The constitutionality of the filibuster.

Author:Gerhardt, Michael J.


Ignorance about the filibuster is almost universal. What many people might know about the filibuster is based on the climax of the classic film, Mr. Smith Goes to Washington, when Jimmy Stewart's character launches a filibuster to stop legislation that would usurp land on which he had hoped to build a special place for wayward boys. Some people might recall reading in history about the use of the filibuster to block civil rights legislation, while it is possible that most literate Americans are familiar with the recent denunciations of the filibusters that have blocked floor votes on six of President George W. Bush's judicial nominations as "outrageous," "disgraceful," "unconstitutional," and nothing short of a violation of basic principles of democratic government. (1) The denunciations fell short of their intended purpose of embarrassing the senators responsible for the filibusters, much less of motivating the full Senate to consider the Senate Majority Leader's proposal to amend Senate Rules to allow only a simple majority rather than three-fifths, or 60, senators to end a filibuster. (2) In the end, none of these fragmentary images nor the heated denunciations have enhanced popular understanding of the filibuster or the reasons for its longevity and constitutionality.

This Essay addresses the basic arguments for and against the constitutionality of the filibuster. In spite of the fact that intense debates over the constitutionality of the filibuster have been front page news and intensely divided the Senate throughout 2003, (3) very few legal scholars have devoted serious attention to the filibuster. (4) Determining the constitutionality of the filibuster is, however, by no means easy. It requires analyzing surprisingly complex problems within the legislative process. These include, inter alia, making sense of majority rule within the legislative process; the limits to the Senate's discretion in formulating internal rules; the Senate's unique structure and organization; and how the filibuster may alter the balance of power within the Senate and between the Senate and other institutions, including the presidency and the federal judiciary. Assessing the constitutionality of the filibuster further requires determining whether any Senate rule violates "anti-entrenchment," an ancient principle forbidding a past legislature from binding a current one to accept a rule or practice it otherwise would reject, because it allows a filibuster of a motion to amend Rule XXII (or any other Senate rule) that may be ended only by supermajority vote.

Finally, this Essay sketches some solutions for redressing problems with constitutional argumentation in, and theorizing about, the Senate. It calls attention to the need to measure and ensure the quality of discourse within the Senate on the filibuster and other constitutional matters. This Essay also develops a theory of nonjudicial precedent, that will clarify how much deference senators and perhaps other institutions (including courts) ought to give to the Senate's historical practices. (5)

Part I reviews the relatively straightforward textual, structural, and historical arguments supporting the constitutionality of the filibuster. The filibuster derives its principal authority from the Senate's express power to design its own procedural rules to govern its internal affairs and the Senate's consistent support for its constitutionality. It is also one of many counter-majoritarian features of the Senate, such as the committee system and unanimous consent requirements for agenda-setting. The same constitutional arguments support each of these practices. If these practices are constitutional, so is the filibuster. (6)

Part II addresses the strongest arguments against the constitutionality of the filibuster. First, the filibuster is arguably illegitimate, because it is not included among the supermajority voting requirements explicitly set forth in the Constitution. The second claim is that the filibuster allows a minority within the Senate to impede a president's nominating authority. The argument is that filibusters affect nominations and legislation differently. A nomination has no constituent parts, while a bill does. Thus, a filibuster can effectively nullify a nomination in its entirety, whereas filibustering legislation might affect only a portion of it. The third argument is that the filibuster can preclude the Senate from fulfilling its institutional obligations, including providing "Advice and Consent" on presidential nominations. The filibuster arguably impedes the entitlement of a majority of the Senate to render final votes on any matter it likes. The final argument against the filibuster is that Rule XXII, which requires at least two-thirds of the Senate to agree to end a filibuster against a motion to amend Rule XXII, is unconstitutional because it violates the basic principle that a current legislature may not tie the hands of a future one.

Each of these arguments is unpersuasive. (7) First, these arguments are circular. They each assume rather than establish the conclusion that majority rule is a fixed, constitutional principle within the Senate. Second, they cannot be reconciled with the constitutional structure as it was designed or has evolved. Third, Article I contains no explicit or implicit antientrenchment principle that would preclude the Senate from adopting procedural rules that carry over from one session to the next and may only be altered with supermajority approval.

In Part III, I address two problems with constitutional discourse within the Senate that became apparent in the recent filibuster debate. The first problem relates to the effectiveness of the institutional safeguards for ensuring the quality of such discourse. In the filibuster debate, the most effective of these turned out to be the Senate's rules, which condition some changes in the rules on supermajority approval. This requirement forces the side seeking change to make arguments that can appeal across party lines. This burden facilitates stability and order within the institution. Thus, the rules turn the status quo on a constitutional question into the Senate's default position in the absence of compelling argumentation to the contrary. Without such stabilizing rules, the Senate would be prone to a vicious cycle of payback in which a majority might adopt whatever rules maximized its power.

The second set of problems involves the failure of constitutional theorists and even senators to clarify the weight, if any, that the Senate ought to give nonjudicial precedent as a possible source of constitutional meaning. In fact, the Senate has formally approved the constitutionality of Rule XXII each time it has become before the Senate. Critics of the filibuster dismiss these precedents as irrelevant; on their view, the filibuster is not unlike segregation, for it is unconstitutional in spite of its longevity. By contrast, I suggest a narrow but significant role for historical practices as nonjudicial precedents. They help to channel (just as judicial precedents function within constitutional adjudication) and as to facilitate the same institutional ends as do judicial precedents, including consistency, stability, predictability, and reliance. While these functions do insulate a filibuster from challenge on constitutional or policy grounds, they place a burden on its challengers to make a compelling case for change. Those seeking reform need to show, in effect, that if the position of the parties within the legislative body were reversed, it would still be in the best interests of the institution to adopt change. No such case has yet been made.

The Essay concludes that the filibuster is best understood as a classic example of a nonreviewable, legislative constitutional judgment. (8) It has the same claim to constitutionality as many other countermajoritarian practices within the Senate, including the committee structure and unanimous consent requirements. The Constitution permits all of these practices, though it does not mandate any of them. These practices define the Senate's uniqueness as a political institution, particularly its historic commitments to various objectives--respecting the equality of its membership and to minority viewpoints; encouraging compromise on especially divisive matters; and facilitating stability, order, and collegiality in the long run. The principal checks on these practices, including the filibuster, are political. They include the Senate Rules, the need to maintain collegiality within the institution, and the political accountability of senators for their support of, or opposition to, specific filibusters.


    Senate Rule XXII, Part 2, provides in pertinent part that the question whether Senate debate "shall be brought to a close ... shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn--except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting--then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of." (9)

    Neither the Constitution nor the Senate Rules expressly mention, let alone mandate, the filibuster. Nevertheless, the best starting place for understanding the authority for the filibuster is article I of the Constitution, which governs and defines the powers of the Congress. Of particular importance is article I, section 5, which provides, "Each House [of the Congress] may determine the Rules of its Proceedings." (10) This section plainly authorizes the Senate to make procedural rules, including but not limited to the length of debate. This section further authorizes the Senate to delegate official responsibility to smaller units (and even...

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