In the Los Angeles Times Erwin Chemerinsky of UC Berkeley School of Law and Burt Neuborne of New York University School of Law suggest a particularly inflammatory way to be rid of the Senate filibuster rule:
There is a clear next step in changing the Senate filibuster: Vice President Kamala Harris, as presiding officer of the Senate, can — and should — declare the current Senate filibuster rule unconstitutional. This would open the door for discussions on a new rule that would respect the minority without giving it an unconstitutional veto.
This is certainly true:
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 senators representing two-thirds. This situation surely violates the principle of equal representation in voting — for example, the “one person, one vote” rule that the Supreme Court long ago applied to state legislative and congressional districts.
Although precision would have led me to change voting power to representation.
But the point remains: While one of the original intentions of the Senate was to give small states equal representation with large states, as Chemerinsky and Neuborne note, the 17th Amendment changed the selection of Senators from state legislators to the people, and that means that no longer are the States acting as entities, but the People are voting individually. The more populous a State, the less impact any particular vote has.
And with the filibuster in place, that diminution of representation simply becomes less and less democratic.
But having Harris simply declare it unconstitutional? Chemerinsky and Neuborne seem to think that this would happen:
The full Senate could seek to overrule Harris by majority vote. In that case, the senators would no longer be debating the filibuster as mere political policy, but about a profound constitutional question. Sen. Joe Manchin, and a Republican senator or two, might well care about ensuring that no state is deprived of “equal suffrage” under the Constitution.
But I wonder. Taking the filibuster away by executive fiat, even if similar things have happened in the past, could be used as a propaganda club by the Republican outrage machine to great effect, even among independents. The Republicans might even choose not to contest it, contenting themselves with weeping and wailing.
Knowing that in two years, they might, at least in their dreams, have control of the Senate – and know they’ll have incurred no political penalty for killing the filibuster.
