A question about filibuster reform

[The Northerner]

I must admit that I've been busy with so many family and financial problems for the last few months and am also not as knowledgeable about senatorial rules as well so I'm a bit confused on the proposed filibuster reform proposals. :-(

If filibuster reforms are considered during the new session, are 67 votes needed to change the rules? According to this article, it states that 67 votes will be needed to change filibuster rules: http://thehill.com/blogs/blog-briefing-room/news/133709-dems-signal-push-for-filibuster-reform (quoted text below)

"Still, it could be difficult to secure any agreement to change the rules. Under Senate protocol, 67 senators would have to agree to change filibuster rules, meaning that at least nine GOP senators would have to vote for a change. That could be especially difficult, considering Republicans are still in the minority in the Senate in the next two years."


So, if Reid did consider modifying the filibuster would he need 67 votes to change it or just 51 votes to change the filibuster rules?

Thanks for any information provided.

[MiniMe]

1. I believe a simple majority is needed to change the rules at the start of the session

But during the session, a super majority of 67 is needed.

[The Northerner]

3. So Reid will have to make two changes?

One at the start of the new session and one during the new session? Did I read correctly?

[MiniMe]

8. No, if he makes it at the start of the session which would be the first day,

it would be a simple majority vote. But after that, it would have to pass cloture, so it wouldn't happen.

[Hippo_Tron]

4. There's no such rule that says you can change the filibuster with 51 votes on the first day

People have been saying this but it's simply not true. They've also been uttering the phrase "constitutional option" when saying it.

There is nothing constitutional about he constitutional option and it might be better known as the brute force option. It basically means that because the Democrats control the Senate, all of the officers and staff work for them. The Vice President is also a Democrat. Technically they can bring anything to a vote and simply ignore Republican objections. But there's no mechanism for this within the rules.

[Kennah]

5. United States v. Ballin (1892)

According to the SCOTUS, the Senate can change it's rules with a simple majority. However, a rule change could be filibustered.

[BzaDem]

6. The Constitution says that the Senate sets its own rules. Not some previous Senate.

It would be quite strange to say that the current Senate is somehow bound by the rules created by the 1806 Senate.

[Hippo_Tron]

9. The Senate has standing rules

http://en.wikipedia.org/wiki/Standing_Rules_of_the_United_States_Senate

http://rules.senate.gov/public/index.cfm?p=RulesOfSenateHome

http://rules.senate.gov/public/index.cfm?p=RuleV

They aren't re-adopted every single congress, they are permanent unless amended. That requires a 2/3rds vote for cloture should a rule change be filibustered and there's nothing that says that is true every day but the first day.

[BzaDem]

11. So? Just because the Senate has a rule doesn't mean that rule is Constitutional.

The Constitution is obviously a higher body of law than Senate rules. The Constitution says the Senate writes it's own rules. Not that some previous Senate 200 years ago writes the rules -- the Senate itself writes its own rules that it abides by.

The Senate could have a rule that states that no law shall be passed that allows a trial for someone accused of a crime. That doesn't mean the rule would be Constitutional.

The way this would work is that Reid would make a point of order at the beginning of the session saying that notwithstanding whatever the "standing rules" say, the Senate has the right to make its own rules each session under the Constitution (and to the extent the "standing rules" say otherwise, they violate the Constitution). Assuming Biden rules in favor of Reid's point of order, a Republican would appeal and Reid would move to table the appeal. A motion to table is non-debatable, is voted upon instantly, and only requires a majority vote to prevail. Once the appeal is tabled, the point of order is sustained, and the Senate can proceed to create new rules with a simple majority vote (just like the first Senate did).

[Hippo_Tron]

13. Which is the same argument Bill Frist used when he wanted to do this

It's an arbitrary reading of the constitution designed to further one's own agenda.

[BzaDem]

15. It's also the same argument Walter Mondale made when they lowered the threshold from 67 in 1975.

This is not an arbitrary reading of the Constitution. While I'm not fond of originalism as the sole means of looking at the Constitution, if I were to tell the founders that one Senate now can bind some future Sentate 100 years later, they would probably laugh me out of the room.

[Hippo_Tron]

18. I don't think they would

The fact that Senators serve staggered six year terms means that the Senate has been a continuous body since it first met and doesn't have to re-organize every two years. It is perfectly logical from that end that there can be standing rules that bind the next body unless they are changed.

Just because Nixon, Mondale, or whomever at the time was annoyed by the filibuster claims that the constitution says that you can change the rules without being subject to a filibuster doesn't mean they are right.

[MiniMe]

7. The first day is the start of the new session

Perhaps you misunderstood what I was saying. But after that it would have to pass cloture, which would be difficult in the next session. So the first day or it isn't going to pass imho

[Hippo_Tron]

10. There is nothing that says that you can pass a new rule without filibuster on the first day

The Senate has standing rules. They carry over from congress to congress. They require 51 votes to change and 2/3rds to break a filibuster on them. There is nothing special about the first day that allows you to change Senate rules with only 51 votes. You can change them with 51 votes only if nobody filibusters and that includes the first day.

http://rules.senate.gov/public/index.cfm?p=RuleV

http://rules.senate.gov/public/index.cfm?p=RuleXXII

[BzaDem]

12. The point is that the standing rules (if interpreted as binding future Senates) are Unconstitutional

And obviously, the Constitution is a higher body of law than Senate rules. When Senate rules violate the Constitution (which says the Senate sets its own rules -- not some Senate 200 years ago), then the Constitution takes precedence over the Senate rules.

