The Monkey Cage has featured several comments by Congressional scholars in the wake of the Common Cause lawsuit filed earlier this week. I think all of it is quite accessible for non-academics, but there's a fair amount of it, and there are some disputes that I think go beyond what most reformers are interested in, as fascinating as arguments over the Federal Elections Bill of 1890-1891 and the 1806 decision about the previous question are to some of us. Well, me, anyway. (The links? Here's Greg Koger, Steve Smith, Sarah Binder, and Eric Schickler and Greg Wawro. You may also be interested in my related post earlier this week; I'm not a Senate scholar, but I do try to keep in touch with the literature).
Anyway, if what you really want is the takeaway from all of these scholars, here's what everyone agrees about:
1. The filibuster is Constitutional. As Steve Smith says, "the best interpretation of Art I, Sec 5 is that the matter of Senate rules is to be left the Senate." That's where the Constitution says that "each house may determine the rule of its proceedings."
2. The filibuster can be changed or eliminated by a majority of Senators, contrary to the claims of the Common Cause lawsuit and contrary to what a lot of people -- including some Senators -- say.
That's really all you need to know.
I believe, but I can't say for sure, that each of these scholars would agree that a determined majority could enact changes in filibuster rules at any time, not just at the beginning of a new Congress. I've talked to some of the authors, not all of them, about it, and my sense from that and what they've written is that while there's a fair amount of murkiness about exactly what procedures would be needed to do so, the bottom line is that if a majority wants to do it, they can whenever they choose to do so. That's certainly my belief, and I think it's consistent with the actual showdown over judicial nominations during the Bush administration.
I don't want to steer anyone away from the wonderful posts the Senate experts have been writing (or, for that matter, from my own in-depth analysis of these issues); if you want to understand the Senate, read them! But if you just want the basics, that's it.
How pathetic is it that I like a good nerd fight on the actual weight that should be put on the 1806 previous question decision, and find it compelling reading?
ReplyDeleteWhatever the merits, I have trouble believing that Common Cause actually thinks it's going to end the filibuster with a court ruling. I'm guessing that the real purpose of this lawsuit is to underscore the problem and help consolidate an elite consensus against the filibuster. The infamous gag rule of the 1840s, which prevented slavery from being discussed or petitioned against in Congress, eventually fell, not because it was formally struck down, but because it just became too difficult for members of Congress to keep defending with a straight face. The movement against the filibuster might be shaping up similarly.
ReplyDeleteWhat I find fascinating is that the essential nub is whether a majority of the Senate has the power to change its own rules. If they don't, then the rule preventing them from doing so does indeed seem to be unconstitutional. If it doesn't, then it appears that a substantial number of people, Senators included, believe that they can't and need to be corrected. In either case clarification by the Supreme Court would be extremely helpful.
ReplyDeleteI leave Mat jarvis's question to stand on its own merits.
ReplyDeleteWhile in theory a determined majority could hack their way through the rules at anytime, the practice that it takes a 2/3 majority to change rules during a session would have to be overturned, presumably by a 2/3 majority. And there may be other rules roadblocks that scholars of the Senate might suggest just to get to a vote on the filibuster.
On the lawsuit as pressure politics: sure, but I'm not buying that it's an effective means of getting the key Senators to flip either directly (by convincing them) or indirectly (by motivating partisans).
ReplyDeleteOn the point by Anon,
No. It would *not* take 2/3 majority to change the rules during a session. That's the point. What's more obscure and uncertain is the best means of getting new rules by a majority vote, but I believe, and at least several of the Senate scholars believe, that the bottom line is it can be done. E.g. Republicans during the Bush years were going to do it by having the parliamentarian make a ruling and then support the ruling by majority vote (or maybe it was the other way around; they would have overruled a ruling by majority vote -- I'd have to look it up).
Actually, if there was an appeal of the ruling of the chair (namely, ruling that the Ayes have it on the question of changing the rules), couldn't a misinformed senator vote against that appeal on the basis of their misinformation?
DeleteWe're getting pretty deep into the rules of Calvinball on that, though. It requires very principled AND misinformed Senators voting their true preferences as to parliamentary procedure.
I'm not buying that it's an effective means of getting the key Senators to flip either directly (by convincing them) or indirectly (by motivating partisans).
DeleteI was thinking of it more as part of a (possibly long) campaign to influence the commentariat -- to get more pundits (and maybe poli-sci bloggers and their readers) talking up the problem, so that the elite consensus eventually starts to lean toward "the filibuster has to go." That, as I say, is (if I understand correctly) roughly what happened to the odious pre-Civil War gag rule.
