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Cloture Reform

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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5 Responses

  1. robert buck says:

    No offensa but, what we need is less lawyers in congress.

  2. Err, because the folks who bring filibusters invariably hold law degrees?

  3. Ken says:

    No, not because it’s the lawyers who “bring filibusters.” Rather, because it’s the lawyers who came up with this crazy “two-track” legislative system that allows someone to say “I hereby filibuster” and thus divert the subject legislation to the side track, where it sits indefinitely, while the main track moves on with other legislation.

    When Senator Morse wanted to filibuster, by God he had to get up and talk … and keep talking. And until he relinquished the floor, no other Senators got to do anything but listen. None of this namby-pamby pseudo-filibuster they can get away with now. Make ‘em really filibuster, I say. Make ‘em stand up there so all America can see who’s brought the legislative process grinding to a full stop.

    Then maybe we can reserve filibusters for the real issues, instead of having them invoked to block mid-level executive appointments and extensions of unemployment benefits.

  4. “Rather, because it’s the lawyers who came up with this crazy “two-track” legislative system that allows someone to say “I hereby filibuster” and thus divert the subject legislation to the side track, where it sits indefinitely, while the main track moves on with other legislation.”

    I’m not an expert on filibuster history, and I don’t know to what extent lawyers were responsible for current Senate Rule 22. Perhaps Gerard can help there.

    I have no objection myself to doing away with psuedo-filibusters and making folks really put on the Mr. Smith Goes to Washington routine. (See also this recent op-ed on the same point: http://www.nytimes.com/2010/01/11/opinion/11geoghegan.html )

  5. Ken says:

    The problem seems to me to be, not in Rule 22, but rather in the failure to adhere to the words of Rule 19 as to what constitutes a filibuster. Here is the key clause in Rule 19:
    Rules of the Senate
    XIX. DEBATE
    1. (a) When a Senator desires to speak, he shall rise and address the Presiding Officer, and shall not proceed until he is recognized, and the Presiding Officer shall recognize the Senator who shall first address him. No Senator shall interrupt another Senator in debate without his consent, …etc.

    “No Senator shall interrupt …” I haven’t found the wording in the Rules of the Senate that creates the pseudo-filibuster. Here’s what Jack Kemp wrote about that six years ago, when he found Democrats using it to stymie Republican agenda items:

    Force a real filibuster, if necessary
    by Jack Kemp
    TownHall.com Monday, November 15, 2004

    …The filibuster rules of the Senate do not need to be changed, they simply need to be honored in practice rather than merely in the abstract….
    …As Sen. Robert Byrd, D-W.Va., acknowledges, today it’s the threat of a filibuster that matters. Mr. Byrd calls it a “casual, gentlemanly, good-guy filibuster. … Everybody goes home and gets a good night’s sleep, and everybody protects everybody else.” Mr. Byrd may have more accurately portrayed this pseudo-filibuster as obstructionism on the cheap….

    Here is the link to Jack Kemp’s article, which makes good sense to me for BOTH parties:
    http://townhall.com/columnists/JackKemp/2004/11/15/force_a_real_filibuster,_if_necessary

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