Stop Me Before I Legislate Again
Steve Bartman
scorched-earth tactics a question occurred to me:
Would it be constitutional for the Congress to pass a bill, and the
president to sign same, which prevented any future Congress from
altering or overturning that law for a set period? Say, the a
conference committee produces a health care bill which clears
filibusters and is signed into law, and part of the bill forbids a
future Congress, with different party splits, from chucking the whole
thing out the window before 2050?
I understand that there are political and public relations reasons why
set law is often left alone, but would it be legal to make it
impossible to change?
Steve
Stuart A. Bronstein
> Would it be constitutional for the Congress to pass a bill, and the
> president to sign same, which prevented any future Congress from
> altering or overturning that law for a set period?
Of course it would be constitutional to pass. But it would be
ineffective to prevent a future Congress from amending it.
Barry Gold
Steve Bartman <sbar...@visi.com> wrote:
>Watching the debate over health care and the partisan posturing and
>scorched-earth tactics a question occurred to me:
>
>Would it be constitutional for the Congress to pass a bill, and the
>president to sign same, which prevented any future Congress from
>altering or overturning that law for a set period? Say, the a
>conference committee produces a health care bill which clears
>filibusters and is signed into law, and part of the bill forbids a
>future Congress, with different party splits, from chucking the whole
>thing out the window before 2050?
Short answer: No.
Each Congress has the power to make laws (with the concurrence of the
President, or over his veto). That includes amending -- or even
repealing -- previous laws. So the only way to make such a law
"permanent" is to add it to the Constitution. But that would be a
really stupid idea: the abortion that is the current healthcare plan
is guaranteed to need tinkering to make it work -- if it _can_ be
made to work at all. If you prohibited future Congresses from
amending it, you would lock a bad design into the Constitution and the
only way to fix it (including changing the list of what treatments are
covered) would be to go through the whole Amendment process again: 2/3
of each house and ratification by 3/4 of the states.
Long answer: There is a kind of roundabout way to do this, if they
*really* wanted to. Each house of Congress sets its own rules of
order. So the HR and Senate could separately amend their rules of
order to make amendments to the healthcare system "out of order",
subject to an override by, say, a 90% vote. They would also have to
change the rules so that amending that section requires a similar
supermajority.
Mind you, even then it is possible that SCOTUS might rule that was an
attempt to get around the Constitution's rules about amendment and
the powers of Congress, so there is no real guarantee.
And even then, it would be a stupid idea for the reasons I outlined
above.
--
Barry Gold, webmaster:
Conchord: http://www.conchord.org
Los Angeles Science Fantasy Society, Inc.: http://www.lasfsinc.org
Cy Pres
wrote:
>Would it be constitutional for the Congress to pass a bill, and the
>president to sign same, which prevented any future Congress from
>altering or overturning that law for a set period? Say, the a
>conference committee produces a health care bill which clears
>filibusters and is signed into law, and part of the bill forbids a
>future Congress, with different party splits, from chucking the whole
>thing out the window before 2050?
Sure. But the next Congress could overturn that legislation just like
any other legislation, by a majority vote, so it would be a
meaningless provision. The only effective means of accomplishing such
a goal would be to pass a constitutional amendment, which also must be
ratified by the states.
Robert Bonomi
"Yeah, but" applies.
Congress _could_ do it, but a future Congress could repeal the section
prohibiting changes, and _then_ repeal the whole thing.
It's really, *REALLY* difficult to write language such that it (a)
passes legal muster, and (b) is 'unmodifiable' by a later incarnation
of the same agency that enacted it.
Deadrat
news:spaog5lhabshb6k3h...@4ax.com:
It's certainly Constitutional for Congress to pass such a bill, but I think
you mean to ask whether it withstand scrutiny by the Supreme Court. I'd
say the answer is probably, but the provision is ineffective: if one side
has the power to repeal the underlying bill, then it also has the power to
repeal the no-repeal provision.
Something like this happened in 1836, when the House passed a resolution
forbidding the discussion of slavery for 9 years. Actually it was a House
rule that immediately tabled anti-slavery petitions from the public. It
was a House rule (not a law), but it had the effect of preventing any anti-
slavery laws. This so-called gag rule had to be renewed each year, since
it wasn't a standing rule, and there was a lot of cat-and-mouse
parliamentary procedure to get slavery discussed before the reimposition of
the gag rule. In 1840, pro-slavery forces barely managed to get the gag
rule upgraded to a standing rule, but like all such things it couldn't
survive the loss of majority support. It was rescinded in 1844.
