Friday, November 22, 2013

The Fun House Mirror Rule that Changed the Filibuster in the Senate

Today the Senate voted to revise its rules, enabling the Senate to cut off debate on executive and judicial branch nominees with a simple majority.  I think the collegial consensus culture of the Senate has changed to the point where this was overdue.  I think Harry Reid should have done it at the beginning of  Obama's first term when it became clear that obstruction would be the name of the game.

Here's a brief post mortem.

In 1789, the first U.S. Senate adopted rules allowing the Senate to end debate and proceed to a vote. At the time Aaron Burr felt this was redundant, and a few years later the Senate agreed when it did not include a mechanism for ending debate when it rewrote the rules in 1806.  This lack of ability to cut off debate laid the foundation for the use of the filibuster, although it took 31 years before the first filibuster was exercised.

In 1917 the Democratic Senate added a rule allowing for the cloture of debate (ending a filibuster) after a group of 12 anti-war senators blocked a bill that would have allowed President Wilson to arm merchant vessels to combat German submarine warfare. From 1917 to 1975, the requirement for cloture was two-thirds of those voting.   In 1975 the Democratic-controlled Senate amended the rules so three-fifths of the senators sworn (usually 60 senators) could limit debate, except on votes to change Senate rules, which still required two-thirds to invoke cloture.

So with a two-thirds majority requirement for a rule change, how did the Senate manage to change the rule today?

Here's how filibuster expert Gregory Koger explained it to Ezra Klein today:
In a paper I'm writing with Sergio Campos, we lay out five illustrative options for how a majority could work its will. It's not exhaustive, because there are dozens of ways you could do this. What the Democrats did today was our option four. You bring up something, have a cloture vote, and after you lose say, "It takes a simple majority to win this one." We're not the only people who had this idea but we did anticipate this possibility. They had the floor debate on the nominee, and the cloture vote, and then the chair's decision is announced that cloture was not invoked, and Harry Reid raises his objection to the ruling of the chair and says he objects because it only takes a simple majority to invoke cloture on all executive nominations, and all judicial nominations except the Supreme Court. So the "rule" is articulated by the objection he's raising, and the only reason that it [SCOTUS nominations] was carved out is that Harry Reid said so.
Say what ……?

If I understand this right, Koger is saying you only need a majority vote to rule on an objection to a ruling of the chair (Point of Order under Rule XX), and so you can frame whatever you want the new rule to be in your objection.  If the  objection is then sustained by a majority …. voila, you've got your new rule!

Well, at least they are still operating by rules, even if it's fun house mirror rules.

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