Filibuster

[Renz, Jeff]

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
faculty meetings.

 

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
accountability.

 

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

406-243-5127

 

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