The Filibuster and the Framing: Why the Cloture Rule is Unconstitutional and What to Do About it

INTRODUCTIONThe United States Senate has grappled with "filibusters" from early in its history.1 The present-day chamber's formal treatment of the subject finds expression in Senate Rule XXII, which requires sixty votes to end debate on most pending matters.2 This "Cloture Rule" has stirred intense disagreement. Proponents claim that it fosters deliberation, impedes majority overreaching, and differentiates the Senate from the House in salutary ways.3 Critics respond that the Rule breeds gridlock, contributes to political party polarization, and channels power to fractious minorities.4This Article does not consider these arguments. Instead, it addresses a different question: Does the Cloture Rule violate a constitutional mandate of legislative majority rule? Some analysts have considered this question and shed valuable light on the subject.5 Even so, their work is incomplete. Of particular importance, both opponents and proponents of the Senate's current regime have failed to take full account of the text of the Constitution and the historical backdrop against which the Framers crafted it.6 Nor have they considered recent developments, including the use in November 2013 of the so-called "nuclear option" to alter cloture practice for some, but not all, confirmation votes on presidential nominees.7 Focusing on these matters, this Article demonstrates why the Senate's current use of Rule XXII clashes with governing constitutional law.The development of this thesis proceeds in three steps. Part I identifies the two claimed sources of constitutional authority for the Cloture Rule, thereby setting the stage for a systematic critique.8 The first source is the AnyVoting-Number Theory, which posits that Article I's Rules of Proceedings Clause permits the Senate to impose on itself whatever vote-total requirements it prefers for any action it might take, including the passage of ordinary laws.9 The second claimed source of authority is the Just-a-Debating-Rule Theory, which rests on the idea that the Rules of Proceedings Clause at least permits each chamber of Congress to establish procedures for its own internal, day-today operations.10 In other words, even if the Senate cannot establish supermajority voting requirements for substantive decisions about whether to pass bills or confirm nominees, it may do so for procedural decisions about when to end debate.11 Rule XXII, so the argument goes, embodies just this sort of permissible procedural choice.Parts II and III of this Article consider these defenses in turn. Part II demonstrates that the Any-Voting-Number Theory fails because the Constitution establishes that the Senate must engage in ordinary lawmaking by way of majority vote and cannot alter that requirement by way of rulemaking.12 This conclusion finds support in the text of the Constitution as illuminated by com- mon understandings that prevailed at the time of the framing. 13 Part III turns to the Just-a-Debating-Rule Theory.14 The essential problem with this defense of the Cloture Rule is that the Rule in its current operation does not-to say the least-concern just debate. Rather, the Senate's cloture practice has evolved to a point that it has nothing of significance to do with debating and everything to do with substantive decision making. Given this reality, the sixty-vote Cloture Rule works in practice as a supermajority voting requirement. And because the Rule operates in this way, it is invalid because "the Constitution is concerned, not with form, but with substance."15Part IV takes up the task of devising a suitable constitutional remedy for the constitutional wrong established in Parts I through III, focusing attention on two remedial possibilities.16 The first would provide for a final up-or-down majority vote on any matter put forward in a timely fashion, but only after affording objectors an extended opportunity to register disagreement and press for change.17 The second would return the Senate to filibustering in its historical form, thus refocusing votes under Rule XXII on the cloture of true speechmaking on the Senate floor. …