No (or less) use of the filibuster means better Democracy

[Falchion]

@YogSosoth

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?

Because (as I understand it) there was no vote to change the rules.

What they did was challenge the presiding officer’s ruling that 60 votes were required, which is then appealed to the Senate for a majority vote (where, in effect, they voted that the presiding officer was wrong that 60 votes were needed).

The rule is still 60 votes. But when the presiding officer rules that 60 votes haven’t been met, you can overrule him with 51 votes (at least, this is my understanding of what happened).

[Pleonast]

@Ravenman

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.

A plain reading of the Constitution gives a simple majority of a quorum of the Senate sole power to determine the Senate’s rules. A plain reading of the Constitution does allow any other part of the government the power to gainsay the Senate’s determination of its rules.

Of course, the Supreme Court could take a non-plain interpretation of Article I and intervene, but I don’t think any Senator is going to the courts. So the Senate’s determination of its own rules is going to stand.

[Ravenman]

@Pleonast

A plain reading of the Constitution gives a simple majority of a quorum of the Senate sole power to determine the Senate’s rules. A plain reading of the Constitution does allow any other part of the government the power to gainsay the Senate’s determination of its rules.

Of course, the Supreme Court could take a non-plain interpretation of Article I and intervene, but I don’t think any Senator is going to the courts. So the Senate’s determination of its own rules is going to stand.

I’m referring to your post in which you said it “isn’t legally relevant” that interpretations of rules and laws remain consistent with the text of that law or rule. This point of yours was raised in defense of an institution deciding that black is actually white, and you said such a judgment is legally acceptable.

Do you really need a cite that your view does not conform to the single most basic principle of interpreting law?

[Pleonast]

@Ravenman

I’m referring to your post in which you said it “isn’t legally relevant” that interpretations of rules and laws remain consistent with the text of that law or rule. This point of yours was raised in defense of an institution deciding that black is actually white, and you said such a judgment is legally acceptable.

Do you really need a cite that your view does not conform to the single most basic principle of interpreting law?

Sure, give me some cites showing that a house of Congress can’t determine its own rules as it wishes, or that the Supreme Court can’t interpret the Constitution as it wishes.

[Ravenman]

U.S. Supreme Court: “We begin with the familiar canon of statutory construction that the starting point for interpreting a statute is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.:” Consumer Product Safety Commission et al. v. GTE Sylvania, Inc. et al.,447 U.S. 102 (1980). “*n interpreting a statute a court should always turn to one cardinal canon before all others. . . .[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there.” Connecticut Nat’l Bank v. Germain, 112 S. Ct. 1146, 1149 (1992). Indeed, “when the words of a statute are unambiguous, then, this first canon is also the last: ‘judicial inquiry is complete.’” 503 U.S. 249, 254.

Supreme Court of Alaska: “In assessing statutory language, unless words have acquired a peculiar meaning, by virtue of statutory definition or judicial construction, they are to be construed in accordance with their common usage.” Muller v. BP Exploration (Alaska) Inc., 923 P.2d 783, 787-88 (Alaska 1996);

Arkansas Supreme Court: “When reviewing issues of statutory interpretation, we keep in mind that the first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. When the language of a statute is plain and unambiguous, there is no need to resort to rules of statutory construction. A statute is ambiguous only where it is open to two or more constructions, or where it is of such obscure or doubtful meaning that reasonable minds might disagree or be uncertain as to its meaning. When a statute is clear, however, it is given its plain meaning, and this court will not search for legislative intent; rather, that intent must be gathered from the plain meaning of the language used. This court is very hesitant to interpret a legislative act in a manner contrary to its express language, unless it is clear that a drafting error or omission has circumvented legislative intent.” Farrell v. Farrell, 365 Ark. 465, 231 S.W.3d 619. (2006)

Supreme Court of New Mexico: “The principal command of statutory construction is that the court should determine and effectuate the intent of the legislature using the plain language of the statute as the primary indicator of legislative intent.” State v. Ogden, 118 N.M. 234, 242, 880 P.2d 845, 853 (1994) “The words of a statute . . . should be given their ordinary meaning, absent clear and express legislative intention to the contrary,” as long as the ordinary meaning does “not render the statute’s application absurd, unreasonable, or unjust.” State v. Rowell, 121 N.M. 111, 114, 908 P.2d 1379, 1382 (1995) When the meaning of a statute is unclear or ambiguous, we have recognized that it is “the high duty and responsibility of the judicial branch of government to facilitate and promote the legislature’s accomplishment of its purpose.” State ex rel. Helman v. Gallegos, 117 N.M. 346, 353, 871 P.2d 1352, 1359 (1994). - New Mexico v. Juan, 2010-NMSC-041, August 9, 2010

U.S. Court of Appeals for the Second Circuit: “As in all statutory construction cases, we begin with the language of the statute. The first step is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.” Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002) “nless otherwise defined, statutory words will be interpreted as taking their ordinary, contemporary, common meaning.” United States v. Piervinanzi, 23 F.3d 670, 677 (2d Cir. 1994).

