Solid Evidence Emerges of Senate Republicans’ Unconstitutional Abuse of Power

Original Link: http://seminal.firedoglake.com/diary/32561

In a scathing editorial published two weeks ago on my blog site, The ‘Skeeter Bites Report, this writer argued forcefully that the minority Republicans in the U.S. Senate were engaging in an unprecedented — and unconstitutional — abuse of power with their blanket use of the filibuster to block passage of virtually every piece of legislation proposed by the Obama administration and the Democratic majority in Congress.

"Senate Republicans . . . are vowing to use their newly-bolstered filibuster power to stymie virtually every domestic policy initiative that [President] Obama proposes," the editorial thundered. "To say that this would paralyze the Senate would be a gross understatement. This is nothing less than a declaration by the Republicans of an insurrection against the administration and the majority party in Congress intended to make it impossible for the president to govern effectively.

"This is a flat-out abuse of power that imposes a tyranny of the minority," the editorial continued, "a tyranny that is clearly unconstitutional and violates the most precious tenet of democracy: That within the parameters set by the Constitution, the majority rules."

In the two weeks since that editorial was published, solid evidence has emerged to back up that conclusion.

NUMBER OF FILIBUSTERS SOAR SINCE OBAMA’S INAUGURATION

For starters, the McClatchy Newspapers, in an analysis on the performance of the Senate since the current 111th Congress took office 14 months ago, reported that Senate Republicans "are using the filibuster to limit and often derail Democrats’ initiatives, paralyzing the Senate and making it nearly impossible to accomplish even the most routine matters."

McClatchy noted that in the more than 13 months since President Obama took office, the number of filibusters — and the cloture votes to kill them — have risen dramatically. And they have come on a range of issues so broad as to be without precedent. To date, there have been 42 votes to invoke cloture, of which all but four were successful.

McClatchy estimates that if the partisan warfare continues, by the time the 111th Congress ends its term in December 2012, there could be as many as 153 cloture votes — an all-time record high.

After Thursday’s health-care reform summit between Obama and congressional leaders, in which both parties essentially dug in their heels, there is absolutely zero evidence that the warfare won’t end any time soon. On the contrary, it is certain to solidify even further.

The bickering has tied up the Senate in knots — and the GOP minority has made it abundantly clear, both privately and publicly, that a filibuster-proof 60-vote "super majority" will be required to pass "not only major Democratic programs, but also many routine proposals."

The 100-member Senate’s 58 Democrats and two allied independents — Bernie Sanders of Vermont and Joe Lieberman of Connecticut — ostensibly lost their filibuster-proof majority on February 4 with the swearing-in of Senator Scott Brown (R-Massachusetts), although Brown quickly broke ranks with his fellow Republicans to cast his first vote in favor of a $15 billion job-creation bill.

CONSTITUTION DOES NOT AUTHORIZE ‘SUPER MAJORITY’ TO PASS BILLS

However, the Senate Republicans’ determination to impose a 60-vote requirement in order to pass bills is not supported by the Constitution. The filibuster is a creature of the Senate itself. It is employed under the internal rules of the Senate.

Under Article I of the Constitution — which spells out the legislative authority of Congress — each house is free to create its own rules for parliamentary procedure. But Senate Rule 22, which establishes the filibuster, is neither part of the Constitution nor is it a statute.

Nowhere does the Constitution grant the minority party in either chamber of Congress any authority to impose a requirement that a super-majority of votes be reached in order to pass legislation.

To the contrary, in only three instances does the Constitution specifically require a super-majority: the passage of amendments to the Constitution itself; the ratification by the Senate of treaties; and the override of presidential vetoes of legislation approved by Congress.

In each case, a two-thirds majority (67 votes in the 100-member Senate, 290 votes in the 435-member House) is required.

290 BILLS PASSED BY HOUSE STALLED IN SENATE BY GOP FILIBUSTERS

That Senate Republicans have imposed an unconstitutional "tyranny of the minority" was made even more evident last Tuesday, when House leaders made public a list of 290 bills that passed in the lower chamber — only to be stalled in the Senate by the Republicans’ blanket use of the filibuster.

Many of those bills passed the House with broad bipartisan support, including a critically-needed measure aimed at bolstering the security of the Internet. That bill passed by an overwhelmingly bipartisan majority of 422 to five.

Another is a bill to crack down on predatory mortgage lending. That measure passed in May by a 300-114 margin, with 60 Republicans voting "aye."

