Reforming the Filibuster

This Article evaluates the tradition of unlimited debate in the Senate and argues that a refusal to vote for cloture should be changed from an absolute to a suspensory veto. Part I explains that for most of its history, the Senate operated under the premise that a determined majority should have the right to govern. In the last forty years, however, that assumption has eroded to the point that on most issues the sixty-vote threshold for cloture is treated as the equivalent of a vote on the merits. This substantive supermajority requirement is unjustified, especially since no internal deliberative benefits flow from it given that filibustering senators are no longer required to hold the floor as was common in the past. Accordingly, I propose that forty-one senators have only the power to delay for one year a bill or nomination that reaches the floor. This idea is modeled on the current power of the British House of Lords to delay most legislation passed by the House of Commons for up to a year. Such a change would encourage dissident senators to make their case (thus providing some of the advantages of extended debate) without giving them a powerful minority veto. Part II of the Article, in part, reviews the struggle between the Lords and the Commons that led to the creation of a suspensory veto there, and points out that the debate was quite similar to the one that we are now having about the filibuster. In both cases, the question involves how a countermajoritarian institution should be accommodated within a democratic legislature? Finally, I explore how other institutions can apply pressure to the Senate to accept such a change, by looking at three prior instances in which the Senate was forced to climb down and abandon a rule or practice that gave a minority in the chamber special privileges.foreve