Abuse of the Filibuster, Harming Ability to Function, Sen. Merkley Writes

November 7, 2011

by Jeremy Leaming

Wisconsin Sen. Ron Johnson, the state’s newest senator elected on a wave of Tea Party support, earlier this year lamented that during his tenure “virtually nothing” had been accomplished in the Senate.

In that same article and others, however, Sen. Johnson articulated his view that the federal government should be heavily constrained, and limited in its ability to confront national concerns.

But Sen. Jeff Merkley (D-Ore.) says Johnson, a “first-time legislator” and “a political work in progress,” as the Milwaukee Journal Sentinel described him in July, is wrong to suggest that the country’s Founders envisioned a do-nothing Senate.

Merkley writes in a column for The Washington Post:

At no time did our Founders envision that the Senate would require a supermajority to pass legislation. Indeed, the Constitution requires a supermajority only for very limited purposes, including the ratification of treaties and the override of a presidential veto.

Indeed Merkley notes that “many” Founders, including Alexander Hamilton, realized the “destructive” nature of requiring that action happen only by a supermajority vote.

“Alexander Hamilton,” Merkley writes, “observed in the Federalist papers that a supermajority requirement has a ‘tendency to embarrass the operations of government’ and would generate ‘tedious delays; continual negotiation and intrigue; contemptible compromises of the public good.’ This characterization matches how many Americans perceive the Senate today.”

Merkley then maps the changes from a time in the Senate when delaying tactics were rarely used to the present where “the Senate’s deliberative social contract has unraveled.”

He continues, “The constitutional historical norm of decision-making by simple majority has been replaced by a routine requirement to assemble a supermajority of 60.”

The Senate minority’s tactics have been used to derail President’s Obama’s American Jobs Act as well as his judicial nominations. Indeed, as noted on this blog frequently, the vacancies on the federal bench continue to remain high and are contributing to a hobbled judiciary.

In a recent ACS Issue brief, UNC School of Law Professor Michael Gerhardt and University of Minnesota Law School Professor Richard Painter call on senators to reach a new agreement on moving forward on the president’s judicial selections. The professors argue, in part, that the filibuster and threat of the filibuster, among other delaying tactics, have resulted in a more than 80 vacancies on the federal bench and continued erosion in public support of the Senate.

[image via vpickering]