sequential if a simple majority will ultimately win.
The Constitution states that a bill must “pass” the Senate and the House before it may be enacted into law. As legal scholars have forcefully argued, the term “pass” — like the term “elect” — embodies a principle of majoritarianism that binds both chambers with equal force.5 This makes perfect sense — after all, that is how we still understand the plain meaning of those terms today.
Finally, opponents regularly try to quash discussions of reform with a constitutional “trump” card — they claim, to quote The Wall Street Journal, that “without the ability to filibuster, the Senate would become like the House, able to pass whatever the majority wants.”6 In their view, the filibuster is necessary for the Senate to play its proper role in the bicameral system.
In fact, the modern filibuster regularly derails the proper working of Congress. After all, if the Senate is gridlocked, the House’s legislative accomplishments become largely meaningless.
Appropriations bills are a prime example. By constitutional design, these bills originate in the House before moving to the Senate for amendment. Although the House regularly submits these measures in a timely f
ashion, the Senate consistently fails to enact them by deadline.7 One large reason for this failure is the self-perpetuating pattern of an increasing number of filibusters and a growing workload8 — as a result, even many uncontroversial legislative items never reach the Senate floor.
More generally, there is reason for serious constitutional concern when a group of 41 senators can exercise a minority veto over the entire legislative agenda. This disrupts the system of checks and balances built into our governmental structure. The result may be the infringement of another branch’s power — this is what happens, for example, when the president is prevented from filling key executive positions. Or Senate gridlock may lead to an expansion of power in the other branches as they are allowed to operate unchecked. Either way, our democracy is left in a vulnerable position.
In sum, there is no express or implicit constitutional right to filibuster. The filibuster actually takes the Senate far from its constitutional ideal.
1. Examining the History of the Senate Filibuster: 1789-2008, Hearing before the Senate Comm. on Rules & Administration 1 (April 22, 2010) (statement of Senator Pat Roberts).
2. Examining the Filibuster: The Filibuster Today and its Consequences, Hearing before the Senate Comm. On Rules & Administration 2 (May 19, 2010) (statement of Senator Robert Byrd).
3. See Sarah Binder & Steven Smith, Politics or Principle? Filibustering in the United States Senate 29-39 (1997)
4. The Federalist No. 22 (Alexander Hamilton).
5. See Chafetz & Gerhardt, supra n. 8, at 249 (Chafetz Opening Stmt.) (citing Jed Rubenfeld, Rights of Passage: Majority Rule in Congress, 46 Duke L.J. 73, 83 (1996)).
6. Editorial, A Liberal Supermajority, Wall St. J., Oct. 17, 2008, at A12.
7. Thomas Mann & Norman Ornstein, Is Congress Still the Broken Branch?, in Congress Reconsidered Table 3-3 (9th ed. 2009).
8. See Binder & Smith, supra n. 3, at Table 1-3.
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