Nuclear Option: Byrd Confusion Debunked

Update [2005-5-14 19:46:1 by Armando]: From the diaries by Armando. I just am sick of hearing this falsehood repeated and hope this ends it once and for all here at dailykos.

There's a persistent misunderstanding in certain circles about the nuclear option, that is, the schoolyard taunt that, "they started it."

Underlying the charge: Senator Byrd, in his capacity as Majority Leader, "has used parliamentary tactics and majority votes to accomplish procedural rule changes."

What such charges fail to note, in each of the examples cited, is that the changes were always executed by means well within the contemplation of Senate rules and not, as the execution of the nuclear option requires, in contravention of them.

One poor soul at dKos keeps demanding answers to these charges -- answers to which he'd be entitled but for his rather unfortunate insistence on resorting to racial epithets when he finds himself in contentious disagreements.

Although this comment has been twice hidden, I revive them here to lay out the charges as listed:

In 1977, Byrd Broke A Filibuster Using A Simple Majority Of Senators. "In 1977, Byrd led a Senate majority in setting a precedent to address a loophole that then existed in Rule XXII's cloture device--the post-cloture filibuster. . . . The result was that a majority of Senators had succeeded in altering Senate procedures without changing the text of a Standing Senate Rule. . . . Byrd called up thirty-three amendments in succession, foreclosing all appeals along the way, and the filibuster was broken." (Martin B. Gold & Dimple Gupta, "The Constitutional Option To Change Senate Rules And Procedures: A Majoritarian Means To Over Come The Filibuster," Harvard Journal of Law & Public Policy, 2004, pp. 2262-64) (internal citations omitted)

In 1979, Byrd Broke A Filibuster By Threatening To Change The Rules, Arguing "This Congress Is Not Obliged To Be Bound By The Dead Hand Of The Past" And That Senate "Rules Have Been Changed From Time To Time." "In 1979, faced with a potential filibuster on his rules-change proposal, Senator Robert C. Byrd (D-WV) raised the possibility that the U.S. Constitution provides the majority with a method for overriding the Senate's cloture rule:

The Constitution in article I, section 5, says that each House shall determine the rules of its proceedings. Now we are at the beginning of Congress. This Congress is not obliged to be bound by the dead hand of the past.

. . .

The first Senate, which met in 1789, approved 19 rules by a majority vote. Those rules have been changed from time to time . . . . So the Members of the Senate who met in 1789 and approved that first body of rules did not for one moment think, or believe, or pretend, that all succeeding Senates would be bound by that Senate. . . . It would be just as reasonable to say that one Congress can pass a law providing that all future laws have to be passed by two-thirds vote. Any Member of this body knows that the next Congress would not heed that law and would proceed to change it and would vote repeal of it by majority vote.

[I]t is my belief--which has been supported by rulings of Vice Presidents of both parties and by votes of the Senate--in essence upholding the power and right of a majority of the Senate to change the rules of the Senate at the beginning of a new Congress.

In 1980, Byrd Changed Senate Procedure For The Consideration Of Executive Nominations. "In March 1980, Byrd led the Senate Democrats in changing the Senate's procedures for the consideration of nominations. The Senate's Executive Calendar lists both treaties and nominations, in that sequence. Prior to March 1980, it had `been determined by a precedent that a motion to go into executive session, being nondebatable, [would] automatically put the Senate on the first treaty.' . . . On March 5, 1980, Byrd offered a motion [to enter executive session and proceed directly to the nomination of Robert White as Ambassador to El Salvador] . . . Senator Jesse Helms (R-NC) raised a point of order against the motion . . . . The Presiding Officer immediately sustained Helms's point of order: Under the rule . . . only a motion to go into executive session is in order. Byrd appealed the ruling, arguing that there was no logical reason for the Senate to distinguish between a motion to proceed to the first nomination and a motion to proceed to the first treaty. . . . That same day, the Senate rejected the ruling of the Chair by 38-54, almost completely on party lines. Due to Byrd's new precedent, motions to proceed to nominations are no longer debatable. (Martin B. Gold & Dimple Gupta, "The Constitutional Option To Change Senate Rules And Procedures: A Majoritarian Means To Over Come The Filibuster," Harvard Journal of Law & Public Policy, 2004, pp. 265-67)(emphasis added and internal citations omitted)

In 1987, Byrd Changed Senate Procedure "Contrary To The Plain Text Of A Standing Senate Rule." "In 1987, a Byrd precedent once again changed Senate procedure to run contrary to the plain text of a Standing Senate Rule. . . . Through a series of votes that ran almost entirely along party lines, Byrd succeeded in establishing three precedents that radically changed voting procedures under Rule XII." (Martin B. Gold & Dimple Gupta, "The Constitutional Option To Change Senate Rules And Procedures: A Majoritarian Means To Over Come The Filibuster," Harvard Journal of Law & Public Policy, 2004, pp. 267-68) (internal citations omitted)

The Rebuttals

1977

What's the key to this one? It's not what the commenter provides us with, it's what he doesn't. You'll notice, of course, the extensive use of ellipses in the quotation. What's missing? I'll begin by reprinting the entirety of the cited section of the Gold/Gupta article (PDF), bolding the sections we were provided with. Why those parts? Because it's easier than bolding what was left out:

"In 1977, Byrd led a Senate majority in setting a precedent to address a loophole that then existed in Rule XXII's cloture device--the post-cloture filibuster. Senators Howard Metzenbaum (D-OH) and James Abourezk (D-SD) had set out to filibuster a proposal to deregulate natural gas prices. The Senate had invoked cloture, triggering Rule XXII's provisions limiting each Senator to one hour of debate and prohibiting any "dilatory amendment, or amendment not germane," but to no avail. Metzenbaum and Abourezk circumvented these limits by proffering a slew of amendments without debating them (thus preserving their time for debate) and then forcing quorum calls and roll call votes for each proffered amendment. Further, making points of order against the amendments would not save time or avert these filibusters by roll call. Although a point of order, if decided by the Chair, was not debatable, an appeal from the Chair's ruling was debatable. Under the Senate's rules, the minority could appeal the Chair's ruling on the point of order, debate the appeal, and thereby continue their delaying tactics. If a motion were made to table the appeal, Metzenbaum and Abourezk would secure a roll call vote on the tabling motion. The result was that by October 3, 1977, the Senate had spent "13 days and 1 night" debating the natural gas bill, which included "121 rollcalls" and "34 live quorums."

That day, Byrd set in motion a two-part plan to end this postcloture filibuster. First, he sought partially to reverse the Senate procedure requiring the Chair to wait for a point of order before ruling on a procedural defect:

I make the point that when the Senate is operating under cloture the Chair is required to take the initiative under rule XXII to rule out of order all amendments which are dilatory or which on their face are out of order.

The Vice President sustained Byrd's point of order:

[T]he point of order is well taken. The Chair will take the initiative to rule out of order dilatory amendments which, under cloture, are not in order ... . and which on their face are out of order[.]

Abourezk criticized Byrd for attempting "to change the entire rules of the Senate during the heat of a debate ... on a majority vote" (that is, for attempting to exercise a variant of the constitutional option [Ed. note: not an accurate characterization]) and appealed the ruling. Byrd responded with a tabling motion, which carried 79-14. The result was that a majority of Senators had succeeded in altering Senate procedures without changing the text of a Standing Senate Rule. Armed with this new precedent, Byrd began calling up procedurally defective amendments filed by Abourezk and Metzenbaum. The Chair then ruled each amendment out of order without waiting for a Senator to raise a point of order against his ruling. Despite Byrd's assurances to Senators Howard Baker (R-TN), Edmund Muskie (D-ME), and Abourezk that the right to appeal would remain untouched if his point of order were sustained, Byrd exercised his Majority Leader's right of preferential recognition to call up the next amendment before Abourezk could appeal, thus mooting the possibility that Abourezk could appeal the earlier ruling. Byrd called up thirty-three amendments in succession, foreclosing all appeals along the way, and the filibuster was broken."

What does it mean?

The upshot is this: The 1977 filibuster had already been broken by the time Byrd executed his maneuver. Metzenbaum and Abourezk simply refused to acknowledge that fact. Rule XXII , as it stood before Byrd set this precedent, already made Metzenbaum and Abourezk's amendments out of order. Cloture had already been invoked under the existing rules, and Byrd's maneuver clarified the question of whether or not it would have teeth, that is, whether or not the chair was empowered to actually enforce the rule of its own volition, or whether it had to wait for another Senator to point out what everyone who could read the rule already knew: that the amendments were dilatory and out of order.

Note also that Byrd's tabling of Abourezk's appeal of the chair's ruling succeeded by a vote of 79-14, well in excess of the 2/3 majority needed to change Senate rules.

