# Four Members of Congress Sue To Declare Filibuster Unconstitutional **URL:** \ **Category:** Great Debates\ **Created:** [May 16, 2012, 5:39pm UTC](https://boards.straightdope.com/t/four-members-of-congress-sue-to-declare-filibuster-unconstitutional/622116 "2012-05-16T17:39:21Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![Robot\_Arm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/robot_arm/32/18280_2.png) [@Robot\_Arm](https://boards.straightdope.com/u/Robot_Arm)\ **Post date:** [May 17, 2012, 2:06am UTC](https://boards.straightdope.com/t/four-members-of-congress-sue-to-declare-filibuster-unconstitutional/622116/61 "2012-05-17T02:06:19Z")
> [@BrainGlutton](#): > > That is also a good reason to abolish the U.S. Senate, and that of of every two-house state legislature. A unicameral, or dromedary, legislature can respond to change faster and correct its mistakes more readily than a bicameral, or Bactrian, legislature. That is one of the best posts I have ever read on this board; just the right mix of snark and wildly off-topic, yet bizarrely accurate, allusion. A quick google search even supports the capitalization of “Bactrian” but not “dromedary”. Bravo. Well done. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [May 17, 2012, 2:14am UTC](https://boards.straightdope.com/t/four-members-of-congress-sue-to-declare-filibuster-unconstitutional/622116/62 "2012-05-17T02:14:47Z")
> [@Robot\_Arm](#): > > That is one of the best posts I have ever read on this board; just the right mix of snark and wildly off-topic, yet bizarrely accurate, allusion. A quick google search even supports the capitalization of “Bactrian” but not “dromedary”. > > Bravo. Well done. 😃 [bows] I get kickbacks from vendors for every spew-ruined keyboard. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [May 17, 2012, 2:17am UTC](https://boards.straightdope.com/t/four-members-of-congress-sue-to-declare-filibuster-unconstitutional/622116/63 "2012-05-17T02:17:49Z")
> [@Cliffy](#): > > I’m not wrong. Whatever parliamentary procedure any body happened to have, the filibuster today is a de facto supermajority requirement. A rule on motions to close debate isn’t the same as a rule on supermajorities unless and until the daily passage of legislation depends on it. So your objection is not to the filibuster but rather the procedural filibuster as practiced. And yes you are wrong because you inplied every motion historically needed a simple majority and that is not the case. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [May 17, 2012, 2:33am UTC](https://boards.straightdope.com/t/four-members-of-congress-sue-to-declare-filibuster-unconstitutional/622116/64 "2012-05-17T02:33:21Z")
“Filibuster” is just a name for “the right to unlimited debate.” Which might have seemed eminently reasonable, once – when there were only 26 senators. The House also started with an unlimited-debate rule, [but abolished it in 1842.](http://en.wikipedia.org/wiki/Filibuster#United_States) The Senate should show the same common sense. ---
**Author:** ![2sense](https://avatars.discourse-cdn.com/v4/letter/2/e47774/32.png) [@2sense](https://boards.straightdope.com/u/2sense)\ **Post date:** [May 17, 2012, 5:22am UTC](https://boards.straightdope.com/t/four-members-of-congress-sue-to-declare-filibuster-unconstitutional/622116/65 "2012-05-17T05:22:18Z")
You can’t eliminate the procedural filibuster without first eliminating the active filibuster because the former grows out of the latter. The reason the Senate Majority simply moves on to other business when the Minority indicates it will filibuster is because that’s the only way to get anything done. The Minority can easily have enough Senators available to continue speaking indefinitely. And remember it’s a lot easier for the Minority since they only need to have a few Senators on hand or even just one while nearly all of the Majority need to remain or else a Quorum Call will indicate the lack of a majority of Senators present and business cannot be conducted. The only way to end the procedural filibuster is to change the Senate rules to either allow cloture by simple majority or to limit debate in some other fashion. > [@Saint\_Cad](#): > > And for those of you not familiar with Parliamentary Law: the motion Previous Question requires a 2/3 vote to end debate. The Senate equivalent is Cloture and only requires a 60% vote. What this means for you anti-filibusterist is that the alternative allows gridlock > > BY AN EVEN SMALLER MINORITY :eek: mu-ha-ha-ha-ha The Previous Question is not intended to end debate regularly. It is a motion to end consideration of a question prematurely before everyone has had a chance to debate. Parliamentary bodies typically have rules in place to limit debate. The default being to allow each member to speak twice for up to ten minutes at a time. Thus debate naturally comes to a close unless the rules are suspended to continue (which requires a 2/3 majority). The US House, for instance, allows