Filibuster

There Is Nothing "Unconstitutional" about the Filibuster

Some academics are urging VP Harris to declare the filibuster unconstitutional

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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.

NEXT: Common Carrier Status as Quid Pro Quo for § 230(c)(1) Immunity

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  1. Has anyone done a study of voting regulations in all 50 state that is available online somewhere?

    I’ve been watching the overheated rhetoric on voter suppression for the last few years and most of it seems over blown. The specific provisions that are cited often seem either innocuous or of little import. Calling these changes Jim Crow 2.0 surely seems a nearly Trumpian level of exaggeration.

    When I first started voting you generally had to go to the registrars office to register and prove your residence, on election day you had to go to the poll in your precinct to cast a vote unless you had an acceptable reason to vote absentee.

    Over the years early voting has been implemented also generally requiring you to appear at a specific place to vote, absentee voting has been expanded and in my state at least anyone over 65 and some others can sign up for voting by mail and they send you a mail-in ballot before every election.

    I watched the debate over the Georgia law and a few provisions seemed overly restrictive, one closing early voting on Sunday was particularly criticized because black churches had begun organizing “Souls to the Polls” transporting people to vote after church. That provision was dropped. Another provision that got a lot of publicity prohibited providing food or drink to people waiting in line to vote. It was often portrayed as giving water to people, but it was more than that and it easily could have been used to circumvent anti-electioneering provisions of the law designed to prevent, among other things, intimidation of voters. Imagine a bunch of white guys in tactical gear handing out water in a black precinct.

    This morning as I was getting ready I saw Mitch McConnell speaking on this very topic and citing some examples of what the Texas law was going to do. I imagine his points were accurate but certainly there could have been objectionable provisions in the bill he didn’t mention.

  2. The Senate can vote to eliminate the filibuster. It only takes 50 votes for the Senate to change the rules.

    I realize that some Senators want to hide behind fancy rhetoric.

    Honestly they should get rid of it. Democrats seem to think that they will be in power forever. Harry Reid got rid of the filibuster for judicial nominees, see how that worked out?

    1. “Honestly they should get rid of it. ”

      Agreed. Its a crutch for do nothing pols from both parties.

    2. Minor quibble – it only takes 51 votes for the Senate to change it’s rules. This whole silly debate over whether it’s “constitutional” (and it very clearly is) is because the Senate doesn’t have the 51 votes they need. There are a few level-headed Ds who know that they won’t be in power forever and who will want the filibuster then.

      Which gets to the larger point that they definitely should not be getting rid of the filibuster. Yes, it is an anti-majoritarian mechanism built into the system. While it came about somewhat by accident, it has had the effect of controlling the tendency toward demagoguery and giving the minority party a seat at the negotiating table. It’s part of what kept the Senate collegial and tempered the rampant partisanship that characterized the House.

      No party stays in control forever. Leaving the filibuster in place when you’re in the majority is a hedge that ensures you retain some power when you’re in the minority.

      1. While it came about somewhat by accident, it has had the effect of controlling the tendency toward demagoguery and giving the minority party a seat at the negotiating table. It’s part of what kept the Senate collegial and tempered the rampant partisanship that characterized the House.

        I’d say it has often encouraged demagoguery.

        I don’t think that, as it functions today, it gives “the minority party a seat at the negotiating table.” The problem is that the minority party is under no pressure to negotiate. All they have to do is say “We’re filibustering,” and that’s that. So all the bluster about how it encourages bipartisanship is nonsense. What it encourages is pure obstructionism.

        Having mechanisms that let the minority slow the majority may have some value, and provide room for negotiation. But a mechanism that is a brick wall doesn’t do that.

        It’s part of what kept the Senate collegial and tempered the rampant partisanship that characterized the House.

        Is it your opinion that the Senate, today, is “collegial?” I disagree.

        1. “Collegial” is a relative term. Is the Senate perfect? Not by a long shot. Is the Senate less of a snake pit than the House? Yes, still.

  3. It makes the other side’s argument that electing Biden is unconstotutional sound more reasonable.

    If you really, really don’t like something that the legitimate electoral and legislative process put into place, just declare it unconstitutional. Fuck them.

