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Please begin with an informative title:

Special note to Paper Cup: The answer is no.

Recent speculation in both the WaPo and Time have sparked a mini-panic, by positing that Sen. Tim Johnson's medical condition could embolden the Senate Republicans to either make an outright attempt to thwart  the transfer of control of the chamber to the new majority, or at least set themselves up for such a grab should Johnson (or any other Democrat) be replaced by a Republican during the session.

Here's how it sets up, in the Time article, by Karen Tumulty:

The incapacitation of South Dakota Senator Tim Johnson has put all eyes in Washington on what is normally a little-noticed Senate vote now scheduled for Jan. 4. It is called the "organizing resolution," and is the bit of internal housekeeping that determines how committee memberships will be allotted between the two parties, as well as who will get to serve as chairman and ranking members of each of the panels. These resolutions traditionally stand until the next Congress, even if the makeup of the chamber shifts to put the other party in the majority, which is why precedent would seem to dictate that the Chamber would stay in Democratic hands, even if Johnson is replaced by a Republican. [...]

With Johnson unable to vote, Democrats still have enough to prevail, with 50 votes (including the two independent Senators, Joe Lieberman of Connecticut and Bernie Sanders of Vermont) to 49 for the Republicans. But Democrats now fear the real possibility that Republicans will filibuster that resolution.

Why would they do that? Two reasons. The first is that they could use the filibuster to leverage a concession guaranteeing that if, by whatever combination of circumstances, they regained the majority during the 110th Congress, they could assume control of the chamber, as Dems did when Jim Jeffords left the Republicans. The switch in control does not automatically come with the majority. Rather, a the new majority would have to exercise its ability to pass a new organizing resolution to make its control effective.

Which brings us to reason number two. It's precisely because such organizing resolutions stand until superceded by a new one, that the Time piece posits:

If the Republicans filibuster the organizing resolution and the question drags on into January or even beyond, it presents another truly extraordinary possibility: a chamber with a new Democratic leader, but the existing set of Republican committee chairmen. That is because, until an organizing resolution is passed, incoming Majority Leader Harry Reid would have no control over the committees.
Has this ever happened? The WaPo's Al Kamen covers that question:
[T]he unsettled situation pales when compared with the bizarre 83rd Congress in 1953 and 1954, during which nine of the then-96 senators died, including one who committed suicide, and one resigned.

When the Senate convened on Jan. 3, 1953, the GOP was in charge 48 to 47, plus one former Republican, Sen. Wayne L. Morse-- an independent so independent that he moved his seat to the Senate aisle and would not vote with the Democrats to organize.

By Aug. 3 of that year, when the first session adjourned, three members -- including Majority Leader Robert A. Taft (R-Ohio) -- had died. When the next session began in January 1954, the Democrats had become the majority, 48-47-1, but they did not assume control. At one point during that session, as various members died, the D's even had a two-vote lead, but they never challenged Republican control of the body. The Senate adjourned Aug. 20 back where it had started, with the GOP holding a one-vote majority.

So why didn't the Democrats take over? For one thing, seems the "minority" leader, Sen. Lyndon Baines Johnson (D-Tex.), didn't particularly want to. He preferred to have the Republicans deal with Sen. Joseph McCarthy (R-Wis.), according to Senate associate historian Donald A. Ritchie. [...]

More important, there was "no way the Democrats could have claimed a majority," Ritchie said, "because the Republicans could have blocked them" with a filibuster, and in the Senate, most everything can be filibustered -- even by the minority.

A sly move, perhaps, by LBJ. But if it strikes you as unfair that the Senate Democrats of the 83rd Congress couldn't claim the majority because of the filibuster rule, then you're coming to understand the position that might be taken by the current Senate Republicans, who may find themselves in similar straits.

But wouldn't it be equally unfair for Republicans to filibuster an organizing resolution in the new 110th, and retain control of the chamber even from the minority?

Yes it would.

Would that by itself stop them from doing it?

No it would not.

So what else have we got?

Well, remember the old "nuclear option" fight, back in '05? At the time, pro-nuke Republicans waved around a scholarly study of the arcana of Senate rules and procedures that focused on the various hardball tactics by which the filibuster rules had gradually been changed over the years. That study (PDF), published in the Harvard Journal of Law & Public Policy, offered Republicans their constitutional rationale for changing the filibuster rules, and eliminating its use against judicial nominations.

But there was a catch. (Republicans ignored it, of course, but it was there):

The "constitutionality" of the "constitutional option" appears to rest on the Senate's alleged "right" to adopt new rules for itself under general parliamentary procedure at... the beginning of a new Congress.
And in case that's not enough for you, here's some help from our good friend Richard M. Nixon, of all people, in his capacity as President of the Senate (a/k/a Vice President of the United States), ruling on a battle over cloture reform in 1953 (a/k/a that wacky 83rd Congress):
Any provision of Senate rules adopted in a previous Congress which has the expressed or practical effect of denying the majority of the Senate in a new Congress the right to adopt the rules under which it desires to proceed is, in the opinion of the Chair, unconstitutional. It is also the opinion of the Chair that [the filibuster] in practice has such an effect.

The Chair emphasizes that this is only his own opinion, because under Senate precedents, a question of constitutionality can only be decided by the Senate itself, and not by the Chair.

And how does the Senate decide questions of constitutionality? By majority vote.

Now, it should be noted that Darth Cheney, as President of the Senate, may opt to take the gavel for the organizing resolution debate, if he chooses. And from the chair, he may even decline Nixon's advice and rule directly on the constitutionality of the question, as the plans for the nuclear option called for him to do.

But that ruling will be subject to appeal, as it would have been during the nuclear option maneuvers Republicans then proposed. Of course, circumstances have changed today, and Democrats, even without Johnson, would hold 50 votes to the Republicans 49. Assuming no sudden fits of insanity (hmmm...), the appeal prevails, the chair is overruled, and the question of the constitutionality of the Republican filibuster comes to the floor, to be decided by majority vote.

Get it? Got it? Good.

Damn, I hope that's right.

For more on the arcana of the nuclear option, feel free to peruse my 480,000-part series on the subject, currently in cold storage at The Next Hurrah.


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Originally posted to Daily Kos on Fri Dec 15, 2006 at 10:07 AM PST.

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