Maximize U.S. Voting!

On November 6th the U.S. will have a very important national election.

This should remind us that a democratic republic like ours should have laws and procedures that simplify and maximize our citizens’ ability to vote. Unfortunately we do not meet this test. Here are my opinions on addressing this disparity.

Reforming the U.S. Voting System

First, the electorate should include every U.S. citizen.

That includes all citizens who have been convicted of felonies and who are still in prison and those who have served their sentences. They are human beings who have interests and opinions, and they have unique experiences of life inside our prisons, which are often neglected in the political debate about allocation of resources.

Now only two states (Maine and Vermont) impose no voting restrictions on felons or ex-felons. The other states impose various restrictions, with 11 states (six in the South) banning ex-felons from voting even after they have completed prison and probation or parole. As a result, an estimated 5.5 million people are disenfranchised on this basis, about one-fourth of whom are still in prison. Because 38.2% of these people are African-American, it is also a racial justice issue.

The electorate also should include all children. They too are human beings with interests that should be reflected in elections. This is especially true in an electorate in which older citizens tend to vote in higher percentages and naturally have an interest in programs and services that benefit them. I am a member of the older group and yet believe our political influence needs to be counterbalanced by the voices of the youngest. Creation of a voting system to allow all children to vote would require a lot of careful consideration of how this could be accomplished.  It presumably would have parents or guardians voting for their children through a certain age such as 16 or 18.[1]

Second, every citizen should be required to vote at least in national elections.

I know that this is true in many countries so it can be done. Such a system, I believe, would have the beneficial effect of causing political parties and candidates to appeal to voters in the middle of the political spectrum and thereby combat the polarization of our political system. Again, creation of such a system would require careful consideration of how that could be done.

Noted political commentators, Thomas E. Mann and Norman J. Ornstein, have made such a proposal. One means of enforcing such a law, they say, would be a modest fine, say $15, for failure to vote with increased amounts for repeated failures. Another way would be to provide a small tax credit for voting.[2]

Third, we should simplify our voting laws and procedures to make it easier to vote. Mann and Ornstein offer the following suggestions in this regard:

  1. Modernizing voter registration by allowing online registration and transfer of such records when the voter moves to a new home, by sharing data with private databases, by having national election-day registration.
  2. Having more easily accessible polling places, such as in or near shopping centers or arenas.
  3. Creating a uniform separate federal election ballot.
  4. Changing election day from Tuesday to a more convenient time, like noon-Saturday to noon-Sunday.
  5. Having a uniform national early voting period, such as Wednesday through Friday before election day.[3]

Fighting Efforts To Restrict Voting

Unfortunately too much effort is being spent these days to restrict voting. It includes restricting legitimate voter registration drives, purging voter rolls and limiting early voting. Even worse are reports in the New York Times and HuffingtonPost of voter registration drives that submitted false applications and destroyed legitimate ones.

In a recent New Yorker magazine Jane Mayer examines the well organized “True the Vote” effort that says it aims to fight and eliminate voter fraud. In my opinion, however, there are serious questions as to whether it really is an effort to suppress the votes of African-Americans, young people and others who tend to support Democratic Party candidates and causes.

One of the means by which “True the Vote” seeks to do this is promotion of state voter photo-ID laws which sound good on the surface, but often do not work that way. Even if such laws provide for free government-issued IDs, they sometimes do not provide without charge the documents (e.g., birth certificates) that are necessary to obtain such IDs. They also sometimes fail to provide reasonably accessible sites to obtain the ID’s or alternative ways to prove a voter’s identity.

This year in Minnesota, we will be voting on a proposed constitutional amendment to have a photo-ID requirement. The simple question on the ballot will be:

  • “Shall the Minnesota Constitution be amended to require all voters to present valid photo identification to vote and to require the state to provide free identification to eligible voters, effective July 1, 2013?”

The actual proposed constitutional amendment, however, is more complex. It is the underlined text in the following:

  • Article VII, Section 1. (a) Every person 18 years of age or more who has been a citizen of the
    United States for three months and who has resided in the precinct for 30 days next
    preceding an election shall be entitled to vote in that precinct. The place of voting by one
    otherwise qualified who has changed his residence within 30 days preceding the election
    shall be prescribed by law. The following persons shall not be entitled or permitted to
    vote at any election in this state: A person not meeting the above requirements; a person
    who has been convicted of treason or felony, unless restored to civil rights; a person under
    guardianship, or a person who is insane or not mentally competent.(b) All voters voting in person must present valid government-issued photographic 
    identification before receiving a ballot. The state must issue photographic identification
    at no charge to an eligible voter who does not have a form of identification meeting the
    requirements of this section. A voter unable to present government-issued photographic
    identification must be permitted to submit a provisional ballot. A provisional ballot must
    only be counted if the voter certifies the provisional ballot in the manner provided by law.

    (c) All voters, including those not voting in person, must be subject to substantially
    equivalent identity and eligibility verification prior to a ballot being cast or counted.

