I don’t believe most Democratic leaders in Congress support the public option. I think they are PRETENDING it can’t be passed when, in fact, they are doing all they can to thwart its passage. It seems we’re being played for fools.

Great post. Also highly relevant given the breaking news that there will be a reconciliation vote on public option (I, like you, give zero credence to the pro forma “obstacles”.) Two important things to add:

#1: The Fire the Parliamentarian option can be exercised by merely subtly holding that threat over his head. Frumin got his job this way, and it shouldn’t be hard to remind him he can lose his job this way.

#2: Almost no one in the general public knows or cares about these things. This gives the Democrats license to do whatever the hell they want, however the hell they can get it. In fact, if they end up accomplishing things people like such as the public option, and the Republicans claim the Democrats aggressively pushed these changes through – that would actually be a PR win for Democrats – people don’t care about procedural deference anymore, they’d just be amazed that the Senate actually got something done!

Is this political reporting? I am 60 years old and have read many newspapers and periodicals that claimed to have political reporting, but apparently lacked knowledge of the political process. Perhaps it was just that the advertisers had more influence than the readership.

I think the primary candidates for the U.S. Senator should sign virtual political platforms containing some specific political objectives. Such a thing has been done in the U.S. House by both the Democrats and Republicans.

For background on the subject, you might want to check out Modern U.S.Attempts at Party Platforms
https://sites.google.com/site/usvotersite/Home#platforms

What appalling, ends-justify-the-means contempt you have for fair, democratic self-government, and orderly legislative process, Jon (a contempt that’s avidly shared, apparently, by mikesong).

Rules? Precedents? Throw them out the window, and start over – every year, or every month, or every week, if necessary. What could possibly go wrong…

Senator Robert Byrd, speaking October 2, 1992 upon the publication by the Senate Parliamentarians of a new edition of Riddick’s Senate Procedure:

My experience with the Senate’s rules compels me to appreciate the wisdom that Vice President Adlai Stevenson expressed in his farewell address to the Senate on March 3, 1897. I believe his observation is as fitting today as it was at the end of the nineteenth century[...]:

It must not be forgotten that the rules governing this body are founded deep in human experience; that they are the result of centuries of tireless effort in legislative hall, to conserve, to render stable and secure, the rights and liberties which have been achieved by conflict. By its rules the Senate wisely fixes the limits to its own power. Of those who clamor against the Senate, and its methods of procedure, it may be truly said: `They know not what they do.’ In this Chamber alone are preserved, without restraint, two essentials of wise legislation and of good government–the right of amendment and of debate. – V.P. Stevenson, 3/3/1897

Have I said yet powwow, how nice it is to have you prowling these halls again?

If Biden ignores the parliamentarian, and rules against a point of order to remove the public option, it would take 60 votes to take the public option out of the bill.

i’m sure the folks who have been insisting that nothing less than a simple majority vote in the senate is “democratic” will, of course, have nothing to do with advocating this path, which in addition to what powwow wrote, violates that firmly held “democratic” value of simple majority rule above all else.

What nothing suggested is a violation of the rules. My suggestion is that they follow the rules to the letter. If the Senate did not want the chair to have the ultimate say on a point of order but wanted it to be the parliamentarian than they should have written the rules as such.

Frankly anyone who thinks saving the government $25 billion does not effect the sufficently budget should be fired from that job.

I would very much hope that after Biden’s ruling another senator would raise a constitutional point of order against the Byrd rule so Biden could than uphold that point of order and remove the 60 vote requirement from the Byrd rule.

Do you thank advocate restoring the right to filibuster in the House? Clearly the house saw the filibuster as destructive to governance and get rid of it. Only asking the Senate does the same and therefore restore the Congressional balance of power back to what the constitution says it should be.

What nothing suggested is a violation of the rules.

You seem to misunderstand the role of the Senate Parliamentarian, which is simply to relay to the Presiding Officer the most faithful interpretation of Senate rules, by reference to painstakingly-compiled earlier Senate precedents of actual Senate practice (see Riddick’s Senate Procedure).

So when you say this…:

If Harry Reid is really worried that the current Senate parliamentarian will advise the presiding officer of the Senate that the public option runs afoul of the Byrd rule…

…never mind this…:

Firing Or Ignoring The Parliamentarian – It’s Called Leadership

…what you are quite-explicitly advocating is that the Senate Parliamentarian’s best advice on what the Senate’s own democratically- and Constitutionally-passed rules, and past Senate precedents implementing those rules, require the Presiding Officer to do – in order to uphold the Byrd rule at issue, a rule that the Senate itself provided for – be overthrown/ignored/abrogated by the Presiding Officer, simply because the end he (on behalf of his Party) prefers is otherwise blocked by that interpretation. Or, in the alternative, to save face for that Presiding Officer and his Party, that the non-partisan Parliamentarian giving his best, but unwelcome, advice about the rule(s), be fired and replaced by a toady who will do as he is told by partisans, to keep his job and render the outcomes which that particular partisan majority prefers, the actual rules be damned.

The Chair/Presiding Officer does have the ultimate authority to make the ruling, but he has no legitimate authority to ignore or waive Senate rules because he finds them inconvenient. The legitimate and orderly way to change existing, unwelcome Senate precedent is for the Presiding Officer to uphold clear precedent that the Parliamentarian informs him of, and then for any disagreeing Senator to appeal the ruling of the Chair, whereupon the Senate itself can vote to overturn that ruling, with 60 votes, if it so desires. Likewise, the legitimate, orderly way to change an unwelcome Senate rule, like part or all of the Byrd rule, is to propose that change to the Senate, wait out any subsequent filibuster that may develop to the proposed change, and then, if sufficient support exists, adopt that change by simple-majority vote.

