There is no constitutional right to filibuster
(As delivered at Netroots Nation, 24 July 2010.)
Debates about Senate procedural reform very often have constitutional undertones. For instance, at a recent hearing on filibuster reform before the Senate Rules Committee, Kansas Sen. Pat Roberts (R) argued: “The founding fathers had the foresight to create an institution that was not based on majority rule, but where each state … [has] two Senators to speak out on their behalf. It is that power to speak, the right to unlimited debate that is the hallmark of the Senate.”1 Similarly, the late Sen. Robert Byrd (D-W.Va.) recently stated: “Our Founding Fathers intended the Senate to be a continuing body that allows for open and unlimited debate and [for] the protection of minority rights. Senators have understood this since the Senate first convened.”2
Statements like these generally support one of the following constitutional claims. The first is that senators with strong, minority-held viewpoints have a constitutional right to prolong debate, even indefinitely. A related, more nuanced, argument begins by pointing out that our Founders envisioned the Senate as a careful, deliberative body that would check the rashness of the House of Representatives. Accordingly, some argue, the Framers intended that senators be able to debate without limit. Some take this argument further: They claim that the filibuster is such a central part of the Senate’s original structure that the Senate could no longer fulfill its proper role without it.
I am going to address and — I hope — refute each of these claims.
First, the text of the Constitution says nothing about the filibuster nor about preserving the debate rights of senators with minority-held viewpoints. In short, there is no express right to filibuster.
In fact, there is only one constitutional provision pertaining to Senate procedure: It simply states, “Each House may determine the rules of its proceedings.” This provision, although broadly worded, does not grant unlimited power to the Senate. Just as the Senate is barred from passing laws that conflict with the Constitution, it also cannot pass rules that conflict with the Constitution. So, for instance, the Senate surely could not pass a rule prohibiting Catholics from participating in debate — clearly, such a rule would be at odds with the First Amendment. Sen. Udall will speak more about constitutional limitations upon the Senate’s rule-making power, so I will let him elaborate. But keep this point in mind.
Filibuster fans also regularly claim that the Framers envisioned unlimited debate in the Senate, even if they did not write it into the Constitution. To support this argument, they inevitably tell a certain story about George Washington. According to legend, the first president likened the House of Representatives to a hot cup of coffee. As for the Senate, he explained, “we pour legislation into the senatorial saucer to cool it.”
Practical questions aside (is this really the best way to cool hot coffee?), this metaphor tells us nothing about the filibuster.
There is no question that the Framers intended the Senate to be a thoughtful body. But they sought to achieve this goal through a variety of structural features meant to facilitate deliberation — such as the Senate’s smaller size, longer terms, older members, and egalitarian structure.3 There is no indication that the Framers anticipated for the Senate’s rules to allow unlimited debate.
In fact, the first House and the first Senate had nearly identical rulebooks. Both included what’s called a motion for a “previous question.” Today, the House uses this motion to allow a simple majority to cut off debate. The Senate removed this provision in 1806, not — as far as anyone can tell — due to a desire to promote unlimited debate, but because it was unnecessary. At the time, the Senate was a small, fraternal place with little need to reign in relentless obstruction. Although this move ultimately allowed the filibuster, that was not the original intention. Removing the previous question m