More and more in recent years, a single word has dominated news coverage of the United States Senate: filibuster. The word evokes images of non-stop talkathons and nothing getting done.
Although so-called "speaking filibusters" are almost entirely a thing of the past, there's considerable support for the impression of gridlock. The 116th Congress was the least productive in 50 years; only 194 bills were passed by both houses and signed into law as of December 4, 2020.
For most of the history of the Senate, filibusters have been exceedingly rare, but no more. Mitch McConnell's tenure as Senate majority leader accounts for 28.61% of all motions for cloture (the parliamentary motion used to end a filibuster); 43.4% were successful. His tenure as Senate Republican Leader - both Minority and Majority - accounts for 57.1% of all cloture motions since 1917, of which 75.58% were successful. The 117th Congress has been in business for only a little over two months, and there have already been eleven cloture motions and nine cloture votes - all successful.
The Senate Rules. Two Senate Rules govern the filibuster. According to Rule XXII.2, sixteen Senators are required to sign a cloture motion. "[I]f 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 cloture has been adopted. One would think that after a cloture motion expressing "the sense of the Senate that the debate shall be brought to a close," the Senate would proceed immediately to a final vote. Not exactly - the debate continues, but only for thirty more hours.
The second rule that is important to keep in mind for understanding the filibuster is Rule V.2, which provides that Senate rules "shall continue from one Congress to the next Congress unless they are changed as provided in these rules." In other words, a motion to amend Rule XXII and abolish the filibuster can itself be filibustered.
Critics of the filibuster have repeatedly pointed out that given how commonplace the maneuver has become, the rule establishes a de facto sixty-vote threshold for anything to pass the Senate, a thoroughly inefficient and indeed anti-democratic (small "d") state of affairs. But there is a more fundamental problem with the filibuster.
The Senate filibuster is unconstitutional.
The Plain Language of the Constitution. This is evident first and foremost based upon the plain language of the Constitution. According to Article I, Section 3, "each Senator shall have one vote." But as long as the filibuster is in place, any action - even proceeding to debate a bill - can be prevented by only 41 of the 100 Senators. A partisan Republican filibuster could be carried out by Senators representing only 22.01% of the nation's estimated 2019 population.1 A partisan Democratic filibuster would require the votes of Senators representing only 31.85% of the population.2 This state of affairs reduces the claim that all Senators have an equal voice to a meaningless formality. The provision in the Seventeenth Amendment that "each Senator shall have one vote" is equally violated by the filibuster.
Later in Section 3, the Founders provided that "The Vice President . . . shall have no vote [in the Senate], unless they be equally divided." But if any Senate action can be blocked by a mere 41 Senators, then the Senate can never be "equally divided" except in a vote on final passage taken after cloture is successfully invoked, when the result is a foregone conclusion.
Article I, Section 5 provides that "a majority of each [house of Congress] shall constitute a quorum to do business." Given that - as we shall see below - the contemporary understanding of Founders was that a majority of a quorum was sufficient to act, this is further evidence that the Senate is not free to hamstring itself by requiring a de facto sixty-vote supermajority to take action.
Perhaps the most powerful evidence of all is the language in Article V incorporating what is known as the "Great Compromise" which made the Constitution possible - the agreement between small- and large-state delegates to the Federal Convention that one house would be apportioned by population and one on an equal basis. According to Article V, "no state, without its consent, shall be deprived of its equal suffrage in the Senate." When sixty votes are effectively required to take action, states have indeed been deprived of their equal suffrage - the votes of up to fifty-nine Senators who support a proposed action are devalued in comparison to the forty-one Senators who oppose it.
Seven provisions of the Constitution expressly require a supermajority of one or both houses of Congress in order to accomplish a specific action: Senate conviction following impeachment (Article I, Section 3); expulsion of a Senator or Representative (Article I, Section 5); overriding a Presidential veto (Article I, Section 7); Senate ratification of a treaty (Article II, Section 2); proposing a constitutional amendment (Article V); removing the disqualification from Federal office imposed by Section 3 of the Fourteenth Amendment to persons who "engage[ ] in insurrection or rebellion against" the United States; and determining presidential disability (Twenty-Fifth Amendment, Section 4).
This list of seven supermajority clauses further supports the conclusion that a sixty-vote requirement for Senate action is unconstitutional pursuant to the venerable interpretive principle of expressio nius est exclusio alterius - a list of one or more things in a certain class is construed as excluding others of the same class. The Framers were well aware of this maxim of construction; John Dickinson cited it in Philadelphia on July 26, 1787 as his reason for opposing the enumeration of qualifications for Congressional service in the Constitution.
