05/22/2012 04:25 pm ET Updated Jul 22, 2012

The Constitution Rules, Even Over Senators

If the U.S. Senate adopted rules allowing its female members to vote only on even-numbered days, or requiring male senators to stand on their heads when voting, constitutional law experts would rightfully race to the courthouse to file suits challenging it.

So why are some of those experts racing to their word processors now to write essays arguing that the Constitution gives the Senate authority to adopt any rules it chooses, and that those rules are immune from scrutiny in the courts?

Since Common Cause filed a lawsuit in federal court challenging the constitutionality of the Senate's filibuster rule, some commentators have labeled our litigation "dead on arrival." To justify their opinion, they cite Article I, Section 5 of the Constitution, which says that each house of Congress "may determine the Rules of its Proceedings." That language, they argue, gives senators license to adopt whatever rules they want, free from review by the courts.

We disagree of course. We're convinced that the Senate's power to adopt its own rules is limited to rules that do not conflict with the Constitution.

The Supreme Court ruled over 100 years ago, in United States v. Ballin, that the House and Senate lack authority to adopt rules that conflict with the Constitution. Specifically, the justices said that while "the Constitution empowers each house to determine its rules of proceedings, [i]t may not by its rules ignore constitutional restraints or violate fundamental rights."

In another case, as recently as 1983, the Court of Appeals for the District of Columbia stated that "if Congress should adopt internal procedures which 'ignore constitutional restraints or violate fundamental rights' it is clear we must provide remedial action."

We believe the filibuster rule does just that. Once rarely used to extend Senate debates, the filibuster now is routinely used to block debate. The Senate's current Republican minority has exposed the rule's fatal flaw: the filibuster tosses majority rule aside and imposes a supermajority requirement for Senate action. It gives control to just 41 of 100 senators, and when combined with another Senate rule it effectively blocks efforts to change the rules from one Congress to the next. It does that even though changes are expressly authorized by Article I, Section 5.

A moment's reflection will explain why the Senate cannot adopt a rule that violates other provisions of the Constitution. Suppose the Senate adopted a rule requiring 75 votes, 90 votes or even unanimity to pass a bill, defying the provisions in Art. 1 Section 7 that require only a simple majority vote to send legislation to the President. No one would say such a rule would be constitutional.

Other commentators claim that the Constitution's deference to the separation of powers puts any Senate rule out of the court's reach. They ignore the many cases in which the Constitution has granted a particular power to one or both houses of Congress and the Supreme Court has declared a particular exercise of the power unconstitutional.

The question of whether there are any limiting principles on the Senate's right to adopt a self-entrenched rule is a question of law. And, according to Marbury v. Madison, decided in 1803, it is "emphatically the province and duty of [the courts] to say what the law is."

Article I, Section 5 allows each House to judge the qualifications of its members, but it did not prevent the Supreme Court from overruling a 307-166 vote in the House and ordering that Rep. Adam Clayton Powell be seated as a member. The Court said it did not matter that a majority of his colleagues opposed seating Powell because they felt that his conduct brought disgrace on the House.

Sen. Tom Harkin, Chairman of the Senate HELP Committee, is a leader in restoring accountability to the Senate. Just last week, he told a national radio audience that the filibuster is "inherently unconstitutional." As opponents of filibuster reform have made clear, they disagree with Sen. Harkin. Ultimately however, it is the courts' responsibility to "say what the law is."