The Filibuster and the Framing: Why the Cloture Rule is Unconstitutional and What to do About it

The U.S. Senate’s handling of filibusters has changed dramatically in recent decades. As a result, the current sixty-vote requirement for invoking cloture of debate does not produce protracted speechmaking on the Senate floor, as did predecessors of this rule in earlier periods of our history. Rather, the upper chamber now functions under a “stealth filibuster” system that in practical effect requires action by a supermajority to pass proposed bills. This Article demonstrates why this system offends a constitutional mandate of legislative majoritarianism in light of well-established Framing-era understandings and governing substance-over-form principles of interpretation. Having established the presence of a constitutional violation, the Article turns to the subject of formulating a suitable remedy. As it shows, the Constitution does not require wholesale abandonment of supermajority voting rules in the upper chamber. Instead, the Senate might opt for more nuanced approaches that carry forward its tradition of extended deliberation and careful attentiveness to the views of minority blocs, while providing in the end for majoritarian decision making in keeping with the Constitution’s commands.