Is the Filibuster Unconstitutional?

Here's an interesting, and very persuasive, editorial by Thomas Geoghegan which argues that the current filibuster rules in the U.S. Senate are unconstitutional. (To read it, registration at the New York Times is required, though it's free.)

For the record, nothing like Senate Rule 22 appears in the Constitution, nor was there unlimited debate until Vice President Aaron Burr presided over the Senate in the early 1800s. In 1917, after a century of chaos, the Senate put in the old Rule 22 to stop unlimited filibusters. Because it was about stopping real, often distressing, floor debate, one might have been able to defend that rule under Article I, Section 5 of the Constitution, which says, “Each house may determine the rule of its proceedings.”

As revised in 1975, Senate Rule 22 seemed to be an improvement: it required 60 senators, not 67, to stop floor debate. But there also came a significant change in de facto Senate practice: to maintain a filibuster, senators no longer had to keep talking. Nowadays, they don’t even have to start; they just say they will, and that’s enough. Senators need not be on the floor at all. They can be at home watching Jimmy Stewart on cable. Senate Rule 22 now exists to cut off what are ghost filibusters, disembodied debates.

As a result, the supermajority vote no longer deserves any protection under Article I, Section 5 — if it ever did at all. It is instead a revision of Article I itself: not used to cut off debate, but to decide in effect whether to enact a law. The filibuster votes, which once occurred perhaps seven or eight times a whole Congressional session, now happen more than 100 times a term. But this routine use of supermajority voting is, at worst, unconstitutional and, at best, at odds with the founders’ intent.

Here’s why. First, the Constitution explicitly requires supermajorities only in a few special cases: ratifying treaties and constitutional amendments, overriding presidential vetoes, expelling members and for impeachments. With so many lawyers among them, the founders knew and operated under the maxim “expressio unius est exclusio alterius” — the express mention of one thing excludes all others. But one need not leave it at a maxim. In the Federalist Papers, every time Alexander Hamilton or John Jay defends a particular supermajority rule, he does so at length and with an obvious sense of guilt over his departure from majority rule.

Second, Article I, Section 3, expressly says that the vice president as the presiding officer of the Senate should cast the deciding vote when senators are “equally divided.” The procedural filibuster does an end run around this constitutional requirement, which presumed that on the truly contested bills there would be ties. With supermajority voting, the Senate is never “equally divided” on the big, contested issues of our day, so that it is a rogue senator, and not the vice president, who casts the deciding vote.

The procedural filibuster effectively disenfranchises the vice president, eliminating as it does one of the office’s only two constitutional functions. Yet the founders very consciously intended for the vice president, as part of the checks and balances system, to play this tie-breaking role — that is why Federalist No. 68 so specifically argued against a sitting member of the Senate being the presiding officer in place of the vice president. 

I'm no lawyer, so I can't say any more than that this sounds very reasonable. And he's certainly right about the consequences:

So on the health care bill, as on so many other things, we now have to take what a minority of an inherently unrepresentative body will give us. Forty-one senators from our 21 smallest states — just over 10 percent of our population — can block bills dealing not just with health care but with global warming and hazards that threaten the whole planet. Individual senators now use the filibuster, or the threat of it, as a kind of personal veto, and that power seems to have warped their behavior, encouraging grandstanding and worse.

However, I don't have his confidence in our Supreme Court - not the current Court, at least, which has been packed with far-right ideologues.