Skimmed the article -- good read. It suggests what has become of the Senate, not the institution itself, should go the way of the 3/5 compromise. And, at least that was a devil's bargain to deal with an issue that only ended via a war.

What will provide the road to sanity here? Abolish the Senate tomorrow, similar things will occur unless the underlining issues aren't addressed. The Senate, which the article has working as late as the 1970s, is not the ultimate problem.
 

Several years ago now one of my elderly neighbors was diagnosed with Alzheimer's. He was, at one time, a highly intelligent, thoughtful man, who lived alone in a house on our block.

For the several years before he was finally diagnosed, his life became ever more ritualized. You would see him doing odd things, such as replacing his front door at night. His house was filled with notes stuck to surfaces, notes which reminded him of things he needed to do but which he was afraid he'd forget, and everything in his house was organized so that he could find it without looking.

Unfortunately, as his condition deteriorated, even the devotion to procedure was insufficient, and ultimately the neighbors found him sitting in a chair, unable to remember where he was or what he needed to do.

Now, why did this tragic tale of senility remind me of the current state of the Senate?
 

Who can be optimistic about the future of this country?

I can. I have infinite faith in the common sense and ability of the American people when left alone to succeed. In general, having Congress unable to enact anything without majority support by the voters is a good thing, even if some of the rules are silly.

I challenge, incidentally, our right-wing friends who participate in the discussion to name the particular Republican or libertarian they wish to take the helm...

Are we talking about the presidency or congressional leadership?

In any case, here are my preferred leaders - Gingrich, Ryan, Pawlenty, Barbour, DeMint, Jindal - to name six. There are probably about 25 or so who would do a better job than the current regime, including Sarah Palin.
 

This yodelism:

"In any case, here are my preferred leaders - Gingrich, Ryan, Pawlenty, Barbour, DeMint, Jindal - to name six. There are probably about 25 or so who would do a better job than the current regime, including Sarah Palin."

sounds like a casting call for a "The Three Stooges" revival. Book 'im, Curley.
 

In any case, here are my preferred leaders - Gingrich, Ryan, Pawlenty, Barbour, DeMint, Jindal - to name six. There are probably about 25 or so who would do a better job than the current regime, including Sarah Palin.
# posted by Bart DePalma : 6:15 PM

Holy crap. You wingnuts are really screwed.
 

Yesterday's NYTimes (8/2/10) at page 9 features Jeff Zeleny's "In Iowa Tour (Yes, Already), A Republiacn Tests His Voice" and at page 11 a "Rogues' Gallery" view of 12 Republican Visitors to Iowa. including Rick Santorum. Soon the "usual suspects" will be in New Hampshire. This could be an expanded version of Agatha Cristie's "Ten Little Indians."

As yet, no one has taken Sandy's challenge:

" (I challenge, incidentally, our right-wing friends who participate in the discussion to name the particular Republican or libertarian they wish to take the helm, unless, of course, they are true anarchists who believe we can do without government at all.)"

Just one, please.
 

Anybody *I* would like to see elected President would face the united opposition of both major parties' leadership, and so have no chance, which kind of reduces the resources I put into looking. But it's a fair question:

Ron Paul. He's getting on in years, but I think he's the best potential President around. it's a pity he's so old, if not I think he'd actually have a shot in 2012, the GOP base, if not it's establishment, has come around.
 

Professor Levinson writes:-

”No sane country designing a constitution today would establish an institution like the United States Senate.”

That’s a bit like the response of the Irishman to the tourist who asked the way to Kinsale: ”If I were you, I wouldn’t start from here!”.

Our 1911 Parliament Act declared that the House of Lords should be reformed so to created an elected second chamber without the hereditary peers – and we are still working on it with a view to completion in time for the 100th anniversary of the 1911 Act – a paradigm case of festina lente.

We know that Madison and Hamilton both wanted a second chamber to act as a brake on the enthusiasm of the “peoples’ house” with older and hopefully wiser heads. And there’s a charming story of Washington being asked in France ”why did you put milk in your [democratic] coffee? to which the great man answered: ”To cool it!” I happen to support the principle of bicameralism for much the same reasons.

