The Constitutional Status of the Filibuster
Kevin Drum says filibustering is unconstitutional:
In any case, I continue to think the filibuster is unconstitutional. The fact that certain types of legislation (treaties, constitutional amendments, veto overrides, etc.) specifically require supermajority votes is evidence that the framers assumed that ordinary legislation should be passed by majority vote. Assumed it so strongly, in fact, that they never seriously considered the possibility that they had to spell it out.
Until I get the Supreme Court to agree with me, of course, this doesn’t matter. But I still think it’s true.
I think the real point here is that it doesn’t matter what the Supreme Court thinks. The Supreme Court can’t rule on questions of Senate procedure. This is what the “political question” doctrine was built for. But the flipside of that is that, as I’ve said before, if Joe Biden, Harry Reid, and 49 other Senators want to change the filibuster rule or deem a health plan eligible for reconciliation or whatever else they like nobody can stop them. The Senate itself is the only adjudicator of its own procedures. The reason majorities hesitate to empower themselves this way is that even though the filibuster is against the transient interests of the current majority it serves the individual interests of each senator by increasing the worth of his vote.
I would say the key piece of evidence for Kevin’s interpretation of this is that the initial draft of the rules allowed for cloture on majority vote. Then during an 1806 revision of the rulebook, the cloture motion was scrapped on the grounds that it was never used and therefore unnecessary. Nobody was contemplating the creation of a supermajority requirement.
Indeed, the whole idea that the cloture rule constitutes a supermajority requirement is quite novel. Consider this account of the “court packing” fight in William Edward Leuchtenburg’s The Supreme Court Reborn:
“The best guessing here,” wrote Raymond Clapper in his column, “is that the new . . . court enlargement bill . . . will get thru,” while the Washington bureau of the Portland Press Herald in rock-ribbed Republican Maine reported: “General opinion is the substitute will pass, and sooner than expected, since votes enough to pass it seem apparent, and the opposition cannot filibuster forever.”
Privately, FDR’s foes conceded that these reckonings were correct. On July 7, the morose Republican Senator Hiram Johnson informed a friend: “They have the votes at present to put it over.” A confidential tally sheet set numbers on that conclusion. In an estimate prepared for the leading lobbyist against the Court plan, Frank Gannett, the Nebraska Senator Edward Burke revealed that if the roll were call right away, FDR would wind up the winner, 52-44.
Of course the court packing plan was ultimately defeated. But it was defeated because the tide turned and opponents had a majority on their side. The filibuster was seen as a potentially useful delaying tactic, but not a means by which the fight could be won.
32 Responses to “The Constitutional Status of the Filibuster”
Register
RSSLogin
Yglesias Tweets
Topic Cloud
ArchivesBlog RollAbout Matt YglesiasContact Me
Donate
August 5th, 2009 at 5:39 pm
Although majority could do it, Senate rules are set up so that minority can effectively shut down the government. I don’t know the outcome of this, but my gut says it wouldn’t be good for health care reform or the Democrats.
Using budget reconciliation seems more plausible, with the same caveat. As Mark Schmitt has noted, the way the Byrd rule works, certain aspects of the bill could only be addressed once the structure was in place.
I like the idea of an assault on the filibuster but in practice I think it can only be done with minority consent. From a public advocacy perspective the best thing to do is probably try to educate enough Dems so that next time they are in the minority they will give up filibuster–a long shot, I know, but we gotta try.
August 5th, 2009 at 5:48 pm
I’m guessing he had a different opinion when George Bush was president.
August 5th, 2009 at 5:50 pm
Jesus Christ. There is nothing in the Senate rules requiring cloture for every bill.
August 5th, 2009 at 6:04 pm
MY: Even though the filibuster is against the transient interests of the current majority it serves the individual interests of each senator by increasing the worth of his vote.
How is this possible? Does the filibuster increase the worth of the entire U.S. Senate?
