Declare The Senate Filibuster Unconstitutional To Force Senate Reform

Erwin Chemerinsky, dean of the UC Berkeley School of Law, and Burt Neuborne, the Norman Dorsen Professor of Civil Liberties at the New York University School of Law, make a fascinating argument for declaring the anti-democratic Senate filibuster rule unconstitutional in the LA Times. The filibuster is unconstitutional. Here’s how Vice President Harris can take it on:

There is a clear next step in changing the Senate filibuster: Vice President Kamala Harris, as presiding officer of the Senate, can — and should — declare the current Senate filibuster rule unconstitutional. This would open the door for discussions on a new rule that would respect the minority without giving it an unconstitutional veto.

In 1957, Vice President Richard Nixon, sitting as presiding officer of the Senate, issued two advisory opinions holding that a crucial provision of the Senate’s filibuster rule — requiring two-thirds vote to amend it — was unconstitutional. Nixon’s constitutional determination was reaffirmed by subsequent vice presidents Hubert Humphrey and Nelson Rockefeller. In fact, it was this ruling that allowed both the Democratic-controlled Senate in 2013 and the Republican-controlled Senate in 2017 by a simple majority vote to eliminate filibusters for all executive and judicial nominees.

Harris possesses the same power to rule that the [Mitch McConnell] version of the Senate filibuster, which essentially establishes a 60-vote supermajority rule to enact legislation in the Senate, is unconstitutional because it denies states “equal Suffrage in the Senate” in violation of Article V of the Constitution.

Wyoming with 580,000 inhabitants, elects the same number of senators as California, with its 40 million residents. A person in Wyoming thus has 65 times more voting power in the Senate than a person living in California. The [Mitch McConnell] current 60-vote filibuster rule makes this imbalance even worse.

Under the 60-vote rule, 41 senators representing about a third of the population can outweigh 59 senators representing two-thirds. This situation surely violates the principle of equal representation in voting — for example, the “one person, one vote” rule that the Supreme Court long ago applied to state legislative and congressional districts.

Note: This is very similar to the “vote dilution” argument Republicans made against the City of Tucson’s election system a few years ago, which an en banc panel of the 9th Circuit Court of Appeals rejected, and the U.S. Supreme Court let stand the 9th Circuit Court opinion. Tucson city election system will stand, after Supreme Court rejects GOP appeal. This employs the Republicans’ own argument about “vote dilution” against them. They should hardly be heard to complain.

Everyone agrees that the text of the Constitution does not allow for simply giving California more senators than Wyoming. Nor can the Senate’s lack of representative fairness be cured by adopting internal Senate voting rules. But that does not mean the Senate has authority to create even more unfairness than already exists.

Further Reading: GOP Decides Equal Representation Is an ‘Assault on Democracy’ (excerpt):

Under a more democratic system of representation — in which every American’s partisan preference counted equally, irrespective of where he or she lived — the GOP would have either been locked out of power for the past three decades, or else forced to moderate its agenda, as governing in defiance of the popular will wouldn’t have been an option.

In fact, Article I of the Constitution does not appear to permit a broad 60-vote supermajority rule. That article sets forth supermajority votes in the Senate only in narrowly defined cases like ratifying treaties, overturning presidential vetoes and convicting impeached officials. The strong implication is that, unless the action falls into these narrow exceptions, the Senate should operate by majority rule. Article I says nothing about a general supermajority requirement for the enactment of all legislation in the Senate.

And while the 17th Amendment revolutionized the Senate by shifting the election of senators from state legislators to the voters, it preserved the founders’ decision to give each state two senators with equal voting rights. But a 60-vote supermajority rule destroys the mathematical equality of each senator’s vote.

We believe that the best way forward is for Harris to rule that the current version of the Senate filibuster operates as an unconstitutional 60-vote supermajority requirement for the enactment of general legislation — in violation of Article V, the 17th Amendment and the constitutional presumption of majority rule. Such a ruling would trigger two events.

The full Senate could seek to overrule Harris by majority vote. In that case, the senators would no longer be debating the filibuster as mere political policy, but about a profound constitutional question. Sen. Joe Manchin, and a Republican senator or two, might well care about ensuring that no state is deprived of “equal suffrage” under the Constitution.

At the same time, discussions could begin about what a constitutional rule protecting the Senate minority might look like. Perhaps the Senate would choose to abandon the filibuster. Or it might adopt a rule requiring strenuous effort — like demanding that a senator get on the floor and actually talk to prevent a bill from proceeding to a vote — which could limit the occasion of filibusters. Or it might require successively lower votes to end the filibuster, initially 60, then 55, and then just a majority.

See political scientist Norm Ornstein, Democrats can’t kill the filibuster. But they can gut it.

Eliminating the filibuster now would benefit the Democrats, but it would help the Republicans the next time they control the Senate. Vice President Harris can move this forward by following the example of her predecessors by making a constitutional ruling that the current filibuster rule needs to be changed.

U.S. Senator Amy Klobuchar (D-MN), Chairwoman of the Committee on Rules and Administration with oversight of federal elections and campaign finance law, announced that the Committee would hold its hearing on the For The People Act on Wednesday, March 24, 2021. This will be the first time the bill has had a hearing in the Senate. The hearing will be broadcast live on the Rules Committee website: HERE.

The For The People Act is the most significant civil rights legislation since the Civil Rights Act of 1964, and the most significant voting rights legislation since the Voting Rights Act of 1965. This is “must pass” legislation for Democrats and their voter constituents.

This tees up a battle royal over the Senate filibuster rule. Senate Majority Leader Chuck Schumer says ‘everything is on the table’ to pass voting rights legislation in Senate:

Senate Majority Leader Chuck Schumer said “everything is on the table” to pass a comprehensive voting reform bill, the For the People Act, during a press conference introducing the legislation [last] Wednesday.

“We will see if our Republican friends join us. If they don’t join us, our caucus will come together and decide the appropriate action to take,” Schumer said. “Failure is not an option.”

I haven’t witnessed this much anticipation over a Senate battle royal since Southern Dixiecrat segregationists unsuccessfully tried to filibuster the Civil Rights Act of 1964, which lasted for 60 working days in the Senate. The filibuster that almost killed the Civil Rights Act. Unfortunately, there is no Sen. Everett Dirksen (R-IL) equivalent today in the Party of Trump:

On June 10, 1964, Dirksen made a powerful speech that served to bring more Republicans onto his side in the fight.

Dirksen made his case and then quoted the author Victor Hugo: “Stronger than all the armies is an idea whose time has come.” The Senator then reminded his colleagues that the Republican Party stood for equality since its founding in the years before the Civil War. [No longer true in the Party of Trump.]

That same day, the Humphrey-Dirksen group got 71 votes to end the filibuster, four more than needed, as 27 Republicans had decided to support the Act.

During the vote, the terminally ill Senator from California, Clair Engle, was brought to the floor in a wheelchair. Unable to speak because of a brain tumor, Engle pointed to his eye to signify his Yes vote.

President Johnson signed the bill on July 2 in a nationally televised ceremony.