The Constitutionality of the Filibuster
Gerhardt, Michael J., Constitutional Commentary
Ignorance about the filibuster is almost universal. What many people might know about the filibuster is based on the climax of the classic film, Mr. Smith Goes to Washington, when Jimmy Stewart's character launches a filibuster to stop legislation that would usurp land on which he had hoped to build a special place for wayward boys. Some people might recall reading in history about the use of the filibuster to block civil rights legislation, while it is possible that most literate Americans are familiar with the recent denunciations of the filibusters that have blocked floor votes on six of President George W. Bush's judicial nominations as "outrageous," "disgraceful," "unconstitutional," and nothing short of a violation of basic principles of democratic government. (1) The denunciations fell short of their intended purpose of embarrassing the senators responsible for the filibusters, much less of motivating the full Senate to consider the Senate Majority Leader's proposal to amend Senate Rules to allow only a simple majority rather than three-fifths, or 60, senators to end a filibuster. (2) In the end, none of these fragmentary images nor the heated denunciations have enhanced popular understanding of the filibuster or the reasons for its longevity and constitutionality.
This Essay addresses the basic arguments for and against the constitutionality of the filibuster. In spite of the fact that intense debates over the constitutionality of the filibuster have been front page news and intensely divided the Senate throughout 2003, (3) very few legal scholars have devoted serious attention to the filibuster. (4) Determining the constitutionality of the filibuster is, however, by no means easy. It requires analyzing surprisingly complex problems within the legislative process. These include, inter alia, making sense of majority rule within the legislative process; the limits to the Senate's discretion in formulating internal rules; the Senate's unique structure and organization; and how the filibuster may alter the balance of power within the Senate and between the Senate and other institutions, including the presidency and the federal judiciary. Assessing the constitutionality of the filibuster further requires determining whether any Senate rule violates "anti-entrenchment," an ancient principle forbidding a past legislature from binding a current one to accept a rule or practice it otherwise would reject, because it allows a filibuster of a motion to amend Rule XXII (or any other Senate rule) that may be ended only by supermajority vote.
Finally, this Essay sketches some solutions for redressing problems with constitutional argumentation in, and theorizing about, the Senate. It calls attention to the need to measure and ensure the quality of discourse within the Senate on the filibuster and other constitutional matters. This Essay also develops a theory of nonjudicial precedent, that will clarify how much deference senators and perhaps other institutions (including courts) ought to give to the Senate's historical practices. (5)
Part I reviews the relatively straightforward textual, structural, and historical arguments supporting the constitutionality of the filibuster. The filibuster derives its principal authority from the Senate's express power to design its own procedural rules to govern its internal affairs and the Senate's consistent support for its constitutionality. It is also one of many counter-majoritarian features of the Senate, such as the committee system and unanimous consent requirements for agenda-setting. The same constitutional arguments support each of these practices. If these practices are constitutional, so is the filibuster. (6)
Part II addresses the strongest arguments against the constitutionality of the filibuster. First, the filibuster is arguably illegitimate, because it is not included among the supermajority voting requirements explicitly set forth in the Constitution. …