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In the wake of the shameful and immoral filibuster of a watered down background check bill, it's time for Harry Reid and the rest of the Democratic majority to ask the title question, and come up with the right answer.  

Before I start, let me clarify. I don't see how, as a practical matter, the question of the constitutionality of the filibuster could ever come before a court, presumably the Supreme Court. In practice, the Senate itself must settle the matter, and Harry Reid must lead the way (with special emphasis on the word "lead"). My layman's opinion rests on how I believe senators should interpret the Constitution. It is merely a layman's opinion—nothing else.

The validity of the filibuster is said to rest on the authority of the Senate to make its own rules. (Article I Section 5)

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member.
Why does the Constitution mention rules? Common sense dictates that there must be rules, and that the Senate itself must write those rules. The answer, it seems to me, is to establish the "meta rules" by which the Senate operates.  The default option must be that a simple majority writes Senate rules. If the Constitution meant the Senate to require, say, a two thirds majority to write or change the rules, it would have said so explicitly, as it does in expelling Senate members. This is what seems to be behind the phrase "the Constitutional option". A simple majority determines the rules.

The Constitutional option is well named. We simply must accept it as an immutable underlying principle, else we could face a paradox. Suppose the senate adopted a "rule" saying that any action by the Senate requires a 75% vote before it takes effect. Once this rule is adopted, it cannot be changed unless 75 senators agree to change it. But what is it that makes the simple majority default rule so special? Let's explore.

Article I, Section 7 says in part:

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a law, be presented to the President . . .
The word "passed" in this clause is nowhere defined in the Constitution as specifically meaning "by a simple majority vote", yet this is universal interpretation.

The principle that a governing body makes decisions by a simple majority vote is thoroughly entrenched in our culture. We automatically assume this principle as the default, whether the body is the Paradise, CA City Council, the Elks Club of Baton Rouge, the State Senate of Vermont, or the South Bend Bridge Club. Decisions are made by majority vote; this is bedrock democracy. When a decision must be arrived at, only the "majority rules" principle can guarantee that a decision will be the result.

Does the Senate rules clause have limits? The answer must surely be Yes. Let us suppose the Senate made this rule:

Fifty one votes shall be sufficient to satisfy the "two thirds" requirement to override a presidential veto.
Clearly, the Senate cannot make such a rule, because it contradicts arithmetic. Let's try again:
A vote to override a presidential veto shall be made by roll call vote as stipulated in the Constitution. The judgement of the Senate majority leader as to whether a particular senator has voted "yea" or "nay" shall be final.
This rule contradicts the plain meaning of the English word "vote". (Incidentally, if you think this is a frivolous example, you haven't been following Michigan politics.)

Article I Section 3 states

The Vice President of the United States shall be President of the Senate, but shall have no Vote unless they be equally divided.
Again, the Constitution is using the language of arithmetic ("equally divided") to prescribe the actions of the Senate. The filibuster rule, no matter how it's worded, in fact, contradicts this clause and deprives the Vice President of this constitutionally defined power. All by itself, this demonstrates that the filibuster is unconstitutional.

It's certainly possible to disagree with this argument on technical grounds. The argument can be made that the filibuster is a debate tactic rather than an explicit power to veto a bill or nomination. It rests on the principle that senators, in their deliberations, are entitled to speak to the entire body in order to persuade other senators to their side of the issue being considered. I am using the word "debate" to mean what it means to speakers of everyday English. For the Senate to claim that the filibuster is a debate tactic, rather than an explicit power to veto, contradicts the meaning of the English word "debate". According to present Senate rules, there is not even the theoretical necessity for any activity that corresponds to "debate". This is like stipulating that a senator is present for quorum purposes when that senator is actually playing golf. Logically, the Senate may not make rules that contradict the ordinary meaning of English words. Calling the filibuster a debate tactic doesn't make it so.

Another attempt to justify the filibuster is to argue that it is merely procedural rather than being a veto. The answer to this argument is that it involves a contradiction. We can call a duck a goose, but that doesn't make it a goose. If it walks like a veto, and quacks like a veto, then it's a veto.  

This Wikipedia article gives a good overview of the history of the filibuster. It shows that the filibuster question is extremely complex, both legally and politically. And even if the filibuster didn't exist, there are a variety of parliamentary tactics that can delay any action by the Senate. With just the threat of delaying tactics, the minority can extract significant concessions from the majority on matters of less than overwhelming importance. This is all part of the give and take that is politics, and giving the minority a modicum of leverage is certainly, at least in my view, good governance.

Giving a minority veto power over anything the Senate does contradicts the bedrock principle of democracy. I argue that the Senate may not contradict this principle because it is an intrinsic part of the Constitution, and indeed, of democracy itself.

Just as an example, consider this scenario: A Supreme Court justice retires or dies and the President nominates a replacement. The minority in the Senate routinely filibusters that nomination, and every nomination subsequently made. Their hope is that someday they will gain the presidency and can fill that vacancy themselves. Can you confidently say that the Senate would never do this? Is there some sort of "gentleman's agreement" to prevent it? Good luck with that.

I argue that neither house may constitutionally require a super majority for any particular action. Only the Constitution itself can impose a super majority requirement, as it does in a number of instances. In effect, the Constitution has preempted the use of the super majority. The filibuster, as it currently exists, is therefore, in this layman's opinion, unconstitutional.

Please note that nothing in my argument speaks about the filibuster in its original form of actual extended debate, which is much different from the filibuster as it exists today. As long as the rules of the Senate provide for the eventual decisions by a simple majority, I can accept the filibuster as a debate tactic. I might well disagree on the rules that are adopted for the "talking filibuster", but not on Constitutional grounds.

As noted in the intro, the Supreme Court is highly unlikely to ever consider the question, and the Senate is therefore at liberty to do as it pleases. The fact that Americans hold the Congress in such low esteem seems not to matter at all. The fact that the Senate has adopted rules that contradict the clear meaning expressed in the Constitution seems not to matter either. It is a mystery to me that an overwhelming majority of the public hold Congress in low esteem, yet return them to office every two or six years. We must change this.

What are we Democrats afraid of? Do we believe for a moment that if the tables were turned the Republicans would retain the filibuster? We already know what a "gentleman's agreement" with a Republican is worth. We Democrats (Are you listening, Harry?) must do the right thing and rid the Senate of this rule.

Originally posted to Tim DeLaney on Sun Apr 28, 2013 at 08:00 AM PDT.

Also republished by Community Spotlight.

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