Such a system would create havoc on election day. Election judges, who are volunteers, would have to decide on the spot the validity of photo-Ids from 50 states and the District of Columbia, the U.S. military, 565 federally recognized Indian tribes and U.S. passports. This would require intensive training of such judges in the laws of all those entities. For example, Minnesota law states that a valid Minnesota driver’s license is one that is “not expired, suspended, revoked or cancelled” and that has been issued within 30 days of the driver’s having moved to a new address. Each of the other states and entities may have different criteria for such validity.

In addition, Minnesota election judges also receive the absentee ballots and thus would be faced with the responsibility of determining validity of other ID’s and whether they were “substantially equivalent to” those required of voters voting in person.

The Minnesota Secretary of State and the local election officials in the state say that compliance with such an amendment would be very expensive in terms of training election judges and administering the system. In addition, I believe there probably would be many people who would not volunteer for these positions with the increased complexity of the job.

The major newspaper in the state, the StarTribune, has opposed this proposed constitutional amendment.

I will vote “NO” on this proposed amendment and urge my fellow Minnesotans to do the same!

Improving the Accountability of the Federal Government

There also are ways to improve the accountability of the federal government to the electorate. Here are some of those ways.

We should amend the U.S. Constitution to eliminate the electoral college for presidential elections and instead have direct, popular voting to choose our national leader.

We also should amend the Constitution to change the term of office for members of the U.S. House of Representatives from two years to four years and have their elections coincide with the presidential elections. Perhaps too the term of office of U.S. Senators should be changed from six to eight years, again with their elections coinciding with the presidential elections. This would eliminate midterm elections that often result in divided government, thereby making it more difficult to do anything at the national level.[4]

Another constitutional amendments would adopt weighted voting by U.S. Senators so that each Senator from the least populous state (Wyoming) has one vote while each Senator from the most populous state (California) has a vote that counts as 66 votes.

Eliminate the U.S. Senate’s filibuster rule by the Senate itself doing so or by a federal court’s determining that the rule is unconstitutional. [5]

Reform the system for creating new congressional districts after the decennial census by delegating the task to an independent commission that operates under explicit standards for fairness and political competition.[6]

Change political party primary elections to open primaries.[7]

Adopt proportional representation in multi-member districts.[8]

Conclusion

I recently have been volunteering for the Obama campaign and am astounded to see first-hand the immense logistical, managerial and financial requirements for a presidential candidate’s identifying his or her likely voters and urging them to vote early or go to the polls to vote on election day in a country with a population of nearly 312 million spread out over nearly 4 million square miles.  This is even more difficult for candidates like Obama who count on the support of younger voters, who move more frequently and change from being students to working out in the larger world.

To my fellow U.S. citizens, please vote in this election!


[1] I made such a suggestion in 1996, and the idea also was recently endorsed by an op-ed article in the Washington Post.

[2] Thomas E. Mann & Norman J. Ornstein, It’s Even Worse Than It Looks: How the American Constitutional System Collides with the New Politics of Extremism at 140-43 (Basic Books; New York 2012).

[3]  Id. at 133-40.

[4]  Id. at 164.

[5]  Id. at 166-72.

[6]  Id. at 143-47.

[7]  Id. at 147-49.

[8]  Id. at 149-52.

Jurisdictional Issues for Lawsuit Challenging Constitutionality of U.S. Senate’s Filibuster Rule

Common Cause on May 14, 2012, started a lawsuit alleging that the U.S. Senate’s filibuster Rule (Rule XXII) was unconstitutional.  Other prior posts reviewed the history of that rule and the argument as to why that rule was unconstitutional.

Now we look at the jurisdictional issues raised by the July 20, 2012, motion by defendants[1] to dismiss the complaint;[2] the August 27th plaintiffs’[3] opposition to the motion,[4] and the September 18th defendants reply to that opposition.[5] The hearing on the dismissal motion has been scheduled on December 3, 2012, before Judge Emmet G. Sullivan of the U.S. District Court for the District of Colombia.

The following are the three jurisdictional issues: (1) whether the plaintiffs have standing to bring this suit; (2) whether the Constitution’s Speech or Debate Clause bars this suit; and (3) whether the complaint presents a non-justiciable political question.

Standing To Sue

Defendants’ Argument

Article III of the Constitution sets forth provisions regarding the “judicial Power of the United States” and extends such Power to “Cases” and “Controversies.” A necessary part of any such “Case” or “Controversy” is a plaintiff with standing to bring suit.

To satisfy this standing requirement a plaintiff must show that: (1) the plaintiff “has suffered an injury in fact (an invasion of a legally protected interest which is concrete and particularized and actual or imminent); (2) the injury was caused by the defendant’s challenged conduct; and (3) the injury is likely to be redressed by a favorable decision by the court.