And the the Senate itself (a majority of the Senate) decides whether Senate rules are Constitutional. (More specifically, it takes a simple majority to table an appeal of the ruling of the chair that it would be unconstitutional for previous Senates to bind future Senates.)

[Hippo_Tron]

14. Yes, according to you and Bill Frist it's unconstitutional

However, the Senate has had standing rules for pretty much the entire existence of the Senate and nobody raised any concern about their constitutionality until they got frustrated with the filibuster. The constitution doesn't say that the congress must adopt new rules every two years or that it must do so with only 51 votes. It just says that it sets its own rules.

[BzaDem]

16. The Constitutional option has been used or threatened many times in history.

Nixon wrote an initial parliamentary opinion in 1957, Mondale used this in 1975 to allow the cloture threshold to lower from 67 to 60, and its use was threatened to get the cloture threshold from 100 to 67 in the first place in the early 20th century. (Actually, there was no cloture at all before 1917, and the 12 Senators against adding a cloture process in the first place only stopped filibustering the treaty of Versailles when the rest of the Senate was about to use the Constitutional option to steamroll over the 12.)

"Each House may determine the Rules of its Proceedings"

The question is, what does "Each house" mean? Does it mean a 2/3 vote of the current Senate? A majority vote of the Senate 100 years ago? Or a majority vote of the current Senate? The most obvious reading of "each house" is clearly a majority of the current Senate. In fact, the Senate from 100 years ago is actually not the Senate, so that couldn't possibly apply. ("Each house" couldn't possibly refer to a bunch of dead people, or even a group of 100 live people who aren't currently Senators.) As for the threshold, there are plenty of other places in the Constitution where they specify non-majority thresholds (treaties, conviction upon impeachment, etc). Standard Constitutional (or even statutory) interpretation implies that when the threshold of a vote isn't mentioned, it is a simple majority.

However, my opinion or your opinion is basically irrelevant. The Senate itself decides Constitutional points of order (by majority vote). So all that matters is the Constitutional interpretations of the current Senators. This option has been used or threatened to be used many times (mostly by Democrats), and at this point it looks like it will be used again.

[Hippo_Tron]

19. You're trying to mock the Senate standing rules as "the will of Senators 100 years ago"

The constitution itself is a set of standing rules that the government abides by today, written by people over 200 years ago. We don't put it up to a simple majority vote every time a new people are elected to government.

Nothing in the constitution says that the Senate can't have standing rules. It says that it's up to the Senate to decide how it wants to set its rules. If the Senate wants to require 99 votes on Tuesdays and 25 votes on Wednesdays to change the rules, it's allowed to do that. The matter is up to the Senate.

Now let me add that I'm not arguing that the Senate standing rules are constitutionally binding, either. If 51 Senators want to change the rules by brute force they can legally and constitutionally do that and the courts nor anybody else has any right to intervene since the constitution says that these matters are entirely up to the Senate to decide.

51 Senators can say that it's time to stop operating according to tradition and start operating according to the will of the majority. But there's nothing in the constitution that says that's the preferred means of acting. It just says that Senators are required to decide amongst themselves, however they choose, how they are going to act.

[BzaDem]

20. Perhaps we agree then?

On the one hand, you are saying I am mocking the Senate's standing rules as "the will of Senators 100 years ago," and that is indeed exactly what I am doing. (If a Senate 100 years ago makes a rule that can't be changed by any future Senate in the same way the 100-year-old Senate changed the rules, then the standing rules are indeed the will of Senators 100 years ago -- by definition.)

This is indeed what happened in 1917. The ability to filibuster is a historical accident. It occurred when Aaron Burr suggested that the Senate simplify its complicated rules in 1806. They did so, but forgot to carry over a rule to call the previous question (like they now have in the House, and like they had in the Senate prior to 1806). Eventually, some Senators figured this out and gradually started to abuse it. It got to the point where in 1917, 86 Senators could not move to vote on the treaty of Versailles because 12 Senators would not stop talking. They decided that the Senate of 1917 was not going to be bound by rules from the Senate of 1806, and moved to change the rules by a majority vote. (Then the 12 backed down, and we got a cloture motion created.)

On the other hand, you seem to agree that the Senate can change its rules by a majority vote. That is all I am saying. I never said that the Constitution "prefers" that the Senate re-evaluate its rules every two years, or that it forces the Senate to do so. If they want to have standing rules and abide by them session after session, they can certainly do so, and this is usually how the Senate operates. But that is the decision of 51 Senators (in this case to passively go along with the standing rules and not object). All I'm saying is that the Constitution allows a determined group of 51 Senators to change the rules if they decide to do so, and while this may be considered by some to be unwise, it is not illegitimate (in the sense that Bush v. Gore was illegitimate).

