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12/16/2012

Law Professors' Letter on Changing the Filibuster Rules
Michael Ramsey

Ten prominent law professors, including Stanford's Michael McConnell, have sent this letter to the members of the Senate regarding possible changes in the Senate's filibuster rules.  In brief, the conclusion is that at the start of the session in 2013 a majority of the Senate can change the filibuster rules.  That's so, even though Senate rules appear to in effect require a supermajority, because the rules of a prior Senate cannot bind a majority of a current Senate.  As the letter explains,

Under Rule XXII, as amended in 1959, when a rules change is being considered, 67 senators must agree to halt debate. And, under Senate Rule V, this supermajority barrier to voting on a rules change, along with all other rules, shall “continue from one Congress to the next Congress unless they are changed as provided in these rules.”

That provision, the letter asserts, is contrary to an

unquestioned constitutional power of each incoming Senate to fix its own rules unencumbered by the decisions of past Senates. The standing two-thirds requirement for altering the Senate’s rules is a sensible effort at preventing changes to the rules in the midst of a game. It cannot, however, prevent the Senate, at the beginning of a new game, from adopting rules deemed necessary to permit the just, efficient and orderly operation of the 113th Senate.  ...  We agree with the overwhelming consensus of the academic community that no pre-existing internal procedural rule can limit the constitutional authority of each new Senate to determine by majority vote its own rules of procedure.

It's interesting to note the letter's significant reliance on originalist/textualist analysis to establish a constitutional rule:

The Framers believed deeply in a democracy steeped in majority rule. The overwhelming consensus of the Revolutionary period called for legislative and executive elections to be determined by majority vote. The Supreme Court simply assumed that its decisions would be by majority vote, even when the Court invalidated legislation as unconstitutional. Similarly, the Founders intended that each house of the national legislature would proceed by majority rule, including the enactment of rules pertaining to the procedures of each house. Both the history and text of the Constitution confirm this design. Notably, Alexander Hamilton urged support for ratifying the Constitution because it would eliminate the numerous supermajority requirements that had dogged the federal government under the Articles of Confederation. Such requirements, he wrote, “destroy the energy of government, and…substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt [faction for] the regular deliberations and decisions of a respectable majority.”

Reflecting Hamilton’s concerns, the Framers included only five discrete and explicit exceptions to majority rule in the Senate: overriding vetoes, expelling members, convicting on impeachments, proposing constitutional amendments, and ratifying treaties. The weightiness of the issues for which the Constitution specifies a supermajority requirement underscores the degree to which the Framers intended majority rule to govern the normal order of business. Notably, among the sections of the Constitution that impose no supermajority requirements, is Article 1, Section 5, Clause 2 authorizing each chamber of Congress to “determine the Rules of its Proceedings.”

I agree (but no one asked me to sign).  I would add that it was a fundamental rule of English law in the eighteenth century that the legislation of prior parliaments could not bind future parliaments (a proposition that presumably applied to internal rules as well).

And here's John McGinnis and Mike Rappaport from 2005 on amending the filibuster (when the Republicans sought to change the rules and Democrats claimed that required a supermajority vote): Confirming Judges: The Constitutional Option.

The label "academic consensus" is often used loosely to mean not much more than conventional wisdom among liberal law professors, but in this case the academic consensus does seem quite broad.  I'm not sure that was emphasized as strongly by politically liberal law professors in 2005, however.

(Via Gerard Magliocca at Balkinization, where there is some back-and-forth in the comments).