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Filibuster Catch 22

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Yesterday, on the official first day of the U.S. Senate, a trio of Democratic Senators tried to change the rules of the Senate to quell the rising tide of filibusters which have altered the way the Senate traditionally does the Peoples' business.  Senate rules may only be changed at the beginning of a new Congress, and theirs was an effort to change three rules by 51 votes, not 67, under unanimous consent.

Sen. Tom Harkin, D-IA, offered Sen. Resolution 8, which would amend the standing rules of the Senate to invoke cloture (to bring a vote to the floor) with less than 3/5 majority.  Sen. Tom Udall, D-NM offered Sen Resolution 10, which: 1) cut to two hours debate on motions to proceed, 2) eliminates secret holds, 3) gives both parties the right to offer amendments, 4) requires Senators to stand and debate when filibustering, and 5) reduces the time of debate on nominations to two hours.  Sen. Jeff Merkley, D- OR, offered Sen Resolution 21, his stand alone bill to require actual Senate debate when filibustering. 

Scene in Uncle Sam's Senate
(Image by Edward Williams Clay)
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Udall noted there was only an average of one filibuster per year from 1900 to 1970;  in the most recent Senate, that number rose to 68.  "It's become a means where the minority can stop us from debating anything," Merkley said.  Harkin echoed that sentiment saying, "41 Senators have veto power."

The three waited patiently and called for a member -" any member - of the Republican minority to appear on the floor as a courtesy to formally object to the resolutions.  Sen. Lamar Alexander, R-TN, ranking member of the Rules Committee finally arrived, and objected to each, saying they would be willing to consider the rule changes with 67 votes, as provided by Rule XXII.  

So let's see:  41 Senators can currently prevent any legislation from reaching the floor for a vote, and 34 Senators can prevent that rule from ever being changed.

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In short, the Senate rules are victims of a Catch-22 put into place in 1957 by then Senate Majority Leader Lyndon Johnson.  Rule V was then amended to say the rules of the Senate were "continuing" and would only be amended as provided by rule XXII, which requires a 2/3 majority.  This effectively made those rules binding on future generations, and makes changing rules concerning filibusters a practical impossibillity.

There was much discussion as to the Constitutionality of the these rules;  Harkin noted that the Constitution provides that "each body can adopt its rules," and that it does not specify a supermajority to do so.  The Constitution does specify just five instances where supermajorities are required;  they include approval of treaties and impeachment.   All other business, Harkin says, is to be approved by a simple majority of 51 votes.  Harkin said that Senators take an oath to uphold the Constitution;  he questioned whether the current rules concerning filibusters "take away my Constitutional right to adequately represent my constituents."

More discussion of this topic is expected to continue throughout the week.



Sue Wilson is an award winning reporter, editor of SueWilsonReports.com, and Director of the media reform documentary "Broadcast Blues."

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Sue Wilson tells important stories which move politicians to act. The Emmy winning director of the media reform documentary "Broadcast Blues" and editor of SueWilsonReports.com, Sue recently founded the Media Action Center. Wilson was 1987's (more...)

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