And sure enough! Here we are talking about the problem. Mission accomplished! (Well, one small step closer, anyway.)
Your first point is overly simplistic. The senate can make its own rules, but it can't make rules that aren't constitutional. What if they made a rule that required unanimous approval, instead of two-thirds? The constitution was written "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". Are rules which keep the senate from satisfying these purposes constitutional? I haven't seen anybody note that the Vice President only votes when the senate is equally divided, which seems to be another indication that the expectation was that the majority would rule, except in the instances where the constitution calls for two-thirds.
ReplyDeleteThat's an excellent point about the Vice President. It does seem eminently clear that the Framers were expecting the Senate to function routinely by majority vote. Or at least, it would be fun to see Scalia, Mr. Originalist, obliged to explain how he manages to read that clause any differently.
DeleteWell, here are some of my thoughts on the issue:
ReplyDeleteIf the threshold for passage of a bill, nomination, or resolution (that is not a treaty, conviction, expulsion, veto override, or constitutional amendment) were not presumed by either chamber of Congress to be a simple majority, why then did they not, ever, write a rule establishing such a threshold?
Further, if Congressional precedent carries the narrow but significant weight that some impute to it (Gerhardt, Fisk and Chemerinsky, and others, and I partially agree with them), should not then the historical record of Congress—it has in fact passed most bills by "bare majority rule" (regardless of debate procedure) from its inception, and for 223 years since—strongly support the sense that Congress and its members have from the outset considered majority vote to be its clear, natural threshold for passing legislation? If it weren't, again, they woulda made a rule.
And a modest proposal: if neither the Constitution nor the houses of Congress in fact presume a simple majority to be the threshold of passage, then the Senate could pass a new rule stating that passage now requires, say, 33 votes. And the House could pass a new rule stating that passage now requires 175 votes. This would be wholly constitutional.
To the contrary, I find that Section III, D-F of Bondurant's argument (in the pdf link I sent, not the Complaint, which is oddly less robust) thoroughly and convincingly presents the evidence that both the Framers and the first Senators, many of whom had been intimately involved in debating and refining the proposed Constitution during the Federal Convention, in fact did assume a "bare majority rule" requirement for passage. And that that assumption resides within the Constitution. That evidence includes citations of conflicts with the Quorum Clause, the Presentment Clauses, and the "casting vote" clause; Supreme Court ruling on the interpretation of Article I, Section 7 (Ballin); on point debates in the Federal Convention; and Hamilton and Madison, Federalist 22, 58, and 75.
Now, an assumption may not be enough, however forcefully proven. And the second part of the argument—that the filibuster has made cloture and passage functionally equivalent, and therefore unconstitutional—faces a much higher hurdle, which Bondurant has more difficulty clearing.
The filibuster, while egregiously abused, is not now preventing ALL senate business from getting done.
Can something become unconstitutional after it has grown to a certain degree?
If in fact the filibuster were being used to block every single senate bill for a significant period of time, say, an entire congressional session, then a lower judge and eventually the justices might be moved to consider that a wealth of evidence, both extraconstitutional (from the Constitutional Convention and the pens of the Framers) and Constitutional (plain implications in the Quorum, Presentment, and casting vote clauses), should lead them to recognize in the Constitution an assumption of a requirement of "bare majority rule" for the passage of bills.
(Continued in next comment)
You maintain that the Framers "were not particularly worried about majority rule," and you cite many Federalist passages, and the many other antimajoritarian features of the new Constitution. But Bondurant also cites many passages to the contrary, and presents evidence from the Constitutional Convention, Supreme Court precedent, and other sources to argue the opposite, with regard to the specific question of majority vote, not necessarily the larger principle of majority rule. (Bondurant and others do weaken their arguments by citing the "democratic principle of majority rule", when they should be focusing on the specific event of majority vote for passage of a bill or resolution.) And as far as I can determine, the presence of several other antimajoritarian features should not impinge on the Framers' estimation of the propriety, or not, of an antimajoritarian threshold for passage. In fact, it can easily be argued that precisely because there were so many other veto points, another one was unnecessary. Madison's Federalist 58 defense of a simple majority for a Senate quorum (even after he proposed a two-thirds majority quorum and was defeated!) would seem to support this notion. (Also, in a comment on your critique of the Geoghegan Op-ed, Matt Jarvis, citing Federalist 10, says "Majority rule is, to Madison, the "republican principle." It's the bedrock of the whole enterprise. Minority factions are not a problem because he PRESUMES majority rule." So there's that, too.
