Thoughts on the Lawsuit Against Filibustering in the Senate

by Gregory Koger on May 15, 2012 · 14 comments

in Law,Legislative Politics,Senate procedure

I have to confess I am very excited that Common Cause has filed a lawsuit against the Senate filibuster. Excited in a John Stuart Mill, isn’t-it-great-when-bad-arguments-get-aired-and-demolished kind of way. For decades, opponents of the filibuster have claimed that it is “unconstitutional.” Now they will get their day in court and if, as I expect, they lose, then we can return the question of if and how senators will address the systemic problems of their chamber.

I have already discussed the constitutionality in a previous post. After reading the plaintiffs’ brief, I have a few additional thoughts.

1) The Constitution does not require Congress to utilize simple majority rule.

The central argument of the brief is that the use of supermajority procedures in the U.S. Congress is inherently unconstitutional. It states, “The principle of majority was so basic to the concept of a democratically elected legislative body that it did not need to be expressly stated in the Constitution.” Of course, too-important-to-be-written looks exactly like n0t-important-enough-to-include, so affirming this claim would invite a series of lawsuits claiming other “obvious but unwritten” principles.

The brief goes on to claim that “when the framers of the Constitution intended to create exceptions to the principle of majority rule…they did so expressly by six specific provisions of the Constitution.” It is surprising to see progressives arguing for a literal and historical interpretation of the Constitution, but what happens if we take this argument at face value? Then every supermajority procedure used by Congress is prohibited and has always been wrong. In addition to the Senate’s Rule 22, an absolute ban on supermajority thresholds would also take with it:

  • the Senate rule requiring 60 votes to waive the Budget Act

  • The Senate practice (but not a rule) of requiring a 2/3 majority to waive Senate rules

  • The House rule—dating back to 1822—of requiring a 2/3 majority to waive Senate rules.

  • A variety of little-used or often-waived House supermajority thresholds—to waive Calendar Wednesday, to raise taxes, to pass bills on the “Corrections Calendar.”

The 3rd point is worth emphasis. While it is fair to say that the House is a chamber in which a majority can pass almost any legislation and this system provides great advantages to the majority party, it would also be fair to say that in practice the House does most of its legislation by supermajority vote. During the 111th Congress, the House 130 votes on final passage of bills or resolutions (excluding special rules proposed by the Rules Committee) and 695 votes on final passage of bills under suspension of the rules, which requires a 2/3 supermajority. What makes the House distinct from the Senate is not that it only uses simple majority rule, but that it has a regular process for passing legislation by simple majority rule when the majority party chooses to do so.

2) Technically, bills and nominations are passing by majority rule. The Senate’s cloture rule is used to limit debate, and the alternative to using the cloture rule is allowing senators to debate until they have all had their say. This is completely impractical in the modern Senate, but it is possible that a court will care more about the formal rules of the Senate than the practice.

3) The brief also makes the classic “standing body” argument: the permanence of Senate rules and the ability of senators to filibuster proposals to change the rules creates an unconstitutional barrier against the ability of each new group of senators to choose their rules anew. This argument faces two challenges: 1) senators could renounce this system at the beginning of a new Congress if they want to do so; 2) they have repeatedly voted against doing so. It seems unlikely that federal courts will mandate a specific, oft-rejected process for choosing Senate rules.

4) The brief—and Ezra Klein’s recent post on the suit—relies in large part on the claim that the Senate filibuster persists due to the Senate’s 1806 decision to eliminate the previous question motion from its rules. This is a complex argument that deserves its own post; suffice it to say that I think it is absolutely wrong. In the long run, rules don’t make legislatures; legislators make rules.  Until I have the time to write a full post, I repeat from August 2009:

First, the House retained its previous question motion but there was MORE filibustering in the 19th century House than in the Senate, because the previous question was ineffective against dilatory motions and quorum-breaking.


Second, as Joe Cooper proved back in 1962, the previous question motion was not originally used to limit debate (See “The Previous Question: Its Status as a Precedent for Cloture,” Senate Document No. 104, 87th Congress, 2nd Session). So the existence of this motion in the 1789 Senate rules does NOT suggest that the early Senate was committed to majority rule.


Third, and most important, the previous question is NOT the only motion that can be used limit debate. There are any number of strategies that can be used to limit obstruction: in the final analysis, senators are only constrained by their imagination and their constituents’ taste for procedural reform. If senators are determined to restrict filibustering (which I would not recommend—more on this later) I personally think the simplest mechanism would be to revise the interpretation and use of the motion to suspend the rules. Or, they can adopt the Republicans (circa 2005) doublethink approach of “60 means 50”, i.e. the “true” threshold for cloture on some issues is simple majority. Or, as one senator suggested in 1915, any senator can move the previous question and—with the support of a determined majority—defeat the inevitable point of order that the Senate doesn’t have one. The means don’t matter: what senators lack—and have always lacked—is the desire to impose majority rule.


