# No (or less) use of the filibuster means better Democracy **URL:** \ **Category:** Politics & Elections\ **Created:** [November 23, 2013, 7:41pm UTC](https://boards.straightdope.com/t/no-or-less-use-of-the-filibuster-means-better-democracy/674637 "2013-11-23T19:41:58Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![Pleonast](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/pleonast/32/1183_2.png) [@Pleonast](https://boards.straightdope.com/u/Pleonast)\ **Post date:** [December 5, 2013, 7:13pm UTC](https://boards.straightdope.com/t/no-or-less-use-of-the-filibuster-means-better-democracy/674637/61 "2013-12-05T19:13:29Z")
> [@Ravenman](#): > > While fully acknowledging that there are cases that make interpretation of law very difficult; I say that the Supreme Court, the Senate, and any other government agency is not entitled to their own version of the English language in which the interpretation of words can be held to be completely opposite to the plain reading of those words. That’s a just stance, but not legally relevant. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [December 5, 2013, 7:14pm UTC](https://boards.straightdope.com/t/no-or-less-use-of-the-filibuster-means-better-democracy/674637/62 "2013-12-05T19:14:02Z")
> [@2sense](#): > > It’s not just the Senate that allows appeals from the ruling of the chair. As I’ve said, it’s a basic feature of parliamentary procedure. Can you provide cites of other legislatures where appeals of the ruling of the chair has resulted in the plain text of the parliamentary procedures being thrown out? Seems to me that overturning an interpretation of the rules is perfectly acceptable practice, so long as the resulting ruling is consistent with the rules. But that isn’t what happened. > [@](#): > > The Senate is no more likely now to fall into disorder and constantly changing procedure than they were 2 months ago. Democratic Senators didn’t vote to undermine their own individual political power by limiting the filibuster on a whim. It took years of Republican abuse before they were prepared to make that sacrifice. I already cited one example from less than two months ago where the House changed its rules specifically to obtain a temporary political advantage. Now I’m saying that the Senate is free to do the same, while that has not been the practice of the Senate in the past. I find it hard to believe that anyone can disagree with that fact. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [December 5, 2013, 7:15pm UTC](https://boards.straightdope.com/t/no-or-less-use-of-the-filibuster-means-better-democracy/674637/63 "2013-12-05T19:15:43Z")
> [@Pleonast](#): > > That’s a just stance, but not legally relevant. Are you fucking kidding me? Would you like me to dig out citations that the interpretation of law must remain within the text? ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [December 5, 2013, 7:20pm UTC](https://boards.straightdope.com/t/no-or-less-use-of-the-filibuster-means-better-democracy/674637/64 "2013-12-05T19:20:40Z")
> [@Pleonast](#): > > A Senate rule cannot contradict the Constitution. Just like the Senate cannot expel a member with a simple majority, the Senate can change a rule with a simple majority. > > They can set whatever rules they like, and follow them however they wish, but rules cannot take away the Senate’s power to make it’s own rules (or any other clause of the Constitution). If the majority does not want to change rules unless three-fifths (or two-thirds, or all) agree, that’s the majority’s prerogative. > > The common law of a legislative body is that a majority of a quorum of its members can make decisions for the body, unless specified otherwise. (Sorry, I have no cites, but how could it be otherwise?) The establishing law of the Senate says that each house determines its rules. No specification of a super-majority or unanimity, so a simple majority is what is needed. No rule can override that. This still doesn’t make sense to me. The constitution doesn’t provide that rule changes must be made by majority vote, does it? So I don’t get the “conflict with the constitution” issue? Conceptually, what’re you saying could make sense when it comes to the _adoption_ of the rules, but not the _changing_of the rules. (I am assuming that the Senate readopts the rules every session, either explicitly or implicitly. Obviously, the current Senate cannot pass rules that bind the next Senate). ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [December 5, 2013, 7:25pm UTC](https://boards.straightdope.com/t/no-or-less-use-of-the-filibuster-means-better-democracy/674637/65 "2013-12-05T19:25:08Z")
