During this long tortuous health care debate, many conservatives have voiced strong defenses of the Senate filibuster, a procedural tactic whereby a minority of US Senators can prevent legislation from receiving an up or down vote on the senate floor. Given how destructive the health care legislation currently being considered in Congress would be to our nation, it is understandable that conservatives would encourage the Senate Republicans to use any procedure to stop these legislative proposals from becoming law.

But it is also important to remember that, not too long ago, it was Senate Democrats who were praising the filibuster as an important check on the power of an out of control majority party and it was Senate Republicans who complained of its use. It is also worth remembering that the filibuster is not quite like those “checks and balances” explicitly written into the US Constitution, such as the Presidential veto power, the division of Congress into two distinct legislative chambers and a judicial branch not directly accountable to the voters.

The filibuster isn’t a hard coded check and balance

The reason why 41 US Senators have the capability of preventing legislation from coming to a vote on the floor of the US Senate is because Senate Rule 22 states the following:

“Is it the sense of the Senate that the debate shall be brought to a close?” And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn — except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting — then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.

But this portion of Senate Rule 22 is a result of a battle that lasted several weeks over thirty years ago.

On March 7, 1975 the Senate voted 56 to 27 to change Senate Rule 22 from the two-thirds of all Senators present and voting requirement to a requirement of three-fifths of all Senators chosen and sworn. In other words, while in 1974 it might have been necessary to gather as many as 67 votes in order to bring that an item of Senate business to a conclusive up or down vote on the Senate floor, after the March 7, 1975 rule change only 60 votes would be required to obtain an up or down vote on an item of Senate business.

It would seem that one-third of the Senate plus one Senator could block any change in Senate rules, since a two-thirds vote of Senators present and voting is required to enforce cloture on a Senate Rules change. But the change from a two-thirds cloture requirement to a three-fifths cloture requirement on most items of Senate business was initially supported on a straight up or down vote of the Senate. Here’s how it happened.

On February 24, 1975, Senator Walter Mondale of Minnesota moved that the Senate take an immediate vote on his cloture procedure with no intervening debate, motions, or amendments, and upon adoption of his cloture procedure, the Senate take an immediate vote on whether to proceed to consideration of the underlying proposal for three-fifths cloture reform. Senator Mike Mansfield of Montana raised a point of order. Mondale moved to table Mansfield’s point of order and Mansfield’s point of order was tabled on a 48 to 40 vote.

Eventually a compromise was reached and on March 7, 1975 the Senate voted to change the Senate rules by a 56 to 27 vote. Since 56/27 is greater than or equal to 2, 56 to 27 meets the two-thirds requirement and some have argued that a simple majority can not change Senate rules, that only a two-thirds vote of the Senate can. But the record shows that it was the 48 to 40 vote that forced the minority to compromise, knowing that they would lose the battle and wanting to preserve the appearance of a two-thirds requirement for Senate rule changes.

But there have also been times when the Senate has changed its procedures without formally changing its rules. In March 1980, Senate Majority Leader Robert Byrd of West Virginia moved that the Senate go into executive session to begin consideration of Robert E. White as Ambassador to El Salvador. This contradicted existing Senate rules and Senator Jesse Helms of North Carolina raised a point of order against Senator Byrd’s motion:

The Senator can move to go into executive session but he cannot under the rules specify what we shall consider. The Senate determines its order of business in executive session only after going into executive session. It is not in order to determine the order of executive business while in legislative session.

The Presiding Officer of the Senate sustained Senator Helms’ point of order, but Senate Majority Leader Byrd appealed the ruling of the Presideing Officer, which forced an immediate up or down vote by the full Senate. The Senate voted to reject the Presiding Officer’s ruling on Senator Helms’ point of order by a 54 to 38 vote, mostly on party lines where Democrat Senators voted with Majority Leader Byrd and Republican Senators voted with Senator Helms. As a result of the precedent set by that 54 to 38 vote, motions to proceed to consider a specific nomination in executive session are not debatable and therefore can not be filibustered, even though the Senate Rules state otherwise.

This proves that if a majority of US Senators want to change the way the Senate operates, the majority can do so. The majority can ignore the two-thirds requirement to end debate on rules changes as the 1975 Senate did, led by Senator Mondale and the majority can ignore the three-fifths requirement to end debate on Senate business that is normally debatable (and therefore filibuster-able) as the 1980 Senate did, led by Senate Majority Leader Robert Byrd.

The filibuster, therefore, is only available to the Senate minority as long as the Senate majority allows it to be available to the minority. The filibuster isn’t a hard coded check and balance in the way that the Presidential veto power is, in the way that the division of Congress into two separate legislative chambers is, the way that the independent judiciary is. Thus, a simple majority of Congress can not waive Senate and House rules in order to override a Presidential veto nor can Congress pass legislation by making up for a 10 vote defeat of that legislation in the US Senate by winning a 11 vote victory of that legislation in the US House of Representatives. Strong supporters of the filibuster should support making the filibuster a hard coded check and balance against mob rule by proposing an amendment to the US Constitution. This would preclude a Senate majority doing an end run around existing Senate rules.

