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

[Meadmaker]

The arguing about procedures related to the health care bill got me thinking about House and Senate "rules". Do these things have the force of law? I got to wondering whether laws were overturned if they were passed in violation of the rules as they existed at the time in the House or Senate. This came up because there are a couple of rules being discussed now that are somewhat subject to interpretation. What happens if, after passing the law, someone decides that the rules were broken?

To illustrate, I'll posit a hypothetical relating to some more clear cut rules that are better understood. Imagine that a Democratic Congressman introduced legislation making Bill Clinton's birthday a national holiday. It passes the House, but faces a Republican filibuster in the Senate. The Senate can't vote on it because they can't close debate on the proposed legislation.

The log jam continues until one day, with the Senate in session, Joe Biden walks into the chamber, grabs the gavel and declares, "I am the President of the Senate, and today I declare that we are voting on the Former President's Birthday Bill. Mr. Byrd, how do you vote?"

Mitch McConnell immediately rises and objects to this flagrant violation of the Senate's rules, to which Biden responds, "The gentleman from Kentucky is invited to go play in traffic. Shut up. Mr. Byrd?" Of course, the minority party is up in arms, but Mr. Byrd answers "yes", Biden proceeds to call the roll, and records 51 yes votes, and declares the bill passed, sends it to the President who signs it, and....then what?

So now we have a law that got a majority vote in the House, and a majority vote in the Senate, and was signed by the President. The minority party, though, is quite rightly up in arms about the situation. The bill was passed in a manner that everyone agrees was against the rules. So, to whom does the minority party complain? Do they sue? Does the Supreme Court overturn the law, or do they declare that the Senate's rules are their own business. The constitution says that a bill has to be voted on by two houses, and get a majority vote, and be signed. It was. It's law.

This sort of flagrant violation is not likely to happen, but we might be heading toward a slightly different situation soon, in which one side claims the rules have been violated, but the other side insists there were no violations. Who decides, and what are the consequences? Are there Supreme Court cases that establish precedent for such situations?

 

[drkitten]

The arguing about procedures related to the health care bill got me thinking about House and Senate "rules". Do these things have the force of law? I got to wondering whether laws were overturned if they were passed in violation of the rules as they existed at the time in the House or Senate. This came up because there are a couple of rules being discussed now that are somewhat subject to interpretation. What happens if, after passing the law, someone decides that the rules were broken?

[...]

So now we have a law that got a majority vote in the House, and a majority vote in the Senate, and was signed by the President. The minority party, though, is quite rightly up in arms about the situation. The bill was passed in a manner that everyone agrees was against the rules. So, to whom does the minority party complain? Do they sue? Does the Supreme Court overturn the law, or do they declare that the Senate's rules are their own business. The constitution says that a bill has to be voted on by two houses, and get a majority vote, and be signed. It was. It's law.

This sort of flagrant violation is not likely to happen, but we might be heading toward a slightly different situation soon, in which one side claims the rules have been violated, but the other side insists there were no violations. Who decides, and what are the consequences? Are there Supreme Court cases that establish precedent for such situations?

No. This would be a classic "constitutional crisis" where the document as written doesn't provide much help (rather like when Nixon insisted that he wasn't subject to the authority of SCOTUS rulings, but fortunately resigned before that actually came to a head).

The constitution says that "Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member," so the only authority on whether or not the rules of the Senate have been followed is ... the Senate itself. There's a good chance that the SCOTUS would refuse to rule on such a case, and there's a good chance that even if they did rule, it would be to cite that clause and hand the whole mess back to the Senate.

What I suspect would happen if such an incident occurred is that the Senate would simply decide by majority vote to overlook the rule violation, which would close the parliamentary loophole and end up getting settled in the long term the following November. If Biden were willing to completely ignore the rules and could get 51 senators to go along with it, he could probably get that same group of 51 senators to agree to set the rules aside....

 

[JoeTheJuggler]

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.

I suspect if the case happened as you described, it would be a sort of de facto "nuclear option". If a majority in the Senate went forward with a vote despite there being a filibuster, then it would be a sort of constructive vote to do away with the filibuster.

In fact, I think in the real world, it would happen only with an overt vote to change the rule before a vote on the legislation in question.

 

[Region Rat]

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.

I suspect if the case happened as you described, it would be a sort of de facto "nuclear option". If a majority in the Senate went forward with a vote despite there being a filibuster, then it would be a sort of constructive vote to do away with the filibuster.

In fact, I think in the real world, it would happen only with an overt vote to change the rule before a vote on the legislation in question.

I guess they could then just vote on the Clinton's Birthday law and deem the filibuster done away with.

 

[drkitten]

I guess they could then just vote on the Clinton's Birthday law and deem the filibuster done away with.

This makes no sense. I'm not really sure what your point is,.... but, yes, "the Senate" is what makes the rules for "the Senate." If "they" vote to do anything, it means whatever "they" say it means, because no one else is empowered to contradict them.

 

[Region Rat]

This makes no sense. I'm not really sure what your point is,.... but, yes, "the Senate" is what makes the rules for "the Senate." If "they" vote to do anything, it means whatever "they" say it means, because no one else is empowered to contradict them.

I forgot the stupid smiley. I know that doesn't make it any better, but come on, give me a break.

 

[JoeTheJuggler]

This makes no sense. I'm not really sure what your point is,.... but, yes, "the Senate" is what makes the rules for "the Senate." If "they" vote to do anything, it means whatever "they" say it means, because no one else is empowered to contradict them.