I of course accept that it would, in principle, be a laudable objective to change the basis on which senators are elected. Alternatives to the present indefensible system can be debated. However your Founding Fathers deliberately made the constitutional amendment process quite difficult and perhaps that was wise. So leave that on the back burner.

The procedural rules of the Senate should be the immediate target and we shall see whether there is some progress. I can so no more than express the hope that it not take as long as House of Lords reform is taking in the UK.
 

Dear Bart says above:-

” In general, having Congress unable to enact anything without majority support by the voters is a good thing, even if some of the rules are silly.

This willingness to see subversion of the very principle of representative democracy, namely that the elected majority have the right to carry out their programme of government so long as they remain a majority, seems to be quite widespread on the extreme right. So there may be quite lengthy gridlock.

Many will be familiar with the Greek axiom that all forms of government known to man carry within them the seeds of perversion to a baser process – monarchy to tyranny, aristocracy to oligarchy, etc. And the seeds of perversion for democracy lie in the demagogues.

In today’s LA Times, David Klinghoffer has some harsh words to say about today’s conservatives:
From neocons to crazy-cons:

”Once the conservative movement was about finding meaning in private life and public service…[but]…With its descent to baiting blacks, Mexicans and Muslims, its accommodation of conspiracy theories and an increasing nastiness and vulgarity, the conservative movement has undergone a shift toward demagoguery and hucksterism”

But perhaps because he is, himself, a conservative, Mr Klinghoffer is too kind. There has not just been ”a shift towarddemagoguery” - very many of the leading lights of the GOP conservative right are already indulging themselves to the full.

I am entirely unsure that the Administration and the Democratic leadership are doing all that should be done to counter the demagogues and keep control of the House and the Senate in November.

Take for example the vicious falsehood that the Administration’s healthcare legislation has brought in ”death panels” The Kaiser Family Foundation July Poll reports:

Seniors’ awareness about the specific provisions of the health reform law that affect Medicare is mixed. For example, about half are aware that the new law will result in premium increases for some higher income Medicare beneficiaries (52%) and gradually close Medicare’s “doughnut hole” (50%). However, just a third (33% ) know the law will eliminate Medicare’s co-pays and deductibles for some preventive services.


On the other hand, large shares of seniors mistakenly believe the law includes provisions that cut some previously universal Medicare benefits and creates “death panels.” Half of seniors (50%) say the law will cut benefits that were previously provided to all people on Medicare, and more than a third (36%) incorrectly believe the law will “allow a government panel to make decisions about end-of-life care for people on Medicare.”

Despite the fact that Medicare’s actuaries predict the health reform law will extend the life of the Medicare Part A Trust Fund by 12 years (from 2017 to 2029), only 14 percent of seniors know this and nearly half (45%) of seniors think the health reform law will weaken the financial condition of the fund.


Just what effective steps are being taken by the Administration, health care professionals and all those working with the elderly, to put these false impressions right? Seniors should not be unnecessarily frightened in this way.

And were the GOP leadership behaving as a responsible “government-in-waiting” or even just with the sense of honour which ought to be characteristic of legislators, they would be out there too putting the minds of the elderly and frail at rest. It is despicable that they are not doing so.
 

Anybody *I* would like to see elected President would face the united opposition of both major parties' leadership, and so have no chance

# posted by Brett : 6:07 AM

Brett, he'd also face the united opposition of most of the voters. Don't forget that little problem.
 

So far we have the following "reasons for optimism" offered:

1. Gingrich. Sorry, but I don't think anybody who can so obviously shown to be a hypocrite, without morals, ethically challenged, and goofy besides, has a chance. Not to mention that the last time he was in charge of anything, he was run out of town on a rail.

2. Ryan. Empty-headed ideologue, (perhaps well-meaning) clearly out of his depth.

3 Pawlenty. Seriously? Tiny Tim? (I call him that for the stature of his intellect and wisdom.) Sure, nominate a guy who, while he's been in charge of Minnesota, has committed unconstitutional acts, failed to maintain the state's infrastructure, and couldn't even get elected in his home state without help from a third party to siphon off voters from pathetic challengers (no, the DFL is NOT blameless here). Not to mention that he's not a "deficit hawk" but rather a "deficit weasel".

