With a Potential Supreme Court Nomination At Stake, Questions of The Filibuster's Constitutionality Linger

This is Part One of a two-part series by Professor Amar on the Constitution and the filibuster. - Ed.

Republican Senate leaders have been voicing extreme dissatisfaction over the Democrats' use of the filibuster to block final consideration of President Bush's candidates - such as Miguel Estrada and Priscilla Owen - for the federal appellate bench. Over the last week, in particular, things have heated up quite a bit.

Senate Majority Leader Bill Frist has proposed significant changes to the rules regarding filibusters. And on June 5, the Senate Rules and Administration Committee held some remarkable hearings on the filibuster.

Prior to the hearings, the debate had focused on the history and politics of the filibuster. (Both were the subjects of a recent column for this site by John Dean.) In contrast, last week's Committee questioning centered more on various interesting and profound constitutional questions surrounding the practice, which I will take up in this two-part series of columns.

These questions are going to get more and more important, as the summer nears, and the possibility of a Supreme Court vacancy looms.

The Filibuster and the Cloture Vote: Some Background

The filibuster is a U. S. Senate practice whereby a single Senator, or his minority party, can block full Senate consideration of a bill or nomination by extending debate on the proposal indefinitely. The resulting "filibuster" can ordinarily be stopped only by a "cloture" vote, which requires 60 of the 100 Senators (a supermajority) to vote to end debate, and bring the bill or nomination to a final vote.

The filibuster, obviously, plays a crucial role whenever only 50 to 59 Senators support a given bill or nomination. It can ensure that the proposal is not approved, despite the fact that a majority of the Senate (or half the Senate, plus the Vice President, who breaks ties) would approve the measure if a vote were taken.

This right to endless debate evolved in the Senate over the eighteenth and nineteenth centuries. It is now embodied in the Senate's own formal rules - particularly Rule XXII, which guarantees unlimited discussion absent cloture.

Filibusters of old required the filibustering party to actually stand and hold the Senate floor by speaking continuously, in order to delay a final vote, as depicted in Frank Capra's famous movie "Mr. Smith Goes to Washington," which featured Jimmy Stewart as a young and idealistic Senate newcomer. Today, by contrast, a minority party can indefinitely put off a vote on a bill or nomination by simply indicating to Senate leaders that this indefinite delay is desired - unless there are 60 Senators in favor of cloture.

The Constitutional Argument Against the Filibuster

The June 5 hearing - led by Trent Lott, the former Republican Senate majority leader - posed a few constitutional questions relating to the filibuster. Senator Lott stated that he was cognizant that federal courts, including the Supreme Court, might well decline to resolve these questions based on the "political question" doctrine, which suggests that some questions are not susceptible for judicial review. But he still wanted answers, referring to the oath he had taken to uphold the Constitution.

First, the Senators asked, how can one square the filibuster device and practice with the Constitution itself?

As Professors Erwin Chemerinsky and Catherine Fisk have noted in an elegant law review article, in seven instances, the Constitution requires the use of supermajority rules by one or both houses of Congress. But the filibuster rule is not among them.

For instance, the Constitution requires a 2/3 supermajority of each House to override a Presidential veto of legislation. In addition, it requires a 2/3 majority of the Senate to convict and remove an officer of the United States who has been impeached by the House (as many will remember from President Bill Clinton's impeachment).

In short, some suggest, ordinary majority rule is the Constitution's baseline, and the Constitution is careful and explicit in detailing the situations in which supermajorities are required. Thus, the Constitution's drafters plainly knew how to impose a supermajority rule when they wanted to. They didn't, however, impose the supermajority requirement for ending debate in the Senate.

Therein lies the primary argument against the constitutionality of the filibuster: In failing to expressly include the Senate cloture rule, the Constitution implicitly excludes it. (The Latin term for this interpretive rule is expressio unius est exclusio alterius.) The Constitution, on this reading, gives an exhaustive, exclusive list of all supermajority rules that can be applied in the House or Senate.

The Argument for the Filibuster's Constitutionality

Unfortunately for filibuster opponents, things are not that simple. Another hallowed interpretive principle suggests that a list - such as the Constitution's list of supermajority vote situations - can be illustrative, not exhaustive. It can suggest the kind of circumstances in which a supermajority rule might be appropriate, without providing an exhaustive list of all such rules that can ever be imposed.

Moreover, the Constitution, in Article I, section 5, anticipates that the House and Senate will make rules beyond those set forth in the Constitution, and specifically gives them authority to do so: "Each House may determine the rules of its proceedings." And, aren't the filibuster rule and companion cloture vote rule just these types of procedural rules? Remember, when a filibuster is ongoing, the cloture rule technically requires a supermajority to end debate - a procedural occurrence - not a supermajority to enact the legislation or approve the nomination in question.

Finally, most constitutional analysts are understandably reluctant to disturb practices that have a long historical pedigree - which the filibuster certainly does. In light of this reality, the constitutional case against the filibuster becomes even weaker.

Yet Another Supermajority Rule Comes Under Fire

In any case, one might wonder, why don't filibuster opponents just switch, rather than fight? Why don't they just change the Senate cloture rule itself?

Because that, too, would require a supermajority vote, according to another provision in the Senate Rules. Rule XXII by its terms provides that any motion to amend the Senate Rules requires the agreement of two thirds present and voting. If all 100 Senators are present, 67 votes would thus be needed.

Is this second supermajority rule constitutional? It depends on how one reads the Constitutional provision that says "each House" has the power to determine "the Rules of its Proceedings."

First, does "each House" mean a majority of each house? The answer is probably yes.

Consider the full text of the relevant provision, Article I, section 5: "Each House may determine the Rules of its Proceedings, punish its members for disorderly behavior, and, with the Concurrence of two thirds, expel a member." Only expulsion requires a supermajority.

Moreover, the contrast between what is expressed and what is omitted occurs within a single sentence. As a result, the reasoning of expressio unius is quite powerful. As I suggested above, it remains debatable whether the Constitution's seven supermajority references are illustrations, or a rather complete list. But when a 2/3 supermajority requirement is imposed in one case in a single sentence, and left out in others in the same sentence, it seems safe to assume the other cases are governed by a simply majority vote.

But the power the majority has is over "the Rules of its proceedings." And that leads to another wrinkle. Rule XXII itself was enacted by a simple majority of the Senate. So, arguably, it simply represents a legitimate exercise of constitutional power that belonged to a past Senate majority.

That brings us to the crux of the issue: Must a majority of each new Senate have the power to revisit the Rules made by a majority of Senators at an earlier time? Is that what "each House" means? Put another way, does each Senate at every point in time have the power to determine, by its own simple majority, its own rules? Or can past Senates bind themselves, and future Senates, by adopting supermajority rules concerning rule amendment, such as the one in Rule XXII?

Right now, this issue is crucial. Currently, there may exist a majority in the Senate in favor of altering both the rule about rule changes, and the cloture rule, to make filibusters in judicial nominations less easy. If this working Senate majority is able to change the filibuster rules to bring nominations to the floor of the Senate, then virtually all of the President's judicial nominations will likely sail through, and the federal judiciary will be changed for a long time to come.

More generally, this kind of temporal question - can a past Senate be able to entrench its own rules and bind future Senates? - resonates with important, larger Constitutional themes. I will unpack this very important entrenchment idea, and its broad-ranging implications, in my next column in this series.