Friday, May 18, 2012

Will the Supreme Court Declare the Filibuster Unconstitutional?

Washington Post columnist Ezra Klein noted this week that lawyer Emmet Bondurant is working to get the Supreme Court to declare that the Senate's filibuster in unconstitutional. Klein's article does a good job of describing the history of the filibuster and why it was not the intent of the Founders.

I've argued before, on this blog and elsewhere (see below), that the Senate should abandon the filibuster. Whether or not the Supreme Court would actually strike it down, though, is difficult to say.

Filibuster supporters could point to the fact that the Constitution gives the Senate the authority to make it's own rules. Also, while it is true that the Founders intended majority rule in most cases, they could argue that the 60 vote requirement for cloture is not the vote on the bill -- it's the vote to end debate on the bill. The outcome of such a case would depend, in part, on whether the Supreme Court finds that to be a distinction with, or without, a difference.

For more info on the filibuster, see:

Why Don't U.S. Senators Filibuster Anymore?, Suite101

Guest Post: Where do Florida Senate Candidates Stand on Senate Filibusters?

Ending Filibuster Good for Both Parties, The Columbus Dispatch

Will Democrats Try to End the Filibuster?