All of the plaintiffs fail to meet this standing requirement because, defendants argue, none of the plaintiffs has alleged a cognizable injury in fact and the alleged injuries are not traceable to the defendants’ actions and are not redressable by the court in this lawsuit.

Indeed, the courts have dismissed three prior lawsuits attacking the filibuster rule over the last two decades because those plaintiffs lacked standing to sue.

Plaintiffs’ Argument

The plaintiffs cannot and do not challenge the major legal premise of this argument. Instead, they argue that they satisfy the requirement for various reasons and that the three prior cases are distinguishable.

Speech or Debate Clause

Defendants’ Argument

Article I of the Constitution sets forth provisions regarding the Legislative powers of the United States and provides in Section 6(1) that “for any Speech or Debate in either House [of Congress], they [Senators and Representatives] shall not be questioned in any other Place.”

The Supreme Court has consistently read this Clause broadly to effectuate its purposes to provide immunity from lawsuits for all actions within the sphere of legitimate legislative activities. This is true for federal legislators themselves and for congressional officers and employees.

Here, defendants assert, all of the alleged actions by the Senate officers fall within the scope of that legitimate legislative activity. The Powell  case discussed below, they say, is distinguishable because it concerned non-legislative conduct.

Plaintiffs’ Argument

Vice President Biden as President of the Senate is not covered by the Clause because he is not a Senator; his duty is to preside over the Senate is derived from the Constitution, not from the Senate; the Vice President may not speak or debate on the Senate floor; and his membership in the Senate is prohibited by the Constitution (Art. I, § 6 (2)).

The other defendants are not protected by the Clause. In Powell v. McCormick, 395 U.S. 486, 503-08 (1969), the Supreme Court held that the House of Representatives’ Clerk, Sergeant-at-Arms and Doorkeeper were not protected in a lawsuit alleging that member-elect Adam Clayton Powell was unconstitutionally excluded from the House even though they were acting pursuant to the express orders of the House.[6]

Political Question

Defendants’ Argument

Under U.S. Supreme Court precedents, claims that raise political questions are not judicially cognizable and must be dismissed.

According to those precedents, such a political question arises when (1) the claims involve a matter textually committed by the Constitution to another branch, here the Senate; or (2) there is a lack of judicially discoverable and manageable standards for resolving the claims; or (3) resolution of the claims would require the court to intrude into another branch’s internal proceedings and thereby express a lack of respect for that branch.

Each of those alternative requirements is satisfied in this case.

First, the Constitution in Article I, Section 5(2) provides, “Each House [of Congress] may determine the Rules of its Proceedings.” Moreover, the Supreme Court has determined that to present a justiciable challenge to such rules, the plaintiff must identify a separate constitutional provision limiting those rules. Here, however, the defendants argue, there is no such separate provision.

Second, according to the defendant s, there are no judicially manageable standards to determine appropriate limits on debate in the Senate or whether or how such debate could be terminated.

Third, again per the defendants, this case would require the court to make an invasive inquiry into internal Senate processes–scheduling of legislative business, establishing and interpreting its rules, allowing debate within the Senate, determining how long such debates may continue and deciding when and how to schedule votes.

Plaintiffs’ Argument

The validity of a Senate rule is not the kind of political question that is nonjusticiable, and the Supreme Court has resolved many cases with political implications.

The validity of a Senate rule is not textually committed solely to the Senate by the Constitution like its “sole Power” to try impeachments (Art. I, § 3(6))(emphasis added))

Indeed, the Court has reviewed the validity of other Senate rules in resolving other cases. In the Powell case, for example, the Court held that the Constitution’s delegation of power to each house of the Congress to be the “Judge of the  . . . Qualifications of its own Members” (Art I, § 5(1)) did not reflect a “textual commitment to the House, in its own discretion, to determine whether a Member-elect could be seated.”

The plaintiffs merely ask the court to declare that the super-majority vote necessary for cloture be declared unconstitutional. Such a declaration would leave Rule XXII in place as a procedure for closing debate, but with a simple majority vote required. Therefore, there is no problem of having judicially manageable standards.

Finally judicial review of Senate Rules XXII and V would not reflect any lack of respect for the Senate. Instead, it would show respect for the Constitution.

Conclusion

Although I have some familiarity with these issues from my years of practicing law and have expressed my personal opinion against this Senate Rule , I have not read or re-read the many legal authorities cited by the parties. Therefore, I am not able to make a quasi-judicial evaluation of the relative merits of these arguments.

With that caveat, I think the dismissal motion should be denied with two exceptions. First, the four members of the House of Representatives and three “Dream Act” plaintiffs should be dismissed for lack of standing. This would leave Common Cause as the sole plaintiff. Second, the case against Vice President Biden should be dismissed on the basis of the Speech or Debate Clause.


[1] The defendants are Vice President Joseph F. Biden (as the Senate’s President), Nancy Erickson (as the Senate’s Secretary), Elizabeth MacDonough (as the Senate’s Parliamentarian) and Terrance W. Gaines (as the Senate’s Sergeant-at-Arms).

