The Filibuster is Unconstitutional

You’ve probably been hearing a lot about the filibuster these days. But here’s one thing about this old Senate rule you might not know: the filibuster actually violates the Constitution.

41 Senate Republicans, who represent only 21 percent of the American population, are blocking the “For the People Act,” which is supported by 67 percent of Americans. They’re also blocking an increase in the minimum wage to $15 an hour, supported by 62 percent of Americans. And so much else.  

Even some so-called moderate Democrats, like Joe Manchin and Krysten Sinema, have outsized power to block crucial legislation thanks to the filibuster.

Many of those who defend the filibuster consider themselves “originalists,” who claim to be following the Constitution as the Framers intended. 

But the filibuster is not in the Constitution. In fact, the Framers of the Constitution went to great lengths to ensure that a minority of senators could not thwart the wishes of the majority. 

After all, a major reason they called the Constitutional Convention was that the Articles of Confederation (the precursor to the Constitution) required a super-majority vote of nine of the thirteen states, making the government weak and ineffective.

James Madison argued against any super-majority requirement, writing that “the fundamental principle of free government would be reversed,“ and “It would be no longer the majority that would rule: the power would be transferred to the minority.”

Alexander Hamilton, meanwhile, warned about “how much good may be prevented, and how much ill may be produced” if a minority in either house of Congress had “the power of hindering the doing what may be necessary.”

Hence, the Framers required no more than a simple majority vote in both houses of Congress to pass legislation. They carved out specific exceptions, requiring a super-majority vote only for rare, high-stakes decisions: 

Impeachments.

Expulsion of members.

Overriding a presidential veto.

Ratification of treaties.

Constitutional amendments.

By being explicit about these exceptions where a super-majority is necessary, the Framers underscored their commitment to majority rule for the normal business of the nation.

They would have balked at the notion of a minority of senators continually obstructing the majority, which is now the case with the filibuster. 

So where did the filibuster come from? 

The Senate needed a mechanism to end debate on proposed laws, and move laws to a vote — a problem the Framers didn’t anticipate. In 1841, a small group of senators took full advantage of this oversight to stage the first filibuster. They hoped to hamstring the Senate and force their opponents to give in by prolonging debate and delaying a vote. 

This was what became known as the “talking filibuster” as popularized in the film Mr. Smith Goes to Washington. But the results were hardly admirable.

After the Civil War, the filibuster was used by Southern politicians to defeat Reconstruction legislation, including bills to protect the voting rights of Black Americans.

In 1917, as a result of pressure from President Woodrow Wilson and the public, the Senate finally adopted a procedure for limiting debate and ending filibusters with a two-thirds vote (67 votes). In the 1970s, the Senate reduced the number of votes required to end debate down to 60, and no longer required constant talking to delay a vote. 41 votes would do it.

Throughout much of the 20th century, despite all the rule changes, filibusters remained rare. Southern senators mainly used them to block anti-lynching, fair employment, voting rights, and other critical civil rights bills.

That all changed in 2006, after Democrats won a majority of Senate seats. Senate Republicans, now in the minority, used the 60-vote requirement with unprecedented frequency. After Barack Obama became president in 2008, the Republican minority blocked virtually every significant piece of legislation. Nothing could move without 60 votes.

In 2009, a record 67 filibusters occurred during the first half of the 111th Congress — double the entire 20-year period between 1950 and 1969. By the time the 111th Congress adjourned in December 2010, the filibuster count had ballooned to 137.

Now we have a total mockery of majority rule. And it bears repeating that just 41 Senate Republicans, representing only 21 percent of the country, are blocking critical laws supported by the vast majority of Americans. 

This is exactly the opposite of what the framers of the Constitution intended. They unequivocally rejected the notion that a minority of Senators could obstruct the majority. 

Every time Republicans use or defend the filibuster they’re directly violating the Constitution — the document they claim to be dedicated to. How can someone profess to be an “originalist” and defend the Constitution while repeatedly violating it?

Senators whose votes have been blocked by a minority should have standing to take this issue to the Supreme Court. And the Court should abolish the filibuster as violating the U.S. Constitution.

Ten Senate Republican have proposed a COVID relief bill of about $600 billion. That’s less than a third of Biden’s plan. They promise “bipartisan support” if he agrees.

