Remember the really nasty bully on the school playground? The guy who would use force and intimidation to beat up the other kids? And on that rare occasion when he was actually losing, he’d just change the rules. By brute force. Because he could.
Well, he’s probably stocking shelves at WalMart now. But a slimier, more vicious, infinitely more dangerous bully has now emerged on the national scene.
And his name is Harry Reid. He’s the guy who’s trying to change the Senate rules. Illegally and unconstitutionally. By brute force. Because he can.
Under Rule V, Paragraph 2, of the Standing Rules of the Senate, the Senate keeps its rules, from Congress to Congress, unless the Senate changes them. And, to do that, under Rule XXII, you need two-thirds of the senators present and voting to shut down debate. (The cloture threshold on rules changes is deliberately different from cloture on other matters.)
Rule V, Paragraph 2, exists because the Senate is a “continuing body,” with most of its members carrying over from the previous Congress. Old senators are not sworn in at the beginning of each Congress, unlike the House. In fact, if the Senate is not a “continuing body,” and two-thirds of its members are not sworn in, the validity of everything the Senate does is in serious question.
Article I, Section 5, Clause 2, gives the Senate the right to set its own rules. But, by giving it the right to set those rules, it gives a constitutional imprimatur on the legitimacy of those rules. If the Senate can set its rules, but its rules are non-binding, Article I, Section 5, Clause 2, is meaningless. Rules which do not have to be obeyed -– and can be ignored without even taking the time to waive or change them –- would violate the provisions of Article I, Section 5, Clause 2 -– and would, hence, be unconstitutional.
But, Reid believes, the “political question doctrine” will insulate even the slimiest procedure from judicial scrutiny. The Senate, in effect, is above the law and above the Constitution.
What if the Senate, by majority vote, “deemed” that two-thirds of the body voted to override a veto –- or to impeach the president? This would be similar to what Nancy Pelosi was considering in order to pass ObamaCare -– and is done with regularity at political conventions.
Would this be beyond the scope of judicial review?
Democrats would whine that it’s unconstitutional. But so is overriding the Senate’s power to set its rules. What’s the difference?
But, argues Reid, the Republicans tried to invoke the “nuclear option” during the Bush administration.
Yes, and I, and conservative groups like Gun Owners of America and the National Right-to-Work Committee, worked right alongside Ralph Neas to preserve the Senate rules. Senators who served when the Senate was a great institution –- men like Jim McClure (R.-Idaho), Paul Laxalt (R.-Nev.), and Mac Mathias (R.-Md.) -- editorialized against it.
And we defeated the Republicans’ nuclear option, even though we supported the GOP’s legislative goals.
But, says Reid and the brainless “parrot media,” “the minority party ... uses the filibuster routinely to require 60 votes to get nearly anything done.” [Concord [N.H.] Monitor, November 25, 2012, p. D2]
That’s not really true.
What is true is that Reid routinely files cloture on matters before the first word has come out of either side’s mouth. Then he withdraws the pending question, moves to something else, and files cloture on that. If cloture is invoked on the motion to proceed to a bill, Reid “trees” the bill with the maximum number of permissible amendments, files cloture on the bill, and moves to something else. Thus, Reid effectively shuts off any debate or amendment on some of the most important issues of our time.
My guess is that Reid would prefer not to “pull the trigger” on the nuclear option. Rather, he is using the threat to secure incremental changes, like an abolition of the filibuster of the motion to proceed, a limit on post-cloture time on nominations, and a sliding scale of fewer and fewer votes which would be required after some time has elapsed.
(You may remember the importance of the filibuster of the motion to proceed from the fight over ObamaCare. Prior to the adoption of the motion to proceed, the bill was unamendable. The vote on cloture was a vote on the bill in its reported form. However, once the motion to proceed was adopted, Reid began playing “let’s make a deal” in earnest.)
Republicans should not allow themselves to be cowed into another quasi-surrender for the second Congress in a row.
Remember several things:
First, two years ago, Reid promised that he would reciprocate for Republican concessions by allowing the GOP to offer amendments to bills.
How’d that work out?
Understand that Harry Reid is a sleazy liar whose commitments aren't worth the paper they’re printed on. Back when the Senate was a nobler institution, dishonest weasels like him would have been shunned.
Second, know that, if the Senate doesn’t have any rules, it doesn’t have any rules.
There’s no way for it to conduct any business in any traditional sense, including swearing in new senators, designating officers, and other housekeeping matters.
Reid will try to get Republicans to “implicitly” ratify the rules he needs to conduct the business he wants to conduct. They would be fools to do so.
Furthermore, there are no rules to limit amendments. And Senate Republicans, by now, should finally understand the types of issues they need to begin getting votes on.
Third, Democrats need to understand that you can’t “unpull” the nuclear trigger.
There’s a reasonable chance that Republicans will control the Senate in 2015. Twenty Democratic senators are up –- seven in states which even Romney carried. The sixth year out is normally not kind to the party in power, UNLIKE THE REELECTION YEAR. And our message would not be modulated by a feckless clown at the top of the ticket.
So, without Senate rules, public policy may soon become like water splashing back and forth in a bathtub, with policies created every eight years –- only to be routinely and immediately repealed eight years later. (This is what now happens with most controversial executive orders.)
Incidentally, don’t expect the rules in the 1974 Budget Act to survive in a Senate where there are no rules. ObamaCare and Dodd-Frank, of course, will be repealed immediately.
Over the weekend, I went to see Spielberg’s new biopic about my distant relative, Abe Lincoln.
I am not distorting the film when I say that one of the movie’s major themes was the lies and bribery which were used to pass the Thirteenth Amendment to the Constitution, which abolished slavery.
The point seems to be that slimy tactics are justified by noble goals. Bribery, fraud, and deceit are, thus, admirable, based on the legitimacy of their purpose.
One supposes that this view is fairly widely held in liberal circles.
But I would ask them to consider their own self-interest. A Senate which consists of nothing but an untrammeled “id” may not be the gift that its creators imagine. And, if there’s one thing that 40 years in Washington have taught me, it’s that, no matter what you think the “demographics” portend, the pendulum always swings back again.