Is the Filibuster Unconstitutional?

Update: I neglected to mention the use of the filibuster in blocking presidential appointments for various offices, which was what started me thinking about this in the first place. My bad.

Well, no. But hear me out.

First, a little background:

The filibuster itself was sort of an accidental creation, only allowable after Aaron Burr (yes, that Aaron Burr) thought a Senate rule which allowed for a de facto end to debate was superfluous, and argued successfully to have it stricken from record in 1806. Well, some 35 years later Henry Clay tried to make it so the majority party could again force an end to debate, but some Missouri Senator said that was unfair, and the filibuster was officially born. Later, Strom Thurmond famously read out of a phone book for 24 consecutive hours in an attempt to derail civil rights legislation.

So the filibuster is something of an arbitrary creation, but one rooted in ensuring minority party rights within the Senate, something I think we can all respect in principle.

But the effects thereof are far more drastic than its early proponents intended. The Senate admitted as much in the early 1900s when it made it possible to invoke cloture, provided 3/5 of Senators want to put an end to floor debate.

About a week ago, The Economist posted an item on its blog about filibusters, lamenting the political gridlock that the filibuster creates.

Matthew Yglesias [ed: a policy wonk for the left-leaning Center for American Progress] is outraged: “I think it’s pretty obvious that the trends over the past 5-10 years are pointing in the direction of constant filibustering leading to the total paralysis of the American government.”

Actually, it’s worse than that, and in the long run it’s really bad for Republicans. Sixty seats are hard to come by; for a party to soar from 45 to 60 seats in two elections, as the Democrats did in 2006-2008, is almost unheard of. And no Republican thinks his party will achieve that soon.

The trends Yglesias is referring to are summed up nicely by everyone’s favorite e-cyclopedia here. Long story short, use of the filibuster (which is best measured by how many times the majority party attempted to invoke cloture) has skyrocketed over the past century.

Here’s a nifty chart, courtesy of McClatchy newspapers:

The final tally for cloture motions in 2007-08 ended up being 112, not quite up to McClatchy’s projections, but still a record. Of those 112, a little over half were successful in ending the filibuster.

What are the implications?

Well, the 3/5 required for clotures is only a few senators shy of the mark needed to override the Constitutional presidential veto. While the point of the Constitutional separation of powers was, literally to cripple government, I think the filibuster has the potential to push that too far. And if current trends continue, it will.

For starters it puts an awful lot of power into the hands of the minority party in the Senate. Disproportionately so, relative to the House and, frankly, the president. It’s only natural that both chambers have created their own rules, by tradition but also as a practicality (the House, for instance, needs more structured rules on bill formulation and debate to constrain its sheer size). But it’s awfully difficult for those that are affected by said rules to change them.

Example: Say the Democrats don’t get that 60th vote from Al Franken, or Arlen Specter doesn’t end up toeing the party line on cloture voting. Logic dictates they would want to get rid of the filibuster to make it easier to pass legislation. But, as the Economist reminds us:

…in the long run it’s really bad for Republicans. Sixty seats are hard to come by; for a party to soar from 45 to 60 seats in two elections, as the Democrats did in 2006-2008, is almost unheard of. And no Republican thinks his party will achieve that soon.

The GOP has not won 60 seats since the Senate became a 100-member body, after Hawaii and Alaska became states. The last time it won 60 percent of the seats in the upper house was 1920. It has literally not held 60 seats in a century.

So maybe Democrats wouldn’t be so inclined to get rid of the filibuster. The GOP isn’t anywhere close to a filibuster-proof majority. Republicans? Show them this and they’d probably cringe, yet the ones in power now know that the filibuster represents their best chance to affect policy in the interim, regardless how the unfettered use of filibustering might affect them in the future.

The filibuster’s probably not going anywhere any time soon. And it’s certainly “acceptable,” in that it’s not explicitly prohibited by the Constitution, and both chambers have long been allowed to determine their own rules. And as long as its use remained centered on truly contentious legislation, it wouldn’t be that objectionable a power.

But even in its most conservative application, it still makes legislating a hell of a lot more difficult than the already high bar (a simple majority in both chambers + presidential approval) set by Adams, et al.