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How Joe Biden could change the Senate

Bruce Ackerman notes that filibuster reform has long been a preoccupation of Senate presidents (which is to say, vice presidents). In fact, it took three of them, working from both parties, to pass the 1975 change that brought the threshold for cloture down from 67 senators to 60 of them. First Richard Nixon took his shot, and then Hubert Humphrey raised the issue. Both failed. Then came Nelson Rockefeller, whose role in this story is not well-known:

Nelson Rockefeller broke the log-jam when serving as Gerald Ford's vice president. Both majority leader Mike Mansfield and the parliamentarian opposed the Senate president's rulings. But Rockefeller refused to budge, and this time, the Senate backed him up by a vote of 51 to 42.

Mansfield arranged a face-saving compromise, under which the Senate adopted the current three-fifths rule without explicitly accepting the propriety of Rockefeller's action. But there's no avoiding the fact that the current filibuster rule is the product of the bipartisan campaign by Nixon, Humphrey, and Rockefeller to overcome the opposition of parliamentarians and majority leaders to change.

This constitutional point should not be obscured by the short-term politics of health care. Vice President Biden has served 36 years in the Senate -- longer than the parliamentarian. While he should listen to Frumin's advice about the complex Senate rules, he can and should make his own decisions. And the current majority leader, Harry Reid, who supports filibuster reform, will not stand in the vice president's way this time. Biden should establish that the Constitution gives him independent authority and thereby preserve his ability to lead a new round of filibuster reform in 2010 and beyond.

By Ezra Klein  |  March 18, 2010; 5:20 PM ET
Categories:  Senate  
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So, Sarah Palin wasn't wrong when she said that the VP "if they want to, they can really get in there with the Senators and make a lot of good policy changes that will make life better for [Americans]"?

Posted by: JakeD2 | March 18, 2010 5:36 PM | Report abuse

Not to mention, we may have 51 senators willing to go along with substantive change, but not necessarily 67 to do moderate change.

After all, it's one or the other.

The situation in 1975 was pretty remarkable- for a few days, the Senate actually set the precedent that any new Senate could change its rules by a 51 vote majority.

Unfortunately, after that ruling, the Senate leaders were so united that they managed to get a coalition of 67 Senators to change the cloture threshhold- in exchange for one great "compromise"- they would review the previous ruling that passed by 51 votes and bring it up for another vote to overturn it (which they did), thereby undoing the precedent.

Posted by: cbaratta | March 18, 2010 5:41 PM | Report abuse

jsksksksksnx nsns snx

Posted by: scarlota | March 18, 2010 5:50 PM | Report abuse

It'll never happen. To do so would be an act of true courage, what is it about the Democrats that would lead anyone to believe that the party has true courage?

I may be left of center on many things, but I live in the real world. In the real world the Democratic Party is rather timid, to say the least.

Posted by: nisleib | March 18, 2010 5:53 PM | Report abuse

It's time for filibuster reform. I agree wholeheartedly with the post.

The current rules are designed for a system in which the minority uses the filibuster privilege responsibly -- not to block every nomination, bill and other motion that enters the chamber.

Filibusters aren't in the Constitution. They are a tradition the Senate created on its own to encourage ensure the minority always is adequately represented and to encourage consensus.

But for the first time in American history, the minority party in the Senate has completely lost sight of its responsibility, abusing their privilege to block the will of an overwhelming majority of the American people on issue after issue.

And Ezra's right: This is not a question for the parliamentarian to decide; Senators themselves are responsible for creating the rules that parliamentarians simply help them to uphold.

And no Senator has more responsibility for establishing rules of the Senate which maintain the institution's Constitutional role of making laws (not held hostage to an intransigent minority) than the Constitutionally established President of the Senate.

Posted by: paul65 | March 18, 2010 5:54 PM | Report abuse


Why do I think you would not feel the same way if Sarah Palin were the Constitutionally established President of the Senate and the GOP had 59 Senators?

Posted by: JakeD2 | March 18, 2010 5:56 PM | Report abuse

JD2, if the country elects 59 Republican senators and Sarah Palin as prez or VP, then they should be able to enact the agenda they campaigned. Democrats would be within their rights to oppose, and they'd be within their rights to try to and turn public opinion against the Republicans. Also, I'd probably leave the country. But personally, I'm perfectly willing to let the Republicans govern if it means that Democrats have an opportunity to govern as well.

