Is the Filibuster Constitutional?
With the help of the President, Democrats in Congress were able to pass historic healthcare-reform legislation in spite of—and thanks to—the significant structural obstacles presented by the Senate’s arcane parliamentary rules. After the passage of the bill, the current political climate appears to require sixty votes for the passage of any major legislation, a practice which many argue is unsustainable.
In Is The Filibuster Constitutional?, Professors Josh Chafetz and Michael Gerhardt debate the constitutionality of the Senate’s cloture rules by looking to the history of those rules in the United States and elsewhere. Professor Chafetz argues that the cloture rules represent an unconstitutional principle of entrenchment and highlights the absurdity by analogizing to a hypothetical rule requiring a supermajority to unseat an incumbent senator, which would surely not be tolerated. Chafetz concludes that historical practice fails to justify obstructionist tactics and that any constitutionally conscientious senator has a duty to reject the filibuster as it currently operates.
Professor Gerhardt attributes the Senate’s behavior to the lack of a majority committed to curtailing abuses of Senate procedure. He argues that the weaknesses of the traditional arguments against the filibuster underscore the filibuster’s inherent constitutionality. Gerhardt points out that a majority of Senate seats is never subject to election at the same time and that the Constitution does not forbid, but instead expressly permits, the Senate to draft internal procedures. Failing to find an anti-entrenchment principle implied in the constitutional scheme, Gerhardt groups the filibuster with other Senate traditions—such as holds and bitter partisanship—and finds that the solution to unsatisfactory behavior in the legislature is, and always has been, accountability at the ballot box.
The Filibuster and the Supermajoritarian Difficulty
Suppose that the Senate, using its combined powers to “Judge...the Elections...of its own Members,” U.S. Const. art. I, § 5, cl. 1, and to “determine the Rules of its Proceedings,” id., cl. 2, adopted the following rule: “In any election to this body in which a current Senator seeks reelection, the current Senator shall be deemed reelected unless sixty percent or more of the duly qualified voters cast their votes for another candidate.” Would this rule be constitutional?
The Seventeenth Amendment provides that “the Senate... shall be composed of two Senators from each State, elected by the people thereof,” and that “[t]he electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures,” but it does not say that the candidate with the most votes must win. U.S. Const. amend. XVII. Nor does anything in Article I—or anywhere else in the Constitution, for that matter—prescribe majority rule for congressional elections.
Yet it seems clear that this hypothetical supermajoritarian rule would violate some of our most deeply held constitutional values. Our Constitution, written in the name of “We the People,” cannot countenance this sort of self-entrenchment by incumbents. That is to say, we understand the concept of an election of representatives to include within it a structural principle of majoritarianism. Our elected representatives cannot create a new voting rule that substantially entrenches the status quo against change. For them to do so would be for them no longer to be “elected by the people.”
My contention in this Debate is that the Senate filibuster, as it currently operates, is strikingly similar to the hypothetical rule described above. Just as we must understand the word “elected” in the Seventeenth Amendment to contain a principle of majoritarianism for election to Congress, we must also understand the word “passed” in Article I, Section 7 to contain a principle of majoritarianism for legislating in Congress.
I should emphasize at the outset that I am interested not simply in the formal rules governing Senate debate but in the way that the filibuster in fact operates in the modern Senate. Moreover, I do not argue that any procedural device that delays the implementation of majority will at any given moment is unconstitutional. All procedural requirements delay the immediate implementation of majority will. Structural majoritarianism is a matter of degree, and precise lines between acceptable delays in implementing majority will and unacceptable defiance of majority will are hard to draw. Nevertheless, a constitutionally conscientious Senator is obligated to try.
