It should have been surprising when Senate Minority Leader Mitch McConnell announced that he would require 60 votes for his house of Congress to approve immigration reform. After all, the Constitution requires only a majority of votes in each chamber of Congress to pass legislation.
That it wasn’t surprising opens a window on how far Congress has strayed from the form of government laid out in the nation’s primary governing document.
The filibuster, which requires 60 votes to shut off, allows the Senate’s minority party to block approval of a bill even if it musters the constitutionally required simple majority for passage, 51 votes in the 100-seat Senate. That rule appears nowhere in the Constitution. It is a confection, invented by the Senate and written into its rules of procedure. More than that, it is confection that has been abused so often in recent years that it has outlived its usefulness.
The theory behind the filibuster is that it empowers a passionate minority, preventing its interests from being steamrolled by a cavalier majority. In that, it contains more than a germ of legitimacy. Our whole form of government is designed to temper passions, slow the process and protect minority interests. If it is not exactly constitutional, it has been, in some regards, useful to both parties.
But since the 2008 election of President Obama, Senate Republicans have used the filibuster the way a 10-year-old uses a Jedi light saber: with abandon. In their fixation on obstructing any legislation backed by President Obama – and, just as important, on currying favor with the radicals who comprise the tea party – Senate Republicans have fetishized the filibuster.
There is simply no reason other than sheer obstinacy to require 60 votes on virtually every piece of legislation that comes before the Senate. That includes immigration reform, which is, to be sure, a sensitive and important public topic.
But Republicans will have many opportunities to shape the legislation, in part by influencing public opinion. And they do have legitimate issues, including improved border security and the conditions surrounding the ability of undocumented residents to become citizens.
In addition, the House is securely in Republican control and whatever bills may come out of each chamber will need to be reconciled before they can go to the president for his signature. There is more than enough opportunity for both parties to influence this legislation without resorting to trickery.
That’s the way our government was designed to work. There was neither a provision for nor expectation of requiring a supermajority to pass standard legislation. But the routine use of the filibuster achieves that extra-constitutional standard, and it is both a symptom and a cause of the dysfunction that grips the federal government.
That is why, when McConnell casually announces that immigration reform will require 60 votes, he inadvertently makes clear that the filibuster has outlived its time. Its purpose now is simply to thwart the will of Americans as expressed in the membership of the Senate. In that, it is a tool meant to undermine the Constitution.
Republicans may not like the idea of losing that crowbar, but its overuse also denies them an argument to put the Senate in their control. If they can block everything anyway, what’s the need to further empower them?
The filibuster retains too little public value to justify its continuation. It’s time for the Senate to end it once and for all. Let them live with the Constitution.