WashU Expert: Filibuster carve-out protects majority rule

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A voting rights filibuster “carve-out” — or making an exception to the 60-vote threshold to overcome a legislative filibuster — would help to preserve the core democratic principle of majority rule, says an expert on constitutional law at Washington University in St. Louis.

Still, a voting rights carve-out could create a slippery slope to more filibuster changes, said Gregory Magarian, the Thomas and Karole Green Professor of Law.

President Biden has said he will endorse a controversial filibuster exception, or “carve-out,” in order to pass voting rights legislation.

The Constitution lets the two houses of Congress make their own procedural rules, Magarian said. “The U.S. Senate long ago chose to adopt the filibuster rule, which effectively requires a 60-vote supermajority for any Senate vote,” he said. “The Senate can change or fully eliminate the filibuster by a simple majority vote. In recent years, Senate majorities of different parties have ended the filibuster — first for lower federal court nominations and then for Supreme Court nominations.”


The idea of a voting rights “carve-out” might seem arbitrary — why that subject and not others? — but it isn’t, Magarian said.

“The filibuster, by its nature, allows a minority — 41 senators — to dictate the content of federal legislation. Because the Senate gives equal representation to large and small states, a group of senators that represent just 22% of the U.S. population can effectively control federal law. Filibuster skeptics make a strong argument that such a radical degree of minority rule is wholly undemocratic and should never be allowed.”

The voting rights “carve-out” rests on a more modest claim, he said.

“Even if we allow a tiny minority of the country to control substantive law, we shouldn’t allow that minority to run democracy itself. Our Constitution’s democratic design creates majority rule with checks to protect the minority. But subjecting voting rights legislation to the Senate filibuster lets the minority sabotage the majority’s efforts to elect its chosen representatives, including senators, in the first place. It’s hard to imagine a less democratic system of free elections,” Magarian said.

“President Biden, previously a longtime senator, has consistently resisted changes to the filibuster. He has now changed his position and decided to support the voting rights carve-out. The key question moving forward is whether he can persuade a handful of Senate Democrats who support the filibuster that voting rights are too important to leave to minority rule.”

“If a Democratic Senate majority carves out voting rights legislation from the filibuster today, a Republican majority in two years could carve out other subjects,” Magarian said.

“That being said, a future Senate majority could carve out other subjects if today’s majority carves out voting rights; but a future Senate majority could just as easily carve out other subjects if today’s majority doesn’t carve out voting rights,” he said. “The important question about any change to the filibuster is whether that change is right on its own terms.”

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