With all of the “nuclear option” posturing during the first 6 years of the Bush administration, I’m pretty sure that the Republicans are perfectly fine with the ability for the Democrats to change the rules. I strongly expect that if the Republicans get the majority, they will do away with the filibuster all together. Mitch has pretty much said so. They certainly know that they will never get 60 votes in the senate.
doubled: your description of the significance of Senate rules is sorely lacking. They go far beyond Roberts Rules of Order, they prescribe the oaths of office, ethics rules, budget matters, committee rules, employment practices, etc.
But you haven’t answered my question about Rule V. What is it’s significance?
And when did the Senate readopt it’s rules in the 111th Congress?
First of all, even rule V explictly says rules carry over from one senate to the next “unless they [the rules] are changed”.
But I am saying the portion of Rule V you quote has significance only if the following congress allows it to have significance. Hypothetical example: imagine on the last day of an outgoing congress, the senate agreed to a crazy rule like “From now on, no republican can speak unless he’s standing on one foot. And also, this rule can never be changed.”. Are you saying that all future congresses would then have to abide by that rule? And they could never change it, simply because the previous congress said they couldn’t change it?
The outgoing congress cannot tie the hands of the incoming congress in senate rules unless the incoming congress agrees to it.
Anyway, senate.gov quite clearly says the first day activities of a new congress include “the adoption of standing orders for the new congress” – ie, ratification of the rules.
U.S. Senate: 404 Error Page
I’m afraid you do not know the difference between standing rules and standing orders. Orders are not rules, they are motions adopted at the beginning of each session of the Senate.
So, once again, when did the Senate adopt it’s rules in the 111th Congress? Or the 110th, or the 109th, if you prefer.
Once you have the answer to that question, you will have your answer to your question on whether the one foot rule is valid in future Senates.
You still don’t get my point. It doesn’t matter what the previous congress did about senate rules. Yes, each senate usually just accepts the previous senate’s rules without comment; but there is nothing in the constitution or federal law that obligates them to do so. (See Article 1, Section 5 of the constitution, which is the ONLY place in federal law where rules are set). Doesn’t matter what rules the 111th congress had, or whether they explictly voted on them or implictly just allowed them to stand from the 110th. The 112th congress is comprised of different people, and never agreed to the 111th congress’ rules, so they are not bound by them.
I would ask you to answer my hypothetical from above – what if an outgoing congress passed a stupid rule with “This rule can never be changed.” Are you saying that all future congresses are then forced to abide by that? And can never change the rule, just because some previous congress said so?
Of course not. That would be ridiculous.
Hereis an interesting article on the subject.
Long story short, according to the authors, the first day is meaningless since the Senate has a continuous term with only 1/3 up for election at a time, and it doesn’t matter since the Constitution says it only takes a majority vote to change the rules and Senate rules don’t trump the Constitution.
I think there is a good chance to change the filibuster rules.
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The Reps control the House. That means that except for treaties and nominations, the Republicans can veto anything Dem Senators want to do.
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The Reps think that they will take the Senate next year (see how many Dem Senators are up in 2012). Why not take away their obstructive power now.
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They lose the “obstructionist” label from now to the 2012 election. After all, they gave up their filibuster power.
Of course I’m assuming the Republicans are intelligent.
Nope! The exact quote is
There is nothing in the Constitution about a majority determining the rules. The only time a majority is mentioned is in clause 1 about a quorum.
The surpreme court decided in United States vs Ballin (1892) that congress can determine its rules by a simple majority vote.
Of course, it’s less clear whether congress can pass a rule that limits its ability to pass rules (ie, a fillibuster).
Right. The arguement in the article is that at the time it was written, and the way it was written, votes were simple majority unless otherwise specified. The only mention of simple majority is the part about a quorum because at the time there were a wide variety of rules of what constituted a quorum, but half plus one was assumed to be a winning majority in a vote.
The Constitution silence is interpreted as meaning simple majority. To the founding fathers, it would be obvious that laws and rules are governed by a simple majority, and you’d only have to mention times when a super majority was needed.
The only reason why a quorum was mentioned is that quorums varied from political body to body (in Pennsylvania, it was 2/3 of the members. In the British Parliament, it was only 20 or 40 members).
Congress is given the power to determine its own rules, and the courts will stay out of any squabbles among members about the various rules.
I’m not seeing how that case is relevant. It is about the House of Representatives and how its rules relate to a quorum. If there is some part of that decision that relates to the first day of session, the Senate, or supermajorities, could you please point it out?
The Constitution gives the Senate the specific power to define its rules. It has exercised that power by stating from the very earliest days that its rules continue unless they are changed according to the rules.
Your contention that the rules are presumed to expire unless acted upon flies in the face of how the Senate has constituted itself in something like 103 of the 112 Congresses so far. If memory serves, the last time the rules were reconstituted was in the late 1970s. If the rules of the Senate expire if they are not acted upon by a new Congress, we have gone 3 decades without any Senate rules. That is not what the rules say, and it doesn’t make any sense.
In fact, I went and looked something up. The Senate established the policy of its rules continuing from one Congress to the next in what year? 1789. The very first Senate established that rule.
All this argument about the first day has no basis in text. Find me any controlling authority (precedent, rule, law, Constitution) that says anything along the lines of that consideration of rules on the first day is different than on any other day.
It doesn’t exist. Those who propose such a thing are themselves proposing a change in the rules. Those who say it is current practice cannot point to any specific authority controlling the Senate to justify this “no filibusters on the first day” theory. It is all conjecture that is not supported by Constitutional law, by precedent, or by Senate rules.
If the Senate were to adopt that position, that’d be fine – senators can knock themselves out – but it that is not how the Senate operates now, and it has never taken that position in the history of this country.
But that is VERY different then saying the Constitution says a majority is needed for rule changes. If the Senate passes a motion requiring 2/3 vote for rule changes, would it be unconstitutional?
The reform that I heard about would do a couple of things…
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Require debate to actually go on during a fillibuster.
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Allow a fillibuster to take place at the beginning of the process as well as the end of the process after all amendments have been voted on. Presumably the latter wold reduce some of the former.
Understood. The presiding officer could rule that Senate decorum provides that each Senator must wear a monkey on his head while on the Senate floor, and if 51 votes back him up, then that is what the rule says.
And this is as it should be. And since it is this way, nobody is hamstrung with a “Golly, gosh, gee, how do we get around this 60 vote hurdle?” Change the rule.