It’s Time to Revamp the Senate Filibuster

One of the most relevant rules to politics in our current day is that of the Senate filibuster. The filibuster requires three-fifths of the Senate to vote to end debate on a bill in order for the legislation to be voted upon. In recent years, it has been a mainstay of Senate deliberations and has prevented both Republicans and Democrats from passing bills even when the majority voted to do so. Some legal scholars argue that the filibuster actually violates the Constitution and is contrary to the Founding Fathers’ wishes. Though multiple sections of the Constitution implicitly oppose the filibuster rule, the filibuster is constitutional because the Senate has the power to decide the rules of its own proceedings. Nevertheless, the filibuster should be amended because it has come to markedly hinder the Senate’s ability to legislate, therefore preventing the legislature from carrying out its duties as laid out in the Constitution.

Logistics of the Filibuster

In the Senate, there are two ways to move to a vote, thereby ending debate: a senator (usually the Majority Leader) can either ask for unanimous consent if there are no objections or a senator can file for cloture. The cloture rule was introduced in 1917 by Senate Rule 22 and initially required a two-thirds majority vote. This requirement was lowered to a three-fifths vote in 1975 [1]. There are some exceptions to this cloture rule, including nominations to executive branch positions and federal judgeships, trade agreements, and the annual budget reconciliation [2]. Otherwise, 41 senators can choose to filibuster a bill, thereby preventing it from coming to a vote, which would otherwise require a simple majority to pass and become law. The Constitution grants both the Houses of Representatives and the Senate the right to determine their own rules and proceedings. Under this logic, the filibuster should be reformulated to discourage its use not necessarily because it violates the constitution, but because it has come to impede the necessary processes of government. By providing the minority in the Senate with the power to block any legislation as long as they have 40 votes, and in our increasingly polarized and combative political environment, the filibuster discourages bipartisanship.

History of the Filibuster

The original Senate rules required a simple majority to end debate on a bill and proceed to a vote. However, in 1806 this rule was abolished by Aaron Burr who called it redundant [3]. Senators who wished to prevent the passage of a bill would just keep talking. Senator Strom Thurmond from South Carolina holds the record for the longest filibuster, with a 24 hour and 18 minute long speech arguing against the Civil Rights Act of 1957 [4]. Interestingly, the filibuster has historically often been used to oppose civil rights legislation. It was used by pro-slavery Southerners in the 19th century, such as John Calhoun. It was also used against civil rights legislation during and after the Jim Crow era, including for anti-lynching bills and the Civil Rights Act [5]. The filibuster has been increasingly invoked in the past decade. Of the 2,000 filibusters since 1917, approximately half have been in just the last 12 years [6]. Since 1917, 57.1% of all cloture motions have occurred during Mitch McConnell’s time as Senate Republican Leader [7]. Cloture is a good indicator of the use of filibuster because it is used to end a filibuster, as 60 Senators can vote to continue directly to a vote. So, a higher rate of cloture motions signals greater use of the filibuster. These statistics demonstrate the increasing normalcy with which the filibuster has been invoked to halt legislation.

The Filibuster in the Constitution

Though the filibuster is not mentioned explicitly in the Constitution, there are multiple statements that implicitly prevent it. In Article 1, Section 3 of the Constitution, it states that “each Senator shall have one Vote” [8]. The filibuster obstructs this declaration in practicality, as the votes of 41 senators may be taken as equal to the votes of 59. The votes of the minority are given more weight than those of the majority, which contradicts this notion of one senator, one vote. In Article 1, Section 5 of the Constitution, it states that “a Majority of each [House of Congress] shall constitute a Quorum to do Business” [9]. Though “Quorum to do Business” may have multiple interpretations, one would be the decision to vote on a bill. This specifies the requirement of a majority as opposed to a supermajority. The filibuster currently requires a supermajority. In other sections of Article 1, the Constitution specifies that movements such as impeachment or overriding a presidential veto require the “Concurrence of two thirds of the Members present” [10]. This precludes a supermajority (such as that outlined by the filibuster) by the concept of expressio unius est exclusio alterius, which means “the express mention of an item excludes others” [11]. In other words, the listing of seven examples where a two-thirds majority is necessary by implication suggests that any other movement outlined by the Article does not require this supermajority, but a simple majority. This category would include the motion to end debate. In Article 5 of the Constitution, it states that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate” [12]. Though different states may be deprived depending on the situation, the filibuster rule always deprives the majority of their equal suffrage.

