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Is the filibuster unconstitutional?

If the filibuster and its accompaniments are constitutionally-suspect, as seems so, what can be done to remedy them and what results can be sought?

Rep. Cori Bush speaking during a news conference outside the U.S. Capitol about efforts to end the Senate filibuster on April 22, 2021.
Rep. Cori Bush, D-Missouri, speaking during a news conference outside the U.S. Capitol about efforts to end the Senate filibuster on April 22, 2021.
REUTERS/Erin Scott

The filibuster, the device that has been adroitly used with growing and effective frequency by Republicans in the United States Senate to thwart Democratic promoted initiatives, is coming under increasing scrutiny.

The critical observation is well-deserved for the unwritten arrangement that it prevents legislation from advancing to the floor of that body without the consent of a super-majority consisting of three-fifths of the solons. The filibuster has impeded many measures that have widespread public support within the Biden administration’s agenda, including matters like abortion, gun safety, voter protection, climate initiatives and a host of other matters.

Resort to the filibuster with such frequency has made Congress – or at least the Senate side of it – dysfunctional. This impediment has led to many suggestions from political quarters and other sectors to overcome it in the short-term for particular issues, like reproductive rights, Supreme Court expansion and other hot-button topics. But most of them are ineffectual, impractical or risky if composition of the Senate changes and results in a GOP majority.

Seeking a more long-term, permanent solution, some are questioning whether the filibuster is constitutional, recalling a phrase of Supreme Court justice and post-World War II Nazi Nuremberg prosecutor Robert Jackson famously uttered in 1949 in a dissenting opinion in Terminiello v. Chicago, that the Constitution is not a “suicide pact.”

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Examining evolution

There are several reasons why the filibuster might not pass constitutional muster. Before examining them, a brief look at its conception and evolution is warranted.

The arrangement, derived from a Danish word for “piracy,” was born in the mid-19th century, largely due to sectional issues over slavery. But it raised its head in other contexts, too, like the fight over the National Bank, a bête noire of President Andrew Jackson.

In its early years, it was utilized in both houses of Congress, allowing the solons to speak at length on their respective floors on any matter they chose, relevant or ridiculous, to delay, advance, support or impede legislation.

By the turn of the 20th century, the House, based on population, had grown so large that the unlimited rhetoric and ranting was dispensed with in favor of prescribed speaking limits, usually 5-10 minutes or less per member. Its rules today allow 15 minute perorations by each member before each recorded vote. But the indulgence is usually limited to a small number of members, lest all of them take up a week if every member participates. But they also are each allowed a one-minute presentation, limited to 300 words prior to or after official sessions. Meanwhile, the Senate remained a sanctuary of stability, keeping the tradition it had helped create in force.

President Woodrow Wilson, after unsuccessfully urging the Senate to approve his plan to arm ships prior to the entry of the U.S. into World War I, denounced the Senate as a “the little group of willful men” who “representing no opinion but their own, have rendered the great government of the United States helpless and contemptible.” Wilson was correct, at least in this country, as the filibuster has no known parallels in other state legislative bodies, including here in Minnesota.

Cloture considerations

Heeding his call, in 1917 Congress adopted a practice called cloture, now embodied in its Rule 22, which allows the Senate, upon vote of two-thirds of its members, reduced in 1975 to 60, three-fifths of the body, following a petition by 16 of them, to limit debate on a measure to 30 hours, restricted to “germane” remarks, not the kind of free-range exercise portrayed by James Stewart as a naive but idealistic Senator in the 1941 movie classic “Mr. Smith Goes to Washington.”

The reduction of cloture to the 60-member threshold effectively ended the filibuster’s heyday, which had included the 57-day peroration led by South Carolina Senator Strom Thurmond, then a Democrat later turned Republican. He made that prolonged effort opposing the 1964 Civil Rights Act, which ultimately was adopted by the body, enacted into law, and upheld in 1964. Thurmond’s filibuster, incidentally, succeeded in knocking out the provision in the legislation that would have made lynching a Federal crime, a proposition dating back more than half a century and not brought to fruition until earlier this spring by enactment of the Emmett Till Anti-Lynching Act.