1979

I'll bold the key stuff for you, so that when I refer you to the rebuttal I've already given to this part, you'll understand where I'm coming from:

"In 1979, faced with a potential filibuster on his rules-change proposal, Senator Robert C. Byrd (D-WV) raised the possibility that the U.S. Constitution provides the majority with a method for overriding the Senate's cloture rule:

The Constitution in article I, section 5, says that each House shall determine the rules of its proceedings. Now we are at the beginning of Congress. This Congress is not obliged to be bound by the dead hand of the past.

. . .

The first Senate, which met in 1789, approved 19 rules by a majority vote. Those rules have been changed from time to time . . . . So the Members of the Senate who met in 1789 and approved that first body of rules did not for one moment think, or believe, or pretend, that all succeeding Senates would be bound by that Senate. . . . It would be just as reasonable to say that one Congress can pass a law providing that all future laws have to be passed by two-thirds vote. Any Member of this body knows that the next Congress would not heed that law and would proceed to change it and would vote repeal of it by majority vote.

[I]t is my belief--which has been supported by rulings of Vice Presidents of both parties and by votes of the Senate--in essence upholding the power and right of a majority of the Senate to change the rules of the Senate at the beginning of a new Congress.

I now refer you to this rebuttal, posted here, plus Parts Four and Five of my nuclear option series at The Next Hurrah. They'll take you through the importance of timing with respect to previous Vice Presidential rulings on the appropriateness of rules changes by simple majority. In short, this is a highly questionable doctrine as it is, but even accepting it for the sake of argument, the precedent is clear: this is something permissible only at the beginning of a new Congress. Which is not where we are now.

1980

"In March 1980, Byrd led the Senate Democrats in changing the Senate's procedures for the consideration of nominations. The Senate's Executive Calendar lists both treaties and nominations, in that sequence. Prior to March 1980, it had `been determined by a precedent that a motion to go into executive session, being nondebatable, [would] automatically put the Senate on the first treaty.' . . . On March 5, 1980, Byrd offered a motion [to enter executive session and proceed directly to the nomination of Robert White as Ambassador to El Salvador] . . . Senator Jesse Helms (R-NC) raised a point of order against the motion . . . . The Presiding Officer immediately sustained Helms's point of order: Under the rule . . . only a motion to go into executive session is in order. Byrd appealed the ruling, arguing that there was no logical reason for the Senate to distinguish between a motion to proceed to the first nomination and a motion to proceed to the first treaty. . . . That same day, the Senate rejected the ruling of the Chair by 38-54, almost completely on party lines. Due to Byrd's new precedent, motions to proceed to nominations are no longer debatable.

What does it mean?

Here we have an example of pure Senatorial hardball. Pure both in the sense that it shows the extent to which a majority may exercise its power, as well as in the sense that it was executed entirely within the contemplation of the existing rules, breaking none.

The Senate rules have always contemplated that a majority may overrule or sustain the opinion of the chair at its election, and thereby set a precedent. The same prerogative is indisputably available to today's Republican majority.

But here's the key difference between this example and the one planned for the execution of the nuclear option: In 1980, when Byrd proposed a reading of Rule XXII that appeared to violate its meaning, the chair, advised by the Parliamentarian, rejected Byrd's point of order. A majority thereafter reversed the ruling of the chair, establishing its preferred precedent. The nuclear option, however, depends on the chair ignoring the advice of the Parliamentarian, and ruling contrary to established precedent.

This is crucial. If the chair were to rule in concordance with precedent in the execution of the nuclear option, as it did in 1980, it would be Frist and the Republicans appealing the ruling, and Reid moving to table the appeal. Were the Republicans then able to defeat the motion to table (by majority vote), the appeal would then be debatable, and thus subject to filibuster, bringing the nucleo-cons back to square one. It is therefore critical to the success of the nuclear option that the Senate's presiding officer do the dirty work of the majority for it, and break the rules from the chair, quite unlike the 1980 example.

1987

Here, I'll begin by adding back what's missing, bolding only what was provided in the excerpt, as before, and simply ask, Is this something the Republicans are proud of, and really thought that the spirit of the rules would be undermined by eliminating?:

"In 1987, a Byrd precedent once again changed Senate procedure to run contrary to the plain text of a Standing Senate Rule. A Republican minority had launched a campaign of delay to prevent the Senate
from taking up a Defense authorization bill. The minority invoked Senate Rule XII, which requires that during a roll call, if a Senator declines to vote on a call of his or her name, that Senator must give reason for doing so and the Presiding Officer must put a nondebatable question to the Senate on whether the Senator shall be excused from voting. During a roll call on a Byrd motion to approve the Journal, Senator John Warner (R-VA) declined to vote, explaining that he had "not read the Journal." In accordance with Rule XII, the Presiding Officer then initiated a vote to determine if Senator Warner should be excused. Before a vote could be announced, Senator Dan Quayle (R-IN) declined to vote on whether Warner should be excused. A vote followed on whether to excuse Quayle, during which Senator Steve Symms (R-ID) declined to vote. At that moment, four votes were stacked: the vote on Senator Byrd's original motion to approve the Journal; within it, the vote on whether Warner should be excused; within that vote, a vote on whether Quayle should be excused; and within that vote, a vote on whether Senator Symms should be excused. The tactic could be employed endlessly.

Byrd countered with a point of order. He posited that during a roll call on a motion to approve the Journal, repeated requests by Senators to be excused from voting were dilatory and out of order:

Mr. President, I make a point of order that the request of the Senator to be excused from voting is for the purpose of delaying the conclusion of the vote that the Journal be approved to date; that in amending rule IV, the Senate intended that a majority of the Senate could resolve the question of the reading of the Journal; I make my point of order that a request of a Senator to be excused from voting on a motion to approve the Journal is, therefore, out of order and that the Chair proceed immediately, without further delay ... .

Through a series of votes that ran almost entirely along party lines, Byrd succeeded in establishing three precedents that radically changed voting procedures under Rule XII." Prior to that day, dilatory actions were deemed out of order only after cloture had been invoked. Although cloture had not been invoked on the pending measure, Byrd's new precedents established:

First, a point of order may be made during a rollcall vote on, or subsumed by a vote on, a motion to approve the Journal that repeated requests by Senators to be excused from voting on any such vote is out of order as dilatory.

Second, repeated requests by Senators to be excused from voting on a vote on, or subsumed by a vote on, a motion to approve the Journal, when they are obviously done for the purpose of delaying the announcement of the vote on the motion to approve the Journal, are out of order.

Third, a Senator has a limited right to explain his reasons for declining to vote, but may not go on "forever" stating his reasons for not voting.

Although the precedents were technically limited to proceedings on a motion to approve the Journal, Senator Alan Simpson (R-WY) argued that their reach was far broader. He noted that Rule XII barred all motions and unanimous-consent requests to suspend its provisions. Simpson pointed out that the Senate had, in establishing three precedents that contradicted Rule XII, violated this provision. This, he explained, set a precedent that "a simple majority" could constrain debate even when the Standing Rules appeared to prohibit such an outcome.

Power play? Sure. Sustained by the vote of a simple majority? Sure. Available to be reversed by the current GOP majority? Absolutely, though I note there's been no rush to do so, despite Senator Simpson's objections. But an appropriate example illustrating that hypocrisy on procedural rules is a partisan trait? Nobody but a fool would believe that. Which is perhaps why it's such a popular belief among those who read only the most favorable excerpts from such a shaky article.

Conclusion

At bottom, the 1987 example is no different from the 1980 example, in that it was executed entirely within the acknowledged framework of the rules, whereas the nuclear option depends on convincing the supposed arbiter of the rules to cheat on the majority's behalf.

And that's what separates all of Byrd's maneuvers from the nuclear option. Byrd played hardball, but he never asked the Vice President to cheat and do his dirty work for him. When Byrd ran the Senate, Senators had to shoulder that burden directly.

•  i {heart} Kagro X

  You, my friend, are remarkable.  Highly recommended, excellent rebuttal!

  by georgia10 on Sat May 14, 2005 at 03:58:15 PM PDT

  •  i {heart} blogs.

    A few years ago, this would all have been shouted at the TV set.

    by Kagro X on Sat May 14, 2005 at 04:40:26 PM PDT

    •  Treating this post as a tip jar

      Would that I could give you a 5.

      Byrd simply would not have been party to radically, emphasis radically, altering Senate process and tradition.

      by Cream City on Sat May 14, 2005 at 04:44:56 PM PDT

    •  a few years ago

      a few years ago, we were not marching proudly to armageddon.

      by common terry on Sat May 14, 2005 at 04:47:04 PM PDT

    •  All of it?

      You would have gone through a lot of throat lozenges.

