In Thomas Geoghegan’s 11 January 2010 op-ed in the NY Times (Mr. Smith Rewrites the Constitution) argues that the Senate’s use of the filibuster subverts the U.S. Constitution and the intent of our Founding Fathers.

[T]he Senate, as it now operates, really has become unconstitutional: as we saw during the recent health care debacle, a 60-vote majority is required to overcome a filibuster and pass any contested bill. The founders, though, were dead set against supermajorities as a general rule, and the ever-present filibuster threat has made the Senate a more extreme check on the popular will than they ever intended.  (…)

[The filibuster is] a revision of Article I itself: not used to cut off debate, but to decide in effect whether to enact a law. 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.

Read Geoghegan’s analysis of Article I and the Federalist Papers. He then continues,

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. 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.

He suggests several approaches to dispensing with the procedural filibuster.

If the House passed a resolution condemning the use of the procedural filibuster, it might begin to strip the supermajority of its spurious legitimacy. It’s the House that has been the great victim of the filibuster, and at least with such a resolution that chamber could express the grievance of the people as a whole against this usurpation by a minority in the Senate.

The president of the Senate, the vice president himself, could issue an opinion from the chair that the filibuster is unconstitutional. Our first vice presidents, John Adams and Thomas Jefferson, felt a serious obligation to resolve the ties and tangles of an evenly divided Senate, and they would not have shrunk from such a challenge.

We citizens could also demand that our parties stop financially supporting senators who are committed to the filibuster, and we ourselves could deprive them of fund-raising dollars.

And we needn’t rule out the possibility of a Supreme Court case. Surely, the court would not allow the Senate to ignore either the obvious intent of the Constitution.

Whether any such approach works, the founders would have expected us to do something about this unconstitutional filibuster. In Federalist No. 75, Hamilton denounced the use of supermajority rule in these prophetic words: “The history of every political establishment in which this principle has prevailed is a history of impotence, perplexity and disorder.” That is a suitable epitaph for what has happened to the Senate.

-RichardH