Notes on the Nuclear Option -- Part XXII

by Kagro X

Recent speculation in both the WaPo and Time have sparked a mini-panic, by positing that Sen. Tim Johnson's medical condition could embolden the Senate Republicans to either make an outright attempt to thwart  the transfer of control of the chamber to the new majority, or at least set themselves up for such a grab should Johnson (or any other Democrat) be replaced by a Republican during the session. Here's how it sets up, in the Time article, by Karen Tumulty:

The incapacitation of South Dakota Senator Tim Johnson has put all eyes in Washington on what is normally a little-noticed Senate vote now scheduled for Jan. 4. It is called the "organizing resolution," and is the bit of internal housekeeping that determines how committee memberships will be allotted between the two parties, as well as who will get to serve as chairman and ranking members of each of the panels. These resolutions traditionally stand until the next Congress, even if the makeup of the chamber shifts to put the other party in the majority, which is why precedent would seem to dictate that the Chamber would stay in Democratic hands, even if Johnson is replaced by a Republican. [...]

With Johnson unable to vote, Democrats still have enough to prevail, with 50 votes (including the two independent Senators, Joe Lieberman of Connecticut and Bernie Sanders of Vermont) to 49 for the Republicans. But Democrats now fear the real possibility that Republicans will filibuster that resolution.

Why would they do that? Two reasons. The first is that they could use the filibuster to leverage a concession guaranteeing that if, by whatever combination of circumstances, they regained the majority during the 110th Congress, they could assume control of the chamber, as Dems did when Jim Jeffords left the Republicans. The switch in control does not automatically come with the majority. Rather, a the new majority would have to exercise its ability to pass a new organizing resolution to make its control effective. Which brings us to reason number two. It's precisely because such organizing resolutions stand until superceded by a new one, that the Time piece posits:

If the Republicans filibuster the organizing resolution and the question drags on into January or even beyond, it presents another truly extraordinary possibility: a chamber with a new Democratic leader, but the existing set of Republican committee chairmen. That is because, until an organizing resolution is passed, incoming Majority Leader Harry Reid would have no control over the committees.

Has this ever happened? The WaPo's Al Kamen covers that question:

[T]he unsettled situation pales when compared with the bizarre 83rd Congress in 1953 and 1954, during which nine of the then-96 senators died, including one who committed suicide, and one resigned.

When the Senate convened on Jan. 3, 1953, the GOP was in charge 48 to 47, plus one former Republican, Sen. Wayne L. Morse-- an independent so independent that he moved his seat to the Senate aisle and would not vote with the Democrats to organize.

By Aug. 3 of that year, when the first session adjourned, three members -- including Majority Leader Robert A. Taft (R-Ohio) -- had died. When the next session began in January 1954, the Democrats had become the majority, 48-47-1, but they did not assume control. At one point during that session, as various members died, the D's even had a two-vote lead, but they never challenged Republican control of the body. The Senate adjourned Aug. 20 back where it had started, with the GOP holding a one-vote majority.

So why didn't the Democrats take over? For one thing, seems the "minority" leader, Sen. Lyndon Baines Johnson (D-Tex.), didn't particularly want to. He preferred to have the Republicans deal with Sen. Joseph McCarthy (R-Wis.), according to Senate associate historian Donald A. Ritchie. [...]

More important, there was "no way the Democrats could have claimed a majority," Ritchie said, "because the Republicans could have blocked them" with a filibuster, and in the Senate, most everything can be filibustered -- even by the minority.

A sly move, perhaps, by LBJ. But if it strikes you as unfair that the Senate Democrats of the 83rd Congress couldn't claim the majority because of the filibuster rule, then you're coming to understand the position that might be taken by the current Senate Republicans, who may find themselves in similar straits.

But wouldn't it be equally unfair for Republicans to filibuster an organizing resolution in the new 110th, and retain control of the chamber even from the minority?

Yes it would.

Would that by itself stop them from doing it?

No it would not.

So what else have we got? Well, remember the old "nuclear option" fight, back in '05? At the time, pro-nuke Republicans waved around a scholarly study of the arcana of Senate rules and procedures that focused on the various hardball tactics by which the filibuster rules had gradually been changed over the years. That study (PDF), published in the Harvard Journal of Law & Public Policy, offered Republicans their constitutional rationale for changing the filibuster rules, and eliminating its use against judicial nominations.

But there was a catch. (Republicans ignored it, of course, but it was there):

The "constitutionality" of 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.

And in case that's not enough for you, here's some help from our good friend Richard M. Nixon, of all people, in his capacity as President of the Senate (a/k/a Vice President of the United States), ruling on a battle over cloture reform in 1953 (a/k/a that wacky 83rd Congress):

Any provision of Senate rules adopted in a previous Congress which has the expressed or practical effect of denying the majority of the Senate in a new Congress the right to adopt the rules under which it desires to proceed is, in the opinion of the Chair, unconstitutional. It is also the opinion of the Chair that [the filibuster] in practice has such an effect.

The Chair emphasizes that this is only his own opinion, because under Senate precedents, a question of constitutionality can only be decided by the Senate itself, and not by the Chair.

And how does the Senate decide questions of constitutionality? By majority vote.

Now, it should be noted that Darth Cheney, as President of the Senate, may opt to take the gavel for the organizing resolution debate, if he chooses. And from the chair, he may even decline Nixon's advice and rule directly on the constitutionality of the question, as the plans for the nuclear option called for him to do.

But that ruling will be subject to appeal, as it would have been during the nuclear option maneuvers Republicans then proposed. Of course, circumstances have changed today, and Democrats, even without Johnson, would hold 50 votes to the Republicans 49. Assuming no sudden fits of insanity (hmmm...), the appeal prevails, the chair is overruled, and the question of the constitutionality of the Republican filibuster comes to the floor, to be decided by majority vote.

