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Thursday, December 27, 2012

The Majoritarian Senate

Many thanks to Dan Markel for allowing me to make a one-time appearance on this blog.  Recently my co-author, Gregory Koger, and I completed a draft of a paper on the filibuster entitled "The Majoritarian Senate," which is now up on SSRN.  

In the paper we demostrate that the a majority of senators can reform the filibuster at any time using ordinary Senate procedures.  We show that reforming the filibuster does not require a supermajority of senators, the beginning of a new Congress, or any appeals to the Constitution (let alone judicial review).  The argument is simple, and one that a lawyer would certainly appreciate.  Just as one can change the meaning of the Constitution through interpretation, a majority of senators can change the rules that constitute the modern Senate filibuster by reinterpreting them.  

Oddly enough, and this came as a surprise to me, the procedures for Senate rule interpretation cannot be filibustered, can be used at any time, and historically have been used by both the House of Representatives and the Senate to limit filibustering.  In fact, the paper shows that the House abolished the filibuster by essentially using the same procedures for rule interpretation as the ones we describe in the paper.

The paper is still a draft, so I would welcome any comments you may have.  Part of why we posted the draft now is hopefully to reach policymakers as they negotiate possible filibuster reform proposals.  Even if filibuster does not happen in January, we hope that supporters of reform will recognize that they do not have to wait for a new Congress to try again.  More broadly, the goal of the paper is to show that Senate rules and procedures are no obstacle to reform. All that is needed is the will of a determined majority of senators.  In other words, when it comes to filibuster reform, don't hate the game, hate the players. 

Posted by Sergio Campos on December 27, 2012 at 06:14 AM in Article Spotlight, Current Affairs, Law and Politics | Permalink

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In the course of writing on this subject, I have posted some comments on your article. http://www.pointoforder.com/2013/01/02/senate-rules-from-the-internal-point-of-view/

Posted by: mls | Jan 2, 2013 1:29:25 PM

thanks! greatly appreciated!

Posted by: Sergio Campos | Jan 2, 2013 2:16:58 PM

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