      And probably frighted the little Kagros to teeny X-y bits.

      Good things there are now blogs, indeed.

      by boadicea on Sat May 14, 2005 at 04:57:26 PM PDT

    •  Can I just say...

      I love you both?

      Come on over.

      Margaritas.  Or coffee.  Or whatever.

      by ogre on Sat May 14, 2005 at 11:27:11 PM PDT

•  Simple majority rule changes

  Whether or not at the beginning of a new Congress, do you interpret the Constitution (Art. I, §5, cl. 2) to mean that the Senate gets to set its rules by a simple majority vote?  That is, where the Constitution requires 2/3 for expulsion, do you interpret its silence to require a simple majority for rule changes?

  by Categorically Imperative on Sat May 14, 2005 at 03:59:37 PM PDT

  •  No.

    I don't. But the chair has on several occasions insisted that Art. I, §5, cl. 2 permits such an outcome, but only at the beginning of a new Congress.

    I addressed it in your diary.

    Myself, I believe that Art. I, §5, cl. 2 gives the Senate the right to set its rules, and it has done so, including setting a rule that makes it difficult to change the rules.

    The theory under which a new Congress permits a window of opportunity for such a change is that at that until a new Senate (if there is such a thing) acquiesces to the standing rules, it operates (as the House does) under general parliamentary law. But as I understand it, general parliamentary law typically requires a 2/3 vote for changes to the standing rules.

    But, of course, general parliamentary law doesn't say anything about what vote is necessary to change some other set of rules -- in this case, the standing rules of the Senate.

    I think that's ridiculous. Of course general parliamentary law doesn't regulate the rules changes of other bodies. But neither would other bodies, which have their own rules and by choice do not operate under general parliamentary law, recognize the right of some another body to set its rules.

    by Kagro X on Sat May 14, 2005 at 04:18:38 PM PDT

    •  Thanks

      I'll try not to repeat what I posted in my response in my diary thread.  I don't just think the Constitution permits such an outcome, I think it requires it, for the reasons stated in the diary.  As for assuming the acquiescence of the Senate in continuing with the previous rules, I think the logic of that is the logic of unanimous consent, which we don't have here because Frist objected.  I do not see any reason why a Senator cannot reserve the right to place a motion to change or amend the rules on the table during the "open window" period, though until the motion is made the Senate would continue operating under existing rules.  

      by Categorically Imperative on Sat May 14, 2005 at 04:38:43 PM PDT

      •  Was a motion made?

        Or an objection preserved?

        When did Frist make his motion?

        When would he have to make his motion?

        That simply seems absurd to me.

        by Armando on Sat May 14, 2005 at 04:44:32 PM PDT

        •  The absurdity, if any

          Is a consequence of Senate procedure.  The idea that the rules just keep chugging along, unless someone "takes action" otherwise, is simply a result of Nixonian rulings from the Chair and is predicated, I would argue, on the Senate tradition of unanimous consent.  Now, supposing that there's some limited window for rule changes based on simple majority votes (something I doubt is true given the Constitution), then I think Frist's action was enough to preserve his right to bring a motion to the floor later.  

          He made his statement on the first day the Senate was in session.  I don't know what you mean by an "objection," since there's no official mechanism for lodging one beyond what Frist did.  He surely didn't make a motion, but I don't think that's the end of it.

          by Categorically Imperative on Sat May 14, 2005 at 04:48:18 PM PDT

          •  But let's assume otherwise

            Let's assume there are NO rules when the Senate convenes.

            The motion is made to adopt the existing rules. No one speaks but some Senator, say the Majority Leader (which is an absurdity in and of itself, as it is incumbent, one would think, upon the Majority Leader to organize the body), says fine for now but I reserve my right to . . .  what? Vote no? Vote yes? What right is he reserving? The right to make a motion? He has that right under the existing rules. He doesn't need to reserve that right. What exactly, CI is he reserving?

            You know what he is trying to reserve, the right to change the rules by majority vote. But that right expires once the existing rules are adopted. Rule 22 says so.

            It was all or nothing for Frist the first day the Senate convened. He chose nothing.

            Now he will break the rules. I don't see any merit to your argument on that point at all. There is nothing wrong with the Senate rules that cause a problem. the problem is Frist didn't have the balls to fight the rule change issue when he was suppposed to.

            As for the merit of the rule change argument, that is another question. But the WHEN Frist shoudl have done it - come on man, you know he should have done prior to the readoption of the existing rules.

             

            by Armando on Sat May 14, 2005 at 04:57:26 PM PDT

            •  But that analogy doesn't apply

              Because there wasn't a motion to adopt the existing rules, the Senate just chugged right along.  That practice derives its most recent justification from a ruling Nixon made when he was VP.  And the basis for it, unless someone can either prove or convince me otherwise, is that when it does so the Senate unanimously consents to operating under the existing rules.  But that argument is unavailable when one Senator is on record as opposing one of the existing rules.  

              But forget Frist for a moment.  I'm not going to dig up the prior posts, but everyone here (and elsewhere) who's discussed the issue concedes that, in the case of the "advice and consent" clause, a 2/3 supermajority is not required to confirm judicial nominees.  Why?  Because the constitution specifies that a 2/3 majority is required to ratify treaties, but makes no such provision for nominees, meaning that they require a simple majority to be approved.  Our side of the debate has been simply that there are many ways, other than an up or down vote, to demonstrate non-consent.

              That being the case, how can one read the Constitution to state anything other than that the Senate may make and change its rules by a simple majority vote?  Article I, §5, cl. 2 is constructed in exactly the same way as the "advice and consent" clause when it comes to the omission of a 2/3 requirement for all but one category of actions.  It seems clear, then, that a simple majority is all that is needed to change the rules, and if Rule XXII requires otherwise, then it is unconstitutional.  

              If that argument is correct, then it doesn't matter when Frist tries to change the Rule, because all he'll ever constitutionally need is a simple majority.

              by Categorically Imperative on Sat May 14, 2005 at 05:11:22 PM PDT

              •  Oh come on

                So what have been the rules that have been in place since May?

                For everything.

                That is sophistry CI. Why was there no motion to adopt? Because the existing rules are deemed operative by custom.

                Now, if Frist wanted to make a point of NOT following the existing rules, as Majority Leader, he should have brought a motion immediately to say, I don't want these rules, we're changing them.

                By operating under the existing rules for 5 months, hemade it clear that THIS Senate was following the existing custom of operating under existing rules.

                You know you are p--sing in the wind here. And I am not sure why you are. By conceding this obvious point you concede nothing of your Constitutional argument.

                by Armando on Sat May 14, 2005 at 05:20:30 PM PDT

                •  I still disagree

                  My point is that the "custom" of moving forward with the old rules relies on a sort of fictional unanimous consent (as in, well, if no one objects or moves new rules, then I guess everyone's OK with the old rules).  You're arguing that Frist lost his chance by stating an objection but never acting on it.  I don't see why that's the case, even if the old rules have, for lack of anything better, been operative.  Even more to the point (and I don't know the answer on this), has any aspect of Rule XXII been invoked since January?  Because Frist singled that one out, meaning that he's got no objection to all the other rules continuing.  Thus, he could argue that because of his objection Rule XXII hasn't been operational, custom or not, (but the other old Rules ARE in effect) and make his motion the first time someone tries to invoke it.

                  All that aside, I'll concede the point so we can discuss the Constitution.  Because that's the heart of the issue whether Frist's "reservation" means anything or not.

                  by Categorically Imperative on Sat May 14, 2005 at 05:28:30 PM PDT

                  •  Come on

                    The rules havebeen operative. The Senate hasbeen running on these rules.

                    UNLESS the rules have not been implicitly adopted, then how in the hell has the Senate been functioning?

                    See if Rule 22 is not effective now, then why does a ruling from the Presiding Officer on filibuster become necessary?

                    Why not just say there is no Rule 22?

                    by Armando on Sat May 14, 2005 at 05:31:55 PM PDT

                    •  OK

                      There is no Rule 22.

                      by Categorically Imperative on Sat May 14, 2005 at 05:42:48 PM PDT

                      •  Heh

                        Pull my finger.

                        by Armando on Sat May 14, 2005 at 05:53:46 PM PDT

                        •  Good point CI's argument proves too much

                          if Rule 22 is not effective now, then why does a ruling from the Presiding Officer on filibuster become necessary?
                          Why not just say there is no Rule 22?

                          OK .. There is no Rule 22.

                          Heh . . .  Pull my finger.

