What if they held a filibuster, and nobody stopped voting?

[Freddy]

No crisis at all. Filibuster is merely a Senate Rule. It can be changed at any time.

But the Senate has internal rules about how to change internal rules. In mid session, it takes a 2/3 super-majority. Suppose a bare majority ignored existing rules that are still in effect, without having enough votes to change the rule they are violating, and simply refused to acknowledge that they lacked the votes to invoke cloture. That would be a true crisis, I think. Obviously, if they had the votes to change the rule first, that would be perfectly all right.

 

[Freddy]

And a lot of people are wrong. The Tea Baggers were shouting that these rules are unconstitutional (apparently under the misconception that they were just invented in this Congress).

Calling the self executing rule the "Slaughter-House rule" is misleading (it implies a new rule just cooked up by Slaughter). As has been amply pointed out, the rule has been used many times in recent years (30-something times by the most recent Republican-controlled Congress and 40-something times by the Democrat-controlled Congress prior to that), and has been used on large, important and even controversial legislation.




It's just limited to budgetary items. As has also been mentioned, the Byrd rule can be raised to challenge reconciliation on the grounds that the changes to the law are beyond the scope of the budget.

Here's the definition of a reconciliation bill as given by the Senate's website:



And here's the definition of reconciliation instruction:

You are correct, provided that the Senate health care bill becomes law before reconciliation proceeds. That means the House must pass the exact same bill the senate passed. It may also require that Obama sign the Senate bill, since a bill is generally not considered to be law until it is signed. Budget reconciliation can only be used to change existing law. As long as the House passes the Senate bill in its original form, there is no problem with them passing their own reconciliation bill, even with the same vote - but the House's fixes to the bill would become law only if the Senate passes a bill identical to the fixes bill, or if a compromise bill is passed in both houses. Not that anything I've said here contradicts your post. I'm merely clarifying. Everything in this post of mine is consistent with what you've said here.

And there is nothing wrong with calling deem and pass "the Slaughter rule," at least in principle. To the extent that "slaughter rule" has become a pejorative, it may be better to use other language. But this way of proceeding was suggested by Rep. Slaughter. Apart from the recently added baggage, it's no different than saying "the Byrd rule" when referring to the rule that budget reconciliation provisions must be strictly budgetary.

 

[Beerina]

Of course the rules passed in the Senate and the House have the force of law. They are laws. But they're laws that only affect the procedures in the House and/or Senate.

You mean their own rules of parliamentary procedure, or whatever it's called? The Constitution does explicitly charge them with making their own rules, and they can use the Sargent-at-Arms to enforce them (also mentioned in the Constitution, IIRC, and, yes, he can literally go get someone and drag them kicking and screaming to the floor for a vote -- in Texas some years ago a bunch of state Democrats fled to Oklahoma to prevent the Texas legislature's sarge-equivalent from forcing them to return for a vote. At that point, the "do we have enough for a quorum" rules come into play, and evidently not in that case.)

It's a good point, though. If the vote to pass the law (which satisfies the Constitution) violates the rules then-in-effect (mentioned by the Constitution), is the bill validly passed? In other words, if the rules require everybody to shut up before a vote (source of the power of the filibuster) and the leadership skips this and just forces a vote, is it valid?

 

[Meadmaker]

Now if the procedure used blatantly violates the minimum Constitutional requirements of bicameralism and presentment (which are required for valid enactment), then the Court may well step in. A bill that is not validly enacted is not law, and the question is then properly Constitutional rather than merely a matter of internal procedure.

In that case, I agree that the court would step in. At least, I would hope they would. However, I don't think they have ever stepped in to enforce a rule, and I'll take bets that some time in the last 220 years somebody has felt that legislation was passed in violation of some rule or another. More than that, I'll take bets that some time in the last 220 years, at least one bill has been passed where the rules were definitely violated, and the losing party didn't bother going to court, because they knew what the results would be.


With respect to filibusters, here's what I could easily see happening in the future.