Posted by: Isa8686 | March 18, 2010 6:17 PM | Report abuse

To the extent that the President of the Senate can interpret its rules just as a Justice can interpret the Constitution, I agree: the Senators (not the President of the Senate) make and amend the rules, just as the individual States amend the Constitution.

Posted by: rmgregory | March 18, 2010 6:21 PM | Report abuse

individual States amend the Constitution? I thought it had to pass congress and be signed by the pres and then the 2/3 states have to vote to ratify it. did I miss something?

Posted by: srw3 | March 18, 2010 7:03 PM | Report abuse

JakeD2: That scenario wouldn't change my opinion one iota, not that I think Democrats ever really would disrespect a Senate majority elected by a majority of citizens and pull what Senate Republicans have pulled.

Posted by: paul65 | March 18, 2010 7:09 PM | Report abuse

@JD2: Sarah Palin were the Constitutionally established President of the Senate and the GOP had 59 Senators?

Do I see pigs flying (unaided)?

By saying constitutionally established I assume you mean that she couldn't be elected, right? Just askin...
And 59 repiglican senators? Have they ever had that kind of a majority since the civil war, oh excuse me, the war of northern aggression? Since WWII 55 was the most the repiglicans could muster.

Posted by: srw3 | March 18, 2010 7:13 PM | Report abuse

So, paul65, you don't think that the Democrats would "ever" filibuster 62 judicial nominees, is that right?

Posted by: JakeD2 | March 18, 2010 7:15 PM | Report abuse


No, I mean if she were Vice President of the United States.

Posted by: JakeD2 | March 18, 2010 7:17 PM | Report abuse

"Why do I think you would not feel the same way if Sarah Palin were the Constitutionally established President of the Senate and the GOP had 59 Senators?"

Because you have no core principles and values and that's how you'd react if the shoe were on the other foot.

Posted by: steveh46 | March 18, 2010 7:21 PM | Report abuse


I opposed the "nuclear option" being threatened by the GOP back then, and I oppose the trigger being pulled by the Dems this time too. Please get your facts straight.

Posted by: JakeD2 | March 18, 2010 7:40 PM | Report abuse

@JD2: sorry I misread your post through my tears of laughter.

Remember only the repiglicans threatened the nuclear option (changing the rules of the senate mid session to eliminate the filibuster) in response filibusters rightwingnut judges because of actual substantive differences with their views. Republicans are blocking and delaying nominees that are when many that are brought up for a vote are confirmed with more than 60 votes. Where is the logic in that? Voting to deny a vote and then voting for the nominee. Its not ideological or substantive differences that the repigges are expressing. Its just obstruction for partisan political advantage.

Posted by: srw3 | March 18, 2010 7:41 PM | Report abuse

@JD2:I opposed the "nuclear option" being threatened by the GOP back then

Really, this is news to me. BTW the dems have not threatened to try and change the senate rules mid session, so they don't have their finger on that particular trigger. They may try to alter the rules at the start of the next session, however. There is precedent for rule changes at the beginning of a session when rules are adopted.

Posted by: srw3 | March 18, 2010 7:44 PM | Report abuse

I accept your apology.

Posted by: JakeD2 | March 18, 2010 7:47 PM | Report abuse

Did you see Biden at last night's press dinner? His poor delivery of the prepared "comic" routine just proved what a moron he really is! I hope nothing happens to Obama...because Joe is pathetic!


Posted by: my4653 | March 18, 2010 9:46 PM | Report abuse


You did miss something. The normal path for a Constitutional amendment is for both houses to pass with 2/3 votes, followed by ratification by 3/4 of the states.

However, 3/4 (I think) of the states can vote to call a Constitutional convention to consider amendments. Any amendments that come from this convention require 3/4 of the states to ratify. This method bypasses Congress entirely. BTW, the states don't need to agree on why they want the convention, they only need to agree that they want one.

Posted by: J-NC | March 19, 2010 8:18 AM | Report abuse

This is hilarious. Ezra supports Sarah Palin's view of the vice presidency. Who knew?

Posted by: bgmma50 | March 19, 2010 4:13 PM | Report abuse

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