Kyle Bell

The New York Times has an op-ed by lawyer Thomas Geoghegan where he argues that the filibuster has become an unconstitutional tool of obstruction. His thesis is that the filibuster was never the intent of the Founding Fathers. By requiring a 60 vote threshold in a 100 body chamber, the Senate’s minority is subverting majority rule on essentially anything that it wants.

“The filibuster votes, which once occurred perhaps seven or eight times a whole Congressional session, now happen more than 100 times a term. But this routine use of supermajority voting is, at worst, unconstitutional and, at best, at odds with the founders’ intent,” he writes. The Republican Party has taken to parliamentary stall tactics and outright stonewalling on virtually every piece of legislation – even blocking President Obama’s pick to head the TSA – in spite of the recent attempt to blow up an airliner in Detroit.

Geoghegan makes a number of compelling arguments for why the filibuster is unconstitutional:

First, the Constitution explicitly requires supermajorities only in a few special cases: ratifying treaties and constitutional amendments, overriding presidential vetoes, expelling members and for impeachments. With so many lawyers among them, the founders knew and operated under the maxim “expressio unius est exclusio alterius” — the express mention of one thing excludes all others. But one need not leave it at a maxim. In the Federalist Papers, every time Alexander Hamilton or John Jay defends a particular supermajority rule, he does so at length and with an obvious sense of guilt over his departure from majority rule.

Second, Article I, Section 3, expressly says that the vice president as the presiding officer of the Senate should cast the deciding vote when senators are “equally divided.” The procedural filibuster does an end run around this constitutional requirement, which presumed that on the truly contested bills there would be ties. With supermajority voting, the Senate is never “equally divided” on the big, contested issues of our day, so that it is a rogue senator, and not the vice president, who casts the deciding vote.

This second argument is particularly interesting to me. He is basically saying that the whole reason why we have a Vice President is to break a tie in the evenly divided Senate. You can not have an evenly divided Senate if there is a super-majority (60 vote) threshold to pass a bill. Unlike the filibuster, which is simply a rule of the Senate, this is written directly in the Constitution. The Vice President only has two Constitutional duties: one is to act as the president of the Senate, casting tie breaking votes when necessary. The other is to take on the role of president in the case that the president dies or is unable to carry out his duties. The filibuster “disenfranchises” the Vice President by eliminating one of his only two Constitutional roles.

His third argument deals with Article I, Section 5:

Third, Article I pointedly mandates at least one rule of proceeding, namely, that a majority of senators (and House members, for that matter) will constitute a quorum. Article I, Section 5 states in part that “a majority of each shall constitute a majority to do business.” Of course, in requiring a simple majority for a quorum, the founders were concerned about no-shows for a host of reasons — not least of all because the first legislators had to travel great distances by stagecoach.

But the bigger reason for the rule was to keep a minority from walking out and thereby blocking a majority vote. In Federalist No. 75, Hamilton dismissed a supermajority rule for a quorum thus: “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.”