The Federal Government on Spending Autopilot – Part 5

How Senate filibuster supermajority rules keep federal spending on autopilot.

As discussed in a previous essay, mandatory federal spending laws enacted decades ago require entitlement spending programs to continue and grow unabated, automatically, unless a new federal statute reforming these programs, or limiting their budgets, is enacted into law by Congress.  As difficult as it is to attract majority support for any given approach to reforming mandatory spending programs, it’s even more difficult to enact reform legislation under the Senate’s current filibuster rules, which allow a minority of Senators to require 60 votes (a supermajority of 100 total Senators) for passing any legislation out of the Senate.  Senate rules thereby place a supermajority requirement on mandatory spending entitlement reform legislation, and as long as a minority of 40 Senators object to reform, such reforms can’t pass the Senate, and in the meantime mandatory spending on entitlement programs continues on and on, unchecked.

In future essays I’ll propose some more specific legislative reforms designed to help make federal mandatory spending and the procedures governing it more reasonable, but for now I want to make an argument against the Senate filibuster rule, which makes any given legislative reform much harder to achieve.

According to the Pew Research Center, only 41 percent of Americans even know that current Senate rules require 60 votes rather than a simple majority vote to pass legislation.  But those current rules are causing huge future fiscal problems.  In this essay, I’ll put my lawyer hat on and explain why I think the Senate filibuster rule isn’t just a bad idea, but it may also be unconstitutional.  (And with my lawyer hat will come a bunch of sometimes odd-looking legal citations, which I’ll put in parentheses.)

The Founders understood that it was of vital importance that Congress operate on the principle of majority rule.  James Madison wrote in Federalist Paper No. 10 that “[i]f a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote.”  Madison further explained, in Federalist No. 58, that while “[i]t has been said that more than a majority ought to have been required for a quorum, and in particular cases, if not in all, more than a majority of a quorum for a decision,” in a government constrained by such a principle, “where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed.  It would be no longer the majority that would rule; the power would be transferred to the minority.”

Alexander Hamilton, in Federalist Paper No. 22, also clearly stated that “the fundamental maxim of republican government ... requires that the sense of the majority should prevail.”  Hamilton explained further that

[t]o give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision) is in its tendency to subject the sense of the greater number to that of the lesser number ... The necessity of unanimity in public bodies, or something approaching towards it, has been founded upon a supposition that it would contribute to security.  But its real operation is to embarrass the administration, to destroy the energy of government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberation and decisions of a respectable majority.

Indeed, the delegates to the Constitutional Convention had just experimented with disastrous supermajority requirements under the Articles of Confederation, under which the Continental Congress needed a two-thirds vote of the states to pass certain categories of legislation, including legislation addressing revenue, spending, and military matters. (See Calvin Jillson and Rick K. Wilson, Congressional Dynamics: Structure, Coordination, and Choice in the First American Congress, 1774-1789 (Stanford University Press 1994) at 140.  Under the Articles of Confederation, gridlock had ensued, and the new federal Constitution was designed to prevent such gridlock.)

This original understanding of the need for majority rule in Congress is threatened by the current version of the Senate rules governing filibusters, which allows a minority in the Senate to prevent that body from passing legislation sent to it by the House, and supported by a majority of Senators, so the President can then exercise his or her signing or veto authority, ensuring accountability for all.

Both Hamilton and Madison stressed that majority rule was particularly important during national emergencies.  Hamilton stated in Federalist Paper No. 22 that

[i]n those emergencies of a nation in which the goodness or badness, the weakness or strength, of its government is of the greatest importance, there is commonly a necessity for action.  The public business must in some way or other go forward.  If a pernicious minority can control the opinion of a majority [the result would be] tedious delays; continual negotiation and intrigue; contemptible compromises of the public good ... It is not difficult to discover that a principle of this kind gives greater scope to ... domestic faction, than that which permits the sense of the majority to decide.

And Madison stated in Federalist No. 58 that “[w]ere the defensive privilege [such as a 60-vote rule] limited to particular cases, an interested minority might take advantage of it to screen themselves from equitable sacrifices to the general weal, or, in particular emergencies, to extort unreasonable indulgences.”

