It Will Have to be Senate Majorities That Eliminate the Filibuster

Garrett Epps is correct that it’s not going to be the federal courts that eliminate or constrain the filibuster.   And while I yield to nobody in my disdain for the filibuster, I also agree that the argument that the filibuster is unconstitutional is fundamentally unserious on the merits. The federal courts would be unlikely to intervene into a dispute over Senate procedure even given a decent constitutional argument, and the constitutional argument against the filibuster is notably feeble.

The Udall reform is no panacea, but some wedge to undermine the filibuster is necessary.  It’s time to make it happen.

 

92 comments on this post.
  1. Craigo:

    I don’t agree that it’s a weak argument, but yes, the Supreme court will never take it up.

  2. c u n d gulag:

    The Courts are smart to stay out of this, lest they be accused of messing with another branch of the government’s rights and powers.

    Sure, the Congress can impeach a Federal Judge, but it’s very rarely done, and there had better be good reasons.

    The filibuster was created by the Senate for use in that house, ostensibly, to protect the rights of the minority party. It is a Senate rule, and not part of the Constitution.

    The Senate was designed to “cool” the legislation coming from the “hotter” House, and the filibuster was designed to slow down that already slow body – and give cooler heads time to reflect, and prevail, one way or the other, before a bill becomes law.

    That privilege has been much abused of late, by the Republicans.

    IMHO:
    Don’t eliminate the filibuster, but make the Senators get up off their fat asses, and even fatter wallets, and explain why something should not be passed, and try to convince others to support their position.
    This way, the public can also be made aware of the issues that are causing problems for the minority party, and let their voices be heard on the subject, by contacting their own Senator(s).
    Right now, some random Senator can put a silent and anonymous hold on things for a few days, for no good reasons except that he/she can, and that it will throw some more sand and dirt in the other parties attempt to govern.

    And then, if they’re not successful, sit down and STFU.

  3. joe from Lowell:

    I can’t stand the type of “any hook I can hang my hat on” constitutionalism that Geoghehan engages in. He’s not making any effort to be fair and come to the best-supported conclusion. He’s taking up and casting aside styles of constitutional reading based entirely on their momentary convenience to get him where he wants to go.

    That’s fine if you’re a law student assigned to argue a side, or a lawyer representing your client in court, but behaving that way when writing as an analyst or pundit is just spin.

  4. Scott Lemieux:

    “Each House may determine the rules of its proceedings” seems pretty dispositive to me.

  5. Craigo:

    But not to the extent that those rules can conflict with Constitutional structure, otherwise there’d be no point to having Article I at all.

    The situations where supermajorities are required are enumerated, and majority rule is otherwise assumed. To create a rule imposing a supermajority requirement where the Constitution doesn’t require it is to amend it by one-house fiat.

  6. joe from Lowell:

    and majority rule is otherwise assumed

    It is?

    Each House may determine the rules of its proceedings

  7. Craigo:

    It is?

    Yes.

    Also, thanks for quoting something Scott already said.

  8. somethingblue:

    That’s fine if you’re a law student assigned to argue a side, or a lawyer representing your client in court or the senior Associate Justice of the Supreme Court of the United States, but behaving that way when writing as an analyst or pundit is just spin.

    FTFY.

  9. joe from Lowell:

    Given the black-letter language rebutting your assumption, you’re going to have to do better than “Yes” and a snotty attitude.

  10. Murc:

    But not to the extent that those rules can conflict with Constitutional structure,

    How does the filibuster do that?

    Laws may still be voted on, and passed, with a majority. But the Senate may set any rules it wishes for how laws get to that final vote. The practical effect of this is to create a supermajority requirement, but the Constitution doesn’t give a damn what the practical effect of its various clauses and powers are.

    The Senate can require any procedure it wants to for legislation to come to a final vote. If they required that a Senator had to compose his proposed laws in trochaic tetrameter and then sung as an aria in the well of the Senate, that would be just as constitutional as the filibuster.

  11. Anonymous:

    The situations where supermajorities are required are enumerated

    Yes and actual legislative votes are conducted by majority vote. However the rules of proceedings that the Senate have written for themselves (as the Constitution explicitly allows) make it difficult to get that majority-wins vote. There’s a zillion hoops that you hve to jump through to get a bill to a floor vote and the rules make it easy to slow or derail that process. It’s wrong, but it’s not unconstitutional.

