Liberal Democrats are going to take a run at the Filibuster in January.  The have adopted idea that the Senate is not a continuing body and that the rules can be changed with a simple majority of Senators voting in a new Congress, in January, to adopt new rules.  This interpretation of the Senate rules ignores the clear rules of the Senate and long tradition of rules being changed with only a 2/3rds vote of Senators.

If the Senate goes forward with this perversion of the Senate’s traditions and explicit rules, conservatives need to take advantage of this opportunity to change the Senate rules to create a multitude of points of order against legislation that infringes on the 2nd Amendment, raises taxes and increases spending, in addition to other ideas.

The first idea that should be deployed by conservatives is to force a vote on the below new rule to protect the Second Amendment rights of all Americans:

Sec. ____. Second Amendment Point of Order.  The Standing Rules of the Senate are amended by adding the following point of order: “It shall not be in order for the Senate to consider an Amendment, Bill, Resolution, Motion or Conference Report that infringes on the right of any American to own or use a firearm unless the Senate waives by 2/3rds roll call vote of those sworn to serve the Senate.”

This new rule would be something that would strike fear in the heart of those who despise the natural right, recognized in the Constitution, of Americans to protect themselves with a firearm. It could be followed with a series of other popular items to establish super majority rules to protect against tax increases and an every expanding federal government.  If conservatives deploy a series of new ideas for Senate rules, a bullying majority of liberals may have second thoughts about changing Senate rules with a simple majority.

Senator Tom Udall (D-NM), and other Senate liberals, are arguing that the Senate as the right to adopt new rules with a simple majority vote.  Udall posted this on his web site. 

The Constitution provides a clear way to fix Congress when it isn’t working. Article I, section 5 of the Constitution states that “each House may determine the Rules of its Proceedings.” The Senate must act on this duty and review its rules at the start of the next Congress.  At the start of the 112th Congress, I will make a motion on the floor of the Senate to take up and adopt its rules by a simple majority vote.

The explicit rules of the United States Senate forbid changing of the rules by a simple majority vote under Rules 5 and 22. 

Senate Rule V states:

The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.

In other words, the rules of the Senate recognize the Senate as a continuing body.  One Senator can’t unilaterally declare that the Senate’s rules don’t continue from congress to congress.  According to the explicit rules of the Senate, Senator Tom Udall is wrong on this point.

Senate Rule XXII states:

Notwithstanding the provisions of rule II or rule IV or any other rule of the Senate, at any time a motion signed by sixteen Senators, to bring to a close the debate upon any measure, motion, other matter pending before the Senate, or the unfinished business, is presented to the Senate, the Presiding Officer, or clerk at the direction of the Presiding Officer, shall at once state the motion to the Senate, and one hour after the Senate meets on the following calendar day but one, he shall lay the motion before the Senate and direct that the clerk call the roll, and upon the ascertainment that a quorum is present, the Presiding Officer shall, without debate, submit to the Senate by a yea-and-nay vote the question:

“Is it the sense of the Senate that the debate shall be brought to a close?” And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn — except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting — then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.

The rules of the Senate are clear that you need a 2/3rds vote to shut down debate on a rules change of the Senate.  There is no exemption recognized at the beginning of a new congress. 

The Huffington Post posted a letter from eight proponents of abolishing the filibuster that argues three points.  The first is that there is no language in the constitution that enshrines the filibuster.

Many argue that senators have a constitutional right to extend debate.  However, there is no explicit constitutional right to filibuster.

There is an explicit constitutional provision that allows both chambers to set up rules of proceeding.  The Constitution explicitly states in Article I, Section 5 that “each house may determine the rule of its proceedings.”  To argue that the filibuster is unconstitutional would lead to the conclusion that all of the Senate’s rules forcing a super majority votes for points or order, suspension of the rules and the budget rules are all unconstitutional. 

The logical conclusion of these liberal constitutional scholar’s arguments would lead to anarchy in the Senate in the opening moments of a new congress.  Senators would be allowed to offer amendments that violate the explicit rules of the Senate. 

For example, there are explicit rules to be followed before a Senator can offer a Motion to Recommit pursuant to Rule XV that states.

An amendment and any instruction accompanying a motion to recommit shall be reduced to writing and read and identical copies shall be provided by the Senator offering the amendment or instruction to the desks of the Majority Leader and the Minority Leader before being debated.

The interpretation of the liberal scholars and Senator Udall would allow for a simple majority to waive this rule, instead of the 2/3rds vote required today. 

Argument two by the 8 liberal constitutional experts is that the filibuster was not part of the original design of the Senate.

Although historical lore says that the filibuster was part of the original design of the Senate, there is no empirical basis for that view.  There is no question that the framers intended the Senate to be a deliberative body.  But they sought to achieve that goal through structural features of the chamber intended to facilitate deliberation — such as the Senate’s smaller size, longer and staggered terms, and older members.  There is no historical evidence that the framers anticipated that the Senate would adopt rules allowing for filibusters.

This is a false statement.  In the Notes of Debates in the Federal Convention of 1787 Reported by James Madison (Athens, OH, 1984), p. 193, as quoted in The late Senator Robert C. Byrd quoted James Madison in Byrd’s book, The Senate, 1789-1989, Addresses on the History of the United States Senate it states:

Madison said of the Senate, “in order to judge of the form to be given to [the Senate], it will be proper to take a view of the ends to be served by it. These were first to protect the people against their rulers; secondly to protect the people against the transient impressions into which they themselves might be led.

The filibuster is consistent with the idea to protect the people from elites in Washington who could railroad through legislation without sufficient debate. 

Retiring Senator Chris Dodd (D-CT) last week referred to the Great Compromise that lead to the creation of the United States Senate where he argued that the Senate was set up as a place for every voice to be heard before a vote.  

Dodd cited the role of Connecticut’s delegates in the framing of the Constitution.

As a Senator from the State of Connecticut—and the longest serving one in its history—I take special pride in the role two Connecticut Yankees played in the establishment of this body. It was Roger Sherman andOliver Ellsworth, delegates from Connecticut to the Constitutional Convention in 1787 who proposed the idea of a bicameral national legislature. The Connecticut Compromise, as it came to be known, was designed to ensure that no matter which way the political winds blew, or how hard the gusts, there would be a place for every voice to be heard. The history of this young democracy, the Framers decided, should not be written solely in the hand of the political majority. In a nation founded in revolution against tyrannical rule, which sought to crush dissent, there should be one institution that would always provide a space where dissent was valued and respected. E Pluribus Unum—out of many, one. And though we would act as one, the Framers believed that our political debate should always reflect, that in our beliefs and in our aspirations, we are, in fact, many. In short, our Founders were concerned not only with what was legislated, but, just as importantly, with how we legislated.

The third argument made by the 8 liberal constitutional scholars argues that the filibuster rule was not a consensus piece of rulemaking.

The adoption of Rule XXII in 1917 did not reflect a broad-based Senate preference for a supermajority cloture rule.  At that time, a substantial portion of the majority party favored a simple majority rule.

That could be said of any rules change, legislation or other item passed by the Senate.  There usually is not consensus in the passage of items in the Senate, merely enough Senators to pass a new rule under the procedures established over the history of the body.  The fact that some in the majority did not support the effort and that this rule was the “product of bargaining and compromise within the minority” is immaterial to this debate.  The rule passed and was memorialized in the Senate’s rules. 

Liberals would be wise to listen to Senator Dodd when he argues that filibuster reform will destroy the nature and traditions of the United States Senate.

After all, no other legislative body grants so much power to each member, nor does any other legislative body ask so much of each member. Just as the Senate’s rules empower each member to act like a statesman, they also require statesmanship from each member. But these rules are merely requiring from us the kind of leadership that our constituents need from us, that history calls on us to provide in difficult times such as these. Maturity in a time of pettiness, calm in a time of anger, and leadership in a time of uncertainty—that is what the nation asks of the Senate, and that is what this office demands of us. Over the past two centuries, some 1900 men and women have shared the privilege of serving in the Senate. Each of us has been granted a temporary, fleeting moment in which to indulge either our political ambition and ideological agenda, or, alternatively, to rise to the challenge and make a constructive mark on our history.

This bold change in the rules may come back to haunt liberals if the party in power changes in 2012.  It may haunt them in January of next year if conservatives establish a myriad of new rules that force a 2/3rds of Senators to vote to infringe upon the 2nd Amendment, raise taxes and expand government.  Liberals would be wise to leave the Senate’s rules alone.