Reforming the Filibuster

My Essay in Northwestern University Law Review is now available here.

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3 Responses

  1. Ken Rhodes says:

    “…it is impractical to end the two-track system because of senators’ aversion to the unpleasant schedule that is created by round-the-clock speeches,…”

    Prior to Mike Mansfield’s two-track system, the senators’ aversion to the unpleasantness of round-the-clock speeches was the reason the filibuster used to be a weapon fired only for first-magnitude issues. The two-track system has proved to be the death of serious debate in the Senate, and I suspect it could be killed by bipartisan agreement.

    There is something I don’t understand, though, about the politics of “caving in to the threat of filibuster.” My theory for revoking the two-track system is that if the minority had to actually get up and speak ad infinitum to block a relatively trivial piece of legislation, thereby gridlocking the legislative process, they would be reluctant to do so because it would expose them as arrogant obstructionists.

    If that’s true, however, then the Majority Leader has it in his power to expose them as such, simply by not “two-tracking” any other pending legislation. Why don’t Majority Leaders do that?

  2. Gerard Magliocca says:

    I assume that Majority Leaders are just responding to the wishes of their caucus (of both parties at different times), who prefer the two-track system.

  3. Joe says:

    Reading history over these years, allusions to assumed “better days” repeatedly is taken by me with a grain of salt.

    The “death of serious debate in the Senate” was present before the “two track system,” at least as far as the fact that various subjects were basically off the table.

    There is so much to do these days, actually spending even a week of legislative business to force a “real filibuster,” would be risky, putting aside that various members of the majority party ALSO like the power the filibuster brings them. So, “minority” doesn’t mean “minority party.”

    But, the minority party ALREADY gridlock the process for relatively trivial reasons (if for a bigger end as a whole, such as making the courts more conservative over the long term) now in various ways. Where’s the big exposure that is hurting them?