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So Called Constitutional Option Is A Trick

By: Brian Darling (Diary) | January 5th, 2011 at 04:00 PM |

RESIZE: AAA

The Senate commenced debate on a filibuster reform today. Be aware that liberals in the Senate are using strong arm tactics to seize power. They are using something called the “Constitutional Option” and you need to understand that this is a rhetorical and procedural trick. There is nothing unconstitutional about the filibuster and the “Constitutional Option” is a means to ignore the explicit rules of the Senate.

Senators Jeff Merkley (D-OR), Tom Udall (D-NM) and Tom Harkin (D-IA) have started a process today they hope to result in a chipping away at the filibuster rules. The Udall of New Mexico Resolution has been provided to the public today. It has flaws, yet the procedure being used to railroad this resolution through the Senate is an even bigger problem.

Left wingers from the Daily Kos, Center for American Progress, Media Matters and Firedoglake have been cheerleading for a rules change for months. (Editors Note – The Center for American Progress was against this very tactic in 2005 and has some great resources on why the filibuster is an effective ”tool that empowers 41 or more senators to prevent a narrow majority from abusing its power.”) Now lefties in the Senate have taken up a parliamentary fight to silence conservative Senators Jim DeMint (R-SC), Tom Coburn (R-OK) and Rand Paul (R-KY). They also want to silence Republican Leader Mitch McConnell’s (R-KY) power to help his caucus to participate in the legislative process. If these liberals are successful, they will have set a dangerous precedent that empowers the party in power to take away all the rights of individual Senators with a simple majority vote.

It is important to tell these liberals – “be careful what you wish for.” As Mike Hammond wrote earlier today on this site ” If 2012 is a ‘Republican year’ –- and it may be -– I will urge that the first piece of legislation in the 113th Congress be a composite bill to repeal every major piece of Big Government legislation from the Obama administration, most significantly, ObamaCare.” Is that what you really want liberals? Do you want 2013 to be the year of unfettered power for Republicans if they control the House, Senate and Presidency? I think you will be crying for the filibuster to be reinstated if that happens.

Here is the plan. Liberals will argue that the Senate can change rules with simple majority vote. They call this the “Constitutional Option” and the theory goes that a new Senate can change rules before they operate, and implicitly consent, to new rules. The claim that in the “first day,” they can change the rules with a simple majority vote. There are a few problems with this theory.

First, the rules specifically forbid this power grab by liberal Democrats (See Rule 22). Rule 22 mandates states that the Senate can’t vote on a rules change until 2/3rd Senators vote to end debate on a rules change. Rule 5 memorializes an agreement from 1959 when Senators wanted it written in the Senate’s rules that the Senate is a continuing body. In other words, the Senates Rules state that (1) you need 2/3rds to shut off debate on any rules change, and (2) the Senate’s rules continue from Congress to Congress.

Second, they claim that the rules don’t apply for the period of time that the Senate has not operated under the rules. They argue that before the Senate’s rules are followed by a new Congress, they can change them with a simple majority vote. Now they have moved the goal posts on this issue to now say that they can do so in the “first day.” They are wrong because the Senate has already functioned under the rules of the Senate in the opening moments of the 112th Congress.

Senator Bob Smith(R-NH) in 1999 introduced and passed a resolution requiring that the Pledge of Allegiance be read before the Senate conduct any business. That was done at the opening of the Senate today. At that point the Senate was operating under the rules. It didn’t end there. The next order of business was to swear in new members. The oath used to swear in Senators is written in Rule 3 of the Senate’s Rules. At that point the Senate was operating under the rules.

After that, Senate Majority Leader Harry Reid (R-NV) introduced and passed Senate Resolutions 1-4 by unanimous consent. When a unanimous consent request is made, any Senator can object to the request and it would have forced the rules of the Senate to be implemented for debate and the laying over of the resolution for one legislative day. Later in the day, Senator Tom Udall (D-NM) introduced his resolution and Senator Lamar Alexander (R-TN) objected. Under the rules of the Senate, that resolution lays over for one day before the Senate can consider the resolution.

Now, it is expected that the Senate will recess at the end of the day to continue the fiction that the Senate is in the same legislative day when they come back into session in two weeks. What Reid will do is to recess the Senate, and not adjourn for the day, so they can make believe that they are in the same legislative day in 2 weeks when they come back into session. This theory is flawed and should be rejected by fair minded Senators.

This theory being used to justify this extraordinary parliamentary power grab is wrong for several reasons. I have a detailed explanation of why this idea is flawed published over at The Foundry.

There are four myths about the filibuster that you will hear over and over again. These myths are needed to justify any attempt to change the Senate’s rules with a simple majority vote. This is a power grab, pure and simple. The fact of the matter is that the explicit words of the Constitution, the Senate’s written rules, and the history of the Senate show that the filibuster was created for good reason. Extended debate and unlimited amendment is part of the fabric of the institution.

Greg Sargent at the Washington Post has a description of the actual Udall Resolution. These rules changes would reduce the power of the minority. There is nothing in these proposed rules to strip Senate Majority Leader Reid of the power to block Republicans from offering amendments. He has done so 44 times over the past 4 years.

Tags: Center for American Progress, Daily Kos, Filibuster, Firedoglake, Jim DeMint, Media Matters, Mitch McConnell, Rand Paul, Tom Coburn

COMMENTS

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Tbone

by his testicles, look him in the eye and tell him that Harry really doesn’t want this to happen or his Democrat Senator’s states will suffer in a big way.

sarg01

The Dem leadership wants to do anything with the filibuster, especially not now that they don’t have the House. I think they want to be seen as being against the filibuster so they can pander to their base, but not actually get rid of it.

Why do you think it’s Udall and not Reid or Schumer or Durbin heading this?

dforston

I saw you on C-Span at Heritage yesterday in regards to this very topic. The presentation went back quick. Wish it would have lasted longer, it was very informative.
SusanAnne Hiller

Excellent dissection.
holliday

This post seems to be confusing the ability of the Senate to set its rules with a requirement that the Senate follow the previous Senate’s rules. Article 1 Section 5 of the Constitution says that “Each House may determine the Rules of its Proceedings”. In this case, Democrats are proposing rule changes and, since the fillibuster is part of the rules of the _previous_ Senate, saying that a simple majority vote is sufficient to change the Senate rules. Once new rules are adopted, those rules would need to apply to any votes for change.

While this means that a party could theoretically change the rules on the first day of Congress in order to do away with the fillibuster or otherwise dramatically alter the balance of power, neither party is likely to do so because of the precedent it would set when the minority regained the majority. In this case the proposed changes are fairly minor – no more secret holds, you must actually talk if you want to filibuster, and each party gets to propose at least three germane amendments for any legislation (http://voices.washingtonpost.com/ezra-klein/Rules%20Reform%20One-Pager.pdf).

While both Democrats and Republicans have done many shady things in the past, these minor changes to the Senate rules, and the process being used to implement them, do not seem to be particularly controversial unless you assume that everything the other side does is evil.

sarg01

… that’s what they mean when they say “continuing body”. The Senate rules are explicitly designed to persist. The key question (on this point anyhow) is whether or not the Senate is allowed to set rules that restrict future Senators.

A more germane point is that the Senate was conceived as a place to kill legislation passed by an excited majority that swept into the House in a wave election. Weakening its ability to obstruct an agenda is a serious shift in the way America works and should not be undertaken because a bunch of leftist are annoyed they couldn’t ram even more of an unpopular agenda down our throats before being held accountable to the voters.

Our system already provides a way for a democratic shift of the agenda, all they have to do was win three elections in a row, and they only managed two.

JSobieski

By analogy, we could amend the Constitution to change the process for a constitutional amendment, but that amendment would have to go through the existing process. Subsequent amendments would go through the new amended process.

The old rules prevail until the new rules pass.

Locke

for rules, or systems of rules, that contain binding supermajority requirements for their own amendment.

Now we have another argument applicable only to Presidential appointments – from Rush Limbaugh and his A-team of legal experts no less. The argument is that the Senate has authority to make and change rules governing what it is able to do, it lacks authority to limit by rule what the President can do. I may not have stated this argument very well, since I think it is pure sophistry. The filibuster of an appointment does not affect what the President may lawfully do, which is what is important from a legal perspective.

I think these clowns are going to do this and cannot be stopped by public opinion, which is at best highly suspicious of the filibuster. So the forces of good had better be marshalling their legal resources.

Locke

The argument is that, while the Senate has authority to make and change rules governing what it is able to do, it lacks authority….
JSobieski

The Constitution divides up powers and assigns one branch with primary responsibility and another branch with a subsidiary role.

Legislation – Congress is prime, President has a secondary role
Nominations – President is prime, Senate as a secondary role

Can the Senate enact a Senate rule requiring 100% consent for all legislation? Yes. Congress makes the laws—period. The President only gets the opportunity to say yes or no, and that is subject to override.

Can the Senate enact a Senate rule requiring 100% consent for nominations? No. This is beyond “advise and consent”.

This isn’t a 100% no doubt kind of argument, but it isn’t sophistry either.