The formal rules governing the filibuster are rather simple: a filibuster occurs when a Senator or group of Senators takes advantage of the Senate tradition of unlimited debate in order to delay or obstruct a measure. The only way to end debate and force a vote on most measures before the Senate is to invoke cloture. Senate Rule XXII(2) provides that, if sixteen Senators sign a cloture petition, then on the next business day, the presiding officer will ask whether “it [is] the sense of the Senate that the debate shall be brought to a close?” Standing Rules of the Senate, R. XXII(2), as reprinted in S. Doc. No. 106-15, at 15-16 (2000). The cloture motion itself is not debatable; therefore, a vote will be taken immediately. If three-fifths of the Senators “duly sworn and chosen” vote “yes,” then no business is in order other than the matter on which cloture has been invoked, and debate on that matter is limited to thirty hours, at the end of which a vote must be taken. Id. There is one exception: invoking cloture on a motion to amend the Senate rules requires two-thirds of the Senators present and voting rather than three-fifths of the Senators sworn and chosen. Id. Moreover, because the Senate, unlike the House, is considered a “continuing body,” see, e.g., Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 512 (1975) (“the House, unlike the Senate, is not a continuing body”), its rules never expire. But see Aaron-Andrew P. Bruhl, Burying the “Continuing Body” Theory of the Senate, 95 Iowa L. Rev. (forthcoming 2010), available at http://ssrn.com/abstract=1427456 (presenting a number of arguments against the “continuing body” theory). Senate Rule XXII exists in perpetuity, unless it is amended—and amending it would almost certainly involve invoking cloture, which would require a two-thirds vote.
This formalist account of Senate procedure, however, must be supplemented with an understanding of how the filibuster has actually operated in recent years. Simply put, cloture has now effectively become a requirement for passage of any significant measure. Even a casual glance at the history of cloture motions makes this apparent. When the cloture motion was first introduced into Senate rules in 1917, it required a two-thirds vote to pass. See Catherine Fisk & Erwin Chemerinsky, The Filibuster, 49 Stan. L. Rev. 181, 198 (1997). From the 66th Congress (1919–1920) to the 91st Congress (1969–1970), there were never more than seven cloture motions filed in a single Congress, and cloture was never invoked more than three times. U.S. Senate, Senate Action on Cloture Motions, http://www.senate.gov/pagelayout/reference/cloture_motions/clotureCounts.htm (last visited Apr. 1, 2010). It can hardly be said that no contentious legislation came up during this fifty-year period—indeed, it is worth noting that even though Democrats never had a filibuster-proof majority during the 73rd Congress (1933–1934), that Congress managed to pass much of the major legislation of the First New Deal without a single cloture petition having been filed. See id.
A rise in filibusters in the early 1970s led to the amendment that gave Rule XXII its present form. From the 94th Congress (1975–1976) to the 102nd Congress (1991–1992), the number of cloture petitions filed ranged from twenty-three to fifty-nine, and cloture was never invoked more than twenty-two times in a Congress. Id. The number increased between the 103rd Congress (1993–1994) and the 109th Congress (2005–2006), with between sixty-two and eighty-two motions filed and cloture invoked between nine and thirty-four times. Id. And then came the 110th Congress (2007–2008): a whopping 139 cloture motions were filed, with cloture invoked sixty-one times. The 111th Congress is on course for even higher numbers—as of this writing, there have been eighty-two cloture motions filed, and cloture has been invoked forty-four times. Id.
A number of factors have contributed to the increased use of filibusters, including changes to procedural mechanisms (the creation of separate legislative “tracks” has allowed other Senate business to continue while one matter is being filibustered, thus lowering the cost of a filibuster), see Barry Friedman & Andrew D. Martin, A One-Track Senate, N.Y. Times, Mar. 10, 2010, at A27; institutional culture (a decline in senatorial bonhomie has increased the willingness of Senators to engage in obstructionism), see Thomas E. Mann & Norman J. Ornstein, The Broken Branch: How Congress Is Failing America and How to Get It Back on Track 146-48 (2006); and the national political map (partisan realignment has made it more difficult to attract bipartisan support for anything), see generally Earl Black & Merle Black, The Rise of Southern Republicans (2002).
