Is the 60 vote threshold unconstitutional?

[JamesA1102]

From Article I, Section 3 of the constitution: The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

Doesn't this infer that all votes in the Senate be decide by a majority, not a 3/5s vote?

[kestrel91316]

1. Interesting observation. I have NO IDEA............

Boy, that was helpful to you, huh? I better go back to reading about cat diseases.

[elehhhhna]

2. We need 50 plus the VP tiebreaker. 60 is a madeup ,convenient construct

for doing ABSOLUTELY NOTHING.

[FormerDittoHead]

3. 60 to break a filibuster, which the Republicans will do, IN TOTAL LOCKSTEP, because they're dicks.

the whole thing is about a filibuster.

[pnwmom]

4. No, it doesn't imply that. n/t

[RoyGBiv]

5. No ...

Article 1, Section 5:

"Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member."

The above section only implies that on a vote to pass a bill, if the vote be equally divided, that the President of the Senate may have a vote. The rules of operation regarding how they get there is left entirely up to its own rules of order.

[JamesA1102]

13. Go back and read section 3

It does not qualify that it only applies to votes taken to pass a bill thus it can be interpeted to mean all votes.

[RoyGBiv]

14. Read it ...

Read Story's commentaries.

The argument you want to make has no basis.

I'm sorry. I would love it, for the moment, if it did. I would hate it when Republicans are in power.

[JamesA1102]

17. How does it have no basis?

Because you said so.

[RoyGBiv]

18. No ...

The Constitution says so. See section 5.

For elucidation of the point, see Story's commentaries.

[JamesA1102]

21. How?

How can the the Senate adopt rules that supercede what is proscribed in Section 3? And since the Constitution also proscibes what specific votes require more than a majority in Article I Section III (Impeachment), Article I Section VII (overturning Vetos) and Article V (amendments to the Constitution), it is only those specific votes that need more than a majority.

[RoyGBiv]

24. How ...

The Senate rules do not supersede anything.

How the Senate operates in order to get a bill to the point of a vote on whether that vote passes or fails is the business of the Senate, which is what Section 5 means.

[JamesA1102]

25. But Section 3 doesn't say that it only applies to votes on the passage

of a bill. Thus, it can be interpeted to mean all votes, even procedural ones. While the Senate does make it's own rules Section 5 it cannot adopt rules that superceed the Consititution. By your interpetation that the Senate is free to adopt any procedural rule that it sees fit, the Senate can adopt a rule that states only white male members of the Senate can vote for cloture. And since the Constitution states the cases in which a two thirds vote is needed, that it is only in those cases that more than a simple majority is required.

[RoyGBiv]

26. One more time ...

Read Story's commentaries.

You do know who Story is, yes?

[JamesA1102]

27. I assume you're refering to Joseph Story.

And you should make your own arguements, just saying read Story's commentaries is a bit of cop out.

[RoyGBiv]

28. O-kay ...

Referencing the guy who pretty much defined how this government we have works is a cop-out.

Got it.

OnEdit: Look, I'm not trying to be a prick here, but you do understand that Supreme Court justices reference Story, yes?

I don't even disagree with what I believe is your basic premise, that it is stupid that in order to get to a vote based on a majority one first has to jump through these hurdles that, at the moment, include getting past a 60 positive vote barrier before the measure is even taken to a vote.

I get it.

But what you want to be true is not true. We have in excess of 200 years of legal commentary on the question to back it up, starting with Justice Story, who, as I said, SCOTUS Justices go to for questions like this. I would *love" for the shenanigans of the current Senate to be declared unconstitutional. I wouldn't so much love it if another party were in power. Neither would you, believe it or don't.

Your thought is not original. I'm sorry, but it isn't. If you want to take it to court, go ahead, but based on my awareness of legal precedent, it's going nowhere.

[JamesA1102]

29. But you weren't referencing him.

Referencing him would require quotes from his commentaries used to bolster your arguements. Just repeatedly saying, 'Read Story's commentaries' when you can't make an arguement to refute mine is not referencing him.

[RoyGBiv]

30. G'night

[JamesA1102]

31. Good night to you too! nt

[pnwmom]

6. We will be glad for the filibuster

if we pass a health care reform that even has elements we are happy about.

Because if the Rethugs were to obtain majorities again, they wouldn't be able to repeal the bill without a 60 vote majority.

We would have lost Social Security and Medicare by now if it was up to a simple 50 vote majority.

[Posteritatis]

7. The Senate determines its own rules; any it sets for itself are automatically constitutional. (nt)

[JamesA1102]

12. Yes but that is in Section 5

And the passage I cited is in section 3 so it comes first. Thus, you could say that since section 3 refers to votes without qualification it means all votes and that since it comes first that any such procedures set that are allowed by section 5 cannot preclude the requirement in section 3 that all votes by determined by a majority vote.

[Posteritatis]

36. One part of the Constitution is not constitutionaler than another. (nt)

[Hosnon]

37. Chronology doesn't determine supremacy, except regarding amendments. nt.

[Hosnon]

35. Use unqualified statements with caution. What about a Senate rule that

said a bill must garner 67 votes to pass in the chamber?

