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Saturday, April 30, 2005

Senate Rule XXII

Up to this point, I have not chimed in about the current fight over the filibuster. I wanted to do some more research into the history and the constitutional issues at hand. Having done so, here is my take on the situation:

The filibuster is constitutional, but it is well within the right of the majority party to do away with it as they see fit.

In order to understand this, it is necessary to first take a look at what all the fuss is about, i.e. Senate Rule XXII (instituted in 1917 at the behest of Pres. Wilson and modified in 1975), more specifically Part 2 of Rule XXII:
2. Notwithstanding the provisions of rule II or rule IV or any other rule of the Senate, at any time a motion signed by sixteen Senators, to bring to a close the debate upon any measure, motion, other matter pending before the Senate, or the unfinished business, is presented to the Senate, the Presiding Officer, or clerk at the direction of the Presiding Officer, shall at once state the motion to the Senate, and one hour after the Senate meets on the following calendar day but one, he shall lay the motion before the Senate and direct that the clerk call the roll, and upon the ascertainment that a quorum is present, the Presiding Officer shall, without debate, submit to the Senate by a yea-and-nay vote the question:

"Is it the sense of the Senate that the debate shall be brought to a close?" And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn -- except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting -- then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.

This language instituted cloture and by default, continued the tradition of the filibuster established in the mid 1800s.

One of the main constitutional arguments against the filibuster is the statutory interpretation doctrine of expressio unius est exclusio alterius or "to mention one thing may exclude others." That is, since the Constitution does not not mention a supermajority requirement to end a filibuster, such a requirement is therefore excluded. Indeed, as pointed out in this 1997 law review article, there are only 7 places where the Constitution requires a supermajority:
There are seven instances where the Constitution explicitly requires a two-thirds vote. See U.S. Const. art. I, § 3, cl. 6 (Senate's guilty verdict on impeachments); U.S. Const. art. I, § 5, cl. 2 (the expulsion of a member of either house); U.S. Const. art I, § 7, (both houses overriding a presidential veto); U.S. Const. art II, § 2, cl. 2 (Senate's ratification of a treaty); U.S. Const. art. V (both houses proposing a constitutional amendment); U.S. Const. amend. XIV, § 3 (to remove disability from congressional service of those who participated in insurrection); U.S. Const. amend. XXV, § 4 (determination of presidential disability).

In addition, the principle of lex majoris partis has been well established in our country. On their face, I would say that these arguments are very persuasive. However, Article I, Section 5, clause 2 gives each house the ability to impose its own rules of procedure. This ability has been upheld by the Supreme Court, so long as those rules are not inherently unconstitutional.

There is certainly nothing expressly unconstitutional about unlimited debate on matters before the Senate. In addition, as written, Rule XXII places a procedural requirement of a supermajority only on the ending of debate, rather than on the passage of a bill, which I believe would be unconstitutional. Eventhough the argument could be made that it "in effect" creates such a requirement, I believe the filibuster itself to be constitutional.

Now the question arises, if the filibuster is constitutional, can the majority party do away with it? The answer, I believe, is yes. The problem at hand does not arise from Rule XXII by itself , but rather from Rule XXII in conjunction with Rule V Part 2:
2. The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.

Because the Senate only changes 1/3 of its membership every two years, they consider themselves a continuing body and therefore feel that they can keep a permanent set of rules in place, as opposed to the House which re-enacts new rules every two years.

The problem with this approach is that even though 2/3 of the Senators stay, the changing of 1/3 of the Senators can and in fact has, changed the majority makeup of the Senate. This new majority is, as it currently stands, bound by the rules put in place by some earlier session, in effect binding the current Senate to the will of a previous one. This binding or "entrenchment," as it is generally called, flies in the face of the constitutional principle of legislative equality, i.e. one legislative session is equal in power to all other legislative sessions. This means that one legislature cannot bind the hands of future legislatures.

This principle has been repeatedly upheld by the Supreme Court in cases such as CONNECTICUT MUT. LIFE INS. CO. v. SPRATLEY in the opinion of which it stated "each subsequent legislature has equal power to legislate upon the same subject," and REICHELDERFER v. QUINN in which it states "the will of a particular Congress which does not impose itself upon those to follow in succeeding years."

Because of this evidence, I believe that while a filibuster in and of itself is constitutional, the conjunction of rules V and XXII is patently unconstitutional and therefore unenforceable. The majority should be free to set the rules concerning filibuster as they see fit.

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