C'mon, Joe, Take the Neutron Bomb to this Filibuster

Kossack slinkerwink tells us that Vice President "Amtrak Joe" Biden has spoken out against the filibuster:

Vice President Joe Biden said at a Florida fundraiser Sunday that the 60-seat threshold for passing legislation in the Senate put a dangerous new roadblock in the way of American government.

"As long as I have served ... I've never seen, as my uncle once said, the constitution stood on its head as they've done. This is the first time every single solitary decisions has required 60 senators," Biden said. "No democracy has survived needing a supermajority."

Well, if this is about the survival of our Democracy, I say it may be time to recall the parliamentary maneuver threatened by the Republicans in 2005, dubbed the "nuclear option". Since this is a more precisely targeted version of that parliamentary maneuver, I refer to it as the "Neutron Bomb".


Recall those distant days of 2005 ...

Kossack homunq explained on 12 January:

1. the 2005 "Nuclear option".

Wikipedia, emphasis mine:

A senator makes a point of order calling for an immediate vote on the measure before the body, outlining what circumstances allow for this. The presiding officer of the Senate, usually the vice president of the United States or the president pro tempore, makes a parliamentary ruling upholding the senator's point of order. The Constitution is cited at this point, since otherwise the presiding officer is bound by precedent. A supporter of the filibuster may challenge the ruling by asking, "Is the decision of the Chair to stand as the judgment of the Senate?" This is referred to as "appealing from the Chair." An opponent of the filibuster will then move to table the appeal. As tabling is non-debatable, a vote is held immediately. A simple majority decides the issue. If the appeal is successfully tabled, then the presiding officer's ruling that the filibuster is unconstitutional is thereby upheld. Thus a simple majority is able to cut off debate, and the Senate moves to a vote on the substantive issue under consideration. The effect of the nuclear option is not limited to the single question under consideration, as it would be in a cloture vote. Rather, the nuclear option effects a change in the operational rules of the Senate, so that the filibuster or dilatory tactic would thereafter be barred by the new precedent.

humonq goes on to argue that:

Note that the nuclear option needs at least one, and probably two, people to assert that the current filibuster is unconstitutional. In 2005, the Republican argument was that Judicial filibusters were unconstitutional, but legislative ones are constitutional. This relied on some pretty thin reasoning that Article II, Section 2, of the U.S. Constitution, which says the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges...", requires an up-or-down vote.

I'll come back to the nuclear option later (I bet you can see where I'm going), but for now, just note that the nuclear option as proposed in 2005 is NOT relevant to legislative logjam, because it would only eliminate judicial filibusters.

Take Out Your Copy of the Constitution ...

Except ... notice that the threat to use the Nuclear Option was not based on the reasoning standing up in the Supreme Court, but in the precedent set when 51 Senators, or 50 Senators plus the VP, votes to table the appeal to the decision of the chair.

And there is Constititional language that specifically addresses the powers of the Senate on a particular kind of legislation, including the health insurance reform bill as well as the legislation to establish any cap and trade system: which is to say, the first clause of Article I, Section 7 of the Constitution:

Section 7 - Revenue Bills, Legislative Process, Presidential Veto

All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

The powers of the Senate with respect to Revenue bills are spelled out: they may propose or concur with Amendments. That's why Senate revenue bills always start with language that basically strips out the whole of the House language except for enabling the law, then put in the Senate version as an amendment.

And notice that the Senate has hobbled its own powers to amend with its toleration of the filibuster process: it is the Senate rules that dictate that an amendment to the House bill may be filibustered.

So, suppose the House bill as passed included a rider that specifies that after passage by the House, and after a certain number of additional legislative days have elapsed, any Senator may bring the bill for a vote, including any amendments that the Senate may have already passed.

Now the Senate might elect to ignore this rider, but of course, as with the threat of the Nuclear Option: it also might not. A Senator makes a point of order that under the terms of the rider, he wishes the measure be brought to a vote. The President of the Senate rules in favor under Article 7 read as meaning that the rider stands unless and until the Senate amends the bill to remove it. An opponent appeals the decision of the chair. That is moved to be tabled (which cannot be filibustered). The motion to table passes, possibly by 50+Biden. And then the measure is brought to a vote.

Now, note, if the House does this at the current point in the process, that would be with whatever other amendments deemed necessary to allow the Senate version of the bill to pass the House. If the Senate passes it without amendment, it goes straight to the President's desk, as being passed in the same form by both chambers. If some amendments have been made before the filibuster logjam is broken with this maneuver, then the House would have to pass that version, and then it could go to the President.

So, the minimum requirements would appear to be:

• A house majority, willing to pass the rider
  
• 41 Senators willing to protect the rider with the threat or action of filibuster of any amendment that would remove it
  
• One Senator willing to move under the rider when the time has elapsed
  
• One Chair willing to rule on Constitutional Grounds that the rider applies unless and until amended by the Senate
  
• 51 Senators, or 50 Senators + Biden, willing to explode the Neutron Bomb on filibusters on Revenue Bills
  

... except, you will recall, the "Nuclear Option" was never used, yet the Democrats caved on nominating odious Supreme Court justices.

Note that while many Senators are more or less in the pockets of health insurance companies, some are more deeply in the pockets of Oil Companies or sometimes Coal Companies. And if the Energy Companies think that it is more likely that they could defeat the Neutron Bomb directly in the context of cap and trade ... they might instruct their bought and paid for Senators to stand down on forcing the Neutron Bomb to be exploded in the Health Care debate.