Frankly anyone who thinks saving the government $25 billion does not effect the sufficently budget should be fired from that job.

It is not the job of the Senate Parliamentarian to make value judgements about the legislation on offer, and he would not be doing that by stating his opinion that the Byrd rule in some way prevents the public option from being passed via reconciliation. You’re applying a partisan test to a non-partisan judgement. Only if you had some evidence that the Parliamentarian was making a partisan or political assessment by way of the advice he’s giving, could you credibly claim that he’s unfit for the job. [Same standard applied to the Senate Parliamentarian serving during former Majority Leader Lott's tenure, when Lott instead decided, on President Bush's behalf, that the Republicans didn't need to obey or honor Senate rules and precedents that someone in the White House found inconvenient. How has the legislation that Lott's power-grab foisted on the nation enhanced the nation's well-being, by drastically increasing the future debt load of its people, and setting the precedent for ignoring precedent in the Senate that you now cite?]

Trying to pretend that the rules, and precedents as to their implementation, simply don’t exist (because if that’s done for one rule or precedent, it can and will apply to all rules and precedents), and can be ignored or waived at will by the Presiding Officer, because he’s backed by enough Senators and thus has the raw power to do so, is akin to the thinking in the Bush OLC that the Convention Against Torture, or federal laws against torture, or Fourth Amendment restrictions, simply don’t apply to what they want to do or authorize, because they say so – and besides, who’s going to stop them. It’s an abuse of power, an exercise of might-makes-right thinking, and dangerously abandons the rule of law in favor of the rule of man.

Points of order that raise questions of Constitutional import must be decided by a vote of the Senate itself, rather than by the Presiding Officer. [Assuming, that is, that any concept of honoring an existing "rule" remains, in the anarchy of a legislature where the adopted written rules are optional...]

Senate rules are not democratic they are reach by 2/3 majority. That is the by definition not democratic.

The Chair/Presiding Officer does have the ultimate authority to make the ruling, but he has no legitimate authority to ignore or waive Senate rules because he finds them inconvenient

Again nothing in the piece ask the Democrats to ignore or violated the rules. What I suggest is 100% with in the rules. Nothing in the rules say the chair needs to follow the advice of the parliamentarian. You are saying he should follow tradition not the rules. This move does not require biden to ignore or waive Senate rules.

Trying to pretend that the rules, and precedents as to their implementation, simply don’t exist (because if that’s done for one rule or precedent, it can and will apply to all rules and precedents), and can be ignored or waived at will by the Presiding Officer, because he’s backed by enough Senators and thus has the raw power to do so, is akin to the thinking in the Bush OLC that the Convention Against Torture, or federal laws against torture, or Fourth Amendment restrictions, simply don’t apply to what they want to do or authorize, because they say so – and besides, who’s going to stop them. It’s an abuse of power, an exercise of might-makes-right thinking, and dangerously abandons the rule of law in favor of the rule of man.

This is plan nonsense. The constitution gives the majority the right to pass legislation. That it clearly does not give a simple Senate majority the right to violate the constitution. Equally a simple majority can’t pass a law to ignore a treaty on torture because the constitution says you can’t. Again did not ask for a change of the rules just a strict following of them. Asking Democrats to restore the constitution is completely different than attempts to shred it.

If you don’t think majority rule is the way things should work than you should launch a campaign to restore the filibuster in the House or consitutional amendment to make 60 votes the offical threshold in the Senate.

Do you thank advocate restoring the right to filibuster in the House?

I might, if I thought it was feasible, given the size of the membership today (which seems to argue against it). However, the fact that Parties and their leaders are forever in pursuit of more power, and often manage to obtain it, doesn’t mean that the right to extended debate in the House was in any way “destructive to governance” – despite claims to the contrary from those who disdain orderly legislative process and other essential elements of fair, democratic self-government.

Whether or not it’s a return of the right to extended debate, something has to be done to restore meaningful debate to the floor of the House of Representatives. That chamber is now nothing but an empty auditorium, for the most part, when the House is in “session,” used in any real way only during State of the Union speeches. The complete control of the House Rules Committee by the Speaker, and its dominance over floor proceedings – thus giving the Speaker the ability to virtually shut down floor debate, and to make meaningless what limited debate (on pre-ordained outcomes) does occur (by preventing almost all floor amendments) – is, I think, the primary place where reform in the House needs to begin.

Because, as Senator Robert Byrd went on to say in the 10/2/1992 [Item 45] comments I quoted @ 4:

Great evils often result from hasty legislation; rarely from the delay which follows full discussion and deliberation. In my humble judgment, the historic Senate–preserving the unrestricted right of amendment and of debate, maintaining intact the time-honored parliamentary methods and amenities which unfailingly secure action after deliberation–possesses in our scheme of government a value which can not be measured by words.

You hit the nail on the head. Powwow is defending tradition, not rules. The tradition of never getting anything done. I’m all for following rules – one should interpret them creatively and try to change them if possible, but at the end of the day follow them. But when it comes to tradition, especially concerning an institution as failed as the Senate, who gives a fuck? Gotta break a few eggs to make an omelette, and our country is really really hungry for a lot of omelettes.

Senate rules are not democratic they are reach by 2/3 majority. That is the by definition not democratic.

False. [Why don't you bother to get the basic facts straight?]

You are saying [the Presiding Officer] should follow tradition not the rules.

Every rule usually has to be interpreted in some way when actually put into practice, and, as often, if no specific rule exists, a standard practice has to be settled on – thus Senate “precedent.”

