The conservative constitutional case against the filibuster

The filibuster should be near, if not at, the top of the list of characteristics of American government most to blame for the current impasse in Washington.

Everyone knows the politics, but it’s important not to overlook the constitutional text.

As the Brennan Center for Justice reported last year in The Case Against the Filibuster, “the filibuster did not become a rule or practice of the Senate until 129 years after the Constitution was ratified. Moreover, not only is the Constitution silent on the matter, but it prescribes supermajority votes only for very specific subjects, such as treaties, making clear that a simple majority is the expectation for other circumstances, including legislation. This indicates that supermajorities, as required by the filibuster, are otherwise disfavored.” Citing work by Professors Jonathan Chafetz and Burt Neuborne, the Brennan Center added that “some legal scholars have argued that the filibuster is unconstitutional because it is inconsistent with the Constitution’s ‘implicit premise’ of majoritarianism.”

The textual case against the filibuster ought to appeal to Senators who claim conservative credentials. It’s simple enough.

The Constitution, to be sure, gives the House and Senate the power in Article I, section 5, clause 2, to determine the rules of its proceedings. But does that power extend to requiring more than a simple majority in order to pass legislation? Article I is silent on the point, but the Constitution does prescribe special voting requirements for a variety of purposes. Thus, Article I, section 3, clause 6, requires a two-thirds vote of the Senators present in order to convict an impeached president. Article I, section 5, clause 2, requires a similar vote to expel a Senator or Representative. Article I, section 5, clause 1, provides that a majority of either chamber constitutes a quorum, while clause 3 gives one-fifth of the members a right to call for the Yeas and Nays. Under Article I, section 7, clauses 2 and 3, a two-thirds vote of both houses is required to override a veto of a bill or any order, resolution or vote to which both houses must agree.

The Framers were not being casual when they included these provisions: They were careful to exclude votes on adjournment from the broad category of orders, resolutions, and votes requiring a two-thirds vote under Article I, section 7, clause 3. Article II, section 2, clause 2, requires a two-thirds vote of the Senators present in order to ratify a treaty. Article V requires a two-thirds vote in each house to propose amendment to the Constitution.

A time-honored canon of construction — expressio unius est exclusio alterius — holds that when one thing is specifically prescribed, others are by implication excluded. Like most canons of construction, this one is not ironclad, and you can readily find cases that hold it inapplicable in a given setting. But the sheer number and variety of legislative functions as to which the Framers specified some supermajority strongly suggests that they did not intend either chamber to require more than a simple majority (and a quorum, of course) for passing garden-variety legislation.

This should be a compelling argument for any legislator who claims to read the Constitution’s text fairly.

Requiring more than a simple majority to pass a bill is as unfaithful to the Framers’ handiwork as it would be to require a unanimous vote to ratify a treaty, expel a member, or convict an impeached president.

The Supreme Court long ago held that Congress could not impose membership qualifications beyond those set in the Constitution. It did so in Powell v. McCormack, 395 U.S. 486 (1969), holding that Rep. Adam Clayton Powell Jr., who met the Constitution’s age, citizenship, and residency requirements, could not be denied his seat by a majority vote of the House. The case lends support for a textualist objection to the filibuster: If Congress cannot add to the eligibility requirements, so too, it cannot raise the bar for enacting legislation.

It is inconceivable that a challenge to the filibuster would gain traction in the courts, but that is not the point. Rather, the point is that Senators who take their oath seriously need to deal fairly with the text that governs their proceedings.

Eugene R. Fidell is an adjunct professor of law at New York University and a senior research scholar at Yale Law School. He is of counsel at the Washington, D.C., law firm Feldesman Tucker Leifer Fidell LLP.