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PENNumbra Debate Series Presents "Is the Filibuster Constitutional?" with Josh Chafetz and Michael J. Gerhardt

April 08, 2010

With the help of the President, Democrats in Congress were able to pass historic health care reform legislation in spite of—and thanks to—the significant structural obstacles presented by the Senate’s arcane parliamentary rules. After the passage of the bill, the current political climate appears to require sixty votes for the passage of any major legislation, which many argue is unsustainable. The potential for more vacancies on the Supreme Court has only added to the sense that a confrontation is inevitable.

In Is The Filibuster Constitutional?, Professors Josh Chafetz and Michael J. Gerhardt debate the constitutionality of the Senate’s cloture rules by looking to the history of those rules in the United States and elsewhere. Opening the debate, Professor Chafetz argues that the cloture rules represent an unconstitutional principle of entrenchment and highlights the absurdity by analogy to a hypothetical law requiring a supermajority to unseat an incumbent senator, which would surely not be tolerated. He finds the filibuster to be “strikingly similar” to such a rule and therefore unconstitutional. Chafetz concludes that historical practice fails to justify dilatory tactics and that any constitutionally conscientious senator has a duty to reject the filibuster as it currently operates.

Professor Gerhardt shares Chafetz’s frustration with the glacial pace of most congressional business, but attributes that behavior to the lack of a majority committed to curtailing abuses of Senate procedure. Gerhardt raises the two traditional arguments against the filibuster—namely, the lack of explicit constitutional authorization and the hand-tying that results from its supermajoritarian requirements—and argues that the weaknesses of these arguments underscore the filibuster’s inherent constitutionality. Gerhardt points out that a majority of Senate seats is never subject to election at any given time, and that the Constitution does not forbid, but instead expressly permits, the Senate to draft internal procedures. Failing to find an anti-entrenchment principle implied in the constitutional scheme, Gerhardt groups the filibuster with other Senate traditions—such as holds and bitter partisanship—and finds that the solution to unsatisfactory behavior in the legislature is, and has always been, accountability at the ballot box.
Josh Chafetz
Michael J. Gerhardt