Friday, March 8, 2013

Actual Condition

Law professor Adam Winkler has a TNR piece today arguing...well, he doesn't quite argue that the filibuster is unconstitutional, but goes through the case against it and sort of suggests that it is unconstitutional but that there's nothing that can be done about it outside of the Senate.

I agree with that last point: the courts aren't going to step in. But, once again: like it or not, there's really just no way to get around "Each house may determine the rule of its proceedings." If the Senate wants to run things so that bills and nominations need 60 votes, they can do it.

I'll also point out, as I tend to do when this discussion arises, that those who say that filibusters are unconstitutional because majorities must always rule are out to protect only certain majorities, not all majorities. That is, the entire committee system as well as the party system within both chambers of Congress mean that only a very small percentage of all bills get votes at all; a well-placed minority can spike any bill. Indeed, filibusters have been used precisely to force a Senate floor vote on some measure that the majority party doesn't want but that a majority of all Senators supports.

And while the current (post-1993, and especially post-2009) filibuster regime is dysfunctional, it's hardly the first time that a Congressional procedure has denied parties the ability to act. The House reforms of 1959-1975 were a reaction to the dictatorship of committees run by chairs who got their jobs strictly by seniority. That included the House Rules Committee, which could refuse to allow any bill the chair didn't like to advance to the floor, and in the short run there was nothing at all anyone could do about it.

So, yeah, reform the filibuster, but really, it's Constitutional. And no legislative body runs by actual majority rule; the question is the extent to which the majority party is the particular majority that gets to run things.


  1. Also worth mentioning in this connection are the "gag rules" of the 1830s and '40s that prevented Congress from considering anti-slavery petitions:

    These almost certainly violated the First Amendment ("it is the right of the people... to petition the government...."), but ultimately they were undone through politics and parliamentary maneuvers, for the same reason that the 60-vote Senate eventually will have to be.

  2. Jon: I asked this in one of the earlier filibuster posts, but I think it’s worth repeating.

    If you believe that either chamber of Congress can establish a supermajority threshold for passage of everything--60, 75, 90 votes, doesn’t matter--then do you also believe that they can, if they choose, alternatively establish a minority threshold for passage of everything? Forty votes? Thirty-five? Twenty-five?

    It seems patently absurd, but what would logically or legally prevent them from doing so?

    To me, what would logically prevent the establishment of minority thresholds is the recognition of the clear intent of the Framers that all measures except the 6 stated exceptions were to always be passed by a simple majority vote. The debate around the supermajority requirements in the Articles of Confederation, and the subsequent decisions not to bring them forward into the Constitution, prove that intent. (Notwithstanding their contemporaneous intent to construct a legislative system that did feature important antimajoritarian checks.)

    In fact, Congress has recognized, and mostly abided by, that concept of a 50%+1 threshold for passage since its inception.

    If that intention doesn’t in fact exist in the Constitution, what was it that established the majority vote norm Congress has observed for the past two centuries?

    And if that clear intention does exist in the Constitution, how is it that supermajority thresholds for passage (not simply for cloture or other pre-passage procedures), over and above those stated in the document, are Constitutional?

    To me, the “rule of its proceedings” clause is trumped by the clearly intended requirement of a 50%+1 threshold for passage of everything but the 6 enumerated supermajorities.

    1. I think the "determine the rule" clause is pretty straightforward. They get to run it how they want.

      I can imagine a situation in which they allowed several amendments to a base bill, with the one getting the most votes being adopted, no matter how far below a majority it was. (Base bill says we'll spend $0 on a program; amendments with different $ amounts each get separate votes). It's goofy, but it's constitutional.

  3. While they can run their own proceedings...

    ...It seems dubious they really do have a right to require a super-majority. Isn't the simple majority written into the constitution?

    1. Crissa: No, it's not. That's why I argue in my comment above that there does exist a clear intention. That's part of the argument of the current Common Cause lawsuit too. Jon's right, it really doesn't have a chance, but I think that's because the case for a supermajority requirement actually existing right now is weak. It really is a threshold for cloture, not for passage. It is only *tantamount* to a supermajority threshold. But I do think the other aspects of the argument, like clearing the "own proceedings" hurdle, are much stronger.


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