As Senator Byrd noted in his 1992 speech, the Standing Rules of the Senate can be contained in a 60-page pamphlet. The way those rules, and other procedures, have actually been implemented in practice, since 1873, runs to more than a thousand pages of precedent. If the Senate had to decide how to reapply its rules (or lack thereof) every day, without regard to precedent, it’d be endlessly reinventing the wheel, preventing the orderly conduct of business, and constantly contradicting itself while rendering unfair and unpredictable decisions about floor proceedings on a daily basis. If you don’t understand or appreciate the value of Senate floor debate precedent, you simply don’t understand how a legislative body functions.

This move does not require biden to ignore or waive Senate rules.

If there’s a clear rule on the question, yes it does. In addition, a Presiding Officer should honor the “order” of the Senate when there are clear precedents, whether or not there’s a clear rule at issue:

Points of order or questions of order are directed against present actions being taken or proposed to be taken by the Senate and deemed to be contrary to the rules, practices, and precedents of the Senate.

That’s part of the order of the Senate that you want the Presiding Officer to discard. Furthermore, under reconciliation, which is designed in part to protect Senators from politically-difficult votes on non-Social Security “entitlements,” and the deficit, by creating an exception to normal debating rules, as a result of that unusual exception, the Presiding Officer should take extra care to honor clear precedent – for the same reason that 60 votes are needed to override his rulings on budget points of order: To safeguard reconciliation’s limited-debate exception from abuse.

The constitution gives the majority the right to pass legislation.

As do existing Senate rules and precedent, much as you and the Democratic leadership and caucus in the Senate may want to pretend otherwise. The fact that this seems to escape you makes the rest of that paragraph seem nonsensical.

If you don’t think majority rule is the way things should work…

Where’d I say that?

The people who need to launch a “consitutional amendment to make 60 votes the offical threshold in the Senate” are the people who have already voluntarily imposed that threshold on the Senate, without benefit of such an amendment – about whom, see the leadership of both the Democratic and the Republican Parties in the Senate and out, bolstered by those among their supporters who pretend that the ongoing abuse of the rules (specifically, optional Rule 22 cloture), that has imposed de facto 60-vote supermajority rule on the Senate, is the same as the faithful exercise of Senate rules and precedent governing the passage of legislation, which it plainly is not.

Nope. I’d much prefer it if the Democrats first forced a physical filibuster and then used the nuclear option, and we forgot about having more 50+1 votes for anything except those matters where a higher requirement is explicitly written into the Constitution. In fact, I wouldn’t even mind if the opposition to the PO called a constitutional point of order when the Chair ruled they needed 60 votes to take the PO out of the bill.

But powwow will undoubtedly point to the centuries of tradition lying behind the Byrd Rule — not!!

powwow, Senate rules and procedures are not the law of the land. Prohibitions against torture are.

Comparing what lawyers did in the Bush Administration and what they are doing today in the Executive Branch to hold criminals harmless for their crimes, isn’t comparable to the VP making a decision on the Constitutionality of Senate rules and procedures in response to a point of order, whatever previous Senate precedents may exist. The VP has a right to make his/her best judgment about what is constitutional and what is not. If Senators don’t like what the Chair says, they can appeal from the Chair and outvote the decision.

As far as your comments about what is legitimate to do, and what is not. Those are your opinions about legitimacy. They are not constitutional law.

I have other opinions. I think it was illegitimate and unconstitutional for the Senate to adopt the filibuster in the first place, and I also think that all filibuster related procedures including cloture votes are illegitimate now and have always been so. And I think that regardless of Senate precedents, all of these illegitimate procedures ought now to be swept aside in favor of what the constitution clearly says about majority rule in the Senate.

there are several comments containing many words actually written by powwow and your first comment/criticism of them is something you invented?

wow. just wow.

i guess i have to withdraw my previous comment. i was wrong.

…to the VP making a decision on the Constitutionality of Senate rules and procedures in response to a point of order, whatever previous Senate precedents may exist. The VP has a right to make his/her best judgment about what is constitutional and what is not.

Neither the Vice President nor any other Presiding Officer has such a right. The Senate, however, does.

I repeat, from Comment 11:

Points of order that raise questions of Constitutional import must be decided by a vote of the Senate itself, rather than by the Presiding Officer. [Assuming, that is, that any concept of honoring an existing "rule" remains, in the anarchy of a legislature where the adopted written rules are optional...]

Meaning that the Presiding Officer must put the question to the Senate without first issuing a ruling on it.

And, yes, the “thinking” (of which you are an avid proponent) that claims that the existing Senate “regular order” – in the form of their duly-adopted (by simple-majority) rules and precedents, which prescribe a method for the formal, simple-majority adoption of new or changed rules – may be simply violated at will, as though the existing order didn’t exist – so as to impose a new method of rule change (by first ignoring existing rules), or a new method of setting precedent (by first ignoring existing precedent) – is indeed, as I said, “akin to the Bush OLC” approach (in their case) to endrunning the law via creative interpretation.

I think it was illegitimate and unconstitutional for the Senate to adopt the filibuster in the first place…

When, exactly, did the Senate “adopt the filibuster” and how was (and is) that rule or precedent worded and cited?

powwow,

I’m really up in the air about the specifics of this argument. Regardless, I think the question assumes we are playing a game in which all players follow the rules. (I do not use “game” in any sense meant to trivialize things but in a game theory sense.) However, this is not the current situation. The rethugs never follow the rules when they get in their way and they threaten to change them when they have to power to do so when the Dems try to use the rules to block things the rethugs care about. In such a scenario, we really are not dealing with democracy, fairness or justice, we are dealing with a situation in which power prevails. If the rethugs hadn’t fired the parliamentarian when they didn’t like his rulings, and if the rethugs hadn’t threatened to simply kill the filibuster through a 51 vote majority in order to pass some really awful judges, we might be talking about what to do in the context of a fair game.However, that is not the case. We are really talking about how to win in a context where the other player does not care about the rules. In such a game you do what is necessary to prevail.

