The Senate filibuster: The politics of obstruction

Harvard Journal on Legislation

Volumn 48, Issue 2, 2011, Pages 468-513

  Bondurant, Emmet J ^a  

^a UNIVERSITY OF GEORGIA   (United States)

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EID: 84858589330     PISSN: 0017808X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (440)

1. See Apportionment Data, U.S. CENSUS 2010, http://2010.census.gov/2010census/data/apportionment-data.php (last visited Mar. 6, 2011) (displaying population data by state). Based on the 2010 census, the twenty-one least populous states (represented by a total of forty-two senators) account for 34,922,038, or 11.3%, of the total United States population of 308,745,538.
2. Id.
3. See infra note 31.
4. Catherine Fisk & Erwin Chemerinsky, The Filibuster, 49 STAN. L. REV. 181, 188 (1997)
5. See also HENRY M. ROBERT, ROBERT'S RULES OF ORDER § 16, at 190-91 (Sarah C. Robert ed., 10th ed. 2000).
6. See infra note 21 and accompanying text.
7. See infra notes 22-24 and accompanying text. The first rules adopted in 1789 by the House of Representatives also allowed the majority to end debate by voting for the previous question. The House of Representatives has always had the previous question motion. From 1789 to 1880, it was in the same form as that provided by the early rules of the Senate, namely: 'Shall the main question now be put?'" 103 CONG. REC. 6677 (1957) (statement of Sen. Paul Douglas (D-Ill.))
8. See also CLERK OF THE HOUSE OF REP., 112TH CONG., RULES OF THE HOUSE OF REPRESENTATIVES R. XIX (2011) (describing history of the previous question motion), available at http://clerk.house.gov/legislative/house-rules.pdf.
9. S. COMM. ON RULES AND ADMIN., 111TH CONG., STANDING RULES OF THE SENATE Rs. VIII, XXII (2009) [hereinafter SENATE RULES].
10. Comm S. See id., R. VIII.
11. Comm S. Id. R. XXII. Rule XXII provides: 22.2 [a]t any time a motion signed by sixteen Senators, to bring to a close the debate upon any measure. is presented to the Senate, the Presiding Officer, or clerk at the direction of the Presiding Officer, shall at once state the motion to the Senate,. "Is it the sense of the Senate that the debate shall be brought to a close?" And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting then said measure. shall be the unfinished business to the exclusion of all other business until disposed of.
12. Comm S. Id.
13. Comm S. Id.
14. Comm S. Id.
15. See infra Part II.C; see, e.g., Robert Goodman & Jimmy Soni, How the Filibuster Wrecked the Roman Senate and Could Wreck Ours, THE ATLANTIC, Mar. 24, 2011, http://www.theatlantic.com/politics/archive/2011/03/how-the-filibuster-wrecked-the-roman-senateand-could-wreck-ours/72776.
16. Cf. John O. McGinnis & Michael Rappaport, The Judicial Filibuster, The Median Senator, and the Countermajoritarian Difficulty, 2005 SUP. CT. REV. 257, 282 (2005) (explaining that Senators will preserve the filibuster for self-interested reasons, in the context of judicial nominations).
17. See infra notes 246-257.
18. See infra notes 31-35 and accompanying text.
19. See infra notes 155-169 and accompanying text.
20. United States v. Ballin, 144 U.S. 1, 5 (1892).
21. See SENATE RULES, supra note 6, R. V.
22. See infra Part III.G.
23. See Ballin, 144 U.S. at 1.
24. 65 CONG. REC. 20 (1917) (statement of Pres. Woodrow Wilson).
25. JOHN V. SULLIVAN, H.R. DOC. NO. 108-241, CONSTITUTION, JEFFERSON'S MANUAL, AND RULES OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES, ONE HUNDRED NINTH CONGRESS, at 240-42 (2005)
26. Accord Martin B. Gold & Dimple Gupta, The Constitutional Option to Change Senate Rules and Procedures: A Majoritarian Means to Over Come the Filibuster, 28 HARV. J.L. & PUB. POL'Y 205, 214 (2004)
27. see also 151 CONG. REC. S5484 (daily ed. May 19, 2005) (statement of Sen. Robert Byrd (D-W. Va.)) (describing the history of the previous question as a rule of parliamentary procedure).
28. 11 JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789, at 534-35 (1908)
29. See also 103 CONG. REC. 6677 (1957) (statement of Sen. Paul Douglas).
30. The relevant rules were: Rule 10. While a question is before the House, no motion shall be received, unless for an amendment for the previous question, to postpone the consideration of the main question, or to commit it Rule 13. The previous question (that is, that the main question be not put) being moved, the question from the chair shall be, that those who are for the previous question say ay, and those against it, no; and if there be a majority of ayes, then the question shall not be put, but otherwise it shall.
31. JOURNALS OF THE CONTINENTAL CONGRESS, supra.
32. JOSEPH COOPER, THE PREVIOUS QUESTION: ITS STANDING AS A PRECEDENT FOR CLOTURE IN THE UNITED STATES SENATE, S. Doc. No. 87-104, at 4, 8-9, 9 n.31 (1962). "In the Continental Congress, where the previous question rule was put in negative form, a victory by the nays rather than the yeas constituted an affirmative determination of the previous question. Before 1780 a victory for the negative seems always to have resulted in an immediate vote on the main question." Id. at 9 n.31.
33. Richard R. Beeman, Unlimited Debate in the Senate: The First Phase, 88 POL. SCI. Q. 419, 420 (1968).
34. Richard R. Beeman, Id. Rules VIII and IX provided: VIII. While a question is before the Senate, no motion shall be received unless for an amendment, for the previous question, or for postponing the main question, or to commit it, or to adjourn.
35. IX. The previous question being moved and seconded, the question from the chair shall be: "Shall the main question now be put?" And if the nays prevail, the main question shall not then be put.
36. 1 ANNALS OF CONG. 20-21 (1789) (Joseph Gales ed., 1834).
37. See SULLIVAN, supra note 21, at 123-330 (2005). "The Manual is regarded by English parliamentarians as the best statement of what the law of Parliament was at the time Jefferson wrote it." Id. at 125 n.1.
