IS THE CONSTITUTION WORKING?
Filibuster, Sequestration and the Federal Judiciary

Constitution Day 2013

Remarks of David M. Schraver,
President, New York State Bar Association

Roberts Wesleyan College
September 24, 2013


In 2005, our nation began to celebrate Constitution Day, an American holiday honoring the day in 1787 when 39 delegates to the Constitutional Convention signed the Constitution of the United States.  Along with Independence Day and Presidents’ Day, Constitution Day is an important part of the cultural heritage of the United States because it recognizes the value of the American experiment and the success of a nation of free people whose rights and liberties are protected by a written Constitution.

The deliberations of the Constitutional Convention of 1787 were held in strict secrecy.  Anxious citizens gathered outside Independence Hall to learn what had been produced behind closed doors.  Sound familiar?  A Mrs. Powel of Philadelphia is reported to have asked Benjamin Franklin, “Well, Doctor, what have we got, a republic or a monarchy?”  We are told that without hesitation, Franklin responded, “A republic, if you can keep it.”  

I think it is right that we periodically, at least annually on Constitution Day, focus on our Constitution.  It truly is the responsibility of each generation to understand our Constitution, to value the American experiment, and to keep the republic so many have sacrificed to preserve and protect.

There have been many interesting constitutional issues in the headlines as the result of recent Supreme Court decisions -- including whether a corporation is a person for purposes of the First Amendment (the Citizens United case), whether the Defense of Marriage Act or DOMA denies equal protection to same sex couples whose marriages are recognized under state law (the Windsor case), whether the pre-clearance requirement of the Voting Rights Act of 1965 is constitutional when applied today to states that have a history of discrimination against minorities (Shelby County v. Holder), whether affirmative action in undergraduate admissions denies equal protection to non-minority applicants (Fisher v. University of Texas at Austin), and whether the Patient Protection and Affordable Care Act, or Obamacare, is constitutional.  I have chosen not to talk about these more familiar issues.  Instead, I ask you to think about a couple of fundamental, structural issues under the Constitution and whether, in our time, the Constitution is working as intended by the framers.

I have titled my talk “Is the Constitution Working?  Filibuster, Sequestration and the Federal Judiciary.”

A threatened filibuster against the pending stopgap funding bill was in the news this morning.  So let’s first talk about the filibuster.

My Webster’s New Collegiate Dictionary, which is actually not so new anymore, defines “filibuster” as “the use of extreme dilatory tactics in an attempt to delay or prevent action esp. in a legislative assembly.”  Stated differently, it is a technique to delay or avoid a vote on a bill by prolonging debate.

The filibuster has been used in recent years by both parties in the United States Senate.  With the Republicans currently in the minority in the Senate but holding 46 seats, and the Democrats holding 54 (including 2 independents), the threat of a filibuster by Republicans to block action by the Democrats is often in the news.  Some, these days usually Democrats or their supporters, have called the filibuster unconstitutional, or at least, undemocratic.

I want to discuss what I think are the relevant provisions of the Constitution and some background of the filibuster.

Article I of the Constitution deals with the legislative powers of the federal government.  Article I, Section 5, clause 2 provides in pertinent part, “Each House may determine the Rules of its Proceedings….”  While Congress has discretion to regulate its internal procedures, courts have said it rests with the courts to evaluate Congress’s rules in relation to the Constitution.

Research failed to uncover any reported court decision on the constitutionality of the filibuster.  There is no provision for the filibuster in the Constitution, and there was not unlimited debate in the Senate until Aaron Burr presided over the Senate in the early 1800s.  After a century of chaos, in 1917 the Senate adopted Rule 22 to stop unlimited filibusters by authorizing the Senate to end a filibuster upon a two-thirds vote.  Ending debate is sometimes called cloture.

