How to Get Gun Control, Bury the Filibuster and Usher in Progressive Legislation
A Legal Roadmap for Reforming the Sclerotic, Dysfunctional United States Senate
By
David Gottfried
Since last Tuesday’s Texas school shooting, I have heard more than one pompous personage on the news refer to President Biden, without any sarcasm or irony, as the nation’s “consoler in chief.”
I don’t know about you, but I don’t vote for Presidents because I think they will be great consolers. My Grandmother was a great consoler, but she never went to college, was not schooled in the law, and although her expertise in deconstructing chickens and turkeys was second to none, I don’t think she was up to snuff at deconstructing American government.
As I am writing this, there has been a lot of talk about a possible compromise which, allegedly, might yield some gun control. However, I have seen the way phony liberal Democrats bargain. I don’t vote for Presidents who bargain like inveterate losers who periodically let Republicans eat them for lunch. I want a real man, or a bull dyke of a bitch, who can kick the gun lobby in the ass, give them a knock-out punch and deliver the fatal blow to the NRA that can reduce the tens of thousands of fatalities that stain our schools, supermarkets and streetscapes.
There is a way to get gun control and to enact a panoply of progressive legislation. To do that, we must, once and for all, consign the filibuster to the dung heap of history, along with its ideological bedfellows, such as the Supreme Court’s infamous Dred Scott decision and the legacy of slavery.
As most of my readers probably know, the filibuster is that ugly, irksome wrinkle in the United States Senate that defeats the principle of majority rule. Because there are 100 Senators, one would think that if 51 Senators favored a gun control bill, or anything else, the bill would pass. But the filibuster rule says tough luck, shorty. We’ll still screw you: Before one can vote for a piece of legislation, the Senate has to agree to vote for a piece of legislation, and to agree to vote for a piece of legislation, 60 Senators must agree to proceed to a vote. The filibuster rule, like all reactionary rules and precepts, stems from the same malignant idea: The privileged and arrogant few shall spit in the eyes of the well-meaning and civic-minded majority.
In this essay, I have mapped out a tentative legal strategy (A ton of additional legal research is required) for bringing a law suit which will bar the United States Senate from adhering to supermajority rules and provisions (A supermajority provision is a rule which holds that a bill or option is not enacted unless more than a majority of legislators vote for it) except when the United States Constitution demands that a supermajority is required for passage, e.g., the Constitution says that a treaty is not approved unless two-thirds of the Senate votes for the treaty.
I can imagine what you are thinking: I haven’t heard of any legal strategy which will bury the filibuster rule. Ergo, I am sure that David Gottfried, who is mere scribbler on substack, does not possess any insights which may enable us to overcome the filibuster. My rebuttal: If you think there are no legal arguments which can defeat the filibuster, it’s because our political discourse is utterly braindead and leads you believe that nothing is possible. As I explained in a recent article, most Americans think the second amendment gives them an unqualified right to possess any and all arms under heaven (or should we say hell), but that’s only because the allegedly liberal (but in reality conservative) news media never reads to you the actual words in the second amendment, which arguably provide that you have a right to bear arms only insofar as you are a member of a military organization designed to defend the country. (Footnote 1) On a related note, as my following review of the relevant cases reveals, Democratic legislators who have brought suit to challenge the filibuster failed but only because their suits suffered from design defects that had been pointed out in previous suits. But that’s to be expected: Centrist “liberals” always fight with one hand tied behind their back.
A Review of Recent Cases Regarding the Legitimacy of the filibuster, and of Supermajority Provisions in General, and How they May be Challenged
To dump supermajority provisions, we must A) show that they violate the law and B) pick a proper Plaintiff to bring the suit as only certain Plaintiffs will having “standing” to sue.
“Standing” to sue means having the right to sue. Essentially, to have standing to sue, the Plaintiff must say and show that he, the Plaintiff, is being hurt by something and that he has not brought suit simply to articulate and vindicate his political convictions. If one had brought suit to exhibit one’s political commitments, one would be using the Courts to win what one cannot win in the Court of public opinion and at election time.
First, I will show why the Senate filibuster is unconstitutional. Second, I will explain why certain suits, which sought to bury the filibuster, were dismissed for lack of standing to sue, i.e., why certain suits have been dismissed because the Plaintiff in the case had no right to challenge the filibuster. Finally, I will explain how we can find a Plaintiff who will have standing to sue, and I will suggest what sorts of Plaintiffs will be ideal in challenging the filibuster.
1) Why super majority rules, other than those enumerated in the Constitution, are Unconstitutional.
In Skaggs v. Carle, 110 F3d 831 (D.C. Cir 1997), members of the House of Representatives challenged a rule, in the House, which provided that a tax increase could not pass the House unless three-fifths of the House voted for the tax increase. This was, essentially, a supermajority provision similar to the Senate’s cloture rule which mandates that the Senate cannot vote for a bill until three-fifths of the senate agree to proceed to a vote.
The Court found that the Congressmen, and other Plaintiffs in the suit, did not have standing to sue. Because they did not have standing to sue (discussed in a moment), the Court dismissed the suit.
