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Can Kamala Harris Kill the Filibuster?
Some experts believe the vice president has the power to declare the filibuster unconstitutional. Do Democrats have the will to try?
There’s some chatter that Kamala Harris can single-handedly declare the filibuster unconstitutional.
I don’t pretend to be a constitutional scholar, but I think it’s worth linking to sources where this concept has been floated.
Erwin Chemerinsky, Dean of the UC Berkeley School of Law, and Burt Neuborne, professor of civil liberties at NYU School of Law, write:
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.
Harris possesses the same power to rule that the current version of the Senate filibuster, which essentially establishes a 60-vote supermajority rule to enact legislation in the Senate, is unconstitutional because it denies states “equal Suffrage in the Senate” in violation of Article V of the Constitution.
Chicago labor lawyer Thomas Geoghegan argues that the “vice president has constitutional rights, too.”
In all the furor over the filibuster blocking voting rights legislation, keep in mind it is blocking Harris from this constitutional right, as well. The supermajority rule that ran counter to the Founders’ desires, now upheld by the filibuster’s status quo, is not just aiding in the disenfranchisement of voters by blocking meaningful voting rights legislation from passage—it’s also disenfranchising the woman sent to Washington to resolve the disputes of a divided Senate.
It would be fitting if Harris, given the chance to gavel the filibuster out of existence to pass the Freedom to Vote Act, reclaimed her rights at the same time.
Writer and editor Hayes Brown explores Geoghegan’s idea:
Harris should be ready and willing to use the powers she has to steer the Senate, if need be. I'm particularly taken with the idea that lawyer and author Thomas Geoghegan suggested in a 2010 New York Times op-ed: If the votes aren't there to change the rules, the vice president "could issue an opinion from the chair that the filibuster is unconstitutional."
It’s certainly an interesting concept, and if Democratic leaders really wanted to play hardball, they would pursue it. Will they? Unlikely.