This perversity is compounded by the filibuster rule in Congress whereby a minority of small-state legislators representing 11 percent of the American population can control the laws governing the other 89 percent. Law Professors Sanford Levinson from the University of Texas and Larry Sabato of the University of Virginia have made this case in recent scholarly books on the Constitution.
Mr. Geoghegan’s persuasive essay points out why such a phenomenon is unconstitutional. He describes how the 1975 Senate Rule 22 limiting debate was intended to reform one historic glitch in Senate debate procedures, and itself became a misused procedure. A cure to one problem created a larger problem — one we’ve seen used by the Republican minority to frustrate judicial appointments and healthcare reform recently. Mr. Geoghegan’s potent argument: “the supermajority vote no longer deserves any protection under Article I, Section 5 of the Constitution (giving Congress the right to set its own rules) if it ever did at all.” It exceeds the Constitution’s provisions requiring supermajority votes in specific cases (ratifying treaties, constitutional amendments, a few limited others). It disenfranchises the vice president’s power to tip tie votes in the Senate. And it alters the Constitution’s rule stating that a majority vote constitutes a quorum. Mr. Geoghegan bolsters his case by historical references to the original intent of the Founding Fathers.
If Congress fails to clean up its act in this regard, the courts ought to do it in an appropriate public challenge to Senate Rule 22. The public should press for this change, or it won’t happen.