    It’s simply another instance of bad policy that’s perfectly constitutional. That’s nothing new. The cap on the amount of earnings that are subject to FICA taxes is terrible policy as it’s an explicitly regressive tax, but no one I know of is arguing that it’ unconstitutional.

  12. joe from Lowell:

    Heh. Indeed.

  13. David Hunt:

    The above comment is mine.

  14. Amanda in the South Bay:

    Sure, the Congress can impeach a Federal Judge, but it’s very rarely done, and there had better be good reasons.

    Um, exactly what are your reasons for stating this?

  15. Craigo:

    There is no black-letter language rebutting that assumption.

    There is the fact majority rule is the bedrock of parliamentary procedure, and always has been – including at the Philadelphia convention itself.

    There are also the models for the Congress, such as the British Parliament, the Dutch States-General, the French National Assembly, the colonial and state assemblies, and Continental and Confederation congresses, every one of which operated according to majority rule.

    There are, among others, Federalists 54 and 62, which take majority rule for granted. (In the Madison-penned papers especially he extols the enumerated constitutional safeguards against majority will, which is otherwise assumed in his writings.)

    And finally, there’s the logical incoherence of the argument against it.

    Each house may determine the rules of its own proceedings.

    And how does a house determine its rules?

  16. Craigo:

    The practical effect of this is to create a supermajority requirement, but the Constitution doesn’t give a damn what the practical effect of its various clauses and powers are.

    Really? This reminds me of the argument from this summer: Sure, the insurance penalty may look like a tax, sound like a tax, and act like a tax, but we’ve agreed not to call it a tax, and that’s what’s important. As long as we call it a cloture vote and impose a supermajority requirement not enumerated in the Constitution, we’re free and clear.

    Legal fictions which contravene constitutional structure are, in fact, unconstitutional.

  17. Craigo:

    Again, you cannot use one constitutional provision to contravene another.

    The Constitution makes no convenient distinction between legislative votes and procedural votes. It provides a half dozen specific situations where supermajorities are required, and assumes majority rule in all others. To allow a house to make a rule creating new supermajority requirements is to render those provisions meaningless.

  18. Murc:

    Sure, the insurance penalty may look like a tax, sound like a tax, and act like a tax, but we’ve agreed not to call it a tax, and that’s what’s important.

    When a body with the legislative power to define things legally says something isn’t a tax, then it in fact, for all legal purposes, isn’t one.

    Legal fictions which contravene constitutional structure are, in fact, unconstitutional.

    This straight-up isn’t true. End-running the constitution while staying narrowly within its letter has a long and proud tradition.

  19. Murc:

    Again, you cannot use one constitutional provision to contravene another.

    … this happens all the time!

    The Sixth Amendment is regularly contravened by the state claiming defense powers enumerated elsewhere, and that’s just off the top of my head.

    The Constitution makes no convenient distinction between legislative votes and procedural votes.

    Yes, it does; it gives the Congress the power to define its own procedures. The ONLY assumption it makes is that said procedures don’t contravene other parts of the text.

    And the filibuster does not. Final legislative votes on laws happen with a bare majority. The constitution DOES NOT lay out rules for how laws have to get there.

  20. joe from Lowell:

    There is no black-letter language rebutting that assumption.

    Each house may determine the rules of its own proceedings.

    Even if you can string together some sort of argument why this statement shouldn’t be read in its plainest, most obvious sense, on its face, this black-letter language rebuts your assumption.

    There is the fact majority rule is the bedrock of parliamentary procedure, and always has been

    Just as it is the bedrock of the Senate’s procedures. I’m sure the people who drafted the “its own rules” language assumed that most of those rules would be based on simple majorities, but so what? What we’re talking about here is whether the Senate can build other structures on top of that bedrock.

    And finally, there’s the logical incoherence of the argument against it.

    The logical incoherence of the argument that “shall make it own rules” means “shall make its own rules?”

  21. joe from Lowell:

    And how does a house determine its rules?

    The Constitution provides not guidance on this.

  22. c u n d gulag:

    I’m saying that the legislative branch not only approves of people for Federal judiciary positions, but can also terminate a jugde via impeachment.

    In other words, while this court decided it had no business in the Senate’s rules, Congress does have the ability to intercede in the judiciary branch.

