2

From my reading on the filibuster, I get the impression that the filibuster in the US Senate today is equivalent to requiring a three-fifths majority. Why doesn't the Senate just change the rule to require a three-fifths majority to pass a bill?

3
  • 5
    The filibuster was never intended and it was just an accident of rules changes that made it need 60 votes to end a debate.
    – Joe W
    Jan 8 at 0:54
  • 1
    @JoeW sure, but the original standing-up hold-your-piss filibuster was amended in a way that was clearly intended to maintain the supermajority needed to pass a vote (except in specific cases, I know). So one could imagine amending it further the way OP said. In fact, during the nuclear option debate in 2021 the supermajority for legislation was openly considered, as such, by some senators to be a feature of the Senate. Jan 8 at 3:51
  • @Gouvernathor What I mean by that was the filibuster was not present when the country was founded and it was only added later by rules changes. Some think that this was an unintended change as a result of trying to simplify the rules. The original intention for the senate was always to pass a bill with a simple majority and not to require 3/5ths to stop debate and let a bill come up for vote. If anything the needed change would be to actually require a filibuster like the do at the state level instead of just saying you want to.
    – Joe W
    Jan 8 at 16:01

2 Answers 2

2

Yes, they could, and this would probably be constitutional.

The rules of the House of Representatives include:

A bill or joint resolution, amendment, or conference report carrying a Federal income tax rate increase may not be considered as passed or agreed to unless so determined by a vote of not less than three-fifths of the Members voting, a quorum being present.

This has never been overturned in court and could presumably be extended to non-tax-related bills. So it seems that Congress can adopt rules that mandate a supermajority for legislation.

Edit: so why don't they? Probably because the modern filibuster mostly benefits people in the minority party, so the majority has little interest in making it more permanent. It only survives because some more moderate members of the party in the majority want to keep it.

1
  • Do you have any evidence that it has been challenged in court giving the courts a chance to rule on it in the first place? Unless someone has challenged it in court they will not look at it more making a ruling on it. Also should be noted that there has been attempts to make that a constitutional amendment. govtrackinsider.com/…
    – Joe W
    Jan 9 at 20:50
-3

You can't change the threshold of passing bills with house rules, that threshold is determined by the Constitution.

If you want to put a supermajority threshold on these things, you have to insert it in the form of another layer of procedure such as: "You need supermajority to bring the bill to a vote", which amounts to the same thing but does not contradict the Constitution.

It's worth noting that these mechanisms - arguably - are not real supermajority, since house rules can be changed with a simple majority any time. These hosue rules are only as strong as the norms which bind them in place. In this instance, the filibuster is strong because there is a strong institutional norm which holds it in place.

4
  • 8
    Which article of the constitution specifies that bills are passed by simple majority?
    – James K
    Jan 8 at 19:11
  • 2
    In partial answer to that question, there is a Constitutional rule that the VP has a deciding vote in cases in which the Senate is equally divided. But I think this is the only reference to majority voting. There is an understanding that all decisions are made by a simple majority, except those which explicitly require a supermajority (overruling vetos, a conviction in impeachment trials) But this is not made explicit in the Constitution! Perhaps the authors thought this so obvious as to not need spelling out.
    – James K
    Jan 8 at 22:01
  • @JamesK If not simple majority then what? In the absence of details, even reaching a consensus on which threshold is correct would have to be done through simple majority. The requirement is born out of necessity. Jan 9 at 7:24
  • The notion of majority is understood but never actually stated. There isn't a necessity. The Senate could have decided (unanimously) to proceed on the basis of unanimity. This isn't so far fetched. Many decisions of the European Council have required consensus. consilium.europa.eu/en/council-eu/voting-system/unanimity When there were 26 senators and no parties, this might even have be workable. Alternatively it could be that there should be unanimity among the states. So there are other models of a Senate that are not based on majority voting.
    – James K
    Jan 9 at 18:01

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .