Filibuster abuse destabilizes government and is unconstitutional

Filibuster has become a popular tool for legislators. “Republicans have held the U.S. Senate hostage despite their minority status and losses in the last election,” says Merton Bernstein, emeritus professor of law at Washington University in St. Louis.

“Indeed, the threat of a filibuster enables the minority to exact concessions that the electorate had already rejected in several elections. This sabotage of the democratic process not only shuts down the legislative process, short circuits the confirmation of presidential nominees, but also threatens large foreign purchases of U.S. bonds that lower interest rates for federal, state and business borrowing.”


Bernstein, former counsel to U.S. Senator Hubert H. Humphrey and Legislative Assistant to Senator Wayne L. Morse, says that the supermajority requirements of Senate Rule XXII, which guides filibusters, are unconstitutional and must be fixed.

“Rule XXII’s supermajority requirements violate the command of Article 1, section 3 and its successor, the Seventeenth Amendment, that ‘each Senator shall have one vote,’” Bernstein says.

“Moreover, Article V of the Constitution, governing its amendment, provides ‘that no state, without its consent, shall be deprived of its equal suffrage [vote] in the Senate.’ The one-vote and equal suffrage provisions make clear that each senator’s vote must be the equal of every other senator’s vote, otherwise the votes of senators in a successful minority would be worth more than the votes of senators in a defeated majority. Thus, Rule XXII’s two supermajority requirements, to impose cloture and to amend the supermajority provision, violate the Constitution’s one vote per senator provision.”

Read more in Bernstein’s recent Huffington Post piece, “Senate Filibuster Riot Destabilizes Government, Imperils Foreign Purchase of U.S. Bonds, Violates the Constitution,”