otion appears to have been nothing more than an administrative decision with unintended consequences.
More importantly, perhaps, today’s filibuster simply does not promote debate. It is a used instead to block substantive decision-making. And it is employed constantly, creating a de facto 60-vote requirement for regular Senate business.
This supermajority requirement was plainly not envisioned by the Framers.
To start, the Constitution itself was largely a response to the failings of the Articles of Confederation, our country’s first set of laws. The Articles of Confederation required a supermajority vote to legislate in several areas — like coining money, appropriating national funds, and determining the size of the army and navy. As a result, gridlock was common. Alexander Hamilton, reflecting on this failure, noted that while supermajority requirements were supposed to add stability to government, “its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure … of an insignificant, turbulent, or corrupt [faction] [for] the regular deliberations and decisions of a respectable majority.”4 Sound familiar?
So in drafting the new Constitution, the Framers decided that a supermajority vote was appropriate only in seven extraordinary situations — which they specifically listed. For example, a two-thirds vote is needed to override a presidential veto, to expel a member of the Senate, or to convict a federal officer of an impeachable offense. For ordinary business, on the other hand, the Framers clearly anticipated the use of majority voting rules.
To be clear, the Constitution does not expressly order the everyday use of majority voting. But there are clues that allow us to be quite confident about the Framers’ intent. For one, the Constitution specifies that a simple majority “shall constitute a Quorum to do Business.” And the Constitution designates a tie breaker — the vice president only has a say when votes are equally divided. A tie vote is only consequential if a simple majority will ultimately win.
The Constitution states that a bill must “pass” the Senate and the House before it may be enacted into law. As legal scholars have forcefully argued, the term “pass” — like the term “elect” — embodies a principle of majoritarianism that binds both chambers with equal force.5 This makes perfect sense — after all, that is how we still understand the plain meaning of those terms today.
Finally, opponents regularly try to quash discussions of reform with a constitutional “trump” card — they claim, to quote The Wall Street Journal, that “without the ability to filibuster, the Senate would become like the House, able to pass whatever the majority wants.”6 In their view, the filibuster is necessary for the Senate to play its proper role in the bicameral system.
In fact, the modern filibuster regularly derails the proper working of Congress. After all, if the Senate is gridlocked, the House’s legislative accomplishments become largely meaningless.
Appropriations bills are a prime example. By constitutional design, these bills originate in the House before moving to the Senate for amendment. Although the House regularly submits these measures in a timely f
ashion, the Senate consistently fails to enact them by deadline.7 One large reason for this failure is the self-perpetuating pattern of an increasing number of filibusters and a growing workload8 — as a result, even many uncontroversial legislative items never reach the Senate floor.
More generally, there is reason for serious constitutional concern when a group of 41 senators can exercise a minority veto over the entire legislative agenda. This disrupts the system of checks and balances built into our governmental structure. The result may be the infringement of another branch’s power — this is what happens, for example, when the president is prevented from filling key executive positions. Or Senate gridlock may lead to an expansion of power in the other branches as they are allowed to operate unchecked. Either way, 