Some House Democrats seem prepared to pass the Senate health care bill if the Senate will use the reconciliation process to amend the health care legislation. Yet there’s a catch. Some House Democrats want the Senate to go first, and as the Plum Line reports, congressional parliamentarians are not quite sure how to do this. As one congressional aide summarizes the problem: “How do you fix a bill that hasn’t been passed yet?”
PersonFromPorlock says:
Well, it’s Congress: there’s always bribery.
February 2, 2010, 9:07 amAbdul Abulbul Amir says:
In this case, a pass through a shredder would be a good first step.
February 2, 2010, 9:24 amPeteP says:
Very simple – change the rules.
Dems excel at it.
But I doubt they get away with it this time – even under reconciliation, they have to clear a 60 vote filibuster numberous times ( on every amendment, and by Rule there is no limit to amendments, Reid can’t ‘fill the tree’ ). Too many Dems have already jumped the train, and too many Repubs have already announced ‘This will be nuclear war’. Even Hatch said it, and he’s not usually one to take that strong a position in public.
February 2, 2010, 9:34 amDavid McCourt says:
The problem is, the House is worried that the fix is not in; they don’t trust the Senate to keep its word to “fix” things if they, the House, pass the Senate version verbatim. So, it’s “after you, Gaston.” “No, no, after you.”
Imagine, one set of politicians refusing to trust another set, from their own party, no less. You’d think they know each other pretty well. I’d say that in this season the voters have come to know them that well, also.
February 2, 2010, 9:45 amMark Field says:
This isn’t a “real” excuse. It’s the kind of excuse people give when they don’t want to do something and need to give a veneer of credence to their position.
February 2, 2010, 9:49 amruuffles says:
Why would they need to change the rules that had been used to pass Bush’s tax cuts for the rich, among other things?
February 2, 2010, 9:54 amDavid McCourt says:
“This isn’t a “real” excuse. It’s the kind of excuse people give when they don’t want to do something and need to give a veneer of credence to their position.”
Mark Field, I think you are right, for many of them at least. Unlike the Congressional leadership and the White House, some of them actually have begun paying attention to what their constituents think and want.
February 2, 2010, 10:16 amPaul says:
Mark, supra:
Bingo! This is kabuki theatre. The health care debate is over and congressional Democrats know it. They’re merely keeping up appearances for the benefit of their base.
February 2, 2010, 10:30 amdean wermer says:
Whereas, the House of Representatives is poised to pass a bill in the form of, or substantially in the form of the bill attached hereto as Exhibit A, we hereby amend our bill, passed on ______, in the following manner, such amendments to be effective if and only if the House of Representatives in fact passes a bill in the form of, or substantially in the form of Exhibit A.
February 2, 2010, 10:31 amAnon21 says:
I suspect you’re making this up out of whole cloth. Can you point to a single neutral source supporting your contention that the Democrats would have to clear the cloture threshold in order to pass a reconciliation sidecar?
February 2, 2010, 10:46 amjrose says:
That doesn’t sound right. Yes, amendments can be offered to a reconciliation bill, but it takes only 41 votes to kill each amendment.
February 2, 2010, 11:06 amjrose says:
Firstly, the House bill wouldn’t be “in the form of”. It would have to be excatly what was previously passed.
Now, consider the Nebraska Compromise (Ben Nelson Medicaid giveaway). The question is whether the legislative language of a reconciliation bill has to identify the specific pieces of existing US Code that will be repealed. So, does a promise to repeal Section 1(a)ii have any legal effect when Section 1(a)ii doesn’t yet exist?
February 2, 2010, 11:13 amAnon21 says:
That sounds much more plausible. PeteP’s version sounds like sheer wishful thinking.
More interesting, I think, is Hatch’s “nuclear war” threat. I think it’s empty. If the Republicans decide to completely gum up the works, they lose any remaining leverage they have to keep Democrats from eliminating the filibuster completely, or at least paring the cloture threshold back to a more manageable 55.
February 2, 2010, 11:16 amDave N. says:
Anon21,
Changing the filibuster rule would require at a minimum 60 votes (you don’t think THAT wouldn’t itself be filibustered?) and may require as much as a 2/3 majority. So Democratic threats of eliminating the filibuster are less than plausible.
But go ahead, try to ram through an unpopular bill, one a majority of Americans now oppose, with the condescending talking point, “They will like when we actually explain it to them.”
Then see what happens in November.
By the way, at least according to Wikipedia, “Any senator may raise a procedural objection to a provision believed to be extraneous, which will then be ruled on by the presiding senator. A vote of 60 senators is required to overturn the ruling.”
February 2, 2010, 11:39 amOren says:
Most parliamentarians and academics agree that 51 Senators may change the rules of the Senate at any point by appeal to the chair who can refer the matter to the Senate at large (at which point a filibuster is no longer possible since they are not operating under the rules of the Senate). The GOP threats to do so during the 2004 nomination battles were quite real.
Doing so would damage the Senate incredibly (and the minority party would certainly grind the body to a halt) but it would certainly be constitutional.
February 2, 2010, 11:58 amAnon21 says:
No, that’s simply incorrect. The “nuclear option” of declaring the filibuster unconstitutional by ruling of the Chair has been gamed out. It requires a simple majority, and there’s no serious question about that.
There is a serious question as to whether Democrats have 50 votes to abolish the filibuster. I don’t think they do currently, but if the GOP declares “nuclear war” if and when and the Democrats pass a HCR reconciliation sidecar and shut the Senate down, I think Democrats will suddenly find they have many more votes for changing procedures.
February 2, 2010, 12:00 pmBitter About Estrada says:
Regarding changes to or avoidances of a filibuster:
It is true that a bare majority can do so, BUT ONLY by declaring it to be against existing Senate rules and/or the constitution. (This was what the nuclear option would have done for judges.)
However, to CHANGE the rules, as opposed to making decrees about interpreting their current form, requires 2/3 vote (at least once a session has begun).
February 2, 2010, 12:20 pmAnon21 says:
Right. This is exactly the plan. So you agree that the Democrats could abolish the filibuster with a simple majority?
February 2, 2010, 12:27 pmDavid Welker says:
Indeed. Nothing could be more damaging than returning to majority rule in the Senate, as contemplated by the Constitution.
As for the problem of the Senate grinding to a halt, here is a solution. Change the rules that allow a minority of Senators to grind the Senate to a halt. There. Problem solved.
I don’t see how returning the Senate to an institution that operates based on majority vote for ordinary business, as it was originally designed in our Constitution, would do incredible damage. Instead, what has caused incredible damage has been our move away from the Constitutional design. What has done incredible damage to the Senate is moving away from majority rule. As Alexander Hamilton said in Federalist 75:
The U.S. Senate right now is a disaster. It is totally dysfunctional. And you are worried about doing “incredible damage” to it by returning control to a majority?
I know some people really hate the idea that elections should have consequences. They think when Republicans win that they should be blocked by Democrats and when Democrats win they should be blocked by Republicans. But the Senate was not designed to infantilize voters by shielding them from any consequences for their decisions.
