Senate Rule XXII is Unconstitutional

Update: the filibuster conversation continues here.

Lately, Washington's been focused on the filibuster. Senate Republicans talk of voiding the rule; in response, Democrats threaten to halt or slow other Senate business.

Reasonable people can disagree about whether the filibuster is good policy. But there's no principled basis to the Dems' argument -- or to the particularly shallow analysis in comments on another post -- that the filibuster is Constitutionally required. Indeed, Senate Republicans are plainly correct--the filibuster is affirmatively unconstitutional:

1. The Constitution neither authorizes nor requires the filibuster:
   
   
   • Article I: Article I Section 1 of the Constitution establishes the Senate; the process of approving legislation is set forth in Section 7, which reads in part:

     Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States: If he approve he shall sign it.

     The key word here is "pass" and its meaning.
     
     Several Article I provisions mandate supermajority voting in particular instances. For example, Article I Section 3 specifically requires a 2/3rd supra-majority for impeachment. Article I Section 5 mandates the same 2/3rd vote to expel members. And Article I Section 7 requires a 2/3rd vote of both houses to override a Presidential veto. But none of these Article I provisions require, or even address, the filibuster of Judicial nominations.
   
   
   
   • Article II: The Constitution also mentions the Senate in Article II Section 2 clause 2, in the context of Presidential power:

     He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

     As Stephen Calibrese, professor at Northwestern University Law School, noted in the May 14, 2003, WSJ, "Exceptions to the constitutional principle of majority rule exist, but they are enumerated in seven express situations where a two-thirds vote is required." None of the seven exceptions authorize or address filibustering judges.
   
   
   
   • The Framers intentionally rejected the filibuster: Contrary to Senator Chuck Hagel's contention, the Framers deliberately rejected expanding "minority rights." As Constitutional co-author Alexander Hamilton explained in the Federalist Papers (number 22), "the fundamental maxim of republican government . . . requires that the sense of the majority should prevail." James Madison concurred in Federalist 58:

     It has been said that more than a majority ought to have been required for a quorum; and in particular cases, if not in all, more than a majority of a quorum for a decision. That some advantages might have resulted from such a precaution, cannot be denied. It might have been an additional shield to some particular interests, and another obstacle generally to hasty and partial measures. But these considerations are outweighed by the inconveniences in the opposite scale.
     
     In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority. Were the defensive privilege limited to particular cases, an interested minority might take advantage of it to screen themselves from equitable sacrifices to the general weal, or, in particular emergencies, to extort unreasonable indulgences. Lastly, it would facilitate and foster the baneful practice of secessions; a practice which has shown itself even in States where a majority only is required; a practice subversive of all the principles of order and regular government; a practice which leads more directly to public convulsions, and the ruin of popular governments, than any other which has yet been displayed among us.

   In sum, the filibuster isn't in, nor was it intended to be part of, the Constitution. As Philip Terzian says, it's "a Senate rule, not a constitutional requirement." And it's a recent one--the current Senate rule was adopted during the Wilson Administration, not by Hamilton or Madison.


2. Senate Rule XXII is subordinate to the Constitution: The filibuster derives from Senate Rule XXII(2), which establishes the necessity of 60 votes to close off debate. Article 1 Section 5 authorizes both Senate and House to establish rules. However, a rule can neither augment Congressional authority nor trump the Constitution, as the Supreme Court confirmed in U. S. v. Ballin, 144 U.S. 1, 5 (1892):

   The constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. But within these limitations all matters of method are open to the determination of the house, every rule must be within the scope of the body's Constitutional authority and not inconsistent with any Constitution provision.

   As an example, a rule giving Senators a binding vote before withdrawing from a treaty would be unconstitutional because the Constitution limits the body's scope to "advice and consent" upon the adoption of treaties, without mentioning revocation.



3. The filibuster rule contradicts the Constitution: In the absence of any Constitutional provision authorizing the filibuster, the question is whether the Constitution forbids it. It does. Returning to Article II Section 2 clause 2:

   He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

   The first clause (up to the semicolon) requires a supermajority of the Senate ratify treaties. But no such super-majority is specified in the very next "appointment" clause. A semicolon is equivalent to a period; the remainder of the text is a different sentence expressing a different thought, as shown by repeating the subject "he."
   
   Traditional rules of legal interpretation include "expressio unius est exclusio alterius," the mention of one thing excludes others; in other words, the presumption that omissions are intended. 2A Sutherland, Stat. Const. §§47:23-47:25 (6th ed.). Here, the Framers intentionally distinguished between majority and super-majority voting. Moreover, as evidenced in the Federalist Papers, they considered, and rejected, the alternative. The fact that the Constitution mandates supra-majority voting in some instances demonstrates the Framers intended to exclude it elsewhere.
   
   The vast majority of judges and scholars agree. According to Vikram David Amar, professor of law at Hastings College of the Law and a former Supreme Court clerk,

   [O]rdinary 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.

   Former White House Counsel Douglas Kmiec agrees:

   The Framers, after all, knew how to provide for supermajorities when they wanted them. . . . In all, there are seven situations in which the Constitution explicitly requires more than a majority, but arguably not otherwise.

   Writing in the Harvard Journal of Law & Public Policy, Martin Golds and Dimple Gupta quote Democratic Senator Hubert Humphrey in 1953:

   The Constitution, he observed, listed only a few instances when more than a majority was needed to act; all other actions, including choosing Senate rules, were to be decided by majority vote.

   Further confirmation comes from Thomas Jefferson's Manual of Parliamentary Procedure written when he was Vice President and therefore President of the Senate. Section 41 of Jefferson’s Manual states: "The voice of the majority decides. For the lex majoris partis is the law of all councils, elections, etc., where not otherwise expressly provided."



4. The Supreme Court already addressed the issue--and upheld a simple majority: In Ballin, 144 U.S. at 6, the Court reaffirmed the application of expressio unius to majority voting:

   [T]he general rule of all parliamentary bodies is that, when a quorum is present, the act of a majority of the quorum is the act of the body. This has been the rule for all time, except so far as in any given case the terms of the organic act under which the body is assembled have prescribed specific limitations. As, for instance, in those states where the constitution provides that a majority of all the members elected to either house shall be necessary for the passage of any bill. No such limitation is found in the federal constitution, and therefore the general law of such bodies obtains.

   The Ballin court, 144 U.S. at 7, quoted 1 Dill. Mun. Corp. (4th Ed.) 283, saying "in the absence of special provisions otherwise, a minority of the select body, or of the committee or agents, are powerless to bind the majority or do any valid act."



5. The House repealed its filibuster over 100 years ago without challenge: Prior to 1889, House rules included a similar filibuster. And Speaker of the House Thomas Reed successfully called a vote and repealed it--with a simple majority. If the House can drop the filibuster, so can the Senate.

Conclusion: The Constitution doesn't authorize a filibuster. In fact, the Framers mandated super-majority voting in some circumstances, but rejected it elsewhere. So the filibuster is unconstitutional, and no mere Senate rule can save it.

More:

Gindy says Senator Joseph Lieberman (D-Ct) agrees.

Update:

Follow-on thoughts and reply here.