Absent the threat of a filibuster, health care reform would already have been enacted into law. Are filibusters constitutional?
By itself, the "filibuster" is nothing more than an attempt to wear down the opposition through endless debate. It is an annoying tactic whenever it is used by family members or workmates. When employed in the public realm it elevates the wishes of the minority over the rights of the majority.
What makes the use of the filibuster in the Senate possibly unconstitutional is Senate Rule XXII, (the "cloture" rule) which requires a three-fifths vote of all Senators to cut off debate. The cloture rule is contained in Senate Rule XXII.2, which provides in relevant part as follows:
2. Notwithstanding the provisions of rule II or rule IV or any other rule of the Senate, at any time a motion signed by sixteen Senators, to bring to a close the debate upon any measure, motion, other matter pending before the Senate, or the unfinished business, is presented to the Senate, the Presiding Officer, or clerk at the direction of the Presiding Officer, shall at once state the motion to the Senate, and one hour after the Senate meets on the following calendar day but one, he shall lay the motion before the Senate and direct that the clerk call the roll, and upon the ascertainment that a quorum is present, the Presiding Officer shall, without debate, submit to the Senate by a yea-and-nay vote the question:
"Is it the sense of the Senate that the debate shall be brought to a close?" And if that question 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.
The prerequisite of 60 votes to end a filibuster is supremely antidemocratic. In their report "Filibusters and Cloture in the Senate," Richard S. Beth and Stanley Bach of the Congressional Research Service describe the "profound and pervasive effect" of the filibuster.
The ability of Senators to engage in filibusters has a profound and pervasive effect on how the Senate conducts its business on the floor. In the face of a threatened filibuster, for example, the majority leader may decide not to call a bill up for floor consideration, or to defer calling it up if there are other, equally important bills that the Senate can consider and pass without undue delay. Similarly, the prospect of a filibuster can persuade a bill’s proponents to accept changes in the bill that they do not support, but that are necessary to prevent an actual filibuster.
The antidemocratic effect of the cloture rule is magnified by the fact that Senators are not chosen in a manner that is consistent with proportional representation. The population of the twenty smallest states in the United States is approximately 32 million people – about 10% of the population of the United States. (My reference is fact is the World Atlas, from which I calculated a quick estimate). The cloture rule potentially allows one-tenth of the people of the United States to block legislation desired by nine-tenths of its citizenry.
In 2003 Vikram David Amar authored an outstanding article on the constitutionality of the cloture rule entitled "With a Potential Supreme Court Nomination at Stake, Questions of The Filibuster's Constitutionality Linger." He also posted an excellent article discussing the constitutionality of the rule that requires a two-thirds vote of the Senate to amend the cloture rule. Below I set forth a few of the arguments that Amar discusses.
The text of the Constitution does not make any reference to either filibusters or cloture. However, a number of provisions of the Constitution are relevant to this discussion. Article I, Section 5, Clause 2 of the Constitution provides:
Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.
Note that this clause of the Constitution supports both sides of the argument over the constitutionality of the cloture rule. On the one hand, the Constitution vests the Senate with the power to "determine the rules of its proceedings." On the other hand, when the framers desired to require a supermajority of votes, they were perfectly capable of expressing that preference, as they do in that very sentence. In fact, the Constitution contains many other provisions where a supermajority is required before action may be taken. The Constitution requires that two-thirds of each House is necessary to override a veto. (Art. I, sec. 7, cl. 2 and cl. 3). When the House of Representatives chooses a President, the Constitution states that a quorum consists of representatives from two-thirds of the states, and when the Senate elects a Vice-President, a quorum consists of two-thirds of the Senators. (Art. II, sec. 1, cl. 3, and the 12th e Amendment). The Constitution provides that two-thirds of the Senate is necessary to ratify a treaty. (Art. II, sec. 2, cl. 2). The Constitution states that two-thirds of each House of Congress is necessary to propose amendments to the Constitution, which become effective upon ratification by three-fourths of the states. (Art. V). The Constitution specifies that a vote of two-thirds of each House is necessary to permit any person who had engaged in insurrection or rebellion against the United States to serve in public office. (14th Amendment). The Constitution requires that a two-thirds vote of both Houses is necessary to declare that President is unable to discharge the duties of the office. (25th Amendment).
My constitutional law students will quickly recognize that these constitutional provisions may be cited on both sides of the argument over the constitutionality of the cloture rule. Opponents of the rule will interpose the canon of construction known as expressio unius est exclusio alterius – "to say the one is to exclude the other" – more familiarly known as the negative implication. Under this form of argument, it is contended that since the framers required a supermajority in a number of instances, they must have intended that no supermajority be required in other instances – for example, to enact a bill into law. Surely the framers would have made provision for any requirement that has such a "profound and pervasive effect" on the passage of legislation, had they intended for such a requirement to exist.
