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Is the Filibuster Unconstitutional?

Matt Yglesias cites a 15-year-old essay by Hendrick Hertzberg arguing that the filibuster is unconstitutional:

It’s true that the framers did not specify that the Senate would do its normal business by simple majority vote, but that’s because it didn’t occur to them that they had to specify it, any more than it occurred to them to specify that senators should not dunk each other’s powdered wigs in the inkwells. For, as the Supreme Court noted in 1892, “the general rule of all parliamentary bodies” that “when a majority is present, the act of a majority of the quorum is the act of the body…has been the rule for all time.”…. Unfortunately, the Court, which is extremely shy of challenging the internal workings of Congress, is not about to outlaw filibusters.

Matt tends to agree but 1) thinks it’s a good thing that the courts are reluctant to weigh in here; 2)the Senate could fix this if it’s Members wanted to; and 3) it’s members don’t want to because “most senators care more about their personal power and prerogatives than they do about the welfare of the country or the world.”

While I think the widespread use of the filibuster and other supermajority requirements like the Byrd Rule are extraconstitutional, they’re rather clearly not unconstitutional. Why?  Because Article I, Section 5, Clause 2 specifies that “Each House may determine the rules of its proceedings.”  So long as the rules don’t violate other provisions on the Constitution, then, the Senate can run itself however it damn well pleases.  And it does!

UPDATE: Commenter TG Chicago writes, “I’d also be interested to know what you think of the good of the filibuster rather than just the legality of it.”  I’ve written pretty extensively on the topic in the past but most people reading this post likely haven’t read those old posts.

Short answer: I think it’s a good thing if used for truly huge legislation that will have a major impact on the way we govern ourselves and a bad thing if it’s used routinely on even basic legislation.  So, for example, filibustering a total overhaul of the health care system or a $1.3 trillion bailout is fair game but filibustering, say, Cash for Clunkers is not.

Additionally, I disagree with the use of the filibuster on presidential prerogatives, such as judicial and cabinet appointments, where the Senate’s intended role is merely advisory.  With legislation, Congress is the lead actor with a presidential signature as an institutional check.  For appointments, the president is the lead actor with the Senate there to prevent clearly unqualified nominees from getting through.

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About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He has a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. Boyd says:

    …and I’m repeatedly amazed at the intelligent people who can’t grasp this reality. Or, more likely, it doesn’t comport with how they feel things should be done, so it must be illegal (unconstitutional).

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  2. TG Chicago says:

    Mr. Joyner, I appreciate your thoughts on this, but I’d also be interested to know what you think of the good of the filibuster rather than just the legality of it.

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  3. Dave Schuler says:

    It’s true that the framers did not specify that the Senate would do its normal business by simple majority vote, but that’s because it didn’t occur to them that they had to specify it

    Hooey. The filibuster has been used (although not by that name) for more than 2,000 years in deliberative bodies and the framers of the Constitution were at the very least aware of the practice. Requirements for supermajorities under specific circumstances are written into the Constitution. Until the last century unlimited debate in the Senate was the practice—it’s the supermajority to end the filibuster that’s the modern innovation not the filibuster.

    I think that “unconstitutional” is a poor choice of words in this case. It’s certainly undemocratic but, then, so is the Senate, intentionally so. Not to mention inconvenient.

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  4. sam says:

    Hmmm. The Wiki page has this entry

    Procedural filibuster

    In current practice, Senate Rule 22 permits filibusters in which actual continuous floor speeches are not required, although the Senate Majority Leader may require an actual traditional filibuster if he or she so chooses. This threat of a filibuster where no floor speech and no quorum is required may therefore be more powerful than an actual filibuster that would require attendance by a quorum of Senators as well as the physical presence of the Senators speaking.

    Previously, the filibustering senator(s) could delay voting only by making an endless speech. Currently, they need only indicate that they are filibustering, thereby preventing the Senate from moving on to other business until the motion is withdrawn or enough votes are gathered for cloture.

