Are the U.S. Senate Rules on Filibuster and Changing Those Rules Unconstitutional?

Common Cause on May 14, 2012, started a lawsuit alleging that the U.S. Senate’s filibuster Rule (Rule XXII)[1] was unconstitutional.

On September 18th, the plaintiffs in that case provided the U.S. District Court for the District of Colombia and the defendants with a legal argument as to why Rule XXII and Senate Rule V that continues the Rules from one Congress to the next were unconstitutional.[2] Let us look at that argument.

Rule XXII Is Unconstitutional

1. The Constitution was adopted to remedy the defects of the Articles of Confederation, including its supermajority provisions.

Under the Articles of Confederation, no action could be taken without the approval of delegates from nine of the 13 states. This was true for a quorum and for approval of legislation.

These provisions made the government under the Articles ineffective and unable to act. As a result, the Constitutional Convention was convened to create a new governmental structure without these and other defects.

First, the Convention rejected proposals for supermajority requirements for quorum and for passage of legislation. Instead the Convention approved the Constitution that required the presence of “a Majority of each [house of Congress] [to] . . .  constitute a Quorum to do Business” (Art. I, § 5(1)) and that “every Bill which shall have passed the House of Representatives and the Senate, shall . . . be presented to the President” (Art. I, § 7(2)).

Second, the Constitution was specific as to when a super-majority was required. That is the case in the following six circumstances:

  • two-thirds vote of Senators present for conviction of impeachment (Art. I, § 3(6));
  • (ii) two-thirds vote of each house of the Congress to expel one of its members (Art. I, § 5 (2));
  • (iii) two-thirds vote of each house to override a presidential veto of a bill (Art. I, § 7(2));
  • (iv) two-thirds vote of each house to override a presidential veto of an order or resolution (Art. I, § 7(3));
  • (v) two-thirds vote of Senators present to provide Advice and Consent to treaties (Art. II, § 2 (2)); and
  •  (vi) two-thirds vote of both houses to propose constitutional amendments (Art. V).[3]

2. The Constitution’s framers expressed their intent to reject general super-majority requirements.

Alexander Hamilton and James Madison in The Federalist Papers emphasized that the “fundamental principle of free government” was majority rule. Moreover, they said that general super-majority requirements would lead to “impotence, perplexity and disorder.”

3.  Senate Rule XXII violates the Constitution’s Quorum Clause.

The Constitution’s Quorum Clause (Art. I, § 5(1))) provides that “a Majority of each [house of Congress] shall constitute a Quorum to do business.” (Emphasis added.)

But under Rule XXII a majority of the Senate cannot do business–it cannot debate, deliberate or vote– without the presence of 60 Senators to vote in favor of a motion for cloture if even one Senator wants to engage in a filibuster.

Therefore, it is unconstitutional.

4. Senate Rule XXII violates the Constitution’s Presentment Clause.

The Constitution’s “Presentment Clause” (Art. I,  § 7 (2)) sets forth the same procedure for the passage of bills by both the House of Representatives and the Senate: passage by a majority of those voting. This is mandatory.

Rule XXII, however, requires a supermajority (60 votes) in order for the Senate to pass a bill if even one member objects to ending debate on the matter.

Therefore, it is unconstitutional.

5. Senate Rule XXII violates the Constitution because it is not included in one of the Constitution’s specific super-majority requirements.

As previously mentioned, the original Constitution has six specific situations calling for super-majority votes for certain actions by the Senate.

This specific enumeration of supermajority votes precludes the Senate from adding another in Rule XXII.[4]

Therefore, it is unconstitutional.

6. Senate Rule XXII violates the “grand compromise” of the Constitution.

The “Great Compromise” of the Constitution provided each state with equal representation in the Senate and, therefore, when in the majority with the power to pass laws.

Rules XXII violates that fundamental principle of the Constitution and, therefore, is unconstitutional.

Rule V and Rule XXII Are Unconstitutional

Rule V states that “the rules of the Senate shall continue from one Congress to the next Congress unless . . . changed as provided in these rules, and Rule XXII requires a two-thirds vote to amend those rules.

These two rules in combination violate the Constitution for the reasons previously stated for Rule XXII alone.

Conclusion

This argument apparently is supported by six law review articles or comments.[5] The defendants in this case, however, have not yet responded to this argument. Nor has the court ruled on the argument.

Therefore, the legal argument set forth in this post is just that–a legal argument. It is not a legal precedent.


[1] The history of the Senate’s Rule XXII or filibuster rule was discussed in a prior post. Another post voiced my opinion that the Senate Rules were abominable.

[2] This argument was set forth in the plaintiffs’ opposition to the defendants’ motion to dismiss the complaint for lack of jurisdiction. (Brief of Plaintiffs in Opposition to Motion To Dismiss at 16-21, Common Cause v. Biden, No. 12-cv-0775 (D.D.C. Aug. 27, 2012) [Plaintiffs’ Brief”].) Those jurisdictional issues will be discussed in a subsequent post.

[3]  There are two other super-majority requirements in constitutional amendments. The Fourteenth Amendment, Section 3 requires a vote of two-thirds of each house to remove an individual’s disability from holding any federal or state office for having “engaged in insurrection or rebellion against same or given aid or comfort to their enemies.” The Twenty-Fifth Amendment, Section 4  provides that a two-thirds vote of both houses is necessary to determine that a President “is unable to discharge the powers and duties of his office.”

