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February 18, 2011


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Steven  Lubet

Do you also think that Republican fillibusters and blue slips are undemocratic? If not, what is the difference? Both sets of tactics are based on rules that protect minority factions

t e whalen

Interesting. Based on your strong commitment to democratic values and high level of dudgeon over the exploitation of procedural rules to thwart the will of majorities, I looked for your signature on the recent petition of academics ( urging a change to the U.S. Senate's filibuster rules. Odd that I didn't find your name there. I'm sure it was just an oversight on your part and isn't related to your political preferences.

Scott McKenzie

The will of the voters was to elect representatives, not to bust unions. The Democrats have few options, and this is one that they have used to allow public pressure to build on Republicans. This is the expression of those voters who elected them. It is not "pouting." It seems you want them to return, sit in their chairs, make their votes and lose. Over and over until the next election. Is that democracy? Claiming they are not "doing their jobs" by physically being in Wisco is like claiming you are not working while at a conference.

For the record, this has to be one of the most partisan posts I have seen on this blog.

Calvin Massey

The present version of the filibuster is a travesty – it amounts to no more than a 60% majority rule imposed by the Senate for its own purposes. The old-style filibuster, in which a member had to hold the floor for debate, could be debased by such tactics as Huey Long’s recitation of Shakespeare and shrimp recipes, but was a recognition of the need for unlimited debate. Fleeing the jurisdiction is the antithesis of debate. “Blue slips” are unpardonable. As for political preference, I suspect that you were all in favor of the filibuster when Democrats used it to block judicial nominees.


The budget showdown in Wisconsin threatens to have a major impact not just on unionized public workers in the state, but also on non-unionized academic institutions, including the UW Law School. For example, under the governor’s plan, law school employees, including professors, who are currently experiencing two years of “furloughs” (unpaid, involuntary leave), would now face a permanent cut in take-home compensation of about eight percent. The cuts are problematic because the law school already has a reputation for low pay, and further cuts would probably hurt both lateral and entry-level hiring as well as (or especially) retention. In addition to cuts in law school compensation, the state’s annual contribution to the law school’s ongoing operations may be reduced significantly. While the cuts could in principle be offset by tuition increases, state legislators are threatening to pass a bill restricting the ability of UW-Madison to raise tuition by more than five percent per year. Whether this cap would apply to the law school is uncertain. In brief, the current budget situation remains fluid, but it would seem to pose significant challenges to UW Law School’s ability to maintain its national reputation. The law school is in the middle of a dean search, and I would guess the new dean will likely have his or her hands full repairing the damage that Governor Walker’s plans will inflict on the state’s only public law school. So while it’s easy to criticize the state democrats for fleeing their legislative responsibilities, the Walker plan has real potential to cause lasting harm to a first-class institution, the rebuilding of which will not be easy. The same goes, of course, for the UW-Madison campus more generally (the faculty of which, incidentally, is not unionized and is generally paid at a level below comparable institutions in other states).

Paul M. Secunda

Two thoughts:

1. Of course the irony of marquetteprof's comments about University of Wisconsin being non-unionized is that the school was about to become unionized and Governor Walker's bill disallows any collective bargaining rights for University of Wisconsin system employees.

2. It is hard to take Calvin's damning seriously. Especially when Governor Walker refuses to negotiate with Democrats or unions and try to come to a settlement. Is that kind of take-it-or-leave-it approach very democratic? I suppose some could say it is because Walker was elected, but I maintain that when he takes away employees' basic civil and human rights, Senate Democrats in Wisconsin are right to use whatever procedural means they have to prevent that from happening. Besides, the increased wait now has led to increased democratic participation by many different people. Calvin has to like that, no?

Steven Lubet

As it happens, I wrote several opeds that were very critical of Democratic filibusters during the Bush II administration, although I do think they are more justified when the subject is a lifetime appointment.

Still, I have to question any theory of small-d democracy that requires minority parties simply to recede into the background. That strikes me as downright un-republican (small-r). What is the point of a quorum rule, other than to require a quorum?


I find it funny when folks turn to procecduralism rather than address a proposal on the merits. The governor's proposal, as I see it, has nothing going for it other than a shameless desire to destroy unions. Its justification -- that killing these particular public sector unions is essential to save the budget (even though the bill isn't even part of a budget plan) and prevent fiscal ruin in the state -- is, as informed commentators on the matter have observed, risible and cynical. The democrats, meanwhile, have done exactly what a set of great speeches, or a Mr. Smith-type filibuster, seeks to accomplish: publicize the injustice that the governor and legislature are seeking to perpetrate. The constitution is, of course, far more than the formal guarantees that exist in a written document and court decisions. And unionism has, since the New Deal, been a core part of our constitution (small-c). To destroy it in one state, through a simple sham budgeting claim, without an extended public debate -- the kind of debate over unionism that the democratic walkout is starting to generate -- would be detrimental to constitutionalism broadly conceived.

All of which makes this simplistic procedural post all the more surprising and disappointing. I would have expected you to be less naive and more willing to delve into the substantive issues, as a scholar.


This post is just silly. The Democrats obviously have to go back at some point, and we're probably talking days and not weeks or months. The only thing that they can accomplish in the interim is to try to swing public support in their (and the unions') favor. What on earth is wrong with that? Isn't that the purpose of legislative delay tactics like the filibuster?

And speaking of, this is a far more justifiable than its current version. Again, the Democrats' tactics will do nothing more than delay things for a short while so public sentiment can swing in their favor (or not). Using the filibuster to impose a de facto supermajority requirement is unconscionable.


How does one reconcile the view that Governor Walker is assaulting the fundamental rights and dignity of public workers with the view of FDR that collective bargaining should be denied to such workers?

FDR's views on this issue are fleshed out in the following article.

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