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What Time Is It? It’s Time To Cheat

By: Michael Hammond (Diary)  |  January 10th, 2011 at 10:00 AM  | 

RESIZE: AAA

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:

  • Majority Leader Harry Reid used bribes, extortion, and corruption to buy the votes he needed to pass vast swathes of liberal legislation, including ObamaCare.
  • Reid used a procedural tactic called an “amendment tree” to virtually eliminate Republicans’ ability to offer amendments of interest to them for an entire year.
  • Reid scheduled as many as four or five bills simultaneously for no other reason than to buy off votes for his upcoming election -– also blocking all amendments to these bills.
  • Reid wallowed in fiscal fraud, claiming that ObamaCare would reduce the deficit -– and, at the same time, sneaking $250 billion in costs onto other legislation.
  • Reid used this procedural sleaze to cram more Big Government legislation down the throats of the
    American people than in any Congress in the last 40 years.

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?

No.

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?

Cap-and-trade?

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.

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  • Spiral

    I have some disagreements with this post.

    The Framers of the US Constitution feared rule by the mob. Thus, they included in the US Constitution many checks and balances, Some of these checks and balances are:

    The division of government into 3 branches (Legislative, Executive, Judicial)

    The division of the legislative branch into 2 legislative chambers (US House of Representatives and US Senate)

    The staggering of elective terms (4 years for the President, 2 years for US House, 6 years for US Senate)

    The division of the Senate into 3 distinct electoral classes (one third elected every 2 years)

    The two-thirds requirement for the overriding a Presidential veto

    The requirement that Amendments to the US Constitution pass with a two-thirds vote of Congress and 3/4 ths of the state legislatures.

    The Framers of the US Constitution also expected that the US House and the US Senate would be conducted on the basis of simple-majority rule. We know this because it is stated very clearly when super-majorities are required. Article 1, Section 5 states that a simple-majority is required for a quorum. Article 1 – The Legislative Branch
    Section 5 – Membership, Rules, Journals, Adjournment

    Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

    Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member.

    Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

    Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

    Article 1, Section 3 gives the Vice President a vote when the Senate is tied, a power that would make no sense if the Framers had intended for a super-majority to be required. Article 1 – The Legislative Branch
    Section 3 – The Senate

    The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

    The US Constitution trumps Senate rules. Thus, no Senate can, without adhering to the process of Amending the US Constitution, revoke from the Senate the power of a simple-majority of Senators to set the Senate’s Rules and Procedures.

    Is the fact that the Constitutional Option a legitimate power of the US Senate and not a “trick” or a symptom of a desire to “cheat” bad news for conservatives?

    No. The filibuster rule has had a negative impact on America’s governance. This is partly because while the Democrats have often enjoyed Senate membership of 60 or more members, the Repubicans never have.

    Also, bad legislation is usually gets more votes in the US Senate than good legislation.

    All of the nightmare scenarios you hear about what would happen if the filibuster were removed from the Senate playbook have already transpired.

    All of these Left-wing agenda items have passed the Senate, despite the existance of the filibuster rule:

    Amnesty for illegal immigrants
    Unsustainable entitlement programs
    Out of control Government Sponsored Enterprises (Fannie Mae/Freddie Mac)
    Liberals on the US Supreme Court and US circuit court of appeals

    For the other side of the coin, let’s look at the 2003-2004 US Senate, which consisted of 51 Republicans and 49 Democrats.

    During the 2003-2004 Senate, the Democrat minority successfully filibustered 10 conservative judicial nominees for the US circuit court of appeals, including Miguel Estrata and Carolyn Kuhl.

    Liberal nominees for the federal courts have never been defeated by a filibuster (unless one goes back to 1968, but that’s a bad example for a few reasons).

    The bottom line is that the Constitutional Option is not “cheating” and the 60 vote cloture requirement contained in Rule 22 of the Standing Rules of the Senate is not to the long-term advantage of the conservative agenda or the United States. I say long-term because, of course, in the short term, while the Republicans are in the minority, there might be more advantages to keeping the 60 vote cloture requirement than reducing it.

    But when January 2013 rolls around, we might have a Republican in the White House, a Republican majority Senate, Antonin Scalia and Anthony Kennedy might be ready to retire from the US Supreme Court. At that point, conservatives should demand that the Constitutional Option be used, not only to enact tort reform, repeal Obama-care and so on. But also to make darn sure that 41 Senate Democrats don’t have the ability to do what they did to Miguel Estrata and Carolyn Kuhl.

    After all, it was the threat of the Constitutional Option that got John Roberts and Samuel Alito a confirmation vote on the Senate floor.

    • Spiral

      Here are some good references on the history of the Senate Filibuster and the Constitutional Option.

