Is the Filibuster Illegal?

The Economist

COMMON CAUSE, a left-leaning advocacy non-profit, has filed a lawsuit against the Senate on the grounds that the filibuster defies the constitution. Ezra Klein of the Washington Post, a leading anti-filibuster opinion-maker, lays out the Common Cause case as it has been articulated by Emmett Bondurant, a celebrated litigator and Common Cause board member:

Between 1840 and 1900, there were 16 filibusters. Between 2009 and 2010, there were more than 130. But that’s changed. Today, Majority Leader Harry Reid says that “60 votes are required for just about everything.”

At the core of Bondurant’s argument is a very simple claim: This isn’t what the Founders intended. The historical record is clear on that fact. The framers debated requiring a supermajority in Congress to pass anything. But they rejected that idea.

The constitution sets out six cases in which a supermajority is required in the senate, and passing ordinary legislation isn’t one of them. Mr Bondurant’s basic claim is that the upshot of this omission is that the majority vote is the mandatory default for decision-making about legislation. That is to say, the use of anything other than majority voting is prohibited, except for those cases in which another voting rule is explicitly prescribed. If the constitution doesn’t outright say this, that’s only because the framers thought it was too obvious to mention.

Mr Klein thinks Mr Bondurant “makes a strong case”. Gregory Koger, a political scientist at the University of Miami seems not to agree. “I am very excited that Common Cause has filed a lawsuit against the Senate filibuster”, Mr Koger confesses at the Monkey Cage blog. “Excited in a John Stuart Mill, isn’t-it-great-when-bad-arguments-get-aired-and-demolished kind of way.” In a 2009 post, Mr Koger systematically reviewed the arguments against the proposition that the filibuster is unconstitutional. In his more recent post he responds specifically to the Common Cause/Bondurant brief:

The central argument of the brief is that the use of supermajority procedures in the U.S. Congress is inherently unconstitutional. It states, “The principle of majority was so basic to the concept of a democratically elected legislative body that it did not need to be expressly stated in the Constitution.” Of course, too-important-to-be-written looks exactly like not-important-enough-to-include, so affirming this claim would invite a series of lawsuits claiming other “obvious but unwritten” principles.

Mr Koger goes on to observe that the principle that “every supermajority procedure used by Congress is prohibited” if not explicitly required would take down a number of longstanding and uncontested practices in both houses.

Constitutional questions aside, Mr Koger is sceptical that ditching the filibuster would make the Senate significantly more functional. Here’s the real problem, as he sees it:

The Republicans generally don’t want anything to pass, and when legislation does come to the floor the Republican often demands roll call votes on “message” amendments that provide fodder for the current news cycle and the next campaign. The Democrats, whose majority is based on winning seats in red states, don’t want to vote on these amendments. And so there is a stalemate in which must-pass legislation is put off until the final moment while they wait for each other to blink and nothing else gets done. …

Changing the voting threshold would have the small benefit of removing an excuse for this dysfunction, but it would not solve the more fundamental problem that many legislators find it in their electoral interests to disagree.

The fundamental problem is partisan polarisation. If you believe, as I do, that polarisation is due mainly to increasingly efficient sorting of American voters into parties according to personality type, then procedural tweaks will look unlikely to make a meaningful difference. But this is not to say that a major procedural overhaul wouldn’t help. I suspect the discontents of polarisation would be greatly alleviated by replacing America’s creaking legislative system with a proportional-representation parliamentary system. There aren’t just two kinds of personalities, liberal and conservative. Moral/ideological temperament is complex. Multiplying parties would offer voters the chance to sort themselves into finer-grained partisan identities while adding flexibility to the politics of coalition-building and law-making. If abolishing the filibuster would require a constitutional amendment, as Mr Koger leads me to suspect, then those of us frustrated by congressional dysfunction might be better served by abandoning the pursuit of such niggling quarry and hunt instead for bigger game.