It is the most fundamental assumption in law that words mean things. Once a government can redefine the plain meaning of rules to suit whatever purpose it seeks, the rule of law has failed.

[Pleonast]

And none of that is applicable for a house of Congress in determining its own rules. Nor is it binding on the Supreme Court.

[Ravenman]

How can you argue that common law applies to the Supreme Court and the Senate but this principle that words have meaning does not?

[YogSothoth]

Ravenman, Falchion, thanks for the explanations. I had to read that again a few times to make sense of it but it if is as clear as it appears, then wow, that’s some nice gauntlet throwing by Reid. It looks like that Reid did bend the rules a bit (let’s be honest, even though I support it, I know the rules weren’t designed to do that), but everything he did was perfectly legal.

I can see now why it rankles some people. However, I also think that what the GOP does in threatening to filibuster (without actually doing it) is also a dirty underhanded trick. Can we agree that both are legal in the sense that nobody’s breaking laws or violating the Constitution, but are using an existing rule in their favor to circumvent the normal and previously-agreed upon usage of the rules to favor their own side.

With that explanation, I don’t think what Reid did is worse than what the GOP is doing with regards to these fake filibusters, and in this case, I do think that two wrongs make a right because you cannot let one party bend the rules in their favor and expect the other party to just acquiesce. Reid did a bad thing, but only after the GOP has been doing bad things for years. He wasn’t going to let the Dems keep losing battle after battle and have the majority’s agenda blocked by a virulent minority. Surely, Ravenman, you can understand why he did it, and why he had to do it? If I were you, I wouldn’t lay the blame mostly on Reid (by that I mean argue exclusively against Reid), I would argue that to fix the Senate, to go back to a more Constitutional standard, you argue against the GOP and their fake filibuster. That’s who deserves your ire

[Falchion]

@YogSosoth

Ravenman, Falchion, thanks for the explanations. I had to read that again a few times to make sense of it but it if is as clear as it appears, then wow, that’s some nice gauntlet throwing by Reid. It looks like that Reid did bend the rules a bit (let’s be honest, even though I support it, I know the rules weren’t designed to do that), but everything he did was perfectly legal.

I can see now why it rankles some people. However, I also think that what the GOP does in threatening to filibuster (without actually doing it) is also a dirty underhanded trick. Can we agree that both are legal in the sense that nobody’s breaking laws or violating the Constitution, but are using an existing rule in their favor to circumvent the normal and previously-agreed upon usage of the rules to favor their own side.

With that explanation, I don’t think what Reid did is worse than what the GOP is doing with regards to these fake filibusters, and in this case, I do think that two wrongs make a right because you cannot let one party bend the rules in their favor and expect the other party to just acquiesce. Reid did a bad thing, but only after the GOP has been doing bad things for years. He wasn’t going to let the Dems keep losing battle after battle and have the majority’s agenda blocked by a virulent minority. Surely, Ravenman, you can understand why he did it, and why he had to do it? If I were you, I wouldn’t lay the blame mostly on Reid (by that I mean argue exclusively against Reid), I would argue that to fix the Senate, to go back to a more Constitutional standard, you argue against the GOP and their fake filibuster. That’s who deserves your ire

The debate about who is to “blame” for the use (and misuse) of the filibuster doesn’t really interest me, so I won’t respond to that portion of it.

But I will say that certainly Reid’s action was “legal,” and since it has been floating around since the Bush Administration, it’s not like it should have taken anyone by surprise that it could be done. So it doesn’t really outrage me. But I understand how it looks rather questionable and offensive.

Still, I don’t know what you mean by “fake filibuster.” I guess it’s because we imagine filibusters in the Robert Byrd or Strom Thurmond monlogues against the Civil Rights Act (and that has a certain aesthetic appeal). But “filibustering” by opposing a vote to end debate doesn’t strike me as “fake” or a “misuse” of the rules (unless we mean that they shouldn’t have filibustered what they did, but that’s not a “rules” issue). I guess I certainly don’t see how it is a “dirty underhanded trick” (when used by either party).

[Pleonast]

@Ravenman

How can you argue that common law applies to the Supreme Court and the Senate but this principle that words have meaning does not?

I’m applying both. The principle that words mean what they say informs us that the Senate has absolute control over determining its own rules. Because that’s what the Constitution says.

I think you want to put some reasonable limits on that. But that means going beyond the plain words of the Constitution. And it’s possible that a Supreme Court could rule that a house of Congress is required to use reasonable interpretations of its rules. (Because the Supreme Court has the final say over interpretation of the Constitution–meaning it doesn’t have to follow the plain meanings of the Constitution’s words.) But that hasn’t happened. And, using the principle that the Constitution means what it says and says what it means: only the Senate has the power to adopt, change, interpret, enforce, etc its own rules.

