Bench Memos

Why Common Cause Is Wrong About Filibusters

Common Cause has filed a complaint in federal district court in D.C. seeking a declaratory judgment that the Senate rule authorizing filibusters (i.e., requiring a supermajority for cloture) is unconstitutional or, in the alternative, a declaratory judgment that the Senate rule that requires a supermajority vote to amend the Senate rules is unconstitutional. At a quick glance, I strongly suspect that Common Cause’s complaint ought to be dismissed for lack of standing (or for any number of other defects of justiciability). But I’ll limit myself here to briefly outlining why I think that Common Cause’s substantive position is wrong. I’ll make just two general points:

1. The Constitution confers on each House of Congress the broad authority to “determine the Rules of its Proceedings.” (Art. I, § 5.) Each House exercises that authority by a majority of members present and constituting a quorum. (The Constitution states that “a Majority of each [House] shall constitute a Quorum.”) As I argued in one of my very first Bench Memos posts seven years ago, the authority of each House to “determine” its rules necessarily includes the authority to revise them at any time—again, by the same vote of a majority of members present and constituting a quorum.

In other words, I believe that any Senate rule that requires a supermajority vote may at any time be superseded or displaced by a majority of the Senate (not just by a majority vote of the entire Senate, but even by a majority of senators present and constituting a quorum—which majority could be as few as 26 senators). That’s why, for example, it was entirely proper for Senate Republicans in 2005 to seek to abolish, by majority vote, the practice of filibustering judicial nominees.

In sum, the Senate filibuster, far from being (as Common Cause contends) “inconsistent with the principle of majority rule,” continues to exist precisely because a majority of senators allows it to. (And there are plenty of good reasons, as well as some bad ones, why so many senators favor a supermajority rule for cloture. My own longstanding position is to disallow the filibustering of judicial nominees but to otherwise allow the filibuster to continue to operate.)

2. With regard to Common Cause’s objections, I don’t see any material difference between how the filibuster operates and how the Senate’s committee structure (also a creation of Senate rules) operates. When, as routinely happens, a bill or a nomination is referred to a committee, the Senate thereby vests in a minority of the Senate the ability to block any further action on the bill or nomination. Indeed, the minority is much smaller than the minority needed to sustain a filibuster.

Take, for example, the Senate Judiciary Committee, which currently has 18 members. Any group of nine members therefore has the ability to deprive the committee of the majority needed to report a bill or nomination to the full Senate. (To be sure, the Senate could try to discharge a matter from committee, but a motion for discharge would itself be subject to a filibuster, and the ultimate power of the Senate majority to discharge the matter is no different from the ultimate power of the Senate majority to override the filibuster rule.)

In sum, if Common Cause’s argument that the filibuster is unconstitutional were correct, that would mean that each House’s system of referring matters to committees is also unconstitutional. The fact that no one even argues the latter proposition provides ample reason to be distrustful of Common Cause’s argument.

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