Balkinization  

Monday, December 21, 2009

Why not hang for a sheep?

Sandy Levinson

Jack endorses Paul Krugman's altogether correct call for a national movement to change the operating rules of the Senate to limit, if not outright eliminate, the filibuster. I, of course, concur, though, ironically, perhaps the most defensible occasion for a filibuster is with regard to lifetime judicial appointments and the potential packing of the judiciary with people committed to the President's political/constitutional agenda. Perhaps I shouldn't admit that in a situation where mad-dog Republicans are likely to froth at Obama's next nomination, whoever it might be, especially in the unlikely event that the next vacancy will be created by the necessity to replace one of the current conservative Republican majority. But, I agree, better no filibuster at all than the system we have now.

That being said, I think the odds of modifying the Senate rules are close to 0%, unless the Democrats are really willing to confront the oldest continuing myth of the Senate, which is that it is a continuing body whose rules can be amended only in accordance with pre-existing rules, which, as my previous post indicated, requires a 2/3 vote. It is literally inconceivable that Republicans would acquiesce in such a move while the Democrats hold power or, frankly, that Democrats would acquiesce if the situation were reversed. Now perhaps Joe Biden will rule that rules can be changed by a straight majority vote. I still would be extremely doubtful if 50 Democrats would vote for that, simply because they can envision being back in the minority when they will want to torpedo Republican legislation. (After all, the Senate can't even cure the absolutely pernicious custom of "holds," which allow single senatorial tyrants to tie up nominations, presumably because each senator envisions the possibility that he/she will want to exercise that bit of petty tyranny him/herself.)

So, if one is going to embark on fundamental change, then why not try to steal the sheep instead of settling for the lamb? You'll hang in either case if caught. So why should Jack be so insistent on confining his critique to the filibuster, and calling only for its elimination? To be sure, even more fundamental change is unlikely to occur, but confronting the deeper structural problems inflicted on us in 1787 because of the felt necessity to submit to the extortionate demands of Delaware and other small states would generate a more cogent conversation than one focusing only on the filibuster, as important as that might be.

Consider, for example, today's story spelling out the location-specific benefits buried in the Senate bill. “'This process is not legislation,' said Senator Tom Coburn, Republican of Oklahoma, referring to a variety of special-interest provisions. 'This process is corruption. It’s a shame the only way we can come to a consensus in this country is to buy votes.'” Is he really wrong? Isn't this exemplification of the kind of "factionalism" that Madison was so worried about in Federalist 10 (and which he absolutely wrongly believed would be cured by elite representative government)?

And look at the particular skews of the particular provisions, which seem overwhelmingly to benefit small states, including Nebraska and the whole panoply of upper-Midwest states whose entire population doesn't come close to equalling any of half-dozen largest American states. Obama adviser David Axelrod "said the provisions benefiting specific states, like Nebraska, and favored constituencies were a natural part of the legislative process.
'Every senator uses whatever leverage they have to help their states,” Mr. Axelrod said on the CNN program “State of the Union.” “That’s the way it has been. That’s the way it will always be.'” He is right, of course, but not all senators are created equal. The beneficiaries tend to be small-state senators not because they are necessarily better bargainers, but as much, frankly, because they can be bought off so much more cheaply than a large-state senator, who has millions rather than simply a few hundred thousand constituents to worry about. According to the Times, "[a]nother item in the package would increase Medicare payments to hospitals and doctors in any state where at least 50 percent of the counties are “frontier counties,” defined as those having a population density less than six people per square mile. And which are the lucky states? The bill gives no clue. But the Congressional Budget Office has determined that Montana, North Dakota, South Dakota, Utah and Wyoming meet the criteria." How nice!

To be sure, Pennsylvania also seems to have received one of the "earmarks," no doubt to assuage Sen. Casey in his willingness to vote for a bill that leaves a little bit of daylight (though not much) for insurance that will cover abortions, and fighting Joe Lieberman was able to get something for a Connecticut hospital. But what's really interesting is that, at least according to the story, there are no particular payoffs to California, New York, Florida, Texas, or Illinois.

Perhaps getting rid of the filibuster would lessen such corruption, but it would merely transfer the bargaining power to the 50th instead of the 60th senator. And you could bet the ranch, if you had one, that small states would be left with lots of both lambs and sheep because of the "affirmative action" that is built into the system for the residents of such states (many of whom, no doubt, view themselves as ruggedly independent sorts who oppose "affirmative action" for other groups). The Brits ultimately were able to defang both their rotten-borough House of Commons and then the House of Lords, though it took many decades to do so. Getting rid of the filibuster in its present form is an essential first step in a similar American defanging. But it is only a first step. Sooner or later, the Constitution itself will have to be confronted.



