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Legal scholars as in [1] can make the point better than me: > When considering the filibuster as a supermajority requirement for regular legislation, it is cle

Legal scholars as in [1] can make the point better than me: > When considering the filibuster as a supermajority requirement for regular legislation, it is clearly unconstitutional. As a textual matter, the Constitution appoints the Vice President as the tie-breaking vote in the Senate, providing that they “shall have no Vote unless [the Senators] be equally divided.” This provision implies that the Senate must pass regular legislation by a majority vote. In general, the Senate's ability to set its own rules surely cannot be unrestricted. For example, when the Democrats had 60 votes in the Senate would it have been constitutional for them to create a new rule that all tax decreases require unanimous consent of the Senate? Or for Republicans in the same situation to create a rule that all tax increases require unanimous consent? Both of these changes would seem to be within the rule-making authority of the Senate. However both rules would be profoundly undemocratic because they would generally prevent a majority (or supermajority) of US voters from changing US tax law in the future. [1] https://legaljournal.princeton.edu/tyranny-of-the-minority-the-unconstitutionality-of-the-filibuster/ https://legaljournal.princeton.edu/tyranny-of-the-minority-t...

herczegzsolt 3y ago
> to create a rule that all (...) require unanimous consent? What you describe is pretty much what has happened and still is happening in Hungary. The conclusion here is that even if the majority agrees that these rules are against the spirit of the democracy, there's nothing practical to do against them. So yeah, checks and balances are important to have in practice, not just in spirit. When you're relying on self-imposed limitations, radicals will sooner or later take over and do whatever necessary to stay in power.
baryphonic 3y ago
> In general, the Senate's ability to set its own rules surely cannot be unrestricted. For example, when the Democrats had 60 votes in the Senate would it have been constitutional for them to create a new rule that all tax decreases require unanimous consent of the Senate? Or for Republicans in the same situation to create a rule that all tax increases require unanimous consent? Both of these changes would seem to be within the rule-making authority of the Senate. However both rules would be profoundly undemocratic because they would generally prevent a majority (or supermajority) of US voters from changing US tax law in the future. I think we should clarify that there is no "filibuster rule" in the Senate. The rule is that debate by default is unlimited; in order to close debate on any non-rule change, sixty senators must agree to invoke "cloture," after which debate continues for up to thirty hours under various restrictions. Then the vote on the underlying measure (e.g. a bill, a resolution, advice & consent on an executive matter) takes place with the majority vote rule. (Debate about rule changes can only be ended by 2/3 of the Senate, followed by a majority vote on the rule change itself.) With that settled, we should also consider that the Constitution itself mandates super-majorities in the Senate for various reasons, including expelling a senator; giving advice and consent for the president to ratify a treaty; convicting an impeached president, vice president, other officer or judge; overriding a veto; or proposing an amendment to the Constitution. It further specifies certain procedures that can be invoked by less than a majority, like the 1/5 vote to record the names of those voting on any given measure, or the minority vote required to compel the presence of absent senators in the absence of a quorum. The Constitution clearly contemplates these situations where the vice president's vote wouldn't matter, so it stands to reason that the Senate is free to adopt rules requiring a different vote threshold than simple majority. As to the hypothetical about rules governing tax legislation, I see nothing in the Constitution forbidding such a ludicrous procedure. I do see loads of evidence that it would be extremely impractical, including the 2/3 majority required to invoke couture on rule amendments; the "nuclear option" precedent; and the fact that the tit-for-tat is possible. Finally, all legislative bodies have substantially undemocratic procedures. Referring matters to committee is undemocratic, restricting floor amendments is undemocratic, points of order are undemocratic, etc. It seems to me that preserving the minority's right to further debate is not so different.
- returningfory2 3y ago
  > The Constitution clearly contemplates these situations where the vice president's vote wouldn't matter, so it stands to reason that the Senate is free to adopt rules requiring a different vote threshold than simple majority. Just a note that the Supreme Court has generally reached the opposite conclusion to this in situations where the Constitution specifies special behavior. The general philosophy seems to be: if the Constitution specifies conditions under which there is a special behavior, that special behavior can _only_ apply under those conditions. For example in Reynolds v. Sims [1], the Court held that state legislature districts had to have roughly equal population sizes even though the US Senate by design has districts of dramatically different populations sizes. The existence of a specific exemption to "one person one vote" in the US Constitution doesn't permit other exemptions. I feel there's a similar thing with presidential qualification. The Constitution lists certain conditions (e.g. 35 years or older), but then Congress can't add additional conditions. [1] https://en.wikipedia.org/wiki/Reynolds_v._Sims https://en.wikipedia.org/wiki/Reynolds_v._Sims
anticensor 3y ago
> The rule is that debate by default is unlimited; in order to close debate on any non-rule change, sixty senators must agree to invoke "cloture," after which debate continues for up to thirty hours under various restrictions. There is a solution to that as well: put explicit limits on the length of speech and the number of speakers for each debate item. This worked well in the Turkish legislature to make the legislature faster.

