Leading Scholars: Constitution and Tradition Support Changing Filibuster Rules by Majority Vote

In January, the newly-convened Senate has the authority to change filibuster rules by a majority vote, according to a letter sent to the Senate today by a group of leading academics and constitutional scholars.

The letter includes diverse voices such as Michael McConnell (Stanford Law professor, former federal judge), Charles Fried (Harvard Law professor, former Solicitor General under President Reagan), Erwin Chemerinsky (Dean of UC-Irvine Law School), and Burt Neuborne (NYU Law professor), among others. It explains how the Senate’s power to change its rules by a majority vote stems directly from the constitutional mandate that each chamber will “determine the Rules of its Proceedings.”

An excerpt (emphasis ours):

“The current debate over whether to alter the 113th Senate’s rules raises serious questions of policy and political judgment. We take no position on the wisdom of any proposed change. Some, however, have sought to elevate the debate to constitutional dimensions by suggesting that it is institutionally improper for a new Senate to alter the Senate’s rules by majority vote because the internal procedures adopted by prior Senates have required a two-third majority to allow a vote on a motion to alter the rules.

“With respect, such a concern confuses the power to change the Senate’s rules during a session, with the unquestioned constitutional power of each incoming Senate to fix its own rules unencumbered by the decisions of past Senates. The standing two-thirds requirement for altering the Senate’s rules is a sensible effort at preventing changes to the rules in the midst of a game. It cannot, however, prevent the Senate, at the beginning of a new game, from adopting rules deemed necessary to permit the just, efficient and orderly operation of the 113th Senate. Thus, bound up in the current debate over filibuster reform is a related, but distinctly separate, question: What are the limits of each new Senate’s authority to determine its own rules of procedure?

“The undersigned—scholars in the fields of constitutional law and Senate procedure and history—submit this letter to clarify the constitutional framework that governs the Senate’s rulemaking authority. We agree with the overwhelming consensus of the academic community that no pre-existing internal procedural rule can limit the constitutional authority of each new Senate to determine by majority vote its own rules of procedure.”

Read the full letter here. For more information on the sharp rise of legislative obstruction, see the Brennan Center’s report, Curbing Filibuster Abuse.

To set up an interview with a Brennan Center expert, please contact Erik Opsal at erik.opsal@nyu.edu or 646–292–8356.