The filibuster increases the worth of the votes of Senators who are needed to get a bill 60 votes rather than 50 or 51 votes. Any Senator could chose to be one of those Senators, and demand concessions to not vote against cloture. In actual practice, however, only a small handful of conservative Dems are choosing to be those Senators. Thus, the 50 most liberal Democrats are rendered less powerful, and the 10 most conservative Democrats are rendered much more powerful by the same amount. The total amount of power is constant, so the increase in power of individual Senators like Landrieu and Nelson is much greater than the decrease in power of the individuals who comprise the great majority of the Democrats. This is probably why Matt notices Ben Nelson’s empowerment by the filibuster but doesn’t notice the disempowerment of most of the rest of Democratic Senators.
August 5th, 2009 at 6:28 pm
“As Mark Schmitt has noted…”
Mark Schmitt is the stupidest fucking person on planet Earth on this particular topic.
August 5th, 2009 at 6:31 pm
This is the second post where you have implicitly endorsed a logical fallacy (the first being the diary that accused Chris Bowers of a logical fallacy). The other instances listed (treaties, veto overrides, and constitutional amendments) are special cases that are mentioned because of their uniqueness, not because they are only different in the threshold required. The constitution also says that each house can make its own rules.
August 5th, 2009 at 6:39 pm
“I think the real point here is that it doesn’t matter what the Supreme Court thinks. The Supreme Court can’t rule on questions of Senate procedure.”
Quite true.
The Constitution is explicit on the matter.
“Indeed, the whole idea that the cloture rule constitutes a supermajority requirement is quite novel.”
Yup. This has only been in place since Bob Byrd marshaled a majority in support of supermajorities in the 1970’s.
“as I’ve said before, if Joe Biden, Harry Reid, and 49 other Senators want to change the filibuster rule or deem a health plan eligible for reconciliation or whatever else they like nobody can stop them.”
Not only can a majority do such a thing, but a majority should do such a thing.
The Byrd rule makes the Federal government unworkable. This has severe negative implications for citizens of the nation the Federal government is unable to effectively govern.
—–
Drum is wrong about the current cloture rule being unconstitutional, but it sure as hell is aconstitutional. And it brings about incredibly poor policy outcomes to boot.
August 5th, 2009 at 6:45 pm
“How is this possible? Does the filibuster increase the worth of the entire U.S. Senate?”
The current Senate rules empower individual “squeaky wheel” Senators while disempowering majorities.
This has negative implications for the public, but can work out quite well for individual Senators looking to build fiefdoms.
August 5th, 2009 at 6:48 pm
I think the real point here is that it doesn’t matter what the Supreme Court thinks. The Supreme Court can’t rule on questions of Senate procedure.
I don’t think that’s true, certainly not as broadly as you’ve put it. “Each House may determine the rules of its proceedings.” Sure, but what if there’s a rule that female members cannot introduce legislation?
Or consider something closer to the filibuster. What if the Senate changed its rules so that a unanimous vote is required to pass a law? Would that be consistent with the Constitutional text?
We know, presumably, that the Senate can’t enact a rule allowing it to ratify treaties by a simple majority. So clearly the rules are not unlimited in their scope.
August 5th, 2009 at 7:17 pm
I’m guessing he had a different opinion when George Bush was president.
spotatl, if your talking about Matt Yglesias, your guess is incorrect. He argued on many occasions during the whole up-or-down-vote/nuclear option debate when Republicans held the majority that Dems should just let the Republicans get rid of the rule. He’s been completely consistent on this subject from what I’ve seen.
He also happens to be right. The current filibuster rule is idiotic. Instead of 60 votes being required to break a filibuster, 40 should be required to maintain the filibuster. What would still allow the minority to roll out the filibuster for the occasional fight when they are really pissed off but would stop this nonsense that 60 votes are required to pass ANYTHING.
August 5th, 2009 at 7:19 pm
“what if there’s a rule that female members cannot introduce legislation? … what if the Senate changed its rules so that a unanimous vote is required to pass a law?”
A majority of the Senate (or House) is absolutely sovereign within that body.
They can operate by any nonsensical set of rules that they prefer. A majority of the Senate can require each Senator to play a waltz on a tuba prior to each vote, if that’s how the majority wants to conduct business.
