The GOP's 2pm Senate Shutdown: An Opportunity To Start Rewriting Senate Rules?

If the GOP keeps this up, I'm beginning to think there's some really great lemonade that can be made out of these lemons.

The idea here is to use the current bit of GOP obstruction as a way of re-establishing the Senate majority's right to rewrite its rules, over an issue that nobody outside the Beltway could possibly get exercised over, and that even the Villagers can't get too worked up about without sounding even more silly than usual.

Suppose the GOP, under section 5a of Senate Rule 26, keeps on shutting down all Senate committees at 2pm each day for the rest of this week, and into the beginning of next week.

Then suppose it goes like this: after another GOP refusal to consent to the normal order of committee business, Harry Reid decides to hold a vote on changing Section 5a of Rule 26 so that the minority can't shut down the business of the Senate on a whim. 

The GOP protests, but Reid invokes the Senate's authority to set its own rules under Article I, Section 5.

The parliamentarian rules against Reid, but VP Biden, called in to chair the Senate for just this purpose, overrules the parliamentarian.  A vote is held to amend Rule 26, it passes by a simple majority, and from then on, nobody asks for unanimous consent to hold committee meetings as usual because nobody needs it.

So how would things fall out in the court of public opinion?

Fox and Rush and all would make a hullabaloo over the 'nuclear option.' 

Reid, Biden, et al would calmly go on the Sunday shows and reply that, "wasn't budget reconciliation supposed to be the nuclear option?  Oh, that was last week.  You know those Republicans - always calling something the 'nuclear option.'  Heck, just five years ago, they called something or other the 'nuclear option' that they were trying to push through - remember what that was about?  Slipped my mind for the moment."

"Besides, we're not trying to do anything nuclear; we're just trying to make sure that the minority party can't shut down the business of every single Senate subcommittee every time they get their panties in a wad.  You've probably noticed that we have business we really need to accomplish, and we can't just knock off at 2pm every time someone throws a hissy fit around here."

The GOP also might well raise the specter of the Dems getting rid of the filibuster.

Same sort of response: calm, patient, a little bit weary.  "Filibuster?  Nah, we're just trying to hold regular committee meetings.  Maybe the Republicans have a point - maybe the filibuster really does have some problems - but right now we just want to be able to hold committee meetings, and be able to work until 5pm like most of our constituents have to."

And the public at large can't get particularly concerned, the Dems get to hold committee meetings whether or not the GOP likes it, life goes on, and the precedent is established.  Then when the Dems rewrite the filibuster rules at the beginning of the next Congress, it'll be "what's the big deal - we did the same sort of thing last year."

I know, it won't happen.  But a more opportunistic party would see an opportunity here

Comments

[Corvus9]

l-t c, I think the reason it won't happen is that rule changes in the middle of a Congress require a two-thirds vote in order to pass. Maybe I missed it, but I didn't see you mentioning any ways to overrule this hurdle in your post.

However, at the beginning of each new Congress, the Senate has the change to change any or all rules by simple majority vote. All that needs to happen is that the Vice President, acting as presiding officer, and 50+1 members can make the rules whatever they want.

And I think reforms, maybe even massive reforms, are basically a done deal at that point. The only reason I think these latest shenanigans aren't a tipping point is because I think some previous set of shenanigans was the tipping point; say, the Bunning Shutdown, or the Shelby Holds. What we are into now is the intensifiers. You can almost think of the next few months as the Republicans helping the Democrats out, showing them all the pointless points of obstruction that need to be eliminated.

It seems to me the Democrats are just livid at their Republican colleagues now. There may be some individual relationships that are still steady (Wyden and Gregg seem to be capable of working on tax reform together; I suppose Kerry and Graham are capable of getting along), but the overwhelming feeling of dems towards the repubs must be disgust. It is blatantly obvious now that they are holding up senate business for partisan gain, which is to say, they are delaying the business of the country to try to get their colleagues to lose their jobs. That is not only callous towards the american people, it is vindictive, and I think the Dems are all starting to pick up on it. Whether it's things like moderate McCaskill begging to let her committee hearing go through, or just the increasingly angry tone Reid takes in all his responses to McConnell, or Bayh's expressions of disgust, the dems, it seems to me, are more than willing to change the rules once they get a chance to do it all on their own.

