The left has been messaging for over a year that the Senate should abolish the filibuster. They now are desperate to seize complete control of one chamber of the federal legislature so they can play defense against Speaker of the House John Boehner’s (R-OH) conservative agenda and lock Senate Republicans out of the legislative process. Now is the time and the liberals are ready to pull the trigger of what some call the “Nuclear Option” to restrict the rights of individual members of the Senate to engage in extended debate.
Liberals in the Senate are ready for high noon today as the moment for them to start a procedural fight to chip away at the filibuster. They hope this ploy will result in a successful power grab. Liberal Senators and allies on the left have been preparing for months for this moment so they can strong arm through the Senate a change in the rules that will grant them complete control over the Senate’s agenda.
Expect liberals in the Senate to offer a resolution to lower the threshold to shut off debate. They plan on arguing that the Senate is not a continuing body, notwithstanding the fact that the Senate’s rules state otherwise. They are intent on forcing through this change to the rules with only a simple majority of Senators. This ploy is a violation of the constitutionally authorized rules of the Senate and may be an unconstitutional power grab.
I wrote almost a year ago on Big Government that the filibuster is the friend of conservatives.
If you hate big government, you should love the Senate filibuster. The filibuster serves the good government purposes of slowing legislation. This allows citizens to understand and participate in the legislative process, provides scrutiny for complicated legislation and slows the process to confirm nominees. The left absolutely hates the filibuster, because the filibuster prevents liberal Democrats from steamrolling moderate Democrats and Republicans when trying to pass legislation or confirming extremist judges with minimal debate. A veteran Senate staffer tells Big Government that “the filibuster is a tool to slow down and make people really consider things. For those that believe in freedom and limited government the less the Congress does the better.” Of course the left’s goal is to exterminate the filibuster from the Senate rules by setting the table for Senate Majority Leader Harry Reid to argue that a filibuster is unconstitutional, then for Vice President Biden to order that the rule be ignored.
Liberals are going to use a procedural tactic called the “Nuclear Option,” also known as the “Constitutional Option.” This option is merely a theory that Senators can change the rules of the Senate at the beginning of a new Congress. They claim that the Senate functions under anarchy until the Senate operates under the old rules. This theory allows for a simple majority of Senators to expunge the filibuster rule from the Senate’s rule book — even though the explicit rules of the Senate mandate that they need 67 votes to shut off debate on any rules change. This power grab by the left may be unconstitutional, because it tosses aside constitutionally authorized Senate rules. A strong case can be made that the actions of liberals in the Senate is an unconstitutional power grab.
The Constitution empowers the House and Senate to establish rules of procedure. Article I, Section 5 of the Constitution states that “each house may determine the rule of its proceedings.” This provision in the Constitution empowers the Senate to make rules governing debate.
The Senate in 1917 established the cloture rule requiring a 2/3rds vote of all Senators present and voting to shut down debate after years of not having a means to shut down debate. Senate Rule 22 today states “invoking cloture on a proposal to amend the Senate’s standing rules requires the support of two-thirds of the Senators present and voting.” The clear letter of the Senate’s rules mandate a supermajority vote to stop debate on a change to the Senate’s rules.
The Senate’s rules further state that the Senate is a continuing body. According to Marty Gold and Dimple Gupta’s Harvard Law Review article titled “The Constitutional Option to Change Senate Rules and Procedures: Majoritarianism Means to Over Come the Filibuster,” Senate Majority Leader Lydon B. Johnson’s (D-TX) proposed a compromise in 1959 to make it easier to shut down debate and affirm that the Senate is a continuing body. Senator LBJ’s proposed compromise was the following:
Rule XXII would be amended to reduce the required vote for cloture to “two-thirds of the Senators present and voting,” and, in order to assuage the worries of Senators who opposed the constitutional option, a new clause would be added to the Senate Standing Rules holding, “The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.”
The Senate is set up as a continuing body. Our Founders set up the Senate with staggered 6 year terms and only 1/3rd of the Senate is up for election every two years. Our Founders set up the Senate to be a far different body than the House of Representatives. The length of terms and mandate that every state, regardless of size, gets two votes is evidence that our Founders wanted a Senate to be far different from the House.
The facts are that the constitution authorizes the Senate’s rules. The Senate’s rules confirm that the Senate is a continuing body and that it takes a 2/3rds vote to shut off debate on a rules change.
The so called “Constitutional Option” is arguably unconstitutional.
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