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Lefty Law Professors Want VP Harris to Declare the Filibuster “Unconstitutional”
Give the Left its due. They are relentless. Not just progressive election “reformers,” or “critical theory” proponents. But law professors and legislative strategists are on a never-ending quest to eliminate the single biggest barrier to their legislative utopia – the United States Senate’s filibuster rule.
For those of us who respect the filibuster, this is no time to let down our guard.
The Constitution (Article I, Section 5) gives each House the ability “to determine the rules of its proceedings.” And the Senate’s Rule V provides that “the rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.”
The Senate’s Rule XXII establishes procedures for ending debate in the Senate (among other things). It primarily works like this: The Senate Majority Leader files a “cloture” motion, usually right after they bring up a “motion to proceed” to legislation or an executive or judicial nomination.
The Budget Act of 1974 established procedures for Congress to pass annual budgest and “reconciliation” bills limited specifically to tax and spending without a supermajority requirement. That is why Senate Democrats are hyper-focused on cramming as much as they can into as many “reconciliation” bills as possible while they’re in charge, under the very broadly defined cause of “infrastructure.”
The motion “ripens” after 30 hours of debate. A vote occurs on the cloture motion. Thanks to a 1975 amendment, cloture requires a narrower three-fifths majority to pass, and end debate. In today’s Senate, with all members present and voting, that means 60 votes out of 100.
Given that the Senate is equally divided between Republicans and Democrats, that means the Democrats – who “control” the Senate by Vice President Kamala Harris’ “tie-breaking” vote – require 10 Republicans along with a unified 50 Democrats to end debate and bring a bill to a final vote.
I wrote previously about the Senate’s long history with the filibuster, going back to 1806 when Vice President Aaron Burr persuaded the Senate to get rid of the motion to “call the previous question” (end debate), which required only a simple majority vote. It wasn’t until the Wilson Administration about a century ago that the Senate imposed a two-thirds vote requirement (amended in 1975 to a three-fifths requirement).
But that doesn’t stop clever minds from hatching schemes to circumvent rules and traditions, especially on the filibuster. Keep in mind that Presidents had long disliked the filibuster when it got in the way of their agenda. Woodrow Wilson didn’t like it when he tried to arm US merchant ships in protection against German submarines. Dwight Eisenhower didn’t like it when it stood in the way of his 1957 Civil Rights Act. Barack Obama didn’t like it when Republicans filibustered his packing of the District of Columbia US Court of Appeals and got the Harry Reid-led Democratic Senate to eliminate the filibuster for most judicial nominees in 2013.
Donald Trump didn’t like it all during his four years, mainly regarding the repeal of Obamacare, and unsuccessfully pressured then-Majority Leader Mitch McConnell to eliminate it (except for Trump’s Supreme Court nominees, building on Reid’s “nuclear option” in 2017).
That brings us to two law professors, Erwin Chemerinsky (University of California at Berkeley) and Burt Neubourne (New York University), who penned an oped last March in the Los Angeles Times this week with a terrible idea to eliminate the filibuster. Their suggestion continues to have legs as The Left continues to advance its version of “election reform” (HR 1, S1) in the face of unified GOP opposition.
There is a clear next step in changing the Senate filibuster: Vice President Kamala Harris, as presiding officer of the Senate, can — and should — declare the current Senate filibuster rule unconstitutional. This would open the door for discussions on a new rule that would respect the minority without giving it an unconstitutional veto.
In 1957, Vice President Richard Nixon, sitting as presiding officer of the Senate, issued two advisory opinions holding that a crucial provision of the Senate’s filibuster rule — requiring two-thirds vote to amend it — was unconstitutional. Nixon’s constitutional determination was reaffirmed by subsequent vice presidents Hubert Humphrey and Nelson Rockefeller. In fact, it was this ruling that allowed both the Democratic-controlled Senate in 2013 and the Republican-controlled Senate in 2017 by a simple majority vote to eliminate filibusters for all executive and judicial nominees.
Harris possesses the same power to rule that the current version of the Senate filibuster, which essentially establishes a 60-vote supermajority rule to enact legislation in the Senate, is unconstitutional because it denies states “equal Suffrage in the Senate” in violation of Article V of the Constitution.