Deadrat
> In article <spaog5lhabshb6k3h...@4ax.com>,
> Steve Bartman <sbar...@visi.com> wrote:
>>Watching the debate over health care and the partisan posturing and
>>scorched-earth tactics a question occurred to me:
>>
>>Would it be constitutional for the Congress to pass a bill, and the
>>president to sign same, which prevented any future Congress from
>>altering or overturning that law for a set period? Say, the a
>>conference committee produces a health care bill which clears
>>filibusters and is signed into law, and part of the bill forbids a
>>future Congress, with different party splits, from chucking the whole
>>thing out the window before 2050?
>
> Short answer: No.
>
> Each Congress has the power to make laws (with the concurrence of the
> President, or over his veto).
Or without either concurrence or override. If the President doesn't
return a bill to Congress within 10 days while Congress is in session,
the bill becomes law.
<snip/>
> Long answer: There is a kind of roundabout way to do this, if they
> *really* wanted to. Each house of Congress sets its own rules of
> order. So the HR and Senate could separately amend their rules of
> order to make amendments to the healthcare system "out of order",
> subject to an override by, say, a 90% vote. They would also have to
> change the rules so that amending that section requires a similar
> supermajority.
I think you have the same problem of infinite regression. Each house
could by simple majority simply amend the rule requiring a supermajority
to amend a rule. This is certainly true of the House, which is
considered a new body after each election.
>
> Mind you, even then it is possible that SCOTUS might rule that was an
> attempt to get around the Constitution's rules about amendment and
> the powers of Congress, so there is no real guarantee.
This seems unlikely, since each house is the sole arbiter of its rules,
but just because a law is somehow made "permanent," doesn't elevate it
the status of a Constitutional provision.
<snip/>
Steve Bartman
<spam...@lexregia.com> wrote:
I had envisioned language in it that prevented amendment,
consideration, etc. for 50 years. Essentially my question was, "Does
Congress have to follow laws it itself passes?" The balance of answers
seems to be no, possibly in part because each "Congress" is a new
Congress, and any law may be taken up for consideration unless put
into the Constitution.
Which makes my concern over the current deep rancor with health reform
every worse. Passing a bill after cloture invites the next GOP
majority Congress to throw out the whole (proposed) reformed system,
with great social, and real economic disruption, costs.
Steve
Barry Gold
>I had envisioned language in it that prevented amendment,
>consideration, etc. for 50 years. Essentially my question was, "Does
>Congress have to follow laws it itself passes?" The balance of answers
>seems to be no, possibly in part because each "Congress" is a new
>Congress, and any law may be taken up for consideration unless put
>into the Constitution.
Also because one of Congress's powers is to pass laws, which includes
laws that change or repeal existing laws. So even the "same" Congress
can repeal or heavily modify the law they just passed, if they decide
it was a Bad Idea(TM) after all.
>Which makes my concern over the current deep rancor with health reform
>every worse. Passing a bill after cloture invites the next GOP
>majority Congress to throw out the whole (proposed) reformed system,
>with great social, and real economic disruption, costs.
You are neglecting at least two factors:
1. In order to "throw out" the system, they would need to get the
bill (to repeal Obamacare or heavily modify it) past the exact same
procedural hurdles that face the current bill:
. approval by both houses
. a possible filibuster in the Senate (requiring 60 votes for
Cloture)
. signature by the President.
The framers designed the system to be resistant to change, but not to
be impossible to change and/or to correct mistakes.
2. If the system "works", then lots of people will like it. Passing a
bill to throw it out would then be political suicide. We have several
times had a Congress dominated by Republicans (e.g., 1995-1999) but
there has not been a serious attempt to repeal Social Security.
OTOH, if the system _isn't_ working -- if people face long waits for
treatment, or find that they are getting worse treatment than before,
or that the cost (in taxes and/or borrowed money) is too high -- then
it is very likely that Congress will repeal or modify it. (My money
is on modifying it rather than outright repeal.) That would be just
as true of a Democratic Congress as of a Republican one.
"The Constitution may not follow the flag, but the Supreme Court
follows the election returns," and this applies even more so to
Congress.
In short, Congress will not repeal the health care reform unless it
becomes highly unpopular. And if that happens, they should.
Shouldn't they?
