Egad – Mickey And Wintermute Agree!

Mickey will love this Daily Docket post….

Yes, the title is provocative, intentionally, and could be hedged in “ifs,” “ands,” “buts,” and innumerable other qualifiers; but I’ll stick with it on this simple ground: nowhere in the United States Constitution is a 60-vote majority required to end debate on a bill. Two-thirds majorities are required only in a few specified instances. Search the Constitution yourself if you don’t believe me.

I’ve been spouting off about this for years, but a recent short piece by my fellow Harvardian Matthew Yglesias gave me a link to save and blog about, which I had been wanting to do after hearing the new Democratic majorities in the House and Senate use the possibility of filibuster by Senate Republicans as an excuse for the Democrats’ own chicken-shitness. – Filibusters Are Unconstitutional

Unconstitutional is Mickey’s favorite word. However, I do agree that some “rule” invoked long ago should not be used to circumvent the Constitutional role of the Congress.

In 1841, when the Democratic minority hoped to block a bank bill promoted by Kentucky Senator Henry Clay, he threatened to change Senate rules to allow the majority to close debate. Missouri Senator Thomas Hart Benton rebuked Clay for trying to stifle the Senate’s right to unlimited debate.

Three quarters of a century later, in 1917, senators adopted a rule (Rule 22), at the urging President Woodrow Wilson, that allowed the Senate to end a debate with a two-thirds majority vote, a device known as “cloture.” The new Senate rule was first put to the test in 1919, when the Senate invoked cloture to end a filibuster against the Treaty of Versailles. Even with the new cloture rule, filibusters remained an effective means to block legislation, since a two-thirds vote is difficult to obtain. Over the next five decades, the Senate occasionally tried to invoke cloture, but usually failed to gain the necessary two-thirds vote. Filibusters were particularly useful to Southern senators who sought to block civil rights legislation, including anti-lynching legislation, until cloture was invoked after a fifty-seven day filibuster against the Civil Right Act of 1964. In 1975, the Senate reduced the number of votes required for cloture from two-thirds to three-fifths, or sixty of the current one hundred senators.  – U.S. Senate