In a 2011 article in the Harvard Law School’s Journal on Legislation, Bondurant laid out his case for why the filibuster crosses constitutional red lines. But to understand the argument, you have to understand the history: The filibuster was a mistake.
In 1806, the Senate, on the advice of Aaron Burr, tried to clean up its rule book, which was thought to be needlessly complicated and redundant. One change it made was to delete something called “the previous question” motion. That was the motion senators used to end debate on whatever they were talking about and move to the next topic. Burr recommended axing it because it was hardly ever used. Senators were gentlemen. They knew when to stop talking.
That was the moment the Senate created the filibuster. But nobody knew it at the time. It would be three more decades before the first filibuster was mounted — which meant it was five decades after the ratification of the Constitution. “Far from being a matter of high principle, the filibuster appears to be nothing more than an unforeseen and unintended consequence of the elimination of the previous question motion from the rules of the Senate,” Bondurant writes.
And even then, filibusters were a rare annoyance. 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.
Read the entire article here...