Cy Pres
wrote:
>Long answer: There is a kind of roundabout way to do this, if they
>*really* wanted to. Each house of Congress sets its own rules of
>order. So the HR and Senate could separately amend their rules of
>order to make amendments to the healthcare system "out of order",
>subject to an override by, say, a 90% vote. They would also have to
>change the rules so that amending that section requires a similar
>supermajority.
Even such a rule would be subject to parliamentary maneuvers like the
"nuclear option" or, as it is called by whomever is invoking it, "the
constitutional option."
http://en.wikipedia.org/wiki/Nuclear_option
Effectively, just as each house of Congress may pass laws by simple
majority, so may each house of Congress amend its own rules by simple
majority.
Seth
>Long answer: There is a kind of roundabout way to do this, if they
>*really* wanted to. Each house of Congress sets its own rules of
>order. So the HR and Senate could separately amend their rules of
>order to make amendments to the healthcare system "out of order",
>subject to an override by, say, a 90% vote. They would also have to
>change the rules so that amending that section requires a similar
>supermajority.
Still beatable by 51%:
"I move to amend the rules of order to require only a majority in that
case."
"Objection: Out of Order: our rules require 90% agreement for such a
motion to be heard."
Chair: "Objection upheld"
"Move to overrule the chair."
The vote to overrule the chair gets a simple majority. The decision
of the chair is overruled, and the motion is taken up and passes. An
objection that it only passed by 53% when it required 90% is again
upheld by the chair, and overruled by a simple majority.
Seth
Cy Pres
wrote:
>In article <12591607...@irys.nyx.net>, Barry Gold <bg...@nyx.net> wrote:
>
>>Long answer: There is a kind of roundabout way to do this, if they
>>*really* wanted to. Each house of Congress sets its own rules of
>>order. So the HR and Senate could separately amend their rules of
>>order to make amendments to the healthcare system "out of order",
>>subject to an override by, say, a 90% vote. They would also have to
>>change the rules so that amending that section requires a similar
>>supermajority.
>
>Still beatable by 51%:
>
>"I move to amend the rules of order to require only a majority in that
>case."
>
>"Objection: Out of Order: our rules require 90% agreement for such a
>motion to be heard."
>
>Chair: "Objection upheld"
>
>"Move to overrule the chair.
Slightly more complicated, but same idea.
Senator Nuclear: Point of order.
President Pro Tem: What is the gentleman's point of order?
Senator Nuclear: Call for an immediate vote on the measure before us.
The Constitution in article I, section 5, says that each House shall
determine the rules of its proceedings. Now we are at the beginning of
Congress. This Congress is not obliged to be bound by the dead hand of
the past.
President Pro Tem: The gentleman's point of order is well taken.
Article I of the Constitution requires the Senate to act by majority,
and this attempt by the minority to obstruct this process is
unconstitutional.
Senator Buster: Does the Chair choose to act as the judgment of the
Senate?
Senator Nuclear: Move to table the appeal.
[Proceed immediately to roll-call vote. If the opponents of the
filibuster win, the President's finding that the filibuster was
unconstitutional is upheld and the pending matter immediately proceeds
to a vote.]
{See http://en.wikipedia.org/wiki/Constitutional_option or, for more
specific and not fictional examples. The language used by "Senator
Nuclear" was actually used by Senator Robert Byrd in one instance
while threatening the nuclear option in 1979.}
Robert Bonomi
*MUCH* easier -- simply "move to suspend the rules". (This is a long-
established 'standard practice' when someone wants to do something that
is 'not allowed' by 'the rules'.)
Then simply introduce and pass the amending (or repealing) legislation.
With only a simple majority required.
Robert Bonomi
Cy Pres <c.p...@yahoo.com> wrote:
>On Sat, 28 Nov 2009 23:24:24 +0000 (UTC), se...@panix.com (Seth)
>wrote:
>
>>In article <12591607...@irys.nyx.net>, Barry Gold <bg...@nyx.net> wrote:
>>
>>>Long answer: There is a kind of roundabout way to do this, if they
>>
>>Still beatable by 51%:
>>
>>"I move to amend the rules of order to require only a majority in that
>>case."
[[.. sneck ..]]
>
>Slightly more complicated, but same idea.
>
>Senator Nuclear: Point of order.
>
>President Pro Tem: What is the gentleman's point of order?
>
>Senator Nuclear: Call for an immediate vote on the measure before us.
