Majority rule and the filibuster

The Founders who wrote the Constitution believed strongly that, in governing America, the majority should rule.  But they did create a United States Senate in which members representing a minority of the nation’s people could thwart the will of the majority.  With each state, regardless of size, having equal seats in the Senate, the stage was set for frustration of the majority’s will, from time to time.

Later, along came an idea that had never occurred to the Founders – the filibuster in the Senate, enhancing the power and temptation of a minority to obstruct.  Debate then could string out, stoppable only by a super-majority, making it even harder for a simple majority to prevail.  And today, little business actually gets done in the Senate because the filibuster is almost routinely operating to stall the enactment of new legislation.

That history lies behind a strong new effort, among many liberal-oriented advocacy groups and constitutional scholars, to seek to abolish or at least significantly change the Senate’s Rule XXII – the filibuster rule.   The most ambitious part of this effort is a straightforward goal: somehow, to kill the filibuster by having it declared unconstitutional.

There is, however, a basic problem with that approach: the courts, which might seem to be the best place to pursue the filibuster’s elimination, are almost certainly going to continue to be unwilling even to consider that idea.  In fact, the U.S. Supreme Court thought so little of an earlier version of that constitutional challenge that it refused, without comment, to consider it.  That was seven years ago, but there is no reason to think that the idea would get a hearing in court today.

That situation means, then, that Rule XXII will fall only if the Senate itself gets rid of it, either by scuttling it or by making a formal declaration that it is unconstitutional, which would end it.   While the courts generally have the last word on when the Constitution has been violated, the Senate may take its own position on such a question.  Asking it to do that is precisely what some activists are preparing to do.

Their plan is to have Vice President Harris, in her role as presiding officer of the Senate, proclaim – in answer to a “point of order” by a Senator — that the filibuster rule offends the Constitution because it contradicts majority rule and runs directly contrary to several clauses in the Constitution.

Such a ruling would be met with an attempt to have the full Senate overrule her on the point, setting off a historic debate.  But it would take a majority vote of the Senate to overrule her, and the activists do not think there would be such a majority.   Of course, that is the vulnerable part of their plan: how many Democrats could be kept behind the plan, when it seems clear that at least a few Democrats do not want to scuttle the filibuster?

This constitutional challenge has appeal to critics because the only available alternatives – asking the Senate to act directly to amend or repeal Rule XXII – would require approval by a two-thirds vote (67 votes, if all members voted), and that seems definitely out of reach in a chamber now divided 50-50 between the parties.

Vice President Harris would not be prepared to so rule unless President Biden were fully behind such a maneuver.  At present, there is no sign that Biden is at that point, even though the fate of much of his ambitious legislative agenda may well depend upon removing the obstacle of the filibuster.

Before examining the specific arguments for nullifying the filibuster as unconstitutional, let’s look into both the history of the device and how it works today.

Contrary to what some Americans appear to believe, the Senate filibuster is nowhere mentioned in the Constitution, and it was not a part of Senate procedure in the beginning.  A practice of having “extended debate,” with its tendency to frustrate legislation even if a measure had majority support, did not begin until 1806.  There actually was no formal rule to protect filibusters until 1917.

And the practice did not actually stall the Senate with any frequency, until about the middle of the 20^th Century, when it became a regular feature of Southern Senators’ resistance to civil rights bills.   The Civil Rights Act of 1974, the extreme example, was held up by a filibuster for 74 days (it did eventually pass).

But, in modern times, what has really slowed down the Senate was a key vote the Senate took in 1975 to change Rule XXII.  While voting to reduce from 67 to 60 the votes needed to end a filibuster, the Senate also decided to allow filibusters to continue – in silence — by deciding that it would set aside any bill faced with such opposition and move on to consider other bills in the meantime.

In practice, that meant the end of the “talking filibuster,” the prolonged floor speeches by opponents of bills.  All that an opponent need to do to stall a piece of legislation is to let the leadership know that the measure is targeted for opposition. The result, of course, was to simply defeat legislation without any effort by its opponents.

The predictable effect has occurred: since that rule change, the frequency of filibusters has greatly accelerated and the Senate’s productivity has fallen noticeably.

Today, according to critics, virtually any legislation that does not have unanimous or near-unanimous support can only be passed if there are at least 60 votes for it to close down a silent filibuster.

Majority rule is now rare enough to be almost a fantasy (except for nominations to government jobs or to the federal courts, because the Senate in 2013 and 2017 took those procedures out from under Rule XXII.  That’s how President Trump got three Justices approved for the Supreme Court in a little more than three years.)

The constitutional arguments

If a constitutional reckoning, on the floor of the Senate, is in reality the only workable way now to challenge the filibuster rule, what are the arguments for striking it down?

First, a basic argument from history.