4. Barbour and DeMint are both tainted with the institutional racism of the southern GOP. Not to mention they appear to be carved out of some soft southern wood from the neck up.

5. Jindal. When this country needs an exorcist, maybe. Meanwhile, it looks like he's doing to Louisiana what Pawlenty has done for Minnesota -- run it even further into the ground.

6. Ron Paul. Sure, at this point in time, when the corporations are running rampant, when a lack of regulations is producing instability, when the rich are rapidly gathering the ownership of all things into their greedy little hands, let's eviscerate government. Not to mention that he couldn't get elected to dog-catcher anywhere but in the reddest of red districts.

Finally, anybody who mentions Sarah Palin as a leader has forfeited any right to be taken as anything but a joke.
 

Among the many ways Klinghoffer mitigated the faults of conservatism, his claim that many of its characteristics are "recent" is the most disingenuous. Modern American conservatism grew out of segregation and racism, and "baiting Mexicans and blacks" has been the strategy for over 40 years (maybe longer, depending on how you categorize parties and issues before that).

Just to add a point in response to Prof. Levinson's post, eliminating the filibuster would be but a small step in the right direction. If we were to aim higher, as we should, the call should be to change the Senate rules to require that measures pass only when Senators representing a majority of the people assent. It's the only solution short of an amendment which would actually address the problem.

Calling for the elimination of the filibuster alone runs the same risk as the inadequate stimulus package, namely that the goal was too modest and the opportunity for effective policy won't arise again. If abolishing the filibuster is seen as not solving the problem -- and it won't -- then the reaction against those who want real reform may make such reform less attainable.
 

And there’s a charming story of Washington being asked in France ”why did you put milk in your [democratic] coffee? to which the great man answered: ”To cool it!”

George Washington went to France?!
 

Steve M:-
It could have been that he was asked by a Frenchman. I grew up not far from Washington Old Hall and more than 50 years ago I quite often went there.

One heard many Washington stories and I am sure not all of them were necessarily true.

The one I remember best was of an American visitor pointing out that Washington had fought the British.

The guide [female, middle aged, tweed skirt, twinset and pearls] was having none of it and replied:

"My good sir, George Washington was an Englishman, with an army of Englishmen fighting a German and his lackeys!"
 

Let me point out one (not to say the only one) error in Mr. Packer’s article. He claims that Article I, section 5 gives each house the authority to determine the rules of its proceedings “at the beginning of the new Congress.” In fact, the Constitution says nothing about making rules at the beginning of the Congress. It says that each house may determine its rules, but it doesn’t say when the rules are to be determined or how long they stay in effect.

In the House, rules can be adopted or changed at any time (by majority vote). The rules expire, however, at the end of the Congress because the House is not a continuing body. The rules of the Senate, however, do not expire because the Senate is a continuing body.

The Udall theory of changing the rules at the beginning of the Congress is based on the idea that the Senate is not in fact a continuing body so that its prior rules expire at the end of each Congress. But asking whether the Senate is “really” a continuing body is not the kind of question that can be answered by logic or conventional legal reasoning. (It is a bit like asking whether what the Queen in Parliament enacts is “really” the law in England.) Except for history and practice, one can no more “prove” that the Senate is continuing than that the House is not.
 

mls:-

If you are interested in the “continuing body” issue, Aaron-Andrew P. Bruhl has a paper on this on SSRN here.

Let me ask a question: given that the Constitution expressly provides that each house may make its rules of procedure, to what extent would the US Courts be willing to interfere with whatever was done?

In our system, because Parliament is a sovereign body, I think the Courts would want to steer well clear of getting involved, but I wonder if the US Courts would be prepared to be any more interventionist.

More importantly, would all the senators in the majority be willing to give up the perks and privileges which also accrue to them under the present rules? I am not sure they would.

So isn't the only practical hope some kind of deal for a modernisation committee?
 