38. Sullivan Id. at 240-41.
39. Bowsher v. Synar, 478 U.S. 714, 723-24 (1986)
40. Marsh v. Chambers, 463 U.S. 783, 790 (1983) (quoting Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 297 (1888)) ("Acts 'passed by the first Congress assembled under the Constitution, many of whose members had taken part in framing that instrument. is contemporaneous and weighty evidence of its true meaning.'")
41. Cf. Cook v. Gralike, 531 U.S. 510, 521 (2001) (giving weight to "the fact that the First Congress rejected a proposal to insert a right of the people to 'instruct their representatives' into what would become the First Amendment").
42. Irving Brant, Absurdities and Conflicts in Senate Rules are Outlined, WASH. POST, Jan. 2, 1957, reprinted in 103 CONG. REC. 17 (1957).
43. See 151 CONG. REC. S5485 (daily ed. May 19, 2005) (statement of Sen. Robert Byrd).
44. But see 107 CONG. REC. 242-56 (1961) (statement of Sen. Paul Douglas) (reporting, based on Irving Brant's research, that the previous question motion had been invoked only four times between 1789 and 1806)
45. 103 CONG. REC. 6669-88 (1957) (statement of Sen. Paul Douglas) (same).
46. 1 MEMOIRS OF JOHN QUINCY ADAMS 365 (Charles F. Adams ed., 1874).
47. Charles F. Id.
48. See id.
49. accord Gold & Gupta, supra note 21, at 215.
50. Gold & Gupta, supra note 21, at 215-16, 216 n.34. For the text of the current rule
51. See SENATE RULES, supra note 6, R. XXII.
52. Beeman, supra note 24, at 421
53. accord SARAH A. BINDER & STEPHEN S. SMITH, POLITICS OR PRINCIPLE? FILIBUSTERING IN THE UNITED STATES SENATE 33-34 (1997) ("In making the rule change in 1806 that made possible the filibuster. members of the original Senate expressed no commitment to a right of extended debate.")
54. See also 151 CONG. REC. S5485 (daily ed. May 19, 2005) (statement of Sen. Robert Byrd)
55. Gold & Gupta, supra note 21, at 215-16.
56. DEMOCRATIC STUDY GRP., DSG SPECIAL REPORT NO. 103-28, A LOOK AT THE SENATE FILIBUSTER 5 (1994) ("[T]he first time. an attempt was made to block a bill in the Senate through the use of unlimited debate (i.e., a filibuster) did not occur for another 35 years, until 1841.").
57. Gold & Gupta, supra note 21, at 216, suggest that the first filibuster may have occurred as early as 1837.
58. Examining the Filibuster: The Filibuster Today and Its Consequences: Hearing Before the S. Rules Comm., 111th Cong. 168-74 (2010) [hereinafter 2010 Filibuster Hearings] (statement of Norman J. Ornstein, American Enterprise Institute), available at http://www.aei.org/docLib/20100519-Ornstein-Testimony.pdf.
59. DEMOCRATIC STUDY GRP., supra note 36, app. B
60. See also CONG. RESEARCH SERV., S. PRT. 99-95, LIMITATION ON DEBATE IN THE CONGRESS OF THE UNITED STATES AND LEGISLA HISTORY OF PARAGRAPH 2 OF RULE XXII OF THE STANDING RULES OF THE UNITED STATES SENATE (CLOTURE RULE) 37 (1985) (listing "Outstanding Senate Filibusters From 1841 to 1984").
61. DEMOCRATIC STUDY GRP., supra note 36, at 6
62. Gold & Gupta, supra note 21, at 217-19.
63. 151 CONG. REC. S5485 (daily ed. May 19, 2005) (statement of Sen. Robert Byrd)
64. See also 2 ROBERT C. BYRD, THE SENATE 1789-1989: ADDRESSES ON THE HISTORY OF THE UNITED STATES SENATE 122-23 (Wendy Wolf ed., 1991)
65. Joyce Appleby, The Founders Cared About the Majority Principle, HISTORY NEWS NETWORK (Jan. 17, 2011), http://hnn.us/articles/135436.html.
66. BYRD, supra note 40, at 122.
67. Brant, supra note 29, at 17 ("In 1917, to check filibusters, a 'cloture' rule was adopted.")
68. see also 3 ROBERT A. CARO, THE YEARS OF LYNDON JOHNSON: MASTER OF THE SENATE 93 (2002) ("The rule was drafted by a bipartisan committee 'whose stated purpose was to terminate filibustering. but the Committee made a mistake. leaving a loophole.'")
69. Robert A.C. id. at 216-17 (citing a ruling rendered by Arthur Vandenberg as president pro tempore of the Senate in 1948 that the "Loop holes in Rule 22" meant "that while cloture could be applied to debate on a bill that was already on the floor, it could not be applied to debate on a motion to bring a bill to the floor (a ruling which. made the threat of cloture almost totally ineffective)").
70. I.e., two-thirds of a quorum, which could be as few as forty-nine out of a total of ninetysix senators.
71. CONG. RESEARCH SERV., supra note 38, at 105-12
72. see 151 CONG. REC. S5485 (daily ed. May 19, 2005) (statement of Sen. Robert Byrd).
73. Fisk & Chemerinsky, supra note 3, at 198.
74. Fisk & Chemerinsky, Id. at 198-99.
75. CONG. RESEARCH SERV., supra note 38, at 104 (Legislative History of Paragraph 2 of Rule XXII)
76. see 151 CONG. REC. S5485 (daily ed. May 19, 2005) (statement of Sen. Robert Byrd)
77. Fisk & Chemerinsky, supra note 3, at 209-10.
78. Fisk & Chemerinsky, supra note 3, at 210.
79. CARO, supra note 42, at 217-18.
80. CONG. RESEARCH SERV., supra note 38, at 111.
81. U.S. CONST. art. I, § 5, cl. 2
82. SULLIVAN, supra note 21, at 25 (2007) (noting that the House is not bound by rules of a previous House of Representatives, though it may incorporate prior House rules by reference when adopting rules for each session).
83. 103 CONG. REC. 178 (1957).
84. Sullivan Id.
85. see also CARO, supra note 42, at 854-58.
