Legal Commentary

Common Cause?s Filibuster Flip

By Jonathan H. Adler

In 2005, Common Cause vigorously defended the filibuster when some Republicans proposed invoking the ?nuclear option? to end the filibuster of judicial nominees.  From a 2005 press release:

Common Cause strongly opposes any effort by Senate leaders to outlaw filibusters of judicial nominees to silence a vigorous debate about the qualifications of these nominees, short-circuiting the Senate?s historic role in the nomination approval process.

?The filibuster shouldn?t be jettisoned simply because it?s inconvenient to the majority party?s goals,? said Common Cause President Chellie Pingree. ?That?s abuse of power.?

(Hat tip: Don Surber)

Today, however, Common Cause is actively supporting filibuster ?reform.? It?s one of the campaigns highlighted on Common Cause?s website. Now Common Cause argues that the filibuster is ?an historical accident? and a tool of obstruction.

A filibuster is the use of unlimited debate not to inform or persuade, but to obstruct the proceedings of a legislative body and prevent the majority from taking action opposed by the minority.

Today, majority rule has been replaced in the Senate by minority rule. The Senate filibuster rule (Rule XXII) gives a minority of 41 Senators ? who may be elected from states that contain as little at 11% of the nation?s population ? the power to prevent the Senate from debating or voting on a bill, resolution or presidential appointment.

The filibuster was clearly not an original part of the Founding Fathers? vision of our government. If they had intended a 60-vote supermajority requirement to pass bills, they would have included it in the Constitution, just like they explicitly required a supermajority to override a presidential veto.

This sort of flip-flop is expected from partisans, but not from purportedly non-partisan, good-government organizations.

UPDATE: Here?s more: A December 2010 release complaining that the filibuster of judicial nominees threatens to ?cripple our federal judiciary.?

Full post as published by The Volokh Conspiracy on February 06, 2011 (boomark / email).