The Modern Filibuster – Senators Were NEVER Meant To Have Presidential Veto Power

Memo to Joe Manchin and every other Senator fighting repeal or even reform (back to what it was until early in Nixon’s first term) of the filibuster:   If you want the power Presidents are granted in the Constitution to approve or reject (veto) stuff passed by Congress then run for and win the Presidency!   Other Senators have done it.   But if you don’t win a Presidential election then accept that YOU Mr. or Ms. individual Senator don’t get to exercise veto power.

The modern version of the filibuster that’s been in use for fifty years now is the functional equivalent of Presidential veto power.  Think I’m crazy?   Really?   Think about what you know about Presidents and their veto power.   Ok, so the word Veto doesn’t appear in the text of the Constitution but that’s the shorthand we all know and use when it comes to President rejecting a matter presented by Congress and sending it back with the reasons it was rejected.   The founders specifically gave this power to the President, and set  steep bar for Congress to override a veto.   They did not give, or even hint at Senators having, much less routinely using (far more than Presidents do) veto power.   I’d ask you to consider how the Legislative Process in Article I, Section 7 is defined and how it’s supposed to work.  There are three clauses in the Constitutional language:

• First there is the Origination Clause.  Laws and resolutions can begin in either chamber of Congress but the Constitution prescribes that budget and revenue matters must begin in the House.  Although hotly debated this concession was granted to larger, more populous states upset about the disproportionate makeup of the Senate in favor of smaller states.
• Then we have the Presentment Clause which says any law passed by both chambers must be presented to the President for approval.   As already noted while the word veto doesn’t appear in the Constitution the clause says the President can accept and sign the law or return it to the chamber in which it originated with stated objections.   At that point Congress can either amend the legislation as recommended by the President and “present” it again or override the “rejection” (veto) with a two-thirds vote by each chamber.
• Finally we have the Presentment of Resolutions Clause, because Madison foresaw the possibility of Congress trying to get around the Presentment Clause via joint or concurring resolutions.   While Congress can in fact pass Joint or Concurring Resolutions and take other actions (adjournment for example) without Presidential approval there are limits placed on what Congress can do without Presidential approval.

It can get complicated at times but what it boils down to is that Congress passes bills or resolutions, after which Presidents are given the power to accept or veto them.   In the latter case Congress has to work pretty hard to either adjust something to get it signed into law or override a President’s veto.   That’s how the system is supposed to work.

It’s not that way anymore, and hasn’t been for a while.

Anyone reading this knows the old Jimmy Stewart performance in Mr. Smith Goes to Washington form of filibuster.   Hell, some readers might be old enough to remember the last notable real time version of the old-school stand on your feet and talk, talk talk to hold the floor when Strom Thurmond tried to derail a Civil Rights bill.   That was the way of things for almost two hundred years.   Hold the floor by continually talking and maybe getting some help from friends via some parliamentary tricks.   It was mostly a method to call attention to something and short-lived although if done at the right time when other pressing business needed to be taken care of it could force some compromise.

However, roughly fifty years ago then Majority Leader Mike Mansfield (a Democrat!) engineered not only the end of the talking filibuster, but (in my opinion even worse) the “dual track” procedure that allowed other business to go on as usual while a Senator(s) had a “hold” on a given matter.   No more having to stand there battling fatigue, hunger and dehydration to hold the floor as all other business ground to a halt.   From where I sit, which is the perspective of an ordinary citizen Senators decided they were special, and far too grand and important to have to subject themselves to the indignities of hoarse speech from continual talking, the indignity of the issue of having to pee or take a dump, or even passing out from fatigue.   So, assuming (Hah!  Talk about naive, wishful thinking!) it would only rarely be used they created a non-talking filibuster and while they were at it one that didn’t hold up other business as one of them made some point of holding up this or that matter.

That was the theory.   In the real world and steadily over time “holds” (filibusters) become not only more common but a political weapon.   A weapon that if not a nuke is close, but as easily used as an infantryman’s rifle.

Any Senator can, and for any reason no matter how justified (like trying to keep a rapist/would-be rapist off SCOTUS for example) or downright petty (so and so was mean to me with a tweet) stop a piece of Senate business in its tracks.   And force those who want that matter to see it get a final vote on the floor to muster sixty Senators to invoke cloture and get that final vote.   That’s become next to impossible.  Even when time is of the essence, and the national well-being or even National Security is at stake!    All a Senator has to do is raise their formal objection and that’s that.   Again, that was never the intent of the founders.   It was rather an increasingly inflated sense of self-importance on the part of Senators that each of them should hold that kind of power.   Having outsized influence over the legislative process, including the intended built in protections of extra minority influence since each state is allocated two Senators even if they have less people than some Congressional districts apparently wasn’t and still isn’t enough.

Although he’s not the only one in the Democratic Party opposed to eliminating or reforming the filibuster once again my former Gov./Senator Joe Manchin is showing his ass and reveling with his drunken power yet again.    He just loves being the center of attention.   Maybe he even harbors Trumpian delusions of grandeur as in having the spotlight shining brightly on him.   If so perhaps someone should warn him to be careful what you ask for.  However ole Joe Manchild playing Mister Big Shot and holding everything hostage by threatening to oppose any changes to it is only the latest symptom of the long out-of-control problem of abuse of the Senate filibuster.   I don’t need to detail just how out of whack things have gotten, since I can assume anyone reading this already knows it.   Oh, and let’s not kid ourselves about the fact that if the roles were reversed there would be plenty of Republican Senators clamoring to end the filibuster while some insisted on preserving it.

The self-professed “World’s Greatest Deliberative Body” (I write in quotes hoping you’ll take it with every bit of contempt and derision you can imagine me having – and it’s a LOT!) has been made up mostly of old guys and almost exclusively so. (Old WHITE guys I might add) Yes, there are more women nowdays, and even a handful of non-white folks as well as some under sixty years old.   But take a look at a group photo of the Senate or the Senate in session (when they are all present) and it’s clear there’s a ways to go.   Anyway, it’s been clear for too long that the Senate is decidedly not a deliberative body, much less the world’s greatest one.   It’s devolved into an institution where every single member has the ability, for any reason (whether good or bad) hold veto power over every matter that comes before it.   Reducing the number of votes from two-thirds (67) to sixty for cloture allowing a final vote yes or no on a law or resolution doesn’t change the fact that it’s every bit as difficult most of the time to achieve as overriding a Presidential veto.

Once again I say those who wrote and ratified our Constitution never intended individual Senators to have that kind of power.

Sadly, Senatorial ego grew out of control.   This whole notion that ONE single Senator could stop a piece of legislation or a confirmation in its tracks by simply formally registering an objection and forcing a cloture vote appealed to their vanity.   It still does and too many are dug in like ticks fighting to hold outsized power.   Power that was never granted or even hinted at in the Constitution.   Presidents were given the veto, Senators and Representatives were given individual votes on bills or resolutions – NOT a form of a pre-emptive Presidential veto.   I don’t think individual Senators should have a power that was granted specifically to and ONLY to Presidents.   Do you?

I think that should be the message to any Senator resisting eliminating, or at least reforming the filibuster back to before the reforms of fifty years ago.   That the filibuster has become the equivalent of a Presidential veto and if YOU Mr. or Ms. Senator want Presidential power then run for and win the Presidency!   Absent that sit down, STFU and accept your still lofty place in our system of government and allow the system to work the way it was designed to do.