A collaboration between Lewis McLain & AI

“Killing the Filibuster to Save the Government: Why Rule XXII Must Be Reformed for Funding Bills”

Executive Summary

The United States Senate’s filibuster — a procedural relic born of accident, not design — now stands between the nation and its most basic obligation: keeping its government open. Rule XXII’s 60-vote requirement to end debate allows a minority of forty-one senators to block or delay essential appropriations. The result is a cycle of shutdown threats, economic costs, and public cynicism.

This paper reviews the filibuster’s history, constitutional context, operational failures, and reform options. It concludes with a practical amendment — the Funding Continuity and Accountability Amendment — establishing majority cloture for appropriations and continuing-resolution bills. The choice is not partisan. It is existential.

I. Origins and Evolution of the Filibuster

The filibuster was never part of the Framers’ plan. In 1806, the Senate unintentionally deleted the “previous question” motion that allowed a simple majority to end debate, creating a vacuum that enabled unlimited discussion. For decades this quirk lay dormant; the Senate was small, collegial, and rarely obstructed itself.

By 1917, amid World War I, obstruction had become intolerable. At President Woodrow Wilson’s urging, the Senate adopted Rule XXII, permitting debate to be cut off by a two-thirds vote. In 1975, amid rising partisanship, that threshold was lowered to three-fifths — 60 votes. Simultaneously, the “two-track system” allowed the Senate to shelve bills threatened by filibuster rather than endure endless floor speeches. That procedural convenience made the filibuster effortless, silent, and ubiquitous.

II. The Modern Filibuster: From Debate to Deadlock

Today, the Senate rarely conducts actual filibusters. A mere indication of opposition is enough to trigger the 60-vote barrier. This dynamic has transformed the Senate from a deliberative chamber into a veto point for any minority cohesive enough to withhold cooperation.

The consequences are concrete: appropriations stall; continuing resolutions lapse; federal employees go unpaid; markets shudder. In effect, the Senate’s internal rule now governs whether the federal government functions at all. No constitutional clause envisions that outcome.

III. Shutdowns as the Filibuster’s Logical Endgame

Government shutdowns occur when Congress fails to enact spending authority. Because every funding bill must clear cloture, the filibuster hands a minority leverage to extract concessions unrelated to the budget itself — or to block funding entirely for political gain.

The 1995–96, 2013, 2018–19, and 2025 shutdown crises all trace back to Senate impasses in which cloture votes failed or were never attempted. The spectacle of a global superpower furloughing its workforce over parliamentary procedure has become both farcical and damaging. As one senior analyst recently observed, “The world’s reserve-currency government should not be shut down by forty-one senators representing barely one-third of the population.”

IV. Constitutional and Democratic Context

Article I, Section 5 of the Constitution grants each chamber the authority to “determine the Rules of its Proceedings.” Nothing requires supermajority thresholds for ordinary legislation; the Framers reserved supermajorities for exceptional acts — treaties, impeachments, amendments — not for paying the military or keeping national parks open.

The filibuster therefore lacks constitutional pedigree. It is a self-inflicted constraint masquerading as a safeguard. Madison warned in Federalist 58 that such rules “transfer the power to the minority and make the government impotent.” Two centuries later, his warning reads as prophecy.

V. Attempts at Reform

Reform efforts have oscillated between abolition and cosmetic adjustment:

The Talking Filibuster Proposal — restores the requirement that senators physically hold the floor; symbolic but easily circumvented.
Graduated Thresholds — lowers the required votes over successive days; complex and still delays action.
Carve-outs — already exist for judicial and executive nominations, enacted through the “nuclear option” in 2013 and 2017.
Automatic Continuing Resolution Mechanisms — provide short-term protection but entrench gridlock by rewarding inaction.

Each reform chips at symptoms. None neutralizes the core flaw: a minority can still prevent timely funding.