If the Constitution said that each Senate was bound by the standing rules created by previous Senates, that would be a different story.

[Hippo_Tron]

21. They're not constitutionally bound by the rules, but...

My argument is still that the constitution prescribes no specific way for the Senate to set its rules. The constitution basically tells them "alright you're all adults, figure out how to conduct yourselves". Seems simple enough. So for 200 years the Senate conducted itself in a manner that says that things are done by consensus rather than simple majority and that rules and traditions from the previous congress are carried over.

In the past when the Senate disliked the rules it changed the rules from within. Maybe they would have done otherwise in 1917 if those 12 Senators hadn't caved, but they caved and the rules change was viewed as legitimate by 100% of the body even if they disagreed with the rules change. Maybe they would have done otherwise in 2005 if the gang of 14 hadn't forced the Democrats to cave. But they caved and the actions of the Senate continued to be seen as legitimate by 100% of the Senate, whereas the "nuclear option" was not.

By ending the filibuster with 51 votes you're making a rules change that is outside of the standing rules and thus viewed as illegitimate by half of the Senate. That's unprecedented and there is no telling what the fallout will be.

[Better Believe It]

17. Senate can change its rules and end Republican filibusters with a simple majority vote

And the Constitutional Option is considered by Democratic and Republican Senators to be constitutional.



Government running to stand still
By Clive Crook
February 14, 2010

Contrary to the belief of many Americans, the filibuster rule – which requires 60 senators to support “cloture”, thus bringing a measure under consideration to a vote – is not in the constitution. Getting rid of it does not require a constitutional amendment, which is a demanding process. The Senate could do this at its own initiative. Not only that, it could do it by simple majority vote.

Like most things on Capitol Hill, the process would be somewhat convoluted. A different Senate rule says that a supermajority in the chamber is needed to change Senate rules. Democrats would first have to revoke that rule, before moving on to the filibuster rule. The question is whether the change to the rule about changing rules would itself be constitutional, if it were passed only by a simple majority. The answer is that it would be.

Under the constitution, this is a matter of internal procedure, for the Senate to decide. If it chooses, it can impose on itself restrictions like the filibuster rule or the rule-making rule. But it can also subsequently remove them: otherwise, any one Senate might bind its successors in perpetuity. There is nothing in the constitution to say that changes to the rule-making rule need a supermajority.

Read the full article at:

http://www.ft.com/cms/s/0/5261ee22-199b-11df-af3e-00144feab49a.html#axzz193roFalg

The Republicans won't hestitate to stop Democratic "filibusters" if they win a Senate majority and the White House in 2012.

They don't need an excuse. They didn't need one in 2005 when they threatened to use the Constitutional Option to prevent a filibuster against Bush's Supreme Court appointments. In response to this threat, Democratic Senate leaders surrendered the right to filibuster.

The Republicans will stop any Democratic filibusters they don't like. They won't bluff.

If necessary, the Republicans will get a ruling from the President of the Senate that only a majority of votes is required to end debate on any legislative proposal or appointment and/or that Senate rules can be changed at anytime by a simple majority of Senators using the "Constitutional Option.

Republican were not afraid to threaten that in 2005 when they had a majority in the Senate and they are even less likely in the future to hesitate in using their Senate power to end Democratic procedural filibusters or Senate floor filibusters.

And Senate Democrats can easily halt Republican "procedural filibusters" next year. All they have to do is stop their "dual-track" practice!

Here's the facts on that:

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=439x51481

[Warren Stupidity]

2. Ask Bill Frist.

In U.S. politics, the nuclear option allows the United States Senate to reinterpret a procedural rule by invoking the argument that the constitution requires that the will of the majority be effective on specific Senate duties and procedures. This option allows a simple majority to override the rules of the Senate and end a filibuster or other delaying tactic. In contrast, the cloture rule requires a supermajority of 60 votes (out of 100) to end a filibuster. The new interpretation becomes effective, both for the immediate circumstance and as a precedent, if it is upheld by a majority vote. Although it is not provided for in the formal rules of the Senate, the nuclear option is the subject of a 1957 parliamentary opinion by Vice President Richard Nixon and was endorsed by the Senate in a series of votes in 1975, some of which were reconsidered shortly thereafter. Senator Trent Lott (R-Miss.) first called the option "nuclear" in March 2003. Proponents since have referred to it as the constitutional option.

The maneuver was brought to prominence in 2005 when then-Majority Leader Bill Frist (Republican of Tennessee) threatened its use to end Democratic-led filibusters of judicial nominees submitted by President George W. Bush. In response to this threat, Democrats threatened to shut down the Senate and prevent consideration of all routine and legislative Senate business. The ultimate confrontation was prevented by the Gang of 14, a group of seven Democratic and seven Republican Senators, all of whom agreed to oppose the nuclear option and oppose filibusters of judicial nominees, except in extraordinary circumstances.