86. Fisk & Chemerinsky, supra note 3, at 212.
87. CARO N, supra note 42, at 854-58.
88. Gold & Gupta, supra note 21, at 231. For the rule in its current form
89. see SENATE RULES, supra note 6, R. V.
90. SENATE RULES, supra note 6, R. V.
91. Fisk & Chemerinsky, supra note 3, at 212-13.
92. Fisk & Chemerinsky, Id. at 213.
93. See id.
94. CONG. RESEARCH SERV., supra note 38, at 119-21
95. 2010 Filibuster Hearings, supra note 37 (statement of Walter F. Mondale, Dorsey & Whitney LLP).
96. U.S. CONST. art. V.
97. Fisk & Chemerinsky, supra note 3, at 191.
98. Fisk & Chemerinsky, Id.
99. See also CONG. RESEARCH SERV., supra note 38, at 12.
100. See CONG. RESEARCH SERV., supra note 38, at 11-35
101. FLOYD M. RIDDICK, SENATE PARLIAMENTARIAN ORAL HISTORY INTERVIEWS 122-220 (1978), available at http://www.senate.gov/artandhistory/history/resources/pdf/Riddick_interview_4.pdf
102. see also John Cornyn, Our Broken Judicial Confirmation Process and the Need for Filibuster Reform, 27 HARV. J.L. & PUB. POL'Y 181, 212 (2003) ("The Senate has previously considered at least thirty proposals to eliminate filibusters altogether.").
103. 141 CONG. REC. 430 (1995).
104. S. RES. 416, 111th Cong. (2011).
105. Paul Kane, Reid Nixes Filibuster Reform Effort, WASH. POST (Feb. 12, 2010), http://voices.washingtonpost.com/44/2010/02/reid-nixes-filibuster-reform-e.html.
106. See 157 CONG. REC. S19-67 (daily ed. Jan. 5, 2011)
107. 157 CONG. REC. S85-99, S244-46 (daily ed. Jan. 25, 2011)
108. 157 CONG. REC. S265 (daily ed. Jan. 26, 2011)
109. 157 CONG. REC. S296-329 (daily ed. Jan. 27, 2011).
110. Senate Action on Cloture Motions, U.S. SENATE, http://www.senate.gov/pagelayout/reference/cloture_motions/clotureCounts.htm (last visited Mar. 13, 2011).
111. Faiz Shakir, et al., Democracy Subverted-The Progress Report, THE CENTER FOR AM. PROGRESS (Jan. 25, 2010), http://pr.thinkprogress.org/2010/01/pr20100125.
112. The number of cloture motions drastically understates the actual impact of Rule XXII on the legislative process, due to the "stealth filibuster." For further discussion
113. see infra notes 75-77.
114. See 2010 Filibuster Hearings, supra note 35 (statement of Sen. Charles E. Schumer, Chairman, S. Rules Comm.).
115. Data are from Senate Action on Cloture Motions, U.S. SENATE, http://www.senate.gov/pagelayout/reference/cloture_motions/clotureCounts.htm (last visited Mar. 13, 2011).
116. Fisk & Chemerinsky, supra note 3, at 203. A credible threat that forty-one senators will refuse to vote for cloture. is enough to keep a bill off the floor. The Senate leadership simply delays consideration of a bill until it has the sixty votes necessary for cloture [T]he stealth filibuster eliminates the distinction between a filibuster and a threat to filibuster; any credible threat to filibuster is a filibuster. and is largely silent [and] invisible.
117. Fisk & Chemerinsky, Id.
118. Fisk & Chemerinsky, Id. at 213.
119. Fisk & Chemerinsky, Id. at 215.
120. See 2010 Filibuster Hearings, supra note 37 ("The sharp increase in cloture motions reflects the routinized use of the filibuster. as a weapon to delay and obstruct in nearly all matters. as the minority has moved to erect a filibuster bar.").
121. See Goodman & Soni, supra note 11.
122. See David Frum, Blame Yesterday's Reforms for Today's Gridlocked Congress, CNN.COM, Mar. 1, 2010, http://articles.cnn.com/2010-03-01/opinion/frum.smoke.filled.congress_1_filibustering-congress-welfare-reform?_s=PM:OPINION.
123. U.S. CONST. art. I, § 5.
124. U.S. CONST. art. I, § 7, cl. 2.
125. U.S. CONST. art. I, § 7, cl. 3.
126. See U.S. CONST. art. I, § 3, cl. 6 (impeachment).
127. See ARTICLES OF CONFEDERATION of 1781, art. IX, cl. 6.
128. THE FEDERALIST NO. 58, at 397 (James Madison) (Jacob E. Cooke ed., 1961)
129. see also THE FEDERALIST NO. 22, at 140-41 (Alexander Hamilton) (Jacob E. Cooke ed., 1961)
130. THE FEDERALIST NO. 75, at 507-08 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).
131. THE FEDERALIST NO. 22, at 141 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).
132. Fisk, Chemerinsky, Id. at 140.
133. U.S. CONST. art. I, § 5, cl. 2.
134. See John C. Roberts, Majority Voting in Congress: Further Notes on the Constitutionality of the Senate Cloture Rule, 20 J.L. & POL. 505, 533, 535-37 (2004) (explaining why the Rulemaking Clause gives both houses continuous rulemaking power, and does not authorize the binding of future houses through a rule that requires a supermajority vote for any change in the rules)
135. see also Cornyn, supra note 65, at 204.
136. Just as one Congress cannot enact a law that a subsequent Congress could not amend by majority vote, the Senate cannot enact a rule that a subsequent Senate could not amend by majority vote Such power would arguably offend the U.S. Constitution because it would be tantamount to amending the Constitution by a majority vote of [one house of] Congress.
137. Cornyn, supra note 65, at 204.
138. Cf. U.S. Term Limits v. Thornton, 514 U.S. 779, 833-34 (1995)
139. Cook v. Gralike, 531 U.S. 510, 523 (2001) (holding that the power delegated to states by Article I, Section 4, Clause
140. 1 to prescribe the manner of elections of members of Congress was limited to the establishment of procedural regulations and not to dictating the outcomes of elections).
