You clearly do not understand how an ongoing deliberative body works. The standing rules or bylaws or rules of order always carry from on session to the next. They do not start over from scratch simply because a new slate is elected. For you to argue that every new session of Congress should be somehow independent of everything that went on before despite what every authority on parliamentary law (Robert’s and Mason’s being the big two) say is like the CT’s arguing against engineers how burning fuel can’t really melt steel. I can’t make it clearer to you. A deliberative body is a continuation regardless of being a new session.
And you very clearly did NOT read what I said in that it is both parliamentary law AND case law that no rule is non-rescindable as a majority can always change the rule. You could argue that the filibuster makes it effectively non-rescindable but I already demonstrated that is not the case if forced to a point of order and appeal (the nuclear option).
And your example shows a further ignorance of parliamentary law. It is a fundamental right of every member unless under specific restriction (like suspension) to vote on every motion. In fact a member can vote on their own expulsion because until expelled they are still a member.
So I’m still curious why you think that the rules of order and standing rules should be thrown out completely every time a new session starts or how it binds the next session if they can change rules with a simple majority?
Are you aware that the Standing Rules of the Senate have not been adopted by the Senate for more than 12 years?
If the rules “expire” at the beginning of each new Congress, and the Senate’s main body of rules has not been adopted for the last five Congresses, then there’s only two logical explanations: 1) there are currently no rules in the Senate; or 2) the rules do not expire at the end of each Congress.
The only authority on the rules of either house of Congress is the U.S. Constitution, which vests that authority within the houses themselves. Reference to rules used by other bodies are not relevant. Congress can choose to use the same rules as a previous session or not, but that choice is independent of what previous Congresses did.
I’m sorry if I misled you to think that I thought Rules were automatically rescinded at the start of a session. I only claim, by common-sense, that they can be rescinded by majority vote.
And I’m sorry if I misled you to think I want a crash course in parliamentary rules of order. I don’t.
My question and comment are each very simple. You’ve probably offered an opinion on the answer, but if so, I’m afraid it got lost in obfuscatory parliamentary detail.
My question is:
On the opening day of a Senate Session can 51 Senators (or 50 plus their President) enact new Rules?
My comment is: Yes, I think they can. If you claim otherwise, citing references to other scholars would be nice.
The Constitution does not dictate that Senate rules must be re-adopted every Congress. It’s totally vague. Presumably, the several signers of the Constitution who then went on to serve in the Senate were aware of the continuing nature of that body, which is a theory that dates back to the 2nd Congress.
And make no mistake, there are numerous signers of the Constitution who went on to serve in the Senate: Roger Sherman, William Johnson, Richard Bassett, George Read, Abraham Baldwin, William Few, Rufus King, John Langdon, Johnathan Dayton, William Patterson, William Blount, Pierce Butler, and others. These men came up with the Constitution and the Senate rules – how on earth can you say that they subverted their own will by making the Senate rules continuing in nature?
Please answer my question: if the Senate rules have not been adopted for more than a decade, and they do not continue from one Congress to another, how does the Senate currently have rules in place today?
Plus, where do you get this idea that the opening day is somehow special? There’s no constitutional text on special powers that exists for each House of Congress on January 3rd, but totally disappear at midnight, like Cinderella’s carriage.
Yes, the Senate can choose to use the same rules as the previous session. But they do not have to. Note that their “choice” does not have to be explicit–they can choose to use the same rules by simply continuing to use them.
If Rule XXII is continuously in effect, and does not expire, how does one come to the conclusion that it applies on January 4th and every day thereafter, but there’s something different about January 3rd? How does one come to the conclusion that there is 24 hours in which that rule doesn’t apply?
The process for amending the Senate rules on the first day of session is no different than amending them on the 85th day of session.
Yes, a majority can always amend the rules, at any time of day or night, spring, summer, winter or fall. Unless there is a filibuster, in which case Rule XXII applies, as all the Standing Rules apply on every day the Senate is in session. If you seek a cite:
Can the Senate simply start ignoring its rules on the second day of session, without a vote or anything, just by simply starting to ignore the rules? How do we know if the Senate is operating under any rules whatsoever? Can the Senate, without debate or votes, simply make up its own rules as it goes along?
And to ask a question a different way: how do we know that the Senate has one day to change its rules? By what means do we know that the Senate doesn’t have three weeks to decide on its rules by a majority vote? Conversely, how do we know that this supposed window in which the rules can change with immunity to filibusters does not last for only one minute? This “first day” theory is totally made up and without substance or reason.
First of all, no that Senate cannot change the rules on the first day. Under Rule V the earliest the rules can be changed is the second day.
Second, given the way the opinion in Ballin is written, I believe that even though each house can make their own rules it would have to follow some standard of parliamentary law.
Let me expand on my earlier comment. First of all, although you did not request a primer on parliamentary law, you need to know some basics to understand why things are the way they are. There would never be rule changes on the first day of a session. The idea of Notice is critical in parliamentary law because on something as important as rule changes, each member should know that they should be present to debate and vote. It also prevents rump sessions from voting in rule changes that would affect the body as a whole.