    And if you look at the record, there are only 15 Federal judges who have gone through the impeachment process – in well over 200 years.

  23. Hogan:

    Show me the rules of procedure anywhere that don’t require a supermajority to end debate.

  24. Craigo:

    When a body with the legislative power to define things legally says something isn’t a tax, then it in fact, for all legal purposes, isn’t one.

    Tell a judge that.

    End-running the constitution while staying narrowly within its letter has a long and proud tradition.

    When you’ve admitted that you’re contravening the
    Constitution, it times to stop.

  25. Murc:

    There is a lot of difference between contravening the Constitution and end-running it.

    I mean, hell, Congress uses its taxing power to get around enumerated powers all the time.

    By your logic, it is unconstitutional for the Congress to use its control of purse strings to get states to do things it doesn’t have the ability to order them to do so directly. The clear intention of things like tying DOT funds to lower speed limits is for Congress to order states around in a way that is otherwise Constitutionally forbidden. I take it you disapprove?

  26. Craigo:

    No provision can be construed to conflict with another. That’s common sense and basic construction.

    The Constitution provides specific supermajority requirements, and assumes majority rule elsewhere.

    It also provides a specific amendment process.

    Somehow, we’ve reached the point where people have convinced themselves that allowing the houses to create rules which require new supermajorities not enumerated by the Constitution is not an alteration of the text.

  27. S_noe:

    I guess I want to quibble on “fundamentally unserious.” A pragmatic loser? Of course. A contestable argument? Absolutely. But there does seem to be a conflict between “determine its own rules” and “a Majority of each shall constitute a Quorum to do Business”.

    I realize this is some angels-dancing shit. But I wouldn’t call the constitutional argument unserious. If nothing else, it points to a logical conflict, doesn’t it?

    On the other hand, if by “fundamentally unserious” you mean “dead in the water,” point taken.

    (But I think the argument that there’s moral/democratic weight to majoritarianism should have some pull.)

  28. joe from Lowell:

    Again, you cannot use one constitutional provision to contravene another.

    Again, there is no Constitutional provision requiring majority votes to end debate or pass bills.

    Constitutional provisions may, indeed, contravene tradition (your argument about how other parliamentary bodies work) and assumptions.

  29. Craigo:

    The Constitution provides not guidance on this.

    Which is why we use the examples I cited and which you’ve ignored because they’re inconvenient to your argument.

  30. joe from Lowell:

    “and assumes majority rule elsewhere” is not a provision of the Constitution.

    Certainly, but actual, black-letter provisions of the Constitution may, indeed, violate traditions and assumptions, if those traditions and assumptions are not, themselves, provided for in the Constitution.

    Let’s make this very simple: what provision of the Constitution does a supermajority for ending debate violate? I want an actual provision. The word “assumed” seems to be merely an emanation from your penumbra.

  31. Craigo:

    Again, there is no Constitutional provision requiring majority votes to end debate or pass bills.

    But there are Constitutional provisions defining those situations where supermajorities are required. Ending debate and passing bills? Not among them.

    Constitutional provisions may, indeed, contravene tradition (your argument about how other parliamentary bodies work) and assumptions.

    You’re evading the point. If there were no textual evidence that supermajorities are considered extraordinary, you’d be correct. But there is, and you aren’t. The houses cannot create new supermajorities when those requirements are already set by the Constitution.

  32. joe from Lowell:

    Which is why we use the examples I cited and which you’ve ignored because they’re inconvenient to your argument.

    I’ve not ignored them; I’ve rebutted them. I’ve pointed out that your “examples” are no Constitutional significance, as opposed to the very plain language authorizing the houses of Congress to ignore your “examples” as they see fit.

  33. Amanda in the South Bay:

    No, I’m aware that Federal judges can be impeached, but why do you think its a good thing that they rarely are?

  34. S_noe:

    I should have emphasized:

    fundamentally unserious on the merits

    My bad.

  35. Craigo:

    No, that’s not my logic at all. I don’t understand what you’re trying to say. Congress has explicit tax and spend powers, and using it in that matter does not conflict with any other provision.

  36. joe from Lowell:

    But there are Constitutional provisions defining those situations where supermajorities are required. Ending debate and passing bills? Not among them.