[low-tech cyclist]

l-t c, I think the reason it won't happen is that rule changes in the middle of a Congress require a two-thirds vote in order to pass. Maybe I missed it, but I didn't see you mentioning any ways to overrule this hurdle in your post.

However, at the beginning of each new Congress, the Senate has the change to change any or all rules by simple majority vote. All that needs to happen is that the Vice President, acting as presiding officer, and 50+1 members can make the rules whatever they want.

Actually, the claim that, with respect to changing Senate rules, there's a difference between Day 1 of a new Congress and any other day is (a) not found in the Constitution or the Senate rules, and (b) completely untested.

I'd agree that there's a somewhat stronger argument for changing rules by majority vote on Day 1 of the new Congress, all other things being equal. But right now, they're not.

This is a process story, and unless there's a way to get the public to care, a process story just kinda lays there and quietly dies, which is what you'd want if you're making a fairly radical break from the past.

So when is it more likely to quickly die, now or next January?

I'd say now, for the following reasons:

1) Right now, the GOP is using Senate rules in a way that doesn't just look incredibly stupid to us politics junkies, but would be pretty hard to justify to ordinary Americans who don't pay much day-to-day attention.

2) The GOP has just been crying 'wolf' a great deal on both policy (Armageddon! socialism! totalitarianism!) and process (nuclear option! reconciliation! demon pass!). It's a good time to bet on people not listening to the GOP if they wave their arms madly about some obscure point of process.

3) There's a lot of other issues in play right now: immigration, climate change, financial regulation. It's gonna be unusually hard for a process issue to dominate the news cycle.

4) Plus most people are probably more tired than usual of politics right now, after the interminable health care wrangle.

5) And you've got the Final Four coming up, and baseball's opening day. People are starting to get outdoors and do stuff.

6) Even the Villagers will have a hard time making this any worse than "shame on both sides."

7) Next January, the new Congress will be a topic of discussion in and of itself. People will be back from the holidays, and all of a sudden the Dems are doing some weird shit to get rid of the filibuster. It wouldn't be that hard to sell the story that it's bad to get rid of the filibuster, and that nobody's ever done this procedural thing before, so the Dems are on the wrong side.

8) Right now, there are 59 Democrats in the Senate. By January, that number will be smaller, in all likelihood. However many we start with, we need 50 of them to vote for the rules change. 50/59 looks easier to me than January's prospective 50/55 or 50/52.

9) I don't really think reform's a done deal next January. For one thing, it's just too far away in a rapidly changing political environment to be certain of anything. Second, if too many Dems lose this fall, they really might not have the votes for reform, even if (as I expect) they're still in the majority. Third, it really will feel kinda fishy if they do filibuster reform when their majority has been whittled down to almost nothing: it'll look as if they're trying to turn 51 or 52 into 60 by trickery.

10)If Senate Dems are ready to throttle their GOP counterparts right now, then now's the time to take advantage. They may cool down by January.

And on the wait-til-January side, all I can see is the argument that the Senate's at its low ebb as a continuing body at that point: that it is a more or less new Senate, it hasn't yet implicitly agreed to the 1975 rules, and is therefore free in a way that it is at no other time to write its rules from scratch, and pass them by straight majority vote.

It's a decent argument, but I think it's less important than the combination of votes, political will, and whether the GOP can get anyone to care.

[Corvus9]

l-t c, I am fairly certain I have read on numerous occasions that changing the rules of the Senate in the middle takes a 2/3rds vote, including coming from Harry Reid.

[low-tech cyclist]

Corvus, people have said it, but here's what they're effectively saying:

1) That the theory of the Senate as continuing body that always needs a 2/3 vote to change the 1975 rules, which has been the accepted theory for decades, is bunk;
2) That once a new Congress has gotten underway, the Senate's implicitly agreed to the 1975 rules, so it needs a 2/3 vote to change them; but
3) At the beginning of each Congress, there's a moment where it hasn't yet implicitly agreed to the 1975 rules, and would be free to change them by majority vote.

But that's just a theory. There's nobody to say whether it's right or wrong besides the players themselves: the Senators, the parliamentarian, and the VP - and the VP can overrule the parliamentarian, who has no official standing, just a tradition of being heeded.

