Could Vice President Harris Take a Page From Nixon and Challenge the Filibuster?

Yesterday Senate Majority Chief Chuck Schumer held a vote within the Senate to easily open a dialogue on the Freedom To Vote Act, authored by Senator Amy Klobuchar and co-authored by Senator Joe Manchin. After the failure of the For The People Act to get even one single vote from any Republican, Manchin instructed his fellow Democrats that he may tweak the laws to each shield the vote and get Republican votes. Clearly, he failed.

However the bill did functionally get 50 votes and, with the Vice President’s tie-breaking vote as President of the Senate, that’s sufficient to make it into legislation in keeping with the Structure.

But it surely was stopped by the filibuster.

The filibuster isn’t within the Structure. It’s not a part of any legislation. And it’s damaging America.

The Founding era had been nearly universally against something resembling the filibuster; James Madison fought against (political) minority rule right up until his death in 1836.

Right now’s filibuster was fine-tuned into its current form by the “Grandfather of the Confederacy” John C. Calhoun, and its solely goal then was to block discussion of legislation that involved slavery within the South. After the Civil Struggle, it was nonetheless used to forestall equal rights for African People and different minorities…because it was yesterday.

Historian Adam Jentleson notes, “[F]rom the 87 years between when Reconstruction ended till 1964, the one class of laws in opposition to which the filibuster was deployed to actively cease payments of their tracks was civil rights laws.”

The filibuster is only a rule the Senate has determined to impose on itself and that it may possibly change anytime it needs.

And it’s an unconstitutional rule, though senators have discovered it such a handy place to place blame for inaction (reasonably than on themselves) that no one has challenged it as such.

However the Structure is evident. Every state has two senators who characterize it (Article I, Section 3). And, wrote the Framers in Article V of the Structure, “[N]o state, with out its consent, shall be disadvantaged of its equal suffrage within the Senate.”

Democrats within the Senate characterize 41 million extra folks than Republicans and maintain 51 out of 101 Senate votes (together with the VP), but they’re instructed that below the senate guidelines they will’t train or adequately characterize both of their majorities. As an alternative, a mere 41 Republican senators can block their actions by means of the filibuster.

That could be a clear and egregious lack of states’ “equal suffrage” assured within the Structure. Most People know of the precept as “one particular person, one vote”: the idea that no citizen’s vote has extra energy than anothers’. Or, on this case, no state has extra energy within the Senate than some other state.

However within the Senate proper now, 41 Senators have the facility to dam the votes of 59 others and thus kill any laws they don’t like — together with urgently wanted legal guidelines just like the Freedom To Vote Act, the John Lewis Voting Rights Act or the For The Folks Act. That’s not “equal suffrage.”

Again in January of 1957, Vice President Richard Nixon and President Dwight Eisenhower had simply been re-elected within the 1956 election. Nixon was presiding, as President of the Senate, over the opening session of the eighty fifth Congress, and a problem of amending the Senate filibuster rule got here earlier than him.

Nixon opined that the supermajority requirement then needed to change the filibuster was unconstitutional below the idea of equal suffrage.

The Senate ought to be capable to change its guidelines, he stated, by a easy majority vote as a result of the facility of the Senate to vary its personal guidelines was licensed by the Structure and the Structure didn’t specify it was one of many three particular points (impeachment, ratification of Constitutional amendments, and treaties with different nations) that required supermajorities.

Nixon’s problem was later cited by each Vice Presidents Humphrey (1967) and Rockefeller (1975) and have become the premise by which Senate Majority Leaders Harry Reid and Mitch McConnell carved holes into the filibuster (for approving cupboard officers, federal judges and Supreme Court docket justices) with easy majority votes in 2013 and 2017.

Difficult the filibuster on a constitutional foundation isn’t a brand new or distinctive concept, though it’s gotten far too little protection within the press (in all probability as a result of most People don’t even perceive what the filibuster is). I final ranted right here about it in March of this year together with a dive into its racist historical past, in addition to in January.

The Brennan Center for Justice did a deep dive into this matter a full 12 months in the past and got here to the identical conclusion: the filibuster is a relic and nearly actually violates the spirit, if not the textual content, of the Structure. As they famous, “[T]he filibuster continues to undermine an actual democracy.”

Constitutional legislation professors Erwin Chemerinsky and Burt Neuborne equally proposed in a LA Times op-ed in March of this 12 months that Harris broaden on the instance of Nixon and easily declare the filibuster unconstitutional, forcing the Senate to take care of the difficulty on a constitutional reasonably than a purely political foundation.

The worry cited by Democrats for eliminating or considerably altering the filibuster is that the Senate could find yourself in Republican palms after which they’d have a tough time blocking laws to which they object.

However isn’t majority rule the essence of democracy?

As an alternative, because the Sixties, the filibuster has become the favorite anti-democratic tool of well-funded special interests just like the American Petroleum Institute, the US Chamber of Commerce, and Huge Banking to forestall any kind of significant motion on local weather change, labor rights and client protections (amongst different issues).

For instance, after the brutal 2012 slaughter of 20 first-graders and 6 adults at Sandy Hook, Senators Joe Manchin (D-WV) and Pat Toomey (R-PA) put collectively a modest invoice to extend the usage of background checks to buy weapons.

Totally 55 senators supported the laws, as did 80–90% of the American public, however Republicans beholden to the gun industry launched a filibuster, killing the laws by requiring 60 votes for passage.

Given the demographic and political modifications in America at the moment — together with the substantial shift within the Overton Window defining what’s politically regular or acceptable to debate within the media (who may have imagined 5 years in the past that Bernie Sanders could be driving the mainstream of the Democratic Social gathering?) — ending Republican obstruction and doing the folks’s enterprise that’s overwhelmingly supported in ballot after ballot is crucial to protect People’ religion in our system.

Largely due to the filibuster that religion has collapsed up to now few many years; it’s one of many larger elements that led to Trump, charging that “the system is rigged,” successful the White Home in 2016. We now have to revive religion in American democracy, or he or somebody like him will likely be again in energy in 3 years.

Democrats should cease being afraid of their very own shadow (Carl Jung pun meant) and get issues accomplished for the American folks.

The catastrophe of Democrats being, as soon as once more, seen as hapless and impotent will do much more to advance the Republicans’ antidemocratic campaign (by inflicting Democrats to lose elections in 2022 and 2024) than any rule within the US Senate.

And wouldn’t or not it’s extraordinary to have our first African American and feminine Vice President puncture the weapon utilized by mostly-male white supremacists to struggle civil rights within the US Senate for over 200 years?

Blow up, or no less than considerably modify, this unconstitutional filibuster now!