The opposing canon of construction is called ejusdem generis, and under this interpretive principle the foregoing provisions of the Constitution requiring a two-thirds or three-fourths vote on certain matters should be taken as evidence that, as a general rule, the framers had no objection to supermajority requirements, and that the listing of these requirements in the Constitution is exemplary only – that Congress is free to adopt other supermajority requirements as it sees fit. While exclusio unius is exclusionary, ejusdem generis is inclusory.
The other significant element is tradition, but that cuts both ways as well. It is true that the filibuster and the cloture rule enjoy a long tradition, but in recent years the filibuster has been employed in a widespread and indiscriminate fashion. Instead of being an exception it is rapidly becoming the rule. It is as if the Senate has decided to rewrite the Constitution to require a 60 percent vote for the passage of any legislation.
The bedrock principle of democracy is that all persons are created equal. In matters of policy – where the constitutional rights of individuals or minorities are not at stake – the majority of people should have their way simply because they are the majority. To say that the minority has the right to block legislation is to accord more value to the wishes of each member of the minority than to each member of the majority. For that reason, in my opinion the "three-fifths clause" of Senate Rule XXII requiring 60 votes to cut off debate is unconstitutional.
Visit Professor Huhn's website on health care financing reform for links to information about proposed legislation, studies and reports, public agencies, and private organizations concerned with this issue. You may also wish to visit his website on Constitutional Law.
{ 6 comments… read them below or add one }
"In matters of policy… the majority of people should have their way simply because they are the majority."
It seems the arguments for and against the constitutionality of the filibuster don't clearly resolve themselves. In the end, you appeal to some sense of what is more "democratic" in order to conclude against constitutionality. Yet the existence of the Senate itself would seem to imply that the framers of the constitution disagreed with your assessment of what is "democratic"; or at least, they held that what you call "antidemocratic effects" do have an important place in the national government. The greater per capita representation given to smaller states in the Senate, while possibly antidemocratic, is without question constitutional. I find it curious then that you would rest the unconstitutionality of the filibuster on its "antidemocratic" nature. I believe your arguments only justify the conclusion that the filibuster is undesirable; to say that it is unconstitutional, based on what you've presented, is unwarranted.
As a sidenote, in this particular instance, the filibuster seems to be playing a much more democratic role than you suggest it generally does. Polling in the last few months has regularly, with a few exceptions, shown a majority of the population opposes the reforms under consideration in Congress. The spread between those opposed and those in support has steadily grown wider, and is currently around 56-38 in opposition. Interestingly, the "antidemocratic" filibuster has ensured, so far, a democratic outcome! A minority of Senators who happen to agree with a considerable majority of the general population on this issue have been able to keep the majority of Senators from enacting legislation that the majority of the general population opposes. If we accept your statement that, "In matters of policy… the majority of people should have their way simply because they are the majority," then the filibuster in this instance has actually preserved the democratic will of the people.
Scott makes an interesting point and it seems to me that the filibuster is a tool that probably ensures democratic outcomes more often than it delays them. A Senator who simply uses the filibuster to irritate the opposition or throw a wrench in the works regarding legislation that the majority (of citizens, not legislators) supports probably wouldn't last past the next election, while a Senator who uses the filibuster to delay unpopular legislation does so knowing the tactic will garner press that will improve his chances at re-election while at the same time giving the public opportunity to contact their own legislators or otherwise voice their concerns. In effect, the legislator is working to prevent an elitist class from governing without regard to the will of the people. But maybe the professor means "democratic" only in regard to the ruling class of legislators?
Kudos to Scott and Larry for their observation that the threat of a filibuster, at least in this case, appears to be consistent with the will of the majority and thus more "democratic" than if legislation opposed by a clear majority had become law, as advocated by the Professor. This observation does not, however, address the constitutional point raised by the Professor.
Since the Professor opines that the present cloture rule is unconstitutional, perhaps he can tell us who has standing to bring such a claim. Is this even a "case or controversy" over which the federal courts would have jurisidiction? Or is this not a "political question" that calls for the courts to abstain?
The Professor claims that, since Senators are not elected proportionately, the Senate is an antidemocratic institution. But this statement ignores the fact that each state is a separate Sovereign. Giving each State an equal number of votes is hardly antidemocratic. It is, on the other hand, consistent with federalism. (Remember also, that until the passage of the 17th Amendment, Senators were appointed by the legislators of their respective states, which suggests that the founders intended the Senate to promote federalism.)
Legislation is thwarted on a regular basis. Why single out the cloture rule for attack? Do the "people" have a Constitutional right to the passage of health care legislation?
If the rule now appears to be unwise, the Senate can change it. We do not need to make a Constitutional case out of a self-imposed limitation to the passage of legislation.
The longer I live the more I appreciate the founding fathers and the writing of the constitution. Some terrific points were made by Scott, larry & Quid, so I will expand on a few of them.
The fact of disproportional representation in the Senate is not an unintended consequence. It is there by design. It protects states from being dominated by the larger ones. It is brilliant. We were never intended to be a democracy, we are an unapologetic republic. I prefer this to being 'suburbs' of New York and California. This will become increasingly important to Ohioans as we lose population, at least proportionally.