[2]  Memorandum of Points and Authorities in Support of Defendants’ Motion To Dismiss at 15-45, Common Cause v. Biden, No. 12-cv-0075 (D.D.C. July 20, 2012).

[3]  In addition to Common Cause, the plaintiffs are four members of the U.S. House of Representatives (John Lewis, Michael Michaud, Henry (“Hank”) Johnson and Keith Ellison) and three so-called “Dream Act” plaintiffs (Erika Andiola, Celso Mireles and Cesar Vargas).

[4]  Brief of Plaintiffs in Opposition to Motion To Dismiss at 22-70, Common Cause v. Biden, No. 12-cv-0775 (D.D.C. Aug. 27, 2012).

[5]  Reply Memorandum of Points and Authorities in Support of Defendants’ Motion To Dismiss at 3-25,, Common Cause v. Biden, No. 12-cv-0075 (D.D.C. September 18, 2012).

[6]  As previously mentioned, I was a junior attorney for the House of Representatives in this case.

Are the U.S. Senate Rules on Filibuster and Changing Those Rules Unconstitutional?

Common Cause on May 14, 2012, started a lawsuit alleging that the U.S. Senate’s filibuster Rule (Rule XXII)[1] was unconstitutional.

On September 18th, the plaintiffs in that case provided the U.S. District Court for the District of Colombia and the defendants with a legal argument as to why Rule XXII and Senate Rule V that continues the Rules from one Congress to the next were unconstitutional.[2] Let us look at that argument.

Rule XXII Is Unconstitutional

1. The Constitution was adopted to remedy the defects of the Articles of Confederation, including its supermajority provisions.

Under the Articles of Confederation, no action could be taken without the approval of delegates from nine of the 13 states. This was true for a quorum and for approval of legislation.

These provisions made the government under the Articles ineffective and unable to act. As a result, the Constitutional Convention was convened to create a new governmental structure without these and other defects.

First, the Convention rejected proposals for supermajority requirements for quorum and for passage of legislation. Instead the Convention approved the Constitution that required the presence of “a Majority of each [house of Congress] [to] . . .  constitute a Quorum to do Business” (Art. I, § 5(1)) and that “every Bill which shall have passed the House of Representatives and the Senate, shall . . . be presented to the President” (Art. I, § 7(2)).

Second, the Constitution was specific as to when a super-majority was required. That is the case in the following six circumstances:

  • two-thirds vote of Senators present for conviction of impeachment (Art. I, § 3(6));
  • (ii) two-thirds vote of each house of the Congress to expel one of its members (Art. I, § 5 (2));
  • (iii) two-thirds vote of each house to override a presidential veto of a bill (Art. I, § 7(2));
  • (iv) two-thirds vote of each house to override a presidential veto of an order or resolution (Art. I, § 7(3));
  • (v) two-thirds vote of Senators present to provide Advice and Consent to treaties (Art. II, § 2 (2)); and
  •  (vi) two-thirds vote of both houses to propose constitutional amendments (Art. V).[3]

2. The Constitution’s framers expressed their intent to reject general super-majority requirements.

Alexander Hamilton and James Madison in The Federalist Papers emphasized that the “fundamental principle of free government” was majority rule. Moreover, they said that general super-majority requirements would lead to “impotence, perplexity and disorder.”

3.  Senate Rule XXII violates the Constitution’s Quorum Clause.

The Constitution’s Quorum Clause (Art. I, § 5(1))) provides that “a Majority of each [house of Congress] shall constitute a Quorum to do business.” (Emphasis added.)

But under Rule XXII a majority of the Senate cannot do business–it cannot debate, deliberate or vote– without the presence of 60 Senators to vote in favor of a motion for cloture if even one Senator wants to engage in a filibuster.

Therefore, it is unconstitutional.

4. Senate Rule XXII violates the Constitution’s Presentment Clause.

The Constitution’s “Presentment Clause” (Art. I,  § 7 (2)) sets forth the same procedure for the passage of bills by both the House of Representatives and the Senate: passage by a majority of those voting. This is mandatory.

Rule XXII, however, requires a supermajority (60 votes) in order for the Senate to pass a bill if even one member objects to ending debate on the matter.

Therefore, it is unconstitutional.

5. Senate Rule XXII violates the Constitution because it is not included in one of the Constitution’s specific super-majority requirements.

As previously mentioned, the original Constitution has six specific situations calling for super-majority votes for certain actions by the Senate.

This specific enumeration of supermajority votes precludes the Senate from adding another in Rule XXII.[4]

Therefore, it is unconstitutional.

6. Senate Rule XXII violates the “grand compromise” of the Constitution.

The “Great Compromise” of the Constitution provided each state with equal representation in the Senate and, therefore, when in the majority with the power to pass laws.

Rules XXII violates that fundamental principle of the Constitution and, therefore, is unconstitutional.