Bottom line: it’s up to the Senate to interpret its rules as they’re plainly written, because the plainly written language of the Constitution gives only them that power.

[Ravenman]

@Pleonast

Bottom line: it’s up to the Senate to interpret its rules as they’re plainly written, because the plainly written language of the Constitution gives only them that power.

You can’t have it both ways: you said that the Supreme Court could ignore the text of the First Amendment, and now you’re arguing that the plain language reading does control – except that you’re ascribing the rulemaking power under the Constitution to encompass a procedural dimension that does not exist in the text!

The Constitution simply says the Senate shall set its own rules. The Senate set its rules by setting forth the procedure on how to change its rules. The Senate recently set a precedent to ignore the plain text of those rules. The Constitution doesn’t have a provision allowing the Senate to violate its own rules, as evidenced by the conjecture you had to make in your “A B C” reasoning scheme by invoking common law, as opposed to actual text.

Your argument would be stronger if you would pick a side of the plain reading issue and stick with it.

[Pleonast]

The Constitution trumps common law. A plain reading is the default one, until an entity with the power to interpret says a different reading shall be used.

If the Senate does not have the power to interpret its own rules, then it does not have the the power to determine its proceedings, which is explicitly given to it by the Constitution. A Senate rule has its plain meaning until the Senate determines it another reading shall be used. And that is exactly what the Senate has done.

The Constitution uses its plain reading by default. But the Supreme Court has the power to interpret the Constitution. Which means it gets to decide what reading to use, and once it says how a clause is to be interpreted, then that’s how it is.

[drewtwo99]

So Reid used a rule about overriding the presiding officer’s ruling on a rule. The rule that Reid used to overrule the ruling about 60 votes was a rule that the senate set for itself. If they wanted the rule to be that 67 senators are required to overrule the presiding officer’s rulings, then they could have made it that way. But they didn’t, they only required a simple majority. The rules were all followed to a T, as set by the senate themselves.

So nobody broke any rules. Everybody followed the rules that were written and were able to be used at any time.

If you want to avoid this in the future, make it so that the presiding officer cannot be overruled at all, or, only by a 2/3’s majority or unanimous consent, or something.

[YogSothoth]

@Falchion

Still, I don’t know what you mean by “fake filibuster.” I guess it’s because we imagine filibusters in the Robert Byrd or Strom Thurmond monlogues against the Civil Rights Act (and that has a certain aesthetic appeal). But “filibustering” by opposing a vote to end debate doesn’t strike me as “fake” or a “misuse” of the rules (unless we mean that they shouldn’t have filibustered what they did, but that’s not a “rules” issue). I guess I certainly don’t see how it is a “dirty underhanded trick” (when used by either party).

I say fake because its not an actual filibuster, just the threat of one, with none of the repercussions of what standing and talking would entail. Partly I’m upset that Reid doesn’t just call their bluff and force them to send up someone to talk for hours, but I understand that he doesn’t want to delay Senate business for hours while some idiot rambles on. Yet that’s legal to do. Same as this filibuster reform. Both are upsetting and depending on where you fall on the political spectrum, I think people should sympathize with one or the other.

As a Democrat, I think both suck, but I am happy Reid did what he did in response to years of GOP intransigence. I would not like him to do it in a vacuum, but only as a response to the GOP in order to move along Senate business. So in this case, two wrongs does make a right because it corrects the first wrong

[2sense]

@Ravenman

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?

I poked around but didn’t find any. Even when I know an appeal must have occured. In October '87 when Jim Wright adjourned the House for the day and immediately reopened it claiming it was the next day in order to hold another vote on a bill that failed earlier in the day. It doesn’t quite fit our situation and even there I can find descriptions of the event but not of the inevitable appeal. I was never very good at google-fu and that was before Google became so “helpful” in ignoring the exact text I’m searching for.

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.

Yes, we have already established your belief that something unfair occured.
What we are working on now is helping you understand the appeal process as a natural feature of parliamentary procedure.

I already cited one example from less than two months ago where the House changed its rules specifically to obtain a temporary political advantage.

The House is not the Senate. Individual Representatives are more numerous and less influential and House procedure reflects this. The rights of minority in the House are often reduced to nothing more than 5 minutes of debate to enter their objections into the record and a single motion to recommit without instructions as the only policy option. The House disposed of their version of the filibuster (the “disappearing quorum”) back in 1890.

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.

The potential to alter procedure by majority vote has always existed in the Senate. It still exists. Nothing has changed the balance of power. A future majority could use this ability yes but how likely is such a majority? Senate rules were made by and for Senators. They basically already have the rules they want (when in the majority). Given the evidence of how much pressure had to build up in order for this Senate Majority to restrict the filibuster the allegiance to the status quo is quite strong. Sure the Senate could become a wild freewheeling capriciously led body. Senators also could turn to bake sales instead of their current fund raising tactics. Neither is likely in my opinion.

