Majority Leader Harry Reid flanked by other Senate Democrats / Talk Radio News Service
When Congress resumes later this month, the Senate may finally change its rules concerning the filibusterthe procedure whereby the minority can block legislation from a final vote unless the majority can muster a supermajority of 60 votes. Senator Harry Reid says he is committed to reforming the filibuster, and several proposals are already being discussed.
As debate about the Senate filibuster continues and policymakers choose sides, a distracting, artificial controversy about the mechanics for changing the Senates rules, including those governing the filibuster, continues to infect the discussion.
Some senators and scholars contend that the approval of two-thirds of Senators (67) is necessary to change the bodys rules. Whatever the merits of altering the filibuster, the Constitution, Supreme Court precedent, Senate history, and democratic tradition make it clear only a simple majority (51) is required.
The Constitution nowhere requires a two-thirds vote for changing Senate rules and does not even mention filibusters. The Constitution states that each house may determine the rules of its proceedings, and the document requires a two-thirds vote only for impeachments, expelling a member, ratifying treaties, overriding presidential vetoes, and proposing constitutional amendments. There is simply no reason to believe that the framers of the Constitution thought a two-thirds vote could be required for the Senate (or the House) to change its rules. The straightforward inference is that, as a constitutional matter, only a simple majority is required.
Nor does the Senates unique role in our federalist government justify a heightened bar for rules changes. In the debates about the Constitution and in the Federalist Papers, the framers used the notion of checks and balances to describe the relationship of one branch of government to the other. They did not intend a minority of elected representatives to serve as a further check or balance within one of the democratically elected branches. Furthermore, when a filibuster is used to block votes on laws or presidential nominees, it gives the minority an absolute veto, which is hardly a mere check on the majoritys will.
Were a super-majority necessary to change the Senates rules, new, democratically elected lawmakers would be beholden to past legislative choices. The dead hand of a previously elected bodyeven the 22 senators representing just 11 states that sat in the first Senate in 1789would constrain the functioning of the current one. The Supreme Court recognized this problem nearly 160 years ago when it wrote, No one legislature can, by its own act, disarm their successors of any of the powers or rights of sovereignty confided by the people to the legislative body.
Even vice presidents have agreed. Although often overlooked, one of the duties of the vice president is to act as president of the Senate, including issuing advisory opinions about internal Senate procedure. Vice Presidents Nixon, Humphrey, Rockefeller, and Cheney all confirmed the inherent constitutional power of a majority of Senate members to enact rules changes. As Nixon described it: The right of the current majority of the Senate at the beginning of a new Congress to adopt its own rules cannot be restricted or limited by rules adopted by a majority of the Senate in a previous Congress.
Arguments equating the current rules reform effort with the mid-session changes contemplated in 2005 further miss the mark. As a policy matter, mid-game rules changes should not be easy. In that context, the Senate may reasonably, and constitutionally, adhere to a two-thirds requirement. But concerns over changing the rules mid-stride are not at issue when rules are modified as the first order of business in a new Senate.
Unfortunately, this false debate has created a myth that if the 113th Senate changes the rules with a majority vote, it will forever unlock the door to other rules changes by future Senates. But that door was never locked. And while the Senate has only opened that door judiciously and infrequently, it was, and is, always available.
Charles Fried is Beneficial Professor of Law at Harvard Law School and former Solicitor General under President Reagan.
Frederick A.O. Schwarz, Jr. is Chief Counsel of the Brennan Center for Justice at NYU School of Law and previously served as Chief Counsel to the Church Committee (formerly known as the Senate Select Committee to Study Governmental Activities with Respect to Intelligence Activities).