However, the dissenting judge found that they did have standing to sue. What’s more, the dissent found that supermajority provisions are unconstitutional. This is the reason why:
“I … find that House Rule ,,, cannot withstand constitutional scrutiny.
The presentment clause of the Constitution requires that
“[e]very Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States.”
U.S. const. art. I, § 7, cl. 2 (emphasis added). To determine the meaning of “passed” under the presentment clause, I look to the intent of the Framers of the Constitution, as well as Supreme Court precedent construing the clause. This evidence-along with longstanding traditions underlying our constitutional democracy-makes it clear that “passed” means “passed by a majority,” except in those few instances where the Constitution explicitly states otherwise. The rulemaking clause of the Constitution, which merely provides that each House has the power to “determine the Rules of its Proceedings,” U.S. const. art. I, § 5, cl. 2, surely is not an explicit exception to the presentment clause. Thus, in using the rulemaking clause to redefine what it means for a bill to be passed, Rule XXI(5)(c) rewrites the imperative of the presentment clause and, therefore, must be struck down.
Skaggs v. Carle, 110 F3d 831 (D.C. Cir 1997), Judge Edwards in Dissent.
Of course, this was a dissenting opinion. However, in Page v. Shelby, 995 F.Supp. 23 (D. D.C. 1998), the Court, in once again finding that a party did not have standing to sue, did note that a supermajority provision is, arguably, unconstitutional:
“The Skaggs opinion implies that a House or Senate rule requiring a super-majority for passage of legislation, if that rule were strictly enforced, might result in sufficient constitutional injury to support standing by some plaintiff.”
Page v. Shelby 995 F.Supp. 23 (D. D.C. 1998)
There are certain times when the Constitution does require a supermajority provision. To pass a treaty, to override the President’s veto, for the Senate to convict a President, to amend the constitution and in a few other instances one must carry the legislative chamber with a vote of two thirds. The constitution does not rule that legislation in general requires anything more than a bare majority.
Of course, diehard defenders of legislative paralysis will point to another clause in the constitution:
Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.
United States Constitution, Article 1, Section 5:
Our Republican foes will say that the aforementioned clause in the constitution, which gives each branch of Congress the right to pass its own rules, gives it the right to stifle change by enacting rules which codify the filibuster.
However, look at that clause again. After stating that “each House may determine the Rules of its Proceedings,” the clause states that each House may “punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.” Both punishing a member and expelling a member are phenomena referring to discipline. Other disciplinary matters require a vote of two thirds, such as convicting a sitting president. Drastic matters require supermajority provisions. For example, amending the constitution is drastic and that requires a two thirds vote. Accordingly, Article 1, Section 5, which gives each house of Congress the right to pass its own rules cannot be interpreted as meaning that each house can pass any rule it might like, and supermajority provisions are reserved for drastic measures.
The filibuster, and the concomitant cloture rule, are unconstitutional for another reason, one which might at first blush seem a tad laughable. I am referring to the rule, enunciated by the Supreme Court n Baker v. Carr, 369 U.S. 186 (1962). In the course of ruling that Tennessee’s allotment of legislative districts was unconstitutional, the Court said that each individual man was entitled to one vote, no more and no less. If an urban district in Nashville was home to 100,000 residents, and a rural district was home to 1000 residents, and if both districts had one representative in the state legislature, the voters in the rural district would, in effect, have 100 times as much voting power as the resident in Nashville. This would not do as it violated what the Court articulated as “the one man, one vote” precept of democratic life.
Similarly, the filibuster rule and the cloture rule degrade the votes of people in large states because each state, regardless of size, has two Senators. Consequently, California, which is at least 50 times as populous as Montana, has only two Senators, the same number of Senators as Montana, and this means that Montana voters are able to ride roughshod over the rights of people in California because Montana has 50 times as much voting strength, as California, in the United States Senate. (This is responsible for so many problems, such as the dizzying upsurge in rental prices in California and its burgeoning population of homeless folks. People in urban America are simply given no representation.)
Of course, the other side has a seemingly strong rebuttal: The antimajoritarian prejudice in the Senate, or the Senate’s built-in tendency to disparage and degrade the rights of most folks, was written into the Constitution as it provides that each state, regardless of size, will have just two senators.
However, I propose the following argument, which to my knowledge is completely novel: Because Baker v. Carr instructs us that each person shall have one vote, no more and no less, the antimajoritarian structure of the Senate cannot be amplified or magnified by Senate rules which seek to squelch and quash the will of the majority. In other words, we must accept that the Senate has been created to be antimajoritarian and we cannot change that (unlcss we modify the constitution). However, the antimajoritarian character of the Senate cannot be amplified by Senate rules, such as the filibuster, because of Baker v. Carr and its condemnation of giving some people more voting power than other people.
Also, we must be wary of antimajoritarian rules, such as the filibuster, because the Civil War modified America and the way we should interpret the Constitution.
