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

members, regardless of whether the members who were present participated in roll call votes or not. The court in Ballin observed that “the general rule of all parliamentary bodies is that, when a quorum is present, the act of a majority of the quorum is the act of the body” (United States v. Ballin 144 U.S. 1 [1892]).

Having lost in the Supreme Court on that point, House filibuster advocates realized they had little choice but to acquiesce to the will of the majority of the chamber. In contrast, proponents of the filibuster in the Senate, where it continued to be used, found support for their position in footnote six of the majority opinion in Lance, which clarified that the court does not require the rule of “a majority of the majority” in all circumstances, noting: “We intimate no view on the constitutionality of a provision requiring unanimity or giving a veto power to a very small group” (Gordon v. Lance 403 U.S. 1 [1971]).

Although critics of filibustering note, as stated previously, that the filibuster is not provided for in the Constitution or the Standing Rules of the Senate, Article I, Section 5 of the Constitution makes each house of Congress the judge of its own rules. That section and the Supreme Court's decision in Gordon v. Lance have generally been sufficient to prevent critics from gaining enough traction to raise a serious challenge to the Senate filibuster. In addition to the Supreme Court's implied permission for the Senate to preserve the right of unrestricted debate, filibustering is possible because Rule XIX of the Standing Rules of the Senate permits a senator, once recognized by the presiding officer of the Senate, to hold the floor until voluntarily relinquishing it. According to Rule XIX, Section 1(a):