141. United States v. Ballin, 144 U.S. 1, 5 (1892).
142. Cf. INS v. Chadha, 462 U.S. 919, 951 (1983) (striking down as unconstitutional a onehouse legislative veto, partially on the grounds that it was inconsistent with the Constitution's "finely wrought" and "exhaustively considered" legislative process).
143. U.S. CONST. art. I, § 3, cl. 1 (providing for two Senators from each state)
144. U.S. CONST. art. V (providing that "no State, without its Consent, shall be deprived of its equal Suffrage in the Senate").
145. U.S. CONST. art. I, § 5.
146. U.S. CONST. art. I, § 7, cl. 2.
147. U.S. CONST. art. I, § 7, cl. 3.
148. The common law rule of construction, expressio unius est exclusion alterius, was discussed by John Dickinson of Delaware during the Federal Convention, 2 FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 123 (Max Farrand rev. ed., 1937) and was quoted in Powell v. McCormack, 395 U.S. 486, 532-33 (1969).
149. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803)
150. see also U.S. CONST. amend. IX ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.").
151. U.S. CONST. art. II, § 1.
152. See U.S. CONST. art. I, § 3, cl. 4 ("The Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided.")
153. U.S. CONST. art. I, § 5, cl. 2.
154. United States v. Ballin, 144 U.S. 1, 5 (1892) ("The Constitution empowers each house to determine its rules of proceedings. [but i]t may not by its rules ignore constitutional restraints").
155. U.S. CONST. art. II, § 2, cl. 2.
156. U.S. CONST. art. I, § 3, cl. 5.
157. Ballin, Id. at 5. The Court has repeatedly applied this principle to invalidate a wide range of legislative actions that were based on other provisions of the Constitution that are at least as broad as the delegation of rulemaking power in Article I, Section 5.
158. See Clinton v. City of New York, 524 U.S. 417 (1998) (holding that Congress could not use its legislative power to delegate a line-item veto power to the President)
159. INS v. Chadha, 462 U.S. 919 (1983) (holding that Congress could not use its power in Article I, Section 8, Clause 4 to establish uniform laws of naturalization to justify a one-house veto over an INS decision because doing so violated the Presentment Clause in Article I, Section 7)
160. Powell v. McCormack, 395 U.S. 486 (1969) (holding that the House could not use the power granted by Article I, Section 5, Clause 1 to judge the qualifications of its members to add an additional qualification to the exclusive list of qualifications in Article I, Section 2, Clause 2)
161. see also Cook v. Gralike, 531 U.S. 510 (2001)
162. U.S. Term Limits v. Thornton, 514 U.S. 779 (1995).
163. Vander Jagt v. O'Neill, 699 F.2d 1166, 1170 (D.C. Cir. 1983) (quoting Ballin, 144 U.S. at 6)
164. see also Michel v. Anderson, 14 F.3d 623, 627 (D.C. Cir. 1994) ("There are limitations to the House's rulemaking power, and Art. I, § 2 is such a limit.").
165. U.S. CONST. art. I, § 4.
166. U.S. Term Limits, 514 U.S. at 833-34 (emphasis added)
167. Cook, 531 U.S. at 523.
168. INS v. Chadha, 462 U.S. 919, 951 (1983).
169. U.S. CONST. art. I, § 3, cl. 1
170. see also JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION ch. IV (1996).
171. New Hampshire, Rhode Island, Connecticut, New Jersey, Delaware, South Carolina, and Georgia were the seven least populous states and contained a total population of 1,023,510.
172. See 1790 Census of Population and Housing, U.S. CENSUS BUREAU, http://www.census.gov/prod/www/abs/decennial/1790.html. (last visited Mar. 28, 2011). Although listed separately in the 1790 census, id., Maine and Kentucky were part of Massachusetts and Virginia, respectively, in 1790, and Vermont was not yet a state. Not counting Vermont's population, then, the total population of the thirteen states was 3,808,096 in 1790. Id. Thus, the seven least populous states represented only 27% of the population. Id.
173. See U.S. CONST. art. V.
174. See Ranking Tables for States: 1990 and 2000, U.S. CENSUS BUREAU, http://www.census.gov/population/www/cen2000/briefs/phc-t2/tables/tab01.pdf (last visited Mar. 20, 2011).
175. U.S. CONST. art V, § 1.
176. ARTICLES OF CONFEDERATION of 1781, art. I.
177. ARTICLES OF CONFEDERATION of 1781, art. V.
178. ARTICLES OF CONFEDERATION of 1781, art. IX, cl. 6.
179. Jack N.R. Id.
180. U.S. CONST. art. I, § 5.
181. U.S. CONST. art. I, § 7, cl. 2, 3.
182. See THE FEDERALIST NOS. 22, 75 (Alexander Hamilton) (Jacob E. Cooke ed., 1961)
183. THE FEDERALIST NO. 58 (James Madison) (Jacob E. Cooke ed., 1961).
184. 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 140-41 (Max Farrand rev. ed., 1937) [hereinafter 2 RECORDS].
185. Jack N.R. Id. at 141, 155, 165 (July 24-26, 1787)
186. Jack N.R. id. at 180 (Aug. 6).
187. Jack N.R. Id. at 251.
188. Jack N.R. Id. at 244, 253.
189. Jack N.R. Id. at 305.
190. Jack N.R. Id.
191. Jack N.R. Id. at 549.
192. Jack N.R. Id.
193. Jack N.R. Id. at 592, 648.
194. Chief Judge Harry Edwards summarized much of this history from the Federal Convention in his dissenting opinion in Skaggs v. Carle, 110 F.3d 831, 841-42 (D.C. Cir. 1997) (Edwards, C.J., dissenting).
195. THE FEDERALIST No. 58, at 396 (James Madison) (Jacob E. Cooke ed., 1961).
196. Carle, Skaggs Id. at 396-97 (emphasis added). The notorious "Cornhusker Kickback" and "Louisiana Purchase" concessions are but two recent examples of "unreasonable indulgences" extorted by Senators Ben Nelson of Nebraska and Mary Landrieu of Louisiana as the price of their votes for cloture on the health care debate.
197. See Dana Milbank, On Health-Care Bill, Democratic Senators are in States of Denial, WASH. POST, Dec. 22, 2009, at A2. The "hold" placed by Senator Richard Shelby on "at least 70" presidential nominees to secure a defense contract for a company in Alabama is yet another recent example of the use of Rule XXII by a member of the Senate to "extort unreasonable indulgences."
