Last 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.