“We know, presumably, that the Senate can’t enact a rule allowing it to ratify treaties by a simple majority. So clearly the rules are not unlimited in their scope.”
That’s a different topic. A majority of the Senate is absolutely sovereign within that body, but the requirements for ratifying treaties are not only an internal Senate matter.
In other words, the Senate’s sovereignty ends at the Senate doors, so they can’t ratify a treaty without a two thirds vote, no matter what their internal rules are.
August 5th, 2009 at 7:33 pm
“what if the Senate changed its rules so that a unanimous vote is required to pass a law?”
To expand slightly:
A majority of the Senate could indeed pass a rule requiring a unanimous vote to pass any law. They could then turn around the following day and rescind that rule when a majority wanted to pass a law without a unanimous vote.
The way it works is that the Senate rules exist only with the forbearance of a majority. The rules can never constrain a majority against their will.
To take this to its logical extreme, the Senate could pass a rule saying that the rules could only be changed by a unanimous vote. This would be perfectly legitimate. They could then turn around the following day and abolish that rule by majority vote, even though they’d just said it takes a unanimous vote to change the rules. And that would also be perfectly legitimate.
In short, the rules of the Senate (or House) are always only a temporary convenience for a majority to conduct business in a manner which they prefer.
August 5th, 2009 at 7:44 pm
umm, I’m not sure that Mark Schmitt actually is the stupidest effing guy on the planet, but leaving that aside, my big question is, for Matthew and everyone else: what happens when the Dems issue the ruling that the supermajority cloture requirement is unconstitutional and the Reps then proceed to vote no on all the various procedural votes that usually operate on unanimous consent, effectively shutting down the Senate? Do the Dems wait them out? Is this not a realistic possibility?
I’m willing to be convinced on the nuclear option, but so far I haven’t seen anyone, including Matthew, answer this question.
Is the answer just: “screw it, it’s the right thing to do?” I could maybe accept this answer, if I saw somebody articulating the actual outcome of the nuclear option.
August 5th, 2009 at 7:51 pm
” I’m not sure that Mark Schmitt actually is the stupidest effing guy on the planet”
On this topic he is. And by a country mile.
“my big question is, for Matthew and everyone else: what happens when the Dems issue the ruling that the supermajority cloture requirement is unconstitutional and the Reps then proceed to vote no on all the various procedural votes that usually operate on unanimous consent”
If the GOP tried such a maneuver, a majority of the Senate would be forced to constrain the ability of individual Senators to stop the work of the Senate. They can do this with a simple majority, just as they can pass a healthcare bill with a simple majority.
Again, a majority of the Senate is absolutely sovereign within that body. You can see how a majority of the House solves similar problems of individually recalcitrant members with zero fuss and muss.
The GOP Senate faction would be unlikely to push things that far, since they have zero interest in temporarily shutting the Senate down at the cost of permanently losing other forms of their “Senatorial prerogative”.
If this particular game gets played out to the end, we win either way the GOP decides to handle it.
August 5th, 2009 at 7:54 pm
To effect progressive change, we need to add states to the union – Puerto Rico, Washington, DC. If you then combine the Dakotas, and split California in half, you will begin to get a second chamber whose members are reflective of the country as a whole.
August 5th, 2009 at 8:19 pm
I’m with Anderson’s comment (#9). The ability to make rules isn’t completely unbounded. The Senate could not constitutionally make a rule prohibiting black Senators from casting votes, for example.
At the very least, Drum’s argument is worth making.
August 5th, 2009 at 8:39 pm
There may be some constitutional limits on Senate rules. I’d suggest these as possible examples: a rule which gave some Senators more votes than others; a rule which gave the Vice President a vote even when the Senate wasn’t equally divided; or a rule establishing a presiding officer other than the Chief Justice in a presidential impeachment trial.
But Drum’s “evidence that the framers assumed that ordinary legislation should be passed by majority vote” surely isn’t going to cut it. They may have assumed a lot of things, but the question is what they actually wrote into the Constitution and got ratified. And that particularly proposition was not.
