Barack Obama (CC'83) Wins Second Term: Columbia Faculty Members Weigh In on Election 2012
Professor of Law
President Obama returns to Washington for four more years, and for at least the next two he returns to a Capitol of divided government: Democrats are a majority of the Senate, while Republicans constitute the majority of the House. Democrats have 54 votes in the Senate, but lack the 60 votes needed to effectively control the Senate. Recognizing this, Harry Reid, the Democratic leader in the Senate announced shortly after Obama’s election that he would press for filibuster reform—changing Senate Rules which allow forty-one Senators to block a vote on an action supported by the majority.
Some argue we should maintain the status quo. Much of the power of the Senate, one often hears, lies in the filibuster. The framers of the Constitution famously conceived of the Senate as the more deliberative branch of government, designed to counter the populist House and check a powerful Executive. More recently, some Senate Democrats defended their right to filibuster George W. Bush’s judicial nominees, successfully resisting Republican attempts to change Senate Rules to restrict extended debate.
Those opposed to the filibuster, however, cast doubt on the constitutional and historical arguments in its favor. Some argue that the filibuster is an unconstitutional imposition of a supermajority. Where the constitution means to provide a supermajority requirement—to approve a treaty or override a veto—it explicitly does so. The limitation of this argument, however, is that the constitution also gives each House the power to “determine the Rules of its Proceedings.” Opponents of the filibuster are on stronger ground when they question the longevity of the filibuster. The historical evidence shows that though the Senate lacked a way to cut off debate for much of its history (since 1806), Senators did not commonly engage in extensive debate to delay or block action until the late 19th century.
In the end, the most persuasive arguments against the filibuster are about policy and governance today. The modern filibuster is rarely about deliberation and debate, but more often about delay and obstruction. Filibusters are now so common that we typically understand 60 votes as the amount needed to do anything in the Senate.
Proposals to reform the filibuster include requiring senators to remain on the Senate floor if they are filibustering a bill and requiring a decreasing majority of Senators for invoking cloture over a number of days. These measures seek to preserve the deliberative virtues of current Senate procedures while diminishing the use of the filibuster purely to block measures.
The Senate agreed on modest changes in early 2011—agreeing to end the practice of anonymous holds on legislation and nominations for instance. But more extensive changes are unlikely to move forward easily. Moreover, it is not clear that there are 51 votes in the Senate to pursue any strategy for filibuster reform. The problem is simple: How you see the filibuster often depends on whether you are in the majority or in the minority—and on how long you expect to remain there.
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In Memoriam: Harvey J. Goldschmid
Columbia Law School Professor Harvey J. Goldschmid ’65, a renowned corporate governance expert who served as a commissioner and the top attorney at the U.S. Securities and Exchange Commission and played a key role in implementing one of the most sweeping federal securities laws in U.S. history, died on Feb. 12. He was 74.
Goldschmid, the Dwight Professor of Law, was an alumnus of Columbia Law School and Columbia College. He joined the Columbia Law School faculty in 1970 and became the Dwight Professor of Law in 1984.