A more clear example would be treaties. The Senate cannot by rule change the cloiture requirement for a treat to exceed 2/3 of the Senate. That is a requirement that contravenes the Constitution in an area where the balance between President and Constitution is expressly set forth.
Locke

do (within its constitutional authority, of course), regardless of the impact that may have on what the President is able to accomplish.

This stuff about one branch being “prime” and the other having a “secondary role”, and “an area where the balance between President and [Congress]” reminds me of the fuzzy analogical reasoning or “emanations” the Warren Court was famous for.

That said, I agree that “sophistry” is a bit too strong.
JSobieski

The Senate for example, cannot require unanimous consent for a treaty. Why? Because of the Constitution provides a specific way of balancing the executive and legislative branches on the issue. Those balances cannot be reset by Congress.

The language of “advise and consent” is not used with respect to legislation. Ergo, nominations are different than legislation under the Constitution.

The battle between Article I and Article II has generated quite a bit of fuzzy reasoning far before the Warren Court. The Federalist papers clearly do allocate primary responsibility and corresponding checks by other branches. The Constitution uses different terminology, but Federalist papers explain the reasoning.

The phrase “advise and consent” means something different than treating nominations like legislation. The open question is what the meaning/impact of that difference.

Under your interpretation, nothing stops the Senate from saying we will approve the nominee if and only if the House approves the nominee first. Or, if a national league team wins the World Series. Or some other ancillary burden.

“Advise and consent” is not “whatever you want according to your wishes”. Its not “vote up or down at your discretion.” Its “advise and consent”.
JSobieski

Relevant Text:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

Note that there is no reference to Senate Rules in Article II.
Nor is the text above listed as a power of Senate in Section 3 of Article I. There is a list of purely discretionary powers in Section 3 of Article I, but the power over nominees is not listed there. To the contrary. it is a power of the President.

I don’t think it is a slam dunk argument, but I think it is FAR better than sophistry, and I also think it is precisely correct—in line with what the Founders thought.

holliday

“The key question (on this point anyhow) is whether or not the Senate is allowed to set rules that restrict future Senators.”

I think we’re in agreement on this point. There is clearly some gray area about what is appropriate based on past precedents, but the rules as laid out in the Constitution seem to give the majority party a fair bit of leeway when the President of the Senate (the US Vice President) is of the same party.

“Weakening its ability to obstruct an agenda is a serious shift in the way America works and should not be undertaken because a bunch of leftist are annoyed…”

I disagree with you here that the proposed changes weaken the minority party. See http://voices.washingtonpost.com/ezra-klein/Rules%20Reform%20One-Pager.pdf for the actual proposal, which has five items:

1. Eliminate the ability to filibuster a motion to open debate since the original intent of the filibuster was to allow unlimited debate (subject to a cloture vote).

2. Eliminate secret holds. This seems like something that would be almost universally approved of.

3. Let the minority propose at least three germane amendments on all bills. This is something Republicans asked for.

4. Force any Senator who wants to filibuster to actually hold the floor. This is how most people believe filibusters work (see: Mr. Smith Goes to Washington), so the rule change merely makes reality match perception.

5. Change the post-cloture debate period from 30 hours to 2 hours for nominations. The argument here is that if a cloture vote has been successful, two hours of further debate is sufficient for a nomination since, unlike a bill, no amendments are possible.

These seem reasonable to me, and not a case of “a bunch of leftist are annoyed they couldn?t ram even more of an unpopular agenda down our throats”.

sarg01

The point is that it clearly reduces the facility of the minority to obstruct. The reason we have a bicameral legislature is precisely so one house can kill what the other house does if it doesn’t have broad enough appeal. The Senate is all about broad appeal, the House is all about democracy and the will of the people.

I just think it’s a major and unwarranted shift in the way our legislature operates. The reasoning behind this proposal is at odds with the concept of the Senate in general. I’m not saying it’s unconstitutional, but it’s certainly adjusting a foundational principle as a reaction to disappointment at what the left sees the 111th as failing to accomplish. I don’t really think there’s a reason to make a change in either direction at the moment. That being said, given how the public punished the 111th in the polls, it would seem that if changes were warranted, the direction would be in favor of making it HARDER to pass things, not easier. The voters clearly determined the 111th was succeeding at doing things the voters didn’t want them doing.

holliday

The flip side of your argument is that the filibuster was never meant to be used as often as it was in the previous two sessions, so in fact this change corrects “a major and unwarranted shift in the way our legislature operates”. The key point to me is that the rule changes don’t seem to be a far left power grab as it was characterized in the original posting, but is instead a moderate change to bring the Senate rules back in-line with the way the body has operated in the past.

Looking at past history, I thought it was wrong when Delay redistricted Texas in the mid-2000s, and I supported the gang of 14 when they upheld the right to filibuster nominations. Removing filibusters on nominations and mid-decade redistricting both seemed like naked power grabs, and as such were worth speaking out about. However, the five proposals that Udall and company have put forth seem like reasonable changes that increase transparency while returning the Senate to a more traditional mode of operation, and, as noted in a comment below, the way in which this change is being implemented (majority vote) seems to have a precedent going back to 1975.
sarg01

The existence of the filibuster is more a happenstance than deliberate design. However, being that it has been in practice for the vast majority of the length of time we’ve had a nation … and given that the filibuster in no way prevented our rise to “American exceptionalism”, nor did it even thwart the will of the people (when it was broad enough) to prevent things like the Civil Rights acts.

The filibuster has been used in increased amount because the parties have legitimate differences which can’t be reconciled, and each party has been increasingly determined to cut the other out and use pure “power politics”. In the 111th Congress, it was the Dems who deem-and-passed. It was the Dems who just decided not to pass a budget in order to avoid putting an official number on the deficit. It was the Dems who lost a Senate election and then had the House endorse a bill they had just finished raking through the mud because they could no longer pass a conference report in the Senate and weren’t even willing to compromise enough to get a single R Senator on board. Not Snowe, not Brown, not Collins.

The Rs used the only tool they had to slow the train down. The voters spoke on this subject and endorsed the R position, not the D one. Now, you’re free to believe that was just the will of the people who voted and not the American people as a whole, but you can’t make an argument that the filibuster represents a thwarting of democratic principle (it does, of course, as that’s what the Senate is for) and then ignore the democratic result of the last election.
Locke

Once the precedent is set this year, they will do whatever they bloody well please next year.

Brian Darling

You clearly are a liberal posing as a conservative on Red State. You have cut and pasted two posts from the pro-filibuster reform forces at the Washington Post. You make no attempt to respond to the arguments in the four corners of my post.
First of all, let’s not lose sight of the fact that the procedure being used to bring up the bill is wrong and against the rules. Let me take the proposals one by one to tell you why they are not good.
1. If you eliminate filibusters on motions to proceed then you are giving the Majority Leader more power to control the agenda. This will take away more rights from the minority.
2. Secret holds are merely a courtesy extended by Leaders Reid and McConnell to members who want to object to unanimous consent agreements. The Leaders could agree to rid them from the Senate without a rule.
3. Why would members agree to give up the right to offer non-germane amendments to bills? That proposed rule would severely limit the subject matter allowed for amendments.
4. Would this new procedure allow a number of filibustering Senators to pass around floor time to filibuster a bill or would only one member have to burn time in a filibuster. This is an important nuance and I would have to read the proposed rule to understand the ramifications of this idea.
5. The post cloture argument is really not a big point of contention. This idea seems to be a solution in search of a problem. It hardly ever happens that the minority forces the burning of all post cloture time during a filibuster. The only time that comes into play is at the end of a session when the Majority Leader is trying to jam through multiple bills.
These ideas, if they are so great, should be debated and subject to a 2/3rds vote pursuant to the Rule 22 to shut off debate.

froster

1. Is there a removal of the motion to proceed in the resolution? The way it reads to me is the motion to proceed would still be allowed (only the time would be cut down to two hours) except in the case of executive nominations. So HCR could be filibustered on the motion to proceed but Hillary Clinton’s nomination couldn’t, for instance.

2. This has already been objected to by numerous Republicans. (and it should be gotten rid of) There’s no reason why we can’t know who is objecting to the bill and why. If it’s really for a pathetic excuse, they shouldn’t be objecting.

3. Agreed.

4. This really isn’t that hard. The Presiding Officer can’t entertain any motion or quorum while a senator is speaking. From what I gather from the legislative language, any Senator who wants to filibuster can be recognized, but there has to be at least one member of the opposition on the floor.

5. We both agree on this one too.
littlehouse18

Only 18 days here and all posts only on this one issue, supporting the Dems..
holliday

I’ve been lurking on this site since at least 2004, but only registered to post on the filibuster issues recently. I’m definitely to the left of most posters here, but pretty far to the right of the likes of the folks at Daily Kos or whatever the big liberal blog is nowadays. Regarding the insinuation that I “cut and pasted” from the Washington Post, that’s untrue – I linked to a PDF outlining Udall’s proposal.

