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This sort of thing makes me even more annoyed that spammers make trackbacks more trouble than they're worth

by Prometheus 6
May 17, 2005 - 9:02am.
on Politics

Jeffrey King of Three Bad Fingers wrote up a response to insistence that Vice President Cheney can't simply declare cloture requires a simple majority.

His logic is sound, save one fatal error: the Senate has no constitutional ability to encumber future Senates with their procedural rules. As such, the Senate Rules Prometheus 6 cites are invalid and unenforceable.

This is wrong on so many levels...Let's see how many level I have time to deal.

Jeffrey cites Erwin Chemerinsky (with whom he seems impressed enough to provide six-seven links to his bonafides...you may get said links from Three Bad Fingers if that's the sort of thing you need to see).

The conjunction of Rules V and XXII does exactly what all of these cases say that the Constitution forbids: it allows one session of the Senate to bind later sessions to its procedure for approving legislation.

I don't know the context in which this argument was presented. I do know the situation it describes does not obtain at the moment.

Standing Rules of The Senate
RULE V
SUSPENSION AND AMENDMENT OF THE RULES

1. No motion to suspend, modify, or amend any rule, or any part thereof, shall be in order, except on one day's notice in writing, specifying precisely the rule or part proposed to be suspended, modified, or amended, and the purpose thereof. Any rule may be suspended without notice by the unanimous consent of the Senate, except as otherwise provided by the rules.

2. The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.

See? The rules stand unless they decide to change the rules. How binding is that?

Not. At. All.

Since it is the conjunction of the two rules that gives the appearance of a problem, I could stop there, but I won't. Because the argument is actually absurd on its face. It would require rules for approving legislation to be established at the beginning of every legislative year. As much as I'd like Republicans to make that suggestion to a public that already suspects them of manipulating the rules whenever they think they might lose, I wouldn't advise it.

Not to mention that the rules and procedures don't address approving legislation...that is established in the Constitution.

Rule XXII effectively extends a supermajority requirement to the passage of any measure before it, including proposed rule changes.

Obviously Mr. Chemerinsky has a sense of humor. Check the rule and you'll find out only one thing is considered by the rule is:

  1. the types of motions that can be entertained
  2. the procedure by which debate can be terminated

So declare this rule unconstitutional if you like. It will remove any method of terminating debate. As I said before, this isn't a filibuster rule, it's a cloture rule.

Okay, gotta go. But I'll be back...

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Submitted by Jeffrey King (not verified) on May 17, 2005 - 2:32pm.

P6,

For clarification, Erwin Chemerinsky is a constitutional lawyer, from the left bank of the libral mindset.  He is a law professor at Duke and argued at least two cases before the Supreme Court last year (including the three strikes case and a ten commandments case).  His quote came from a 1997 article published in the Stanford Law Review titled "The Filibuster".  The full article can be read here: http://eprints.law.duke.edu/archive/00000772/01/49_Stan._L._Rev._181_(1996-1997).pdf.

I also provided a link to a quote from the Senate Floor in 1979 by Senator Robert Byrd (also from the left bank of the libral mindset), which directly contradicts your assertion.

Lastly I provided a link (http://www.threebadfingers.com/wp-content/Gold_Gupta_JLPP_article.pdf) to this article from the Harvard Law Review titled "The Constitutional Option To Change Senate Rules and Procedures: A Majoritarian Means To Overcome The Filibuster."

All three of these sources are very credible, and not easily dismissed.  All three call into question your assertion that Senate Rules can not be changed by a majority vote.

Respectfully,

Jeffrey King

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Submitted by Prometheus 6 on May 17, 2005 - 2:57pm.

The credentials of the person presenting an argument mean nothing.

Rule V simply does not bind future Senates. The rule explicitly states future Senates can choose to change the rules...by following the procedure to do so.

This is real basic rule-of-law stuff.

By the way, I think your "e" key is stuck. 

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Submitted by Jeffrey King (not verified) on May 17, 2005 - 5:05pm.

P6,My left middle finger was one of the three amputated by my table saw last summer. (thus ThreeBadFingers) While the doctor reattached them, its functionality is unsatisfactory.  It is also the finger that types "e"s.  I apologize for my sloppiness.Rule V is off topic.  Rule XXII clearly binds future Senates.  The Constitution allows each Senate to set its own rules by majority vote.  No senate rule can override this Constitutional standard by imposing a higher standard to change last sessions grandfathered rules.  This is basic rule-of-law stuff, well founded in case law, as a thorough reading of Professor Chemerinsky's article reveals.  Dismiss it if you will, but it is an applicable article by a well credentialed source.You have also wholly ignored the Senator Byrd quote and the Harvard Law Review article.  It seems that no evidence, regardless of its sourcing or its authors’ credentialing is of enough significance to supplant your findings.

I've run spell check on this comment, so hopefully it meets a higher standard than the last.Respectfully,

Jeffrey King

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Submitted by Prometheus 6 on May 17, 2005 - 7:03pm.

My left middle finger was one of the three amputated by my table saw last summer.

Oof. I thought is was one of those "libruls" things because it was so consistant. Otherwise I wouldn't have mentioned it. Hell, I do that once in a while without the legitimate excuse. 

Rule V is off topic.

Your witness raised Rule V, and in fact said it was the conjunction of V and XXII that is the problem. If Rule V is off topic that undermines your argument completely.

The Constitution allows each Senate to set its own rules by majority vote.  No senate rule can override this Constitutional standard by imposing a higher standard to change last sessions grandfathered rules.

And that hasn't been done. But the Constitutional standard applies to the laws of the land, notthe rules of the Senate.

Yes, they can set their own rules by majority vote. They have, in fact, done so.

So as I said, you can cancel out Rule XXII if you like because that doesn't eliminate unlimited debate...it eliminates the method of terminating the debate. Read the rule for yourself.

You have also wholly ignored the Senator Byrd quote and the Harvard Law Review article.

I said I'd be back...and by now you see I've done no such thing.

It seems that no evidence, regardless of its sourcing or its authors’ credentialing is of enough significance to supplant your findings.

Not when their reasoning is flawed.  

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