5) What happens if Common Cause wins? While I am skeptical of the arguments made in the brief, I am sympathetic with the critique of the Senate that motivates the suit. The Senate has ceased to be a functioning organization. The Republicans generally don’t want anything to pass, and when legislation does come to the floor the Republican often demands roll call votes on “message” amendments that provide fodder for the current news cycle and the next campaign. The Democrats, whose majority is based on winning seats in red states, don’t want to vote on these amendments. And so there is a stalemate in which must-pass legislation is put off until the final moment while they wait for each other to blink and nothing else gets done.

The ability of senators to filibuster certainly exacerbates this situation, but the real problem is senators’ collective lack of interest in governing. As Senator Snowe put it on today’s Morning Joe,

We’re not grappling with the questions that could turn this economy around. That’s why you are having this sub par economic growth… [A] messaging amendment doesn’t put food on the table, doesn’t elevate your wages, doesn’t create a job or lower gasoline prices. It’s all about the next election. We’ve been all about the next election since the last election. It’s true. I mean there was no difference between campaigning and governing anymore. And yet people are out there experiencing significant financial hardship and they don’t understand how it can be so broken in Washington.


When many senators are unwilling to cooperate or compromise for fear of losing their next primary or blurring party distinctions before the next election, it is nearly impossible to get anything done. Changing the voting threshold would have the small benefit of removing an excuse for this dysfunction, but it would not solve the more fundamental problem that many legislators find it in their electoral interests to disagree.

{ 14 comments }

Chris May 15, 2012 at 3:29 pm

“The Senate has ceased to be a functioning organization. The Republicans generally don’t want anything to pass, and when legislation does come to the floor the Republican often demands roll call votes on “message” amendments that provide fodder for the current news cycle and the next campaign. ”

It’s not the Senate’s fault, it’s not the Republican’s fault, and it’s not the filibuster’s fault that the Senate Democratic majority hasn’t passed a budget in 3 years. It’s the Democrats’ fault and no-one else.

It’s understandable that the President wants to muddy the waters and blame Republicans for his own party’s failures. That’s the only way he’ll keep his job. But it’s embarrassing when political scientists start publishing books and writing blogs posts supporting the obfuscation.

Gregory Koger May 15, 2012 at 3:43 pm

“It’s not the Senate’s fault, it’s not the Republican’s fault, and it’s not the filibuster’s fault that the Senate Democratic majority hasn’t passed a budget in 3 years.” This is correct; budget resolutions cannot be filibustered, and the fact that the Senate has not passed one illustrates the majority party’s lack of interest in following through with this basic task. For basic tasks like passing appropriations bills, however, there is plenty of blame to go around. If you re-read the post, you will find that it notes the Democrats unwillingness to vote on “message” amendments as a contributing factor to the Senate’s dysfunction, and that the only senator quoted is a Republican.

As for the President’s “obfuscation,” I simply note that my post makes no reference to President Obama.

Mel November 19, 2012 at 3:00 pm

The filibuster is a tool used by the minority party to obstruct or halt the procession of a bill they are against. And lets see, who is the current minority party in the Senate? Oh yea; the Republicans! The Democrats filibustered prior to 2007 when they took control of the Senate, for Bush’s nomination of controversial and biased judges (see Nuclear Option). The Republicans just filibuster anything that Obama supports. Currently, the Democrats have entered into talks in reforming the filibuster by making the filibuster non-anonymous and making them talk, to bring back the original purpose of the use of the filbuster.

Lorrie Craven November 30, 2012 at 1:19 am

Lets see, who was the current minority party in 2005 when the Republicans wanted to make changes for Filibuster Reform? It was, of course the Democrats.

In 2005, when Republicans threatened to change the rules to weaken Senate Democrats, Reid was a vocal opponent saying, “For people to suggest that you can break the rules to change the rules is un-American”

What goes around comes around but wouldn’t it be nice if both parties just got down to the business of working for The People.

Scott Monje May 15, 2012 at 5:10 pm

Isn’t this year’s budget supposedly covered by the Budget Control Act of 2011, an actual law rather than a mere resolution, and one which Republicans have chosen to ignore both in terms of talking points and in terms of actual budgeting?

patrick stephens May 15, 2012 at 6:10 pm

“The Senate has ceased to be a functioning organization.”

This implies that a functioning legislature (or one functioning ~correctly~), is an efficient legislature; it assumes that making law quickly and expediently is preferable to making no law at all.

The unique construction of the US Constitution makes the business of legislation particularly difficult and cumbersome (far more so in its original form where Senators were not popularly elected). Majorities are required in two distinct bodies each beholden to different constituencies. Assent is then required from the Executive, an office itself beholden to yet another constituency. The end result of this process is then subject to judicial review by a panel of jurists who are (at least theoretically) unburdened by the demands of any current constituency.

All of this combines to enforce a relatively cautious approach to new law. American law is, by design, intended to be difficult to make, change or repeal. The Framers did this consciously and with full intent. They had opportunity to compare the variability and caprice of the King’s edict with the predictability and plodding of the Common Law. In the former they saw a monstrous and repeated failure to either safeguard liberty or promote prosperity and in the latter they saw the benefits of granting citizens (by way of the jury box) a means to adjust and focus the imposition of long-established and well-established principles to particular and immediate needs.

If only Common Cause had time to consider the Common Law.