Comments:

No Congress can impose its views on the next Congress. When the Senate first meets at the start of a newly elected Congress, the first step is to adopts Roberts Rules of Order and then to adopt the Rules of the previous Senate. At that moment, before the previous rules are adopted, any old rule can be changed by a simple majority vote (in theory, although it has never actually been tried). After the old rules are adopted, you are screwed for another two years.
 

So does the 2/3 requirement re rules changes apply only to "intra-session" changes? When the "nuclear option" was being discussed several years ago, it involved a rule change by majority vote that would have ostensibly taken place during the session, and not the adoption of a new rule at the beginning of one.
 

One quick thought:

I don't think Madison argued that elite representative government would cure factionalism. The tone of Federalist 10 is sort of fatalist on the point that factionalism cannot be cured. The point is that the effects of factionalism--and at that time they were particularly concerned with the tyranny of the majority, because what was being proposed was closer to true democracy than anything in centuries--had to be accounted for and controlled as best it could be. The best way Madison and his cohorts could think of to control the effects of human nature was to pit us, separately and as a part of our many factions, against one another. The Federalists and Antifederalists were so concerned with what would happen if the majority ran rampant, that it seems unlikely that they conceived of a time when the majority would basically lack the backbone to stand up for itself.

This is a relatively minor comment on a post that I generally agree with, however.
 

I agree that at some point in the future it's the constitution that will have to be confronted and that frightens me. For years the Birchers have been calling for a constitutional convention probably hoping that the outcome will be like the first one where the delegates were supposed to address the inadequacies of the Articles of Confederation and we wound up with the electoral college and equal representation in the upper house which is completely wrong.

I remember thinking when the GOP ran things and the nuclear option was broached that if they were so quick to eliminate the filibuster it must be a pretty good thing and should be kept. The problem with the filibuster is that the Democrats didn't have the balls to use it effectively when they were in opposition and they won't have the balls to use it after 2010 when they are once again in the minority thanks to their inability to govern and their complete betrayal of their base.
 

Madison may have been right about that elite representative government, but we'll never know.
 

As I understand the "nuclear option" it was a claim that the advice and consent clause could be interpreted as precluding a filibuster on appointments (as distinguished from legislation). This was to be a ruling from the VP on what the Rules were, and not a decision to change the Rules. An interpretation of the Rules only requires a simple majority to support.

When a new Congress starts up the entire history of previous Senates is erased. That first day rolls the clock back to March 4, 1789 the day the first Congress met when there were no previous Congresses and everything had to be invented fresh. Adopting Roberts Rules of Order simply gives you the ability to do business making and passing motions and it has no super-majority rule on anything. It is the next step (adopting the old Senate rules) that imposes the decisions of previous Congresses on the new Congress.

There is some other business that needs to be done, like swearing in the members. A lot of this stuff is mostly regarded as ceremonial. However, if enough Senators decide to do it, and (to achieve legitimacy) if they commit to the change before the election when nobody knows the party split, then nothing prevents them from changing the process and (under Robert's Rules) moving and adopting by simple majority some different set of rules than the ones that the previous Senate decided to use.

Under the Constitution, no Congress can bind the decisions of the next Congress in any matter within their power. Implicitly the 111th Congress cannot adopt any rule that rolls over and binds the 112th Congress after the next election. This means that Article I Section 5 "Each House may determine the Rules of its Proceedings" applies literally to a blank slate at the start of each Congress.
 

Perhaps getting rid of the filibuster would lessen such corruption, but it would merely transfer the bargaining power to the 50th instead of the 60th senator. And you could bet the ranch, if you had one, that small states would be left with lots of both lambs and sheep because of the "affirmative action" that is built into the system for the residents of such states (many of whom, no doubt, view themselves as ruggedly independent sorts who oppose "affirmative action" for other groups).

Ben Nelson was paid off precisely because 2/3 of his "ruggedly independent sort" constituents oppose the Dem government health insurance bill. A heavy majority of Nebraskans (like us neighboring Coloradans) neither want the bill or the pork.
 

Apparently the rules allow the Senate Majority Leader to require a traditional filibuster. Why not wait them out? It's just as messy as trying to eliminate the filibuster itself.
 

