Lex Majoris Partis: How the Senate Can End the Filibuster on Any Day by Simple Majority Rule

Article excerpt

INTRODUCTION

Though I never knew Professor Brainerd Currie--he died when I was just a lad--I did know and admire his son, Professor David Currie, who passed away in 2007. I was especially impressed by the younger Currie's sustained interest in congressional constitutionalism (1)--that is, in various constitutional issues that have arisen in Congress and that have often involved special rules and procedures of Congress itself. In the tradition of the younger Professor Currie, I propose to use this hour, as the 2013 Currie Lecturer, to address one of the most important contemporary issues of congressional constitutionalism: the Senate filibuster.

In this hour I shall argue that, contrary to what many senators say and what some of them might even believe, the Senate may eliminate current filibuster practice on any day it chooses, and may do so by a simple majority vote. My main argument today reprises material from my recent book, America's Unwritten Constitution: The Precedents and Principles We Live By, and I am particularly grateful that the Duke Law School has kindly arranged for copies of this book to be given to the students in attendance today. In a brief Coda to my main argument, I shall offer additional elaboration, placing my views in the context of recent events on Capitol Hill and explaining how my proposed approach intersects with longstanding arguments about whether the U.S. Senate is or is not a "continuing body."

I.

Multimember institutions, such as the House, the Senate, and the Court, can do nothing--nothing at all!--unless certain basic social-choice rules are in place within these institutions. Crucially, there must exist master rules that determine how many votes within each institution will suffice to achieve certain results. Yet the written Constitution does not textually specify the master voting rule that operates inside these three chambers. Happily, two centuries of actual practice make clear that the bedrock constitutional principle within each is simple majority rule.

Some senators today, however, think otherwise. They think that the Senate's current filibuster system cannot be abolished by a simple majority vote. They should think again, for they have misread America's Constitution, written and unwritten. To see why, let's first canvas the internal voting rules and deliberation protocols that apply within the Supreme Court and the House of Representative and then use the evidence and insights generated by this canvas to analyze the modern Senate filibuster.

The Constitution explicitly provides for a Chief Justice, but does not specify his role, except as the official who chairs presidential impeachment trials. Perhaps the Chief's most important Court role, established by Court tradition, involves his power to assign opinions. Whenever he finds himself in the initial majority after oral argument, he decides which Justice shall take the lead in trying to compose an opinion on behalf of the Court. Of course, he may opt to assign the opinion-writing power/duty to himself, as John Marshall did in most important cases of his day, and as Earl Warren did in landmark cases such as Brown v. Board of Education and Reynolds v. Sims.

Thanks to the necessary-and-proper clause, Congress has also vested the Chief Justice with sundry administrative and supervisory responsibilities for the federal judiciary as a whole, but none of these congressional statutes has done much to clarify the Chief's authority within the Supreme Court itself. And while Congress has defined the jurisdiction of the Court and has enacted various rules of evidence and procedure for litigants who come before the Justices, federal lawmakers have opted to leave a great deal of the internal protocol among the Justices to be worked out by the Justices themselves. (2)

But by what voting rule? While the written Constitution left the matter unspecified, four interrelated factors pointed to simple majority rule as the master norm among the Justices, at least in the absence of some contrary protocol prescribed by Congress. …