As someone above pointed out the shenanigans that went on with Kennedy’s seat in Massachusetts as an example of a Democraic power grab, both sides have behaved shamefully in manipulating Washington rules. That said, this site berated the “Gang of 14″ during the judicial nomination filibuster discussions – see for example comments in http://www.redstate.com/ken_taylor/2010/07/21/lindsey-graham-i-have-had-it-with-you-and-you-no-longer-represent-me/ – but is now berating the Democrats for a much milder proposal. I think if you ignore the “D” or the “R” by the Senator’s name and simply look at what is being proposed, any outrage against that proposal is misguided.
powertothepeople

we were not smart enough to know what we are against. How about you shove it and go back to lurking. We do not need your lectures or insight.

Kyle-MI

If the Senate rules do not carry over from the previous session, then what rules do they operate under during the first day? If there are no rules, then how can they operate at all?

The Constitution does not restrict Senate rules from carrying over. As you indicate all it states is “Each House may determine the Rules of its Proceedings”. But the Senate has already determine its rules carry over from one session to the next and it has rules in place for changing the rules. If the Dems change the rules arbitrarily (which is what they are proposing) then they are not just ignoring their own rules, they are ignoring the Constitution.

JSobieski

So the House does operate from a blank slate each time. There is nothing (except for Senate Rule V) that prohibits such treatment in the Senate.

I am agreeing with your conclusion, just not your reasoning.

dmccracken

Every 2 years it entirely turns over (all house members stand for election and get sworn in again). The Senate is different as only 1/3 of the Senators stand for election in any given election year, so 2/3 of the body continues from session to session. Therefore different reasoning applies.

whitman

must be presumed to be evil until shown otherwise. I think the problem is with the precedent set by the process. This may not be a big deal with these changes, but next time there will be more important changes and the precedent will be set that it can be done with a simple majority.

holliday

I’m not very familiar with the history of Senate Rule changes so there may be other precedents, but according to this article from Time (http://www.time.com/time/magazine/article/0,9171,912966,00.html) the precedent was set in 1975 that the Senate could adopt new rules by majority vote, and it was a Republican Vice President who made that ruling.

“They got a boost from Rockefeller’s ruling that each new Senate draws up its own rules and that until Rule 22 was readopted, only a simple majority was required to change past practices.”

JSobieski

But Rockefellers ruling is clearly contrary to the rules that exist in 2011.

The points of continuity and amendment process are specifically set forht in the rules. We don’t know from the article what the 1975 version of the rules were.

The idea that a one man ruling not based on a Constitutional issue can undue the explicit language in the rules is pure power grab.

Put another way, if there isn’t a Constitutional issue, the language in the rules should prevail and that fantasies such as “each Senate starts anew” is pure crap give that the rules specifically provide the opposite.

holliday

“We don?t know from the article what the 1975 version of the rules were.”

1975 is when the cloture threshold changed from 67 votes to 60 votes. Rule 22 is the cloture rule. Rockefeller’s ruling was that until the Senate votes to adopt new rules (or votes to re-adopt the old rules) the cloture rule (Rule 22) does not apply since that rule has not been adopted by the current Senate yet. However, once the rules have been adopted by the new Senate they apply to all future votes, including any votes to change the rules.
JSobieski

Rule V says that the Senate is a continuing body, and there there is no majority rule at the beginning.

So the issue is, did Rule V exist in 1975–and that is not something you are answering.

I get that Rule XXII changed, but did Rule V?
holliday

In trying to answer your question I actually learned a lot, so thank you. http://www.law.harvard.edu/students/orgs/jlpp/Gold_Gupta_JLPP_article.pdf has a very detailed history of filibuster reform. In 1959 a compromise proposal passed with 72 votes that declared the Senate a continuing body and bound the following session to follow the previous session’s rules (pg 247) – essentially, rule 5. Whether this decision was Constitutional or not has been an ongoing question since at least the early 1900s since it is highly questionable whether Article 1 Section 5 prevents a new Senate class from making its own rules.

Rockefeller’s ruling in 1975 essentially said that the Senate does not have to adopt the previous session’s rules (ie follow rule 5), but may decide its own rules based on a majority vote. If you read the paper that is linked there are very strong arguments on either side of the issue, although it’s fair to say that anytime the Constitutional option is invoked it is generally done as a power grab by the majority against what has been seen as an obstructionist minority – in the Civil Rights era both parties ran on platforms of using the Constitutional option as a way to overcome Southern Senators blocking Civil Rights legislation.

It is clear that invoking the Constitutional option is generally something that is best avoided, as doing so sets a precedent for future sessions that rightfully scares any potential future minority member. It is also clear from the history outlined in that paper that without the threat of invoking the Constitutional option the Senate becomes increasingly obstructionist, so I suppose the current actions by the Democrats are both a dangerous precedent and an inevitable check.
JSobieski

Nothing in the Constitution requires the Senate to adopt fresh rules—it simply requires the Senate to create rules.

I don’t see the current efforts by the Democrats to undercut the fillibuster as having anything to do with the Constitution.

Thanks for the article though. I will take a nice detailed look at it tomorrow.

In case there is any doubt about my position:
(1) I think the “Constitutional” option only applies to nominees. I think the fillibuster of nominees is unconstitional because Senate rules can’t diminish Article II powers of the Presidency.
(2) I think that Senate rules regarding fillibusters have to comply with the Senate rules requirements for changing the rules.

In summary, I don’t agree with lumping two distinct issues together as the “constitutional option” since what the Ds are doing has nothing to do with the Constitution. They are actually arguing about a Senate rule and interpretating the rule to mean a fresh vote at the beginning of the term—something that is historical untrue.

In contrast, judicial fillibusters were very rare (small handfull) until recently.
cwilson

From NRO today:

In 1959 and 1975, Senate rules were in fact amended to reduce the cloture threshold. But the changes were made through the regular order, and Majority Leaders Taft, Johnson, and Mike Mansfield successfully opposed efforts to use extraordinary means to achieve such ends.

If I remember correctly, the whole incident with Rockefeller was eventually tabled, so it has no precedential value — and THEN 2/3 of the Senate voted to adopt the desired rules change. Sure, that’s like holding a gun to somebody’s head to force them to do what you want — but the thing is, they DID vote to change the rules, according to the procedure outlined in the rules themselves. Hence, totally differently than today’s Dems.
Spiral

If you read Gold and Gupta on filibusters, you will learn that a majority of the Senate voted for the change in rule 22 and then only later did the 2/3rds of the Senate vote to ratify the change, just to make it look like they were still governed by rule 5.

It’s a long paper, the one by Gold and Gupta, but it’s well worth reading. If you read it you will also learn that the Senate rules are a paper tiger, often made into a nullity through the use of “Senate precedents,” which is basically the principle of majority rule.

If the GOP regains the majority in the US Senate and the White House as a result of the 2012 elections, they must not give the Democrat Senate minority any ability to block GOP nominations or legislation. Not out of “respect for tradition.” Not out “concern for bi-partisanship.”
Spiral

and you will see a pdf file that you can download and read at your leisure.

It’s important.
cwilson

back in 2005 or so. However, it was not a history lesson…it was a position paper. They were trying to show, by hook or by crook, that the Republicans COULD change the precedent with respect to judicial nominations using a simple majority, and were pulling in ANY possible example of tu quoque they could. Whether the legislative record, recited IN FULL, supported them or not. The contention of many at the time was that their gloss over “well they voted for it using a simple majority, then just ratified it later with 2/3″ ignores important concepts such as: it did NOT actually take effect UNTIL it was so ratified. Again, gun-to-the-head and all, but still…
Spiral

Whether the constitutional option, executed by a simple majority of US Senators, changed the filibuster in 1975 or whether these Senators simply put a “gun to the head” of the Senate and forced it to happen is of minor significance.

The point is that a simple majority of US Senators can force a change in the senate rules.

This is something all conservatives should remember the next time the GOP owns a Senate majority and the Democrats are blocking the GOP agenda. The GOP doesn’t have to just accept what the Democrats are doing. They can and should use the constitutional option and enact their agenda, not bow to “respect for tradition” while the country suffers.
JSobieski

Or was that Rule implemented as part of the 1975 rule changes?
JSobieski

was based on a Constitutional issue that involved a potential ruling by a parliamentarian. It was not a brute force move—i.e. we only need a simple majority.

There is no such Constitutional issue with regards to legislation, so removing the fillibuster with less than 2/3 vote is a brute force power grab.
Spiral

In 2013 I hope the GOP will have a majority in the Senate and that the President will be GOP as well.

At that point, we should not have to worry about whether 41 Democrat US Senators are going to filibuster a conservative nominee to either the federal court of appeals (example: Miguel Estrata) or the US Supreme Court.

Similarly, when we move to enact tort reform. The trial lawyers will press 41 Democrat US Senators to filibuster tort reform. But a majority GOP Senate should simply get rid of the filibuster so that a majority could pass tort reform.

Also, Obama-care. We should not have to gather 60 votes in the Senate to repeal Obama-care. We should just have an up or down vote on repeal. If more Senators support repeal than Senators opposing repeal, repeal of Obama-care passes.

