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The Filibuster Myth

When Congress resumes later this month, the Senate may finally change its rules concerning the filibuster — the procedure whereby the minority can block legislation from a final vote unless the majority can muster a supermajority of 60 votes.

Published in Boston Review.

When Congress resumes later this month, the Senate may finally change its rules concern­ing the fili­buster­—the proced­ure whereby the minor­ity can block legis­la­tion from a final vote unless the major­ity can muster a super­ma­jor­ity of 60 votes. Senator Harry Reid says he is commit­ted to reform­ing the fili­buster, and several propos­als are already being discussed.

As debate about the Senate fili­buster contin­ues and poli­cy­makers choose sides, a distract­ing, arti­fi­cial contro­versy about the mech­an­ics for chan­ging the Senate’s rules, includ­ing those govern­ing the fili­buster, contin­ues to infect the discus­sion.

Some senat­ors and schol­ars contend that the approval of two-thirds of Senat­ors (67) is neces­sary to change the body’s rules. Whatever the merits of alter­ing the fili­buster, the Consti­tu­tion, Supreme Court preced­ent, Senate history, and demo­cratic tradi­tion make it clear only a simple major­ity (51) is required.

The Consti­tu­tion nowhere requires a two-thirds vote for chan­ging Senate rules and does not even mention fili­busters. The Consti­tu­tion states that “each house may determ­ine the rules of its proceed­ings,” and the docu­ment requires a two-thirds vote only for impeach­ments, expelling a member, rati­fy­ing treat­ies, over­rid­ing pres­id­en­tial vetoes, and propos­ing consti­tu­tional amend­ments. There is simply no reason to believe that the framers of the Consti­tu­tion thought a two-thirds vote could be required for the Senate (or the House) to change its rules. The straight­for­ward infer­ence is that, as a consti­tu­tional matter, only a simple major­ity is required.

Nor does the Senate’s unique role in our feder­al­ist govern­ment justify a heightened bar for rules changes. In the debates about the Consti­tu­tion and in the Feder­al­ist Papers, the framers used the notion of checks and balances to describe the rela­tion­ship of one branch of govern­ment to the other. They did not intend a minor­ity of elec­ted repres­ent­at­ives to serve as a further check or balance within one of the demo­crat­ic­ally elec­ted branches. Further­more, when a fili­buster is used to block votes on laws or pres­id­en­tial nomin­ees, it gives the minor­ity an abso­lute veto, which is hardly a mere check on the major­ity’s will.

Were a super-major­ity neces­sary to change the Senate’s rules, new, demo­crat­ic­ally elec­ted lawmakers would be beholden to past legis­lat­ive choices. The dead hand of a previ­ously elec­ted body—even the 22 senat­ors repres­ent­ing just 11 states that sat in the first Senate in 1789—­would constrain the func­tion­ing of the current one. The Supreme Court recog­nized this prob­lem nearly 160 years ago when it wrote, “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.”

Even vice pres­id­ents have agreed. Although often over­looked, one of the duties of the vice pres­id­ent is to act as pres­id­ent of the Senate, includ­ing issu­ing advis­ory opin­ions about internal Senate proced­ure. Vice Pres­id­ents Nixon, Humphrey, Rock­e­feller, and Cheney all confirmed the inher­ent consti­tu­tional power of a major­ity of Senate members to enact rules changes. As Nixon described it: “The right of the current major­ity of the Senate at the begin­ning of a new Congress to adopt its own rules cannot be restric­ted or limited by rules adop­ted by a major­ity of the Senate in a previ­ous Congress.”

Argu­ments equat­ing the current rules reform effort with the mid-session changes contem­plated in 2005 further miss the mark. As a policy matter, mid-game rules changes should not be easy. In that context, the Senate may reas­on­ably, and consti­tu­tion­ally, adhere to a two-thirds require­ment. But concerns over chan­ging the rules mid-stride are not at issue when rules are modi­fied as the first order of busi­ness in a new Senate.

Unfor­tu­nately, this false debate has created a myth that if the 113th Senate changes the rules with a major­ity vote, it will forever unlock the door to other rules changes by future Senates. But that door was never locked. And while the Senate has only opened that door judi­ciously and infre­quently, it was, and is, always avail­able.