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The Damages of the Filibuster and the Constitutional Solution

In popular culture, television shows and movies often portray a caricature of a senator,
standing at a podium reading a cookbook or Dr. Seuss. This dramatization of the Senate
strategy of filibustering is not far off. In a filibuster, a senator uses his ability for endless debate
to delay a vote on legislation in the hope that the bills sponsor will take it off the floor. Over the
past 25 years, the increased frequency of filibusters in the United States Senate has prevented
the government from satisfactorily enacting legislation. The current defence against the filibuster
in the Senate is known as invoking cloture, which limits debate, but invoking cloture can be
difficult and costly in both time and political leverage. The increased frequency of the filibuster in
the United States Senate prevents important legislation from being passed through filibusters
and slowing techniques. In order to mitigate the increased frequency and party influence of
filibusters, the Senate should use the Constitutional Option for Senate reform to remove the
three-fifths supermajority requirement for cloture, thus allowing for increased Senate
productivity.
The filibuster is a tactic used in delaying the passage of a bill and is a product of what
the senate rules do not say rather than what they do say. Taken from the ability for endless
debate in the English Parliament, (When) the Founding Fathers (outlined senate procedures,
they) intentionally left out a time requirement on debate (because of the inability for endless
debate in the English Parliament). The only rules regarding Senate debate concern how a
senator may enter into debate. A senator must address the presiding officer, and then the
senator is given the floor. Once a senator has the floor, Senate Rule XIX states, no Senator
shall interrupt another Senator in debate without his consent (Rules). The combination of a lack
of a Senate rule on the length of debate and the inability for a senator in debate to be
interrupted led to the formation of the filibuster in the Senate.

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During the time of the Civil War and the following years when the responsibilities of
Congress began to grow rapidly, the delays caused by filibusters prevented the Senate from
properly performing its Constitutional duties. In response to the major delays caused by these
filibusters, Senate Rule XXII was passed in 1917, establishing cloture. A successful cloture vote
establishes a one-hour time requirement on Senators in debate and a requirement that all
amendments to a bill must be germane in nature. To be germane in nature, an amendment must
be strictly related to the bill. The current, amended process of cloture begins when 16 Senators
bring a petition to the presiding officer to close debate. The Senate must then wait two session
days to vote on it, and with a three-fifths majority, debate becomes limited to one hour per
Senate with a maximum of thirty hours of debate (Rules). Nearly one hundred years ago,
Senators realized that the vision of the Founding Fathers for unlimited debate was no longer
obtainable because of the extreme delay caused by multiple filibusters.
The 1917 Senate created the early version of a restriction on debate, but the legislature
has again outgrown those rules due, again, to the ever increasing workload of Congress. The
number of legislative measures affected by filibusters or filibuster threats has increased steadily
each successive Congress, from eight percent in the 1960s up to 70 percent in the 2007
Congress (Arenberg 29). Due to the increased use of filibuster in the Senate, in 1975, the
Senate amended Rule XXII by lowering the required number of votes needed to invoke cloture
from two-thirds to three-fifths of all Senators duly sworn in. This rule change allowed bills to be
more easily passed through the Senate. However, the use of the filibuster has continued to
increase. In 2007, there were 112 bills filibustered by the minority party, but that does not
encompass all the bills that were not passed that year because of filibusters. In the modern
Senate, over half of potential bills that would be presented to the floor are affected by the
filibuster. For the Senate to return to performing its constitutional duties, the Senate must once
again lower the votes required to invoke cloture.

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A major bill that most likely would have been enacted into law if the filibuster was limited
in the Senate is the Paycheck Fairness Act, which would have made it much easier for women
to express concerns about unequal pay in their workplace. The Paycheck Fairness Act would
have required employers to show that unequal pay between men and women was due to
differing responsibilities and not just gender. This bill easily passed its vote in the House, but it
was filibustered in the Senate the two times that it was brought to the floor for a vote
(Matthews). Even though popular opinion leans toward equal pay for men and women, the
Republicans in the Senate blocked the bill in order to limit regulation on businesses.
The increased used of the filibuster causes the Senate to be bogged down in debate and
this decreases the number of bills that can be passed each session. In one fully drawn out
filibuster with a cloture motion passed, Rule XXII would require that the vote on final passage
[of the bill] occur on what would be the 11th day of consideration, or the 15th calendar day after
the motion to proceed was made (Kura 135). This two week delay in Senate proceedings
makes the sponsors of even the most popular bills cautious when presenting a bill to the floor.
There is a difficulty in counting measures killed by filibusters because not all bills affected by a
filibuster were debated on themselves. There are measures that died at the end of a Congress
because delays created by filibusters on a measure made it impossible for the Senate to act on
them, and these bills are often ignored when counting bills affected by a filibuster in a
Congressional session (Binder 132). The amount of time wasted by a filibuster and the amount
of legislation that is not even presented to the floor for debate because of a filibuster threat
prevent the Senate from considering all of the bills that the country may need.
Although the increased use of filibuster can mostly be attributed to the bills put on the
floor, some filibusters are performed for party strategy instead of policy views. On more than
one occasion, the minority party has deliberately slowed Senate action in order to reduce the
productivity of the majority. Such is the case in 1987, Having just fallen to minority status after