Rule V and Rule XXII Are Unconstitutional

Rule V states that “the rules of the Senate shall continue from one Congress to the next Congress unless . . . changed as provided in these rules, and Rule XXII requires a two-thirds vote to amend those rules.

These two rules in combination violate the Constitution for the reasons previously stated for Rule XXII alone.

Conclusion

This argument apparently is supported by six law review articles or comments.[5] The defendants in this case, however, have not yet responded to this argument. Nor has the court ruled on the argument.

Therefore, the legal argument set forth in this post is just that–a legal argument. It is not a legal precedent.


[1] The history of the Senate’s Rule XXII or filibuster rule was discussed in a prior post. Another post voiced my opinion that the Senate Rules were abominable.

[2] This argument was set forth in the plaintiffs’ opposition to the defendants’ motion to dismiss the complaint for lack of jurisdiction. (Brief of Plaintiffs in Opposition to Motion To Dismiss at 16-21, Common Cause v. Biden, No. 12-cv-0775 (D.D.C. Aug. 27, 2012) [Plaintiffs’ Brief”].) Those jurisdictional issues will be discussed in a subsequent post.

[3]  There are two other super-majority requirements in constitutional amendments. The Fourteenth Amendment, Section 3 requires a vote of two-thirds of each house to remove an individual’s disability from holding any federal or state office for having “engaged in insurrection or rebellion against same or given aid or comfort to their enemies.” The Twenty-Fifth Amendment, Section 4  provides that a two-thirds vote of both houses is necessary to determine that a President “is unable to discharge the powers and duties of his office.”

[4] Analogous support for this conclusion is provided by the U.S. Supreme Court’s decision in Powell v. McCormick, 395 U.S. 486 (1969) involving the power of each house of Congress in Article I, Section 5 (1) to “be the judge of the . . . Qualifications of its own Members.” The House of Representatives had excluded Member-elect Adam Clayton Powell from Harlem because of his personal conduct outside of Congress and even though he satisfied the qualifications for membership set forth in Article I, Section 2(2): attainment of the age of twenty-five years plus seven years as a U.S. citizen and being an inhabitant of the state in which he was chosen. The Court held that “in judging the qualifications of its members, Congress is limited to the standing qualifications prescribed in the Constitution.” As previously mentioned, I was a junior attorney for the House of Representatives in this case.

[5] Plaintiffs’ Brief, at 16, n.30.

 

The History of the U.S. Senate’s Filibuster Rule

As discussed in a prior post, Common Cause on May 14, 2012, started a lawsuit alleging that the U.S. Senate’s filibuster Rule (Rule XXII) was unconstitutional.

On July 20, 2012, the defendants provided the U.S. District Court for the District of Colombia and the plaintiffs with a history of Rule XXII as part of the motion to dismiss the complaint on jurisdictional grounds.[1] This post will summarize that historical record.

Majority Ability To Halt Debate, 1789-1806

From the First Session of the First Congress in 1789 through 1806, the Senate provided for a motion for the “previous question,” which permitted a majority to determine whether a matter should be immediately considered on the merits or postponed.[2]

No Ability To Halt Debate, 1806-1917

From 1806 through 1917, there was no mechanism for the Senate to close debate over the objection of a single Senator who wished to speak.[3] There, however, was only one instance in the first half of t he 19th century when a minority of the Senators sought to block the Senate’s consideration of a matter on the merits. That concerned a resolution to expunge from the body’s journal its 1834 vote to censure President Andrew Jackson, but that attempt failed after the opponents had “talked and talked.”

In the early 20th century there was increased use, intensity and success of what came to be called filibusters. In 1917 such a filibuster prevented Senate passage of a bill authorizing President Woodrow Wilson to arm American merchant ships.

Adoption of Cloture Rule, 1917

Immediately after the blockage of the bill to authorize arming American merchant ships, the Senate held a special session, and on March 8, 1917, adopted a cloture rule. Under that rule, whenever 16 Senators moved to close debate on any pending measure, after a two-day hiatus, the Senate would vote on the question, “Is it the sense of the Senate that the debate should be brought to a close?” If that motion were approved by two-thirds of those voting, the underlying measure would be the pending business until it was voted up or down. Such a vote would come after each Senator had spoken for up to one hour or waived that right. This rule also restricted amendments and prohibited dilatory motions and non-germane amendments.

Experience with the Cloture Rule, 1917-1949

Although cloture was invoked four times between 1917 and 1927, the rule was circumvented by filibustering a procedural motion.

Amending the Cloture Rule, 1949

In 1949 the rule was amended to cover motions and other pending matters, but the number of votes necessary to invoke cloture was increased from two-thirds of those voting to two-thirds of the total Senate membership. The rule also continued to exclude resolutions to amend the rules.

Experience with the Amended Cloture Rule, 1949-1959

During this period filibusters were used to block civil rights legislation. As a result, public pressure increased to change the rule.

