Why a Majority of the Senate Can Change the Filibuster Rule

Recently, Mike Ramsey discussed the letter of a host of distinguished scholars arguing that the Constitution requires that a majority of each house have the power to change its rules (at least on the first day of the legislative session).  Therefore, the Constitution requires that a majority of the Senate be able to modify or eliminate the filibuster rule this month.

As Mike noted, I have argued  for a similar position before.  First, there is this op ed where John McGinnis and I conclude:

The . . . constitutionally correct view is that the Senate can choose to retain the filibuster rule, but that a majority must be able to change it. The Senate can thereby exercise its full constitutional authority to fashion rules of procedure but past majorities of the Senate cannot put current majorities in a procedural straitjacket. Thus, a change in the filibuster rule by a majority is not a “nuclear” option but instead the constitutional option – the route contemplated by our founding document.

Of course, the Senate majority’s undoubted power to change the filibuster rule does not mean that doing so would be good policy.

These conclusions are discussed more extensively in this Yale Law Journal article entitled “The Constitutionality of Legislative Supermajority Rules: A Defense.”  They are also elaborated upon in a variety of articles that we have published, such as this one.

My view differs in two respects from the Scholars’ Letter.  First, I believe that a majority of the Senate can at any time vote upon a change in the Senate Filibuster Rule.  There is no particular reason why the change needs to be made at the beginning of the session.

Second, I disagree with the claim that the power of a majority of the Senate to change the rules is based on the Framers’ belief in democracy.  The letter states:

The Framers believed deeply in a democracy steeped in majority rule. The overwhelming consensus of the Revolutionary period called for legislative and executive elections to be determined by majority vote. The Supreme Court simply assumed that its decisions would be by majority vote, even when the Court invalidated legislation as unconstitutional. Similarly, the Founders intended that each house of the national legislature would proceed by majority rule, including the enactment of rules pertaining to the procedures of each house. Both the history and text of the Constitution confirm this design.

This is a misleading premise for the conclusion.  While the Framers did assume that majority rule would generally be employed, they did not embrace simple democracy.  Not only did they employ a Bill of Rights and other limits on the majority, they also used bicameralism and presentment to the President – procedures which function like quasi supermajority rules.  Moreover, the Constitution also contains various explicit supermajority rules.  In fact, McGinnis and I argue that the dominant theme of the Constitution are supermajority rules.  As we argued in this article, it is a Supermajoritarian Constitution.

The main reason why a majority of the Senate needs to be able to change the filibuster rule is that otherwise a simple majority of the Senate could effectively amend the Constitution.  If a majority of the Senate said that the Senate could not pass a law that increased (or decreased) taxes without a 2/3 vote, and that this rule could not be changed except with a ¾ vote, then – if valid and enforceable – this rule would function like a constitutional amendment.  It would give the Senate the power to change the fundamental law of the nation.  Neither the structure nor the history of the Constitution supports this conclusion.  But it is not because the Framers so strongly embraced simply majority rule.  Instead, it is because they favored entrenched limitations on the legislative process to be enacted through the supermajoritarian constitutional amendment process.

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review.  His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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