The Constitutional Status of the Filibuster

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Kevin Drum says filibustering is unconstitutional:

In any case, I continue to think the filibuster is unconstitutional. The fact that certain types of legislation (treaties, constitutional amendments, veto overrides, etc.) specifically require supermajority votes is evidence that the framers assumed that ordinary legislation should be passed by majority vote. Assumed it so strongly, in fact, that they never seriously considered the possibility that they had to spell it out.

Until I get the Supreme Court to agree with me, of course, this doesn’t matter. But I still think it’s true.

I think the real point here is that it doesn’t matter what the Supreme Court thinks. The Supreme Court can’t rule on questions of Senate procedure. This is what the “political question” doctrine was built for. But the flipside of that is that, as I’ve said before, if Joe Biden, Harry Reid, and 49 other Senators want to change the filibuster rule or deem a health plan eligible for reconciliation or whatever else they like nobody can stop them. The Senate itself is the only adjudicator of its own procedures. The reason majorities hesitate to empower themselves this way is that even though the filibuster is against the transient interests of the current majority it serves the individual interests of each senator by increasing the worth of his vote.

I would say the key piece of evidence for Kevin’s interpretation of this is that the initial draft of the rules allowed for cloture on majority vote. Then during an 1806 revision of the rulebook, the cloture motion was scrapped on the grounds that it was never used and therefore unnecessary. Nobody was contemplating the creation of a supermajority requirement.

Indeed, the whole idea that the cloture rule constitutes a supermajority requirement is quite novel. Consider this account of the “court packing” fight in William Edward Leuchtenburg’s The Supreme Court Reborn:

“The best guessing here,” wrote Raymond Clapper in his column, “is that the new . . . court enlargement bill . . . will get thru,” while the Washington bureau of the Portland Press Herald in rock-ribbed Republican Maine reported: “General opinion is the substitute will pass, and sooner than expected, since votes enough to pass it seem apparent, and the opposition cannot filibuster forever.”

Privately, FDR’s foes conceded that these reckonings were correct. On July 7, the morose Republican Senator Hiram Johnson informed a friend: “They have the votes at present to put it over.” A confidential tally sheet set numbers on that conclusion. In an estimate prepared for the leading lobbyist against the Court plan, Frank Gannett, the Nebraska Senator Edward Burke revealed that if the roll were call right away, FDR would wind up the winner, 52-44.

Of course the court packing plan was ultimately defeated. But it was defeated because the tide turned and opponents had a majority on their side. The filibuster was seen as a potentially useful delaying tactic, but not a means by which the fight could be won.