the Previous Question motion that is passed by a simple majority to limit debate to 40 minutes. Typically the Previous Question is agreed to before any actual debate begins. Parliamentary procedure is not designed to allow the minority to obstruct the majority. Rules are in place to protect the rights of the minority but those are the rights to participate. The minority has no right to win. The current Senate procedure is in violation of this basic custom. That’s not to say the courts should step in to rectify the situation. The Senate operates this way because that’s how most Senators like it. Republican Senators have been raising the stakes of the filibuster as **Ravenman** has demonstrated but the Democrats could end the filibuster using the “nuclear option” at any time. They don’t for the same reason the Republicans didn’t back when they were the ones getting cockblocked. Because no one can get a simple majority to sustain the presiding officer’s ruling allowing voting on a bill without having 3/5 voting for cloture. Individual Senators like the filibuster because it makes them more powerful. More votes are required to get things done so they have to be consulted and convinced more often. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [May 17, 2012, 12:13pm UTC](https://boards.straightdope.com/t/four-members-of-congress-sue-to-declare-filibuster-unconstitutional/622116/66 "2012-05-17T12:13:50Z")
> [@2sense](#): > > You can’t eliminate the procedural filibuster without first eliminating the active filibuster because the former grows out of the latter. The reason the Senate Majority simply moves on to other business when the Minority indicates it will filibuster is because that’s the only way to get anything done. The Minority can easily have enough Senators available to continue speaking indefinitely. And remember it’s a lot easier for the Minority since they only need to have a few Senators on hand or even just one while nearly all of the Majority need to remain or else a Quorum Call will indicate the lack of a majority of Senators present and business cannot be conducted. The only way to end the procedural filibuster is to change the Senate rules to either allow cloture by simple majority or to limit debate in some other fashion. You could get rid of the procedural filibuster and leave the old fashioned filibuster in place. In fact it can be done _right now_. As I understand it the President of the Senate (or most usually the President Pro Tem) can force a proper filibuster. Rather than merely accepting the other side’s willingness to filibuster they can make them get up and start talking till they drop. Why Reid never does this I have no idea (could Biden walk in and over ride Reid and do this?) except that none of them want to sit there listening to a phone book being read and, if the shoe is on the other foot, the republicans will presumably be nice too and not make dems stand on the floor and talk endlessly. Also, and frankly I am not quite sure how this all works, my reading suggests the procedural filibuster was an emergent result when they changed Rule 22 in 1975 to allow cloture with a 3/5 vote instead of a 2/3 vote (seems easier to do a procedual filibuster when you need a 2/3 vote so I must be missing something…still, this is what I find pointed to when reading about it). So, whatever the case, change the rules to the way they were prior to the 1975 and it seems you would get rid of the procedural filibuster and go back to the old filibuster. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [May 17, 2012, 1:47pm UTC](https://boards.straightdope.com/t/four-members-of-congress-sue-to-declare-filibuster-unconstitutional/622116/67 "2012-05-17T13:47:09Z")
> [@Whack-a-Mole](#): > > You could get rid of the procedural filibuster and leave the old fashioned filibuster in place. But there’s no good reason to leave it in place. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [May 17, 2012, 2:15pm UTC](https://boards.straightdope.com/t/four-members-of-congress-sue-to-declare-filibuster-unconstitutional/622116/68 "2012-05-17T14:15:30Z")
> [@2sense](#): > > The Previous Question is not intended to end debate regularly. It is a motion to end consideration of a question prematurely before everyone has had a chance to debate. Parliamentary bodies typically have rules in place to limit debate. The default being to allow each member to speak twice for up to ten minutes at a time. Thus debate naturally comes to a close unless the rules are suspended to continue (which requires a 2/3 majority). The US House, for instance, allows the Previous Question motion that is passed by a simple majority to limit debate to 40 minutes. Typically the Previous Question is agreed to before any actual debate begins. I am quite aware of the parliamentary law on debate and I would point out that the default you mention is incorrect for this particular body. You are quoting Robert’s Rules of Order however **most American state