Senate Democrats seem poised to attempt filibuster reform next week. Why next week? Will 53 votes be enough? There are more questions than answers. It’s the Senate, after all. (More)

The Filibuster, Part III – The Devil in the Details

This week Morning Feature considers proposals to reform the Senate filibuster rule, which all 53 returning Senate Democrats pledged to attempt next week when the 112th Congress opens. Wednesday we looked at the how the filibuster was created. Yesterday we examined the reform proposals that have been offered. Today we conclude with the procedural hurdles, and why even 53 votes does not guarantee success.

As Brian Beutler wrote at TPM yesterday, Senators Tom Udall (D-NM) and Jeff Merkley (D-OR) have worked hard to build a consensus among Senate Democrats for filibuster reform. We discussed Sen. Merkley’s proposal yesterday. He would require the dissent to keep number of members, starting at 5 and increasing to 20, on the Senate floor to sustain a filibuster. If there are not enough dissenting members present, the Senate can move on with a simple majority vote. If there are enough dissenting members present, cloture would still require 60 votes. While I favor the proposal offered by Sen. Tom Harkin (D-IA) – reducing the number of votes needed for cloture at each attempt, until a simple 51-vote majority is sufficient on the fourth attempt – Sen. Merkley’s rule would at least shift some of the burden of sustaining a filibuster to the dissenting minority. But Majority Leader Harry Reid (D-NV), Minority Leader Mitch McConnell (R-KY), and Sens. Chuck Schumer (D-NY) and Lamar Alexander (R-TN) are reportedly discussing other filibuster reform options.

Why don’t Democrats just go it alone, by settling on a new filibuster rule and pass it with their 53 votes when the 112th Congress convenes on January 5th, 2011? In fact, what’s the big deal with January 5th, 2011?

Maybe nothing. And that’s the problem.

A “continuing body?”

The House of Representatives must vote to renew or change their rules at the start of each new Congress. Each House consists of members elected the previous November, even if most were incumbents. Thus each House is a new and unique body, and they are not bound by the previous rules. In practice, House members usually renew the old rules without change unless there is some compelling reason to do otherwise. But they could make up entirely new rules for each new House.

But the Senate is different. Senators serve six-year terms and one-third of its members are elected in each cycle. The other two-thirds were already members, no matter what happened last November. Thus, Senate precedent held that they were a “continuing body,” whose rules carried forward from one Congress to the next. In 1959, amidst another debate on filibuster reform, the “continuing body” tradition was formally adopted into Senate Rule V:

2. The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.

On its face, Rule V would seem to end any prospect of filibuster reform, as Rule XXII requires “two-thirds of the Senators present and voting” to end debate and force a vote on a change to the Senate Rules. As all 100 members will probably be present when the Senate convenes next week, under Rules V and XXII filibuster reform would require 67 votes … not a simple 51-vote majority, nor even the 60-vote supermajority usually needed for cloture.

As Senate Republicans have made an unprecedented number of filibusters since 2009, there seems no way Majority Leader Reid could find 14 GOP senators to cross the aisle on filibuster reform. So why the cautious optimism among progressives and Senate Democrats? Well, there may be another way….

“Nuclear” or “Constitutional?”

Senator Tom Udall (D-NM) has proposed the “Constitutional Option” to reform the filibuster by a simple majority vote. Martin Gold and Dimple Gupta explored the arcane history and procedural details of this strategy several years ago, in an article in the Harvard Journal of Law and Policy.

Ironically, Gold was the floor advisor to then Senate Majority Leader Bill Frist (R-TN), and the article was written to buttress a GOP plan to stop a threatened Democratic filibuster of President George W. Bush’s judicial nominees. Senator Trent Lott (R-MS) first called this the “Nuclear Option,” perhaps to indicate that it was a bluff: if Democrats blocked President Bush’s nominees, Republicans would ‘blow up’ the filibuster entirely. But in the ConservaSpeak manner of things, it was renamed the “Constitutional Option” to sound less Mad Bullyish and more Original Intentish.

In fact it is neither “Nuclear” nor “Constitutional.” There will be no mushroom cloud on the Senate floor, no matter what happens next week. And while Article I, Section V of the Constitution directs each chamber of Congress to establish its own rules and the Supreme Court held in U.S. v. Ballin (1892) that a simple majority was sufficient for a quorum to take action, the Ballin decision did not specifically address whether the Senate is a “continuing body.” If so, the Senate has made its rules as directed in Article I, Section V … and those include Rules V and XXII.

And although the “Constitutional Option” was first proposed by Republicans, you can bet their opinion on its constitutionality will have changed by next week.

The devilish details:

An attempt to reform the filibuster by a simple majority vote would follow five steps:

  • A motion to amend Rule XXII. As discussed yesterday, this requires at least 51-vote majority agreeing on what rule change to make. But it will doubtless be met by a GOP filibuster and ensuing debate.
  • A point of order to end debate. A senator stands and says: “Debate having continued on this issue for [X] hours, I make a point of order that further debate is dilatory and out of order.” The key here is that under Senate Rule XX, points of order are not subject to debate or filibuster. If the Senate President – look for Vice President Biden to assume his constitutional role here – affirms the point of order, that sets a binding precedent and the debate ends. But they’re not done….
  • A motion to appeal the point of order. A Republican would appeal to the Senate President on the point of order, and ask for debate on the point of order.
  • A motion to table the appeal. A Democrat would move to table the appeal. Like points of order, motions to table are not subject to debate or filibuster. So this motion could pass by a 51-vote majority.
  • A point of order that tabling the appeal expresses “the voice of the Senate.” If the motion to table passes, one of the Democrats would make a point of order that tabling the appeal by a majority vote expresses “the voice of the Senate” on the merits of the appeal. If the Senate President affirms the point of order, the appeal is deemed denied.

If all of that happens, the Senate could then vote on the original motion to amend Rule XXII, and a simple 51-vote majority could pass the amendment. But that’s a big “if.” You can expect the Republicans to challenge every point, and probably threaten a lawsuit. Given the importance of a quick decision – as any Senate action in the interim would be subject to legal challenge – the case might go directly to the Supreme Court. While the Court may decline to hear the case under the Political Question Doctrine, they may not.

And knowing his decision might be soon subject to review by a Supreme Court stacked with conservative activists, the Senate President might reasonably be very cautious in ruling on those points of order.

With this many procedural hoops to jump through, filibuster reform is by no means guaranteed. That’s why Majority Leader Reid is trying to cut a deal that gets at least some Republican support. It isn’t cowardice. It’s common sense.

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Happy Friday!