Filibuster Compromise.  Unhappy Senators.  Supreme Court Case Looming?
January 27, 2011
The US Senate today approved the compromise crafted by Sen. Majority Leader Harry Reid and Senate Minority leader Mitch McConnell.  Key pieces of that compromise, including eliminating "secret holds" and a resolution that prevents amendments that are on record for 72 hours from being read on the Senate floor passed by wide margins.

The trio of resolutions offered Tuesday by Senators seeking reform met a different fate.The five step Sen. Resolution 10 from Sen. Tom Udall, D-NM, went down to defeat with a vote of 44-51.  The resolution offered by Sen. Jeff Merkley, D-OR, which required senators to stand and debate when filibustering, went down by a margin of 46-49.  Sen. Resolution 8 from Sen Tom Harkin, which provided that over a course of eight days the number of votes required for passage would gradually go from 60 to 51, went down by a margin of 12-84.  

While all three concede today's vote is a step in the right direction, all vow to continue fighting.  "I believe the Senate is not operating Constitutionally," said Harkin.  "We must look to the courts for relief in this matter." 
Harkin specifically cited the need to change Rule V, which states that all Senate rules approved by a previous Senate are "continuing" and may only be changed by a two thirds majority vote.

Bob Edgar, President of the public interest group Common Cause, says "our organization agrees entirely with Sen. Harkin's comments.  The Senate has made it clear it cannot fix itself."

Could 51 Votes Trigger the Real Constitutional Option?

January 27, 2011

Senate Majority Leader Harry Reid, D-NV today announced a compromise struck with Senate Minority Leader Mitch McConnell, R-KY over Senate Rules changes on filibusters and delaying tactics. 

"The changes we'll agree to here today are
first, eliminating secret holds, second, by reducing by about one-third the number of executive nominations that are subject to delays, third, ending the time consuming practice of reading aloud the amendments that have been publicly available for three days, fourth, limiting the use of filibusters on motions to proceed, and fifth, filling the amendment tree only when necessary."  

Reid said he has an agreement with McConnell that Reid will "not force a majority vote to fundamentally change the Senate, that is the so-called Constitutional option," and that McConnell won't do so in the future.  McConnell said he and Reid are working on a colliquy that will reflect the entirety of their understanding.   However,  this so-called "gentlemen's agreement" does not have the full effect of a rules change.

Sen. Tom Udall, D-NM, applauded much of the compromise, but said, "I strongly disagree with the idea that the two leaders are taking off the table us using our Constitutional Rights."  He said the agreement struck was good for the two leaders, but Constitutionally does not apply to the other 98 Senators.

The resolutions introduced Tuesday
by Sens Udall, Harkin, D-IA, and Merkley, D-OR, will be debated and come to a floor vote.  Sources in Washington say that they will be viewed as amendments and will require 67 votes to pass.  Sen. Udall said on the floor today, after the compromise was announced, that he is still calling for 51 votes to pass those resolutions. 

Success in obtaining 51 votes for a rules change could trigger a Constitutional showdown. 

"I cannot surrender the rights under the Constitution to use the majority to continue to pursue rules to make our broken Senate work better," said Merkley.

A vote is scheduled for later today. 

Filibuster Catch 22 

January 25, 2011

On this, the official first day of the U.S. Senate, a trio of Democratic Senators tried to change the rules of the Senate to quell the rising tide of filibusters which have altered the way the Senate traditionally does the Peoples' business.  Senate rules may only be changed at the beginning of a new Congress, and theirs was an effort to change three rules by 51 votes, not 67, under unanimous consent.

Sen. Tom Harkin, D-IA, offered Sen. Resolution 8, which would amend the standing rules of the Senate to invoke cloture (to bring a vote to the floor) with less than 3/5 majority.  Sen. Tom Udall, D-NM offered Sen Resolution 10, which: 1) cut to two hours debate on motions to proceed, 2) eliminates secret holds, 3) gives both parties the right to offer amendments, 4) requires Senators to stand and debate when filibustering, and 5) reduces the time of debate on nominations to two hours.  Sen. Jeff Merkley, D- OR, offered Sen Resolution 21, his stand alone bill to require actual Senate debate when filibustering.  

Udall noted there was only an average of one filibuster per year from 1900 to 1970;  in the most recent Senate, that number rose to 68.  "It's become a means where the minority can stop us from debating anything," Merkley said.  Harkin echoed that sentiment saying, "41 Senators have veto power."

The three waited patiently and called for a member – any member - of the Republican minority to appear on the floor as a courtesy to formally object to the resolutions.  Sen. Lamar Alexander, R-TN, ranking member of the Rules Committee finally arrived, and objected to each, saying they would be willing to consider the rule changes with 67 votes, as provided by Rule XXII. 
So let's see:  41 Senators can currently prevent any legislation from reaching the floor for a vote, and 34 Senators can prevent that rule from ever being changed.

In short, the Senate rules are victims of a Catch-22 put into place in 1959 by then Senate Majority Leader Lyndon Johnson.  Rule V was then amended to say the rules of the Senate were "continuing" and would only be amended as provided by rule XXII, which requires a 2/3 majority.  This effectively made those rules binding on future generations, and makes changing rules concerning filibusters a practical impossibillity.

There was much discussion as to the Constitutionality of the these rules;  Harkin noted that the Constitution provides that "each body can adopt its rules," and that it does not specify a supermajority to do so.  The Constitution does specify just five instances where supermajorities are required;  they include approval of treaties and impeachment.   All other business, Harkin says, is to be approved by a simple majority of 51 votes.  Harkin said that Senators take an oath to uphold the Constitution;  he questioned whether the current rules concerning filibusters "take away my Constitutional right to adequately represent my constituents."

More discussion of this topic is expected to continue throughout the week.

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