There are a lot more filibusters lately than there used to be. Certainly, this Congress seems to be not the least bit reluctant to use it. Sooner or later, there will come a Congress where the minority is blocking darned near everything the majority wants. Eventually the majority party decides the "nuclear option", of getting rid of filibusters altogether is the way to go. The catch here is that, according to the rules, it would take more votes (2/3) to invoke the "nuclear option" than it would to break a filibuster. In other words, if they don't have the votes to break one filibuster, they don't have the votes to break all of them simultaneously.

At that point, I can see the Senate passing a new rule that gets rid of the 2/3 rule, and doing it by majority vote, which is clearly a violation of the rules, then invoking the nuclear option to get rid of the filibuster, also by a majority vote. I think it would be perfectly legal and the courts wouldn't intervene.

They might not be quite so blatant. They might invent some sort of sidestep procedure whereby they declare that some other rule applies to all pending legislation and that somehow, all filibusters can't be done, but somehow someone finds some sort of loophole that helps them get around the 2/3 rule without flagrantly ignoring it.

Event the milder, "loophole" procedure would be a drastic step, but I think it will happen in my lifetime, which the insurance agencies say should be about another 25-30 years.

 

[Brainster]

Wouldn't it be much simpler if Obama just declared himself President-for-Life and did away with the Senate and its undemocratic procedures and rules?

 

[Meadmaker]

In an entire lunch hour of frantic googling, the only Supreme Court case I have found that even touched on the issue was United States v. Ballin. It dealt with a law which Mr. Ballin claimed was not duly enacted. This act, which was:

'An act providing for the classification of worsted cloths as woolens. Be it enacted,' etc., 'that the secretary of the treasury be, and he hereby is, authorized and directed to classify as woolen cloths all imports of worsted cloth whether known under the name of 'worsted cloth' or under the names of 'worsteds' or 'diagonals,' or otherwise.


The key point was whether enough representatives were present to enact the law. The court ruled that the law was enacted properly. In doing so, they seemed to uphold the notion that the majority of members of each house could, at any time, enact whatever rules they felt like, and they could do it at any time.

In other words, if it's really important, the majority can change the rules whenever they want to, regardless of the rule that says they need a 2/3 vote to change a rule.

I couldn't find any reference to any case where the Supreme Court actually ruled on whether or not a rule was valid, or whether or not a rule was followed. I think they avoid that sort of thing on purpose.

Other trivia I learned while searching:

The word "filibuster" is derived from a Dutch word meaning "pirate".

My understanding of the "nuclear option" was faulty. I thought it was a change in rules which eliminated filibusters. It was actually used to refer to a procedural option which had the majority declaring debate to be closed, and then, when the minority objected, tableing his appeal, which then allowed the original vote to be taken.

 

[drkitten]

Wouldn't it be much simpler if Obama just declared himself President-for-Life and did away with the Senate and its undemocratic procedures and rules?

It would indeed. Not that it's likely to happen, because he couldn't get the necessary support from the legislature and the SCOTUS -- or from the Armed Forces, as would almost certainly be necessary if he tried that sort of a coup.

But I'm glad to see the high standards of Republican critical thinking going on, when they consider questions about whether the Senate has the authority to change its own internal rules to be the equivalent of the President establishing a banana-republic dictatorship.

Nothing like a little sense of perspective, in other words, to show that the Obama detractors have no sense of perspective whatsoever.

 

[JoeTheJuggler]

Other trivia I learned while searching:

The word "filibuster" is derived from a Dutch word meaning "pirate".

That's great! I always assumed it was just a sort of portmanteau involving the word "bluster" somehow. Thanks for that bit of trivia.

My understanding of the "nuclear option" was faulty. I thought it was a change in rules which eliminated filibusters. It was actually used to refer to a procedural option which had the majority declaring debate to be closed, and then, when the minority objected, tableing his appeal, which then allowed the original vote to be taken.

I think the "nuclear option" refers to any procedure that would have the effect of doing away with the filibuster (not just in this instance, but pretty much from now on). If what you describe here happened, it would have that effect, wouldn't it?

In other words, if the party in power did this, it would establish a precedent for closing a filibuster. When that same party is in the minority, they too will not be able to stop a vote by a filibuster.

 

[Dunstan]

In an entire lunch hour of frantic googling, the only Supreme Court case I have found that even touched on the issue was United States v. Ballin.

