ElectricLawyer

Article I, Section 5, Clause 1 of the United States Constitution provides that "... a Majority of each [House] shall constitute a Quorum to do Business ...." Clause 2 provides that "Each House may determine the Rules of its Proceedings ...."

The supermajority rule is a rule of the Senate. Another rule provides that the rules may only be changed by an even greater supermajority of 67. As things stand now, it is highly unlikely that the Senate could come up with 67 votes to change the filibuster rule.

But are the supermajority rules constitutional? A reading of the plain words of Clause 1 would suggest they are not. It does not seem the Founding Fathers intended a supermajority be required to pass laws. If they had, they would have said so.

In addition, the Supreme Court (yes, that Supreme Court many are reviling right now) has ruled on a similar point. Against a challenge to the validity of a law passed by 139 House members, of 212 present, United States v. Ballin (1892) 144 U.S. 1 held that "All that the constitution requires is the presence of a majority, and when that majority are present the power of the house arises." (Ballin, supra, at pp. 5-6.) A majority of the members present constituted a quorum, and a majority of that quorum could pass a law. (Ballin, supra at p. 6.) The Court also noted that even though the Constitution gave each house the power to make its own rules, it "may not by its rules ignore constitutional restraints ..." but within that limitation each house had an absolute and continuing power to make its own rules. (Ballin, supra, at p. 5.)

It seems a fair reading of Ballin and Clause 1 to say that a rule requiring a supermajority to permit a House to act is unconstitutional, and that such a rule may be changed at any time by a simple majority.

It is important to remember that filibuster is not some practice enshrined in the Constitution. It's been around in the Senate since 1806, so it is old. Until recently, it provided a means for Senators in the minority party to slow down the passage of a bill until it had been fully argued. However, since the 1960's it has grown to the point that it now threatens to completely stop the work of the Senate. Scott Brown announced (indeed, ran on the promise) that he would filibuster health care reform, cap-and-trade and the bank tax. Just for starters.

Filibuster has been used by both sides, most infamously by southern Democrats trying to stop the passage of the Civil Rights Act of 1964. So both parties have an interest in keeping it around, since majorities change hands in the Senate regularly.

However, if a supermajority requirement is unconstitutional, that it may be useful is not an excuse for its existence. And a procedure such as filibuster, when it becomes a means of bringing the democratic process to a halt, is no longer even useful.

Senator Tom Harkin (D-Iowa) is planning to introduce a bill to eliminate filibuster. He's been trying to do this for years, but now a lot more people are seeing the handwriting on the wall. The conservative blog RedState is quite upset about it.

I'll be keeping an eye on the bill and the discussions, and may report back soon.