In order to continue constructive Senate procedures, ensure the Senate’s acts are for the

common good, and uphold the Founding Fathers’ vision of democracy, the United States Senate

must vote to modify the Rules and Procedures to reform the silent filibuster by lowering the

cloture vote, to 55 from 60. The silent filibuster has become a means to obstruct legislation in the

United States Senate, used often to exact revenge and score points before one’s political base.

The filibuster is a term used to describe when Senator(s) speak for long periods of time in order

to prevent the passage of a bill. This is in keeping with the Founding Fathers’ ideas of “unlimited

debate”, the idea that a motion to vote should only commence when all members of the Senate

feel that it has been debated enough. This causes Senate debates to be notoriously longer than

debates in the House of Representatives. However, more recently used is the “silent filibuster”, a

legislative maneuver in which the minority threatens to filibuster a bill, prompting the majority

to try one of three options: to vote on cloture, in which 60 votes are needed to end a filibuster,

negotiate to get more votes or modify the bill in order to end the filibuster, or table the bill,

basically ending the “lifespan” of that bill.

The filibuster was quite possibly created by a mistake. In 1805, a motion called the

“previous question” motion was cut from the Senate Rules by Vice President Aaron Burr. The

“previous question” motion moves for a simple majority vote to end debate on a bill, and it is

still used in the House of Representatives. This opened the door for the filibuster because a

smaller group could continuously talk to block a bill without being overridden. The filibuster

started top become a more commonly used tool by the minority who saw it as a way to free

themselves form the tyranny of the majority. Because of increased partisan divide, the rule

changed in 1917 with the implementation of a cloture rule in Senate debate. A cloture vote ends

debate, and moves to a vote on the bill. However, in 1917, it required a two-thirds majority. In

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1975, after more than 20 years of attempted reform, the cloture vote was decreased from 67 votes

to 60 votes, making cloture a more feasible option. The filibuster started to be used much more

commonly at this point. Greg Wawro, a political science professor said of filibuster, “There are

many more of them than there were prior to the 1970s…They’re used for about everything of

any significance these days,” (Coller). Senate Democrats failed again in another reform attempt

in 2010, but managed to drop votes needed for confirmation of over 400 federal employees in

2011. In 2013, the rules were changed again so that federal judicial appointees, such as U.S.

District judges, and cabinet appointees only needed a simple majority to be confirmed. Since

2007, the filibuster became a much more frequently used technique, with silent filibusters

increasing from 39 in the 94th session of Congress (1975-76) to 139 in the 110th session of

Congress (2007-08) (Kapur) (See Appendix). This correlates with the number of bills passed

through Congress in that period: the number of bills went from about 590 in 1975-76 down to

about 480 in 2007-08, and went all the way down to about 90 bills passed in the 2013-14 session

(“Bills Passed by Congress”) (See Appendix).

The silent filibuster is flawed in two major ways: it does not follow the intent of the

Founding Fathers and it prevents bills beneficial to the American people from being passed into

law. The major issue regarding the silent filibuster and the constitution is that is essentially

creates a 60 vote requirement needed to pass a bill into law. Current Senate Minority Leader

Harry Reid admitted that “60 votes are required for just about everything,” (Klein). If one looks

back into the Founding Father’s writings, it becomes clear that a supermajority was never the

intentioned way to pass a bill. One of the most significant historic papers related to the filibuster

is Federalist Paper 58 in which James Madison says of a supermajority, “It has been said that

more than a majority ought to have been required for a quorum; and in particular cases, if not in

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all, more than a majority of a quorum for a decision… In all cases where justice or the general

good might require new laws to be passed, or active measures to be pursued, the fundamental

principle of free government would be reversed. It would be no longer the majority that would

rule: the power would be transferred to the minority.” This reveals the Founding Fathers’ eerily

accurate prediction of the future; the silent filibuster has created a 60 vote supermajority barrier,

transferring the legislative power from the majority to the minority. One the leading lawyers on

the case against the silent filibuster, Emmet Bondurant, has an additional constitutional take on

it. He writes that “The Framers were aware of the established rule of construction… and that by

adopting these six exceptions to the principle of majority rule, they were excluding other

exceptions,” (Klein). This comes from the six instances in which the Constitution enumerates

that supermajority is needed to pass a bill: impeaching the president, expelling members,

ratifying treaties, passing an amendment to the Constitution, and overriding a presidential veto.