Under the old Rule 22, if senators wanted to delay or prevent a vote, they had to bring in cots and speak or read until one side or the other was exhausted.  In 1975, Rule 22 was amended to require 60 senators, not 67, to stop floor debate, which seems like an improvement.  However, a practice has developed to permit a senator to place a hold on a certain measure or matter, implicitly threatening a filibuster if the majority leader does not honor the hold.  In this way, the threat of a filibuster often is sufficient to prevent a measure or matter from coming to the floor of the Senate.  Furthermore, because the current rule and practice do not impose any inconvenience on senators, the hold and threat of a filibuster  are used much more often than in the past (reportedly over 100 times a term).

Let’s consider what other provisions in the Constitution are relevant to the filibuster and whether they would provide the basis for a constitutional challenge.

The cloture rule requires a supermajority (60%) to end floor debate and bring a matter to a vote in the Senate.  But the Constitution itself requires supermajority votes only in six specific situations (and I will paraphrase these provisions slightly for the sake of brevity, but those of you who have a copy of the Constitution can follow along):
Article I, Section 3, clause 6: “… no person shall be convicted [in impeachment] without the concurrence of two thirds of the members [of the Senate] present.”
Article I, Section 5, clause 2: “… the concurrence of two thirds [of a house is required to] expel a member.”
Article I, Section 7, clause 2: after a presidential veto of a bill, “…[approval by] two thirds of [each] house [shall be required before] it shall become a law.”
Article I, Section 7, clause 3: if an “order, resolution or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be … disapproved by [the President, it] shall be repassed by two thirds of the Senate and House of Representatives [before the same shall take effect].”
Article II, Section 2, clause 2: the President “shall have the power, with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur….”
Article V:  “The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution…”

The framers of the Constitution enumerated these six, and only these six, circumstances in which a supermajority vote is provided for in the Constitution.  There is a maxim that would have been well known to the lawyers included among the framers: “expressio unius exclusio alterius” - translated into English, the express mention of one thing excludes all others.  Under this maxim, wouldn’t the express mention of six supermajority requirements preclude the creation by Congressional rule of other supermajority requirements to take legislative action?

The importance of majority rule under the Constitution is attested to by the lengths to which Alexander Hamilton and John Jay went in the Federalist Papers to defend any departure from majority rule.

For example, Federalist No. 22 (Hamilton) addresses the right of equal suffrage among  the states under the Articles of Confederation as a problem because of the unequal populations and power of the various states.  The operation of this equal suffrage, wrote Hamilton, “contradicts that fundamental maxim of republican government, which requires that the sense of the majority should prevail.”  Hamilton continued, “[t]o give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision) is, in its tendency, to subject the sense of the greater number to that of the lesser number.”  And again, “[t]he public business must in some way or other go forward.  If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority in order that something may be done must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater and give a tone to the national proceedings.  Hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good.  And yet, in such a system it is even happy when such compromises can take place: for upon some occasions things will not admit of accommodation; and then the measures of government must be injuriously suspended, or fatally defeated.   It is often by the impracticality of obtaining the concurrence of the necessary number of votes kept in a state of inaction.” 

Consider also Article I, Section 3 which expressly says, “The Vice President of the United States shall be President of the Senate, but shall have no vote unless they be equally divided.”  Senate Rule 22’s requirement of 60 votes to end debate and bring a contested issue to a vote effectively nullifies this constitutional tie-breaking role of the Vice President since the Senate would never be equally divided on a contested issue of importance.

Finally, Article I, Section 5 provides that “a majority of each [house] shall constitute a quorum to do business….”  One reason for this rule was to keep a minority from walking out and preventing the majority from doing business or taking a vote.  Rule 22 effectively permits a minority – conceivably 41 senators from the 21 smallest states representing just over 10 per cent of our national population – to prevent the Senate from acting.  To repeat, Rule 22 effectively permits a minority, and potentially a small minority of the national population, to prevent the Senate from acting.

Considering these provisions of the Constitution, the filibuster seems to be contrary to the intent of the framers and to the democratic principle, and arguably constitutional mandate, of majority rule.

In frustration, the Senate majority has occasionally talked about changing the filibuster or cloture rule.  This is regarded as such a drastic action that it is sometimes referred to as “the nuclear option,” and when proposed recently to permit the Senate to act on certain Presidential nominations, resulted in a compromise, at least for the time being.  There seems to be no appetite or political will to revoke the filibuster rule or challenge it in court as unconstitutional, likely because today’s majority recognizes that the time will come when it is in the minority and will want to use it.  So I pose the questions:  Is the filibuster unconstitutional?  Does it prevent the Constitution from working as the framers intended?