The cases I'm seeing cited most often in discussions of these issues are INS v. Chadha and Clinton v. New York (sorry, don't have the cites handy), and Field v. Clark, 143 U.S. 649 (1892). At the circuit level, Public Citizen v. District Court is a 2007 D.C. Circuit decision that may have some relevance.

 

[Freddy]

The cases I'm seeing cited most often in discussions of these issues are INS v. Chadha and Clinton v. New York (sorry, don't have the cites handy), and Field v. Clark, 143 U.S. 649 (1892). At the circuit level, Public Citizen v. District Court is a 2007 D.C. Circuit decision that may have some relevance.

Here are those cites for you.

Clinton v. City of New York, 524 U.S. 417 (1998).

Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983).

Clinton v. New York is cited for its description of how a bill is validly enacted (exact same text approved by both Houses and signed by President).

In Chadha, the Supreme Court held that the House of Representatives' legislative veto of a determination made by the Attorney General was invalid, because it was not passed by the Senate and signed by the President. It forbids what is called the "one-house veto."

Another case of interest is United States v. Munoz-Flores, a 1990 SCOTUS decision which in footnote four says the following:

Justice SCALIA apparently would revisit Powell. He contends that Congress’ resolution of the constitutional question in passing the bill bars this Court from independently considering that question. The only case he cites for his argument is Field v. Clark, 143 U. S. 649 (1892). But Field does not support his argument. That case concerned “the nature of the evidence” the Court would consider in determining whether a bill had actually passed Congress. Id. at 670. Appellants had argued that the constitutional clause providing that “each house shall keep a journal of its proceedings” implied that whether a bill had passed must be determined by an examination of the journals. See ibid. (quoting Art. 1, § 5) (internal quotation marks omitted). The Court rejected that interpretation of the Journal Clause, holding that the Constitution left it to Congress to determine how a bill is to be authenticated as having passed. Id. at 143 U. S. 670–671. In the absence of any constitutional requirement binding Congress, we stated that “[t]he respect due to coequal and independent departments” demands that the courts accept as passed all bills authenticated in the manner provided by Congress. Id. at 143 U. S. 672. Where, as here, a constitutional provision is implicated, Field does not apply.

 

[Freddy]

I do not believe that you are correct. Laws are passed by both houses and signed by the President. Rules are passed by one house and signed by no one.

I think DrKitten is correct. The Supreme Court would rule that it wasn't their problem. Even if there was a flagrant violation of the rules, I think all they would look at was whether the bill got a majority vote in both houses, regardless of how it got there.

Part of my question, though, related to whether this is correct. I'm sure that somewhere in our nation's history some controversial legislation has been passed, and the losing side felt it was passed in violation of the rules. Did the losing side go to court over it, and did they win?

In practice, I'm sure such a flagrant violation as my hypothetical would not occur. They might change the rules before the vote, but they wouldn't just ignore them. However, even if they did, would it be unconstitutional? I don't think so.

This is right, I think. The question with the health care bill would be whether a majority of the House really voted to approve the Senate bill without amendments, because that is a prerequisite for the Senate to use reconciliation to change it. Otherwise the filibuster would be in play. I'm not sure that the question is justiceable, but the Supreme Court's decision in United States v. Ballin, 144 U.S. 1 (1892), suggests that it might be.

 

[DevilsAdvocate]

The Court would not step in to challenge any purely procedural rule in either House, but since the Constitution says that both Houses set their own rules, and since rules are things you have to follow, the Court might be willing to say that the Senate must follow whatever procedures it sees fit to establish.

I think that is most likely what would happen if, somehow, such a thing ever occurred and was not resolved Congress of the President. However, I think the courts would only take on the case as a constitutional issue if it was quite clear that the only reason a bill was passed was because of a flagrant violation of the rules. Congress does not want to start a precedent of the courts mucking about in their procedural rules, which is one of several reasons why it is unlikely that it would ever occur.

 

[Freddy]

That is what my hypothetical is about, but it exists for the purpose of examining a very real situation that is going on right now, and I would guess has gone on in the past.

There are two high profile, much talked about, rules that are in the news today. One is "deem and pass", and the other is "reconciliation". One is a House rule. The other is a Senate rule. The Democratic leadership might use one or both of these rules in an attempt to get around the filibuster, which is also a Senate rule. A lot of people are saying that the way the Democrats are contemplating using those rules actually violates the rules of one or both houses of Congress.

