The Founding Fathers vs. The Filibuster – An Indictment

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Guest post by David De La Paz, Esq.

After 250 years of existence, the United States Senate should not have to be reminded that the American people have a right to be governed under the Constitution of the United States.

Unfortunately, as President Trump’s recent failed attempt to pass his SAVE America Act demonstrated, too many Senate Republicans avoid that responsibility at all costs.

Case in Point: The SAVE America Act

The SAVE America Act requires voter photo ID and proof of citizenship to vote in national elections, both of which were supported by at least 83 percent of Americans according to polls by Gallup and the Pew Research Center.

For virtually the entire time the bill was in the Senate’s possession from February 11, 2026 through August 8, 2026, the bill had the support of 50 of the 53 Republican senators.

That meant during this time that, absent the 60 votes needed for cloture to end the filibuster, they could have passed the bill with Vice-President JD Vance providing a tie breaking vote.

Despite this support among Republicans, none of the various attempts to pass the bill succeeded.

At a press conference on July 30, 2026, Senate Majority Leader John Thune claimed he is “for anything that we can do to get the SAVE America Act passed.” But at the same press conference, he was clear that “there aren’t going to be 50 votes to get rid of the legislative filibuster.”

On August 8, 2026, against the prospect of postponing a five-week August recess, a cloture vote to proceed was taken on a limited version of the bill offered by Senator Husted requiring only voter photo ID.

The vote was 52 to 46, still short of the 60-vote cloture threshold to break the standing filibuster imposed on all bills.

After the failed vote, the senators left town and won’t return until September 14, 2026, leaving little time to conclude Senate business by the October recess. The compressed time frame upon their return led many to conclude the Save America Act is “effectively dead.”

The Majority’s Choice: The Filibuster at All Costs

The sole reason the bill failed was because the filibuster was placed above all other considerations. What other considerations did Senate Republicans not deem worth giving up the filibuster? They were: 1) the seventy-seven million people who voted for Donald Trump; 2) their own constituents; 3) supporters of the Save America Act; 4) the Department of Homeland Security’s report that 250,000 non-citizens were found illegally registered to vote in California, Pennsylvania, New Jersey and Nevada after a review of their voter rolls, and that an additional 28,000 were found in ten other states; 5) that there are twenty-three states, which translates to 265 electoral votes and 216 House seats, that do not require voter photo ID to vote; and 6) the integrity of the mid-term elections.

What They Fear: Majority Rule

Given the bill’s strong public support and the President’s persistence in calling for an end to the filibuster to pass it, there was considerable pressure on Senate Republicans to resort to the so-called “nuclear option” to bypass the filibuster and pass the bill. Afterall, the filibuster has been overcome twice before by a simple majority in 2013 and 2017 for nominations to the executive and judicial branches.

But rather than acquiescing to calls for eliminating the filibuster, Senate Republicans mounted a counter offensive against the President and the bill’s supporters. A report from USA Today revealed leadership’s plan from an internal memo of the Republican conference, to defeat the President’s call for eliminating the filibuster.

The USA today report includes quotes of talking points distributed to senators and their staff expressing support for the bill, but saying they lack the votes to pass it or abolish the filibuster.

The memo also “urges them to rebuff the President’s demand that Republicans abolish the legislative filibuster,” USA Today reports. Senators were also encouraged to spread warnings that, without the filibuster, the Democrats will make Washington DC and Puerto Rico the 51st and 52nd states and pack the Supreme Court, among other things.

The memo from Senate Republican leadership exposes an ongoing and fundamental flaw in the Senate’s operation – a strategy to govern against the will of the people using the filibuster.

For six-months Senate Republicans gave no ground to sacrifice the filibuster to pass the bill.  What this reveals is that they are terrified of majority rule.

They refuse to lead without permission of their opposition. As long as that is the case, the Congress will not function as the Framers intended, and the American people are being governed in a non-constitutional manner.

The internal memo gives proof to the dilemma facing the Senate Republicans when it comes to  eliminating the filibuster in order to pass the SAVE America Act.

First, unlike the narrower scope of filibuster rule exceptions created by previous use of the nuclear option regarding judicial and executive appointments, this was a much different and more difficult matter of business.

Despite its importance and popularity, the SAVE America Act is an ordinary piece of legislation. The nuclear option doesn’t actually result in a written change to the Senate rule.

