May
15, 2003, 10:10 a.m.
Filibuster Preservation
Does the Senate
filibuster need reform?
By John C.
Eastman
ast
week, Senate Majority Leader Bill Frist introduced a resolution to change
Senate Rule XXII, that provides for unlimited debate in the Senate unless
a supermajority of 60 senators votes to invoke cloture and cut off debate.
Elaborating on the arguments put forward by several constitutional-law
professors (myself included) at a recent hearing before the Senate Judiciary
Subcommittee on the Constitution — arguing that the use of the filibuster
to create a supermajority requirement for judicial confirmations was unconstitutional
— Sen. Frist has proposed a sliding scale for cloture votes, with
each successive cloture vote requiring fewer votes to succeed until, at
the fifth vote, a simply majority of senators present and voting would
prevail.
Sen. Frist's
plan, based on similar proposals offered by Georgia Democrat Zell Miller
earlier this year (Sen. Miller has cosponsored Sen. Frist's proposal) and
by Democrats Joe Lieberman and Tom Harkin in 1995, carefully reconciles
two competing norms — the Senate's long-standing tradition of full
deliberation on important matters, and the constitutional requirement of
majority rule. Indeed, Sen. Frist's proposal would effectively return to
rules that prevailed in the Senate from its establishment in 1789 until
1806, by which a simply majority could end debate on a motion for the previous
question and under which no one was "to speak impertinently or beside
the question, superfluously or tediously." Nor is this the first time
that the Senate rules have been changed to address an abusive use of the
filibuster. Between 1841, when the filibuster was first utilized by Sen.
John C. Calhoun to protect slaveholding interests, and 1916, when Sen. Robert
LaFollette used it to block legislation that would have authorized merchant
ships to arm themselves against unlawful attacks by German U-boats before
the United States entered World War I, unanimous consent was required to
end a filibuster. During that time, there were nearly a dozen proposals
to restore the "motion for the previous question" rule or a cloture
rule, but Sen. LaFollette's filibuster was the last straw: In 1917, the
Senate adopted the first cloture rule, providing that debate could be ended
by a vote of 2/3 of the senators present and voting.
When that rule began
to be abused by the use of a filibuster to block procedural motions not
subject to the 2/3 cloture vote (a practice that rendered the cloture
option meaningless), the Senate amended its cloture rule in 1949 to extend
to procedural motions, but in a compromise increased the vote required
to 2/3 of the full Senate rather than 2/3 of the senators present and
voting. During the 1950s, there were several attempts to reduce the number
necessary to invoke cloture from 2/3 to a simply majority, and several
others to provide a two-tiered cloture rule, whereby a 2/3 vote was required
initially but a simply majority vote would suffice after a reasonable
period for debate, between 12 and 15 days. Additional amendments were
proposed during the 1960s until, in 1975, the cloture rule was amended
to allow cloture by a vote of 3/5 of the Senate (today's 60-vote requirement).
Finally, in 1995, Sen. Harkin proposed to establish a declining vote requirement
for cloture, so that by the 4th cloture vote, a simple majority of the
Senate would suffice to end debate and allow the Senate to proceed to
a vote on the merits of the matter at hand.
In short, ever since
the Senate in 1806 abolished the majority vote mechanism to end debate,
its history has been punctuated by abuse of what amounted to a minority
veto, and successive efforts in response to bolster the ability of the
majority ultimately to prevail. Sen. Frist's proposal last week, like
Sen. Harkin's 1995 proposal, would complete that task.
One monumental hurdle
stands in the way of this sensible reform, however; Senate Rule XXII currently
provides that the filibuster rule can only be changed by a 2/3 vote, a
provision that was first enacted back when Dwight Eisenhower was president
and southern Democrats were using the filibuster to block civil-rights
legislation. As constitutional-law scholars across the ideological spectrum
have noted, that supermajority requirement is patently unconstitutional,
for it allows a prior Senate to impose its will on the current Senate
and deprive the people of their ability to effect change through the majoritarian
political process. Liberal U.S.C. Law Professor Erwin Chemerinsky has
written, for example, that "entrenchment of the filibuster violates
a fundamental constitutional principle: One legislature cannot bind subsequent
legislatures." Lloyd Cutler, former counsel to Presidents Carter
and Clinton, has contended that the "requirements of 60 votes to
cut off debate and a two-thirds vote to amend the rules are both unconstitutional."
Conservative law professors John McGinnis and Michael Rappaport have contended
that "the Constitution prohibits legislative entrenchment" such
as that effected by Rule XXII. At last Tuesday's hearing, Catholic Law
School Dean Doug Kmiec, Northwestern Law School Professor Steven Calabresi,
and constitutional scholar Bruce Fein all joined with me in affirming
that view.
Thus, any attempt
to allow 1/3 of the Senate to veto Sen. Frist's proposed rules change
would be unconstitutional. If the Senate does not itself so rule, any
member of the Senate whose vote is diluted as a result, or any pending
nominee who has already received the support of a majority of the Senate
but whose confirmation vote has been blocked by an abusive use of the
filibuster, would have standing to challenge the rule in court. Sen. Frist's
sensible reform should be approved before it gets to that, so that the
majority can ultimately prevail when the time for reasonable debate has
expired. As Sen. John Cornyn, quoting former Sen. Henry Cabot Lodge, noted
at the outset of last Tuesday's hearing, "To vote without debating
is perilous, but to debate and never vote is imbecile."
—
John C. Eastman is professor of law at Chapman University School of
Law and director of the Claremont
Institute Center for Constitutional Jurisprudence.
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ast
week, Senate Majority Leader Bill Frist introduced a resolution to change
Senate Rule XXII, that provides for unlimited debate in the Senate unless
a supermajority of 60 senators votes to invoke cloture and cut off debate.
Elaborating on the arguments put forward by several constitutional-law
professors (myself included) at a recent hearing before the Senate Judiciary
Subcommittee on the Constitution — arguing that the use of the filibuster
to create a supermajority requirement for judicial confirmations was unconstitutional
— Sen. Frist has proposed a sliding scale for cloture votes, with
each successive cloture vote requiring fewer votes to succeed until, at
the fifth vote, a simply majority of senators present and voting would
prevail.