Quarkgluonsoup May 16, 2012 at 3:08 pm

You are wrong about the “Framers”. They didn’t use some grand theory to construct the system they constructed with the goal of a slower law-making process. They copied the only democratic system that existed at the time: the British system (the king couldn’t, as you suggest, make law by edict). They then rationalized it after the fact, mainly against the anti-federalists. The two supposed great champions of the constitution, Hamilton and Madison, didn’t like it at all but concluded it was better than nothing and so wrote the polemics we know as the Federalist Papers.

Steve Smith May 16, 2012 at 7:39 am

Greg is 4/5s right, but the 1/5 is important.
1. Right, the Constitution does not require a simple majority decision rule, but both houses surely assumed that was the required rule (the Common Cause brief does a reasonably good job on the Framers). There is a history to this assumption that is yet to be written. In any case, the real counter-argument is Art I, Sec 5., which implies that the courts should stay out of this matter.
2. Technically, Greg is right that, technically, the Senate passes legislation by simple majorities.
3. I think Greg is off-target here, as is Common Cause. The Constitution implies that the Senate can change its rule at any time (Art I, Sec 5 is not conditioned in any way) AND that a simple majority is empowered to do so. I also think that the best interpretation of Art I, Sec 5 is that the matter of Senate rules is to be left the Senate.
4. Greg is technically right about the pre-1806 motion on the previous question, but his argument is historically selective. The same rule proved to be the basis for a meaningful way to limit debate in the House in the next decade. By dumping the 1806 rule, the Senate could not follow the House path, as many senators noted within a couple decades. In due course, senators like Clay and Webster advocated reinstatement of the previous question rule to deal with southern filibusters of anti-slavery legislation.
5. I favor cloture reform, as have a majority of senators on numerous occasions. Reforms have been blocked by filibusters and the reformers have chosen to live with the consequences rather than take the more radical steps. Greg and a handful of political scientists have said that the decision to live with the filibuster rather than take the more radical steps is evidence that Senate reformers “really” did not have a simple majority for reform. Do not accept this interpretation. This may be, and seems likely to be, a wrong-headed view of how senators choose to operate. Most of us live in organizations in which we could take more radical steps to protest a policy outcome or process but choose to live within the intent of the law and move on to other business. Senators are not much different from the rest of us. That senators choose not to put all rule making up for grabs is not evidence that a majority of senators has “always lacked” a desire for majority rule. This is a bogus claim.

Quarkgluonsoup May 16, 2012 at 3:17 pm

The point on the PQ motion in the house is besides the point. The senate has always had the ability to operate by simple majority-rule, but has chosen not to do so. No PQ motion exists today and yet the filibuster can be eliminated at any time. When cloture was created in 1917, Woodrow Wilson wanted the cloture threshold set to a simple majority, but the senate refused to allow this. If there hadn’t been an unusually skilled politician in the white house and a world war going on, they probably wouldn’t have allowed any cloture rule at all.

The senate hasn’t historically been afraid of majority rule but of change. Henry Clay in the 1820s made the house a relatively efficient legislature where majority parties can force through legislation through party discipline. The same wasn’t done in the senate until LBJ was majority leader.

Jon May 17, 2012 at 7:07 am

“I favor cloture reform, as have a majority of senators on numerous occasions. Reforms have been blocked by filibusters…”

As I understand it, it would be possible for a simple majority to alter the Senate rules by voting on a point of order. Limiting the filibuster in this way is known as the “nuclear option,” and was subject to major public debate just a few years ago.

http://en.wikipedia.org/wiki/Nuclear_option
http://en.wikipedia.org/wiki/Gang_of_14

Rene Haug May 16, 2012 at 12:31 pm

Basically a filibuster is an obstruction of the Senate’s proceedings. By definition, proceedings are basically means and tools designed, decided and used by the members of the US Senate in order to ensure that the Senate’s rights and obligations under the US Constitution are fully respected and implemented. In this sense an obstruction of the Senat’s proceddings like a filibuster is basically the same as any another measure which accelerates debates and the adoption of new bills. An easy way to avoid filibusters is to agree on a fixed time for debate before a bill is introduced into the Senate.

Edward Johanson May 16, 2012 at 11:13 pm

The scope of Article I, Section 5 is a question of law. This litigation is the vehicle to put this question squarely before the Court. Either the Senate can adopt whatever rules it wants, or it must abide by some limits. The Court should determine if and what those limits are.

John November 12, 2012 at 2:13 am

The filibuster allows tyranny of the minority. If the rule isn’t changed, McConnell will continue as the defacto POTUS. I don’t think the Founding Fathers had this in mind for our democracy. 60 votes is not majority rule.

Worden Report December 31, 2012 at 1:32 am

I argue in my essay that if the U.S. Senate is to represent govenments, then there is a basis for needing a supermajority, for otherwise we would have federal encroachment on the states. But this has already happened, and the senators are elected rather than the state leaders themselves or their delegates, in which case as the Senate is presently situated the filibuster should be eliminated rather than merely made slightly more difficult. See http://www.thewordenreport.blogspot.com/2012/11/the-us-senates-filibuster-minoritys-bomb.html at the Worden Report.

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