It strikes me as virtually unthinkable that the courts would ever tell the Senate, "Sorry, we find that you're a continuing body, and thus your rule change is ineffective." It's a continuing body only by tradition, not by any provision of law, and the internal proceedings are pretty much immunized from judicial examination.
 

Judicial intervention is basically unthinkable, UNLESS the public at large because so cmopletely disgusted with the Senate--and, unfortunately, there seems to be no present indication that such outrage is on the rise--that it would accept such an extraordinary assertion of judicial power. But stranger things have happened in our history (see Bush v. Gore).
 

Sandy:

Apart from giving your followers a chance to engage in their usual thoughtful and well mannered discussion of conservatism, did you have a reason to ask about potential conservative leadership for the new Congress to be elected in 2010 and the White House in 2012?
 

Mourad- thanks, I am familiar with the article. Aaron is a smart guy, but, IMHO, misguided on this one.

With regard to judicial review, I agree that there is virtually zero chance that the courts would get involved in the question of whether the Senate is a continuing body for these purposes (although, FWIW, the Supreme Court has stated in at least one case that the Senate is a continuing body).

There are really two questions here (1) is the Senate legally compelled either to adhere to the current rule that requires a supermajority vote to change the standing rules of the Senate or to permit the rules to be changed by a simple majority and (2) assuming that the Senate is not legally compelled to take either step, what should it do as a matter of institutional and public policy?
With respect to these questions, it is the Senate itself, rather than any outside body, which is the final decisionmaker.
 

mls:- I agree, and thanks to other commentators too.

If the courts will not interfere, then I think the Senate is master of its own rules and can abrogate the existing rules, amend the existing rules, introduce new ones as it sees fit.

I do not think it is bound to observe the existing rules to do so. It could, after a reasonable debate vote an up and down motion to (1) abrogate the existing rules; (2) say that until adoption of new rules the debates were to be controlled by the presiding officer of the Senate using generally accepted parliamentary procedure; (3) commit the drafting of new rules to a committee for subsequent debate and approval.

But the leadership had better be sure of a rock-solid majority before it starts because the presiding officer would have to be prepared to rule opponents out of order if they refused to limit debate, require them to resume their seats, and if necessary have them removed from the chamber. That could make for some interesting television.

It’s a sort of nuclear option. So I still think it ought to be explored across party lines first.
 

Mark Field wrote:-

Modern American conservatism grew out of segregation and racism, and "baiting Mexicans and blacks" has been the strategy for over 40 years (maybe longer, depending on how you categorize parties and issues before that).

Mark: Racism was still quite widespread in the UK in the 50’s and 60’s and fear of immigrants was exploited by conservatives in electoral campaigns - see this BBC Report on Enoch Powell and Peter Griffiths: Powell’s ‘rivers of blood’ legacy.

That kind of racism has now wholly gone from British Conservatism and from mainstream politics.

I am not saying that racism itself has entirely gone – of course it hasn’t. There is still a small party on the fascist right – but it has no MP’s and gets every little support at any level.

I appreciate that in US law, the right of freedom of speech permits what we do not. We draw the line differently about the point where that right is abused rather than invoked. Incitement to racial or religious hatred crosses the line.

I have found some of the indisputably racist speech by US conservatives and the irresponsible speaking and writing on the immigration issue quite horrifying.

I was therefore pleased to read William Finnegan’s piece in the New Yorker: Borderlines. It makes a refreshing change to some of the dreadful stuff one finds elsewhere.
 

I'd be curious on your take, Mourad. I have a friend who's British but an immigrant of Tamil ancestry. She says there's quite a bit of racism among the British population (citing incidents where she personally was spat upon, called "Paki" and told to leave, etc.).

Would you agree that this is the case?
 

I'm confusing as to why the continuing Senate issue (raised when Clinton was impeached and trial in the Senate was called into question-- the fact he was impeached before the election did not void it since the Senate was a continuing body). I find the dispute interesting and likely to be a political (non-Court) question, but Congress can of course concern itself with constitutional principle while acting on its own as much as an executive official.

