The precedent that the rules can be changed with 51 votes (or rather, with a simple majority of the votes) is an ancient one. It’s the supermajority requirement that was the dangerous precedent.
Majority rule is a fundamental principle of American parliamentary procedure. I’m not saying that as a justification of the actions of the Democratic Majority but as a simple statement of fact. It is because of this fact that the procedures that allowed the “nuclear option” have always been there. The ruling of a presiding officer has always been subject to being overturned by majority vote. It is the majority that controls procedure at all times. The presiding officer is the servant of the assembly and not vice versa. The Senate rules now mean no more or less than they ever did.
So there has been no revolutionary change in the balance of power in the Senate. Everyone who understood how things worked knew all along that if was only the forbearance of the Majority that allowed the filibuster. I predict that what remains of the filibuster will remain intact since there is no longer much pressure against it. I do expect more procedural chances to things like the blue slips assuming the GOP will continue to try to use holds to stall Obama judicial nominees.
The fact that Senate procedures are at odds with Senate rules is an issue, if only for the sake of appearances. I don’t expect it will be long before the text of the rules are altered. If nothing else the Majority can simply rewrite the rules at the beginning of the next Congress. The quorum of the Senate however is a constitutional issue. The Senate can make rules about how to decide if a majority of members are present but if they tried to change the benchmark itself we would see the courts step in.
Ancient, eh? How ancient, exactly? Please be precise.
Because as I look at the law review paper authored by the invididuals who proposed the nuclear option to reform the filibuster, they recount four instances of a similar procedure being used. The earliest example they cite is from 1977. And furthermore, the then-majority leader, Robert Byrd, who actually carried out that procedure, later argued strenuously against invoking the nuclear option on filibusters. He said that what he did as majority leader was far different than rewriting the plain text of Senate rules.
So if you can provide specific instances of the use of the nuclear (or constitutional, if you prefer) option that are “ancient” I think many people would learn something valuable.
Actually, it is not. My cite is the Senate rules. What’s yours?
Do you honestly see no difference between a body deciding that the chair has erred in applying the rules to a challenging and vague situation; as opposing to deciding that the chair has erred in finding that a rule actually exists?
I liken this to the strike zone in baseball. The rules clearly state that the strike zone is from the knees to the armpits. However, that rule is very often construed to being from the knees to the belt. What is the point of having a rule that says “A” if at a whim, and in a manner not in compliance with the written rules, someone can decide that the rules actually mean “B”, even though “B” has zero written foundation in the rules?
Suppose we took this arbitrary standard to other aspects of institutions. For example, the SDMB has a rule that Ye shall Not insult other Posters outside of the Pit; but in the Pit, it is okay to call someone a bad name. And so, based on that rule, I call poster JohnDoe1234 a stupid mellonhead in a Pit thread; yet the moderators ban me for doing so. Why? Because a majority of moderators decided that in this instance, I broke the rules. But by the text of the rules, I did not – and the moderators are not claiming that they actually changed the rules. The rules of the SDMB still state that one can call other people names in the Pit, but they just decided to enforce the rules in a way that is completely contrary to how the rules are actually written.
It’s the entire point of rules that a rule controls behavior according to the plain text of the rule, notwithstanding the difficulty of applying a rule to challenging or ambiguous circumstances. If people don’t follow the plain text of the rule, then there aren’t rules, are there?
And you’re just wrong in that the majority controls procedure at all times. In the Senate, most work is done by unanimous consent, so it’s not even worth discussing this baseless error.
It’s not appearances. It goes to the very heart of what rules and laws are. There’s a reason that modern, responsible countries follow the rule of law; and shitty countries have laws that can be dismissed when it isn’t convenient for those in power to abide by them. Seriously, adherence to rules is what makes societies work fairly.
There is no textual basis or precedent for this. It’s a totally fabricated idea.
This point is well-taken and you are right: a quorum is defined in the Constitution. I regret my error. However, the point stands that the Senate has established a precedent that the plain text of any rule it has can be discarded on a whim, without any care for what the rule says.
I’m afraid I must side with those who think this post shows major confusion.
[QUOTE=The Constitution of the United States, Article I, Section 5]
Each House may determine the Rules of its Proceedings,
[/QUOTE]
If 51% of a House determines that a Rule of its Proceedings shall be “A” and 49% of that House determines that a Rule of its Proceedings shall be “B” then the Rule of its Proceedings shall be “A.” It’s as simple as that.