198. Scott Wilson & Shailagh Murray, Sen. Richard Shelby of Alabama Holding Up Obama Nominees for Home-State Pork, WASH. POST, Feb. 6, 2010, at A3.
199. United States v. Ballin, 144 U.S. 1, 5-6 (1892).
200. See infra Part III.D.1.
201. THE FEDERALIST NO. 58, at 397 (James Madison) (Jacob E. Cooke ed., 1961).
202. U.S. CONST. art. I, § 7.
203. INS v. Chadha, 462 U.S. 919, 951 (1983).
204. Jed Rubenfeld, Rights of Passage: Majority Rule in Congress, 46 DUKE L.J. 73, 78-79 (1996) (quoting Chadha, 462 U.S. at 951).
205. See Michael J. Gerhardt, The Constitutionality of the Filibuster, 21 CONST. COMMENT. 445, 457 (2004) ("No language within the Constitution expressly mandates majority rule in the Senate.")
206. John O. McGinnis N & Michael Rappaport, The Constitutionality of Legislative Supermajority Requirements: A Defense, 105 YALE L.J. 483, 486 (1995).
207. Ballin, 144 U.S. at 6.
208. See infra Part III.D.2.
209. See infra Part III.D.3.
210. See infra Part III.D.4.
211. Ballin, 144 U.S. at 6
212. see also Rubenfeld, supra note 138, at 77 (citing Thomas Jefferson, Notes on the State of Virginia, in 2 THE WRITINGS OF THOMAS JEFFERSON 1, 172 (1905)
213. Thomas Jefferson, A Manual of Parliamentary Practice, in 2 THE WRITINGS OF THOMAS JEFFERSON 335, § XLI at 420-21 (1905)) ("Majority rule was, moreover, the established practice of the British Parliament and was regarded as the 'natural' rule for all assemblies. Thus, at least where no contrary rule was specified, those who ratified the Constitution would certainly have understood 'passed' to mean 'passed by majority vote.' ")
214. Skaggs v. Carle, 110 F.3d 831, 841 (D.C. Cir. 1997) (Edwards, C.J., dissenting) ("The general rule governing parliamentary procedure at the time of the constitutional convention, which still holds true today, was that the act of a majority of a quorum is the act of the body. The presumption of parliamentary procedure therefore was a presumption of majority rule.").
215. Ballin, 144 U.S. at 6. The Court's view of "the general rule of all parliamentary bodies," dating to before the adoption of the Constitution, was correct.
216. See, e.g., WILLIAM HAKEWILL, MODUS TENENDI PARLIAMENTUM [THE OLD MANNER OF HOLDING PARLIAMENTS IN ENGLAND] 93 (Abel Roper ed., 1671).
217. In the Parliament, if the greater part of the knights of the Shire do assent to the making of an Act of Parliament, and the lesser part will not agree to it, yet this is a good Act or Statute to last in perpetuum: and that the Law of majoris parties is so in all Counsels, Elections & C. Both by the rules of the Common law and the Civil."
218. William H. Id.
219. see also GEORGE PETYT, LEX PARLIAMENTARIA [A TREATISE OF THE LAW AND CUSTOM OF THE PARLIAMENTS OF ENGLAND] 165 (1689).
220. Ballin, 144 U.S. at 6. Ballin remains good law. In 1967, the Supreme Court squarely relied on Ballin in determining that a simple majority of a quorum of the Federal Trade Commission could exercise the Commission's power based on "the almost universally accepted common-law rule. that. in the absence of a contrary statutory provision, a majority of a quorum. is empowered to act for the body."
221. FTC v. Flotill Prods., Inc., 389 U.S. 179, 183-84 (1967) (internal citations omitted).
222. U.S. CONST. art. I, § 7, cl. 2 (emphasis added).
223. Ballin, Id.
224. See, e.g., United States v. Sprague, 282 U.S. 716, 731 (1931) ("The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning").
225. Rubenfeld, supra note 138, at 77.
226. See U.S. CONST. art. I, § 7, cl. 2 (requiring a two-thirds vote to override a presidential veto).
227. 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 8 (Max Farrand ed., 1911) [hereinafter 1 RECORDS].
228. Rubenfeld, supra note 138, at 74.
229. As explained in Part III.E, infra, except for the power of Congress in Article I, Section 7 to override a presidential veto of legislation by a two-thirds vote, none of the other instances in which the Constitution prohibited one or both houses of Congress from acting without a two-thirds vote involved legislation. They instead involved other actions of an unusual nature and such special importance that the Framers felt they should not be decided by a simple majority vote-e.g., the expulsion of a member of Congress, ratification of a treaty, the conviction of a president or other officers after an impeachment by the House, or proposals to amend the Constitution.
230. 2 RECORDS, supra note 122, at 449-50 (Madison, August 29, 1787).
231. Rubenfeld Id. at 449-51.
232. Rubenfeld Id. at 143 (Report of Committee of Detail IV)
233. Rubenfeld id. at 169 (Report of Committee of Detail IX
234. Rubenfeld id. at 183 (Madison, August 6, 1787).
235. Rubenfeld Id. at 366 (Madison). The Committee had only eleven members because Rhode Island did not participate in the convention and New Hampshire's delegates had not yet arrived.
236. Rubenfeld See id.
237. Rubenfeld Id. at 449 (Madison).
238. Rubenfeld Id. at 449 (Madison, August 29, 1787).
239. Rubenfeld Id.
240. Rubenfeld Id.
241. Rubenfeld Id.
242. Rubenfeld Id.
243. Rubenfeld Id. at 450.
244. Rubenfeld Id. at 453
245. See IRVING BRANT, JAMES MADISON, FATHER OF THE CONSTITUTION 1787-1800, at 122-25 (1950).
246. 2 RECORDS, supra note 122, at 631.
247. IRVING BRANT Id. at 631, 640 (emphasis added).
248. IRVING BRANT Id. at 631.
249. John Bryan Williams, How to Survive a Terrorist Attack: The Constitution's Majority Quorum Requirement and the Continuity of Congress, 48 WM. & MARY L. REV. 1025, 1041-42 (2006).
