"In the first 50 years of the filibuster, it was used only 35 times.  But the last Congress alone had 112 cloture motions filed plus threats of more.  This is tyranny of the minority."

Peter Fenn

The Senate’s inflexible partisanship has paralyzed Congress’ ability to reach reasonable compromises on legislation to improve the lives of Americans and make continued progress toward achieving the ideals set forth in the Declaration of Independence and Preamble to the Constitution.

The stumbling block has been the “filibuster”. 

Dating back to the early 19th century when Vice President Burr encouraged Senators to engage in such tactics to delay a vote.  Initially employed only infrequently, frustration evolved around an inability to shut off debate and bringing a question to a vote.   In 1917 President Wilson convinced senators to adopt “Rule 22” allowing the Senate to invoke “cloture” and limit debate with a two-thirds majority vote. 

Over the next four decades, the Senate managed to invoke cloture just five times while the filibuster became a successful for southern senators seeking to block civil rights legislation.  In 1975, the Senate reduced the number of votes required for cloture from two-thirds to three-fifths or 60 votes.   

In 2005, the so-called nuclear option was approved permitting a simple majority to end debate on executive nominations, including those for federal judicial appointments except for nominees to the U.S. Supreme Court.  Eight years later the Senate modified its rules to prohibit the use of filibusters on any federal judicial nominees, including nominees to the Supreme Court.

While “majority rule” is clearly enshrined in the Constitution other than for six situations where the founders felt a super-majority was needed, such as for impeachments, veto overrides and approving treaties, as filibusters appear nowhere in the Constitution, they violate that principle and seem unconstitutional.

The rub occurs as Article I Section 5 states the Senate “may determine the Rules of its Proceedings”; which one would assume would have to be constitutional.

While often frustrating, the filibuster, originally designed to encourage compromise on controversial legislation, plays an important role in preventing a tyranny by the majority party. 

But there are major problems with the filibuster in practice.

  1. As since 1979 neither party has controlled more than 58 Senate seats, obtaining a 60-vote cloture resolution involving contentious legislation in today’s partisan, party-first environment is nearly impossible. 
  1. Today’s “silent filibuster”, allowing a senator simply recruit a minority of 41 senators to indicate they intend to filibuster a bill has become a political coward’s tool to avoid having to take a public stand and ultimately vote on such bills.

No matter how presently tempting, as Democrats have discovered to their dismay where confirmation of Supreme Court nominees are concerned, the lack of a filibuster can become a party’s worst nightmare when the opposition regains control.

Eliminating the filibuster could enable one party with razor-thin margins in both the House and Senate to ramrod highly-partisan and divisive bills through Congress with as few as one vote margins in both chambers. 

A wiser course would be to reduce the number of votes to evoke cloture to 55, a threshold at which compromises might be possible, and, in parallel, mandate any vote of 55 senators requires the legislation to be brought for a vote on the Senate floor, thereby eliminating a majority leader’s ability to unilaterally kill any bill they dislike.