04/10/2013 02:01 pm ET | Updated Jun 11, 2013

Senate's Filibuster Riot Destabilizes Government, Imperils Foreign Purchase of U.S. Bonds, Violates the Constitution

For several years , Senate Republicans have held the U.S. Senate hostage despite their minority status and losses in the last election. Senate Rule XXII requires 60 affirmative votes to obtain consideration of a measure and then to vote on final passage. That rule also requires a vote by two-thirds of senators "present and voting" to amend the 60-vote requirement. The two supermajority requirements enable the Republican minority to force the 55 member majority to muster at least 60 votes simply to obtain a vote on taking up measures and, thereafter, brining such measures to a vote on final adoption. The unprecedented use of the filibuster has transformed their minority of 45 into, in effect a supermajority which needs no more than 41 votes to block any action that requires Senate approval. Indeed, the threat of a filibuster enables the minority to exact concessions that the electorate had already rejected in several elections. This sabotage of the democratic process not only shuts down the legislative process, short circuits the confirmation of Presidential nominees, but also threatens large foreign purchases of U.S. bonds that lower interest rates for federal, state and business borrowing..

Despite widespread criticism, Rule XXII's defenders argue that the Constitution empowers both houses of Congress to establish their own rules of procedure; the Senate is a "continuing body" whose rules continue until modified according to its amendment provision requiring a two-third supermajority.

Rule XXII's Supermajority Requirements Are Unconstitutional Rule XXII's amendment provision violates the command of Article 1, section 3 and its successor, the Seventeenth Amendment, that "each Senator shall have one vote." Moreover, Article V of the Constitution, governing its amendment, provides "that no state, without its consent, shall be deprived of its equal suffrage [vote] in the Senate." The one-vote and equal suffrage provisions make clear that each senator's vote must be the equal of every other senator's vote, otherwise the votes of senators in a successful minority would be worth more than the votes of senators in a defeated majority. Thus, Rule XXII's two supermajority requirements, to impose cloture and to amend the supermajority provision, violate the Constitution's one vote per senator provision.

The Supreme Court Has Declared House and Senate Rule Making Subject to Constitutional Limits Rule XXII's defenders also cite the Constitution's Article I, section 5 provision that "each house may determine the rules of its proceedings;" that provision contains no express limitation. But the Supreme Court long ago declared that: "In the exercise of their constitutional power to determine their rules of proceedings, the Houses of Congress may not 'ignore constitutional restraints...,'" United States v. Ballin, 144 U.S. 1, 5 (1892). To permit Rule XXII's supermajorities requirements to govern would enable a Senate rule to negate Constitutional provisions providing that each senator have one vote. It would be absurd to argue that a Senate Rule can trump the Constitution's equal suffrage provision which, the Constitution says, cannot be done by the amending process itself without state consent.

Weak "Continuing Body" Concept; Some Argue, It Is Demonstrably Not So For All Purposes The concept rests upon the fact that at least one third of the Senate is scheduled for election to each Congress; the other two-thirds continue until the completion of their terms. An opinion by the House of Representative's parliamentarian, in addressing an issue concerning the House, noted that the House is not a continuing body in contrast to the Senate which, he wrote, is. That opinion did not involve the Senate and the remark was superfluous; the parliamentarian had no need to consider the Senate in addressing the House issue. In McGrain v. U.S, the Supreme Court cited that House opinion with approval.

Some argue that, even if the Senate is a continuing body, it is not so for all purposes. For example, the duration of a Congress is two years; when that period concludes, all pending bills in both House and Senate lapse. Thus, the argument goes, when a new Congress convenes, the Senate starts its processes anew, making it free to replace old rules, including Rule XXII's cloture and amendment provisions, by its usual mode -- majority vote.

Opponents of this route name it the "nuclear option," implying extreme action, perhaps stirring misgivings about the nation's use of the atomic bomb. In any event, the label and whatever it conjures up have proven fatal to proposed changes so far..

The Constitution Specifies Supermajorities -- When It Wants Them The Constitution does require a Senate supermajority vote to perform some of its functions, such as removing a president for "high crimes and misdemeanors," expelling a member, ratifying treaties and overriding vetoes. Such provisions show that the Founders knew how to prescribe a supermajority. They did not do so for amending Senate rules or achieving cloture. Moreover, a rule of statutory interpretation, so hoary that it is cast in Latin, provides that "the specification of one thing implies the exclusion of others."

Remedying Rule XXII's Unconstitutional Amendment Provision Is Not Radical -- It Is An Obligation Doing so serves the rule of law; continuing to honor the supermajority requirements of Rule XXII dishonors the Constitution. With that litter swept away, the Senate can comfortably move to amend the patently one-sided amendment by majority vote. At any time!

Prudential Considerations Warrant Undoing Rule XXII's Chokehold on Legislation and Confirmations Many foreign individuals, institutions and governments, attracted by the U.S. government's political stability, bring substantial savings and investments here. For example, during the 1970's oil shock chaos, much of the enormous wealth the United States transferred to OPEC countries by purchasing oil at unprecedented prices quickly came back to us as investments and savings, including vast purchases of U.S. government obligations. That kind of capital flow, from all over the world and not just for exorbitant oil sales, continues, helping to keep interest rates low for federal, state and local governments and business borrowing. The runaway filibuster undermines the trust that animates such a valuable pattern. The Senate should curb filibuster abuse so as to conserve the political stability that contributes to our role as the world's leading economy.

Cloture Does Not Quash Debate
Some -- perhaps many -- regard the filibuster as necessary for minorities to protect their concerns to be heard. However, the ability to achieve a vote by cloture does not mean stifling debate. Rule XXII has long provided for extensive post-cloture debate. Debate need not be endless to make it adequate to inform senators and the electorate of misgivings over a proposal or a nominee.

Runaway Filibusters Imperil the Democratic Process Itself Polls repeatedly show popular disgust that Congress is subject to deadlock, held hostage by a minority in the Senate and a nominal majority in the House achieved through gerrymandering. To continue these unfortunate patterns unchecked is to run the risk that the United States will lose the indispensable element of democratic government -- the consent of the governed.

Merton C. Bernstein is Coles Professor of Law Emeritus at Washington University, originated Washington University Law School's Congressional Clinic and served as its director for 20 years. Earlier, he was counsel to U.S. Senator Hubert H. Humphrey and Legislative Assistant to Senator Wayne L. Morse.