> [@Falchion](#): > > (I am assuming that the Senate readopts the rules every session, either explicitly or implicitly. Obviously, the current Senate cannot pass rules that bind the next Senate). Actually, since the beginning of the Senate, the Senate has considered itself a “continuing body” so that rules carry over from one Senate to another unless changed. This is principally because 2/3rds of the Senate continues into every new session of Congress. So, there is no vote on adopting the rules at the beginning of each Congress for the Senate, whereas the House votes on its rules every two years. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [December 5, 2013, 7:37pm UTC](https://boards.straightdope.com/t/no-or-less-use-of-the-filibuster-means-better-democracy/674637/66 "2013-12-05T19:37:41Z")
> [@Pleonast](#): > > The common law of a legislative body is that a majority of a quorum of its members can make decisions for the body, unless specified otherwise. (Sorry, I have no cites, but how could it be otherwise?) The establishing law of the Senate says that each house determines its rules. No specification of a super-majority or unanimity, so a simple majority is what is needed. No rule can override that. By passing a rule that required a supermajority to invoke cloture, the Senate _did_ specify otherwise. The provision that “each house determines its rules” - which _you_ keep referring to - does not help your argument. It invalidates it. ---
**Author:** ![Pleonast](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/pleonast/32/1183_2.png) [@Pleonast](https://boards.straightdope.com/u/Pleonast)\ **Post date:** [December 5, 2013, 8:03pm UTC](https://boards.straightdope.com/t/no-or-less-use-of-the-filibuster-means-better-democracy/674637/67 "2013-12-05T20:03:03Z")
> [@Falchion](#): > > This still doesn’t make sense to me. The constitution doesn’t provide that rule changes must be made by majority vote, does it? So I don’t get the “conflict with the constitution” issue? > > Conceptually, what’re you saying could make sense when it comes to the _adoption_ of the rules, but not the _changing_of the rules. (I am assuming that the Senate readopts the rules every session, either explicitly or implicitly. Obviously, the current Senate cannot pass rules that bind the next Senate). The Constitution doesn’t specify how the Senate determines its rules. The only reasonable default is that a simple majority of a quorum decides. Note that the Constitution gives the Senate the power to “determine” its rules. That’s more comprehensive than “adopt”. > [@Really\_Not\_All\_That\_Bright](#): > > By passing a rule that required a supermajority to invoke cloture, the Senate _did_ specify otherwise. The provision that “each house determines its rules” - which _you_ keep referring to - does not help your argument. It invalidates it. I’m apparently not explaining my argument well. The Senate has the power to determine its rules. The Senate can adopt any rules it likes, that do not contradict the Constitution. That means a three-fifths super-majority to invoke cloture is perfectly legal–that rule does not contradict the Constitution. However, a rule cannot remove the Senate’s power to determine its rules, because the Constitution supersedes any rule. If there’s any conflict between the Constitution and the rules, the Constitution wins. So although Senate rules can require super-majorities for many things, requiring a super-majority for changing the rules cannot be enforced (unless a majority chooses to), because in the end, it’s a majority that determines the rules. Thus, a simple majority of a quorum decides what the Senate determines its rule are. ---
