Does the fil­i­buster still serve our coun­try well?

The Oklahoman (Sunday) - - OPINION - BY SANFORD LEVINSON Levinson is the W. St. John Gar­wood and W. St. John Gar­wood, Jr. Cen­ten­nial Chair in Law at The Univer­sity of Texas at Austin.

Much of the de­bate about Pres­i­dent Don­ald Trump’s an­nounce­ment to can­cel the De­ferred Ac­tion for Child Ar­rivals, or DACA, pro­gram in six months con­cerns both the fate of nearly 700,000 un­doc­u­mented res­i­dents and the con­sti­tu­tion­al­ity of former Pres­i­dent Barack Obama’s ex­ec­u­tive or­der es­tab­lish­ing DACA in 2012. But there is an­other ap­pli­ca­ble facet of the Con­sti­tu­tion: the fil­i­buster in the Se­nate. With Con­sti­tu­tion Day upon us, it’s an ap­pro­pri­ate time to con­sider fun­da­men­tal prob­lems with our found­ing doc­u­ment.

In De­cem­ber 2010, a ma­jor­ity of both the House and the Se­nate demon­strated their ea­ger­ness to pass a ver­sion of the De­vel­op­ment, Re­lief and Ed­u­ca­tion for Alien Mi­nors (“Dream”) Act that would pro­vide safe haven to un­doc­u­mented peo­ple who had been brought to the United States as chil­dren and had no crim­i­nal record. The House passed the act 216-198, with eight Repub­li­cans vot­ing for it. The bill then went to the Se­nate, where it also had ma­jor­ity sup­port. Obama promised to sign it.

Nev­er­the­less, the bill failed. The act ran into the chain­saw of the dreaded fil­i­buster, by which mem­bers can de­bate end­lessly un­less 60 of them vote for clo­ture. Thus, a 41-sen­a­tor mi­nor­ity can pre­vent any bill from com­ing to a vote.

So the cru­cial vote in the Se­nate wasn’t on the act it­self, but on whether to act. Fifty-five sen­a­tors from both po­lit­i­cal par­ties said yes; forty-five, in­clud­ing five Democrats, said no. In a par­ody of democ­racy, the noes had it, and the Dream Act died. Obama, who had orig­i­nally stated he was pow­er­less, then is­sued the ex­ec­u­tive or­der.

The Con­sti­tu­tion es­tab­lishes only three in­stances where a su­per-ma­jor­ity vote is re­quired for con­gres­sional ac­tion. The rat­i­fi­ca­tion of treaties, the con­vic­tion of the pres­i­dent or other elected of­fi­cials im­peached by the House and the pro­posal of a con­sti­tu­tional amend­ment all re­quire a two-thirds vote. Yet an ob­scure part of Ar­ti­cle I, which sen­si­bly al­lows each house of Congress to es­tab­lish its own rules, was the ba­sis for the 1917 adop­tion by the Se­nate of Rule XXII. It set out the dif­fi­cult process for end­ing fil­i­busters.

For many years, fil­i­busters were un­usual, mounted most of­ten to de­feat civil rights leg­is­la­tion. But dur­ing the past 20 years, they have be­come more rou­tine. Surely it never oc­curred to the Framers that a rule would al­low “a small group of will­ful men,” as Woodrow Wil­son called those who de­feated the Ver­sailles Treat, to up­end the will of the ma­jor­ity.

At­tor­ney Gen­eral Jeff Ses­sions jus­ti­fied re­peal­ing Obama’s or­der by say­ing it ex­hib­ited “dis­re­spect for the leg­isla­tive process.” But why should Amer­i­cans re­spect a leg­isla­tive process that gives a mi­nor­ity of sen­a­tors the abil­ity to block leg­is­la­tion sup­ported not only by ma­jori­ties in both Houses, plus the pres­i­dent, but also by the Amer­i­can public at large?

Trump has sen­si­bly asked why the fil­i­buster should con­tinue to op­er­ate as a po­ten­tial sword over­hang­ing all leg­is­la­tion. Some lawyers have ar­gued that the fil­i­buster is un­con­sti­tu­tional, given the spe­cific ex­cep­tions in the Con­sti­tu­tion. Most lawyers dis­agree, since it is a prac­tice of long stand­ing. But even if it is con­sti­tu­tional, one should ask whether it serves us well in the 21st cen­tury.

Polling data show that an over­whelm­ing ma­jor­ity of the coun­try has what can only be de­scribed as con­tempt of Congress. One rea­son is Amer­i­cans’ recog­ni­tion that bills that might re­solve the coun­try’s cru­cial prob­lems never stand a chance of be­com­ing law be­cause of the nu­mer­ous check and veto points cre­ated by the Con­sti­tu­tion.

There are many such fault lines in the Con­sti­tu­tion, in­clud­ing the clause that seem­ingly al­lows fil­i­busters. It’s high time to have a se­ri­ous na­tional con­ver­sa­tion on whether the fil­i­buster any longer serves, rather than threat­ens, any re­main­ing sense of na­tional unity we might pos­sess.

Sanford Levinson

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