

Between 1840 and 1900, there were 16 filibusters. Between 2009 and 2010, there were more than 130. But that's changed. Today, Majority Leader Harry Reid says that “60 votes are required for just about everything.”

At the core of Bondurant's argument is a very simple claim: This isn't what the Founders intended. The historical record is clear on that fact. The framers debated requiring a supermajority in Congress to pass anything. But they rejected that idea.


Mr Klein thinks Mr Bondurant "makes a strong case". Gregory Koger, a political scientist at the University of Miami seems not to agree. "I am very excited that Common Cause has filed a lawsuit against the Senate filibuster", Mr Koger confesses at the Monkey Cage blog. "Excited in a John Stuart Mill, isn't-it-great-when-bad-arguments-get-aired-and-demolished kind of way." In a 2009 post, Mr Koger systematically reviewed the arguments against the proposition that the filibuster is unconstitutional. In his more recent post he responds specifically to the Common Cause/Bondurant brief:


Mr Koger goes on to observe that the principle that "every supermajority procedure used by Congress is prohibited" if not explicitly required would take down a number of longstanding and uncontested practices in both houses.

Constitutional questions aside, Mr Koger is sceptical that ditching the filibuster would make the Senate significantly more functional. Here's the real problem, as he sees it:

The Republicans generally don't want anything to pass, and when legislation does come to the floor the Republican often demands roll call votes on “message” amendments that provide fodder for the current news cycle and the next campaign. The Democrats, whose majority is based on winning seats in red states, don't want to vote on these amendments. And so there is a stalemate in which must-pass legislation is put off until the final moment while they wait for each other to blink and nothing else gets done. ...


The fundamental problem is partisan polarisation. If you believe, as I do, that polarisation is due mainly to increasingly efficient sorting of American voters into parties according to personality type, then procedural tweaks will look unlikely to make a meaningful difference. But this is not to say that a major procedural overhaul wouldn't help. I suspect the discontents of polarisation would be greatly alleviated by replacing America's creaking legislative system with a proportional-representation parliamentary system. There aren't just two kinds of personalities, liberal and conservative. Moral/ideological temperament is complex. Multiplying parties would offer voters the chance to sort themselves into finer-grained partisan identities while adding flexibility to the politics of coalition-building and law-making. If abolishing the filibuster would require a constitutional amendment, as Mr Koger leads me to suspect, then those of us frustrated by congressional dysfunction might be better served by abandoning the pursuit of such niggling quarry and hunt instead for bigger game.