The "nuclear option" is ethically questionable and we should stay far away from it.

[CTLawGuy]

when the Republicans threatened it, we rightly decried it as an abuse of power. Let's not be the ones to set this precedent.

If you want to see how it is an abuse of power and a bad precedent, consider this:

- Normally the arbiter of what does and does not violate the constitution is the Judicial Branch. It is a judicial function, NOT a legislative function.

Why is it a judicial function? Declaring laws unconstitutional is a natural incident of statutory construction, the means by which a court gives a law (words on a page) practical meaning. It is a rule of statutory construction that when two laws are in conflict the court has to "construe" them so as to preserve both of their effectiveness, if possible. If this is NOT possible then the court has to declare one law valid and the other invalid. It has no choice.
When we say a law is "unconstitutional" what we are really saying is that a provision of the constitution and this law cannot reasonably both be given effect because the constitutional provision clearly intends to prohibit this law, and the constitution takes precedence over a law.

- If the legislature had the power to declare things "unconstitutional", it would be a troubling increase in the legislative branch's power.

If we concede that the Vice President, who is NOT a constitutional expert, can declare the filibuster "unconstitutional" and thereby get rid of it with a simple majority confirming his "ruling", what else could be held "unconstitutional"? If the Rs took over Congress and the presidency in 12, could they declare the votes of Democratic senators "unconstitutional?" Could they declare a senate election "unconstitutional" and refuse to seat someone from the minority party on that basis?
If the vice president can declare things unconstitutional, what about everyday laws? There is actually no law or constitutional provision, that I know of, that says that the senate cannot declare a garden variety law unconstitutional. In fact, there is no specific law giving the Supreme Court the right to declare laws unconstitutional. The Court acknowledged that this was an inherent power that they had in the case of Marbury v. Madison (1803).

- The nuclear option is disingenuous. It has nothing to do with the actual constitution.

I have yet to be told what provision of the constitution the filibuster violates. It's not even a real rule, it's a quirk that arises because of other senate rules, namely that senators have the privilege of unlimited debate. In using the nuclear option, the majority is not REALLY saying that something is unconstitutional, they are saying that they are getting rid of the privilege of unlimited debate because they can. The vice president, as I said before, is not a constitutional expert.
Furthermore, if unlimited debate is unconstitutional (which is what they would have to say), what is the maximum time limit for debate that the constitution allows? How is the VP supposed to figure this out?

- The nuclear option would have uncertain consequences.

Would unlimited debate be gone forever? Could a future congress declare it constitutional again and bring it back? Could the vice president arbitrarily declare how long debate is to last? Could he change that ruling day to day or congress to congress?

- The nuclear option is essentially someone changing the rules in the middle of the game, it is blatant disregard for the rules and bad government.

If you want to change the rules, either get a sufficient number of senators to agree to change them in the middle of the term or when the next congress comes into session, modify the rules under the processes already in place. The nuclear option is like a kid changing the rules of chess in the middle of a game because he doesn't want to get checkmated.
The alternative is to bring the case to the voters that the Rs are not interested in helping them that they only want to block the process of government, and that the voters should tell them what they think of their abuse of the filibuster.

[AndyA]

1. You want to talk about questionable ethics?

Take a look at what the Republicans have spent the last year doing: blocking EVERYTHING. It doesn't matter what it is...if it's good for the people, saves money, whatever. It's been blocked. And it didn't just start this last year, it's been going on for a few years.

I think the Democrats need to do whatever is necessary to move legislation. Some of it is desperately needed. If they don't they will lose their majorities and you can be certain the GOP will have no problem with shoving their agenda through, regardless of what the Dems think, just like they did during the Bush years.

[RUMMYisFROSTED]

2. Handy dandy chart:

Last I checked it was at 111.

[CTLawGuy]

3. I don't disagree

it doesn't mean we should sink to their level. and imagine if they took power back AND we had used the nuclear option...

[quantass]

8. Nothing is worse then getting nothing done.

Continuing on the course of democrats patently obsessed "get nothing meaningful done" approach is embarassing and so this idea of not sinking to their level is appalling. When the republicans get back into power (and they eventualyl will based on history) they will continue to push AND get their agenda done. And America can resume its destined course down the toilet and into third-world oblivion a la the Roman Empire.

I've noticed that the American people have very short memories and so although the republicans consistently rape this country the people forget very easily and happily revote them back in to office so the republicans can continue their personal pillaging...that is until these peasants cry in horror and finally vote back the left to save them only to find that the democrats are, as usual, afraid of their own shadow and always looking for an excuse to get nothing done ("we need 60 to get anything done"...they get 60..."we need bipartisan support"..and the game goes on).

Enough is enough....fight and get things done -- by any means necessary! America is DYING! Wake up!

