Senate Majority Leader John Thune and several other Republicans have announced plans to defy President Trump’s calls to end the filibuster, reopen the government, and pass laws to fix our country and our elections.
This morning, Trump hosted Republican Senators at the White House for breakfast, where he demanded that Republicans terminate the filibuster and the 60-vote requirement to invoke cloture and pass legislation.
“And we should do our own bills,” Trump said, calling on Republicans to pass “all the things that we want to pass to make our election secure and safe,” including ending mail-in voting and mandating voter ID. He even called John Thune out, noting that the Democrats “won’t do any bill, even a simple bill.”
WATCH:
Trump: It’s time for Republicans to do what they have to do, and that’s terminate the filibuster. It’s the only way you can do it, and if you don’t terminate the filibuster, you’ll be in bad shape. We won’t pass any legislation. There’ll be no legislation passed for three and a quarter— We have three and a quarter years left. That’s a long time. But when they can’t do an extension— and John, I think they’ve done an extension every single time they’ve ever been asked forever. This is the first time they haven’t done an extension. Extensions are supposed to be easy, but if they won’t do an extension, they won’t do any bill, even a simple bill.
And we should do our own bills. We should get out, we should do our own bills, we should open up. We should start tonight with the country’s open congratulations, then we should pass voter ID. We should pass no mail-in voting. We should pass all the things that we want to pass to make our election secure and safe because California is a disaster. Many of the states are disasters, but can you imagine when they vote almost unanimously against voter ID. All we want is voter ID. You go to a grocery store, you have to give ID. You go to a gas station, you give ID.
But for voting, they want no voter ID. It’s only for one reason: because they cheat. We would pass that in 15 minutes. If you don’t get it, you’ll never pass that. You’ll never talk about mail-in ballots. Mail-in ballots make it automatically corrupt. If you have mail in ballots, automatically. It’s correct; even Jimmy Carter, they had the Carter commission after he got out of office, and he had a group of very distinguished people, Democrats and Republicans, and they passed— they recommended things take place. It was a long time ago, and they said about mail in ballots, if there is mail in ballots, there will definitely be corruption, because, you know, they pass through too many hands.
However, Majority Leader John Thune declared after returning from the White House earlier that Trump’s wish is “just not happening,” per ABC.
Other Republican Senators that have been vocal in their opposition include Mike Rounds (R-SD), who said the President made a “really good point,” but doesn’t plan to support the calls. John Kennedy (R-LA) said Wednesday, “when you’re in the minority, we’re not now, but we could be someday, it’s important to have a filibuster.” And Thom Tillis (R-NC) said after the meeting, “there’s nothing that could move me on the filibuster.”
Trump has argued that the Democrats will take the majority next election “because it will be impossible for Republicans to get Common Sense Policies done with these Crazed Democrat Lunatics being able to block everything by withholding their votes.” He has repeatedly called for Senate Republicans to end the filibuster and reopen the government before it’s too late.
“BECAUSE OF THE FACT THAT THE DEMOCRATS HAVE GONE STONE COLD “CRAZY,” THE CHOICE IS CLEAR — INITIATE THE “NUCLEAR OPTION,” GET RID OF THE FILIBUSTER AND, MAKE AMERICA GREAT AGAIN!” the President demanded last Thursday.
“Now WE are in power, and if we did what we should be doing, it would IMMEDIATELY end this ridiculous, Country destroying “SHUT DOWN.”
If the Democrats ever came back into power, which would be made easier for them if the Republicans are not using the Great Strength and Policies made available to us by ending the Filibuster, the Democrats will exercise their rights, and it will be done in the first day they take office, regardless of whether or not we do it,” he said in a follow up post.
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| History
Alexander Hamilton on the Senate Filibuster Rule
“In Federalist No. 22, Alexander Hamilton described supermajority requirements as being one of the main problems with the previous Articles of Confederation, and identified several evils which would result from such a requirement: “To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the sense of the greater number to that of the lesser. […]
The necessity of unanimity in public bodies, or something approaching it, has been founded upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, destroy the government’s energy, and substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority. In those emergencies of a nation, in which the goodness or badness, the weakness or strength of its government, is of the greatest importance, there is commonly a necessity for action.
The public business must, in some way or other, go forward. If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, so that something may be done, must conform to the views of the minority; thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings—hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good. And yet, in such a system, it is even happy when such compromises can take place: for upon some occasions things will not admit of accommodation; then the measures of government must be injuriously suspended, or fatally defeated.
It is often, by the impracticability of obtaining the concurrence of the necessary number of votes, kept in a state of inaction. Its situation must always savor of weakness, sometimes border upon anarchy.”[11]
| Recent Political History
Madison, Hamilton, and Scalia: Original — not nuclear — option to end Gorsuch filibuster
by Victor Williams, Opinion Contributor – 04/06/17
1787 Framers Intended Simple-Majority Senate Confirmation Votes
Constitutional Convention delegates went to 1787 Philadelphia to create a national government that would actually work. The Republic’s first constitution, the Articles of Confederation, which vested Congress with all appointment responsibility, failed quite badly.
