Friday, February 05, 2010

Senate Rule 22 and a Majority of 41

Due to Rule 22 and the election and appointment of Sen. Scott Brown (MA) the conservatives now hold a majority of 41 seats in the US Senate. In the US Senate there is no limit on debate. Once you get the floor you can speak to your heart's content. That is, unless 60 senators vote to shut you up by invoking "cloture", which ends debate.

To filibuster once meant gaining the floor and speaking until you dropped. Not anymore. Now, 41 Senators can end debate anytime they want on anything they want except for budget issues just by informing the majority leader that they want a filibuster, although the Majority Leader has the power to require a traditional filibuster. In other words, in the modern US Senate, the minority rules.

Filibusters, improperly used, can bring government to a halt and the use of the filibuster is becoming almost commonplace in the current Congress.

So what can be done to change Senate Rule XXII? Senate Rules are determined by the Committee on Rules and Administration chaired by Sen. Charles Schumer (D-NY). When Republicans held power, they didn't like filibusters either. They had plans to do away with or modify Rule XXII called the "nuclear option". There are a couple of ways to do this. The easiest and quickest would be to declare the Rule unconstitutional. In fact the Rule was deemed unconstitutional by the Supreme Court back in 1892 in a case called "U.S. v. Ballin". The court found that the "filibuster rule" could be changed by a simple majority vote of the Senate. Current Senate rules call for 67 votes to change the filibuster rule.

Another method would be to change Rule XXII, by majority vote, on the first day of a new Congressional session (2011 is the next new Congress). The theory here is that an "old" Congress cannot set the rules for a "new" Congress.

I am all for protecting the rights of the minority members in Congress. But it doesn't seem logical that Senators from very small states, representing about 10% of the US population can, for all purposes, prevent the duly elected party in power from governing. Moreover, the filibuster rule in the Senate is also preventing the House of Representatives from governing.

1 comment:

gdk said...

You might be interested in this podcast, with labor lawyer Thomas Geoghegan, which focuses on Rule 22.