250. THE FEDERALIST NO. 22, at 140-41 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).
251. THE FEDERALIST NO. 75, at 507-08 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).
252. 2 RECORDS, supra note 122, at 254.
253. U.S. CONST. art. I, § 7, cls. 2-3.
254. U.S. CONST. art. I, § 3, cl. 6.
255. U.S. CONST. art. I, § 5, cl. 2.
256. In addition to these six exceptions to the principle of majority rule in the original Constitution, there are two other specific exceptions in which a two-thirds vote, and not a majority vote, is required by amendment. U.S. CONST. amend. XIV, § 3 (two-thirds vote of each house to remove the ban against former Confederate soldiers from running for federal office)
257. U.S. CONST. amend. XXV, § 4 (two-thirds vote of each house required to determine that the president is physically or mentally incapable of discharging the duties of office).
258. 2 RECORDS, supra note 122, at 254 (footnote omitted) (Madison, August 10, 1787).
259. Williams J.B. Id. at 557-58.
260. Williams J.B. Id. at 559.
261. 1 RECORDS, supra note 152, at 85.
262. 2 RECORDS, supra note 122, at 497, 547.
263. Williams J.B. Id. at 540, 548.
264. 2 RECORDS, supra note 122, at 123.
265. 395 U.S. 486 (1969).
266. 514 U.S. 779 (1995).
267. 2 RECORDS, supra note 122, at 123.
268. See Powell, 395 U.S. at 532-47 (1969) (discussing the Framers' intent regarding the ability of either house to add to the listed qualifications).
269. See U.S. Term Limits, 514 U.S. at 783-93 (1995) (discussing the Framers' intent regarding the ability of the states to add to the listed qualifications).
270. U.S. CONST. amend. IX.
271. See, e.g., Clinton v. City of New York, 524 U.S. 417, 439-40 (1998)
272. U.S. Term Limits, 514 U.S. at 792-93
273. INS v. Chadha, 462 U.S. 919, 956-21 (1983)
274. Powell, 395 U.S. at 550
275. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803).
276. 5 U.S. (1 Cranch) at 174.
277. Madison, Marbury Id.
278. Madison, Marbury Id.
279. Powell, 395 U.S. at 532-33, 550.
280. Madison, Marbury, Id. at 550.
281. Madison, Marbury, Id. at 536, 550. The Court later reaffirmed this holding in U.S. Term Limits v. Thornton, 514 U.S. 779 (1995).
282. 524 U.S. 417, 439-40 (1998).
283. U.S. CONST. art. I, § 7, cls. 2-3.
284. Clinton v. City of New York, 524 U.S. 417, 439 (1998).
285. Clinton, Id. at 448-49.
286. U.S. CONST. art. I, § 3, cl. 4.
287. CAFTA Voting Irregularities, DEMOCRACY NOW!, http://www.democracynow.org/2005/7/29/cafta_voting_irregularities (last visited Mar. 13, 2011).
288. It also effectively deprives the Vice President of one of only two powers granted to the office by the Constitution.
289. SENATE RULES, supra note 6, R. V.
290. Clinton, Id. Rs. VIII, XXII.
291. Clinton, Id. R. XXII, at 16.
292. See generally Roberts, supra note 90. While addressing this topic is not necessary to find that the filibuster is unconstitutional, the fact that pending legislation in the Senate dies at the end of each term suggests that the Senate is not a continuing body.
293. See FLOYD RIDDICK, THE UNITED STATES CONGRESS: ORGANIZATION AND PROCEDURE 56 (1949) (stating that proposed but unenacted legislation dies "when a Congress adjourns its last session").
294. See, e.g., 1 WILLIAM BLACKSTONE, COMMENTARIES *90 ("Acts of parliament derogatory from the power of subsequent parliaments bind not Because the [subsequent] legisla-ture being in truth the sovereign power, is always equal [to its predecessors].").
295. Note that the filibuster rule binds future Congresses not even by a statute subject to bicameralism and presentment, but by rules promulgated by only one of the two houses.
296. See U.S. CONST. art. V.
297. Ohio Life Ins. & Trust Co. v. Debolt, 57 U.S. (16 How.) 416, 431 (1853)
298. See also Conn. Mut. Life Ins. Co. v. Spratley, 172 U.S. 602, 621 (1899) ("[E]ach subsequent legislature has equal power to legislate upon the same subject. The legislature has power at any time to repeal or modify [an] act.")
299. Newton v. Comm'rs, 100 U.S. 548, 559 (1880) ("Every succeeding legislature possesses the same jurisdiction and power. as its predecessors. The latter have the same power of repeal and modification which the former had of enactment, neither more nor less.").
300. Fisk & Chemerinsky, supra note 3, at 248-50
301. See also John C. Roberts & Erwin Chemerinsky, Entrenchment of Ordinary Legislation: A Reply to Professors Posner and Vermeule, 91 CALIF. L. REV. 1773 (2003)
302. Roberts, supra note 90, at 507 ("[I]f the Cloture Rule were binding in some legal sense on a simple majority of senators, it would be unconstitutional. [based] on the Constitution's inherent majority voting rule for enactment purposes, on the Rule Making Clause in Article I, Section 5, and on the anti-entrenchment principle.").
303. See Roberts, supra note 90, at 540-47.
304. Other potential plaintiffs include members of the House who voted for a bill that was filibustered in the Senate, or the Vice-President, after being deprived of his ability to cast a tiebreaking vote.