      The Constitutional Option to change Senate rules and procedures: a majoritarian means to over come the filibuster by Martin B. Gold and Dimple Gupta

      And then there is this speech by Senator Jon Kyl (R-Arizona) made during the controversy over the Democrats’ judicial filibuster strategy against conservative nominees to the US Circuit Court of Appeals. On the Right of the Senate to Govern Itself – May 19, 2005 by US Senator Jon Kyl

      Mr. President, the Constitution is clear about the scope of the Senate

      • JSobieski

        I presume that it is also your view that “fast track” trade negotiation authority and the base closing processes are similarly as voluntary and non-binding as the filibuster?

        In other words, all of those things to the extent that they are followed, are followed out of comity or out of some type of legislative deterrence. I.e. Presidents want fast track authority not because of the legal effect, but because it shows that the majority of Congress is willing to limit amendments, etc.

        I think it is a stronger and more persuasive argument to say simply that a house of Congress cannot bind future Congresses or even that same Congress at a future date than it is to say that the Constitutional authority of the Senate to set its own rules is somehow violated by setting those rules a certain way.

        The vast majority of Constitutional law comprises guardrails that constrain activities to certain parameters, but do not require any specific path within those parameters (for example, the amendment on income tax doesn’t require a income tax or have anything to say on what a good income tax rate should be). I personally find the argument about not being able to bind future legislators more persuasive and more quickly comprehensivle even though one could argue that the two points are two sides to the same coin.

        While I have always agreed that a statute couldn’t bind a future legislator in making a legislative activity my reading over the past few days (which included many of the links you provided) leads me to conclude that there is no reason why a rule should be able to bind a future legislator either.

        I now fully agree that the only limits of Congressional discretion in terms of passing legislation are (1) the Constitution and (2) the will of the majority in the particular body (which presumably is susceptible to some level of public opinion).

        You and GC have convinced me, although each of you used a different analytical path than what I ultimately traveled.

        • Spiral

          I presume that it is also your view that

          • JSobieski

            then so can the “fast track” trade authority and so can the base closing framework. Moreover, as GC points out, the Senate can simply refuse to hold hearings on judicial nominees.

            For similar reasons line-by-line vetos, Paygo, Gramm-Rudman, and other Congressional gimics are just that—gimics.

            All of the things that Congress does to itself is an illusion. The fact that so many in Congress vote for those “binding” frameworks knowing that they aren’t binding is pretty sad.

            Everything Congress does is a political question unless its in the Constitution. Any rules are really suggestions or assertions of the current will of the body.

          • avgjo

            make introducing certain types of legislation illegal? First, please note, I didn’t say nice or even ethical. Is it legal and possible to do so? We’re going to have to start thinking in terms of more extreme legislation to restrain, not the people, but the government, if we are to survive this trash.

            I suppose it would be necessary to also draw up an enforcement mechanism.

        • Spiral

          In addition to the Constitutional arguments regarding whether it is “cheating” for a simple-majority of the Senate to change Senate rules/procedures, there is also the issue of how will it impact the conservative agenda versus the liberal agenda.

          As I have studied politics over these past 20 plus years, I have noticed that bad policy ideas tend to get much more support than good policy ideas.

          For example, SCHIP. Giving “free” health care to children will garner well over 60 votes in the US Senate. But an attempt to cut spending on SCHIP, due to need to cut spending generally, would not likely generate overwhelming support among US Senators. In fact, even as Senators attempted to cut spending on SCHIP, they would probably say in their Senate floor speeches, “I don’t want to cut spending on SCHIP. But our government is running a huge budget deficit and we are heading towards bankruptcy.”

          Thus, my belief is that many agenda items on the Left, giving “free” things away at the expense of some anonymous taxpayer or business, is more likely to be able to clear the 60 vote hurdle than is a conservative agenda item that is based on the premise that there is no free lunch.

          We could also go into why the Democrats were able to effectively filibuster 10 conservative judicial nominations during the 2003-2004 US Senate while Republicans have never been able to filibuster any liberal judicial nomination. Whatever the explanation, this development is damaging to our judicial system.

  • boxedquad

    Thank you all for great thoughts and historical lessons. We are blessed and cursed by our election process and the rules that allows for discourse or in some cases, thumps everyone else by purging of thoughts.
    It is not new and we will survive, but at what peril. Rebellion- perhaps it may be a requirement, but I wish it not to be required.