As for the rule changes. Assuming everyone loves them and a majority vote for them then they are passed. More likely, there would be a vote for Division so each law is voted on separately. Now let look at a rule change that would limit each Senator to an hour of debate per motion and 35 Senators oppose it. The Chair could not call for a cloture vote because it will be a roll-call vote. They cannot make Senators sit as “out of order” because an Appeal on that specific issue is debatable. Instead you need to go nuclear and would need a majority of Senators who are willing to allow the Chair to abuse their power in this case to allow the rule change to come up for a vote (to avoid the paradox of filibustering a rule to remove filibustering). It looks like the Chair would have to not recognize any Senator that will filibuster the motion. If a Point of Order is raised then the Chair rules the point not well taken and on Appeal, a majority uphold this Appeal. At that point, the Chair declares the debate over (again addressing a Point of Order and Appeal) and takes the roll-call vote on the main motion.
Any day. The Senate (which currently means 51 Senators in agreement) can change any of its rules on any day, because it cannot be bound by a previous Senate. Any rule is only binding if the Senate wants it to be binding.
Sigh
Why can’t a session of a Senate be bound by a previous session? It happens all of the time in deliberative bodies. A new session is NOT starting over from scratch. Let’s take a simple example. The executive board of your Church has made it a standing rule (standing meaning permanent unless rescinded) that every 1 April the church give $100 to Polly’s House of Purloined Pussies. The Board is obligated to do that every year even though each year is a new session. Then one year a member of the Board realizes that it’s not a halfway home for stolen cats and the Board passes a motion to Rescind a Motion Previously Passed and now that is not a standing rule. This idea that one session cannot “bind” a later session is simply not true given that a later session can always change rules to suit their needs which binds future sessions until THEY change the rules and so on.
To say that the rules do not continue form one session of a deliberative body to the next is simply not true. Read any work on Rules of Order (Robert’s is the most common but Mason’s Manual is the standard for legislative bodies and there are others) and you will not find one of them that implies that a continuing body needs to create rules ex nihilo every session. And before you quote the Constitution, it does not say that each Session gets to make their own rules but each House and in the Senate Rule V is the controlling rule.
Of course that is not to say that a House of Congress couldn’t pass a standing rule that rules need to be created ex nihilo every session and it doesn’t prevent a session from passing a new slate of rules to replace the old one by a majority vote but for people with no background in parliamentary law and no citations to stick their fingers in their ears insisting rules cannot and do not carry over from one session to the next is like denying we landed on the Moon or the planes did not bring down the towers. If you want to insist that rules don’t carry over then give a CITE.
Saint Cad (studying to be Saint Cad, CP, RP)
Because the Senate is a Constitutional body which says it makes its own rules. The Senate can choose to keep the rules from a previous session, by following them, but it’s not required to use them. The only rules the Senate is required to follow are the ones in the Constitution.
I’m not saying that the rules do not continue. I’m saying the Senate only follows the rules because it chooses to.
Those rules are not authorities with respect to the houses of Congress.
Rule V is simply another rule that the Senate could change at will.
Yes, the previous Senate rules do bind the current session until the session changes the rules. And because of that under Rule V the Senate cannot change rules on the first day because previous notice needs to be given.
Could a Senate change Rule V to say rules must be adopted the first day of the new session? Sure but that is not the rule in effect right now. Could the Senate make a rule that cannot be rescinded by a future session? No. Would those new rules “bind” later sessions? Yes unless that session changes the rule.
So basically your first post saying rules can be changed the first day is wrong (until that rule is changed). Your second one is correct but with the caveat that each session is bound by previous rules unless rescinded or changed.
To the extent that filibusters are allowed at all, they need to be maintained by someone actually holding the floor, with cameras pointing at him and broadcasting direct to the public (and to the public domain, so that all and sundry are free to include clips in their expressions of opinion about the candidate).
Under these rules, there is a real cost in both physical discomfort and political risk (e.g. if McCain and Graham conducted a filibuster of the Susan Rice nomination under these rules, I’d be starting a betting pool on which one would be the first to drop the N-bomb).
Point of correction: The proposal on the table is to cut taxes on 100% of the American people on their first $250K of income.
It would be clearer still if the blackboards and small words stated the actual situation – the Democrats propose a tax cut for everyone, but without an extra tax cut for the top 2%.
There’s no reason that the Senate could not change Rule V on single day. If 51 Senators decide not to follow Rule V, then it’s no longer a rule of the Senate. Even if they give no notice.
Look at it in the extreme case. What if Rule V said that 3650 days notice must be given before changing a rule. Do you really think that a majority of the Senate could not change that rule after giving less notice? I think a reasonable interpretation of the Constitution would say they could change a rule, even while violating the old rules–because majority of the Senate has the final say over what is a rule of the Senate and what is not.
As I understand it, filibusters have not been conducted that way for decades and decades. And yes, they need to change the rules. I’ve argued against this before and I recognize that the Democrats also did this to a lesser extent when Bush was president, but unsurprisingly it’s escalated and the state of affairs has become totally absurd. It shouldn’t take a 60- or 61-vote majority to get anything done in the Senate. Senators shouldn’t be able to block nominations anonymously and federal courts and agencies shouldn’t go understaffed for years just because the party that doesn’t control the White House have decided their highest priority is being a pain in the ass.