Amending the Cloture Rule, 1959

In 1959 the rule was amended to reduce the number of votes necessary to invoke cloture from two-thirds of the total Senate membership to two-thirds of those voting. In addition, the rule was expanded to cover motions to proceed to amend the Senate rules and expressed the Senate’s understanding that its rules continued from one Congress to the next.

Amending the Cloture Rule, 1975

In 1975, the Senate again amended the rule to change the number of votes to invoke cloture from two-thirds of those voting to three-fifths of the Senate membership (now 60 of 100) while maintaining a two-thirds vote of those present and voting to change the rules.

Experience with the Amended Cloture Rule, 1975-Present

Since 1975 there has been an increasing number of cloture votes and various proposals to change the rule regarding filibusters. But no additional changes in the rule have been adopted.


[1] Memorandum of Points and Authorities in Support of Defendants’ Motion To Dismiss at 3-11, Common Cause v. Biden, No. 12-cv-0075 (D.D.C. July 20, 2012). Subsequent posts will discuss (a) the plaintiffs’ legal argument as to why Senate Rules XII and V are unconstitutional; and (b) the jurisdictional issues.

[2] Plaintiffs have pointed out that at the time of the adoption of the Constitution in 1789, filibusters had been prevented in the English Parliament by its adoption in 1604 of the previous question motion and in the Second Continental Congress by its adoption of the same rule for such a motion. (Brief of Plaintiffs in Opposition to Motion To Dismiss at 9-10, Common Cause v. Biden, No. 12-cv-0775 (D.D.C. Aug. 27, 2012).)

[3] The plaintiffs say that the Senate’s elimination of the previous question rule in 1806 was a “quirk.” Its elimination apparently was due to comments by Vice President Aaron Burr that the Senate rules had become too complicated and that the previous question motion could be eliminated because it had only been used once in his four years acting as President of the Senate. (Id. at 11.)

Proposals for Changing the U.S. Constitution

The New York Times in its “Room for Debate” feature invites knowledgeable outside contributors to discuss news events and other timely issues. The feature also solicits comments on the topic from readers.

The feature’s July 9th topic is suggestions for amending the U.S. Constitution. Ten professors of history and law started the conversation with their suggested constitutional changes.

Contributors’ Comments

Direct Election of President. Article II, Section 2 provides for election of the president by an electoral college. Alexander Keyssar, the Stirling professor of history and social policy at Harvard’s Kennedy School, suggests abolishing the electoral college and having the president (and vice president) directly elected by the national popular vote.

He says the “concerns that prompted the Founding Fathers to adopt [the current] . . .  system — a distrust of popular elections, worry that the people would be unfamiliar with national candidates, a desire to reinforce the great constitutional compromises between large states and small states, slave states and free states” are no longer valid.

In addition, Keyssar points out that we have learned about “shortcomings in the framers’ design: the person who wins the most votes doesn’t necessarily become president; the adoption of “winner take all” rules (permitted but not mandated by the Constitution) produces election campaigns that ignore most of the country and contribute to low turnout; the legislature of any state can decide to choose electors by itself and decline to hold an election at all; and the complex procedure for dealing with an election in which no candidate wins a clear majority of the electoral vote is fraught with peril.”

As indicated below, I support this proposal.

Qualifications for Office of President. The Constitution’s Article II, Section 4 establishes the following qualifications for the presidency: “a natural born citizen,” at least 35 years old and a resident of the U.S. for at least 14 years. Akhil Reed Amar, a professor of law and political science at Yale University, proposes this be changed to make eligible “those American citizens who happen to have been born abroad to non-American parents — and who later choose to become ‘naturalized’ American citizens.” This would be consistent with the overall historical trend of increasing equality and with the current practice in the 50 states.

I am indifferent on this proposal.

Federal Judges Tenure. The Constitution in Article III, Section 1 now provides that federal judges hold office during “good behavior,” which in practice has meant for life absent voluntary retirement. Jamal Greene, a professor of law at Columbia Law School and a former clerk for U.S. Supreme Court Associate Justice John Paul Stevens, says “In a democracy, no one person should wield so much power for so long.” To solve this problem, Greene endorses a proposal by Professors Steven Calabresi and James Lindgren for Supreme Court appointments with non-renewable 18-years terms, with one new justice every odd-numbered year.

As indicated below, I support this proposal.

Re-emphasize that Treaties Are Part of the Supreme Law of the Land. Under Article VI, Section 2 of the Constitution, “all treaties made, or which shall be made, under the authority of the United States, shall be [part of] the supreme law of the land, and the Judges in every State shall be bound thereby, anything in the Constitution of laws of any State to the contrary notwithstanding.” However, as pointed out by Jenny S. Martinez, the Warren Christopher professor in the practice of international law and diplomacy at Stanford Law Schoolthe U.S. Supreme Court has held that certain treaties were not enforceable against the states. Therefore, she suggests that this provision be re-emphasized in some way.