Democrats have a 59-41 majority in the Senate. They should be running the place. Someone should be running it. If the Senate were to ruled by a majority (as is contemplated by our Constitution), at least then someone would always be in charge. Instead, no one is in charge. Right now, the United States Senate is a totally dysfunctional. The place is a joke. A mockery. An embarrassment. The prediction of Alexander Hamilton in Federalist 75 have turned out to be exactly correct.
February 2, 2010, 12:32 pmBitter About Estrada says:
“So you agree that the Democrats could abolish the filibuster with a simple majority?”
Yes, but only if they do so while asserting that the filibuster either violates EXISTING Senate rules or is being used in an unconstitutional way. I think either rationale would be a tougher sell for health care legislation than for judges…
February 2, 2010, 12:33 pmAnon21 says:
You’re conflating issues. The question is whether the filibuster itself as used to create a de facto 60-vote requirement for all legislation and other Senate action is unconstitutional. HCR does not enter into the equation, except as an indirect beneficiary.
February 2, 2010, 12:48 pmChris Travers says:
The other element here is that I don’t think the Republicans well be very forgiving and allow the Democrats to filibuster when they are in charge if this sort of precedent exists.
The filibuster is a legitimate tool but one which should only be used in extreme circumstances. I disagree with filibustering unrelated actions because of an action taken in another bill. However, I don’t believe that reconciliation is appropriate for a bill that hasn’t been passed yet.
The current game is very ugly and I doubt the Dems get much sympathy for asking that rules be bent to the breaking point. The Republicans shouldn’t sink to their level though. It’s better to take it up in the court of public opinion come November.
The proper tactic here should be to start filibustering everything else RIGHT NOW until the reconciliation option is taken off the table or at least made to conform to existing rules. This isn’t too damaging because there is a reasonable way out for both sides. However, if you wait until an agreement has been reached on bending the rules, it will be too late. At that point, filibustering will be inappropriate.
February 2, 2010, 12:49 pmDavid Welker says:
Indeed. And Congress can also put provisions in ordinary laws that are passed by majority vote that any future changes to the law require 2/3rds majorities. Or they can put provisions in ordinary laws that prevent the law from being changed at all. That couldn’t possible be a problem, could it?
This rule is itself unconstitutional. The Senate cannot change its own nature, which is fixed by the Constitution. The Constitution is the source of power for the Senate to make rules in the first place. Article I, Section 5 provides:
The understanding in the Constitution is that each House may determine the rules of its proceedings by majority vote. Contrast the provision for punishing members for disorderly behavior, which can be accomplished by a simple majority vote with expulsion, which requires a two-thirds supermajority. Senate Rules that conflict with this Constitutional understanding are unconstitutional.
The idea that there is this special “window” at the beginning of every two years where majority rule may actually function is nothing more than a fiction. When long does such a “window” last? 1 hour? 1 day? 1 week? 1 month? The answer is no one knows, because this “window” has no textual support in our Constitution and is nothing more than a fiction.
Senate Rule 22, to the extent that it requires a two-thirds majority to change the rules, conflicts with the Constitution and is thus unconstitutional. Ironically, originally Senate Rules needed to only be adopted by a simple majority, yet those same rules purport to require supermajorities for further amendments. A majority of Senators can and should be declare Senate Rule 22 unconstitutional insofar as it purports to require a supermajority to change the rules. In fact, it is the duty of Senators to declare the rule unconstitutional. After all, Senators, no less than Supreme Court justices, take an oath to uphold the Constitution.
February 2, 2010, 1:00 pmDave N. says:
David Welker,
Out of curiosity, were you making the same argument when Democrats were filibustering judicial nominees during the Bush Administration? Or is your distaste for filibusters a creation of your opposition to those who are currently using them?
February 2, 2010, 1:25 pmmischief says:
If you find that in that passage you quoted — get your eyes checked
February 2, 2010, 1:29 pmShelbyC says:
David, is your position that any limits on a simple majority changing the rules are unconstitutional? A requirement that the change be debated first? That a quorum be present? That the senate be in order?
February 2, 2010, 1:33 pmDavid Welker says:
Dave N,
First of all, at the time that Democrats were filibustering judicial nominees, I was a Republican and a member of the Federalist Society. So, obviously, I was against those filibusters. I was also disappointed with the Gang of 14 compromise that prevented implementation of the “constitutional option.”
I have since changed my views. I am a Democrat now. However, I am still of the opinion that filibusters of Republican initiatives, including judicial nominees, should be declared unconstitutional.
February 2, 2010, 1:34 pmLongCat says:
So you accept that the Senate may, by majority vote, make its own rules. The filibuster rule was passed by majority vote. Since 1837 it has been accepted that restrictions on ending debate are in line with the Constitution. You seem to want to overturn a lot of precedent without much authority.
February 2, 2010, 1:37 pmChris Travers says:
Rule 22 may be lack the backing of the Constitutional and therefore might not be binding. However, if it represents a long-standing and generally accepted compromise, why shouldn’t it remain on the books? Are you against rules which are obeyed by 100 people on account of persuasive power rather than binding force?
As a parallel, suppose I write up a “contract” where someone agrees to pay me a certain amount to support an activity they like (maybe it is one of my software programs). Such a contract, lacking clear consideration, might not be binding. However if the other person pays me because it is important to them, is that a bad thing?
February 2, 2010, 1:40 pmPeteP says:
“Why would they need to change the rules that had been used to pass Bush’s tax cuts for the rich, among other things?”
Two words – Byrd Rule. Go look it up, study it.
They have massive POLICY differences they want, which can not make it through any legitimate use of reconciliation. However, if they change the rules ….. anything goes.
Also, the 2010 budget resolution, which specifies what this year’s reconciliation process can and can not do. It allows ‘health care’, but it also allows unlimited amendments.
“I suspect you’re making this up out of whole cloth. Can you point to a single neutral source supporting your contention that the Democrats would have to clear the cloture threshold in order to pass a reconciliation sidecar?”
Go do your own research. I have. Study carefully the point I raised, that the issue in question is not the FINAL vote ( which takes 50 + 1 ), but POINTS OF ORDER the Republicans will raise ( hundreds of them ), each of which requires 60 votes to go the Dem’s way. These will be mainly ‘poison pills’ to the Dems – things they don’t want to vote on, or against.
Also, as there are no limitations on amendments ( by the budget resolution ), and only certain VERY particular things are time-limited by the BR ( such as, for instance, debate time under recon is limited to 20 hours ), but this very specifically does NOT include time to VOTE, nor time to READ amedemnts.
Therefore, picture this :
(Demint) ‘Mr. President, I have an amendment at the desk’
‘The clerk will report’
(Clerk) An amendment by Mr. DeMint to declare April 1st 2010 ‘National honor people who have phone numbers in the 212 area code Day, if their names being with A’.
(Reid or designee ) ‘I ask UC that further reading of the Amendment be dispensed with’
(DeMint ) I object.