50 votes and the willingness of Biden to overrule the parliamentarian. That's what it takes to change the rules, whenever it's done. The rest is just PR.

[Prup (aka Jim Benton)]

I don't think it is that simple, because of the respect for the 'traditions of the Senate' that many Democrats still hold, and because it would fuel the anger of the right and give Republicans a convinciung-sounding argument. I think a better use of the suggestion would be to attempt to pass -- with your technique -- two rules, first the Harkin-Lieberman 'modified cloture rules' (actually I would change the bill so the follow-up cloture rules come 48 hours apart, and add a provisio allowing a vote, if the first vote fails, in which a majority can temporarily set aside the two-track system and make the pending legislation the only one that can be worked on) and then a bill limiting 'unanimous consent' perhaps making it so that a number of objections are needed, not just one.

I think the Democrats would have a much stronger case by allowing filibusters, but limiting them to real debate, not just allowing the threat to kill legislation, and by making them possible to end after a period of time.

[Stan Denski]

Anything that can foreground the image of the GOP as the party of whining crybaby losers who have absolutely no ideas other than a rehash of the ideas that got us into this mess in the first place is fine by me.

[Sir Charles]

I assure you that no one outside of Fred Hiatt's scribble page gives a fuck about the Senate rules. If something can be done, the Dems should just do it. The electorate will not care.

[Corvus9]

Wrong. The wingnuts will care, if the republicans tell them two. I have already heard people at work talking about how unconstitutional the healthcare bill is.

[low-tech cyclist]

I think people can be made to care about Senate rules, but only if they're hooked to something more significant and recognizable.

But even if Glenn Beck can convince his viewers that the Senate Dems have raped the Senate rulebook and procedures, it's going to be hard for even them to be worked up if all it means is that Senators can have committee meetings in the afternoons, without having to worry about whether a single dog in the manger is going to send everyone home.

Corvus, I don't think the healthcare bill is comparable. For one thing, it's big and important - even if it's not nearly as big as the wingnuts have been led to believe. For another, it's been the main focus of our politics for a year. Numero three-o, they've been told it's totalitarian, and socialist, a government takeover of one-sixth of our economy, and the end of freedom as we know it. So when they're also told it's unconstitutional, why would they not believe it? It has to be, right?

But with this Senate thing, it's hard to see their brains being able to hold together the pieces of why they're supposed to be mad, long enough to call their Senator and complain. Hell, it even makes my eyes glaze over.

Prup, my proposal here is that this shouldn't be about the filibuster at all. This should simply be about removing the clause in Rule 26 that gives the minority the ability to engineer a near-shutdown of committee work.

The point of it is to re-establish the Constitutional authority of the Senate to set its own rules in the least controversial context possible. I can't imagine a better situation than over this particular abuse of Senate rules, at this particular time (when the GOP has already been crying 'wolf' every which way for months).

Then if Reid and Biden are willing to revamp the filibuster rules in January, the question of whether the Senate can rewrite its own rules without a 2/3 cloture vote will already be settled, because we will have done this in March or April 2010.

[Joe]

Corvus, who cares if the wingnuts get angry over this. The wingnuts will always be angry over something. They'll make something up (Like the return of the fairness doctrine) if we do nothing. I'd almost rather have them raising all hell over Senate procedure than something else. The wingnuts are never going to vote for Democrats anyway, and if we pass legislation and do the people's business, independents and Democrats will strongly approve of us.

[oddjob]

Somewhat OT, but not wholly:

Dr. Suffering violates the doctor's oath to "do no harm".

[Corvus9]

Hey, I never argued against not pissing off the wingnuts (although it's starting to look like a good idea, if only from a fear of collateral damage). My stance is more that thinking procedural issues won't piss off the wingnuts severely underestimates the the wingnuts ability to get pissed off about things. To paraphrase PT Barnum, no one has ever gone wrong underestimating the wingnuts' capacity for outrage.

If Rush tells them they should be pissed about a mid-term rules change, (assuming l-t c is right and it can be done, and I really don't know any more about that than what I have read) they will be pissed about a mid-term rules change. Count on it.

