Can Vice President Kamala Harris save America end the filibuster by declaring it unconstitutional? Erwin Chemerinsky and Burt Neuborne write in the Los Angeles Times that it is, that she can, and that she should.
Op-Ed: The filibuster is unconstitutional. Here’s how Vice President Harris can take it on.
There is a clear next step in changing the Senate filibuster: Vice President Kamala Harris, as presiding officer of the Senate, can — and should — declare the current Senate filibuster rule unconstitutional. This would open the door for discussions on a new rule that would respect the minority without giving it an unconstitutional veto.
I didn’t know she could do that. Erwin Chemerinsky is dean of the UC Berkeley School of Law. Burt Neuborne is the Norman Dorsen Professor of Civil Liberties at the New York University School of Law. Seems like they’re qualified to give an opinion worth listening to.
In 1957, Vice President Richard Nixon, sitting as presiding officer of the Senate, issued two advisory opinions holding that a crucial provision of the Senate’s filibuster rule — requiring two-thirds vote to amend it — was unconstitutional. Nixon’s constitutional determination was reaffirmed by subsequent vice presidents Hubert Humphrey and Nelson Rockefeller. In fact, it was this ruling that allowed both the Democratic-controlled Senate in 2013 and the Republican-controlled Senate in 2017 by a simple majority vote to eliminate filibusters for all executive and judicial nominees.
Harris possesses the same power to rule that the current version of the Senate filibuster, which essentially establishes a 60-vote supermajority rule to enact legislation in the Senate, is unconstitutional because it denies states “equal Suffrage in the Senate” in violation of Article V of the Constitution.
They go on to cite Wyoming’s 580K citizens having the same representative weight in the Senate as California’s 40 million residents. The 60-vote filibuster makes this imbalance even worse. They did the math: 41 Senators representing 1/3 of the US population can outweigh 59 senators representing 2/3s.
They suggest the VP should rule the filibuster unconstitutional as it requires a 60 vote supermajority.
Give it a read, please. What do you think the Vice President should do?