**Author:** ![septimus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/septimus/32/410_2.png) [@septimus](https://boards.straightdope.com/u/septimus)\ **Post date:** [December 5, 2013, 8:12pm UTC](https://boards.straightdope.com/t/no-or-less-use-of-the-filibuster-means-better-democracy/674637/68 "2013-12-05T20:12:52Z")
> [@Ravenman](#): > > … rules carry over from one Senate to another unless changed. … So, there is no vote on adopting the rules at the beginning of each Congress for the Senate … Has your point all along been that rule changes are in order at the beginning of a session, but not later? That’s a plausible stance, asked and answered in previous threads. _But if that was the point, why didn’t you just say so?_ Why the need to bring up strike zones, etc. etc. in a filibuster? :smack: > [@Pleonast](#): > > The only reasonable default is that a simple majority of a quorum decides. Yes. Note that if 49% can decide then two contradictory rules may be passed, while a 52% requirement might mean no rule at all could be decided! Fortunately, when the V.P. is included, the Senate has an odd number (101) of voters, as required for decision definiteness. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [December 5, 2013, 8:13pm UTC](https://boards.straightdope.com/t/no-or-less-use-of-the-filibuster-means-better-democracy/674637/69 "2013-12-05T20:13:50Z")
> [@Pleonast](#): > > The Senate can adopt any rules it likes, that do not contradict the Constitution. That means a three-fifths super-majority to invoke cloture is perfectly legal–that rule does not contradict the Constitution. > > However, a rule cannot remove the Senate’s power to determine its rules, because the Constitution supersedes any rule. If there’s any conflict between the Constitution and the rules, the Constitution wins. So although Senate rules can require super-majorities for many things, requiring a super-majority for changing the rules cannot be enforced (unless a majority chooses to), because in the end, it’s a majority that determines the rules. Let’s be a little more precise in our language here: the 2/3rds margin applies to ending debate on a rule change. The vote on a rule change is still a majority vote. If a 3/5ths majority to end debate on a bill (which would then be passed by a majority) is not an unconstitutional barrier to the Senate passing legislation; why is a 2/3rds majority to end debate on a rule change (which would then be passed by a majority) an unconstitutional barrier to the Senate adopting rule changes? ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [December 5, 2013, 8:17pm UTC](https://boards.straightdope.com/t/no-or-less-use-of-the-filibuster-means-better-democracy/674637/70 "2013-12-05T20:17:32Z")
> [@septimus](#): > > Has your point all along been that rule changes are in order at the beginning of a session, but not later? That’s a plausible stance, asked and answered in previous threads. _But if that was the point, why didn’t you just say so?_ Why the need to bring up strike zones, etc. etc. in a filibuster? :smack: No, that isn’t what I said. Rule changes in accordance with the rules can be done at any time. (So long as the process conforms with the rules, of course.) Some people have said that the Senate can change its Standing Rules on the first day of session by a special process that only requires a majority vote, and I disagree with them because they are inventing a procedure that isn’t written down anywhere. ---
**Author:** ![Pleonast](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/pleonast/32/1183_2.png) [@Pleonast](https://boards.straightdope.com/u/Pleonast)\ **Post date:** [December 5, 2013, 8:23pm UTC](https://boards.straightdope.com/t/no-or-less-use-of-the-filibuster-means-better-democracy/674637/71 "2013-12-05T20:23:02Z")
> [@Ravenman](#): > > Let’s be a little more precise in our language here: the 2/3rds margin applies to ending debate on a rule change. The vote on a rule change is still a majority vote. > > If a 3/5ths majority to end debate on a bill (which would then be passed by a majority) is not an unconstitutional barrier to the Senate passing legislation; why is a 2/3rds majority to end debate on a rule change (which would then be passed by a majority) an unconstitutional barrier to the Senate adopting rule changes? It’s not unconstitutional, so long as a simple majority determines it’s a rule of the Senate. But if a simple majority determines that a rule does not apply, then it doesn’t. In summary: a simple majority of a quorum always gets to determine the rules. That means adopting, changing, interpreting, enforcing, etc. If a simple majority wants to enforce a super-majority requirement, then it can. If it wants to take that requirement away, it can, even if that super-majority requirement “should” apply to taking it away. ---
