OpenLeft is running a campaign to "fix" the Senate by revising the filibuster at the opening of the next Congress. The idea is to pass different operating rules for the Senate at the commencement of the next Congress, when only 51 votes are necessary to establish the rules of procedure for the Senate during that term. I believe a similar reform outcome could be achieved if that effort does not pan out. My idea would involve having Vice President Biden act in his Constitutional capacity.
As per the Constitution, which is the supreme law of the land (and thus cannot be thwarted by the procedural resolutions of one of its creatures, the Senate), the Vice President presides over the Senate. That means it is the Vice President's duty to make rulings on order and procedure when the Senate is in session. By convention, this authority has devolved to a Senator appointed on behalf of the President Pro Tem to preside during debate, most often among the most junior members of the majority.
In much discussion and reporting on procedural issues, it is implied that the presiding officer simply enforces clearly understood rules of debate with little-or-no room for interpretation. But this is clearly false, for if it was true then members of the minority would be just as likely to be appointed to preside as members of the majority. Members of the majority always serve as presiding officers because interpretations of rules do matter.
The power to rule on order is one that has inherent authority to define process. As a nationally-elected leader who served in the Senate, Vice President Biden has the popular authority to restore the precedent of the first 150 years of our republic, and exercise his powers as Presiding Officer over the Senate to manage debate in that body. Furthermore, Vice President Biden served in the Senate for longer (1973 - 2009) than the current Parliamentarian (1977 - present), giving Mr. Biden ample clout to disagree with the advice of that office if he so chooses when ruling on motions and questions of order.
Thus, a mechanism for solving the current impasse for actually getting anything done in the Senate would be as follows.
1. During debate, a Republican Senator engages in a standard obstruction tactic, such as a hold, actual filibuster, or proposing numerous, non-germane Amendments.
2. The Vice President, as Presiding Officer, rules that Senator's hold, filibuster or spurious amendments out of order.
3. The Senator who holds the floor, and had attempted the hold (filibuster, or amendments), could then appeal the decision of the Presiding Officer to the Senate as a whole.
4. (And here's where it gets interesting.) A simple majority (51) can then vote to uphold the ruling of the Presiding Officer that the hold (filibuster or amendments) were out of order.
And with that, the filibuster would be dead for debate on that bill. A simple majority is all that is necessary to uphold the ruling of the Presiding Officer, not 60 votes. Doing this would shut down the ability of a minority from our least-populous states to thwart the popularly expressed will of the majority.
Ruling filibuster tactics as out of order would not require changing the rules of procedure in the Senate. I propose a change in the interpretation of those rules. I believe that having a Vice President who was elected by a national majority, has the Constitutionally-explicit authority to preside over the Senate, and has more experience in the Senate than the Parliamentarian, offers us a unique opportunity to fix the filibuster in the least-disruptive manner possible, through a change in interpretation rather than the rules themselves.
And for those who say that such a tactic would be "unprecedented" and violate all rules of comity and good relations for the Senate, I would note that this method is not only precedented, it is exactly how the filibuster rules were changed the last time.
In 1975 the filibuster issue was revived by post-Watergate Democrats frustrated in their efforts to enact popular reform legislation like campaign finance laws. Senator James Allen of Alabama, the most conservative Democrat in the Senate and a skillful parliamentary player, blocked them with a series of filibusters. Liberals were fed up with his delaying tactics. Senator Walter Mondale pushed a campaign to reduce the threshold from sixty-seven votes to a simple majority of fifty-one. In a parliamentary sleight of hand, the liberals broke Allen's filibuster by a majority vote, thus evading the sixty-seven-vote rule. (Senate rules say you can't change the rules without a cloture vote, but the Constitution says the Senate sets its own rules. As a practical matter, that means the majority can prevail whenever it decides to force the issue.) In 1975 the presiding officer during the debate, Vice President Rockefeller, first ruled with the liberals on a motion to declare Senator Allen out of order. When Allen appealed the "ruling of the chair" to the full Senate, the majority voted him down. Nervous Senate leaders, aware they were losing the precedent, offered a compromise. Henceforth, the cloture rule would require only sixty votes to stop a filibuster. - The NationVice President Biden was a member of the Senate in 1975 when this happened. The current Parliamentarian was not. Clearly, the Vice President has more experience in such matters than the current Parliamentarian and can render his own judgment on the matter.
Of course, there may be good reasons why this would not work, and I'm sure David Waldman will be able to correct me if that is the case.
4 comments:
Yes, but did you say the same thing when Democrats were filibustering Bush judicial nominees?
I thought not.
Hypocrite.
Neither did I write anything supporting the filibustering of judicial nominees, sir. In fact, President Bush's nominees got votes or had their nominations withdrawn.
Just from the standpoint of facts, this blog wasn't even started until August 2007, so my window for writing anything about President Bush's judicial nominees was relatively small.
And all the posts I have written about procedure have been generally against holds and obstruction tactics, regardless of their partisan author. (See, for example, http://leesburgtomorrow.blogspot.com/2007/11/erosion-of-hold.html)
Very well stated. I am one who is not in favor of changing Rule XXII to reflect a simple majority, but parliamentary procedures, applied correctly by those who understand them, are perfectly legal.
I would also prefer the Senate simply go back to making the Senator speak to filibuster rather than just threaten.
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