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In case you missed it -- and very few of you did, from the looks of things -- Sen. Tom Udall (D-NM) has issued a call for reform of Senate cloture rules both on the floor of the Senate, and in a diary right here at Daily Kos.

You can review the Senator's diary for a run-down on the logic behind what Republicans called the "constitutional option" when they were threatening to invoke it in 2005, during a fight over President George W. Bush's stalled judicial nominations. The facts and the history are correct, and will give you a good general background on where Udall is coming from. And in case you were wondering, one difference between what we knew as the "nuclear option" and Republicans called the "constitutional option" was that the scholarly writing (PDF) which gave Republicans their preferred name for this maneuver was very, very clear about the conditions under which the option was justified under the precedents: at the beginning of a new Congress. Republicans, of course, wanted to ignore most of the "constitutional" part, but keep the "option" anyway.

What is it about the beginning of a new Congress that creates this opportunity? Well, it arises as an answer to one of the obstacles to change that Udall mentions:

Even worse, the rules make any effort to change them a daunting process. Currently the rules for the Senate continue from one Congress to the next. However, as last modified in 1975, even attempts to change the rules can be filibustered, and in fact require an even greater threshold (two-thirds, or 67 senators) be met than for the regular business of the Senate.

Do you remember when I told you to keep the concept of the Senate as a "continuing body" in mind? Probably not, because I did it in "This Week in Congress," and nobody really reads that crap. But anyway, this is the reason I asked you to mentally file it. It's the continuing body theory that holds that the rules of the Senate continue from one Congress to the next, as Udall points out. And it's the conflict of that concept with Article I, Section 5 of the Constitution, granting each house of Congress the right to determine its own rules of procedure, that has resolved itself in the precedents as this sort of magic window of opportunity.

With discussion of cloture reform coming almost on a daily basis at this point, and with the filibuster having frustrated the progress of major agenda items like health care (not to mention reproductive rights, along the way), and likely to do the same for climate change, employee free choice, Don't Ask/Don't Tell, banking, finance and consumer credit reform, expect the demands for reform to reach fever pitch at about the same time that the magic window is getting ready to open.

Anyone with plans to sit in that body come January 2011 had better be thinking about it, because the activist Democratic base certainly will be, along with big time political donors, issue advocacy groups, labor unions, grassroots membership organizations, and millions of voters who've grown as frustrated with having to repeatedly express their disgust with Washington gridlock as they have with the gridlock itself.

Originally posted to Daily Kos on Thu Jan 28, 2010 at 01:40 PM PST.

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Comment Preferences

  •  Good news about repealing DADT (11+ / 0-)

    CNN has announced that Secretary Gates will make a big announcement on Tuesday about DADT.

    It may just happen folks...

    Obama 1/10: "We don't quit. I don't quit."

    by Drdemocrat on Thu Jan 28, 2010 at 01:41:30 PM PST

  •  True (2+ / 0-)
    Recommended by:
    kaliope, wmholt

    Probably not, because I did it in "This Week in Congress," and nobody really reads that crap.

    So true.

    Riding on a pony Riding against the wind And in came brando And he told it like this

    by Wamsutta on Thu Jan 28, 2010 at 01:41:59 PM PST

  •  FYI...I read This Week in Congress (10+ / 0-)

    "Don't knock's just like chess but without the dice" - john07801

    by voracious on Thu Jan 28, 2010 at 01:44:05 PM PST

  •  Don't expect a change in status quo---now that (5+ / 0-)
    Recommended by:
    cybersaur, JVolvo, TKLTKL94, WyoChris, IndieGuy

    corporations can weigh in against allowing for progressive laws to be passed more easily.   Ain't gonna happen.

  •  I read it - I know you're not kidding ,,, (3+ / 0-)

    It's your job!!!

    (Yes, I remember - h/t to Animal House).

  •  Well (1+ / 0-)
    Recommended by:

    I'd like to believe this...

    But remember that a MAJORITY of Democratic Senators elected Harry Reid.

    And apparently they're considering electing Senator "I love Dodd" Shroomer after him.

    Not the brightest bulbs in the box.

    The United States Senate has lost its political legitmacy and should be abolished.

    by TKLTKL94 on Thu Jan 28, 2010 at 01:47:26 PM PST

  •  Step one. get rid of the Filibuster. (3+ / 0-)
    Recommended by:
    JVolvo, TKLTKL94, LSmith
    Step two: Amend the Judiciary Act to add two Justices to the Supreme Court -- who shall be appointed by the current President. Step 3 -- Appoint two liberals to the Supreme Court who cannot be filibustered by dipshit GOPers and conservadems
    •  Step 3 (5+ / 0-)
      Recommended by:
      bay of arizona, kaliope, JVolvo, jayden, LSmith

      Abolish the Senate.

      They are a house of Lords with no political legitimacy.  I have half a mind to start calling all Senators "Lord Reid" instead of their actual title since almost none of them but Harkin and now Udall favor the abolishment of the Filibuster.

