How to end the filibuster.

The law, lawyers, and the court.
Jan. 6 2011 2:11 PM

How To End the Filibuster Forever

The Senate can kill the rule any time! And with only 51 votes.

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Does the Senate have only a small, magical window for rule-making?

Is the Senate like Cinderella—does it have the power to transform itself in only one limited moment, at the opening of the new Congress? That is one of the two big questions in the filibuster-reform debate that is now taking center stage in the United States Senate. The other is whether the Senate can change the filibuster rule by a simple majority vote, regardless of what the rule itself seems to say. The short answers to these questions are that there are no magic moments in the Senate and no need to muster 60 votes to repeal the filibuster rule. The upper house has the clear constitutional authority to end the filibuster by simple majority vote on any day it chooses.

Let's address the timing question first. Magical things happen to Cinderella when the clock strikes 12. According to the editorial board of the New York Times  and other commentators, the moment every other year in January when the old Congress ends and a new one begins is similarly special. The idea is that only at this moment may a simple majority of the Senate lawfully modify the filibuster rules that in recent years have effectively required 60 votes for any important action in the upper house.

The Times and others are right about the power of the simple majority—more about why in a minute—but wrong about the Cinderella power of the Senate's opening day. A simple majority of determined senators may lawfully change the filibuster rules, even if the existing Senate rules say otherwise, at any time.

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The confusion arises from missing the basic difference between the House and the Senate. Constitutionally, the House is indeed an entirely new body at the beginning of every odd year. The old House legally dies and a wholly new House springs to life. A 30-year veteran who has been speaker for the last decade is no more already a member of the new House than a freshman.

Thus, Day One of a new House is indeed a special moment. Who organizes the lower House on Day One? Who sits in the chair and who guards the doors? Who decides who decides? All of this and more is up for grabs, and the new House must quickly adopt various procedural and parliamentary rules in its opening moments—which is why John Boehner can needle the Democrats by tweaking a lot of rules that applied in the previous House but do not automatically carry over into the new one.

But ever since the Founding, the Senate has been very different from the House on almost everything related to Day One (which, in a separate piece of magic, Senate Majority Leader Harry Reid extended Wednesday until the end of the month). Indeed, the Constitution carefully structured the Senate precisely to ensure that the upper house, unlike the lower house, would never turn over all at once. Thus two-thirds of the Senate's members remain in their seats after an election and at any single moment the vast majority of senators are typically duly seated holdovers.

Unlike the House, the Senate need not begin its session by approving procedural rules. The internal Senate rule allowing filibusters—Senate Rule 22—is not approved biennially at the outset of each new congressional term. Rather, this old rule, initially adopted by the Senate in the 1910s and significantly revised in the 1970s, simply carries over from one Congress to the next by inertia, since the Senate is a continuing body. Similarly, on Day One in the Senate, no leadership elections need occur. The old Senate's leaders simply continue in place, and the Senate can oust the old leaders at any time—by a simple majority vote. The same goes for old rules, including the filibuster rule. It's that simple.

OK, on to the simple majority question: Why can the Senate change the 60-vote rule with only 51 votes? On its face, Rule 22 says otherwise. It provides that any motion to change it cannot be voted on unless a supermajority of senators agrees to end debate. * Thus, the rule seems to block a simple Senate majority from first amending Rule 22 itself and then proceeding to pass a given bill. That's some catch, that catch-22, as Joseph Heller would say.

But the catch-22 makes Rule 22 unconstitutional, which means a simple majority of the Senate may at any time choose to ignore it. This big idea is what's now making the rounds in Washington, D.C.

The principle that each chamber of Congress acts by majority rule unless the Constitution otherwise specifies was a self-evident truth for the Founders. As John Locke had explained in his canonical Second Treatise of Government, majority rule was the natural default principle of all assemblies: "In assemblies impowered to act by positive laws, where no number is set by that positive law which impowers them, the act of the majority passes for the act of the whole and, of course, determines, as having by the law of nature and reason the power of the whole." Building on Locke, Thomas Jefferson's mid-1780s booklet, Notes on the State of Virginia, declared that rule by simple majority "is the natural law of every assembly of men, whose numbers are not fixed by any other law." In written remarks read aloud to the Philadelphia Convention in 1787, Benjamin Franklin described majority rule as "the Common Practice of Assemblies in all Countries and Ages." None of his fellow delegates said otherwise. When state ratification conventions decided whether to adopt the Constitution in 1787-88, nothing in the text specified that they should act by simple majority rule, but this is what every convention did, and in a manner that suggested that this was self-evident.