Again powwow you are wrong. The rule says it is the decision of the chair if something violates the Byrd rule. By tradition he follows the advice of the parliamentarian but that is not the rule.

Find me the rule where it says the Chair must follow the advice of the parliamentarian. I can promise you it does not exist.

Powwow the rule for changing the Senate rules is that it must have 2/3rd vote.

selise, I’m disappointed that you no longer consider me your favorite person to disagree with anymore. Regarding my comment on powwow, however, I just thought a little snark was in order, since these exchanges over the filibuster have been going on for many days now, and I don’t think anything new is being added by claims that this or that move, undertaken according to the letter of the rules, is illegitimate because of this or that tradition, or precedent, or custom.

I think such claims only ratchet up the heat in these exchanges and not the light. I also think that such calls for respect for traditions and precedents are not progressive in nature. They are the kinds of arguments that have been used by opponents of progressive change since the beginning of our political system. And in my view, they are truly meaningless arguments, because they ask for respect for things that were done in the past simply because they were done. Simply because they exist. They are the kinds of arguments Voltaire and the enlightenment railed against, and they are the kinds of arguments opposed by Conservative themselves when it’s expedient. Thus did Burr respect Jefferson’s precedent about limiting debate in the Senate when he ruled in favor of unlimited debate? Do today’s conservatives respect traditions and precedents and the customs of the Senate when they silent filibuster everything in sight?

People here at FDL disagree fundamentally in principle when it comes to the filibuster and whether it should exist at all, and also pragmatically on the likely effect of re-introducing the physical filibuster. I think that powwow and yourself are doing great research on past precedents surrounding the filibuster and filibuster-related procedures, and I certainly encourage this work. But, even if you found a means that some progressive law makers could use to force the Senate to go back to physical filibusters, that research still wouldn’t touch the disagreement between who are open to living with the filibuster and those of us who are not open, because of our interpretation of history and because we believe, in principle, that the Senate ought to run by majority rule when it comes to procedural and ordinary legislative matters, and also that such rule is, in fact, written into the Constitution and has never been modified properly by amendment.

We believe therefore, that the filibuster is worse than illegitimate, because it is actually unconstitutional. Where attempts to get rid of it such as the nuclear option are not illegitimate just because they are not unconstitutional.

The real heart of powwow’s argument is the view that the rules and precedents of the Senate should be respected more than challenges to them on grounds that they are contrary to the written constitution. This is what his claim that a successful execution of the nuclear option would be an abuse of power really means. This makes no sense to me. In our system, an abuse of governmental power is an action taken by authorities that is contrary to the written laws, and the constitution and its implications. On this standard, it is the use of the precedents sustaining the filibuster and the filibuster itself that are abuses of power. But current attempts to get around it, or even to get rid of it with the nuclear option are no more than efforts to redress the constitutional balance.

… the rule for changing the Senate rules is that it must have 2/3rd vote.

you have a source reference on that jon? because i think you may be, once again, confusing a cloture vote with the vote to change the rules. here’s the best bit i found from riddick’s senate procedure section on rules, page 1217:

If proposals to amend the rules should be filibustered, it would take a two-thirds vote to invoke cloture, but the vote on the adoption would still only require a majority vote.

The real heart of powwow’s argument …

that may be your opinion, but it is most certainly not mine. furthermore, the only person qualified to describe the heart of powwow’s argument is powwow.

…..

i’m really interested to know your response to powwow’s question @20. i hope you will chose to answer that one:

When, exactly, did the Senate “adopt the filibuster” and how was (and is) that rule or precedent worded and cited?

powwow,

Here are the steps in the nuclear option, the procedure for challenging the filibuster on constitutional grounds:

1) During a filibuster, a Senator makes a point of order calling for a vote on the measure being considered by the Senate that is the object of debate.

2) The presiding officer of the Senate, most often the Vice President of the United States, makes a parliamentary ruling upholding the point of order and citing the Constitution of the United States, rather than previous Senate precedents (upholding the right of unlimited debate) as the legal basis supporting the ruling.

3) A supporter of the filibuster will then “appeal from the chair” by asking whether the Chair’s decision will stand as the judgment of the Senate.

4) An opponent of the filibuster then must move to table the appeal.

5) Since motions to table are not debatable, the Senate immediately votes on the tabling and decides by simple majority vote.

6) If a majority decides to table, the ruling of the Chair, that the filibuster is unconstitutional, and that majority vote is enough to bring a bill to vote and to pass it, is upheld.

7) By its action in upholding the Chair, the Senate will have established a new precedent, namely that filibusters are unconstitutional, and that all legislation thenceforth may be passed by majority vote, following a point of order calling for a vote.

I think this procedure runs counter to your claim here:

…to the VP making a decision on the Constitutionality of Senate rules and procedures in response to a point of order, whatever previous Senate precedents may exist. The VP has a right to make his/her best judgment about what is constitutional and what is not.

Neither the Vice President nor any other Presiding Officer has such a right. The Senate, however, does.

Does that mean that you think this description of the nuclear option is inaccurate?

Or alternatively, does it mean that you think the Chair has no right to uphold the point of order? If the latter, I think you are in disagreement with the constitutional scholars who have outlined the nuclear option and not just with me.

You also said:

Meaning that the Presiding Officer must put the question to the Senate without first issuing a ruling on it.

