Don't like the rules...? Just Change 'em

With the battle over the filibuster heating up in the Senate, understanding a few of the Senate rules that Senator Frist's, and the Republican leadership, will be breaking in the "nuclear option" in its implementation.

Senate Rules and Precedents That Would be Broken Through Exercise of the Nuclear Option

Violation # 1. Rule V: The Senate must follow its Rules to amend its Rules
Paragraph 2 of Rule V states expressly that “Rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these Rules.” (emphasis added). The proposed nuclear option is a deliberate end-run around the Senate’s regular process (discussed below) for amending its own Rules because Senator Frist does not have the strong bipartisan support he needs in the current Senate to follow the regular order.

Violation # 2. Rule V: Suspending the Rules without amending them.
The Senate Rules provide expressly for the sole mechanism to suspend the Rules without amending them. Under Rule V, paragraph 1, the Senate may only suspend its Rules either by unanimous consent or by adopting a motion to suspend the Rules. Adoption of such a motion requires a 2/3 vote of Senators present.3 The nuclear option, by relying on a simple majority vote to change the Rules without changing the text (arguably a kind of suspension), clearly violates the 2/3 vote requirement.

Violation # 3. Rule XXII: Violating the process for changing the Senate’s Rules.
Paragraph 2 of Rule XXII establishes the requirements for ending debate on a proposed change to the Senate’s Rules. Under Rule XXII, a cloture petition signed by sixteen Senators must first be submitted to the Senate. The vote to invoke cloture (end debate) on amendment to the Rules cannot be held until 2 days after the cloture petition is filed, and the rule provides that 2/3 of Senators present and voting must consent to end debate.

Violation #4. Failing to submit a constitutional Point of order to the Senate.
Proponents of the nuclear option purport to justify their unprecedented approach by invoking the U.S. Constitution – to the point of trying to rename the nuclear option the “constitutional option.”4 Some have even argued that the filibuster of judicial nominations is unconstitutional, and that the Senate can therefore ignore its process for amending the Rules to eliminate it.5 Under long-established precedents of the Senate, when a point of order with an asserted constitutional basis is raised, the Chair does not rule on the point of order but instead submits it directly to the full Senate.6 However, such a point of order is debatable and it would take 60 votes to end debate on the constitutional point of order and bring it to a vote. Because it is not clear that Senator Frist has 51 votes for the nuclear option – much less 60 – it is likely that Vice President Cheney will rule directly on Frist’s “constitutional” point of order, violating Senate precedent.

Violation # 5. Rule XXII: Ending debate on a nomination.
The text of Paragraph 2 of Rule XXII expressly requires 60 Senators (3/5s of Senators duly chosen and sworn) to vote to end debate on “any measure, motion, other matter pending before the Senate,” including a judicial nomination. If the nuclear option is successful, and for the first time in our history Senators’ right to debate is ended by simple majority vote, this will constitute an express violation of Rule XXII’s 60 vote requirement. In essence, Rule XXII would be changed, but not in a manner provided by the Rules of the Senate.

Violation # 6. Overriding the Senate’s Parliamentarian
The Senate Parliamentarian is the officer charged with keeping the precedents of the Senate and advising the presiding officer of the Rules and precedents of the Senate if a point of order is raised from the floor. The current Parliamentarian, Alan Frumin, has worked for that office as either Parliamentarian or assistant Parliamentarian since 1977 under both Democratic and Republican majorities. It has been widely reported that the Senate Parliamentarian will advise the chair that any point of order to force a simple majority vote to end debate on a nominee would violate the Rules and precedents of the Senate. Therefore, for the nuclear option to succeed, the presiding officer, most likely Vice President Cheney in his role as President of the Senate, would have to ignore the advice of the Parliamentarian in ruling on a point of order. According to the nonpartisan Congressional Research Service, such an action would “constitute an extraordinary proceeding involving peremptory departure from the established system of Senate procedure.”7

Vice President Cheney will need to ignore the Parliamentarian to invoke the nuclear option because Republicans must engineer a scenario where, as stated above, nuclear option opponents appeal a ruling of the chair endorsing the nuclear option. Frist must ensure that opponents appeal because the appeal itself is debatable, while a motion to table (kill) the appeal is not debatable. If Republican leaders try to overturn an adverse ruling by the chair through their own appeal (which would occur if the chair follows the parliamentarian), opponents could simple filibuster the appeal and a motion to table the appeal would set the opposite precedent than Frist wishes to achieve.

It should be apparent to all by now, that the Republican leadership in Congress and the White House consider themselves to be above and beyond any rule or law. Those that they find inconvenient or obstructive to their agenda, they try to change. In the House, the Republican leadership tried to change the ethics rules to benefit Tom DeLay, given the possibility of his indictment in Texas. The Republican leadership in the Senate is attempting to change rules which allow a principled minority to stand up to the tyranny of the majority. The Administration has changed rules on air and water quality, workplace safety, Medicare, bankruptcy, etc. because they were inconvenient to campaign contributors, thus to the money flowing into Republican pockets.

The Republican leadership in this nation preach about the virtues of ehtics and values. The reality, however, is that they lack any ethics and value only that which tightens their grip on power. They are the greatest threat the Republic now faces...not from terrorists...not from "activist judges"...not from permitting the marriage of same-gender couples. They, not some outside enemy, will be the death of the Republic.

We have met the enemy...And he is us! - Pogo