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Publication Date

Winter 2019

Abstract

Much of the recent legal scholarship on the Senate expresses concern about gridlock, which was caused in part by the Senate’s supermajority requirement to pass legislation and confirm presidential nominees. This scholarship exalted the value of procedural changes permitting the majority party to push through legislation and confirmations, and failed to appreciate salutary aspects of the supermajority requirement: that it provided a key structural support for stability and balance in governance. The Senate changed its rules in order to address the problem of partisan gridlock, and now a party with a bare majority is able to force through much of its agenda. As a result, the minority party no longer plays its traditional and vital role in Senate deliberation. These rules changes—along with increased party polarization— have diminished the Senate’s traditional role as a centrist institution, and the nation is suffering from its loss.

The Senate’s record in 2017 illustrates the danger of transforming from a deliberative institution to one where a party with a bare majority can force through contentious legislation on a straight party-line vote. This recent record may foreshadow even more extreme steps. This Article examines the “nuclear option,” which was employed to ram through the confirmation of Neil Gorsuch to the Supreme Court, and reconciliation, which was used to steamroll substantive legislation on tax cuts (successfully) and health care (almost). The Senate has lost its way as a deliberative institution and has come to resemble the House of Representatives. To regain its stature as a deliberative body, the Senate must revitalize the role of the minority party and stabilize its procedure.

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