                          This exchange highlights a big problem  with CI's argument here:  if followed to its logical conclusion it says that there are no rules on anything and that it was all just a big illusion.  If  CI is right the Republicans don't need to bother with some limited and wimpy thing like the nuclear option -- they could use  the 'H-Bomb Option' which goes like this

                          At any point where any rule is about to be applied to anything, a Republican senator makes a "constitutional" point of order that since this particular Senate has not yet adopted any rules for itself, as the Constitution requires, therefore there are no rules. The Vice President rules in favor of this point and then when the the Democrats object, the Republicans just shouts them down and the Vice President rules all objections out of order. 

                          After all there are no rules. Then, when the Democrats start to raise their voices the way they do, the Vice President orders that the C-SPAN cameras turned off and marital music played while a special contingent of capital police already assembled nearby remove the Democrats from the chamber.

                          by Fred in Vermont on Sat May 14, 2005 at 08:01:18 PM PDT

                          •  I may prove too much

                            But not quite THAT much.  My point is this: assuming that the Senate has consented to the old rules going forward might make sense IF the new Senate has actually acted on the assumption that the old rule applies.  Thus, any time the new Senate has done something in reliance on an old rule, we can assume that the new Senate consents to that rule's operation.

                            WRT Rule XXII, I'm not sure anything this Senate has done requires that we assume Rule XXII is in effect.  Thus, there isn't necessarily a problem with questioning the Rule the first time it is applied in this Senate.

                            Basically, my argument is a way of understanding when the window closes in the "open window" situation of rulemaking (where each new Senate has a certain window of time in which it can set its own rules by majority vote).  My suggestion is that a Senate implies its consent to the old rules each time it acts in reliance on them.

                            by Categorically Imperative on Sat May 14, 2005 at 08:30:46 PM PDT

                            •  Incremental Adoption makes no sense

                              WRT Rule XXII, I'm not sure anything this Senate has done requires that we assume Rule XXII is in effect.

                              That's silly.  Cloture has been invoked dozens of times.  Under your incremental adoption idea someone would need to keep track of each rule and the first time any are invoked it would be in order to object on the grounds that it had not yet been adopted.  Or perhaps the a senator at the opening could just get up and say he was "reserving' objections to any and all rules.  In effect that is what Majority Leader Bill Frist did when he first spoke at the opening of this senate.  But assuming for the sake of argument that  his mere opening statement really changed anything I suppose one could argue that because Frist has not repeated his 'reservations' about Rule XXII each time he relied upon it in this Senate he has waived it.   

                              My suggestion is that a Senate implies its consent to the old rules each time it acts in reliance on them.

                              That seems to me to just be a watered down version of the idea that there are no rules when each senate opens and is designed to make a radical and counter-historical argument seem less sweeping and more acceptable. 

                              My position is that the rules mean just what they say and they can be changed at any time with a debatable motion  that requires a 2/3 vote to pass. You may argue that it is unconstitutional but there are good counter arguments.  But since the senate adopted this rule the senate itself has implicitly said that it finds this constitutional.  If one feels that this is incorrect then the only proper way to debate and decide this issue is with a debate and vote by the full senate. It clearly would not be proper for the Vice President to make such a fiat from the chair of the Senate.

                              by Fred in Vermont on Sun May 15, 2005 at 04:09:16 AM PDT

                  •  As for the Constitutional Question

                    I'll save that argument for January 2007.

                    Heh.

                    by Armando on Sat May 14, 2005 at 05:32:39 PM PDT

                    •  Hmmm, clever

                      But my point is that the window is always open, not just at the beginning of a session.  The Constitution requires that the Senate be able to set its rules by simple majority vote, and I don't see any reason why the Senate cannot change its rules mid-session.  Indeed, the Constitution would appear to allow the Senate the freedom to decide when it wants to change the rules.

                      by Categorically Imperative on Sat May 14, 2005 at 05:44:25 PM PDT

                      •  Ay ay ay

                        So the filibuster rule is unConstitutional.

                        You have jumped the shark with that one. Frist doesn't even say that.

                        by Armando on Sat May 14, 2005 at 05:55:22 PM PDT

                        •  That's because Frist is a punk

                          and an incompetent one, at that.  Not the filibuster rule, but the filibuster rule as applied to rules changes.  What's the alternative reading of the Constitution?  That the first Senate could have set a rule mandating 100% concurrence to change the rules, and then every single Senate would thereafter be bound by those rules?  That makes no sense, imo.  The other option is the "window of opportunity" theory, under which the incoming Senate can change rules by a majority vote, but that's a baby-splitting compromise that doesn't find any constitutional support (where in the Constitution is there any guidance as to how long the window stays open?).

                          by Categorically Imperative on Sat May 14, 2005 at 06:13:30 PM PDT

                          •  I have a candidate:

                            where in the Constitution is there any guidance as to how long the window stays open?

                            If I had to guess, it would be the part that says the Senate has the right to make its own rules, and then when they either don't, or instead proceed under the old ones, that's when it closes.

                            It's the Senate as a body that has that right. If it has proceeded but one Member pretends he hasn't, I'm not sure what we're supposed to make of that.

                            But it might be worth mentioning in the debate. "You think Democrats are holding things up? Bill Frist is going to pretend it's still January!"

                            by Kagro X on Sat May 14, 2005 at 06:36:50 PM PDT

                            •  Except that

                              If I had to guess, it would be the part that says the Senate has the right to make its own rules, and then when they either don't, or instead proceed under the old ones, that's when it closes.

                              The constitution doesn't say the second half.  And I have still yet to hear the principled reason behind the proposition that a simple majority can change the rules (including the 2/3 rule change requirement) in the beginning of a session or else not at all.  It makes no sense.  Proceeding under the rules in the beginning is based on an inference (at best) that the Senators are happy with existing rules.  If it becomes certain later that more than 1/2 but less than 2/3 want to change the rules, why should they be barred from doing so?  A mid-session rule change wouldn't threaten the validity of earlier legislation; it's valid under the rules that existed at that time.

                              Either the Constitution permits simple majority rule changes or it does not, and I think the former is a better reading of the text.  Once the "open window" theory is allowed, I fail to see how it is sensible to prevent simple-majority rule changes.  Doing so substitutes silent, implied consent for vocal, unequivocal dissent, and that makes no sense.

                              by Categorically Imperative on Sat May 14, 2005 at 06:46:37 PM PDT

                              •  i disagree

                                Either the Constitution permits simple majority rule changes or it does not

                                why can't we accept that the constitution is simply silent on the matter, allowing the senate to decide on its own whether that is acceptable.

                                by bnanaman on Sat May 14, 2005 at 07:05:46 PM PDT

                              •   2/3 rule reflects ongoing nature of the Senate

                                I have still yet to hear the principled reason behind the proposition that a simple majority can change the rules (including the 2/3 rule change requirement) in the beginning of a session or else not at all.

                                This idea that there is a  51% window when each senate opens for business is something that some scholars have opined upon and certain Senators and Vice Presidents have from time to time ruminated about on the record but  have never acted  on. The reason that they did not act is that they were wimps.  And that was also the reason that they limited the 'constitutional' 51% to a "window".   That was just a way to limit the ramifications of the argument that 2/3 to change the rules is unconstitutional and make the idea more acceptable just in case anyone ever got the nerve to act on it. 

                                In a very similar way Fisk has wimpled down his "constitutional" argument to only apply to judicial nominations.  There no "principled reason" behind that limitation.  But its purpose is to limit the scary ramifications of just deciding that the 2/3 rule itself is unconstitutional.

                                The position that can be supported with 'principled reason'  it that the 2/3 rule does not contradict the constitution, because in the context of a continuing body  where no more than 1/3 of the members can possibly be new in each "new" senate the 2/3 rule can be viewed as a form of majority requirement since in effect says that even if all of the 1/3 new members of the Senate wanted to change the rules that the prior senate had adopted or accepted, they would require a majority of the 2/3 "old" senators to do so.   So the 2/3 rule is not some arbitrary restriction but rather reflects the unique 1/3 - 2/3 ongoing character that the constitution itself gives to the senate.  The constitution does not require the rule but the rule is in harmony with that particular sort of ongoing body.

                                Now I know that some people will say that this is just a cleaver argument and that there is a contrary argument to be made.  But the real question here is just who is it that is entitled to make a decision about whether a rule of the senate conforms to the constitution?  The traditional rule in the Senate has been that since the Senate is a co-equal branch of government it not only makes its rules but also decided how the constitution applies to them.  The Federal courts are very unwilling to get involved in almost any such arguments, and the long term precedent of the senate has been that the Vice President does not have the power to decide these things for the senate.    That is why the rule always has been that where there is a motion or point of order based upon a argument about what the constitution requires the senate to do or prohibits if from doing  the Vice President puts the question to the senate in the form of a (debatable) motion.

