If you saw Beck today you saw a very interesting panel discussion that included Judge Napolitano. The video clip below contains “secret” audio of Senator Chuck Schumer (D-NY) speaking to a group of “progressives,” and he is allegedly not aware that he is being taped. The quote I show below is at about the 2:40 mark, but the entire discussion is about Schumer’s remarks.
First thing to know is Senator Tom Udall (D-NMex) introduced a resolution on January 25, 2010, that some or all rules of the Senate may be changed on the first day of the 112th Congress, January 3, 2011, and he plans to do it with a “majority vote.”
And he wrote a letter to Barack Obama to tell him all about it. This was actually a speech delivered from the floor of the Senate, addressed to the President.
It is to say that, at the beginning of the 112th Congress, the Senate can exercise its constitutional right to adopt its rules of procedure by a simple majority vote.
There have some very interesting papers written that said that the constitutional right of the Senate to make its own rules supercedes the 2/3 that you can’t change the rules but only when Congress writes the new rules at the beginning of each congress, when we reorganize ourselves. That’s something we want to explore.
Schumer is talking about the U.S. Constitution, Article 1, Section 5 which says, in part:
Each House may determine the rules of its Proceedings…
So, those few words quoted above from the U.S. Constitution do not say when the House or Senate may determine their rules by changing them.
Senator Tom Udall’s letter to President Obama dated January 25, 2010, says the Senate body cannot get anything done because of “partisan rancor:”
Article 1, Section 5 of our Constitution states in clear language that, “each House may determine the Rules of its Proceedings.” Yet at the beginning of the 111th Congress, we implicitly acquiesced to rules adopted decades, and sometimes more than a century ago. Rules that most members of this Senate have never voted to adopt. Today these rules put in place generations ago make effective legislating nearly impossible.
It seems Udall believes that rule changes can only be made at the opening of each Congress. I feel certain this is what Schumer is talking about in the video.
Udall quote the rule about a 2/3 majority change:
As adopted in 1975, Rule XXII requires two-thirds of Senators present and voting to agree to end debate on a change to the Senate rules – in most cases 67 votes.
Taken together, these two rules effectively deny the Senate the opportunity to exercise its constitutional right to determine the Rules of its Proceedings … and serve to bind this body to rules adopted by its predecessors.
Opponents of rules reform argue that the Senate is a continuing body, and therefore the rules must remain in effect from one Congress to the next. I disagree with this assertion.
Udall quotes Republican Senator Orrin Hatch in a National Review article in 2005:
“The Senate has been called a „continuing body.‟ Yet language reflecting this observation was included in Senate rules only in 1959. The more important, and much older, sense in which the Senate is a continuing body is its ongoing constitutional authority to determine its rules. Rulings by vice presidents of both parties, sitting as the President of the Senate, confirm that each Senate may make that decision for itself, either implicitly by acquiescence or explicitly by amendment. Both conservative and liberal legal scholars, including those who see no constitutional problems with the current filibuster campaign, agree that a simple majority can change Senate rules at the beginning of a new Congress.”
So Senator Udall is appealing to the President of the United States to do something about how Senators handle their business.
Pathetic. Maybe not, but I suppose we will have a Senate Rules Czar who is not a Senator. Okay, this was not a letter, it was a speech, addressed to the President – but Obama would have a “Rules Change Czar” to govern the Senate if he could. We know he would. Note the use of the word “precedent.”
Update 3-17-10: In Udall’s speech, he said the current language was added by Johnson:
To appease a small group of Senators, Johnson had included new language. This language stated that the rules continued from one Congress to the next, unless they were changed under the rules. It was a move that would effectively bind all future Senates.
In a “Changing Senate Rules” (CRS) for Congress document, which was prepared in 2005 to explore the “Nuclear Options,” but is pertinent to any rule change, comes the following discussion, and it all comes down to “precedent.” “Precedent” is the yardstick, as Congress is considered a “continuous body” from session to session:
Opening Day5 Scenario One — Majority Rules Change (page CRS-3):
The Senate has long considered itself a continuing body. Consistent with this premise, the practice of the Senate has been not to re-adopt rules in a new Congress. There has been debate about whether the rules that govern the Senate in one Congress should continue in effect to the next Congress. Supporters of this position argue that, because only one-third of the membership of the Senate changes at any one time, and a quorum of the Senate is always in existence, the body does not need to reconstitute itself at the beginning of each Congress and, thus, the existing rules continue in effect from one Congress to the next.
Opponents of this position, however, point out that under these conditions, any change in rules must be considered under the existing rules, which can make changing the rules extremely difficult. They contend that this “entrenchment” of the rules unconstitutionally inhibits the Senate from exercising its constitutional authority to determine its own rules.
On the same page, the analyst writing this says: “Those who would seek to amend Senate rules or end a filibuster by a majority vote might use the first day of a new Congress to advance their proposal…
The analyst also indicates that precedent is very important, and uses the example of changing cloture rules [page CRS-8]:
Because the Senate has not utilized the “nuclear” or “constitutional” option before, the consequences of doing so are unclear. The potential exists for significant repercussions. In describing the Senate, most modern congressional scholars now refer to it as a “unanimous consent body.”
Another concern would be consequences for other rules of the Senate. Because it is so difficult to change the Senate’s rules, they have remained fairly stable, and therefore the basic structure of Senate procedure has remained fairly constant.
The Senate is governed by the Constitution, the Standing Rules of the Senate, permanent Standing Orders of the Senate (adopted in prior Congresses), temporary Standing Orders of the Senate (adopted at the beginning of each Congress), and statutes. It is also governed by precedents, which are decisions made by the presiding officer of the Senate, or the body itself, concerning how its rules operate in practice. The precedents tend to elaborate the Senate’s understanding of its own rules.
Precedents have tremendous weight in deciding parliamentary questions in the Senate, and the presiding officer, whether the Vice President or a majority party Senator, is expected to be guided by these precedents when ruling on a pending question.
The Standing Rules of the Senate would seem to be the obvious place to start if a Senator desired to change that chamber’s procedures. If there is no substantial opposition, the Standing Rules of the Senate can be changed by a simple majority vote; there is no supermajority requirement for changing the rules. If, however, there is opposition to the proposed rules change and if opponents seek to prevent a final vote on the proposal by extended debate and amendment, known as a filibuster, a supermajority requirement does exist for invoking cloture, or ending debate, on a rules change. [Refers to Senate Rule XXII].
I think all of the above is what Schumer was talking about. Here’s the video.