( Clerk)….. Aaraon Aardvark, whose phone number is in area code 212, and whose prefix is 123, and the first two digits of his suffix are 12 ( to protect privacy, ha ha ), Adam Aardvark, whose phone number ……’ you get the idea. A trivial computer program could import the NYC white pages, add the wrapping verbiage ( to eat up more time ), and there goes a week or so for each letter of the alphabet.
Repeat as need for the B’s, the C’s, etc. Then move on to Los Angeles, Chicago, etc.
The reading of each amendment will be followed by a 15 minutes vote ( no debate after the first cumulative 20 hours, by rule ), and then the next amendment can be offered. Or they could do a vote-a-rama, no basic difference. Each amendment will take a week to read into the record.
Game over.
“Yes, amendments can be offered to a reconciliation bill, but it takes only 41 votes to kill each amendment.”
I mis-spoke. Any points of order that are sustained by the parliamentarian will take 60 votes to over-rule the ruling ( if it goes against the Dems ), or 51 if it goes against the Republicans. Count on there being a Point of Order registered against every single line of the side-car, hundreds of them. A separate vote on each. However, amendments – as above. Look to this year’s Budget Resolution for the statements of these rules. They apply to health care, and IFRC education, perhaps another area or two.
Anon21 – “More interesting, I think, is Hatch’s “nuclear war” threat. I think it’s empty. If the Republicans decide to completely gum up the works, they lose any remaining leverage they have to keep Democrats from eliminating the filibuster completely, or at least paring the cloture threshold back to a more manageable 55.”
Like I said – “Change the Rules”. Screw all this ‘elections matter’ garbage, right ?
I doubt the Dems will try to change the filibuster – they know that A ) it will hand the Senate to the Republicans later this year, and B ) The Republicans will then also not be bound by filibuster by the Dems. They won’t go there.
DaveN – “By the way, at least according to Wikipedia, “Any senator may raise a procedural objection to a provision believed to be extraneous, which will then be ruled on by the presiding senator. A vote of 60 senators is required to overturn the ruling.”
Correct. Thank you.
Oren – “Most parliamentarians and academics agree that 51 Senators may change the rules of the Senate …..
Doing so would damage the Senate incredibly (and the minority party would certainly grind the body to a halt) but it would certainly be constitutional.”
And suicidal. I’m sure a ‘Gang of 14′ ( or whatever number ) would appear to stop it, exactly as they did under Bush with judicial nominations when Lott threatened to pull the trigger.
David Wlker –
“As for the problem of the Senate grinding to a halt, here is a solution. Change the rules that allow a minority of Senators to grind the Senate to a halt. There. Problem solved.”
Spoken like Nancy Pelosi herself. Yes, let’s turn the Senate into a mini-me of the House, where 50 % +1 can do any damn thing they please. Great idea.
“The U.S. Senate right now is a disaster. It is totally dysfunctional. And you are worried about doing “incredible damage” to it by returning control to a majority?”
Yes it is, no it’s not, and hell yes, in that order.
February 2, 2010, 2:05 pmOren says:
We have always been in a situation of “majority rule” — the majority has supported* the 60-vote cloture rule and hence the latter exists.
That is, if 51 Senators support the rule “It shall require 60 Senators to confirm a judicial nominee” then that is not only compatible with majority rule, it is compulsory that the Senate operate consistent with the wishes of the majority. Of course, they can bind themselves as such but they cannot bind future Senates (or even themselves at a later date) so any 51 Senators can, at any point, repeal that rule.
I suppose if you wanted to make it explicit, every failed cloture vote could be followed by another strict-majority vote “Do 51 Senators want to abolish the filibuster and past the bill (noting that doing so sets a precedent)?”. That question is implied in the current scheme of things and I think it does little good to rehash it every time cloture fails.
At any rate, this is a digression. There are at least 55 Senators currently sworn that absolutely will never vote for the nuclear option. Whatever the academic merits of it (and whatever your opinion on whether the nuclear option can be forced on the Senate against the wishes of the majority), it is a non-starter.
February 2, 2010, 2:09 pmOren says:
The presiding Senator is presumably Biden, right? Problem solved.
Oh, absolutely. I was just saying that 51 Senators may, not that there are 51 Senators that would.
In fact, I count at least 55 currently sworn that would never vote for it.
February 2, 2010, 2:16 pmDavid Welker says:
The Constitution says that the Senate can make its own rules. So, of course I accept that the Senate may make its own rules. The Constitution also says that Congress may pass laws. So, of course I accept that Congress may pass laws.
What I do not accept is the proposition that just because the Congress has the power to pass laws or the Senate has the power to make rules that any laws or rules they pass are automatically Constitutional. That issue has been settled at least since Marbury v. Madison.
February 2, 2010, 2:21 pmBitter About Estrada says:
Anon,
Yes, if your position is that the filibuster is simply unconstitutional, then indeed only 51 votes are needed to rule on that.
I only brought up the issue of judges vs. health-care because I think it’s a stronger argument that one (judges) cannot be consitutionally filibustered compared to the other (legislation).
February 2, 2010, 2:22 pmDavid Welker says:
The Senate was meant to be controlled by a majority. I mean, if you give a damn about the Constitution, that should matter. And no, a simple majority of the Senate could not do anything they please. A simple majority would have to get the consent of the House and the President to have any laws enacted.
The Senate would still be different from the House. Each State would still have two Senators. Wyoming, with a population less than a million will still have the same number of Senators as California, with a population of over 35 million.
If you go back to the historical origins of the House and the Senate, it was about a compromise between the New Jersey plan, which called for states to have equal representation, and the Virginia plan, which called for representation to be based on population. The Senate reflects the preferences in the New Jersey plan. The House reflects the preferences of the Virginia plan.
Going back to the way the original Senate worked in 1789 would not make the Senate just like the House. It would make the Senate just like the Senate envisioned in our Constitution and the Senate we had in 1789 instead of the embarrassing monstrosity that we have now.
February 2, 2010, 2:36 pmChris Travers says:
Let’s look at the questions here specifically:
1) If Rule 22 is passed again on each senate session, then it would seem to me to be fairly clearly (but probably only formally) binding on the Senate. If it is not, then it would seem to have no binding power whatsoever. I don’t think Congress can procedurally bind future Congresses.
2) If Rule 22 (or any other rule) were to be grossly and persistently violated by the Senate, I doubt it would have any impact on whether a court would uphold the passed legislation. If the Senate gets to make their own rules, I doubt the courts would enforce Senate rules. Hence all Senate rules are only binding to the point that they have persuasive power. I suppose in extreme cases, there might be due process issues that might arise, but absent extreme cases, I don’t see it.
3) So my point is that the Dems aren’t going to want to push the Senate into a purely majoritarian body because they want some protections for when they are out of power.
February 2, 2010, 2:36 pmDavid Welker says:
Bitter About Estrada,
There is no textual support in the Constitution for such a distinction. The Constitution says the Senate has the power to “advise and consent” on judicial nominees. If you are going to read that (correctly) to mean that a simple majority of the Senate must have the power to consent to a judicial nominee, then you are going to have to concede that a simple majority must have the power to change the rules of the Senate. Any such distinction between judicial nominees and other powers exercised by the Senate are simply self-serving and unprincipled.