Let’s now move on to sequestration.

The sequester is a package of automatic spending cuts by the federal government, that was agreed to by the Congress and the President.

By way of background, in 2011, the federal government was approaching the debt limit, as we are today.  The debt limit needed to be raised through a congressional vote or else the United States would default on its obligations in early August.  Democrats wanted a “clean” vote to raise the debt limit without strings attached.  Republicans wanted substantial spending cuts as a condition of raising the debt limit.  In view of this disagreement, Congressional action to avoid default could have been blocked by a filibuster or otherwise.

Default was avoided when President Obama and congressional leaders ultimately agreed to the Budget Control Act of 2011, which allowed the debt limit to be raised by $2.1 trillion and provided for the creation of a so-called supercommittee tied to the fallback sequester, plus mandatory spending reductions on top of the sequester by putting spending caps on non-entitlement discretionary spending that will reduce funding by $1 trillion by 2021.  The sequester is a package of automatic spending cuts, projected to total $1.2 trillion, which were scheduled to begin in 2013 and end in 2021, evenly divided over the 9-year period and evenly divided between defense spending (except spending on wars) and discretionary domestic spending (except for most spending on entitlements like Social Security and Medicaid).  These automatic spending cuts were to go into effect in 2013 if the supercommittee didn’t agree to a $1.2 trillion deficit reduction package by November 23, 2011.  As we now know, the supercommittee failed to reach a deal, the sequester was triggered, efforts to avoid the so-called “fiscal cliff” failed, and the sequester was implemented as of  March 1, 2013.

The impacts of sequestration on the defense budget and various domestic programs are significant and, if Congress does not pass a budget deal or enact other stopgap measures to avoid it, the impacts in the next fiscal year will be even more severe.

In the third part of my remarks today, I will focus on the impact of  the sequester on the federal judiciary budget and our system of justice.  Access to justice is one of the core values of the legal profession and of the organized bar, including the New York State Bar Association.  Significantly, the second purpose stated in the Preamble to the Constitution of the United States is to “establish justice.”

Article III of the Constitution provides that “[t]he judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”  As you know, Article II vests the executive power in the President, so we have the three branches of our government, legislative, executive and judicial, and the system of checks and balances established under the Constitution.

As one of the three branches of our federal government under the Constitution, the federal judiciary is responsible for the administration of justice, deciding cases and controversies, and discharging the duties assigned to it by the Constitution and the statutes enacted by Congress.  Sequestration and other funding cuts are seriously threatening the ability of the judiciary to perform its constitutional function.  This should be a matter of grave concern for Congress and for the American people.

This afternoon, I want to briefly summarize the impacts of sequestration on the federal judiciary as part of my theme in posing the question “is the Constitution working?” 

I have taken examples of the impact of sequestration on the federal judiciary from the August 13, 2013 letter to Vice President Biden as President of the Senate and to congressional leaders, signed by 87 Chief Judges of federal district courts from across the country, including the Chief Judges of all four district courts in New York.  The letter is on the letterhead of Chief Judge Loretta A. Preska of the United States District Court for the Southern District of New York in New York City and is available on line.

The letter starts out as follows:
“We write to you as Chief Judges of 87 federal district courts to express our grave concern over the impact the flat funding of the last few years, followed by sequestration, is having on the Judiciary’s ability to carry out its constitutional and statutory responsibilities.  As the boots on the ground in our nation’s federal trial courts, we have experienced firsthand the effect of those constraints and funding reductions.  They have forced us to slash our operations to the bone, and we believe that our constitutional duties, public safety, and the quality of the justice system will be profoundly compromised by any further cuts.”

The letter states that final enacted appropriations for fiscal year 2013 were reduced nearly $350 million for the Judiciary.  These cuts, according to the letter, have created an unprecedented financial crisis that is adversely affecting all facets of court operations.

