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.

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