The Filibuster and Its Discontents (Part II)

           In my last post I endeavored to show that the Constitution does not, and indeed cannot, prohibit congressional rules that allow minorities to block legislation.  The Constitution explicitly grants to each House the power to determine the rules of its proceeding, and the exercise of such power inevitably involves giving minorities the power to bottle up, delay, or outright veto proposed legislation. 

            Filibuster opponents, however, try to distinguish the filibuster from other congressional rules that enhance minority power.  Geoghegan hints at such a distinction when he suggests that the “old cloture rule” was more constitutionally acceptable because “if senators wanted to stop a vote, they had to bring in the cots and the coffee and read from Grandma’s recipe book for chicken soup until, unshaven, they keeled over from their own rhetorical exhaust.”  In other words, the old cloture rule was a delaying mechanism, but, Geoghegan claims, the current cloture rule is “in effect” an absolute veto on laws that lack supermajority support.    

            This turns out, however, to be a distinction without a difference.  The change in practice Geoghegan describes is not the result of any change in the cloture rule itself (the old cloture rule actually required a larger supermajority to end debate), but stems from extraneous factors.  The most important of these is the massive increase in the Senate’s workload, as well as other demands on the time of individual Senators.  As observed in Wawro and Schicker’s 2006 treatise, Filibuster, “filibustering has become costless for bill opponents for the simple reason that the opportunity costs of waiting out a filibuster have become overwhelming when senators are confronted with extraordinarily tight scheduling constraints.”   

            Simply put, the change deplored by Geoghegan and other filibuster opponents is the result of the fact that the Senate is no longer willing or able to tolerate the amount of time consumed by real filibusters.  It is difficult to see how that fact supports a constitutional challenge to the filibuster itself.  One might as well argue that it is “unconstitutional” for the Senate to take lengthy recesses because otherwise it would be able to pass more contested legislation. 

            To understand the issue better, lets take a simple hypothetical.  Suppose the Senate had a rule stating that any presidential nominee would be deemed rejected unless the confirmation vote were unanimous.  In other words, any single Senator would have an absolute veto with respect to nominations.  If one accepts the premise that the Constitution requires such decisions to be made by majority vote, then this absolute veto rule must be unconstitutional. 

            Now lets change the rule slightly.  Instead of giving each Senator an absolute veto, allow each Senator to place a hold on any nomination.  The effect of the hold is to require that the nomination be held in abeyance until an appointed day, immediately prior to adjournment sine die, on which contested nominations are to be debated.  The Senate will then take up such nominations beginning with those that have a single Senator objecting, proceeding to those to which two Senators object, and so on.  There is not enough time to consider all of the contested nominations, however, so those that have substantial opposition (say more than ten Senators) are never considered. 

            This hypothetical hold rule might be terrible policy, but how could it violate the Constitution?  True, the rule “in effect” allows small groups of Senators to veto nominations.  But nothing in the Constitution tells the Senate how long it must stay in session (other than requiring one meeting a year), what items of business it must take up while it is in session, or how to prioritize among different demands on its time.    So unless the Senate has a constitutional obligation to stay in session long enough to debate and vote on every nomination, the rule would seem to pass constitutional muster. 

            The analysis is the same for the filibuster.  Like the hypothetical hold rule, the filibuster does not change the vote required for final passage of the bill; it just makes it extremely time consuming to consider a bill that is opposed by more than 40 Senators.  Since it is neither required nor possible for the Senate to vote on all legislation, it must decide how to prioritize the time that it has.  The fact that the Senate is unwilling or unable to spend the time required for a real “Mr. Smith goes to Washington” filibuster is simply not a problem of constitutional dimension.