Common Cause has taken the Senate to Court.
(Update Jan 2015: While the Common Cause effort is pending appeal, Senator Harry Reid, as majority leader, unilaterally altered the senate rules to allow for judicial nominations to be confirmed by a majority vote. Ironically, but fair enough, the democratically controlled senate voted to change the rules just prior to the republicans gaining control of the senate due to recent elections. On a hopefully unrelated note, Harry Reid has recieved broken bones in his ribs and face due to failing excercise equipment. (Be careful, Harry! and Bravo to you for your senatorial courage!)
The further I descend into the absurdity of attempting to decipher the rules which govern Senate procedure the more cynical I become. Here's a real gem excerpted from Rule VIII: .. "bills and resolutions that are not objected to will be taken up in their order"..
Despite multiple references to the contrary in Rule VII, stating unanimous consent is necessary to prevent proceeding, this language is being used to allow any senator to block any procedure which then requires 60 senators to overrule that objection in order for the Senate to proceed.
Before I need to seek cloture to proceed against any objections here, let me first thank Emmet Bondurant of Common Cause for the clearest explanation yet that I have found explaining the senatorial nonsense surrounding what he calls the Filibuster Rule.
If I understand him correctly, changes in The Senate Rules for ending debate are the reason that the Senate now requires at least 60 votes to do anything. The first change was in 1806 removing the previous question motion, and the second in 1975 changing the requirement for Cloture from 2/3 present to 3/5 of the entire Senate.
Far be it from me to challenge the legal interpretation of the Senate Rules from the mind behind the Supreme Court ruling requiring congressional districts to be approximately equal in population. Mr. Bondurant is now in the process of submitting a legal brief on the filibuster. I wish him well and look forward to following the progress of his lawsuit, Common Cause v. Biden, and sharing my observations and opinions on the matter as it proceeds.
In Mr. Bondurant's law review article titled, The Senate Filibuster: The Politics of Obstruction, he explains that the current rules of the Senate require a unanimous consent agreement or the adoption of a motion to proceed before any debate can even begin. Without unanimous consent, a motion to proceed is necessary, he explains, which is a debatable motion subject to a filibuster that, to overcome, would require 60 senators voting to adopt Cloture.
Then, if 60 senators agree to proceed to debate, it will again take 60 senators voting to end that debate if even one senator objects. The practical effect of these procedural tactics is to give absolute veto power to a minority of 41 senators over the majority. Which is what has been happening.
It appears that Senate rules provide that without unanimous consent from all senators virtually any question in the Senate requires 60 votes to proceed. If one senator objects to anything, even in secret, it is placed on hold effectively defeating whatever the senator objected to.
My first thought is where was the opposition to the Bush agenda?
Aside from some judicial nominations, there was little effort to filibuster the previous administration. From draconian tax cuts to nation building, from bank bailouts to the brink of austerity measures, there was no procedural strategy from the opposition to stop the Bush agenda.
The second thing that comes to mind is why doesn't the majority now require the minority to actually filibuster before surrendering? That way the public could witness the obstructionist tactics for political consideration. Instead, the senatorial majority that folded like wet towels for the Bush administration are now being out-manuevered procedurally by the current senatorial minority, accepting defeat on behalf of their constituents.
Certainly there must be some prerogative of the chair that could be exercised. What about deferring to the rules instead of custom and tradition? Where in the rules does it allow for a secret hold to be negotiated amongst leaders? Where in the rules is a hold provided for? Why not require an objection to be interposed during the proceedings as stated in the rules? Followed by a non-debatable motion to consider a bill against objection during the first two hours of a new legislative day?
I'm not the expert but it seems the rules provide options. Why not debate, or even declare the rules to a favorable interpretation under a point of order? What's the point of being majority leader if you're just going to roll over for the minority? Harry? Read the rules again, or appoint a commission to do it for you. It's wrong to depend on citizen groups to find solutions to overcome Senate rules that are undemocratic.
Despite everything I have read claiming that Rule XXII is the reason that the Senate can't get anything done, because 60 votes is too high of a threshold to end debate, I disagree. Requiring 60 senators to vote to end debate seems reasonable to me. Otherwise, debate would end as soon as the majority secures the majority vote, which could be before debate even begins.
The real problem is the unanimous consent requirement to proceed on every question. Any senator being able to object to any question and prevent consideration is a majority of one. Sixty senators being necessary to overrule one senator objecting to proceeding is ridiculous.
Changing the rules to require a majority vote to sustain an objection to a motion to proceed seems the logical remedy to the situation. That would place the burden on those who intend to obstruct the normal order of business and still allow for a determined senator to filibuster debate.
Filibustering during debate is much different than a unanimous consent to proceed to debate. Imagine the news reporting the Senate is stuck in debate because of a filibuster. People would tune in to watch the drama unfold and become informed. The current threat of a filibuster, derived from a secret hold, as negotiated in a back room, being voted on as a regular procedure, is not really a filibuster at all.
What is now being called a filibuster is a de-facto rule change requiring 60 votes for passage in order to defeat legislation with majority support. The Democratic Senate does not deserve the benefit of the doubt that they are not willing accomplices in the deprivation of representation of their constituents in order to serve the moneyed interests that fund the entire political system.
If a Republican President can squeak into office by the votes of the Supreme Court and violate the law ad-nauseam with signing statements and executive orders, certainly the Democratic leadership in the Senate can interpret their rules in a manner that allows legislation with majority Cloture votes to be considered as legislation passed, such as; Paycheck Fairness Act, Cyber Security Act, The disclose Act, The Dream Act, Public Safety Cooperation Act, Bring Jobs Home Act, The Buffet Rule, & more. All of which failed despite majority approval.
Though I had to remove a previous article based on the mistaken belief that Senate rules didn't provide for one senator to overrule the majority, I still believe the Senate rules are constitutional and therefore the Common Cause lawsuit misplaced.
The better remedy to the Senate shenanigans is electing senators that represent the interests of the public. At least sixty of them. The public understanding what their own interests are is necessary for them to vote for senators who will properly represent them.
American interests have been divided. Once minorities achieved the right to vote the profit hungry money interests became global. This reality has split the electorate into distinct and opposing interests. The divide is now between public and private interests as well as national and global interests, causing politicians to lie to the national public interests for votes, while serving the global private interests who own the entire political system, for money.
Representatives representing private global interests instead of national public interests is the reason the government is broke. The public has become apathetic because they know they are not being represented and are helpless to do anything about it. Every branch of government has become motivated by incumbency. The Senate is no exception.
The allegedly innocent act of removing the motion to previous question from the Senate rules now allows the Senate minority to obstruct the majority from passing legislation that would benefit the public.
What other little gems are hiding in the Senate rules that will allow senators an excuse from doing what is right for the public? If Mr. Bondurant succeeds and somehow the Senate changes its rules to provide for majority rule because of a court ruling, which is highly unlikely, I suspect it wouldn't be long before we find out.