Regardless of the precise constellation of causes of this increase in filibusters, two things are clear: the filibuster is no longer reserved only for issues of unusual importance, nor is it used simply to extend debate on an issue. A Senator who intends to vote against final passage of a bill need no longer separately justify her decision to vote against cloture. As a functional matter, it can now be said that it requires sixty votes to pass a piece of legislation in the Senate—or, as Roy Edroso eloquently put it on a Village Voice blog the day after Republican Scott Brown won a special election to fill Ted Kennedy’s Massachusetts Senate seat, “Scott Brown Wins Mass. Race, Giving GOP 41-59 Majority in the Senate.” Posting of Roy Edroso to Runnin’ Scared, Scott Brown Wins Mass. Race, Giving GOP 41-59 Majority in the Senate, http://blogs.villagevoice.com/runninscared/archives/2010/01/scott_brown_win.php (Jan. 20, 2010); see also David R. Mayhew, Supermajority Rule in the U.S. Senate, 36 PS: Pol. Sci. & Pol. 31, 31 (2003) (noting the widespread perception that sixty votes is the threshold for Senate passage).
The question, then, is this: is a constitutionally conscientious Senator obligated to reject a system in which a supermajority is required to pass a bill and an even larger supermajority is required to alter that supermajority requirement? I think the answer is “yes.” As Jed Rubenfeld has persuasively argued, “[w]hat it means for a bill to ‘pass’ the House or Senate is not open for definition by the House or Senate. It is constitutionally fixed by the implicit majority-rule meaning of ‘passed.’” Jed Rubenfeld, Rights of Passage: Majority Rule in Congress, 46 Duke L.J. 73, 83 (1996). Of course, the Constitution itself imposes supermajority requirements in some cases. See Michael J. Gerhardt, The Constitutionality of the Filibuster, 21 Const. Comment. 445, 455 n.38 (2004) (listing the seven situations in which the Constitution requires a supermajority vote). But where the Constitution does not specify otherwise, the word “passed”—like the word “elected”—should be understood to prescribe majority rule. It would be odd to operate with a majoritarian assumption when voting for representatives but not when those representatives themselves vote. After all, if Congress can require sixty votes to alter the status quo, then why not ninety-nine? Why can it not declare its own legislation unrepealable? Surely that sort of entrenchment of legislation is every bit as antithetical to popular sovereignty as the entrenchment of legislators in the hypothetical at the beginning of this Opening Statement.
Supporters of the filibuster may, at this point, turn to history. They will say that the United States has a long history of unlimited debate and that this history supports the constitutionality of the filibuster. See Gerhardt, supra, at 451-55. But of course today’s filibuster is not about unlimited debate—indeed, it is not about debate at all. It is simply about permanent minority obstruction. And that has a somewhat lesser history. The use of unlimited debate solely for the purposes of obstruction was almost unknown in the British House of Commons until Charles Stewart Parnell was elected in 1875. Parnell, “who employed parliamentary obstruction to block all government business so that Irish reform would be effected,” can be understood as “the real founder of wilful or conscious obstruction” in the House of Commons. Geddes W. Rutherford, Some Aspects of Parliamentary Obstruction, 22 Sewanee Rev. 166, 174 (1914); see also 1 Josef Redlich, The Procedure of the House of Commons 138-40 (A. Ernest Steinthal trans., 1908). The reaction to this new method of obstruction was swift: in 1882, the House of Commons adopted by majority vote (indeed, by a slim majority of 304 to 260) a resolution introduced by William Gladstone giving the Speaker the authority to inform the House “that [a] subject has been adequately discussed.” 137 H.C. Jour. 505 (Nov. 10, 1882). Thereafter, a majority could vote to end debate and force a vote on the issue in question. Id. In Britain, once the power of unlimited debate came to be used for long-term obstruction, it was quickly taken away.
In the United States, too, the history is not unambiguously pro-filibuster. Jefferson, the great parliamentarian of the early Republic and President of the Senate from 1797 to 1801, wrote, “No one is to speak impertinently or beside the question, superfluously, or tediously.” Thomas Jefferson, A Manual of Parliamentary Practice for the Use of the Senate in the United States 27 (Gov’t Printing Office 1993) (1801). Indeed, the rules adopted by the First Senate provided that the presiding officer could call a member to order, at which point the member “shall sit down.” 1 Sen. J. 12, 13 (1789). True, dilatory tactics were first used in 1790, but only to delay a vote long enough that an ill Senator—who happened to be the decisive vote—could participate. See Fisk & Chemerinsky, supra, at 187-88 (describing the incident). This was a use of the filibuster in the service of majoritarianism, not in derogation of it. Over the next sixteen years, the “previous question” motion provided for in the First Senate’s rules, see 1 Sen. J. 12, 13 (1789), was used on four occasions to end debate. Richard R. Beeman, Unlimited Debate in the Senate: The First Phase, 83 Pol. Sci. Q. 419, 421 (1968). When the “previous question” motion was abolished in 1806, it was because of “the belief that the rule’s infrequent use made it unnecessary,” not because of any desire to allow unlimited minority obstruction. Id.
