Mr. Smith Rewrites the Constitution

by Thomas Geoghegan

About the Senate, a college professor of mine used to say, "One day, the Supreme Court will declare it unconstitutional." He was joking, I think.

But the 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.

This change to the Constitution was not the result of, say, a formal amendment, but a procedural rule adopted in 1975: a revision of Senate Rule 22, which was the old cloture rule. Before 1975, it took two-thirds of the Senate to end a filibuster, but it was the "Mr. Smith Goes to Washington" filibuster: if senators wanted to stop a vote, they had to bring in the cots and the coffee and read from Grandma's recipe for chicken soup until, unshaven, they keeled over from their own rhetorical exhaust.