There Is Nothing “Unconstitutional” about the Filibuster
Those in the Senate majority, and their supporters, have never liked the filibuster, as it often prevents the majority from enacting desired policies. This is particularly true today, as political polarization has increased legislative obstruction.
Assume, for the moment, that the filibuster is bad. Is it also unconstitutional? Some think so. Back in March, law professors Erwin Chemerinsky (Dean at Berkeley) and Burt Neuborne (NYU) argued in the Los Angeles Times that the filibuster gives the Senate minority an “unconstitutional veto” and that Vice President Kamala Harris, in her role as President of the Senate, should simply declare it to be so. Chemerinsky expanded on the argument that the filibuster is “unconstitutional” last month in a solo op-ed in the Sacramento Bee.
The argument that the Senate filibuster is unconstitutional is clever, but it is also thoroughly unconvincing. Let me highlight a few of the flaws in the arguments these op-eds make.
The first argument is that “the current version of the Senate filibuster . . . which essentially establishes a 60-vote supermajority rule to enact legislation in the Senate, is unconstitutional because it denies states “equal Suffrage in the Senate” in violation of Article V of the Constitution.” As Chemerinsky and Neuborne explain:
Wyoming with 580,000 inhabitants, elects the same number of senators as California, with its 40 million residents. A person in Wyoming thus has 65 times more voting power in the Senate than a person living in California. The current 60-vote filibuster rule makes this imbalance even worse.
Under the 60-vote rule, 41 senators representing about a third of the population can outweigh 59 sena
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