America's Unwritten Constitution: The Precedents and Principles We Live By (60 page)

Nor does anything in America’s
symbolic
Constitution argue for an entrenched Senate filibuster rule. Many ordinary citizens today disdain Senate Rule 22, and this disdain has a long history. The most memorable filibusters in the American experience occurred in the 1950s and early 1960s, when various southern senators tried to thwart much-needed civil-rights legislation—legislation that eventually passed in the mid-1960s and became the pride of the nation, reaffirming the equality of all races (and also of both sexes). In short, key elements of America’s
symbolic
Constitution (and also America’s
feminist
Constitution) came about despite the filibuster, not because of it.

Nor, finally, does the history of actual
institutional
practice—from the
Georgian
period to the present—provide solid support for an entrenched filibuster rule. Properly construed and contextualized, the history of Senate practice in fact supports modern-day filibuster reformers.
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Nothing like Rule 22’s catch-22 was in place in the age of George Washington or in the Jeffersonian era that followed. Throughout the 1790s and early 1800s, the Senate practiced and preached simple majority rule. Under the procedures that governed the Senate during its earliest years, a senator could move “the previous question” and thereby end debate if a majority of senators agreed; and senators could also call an unruly orator to order at
any time and thereby oblige him to “sit down,” subject to a ruling by the chair and, if necessary, an appeal to the Senate as whole.
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Although some scholars have quibbled about the precise operation of these initial rules, the history of the Senate prior to the 1830s offers no notable examples of organized and obstructionist filibustering—and absolutely nothing like a pattern of systematic, self-perpetuating, entrenched frustration of Senate majority rule. Thomas Jefferson, the Senate’s presiding officer from 1797 to 1801, was thus describing actual senatorial norms and usages when he penned the following passages of his 1801
Manual of Parliamentary Practice for the Use of the Senate of the United States:
“No one is to speak impertinently or beside the question, superfluously or tediously.… The voice of the majority decides. For the
lex majoris partis
is the law of all councils, elections, &c. where not otherwise expressly provided.”
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For much of the mid-nineteenth century, even as Senate minorities began to develop and deploy dilatory tactics, these tactics typically occurred with the indulgence of the Senate majority. Long-winded speechifying occasionally delayed the Senate’s business, but orations usually did not prevent majorities from ending debate at some point and taking a vote. The Senate in those days was smaller than it is today and had less business to transact. The upper chamber often opted to indulge individual senators as a matter of courtesy. In turn, the indulged senators did not routinely try to press their privileges so as to prevent Senate majorities from governing. For example, in 1850, politicians of all stripes from all regions understood that California’s admission—giving free states a narrow but decisive majority over slave states in the Senate—mattered hugely,
precisely because the Senate’s operative principle in the mid-nineteenth century was in fact simple majority rule
. According to one expert treatise, prior to the 1880s virtually every obstructed measure eventually prevailed against the opposition’s stalling tactics.
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In the late twentieth and early twenty-first centuries, routine filibustering practices have skyrocketed. Yet senators in the modern era have failed to achieve a general consensus via a compelling line of clean, consistent Senate rulings on the key constitutional question. Properly framed, this question is not whether the Senate may choose by inaction and inertia to keep the filibuster, nor whether the Senate may choose to keep the
filibuster by readopting it via a fresh majority vote. Rather, the question is whether the current Senate is simply stuck with the old filibuster rule, even if a current majority emphatically wants to change the rule and explicitly votes to do so. This issue has only intermittently arisen in a clean parliamentary fashion. Over the years, various senators may have quietly favored the old filibuster rule but have not wanted to publicly take the blame for this position, preferring instead to shroud the issue in layer upon layer of procedural complexity.

In 1975, a majority of the Senate in fact upheld a constitutional ruling of the vice president, sitting in the chair, that a mere majority could rightfully end debate on filibuster reform and overturn the old filibuster rule. Shortly thereafter, however, the Senate voted to reconsider its earlier action, leaving us today with a Rorschach-blot precedent whose meaning is largely in the eye of the beholder. In the early twenty-first century, Republican senators, frustrated by the success of the Democratic minority in blocking votes on various judicial nominations, loudly threatened to revise the old filibuster rule by a simple majority vote. This threatened revision, popularly nicknamed “the nuclear option,” never came to a conclusive floor vote. Instead, Democrats moderated their obstructionism and Republicans sheathed their sword.