      The United States Senate has lost its political legitmacy and should be abolished.

      by TKLTKL94 on Thu Jan 28, 2010 at 01:49:23 PM PST

      [ Parent ]

    •  I assume that... (1+ / 0-)
      Recommended by:
      Nate Roberts will still support this if, for example, the Republicans have control of the Senate and the WH after 2012 and that's when we get around to implementing your suggestions?

      I understand getting rid of the filibuster. Although, both sides are afraid of the consequences (both know that they may not be in the majority in a couple years and don't feel comfortable being completely irrelevant when that happens).

      But, stuffing the court is just a never ending battle - each time a new party is in power, they just add/subtract members of the court to balance it the way they want. This would eviscerate the independence of the USSC and turn it into a purely political body. We would have gone into Obama's administration with 90% conservatives on the court - and who knows what would have happened to precedents like Roe (well, I think we might actually know). Obama/Congress would then have had to nearly double the size of the court just to balance it again. Starting such a cycle is a little like using a strategic nuke to stop a pickpocket from taking your wallet - everyone loses and no one wins.

  •  TWIC, you have fans. (8+ / 0-)

    This Week In Congress, I read it regularly.
    Thanks for doing the hard work to make it easier for us to pick apart what's going on in our governing bodies.

  •  So when is the next "beginning"?? (0+ / 0-)

    Assuming that there's the political will to change the rules, how much longer do we have to wait for anything to get done in a "new Congress"?

  •  Or we could still force the (1+ / 0-)
    Recommended by:

    obstructionists to actually filibuster, right? Do I have it correct?

    Republicans: Made in China, traded by Arabs, and the foundation of the Democratic Party.

    by plok on Thu Jan 28, 2010 at 01:49:54 PM PST

  •  Come Jan. 2011 (0+ / 0-)

    The possiblity exists, however unlikely, that the Dems may not be the majority party.  Will the clamoring for the new rules concerning the filibuster still be there then (at least from this side of the aisle)?

  •  Note On Calendar (4+ / 0-)
    Recommended by:
    wishingwell, JVolvo, jayden, TKLTKL94

    Assuming we keep the senate majority after the 2010 elections, which we will, I have put a note on my calendar for November 3, 2010 to start phoning, E-mailing and writing letters to senate Dems. to make sure they make amending the filibuster rule their first order of business in 2011.  I suggest you all mark your calendars too.  There will be no more important political issue than this one.

    "Some men see things as they are and ask, 'Why?' I dream of things that never were and ask, 'Why not?"

    by Doctor Who on Thu Jan 28, 2010 at 01:50:22 PM PST

    •  Ok - so we have to wait a year?!?! (0+ / 0-)

      So there's no hope of getting a change in the rules till next year? So we have another "lost year"? When the Repugs threatened the Dems with eliminating the 60 votes rule, how did they propose to do it then?? The Dems baought it, there must have been a credible path for the Repugs to do it, wouldn't you think?

  •  Pile on this, people! (3+ / 0-)
    Recommended by:
    wishingwell, cybersaur, TKLTKL94

    We might be able to restore the Senate to something remotely resembling functionality...

    -3.62, -6.21 Steadfastly refusing to comment on Sarah Palin since 11/16/09.

    by Zikar on Thu Jan 28, 2010 at 01:51:39 PM PST

    •  Tom Udall is my Senator, and he's good (1+ / 0-)
      Recommended by:

      I'm thrilled that he's taken a leadership role on this issue.

      "The extinction of the human race will come from its inability to EMOTIONALLY comprehend the exponential function." -- Edward Teller

      by lgmcp on Thu Jan 28, 2010 at 02:10:25 PM PST

      [ Parent ]

      •  Agreed! (1+ / 0-)
        Recommended by:

        I called his Albuquerque office this afternoon to thank him for leading on this issue.

        what we face is above all a moral issue; that at stake...are... the fundamental principles of social justice and the character of our country." Ted Kennedy

        by grannysally on Thu Jan 28, 2010 at 08:13:49 PM PST

        [ Parent ]

  •  Changing the rules would be good, but... (4+ / 0-)

    ...would Exxon/Mobil allow it?

    < /snark >

    "We are all born ignorant, but one must work hard to remain stupid." -Ben Franklin

    by IndieGuy on Thu Jan 28, 2010 at 01:54:05 PM PST

    •  I don't think (0+ / 0-)

      The Democratic Senators own lemming like sense of self destruction would allow it.

      And that's an insult to lemmings because lemmings don't really willingly leap off of cliffs.

      The United States Senate has lost its political legitmacy and should be abolished.

      by TKLTKL94 on Thu Jan 28, 2010 at 01:54:57 PM PST

      [ Parent ]

  •  Not read TWIC? (2+ / 0-)
    Recommended by:
    jayden, blueyescryinintherain

    I wouldn't miss it for pie.

