Remember this?
With a Senate minority now obstructing up-or-down floor votes... the time has certainly come for the Senate majority to seriously consider re-exercising the "nuclear option."
That was from the Center for Individual Freedom back in 2003. At that time it was whining over democratic filibusters of Bush judicial nominees.
In their smug attempt to justify their attitude they began their argument thus:
Enter the U.S. Constitution.
Nice start huh? But wait it gets better.
It has long been a principle of Anglo-American constitutional law that a previous legislature cannot bind a subsequent legislature. Indeed, the maxim dates all the way back to Sir William Blackstone, who cited Cicero in his Commentaries on the Laws of England for the proposition that "Acts of parliament derogatory from the power of subsequent parliaments bind not. ... Because the legislature, being in truth the sovereign power, is always of equal, always of absolute authority: it acknowledges no superior upon earth, which the prior legislature must have been, if its ordinances could bind the present parliament."
Only problem is that's not in the constitution. But ok, let's concede on logical ground that they had a point, not necessarily a whole argument but let's be generous and give them that point.
So they go on, maybe now they will start an actual constitutional argument:
The U.S. Supreme Court, likewise, has held that legislative entrenchment constitutes an unconstitutional exercise of power in a long line of cases dating all the way back to the mid-19th Century. Specifically, the High Court has ruled that "[e]very succeeding Legislature possesses the same jurisdiction and power ... as its predecessors. The latter must have the same power of repeal and modification which the former had of enactment, neither more nor less. All occupy, in this respect, a footing of perfect equality. ... A different result is fraught with evil." Newton v. Commissioners, 100 U.S. 548, 559 (1880). Thus, it is far from surprising that, according to the Supreme Court, "the will of a particular Congress ... does not impose itself upon those that follow in succeeding years." Reichelderfer v. Quinn, 287 U.S. 315, 318 (1932).
This constitutional principle against legislative entrenchment has both theoretical and practical implications for Standing Rule XXII.
Oops, that's not the constitution either is it, it's a supreme court ruling. Unlike the constitution, this is subject to further interpretation and even overturning if it came right down to it.
OK, well maybe now they'll get to it right?
On the theoretical level, the cloture rule is presumptively unconstitutional, as outlined in a Stanford Law Review article authored by Professors Erwin Chemerinsky and Catherine Fisk, of the University of Southern California and Loyola Law Schools, respectively. See Erwin Chemerinsky & Catherine Fisk, The Filibuster, 49 Stan. L. Rev. 181 (1997).
Darn, that's not the constitution either, just some opinions of some right wing law professors. I get it now, in wingnutland citing the constitution means citing people who have opinions about it. Back then it was wingnut scholars, but I guess it could be any right wing loon with an opinion right? How about Glenn Beck or Rush Limbaugh. I mean if you don't have to quote the constitution, why bother with a scholar?
But I digress, so onwards:
According to Professors Chemerinsky and Fisk, "The effect of declaring [legislative entrenchment] unconstitutional is that the current Senate could change Rule XXII by majority vote. In other words, a majority of this Senate could eliminate the filibuster if a majority wished to do so."
This is the so-called "nuclear option."
Actually, I do agree with the CFIF on one point, the cloture rule is a rule not a constitutional construct in it's own. And by their own logic, no particular congress should be held to the same rules as a previous congress. OK, what the heck, I'm with ya on that.
So let's fast forward to 2009 and the Healthcare debate. As I understand it, with a public option we are well short of the 60 vote majority needed to invoke cloture. Estimates I've seen range from 5 to 13 votes at the moment. Back in 2003 it was right wing extremists who were stamping their feet and crying like babies for the nuclear option because they could not get their way on a few judicial appointments. Well, if it was good enough for them then, why don't we just go ahead and give them what they want. Dems seem to be great at capitulating to right wing loons anyway, what's just one more capitulation right? I mean, if it was good enough for some third string judgeships, why not something as important as fixing a healthcare system that has been bankrupting americans for years and could finally provide a quality public option for those who need or want it?
So I'm all over it CFIF, you are right, let's eliminate the 60 vote cloture rule once and for all. Then you can be happy with your little pyrrhic victory, 6 years late, but what the heck, a win's a win right? And we can actually do something great for the country before you and the rest of your right wing lunatics drag us all into oblivion.