We are experiencing the consequences of a bloodless coup. Forty one persons (41) are currently thwarting the demands of 69 million voters. The veto power of these 41 persons over our constitutional law making process is maintained and defended by 50 Democratic Senators and by Democratic Vice President Joseph Biden. Our new overwhelmingly elected Democratic President Barack Obama neither mentions nor challenges this maintenance of the bloodless coup. The secret stalwart defense of this coup is the dirty little secret of the national Democratic Party.
Do you want “change” from the status quo, as I do? Do you want regulation of Wall Street? Reform of the private banking system? The Employee Free Choice Act? Election reform? Single Payer Health Coverage? The public financing of election campaigns? Making contributions of large sums of campaign money a felony? Prosecution of torturers all the way to the top? Save the environment? If we want any one of these proposals, we must mobilize with many other voters to defeat the Senate Filibuster.
The Filibuster is a Senate practice, embodied in the Senate’s “Robert’s Rules of Procedure,” as Senate Rule XXI that effectively thwarts our self governing democracy of, by and for the people. It enables a very small number of Senators to defend the status quo, to prevent change, and to prevent enactment of bills or appointment of judges and officials that are demanded by a majority of us voters, a majority of the Members of the House of Representatives, a majority of the Senators, and by a popular President elected by a majority of voters. Filibustering originally meant unlimited talking or debate to delay or preclude a vote on the merits. Under modern usage, no Senator speaks endlessly. A single Senator privately and secretly informs his Party leader that he objects to the proposal. The Party leader honors his wish, and requires all members of the Party to vote against ending debate. Then no vote on the merits can be had until a supermajority of 60 Senators vote to permit a vote. From 1919 to 1970, the filibuster was actually used about 2 times per Congressional Session. During the Civil Rights Era after 1970 it was used much more often. Since the election of Bill Clinton in 1992, the filibuster has been used by the Republicans as a partisan weapon to thwart the majority. During Bill Clinton’s first two years, there were 20 attempts to close off “debate,” and the necessary 60 Senators could be mustered only 4 times. The pledge of the disciplined Republican Senators to stop President Clinton’s Stimulus Package was adhered to and the President’s Stimulus Proposal was defeated on 4 separate occasions as the Democrats tried to raise the necessary 60 votes. This does not even count the many Presidential proposals that were not even considered or brought up for a vote because of the threat of the filibuster.
The filibuster thus stands as a permanent and formidable weapon by Republicans, by Blue Dog Democrats, by powerful moneyed interests, by HMOs, by Wall Street, by war industries, and by ideologues to defend the status quo and to prevent both reform and “change.” It is now being used against Obama’s proposals, and it can and will be used against our demands. The mere existence of the filibuster and the threat of its use inhibit consideration of effective measures that really solve problems. In 1993 when someone pressed Hillary to consider Single Payer, she said: “Get real.” What she meant was that both the money of the insurance lobby and the filibuster made consideration of Single Payer impossible. It still is for the same reasons.
Our founding fathers were wealthy property and slave owners. They were very afraid of government by a “mob,” of rule by a temporary majority of voters. The Whiskey Rebellion had recently occurred. They created a Senate where Senators are elected for 6 year terms for the very purpose of slowing and impeding popular will. They created a law making process that even without the filibuster, contained 3 difficult hurdles: In order to pass a new law, a majority of voters must elect a majority of Members of the House, and elect a majority of Senators. Voters must in addition elect a President who will not exercise his veto over our majority will. These are obviously very difficult hurdles. We the sovereign people have to organize and maintain a disciplined sustained effort for at least 6 years in order to implement our will under the constitutional pattern.
The Founding Fathers clearly intended to require only the votes of a simple majority of Senators as in order to make a law:
1. The Founding Fathers expressly provided regarding both the House and the Senate that “a majority of each shall constitute a quorum to do business.” In the case of the Senate, that means that 51 Senators can show up to enact a law. It may mean that a simple majority of that 51 Senators or an affirmative vote of 26 Senators shall be sufficient. At most it means that only the unanimous vote of the full quorum or 51 Senators is required. In the case of a 50-50 tie 50 votes plus the vote of the Vice President is sufficient. It does not mean that the affirmative vote of 60 Senators is required.