But, let's say it's a continuing body. Why would that matter? The rule still can be changed under that idea, but for some reason a supermajority has to be used to do so. That in itself is a rule. It's not compelled by the Constitution. What's the logic there?

As to racism in Great Britain, that has interesting connections to the current debate over birthright citizenship. The Supreme Court has cited English practice of recognizing birthright citizenship, but complications must have arose when this resulted in protection of groups not traditionally considered "English."
 

Also, I have looked at the Congressional Record in the past, and the Senate does set up various new rules at the beginning of each session. Presumably, this is done by agreement, but again, what constitutional principle (I assume there is one) requires change only to come by the current supermajority in place now? Does this apply to every petty rule or is the filibuster special?
 

Joe- I think the reason that the continuing body issue is being raised to support a change in the Senate rules is that this is an argument that has been made in the Senate before, albeit unsuccessfully. Therefore, people supporting Udall’s position can claim that this is a longstanding debate in the Senate and that they have simply decided that they agree with the minority position. It also gives them a reason to defer the issue until the next Congress, by which time it will most likely have been forgotten.

Logically, there is very little connection between the continuing body issue and whether the Senate rules can be changed by a simple majority. One can accept that the Senate is a continuing body and still believe that the rules can be changed by a simple majority. Conversely, one could accept that the Senate is not a continuing body and still believe that there is no requirement for the Senate to change or re-adopt its rules at the beginning of the new Congress. After all, if such a requirement existed, the Senate would have been operating under invalid rules for virtually all of its history.

A decision tree for Senators considering this issue would begin with the following question: do I believe that the supermajority requirements of the Senate, including the filibuster and the supermajority requirement to change the rules, have benefits, such as preventing hasty action and promoting debate and compromise, which outweigh the costs?

If the answer to this question is yes, then the Senator must ask whether the Constitution nonetheless compels him to vote against the supermajority requirements. IMHO, the answer to that question is no.

If the answer to the first question is no, then the Senator must ask how a change to the supermajority requirements by a simple majority vote would impact the Senate as an institution. What are the costs of ignoring a longstanding Senate rule and many Senate precedents and traditions? How would changing the Senate to a simple majoritarian institution impact its functioning? The institutional patriotism felt by its members? The stability of the Senate in particular and legislative institutions/precedents in general?

These institutional questions are not exactly legal/constitutional questions, but they are not pure policy questions either. They are most analogous to a question of constitutional design. That is to say, the Senator is considering whether he or she should support a change in the Senate’s “constitution” or its “ultimate rule of recognition.” This is not a decision that should be made lightly, and a Senator should understand all of the potential ramifications.

If, after due consideration, the Senator still believes that the Senate rules should be changed, then he or she should ask whether there is some “legal” or “constitutional” requirement that the rules only be changed in accordance with the existing supermajority provisions. Given that the Senate is the final judge of the question, it may seem a foregone conclusion that the Senator will reach the same result as he or she did on the institutional question. Nonetheless, it is analytically a different question. FWIW, I think that the Senator is probably not constrained beyond the institutional question above.
 

This comment has been removed by the author.
 

Mark and Joe:-

Sad to say, Mark, the account of your Tamil lady friend is undoubtedly true. ”Paki” is a word of abuse applied by skinheads and the like, especially drunken ones, to people who look as if they come from the Indian sub-continent.

Joe, you really don’t want to get too far into British citizenship issues. When I was born in 1944 I had British Nationality and Citizenship of the UK and Colonies. The two concepts – nationality and citizenship were separate.

Anyone who was a subject of the Queen (i.e born in Canada, Australia, the Indian Sub-continent, half of Africa, etc) also had British Nationality and with it the right to come and live, work and vote in the UK.

That was fine until, say, the mid-50’s by which time large numbers of immigrants were arriving – largely to do the jobs we did not want to do. There was much resentment especially in poor white working class areas. – hence the situation described in the BBC piece linked to earlier. Successive governments tinkered with the nationality acts and one of the exercises was a blatantly racial one because it discriminated against those from the “new” Commonwealth as opposed to the “old” Commonwealth (i.e. Canada, Australia and New Zealand). That was challenged on human rights grounds and the law had to be changed.