[sponge_bob_128]

8. I would say Yes, it is unconstitutional.

If the "Founding Fuckups"/"Cavemen" back in the 1700's wanted there to be a 60% majority requirement for passing anything in the Senate it would have been in the "Crapstitution". The 60% is just pulled out of the Senate's ass. it could be 99% for that matter.

Of course, "Law" is a despicable joke and has nothing to do with rational thought like "Science" and more to do with ripping off and controlling people. Its funny that the when something supports the oligarchy it is "Crapstitutional" and when it doesn't it is "UnCrapstitutional". But then the "Crapstitution" has little in way to protect against corruption, which is why it is crap.

When the oligarchy can temporarily con the imbecile public to vote in lying stooges at over the 60% threshold, they can lock in laws to benefit themselves.

Anyway, as a Californian I totally hate the whole Senate as it is gives deer bleepers in Wyoming, etc. 70X more representation per person in the Senate. This occurred because they gave these areas that are little more than glorified national parks, statehood (by 50% vote). It is just basically ancient "Crapstitutional" compromises evolved into mathematic idiocy.

I see nuking the Filibuster as the #1 priority today. ABSOLUTELY NOTHING good is even possible until that is done.

PS: I am just blown away that anybody does not recognize that our form of government is a just a giant turd.

[Name removed]

43. Deleted message

Message removed by moderator. Click here to review the message board rules.

[cynatnite]

9. Well, there is the option of reconciliation...

which only needs a majority vote. It doesn't appear to be realistic right now.

[Ozymanithrax]

10. No, because votes to actually pass a bill require a simple majority...

The 60 vote cloture rule does not pass or reject a bill, just determines whether it will come up for a vote. If they pass that hurdle, the VP gets his shot.

[JamesA1102]

11. But the passage doesn't state to pass a law.

It just states votes which could be interpeted to mean all votes.

[Ozymanithrax]

34. No bill will be passed by the use of rule 22.

It is simply used to end a filibuster and bring a bill up for consideration of get approval to bring it up for a vote. The VP only votes if there is a tie in a final vote, not in motions or rules of order in the Senate.

The whole discussion about 60 votes needed to pass a bill is bogus. Any bill is passed by a simple majority vote. The 60 votes are needed to end a filibuster, and the Republicans are filibustering everything. It should be called for what it is, not give lip service to right wing obstructionist.

[CRH]

40. Perhaps, 'Other Procedures of Delay", ...

Perhaps other procedures breaking a filibuster could be used then allowing a simple majority on a bill?

http://uspolitics.about.com/od/usgovernment/a/filibuster.htm

~~ snip ~~

According to the US Senate website, the word filibuster -- derived from a Dutch word meaning "pirate" -- was first used more than 150 years ago to describe "efforts to hold the Senate floor in order to prevent action on a bill."

Rule 22
The filibuster is related to "cloture," a rule adopted almost 100 years ago requiring a two-thirds vote. At times this was two-thirds of those voting; for a limited time, it was two-thirds of membership.

In 1975, the Senate reduced the number of votes needed to invoke cloture to three-fifths (60) of Senate membership. At the same time, they made the filibuster "invisible" by requiring only that 41 Senators state that they intend to filibuster; critics say this makes the modern filibuster "painless."

~~ end excerpt ~~

Below the excerpt the article also has a historical timeline of this Senate rule. Further down is a interesting section, 'Other Procedures of Delay', that details a method of derailing a filibuster considered by Senate Majority Leader, Bill Frist in 2005. The ultimate goal is to side step the 60 vote filibuster rule through a series of procedural motions, effectively then just requiring a simple majority for passage of a bill.

The article ends after this section without explaining if this was tried and was successful. Someone more familiar with the inner workings of Senate procedure perhaps could answer why this method is not being used.

***** if someone reading this post can use the link and then copy the "Other Procedures of Delay" section, and post it below this post, it would be good for discussion in this thread. I can only use three paragraphs from this article by DU rules. *****

[JamesA1102]

44. But the constitution doesn't say that the VP only

can break a tie in final votes. It doesn't specify that at all.

And let's be clear, the term filibuster is being totally misused. Filibuster is when a member or group of members refuse to give up the floor. What it happening now it not filibustering. The GOP is blocking everything using parlimentary procedures.

My point is that the Senate has adopted a set of rules that deny the power given to the VP in the constitution to break ties by requiring more than a simple majority.

[CRH]

45. I see your point,

the constitution states the VP has no vote unless the senate's vote is equally divided, it is not specific on other than final votes on bills. If I understand your contention, the filibuster procedure is of itself unconstitutional because it disavows the original power bestowed the VP. That is a question whose answer is beyond my qualifications to answer, and best posed to a constitutional lawyer for debate. I'm sure there would be many opinions ranging from initial intent at the time of writing (traditionalists) to constructionists who believe the document is meant to evolve with time and social change. It might be hard to from a traditionalist theory to effectively rule on a modern science or environmental issue, where situations beyond the imagination of the original authors are now urgent dilemmas.