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Cloture, the incomplete antidote to the filibuster, had traditionally been used sparingly. But it was tried 187 times during the first two years of Barack Obama’s second presidential term when the Republican minority in  Congress went into a “prevent defense,” to block a raft of his executive and judicial nominations needing Senate approval. The Democratic response, exercising the party’s slim majority, was to adopt the so-called “nuclear option,” allowing certain matters, like judicial appointments, to overcome a filibuster with a majority vote, a practice that the GOP, in the majority driver’s seat a few years later, used to push through three of President Trump’s High Court nominees, who now comprise the solid conservative super-majority on that tribunal.

Faction favoring filibuster

The filibuster and its related protocols have been viewed by those favoring the status quo, and those with a current minority in the Senate, as having merit. Although it stifles the will of the majority, that is consistent with the flavor of the Senate itself an anti-democratic institution giving more voting power to less populous states. Some argue that the filibuster and cloture provide a certain degree of stability by making it difficult to change existing laws or enact new ones.

The filibuster has induced deadlock in the Senate, preventing passage of much legislation at all, beginning with the Obama administration, which has had the effect of shifting lawmaking to governance by executive order. Even if eliminating the filibuster means restoring legislative power to the Senate, the presidential veto could be used as a check on abuses as the framers of the Constitution intended.

The liberal-leaning Brennan Center for Justice has published a thoughtful paper calling for elimination of the filibuster against the backdrop of increasing legislative deadlock. The increased judicial activism of the conservative Supreme Court and certain state courts to erode or eliminate rights of people of color, voting rights, women’s rights, LGBTQ+ rights, and to block regulations meant to slow climate change, among other matters, only increases the urgency to restore a modicum of democratic processes to the inherently undemocratic Senate.

Constitutional concerns

So, what then are these Constitutional concerns that purport to subject the filibuster to illegitimacy?

That those who drafted – and ratified – the Constitution did not contemplate the filibuster and cloture mechanisms also is evidenced by the many provisions explicitly requiring two-thirds votes in that body: treaties, overriding presidential vetoes,  impeachment, and after the Civil War restoring the right to hold Federal elective office to former Confederates. By specifying these, the Constitutional authors indicated an intent that all other matters be subject to majority votes under the legal principle that the expression of one thing excludes others, known in Latin as “expressio unius est exclusio alterius.”

Two later amendments also may come into play. The 15th, granting the right to vote regardless of race after the Civil War, has been cited by author and correspondent Ellie Mystal on the podcast “Strict Scrutiny” as a source for challenging the filibuster on grounds that it dilutes the rights of individual voters. The 19th Amendment and the 26th Amendment also protect against abridgement of the right to vote because of sex and age, respectively. Similarly, the various Supreme Court one-person, one-vote rulings in the 1960’s concerning legislative and Congressional apportionment raise a similar issue.

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Then, there’s the 17th amendment, adopted four years before the cloture rule, which provides for election of senators by popular vote, rather than selection by state legislatures and, more importantly, mandates that “each Senator shall have one vote,” an edict that is infringed by the filibuster that dilutes the voting power of senators in the majority party.

But these arguments run into the provision in Article I, section 5 authorizing the two chambers of Congress to make their own rules, an indulgence that sometimes has been a barrier to judicial interference as the High Court stated in 1959 in Barenblatt v. United States: “So long as Congress acts in pursuance of its constitutional power, the Judiciary lacks authority to intervene on the basis of the motives which spurred the exercise of that power.”