August 6th, 2009 at 12:33 am
I’m skeptical that we can talk Senators into doing something that would alter what seems to be working very well for enough of them.
August 6th, 2009 at 2:18 am
Let’s get real here folks.
The Republicans are not using the filibuster to ride roughshod over the Democrats. Rather, the Democrats are using the Republicans’ filibuster as an excuse for the defeat of liberal programs.
If the Democrats themselves actually favored those programs, they would be bringing all sorts of pressure to bear upon the Republicans – like actually making them stand up and read the phone book, etc..
It’s a nice deal for the Democrats. They get all sorts of support from liberals without actually delivering in return.
August 6th, 2009 at 7:49 am
What Duncan and Petey are saying is right. The rules, bad as they are, have always contemplated a majorities ability to wait out and break a filibuster.
If 50 Democrats aren’t willing to break a filibuster for something as central to Democratic politics as health care reform, I don’t think there’s much hope you’ll find 50 Democrats willing to abolish the filibuster for the sake of parliamentary good order.
The filibuster reform that I would advocate is closing the gap between the Hollywood conception of the filibuster and the reality of it. I’m no parliamentarian, but something along the lines of:
- No cloture vote shall be required to move legislation unless a senator recognized by the chair opposes it (call such senator the “Filibusterer”)
- The Filibusterer can only make a cloture vote necessary so long as he/she holds the floor
- The Filibusterer can only hold the floor if (a) the Filibusterer remains physically present on the Senate floor, (b) the Filibusterer stands continuously without assistance, (c) the Filibusterer speaks continuously,
(d) the Filibusterer does not yield to any other Senator for any reason whatsoever
- Should the Filibusterer lose the floor at any time or should the requisite number of senators carry a cloture vote, the Senate will move immediately to considering the bill for final passage
August 6th, 2009 at 8:03 am
“my big question is, for Matthew and everyone else: what happens when the Dems issue the ruling that the supermajority cloture requirement is unconstitutional and the Reps then proceed to vote no on all the various procedural votes that usually operate on unanimous consent”
To expand slightly:
Any procedural vote that currently requires unanimous consent can also be accomplished by majority vote.
Unanimous consent (like supermajority cloture) is a rule that stands only with the forbearance of the majority.
In the House, a member cannot disrupt House business because a majority vote can move business forward.
In practice, after the Senate passed healthcare by majority vote, the GOP would likely protest by disrupting Senate business by refusing unanimous consent. However, this would be a bluff only. After letting them have their way for a day or two, Harry Reid would inform them that unanimous consent procedures would be overcome by majority vote if they did not desist. At that point, the GOP would face a choice between backing down or seeing the entire edifice of “Senatorial Privilege” crumble to majority rule. Given that choice, the GOP would likely back down, but if they didn’t, Senate business would then proceed under majority rule.
—–
All of this seems moot, given that the WH has no interest in passing healthcare without GOP votes, for reasons that have absolutely nothing to do with Senate rules.
August 6th, 2009 at 8:24 am
“The rules, bad as they are, have always contemplated a majorities ability to wait out and break a filibuster.”
If I may attempt to correct the distinguished Senator from Southpaw:
This was true prior to the 1970’s Bob Byrd “reforms” of the cloture rule.
But since the 1970’s, the only means for a majority to break a filibuster is for a majority to repeal the Byrd rule. Under the Byrd rule, there is no longer any way for a majority to wait out a filibuster.
The GOP is using the Byrd rule pretty much as it was intended. The Byrd rule invented the aconstitutional three fifths supermajority for everything but “reconciliation” votes. And the only way out of the trap is for a majority to repeal the Byrd rule.
A majority cannot be constrained by supermajority requirement Senate rules unless that majority consents to those supermajority requirement Senate rules. And since it was enacted in the 1970’s, no majority has stood up against the Byrd rule, which a majority could do at any time it chooses.
The Byrd rule essentially broke the Senate, and it’s up to a majority of the Senate to fix the problem. Healthcare is an ideal moment to do so, both for healthcare, and for the future of the nation’s governance.