Your point on misuse of the term and procedure of filibuster is well taken, with the use of the silent filibuster to block bills from vote with no physical action. It is used as an obstructionist tactic and doesn't serve the purpose or intent of effective representative government, the congress is supposed to fulfill. It is why I asked of the other section at the link "Other Procedures of Delay", and whether it was ever actually used to side step an attempt to filibuster.

I'll risk the wrath of the moderators here it is ...

http://uspolitics.about.com/od/usgovernment/a/filibuster.htm

~~ snip ~~

In 2005, then Senate Majority Leader Bill Frist threatened to end Democratic filibuster of judicial nominees by something called the "nuclear option." It is actually a series of steps designed to bypass the two-thirds vote requirement to change rules: (cite)

The Senate moves to vote on a controversial nominee.

At least 41 Senators call for filibuster.

The Senate Majority Leader raises a point of order, saying debate has gone on long enough and that a vote must be taken within a certain time frame. (Current Senate rules requires a cloture vote at this point.)

The Vice President -- acting as presiding officer -- sustains the point of order.

A Democratic Senator appeals the decision.

A Republican Senator moves to table the motion on the floor (the appeal).

This vote - to table the appeal - is procedural and cannot be subjected to a filibuster; it requires only a majority vote (in case of a tie, the Vice President casts the tie-breaking vote).

With debate ended, the Senate would vote on the issue at hand; this vote requires only a majority of those voting. The filibuster has effectively been closed with a majority vote instead of a three-fifths vote.

~~ end excerpt ~~

Would this work, has it been used before?

[seeinfweggos]

15. probably not, but it is stupid

make the fuckers REALLY filibuster!

[tritsofme]

16. It could also be interpreted to mean that the VP technically gets a meaningless vote

in the event the Senate is split 50/50 on a vote that perfectly valid Senate rules require 3/5 for passage.

But that's just me playing your game, I don't think the Constitution requires what you say it does.

[JamesA1102]

19. How are they perfectly valid Senate rules?

How can the Senate adopt a rule that supercedes what is proscribed in the Constitution?

[tritsofme]

20. I don't interpret that clause to imply that the VP's vote requires passage.

Cloture could fail 51-50.

It is not explicitly stated, it only states that the VP must have a vote if the chamber is divided. The Senate is free to make any rule, including the number of votes required for passage.

[JamesA1102]

22. How can the Senate make a rule that invalidates what is required in the Constitution?

The constitution gives the Vice President the right to break all votes that are tied. If the Senate adopts a rule that requires say 52 votes to pass a bill, it is invalidating the power that the constitution has invested in the Vice President.

And since the Constitution also proscibes what specific votes require more than a majority in Article I Section III (Impeachment), Article I Section VII (overturning Vetos) and Article V(amendments to the Constitution), it is only those specific votes that need more than a simple majority.

[onenote]

33. if the provision giving the VP is the constitutional basis for the number of votes needed to pass

a bill, what is the constitutional basis for the number of votes needed to pass a bill in the House where the VP has no tie-breaking vote. In case you didn't know, the House, at times in its history, has had an even number of members, making ties possible.

And, of course, the Constitution expressly says that a majority of each house is needed to have a quorum to do business, so in theory, one could pass a bill by a vote of 26 to 25 with only 51 members participating.

The provision giving the VP the role of casting a vote to break a ties, is exactly that. Nothing more.

[JamesA1102]

42. But it doesn't say to pass a bill

It just says that the VP only cast a vote when there is a tie. Since it doesn't specifically say that it is only to pass a bill it can be interpeted to mean all votes that are tied. And since it also proscribes what votes need more than a simple majority, it can be interpeted that only those votes need more than a majority.

As far as the House, since the Constitution provided no role for the VP there it is a non-sequitar that is irrelevant to this discussion.

[RoyGBiv]

23. delete

wrong place

[Fire_Medic_Dave]

32. No it's says if they are equally divided he has a vote.

[Hosnon]

38. It's an interesting question and I'm not as eager as others to say "no" without reservation.

One principle of constitutional law is that the Constitution can only be amended via the processes set forth in Article V. Therefore, if a Senate rule amends the Constitution, even if only practically, it would be invalid. On the flip-side, more specific principles generally trump less specific principles, and the Senate Rule clause is more specific than Article V.

If it came down to it, that is, if the Senate passed a rule that unquestionably amended the Constitution and the Supreme Court got the case, I tend to think it would be deemed unconstitutional.

[JamesA1102]

41. Thanks.

It's nice to know some people have an open mind.

[branders seine]

39. when the further-to-the-right-fascists are in power,

they change the internal Senate rules to empower themselves when they are again returned to the minority.

Somehow, the slightly-less-to-the-right-fascists never figure out how to play this game.

[hughee99]

46. Exactly, like the filibuster number of 60, it used to be 67

then when one party had 60 members in the Senate, they changed the Senate rules to change the number of votes required to break a filibuster from 67 down to (conveniently) 60.