legislative bodies use Mason’s Manual** which limits debate to once per member per reading, twice if everyone else has spoken and a member needs to clarify their point. The problem in the Senate started because it was a gentleman’s club and that it would be improper to limit their debate. My point was that a lot of people in this thread somehow think that a simple majority is the standard for conducting business (i.e. passing motions) and that is simply not the case. If using the standard motion to end debate (Previous Question) a 2/3 vote is necessary and so unless the Senate changes their rules and limit debates, then Parliamentary Law would allow gridlock by an even smaller minority (34 Senators) than you have now. I suppose that you could change the cloture vote to a simple majority but that’s no different than the nuclear option. ---
**Author:** ![Zeriel](https://avatars.discourse-cdn.com/v4/letter/z/58956e/32.png) [@Zeriel](https://boards.straightdope.com/u/Zeriel)\ **Post date:** [May 17, 2012, 3:18pm UTC](https://boards.straightdope.com/t/four-members-of-congress-sue-to-declare-filibuster-unconstitutional/622116/69 "2012-05-17T15:18:38Z")
> [@dngnb8](#): > > Again, the youre more evil then us rebuttal doesnt fly. Both sides have used it. Both sides will continue to use it. Both sides will continue to stop its use when they have the control. If I hit you, you hit me back, and then I hit you twice, which of us is more evil? I wouldn’t accept this “both sides are at fault!” nonsense from my toddler, let alone from supposed statesmen. One side did it first. One side escalates it to new heights every time they’re the minority. The other side retaliates proportionally. Proportional response and tit-for-tat strategies are both morally justified. The first side is in the wrong, period. ---
**Author:** ![dngnb8](https://avatars.discourse-cdn.com/v4/letter/d/977dab/32.png) [@dngnb8](https://boards.straightdope.com/u/dngnb8)\ **Post date:** [May 17, 2012, 3:58pm UTC](https://boards.straightdope.com/t/four-members-of-congress-sue-to-declare-filibuster-unconstitutional/622116/70 "2012-05-17T15:58:30Z")
> [@BigT](#): > > In real life, two groups are never equally bad. All you do by equating the two and becoming apathetic is to take away a vote against the worse of the two. Figure out which one is the lesser evil, and use their desire for your vote to affect change. What makes you think I dont do that. My vote isnt based on a capital R or D. Last election, I voted 55-45%. > [@](#): > > And, anyway, if they are equal, then the only thing the fillibuster changes is that change happens more slowly. Since you aren’t satisfied with the current system you should want change. The filibuster prevents steamrolling of bad law. Unfortunately, it also prevents steamrolling of good law. The problem is, our current leaders dont care about bad or good, they care about who wrote the law. If D writes it, R will do anything to stop it, whether it is good of not. If R writes it, D will do anything to stop it, whether it is good of not. ---
**Author:** ![dngnb8](https://avatars.discourse-cdn.com/v4/letter/d/977dab/32.png) [@dngnb8](https://boards.straightdope.com/u/dngnb8)\ **Post date:** [May 17, 2012, 4:02pm UTC](https://boards.straightdope.com/t/four-members-of-congress-sue-to-declare-filibuster-unconstitutional/622116/71 "2012-05-17T16:02:07Z")
> [@Zeriel](#): > > If I hit you, you hit me back, and then I hit you twice, which of us is more evil? Hitting alone isnt evil. Why one hits makes that determination. If you hit me and I hit back in self defense to prevent you from pummeling me to a pulp, youre evil, I am not. > [@](#): > > I wouldn’t accept this “both sides are at fault!” nonsense from my toddler, let alone from supposed statesmen. I wouldnt accept the “As long as we arent as evil as them, lets do it” from my kids or statesmen. > [@](#): > > One side did it first. > One side escalates it to new heights every time they’re the minority. > > The other side retaliates proportionally. > Proportional response and tit-for-tat strategies are both morally justified. > > The first side is in the wrong, period. The second side is wrong as well. Period. 2 wrongs do not make it right ---
**Author:** ![Zeriel](https://avatars.discourse-cdn.com/v4/letter/z/58956e/32.png) [@Zeriel](https://boards.straightdope.com/u/Zeriel)\ **Post date:** [May 17, 2012, 4:10pm UTC](https://boards.straightdope.com/t/four-members-of-congress-sue-to-declare-filibuster-unconstitutional/622116/72 "2012-05-17T16:10:19Z")
> [@dngnb8](#): > > The second side is wrong as well. Period. 2 wrongs do not make it right _shrugs_ Proportional response and tit-for-tat strategies are both morally justified, as I said. ---
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [May 17, 2012, 4:58pm UTC](https://boards.straightdope.com/t/four-members-of-congress-sue-to-declare-filibuster-unconstitutional/622116/73 "2012-05-17T16:58:47Z")
