Constitutional option now, not next year

[Joanne98]

Senator Tom Udall has a recommended diary in which he courageously and correctly outlines the deep problems with the filibuster:

The use of the filibuster today dominates the Senate's business at an irresponsible level, threatening our ability to operate.... In a world that is constantly changing, our democracy requires a Congress that can respond effectively to the issues of the day without, as my colleague Sen. Robert Byrd once said, being, "obliged to be bound by the dead hand of the past."

Yet the remedy Senator Udall proposes is to wait until next year, when a new session of the Senate can vote on new rules. With our country still in the grip of several important crises, this wait is too long. There is no need to wait until next year.

homunq's diary :: :: To vote on new rules in a new session requires ignoring Rule V's contention that the senate is a "continuing body" and rule XXII's 2/3 requirement to (overcome a filibuster to) change the rules. If these two restrictions, taken together, are invalid, it is only because they are unconstitutional. And if they're unconstitutional at the start of a session, they are unconstitutional now. As Udall argues:

To require a supermajority to change the rules, as is our current practice, is to allow a Senate rule to trump our U.S. Constitution and bind future Senates.

There's no room in that logic to argue that these rules are only unconstitutional once a year. So why does Udall propose waiting until next year to take them on?

Partly, of course, it's a pragmatic choice. If he does it at the start of a session, he can use that to distance himself from the Republican-proposed "Nuclear Option" (as he did on Rachel Maddow yesterday). He can quote Orrin Hatch and Richard Nixon (as VP) in his favor. And thus, he will probably have an easier time getting 51 votes.

Yet this is a lazy pragmatism. If we clipped the wings of the filibuster today, the country would be better-able to face the many crucial challenges of today. Health care, energy and climate change, resolute action on jobs, even foreign policy on crucial issues such as last year's coup in Honduras: all are hamstrung and harried by the unholy coalition of Republicans and DINOs who now attempt to filibuster 70% of significant legislation that goes through the Senate.

So, how could the filibuster be ended sooner? Here's a battle plan which could start today:

1.Get your ducks in line. That means that those in favor of this plan (Udall, Harkin, Menendez, Biden, Reid, and others) have to talk it up and build support in the senate. This does need 50 senate votes, plus Biden, to work.
2.Present a bill to change the Senate rules. I favor the Harkin proposal, which would allow the Senate to revote a filibuster every 3 days with a lower threshold - 60, then 57, then 54, then 51. This bill would also declare that, in the future, the senate will vote on rules at the beginning of each session, and that rules changes at other times would face a filibuster requirement that starts at 2/3, but which decays just as a normal filibuster: 67, 64, 61, 58, 55, 52, 51. That delay is enough to stop frivolous mid-session rules changes without being an unconstitutional prior restraint.

Continued>>>
http://www.dailykos.com/storyonly/2010/1/27/831003/-Constitutional-option-now,-not-next-year

[TheWraith]

1. So it's the "constitutional option," now? Same thing the Repubs called it...

...when we were threatening a filibuster of Alito. I don't like the fact that we suddenly consider it okay now and grossly unacceptable then.