Precursors of this “nuclear option”—also known as “the constitutional option”—were forcefully advocated by prominent senators throughout the twentieth century, and at various moments over the past sixty years these precursors have in fact won the considered support of vice presidents and Senate majority leaders of both parties. Many of the most important filibuster reforms of the twentieth century came about when reformers first threatened the “constitutional option” and then compromised by effectuating their desired reforms in an endgame process that formally obeyed the Senate’s catch-22 rule structure.
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If a Senate majority truly were powerless to set things right, then Senate practice would be wildly out of step with the practice of its sibling body, the House of Representatives. In the House, majority-rule rules today and has always ruled. Although this fact alone does not prove that majority rule is required by Article I, section 5, it surely confirms that majority rule is consistent with this section. The long-standing practice of the House
should also remind us that, in sharp contrast to the 1860s, when the House got the Senate and the president to bless its use of old House clerks to birth new Houses, the modern filibuster rule has not received any encouragement from the lower house or the executive branch.
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THE POLITICALLY CONVENIENT ASSERTION
that today’s Senate majority is simply a powerless captive of ghosts of Senates past should ring particularly hollow to British ears—and this hollowness deserves special attention in any analysis of how America’s Constitution might look to a proper British constitutionalist. Although Britain has never had an American-style written Constitution, the British have developed a deep understanding of the proper relationship among Parliaments over time. It is a bedrock principle of British constitutionalism that one Parliament cannot bind a later Parliament. Otherwise, the inalienable right of parliamentary self-government would be lost. Indeed, what makes a right
inalienable
is precisely the fact that it is incapable of being waived, even by an actual practice of apparent waiver.

Just as Americans at the Founding surely understood that no person could be a judge in his own case, thanks in part to Blackstone’s clear formulation of the basic principle, so, too, the Founders were intimately familiar with and embraced what Blackstone had to say about the relationship between one legislature and its successor: “Acts of parliament derogatory from the power of subsequent parliaments bind not.” Why not? Because, Blackstone explained, prior Parliaments are not legally superior to subsequent Parliaments. By what voting rule would each Parliament proceed? Here, Blackstone was clear: “In each house the act of the majority binds the whole.”
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The same logic applies on this side of the Atlantic. Each house can make rules for itself. But neither house can entrench rules in a way that prevents a later house from governing itself. Only the Constitution can create entrenched rules of this sort. And on this issue, the rule that the Constitution has entrenched for each house is majority rule.
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Because this protocol is established by the Constitution itself, the protocol cannot be changed by either house or by statute. Just as Congress may not properly enact an ordinary statute that changes the constitutional rules
governing how future ordinary statutes are to be enacted, so, too, neither house may properly enact a house rule that changes the constitutional rules governing how future house rules are to be enacted.

HERE IS ONE FINAL WAY
of pulling together the basic argument. It is obvious that some specific voting rule must be used to operationalize the Article I, section 5, power and duty of each House to determine its own rules of proceeding. If majority rule is not the implicit rule, what is? Without some jumpstarting rule, the first House and the first Senate in 1789 would have faced an insoluble infinite regress problem. (By what initial voting rule would each house decide what voting rule to use in determining its rules of proceedings? By what pre-initial voting rule would that initial voting rule be decided? By what pre-pre-initial voting rule would the pre-initial voting rule be decided? And so on, without end.) But no such infinite regress in fact occurred in the first Congress because majority rule did in fact go without saying in each house in 1789, just as it had gone without saying in each ratifying convention in 1787–1788. This first set of Article I, section 5, votes thus established the first key point of actual practice.