    I’m all for filibusters of the old variety: cots, sleeping in the cloakroom, fast dashes to and from the head, sore throats, etc. None of this namby-pamby “I’m filibustering (even though I’m at the Congressional waiting to tee off)” stuff.

    Heh, and the Wiki page has this:

    The term filibuster was first used in 1851. It was derived from the Spanish filibustero meaning pirate or freebooter. This term had in turn evolved from the French word flibustier, which itself evolved from the Dutch vrijbuiter (freebooter). This term was applied at the time to American adventurers, mostly from Southern states, who sought to overthrow the governments of Central American states, and was transferred to the users of the filibuster, seen as a tactic for pirating or hijacking debate.

    I’d always thought the French ‘flibustier’ was really ‘filibustier’, and referred to a well-endowed lady, but you learn something new every day, I guess.

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  5. PD Shaw says:

    I’m not sure it’s undemocratic, Dave. The Senate could change the rule; IIRC it used to be a 2/3rds vote needed to invoke cloture.

    But changing the rule for specific ends would be undemocratic IMO from rule of law concerns. To quote Jefferson:

    whether the rules “be in all cases the most rational or not, is really not of so great importance. It is much more material that there should be a rule to go by than what that rule is; that there may be a uniformity of proceeding in business, not subject to the caprice of the Speaker or captiousness of the members. It is very material that order, decency, and regularity be preserved in a dignified public body.”

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  6. Dave Schuler says:

    The Senate is most assuredly undemocratic. How else can you characterize a body in which the largest and smallest states have the same number of delegates? That it should use democratic processes in its own operations doesn’t change that.

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  7. PD Shaw says:

    Dave, I understood you as saying the filibuster was undemocratic, as was the Senate. I was merely defending the filibuster as democratic.

    I’m not entirely comfortable with saying the Senate is undemocratic, as much as less democratic than the House.

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  8. Dave Schuler says:

    I’m not entirely comfortable with saying the Senate is undemocratic, as much as less democratic than the House.

    Not unlike characterizing someone as the “world’s tallest midget” or the “world’s shortest giant”. The House was once reasonably democratic. It stopped being so more than a century ago.

    While I agree with Hamilton that there’s no need to be a slave to mathematical proportions in representation the notion that representing a district of 650,000 is remotely democratic is largely fanciful IMO.

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  9. just me says:

    I have no issues with the filibuster for legislation. I do think that filibusters should be old style, where those filibustering camp out and actually give speech of some sort-even if it is reading a telephone book.

    I am not in favor of the filibuster for presidential appointments and similar. Personally I think outside of obvious ethical concerns that the president should be able to appoint who he wants-the whole “to the victor go the spoils” thing at work.

    I don’t think the filibuster is unconstitutional or specifically constitutional, and I think it has its use. Although I would like to see the senate tweak the rules so that they aren’t so easy.

    I would also take the moment to say that I question all this sudden dislike for the filibuster among those who liked it and supported it during the Bush years when the GOP was in control of the senate. At this point the democrats have a filibuster proof majority-the real problem with the filibuster isn’t that the minority party can use it, but that several in the majority party-that is filibuster proof may join the minority in the filibuster. That sort of takes away the whole “party of no” and obstructionist charges.

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  10. sam says:

    I would also take the moment to say that I question all this sudden dislike for the filibuster among those who liked it and supported it during the Bush years when the GOP was in control of the senate.

    Oh, stop it. It’s not like the thing was invented the day before yesterday. It’s an equal opportunity device. Just google ‘senate filibuster’ and read the squealing on both sides of the aisle re its use.

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  11. Dodd says:

    The filibuster in the US Senate has been practiced since the 1830s. The House saw them from time to time prior to instituting rules strictly limiting time for debate in 1842.

    James nailed it: Art. 1 Sec. 5, cl. 2. Q.E.D.

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