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The Future of the Filibuster

When U.S. Sen. Bernie Sanders (I-Vt.) held the Senate floor for more than eight hours in December to speak against extending the Bush tax cuts, so many people tuned in online that the live feed from the Senate crashed. Although Sanders’ effort didn’t actually meet the definition of a filibuster (he was not technically debating a bill), it did resemble the Mr. Smith Goes to Washington ideal of a senator standing up for a principle, sometimes to the point of exhaustion.

The modern filibuster has been a far more bloodless affair, where one senator can delay a vote without leaving his or her office, says Michael Teter ’99, visiting assistant professor of politics whose article “Equality Among Equals: One Senator, One Vote and The Future of The Filibuster” appears in the winter volume of the Marquette Law Review.

Researched and written with the help of four Pomona students, the article is a constitutional critique of the Senate’s 60-vote cloture rule. It examines the history of the filibuster and lays the legal groundwork for challenging Rule XXII, which defines the standard for formally ending debate. By creating a supermajority, Teter argues that the rule violates the Constitution’s Article I, Section 3, which states in part that “Each senator shall have one vote.”

“We look at the history of that provision and the purpose and values behind it, and make the argument that what the framers meant is that each senator’s vote will be treated equally,’ says Teter. “The cloture rule discounts the votes of those even in a 58- or 59-seat majority, because it requires 60 votes to move forward on almost every legislative matter.”

The popular perception of the filibuster is often at odds with reality, says Teter. “While a lot of people think it’s always been used to talk a bill to death, it initially was intended to extend debate not to end it.” It wasn’t until 1891 that the filibuster was used to kill a bill. Since then, changes in Senate rules and procedures meant to fix the filibuster have in some ways made it easier to block legislation.

“If you think one of the goals of government is to accomplish things--and not everyone does--then the Senate is the broken piece,” says Tete. “A senator does have the ability to stop any action from occurring, but in the past that was exercised in the most limited of circumstances. Now you see senators doing it for any number of reasons, most of them politically partisan.”

In the first 40 years after cloture was established in 1917, the Senate averaged about one filibuster a year. That number started to grow in the ’70s and exploded in Barack Obama’s first two years as president, with more than 270 cloture motions filed. “With cloture, there are fewer social and political consequences to using the filibuster,” says Teter. “You don’t have to stand on the Senate floor and keep talking, and it no longer means that all Senate business is stopped. All you have to do now is say you want to filibuster something, and it’s treated as if you’re actually doing it.”

Teter’s case for challenging cloture doesn’t rely solely on the framers’ intent, which he acknowledges can be tricky to interpret. To support his argument, he cites U.S. Supreme Court decisions in ’60s legislative apportionment cases, particularly relating to the disenfranchisement of poor whites and Blacks in the South, that established the doctrine of one person, one vote.

The timely publication of “Equality Among Equals,” which coincides with a push by Democrats to reform filibuster rules and procedures, wouldn’t have been possible, says Teter, without his team of students--Kyle Grossman ’12, Sam Levy ’13, Chris McGuire ’11 and Nick Hubbard ’11--and the support of the College’s Summer Undergraduate Research Program. “We got to work in mid-May and the article was completed and submitted to law reviews by the first week of August. The students focused on different topics and really became experts in those areas.”

Teter, who majored in politics as an undergrad, says his next project will be tackling the issue of holds placed on judicial nominations, which have reached record numbers in the past two years. “I’m very focused on congressional gridlock and the need to actually govern, so I plan to stick with that topic.”

This article originally appeared in the Winter 2011 issue of Pomona College Magazine.

Research at Pomona