                                What the nuclear option says is not only that the rules of the senate are unconstitutional as applied to judicial confirmations but that in order to establish this without debate or affirmative vote in the senate, the Vice President should just ignore precedent and himself rule on this constitutional question whereupon a majority, without needing to debate or vote on the question would just  uphold the ruling by voting to  table any objection. I don't see any "principled reason" how one man from the executive branch can simply anounce that the rules as adopted by 2/3 of the senate violate the constitution.  There is a good strong argument that they do not and the precedents of the senate require that the senate itself make this decision after full debate.

                                by Fred in Vermont on Sat May 14, 2005 at 09:30:20 PM PDT

                                •  And, moreover, . . .

                                  You fail to mention that Nelson Rockefeller apologized to the Senate as a body for making a similar ruling in 1975, acknowledging that it was an affront to the separation of powers.  I'm certain that if Frist were more certain of his support he would arrange to exercise his 'nuclear option' at a time when Senator Stevens is in the chair.

                                   

                                  by Clem Yeobright on Sat May 14, 2005 at 10:32:29 PM PDT

                                  •  Very good -- how can we find a cite?

                                    You fail to mention that Nelson Rockefeller apologized to the Senate as a body for making a similar ruling in 1975, acknowledging that it was an affront to the separation of powers.

                                    Nice.  That is a point that even Cargo X does not yet seem to have found. (Do you have any idea how to go about searching for a citation to this?) 

                                    There needs to be a lot more focus on the violation of the rules by the Vice President that is the radioactive core of the nuclear option.  The Republicans, lead of course by President Bush, seem to hope to be in a position to run against the Senate Democrats for the rest of this session on the grounds that their responses to the nuking of the Senate violate the spirit of the rules.  But it will be hard for the president to put distance between himself and his Vice President.  We need to keep reminding people that it is not Leader Frist who who wants to nuke the senate but rather President Bush who intends to give his Vice President the order to push the button.

                                    When the response by the Democrats severely limits the Republicans' ability to get anything through the Senate, President Bush should not be heard to complain: he was the one who made the decision that  his ability pack the courts with right wing judges is his main priority and should be advanced at the expense of everything else he wants the Republicans to accomplish in his second term.

                                    by Fred in Vermont on Sun May 15, 2005 at 04:32:58 AM PDT

                                    •  Here's one.

                                      http://www.hillnews.com/thehill/export/TheHill/Comment/OpEd/020805_constitution.html

                                      But I think it becomes apparent that Rockefeller is apologizing not for the ruling he made, but rather for breaking the rules regarding recognition of Senators seeking time on the floor:

                                      Sen. James Allen (D) of Alabama found a back-door way to launch a filibuster. Allen and his allies blocked all Senate legislative activity until Feb. 28, when Mondale's forces agreed to abandon the nuclear option and use normal procedures in their effort to change the Senate cloture rule. On March 3, Majority Leader Mike Mansfield (D-Mont.) stage-managed a vote to undo the precedent for the nuclear option that had been established Feb. 20.

                                      In the midst of Allen's filibuster, a second attempt was made to shut off debate by a ruling of the chair. Vice President Nelson Rockefeller was presiding over the Senate on Feb. 26 while Allen was making a series of dilatory motions to tie up the proceedings. Eventually, Rockefeller ignored Allen's manic cries for recognition and forced a vote. The Senate erupted in bipartisan rage at a vice president who would dare to insult a senator in such fashion.

                                      On April 26, Rockefeller addressed the Senate to apologize for his actions.

                                      It is true, however, that Rockefeller (and the rest of the Senate) regretted the broad ruling he had earlier made, and that they took specific steps to vitiate that ruling before proceeding with the compromise that had been worked out. In addition, Rockefeller admitted that he was acting against the advice of the Parliamentarian (as Cheney will do in the nuclear option).

                                      The cite here is to the Riddick interview, where the discussion of the events of 1975 begins around page 210. By page 214, Riddick gets to Rockefeller's ruling:

                                      So Mansfield made a point of order against this motion. Parliamentary inquiries pursued and responses favorable to get an immediate vote, if a point of order were made would the vote come immediately? In response to this question, Vice President Rockefeller stated that the Chair wished to clarify the answer to a previous parliamentary inquiry by the senator from New York.
                                      

                                      The point of order raised by the Senator from Montana challenges the propriety of the motion offered by the Senator from Kansas. The Chair has stated that if the point of order raised by the Senator from Montana is tabled, the Chair would be compelled to interpret that action as an expression by the Senate of its judgment that the motion offered by the Senator from Kansas to end debate is a proper motion. Therefore, since the motion offered by the Senator from Kansas to end debate provides that it shall be immediately put to the Senate for a yea-and-nay vote the Chair would be compelled to abide by such requirement, the Senate having determined the requirement to be a valid one. (Congressional Record, 94th Congress, lst session, February 20, 1975, p. 3841).

                                      The motion to table the Mansfield point of order was agreed to by 51 yeas to 42 nays. Then a division of the question was demanded on this motion that Senator Pearson had made, and the Chair ruled that it was debatable. The Senate adjourned and the motion to take up again died. The motion to consider was renewed and the senator from Montana, Mr. Mansfield, the majority leader, again made a point of order against that motion, but it too was tabled. The leadership was not in accord with this procedure. So, making a long story short, they vitiated all of this proceeding. Apparently the leadership had talked it all over and figured out that that was a bad precedent to establish in the Senate, so they in effect vitiated all of the rulings of the Chair and the tabling action and the procedure to get immediately to the issue, but with the tacit understanding, I guess, that they were going to invoke cloture and do it the proper way. By indirect action they voted to reconsider the vote by which the Mansfield point of order had been tabled, and then the point of order was agreed to by a majority vote, this understanding having been crystalized, should I say, so that they knew what they were going to do....

                                      Ritchie: Was Rockefeller's action in effect a set-up with Pearson? Did Pearson tell him in advance his strategy?

                                      Riddick: Well, I would assume that that was the agreement between the liberals and Rockefeller. Who was advising him, I don't know. I'm informed that he wrote a note to the present parliamentarian that he wanted it understood with him that it was a decision on his own as opposed to the advice of the parliamentarian. Certainly it was contrary to the practices and precedents of the Senate, and I think that that is why the leadership, under Mr. Mansfield as majority leader, wanted to vitiate in effect all of the statements made by the vice president and come back and do it under the rules, practices, and precedents of the Senate as we say according to Hoyle.

                                      The balance of the interview adds some insight to the questions Categorically Imperative has raised, though not in the "knock-down" fashion we're searching for, and not necessarily in my favor:

                                      Ritchie: If Rockefeller's ruling had stood, what effect would that have had on the Senate?

                                      Riddick: If that had been accepted without question and the Senate had accepted that procedure, it would certainly have left the doors open for any future Congress to follow any kind of a motion they wanted, as long as it was a rules change or what have you, under the so-called constitutional right to do anything they wanted by a majority vote -- which is a dangerous thing under the established Senate procedures. Now if they want to go the way the House proceeds of establishing a procedure that you can move the previous question by majority vote you can always get to a vote without any debate any time you want to. But the Senate has always operated under the so-called concept of unlimited debate; but the Senate is restricting this more and more by rules and special laws (with provisions for procedure that say that the Senate under its constitutional mandate to make its rules as it sees fit, shall hereby establish a procedure for the Senate that subsequent legislation pursuant to this law that we are passing may be debated for only a certain length of time, and that motions to discharge committees are highly privileged and debatable for only a specified length of time). All of these laws, and we've got a great number of them now, are gradually allowing the case history to encroach upon the established procedure of the Senate of unlimited debate, and permits more and more issues and questions to be resolved in the Senate under an absolute restricted debate, like under the so-called Congressional Budget Act, involving the impoundment resolutions, the deferral resolutions, and the waving resolutions (which waves [sic] provisions of the so-called Budget Act). All are under restricted debate for so many hours; it specifies that in each case how long it can be debated and whether a motion can be repeated, and so-on and so-forth. All of these encroach on that so-called established procedure of unlimited debate of the Senate, which the Senate has lived by for nearly two hundred years.
                                      

                                      by Kagro X on Sun May 15, 2005 at 06:47:05 AM PDT

                                      •  Interesting variation on Nuclear Option

                                        In addition, Rockefeller admitted that he was acting against the advice of the Parliamentarian (as Cheney will do in the nuclear option).

                                        Well yes but there is a big difference between what Rockefeller did and the way I have seen the nuclear option described. The motion in 1975 was this

                                        Mr. President, I move that the Senate proceed to the consideration of Calendar item No. 1, Senate Resolution 4, amending Rule XXII of the Standing Rules of the Senate with respect to limitation of debate; and that under article 1, section 5 of the Constitution I move that debate upon the pending motion to proceed to the consideration of Senate Resolution 4 be brought to a close 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, a quorum being present, the Chair shall immediately thereafter put to the Senate, without further debate, the question on the adoption of the pending motion to proceed to the consideration of Senate Resolution 4.