> [@Saint\_Cad](#): > > So your objection is not to the filibuster but rather the procedural filibuster as practiced. And yes you are wrong because you inplied every motion historically needed a simple majority and that is not the case. But you are (obtusely, it seems) conflating procedural issues with the question of what is required for final passage of a bill. I’m not saying that process isn’t relevant. I’m saying that today, for the first time, and as existed in no legislature known to the Founders, the U.S. Senate has a supermajority requirement to pass bills. That is not the same as having a potential procedural roadblock that could theoretically be used to frustrate the general will but, in practice, never or almost never was. –Cliffy ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [May 17, 2012, 5:28pm UTC](https://boards.straightdope.com/t/four-members-of-congress-sue-to-declare-filibuster-unconstitutional/622116/74 "2012-05-17T17:28:13Z")
> [@Cliffy](#): > > I’m saying that today, for the first time, and as existed in no legislature known to the Founders, the U.S. Senate has a supermajority requirement to pass bills. Well, no, it doesn’t. Passage still requires a majority. Various procedural motions may require 60 votes (for cloture and other matters, such as legislation that would violate budget caps also requires a supermajority), but the constitutional requirement to pass a bill remains a majority. We should be clear with our terms here. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [May 17, 2012, 5:29pm UTC](https://boards.straightdope.com/t/four-members-of-congress-sue-to-declare-filibuster-unconstitutional/622116/75 "2012-05-17T17:29:24Z")
> [@Cliffy](#): > > But you are (obtusely, it seems) conflating procedural issues with the question of what is required for final passage of a bill. I’m not saying that process isn’t relevant. I’m saying that today, for the first time, and as existed in no legislature known to the Founders, the U.S. Senate has a supermajority requirement to pass bills. That is not the same as having a potential procedural roadblock that could theoretically be used to frustrate the general will but, in practice, never or almost never was. > > –Cliffy Actually I’m not conflating anything but rather addressing two separate issue. 1. For historical reasons the Senate has no built-in limit on debate. The complaint that 41 Senators can hold a bill hostage neglects to point out that the standard motion under Parliamentary Law would allow only 34 Senators to hold a bill hostage. Converting this to a simple majority would be considered a nuclear option in any deliberative body. 2. So the solution really would be to limit debate as a Senate Rule so that Previous Question (or Cloture in Senate parlance) could go back to what it should be which is STFU and let’s vote already rather than listening to everyone yammer on for another 2 hours. The standard for legislative bodies is that a member gets one opportunity to speak (not two of 10 minutes as 2sense seems to think) with a second opportunity after everyone else has spoken and then to clarify a point. 3. But what if the Senate chooses not to do (2)? Then go back to the old-style filibuster rather than the current: Jim Bob (R) - We’re gonna filibuster this thar bill. Joe Bob (D) - Well shit!! Guess there’s nothing we can do about it. It would take a lot of balls for 41 Senators to agree that everything (and I mean EVERYTHING) has to stop until the other side gives in. ---
**Author:** ![dngnb8](https://avatars.discourse-cdn.com/v4/letter/d/977dab/32.png) [@dngnb8](https://boards.straightdope.com/u/dngnb8)\ **Post date:** [May 17, 2012, 5:31pm UTC](https://boards.straightdope.com/t/four-members-of-congress-sue-to-declare-filibuster-unconstitutional/622116/76 "2012-05-17T17:31:43Z")
> [@Zeriel](#): > > _shrugs_ Proportional response and tit-for-tat strategies are both morally justified, as I said. I dont buy into blanket statements. This is a case by case assertion. ---
**Author:** ![Zeriel](https://avatars.discourse-cdn.com/v4/letter/z/58956e/32.png) [@Zeriel](https://boards.straightdope.com/u/Zeriel)\ **Post date:** [May 17, 2012, 6:36pm UTC](https://boards.straightdope.com/t/four-members-of-congress-sue-to-declare-filibuster-unconstitutional/622116/77 "2012-05-17T18:36:42Z")
> [@dngnb8](#): > > I dont buy into blanket statements. This is a case by case assertion. Right, and I’m saying you’re still wrong. It’s wrong to unilaterally escalate the average number of filibusters in the service of obstructionism. It’s not wrong to retaliate in kind, in an attempt to punish obstructionism. ---
