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View Diary: The future of the filibuster (117 comments)

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  •  They can change it now (0+ / 0-)

    Granted, the law for changing it at the start of a session is clearer. But hear me out. (Or read my diary on this.)

    We agree that the constitution gives the Senate the right to change the rules with a majority vote at the start of a new session. But Rule V states clearly:

    The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.

    "As provided in these rules" refers to Rule XXII:

    "Is it the sense of the Senate that the debate shall be brought to a close?" And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn -- except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting -- then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.

    This means that the Senate rules require a 2/3 vote (of those present) to change the rules.

    That means that the Senate rules in question are unconstitutional.

    That means that you could use the nuclear option mid-session to change either or both of the passages I've just quoted. If you changed them so that they allowed a vote at the start of the session, then they'd be constitutional again, so Republicans couldn't repeat the trick later when they were in power.

    (Note that, of course, if you had 51 votes, you could use the Nuclear option to claim that it was unconstitutional to say "is" on the Senate floor, and nobody could do anything about it except for civil disobedience. Even if you're wrong, it's not justiceable. But in this case, you'd be right. Tricky, but right.)

    Opinions are like assholes. I spend way too much time looking at them on the internet.

    by homunq on Thu Jan 28, 2010 at 02:05:30 PM PST

    •  Nice quote (1+ / 0-)
      Recommended by:
      RandomSequence

      from the debate right before the filibuster rule was actually created:

      A court would make itself the subject of ridicule that should attempt to adopt rules one of which should provide that they could be changed only by a vote of two-thirds of the judges. It would not be tyrannical to make such a rule; it would be futile. The court, when wiser men graced the bench, would contemptuously, by a majority, set it aside. It is scarcely less preposterous that a legislative body should by rule deny itself the right to bring debate to an end and to proceed to a vote ... [T]o maintain that a rule has any virtue under which one man may, by his physical prowess alone, defeat a vote is to invite calamity unspeakable and expose the Senate to the well-deserved contempt of mankind.

      (Senator Thomas Walsh, as quoted in the Gold & Gupta PDF linked in the article).

      Opinions are like assholes. I spend way too much time looking at them on the internet.

      by homunq on Thu Jan 28, 2010 at 03:05:22 PM PST

      [ Parent ]

    •  Nonsnese (0+ / 0-)

      That means that the Senate rules in question are unconstitutional.

      As I poised to another poster below, cite how exactly where and how it violates the constitution, particular in light of Article 1 Section 5 where it explicitly states that each House can determine their Rules of Proceeding please?

      cheers,

      Mitch Gore

      January 20, 2009... the end of an error.

      by Lestatdelc on Thu Jan 28, 2010 at 04:11:51 PM PST

      [ Parent ]

      •  The *rules* filibuster makes change impossible (0+ / 0-)

        The constitution says, each house can determine their Rules of Proceeding.

        The current rules as written, by combining the "continuing body" doctrine with a 2/3 requirement to overcome filibuster for rules changes, would make it effectively impossible for the current or future Senate to change its rules.

        Constitutional scholars agree, then, that the rules do not apply. "each house can determine their Rules Of Proceeding" means that the constitution requires that the Senate can, if it chooses, have a majority vote on new rules at the start of a session.

        The constitution requires this possibility. The rules explicitly forbid this possibility. Therefore the rules are unconstitutional.

        The standard counterargument would go something like this: yes, the rules are unconstitutional in forbidding a start-of-session vote. But that's the only thing unconstitutional about them. By failing to vote at the start of a session, the Senate is implicitly agreeing to these rules. So, essentially, the argument is that the rules are only unconstitutional for a moment at the start of the session, and then they become constitutional again for the rest of the session.

        This is nonsense. Let's use a metaphor.

        Say you're in a room that's private property, and you want to get out. If the door (voting at the start of the session) is open, it would be illegal vandalism to break out through the wall (change rules mid-session in a way that breaks the current rules). However, if the door is closed and locked (and nobody is there to unlock it), you are being detained illegally. At that point, you have the right to break out however you can. You are not legally required to break the lock on the door rather than finding a weak place in the wall.

        The fact that the current rules give no practical means for the current Senate to "determine their Rules of Proceeding" makes them unconstitutional, and thus ALL the restrictions they place on this process are invalid. If you admit the possibility of voting at the start of a session - in contradiction of the current rules (specifically either Rule V or Rule XXII) - then you must also logically admit the possibility of a mid-session "nuclear option", which is neither more nor less in contradiction of the current rules (specifically, Rule XXII).

        Note that I'm not saying that Rule V, by itself, is unconstitutional. The mere fact that the Senate considers itself a continuing body may be illogical, but it wouldn't be unconstitutional if there were an effective means for it to "determine Rules of Proceeding" without prior restraint. It is the combination of rules V and XXII which is unconstitutional, and therefore the remedy can be to ignore XXII just as much as it can be to ignore V.

        Opinions are like assholes. I spend way too much time looking at them on the internet.

        by homunq on Fri Jan 29, 2010 at 09:11:01 AM PST

        [ Parent ]

    •  Yes, they could. (0+ / 0-)

      They just won't.

      You can do anything you want to with 51 votes. But they don't want that. If they did, then by definition, they would have done it already.

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