No, Really, It's Constitutional

Today's anti-filibuster push shows up in an NYT op-ed by Thomas Geoghegan.  Regular readers know that I'm ambivalent about the filibuster in general, but I'm certainly not persuaded of any Constitutional problem by this op-ed.  Now, I'll readily admit I'm not a lawyer, but I do know a little bit about the Constitution and a fair amount about democracy and Madison.  At any rate, I'll take a look.  After a little throat-clearing, he begins:

The founders, though, were dead set against supermajorities as a general rule, and the ever-present filibuster threat has made the Senate a more extreme check on the popular will than they ever intended.

Not a good start. One doesn't have to be convinced that the Constitution was a plot against the people to believe that the Framers were wary of popular will as expressed by majority voting.  That's a major reason for the bicameral Congress and the separated branches; the regular citations, Federalists 10 and 51, cover that point.  Continuing...

This change to the Constitution was not the result of, say, a formal amendment, but a procedural rule adopted in 1975: a revision of Senate Rule 22, which was the old cloture rule. Before 1975, it took two-thirds of the Senate to end a filibuster, but it was the “Mr. Smith Goes to Washington” filibuster: if senators wanted to stop a vote, they had to bring in the cots and the coffee and read from Grandma’s recipe for chicken soup until, unshaven, they keeled over from their own rhetorical exhaust.

Just a nitpic; the change is one of behavior, not rule.  The 1975 rule change didn't kill off "live" filibusters; it was changing norms.

For the record, nothing like Senate Rule 22 appears in the Constitution, nor was there unlimited debate until Vice President Aaron Burr presided over the Senate in the early 180os. In 1917, after a century of chaos, the Senate put in the old Rule 22 to stop unlimited filibusters. Because it was about stopping real, often distressing, floor debate, one might have been able to defend that rule under Article I, Section 5 of the Constitution, which says, “Each house may determine the rule of its proceedings.”

Nice slight of hand.  We get the definitive "Determine the rule" clause,  but here connected to "real...floor debate," as if the clause is about debate procedures.  However, the clause says nothing at all about debates as opposed to other procedures.  If the 1917 version of the rule passes Constitutional muster, then so does the 1975 version.

As revised in 1975, Senate Rule 22 seemed to be an improvement: it required 60 senators, not 67, to stop floor debate. But there also came a significant change in de facto Senate practice: to maintain a filibuster, senators no longer had to keep talking. Nowadays, they don’t even have to start; they just say they will, and that’s enough. Senators need not be on the floor at all. They can be at home watching Jimmy Stewart on cable. Senate Rule 22 now exists to cut off what are ghost filibusters, disembodied debates.
As a result, the supermajority vote no longer deserves any protection under Article I, Section 5 — if it ever did at all. It is instead a revision of Article I itself: not used to cut off debate, but to decide in effect whether to enact a law. The filibuster votes, which once occurred perhaps seven or eight times a whole Congressional session, now happen more than 100 times a term. But this routine use of supermajority voting is, at worst, unconstitutional and, at best, at odds with the founders’ intent.

OK, now we get (along with a few scare words -- ghost, disembodied) the admission that the change in filibuster practice is de facto: regardless of the rules, what's changed is that filibusters have become routine and invisible.  If that's the case, however, can it really be true that the changed norms of filibustering are unconstitutional?  Are we to believe that Rule 22 is (Constitutionally) fine as long as it's not exploited by minorities?  Meanwhile, the argument about "cut off debate" as opposed to "enact a law" is weak; even in Mr. Smith what's at stake is passing a law, not talking about it.

Here’s why. First, the Constitution explicitly requires supermajorities only in a few special cases: ratifying treaties and constitutional amendments, overriding presidential vetoes, expelling members and for impeachments. With so many lawyers among them, the founders knew and operated under the maxim “expressio unius est exclusio alterius” — the express mention of one thing excludes all others. But one need not leave it at a maxim. In the Federalist Papers, every time Alexander Hamilton or John Jay defends a particular supermajority rule, he does so at length and with an obvious sense of guilt over his departure from majority rule.

This argument might have some weight if there was no other clause telling the Senate about setting its rules.  But there is!  Article I, Section 5 means that we don't have to figure out whether or not supermajority procedures other than the ones in the Constitution are allowed; we know they are, because "each house may determine the rule of its proceedings."  The principle cited here is relevant when legislative or Constitutional language is ambiguous or silent on some point, but, again, that just isn't the case here.

Notice, by the way, that there is also a huge difference between the Constitutional supermajority requirements (only can be changed with a Constitutional amendment, which is extremely difficult) and supermajorities set in Congressional rules (probably can be changed by majority rule whenever the Senate really wants to change them).

