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The Filibuster and Its Discontents (Part I)

           Now that the Massachusetts election is over, I would like to turn my attention to an opinion piece that appeared in the New York Times last week.  In that article, Thomas Geoghegan argues that the Senate filibuster violates the Constitution.  In brief, his argument is (1) as it currently operates, the filibuster requires a 60 vote supermajority to pass any contested bill; (2) the Constitution implicitly provides that a simple majority is sufficient to pass a bill; and (3) therefore the filibuster is unconstitutional. 

            This is an old argument, and it suffers from certain well-understood weaknesses.  First, the filibuster does not in fact require a supermajority to pass any bill.  Instead, it requires a supermajority to proceed to a final debate and vote on passage.  Second, it does not apply to “any contested bill” since the reconciliation process allows a significant category of budget-related bills to avoid the filibuster.  Third, as Catherine Fisk and Erwin Chemerinsky note in a 1997 law review article on the filibuster, the Constitution is silent on the filibuster and on the voting requirements for final passage of a bill.  Geoghegan argues that the presence of specific supermajority requirements in the Constitution (e.g., for ratifying treaties, overriding presidential vetoes and expelling members) means that all other actions must be taken by simple majority vote.  However, Fisk and Chemerisnky point out that “[i]t is equally consistent with the text to read it as requiring supermajority votes in at least these instances, but leaving it up to Congress in other situations to decide the required vote margin.” 

            There is also a more fundamental analytical problem with a constitutional attack on the filibuster.  It can be seen by asking how the Framers might have drafted a constitutional provision prohibiting supermajority rules such as the filibuster.  They could have provided, for example, that “every bill receiving the approval of a majority of either House shall be deemed passed by that House.”  But how would one determine which bills have the “approval” of a majority of the legislative body?  There are an infinite number of possible bills that could be presented to the body for approval, and there is no way that a legislature could vote on all of them.  And the fact that a legislative majority would be willing to vote for a particular bill does not mean that bill most closely reflects the majority’s preferences because the majority might prefer an alternative bill (or the alternative might be supported by an even larger majority). 

            Given these fundamental facts about the legislative process, there must of necessity be gate-keeping rules to determine which bills actually get presented to the legislative body for a final up or down vote.  Such rules exist in the “majoritarian” House of Representatives, as well as in the Senate.  A principal example is the committee system, which enables small minorities, or even a single committee chair, to block legislation that might be favored by a majority of the chamber.  Similarly, in the House the leadership has nearly total control over the legislative agenda, making it almost impossible for any legislation it opposes to reach the floor. 

Because there has to be a mechanism by which a legislative body sets its agenda and determines what bills will be considered for final passage, it is difficult to see how one would formulate a constitutional rule to prevent minorities from using this mechanism to block legislation that they oppose.  One could provide, in a formalistic manner, that supermajorities cannot be required in a vote on final passage of a bill, but this would not prohibit the filibuster, which does not apply to votes on final passage.  (Ironically, it would prohibit a House rule that requires a supermajority for passage of federal income tax increases—I will discuss the constitutional issues related to this rule in a later post).   

Of course, if one had a means of defining a particular legislative measure that must be considered, it would be possible to require that this measure receive a final up or down simple majority vote.  Thus, for example, the argument that the Constitution requires the President’s nominees to receive an up or down vote is at least intellectually defensible (although, IMHO, unpersuasive) because the President defines the measure through his nomination.  This still leaves undefined the time period within which the final vote must take place, but one could argue that the Constitution requires that the vote take place within a reasonable time of the nomination.  In the case of general legislation, however, there is no constitutional definition of measures that must be considered, nor a starting time for consideration, much less a time frame within which consideration must take place. 

The Constitution does provide that the President shall “recommend” to the Congress “Consideration [of] such Measures as he shall judge necessary and expedient,” but it doesn’t require that the Congress actually consider them.  That this is no oversight is suggested by the fact that the Framers elsewhere did direct Congress to consider certain measures.  When the President returns a vetoed bill to the House from which it originated, Article I provides that such House “shall  . . . proceed to reconsider it.”  Similarly, if two thirds of that House agree to pass the bill, it is to be sent to the other House, “by which it shall likewise be reconsidered.”  Interestingly, however, Congress has not interpreted this language to require an actual vote on overriding a veto, and, according to CRS, “[i]t is not unusual for Congress to make no effort to override a President’s veto if party leaders feel they do not have sufficient votes.” 

In short, there is simply no intellectually coherent way to require legislative bodies to consider or pass all legislation that may be favored by the majority.  Thus, the filibuster cannot be “unconstitutional” in the simple sense suggested by Geoghegan.  There are, however, other and more substantial arguments about the filibuster, to which I will turn in future posts.

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