    Money=speech; every dollar has a right to be heard. The Supremes

    by orson on Thu Jan 28, 2010 at 01:55:10 PM PST

  •  You do know... (0+ / 0-)

    By the time the Filebuster is repealed the Republicans will be in charge so be careful what you ask for....

  •  What will the new number be? (0+ / 0-)

    Another thing to ponder. Let's say they do consider changing the rules, then it all becomes about the number. It won't be as simple as them saying, "Ok , now it's a simple majority." No - I fear there will be endless wrangling by the spineless Dems as to what the threshold should be, 55? 52? 57? All while the Repugs are screaming how the Dems are trying to take over the government.

    Don't get me wrong, I'm all for this. But the only way to reap political benefits from such a move is to do it quickly, with a simple majority, and start getting shit done so Americans can finally experience the benefits good progressive ideas turned into legislation.

    •  Harkin proposal (1+ / 0-)
      Recommended by:

      First vote, threshold 60. 3 days later, 57. Then 54. Then 51.

      It lets 41 senators force a longer debate, and buy time to mobilize opposition. It gives the senate a strong motivation not to pass everything by just 51. But it can be overcome if needed. I think it's a good plan. More importantly, it's a plan already supported by at least one senator. (The other original Dem cosponsor, from back in 1995 when the Dems were a minority, is unlikely to still support it. Believe it or not, it's Lieberman.)

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

      by homunq on Thu Jan 28, 2010 at 02:10:59 PM PST

      [ Parent ]

  •  How does Article 1, Section V (0+ / 0-)

    which states that Congress can make its own rules, not subject to review by any other branch of government, preclude the "continuing body" doctrine?

    The Senate has, by its own internal rule-making, determined itself to be a "continuing body", rather than one reconstituted whole at some specific interval (as the House clearly is). This is clearly consistent with Article I.

    The Senate has, as a consequence of the "continuing body" theory, decided, again by its own internal procedures, that the existing rules are not subject to renewal at any specified interval, but rather that they can only be changed "in-stream", as an ordinary item of Senate business, and governed by the rules that the Senate has put in place to control any such changes. This is also clearly in compliance with Article I, Section V.

    I can't see any way in which to add up the actions of the Senate over the years such that they would conflict with the Constitution.

    Don't confuse "should" with "can".


    "It is better to die on your feet than to live on your knees." -- Emiliano Zapata Salazar
    "Dissent is patriotic. Blind obedience is treason." --me

    by Leftie Gunner on Thu Jan 28, 2010 at 01:59:51 PM PST

    •  Continuing body needs burying. (0+ / 0-)

      Read why the continuing body doctrine is bogus, and even if it weren't, the current Senate would still have the sovereign right to change its mind about the rules. Quite a thorough legal argumentation.

      For just one tiny sub-argument: there are elections when there's less turnover in the House than in the Senate. Does that make the House a continuing body too?

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

      by homunq on Thu Jan 28, 2010 at 02:16:55 PM PST

      [ Parent ]

    •  The problem is the logic is circular (0+ / 0-)

      The "continuing body" doctrine exists in the rules of the Senate. Thus, one has to pre-suppose it for it to apply to Senates subsequent to the one which adopted it.

      Even worse, the rule change that first included the continuing body doctrine was only made in response to the threat to use the "constitutional option", and was not filibustered specifically because of the threat of the "constitutional option".

      As to the Article I Section V conflict - if you presuppose the absence of continuing body, then the constitution precludes continuing body. Of course, the story didn't say it was "precluded", only that there was conflict.

      In America, 60% of bankruptcies are because of medical bills, and 80% of those people had health insurance

      by sullivanst on Thu Jan 28, 2010 at 02:45:32 PM PST

      [ Parent ]

      •  But with each congress (0+ / 0-)

        at max. only a third of the Senate body is new (unlike the House). Yes the Senate can change it's rules, by using it's own rules to do so. If the Senate decides under the current rules to change the threshold to change the rules form 2/3rd to bare majority, it can do that, if it first can meet the in force rules they are operating under. IN other words you need to get 67 votes to change the threshold on changing the rules to be 51 votes (for example).


        Mitch Gore

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

        by Lestatdelc on Thu Jan 28, 2010 at 04:17:33 PM PST

        [ Parent ]

    •  Exactly (0+ / 0-)

      As much as I would like the Senate to be able to function better and more swiftly on big legislation, the claims this diary and Senator Udall's makes simply doesn't hole water.


      Mitch Gore

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

      by Lestatdelc on Thu Jan 28, 2010 at 04:13:15 PM PST

      [ Parent ]

    •  It come from Senate precedent. (0+ / 0-)

      For one thing, the continuing body theory is a presumption and not a rule.

      For another, there is a series of rulings from the chair upholding the proposition that a previous Senate cannot bind a new one precisely because the Constitution gives the Senate -- each Senate -- the right to adopt its own rules. The standard explanation, common to all of these rulings, is that each new Senate either has the option to allow the rules to continue, which they do by doing nothing and continuing to operate under them without change, or to change them by majority vote.