Nice try and an interesting sleight of hand, but no cigar.
There are two things going on here: previous Vice Presidents (Richard Nixon and Hubert Humphrey) issuing advisory opinions that claimed the Senate in a new Congress was not bound by the rules of a previous Congress, and therefore the filibuster was “unconstitutional.”
Humphrey went to the next step and ruled accordingly. He was overruled by the US Senate at the beginning of a new Congress (1969). The Senate’s Parliamentarian at the time, and since, do not consider vice presidential “advisory opinions” to be precedents. Why should they?
Second thing: the “equal suffrage” clause of Article V of the Constitution. That Article deals specifically with amendments to the Constitution. The Founders wanted to ensure each state was equally represented in the amendment process. In effect, the Constitution can not be amended to give some states more Senators than others. This was not affected by the enactment of the 17th Amendment that provides for the direct, popular election of Senators.
But since I’m not an attorney or Constitutional expert, don’t take my word for it. Let’s consult two other law professors, David A. Strauss (University of Chicago) and Michael B. Rappaport (University of San Diego), writing for the National Constitution Center:
Finally, Article V, while spelling out how the Constitution can be changed, made two things unchangeable—even through the difficult amendment process. One is that “no State, without its consent, shall be deprived of its equal Suffrage in the Senate.” So every state will have the same number of Senators, no matter how many members of Congress or other states want to change that part of our system (unless a state agrees to accept a smaller number of Senators). Article V also says, in language that is hard to follow and has no legal effect today, that until 1808, no amendment could limit the slave trade—a reminder that there are parts of the Constitution that we can be thankful were amended.
Chemerinsky and Neuborne assert that the “equal suffrage” clause means something else – that it gives smaller states too much power to block the will of larger, more popular states – and also raise the old canard that a simple majority vote to decide things in the Senate is implied in Article I of the Constitution. How?
In fact, Article I of the Constitution does not appear to permit a broad 60-vote supermajority rule. That article sets forth supermajority votes in the Senate only in narrowly defined cases like ratifying treaties, overturning presidential vetoes and convicting impeached officials. The strong implication is that, unless the action falls into these narrow exceptions, the Senate should operate by majority rule. Article I says nothing about a general supermajority requirement for the enactment of all legislation in the Senate.
Our two lefty law professors are wrong on at least one thing: The filibuster is a procedural rule, not a substantive one, even if it prevents a small partisan majority from getting its way. Once cloture is invoked or debates end, final votes are always decided by simple majorities except as otherwise prescribed in the Constitution.
The filibuster is, therefore, entirely consistent with the Constitution. The professors’ interpretation is not a legal one – it is political. And they’ve given too little thought to the ramifications of their proposal.
I have great respect for legal experts and these two make interesting arguments, but as we’ve learned painfully from our recent pandemic and especially the Vietnam War, experts are often wrong, and disastrously so. It is simply specious to suggest, certainly in this case, that unless the Constitution specifically authorizes it, it’s not allowed. Usually, progressives argue just the opposite – that if it’s not expressly prohibited, it’s okay.
Irony: eliminating the Senate’s filibuster might arguably violate Article V’s “equal suffrage” clause, since a simple majority could quickly end debate without every Senator, and thus every state, being given a chance to be heard.
Senator McConnell was right to preserve the filibuster under pressure from President Trump. Senators Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ), and likely other Democrats, are wise to resist pressure from their radical left to do likewise. And let’s hope they remain as relentless as their party’s radical base to maintain the essential character of the US Senate. The Founders, through our system of checks and balances, wanted to make it hard to enact legislation and wanted broad political support for it to do so.
We’ll see if Vice President Harris someday takes the bait. She would be wise not to. She may want to remember how proud Democrats were when then-Majority Leader Harry Reid engineered the elimination of the filibuster to help Barack Obama pack the Court of Appeals for the District of Columbia in 2013, only to have Mitch McConnell use it four years later to help confirm not one, but three Trump nominees to the Supreme Court.
I strongly suspect the Senate, as it did with Vice President Humphrey, would overrule her. And if it comes that, they should. And quickly.
The author was the 28th Secretary of the US Senate.Published in