As former Senator Lieberman has observed, a 60-vote requirement for the passage of legislation in the Senate violates the principle of democratic accountability and perverts the intentions of the Founding Fathers.  Senator Lieberman said:

the Framers ... made a clear decision, which was that the Congress – and let me be more specific, that the Senate – was to be a majoritarian body; that the majority would rule ... It is hard for a majority to be held accountable fairly to the public if ... a party ... can block the majority from attempting to work its will, from attempting to pass its program, and then, unfairly in some cases, the majority may be held accountable for that failure even though it was the minority who blocked action by filibustering that resulted in the failure to produce.  (Congressional Record (January 5, 1995) at S433, S434.)

Some argue that a 60-vote requirement fosters moderation in legislation.  However, a 60-vote requirement will produce moderation only if the sixtieth senator necessary for passage is closer to the “moderate” view than the fiftieth senator.  To the extent that such a requirement may sometimes encourage a majority to moderation, it may correspondingly also encourage a minority in its intransigence.  Indeed, under a 60-vote rule, a moderate majority may have to accept immoderate legislation in order to avoid the even more immoderate outcome of failing to pass legislation addressing urgent issues.  This is the conclusion of the authors of a book on Senate rules published by the Brookings Institution, in which the authors state “The filibuster is used ... in ways that prevent moderate positions from receiving Senate approval.” (See Sarah A. Binder and Steven S. Smith, Politics or Principle? Filibustering in the United States Senate (Brookings Institution Press 1997) at 159.)

Of course, under Article I, Section 5, clause 2 of the Constitution, each chamber of Congress has the power to make its own rules as long as the rules don’t violate other constitutional provisions.  But here’s the problem.  Senate Rule 22 incorporates the rules of parliamentary practice in Jefferson’s Manual adopted in 1837 to the extent they are not inconsistent with the standing rules and orders of the House and the joint rules of the Senate.  Section 388 of Jefferson’s Manual states that “Congress may not by law interfere with the constitutional right of a future House to make its own rules ... [and] one House may not continue its rules in force to and over its successor.” (Thomas Jefferson, A Manual of Parliamentary Practice (New York, Clark & Maynard 1874) at 184.)  However, Senate Rule 5 provides that “[t]he rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.” The House of Representatives, in contrast, adopts new rules every Congress by majority vote, which upholds the will of the House legislative majority each Congress.  (See Rules of the House of Representatives, H.R. Doc. No. 103‑342, at 768 (1995).)    Under Senate Rule 22, however a change in Senate rules requires a two-thirds, not a majority, vote. (See Senate Committee on Rules & Administration, Standing Rules of the Senate, S. Doc. No. 102‑25, at 15‑16 (1992) (Rule 22 requires the votes of two‑thirds of senators present and voting to change Senate rules).)  What this means is that while the Senate, decades ago, adopted the current filibuster rule by a majority vote, today under Senate rules it would take a two-third vote to overturn that filibuster rule, which made it much more difficult for future Senators to change the rule (and reduced the voting power of future Senators in that regard).

This entrenchment of the filibuster may violate a fundamental constitutional principle, namely the principle that one legislature can’t bind subsequent legislatures, a principle that was expressed long ago by the great English jurist William Blackstone, who wrote that “Acts of parliament derogatory from the power of subsequent parliaments bind not ... Because the legislature, being in truth the sovereign power, is always of equal, always of absolute authority: it acknowledges no superior upon earth, which the prior legislature must have been, if its ordinances could bind the present parliament.” (1 William Blackstone, Commentaries 90.)

The U.S. Supreme Court, too, has often expressed this principle against legislative entrenchment.  In Ohio Life Insurance and Trust Co. v. Debolt (57 U.S. (16 How.) 416, 440 (1853)), the Court held that one session of a legislature could not limit the ability of future sessions to impose taxes, stating that

[t]he powers of sovereignty confided by the legislative body of a state are undoubtedly a trust committed to them, to be executed to the best of their judgment for the public good; and no one Legislature can, by its own act, disarm their successors of any of the powers or rights of sovereignty confided by the people to the legislative body. (Id. at 431.)

Similarly, in Newton v. Commissioners (100 U.S. 548 (1879)), the Court ruled that the Ohio legislature could move its state capitol, notwithstanding decisions by a legislature thirty years earlier as to its location.  The Court declared that

[e]very succeeding Legislature possesses the same jurisdiction and power ... as its predecessors.  The latter must have the same power of repeal and modification which the former had of enactment, neither more nor less.  All occupy, in this respect, a footing of perfect equality. This must necessarily be so in the nature of things.  It is vital to the public welfare that each one should be able at all times to do whatever the varying circumstances and present exigencies touching the subject involved may require.  A different result is fraught with evil. (Id. at 559.)