    The Supreme Court does it all the time. If they can do it, why can’t Trump? Why can’t Harris?

    1. It’s more a case of the middle ceasing to hold.

      It is bad enough that they stole the election — not the first (or even second) time in American History that has happened — but to then turn around with stuff like this?!?

      The middle is going to cease to hold…

  4. I suspect I would agree with Prof. Adler (after studying the issue).

    I doubt Prof. Adler shares my expectations or preferences with respect to the filibuster’s future, however.

    Or perhaps he has observed enough from the Trump era to recognize that some participants in our current debates do not deserve respect, let alone the benefit of unearned structural amplification of their voices.

    1. You have no choice but to agree, otherwise you would be a ranting fool and we cannot have that.

  5. I would heartily agree that the idea that the filibuster is unconstitutional is off the wall. Except that I have seen off-the-wall constitutional arguments actively flogged here and accepted. Who is to say it won’t happen again?

    1. Remember the argument that the Second Amendment only applied to militias in each state, not private ownership of arms? That meant that all the rest of the Bill of Rights said what the federal government could not do to a citizen, but this amendment said you had the right to be drafted.
      Only a Supreme Court Justice throwing this one out there…

    2. I don’t think we should normalize off the wall arguments. If, say, Prof. Slosh Hackman is making bad arguments, we should call them bad arguments. During the Obamacare legal wars, a lot of us pointed out how dumb Randy Barnett’s arguments were. That is proper. I think part of the obligation of those of us who work in the legal system and make public comments is to push back against those who would pretend that there is no such thing as legal reasoning at all and that all cases are decided based on politics.

      So calling out bad arguments is good. Whichever side they come from.

      1. And yet federal mandates that require people to buy health insurance are unconstitutional.

        He had that part right.

  6. I like one of Chemerinsky’s options: Change the filibuster rules back to wait they were. Require that the senators who want to filibuster must actually hold the floor.

    1. Ted Cruz did that — reading “Green Eggs and Ham” to his children, amongst other things.

      A few more people like Cruz and we wouldn’t have the NoBama NoCare garbage we have now…

  7. Erwin’s a great professor and a lovely human being, but he goes off on these weird tangents sometimes. (E.g., during the 2000 Bush-Gore thing, he proposed in an op-ed that Palm Beach County do a revote, weirdly ignoring both how illegal that would be and what an absolute logistical mess and magnet for electoral fraud it would be.)

    The filibuster is EXTRA-constitutional. Not unconstitutional. The modern filibuster is certainly inconsistent with the spirit of the Constitution- the framers expected that things would get majority votes in both houses of Congress. But they also quite expressly conferred each house the power to have a filibuster or to make any other rule of its proceedings that the house wished to, and they were quite familiar with various tactics used by legislatures to table things, prevent votes, bottle things up, logroll, etc. Thus the filibuster is perfectly constitutional.

    Sometimes the current desires of the Democratic Party are not enacted into the Constitution. That’s true about gerrymandering, and it’s true here. (And, to my conservative friends here- sometimes the current desires of the Republican Party are ALSO not enacted in the Constitution.)

  8. “Some academics are urging VP Harris to declare the filibuster unconstitutional”

    Some academics should realize that it is the Supreme Court, not the VP who determines constitutional or not.

  9. The problem with labeling the filibuster “racist” is that we have two Dakotas because the Republicans wanted to keep a boot on the neck of the racist and traitorous South…so we have 2 Dakotas for a good reason, but it should only be one state. So just because something was done for a particular reason 100 years ago should have no bearing on if it’s a good idea today—I’m looking at you Electoral College that today makes a Marine’s vote in California worth 1/5th of the vote of a transgender female communist in Pennsylvania.

    1. It’s only fair that we have two Dakota’s, the south started it first with two Carolinas.

      But really the War of Northern aggression probably had little to do with splitting Dakota into two states. The two Dakota’s were admitted in 1889, and were only 2 of the 4 states admitted that month along with Montana and Washington. In fact in the two years between 1888-1890, 6 states were admitted, adding 12 new Senators.

  10. The argument was dumb when GOPers made it in 2005 [“nuclear option”), its still dumb.

    Its like the Trillion Dollar Coin argument.

