No surprise, given the fact that we now have a President and a Senate majority against whom/which the filibuster ought not to be used, by Drum’s lights. His reasoning behind his argument is as follows:
. . . The fact that certain types of legislation (treaties, constitutional amendments, veto overrides, etc.) specifically require supermajority votes is evidence that the framers assumed that ordinary legislation should be passed by majority vote. Assumed it so strongly, in fact, that they never seriously considered the possibility that they had to spell it out.
There are several things wrong with this rationale:
1. “Ordinary legislation” still needs only to be passed by a majority vote. It takes a supermajority of three-fifths to cut off debate, but it does not take a supermajority for final passage. In other words, three-fifths may invoke cloture on a particular piece of legislation, but only a simple majority may vote for that legislation on final passage. Drum confuses the invocation of cloture with final passage, which is clumsy of him.
2. Drum’s argument concerning the intent of the Framers (how charming that all of the sudden, the intent of the Framers has become important; if only we can get Drum and others on the port side to admit that the original public meaning of the Constitution counts when considering the Constitution’s stance on an issue, we will really be cooking with gas. But at least, considering the intent of the Framers is progress!) appears to have been taken from Douglas Kmiec. However, even Kmiec admits that “constitutional silence does not preclude alternative voting rules, as those who supported adding a legislative supermajority for tax increases proposed some years back.” (Kmiec’s concerns regarding Senate Rule V are no longer an issue because Senate Rule V no longer has a two-thirds requirement.)
3. Drum tries to reject the supposition that the Supreme Court would turn back a challenge against the constitutionality of the filibuster on Art. II grounds. However, his stance fails. Consider Art. II, Sec. 5, in pertinent part:
Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member.
(Emphasis mine.) This passage alone makes it plainly Constitutional for the Senate to contemplate and use the filibuster. Indeed, it makes clear that the constitutionality of the filibuster is a closed question.
Nice try, Kevin.