[Crunchy Frog]

15. +1000

[mikekohr]

9. Invoke the Constitutional Option, THEN introduce the Harkin admendment

with the promise to revoke the Constitutional Option upon passage of the Harkin admentment. That's a carrot and the club approach, the only thing Republicans will respond to and the only realistic way to get 67 votes in the Senate to pass Harkin's bill.

mike kohr

[Armstead]

14. I like that

[timeforpeace]

19. "Constitutional option" instead of "nuclear option"? Like changing Global Warming to Climate Change?

It's naive to believe that changing terminology will result in success in converting non-believers.

[mikekohr]

22. It is my understanding that Constitutional Option is the original term

"nuclear option," is the terminology change.

[quantass]

4. It's Democrats, nuff said -- no chance they even think it.

Sometimes i wish they had balls.

[CreekDog]

5. Well the Emancipation Proclamation was ethically questionable

and morally right.

put that in your pipe and smoke it.

step back Mr. Lawyer man. i'm not going to let someone use my ethics to help me disenfranchise millions of people (by rendering their votes less equal than others)

[Tom Rinaldo]

6. A harsh reality:

If the Republicans gain control of the Senate in this decade, emboldened by the Supreme Court ruling to believe they can now always raise the money needed to hold on to at least a simple majority of seats, the Republicans will use that nuclear option as soon as Democrats try anything 1/4th as "obstructionist" as the Republicans in Congress are doing now.

I actually think the only thing that can save the filibuster in the Senate is continued Democratic majorities there. The only other scenario I can envision would require a highly plausible threat by Democrats to use the nuclear option IF Senate rules aren't changed to lower the number of votes needed for cloture to something more realistic in the current political environment, something like 55 votes. If Republicans are convinced that the filibuster tool will be abolished NEXT MONTH without something else changing I predict there will arise a new "bi-partisan gang of 14" (or whatever number it was) to negotiate a compromise that makes ending filibusters easier.

[burning rain]

7. OK, accept getting jack shit done, & Dems get thrashed at the midterms for their fecklessness.

Sound good? 'Cause it doesn't sound so good to me.

[CTLawGuy]

17. change the damn rules

at the beginning of the next congress. If you read my entire post you would have seen that's what I advocate.

[burning rain]

21. Well, you seem to hedge.

You finish up with the suggestion that Democrats campaign in 2010 on the complaint that Republicans wouldn't help them. That seems peculiar: Republicans aren't elected to be help-mates for Democrats in the first place,and they're endangering their political careers if they do so. I know you like to invoke liberal-to-moderate Republicans of a bygone age, but they were the permanent Republican minority from 1955-1979. Republicans these days actually want to win, and you can't expect them not to. Also, this campaign strategy amounts to Democrats going to the voters and saying, Reward us for failing to deliver. Probably not a recipe for success.

At any rate, given that the nuclear option is a rule change, it seems to me no more or less ethical than any other, given that both Houses of Congress have the right to determine their own rules. It may be opportunistic, but in the present circumstances it seems more than justified by Republicans' unprecedented use of the filibuster.

In any case, I'm consistent on this. If Mitch McConnell is majority leader after the next election, I'll certainly support him and his merrygang stripping the right to filibuster, as well.

[pscot]

10. The Senate sets its own rules

at the beginning of each congress. Those rules aren't constitutional mandates, they're rules of procedure and can be changed at will. The Republicons have effectively changed the rules to requi9re 60 votes to pass any and all legislation. The majority party can address that problem in any way it sees fit. It has nothing to do with ethics.

[Bitwit1234]

11. Bull absolute bull

Once the democrats take the filibuster away, do you think any party will put it back. If the republicans win in the future and take over the senate, they would be stupid as hell to re=introduce it.

It is archcavic and should be done away with any way. It was not a part of the rules and regulations of the senate anyway.

And I think Obama should look into how he can add two more judges to the supreme court. They were thinking about making it nine, some time ago and it fizzled out. This is a very good time to do this. We have a majority in both houses, and that would be all it takes.

[Bitwit1234]

12. meant to say out of date instead of that made up word archcavic.

trying to be an "elitist" with a ten dollar word and blew it.

[CTLawGuy]

16. and if the Republicans take back the senate

there would be thread after thread here excoriating the democrats for getting rid of it.

In 2005, people were howling their heads off about the nuclear option when it was the REPUBLICANS considering it.

[Crunchy Frog]

13. Oh, don't worry about it.

Our Dems aren't ever going to do anything that demonstrates having a backbone.

[bemildred]

18. Nothing in theConstitution requires or prevents unlimited debate.

It is legal, proper, and Constitutional for the Senate to set or amend its own rules.

[akel21]

20. Biden said this

"As long as I have served ... I've never seen, as my uncle once said, the Constitution stood on its head as they've done. This is the first time every single solitary decisions has required 60 senators," he said at a Florida fundraiser, according to the pool report. “No democracy has survived needing a super majority."

[bemildred]

23. It is inherently undemocratic to allow a minority to prevent legislative action.

Curbs on the power of majorities and protections for minorities are all very well, very good indeed, but they are not the same thing as giving minorities a blanket privilege to prevent legislative action by a majority wanting to act.