Collective Conscious

Paul Krug­man pro­poses the sim­ple solu­tion to the fil­i­buster problem:

A Con­gres­sional Research Ser­vice report from 2005, when a Repub­li­can major­ity was threat­en­ing to abol­ish the fil­i­buster so it could push through Bush judi­cial nom­i­nees, sug­gests sev­eral ways this could hap­pen — for exam­ple, through a major­ity vote chang­ing Sen­ate rules on the first day of a new session.

This claim has been brandied about before in var­i­ous medi­ums, so I decided to take a look at the CRS report for myself. Here’s what it had to say on the matter:

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.

Effec­tively, this under­stand­ing of the rules would make it impos­si­ble to change them by a sim­ple major­ity on the first day, because it implies that the clo­ture rule itself is con­tin­u­ously in effect. Sen­ate prece­dent does, in fact, sup­port that interpretation:

In 1967, at the start of the 90^th Con­gress, how­ever, Sen­a­tor George McGov­ern pro­posed that the Sen­ate vote on a motion  to con­sider a res­o­lu­tion low­er­ing the thresh­old for invok­ing clo­ture.  He said that under the Con­sti­tu­tion, the Sen­ate has the right to adopt new rules by major­ity vote.  Sen­a­tor Everett Dirk­sen then raised a point of order that Sen­a­tor McGovern’s motion would cir­cum­vent exist­ing Sen­ate rules.  The pre­sid­ing offi­cer, Vice Pres­i­dent Hubert Humphrey, ruled that, because Sen­a­tor Dirksen’s point of order raised a con­sti­tu­tional issue, the Sen­ate itself should rule on whether the point of order should be sus­tained.  Under Sen­ate prece­dents, the pre­sid­ing offi­cer may not rule on a con­sti­tu­tional point of order and instead must sub­mit the point of order to the full Sen­ate for a vote. Humphrey also ruled that the point of order was sub­ject to a tabling motion, which was not debat­able. Sen­a­tor McGov­ern moved to table the point of order, and by a vote of 37–61 the Sen­ate refused to table it.  The Sen­ate then voted 59–37 to sus­tain the point of order.

In short, the Sen­ate has faced the ques­tion before, and declared that the answer is “no.” Over­turn­ing such a prece­dent is an unlikely course of action for the Sen­ate — for rea­sons that have been explained before.