Copyright 2011 by Northwestern University School of Law Printed in U.S.A. Northwestern University Law Review Vol. 105, No. 1 REFORMING THE FILIBUSTER Gerard N. Magliocca* Filibusters are a necessary evil, which must be tolerated lest the Senate lose its special strength and become a mere appendage of the House of Representa- tives.† The House of Lords is not the watchdog of the constitution; it is Mr. Balfour’s poodle.‡ INTRODUCTION............................................................................................................. 303 I. THE HISTORY OF UNLIMITED DEBATE .................................................................. 308 A. Folkways in the Traditional Senate............................................................. 308 B. The Two-Track System and Supermajority Rule ......................................... 313 II. A SUSPENSORY VETO AND THE HOUSE OF LORDS ................................................. 316 A. A Compromise Proposal ............................................................................. 317 B. Drawing on the British Parliamentary Experience..................................... 319 III. MAKING THE SENATE SEE THE LIGHT ................................................................... 323 A. Native Americans, Elections, and Treaties.................................................. 324 B. Unconventional Action and the Filibuster .................................................. 327 CONCLUSION................................................................................................................ 328 INTRODUCTION The most troubling countermajoritarian difficulty in modern constitu- tional law is Rule XXII of the United States Senate.1 Forty-one senators, * Professor of Law, Indiana University School of Law–Indianapolis. Many thanks to Carlo Andre- ani, Aaron Bruhl, Josh Chafetz, Dan Cole, and Mike Pitts for their excellent comments. † GREGORY J. WAWRO & ERIC SCHICKLER, FILIBUSTER: OBSTRUCTION AND LAWMAKING IN THE U.S. SENATE 7 (2006) (quoting Senator Robert C. Byrd). ‡ ROY JENKINS, MR. BALFOUR’S POODLE: PEERS V. PEOPLE 10, 42–44 (1954) (quoting Prime Minis- ter David Lloyd George attacking the veto held by the House of Lords prior to the Parliament Act of 1911 by noting that the peers were acting in a partisan fashion to support the Tory opposition leader in the House of Commons). 1 See ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 16 (2d ed. 1986) (coining “counter-majoritarian difficulty” to describe judicial re- view); see also U.S. SENATE COMM. ON RULES AND ADMIN., STANDING RULES OF THE SENATE, S. DOC. NO. 110-9, at 16–17 (2007) (Rule XXII(2)), available at http://rules.senate.gov/public/index.cfm? p=RuleXXII (stating that on most questions whether a Senate debate “shall be brought to a close[] . 303 N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W who could represent less than forty-one percent of the population due to the malapportionment of the Senate,2 can veto most legislation and presidential nominations by refusing to invoke cloture. A vote against cloture by that Senate minority sustains debate indefinitely as a filibuster. Although the filibuster is woven into our political folklore and critical to the legislative process, few legal scholars have examined the practice.3 This lack of inter- est is surprising because the presumption that a supermajority is required for most Senate action is a recent development that casts a shadow over democratic self-government.4 This Essay evaluates the tradition of unlimited debate in the Senate and argues that a refusal to vote for cloture should result in a suspensory rather shall be decided . by three-fifths of the Senators duly chosen and sworn” (internal quotation mark omitted)). 2 See U.S. CONST. art. I, § 3, cl. 1 (“The Senate of the United States shall be composed of two Sena- tors from each State . .”). The structure of the Senate is clearly contrary to the Supreme Court’s “one- person, one-vote” decisions. See Reynolds v. Sims, 377 U.S. 533, 574 (1964) (rejecting the federal analogy to the apportionment of state legislatures because “[t]he system of representation in the two Houses of the Federal Congress is one ingrained in our Constitution, as part of the law of the land. It is one conceived out of compromise and concession indispensable to the establishment of our federal re- public.”). It is also possible that forty-one senators can represent more than fifty percent of the popula- tion, thus one cannot say that the filibuster is always countermajoritarian. 