Is the filibuster unconstitutional?

This is a comment I posted to an insightful DailyKos article:

I think the argument is persuasive.

First, many have noted the other constitutional provisions that require a supermajority in some instances, such as expelling a member or overriding a veto. (There are also sub-majority rules, such as permitting one-fifth of each house to demand a recorded vote.) Since a cloture vote is a vote to “call the question,” and the general rule is that a majority may govern, it is inconsistent to allow the majority to be frustrated in bringing a bill to the floor. (This would also weigh against the right of a single senator to put a “hold” on a bill.)

Second, the Constitution allocates power to the Congress and to each house of Congress as a body, not to individual members or blocs. Even though the cloture rule is a rule of the Senate, the political question rule does not automatically exclude further analysis; courts have intervened in that area in the past. Imagine if the Senate adopted a rule explicitly requiring a two-thirds vote to pass any bill, not just to override a veto. That would virtually stop Congress from exercising its power (and duty) to adopt legislation. It would be just as unconstitutional as if the President issued an executive order stating he would not sign any bill that had not passed by a two-thirds vote. For any branch of government to tie its own hands throws the entire system out of balance.

Third, the rights of the senators’ constituents (quaintly known as “the people”) need to be considered. Just as the “one man, one vote” decision held that House districts must be fairly apportioned so as to give all Americans a roughly equal voice, we need to consider the rights of those voters who elected 51 of the senators. The Court has ruled that it is a denial of equal protection to permit a few voters in the 13th Congressional District of New York to elect a representative but to require a greater number of votes in the 14th Congressional District. ┬áSo what would the Framers make of a rule that, as applied, gives a senator who is opposed to a bill 50% more voting power than a senator who favors the bill?

The Framers took elaborate account of state and sectional interests in setting up the constitutional scheme (particularly in giving each state two senators), and to that extent they approved a check on an overall national majority. But the Framers would have balked at any rule of the Senate giving a senator from, say, Connecticut one and a half votes and a senator from New York only one. Yet that is the effect of the cloture rule giving 41% of the senators the power to thwart the will of 59%.

The Constitution gives Congress the power to “make all Laws which shall be necessary and proper” for the conduct of government. Congress cannot effectively exercise its role in the checks and balances system if it does not exercise that power. The constitutional imperative is that the government be allowed to govern, not that internal rules be sacrosanct.

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1 Comment

  1. smarkit

    February 18, 2010 @ 11:13 am


    The key phrase here is “For any branch of government to tie its own hands throws the entire system out of balance.”

    The Senate has tied its own hands is is free to untie them itself. The Senate was representing the people when it decided to tie its hands. The Senators LIKE it this way. It gives them more individual power.

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