      So nothing about the Constitution "precludes" the continuing body theory. But it does present a conflict.

      •  Is that "conflict" constitutionally relevant or (0+ / 0-)

        is this  just opinion and could be overcome?
        And if nothing about the Constituion  "precludes" the continuing body theory,why do changes to the standing rules have to wait for a new congress?

  •  The filibuster (0+ / 0-)

    has attained mythic retrograde powers only because:

    1. Democrats are unwilling to take a political stance across an electoral cycle (or two, or three if necessary).  Fine.  Let Republicans block healthcare reform, and let them pay the price.
    1. This assumes (fatally so) that powerful, Big-Boy Pants(tm) Dems are willing to engage in politics.  To continue with the HC'r' example, Dems would have to be willing to put up something much better, more populist, and less corrupt than what they have.  Something actually worth fighting for, say, like single payer.  Y'know.  Instead of the AHIP/PhRMA approved dreck they're currently foisting on the nation.
    1. Which leads inexorably back to the over-riding focus on the filibuster as the be-all end-all of Obama era librul politicking.  The perfect excuse for an administration, and a party, that really, really doesn't want to get into that whole politics / good results thing at all.

    But oh, those Big-Boy Pants(tm).

    Please don't feed the security state.

  •  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:

      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?


      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.

  •  I'm still laughing out loud at this: (0+ / 0-)

    Do you remember when I told you to keep the concept of the Senate as a "continuing body" in mind? Probably not, because I did it in "This Week in Congress," and nobody really reads that crap.

    FWIW, some of us actually do read that times...when we're really, really bored.

    You measure democracy by the freedom it gives its dissidents, not the freedom it gives its assimilated conformists. - Abbie Hoffman

    by blueyescryinintherain on Thu Jan 28, 2010 at 02:05:38 PM PST

    •  I even sometimes read it (0+ / 0-)

      when I'm not bored.

      For example, when I'm looking to see if something we have been promised will happen this week in the Senate is actually on the Calendar.

      Like when they said hate crimes would be in the Tourism Promotion Act, or the SASC was going to have hearings on DADT (any of the three times that was promised).

      In America, 60% of bankruptcies are because of medical bills, and 80% of those people had health insurance

      by sullivanst on Thu Jan 28, 2010 at 02:48:43 PM PST

      [ Parent ]

  •  So If it takes a 2/3 Majority to Change the Rule (0+ / 0-)

    What was the nuclear option all about?  Was that a fictional threat when it came up a few years ago?

    •  The nuclear option was the threat (0+ / 0-)

      to rule that the rule wasn't a rule. When a ruling by the chair on a point of order is disputed, the dispute is resolved by a majority vote on the floor.

      There were a few ways to detonate the nuclear option, but they all used the same mechanism: dispute a ruling, and the majority votes in against the plain text of the rule.

      So, for example, you could invoke cloture on a confirmation vote. The cloture would fail, but the chair calls the vote anyway. The minority of course calls a point of order that the vote cannot be taken because cloture failed. The presiding officer upholds the point of order, because the rules are absolutely clear that the vote cannot be forced without cloture. But a backbench majority Senator objects to the ruling, and a majority vote is held on whether the ruling was correct. Even though the ruling clearly was correct, the majority votes that it was not, and they go ahead and hold the vote.


      In America, 60% of bankruptcies are because of medical bills, and 80% of those people had health insurance

      by sullivanst on Thu Jan 28, 2010 at 02:56:18 PM PST

      [ Parent ]

  •  Meanwhile, all 40 GOPs voted against (2+ / 0-)
    Recommended by:
    sullivanst, FreeStateDem


    They are just amazing.

    "Listen to the silence of congress in the last few minutes of the speech. It's the silence that greets the truth". - Andrew Sullivan

    by blackwaterdog on Thu Jan 28, 2010 at 02:11:41 PM PST

  •  Jon Stewart nails it (0+ / 0-)

    The Constitution is not negotiable

    by Hkingsley on Thu Jan 28, 2010 at 02:18:31 PM PST

  •  I've posted a diary about this, too (0+ / 0-)


    Unsurprisingly, I don't think your reasoning holds water.

  •  I think the filibuster is unconstitutional (1+ / 0-)
    Recommended by:

    And maybe some day I'll find the time and energy to write a diary and solicit thoughts from you guys.

    In a nutshell, the composition of the senate already violates equal protection, by affording small state citizens grossly disproportionate representation.  The filibuster exacerbates that unfairness.

    Furthermore, I'd argue that in agreeing to the filibuster rules, the senators are unconstitutionally mortgaging the voting power the Constitution vests in them, allowing for the likelihood that one or two senators end up with veto powers far disproportionate to the citizenry they represent.

    Finally, as a contract interpretation issue, the "gentlemen's agreement' that is the filibuster presupposes that it is exercised by gentlemen.  The gentlemen in question have already breached the agreement by threatening the nuclear option when they held the majority.  There is no further obligation for our side to observe that agreement.