305. See Skaggs v. Carle, 110 F.3d 831, 834 (D.C. Cir. 1997)
306. Michel v. Anderson, 14 F.3d 623, 625 (D.C. Cir. 1994) (House members had standing to challenge dilution of their voting power)
307. Barnes v. Kline, 759 F.2d 21, 25-30 (D.C. Cir. 1985), vacated as moot, 479 U.S. 361 (1987) (House members had standing to challenge nullification of their votes by illegal pocket veto)
308. Vander Jagt v. O'Neill, 699 F.2d 1166, 1168-71 (D.C. Cir. 1983) (member of House had standing to challenge committee appointments that diluted political power)
309. Riegle v. Fed. Open Mkt. Comm., 656 F.2d 873, 877-79 (D.C. Cir. 1981) (Senator had standing to challenge the denial of his right to vote on appointment of members of the Federal Reserve Board)
310. Goldwater v. Carter, 617 F.2d 697 (D.C. Cir. 1979)
311. vacated on other grounds, 444 U.S. 996 (1979) (Senator had standing to challenge the nullification of a treaty by the president that was alleged to have denied senators of their right to vote)
312. Kennedy v. Sampson, 511 F.2d 430, 433-36 (D.C. Cir. 1974) (Senator had standing to challenge nullification of his vote by an unauthorized pocket veto)
313. cf. Coleman v. Miller, 307 U.S. 433, 438 (1939) ("We think that these [state] senators have a plain, direct and adequate interest in maintaining the effectiveness of their votes.").
314. 307 U.S. 433 (1939).
315. Kennedy v. Sampson, Id. at 435-36.
316. Coleman stands. for the proposition that legislators whose votes would have been sufficient to defeat (or enact) a specific legislative act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified.
317. Raines v. Byrd, 521 U.S. 811, 823 (1997).
318. 14 F.3d 623 (D.C. Cir. 1994).
319. Kennedy v. Sampson Id. at 625.
320. 699 F.2d 1166, cert. denied, 464 U.S. 828 (1983).
321. Michel, 14 F.3d at 625-26.
322. 110 F.3d 831 (D.C. Cir. 1997).
323. Michel Id. at 833, 837.
324. Michel Id. at 834. Admittedly, the continuing validity of this portion of the ruling in Skaggs was called into question by the Supreme Court's decision in Raines v. Byrd, 521 U.S. 811 (1997). In Raines, the Supreme Court held that Senator Robert Byrd did not have standing to challenge the constitutionality of the Line Item Veto Act, which granted the president the power to "cause certain line items in revenue bills to be cancelled" because, among other reasons, Senator Byrd and the other plaintiff senators had "not alleged that they voted for a specific bill, that there were sufficient votes to pass the bill, and that the bill was nonetheless deemed defeated."
325. Michel Id. at 824. But, the Court implied that if the senators had alleged that their votes in favor of a particular appropriation had been nullified by a line item veto, they would have had standing.
326. See Campbell v. Clinton, 203 F.3d 19, 22 (D.C. Cir. 2000) (citing Raines, 521 U.S. at 824) ("[T]he Court emphasized [in Raines] that the Congressmen were not asserting that their votes had been completely nullified.").
327. The plaintiffs' complaint in Raines was that the Act allowed the president to veto part of a bill rather than the whole bill as required by the Presentment Clause.
328. See Raines, 521 U.S. at 816. The Court ruled that the plaintiffs could avoid their injury because, "[i]n the future, a majority of senators and congressmen can pass or reject appropriations bills; the Act has no effect on this process. In addition, a majority of senators and members of Congress can vote to repeal the Act, or to exempt a given appropriations bill [from this process]."
329. Michel Id. at 824
330. see also id. at 829 (explaining that "Members of Congress [have]. an adequate remedy since they may repeal the Act or exempt appropriations bills from its reach" by a simple majority vote).
331. See Skaggs, 110 F.3d at 834.
332. Michel, Id. at 834-35.
333. Michel, Id. at 835.
334. Michel, Id.
335. Michel, Id.
336. Michel, Id.
337. Michel, Id. at 834-36
338. see also Raines v. Byrd, 521 U.S. 811, 824 (1997) (emphasis added) (explaining that members of Congress cannot "allege that the [Line Item Veto] Act will nullify their votes [on appropriations bills] in the future [because]. a majority of senators and congressmen can pass or reject appropriations bills. [and] can vote to repeal the Act, or to exempt a given appropriations bill" from the Act).
339. See Skaggs, 521 U.S. at 838-41 (Edwards, C.J., dissenting) (arguing in dissent that voters have standing to bring constitutional challenges to House rules).
340. 14 F.3d 623, 626 (D.C. Cir. 1994).
341. See id. ("[P]reviously they had a right to elect a representative who cast one of 435 votes, whereas now, their vote elects a representative whose vote is worth only one in 440."). The territorial delegates represented Puerto Rico, Guam, the Virgin Islands, American Samoa, and the District of Columbia.
342. Raines, Id. at 624.
343. Raines, Id.
344. 995 F. Supp. 23 (D.D.C. 1998), aff'd, 172 F.3d 920 (D.C. Cir. 1998).
345. Raines, Id. at 27.
346. Raines, Id. at 28.
347. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 575 (1992).
348. 524 U.S. 417 (1998).
349. Raines, Id. at 449
350. see also Bowsher v. Synar, 478 U.S. 714, 721 (1986) (finding standing on similar grounds).
351. A bill that received less than fifty votes in the Senate would fail the "causation" requirement of Article III standing, because, even without the filibuster rule, it would not have passed in the Senate.
352. See Lujan, 504 U.S. at 560.
353. In Lujan, the Court held that to establish Article III standing, the injury must be one that is capable of being "redressed by a favorable decision." Lujan, 504 U.S. at 560. The injuries described above are fully capable of being "redressed" by the entry of a declaratory judgment finding the supermajority vote requirement in Rule XXII unconstitutional. The only relief required is a declaratory judgment declaring unconstitutional those portions of Rule XXII that require (a) sixty votes to pass motions for cloture on motions, bills, and presidential nominations
354. and (b) a two-thirds vote in the case of amendments to Senate rules. A court could simply sever the unconstitutional portions of Rule XXII from the remainder of the rule. A court would not, as one court has suggested in dicta, be required to "rewrite the Senate rules."
355. Page v. Shelby, 995 F. Supp. 23, 29 (D.D.C. 1998), aff'd, 172 F.3d 920 (D.C. Cir. 1998)
356. see, e.g., Powell v. McCormack, 395 U.S. 486, 517-18 (1969) (suggesting that when a party only seeks a declaratory judgment, judicial relief is generally appropriate).
357. Nixon v. United States, 506 U.S. 224, 228 (1993) (quoting Baker v. Carr, 369 U.S. 186, 217 (1962)).
358. 5 U.S. (1 Cranch) 137 (1803).
