SenatorTomUdall: It's Time for the Constitutional Option

[cal04]

A year ago, I took my seat in "the world's greatest deliberative body" as the 17th U.S. senator for New Mexico. The respect that I hold for the institution of the U.S. Senate is immeasurable, as is the pride with which I serve.

But in the past year I have witnessed an assembly that seems more dysfunctional than deliberative -- where partisan rancor and the Senate's own incapacitating rules often prevent us from conducting our business. Many of my colleagues and I were elected to the sound of a call for change. The American people sent us to Washington to put partisanship aside and take the country in a new direction. Unfortunately, the self-imposed rules that govern the Senate have stood in the way.

video here
http://www.dailykos.com/story/2010/1/26/830510/-Its-Time-for-the-Constitutional-Option

Given that fact, I commend Senate Majority Leader Harry Reid for all that he has been able to accomplish in an atmosphere of obstruction and inefficiency. But the system in its current form leads to legislation that is diluted and vulnerable to being held hostage by a single senator. At worst, the Senate has become a graveyard for good ideas.

It is for that reason that I stood before the Senate yesterday to reflect upon our constitutional obligations to this institution and to the American people for whom we serve. (pdf)

We need to take a good look at the rules that govern the Senate and get the business of the American people back on track.

The Constitution v. The Catch XXII

While I am convinced that our inability to function is our own fault, we have the authority within our Constitution to act.

Article I, Section 5 of the Constitution states, "Each House may determine the Rules of its Proceedings..." Yet, at the beginning of the 111th Congress, unlike in the House of Representatives, there was no vote on a package of rules that would govern the body for the two years that comprises a term of Congress. As a result, 96 of my colleagues and I (three senators had an opportunity to vote on the last change to the rules in 1975) are bound by rules put in place decades ago and make conducting the business of the Senate nearly impossible.

Specifically, under the "filibuster rule" (Rule XXII), it is not possible to limit debate, or end a filibuster, without three-fifths, or 60, of all Senators voting to do so. In the past several years, the use -- and abuse -- of filibusters by both parties to obstruct the Senate from functioning has become the norm. But it hasn't always been this way. Such cloture votes used to occur perhaps seven or eight times during a congressional session, but last Congress there were 112 - most occasioned simply by the threat of a filibuster. The use of the filibuster today dominates the Senate's business at an irresponsible level, threatening our ability to operate.




Even worse, the rules make any effort to change them a daunting process. Currently the rules for the Senate continue from one Congress to the next. However, as last modified in 1975, even attempts to change the rules can be filibustered, and in fact require an even greater threshold (two-thirds, or 67 senators) be met than for the regular business of the Senate.

When the authors of the Constitution believed a supermajority vote was necessary, they clearly said so. And while the Constitution states that we may determine our own rules, it makes no mention that it require a supermajority vote to do so. In addition, a longstanding common law principle, upheld in Supreme Court decisions, states that one legislature cannot bind its successors. To require a supermajority to change the rules, as is our current practice, is to allow a Senate rule to trump our U.S. Constitution and bind future Senates. This should not be.

The Constitutional Option

The need to reform our rules is not a partisan issue -- Senators of both parties have spoken out against the inability of the Senate to amend its own rules. Sen. Ted Kennedy, whom we all miss dearly, 35-years-ago said of the need to reform the rules, "the notion that a filibuster can be used to defeat an attempt to change the filibuster rule cannot withstand analysis. It would impose an unconstitutional prior restraint on the parliamentary procedure in the Senate. It would turn Rule XXII into a Catch XXII." And, as my esteemed colleague from Utah, Sen. Hatch, stated in a National Review article in 2005, "both conservative and liberal legal scholars, including those who see no constitutional problems with the current filibuster campaign, agree that a simple majority can change Senate rules at the beginning of a new Congress."

In the 1950s, a bipartisan group of senators had had enough. On behalf of himself and 18 others, New Mexico's own Sen. Clinton Anderson attempted to limit debate and control the use of filibuster by adopting the 1917 belief of Sen. Thomas Walsh that each new Congress brings with it a new Senate entitled to consider and adopt its own rules. On January 3, 1953 Anderson moved that the Senate immediately consider the adoption of rules for the Senate of the 83rd Congress. As the junior senator from New Mexico, I have inherited Sen. Clinton Anderson's seat and in 2011, at the beginning of the 112th Congress, I will follow in the tradition of Sen. Anderson and call on the Senate to exercise its constitutional right to adopt its rules of procedure by a simple majority vote.

My party is currently in the majority in the Senate. And as the ebb and flow of politics continues, one day we will be in the minority. But my position on this issue will remain the same. In a world that is constantly changing, our democracy requires a Congress that can respond effectively to the issues of the day without, as my colleague Sen. Robert Byrd once said, being, "obliged to be bound by the dead hand of the past."

[burning rain]

1. k & r

.

[JDPriestly]

2. K&R

[Demeter]

3. Thanks for Cluing Us In, Senator

gotta get rid of that ass Harry Reid.

[Shanti Mama]

4. Bravo!

[Igel]

5. Kennedy's reasoning can't withstand analysis.

There's a general principle in parliamentary procedure that 50% can't undo the actions of a supermajority, nor can they require a supermajority to undo their actions. To change or implement rules requires the number of votes necessary to pass motions under the rules. If other words, if you need 60% to pass something, you can't alter the rule with 50% to make the new minimum requirement 50%. To do so would place a trivial procedural hurdle in the way of circumventing any supermajority requirement. A simple majority cannot typically impose a supermajority on the committee; to do so says that a minimum simple majority could with more authority than a larger majority.

How's this: The Constitution has voting and ratification requirements for amending it. Currently 2/3 of House and 2/3 of Senate, or 2/3 of state legislatures; then 3/4 of states must ratify.

What if we propose a Constitutional amendment that says a simple majority of both the Senate and House, and 25 states will be sufficient. It passes both Senate and House by 51%, and then 25 states ratify within a year. Is the Constitution changed? Why not? Kennedy's lack of reasoning says that it must be: How can you use a supermajority requirement to defeat the will of the majority? Yet I'd suspect he'd say it's completely different, one's a senate rule while one's the dead hand of the past, the Constitution. Yet the reasoning is the same. I'd suspect that somebody who really, really wants to change the Constitution would jump at the suggestion and consider it brilliant. Really, it's a turd in both cases. Utilitarianism makes not for rule of law but whim of law.

In fact, it is the dead hand of the past that's in the way in both cases, and let's hear it for the corpse. Otherwise each Senate and House and President gets to ignore all the previous precedents and rules and establish entirely new ones. Stare decisis elevates the dead hand of the past. Arguing against the "unitary executive" based on previous interpetations glories in the dead hand of the past. The very idea of citing the US Consitution sucks at the corpse's fingers. But it's such a drag when your protective weapons hinder you--on a hike you really don't like that armor, you really want to bury the corpse. It's still foolish to ditch it for the extremely short-term when in the merely short term you'll need both again.