And in other cases, the Court has stated that it’s unconstitutional for a legislature to bind its successors.  In Connecticut Mutual Life Ins. Co. v. Spratley, the Court said “each subsequent legislature has equal power to legislate upon the same subject.  The legislature has power at any time to repeal or modify [an] act.” (172 U.S. 602, 621 (1898).)   In Reichelderfer v. Quinn, the Court wrote of “the will of a particular Congress which does not impose itself upon those to follow in succeeding years.” (287 U.S. 315, 318 (1932).)  And in footnote four of United States v. Carolene Products Co., (304 U.S. 144 (1938)), the Court also noted the possibility of applying a “more exacting judicial scrutiny” when evaluating legislation that “restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation.” (Id. at 152 n.4.)  Congressional rules that allow simple majorities of one session of Congress to change the rules such that the new rules limit the legislative power of majorities of future sessions could be viewed as precisely the sort of restriction the Supreme Court was concerned about.

Rule 22 effectively extends a supermajority requirement to the passage of any measure before it, including proposed rule changes.  Rule 5 preserves all Senate rules from one session to the next. (See Rule V, S. Doc. No. 17, 102d Cong. (1992).)  The Senate may therefore be violating the Supreme Court’s declaration in Newton by depriving “succeeding legislature[s] ... [of] the same jurisdiction and power ... as its predecessors.” (100 U.S. 548, 559 (1879).)  Rule 22 and its interaction with Rule 5 may be unconstitutional because it denies the members of each future session of the Senate the ability to decide for itself by majority vote whether to have a version of Rule 22 and to allow filibusters during that session, or not.

One way to consider how the Senate’s filibuster rule unconstitutionally weakens the voting power of future Senators is to consider the following hypothetical.  If the Senate rules can constitutionally require a 60-vote majority to advance legislation (and require 67 votes to change such a rule), why couldn’t Senate rules require, for example, a 100-vote majority (unanimity) in order to advance, say, legislation that cuts taxes, and then impose a rule that says that 100-vote rule couldn’t be changed unless 100 Senators voted to change it?  If a certain principle allows a 60-vote majority rule, how can one say a 100-vote rule, or a 90-vote rule, is not also acceptable?  But clearly those examples show how super-majority rules in the Senate, if they can’t be trumped by a simple majority vote by current Senators, pose significant problems for consistent voting power among Senators, current and future, and could unfairly lock in various legislative policies going forward.

While some argue that the Senate filibuster is necessary when, say, Republicans are in the minority in the Senate, in order to block further expansions of government, the flip side of that coin is that the Senate filibuster rule acts to maximize the difficulty of enacting government downsizing reforms at the same time mandatory spending rules continue to grow the federal government, unabated.  Consequently, it’s not likely that the Senate filibuster rule tends toward producing a smaller, rather than larger, federal government; rather, the Senate filibuster rule may likely keep government growing automatically by making federal entitlement reform more difficult.

Indeed, by allowing only 40 Senators to block the consideration of any legislation, a minority of Senators can block the consideration of individual appropriations bills until the eleventh hour, thereby forcing the lumping of the funding of the entire federal government into one “must-pass” bill (“must pass” because if it isn’t passed, the entire federal government will be defunded) that for all practical purposes severely limits opportunities for reform.  For example, for fiscal year 2016, the House passed individual appropriations bills for Commerce, Justice, and Science; Defense; Energy and Water; Interior and the Environment; the Legislative Branch; Transportation and Housing and Urban Development; and Military Construction and Veterans Affairs.  The Senate passed only an individual Military Construction and Veterans Affairs appropriations bill, thereby forcing the passage of one big omnibus appropriations bill right before Congress adjourned for Christmas in 2016.

Granted, getting ride of the Senate filibuster rule would make it easier for Senate majorities to increase mandatory entitlement spending as well.  But as explained in previous essays, automatic federal mandatory spending is already well out of control, and will likely get worse if it remains so difficult for future duly-elected, reform-minded Senate majorities to enact the necessary Senate reforms.

Links to all essays in this series: Part 1; Part 2; Part 3; Part 4; Part 5; Part 6