"in theory, although it has never actually been tried"

A telling comment of reality vs. possibility, particularly in an institution tied to tradition.

The Democratic Party in recent years provided a weak form of what Madison wanted, though of course through a modern party lens. This was underlined by "Blue Dog" Democrats and so forth not voting as a bloc with the rest to try to filibuster as regular practice.

Republicans, and this is said neutrally, vote as a bloc now. It was not always thus. Segregationists are sometimes pointed to underline the problems with filibusters. But, even in those days, only a small amount of legislation had to go through the gauntlet. Now, with easier means to do so, it has greatly expanded.

The filibuster might have limited value if used sparingly. It has run off its rails. Krugman is right as to the broader message that people should take from this experience, but focus on any one senator points to how this will be missed. Is Feingold et. al. going to join Sen. Harkin's anti-filibuster proposal?

If not, he's part of the problem.
 

BTW, there are always going to be some "th" vote out there, often more than one, who will have to be appeased somehow. Let's say to get something out of committee on a close vote or whatever.

The level of power here matters -- if the final vote is 52-48, two might have a lot of power. But, at least a majority vote is in place. This is the difference with the filibuster, where a majority of 59 can be blocked by a minority, even those who caucus with most or all of the majority.
 

Howard's right re the nuclear option--the GOP wanted to preserve the filibuster for legislation but toss it out for nominees. He's also correct re changing the rules--When Nixon was VP, he issued an advisory opinion that concluded that the Constitution's provision that each House may determine the rules of its proceedings grants "the majority of the new existing membership of the Senate ... the power to determine the rules under which the Senate will proceed."(103 CONG. REC. 178 (1957)).

Nixon explained that a new Senate had three options available "[a]t the beginning of a session": (i) proceed under the rules of the "previous Congress and thereby indicate [its] acquiescence that those rules continue in effect," which was the practice the Senate had followed for nearly 170 years; (ii) vote down a motion to adopt new rules and thereby "indicate approval of the previous rules"; or (iii) "vote affirmatively to proceed with the adoption of new rules." (Gold & Gupta 2004, quoting Nixon's opinion).

As a practical matter, if the majority were to change the rules at the beginning of the session and the minority were to object, the majority would simply need to table the objection (51 votes required), and that would be it. The minority has no avenue of appeal.
 

Let's "hope" for the "change."

But from a culinary point of view, I'd rather be hung for a lamb than a sheep. (I don't want to even think about the Coloradan preference.) Either way, fleecing is involved.
 

Howard Gilbert seems to be uniquely informed about the workings of the Senate. Perhaps he could favor us with a source for the proposition that a "new Senate" first adopts Roberts Rules and then adopts the rules of the "previous Senate." This is rather a surprise to me, as I was under the impression that the Senate is a continuing body and that there are no "new" or "previous" Senates.
 

mis:

Consider The First Day of a New Congress:
A Guide to Proceedings on the House Floor
(there is one for the Senate, but it isn't very good). Both Houses of Congress work the same way.

"The House is not a continuing body. It ends at the conclusion of each two-year Congress and must reconstitute itself at the beginning of the next Congress."

"The next order of business is the adoption of the rules of the House. Although the rules of one Congress are not binding on the next, the House usually approves its rules by adopting en bloc the rules of the previous Congress with amendments."

Read on in the PDF to get more detail. [My original source was an article I read twenty years ago and I cannot give a Web reference to it, but this will do to prove the general point.]
 

mls got a limited response from Howard Gilbert to this:

"This is rather a surprise to me, as I was under the impression that the Senate is a continuing body and that there are no 'new' or 'previous' Senates."

I "googled" "What is a political continuing body?" and a lengthy link to a Senate document came up that referred to the Senate as a "continuing body." This relates to the staggered terms of Senators. But the legal implications of the Senate as a "continuing body" are not clear in the context of this post. Perhaps the future may provide SCOTUS the opportunity to one-up Bush v. Gore with McConnell v. Reid if the "new" Senate votes a majority rules rule.
 

The CRS report for the Senate's opening day does not say it is "the same"

Article I, Section 2 of the Constitution provides for a system of staggered six-year terms for Senators, one-third of their terms expiring at the conclusion of each Congress. As a consequence, the Senate is a continuing body and does not have to reorganize itself each new Congress, as does the House of Representatives, by adopting new rules and electing new leaders. Any changes in Senate leadership take place in the party
conferences prior to the opening day, and there are no floor votes to ratify these changes.


