Filibuster change: the countdown to ‘Humpty Dumpty’ rules?

“I love the Senate, but right now the Senate is broken and needs to be fixed. It’s time for course correction.”
– Senate Majority Leader Harry Reid (D-Nevada), speaking at the Center for American Progress, Monday morning

Something that could shake the bustling tunnels beneath the U.S. Capitol is about to be released by Sen. Reid – a recipe for ending the gridlock that is keeping President Obama’s nominees to executive branch appointments from being confirmed by the United States Senate, under its constitutional obligation to advise and consent. Reid is holding fast to his threat to change the Senate rules regarding the filibuster, to make it easier for “whoever is president, [to] have the ability to pick their team.”

A joint conference of the entire Senate, held Monday night, in the Senate chamber, was unsuccessful in finding a solution to this problem. According to reports, an offer by McConnell to allow the seven held nominations to come to a vote, if Reid doesn’t change the rules, was declined by the majority leader. “It was a good hearing, a good meeting, good exchange of views and still no conclusions,” Sen. John McCain (R-Arizona) told The Hill. “We continue to negotiate and we continue to talk and then I’m afraid the majority leader may schedule a vote unless we reach some agreement.”

Reid calls his plan “a minor change, no big deal.” But many observers, even those who support filibuster reform, say the maneuver is a slippery slope, with cascading side effects that may be worse than the gridlock itself.

“Senator Reid would be opening a Pandora’s Box if the and the Democratic majority were violate the Senate rules by resorting to a subterfuge like the nuclear option to ‘amend’ the Senate rules,” Emmet J. Bondurant, the lead attorney in a lawsuit against the U.S. Senate to end the filibuster on constitutional grounds, wrote to us in an email.

He warned that such a move would shatter any semblance of order in the upper chamber, and create “a lawless Senate in which ever-shifting majorities are free, like Humpty Dumpty, to invoke the nuclear option whenever they find it inconvenient to abide by their own rules.”

Yet Harry Reid said, on NBC’s Meet the Press, Sunday, that he sees the critics of the move running around, clucking, “[T]he sky is falling,” and that his proposal will not be that draconian. “We’re not doing anything that affects lifetime appointments [like federal judges]. We’re doing nothing that affects legislation,” he insisted.

So what are they going to try to do, anyway? While Leader Reid has been coy about his plan, Bondurant thinks it will be similar to what the Republicans tried to do, under President George W. Bush, when they held the majority in the Senate, and Bill Frist was majority leader, except instead of reducing the cloture threshold for judicial nominees:

“Under Senator Reid’s version of the nuclear option, the Senate would be able to proceed with debate on the merits of executive branch nominations and close debate on those nominations by vote of a simple majority of a quorum, instead of the 60 votes required by Rule XXII.

“A Democratic senator would invoke the nuclear option by raising a point of order asking the presiding officer for a parliamentary ruling that Rule XXII’s 60 vote requirement does not apply to executive branch nominations. If the presiding officer overrules the point of order and rules that that Rule XXII’s 60 vote requirement applies to executive branch nominations, the Democrats would then appeal that ruling to the full Senate, which could overrule the the chair by vote of a simple majority of senators present and voting, thereby establish a new ‘precedent’ interpreting Rule XXII, without formally amending the Rule which contains no ‘executive branch’ exception to its requirement that 60 votes be required to close debate on any matter pending before the Senate.

“Conversely if the presiding officer were to sustain the Democrats’ point of order by ruling that Rule XXII does not apply to executive branch nominations, the burden would then fall to the Republicans to appeal that ruling to the full Senate, which could establish a new Senate precedent by upholding the ruling of the chair by a simple majority vote.”

Some pundits have proffered that Reid may be “bluffing” so that they can reach another compromise before the majority leader calls for a cloture vote, Tuesday. While no one can be certain, Senate Minority Leader Mitch McConnell (R-Kentucky) told David Gregory, Sunday, that although he supported the Republican threat almost ten years ago, under Sen. Frist, “We went to the brink and we pulled back because cooler heads prevailed, and we knew it would be a mistake for the long-term future of the Senate and the country. That’s what I hope is going to happen here.”

As for Bondurant, his lawsuit against the Senate continues, because he doesn’t think this is a problem, under its current rules, that the body can solve by itself. “The Supreme Court has ruled in no fewer than three cases* that the proper interpretation of a Senate rule [and] of a House rule is a question of law for the courts.”


*Mr. Bondurant says the three Supreme Court cases he refers to are: United States v. Smith, 286 US 6 (1932), Yellin v. United States, 374 US 109 (1963) and; Christoffel v. United States, 338 US 84 (1949)

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