I will say that when I was a Republican and a member of the Federalist Society as a student at Harvard Law School and I opposed Democratic filibusters of judicial nominees on constitutional grounds, I declined to make any such self-serving distinctions between filibusters of judicial nominees and filibusters for other purposes. Because the same logic applies in both cases and that actually matters to me. It is called being principled.
February 2, 2010, 2:47 pmjrose says:
It would a spectacle, one the Democrats could have done to stop the Bush tax cuts. I suspect the Republicans would also shy away from this strategy.
How does the parliamentarian determine whether a point of order, challenging the validity of a specific provision of the reconciliation bill under the Byrd rule, is sustained?
February 2, 2010, 2:49 pmD.R.M. says:
If the bill is passed or seriously modified by a simple Senate majority by Democrats, precedent is set such that it can be repealed (or amended into noneffect) by simple majority by Republicans. So, if the Democrats do gut the filibuster or use reconciliation to enact health care reform, the Republicans get to run against the unpopular bill both this November and November 2012, and (if they win) repeal it with a simple majority in 2013.
No, “people will like it when they have it” doesn’t work to stop this scenario. Nobody sees any benefit from the bill until 2014, so there aren’t any entrenched beneficiaries supporting the status quo in the 2010 or 2012 elections. The only way to entrench the bill is to pass it normally, and to pass changes to it normally. Otherwise, you’re betting entirely on the proposition that the Republicans won’t manage to win a majority over the next two elections. That’s a lot to bet on something as hard to predict now as the 2012 elections.
February 2, 2010, 2:54 pmgasman says:
“How Do You Fix a Bill that Hasn’t Been Passed Yet?”
It boggles the mind to think that this could be a serious question. Could there be some procedural thing to overcome in the Senate, or no precedent? Maybe.
But imagine the conversation anywhere else but on within the boundaries of a capitol building and our reaction to follow: “sure, the O rings are crap at this temperature, but we cannot see any alternative available but to go ahead and launch” (hypothetically just before the Challenger lifted off). Or, “yes the accelerator sticks a bit, but what other course of action do we have but to sell millions of them first”
Just the way the headline is stated implies a bizarre learned helplessness on the part of the quoted speaker. Yes there are alternatives to finalizing crap.
February 2, 2010, 2:58 pmOren says:
Marbury v. Madison is entirely silent on internal Senate rules.
You also know quite well that the Court devised the political question doctrine precisely to avoid entangling itself in such a mess. There is most clearly “a textually demonstrable constitutional commitment of the issue to a coordinate political department” — to wit, an explicit declaration that the Senate shall make its rules. I don’t know how much more clearly the constitution could commit an issue to a political branch.
See, e.g. Nixon v. United States, 506 U.S. 224 (1993) — (that was Judge Nixon, not President Nixon).
So now we have:
(1) The weight of precedent reaching back 100 years.
(2) The at least 55 (if not 60) Senators in favor of the current cloture rule.
(3) The nearly unanimous opinion of every Senate parliamentarian and a goodly number of Constitutional scholars.
(4) A clear doctrine indicating the Court will not interfere.
I commend you for having your theory, to which you are well entitled, but it most certainly has no bearing on amending a yet-to-be-passed statute. It might be worthy of its own thread, even, but it is entirely orthogonal to the topic of this one.
I was looking forward to a discussion on whether the Senate can, in fact, amend a statute before it is codified.
February 2, 2010, 3:00 pmGino says:
Before we return the Senate to simple majority rule, let’s return appointment to the state Legislatures. And while we’re at it, let’s multiply the number of representatives in the House by, say, 10. Can a nation of 305 million people be adequately represented by only 536? I don’t think so.
February 2, 2010, 3:09 pmPubliusFL says:
Define “someone” (and/or “be in charge”). It must not mean a particular political party, because parties aren’t in the Constitution. So is there any constitutional expectation that a majority of senators will always form some kind of cohesive voting bloc?
February 2, 2010, 3:12 pmOren says:
I was already of the opinion that a Republic majority could attach amendments to the bills to various must-pass budget resolutions.
As I recall, the American public was not too kind in judgment the last time Congress shut down the Federal government.
If you were Pelosi/Reid/Obama and you wanted to pass health care reform of some type, what would you do, exactly?
Either the House can pass the Senate bill unamended or the Senate needs to pass a different bill. Those are the only two games in town. The former doesn’t have a majority in the House, the latter won’t happen during the normal legislative process that is subject to filibuster.
The only alternative it to wed the two options in the manner suggested here.
February 2, 2010, 3:19 pmDavid Welker says:
Chris Travers,
A Senate Rule is “binding” on the Senate until a majority changes it. You can’t say that the power to change rules implies the rules are not binding. A rule is binding as long as it is in effect and not a moment longer.
Look, let us say that you had a situation where a Senate rule could be changed by a 2/3rd majority (a requirement that is unconstitutional, but lets go with it for the purposes of this hypothetical). It then follows that the Senate could change the rules of the Senate. Is the possibility of changing the rules ground for saying the rules are not binding? Absolutely not. The rule is binding until it is in fact changed.
Now, what is NOT binding is an unconstitutional rule. Just like an unconstitutional law.
A court would rightly decline to enforce legislation that was passed in violation of the Constitution. For example, if the Senate passed a law that was not consented to by the House, and the executive branch tried to enforce that law, you can bet the courts would decline to uphold the executive action.
But that is beside the point. The rules are not “optional.” Their creation is authorized by the Constitution and they must be followed whenever they are a constitutional. For example, a Senator who violates Rule 35 can be disciplined by the Senate as is authorized by Article I, Section 5 of the Constitution. Now, it is true that courts would rightly be hesitant to embroil them in the internal procedures of the Senate. But, that is irrelevant. ALL BRANCHES OF GOVERNMENT ARE BOUND TO FOLLOW THE CONSTITUTION. If the judiciary refuses to hear a case and enforce a provision of the Constitution against the political branches, that does not mean that following the Constitution is “optional.” All the Senators take an oath to uphold the Constitution. As do members of the House. As does the President. As do appointees to lesser executive offices.
What they “want” is irrelevant. They have taken an oath to uphold the Constitution. Following the Constitution is not optional. Just because a court will not force them to follow the Constitution, that does not mean it is okay to violate the Constitution.
Furthermore, that is just cowardice. If Republicans took over the Senate and they eliminated the filibuster, I would support them 100% in that action, even though I am a Democrat. That Democrats decline to follow the Constitution is no guarantee that a future Republican majority will likewise decline to follow the Constitution.
I guess I am not big on pacts where both parties mutually agree to disregard the Constitution. You block me and I will block you. Neither of us will ever get anything done. The institution that we are supposed to serve, the United States Senate, will be a total embarrassment, as predicted by Alexander Hamilton. The outcomes of elections won’t matter for anyone except for the careers of politicians. Citizens will become even more cynical than they already are.