A CRS report also discussed the "nuclear option." It cites the Nixon finding noted above. Nixon said it was his own opinion and not a ruling from the chair. The proposal to change the rules was tabled. The "continuing rules" practice was upheld.

Here is the beginning of the 111th session of the Senate. It began with a prayer and certificate of elections. These are acts of the Senate. No agreement of rules occurred beforehand. The first resolution related to a quorum being present. Then, the inauguration, time to meet, and sundry mundane matters (which cited standing rules that were by the resolution at times altered in some fashion).

As the nuclear option report notes, the attempt to use this process to change the filibuster rule failed thus far. Either way, I don't see where they adopted a new set of rules as a whole.

Here is the same for the House. "Precedent" was cited for the opening proceedings (involving certification of elections and so forth). HR 5 dealt with the rules.

Unlike the Senate, the House dealt with the rules as a whole:

That the Rules of the House of
Representatives of the One Hundred Tenth Congress, including applicable provisions of law or concurrent resolution that constituted rules of the House at the end of the One Hundred Tenth Congress, are adopted as the Rules of the House of Representatives of the One Hundred Eleventh Congress


Since the House is not, contra the Senate, a "continuing" body, this would be necessary.
 

Howard- hopefully, Shag and Joe's posts have cleared up for you that the House and Senate are very different bodies. The Senate is a continuing body, the House is not. The House adopts new rules at the beginning of each Congress, the Senate does not.

If you are not convinced, I would be happy to provide you with further authority (the Supreme Court case of McGrain v. Daugherty, for example). But I would think that even the CRS reports that you cite make this pretty clear.

Just to avoid any misunderstanding, my point is that the Senate deems itself to be a continuing body. One can argue (as Aaron Bruhl has in a recent article) that the Senate is wrong in this regard. But no one disputes that the Senate considers itself and its rules to be continuing.
 

Just to be clear about my comment, I am not endorsing Howard's comment that the senate votes to adopt its previous rules (we have pretty good evidence that it doesn't from reading the congressional record), or that the Nixon opinion is recognized precedent, as it was merely advisory and was never adopted by the chair or the Senate.

That said, the senate is a parliamentary body, which means that an act of the majority vote of a quorum is an act of the body. (United States v. Ballin, 144 U.S. 1, 6 (1892)). Between that opinion, the constitutional language that states that the senate may determine its own rules, and a general unwillingness of the Courts to involve themselves in the internal affairs of coordinate branches, it is nearly impossible to imagine the Supreme Court taking an appeal from the decision of the Chair that was tabled by the majority of the Senate.

This is not to say that stare decisis is not reason enough in most senators' minds to keep them from amending the rules--I'm just pointing out that no external authority keeping the filibuster in place.
 

This subject appears to have been completely covered in “Entrenchment” of Senate Procedure and the
“Nuclear Option” for Change: Possible
Proceedings and Their Implications
There is a relatively long history, but it appears that my previously presented theory was actively advanced between 1953 and 1971 in various forms (first as a non-continuing like the House principle and then as an Article I Section 5 makes the rules amendable at the start of a Congress principle). At the time the Senate voted in each case to maintain the continuity of the previous rules and the advocates eventually gave up.

It should be noted that at no time did any proposal for change ever reach a simple majority, so this history does not answer conclusively the question of what would happen at the start of a Congress if a majority of Senators wanted to change but not a 2/3 majority.

In any event, whatever is going on here is not a Constitutional problem but rather a problem with the Senators themselves. It requires a change in the decision of the membership and not constitutional change.
 

"In any event, whatever is going on here is not a Constitutional problem but rather a problem with the Senators themselves."

Part of the argument made by those against the current filibuster policy was that it violated constitutional norms regarding the power a majority has. Also, the constitutional system (including common law practice, so to speak) encourages its continuance.

Sen. Byrd, for instance, rightly or wrongly, is rock sure that the filibuster is not just some "rule" but basic to what the Senate constitutionally means.

I take Nate's follow-up comments as granted, including that the ultimate matter will be internally decided upon. Constitutional rules regarding deciding questions of proceedings and political question concerns standing out there.
 

Sandy:

You should appreciate this. Section 3403 of the Senate bill creates a new bureaucracy called the Independent Medicare Advisory Board which is tasked with cutting the growth of Medicare spending. This is a strange provision.

This Board appears to have near dictatorial power over this issue.

The Bill heavily restricts the means to enact legislation to change or reverse a Board decision.

