NYU Law Professor Burt Neuborne Calls Filibuster Unconstitutional

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This week the Senate passed a major reform which would allow the approval of the president’s nominees, both judicial and executive with a simple 51 votes rather than requiring 60 votes. While this has been called the “nuclear” option, Sen. Majority leader Harry Reid, D-Nev., noted that Senate needs to get working for the good for the country. He went on to say that they need to change their ways before they become obsolete. Gridlock is more common in congress than progress, and the move to stop filibustering has been invoked.

  

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According to the Wall Street Journal, “New York University  law professor Burt Neuborne thinks the Senate’s decision last week to go nuclear on the filibuster wasn’t just a partisan shake-up of internal voting rules. The move, he argues, actually righted a longstanding constitutional wrong. The modern filibuster morphed into a de facto super-majority voting rule, requiring virtually every proposed nominee or bill to clear a 60‐vote cloture threshold.” Interestingly, he notes that since it has been the case that 41 senators’ votes could effectively defeat 59 senators’ votes, each vote cast by the 41 senators has become “1.44 times more powerful” than each vote of the other 59 senators. Professor Neuborne comments, ‘that’s unconstitutional.’ He mentions how the Seventeenth Amendment, which guarantees one equal vote per senator, and how Article V, which guarantees each state equal suffrage would both be violated.

Professor Neuborne goes on to say that it’s unlikely that any judge will comment on the voting rules of the Senate. He does feel however that the senators independently should consider the constitutionality of those internal voting rules. Shockingly, he commented, “If the filibuster is unconstitutional, it’s their duty to go nuclear.” In these stressed times of partisanship and endless congressional gridlock, it would be refreshing to see congress be able to move on into actually solving our nation’s problems, so we can continue being the greatest nation, without endless politics getting in the way.

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