Wednesday, January 20, 2010

The Filibuster: An Open Letter to Vice President Joe Biden

Dear Vice President Biden,

I'm writing to you because the time for the mis-use of the filibuster tool in the United States Senates has to come to an end. This un-constitutional blockage is now turning into a defining element of policy-making in our nation -- and it can be stopped by you.

Article I, Section 3 of the United States Constitution expressly says that the vice president as the presiding officer of the Senate should cast the deciding vote when senators are “equally divided.” The procedural filibuster currently in use in the U.S. Senate does an end run around this constitutional requirement, which presumed that on the truly contested bills there would be ties.

With supermajority voting, the Senate is never “equally divided” on the big, contested issues of our day, so that it is a rogue senator, and not the vice president, who casts the deciding vote. The procedural filibuster effectively disenfranchises the vice president, eliminating as it does one of the office’s only two constitutional functions. Yet the founders very consciously intended for the vice president, as part of the checks and balances system, to play this tie-breaking role — that is why Federalist No. 68 so specifically argued against a sitting member of the Senate being the presiding officer in place of the vice president. But the bigger reason for the rule was to keep a minority from walking out and thereby blocking a majority vote.

In Federalist No. 75, Hamilton dismissed a supermajority rule for a quorum thus: “All provisions which require more than a majority of any body to its resolutions have a direct tendency to embarrass the operations of the government and an indirect one to subject the sense of the majority to that of the minority.” It would be illogical for the Constitution to preclude a supermajority rule with respect to a quorum while allowing it on an ad hoc and more convenient basis any time a minority wanted to block a vote. Yet that is essentially what Senate Rule 22 achieves on any bill that used to require a majority vote.

To stop the current unconstitutional abuse of the filibuster tool, the best currently-available option would be for the president of the Senate, the vice president himself -- that's you, buddy -- to issue an opinion from the chair that the filibuster is unconstitutional. Our first vice presidents, John Adams and Thomas Jefferson, felt a serious obligation to resolve the ties and tangles of an evenly divided Senate, and they would not have shrunk from such a challenge.

The founding fathers of our nation would have expected us to do something about this unconstitutional filibuster. In Federalist No. 75, Hamilton denounced the use of supermajority rule in these prophetic words: “The history of every political establishment in which this principle has prevailed is a history of impotence, perplexity and disorder.” That is a suitable epitaph for what has happened to the Senate.

Joe Biden, your moment has come. Do not shrink from your mission. It is up to you to stop the unconstitutional abuse of the filibuster tool and to fix the republic. This will be a bold step; do not be afraid to take it.

If your administration wants any hope of accomplishing the rest of its bold agenda, this is the first bold move that will be required, and we, the people, demand that you take it.

Sincerely yours,

Garlynn G. Woodsong

(With thanks to this op-ed piece in the Ny Times.)