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.