Tuesday, December 28, 2010

Chafetz (and Appleby et al.) on the Filibuster

The 111th Congress has brought renewed interest in the constitutionality of the filibuster. One expression is the SSRN paper by Josh Chafetz, Cornell Law School, of The Unconstitutionality of the Filibuster, which will appear in the Connecticut Law Review 43 (April 2011 ). Here's the abstract:
This Article, written for the Connecticut Law Review's 2010 "Is Our Constitutional Order Broken?" symposium, argues that the filibuster, as currently practiced, is unconstitutional.

Part I describes the modern filibuster. Although the filibuster is often discussed in terms of "unlimited debate," this Part argues that its current operation is best understood in terms of a 60-vote requirement to pass most bills and other measures through the Senate.

Part II presents a relatively straightforward structural argument that this supermajority requirement for most Senate business is unconstitutional. This Part argues that the words "passed" in Article I's description of the legislative process; "determine" in the Rules of Proceedings Clause; and "consent" in the Appointments Clause must be understood to contain an implicit premise that a determined and focused legislative majority must be able to get its way in a reasonable amount of time. Or, to put it differently, the Constitution cannot countenance permanent minority obstruction in a house of Congress.

Part III responds to the most prominent counterarguments. First, it rejects the counterargument from plenary cameral rule-making authority, arguing that rules made pursuant to this authority still cannot run afoul of the structural principle described in Part II. Second, it rejects the counterargument based on historical pedigree. Surveying the history of the House of Commons, the House of Representatives, and the Senate, it finds no longstanding tradition in Anglo-American legislatures of indefinite minority obstruction. And third, it rejects the counterargument that legislative entrenchment is unproblematic.

Finally, Part IV suggests choreography for eliminating the filibuster. It begins by noting that this is not a matter for Article III courts; the arguments here are - and must be - addressed to constitutionally conscientious Senators. It then suggests that the filibuster need not be eliminated at the beginning of a new Congress; if the filibuster is unconstitutional, then the presiding officer may so rule at any time, and the Senate may uphold that ruling by simple majority. Finally, it notes that the filibuster need not be replaced with a simple majority cloture rule, and it suggests potential alternatives.
Professor Chafetz's paper may profitably be read together with Catherine Fisk and Erwin Chemerinsky’s The Filibuster, which appeared in the Stanford Law Review 49 (1997), and a petition, now circulating within academia, by several eminent scholars who deplore "the sorry spectacle of one bill after another being defeated in the Senate despite having a majority of senators voting for it." The sponsors are:

Joyce Appleby, History, UCLA, retired
Katy Harriger, Political Science, Wake Forest University
Senator Gary Hart, University of Colorado, Denver
Sanford Levinson, University of Texas Law School
Larry Lessig, Harvard Law School
Peter Onuf, History, University of Virginia
Jack Rakove, History, Stanford University
David RePass, Political Science, University of Connecticut, retired
John K. White, Political Science, Catholic University

The petition reads:
We, the undersigned, American historians, political scientists, and legal scholars, call upon our senators to restore majority rule to the United States Senate by revising the rules that now require the concurrence of 60 members before legislation can be brought to the floor for debate and restoring majority vote for the passage of bills.
The sponsors explain that "an email message returned to appleby@history.ucla.edu will affirm your support, and your name, with affiliation, will be added to the petition which we intend to present to a group of senators when the new congress convenes in January."