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.