In past confrontations over rules, brinksmanship gave way to blinksmanship, presumably to preserve the ability of the Senate to continue functioning. Unless the Senate invests its leadership with the same extraordinary powers the House gives to its leadership, a minority can tie the Senate in knots even without resort to a filibuster. But I do think it true that any current majority party could use brute strength to recreate the Senate rules to mirror the rules of the House. The problem, even for a majority party, is that those rules also reduce most of its own members to the equivalent of little more than back benchers in the House of Commons. I wonder whether Senators from the majority party who are not part of the party leadership would so willingly surrender that much power to their party leaders, and by extension, whether the Senate would so willingly cede effective power to the President.
Michael R. Masinter 3305 College Avenue Nova Southeastern University Fort Lauderdale, Fl. 33314 Shepard Broad Law Center (954) 262-6151 [EMAIL PROTECTED] Chair, ACLU of Florida Legal Panel On Thu, 5 Jun 2003, Stephen Siegel wrote: > Pardon this cross-posting, but the filibuster was just discussed on the > lawcouts list. That discussion gave me the opportunity to test out a > thought about the filibuster's constitutionality that I did not raise > during the prior discussion on this list. Because my posting received an > interesting response I post them both here. My original post refers to a > message from Chris Schroeder, but I do not think it necessary to see that > message to get the gist of what I suggest. Here goes: > > A colleague on my faculty, who is an expert in congressional procedure, > tells me that something like what Chris Schroeder writes was in fact done > when Senator Byrd was majority leader. The occasion was when the Senate > reduced the number of Senators needed to end a filibuster from 2/3 of the > Senate to a mere 60. The fact that through procedural maneuvering, aided > by a friendly presiding officer, a majority of the Senate may change the > supermajority cloture rule is what, in his opinion, prevents the > entrenchment of the filibuster rule from being unconstitutional. His > opinion is that the procedural manueuver requires a friendly chair. I do > not quite see why if, as Chris indicates (to me at least), a majority of > the Senate can decide appeals from the Chair as it sees fit. My colleague > says the need for a friendly chair stems from the Chair's power to > recognize or not recognize Senators who want the floor. > > Does anyone have a more detailed story of how the cloture majority was > changed last time? Do people agree that a sympathetic chair is required? > > Stephen Siegel > DePaul University College of Law > > AND THE RESPONSE: > > For a detailed account of the relevant 1969 and 1975 cloture reform > efforts, see chapter 6 of Binder and Smith's book POLITICS OR > PRINCIPLE (Brookings 1997). > > In 1975, the procedural route was used to establish that a simple > majority could close debate on new rules at the beginning of a > Congress. At this time Vice President Rockefeller ruled that a > simple majority could vote in new rules. Senate majority leader > Mansfield objected (via a point of order) and called for a vote > overturning Rockefeller. Mansfield's point of order was tabled by > majority vote. Under precedent established in 1967, a successful > motion to table a point of order leads immediately to a vote on the > underlying motion to change the rules. > > However, in 1975 they did not vote on the underlying motion. > Instead, the successful tabling motion gave the reformers tremendous > bargaining leverage. In the end, it was agreed that the precedent > established by Rockefeller would be overturned; cloture requirements > for legislation would be reduced to 3/5ths; and that cloture for rule > changes would remain 2/3rds. For the Republicans to go with what I > described as the "nuclear option" in my previous message would > require them to reverse the final precedent established in 1975. > > As for the presiding officer's power of recognition, it is extremely > important. Points of order can be made (upon recognition), but can > also be filibustered. There are two keys here. First, a tabling > motion is not debatable and thus can not be filibustered. Second, a > successful motion to table will lead to a vote on the underlying > proposal. Hence, a determined majority needs to structure the change > so that the key vote is a tabling motion. > > The bottom line is that procedurally a Senate majority could indeed > change the rules by majority vote. But, in the past when the Senate > has reached this brink it has stepped away. > > Forrest Maltzman > Dept. of Political Science > George Washington University > >