The "filibuster" might have once meant wearing down the opposition through endless debate. When was the last time that a Senator argued late into the night, or read the phone book or whatever. Now you just move on to other Senate business. To me, this seems to lack some of the honor and commitment of filibusters past.
My annoyance with the tactic during judicial confirmations has been replaced by a comfort with the status quo and an appreciation of its wisdom. Its funny how we only complain when it keeps us from getting our way.
When the constitution gives the Senate the right to set its own rules, it makes it unconstitutional for any other group, including the Supreme Court, to set the Senate's rules.
In the end whatever makes it more difficult to pass legislation, probably serves us best. In addition to the problems created by the 17th amendment, the 12th amendment changed the way that we elected the Vice-President. The Vice-President was supposed to be the person finishing second in the Presidential election. The Vice-President only real authority is as the President of The Senate. Imagine the level of cooperation that was expected if the President's main rival ran the Senate. Gridlock was part of the design. The Senate was never intended to rubber stamp the President's agenda.
Dear Scott, larry d, Quidpro, and Dave,
Each of you express cogent and forceful arguments invoking federalism and separation of powers – each of which I cheerfully concede are core constitutional principles – in support of the general idea that the framers supported the concept of clogging the legislative process.
But none of you has addressed the precise issue presented in the posting: the constitutionality of the cloture rule. I contend that the requirement of the three-fifths vote in the Senate to cut off debate is, in fact, contrary to the principle of federalism. Whether or not the framers believed that the states are sovereign (they did not use that word – that was in the Articles of Confederation and is noticeably absent from the Constitution, which describes the United States as "a more perfect union"), they certainly believed that the states were to have equal representation in the Senate, and the three-fifths rule derogates that principal of equality among the states.
Nor does the principle of Separation of Powers lend any support to your position. The cloture rule does not in any way add to or subtract from the power of the executive and judicial branches of government, and it has no effect on the system of checks and balances among the three branches.
The filibuster rule must stand or fall on its own merits. There is nothing in the text of the Constitution to justify its adoption, any more than it would be justified to adopt a legislative rule stating that a bill cannot become a law unless three-fourths of the Senate concurs, or to enact a statute providing that the Vice-President must also approve legislation before it becomes a law.
Quidpro raises important and difficult points about standing, jurisdiction, and justiciability. I know that other constitutional scholars have discussed these points, and I have not researched this, but off the top of my pointy little head I don't think that any of these doctrines should serve as a barrier to getting into court. Any Senator on the losing end of a cloture vote should have standing to challenge the rule. The legal injury that the Senator incurs is that he or she was prevented from either bringing legislation to the floor or from securing a vote upon it. I can think of no other reason besides standing why this would not be a case or controversy (the issue is not moot, it is not unripe, it would not be like asking for an advisory opinion, nor is it a collusive suit). Finally, while Professor V. Amar stated that this would probably be considered a political question, I am not so sure. In Baker v. Carr the Court stated that political questions arise by virtue of the doctrine of Separation of Powers – that it is inappropriate for the Court to intervene either because the Constitution explicitly vests power over the matter solely to another branch of government or because the courts would not have any judicially discoverable or manageable standards for making a legal determination. I can see that you could argue either point, and perhaps the courts would be inclined to wash their hands of the matter. However, I would not give up easily on either point.
As to the first point, the Constitution is silent about filibusters or cloture rules, and while each House has the power to enact rules governing their proceedings that cannot be read as permitting the enactment of rules which are unconstitutional. There is not, as Baker v. Carr would require, a "textually demonstrable commitment of the issue to a coordinate political branch."
As to the second point, this is not a situation where there is an absence of any law governing the matter. The strongest argument in favor of the filibuster is the longstanding tradition of its use, and the strongest argument against it is the absence of any provision in the Constitution for a device which has such a "profound and pervasive effect" on the legislative process. Both of these are standard legal arguments which the courts are perfectly capable of assessing. I believe that this presents a legal question, not a political question.
Thank you for the challenge that you each present!
I think the fact that the Constitution specifically provides that “Each House may determine the Rules of its Proceedings" provides a fairly strong textual commitment of the issue to each house. Clearly, a majority of the Senate believes the cloture rule is constitutional, and I think a court would defer to the Senate’s own determination of the constitutionality of its proceedings. You never actually state what provision of the Constitution you think the filibuster rule violates. There is nothing in the Constitution that says what percentage of each house must support a bill for it to “pass,” although at least on the Senate side, it can be inferred from giving the vice president the tie-breaking vote when the Senate is “equally divided.” Thus, if the House of Representatives wanted to adopt a super-majority requirement for bill passage, I don’t see what would make it unconstitutional.
It would be interesting to see how Congress would function if the cloture rule is invalidated. If the cloture rule is unconstitutional, then presumably every rule that vests any power in a minority of the membership is similarly unconstitutional. All rules that vest authority in the Majority Leader, Minority Leader, committee chairmen, or committees would also be unconstitutional. Since every decision would have to be put to a vote by the entire Senate, there may not even be a need for filibusters as the routine functioning of each house would make passage of any bill difficult.