There is no clause in the U.S. Constitution that speaks to any form of filibuster. It is only a Senate Rule (Rule 22). And the form of ending a filibuster by a “cloture” vote dates back only to 1917.
From the Senate website:
The Senate tradition of unlimited debate has allowed for the use of the filibuster, a loosely defined term for action designed to prolong debate and delay or prevent a vote on a bill, resolution, amendment, or other debatable question. Prior to 1917 the Senate rules did not provide for a way to end debate and force a vote on a measure. That year, the Senate adopted a rule to allow a two-thirds majority to end a filibuster, a procedure known as "cloture." In 1975 the Senate reduced the number of votes required for cloture from two-thirds of senators voting to three-fifths of all senators duly chosen and sworn, or 60 of the 100-member Senate.
The use of the filibuster has drastically changed over the past fifty years. Beginning around 1970, what had been a rare event, filibusters began to increase geometrically until now there are more than 250 times as many filibusters per year than at any time in the first 50 years of its use.
250 times as many PER YEAR!
More importantly, the original idea that an impassioned Senator, willing to put his body on the line to defend his minority opinion has become a de facto threshold for passing any legislation. Simply by “claiming” a filibuster, any Senator, with no effort on his part, can require the body of the Senate to act as a whole to move on to consideration of the bill.
And the rest of his voting bloc do not even have to be in DC since the threshold is 60 votes FOR ending debate.
This was neither the intent, nor the use of a filibuster until partisan politics bastardized the rule as a way of impeding process.
It is time to update the procedure for cloture, not to eliminate the filibuster. We need pressure to reach bipartisan compromise and to ensure the rights of the minority.
It is time to require that those who want to support a filibuster put their own bodies on the line. They need to be present in the Senate chamber when a cloture vote occurs. Being lazy and not even attending the vote is inexcusable; and trying to have it both ways by avoiding a vote and then claiming that they “didn’t vote to oppose cloture” is immoral.
It is time to revise the cloture rule so that when the chair calls for a vote on, that it be 3/5 of the votes cast, not 3/5 of the total number of senators.