The supporters of the filibuster are aspiring managers | The hill

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Sen. Kirsten SinemaKyrsten SinemaTlaib to deliver progressive response to Biden’s State of the Union address Color amid climate crisis Democrats try to regroup ahead of tough November MORE (D-Arizona) signaled — ambiguously — that she is reconsidering whether to support efforts to amend the filibuster to allow the senator. Joe ManchinJoe ManchinClimate advocates urge Biden in State of the Union prep Advocates scorn lawmakers over ‘crack pipe’ uproar Tlaib to deliver phased response to Biden’s State of the Union address MORE‘s (DW.Va.) Free Voting Act to be passed in the Senate. In a statement to Politico by its director of communications, John LaBombard wrote:

“[Sinema] continues to support the 60-vote Senate threshold, to protect the country from repeated drastic shifts in federal policy that would cement uncertainty, deepen divisions, and further erode Americans’ trust in our government. …Senator Sinema has asked those who want to weaken or eliminate the filibuster to pass suffrage legislation she supports if 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 the filibuster, so that senators and all Americans can hear and fully consider these ideas. , concerns and consequences.

What is striking about this debate is the presumption that the modern filibuster is constitutional. The Supreme Court will not rule on the matter, but even the most basic understanding of our constitutional history shows that the filibuster – as it has evolved – is clearly against 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 a bill in the Senate. This brake was obtained thanks to the will of a senator to speak in the Senate and to speak. Obviously, the Constitution provides that members of Congress have the right to free debate. So it was a shrewd hack of the Constitution by slavery-loving John C. Calhoun (DS.C.), 50 years after it was drafted, to exploit that right to effectively slow the passage of the legislation. If guaranteeing the right of every senator to speak for as long as he wishes meant, in the opinion of the court, that the consideration of a bill would take too long — given the other work that the Senate had to do — the consequence of this judgment would be that a bill would not be considered again. Until 1965, the only bills actually stopped in this way were civil rights bills. including, much to the shame of the Senate, bills that would have stopped the lynching of African Americans in the American South.

But the modern filibuster has nothing to do with guaranteeing anyone’s right to speak. The filibuster simply changes the rules determining whether a bill can be considered. With the exception of certain appointments or budget reconciliation, the filibuster effectively gives any senator the right to change the requirement of a bill passed by the US Senate. Under the modern filibuster, any senator has the power to demand that the bill get 60 votes to even be considered on the floor of the Senate. This makes the Senate a deliberative body with a qualified majority, rather than a deliberative body with a simple majority.

However, this requirement is manifestly incompatible with the authors’ conception. And so, why does anyone think it is constitutional for the Senate to enact such a rule? Again, I don’t mean that the Supreme Court will invalidate them. There are many reasons why the Court does not oversee the work of the Senate. Simply put, why would any senator believe, in good faith, that altering the Senate majority requirement was within their constitutional authority?

The framers of our Constitution knew how to craft a Supermajority Constitution. Indeed, the first generation of our framers did just that. the Articles of Confederation created a super-majority Congress. Most ordinary laws required a 2/3ds vote to pass. The reasons they did this are exactly the reasons Sinema promotes today: they too believed that a supermajority requirement would foster collaboration and cooperation. They, too, thought it would avoid wild changes in critical politics.

But what they and America quickly discovered was that they were dead wrong and the articles were a complete flop. No republic can govern itself if ordinary legislation requires a qualified majority. And when our framers debated our Constitution, they consciously rejected the idea of ​​a supermajority for ordinary legislation. Undoubtedly, there are places in the Constitution where a supermajority is required – 6 to be precise. But beyond these exceptions, the rule of our Constitution is majority.

So the question we should be asking senators like Sinema, who are trying to recreate our first totally failed constitution, is 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 barring women from the Senate, just because he thinks it’s a good idea?

If the senators who support the modern filibuster want to change the Constitution to make the Senate a supermajority chamber, let them propose that amendment, pass it through each chamber by a 2/3ds vote, and then they get ratification in 3/4 of the states. . But until that happens, there’s no reason to hide 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 can get 50 members of the Senate to agree. But even without that happening, we should all ask those budding founding senators, who made you the architects of our Constitution? And by what right can you amend our Constitution, without the opinion of the people?

Lawrence Lessig is the 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”.

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