Period. No more excuse making. No more belly-aching about obstructionism and lack of “bi-partisanship.” None of that. Let’s have US Senators vote and then the American people can hold Senators accountable for how they vote.

Senators Boxer, Schumer, Reid and Durbin along with 37 other US Senators should not be able to keep America sailing on its course with bankruptcy.

The filibuster is basically a suicide pact, a believe that “consensus” is more important that sound government.
http://www.gmsplace.com/ civil_truth

I also oppose relying on tactical arguments to change institutional protections. Especially when the other side gets a free hand thereby to launch a first strike.
Locke

This hinges on Article I, section 5, paragraph 2, “Each House may determine the Rules of its Proceedings ….” Construing this in conformity with the amendment provisions of Article V means giving effect to the language of the rules, even where they, like the Constitution itself, establish supermajority requirements for amendment.
JSobieski

so I agree, the Senate Rules apply with respect to its Article I powers.

I do not agree with that mere Senate Rules can materially constrain Article II powers.

Brian Darling

That precedent flies in the face of Rules 5 and 22 of the Senate. It is true that a majority can ignore all the rules if they so choose, but that does not negate the fact that the rules explicitly state that (1) the Senate is a continuing body, and (2) you need a 2/3rds vote to shut off debate on a rules change. This is not the first time the so called “Constitutional Option” has been invoked and it probably will not be the last.

ohiohistorian

the Senate is a continuing body, so there is no such thing as a “prior” Senate, only the current one. There are rules to elect leaders, etc but to change the rules debate has to conclude, which requires a 2/3 majority vote to conclude debate.

But all of this said, all Harry has to do is suborn the Parliamentarian to going along with him, and it is a done deal.

romeg

The Old Nuclear Option is The New Constitutional Option.

cwilson

What the R’s were proposing in 2005 was not the same as what the D’s are trying to do now; the R’s approach (a) did not depend on the first-day fiction, (b) was not an attempt to violate the existing Rule V concerning the continuing-body issue, and (c) did not attempt to change Rule XXII itself concerning cloture. Instead, the R’s were attempting to institute a new precedent that stated that Rule XXII did not apply to nominations, due to a superseding Constitutional “requirement” for ‘advise and consent’ — e.g. up or down votes — on those matters (their words). See WaPo

We can reopen the arguments about the advisability and/or logical coherence of that gambit, but it was a different gambit than Udall?s. His proposal immediately makes the Senate into a smaller version of the House with longer terms and disproportionate representation. The argument about the 2005 Republican approach was a slippery slope one: IF additional changes were somehow made using the same technique (not sure how this would happen since the whole rationale was predicated on the wording of the Const regarding appointments, as distinct from legislation), THEN maybe down the road the Senate would become just like the House?

So, both in process and immediate result, the 2005 R ?Constitutional Option? and Udall?s current one are very different.

I think it does a disservice to the R’s to draw a direct equivalence between 2005 and today, when that equivalence is false. There’s substantial nuance involved.

politicalpaw

only needing Manchin & 3 others, removing Filibuster assures Senate Obamacare repeal OR attach Obamacare repeal w debt ceiling

@PoliticalPAW

earlgrey

froster

It needs 13. (47+13=60) Manchin is a guaranteed supporter for certain parts of the repeal, but probably not all.

This bill/resolution does NOTHING to lower the vote threshold.

Mike Ferguson

froster

If he put that it needed 67 votes to be repealed in that bill, (and I don’t think he’s did) literally nobody has picked up on it.

But I don’t think he has – it would have been reported by someone before now.

Mike Ferguson

http://www.redstate.com/erick/2009/12/21/we-are-no-longer-a-nation-of-laws-senate-sets-up-requirement-for-super-majority-to-ever-repeal-obamacare/

http://www.redstate.com/erick/2009/12/22/making-the-death-panels-permanent/

froster

” Now lefties in the Senate have taken up a parliamentary fight to silence conservative Senators Jim DeMint (R-SC), Tom Coburn (R-OK) and Rand Paul (R-KY). They also want to silence Republican Leader Mitch McConnell?s (R-KY) power to help his caucus to participate in the legislative process.”

Now, seriously when you have seen DeMint or Coburn go on the floor and really filibuster something?

What is the negative side of getting rid of secret holds? Of eliminating the silent filibuster? If the Republicans want to be the party of transparency, this seems very reasonable. What IS a leftist power grab is the way they are jamming this through – but it seems likely it’s only cause they can’t get enough Republicans to support it.

Locke

and Andy Stern.

JSobieski

and the Constitution is the Constitution. The argument that we should interpret it with a specific outcome in mind is not conservative.

Neither Van Jones nor Andy Stern were nominated for any position requiring Senate approval even though the D’s had 60 Senators.
JadedByPolitics

on the why of stopping this. I have seen a lot of well they will rue the day in two years once they do this crap and I immediately think look what they did in the last two years imagine what they will do in the next two if they change the rules as all Alinskyite’s do. The Democrats and their disgusting pathetic hateful selves have to be stopped on this rule change now and forever into the future.

froster

The filibuster is still there – the 60 vote requirement is still there. It will be harder for Reid to get there since he only has 53 members there.

So what exactly is going to get passed?

Brian Darling

Coburn and DeMint have been on the floor debating against earmarks, ObamaCare, the New START Treaty……
Why is it that your side will not agree that Majority Leader Harry Reid (D-NV) has blocked amendments using a parliamentary maneuver called “Filling the Amendment Tree” on 44 occasions since 2007? There are many “reforms” to strip power from the minority, yet no measures to restore powers to the back benchers. There is no provision forbidding Reid’s abusive actions in blocking all amendments to bills.
Another good rule might be to forbid the Leader from filing cloture on a bill when there has been no debate. Frequently the Leader files cloture before one word of debate has happened on a nominee or bill.

froster

What is there to not agree with? Either it did happen or it didn’t…

Harry Reid has been of the biggest obstructionist Majority Leaders in the History of Senate, refusing to allow amendments (both from ultra-liberals and any Republican) on the floor. (There, I said it.)

Explain how having open filibusters and taking away secret holds (and holds can be used by the majority as has been the case with Coburn pre-2007 and the guy from Vermont) strips power from the minority. There are no measures to restore power to the back bench (except for the bizarre amendment provision which is just a silly ploy to say that they are trying to reinstate minority amendments) in this resolution. I agree. But what’s in the bill does not further hurt the minority. (It should help them because if you can articulate your ideas well in a filibuster, you should get more support from the public)

And regarding DeMint and Coburn’s behavior in filibusters. I spoke too lightly there. Of course certain Republican Senators filibustered as they should, and they get credit. But a lot of the time, I turned on CSPAN2 and found quorum calls while we were waiting for a cloture vote to ripen.

froster

guaranteeing the Republicans the right to offer amendments, I don’t think the current package as a whole worsens Republicans rights on the floor. If you can explain to me otherwise, I’d gladly listen.
Brian Darling

The so called “secret holds” provision goes way to far. It forbids a member from objecting on behalf of another member. Even if that other member wants the hold to be public.
In other words, “Senator X can go to the floor and say, I object to S. 1234, because my friend Senator Y, who can’t make it to the floor right now, would object.” This is not a secret hold by any stretch, yet it is forbidden by the new rule.
This new rule empowers the leader to go to the floor and spring legislation on the Senate.

froster

Currently, a Senator may go to the floor and say “I object to this because there is an objection on this side” Notice, there is no release of the name.

Under the Udall resolution, the section states that another member can object but MUST say who is objecting.

In other words, the only change is, “I object to this because Senator X is objecting”

fortcollins

The Democrats’ proposed rule changes follow their 2006 and 2008 game plan: take control, exercise maximum power while it lasts, and believe that no subsequent body can undo their actions to reshape America into Amerika. They believe they are entitled to govern, and seem quite annoyed that any would disagree with that proposition.

The rule changes are not about Legislation. With the House in Republican hands, no Legislative initiatives by the Senate can unilaterally succeed, regardless of the nature of the majority or supermajority needed for Senate action.

The rule changes are entirely about seizing unfettered control of the Judicial Branch. Even though Republicans have not yet filibustered judicial nominees, removing that potential constitutes the casting off of all pretenses of restraint. Mr. Obama, with the perfunctory approval of the Democrat Duma, would have unrestrained power to fill judicial vacancies with nominees who no longer would need to offer lip service to constitutional constraints. This unfettered authority, exercised for but two years, would so reshape the Judicial Branch that the harm would last for more than a generation. Constitutional restraints on reducing judicial salaries, combined with lifetime appointments, would necessitate ratification of an explicitly retroactive amendment limiting judicial terms and providing for merit retention votes in order to mitigate the harm.

If the Senate undermines the filibuster, round two of the Tea Party v. the Demunistas may well be a constitutional convention.

froster

This resolution continues to allow a filibuster on nominations.
cwilson

The Republicans never have — and never WILL — filibuster executive or judicial nominations. (1) They don’t have the nads for it, and (2) there is a colorable argument — one that they made in 2005, in all sincerity and which many of them probably STILL agree with — that the Constitution’s ‘advise and consent’ wording doesn’t permit filibusters of nominations.

