How to Kill the Filibuster with Only 51 Votes

Let's face it, the GOP's "Party of No" strategy is working. Democrats lost a once-unlosable Senate seat to a no-name Republican last Tuesday. Progressive voters are depressed by the many pounds of flesh conservatives extracted from cherished priorities such as health-care reform. Right-wing voters are jubilant about the prospect of a government shutdown.

With conservatives salivating, and progressives seriously questioning whether American government is too crippled to solve major problems, it's difficult to imagine that Democrats won't take additional losses next November. Even if they don't, however, a minority bent on total obstructionism now enjoys the power to veto nearly any bill or nominee. With the exception of the annual budget, literally nothing is likely to pass the Senate for the next three years.

It doesn't have to be this way, however. A long line of Supreme Court decisions forbid former legislators from tying the hands of their successors. Thus, although current senators may choose to impose a supermajority rule on themselves, they cannot impose such a rule on a new Senate. Under the Supreme Court's precedents, just 51 senators will have a brief opportunity to reform or eliminate the filibuster next January -- but this opportunity will disappear if they do not act right away.

The Supreme Court's first clear pronouncement on whether past lawmakers can bind future lawmakers was an 1879 case known as Newton v. Commissioners. In that case, the Ohio Legislature had passed a law in 1846 providing that the Mahoning County seat was "permanently established" at Canfield, Ohio. Nevertheless, in 1874, state lawmakers passed a new law moving the county seat to Youngstown, Ohio.

Canfield's residents were not amused. During its time as Mahoning County seat, Canfield made significant investments in its county government, purchasing land to house county buildings and spending a significant sum to build a courthouse "suitable for the transaction of the public business of the county." Losing the county seat was also a tremendous blow to local businesses, as Mahoning County residents would routinely travel to Canfield to vote or to petition their government, patronizing Canfield establishments throughout their visit.

Nevertheless, the Supreme Court held that the 1874 Legislature had the power to take what the 1846 Legislature had given. In the Court's words, newly elected legislators "have the same power of repeal and modification which [past legislators] had of enactment." Lawmakers cannot tie the hands of their successors.

In its 1932 decision in Reichelderfer v. Quinn, the Court established that Newton's holding applies as much to acts of Congress as it does to state laws. In that case, Congress previously enacted a law providing that a large plot of land in D.C. was "perpetually dedicated and set apart as a public park or pleasure ground for the benefit and enjoyment of the people of the United States." A later Congress, however, changed this law to require that a fire station be built on part of the set-aside land.

The justices unanimously rejected a challenge to this new law. Just as in Newton, "the will of a particular Congress ... does not impose itself upon those to follow in succeeding years."

Taken together, these two decisions open a narrow window every two years, when the Senate's newly elected members take their seats. During this time, only 51 senators (or 50 senators plus the vice president) are needed to change the filibuster's 60-vote threshold, eliminate the 30 hours of delay that the minority is allowed to demand between a successful cloture vote and a final vote on a filibustered bill, or even eliminate the filibuster entirely.

The reason why the filibuster exists is because the rules of the Senate say that it exists. Article I of the Constitution provides that "each House may determine the rules of its proceedings," so the Senate is allowed to create a rule requiring 60, 70, or even 100 votes before it can proceed with any business.

What the Senate is not allowed to do, however, is tell future senators what rules must apply to their proceedings. Because Reichelderfer prohibits a previous Congress from tying the hands of a future Congress, the rules governing Senate procedure in 2010 cannot bind a newly elected Senate in 2011. The old Senate rules essentially cease to exist until the new Senate ratifies them, so a determined bloc of 51 senators could eliminate the filibuster altogether by demanding a rules change at the beginning of a new session. Once the new Senate begins to operate under the old rules, however, this can function as a ratification of the old rules -- essentially locking those rules in place for another two years.

Proponents of locking the Senate rules in place argue that, because only one-third of the Senate's membership stands for election every two years, the seating of new senators does not trigger the clean slate envisioned by Reichelderfer and Newton because two-thirds of the existing senators have already acquiesced to the old Senate rules. A person who is adversely affected by a law enacted sans filibuster could raise this "continuing body" theory of the Senate in a lawsuit challenging whether that law actually passed the Senate in the first place. Given the Roberts Court's penchant for mischief-making, it's possible that the justices would seize upon this argument and thwart the will of the Senate majority should such a majority vote to abolish the filibuster next January.

Such a turn of events, however, is exceedingly unlikely. For one thing, if the Supreme Court accepts the continuing-body theory, it would do a whole lot more than simply lock the filibuster in place. Were the mere existence of a legislator who has not stood for election since a law or rule was enacted enough to prevent newly elected lawmakers from repealing a recently enacted law, then all federal laws could be enacted with a six-year shield of invulnerability -- untouchable until the last senator present when the law was enacted stands for a new election. Nothing in the Supreme Court's precedents suggest that erecting such a shield would be acceptable, however -- indeed, they say quite the opposite. As far back as the Court's 1810 decision in Fletcher v. Peck, the justices unanimously declared that "one legislature is competent to repeal any act which a former legislature was competent to pass," acknowledging no exception for laws enacted within the last three election cycles.

There is also a profoundly practical reason why the Court is unlikely to undo a change to the Senate rules -- it lacks the authority to do so. Under a line of precedents stretching back to its landmark 1803 decision in Marbury v. Madison, the Court will actually refuse to hear any case involving a matter that is "textually committed to the political branches." In other words, if the text of the Constitution itself provides that a particular question must be resolved by the Senate, the House, or the White House, the Supreme Court won't stand in that branch's way.

Recall, then, that the Constitution does provide that "each House may determine the rules of its proceedings." Thus, the Senate's rules are up to the Senate, and the Senate alone, and the Supreme Court would be grossly overstepping its bounds to second-guess the senators.

Now that it has enough votes to sustain a filibuster, it is exceedingly likely that a Senate minority bent on pure obstructionism will have enough votes to block virtually all of the majority's legislative agenda. Meanwhile, health-care costs will continue to grow at three or four times the rate of wage growth. Long-term deficits will continue to threaten the future of American prosperity. Largely unregulated markets will remain a time bomb that could trigger another great recession, and catastrophic climate change will continue to threaten the very existence of many island and coastal civilizations.

Fifty-one senators will have the power to change this outlook next January -- but they get exactly one chance to act.

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