British abuses inspired both the American Revolution and establishment in 1777 of a legal framework called the Articles of Confederation for the new nation. The Continental Congress convened under the Articles soon floundered, however, unable to agree on important issues like taxation. This first attempt at American self-governance was chronically hobbled because Congress chose to operate under supermajority-rules – laws required approval by at least 9 of 13 states. Institutions vital to survival of the new nation favored by a majority of leaders such as an American Army and Navy, a President or a court systems were rejected year after year.

By 1787, this dysfunction had so alarmed George Washington, Alexander Hamilton, James Madison and other founding fathers that they abandoned the flawed Articles of Confederation. It led Alexander Hamilton (Federalist 22) to declare that supermajority-rule “contradicts the fundamental maxim of republican government, which requires that the sense of the majority should prevail…. a poison…a weakness.”

Instead, the Founding Fathers convened a Constitutional Convention in Philadelphia to craft a replacement, the Constitution we have today. And they applied the sobering lesson of the Articles of Confederation: a central element of their new governmental structure was insistence that Congress ban supermajority-rule, and instead operate under majority-rule. In fact, their insistence on majority rule was so profound that they explicitly wrote into the Constitution those few exceptions (to remove members or impeachment officials) when supermajority voting was even permitted in Congress.

The Founding Fathers’ demand for majority-rule prevailed for all voting by both the House of Representatives and Senate for 60 years. Supermajority rule was accidentally resurrected — in just the Senate — only in 1837 when it was discovered that a rule-drafting mistake back in 1805 inadvertently permitted unlimited debate. The filibuster as a tactic to derail majority-rule was slowly resurrected thereafter, eventually becoming a key tool thwarting equality in civil and voting rights during Jim Crow and well into the twentieth century.

The Founding Fathers required majority-rule in both the House and Senate. Its use today in the Senate in defiance of the wishes of the Founding Fathers — and in contrast to the House – is an accident of history.

The Slapdash Filibuster

The filibuster is a slapdash practice unevenly applied by the Senate.

Unsurprisingly, the increasing frequency of filibusters in the Senate over the last half-century or so has resurrected the same supermajority-rule dysfunction responsible for the demise of the Continental Congress.

To moderate this dysfunction, Senators over the years have chosen time and again to corral the filibuster by creating at least 161 exceptions to supermajority-voting. The filibuster is now banned on votes addressing important governmental functions including federal spending, Presidential cabinet confirmations, tax law changes and judicial appointments. And filibusters are also banned on less consequential matters such as Senate votes on international trade agreements and international arms sales.

For example, the right of American farmers to sell frozen turkeys, peanuts, whey or chicken leg quarters to Panama duty free, negotiated by the US Trade Representative, is protected under Senate rules from the filibuster. Sugar-state Senators opposed to that trade agreement because it also (say) reciprocally expands Panamanian sugar sales to the US must marshal 51 votes rather than 41 votes to derail the trade agreement. The right of US arms dealers like Raytheon to sell weapons abroad — or Wall Street banks to market their financial wizardry in spots like Oman — are similarly protected from the filibuster.

Voting Rights

Advocates of voting rights like Congressman James Clyburn and Senators Amy Klobuchar and Tammy Baldwin urge that ballot access be equally available to citizens everywhere rather than limited whimsically by partisan state legislatures. The Constitution grants Congress the power to do just that — to overrule parochial partisanship by establishing nationwide eligibility criteria affording each voter the same ballot access regardless of location.

Yet, Senators have decided that the right of each American to equal voting access is less consequential than the rights of turkey farmers and arms dealers to market their products in Oman or Panama. They believe that voters in Arizona, Georgia and Texas are not entitled to the same ballot access as those in Colorado, Minnesota or Utah – while simultaneously banning filibusters on behalf of peanut farmers and Wall Street Banks.

Just what are they thinking?