Whether they still agree with (2) or not, or whether they are as craven as the Dems and will change their position on nomination filibusters based solely on whose ox is gored, doesn’t really matter…because (1).

Spiral

for the very reason you mentioned.

Many Republican Senators support the 60 vote cloture requirement out of “respect for tradition” and “a belief in bi-partisanship.” They take a “can’t we all just get along” attitude and think, “It’s important that for legislation to pass the Senate, that it be “bi-partisan.”

Democrats said the same thing when they were in the minority and the GOP wanted to put Miguel Estrata on the Washington DC circuit court of appeals (The Democrats won that battle while in the minority!) The problem is this: Republicans actually believe what they are saying about “respect for tradition” but for the Democrats it’s just a rhetorical ploy to persuade Republicans not to use the power of being in the Senate majority (as they were in the middle of the last decade).

Consider that the filibuster did not prevent (a) the Clinton Tax Increase, which was passed on a tie Senate vote with VP Gore breaking the tie. Consider that the filibuster did not prevent Obama care from passing.

Consider that while the Democrats have had 60 or more US Senators, the GOP has never had 60 or more US Senators. Thus, the filibuster is great for the Democrats. When the GOP is in the majority, the Democrats can use it to block conservative legislation. When the Democrats are in the majority, they often have a large enough majority (60 or more) to pass what they want. And as you said, the Democrats, when in the minority, actually have the guts to use the filibuster. The Republicans don’t. Get rid of the filbuster.

Spiral

….. pulling a Kowalski here.

How many times have we heard cowardly Republican Senators say the following to grass roots conservatives?

We wanted to enact tort reform, allow drilling on the National Wildlife Reserve, confirm Miguel Estrata to the federal appeals court, put Fannie May and Freddie Mac on a tight leash, but we couldn’t because of Democrat obstructionism.

If we got rid of the filibuster, the GOP would no longer have this excuse to give to the conservative grass roots. When in the majority, they would have to show us (the grass roots conservatives) what they are really made of. They wouldn’t be able to the use the Democrat opposition, the people they defeated in the previous election, as an excuse for not governing by conservative principles. A healthy development, I think.

cwilson

Snakes will be snakes. Replace them with non-snakes. Replace…then Rinse and Repeat.

cwilson

and I think some of your specifics are a bit off. First, the nomination thing is separate, but we’ll take that first. You’re right, the R’s would probably benefit, on balance, if the nomination filibuster were eliminated — but if one of the posters above is correct, the Dem’s proposed rules leave THAT alone (e.g. the judicial filibuster would not be explicitly disallowed, and the D’s would use it, but the R’s never would).

On the separate issue concerning legislative filibusters, your examples are not correct: the Clinton Tax Increase passed because Republicans voted “for cloture but against the bill” — for which many of them were excoriated for their pathetic, duplicitous attempt at political cover, because everybody KNEW the cloture vote was the REAL vote. Further, the filibuster played a HUGE role in Obamacare. The Senate bill passed while the D’s still had 60 votes. Once Brown went to D.C., and the 41 held firm, Pelosi was forced to push the awful Senate bill thru the House exactly as it passed the Senate pre-Brown — because the nomination of conference committee members was filibustered, the consideration of amendments (more to the liking of liberal House members) was filibustered, consideration of the House bill in the Senate was filibustered…

So, the filibuster saved us from the horrifically abysmal and terrifying House version of ObamaCare, AND forced the lefties in the House to vote for something-without-single-payer. And don’t forget, the whole Deem-and-Pass thing that added to the disgust the American People felt for the way Pelosi was running the house, and arguable helped us win seats, was only considered because of the tight spot the Senate Filibuster put her in.

So…when we can filibuster (e.g. the Dems *don’t* have 60 leftists all marching in goose step) it helps us a lot. And since the rules were changed to require 3/5 of all Senators (e.g. 60) rather than 2/3 of all Senators present — which occured in the 70′s — they HAVEN’T had more than 60 “often” — twice, I think? And this latter term lasted only seven months, from Senator Smalley’s seating until Kennedy’s death. Sure, it’d be nice if the R’s ever came close (I think 55 is the most we’ve had) but…

And, the R’s *do* have the guts to use the legislative filibuster, just like the Dems. What they often don’t have is the discipline to keep the Maine Twins and other turncoats in line — but that often afflicts the Dems as well. We passed the Bush Tax Cuts in 2001 and 2003 didn’t we?

Spiral

You are incorrect that the GOP voted for Cloture on the 1993 Clinton tax increase.

No cloture, no filibuster was allowed.

Why? Because the 1971 budget act prohibits filibustering budget reconciliation.

That explains not only the 1993 tax increase under Clinton but also the 2001 and 2003 tax cuts under Bush.

And those examples also demonstrate that rule by simple majority in the US Senate works when it is allowed. Taxes go up when Democrats get elected. Taxes get cut when Republicans get elected. That’s because the filibuster is non-operable on budget reconciliation.

I would say this too. If this 60 vote requirement is so important, why has no one ever proposed to put this in the Constitution?. The Constitution does say that you need 2/3rds to override a veto, remove a President, pass a treaty, amend the US Constitution.

The framers of the Constitution had no intention of requiring super majorities in the Senate for all legislation. It’s a tradition, but not all traditions are worthy of respect. After all, this nation was founded on a break with tradition, the tradition of rule by Divine Right of Kings.

Junk the filiubster. Force US Senators to actually cast votes on issues. They do it in the US House. They do it in the state Senate of Indiana and the state Senate of just about every state in the country. The only place where they let people piddle away without having to cast a vote on important issues is the US Senate.

And we have the boondoggles of Fannie May and Freddie Mac to show for it. The GOP should gone nuclear in 2005, not only on federal appeals court nominees, but on putting Fannie and Freddie under lock and key as well.

The nation would be better off without the “bi-partisan” requirement of the filibuster.
cwilson

The budget is only non-filibusterable(?) during the reconciliation process — which occurs AFTER the budget resolution is passed under NORMAL rules where the filibuster DOES apply (the Dems neglected to do this last year). I seem to recall quite a LOT of arguing about “for cloture but against the bill” gobbledygook from Republicans in 1993 and 1994 while debating lots of bills, including the regular budget resolution(s).

If you want to argue about the filibuster itself, then follow the rules and get 67 votes to change those rules; then there’s no need to play games with “first legislative days” that last for three weeks, or “pay no attention to Rule V behind the curtain”. I think killing the filibuster is a PROFOUNDLY un-conservative thing to do, but you’re welcome to try to get 2/3 of the Senate to go for it. But the current proposal, in violation of the existing rules, is BS.

Also, many of those Framers of the Constitution were IN the first Senate, or still very public figures, when it adopted its rules — and allowed for unlimited debate without ANY mechanism for cloture. One guy could talk forever and there was no way — other than biological imperatives — for the rest of the Senate to move forward. The Founders might not have put the filibuster in the Constitution — but they and their contemporaries put them in the Senate rulebook the first time an elected Senate met.
Spiral

My opinion is that the filibuster should be junked by any means. I do not care whether the filibuster is junked in accordance with the standing rules of the US Senate or by creating a new Senate precedent.

The idea that a Senate in the 1950s can bind all Senates of the future is an idea that I do not accept.

And in 1975 a simple majority of the Senate used the constitutional option and ignored Rule 5. Later, 2/3rds of the Senate voted to ratify the decision, making it look like Rule 5 had not really been ignored. But anyone who has studied the history of Senate rules knows that the “Byrd option” has been used many times.

As for whether junking the filibuster is “conservative” or “un-conservative.”

It is neither conservative nor un-conservative. Junking the filibuster is just a good idea, one that should have been implemented back in the early 1800s.

In the 1940s when some senators were trying to pass an anti-lynching law to protect Blacks from being murdered in the South, the proposed anti-lynching law was filibustered.

The filiubuster has not improved the quality of legislation in the United States. Quite the contrary. The filibuster, the requirement of (currently) 60 votes in the Senate, has made it so almost anything that passes Congress has to be “bi-partisan.” This means it has to be approved by the likes of Reid, Durbin and Schumer.

You can’t rescue the United States from a Greek destiny with a rule like that.

I hope the GOP wins the White House in 2012 and wins the US Senate in 2012. I also hope that their first act is to junk the filibuster so that they won’t have to consult the Democrat Senate minority when they decide to rescue the US from the fate of the Greeks.
Spiral

(when, as I expect and hope, the GOP takes the White House and the Senate in the 2012 elections) when the Democrats filibuster the Republican President’s nominee to the US Supreme Court to replace Antonin Scalia.
cwilson

I did not, do not, and will not, support filibusters of judicial (or executive) nominations. Kill ‘em in committee if you can; blue slip them if you must — those practices go back to the 1790′s. But no filibusters — even if Teh Won appoints someone completely obnoxious to SCOTUS. Elections have consequence; win more. And, if the Dems pull out the judicial filibuster for Scalia’s replacement, I hope this time the R’s will have the nads, with no Gang of 14, to use the VERY DIFFERENT procedure outlined back in 2005 to ensure that the Dems, ALSO, are precluded from continuing the practice.