  • oldmarine

    Reid is worse than Pelosi and remember the casino union vote put him back in office

  • miroco

    I have watched the decades roll by as the right consistently got rolled by the Dems. I don’t see it changing until we rid ourselves of the GOP. My grand daughter could roll that panty waist McConnel. I am already seeing crybaby Boehner backing down to the MINORITY.
    I do not speak to people who know people who speak to Dimocrats but I am pretty much embarrassed to admit in public that I know any Wusslicans. Reid, Franken, Coons and I am near certain of a few others, all elected in spite of a minority of votes. Run Pawlenty for Pres, he gave away his whole state.

  • reddog53

    Terrific, clear and compelling writeup.

  • http://www.gmsplace.com/ civil_truth

    And, although both parties have tried, from time to time (e.g., in 1975 and 2005), through non-binding

  • redneck_hippie

    Let us not forget the attempt at a Slaughter rule (named for a member of the rules committee). Imagine if it were activated as a standing rule. Hello Union of Democrat Socialist States.

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

    First, welcome to Redstate! And thank you for your great analysis.

    You ended it with a “bottom line” section and said, “So don

  • momma

    “Second, those of us who witnessed the passage of the START Treaty, Don

  • Common_Cents

    He said he doesn’t remember his 2006 vote against raising the debt ceiling.

    “I don’t really know what vote you’re talking about, I’ve cast about 15,000 votes,” he said. “I’m saying today that we have to raise the debt ceiling. There’s no alternative.”

    He doesn’t even pretend to feel anything for America. He can boldly look you in the eye and blatantly lie.

    Watch that clip here and have a barf bag ready.

    http://american-conservativevalues.com/blog/harry-reid-failing-increase-143-trillion-debt-limit-option.html

  • proudmarinemom

    “Secret” hold letters? So, how does the hold letter constitute a request to “hotline” everyone before a unanimous consent vote if it is “secret”??? Who hears the request?

    And if the junior senator monitoring the floor can’t comply with the notice requirements, get him or her a flock of carrier pigeons and a pair of roller skates.

    Never mind.

    We are just scr*wed.

  • jeffersonradical

    IS IT COMING ARMS
    It is not a scientific poll but I have been asking people if they would acquit or would hang a jury if someone shot the right politician many said they would. Those who make peaceful revolution impossible will make violent revolution inevitable. John F. Kennedy I have been advocating for this discussion for over a year. We can not let one or two states control the hole country by their senators subverting the rules that have served us well for more than 230 years. The few comments I received about fling the flag upside-down as a sing of distress or talking about the Jefferson solution WERE give 2010 elections a chance. The tyrants did not get the message and Jefferson is not the only one with the same message. And I am very near the point at my age and health that natural manure may be my best use. Can anyone tell me why I should fell differently.
    Firearms are second only to the Constitution in importance; they are the peoples’ liberty’s teeth.
    George Washington
    God forbid we should ever be twenty years without such a rebellion. The people cannot be all, and always, well informed. The part which is wrong will be discontented, in proportion to the importance of the facts they misconceive. If they remain quiet under such misconceptions, it is lethargy, the forerunner of death to the public liberty. … And what country can preserve its liberties, if its rulers are not warned from time to time, that this people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to the facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants. It is its natural manure.
    Thomas Jefferson
    Money, not morality, is the principle commerce of civilized nations.
    Thomas Jefferson
    I think this is the most extraordinary collection of talent, of human knowledge, that has ever been gathered at the White House – with the possible exception of when Thomas Jefferson dined alone.
    John F. Kennedy
    Americans have the right and advantage of being armed – unlike the citizens of other countries whose governments are afraid to trust the people with arms.
    James Madison
    We are right to take alarm at the first experiment upon our liberties.
    James Madison
    The right of a nation to kill a tyrant in case of necessity can no more be doubted than to hang a robber, or kill a flea.
    John Adams
    This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing government, they can exercise their constitutional right of amending it, or exercise their revolutionary right to overthrow it.
    Abraham Lincoln
    Those who make peaceful revolution impossible will make violent revolution inevitable.
    John F. Kennedy
    It’s not surprising, then, they get bitter, they cling to guns or religion or antipathy to people who aren’t like them or anti-immigrant sentiment or anti-trade sentiment as a way to explain their frustrations.
    Barack Obama
    There is danger from all men. The only maxim of a free government ought to be to trust no man living with power to endanger the public liberty.
    John Adams
    Stand with anybody that stands right, stand with him while he is right and part with him when he goes wrong.
    Abraham Lincoln

  • froster

    Senator X goes to the Minority Leader and says “I’m putting a secret hold on this.” The Minority Leader informs his entire caucus and then Senator Y will go the floor and say “There is an objection in my caucus, so I must object at this time.”

    The point that some people want to change is that Senator Y must go the floor (or the Senator closest to the floor) and say “There is an objection from Senator X so I must object at this time”

  • Spiral

    reddog54, your signature line, “What great cause would have been fought and won under the banner ‘I stand for consensus?’,” is appropriate to consider in the debate over whether the filibuster rule should be retained or eliminated/changed.

