05/15/2012 04:19 pm ET Updated May 15, 2012

Unconstitutional Filibuster? Let's Do It, Let's Sue The Senate!

Lots of people agree that our government is currently bogged down in a morass of dysfunction that's so disastrous that it's basically criminal. And I do not use that word lightly.

People who hold other people hostage are criminals, and the elected criminals came very close to murdering the entire global economy when they took the debt ceiling hostage. And if you recall, the deal that was crafted to avoid that mess involved the creation of a Super Committee that was tasked with creating a package of spending cuts and revenue adds to bring budgetary discipline to Congress. They needed a supermajority to agree on a plan. And they failed.

Fie on supermajorities! The constant need for the approval of a supermajority is uniquely culpable for the way everything has ground to a halt in the legislature. Bills don't move, appointees don't get placed, and everyone's "grand bargains" fail to materialize. Whether by filibuster or through some special arrangement, the supermajority has turned our Congress into a joke. The abuse of the supermajority is legitimately something both parties are guilty of. It just happens to be the case that the out-of-power GOP is on the crest of this wave of mutilation and taking the abuse to new heights.

Is there anyone we can sue over this? Actually, according to Ezra Klein, this might be a possibility:

According to Best Lawyers, “the oldest and most respected peer-review publication in the legal profession,” Emmet Bondurant “is the go-to lawyer when a business person just can’t afford to lose a lawsuit.” He was its 2010 Lawyer of the Year for Antitrust and Bet-the-Company Litigation, but has now bitten off something even bigger: bet-the-country litigation.

Bondurant thinks the filibuster is unconstitutional, and, alongside Common Cause, where he serves on the board of directors, he’s suing to have the Supreme Court abolish it.

Bondurant's case against the filibuster is founded mainly in historical fact, and to get the best sense of it, you really need to go read Klein's whole thing. To briefly summarize, however, the Senate never intended the filibuster to be put to such widespread use, and the framers were uniquely opposed to supermajorities. As Klein details:

In Federalist 22, Alexander Hamilton savaged the idea of a supermajority Congress, writing that “its real operation is to embarrass the administration, to destroy the energy of government and to substitute the pleasure, caprice or artifices of an insignificant, turbulent or corrupt junta, to the regular deliberations and decisions of a respectable majority.”

In Federal 58, James Madison wasn’t much kinder to the concept. “In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule; the power would be transferred to the minority.”

"The Constitution prescribed six instances in which Congress would require more than a majority vote: impeaching the president, expelling members, overriding a presidential veto of a bill or order, ratifying treaties, and amending the Constitution," said Klein. And Bondurant's case is that in accepting these exceptions, the framers excluded all others -- like stifling the Senate's ability to make laws, and permitting presidential appointees to be sandbagged.

But if we merely cite the supermajoritarians for misusing these parliamentary processes, we're actually letting them off the hook, for their crimes are not just occasional moments of abuse -- the supermajority is actually straight up allowing widespread dereliction of duty. It's like your lawmakers are telling you, "Oh, man, I would help you move this weekend, but my mom's in town, sorry!" Only this is what they say every weekend, and their mom's never actually in town, and they're not sorry.

More than anything else, the supermajority is used as a dodge. It's immunity from ever having to make a choice that might lead to a member losing their seat.

Consider the many "debt commission" efforts that have been undertaken in the past three years. In every case, these commissions were formed to address what was sold as an urgent need. In every case, they were created because someone had to make "the tough choices." In every case, there was some sort of supermajority requirement. And in every case, the supermajority requirement was added so that the commission would get bogged down by design. (From there, everyone could blame everyone else for the failure.)

Or, to use an example that remained in the legislature, consider the fate of the "public option." Proponents of health care reform loved the public option. But they were told that there weren't enough votes -- even with 60 members on the Democratic side -- to surmount the supermajority requirement that was, at the time, being universally applied to everything the Senate did. Too bad, guys!

But then, the Democrats lost Ted Kennedy's Senate seat to Scott Brown, which meant there was now 41 GOP votes to oppose any health care reform package. So the Democrats ran the ball through the tiny gap afforded them by the budget reconciliation process. But wait, now! Budget reconciliation requires only a simple majority, so with that in mind, could we maybe have the public option? Many whip counts reported at the time suggested that the public option was close to having a sufficient number of votes, but the Democrats' leaders, faced with the "tough choice" of adding the public option and getting endlessly buffeted with accusations of "socialism," balked. "Don't worry, we'll take a vote on that in a few months." Did they ever vote on it? No.

This is what the supermajority does: It allows lawmakers to have a tidy excuse for why nothing ever gets done, and why voters should always blame someone else. It's ridiculous and pathetic. Everyone talks about the need to "make the hard choices," but they really just want the "hard choices" to be made by other people first, so that it's "safe." That's the formula for self-propelled gridlock.

Of course, there are reformers within the body that want to change this. Klein notes that Senate Majority Leader Harry Reid is presenting himself as a supermajority abuser who has seen the error of his ways. But the political pressure against the Senate making a clean break from this drug are enormous. Even if Reid is being sincere, his calls to end the filibuster will be easily interpreted as cynicism: he just wants his Democratic majority to be able to pass Democratic things. And if the GOP takes back the Senate, they will be viewed in the same cynical fashion if they try to reform the filibuster. (And if the Democrats accede to a reform as a minority party, they'll be pilloried by their base for wussing out.)

It would seem, then, that there's little hope for an internal reform of the supermajority process. So piss it, let's sue the Senate. Let us sue the everloving bejeezus out of them.

Is the filibuster unconstitutional? [Ezra Klein @ WaPo]

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