Thomas Geoghegan writes compellingly in a New York Times Op-Ed about something that has been bothering me of late, and that is the fact that to get anything done in the US Senate requires a super majority of 60 votes in order to overcome the inevitable filibuster. Is that how the Founding Fathers intended it to work?
But the Senate, as it now operates, really has become unconstitutional: as we saw during the recent health care debacle, a 60-vote majority is required to overcome a filibuster and pass any contested bill. The founders, though, were dead set against supermajorities as a general rule, and the ever-present filibuster threat has made the Senate a more extreme check on the popular will than they ever intended.
This change to the Constitution was not the result of, say, a formal amendment, but a procedural rule adopted in 1975: a revision of Senate Rule 22, which was the old cloture rule. Before 1975, it took two-thirds of the Senate to end a filibuster, but it was the “Mr. Smith Goes to Washington” filibuster: if senators wanted to stop a vote, they had to bring in the cots and the coffee and read from Grandma’s recipe for chicken soup until, unshaven, they keeled over from their own rhetorical exhaust.
For the record, nothing like Senate Rule 22 appears in the Constitution, nor was there unlimited debate until Vice President Aaron Burr presided over the Senate in the early 180os. In 1917, after a century of chaos, the Senate put in the old Rule 22 to stop unlimited filibusters. Because it was about stopping real, often distressing, floor debate, one might have been able to defend that rule under Article I, Section 5 of the Constitution, which says, “Each house may determine the rule of its proceedings.”
Geoghegan goes on to make a compelling case that there is ample evidence in the Constitution itself and in the Federalist Papers and other writings to make clear what was originally envisioned, and how the current situation deviates from it and disenfranchises the Vice President, whose vote was intended to break deadlocks when the Senate is “evenly divided”. Under the current rules that never happens — because it takes 60 votes to get anything done, and it ends up being a rogue senator who has the deciding vote. He concludes:
What can be done about the procedural filibuster? There are several promising lines of attack.
If the House passed a resolution condemning the use of the procedural filibuster, it might begin to strip the supermajority of its spurious legitimacy. It’s the House that has been the great victim of the filibuster, and at least with such a resolution that chamber could express the grievance of the people as a whole against this usurpation by a minority in the Senate.
The president of the Senate, the vice president himself, could issue an opinion from the chair that the filibuster is unconstitutional. Our first vice presidents, John Adams and Thomas Jefferson, felt a serious obligation to resolve the ties and tangles of an evenly divided Senate, and they would not have shrunk from such a challenge.
We citizens could also demand that our parties stop financially supporting senators who are committed to the filibuster, and we ourselves could deprive them of fund-raising dollars.
And we needn’t rule out the possibility of a Supreme Court case. Surely, the court would not allow the Senate to ignore either the obvious intent of the Constitution.
Whether any such approach works, the founders would have expected us to do something about this unconstitutional filibuster. In Federalist No. 75, Hamilton denounced the use of supermajority rule in these prophetic words: “The history of every political establishment in which this principle has prevailed is a history of impotence, perplexity and disorder.” That is a suitable epitaph for what has happened to the Senate.