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A little background:

Kos posted a bit about Reid's first battle which is about how funding for staffing of Senate committees will be allocated.  Frist's position is that it should be allocated 66-33 R to D.  Dems believe it should be either 50-50 or at least 55-45, to reflect the electoral split.  Several commenters (including me) argued this was a big deal (because it determines how much of "bench" we have in DC, among other reasons), others argued Reid should trade away the allocations in exchage for a guarantee that Frist would not exercise the "Nuclear Option" on Judicial Filibusters (see below for explanation).  We were then led off on a tangent by one commenter who said the Republicans were just doing the same thing that Democrats did in 1975 citing this article.

Ah.  The Washington Times ...

Okay so we know it must be bunk because of the source but what particular brand of bunk?  How easy is it anyway to refute a statement about an event which nobody seems to care about that took place 30 years ago?  Well, you do have to do some digging -- but what the heck, it's a slow day.

First, a summary of the Nuclear Option:

Frist's idea is to request a ruling of the Chair (whatever Senator he chooses, or the VP) on the constituionality of filibustering a judicial appointment.  The Chair will make the (legally baseless) ruling that the Constition forbids a filibuster and judges must get an up or down simple majority vote.  Since there is no judicial body to oversee the Senate the only appeal of the ruling is a majority vote of the Senate.  Voila, no filibusters are allowed on appointments and it only took 50 (or less, depending on how many Senators are there) votes to do it.  

What's the big deal?  The primary difference between the House and Senate is that the House rewrites its rules every Congress to suit the taste of the majority party the Senate doesn't.  Once this particular genie is freed from the bottle that means the majority doesn't need the 2/3 majority required to amend the Senate rules and can simply rewrite the rules through new interpretations whenever they feel like it.  It's like the President being able to call up the Supreme Court to reinterpret a provision of the Constitution to his liking rather than seeking an amendment.

Okay so it's a big deal, did the Dems do it in 1975 as the Washington Times says?  No way.  The explanation's dense but if you've read this far you might as well go for it (btw, I'm plagerizing liberally from greater minds than my own, including Senator Byrd, but I doubt they'll mind):

On February 20, 1975, Senator James Pearson (R-Ks) made a motion to cut of debate on a motion to proceed to the consideration of S. Res. 4 "by the Chair immediately putting this motion to end debate to the Senate for a yea-and-nay vote; and, upon the adoption thereof by a majority of those Senators present and voting, ... the Chair shall immediately thereafter put to the Senate, without further debate, the question of adoption of the pending motion to proceed to the consideration of S. Res. 4."  S. Res. 4  would have amended the Senate's cloture rule to reduce the number of Senators need to invoke cloture from 2/3ds to 3/5ths of those present and voting.

Senator Mansfield, the Majority Leader, made a point of order that Senator Pearson's motion was out of order.  Senator Mondale moved to table Senator Mansfield's point of order, and the Senate voted 51-43 to table it.  

Before the vote on Mondale's motion to table, Vice President Rockefeller, who was in the chair, said that he would interpret a successful vote to table "as an expression by the Senate of its judgment that the motion to end debate is in all respects a proper motion."  Had the Senate proceeded to agree to the underlying Pearson motion once Senator Mansfield's point of order was tabled, the Washington Times might have been right.  But it didn't.  Senator Pearson's motion was divisible; part of it was still debatable; and Senator Allen (D-Ala.), the leading opponent of S. Res. 4, proceeded to debate it at great length.

Four days later, on February 24, Senator Mondale made another motion, similar to Senator Pearson's, to cut off debate on S. Res. 4.  Senator Mansfield again made a point of order against it, and Senator Mondale again moved to table Mansfield's point of order.  Two days later, on February 26, the Senate again agreed to table Mansfield's point of order, this time by a vote of 46-43.  Vice President Rockefeller said the vote "affirmed the propriety of the [underlying Mondale] motion and tried to put the motion to an immediate vote.