It got me to wondering what would happen if that were the case. For example, there are certain conditions that have to be met in order to use the reconciliation rule. I don't know the exact details, but I know that the proposed legislation has to meet certain requirements about reducing the deficit. Therefore, they asked the CBO to score the bill so that it could be seen if it meets those requirements. Some Republicans are saying that the manner in which it was presented for scoring distorts the truth and that a realistic assessment would not show a deficit decrease, and would therefore not be eligible for reconciliation. If that's the case, but Democrats use it anyway, what is the Republican recourse?

So, that's the real situation that's really happening, but I don't want to get bogged down in the technical details of whether this specific bill raises or lowers the deficit. There's plenty of discussion about that going on elsewhere. What I am really wondering, for purposes of this thread, is what happens if the Democrats make use of those rules to avoid the filibuster, but do so in such a way that the Republicans claim that they broke the rules. To address that question, I created a hypothetical in which the issues were easily seen. I created a situation where there was no doubt at all about whether or not the rule was broken, but there was also no doubt at all about whether the legislation received a majority vote from both houses.

I think I know the answer. I think the rules are nothing more than gentlemen's agreements with absolutely no force of law. If one party feels that the other party violates the rules, their only recourse is to ask the Rules Committees of the House or Senate to make a ruling, and hope that the full Senate or House abides by the rules. If the majority decides not to act, and lets the violation occur, or, as may happen soon, the decision that the rule was violated is not handed down until after the legislation was passed and signed, I think that the legislation would stand, and the only penalty that would be faced by the rulebreakers is a potential backlash from voters at the ballot box.

To my knowledge, neither the original Senate bill nor the final "reconciled" law would have to be scored as reducing the deficit. It's just that the reconciliation bill that changes the Senate bill must improve that score.

 

[DevilsAdvocate]

The cases I'm seeing cited most often in discussions of these issues are INS v. Chadha and Clinton v. New York (sorry, don't have the cites handy), and Field v. Clark, 143 U.S. 649 (1892). At the circuit level, Public Citizen v. District Court is a 2007 D.C. Circuit decision that may have some relevance.

Public Citizen v. Clerk was the first thing I thought of when I read this thread. That was concerning the Deficit Reduction Act of 2005. That was a huge budget reconciliation bill. The House and Senate passed bills, so it went to conference.

Then the bill started bouncing back and forth between the House and the Senate. There was an 11th-hour amendment related to how long Medicare pays for some types of medical equipment. The bill ended up being changed from 36 months to 13 months. The Senate passed the bill with the 13 months. The House passed the bill, it was signed by the President, and became law.

It was later discovered that the version of the final bill that was delivered to the House had an apparent clerical error and still had in the older 36 months instead of the correct 13 months. The bill that went to the President had the correct 13 months. It was fairly apparent from the Congressional Record that both bills were supposed to have “13 months” and that the House knew that they were voting for the bill that still had the “13 months” provision in it. However, this was a very partisan bill (and even had to have Vice-President cats the tying vote in the Senate).

So lawsuits were filed to stop execution of the bill on the grounds that it was unconstitutional because the same versions of the bill had not been passed by both the House and the Senate.

Several members of Congress and some cabinet members filed a lawsuit. The suit was dismissed on the grounds of lack of standing, which basically means the people filing the lawsuit (the members of Congress, cabinet, etc.) were not directly affected by the case. That was probably mostly a cop-out by the courts to just not get involved.

A group called Public Citizen filed another suit. It was dismissed by the district court, which was based primarily on Marshall Field v. Clark. Basically the court said that if Congress affirms that the bill was passed by both houses and it is signed by the President, then it is law. The appellate court upheld the district court decision. The Supreme Court refused to review the case.

 

[Meadmaker]

After reading some of the decisions, and summaries of the others, I'm pretty convinced that the one and only thing that the court system would even involve itself in was a question of whether there was, indeed, a majority vote by both houses on the same bill. Any attempt to claim that such a law ought to be overturned on some rules technicality would almost certainly be rejected, and it's unlikely the suit would even be heard.


