The Filibuster Rule: Past Practice Should Not Preclude Proper Process

Another biennial opening of Congress has come and gone, with no meaningful responsive to the recurring chorus of editorial and political suggestions to the Senate that it reconsider its filibuster rule. No action has been, or will be taken in the interest of allowing majority rule to prevail in the nation's most prestigious deliberative body.

The Senate, which elects one third of its membership every two years, considers itself to be a continuing body, and its rules continue in effect from term to term.

The seating of a new Congress provides an opportunity to reconsider the Senate's rules, although in fact the Senate could act at any time. But it will not. Too many entrenched interests depend on the obstruction the filibuster rules permit, and both parties know they will be out of power periodically.

The Senate's rules are an affront to the concept of majority rule, and offend basic constitutional principles. In the present climate, as a practical matter, it takes 60 votes to pass a bill. That is not the plan of the Constitution.

The Constitution is extremely specific when an action requires a supermajority. Conviction and removal from office after impeachment requires a two-thirds vote in both houses. (Article I, Section 3, Clause 6) Overriding the veto of a bill also requires a two-thirds vote in each house. (Article I, Section 7, Clause 2) So that provision cannot be evaded by using a word other than "bill." The presentment clause also allows veto and override of an "order, resolution or vote." (Article I, Section 7, Clause 3) Ratification of a treaty requires the concurrence of two-thirds of the senators present.

Assuring that the Constitution would not be subject to frequent amendment was accomplished by the requirements of Article V - two-thirds of each house of Congress and three-quarters of the states. On the minimum side, it takes 20 percent of the members of either house to require that the vote on any question be "entered on the Journal." (Article II, Section 4, Clause 3) The founders selected matters of the most serious import to be difficult to achieve. These provisions are central to the checks and balances in the Constitution.

Passage of a bill is subject to no such heightened approval. The Presentment Clause in Article I, Section 7 provides that: "Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes law, be presented to the President of the United States." This language precedes the veto provisions. There is no question that it requires a simple majority vote for a bill to be adopted by either house. The Constitution provides that the vice president shall preside over the Senate, "but shall have no vote, unless they be equally divided," (Article I, Section 3, Clause 4), a clear requirement of a simple majority to act.

But the Senate has arrogated to itself an amendment of the Constitution requiring, as a practical matter, that 60 of 100 votes are needed to pass a bill. The imposition of this requirement on bringing to the floor judicial nominations is a cause of the current excessive number of vacancies in the federal courts.

While Article I, Section 5, Clause 2 states that "[e]ach House may determine its Rules of Proceedings...," requiring 60 votes is not a "Rule of Proceeding," but a substantive change in the lawmaking process.

In "Master of the Senate," the third volume of his biography of Lyndon Johnson, Robert Caro details the evolution of the cloture rules. Originally a weapon used primarily by the South to defeat civil rights legislation, the filibuster has become a misnomer. It has evolved into a flat out rule that without 60 votes in support, nothing can come to the floor of the Senate.

And the rule protects itself against amelioration. A two-thirds vote is required by the Senate rules to amend the Senate rules. Change from within is unlikely.

The U.S. Supreme Court used the words of the Constitution to set aside action by the House of Representatives in expelling a member. In 1967, the House refused to seat Adam Clayton Powell Jr. despite his constituents having returned him on the basis of corruption charges. It relied on the constitutional provision that "each House shall be the Judge of [the] Qualifications of its Own Members." (Article I, Section 5, Clause 1) The Court held that questions of membership in the House are governed only by the formal requirements of age, citizenship and residence set forth in Article I, Section 2, Clause 2. Powell v McCormick, 395 U.S. 486 (1969).

The House's argument that the membership issue was a political question, outside the scope of judicial inquiry, was rejected. "Our system of government requires that the federal courts on occasion interpret the Constitution in a manner at variance with the construction of the document given by another branch. The alleged conflict that such an adjudication may cause cannot justify the courts' avoiding their constitutional responsibility." Powell, 395 U.S. at 549.

A court decision affecting membership in the legislative body, when considered as an intrusion by the judiciary into the legislative branch, is entirely comparable to evaluation by the courts whether legislative rules, or their application, are consistent with the constitutional mandate.

Discussions and negotiations on reform of Senate procedures occurred at the beginning of the current 2011 session. They resulted in modification of the entirely unjustifiable rules on Senate holds, and agreements between the leaderships on peripheral matters. They did not, however, affect the filibuster rules, which remain as a roadblock to legislative action.

Majoritarianism is not an absolute rule in all circumstances, and the Supreme Court has authorized divergence in some state practices. But it should be a mandate in the most significant area of all, how our laws are enacted. A legislative process that is subject to minority obstruction is not one best suited to responsive governance. Past practice should not preclude proper process, and our Constitution should be read to require the legislative branch to follow principles of majority rule in all cases other than those where the document itself calls for a higher degree of concurrence.

Charles S. Doskow is dean emeritus and professor of law at the University of La Verne College of Law in Ontario, and a past president of the Inland Empire Chapter of the Federal Bar Association.