Four Myths about the Filibuster

Brian Darling /

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.