There Is Nothing "Unconstitutional" about the Filibuster

Some academics are urging VP Harris to declare the filibuster unconstitutional

Those in the Senate majority, and their supporters, have never liked the filibuster, as it often prevents the majority from enacting desired policies. This is particularly true today, as political polarization has increased legislative obstruction.

Assume, for the moment, that the filibuster is bad. Is it also unconstitutional? Some think so. Back in March, law professors Erwin Chemerinsky (Dean at Berkeley) and Burt Neuborne (NYU) argued in the Los Angeles Times that the filibuster gives the Senate minority an "unconstitutional veto" and that Vice President Kamala Harris, in her role as President of the Senate, should simply declare it to be so. Chemerinsky expanded on the argument that the filibuster is "unconstitutional" last month in a solo op-ed in the Sacramento Bee.

The argument that the Senate filibuster is unconstitutional is clever, but it is also thoroughly unconvincing. Let me highlight a few of the flaws in the arguments these op-eds make.

The first argument is that "the  current version of the Senate filibuster . . . which essentially establishes a 60-vote supermajority rule to enact legislation in the Senate, is unconstitutional because it denies states "equal Suffrage in the Senate" in violation of Article V of the Constitution." As Chemerinsky and Neuborne explain:

Wyoming with 580,000 inhabitants, elects the same number of senators as California, with its 40 million residents. A person in Wyoming thus has 65 times more voting power in the Senate than a person living in California. The current 60-vote filibuster rule makes this imbalance even worse.

Under the 60-vote rule, 41 senators representing about a third of the population can outweigh 59 senators representing two-thirds. This situation surely violates the principle of equal representation in voting — for example, the "one person, one vote" rule that the Supreme Court long ago applied to state legislative and congressional districts.

This argument rests on a sleight of hand. The "equal suffrage" references in Article V of the Constitution is that of states, not of state populations. Indeed, when drafted Senators were not even elected by the people, but were selected by state legislatures. The principle here is "one State, two votes," not "one person, one vote," and the filibuster does nothing to obviate or trump that principle. All Senate votes count equally. The cloture rule (which allows for filibusters) determines how many votes are necessary to end debate.

Were what Chemerinsky and Neuborne argue the actual constitutional principle, it would not be the filibuster that is unconstitutional, but the entire Senate. (Cf., this legendary Legal Theory Blog April Fool's post.) After all, it is the very structure of the Senate that creates the imbalance of which they complain.

A further argument made in both pieces is that the filibuster violates the Constitution's emphasis on majority rules. Here's how Chemerinky makes the point in the Bee:

virtually no bill can pass unless 60 Senators agree for it to be considered. This is, in and of itself, unconstitutional as the Constitution specifies when more than a majority is required for Senate action. For example, article I, section 7, specifies that it takes a two-thirds vote of both Houses of Congress to override a presidential veto. That clearly implies that a majority vote is sufficient to enact a law.

The Constitution "implies" no such thing. To the contrary, the text of the Constitution authorizes the Senate to create its own procedural rules.

Article I, section 5 explicitly provides, without qualification, that "Each House may determine the Rules of its Proceedings." Yes, the Constitution requires supermajority votes for some actions, but this creates a floor, not a ceiling. The Constitution expressly allows for each House to adopt whatever voting and other procedural rules they like. It is also not as if the filibuster is the only counter-majoritarian rule. Both the House and Senate have myriad rules governing the consideration of bills that create minority "vetogates," and this is hardly a new invention. If the filibuster "destroys the mathematical equality of each senator's vote," as Chemerinsky and Neuborne claim, then so does every other rule that allows a bill to be blocked by anything less than a majority vote. Perhaps we should have a simple majority vote requirement that applies across the board, but the Constitution requires no such thing.

As a technical matter, Chemerinsky and Neuborne are correct that VP Harris could simply "declare the current Senate filibuster rule unconstitutional," but this would also be a futile gesture. Should VP Harris try to announce that the filibuster, as used, is unconstitutional, it would be subject to challenge. To be sustained, VP Harris would need 50 Senators to support her ruling, and if there are not 50+1 Senate votes to eliminate the filibuster now (and there are not), a sudden declaration that the filibuster is unconstitutional from the Vice President will not change that. In other words, until there are 50+1 votes to get rid of the filibuster, we will have the filibuster.

I understand why some want to argue that the filibuster is unconstitutional. Senate Republicans use (and threatened use) of the filibuster has frustrated Democrats' policy agenda. Likewise, Democratic filibusters prevented Republicans from enacting portions of their policy agenda when the shoe was on the other foot. Like others, I would welcome reforms to the filibuster rules that would, among other things, require genuine filibusters. Chemerinsky and Neuborne proposed this back in January. I would support such a change to the Senate rules, but I do not believe any such reform is constitutionally required.

UPDATE: In a subsequent post, I discuss how Dean Chemerinsk's views on the filibuster have changed over time.