Cheney, correctly, opposed the Democrats’ judicial filibustering in 2005

When the Republicans took over the US Senate as a result of the 2002 elections, conservatives were hoping that Bush’s judicial nominees, previously prevented from receiving an up or down vote by Senate Majority Leader Tom Daschle of South Dakota, would finally get a chance to be voted on and confirmed. Conservatives saw the 2003 Senate, with its 51 to 49 Republican majority, as a way to put some balance back onto the federal court of appeals. Miguel Estrada was nominated by President to be the first Hispanic on the Washington DC court of appeals. The Republicans surest way to obtain cloture on the Estrada nomination was to have all 51 Republican Senators and a minimum of 9 Democrat Senators vote for cloture. Since most Democrats refused to vote for cloture, the Estrada nomination never came to a vote. Miguel Estrada withdrew his nomination. The Democrat minority of 49 had defeated the Republican majority of 51.

In 2004 the Republicans achieved a net gain of 4 US Senate seats, reaching a 55 to 45 seat majority. The Republicans didn’t have a filibuster proof, 60 seat majority. But anticipating a continuation of the Democrats’ judicial filibustering from the previous Senate, Republican Senate leaders began openly talking about using the Constitutional Option to bypass judicial filibusters. Vice President Dick Cheney announced that he would use his power as Presiding Officer of the US Senate to assist the Senate majority in providing Bush’s judicial nominees an up or down vote, overriding Senate Rule 22.

Cheney Jumps Into Filibuster Fray

Vice President Dick Cheney warned Democrats Friday that he will cast the tie-breaking vote to ban filibusters of President Bush’s judicial nominees if the Senate deadlocks on the question.

Republicans are moving the Senate toward a final confrontation with Democrats over judicial nominations. Internal GOP polling shows that most Americans don’t support Senate Majority Leader Bill Frist’s plan to ban judicial filibusters — a tactic in which opponents can prevent a vote on a nomination with just 41 votes in the 100-member Senate.

“There is no justification for allowing the blocking of nominees who are well qualified and broadly supported,” Cheney told the Republican National Lawyers Association. “The tactics of the last few years, I believe, are inexcusable.”

“Let me emphasize, the decision about how to proceed will be made by the Republican leadership in the Senate,” Cheney said. “But if the Senate majority decides to move forward and if the issue is presented to me in my elected office as president of the Senate and presiding officer, I will support bringing those nominations to the floor for an up or down vote.”

Sen. Charles Schumer, D-N.Y., said the White House “has stepped over the line by interfering with the Senate to reduce checks and balances.”

“The White House has always wanted to reduce the Senate’s power and the fact that Vice President Cheney is encouraging this abuse of power should strengthen the Senate’s resolve to resist,” Schumer said.

In my opinion, the Republican Senate leadership of 2003-2006 was correct in supporting a change in Senate procedure so that 41 US Senators could not defeat a judicial nominee by refusing to support cloture and, thus, denying an up or down vote on that nominee. I also believe that dissenting Republicans, such as Senator John McCain of Arizona, who said that the judicial filibuster should be retained so that conservatives could someday filibuster a liberal nominee was misleading. John McCain, for example, did not filibuster any of President Clinton’s judicial nominees, not even the most radical, activist nominees. In fact, McCain voted to confirm Ruth Bader Ginsberg and Stephen Breyer to the US Supreme Court, even though most Democrats had, only a few years earlier, refused to vote to confirm Robert Bork and Clarence Thomas to the High Court. Bork was defeated 58 to 42 in 1987. Clarence Thomas was confirmed 52 to 48 in 1991.

Republicans should use the Senate Rules to there advantage, until they change them to their advantage

Republicans need to avoid being in a “heads the Democrats win; tails the Republicans lose” situation with respect to the filibuster. Sometimes Senators will argue that, although they do not support the specific item of Senate business (a nomination or a piece of legislation), they will vote for cloture so that the item of Senate business can be voted on. Clearly, this is not how the Democrats’ behaved with respect to the nomination of Miguel Estrada and a host of other Bush nominees to the federal court of appeals. Therefore, I would encourage the Republicans to use the filibuster frequently and relentlessly while they are in the minority. But I would also encourage them to bypass, ignore or change these rules/procedures once they regain the majority.

For example, if the Republicans were to end up with a 56 to 44 seat majority in the US Senate by 2013 and were to win the Presidency, Republicans would have the opportunity to fill several seats on the federal court of appeals and perhaps the US Supreme Court. It is likely that under those circumstances, the Democrat Senate minority would filibuster conservative judicial nominees as they did from 2003 through 2004. If that were to happen, Republicans should use the tactics used by Senator Mondale in 1975 and Senate Majority Leader in 1980 to either change Senate procedure or change Senate rules in order to get conservatives confirmed to the federal courts.

Some say that majority rule is mob rule and that the minority must be able to prevent the majority from abusing power. But there is only one thing worse that rule by the majority and that is rule by the minority. Also, there are sufficient checks and balances in the US Constitution that exist even in the absence of a 60 vote cloture requirement. Congress has two legislative chambers. The President has a veto power. The judicial branch is an independent branch of government. All of these features, built directly into the US Constitution, represent checks and balances. If conservatives believe that the 60 vote cloture requirement is an important check and balance against majority rule, they should (a) consider proposing such as a Constitutional Amendment and (b) should consider how difficult it might be to reform Social Security, Medicare and Medicaid if 60 Senate votes are required, in addition to a majority of the US House and a Presidential signature. Social Security, Medicare and Medicaid will turn the United States into a socialist country unless these programs are reformed. Do we really want 41 Senate Democrats to be able to block that reform? Do we really want 41 Senate Democrats to be able to defeat conservative judicial nominees?

My answer is no.