Before the civil war, state governments reigned supreme. However, the civil war taught as that the right of a person not to be sold in a slave market was more important that the right of Lindsay Graham to strut on the national stage like a sneering, sadistic aristocrat from ancient Rome. When the Constitution was enacted, we gave each state two Senators because the Senate was meant to represent the governments of the individual states. However. The civil war taught us that the rights of bleeding people are more important than genuflecting before the royalty of the statehouses of the South and the West.
In addition, when the Seventeenth Amendment, which provided that Senators should be elected by the people and not chosen by the Governor or the state legislature, was enacted, the 18th Century deference to the lords of the State house was degraded some more.
Finally, the incorporation doctrine, which made the Bill of Rights binding on the States, dramatically weakened state power. (Footnote 2)
Accordingly, given the dramatic upsurge in power in Washington and the People, and the correspondent devaluation of state power, any Senate rule which will heighten the antimajoritarian facets of the United States Senate must be reviewed with the utmost scrutiny.
2) If we want to, we can find a Plaintiff who has standing to sue.
There have been a few cases in which the filibuster rule and the associated cloture rule have been challenged, but in all of those cases the suits were dismissed because the Courts adjudged that the Plaintiffs did not have standing to sue.
In some cases, the Plaintiffs claimed that the cloture rule diluted their votes as they were from a populous state, but the Plaintiffs could not refer to a particular statute that had not been enacted and how the failure to enact that statute had harmed Plaintiff. As such, the Plaintiff could not show real injury, and his suit was simply seen as one motivated by political activism, Patterson v. U.S. Senate, Case No.: C 13-2311 (N.D. Cal. 2014). For example, in Patterson, the Court tartly noted:
“Plaintiff has not identified any particular legislation he supports and how he was personally injured because the legislation did not become law as a result of the Cloture Rule. He does not allege that he would have been a direct beneficiary of a specific bill that passed the House, but did not pass the Senate because of a filibuster.”
In the aforementioned Skaggs v. Carle 110 F3d 831 (D.C. Cir `1997), standing was denied but the Plaintiffs could not show that they had been injured by a rule, barring the House from passing a tax increase unless three fifths of the House voted “yea,” because the House continually waived adherence to the rule. In Page v. Shelby the Court ruled that Plaintiff’s did not have standing to challenge the filibuster, but the Plaintiff only said that the filibuster hurt him because he was from a populace state and that the filibuster, consequently, diluted his vote.
3) Plaintiffs who will have standing to sue.
If we remember legal history, I am sure we can overthrow the filibuster – unless certain changes in the Law, which I am not cognizant of, have changed the rules which governed the following “standing to sue” cases from the Vietnam era. (As I said at the outset, my work here requires more legal research)
In both cases, Plaintiffs pleaded for an injunction ordering a halt to our prosecution of the Vietnam War on the grounds that the war was unconstitutional because the Constitution provides that only the Congress can declare war and the Congress had never declared war on Vietnam, or North Vietnam, or on any state in Indochina.
In the first suit, the named Plaintiff was a political activist. The Court swiftly dismissed this suit, noting that Plaintiff was involved in the war in the same way most Americans were involved; he viewed unpleasant images, on his television screen, when he viewed news programs. Plaintiff was not truly injured or affected.
In the second suit, Orlando v. Laird, 317 F Supp 1013 (E.D.N.Y.. 1970), the Plaintiff was a man who had been ordered to fight in Vietnam. His lawsuit was not a political lark. The Court ruled that he had standing to sue.
After denying the government’s motion to dismiss for lack of standing, the Court looked at the merits of the case and approved the constitutionality of the war. The court found that although Congress had never declared war, its passage of the Tonkin Gulf resolution, and its appropriation of funds to fight the war, were the functional equivalents of a declaration of war.
In any event, I can think of Plaintiffs who definitely have standing to bring suit:
A) Five children in Chicago who are terrified of leaving their home because they are terrified of getting shot. They have standing when the filibuster blocks gun control legislation.
B) Five people who live in slum properties who have been bitten by rats. They have standing when the filibuster blocks aid for housing for poor people.
C) The list is endless.
Footnotes:
Footnote 1: The second amendment states as follows: ““A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” This and related matters were discussed in my substack piece found here https://davidgottfried.substack.com/p/the-supreme-courts-lapse-in-logic?s=w
Footnote 2: The 14th amendment prohibits the States from denying people “due process of law.” Due Process of Law is given various definitions and is usually thought of as fundamental fairness.
The incorporation doctrine arguably goes further: It holds that the due process clause of the 14th amendment makes the Bill of Rights, which had only been restrictions on Federal power (e.g., it says that Congress shall make no law establishing a state religion; it does not say that Alabama cannot make Baptism the state religion of Alabama), also binding on the States. The incorporation doctrine got off the ground in the 1920’s when the US Supreme Court struck down a state law criminalizing the teaching of the German language. In that case, the Court held that such a law violated freedom of speech, per the first amendment, which it announced was now binding on the States per the 14th amendment. Over the next 40 years, the whole of the bill of rights, or almost the entirety of the bill of rights, became binding on the States via the incorporation doctrine.