The filibuster is unconstitutional. Pass it on.

Action #1: Call VP Kamala Harris and ask her to rule the filibuster unconstitutional.

Minimal Script: I’m [calling/writing] to ask VP Harris, as presiding officer of the Senate, to rule that the filibuster is unconstitutional. Its 60-vote supermajority requirement for the enactment of general legislation is in violation of Article V, the 17th Amendment and the constitutional presumption of majority rule as prescribed in the Constitution.

  • Email : http://www.whitehouse.gov/contact/
  • Comments: 202-456-1111
  • Switch Board: 202-456-1414
  • TTY/TTD:  202-456-6213
  • Letters/postcards: The White House, Office of the Vice President,1600 Pennsylvania Avenue, N.W., Washington, DC 20500

Action #2: Tell your senators that we expect them to make changes now.

Minimal Script: I’m calling from [zip code] to let Sen. [___] know that I’ve just finished (calling/writing) Vice President Harris to ask her to rule the filibuster unconstitutional. The American public is done with the Senate’s dysfunctional legislative graveyard. This procedure must either be abolished, or substantially reformed, as it’s anti-democratic for a minority to be able to permanently block bi-partisan House legislation, especially bills related to basic democracy, like voting access and equal rights. I’m asking [him/her] to immediately engage in collaboration to reform the Senate from the legislative bottleneck it is now to a functioning body, which may include time limits, the “talking filibuster”, and majority-vote carve-outs for bills that reform and protect democracy.

Contacts

  • Senator Feinstein: email, DC (202) 224-3841, LA (310) 914-7300, SF (415) 393-0707, SD (619) 231-9712, Fresno (559) 485-7430
  • and Senator Padilla: email, DC (202) 224-3553, LA (310) 231-4494, SAC (916) 448-2787,Fresno (559) 497-5109, SF (415) 981-9369, SD (619) 239-3884
  • Who is my representative/senator?: https://whoismyrepresentative.com

Deeper Dive

(LA Times/Yahoo) The Senate has never been fair, as sparsely populated states like Wyoming (pop. 580,000) get the exact same number of senators as states like California (40 million). Sen. Mitch McConnell hoots over using his “Kentucky Veto” to prevent “radical schemes like the Green New Deal and socialized health care” from passing, claiming that they would devastate his state. (Kentucky – 4.5 million)

The 60+ rule for a filibuster has radically increased this basic unfairness, until now two law professors, Erwin Chemerinsky, and Burt Neuborne believe that its continued use is unconstitutional. Under the 60-vote rule, 41 senators representing about a third of the population can outweigh 59 senators representing two-thirds. This violates the principle of equal representation in voting — for example, the “one person, one vote” rule that the Supreme Court long ago applied to state legislative and congressional districts.

Although many Americans believe the filibuster is part of the Constitution, it didn’t become a rule or practice of the Senate until 129 years after the Constitution was ratified and was used most often during the Jim Crow era. “Starting in the late 1950s, senators began to use the filibuster to thwart passage of civil rights legislation intended to address the deeply entrenched racism that affected so many areas of American life. Anti-civil rights Dixiecrats obstructed bills against lynching, poll taxes, and discrimination in employment, housing, and voting.

Changing the filibuster on constitutional grounds isn’t new. “In 1957, Vice President Richard Nixon, sitting as presiding officer of the Senate, issued two advisory opinions holding that a crucial provision of the Senate’s filibuster rule — requiring two-thirds vote to amend it — was unconstitutional. Nixon’s constitutional determination was reaffirmed by subsequent vice presidents Hubert Humphrey and Nelson Rockefeller. In fact, it was this ruling that allowed both the Democratic-controlled Senate in 2013 and the Republican-controlled Senate in 2017 by a simple majority vote to eliminate filibusters for all executive and judicial nominees.

Chemerinsky and Neuborne’s argument hinges on three points:

Article V: Harris possesses the same power as Nixon to rule that the current version of the Senate filibuster, which essentially establishes a 60-vote supermajority rule to enact legislation in the Senate, is unconstitutional because it denies states “equal Suffrage in the Senate” in violation of Article V of the Constitution.

Article 1: Article I of the Constitution sets forth supermajority votes in the Senate only in narrowly defined cases like ratifying treaties, overturning presidential vetoes and convicting impeached officials. The strong implication is that, unless the action falls into these narrow exceptions, the Senate should operate by majority rule. Article I says nothing about a general supermajority requirement for the enactment of all legislation in the Senate.

17th Amendment: The 17th Amendment revolutionized the Senate by shifting the election of senators from state legislators to the voters, but it preserved the founders’ decision to give each state two senators with equal voting rights. But a 60-vote supermajority rule destroys the mathematical equality of each senator’s vote.

Chemerinsky and Neuborne believe that best way forward is for Harris to rule that the current version of the Senate filibuster operates as an unconstitutional 60-vote supermajority requirement for the enactment of general legislation —in violation of Article V, the 17th Amendment and the constitutional presumption of majority rule, and should be abolished to return the Senate to majority rule as prescribed in the Constitution.

Today, our country has urgent needs. Chief among these goals must be repair of our democratic systems. Millions of Americans support major reforms to ensure our democracy continues to function — overhauling our elections, creating stricter ethics rules for elected and appointed officials, limiting the poisonous influence of money in politics, and ensuring that voters choose their elected officials rather than the reverse. These reforms, which will make our institutions responsive to the popular will, are all embodied in the For the People Act. The House passed it this month, but without reforming the filibuster, it will not become the law of the land and our democracy will continue to founder.

The Senate could try to overrule her by majority vote. “In that case, the senators would no longer be debating the filibuster as mere political policy, but about a profound constitutional question.”

Or they could get busy figuring out ways to hear minority voices without consigning the Senate, year after year, to McConnell’s graveyard of legislation. The Brennan Center for Justice has filibuster reform suggestions:

  • Allowing the minority party ways to meaningfully participate, including the right to offer germane amendments
  • Making it difficult for obstructionists to delay action preferred by the majority, such as placing the burden upon filibustering senators to sustain a filibuster and instead forcing filibustering senators to stay on the Senate floor and actually debate.
  • Bringing every measure or nomination to a yes-or-no vote in a timely manner once all senators have had a reasonable opportunity to express their views
  • Forcing senators to use a “talking filibuster” to increase transparency of their views to the public.

Additional resources

More call scripts here.

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