Understanding Cloture

[Howard Wasserman]

That sounds absolutely right, as a formal matter. But note that there never really is a filibuster in the sense of continued discussion and debate, because the threat causes the Senate to not bring the issue to the body and to move on to other business. Filibusters no longer are the Jimmy Stewart/Strom Thurmond talkathons. So I would say that under current practice the cloture motion seeks to bring the matter to "consideration" or "to a vote" (rather than an end to debate, because there is no ongoing debate) on its merits. And, as you say, the merits requires 51 Senators to pass (actually only 50, if the Senate majority and Vice President are from the same party).

The problem with this is that the public generally is unaware of when the procedural issue of the filibuster ends and the merits of the proposed legislation begins. As a result, filibusters are costless, because the minority (or an even smaller subset of the Senate) can prevent legislation from being considered for a vote on its merits without having to make clear they are preventing its consideration (as opposed to simply opposing and voting against legislation). There is no public or political accountability if the obstruction tactics are unpopular (or if the proposed legislation is popular) because the public is unaware of the obstruction; the public simply believes that 60 votes are required in the Senate to enact legislation.

If the Senate must retain an anti-majoritarian check, I would like to see them change the rules to make a filibuster really about unending debate--make them take to the Senate floor and keep talking. If the minority party wants to block any vote on the merits, it should have to make clear to the public that this is what it is doing.



Howard M. Wasserman
Associate Professor of Law
FIU College of Law
University Park, RDB 2065
Miami, Florida  33199
(305) 348-7482
(786) 417-2433
howard.wasserman at fiu.edu
Faculty Page:http://law.fiu.edu/faculty/faculty_wasserman.htm
http://ssrn.com/author_id=283130
________________________________________
From: conlawprof-bounces at lists.ucla.edu [conlawprof-bounces at lists.ucla.edu] On Behalf Of RJLipkin at aol.com [RJLipkin at aol.com]
Sent: Saturday, February 14, 2009 11:37 AM
To: CONLAWPROF at lists.ucla.edu
Subject: Understanding Cloture

        What's wrong with this conception of cloture and senate legislation?  The Senate is "deliberating"over Bill X. A filibuster is threatened or begins.  A cloture motion of 60 Senators ends debate. X then needs 51 Senators to pass.  Thanks.

Bobby

Robert Justin Lipkin
Distinguished Professor of Law
Widener University School of Law
Delaware

Ratio Juris, Contributor:  http://ratiojuris.blogspot.com/
Essentially Contested America, Editor-In-Chief http://www.essentiallycontestedamerica.org/

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