**Author:** ![2sense](https://avatars.discourse-cdn.com/v4/letter/2/e47774/32.png) [@2sense](https://boards.straightdope.com/u/2sense)\ **Post date:** [May 17, 2012, 7:16pm UTC](https://boards.straightdope.com/t/four-members-of-congress-sue-to-declare-filibuster-unconstitutional/622116/78 "2012-05-17T19:16:30Z")
> [@Whack-a-Mole](#): > > You could get rid of the procedural filibuster and leave the old fashioned filibuster in place. > > In fact it can be done _right now_. As I understand it the President of the Senate (or most usually the President Pro Tem) can force a proper filibuster. Rather than merely accepting the other side’s willingness to filibuster they can make them get up and start talking till they drop. > > Why Reid never does this I have no idea (could Biden walk in and over ride Reid and do this?) except that none of them want to sit there listening to a phone book being read and, if the shoe is on the other foot, the republicans will presumably be nice too and not make dems stand on the floor and talk endlessly. ## I guess I wasn’t clear enough. The reason the Majority, Republican or Democrat, doesn’t make the Minority take the floor to actively sustain a filibuster is because it is easy for the Minority to do so and burdensome for the Majority. And while that debate goes on endlessly no other business can be conducted. The Majority moves on to other things because they don’t want to waste the session. To do otherwise would allow the Minority to obstruct **all business** and not just that single issue. There is nothing complicated about the “procedural filibuster”. It’s just the Majority Leader recognizing the futility of fighting it out and scheduling debate on other business. > [@Saint\_Cad](#): > > ThMy point was that a lot of people in this thread somehow think that a simple majority is the standard for conducting business (i.e. passing motions) and that is simply not the case. If using the standard motion to end debate (Previous Question) a 2/3 vote is necessary and so unless the Senate changes their rules and limit debates, then Parliamentary Law would allow gridlock by an even smaller minority (34 Senators) than you have now. I suppose that you could change the cloture vote to a simple majority but that’s no different than the nuclear option. ## I see your point now but really it’s a small thing. A simple majority **is** the standard for conducting regular business. It is only special motions that require supermajorities. Ordinarily you don’t need a supermajority to accomplish your ends. If you have a simple majority then eventually you will be able to conduct your business (assuming you set the agenda). > [@Ravenman](#): > > Various procedural motions may require 60 votes (for cloture and other matters, such as legislation that would violate budget caps also requires a supermajority), but the constitutional requirement to pass a bill remains a majority. Where is this requirement in the Constitution? I see where it says the houses of Congress can make their own rules. It seems to me that if the Senate wants to require a 3/5 majority to pass bills then that is their prerogative. I wouldn’t support such a rule but I do think the Senate has the right to enact it. ---
**Author:** ![septimus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/septimus/32/410_2.png) [@septimus](https://boards.straightdope.com/u/septimus)\ **Post date:** [May 17, 2012, 7:42pm UTC](https://boards.straightdope.com/t/four-members-of-congress-sue-to-declare-filibuster-unconstitutional/622116/79 "2012-05-17T19:42:50Z")
Senator Tom Udall [moved to change the rules](http://www.tomudall.senate.gov/?p=press_release&id=740) on the opening day of the present Session. These new rules would not even have eliminated the filibuster, just the “procedural” filibuster. This motion itself could not have filibustered so would have passed with support from 50 Senators plus Biden. What happened? Were four or more Democrat Senators scared into thinking the Bullshit machine would cost them their jobs if they supported the bill? ---
**Author:** ![Jack\_Batty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jack_batty/32/3201_2.png) [@Jack\_Batty](https://boards.straightdope.com/u/Jack_Batty)\ **Post date:** [May 17, 2012, 7:49pm UTC](https://boards.straightdope.com/t/four-members-of-congress-sue-to-declare-filibuster-unconstitutional/622116/80 "2012-05-17T19:49:36Z")
> [@septimus](#): > > Senator Tom Udall [moved to change the rules](http://www.tomudall.senate.gov/?p=press_release&id=740) on the opening day of the present Session. These new rules would not even have eliminated the filibuster, just the “procedural” filibuster. This motion itself could not have filibustered so would have passed with support from 50 Senators plus Biden. > > What happened? Were four or more Democrat Senators scared into thinking the Bullshit machine would cost them their jobs if they supported the bill? So … um, what was the final resolution on that? Voted down? Got a tally of the voting rolls on that one? – I’d be extremely interested to see exactly which Senators were the dick-holes. [Previous page](https://boards.straightdope.com/t/four-members-of-congress-sue-to-declare-filibuster-unconstitutional/622116.md?page=3) [Next page](https://boards.straightdope.com/t/four-members-of-congress-sue-to-declare-filibuster-unconstitutional/622116.md?page=5)