Senator Kyrsten SinemaKyrsten SinemaPhotos of the week: tornado aftermath, medal of honor and booming superhero, Senate expert to brief Democrats on potential rule changes, Schumer says Build Back Better will be delayed MORE (D-Ariz.) Signaled – ambiguously – that she was once again considering whether to support efforts to change the filibuster to allow Sen. Joe manchinJoe Manchin Photos of the week: After the tornado, medal of honor and booming superheroes Charlamagne Tha God, Harris enter into a heated exchange after a question about who the “real president” is Krysten Sinema is less of a conundrum policy that it is not a strategic decision maker MORE‘s (DW.Va.) Law on the freedom to vote to be adopted in the Senate. In a statement to Politico from its communications director, John LaBombard wrote:
“[Sinema] continues to support the Senate’s 60-vote threshold, to protect the country from repeated sweeping reversals of federal policy that would cement uncertainty, deepen divisions and further erode American confidence in our government. … Senator Sinema asked those who want to weaken or eliminate the filibuster to pass a voting rights law that she supports whether it would be good for our country to do so…. As Senator Sinema said six months ago, it is time for the Senate to publicly debate its rules, including filibuster, so that senators and all Americans can fully hear and consider these ideas, concerns. and consequences. “
What is striking about this debate is the presumption that modern obstruction is constitutional. The Supreme Court will not rule on the matter, but even the most basic understanding of our constitutional history shows that the obstruction – as it has evolved – is clearly contrary to the design of the Constitution.
This qualification – “as it has evolved” – is essential. We forget that for most of our history filibuster has only slowed down consideration of a bill in the Senate. This brake was caused by the desire of a senator to stand on the floor of the Senate and speak. Obviously, the Constitution provides that members of Congress have the right to debate freely. So it was a clever hack of the Constitution by slavery enthusiast John C. Calhoun (DS.C.), 50 years after its elaboration, to exploit this right to effectively slow down the passage of the legislation. If guaranteeing the right of each senator to speak for as long as he wishes would mean, in the opinion of the body, that the examination of a bill would take too long – given the other work that the Senate had to fulfill – the consequence of this judgment would be that a bill would no longer be considered. Until 1965, the only bills actually enacted in this way were civil rights bills. including, to the chagrin of the Senate, bills that would have ended the lynching of African Americans in the southern United States.
But modern obstruction has nothing to do with guaranteeing anyone’s right to speak. Modern obstructionism simply changes the rules as to whether a bill can be considered. With the exception of certain appointments or budget reconciliations, modern filibuster effectively gives any senator the right to change the requirement of a bill passed by the United States Senate. Under modern filibustering, any senator has the power to demand that the bill receive 60 votes before it even goes to the Senate. This makes the Senate a qualified majority deliberative body, rather than a simple majority deliberative body.
Yet this requirement is clearly incompatible with the design of the Framers. So why does anyone think it is constitutional for the Senate to adopt such a rule? Again, I don’t mean to say that the Supreme Court will strike them down. There are many reasons why the Court does not control the work of the Senate. I mean more simply, why could a senator believe, in good faith, that changing the majority requirement in the Senate is within his constitutional authority?
Our constitution makers knew how to craft a qualified majority constitution. Indeed, the first generation of our Framers did just that. the Articles of Confederation created a Congress by qualified majority. Most ordinary laws required a 2 / 3ds vote to pass. The reasons why they did so are exactly the reasons Sinema is promoting today: They too believed that a qualified majority requirement would promote collaboration and cooperation. They, too, believed that this would avoid wild shifts in critical politics.
But what they and America quickly discovered was that they were completely wrong and the articles were a complete failure. No republic can govern itself if ordinary legislation requires a qualified majority. And when our drafters debated our Constitution, they deliberately rejected the idea of a qualified majority for ordinary legislation. There are undoubtedly places in the Constitution where a qualified majority is required – 6 to be precise. But beyond these exceptions, the rule of our Constitution is majority.
So the question we should ask senators like Sinema, who are trying to recreate our first constitution, which completely failed, is simply this: By what right? Who are you to amend our Constitution? Who are you to betray his fundamental attachment to majoritarianism? The Constitution enshrines equality, including equality based on sex. Does a senator have the right to promote a rule that prohibits women from entering the Senate, just because they thought it was a good idea?
If senators who support modern obstructionism want to change the Constitution to make the Senate a qualified majority chamber, let them come up with this amendment, get it through each chamber with a 2/3 vote, and then get ratification in the 3/4 of the states. . But until that happens, there is no justification for hiding behind a clearly unconstitutional rule. Dean Chemerinsky and Bert Neuborne are right that Vice President Harris could effectively declare the rule unconstitutional – at least as long as she could get the consent of 50 Senate members. But even without that happening, we should all ask those founding senators, who made you the architects of our Constitution? And by what right can you amend our Constitution, without the word of the people?
Lawrence Lessig is Roy L. Furman Professor of Law and Leadership at Harvard Law School. He is the founder of Equal Citizens and the author of “They Don’t Represent Us”.