    •  so, you are saying (0+ / 0-)

      that the filibuster gives minorities a larger say than their numbers justify.  Should this apply to all issues in this country.

    •  I think the filibuster is unconstitutional (0+ / 0-)

      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?


      Mitch Gore

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

      by Lestatdelc on Thu Jan 28, 2010 at 04:08:51 PM PST

      [ Parent ]

      •  I think that the argument is, in effect, (2+ / 0-)
        Recommended by:
        sharman, wmholt

        that the filibuster acts as a constitutional amendment.

        IS5 allows each house to set their rules as they please -- within the limits of other constitutional rules. The Senate cannot, for example, create a rule that lowers the threshold for treaty approval, or vote to allow one member to pass laws -- aka, create a King of the Senate. Or change the term of a member. Or...

        The filibuster is constitutional insofar as it's merely a rule of speaking. It's not a veto power to the minority -- but a rule that defines how long a member may speak.

        But when, in fact, it changes the explicit rules of the constitution, it then becomes unconstitutional.

        Could the Senate declare that the President may sign any treaty he wish? Or select by lottery a person that may then pass any bill she wishes, as long as the House consents? Or pass a rule altering the 2/3 majority for expulsion of a member?

        •  Doesn't hold water (0+ / 0-)

          Because treaties are not legislation. They are treaties made by the executive branch which is why the Senate can't change the threshold (which BTW is 2/3rds, not simple majority) for its approval of said treaties because that threshold is set by the Constitution explicitly on how those two branches have to work in connection with each on said matter (treaties).


          Mitch Gore

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

          by Lestatdelc on Thu Jan 28, 2010 at 04:34:41 PM PST

          [ Parent ]

          •  Yes -- but the majority rule is also (2+ / 0-)
            Recommended by:
            sharman, wmholt

            set explicitly. The Senate has never set a rule that a supermajority is actually required to pass legislation.

            Why? Because it can't. The rule is explicit. The filibuster is justified as purely a procedural element -- it's not required to pass a law, it only defines when debate comes to an end for the constitutional passing of laws.

            But if the rule is just a formal end-run on majority rule, it changes character. It isn't any longer a rule about debate -- but an actual change in the character of the body. The authority of the Senate Rules comes from the majority accepting the rules -- not the other way around.

            I think we have plenty of evidence from Senators themselves that they're acting as if the rules weren't on sufferance from the current majority -- but somehow mystically or constitutionally mandated.

            •  No it isn't (0+ / 0-)

              Cite where it is explicitly stated please. There are various times when a 2/3rd vote is required of the Senate (and/or the House) within the Constitution itself. Form treaties, to overruling a veto, impeachment of members of the court, or the President, etc.

              The Senate has never set a rule that a supermajority is actually required to pass legislation.

              Nonsense. The Senate Rule XXII we are all discussion explicitly is that in order too end debate 3/5ths of the Senate most vote to end debate (i.e. the filibuster rule).


              Mitch Gore

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

              by Lestatdelc on Thu Jan 28, 2010 at 05:03:21 PM PST

              [ Parent ]

              •  Oh, don't be dense. (1+ / 0-)
                Recommended by:

                I wasn't talking about the constitutionally mandated super-majorities.

                The question is what does the "end debate" rule stand on? It's not magically justified. It's the will of the majority -- the ability of each house to set it's own rules presupposes that those rules come out of standard majoritarian parliamentary procedure.

                That's the only basis upon which a Senator could appeal to outside force -- SCOTUS, the House, or the Presidency, that a Senatorial action was illegitimate. Senate rules aren't laws -- the rules of the body, that can not be appealed outside the body in terms of the rules themselves.

        •  Exactly (0+ / 0-)

          Thank you, kind sir, for carrying on that debate.

          That's it exactly.  The corporate law rule of "ultra vires" is the phrase that always comes to mind.  Just as a senator could not, imo, sell or give his vote away, nor as you said, just as the senate cannot pass a rule that explicitly allows Lieberman to cast their proxies for all votes.  Just so, it is unconstitutional and outside the senators' constitutional powers to give their votes away.

  •  The reason the Dems will not touch the filibuster (3+ / 0-)
    Recommended by:
    wmholt, RandomSequence, sullivanst

    is that it's their firewall.

    There's always some excuse not to pass important things in the Senate, when Democrats run the place.  There has to be, because they're caught between a rock and a hard place:  There are The People, who vote for them because the party line is that the Democrats fight for the middle class, and there are The Corporations, who buy the elections for them.  It's a zero sum game.

    There has to be a mechanism to string along The People while not actually getting their work done.  (Not that there "has to be", but the pressures are such that one would evolve if there wasn't one.)  

    In the Senate this mechanism is the filibuster.  In the House this mechanism is the Senate.  In the White House this mechanism is Congress.