herczegzsolt 3y ago

> to create a rule that all (...) require unanimous consent? What you describe is pretty much what has happened and still is happening in Hungary. The conclusion here is that even if the majority agrees that these rules are against the spirit of the democracy, there's nothing practical to do against them. So yeah, checks and balances are important to have in practice, not just in spirit. When you're relying on self-imposed limitations, radicals will sooner or later take over and do whatever necessary to stay in power.

baryphonic 3y ago

> In general, the Senate's ability to set its own rules surely cannot be unrestricted. For example, when the Democrats had 60 votes in the Senate would it have been constitutional for them to create a new rule that all tax decreases require unanimous consent of the Senate? Or for Republicans in the same situation to create a rule that all tax increases require unanimous consent? Both of these changes would seem to be within the rule-making authority of the Senate. However both rules would be profoundly undemocratic because they would generally prevent a majority (or supermajority) of US voters from changing US tax law in the future. I think we should clarify that there is no "filibuster rule" in the Senate. The rule is that debate by default is unlimited; in order to close debate on any non-rule change, sixty senators must agree to invoke "cloture," after which debate continues for up to thirty hours under various restrictions. Then the vote on the underlying measure (e.g. a bill, a resolution, advice & consent on an executive matter) takes place with the majority vote rule. (Debate about rule changes can only be ended by 2/3 of the Senate, followed by a majority vote on the rule change itself.) With that settled, we should also consider that the Constitution itself mandates super-majorities in the Senate for various reasons, including expelling a senator; giving advice and consent for the president to ratify a treaty; convicting an impeached president, vice president, other officer or judge; overriding a veto; or proposing an amendment to the Constitution. It further specifies certain procedures that can be invoked by less than a majority, like the 1/5 vote to record the names of those voting on any given measure, or the minority vote required to compel the presence of absent senators in the absence of a quorum. The Constitution clearly contemplates these situations where the vice president's vote wouldn't matter, so it stands to reason that the Senate is free to adopt rules requiring a different vote threshold than simple majority. As to the hypothetical about rules governing tax legislation, I see nothing in the Constitution forbidding such a ludicrous procedure. I do see loads of evidence that it would be extremely impractical, including the 2/3 majority required to invoke couture on rule amendments; the "nuclear option" precedent; and the fact that the tit-for-tat is possible. Finally, all legislative bodies have substantially undemocratic procedures. Referring matters to committee is undemocratic, restricting floor amendments is undemocratic, points of order are undemocratic, etc. It seems to me that preserving the minority's right to further debate is not so different.

returningfory2 3y ago
> The Constitution clearly contemplates these situations where the vice president's vote wouldn't matter, so it stands to reason that the Senate is free to adopt rules requiring a different vote threshold than simple majority. Just a note that the Supreme Court has generally reached the opposite conclusion to this in situations where the Constitution specifies special behavior. The general philosophy seems to be: if the Constitution specifies conditions under which there is a special behavior, that special behavior can _only_ apply under those conditions. For example in Reynolds v. Sims [1], the Court held that state legislature districts had to have roughly equal population sizes even though the US Senate by design has districts of dramatically different populations sizes. The existence of a specific exemption to "one person one vote" in the US Constitution doesn't permit other exemptions. I feel there's a similar thing with presidential qualification. The Constitution lists certain conditions (e.g. 35 years or older), but then Congress can't add additional conditions. [1] https://en.wikipedia.org/wiki/Reynolds_v._Sims https://en.wikipedia.org/wiki/Reynolds_v._Sims

anticensor 3y ago

> The rule is that debate by default is unlimited; in order to close debate on any non-rule change, sixty senators must agree to invoke "cloture," after which debate continues for up to thirty hours under various restrictions. There is a solution to that as well: put explicit limits on the length of speech and the number of speakers for each debate item. This worked well in the Turkish legislature to make the legislature faster.