The Framers thus remedied the Articles of Confederation’s chief defect by formally separating executive authority from Congress. In both form and function, the Constitution was drafted to provide effective and practical governance through a strong Executive with a strong appointment choice prerogative.
The Senate’s job is to render a timely advisory consent to the president’s choice by a confirmation vote – “ratify or reject.”
The super-majority vote design of the Articles of Confederation failed also badly. Thus the 1787 Convention explicitly rejected general super-majority vote requirements.
The Framers allowed only five explicit exceptions to Senate simple-majority rule:
1. expelling members;
2. ratifying treaties,
3. overriding presidential vetoes;
4. convicting on impeachments, and
5. proposing constitutional amendments.
Madison and Hamilton Advocate for Ratification Based on Constitution’s Simple-Majority Vote Requirement
James Madison, in Federalist 58, argued that a super-majority vote requirement reverses “the fundamental principle of government” by placing the minority in control of the majority: “It would be no longer the majority that would rule: the power would be transferred to the minority.” And Madison wisely warned that such a minority would come to abuse the power to “extort unreasonable indulgences.”
And, in Federalist 22, Alexander Hamilton described how a super-majority requirement distorts governance as “the smaller number will overrule that of the greater.”
Hamilton explained how a super-majority vote requirement “[in] its real operation,” has potential to be used by the few to “embarrass the administration . . . destroy the energy of government,” and hold governance hostage to the “caprice or artifices of an insignificant, turbulent, or corrupt junto.”
Hamilton was unreserved in his warning about a Senate minority faction causing “tedious delays; continual negotiation and intrigue; contemptible compromises of the public good.”
As if prescient of the unprecedented obstruction of our present “uncompromising” partisan age, Hamilton warned that super-majority vote requirements can ultimately lead to anarchy:
“[I]n such a system, it is even happy when such compromises can take place: for upon some occasions things will not admit of accommodation; and then the measures of government must be injuriously suspended, or fatally defeated. It is often, by the impracticability of obtaining the concurrence of the necessary number of votes, kept in a state of inaction. Its situation must always savor of weakness, sometimes border upon anarchy.”
Justice Scalia’s 1991 Originalist View of Appointments
A contemporary originalist view of federal appointments is found in Justice Antonin Scalia’s 1991 Freytag v. Commissioner concurrence:
“The Framers’ experience with post-revolutionary self-government had taught them that combining the power to create offices with the power to appoint officers was a recipe for legislative corruption. … Even if legislators could not appoint themselves, they would be inclined to appoint their friends and supporters.”
Scalia explained that the “Appointments Clause is, intentionally and self-evidently, a limitation on Congress.”
Scalia quotes both James Wilson and James Madison for “good and sufficient reasons” that “the federal appointment power was removed from Congress.”
Scalia described how the Constitution’s plan “depositing appointment power in a fortified President” works to “[ensure] an actual exclusion of the legislature from appointment.”
Academic Support of a Senate Simple-Majority Votes
A rich legal and policy literature has developed to expose the Senate filibuster’s tainted history and the unconstitutional operation of the cloture rule.
Consider Professor Edward Corwin’s decades-old condemnation of the Senate filibuster which “extorts special favors for its authors.” Professor Corwin lamented the “indefensible concessions which a small block of so-called ‘Silver Senators’ have been able to wrest.”
Professor Corwin expressed concern that the obstruction of a Senate minority would come to harm the Senate’s “intended purpose in the constitutional system.” Edward S. Corwin, The President: Office and Powers 348 (1948).
Attorney Edward Bondurant’s 2011 Harvard Journal of Legislation article is perhaps the best contemporary condemnation of the Senate filibuster. He briefs six different ways that filibusters are unconstitutional. A hat tip to Brian Lamb’s C-SPAN’s archive for a video of Bondurant making his case.
Disagreement Becomes Obstruction Becomes Nullification
The destructive cycle of confirmation obstruction and subsequent partisan payback has intensified with each of the past four presidencies. Chief Justice John Roberts captured the downward spiral: “Each political party has found it easy to turn on a dime from decrying to defending the blocking of judicial nominations, depending on their changing political fortunes.”
I have argued against Senate confirmation obstruction and for the appointment discretion of each of the past four presidents. I even supported Obama’s 2012 recess appointments with a Supreme Court amicus curiae brief in the NLRB v. Noel Canning adjudication. [And I later explained during an early 2016 10-day Senate recess how Obama could recess appoint Merrick Garland to SCOTUS. Obama declined to do so.]
Shortly after that 2013 Senate vote to eliminate filibusters for lower court and executive-office confirmations, President Obama explained how partisans have come to “obstruct everything, no matter what the merits, just to refight the result of an election.”
So now the Senate must end filibusters for Supreme Court confirmations. Will the legislative filibuster be next?
Victor Williams is a Washington, D.C. attorney and law professor. He leads America First Lawyers Association – www.americafirstlawyers.com
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