The Senate may only suspend or waive these restrictions by a 3/5ths vote.

The Bill changes the rules of Congress to forbid it from later enacting legislation which will change or reverse the paragraph of the Bill implementing these restrictions, a provision I would think is baldly unconstitutional.

On the other hand, it appears that the bill bars the board from changing anything that actually might appreciably slow the growth of medicare spending. The Board cannot "ration care" or cut reimbursement for the care, so unless they squeeze care cuts under the term "ration care," then I cannot see where the Board is supposed to come up with the $500 billion in Medicare savings to pay for the trillion dollar cost of this bill. It all appears to be a charade.
 

Bart brings up a very interesting point. I perused the section he cites, and came to the conclusion that it would take a very long time to figure out exactly what it means and what real world effect it is likely to have. It does, however, purport to “entrench” a portion of the current health care legislation against future modifications.

My first reaction is that this raises essentially the same issues as the entrenchment of the Senate rules, with the additional complication that the health care reform is being enacted by statute, rather than by rule. So the question can then be asked, what would happen if the House or Senate either (a) purports to change the statutory entrenchment by rule, rather than by legislation or (b) simply ignores the statutory entrenchment. I think that this is roughly analogous to the question of what would happen if the Senate purported to repeal (by majority vote) the two-thirds rule change requirement, or to achieve the same result by parliamentary ruling.

In any of these cases, I think it is almost certainly true that there would be no judicial review. It is more debatable whether the actions would be legally/constitutionally permissible, although it is my opinion that it would be permissible to change the rules by majority vote, notwithstanding the existence of a supermajority entrenchment rule.

Whether it would be wise to take such actions is another matter entirely. There are two serious considerations. The first, which is exemplified by the healthcare bill, concerns the ability of the Congress to commit itself creditably to a future course of action, which might be thought necessary in order to reach agreement on a current course of action.

The second, which I consider far more important, has to do with the fundamental legitimacy of our system. Although the Senate’s supermajority requirement is extra-constitutional, it is deeply embedded in the Senate’s understanding of itself as an institution. To say that this is so simply because the Senators accept it is not much of an answer. At the most fundamental level, our constitutional system operates because people share certain assumptions, many of which are not written down in the Constitution. Judicial review springs to mind.

If the Senate were to repeal its supermajority requirement by majority vote in order to achieve a particular legislative goal (especially one that was opposed by most of the population), those aggrieved by this action would understandably call its legitimacy into question. They might argue that if the Senate can simply stop “accepting” its own rules, however longstanding, perhaps others should similarly stop accepting rules that they find unpalatable, or which stand in the way of “majority rule” (which, as the healthcare example shows, is a flexible term).
 

mls states:

"At the most fundamental level, our constitutional system operates because people share certain assumptions, many of which are not written down in the Constitution. Judicial review springs to mind.

[How about 'originalism" in its various forms springing to mind as a rule of interpretation not written in the Constitution. Different people share different assumptions.]

"If the Senate were to repeal its supermajority requirement by majority vote in order to achieve a particular legislative goal (especially one that was opposed by most of the population), those aggrieved by this action would understandably call its legitimacy into question. They might argue that if the Senate can simply stop 'accepting' its own rules, however longstanding, perhaps others should similarly stop accepting rules that they find unpalatable, or which stand in the way of 'majority rule' (which, as the healthcare example shows, is a flexible term)."

[What if a goal is supported by most of the population? And does "most" mean a supermajority or just a simple majority? What should be the role of polls in this regard? And just what are the full legal implications of the Senate as a "continuing body" in the context of this post? Does this mean that once a supermajority requirement is set by the Senate it can only be eliminated by a similar vote? (Has the Senate turned into a fraternal order?) Would that be constitutional? In fact, might it be argued that the supermajority rule itself is unconstitutional for the Senate? Could the supermajority be set even higher than 60, say 75 or even 90%? Yes, the Senate may be a "continuing body" but only for certain purposes, not necessarily all.]
 

I should have "googled" a little longer. I just came up with Aaron-Andrew P. Bruhl's "Burying The 'Cntinuing Body' Theory of the Senate" available via SSRN at:

http://ssrn.com/abstract=1427456

It's 50 pages single-spaced so I'll probably get to it tomorrow at the earliest. The second paragraph of the abstract begins:

"The basic thesis of this Article is that the continuing body notion, though frequently invoked, cannot withstand scrutiny. I offer several arguments in support of that thesis."
 

