Law and Theory Behind a Procedural Oddity

Law & Theory Jul 29, 2021

Written by Kemal Kongar

Cover image from Hulton Archive/Getty Images.

With Democrats taking control of the legislative and executive branches following the 2020 election, just like the Republicans in 2016, the spotlight is once again on how much of their agenda they will be able to pass into law without being ‘filibustered’. One familiar with other democracies, no matter the number of chambers or the powers vested in the executive, may question why such points are being raised about the capabilities of a party that, for all intents and purposes, controls government. This situation becomes even more confusing if said person reads the Constitution of the United States and reaches the correct conclusion that a simple majority in both chambers and control of the Presidency allows for any law (that does not amend the Constitution) to be passed by the party in charge. This would be in line with all other developed democracies--no nation requires more than a simple majority to pass day-to-day laws needed to govern the country. Thus, it is important to examine how the legislative branch of the most influential democracy in the world came to a standstill due to what one may call a procedural oddity.

Existing in some form or another in numerous countries and political systems, filibustering commonly refers to running the clock down on formal debate or vote time, effectively blocking the passing of legislation. In the United States Senate, unless a cloture motion is approved, senators can talk indefinitely, filibustering legislation they do not wish to see come to a vote. The cloture motion, which forces the end of debate on a given bill, can only be passed with a three-fifths majority, commonly referred to as a “filibuster-proof majority”. Through this procedural rule, the Senate ends up working as a chamber that requires broad and usually bipartisan consensus to pass laws.

Given the Senate decides on its own procedures, it has the power to modify or abolish the filibuster at any given time with a simple majority. However, no matter which party controls the chamber, the filibuster has remainedbeen maintained as a core part of the legislative process in the upper house. Although exceptions exist to the three-fifths rule for issues such as confirming cabinet members or passing a yearly budget reconciliation to sort out spending, most legislation requires 60 votes to overcome the filibuster. So, why would a party that has just won a majority of seats purposely handicap its legislative efforts by asking for input and confirmation from the minority? The answer lies partially in the foundational ideas of the United States and partially in the Senators’ interpretations of the purpose of their chamber.

On the first point, James Madison and others famously wrote about the importance of curbing factions in the Federalist Papers. The Founders were afraid of what we would now call ‘direct democracy’ and opted to create a state that, at its core, ran on representative democracy. More than delegating one’s rights to pass and administer laws to elected officials, this form of democracy also functions as a check on populist sentiment that may be brewing amongst certain groups within the citizenry. By placing strategic checks and balances—including regular elections— in such a way that no single group or person can pass legislation without broad consensus from those that may not subscribe to their ideas, the Founders intended to create a state that based its political philosophy on the popular will but had institutional stability not associated with democracies up to that point. This was achieved through two chambers that checked each other and a presidency that governed with, not independent of, the legislature. The House of Representatives, as the lower chamber, was meant to be the “People’s House” as it was the only directly elected part of the federal government.

Representatives were meant to act as the voice of the people, fighting for their interest in as direct a manner as possible. The Senate, on the other hand, was composed of people chosen by state legislatures. Yes, every Senator fought for their state but this did not necessarily line up with the interests of the majority in said state. Similarly, electors were given much more leeway in vetting and voting for the President. This system was concocted in order to balance democracy with good governance and stability, guarding the state against the whims of public opinion. The House on its own could not pass legislation and needed approval from the Senate and the President, neither directly chosen by the people, to enact laws. As democracy in the United States evolved, other parts of the federal government changed to resemble the House by giving ever increasing power to the voters. Electors became bound mostly to the popular vote in their states and, with the passing of the 17th Amendment, Senators began to be directly elected by the people. While some may argue that these reforms made the United States more ‘democratic’, they undoubtedly went against the Founders’ original intentions for the composition of the federal government with its intricate system of checks and balances.

Regarding the second point, as the Senate began to lose its unique place in government – the chamber that was appointed rather than elected – its members started to worry about over-politicization. If Senators were bound by elections and popular sentiment just like their counterparts in the House, what was the point of the Senate? Thus began the counter-majoritarian defense of the Senate and its procedures: while the chamber was not meant to be ‘anti-democratic’, it was not to function as a one-to-one tracker of public opinion – the purpose of the House, as some would argue. When this line of reasoning is taken to its logical conclusion, it only makes sense that a simple majority is not enough to pass bills in the Senate.

This takes us to the filibuster in its current form. What started as an oddity has been deeply entrenched in the procedures and culture of the Senate. Unless a party wins a filibuster-proof majority in an election, a feat very rarely accomplished, they need to work with the opposition to pass bills. This gives the minority power over governance and aims to maintain the Senate’s place as the more erudite of the two houses – whether this is a valid argument or not is open to further discussion. Although they are elected by the same people, Senators think of themselves as more than simple Representatives. They see themselves as products of the Founders’ vision, even though the idea that a simple majority in the Senate would not be enough to pass regular bills would have been unthinkable before the 19th century. The modern Senate aims to counter democratic reforms that have taken place since the signing of the Constitution in order to curb direct democracy from gaining too much influence in the federal government. Whether you agree with this line of thinking or not, there are certain senators, such as Ben Sasse (R-NE), that want to roll back a century of reform and return the Senate to its original state. While it stands as too radical for most members, their support for the filibuster can be seen as a politically viable means to achieve the same goal – divorcing the Senate from public opinion.

This view of the Senate as a counter-majoritarian, or minoritarian, chamber is no longer shared by all members. While the filibuster was reformed in the past, there is now a growing number of Senators calling for its removal altogether. With increased partisanship and a political landscape that is growing ever more hostile to ‘the other side’, the Senate has come to a standstill. It is now quite rare to see bills that require filibuster-proof majorities become law. With challenges to liberal democracy becoming ever more commonplace, citizens and their elected representatives must be on the same page.

Whether this is done with or without the filibuster is up to the Senate. However, if such a system is to remain in place, the upper house needs radical reform to reduce partisanship and once again aspire to be the greatest deliberative body in the world. However, if this is deemed a challenge too tall even for a system that derives its legitimacy from the oldest active codified constitution in the world, the filibuster must be abandoned for the sake of good governance and stability – things for which the Senate was originally intended to stand for.


“The Constitution of the United States: A Transcription.” Accessed March 25, 2021.

“What Is the Filibuster?” Accessed March 25, 2021.

Bacon Jr., Parry. “What Democrats Can't Do as Long as the FILIBUSTER Remains in Place - and What They Can,” February 1, 2021.

“The Filibuster Is an Oddity That Harms American Democracy.” Accessed March 25, 2021.

“Federalist Papers: Primary Documents in American History: Full Text of the Federalist Papers.” Accessed March 27, 2021.

Sasse, Ben. “Opinion | Make the Senate Great Again,” September 8, 2020.