08 September 2009

Can A Majority Rewrite Senate Filibuster Rules?

The sixty vote majority required to overcome a filibuster in the U.S. Senate is a de facto constitutional amendment. The theory that allows this rule to remain on the books without majority support in each new session of the U.S. Senate, unlike the U.S. House which must readopt its rules afresh every two years, is the obscure "continuous body" theory of the U.S. Senate.

A recent law review article argues that this obscure theory is unsound, providing an intellectual basis for the repeal of the countermajoritarian rules that come with the theory when the political tides are right.

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