Shag- my view is that the Senate’s supermajority entrenchment rule is extra-constitutional, but not unconstitutional. It binds the Senate not because of any external law or force, but simply because the Senate has, over a long period of time, chosen to be bound by it. It is, if you will, the equivalent of the Senate’s own constitution. If there should come a time when a majority of the Senate should find that the rule is intolerable, it could decide to dispense with it. My only point is that such an action would be accompanied by significant costs, and those costs would be higher the less popular support the Senate has behind the legislation it is seeking to advance. Thus, it is not surprising the Senate has been reluctant to consider even the use of reconciliation to advance the health care bill, much less the far more drastic steps advocated by Professors Balkin and Levinson.
 

mls:

"My only point is that such an action would be accompanied by significant costs, and those costs would be higher the less popular support the Senate has behind the legislation it is seeking to advance."

I understand. But no action might result in even greater costs if the great (but really not great) ideological divide continues. Much of my time in my semi-retirement is spent on research of the 1850s through the early 1860s, a time of great divide. My life began in 1930 here in the Boston area and over my lifetime there has been a lot of history, much of it in the form of wars, hot and cold. The 1960s were difficult because of the then great divide on civil rights. The concerns expressed by Jack Balkin and Sandy Levinson are shared by me. The great divide must be healed else America turns into just another empire in history. This doesn't mean that we should all move in lock-step but "us" against "them" will not serve us well in the long run. It is the right that is precipitating this divide just as was the case in the 1960s with civil rights. I'm a liberal and a democrat, but I don't walk in lock-step with liberals/democrats. Will Rogers made the point, with a touch of humor, about his democrats decades ago - we're incapable of walking in lock-step. But that is the tactic of the republican party - winning at all any - costs - but without conscience. Who wants to go back to the pre-civil rights days that took about 100 years from the Civil War to achieve basic rights? (Speadk up if you do.) Now we are talking health care reform and the Senate has this great divide. How much longer should it take to address health care reform? So let's belly up to the bar, with its costs, before the chasm gets wider and deeper.
 

"But that is the tactic of the republican party - winning at all any - costs - but without conscience."

And you're going to assert the facially absurd claim that this isn't also the tactic of the Democratic party? Or is your position that the Democratic party tries to win at all costs, but because Democratic positions are good, that's not without a conscience?
 

Brett, keep in mind that for every action there is an equal and opposite reaction. This applies beyond physics to politics and results in the ever widening chasm. Consider the failure of the Senate - both parties - to address the federal estate tax for 2010, at least a one year extension if breathing time were required, on a bipartisan basis. Now the talk is that the Senate will address this in 2010, aiming for retroactivity to 1/1/10 (that will raise constitutional issues). Tax law was a significant part of my law practice. Now estate planners will have a field day addressing all the what ifs. For the Senate not to have taken action on a timely basis demonstrates much of the problem with the supermajority rule. But only a few are impacted by the estate tax, unlike health care reform, so the estate tax got very little attention in comparison. So a pox on both sides of the divide. But, Will Rogers, as earlier noted, demonstrated that democrats do not walk in lock-step to the same extent as republicans. Just compare the congressional actions during the Bush/Cheney years on walking in lock-step. Some people just can't stand the fact that Obama is, well, different. E.J. Dionne in a recent column said that progressives should unite. Maybe so, but then consider Will Rogers' take. Perhaps a DNA gene unites republicans as a minority to thwart the majority. But, to repeat, some people just can't stand the fact that Obama is, well, different.

So, with all the serious issues to be addressed by the Senate and the House, a simple matter of extending the estate tax will exhaust valuable time in 2010. (The consequences of not addressing the estate tax, by the way, may result in serious income tax revenues with carryover tax bases impacting not only those with large estates but also moderate estates; while house prices have declined, many of us have low tax bases for our homes; the same goes for equities. Progresssives should provide the IRS with more funds to audit tax bases claimed on large sales and exchanges. That could reduce the deficit.)
 

I started to read Prof. Bruhl's article and note that footnote 62 makes reference to Jack Balkin's 11/22/09, 7:35 AM post, suggesting that the article is hot off the press.
 

Any comment on

http://rightcoast.typepad.com/rightcoast/2009/12/i-guess-our-rules-mean-nothing-tom-smith-.html

Prof. Smith says,
"Is the Senate really passing a law that says, among other things, that it cannot be amended, and in order to pass that law, is violating its own rules? So you break your own rules to make a rule that says it itself cannot be changed?"

