Matt Yglesias cites a 15-year-old essay by Hendrick Hertzberg arguing that the filibuster is unconstitutional:
It’s true that the framers did not specify that the Senate would do its normal business by simple majority vote, but that’s because it didn’t occur to them that they had to specify it, any more than it occurred to them to specify that senators should not dunk each other’s powdered wigs in the inkwells. For, as the Supreme Court noted in 1892, “the general rule of all parliamentary bodies” that “when a majority is present, the act of a majority of the quorum is the act of the body…has been the rule for all time.”…. Unfortunately, the Court, which is extremely shy of challenging the internal workings of Congress, is not about to outlaw filibusters.
Matt tends to agree but 1) thinks it’s a good thing that the courts are reluctant to weigh in here; 2) the Senate could fix this if its Members wanted to; and 3) its members don’t want to because “most senators care more about their personal power and prerogatives than they do about the welfare of the country or the world.”
While I think the widespread use of the filibuster and other supermajority requirements like the Byrd Rule are extraconstitutional, they’re rather clearly not unconstitutional. Why? Because Article I, Section 5, Clause 2 specifies that “Each House may determine the rules of its proceedings.” So long as the rules don’t violate other provisions on the Constitution, then, the Senate can run itself however it damn well pleases. And it does!
UPDATE: Commenter TG Chicago writes, “I’d also be interested to know what you think of the good of the filibuster rather than just the legality of it.” I’ve written pretty extensively on the topic in the past but most people reading this post likely haven’t read those old posts.
Short answer: I think it’s a good thing if used for truly huge legislation that will have a major impact on the way we govern ourselves and a bad thing if it’s used routinely on even basic legislation. So, for example, filibustering a total overhaul of the health care system or a $1.3 trillion bailout is fair game but filibustering, say, Cash for Clunkers is not.
Additionally, I disagree with the use of the filibuster on presidential prerogatives, such as judicial and cabinet appointments, where the Senate’s intended role is merely advisory. With legislation, Congress is the lead actor with a presidential signature as an institutional check. For appointments, the president is the lead actor with the Senate there to prevent clearly unqualified nominees from getting through.