However, I do, and will, support the right of the minority to filibuster legislation — but you can bet I’ll *complain* about it when the Dems+the Maine Twins and the Silky Pony use it to block us. It’s their RIGHT to do so, even if exercising that right hurts the conservative movement and the country.
Spiral

Are you saying that the Senate rule regarding the 60 vote cloture requirement on judicial nominations should be changed?

Good. Then we agree.

Here’s a little thought experiment. Let’s say in the 2012 elections the GOP gains 8 senate seats and obtains a 55 to 45 majority in the US Senate. Let’s also say that the GOP presidential nominee in 2012 defeats Obama and becomes president.

Antonin Scalia, being in his 70s, announces his retirement from the US Supreme Court. The GOP president nominates someone to fill the position who is similar in judicial philosophy to Scalia. Soon after, 41 of the 45 Senate Democrats announce that they will support a filiubuster of the judicial nominee due to his “extreme right-wing views on abortion, the environment, discrimination and business regulation.”

What should the GOP Senate majority do in such a circumstance? Also, answer the same question with respect to judicial nominations to the federal court of appeals, the second most powerful court.

If your answer is “we must accept the fact that 41 Senators can defeat a judicial nomination” I say you are wrong.
cwilson

See my comment above, Somebody is right, and somebody is wrong.
http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

to do whatever they like but that if they do violate their own existing rules requiring super majority to change rules that they should be called out on it for political purposes.

That said, please see my arguments for getting rid of the filibuster and for the better practice of majority rule on rules changes here:

http://www.redstate.com/gamecock/2011/01/08/conservatives-should-welcome-end-to-filibusters/
JSobieski

If rules about amendments of rules can be ignored in amending the rules, then why can’t the Constitution itself be amended outside of the process for amending the Constitution.

Unless the rules about an ongoing body (Rule V) and 2/3 for rule amendments (Rule XXII) are unconstitutional, then those rules are BINDING on the Senate. If the rules are binding on the Senate, then they can’t be amended outside of Rule XXII.

I.e. The Constitution may allow them to do what they want, but the Constitution does provide them a basis for disregarding Senate Rules.

If the Senate isn’t bound by Senate Rules (with the exception of Constitutional violations), then we are saying the Senate is above the rule of law.

Senate Rules are as binding on the Senate as the Rules of Civil Procedure and the Rules of Evidence are on a court.

diesel53

Because it’s the best way to control POWER, it’s their Holy Grayall, OBAMACARE, the foothold, set forth, to change America.. The Big O doesn’t give two bits about the Constitution, and has spent trillions to make it disappear.. once the rules have been adopted by the new Senate they apply to all future votes, including any votes to change the rules. So you better think twice about changing anything, and start saying NO TO EVERYTHING…
http://aposematic.wordpress.com aposematic

Beware the evil of the Democrats, its what they do. As in Massachusetts, where they changed the law to advantage them and when the tables turned they passed a law changing that law back to give advantage back in their favor again. The Democrats get rid of the filibuster, for two years of unbridled control over the Senate, and then in the 2012 lame duck, after loosing control over the Senate and without a filibuster to stop them, they become Angles claiming how not having a filibuster didn’t work and put the filibuster back in when the Republicans win Senate control. The Democrat corruption and evil continues unabated and unchallenged by the wimpy yellow striped backs within the liberal big government Republican leadership. But, even worse for America, the Marxist controlled Media champions all positions and evil the Democrats can puke out by singing the Democrats praises no matter what and no matter how evil the positions the Democrats take.
southernpatriots

Reid warns Boehner not to take us Obamacare reform. Boehner responds with clarity and strength. Boehner may well have the wit and tenacity as well as the experience to take on Reid and his minions. We will see. Boehner should warn Reid that such a drastic change to Senate rules will result in huge repercussions in the House. Will of us remember what the Dems have done and are now trying to do 2 years from now? Will we be determined and active enough to cut down additional Dems and put them out of office and put in conservative Senators? We hope so.
rivahmitch

You posed the question “If an arsonist were trying to burn down your house, do you A) make it easier by just handing him the gasoline, or B) do everything in your power to extinguish the pyromaniac?s flame?”

Neither of those options works for me. Personally, I’d first kill the arsonist, then extinguish any flames he’d started. Merely “fighting the fires” your enemy starts gives him control of both the situation and your response to it. That’s a sure recipe for failure.
romeg

and the scope of the R’s (your designation for the Republicans) plan was very narrow and specific to ending the filibuster of judicial nominees. I get that.

My point is that when the R’s wished to end an abuse of the process by the Donks it was portrayed as “The Nuclear Option”, a moniker embraced, more or less willingly, by the R’s. Now the Donks are attempting to circumvent court rulings as well as decades of Senate tradition (essential to the orderly functioning of the Senate) because they want to protect what THEY perceive as THEIR exclusive domain, they attempt to portray it as, somehow, Constitutional and their all too willing corhort, the national media, go right along with their nefarious scheme.

Perhaps we should refer to theirs as the Thermonuclear Option do differentiate more clearly the extreme radical nature of what they propose to do.

cwilson

or intellectual honesty from Democrats, especially when it comes to labeling (“framing the issue”).

Spiral

Some conservatives think that the filibuster (and by that they usually mean the current 60 supermajority vote requirement to end debate on a piece of Senate business) is an important check on majority rule and necessary to restrain the advance of big, bossy government.

There are several few big problems with this argument.

Think back to the New Deal era, when the limits of the federal government were blown open, paving the way for today’s big, bloated, sprawling welfare state. Did the Senate filibuster rule prevent Social Security from being enacted? How about farm subsidies? How about forced unionization?

The reality is that the Senate filibuster rule did not prevent any of these socialist ideas from becoming law. The same could be said for the enactment of Medicare, Medicaid, food stamps, Fannie May, Freddie Mac, Obama-care, and a whole host of other big government boondoggles.

It is true that currently, the Democrats have a 53 to 47 seat majority in the Senate and that they could be the short term beneficiaries of a weakening of (or elimination of) the Senate filibuster rule. However, conservatives should be able to look past the 24 hour news cycle and even past the 2 year election cycle to see how the filibuster has disadvantaged conservative causes over the years.

I provided a long list of socialist legislation that passed Congress and became law despite the Senate filibuster rule. Let’s also remember that when the GOP controlled the US Senate, the US House and the White House in the last decade, they tried repeatedly to pass tort reform. But the Democrats, beholden to the trail lawyers, blocked it with a filibuster. The GOP wanted to restrain Fannie May and Freddie Mac, the two GSEs that have cost US taxpayers hundreds of billions of dollars and have severely damaged the US economy. But the Democrats made it clear that they would filibuster any attempt of the GOP to do this. Miguel Estrata was prevented from being confirmed to the DC circuit court of appeals by the Democrats’ use of the filibuster rule in the 2003-2006 time period, when the GOP had 51 to 55 senate seats.

Let’s face facts and admit that, on balance, the filibuster rule is helpful to the socialist agenda, not the conservative agenda. Admit that upfront and then we can decide how conservatives can go about getting rid of that rule so that the next time the GOP gains the majority, the Democrats will not be able to block the GOP agenda.

JSobieski

The public option would have been included in Obamacare in 2009. Hillarycare may very well have passed in 1994.

The fillibuster may hamper efforts to roll some bad programs back,but it does serve as an obstacle towards preventing new bad programs from being implemented.

Maybe more importantly, there is no realistic way to change the rule on fillibusters for legislation (nominees is a different story)
cwilson

The REASON the filibuster didn’t stop it was because the Dems had a HUGE Senate majority (2/3 was 64 votes):

Total D R Other
73rd 1933?1935 96 59 36 1
74th 1935?1937 96 69 25 2
75th 1937?1939 96 75 17 4
76th 1939?1941 96 69 23 4
77th 1941?1943 96 66 28

Note that in every FDR congress except the 73rd, the D’s had MORE than the 2/3 majority required at the time. Plus, the R’s were jam packed full of what were once called Rockefeller Republicans — that is, liberals. There were a few “anti-new-deal” democrats, but many more “pro-new-deal” republicans; the end result, given the less ideologically united parties, was that the pro-new-deal faction had more than the 64 votes necessary for cloture, even in 1933-34.

So, just because the New Deal Senate(s) had enough pro-new-deal votes to cut off debate, doesn’t mean the filibuster, in other times, wasn’t helpful to stop unwise legislation. Saying that, well, once or twice even 2/3 was too low a barrier, does not automatically mean that lowering that barrier to 1/2 is a wiser choice, or more helpful.

Saying that “on balance, the filibuster rule is helpful to the socialist agenda, not the conservative agenda” is your opinion, not a fact — so you can’t ask somebody to “admit” it. I think many people — whose political memory extends back before the Reagan years and the conservative ascendancy — will disagree with your opinion.