Thanks to Dunstan et. al. for providing information about specific cases that are relevant in this context.


Part of what motivated the question in this case was the outrage I was hearing on Thursday about how the Democrats were "shredding the Constitution". I thought Rush was going to have a stroke, he was so livid. The filibuster just never struck me as a constitutional right. It didn't seem like there was a real constitutional question here, other than a r one related to whether the vote, now scheduled for Sunday, was on one bill or two. I think the answer is one.

Of course, that would mean that reconciliation couldn't be used, unless they go ahead and use it anyway, because in the end all the courts will care about is whether the House and Senate voted on the same bill, with a majority of votes cast being for passage, and a quorum having existed as required by the Constitution.

It also seems to me that the majority could vote to end any filibuster they wished, and the only things that prevent it are a desire to preserve the right to use it themselves in the future, and a fear that voters might think that it was unfair to change the rules in the middle of the game, and a few of them might remember long enough to hold it against them in November.

As to my hypothetical from the OP, I think that even in such an extreme case, the courts would not care about the violation of the rules, only the question of whether there truly was a majority vote as required by the Constitution. However, I don't think anything so flagrant as that will ever happen, because there are procedural sidesteps that could dispose of a filibuster or, if they were truly extreme, they could simply vote, by simple majority to have a new rule that ended debate on that particular bill, or to throw out the cloture rule altogether.

 

[JoeTheJuggler]

After reading some of the decisions, and summaries of the others, I'm pretty convinced that the one and only thing that the court system would even involve itself in was a question of whether there was, indeed, a majority vote by both houses on the same bill. Any attempt to claim that such a law ought to be overturned on some rules technicality would almost certainly be rejected, and it's unlikely the suit would even be heard.

I agree.

Also, as I said in my first post, I think what you describe in the hypothetical in the OP would be the same as the "nuclear option". It would just mean the elimination of the filibuster in the Senate, and neither the executive or judicial branches would involve themselves in trying to force Congress to keep the filibuster.

 

[Freddy]

I agree.

Also, as I said in my first post, I think what you describe in the hypothetical in the OP would be the same as the "nuclear option". It would just mean the elimination of the filibuster in the Senate, and neither the executive or judicial branches would involve themselves in trying to force Congress to keep the filibuster.

Unless I'm mistaken, the nuclear option involves voting to change the rules. That's different from ignoring a vote that you lost.

 

[Meadmaker]

Unless I'm mistaken, the nuclear option involves voting to change the rules. That's different from ignoring a vote that you lost.

That's what I had assumed, too, but the nuclear option being discussed as a possibility a few years ago, when Republicans held the Senate and Democrats were filibustering, involved no vote to change the rules. Here's how it would have worked (I'll try to get this right. It's complicated.)

A minority senator wants to continue debate, i.e. filibuster.
The Vice President, as President of the Senate, declares that the minority senator's discussion is not germane to the issue, and delcares him out of order.
A minority senator raises an objection, and demands a vote on the question.
A majority senator asks that the vote on the objection be tabled.
The Vice President agrees, and tables the motion.
A minority senator objects, and has the right to a roll call vote on the motion to table the objection. This, however, is a procedural matter, and cannot be filibustered.
The minority loses the vote, and the filibuster is over, with no change in the rules.

They decided not to go through with it, but that's what was proposed, and I might have gotten details wrong. The key point was that the presiding officer would rule the filibustering senator out of order, and then table the objection that would be raised. When it was all done, there would be one vote on a procedural matter, which vote would require a simple majority, and the filibuster would be over.

 

[theprestige]

I'm guessing they decided not to go through with it because it would be extremely awkward for Dick Cheney, as President of the Senate, to personally take charge of the Senate on behalf of the Bush Administration... which is the same reason Obama hasn't bothered dispatching Biden to try the exact same thing now.

 

[JoeTheJuggler]

Unless I'm mistaken, the nuclear option involves voting to change the rules. That's different from ignoring a vote that you lost.

See Meadmaker's explanation. Also, MM's earlier post pointed out that to change the rules in mid session requires a supermajority. If they can't get the supermajority to vote for cloture to the filibuster, they couldn't get one to vote to change the rules. So there is almost no circumstance where that would be what is meant by the "nuclear option".