[Ravenman]

@2sense

Yes, we have already established your belief that something unfair occured.
What we are working on now is helping you understand the appeal process as a natural feature of parliamentary procedure.

As I was doing my own reserach, I found that Demeter’s Manual of Parliamentary Law and Procedure (basically, another version of Robert’s Rules of Order) contains limitations on when an appeal of the decision of the chair may be made. Those procedures mean that an appeal based on several factors is immediately ruled out of order. Those factors are: 1) known facts, 2) evident truths, 3) established rules, and 4) operative laws. Appeals may only be made on items of: 1) personal judgment, 2) opinion, or 3) discretion.

I realize those rules do not apply to the Senate, but I think they indicate that other legislatures may not permit an appeal to be used in the way the Senate used it.

The potential to alter procedure by majority vote has always existed in the Senate. It still exists. Nothing has changed the balance of power.

It used to be incredibly rare for a filibuster to occur on a cabinet appointment of the President. It basically could always have been done, but the fact that it was done made it more common and acceptable to do so.

Just like this situation: whether or not it could have been done in the past, it was not. Now it has been done, and my concern is that the historical restraint has now been thrown out the window, just as restraint on the filibuster has also been nearly eliminated.

[YogSothoth]

@Ravenman

Just like this situation: whether or not it could have been done in the past, it was not. Now it has been done, and my concern is that the historical restraint has now been thrown out the window, just as restraint on the filibuster has also been nearly eliminated.

As a Democrat, this is the only part that concerns me. Not the Reid filibuster maneuver, but the restraint on filibusters by the minority party in general. Given your distaste of what Reid did, how do you think he should have handled the filibusters by the GOP, who have admitted to using it not as an honest objection towards an extreme bill or nominee but as a procedure to block the opposing party from completing its business, if you take out this filibuster reform? It makes me mad that the GOP in the Senate and conservative pundits basically think that the Dems should sit back and take it or accept the new normal of a 60 vote barrier on anything they want to move forward. To me, that’s much worse than using filibuster reform to punish the GOP and hope they learn their lesson

[Ravenman]

I’m very curious if anyone ever suggested doing a filibuster reform that would take effect some years in the future. Like, “As of January 1, 2017, the cloture rule shall be amended to require votes on [y] matters.” I think the major problem with the filibuster reforms that have been proposed is that the majority will always want to cut back on filibusters, and the minority will always want to keep them. I wonder if someone picked a date in the future, at which point nobody will know if their party will be the majority or the minority, and see if senators had a different reaction to that.

[2sense]

@Ravenman

As I was doing my own reserach, I found that Demeter’s Manual of Parliamentary Law and Procedure (basically, another version of Robert’s Rules of Order) contains limitations on when an appeal of the decision of the chair may be made. Those procedures mean that an appeal based on several factors is immediately ruled out of order. Those factors are: 1) known facts, 2) evident truths, 3) established rules, and 4) operative laws. Appeals may only be made on items of: 1) personal judgment, 2) opinion, or 3) discretion.

I’m not familiar with that system but the obvious question here is: who decides if any of these limits pertain? Presumably the chair and presumably that ruling may be appealed from. There are limitations on appeals in RROR and in the House Manuel as well but they aren’t designed to withstand the determined pressure of a majority to have its way because if you allow individuals to deny the will of the majority then it is those individuals which control the assembly. And I can tell you from my own experience serving as Speaker of a simulated online US House of Representatives that when you deny people the right to vote on your rulings it doesn’t make them love you.

It used to be incredibly rare for a filibuster to occur on a cabinet appointment of the President. It basically could always have been done, but the fact that it was done made it more common and acceptable to do so.

Just like this situation: whether or not it could have been done in the past, it was not. Now it has been done, and my concern is that the historical restraint has now been thrown out the window, just as restraint on the filibuster has also been nearly eliminated.

I don’t quibble with this logic. It makes sense in the abstract. I’m saying that by looking closely at the situation in the Senate we can see that this isn’t likely. The Senate Majority did not move willy nilly to gut the filibuster. As the use of the filibuster increased there was more pressure to limit it. It took a long time but when finally action was taken we can see that it was carefully limited to only presidential appointments and even then not all of them. I would also point out the knowledge of the existance of the “nuclear option” likely has restrained the behavior of the minority in the past. Even before “nuclear” was a word Senators knew they knew that it wouldn’t do for the minority to push too hard.

The Senate has a tradition of comity. Senators like this tradition because it empowers them (and it’s nice to have a nice place to work). Partisanship works against this but the Senate has resisted emulating the faceless efficiency of the House. I expect this to continue.