SENATE 60-VOTE RULE UNCONSTITUTIONAL?

Here's a Northwestern law professor's defense of the constitutionality of the Senate's 60-vote cloture rule (reproduced below from the Wall Street Journal).

To the Editor:

Thomas Geoghegan argues that the filibuster rule, which requires 60 senators to end debate, is inconsistent with the Constitution, because the Constitution expressly provides for supermajority rules in specific cases and because the vice president is given a casting vote in cases of a tie. Both arguments are wrong.

Each house of Congress has the right under Article I to make rules for its own proceedings. That the Constitution sometimes requires a supermajority rule does not negate a house’s authority to impose such a voting rule at other times any more than the requirement that the president report to Congress about the “State of the Union” precludes the president’s legislative communications on other matters.

The casting provision tells how to resolve ties, but does not suggest that all votes in the Senate must be capable of being equally divided, particularly because the Constitution itself, as in cases of impeachment, contemplates votes that cannot be so resolved.
John O. McGinnis
Chicago, Jan. 11, 2010
The writer is a professor at Northwestern Law School.

While the issue is arguable, I find Thomas Geoghehan’s case against the supermajority rule more compelling:
http://www.nytimes.com/2010/01/11/opinion/11geoghegan.html

While Article 1 of the Constitution allows each house of Congress to make its own rules, it does not give them latitude to make rules that are unconstitutional. (For example, the Senate could not make a rule refusing to seat Blacks.) So it is not enough to argue the 60-vote rule is constitutional because Article 1 allows the Senate to make its own rules.

The issue should be decided not on the basis of whether the Senate has a right to make its own rules under Article 1, but rather whether the rules the Senate makes are themselves constitutional. The idea of a permanent supermajority requirement clearly goes against the fundamental Constitutional principle of “majority rule” except in the cases where the Constitution specifically requires a supermajority.

Here are some of the highlights of Geoghehan’s argument:

As revised in 1975, Senate Rule 22 seemed to be an improvement: it required 60 senators, not 67, to stop floor debate. But there also came a significant change in de facto Senate practice: to maintain a filibuster, senators no longer had to keep talking. Nowadays, they don’t even have to start; they just say they will, and that’s enough. Senators need not be on the floor at all. They can be at home watching Jimmy Stewart on cable. Senate Rule 22 now exists to cut off what are ghost filibusters, disembodied debates.

As a result, the supermajority vote no longer deserves any protection under Article I, Section 5 — if it ever did at all. It is instead a revision of Article I itself: not used to cut off debate, but to decide in effect whether to enact a law. The filibuster votes, which once occurred perhaps seven or eight times a whole Congressional session, now happen more than 100 times a term. But this routine use of supermajority voting is, at worst, unconstitutional and, at best, at odds with the founders’ intent.
(Emphasis mine.)

And later:

So on the health care bill, as on so many other things, we now have to take what a minority of an inherently unrepresentative body will give us. Forty-one senators from our 21 smallest states — just over 10 percent of our population — can block bills dealing not just with health care but with global warming and hazards that threaten the whole planet.

I am confident the founding fathers never intended that 10% of the population should have veto power over all legislation.

Finally, Geoghehan summarizes the situation well with his parting shot:

In Federalist No. 75, Hamilton denounced the use of supermajority rule in these prophetic words: “The history of every political establishment in which this principle has prevailed is a history of impotence, perplexity and disorder.” That is a suitable epitaph for what has happened to the Senate.

Read his article about what can be done to remedy the situation.