Is the filibuster truly constitutional?

At first glance, the question seems too silly or pointless to merit a serious answer. We can talk about how to tinker with the filibuster, limit or amend it, or even deploy the big one — the “nuclear option” — to prevent its use. And indeed, Senate Democrats, now that their party controls the White House and both houses of Congress, are contemplating whether to try one or all of those measures as they pursue their urgent legislative agenda. But the legitimacy of the filibuster rests on a clear constitutional foundation: Article I, Section 5, Clause 2 of the Constitution declares that “each House may determine the Rules of its Proceedings.”

Read by itself, this clause seems to do all the work needed to sustain the filibuster: The Senate is free to determine when, whether or how deliberation on a measure should end. It can set the rule for the cloture of debate at two-thirds, the longtime norm, or the three-fifths the Senate shifted to in 1975. Indeed, if the rulemaking power is plenary in nature, senators could theoretically raise the cloture margin as high as they wished. Why not three-quarters, seven-eighths or nine-tenths? Why not adopt an American version of the famous Polish liberum veto, which allowed a single aristocratic member of the Sejm to terminate its legislative deliberations?

But perhaps this rulemaking authority is not completely plenary in nature. The same clause of the Constitution also empowers each house of Congress to “punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member,” making it one of the five provisions of the Constitution that require super-majoritarian decisions. The others involve conviction of executive officials upon impeachment, veto overrides, treaty ratification and constitutional amendment. The framers also pondered other super-majoritarian rules. A few Southern delegates wanted a two-thirds requirement to enact legislation under the Commerce Clause, the better to protect their region against Northern domination. The margin set to overcome a presidential veto was originally set at three-fourths. Five days before the Convention adjourned, the framers, in a divided vote, lowered it to two-thirds — over the opposition of George Washington and James Madison.

The framers’ interest in supermajorities is not some quaint matter of constitutional numerology. They were into fractions in a big way. Anyone who wishes to replace the electoral college with a national popular vote has to confront the daunting obstacles that Article V erects against constitutional amendments: two-thirds approval in both houses of Congress and ratification by three-quarters of the states. Today, we view Article V as an impossible burden the framers have imposed on us, and fancy that the Rube Goldberg-like National Popular Vote Interstate Compact to replace the electoral college offers some magic trick of constitutional improvisation. Ironically, the framers believed they were making constitutional amendment much easier by offering two mechanisms to propose constitutional amendments (Congress or a convention of the states) and two to ratify them (state legislatures or conventions) — a big improvement over the Articles of Confederation, which required unanimous approval by all 13 state legislatures.

Among all the super-majoritarian rules that the Constitution explicitly mandates or implicitly permits, the filibuster is the most politically controversial. That’s obvious enough; it’s amply documented on a daily basis. Defenders of the filibuster can no longer invoke the rationale that was long the main justification for its use: that it protected the White South’s commitment to racial segregation and white supremacy. The Second Reconstruction of the 1960s made that case unsustainable.

The common defense of the filibuster now takes a different form: that the need to reach a threshold support of 60 senators remains one of the few mechanisms available to promote some modicum of cooperation in our hyperpartisan age. That’s the argument that Senate Minority Leader Mitch McConnell (R-Ky.) made in defense of the filibuster late last month. Drawing on Federalist 62, McConnell linked the filibuster to James Madison’s ideal of deliberation, which gives the Senate the role of providing “a ‘complicated check’ against ‘improper acts of legislation.’ ” The 60-vote cloture rule, McConnell concluded, was the best means to that end.

That goal, in theory, might be admirable in itself. But as Senate Democrats debate how to approach the filibuster in the weeks ahead, they should recognize another fact that has long gone ignored: The filibuster is also the most constitutionally problematic application of a super-majoritarian rule.

The Senate’s rules governing the filibuster and cloture are no longer mere rules of deliberation, which each house of Congress does have constitutional power to set. For all practical purposes, they have become rules of decision as well, meaning that decisive action on any legislation demands the super-majoritarian approval of three-fifths of the Senate. Deliberation and decision have now converged; the line between them has become so permeable it no longer exists. The simple fact that opposing senators no longer need to take the floor to filibuster, much less imitate Jimmy Stewart’s bravura performance in “Mr. Smith Goes to Washington,” illustrates how little this procedure has to do with positive deliberation. GovTrack recorded 590 votes on cloture — the procedure to end debate and prevent or end a filibuster — from 1989 to 2009. From 2009 through late January, there had been 930 of them.

That means the filibuster runs afoul of another constitutional norm. A well-known rule of legal construction stipulates that expressio unius est exclusio alterius: the expression of one is the exclusion of other(s). When a legal text specifically lists the instances where a rule applies, it excludes others not included in the enumeration. This rule was as familiar to Madison’s founding generation as it becomes to law students who learn it today. The Constitution explicitly tells us when super-majoritarian rules of decision are required, and it has no provision at all requiring a supermajority for the Senate to act on legislation. Because majority rule was always the default option for passing a bill, a rule of deliberation that functionally preempts a majority decision becomes constitutionally problematic.

Nor will it do to rally Madison in defense of the filibuster. Of course, McConnell is right to recognize that Madison always viewed the Senate as a temperate check on a more impulsive lower house. From early in his career, Madison was concerned with improving the quality of legislative deliberation. He liked the idea of having legislative assemblies appoint select committees of longtime lawmakers to make sure that bills were properly drafted, in an era in which most lawmakers — at both the state and national levels — were amateurs who came and went with every election. He favored a joint executive-judicial “council of revision” with a limited veto over legislation, so that these amateur lawmakers would think more about the enforcement of bills before they were adopted. Madison liked the idea of giving these rotating lawmakers longer terms so they would grow more knowledgeable about their work over the course of each session.

But in one critical respect, McConnell badly distorts Madison’s views: Madison always remained a majoritarian. To his way of thinking, the decision to give each state an equal weight in the Senate — a decision he deeply opposed on principle — was as far as the Constitution should go to protect minorities’ rights. To make it a pretext for adding other restrictions on majority rule, such as the filibuster, would only compound the original harm.

Madison best explained his position on June 30, 1787, two weeks before the Convention adopted the so-called Great Compromise that gave each state an equal weight in the Senate. It was not enough to say, as delegates from the smaller states argued, that the more populous states and popular majorities would have “an effectual bulwark” to protect their interests in the rules creating the House of Representatives. Preventing harm and protecting “every peculiar interest” were not, Madison argued, the sole aims of representative government. The Senate could still “obstruct the wishes and interest of the majority” and “extort measures, repugnant to the wishes & interest of the majority.”

With his deep commitment to promoting the free exercise of religion, Madison was hardly averse to the idea that the rights of minorities deserved protection. But one further aspect of his thinking demands examination.

Madison argued, correctly, that the interests of individual citizens are never a function of the size of the population of the states where we live. No one ever goes into a voting booth asking, “What’s good for the small states, what’s good for the populous states?” We all vote on the basis of our individual interests, preferences and identities: our occupation, wealth, religion, race, ethnicity, education, place of residence (city, suburb or country), whatever. These are obviously distributed differently across the states. But the states as such have no interests that transcend the aggregated but diverse interests of their citizens.

The Senate, of course, is constructed on another principle, and because the equal vote of the states is the one provision of the Constitution that an Article V amendment cannot alter, we are stuck with it indefinitely. But that is no rationale for locking it in place as an institution that prefers parliamentary obstruction to constructive deliberation — something the “greatest deliberative body in the world” now seems incapable of doing. It is not what Madison had in mind. And it is not what Democrats should accept.

Read more: