Progressives, liberals and left of center politicians have teamed up to radically curtail the rights of Republican Senators in the next Congress. They have a plan to "kill the filibuster," so that they can establish a top down system of control next year in the Senate. This plan to kill the filibuster will stifle dissent and relegate Republican Senators to observer status in the newly reformed Senate. If you thought that Speaker of the House Nancy Pelosi (D-CA) ran a tight ship during her tenure, get ready for a Senate Majority Leader Harry Reid (D-NV) willing to obstruct all Republican opportunities to offer amendments and extend debate.
The left is promoting a myth that the filibuster can be changed with merely 51 votes. Progressive Katrina vanden Heuvel wrote over at the Washington Post demanding that liberal Senators rid the Senate of Rule 22 by a simple majority vote in the new Congress. This is nothing more than a naked power grab by the left so they can confirm far left wing nominees to the Courts and to establish complete control over the agenda of the United States Senate.
The Senate’s rules are constitutional. According to Article I, Section 5 of the Constitution, “each house may determine the rule of its proceedings.” Senate Rule 22 sets up a procedure for debate to be curtailed with a three-fifths vote (60) of Senators. This rule has been in place since 1917 when the Senate had a 2/3rds requirement to shut off debate. Furthermore, the Senate was set up as a continuing body with only one third of Senators seats up for election every two years pursuant to Article 1, Section 3. The left is promoting a fallacy and they hope that the media does not question the baseless assertion that the filibuster is unconstitutional.
The official Senate web site puts forth one historical perspective of the Senate as a continuing body.
To foster values such as deliberation, reflection, continuity, and stability in the Senate, the framers made several important decisions. First, they set the senatorial term of office at six years even though the duration of a Congress is two years. The Senate, in brief, was to be a "continuing body" with one-third of its membership up for election at any one time. As Article I, section 3, states: "Immediately after they shall be assembled in consequence of the first election, they shall be divided as equally as may be into three classes." Second, to be a senator, individuals had to meet different qualifications compared to service in the House of Representatives. To hold office, senators have to be at least 30 years of age and nine years a citizen; House members are to be 25 years and seven years a citizen. Senators, in brief, were to be more seasoned and experienced than representatives. Finally, the indirect election of senators by state legislatures would serve to check precipitous decisions which might emanate from the directly elected House and buttress the states' role as a counterweight to the national government.
The left is moving forward with the argument that the filibuster is unconstitutional and that the Senate is not a continuing body. Ian Millhiser at The American Prospect relies on two Supreme Court cases that are not relevant to the filibuster for the assertion that the filibuster is unconstitutional.
The Supreme Court's first clear pronouncement on whether past lawmakers can bind future lawmakers was an 1879 case known as Newton v. Commissioners. In that case, the Ohio Legislature had passed a law in 1846 providing that the Mahoning County seat was "permanently established" at Canfield, Ohio. Nevertheless, in 1874, state lawmakers passed a new law moving the county seat to Youngstown, Ohio. Canfield's residents were not amused. During its time as Mahoning County seat, Canfield made significant investments in its county government, purchasing land to house county buildings and spending a significant sum to build a courthouse "suitable for the transaction of the public business of the county." Losing the county seat was also a tremendous blow to local businesses, as Mahoning County residents would routinely travel to Canfield to vote or to petition their government, patronizing Canfield establishments throughout their visit. Nevertheless, the Supreme Court held that the 1874 Legislature had the power to take what the 1846 Legislature had given. In the Court's words, newly elected legislators "have the same power of repeal and modification which [past legislators] had of enactment." Lawmakers cannot tie the hands of their successors. In its 1932 decision in Reichelderfer v. Quinn, the Court established that Newton's holding applies as much to acts of Congress as it does to state laws. In that case, Congress previously enacted a law providing that a large plot of land in D.C. was "perpetually dedicated and set apart as a public park or pleasure ground for the benefit and enjoyment of the people of the United States." A later Congress, however, changed this law to require that a fire station be built on part of the set-aside land. The justices unanimously rejected a challenge to this new law. Just as in Newton, "the will of a particular Congress ... does not impose itself upon those to follow in succeeding years."
As you can see, there is no Supreme Court case declaring the filibuster unconstitutional cited above. This is an activist interpretation of two stale and off point decisions. When you hear liberals declaring that the filibuster is unconstitutional because of the Reichelderfer Case, know that these liberals are reading talking points that have no basis in fact.
Millhiser goes on with another false assertion.
What the Senate is not allowed to do, however, is tell future senators what rules must apply to their proceedings. Because Reichelderfer prohibits a previous Congress from tying the hands of a future Congress, the rules governing Senate procedure in 2010 cannot bind a newly elected Senate in 2011. The old Senate rules essentially cease to exist until the new Senate ratifies them, so a determined bloc of 51 senators could eliminate the filibuster altogether by demanding a rules change at the beginning of a new session. Once the new Senate begins to operate under the old rules, however, this can function as a ratification of the old rules -- essentially locking those rules in place for another two years.
The House of Representatives is not a continuing body and they adopt new rules each Congress. The same is not true of the Senate. The Senate is a continuing body, therefore Mr. Millhiser is flat out wrong. Millhiser is not the only one promoting this myth.
Katrina vanden Heuvel is promoting the myth that there is only one day to change the rules of the Senate with 51 votes.
There is only one day in the year when the Senate can make changes to its rules without the fear of that process, itself, being filibustered - and that day is fast approaching. Jan. 5, 2011, will be the first day of the 112th Congress and, as such, the only day where a simple majority can vote to change the Senate rules (on all other days, 67 votes would be required).
The left is wrong on the facts of this debate. When a liberal tells you that the filibuster is unconstitutional, ask them when the Supreme Court ruled specifically that the filibuster is unconstitutional. They will not have an answer.
When a progressive tells you that the Senate can change the rules with a simple majority vote, ask them how it is possible when the rules specifically state in Rule 22 that a 2/3rds vote is necessary to shut off debate on a rules change.
Don't be fooled by these leftist who will twist Supreme Court precedent, the Constitution and the explicit rules of the Senate to suit their short term goal of taking complete control over the Senate.