I think it was meant as a criticism of the House's considering to invoke the self-executing rule to pass the Senate version of the healthcare reform bill along with a set of amendments to it with no separate vote on the Senate bill itself.

Of course this makes no sense, because the self-executing rule is a House rule and the filibuster is a Senate rule.

 

[Meadmaker]

Of course the rules passed in the Senate and the House have the force of law. They are laws.

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.

 

[dudalb]

THe Filibuster is an internal Senate rule.The Senate could abolish it at any time by a simple vote to get rid of the prodedure. The Supreme Court would not touch a case against it with a ten foot pole.

 

[drkitten]

THe Filibuster is an internal Senate rule.The Senate could abolish it at any time by a simple vote to get rid of the prodedure. The Supreme Court would not touch a case against it with a ten foot pole.

Well, given the current composition of the Supreme Court,.... let me just put it this way. I'm not entirely convinced that Justice Alito has even read the Constitution.

So I'd be surprised but not stunned if the same gang-of-five that gave us Bush vs. Gore decided that filibusters were constitutional but only when Republicans used them.

 

[dirtywick]

It'd probably bite them in the ass later.

 

[JoeTheJuggler]

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.

OK, you're right on that point. But they are legally-formulated rules. The SCOTUS would not be able to strike them down. But the Congress (or the individual houses) can do so if a majority chooses. So your hypothetical sounds like saying, What if a majority in the Senate chooses to do away with the filibuster? As I said in my first reply, that's the "nuclear option" and the Senate is free to do that whenever they want. They're also free to re-instate the filibuster (by majority vote) at some future time.

I realize you're trying to suggest a hypothetical where the majority just ignored the rules and did what they wanted, but that doesn't make a lot of sense. It would be like asking whether a given team in a football game could win the game by flagrantly ignoring the rules. Unfortunately things like passing a law or winning a football game are only defined by following the rules.

I suppose if your hypothesis is that the majority in the Senate takes up arms and forces the body to agree (at gunpoint) to passing a law in contradiction to the current rules, then the rest of the country is free to use "might makes right" to ignore the laws that were passed that way.

I do believe in that situation, though, the executive branch could and should step in to restore order.

 

[Bob Klase]

I do believe in that situation, though, the executive branch could and should step in to restore order.

Except the executive branch has no authority to step in and doing so would be rightly seen as an attempt to take over 1/3 of the government- much like a coup.

 

[Meadmaker]

I realize you're trying to suggest a hypothetical where the majority just ignored the rules and did what they wanted, but that doesn't make a lot of sense. It would be like asking whether a given team in a football game could win the game by flagrantly ignoring the rules. Unfortunately things like passing a law or winning a football game are only defined by following the rules.

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.

 

[rjh01]

You want a specific case? Sorry cannot give you an American one but I can give you an Australian one.

Year 1975. Background - The Governor General was a Government appointee. The constitution says the Governor General can appoint and sack ministers. Convention says he does what the Government tells him to. In the 110 years this is the ONLY important case where this convention was ignored.

What happened.
The Labour Government was in deep *** trouble. Very unpopular with the people. It also could not get its budget though the upper house, because it did not have a majority there. Soon they would not be able to spend money. Then on November 11 1975 the Governor General struck. He sacked the Prime Minister, who then said "May God save the Queen, because nothing will save the Governor General." He appointed the Liberal leader as Prime Minister. The budget was then passed (big mistake on the Labour party), and an election held. The old Labour Government lost badly. The Governor General, well let us just say, that on a certain important day he made a speech and gave the impression of being very drunk.


The point is that yes, you can ignore rules, however there may be unintended consequences for what you do.

 

[XBoxWarrior]

I don't know the exact details, but I know that the proposed legislation has to meet certain requirements about reducing the deficit.

And how did the Bush tax cuts reduce the deficit?

They were, after all, passed under reconciliation...oh yeah, cutting taxes increases revenue.

IN BIZZARO WORLD.

Reconciliation only need meet some budgetary necessity.
(+/- doesn't matter)

 

[Freddy]

THe Filibuster is an internal Senate rule.The Senate could abolish it at any time by a simple vote to get rid of the prodedure. The Supreme Court would not touch a case against it with a ten foot pole.

Well, it could change it, but to change any Senate rule in mid session requires a 2/3 majority, or 67 votes. Of course the rule that says you need 2/3 is also an internal Senate rule, so...[head explodes]

 

[Freddy]

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.

But I think the Court would more likely stand back and pray that the people would be so pissed off about the whole thing that they'd vote the bums out. That is supposed to be the check on the kind of shenanigans described in the OP.

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.

 

[BenBurch]

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

 

[JoeTheJuggler]

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.

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 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.

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:

reconciliation bill - A bill containing changes in law recommended pursuant to reconciliation instructions in a budget resolution. If the instructions pertain to only one committee in a chamber, that committee reports the reconciliation bill. If the instructions pertain to more than one committee, the Budget Committee reports an omnibus reconciliation bill, but it may not make substantive changes in the recommendations of the other committees.

And here's the definition of reconciliation instruction:

reconciliation instruction - A provision in a budget resolution directing one or more committees to report (or submit to the Budget Committee) legislation changing existing law in order to bring spending, revenues, or the debt-limit into conformity with the budget resolution. The instructions specify the committees to which they apply, indicate the appropriate dollar changes to be achieved, and usually provide a deadline by which the legislation is to be reported or submitted.