That directly contradicts step 2 just above which says, in effect, that the presiding officer can decide the question in the absence of an appeal to the Chair. Of course, the opponents would be crazy not to appeal such a ruling to the Chair, and force a majority vote.

You also said:

I think it was illegitimate and unconstitutional for the Senate to adopt the filibuster in the first place…

When, exactly, did the Senate “adopt the filibuster” and how was (and is) that rule or precedent worded and cited?

Actually, there was no formal and intentional adoption of the filibuster, When the Senate first met in 1789 it adopted a rule that allowed Senators to “move the previous question,” a rule that was used successfully only 4 times during the next 17 years and that could be used to prevent unlimited debate and has been so used in the House. In 1806 the Senate recodified its rules and Aaron Burr, then the VP and presiding officer proposed that it eliminate the previous question motion rule entirely. The Senate too his advice and evidently neither Burr nor the Senators understood that they were opening up the Senate to the possibility of unlimited debate without recourse.

Nor was that fully apparent until the late 1830s when the filibuster was first recognized as a possibility and used, I believe by John C. Calhoun and others. Those interested in this history will find an account in Martin Gold, Senate Procedure and Practice, 2004, pp. 48ff.

My point is that the filibuster emerged by accident, and that the Constitutional question of whether eliminating the rule for moving the previous question was Constitutional was never raised in 1806. But that doesn’t mean that the Senate never “adopted” the filibuster, since when the practice emerged that we came to call the filibuster, in the late 1830s, it most certainly allowed the practice of unlimited debate to continue until the 20th century when the first cloture procedures were introduced.

. . . the only person qualified to describe the heart of powwow’s argument is powwow.

selise, powwow wrote what he wrote. Everyone of us is qualified to offer our understanding of what he wrote in formulations such as “the heart of powwow’s argument is etc . . . “). Of course, the understandings we offer are only conjectures and may well be false. But I’m afraid that it’s also true that powwow (himself or herself) may offer a false understanding, interpretation, or explanation of what he wrote in just the same way, since people are frequently mistaken about the meaning of what they wrote, or make logical errors in their interpretation of what they wrote. In short, powwow’s texts stand on their own, and the truth of anyone’s interpretations of them has to be based on what the interpretation says and not on the authority of its author, who cannot be “privileged” in this respect.

I’ve already answered powwow’s question @20.

Powwow the rule for changing the Senate rules is that it must have 2/3rd vote.

I repeat: False.

And, seconding selise @ 25, who did the research you skipped:

Which rule is that, Jon? How is it worded, and what is its citation?

I think this ["nuclear option"] procedure runs counter to your claim here:

Of course it does, letsgetitdone, because the “nuclear option” is a prime example of the OLC-style “thinking” I’m describing @ 20 – where we first blow up the existing rules in order to avoid changing them as the rules provide. Forever making a mockery of the concept of “precedent” or “order” in the Senate, whenever an unprincipled, power-hungry majority wants something, but can’t be bothered to use the current rules to get it. [Frist's "nuclear option" boys on the Senate Rules Committee being kissing cousins of Bush and Cheney's "Constitutional scholar" boys and girls in the OLC.]

Does that mean that you think this description of the nuclear option is inaccurate?

Not at all, as should’ve been clear from my long comment to you [trying to warn you about the future of a post-explosion Senate, given the absurdity of the use of future points of order (as opposed to "points of power") in such a Senate], replying to one of yours, that included and quoted those same #1-7 points (in El Duderino’s recent Seminal diary about the filibuster).

As I’ve noted in at least one comment in a thread in which you participated, letsgetitdone (the same El Duderino diary), there is no definitive proof that what you call the “move the previous question” rule in the very early Senate was what you describe. Instead, there is at least equal contemporaneous evidence that it was in fact a rule to allow the Senate to postpone indefinitely a measure, by “moving it” off the Senate’s pending business agenda. Source? Your favorite “Constitutional scholar” advocates of the Frist “nuclear option” – Gold and Gupta (the co-authored paper; though it’s perhaps also in the Gold book you cite).

The Senate took [Burr's] advice and evidently neither Burr nor the Senators understood that they were opening up the Senate to the possibility of unlimited debate without recourse.

I give them a lot more credit for knowing exactly what they were doing in 1806, and why, than I do those who use that tenuous claim today to advance a “nuclear option” argument that would blow up unwelcome or inconvenient existing rules without first changing them as the rules provide.

Actually, there was no formal and intentional adoption of the filibuster.

Aside, that is, from the adoption of Senate rules governing debate, both as originally adopted, and subsequently maintained or revised over a couple of centuries. Was all of that “illegitimate and unConstitutional” too?

In our system, an abuse of governmental power is an action taken by authorities that is contrary to the written laws, and the constitution and its implications.

Poltical Parties can’t abuse power?? I guess not, in your use-Congress-like-a-Parliament – but never mind the checks and balances – world view.

In a sense, Senate rules and precedents are the “law of the Senate” – which itself helps make the “law of the land” – and those precedents, to use Senator Byrd’s description, are akin to the “common law” of the land, which judges in this nation enforce on a daily basis.

And, as with the common law, if you want to challenge the Constitutionality of a Senate rule or precedent, do so within the rules that exist, or stop pretending that you’re reasserting some high-minded Constitutional norm on the system by first blowing the system up. Especially when you absolutely refuse to admit and acknowledge that said claimed “Constitutional norm” is already honored and reflected in the Senate’s rules and precedents for changing its rules.

