The Lincoln Plawg - the blog with footnotes

Politics and law from a British perspective (hence Politics LAW BloG): ''People who like this sort of thing...'' as the Great Man said

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Thursday, December 09, 2004
 

Filibuster rule: the way for change looks clear


The old saying was that anyone who said he knew the answer to the Irish Question clearly hadn't understood the question.

However, having skimmed the Fisk and Chemerinsky article (December 6) it seems to me that the balance of advantage lies in a change in the Senate Rules, rather than a challenge in the courts.

The lie of the land is a precipitous slope faced by anyone fighting in the courts a decision made by a house of Congress in relation to its own internal affairs. The slope may in some cases be gentler where the litigant is a member of the house in question; but even so, the barbed wire entanglements are Somme-style: standing, political question and other preliminaries must be negotiated.

But, even where he wins through to argue the case on the merits, the success rate is dauntingly low: only Adam Clayton Powell [1] seems to have gone the whole way.

One of the pieces (PDF) I noted on December 6 outlines a couple of sequences whereby the rules could be changed on a simple majority vote (or rather, a series of such votes). Some GOP senators - McCain, for instance - are mumbling if not actual dissent, then a lack of conviction.

(So far as I can see, there has been no ruling on whether the President - currently, Dick Cheney - can break any tie arising a vote appealing a ruling of the chair [2].)

Failing a solution within the Senate, Fisk and Chemerinsky (p67ff) rate the best chance going the litigation route would be a claim that the entrenchment of Rule XXII (by requiring a two-thirds majority for any change) breaches the constitutional principle that one legislature cannot bind subsequent legislatures [3].

Very much a pis aller, though. (Except for the lawyers, of course, who would no doubt make a mint!)

  1. A sort of high yaller Jack Johnson at the end of his career, living the good life and flipping off The Man. Interesting for, amongst other things, supporting Eisenhower for reelection in 1956: when the real DEWDROP was in charge the Senate...

  2. Riddick's chapter (PDF) on the Vice President.

  3. Amongst the Supreme Court case-law cited for this proposition is - by pure coincidence - Ohio Life Insurance v Debolt...

MORE

The author of the tome on Senate procedures, Floyd Riddick, is one of a number of oral history subjects on the Senate site.


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