That sure is what it looks like in the video he links to. If not, then it woudl be easy to get rid of the filibuster rule even if you only have 60 votes. Just embed it in a healthcare bill, and don't call it a "rule change". Then it only takes 60 votes, if you have a loyal presiding officer, at least.
 

Seriously-- I turned to this weblog to see if liberal law professors would defend the Senate's action here or not. Please, Balkinizers, do post on the incident, and whether the rule change that was snuck in is valid even though it didn't get a 2/3 vote. And, seriously, if you do think it's valid, why couldn't the filibuster rule be eliminated that way?
 

What is all the hurry with this Health Care thing? The one thing that this country was surely founded on was small incremental change. That is why we have check and balances and separation of powers. Everyone was all fired up to bail out the banks and now look how many people regret it. This "Tea Gathering" thing is not going away and people are only getting more angry at the waste of tax dollars that goes on in D.C. I for one am glad we the the filibuster. It slows things down so passions do not take over.

As far as Madison's idea in Federalist 10 not working I think that is a farce. How else would such a large population of diverse people from different regions all manage to hold this thing together for so long?
 

Prof. Bruhl's article details quite a bit about the Senate as a "continuing body" and what that phrase means. However, there seems to be no clear cut answer. It is pointed out that because the issue is "political," the courts might not address a Senate majoritarian decision to undo its supermajoritarian rule. So perhaps my concern with SCOTUS one-upping Bush v. Gore with a McConnell v. Reid may not come to pass.

Bruhl does point this out (at page 49):

"Despite what one often hears about the purpose of the Senate, the action that the framers intended the Senate to be supermajoritarian in order to retard a potentially overactive legislative power is fiction: the desired security against imprudent impulse would come from a lawmaking process that required the assent of multiple, independently selected and constituted majorities, not supermajorities. The framers were not partisans of minority vetoes in legislatures. And moving beyond the original design, while it is true that the Senate has long been deliberative and responsive to determined minorities, the '60-vote Senate" we know today is a recent innovation. So while some may resist my arguments on the ground that a page of history is worth a volume of logic, they should not be allowed to do so on the basis of faulty history."
 

This "Tea Gathering" thing is not going away

# posted by King of Ireland : 7:51 PM


It appears that the tea-baggers are poised to destroy the GOP. I see no downside to that.
 

Do the "tea-baggers" provide their own hot water to steep in? (I assume they recycle.)
 

Tea Gathering? I believe that is a job in India.

In a supra thread, Mark addresses the most interesting constitutional question raised by the utterly corrupt Senate Obamacare bill: Does legislation providing Nebraska with a greater subsidy for Medicaid than than all the other states for no discernible government purpose other than buying a senator's vote violate the EPC?

Generally, congressional votes are bought with some bit of pork which has some rational relationship to the legitimate government purpose apart from buying the vote and it is difficult to prove that the purpose was vote buying. This is the first instance of which I am aware of buying a vote by providing a state with a greater entitlement subsidy than any other state and there is no possible reason for this differential apart from vote buying.

How can vote buying be considered a legitimate government purpose?

How can vote buying be considered a legitimate non justiciable political issue?
 

Here's an inquiry from our sobering DUI specialist:

"How can vote buying be considered a legitimate government purpose?"

Gee, the military/industrial complex has thought for decades that this is okay. And Bush/Cheney's tax cuts resulted from vote buying with campaign contributions from the beneficiaries of such tax cuts.

It looks like our unpacked Backpacker is doling out lumps of coal to add to climate change.
 

Shag:

The distinction between the Nebraska Medicaid payoff and spreading defense contracts around the country is that the defense contracts are also rationally related to a legitimate government purpose - national defense. The problem with the Nebraska Medicaid payoff is that paying Nebraska more than other states is not rationally related to any other purpose apart from buying votes. Thus, the questions stand:

How can vote buying be considered a legitimate government purpose?

How can vote buying be considered a legitimate non justiciable political issue?

Your analogy to tax cuts is interesting. What if Reid excused Nebraska from paying income taxes as the price to buy Nelson's vote? Would that violate the EPC IYHO?
 

Our drone from Colorado responds:

"Your analogy to tax cuts is interesting."

Perhaps I should ask CBO to quantify the costs to the fisc of the Bush/Cheney tax cuts to compare to the costs of the full Nelson resulting in the "Nebraska Medicaid payoff." That's something to grapple with.