Still another is a measure to stimulate job growth by increasing opportunities for small-business entrepreneurs. That bill also passed the House in May by a whopping 406-15 margin, with 159 Republicans voting in favor.

In September, the House passed, by a lopsided 406-18 — with 161 Republican "ayes" — a measure to prohibit increases in medicare part B premiums charged to millions of senior citizens who do not receive their annual cost-of-living increase in their Social Security benefits.

GOP ALSO BLOCKED CONFIRMATION OF SCORES OF OBAMA NOMINEES

But legislation isn’t the only thing that Senate Republicans have been tying up for months. They’ve also stymied the confirmations of scores of nominees to high-level positions in the Obama administration by placing holds on their nominations — preventing the Senate from holding confirmation votes.

The Republicans did an about-face and allowed confirmation votes on the president’s nominees only after Obama threatened to take advantage of Congress’ week-long Presidents Day break to invoke his executive authority to make recess appointments.

The Senate confirmed 27 of the president’s nominees on February 12 after Obama made his threat in a testy exchange with Senate Minority Leader Mitch McConnell (R-Kentucky) during a White House meeting with congressional leaders.

An unusually high number of nominees to top positions in the Obama administration — 63 in all — "had been stalled in the Senate because one or more senators placed a hold on their nomination," the president said in a statement. "And so . . . I told Senator McConnell that if Republican senators did not release these holds, I would exercise my authority [under Article II of the Constitution] to fill critically-needed positions in the federal government temporarily through the use of recess appointments."

HOYER BLAMES SENATE GOP INTRANSIGENCE FOR PARALYSIS ON CAPITOL HILL

House Majority Leader Steny Hoyer (D-Maryland) put the blame squarely on Republicans for the ongoing paralysis in the Senate.

Appearing on MSNBC, Hoyer accused the Senate Republican leadership of having decided that "failure and gridlock are to its political benefit, and as a result, we’ve had more requests for cloture or filibuster votes than at any time in history."

The result, said Hoyer, is that the blanket filibusters by GOP senators "has brought, in effect, the Senate’s ability to do its business to a standstill sometimes and to a slow walk at others."

SENATE GRIDLOCK A FACTOR IN BAYH’S RETIREMENT

And that paralysis is a major reason why Senator Evan Bayh (D-Indiana) has decided not to seek re-election. In an op-ed column published February 20 in The New York Times, Bayh wrote that the filibuster, which "historically . . . was employed to ensure that momentous issues receive a full and fair hearing" has instead "come to serve the exact opposite purpose — to prevent the Senate from even conducting routine business."

Bayh noted that the Senate last fall "had to overcome two successive filibusters to pass a bill to provide millions of Americans with extended unemployment insurance." Even though there was no opposition to the measure — it passed unanimously, with two senators absent — "some senators saw political advantage in drawing out debate, thus preventing the Senate from addressing other pressing matters."

Historically, filibusters have been employed in the Senate most often to block passage of reform legislation, ranging from the civil rights acts of the 1950s and 1960s to the post-Watergate clean-government measures of the 1970s.

It was as a result of massive public outrage against the use of filibusters to block reform bills aimed at curbing abuses of government power under the administration of President Richard Nixon in the 1970s that prompted a change of Senate rules in 1975 to to reduce the number of votes required to kill off filibusters from 67 — the same two-thirds majority required to override presidential vetoes, ratify treaties and pass constitutional amendments — to the present 60.

But who would have thought back then that a move aimed at curbing abuses of power by the executive branch would one day pave the way for abuses of power by the minority party in the legislative branch?

‘MINORITY TYRANNY’ AN AFFRONT TO REPRESENTATIVE DEMOCRACY

What was originally intended to protect the minority party’s right to debate and push for a compromise on legislation is now being used by the minority party to totally stymie the agenda of not only the majority party, but also that of the president.

This wholesale use of the filibuster by minority Senate Republicans is totally without precedent and is in no way supported by the Constitution.

Indeed, the U.S. Senate is the only freely elected legislative body in the world in which the minority party can thwart the will of the majority party, unless the majority party can muster 60 votes. It is an affront to representative democracy and the clearly expressed will of the American people who voted for the majority party in the last general election.

The time is past due for the majority Democrats in the Senate to break the logjam by either invoking the reconciliation process to get those 290 House-passed bills to the president’s desk for his signature, or by invoking the so-called "nuclear option," in which Vice President Joe Biden, in his constitutional capacity as president of the Senate, declares the GOP’s blanket filibuster unconstitutional.

Enough is enough! Either way, this "tyranny of the minority" in the Senate must be brought to an end — now.