And please stop, I am BEGGING you, from bringing up judicial nominations — I’ve told you twice it is a separate issue, as have others in this thread. If you keep beating that false drum, I’ll have to start wondering why: are you that unsure of your argument when restricted to purely legislative grounds? (Plus, your history of tort reform and the GSEs is a bit…more abstract than reality. We had a lot of defectors on the R side who were perfectly happy to side with the Ds on those issues…it’s likely that, in the absence of the filibuster, we still would not have been able to muster 50%+1 — so blaming the failure to pass those bills on the filibuster ignores the complete story).

Spiral

The reason why I brought up judicial nominations is very simple.

The Republicans had a 51 to 49 majority from 2003 to 2004 and a 55 to 45 majority from 2005 to 2006. But the GOP let the Democrats kill judicial nominations like that of Miguel Estrata out of “respect for tradition.”

Sorry. But you can’t turn the country around if every nominee for the federal court of appeals has to be pre-approved by Durbin, Reid, Schumer and Boxer.

Your response regarding the huge majorities that the Democrats had in the 1930s just makes my point. The filibuster does not prevent bad legislation from being enacted. However the filibuster does prevent good legislation from being repealed. The problem with the filibuster is a lack of transparency. The Senators can kill legislation and nominations without even casting an up or down, recorded, vote on the issue. This makes it easy for them to avoid responsibility for what they are doing (or not doing).

Conservatives should not give the Democrat minority (when one appears in 2013) a veto power over either legislation or nominations.

When the GOP wins the White House, the Senate and the House in 2012 and gets sworn into office in 2013, the GOP should give the Democrat minority nothing. No opportunities to block conservative agenda items.

Otherwise you can expect grass roots conservatives will realize that the GOP doesn’t really care about the conservative agenda. It only cares about holding hands with Democrats in a bi-partisan manner and “respect for tradition” even when that tradition is engaging in endless “debates” while the country drowns in debt.

cwilson

You are missing two things. First, when the electorate gives a super-majority to ideologically united bad guys, bad things will happen regardless of any procedural blocks. Conversely, when the electorate gives a super-majority to ideologically united good guys, good things will happen. When neither set has a super-majority, politics happens.

It is a tragedy (but not unexpected if you read Augustine) that in our history, the former has happened several times, but the latter has not since the founding. This does not mean it is wise to make it easier for the bad guys to do bad things by requiring them only to have a simple majority — because history shows that the bad guys, in addition to having been given a super-majority several times while the good guys never held one, ALSO gets a simple majority more often than the good guys. So, the lack of a filibuster means they would have MORE historical chances to do bad things,

Now, let’s talk about the second thing you are missing: these guys play for KEEPS. For seven months, they had the barest number of people necessary to steamroll — 60 — and did have to work hard and make compromises to keep all of them on board. Now they have 53+Biden, which means if you drop the filibuster they have three free defectors. Since most of the defeated Senators were blue dogs, their caucus is (a) more ideologically united leftward, and (b) more free to go leftward than in the last Congress. That’s not good.

My fear is that by giving them even more power than they had LAST term, with a more ideologically united caucus, they will — if not in this Congress than in a future one in which they hold a simple majority in both houses — pass certain STRUCTURAL changes that will PERMANENTLY eliminate the “Republican Threat”.

Forced unionization. Amnesty for illegals. Voting rights for felons. Entrench health care and build its constituency (our only hope of repealing ObamaCare is due to the fact that most of it doesn’t go into effect until 2014. Once it has a constituency, it becomes Social Security…and EVERY election in the future will be fought, like in England, on ground more favorable to leftists. The Tories run on: “We can run the leftwing state more efficiently than Labour”…)

Do you REALLY think Republicans will (or should) act in a similar structural manner? Say… birthright citizenship amendments, Federal Marriage Amendment, Federal Life Amendment, repealing the 16th amendment and passing a flat or Fair Tax, repealing the 17th amendment, restructuring the Article III Court system….

Even if they only needed 50? Because THAT’s the sort of thing we’d need to do to put the Dems on a (practically) permanent minority status. (I could go along with some of these, but I do NOT think Republican politicians will ever do them. Ever. Even if they helped to entrench R majorities at the expense of D)

The D’s job, in reverse, is much easier — and much more likely to actually come to pass, especially in the absence of a filibuster. You are playing with long-term fire, and acting like it is a short-term game.

JSobieski

The US Constitution is just a procedural cooling off filter to temper the will of a super-majority. No legal or political framework in a self-governing society is immune for long to the whims of a sustained super-majority.

For example, a super-majority can repeal the Bill of Rights in its entirety if they can sustain super-majority support over a sufficiently long period of time. The only defense against that is the citizenry of the US. An amendment to the Constitution cannot itself be unconstitutional.

A consitutional republic is still self-government. Self-government means that the will of the super-majority will prevail if it can be sustained.

Conservative activism is harder to sustain because conservatives on the whole, are interested in building their lives—not constantly petitioning government for handouts.

Thus history shows few examples of conservative super-majorities, and many examples of liberal super-majorities. Particularly if one looks outside the US.
http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

cwilson, I think that ending the filibuster helps conservatives and America over the long run

http://www.redstate.com/gamecock/2011/01/08/conservatives-should-welcome-end-to-filibusters/
JSobieski

conservatives do not benefit since the precedent of arbitrary lawlessness will outweigh a temporary tactical advantage.

I am not so much a proponent of the fillibuster or an oppoinent—I just want the Senate Rules to mean something. My reading of Section V and XXII is that removal of the fillibuster would require a 2/3 vote.

I we can’t count on the Senate following its own rules, society loses. Its bad enough to gradually lose rule of law through regulatory exceptionalism (see Obamacare waivers), but if the Senate just chucks its rules without a legitimate basis—its just another step towards the loss of America.
Spiral

All Senate rules can be changed with a simple majority vote. That is what the Constitution says.

The Constitution does not say that a super-majority is required to enact or change Senate or House rules.

In 1975 a simple majority of the Senate used the Constitutional Option to change the Cloture requirement from two-thirds of all Senators present and voting to three-fifths of all Senators chosen and sworn.

If the Senators of 1975 can do it, so can the Senators of 2013. If a minority of Senators don’t like it: tough.

Those who prefer a super-majority requirement should attempt to amend the US Constitution accordingly. In the absence of such a super-majority requirement in the US Constitution, simple majority rule is the way to do business.

I look forward to the demise of the filibuster. No more liberal obstructionism against the conservative agenda. No more!
JSobieski

There is no prohibition in the Constitution that prohibits a 2/3 requirement for cloiture on a rules change. The Constitution precludes unconstitutional rules, but otherwise provides for the Senate to create its own rules.

The Constitution is silent about most things. In terms of Senate Rules, the Constitution says little.

We don’t know if Rule V existed in 1975 or not. It is also possible that the 1975 changes violated the Constitution.
http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

Very slick how you re-phrased the question in the negative as to what the Constitution “allows”, ie 2/3 rule for rule changes.

But the blanket grant of power to make their rules includes the power to change their rules as they see fit, and under the political question doctrine, you know that no court would dare try and overturn a rules change by majority vote.

Therefore, any suggestion that Republicans could successfully make a constitutional argument to preserve the filibuster rule or the 2/3 rules change rule, is specious.
JSobieski

The Founders did not agree with the premise that if the SCt won’t stop it, it is OK. I do not embrace the algorithm of anything not stopped by the Court is Constitutional. I thought Social Security was unconstitutional in your view? How do you reconcile these various positions?

There is nothing “slick” about what I said. The question in determining the constitutionality of a particular action is not whether the constitution requires something, it is whether the constitution permits something.

Scalia and Thomas have made this point repeatedly, and I know you understand and agree with it in general.

Statutes can be stupid, and still be constitutional. States can be good ideas, and still be unconstitutional.

Constitutionality is always a question of what is permitted, not what is required.

Where Justice Scalia to give a determination on this issue, he would ask the question “Does the Constitution prohibit a Senate super-majority requirement on rule changes?”

The answer is it doesn’t.
Spiral

The Constitution gives both the House and the Senate the power to establish their rules.

This grant of power is a grant of a simple majority of both the House and the Senate.

The Senate of the 1950s (I think 1959) basically attempted to bind future Senates without going to the trouble of amending the US Constitution.

Super-majority requirements must be explicitly stated in the Constitution or else the Constitution is, by default, granting power to a simple majority of the Senate and/or the House.

All of the powers granted by the Constitution to the Senate and/or the House are granted to a simple majority of those bodies.

Thus, even Rule 5 of the Standing Rules of the Senate, the Rule that requires a two-thirds vote of the Senate to end debate on rule changes, can itself be changed by a simple majority vote. That is what happened in 1975.

Again. Those who wish it were otherwise must go to the trouble of amending the US Constitution and adding another super-majority requirement, in addition to the other super-majority requirements explicitly stated in the US Constitution (examples: override a presidential veto, ratify a treaty, amend the US Constitution).
JSobieski

Being free to set your own rules means that you are free to set your own rules. .

If the Senate wants to impose a rule that requires a 2/3 vote for tax increases, in my view, that is permissible. In your view, it isn’t given that the majority at the time can simply ignore it.