Get it? Got it? Good.

Damn, I hope that's right.

Comments

[emptywheel]

One other thing that might play into this--the resolution of the Jennings/Buchanan contest. I would imagine the Republicans would be more likely to pull such stunts if the House Dems refused to seat Buchanan.

[Kagro X]

My thinking is it doesn't matter. All things nuclear require a majority, and they don't have it.

Not only don't they have the majority, they don't have the precedent on their side, either.

Senate Dems may well opt to return the favor of an "escape clause" in the organizing resolution, but I don't see how a filibuster can work in this situation.

[Sara]

Reportedly there are a group of about 15 Republican Senators that Biden has more or less "organized" to support his 8 week set of hearings in the Foreign Affairs Committee, who see their own interests in distancing themselves from Bush/Cheney policy, and are coordinating with the Hearing Plans. Biden mentions Lugar and Hagel as well as Olympia Snow. I don't see them pushing any sort of barrier to the Democrats getting on with Senate Organization, and I frankly see the lack of much comment from Republican Senators on Tim Johnson's illness (as compared to the rabid media) an indication of this. If Biden is right and he has between 10 and 15 coordinating with his plans -- no filibuster.

I actually expect Tim Johnson to be in the Senate to vote on organization. He may still be bandaged, and perhaps in a wheel-chair, but if he is out of the hospital and all, I expect him to appear. Swearing-in day and the vote on organization is not particularly long, and he may well have to disappear for a few months for therapy to get back in best form, but he is a quiet but tough senator, and if he can do it, I expect he will.

The real class case on disabled Senators is Clair Engle of California, who had a brain tumor, and was brought in on a gurney to vote on the cloture resolution to end debate on the 1964 Civil Rights Bill. He voted yes by pointing to his eyes. Aye. He died a month later. Cloture passed by two votes.

I actually think the message of the November election more or less got through. Voters wanted less pointless partisianship, they wanted oversight, and above all, they wanted Congress to get things done. To the degree that Republicans appear to be roadblocks, particularly with regard to a VP at what -- 17%, and a President at 32%, they take the chance of being mopped up and flushed away in the next election. Hell, Congress was only at 13% in a recent poll. They are not going to go to the mat for Bush or Cheney next term.

[Kagro X]

I don't actually expect resistance from Republicans, either. But articles hinting at it in both Time and the WaPo deserve an answer.

Hmm. A list of 15 Republican Senators lining up to distance themselves from Bush/Cheney, eh? And the list includes Lugar, Hagel and Snowe?

It's taking on the form of another secret and mysterious list I keep, for other purposes.

[demtom]

I think Sara's right. The GOP brand is in crisis right now; the TX-23 result, and Bush's still-declining poll numbers, show that the public's rage was not exhausted on Election Day. A key election is 23 months away, and Stan Greenberg's latest shows the generic Dem with an 18 point lead. Sensible Republicans have to understand they could be looking at 1932 if they don't start making positive moves. Using a technicality like this -- over an ailing man's body -- would do them irreparable damage.

If it were the House, they still might; after all, they impeached a president with a 70% approval rating right after an election that pointed the other direction. But recall, even in that situation, it was the Senate that managed to cool things down. I can't believe there aren't enough intelligent -- or even just fearful -- Senators (Smith, Collins, Specter) who'd put the kibosh on any kind of power grab.

[Petey]

"I don't see how a filibuster can work in this situation."

Yup. I think you're dead on.

There are precedents from when Robert Byrd was Majority Leader.

[freepatriot]

21 repuglican senators are on the menu in 23 months, and America ain't too happy with repuglican policies right now

Iraq ain't gonna get any better

scooter libby's trial ain't gonna improve the Voter's opinion of repuglicans

so the repuglicans got to chose

do they want to fight for half of Congress now, and assure a smashing defeat in 2008

or do they cut their losses and cooperate with the Democrats in hope that their appeal will increase in the next 23 months

any repuglican tricks in the Senate ain't gonna stop Congressman Waxman, or even interfere with Mr Waxman's investigations

so the repuglicans can take control of the Senate (maybe) and give America a direct comparison between repuglican investigations and Democratic investigations

if the repuglicans were smart, they would avoid such comparisions

but when have the repuglicans done the "smart thing" lately ???

I hope the repuglicans fight, cuz the thought of a Democratic President taking the oath of office with 70 Democratic Senators behind him makes me smile

[Sara]

While of course the MSM is not going to make this observation, this week was actually characterized by the actual members of the Senate seeking to avoid playing into the controversy the media was trying to gin up. A few senators, Reid, Reed and his good friend, Tom Daschel made appearances at the hospital to see the family and the strickened Senator, and for the most part they just re-phrased the latest medical statement, and while Frist showed up -- I suppose to provide intelligence to the Republican Conference and assert his status as Majority Leader one last time -- we really didn't see them getting all involved in the controversy. They apparently went on with their planning for the coming power shift. I suspect ole Karl was calling Fox from the WH saying "gin it up, gin it up" -- but neither R or D Senators bit. Before the November Verdict it would not have played this way. Karl's partisian game is off the table for now, but who knows for how long. While I disagree with Mitch McConnell about nearly everything, he is a lot like Robert Byrd in playing the "Majesty of the Senate" role, and I suspect he had something to do with this week's script. If so, it was a tactical Bush loss.

And apparently the news from GW Hospital continues to be good -- so the finger of blame should be pointed at the media that dug the grave and did a happy dance on the mound of dirt a little prematurely.