• The Heritage Network
    • Resize:
    • A
    • A
    • A
  • Donate
  • Four Myths about the Filibuster

    There are four myths about the filibuster that you will hear over and over again. These myths are needed to justify any attempt to change the Senate’s rules with a simple majority vote. This is a power grab, pure and simple.

    The fact of the matter is that the explicit words of the Constitution, the Senate’s written rules, and the history of the Senate show that the filibuster was created for good reason. Extended debate and unlimited amendment is part of the fabric of the institution.

    Myth #1: The filibuster is unconstitutional.

    The Constitution empowers the House and Senate to establish rules of procedure. Article I, Section 5 of the Constitution states that “each house may determine the rule of its proceedings.” This provision in the Constitution empowers the Senate to make rules governing debate. The Senate in 1917 established the cloture rule requiring a two-thirds vote of all Senators present to shut down debate. Senate Rule 22 today states that “invoking cloture on a proposal to amend the Senate’s standing rules requires the support of two-thirds of the Senators present and voting.” The clear letter of the Senate’s rules mandate a supermajority vote to shut down debate on any change to the Senate’s rules.

    Myth #2: The filibuster was created by accident.

    On numerous occasions, the early Senate rejected rules changes that would have limited debate. According to John Quincy Adams’s memoir, Vice President Aaron Burr advised the Senate in 1806 that the move the previous question motion was not necessary for the Senate. The Senate deleted the motion after a discussion of the issue by the Vice President and finalized when the rules were codified for the Senate later the same year. The opponents of the filibuster would like to characterize this as an oversight by the Senate, yet future attempts to eliminate the filibuster were resisted by Senators. According do Senator Robert C. Byrd’s The Senate, 1789–1989, “Henry Clay, in 1841, proposed the introduction of the ‘previous question’ but abandoned the idea in the face of opposition.” Byrd also wrote that “when Senator Stephen Douglas proposed permitting the use of the ‘previous question’ in 1850, the idea encountered substantial opposition and was dropped.” According to Byrd, “An effort to reinstitute the ‘previous question,’ on March 19, 1873, failed by a vote of 25–30.” Byrd cited the following: “Between 1884 and 1890, fifteen different resolutions were offered to amend the rules regarding limitations of debate, all of which failed of adoption.” It is clear from the early history of the Senate that the filibuster was not merely an accident of history; it was a design by early Senators. Senators had numerous opportunities to change the rule. They did not.

    Myth #3: The Senate is not a continuing body.

    The Senate’s rules memorialize the fact that the Senate is a continuing body. Senate Majority Leader Lyndon B. Johnson’s (D–TX) compromise proposal in 1959 memorialized the idea that the Senate is a continuing body. Rule XXII was amended to reduce the required vote for cloture to “two-thirds of the Senators present and voting,” and, in order to assuage the worries of Senators who opposed the constitutional option, a new clause would be added to the Senate Standing Rules: “The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.” The Senate’s rules confirm that the Senate is a continuing body and that it takes a two-thirds vote to shut off debate on a rules change. A strong case can be made that the actions of liberals in the Senate to do away with the filibuster are unconstitutional.

    Myth #4: The Senate can change rules only on the first day of the new session by a simple majority vote

    The Senate can change rules with a simple majority vote but only after shutting debate down on a rules change by a two-thirds vote. As the Senate Web site explains: “To foster values such as deliberation, reflection, continuity, and stability in the Senate, the framers made several important decisions. First, they set the senatorial term of office at six years even though the duration of a Congress is two years. The Senate, in brief, was to be a ‘continuing body’ with one-third of its membership up for election at any one time.” Senator Leverett Saltonstall (R–MA) argued in 1957 that “there never is a new Senate; there is merely a change in one third-of its members.” The Senate’s Rule 5 states, “The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.” The left claims that new rules are not adopted until the Senate operates under new rules. This claim is simply not true, because the Senate is a continuing body.

    A Simple Power Grab

    We are going to hear many convoluted arguments to justify the extraordinary actions of Senators to change the filibuster rule with a simple majority vote. But don’t buy it. This is a power grab, because the act ignores the constitutionally authorized strict rules of the Senate.

