Wouldn’t a “rule” apply to the Senate in general, and not just to it’s procedures for the (re)consideration of a specific bill?

In other words, a change to the Senate Rules would say “All future amendments to bills require a 3/5ths vote”, rather than this (procedural?) change, which only applies to the part of the statute in question.

Is this a legally relevant distinction?

“IMHO such clauses as these are odious since they in effect disenfranchise future voters by presuming to know more than they.”

“Living Constitutionalism” is already predicated on knowing more than past generations – why shouldn’t they know more than future ones as well? Is their brilliance not as self-evident to you as it is to themselves?

It is ironic that those who have chafed so much at the yoke imposed by the written Constitution (you know, the one Barnett is ever on about) that they have all but thrown off its strictures have wasted so little time crafting new strictures of their own for those future generations with the temerity to follow their example.

Is the Living Constitution interred with their uniquely glorious bones?

Of course even with that draconian penalty they still spared the city of Miletus (? Someone will tell me the correct city I’m sure) from being destroyed.

It was the Island of Melos.

“Binding” in these situations means “the presiding officer, backed by the parliamentarian, will enforce the rule when a point of order is made, and the existing Senate will back it.

In other words, it’s as I said: all you need is a presiding officer willing to ignore the parliamentarian.

Twirip Jim from Albany says:
It is very common Senate practice.

Can you provide a list of some of the other tmes this “very common practice” has been employed?: Jim

All of the 60-vote budget process hurdles, the inability to filibuster reconciliation language, fast-track authority under various trade agreements, etc., etc.

“Binding” in these situations means “the presiding officer, backed by the parliamentarian, will enforce the rule when a point of order is made, and the existing Senate will back it. Since the existing Senate could technically NOT back it, that’s an out for those who claim you can’t bind future congresses. But the existing Senate cannot escape the filibuster that could prevent them from voting to overturn the ruling of the chair, nor can than alter the rules of the Senate except by 2/3 majority to end a filibuster of a rules change (as I outlined above). So, like it or not, it’s binding.

None of this can end until it is affirmatively decided by an existing Senate that a bare majority can alter the Senate rules. As long as the 2/3 cloture rule remains for rules changes, the only way out is to empower the VP to make a constitutional ruling (as I outlined above) and uphold it by tabling the appeal.

Of course, once you do that, the whole house of cards falls, as majoritizing rules changes will, in effect, kill all non-majority rules provisions.

Jim from Albany: Changes to the standing orders or procedural changes such as this can be done via statutory rulemaking with majority votes (and 60 threshold cloture votes). They are binding.

I’m not sure I understand the term “binding” here. If you mean: a legislator at time t+1 could obey the rule out of a sense of legal obligation, I think you might be right. But the question is whether that same legislator must do so, or, alternately, whether that same legislator may, consistent with legal and constitutional obligations, disregard the rule. Probably the legislator who disregarded the rule would do so because he thinks that where the Constitution grants legislative powers, current legislative majorities rule, not past majorities, as a basic constitutional matter. I’m finding it hard to believe that this argument is simply not available.

A rule that a legislator may decide not to treat as binding is, for that reason, not really binding, even though it may be a strategic roadblock. (In his post above, Eric appears to disregard any difference between these two kinds of bindingness. If you do that, then the question is a little easier, I think.)

Where is Al Pacino when we need him — “NO! YOU’RE OUT OF ORDER! YOU’RE OUT OF ORDER!”

Better question: Where is Al Pacino Arthur Kirkland when we need him — “NO! YOU’RE OUT OF ORDER! YOU’RE OUT OF ORDER!”

By the way . . The whole trial is out of order!!!

Hold it!! Hold it!! I just completed my opening statement.

Can the current Senate bind future Senates in this way?

Even if it is customary to allow this, from what I understand US v. Ballin establishes that as a matter of law, any procedural rule can be changed at any time by simple majority vote (indeed, threatening to do this is the whole basis of the ‘nuclear option’).

Jim from Albany says:

It is very common Senate practice.

