The filibuster is unconstitutional, an attempted argument.

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Monday November 23, 2009 · 8:22 PM PST

2009/11/23 · 20:22

I'm not entirely sure that this argument is justiciable in the federal courts, but the line item veto was. At least the denial of a law by a Constitutionally flawed process can confer standing. But… I have never read this argument before. I have a tendency to come up with arguments and other bright ideas long after other people do. But anyway, here it goes.

The original intent of the U.S. Constitution was for a majority vote in the U.S. Senate, and it says it right in the text:

The Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided.

—Article 1, Section 3, cl. 4

We commonly know this as the reason that the party who holds the office of the Vice Presidency only needs 50 votes to pass something in the Senate. But what I'm reading there is the tie-break to pass a vote for a piece of legislation should occur if they are equally divided, i.e. 50-50, not if they are 60/40.

Counterargument on the flip.

Of course the counterargument is that Article I, section 5, cl. 2 says that each house shall "may determine the rules of its proceedings." And so, "cutting off debate," which is a parliamentary procedure can be subject to a 3/5ths vote. But I think it's apparent from the foregoing that they never interpreted this to mean that there would be a supermajority requirement to pass any or all laws.

In fact, according to the infallible Wikipedia, there was not even an attempt to filibuster until after the era of the founders passed, until the 1830s. Sometimes, the precedent set by early Congresses is good evidence for original intent, because the same people who drafted the damn thing were in Congress. Not in this case.

I googled 'filibuster "unless they be evenly divided"' and did not see this anywhere else.

No, I have no idea how to get standing for this if there's no evidence that a final vote would have been ≥50+VP unless maybe you have public statements and a cloture vote. Yes, I understand this is arguably nonjusticiable.

But I believe that the argument for the nuclear option was that the Senate could only give "advice and consent"—which was an argument on Constitutional grounds to be made by a ruling from the Chair, Dick Cheney.

So I don't see why Biden could (not likely, but...) say that delaying a vote is out of order.

I'm just putting this out there. I doubt anyone will ever do it or anything.

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