It is rather the result of a parliamentary maneuver that results in a new precedent being set in the interpretation of the rule to be applied narrowly to the particular business at issue.

But if a new Senate precedent were created here interpreting the cloture process to end the filibuster so as not to apply to this specific ordinary bill, the filibuster could easily be avoided for any ordinary bill from that time going forward. That was the point of the warnings in Senate leadership’s internal memo.

The idea of simple majority rule is feared more by the Senate Republicans than negative press, election integrity issues, the President, and his seventy-seven million voters.

They are more comfortable with the status quo. There is, however, one grave problem with the status quo that is being overlooked by the Senate and conventional wisdom: it is that the Senate is not operating as the Congress was designed under the Constitution, and a single Senate rule is a woefully inadequate substitute for it.

Indictment – Misappropriation of Electoral Governing Power

The filibuster exists in Senate Rule XXII and has a limited historical precedent. It is not a Constitutional requirement. The Constitution requires supermajorities in a limited set of circumstances: overriding vetoes, treaties, impeachments, constitutional amendments, and expelling members from Congress.

The Founders didn’t design the Senate to operate with a supermajority vote blockade before passing all ordinary legislation. However, that is precisely what Rule XXII does, it expands to all Senate business the supermajority limitation the Constitution carefully confined to extraordinary circumstances.

The fear driving the allegiance to the filibuster, and to its frequent contemptible and costly outcomes is unjustified. It underestimates the wisdom of the Founders’ design in establishing a bicameral legislature, majority rule, checks and balances, and protections for basic rights. In short, it shows that members of the Senate don’t trust the Constitutional structure.

While the filibuster’s defenders sometimes assert it protects minority rights, they fail to explain how the automatic obstruction of every ordinary bill, regardless of its substance, serves any purpose other than obstruction.

Neither do they explain what rights of the minority would be denied by the passage of the bill. Is it a right not currently protected under the Constitution, or a “right” recently invented?

In truth, the filibuster protects nothing. What it does is crush majority rights by misappropriating the duly elected governing power of the majority, and granting a veto power to the minority. It is an undemocratic and irrational mechanism of obstruction.

Such a power structure “gives greater scope to foreign corruption as well as to domestic faction, than that which permits the sense of the majority to decide,” says Alexander Hamilton in Federalist 22. It is easier to bribe a few to affect a handful, than enough to affect a majority.

The primary rationale for the filibuster’s existence is a reciprocal fear of what the minority may do when they are in the majority. The operating theory is to control the opposition by the majority permanently disabling its own rule. The process is one that blunts or frustrates majority will, rather than accomplish it.

The expectation for what the majority can produce is lowered and its accountability diminished. They blame the opposition for disagreeing with their policy initiatives. Governing by majority rule is spurned as something to be avoided – even considered by some as oppressive.

Expert Witnesses: Alexander Hamilton, James Madison, Joseph Story, John Adams

The United States Constitution was described as “the most perfect federal constitution that ever existed” by renowned French political philosopher Alexis de Tocqueville in 1835. It can still be trusted.  

In Federalist 22, Alexander Hamilton said the “. . .fundamental maxim of republican form of government. . . requires that the sense of the majority should prevail.” To that end, Article I of the Constitution created a bicameral legislature with two distinct chambers of the House and Senate.

They were each structured differently, but co-equal in lawmaking. A bill’s passage was by simple majority vote and neither chamber was in a superior position to block or dominate the other. Because of the differences in their structure and composition, they were to behave differently.

The House, with membership based on each state’s population and two-year terms, is closer and more responsive to the people. James Madison explained in Federalist 39 “The House of Representatives will derive its powers from the people of America. . .”

The Senate’s membership, based on equal suffrage of two senators per state and six-year terms, was meant to foster stability, deliberation and provide protection for smaller states.

James Madison also explained in Federalist 39 “The Senate, on the other hand, will derive its powers from the States, as political and coequal societies. . .”

In his classic Commentaries on the Constitution of the United States, Justice Joseph Story describes the balance between the two branches as follows:

No system could, in this respect, be more admirably contrived to ensure due deliberation and inquiry, and just results in all matters of legislation.

No law or resolution can be passed without the concurrence, first of a majority of the people, and then of a majority of the states.