>The Constitution in article I, section 5, says that each House shall
>determine the rules of its proceedings. Now we are at the beginning of
>Congress. This Congress is not obliged to be bound by the dead hand of
>the past.
The point of order is well taken. The 'call for the vote' _may_, or _may_
_not_ be in order. And, absent special circumstances, the chamber has
to FIRST vote to end debate and only if that passes, do they proceed to the
vote on the 'underlying' measure being debated.
>President Pro Tem: The gentleman's point of order is well taken.
>Article I of the Constitution requires the Senate to act by majority,
>and this attempt by the minority to obstruct this process is
>unconstitutional.
>
>Senator Buster: Does the Chair choose to act as the judgment of the
>Senate?
>
>Senator Nuclear: Move to table the appeal.
>
>[Proceed immediately to roll-call vote. If the opponents of the
>filibuster win, the President's finding that the filibuster was
>unconstitutional is upheld and the pending matter immediately proceeds
>to a vote.]
One first has to have a vote on the 'motion to table'.
IF that motion fails, then one has to have a vote on the call for the
immediate vote. Then, and _only_then_, does one proceed to the vote on
the 'pending matter'. :)
Note: This is a minor variation on a parliamentary gimmick traditionally
known as 'nailing the coffin lid down'. Generally employed on some _very_
polarizing legislation that has passed (or failed) by a small margin, and
that only as a result of a lot of back-room dealing. There are two steps
to the process:
1) Someone makes a "motion to reconsider the vote by which the bill
passed (or failed to pass)" the chamber. Debate _is_ allowed on this
motion.
2) _Before_ that motion (which only requires a simple majority to pass)
is voted on, a motion is made to "lay the motion to reconsider on the
table". The 'motion to table' is 'non debatable', and thus leads to
an immediate vote -- postulating that it _is_ 'seconded', that is.
3) If the motion to 'table the motion to reconsider' _passes_, the *ONLY*
way to deal further with that underlying matter during the same
'convening' (not just the current annual 'session' but until the next
'instance' of the body is seated) of the legislative body, is to
"raise the motion from the table" which requires a super-majority,
typically 2/3 to accomplish. One _cannot_ simply introduce a new
motion to reconsider -- it is 'against the rules' to have two motions
on the same point pending at the same time; and, similarly, one cannot
bring in other legislation on the same issue, because action on the
just voted legislation is 'still active'. Checkmate. <grin>
More fun -- if the 'motion to table the motion to reconsider' fails,
then one has to deal with the 'motion to reconsider', itself. Regardless
of the outcome of the vote on that motion, parliamentary rules prohibit
introducing another 'motion to reconsider' the vote on the "real"
legislation.
Cy Pres
(Robert Bonomi) wrote:
>>Senator Nuclear: Move to table the appeal.
>>[Proceed immediately to roll-call vote. If the opponents of the
>>filibuster win, the President's finding that the filibuster was
>>unconstitutional is upheld and the pending matter immediately proceeds
>>to a vote.]
>One first has to have a vote on the 'motion to table'.
>IF that motion fails, then one has to have a vote on the call for the
>immediate vote. Then, and _only_then_, does one proceed to the vote on
>the 'pending matter'. :)
You have repeated exactly what I said. The roll-call vote is on
tabling the appeal. If the appeal is tabled, then the pending matter
immediately proceeds to a vote. I more or less fabricated that
transcript from events where it has occurred, including a quote
directly taken from Robert Byrd, although Byrd was merely threatening
to invoke the "nuclear" or "constitutional option," and the threat
itself was sufficient to break the filibuster.
Robert Bonomi
Cy Pres <c.p...@yahoo.com> wrote:
>On Mon, 30 Nov 2009 18:17:09 -0600, bon...@host122.r-bonomi.com
>(Robert Bonomi) wrote:
>
>>>Senator Nuclear: Move to table the appeal.
>
>>>[Proceed immediately to roll-call vote. If the opponents of the
>>>filibuster win, the President's finding that the filibuster was
>>>unconstitutional is upheld and the pending matter immediately proceeds
>>>to a vote.]
>
>>One first has to have a vote on the 'motion to table'.
>>IF that motion fails, then one has to have a vote on the call for the
>>immediate vote. Then, and _only_then_, does one proceed to the vote on
>>the 'pending matter'. :)
>
>You have repeated exactly what I said. The roll-call vote is on
>tabling the appeal. If the appeal is tabled, then the pending matter
>immediately proceeds to a vote.