At that moment, before the vote could be taken, Senator Long protested Vice President Rockefeller's refusal to recognize Senator Allen for a parliamentary inquiry before the vote on the motion to table Mansfield's point of order.  Long called Rockefeller's action "one of the most improper decisions made by the Chair during the 26 years I have served here."  Long's objections were echoed by other Senators.  Debate now shifted from S. Res. 4 to Rockefeller's failure to recognize Allen.  The vote on the underlying Mondale motion never took place, and this is effectively what saved the Senate from establishing a precendent.

On February 28, Senator Hruska moved to reconsider the vote to table Senator Mansfield's point of order.  On March 3, the Senate voted 53-38 to reconsider the vote, and then voted 40-51 not to table the Mansfield point of order.  If, as Vice President Rockefeller said, a vote to table Senator Mansfield's point of order affirmed the propriety of shutting off debate, then the vote not to table the point of order reversed the earlier affirmation -- the Senate unrung the bell.

Meanwhile, also on February 28, Senator Byrd proposed an amendment to S. Res. 4.  Senator Byrd's amendment changed the number of Senators needed to invoke cloture for non-rule changes from 3/5ths of those "present and voting" (in S. Res. 4) to 3/5ths of those "duly chosen and sworn," but kept the 2/3ds "present and voting" requirement (in the original Rule XXII) for rule changes.  On March 5, the Senate agreed to Senator Byrd's amendment by unanimous consent.  On March 7, the Senate voted 73-21 to invoke cloture on S. Res. 4, and then 56-27 to agree to the resolution as amended.  

So, as both of you that have read this far can see, it was far from a simple majority vote (2/3 majorities, in fact) that changed the rule.  Sorry Right-wingers, if Frist decides to go there he'll be in uncharted waters.

Originally posted to DCMike on Fri Dec 10, 2004 at 11:03 AM PST.

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Comment Preferences

  •  should Constitution be amended? (none)
    Should the Constitution be amended to make the filibuster a permanent part of how the Senate works?
    •  Why? (none)
      It's a standing rule of the Senate.  It's how the body chooses to operate.  I doubt either body has any desire to subject its operating rules to consideration by state legislatures.

      Fundamentally, this place operates on comity.  That's inherent not only in the filibuster but in the fact that unanimous consent is required to move any business to the floor.  Going nuclear doesn't just change a rule, it changes the operating understanding of the place.  It basically says to the minority, "you have no say."  That's what makes it a big deal. Amending the Constitution won't repair the damage done.

      I can certainly think of more important things to put forward as an amendment.

      •  well... (none)
        But what was the reprocussion for the dems not backing off at the last instant?  They passed their vote to table the point of order using a simple bare majority.  It seems that if the republicans did not change their mind on the Senate resolution then there was nothing stopping the Senate from just proceeding.  I don't think that the supreme court would even have jurisdiction to decide the rules of the senate in the end.  It just seems to me like the rule is there to be changed in the majority has the political will to push it through.
      •  What is your priority (none)
        for amending the Constitution?
        •  If We're Going to Amend It (none)
          Amending it provide fair rules for governing that protect the minority party and its role as the "loyal opposition" seems a pretty good thing to put in an amendment.

          I would have it go a step further and put an end to the current process of having the party
          in control decide all the rules, not just this one rule.

          If we're serious about being the party of reform, then pushing for an amendment reforming how government is run seems a good worth while effort.

          "These are the commanders who have deserted their troops. And there is no more serious crime in the laws of war"
          -John Kerry, 1971

          by Goldfish on Fri Dec 10, 2004 at 11:34:27 AM PST

          [ Parent ]

          •  amend the Constitution on pardons (none)
            The Constitution should be amended to allow prosecutors to ask federal courts to invalidate pardons granted before sentences are complete if the pardon was granted under conditions that a reasonable person would construe as a conflict of interest.
            •  That Could Be Part of the Same Amend. (none)
              We could do it all as a blanket reform amendment.

              Look how many issues the 14th deals with? This could be like that, we could even tack on a section dealing with the "Delay Rule" for good masseur.

              "These are the commanders who have deserted their troops. And there is no more serious crime in the laws of war"
              -John Kerry, 1971

              by Goldfish on Fri Dec 10, 2004 at 11:42:16 AM PST

              [ Parent ]

              •  is it necessary? (none)
                Is a Constitutional amendment necessary on the DeLay case?
                •  No, but (none)
                  If your targeting bad government with a large multi-clause amendment, why not.

