Douglas Whaley. Law professor, gay rights advocate, atheist, heart transplant recipient, actor, director, novelist, playwright, bridge player, husband, father, cat owner, storyteller. Much humor and, since the writer is a teacher, advice on many topics.
Killing the Filibuster and Letting the Majority Rule in the Senate
One of the many reasons for the logjam in Congress in the
past years has been that while a simple majority is all that is necessary to
pass a bill in the House of Representatives, in the Senate it takes 60 votes to
do so.Why?Because the Senate allows for a parliamentary
procedure called a “filibuster” in which the Senators who oppose a bill may
keep debating it, and debating it, and debating it, unless cut off by a “cloture”
vote, which takes the support of 60 senators.Thus, even though the Democrats have a majority of 53 senators (plus two
independents who usually vote with them), they cannot pass a bill without the
support of some of the 45 Republican senators supporting a cloture vote.
Under Robert’s Rules of Order (used by most deliberative
bodies) debate is closed by the passage of a “Motion To Call the Question,”
which is not debatable (see RRO section 37).In the U.S. House of Representatives such a motion passes on a mere
majority vote.This originally was the
rule in the Senate but in 1806 Aaron Burr called for a reform of procedural
rules and recommended that this particular motion be eliminated as
unnecessary.It is widely agreed that he
didn’t understand what this would mean, but when the rules were revised that
same year they did eliminate any procedure for ending debate.All that is left is a motion to end debate,
which would require a majority vote, but, alas, such a motion itself could be
subjected to a filibuster.
Although the filibuster has been possible in the Senate
since 1806, it was rarely employed until recently.Senator Jeff Merkley (D. Ore.) uses this
statistic to show how the use of the filibuster has exploded in the past few
years: Lyndon Johnson in his six years as Majority Leader of the Senate faced one filibuster, while Harry Reid, the
current Majority Leader, in his six years has had to deal with 391.
This is outrageous.The Constitution cites only five requirements
for Senate supermajorities, including impeachment convictions of presidents,
but none of those apply to cutting off debate.Indeed the drafters of the Constitution considered making
supermajorities a requirement for many forms of legislation but in the end went
with the basic premise that majority rules.The stupidity of the filibuster’s possible use means that the Senate is most
often at a standstill.
Late this year the
Democrats finally took action and managed to pass a rule change that forbade
the use of the filibuster in matters having to do with Presidential
appointments (other than those to the United States Supreme Court).This rule change was deemed the “nuclear
option” because it bombed away some of the protection the filibuster has
traditionally given to the minority party, and the Republicans were duly
outraged at being deprived of this valuable delaying tactic.
Why not go all the
way and simply abolish the filibuster by reinstating the motion to cut off
debate (with a majority vote all that’s needed to prevail)?Well, the answer is that the Democrats are
now in control of the Senate, but that won’t last forever.When they are next in the minority they’ll be
every bit as fond of the filibuster as the current crop of Republicans.
But this is pusillanimous—the
good of the country requires that Congress function as smoothly as possible,
and obstructions as large as the filibuster are relics of the past that we should
no longer tolerate.With Congress’s
approval rating at an all time low any step to make the legislative process
speedier and more efficient should be taken.
Dump the filibuster
completely.Give us back majority rule
in both houses of Congress.
“Benjamin Franklin Riding Shotgun,” May 29, 2010
“How To Make Ethical Decisions,” December 12, 2010
“Ohio To Put Guns in Baby
Strollers,” June 17, 2012
“Obamacare, John Roberts,
and the Supreme Court,” July 3, 2012
Since I graduated from law school in 1968 I've always had some sort of legal practice which varied from extensive in the early years, to these days when I'm retired and mostly just doing consulting work for a hefty fee.In this period I've written a lot of letters threatening legal action on behalf of my client (or, on the rare occasion, myself—see Related Posts below).In the classroom I've passed on my advice on how to create an effective letter, and now I offer it to you, blog reader.
A letter threatening legal action almost always discombobulates a recipient who is not him/herself routinely involved in legal actions.I tell my law students that in their coming practices they will often receive such letters (or nowadays even emails), and they will calmly evaluate what to do about them depending on the legal issues involved and the wisdom of litigating them.But the non-legal recipient of such a letter is in a very differen…
Having a dispute with a creditor? One way to win it (and fast) is to send that creditor a "payment in full" check [hereafter "PIFC"] and end it things in your favor. How does this bit of legal magic work? Read on.
It's always been the law that if you and I have an existing contract, either one of us can propose a modification to that contract, and if we both agree, the contract changes accordingly. There are technical names for this. Say, for instance, that I owe you an undisputed amount of $500. I send you an email and ask if you would take my horse Dobbins is settlement of the debt, and you reply in the affirmative. My offer of something different than what was originally owed (the horse for the money) is called the offer of an "accord." Your agreement to take Dobbins is the "satisfaction." Thus an "accord and satisfaction" in our law is nothing more than a fancy name for a modification agreement. I no longer owe you $500; I owe…
For the last few years I have been crossing the country giving lectures on what I now call the "Golden Rule of Mortgage Foreclosures," which is that such foreclosures cannot proceed without production of the original promissory note signed at the closing. A symposium at Western State University Law School last year at which I gave the keynote address turned into a law review article on point, and that law review article is reprinted below in full. The correct citation for the printed version is 39 W. St. U. L. Rev. 313 (2012). As subsequent developments occur I will add them in red to the original article below. Any corrections or suggestions may be sent to me at email@example.com.
Mortgage Foreclosures, Promissory
Notes, and the Uniform Commercial Code By Douglas J. Whaley*
Introduction As is true
of many things in life the Uniform Commercial Code’s statutes concerning the