Chafetz & Gerhardt Debate the Constitutionality of the Filibuster
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.