Filibustering in the U.S. Senate By Lauren C. Bell

Congress would be more efficient and responsive to the public's will if a simple majority was able to limit debate in the Senate.

Despite controversy over the use of the filibuster, the U.S. Supreme Court has twice tackled cases that have led to jurisprudence suggesting that the filibuster, although not provided for explicitly in the Constitution or in the Standing Rules of the Senate, is permissible. In United States v. Ballin (1892) and Gordon v. Lance (1971), the court ruled that filibustering and other elements of legislative procedure in the House and Senate are beyond the scope of judicial review, provided that neither chamber creates rules in explicit violation of the Constitution. These decisions were expanded by the court's decision in Nixon v. United States (1993), a case that dealt with the impeachment of a federal judge and inquired into whether the Senate had violated the Constitution by failing to hold an actual trial. The court found that there had been no violation and held that the Senate was permitted to determine how it wished to try impeachments, even though the Constitution seemed to be specifying how to proceed.

In addition, whereas neither United States v. Ballin (1892) nor Gordon v. Lance (1971) had anything to do with filibustering per se (the former considered what would constitute a quorum in a legislative assembly when none was prescribed in the Constitution, the latter focused on West Virginia's supermajority requirement in a voter referendum regarding a tax increase), both cases illustrated the court's position on filibusters and other parliamentary tactics. The Ballin case was initiated by opponents of Speaker of the House Thomas Reed, who had changed the Rules of the House of Representatives to eliminate the possibility of filibustering in that chamber through the use of a device known as the “vanishing quorum.” The vanishing quorum was a dilatory tactic en vogue in the House of Representatives during the nineteenth century in which representatives from the minority party declined to vote on pending measures and forced the majority party to fill a majority of seats in the House in order to reach the quorum necessary to transact business. The court disappointed opponents of Reed's efforts to eliminate dilatory tactics that made creative use of the chamber rules; it upheld Reed's ruling to eliminate the vanishing quorum and found that a quorum required only the presence of a majority of