    We guarantee 40 million more customers to the insurance companies, then claim it's a good thing because the poor get a cup of coffee and a doughnut. - Jane

    by itswhatson on Thu Jan 28, 2010 at 02:31:22 PM PST

  •  don't elim filibuster for judicial appts (0+ / 0-)

    we should eliminate it for the rest, but not judicial appointments.

    we will not always be in the majority, and it will be better to get less liberal judges in now, than to have to accept a whole flood of incredibly conservative judges when, someday, they retake control.

    eliminate filibuster, but with big exception for lifetime appointments, i.e. judges

    It is not upon you to finish the Work, but neither shall you, O child of freedom, refrain from it.

    by DoGooderLawyer on Thu Jan 28, 2010 at 02:31:30 PM PST

    •  in other words (0+ / 0-)

      we should only stop the Repubs from using the filibuster?

      •  Sure, why not? (1+ / 0-)
        Recommended by:

        They'll be just as free to alter the rules when they're in power. But by doing only a partial change, it would be a "gentlemen's agreement" that they each get to keep judicial filibusters. It can be rationalized on the basis that judicial appointments are lifetime appointments, so in the interest of the country, a minority veto should be allowed.

        It's all a game of precedent and comity. They can do whatever the hell they want.

        •  exactly (1+ / 0-)
          Recommended by:

          and no, it wouldn't stop the R's from using the filibuster on judicial appointments while we're in power.  

          while i don't trust that the Republicans won't completely eliminate the filibuster if they got the chance, us only eliminating part of it would be the best chance we'd get to get them to also leave judicial appointment filibusters for us when we're the minority.

          It is not upon you to finish the Work, but neither shall you, O child of freedom, refrain from it.

          by DoGooderLawyer on Thu Jan 28, 2010 at 04:28:06 PM PST

          [ Parent ]

  •  After that SCOTUS ruling (0+ / 0-)

    We should look 'em in the eye and say Bugs Bunny's old line: "Of course you know, this means war" and get every damned thing passed we possibly can because there's zero evidence they're ever going to see things our way.

    We're damned if we do and damned if we don't kill the fillibuster. Might as well do it and make the best of it.

    This ain't no party. This ain't no disco. This ain't no foolin' around!

    by Snud on Thu Jan 28, 2010 at 02:31:42 PM PST

  •  the filibuster is the least of the Dems problems (0+ / 0-)

    they have much larger issues to deal with and they have shown us that they cannot multi task.  They had a filibuster proof congress and couldn't get anything done.

    •  How familiar would you say you are (0+ / 0-)

      with Senate procedure?

      Because this comment hints that the correct answer is "not very".

      In America, 60% of bankruptcies are because of medical bills, and 80% of those people had health insurance

      by sullivanst on Thu Jan 28, 2010 at 02:58:53 PM PST

      [ Parent ]

      •  shooting the messenger again (0+ / 0-)

        Regardless of whether you think this is accurate, it is a common feeling.

        So, how will Dems change this attitude?

        •  No, the message is the problem. (1+ / 0-)
          Recommended by:

          Senate rules are not conducive to multitasking. And the need to find 60 votes on every bill or amendment greatly increases the time required to negotiate.

          In other words, it's not possible to support the claim that the filibuster is the least of the Dems problems. You could make the claim that the Dems are at least partially to blame for making the filibuster such a big problem, but that's not what the comment said.

          The Dems are not and never have been a party that rigidly enforces strict adherence to the party line.  That would be at odds with both their core philosophy and their electoral strategy. Unfortunately, it also makes them especially vulnerable to the filibuster. But even if they were able to get 60 votes on everything, the delays built into the cloture procedure would still massively gum up the works.

          In America, 60% of bankruptcies are because of medical bills, and 80% of those people had health insurance

          by sullivanst on Thu Jan 28, 2010 at 03:19:39 PM PST

          [ Parent ]

    •  Except the "filibuster proof Congress" (0+ / 0-)

      was never more than a media myth. Obviously if it was filibuster proof there wouldn't have been filibusters.

      Everybody talkin' 'bout Heaven ain't goin' there -- Mahalia Jackson

      by DaveW on Thu Jan 28, 2010 at 03:34:53 PM PST

      [ Parent ]

  •  But as you aknowledge... (0+ / 0-)

    ....the Senate IS a continuing body with continuing rules and so claiming it is in conflict with Article I, Section 5 of the Constitution is a tenuous subjective assertion at best.


    Mitch Gore

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

    by Lestatdelc on Thu Jan 28, 2010 at 04:05:32 PM PST

    •  So, would you say that if this Senate (0+ / 0-)

      would decide to require unanimity on every vote, that would be constitutional? That they could in effect decide to shut down all legislation forever?

      Or worse, make a rule banning the bringing up of any legislation ever -- a perpetual filibuster -- which could not be overturned under any conditions?

      That's the reductio ad absurdum you're going with once you start this kind of entrenchment.

