Friday, December 03, 2010


Gerard N. Magliocca

I wanted to add an observation to Jack's post from the other day about the need for Senate reform and the evolution of parliamentary parties in a presidential system.

My proposal, which is in this forthcoming Essay, is that the filibuster should be reduced from an absolute to a suspensive veto. In other words, forty-one Senators should have the power only to delay legislation or nominations for up to one year within a Congress. When I present this idea, the most common response I get is that the current system is worth retaining because it forces both parties to work together. Of course, forcing the parties to work together often means that nothing gets done, especially when they are so polarized. Proponents of current Senate practice, though, would generally prefer nothing over something bad supported by a slim majority.

I think the elevation of bipartisanship into a small c constitutional principle is wrong. There is no Bipartisanship Clause in the Constitution. Nor is it true that bipartisan initiatives are better as an empirical matter than ones passed on a party-line vote. (Or, at least, I am not aware of any support for that proposition.) Most important, professional politicians are bipartisan only when it is in their partisan interest. That may be because the measure under consideration is popular. It may be because they want political cover for something controversial. These are extraordinary circumstances. Turning that into standard operating procedure, as the modern interpretation of the Senate rules does, is simply unsustainable.

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