    The current filibuster rule allows 41 of 100 US Senators to block action by the Senate.

    In the 2003-2004 US Senate, 10 conservative judicial nominees, including Miguel Estrata and Carolyn Kuhl, were defeated by the Senate Democrats’ filibuster strategy. Also, reform of the GSE’s Fannie Mae and Freddie Mac was blocked by the minority Democrats in the 2005-2006 Senate.

    But notice how liberal judicial nominees are not defeated by the filibuster rule.

    Also, notice how TARP sailed through the US Senate in 2008 despite the filibuster rule.

    Some say that the Senate must retain the filibuster rule so that the Senate can be “a cooling saucer.” However, the Senate has not prevented socialist legislation such as TARP, Social Security, Medicare, Medicaid, SCHIP, Fannie Mae/Freedie Mac, Amensty for illegal immigrants from passing the Senate.

    The reason for this is simple. Bad legislation consistently receives more votes in the US Senate than good legislation.

    When a Senator proposes to give “free health care to children” (SCHIP), the legislation receives well over 60 Senate votes, enough to shut off a filibuster. This is because US Senators love to be seen giving “free money” for the benefit of children.

    But when a Senator proposes to allow drilling in the National Artic Wildlife Refuse or restrict the activities of Fannie Mae/Freddie Mac, or provide a conservative judicial nominee like Miguel Estrata or Carolyn Kuhl a confirmation vote, there are always at least 41 US Senators willing to block such activity.

    The result over the past 80 years has been a heads liberals win, tails conservatives lose pattern of public policy making. If the filibuster is eliminated or radically changed, conservatives will no longer have to water down their agenda in the quest for 60 votes.

  • missyjanie

    Maybe now is the time to repeal the 17th amendment. That amendment changed how the Senate is elected. From our inception it was the state legislators who chose the state’s senators. Thus the Senate was more concerned with their state’s wants and needs and not so busy spending the country into bankruptcy. They were very cognicent of the mood of their constituancy and voted their wants, not the party line.

  • http://www.va5thdistrict.blogspot.com va5thdistrict

    if the filibuster rule had been different we would now have cap and trade and an even more oppressive health care bill. How much else would the Democrats have pushed through in the last two years if they only needed 51 votes.

    It is not the rules that are a problem but RINOS such as Snow, Collins and Brown. Without the 60 vote filibuster the senate would be a majority rule body with the minority having absolutely no say in legislation. Is that what you really want?

  • southernpatriots

    Thank you for putting it exactly how it has been for many decades now. We hope everyone, everywhere, reads your comments. Keep them coming! Let’s put a fire under the seats of the elitist or establishment reps.

  • Spiral

    The nation would be better off without Senate Rule 22′s 60 vote cloture requirement.

    While legislation that features giveaways, such as Social Security, Medicare and SCHIP can win the support of huge super-majorities in the US Senate, conservative does not usually get the support of majorities large enough to overcome the 60 vote cloture requirement.

    Also, while conservative judicial nominees such as Miguel Estrata and Carolyn Kuhl were effectively defeated by the 60 vote cloture rule during the 2003-2004 Senate, liberal judicial nominees do not get defeated by the 60 vote cloture requirement.

    The only reason why conservative judicial nominees John Roberts and Samuel Alito were confirmed to the US Supreme Court was because many Republican US Senators threatened to use the Constitutional Option if the minority Democrats filibustered their nominations.

    At some point in the next several years, if Republicans are to prevent the US Supreme Court and the US court of appeals from tilting ever further to the Left, the Republicans will have to use the Constitutional Option to overcome Democrat filibusters.

    Bring on the demise of the filibuster. I would prefer if the demise of the filibuster could wait until the Republicans gain the majority in the Senate. But if the Democrats want to do it now, that’s acceptable.

  • Spiral

    Article I of the US Constitution gives the majority of the Senate the power to set its rules.

    This is a Constitutional right that the majority of the Senate has. Thus, it can not be revoked by the 1959 Senate. The 1959 Senate attempted to revoke the Constitutional authority of the majority of the Senate to set its rules by passing Rule 5. Rule 5 may be ignored by a smiple-majority of the Senate.

    Here is Article 1, Section 5, where the Constitution gives a simple-majority of the Senate the power to do the Senate’s business, including make the Senate’s rules.

    Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

    Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member.

    Here is part of Article 1, Section 3, where the Constitution gives the Vice President the authority to break a tie in the US Senate. This power would not have been included in the Constitution had the Framers of the Constitution intended for the Senate to be ruled by super-majorities.

    The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.