Senate Filibuster Rules

by Jeffry R. Fisher

I'm amazed (and dismayed) but not surprised by the recent US Senate flap over filibuster rules: Sore left-wing losers in Congress and big media have latched onto and are ranting endlessly about the so-called "nuclear option" in a partially successful attempt to depict the Senate majority as out-of-control radical extremists. How dare a Republican majority try to make decisions that Democratic made routinely during their decades' of majoritarianism!


An internal procedural rules change is not a "nuclear option". We should save that hyperbole for when partisan wrangling escalates to a constitutional amendment... or worse, a constitutional convention. Now that's a nuclear option!


Those bandying about such terminology should review past filibuster fights. In a 1977 fight, VP Walter Mondale broke a Republican filibuster by ruling Republican Senators out of order:

"Majority Leader Robert C. Byrd persuaded Mondale to cooperate in a daring strategy to cut off the filibuster. On the floor, Byrd raised points of order that many of the amendments should be ruled out of order as incorrectly drawn or not germane. As presiding officer, Mondale ruled thirty-three amendments out of order in a matter of minutes. The Senate erupted into angry protest, with even senators who had not filibustered denouncing the tactic. The vice president was lectured by many senators, including some of his longtime friends, for abusing the powers of the presiding officer."

Democrats should recognize that their Senators haven't always spoken so glowingly of tradition (and isn't that a hallmark of conservatism anyway?) They've been quite willing to propose rules changes when it suited them. As recently as 1995, Democrats were trying to pass a new cloture rule very similar to 2003's Republican proposal. Some of those very Democrats are still in the Senate and now whining about getting a dose of their own medicine (while the Republicans, not to be outdone, have forgotten their own prior stance). What a difference a change of majority party makes!

The House of Representatives used to have filibusters too. In 1889, the House eliminated them altogether, but not without protests before adopting "Reed's Rules" (And we 21st century netizens think flame wars get ugly...):

"Tempers reached such a fevered pitch that, at one point, a knot of Democratic members advanced menacingly down the center aisle toward the speaker's chair, giving the impression that Reed would be physically assaulted. Even the galleries joined in, with spectators and reporters shouting and screaming abuse at the speaker."


The "traditional" filibuster custom was significantly changed only a few years ago to allow senators to "filibuster" without actually speaking and consuming their own time. The relatively new "silent" filibusters are anything but traditional. Classic filibusters took senators out of important committee meetings and kept them up nights for as long as they intended to block Senate action. Such was the price of minority rule.

The new silent filibuster is just way too convenient. Ten Senators sign a piece of paper and boom, the object of their wrath requires a 60% supermajority to pass. With this stupid rule, virtually all Senate action now requires a 60% supermajority, something not required by the US Constitution.

By eliminating the cost of filibustering, the new rules have effectively undermined majority rule, a cornerstone (along with enumerated powers) of our constitutional republic. Thus, the silent filibuster has led directly to the unpleasant situation in which the Senate now finds itself.


The obvious solution (to anyone but a politician) is to restore the original traditional rules that existed prior to the silent filibuster: If a few senators care so deeply about something that they're willing to drop all of their other work, then a 41% minority may use filibuster tactics to obstruct voting and give allies a chance to muster evidence against a proposal. However, such motivated Senators should have to prove their convictions by sacrificing their time and effort (pay a political price) to delay the proper business of the majority.

PS: I've hunted through the online Senate Rules, and I can't find the clause enabling the ten-Senator silent filibuster. If anyone can explain it, please write to me.

Copyright 2003-2008 by Jeffry R. Fisher: Permission is granted to reproduce this article in whole, but only in combination with attribution, the original title, the original URL, and this copyright notice.
Jeffry R. Fisher is the founder and president of Propagate Ltd, which is liberating digital content as