Their proposal isn’t a compromise. It would be a total surrender. It trims direct payments and unemployment aid that Americans desperately need. Biden should reject it out of hand.

Republicans say America can’t afford Biden’s plan. “We just passed a program with over $900 billion in it,” groused Senator Mitt Romney.

Rubbish. We can’t afford not to. Millions of people are hurting.

Besides, with the economy in the doldrums it’s no time to worry about too much spending. The best way to reduce the debt as a share of the economy is to get the economy growing again.

Beyond COVID relief, Biden has other proposals waiting in the wings, such as repairing aging infrastructure and building a new energy-efficient one. These would make the economy grow even faster over the long term – further reducing the debt’s share.

There’s no chance that public spending will “crowd out” private investment. If you hadn’t noticed, borrowing is especially cheap right now. Money is sloshing around the world in search of borrowers.  

It’s hard to take Republican concerns about debt seriously when just four years ago they had zero qualms about enacting one of the largest tax cuts in history, largely for big corporations and the super-wealthy.

If they really don’t want to add to the debt, they have another alternative: A tax on super-wealthy Americans.

The total wealth of America’s 660 billionaires has grown by a staggering $1.1 trillion since the start of the pandemic, a 40 percent increase. They alone could finance almost all of Biden’s COVID relief package and still be as rich as they were before the pandemic. So why not a temporary emergency COVID wealth tax?

Let’s be honest. The real reason Republicans don’t want Biden’s plan is they fear it will work.

This would be the Republican’s worst nightmare: All the anti-government claptrap they’ve been selling since Ronald Reagan will be revealed as nonsense.

Government isn’t the problem and never was. Bad government is the problem, and Americans have just had four years of it. Biden’s success would put into sharp relief Trump and Republicans’ utter failures on COVID and jobs.

If Biden gets his plans through, he and the Democrats would reap the political rewards in 2022 and beyond.Democrats might even capture the presidency and Congress for a generation. After FDR rescued America, the Republican Party went dark for two decades.

Trumpian Republicans in Congress have an even more diabolical motive for blocking Biden. They figure if Americans remain in perpetual crises and ever-deepening fear, they’ll lose faith in democracy itself.

This would open the way for another strongman demagogue in 2024 – if not Trump, a Trump-impersonator like Ted Cruz, Josh Hawley, or Trump Junior.

If Biden is successful, though, Americans’ faith in democracy might begin to rebound – marking the end of the nation’s flirtation with fascism. If he helps build a new economy of green jobs with good wages, even Trump’s angry white working-class base might come around.

Biden doesn’t really need Republicans, anyway. With their razor-thin majorities in both houses of Congress, Democrats can enact Biden’s plans without a single Republican vote.  

My worry is Biden may want so much to demonstrate bipartisanship that his plans get diluted to the point where Republicans get what they want: Failure.

Forget bipartisanship. Mitch McConnell and Senate Republicans didn’t give a hoot about bipartisanship when they and Trump were in power.

If Republicans try to stonewall Biden’s COVID relief plan, Biden and the Democrats should go it alone through a maneuver called “reconciliation,” allowing a simple majority to pass budget legislation.

If Republicans try to block anything else, Biden and the Democrats should scrap the filibuster – which now requires 60 senators to end debate. The filibuster isn’t in the Constitution. It’s anti-democratic, giving a minority of senators the power to block the majority. It was rarely used for most of the nation’s history.

The filibuster can be ended by a simple majority vote. Democrats now have the power to scrap it. Biden will have to twist the arms of a few recalcitrant Democrats, but that’s what presidential leadership often requires.

The multiple crises engulfing America are huge. The window of opportunity for addressing them is small. If ever there was a time for boldness, it is now.

Trump’s Final Days: Who Stood Up to Him?

We always knew Trump would contest the election results. He’s spreading wilder and wilder conspiracy theories about non-existent voter fraud. Of course, these claims haven’t held up in court because there’s zero evidence. But the integrity of thousands of people responsible for maintaining American democracy is being tested as never before.

Tragically, most Senate and House Republicans are failing the test by refusing to stand up to Trump. Their cowardice is a devastating betrayal of public trust, and will have lasting consequences.

They worry that speaking out could invite a primary challenge. But democracy depends on moral courage. These Republicans are profiles in cowardice.

Fortunately for our democracy, many lower-level Republican office-holders are passing the test.