Despite all these examples, there is one clause that renders the filibuster moot. Despite all these examples, one clause renders these moot and allows the filibuster. Article 1, Section 5 of the Constitution states that “Each house may determine the Rules of its Proceedings” [13]. Therefore, the Senate has the right to decide its own deliberations, a right it has exercised consistently throughout the country’s history to reach the complex political landscape we have today. This means that although some scholars and politicians make the argument that the filibuster is unconstitutional, it still holds that the Senate is able to decide its own proceedings. Many other aspects of the legislature were also not outlined in the Constitution. The granting of the Senate this power allows the filibuster, but it also means that the Senate can change the filibuster, as has been done before.

The Federalists on the Filibuster

Though the Founding Fathers did support a multitude of conservative measures to restrict the ease of changes in policy, the language of the Federalist Papers reveals that both Alexander Hamilton and James Madison stood firmly against the use of supermajorities in the legislature [14]. With the use of a supermajority, more than half of the votes in the legislature are necessary to pass legislation. This inherently grants the minority more power, as a lower number of legislators may block the votes of the higher supermajority. In Federalist Paper 22, Hamilton writes that “if a pertinacious minority can control the opinion of a majority… the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater” [15]. In Federalist Paper 58, Madison argues that “it would be no longer the majority that would rule: the power would be transferred to the minority. Were the defensive privilege limited to particular cases, an interested minority might take advantage of it to screen themselves from equitable sacrifices to the general weal, or, in particular emergencies, to extort unreasonable indulgences” [16]. Madison extends Hamilton’s argument to describe the negative externalities that may arise given this undue power of the minority. Of note is his expectation of “unreasonable” demands made by the minority. Madison and Hamilton, along with their rhetoric surrounding tyranny of the majority, nevertheless feared and disapproved of the power granted to a minority in the case of a supermajority requirement. Though this also does not make the filibuster unconstitutional, it reveals the intentions of the Constitution’s framers. The filibuster runs directly counter to their ideas of a democratic government.

Why the Filibuster Should be Adjusted

The filibuster, though not explicitly prohibited in the Constitution, prevents the Senate from performing its duties. Countless bills that would have passed through majority have been delayed or “died” because of the filibuster. For legislators and citizens in general, this reveals a dysfunctional government. Though legislation should arguably be difficult to pass, we have passed the realm of security in delayed legislation into that of debilitation. The Congress has the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof” [17]. With the current use of the filibuster, they are not able to achieve this. The filibuster, rather than encouraging bipartisanship as it was originally thought to do, now prevents it as the minority party always blocks legislation without any motivation to come to the bargaining table and reach a compromise. The expectation of bipartisanship cannot be achieved with the filibuster as it now stands. Though the majority may be more inclined to listen to the wishes of the minority, in the current polarized political climate the minority very rarely answers to efforts by the majority to come across the aisle. Though the filibuster is constitutional, its current iteration prevents the Senate from acting as it was intended to act.

The Process Necessary to Abolish or Change the Filibuster

Article 1, Section 5 of the Constitution states that the Senate is permitted to decide its own rules on proceedings. The only thing the Senate needs to do to abolish the filibuster is to amend its rules, specifically Rule 22. However, this formal change would require a two-thirds majority of the Senate to vote in favor [18]. In today’s political climate, it is extremely unlikely that any party would have a large enough majority to accomplish this or that it could be achieved through bipartisanship. The other option is the “nuclear option,” a process in which a Senator can set a new precedent by raising a point of order which stipulates that a Senate rule has been broken. It has been used in 2013 and 2017 to make exceptions to the filibuster. If the presiding officer agrees, the precedent is established. If the presiding officer disagrees, the point of order goes to a vote and can be passed with a simple majority, thereby creating a new precedent with only 51 votes [19]. Though this option has been called the “nuclear option” to describe its radicality in going against the established norms of the Senate, this misnomer fails to account for the fact that the nuclear option allows the Senate to proceed as was originally stipulated in the Constitution, with bills passing with a simple majority instead of a supermajority. Just as the filibuster rose as a change to previous norms of the legislature, the use of the nuclear option may be used to reshape it.

An alternative to completely abolishing the filibuster, however, is shifting it to become a new “nuclear option” which is difficult to achieve and only brought out under dire circumstances. There are alternatives to the filibuster which conciliate the extreme stalemate that the current filibuster permits and the other extreme of abolishing it.

