The Senate Filibuster Is Unconstitutional

• Published date: 07 April 2021
• Subject Matter: Government, Public Sector, Constitutional & Administrative Law
• Law Firm: Arnold & Porter
• Author: Kirk Jenkins

More and more in recent years, a single word has dominated news coverage of the United States Senate: filibuster. The word evokes images of non-stop talkathons and nothing getting done.

Although so-called "speaking filibusters" are almost entirely a thing of the past, there's considerable support for the impression of gridlock. The 116th Congress was the least productive in 50 years; only 194 bills were passed by both houses and signed into law as of December 4, 2020.

For most of the history of the Senate, filibusters have been exceedingly rare, but no more. Mitch McConnell's tenure as Senate majority leader accounts for 28.61% of all motions for cloture (the parliamentary motion used to end a filibuster); 43.4% were successful. His tenure as Senate Republican Leader - both Minority and Majority - accounts for 57.1% of all cloture motions since 1917, of which 75.58% were successful. The 117th Congress has been in business for only a little over two months, and there have already been eleven cloture motions and nine cloture votes - all successful.

The Senate Rules. Two Senate Rules govern the filibuster. According to Rule XXII.2, sixteen Senators are required to sign a cloture motion. "[I]f that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn - except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting," then cloture has been adopted. One would think that after a cloture motion expressing "the sense of the Senate that the debate shall be brought to a close," the Senate would proceed immediately to a final vote. Not exactly - the debate continues, but only for thirty more hours.

The second rule that is important to keep in mind for understanding the filibuster is Rule V.2, which provides that Senate rules "shall continue from one Congress to the next Congress unless they are changed as provided in these rules." In other words, a motion to amend Rule XXII and abolish the filibuster can itself be filibustered.

Critics of the filibuster have repeatedly pointed out that given how commonplace the maneuver has become, the rule establishes a de facto sixty-vote threshold for anything to pass the Senate, a thoroughly inefficient and indeed anti-democratic (small "d") state of affairs. But there is a more fundamental problem with the filibuster.

The Senate filibuster is unconstitutional.

The Plain Language of the Constitution. This is evident first and foremost based upon the plain language of the Constitution. According to Article I, Section 3, "each Senator shall have one vote." But as long as the filibuster is in place, any action - even proceeding to debate a bill - can be prevented by only 41 of the 100 Senators. A partisan Republican filibuster could be carried out by Senators representing only 22.01% of the nation's estimated 2019 population.¹ A partisan Democratic filibuster would require the votes of Senators representing only 31.85% of the population.² This state of affairs reduces the claim that all Senators have an equal voice to a meaningless formality. The provision in the Seventeenth Amendment that "each Senator shall have one vote" is equally violated by the filibuster.

Later in Section 3, the Founders provided that "The Vice President . . . shall have no vote [in the Senate], unless they be equally divided." But if any Senate action can be blocked by a mere 41 Senators, then the Senate can never be "equally divided" except in a vote on final passage taken after cloture is successfully invoked, when the result is a foregone conclusion.

Article I, Section 5 provides that "a majority of each [house of Congress] shall constitute a quorum to do business." Given that - as we shall see below - the contemporary understanding of Founders was that a majority of a quorum was sufficient to act, this...