Balkinization: Constitutional Obligation and the Filibuster Carveout

Constitutional Obligation and the Filibuster Carveout

Joseph Fishkin

In January, 48 Democratic Senators voted to create a carve-out to the filibuster rule to allow simple-majority passage of the John Lewis Act (the Freedom to Vote Act). They were two votes short, but it was notable, and widely noted, that that number was just two (Machin and Sinema). The 48 Democratic Senators who voted for this change to the filibuster rule included a number of so-called “institutionalist” Senators, often with many years of service, who tend to be friendly to retaining the filibuster. Now we are in the midst of a new political push, championed by Josh Marshall of Talking Points Memo and others, to get the same 48 Democratic Senators to commit to the principle that there should similarly be a filibuster carve-out for federal legislation codifying Roe v. Wade.

Many Democrats are of the view that it is past time to get rid of the filibuster altogether. We have already created large exceptions to the filibuster for the main things Republican Senators most want to do—cut taxes, slash the budgets of certain parts of the federal government while spending more on others (that’s budget reconciliation); confirm Supreme Court Justices and other federal judges and executive branch officials. What the filibuster still makes impossible is new affirmative legislation by Congress that actually does anything outside of those spheres. In an increasingly polarized age, it is very unsurprising that the filibuster has been eroded. But its peculiarly uneven pattern of erosion has been a disaster both for Democrats and for democracy.

From this perspective, the actual vote on the John Lewis Act and the parallel effort to rally support now for an abortion law carve-out are very positive developments. What the Democrats other than Manchin and Sinema are saying, through these efforts, is this: Even if we retain the filibuster for most legislation, it is important that certain legislative acts, including these two in particular (voting rights and reproductive freedom) are as worthy of a special carve-out as budget bills and judicial confirmation votes.

But why those?

The best answer is constitutional obligation.

The Constitution doesn’t speak to specific questions of Senate rules such as whether the Senate should have a filibuster rule (or if so, what the various carve-outs should be). However, the Constitution obligates Congress to pass the laws that are necessary to enforce its provisions and principles. When the Supreme Court, for its own reasons, errs by eviscerating important constitutional guarantees—such as the right to vote free from racial discrimination, or women’s right to equal protection and bodily autonomy, to take the two examples under discussion today—legislators who believe in those constitutional guarantees are obligated to find a way to pass statutes to enforce them.

One of the major things I learned in working on The Anti-Oligarchy Constitution with Willy Forbath is that for most of American history, members of Congress spoke and thought a great deal more than they do today about their constitutional obligations. Senators and Members of Congress regularly argued that the core principles and guarantees in our Constitution obligated Congress to act—whether on tariffs and internal improvements, on redistributing land and providing education to the former slaves, on breaking up large concentrations of oligarchic economic power through antitrust, on creating a statutory framework for the right to organize and strike, or many many other examples. Today, our Senators and Members of Congress are in the grip of a different model of constitutional democracy in which their job is just to legislate good “policy,” whereas constitutional questions are for the wise apolitical Guardians on the Supreme Court.

Lately that model has been enough of an abject disaster both for Democrats and for democracy that it is beginning to provoke a rethinking. I think the politics of filibuster carve-outs are actually not a bad place to engage in some of that rethinking—not a bad place for Senators to begin to reclaim a little bit of their own essential role in interpreting the Constitution. When asked, inevitably, “why support a filibuster carve-out for X and not Y?” A good answer is: “Because constitutional principle requires me to find a way to enact X, and creating a filibuster carve-out is a reasonable way to do that.”

Posted 8:20 PM by Joseph Fishkin [link]