                                        So the motion was that the Chair, based on a certain reading of the Constitution, should just order the clerk to start to call the role on the question being debated.  But the idea was not that the Chair should just do this on his own but that he would be given cover by an elaborate stage-managed production involving point of order objection to the motion followed immediately by non-debatable motion to table.  And then here is the joker: before the vote to table there is a scripted parliamentary inquiry and Rockefeller on queue and against the advice of his parliamentarian would say

                                        . . .  if the point of order raised by the Senator from Montana is tabled, the Chair would be compelled to interpret that action as an expression by the Senate of its judgment that the motion offered by the Senator from Kansas to end debate is a proper motion. Therefore, since the motion offered by the Senator from Kansas to end debate provides that it shall be immediately put to the Senate for a yea-and-nay vote the Chair would be compelled to abide by such requirement, the Senate having determined the requirement to be a valid one. (Congressional Record, 94th Congress, lst session, February 20, 1975, p. 3841).

                                        The modern nuclear option is significantly different.  As in 1975 a motion will be made that the constitution requires an immediate vote but then the Vice President decides on his own, contrary to the advice of his parliamentarian, that he has power to simply grant this without putting it to the senate as required by precedent. He  starts to say "the clerk will call the role" and then when the opposition objects the objection is tabled so the ruling stands and the vote proceeds.

                                        But consider what different sorts of precedent these gambits set.  The 1975 gambit, if it had not been quickly undone once a compromise was reached, would have set the precedent that anytime the Senate votes to table a point of order against a motion to advance to a vote by a majority that means it approves the motion and the Chair should have the role called.

                                        But the (totally valid) objection that the Democrats will raise to the nuclear option will be that the Chair does not have the power to just grant such a motion based on his view of the Constitution but that all precedent requires that it be put as a debatable question to the Senate.  So then when when the Republicans table this objection by a majority vote why can not the Vice President Cheney (and all future Vice Presidents) then claim, as Rockefeller did 1975, that by voting to table the objection that he does not have that power the Senate has affirmed that the Vice President can order the Senate to do whatever he thinks the constitution requires (provided he can get the support of a majority of those voting). It sounds very scary and it might scare off a few of the Republicans who are still on the fence on this.

                                        The one thing I don't understand is why Frist does not just do his trick just the way Rockefeller did it in '75. That would seem much cleaner.  He could accomplish the same result but  would not have to set a precedent that would arguably give the Vice President sweeping new 'constitutional' powers as a one man Supreme Court of the Senate.  Perhaps the price Cheney demanded for his role in this is that it be done this way that would maximize his power.

                                        BTW Cheney has said (for what it is worth) that he will not run for president in '08, but has he ever even said he would be unavailable to run as vice president again in '08?

                                        by Fred in Vermont on Sun May 15, 2005 at 06:47:59 PM PDT

                                        •  It wasn't my intention...

                                          to excuse Cheney by citing Rockefeller's example. Even thought the maneuver was significantly different, I just thought it was worth noting because Rockefeller realized the import of his mistake and stepped back from it, whereas Cheney will fairly revel in his.

                                          by Kagro X on Sun May 15, 2005 at 07:26:58 PM PDT

                                          •  Cheney's power is unnecessarly inflated

                                            Rockefeller realized the import of his mistake and stepped back from it, whereas Cheney will fairly revel in his.

                                            Yes and Rockefeller really had a smaller role in the gambit than Cheney does in this which seems designed to increase his power in a way the '75 gambit would not have even if it had held.   The vote is so close that if in the end Frist can't count on enough votes it may prove to be the heavy handed increase of the  Vice President's power that causes it to fail.

                                            by Fred in Vermont on Sun May 15, 2005 at 08:24:30 PM PDT

                      •  Where?

                        Can you show me the exact place in the Constitution where it says, "Congress shall only use the 2/3's majority for the purposes listed in this Constitution?"

                        by Eternal Hope on Sat May 14, 2005 at 05:55:30 PM PDT

                        •  And WHEN?

                          Can you show me the piece of legislation that was not deemed 'passed' by the House or the Senate when it had received a majority vote?

                          What's your point?

                          by Clem Yeobright on Sat May 14, 2005 at 06:13:22 PM PDT

                      •  Yeah, and I go the other way...

                        I think the Constitution grants the Senate the right to set its own rules, and it has done so. And one of them is Rule V, which says the rules continue unless changed in accordance with the rules.

                        And they do continue, for lack of action, which substitutes for the consent of 2/3 of the body.

                        by Kagro X on Sat May 14, 2005 at 06:06:43 PM PDT

                        •  Rule V

                          If the Constitution requires at least the beginning-of-session open window, then the congruence of Rules V and XXII is unconstitutional (because Rule V, on its face, would leave the 2/3 rule in place for filibusters on motions to amend the rules).  But I take it, from what you've written, that you don't buy even the open window theory.  So I suppose we just disagree...I certainly don't think my interpretation is a knock-down winner; the problem is that there is no knock-down winner.

                          by Categorically Imperative on Sat May 14, 2005 at 06:24:46 PM PDT

                          •  Yes.

                            That's why I don't buy the open window theory.

                            And while there may be no knock-down winner, I think you can get a standing 8 count with the C-SPAN2 audience by taking the Senate floor with a rules manual in your hand, and saying, "The Constitution gives the Senate the right to make its own rules. And here they are. This one here says, to change these rules, you need a 2/3 vote. And by the way, here's a calendar. Bill Frist says it's January. I say it's May."

                            by Kagro X on Sat May 14, 2005 at 06:40:18 PM PDT

                            •  OK

                              But let me ask this: if the first Senate had adopted rules requiring 100% agreement to change any of the rules in the future, a future Senate with 90% in favor of a rule change would have its hands tied, but such a procedure would be consonant with the Constitution's statement that the Senate may make its own rules?  

                              Further, doesn't jettisoning the open window theory totally undermine the defensibility of what Byrd did in 1979?  On your argument (with no window at all), what Byrd did is no different than what Frist wants to do now (because timing is irrelevant to you).

                              by Categorically Imperative on Sat May 14, 2005 at 06:52:36 PM PDT

                              •  I have to say

                                you have not convinced me at all but damn you are smart as a whip.

                                Has Boies snapped you up already?

                                by Armando on Sat May 14, 2005 at 07:47:37 PM PDT

                                •  LOL -- thanks

                                  As you know, the deconstruction of minute and largely irrelevant constitutional provisions is (if I may be so presumptuous as to say so) my specialty.

                                  As for Boies, he offered to snap me up, but I'll actually be working for Dechert (in Philly) next year.  This decision was reached largely due to concerns of balancing my love for the law with my love of the rest of life, and viewing the amount of work required by the Boies outfit.  

                                  by Categorically Imperative on Sat May 14, 2005 at 08:13:22 PM PDT

                                  •  If I may break in here....?

                                    So you say that the constitution trumps the Senate's right to make a non-sunsetting rule that would say it would take more than a majority to change the rules?

                                    by wegerje on Sat May 14, 2005 at 08:27:51 PM PDT

                                    •  Um, yes

                                      I take it your snarking on my professed ability to interpret the Constitution.  Tell me, what is your argument that I am wrong?

                                      by Categorically Imperative on Sat May 14, 2005 at 08:36:47 PM PDT

                                      •  No snark intended

                                        I just wanted to be sure I understood your position.

                                        Separation of powers. The only body that could adjudicate an interpretation of the constitution would be the Supreme Court, but then they would be stepping on the Senate's toes. So in this case the Senate would have to interpret the constitution for itself, and in that case they could simply say that yes they can bind themselves as long as there is enough doubt in exactly what the constitution says.

                                        But, hey, all I know is what I've read right here in this thread.

                                        by wegerje on Sat May 14, 2005 at 10:39:56 PM PDT

                              •  Answer.

                                The future Senates would have to do all their rulemaking via precedent. You know, activism.

                                Does jettisoning the open window theory undermine what Byrd did in 1979? I don't know. What'd he do?

                                I can tell you what he didn't do, and that's trigger the nuclear option. The Senate agreed to his proposed rules change under regular order.

                                The best we can say for Frist is that what he threatens is little different (if at all) from what Byrd threatened. But Frist will be the first to test it.

                                That Frist is less convincing than Byrd ought not to be imbued with constitutional import.

                                by Kagro X on Sat May 14, 2005 at 08:03:46 PM PDT

                                •  Re: Byrd

                                  Your argument makes it impossible to defend Byrd's filibuster-breaking argument on the merits.  How much does this advantage Frist?  Perhaps not much.  But if there's no window, then Frist can at least argue that Byrd raised the spectre of the nuclear option in 1979.

