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January 13, 2010

The New York Times has an Op-Ed by Thomas Geoghegan with an informative history of the filibuster in the U.S. Senate. Most people are unaware of the fact that the filibuster is not in the constitution; rather, it is a rule of the Senate, which can be modified pursuant to Article I, Section 5, which allows the houses of Congress to set their own rules. The current version of the filibuster, under which 60 Senators must agree to bring an issue to a vote, is a mere parliamentary rule and not mandated by the constitution, let alone constitutionally protected. The more “classical,” Jimmy Stewart in Mr. Smith Goes to Washington, talk till you drop version of the filibuster was replaced in 1975 by the current version, ostensibly for the sake of better “legislative scheduling,” but this has promoted the overuse of the filibuster since it lacks real, practical costs to those invoking it.

As a result, the supermajority vote no longer deserves any protection under Article I, Section 5 — if it ever did at all. It is instead a revision of Article I itself: not used to cut off debate, but to decide in effect whether to enact a law. The filibuster votes, which once occurred perhaps seven or eight times a whole Congressional session, now happen more than 100 times a term.

Indeed, I agree with Geoghegan insofar as he notes that the filibuster has been used to subvert the legislative process contemplated by the framers. However, when the Op-Ed strays from history and veers into populist saber-rattling, one gets the impression that the New York Times certainly wouldn’t have printed this Op-Ed when the Republicans were in the majority of the Senate, and considering whether or not to use the “nuclear option.” Geoghegan quotes Alexander Hamilton’s Federalist 75: “All provisions which require more than a majority of any body to its resolutions have a direct tendency to embarrass the operations of the government and an indirect one to subject the sense of the majority to that of the minority.”

Reading the Op-Ed, anyone familiar with the American founding observes that Geoghegan overlooks Hamilton’s noted federalist tendencies and preference for bare majority-rule in order to allow America as much power as possible in the central government to become an empire. This, of course, is why the other framers were afraid of Hamilton rising to power and ensured that only natural-born citizens could become president. The point of the constitutional republic the framers were building was to ensure that neither the majority nor the minority could rule over one another, and that the preference should be for an absence of overreaching action instead of an acquiescence in whatever the majority preferred. Indeed, in the far more relevant and iconic Federalist 10, Madison observed “our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.” A little inefficiency may not always be a bad thing when it comes to trampling on the rights of the minority.

Let’s not forget that the Senate was also meant to be the most deliberative legislative body in the world. The problem seems to be that a 60-40 vote rule tends to promote stand-offs and gamesmanship instead of deliberation and compromise. Perhaps amending the filibuster rules to require a minimum of some substantive form of debate to continue while a filibuster was in effect (as potentially measured by an on the record vote/poll on a simple, direct question measuring the Senator’s stance on whether any genuine issues of fact remained unresolved) would promote both the goals of deliberation as well as protection of the minority. Unlimited filibuster-like delay could still be imposed, but only where an actual matter of policy or fact was in dispute, thus dispensing purely partisan or political obstructionism. Plus, it would make for much better TV. Now that’s someone even a Senator can agree to.

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