The established rule of construction states that by including these exceptions to the protocol, they

were calling these the only permissible exceptions for a supermajority vote. We can infer from

this that the Framers intended to have a simple majority vote on everything except those six

instances.

The filibuster blocks the passage of laws beneficial to the American people. President

Obama said in May 2014 that “[The GOP] have filibustered about 500 pieces of legislation that

would help the middle class just gives you a sense of how opposed they are to any progress,”

(Topaz). Examples of bills blocked by silent filibusters include the 2013 Paycheck Fairness Act,

a bill requiring employers to prove differences in pay are not gender related, the Keep Student

Loans Affordable Act of 2013, that would have kept the interest rate of subsidized federal student

loans at a slightly more manageable level, and the DREAM Act of 2010, an act giving citizenship

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to immigrants that graduated American high school. These are just a few of the bills that would

have passed and helped the American people but instead were blocked by a silent filibuster.

There are many ways to reform the silent filibuster. The first way would be to lower the

cloture vote. The cloture vote is currently set at 60 votes, down from the original 67. However,

this is still a very high number to reach considering the partisan divide in the Senate. Many want

to reinstitute the “previous question” motion, which is equivalent to lowering the cloture vote to

51. It is very unlikely, however, that that can be achieved, because the majority and the minority

together could not muster up enough votes to pass it. This is because the minority wants to

maintain minority rights, or the concept that the senate should be ruled by a consensus rather

than an all-powerful majority. The majority won’t agree to lower cloture for a similar reason:

they realize that eventually, they will become the minority, and want to be able to use these

obstructive tactics against their opponents. Therefore, cloture should be set at 55. This would

allow the minority to maintain some of its minority rights while making it more possible for bills

to be passed.

A second option is one pursued and spearheaded by Democratic Senator Jeff Merkley.

This is a constructive reform that aims to make the filibuster revert back to its original form and

create more productive Senate procedure. It would also reintroduce the talking filibuster into the

Senate. In this proposal, a cloture vote is still taken to attempt to end a silent filibuster. If that

vote fails, but has more than a simple majority, then the senate enters a period of “extended

debate” in order to maintain the Founding Fathers’ vision of the Senate. In that period, a Senator

from the minority must always be on the floor to present the argument of the minority. If there is

not a Senator currently speaking, the officer presiding over the senate would declare the

extended debate to be over. Then, a “previous question” motion would be scheduled, and voted

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upon. In the likely case that it passes, the bill will be taken to a simple majority vote (Grim). This

option has gained support from Senate Minority Leader Harry Reid, but never was passed. This

option would be a compromise: the minority can continue to block a bill, but the majority relies

on the minority to eventually finish their cycle of presentation. This cycle could take an

extraordinarily long period of time, and likely would result in the tabling of the bill, effectively

ending its possibility of becoming a law, or a waste of precious senate time.

The final, radical option would be to outlaw the silent filibuster altogether. The Senate

could extend allotted debate time after a vote is scheduled for a bill. This option seems like it

would make the problems surrounding the silent filibuster disappear, but it would be nearly

impossible to pass: the minority would never sacrifice all of their rights.

If no reform effort succeeds, the consequences could be dire for American citizens. As

the number of silent filibusters filed has increased significantly, the number of bills passed into

law has dropped dramatically: 590 bills were passed in the 1975-76 Congressional Session, but

in the 2013-14 Congressional Session, a shockingly low 73 bills were passed. If this downward

trend continues, the United States will be stuck with a legislative branch incapable of fulfilling

their most basic purpose: working for the common good of the American people.

The proponents of the filibuster say that the filibuster is needed to protect minority rights.