      •  To your questions (0+ / 0-)
        1. In theory yes, but of course that would never occur as it would eliminate any Senators voice from ever counting so no Senate would ever pass such a rule
        1. or until they vote to change the rules
        1. They could do that with a bare majority vote if they could sustain said vote.
        1. See #1


        Mitch Gore

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

        by Lestatdelc on Thu Jan 28, 2010 at 04:39:57 PM PST

        [ Parent ]

        •  Seriously? (0+ / 0-)

          You think that by a majority vote, the Senate could functionally dissolve itself forever? Not just until another majority decided to change the rule, but that they could -- in principle -- eliminate the body without constitutional amendment?

          •  In theory yes (0+ / 0-)

            Just as in theory, the people can vote in new Senators and once that body has enough members to change the rules it can then do so.

            And it would not be eliminating the body without amendment, which, ironically is the ace in the hole if your absurd theoretical situation ever came to pass would resolve it. The people hold ultimate veto power of such a stunt by the Senate first at the ballot box, and if necessary through Constitutional amendment, which they can initiate form the states without Congress if need be.


            Mitch Gore

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

            by Lestatdelc on Thu Jan 28, 2010 at 04:51:39 PM PST

            [ Parent ]

            •  To make sure I'm clear on your position, (0+ / 0-)

              You are saying that a Senate could pass a resolution that no bill could ever come before the Senate again -- and after the following election, the next Senate could not override it?

              The question, to be clear, is not that a Senate can make rules on itself -- but whether the Senate rules can act as permanent law.

              Then the question would continue -- if so, who is the enforcer? Since no body can enforce the rules of the Senate, if the majority decides to disregard the rules, who's to stop them? SCOTUS can't decide whether the Senate is abiding by it's own rules -- that would be a clear violation of the explicit separation of powers.

              It seems that there's no way to get around it -- the Senate rules are merely a gentlemen's agreement with no enforceability beyond the constitutional majority rule. It rests on an at least nominal support by a mere majority.

              •  There is no "next Senate" (0+ / 0-)

                It is the SAME Senate as it is a continuing body with only 1/3rd being up for election prior to the next Congress (unlike the House which is a new body each Congress).

                But that said, in answer to your absurd hypothetical, yes it could. And the states can of course in turn override that through State initiated Constitutional amendment to amend and/or bar such action. But of course your hypothetical is taken to the absurd which would never occur, but even then there is a way out Constitutionally Constitutional amendment.


                Mitch Gore

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

                by Lestatdelc on Thu Jan 28, 2010 at 05:12:20 PM PST

                [ Parent ]

                •  Wow, you're insanely formalist. (0+ / 0-)

                  A lawyer, perchance? That kind of formal ideologism is almost never found outside that field -- but is almost universal within it.

                  But still -- you didn't answer the question of substance. How could such a rule be enforce? The only enforcement mechanism is the will of the Senate, as embodied by majority rule. Majority rule is the only constitutional issue decidable by SCOTUS -- if you are completely formalist. In which case, the rules are reduced to mere sufferance of the majority. If that's the case, "continuing body" is just a fantastic fiction, like the legitimacy of the Merovingians in France.

                  •  Not at all insanely formalist (0+ / 0-)

                    Nor am I a lawyer.

                    How could such a rule be enforce?

                    What rule?

                    You can't force the Senate to take up any bill or take a mandatory vote on any legislation or force it to ever end debate outside of its own rules.


                    Mitch Gore

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

                    by Lestatdelc on Thu Jan 28, 2010 at 05:49:48 PM PST

                    [ Parent ]

                    •  Very simple. (1+ / 0-)
                      Recommended by:

                      The President of the Senate declares the end of debate and declares a vote on a bill. The bill is signed and passed on to the house.

                      BUT, the filibuster rules was never abrogated via the 2/3 requirement in the rules. Is there any way to appeal the majority vote in violations of the continuing rules?

                      No, as long as in fact a majority voted for the bill and a quorum was reached per the constitution, it is irrelevant that the Senate ignored it's own rules -- only the Senate can enforce it's rules.

                      Ergo -- all those hypothetical situations were absurd in the way I presented them. The rules are merely the sufferance of the majority. They have no enforcement mechanism other than the Senate majority. In actual fact, no Senate can bind future votes to anything else than the constitutional rules.

                      It's just that simple. There is no continuing or non-continuing Senate -- it's an empty turn. What there is, is whatever agreement the majority of the Senate decides on. If they wish to treat themselves as a "continuing body" they can -- or not -- because it's purely an internal fiction. The external power of the Senate is only the constitutional requirements.

    •  I acknowledge that it is said. (0+ / 0-)

      And I acknowledge why it's said.

      But that's about it.

      I understand that you like to think it's a tenuous assertion that there's a conflict, but there's the matter of four Senate Presidents saying otherwise, and none saying what you say.

  •  I "Read That Crap" (0+ / 0-)

    and think it's one of the best regular features here.

  •  Watch Out (0+ / 0-)

    By one poll I heard about tonight, Toomey is leading Specter by 14 points. If the trends don't change, we may not have even 50 senators left after 2010 election, so trying to change the filibuster will be moot.

