The Unconstitutionality of the Filibuster
This article has been published in the Connecticut Law Review, vol. 43, no.4 (May 2011). It is available in the Cornell Law Faculty Publications series.
This Article, written for the Connecticut Law Review's 2010 "Is Our Constitutional Order Broken?" symposium, argues that the filibuster, as currently practiced, is unconstitutional. Part I describes the modern filibuster. Although the filibuster is often discussed in terms of "unlimited debate," this Part argues that its current operation is best understood in terms of a 60-vote requirement to pass most bills and other measures through the Senate. Part II presents a relatively straightforward structural argument that this supermajority requirement for most Senate business is unconstitutional. This Part argues that the words "passed" in Article I's description of the legislative process; "determine" in the Rules of Proceedings Clause; and "consent" in the Appointments Clause must be understood to contain an implicit premise that a determined and focused legislative majority must be able to get its way in a reasonable amount of time. Or, to put it differently, the Constitution cannot countenance permanent minority obstruction in a house of Congress. Part III responds to the most prominent counterarguments. First, it rejects the counterargument from plenary cameral rule-making authority, arguing that rules made pursuant to this authority still cannot run afoul of the structural principle described in Part II. Second, it rejects the counterargument based on historical pedigree. Surveying the history of the House of Commons, the House of Representatives, and the Senate, it finds no longstanding tradition in Anglo-American legislatures of indefinite minority obstruction. And third, it rejects the counterargument that legislative entrenchment is unproblematic. Finally, Part IV suggests choreography for eliminating the filibuster. It begins by noting that this is not a matter for Article III courts; the arguments here are - and must be - addressed to constitutionally conscientious Senators. It then suggests that the filibuster need not be eliminated at the beginning of a new Congress; if the filibuster is unconstitutional, then the presiding officer may so rule at any time, and the Senate may uphold that ruling by simple majority. Finally, it notes that the filibuster need not be replaced with a simple majority cloture rule, and it suggests potential alternatives.