The great nineteenth-century champion of the use of unlimited debate for obstructionist purposes was none other than John C. Calhoun. See id. at 421-31; Fisk & Chemerinsky, supra, at 189-92. And as Fisk and Chemerinsky note, the nineteenth century’s smaller volume of legislation allowed the majority to wait out filibusters so that “almost every filibustered measure before 1880 was eventually passed.” Fisk & Chemerinsky, supra, at 195. When that ceased to be the case, the Senate adopted the first cloture rule in 1917. Id. at 198. For most of the twentieth century, of course, the filibuster was largely used to obstruct civil rights legislation. Id. at 199. John C. Calhoun and Strom Thurmond are indeed precedents for the power of a minority to indefinitely obstruct legislation in the Senate—but are they precedents that filibuster proponents are proud to claim, or does their precedential value partake more of Plessy than of Brown?
Constitutional structure cannot support the filibuster as it exists today any more than it can support the hypothetical rule with which this Opening Statement began. And history establishes no unambiguous right to obstruct. Of course, these observations raise at least as many questions as they answer. All procedural rules delay the implementation of majority will—how much delay is too much? All rulemaking has at least something of an entrenching effect—how much entrenchment is too much? These questions do not admit of easy answers, and they are certainly not suitable for judicial resolution. See Josh Chafetz, Democracy’s Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions 57-59 (2007) (arguing that each chamber’s internal rules are generally nonjusticiable). But the fact that courts underenforce these constitutional norms makes it all the more important for constitutionally conscientious members of Congress to take them very seriously. See Paul Brest, The Conscientious Legislator’s Guide to Constitutional Interpretation, 27 Stan. L. Rev. 585, 586 (1975) (arguing that judicial restraint in addressing certain constitutional issues does not “suggest that the legislature should exercise restraint in assessing the constitutionality of its own product”); Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 Harv. L. Rev. 1212, 1240 (1978) (“[T]he legislature is permitted to refine... [certain constitutional] notions beyond the capacity of the judiciary to do so.”). Senators will have to draw their own lines and devise their own remedies. But whatever line they draw, the filibuster as practiced today must be on the wrong side.
The Filibuster and the Conscientious Senate
My friend Professor Chafetz never disappoints, and his Opening Statement is as thoughtful and novel a critique of the filibuster as any I have read. His principal argument is that the filibuster has been increasingly used in violation of Article I, Section 7’s “principle of majoritarianism for legislating in Congress.” While I do not agree with this argument, I do believe that the lawmaking process within the Senate has become frustrating–albeit not because of the filibuster or something unconstitutional. The problem is that the Senate lacks a majority genuinely committed to challenging abuses of Senate procedures and to ruling on many issues.
Professor Chafetz acknowledges but does not dawdle over either of the conventional arguments against the constitutionality of the filibuster. Nevertheless, they are worth examining briefly because understanding why they are wrong underscores the constitutionality of the filibuster. The first objection is that the filibuster as a delaying mechanism is unconstitutional because it is not specifically authorized by the Constitution. (I am not sure whether Professor Chafetz agrees with this objection because he does not argue that any procedural device that delays the implementation of majority will at any given moment is unconstitutional.) The first problem with this objection is that Article I, Section 5 expressly vests the House and the Senate each with the authority to “determine the Rules of its Proceedings.” U.S. Const., art. I, § 5, cl. 2. The Framers were not averse to establishing specific procedural requirements in the House or Senate (such as quorum requirements for doing business or requirements that senators be on oath or affirmation in impeachment trials), but in Section 5 they specified no limitations on the procedures that the House or Senate may devise for its proceedings. See id. This Section plainly grants to the Senate plenary authority to devise procedures for internal governance, and the filibuster is a rule for debate. Second, historical practices overwhelmingly support the filibuster’s constitutionality. See generally Michael J. Gerhardt, The Constitutionality of the Filibuster, 21 Const. Comm. 445, 451-55 (2004). Professor Chafetz acknowledges that the filibuster, in one form or another, has been a feature of the Senate since 1790. It is one of many countermajoritarian procedures, including unanimous-consent requirements governing what comes to the floor for consideration in the Senate.