The 4-page letter goes on to describe the impacts in some detail: a 10% reduction in staffing in the offices of court clerks and probation and pretrial services between July 2011 and July 2013 resulting in the lowest staffing levels since 1999 despite significant workload growth during this same period; 4,500 furlough days as of June 2013, and an additional 4,100 furlough days projected by the end of this fiscal year resulting in slower processing of civil and bankruptcy cases which impacts individuals and business seeking to resolve disputes in the federal courts; similar reductions in the number of probation and pretrial services officers who are tasked with insuring public safety by monitoring criminal defendants through in-person meetings, drug testing, drug, mental health and sex offender treatment, GPS-tracking, premises searching of those on probation for illegal weapons, illegal drugs and child pornography.  Security in courthouses has suffered as a result of a 30 % cut in funding for court security systems and equipment, and court security officers are required to work reduced hours, creating security vulnerabilities throughout the federal court system, including at courthouses where terrorism and other sensitive cases are resolved.  There is a risk that the courts will run short of funds for grand and petit jurors and will have to make additional cuts elsewhere or risk delaying indictments and civil jury trials.

The letter goes on to say that the most significant impact of budget cuts and sequestration so far has been the reduction in funding for Defender Services Organizations.  These organizations fulfill the mandate of the Sixth Amendment and the Criminal Justice Act for the appointment of counsel for criminal defendants who lack the financial resources to hire an attorney.  The courts are required to provide counsel for indigent defendants, and the only options for absorbing the more than $50 million cut to the Defender Services account are reducing federal defender staffing levels through layoffs or furloughs, or deferring or reducing payments to private panel attorneys.   As a result of staffing reductions, the federal defender office in New York asked to postpone the trial of alleged terrorist Sulaiman Abu Ghaith, Osama Bin Laden’s son-in-law.  And courts in the District of New Mexico, the Western District of Texas, and the Western District of New York (which sits in Rochester and Buffalo) have stopped scheduling criminal matters on alternating Fridays because of staffing shortages.

More recently, last Friday’s New York Times reported that a federal judge in Brooklyn has refused to sequester jurors in the murder and racketeering trial of four alleged gang members, citing the cost of sequestering a jury at a time the judiciary is facing what he called “devastating mandatory [budget]cuts.”  The judge said in his opinion that the government had met its burden of showing that the jury needs protection, but he found that sequestering a jury, at the projected cost of $3- to $4 million dollars based on two recent cases involving single defendants, would be too costly in the face of mandatory budget cuts.

Reductions in court budgets reduce the volume of work the judiciary is able to perform, delay communications to litigants and to the public about court functions, delay the resolution of disputes for individuals who represent themselves as well as other represented individuals and companies in bankruptcy and civil matters and to the government and criminal defendants in criminal cases, and require judges to make difficult and painful decisions.  All of this reduces the effectiveness of the judiciary, undermines the confidence of the public in our justice system, and compromises the ability of the courts to perform their essential constitutional duties.

The filibuster or threat of filibuster seems at least partly responsible for the sequester and the inadequate funding of the judiciary.  And the impact on the third branch of government raises serious concerns about whether the Constitution is working as intended by the framers.

In conclusion, let me say that the partisan political atmosphere that seems to block true bipartisan efforts to address the challenging problems of our time is unfortunate. In addition to adequately funding the federal judiciary, important issues facing our country include healthcare reform, national security and terrorism, energy and climate change, financial industry reform, immigration reform, economic recovery and deficit reduction.  Whether or not the filibuster is constitutional, the use of such rules by both parties creates at least the appearance of undemocratic or dysfunctional government, undermines public confidence in government, and significantly impedes the ability of the government to deal effectively serious issues.

Constitution Day affords us an opportunity to consider our written Constitution, a document that has provided the framework for a republic, a representative democracy, that is the envy of the free world.  It is incumbent on thoughtful people to study our Constitution, to participate in the system of self-government it establishes, to hold our elected officials accountable for making our Constitution work, and to help keep the republic created by the framers in order  “to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity. . . .”

Thank you for your kind attention.