Jeff.Renz at mso.umt.edu
Mon Sep 27 12:32:49 PDT 2010
I don't consider a super-majority requirement to end debate to be
unconstitutional. That rule of procedure has been around for a long
time and governs the parliamentary practices of everything from clubs to
In the Senate's case, however, the 1975 changes no longer require
debate. The opponents of a bill need only demonstrate that 41 Senators
(the cloture vote now requires 60), would filibuster. That, of course,
is not debate, but has become a rule of the Senate that requires a
super-majority of the Senate to enact legislation. For this reason I
agree with Josh that the 1975 rule is unconstitutional. The real
question becomes, what can be done? Not only is it likely to be deemed
a political question not subject to review but it would be difficult to
find someone with standing to bring the case.
The same is true with "secret" holds. A secret hold on a nomination
results in super-super majority requirement for nominees, without
In last month's New Yorker, George Packer notes that hundreds of bills
passed by the House have been prevented from coming to the floor.
I wonder if the Court could not develop a "manifestly unconstitutional"
approach to the political question. Of course, "manifestly
unconstitutional" can become a soft standard. That still does not
resolve the standing issue.
Prof. Jeffrey T. Renz
School of Law
The University of Montana
32 Campus Drive
Missoula, Montana 59812
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