Time To Eliminate The Filibuster. Is It Even Constitutional?

Attorney Thomas Geoghegan, writing in the New York Times earlier in the month, questioned whether the filibuster is constitutional.

Here’s why. 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.

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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.

And, Article I of the Constitution mandates that a majority of legislators will constitute a quorum. Article I, Section 5 states in part that “a majority of each shall constitute a majority to do business.” So, a majority of each party is necessary to vote, but a a supermajority is needed to stop the minority from blocking a vote. Alexander Hamilton spoke out against supermajority rule in Federalist No. 75.  And the filibuster doesn’t promote representative government.

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. Individual senators now use the filibuster, or the threat of it, as a kind of personal veto, and that power seems to have warped their behavior, encouraging grandstanding and worse.

Prior to 1975, you needed 2/3 of the Senate to stop a filibuster, but senators had to actually filibuster, meaning they had to command the floor until they’d drop, holding forth, Jimmy Stewart-style, as long as they could hold out. With rule changes, the “Mr. Smith Goes to Washington” model is no longer the case, and it’s the threat of a filibuster, actually a ghost, acting on behalf the minority, dictating what the majority can or can’t do.

By: Alan

Alan Colmes is the publisher of Liberaland.