In his recent Wall Street Journal op-ed, “America Needs the Filibuster,” former Sen. Ben Sasse argues the filibuster “provides a bulwark against consolidated power.” Later, he states the filibuster rule, “plays a critical role in limiting and dividing power … the filibuster safeguards the spirit of the Constitution’s anticonsolidation objective.” The truth is, if the filibuster rule were included in the Constitution, it would have undermined the republican form of government the Framers created.
The filibuster rule undermines majority rule
In Federalist 22, Alexander Hamilton described “the fundamental maxim of republican form of government … that the sense of the majority should prevail.” The filibuster rule, through its creation of a supermajority 60-vote cloture requirement, blocking a bill’s passage when supported by a majority, frustrates that “fundamental maxim.”
The 60-vote supermajority cloture requirement creates a veto power for up to 9 members of the minority party (depending on the size of the majority). The rationale for this approach is similar to the use of supermajorities in the failed Articles of Confederation (Articles) — the governing document that preceded the Constitution.
Drawing on his experience under the Articles, Alexander Hamilton, in Federalist 22, characterized the use of supermajorities as “poison.” He said, “To give a minority a negative upon the majority … is in its tendency to subject the sense of a greater number to that of the lesser number,” and serves to “destroy the energy of government, and to substitute the pleasure, caprice or artifices of an insignificant, turbulent or corrupt junto, to the regular deliberations and decisions of a respectable majority.”
He warned that when national action was needed, if a stubborn minority can “controul the opinion of a majority” regarding the best way of conducting business, “the majority in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will over-rule that of the greater,” leading to “tedious delays” and “contemptible compromises of the public good.”
The effect of supermajorities Hamilton was describing is indistinguishable from the effect of the supermajority cloture vote requirement of the filibuster rule. It takes control from the majority and gives it to a few in the minority.
The filibuster rule distorts constitutional design
The Founders designed regular business to be determined by a majority vote in both chambers under Article 1, Section V of the Constitution, providing “a majority of each shall constitute a quorum to do business.” They also restricted the use of supermajorities to extraordinary circumstances: overriding vetoes, treaties, convictions in impeachment trials, constitutional amendments, and expelling members from Congress.
In U.S. v. Ballin (1892), importers challenged a federal statute’s validity, arguing that it was improperly passed by the House because the Speaker counted nonvoting members present in the chamber in establishing a quorum under a House Rule. In rejecting the claim, the Supreme Court explained:
“When a majority are present the house [is] in a position to do business. Its capacity to transact business is then established, created by the mere presence of a majority, and does not depend upon the disposition or assent or action of any single member or fraction of the majority present.”
Ballin is clear that the mere presence of a majority establishes the authority of a chamber of Congress to conduct business, notwithstanding the lack of approval from any fraction of its members. The filibuster rules’ 60-vote cloture threshold blocking the action of a majority directly conflicts with the Constitution’s grant of authority.
The Constitution was meticulously designed to separate the powers of the federal government and carry out the fundamental maxim of majority rule, as Hamilton described. The Constitution separates federal powers among our three branches of government: Executive, legislative, and judicial. In Federalist 48, James Madison cautioned:
“It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it … a mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.”
Regarding the legislative branch, Madison warned: “The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.” Indeed, we see with the filibuster rule, it has had a deleterious and destabilizing effect on Congress.
Congress is a bicameral legislature with a House of Representatives (House) and a Senate. The chambers are coequal partners in lawmaking. The House derives its powers from the people. Its membership is based on population, with Representatives serving two-year terms. Its representation is more responsive to the people. The Senate’s membership consists of two senators per state — each having six-year terms. The Senate derives its powers from the states, as political and coequal societies. It was designed to provide stability, due deliberation, and to protect smaller states.
Speaking of this design, Justice Joseph Story wrote in his classic Commentaries on the Constitution of the United States, “No system could, in this respect, be more admirably contrived to ensure due deliberation and inquiry, and just results in all matters of legislation.”
It must be remembered that Hamilton and Madison were seeing the effects of supermajorities from the standpoint of the unicameral (single-chamber) legislature created by the Articles. The filibuster rule’s grant of its veto power in the Senate adds another adverse impact on a bicameral legislature, precisely because the power shifted to the minority now rests in one chamber of Congress, and has destabilized the coequal balance between the two chambers. A small minority block of one chamber can stop the action of both chambers.
The House is subordinated to the Senate, and at a permanent disadvantage. The disparity of power is such that the operation of Congress more closely resembles a unicameral legislature, rather than the Framers’ bicameral design.
The subordination of the House to the Senate also means the people are subordinated to the states. Their connection to Congress is lost, and held hostage by a small block of the minority in a single chamber, who are generally opposed to their interests in a chamber that is not designed to represent the people’s individual interests.
The Senate’s failure to pass the SAVE America Act — which requires photo ID and proof of citizenship to vote, supported by 83% of Americans according to Gallup polls — is one example of the disconnect between the people and the Senate and, by extension, Congress.
Another example is the filibuster rule’s block of the Protection of Women and Girls in Sports Act of 2025. The bill kept men out of women’s sports — an issue supported by 79% of Americans according to a New York Times/Ipsos poll.
In this respect, the distorted Congress of the filibuster rule is no better than the Articles of Confederation. It has produced an unresponsive and weak Congress, lacking the fortitude necessary to address issues that are essential to preserving our republic, such as our $40 trillion national debt, election integrity, immigration enforcement, and other issues. As long as the filibuster rule remains, these issues will not be resolved.
Warning against the use of supermajorities, James Madison in Federalist 58, said, “the fundamental principle of free government would be reversed. It would be no longer the majority that would rule; the power would be transferred to the minority.”
SEVENTY-SEVEN MILLION VOTES. ONE RULE TO ERASE THEM ALL
Abolish the filibuster and return to constitutional government
French political philosopher Alexis de Tocqueville described the Constitution as “the most perfect federal constitution that ever existed.” It needs no help from a Senate rule. Contrary to the claims of Sen. Sasse: It is not a “partisan’s dream” to abolish the filibuster rule — it is a return to the Founders’ dream. Neither is it a mistake — it is a return to constitutional governance. If state legislatures can function without a filibuster rule, there is no reason the United States Senate cannot do likewise.
It is time to treat the Constitution with the respect it deserves, and with the commitment to its principles every senator is duty-bound to uphold. Under Article VI, Clause 3 — every member of Congress “shall be bound by Oath or Affirmation to support this Constitution.” America needs the Constitution, not the filibuster rule.
David De La Paz, Esq., is a retired felony prosecutor and former senior counsel to multiple Florida House Speakers. He has successfully argued before the Florida Supreme Court and spent 17 years advising legislative leadership on constitutional structure, legislative process, and public policy.