Harry Reid invokes the ‘constitutional option’ to end the filibuster and to restore principles of constitutional democracy

Posted by AzBlueMeanie:

"The first principle of republicanism is that the lex majoris partis is the fundamental law of every society of individuals of equal rights; to consider the will of the society enounced by the majority of a single vote as sacred as if unanimous is the first of all lessons in importance, yet the last which is thoroughly learnt. This law once disregarded, no other remains but that of force, which ends necessarily in military despotism." –Thomas Jefferson to Alexander von Humboldt, 1817. 

The Founding Fathers thoroughly considered super-majority voting and rejected it in favor of a simple majority vote. So for all those so-called Constitutional conservatives who claim to believe in "originalism" out there, the Senate cloture rule, i.e. the filibuster, is not provided for in the Constitution.

The Founding Fathers identifed limited circumstances where a super-majority vote is required in the Constitution: conviction for impeachment in the Senate (Article 1, Section 3); expulsion of a member of a house of Congress (Article 1, Section 5); overriding a presidential veto (Article 1, Section 7); ratification of a treaty by the Senate (Article 2, Section 2); passing a constitutional amendment by Congress (Article 5); calling a constitutional convention by state legislatures (Article 5); ratifying a constitutional amendment by the states (Article 5).

Later amendments included restoring the ability of certain Confederate rebels to serve in the government (14th Amendment); approval of the removal of the president from his position after the vice president and cabinet approve removal and the president contests removal (25th Amendment).

The Senate cloture rule, i.e., the filibuster, was "inadvertently" created by the Senate in 1806. Political scientist Sarah Binder testified before the Senate in 2010 about the origin of the filibuster, with its Founding Father as the outgoing Vice President, Aaron Burr.

Binder said Burr told the Senate in 1805 that it should eliminate a rule that automatically cut off floor debate, called the previous question motion, because he thought it wasn’t needed.

“So when Aaron Burr said ‘get rid of the previous question motion,’ the Senate didn’t think twice. When they met in 1806, they dropped the motion from the Senate rule book,” she said.

The first Senate filibuster took place in 1837, so it took the Senate about 31 years to refine the procedure. But the name “filibuster” wasn’t used to describe the tactic until 1863 in the Senate.

The filibuster had been used sparingly over the years, until recent years when the anti-government insurrectionist Tea-Publican Party made the filibuster a "weapon of mass destruction" to destroy the federal government, requiring the 60 vote threshold for even the most routine and mundane business of the Senate. The Senate has been rendered entirely dysfunctional by paralysis from the insurrectionist Tea-Publican abuse of the Senate filibuster — directly undermining the principles of constitutional democracy.

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Today, Senate Majority Leader Harry Reid finally exercised the "constitutional option" to end the Senate filibuster abuse by the insurrectionist Tea-Publican tyranny of the minority and to restore democratic principles of governance. Steve Benen writes, Dems execute 'nuclear option' :

Overnight, Senate Majority Leader Harry Reid’s (D-Nev.) office made clear that today would be the day for the so-called “nuclear option” – a procedural tactic Senate Republicans came up with eight years ago, that allows members to change filibuster rules with simple majority vote. “We’re not bluffing,” one senior aide said.

And they weren’t.

Senate Democrats have voted to change one of the chamber’s most fundamental rules, a move which majority Democrats insisted was vital to clearing up a logjam of presidential nominees due to [unprecedented] Republican obstruction.

Fifty-two Democrats voted to invoke the so-called “nuclear option” – an unprecedented change previously threatened but not invoked until Thursday.

Three Democrats – Michigan’s Carl Levin, Arkansas’ Mark Pryor, and West Virginia’s Joe Manchin – voted with the Republican minority to allow filibusters to continue. They failed on the 52-48 vote. (If you look at the roll call later, a “nay” vote was for the nuclear option – it was a vote to overturn the ruling of the chair.)

And with this vote, effective immediately, the Senate will operate under a new precedent: judicial nominees and nominees for administration posts cannot be filibustered; confirmation votes will be majority rule. According to Democratic leaders, this preserves the option to filibuster Supreme Court nominees, though there’s some disagreement on this point.

Republicans are, of course, outraged that Democrats “changed the rules.” It’s therefore important to realize that by executing the “nuclear option,” Democrats didn’t change the practices of the Senate so much as they restored the institution to its normsfor more than 200 years, judicial and administration nominees were subjected to up-or-down votes. Now, they will be again.

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In other words, the resolution of this fight is hardly radical; indeed, it’s the exact opposite. The Senate, now more functional than it was yesterday, will now exercise its “advise and consent” role the way it used to – the way it was [intended] to.

It’s important to recognize the fact that this was a move Senate Democrats were reluctant to make, and avoided for years.

But Senate Republicans, eager to ignore election results they disagreed with, picked a dangerous fight, created a constitutional crisis, and left the majority party with no choice. As we’ve discussed over the course of the year, we’ve seen the first-ever filibuster of a cabinet nominee – a Defense Secretary nominee during a war, no less – and a filibuster of a CIA nominee. Republicans have filibustered judicial nominees they don’t like and judicial nominees they do like. GOP senators have, for the first time, used filibusters to stop the executive branch from enforcing the law.

But it was the decision from Senate Republicans to create a blockade on all D.C. Circuit nominees that ultimately forced Democrats’ hands. For the first time in American history, a Senate minority said it would block every nominee for a federal bench, regardless of the individual’s qualifications, because they disapprove of the nation’s choice to serve as president of the United States. It wasn’t until this week that nuclear-option skeptics in the Democratic caucus decided they’d seen enough.

Republicans are accusing Democrats of having done something extraordinary, but by any fair measure, Republicans did this to themselves.

This day has been a long time in coming. Anti-government insurrectionist Tea-Publicans seeking to destroy the federal government through a tyranny of the minority have no right to complain. Their attempt to destroy principles of constitutional democracy is un-American and cannot be allowed to stand.

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