As for the propriety of vote buying, originalists/textualists should keep in mind the First Amendment provisions that provide support to the lobbyists who do seem to know how to buy votes.
 

Shag:

Get back to me when you can muster a serious comment.
 

I would like to second Professor Pildes' recommendation of the Wawro and Schickler book on the filibuster. It provides a good historical understanding of how the filibuster functioned in the pre- and post-cloture periods. It also explains why the Senate has never been inclined to replace its supermajority rules and traditions with simple majoritarianism. And Professors Levinson and Balkin may want to consider particularly some of the points made on pages 276-81 regarding the question of whether simple majority rule would be normatively preferable.
 

mls:

Can I assume from your comment that you read Wawro and Schickler's book on the filibuster? If so, do they address the impact, if any, of Senate campaign financing as it has developed in the past 3 or 4 decades on the filibuster? Or the impact of lobbyists? I can understand grass roots minorities urging filibuster on certain issues but what about "minorities" that are heavily financed that in turn heavily finance senatorial incumbents and their challengers? Do such "minorities" foster filibuster?

Also, do these authors address the Senate southern coalition filibuster efforts to thwart civil rights legislation post WW II? If so, were such filibusters to be praised for their efforts to thwart majoritarian rule in the Senate?
 

Shag- yes, I have read the book. The authors only discuss campaign financing, so far as I recall, as one of the demands on the time of a Senator in the modern era. The fact that there are so many more demands on the time of the Senate and individual Senators is key, in their view, to explain why the filibuster can no longer be fought as a war of attrition. It is simply too costly for the majority coalition to spend the kind of time that it would take to break a filibuster (assuming it lacks the votes to invoke cloture).

I think you are suggesting the possibility that a filibuster would be grounded only in the interests of a small minority of campaign contributors, without any corresponding popular support. I don’t recall any specific discussion of such a scenario. They do have an extensive discussion of tariff-related filibusters (both in favor of and opposed to the raising of tariffs). These are certainly examples of clashing economic interests, but there were also significant voting blocs behind them. One of the points that the authors make is that decisions regarding whether to conduct a filibuster, and how long to engage in it, were driven in part by electoral considerations, ie, how the voting public was likely to react to continued obstruction.

They also have an extensive discussion of southern obstructionism before and after the Civil War—although they do not focus much on the filibusters of the 1960s. I think it is fair to say that the authors do not consider this to be a “good” thing. As social scientists, however, they don’t leap to the conclusion that because the filibuster has been used to accomplish (or try to accomplish) undesirable ends that it is inherently an undesirable procedure. They also point out that southern obstructionists were ultimately successful in stopping civil rights legislation only when there was either no majority, or an insufficiently committed majority, in favor of the legislation (the Federal Elections Act of the late 19th century, for example).
 

mls:

I appreciate your response, in particular the first paragraph:

"The authors only discuss campaign financing, so far as I recall, as one of the demands on the time of a Senator in the modern era. The fact that there are so many more demands on the time of the Senate and individual Senators is key, in their view, to explain why the filibuster can no longer be fought as a war of attrition. It is simply too costly for the majority coalition to spend the kind of time that it would take to break a filibuster (assuming it lacks the votes to invoke cloture)."

All Senators, whether in the majority or the minority, share the same limitations on time. But perhaps the minority may be better funded with campaign contributions such that they are in a better position to spend the time to maintain a filibuster, especially if the contributions made to the minority result perhaps from the expectation of fostering a filibuster. Money talks, despite McCain/Feingold.
 

So what about a rule that kept the 60% vote, but based it on each state's population? This would eliminate the most undemocratic aspect of the supermajority requirement. It would also incorporate the existing logic of allowing House members from DC and the territories to vote on procedural matters without affecting the outcome of legislation. Constitutional or no (and if no, justiciable or no), what say ye?
 

Can a political scientist out there graph an application of r.friedman's proposal, including various combinations of highly populated states that could achieve 60%? What might result with Senate campaign financing aimed at achieving the 60% goal and how might that impact Senate campaigns in the states with low populations? Doesn't it make more sense to continue filibuster but with time limits and frequent quorum calls with the cameras on? With Al Franken on board it might even be entertaining watching filibuster-sausage being made.

HAPPY NEW YEAR.
 

Shag --
I did a calculation a couple of years ago. The "big" states (CA, NY, FL, TX at least) were split between the parties. The "medium large" states (PA, MI, IL, WA etc.) were predominantly Democratic. The "smaller" states were split.
 

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