Josh Chafetz josh-chafetz at
Mon Sep 27 12:48:09 PDT 2010

Beyond the justiciability and standing questions, I don't know who you would name as a defendant.  The Speech or Debate Clause means that no Senator can be sued over this issue.  In Powell v. McCormack, the solution is that you can still sue the doorkeeper, sergeant-at-arms, and clerk.  But that solution was dependant on the particular remedy sought there-access to the floor, back pay, and the various services that the clerk performs for members.  I can't see how any non-member officers would be proper defendants here, where the allegation is simply that a Senate rule is unconstitutional.  (And before anyone suggests the parliamentarian as defendant, I would point out that the parliamentarian's role is strictly advisory-he simply advises the presiding officer on procedural matters.  A successful suit against him alone could not force a change in the rulings from the presiding officer, nor could it force the Senate as a body to uphold those rulings.)

But I fail to see why the courts are the right answer, anyway.  Surely, the constitutional arguments here are best addressed to the Senate itself.


Josh Chafetz
Assistant Professor of Law
Cornell Law School
208 Myron Taylor Hall
Ithaca, NY  14853
josh-chafetz at<mailto:josh-chafetz at>

From: conlawprof-bounces at [mailto:conlawprof-bounces at] On Behalf Of Renz, Jeff
Sent: Monday, September 27, 2010 3:33 PM
To: conlawprof at
Subject: Filibuster

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

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