20 J.L. & Pol. 505 (2004)
Majority Voting in Congress: Further Notes on the Constitutionality of the Senate Cloture Rule

handle is hein.journals/jlp20 and id is 515 raw text is: Majority Voting in Congress: Further Notes on the
Constitutionality of the Senate Cloture Rule
John C. Roberts*
I. INTRODUCTION
The venerable tradition of unlimited debate in the United States Senate,
and the Cloture Rule that attempts to circumscribe it, have been contentious
subjects among both politicians and scholars throughout much of our history.I
For at least the last 150 years, senators have used the weapon of extended
debate to prevent majority action on some controversial question. Thus, each
generation must address anew the difficult issues surrounding the propriety
and constitutional validity of both the filibuster (a pejorative term for the
tradition of extended debate when it is pushed beyond normal limits) and
the Cloture Rule that requires the votes of sixty senators to close debate. The
issue is again being discussed as a result of Democratic attempts to block
Senate approval of certain controversial judicial nominations by President
Bush through use of the filibuster. Majority Leader Bill Frist has threatened
publicly to change the Senate rules in order to reduce the number of votes
necessary to cut off debate on a rules change, and then to amend the rules to
prohibit filibusters of judicial nominations.3 Two Senate Committees even
held public hearings on the policy and constitutional issues involved.4
Professor of Law and Dean Emeritus, DePaul University College of Law. I am indebted to Mark
Giangrande of DePaul's Rinn Law Library for his help on congressional materials. Professor Stephen
Siegel provided both advice and historical perspective. I first encountered these issues while serving as
General Counsel to the United States Senate Committee on Armed Services from 1977 to 1980.
1 See, e.g., SARAH A. BINDER& STEVENS. SMITH, POLITICS OR PRINCIPLE? FILIBUSTERING IN THE
UNITED STATES SENATE (1997); Catherine Fisk & Erwin Chemerinsky, The Filibuster. 49 STAN. L. REV.
181 (1997); ROBERT C. BYRD, THE SENATE, 1789-1989, S. DOC. No. 100-20, at 93-163 (Vol. 2, 1991);
CHARLES TIEFER, CONGRESSIONAL PRACTICE AND PROCEDURE 691-766 (1989).
2 See, e.g., Norman Omstein, The Debate to End All Debate, N.Y. TIMES, May 14, 2003, at A25;
Helen Dewar, GOP Senators Fail to Force Vote on Estrada Nomination, WASH. POST, Mar. 7, 2003, at
A06.
3 See, e.g., Carl Hulse, From One Esteemed Corner, A Lesson About the Senate's Filibuster Rule,
N.Y. TIMES, June 5, 2003, at A32; Helen Dewar, Filibuster Rule Change is Urgent, Frist Says; Daschle
Calls Proposal a GOP 'Overreaction, 'WASH. POST, June 6, 2003, at A25. As this article goes to press,
Senate Republicans are again threatening to modify the Rule at the start of the 109th Congress. Charles
Babington, GOP Moderates Wary of Filibuster Curb, WASH. POST, Jan. 16, 2005, at A05.
4 Judicial Nominations, Filibusters, and the Constitution: When a Majority Is Denied Its Right to
Consent: Hearing Before the Senate Subcomm. on the Constitution, Civil Rights, and Property Rights,

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