Boston College Law Review Volume 55 | Issue 1 Article 3 1-29-2014 The iF libuster and the Framing: Why the Cloture Rule is Unconstitutional and What to Do About It Dan T. Coenen University of Georgia School of Law,
[email protected] Follow this and additional works at: http://lawdigitalcommons.bc.edu/bclr Part of the Constitutional Law Commons, Law and Politics Commons, and the Legal History Commons Recommended Citation Dan T. Coenen, The Filibuster and the Framing: Why the Cloture Rule is Unconstitutional and What to Do About It, 55 B.C.L. Rev. 39 (2014), http://lawdigitalcommons.bc.edu/bclr/vol55/iss1/3 This Article is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information, please contact
[email protected]. THE FILIBUSTER AND THE FRAMING: WHY THE CLOTURE RULE IS UNCONSTITUTIONAL AND WHAT TO DO ABOUT IT DAN T. COENEN* Abstract: The U.S. Senate’s handling of filibusters has changed dramatically in recent decades. As a result, the current sixty-vote requirement for invoking clo- ture of debate does not produce protracted speechmaking on the Senate floor, as did predecessors of this rule in earlier periods of our history. Rather, the upper chamber now functions under a “stealth filibuster” system that in practical effect requires action by a supermajority to pass proposed bills. This Article demon- strates why this system offends a constitutional mandate of legislative majoritari- anism in light of well-established Framing-era understandings and governing substance-over-form principles of interpretation.