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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Weekly Comment

The Filibuster and Democracy

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May 17, 2005

Rick Hasen, in a recent Roll Call column, made an important point about the relationship of the filibuster to majority rule: although the filibuster protects the minority party in the Senate, it can be seen as supporting overall majority rule in America since the minority party in the Senate - 44 Democrats plus one independent - represents more American citizens than the 55 Republicans in the Senate majority.

This point, echoed by others, leads to a larger one: the rules that structure the procedural operation of democracy, including the laws that govern the process of electing members of Congress, are part of a more general constitutional framework designed both to secure basic liberties and rights and to foster wise policymaking. Election laws are a major part of this more general constitutional framework, but they are by no means the only part. Constitutional protection of fundamental civil liberties - like freedom of religion, and the prohibition against unreasonable searches and seizures - serves a separate function from the fairness of the procedures for electing Senators and Representatives.

No matter how fair the rules for electing members of Congress may be, the Congress itself is not entitled to enact laws that violate religious liberty or unduly intrude upon the privacy of a person's body or home. That's because, as the Supreme Court famously said in 1943 Flag Salute Case, these fundamental rights "may not be submitted to vote; they depend on the outcome of no elections." The people put these fundamental rights into the Constitution so that they would not be subject to "the vicissitudes of political controversy," but rather remain "beyond the reach of majorities and officials."

Sharp and sustained disagreement, however, has developed over the scope of these constitutionally protected fundamental rights. Some see the protection of religious liberty as encompassing the right of public school students to be free from the subtly coercive effects of government-sponsored prayers. Others do not. Some see the constitutional protection of privacy to extend beyond bedroom searches to embrace a doctor-patient decision to terminate an unintended pregnancy. Others, most emphatically, do not.

When citizens disagree vehemently over the substance of the rights they want their Constitution to protect, the only resort is to procedures for resolving these disagreements. Ordinarily, we would look to the procedures for amending the Constitution as the ones to use to settle this sort of dispute. (After all, if there has been a disagreement about what the Constitution currently provides regarding these rights, and the Supreme Court has authoritatively resolved that disagreement in favor of one view over the other, then the most obvious way to change the provisions of the Constitution after the Court has determined their meaning is through a constitutional amendment. That, indeed, is the method that the Constitution itself sets forth.) But the extraordinary difficulty of amending the Constitution according to the procedures stipulated in Article V - a difficulty compounded by the fact that it is more onerous to secure ratification by three-fourths of the states when that requirement means adoption by 37 separate legislative bodies rather than 9, as was the case at the beginning - has caused those seeking constitutional change to look elsewhere. Since the practical meaning of the Constitution will change if different Justices on the Supreme Court interpret its existing provisions differently, those who want a different interpretation of the Constitution have set their sights on the procedures by which new Justices are appointed to the Court.

Here is where the current debate over the filibuster of judicial nominees comes in. The Constitution requires that the Senate give its "Advice and Consent" to the presidential appointment of Supreme Court Justices, in the same way as it does for the presidential appointment of Ambassadors. The Constitution does not specify the procedures for the Senate to use to give this Advice and Consent. Rather, the Constitution only states generally: "Each House may determine the Rules of its Proceedings."

The debate over the propriety of judicial filibusters would not matter so much if the appointment of judges were inconsequential. But because the appointment of new Supreme Court Justices potentially amounts to amending the Constitution, the current debate over the judicial filibuster is tantamount to a debate over the proper procedure for constitutional amendments. Yet because Framers of the Constitution never originally intended the Advice and Consent role of the Senate to serve as a surrogate method of ratifying (or blocking) proposed constitutional changes, the Constitution itself is silent on whether it is appropriate for the Senate to use its usual filibuster rules when engaging in this extraordinary Constitution-amending function.

The absence of clear guidance on this point exposes the importance of the individuals who inhabit the Senate, who first will decide whether or not judicial filibusters are permissible and, then, if and when a vote on a Supreme Court nominee comes to the floor of the Senate, whether the nominee is one who ought to sit on the Court. In making these judgments, each individual Senator will be participating in the process for determining the future direction of American constitutional law. While Senators make many important decisions on behalf of their constituents, few are as fundamental as the future of the Constitution itself.

Insofar as the Senators shape the future of the Constitution, the procedures for selecting the Senators become all the more important. If there is unfairness in the rules for electing Senators, then our entire system of government is plagued by an elementary unfairness that infects the process by which we choose to change our constitutional charter. Ironically, then, although election law is supposed to be but one component of an overall constitutional structure, it turns out that the whole structure depends upon the fairness of election law for its ongoing legitimacy.

Thus, whatever the result of the filibuster debate (does the Senate go "nuclear," or not?), and whomever ends up being confirmed to the Supreme Court as a result of the next few anticipated vacancies, we can expect continued - even increased - interest in assuring the procedural fairness of elections. As long as the content of the Constitution depends upon the identity of individuals who hold public office, then we will care intensely about the procedures for installing those individuals into office. (This point, as we have seen, applies as much to the President and the Senators, given their role in appointing judges, as it does to the judges who themselves interpret the Constitution.) Consequently, issues about voting procedures - registration rules, provisional ballots, recount standards, and the like - won't wither away. Instead, they will magnify in importance. The same point applies to issues of campaign finance, especially if immense personal wealth is increasingly perceived as a prerequisite for admission to the Senate.

Of course, there is no consensus on the essential elements of electoral fairness. Americans debate whether voters should be required to show ID with the same fervor as they debate government-sponsored prayers in public schools. And there are zealots on both sides of the debate over campaign spending limits, just as there are on substantive social issues (like gay marriage).

In the absence of a consensus on what a fair set of electoral rules would be, we depend upon public officials to exercise their best judgment in choosing among the options available. We had hoped to rely on a fair set of election laws to give us public officials whom, by virtue of the procedures used to install them into office, we could trust to govern on our behalf. Now we need to rely on public officials to give us a set of election laws that we can trust as fair, by virtue of the considered judgment these officials exercise in adopting them. It's a chicken-and-egg dilemma, after all.

Yet it is valuable just to recognize this point. There is no perfect set of procedures for guaranteeing the fairness of democracy. As important as it is to strive to get election law right, it is important also that elected officials feel bound by substantive standards of political fairness. The enduring lesson of the 1943 Flag Salute Case is that elected officials should never assume that their election, having been procedurally proper, entitles them to adopt whatever substantive policies they prefer. Likewise, the filibuster is neither a sacred procedural device, without which no government could ever function fairly; nor is it a scourge on democracy, intrinsically antithetical to the ultimate sovereign authority of "We the People of the United States ." With or without the filibuster, the Senators must act wisely in deciding whether or not to confirm a Supreme Court nominee, just as the Supreme Court justices themselves must act wisely when they rule in constitutional cases, including cases involving the fairness of the electoral process.

In the end, we must depend on the verdict of history to tell posterity whether the leaders of our era exercised wise leadership. As our nation navigates the current period of constitutional transition, some of us cannot help but wonder what historians will be saying - 50, 100, or 150 years from now - about the specific choices made by individual Senators in exercising their role in confirming Supreme Court justices, as well as the specific choices the new Justices themselves make in interpreting the ambiguities of our procedurally imperfect Constitution.