Is the Filibuster Unconstitutional?

This is one of the most interesting articles I’ve read in awhile. Ezra Klein looks at the new constitutional challenge of the Senate filibuster rule. Famed attorney Emmet Bondurant is suing to get the Supreme Court to eliminate the rule. This is the latest in a string of criticisms of the filibuster rule from both Senate Majority Leader Harry Reid and Vice-President Selina Meyer. The constitutionality challenge is a fascinating idea, claiming that the existence of the rule upsets the structure of the Senate as part of the Great Compromise, seeking to balance the power of large states against small states, which is an angle I’d never considered.

In the annals of fiction, a legislative solution to the filibuster is as fictional as any plot device.

As a refresher, the filibuster is a quirk of parliamentary procedure. When a bill is offered to the floor of the Senate, the body begins a series of speeches debating the merits of the bill. This will go on until Senators vote to close debate and move on to a vote on the bill itself. Standard parliamentary procedure requires a 2/3 majority to close debate. In the case of the Senate, only a 60 vote majority is required, but this is still a difficult hurdle to clear. When a minority party can gather 41 Senators to its side, they can prevent a bill from receiving a vote. Usually the majority will recognize the futility and give up the fight. At other times, a Senator on the minority side will speak at length, reading from phone books and the Declaration of Independence to keep the bill alive (though research suggests that this may not happen again — parliamentarians believe a filibuster could stay alive by a lone Senator sitting silently on the floor of the Senate, which is a much easier task).

Klein looks at how the use of the filibuster has exploded in recent years. From my perspective, the most interesting result of this increased use of the filibuster is the increasing vilification of the idea that an organized and politically motivated minority could thwart the will of the majority. Today the filibuster is recognized as an abused mechanism that allowed Mitch McConnell to halt Senate proceedings for the first two years of the Obama administration. Prior to that, Harry Reid and Chuck Schumer were blamed for using the procedure to hold up a small number of Bush administration judicial nominations. The filibuster is cast as an anti-democratic tool to undermine the will of the people. A little more than 70 years ago, the filibuster was a heroic endeavor, forming the emotional climax of Mr. Smith Goes to Washington. The filibuster was the only weapon of a disadvantaged minority fighting moneyed interests with no interest in the will of the people. Given that the Senate is disproportionately populated by millionaires winning elections fueled by special interest dollars and SuperPACs, the idea that both parties, regardless of their policy differences, have successfully shifted the public perception of the filibuster to an anti-populist device is a testament to how little power a true “little guy” like Mr. Smith has in modern Washington.


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