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Equality Among Equals: Is the Senate Cloture Rule Unconstitutional?

Marquette Law Review, Vol. 94, p. 547, 2010

65 Pages Posted: 14 Jan 2011 Last revised: 6 Feb 2013

Michael Teter

University of Utah S.J. Quinney College of Law

Date Written: January 13, 2011

Abstract

The U.S. Senate now operates as a sixty-vote chamber. Nearly every action, from passing significant legislation to consenting to routine executive nominations, requires support from a supermajority of senators. The basis for the sixty-vote Senate rests with Rule XXII, defining the standard for invoking cloture to end debate. A largely ignored provision of the Constitution renders Rule XXII suspect. Article I, Section 3 states, in part, "Each Senator shall have one Vote." Conventional wisdom misidentifies this clause as serving only the basic purpose of denoting a change from the state-based voting practiced under the Articles of Confederation. The history of the Senate’s creation reveals, however, that the provision is better read as meeting the Framers’ goal of devising an active, effective upper chamber, and that they instilled in the “Each Senator” language the principles of equality and representation. Relying on the Supreme Court’s one person, one vote jurisprudence as a roadmap, the article argues that because Rule XXII serves to disproportionately weight its members’ votes, it violates Article I, Section 3’s command of senatorial voting equality.

Keywords: Senate, Filibuster, Cloture, Constitution, Legislation

Suggested Citation

Teter, Michael, Equality Among Equals: Is the Senate Cloture Rule Unconstitutional? (January 13, 2011). Marquette Law Review, Vol. 94, p. 547, 2010. Available at SSRN: https://ssrn.com/abstract=1739892

Michael Teter (Contact Author)

University of Utah S.J. Quinney College of Law ( email )

332 S. 1400 East, Room 101
Salt Lake City, UT 84112-0730
United States

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