The Senate Filibuster: The Politics of Destruction

The notion that the Framers of the Constitution intended to allow a minority in the U.S. Senate to exercise a veto power over legislation and presidential appointments is not only profoundly undemocratic, it is also a myth. The overwhelming trend of law review articles have assumed that because the Constitution grants to each house the power to make its own rules, the Senate filibuster rule is immune from constitutional attack. This Article takes an opposite position based on the often overlooked history of the filibuster, the text of the Constitution and the relevant court precedents which demonstrate that the constitutionality of the Senate filibuster rule is not, as many have assumed, a political question that is beyond the jurisdiction of the federal courts.This Article proceeds in four parts. Part I traces the history of the filibuster, documents the recent surge in filibusters and explains why the rules of the Senate, including the filibuster rule, cannot be amended by a simple majority vote as can the rules of the House of Representatives. The Senate filibuster rule is responsible for much of the partisan gridlock in Congress, and has replaced majority rule with a tyranny of the minority. The Senate is incapable of reforming its rules for the same reasons that state legislatures and Congress refused to reform of the apportionment of state legislative and congressional districts. If reform is to come, it will not come from within the Senate, and can only come from the courts as occurred in the case of congressional and state legislative districts, the one-house veto, and the line-item veto cases.Part II examines the historical evidence that reveals that there was no “right” of unlimited debate at the time the Constitution was adopted and that the filibuster is nothing more than an unintended consequence of a decision by the Senate to delete the previous question motion from its rules in 1806. That decision was based on the naive assumption that the rule was unnecessary because Senators were gentlemen who would never attempt to obstruct the business of the Senate by abusing the privilege of debate. This Part examines the filibuster in the light of the debates at the Federal Convention, the Federalists Papers and the express language of Article I the Constitution all of which were premised on the democratic principle of majority rule. When the Framers of the Constitution intended to condition action on a vote or more than a simple majority of the House or Senate, they did so expressly in six carefully defined exceptions – and significantly rejected the only proposals at the Federal Convention that would have prohibited a simple majority from passing legislation prior to its presentation to the President. Although defenders of the filibuster argue that the Constitution gives each house the power to make its own rules, this power is not absolute. The Supreme Court ruled over a century ago that this rule-making power does not include the power to adopt rules that violate other provisions of the Constitution. Finally, this Part also argues that Senate Rule V, which provides that the rules of the Senate to continue from one Senate to the next and prohibits the Senate from amending its own rules without a two-thirds vote, is also unconstitutional.In Part III, I confront the skeptics who contend that the federal courts are barred by the separation of powers and the political question doctrines from ruling on the merits of the constitutionality of the rules of the Senate. The Supreme Court ruled in 1892, however, that the question of whether a House rule violated other provisions of the Constitution was a matter for the federal courts. Part III also addresses the issue of standing on which previous challenges to the Senate filibuster rule have foundered. This Part demonstrates that there are a number of potential plaintiffs with standing, including the Vice President, sitting members of the Senate and the House, individuals who would have been direct beneficiaries of measures that passed the House but died in the Senate, presidential appointees whose nominations were denied a confirmation vote as a result of actual or threatened filibusters, and organizations such as Common Cause. These individuals and entities have all been directly injured and would have standing to challenge the Senate filibuster rule. Part III also explains that the courts are fully capable of granting complete relief without “rewriting” the rules of the Senate, simply by the entry of a declaratory judgment declaring the supermajority vote portions of Rule XXII unconstitutional. Part IV address the common arguments espoused in favor of the filibuster, such as the contention that it prevents the passage of hastily adopted legislation, promotes compromise, and prevents the “tyranny of the majority.” I also address the unfounded contentions that “we have always had a filibuster” and “it’s only a rule of procedure.” Lastly, I answer the argument that the “remedial discretion” doctrine, a doctrine unique to the U.S. Court of Appeals for the D.C. Circuit, would doom any legal challenge to the filibuster. The filibuster is unconstitutional. The arguments to the contrary are weak. And the courts have both the power and duty to strike down the Senate Rules that conflict with the Constitution.