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The Filibuster is Unconstitutional

Emmet Bondurant is one of the best business lawyers in the country, but now he’s suing to change the country. Bondurant is convinced that the filibuster is unconstitutional, and along with Common Cause, he wants the Supreme Court to abolish it.

In fact, the filibuster was a mistake that has grown like a cancer. Proof that it was a mistake comes from the fact that the founders debated whether to require a supermajority to pass legislation in Congress, but explicitly rejected that idea. Alexander Hamilton savaged the idea, saying “its real operation is to embarrass the administration, to destroy the energy of government and to substitute the pleasure, caprice or artifices of an insignificant, turbulent or corrupt junta, to the regular deliberations and decisions of a respectable majority.” Sound familiar? James Madison of requiring a supermajority that “the fundamental principle of free government would be reversed.”

The Constitution clearly states 6 (and only six) instances when a supermajority is required: impeaching the president, expelling members, overriding a presidential veto, ratifying treaties, and amending the Constitution. It also provides for the Vice President to break ties, clearly indicating that 51% should be the number for passing legislation. But today, a supermajority is required to pass virtually anything. How did that happen?

In 1806 the Senate was cleaning up their rule book, which had grown complicated and redundant, and they eliminated a rule that was used to end debate. Aaron Burr recommended getting rid of the rule because it was almost never used, and besides, senators were gentlemen who knew when to stop talking.

Not any more I guess.

Even after the rule was eliminated, the first filibuster didn’t happen for another 30 years. In the 60 years after that one, it was only used 16 times. But the number of filibusters skyrocketed starting in the 1970s, as partisanship heated up. The figure shows the number of times motions were filed to end a filibuster:

While both parties are guilty of using excessive filibusters, the GOP has clearly taken it to insane levels, in their campaign (as Hamilton put it) to “embarrass the administration”.



  1. Jeff wrote:

    Filibustering works to the advantage of the GOP, especially with the current base that it has. They get to say that they are stopping government from becoming too big, then they get to complain that government is incompetent for not getting anything done and that it’s the President’s fault for “gridlocking” Congress. For the party that totes small government as part of its platform, the filibuster is a great tool when they are not in the White House. Never mind that overusing it creates stagnation and ineffectual governing; to them, that makes it all that much better.

    Monday, May 21, 2012 at 9:58 am | Permalink
  2. PatriotSGT wrote:

    I have mixed feelings on this. While I agree that the numbers have risen to dramatic levels, I’m not convinced this is a completely bad thing. I’m thinking that if the roles were reversed and there was a red majority in both houses and a red president and they decided to pass legislation that the other side thought not good would the feeling be the same. For instance, suppose a red majority takes power this fall and their first order of business is to take away collective bargaining rights for all unions, followed by dismantling the HCR act, followed by abolishing all welfare, would we not want the minority to filibuster the heck out of every step to slow them down?

    I don’t know, just thinking. Now I might be in more favor of making all bills about 1 thing, excepting some emergency omnibus legislation. IMO alot of the add-ons to a major pieces of legislation ends up being the sticking point and both sides are guilty. For instance a defense spending bill should just have defense spending and nothing else, not like the defense spending of a few years ago where they included defense and everything else sometimes including the kitchen sink.

    I’m just not convinced that silencing the minority is necessarily a good idea and when the tables turn (and shows it likely) will it still be thought of as a good idea?

    Monday, May 21, 2012 at 10:37 am | Permalink
  3. TENTHIRTYTWO wrote:

    It seems like the question you are asking is, “isn’t it a good thing that the parties are working against each other rather than with each other?” I would ask you to consider your opinion in light of that statement.

    In my mind, the purpose of the filibuster is to promote compromise. In that, should the majority party decide to act on its own, the minority party can still be heard. It encourages the majority to still listen to the minority…after all, the minority still represents a large portion of America.

    From my vantage point, that is no longer how it is being used. The D’s have attempted to compromise with the R’s, and in spite of that (sometimes even after the D’s *have* compromised), the R’s are still acting as a blockade. The filibuster is being used to simply prevent the D’s from passing anything. Hence why this congress has a record low number of actions that they’ve managed to pass.

    This behavior is inexcusable. It is infantile. And it is dangerous.

    I will say with absolute conviction that were the D’s to use the filibuster in the same manner, I would vote every one I could out of office.

    Monday, May 21, 2012 at 12:09 pm | Permalink
  4. Jeff wrote:

    I agree with you, 1032. @Patriotsgt, I think that the difference between your example and what’s really happening is that the GOP is filibustering bills that fall under the basic operation of government. They are filibustering things that are not even remotely controversial. Look at what they did with the VAWA bill. They blocked a simple, unifying piece of legislation so that they could turn it into political cannon fodder. They have even gone so far as to filibuster their own bills just to make a statement.

    Monday, May 21, 2012 at 12:53 pm | Permalink
  5. PatriotSGT wrote:

    I agree with both Jeff and 1032 – 1032 you said what I was thinking much better then I did. As for the filibustering of regular normal business I completely agree it should not be done. That brings us to another question I might have is what is considered normal business, how do we define that and how can we give it parameters for proper labeling. If we can then we could possible have non-filibuster legislation, ie. Those things which aren’t creating/abolishing new laws, bureaucracies or institutions like the creation of DHS, Patriot Act or HCR. All others should be subject to filibusters in my mind.

    Monday, May 21, 2012 at 4:40 pm | Permalink
  6. Iron Knee wrote:

    If we keep the filibuster, there has to be some way to limit its use. Kinda like how the president can use recess appointments when Congress won’t act, but the recess appointment is only good for a fixed period of time, then it has to be revisited.

    But to be honest, I wouldn’t miss the filibuster that much if it went away. If it is abused, then vote the jerks who abuse it out of office. As 1032 says, the filibuster is supposed to protect the minority, but the tables have turned. Someone has to protect the majority from the tyranny of the current minority.

    Monday, May 21, 2012 at 4:57 pm | Permalink
  7. Michael wrote:

    Two words: nuclear option.

    Monday, May 21, 2012 at 6:11 pm | Permalink
  8. dennis wrote:

    30 years, 26 bars, 13 labels ! Who created this chart, Congress?

    Monday, May 21, 2012 at 8:17 pm | Permalink
  9. John wrote:

    A couple of points. @Dennis actually it is 52 years with a bar for each Congressional session (26) and a label for every other year (13) – no inconsistencies.

    I have thought that bills should be limited to a single issue for a long time. Just to either add something that would not stand on it’s own merits or is a “pet project” of a single legislator should not be allowed.

    The comment to vote the rep. out is easier said than done when the voters are either too uneducated, apathetic or misinformed. The incumbent has a huge advantage over a challenger in terms of name recognition, funding and organization.

    Tuesday, May 22, 2012 at 8:22 am | Permalink
  10. PatriotSGT wrote:

    John – you hit the nail on the head with your last comment on why we can’t vote the bums out so easily.

    Tuesday, May 22, 2012 at 11:02 am | Permalink