3 See SARAH A. BINDER & STEVEN S. SMITH, POLITICS OR PRINCIPLE? FILIBUSTERING IN THE UNITED STATES SENATE 1 (1997) (“Perhaps no feature of legislative procedure has received more atten- tion—and less scrutiny—than the Senate filibuster.”); Catherine Fisk & Erwin Chemerinsky, The Fili- buster, 49 STAN. L. REV. 181, 183 (1997) (“[L]egal scholars have paid only limited attention to the filibusters.”); Michael J. Gerhardt, The Constitutionality of the Filibuster, 21 CONST. COMMENT. 445, 446 (2004) (“[V]ery few legal scholars have devoted serious attention to the filibuster.”); cf. MR. SMITH GOES TO WASHINGTON (Columbia Pictures 1939) (glamorizing the filibuster). There are exceptions to the cloture rule, most notably in the reconciliation process that governs the federal budget. See 2 U.S.C. § 907(b)–(d) (2006); Fisk & Chemerinsky, supra, at 215 (“Under the congressional legislation governing the budget, all budget reconciliation legislation is considered under procedural rules that strictly limit the time for debate and other procedural delay. Reconciliation bills cannot be filibustered because the time for debate is strictly limited by statute.” (footnote omitted)). The fact that sweeping health care was enacted in 2010 via reconciliation does not eliminate the need for filibuster reform. That result was possible only because the Senate invoked cloture and approved the initial version of the bill when Democrats had sixty votes. After that, both houses passed a separate rec- onciliation bill to smooth over the differences between the two chambers. This kind of political con- junction is rare. 4 See WAWRO & SCHICKLER, supra note †, at 157 (“In the contemporary Senate, with the exception of budget legislation and other bills where statutory requirements restrict minority obstruction, it is safe to assume that a 60% majority is generally necessary to adopt major legislation. In the pre-cloture Sen- ate, no such assumption appears appropriate.”); Fisk & Chemerinsky, supra note 3, at 199 (“[F]rom the late 1920s until the late 1960s, the filibuster became almost entirely associated with the battle over civil rights” and was not used on other issues.); Gerhardt, supra note 3, at 452 (pointing out that Senate liber- als opposed the filibuster on principle during the civil rights era). The President can circumvent filibusters of his nominees to some extent by making recess appoint- ments. U.S. CONST. art. II, § 2, cl. 3 (“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”). The Senate, however, can block this maneuver by holding nominal sessions every day (e.g., for two minutes). There cannot be a recess appointment without a recess. 304 105:303 (2011) Reforming the Filibuster than an absolute veto.5 In other words, forty-one senators should be able to extend debate on bills or nominations that reach the floor for no more than one year. My proposal is modeled on the power of the British House of Lords to block most bills passed by the House of Commons from becoming law for a maximum of one year.6 I argue that such a system would strike a better balance between a majority’s right to rule and the minority’s right to be heard. A suspensory veto under Rule XXII would also return the Senate to its traditional practice, which let a determined majority get its way except 7 at the end of a Congress when claims of undue haste were more legitimate. 5 This Essay assumes that Rule XXII is constitutional, or at least that no court would invalidate a long-standing Senate rule. See U.S. CONST. art. I, § 5, cl. 2 (“Each House may determine the Rules of its Proceedings . .”); Fisk & Chemerinsky, supra note 3, at 243 (“History strongly suggests that allow- ing Congress to implement a supermajority voting rule is constitutionally acceptable.”); Gerhardt, supra note 3, at 449 (“[T]he filibuster is best understood as a classic example of a nonreviewable, legislative constitutional judgment.”). 6 See Parliament Act, 1949, 12, 13 & 14 Geo. 6, c. 103, § 1 (U.K.) (stating that the House of Com- mons may enact a bill over the objection of the House of Lords by passing the bill in two consecutive sessions); Parliament Act, 1911, 1 & 2 Geo. 5, c. 13, § 1(1) (U.K.) (providing that money bills may be enacted by the House of Commons over the objections of the Lords after a one-month delay). Part II.B explains how this rule emerged and why that history is pertinent for the Senate cloture debate. 7 See BINDER & SMITH, supra note 3, at 6 (“Taking advantage of the constitutionally mandated ad- journment of Congress on March 4 of the odd-numbered years [prior to the Twentieth Amendment], senators perfected the art of exploiting the rules at the end of the session to block action on measures they opposed . .”); Fisk & Chemerinsky, supra note 3, at 195 (“The early filibusters were largely un- successful in blocking