But it does not say that every action of either house must be by majority vote. That provision invests in each house the ability to determine its rules; it does not provide for the process of how those rules are made. And regardless, we are still left with the situation where the rules literally say “A”, but “A” is interpreted to mean something that does not appear in text. Again, it is like saying that a SDMB moderator may ban someone for breaking the rules, when the text of the rules state that the person who was banned did nothing wrong.
I ask you, just as a general philosophical point, what is the point of having written rules if the interpretation of the rules is completely at odds with the meaning of the text? It’s absurd. It’s actually worse than an undemocratic situation, it’s one where the fundamental principle of the rule of law no longer applies.
But let me ask you a specific question on that provision of the Constitution: the House has a rule that allows expedited votes on uncontroversial bills. Debate and amendment is sharply limited, but the bill must pass with a 2/3rds vote. (If the bill doesn’t get 2/3rds, it has to be called up under normal procedures with provisions for debate, amendments, motions, etc. and passage would be by majority.) Does the fact that the House has a rule which requires a 2/3rds vote for a procedure that isn’t specifically allowed under the Constitution make that procedure unconstitutional? Is this process an abuse of that same provision of the Constitution?
My cite is also the Senate rules. You will note that the provision to appeal from the decision of the chair is in the Senate rules. If you want more cites then look at any other deliberative body in these United States. The U.S. House has a similar rule. So does the Senate of New York or the Assembly here in Penna or the unicameral legislature of Nebraska. As I say, there is a basic assumption that the chair cannot dictate the rules against the will of the majority.
Certainly there are differences. I don’t see any which effect either my assertion of the principle of majority will or with the actual procedure used in the “nuclear option”.
Not just anyone has changed the Senate rules. Only a majority which is the very foundation of the rules themselves.
The main point of having parliamentary rules in the first place is to allow the group to accomplish its goals. There are other principles to be sure including the rights of the minority to be speak but the main concern for rules is that they work. The rules for appealing from the decision of the chair are part of this. They ensure that the individual entrusted with the gavel cannot obstruct. Do they allow insincere voting to achieve the goals of the majority? Certainly. They do and always have. And yet deliberating bodies continue to have these rules.
Saying that the will of the majority is the guiding principle of a deliberative body is not to say that the rules cannot allow a minority to prevent certain actions. Again all assemblies including the Senate have such rules to protect the rights of the minority. But again these rules as all other rules are ultimately only sustained by the will of the majority. The minority has the right to participate but nothing trumps the right of the majority to act.
I’m no expert on foreign parliamentary procedure but I would be very surprised to find that in any of the legislatures of these modern, responsible countries you speak of do not allow a majority of members to overturn the decisions of the presiding officer.
Let me ask you a simple question of how laws are interpreted. Let’s say there’s a law that prohibits a very general thing, such as, “No person shall be allowed to own a dangerous weapon.” And then there’s a law that’s more specific, but not in keeping with the general principle, such as, “Each person shall be allowed to own one gun.”
If both of those laws are to be followed, would it be acceptable to prosecute a person under the first law for owning a single gun?
My answer would be no, because general rules should not override more specific rules, assuming each rule is equally valid. Under this situation, a person may own one gun because the law specifically says he may do so, but that person may not own other dangerous items, like maybe bombs or whatever. Each law must be given equal standing and weight as best as possible.
So the Senate has a rule that rulings of the chair may be appealed. It also has a specific rule that cloture may be invoked under certain circumstances. To use one general rule to negate (but not delete!) the more specific rule undermines the validity of written rules altogether. It means that some rules are greater than others, but I maintain that all rules have to be equally valid for there to be order and fairness.
The rules were not changed. The cloture rule has not been edited in the slightest. You can google it for yourself, it is still on the books as it has been for the last few decades. What has changed is that the Senate is now required to pretend that the text of Rule XXII no longer exists, even though we can all see that it does.
I believe we agree that the intent of the rule to overrule the chair is to prevent the presiding officer from acting in an arbitrary and capricious manner. Is that correct?
But you have to admit, the problem hasn’t been with the President of the Senate acting in a capricious manner. The presiding officer was applying the cloture rules as they existed, and as they still exist today. The difference now is that the presiding officer has been directed to act in a capricious manner that is contrary to the written rules! Don’t you see the irony in that? He’s been instructed that he must pretend that he cannot read a rule that is still on the books, even though everyone can read it for themselves. It’s a farce worthy of the Emperor’s New Clothes: everyone can see the reality, but are required to not entrust what they can see with their own eyes.
The rules do. And again, the rule is still on the books.