Those who simply will not recognize that deploying the optional Rule 22 supermajority cloture process in the absence of a real filibuster is itself a “nuclear option” that both Parties have used to destroy the simple-majority functioning of the Senate, and instead want to further abuse the rules to “fix” the first abuse, are both ignoring the easiest and simplest solution (forcing real filibusters to replace mere threats to filibuster), and arguing in self-contradictory circles.

The rule says it is the decision of the chair if something violates the Byrd rule. By tradition he follows the advice of the parliamentarian but that is not the rule.

Who cares what “the rule” says? I thought it was up to the Chair/Presiding Officer to decide what the “rules” are? So why couldn’t he defer to the Senate Parliamentarian?

You see – that’s how “disorder” works in a legislative body. If one rule – some clear provision of the Byrd rule that both the Presiding Officer and the Parliamentarian can’t deny is a “rule” making the public option ineligible for reconciliation – can be simply waived by the Presiding Officer, all rules and precedents can similarly be waived. It’s a very dangerous, slippery slope.

And if all rules and precedents may be ignored at the whim of the Presiding Officer, why is he even bothering to pretend to decide “if something violates the Byrd rule” in the first place. The Democrats should just announce that they’ve unilaterally decided to ignore the “Byrd rule” to pass their legislation, instead of using the non-reconciliation simple-majority route that’s available to them under the rules to do so.

[The average Presiding Officer today, by the way, including the Vice President, would be completely at sea in the Chair if the Parliamentarian wasn't holding their hand every step of the way right below them: telling them when to say "The Clerk will call the roll," handing them cards with the words they need to speak next in order to conduct the basic business of the Senate, etc., etc. That didn't used to be the case, but then legislators used to be legislators, not just Party salesmen and White House-herded sheep.]

If the Democrats had no other choice, realworld, but to lower themselves to the abusive levels of the Lott Republicans (and, almost, the Frist Republicans, who did in the end hold off, if only because Democrats didn’t force the issue) in order to reinstate simple-majority rule in the Senate, I might agree with you when you say:

We are really talking about how to win in a context where the other player does not care about the rules. In such a game you do what is necessary to prevail.

But the fallacy in that argument is that Democrats have to abuse the rules and Senate precedent to enact the legislation that a simple majority of Senators wants to enact.

So aside from the destruction that a course of “they did it first” rule-violating and order-trashing by the Democrats would wreak on the Senate, and thus on our representative democracy, it’s completely unnecessary given both the large majority the Senate Democrats now have and the existing rules of the Senate.

To begin with, a clear case of a violation of the Byrd rule under reconciliation should never make it as far as the Presiding Officer by point of order. The Democrats (hopefully working through committees of jurisdiction, not from the White House) can (and should) pre-consult the Parliamentarian, to determine what’s workable, and what isn’t workable, under reconciliation on health care reform, and craft their legislation accordingly. If there’s an open question about a provision like the public option – that’s not easily answered by existing rule or precedent – then the Presiding Officer has every right to make a fresh, precedent-setting ruling on the matter (he can even ask the Senate to debate the issue before he makes a ruling one way or the other), after which an appeal can be made, and supporters of the new ruling can vote to support the Presiding Officer. That’s orderly process.

But reconciliation covers only a fraction of the legislation, and none of the nominations, that the Senate needs to act on. So resorting to reconciliation, and even manipulating its rules so as to shove health reform through a process it might not be suited for, solves nothing about the long-term operation of the Senate with regard to the majority’s abuse of the supermajority cloture process.

powwow, I said:

I think this procedure runs counter to your claim here:

…to the VP making a decision on the Constitutionality of Senate rules and procedures in response to a point of order, whatever previous Senate precedents may exist. The VP has a right to make his/her best judgment about what is constitutional and what is not.

Neither the Vice President nor any other Presiding Officer has such a right. The Senate, however, does.

Does that mean that you think this description of the nuclear option is inaccurate?

Or alternatively, does it mean that you think the Chair has no right to uphold the point of order? If the latter, I think you are in disagreement with the constitutional scholars who have outlined the nuclear option and not just with me.

And you replied:

I think this ["nuclear option"] procedure runs counter to your claim here:

Of course it does, letsgetitdone, because the “nuclear option” is a prime example of the OLC-style “thinking” I’m describing @ 20 – where we first blow up the existing rules in order to avoid changing them as the rules provide. Forever making a mockery of the concept of “precedent” or “order” in the Senate, whenever an unprincipled, power-hungry majority wants something, but can’t be bothered to use the current rules to get it. [Frist's "nuclear option" boys on the Senate Rules Committee being kissing cousins of Bush and Cheney's "Constitutional scholar" boys and girls in the OLC.]

Does that mean that you think this description of the nuclear option is inaccurate?

Not at all, as should’ve been clear from my long comment to you [trying to warn you about the future of a post-explosion Senate, given the absurdity of the use of future points of order (as opposed to "points of power") in such a Senate], replying to one of yours, that included and quoted those same #1-7 points (in El Duderino’s recent Seminal diary about the filibuster).

In relation to the first part of this reply you’re just begging the question. Earlier, @24 I said:

The real heart of powwow’s argument is the view that the rules and precedents of the Senate should be respected more than challenges to them on grounds that they are contrary to the written constitution. This is what his claim that a successful execution of the nuclear option would be an abuse of power really means. This makes no sense to me. In our system, an abuse of governmental power is an action taken by authorities that is contrary to the written laws, and the constitution and its implications. On this standard, it is the use of the precedents sustaining the filibuster and the filibuster itself that are abuses of power. But current attempts to get around it, or even to get rid of it with the nuclear option are no more than efforts to redress the constitutional balance.