This is the idea that the minority deserves certain rights to protect themselves from the tyrannical

majority. This is a valid argument. However, there is a limit to minority protection. The filibuster

has become more than a protector of minority rights – it has become a tool to obstruct the

legislative process. Also, the filibuster gives the minority the ability to shut down a large

percentage of bills, causing them to be as tyrannical as the majority. This has caused a legislative

stalemate in which the Americans electing and supporting the majority in reality does not help

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the causes that they are pushing for. Due of the silent filibuster, the federal government is unable

to address pressing issues such as health care, immigration, the wage gap, and tax cuts for the

lower class.

The silent filibuster is an obstructive legislative maneuver that results in the suffering of

the American people. The United States Senate must vote to modify the Rules and Procedures to

reform the silent filibuster by lowering the cloture vote to 55 in order to uphold constructive

Senate procedures, ensure the Senate’s acts are for the common good, and uphold the Founding

Fathers’ vision of democracy, “unlimited debate”.

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Appendix

Kapur, Sahil. "How the Senate Filibuster Has Weakened over Time." TPM. N.p., n.d. Web. 29

Mar. 2015. <http://talkingpointsmemo.com/dc/how-the-senate-filibuster-has-weakened-over-

time>.

Bills Passed by Congress 1947-2014." Chart. Maddow Blog. N.p., n.d. Web. 16 Mar. 2015.

<http://images.dailykos.com/images/93797/large/Bills_passed_by_Congress.png?1405012839>.

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Works Cited

"Bills Passed by Congress 1947-2014." Chart. Maddow Blog. N.p., n.d. Web. 16 Mar.

2015<http://images.dailykos.com/images/93797/large/Bills_passed_by_Congress.png?

1405012839>.

Coller, Andie. "Senate Filibusters Aren't What They Used to Be." Politico 23 Nov. 2009:

n. pag. Politico. Web. 16 Mar. 2015. <http://www.politico.com/ >.

Grim, Ryan. "Jeff Merkley Circulates 'Talking Filibuster' Reform Proposal." Huffington

Post 12 Dec. 2012: n. pag. Huffington Post. Web. 31 Mar. 2015.

<http://www.huffingtonpost.com/ >.

Kapur, Sahil. "How the Senate Filibuster Has Weakened over Time." TPM. N.p., n.d.

Web. 29 Mar. 2015. <http://talkingpointsmemo.com/ >.

Klein, Ezra. "Is the Silent Filibuster Unconstitutional?" Washington Post 15 May 2012:

n. pag. Washington Post. Web. 29 Mar. 2015. <http://www.washingtonpost.com/ >.

Madison, James. The Federalist Papers. Vol. 58. N.p.: n.p., n.d. Constitution.org. Web.

31 Mar. 2015. <http://www.constitution.org/fed/federa58.htm>.

Topaz, Jonathan. "President Obama: Republicans Blocked 500 Bills." Politico 8 May

2014: n. pag. Politico. Web. 31 Mar. 2015. <http://www.politico.com/ >.

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Annotated Bibliography

"Bills Blocked by Republican Filibusters." Bernie Sanders. N.p., 22 Nov. 2013. Web. 31 Mar.

2015. <http://www.sanders.senate.gov/>. List of Bills blocked by Republican filibusters

over a 4 year span. Helps to relate it to the American people. Used to support one of the

major issues.

"Bills Passed by Congress 1947-2014." Chart. Maddow Blog. N.p., n.d. Web. 16 Mar. 2015.

<http://images.dailykos.com/images/93797/large/Bills_passed_by_Congress.png?

1405012839>. Chart showing number of bills passed through congress since 1947. Helps

to show parallel between filibuster and bills.

Blake, Aaron. "The Silent Filibuster, Explained." Washington Post. Washington Post, 14 Feb.

2013. Web. 16 Mar. 2015. <http://www.washingtonpost.com/>. Contains general

information about the silent filibuster. Most of the information comes from a slideshow.

Bolton, Alexander. "Filibuster Reform Is Short of Needed Votes." The Hill. N.p., 28 July 2010.

Web. 29 Mar. 2015. <http://thehill.com/>. Talks about failed effort to lower cloture vote.

Gives quotes from politicians for and against the filibuster. Can be used for both sides

papers.

Coller, Andie. "Senate Filibusters Aren't What They Used to Be." Politico 23 Nov. 2009: n. pag.