[4] Analogous support for this conclusion is provided by the U.S. Supreme Court’s decision in Powell v. McCormick, 395 U.S. 486 (1969) involving the power of each house of Congress in Article I, Section 5 (1) to “be the judge of the . . . Qualifications of its own Members.” The House of Representatives had excluded Member-elect Adam Clayton Powell from Harlem because of his personal conduct outside of Congress and even though he satisfied the qualifications for membership set forth in Article I, Section 2(2): attainment of the age of twenty-five years plus seven years as a U.S. citizen and being an inhabitant of the state in which he was chosen. The Court held that “in judging the qualifications of its members, Congress is limited to the standing qualifications prescribed in the Constitution.” As previously mentioned, I was a junior attorney for the House of Representatives in this case.

[5] Plaintiffs’ Brief, at 16, n.30.

 

The History of the U.S. Senate’s Filibuster Rule

As discussed in a prior post, Common Cause on May 14, 2012, started a lawsuit alleging that the U.S. Senate’s filibuster Rule (Rule XXII) was unconstitutional.

On July 20, 2012, the defendants provided the U.S. District Court for the District of Colombia and the plaintiffs with a history of Rule XXII as part of the motion to dismiss the complaint on jurisdictional grounds.[1] This post will summarize that historical record.

Majority Ability To Halt Debate, 1789-1806

From the First Session of the First Congress in 1789 through 1806, the Senate provided for a motion for the “previous question,” which permitted a majority to determine whether a matter should be immediately considered on the merits or postponed.[2]

No Ability To Halt Debate, 1806-1917

From 1806 through 1917, there was no mechanism for the Senate to close debate over the objection of a single Senator who wished to speak.[3] There, however, was only one instance in the first half of t he 19th century when a minority of the Senators sought to block the Senate’s consideration of a matter on the merits. That concerned a resolution to expunge from the body’s journal its 1834 vote to censure President Andrew Jackson, but that attempt failed after the opponents had “talked and talked.”

In the early 20th century there was increased use, intensity and success of what came to be called filibusters. In 1917 such a filibuster prevented Senate passage of a bill authorizing President Woodrow Wilson to arm American merchant ships.

Adoption of Cloture Rule, 1917

Immediately after the blockage of the bill to authorize arming American merchant ships, the Senate held a special session, and on March 8, 1917, adopted a cloture rule. Under that rule, whenever 16 Senators moved to close debate on any pending measure, after a two-day hiatus, the Senate would vote on the question, “Is it the sense of the Senate that the debate should be brought to a close?” If that motion were approved by two-thirds of those voting, the underlying measure would be the pending business until it was voted up or down. Such a vote would come after each Senator had spoken for up to one hour or waived that right. This rule also restricted amendments and prohibited dilatory motions and non-germane amendments.

Experience with the Cloture Rule, 1917-1949

Although cloture was invoked four times between 1917 and 1927, the rule was circumvented by filibustering a procedural motion.

Amending the Cloture Rule, 1949

In 1949 the rule was amended to cover motions and other pending matters, but the number of votes necessary to invoke cloture was increased from two-thirds of those voting to two-thirds of the total Senate membership. The rule also continued to exclude resolutions to amend the rules.

Experience with the Amended Cloture Rule, 1949-1959

During this period filibusters were used to block civil rights legislation. As a result, public pressure increased to change the rule.

Amending the Cloture Rule, 1959

In 1959 the rule was amended to reduce the number of votes necessary to invoke cloture from two-thirds of the total Senate membership to two-thirds of those voting. In addition, the rule was expanded to cover motions to proceed to amend the Senate rules and expressed the Senate’s understanding that its rules continued from one Congress to the next.

Amending the Cloture Rule, 1975

In 1975, the Senate again amended the rule to change the number of votes to invoke cloture from two-thirds of those voting to three-fifths of the Senate membership (now 60 of 100) while maintaining a two-thirds vote of those present and voting to change the rules.

Experience with the Amended Cloture Rule, 1975-Present

Since 1975 there has been an increasing number of cloture votes and various proposals to change the rule regarding filibusters. But no additional changes in the rule have been adopted.


[1] Memorandum of Points and Authorities in Support of Defendants’ Motion To Dismiss at 3-11, Common Cause v. Biden, No. 12-cv-0075 (D.D.C. July 20, 2012). Subsequent posts will discuss (a) the plaintiffs’ legal argument as to why Senate Rules XII and V are unconstitutional; and (b) the jurisdictional issues.

[2] Plaintiffs have pointed out that at the time of the adoption of the Constitution in 1789, filibusters had been prevented in the English Parliament by its adoption in 1604 of the previous question motion and in the Second Continental Congress by its adoption of the same rule for such a motion. (Brief of Plaintiffs in Opposition to Motion To Dismiss at 9-10, Common Cause v. Biden, No. 12-cv-0775 (D.D.C. Aug. 27, 2012).)

[3] The plaintiffs say that the Senate’s elimination of the previous question rule in 1806 was a “quirk.” Its elimination apparently was due to comments by Vice President Aaron Burr that the Senate rules had become too complicated and that the previous question motion could be eliminated because it had only been used once in his four years acting as President of the Senate. (Id. at 11.)