**Author:** ![septimus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/septimus/32/410_2.png) [@septimus](https://boards.straightdope.com/u/septimus)\ **Post date:** [December 5, 2013, 8:24pm UTC](https://boards.straightdope.com/t/no-or-less-use-of-the-filibuster-means-better-democracy/674637/72 "2013-12-05T20:24:07Z")
> [@Ravenman](#): > > Rule changes in accordance with the rules can be done at any time. (So long as the process conforms with the rules, of course.) So, to summarize: If 60 Senators now pass a rule that 70 votes are required on \*all \*future votes, that rule will be binding, in your interpretation, on all future Senates, until 70 Senators overturn it? ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [December 5, 2013, 8:41pm UTC](https://boards.straightdope.com/t/no-or-less-use-of-the-filibuster-means-better-democracy/674637/73 "2013-12-05T20:41:35Z")
> [@Ravenman](#): > > Actually, since the beginning of the Senate, the Senate has considered itself a “continuing body” so that rules carry over from one Senate to another unless changed. This is principally because 2/3rds of the Senate continues into every new session of Congress. So, there is no vote on adopting the rules at the beginning of each Congress for the Senate, whereas the House votes on its rules every two years. Oh, well then maybe he’s right that it’s unconstitutional. My position is based on the view that if 10 of us get together and set some rules and that one of those rules is that it takes 6 votes to change the rules, then that’s still us “determining” the rules. But if that continues indefinitely, notwithstanding changes in the group, then at some point (and it may be as soon as one changeover in membership), it’s no longer the group deciding its own rules; it’s the previous group setting rules for the new (similar but nonetheless different) group. There has to be a way for a majority of the current Senate to (at some point in the session) change the rules adopted by a previous Senate. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [December 5, 2013, 8:45pm UTC](https://boards.straightdope.com/t/no-or-less-use-of-the-filibuster-means-better-democracy/674637/74 "2013-12-05T20:45:27Z")
Suppose we have a senate that has some particular rule, and is faced with the question of whether to continue having that rule. Now suppose that 49 senators support keeping the rule, and 51 senators oppose keeping the rule. Which of the two can be said to represent the will of the Senate as a whole? There is no possible answer to that other than to say that the 51 represent the will of the Senate as a whole. If the 51 cannot remove the rule, then the Senate cannot set its own rules, in defiance of the constitutional stipulation. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [December 5, 2013, 9:31pm UTC](https://boards.straightdope.com/t/no-or-less-use-of-the-filibuster-means-better-democracy/674637/75 "2013-12-05T21:31:17Z")
> [@septimus](#): > > So, to summarize: If 60 Senators now pass a rule that 70 votes are required on \*all \*future votes, that rule will be binding, in your interpretation, on all future Senates, until 70 Senators overturn it? I don’t believe a rule could conflict with the specific Article I powers, such as the threshold to pass a bill, approve a nomination, approve a treaty, expel a member, and yes, even to approve a rule change. However, the Senate could choose any threshold it wishes for the rules of its proceedings. If it wanted to require unanimous consent to end debate on a measure, it could – as the Senate rules actually required for about a century. Similarly, if it wanted to change the thresholds for other procedural matters (maybe the Senate would want to lower the threshold for cloture to 40 votes), I say the rulemaking power specifically allows them to do that, in compliance with the Senate rules. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [December 5, 2013, 9:33pm UTC](https://boards.straightdope.com/t/no-or-less-use-of-the-filibuster-means-better-democracy/674637/76 "2013-12-05T21:33:47Z")
> [@Chronos](#): > > Suppose we have a senate that has some particular rule, and is faced with the question of whether to continue having that rule. Now suppose that 49 senators support keeping the rule, and 51 senators oppose keeping the rule. Which of the two can be said to represent the will of the Senate as a whole? There is no possible answer to that other than to say that the 51 represent the will of the Senate as a whole. If the 51 cannot remove the rule, then the Senate cannot set its own rules, in defiance of the constitutional stipulation. Depends on the specific question before the Senate. If 51 senators want to end debate on a bill, they do not speak for the Senate. If 67 senators want to end debate on a rule change, they do speak for the Senate. That’s what the Senate rules say is required for each of those situations. ---