(Tangentially, I think it’s somewhat amusing that the only times the three fifths measure has appeared in Federal governance has been the Byrd rule and the representational value of slaves. If you’ve got a disastrously bad idea for Federal government, some inner voice must tell you that three fifths is the answer.)
August 6th, 2009 at 10:23 am
I could be mistaken, but isn’t the threat of a filibuster what holds up legislation, rather than a filibuster itself? When’s the last time we actually saw a party sustain a filibuster?
Why not try to bring the bill to the floor and force the minority to actually filibuster against it? More Americans will be sympathetic to the case that senators should be allowed to vote on the bill, than would actually support the bill. A bill might not be terribly popular, but a minority preventing it from being voted upon would be less popular.
Let them stand up and read from a phone book and force Ben Nelson to vote to allow that to continue.
August 6th, 2009 at 10:39 am
“I could be mistaken, but isn’t the threat of a filibuster what holds up legislation, rather than a filibuster itself? … Why not try to bring the bill to the floor and force the minority to actually filibuster against it?”
You are indeed mistaken.
Under the Byrd rule, it takes three fifths to hold a vote on anything other than “reconciliation” legislation.
This has been the case since the Byrd rule was instituted in the 1970’s, and will continue to be the case until a majority of the Senate stands against the Byrd rule.
August 6th, 2009 at 10:49 am
Thank you for clearing that up, Petey. So the minority does not actually have to filibuster, they simply need to vote against a bill coming to the floor?
Still, part of my point holds. A “just let us vote” argument can be more sympathetic than the underlying bill. Also, force Snowe, Collins, and the Blue Dogs to actually cast a vote to not let the Senate vote on a bill. Force them to take the risk of being an obstuctionist in practice, not just in theory.
August 6th, 2009 at 2:10 pm
Uh, Petey? According to its definition Subject matter – The Byrd rule may be invoked only against reconciliation bills, amendments thereto, and reconciliation conference reports.
August 6th, 2009 at 2:12 pm
The link.
August 7th, 2009 at 1:18 pm
“Uh, Petey? According to its definition Subject matter – The Byrd rule may be invoked only against reconciliation bills, amendments thereto, and reconciliation conference reports.”
The Byrd rule created “reconciliation”.
The entire concept of “reconciliation” and “non-reconciliation” legislation did not exist (and could not have existed) prior to the Byrd rule.
August 7th, 2009 at 11:16 pm
Senate traditions are about the equality of the states they represent and the equality of the senators themselves. The House is the temple of majority rules; the Senate is a counterweight to that idea, and is supposed to be slow and stupid.
They used to be worse procedurally. The filibuster has been around since forever. Until 1917 there NO way to end one other than exhaustion. After the failure of many of Woodrow Wilson’s foreign policy efforts, the Senate decided to introduce a vote of 2/3 to kill a filibuster.
Byrd era move to 3/5 is actually an improvement.
And the cloture vote is procedural — once you break the filibuster you vote on final passage of the bill, when a majority is what wins.
Petey got it right by noting that the Dem’s are using the GOP games as an excuse to avoid doing what they do not want to do. Better Dems would lead to less of this garbage.
August 8th, 2009 at 10:55 am
“Byrd era move to 3/5 is actually an improvement.”
I strongly disagree.
Prior to the Byrd era, the only way to prevent a majority vote on legislation was to shut down Senate business. This put an actual price on denying cloture and ensured that most issues would be settled by majority vote.
In the current era, there is no price on denying cloture, so a 3/5 supermajority has become the de facto standard for almost every Senate vote.
The Byrd rule institutionalized a routine supermajority standard in a way the Senate had never seen before.
August 12th, 2009 at 4:48 pm
[...] at his Mother Jones blog last week, and Matt Yglesias was quick to point out to Drum that “The Supreme Court can’t rule on questions of Senate procedure.” This is what the “political question” doctrine was [...]
August 12th, 2009 at 4:48 pm
[...] at his Mother Jones blog last week, and Matt Yglesias was quick to point out to Drum that “The Supreme Court can’t rule on questions of Senate procedure.” This is what the “political question” doctrine was [...]