[low-tech cyclist]

True dat. After all, last year, the wingnuts believed ACORN had taken over the 2010 Census, and right now, as you say, they believe that the HCR legislation is unconstitutional.

But these sorts of things are at least intelligible (if incredibly stupid) sound bites. I just have a hard time envisioning what coherent line Beck or Rush can even feed them about something like this.

At any rate, it's probably moot. Congress is headed into its Easter recess, and who knows whether the GOP will continue its crybaby stunt once they come back.

[Corvus9]

"They're CHANGING! The RULES! They are just doing whatever they want! My friends, this, this is the first step towards fascism, if the Democrat Party is allowed to just do whatever they want, make up any rules they want, pretty soon, there is no telling what they could do. Mark my words, my friends this is, this is the FIRST STEP TOWARDS FASCISM!!!!"

It's really not that hard, l-t c.

[low-tech cyclist]

I dunno, Corvus. Your attempt, rather than convincing me, reinforces my expectation that their best efforts on this one would be pretty incoherent.

[Corvus9]

Good point, l-t c. If anything, the tea party activists are never swayed by incoherent arguments. They demand rigor and firm critical thinking as the foundation of all causes they choose to support. I humbly concede the issue.

[Corvus9]

...And I should add, your 3:49 response was so predictable I had actually thought of my 3:52 comment immediately after posting at 2:32.

[Corvus9]

Here's a recent WaPo articel, linked to by Ezra, about Freshman Senator's desires to reform the rules. It restates the two-thirds rule.

[low-tech cyclist]

Corvus, we're talking past each other; I'm not saying anything about logic. There's still a level at which either even Teabaggers have to be able to coherently and semi-consistently express what they mean to each other, or carrots sandbag yellow bismarck trolley, y'know?

[low-tech cyclist]

That op-ed does indeed restate the 2/3 rule, which is found in Rule 22 of the Senate rules. The question is of the validity of that rule, in the face of Article I, Section 5's insistence that each house of Congress gets to decide on its own rules.

Does THIS Senate get to decide by majority rule that the 2/3 rule is bunk, or is it forever bound by a past Senate that decided that its rules would forever apply unless a 2/3 majority of some future Senate voted to change the rules?

And if the former, then can THIS Senate only decide that on the first day of a new Congress, or can it do it anytime during the Congress?

'Everyone' has agreed for eons that the existing rules, last modified in 1975, but mostly far older than that, could only be changed by a 2/3 vote.

Now there seems to be a consensus shift going on, where suddenly a large number of people are saying that an incoming Senate can decide by majority vote what its rules are, but ONLY on the first day of a Congress.

I'm saying that this is all nothing more than mythology. If in 2005, the 'gang of 14' 'compromise' had never happened, and 50 GOP Senators plus Dick Cheney had decided to forever put an end to filibusters of judicial nominations, then judicial filibusters would have been no more - simply because there was no one else to judge the issue besides the Senate itself. And the same is true now, if Biden and 50 Dems decided to sink the 2pm rule. The only question is, how much screaming would happen?

Sure, some wingnuts would scream, but they'd be unintelligible - even mostly to each other, let alone the rest of the world. And Broder would harrumph too, but he'd have a hard time getting anyone to care, even if he claimed the Dems were doing something far worse than the GOP was.

[Corvus9]

Hmm, when you put it like that, it makes more sense, but in requires a high degree of outside the box thinking. I think the point with the nuclear option was that Cheney would "declare the filibuster (of judicial nominees) unconstitutional" and thus the Senate would be able to strike in from the rules. However, what you are proposing seems several steps past that, basically the Senate declaring that the Senate can change any of it's rules at will with the consent of 50 members. And I think there could be a huge backlash from that in the press, not just from wingnuts.

We are probably talking past each other, so we should probably just agree that the wingnuts are mad and that we can't agree on the shape and method of their madness.

[Stan Denski]

Curious? Did the people talking at work about how unconstitutional the HC Bill is also talk about how unconstitutional the Supreme Court decision to treat corporations as people was? And how exactly do they think it's NOT unconstitutional when a child guaranteed a right to "life, liberty and the pursuit of happiness" is ignored and refused treatment because of a pre-existing condition?