Take, for example, Brad Raffensperger – Georgia’s Republican secretary of state who oversaw the election there and describes himself as “a Republican through and through and never voted for a Democrat.” 

Raffensperger is defending Georgia’s vote for Biden, rejecting Trump’s accusations of fraud. He spurned overtures from Senator Lindsey Graham, who asked if Raffensperger could toss out all mail-in votes from counties with high rates of questionable signatures. And Raffensperger dismissed demands from Georgia’s two incumbent Republican senators, Kelly Loeffler and David Perdue, both facing tougher-than-anticipated runoffs) that he resign.

“This office runs on integrity,” Raffensperger says, “and that’s what voters want to know, that this person’s going to do his job.”

Raffensperger has also received death threats from Republican voters inflamed by Trump’s allegations. Election officials in Nevada, Michigan, Pennsylvania, and Arizona are also reporting threats. But they’re not giving in to them.

Let’s not forget other public officials in the Trump administration who have stood up for democracy and against Trump – public health officials unwilling to lie about Covid-19, military leaders unwilling to back Trump’s attacks on Black Lives Matter protesters, inspectors general unwilling to cover up Trump corruption, U.S. foreign service officers unwilling to lie about Trump’s overtures to Ukraine, intelligence officials unwilling to bend their reports to suit Trump, and Justice Department attorneys refusing to participate in Trump’s obstructions of justice.

Some of them lost their jobs. Some quit. Many were demoted. A few have been threatened with violence. That’s the price they had to pay to do what’s morally right under Trump, who has no idea what it means to do what’s morally right.

The question after January 20, when Trump is gone from the White House, is how many Senate and House Republicans will find the integrity to stand up for America rather than bend to the conspiracy theories and hatefulness that will be the legacies of Trumpism.

How Mitch McConnell’s Republicans are Destroying America

Senate Republicans don’t want to extend the extra $600 a week in unemployment benefits, even though unemployment has soared to the highest levels since the Great Depression.

Even before the pandemic, nearly 80 percent of Americans lived paycheck to paycheck. Now many are desperate, as revealed by lengthening food lines and growing delinquencies in rent payments.    

McConnell’s response? He urges lawmakers to be “cautious” about helping struggling Americans, warning that “the amount of debt that we’re adding up is a matter of genuine concern.” 

McConnell seems to forget the $1.9 trillion tax cut he engineered in December 2017 for big corporations and the super-rich, which blew up the debtdeficit.  

That’s just the beginning of the GOP’s handouts for corporations and the wealthy. As soon as the pandemic hit, McConnell and Senate Republicans were quick to give mega-corporations a $500 billion blank check, while only sending Americans a paltry one-time $1,200 check.

The GOP seems to believe that the rich will work harder if they receive more money while people of modest means work harder if they receive less. In reality, the rich contribute more to Republican campaigns when they get bailed out.

That’s precisely why the GOP put into the last Covid relief bill a $170 billion windfall to Jared Kushner and other real estate moguls, who line the GOP’s campaign coffers. Another $454 billion of the package went to backing up a Federal Reserve program that benefits big business by buying up their debt.

And although the bill was also intended to help small businesses, lobbyists connected to Trump – including current donors and fundraisers for his reelection – helped their clients rake in over $10 billion of the aid, while an estimated 90 percent of small businesses owned by people of color and women got nothing.

The GOP’s shameful priorities have left countless small businesses with no choice but to close. They’ve also left 22 million Americans unemployed, and 28 million at risk of being evicted by September. 

For the bulk of this crisis, McConnell called the Senate back into session only to confirm more of Trump’s extremist judges and advance a $740 billion defense spending bill. 

Throughout it all, McConnell has insisted his priority is to shield businesses from Covid-related lawsuits by customers and employees who have contracted the virus.

The inept and overwhelmingly corrupt reign of Trump, McConnell, and Senate Republicans will come to an end next January if enough Americans vote this coming November.

But will enough people vote during a pandemic? The HEROES Act provides $3.6 billion for states to expand mail-in and early voting, but McConnell and his GOP lackeys aren’t interested. They’re well aware that more voters increase the likelihood Republicans will be booted out.

Time and again, they’ve shown that they only care about their wealthy donors and corporate backers. If they had an ounce of concern for the nation, their priority would be to shield Americans from the ravages of Covid and American democracy from the ravages of Trump. But we know where their priorities lie.