    What there is instead is this: Each House may determine the rules of its proceedings

    When the Constitution empowers a branch of government to act in a certain sphere, it is authorized to use its own discretion in that sphere, subject only to other restrictions in the Constitution, or those created by law in accordance with other constitutionally-enumerated powers. There are no restrictions in the Constitution on the houses’ power to include supermajorities in their rules of procedure (other than the few narrowly-defined applications of supermajority or majority votes to specific circumstances), and no subsequent laws that act to restrict supermajorities.

    If there were no textual evidence that supermajorities are considered extraordinary, you’d be correct. But there is, and you aren’t.

    There is nothing in the Constitution that limits the power of each house to create only “ordinary” rules.

    The houses cannot create new supermajorities when those requirements are already set by the Constitution.

    By the same reasoning, the houses cannot create new majority rules beyond those explicitly set out in black and white. This reasoning is nonsensical. What does “may set its own rules” mean, except that the houses have the power to decide in those cases not explicitly spelled out? They get to choose the font?

  37. Richard:

    And only seven were convicted. And of those seven, the charges were intoxication while on the bench, taking up arms against the Union, bribery and perjury.

  38. Craigo:

    Let’s add to to the list:

    In addition to arguing that “black-letter” is a phrase of magical power that permits one Constitutional provision to conflict with another, that it’s okay to violate Constitutional structure as long as we agree not to call it that, the people in this thread also throwing out legislative history and basic construction.

  39. Murc:

    Congress has explicit tax and spend powers, and using it in that matter does not conflict with any other provision.

    It does by your logic.

    Congress has the explicit power to make its own rules regarding its own internal conduct. It has chosen to use them in a manner that lets it do an end-run around traditional majoritarian requirements. You say this is unconstitutional, because Congress is using one part of the constitution (its power to define its own rules) to contravene another part (majoritarian rule.)

    Similarly, Congress, because of enumerated powers, has a number of powers over the states and is explicitly forbidden from going outside of those bounds. So it often uses another constitutional provision, the power to tax and spend, in ways that are nakedly and often explicitly designed to contravene enumerated powers.

    By your logic, this would also be illegal.

  40. Craigo:

    There is nothing in the Constitution that limits the power of each house to create only “ordinary” rules.

    Actually, there is: The specific enumeration of those situations where supermajorities are required.

    And your last question is nonsensical. Are you under the impression that voting threshholds are the only elements of rules of order?

  41. dave:

    The arguments for the constitutionality of the filibuster in this thread are very weak.

    It is implicit in the structure of the constitution that any laws or rules made under its authority must also comply with its terms.

    That is to say, just because a law or rule is passed pursuant to the procedural requirements of the constitution, the substance of the law or rule must still be constitutional.

    The Fugitive Slave Act and DOMA and the Endangered Species Act are all validly passed laws since they were enacted pursuant to the procedural requirements of the Constitution. However, that does not end the inquiry. They must also conform to the substantive requirements of the constitution.

    The same is true for the senate rules. The enactment of senate rules is solely within the authority of the senate. However, the substance of those rule must comply with the requirements of the constitution.

    For example, the Senate cannot pass a rule which prohibits any senate member from using the word “god” in a speech or prohibits African American senators from speaking, or abolishes the Senate itself. Such rules would violate the second amendment, first amendment, and Article I, respectively (among others).

    The filibuster, though a validly enacted rule, is not constitutional because it violates the majority rule requirement in Article I.

    I would also add that the phrase “Each house may determine the rules of its own proceedings.” absolutely does not, on its face, preclude a requirement that the rules so enacted not conflict with any other constitutional provisions.

  42. Craigo:

    I’m arguing that otherwise valid uses of enumerated powers cannot violate other enumerated provisions. You’re arguing that this use of the enumerated spending power is outside its scope. Those are two different situations.

  43. joe from Lowell:

    “It’s assumed” is not a provision of the Constitution.

    “It was traditional” is not a provision of the Constitution.

    The empowering sections of the Constitution do not limit the empowered bodies to only use their powers in manners foreseen by the drafters.

    Those actors empowered by the Constitution may utilize their powers as they see fit, even in unanticipated ways, subject to the restrictions found in the Constitution (like the Bill of Rights) or other restrictions that other actors are empowered to draw up (such as Congress using its purse-strings power to restrict the POTUS).

  44. djw:

    This. Craigo’s argument would render killing bills in committee unconstitutional.

  45. rea:

    At least one of them had a strong case for innocence, and is serving in the House of Representatives right now.

