The filibuster
The filibuster is unconstitutional. This writer doubts that it will hold.
Democrats in the U.S. Senate of the coming 111th Congress are unlikely to allow a prospective minority of 41 Republican senators to thwart important legislative initiatives the Democrats believe a Democratic president will approve. The simple fact of the matter is that the Constitution of the United States does not provide for a filibuster. Majority Senate Democrats will discover this significant fact and bring important bills to floor votes, in defiance of Senate rules, before debate on the bills has concluded. Moreover, regrettably, they will be right to do so, because the Senate rule in question is unconstitutional.
Some, familiar with the matter, will object that the Constitution instructs the Senate to make its own rules, and that the rules the Senate has made require (a) a three-fifths majority to cut off debate and (b) a two-thirds majority to amend the rules. The Constitution however neither instructs nor authorizes the Senate to make rules in defiance of the law. Suppose that Congress enacted a 70-percent tax on personal income exceeding $ 500,000 a year and then the Senate enacted a rule forbidding a future Senate from ever (a) voting to rescind the tax or (b) altering the rule. Would this be Constitutional? If it would not be, then by what authority does the filibuster stand? The answer is that it stands by no authority except that of Senate custom. Faced with a Republican filibuster of legislation Democrats think important, do you believe that Senate Democrats will restrain themselves from sweeping away the rule?
Before actually acting to overthrow the filibuster by majority fiat, Senate Democrats can be expected to cajole their Republican colleagues to yield, permitting votes on key Democratic initiatives while keeping the filibuster formally intact, thus inverting responsibility for the potential overthrow of the rule. If we are fortunate, Senate Republicans will decline this fool’s bargain, recognizing in it the maintenance only of an effective Democratic filibuster in future years. If the Democrats want majority rule in the Senate—and, make no mistake, if it comes to that, they will—then let them take the responsibility for forcing their own rule change through. And remember: the rule they will be changing is indeed an unconstitutional rule.
To understand the filibuster one must understand its historical context. There used effectively to be three major parties in Congress, the third being the Dixiecrats, a great bloc of conservative Southern Democrats, a surviving political relic of the War between the States. The filibuster allowed Dixiecrats to halt legislation they opposed without actually breaking Democratic ranks—or, it allowed Dixiecrats to delay legislation long enough to alter it in compromise. The filibuster served a political purpose at the time, binding the Dixiecrats to the Democratic party and maintaining amity in the Senate. The Dixiecrats are no more, and—though sometimes we might wish otherwise—today’s bipolarized Senate simply no longer needs the filibuster rule. The filibuster has thus degenerated from its old, collegial purpose to become a mere instrument of minority defiance. Unconstitutional, it cannot long endure such changed conditions. It shall fall.
In the long run, this is a good thing.
HJH