The Supreme Court has cited the maxim in several landmark cases. For example, in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803), the Court held that the listing in the Constitution of specific grounds for the Supreme Court to exercise original jurisdiction was necessarily exclusive. In Powell v. McCormack, 395 U.S. 486, 532-533 (1969), the Court cited Dickinson's July 26 argument to the Convention in holding that, just as Dickinson had predicted, the Congressional qualifications set forth in Article I, Section 2 were exclusive. Id. at 550. In Clinton v. City of New York, 524 U.S. 417, 439 (1998), the Court similarly held that the President's limited powers under the Presentment Clause impliedly excluded the possibility that the President could be given a line-item veto.
The Framers on Supermajorities. It is not difficult to guess what the Framers would have thought of a requirement that the Senate muster a three-fifths vote in order to take any significant action; Article IX, Clause 6 of the Articles of Confederation, which required nine states' agreement in Congress in order to take most major actions, was one of the principal reasons why the Constitution was written and adopted. During the Federal Convention, Roger Sherman commented that "to require more than a majority to decide a question was always embarrassing as had been experienced in cases requiring the votes of nine States in Congress." The same day, James Wilson agreed that "[g]reat inconveniences had . . . been experienced in Congress from the article of confederation requiring nine votes in certain cases." Two months earlier, Wilson had read written remarks by Benjamin Franklin to the Convention calling any legislative system by which the "minority overpowers the majority contrary to the common practice of Assemblies in all Countries and Ages."
Alexander Hamilton and James Madison unequivocally rejected legislative supermajorities in the Federalist Papers. Hamilton wrote in No. 22: "The necessity of unanimity in public bodies, or of something approaching towards it, has been founded upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority . . . 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."
According to James Madison writing in No. 58, any arguments in favor of requiring legislative supermajorities "are outweighed by the inconveniences in the opposite scale. In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. 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."
There was no parliamentary method available for minorities to obstruct legislative business over the objections of the majority at the time the Constitution was written. In 1604, the British Parliament adopted a rule providing for a "motion for the previous question." Such a motion was privileged and not subject to debate, it had to be voted upon immediately, and if it passed by a simple majority, the issue the minority was trying to obstruct had to be given a final vote without further delay. The Second Continental Congress authorized the previous question motion in 1778, nine years before the Constitutional Convention. Thomas Jefferson endorsed the previous question motion is his Manual of parliamentary procedures for the Senate. Previous question motions were made and adopted ten times between the First Congress and 1806. The previous question rule was done away with in 1806 (on the recommendation of Aaron Burr) not because the members intended to authorize open-ended debate whenever the minority wanted it, but because it had been necessary to use it so seldom that Burr considered it superfluous.
Rule V - Entrenching the Filibuster. Constitutional analysis of Rule V, which makes Senate rules binding from one session of the Senate to the next and, in conjunction with Rule XXII, allows a filibuster of a proposal to revise or eliminate the filibuster itself, is straightforward. Rule V violates a principle of parliamentary law going all the way back to Blackstone: "Acts of parliament derogatory from the power of subsequent parliaments bind not." 1 Blackstone, Commentaries on the Laws of England, p. 52. The Supreme Court has repeatedly applied the same principle. According to Chief Justice Taney in Ohio Life Ins. and Trust Co. v. Debolt, 57 U.S. (16 How.) 416, 440 (1853), "no one Legislature can, by its own act, disarm their successors of any of the powers or rights of sovereignty confided by the people to the legislative body." See Connecticut Mutual Life Ins. Co. v. Spratley, 172 US 602, 621 (1898). Each Senate has the constitutional right to amend its Rules and do away with the filibuster if it chooses by simple majority vote.
Defenses to a Litigation Attack on the Filibuster Rules. Although there would be two plausible defenses to a lawsuit asking the courts to invalidate the filibuster, there are strong counters to each.
The defendants would argue that the validity of the filibuster is a political question. In Baker v. Carr, 369 U.S. 186 (1962), the Supreme Court held that a political question was one for which "is found a textually demonstrable constitutional commitment of the issue to a coordinate political department" or "a lack of judicially discoverable and manageable standards for resolving it." Id. at 217. Advocates of the filibuster point to Article I, Section 5 of the Constitution, which provides that the House and Senate "may determine the Rules of its Proceedings."
