Reconciliation, the filibuster, and the rules of the Senate

The use of reconciliation to pass health insurance reform would not be cheating, as the threatened “nuclear option” was. But it’s time to get rid of the filibuster altogether, and that could be done by a simple majority at the beginning of the next Congress.

If (probably when) Democrats use the budget reconciliation process to pass a chunk of health insurance reform, Republicans are sure to scream “foul.” Of course they will be astoundingly hypocritical in doing so, having themselves used the threat of the “nuclear option” to secure the confirmation of a slew of reactionary Bush appointees to the federal bench, and Publius makes a strong case that the use of reconciliation is as clearly within the rules as the “nuclear option” would have been outside the rules.

On one point Publius errs: it is not the case that the 60-vote Democratic majority could modify the filibuster rule. Under the compromise of 1975, the number of Senators required to invoke cloture was reduced from two-thirds of those present and voting to three-fifths of all Senators. But ending a filibuster on any any further modification of Rule XXII still requires two-thirds.

This raises a Constitutional question. The Constitution gives each chamber the power to make its own rules. It assumes that motions are passed by simple majorities, except in the cases of treaty ratification, conviction on impeachment, and expulsion of a member, where super-majorities are specified. So when the House organizes itself each year, rules are adopted by a simple majority vote.

But the Senate is different. Because only one-third of the Senators are replaced at each election, the Senate has long considered itself a “continuing body,” which means that the rules remain in force until changed, rather than requiring new adoption in every new Congress. That allows the dead hand of the past to control the present, as the Rule XXII case illustrates.

But it is an elementary principle that no Congress can legislatively bind a future Congress. I have no doubt that the Senate could, by simple majority vote, pass a rule requiring unanimous consent to proceed to final passage of any bill, and requiring unanimous consent also to change that rule. The rule so passed would be Constitutional during the Congress that created it. But if today’s Senate can change procedure in a way that binds future Senates, that rule would in effect create a permanent unanimous-consent rule not present in the Constitution, converting the Senate into a Polish Diet. Would such a move really be consistent with the vision of the Framers? I don’t think so.

When something is described as a Constitutional question, the usual inference is that its final resolution rests with the Supreme Court. Not so in this case. The rules of the Senate are made by the Senate, and the courts may not interfere.

So I claim that it is in the power of a simple majority of the Senate to abolish the “continuing body” doctrine and pass new rules in the teeth of Rule XXII. The natural time to do that would be at the beginning of a new Congress: for example, in January 2011. I’m for it.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com