No, I don't mean Robert Byrd, but the filibuster.
Writing in the NY Times, Thomas Geoghegan makes the somewhat outrageous argument that the key feature of Mr. Smith Goes to Washington shouldn't exist - and the founders never intended it to exist in the first place. Before I get too far into this, I will admit that I love the filibuster and would someday like to stage one myself, but that's another story.
Geoghegan puts forth a thoughtful and well-reasoned argument against the use of cloture and the "procedural" filibuster. He focuses - correctly - on the original intent of the framers of the constitution and where and when supermajorities are specifically called for in Congress. He cites the Federalist Papers and his argument is best summed up with Hamilton's warning from Federalist No. 75: “The history of every political establishment in which this principle has prevailed is a history of impotence, perplexity and disorder.”
I think there is some merit to the author's argument, but I have to disagree with him. The filibuster has existed in the Senate for nearly its entire history. To suggest that it is antithetical to the founders' vision is a bit of a stretch considering so many of them were still influencing and shaping policy. I don't doubt that the notion of a de facto supermajority requirement isn't exactly in line with the constitution, but I don't think Senate rule 22 is unconstitutional.
Each chamber is expressly empowered in the constitution with the ability to write it's own rules. I think that the rules in place that bar a filibuster from being used on pure spending bills are appropriate. When it comes to judicial nominees and presidential appointments in general the filibuster is also inappropriate, but when we're talking about major or controversial legislation it makes sense that the filibuster be held as a tool to protect the minority from the tyranny of the majority.
By requiring controversial legislation to muster 60 votes in the Senate is a rather effective bar against the fear of many early American leaders - certainly those of the anti-federalists - that a bare majority in Washington could run roughshod over the rest of the nation. The absurdity of what is happening now in the Capitol is not that 60 votes is required to move forward, but that the leadership in both chambers are willing to buy the votes for passage at any cost.
That's disturbing and antithetical to the founders' vision of democracy.
As for Geoghegan's criticism of the filibusters that never take place, that's a relatively easy fix - require Senators to talk. Most of them love the sound of their own voice and the idea of John McCain, Lindsey Graham or Tom Coburn yielding back and forth to one another seems entertaining. Not to mention the opportunities to quote some of the great lines about liberty and freedom from Mr. Smith Goes to Washington.
Votes on cloture are perhaps overused, or misused. But, if anything, I think the filibuster - in all its rhetorical glory - is underused as a political weapon.