But the Court's decision in Powell v. McCormack, 395 U.S. 486 (1969) should dispose of the political question argument. There, Congress had refused to seat Representative Adam Clayton Powell on the grounds that he had deceived Congress with certain travel vouchers, notwithstanding the fact that he clearly met the constitutional qualifications for service in Congress. The defendants argued that Powell's suit presented a political question, pointing to the language in Article I, Section 5 authorizing each house of Congress to "be the Judge of the Qualifications of its own Members." The Court disagreed, holding that the qualifications set forth in the Constitution for House members were an exclusive list and nothing in Section 5 gave the House authority to manufacture an unconstitutional limitation on who could be members. As the Court had written long before in United States v. Ballin, 144 U.S. 1, 5 (1892), Congress "may not by its rules ignore constitutional restraints or fundamental rights." The constitutionality of the filibuster is not a political question.
The more substantial potential objection to such a suit is the issue of standing. To establish standing, a plaintiff must establish (among other things) an invasion of a legally protected interest which is concrete and particularized. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). A generalized grievance which is "shared in substantially equal measure by all or a large class of citizens" is not good enough. Id. at 573-74. Defenders of the filibuster would argue that any defects in the filibuster are a generalized grievance shared by all.
It is possible to posit potential plaintiffs who might be able to establish standing to challenge the filibuster, however. A presidential nominee who could present compelling evidence that absent a filibuster she would have been confirmed by the Senate might be one such case. The rule of Northeastern Florida Chapter of the Associated General Contractors of America v. City of Jacksonville, Florida, 508 U.S. 656 (1993) might be another: "When the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing." Id. at 666. Allegations that the legislative influence of members of the Senate majority had been diminished by filibusters blocking Senate action might be a third avenue to establish standing. Michael v. Anderson, 14 F. 3d 623, 625 (D.C. Cir. 1994).
Possible Remedies Short of Striking Down the Filibuster Rules. At least three potential remedies are available to the Senate even short of amending Rules XXII and V to formally abolish the filibuster or asking the courts to invalidate the rules on constitutional grounds.
The Two-Track System. The least sweeping reform would be to abolish the "two-track system." With Senate action on a variety of issues blocked by frequent filibusters against civil rights proposals, former Majority Leader Mike Mansfield instituted this system, which permits the Senate to spend mornings on the filibustered legislation while using afternoons to pursue other business. But because the two-track system eliminates the most serious cost of a filibuster - the news visuals of a Senate brought to a complete halt by the maneuver, and the political pressure of other proposals waiting for action - it has likely contributed to making filibusters commonplace in recent decades. Eliminating it might reduce the number of filibusters by increasing their cost.
Bring Back the "Speaking Filibuster." The classic image of the Senate filibuster is drawn from Jimmy Stewart's one-person filibuster in Mr. Smith Goes to Washington - one or more Senators controlling the floor, talking non-stop until exhaustion overtakes them or the Senate majority gives up. But today, Senate rules no longer require filibustering Senators to hold the floor and continue speaking to keep a filibuster going. Essentially, all that is required is for a minority of the Senators - or even just a single Senator - to place a hold on a nomination, motion or bill, promising to block any unanimous consent motion to end the debate, and the measure at issue is blocked absent cloture. Some commentators have called the result the "stealth filibuster," where it is possible to block legislation favored by the majority without creating any potentially damaging visuals for the evening news of Senators obstructing the Senate from its work. Eliminating the stealth filibuster and requiring filibustering Senators to talk nonstop for a filibuster to continue would increase the political cost of the maneuver and potentially reduce its use.
Reauthorize the motion for the previous question. The cleanest solution short of ending the filibuster through litigation or a Senate rule change would be to adopt a new Senate rule reauthorizing the motion for the previous question. Filibusters would still be technically permitted under this approach, but a filibuster could be ended at any time if the Senate majority could muster 51 votes for adoption of a motion for the previous question.
With the same party in control of both houses of Congress and the White House, measures to end the filibuster are inevitably described as partisan. They are not. The filibuster rules are unconstitutional regardless of whether the filibustering group is Democratic, Republican or bipartisan. The filibuster should be done away with once and for all.
Footnotes
1 Wyoming, Alaska, North Dakota, South Dakota, Montana (one Republican), Maine (one Republican), Idaho, West Virginia (one Republican), Nebraska, Kansas, Mississippi, Arkansas, Iowa, Utah, Oklahoma, Kentucky, Louisiana, Alabama, South Carolina, Wisconsin (one Republican), Missouri, Indiana and Tennessee.
2 Vermont (one Independent caucusing with Democrats), Delaware, Rhode Island, Montana (one Democrat), Maine (one Independent caucusing with Democrats), New Hampshire, Hawaii, West Virginia (one Democrat), New Mexico, Nevada, Connecticut, Oregon, Minnesota, Colorado, Wisconsin (one Democrat), Maryland, Massachusetts, Arizona, Washington, Virginia, New Jersey, Michigan and Georgia.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