However, the authority to establish internal procedural or housekeeping rules may not extend to creating a super-majority requirement like the filibuster, which has substantive effect on what legislation can, or cannot, be enacted in violation of the Constitution. As the Court explained in 1842 in United States v. Ballinwhile the “constitution empowers each house to determine its rules of proceedings” those bodies “may not by its rules ignore constitutional restraints or violate fundamental rights…”

The notion that the filibuster rule runs afoul of the Constitution is not novel. As chronicled in a well-researched law review article “The Constitutional Option to Change Senate Rules and Procedures: A Majoritarian Means to Over Come the Filibuster” the constitutional infirmity of the filibuster rule has been raised numerous times in Senate history, leading to a procedure originally dubbed the “constitutional option,” but now often referred to as the “nuclear option.”

Minnesota matters

Indeed, Minnesota Sen. Hubert Humphrey, the long-time senator who served as vice president, between two stints in that chamber, observed that under the Constitution most actions should be undertaken by majority vote, except those few that specify otherwise.

The iconic Minnesota solon knew of what he spoke. There is no parallel for the filibuster, cloture or other such obstructive devices in Minnesota state governance, although there are other ways that a partisan majority in either chamber of the legislature can bottle up bills in committee so that they never see the light of legislation.

Humphrey’s Minnesota colleague in the Senate before he became vice president, Sen. Eugene McCarthy, also was scornful of the filibuster, cloture, and other protocols of that body. He once warned not to support politicians or candidates who reference the Bible, cite to the Internal Revenue code, or “quote from the rules of the Senate.”

The Minnesota legislature, consistent with the views of those two senators, does not have anything resembling filibusters, cloture, or these other devices. State senators are allowed 10 minutes to speak on the floor on matters germane to the “question” before the body, not rambling exercises in irrelevant rhetoric. The state House limits members to speaking no more than twice on a particular matter on the floor.

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Remedies & results

If the filibuster and its accompaniments are constitutionally-suspect, as seems so, what can be done to remedy them and what results can be sought? It could be the target of new Senate rules unraveling it, but, depending on the procedures used, that could take at least 60 votes to undo the requirement of 60 votes for legislative action, an unlikely prospect to say the least.

Marshall H. Tanick
Marshall H. Tanick
But given the political will to do so, the filibuster could be eliminated by a simple majority vote in the Senate using the so-called “constitutional option” or “nuclear option,” the process used by Republicans to push through judicial nominations as explained by the right-leaning Brookings Institute. Senators take an oath when they take office to uphold the Constitution. Because the filibuster and the cloture violate the majority rule provisions of the Constitution, they have a duty under their oath and under the Constitution to ensure that the Senate’s rules are in conformity with the majority voting provisions of the Constitution.

If the Senate fails to act, litigation could be pursued challenging it, but several obstacles would stand in the way. First, there would need to be one or more Senators suing the body, or some interested party with sufficient standing to do so.

But even with a claimant, or more, a favorable outcome would have to confront and overcome the judicial reluctance to interfere with internal rules of the Congressional bodies. The Courts have generally have shied away from doing so in the spirit of the separation of powers principle, as the Supreme Court explained in 1974 in Nixon v. U.S.

Terry Ayling
Terry Ayling
Furthermore, the judicial doctrine of avoiding “political questions,” aimed at keeping the purity of the judiciary out of what has occasionally been referred to as the political “thicket,” in the 1964 one-person-one vote reapportionment case of Reynolds v. Sims – might steer a court into abstention.

It could take quite a controversy to stir a tribunal like the Supreme Court to step into this type of fray, and the greater the controversy the more likely the courts would steer clear of it. However, the Supreme Court, as currently constituted, has not demonstrated a reticence to avoid controversial issues if they can be decided favorably to the ultra-conservative majority.

At this time, the Senate also could emerge from its restrictive stance, its members embrace the oaths they took to uphold the Constitution, and discard the filibuster and cloture rule as unconstitutional.

So, perhaps the Senate itself, with the appropriate composition of solons could undertake to repair its own house by dismantling the filibuster in fidelity to the Constitution.

But they might have to overcome a filibuster to do it – or invoke the Constitutional option, the explosive nuclear device, and hope that the fallout doesn’t land on them.

The writers are attorneys with the Twin Cities law firm of Meyer Njust Tanick.