2. The constitution provides for 6 other special instances where a 2/3 vote is required.
a. To override a Presidential veto
b. To ratify a treaty
c. To expel a member
d. To impeach
e. To propose amendments to the Constitution
f. To adjourn the Congress over the objection of the President
3. Thomas Jefferson presided over the first Senate and wrote the first procedural rules for both the House and the Senate. ((Page 395, Jefferson’s Parliamentary Writings, edited by Wilbur Samuel Howell, Princeton University Press (1988))) These rules provided that debate could be ended so that a vote could be had on a Bill by a non-debatable motion for the previous question which could be passed by vote of a simple majority of the quorum. The House has continued with this procedure to this day. The Senate operated with this procedure from 1789 to 1806, when this constitutional rule was abolished. ((From 1806 to 1917, one filibustering Senator could and did thwart majority action. There was no way for the Senate to get to a vote on the merits. Under the looming emergency of WWI in 1917 a “reform” was adopted by the Senators so as to permit 2/3 of the Senators to cut off debate. In 1975 under the pressure of the civil rights movement, the Senators agreed to a further “reform” so as to enact the 3/5 rule that exists today.)) The bloodless coup started then.
4. Consider the effect on our law making power if the House of Representatives also adopted the filibuster. This would obviously be unconstitutional if the House did it because few if any laws could be enacted. The House and Senate are governed by the same provisions in the Constitution. So it is unconstitutional for the Senate as well.
5. The Supreme Court in U.S. vs. Ballin ((U.S. v Ballin 144 U.S. 1)) in 1892 impatiently confirmed what the common understanding had been for hundreds of years:
“…the act of a majority of a quorum is the act of the body. This has been the rule for all time…”
So, the Senate filibuster is unconstitutional.
Although the Senate has a constitutional right to make its own rules of procedure, those procedures must implement, not obstruct the will of the voters. The great Chief Justice John Marshall ruled early on in 1819 in McCulloch vs. Maryland, ((McCulloch v. Maryland 4 Wheat 316)) (a case upholding a congressionally created US National Bank) that our constitution provided for a government of the people, by the people, and for the people. President Lincoln embedded this concept in our minds by his Gettysburg Address. “We the People of the United States” are the sovereign 4th branch of government. We are the bosses. The Senators, the President and all elected officials are our agents. The constitution compels them to implement our will, not theirs. The filibuster empowers 41 Senators permanently to veto the constitutionally manifested majority voting power of 69 million voters. The filibuster is in fact a right wing bloodless coup by Senators, as effective as a bloody machine gun coup by a military dictator.
The filibuster has its roots in slavery. As a majority of voters began to object to slavery, Slave Owners in the South needed every parliamentary trick they could devise to protect their right to own and to profit from slavery. They got extra Members of the House of Representatives because each of the millions of the non-voting slaves was counted as 3/5 of a person for purposes of apportioning representatives in the House. Thus Southerners had the votes to capture leadership roles in the Congress. In the Senate, the Southern slave owners needed a device to prevent votes against their interests. The filibuster was perfect for this. A Southern Senator had only to keep talking to prevent action on the merits that would free the slaves. Even after the Civil War and the abolition of slavery, Southerners used the filibuster to prevent Congressional action to implement Black voting rights, to prevent enactment of a law against lynching and to prevent laws abolishing the poll tax.
Although Senate Rule XXII and the filibuster are unconstitutional, the Supreme Court, composed of Justices who are now inclined to oppose the concept that voters are sovereign, denies “standing” to a sovereign citizen, any group of sovereign citizens, to a Member of Congress, and to a Senator to challenge the filibuster in court. Nobody has standing. One might think that a sovereign citizen would be able to exercise his First Amendment right to “petition the government for a redress of grievances” by bringing a suit in court, but the Court has ruled that “right” means only the right to file the claim with the clerk and not the right to be actually heard or to get actual redress. The court has changed since 1819 when it affirmed the concept of the sovereignty of the people. Contrast the current rulings denying sovereignty with the court’s rulings giving a corporation the legal rights of an actual person, and giving that corporation the First Amendment Right of free speech to use its wealth to broadcast widely to overwhelm individual speakers. The Senate’s use of the filibuster has created a Supreme Court that supports the bloodless coup.
