Senate can change its rules and end Republican filibusters with a simple majority vote

Government running to stand still
By Clive Crook
February 14, 2010


Barack Obama’s ambitions to pass ground-breaking laws on healthcare and climate change have so far come to nothing. A second economic stimulus had seemed to be moving forward, but also now looks in trouble. Democrats occupy the White House and have big majorities in Congress, yet cannot get anything done. Why the paralysis?

Partly because the country views all these initiatives with suspicion. But one key factor is an anomalous institutional constraint: the Senate’s filibuster rule, which turns the Democrats’ 59-41 majority in the upper house into a de facto minority. Liberal commentators view this rule with splenetic fury, and one can see why. It makes America ungovernable, they say. We should get rid of it.

The interesting thing is that they could. Contrary to the belief of many Americans, the filibuster rule – which requires 60 senators to support “cloture”, thus bringing a measure under consideration to a vote – is not in the constitution. Getting rid of it does not require a constitutional amendment, which is a demanding process. The Senate could do this at its own initiative. Not only that, it could do it by simple majority vote.

Like most things on Capitol Hill, the process would be somewhat convoluted. A different Senate rule says that a supermajority in the chamber is needed to change Senate rules. Democrats would first have to revoke that rule, before moving on to the filibuster rule. The question is whether the change to the rule about changing rules would itself be constitutional, if it were passed only by a simple majority. The answer is that it would be.

Under the constitution, this is a matter of internal procedure, for the Senate to decide. If it chooses, it can impose on itself restrictions like the filibuster rule or the rule-making rule. But it can also subsequently remove them: otherwise, any one Senate might bind its successors in perpetuity. There is nothing in the constitution to say that changes to the rule-making rule need a supermajority.

Then why not do it? Aside from the fact that they would be ridding themselves of an infuriating constraint, Democrats could make an excellent principled case for the change. It is true, they might concede, that the original framers of the constitution foresaw the Senate as a delaying, blocking chamber. Senators were once chosen by state legislatures, for example, not by citizens: the idea was to protect state governments from federal encroachment. This was changed by constitutional amendment.

Even now, however, the Senate is a deliberately unrepresentative institution, in the sense that every state, no matter how small, gets two senators. This overweighting rewards bipartisan co-operation, checks the power of the majority and upholds states’ rights, the role envisaged for the Senate. The filibuster rule, Democrats could argue, is an extra step that goes too far. Empowering the Senate minority to this degree is constitutionally unwarranted and democratically objectionable.

In effect, by institutionalising the supermajority requirement, Republicans have amended the constitution without going to the trouble of passing an amendment. So why are the Democrats hesitating?



Read the full article at:

http://www.ft.com/cms/s/0/5261ee22-199b-11df-af3e-00144feab49a.html

- I don't agree with some of the political views of the author expressed in the article, however, he does explain how Senate Democrats can change Senate rules and end fake Republican procedural "filibusters" with a simple majority vote.
BBI

As long as there isn't a filibuster on the rule change it only requires a simple majority.

Cloture on amendments to the rules requires a 2/3 majority vote. That is 67 votes.

A two-thirds vote is required to suspend the rules after a day's notice is given.

Senate Manual
Clive Crook needs to do a better job in his research.

There is no constitutional or legal requirement demanding 67 votes to change Senate rules.

This is true no matter what previous Senates have decided. The Senate is free to change its rules and can revoke previous rules whenever it chooses too. The Senate can decide to change its rules by a simple majority vote and that is constitutional.

Read the article again.

"Like most things on Capitol Hill, the process would be somewhat convoluted. A different Senate rule says that a supermajority in the chamber is needed to change Senate rules. Democrats would first have to revoke that rule, before moving on to the filibuster rule. The question is whether the change to the rule about changing rules would itself be constitutional, if it were passed only by a simple majority. The answer is that it would be."

wanting to do what is hard. "Oh, we don't have the votes." Moving along here. Nothing to see.

Even at the expense of making America onto a third world nation.

Then the opposition can just point back and say it's ok since the Democrats did it first.

The government ought to govern.

They don't need an excuse. They didn't need one in 2005 when they threatened to use the Constitutional Option to prevent a filibuster against Bush's Supreme Court appointments. In response to this threat, Democratic Senate leaders surrendered the right to filibuster.


The Republicans will stop any Democratic filibusters they don't like. They won't bluff.

If necessary, the Republicans will get a ruling from their Senate President that only a majority of votes is required to end debate on any legislative proposal or appointment and/or that Senate rules can be changed at anytime by a simple majority of Senators using the "Constitutional Option.

They were not afraid to do that in 2005 when they had a majority in the Senate and they are even less likely in the future to hesitate in using their Senate power to end threatened Democratic procedural filibusters or Senate floor filibusters.

Meanwhile, it seems that far too many Democrats would rather let the Republicans continue their obstruction of the Senate than use their majority power to run the Senate.