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by Michael E. Hammond, former General Counsel Senate Steering Committee 1978-89.
Senate Democrats in the 111th Congress got a lot of mileage from procedural cheating (fiscal and legislative) –- and from extorting concessions from Republicans by threatening to cheat.
For instance, the accounting tricks used to pass ObamaCare would have, if employed by a private business, put the company’s CEO in prison for the rest of his life:
So what do you think Senate Democrats are doing during the first twenty days of the new Congress?
Answer: They’re using a cheat scheme to try to make it even easier for Reid to cram even more legislation down the throats of the American people.
For those who have spent the last year campaigning for candidates who would change things in Washington, these efforts to reverse those elections through a procedural cheat scheme should provoke an outrage which makes November 2 pale by comparison.
But first, some background:
WHAT DO I MEAN BY “CHEAT SCHEME”?
Democrats are proposing to change the written rules of the Senate by a procedural cheat scheme called the “constitutional option.” What this means is that the Senate, by a simple 50-vote margin (plus Biden) would vote to change the Senate’s written rules to take away the rights of Republicans –- even though those rules require a two-thirds vote in order to change them.
If they go ahead -– and if they succeed -– the written rules of the Senate will become meaningless in any circumstance where they would make a major difference. The will of the Democrat majority will become the only thing that matters; the Senate will become “the House on steroids.”
But, you ask, how can the Senate just ignore its rules?
Democrats argue in broad terms that a legislative body cannot be bound by the actions of a previous legislative body –- a notion that, in theory, would seem to leave the Senate without any rules except those adopted by 50 senators (and Biden). At the very least, this theory would allow the Senate to legally change its rules in any way at any time by majority vote.
In an effort to pretend that this precedent is less far-reaching than it is, it has now become a mantra of the Left that it’s possible to change the Senate rules on the first (legislative) day of the session by majority vote.
The problem is that there is no precedent for any of this, and lots of precedent against it. The entire canon of federal law is not reenacted every two years. The Senate’s Standing Rules are not biennially reenacted. Statutory rules like the Congressional Budget Act are not reenacted. And, furthermore, if it is unconstitutional for one Congress to impede the rules-changing powers of the next, what about the rules changes in ObamaCare which specifically make it out of order to consider changes to them? Does this make ObamaCare unconstitutional?
Indeed, a Senate rule adopted in 1959 declares that the Senate is a “continuing body” and thereby makes it illegal for the Senate, at the beginning of a new Congress, to force a rules change, other than with the two-thirds necessary to break a rules-related filibuster.
And, although both parties have tried, from time to time (e.g., in 1975 and 2005), through non-binding “advisory opinions,” to wrest concessions from the other by threatening to ignore the Senate’s written rules, they have always pulled back from the precipice before actually jumping over the cliff.
If, however, the gun is ever actually fired, it will never again be possible to put the bullet back.
WHAT DO I MEAN BY “CRAM-DOWN” RULES CHANGES
The short answer is that these changes are all intended to achieve one objective: to allow repudiated Democrats to cram even more Big Government legislation down the throats of the American people.
Proposals currently on the table range from abolishing the 60-vote filibuster (Harkin) to abolishing the “hold letter” (Merkley-Udall-McCaskill).
But this is just the beginning.
If Democrats can ignore the Senate rules to abolish the “hold letter,” they won’t hesitate to do the same when the 60-vote requirement is blocking their pivotal “cap-and-trade” legislation or their amnesty bill.
Having said this, some of the most aggressive efforts to curtail the rights of the minority which have already been put forward involve:
ABOLISHING THE “SECRET” HOLD LETTER: There is nothing either binding or talismanic about a “hold letter.” I have written hundreds –- maybe thousands of them. Given that the Senate rules can supposedly be waived most easily through the “unanimous consent” of all 100 senators, a “hold letter” is nothing more than a request that whoever is on the floor not allow a “unanimous consent” agreement to be snuck through without notifying the writer. Ironically, if every unanimous consent request has to be “hotlined” (cleared by phone with all Republican offices), the result may actually be more “gridlock” than currently exists. Alternatively, we could simply see Reid sneaking through a lot more “unanimous” consent agreements on very controversial legislation, with Republicans unable to do anything about it because the junior senator monitoring the floor can’t comply with the notice requirements.
ABOLISHING THE FILIBUSTER OF THE MOTION TO PROCEED:Because Reid cannot buy votes by adopting amendments until the motion to proceed is adopted, filibustering the motion to proceed allows Republicans to fight legislation before the vote-buying can begin. If we had not been able to filibuster the motion to proceed, the effort to pass ObamaCare would have been much easier.
REQUIRING A “STAND-UP” FILIBUSTER: It is a lie to suggest that the Majority Leader cannot currently force the minority to engage in a stand-up “Mr.-Smith-goes-to-Washington” talk-a-thon filibuster. In 1982,under rules more lenient than those in effect today, Majority Leader Howard Baker forced Jesse Helms and John East to filibuster a 4-cent-a-gallon gas tax increase all night by establishing the precedent that the Chair could “eyeball” the presence of a quorum without actually calling the roll. If filibusters are no longer talk-a-thons, it’s because Majority Leaders choose not to keep the Senate in session all night, in part because of the failing health of the Senate’s elderly members. The real game here is to slash the 30 hours of post-cloture debate if the next speaker does not stand up immediately.
ELIMINATING THE 60-VOTE REQUIREMENT FOR A FILIBUSTER. The problems with this are pretty well self-explanatory.
CAN’T WE JUST RELY ON THE HOUSE TO SAVE US FROM LAX SENATE RULES?
First, we can’t be sure of the political landscape in 2013.
Second, those of us who witnessed the passage of the START Treaty, Don’t-Ask-Don’t-Tell Repeal, and the $4 billion 9/11 entitlement are aware of Obama’s diabolical ability to pick off stupid Republicans –- even on issues which fundamentally destroy their party.
Third, it is much more likely that Reid -– who is ruthless about passing his agenda –- would use a continuing resolution to enact amnesty than it is that Boehner would use it to repeal ObamaCare.
THE BOTTOM LINE
So, what do you care about?
Amnesty for illegal aliens?
The Bush tax cuts?
Your issue may be won or lost on January 25.
So don’t sit out the fight over the Senate rules -– only to suddenly wake up when the rewritten rules are used to go after you. Because, by that time, it will be too late.