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August 20, 2009


At the risk of sounding a Gary Farber-ish note (no offense meant to Gary at all!):

In comments on your previous post, I actually pointed out both the things that Kleiman points out:

1) Under Senate rules, it takes a 2/3 majority to amend the rules.

2) Constitutionally speaking, a simple majority should actually be able to adopt an entirely new set of rules. I even provided a link to a paper about this latter contention.

Sorry Ben - I should have updated it. I have about one million things going on at work right now, and am trying to finish a paper in the next couple of weeks.

No excuse, but that's just why I havne't had time to read through the thread on that one.

It's not the filibuster that's the outright problem, it's the gentleman's filibuster, where senators don't actually have to stand and talk for days, and that is, far as I understand, an informal agreement.

The gentleman's filibuster was really made possible by the last major reform to the filibuster rules in the 1970s. Under the old rules, you needed a two-thirds majority to break a filibuster....but that was two-thirds of whomever was present in the chamber, which meant that everyone supporting the filibuster had to be present in the chamber to vote against cloture.

Under the newer, 60% rule, you need 60 votes to achieve cloture. Period.

This is the one of the foundations of today's gentleman's filibuster.

Hold on. This is feeling a bit absurd. The Senate cannot modify Rule XXII without a 2/3 vote. But couldn't the Senate modify the rule requiring a 2/3 vote to make it a 50%+1 vote? And then couldn't the Senate modify Rule XXII with a majority vote?

This is kind of the logical conclusion of Kleiman's point, isn't it? I mean, his solution that they can just decide Rule XXII doesn't bind them is also fair. I just figure why raise that specter in the first place when you can just change the rules of the rules. Am I missing something?

I don't understand. A few years back, the Republican leadership in the Senate threatened to unleash the "nuclear option" and abolish the filibuster once and for all if the Democrats continued to filibuster Bush's judicial nominees, and the Dems folded immediately. According to your post, it would have been impossible for the Republicans to make good on their threat. What gives?

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