359. Raines, Id.
360. Kilbourn v. Thompson, 103 U.S. 168 (1881).
361. United States v. Ballin, 144 U.S. 1 (1892).
362. Wesberry v. Sanders, 376 U.S. 1 (1964).
363. Powell v. McCormack, 395 U.S. 486, 514-16 (1969).
364. INS v. Chadha, 462 U.S. 919 (1983).
365. Bowsher v. Synar, 478 U.S. 714, 715-16 (1986).
366. United States v. Munoz-Flores, 495 U.S. 385 (1990).
367. Dep't. of Commerce v. Montana, 503 U.S. 442, 456-59 (1992).
368. U.S. Term Limits v. Thornton, 514 U.S. 779, 808 (1995).
369. Clinton v. City of New York, 524 U.S. 417 (1998).
370. 462 U.S. 919, 942-43 (1983).
371. Clinton, Id.
372. Clinton, Id. (quoting Baker v. Carr, 369 U.S. 186, 217 (1962)).
373. 395 U.S. 486 (1969).
374. Clinton, Id. at 548-49.
375. Clinton, Id.
376. 495 U.S. 385 (1990).
377. Clinton, Id. at 392
378. see also U.S. CONST. art. I, § 7, cl. 1.
379. 495 U.S. at 392.
380. Clinton, Id. at 393.
381. U.S. CONST. art. I, § 5, cl. 2.
382. See, e.g., Gerhardt, supra note 139, at 450-51
383. McGinnis & Rappaport, supra note 139, at 485-86.
384. U.S. CONST. art. I, § 4, cl. 1.
385. See Cook v. Gralike, 531 U.S. 510, 511, 523 (2005) (citing U.S. Term Limits v. Thornton, 514 U.S. 779, 833-34 (1995)).
386. 144 U.S. at 5 (emphasis added)
387. see also Vander Jagt v. O'Neill, 699 F.2d 1166, 1170 (D.C. Cir. 1983) (relying on Ballin and explaining that "if Congress should adopt internal procedures which 'ignore constitutional restraints or violate fundamental rights,' it is clear that we must provide remedial action").
388. Ballin, 144 U.S. at 5.
389. 462 U.S. 919 (1983).
390. Clinton, Id. at 940-41.
391. Clinton, Id. at 940.
392. Clinton, Id.
393. Clinton, Id. at 941.
394. See, e.g., Cook v. Gralike, 531 U.S. 510, 522-27 (2005)
395. Clinton v. City of New York, 524 U.S. 417, 448-49 (1998)
396. U.S. Term Limits v. Thornton, 514 U.S. 779, 837-38 (1995)
397. Powell v. McCormack, 395 U.S. 486, 550 (1969).
398. See supra notes 119-130 and accompanying text.
399. See supra notes 154-169 and accompanying text.
400. See supra notes 154-169 and accompanying text.
401. 2 RECORDS, supra note 122, at 451.
402. U.S. CONST. art. I, § 1.
403. U.S. CONST. art. I, § 3, cl. 1, art. V.
404. U.S. CONST. art. I, § 2, cl. 3.
405. See U.S. CONST. art. II, § 1, cls. 2-3.
406. See Fisk & Chemerinsky, supra note 3, at 240 (conceding that the "textual argument is strong").
407. See id. at 242.
408. See id. at 185-188.
409. See supra note 37 and accompanying text.
410. See supra note 29 and accompanying text.
411. See supra note 36 and accompanying text.
412. See Gray v. Sanders, 372 U.S. 368, 382-90 (1963) (Harlan, J., dissenting).
413. See id.
414. 369 U.S. 186 (1962).
415. 372 U.S. at 368.
416. 377 U.S. 533 (1964).
417. 376 U.S. 1 (1964).
418. See, e.g., Gray, 372 U.S. at 379-81.
419. 462 U.S. 919.
420. Gray, Id. at 944.
421. Gray, Id.
422. 395 U.S. 486 (1969).
423. Gray, Id. at 546-47.
424. See, e.g., Page v. Dole, No. 93-1546 (D.D.C. Aug. 18, 1994), vacated as moot, 1996 WL 310132 (D.C. Cir. 1996)
425. Skaggs v. Carle, 110 F.3d 831, 847 (D.C. Cir. 1997) (Edwards, C.J., dissenting).
426. Page, No. 93-1546, slip op. at 15.
427. Skaggs, 110 F.3d at 846 (Edwards, C.J., dissenting).
428. U.S. Term Limits v. Thornton, 514 U.S. 779, 829 (1995) (internal quotation omitted)
429. see also Anderson v. Martin, 375 U.S. 399, 404 (1964) ("[T]hat which cannot be done [directly] by express statutory prohibition cannot be done by indirection.").
430. Floor Deliberations and Scheduling: Hearing Before the Joint Comm. on the Org. of Cong., 103d Cong. 23 (statement of Lloyd Cutler, Counsel, President Carter).
431. See Terry v. Adams, 345 U.S. 461, 469-70 (1953)
432. Smith v. Allwright, 321 U.S. 649, 664 (1944).
433. 345 U.S. at 461.
434. Smith v. Allwright, Id. at 463-64, 470.
435. Smith v. Allwright, Id. at 469
436. see also Gray v. Sanders, 372 U.S. 368, 379-81 (1963) (holding that the Georgia county "unit system" was unconstitutional, even though the system applied only to the nominating process in primary elections and not to general elections, which were decided by a majority of the popular vote).
437. See, e.g., Cook v. Gralike, 531 U.S. 510, 524-26 (2001) (holding that a Missouri constitutional provision requiring that there be printed next to a candidate's name on a ballot information about whether the candidate supported term limits for members of Congress was a transparent attempt to influence voters)
438. Anderson v. Celebrezze, 460 U.S. 780, 792, 795, 806 (1983) (invalidating Ohio's early nomination requirements for independent presidential candidates on the ground that the practical effect of the requirement was to ban independent candidates from having access to the general election ballot)
439. Anderson v. Martin, 375 U.S. 399, 402-04 (1964) (striking down a Louisiana statute that required that the race of a candidate be printed next to a candidate's name on the ballot because its practical effect was to influence voters to cast their ballots based on race).
440. See Cornyn, supra note 65, at 191-92.