Yes there is because they need to follow the rules in effect at the time. I don’t know why you think a body can just violate its own rules to do whatever it wants. If that is the case then there are no rules because the majority at that moment is free to do whatever they want. I would think that if the issue ever came before SCOTUS, such a procedure would be unconstitutional because inherent in the right to make their own rules is the obligation to follow those rules. In other words, if the Senate makes the rules, then future sessions cannot ignore them because in effect the nullification would mean that the Senate doesn’t really make rules. Also, in Ballin, SCOTUS made note that Congress acted within their own rules and followed accepted parliamentary law. Therefore that precedent would not apply is either House violated their own rules or worked outside of standard parliamentary law practices.
To answer your exteme case: yes. Just because the Senate makes a stupid rule (like unlimited debate) doesn’t change the fact that it is a rule. Otherwise the filibuster would have long since been thrown out. Since it does not conflict with Rule XVIII I say it stands.
The Constitution gives the Senate the power to make its own rules. The Senate cannot revoke that power (only a Constitutional amendment could do that) by denying itself the power to change its rules. That is, a rule cannot prevent itself from being changed, because a rule cannot override the Constitution, which gives the Senate the power to make its rules.
The majority is free to do whatever it wants (within the bounds of the Constitution). It might choose not to do something because of an expectation that the table will turn in the future, but it certainly could choose to do so.
What the fuck does that have to do with what I wrote? Nobody has ever said that the Senate could write a rule that was irrevocable. The only thing I said was to be a legal rule change, the procedure needs to follow the rules in place at the time. Your attitude that the majority can do whatever it wants whenever it wants just because it is the majority means there are no rules.
Look you clearly have this idea that any deliberative body is really anarchy in waiting where the majority is God and has no limits on its power as long as it stays The Majority. I’ve countered with Ballin (that rules need to be followed to be a valid motion), basic parliamentary law (Notice is always given for rules changes) and even pointed out that your own position is contradictory that if the House is allowed to make rules but those rules do not have to be obeyed then they’re not really rules.
Yes, the majority can do whatever they want because the majority decides what the Senate does. The only limit is the Constitution. The Senate (hence a majority within it) decides what its rules are. That means both choosing the rules and interpreting them. Just because the rules can be changed does not mean there are no rules–that’s a fallacy of the excluded middle.
You said the majority can choose to violate the rules (in this case Rule V) if they want because the majority at the time is to sole arbiter of what the rules are. Correct? Will if so then there are no rules because if a majority decides to not follow a rule then they don’t have to. Isn’t it kind of in the definition of a rule that they need to be followed? Why even have standing rules? Why not just say that as long as a majority agrees to something then it’s done?
Because they choose to follow the rules they’ve previously agreed on. They do not have to abide by the rules they’ve previously chosen, but they can. If they wanted to make the rules something simple like straight vote all the time, they could. Instead, because of tradition and because most Senators have either been in the minority or can imagine being in it, they choose to follow rules that gives substantial rights to the minority. But the Senate cannot obligate itself via rule to follow any particular rule because the Constitution gives the Senate the power to decide on its rules, which necessarily means its majority can enforce new rules at any time.
So do they need to follow the current rules until they change them with a majority vote?
More specifically, do they need to follow Rule V until they change it with a majority vote?
The filibuster is a good thing because it allows for a certain amount of hysteresis in the legal machine. If a simple majority can do whatever it wants, then there will be far more ‘regime changes’ that cause sweeping legal ramifications for citizens.
The argument is that large change requires large agreement. If the entire direction of government can change when society is essential divided on what the proper direction is and therefore the Senate is maybe 51-48, that’s not a good thing. Nor is it a good thing for your side if you get a law passed by simple majority, only to see it struck down a year or two later by another simple majority. But if you have to get 60 votes to get a bill passed, and you need 60 votes to get the bill rescinded, then the other side has to move 20 senators to its position before your work can be undone.
What would be really hilarious is if the Democrats successfully ended the filibuster, only to lose their simple majority in 2014 and have the Republicans use their new simple majority to unwind everything Democrats have done in the preceding six years. So be careful what you wish for.
Then the constitution should be amended so that it requires a 60% majority to pass anything in the senate, or it should’ve been written there in the first place. The procedural fillibuster is bullshit and essentially allows the side most dedicated to obstructionism over actually attempting to solve problems to wield undue power. That leaves the other side the choice - either retaliate and force stalemates so that nothing gets done, or roll over and pass legislation for the good of the country, but allow yourself to be bullied by a minority.
If all participants had legitimate good intentions and good faith as far doing their best to improve the country, it might not be so bad. But that clearly has not been the case in recent times, which is why the fillibuster procedure should be reconsidered.
You know what else would be funny, bro? If the Dems undid the filibuster and were able to pass all sorts of shit in the Senate that would make your head explode, and held onto the majority for a few decades, so we ended up with a Supreme Court throughout the 21st century where the most conservative justice was Sotomayor. That’s some funny shit!
Thanks. Isn’t it great that we can swap fantasies about shit that will never happen in a million bazillion years? I think so. Love to hear some more of yours.
We already have a bunch of other choke points in the system. Two seperate legislative bodies, plus a Presidential veto, plus judicial review. I don’t think our system really suffers from inadequate choke points.
Plus, the stuff being filibustered isn’t sweeping changes, its pretty much everything.
I suspect they’d have trouble convincing Obama not to veto the “rewind America” act.
I love this thread. There are great arguments on both sides and I remain on the fence. Here is a hypothetical:
Suppose an outgoing Senate has a 2/3 majority of party X, but party Y will have a 75% majority of the incoming Senate. Could the outgoing Senate change the rules such that an 80% majority is needed for cloture, thereby preventing the incoming Senate from passing any laws?
I’m fighting the hypothetical here, but with only 1/3rd of the Senate up for election every two years, such a swing in control isn’t mathematically possible.
Well if the Parliamentarian doesn’t take the constitutional position that Pleonast puts forth, the Dems can always fire him and install another, just like the Republicans did to Robert Dove in May 2001. In May 2001, Republican leadership fired Frumin’s predecessor, Robert Dove, after he issued a series of rulings that complicated their efforts to pass aspects of the Bush tax cuts and budget proposals through reconciliation. Dove had decided it was inappropriate for money intended for natural disaster relief to be considered through budgetary rules – and he was summarily axed.
It was not the first time Dove had been fired from the post. In a Washington Post op-ed at the time, Washington attorney Jeffrey Smith noted that: “The Democrats have also fired the parliamentarian. When he became majority leader in 1987, Robert Byrd fired Dove. When the Republicans regained the Senate in 1994, they brought Dove back as parliamentarian.” Furthermore, the Vice President has the authority to over-rule the parliamentarian. Ethics would demand such an approach, if the Republicans insisted on requiring that all bills passed in the Senate be subject to an unconstitutional 60 vote super-majority. Hopefully there will at least a few patriots on the Republican side who support the re-establishment of constitutional practices, so such maneuvering will be unnecessary.
OK, party X has 61 seats: enough to force cloture and pass any bill. They lose 33 seats in the election and know that they will a 28-72 minority once the new session starts. Can they change the rules to require 73 votes to end a filibuster, hamstringing the incoming Senate?
