Sen. Kyrsten SinemaKyrsten SinemaFilibuster-backers are Framer-wannabes Liberals disappointed after Biden’s first year Sunday shows preview: COVID-19 cases surge amid omicron wave MORE (D-Ariz.) signaled — ambiguously — that she’s thinking again about whether to support efforts to modify the filibuster to allow Sen. Joe ManchinJoe ManchinFilibuster-backers are Framer-wannabes Liberals disappointed after Biden’s first year Sunday shows preview: COVID-19 cases surge amid omicron wave MORE’s (D-W.Va.) Freedom to Vote Act to pass in the Senate. In a statement to Politico by her communications director, John LaBombard wrote:
“[Sinema] continues to support the Senate’s 60-vote threshold, to protect the country from repeated radical reversals in federal policy which would cement uncertainty, deepen divisions, and further erode Americans’ confidence in our government. … Senator Sinema has asked those who want to weaken or eliminate the filibuster to pass voting rights legislation which she supports if it would be good for our country to do so …. As Senator Sinema said six months ago, it is time for the Senate to publicly debate its rules, including the filibuster, so senators and all Americans can hear and fully consider such ideas, concerns, and consequences.”
What’s striking about this debate is the presumption that the modern filibuster is constitutional. The Supreme Court is not going to rule on the question, but even the most basic understanding of our constitutional history shows that the filibuster — as it has evolved — is plainly against the design of the Constitution.
That qualification — “as it has evolved” — is critical. We forget that for most of our history, the filibuster did nothing more than slow consideration of a bill in the Senate. That brake was effected through a senator’s willingness to stand on the floor of the Senate and speak. Obviously, the Constitution envisions members of Congress having the right to free debate. It was therefore a clever hack of the Constitution by slavery-lover John C. Calhoun (D-S.C.), 50 years after its framing, to exploit that right to effectively slow the passage of legislation. If securing the right of every senator to speak for as long as they wish would, in the judgment of the body, mean that considering a bill would take too long — given the other work that the Senate had to complete — the consequence of that judgment would be that a bill is not considered any further. Until 1965, the only bills ever effectively stopped in this way were bills related to civil rights. including, to the Senate’s great shame, bills that would have stopped the lynching of African Americans across the American South.
But the modern filibuster has nothing to do with securing anyone’s right to speak. The modern filibuster simply changes the rules for whether a bill can be considered at all. Except for certain nominations or budget reconciliation, the modern filibuster effectively gives any senator the right to change the requirement for a bill passing the United States Senate. Under the modern filibuster, any senator has the power to require that the bill secure 60 votes to even be considered on the floor of the Senate. That makes the Senate a super-majority deliberative body, rather than a simple majority deliberative body.
Yet this requirement is plainly inconsistent with the Framers’ design. And so, why does anyone think that it’s constitutional for the Senate to enact such a rule? Again, I don’t mean that the Supreme Court will strike them down. There are plenty of reasons the Court does not police the work of the Senate. I mean more simply, why would any senator believe, in good faith, that changing the majority requirement in the Senate was within their constitutional power?
The Framers of our Constitution knew how to craft a super-majority Constitution. Indeed, the first generation of our Framers did just that. The Articles of Confederation created a super-majority Congress. Most ordinary legislation required a 2/3ds vote to pass. The reasons they did that are exactly the reasons Sinema promotes today: They too believed that a supermajority requirement would foster collaboration and cooperation. They too thought it would avoid wild shifts in critical policy.
But what they and America quickly discovered was that they were completely wrong and that the Articles were a complete flop. No republic can govern itself if ordinary legislation requires a supermajority. And when our Framers debated our Constitution, they self-consciously rejected the idea of a supermajority for ordinary legislation. No doubt there are places in the Constitution where a supermajority is required — 6 to be precise. But beyond those exceptions, the rule of our Constitution is majoritarian.
So the question we should be asking the senators like Sinema, who are trying to recreate our first, and utterly failed constitution, is just this: By what right? Who are you to amend our Constitution? Who are you to betray its fundamental commitment to majoritarianism? The Constitution embeds equality, including equality on the basis of sex. Does any senator have a right to promote a rule that banned women from the Senate, just because they thought it a good idea?
If the senators who support the modern filibuster want to change the Constitution to make the Senate a supermajority chamber, let them propose that amendment, pass it through each house by a 2/3ds vote, and then secure ratification in 3/4ths of the states. But until that happens, there is no justification for hiding behind a plainly anti-constitutional rule. Dean Chemerinsky and Bert Neuborne are right that Vice President Harris could effectively declare the rule unconstitutional — at least so long as she could secure the agreement of 50 members of the Senate. But even without that happening, we all should be asking these founder-wanna-be senators, who made you the architects of our Constitution? And by what right do you get to amend our Constitution, without the people’s say?
Lawrence Lessig is Roy L. Furman Professor of Law & Leadership at Harvard Law School. He is founder of Equal Citizens and Author of “They Don’t Represent Us.”