Chafetz & Gerhardt Debate the Constitutionality of the Filibuster

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Is the Filibuster Constitutional?

With the help of the President, Democrats in Congress were able to pass historic healthcare-reform legislation in spite of—and thanks to—the significant structural obstacles presented by the Senate’s arcane parliamentary rules. After the passage of the bill, the current political climate appears to require sixty votes for the passage of any major legislation, a practice which many argue is unsustainable. The Senate Rules Committee plans to address the issue of filibuster reform shortly.

In Is the Filibuster Constitutional?, Professors Josh Chafetz and Michael Gerhardt debate the constitutionality of the Senate’s cloture rules by looking to the history of those rules in the United States and elsewhere. Professor Chafetz argues that the cloture rules represent an unconstitutional principle of entrenchment and highlights the absurdity by analogizing to a hypothetical rule requiring a supermajority to unseat an incumbent senator, which would surely not be tolerated. Chafetz concludes that historical practice fails to justify obstructionist tactics and that any constitutionally conscientious senator has a duty to reject the filibuster as it currently operates.

Professor Gerhardt attributes the Senate’s behavior to the lack of a majority committed to curtailing abuses of Senate procedure. He argues that the weaknesses of the traditional arguments against the filibuster underscore the filibuster’s inherent constitutionality. Gerhardt points out that a majority of Senate seats is never subject to election at the same time and that the Constitution does not forbid, but instead expressly permits, the Senate to draft internal procedures. Failing to find an anti-entrenchment principle implied in the constitutional scheme, Gerhardt groups the filibuster with other Senate traditions—such as holds and bitter partisanship—and finds that the solution to unsatisfactory behavior in the legislature is, and always has been, accountability at the ballot box.

As always, please visit PENNumbra to read previous Responses and Debates, or to check out pdfs of the Penn Law Review‘s print edition articles.

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2 Responses

  1. Ken says:

    Falling far short of “constitutionality of the filibuster” is a practical question–are we gridlocked by the filibuster?

    My answer, which I have written on CoOp before, is a resounding “NO!” It isn’t filibusters that tie up the Senate, it’s the absurd “two track system” that allows some doofus to say “I filibuster” and shunt any piece of legislation off into limbo indefinitely.

    Make ’em really filibuster, like Wayne Morse had to, and we will soon see a breakup of the logjam. Filibusters, and the filibusterers, will be highly visible, and will become (once again) reserved for really important issues, not merely forcing the majority to come up with 60 votes to pass any bill at all.

  2. brooks white says:

    The question is not supermajority, it is superminority.On a weighted basis is Wyoming’s senator being granted more than 1 vote on material legislation that flows to the Senate. Has the Senate achieved disproportionate power relative to the House by reason of cloture requiring 60 votes. No disagreement about two track filibusters and the quality of our present representatives, but the Founding Fathers envisaged minority protection, not minority rule.