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Thursday, September 03, 2020

Ornstein on filibuster reform

Norm Ornstein argues in The Atlantic that even in a best-case scenario, Democrats in 2021 would be unable to eliminate the filibuster. And, he suggests, perhaps they should not eliminate it, lest the Senate become a mini House in which the majority always gets its way and the minority lacks formal power. Ornstein's solution is to flip the default on continuing debate:

Instead of 60 votes required to end debate, the procedure should require 40 votes to continue it. If at any time the minority cannot muster 40 votes, debate ends, cloture is invoked, and the bill can be passed by the votes of a simple majority.

The committed minority would have to be at the Senate around the clock, ready to hit the floor for a vote to continue debate. It would impose a physical and political cost on the minority prolonging debate rather than on the majority seeking to end it and get to a simple-majority vote. He hopes that would limits its use to the extraordinary case.

This also offers a nice example of how default rules operate and how altering a default alters conduct and procedure.

Posted by Howard Wasserman on September 3, 2020 at 11:25 AM in Howard Wasserman, Law and Politics | Permalink


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