No, it does not. If the motion to table the appeal of the chair's rulling
is carried, the chamber proceeds to _debate_ the call for an 'immediate
vote' on the underlying issue -- this is a motion that _is_ subject to debate,
albeit strictly _limited_ debate. IF _that_ passes, one then proceeds to
the 'immediate vode' on the pending matter.
I'll admit I had it somewhat incorrect in my first response, I had read it
that the motion to table was tabling the call for the immediate vote.
"Just because" someone 'calls for the question' does not mean that the matter
'in question' is put to an immediate vote. _First_, there must be a vote on
whether or not to terminate debate and proceed to the immediate vote. Other
procedural shennigans may add one (or more) additional votes -- such as the
vote to table the appeal -- before the vote to terminate debate, but there is
no way to avoid the vote on the call for the question.
> I more or less fabricated that
>transcript from events where it has occurred,
That's where I went a bit astray the first time -- you short-circuited the
process, and had Sen. Nuclear move to table an appeal that Sen. Bluster (I
think it was) had -not- "formally" made.
> including a quote
>directly taken from Robert Byrd, although Byrd was merely threatening
>to invoke the "nuclear" or "constitutional option," and the threat
>itself was sufficient to break the filibuster.
I've atually witnessed the procedure, multiple times. :)
Cy Pres
(Robert Bonomi) wrote:
>In article <b55eh5tbbosiqkbjj...@4ax.com>,
>Cy Pres <c.p...@yahoo.com> wrote:
>>You have repeated exactly what I said. The roll-call vote is on
>>tabling the appeal. If the appeal is tabled, then the pending matter
>>immediately proceeds to a vote.
>No, it does not. If the motion to table the appeal of the chair's rulling
>is carried, the chamber proceeds to _debate_ the call for an 'immediate
>vote' on the underlying issue -- this is a motion that _is_ subject to debate,
>albeit strictly _limited_ debate. IF _that_ passes, one then proceeds to
>the 'immediate vode' on the pending matter.
I think you're operating under the presumption that if the
constitutional option is successfully invoked, that the Senate will
automatically proceed under the limited debate provision of the
post-cloture provisions of Rule XXII, which allow each Senator no more
than one hour for debate. I'm not certain this is necessarily the
case. I believe that just as the majority may dispense with the
two-thirds requirement of Rule XXII, they may also dispense with the
provision allowing for continued debate and proceed immediately to a
vote.
(That the Senate is unlikely to do so is immaterial; it has that
power.)
>I'll admit I had it somewhat incorrect in my first response, I had read it
>that the motion to table was tabling the call for the immediate vote.
The motion to table is the motion to table the appeal. If the appeal
is not tabled, then the original ruling stands as the new Senate rule,
and the filibuster is unconstitutional. As you point out, the Senate
would then probably proceed under the post-cloture provisions of Rule
XXII, which provide for limited debate:
http://www.sourcewatch.org/index.php?title=Senate_Rule_XXII_-_Precedence_of_motions
>"Just because" someone 'calls for the question' does not mean that the matter
>'in question' is put to an immediate vote. _First_, there must be a vote on
>whether or not to terminate debate and proceed to the immediate vote. Other
>procedural shennigans may add one (or more) additional votes -- such as the
>vote to table the appeal -- before the vote to terminate debate, but there is
>no way to avoid the vote on the call for the question.
>> I more or less fabricated that
>>transcript from events where it has occurred,
>That's where I went a bit astray the first time -- you short-circuited the
>process, and had Sen. Nuclear move to table an appeal that Sen. Bluster (I
>think it was) had -not- "formally" made.
The question whether the President (of the Senate) intends to stand as
the judgment of the Senate *is* the formal appeal from the chair.
Specifically, I am quoting verbatim the formal appeal from the Chair
made by Senator Spessard Holland as reflected in 91 CONG. REC. 357-58
(1969).
>> including a quote
>>directly taken from Robert Byrd, although Byrd was merely threatening
>>to invoke the "nuclear" or "constitutional option," and the threat
>>itself was sufficient to break the filibuster.
>I've atually witnessed the procedure, multiple times. :)
In the U.S. Senate? That would make you pretty old. It was most
recently used in 1975, as I recall, and any subsequent invocations of
it have been mere threats to use it, such as the most recent
Republican threats over the filibustering of judicial nominations.
