an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
I want to make a limited observation about the pending vote on Syria resolution. This is one of the rare occasions where an old-fashioned talking filibuster could be meaningful.
Let's say that there are 30 senators who think that bombing Syria is a really terrible idea. They could hold the floor for weeks (taking turns) telling C-Span2 viewers why they think that is so. The President would almost certainly not launch air strikes while this debate was ongoing, and a lengthy discussion like this might change (or intensify) public opinion and sway elected officials.
Senator Rand Paul (who did stage a one-man filibuster earlier this year) made the comment the other day that senators could wage a conventional filibuster against the resolution (in other words, forcing the majority to come up with sixty votes). This is a preposterous idea. The President will not refrain from military action if he gets a majority in Congress, but not sixty votes in the Senate. That would be an endorsement of his plan, not a repudiation of it. Only a Senator could think otherwise. Posted
by Gerard N. Magliocca [link]
Cloture would be available in part since the talking filibuster was seen as too meaningful during WWI.
I don't get your point. Why should it make a difference what kind of filibuster is being used? Either way, cloture could be invoked, could it not? And if the President wants to declare himself authorized because a majority supports him, he can do that regardless of what kind of filibuster is being used. After all, he has already declared himself authorized regardless of whether a majority supports him.
I don't think the distinction that you're drawing between talking and non-talking filibusters makes sense. Rather, the relevant question should be whether a majority of Senators substantively agree with the President.
If 50+ but 60- Senators vote for cloture because they *substantively* agree with the President, then you're probably right that the President will treat that as majority approval and proceed notwithstanding the filibuster -- but that's true *whether or not* the dissenting 40- Senators who are filibustering are actually on the floor the whole time.
Conversely, if 50+ but 60- Senators vote for closure as a *procedural* matter *without* at least a majority also substantively agreeing with the President, then the President should not treat that as majority approval and proceed in the face of the filibuster -- and again, that's true *whether or not* the dissenting 40- Senators who are filibustering are actually on the floor the whole time.
In short, the relevant question is not the particular manner in which the 40- Senators conduct their filibuster (talking vs. non-talking), but the particular reasons for cloture given by the 50+ but 60- Senators (substantive agreement with the President vs. procedural preference for a final vote).
The talking filibuster might mean that we never know how many will vote yes because the resolution would be pulled from the floor. Or that filibuster might convince people who are leaning yes to vote no, largely by giving their constituents more time to yell at them.
I really don't get this post. Are you assuming that although only 30 Senators are filibustering, there are not 60 other Senators willing to vote for cloture? Because if there are, then the 30 cannot filibuster "for weeks."
I agree with the "critics" that cloture would almost certainly be achieved unless, as a reality, there were 41 senators adamantly opposed to the resolution.
But there is another issue: there is almost literally no reason to assume that 51 senators (or even 60) necessarily "represent' a majority of the population. That's just the point of the egregiously apportioned Senate. So one can imagine a very narrow victory in the House, provided by Republican representatives who are the beneficiaries of highly partisan gerrymanders that enabled them to keep the House while the Democrats nationally got two million more votes, and a similar "majority-minority" victory in the Senate.
We simply have to stop thinking that majorities in the House and the Senate have much, if anything, to do with registering the majority preferences of the American public writ large.
A republican form of governance may at times be a Republican (politically) form of governance. Yes, Senate majorities may not represent the views of a majority of Americans. But today the same applies, for different reasons, to House majorities. But a republican form of governance is based upon representation by individuals who may exercise their own judgments which at times may vary from the views of constituents. If constituents don't like it, there is always the next election (perhaps too long for Senators) and the First Amendment, including the important role of a vital Fourth Estate. If we were to have a constitutional convention focusing on this issue, would current technologies suggest instant polling of constituents for Congress to act? I think not. The system sucks at times and may never be perfect, but we can do better even with what we got.
Rand Paul used his last filibuster to educate the public and his colleagues about the Constitution's limits the President's power and shamed the Obama administration into at least publicly backing down.
Paul could accomplish a similar education here on the Declaration of War Clause. I hope he does and backs down Obama from his position that he can start a war with Syria by decree.