Failibuster: a Constitutional Question

Years of criticism of the filibuster have finally come into fruition: a nonprofit, Common Cause, sued the Senate this Monday regarding the constitutionality of filibuster rules that need mandatory routine 60-vote thresholds for any bill or nomination that generally have the support of the majority of the Senate anyway. In other words, Common Cause argues that the Constitution details the supermajority requirements for all legislative action (i.e. two-thirds vote for treaties/removal/expulsion/Constitutional amendments), thus making the 60-vote threshold is an unnecessary obstacle to passing legislation.

To critics' eyes, this lawsuit could not have come at a better time. The Senate is once again stuck in partisan gridlock, with complaints of abuse by minority Republicans of the filibuster. Both Democrats and Republicans employed the filibuster from 1981 to 2006, but 2006 to the present marks an unprecedented filibustering by the Republicans, averaging at 140 motions for cloture in the 110th and 111th Congress.


Most efforts to reform the filibuster in the past have floundered due to the fact that two-thirds of the Senate must agree to change any Senate rules. Thus, a Supreme Court decision ruling filibustering unconstitutional might be the only method by which the filibuster can truly be stricken from American politics. However, is the lawsuit valid?


Dr. Gregory Koger, a political scientist in the United States who specializes in studying filibusters (filibustology?), argues that no, the lawsuit is not valid. He believes the filibuster is constitutional for a whole host of reasons, the most notable of which I will summarize. (Interestingly enough, Koger would not even want the filibuster to be outlawed.)

• He notes that "Each House may determine the rules of its proceedings." Congress' discretion over its procedure seems concrete in the Constitution.
• Both the House and Senate use supermajority rules in many procedural threshold requirements to suspend rules, increase taxes, waiving the Budget Act, etc. If the cloture threshold is found to be unconstitutional, these practices will cast doubt over the validity of legislation enacted under these terms.
• Filibustering, while infamous, is not the only manner in which Senators can obstruct a vote. Declaring filibustering unconstitutional will not change the intent of particularly stubborn Senators.
• The Constitution does not mention a Congressional committee system, which both houses currently have in place. Said committees kill 70-90% of all bills in Congress before they even reach the floor. Koger argues, if filibustering is facing charges of unconstitutionality, why not also outlaw Congressional committees?
• While time is not a factor in the constitution, the simple fact that the filibuster has been a part of American politics since 1789 works in its favor. Just because the filibuster--like political parties, interest groups, primaries, etc.--has not been explicitly allowed in the Constitution does not mean it is unconstitutional.

How do you feel about this lawsuit and, more specifically, the constitutionality of the filibuster? Do you even think that this lawsuit will come to court? Keep in mind that the case may be dismissed as a "political question," as the employers of the filibuster have been almost exclusively minority Republicans. Furthermore, Common Cause wins and the filibuster is exterminated from the Senate, will the cogs of the Senate suddenly become unclogged and begin to work again? Or will senators find other ways to prevent votes? 

Koger explains:

"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."