Second, Article I, Section 3, expressly says that the vice president as the presiding officer of the Senate should cast the deciding vote when senators are “equally divided.” The procedural filibuster does an end run around this constitutional requirement, which presumed that on the truly contested bills there would be ties. With supermajority voting, the Senate is never “equally divided” on the big, contested issues of our day, so that it is a rogue senator, and not the vice president, who casts the deciding vote.
The procedural filibuster effectively disenfranchises the vice president, eliminating as it does one of the office’s only two constitutional functions. Yet the founders very consciously intended for the vice president, as part of the checks and balances system, to play this tie-breaking role — that is why Federalist No. 68 so specifically argued against a sitting member of the Senate being the presiding officer in place of the vice president.

Disenfranchises the Veep?  C'mon.  If the Senate wished to do so, it could conduct all of it's business in the Committee of the Whole, and then have a norm of unanimously endorsing whatever they do in that body, thus completely eliminating the Veep.  That's what "determine the rule of its proceedings" means.  They get to decide.  Now, it's good Constitutional design that the Framers remembered to install a tie-breaker in their even-numbered Senate, but to give the throwaway paragraph at the end of Federalist 68 very much weight seems far-fetched to me (Hamilton there makes no positive argument for the Veep; he says of the tie-breaker vote that someone has to do it, and he says of presiding that it would be a conflict for a Senator to both preside and represent his own state, and so, again, someone has to do it.  There's no argument to be found in 68 for the importance of the office of the Vice President.

Third, Article I pointedly mandates at least one rule of proceeding, namely, that a majority of senators (and House members, for that matter) will constitute a quorum. Article I, Section 5 states in part that “a majority of each shall constitute a majority to do business.” Of course, in requiring a simple majority for a quorum, the founders were concerned about no-shows for a host of reasons — not least of all because the first legislators had to travel great distances by stagecoach.

OK so far.  It's not the only dictated procedural rule; the Senate must choose a president pro tem, and other officers, and keep a journal, and there are some rules about meeting and adjourning.

But the bigger reason for the rule was to keep a minority from walking out and thereby blocking a majority vote. In Federalist No. 75, Hamilton dismissed a supermajority rule for a quorum thus: “All provisions which require more than a majority of any body to its resolutions have a direct tendency to embarrass the operations of the government and an indirect one to subject the sense of the majority to that of the minority.”
It would be illogical for the Constitution to preclude a supermajority rule with respect to a quorum while allowing it on an ad hoc and more convenient basis any time a minority wanted to block a vote. Yet that is essentially what Senate Rule 22 achieves on any bill that used to require a majority vote.

Is this true?  In Federalist 75, Hamilton is comparing two potential different supermajority arrangement for treaties, either a supermajority of all Senators or of.all Senators present.  He doesn't compare, here, a supermajority to a simple majority at all.  He argues, anticipating frequent absences (see the bit about stagecoaches, above), that a supermajority of all Senators would be tantamount to a requirement of unanimity.  That's what he's objecting to, not to a supermajority (which, in fact, he apparently thinks is unremarkable at this point).

And that's it.  Geoghegan then summarizes his argument, mentioning the maldistribution of the Senate (which, whatever it's faults, is certainly Constitutional), and then talks about how to repeal it.

One last point here.  I referred earlier to Federalists 10 and 51,  but that doesn't directly contradict Geoghegan's claim that "every time Alexander Hamilton or John Jay defends a particular supermajority rule, he does so at length and with an obvious sense of guilt over his departure from majority rule."  I've already pointed out that Hamilton does no such thing in the case of affirming treaties.  Nor does he do so in the case of the veto override, in Federalist 73 (indeed, he refers somewhat less than generously to the actions of a "bare majority").  Hamilton spends two papers on impeachments (65-66), but almost all of those is dedicated to showing that the Senate is the correct body to try impeachments.  The supermajority standard is referred to there as a guard against improper action, but it's not a defense, and certainly not a defense at length, against an alternative of a simple majority.  Instead, it's in the context of why if someone has to try impeachments, the Senate is the best positioned to do so, and we've even made sure that the Senate has to really mean it.   Even less helpful to Georghegan's cause is Jay's contribution, in Federalist 64, about treaties.  Of fourteen paragraphs, the supermajority issue is only joined in one or perhaps two sentences:

From this cause, probably, proceed the fears and apprehensions of some, that the President and Senate may make treaties without an equal eye to the interests of all the States. Others suspect that two thirds will oppress the remaining third, and ask whether those gentlemen are made sufficiently responsible for their conduct; whether, if they act corruptly, they can be punished; and if they make disadvantageous treaties, how are we to get rid of those treaties?

From this, we are supposed to see guilt over the departure from majority rule?  This is the exact opposite: a defense against the idea that the supermajority in this case is sufficient enough to protect minority interests.

For better or worse, the filibuster is Constitutional.  And it's Constitutional (well, outside of the technical reason that the "determine the rule" clause is straightforward and clear) precisely because the Framers of the Constitution were not particularly worried about majority rule.  The entire scheme of the Constitution is dedicated to making it very difficult for majorities to act; the idea that simple majorities should be able to do whatever they want was the farthest thing from the Constitution's principles.  At any rate, supporters of the improbable claim that the Constitution forbids the filibuster are better off with the idea that it never occurred to the Framers, not the easily debunked idea that they were strong believers in simple majoritarian democracy.