What is wrong with the Senate…

So today Senator Edward “Teddy” Kennedy’s senate seat was won in a special election by a pickup driving, health care reform hating, centerfold modeling, tax cuts for the rich loving, Republican, and listening to all the complaining by progressives about how this is the end of any hope we had of rolling back the damage “W” had done in his 8 years, and how there is no way to fix health care properly now, and how we’ll never get back to a progressive tax system, and how the sun won’t rise tomorrow…. OK, so maybe no one actually said that last one. But, they may as well have. And I have to admit that I was hanging onto the back of that bandwagon, just aching to jump on, when my old buddy Eugene Robinson at the Washington Post woke me up to the fact that the Democrats still have an 18 seat majority in the Senate, and a HUGE majority in the House.

Personally, I am tired of being held hostage by a Ben Nelson, or Joe Lieberman, or an Olympia Snowe. And I have a solution for the Senate. Fix your BROKEN rules that require a 3/5 majority to pass LEG-IS-LA-TION. For crying out loud, the only thing the Constitution says about requiring more than a simple majority, i.e. 51 votes, is the requirement of a two-thirds majority in the Senate for confirming treaties, expelling one of its members, and concurring in the proposal of Constitutional Amendments. So, where, oh wise reader, does this ridiculous notion of a 3/5 majority come from you may ask. Well, sit back while I recite a little story about the history of the Senate. Starting with the first Senate in 1789, the rules left no room for a filibuster; a simple majority could move to end debate and bring a matter to a vote. This is because the first set of Senate rules included a procedure to limit debate called “moving the previous question.” This rule was dropped in 1806 in the misunderstanding that it was redundant. Starting in 1837, senators began taking advantage of this gap in the rules by giving lengthy speeches so as to prevent specific measures they opposed from being voted on, a procedure called filibustering. Once the filibuster became possible, and since any Senator could now block a vote, 100% support was required to bring the matter to a vote. However, guess what, even though it was possible it hardly ever happened.

Now here our story goes quiet for a while, it is another 70 years before the Senate took another look at filibuster rules, when in 1917, Senator John J. Walsh contended the majority of the Senate could revise a procedural rule at any time, despite the requirement of the Senate rules that a two-thirds majority is necessary to approve a rule change. “When the Constitution says, ‘Each House may determine its rules of proceedings,’ it means that each House may, by a majority vote, a quorum present, determine its rules,” Walsh told the Senate. Opponents countered that Walsh’s “Constitutional option” would lead to procedural chaos, but his argument was a key factor in the adoption of the first cloture rule later that year permitting a two-thirds majority to end debate, and a further change in 1975 reduced the cloture requirement to three-fifths. Supporters of the right to filibuster argue that the Senate has a long tradition of requiring broad support to do business, due in part to the threat of the filibuster, and that this protects the minority. I have only one response, “Bull!!!” The only thing it does is slow the snail pace of change down to a glacial pace.

The “nuclear option”, as it has lately been called, is used in response to a filibuster to end a filibuster by invoking a point of order to essentially declare the filibuster unconstitutional which can be decided by a simple majority, rather than seeking formal cloture with a supermajority of 60 senators. A senator makes a point of order calling for an immediate vote on the measure before the body, outlining what circumstances allow for this. The presiding officer of the Senate, usually the vice president of the United States or the president pro tempore, makes a parliamentary ruling upholding the senator’s point of order. The Constitution is cited at this point, since otherwise the presiding officer is bound by the precedent requiring 3/5 vote for cloture. A supporter of the filibuster may challenge the ruling by asking, “Is the decision of the Chair to stand as the judgment of the Senate?” This is referred to as “appealing from the Chair.” An opponent of the filibuster will then move to table the appeal. As tabling is non-debatable, a vote is held immediately. A simple majority decides the issue. If the appeal is successfully tabled, then the presiding officer’s ruling that the filibuster is unconstitutional is thereby upheld. Thus a simple majority is able to cut off debate, and the Senate moves to a vote on the substantive issue under consideration. The effect of the nuclear option is not limited to the single question under consideration, as it would be in a cloture vote. Rather, the nuclear option effects a change in the operational rules of the Senate, so that the filibuster would thereafter be barred by the new precedent. In other words, the Senate goes back to doing business the way the House does business, and the way the framers of the Constitution envisioned.

What this means in the real world, is that much of the “Change we believed in” when the vast majority of Americans voted for President Obama can be crafted into legislation, passed through the House and Senate, and signed into law by the President. And that is what this country needs!