    Posted in First Principles [slideshow_deploy]

    9 Responses to Four Myths about the Filibuster

    1. Edward, Wisconsin says:

      I would just like to point out that the main Democratic proposal on filibuster reform that was unveiled today–sponsored by Sens. Harkin, Merkley, and Udall is actually quite modest and incremental. The 60 vote threshold needed to pass legislation through cloture does not change at all. And what's wrong with actually making the minority hold the Senate floor if they want to filibuster? That's how almost every American thinks the filibuster currently works anyway.

      The other reforms simply seek to expedite the Senate's excruciatingly slow procedural process. Often routine daily business of the Senate cannot even get done because there isn't enough time. Thus, often minor legislation and nominations which could easily garner 60 votes are thrown overboard because the majority leader doesn't want to waste a week to a week-and-a-half of Senate floor time just to pass some obscure piece of legislation, or confirm a judicial nominee (which is generally how long the minority can drag out legislation or nomination votes, even if the 60 votes are there to pass the legislation or confirm the nominee).

      The Democrat’s idea to eliminate the minimum of 30 hours that must pass between a cloture vote and a final vote for executive branch nominations is a great idea, since it will help to reduce the ridiculous logjam of executive branch nominees that have been waiting forever to receive a vote on their nomination.

      Eliminating filibusters on the motion to proceed to debate also makes perfect sense, since it's absurd that a piece of legislation should automatically die if it doesn't have 60 votes right away, before there is even time to debate it. Currently, supporters of a bill that doesn't have 60 votes right away cannot even get the Senate to debate their bill on the floor, and thus are not given the opportunity to gain new supporters of the bill through open debate. Finally, eliminating secret holds is an idea that even many Republicans support, because it is clearly an affront to transparency.

    2. Bobbie says:

      The filibuster protects the people! It doesn't surprise me that democrats aren't doing the job of protection to the people they lead. Democrats would rather rush everything they didn't do and make the people suffer the consequences.

    3. Pingback: The Cloakroom » Behold the Power of Senator Reid: A Day is More Than 24 Hours and Rules Are Meant for Little People

    4. Pingback: So Called Constitutional Option Is A Trick | RedState

    5. Pingback: So Called Constitutional Option Is A Trick

    6. bubba says:

      What is the vote threshhold? 2/3 or 3/5 ? 67 or 60 makes a big difference in an almost evenly split Senat……

    7. Marie, Cape Coral says:

      As I see it, this attempt at yet another power grab by Reid is a result of the increased number of Republican senators elected in November. In order to pass any legislation, the Democrats would now have to peel away more than two or three Republicans to pass their agenda. Reid realizes that will be close to impossible to achieve. So what to do? Change the rules by any means necessary. The man is, without a doubt the most dishonest, sleazy person in Washington IMHO. He saw the results of this past election and he is terrified of what it means to his power. All I can say is wait until 2012–he will lose his position as Majority Leader and see all of the legislation he jammed through against the will of the people repealed.

    8. Edward, Wisconsin says:

      @Bubba: The vote threshold to successfully invoke cloture and cut-off a filibuster is currently 60 (3/5), and will continue to stay at 60. As you would know if you follow the Senate closely, pretty much everything in the Senate (with the exception of budgetary bills passed through the arcane process of reconciliation) need this 3/5 majority vote in order to pass. The Democrats may attempt to change the rules with a majority vote, but any rule changes that they are able to get passed will not change the default 3/5 vote that is needed to pass legislation, and confirm nominees.

    9. bubba says:

      Thx Edward..,

      I've read multiple references to "super-majority" and "2/3 majority".., wasn't sure if there were indeed different thresholds (3/5, 2/3) for different legislative questions or just that some in the media may be mathematically challenged

    Comments are subject to approval and moderation. We remind everyone that The Heritage Foundation promotes a civil society where ideas and debate flourish. Please be respectful of each other and the subjects of any criticism. While we may not always agree on policy, we should all agree that being appropriately informed is everyone's intention visiting this site. Profanity, lewdness, personal attacks, and other forms of incivility will not be tolerated. Please keep your thoughts brief and avoid ALL CAPS. While we respect your first amendment rights, we are obligated to our readers to maintain these standards. Thanks for joining the conversation.

    Big Government Is NOT the Answer

    Your tax dollars are being spent on programs that we really don't need.

    I Agree I Disagree ×

    Get Heritage In Your Inbox — FREE!

    Heritage Foundation e-mails keep you updated on the ongoing policy battles in Washington and around the country.

    ×