Constitution Check: Will the Supreme Court reinforce majority rule in Congress?

Lyle Denniston, the National Constitution Center’s adviser on constitutional literacy, looks at a challenge that will attempt to persuade the Supreme Court to finally rule on the constitutionality of Senate filibusters.



“Whether the Constitution does or does not require majority rule [in Congress], and, if so, whether the cloture rule as practiced by the Senate does or does not violate this requirement, are questions that require, and furthermore deserve, substantive answers from the judiciary. The D.C. Circuit Court’s opinion, which threatens to deny the country such judicial answers for all time, cannot stand.”

– Excerpt from a legal brief filed this month in the Supreme Court by a group of constitutional law professors in a new case seeking to test the constitutionality of the current filibuster rule (Rule XXII) in the U.S. Senate, which basically requires the votes of 60 senators to pass any legislation that stirs any significant controversy. The professors joining in the brief said they disagreed about whether that rule was invalid, but did agree that the Supreme Court should settle the issue. The new case is Common Cause v. Biden.


No one can read the debates among those who wrote the Constitution in the Philadelphia Convention in 1787, or the debates that followed in the state ratifying conventions, without sensing that anyone interested in slowing down legislation in the new Congress would try very hard to impose requirements for extra-large majorities, not simple 50-percent-plus-1 majorities, to pass some kinds of bills. Most of those attempts were rejected, but sometimes not without very heated debate.

For example, when the Committee on Detail at Philadelphia came back with a proposal that there had to be a two-thirds vote in the Senate to pass any law regulating U.S. commercial dealings with foreign nations (so-called “navigation acts”), the idea provoked sharp divisions between the South (strongly resistant to any such law) and the North (generally favoring such measures). The idea was voted down by the delegates.

In the ratifying conventions, any number of skeptics about the Constitution put forth various ideas for similar super-majorities. A couple of energetically pressed examples would have required a two-thirds majority for a declaration of war, or to adopt a federal tax. Those, too, failed.

The original Constitution that emerged lists only six specific requirements for actions in Congress by something more than a simple majority: Senate vote on conviction in an impeachment trial, vote in either house to expel a member, a vote to override a presidential veto of a bill, a vote to override a presidential veto of a resolution passed by both houses, a vote in both houses to propose a constitutional amendment, and a vote in the Senate to ratify a treaty.

Later amendments added two more: the 14th Amendment, requiring a two-thirds vote in both houses to allow an individual who had supported the Confederacy in the Civil War to become eligible to serve in Congress or hold a federal office, and the 25th Amendment, imposing a two-thirds vote requirement in both houses to bar a disabled president from resuming office.

From time to time, critics of Senate filibusters – the prolonged debate by one or more members to keep that chamber from reaching a vote on a controversial measure – have been trying to persuade the courts that the power can be abused and, when it is, flatly contradicts the Constitution’s embrace of action by a majority in each house (an idea that gets mentioned specifically in Article I).

In nearly all of those cases, the courts have turned aside the constitutional challenge for procedural reasons, finding that no challenger was in a position, legally, to raise the issue in court. The Supreme Court has not disturbed that kind of result.

The most recent court ruling on such a challenge, however, has led a new group of challengers to try again, and they are now attempting to persuade the Supreme Court to finally rule on the complaint. They believe that the way they lost the case in the federal appeals court in Washington, D.C., actually makes their case fundamentally different, and thus a better test of Senate filibusters than any previous challenge.

Instead of turning aside the challenge of four members of the House, three young individuals, and the advocacy group Common Cause on the premise that each lacked a sufficient interest to justify their challenge, the D.C. Circuit Court issued a more sweeping ruling.

If bills that the House had passed — bills that the four lawmakers had voted for, and that would have benefitted the three individuals and Common Cause – never came to a vote in the Senate, the blame lay with those senators who refused to vote to cut off debate and allow a final vote on passage, the Circuit Court ruled.

In other words, any frustration of the challengers’ interests, the Circuit Court said, came from those senators, or from the Senate itself. But, of course, the individual senators and the Senate itself cannot be sued for anything they do in the legislative realm, because that is flatly forbidden by the Constitution’s Speech or Debate Clause. Article I, Section 6, says that members of Congress “shall not be questioned in any other place” for any speech or debate, and that is understood to mean any legislative activity.

That ruling, the new appeal argued in Supreme Court filings, goes so far that no one could ever sue to challenge a legislative rule and that, as a result, Congress could even adopt a rule that flatly discriminated in the legislative process on the basis of race, and yet there would be no one who could go to court with a challenge.

The Senate, of course, is once again resisting the challenge to Rule XXII. It told the Supreme Court in reply to the new appeal that this challenge should fail as all of the others have. And, of course, it cited the Constitution’s provision, in Article I, that each house “may determine the rules of its proceedings.”

Whatever the specifics of this new challenge, it poses the same kind of delicate issue for the Justices: do they want to put themselves in the position of second-guessing how the Senate operates? Even if the issue is a fundamental one, as a group of constitutional law professors have argued in a brief supporting the challengers’ appeal, is the better part of judicial wisdom to stay out of a fight that is very political in nature? The answers should come soon.

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