Notes on the Nuclear Option -- Part IV

by Kagro X

When we last left the issue of the nuclear option, we had come to the conclusion, thanks to the exhaustive history provided by the Gold, Gupta article that the "constitutionality" of what neo-cons prefer to call the "constitutional option" appears to rest on the Senate's alleged "right" to adopt new rules for itself under general parliamentary procedure at... the beginning of a new Congress.

Astute observers, of course, will note that the late April date during which Senator Frist is expected to make his play is, well, not the beginning of a new Congress.

And so, we have to ask: How does Frist propose to overcome (read: ignore) this apparent roadblock?

As commenter phaedrus called out in class yesterday:

Frist, in the opening day of the new Congressional session on January 4, 2005, stated: "Right now, we cannot be certain judicial filibusters will cease. So I reserve the right to propose changes to Senate rule XXII, and do not acquiesce to carrying over all the rules from the last Congress."

How shall we regard this tactic? If you're a Democrat, you'll likely want to regard it in historical context. And if you feel like leaning on Gold and Gupta to do it, I won't stop you. As they note, on January 14, 1975, Senators Walter Mondale (D-MN) and James Pearson (R-KS):

announced that they were invoking the constitutional option and were not acquiescing to the prior Standing Rules, irrespective of any Senate action under those rules:

I wish to state, as has been traditional at the commencement of
efforts to amend rule XXII, that, by operating under the Standing
Rules of the Senate the supporters of this resolution do not
acquiesce to the applicability of certain of those rules to the effort
to amend rule XXII; nor do they waive any rights which they may
obtain under the Constitution, the practice of this body, or certain
rulings by previous Vice Presidents to amend rule XXII,
uninhibited in effect by rules in effect during previous
Congresses.

And how did the Senate's deal with this unusual demand?

The Senate adopted a unanimous consent agreement “to nail down
doubly th[is] protection” and affirmed that Mondale and Pearson
would not lose any rights due to Senate “delay in the consideration”
of the constitutional option.

Naturally, Frist will have availed himself of the same protection, right? Apparently not. The record reflects no attempt to secure the rights Frist claims to have reserved beyond his unilateral assertion that he could.

So, we are left with this question: Does it mean anything in particular that Frist "reserve[d] the right to propose changes to Senate rule XXII?" Or that he "[did] not acquiesce to carrying over all the rules from the last Congress?"

On the one hand, I have found no precedent for permitting a reservation of the right to address rules changes under that theoretical state, said by proponents to exist at the beginning of a new Congress, during which the Senate operates under general parliamentary law. At least not without an accompanying unanimous consent agreement permitting it, as was the case with Mondale and Pearson's attempt in 1975.

On the other hand, the fact that that unanimous consent agreement was secured leaves open the question of whether or not Mondale and Pearson would have been able to get Senate consideration of their rules change proposal but for that unanimous consent agreement.

While there's no black letter answer on that, it seems clear that what Mondale and Pearson did was the cautious and prudent way of proceeding, which probably explains why Frist didn't go that route. True, unanimous consent might well not have been available to him, but that suggests only that Frist knew he was talking through his hat when he said in his January 4th statement:

Some, I know, have suggested that the filibusters of the last Congress are reason enough to offer a procedural change today, right here and right now, but at this moment I do not choose that path.

Democratic colleagues have new leadership. And in the spirit of bipartisanship, I want to extend my hand across the aisle.

I have a sincere hope that we can move forward past difficulties--beyond the past difficulties we saw in the last Congress--and look forward to a future of cooperation.

I seek cooperation, not confrontation. Cooperation does not require support for the nominees. Cooperation simply means voting judicial nominees brought to the floor up or down.

What better way to seek cooperation than to be straightforward about your plans, and seek the consent of the body to allow a fair vote on it, if you decide for whatever reason not to proceed in regular order?

But unsurprisingly, Republicans say securing unanimous consent is unnecessary. Watch the logic here employed by Todd Gaziano, the director of the Center for Legal and Judicial Studies at the Heritage Foundation, in a comment in The Hill's January 19th coverage:

Gaziano said that Democrats lost their chance to rebut Frist’s refusal to accept the rules of the previous Congress by not objecting to his statement on the floor. He said that Democrats now have a strong incentive to negotiate with Frist on crafting a new filibuster rule that exempts judicial nominees from stalling. Otherwise, Democrats would not have the right to filibuster legislation they oppose, such as Bush’s energy bill, he said.

“By their silence they have acquiesced in a way to Frist’s non-acquiescence,” he said. “I think that every senator wants a legislative filibuster. … I think both sides should come together to craft an acceptable legislative filibuster.”

"By their silence they have acquiesced... to Frist's non-acquiescence." It's an interesting theory, but not the soundest basis from which to alter the fundamental balance of power in the upper chamber of the national legislature. And via a counter-precedential constitutional ruling from the Chair, no less. If it wasn't for the fact that Frist and Cheney have no intention of abiding by Senate precedent and will instead rely on the "might makes right" rule, I'd say I'd have to agree with the Democratic Senate aide quoted later in the article:

Senior Democratic Senate aides, however, dismiss this interpretation as absurd. One aide said Frist’s statement is “definitely meaningless as far as a parliamentary standpoint.”

Why might it be meaningless, and by what authority does he say so? Part V is next.

Comments

[Petey]

I think the principle that 50 + 1 of the Senate can do anything they please is both correct on the constitutional merits, and also is in the long term interests of the left.

I also think that should the nuclear option go through, followed by Reid's nuclear winter, it will be extremely beneficial for the Dems in 2006.

But most importantly, I don't think Frist has the 50 votes.

-----

So like I say, I think many of your arguments are wrong on the constitutional merits, but I am enjoying reading the series.

It's gonna be fascinating to see how this plays out. Very good drama with very high stakes.

[DemFromCT]

Frist has been damaged by the Sciavo sideshow. It'll spill over into issues like this, and if the vote were already tenuous...

[ParliamentaryPal]

The attempt to establish the right of the bare majority to change any standing rule is a desperate and dangerous, and illegal, imho, tactic, one that invites chaos, legislatively. The concept that a temporary bare majority cannot strip away fundamental right from the minority, or change any standing rule of any body operating under parliamentary law, is one of the most central precepts of the parliamentary law. Negating it is totalitarian by nature. What is at stake is the only, sole, last, roadblock that a minority has to stop a temporary majority. If this can be done on judicial nominations, it can also be done on questions of war and peace, or any other legislation, notwithstanding the assertions of the present majority that their intentions are to the contrary. We can only hope that enough Republican Senators have respect enough for our system of government to oppose this if and when Frist or whoever the person is, calls for the point of order.

To assert that a rule of the Senate is unconstitutional, in my opinion, is frivolous, since by precedent, the Senate has operated under their own rules for 200+ years, and a basic precept of parliamentary law is that no resolution or rule can be against the law. If this rule or any rule was against the law, it should have been declared so from the start, and since it was not, it should be assumed to be Constitutional. To declare this rule unconstitutional, effectively declares ALL rules to be unconstitutional.

If the Republicans do it, the Democrats will be forced to carry through with their threat to refuse any unanimous consent request and use all parliamentary methods to block any legislation proposed, which could lead to chaos in the Senate, (because then the deserate majority may be inclined to assert the authority established by this present act) Can you see the slippery slope they are daring to tread?

We are looking at very dire circumstances. Every person who wants to avoid these should email or phone their Senators to object to the proposal that Rule XXII can be changed or any Standing Rule for that matter, by a bare majority.

Pal