  •  The great irony here is the even with 55 (0+ / 0-)
    As the new filibuster figure, let's say, Democrats will be lucky to have 52 seats after the bloodbath in November.  So we STILL won't be able to pass anything without groveling before Snowe and Collins and whoever the hell else. We can kiss Delaware, Pennsylvania, Arkansas, North Dakota, Nevada and Colorado goodbye right now with Illinois possible.  Then when the GOP regains control in 2012, they'll pick off the gutless DINOs to get 55 with ease.  

    This whole thing blows.  But if we pass health care (unlikely), at least there would be that.

    So thanks again, Massachusetts.

    Andrew Mellon & GOP: 'In a Depression, assets return to their rightful owners'

    by Tuffie on Thu Jan 28, 2010 at 05:25:44 PM PST

  •  How about we don't eliminate it (1+ / 0-)
    Recommended by:

    but make it so painful to use that the public would either not tolerate it, or agree that the majority is wrong?

    First, the painless filibuster is a result of a unanimous consent agreement that every bill gets a cloture vote. One Senator in a safe Dem seat withdraws consent. Now every bill's rules have to be negotiated. Whoever wants a 60-vote cloture vote has to explain why in open session. Assuming they pass the laugh test and are not seen for the roadblocks they are, when a vote is taken and fails, the Majority Leader leaves the item on the top of the agenda - saying "you guys want debate, what have you got to say?" Then either they read the phone book, or admit they've got nothing. This plan will shut down the Senate, but it will be painfully clear exactly who's shutting it down. Then we see who has support.

    Of course, it will also require a Majority Leader who wants this particular spot in history.

    We're on a blind date with Destiny, and it looks like she's ordered the lobster!

    by Prof Haley on Thu Jan 28, 2010 at 06:00:06 PM PST

    •  I don't make a recommendation on that. (0+ / 0-)

      Not in this piece, anyway.

      What typically happens when they pull this maneuver out and win the votes they need is that the opposition freaks out and offers to accept some compromise position rather than see the filibuster eliminated entirely.

      So there would be plenty of room for a compromise aimed at doing something like what you propose. It could easily be the end result.

  •  Just wondering... (0+ / 0-)

    Will the Democrats really get rid of the filibuster if that device is what is allowing Harry Reid and the rest of the Senate to comply with corporate demands?  

    With the threat of a filibuster, Harry Reid and the Democratic Senators back down, and give the Republicans and the corporations what they want.  They look at us, shrug their shoulders and say, "What could we do?", all the time knowing that they would have supported the corporate interests over those of the people regardless of a filibuster threat.

    I think the filibuster provides Democrats with political cover for serving their corporate masters, and I think they will be loathe to get rid of it.  I don't expect that any of the corporatists in the Democratic Party will suddenly get populist religion.  I doubt that they would pass anything of Progressive value, even if the filibuster was eliminated.

  •  Should have been the first thing done... (0+ / 0-)

    ...a year ago. Whack the filibuster and eliminate a mjaor objection to getting things done. The voters would have applauded decisive action...we would have been done with health care, cap/trade and financial regulation by now and been in a stronger position for November.

    Do it now.

  •  RandomSequence has it Exactly Right (1+ / 0-)
    Recommended by:

    "The filibuster is constitutional insofar as it's merely a rule of speaking. It's not a veto power to the minority -- but a rule that defines how long a member may speak.

    But when, in fact, it changes the explicit rules of the constitution, it then becomes unconstitutional."

    The SCOTUS will never rule on the "rules" of the Legislature.  Their experiment with Bush vs. Gore was bad enuf.

    So reform of the Upper House, which was created to appease the slave states and those with small populations has now created a reactionary body which, through the unanimous GOP veto, means that 10% of the population dictates policy and regulation for the other 90%.  That means nothing will happen which will not be highly conservative - the public be damned.

    That's why, if the Senate cannot be abolished, t should be seriously reformed.

  •  Don't Need to Wait (0+ / 0-)

    While I'm sure that many would complain, the truth is that they don't need for the start of a session to introduce this. The Constitution says:

    Each House may determine the Rules of its Proceedings...

    (You know, Article I, Section 5, Clause 2.)

    This does not say when it can or cannot do this. Since this argument is based on the language in the Constitution, anything else about it is supposition. The text itself says that the house determines its own rules. Period. Full stop. End of story.

    There is nothing to say how it does this. It may determine it by taking in billy clubs and whoever emerges after the melee says how it's to work. But, I think that it is very likely that the Founders figured that this would be done by a vote with majority rules, and I can't think of any good argument why it wouldn't work that way. Can you?

    In any case, my suggestion would be that some Senator just get up tomorrow and say that he doesn't like this business of a filibuster and that he wants the rules changed right now. Or, if you want decorum, maybe we'd wait and as soon as someone tries to filibuster then the Senator should move that debate be ended, and then bring this point of order when they try to do it with a 60-vote majority. In any case, we know that the filibuster was created by magic, so it can be gotten rid of by magic.

    After that, it's back to the studio!

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