So, the question you’re begging is the question of whether the nuclear option is constitutional? If it is, then its use can’t be an abuse of power in any sense of that term that is meaningful within the bounds of the Constitution. So, in calling it an abuse of power, what you’re really saying is that it is not constitutional. And here we just disagree and will continue to do so, because I will never accept that traditions and precedents developed by the Senate trump the language and logical implications of the Constitution.

In relation to the second part of the above reply, you say that my account of the nuclear option is accurate. Fine. Then point 2) which says:

The presiding officer of the Senate, most often the Vice President of the United States, makes a parliamentary ruling upholding the point of order and citing the Constitution of the United States, rather than previous Senate precedents (upholding the right of unlimited debate) as the legal basis supporting the ruling.

is in contradiction with your earlier claim that:

Neither the Vice President nor any other Presiding Officer has such a right. The Senate, however, does.

That is, clearly, the VP does have the right to rule on the Constitutional question, and then it is up to the Senate to override his/her ruling after an appeal to the Chair.

BTW, I agree that:

there is no definitive proof that what you call the “move the previous question” rule in the very early Senate was what you describe. Instead, there is at least equal contemporaneous evidence that it was in fact a rule to allow the Senate to postpone indefinitely a measure, by “moving it” off the Senate’s pending business agenda.

I never said there was definitive proof. In fact, I said I thought that the Senate didn’t understand the significance of junking the rule, and that neither did Aaron Burr. However, I don’t rely on whether or not the Senate understood what they were doing, because my claim is that in either case, they acted unconstitutionally since repealing a rule that could have been used to shut off unlimited undermined the clear language of the Constitution committing the Senate to majority rule.

You said further:

In our system, an abuse of governmental power is an action taken by authorities that is contrary to the written laws, and the constitution and its implications.

Poltical Parties can’t abuse power?? I guess not, in your use-Congress-like-a-Parliament – but never mind the checks and balances – world view.

What I said referred to Governmental power not Party power. Of course parties can abuse their power. They do so all the time. But majority rule in the Senate, in line with the written constitution, is not an abuse of the power of political parties. And while we’re at it, I do confess to the view that I think the United States would be more adaptive without any sacrifice of our basic freedoms if it were closer to a parliamentary. I believe that for a simple reason, and that is that many other industrial nations that have parliamentary systems have no less freedom than the United States, and perhaps more when we take into account the increasingly arbitrary powers of the Executive Branch here. In addition, the parliamentary democracies also seem to be much better at achieving social and economic justice than we have been over the past 40 years. I think the relative paralysis we see in our legislative branch, which, I believe, is due to the excessive power of each individual Senator to say “no” to legislation, is partly responsible for that poor performance.

You also say:

In a sense, Senate rules and precedents are the “law of the Senate” – which itself helps make the “law of the land” – and those precedents, to use Senator Byrd’s description, are akin to the “common law” of the land, which judges in this nation enforce on a daily basis.

And I quite well understand this powwow, but just as “common law” doesn’t trump the written Constitution, or even positive law passed by the legislature, neither do Senate rules and precedents trump the Constitution, even if they are used to help make the law of the land.

You say further:

And, as with the common law, if you want to challenge the Constitutionality of a Senate rule or precedent, do so within the rules that exist, or stop pretending that you’re reasserting some high-minded Constitutional norm on the system by first blowing the system up. Especially when you absolutely refuse to admit and acknowledge that said claimed “Constitutional norm” is already honored and reflected in the Senate’s rules and precedents for changing its rules.

Well, once again, powwow, we’re back at our starting place, at the heart of your argument. You insist on privileging “rules that exist” even though the constitutionality of those rules and precedents is exactly what is at issue. That’s why this argument can’t be settled by logic. You believe the Senate rules should be privileged because they were developed over many years and embody a system that is worth preserving. I believe that that system (the Senate) hasn’t worked well for the people of the United States for 40 years now, and that further its rules and procedures, especially the ones that give inordinate power to individual Senators, are unconstitutional when set against the provision for majority rule in the Senate written into the Constitution,. And now, you and I are just going round and round in circles. It is up to the Senate to settle the question.

powwow, This argument reminds me of the Domino Theory during the War in Vietnam. If one of the dominos falls all of Southeast Asia will fall. That was nonsense and so is this. If the VP rules to uphold a point of order calling for a vote on constitutional grounds in the context of the nuclear option, then that may result in end of unlimited debate. But that doesn’t mean that every Senate rule would be abrogated by the majority, simply because there may be no majority to overturn many of the other rules and precedents of the Senate.

That is, a majority may exist to table an appeal from the Chair and so unlimited debate for good. But, it doesn’t follow that all rules and precedents will be abrogated.

you didn’t offer a conjecture, opinion or your understanding. you made a statement of fact. imo your statement of fact is actually a strawman and i don’t have the patience powwow does to keep trying to correct that.

Powwow I literally can understand your logic. Nothing says the parliamentarian is a lifetime appointment. Nothing says the Chair can’t disagree and decide based on his own judgment something does not violate the Byrd rule. Both have been done before so there is precedent for both.

What I find extreme strange is that a previous post you said Democrats should force a stand up filibuster you argued for a much bigger violation of Senate precedent. You wanted the chair to declare quorum calls a speech under the two speech rule, something which would violate over a century of precedent. Of course forcing a stand up filibuster which eventually runs out of times to speak on a bill is impossible. There is the right of unlimited amendments and motions. Each senator can only speak twice in a day about a debatable question, yet they can just offer more amendments to get more times to speak.

So you are calling for a violation of precedent for your solution.