                                  As for the future Senate doing its rulemaking by precedent, I'm not sure that would actually jibe with the Constitution.  The Senate rules would still be contrary to the will of 90% of the Senate, which to me puts the lie to the idea that the Senate is making its own rules.  Basically, I just don't buy the continuing-body-for-rulemaking-purposes argument.  If the Senate proceeds that way by custom, that's fine, but when an objection is raised then a simple majority has the right to change the rules, IMO.

                                  by Categorically Imperative on Sat May 14, 2005 at 08:35:44 PM PDT

                            •  That's a great soundbyte:

                              "Bill Frist says it's January. I say it's May."
                              

                              by bnanaman on Sat May 14, 2005 at 07:01:09 PM PDT

              •  I think he loses his right.

                I may be alone, but I don't concede Frist the right to reserve his objection without an unanimous consent agreement guaranteeing it.

                The way the Senate manifests its unanimous consent to the continuance of the rules is by proceeding with regular business under them. Frist's objection either had to be acted on before any business came before the body -- and after all, he controls that -- or unanimous consent must be given to permit him to pretend that no such business has proceeded.

                As to the second argument, I have always granted -- but only for the sake of argument -- that nominations do not require a 2/3 majority. But I have almost always accompanied that with my objection that the only thing the omission of the 2/3 requirement tells us is that the requirement is other than 2/3, and not whether it's more or less.

                The convention is that nominations require only a simple majority, because that is the default rule of general parliamentary procedure. But the default rule of general parliamentary procedure for a rules change is... what?

                by Kagro X on Sat May 14, 2005 at 05:24:03 PM PDT

                •  It's what the Senate says it is

                  To harmonize Article 1, Section 5 with the Advice and consent Clause, you must assume the Senate has a free hand BECAUSE the Framers saw the need to impose a 2/3 requirement for Treaties and chose NOT to impose ANY requirement for nominations.

                  The interpretation that is forwarded on the difference between treaties and nominations is ass backward.

                  The silence of the Constitution on nominations coupled with the unfettered power to set its own rules in Article 1 makes the proper interpretation, indeed the compelled intepretation be the Senate has a free hand in determining how it gives advice and consent on nominations.

                  by Armando on Sat May 14, 2005 at 05:29:19 PM PDT

                  •  What?

                    In terms of what the Founders meant, at least, I think the historical record is pretty clear that they envisioned "consent" as a simple majority vote in favor of the nominee.  Federalist 76 is pretty explicit on this point.  

                    You might nonetheless persuade me that if a simple majority established a rule stating that nominees would be decided by a coin flip, that could fly, but the underlying point of my argument is that the Constitution (at least implicitly) requires that the Senate's rules are able to be made by a simple majority at all times.

                    by Categorically Imperative on Sat May 14, 2005 at 05:50:08 PM PDT

                    •  Except when the majority

                      agrees to make a different rule that binds them.

                      As for Federalist 76 - give me that explicit language if you please.

                      by Armando on Sat May 14, 2005 at 05:53:05 PM PDT

                      •  Federalist 76

                        Available here.  Here's the context of this quotation: Hamilton is addressing the objection that the Senate's advice and consent is useless because they will be influenced by the President.

                        Though it might therefore be allowable to suppose that the Executive might occasionally influence some individuals in the Senate, yet the supposition, that he could in general purchase the integrity of the whole body, would be forced and improbable. A man disposed to view human nature as it is, without either flattering its virtues or exaggerating its vices, will see sufficient ground of confidence in the probity of the Senate, to rest satisfied, not only that it will be impracticable to the Executive to corrupt or seduce a majority of its members, but that the necessity of its co-operation, in the business of appointments, will be a considerable and salutary restraint upon the conduct of that magistrate.

                        Sure, it requires connecting a few dots, but the obvious implication (Federalist 76 is about the advice and consent power) is that the Senate will manifest its "consent" via a simple majority yes vote.  Otherwise, Hamilton's response to the objection is a non sequitur.

                        by Categorically Imperative on Sat May 14, 2005 at 06:09:51 PM PDT

                        •  Oy

                          That throwaway line is your support for the proposition? Come now. Hamilton was clearly speculating on what rules the Senate MIGHT impose on its Advice and Consent.

                          I was wondering why I had not heard that argument from the GOP before.

                          Not convincing.

                          Indeed, it seems to me you debunk this argument in your diary with your proper invocation of the "that which is not included is excluded" rule.

                          by Armando on Sat May 14, 2005 at 06:18:27 PM PDT

                          •  Eh

                            It seems straightforward to me, considering that Hamilton's argument is essentially that the President won't be able to influence the advice and consent process beacuse he won't be able to influence a majority of the Senators.  In any case, I didn't need the Federalist for this; the final part of the "Advice and Consent" clause does it for me, since

                            the Congress may by Law vest the appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments

                            Passing a bill out of Congress requires a simple majority, and it would be self-evidently absurd for the Constitution to require something other than a simple majority for advice and consent, while allowing an end-run through this final clause.  

                            And, quite frankly, if Frist wants these inferior judges appointed, this is how he should do it.  By law, he can vest Bush with the sole authority to appoint them (presuming, I guess, that the House agrees, which it would).  This clause clearly applies to any non-Supreme Court judges, as the Constitution set up only the Supreme Court and therefore circuit judges must be within the "inferior officers" class mentioned here.

                            by Categorically Imperative on Sat May 14, 2005 at 06:34:43 PM PDT

                            •  May vest by Law

                              You may have forgotten that the passingof Laws is subject to the rules of the respective Houses of Congress.

                              I think we may be talking at cross-purposes.

                              Let me ask you straight, are you saying you believe the filibuster of judges is unconstitutional?

                              by Armando on Sat May 14, 2005 at 07:06:58 PM PDT

                              •  No

                                I'm saying that the rule requiring 2/3 agreement to change Senate rules is possibly unconstitutional.  The filibuster of judges?  That's constitutionally fine.

                                by Categorically Imperative on Sat May 14, 2005 at 07:10:45 PM PDT

                                •  so then

                                  would you also say that a filibuster to any proposed rule change would be fine constitutionally?

                                  by bnanaman on Sat May 14, 2005 at 07:16:33 PM PDT

                                  •  The filibuster itself?

                                    That's fine, too, I suppose.  But I think it would be pointless, since any cloture requirement of more than 51 is unconstitutional in my view.  My view is simple: Senate rules must be open to change by a simple majority vote.

                                    by Categorically Imperative on Sat May 14, 2005 at 07:32:25 PM PDT

                                    •  so then

                                      the filibuster for judges would also be pointless?

                                      by bnanaman on Sat May 14, 2005 at 07:40:43 PM PDT

                                    •  if you are going to come to that conclusion

                                      by way of comparing the language of the advice and consent clause and the senate rules clauses, than you can't have it both ways.

                                      by bnanaman on Sat May 14, 2005 at 07:42:35 PM PDT

                                      •  See my response to you below

                                        The difference is that the advice and consent clause does not require that consent be given.  All I'm reading it to say is that consent requires a simple majority vote, nothing more.  Non-consent can be manifested through the filibuster, among other tactics.  

                                        by Categorically Imperative on Sat May 14, 2005 at 07:50:00 PM PDT

                          •  Blech

                            Never mind the last paragraph; he'd still get filibustered.

                            by Categorically Imperative on Sat May 14, 2005 at 06:37:14 PM PDT

                            •  the one before it too

                              since bills in congress are also subject to filibuster.

                              Actually, that kind of kills the whole argument.

                              by bnanaman on Sat May 14, 2005 at 06:56:46 PM PDT

                              •  No

                                The argument is about whether "consent" to a judge is supposed to be by majority vote.  Armando thinks that the Senate can choose any method of consent it wants, and all the Constitution tells us is that "consent" doesn't require a 2/3 vote.  I think that the fact that the Constitution allows Congress to give the President or the courts sole appointment authority by law is significant, since it indicates that Senate consent is to be manifested by majority vote.  Why?  Because it only takes a majority to pass a law, so if the Constitution envisioned something other than a majority vote for consent, it would be specious to allow such an obvious end run.

                                by Categorically Imperative on Sat May 14, 2005 at 07:01:07 PM PDT

                                •  Wait

                                  Are you saying they could pass a law that would allow the naming of specific judges for specific seats? That's interesting.

                                  But really, it only argues for a majority as a MINIMUM, which, for the sake of this argument I'll concede.

                                  Certainly it does nothing to the filibuster.

                                  by Armando on Sat May 14, 2005 at 07:09:46 PM PDT

                                  •  Hadn't thought of that one

                                    but it is, as you say, interesting.  

