[T]here is always a well-known solution to every human problem — neat, plausible, and wrong -- H. L. Mencken
I've been trying to convince people that the filibuster must be fixed through the rules, and that those rules aren't going to be easy to repair, because that's the way it's set up. I've talked about the power that each House of Congress has to set its own rules, and about what the Senate's rules are. Throughout all of this, I've ignored one of the more bizarre and frankly inane alleged routes to changing the rules, a parliamentary trick which could allegedly be perpetrated at the beginning of a session to change the rules with a mere majority. Ignoring the question of whether that would even be a good idea -- I personally think it isn't, but one can argue -- it's a zombie lie which I'd hoped would be content to stay safely in its grave. Regrettably, it hasn't, and, in the interests of not being accused of arguing in ill-faith, this diary attempts to explain why it's self-serving misrepresentation to continue to argue for it.
This procedural gimmick depends on the Senate claiming that it is a non-continuing body, as if that would set aside the Senate rules by abcedarian magic, and then, since the rules no longer existed, adopting a completely new set. The folks who put this particular bit of legalistic bunkum then claim that the vote required to adopt the rules de novo would only be a majority plus one.
Now, don't get me wrong -- despite the chaplain's polite bleating, the Senate is an anarchy, and whatever regulations its members assert to be the True Rules (TM) are, in fact, the True Rules. Were the Senate to change the rules by mass slaughter, no Divine hand would reach down and reduce the surviving Servants of the Upper House to oily smears on the cushions of their seats. Pretending that there's some Constitutional fiction behind which they could hide what would be a pure manifestation of brute power, though, would be a lie.
The same is true if you make some unsupported claim about lack of continuation. The Constitution is quite clear that the both the Senate and the House are continuing bodies. Article I, Section 5, says
Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.
It doesn't say "Congress", but "House". Article I, Section 1, defines the houses and their relationship to the Congress:
All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives
And finally, Article I, Section 4 makes it very clear that the Congress (as a body) extends beyond any given Congressional Session:
The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.
[Emphasis mine.] Notice, not "Each Congress", but, rather "The Congress". There is only one Congress, comprising a House and a Senate, and it continues, even as its members are elected and removed.
That's right -- the Congress is a bicameral continuing body, going back to the original adoption of the Constitution, back in 1792. There's only ever been one -- yet the House quite happily adopts a new set of rules with every bill, and the Senate does not.
This sound suspiciously like pilpul, though -- mining the text for some numinous inherent meaning within it. The truth here, though, is that we choose to abide by this rule no matter what: why is a new appointee to a chair in either house not entitled to reconsider the rules whenever he or she shows up to take the Oath? Isn't that a "new" Congress? What about the case where a seated Senator has his appendix out? Isn't that a new Congress? What about a new oxygen atom bound into a nerve cell in some Representative's brain? Why isn't that a new Congress?
The difference lies not in the Congress, but in the rules. The House assumes that it needs a new rule for each matter on the floor. The Senate does not. It is that simple -- and no amount of feeble verbal trickery will change that.