Separation of Powers and Federalism

Diana Kasdan, Counsel, Brennan Center for Justice

Every senator needs to put “fix the filibuster” at the top of his or her New Year’s Resolution List. Specifically, they need to resolve to pursue serious rules reforms that can curb the exponential rate of obstruction in recent decades. And it must happen on January 3rd. Here are three reasons why:

1.      Congress is Broken and Senate Obstruction is Part of the Problem

The 112th Congress has had the lowest output of any since at least World War II. This stems from reasons well beyond divided control of chambers, which defines the current and incoming Congress. Control of the House and Senate was also divided from 1981 to 1987, yet Congress enacted an average of nearly 600 public laws during each two-year period, compared to barely 200 in the current session.

So what is causing this decline in productivity? One prime culprit is filibuster abuse. As a recent Brennan Center reportconfirms, longstanding procedural rules have become tools of obstruction allowing legislative minorities to impose a veto on nearly every order of Senate business. Even when addressing matters purely within its own control, the Senate is at a virtual standstill. The Senate has passed a record-low 2.8 percent of its own bills. At its peak efficiency in the 1950s, the Senate passed nearly 27 percent of its bills. And, on average, it has taken 188 days for the Senate to confirm a judicial nominee during the current Congress, creating 32 “judicial emergencies.” Only at the end of the congressional term in 1992 and 2010 have there been more judicial emergencies.

by Jeremy Leaming

If the Obama administration decides to move aggressively to scuttle efforts in Colorado and Washington State to take a different – many would say progressive – approach to the war on marijuana it won’t be because the administration had no alternative. Indeed plenty of academics, pundits and federal lawmakers are hoping the administration will support, not hinder, the experimentations in those two progressive Western states and are airing plenty of ways the administration could respond.

University of Denver law school professor Sam Kamin detailed some of the possibilities the government could take with respect to the marijuana legalization initiatives that passed with strong support in Colorado and Washington. One of the possibilities Kamin highlighted was a bill recently introduced by Rep. Diana DeGette (D-Colo.) “allowing states to essentially opt of the CSA [Controlled Substances Act outlaws marijuana and is administrated by the Drug Enforcement Agency] enforcement by passing laws that conflict with the federal prohibition ….”

Rep. DeGette in a press statement announcing the legislation said several of her colleagues were concerned “about the federal government’s ability to override these voter-approved initiatives ….”

“In Colorado,” DeGette said, “we’ve witnessed the aggressive policies of the federal government in their treatment of legal medicinal marijuana providers. My constituents have spoken and I don’t want the federal government denying money to Colorado or taking punitive steps that would undermine the will of our citizens.”

In a piece for Rolling Stone, Tim Dickinson writes that while the federal government “cannot force” Colorado and Washington “to impose criminal sanctions on pot possession,” the federal government “has great power” to block the states’ abilities to tax and regulate the sale of marijuana. (In an editorial, the magazine’s publisher Jann S. Wenner hopes the president won’t tap that power and urges an end to the war on weed calling it a “sham, a folly, a colossal waste of money and human potential.”)