                                    This has gone rather far afield.  My ultimate point is that Art. I, §5, cl. 2 implies (at least in the first instance) that Senate rules will be set by a simple majority (or more, but simple majority is all that's needed).  One way I tried to do this was arguing the parallel between the rules clause and the advice and consent clause, to point out that constitutional silence (when the same clause is NOT silent elsewhere) can be significant.  If you agree that the Constitution sets the minimum for advice and consent at a simple majority, then that point is made.

                                    I have no issue with judicial filibusters, constitutional or otherwise.  The constitutional problem I see with our side of the argument is that (to me) the Constitution requires (yes, by implication) that a simple majority of the Senate be allowed to set its rules.  I don't think it is a sufficient answer to that question to say that the Senate has set its rules, and they require 2/3 to change the rules.  I think such a rule is unconstitutional.  I think the constitutional implication precludes the Senate from requiring supermajorities to change the rules.  

                                    At the very least, I think the "open window" theory -- every time there's a new Senate, a simple majority can change the rules -- is constitutionally required.  If you buy the open window theory, then the question is whether Frist crapped the bed by not fighting Rule XXII immediately.  My answer is no, since, in point of fact, it doesn't matter (Rule V would've required Frist to either get a 2/3 vote then or have Rule XXII declared unconstitutional by the chair, which is where we are now anyway).

                                    by Categorically Imperative on Sat May 14, 2005 at 07:21:34 PM PDT

                                    •  I think then

                                      If we subscribe to your theory there is still a filibuster problem, only now with the rule change. Going back to your comparison, where in the first case the advice and consent clause that you are attempting to draw a parallel with implies up or down votes. If we accept that the same must therefore also be true of the latter case (rule changes), than a further parallel must be drawn between the constitutionality of using the filibuster tactic in each case. If you concede (which you say that you do) that filibusters are not unconstitutional in the case of judges, then ought they not also be perfectly within the scope of the constitution in the latter?

                                      The reason this presents a problem is that for the nuclear option to work, the presiding officer would also have to rule that debate on the rule change was out of order. So it would still be illegal, just for a different reason.

                                      by bnanaman on Sat May 14, 2005 at 07:38:13 PM PDT

                                      •  Difference w/ the two filibusters

                                        In the "advice and consent" case, I do not think that an up or down vote is required per se.  Such a vote is required to manifest consent, but non-consent can be manifested in several ways, the filibuster being one of them.  The analogy to the rules clause rests only on the fact that consent requires a simple majority vote.

                                        In the case of the rules themselves, I think the filibuster is constitutionally problematic, because the clear textual implication is that a simple majority sets the rules.  Requiring 2/3 to break a rules filibuster is thus contrary to the Constitution as I read it.

                                        I agree with you that my theory leads us to the same basic place on the nuclear option, but the different reasoning is significant.  I think a Fristian argument about the Constitution requiring an up or down vote would be specious; an argument about allowing a simple majority to change the rules would make sense to me.

                                        by Categorically Imperative on Sat May 14, 2005 at 07:44:29 PM PDT

                                        •  The problem with your reading

                                          is that the language of each of the two clauses is the same. In both cases the Constitution lists a specific case where a 2/3 vote is required, and then is silent on the necessary votes for any of its other provisions. The language is no clearer when dealing with rule changes than it is with advice and consent. Therefore if you concede the constitutionality of the filibuster in one case, you can't really deny it in the other.

                                          Also, try this argument on for size: voting on cloture for a filibuster is not the same as voting on a bill, or in this case a motion to change the rules. It is merely a vote to end debate. Not that it would happen often, but a senator could conceivably vote for cloture, but then vote against the bill being passed. Therefore a filibuster with a normal cloture rule would not violate any Constitutional provision requiring a simple majority vote on any rule changes, since the vote for cloture and the vote for the rule change are two distinct entities.

                                          by bnanaman on Sat May 14, 2005 at 07:56:19 PM PDT

                                          •  Ah.

                                            Therefore a filibuster with a normal cloture rule would not violate any Constitutional provision requiring a simple majority vote on any rule changes, since the vote for cloture and the vote for the rule change are two distinct entities.

                                            That must explain the odd construction of the rules -- that there's no formal requirement anywhere for a 2/3 vote for a rules change, just a 2/3 requirement for breaking a filibuster on a rules change.

                                            That sews it up nicely.

                                            by Kagro X on Sat May 14, 2005 at 08:06:38 PM PDT

                                          •  Good point (2d graf)

                                            I'd wondered about it and am not sure what to make of it.  Surely, the vote for cloture is different than a vote on the underlying question (the Rule XXII cloture question is something like "is it the sense of the Senate that the debate should end?").  And I suspect that the reason the rules are worded in the way they are is to avoid the constitutional trap I've been discussing (indeed, it may well be that a simple majority is sufficient to pass a new rule or amend an old one).  The question is whether the technical distinction here successfully answers the constitutional problem.

                                            I'm not sure it does.  Here's my view of the difference between the 2 clauses we're discussing.  "Advice and consent" provides a description of what it takes for a nominee to win Senate approval.  What does it take?  A simple majority vote in favor.  

                                            The rules clause is not quite the same; it doesn't define something in the way "advice and consent" does, but it empowers the Senate to make its own rules (by simple majority vote).  Does a filibuster in the latter case violate the Constitution in a way it would not in the former case?  I think so, and here's why:

                                            The judicial filibuster prevents the Senate from providing its consent, but the Constitution does not require or even imply that consent needs to be considered on the merits, let alone given.  All the Constitution does is define the situation in which a nominee will be deemed ready to become an appointee.  The rules filibuster, on the other hand, prevents something the Constitution requires: that the Senate be able to make its rules via majority vote.  Phrasing it as a cloture rule rather than an enactment rule is clever, but it doesn't avoid the constitutional problem.  

                                            Is this splitting hairs?  Surely, but we're knee-deep in that territory anyway.  What is your assessment?  I'm very curious because your second paragraph may well be a knock-down argument against what I've been asserting.

                                            by Categorically Imperative on Sat May 14, 2005 at 08:26:07 PM PDT

                                            •  As long as we are splitting hairs

                                              the exact wording of the Constitution on rule changes is as follows:

                                              Each House may determine the Rules of its Proceedings

                                              I don't think the actual Constitutional language has the air of necessity that you ascribe to it. If the Senate may determine its rules by simple majority, perhaps it also may do so in other ways. Mind you I'll be the first to admit that that is hardly the most convincing argument I've ever made.

                                              A better one perhaps is that filibuster's do not technically preclude votes. Regardless of the spirit in which it is carried out, technically speaking the filibuster is merely an indefinate extension of debate. Presumably debate will eventually end, allowing for a vote. If a vote never happens, it is due to other factors (recess, etc.). Since the filibuster can not in and of itself prevent a vote it would be difficult to argue its unconstitutionality based on your argument.

                                              by bnanaman on Sat May 14, 2005 at 08:46:28 PM PDT

                                              •  Hm

                                                As you predict, I'm not overly convinced by the "may" language.  At least if we assume 51 Senators want to make a rule, I think that suffices to make the constitutional "may" into something significant.  I guess if the Senate just didn't care about having rules, or wanted to delegate the rulemaking elsewhere, it would be a different story.  But that isn't the case.

                                                As for the second point, I don't know.  The filibuster technically doesn't prevent a vote, but for all practical purposes a 2/3 rule change filibuster rule prevents a simple majority of the Senate from setting the rules.  My argument has to be one based on the effect of the rule in practice, and not its technical interpretation.  Which isn't so great, because I'm being hyper-technical about the Constitution.  It's not unheard of, though, to look past the narrow, technical reading of a rule or law in evaluating its constitutionality, so I'm not on totally shaky ground.  So: the problem is that the 2/3 rule for cloture in rule change debates means in practice that it takes 2/3 of the Senate to change a rule, making the practice unconstitutional.  And I do think this is distinguishable from the "advice and consent" clause.

                                                by Categorically Imperative on Sat May 14, 2005 at 09:12:51 PM PDT

                                                •  so in the end

                                                  it comes down to the letter of the law vs. the spirit of the law. The spirit should probably win out, but we both know it rarely ever does. Anyway, it is also far from unheard of to look past the narrow, technical reading of the constitution itself, so I don't know if that is a can of worms you want to open here.

                                                  by bnanaman on Sat May 14, 2005 at 09:24:10 PM PDT

                                                •  also

                                                  it is hard to allow the technical distinction between a cloture vote and an actual vote on the rule change, but then deny the distinction that the filibuster doesn't actually preclude the vote.

                                                  by bnanaman on Sat May 14, 2005 at 09:28:13 PM PDT