Is Filibustering Constitutional?

by Gregory Koger on August 20, 2009 · 7 comments

in Institutions,Legislative Politics,Senate procedure

One question about filibustering which comes up frequently is whether the Senate filibuster is “constitutional”. This came up in a 1994 New Yorker piece and a recent exchange between Kevin Drum and Matthew Yglesias (Aug. 5, Aug. 6). The gist of the argument is that the Constitution already spells out all the supermajority requirements for legislative action (2/3 for treaties, removal, expulsion, Constitutional amendments) so the 60-vote threshold for most legislation and nominations to clear the Senate is an additional and unintended hurdle in the process. As evidence, they cite the inclusion of a previous question motion in the initial Senate rules as proof that the Senate was “supposed” to be a majority rule chamber, with the deletion of this motion in 1806 representing an unintended embrace of filibustering (Harold Meyerson agrees with this reading of history).
Since serious people take this argument seriously, it is worth deconstructing.

1) Persistence is 9/10s of the (Constitutional) law
Any argument that “X is unconstitutional” where X has been with us since 1789 is probably not going to do well. Many features of modern politics are not explicitly provided for in the Constitution—political parties, primary elections, interest groups, the Daily Show, bloggers—and yet I don’t expect the Supreme Court to go Robert Bork on them. There is a profound case to be made that the influence filibustering has increased dramatically over the last fifty years, but this is an extraconstitutional development.
And, the historical record is more complex than the authors discuss. There was filibustering in the Continental Congress (e.g. a case of quorum-breaking in 1778) and Madison refers (favorably!) to quorum-breaking in the Virginia legislature during a discussion of quorum thresholds in the Constitutional Convention. That’s not to say that the authors of the Constitution generally approved of obstruction; just that they anticipated it would happen, sometimes with positive effects and sometimes with negative effects.

2) “Each House may determine the rules of its proceedings”
Drum and Yglesias note that a court case against the Senate filibuster would probably be struck down as a “political question.” But, more directly, the Constitution (Article 1, Sec. 5) delegates to each chamber the right to choose its own rules. Unless there is a credible case that obstruction is interfering with some other Constitutional mandate, Congress’s discretion over its rules appears absolute.
During the 1950s, reform-minded senators and interest groups promoted a more subtle Constitutional claim that their ability to “determine the rules” of the Senate were being blocked by the rules themselves. That is, since the rules carried over from one Congress to the next and set out a supermajority process (or, from 1949 to 1959, NO process) for overcoming a filibuster against cloture reform, their rights were truncated. The problem with this argument is that the reformers frequently managed to force a test vote on their argument in the Senate, and (until 1975) could not get a simple majority to agree with their contention that a simple majority should be able to revise the rules of the Senate at will.

3) Both chambers make extensive use of supermajority requirements…
The Senate cloture threshold is NOT the only supermajority threshold in Congress. Some examples: about half the bills that pass the House do so under “suspension of the rules,” which requires a two-thirds threshold in the House. House rules also allow for passing bills on the “Corrections Calendar” by a 3/5 vote, for waiving Calendar Wednesday by a 2/3 vote, and require a 3/5 majority to pass a tax increase. Senate rules require a supermajority to waive the Budget Act for many amendments, and (following a 1915 precedent) a two-thirds vote is required to suspend the rules.
So, if the cloture threshold is unconstitutional, each of these items could be the subject of litigation as well. And each round of litigation injects uncertainty into the legislative process, e.g. whether a bill has “really” become law or not.

4) …and a committee system
The Constitution says nothing about a Congressional committee system. Yet the committee system “kills” 70-90% of all bills in Congress, which never get a hearing or reported to the floor. If filibustering is open to a court case, why not the committee system? Perhaps the supporters of every bill that does not get out of committee can sue to ensure that their bill gets an up-or-down vote in each chamber or, failing that, is simply declared to be a law.

5) Where There’s a Will, There’s Majority Rule
As I mentioned in yesterday’s post, the notion that the Senate “backed into” allowing filibustering is a fallacy.
First, the House retained its previous question motion but there was MORE filibustering in the 19th century House than in the Senate, because the previous question was ineffective against dilatory motions and quorum-breaking.
Second, as Joe Cooper proved back in 1962, the previous question motion was not originally used to limit debate (See “The Previous Question: Its Status as a Precedent for Cloture,” Senate Document No. 104, 87th Congress, 2nd Session). So the existence of this motion in the 1789 Senate rules does NOT suggest that the early Senate was committed to majority rule.
Third, and most important, the previous question is NOT the only motion that can be used limit debate. There are any number of strategies that can be used to limit obstruction: in the final analysis, senators are only constrained by their imagination and their constituents’ taste for procedural reform. If senators are determined to restrict filibustering (which I would not recommend—more on this later) I personally think the simplest mechanism would be to revise the interpretation and use of the motion to suspend the rules. Or, they can adopt the Republicans (circa 2005) doublethink approach of “60 means 50”, i.e. the “true” threshold for cloture on some issues is simple majority. Or, as one senator suggested in 1915, any senator can move the previous question and—with the support of a determined majority—defeat the inevitable point of order that the Senate doesn’t have one. The means don’t matter: what senators lack—and have always lacked—is the desire to impose majority rule. But that is a topic for another post.

Next: Well, How Did I Get Here? The Rise of the 60-Vote Senate.

{ 5 comments }

Samuel Chase August 20, 2009 at 3:28 pm

In one of his books Bruce Ackerman speaks of the failure of the founders. That failure is that they did not understand party politics is a natural evolution from a republican form of government. He spoke of how this failure impacted the 1800 election and the constitutional development of the president, but I think it is also interesting to look at this context of the Senate and its rules. For example, would the founders, have they known party politics would be a natural evolution of a republican form of government, allowed temporary Senate partisans to set rules that were difficult for future generations to change? Probably not.

Matt Jarvis August 20, 2009 at 3:28 pm

Greg,
What about the second face of power argument? I’d say the “common wisdom” about civil rights in the 20th century is that the Southern filibuster in the Senate made it so that the chamber rarely even bothered to try to discuss the issue.

Of course, such an argument says “these people are your enemies, not me,” but does a filibuster have to happen for it to have been used? (In a sense, this brings us back full-circle to the modern, filibuster=hold=vague hint you don’t like a bill=filibuster world)

And the NASTY part, how would we measure what the Senate would have done if only “X” were true?

Matt Jarvis August 20, 2009 at 3:31 pm

Oh, and for what its’ worth, I’m firmly in the #2 camp, but also a fan of Dahl, so I really don’t care whether something is constitutional so much as I care that it is good. So, I’m looking forward to the defense of the filibuster on those grounds.

Greg Koger August 20, 2009 at 3:56 pm

there were a few “censored” civil rights filibusters, but by the 1940s there was a tendency to push for some sort of confrontation (e.g. a cloture vote) so civil rights advocates had a record of their effort and the Southerners’ filibuster. The broader point is well taken, however–there are many bills and nominations that have been stillborn due to the specter of obstruction.

Seth August 21, 2009 at 12:18 am

Greg, this may be a question for a later post, but how does filibuster use vary with partisan polarization? I wouldn’t be surprised to learn that the increasing use (or threat) of the filibuster derives from the increasingly cohesion and ideologically extremity of the minority party. But wouldn’t polarization simultaneously lead the majority party to toss aside Senate traditions in the name of advancing an agenda? I don’t get the impression that this has been happening.

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