ReplyDeleteIf I had to bet on it getting past the judiciary's distaste for wading into legislative authority and political matters, I'd put my money on you guys. But in rereading this argument several times, and comparing it to other, weaker arguments (like the Geoghegan one you critiqued), I'm confident that the merits of the case are not so easily dismissed as you, Koger, and Smith maintain.
dammit. my first comment completely vanished. oh well, here it is again (this part goes first):
ReplyDeleteHere are some of my thoughts on the issue:
If the threshold for passage of a bill, nomination, or resolution (that is not a treaty, conviction, expulsion, veto override, or constitutional amendment) were not presumed by either chamber of Congress to be a simple majority, why then did they not, ever, write a rule establishing such a threshold?
Further, if Congressional precedent carries the narrow but significant weight that some impute to it (Gerhardt, Fisk and Chemerinsky, and others, and I partially agree with them), should not then the historical record of Congress—it has in fact passed most bills by "bare majority rule" (regardless of debate procedure) from its inception, and for 223 years since—strongly support the sense that Congress and its members have from the outset considered majority vote to be its clear, natural threshold for passing legislation? If it weren't, again, they woulda made a rule.
And a modest proposal: if neither the Constitution nor the houses of Congress in fact presume a simple majority to be the threshold of passage, then the Senate could pass a new rule stating that passage now requires, say, 33 votes. And the House could pass a new rule stating that passage now requires 175 votes. This would be wholly constitutional.
To the contrary, I find that Section III, D-F of Bondurant's argument (in the pdf link I sent, not the Complaint, which is oddly less robust) thoroughly and convincingly presents the evidence that both the Framers and the first Senators, many of whom had been intimately involved in debating and refining the proposed Constitution during the Federal Convention, in fact did assume a "bare majority rule" requirement for passage. And that that assumption resides within the Constitution. That evidence includes citations of conflicts with the Quorum Clause, the Presentment Clauses, and the "casting vote" clause; Supreme Court ruling on the interpretation of Article I, Section 7 (Ballin); on point debates in the Federal Convention; and Hamilton and Madison, Federalist 22, 58, and 75.
Now, an assumption may not be enough, however forcefully proven. And the second part of the argument—that the filibuster has made cloture and passage functionally equivalent, and therefore unconstitutional—faces a much higher hurdle, which Bondurant has more difficulty clearing.
The filibuster, while egregiously abused, is not now preventing ALL senate business from getting done.
Can something become unconstitutional after it has grown to a certain degree?
If in fact the filibuster were being used to block every single senate bill for a significant period of time, say, an entire congressional session, then a lower judge and eventually the justices might be moved to consider that a wealth of evidence, both extraconstitutional (from the Constitutional Convention and the pens of the Framers) and Constitutional (plain implications in the Quorum, Presentment, and casting vote clauses), should lead them to recognize in the Constitution an assumption of a requirement of "bare majority rule" for the passage of bills.
(continued in next comment)
(damnX2. pls. delete dupe if u like.)
DeleteWouldn't the Senate be very likely to ignore any court ruling on the filibuster (or any other matter of Senate rules, like holds or committee assignments or the like), thus giving the courts good reason to avoid ruling on such matters?
ReplyDeleteHere's the rub. Rule V says that the rules continue from Congress-to-Congress, and Rule XXII says that it takes 2/3 (i.e., 67 votes) to invoke cloture on a *change to the rules.* Thus, it actually takes 67 - not just 60 - votes to end a filibuster on a rule change. Now, it's absolutely true that a majority of Senators could invoke a parliamentary ruling from the chair that would be upheld on appeal by a majority vote of the Senate. Those are the rules. The question in Common Cause's lawsuit is seeking a declaratory judgment that such rules are, in fact, unconstitutional. Finally, as the Supreme Court ruled in the Ballin case, Senate rules are not immune from judicial review just because Article I, Section 5 grants the Senate the right to adopt it's own rules. In fact, Rule V, combined with Rule XXII (the filibuster rule) prevent the Senate from adopting their own rules. The only way around that is a) a Court order that the rule is constitutional or b) a parliamentary 'nuclear option' style maneuver where the Senate interally decides the rules are unconstitutional. Either way - it's a question of constitutionality, and it's the court's job to "say what the law is" when it comes to interpreteting the Constitution. See Marbury v. Madison.
ReplyDelete