Tuesday, January 4, 2011

Yes, The Filibuster Is Constitutional

The question of whether the filibuster is Constitutional is in the news again, with a piece by David RePass in the Atlantic arguing it is not.  I'll also point interested readers to an upcoming law review piece by Josh Hafetz called "The Unconstitutionality of the Filibuster." 

I'm going to just link back to a longer post I did a while ago, and give you here the short version of why I think the filibuster is perfectly constitutional.  Basically, it comes down to the "determine the rules" clause, which as I see it makes it pretty straightforward that Congress can arrange its business the way it wants, full stop (except, of course, when there's a explicit insistence on something, such as the supermajority vote in certain cases, or having a journal).  Moreover, in practical terms, I think that's exactly the correct way to do things.  Do those who believe the filibuster is unconstitutional really want the courts to step in and intervene?  If not, what does it mean to say that something is unconstitutional but beyond the reach of the courts?

Hafetz, to his credit, does take on the "determine the rules" clause in his piece.  He argues, however, that despite that clause a "determined and focused legislative majority must be able to get its way in a reasonable amount of time." His argument seems pretty weak to me, drawing on a hypothetical rule that would give incumbents a built-in numerical advantage for re-election, just as (he argues) the status quo has a built-in advantage of only needing 41%.  Would it be unconstitutional for the Senate to decide that everyone is re-elected unless their opponent receives 60% of the vote?  I'm not sure -- I don't know that the Senate's election judging power reaches that far.  But if it does, it doesn't strike me as self-evident that such a foolish procedure would be unconstitutional.  In fact, I believe that there are judicial retention elections that require a supermajority to throw the bums out.  I certainly wouldn't support such a thing for Members of Congress, but that doesn't mean that the Constitution forbids it.

Beyond that, it's important to realize that no legislature runs on pure majority rule.  Filibuster opponents object to supermajority requirements for passage, but well-placed minorities -- committee chairs, subcommitee chairs, majority party leaders -- have plenty of power to block measures that a majority of the chamber supports.  A legislature that simply allowed any Member the right to bring any measure to the floor for an up-and-down vote would be courting chaos.  It certainly wouldn't produce what Democratic supporters of reform want right now, which is a chamber more amenable to majority party control.

By the way, one final note on terminology.  RePass says that a "silent filibuster" is an oxymoron, but that's incorrect.  Hafetz is good on this: to filibuster is to delay in order to kill a measure, regardless of how it's done.  Thus RePass is wrong to say that "throughout the course of the 111th Congress, if a bill did not meet the approval of the minority bloc in the Senate, it was threatened with a filibuster."  What actually happened was that the minority party insisted on 60 for everything.  Therefore, absolutely every bill and nomination was met with a filibuster.  That was certainly new and important, and very different from the pre-1993 Senate.  But not, I don't think, unconstitutional.


  1. Democrats should be careful not to lose the narrative by claiming filibuster is unconstitutional as opposed to arguing it is not called for in the constitution. And the GOP shattered the record for using it. And if they want to play that way and block filibuster reform, fine, they will never pass another law again because the GOP will never get a supermajority. Also, why is their first order of business wasting time on symbolic votes they can't win instead of trying to fix stuff? Democrats should rip GOP and make them pay a political price for this.

  2. I think you're both right. When it comes to the Senate, "Constitutional" means whatever the majority of Senators (plus the Chair) says it means. There are very, very few rulings that I could see the Supreme Court taking up. Almost everything the Senate does would be a "political question" and remain untouched by the Court.

    If the Senate wants to say this or that is unconstitutional, that's their right. They can use any justification they want to change the rules. In the end, it's a meaningless question.

  3. So how far would you go? Could the Senate raise the zombie Articles of Confederation by having a rule requiring unanimity on all votes? Requiring supermajorities for regular legislation and appointments is, if not actually un-Constitutional, clearly contrary to the intent of the Founders.

  4. Yes. I would say that requiring a unanimous vote on everything not otherwise specified by the Constitution is within the Senate's power.

    "Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member."

    The Supreme Court has ruled on the qualifications clause (Exon v. Tiemann, Powell v. McCormack), but it's always been reluctant to take up questions of procedure. In those cases, "Constitutional" means whatever the Senate says it means.


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