So Called Constitutional Option Is A Trick

The Senate commenced debate on a filibuster reform today.  Be aware that liberals in the Senate are using strong arm tactics to seize power.  They are using something called the “Constitutional Option” and you need to understand that this is a rhetorical and procedural trick.  There is nothing unconstitutional about the filibuster and the “Constitutional Option” is a means to ignore the explicit rules of the Senate.


Senators Jeff Merkley (D-OR), Tom Udall (D-NM) and Tom Harkin (D-IA) have started a process today they hope to result in a chipping away at the filibuster rules.  The Udall of New Mexico Resolution has been provided to the public today.  It has flaws, yet the procedure being used to railroad this resolution through the Senate is an even bigger problem.

Left wingers from the Daily Kos, Center for American Progress, Media Matters and Firedoglake have been cheerleading for a rules change for months.  (Editors Note – The Center for American Progress was against this very tactic in 2005 and has some great resources on why the filibuster is an effective “tool that empowers 41 or more senators to prevent a narrow majority from abusing its power.”)  Now lefties in the Senate have taken up a parliamentary fight to silence conservative Senators Jim DeMint (R-SC), Tom Coburn (R-OK) and Rand Paul (R-KY).  They also want to silence Republican Leader Mitch McConnell’s (R-KY) power to help his caucus to participate in the legislative process.  If these liberals are successful, they will have set a dangerous precedent that empowers the party in power to take away all the rights of individual Senators with a simple majority vote. 

It is important to tell these liberals – “be careful what you wish for.”  As Mike Hammond wrote earlier today on this site ” If 2012 is a ‘Republican year’ –- and it may be -– I will urge that the first piece of legislation in the 113th Congress be a composite bill to repeal every major piece of Big Government legislation from the Obama administration, most significantly, ObamaCare.”  Is that what you really want liberals?  Do you want 2013 to be the year of unfettered power for Republicans if they control the House, Senate and Presidency?  I think you will be crying for the filibuster to be reinstated if that happens.


Here is the plan.  Liberals will argue that the Senate can change rules with simple majority vote.  They call this the “Constitutional Option” and the theory goes that a new Senate can change rules before they operate, and implicitly consent, to new rules.  The claim that in the “first day,” they can change the rules with a simple majority vote.  There are a few problems with this theory.

First, the rules specifically forbid this power grab by liberal Democrats (See Rule 22).  Rule 22 mandates states that the Senate can’t vote on a rules change until 2/3rd Senators vote to end debate on a rules change.  Rule 5 memorializes an agreement from 1959 when Senators wanted it written in the Senate’s rules that the Senate is a continuing body.  In other words, the Senates Rules state that (1) you need 2/3rds to shut off debate on any rules change, and (2) the Senate’s rules continue from Congress to Congress. 

Second, they claim that the rules don’t apply for the period of time that the Senate has not operated under the rules.  They argue that before the Senate’s rules are followed by a new Congress, they can change them with a simple majority vote.  Now they have moved the goal posts on this issue to now say that they can do so in the “first day.”  They are wrong because the Senate has already functioned under the rules of the Senate in the opening moments of the 112th Congress. 


Senator Bob Smith(R-NH) in 1999 introduced and passed a resolution requiring that the Pledge of Allegiance be read before the Senate conduct any business.  That was done at the opening of the Senate today.  At that point the Senate was operating under the rules.  It didn’t end there.  The next order of business was to swear in new members.  The oath used to swear in Senators is written in Rule 3 of the Senate’s Rules.  At that point the Senate was operating under the rules.

After that, Senate Majority Leader Harry Reid (R-NV) introduced and passed Senate Resolutions 1-4 by unanimous consent.  When a unanimous consent request is made, any Senator can object to the request and it would have forced the rules of the Senate to be implemented for debate and the laying over of the resolution for one legislative day.  Later in the day, Senator Tom Udall (D-NM) introduced his resolution and Senator Lamar Alexander (R-TN) objected.  Under the rules of the Senate, that resolution lays over for one day before the Senate can consider the resolution.  

Now, it is expected that the Senate will recess at the end of the day to continue the fiction that the Senate is in the same legislative day when they come back into session in two weeks.  What Reid will do is to recess the Senate, and not adjourn for the day, so they can make believe that they are in the same legislative day in 2 weeks when they come back into session.  This theory is flawed and should be rejected by fair minded Senators.


This theory being used to justify this extraordinary parliamentary power grab is wrong for several reasons.  I have a detailed explanation of why this idea is flawed published over at The Foundry.

There are four myths about the filibuster that you will hear over and over again. These myths are needed to justify any attempt to change the Senate’s rules with a simple majority vote. This is a power grab, pure and simple.  The fact of the matter is that the explicit words of the Constitution, the Senate’s written rules, and the history of the Senate show that the filibuster was created for good reason. Extended debate and unlimited amendment is part of the fabric of the institution.

Greg Sargent at the Washington Post has a description of the actual Udall Resolution.  These rules changes would reduce the power of the minority.  There is nothing in these proposed rules to strip Senate Majority Leader Reid of the power to block Republicans from offering amendments.  He has done so 44 times over the past 4 years.


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