Of course the constitutional option to change Senate rules at the beginning of a new Congress with a simple majority vote also has precedent. So I’m only asking Senate to do what it has done before.

http://www.senate.gov/CRSReports/crs-publish.cfm?pid='0E%2C*P%2C%3B%3F%22%20%20%20

…you argued for a much bigger violation of Senate precedent. You wanted the chair to declare quorum calls a speech under the two speech rule, something which would violate over a century of precedent.

in addition to my request @25 (and powwow’s @29) for your source reference, which you have apparently ignored, i’ll add another request for a link here. can you back up this claim with an actual link and quote from powwow?

the reason i ask is that i think you may be mistaken about this one too — i don’t recall every seeing such a thing and i’ve tried to read all of powwow’s comments. of course i could have missed it or be misremembering, but if that is the case surely you can provide the link just to make sure it’s not you who is mistaken?

p.s. your link doesn’t work, which crs report are you referring to? (and a quote and page number would be helpful also, thanks)

““Entrenchment” of Senate Procedure and the“Nuclear Option” for Change: Possible Proceedings and Their Implications”
———-

The Senate initially adopted the motion to table the point of order, thereby endorsing the position
that a majority could limit debate in relation to a rules change proposal. By this action the Senate,
in effect, accepted for the first time the procedural claim of proponents under the rulemaking
power. This action might be expected to have led to an immediate vote on the motion that had
been held in order. Opponents, however, then demanded a division of the question on the
combined motion, so that its first part, the motion to proceed, would be considered separate from
its second part, embodying the procedural prescription that the motion be decided by a simple
majority without debate. This division destroyed the self-referential character of the procedural
prescription. As a result, the Vice President held the motion to proceed, the first part of the
original package motion, to be debatable. Opponents then undertook extended debate on this
motion to proceed.52

To overcome this difficulty, supporters of change ultimately agreed to accept a proposal under
which the Senate would vote on a compromise proposal to strengthen the cloture rule, but also on
reconsidering the tabling of the original point of order. The Senate adopted the motion to
reconsider, and, on reconsideration, rejected the motion to table, thereby bringing the original
point of order back before the Senate. The Senate then voted to sustain the point of order, thereby
reversing its endorsement of the claim that a simple majority had authority to limit consideration
of rules change proposals.53

—————It is fun Powwow keeps quoting Byrd. Byrd was famous for his use of points of order to create new precedent to break filibusters.

http://www.law.harvard.edu/students/orgs/jlpp/Gold_Gupta_JLPP_article.pdf

it was your broken crs link i was asking for as i’d like to know if i’ve missed an important relevant crs report.

also, and most importantly, i’m still hoping for a response to my requests @25 and @37 for your references/evidence because in both of those cases i think your assertions are wrong and i’d like to get that cleared up either way.

less importantly, would it be possible to dispense with the attempts at point scoring (the snipe re byrd for example, which just calls out for a return snipe regarding you quoting frist’s floor advisor and counsel) while we’re trying to figure out and get the best and most accurate info we possibly can to clear up as many questions as we possibly can? i’d like to think that, at least, is a shared goal.

selise, Statements of fact are not facts. The facts are what they correspond to. The statements are all conjectural in nature. You may benefit from reading this one. It’s really a compilation of three separate pieces. The one called “Knowledge Without Authority” is the one I mean to refer you to. It argues that all knowledge is fallible and conjectural. So, again, statements of fact are conjectural and this article should make clear why this is so.

Sorry about the link I gave @ 41. It should have been this.

Here also is a cleaner one providing only “Knowledge without authority”

no thanks. i have no desire to learn justifications for repeatedly mischaracterizing the arguments of others while refusing to provide supporting evidence or information of changing assertions with appeals to authority, conventional wisdom and rationalizations that had something to do with me not being minimally politically sentient at the age of 4. i’d rather focus what few brain cells i have on attempting to further understanding instead of derailing it.

especially as my ability to stay on focus instead of getting side tracked by unrelated matters apparently does suck. so, i’ll attempt to get back on track now by getting back to my comment @40 and highlighting once again the most important point (of the three) from that comment to jon. i want to make sure he has no reason to miss it:

comment to jon:

most importantly, i’m still hoping for a response to my requests @25 and @37 for your references/evidence because in both of those cases i think your assertions are wrong and i’d like to get that cleared up either way.

Saying that I mis-characterize the arguments of others again and again won’t get you anywhere until you can show that this is true. I don’t think you have, but since I can’t seem to persuade you that this is true, I’m content to leave it to others who have observed our recent exchanges to make that judgment for themselves.

In any event, charging me with mis-characterization isn’t an answer to my statement that:

Statements of fact are not facts. The facts are what they correspond to. The statements are all conjectural in nature.

in reply to your:

you didn’t offer a conjecture, opinion or your understanding. you made a statement of fact. imo your statement of fact is actually a strawman and i don’t have the patience powwow does to keep trying to correct that.

Finally, my “statement of fact” about the heart of powwow’s argument is made again @33 above right after a quote from powwow’s reply. I think that quote shows that I am right about what the heart of his argument is. And, in fact, his earlier replies in this thread or his replies previously, have done nothing to dispel my interpretation. Further, I have yet to see a reply from either powwow or yourself to my reply @33, and I see that you prefer to demand certain replies from Jon. That’s fine.

However, I think the central issue here is whether the filibuster is unconstitutional, when viewed against the backdrop of the written constitution, despite Congressional practice since the 1830s, and whether the VP would be abusing his/her power to so rule in response to a point of order, knowing that an “appeal from the Chair” could be tabled by a simple majority vote.

Oh, one last thing, the link I gave you is short and also completely supportive of the view that one can’t “justify” knowledge through reliance on authority. So, if you read it, the next time I you think I’ve appealed to authority in a debate, you’ll be able to hit me over the head with it.