[Prefatory Note: The following is the text of a column appearing in the Arizona Republic on Sunday, June 13. It was authored by Paul Eckstein who practices civil litigation in constitutional and political law, among other areas, at Perkins Coie in Phoenix, and is also an adjunct professor of constitutional law at the Sandra Day O’Connor College of Law at ASU. Interestingly, Russ Douthat, appears to have plagiarized this idea in his NYT Column which was published the same day]
More than 70 years ago, U.S. Supreme Court Justice Robert Jackson famously wrote in a case testing the limits of free speech: “The Constitution is not a suicide pact.”
If that is true about the foundational document of our government, it is all the more true of a mere procedural rule that allows any 41 senators from as few as 21 states to block the U.S. Senate from passing legislation on which there is broad popular support, including such important matters as voting rights, immigration reform, a minimum wage, and the formation of a commission to investigate the causes and implications of the Jan. 6 storming of the U.S. Capitol.
If we are not yet at the point that bills favored by large majorities of the American body politic have no chance of being enacted into law, we are fast approaching it, and if that happens our democracy it will be in real danger.
If 41 senators to block a bill that would prohibit states from enacting laws designed to limit and even prevent citizens from voting, and permitting state officials to cancel legally cast votes and declare the loser the winner, as is being done in various states today,is not a suicide pact that endangers our democracy, then nothing is.
Although the Constitution allows each house of Congress to make its own rules of procedure, it also spells out specifically those situations in which a supermajority vote in the Senate is required — to ratify a treaty, to override a presidential veto, to expel a member of the Senate for disorderly behavior, to pass a constitutional amendment, and to convict a federal public officer who has been impeached by the House. This begs the question of whether the Senate can create by rule a super-majority requirement for other matters.
Constitutional or not, Rule XXII adds another layer of minority rule in an institution that already gives the minority a veto.
Because each state has two votes in the Senate (something that can never be changed by constitutional amendment), 51 senators representing 17.76% of the nation’s population (according to the 2010 Census) can stop any bill, without a filibuster.
With the filibuster, as currently allowed in the Senate, it takes only 41 senators representing 8.43% of the population of the United States to kill a bill.
What should be done?
Repealing Senate Rule XXII is the most effective solution, but that isn’t going to happen as Sens. Kyrsten Sinema, D-Ariz., and Joe Manchin, D-W.Va., contend the filibuster is essential to the sound operation of the Senate.
Really? A procedural rule should stand in the way of critical and important federal protections to all citizens’ right to vote? Not in a rational world.
To say, as Sens. Manchin and Sinema say, that the filibuster is necessary because it is required to preserve cordiality and compromise in the Senate is laughable except that the lack of cordiality and compromise today is hardly a laughable matter.
So if bowing to political reality and recognizing that outright repeal of the filibuster isn’t going to happen, a few things can be done to ameliorate its harsh effects, such as amending Rule XXII by:
(a) selectively repealing the filibuster for bills dealing with voting legislation, just as the filibuster has been selectively repealed for the selection of all federal judges, who have lifetime appointments.
(b) requiring those who want to filibuster to take and hold the floor, as was the case 50 years ago, which to be effective requires senators who possess equal measures of stamina and political will. Today, a senator need only threaten a filibuster, not actually bring the business of the Senate to a halt, which many are loath to do, to effectively kill a bill in many instances.
(c) requiring two-fifths plus one of the senators who are present and voting, not all senators who hold office, to vote against closure for a filibuster to be effective. Under the current rule, a senator votes “no” by absenting herself, as Senator Sinema did on the vote for the commission to investigate the events of Jan. 6. In fact, if the filibuster rule had covered only senators who were present and voting, because 11 senators were not present, the 54 senators who voted for the Jan. 6 commission would have prevailed and the commission would be in place.
(d) requiring two-fifths plus one of the senators present and voting who represent 40% of the population of the United States to prevent cloture.
There is nothing magic in the number required or construction of the current version of Rule XXII. It has been changed several times over the years, most recently by the Republican controlled Senate in 2017 to prevent Democrats from filibustering the seating of Neil Gorsuch on the Supreme Court.
But there is something magic about allowing a majority of the people and their representatives to make laws. And that magic is about to be lost.
[EOP]