Can you provide a list of some of the other tmes this “very common practice” has been employed?

Of course even with that draconian penalty they still spared the city of Miletus (? Someone will tell me the correct city I’m sure) from being destroyed.

Relic: If the rules of the Senate cannot be changed except by a 2/3 majority, and this constitutes a change to the Senate rules, then the provision violates the Senate rules, because the change was enacted without a 2/3 majority. Count me among the folks saying it’s nonbinding.

This does not change the Senate rules. The 2/3 rule applies to explicit changes to the rules. Changes to the standing orders or procedural changes such as this can be done via statutory rulemaking with majority votes (and 60 threshold cloture votes). They are binding.

We should get rid of the filibuster and the courts should rule unconstitutional all instances of language like this in the U.S. Code. The human brain suffers from status quo bias as it is, anyway. Between that and the many veto points actually built into the constitution, we don’t need this.

Where is Al Pacino when we need him — “NO! YOU’RE OUT OF ORDER! YOU’RE OUT OF ORDER!”

From “And Justice for All.”

So, we are likely to have 55 or so Democrats in the Senate forcing this 2/3 or so majority on future Congresses. Not surprising, but then again, not fair either.

If you’re an individual senator opposed to a specific recommendation from the board, but generally consider the 75% rule to be a good one, changing the rule would put all the times you think it is good at risk in pursuit of the one time you think it is bad.

An example I’m thinking is that 55% might want to overturn a recommendation on breast cancer screening but might not want to enable simple majority because it would put other abortion related recommendations at risk.

Not true on either count.

Unlike the House, the Senate has long contended that it does not have to readopt its rules. As only 1/3 of the Senate turns over each Congress, the rules remain in effect.

The second half of the above proposition is far more important. Senate rules state that a 2/3 vote is required for cloture on any bill, resolution, or amendment that seeks to change the Senate rules. So a bare majority CANNOT alter the Senate rules, even at the beginning of a Congress. This is why Rule 22 (the cloture rule) has been so hard to change.

This idea — that the 2/3 rule to change the rules is Constitutional — has been attacked, most notably in 1957 and 1969. At the beginning of each of those Congresses, attempts were made to have a Constitutional ruling that a bare majority could change the Senate rules at the beginning of a Congress. The technique was as follows: a friendly vice-president (Nixon in ’57, Humphrey in ’69 [just before leaving office]) would rule on a point of order that the 2/3 rule was unconstitutional (as opposed to submitting the question to the Senate, which would be standard practice). Then, when the proponents of the rule appealed the point, the reformers would table the appeal by majority vote. The key is that tabling the appeal is not debatable, so it itself could not be filibustered. [The other way, submitting the question to the Senate, would never work, since points of order themselves are debatable at that point, and thus could be filibustered]. Unfortunately, both times they got friendly rulings, the reformers did not have the votes to get a bare majority, and the tabling failed, ultimately allowing the VP ruling to be overruled.

None of this matters in the current example. Although DeMint is arguing that the health care bill changes the Senate rules and thus requires 2/3 vote, he is not correct. The bill technically only provides procedures which amount to “standing orders” of the Senate. Only explicit changes to the Senate rules require 2/3 vote.

Of course, once you realize that a bare majority cannot change the Senate rules, virtually any rule made by the Senate — either standing orders made by statute or resolution, or actually changes to the rules made by 2/3 supermajority — become binding on future bare majorities.

It is very common Senate practice.

Jim

A legislature is bound when it chooses not to act contrary to the previous rule.

Keep in mind that the rule is question is being made a part of the US law.

In any case, a majority of either house can change the rule for that house at the beginning of a new Congress.

This is true. But it would require the Senate to abolish the filibuster, and we know how attached Senators are to the filibuster. So it does not set the bar at 67 votes, but still probably at more than 51.

And current Senate majorities are bound by the desire to have the procedure available when they are no longer in control. Seems like a typical case of immediate gratification vs. long term consequences. So far those consequences have kept the cloture rule in place.