Thread by @AceBearstrom

Let’s Take the Filibuster to Court

@SpeakerPelosi @POTUS @VP

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1/The silent filibuster is not a procedural rule but a change in the enactment of law by majority vote neither permitted by Article I nor with the consent of the House.

2/The failure to surmount a Senate filibuster and pass a bill to create a bipartisan committee to investigate the January 6 insurrection is a gut check for Democrats who should no longer treat the procedural relic as a mere potential or imaginary threat to their governing agenda.

3/Their inability to unite against the filibuster and end this sorry practice is on their shoulders. They should be moving heaven and earth to dislodge this infernal practice from the upper body. Allies in this mission are, unfortunately, in too short supply in their own caucus.

4/It is not the talking filibuster that a suit would challenge. Under Article I, the Senate can have its own procedural rules, and cloture—ending debate in a talking filibuster—is procedural, an efficient way to get to a vote. All the majority has to do was wait out the talk.

5/But it is not possible to wait out today’s perversion of the form: the “silent” filibuster, neither an alternative procedure nor a time-saving way to get to a majority vote. Rather, a supermajority must agree if there is to be a majority vote at all.

6/There is also no principled rule for when this absolute supermajority requirement applies, it is at the whim of the minority. As it is not a procedural rule, but rather a change in the enactment of law by majority vote, the filibuster is neither permitted by Article I, ...

7/... nor is it permitted with the consent of the House. Had the Framers gotten an inkling that this is what the filibuster would become—and in 1789, nothing like it existed anywhere in the world—they would have taken steps to explicitly ban its implementation.

8/One of the reasons the Constitution even exists is that the Framers wanted to get rid of the dysfunctional supermajority rules laced through the Articles of Confederation. A supermajority rule, Madison wrote in Federalist No. 58, reverses the principle of free government.

9/The silent filibuster restores the very undemocratic supermajority barriers that the Constitution’s framers went out of their way to reject. Worse, the legislature is now checked by both the supermajority burden and the bicameral check and balance the Framers invented.

10/No challenge to the filibuster has ever reached the Supreme Court—but several challenges have failed in the lower courts. Each case has been dismissed on technical grounds, but there might be ways around this.

11/The members of the House of Representatives are best suited to be the plaintiffs in such a complaint. If these House members frame the suit in the right way, the technical grounds that lower courts have used to dismiss these suits in the past will disappear.

12/The filibuster stands as an unconstitutional check on the ability of the House to be the representative of the majority. The filibuster is a diminishment of the power granted to the House in the Constitution.

13/If the cloture rule in its current form violates the separation of powers under Article I, the fact that it is a “procedural rule” is not a legitimate cover. As plaintiffs, the House members could seek just a declaration or declaratory judgment binding on the vice president.

14/Under the express language of the Declaratory Judgment Act, a federal court can issue a declaratory judgment even if the court does not or cannot give any further relief, such as an injunction.

15/If the filibuster is unconstitutional impairment of the separation of powers, there is no reason for the plaintiffs or the court to assume that a majority of senators sworn to uphold the Constitution would not take guidance from an authoritative ruling.

16/ It would also clarify whether senators like Manchin were defending the foundation of our form of government, as they claim, or acting illegally to undermine it.

17/We should start trying now to save our American Republic in every way we can.