This is the Cato Daily Podcast for Friday, May 18th, 2012. I'm Caleb Brown.

The filibuster is a long-standing rule in the Senate, but partisan wrangling means the Senate is moving ahead with very few pieces of legislation.

Example, a budget to operate the federal government.

Add to that a claim that the rule isn't even constitutional.

John Samples is director of the Cato Institute's

Center for Representative Government.

He comments.

What is the best case that can be made

that the filibuster is an unconstitutional exercise within the Senate.

The case depends on the idea

that all of the supermajority requirements

for passing legislation are in the Constitution.

However, the problem with that position, and I think why most people realize that this is a weak case,

is that the Constitution also gives both houses of Congress the power to set

their own rules.

So that would seem to include also the power to have super majority requirements like the

filibuster.

In other words, they can be added to what's in the Constitution.

So when you take that and the whole question of a political question that you know really you would have the

Supreme Court intervene deeply into the affairs of major house of Congress it

really becomes quite clear that the courts are not going to get involved in telling

the Senate that it can't do what it's done for decades.

...