The second conventional objection to the filibuster is that Senate Rule XXII, which allows a filibuster of a motion to amend the Rule and requires a supermajority to end any such filibuster, Standing Rules of the Senate, R. XXII, as reprinted in S. Doc. No. 106-15, at 15-17 (2000), is unconstitutional. The argument (about which I take Professor Chafetz to be agnostic) is that Rule XXII violates an anti-entrenchment principle implied in Article I that bars a present majority from binding the hands of a future one to act as it pleases with respect to any legislative matter.
There is, however, no such principle. To begin with, Article I says nothing about, much less anything against, entrenchment, and Senate Rule XXII’s procedures for amending Rule XXII are consistent with the plenary authority expressly given to the Senate to determine the rules for its proceedings. Second, historical practices amply uphold Rule XXII’s entrenchment. The Senate has consistently stood behind this Rule and consistently required that efforts to amend it be done in accordance with the Senate’s rules, including the supermajority voting requirements set forth therein. Third, Rule XXII is one of many standing rules in the Senate that have become entrenched because of the Senate’s structure. Article I, Section 3 has structured the Senate “so that one third may be chosen every second Year.” U.S. Const., art. I, § 3, cl. 2. The Senate has been designed, in other words, so that every election cycle, only a third of its seats are up for election. This design makes the Senate unique among legislatures as a “continuing body” because two-thirds of its members carry their terms over from one legislative session to the next. Indeed, in dicta, the Supreme Court has said as much on three separate occasions.
The anti-entrenchment principle presumes that entrenchment is illegal because it prevents a newly elected majority from adopting whatever rules it prefers, but in the Senate there never is a majority of seats subject to election at any one time. There is thus no group in the Senate in a position analogous to the full membership of the House, in which every two years there is, by design, a genuinely new majority that is elected. Professor Chafetz’s concern is with majority rule, but if a majority changes in the Senate it is because of the outcomes of elections involving only one-third of the seats. I know of no constitutional principle investing a third of a legislative body with special power to remake the body itself.
This brings us to Professor Chafetz’s principal concern that “cloture has now effectively become a requirement for passage of any significant measure.” Professor Chafetz is right that the filibuster has been increasingly used to obstruct legislative action, but it is a mistake to infer any constitutional violation from this obstruction. First, filibusters are not just directed at bills. Many are directed at judicial and other nominations. Professor Chafetz is relying on the language of Article I, Section 7 for the basis of the “principle of majoritarianism,” but this language only pertains to bills or resolutions requiring presidential signatures—not to presidential nominations. One must look elsewhere for textual support to constitutionalize majority rule on nominations, but there is none.
Second, Article I, Section 7 speaks only to what may happen once a bill reaches the floor of the House or Senate. It says nothing about the process through which a bill—or any other matter that may be filibustered—may reach the Senate floor. Article I, Section 5 obviously governs that process, while Article I, Section 7 governs something different—the procedures after passage of a bill in the House or Senate.
Third, the filibuster is one of many Senate procedures that may preclude final floor action. When committees reject nominations or committee chairs refuse to schedule hearings or votes on nominations or other legislative matters, their decisions are effectively final. Yet none of these procedures violates Article I, Section 7. The fact that a bill or nomination is stymied through the tactical use of procedures does not mean that Article I, Section 7 is violated: it means the Senate has followed its own rules.
Nor does Article I establish a time limit by which a matter must be resolved in the Senate. It is impossible to square a “principle of majoritarianism” with the fact that sometimes bills or nominations make it through committee with little or no time left for the Senate to act. I doubt Professor Chafetz is arguing that this principle of majoritarianism requires that a bill or nomination must come to the Senate floor even if no time is left for the Senate to act. American history is replete with bills dying in this manner.
