Jake Tapper, ABC's Senior White House Correspondent, reported yesterday that momentum is building behind the effort to change the current United States Senate rules which authorize the use of the filibuster. The filibuster is a procedural device whose consequence is to require supermajority support in order to vote on a legislative proposal.
Some, notably Senator John Cornyn, have argued that the filibuster is inconsistent with the fundamental majoritarian premises of the American Constitution. Others, like constitutional law giants Erwin Chemerinsky and Catherine Fisk, have taken the contrary view that the filibuster serves an essential countermajoritarian function. Both of these points merit serious thought and discussion. But allow me to set those aside for the moment.
Let us instead ask another question: has the filibuster, which is only a rule of Senate procedure, hardened into a constitutional convention?
Conventions arise in many ways, most typically in the political arena, when political actors agree by accession, repeated use, or acquiescence to abide by a particular political practice. We learn from the influential British public law scholar, Joseph Jaconelli, that a constitutional convention is a social rule that prescribes standards of behavior, allocates power among the institutions of the state, and moreover controls the exercise of that power. Most importantly, though, a constitutional convention is both non-justiciable in the judicial forum and therefore subject to evolution or revision by the political process itself.
In one respect, the filibuster appears to meet the basic condition of a constitutional convention. First, it was birthed in, and has grown, from political practice. Second, it allocates and controls power. And, third, it governs how political institutions interact, both intra-institutionally and inter-institutionally.
On the other hand, the filibuster may not qualify as a constitutional convention because it emerges from nothing more than the rules of Senate procedure, and is therefore something that may be repealed or revised in the normal course of Senate business.
Neither of these perspectives resolves the question, certainly not conclusively nor even satisfactorily. And perhaps that is the point to discern from the very nature of a constitutional convention.
Constitutional conventions endure only as long as they are worth enduring. Conventions are creatures of politics, and survive only to the extent the political will exists to breathe continuing legitimacy into them. Conventions are at once durable and adaptable, and they stand simultaneously in law and politics.
And so perhaps it matters less whether the filibuster is indeed a constitutional rule than whether it continues to be deployed by political actors, and perceived by their constituents, as a legitimate political practice.