The U.S. Senate filibuster has become a rule requiring a supermajority of 60 votes out of 100 to pass legislation and (until recently) to approve presidential nominees to judgeships and to lead executive branch departments. Is this constitutional?
A group of members of Congress and others seem to think not and have filed a lawsuit to get it thrown out. While the Constitution does not explicitly state only a majority of Senate votes is needed, it does contain six provisions for a supermajority needed for specific acts, such as overriding a presidential veto – implying only a majority of votes is needed to pass legislation and to approve nominees.
The word “filibuster” comes from Spanish and Dutch words meaning “to plunder.” The filibuster was not always a feature of the Senate, and it was created in the early 19th century as a result of eliminating Senate rules thought to be unnecessary, including one permitting a majority to declare debate about a particular topic is finished. It was then the “Mr. Smith Goes to Washington”-style “talking filibuster” became possible to stall action, and so it became necessary to pass the “cloture” rule, which can end debate with a supermajority of votes, now set at 60. And then it wasn’t long before just the threat of a filibuster was enough to trigger the need for a cloture vote, creating the potential to require 60 votes for all Senate action. While concepts of Senate collegiality kept the use of filibusters in check for decades, by the beginning of President Obama’s second term, the need for 60 votes for all Senate action became reality.
This history explains why it has taken so long for a lawsuit challenging the filibuster to surface – even if unconstitutional, when it was rarely invoked, it seemed like a reasonable check by minority-party rights on majority rule in extraordinary circumstances. However, once it supplanted majority rule for all Senate votes, a lawsuit seemed appropriate.
But is the filibuster unconstitutional? It would seem so on its face, given the requirements for a supermajority vote in six explicit circumstances (Conviction of an impeached president is another example of that), and the rich history of majority rule preceding the Constitutional Convention.
But there are a few arguments why it might not be. The first is simply there is no explicit provision, such as “most Senate votes must be by simple majority.” The second is no one disputes the Senate may make its own procedural rules, and the filibuster is merely “procedural.” The third is it’s been around long enough without objection that it has become part of our legal fabric that should not be undone by the courts.
If the rule remained unchanged last year, I would say the plaintiffs would have a decent chance of convincing the court it is unconstitutional (The plaintiffs actually lost already in the lower court on jurisdictional grounds, and it is now before the U.S. Court of Appeals for the D.C. Circuit). However, some of the filibuster’s sting was taken out of it in 2013, when the majority Democrats amended the rules themselves, so now a filibuster may be ended by simple majority for executive and judicial appointments (excepting the Supreme Court). Opponents who coined that change the “nuclear option” warned of dire consequences from allowing simple majority rule, but it’s a big step toward fixing a dysfunctional Washington by filling executive and judicial vacancies stymied under the old rule; it seem the cassandras who opposed the change now appreciate that, someday, a president from their party will be able to fill vacancies without obstructionist tactics. That still leaves the two large categories of legislation and Supreme Court nominations subject to filibuster; but a court may see this change as a reasonable step, avoiding the need for judicial intervention. This is particularly true because the “political question” doctrine relied upon by the lower court to avoid addressing the issue goes to similar concerns.
My guess is the appellate court will punt on this at least for now, probably on the “political question” ground, rather than addressing the larger constitutional question. But if the Senate goes back to its old rules of allowing filibusters for all votes, the courts might take another look. And if they do, I would think they might find something, which basically eliminates majority rule, that cannot be found consistent with the U.S. Constitution.
Matt Kenna is a Durango attorney practicing public interest conservation law. Reach him at matt@kenna.net.