All of this leaves us with the only remedy available, and it is not easy. A simple majority of a quorum of Senators, plus the cooperative vote and ruling of Vice President Biden, can change the rule any time the Senators wish. This Senate precedent and procedure was established in 1975 by then Senator Mondale. Supposing the Democratic Senators really wished to enact banking reform or Single Payer: Somebody moves to cut off debate and bring the matter to a vote on the merits. The Vice President puts the matter to a vote. Somebody, probably a Republican or a Blue Dog Democrat or Senator Lieberman raises a point of order: “Point of Order Mr. Vice President. Senate Rule XXII requires 60 votes to close debate.” The VP rules that Senate Rule is unconstitutional and that the constitution compels a vote by a simple majority. Somebody then will challenge the ruling of the chair. This vote is not debatable and the ruling of the chair can be sustained by simple majority vote. . This is the basis of the threat by Republicans when they were recently in the majority to use the “nuclear option.”
The secret is that the Senators do not wish to change the rule. Not a single Democratic Senator and not a single Republican Senator wishes to change the rule.
In 1973, full of sovereign citizen outrage when the filibuster was being used against President Clinton’s Stimulus Package, I filed suit in the D.C. Federal Court ((Page v. Dole et al United States District Court for the District of Columbia, No. 93-1546; Page v. Richard Shelby et al Unites States District Court for the District of Columbia, No. 97-0068)) against all 100 Senators raising the challenge that the supermajority requirement of Senate Rule XXII was unconstitutional. I claimed that I had a constitutional right to a fractional share of majority voting power, and to have that right implemented by a simple majority of my elected Senators and Representatives. I naively hoped and expected that President Clinton and some Democratic Senators like Senator Wellstone and Senator Leahy would seize the opportunity and join the suit on my side. I notified President Clinton of the opportunity. He never replied. He never joined the suit. Every single one of the 100 Senators authorized and directed the Senate Legal Counsel to oppose my suit because I lacked “standing.” So I had neither verbal support nor legal support from any Democratic elected official.
There are several reasons why the Senators unanimously support this unconstitutional rule:
o It gives each Senator a way to conceal his votes for the wealthy Wall Street Banks and to continue to receive campaign contributions, while he claims to represent the “little guy.” For example, both President Clinton and President Obama and the Democratic Senators can say the filibuster make it impossible for the overwhelming voting majority of us to get the Single Payer Health coverage we voters need and want. Meanwhile the Senators can continue to take campaign funding from HMOs and other interests who profit from the status quo.
o It gives each Senator vast power to stall and possibly to defeat a majority proposal that is opposed by some moneyed interest that finances the Senators re-election campaign.
o It preserves the alleged collegial and cooperative relationship among Senators so that they can “scratch each other’s back” and trade votes on different Bills important to each Senator.
o It preserves the hallowed “tradition of the Senate” as a wiser, calmer legislative body, “the most powerful legislative body in the world,” as Senator Robert Byrd proudly claims. ((1 Robert C. Byrd, The Senate 1789-1989))
o It has now existed for 203 years.
These are not ordinary times. This is a time of extraordinary emergency. We voters are facing “a depression greater than the Great Depression, loss of jobs, homelessness, illness, and hunger, along with Global Warming, and the end of cheap Oil.
We face a covert class war by the Wall Street Banks who desperately seek to preserve their sources of vast wealth by making us taxpayers and our taxpaying offspring pay their bills.
We have a cancerous private banking system that is siphoning off our wealth for the benefit of the wealthiest 1%.
We desperately need to assert our sovereignty as majority voters, and to regain majority control of our law making process.
The only way we can possibly do this is to mobilize and lead millions of our fellow and sister voters and beat our pots and pans in front of every office of the Senators, Congress persons, and the White House demonstrating that we are aware of the Senators’ dirty little secret and demanding that they abolish the filibuster. The angry and outraged voters are ready to act. It is important that demonstration leaders, spokespersons to the media, sign makers, and those who speak directly to the elected official, be prepared to make a focused demand that the Senators abolish the filibuster.