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  • Filibusters and Our Founders

    Yesterday Thomas Geoghegan argued in The New York Times that the Senate filibuster is “at worst, unconstitutional and, at best, at odds with the founders’ intent.” However, the most rudimentary reading of the Constitution suggests that the Founders wanted the passage of legislation to be exceedingly difficult in order to prevent a slim majority from ruling the country with impunity.

    If the Founders were so against supermajorities (as the author suggests), then why is a “two thirds” vote in Congress required no less than 5 times in Article I of the Constitution (including the override of a veto)? In fact, every specification in the Constitution that deals with real action like impeachment, determining House and Senate rules, or overriding a veto requires a supermajority. Only merely conducting business requires a simple majority. The Founders wanted and required a supermajority on matters of import to restrain the federal government from usurping the freedom and liberty of the United States and its citizens.

    Geoghegan further naively claims that the 60 vote cloture requirement undercuts the Vice President’s ability to be a tie-breaker. Yet, according to the Senate’s own out-of-date webpage on the subject (it still lists Cheney as Vice President), since 1789, the Vice President has cast 242 deciding votes—a significant number considering the rarity of the situation.

    Even Senators in the majority party have spoken out on the importance of current Senate rules and procedure. In 2005 when Senate Majority Leader Frist was contemplating the “nuclear” option, former Senators Malcolm Wallop and Jim McClure wrote in the Wall Street Journal that while they were personally against the filibuster of President Bush’s judicial nominees (they are both Republicans), they did see the value of occasional filibusters, and certainly did not want to damage Senate procedures in order to resolve one problem.

    Geoghegan’s real beef is not whether a filibuster is constitutional, but that Geoghegan does not like compromise. Geoghegan shows his hand in the following lines:

    So on the health care bill, as on so many other things, we now have to take what a minority of an inherently unrepresentative body will give us. 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.

    What is wrong with not passing legislation unless a lot of people agree with it? Or with requiring some sort of compromise between opposing views to pass legislation? Surely Geoghegan would agree that that is a policy our Founders would agree with—since they used compromise to write the Constitution itself. Granted, the cloture vote can be annoying when your bill doesn’t get passed (or when the country has a backlog of judicial cases and not enough judges to process them). But is it so terrible to want at least 60 Senators to agree to, for example, a $2.5 trillion health care bill that will put Washington bureaucrats in charge of your health care? I think most people would agree the answer to that question is no.

    Posted in First Principles, Ongoing Priorities [slideshow_deploy]

    22 Responses to Filibusters and Our Founders

    1. Trey, Texas says:

      The only problem is that they don't filibuster! At least not the way the Founders intended it, and the way Mr. Smith in "Mr. Smith Goes to Washington" filibustered!

    2. Liz, Illinois says:

      Jonathon Alter had a piece in Newsweek that peripherally is about filibusters as well, bemoaning the decrease in civility in the Senate, lack of reaching across the aisle, etc. He mentions specifically holding up legislation (GOP'ers at "fault," naturally!) that later passed by huge majorities. The objective, according to alter: to make Obama fail. Not a lot of fact backing that up, mind you.

      He does take Democrats to task, too, though! But all in all, since he says Coburn called for Byrd to die before casting his health care vote, I don't put a lot of faith in this piece.

    3. Jim, Texas says:

      I agree, I like the point made about how often the VP has cast the deciding vote, despite the Dems statement that it was rare!

    4. J.C. Hughes, Texas says:

      The filibuster provides a needed handicap when you're the underdog attempting to counter mob rule. Sort of like fending off blood thirsty vigilantes who don't waste time with facts or details. Such scenario is being played out by today's congressional majorities with their misguided, subversive and unconstitutional healthcare bills. A final version of which Obama's far leftist hand will surely sign into law, right or wrong. And these elected elitists swore and oath to uphold the constitution's recognition of self-determination by states and individuals??? Forget the filibuster. It's time for states to consider if the union has gone too far with an overreaching politicized federal bureaucracy.

    5. Glenda J. Montiel says:

      It is refreshing and encouraging that The Heritage Foundation is looking out for our constitution. I just hope this message gets out so that such ignorant opinions are not perceived as truth. Thank you for enlightening us…..and keep it up!

    6. MarkV says:

      The article that Ms. Davis sites is an excellent example of the difference between the parties. I have not been a fan of Republicans as of late, but one thing that they have historically done is play by the rules. And when their are complaints, it is about the 'changing' of those rules, not the rules themselves.

      Ms. Davis rightly notes that Geoghegan "shows his hand" in the quote provided. But it is also worth noting that such Constitutional rules have been a consistent complaint of Democrats for 30 years now. The difference now is that they are the Majority!! And this is the nonsense of it! This is like the playground bully complaining about the teacher preventing him from pummeling fellow students for lunch money. The debate over the creation of the Senate is well documented by our founders specifically so that smaller states would not be bullied.

      Whatever their current bias, the Senate and its rules are not a 'problem.' These rules are in place for both parties, not just the majority. There is no clearer example of out-right tyranny than the ruling or majority party complaining about the constraints of those rules!

      Good article!

    7. Yazi says:

      Your examples from the Constitution make exactly the opposite point you think they do. Clearly, there was an assumption that a plain majority was the ordinary way to conduct business in a deliberative body, WHICH IS WHY they felt the need to enumerate certain special circumstances that deviate from that norm. Most illustrative is the veto override: Clearly, if the founders wanted to specify something more than a plain majority for an OVERRIDE, they must have assumed that the original pre-veto vote must have been by a plain majority. Also, there's no mention of any kind of arbitrary 60% majority, how do you explain that?

      You say: "… the most rudimentary reading of the Constitution." Rudimentary, indeed.

    8. Pingback: » The Filibuster Is Constitutional and Essential for Freedom - Big Government

    9. Yazi says:


      You say: "What is wrong with not passing legislation unless a lot of people agree with it?"

      Really? In the hypothetical he presents, representatives of 90% of the population want to pass a bill and all you can say is, "what is wrong . . . unless a LOT of people agree?" It's an extreme hypothetical, but you don't even take issue with it, you seem to think that even on that those grounds, a hypermajority requirement is OK. i'm guessing you wouldn't feel the same way if the shoe were on the other foot.

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    18. Ra Vokes, PA says:

      You say: "Really? In the hypothetical he presents, representatives of 90% of the population want to pass a bill and all you can say is, “what is wrong . . . unless a LOT of people agree?”

      The tyranny of the majority must be guarded against…

      James Madison wrote in Federalist Paper 51: "It is of great importance in a republic not only to guard the society against the oppression of its rulers but to guard one part of the society against the injustice of the other part. If a majority be united by a common interest, the rights of the minority will be insecure."

      This is why Democracy=Majority Rules=TYRANNY!!

      Thanks for your time.

    19. Timothy Gonsalves says:

      We have to thank the founding fathers for having saved us from destruction due to the inclusion of this manoeuvre

    20. Timothy Gonsalves, C says:

      I for one thank the founding fathers from including this manoeuvre into the system as it has undoubtedly saved the nation from destruction on many occasions.

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