Hoyer calls filibuster unconstitutional in Time op-ed

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House Majority Leader Steny Hoyer (D-Md.) called the filibuster “unconstitutional” in a new op-ed published on Time on Wednesday.

Hoyer calls filibuster unconstitutional in Time op-ed
© Associated Press/J. Scott Applewhite Rep. Steny Hoyer

Hoyer claimed that there were only a few times in which the writers of the Constitution could see the need for “extraordinary majorities” – a reference to the 60 votes needed in the Senate to end debate on the majority of legislative pieces: Constitutional amendments, impeachment, approving treaties “negotiated by the executive” and overriding the president’s veto.

“However, the drafters of the Constitution discussed but did not include a provision for the passage of legislation to need more than a majority vote. Therefore, I believe the filibuster to be an unconstitutional requirement for more than a majority to pass legislation,” Hoyer claimed in his op-ed.

Hoyer called for the upper chamber to end Senate Rule 22, which was adopted in the late 1910s and referred to as the “cloture rule” which requires a filibuster to be broken with 60 votes.

“The premise that such a rule is necessary as some kind of check and balance fails to understand that good principle. It is the legislature that checks the executive, who checks the legislature by the veto, and Supreme Court who checks both on behalf of the Constitution and the minority,” Hoyer wrote.

“If the Senate Minority has veto power over the Senate Majority, our democracy is upside down, and there is real danger that Americans will conclude their democracy is broken,” the House Majority leader continued. “That has happened too often around the world. We must not let it happen here.”

Last week during a CNN town hall, President Biden said he would be open to changing or getting rid of the filibuster entirely and instead use a talking filibuster, which requires a senator to be in the chamber to vocally stop the legislation. However, he noted that trying to reignite momentum for the changing the legislative rule could jeopardize his ability to make inroads on some of his presidential priorities.

“If in fact I get myself into at this moment a debate on the filibuster, I lose at least three votes right now to get what I have to get done on the economic side of the equation, foreign policy side of the equation,” Biden said.

It is extremely unlikely that Democrats will be able to end the legislative rule given that it would require 60 votes, numbers that Democrats do not have as they barely hold a majority in the upper chamber.

Two Democrats – Sens. Joe Manchin (W.Va.) and Kyrsten Sinema (Ariz.) – have stated their opposition to getting rid of the rule, and Manchin has already explained he would not support a carve out to the rule earlier this month as Democrats scrambled to find the means to address the debt ceiling.

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