Proposed Alternatives to the Filibuster

Though the simple eradication of the filibuster is an option, there are others to either replace the filibuster or change its rules. One less radical change proposed by Norman Ornstein, an American political scientist, is to change the rules of the filibuster from 60 votes to 40 votes. With this change, it would require active effort on the minority to maintain a filibuster. In practice, when the number of votes is between 51 and 59, the minority simply needs a few members present in order to prevent a unanimous vote for cloture. If the rule was changed in this manner, at least 40 members of the minority would have to be present to continue the filibuster, which would prove difficult, as emergencies or health conditions may arise (especially from a Senate whose current average age is over 64 years). Senators would still have this option, but it would require an active effort by the minority, instead of placing the responsibility to overcome the filibuster onto the majority. This would limit the frequency with which minorities would be willing to use the filibuster, though keeping it a possibility in dramatic cases.

Another possibility, championed by President Biden himself, is a return of the talking filibuster [20]. Similar to Ornstein’s suggestion, this would shift the burden of a filibuster onto the minority. They would have to hold the Senate floor and continue talking to maintain the filibuster, which would make the motion more difficult and therefore limit its usage. This could also encourage bipartisanship as active debate over the bill continues.

Originally suggested by Senators Tom Harkin and Joe Lieberman, the “step-down” process would gradually lower the number of votes necessary to invoke cloture until it reached 51 votes. With this process, the minority could delay legislation but not prevent it, and they would be much more incentivized to deliberate with the majority to amend the bill [21]. This would encourage bipartisanship, as opposed to the current rules, which hinder it.

One other idea supported by Stacey Abrams is to make more exceptions to the filibuster, including those for voting rights legislation and election reform [22]. With this change, more legislation would go through the Senate with a simple majority, which would increase its ability to legislate and decrease the amount of filibusters significantly.

Conclusion

In sum, contrary to the arguments made by some legal scholars, the filibuster is constitutional. However, the legislature is burdened with a duty that is paramount to the functioning of the country. With the current political climate, the rules of the filibuster directly work against these duties and obstruct important legislation. For this reason, the filibuster, an important procedure which has been altered throughout the course of history, deserves a revamp in the present moment, one which fosters bipartisanship and prevents the unreasonable concentration of power in the minority.

References

[1] “U.S. Senate: About Filibusters and Cloture | Historical Overview,” accessed November 14, 2021, https://www.senate.gov/about/powers-procedures/filibusters-cloture/overview.htm.

[2] Tim Lau, “The Filibuster, Explained | Brennan Center for Justice,” accessed November 14, 2021, https://www.brennancenter.org/our-work/research-reports/filibuster-explained.

[3] Ibid.

[4] “U.S. Senate: About Filibusters and Cloture | Historical Overview.”

[5] Lau, “The Filibuster, Explained | Brennan Center for Justice.”

[6] Ibid.

[7] Kirk Jenkins, “The Senate Filibuster Is Unconstitutional - Government, Public Sector - United States,” accessed November 14, 2021, https://www.mondaq.com/unitedstates/constitutional-administrative-law/1055566/the-senate-filibuster-is-unconstitutional.

[8] “U.S. Senate: Constitution of the United States,” accessed November 14, 2021, https://www.senate.gov/civics/constitution_item/constitution.htm.

[9] Ibid.

[10] Ibid.

[11] Jenkins, “The Senate Filibuster Is Unconstitutional - Government, Public Sector - United States.”

[12] “U.S. Senate: Constitution of the United States.”

[13] Ibid.

[14] Jenkins, “The Senate Filibuster Is Unconstitutional - Government, Public Sector - United States.”

[15] Hamilton, Alexander. 2012. The Federalist Papers. New York, NY: Dutton/Signet.

[16] Madison, James. 2012. The Federalist Papers. New York, NY: Dutton/Signet.

[17] “U.S. Senate: Constitution of the United States.”

[18] Molly E. Reynolds, “What Is the Senate Filibuster, and What Would It Take to Eliminate It?,” Brookings (blog), September 9, 2020, https://www.brookings.edu/policy2020/votervital/what-is-the-senate-filibuster-and-what-would-it-take-to-eliminate-it/.

[19] Reynolds, “What Is the Senate Filibuster, and What Would It Take to Eliminate It?”

[20] Mira Ortegon, “Fixing the Senate Filibuster,” accessed November 14, 2021, https://www.brennancenter.org/our-work/analysis-opinion/fixing-senate-filibuster.

[21] Ibid.

[22] Lau, “The Filibuster, Explained | Brennan Center for Justice.”