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1) How a good bill doesn't become a law.

2) There's no such thing as simple health reform.

3) Can you kill the filibuster with 51 votes?

4) "I strongly supported the Clinton administration's push to save the budget surplus in the late 1990s rather than spend it. In retrospect, that was a mistake."

The state of your weekend is strong.

By Ezra Klein  |  January 29, 2010; 6:11 PM ET
 
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Comments

You have to love it that according to the Post, getting a majority on the student loans bill would be "a special procedure that requires a simple majority rather than the usual 60 votes out of 100 needed to stop a filibuster." That's right, folks, majority rule is now a "special procedure."

Posted by: randrewm | January 29, 2010 7:04 PM | Report abuse

Regarding the filibuster, here's some painful realities:

- The GOP has not had a supermajority since as far back as 1983, yet since that time, they have had no problem pushing through most of their bills.

- Democrats routinely vote in numbers large enough to help the GOP win passage of most of their bills, and Democratic presidents like Clinton and Obama have gone along with many GOP initiatives.

- The GOP has not and will not join Democrats to win support of Democratic key ihitiates. The GOP main goal here is to weaken Democratic officials even at the pain of the country.

Hence, ending the filibuster will not hurt Democrats when the GOP controls congress (because the GOP gets their way anyway) and will not aide the GOP when they have control (because the GOP gets their way anyway).

End the filibuster. It is the only way to return to two-party government.

Posted by: Lomillialor | January 30, 2010 11:15 AM | Report abuse

Whether or not the Supreme Court has made rulings about enacted laws not being binding on future Congresses, Mr. Millhiser's belief that the Senate can amend its rules by 51 votes is erroneous.

First, the Constitution gives each chamber power over its own rules. [Article I, section 5: "Each House may determine the Rules of its Proceedings"] Thus, the rules are not subject to review outside the Legislative Branch. And a rule is different from an enacted law, which arguably is subject to revision by future Congresses.

Second, even assuming that the Court would take up the "political question" of Senate procedure, it's hard to see how a ruling could be crafted or enforced. Does the Court say the Senate must change its rules? Or can it disallow any legislation passed under them? Or what?

Third, the Senate has an additional rule -- V, section 2, that says: "The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules." This was added in 1951 to get around a liberal attempt to get around the filibuster by saying that new rules need to be adopted each Congress -- as is done in the House. But now that it's in the rules, and the Senate officially consider itself as a continuing body [in fact, of course, 2/3 are continuing from the previous Congress], it will take a 2/3 vote to change those rules.

Even if we wish to eliminate or make more difficult filibusters, it's wrong and misleading to argue that there is a judicial remedy.

Posted by: cstevenson1 | January 30, 2010 12:41 PM | Report abuse

One comment above notes flaws in the argument presented (as if it were fact) in the Prospect opinion piece.

To begin, see McGrain v. Daugherty, 273 U.S. 135, 181–182 (1927), which makes clear that the Senate is “a continuing body.” Hence its rules remain in force from Congress to Congress except as they are changed from time to time, whereas those of the House are readopted at the outset of each new Congress.

The McGrain opinion of the Supreme Court was later (after 1927) incorporated into the rules themselves, eliminating all possibility of a start-of-session rules change period by a vote count of less than 2/3rds. It takes a 2/3rds vote (currently 67) by the Senate to change the rules of the Senate.

Posted by: rmgregory | January 30, 2010 3:08 PM | Report abuse

I agree with Chait's thesis, but when he writes that, "the Republican Party has embraced... the conviction that that tax rates need only be high enough to fund their desired level of government spending, rather than the actual level of spending," he's bought into the Republican propaganda that Republicans favor lower government spending.

Of course Republicans favor lower government spending now. It's a great excuse to block Democratic programs. But during Bush's first term, government spending grew faster than under any president since Lindon Johnson.

Posted by: KennethAlmquist | January 31, 2010 2:03 AM | Report abuse

The Supreme Court assertion in McGrain v. Daugherty that the Senate is "a continuing body" strikes me as unpersuasive because the Court misreads Jefferson rather than explaining why Jefferson's analysis should be ignored. See http://www.justice.gov/olc/sine.htm. Nor does this case assert that one session of Congress has the power to bind future sessions, which is what is at issue here.

The assertion in the Senate rules that the Senate is a continuing body is fairly persuasive because it codifies longstanding tradition. But it doesn't actually settle the matter because if a session of Congress is not bound by the rules passed in previous sessions, then it follows that a new session of the Senate is not bound by the rule that says that the Senate is a continuing body.

Ultimately, the issue is whether the problems caused by the filibuster are serious enough to justify changing the tradition that Senate rules remain in force from one session to the next. I've become convinced that they are.

I agree with cstevenson1 that this is not a matter for the judiciary. It's a matter for the Senate. If, at the start of the next session, a majority of the Senators think that the Senate is not a continuing body, the the rules of the Senate for that session will be decided by majority vote. Otherwise, they won't be.

Posted by: KennethAlmquist | January 31, 2010 1:35 PM | Report abuse

The comments to this entry are closed.

 
 
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