There was a further problem when hundreds of thousands of Asians were expelled by Idi Ami from Uganda and they came here on their British passports (and incidentally proved of great benefit to the nation – they arrived penniless, worked hard and did very well). There has been a lot of settlement lately by refugees with “poor white” resentment about that.

Remember that there is now free movement within the EEA – so an Italian or a Croatian or a Pole has the right to come with his family and work here and vice versa.

So far as primary immigration from non EEA states is concerned (whether the USA or India) there is now a points system largely based on skills needed for our economy. That gives a route to citizenship after 5 years’ lawful residence. Husbands and wives etc are admitted as dependents but they must not become a charge on public funds during the first 3 years of residence.

Once, anyone born in the UK or a Colony was British by birth. There was a 10 shilling fine payable in Gibraltar if one allowed a Spanish mother to be delivered in Gibraltar (because her child would be British).

Now, a child born anywhere whose father or mother is a British citizen has British citizenship. A child born in the UK will be British if the alternative is that the child would be stateless. I think there is an international convention about that.

If someone comes as a refugee, citizenship for that person and any dependents will ordinarily follow after 5 years. Ditto for migrants who come on work permits.
 

Thanks for the info Mourad.

mls' discussion is interesting, but sounds overall a bit academic. As I noted, it seems standard practice to change rules at the beginning of Senate sessions by agreement.

So, that would be a reasonable time to address a major rule change. I don't find that too remarkable really, even if it is not technically required.

mls' discussion suggests that the beginning of the term is cited as being important for more weighty reasons. But, be that as it may, it ultimately isn't too important if we deem it a logical and typical time to address rule changes as compared to in the middle of a session.

Change comes in various ways and sometimes in our system of largely common law type development change comes in a burst. The old way is found wrong and replaced. After all, the underlining assumptions behind the filibuster are being arguably violated by its overuse. So, a new path is reasonable.

And, the beginning of the session is a logical time for it. I find much of the rest academic, but realize others might find more to it.
 

Sad to say, Mark, the account of your Tamil lady friend is undoubtedly true. ”Paki” is a word of abuse applied by skinheads and the like, especially drunken ones, to people who look as if they come from the Indian sub-continent.

I never doubted her word. I was, though, reluctant to judge all of British society by the report of one person no matter how trustworthy. Such incidents were common in the US when I was younger, but seem to have diminished quite a bit in, say, the last 20 years.

It makes for an interesting contrast. British political discourse seems, at least among the 3 major parties, much freer of racism than here in the US (at least less prominent than one can find among Republicans), yet the actual experience of individuals of color may be more secure.
 

Mark:-

It is undoubted that the UK political position has vastly changed over the last 30 years. This is particularly true of the Conservative Party. John Betjeman neatly skewered the mind-set of the typical female conservative voter of the 1940's in his poem In Westminster Abbey:

”Keep our Empire undismembered
Guide our Forces by Thy Hand,
Gallant blacks from far Jamaica,
Honduras and Togoland;
Protect them Lord in all their fights,
And, even more, protect the whites.

Think of what our Nation stands for,
Books from Boots' and country lanes,
Free speech, free passes, class distinction,
Democracy and proper drains”."

For conservatives, the distinction was not so much racial, as class-based. The Indian Princes were received at Court, colonial troops were “gallant”, but their officers were white. It was only as black and coloured people advanced in the professions and business that they became socially acceptable.

For labour supporters, the official line was always one of non-discrimination, but the problem was that active anti-immigration racism was and is very foud much among a part of Labour’s core vote - the poor white working class who saw (and some still see) immigrants as competing for resources, jobs, housing, etc.

As for security, rightly or wrongly, I think of the UK much less violent than the USA. My impression is that in part this is a consequence of our gun control laws and largely unarmed police: an obstetrician in a Detroit hospital told me that the most common complication of pregnancy was gunshot wounds and I understand that that the life expectancy of a black adult male in Harlem is below that of Bangladesh.

We do, of course, have crime and some of it is racially aggravated. You may care to look at the Metropolitan Police Crime Figures.