                  It could be removed from the final version of the amendment, if by some miracle it was going to pass Congress.

                  I don't think this idea could get anywhere right now, but wouldn't the symbolic value be great if we introduced an amendment like this which was essentially a laundry list of Republican abuses of power?

                  "These are the commanders who have deserted their troops. And there is no more serious crime in the laws of war"
                  -John Kerry, 1971

                  by Goldfish on Fri Dec 10, 2004 at 11:53:11 AM PST

                  [ Parent ]

        •  Personally (3.50)
          I'd like to see an amendment that corporations are not "persons" for purposes of enumerated rights.  At times, I've thought we may need to amend to show that spending money in unlimited amounts to influence our elections is not the same thing as protected First Amendment speech, but I go back and forth on that.  Certainly we ought to amend the Constitution to give DC citizens the same voting rights as the rest of the Country (ie. two Senators and a Congressperson).

          I'm sure there are lots of other worthy ideas out there.

          •  As Far as the DC thing goes (none)
            I think it would be better to amend the constitution to make DC part of Maryland for the
            purposes of Congressional representation; i.e. DC residents would be represented by Maryland's Senators, and would their congressional representation would be party of the Maryland delegation.

            "These are the commanders who have deserted their troops. And there is no more serious crime in the laws of war"
            -John Kerry, 1971

            by Goldfish on Fri Dec 10, 2004 at 11:58:05 AM PST

            [ Parent ]

            •  I'm not sure I have strong feelings about that (none)
              Certainly lots of people argue that DC has a distinct political identity as it's own community and that shouldn't be overriden by adding it to Maryland.  Also, Maryland doesn't want DC, it's a massive tax hole.

              If DC were a state it would have a larger population than Wyoming and be pretty close to North Dakota (might even pass it by the next census).  

              Either way, it's a disgrace people here are second-class citizens and it should be fixed.

              •  I didn't mean incorperate it (none)
                I meant have it part of Maryland only for purposes of congressional representation; it would still be otherwise a separate entity

                "These are the commanders who have deserted their troops. And there is no more serious crime in the laws of war"
                -John Kerry, 1971

                by Goldfish on Fri Dec 10, 2004 at 12:28:06 PM PST

                [ Parent ]

                •  I'm just not sure (none)
                  how much accountablility the Senators would feel from the resident's of the city.  The fact is, DC has a major tax problem due to two factors: 1) a big chunk of the territory is Federal land and therefore doesn't generate taxes, and 2) DC lacks the authority every other city in country has to tax commuters in to the city.

                  MD Senators may or may not care to deal with these problems but there would certainly be a big problem of conflicts with the desires of Annapolis and Baltimore.  It certainly would be a better solution than the current situation, but I do think stathood would solve more problems.

    •  Aussming you could get it through congress (none)
      I wonder how the state legislatures would come done on it?

      "These are the commanders who have deserted their troops. And there is no more serious crime in the laws of war"
      -John Kerry, 1971

      by Goldfish on Fri Dec 10, 2004 at 11:20:47 AM PST

      [ Parent ]

    •  I don't think so, here's why: (none)
      The issue of abolishing it is a canary in the coal mine signaling abuse of power by the majority party.

      The Congressional GOP has been using some very dirty tricks to get their way as of late... but when they start talking seriously about abolishing the filibuster so they can have 100% control with only 55% of the seats, well that's when ethical people on both sides start to wake up to what's going on.

      We should keep the threat of losing the filibuster around, so that when things get as bad as they are now, those Senators (most) who beleive in concepts like "loyal opposition" and "civil debate" can be made to vote on it, forced to state where they stand -- on the side of responsible government that welcomes and does not fear plural viewpoints, or solely on the side of power unabated to their party.

      Some of the practices of good governance should be maintained by common acceptance and tradition and not much else, so that when a ruling party starts trying to do away with them, we see it for what it is -- a sign that they don't respect this country's founding principles.  