Fourth, majoritarianism is not a fixed constitutional principle. In upholding a state constitutional and statutory requirement that certain changes not be made in the state constitution unless approved by at least sixty percent of the voters in a referendum election, the Supreme Court declared, “Certainly any departure from strict majority rule gives disproportionate power to the minority. But, there is nothing in the language of the Constitution, our history, or our cases that requires that a majority always prevail on every issue.” Gordon v. Lance, 403 U.S. 1, 6 (1971). This ruling underscores the fact that while there may be constitutional limits to the Senate’s internal rulemaking authority, mandatory majority rule is not one of them.
The deliberative process within the Senate is not, however, without problems. Among them is the two-track system for filibusters. I agree that silent filibusters—those that have the effect of deflecting business simply as a result of being threatened—are problematic. They are problematic because they obscure one of the most important checks on abuses of the filibuster: the political accountability of the members of the Senate. One cannot, or at least I will not, argue that there was anything noble in filibustering civil rights legislation in the 1950s and 1960s; however, at least those filibusters had to be above radar and the people making them were politically accountable. The two-track system provides the wrong incentives to senators: it allows them to obstruct Senate business but without paying much, if any, political cost for doing so.
Beyond silent filibusters, there are two other problems impeding majoritarianism in the Senate. One is the problem of holds. A longstanding practice of the Senate is the entitlement of each senator to ask the majority leader to place a temporary, anonymous hold on virtually any piece of legislative business headed to the floor. Such holds (sometimes done tag team by members of the opposition party) have been used to obstruct more than a few of President Obama’s nominations. This obstruction is often done merely to make the President or Senate Democrats look bad. It is, however, telling that once the Democrats challenged the holds and threatened filibusters against some judicial nominations, the latter were approved unanimously or nearly unanimously. (Two recent examples are the unanimous confirmations of Barbara Keenan to the Fourth Circuit and Rogeriee Thompson to the First Circuit.) An obvious difficulty with taming abusive holds is that the holds are done anonymously, so it is practically impossible to hold Senators politically accountable for abusing their hold privileges. It is up to Senators to keep each other honest in their deployment of holds.
Another, more important reason for obstruction in the Senate is the absence of a majority committed to ruling on everything. As reflected in the unanimous confirmations of Judges Keenan and Thompson, the votes of eleven Republican senators for President Obama’s jobs bill, and the support of nine Republican Senators for Justice Sonia Sotomayor’s confirmation, party fidelity does not invariably preclude the Senate from acting. But, in order for there to be obstruction, there has to be something to obstruct, and on many issues there is no working majority. In their 2006 study of the filibuster, Gregory Wawro and Eric Schickler suggested that “the great irony [is] that filibusters have become costless for the minority because the costs to the majority of engaging in wars of attrition have become prohibitively high.” Gregory J. Wawro & Eric Schickler, Filibuster: Obstruction and Lawmaking in the U.S. Senate 263 (2006). They concluded that
[t]he majority could fully clamp down on the minority as was done in the House over a century ago, but to do so would likely require a majority of senators to agree to give up the wellspring of their power by curtailing the right of recognition and other prerogatives. At this moment, an insufficient number of senators seem willing to start down the path that would lead to quotidian majority rule.
Id. at 281. The numbers within the Senate might sometimes fool us into thinking there is a majority disposed to rule. The fact that for the past year Democrats had sixty seats in the Senate and that Republicans had fifty-five seats from 2004–2006 did not ensure that in either period there was a majority committed or prepared to consistently ruling the Senate. Where there is a Senate majority determined to act, it is nearly impossible to stop, as recently demonstrated in the fact that the opposition of every Republican in the Senate did not prevent the passage of the Patient Protection and Affordable Care Act, Pub. L. No. 111-148 (2010). But sometimes neither party controls a majority of Senate seats, and sometimes there are no working majorities on certain issues. The Constitution cannot establish a majority where there is none.
The solution to this scenario is not judicial review or deviation from the rules in order to amend them but rather the electoral process. Using elections to hold public officials accountable and not changing the rules in the middle of the game are both among our longstanding traditions. While the upcoming mid-term elections might not change the Senate’s leadership, it is through such elections that the will to govern may be fortified or eroded.