Mutual pacts to disregard the Constitution don’t sound like a great deal to me. You know what. If Republicans win the House, the Senate, and the Presidency, I absolutely think they should be able to pass their agenda. EVEN if, heaven forbid, I should disagree with part or all of that agenda. If that agenda doesn’t work or is so bad, there is always the next election.
But really, if you think running the Senate by majority vote for ordinary business is so bad, then pass a Constitutional amendment. Otherwise, we should stick with the Constitution, which gives a majority of the Senate the power to make rules.
February 2, 2010, 3:21 pmPeteP says:
Jrose –
“How does the parliamentarian determine whether a point of order, challenging the validity of a specific provision of the reconciliation bill under the Byrd rule, is sustained?”
As I understand it, he/she decides whether or not he/she thinks it correctly follows parliamentary procdure and the Rules of the Senate.
It is then up to the Senators to accept his judgement, or attempt to override it with 60 votes. Either side may of course challenge it, for any reason / non-reason they like.
It can fairly be predicted that for every decision he makes, one side or the other will not like it, and will challenge. Then a 15 minute vote is required ( unless a UC is agreed to to allow a 2minute vote, which the delaying side will not agree to ).
AFAIK, each individual word of the sidecar ( reconciliation measure ) can be subjected at whim to a point of order, one at a time. The Parliamentarian will then rule ( either way ), then any Senator can demand a vote to reverse his decision. Count on at least 40 Senators ( from either side, or mixed sides ) not liking any decision he makes ( in either direction, on any given issue ), and challenging it.
Result – 100 % gridlock for as long as you like.
Then there’s the whole amendment process – which by current 2010 BR rule is unlimited in number or scope ( although limited in debate hours). I am not 100 % sure if amendments are required by that 2010 BR to be germaine or not ( anyone know that one ? ), but then you get into the Point of Order thing- I offer my ‘Phone list for the A’s’ amendment, the Dems raise a point of order on germainess, the Parliamentarian rules on the question, I object to his ruling and demand a recorded roll call vote, the Dems need 41 ( deny me my 60 ) to sustain. Then we go on the the B’s, etc. I am also not sure if the amendment can still be required to be read into the record BEFORE a point of order is raised against it ( if such can be raised ), but that’s merely a tactical question of ‘Do I offer amendment # 1,245 ‘Residents of Bumflick Egypt’ ealier, or later.
February 2, 2010, 3:31 pmDavid Welker says:
The idea that unconstitutional laws are not binding, but unconstitutional rules are binding is nonsensical.
But if your right, I think the Senate should pass a rule outlawing the House and the Presidency and declare that a random Senator should become dictator for life.
It is logically incoherent to think that the Senate can, through its rule-making power, overrule the very Constitution that established the power of the Senate to make rules in the first place. The issue of whether a law legitimately passed pursuant to the procedures established in the Constitution is enforceable despite being substantive unconstitutional was been resolved by Marbury v. Madison. The exact same logic absolutely applies to Senate rules, unless you are going to absurdly assert that Senate Rules (unlike laws) may trump the very Constitution that established the power to make Senate Rules in the first place.
February 2, 2010, 3:54 pmBitter About Estrada says:
David, this contention is grossly overstated. Reasonable scholars have debated whether the differing language in the respective provisions and/or context and/or precedent may indeed render this distinction legitimate.
Also, even if the constitution treats them the same, there’s still the question of whether Senate rules treat them the same (regardless of whether the rule could be changed on-demand).
That said, I suspect that you may be correct, but it’s far from being as inarguable as you suggest.
By the way, now that you’re a democrat, I don’t think you’re allowed to care about “original text” anymore! ;)
February 2, 2010, 3:56 pmDavid Welker says:
You want to know what it took to change the Constitution so that the people elect Senators directly instead of having state legislators appoint them? The 17th Amendment, which was adopted through pursuant to the procedure established in Article V. THAT is the way you change the Constitution, not through changes in Senate rules. If your policy preferences are to change the way Senators are appointed, you know how you should proceed? With a Constitutional Amendment adopted pursuant to the procedure established in Article V. You wouldn’t go about changing the Senate rules in order to change the way Senators are selected.
That you don’t agree with a particular Constitutional Amendment adopted pursuant to Article V has exactly zero relevance to the current debate, except to the extent that it demonstrates the right way to amend the Constitution.
February 2, 2010, 4:04 pmChris Travers says:
Correct, but the Senate is the only legitimate judge and jury when it comes to these rules. The courts won’t get involved. They are not enforcible by any outside force. I.e. they are binding on Senators, not on the Senate.
February 2, 2010, 4:24 pmRich says:
How hard is this? You write the substance of the reconciliation bill as though the Senate bill has already become law and make the effective date of the reconciliation bill dependent on the Senate bill becoming law. For example, “Section XXXX. This Act shall take effect as of the date the Patient Protection and Affordable Care Act, H.R. 3590 of the 111th Congress becomes law.”
This sort of thing happens a lot in state legislatures.
February 2, 2010, 4:32 pmPeteP says:
“How hard is this? You write the substance of the reconciliation bill as though the Senate bill has already become law and make the effective date of the reconciliation bill dependent on the Senate bill becoming law.”
Bwahahaha !!!!! Good one !
How exactly do you say, in bill # 2, ‘The following words in Bill #1 are hereby modified to say ….’, when in fact Bill # 1 doesn’t exist ?
I might as well ‘claim all mineral rights to the planet Bazoingo’, when in fact the planet Bazoingo doesn’t exist.
The concept is not merely a paradox, it is a hallucination on the part of the desparate Dems. Not gonna happen, not in this lifetime.
Not only do you never find 51 Senators to drink that kool-aid, nor would SCOTUS ever uphold it ( the entire side-car would be ruled unConstitutional ), but even then you have the fundamentals of WHAT changes are in it ( substantively ), and finding 218 + 51 to accept them en-block.
Couple that with an imagined totally quiescent Minority who have the tools to shut the process down ( all 41 nice guys and ladies ), but decide to ‘be nice guys’ and not use them, and your fantasy is complete.
February 2, 2010, 4:44 pmjrose says:
David,
By applying the principle of “the exception proves the rule”, I can see an argument that the text of the Constitution requires the Senate to use a simple majority to change a rule or consent to a judicial appointment (although I think there are good arguments the other way as well). But, how does the text lead you to conclude that a filibuster against health care legislation is unconstitutional?
February 2, 2010, 5:10 pmSarcastro says:
If the entire GOP had PeteP‘s bold stance against the future conditional, we wouldn’t be in the mess we are today!
February 2, 2010, 5:15 pmjrose says:
PeteP,
It looks like the person who gets to rule on a point of order is the Presiding Officer of the Senate, who is always a member of the majority party. The Parlimentarian can only advise the Presiding Officer.
That makes sense, or otherwise the Democrats would have been able to block Bush’s tax cuts.
