Wednesday, May 16, 2012

Is the Supermajority Requirement for Cloture Constitutional?

Senate Majority Leader Harry Reid wants to abolish the rule that requires 60 votes to achieve the passage of legislation. Manu Raju, Politico, Harry Reid: Reform the FilibusterSome commentators are arguing that the supermajority requirement to bring cloture to a filibuster is inconsistent with the text and the intent of the Constitution.

Yesterday Ezra Klein of the Washington Post posted Is the filibuster unconstitutional? Klein concludes that the rule requiring 60 votes to choke off debate is a violation of the Constitution because the framers clearly intended for a simple majority of each House to be able to enact legislation. Klein draws his arguments and conclusions from a 2011 article by Emmet J. Bondurat published in the Harvard Journal on Legislation entitled The Senate Filibuster: The Politics of Obstruction. Klein and Bondurat rely principally upon the Federalist Papers in which both James Madison and Alexander Hamilton not only disapproved but denounced any requirement for a supermajority of Congress to enact legislation.

In 2009 I addressed this issue in Health Care Financing Reform (71): Are Filibusters Constitutional? I cited two articles by Vikrom David Amar (here and here) criticizing the supermajority requirements.

The text and history of the drafting and ratification of the Constitution clearly indicate that the framers considered and rejected the idea that a minority of the people's representatives could block the passage of legislation. But there is an even more compelling reason why the supermajority rules are unconstitutional, and that is the basic principle that "all men are created equal." The idea that the representatives of 10% of the people of this country can prevent the adoption of laws is contrary to the principle that every citizen is equal - that every citizen has an equal voice in how we shall be ruled. When legislation invades constitutionally protected rights then the courts have the power and the duty to strike that legislation down in the protection of minorities. But this does not give the minority of the people the right to rule. It is also true that when laws are enacted that purport to change the constitutional framework that was established for the enactment of legislation, the courts have the power and the duty to declare those laws unconstitutional. The supermajority rule for cloture is unconstitutional and should be eliminated.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.

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