Let’s get back to my scenario of a moderator banning someone for insulting another poster in the Pit. Who do you think it right in that situation: a moderator who decides to act contrary to the written rules, even though the rules remain unchanged; or the person who was banned who points out that he was in complete compliance with the written rules as posted for everyone to see?
223 years, six months, five days.
What happened on that date that is relevant to this discussion? Be specific, not flippant.
Here is the basis for the rules of the Senate:
A. Senate rules cannot override the Constitution that establishes it.
B. The Constitution gives each house the power to set its own rules.
C. By common law, the majority of a quorum of a legislative body decides what that body does.
Combining A, B and C means that the Senate rules cannot prevent the majority of a quorum of the Senate from changing the rules.
The establishment of the Senate by the adoption of the US Constitution.
Surely the modern application of “I call filibuster!” is not a useful one.
Did someone try to filibuster the creation of the Senate, and they were overruled by a majority vote?
The Constitution doesn’t direct any process by which rules for either house are established. Therefore, it is up to each house to determine the method by which their rules are established.
And as I’ve said several times before, the rules of the Senate remain the same. It’s only that the President of the Senate has been directed that Rule XXII no longer means what it says, instead resulting in plain English being read to mean things that simply don’t appear, and things that appear are now required to mean nothing.
That isn’t how rules are supposed to work.
Laws are interpreted by people. Your arguments about how this should be done are talking right past my point about who is authorized to do the interpreting.
I agree with your point about interpretation (even the part I didn’t quote here) and am not arguing that the Senate Democrats were not voting insincerely in curbing the filibuster. Insincere voting on appeals from the ruling of the chair happens from time to time. There simply is no way to make absolutely certain that someone isn’t conveniently interpreting the rules to favor their cause. This is why the right to appeal is so fundamental. It ensures that the ultimate authority for interpretation rests where it belongs: with the majority.
Thanks for the correction. Yes. The interpretation of the rules only has changed. But this change, even though procedure now calls for something plainly not written into the rules, has done nothing to change the nature of the rules or the balance of power in the Senate. The majority has always had the ability to limit the filibuster. It’s just that until now they didn’t have the will to do so.
As I’ve said the rule is to prevent presiding officers from ruling an assembly instead of serving it.
I do admit this. And I see how people can see unfairness in the dissonance between the rule and the current interpretation. But this unfairness does not make the Senate any more disorderly than it was before. (I would also argue that Biden’s ruling wasn’t capricious at all. It was a deliberate, well-choreographed decision that everyone knew was coming. The Democrats warned the GOP over and over to knock off the obstructionism and threatened exactly this action if they didn’t.)
Yes, I agree with you. But what you say doesn’t negate anything I said. A majority of a quorum determines the Senate’s rules. That includes establishment, interpretation and enforcement. Whether or not they do so wisely, it’s legal.
Unless the Senate’s rules say a supermajority is required. Then it’s not legal - or at least not within the rules. But the rules aren’t laws, and the courts won’t intervene unless a constitutional mandate is involved.
Yes. A rule that requires more than a majority to change rules is unconstitutional.
A rule that requires more than a majority to do something else (that isn’t otherwise specified in the Constitution) is legal. But of course that rule can be changed by a simple majority.
Your posts are longish, Ravenman, … almost as though you were …, well, filibustering! But you seem to miss an essential point.
An umpire is not authorized to change a rule of Major League Baseball. But Major League Baseball can change the rules it creates! Surely you don’t think MLB is proscribed from changing the strike zone rule it created? (Or do we misunderstand? Do you agree that a majority can change the filibuster rule, but simply find the particular language of the Senate’s change objectionable? In that case, I withdraw. Procedural semantics don’t interest me.)
If you were correct that one Senate could dictate the rules of all future Senates, what would stop a Senate from legislating that “Votes of bald Senators will count double; no future Senate may change this rule except unanimously”?
Well, isn’t that just a ringing endorsement? “They can legally do it, therefore it is okay.” There are all sorts of laws that are stupid, shortsighted, or otherwise undesirable. For example, I used to live in Connecticut, where alcohol sales in liquor stores was cut off at 8pm. Yes, the state had the power to make that stupid law. But that really doesn’t address how bad a law it is, does it?
Once again, for like the fifth time, the Senate did not change its rules. The rule on cloture has exactly the same wording today as it did ten years ago. Instead, the Senate voted to instruct everyone to pretend that the rules say something that they quite literally do not say. That is contrary to the fundamental principles of written laws and rules, and it is profoundly stupid.