February 2, 2010, 5:17 pmRich says:
PeteP, it is really quite simple. The reconciliation bill would be written as though though the Senate bill has already taken effect. Thus, if the Senate bill creates a new statutory provision, the reconciliation bill would amend that provision. If it amends a provision, the reconciliation bill would amend that provision as amended by the Senate bill. By tying the effective date of the reconciliation bill to the passage of the Senate bill, you avoid any problem. If both bills pass, the statutes created or amended by the Senate bill get amended; if the reconciliation bill passes, but the Senate bill doesn’t, the reconciliation bill never takes effect.
Put differently, let’s assume the reconciliation bill passes first. Because of its special effective date provision, it lies dormant until the Senate bill passes. Let’s further assume that one provision of the Senate bill is to create a new section, Section 99999, in the Medicare Act. Finally, assume the reconciliation bill adds a sentence to the end of Section 99999.
For the moment, the Section 99999 doesn’t exist, but then again, the reconciliation act hasn’t taken effect, so it isn’t trying to amend it yet. Now, assume the Senate bill becomes law with immediate effect. The instant it does, Section 99999 is amended as provided in the reconciliation act.
February 2, 2010, 5:22 pmjrose says:
If Section XXX is new, things work fine (you don’t need an effective date). But if you are either deleting or changing Section XXX, the legislative language of the bill must say something like “Delete Section XXX” or “Change the word ‘in’ to ‘out’ in Section XXX”, and I’m not sure the adder “this takes effect after HR 3590 is signed into law” suffices. For example, what if another bill becomes law prior to HR 3590 that would cause your legislative language to crumble?
The unknown that the parlimentarians are trying to unravel is whether the language being deleted or changed must already be in the US Code.
On the other hand, maybe this will work: 1) write the legislative language of the reconciliation bill as if HR 3590 is already law, 2) the Senate and House both pass the reconcilation bill, 3) the House passes HR 3590, 4) Obama signs HR 3590, 5) Obama signs the reconciliation bill.
That way at the moment the reconciliation bill becomes law, it’s legislative language refers to language contained in US Code.
February 2, 2010, 5:31 pmPeteP says:
“If the entire GOP had PeteP’s bold stance against the future conditional, we wouldn’t be in the mess we are today!”
Thank you :-). Sadly, the Repubs are equally as incompetent, short-sighted, and greedy, as their lbieral opponents. Not just this year, but EVERY year, both sides equally.
Jrose “PeteP,
It looks like the person who gets to rule on a point of order is the Presiding Officer of the Senate, who is always a member of the majority party. The Parlimentarian can only advise the Presiding Officer.”
correct, as I understand it. The point of order goes to the Parliamentarian, who offers his advice to The Chair, who rules as The Chair sees fit.
Assuming, then, an utterly partisan Chair who ALWAYS votes with his party, the minority therefore will object to his ruling, and require a roll call vote to overturn him ( or not, if < 60 agree to do so ). In any cases where the Chair rules FOR the Minority, the Majority will be the ones asking for the vote.
So, it's a null sum. The Chair rules ( pick heads or tails ), and the displeased side calls for a vote.
Rich – I don't even begin to know what to say, other than 'bring a flotation device, because that s*** don't float' :-)
February 2, 2010, 5:31 pmArthurKirkland says:
No one has explained, persuasively, why a determined legislative majority could not effect health care reform by reconciliation. No one has argued, persuasively, why it should not.
If Democrats trip over bickering concerning “you first . . . no, you first,” they deserve to lose, and the nation can continue to move along an immoral, unwise and unsustained trajectory with respect to health care.
February 2, 2010, 5:42 pmRich says:
That doesn’t make much sense. The same would be true of just 3590. If the Senate bill as written now amends a statutory provision, but this mysterious third law comes into effect before the 3590, you’d have the same problem. Congress is perfectly able to avoid the temptation to change the laws 3590 is to amend before it and the reconciliation bill take effect, so that is not much of a concern. Your doubts about a conditional effective date are not at all well founded. Bills do not necessarily take effect upon being signed: there is a difference between “becoming law” and “taking effect”, and making effectiveness conditional upon something other than the arrival of a date certain is something that is done in both congressional and state legislation. This isn’t some weird, magical thing; it’s actually pretty mundane. New Hampshire, IIRC, did the this sort of thing twice with its same-sex marriage bill last year: they passed the gay marriage bill, but one house wanted a change, so they tacked a section amending the SSM act (which was not yet an act) onto another bill that only took effect upon the SSM bill becoming law. Then, the governor wanted a change, so they tacked a section amending the SSM act (again, before it became law) onto a third bill. The two sections of those two later bills would never have taken effect if the SSM bill had not become law even though the two bills themselves had become law.
February 2, 2010, 5:51 pmOren says:
Absolutely not! If a (bare) majority of the Senators are incapable of changing the rules of the Senate, it is not a deliberative body.
The principle of a deliberative body is that, at any time, a majority of the members can rewrite the rules however they see fit. Put conversely, no Senate can bind a future Senate (or even themselves). Our Senate follows this principle.
But if the rule can be changed at any time by a (bare) majority, they are nothing but a formality expressing the obvious will of the majority.
That is, at any time we can be absolutely confident that a majority of Senators approve the rules as they exists. The evidence for this is quite apparent — they have the power to change the rules but have not exercised it.
Such a thing would not be a “law” and no Court would treat it as such.
And here I thought you were arguing that they took an oath to uphold David Welker’s interpretation of the Constitution.
Your disagreement with them over the interpretation (and it’s quite clear than 55 of them believe rule 22 is Constitutional) is not grounds to assert their objective noncompliance.
“Each House may determine the rules of its proceedings”.
That is, the Constitution carves out plenary power for them to make determinations of the rules relating only their own proceedings. No more, no less.
No rule that is properly within the scope “of its proceedings” can possibly violate the Constitution.
You persist in pretending that there is no distinction between internal Senate rules and external law and that the phrase “of its proceedings” is meaningless verbiage.
Indeed it can.
This is not what David has argued. He has argued that even a majority of Senators cannot change the rules in such a fashion to require more than a majority for any particular vote, even when a bare majority inviolably retains the right to revoke that rule at any time.
February 2, 2010, 5:58 pmDavid Welker says:
jrose:
Article I, Section 7 provides:
Contrast passing a law, where no number is specified, with the two thirds requirement, where one is specified.
As for your assertion that there are good textual arguments the other way, that is just nonsense. How did the founders expect the Senate to adopt rules in the original instance? Obviously, there would be no Senate rules in place, so clearly the answer is not: “the Senate Rules tell us how many votes are required for the Senate to exercise Constitutional powers when not explicitly specified.” Since the rules at this early stage did not exist, it would have been impossible to appeal to them. The Constitution itself is the source of the answer. There was a background understanding that the Senate was to exercise its powers by majority vote unless otherwise explicitly specified. This understanding was asserted in Federalist 75 and other documents that helped guide the state conventions in their decision on whether to ratify the Constitution. In contrast, in no case did advocates of ratification assert that supermajorities could be required for the Senate to pass legislation or set Senate rules, a point so important and fundamental that it most certainly would have been mentioned, debated, and justified if it was even contemplated. The fact is that the Senate and the House were parts of carefully calibrated compromises. Supermajority requirements in the Senate would have disrupted that compromise, as it would have a tendency to aggrandize the power of the small states even further at the expense of the ideas in the Virginia Plan and would be a large movement back towards the problems in the Articles of Confederation which the Constitution was supposed to solve in the first place. Advocates of the Virginia Plan were already compromising much more than they liked when they allowed for a Senate to be selected in a manner reflective of the preferences in the New Jersey plan. They certainly would not have compromised even further by allowing minorities to block ordinary legislative action in the Senate nor would they have been interested in creating yet another government embarassingly incapable of action, as was that government established by the Articles of Confederation. The Constitution does have checks and balances intended to prevent imprudent decisions made based on the passion of the moment. However, it also was intended to create an effective government that would not be a total embarrassment like that established by the Article of Confederation.