  11. Assume, for the moment, that the filibuster is bad. Is it also unconstitutional? Some think so.

    Do two people count as “some,” or does “some”imply more than that?

    FWIW, I think Adler’s points are correct, and obvious. One thing I’ve learned from reading the VC is that some (more than two) law professors enjoy making far-fetched legal arguments. I guess that’s harmless as long as it’s confined to op-ed pages, blogs, and the like. When they get into the courts is when it gets dangerous.

    1. I actually dislike it a little more than you do. Members of the public see these arguments and often can’t tell the difference between good argumentation and bad argumentation. And I think, honestly, that law professors are counting on that. Indeed, a lot of these arguments are never intended for a courtroom; the only intent is to mislead the public that there’s a real argument when there isn’t one.

      Part of the problem here is that publications don’t bother to call BS on bad arguments before publishing them. But part of being a scholar is you aren’t supposed to do this. E.g., if you are a biologist at a university but also a fundamentalist Christian, you shouldn’t be writing pieces in mainstream publications arguing that the fossil record proves your religious beliefs. It’s perfectly fine believing anything you want, but when you are acting as a public intellectual, with that university position attached to you, you are supposed to be scholarly and to tell it like it is, not how you would like it to be.

      1. Except sometimes, arguments just as bad or worse are accepted by SCOTUS and imposed on 330 million people in 50 different states. There’s no real objectivity; if there was, judges wouldn’t need to be elected or appointed by elected representatives. Judges are a part of self-government by the people. But all that breaks down into a farce quickly when the scale of jurisdiction becomes too large and when the government powers in question become too micro.

  12. Unfortunately there is nothing preventing the Senate (for example) instituting a rule that only votes from Senators from one party will be counted (or from Senators signing an affidavit pledging to support Donald Trump in overthrowing the government). Though counting votes only from certain States would run afoul of the “equal suffrage” provision.

    1. Refusing to count specific votes of Senators because of a political position they hold would violate the “equal suffrage” clause, because it would deny a state equal suffrage in the Senate.

      I am not sure how the courts would deal with it, but I’m fairly certain THAT would be unconstitutional.

      1. They’re not being excluded because they come from a certain state; no state would have standing to argue the “equal suffrage” rule.

        Lyons v. City of Los Angeles, 461 U.S. 95, 137 (Marshall, J., dissenting) (if the LAPD had a general rule to shoot one out of every ten suspects, no one would have standing to contest it).

        1. A Senator whose vote doesn’t count, and as a result his or her state is denied equal suffrage, has standing to challenge it. It might be a political question, but that Senator has standing.

          In Lyons, no prospective plaintiff can prove they are ever going to suffer a chokehold, so you can’t get prospective relief. (Note, they can still sue after the fact for an illegal chokehold.)

          Here, when a Senator’s vote isn’t counted, an injury occurs.

  13. I think somewhere in the democrat party there is the vaguest glimmer of recognition that getting rid of the filibuster now would give them some brief wins for the next year and a half, but the payment for the next many years would be extremely high. Some of them actually may remember Mitch McConnell telling them that they would regret getting rid of the filibuster for judicial nominees. I know there are a lot of so-called progressives with the idea that THIS IS THE MOMENT we have been waiting for, but the republic goes on and the power shifts and they won’t like it (a lot) when the tables are turned.

  14. I agree with Adler that the filibuster is constitutional, but I also think it’s a bad rule that should be gotten rid of. According to Wikipedia, 13 states allow the filibuster in their legislatures and 37 do not. https://en.wikipedia.org/wiki/Filibuster#:~:text=In%20the%20United%20States%20House,Reed%20eliminated%20it%20in%201890. Political leanings have nothing to do with it: The states that have the filibuster are roughly evenly divided between red states and blue. I see no reason why a supermajority should be required to enact legislation; it frustrates the will of the majority. The Constitution provides an adequate constraint on the power of the majority to abridge minority rights.

  15. Since Senator Manchin spoke in favor of the “talking filibuster,” why hasn’t it been implemented?

  16. Reynolds v. Sims was a shoddy decision.

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