Harry Reid, who was for the filibuster before he was against it, has determined that this hallowed protection of the political minority from the tyranny of the majority must end. First, some background.
The Senate’s filibuster process is enshrined in two Senate rules, Rules 22 and 5. Rule 22 says in pertinent part
“Is it the sense of the Senate that the debate shall be brought to a close?” And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn—except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting—then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.
Thus, if only 90 Senators of 100 sitting are present, ending the filibuster would still require 60 votes.
Rule 5 is this, in its entirety:
SUSPENSION AND AMENDMENT OF THE RULES
1. No motion to suspend, modify, or amend any rule, or any part thereof, shall be in order, except on one day’s notice in writing, specifying precisely the rule or part proposed to be suspended, modified, or amended, and the purpose thereof. Any rule may be suspended without notice by the unanimous consent of the Senate, except as otherwise provided by the rules.
2. The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.
There are three items of interest here:
- it takes a 2/3 vote of sitting Senators to approve a Rules change
- a rules change effort requires at least a one-day advance notice
- rules continue from one Congressional session to another—that’s why they’re called “Standing Rules.”
As Hans A von Spakovsky, writing in the National Review Online, puts it,
[T]he Senate has always considered itself a continuing body, because only a third of its members are up for election at any one time.
Now the move. Enter stage left, the Progressive Senator from Nevada, Majority Leader Harry Reid (D, NV). Reid has announced that he will move to alter (eliminate) Rule 22 (the filibuster rule) in the coming Congressional session. And he’s said he’ll do it
on the first day of the new session
it will take only a simple majority of 51 votes to shut down debate on the proposal.
There are three items of interest here, too.
- a minor point: he cannot do this on the first day of the new session; Rule 5 demands a day’s prior notice—this means he cannot attempt his change until the second day.
- a critical point: he cannot do this without a 2/3 vote to end debate on his proposed change—no simple majority allowed—unless
- a critical point: he violates Rule 5 (again) by disregarding the fact that the Senate’s Rules continue from Congressional session to Congressional session. That’s the only way he can get from a super majority to shut down debate on his Rule change to a simple majority.
There’ a fourth item of interest, too. This is what Reid said in 2005, when the Republicans were contemplating a similar move:
For people to suggest that you can break the rules to change the rules is un-American. …a rule that now says to change a rule in the—in the—Senate rules to break a filibuster there still requires 67 votes…. But now we’re told that they’re going to…come in here and have the Vice President [preside], and he would just say the Parliamentarian, which would acknowledge that it’s illegal, it’s wrong…he would just overrule. You would be breaking the rules to change the rules—very un-American.
The filibuster is far from a “procedural gimmick.” It is part of the fabric of this institution. It was well known in colonial legislatures, and it is an integral part of our country’s 217 years of history.
The roots of the filibuster can be found in the Constitution and in the Senate rules.
If Republicans rollback our rights in this Chamber, there will be no check on their power. The radical, right wing will be free to pursue any agenda they want.
And from President Barack Obama, through Dan Pfeiffer, his White House Communications Director:
The President has said many times that the American people are demanding action. They want to see progress, not partisan delay games. That hasn’t changed, and the President supports Majority Leader Reid’s efforts to reform the filibuster process.
Which follows Senator Obama’s remarks on filibuster in 2005:
What [the American people] don’t expect is for one party—be it Republican or Democrat—to change the rules in the middle of the game so that they can make all the decisions while the other party is told to sit down and keep quiet.
…that if the majority chooses to end the filibuster, if they choose to change the rules and put an end to democratic debate, then the fighting and the bitterness and the gridlock will only get worse.
Is there any clearer demonstration of the dishonesty of the Progressive Movement in the United States government?