      "Patriotism is not short, frenzied outbursts of emotion, but the tranquil and steady dedication of a lifetime." -- Adlai E. Stevenson

      by eebee on Fri Dec 10, 2004 at 11:22:43 AM PST

      [ Parent ]

      •  It Would Be Really Bad For Frist (none)
        If he called for a vote on this and lost.

        He'd have just launched a nuclear missile about the Senate Dems, but found out its warhead didn't work. And of course they'd still respond as if it had.

        I'd actually kind of like to see that. I don't think Frist would be very popular with a lot of
        people, even in his own party, if he tried a stunt like that only to get egg on his, and their,
        faces.

        "These are the commanders who have deserted their troops. And there is no more serious crime in the laws of war"
        -John Kerry, 1971

        by Goldfish on Fri Dec 10, 2004 at 11:38:45 AM PST

        [ Parent ]

        •  It's scary, but you might be right (none)
          I'm not sure anyone's willing to put it to the test, and Frist certainly couldn't withstand losing after bringing it to a vote, but I also wonder if he really has the votes.  There may only be half a dozen or Republican's willing to take a stand on integrity issues like this but that would be enough.  Either way, there would be a lot of hard feelings for a long time after.  It wouldn't be worth it, in my opinion.
  •  Thanks (none)
    I appreciate you doing the research on this- could you give me a link just so I can stick it with the other articles I have on this?

    Whats interesting is that it looks like the democrats went through and took the vote to table the point of order as a threat to republicans.  Just saying "at this point we can pass any rule we want to- either vote for the new cloture rules or the filibuster will be eliminated completely".  That if the republicans wouldn't be willing to live with 60 votes, they should be ready to live with a 50 vote cloture rule.  Then of course after the republicans votes for the new senate resolution going back to undo the precedent. Maybe it was a bluff or maybe it wasn't, but it was effective.

    It will be interesting to see if republicans use this same tactic to try and force through their judicial nominees.  Create a Senate resolution saying that the cloture requirements for judicial nominations would be at 55 (or the Miller resolution from before where the number would gradually go down but debate would be prolonged) then do the same tactic.  Just tell democrats that if they don't agree to the new "moderate" rule, they will eliminate the filibuster completely and everything will get rammed through.  

    But thanks again for the information, I hadn't seen this written anywhere else.

    •  dixiecrats (none)
      Was it really a case of majority Democrats muscling minority Republicans? This stunt required the active participation of the Republican Vice President, who presumably wouldn't have aided a purely partisan maneuver. Historically the filibuster was the tool of Dixiecrats opposing civil rights legislation, so it sounds more like a case of liberals and moderates in both parties ganging up on Southerners and conservatives.

      I second the thanks to DCMike, this was really interesting. Is this from Byrd's history of the Senate?

    •  I think you're still missing it (3.50)
      As far as a link, no, this is all typed in.  The sources are Byrd's history of the Senate, the Parlamentarian's "Senate Procedure" manual, and my colleague's research.  I'm not sure if any of the documentation is online.

      Look at the debate, Democrats were on both sides.  They didn't do this vote to "threaten the Republicans."  They did it to end a 60 year old debate on revising the rules of the Senate with each new Congress.  Majorities on either side had been taking runs at the filibuster rule for decades (and with intense vigor during the civil rights votes) this finally settled it.  I think the 70 to 21 vote that eventually broke the logjam and allowed the revision to pass was a reflection of both sides' dissatisfaction with a 2/3 cloture rule.  It sure as hell wasn't tyranny by the Democrats.

      There is no "tactic" here to try.  Republican's are going to do what they are going to do.  None of it has precedent in Democratic actions from the past, no matter how hard to you try to create linkages.

      •  I guess I am missing it (none)
        Why did they have to go through all the hassle of "unringing the bell" if they had the votes to change the cloture rule to begin with?  Why would any of this been necessary?  If they had 70 votes from the start, there wouldn't have been any way for the minority group to stop them.  It seems to me that they didn't have the 66 votes until they ran right up to the brink of setting the precedent, then several people who were opposed to changing the cloture rules changed their minds because they knew that once the rules were changed, there would be nothing stopping the majority from changing the rules again to lower the bar even further.  That in the face of losing the filibuster completely, several more people decided that 60 wasn't so bad.  

