More on the New Filibuster “Rule”

Will Baude has an interesting post on various aspects of what the Senate Democrats did, which is well worth reading. One question he asks is whether the Senate Democrats passed a new rule or simply refused to apply the existing rule, perhaps creating a precedent. Another question involves the power of the majority of the Senate to make decisions, without being bound by existing Senate rules.

The constitutional problem is that the current Senate rules purport to stop a majority from changing the rules, by requiring a 2/3 majority to get cloture on a proposal to change the rules. It is the combination of that 2/3 requirement and the 60-vote cloture requirement that is unconstitutional. And it is not clear to me, in the case of such an unconstitutional combination, which rule is supposed to give way. One possibility is that the constitutional remedy is to jettison the 2/3 rule-amending requirement, and then use that power to formally amend the filibuster (if desired), not just to ignore the filibuster rule.

This is an interesting question, and I think there are arguments on both sides of whether the Senate majority has to change the 60 vote cloture rule or whether it can simply ignore the existing rule.

Ed Whelan also has three interesting posts on the filibuster, written from the perspective of a Republican who believes the Senate Democrats have been very hypocritical. Whelan notes that he has long favored eliminating the filibuster on judicial nominees, which is true. I first met Whelan when he I debated whether the appointment of Supreme Court justices should be subject to a supermajority rule.

Mike Rappaport

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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  1. R Richard Schweitzer says

    ” It is the combination of that 2/3 requirement and the 60-vote cloture requirement that is unconstitutional.”

    Other than being in direct conflict with a proportion prescribed and required by the wording of the Constitution, the Rules of the Senate may well be in conflict with one another without being “unconstitutional” (actually not authorized by the Constitution).
    Art I; Sec.5; to-wit:

    “Each House may determine the Rules of its Proceedings . . .”

    The Constitution does not prescribe or limit **how* or under what constraints each House shall so determine its Rules.

  2. gabe says

    Quite right!!!
    And as the constitution does authorize supermajority requirements (veto, Art. V Amendment process,etc) I can not see any reason to conclude that this instance of a supermajority requirement would not be permissible – 60 or 66 votes, it matters not – it does seem to be within the Legislatures competence to establish it own rules of order.

    In fact, it would appear to be consistent with the notion of the (Old ) Senate as the deliberative body as opposed to the “peoples” body. Was it jefferson who said the purpose of the Senate was to “cool’ democratic passions?

    If they choose to no longer act as a “cooling” body, so be it. either way, it is their grant of power in the constitution, as Richard points out, to do with as they please.

    Of course, if it were me, I would make it a requirement that we have unanimity on all votes – we have enough laws already!! Just kidding, guys!

    take care

  3. says

    (Thank you Gabe.)
    Why aren’t we hearing a more resounding outcry from our highly respected conservative scholars on this blog – to the reason(s) why this Democratic-controlled U.S Senate removed “the supermajority 60 votes (that has been) required for more than 200 years”(1). The reason I am calling for this is – is the selection of federal judge-ships! This – for over a half century — of judicial philosophical meandering has brought us to this brink of a continued usurpation of the Constitution, — of our States rights — the compact of Federalism — of the BOR’s – of the rights of the majority of the people.
    Respectfully, John
    1. Robert Longley, US Government Info

  4. says

    Went into Nomocracy this evening. I’ve added a piece of their commentary “Senate Majority Leader Harry Reid’s recent move to severely restrict the use of the filibuster has received surprisingly little criticism of the type and intensity it deserves.”
    The full context follows — for those of you who may be interested.
    Respectfully, John

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