Just as the first House and the first Senate each used majority rule to decide its procedures, every subsequent House and Senate may and must do the same, for nothing in the Constitution made the Congress of 1789 king over later Congresses. All Congresses are equal in this respect. In fact—and this is a second key point about actual practice—neither house has ever formally required a supermajority for amendment of its rules. Not even Senate Rule 22 has the audacity to openly assert that it cannot be repealed by simple majority vote. Rather, Rule 22 says only that
debate
on its own repeal cannot be ended by simple majority vote.

The question thus becomes, is this supermajoritarian aspect of Rule 22 a genuine rule of debate or a de facto rule of decision? If Rule 22 simply means that the rule itself should not be repealed without a fair opportunity to debate the repeal, then Rule 22 is fully valid. But insofar as Rule 22 in fact allows repeal opponents to stall interminably so as to prevent a majoritarian repeal vote from ever being held, then Rule 22 is to that precise extent operating as an unconstitutionally entrenching supermajority rule of decision rather than a proper rule of debate. It is the right and duty of
each senator to adjudicate for herself whether Rule 22 has in fact come to operate as an improper rule of decision rather than a proper rule of debate. And in adjudicating that question, the Senate, operating as a constitutional court of sorts, acts by majority rule, just as the Supreme Court itself does when adjudicating constitutional (and other) questions.

AMERICA DELIGHTS IN ITS INVENTIONS.
From bifocals at the Founding to light bulbs, flying machines, and iPhones in the modern era, we constantly quest for the holy grail of the next new thing. America’s lawyers over the centuries have proved especially inventive in crafting new institutions and institutional devices to respond to perceived problems. As postbellum America’s economy, society, and laws became increasingly complex, requiring more scientific expertise and bureaucratic rationality within government to regulate both private actors and the government itself, new “independent agencies” arose. And as legislators felt obliged to give more policymaking authority to administrators, Congress sought to reserve a checking role for itself via a newfangled contraption called the “legislative veto.” In the wake of Watergate, a new breed of judicially appointed “independent counsels” emerged to keep all the president’s men in line.

This much is well understood by lawyers and scholars of all stripes. What is not well understood is why certain modern institutional innovations have endured while others have imploded. A glance at four of the past century’s most notable institutional innovations will suggest a startlingly simple answer: Innovations that utterly disregarded the written Constitution’s blueprint ultimately proved structurally unsound and collapsed of their own weight. Innovative institutions carefully erected inside the flexible (but not infinitely flexible) lines of the blueprint remain standing.

CONSIDER FIRST THE
legislative veto
, a device that modern Congresses have insinuated, in some form or other, into hundreds of statutes. A legislative-veto clause purports to vest one or both houses of Congress, or some subset thereof (say, a House or Senate committee) with the legal authority to block—to “veto,” in effect—certain attempted executive-branch
implementations of the statute. Imagine a statute that says that all persons who meet conditions A, B, and C will be eligible for a certain benefit (say, a sizable rebate on their income taxes). A legislative-veto clause in this statute might say that whenever the executive branch decides that a person meets the statutory conditions and thus deserves the statutory benefit, either house (or some committee) may unilaterally nullify this decision.

This familiar device, in all its variants, is constitutionally preposterous—a flamboyant negation of the Constitution’s basic structure. As advertised by its honest and oxymoronic label, the device improperly aims to vest quintessential executive (and/or judicial) powers in legislators. The written Constitution’s rules and principles are clear. Congress’s job is to enact general and prospective laws—to decide, in our example, whether to require A, B, and C, or D, E, and F instead. Once the law is on the books, it is for other branches, namely, the executive and the judiciary, to implement and interpret it. If Congress wishes to change the law, Congress must enact a new law, with both houses agreeing and the president assenting (or being duly overridden). Only in a few specific situations defined by text and tradition may Congress play executive or judge, or may a single house act unilaterally on outsiders—for example, in impeachments, in judging house elections, in conducting inquests, in disciplining its members, in imposing contempt punishments, and in controlling physical space in the Capitol. These are the proverbial exceptions that prove the rule that in other situations, Congress must stick to lawmaking and leave law execution and law adjudication to others.
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