        I guess its possible that the argument of the majority was so persuasive that they changed many people's mind on this issue just through weight of argument, but I just don't see why they would have gone through all this procedure if they really did have 70 votes.

        •  Ugh (none)
          It was the Democrats who "unrung the bell."  It was the Democrats who decided that they weren't going to do it that way.  If it was simply a raw excercise of power then why would the Republican's go along and vote for cloture?

          The fact is, as I have stated several times, this wasn't a party issue.  There were Dems on both sides.  You simply can't shoehorn it into some kind of precedent for the Republican's current power grab.  

          The history of the back and forth over cloture and whether or not the Senate even should have "standing rules" went back for decades.  That was the important context here.  I think it is ridiculous to read all of what happened and come away with some notion that this was just brinksmanship on the part of the Dems.  

          The fact is, the Washington Times is, as usual, full of shit.

          •  well.... (none)
            If you notice, you will see that I have started using the terms majority and minority to reflect that this wasn't cutting strictly across partisan lines.  You are having a tough time accepting that I am trying to have a conversation on this for some reason.

            And once again, invoking the nuclear option is to me what broke the deadlock on the cloture rule, even if they were able to go back later and unring the bell.  If there were no deadlock then all of this wouldn't have been necessary.  I guarantee you that they didn't go down this road while they thought they had better options for breaking the filibuster.  So the next point is for me to understand why ringing the bell then undoing it was necessary to break the deadlock.  THey didn't have the votes to change the rule through traditional means, they pull this maneuver, then they do have the votes.  

            Do you really think its a major stretch to think that the threat that the filibuster could be completely eliminated might have caused some number of senators to codify the 60 vote cloture rule?  

            •  Yes (none)
              It's a major stretch.  If they wanted to get rid of the filibuster entirely, they had their chance, it was a done deal.  What they really wanted to do was stop the endless bickering about revising the Senate rules every time a new Congress convened.  I frankly think it wasn't brinksmanship, they just wanted to move on and do real business.  If it was about the cloture rule this fight would have happened in 1964.  

              The "deal" that was cut was give something to the Senate rule-rewrite crowd in the reduction from 66 to 60 in exchange for their acquiescence to the principle that the Senate is a continuing body that can have standing rules.  It was the refusal to recognize Allen, of the minority party, that really pushed members of the majority party over the edge.  Until that point, I doubt they saw this as a power-grab at all, we don't know how they would have voted on the underlying resolution.

              •  well... (none)
                You and I just disagree on this again.  I don't see how the majority threatening to just ignore points of order from the minority would cause more people to support the majority just to get business done.  If they saw the majorities action as the powergrab only as Allen was not recognized, all things being equal the minority  should have gotten more support.  It wasn't the minority that was abusing power after all.  But in reality, the majority picked up support so all things were evidentially not equal.  To me its logical to think that the minority senators thought that their bluff had been called and that a 60 vote cloture rule would be preferable to an effective 50 vote cloture rule so decided to vote for the compromise.  

                I simply cannot see any other reason why a Senator who was steadfastly opposed to changing the cloture rule to 60 votes would switch their opinion after the majority pulled something like this. If you are against weakining the rights of the minority, seeing a blatant powerplay like this from the majority would make you think that it should be easier for the majority to pass what they want?  

  •  One more thing (4.00)
    Just to try to keep from going too far afield.  There is no "deal" on the table to avoid Frist going nuclear in exchange for committee allocations.  Somebody on Kos thought that up on his own.  As I hope everyone can see from the above, the nuclear option would be so destructive to the Senate as an institution all that will keep Frist from doing it is his sense of decency and his own moral boundaries.  Either he'll severly harm the place for short-term gain or he won't.  He won't be looking to deal his way out of it.
    •  all that will keep Frist from doing it... (none)
      Is his sense of decency and his own moral boundaries?

      Well, my God man, then we really are well and truely fucked!

      "These are the commanders who have deserted their troops. And there is no more serious crime in the laws of war"
      -John Kerry, 1971

      by Goldfish on Fri Dec 10, 2004 at 11:40:13 AM PST

      [ Parent ]

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