Yesterday Thomas Geoghegan argued in The New York Times that the Senate filibuster is “at worst, unconstitutional and, at best, at odds with the founders’ intent.” However, the most rudimentary reading of the Constitution suggests that the Founders wanted the passage of legislation to be exceedingly difficult in order to prevent a slim majority from ruling the country with impunity.
If the Founders were so against supermajorities (as the author suggests), then why is a “two thirds” vote in Congress required no less than 5 times in Article I of the Constitution (including the override of a veto)? In fact, every specification in the Constitution that deals with real action like impeachment, determining House and Senate rules, or overriding a veto requires a supermajority. Only merely conducting business requires a simple majority. The Founders wanted and required a supermajority on matters of import to restrain the federal government from usurping the freedom and liberty of the United States and its citizens.
Geoghegan further naively claims that the 60 vote cloture requirement undercuts the Vice President’s ability to be a tie-breaker. Yet, according to the Senate’s own out-of-date webpage on the subject (it still lists Cheney as Vice President), since 1789, the Vice President has cast 242 deciding votes—a significant number considering the rarity of the situation.
Even Senators in the majority party have spoken out on the importance of current Senate rules and procedure. In 2005 when Senate Majority Leader Frist was contemplating the “nuclear” option, former Senators Malcolm Wallop and Jim McClure wrote in the Wall Street Journal that while they were personally against the filibuster of President Bush’s judicial nominees (they are both Republicans), they did see the value of occasional filibusters, and certainly did not want to damage Senate procedures in order to resolve one problem.
Geoghegan’s real beef is not whether a filibuster is constitutional, but that Geoghegan does not like compromise. Geoghegan shows his hand in the following lines:
So on the health care bill, as on so many other things, we now have to take what a minority of an inherently unrepresentative body will give us. Forty-one senators from our 21 smallest states — just over 10 percent of our population — can block bills dealing not just with health care but with global warming and hazards that threaten the whole planet.
What is wrong with not passing legislation unless a lot of people agree with it? Or with requiring some sort of compromise between opposing views to pass legislation? Surely Geoghegan would agree that that is a policy our Founders would agree with—since they used compromise to write the Constitution itself. Granted, the cloture vote can be annoying when your bill doesn’t get passed (or when the country has a backlog of judicial cases and not enough judges to process them). But is it so terrible to want at least 60 Senators to agree to, for example, a $2.5 trillion health care bill that will put Washington bureaucrats in charge of your health care? I think most people would agree the answer to that question is no.