  46. joe from Lowell:

    Here is a transcript of the Constitution.

    Please point out “the majority rule requirement in Article I.”

  47. Murc:

    I’m arguing that otherwise valid uses of enumerated powers cannot violate other enumerated provisions.

    … and by this logic, Congress can’t use its taxing power to boss around the states (violating the enumeration of powers) even when that taxing power would otherwise be valid.

  48. rea:

    I notice–none of the lawyers who frequent this site is among those arguing that the filibuster is unconstitutional?

  49. Scott Lemieux:

    No provision can be construed to conflict with another. That’s common sense and basic construction.

    And the filibuster doesn’t conflict with any other provision. It still doesn’t take more than 50%+1 to pass legislation in the Senate. It might take a supermajority to get to that vote, but if that conflicts with the Constitution the committee system is unconstitutional.

    And, of course, the argument that “majority rule” is the “bedrock principle” of the upper house of a bicameral legislature that gives equal representation to Wyoming and California is also transparently wrong.

  50. c u n d gulag:

    I don’t think it’s a good thing, or a bad thing. It is what it is.

    However, when you look at the total body of people (the vast majority of them men) who served, it’s quite a remarkable record.

    Now, what does that say?
    The Presidents and Congresses have done a great job from the beginning of the Republic?
    Or, that they don’t care or do much about what happens on the bench, unless the behavior is so outrageous, that they’re forced to intervene.

    My guess is, the latter.

    But, that may be better than a ton of judges getting impeached everytime there’s a different party in charge of the White House, and/or Congress.

  51. joe from Lowell:

    Actually, there is: The specific enumeration of those situations where supermajorities are required.

    This is completely nonresponsive. When did “extraordinary” become defined as “in violation of specific language found elsewhere?” If you don’t like the standard of “ordinariness” that you raised, then say so. Don’t try to move the goalposts like this and hope nobody notices.

    Anyway, nobody has claimed that the houses can draft rules that violate other provisions found in the Constitution. Rather, we’ve claimed that the houses can draft rules that violate standards that ARE NOT found in the Constitution, like your ethereal majority-rules standard.

    And your last question is nonsensical.

    Either that, or it went over your head. Looking at it, I can’t imagine how you managed to do that. It’s a very clear-cut question: what does the power to set their own rules mean, if it doesn’t mean that they get to decide on those rules not explicitly laid out elsewhere in the document?

    I have no idea where Are you under the impression that voting threshholds are the only elements of rules of order? came from, since I haven’t written a single word that even comes close to suggesting that.

  52. Murc:

    For example, the Senate cannot pass a rule which prohibits any senate member from using the word “god” in a speech or prohibits African American senators from speaking

    I am genuinely unsure of this. The Senate can actually refuse to seat legitimately elected Senators and can expel members from itself based on no other criteria than “cause we said so.” I’m pretty sure it can dictate the behavior of its members within the Senate itself; if it declared that no redheaded Senator could address the full body, that might be valid.

  53. Murc:

    “It’s assumed” is not a provision of the Constitution.

    Well, let’s be fair, joe. Without making certain assumptions, effective jurisprudence would grind to a halt.

  54. Scott Lemieux:

    There’s no constitutional requirement — explicit or implicit — that bills, once introduced, have to be subject to a majority vote. And Article I gives plenary power to the Senate to set its own procedures.

  55. jefft452:

    “the charges were intoxication while on the bench, taking up arms against the Union, bribery and perjury.”

    all at once or on separate occasions?
    :)

  56. Hanspeter:

    Don’t eliminate the filibuster, but make the Senators get up off their fat asses, and even fatter wallets, and explain why something should not be passed

    Another way to turn the filibuster around without changing the supermajority requirement is to flip the purpose of the vote around. Instead of needing 60 votes for cloture and proceed to final voting, make it 40 votes to continue the debate. Make that vote actually happen. As it stands, just the threat of a filibuster knowing you have 40 votes means the default is to continue debate and filibuster the bill. With making the default be “proceed to final vote”, then those 40 votes have to become public and on the record.

  57. joe from Lowell:

    In addition to arguing that “black-letter” is a phrase of magical power that permits one Constitutional provision to conflict with another,

    What provision does it conflict with? Be specific; cite Article and Section, and quote the language.

    I hope that request isn’t too magical for you.