Further, a supermajority requirement would render uselesss the clause in Article I, Section 3 providing that:
If 60 votes could be required to pass legislation or take other actions, the Vice Presidents vote in case of a tie would be completely irrelevant. The Constitution should not be interpreted in ways that render explicit provisions such as this completely nugatory. The Founders and Ratifiers of our Constitution should not have been presumed to have been idiots who regularly included or approved of entire clauses in the Constitution which were to have no effect whatsoever (which is not precisely the same as saying that there are not clauses that could be worded differently or instances where there is some small amount of language that, upon reflection, was unnecessary).
The bottom-line is that, contrary to your assertion, there are absolutely no good textual arguments that the filibuster is constitutional. Anywhere the Senate or House is given a power to act, that power is to be exercised by majority vote absent an explicit provision to the contrary.
February 2, 2010, 6:08 pmRPT says:
Yes, the public is just crying out for less health care and higher insurance premiums. That’s why Scott Brown was elected on a platform of repealing the Mass. program. Wait until they see Paul Ryan’s proposed medicare and medicaid cuts; a GOP landslide for sure.
February 2, 2010, 6:14 pmOren says:
Do you mean “could not” in the technical sense or the practical sense?
February 2, 2010, 6:25 pmDavid Welker says:
Oren:
It depends on what you mean by “bind.” The rules are “binding” in that the Senate cannot act outside of those rules (unless the rule is unconstitutional) until they formally change them. I agree that it is not binding in the sense that the rules cannot be changed.
So, it is your position that the only part of the Constitution that the rules have to comply with is that they may be about the proceedings of the Senate. But why should the rules even have to comply with that provision? It is a ridiculous position to say that the rules need only comply with part of the Constitution, instead of the whole Constitution.
If the Senate made a rule that said that a simply majority shall be tallied and reported to be a two-thirds vote for the purposes of treaty ratification regardless of the actual vote, or made a rule that the votes of the Senators from Alabama shall not be counted, those would be clearly unconstitutional rules, even though they are clearly concerning the proceedings of the Senate. That the rules must concern the proceedings of the Senate is a necessary condition, not a sufficient condition, for constitutionality.
Senate rules, likes laws, have to comply with the ENTIRE constitution, not just the tiny phrase “of its proceedings” in the phrase “Each House may determine the rules of its proceedings.” Any other position is complete nonsense. Senate rules of proceedings may not override the very Constitution that gives rise to them anymore than laws.
This point is so obvious that I simply refuse to argue it further.
February 2, 2010, 6:25 pmjrose says:
The Senate would have to re-write its bill, something that couldn’t be done if the bill were already signed into law.
Do you have citations for what New Hampshire did?
February 2, 2010, 6:33 pmOren says:
You should read the history of the US Senate more closely. What does, in fact, happen is that absent explicit Senate rules, the Senate is presumed to operate under standard parliamentary procedures (aka, Robert’s Rule of Order)
In fact, the following exchange happened on the Senate floor in 1917, during an attempt to introduce a cloture rule.
With that motion looming (which would have allowed a bare majority of Senators to amend the rules of the Senate), the minority agreed to change the rules. Nixon confirmed this when he was Presiding over the Senate during LBJ’s tenure as majority leader:
That is, the exact power that you have derided is the fundamental source of the nuclear option AND the cloture rule. It is the power of a majority of Senators to make rules by which the Senate (NB: not anything outside the Senate) is to be governed.
Except that the majority, under your reading, is powerless to adopt a rule requiring 60 votes for cloture. Seems to me that you’ve removed a power, not added one.
February 2, 2010, 6:40 pmDavid Welker says:
In fact, that is exactly what I have argued. And it must be applied consistently. You cannot say that the Constitution’s silence with regard to one provision should be interpreted to imply a majority (for example, advise and consent), but not other provisions. That would be unprincipled and logically inconsistent.
Finally, you have contradicted yourself. You say:
(1)
(2)
But there is no doubt that Senate Rule 22 concerns the proceedings of the Senate, but it also requires a 2/3rds majority to change the rules. According to assertion (2) this rule cannot be unconstitutional but according to (1) it must be.
The bottom-line is that (1) and (2) are contradictory assertions. (1) is correct (given the limited meaning you give to the term “bind”) while (2) is plainly wrong.
February 2, 2010, 6:42 pmDavid Welker says:
Oren,
Robert’s Rules of Order did not even exist at the time the Constitution was adopted. It is not clear to me what you mean by “standard parliamentary procedure.” Do you mean the procedure in place in the English Parliament at the time of ratification? The procedure used by the Continental Congress? By the state legislature in Massachusetts? The typical practice that these institutions tended to engage in?
“Standard parliamentary procedure” is not defined. That term certainly appears nowhere in the Constitution. But the idea that was advanced during the ratification debates that majority rule was the rule for ordinary business to avoid embarrassment was certainly mentioned in Federalist 75 and elsewhere.
You do have a point, don’t you? Of course the majority is forbidden to pass unconstitutional laws or rules. But, saying that does not “remove a power” because the Senate never has had the power to make binding rules that exceed the Constitution in the first place. If you think that the Senate can violate some provisions of the Constitution through its rules, then you are going to have to explain why it can’t violate the provision limiting rules to matters concerning “proceedings” as well. The assertion that rules can violate some provisions of the Constitution but not others is nothing short of bizarre.
Finally, concerning the excerpts from Senate debates you have produced, I agree that a majority of the Senate can change the rules at the beginning of the session. I disagree that this is the only time that a majority can change the rules. If one wants to establish such a limitation they would have to (1) define “beginning” and (2) locate the idea of such a limited “window” in the Constitution. In other words, the idea of a “window” in which a majority of Senate must act or lose its power to do so is a complete fiction with no support in the text of the Constitution whatsoever. In contrast, the idea of majority rule is supported both by the text of the Constitution and the debates proceeding ratification.
The bottom-line is this. No rule can change the ability of a majority of the Senate to change the rules, pass laws, advise and consent, or exercise any other power granted to the Senate by the Constitution. The only exceptions to majority rule in the Senate must come from the Constitution itself. Any mere Senate rule that attempts to intrude on the Constitutional scheme is simply unconstitutional. Just as the power to make laws is limited by the Constitution, so is the power to make rules.