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six years in the majority, Senate Republicans soon became frustrated by their inability to
influence policy and decided to exploit more fully their parliamentary prerogatives (Binder 148).
The Republican Party misused their ability for endless debate in response to their newfound
lack of power, rather than for policies in legislation. The Republican Partys plan may have
stemmed from their inability to affect legislation; however, there is a second strategy involved.
This strategy is to reduce the productivity of the majority in order to contribute to the impression
that the majority party cannot govern. This perceived inability to govern will increase the minority
partys chances for success in the next election, which may put them back into the majority.
These two tactics illustrate how the filibuster has transformed far from the Founding Fathers
original belief that endless debate should be part of the Senate in order to protect minority
rights. The filibuster is now being used as a campaign tool for the next election and as a petty
reaction to being voted out of the majority.
In order to limit the ability of the minority to employ political strategies, the Senate should
use the Constitutional Option for Senate reform to lower the voting requirement to invoke cloture
to a simple majority. The Constitutional Option for Senate reform draws its merits from two
separate sources. The first is a Supreme Court Ruling that upholds the idea that no Congress
can make laws that bind its successors. Because of this decision, every rule, law, or
amendment is able to be changed in the future if a new Congress chooses to do so. Thus,
Senate Rule XXII is able to be changed in future Senates, much like it has been changed by
previous Senates. The second source is from the United States Constitutions Article 1 Section
5, which states that each House may determine the Rules of its Proceedings (Constitution).
This constitutional clause allows for Senate Rule XXII to be changed by a non-debatable,
majority vote. These two sources allow for the amendment of Senate Rule XXII, without the
possibility of a filibuster, to take place at the beginning of a session of Congress. This rule

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change can then be used to lower the vote needed to invoke cloture to a simple majority, which
will counteract the increased use of filibuster in the modern Senate.
Not everyone believes in the Constitutional Option for Senate reform, and those
opposing rules reform often cite the continuing body theory. The continuing body theory states
that since members of the Senate stand for election in staggered six-year terms, with only onethird standing for election every two years, there is never a new Senate, just one legislative
body that continues on indefinitely (Udall). The staggered election allows for a quorum to always
be present in the Senate, which means that a vote can always take place in the Senate, so the
Senate never stops. This principle of continuity concludes that the Supreme Courts ruling that
each legislature must have the same powers as its successors does not apply to the Senate
because there has only ever been one continuous Senate session. Therefore in each new
Congress, the Senate must adhere to the previously established rules for its proceedings. So in
any effort to reform a Senate rule, the Senate must adhere to the part in Rule XXII which states
that invoking cloture on Senate rules changes requires a supermajority. This supermajority
requirement will hinder any attempt to overcome a filibuster and will continue to inhibit changing
Rule XXII. Without the lowering of votes needed for cloture the use of filibuster will continue to
increase and bills, such as the Workplace Fairness Act, will continue to be delayed. (Matthews)
The continuing body theory has been debated on by many scholars and there are those
who question its legitimacy. In a paper published in the Iowa Law Review, Andrew P. Bruhl
argues the merit of the continuing body theory. In response to the Senate being a continuous
body due to the staggered election of Senators, he says I do claim that if we ask ourselves
what makes the Senate the same entity (or not) over time, we should in all candor admit that
overlapping terms are not determinative. He asserts this claim based on the position that many
other things that are continuous do not have overlapping membership, such as bands who
break up and get back together. Many people will say that it is the same band even though the

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continuous membership requirement was not satisfied. Although the Senate is not a band, it
loses and gains new members every two years and cannot be called the same Senate any
longer. Therefore, continuous membership is not a requirement for a continuing body and
cannot be cited as evidence of one. If continuous membership cannot be credited as the reason
a body is continuous, then the Constitutional Option for Senate reform is still a valid way to
reduce the amount of filibusters in the Senate.
If true reform limiting the use of filibuster does not occur, based on the rate in which bills
are increasingly bogged down, it is likely the work of the Senate will be completely stymied by
the minority party. Reform is obviously needed. Lowering the number of votes required to invoke
cloture to a simple majority vote is one solution but must be done in a way that does not
completely stifle the minority party. Debate on and subsequent passage of legislation must
continue in order for the government to function. To do so, Congress must be free to enact
legislation that respects the limitations of the minority party without giving them power over the
majority party. The constitutional option of Senate reform can accomplish this goal.

Works Cited
1. AaronAndrew P. Bruhl. Burying the Continuing Body Theory of the Senate. Iowa Law
Review. April 13, 2015. Web
2. Arenberg, Richard A. Dove, Robert B. Defending the Filibuster: THe Soul of the Senate.
binder Indiana University Press. Bloomington, Indiana. 2012. Print.
3. Binder, Sarah A. Smith, Stevens S. Politics or Principle? Filibustering in the United States

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Senate. 1997. Washington, D.C. The Brookings Institute. Print.
4. Kora, N.O. Congress of the United States: Powers, Structure, and Procedures. Nova Science
Publishers, Inc. Huntington, NY. 2001. Print.
5. Matthews, Dylan. 17 bills that likely would have passed the Senate if it didnt have the
filibuster. The Washington Post. December 12, 2015. Web. April 13, 2015.
6. Rules of the Senate. How Congress Works. April 6, 2015. Committee on Rules and
Administration. Web.
7. Wawro, Gregory J. Schickler, Eric. Filibuster: Obstruction and Lawmaking in the U.S. Senate.
Princeton university Press. Princeton, NJ. 206. Print.
8. Udall, Tom. The Constitutional Option to Reform the Senate. April 13, 2015. Web.