I agree that treaties under the existing Constitution are part of the supreme law of the land and that they should bind states. There, however, is no specific proposed amendment to react to.

Changing the Process for Amending the Constitution. Article V of the Constitution provides two methods of amending the Constitution: (i) specific proposed amendments adopted by two-thirds of each chamber of Congress plus ratification by three-fourths or 38 of the states; or (ii) a call for a constitutional convention by two-thirds or 34 of the states, whose proposed amendments are ratified by three-fourths or 38 of the states. The latter method (constitutional convention), has never been used, and Michael Rappaport, the Darling Foundation professor of law at the University of San Diego and the director of its Center for the Study of Constitutional Originalism, believes that this non-use “means that Congress has a veto on all amendments and therefore no amendment that Congress opposes, including necessary reforms of Congress’s power, can be enacted.”

Therefore, Rappaport proposes that the Constitution be changed “to eliminate the possibility of a runaway convention.” The best way, he says is dispensing with “a constitutional convention and instead have the state legislatures agree to propose a specific amendment. But any method that allows for a working alternative to Congress’s amendment monopoly would be an enormous improvement.”

Rappaport has a valid objection to the present constitutional scheme, and I could accept a proposal that would allow three-fourths of the states to propose specific amendments, but would still require a two-thirds vote by each house of the Congress to adopt an amendment.

Emphasize the 10th Amendment’s Limits on Federal Government’s Powers. Under Article I, Section 8 of the Constitution, the federal government has certain specified powers, and the Tenth Amendment to the Constitution states, “The powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively, or to the people.”

According to Elizabeth Price Foley, the holder of the Institute for Justice Chair in constitutional litigation at Florida International University College of Law, these principles are important for liberty. As the Supreme Court unanimously stated in Bond v. United States (2011), “By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.”

She believes that the existing Constitution is sufficient on this point so long as it is followed by the courts, but is open to amendment to restore certain powers to the state and like Michael Rappaport endorses the suggestion that the states have the right to propose federal constitutional amendments.

Although as just stated, I support giving the states a right to propose specific amendments, I do not favor any amendments that seek to diminish the power of the federal government. In this age of globalization, it is unwise to emphasize states over the federal government.

Narrow Congress’  Power Over  Interstate Commerce Power. As discussed in prior posts before and after the June 28, 2012, Supreme Court decision regarding the Affordable Care Act, the power of Congress under Article I, Section 8(3) to “regulate commerce . . . among the several States” has been interpreted by the Court to encompass intrastate commerce that has a substantial effect on interstate commerce.

Consistent with the views of Professor Foley, Randy E. Barnett, the Carmack Waterhouse professor of legal theory at Georgetown Law Center and one of the attorneys challenging the constitutionality of the Affordable Care Act in the Supreme Court, has proposed the following amendment that he says essentially returns the clause to its original meaning:

  • “The power of Congress to make all laws that are necessary and proper to regulate commerce among the several states, or with foreign nations, shall not be construed to include the power to regulate or prohibit any activity that is confined within a single state regardless of its effects outside the state, whether it employs instrumentalities therefrom, or whether its regulation or prohibition is part of a comprehensive regulatory scheme; but Congress shall have power to regulate harmful emissions between one state and another, and to define and provide for punishment of offenses constituting acts of war or violent insurrection against the United States.”
I oppose this suggestion for the reasons stated in my prior posts.

Revising the First Amendment. The First Amendment to the Constitution states, in part, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press . . . .” Pauline Maier, the William Rand Kenan Jr. professor of American history at M.I.T, says that this language was a revision of a more expansive version prepared by James Madison. She, therefore, suggests returning to the following Madisonian version:

  • “The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext infringed. The people shall not be deprived of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.”

This wording, like most of the first eight amendments, Msier believes, affirms basic rights in general terms, not as restrictions on the federal government. It also would undermine the Supreme Court’s decision about corporate speech in the Citizens United case.

I support this proposed amendment.

Delete the Second Amendment’s Right To Bear Arms. The Second Amendment to the Constitution provides that “the right of the people to keep and bear arms, shall not be infringed.” Melynda Price, an associate professor at the University of Kentucky College of Law, proposes the deletion of this right because of the amount of gun violence in the U.S.

I like the spirit of this proposal, but would have to evaluate specific language for such a change.

Clarify the Eighth Amendment’s Ban on “Cruel and Unusual Punishment.” The Eighth Amendment to the Constitution states, “cruel and unusual punishments [shall not be] inflicted.” Rachel E. Barkow, the Segal Family professor of regulatory law and policy and the faculty director at the Center on the Administration of Criminal Law at New York University, suggests this be clarified to “specifically state that excessive terms of incarceration are prohibited, just as it bans excessive [bail and] fines.” In addition, she says , it “should expressly prohibit mandatory sentences so that every case gets the benefit of individualized attention by a judge” and “insist that legislatures create a record showing that they considered empirical evidence about the law’s likely impact.”

I support this proposal.