February 2, 2010, 7:13 pmOren says:
It was clear enough to the Senate in 1917 and 1953-1967.
On this, we are in agreement — the majority can change the rule at any point in time.
Indeed, as we agreed to above, a majority of the Senate can, at any time, pass laws by raising a point of order to change the rules and then passing the bill.
So then it seems we are in substantial compliance with your requirements — nothing is stopping the majority of the Senate right now from amending rule #22 and passing a new healthcare bill (or whatever) except for the terrible inconvenience that only a minority would vote for such a thing.
February 2, 2010, 7:45 pmjrose says:
David,
Given the language about the 2/3 requirements for a veto, and your acceptance of the “exception that proves the rule”, I can see why you believe the filibuster is always unconstitutional. Nonetheless, and in spite of your passion, the alternative textual interpretation (the supermajority requirements are illustrative, not exhaustive) is plausible. Understandings and interpretations such as Federalist 75 may enhance your case, but they are not based in the text.
The tie-breaking power of the Vice President need not be interpreted to require a tie-breaking opportunity. The language might be merely a contingency if majority rule is used, and since majority rule might be used at any time, the language is not a nullity.
February 2, 2010, 8:02 pmDavid Welker says:
That’s not true. In reality, the rule is for members of both parties is to read their own preferences into the Constitution and the exception is to actually try to follow the Constitution according to a consistent set of principles.
I do not think the Constitution is perfect. But it is as good as we are likely to get. As Benjamin Franklin put it in urging approval of the Constitution:
I must admit that I, like Benjamin Franklin, do not entirely approve of the Constitution. In fact, when I think about the compromises that the Constitution made with slavery, I become positively angry. However, especially as this nation has paid for the sins of slavery with the blood of the Civil War and the era of Jim Crow has passed, I very much doubt that we could now do much better. What I fear most is not the remaining imperfections in the Constitution, but that those who think they know better shall substitute their will for the words of the Constitution. In my view, we must start with the text. As the Supreme Court has repeatedly shown, most recently in Citizens United, even Supreme Court precedent is unstable and unreliable. But at least the words of the Constitution remain as a reliable anchor.
Further, politicians from both parties have shown that they are more interested in aggrandizing their own power and views than following the Constitution. Often, the approach politicians take to interpretation seems to derive more from the policy results they prefer than in any consistent set of principles. For example, how many Republicans who opposed the filibuster for judicial nominees are mysteriously silent about the constitutionality of the filibuster now? Their desire for the power to block the Democratic agenda and advance their own careers overrides any sense of principle or sense of loyalty to the words of the Constitution. Yet, this is party that proclaims to believe in following the Constitution. The bottom-line is that as Franklin noted, prejudice, passion, and selfish views often override duty to the general good. Nonetheless, it is also true as Franklin said that “general opinion of the goodness of the Government” and “wisdom and integrity of its Governors” are both necessary for the government to secure the happiness and well-being of the people. Unfortunately, both the general opinion on the goodness of government and the integrity of our Senators is undermined when both politicians of both parties conspire to undermine majority rule in the Senate, in contravention of the Constitution, in order to advance their own careers and power while rendering elections nearly meaningless and embarrassing the operations of the Senate in particular and the government in general.
The text of the Constitution is an anchor. A place to start in a country that is deeply divided. I have my doubts that it will be enough. I do not mean to be dramatic, but I cannot help but feeling that the country is facing a period of what may be permanent decline. Our government, because the Senate refuses to follow the Constitution, cannot act. Probably only fiscal disaster will finally lead to change. And then, it may be too late.
February 2, 2010, 8:25 pmChris Travers says:
As I say, it’s a gentleman’s agreement with no real binding power, only persuasive power. However, it seems I have missed one element as well.
If the Dems change the rule, then it gives the legislation around it a “taint of image” which the minority party will exploit. Worse, it will violate the gentleman’s agreement and very likely lead to a Republican majority in not too long (maybe 2012) with no surviving agreement that protects the minority party. Hence it is in the Dem’s best interest to hold with rule 22 and try to work within the rules or at least appear to be doing so.
February 2, 2010, 8:38 pmArthurKirkland says:
One way to start breaking the logjam is to require those who propose to filibuster to have at it, with cameras, microphones, caffeinated sodas and PortaJohns at the ready. Let them filibuster every nomination, every bill, every motion. Until they get it out of their system — and I contend they would — quarantine anything any of the filibusters wants or needs in the form of legislation, and require round-the-clock oration.
After six months, the Senate majority could revisit the situation if necessary.
Until then, let the filibusters (and politically awkward votes — to the point of unfairness — by the boatload) begin!
February 2, 2010, 8:43 pmDavid Welker says:
jrose,
I emphatically disagree with you that the text that asserts that, for example, a two-thirds vote is required to expel a member from either House can plausible be interpreted as being merely illustrative. If the Senate tried to change the rules and allow expulsion of a member with a 1/5th vote rather than a 2/3rds vote, that would be clearly unconstitutional. Few things could possible be more obviously unconstitutional. The Constitutions text requiring a two-thirds vote to expel a member or ratify a treaty is not meant to be “illustrative” of the sort of rules that the Senate can make. It is instead meant to require exactly what it says, a two-thirds vote to expel a member or ratify a treaty.
I am of the position that the words of the Constitution have meaning. They are not, generally speaking, merely illustrative or optional, to be discarded on a whim. If not by a majority vote, how exactly is the Senate supposed to adopt rules of its proceedings in the original instance? The only plausible answer is by majority vote. Admitting that this is the only way to adopt rules in the original instance, and you must concede that when the Constitution is silent on what number of Senators is required, the answer is a majority.
I am not here saying that the Constitution is free from ambiguity. But, by your standards, it seems that just about any interpretation of the Constitution is “plausible.” I dissent.
February 2, 2010, 8:44 pmOren says:
By the way, I cited the Senate’s deliberations on changing the rules not to assert that they can only be changed at the start of the session but that there exists a common-sense concept of general parliamentary procedures (in fact the House starts from such a “clean slate” every session until it adopts rules differently) and that the Senate has, from time to time, actually operated under those conditions.
I apologize for not making that clear in the first instance.
February 2, 2010, 8:49 pmDavid Welker says:
Oren,
We are apparently in agreement that a majority of the Senate may change Rule 22 at anytime. I am not sure whether we are in agreement that rules of the Senate concerning proceedings can be unconstitutional. However, I do think that logically we must be agreement on that point in order for us to be in agreement that a majority can change Rule 22 at anytime, since the text of that rule would suggest otherwise.
I will not press the point any further, I just thought I would clarify. Thanks for sharing your perspective.
February 2, 2010, 8:55 pmjrose says:
Ilustrative was the wrong choice of word. I should have said an illustrative example of what is required, or better yet a requirement.
Text which states “X can be done, Y can be done with a 2/3 majority” could mean:
1) Only Y requires a 2/3 majority, X cannot require a 2/3 majority
February 2, 2010, 8:57 pm2) Y requires a 2/3 majority, the rules for X are optional.