The filibuster has a long history, but its pedigree should not make us proud. It prevented civil rights legislation from being adopted for nearly a century. Now a minority of senators is using it to prevent the Senate from voting on judicial nominees even though a majority of the senators from both parties would vote to confirm if they only could vote.
The modern filibuster is much more powerful than its historical predecessor because it is invisible: The Senate rules do not require any senator to actually hold the floor to filibuster. Instead, a minority of 41 senators simply notifies the Senate leadership of its intent to filibuster. Other Senate business goes on, but a vote on a particular issue — a nomination — cannot be brought to a vote. The present Senate rules that create the filibuster also do not allow the Senate to change the filibuster rules unless 67 senators agree. However, these rules should not bind the present Senate any more than a statute that says that it cannot be repealed until 67 percent of the Senate votes to repeal the statute. An earlier Senate cannot bind a present Senate on this issue.
The Senate, unlike the House, is often called a continuing body because only one‐third of its members are elected every two years. But that does not give the senators of a prior generation (some of whom were defeated in prior elections) the right to prevent the present Senate from choosing, by simple majority, the rules governing its procedure. For purposes of deciding which rules to follow, the Senate starts anew every two years.
It is easy to make this point by looking at simple logic and history.
If a prior Senate can bind a later Senate, that would mean that the prior Senate could, by mere rule, impose what amounts to an important amendment to the Constitution regarding the number of votes needed to confirm a nominee. The Senate cannot change the number of votes needed to confirm a nominee any more than it can properly change the number of votes necessary for consenting to the ratification of a treaty from two‐thirds to 75 percent or 51 percent.
Recall that Senator James Jeffords became an independent after the 2000 election. That shifted control of the Senate from Republicans to Democrats. The new Senate then reorganized itself, changed committee staff, and so on. However, if a prior Senate can really bind the present Senate, then an earlier Senate could have passed a rule that prevents reorganizing the Senate. We all know that such an effort would be as outrageous as the Federalist Party (which lost in the election of 1800) continuing to control the Senate and decide committee ratios, staff allocations, etc., as long as 34 percent of the Senate remained Federalist.
One might respond: But that would mean that the Senate could not vote on anything while there was a filibuster going on. Ah, but as mentioned above, the Senate rules do not require any senator to actually take the floor to speak: Senators simply notify the Senate leadership of the plan to filibuster on a particular bill or nomination and that kills it dead in its tracks. Or, think of it this way: What if the prior Senate (before the most recent election that shifted control to the Republicans) used its rule‐making power to provide that judicial appointments require 75 percent or even unanimous consent, and that the Senate could not change that rule except by a two‐thirds majority? Surely, no one would argue that the prior Senate could prevent the present Senate from changing that rule. Filibusters cannot be used to prevent changes in the rules that govern filibusters.
The present Senate rules are no more sacrosanct than a statute. If the president signs a law, it remains in effect until the House and Senate repeal it and the president signs the repealing legislation. The prior law cannot provide that it remains law unless 67 percent of the senators approve the repeal. Similarly, a Senate rule remains in effect only until a majority of the Senate changes that rule. The prior rule cannot provide that it remains law unless 67 percent of the senators approve the repeal, but that is what the Senate rules now provide.
Precedent also supports this principle. In 1975 the Senators changed the filibuster requirement from 67 votes to 60, after concluding that it only takes a simple majority of Senators to change the rules governing their proceedings. As Senate Majority Leader Mike Mansfield (D-MT) said at the time: “We cannot allow a minority” of the senators “to grab the Senate by the throat and hold it there.” Senators Leahy, Kennedy, Byrd, and Biden, all agreed. Nearly a decade ago, Lloyd Cutler, the former White House Counsel to Presidents Carter and Clinton, concluded that the Senate Rule requiring a super‐majority vote to change the rule is “plainly unconstitutional.”
That was then. Now, a minority of senators once again claims that the Senate cannot change it rules to prevent this filibuster unless a super‐majority agree. That is wrong. To paraphrase Senator Henry Cabot Lodge, to vote without debate is unwise, but to debate without even being able to vote is ridiculous.