Readers’ Comments

Readers are invited to add their comments, and I made the following suggested constitutional changes.

1. Outlaw Senate Filibuster. To require 60% of the Senators to agree in order to do almost anything is outrageous. It should only be 51% for most issues. Earlier I called the filibuster part of the abominable rules of the Senate; another post discussed revisions to the rule; and yet another post talked about additional attacks on the filibuster.

2. Change Weight of Senate Votes. Based on population, each Senator from Wyoming would have 1 vote, for example, but each Senator from California would have 66 votes. This approach would produce a total Senate vote of 1,094 based on the total U.S. population in 2010. The weightings would be changed every 10 years with the new census.

3. Change Term of House Representatives. Change the term from two years to four years to coincide with the presidential election.

4. Direct Election of President and Vice President. I agree with Professor Keyssar that the U.S. should institute direct election of the U.S. President by the national popular vote and abolish the electoral college.

5. Eliminate Life Tenure for Federal Judges. Impose a term limit on all federal judges, including Supreme Court Justices. One solution, perhaps by statute, would be to amend the current statute on judicial retirement (28 U.S.C. § 371) to make such retirement mandatory on reaching the current age and service requirements. I essentially concur in the comments of Professor Greene.

Many years ago I made other suggestions for constitutional changes in a virtual constitutional convention. More recently I have discussed what I regard as our antiquated or imbecilic Constitution.

U.S. Senate’s Filibuster Rule Under Attack

 The U.S. Senate’s filibuster rule (Rule XXII) currently requires 60 votes to stop debate and proceed to a vote on the merits of a bill or other proposal. It was designed to encourage full and careful debate, preventing the majority from steamrolling bills into law. In practice, the rule allows a minority – just 41 of the 100 senators — to stifle debate, not just slowing down the majority, but blocking it altogether.

For most of U.S. history, the Senate minority – Republican or Democratic – used the filibuster sparingly.

But in the two years of the 111th Congress (January 2009-January 2011), the minority Senate Republicans staged at least 136 filibusters. In some cases, the majority was able to muster the 60 votes demanded by the filibuster rule and move ahead. But at least 80 times, the minority was able to block action, and even debate. And these are just the filibusters we know about; in other cases, the mere threat of a filibuster persuaded Senate Majority Leader Harry Reid to abandon legislation without even trying to bring it to the floor.

This practice of the minority Senate Republicans has continued in the 112th Congress (January 2011-January 2013).

Reform of the filibuster rule is one of the major issues supported by Common Cause, a nonpartisan, nonprofit advocacy organization for citizens to make their voices heard in the political process and to hold their elected leaders accountable to the public interest.

On May 14, 2012, Common Cause, four members of the House of Representatives and three private citizens sued Senate President Joe Biden and the Secretary, Parliamentarian, and Sergeant-at-Arms of the U.S. Senate in the U.S. District Court for the District of Columbia for declaratory and injunctive relief with respect to  Senate Rule XXII.

The Common Cause complaint asserts that the 60-vote requirement in Senate Rule XXII violates the default parliamentary majority-takes-all rule, the careful balance of powers in the legislative branch and between the three branches, and the power of the Senate itself to changes its own rules (because along with Rule V (which continues the Senate rules from Senate to Senate) Rule XXII seems to require that 3/5 of Senators vote to change Rule XXII). In particular, the complaint alleges that the filibuster violates the Quorum Clause, the Presentment Clause, the power of the Vice President to break a Senate tie, the Advice and Consent Clause, and the equal representation of the states in the Senate–all of which in different ways assume majority rule. It also argues that the filibuster is in tension with the eight constitutional exceptions to majority rule.

U.S. Senator Harry Reid

In the Senate itself last week U.S. Senate Majority Leader Harry Reid admitted that its filibuster rule should be changed and confessed he had erred in not supporting such changes at the start of this session of Congress in January 2011. The precipitating cause of this admission and confession was the Republican Senators’ using the filibuster rule to prevent a vote on reauthorization of the Export-Import Bank.

Reid’s belated support for changing the filibuster rule was welcomed in an editorial in the New York Times. But the newspaper endorsed one of the minimalist proposed changes: requiring 10 senators to start a filibuster and the supporters of a filibuster to speak continuously on the Senate floor to keep it going.

Even such a minimal change would be impossible during this congressional session because another Senate rule requires a two-thirds vote (67 senators) to change the rules. It would be easier to change the rules at the start of the next session (January 2013) when only a majority vote (51 senators) would be needed for such a change changes although some senators probably would argue that such a change would still require a two-thirds vote.

Prior posts have castigated the Senate Rules as a major deficiency in our government: “The Abominable Rules of the U.S. Senate;” “The Abominable Rules of the U.S. Senate Are Modified;”  and “Miniscule Proposed Reform of Dysfunctional U.S. Senate Rules.” A post with a more general critique of the Senate  and other aspects of our national government is “The Antiquated U.S. Constitution.”