In my own Borough (Enfield – population 285,000), which is not atypical, for the 12 months to June 2010 there were 24,254 reported crimes of which 3 were homicides and 4,721 involved violence against a person. 151 were classified as religious or racial hate crimes and 15 as homophobic crimes. I do not know how London matches up with an equivalent US city.
 

The Packer piece is well-written but would I think be stronger if it gave more historical background. To say the problem began in 1978 when more Republicans were elected is a little bit coy. As Sandy has argued, the problems inhere in the institution, and would not be appreciably different if (say) more Democrats were elected or the institution were suddenly to be less polarized.
 

My antennas went up with mls' 11:57 am critique of Packer's article, which I did not read until recently.

This is what mls was critical of:

"Let me point out one (not to say the only one) error in Mr. Packer’s article. He claims that Article I, section 5 gives each house the authority to determine the rules of its proceedings 'at the beginning of the new Congress.' In fact, the Constitution says nothing about making rules at the beginning of the Congress. It says that each house may determine its rules, but it doesn’t say when the rules are to be determined or how long they stay in effect."

This is what Packer included in his article in a portion discussing Sen. Tom Udall's views:

"In his first year in office, Udall decided to do something audacious: he would try to change the Senate’s rules. Customarily, the rules continue session after session, and a provision in Rule XXII requires sixty-seven votes to amend them, making it extremely difficult. ('Rule XXII is a Catch-22,' Ted Kennedy used to joke.) Udall embraced a different idea—the 'constitutional option.' Article I, Section 5 of the Constitution states that 'each House may determine the Rules of its Proceedings' at the beginning of the new Congress. So, in theory, a senator could take the floor next January and propose debating its rules from scratch, including the filibuster. New rules could be passed with a simple majority. There’s even a precedent for this: moves to revisit the rules by invoking the constitutional option have been made three times, most recently in 1975. Udall has spent much of the past year trying to build support for the idea."

A fair reading of this portion of Packer's article is not the take that mls took. Packer was discussing Sen. Udall's approach.

But of greater concern is mls' attempt at discrediting Packer's article with his parenthetical "(not to say the only [error]) without setting forth any "errors" beyond the one mls identified. As I read the article, I kept in mind mls' not-so-subtle hint of other errors. But the article was quite long. Perhaps mls in fairness might identify other "errors" of substance in Packer's article, which is replete with commentary of elected officials and others he interviewed on the doings of the Senate. In my view Packer was NOT taking a position on Sen. Udall's considered approach. mls uses a rather mild McCarthyian technique to attempt to discredit Packer. Too cute, mls, too cute.
 

Shag- reading the full context of what Packer wrote about changing the rules actually makes it worse. He not only inaccurately suggests that the Rulemaking Clause specifically authorizes rulemaking “at the beginning of a new Congress,” but he misleads his readers into thinking that this is the basis of Udall’s position. Meanwhile, he fails to mention what Udall’s position is actually based on, namely the theory that the Senate is not a continuing body. Finally, he says that Udall’s position is supported by “precedent,” which is true only in the sense that judicial dissents constitute precedent.

I take it, however, that you don’t have any substantive disagreement with what I am saying. By your standards of name-calling, “mild McCarthyian” is practically a compliment.
 

mls,
Packer obviously interviewed a lot of elected officials, etc, for his long article. I think he makes the point well that the functioning of the Senate is a serious problem. Packer was not submitting a brief of a legal nature. I do have substantive disagreement with your efforts to attribute unidentified errors to Packer. The error you "exposed" with your initial comment in context was Sen. Udall's view, not necessarily Packer's own personal view. If you do not think the Senate is a mess, I disagree with you, more than mildly. Packer reported the thoughts of many directly involved with the Senate, on both sides of the aisle. Do you have information that Packer misreported? Regarding my "mild McCarthyian" reference, I thought it would separate you from a Roy Cohn type; was I wrong? Maybe you were a master debater, but your parenthetical reference to more errors by Packer is a pathetic effort to malign a good piece of journalism.
 

http://balkin.blogspot.com/2010/08/george-packer-on-senate.html
 

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