Reforming the Filibuster

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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3 Responses

  1. Steve Zorn says:

    Interesting idea, but wouldn’t the practical effect of a one-year suspension be just about the same as an absolute veto? In the UK, Parliaments last for up to five years, so a one-year hold still leaves considerable time for legislative action. In the US, with a new Congress every two years, serious legislation often doesn’t reach the floor until the second half of the opening year of the Congress. A one-year hold would put the bill over until after the summer break in the second year, a period when most members are far more focussed on reelection than on legislating. I would think a four-to-six month period, which would be proportional to the difference in time frames for the UK and US legislatures, would make more sense.

  2. Gerard Magliocca says:

    Steve,

    It’s a fair point. One alternative would be to have a graduated reduction in the cloture requirement that would reach a majority after one year. So maybe in 4-6 months the threshold should be 55. There is an argument for letting a minority block a bill that reaches the floor at the end of a Congress, so it depends how you want to define “The End.” In the Parliament Act of 1911, the Lords were able to block legislation for two years, which is roughly 1/2 of a Parliament given that it took time to pass the bill in the first place. So this proposal would be similar to that, even though now the Lords can only stop a bill for one year. I would suspect that if a filibustering minority could only delay bills for one year, though, that power would be used far less often.

  3. Ken says:

    I am dismayed by the abuse of the word “filibuster.”

    In my youth, if Senator Morse wanted to filibuster he had to get up and speak. And keep speaking. On and on. And perhaps recruit a fellow objector to yield to, while he went to the potty.

    Forget all this b.s. about pseudo filibusters (see notes 10 thru 13). Nowadays there is no cost–personal or political–to saying “I’m filibustering; table that legislation indefinitely.” Simply make them go back to *real* filibusters to block the legislative process.

    “Two tracks?” B.S. Make some senator, or group of senators, stand at the podium and bring Congress to a screeching halt, stopping the *entire* legislative process, not just shuffling the bill they don’t like off to the “idle track.” Then we will see who has the heart, the cojones, and the political will to become known as the one(s) who brought the whole country to a standstill to get their way.