  58. joe from Lowell:

    Last time I checked, the Senate still had a rule that forbade female Senators who are wearing slacks to speak on the floor.

  59. efgoldman:

    If

    there were no textual evidence that supermajorities are considered extraordinary, you’d be correct. But there is, and you aren’t.

    Somebody above already asked you to provide chapter and verse (or article and whatever….) The fact that you haven’t even tried, but continue your ridiculous argument, is proof enough of your error. Why you keep wasting your own time proving how wrong you are…

  60. c u n d gulag:

    I like that.

    Which means it’ll never happen…

  61. superfly:

    So for clarity, you would agree that if the Senate made a rule that said 99 votes are required to pass any bill, that would be legal and constitutional?

  62. Tybalt:

    One of the standard rules of statutory interpretation is that the specific excludes the general. This had two effects in looking at Senate rules.

    First of all, the Senate could not employ its general power to create the rules for its own proceedings, to water down the specifically enumerated supermajority requirements. The specific rules laid down in the Constitution exclude the general power to make procedural rules here.

    However, regarding cloture and the filibuster, it works in the opposite direction. You can, if you like, derive a general rules from the specifically enumerated supermajority requirements a general (though non-textual) rule that a majority shall otherwise govern. What that very broad and inchoate rule cannot do, though, is exclude the specific rule that the Senate (by its rules) can create rules to govern its own proceedings, and I would think it a huge stretch to say that cloture rules or holds or what have you aren’t included in that. Once again, the specific excludes the general, and the Senate can govern its proceedings as it chooses.

  63. Speak Truth:

    …you’re going to have to do better than “Yes” and a snotty attitude.

    Pretty funny coming from the KING OF SNOT

  64. Anonymous:

    And, of course, the argument that “majority rule” is the “bedrock principle” of the upper house of a bicameral legislature that gives equal representation to Wyoming and California is also transparently wrong.

    Actually….NO.
    What Scott is alluding to is the difference in populations. The Senate, as originally conceived, was not a body of the people, but a body to represent the states. That’s why Rhode Island has the same representation as Texas. Of course, this was all fucked up with the seventeenth amendment.

  65. Ken:

    Or one vote. Or none, and any bill proposed automatically passes. Or any odd number of votes. Or a majority, provided at least one Senator with a ‘Q’ in his/her name votes for it.

    I find myself agreeing with joe’s argument, but also troubled that it would allow such rules, the only check being the common sense of the Senators – a dwindling commodity.

  66. L.M.:

    Paging Walter Nixon. Walter Nixon to the white courtesy phone, please.

  67. superfly:

    Yeah, me too, particularly on the dwindling common sense thing.

    There’s no constitutional requirement — explicit or implicit — that bills, once introduced, have to be subject to a majority vote.

    I can’t tell if Scott is trying to be overly clever here with the wording, or it’s just poor wording/construction, but no one is claiming that a “bill, once introduced, have to be subject to a majority vote.”

    The argument is that bills should be subject to a majority vote to pass, and, in addition to the explicit super-majorities defined, there is additional implicit support for that position:

    The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

    Seriously, I feel like we are arguing that the sky is blue, and Scott and Joe et al, are taking contrarian position to be pains in the ass.

  68. fd2:

    Yes.

    It would be [i]bad[/i] to do that, but it would not be unconstitutional.

    Conflating the former with the latter is just engaging in the kind of blind Constitution-worship endemic to Tea-partiers.

  69. Tybalt:

    Sure, but not so as to contradict a specific grant of Constitutional authority.

  70. Tybalt:

    Sure, if you think that democratic vote is an inferior way to determine someone to represent a state’s interests. Most people (they are known as “democrats”, but don’t worry, it’s with a small “d”) generally agree with this.

  71. Scott Lemieux:

    What are you talking about? The filibuster doesn’t change the fact that 50%+1 is needed for a bill to become law. The argument that the filibuster is unconstitutional therefore requires us to believe that all bills that are introduced be given an up-or-down vote, because for any bill delayed killed by any other means would violate the Constitution. It’s not “contrarian” to point out that the Constitution does not explicitly or implicitly require any such thing.

  72. superfly:

    No, it wouldn’t be bad, it would be absurd, and I don’t know what the fuck you are talking about re: “blind Constitutional worship,” you’re the one who is reading the Constitution so literally that you think it is permissible, and constitutional, for the Senate to make a rule that would require 99 or 1 vote to pass a bill.

