Filibuster reform: what happened?

Factual Questions
1

My understanding - from The Rachel Maddow Show - was that Wednesday, January 5th was the one time during the next two (?) years that the House of Representatives could change operational rules, and that the Democratic party was gung ho on changing the filibuster rule so that actual filibustering had to be done and the filibustering could be ended with a simple majority vote.

So . . . what happened?

I haven’t heard anything on the news programs or read anything in the papers or online that the measure passed or failed. I don’t get it.

2

The House has timed debates; there are no filibusters. Do you mean the Senate? The Democrats have only the slimmest of majorities in the Senate and if they wanted to change Senate rules they would have had a much better chance at the beginning of the last term.

3

The filibuster doesn’t affect the House, it affect the Senate. The Democrats are still gung-ho about changing the filibuster, but they don’t have that one day window. The bill was introduced this week, but I don’t believe it has been voted on yet.

4

Nitpickery: this won’t be a bill since it’s not a matter of law. Rules changes are adopted by Senate resolution.

5

I thought they still had to do it on the first day, but through procedural maneuvering they extended the " day" for a few weeks until they meet again.

6

You should be aware that the contention that the Senate does not allow filibusters on rule changes on the first day of session is a theory that has never before been put to the test. There is no specific text in the Constitution, the Senate rules, or anywhere else that even implies that this is possible.

But there are currently negotiations going on to see whether there are some reforms to the filibuster that, while more modest, would gain bipartisan support. It will be a few weeks until we know the outcome.

7

Senate! Senate! I had the House of Representatives on my brain because of the shooting this morning.

So, we’re in a Wait and See mode.

I hate waiting.

8

But ya like seeing, I bet.

9

How were filibuster rules changed in the past then?

10

We had a sane Republican party then.

11

That’s utterly misleading. There’s nothing in the Constitution or federal law that says anything about fillibusters at all. The fillibuster is simply an arbitrary rule that the senators from the previous congress agreed on – it’s not law, it’s not constitutional, it’s just an arbitrary set of rules they agreed on. The senators from the next congress never agreed to the previous congress’ rules, so they are logically under no obligation to follow them. Just like previous congress may have (for instance) required senators to vote in alphabetical order but the next congress changed the rule so they have to vote in (for instance) seniority order.

Therefore when a new congress starts, on the first day, the senate has to agree to rules they will follow. Important to realize that on the first day of the senate, there literally are no rules yet, because they have to make them up. Typically, this is a mere formality and the senator agree to abide by the previous congress’s rules. But there’s no reason why this needs to be so. If you want to change the rules, doing so on the first day is obviously the fairest, best time to do it.

** Since the current congress has never agreed to any rule approving a fillibuster, the fillibuster doesn’t exist for this congress until they pass a rule that allows it.** And that is exactly what they are debating now.

12

Then provide citations that the Senate readopted it’s rules in the 111th Congress.

And explain the significance of Rule V, which states that the rules continue from one Congress to another.

Prior changes to Rule XXII, which deals with ending filibusters, were worked out with bipartisan support. There have been many (at least 7) attempts to change Rule XXII on the first day of Congress, and almost all have failed because they were filibustered.

There is no means of ending debate on an issue on the first day of a Senate that is any different than ending debate on any other day of the Senate. What proponents of this “51 vote majority on day one” propose could theoretically succeed, but it would involve breaking current Senate rules that remain in effect.

13

I thought the Senate was ongoing… no sessions like the House.

14

That is exactly what the Senate rules state.

15

It seems silly to make a rule that says that you must accept the rules.

16

It says the rules continue until they are changed in accordance with the rules.

17

Filibuster is merely a Senate rule and can be changed at any time.

What it comes down to is how to close a debate. In the House, a debate can be closed by majority vote. In the Senate, it takes 3/5 of the vote to close a debate. That’s all there is to it.

It was a historical accident. Originally, the Senate had a rule to “move the previous question” (i.e., close debate) but it had never been used. The Senate rewrote their rules without a means to close debate back in 1806.

It was a non-issue for almost 25 years until I believe Henry Clay was attempting to close debate on reauthorizing the Second Bank of America. Clay had a majority, but the opposition simply threatened to debate it to death. Even years after that, the filibuster wasn’t really used because the idea is that the Senate could simply change the rule of closure via majority vote, and thus break a filibuster.

In the early 20th century, the rule to close debate was formalized with 2/3 vote. I believe this happened during the Wilson administration. The filibuster only came into a life of its own during the 1930s when Huey Long used it to stop bills he didn’t like. It didn’t take long for Southern Senators to use the filibuster to stop civil rights legislation.

In the 1970s, the rule was changed from 2/3 (66 out of 100) to 3/5 (60 out of 100), but at the same time, the rule to allow the Senate to change the closure rule went from majority to 2/3rds.

In the 21st century, the Republicans threatened the “nuclear option” to get rid of the filibuster when the Democrats were refusing to allow bringing forth some of President W. Bush’s judicial nominees. The Republicans would change the Senate rule that said you needed 2/3rds majority to change the rule on closure via majority vote. Then, change the rule on closure from 3/5 vote to majority vote. Thus ending the filibuster.

In theory, all it will take to get rid of the filibuster is two separate majority votes on rule changes. (I can’t imagine the Republicans successfully objecting to the very same tactic they once threatened to do). The problem is that all the senators know that maybe today the filibuster rule runs against you, but some day you’ll be grateful that its there.

18

Maybe so, but wouldn’t it come down to a matter of what the presiding officer decides? Then, the losing side would appeal from the decision of the chair, and the matter would be decided on a simple majority vote, no?

So, regardless of what the rule is, the filibuster could be scrapped on a simple majority vote…

19

Sure, but there are two responses to that:

One, that has nothing whatsoever to do with the idea that the first day of the Senate is somehow different.

Two, the fundamental weakness of the rules is that a presiding officer could come up with pretty much any bizarre ruling, and no matter how egregiously it violates the plain text of the rules, if a majority supports the ruling, that is that. Some may call it using the rules to change the rules in a way other rules prohibit. But this 51 vote stratagem has never actually been used.

20

You’re missing the point. The senate rules are not law. They are not spelled out in the constitution. They are as arbitrary as “we all agree to wear hawaiian shirts of friday”. The only reason that matter is that the senators have an agreement to abide by them. The constition (Article 1, Section 5) simply says congress can agree to whatever rules it wants and does not in anyway imply that the rules have to carry over to the next congress. But these rules are mere conventions like Robert’s Rules of Order, deciding things like the order people get to speak in. It’s not a law, just an agreement among the members to make day-to-day operations run smoother.

Since it is not a law, then there is no reason the 112th congress has to follow the rules that the 111th congress (a totally different group of people) decided on. Sure, the 111th congress may have agreed that rules should carry over from one congress to the next, but the members of the 112th never agreed to that, so why should they be bound by it? It’s not a law, just an agreement among the members.

The senate rules are not a law, therefore each congress is free to make up whatever rules it wants on the 1st day, regardless of what the previous congress did.