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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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