Politico. Web. 16 Mar. 2015. <http://www.politico.com/>. Politico full text article giving

background about filibuster and silent filibuster, and gives quotes from senators against

it.

"The Evolution of the Senate Filibuster." Washington Post 21 Nov. 2013: n. pag. Washington

Post. Web. 30 Mar. 2015. <http://www.washingtonpost.com/>. Written as solely text by

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staff reports. Washington Post is slightly liberal leaning, and it's articles reflect that.

Helpful list form analysis of history and development of the filibuster.

Grim, Ryan. "Jeff Merkley Circulates 'Talking Filibuster' Reform Proposal." Huffington Post 12

Dec. 2012: n. pag. Huffington Post. Web. 31 Mar. 2015.

<http://www.huffingtonpost.com/>. Discusses Talking filibuster proposal. Most of the

information on one of the reform options. Explanations from Merkley, avoids secondary

source errors

"Historic Senate Vote Weakens Filibuster." Milwaukee Sentenial [Milwaukee] 8 Mar. 1975: n.

pag. Google. Web. 29 Mar. 2015. <https://news.google.com/newspapers?

nid=wZJMF1LD7PcC&dat=19750308&printsec=frontpage&hl=en>. Original article

from paper discussing lowering of cloture vote from 66 to 60. Shows how it is possible to

reform the silent filibuster. 

Kapur, Sahil. "How the Senate Filibuster Has Weakened over Time." TPM. N.p., n.d. Web. 29

Mar. 2015. <http://talkingpointsmemo.com/>. Talks about cloture and lowering of past

cloture votes. Could be used to quote people for and against it. Does not show its sides

too sufficiently. 

- - -. "Reid: Filibuster Reform Is Happening Whether Republicans Like It or Not." TPM. N.p., 5

Dec. 2012. Web. 29 Mar. 2015. <http://talkingpointsmemo.com/>. Discusses Reid's

attempt to outlaw obstructive minority procedures. Gives ways to reform silent filibuster.

Has McConnell quote for CAP 10

Klein, Ezra. "Is the Silent Filibuster Unconstitutional?" Washington Post 15 May 2012: n. pag.

Washington Post. Web. 29 Mar. 2015. <http://www.washingtonpost.com/>. Talks about

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lawyer's opinion on the unconstitutionality. Gives information from constitution about

two thirds majority exceptions.

Madison, James. The Federalist Papers. Vol. 58. N.p.: n.p., n.d. Constitution.org. Web. 31 Mar.

2015. <http://www.constitution.org/>. Discusses why a supermajority is bad. Can be used

to relate to filibuster and cloture votes

Mariner, Joanne. "In Defense of the Filibuster." History News Network. N.p., 9 Dec. 2002. Web.

10 May 2015. <http://historynewsnetwork.org/>. Helps give parts of the opposite

argument so they can be better debated. Decent article, not too right winged that I want to

punch someone

McAuliff, Mike. "Filibuster Reform Opposed by Mitch McConnell, Senate Minority Leader."

Huffington Post 26 Nov. 2012: n. pag. Huffington Post. Web. 29 Mar. 2015.

<http://www.huffingtonpost.com/>. Talks about attempt to reform silent filibuster. Gives

possible compromises. McConnell quote can be used very well in CAP 10.

Siddiqui, Sabrina. "Filibuster Reform: Union Launches Advertising Campaign against Silent

Filibuster." Politico 15 Jan. 2013: n. pag. Politico. Web. 16 Mar. 2015.

<http://www.huffingtonpost.com/>. Recalls an attempt to abolish the silent filibuster

Topaz, Jonathan. "President Obama: Republicans Blocked 500 Bills." Politico 8 May 2014: n.

pag. Politico. Web. 31 Mar. 2015. <http://www.politico.com/>. Article talking about

Obama quotes on number of filibusters. Used for Obama quotes

United States. Cong. Senate. U.S. Senate Committee on Rules and Administration. Hearings on

the Filibuster Reform. Testimony of Sarah Binder. Washington: Brookings Institution,

n.d. Print. Testimony before congressional committee. Speaker political science

professor. Gives lots of info on history of filibuster

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