VI. The Case for a Funding-Only Carve-Out

A narrow exemption for appropriations and continuing resolutions would:

Preserve deliberation while guaranteeing functionality. Ten hours of debate allows discussion without endless delay.
Avoid precedent creep. Limiting the carve-out to funding prevents claims of wholesale rule destruction.
Reinforce accountability. Majorities that fail to govern can be judged at the ballot box — a constitutional, democratic remedy.
End the shutdown weapon. Minorities could still oppose budgets on policy grounds, but they could not freeze payrolls for millions as leverage.

VII. Implementation Path

The Senate can adopt the amendment through one of two methods:

Formal Rule Change: A two-thirds vote under Rule V to amend Rule XXII.
Precedent (“Nuclear”) Route: The presiding officer, sustained by a simple majority, rules that cloture on funding bills requires only a majority. This creates binding precedent without formal text revision — the same mechanism used for nominations.

Either route is lawful under Article I, Section 5 and Senate precedent.

VIII. Anticipated Criticisms and Responses

Criticism 1: It destroys minority rights.
Response: Minority debate remains protected; only the power to veto funding ends. The House operates under simple majority rule and still functions.

Criticism 2: It invites partisan spending sprees.
Response: Fiscal restraint arises from politics, not procedure. A majority still answers to voters and debt markets.

Criticism 3: Future majorities could expand carve-outs.
Response: That risk exists but is outweighed by the certainty of recurring shutdowns under the status quo. Procedural rigidity is not virtue when it breeds dysfunction.

IX. Broader Democratic Benefits

Ending the funding filibuster would:

Restore credibility to Congress as a governing body.
Reduce market anxiety and credit-rating downgrades tied to shutdown threats.
Protect federal employees, contractors, and local economies dependent on government spending.
Reinforce the principle that elections — not procedure — determine governance.

X. Conclusion: The Rule That Ate the Republic

The filibuster was a parliamentary oversight that evolved into an instrument of paralysis. It has repeatedly thwarted civil-rights progress, delayed disaster relief, and now threatens the government’s ability to remain open. Preserving it for its own sake mistakes inertia for wisdom.

A living democracy cannot allow forty-one senators to silence fifty-nine. The Funding Continuity and Accountability Amendment, as I suggest, offers a targeted, constitutional fix. It kills the filibuster only where its mischief is lethal — the nation’s purse. If ever there were a moment to end this feature, it is now. What began as a quirk has become a crisis. Ending it is not radical; it is responsible governance.

Appendix A — Summary of Key Shutdowns and Filibuster Effects

Year	Duration	Principal Issue	Senate Cloture Vote Outcome
1995–96	21 days	Medicare, budget caps	Cloture failed twice on CRs.
2013	16 days	Affordable Care Act funding	Cloture motion rejected (54–46).
2018–19	35 days	Border wall appropriation	Cloture failed (50–47).
2025	Ongoing crisis	Omnibus funding, Ukraine aid	Filibuster threat prevented vote scheduling.

🏛 Proposed Amendment to Senate Rule XXII

(Draft Legislative Text — “Funding Continuity and Accountability Amendment”)

Resolved, That Rule XXII of the Standing Rules of the Senate is amended by inserting after paragraph 2 the following new paragraph:

(3) Notwithstanding any other provision of this rule, a motion to bring debate to a close on any measure, motion, or other matter the effect of which is to provide for appropriations, continuing appropriations, or the temporary funding of any department or agency of the United States shall be decided by a majority of Senators duly chosen and sworn.

Upon adoption of such a motion by a majority of Senators duly chosen and sworn, debate shall be limited to a total of ten hours, equally divided between the majority and minority leaders or their designees, after which the Senate shall proceed to vote on final passage.

Nothing in this paragraph shall be construed to limit the right of any Senator to offer germane amendments during the period of debate so limited, or to affect the application of this rule to any measure not described herein.

(4) The Presiding Officer shall certify any measure falling under paragraph (3) as a “funding measure” upon consultation with the Parliamentarian.

Effect:

Replaces the 60-vote cloture threshold with a simple majority for any bill that funds the government.
Caps post-cloture debate at 10 hours to prevent delay.
Preserves deliberation and amendments, avoiding claims that debate is being silenced wholesale.
Leaves the 60-vote threshold intact for all other legislation.