The interest, and passions, and prejudices of a district are thus checked by the influence of a whole state; the like interests, and passions, and prejudices of a state, or of a majority of the states, are met and controlled by the voice of the people of the nation.13

The filibuster rule overrides the carefully crafted balance of the original design Justice Story described, and supplants it with something the Framers would reject.

Rather than maintaining a bicameral legislature that balances the interests of the people by a majority vote in the House, against the broader more enduring interests of the several states by a majority vote in the Senate, the filibuster rule infuses decisive power over what can become law into nine or fewer members of the minority party in the Senate.

The Senate becomes elevated to a superchamber with superpower being gifted to the minority. As a result, the House is subordinated to the Senate with the product of a House majority being subject to nullification – not for failure to obtain a majority in the Senate, but because of the lack of sufficient votes from the minority. This outcome more closely resembles a unicameral legislature than a bicameral one.

The Founders detested unicameral legislatures and for good reason.  Speaking of unicameral legislatures John Adams warned: “A single Assembly is liable to all the vices, follies and frailties of an individual. Subject to fits of humour, starts of passion, flights of enthusiasm, partialities of prejudice, and consequently productive of hasty results and absurd judgments …”

James Madison cautioned against requiring supermajorities for matters of regular legislative business in Federalist 58, saying “. . . 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.”

Alexander Hamilton describes the tyrannical impact a reversal of power would have on lawmaking in Federalist 22, arguing that requiring supermajorities for ordinary legislation can “subject the sense of the greater number to that of the lesser number” and “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 continues:

if a pertinacious minority can control the opinion of a majority respecting the best mode of conducting it; the majority in order that something may be done, must conform to the views of the minority. . . Hence tedious delays – continual negotiations and intrigue – contemptible compromises of the public good.

He described the result as “the impracticability of obtaining a concurrence of the necessary number of votes, kept in a state of inaction. Its situation must always savour of weakness – sometimes border upon anarchy.”

Closing Argument

There is no reason to doubt the Senate Majority’s sincerity in their frustration to underdeliver on promises they make to the American people, especially on matters such as the SAVE America Act.

But the fact that they are tightly bound to the filibuster, raises serious questions about what system of government they, or at least a significant portion of them, are pledged to “bear true faith and allegiance to” to use the language of their oath of office.

Questions like: Has the Senate lost confidence in the Constitution’s design of Congress? Have they abandoned majority rule? Were the participants at the Constitutional Convention naïve when they crafted checks and balances within the branches of government?

Being as preoccupied with avoiding bad outcomes as the Senate majority is, they should remember that failing to pass good outcomes carries with it a price as well. It may be a higher price.

Failing to pass the SAVE America Act, for example, before the next election may carry a price in deserving members not being elected, illegitimately elected members taking their place, and ineligible voters voting in our elections. Consider also the outcomes that have resulted from the filibuster.

Were they the outcomes that were promised? A fixation on only avoiding bad outcomes will never solve looming issues like: spending bills that preserve funding for wasteful programs, the national debt or the solvency of Medicare and Social Security.

Under the Constitution, acts of Congress, with few exceptions, are decided by majority vote. Its members are accountable to the people for their good and bad choices through trustworthy, fair and secure elections.

When elections result are reliable, the people do not need to fear bad policy decisions nearly as much as the politicians who made them. Avoiding future bad decisions while forfeiting their responsibility to make good decisions in the present, is not the role of Congress.

Majority rule is not a bug to be squashed or an obsolete artifact of a bygone era in need of replacement. It is the fundamental principle of our republican form of government, and the Senate is bound by their oath to follow it.

Permanent political surrender is not the answer. The Constitution’s design is. The people are entitled to nothing less. The Senate owes the people the Senate of the United States Constitution, not the senate of its own ill-conceived rule.

The country will survive bad outcomes of majorities making bad choices. It will do so when governing majorities are free to enact good public policy to make corrections.

It will also do so through elections that are designed to ensure that the majority’s true choices to serve in Congress and in the Whitehouse, are not denied their seat by corrupt or lax election laws and enforcement.

Verdict: Guilty  –  A Call to Action

The political reality is that now is the time when the people have the greatest influence over the behavior of their senators.

After the election it will be too late, and the people will be even more easily ignored. The people need to restore the Senate to what it should be and unseat any Senator who refuses to follow the Constitution’s design.    

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