The filibuster is unconstitutional.
Our Founding Fathers spoke against requiring a supermajority threshold to pass regular measures in Congress, yet the erroneous practice continues today via the filibuster. Current Senate practice reaches beyond our Founders’ original plan that a supermajority vote was only to be used for the five instances listed in the Constitution and two instances listed within the Amendments, according to CRS. Those who advocate for the filibuster are invoking the symbolism of protecting “history” when all they are actually protecting is an unconstitutional tradition.
The Constitution specifies a very limited number of times when a supermajority vote is necessary: amending the Constitution, overriding vetoes, convicting impeached officials, ratifying treaties, and expelling Members of Congress. The 14th and 25th Amendments also allow for a supermajority vote to remove individuals deemed unfit to serve from office.
The filibuster is nowhere listed in the Constitution, and the supermajority vote to overcome it was an accidental creation. That’s right, the biggest impediment to delivering on the mandate handed to the House, Senate, and White House by the American people is an accident that we have turned into tradition.
In 1805, Vice President Aaron Burr advised the Senate to get rid of the “previous question” motion that allowed a simple majority to end debate. After the Senate followed Burr’s advice, Senators inadvertently left themselves without a means to end debate through only a simple majority vote (half plus one). The groundwork was then laid for the first recognized filibuster to occur in 1837, almost 50 years after our Constitution was originally ratified and a year after the last surviving signer of the Constitution, James Madison, passed away.
This accident, the filibuster, is in direct contrast to the wishes of our Founding Fathers. In the Federalist Papers, our Founders were explicit that requiring agreement from a supermajority had been detrimental to our governance under the Articles of Confederation from 1781-1789.
As Alexander Hamilton wrote in Federalist No. 22, while requiring a supermajority “two-thirds” vote for passing normal measures might, “at first sight … seem a remedy, is, in reality, a poison. To give a minority a negative upon the majority … is … to subject the sense of the greater number to that of the lesser.” Hamilton lists this “poison” as an essential reason for getting rid of the Articles of Confederation. Hamilton notes in particular that a supermajority vote is designed “to embarrass the administration, to destroy the energy of the government, and to substitute the … decisions of a respectable majority.”
Father of the Constitution, James Madison, also warned against a voting threshold of “more than a majority” in Federalist No. 58, writing that if Congress were to consistently enforce such a threshold, “the fundamental principle of free government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority.”
Thomas Jefferson advocated for certain two-thirds voting among the seven allowances listed in the Constitution, but he wrote to James Madison in 1787 that “it is my principle that the will of the Majority should always prevail.” Yes, our Founders wanted minority rights protected, and they feared the “excess of law-making,” but their remedy was our Constitution’s unique presidential veto authority, as outlined in Federalist No. 73, writing that “The injury which may possibly be done by defeating a few good laws, will be amply compensated by the advantage of preventing a number of bad ones.”
The filibuster is an accident turned into tradition resurrected from the ashes of the Articles of Confederation. Our Founders were purposeful in forming the Constitution and intentionally limited the times when they deemed a supermajority necessary to pass legislation. The filibuster is causing gridlock in Congress that’s stopping important legislation from getting passed. The American people are now frustrated that despite handing Republicans a majority in Congress and the White House, we are unable to execute on a mandate.
Many cite Article 1, Section 5 of the Constitution, in which the House and the Senate are each granted the authority to “determine the Rules of its Proceedings,” as a defense of the filibuster. Commonsense dictates that this does not mean the Senate can create rules that go against or expand the authorities given to them by the Constitution, but rather that they can create their own rules as they align with our Founders’ intentions. Senate rules on supermajority voting should not supersede the clear intent of the voting threshold established by our Founders.
Between 1837 and 1975, the Senate expanded the voting threshold to a two-thirds supermajority vote (today, 67 Senators) to invoke cloture, thereby ending filibuster debate. Since 1975, the filibuster has required a three-fifths supermajority vote (60 Senators) to end debate on most legislation. During this same time frame, the talking filibuster morphed into a silent filibuster where Senators can delay debate by simply signaling their intent to object rather than actively having to stand on the Senate floor and continuously raise points of objection.
We must stop allowing the tyranny of the few to overpower the will of the majority. It’s time to call the filibuster what it is: an unconstitutional accident.
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