ConfirmThem

By AndrewHyman Posted in Senate Rules — Comments () / Email this page » / Leave a comment »

Earlier today, Wade Henderson and Stephen Moore had an op/ed in the Washington Post titled "Don't Alter the Filibuster." They wrote:

It is clear to us that it takes a two-thirds majority (67 votes) to change the Senate's standing rules. The filibuster will become effectively emasculated over time if a precedent is set that a simple majority of the Senate can override the 60-vote rule whenever the majority feels frustrated by the actions of 41 senators. As such, this rule change could eventually apply to all legislation and thereby be used as a tool to create a Senate majority with absolute power.

In response, I would like to point out that neither liberal scholars, nor conservative scholars, nor any other scholars who have actually read the Senate Rules, believe that it takes 67 votes to change those rules. There is simply no disputing the fact that, if there are 51 Senators present and voting, then only 34 (i.e. 2/3 of Senators voting) are needed to end debate on a rule change according to Rule 22, and subsequently only 26 Senators (i.e. more than 1/2 of Senators present) are needed in order to go ahead and change the rules. So, Mr. Henderson and Mr. Moore are either mistaken or are oversimplifying the Senate rules.

Henderson and Moore may be referring to the legitimate controversy about whether --- and under what circumstances --- a simple majority of the Senate can override the 2/3 rule, by invoking rulemaking powers directly from Article I, Section 5 of the Constitution. Everyone agrees that the action by a simple majority to invoke their constitutional rulemaking power is more appropriate if notice is given at the beginning of the congressional session. Indeed, on the opening day of the present congressional session, Sen. Frist did give appropriate notice, when he said this:

Right now, we cannot be certain judicial filibusters will cease. So I reserve the right to propose changes to Senate rule XXII, and do not acquiesce to carrying over all the rules from the last Congress.

No Senator expressed non-acquiescence to Frist's statement, or sought to prevent him from reserving the right to propose changes. Democratic Senator Ron Wyden spoke immediately after Senator Frist, and praised Sen. Frist for his interest in health care. No Senator on that opening day challenged Senator Frist's statement quoted above. Even if Dr. Frist had been challenged, it is doubtful that it would have made any difference. Senator Mondale made a similar statement in 1975, and there was a unanimous consent agreement to "nail down doubly" (as Senator Mansfield put it) what Mondale had said, but still Senator Frist nailed the same thing down, albeit not doubly.

There is ample precedent for the GOP's present proposal to change the Senate rules. None of that ample precedent has thus far led to a ban on filibustering legislation, and so it's very speculative to imagine that it will lead to such a ban in the future. Even if that were to happen, it would not "create a Senate majority with absolute power" as Henderson and Moore contend. There would remain all of the Constitution's limitations on the Senate's power, and those limitations are far from trivial. Also keep this in mind: if any Senator seeks to open a new session by reserving a right to change the rule for legislative filibusters, there will surely be an immediate response to protect that rule, because it is a popular rule, and one which has been frequently used for many years.