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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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