**Author:** ![Pleonast](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/pleonast/32/1183_2.png) [@Pleonast](https://boards.straightdope.com/u/Pleonast)\ **Post date:** [December 5, 2013, 9:45pm UTC](https://boards.straightdope.com/t/no-or-less-use-of-the-filibuster-means-better-democracy/674637/77 "2013-12-05T21:45:51Z")
> [@Ravenman](#): > > That’s what the Senate rules say is required for each of those situations. And who determines what the Senate rules say is required in a situation? That right: a simple majority. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [December 5, 2013, 9:55pm UTC](https://boards.straightdope.com/t/no-or-less-use-of-the-filibuster-means-better-democracy/674637/78 "2013-12-05T21:55:41Z")
> [@Pleonast](#): > > And who determines what the Senate rules say is required in a situation? That right: a simple majority. You never responded to my quip about whether you needed cites that interpretations of law are supposed to remain within the plain English reading of the words, contrary to your assertion. Do you need cites for this rather obvious conclusion? A majority voting to require the meaning of words to be fundamentally at opposition with their plain meaning remains an egregious violation of the principles of law. ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [December 5, 2013, 10:09pm UTC](https://boards.straightdope.com/t/no-or-less-use-of-the-filibuster-means-better-democracy/674637/79 "2013-12-05T22:09:37Z")
Ravenman, which specific rule are you alleging was violated by Reid over the filibuster reform vote? I genuinely want to know. As I understand it, the Senate only needs a simple majority for most things, but the issue is that the GOP threatens to filibuster anything that Dems can’t get 60 votes on since the vote to end the filibuster requires 60 votes. However, Reid and the Dems won on a 52-48 vote for amending the rules to the Senate, presumably on how many votes are needed to end a filibuster. Not being a Constitutional scholar, my first question was why the GOP didn’t filibuster the 52-48 vote. Given their obstructionism, it seems to be that they couldn’t. So why couldn’t they? What specific rule prevents the minority from filibustering the 52-48 vote that allowed the amending of Senate rules? ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [December 5, 2013, 10:20pm UTC](https://boards.straightdope.com/t/no-or-less-use-of-the-filibuster-means-better-democracy/674637/80 "2013-12-05T22:20:56Z")
> [@YogSosoth](#): > > Ravenman, which specific rule are you alleging was violated by Reid over the filibuster reform vote? I genuinely want to know. Sure, I’ll try to be as concise as possible. The Standing Rules of the Senate state that 67 votes are needed to end a filibuster on a motion to change the Standing Rules on how filibusters on nominations can only be ended with 60 votes. (You may need to read that a couple times!) Reid knew that there were not 67 votes to do that, so he did something different. Here’s what he did: Reid made a point of order that to end debate on a judicial nomination, only a majority of votes are required. Because the Standing Rules of the Senate also expressly state that 60 votes are required in that situation, the Presiding Officer ruled against him. Reid then moved to appeal the ruling of the chair, in which only a majority is needed to reverse the Presiding Officer’s ruling. He got 52 votes. So today, the Standing Rules of the Senate still say that 60 votes are required to end a filibuster on a nomination, but from now on, the Presiding Officer is bound by precedent to rule that 51 votes are sufficient to end that filibuster. Does that clear it up? > [@](#): > > What specific rule prevents the minority from filibustering the 52-48 vote that allowed the amending of Senate rules? A motion to make a point of order and a motion to appeal the ruling of the chair are both non-debatable, therefore they cannot be filibustered. The Presiding Officer must rule immediately on a point of order; the Senate must vote immediately whether to overturn that ruling. [Previous page](https://boards.straightdope.com/t/no-or-less-use-of-the-filibuster-means-better-democracy/674637.md?page=3) [Next page](https://boards.straightdope.com/t/no-or-less-use-of-the-filibuster-means-better-democracy/674637.md?page=5)