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The Democratic Strategist

Political Strategy for a Permanent Democratic Majority

The Founders and the Filibuster

Current defenders of the de facto 60-vote requirement for enactment of legislation by the United States Senate invariably argue that a non-representative and obstructionist upper legislative chamber was crucial to the Founding Fathers’ system of constitutional checks and balances. Without a cranky and institutionally conservative Senate, you see, popular majorities might run roughshod over minority rights, and/or enshrine highly temporary objects of popular enthusiasm into law.
Attorney/activist Tom Geoghegan blows up this line of reasoning very effectively in a New York Times op-ed piece that appeared yesterday. His main argument is that by requiring Senate supermajorities in very select circumstances, the Founders made it clear they did not contemplate a universal, routine supermajority requirement for every circumstance. This is, in fact, a very recent development, accomplished through the abandonment of actual filibusters for threatened filibusters as an obstructionist tactic, and then the routinization of filibuster threats. What used to be an extreme and controversial measure–an actual filibuster–that was very difficult to deploy has now become the normal order of business in the Senate.
Had the Founders wanted the Senate to require supermajorities for all sorts of legislation, they would have placed it right there in the Constitution. But they did no such thing.
Geoghegan offers several avenues for challenging the Supermajority Senate outrage. But his best contribution is an argument that will leave constitutional “originalists” sputtering in confusion.

3 comments on “The Founders and the Filibuster

  1. CarmanK on

    The “threat” of the filibuster has been abused and made a mockery of the need to have a 60 Senate majority. Even with the supposed majority, the dems have been unable to produce a really progressive bill on health care reform etc..It really does get rediculous that the rhetoric goes on and on. The repugs are out to delay, delay, delay. I think they should have to work the deriers off in order to get their way. The dems look inept and perception is everything. The dems will lose seats in the midterms. Does that mean Obama will accomplish nothing leading up to 2012??

  2. Dermot on

    Are the people threatening a filibuster really ready to start reading out the constitution, the Bible or whatever for days or weeks at a time? When was the last time it was done?


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