The Founders, meeting in Philadelphia in 1787 to write a new Constitution, were well aware of the failings of the former Articles of Confederation, including the absence of majority rule under that framework.  Every state, large or small, had only one vote in the Confederation Congress, and no bill could be passed unless it had support from nine of the 13 states (veto power thus was lodged in just 4 states).  Moreover, the Articles themselves could only be amended by unanimous vote of all 13.

There was no doubt, in the Philadelphia gathering, that the new Constitution would seek to enshrine majority rule.  The delegates said that’s what they were doing, and that goal became part of the argument for states to ratify the document.  The famous Federalist Papers, promoting the document, spoke glowingly of the concept.  Alexander Hamilton, for example, wrote that allowing a minority to block the will of a majority was to “destroy the energy of government.”

One basic problem with this historic argument, of course, is that the Founders did not provide for majority rule when they created a new Senate in Article I of the Constitution.  They gave each state two seats in the Senate, regardless of their population.  Because the people never do sort themselves equally among the states, a majority in the Senate can be achieved by 51 senators from a group of states that together do not contain a majority of the people and thus can thwart majority will.

With the filibuster rule added later to the mix in the Senate, now requiring 60 votes to shut off debate, the balance of power is shifted to any group of 41 senators who are bent on stalling or shutting down the legislative process.  So, in a constitutional sense, one may argue that the Senate of today is, to a very substantial degree, run by minority rule.

Guaranteeing the equality of the states in the Senate, of course, was deemed necessary, in 1787, to persuade the smaller states to ratify the Constitution.  And that equality is firmly fixed in the text itself and by one of the most fundamental understandings of the text – that is, the guaranteed equality of the states in the constitutional design.

Article V assures that no state can be denied its equal seating in the Senate without its consent.  As a result, the states’ membership in the Senate will be effectively insulated from any amendment, ever.  What state would give that up voluntarily?  Article IV, providing for admission of new states to the Union, has been interpreted by Congress since 1796 and by the Supreme Court since 1845 to mean that each new state is guaranteed equal status on its admission.

The equality doctrine originated in the “Great Compromise” (sometimes called the “Connecticut Compromise”) of 1787.  Under that deal, the Founders provided that the House of Representatives’ membership would be divided up among the states based on their population, and the states each got equal membership in the Senate.  Those arrangements are now firmly embedded in the Constitution.

Even so, the opponents of the filibuster rule are now, cleverly, making an argument that the rule is unconstitutional in part because, they say, it undermines the Great Compromise itself.  Senators holding only 41 of the 100 seats can now filibuster to prevent virtually any bill from coming to a vote, overriding the votes of Senators holding 59 seats; where, the critics ask, is the equality of the states in that?

The filibuster challengers also look to other constitutional language, harking back to the Founders’ desire to assure some degree of majority rule, for support for their cause.

One such provision is the so-called “quorum clause,” a part of Article I.  It gives the majority of each house’s membership the power to conduct business: it takes a simple majority to constitute a “quorum.”  Critics of the filibuster ask: how can a majority do business when a minority – or, today, just a single objecting Senator — can bring the Senate to a halt?

Another provision is the so-called “presentment clause,” also in Article I.    That provides that most legislation can be passed by a simple majority in each house.  Only if a President vetoes such a measure is a greater vote – two-thirds in each house – required to override the veto and make that bill a law.  How can it be, the critics ask, that the Senate by merely writing one of its own rules can require more than a simple majority to pass a bill?  That, they say, is exactly what Rule XXII imposes.

The Constitution does give the Senate the authority to write its own rules – but not in defiance of the Constitution itself, the reform advocates argue.

Still another provision in Article I gives the Vice President a right to cast a vote on bills in the Senate, but only if the Senators are “evenly divided” – that is, if there is no simple majority.  That, too, is a sign of the Founders’ intention that a majority ordinarily should prevail.

While there are parts of the Constitution that require more than a simple majority in one or both houses to act, those are clearly spelled out in the text and the opponents of the filibuster say their inclusion shows that the Founders knew how to require super-majorities and chose to have only those.  Those provisions require:

** A two-thirds vote in both houses to propose any constitutional amendment.

** A two-thirds vote in both houses to override a presidential veto.

** A two-thirds vote in both houses to prevent a disabled President from resuming office if he or she insists that the disability has ended.

** A two-thirds vote in the Senate to convict and remove from office a President after impeachment by a majority of the House.

** A two-thirds vote in either chamber to expel a member.

** A two-thirds vote in the Senate to ratify a treaty.

Whatever arguments the challengers to Rule XXII embrace, they are undertaking an effort that runs up against more than a century of Senate habit and against a deep chasm of polarization between the two parties, both making agreement and compromise difficult in the extreme.0