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May 16, 2005

Frist's nuclear option is simply illegal

Not being familiar with the rules of the Senate, I had assumed from all this talk that changing the rules was within Frist's power to do. It's not. You can only change the rules with a two-thirds majority vote for cloture on the motion to change the rules! The Senate rules are very clear on this point. Kudos to P6.

http://rules.senate.gov/senaterules/rule22.htm

"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 vote 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.

Is Frist proposing that any Vice President can simply re-write the rules of order as he pleases? Any motion to change the rules is still a motion.

http://rules.senate.gov/senaterules/rule05.htm

1. No motion to suspend, modify, or amend any rule, or any part thereof, shall be in order, except on one day's notice in writing, specifying precisely the rule or part proposed to be suspended, modified, or amended, and the purpose thereof. Any rule may be suspended without notice by the unanimous consent of the Senate, except as otherwise provided by the rules.

The Constitution itself leaves it up to the Senate:

Article I. Section 5.

Clause 2: Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

Conservatives like to cite United States vs Ballin from 1892 which says in part:

As appears from the journal, at the time this bill passed the house there was present a majority, a quorum, and the house was authorized to transact any and all business. It was in a condition to act on the bill if it desired. The other branch of the question is whether, a quorum being present, the bill received a sufficient number of votes; and here the general rule of all parliamentary bodies is that, when a quorum is present, the act of a majority of the quorum is the act of the body. This has been the rule for all time, except so far as in any given case the terms of the organic act under which the body is assembled have prescribed specific limitations. As, for instance, in those states where the constitution provides that a majority of all the members elected to either house shall be necessary for the passage of any bill. No such limitation is found in the federal constitution, and therefore the general law of such bodies obtains.

Based on that, Sean Rushton from National Review says:

So the restoration of Senate rules and traditions for judicial nominees enjoys both historical support and Senate precedent. But the constitutional power of a majority of Senators to strengthen, improve, and reform Senate rules and procedures is also expressly stated in the Constitution, and was unanimously endorsed by the U.S. Supreme Court in United States v. Ballin.

In Ballin, the Court unanimously held that unless the Constitution expressly provides for a supermajority vote, the constitutional rule is majority vote. For example, the Constitution clearly states that each house of Congress “may determine the Rules of its Proceedings” (Article I, Section 5).

There is no way in hell Sean's arguent would ever hold up in court.

Rushton also says the following:

The vote on the Harkin proposal was not the only effort to reform Senate rules. It is important to note that in 1975 the Senate voted three times in support of the power of a Senate majority under Article I of the Constitution to change the rules. Those precedents forced the Senate to act and led to a major change in the cloture rule.

Really? Let's go back to 1975. The motions Sean is referring to are the ones that established the current rules and specifically require the 2/3 majority for changing the rules, not a simple majority! Search on "cloture" in 1975 over at Thomas to see for yourself. Notice how the changes were passed by a 2/3 majority, too! Sean just made the case for me.

S.RES.93

SPONSOR: Sen Byrd (W. Va.) (introduced 2/28/75)

Revises rule XXII of the standing Rules of the Senate to close debate on any measure, motion, or other pending matter when three-fifth of all Senators vote affirmatively to invoke cloture (Rules presently require two-thirds vote of those present and voting). Provides that a motion to close debate on any measure or motion to amend the Rules of the Senate shall require a two-thirds vote.

Bruce Ackerman sums it all up in today's Financial Times, as reprinted in The Washington Note:

Their prime target is Bill Frist, the Senate majority leader. As a leading candidate for the presidency, Mr Frist is especially eager to pacify his religious constituency. But the Senate rules do not make this easy. A special provision requires "two-thirds of the senators present and voting" to end debate on rule changes and Mr Frist will fall far short of the 67 senators this requires. His predicament is exacerbated by another provision stipulating that no rule may be changed except as "provided in these rules".

Faced with this unambiguous command, the Republican leadership has manufactured a constitutional objection to the rules themselves. The constitution says each house "may determine the rules of its proceedings", and for two centuries the Senate has exercised this power in a distinctive fashion. As only one-third of its members enter with every election, the Senate has viewed itself as a continuing body. Unless there is a challenge at its opening session, the Senate continues to operate under its established rules.

Mr Frist is urging his fellow Republicans to repudiate this understanding. He claims that the Senate has the constitutional right to be like the House of Representatives, which approves its rules each session by simple majority vote. Conservatives do not often insist on repudiating a practice dating from the founding fathers. In any event, Mr Frist's analogy to the House does not get him where he wants to go. Once the House organises itself at its opening session, it must follow its own rules if it wants to change them later. In contrast, Mr Frist claims that a Senate majority may simply repudiate the rules at any time. This raises the question, according to the nonpartisan Congressional Reference Service, of wheth-er the Senate will become "a chaotic environment in which a temporary majority could change precedents any time it wanted to". The constitution gives the Senate the power to "determine its rules", but nothing gives it the authority to ignore them.

Here is a thorough debunking of the recent idea conservatives have been floating that rule changes by a simple majority is "The Byrd Option" - which it clearly is not.

Posted by Mike at May 16, 2005 01:47 PM

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