  73. Jameson Quinn:

    The 3/5 filibuster on laws and nominations is not unconstitutional. It is merely an instance of the Senate setting its own rules, a power it very clearly has.

    However, the 2/3 filibuster on rules changes IS unconstitutional, although the determination of unconstitutionality would be made by the Senate Parliamentarian and not the SCOTUS. A rule to prevent rules changes is the dead hand of the past senate binding the current one. This is doubly true because a separate (and equally unconstitutional) senate rule states that rules carry forward and apply in a new session even before they have been voted on.

    Of course, if it were acknowledged that a simple majority vote was enough to change the rules — in other words, that a nuclear option was always available — then the 3/5 filibuster would lose all its power. Which would be a very good thing; US government has plenty of veto points, and the filibuster is one of the most undemocratic ones and the ones which structurally and historically have had the greatest anti-progressive bias.

  74. Jameson Quinn:

    Practically speaking, of course, I think that they are not likely to rule that it is unconstitutional, even though it is. So I fully support the strongest viable reform at the start of next session, up to and including eliminating it entirely. I suspect that it will be reformed enough to reduce its use, but unfortunately not enough to make it irrelevant. Still, once one reform happens and the majority sees how nice it is, the filibuster’s days are numbered; I’d be surprised if it is still happening even once a session 10 years from now.

  75. Brien Jackson:

    “the Senate to make a rule that would require…1 vote to pass a bill.”

    Take a deep breath, consider how you’ve gotten to this point, and re-evaluate your life choices.

  76. Brien Jackson:

    “However, the 2/3 filibuster on rules changes IS unconstitutional, although the determination of unconstitutionality would be made by the Senate Parliamentarian and not the SCOTUS. A rule to prevent rules changes is the dead hand of the past senate binding the current one. This is doubly true because a separate (and equally unconstitutional) senate rule states that rules carry forward and apply in a new session even before they have been voted on.

    Of course, if it were acknowledged that a simple majority vote was enough to change the rules…”

    This is wrong. A simple majority is enough to change whatever rules you want to change at the beginning of each Congress. The 2/3 requirement applies to amending the rules after they’ve already been adopted by the body.

  77. Jameson Quinn:

    That is the generally-accepted answer of how it actually works. However, if you actually read the senate rules and follow them as written, that is not how it works. They haven’t actually had a proper vote on the rules in decades. So basically, what you’re saying is that everyone knows it’s unconstitutional, so since they could have broken the rules at the start of the session, they have implicitly accepted those rules and so are bound by them.

    Anyway, a 2/3 threshold for changing the rules IS unconstitutional, even mid-session. Say the rules pass at the start of the session by 51 votes, then 2 senators die midsession in some huge crisis, one which galvanizes 62 senators to want to change the rules. A rule which slowed that rule change down would be OK, but one which effectively blocks it altogether is arguably unconstitutional. And anyway, the person who decides whether or not to listen to the kind of reasoning I’m arguing here and rule it unconstitutional is the Senate Parliamentarian, not the SCOTUS. If the parliamentarian rules it unconstitutional, and allows a rules change with 50 votes, then that’s how it is; and I would cheer that result on both the merits and the results.

  78. Mpowell:

    I think craigo has a point here. The senate can’t just decide to ignore the rules for determining who is elected to the senate through procedural shenanigans for example. But scotus is going to give them a lot of slack determining their internal rules and I don’t think the modern filibuster rises above that bar.

  79. Mpowell:

    I think it would be interesting if 51 senators tried to bring a suit on the issue. If they wanted to pass a piece of legislation is the judiciary going to recognize that or not? Not that it would ever happen, but could be interesting.

  80. Tybalt:

    Thank you; that was very lucid.

  81. superfly:

    I hope you’re replying to the wrong person, because I’m not the one claiming that.

  82. superfly:

    The filibuster doesn’t change the fact that 50%+1 is needed for a bill to become law.

    That’s exactly what it does, in reality, and you know that, but you want to make a stupid point, argue straw men, etc.

    The argument that the filibuster is unconstitutional therefore requires us to believe that all bills that are introduced be given an up-or-down vote, because for any bill delayed killed by any other means would violate the Constitution.

    No one is arguing that, you know exactly what the argument is, you keep ignoring it, while loudly claiming you’re not.

