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The Constitutionality of the Filibuster

Updated: Mar 25

In recent years, congressional gridlock has focused national attention on the Senate’s filibuster. The filibuster is the process by which a minority of Senators delay or prevent a vote on legislation by speaking as long as possible on the Senate floor.

A filibuster is overcome by a cloture motion, which requires three-fifths of the Senate to pass. If the minority party has over forty votes, this cloture requirement allows it to block legislation by preventing a vote on the bill. 


The debate over the filibuster typically centers on its impact on governance. However, a different debate has been simmering in the legal academy for years: is the filibuster even constitutional? The filibuster is not included in the Constitution, nor is it expressly prohibited. 


Defenders of the filibuster stress its extensive history and the Senate’s freedom to determine internal procedure. However, critics assert that it impedes the Senate’s functions as outlined in the Constitution and its importance as tradition is dubious. 

I argue the filibuster in its purest form is constitutional, but it is not the same filibuster we have today. The filibuster in its current form is unconstitutional because it disrupts the Senate’s legislative process as outlined in the Constitution and has feeble historical support.


The text of the Constitution and congressional history suggest that the filibuster as a debate-enhancing mechanism is constitutional. As legal scholar Michael Gerhardt argues, “the filibuster derives its principle authority from the Senate's express power to design its own procedural rules to govern its internal affairs.” 


The filibuster, at its core, continues debate and thus the supermajority requirement for cloture is well within the Senate’s power. The filibuster has a long history dating back to 1806. Despite its potential for abuse, the filibuster, fundamentally a mechanism to continue debate, embodies the Senate’s deliberative nature. 

But the filibusters’ debate-promoting function cannot be disentangled from, and ultimately is overshadowed by its obstructionist implementation. For more than a century, senators have exploited cloture rules to stall Congress or block legislation altogether. 


Filibusters now are less about debate than they are about grandstanding for media attention or simply used for killing time. After exhausting relevant topics, which are rarely genuine efforts for further deliberation, speeches often devolve into unrelated topics, from discussions on salad dressing recipes to recitations of each state’s voting laws. 


At best, today’s filibuster sees senators belaboring well-known objections to bills. At worst, it shuts down debate and stalls the Senate, delaying or blocking legislation. In an even more flagrant deviation from the filibusters’ supposed deliberative function, filibustering today usually does not require debate. Silent filibusters allow senators to block legislation without debate by merely voicing their intent to filibuster, and they expose filibusters for what they are: naked obstruction.


Proponents of the filibuster claim that the Senate effectively affirmed the constitutionality of its cloture rules during every filibuster or cloture motion. However, the persistence of a practice does not legitimize it. This is especially true in the case of the filibuster, as it inherently impedes revision, violating the anti-entrenchment principle. Because a supermajority is necessary to eliminate the supermajoritarian requirement for cloture, a formal change to Senate rules is virtually impossible because the minority party has no incentive to cede power.


While the filibuster is theoretically constitutional, it effectively imposes an unconstitutional supermajoritarian requirement on the Senate rather than promoting debate as its proponents claim. The filibuster’s problems have arisen out of its implementation. If senators genuinely used the filibuster to continue the productive debate and moved to a vote after sufficient discussion, it may pass constitutional muster. 


However, today’s political environment and the long-standing violation of those practices make reinstatement of those norms impossible. Unless the filibuster is drastically reformed to curb its obstructionist implementation and restore its deliberative function, it must be abandoned on constitutional grounds.


Sources


Binder, Sarah A. “The History of the Filibuster.” The Brookings Institution, 22 April 2010, https://www.brookings.edu/testimonies/the-history-of-the-filibuster/.


Coller, Andie. “Filibusters aren’t what they used to be.” Politico, 23 Nov. 2009, https://www.politico.com/story/2009/11/filibusters-arent-what-they-used-to-be-029826.


Kelly, Jon. “The art of the filibuster: How do you talk for 24 hours straight?” BBC News Magazine, 12 Dec. 2012. https://www.bbc.com/news/magazine-20672974.


Reynolds, Molly E. “What is the Senate filibuster, and what would it take to eliminate it?” The Brookings Institution, 9 Sep. 2020, https://www.brookings.edu/policy2020/votervital/what-is-the-senate-filibuster-and-what-would-it-take-to-eliminate-it/.


United States Senate. “About Filibusters and Cloture.” https://www.senate.gov/about/powers-procedures/filibusters-cloture.htm.


United States Senate. “About Filibusters and Cloture: Historical Overview.” https://www.senate.gov/about/powers-procedures/filibusters-cloture/overview.htm.

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