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Amar: Filibuster Changes Made Simple

But there is at least one basic constitutional principle that cannot be changed: majority rule. The Constitution makes no sense without this rule as the implicit backdrop. Constitutional amendments require supermajorities precisely because ordinary statutes do not; overruling a president’s veto requires a two-thirds vote of each house precisely because passing an ordinary law requires something less, namely a simple majority.

Notably, the Senate’s existing filibuster rules do not themselves purport to require a supermajority vote to change them. But they do purport to require a supermajority vote to end debate on the question of a filibuster overhaul.

To counter this Catch-22, the Senate must insist that its own rules of debate stay within their constitutional bounds and do not unconstitutionally morph into entrenched supermajority voting rules. Thus, the Senate on any further day may decide that filibuster overhaul opponents are actually preventing filibuster changes from ever coming to a vote and have thereby transformed a proper rule of debate into an unconstitutional supermajority rule of decision. In response, a simple majority of the Senate can rule any filibuster out of order, as a violation of constitutional first principles.

Those who want a filibuster overhaul should not concede (as many appear wont to) that whatever rule changes or reinterpretations they are able to accomplish this January are the only changes that may be made during the 113th Congress. And filibuster supporters, for their part, need to reacquaint themselves with the basic republican (small r!) principle of majority rule. Unless the Constitution itself explicitly specifies otherwise (as it does for veto overrides, impeachment trials and so on), the Senate always — every day — operates by ultimate majority rule. Every Senate rule and procedure must be amendable by a determined Senate majority, if that determined majority deems the old rule unsuitable. It’s just that simple.

Akhil Reed Amar is Sterling professor of law and political science at Yale and the author of “America’s Unwritten Constitution: The Precedents and Principles We Live By.”

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