Since once you've blown that particular hole in the "continuing rules" of the Senate, its open, and a similar rider could be employed whenever the House knows it has 41 Senators willing to defend it and 51 votes for passage ... bearing in mind that repeating a precedent is not as politically fraught hard as setting one.

So if the House Republicans (and Liebericans) cave (as they did before Christmas under threat of snowstorm) and do not filibuster so that the bill goes to a vote without anyone triggering the neutron bomb option ... well, then that leaves the neutron bomb back in the silo.

Though ... note that as the by the minority of the filibuster power continues, it would face a growing risk that the Neutron Bomb will eventually be exploded.

Playing Hardball with the Senate: Bring out the Nuclear Option

Burning the Midnight Oil for Progressive Populism

OK say, just hypothetically, that you are an administration looking to get one of your two signature policies passed. And the Senate, deeply entrenched in the pockets of the affected industry, looked like it will gut your legislation so badly that getting the result passed will stink of failure almost as much as the stench of failure if it is defeated.

Suppose its so bad that the Senate action is the most likely way for your party to lose the Majority in the House is for the disappointed Democratic supporters of so-called "Blue Dogs" to stay home in the midterms while fire up Republican opponents turn out in large numbers.

That would be the time to bring out the "nuclear option" ... the threat to radically change the Senate Filibuster rule so it can no longer be used as a roadblock to reform.


A short note on terminology

Yes, this soon after the anniversary of Hiroshima, it is striking that calling elimination go the filibuster "the nuclear option" is absurd hyperbole. It is, however, the term that is used, since the Republicans (back in the days when a "permanent Republican Majority" was a theory floating around) proposed eliminating filibusters on judicial appointments.


The Greatest Reform

Eliminate the filibuster, which is to say, restore the point from the original Senate rules of order that made a motion to bring the previous motion to a vote in order. That would make half the Senate plus One (or half the Senate plus the VP, when they are on the same side of the issue) sufficient to close debate - that is the rule that is used to make it impossible to have a filibuster in most committees and legislatures and boards around the world.


The Wikipedia Machine says that Aaron Burr proposed eliminating the rule, because it seemed redundant and had only been used once in the prior four years. However, the framing point here is that at the founding of the Senate, a filibuster was not possible: if a measure had the votes to win, debate could be closed off by the same winning margin.


The Great Reform

Don't know how likely the Greatest Reform is. However, if not likely, here's a version that runs on the "Make the Senators Do Their Goddamned Jobs" frame.

Under our system, each House can initiate legislation, and each House acts as a House of Review for legislation initiated by the other body. Now, the Senate can work under whatever arcane rules it wants to for initiating legislation, and indeed it can stage a sit-down strike on initiating legislation at all ... especially since early in the last century, it is now made up of elected representatives from every state in the union.

However, why should a House of Review have the right to refuse to fracking review the goddamned work of the House of Government, which is also made up of elected representatives from every state in the union.

So the "Great Reform" (but not Greatest Reform) is simply this: if the Senate has not brought its own version of legislation passed by the House to the floor in two calender months, it is in order to bring the original house legislation to the floor for an up or down vote without debate or amendment. Two months is plenty of time to get an existing bill out of committee and to the floor for a vote.

Note that legislation brought to the floor in this way does not require a conference committee and a second passage of the reconciled bill through both houses ... it is both houses passing the same wording, so it goes straight to the President for signature.

If the Senate wants to change something, bring an amended version to the floor. If the Senate wants to defeat something, bring the legislation to the floor and vote it down. But the Senate can no longer have a minority of Senators simply go on strike and refuse to do their goddamned job on something already enacted by the other chamber.

Note that if this was presented as legislation by the President (and there are various bills that touch on Congressional procedures ... various versions of PAYGO are an example) ... and in the event that it passes ... it would then be protected from being overturned by either a Senate filibuster, or a House majority in opposition to changing the rules.

Of course it would be subject to a filibuster threat, but the Senate filibustering on the principle of protecting its right to sit on its fat ass and do nothing would be a fine spectacle for setting up a rare increase in Senate majority by the party taking the White House in the first mid-term election.


The Small Reform

The Small Reform is more procedural than that one. It is changing the rules of the Senate so that the 3/5 required for cloture is 3/5 of the members present, and making quorum calls out of order once the Senate has been in session 24 continuous hours.

This would turn the filibuster back into the high political theatre it once was - and it would force the supporters of the filibuster to bring in their cots. They have to stay there and rotate control of the floor, and once a cloture vote has been brought to the batters box procedurally, the supporters of cloture are in a position to bum rush the room when the ranks of the filibusterers wane.

You can just see some of the hijinks ... the cable news channels will love to retell the story of the Senator that flew out of town, then put the slip on snoops watching the airport by catching the sleeper train back and walked in leading 50 Senators to bring the bill to a vote as seven of the filibusterers had headed off to caucus and fell asleep in the caucus room.


Once Rahm Gets Over His Hissy Fit ...

If we stand firm and push hard, the Progressive Caucus will stand firm on the public option. We are, collectively, stronger than Rahm Fracking Emanuel. He can swear and scream and carry on, but we are a threat to the job security of most members of the Progressive Caucus, if we get our backs up and support a primary opponent ... and Rahm Fracking Emanuel is not.

However, after he had beaten his head against that brick wall for long enough for it to sink into even his thick skull, this is where Rahm takes his "I don't give a frack what is in the bill, I want a win" act on the road to the Senate, and threatens to take away their filibuster toy unless they get something through that the Progressive Caucus will pass.


Conclusion

What, you think I can reach a conclusion on this without feedback? If you do, your more nuts than that lady at the townhall who said ...

... oh, never mind. Just have at it.