Liar Liar Pants on Fire

"We cannot allow a minority" of the senators "to grab the Senate by the throat and hold it there."
Senate Majority Leader Mike Mansfield (D-MT)-1975

OK, it’s time for me to wade in on the Senate filibuster issue and the so-called "nuclear option."

I’ve kept my mouth pretty much closed and my keyboard directed toward other issues until now because I didn’t have much to add, but after spending a good deal of time researching the issue I feel competent to wade in and tell you what you need to know (that is, assuming that you already haven’t made up your mind on a partisan basis.)

I’ll start out by cutting to the chase…ever heard of a play by a guy named Shakespheare called “Much Ado About Nothing?” Can you guess where this discussion is going?

Ok, now that we are on the same page, let’s look at some details.

My first reference for your review is to point out what is said about the Senate in the US Constitution:

Article I, Section 5, Clause 2:

Each House [meaning the House of Representatives and the Senate] may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.”

Article II, Section 2, Clause 2:

[The president] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

So Article I, Section 5, Clause 2 says that the Senate may “determine the Rules of its Proceedings.” In my opinion, this makes the rest of the arguments against the “nuclear option” moot, but I’ll humor everybody on both sides of the political spectrum by offering additional information.

Also notice that Article II, Section 2, Cause 2 specifically requires Advice and Consent of the Senate by two-thirds concurrence on Treaties, but that it does not make the two-thirds requirement on “Judges of the supreme Court and all other Officers of the United States…”

On a historical note (as opposed to the hysterical note utilized by the media, the Republicans, and the Democrats,) the Senate does not actually have a 200+ year history (it varies between 200 and 214 years, depending on whether you watch CNN or FOX News) of having rules regarding the filibuster. According to the US Senate Website, the filibuster tactic only saw limited unofficial use in the early 1800’s, and ending debate by “cloture” only become an “official rule” in 1917 (Senate Rule 22). By the way, the original Rule 22 required 67 votes to end debate, but it was changed by …guess who?

The Democrats, that’s who…

“In 1975 the Senators changed the filibuster requirement from 67 votes to 60, after concluding that it only takes a simple majority of Senators to change the rules governing their proceedings. As Senate Majority Leader Mike Mansfield (D-MT) said at the time: "We cannot allow a minority" of the senators "to grab the Senate by the throat and hold it there." Senators Leahy, Kennedy, Byrd, and Biden, all agreed. Nearly a decade ago, Lloyd Cutler, the former White House Counsel to Presidents Carter and Clinton, concluded that the Senate Rule requiring a super-majority vote to change the rule is "plainly unconstitutional."

Before the current Senate argument and media uproar, a proposal to end ALL filibusters on all Senate business was “introduced in 1995 by senior Democrats, including Sens. Lieberman and Tom Harkin (D., Iowa). When it came to a vote, 19 Democrats, including leading blue-state senators such as Ted Kennedy and John Kerry, supported the measure."

That measure failed because even the Democrats realized that it was wrong. But changing the rules is still a possibility today, and IT IS A LEGAL ALTERNATIVE.

If changed, the appointment of judges will not be the only issues in which filibusters are forbidden:

“Rules guaranteeing up-or-down majority votes and abolishing the filibuster in various contexts are commonplace in modern Congresses as well. In fact, there are at least 26 laws on the books today abrogating the filibuster. For example:

You cannot filibuster a federal budget resolution (Congressional Budget and Impoundment Control Act of 1974).

You cannot filibuster a resolution authorizing the use of force (War Powers Resolution).

You cannot filibuster international trade agreements (Bipartisan Trade Promotion Authority Act of 2002).

And as the minority leader, Sen. Harry Reid (D., Nev.), well knows, you cannot filibuster legislation under the Nuclear Waste Policy Act of 1982.”

In spite of all the screeching heard from Democrats and Republicans in the media and by media “talking heads,” I say that this story to date has been portrayed in an intellectually dishonest manner. The fact is that the Republican party can leglly change the Senate rules to end Democratic filibusters of President Bush's judicial appointments. They have to be prepared to deal with the consequences if and when the Democrats regain a majority in the Senate.

It is also clear that either a) the media is horribly uninformed or misinformed about the issue or, b) the media is doing their normal biased protrayal of the issue to support their own adgenda.

Rather than tendering partisan sound bites and fanning the flames, wouldn’t it be nice if your newspapers and TV news shows did what I just did and actually explained this issue to you in detail?

Don't you agree that when it is all said and done, what we have here is…

MUCH ADO ABOUT NOTHING.

Next question?