    Nor have you answered the simple question, whether you think the Senate can make a rule that 99 votes are required to pass a bill?

    This thread reminds me why I stopped reading LGM for awhile, should probably do so again. Oh well

  83. Eric:

    Say a man hires an architect to design his house, and tells the architect that she can build it any way that she wants, except that the house must have vaulted ceilings in both the dining room and living room. Can the man sue the architect if she also puts a vaulted ceiling in the master bedroom?

  84. IM:

    or 1 vote to pass a bill.

    Voice vote!

  85. R Johnston:

    If 51 Senators report a bill out of the Senate, the House passes an identical bill, and the President signs the bill into law then there’s not a court in the country that would hold that the filibuster rule invalidates the law, or at least there shouldn’t be.

    The same plenary power that allows the creation of the filibuster rule in the first place also allows a majority of the Senate to ignore the filibuster rule if it so chooses.

  86. joe from Lowell:

    The same plenary power that allows the creation of the filibuster rule in the first place also allows a majority of the Senate to ignore the filibuster rule if it so chooses.

    Not really. The power to set their own rules is not the same as the power to ignore them.

    Imagine if the EPA, empowered by Congress to establish air pollution rules, sets a rule that no project that emits chlorine gas will get a NEPA permit. Can the EPA then issue that permit, on the grounds that “the same power that allows the creation of the Chlorine Gas Rule allows the EPA to ignore the Chlorine Gas Rule if it so chooses?” Should “no court in the country” rule in favor of a challenge to the permit?

    In practice, the issuance of permits in violation of the rules that the EPA is authorized to create (and to change) is challenged, successfully, in the courts all the time. The EPA’s rule-making power allows it go back and change its rules, but not to violate them.

  87. R Johnston:

    The vote of a simple majority to report a bill out of the Senate and submit the bill to the House or the President for their own consideration is conclusive proof that the Senate, as sole judge of its own internal rules, has voted by majority vote that the rules were followed and the bill properly reported.

    A simple Senate majority can, at any time, report a bill out and then there’s no one left to contest whether or not the filibuster rules were followed. The House or President might adopt their own internal rules refusing to ratify such legislation unless the filibuster rules were followed, but that would be a matter of Presidential or House rules for consideration of legislation, not Senate rules. The net effect is that a simple majority can, in actual fact, change the Senate rules at any time. The 2/3 requirement to change a rule is a mere custom that has no way to actually be enforced if a Senate majority decides otherwise.

  88. R Johnston:

    Ignoring a rule is, in actual fact, changing the rule. A rule abandoning a previous rule is still a rule. It’s semantic gibberish to say that a majority has the plenary power to enact rules but not to change rules.

  89. joe from Lowell:

    Ignoring a rule is, in actual fact, changing the rule. A rule abandoning a previous rule is still a rule.

    The second sentence is right; the first one is not. Ignoring a rule does not, in actual fact, eliminate that rule. It opens one up to legal challenge for violating the rule.

    If your description was accurate, then many hundreds of successful challenges to the EPA’s actions, based on violations of the EPA’s rules, were based on semantic gibberish.

    You are arguing that “he who makes the rules can ignore the rules.” This has never been how the law works in the United States. A body with the power to establish and change rules must first do so before taking an action that violates an existing rule.

  90. Hogan:

    The same plenary power that allows the creation of the filibuster rule in the first place also allows a majority of the Senate to ignore the filibuster rule if it so chooses.

    Senate rules specify that a motion to suspend the rules requires a three-fifths majority. So, no.

  91. Hogan:

    The question is whether the Senate is a continuing body or a new one every two years. Since in any election two-thirds of the Senate have not had even the opportunity to be replaced, it’s not obvious that the Senate of the 113th Congress will be a different parliamentary body than the Senate of the 112th.

  92. UserGoogol:

    Well technically the Constitution doesn’t say a majority has the power to set rules, it says “the Senate” has the power to set its rules, giving absolutely no guidance to how rules are set, whether by supermajority or submajority.

    If a single Senator decided to play Calvinball and unilaterally change the rules of the Senate, there isn’t really anything written in the Constitution that would declare that rule change invalid. The only thing that would stop that Senator would simply be the pragmatic fact that rules only have force if people listen to them, and nobody would listen to this person unless they accepted the validity of the rule change, which they wouldn’t.

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