In terms of what happened in 1975, if the rules are as they are now, I would conclude that the 1975 change was invalid. One can’t bootstrap an invalid action to justify an incorrect interpretation.

So the question is simply does the Senate’s Constitutional discretion to create rules PERMIT (not require) the adoption of super-majority requirements with respect to Article I powers that are binding on the Senate (i.e. can’t be undone by a mere majority if the rule says otherwise)?

We disagree on that answer.
JSobieski

“Therefore, any suggestion that Republicans could successfully make a constitutional argument to preserve the filibuster rule or the 2/3 rules change rule, is specious.”

That isn’t the argument. The Constitution neither requires nor prohibits a 2/3 requirement for Senate rule changes. You are responding to a bad straw man argument.

The argument is that the Constitution does not render Rules V and XXII unenforceable. Rules V and XXII provide for a super-majority requirement for rules changes.

GC, you are better than this.
Spiral

Yes. But since the US Constitution allows both the Senate and the House to establish their rules and since the US Constitution does not explicitly state that a super-majority is required for the establishment of Senate and House rules, even Rule 5, the rule you are referring to, can be changed with a simple majority vote.

That is what happened in 1975. That is what happened when Robert Byrd used “the Byrd option” on several occasions from 1977 to 1987.

A Senate Rule like Rule 5 can not take away the Constitutional Right of the Senate to establish it’s rules.

Those who would like there to be a super-majority requirement for the establishment or change of Senate rules must pass a Constitutional Amendment first. Absent a Constitutional Amendment, a simple majority can change Senate rules.
JSobieski

This defeats the entire concept of rules as all rules are rendered superfluous.

All Senate Rules are superfluous since any issue that would be decided by a rule is really just decided by majority vote.

You are arguing for a rule-less Senate.

In other words, except for things explicitly addressed by the Constitution (treaties, amendments, veto-overrides), the Senate is never bound by any rules.

Why even have rules if the rules never matter?
Spiral

You are arguing for a rule-less Senate.

In other words, except for things explicitly addressed by the Constitution (treaties, amendments, veto-overrides), the Senate is never bound by any rules.

No. I am saying that a simple majority of the US House has the authority, granted in the US Constitution, to make rules for the US House.

I am also saying that a simple majority of the US Senate has the authority, granted by the US Constitution, to make rules for the US Senate.

If we want a super-majority requirement for changes in either Senate or House rules, we must amend the US Constitution.
JSobieski

“All Senate rules can be changed with a simple majority vote. That is what the Constitution says.”

What section of the Article I says this?

“The Constitution does not say that a super-majority is required to enact or change Senate or House rules.”

The Constituion does not prevent a Senate Rule from putting super-majority requirements on Article I powers.

The Constitution does not REQUIRE an income tax, but as amended, it PERMITS it.

The Constitution does not REQUIRE the government to impose tariffs, but the Constitution does PERMIT tariffs.

The Constitution does not REQUIRE a super-majority for Senate Rule changes, but it PERMITS the Senate to make rules to so bind the Senate.

Whether removal of the fillbuster is good or bad for conservatives is another question altogether from the question of whether the Senate rules requiring a 2/3 vote are in fact Constitutional and binding.
http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

here

http://www.redstate.com/gamecock/2011/01/08/conservatives-should-welcome-end-to-filibusters/
Spiral

Spiral wrote: ?All Senate rules can be changed with a simple majority vote. That is what the Constitution says.?

Your response was: What section of the Article I says this?

On the question of whether the Senate can change its rules by a simple majority vote or whether a super-majority vote is required, one must ask the question, “What if the Constitution does not say one way or the other?”

The obvious answer is that when the Constitution grants powers to the Senate and/or the House, the Constitution grants power to a simple majority of those bodies. That is a common sense reading of the Constitution.

Another question might be this: Can a Senate impair the ability of a future Senate to establish its own rules?

In 1959 the Senate enacted Rule 5, which requires a two-thirds vote to end debate on Senate rule changes and binds all future Senates to that rule.

The 1959 Senate did not have the authority to bind future Senates with a Senate rule, To bind a future Senate they would have had to enacted an Amendment to the US Constitution. This would, of course, require a two-thirds vote of both the US House and the US Senate and three-fourths of the state legislatures.

Not able to do that, the 1959 Senate did an end run around the requirements for amending the US Constitution and attempted a short-cut. But this short-cut need not be respected by future Senates.

If a Senate were to enact a rule stating that to end debate on legislation there must first be a unanimous agreement among all US Senators, future Senates might find this rule impractical and future Senates would have the Constitutional Right to change this Rule or delete this Rule with a simple majority vote of the Senate.

That is a common sense understanding of when super-majorities are required and when simple majorities are required.
Spiral

The Constitution does guard against mob rule in several ways.

There are two chambers of Congress, a US Senate and a US House. There is the veto power of the President. There is a judiciary. There are three branches of government.

Also, a super-majority vote (two-thirds vote) of Congress is required to over-ride a Presidential veto, amend the US Constitution, ratify a treaty.

This is all stated in the US Constitution.

But the Constitution has no super-majority requirement for the enactment, change or deletion of rules of the US House or the US Senate. Nor does the Constitution contain any super-majority requirement for the passage of legislation or the confirmation of judges to the federal courts.

A mistake made by Vice President Aaron Burr in the early 1800s does not an Amendment to the US Constitution make.

Majority rule is the default. Majority rule holds in all legislative chambers. In the Indiana State Senate. In the California State Senate. In the Kansas State Senate.

Allowing liberals to block conservative agenda items based on this misguided worship of Rule XXII and Rule V of the Standing Rules of the Senate is terribly misguided. This is especially true given the damage the liberals have been doing to this country for the past 80 years.

And the liberals have not allowed the filibuster to stop them from enacting their Socialist agenda: Social Security, Medicare, Obama-care. But for some reason many conservatives think it is “sporting” to allow the filibuster to stop the conservative agenda in its tracks.

This conservative worhsip of Rule XXII and Rule V should be replaced by an enthusiasm for enacting the conservative agenda, with simple majority votes in both the US House and the US Senate.

http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

http://www.redstate.com/gamecock/2011/01/08/conservatives-should-welcome-end-to-filibusters/

http://www.gmsplace.com/ civil_truth

And in the long-term, you will have set the stage for unfettered majority rule. And such unrestrained power leads to one-party states as the rules are rigged against the opposition. This has been the pattern for instituting every non-military leftist dictatorship.

http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

and didn’t need a filibuster requirement to create a constitutional republic.

Under our system, it takes super-majorities to amend the Constitution and to do many other things. Moreover, the electoral system and the election of two senators from every state, regardless of size also attends to fettering! As do MANY other provisions of the the Constitution fetter raw majority/pure democracy rule.

So that argument fails, utterly!

smile

http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

cwilson

And I’ll make a further prediction. If you and the Democrats are successful, we will see permanent change in both the electorate itself (who is allowed to vote) and the ground on which issues are debated, shift so far to the left that the Republicans (or whatever replaces them) will never have the opportunity to test your theories. I think you’re both walking blindfolded into the best way to ensure that the 2010 Tea Party resurgence is killed dead — not in the next two years, but soon: 2012? 2014? — and with it, any hope of Constitutional governance.

As far as continuing this discussion on the other thread, I’m going to have to bow out. Each time I make a point, the “discussion” continues as if I hadn’t actually said a word, so why bother…Spiral is especially good at simply ignoring statements he disagrees with — or deliberately misinterpreting the arguments made (see the arg. with JSob about whether a “rule” is actually a “rule” if it can be changed in violation of other so-called “rules”), and repeating his same (contested) arguments over and over as if they were conceded, and assuming his own opinions are actually fact — in separate threads or subthreads, and sometimes in the SAME subthread. And now, in other diaries.

I was disgusted to see him advance EXACTLY the same argument(s) he is making in this thread, in the middle of a this debate, over in that thread, without ANY reference to the concept that “Oh yeah, well I’m actually in the middle of a separate debate about this precise point over there…”

Given that, it’s not worth my effort to continue this “debate.” You guys will just write yet another diary, and restart the “debate” from square one in the new forum; it’s like a great big Reset button. I’m not going to chase you guys around the site repeating the same arguments over and over. If I wanted that, I’d watch Hannity.

My disappointment with the quality and style of debate — no different than a cable news talking head show, where each side yells its talking points with its hands over its ears — over the last few weeks have made me wonder if Aaron Gardner has the right idea.

http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

that I will respond directly to your points and will only repeat previously made arguments, when they are directly applicable to the comment to which I am replying, as I always try to do.

I think this issue deserves a debate. There is no doubt that the filibuster has done good many times and that it may be best overall, but I haven’t yet been convinced. I admit that i could be. I haven’t ever expressed this opinion before as I hadn’t really studied it for its utility. I had always accepted it a s a given and evaluated it on tactics or constitutionality and legally.

But I am on Day 7 in really looking at this, so I welcome your always well-made arguments.

Come over here:

http://www.redstate.com/gamecock/2011/01/08/conservatives-should-welcome-end-to-filibusters/

RS

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