Kevin Drum Thinks The Filibuster Is Unconstitutional

by Pejman Yousefzadeh on August 6, 2009

No surprise, given the fact that we now have a President and a Senate majority against whom/which the filibuster ought not to be used, by Drum’s lights. His reasoning behind his argument is as follows:

. . . 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.

There are several things wrong with this rationale:

1. “Ordinary legislation” still needs only to be passed by a majority vote. It takes a supermajority of three-fifths to cut off debate, but it does not take a supermajority for final passage. In other words, three-fifths may invoke cloture on a particular piece of legislation, but only a simple majority may vote for that legislation on final passage. Drum confuses the invocation of cloture with final passage, which is clumsy of him.

2. Drum’s argument concerning the intent of the Framers (how charming that all of the sudden, the intent of the Framers has become important; if only we can get Drum and others on the port side to admit that the original public meaning of the Constitution counts when considering the Constitution’s stance on an issue, we will really be cooking with gas. But at least, considering the intent of the Framers is progress!) appears to have been taken from Douglas Kmiec. However, even Kmiec admits that “constitutional silence does not preclude alternative voting rules, as those who supported adding a legislative supermajority for tax increases proposed some years back.” (Kmiec’s concerns regarding Senate Rule V are no longer an issue because Senate Rule V no longer has a two-thirds requirement.)

3. Drum tries to reject the supposition that the Supreme Court would turn back a challenge against the constitutionality of the filibuster on Art. II grounds. However, his stance fails. Consider Art. II, Sec. 5, in pertinent part:

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.

(Emphasis mine.) This passage alone makes it plainly Constitutional for the Senate to contemplate and use the filibuster. Indeed, it makes clear that the constitutionality of the filibuster is a closed question.

Nice try, Kevin.

  • Rich_Rostrom

    The filibuster has become a de facto supermajority requirement because the Senate does not actually require a filibuster to be carried out. Thus a cloture vote becomes a de facto passage vote.

    However, it remains merely a rule of the Senate, and can be abolished or suspended at any time by a majority vote. If cloture fails when there is a majority for passage, then there are some Senators who will vote for passage but not for suspension of filibuster. That is somewhat peculiar stance. In effect these Senators are sustaining the “filibuster” as a de facto supermajority requirement, perhaps because they want the same rule applied to a future hostile majority – but IMHO it's just as likely that they like it because it allows them to oppose without overtly voting no.

  • http://twitter.com/adamgardner Adam Gardner

    “Each House may determine the Rules of its Proceedings” must be read together with “The Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided.”

    Wouldn't the obvious implication be that a newly seated Senate has constitutional authority to establish its own rules by simple majority (unless they be _equally_ divided)?

    Clearly the filibuster (as the result of rules adopted) IS constitutional as you suggest, but I suggest that it is also constitutional to adopt rules preventing a filibuster by a simple majority vote (including a simple majority for cloture on the motion to adopt the new rules).

    The Congressional Research Service suggests that such may be the case, though it would break with “precedent” which certainly does not trump the Constitution. The following link is quite strangely hosted at the Department of State, but appears to be authentic: http://fpc.state.gov/documents/organization/454

    As to Rich's comment that some might vote against cloture though they support adoption of the motion under debate, I'm not so cynical. I think it much more likely that they would support the minority's right (especially a large minority) to attempt to convince others and/or speak debate. As Robert's Rules of Order 10th Edition puts it on page XLVII, “Each individual or subgroup has the right to make the maximum effort to have his, her, or its position declared the will of the assembly to the extent that can be tolerated in the interests of the entire body.” (No flames please, I know RONR does not apply to the Senate. The point is the principle – protection of minority rights, especially a large minority greater than 1/3.)

  • http://twitter.com/adamgardner Adam Gardner

    “Each House may determine the Rules of its Proceedings” must be read together with “The Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided.”

    Wouldn't the obvious implication be that a newly seated Senate has constitutional authority to establish its own rules by simple majority (unless they be _equally_ divided)?

    Clearly the filibuster (as the result of rules adopted) IS constitutional as you suggest, but I suggest that it is also constitutional to adopt rules preventing a filibuster by a simple majority vote (including a simple majority for cloture on the motion to adopt the new rules).

    The Congressional Research Service suggests that such may be the case, though it would break with “precedent” which certainly does not trump the Constitution. The following link is quite strangely hosted at the Department of State, but appears to be authentic: http://fpc.state.gov/documents/organization/454

    As to Rich's comment that some might vote against cloture though they support adoption of the motion under debate, I'm not so cynical. I think it much more likely that they would support the minority's right (especially a large minority) to attempt to convince others and/or speak debate. As Robert's Rules of Order 10th Edition puts it on page XLVII, “Each individual or subgroup has the right to make the maximum effort to have his, her, or its position declared the will of the assembly to the extent that can be tolerated in the interests of the entire body.” (No flames please, I know RONR does not apply to the Senate. The point is the principle – protection of minority rights, especially a large minority greater than 1/3.)

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