Tuesday, January 4, 2011
As the 112th Congress prepares to convene tomorrow, there's talk once again of filibuster reform in the Senate.
In recent practice, the Senate rules allow a single Senator to force a 60-vote majority to end debate on any matter. Senate Rule XXII reads:
at any time a motion signed by sixteen Senators, to bring to a close the debate upon any measure, motion, other matter pending before the Senate, or the unfinished business, is presented to the Senate, the Presiding Officer . . . shall . . . submit to the Senate by a yea-and-nay vote the question:
"Is it the sense of the Senate that the debate shall be brought to a close?" And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn--except on a measure or motion to amend the Senate rules, in which case the necessary affirmative votes shall be two-thirds of the Senators present and voting--then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.
Democrats argue that Republicans have abused the rule and held up all manner of Senate business, without transparency and without cost to the objecting Senator. Indeed, filibusters have skyrocketed in the last two Congresses, at least temporarily stopping Senate action on the matter at issue and slowing Senate action on all other business. Professor Josh Chavetz (Cornell) in his recently posted piece, The Unconstitutionality of the Filibuster, goes so far as to argue that the practice--allowing a single Senator to force a 60-vote majority to end debate on anything--violates the structure of the Constitution.
Senator Jeff Merkley gave a sense of reform proposals on the table in his November 16 Thoughts on the Reform of Senate Procedures. Senator Merkley's sensible and practical Thoughts retain the filibuster, but limit its use, require transparency in its use, and impose costs (in time and effort) on those who filibuster.
The problem is that Senate Rule XXII itself requires a two-thirds majority vote to change the Senate rules (including the cloture rule). (The late Senator Kennedy called this double-bind to the cloture rule a "Catch-XXII.")
The work-around is simple, though, and widely accepted. As we explained here, the "constitutional option" would allow a change to Senate rules on the first day of a new Session. Here's how it works. Article I, Section 5 of the Constitution allows each House to determine its own rules (by a simple majority). (Senate Rule V, which says that the Senate rules--including Rule XXII--"shall continue from one Congress to the next Congress unless they are changed as provided in these rules" (and thus taking us back to where we started) itself violates Article I, Section 5 in that it binds the new Senate to old rules and prevents the new Senate from determining its own rules.) Thus at the beginning of each Congress--before the Senate has had a change to (re)enact its rules--general parliamentary law, including the simple majority rule, applies. Under general parliamentary law, the new Senate can enact its own new rules by a simple majority.