The concept of filibustering judicial nominations, or nominations in
general, were generally not considered in most of the seminal
arguments over the constitutional option, because the practice was
unheard-of.
Cites to various things are from Martin B. Gold & Dimple Gupta, The
Constitutional Option to Change Senate Rules and Procedures: A
Majoritarian Means to Over Come the Filibuster, 28 Harv. J.L. & Pub.
Pol'y 205 (2004), available at
www.law.harvard.edu/students/orgs/jlpp/Gold_Gupta_JLPP_article.pdf
(last visited Dec. 5, 2009).
I might look up some of these transcripts and post an actual one, just
to avoid the argument over my fabricated one which probably, as you
point out, gets a few fine points wrong.
Cy Pres
>The motion to table is the motion to table the appeal. If the appeal
>is not tabled, then the original ruling stands as the new Senate rule,
>and the filibuster is unconstitutional.
Strike "not."
Robert Bonomi
Cy Pres <c.p...@yahoo.com> wrote:
>On Fri, 04 Dec 2009 14:03:16 -0600, bon...@host122.r-bonomi.com
>(Robert Bonomi) wrote:
>
>>In article <b55eh5tbbosiqkbjj...@4ax.com>,
>>Cy Pres <c.p...@yahoo.com> wrote:
>
>>>You have repeated exactly what I said. The roll-call vote is on
>>>tabling the appeal. If the appeal is tabled, then the pending matter
>>>immediately proceeds to a vote.
>
>>No, it does not. If the motion to table the appeal of the chair's rulling
>>is carried, the chamber proceeds to _debate_ the call for an 'immediate
>>vote' on the underlying issue -- this is a motion that _is_ subject to debate,
>>albeit strictly _limited_ debate. IF _that_ passes, one then proceeds to
>>the 'immediate vode' on the pending matter.
>
>I think you're operating under the presumption that if the
>constitutional option is successfully invoked, that the Senate will
>automatically proceed under the limited debate provision of the
>post-cloture provisions of Rule XXII, which allow each Senator no more
>than one hour for debate. I'm not certain this is necessarily the
>case. I believe that just as the majority may dispense with the
>two-thirds requirement of Rule XXII, they may also dispense with the
>provision allowing for continued debate and proceed immediately to a
>vote.
Yes they can, but they have to have a _vote_ to 'dispense with the provision'
you mention. <grin>
>>> I more or less fabricated that
>>>transcript from events where it has occurred,
>
>>That's where I went a bit astray the first time -- you short-circuited the
>>process, and had Sen. Nuclear move to table an appeal that Sen. Bluster (I
>>think it was) had -not- "formally" made.
>
>The question whether the President (of the Senate) intends to stand as
>the judgment of the Senate *is* the formal appeal from the chair.
Semantic quibbling, but, no it is not. It is a question _to_ the chair.
All the actual appeals of a chair's ruling that I have heard have been a
declarative statement of the general form "I appeal to the members of
the {chamber} (to overrule the chair)."
With the chair then stating something along the lines of "There has been
an appeal of the ruling of the chair regarding ______. Is there any
discussion?"
At _that_ point someone could make the motion to table the appeal.
>>> including a quote
>>>directly taken from Robert Byrd, although Byrd was merely threatening
>>>to invoke the "nuclear" or "constitutional option," and the threat
>>>itself was sufficient to break the filibuster.
>
>>I've atually witnessed the procedure, multiple times. :)
>
>In the U.S. Senate?
State legislature. 1960's and 70's.
You get more frequent procedural shenanigans at that level. <wry grin>
In it's _simplest_ form, a 'call for the question' leads to a vote on
whether or not to end debate and move to an immediate vote on the underlying
issue.
_Any_ other procedural contortion on top of the 'call for the question', leads
to =another= vote before conditionally proceeding to the above-mentioned vote
preceding the vote on the underlying matter.
Thus, any time somebody introduces one of those contortions, there must be a
minimum of _two_ votes prior to the 'immediate vote' on the actual underlying
issue.
Barry Gold
[Discussion of ways to set the rules so Congress can (attempt to)
prevent future Congresses from repealing the healthcare system
snipped.]
Seth <se...@panix.com> wrote:
>Still beatable by 51%:
[Sequence ending with a move to overrule the chair]
>The vote to overrule the chair gets a simple majority. The decision
>of the chair is overruled, and the motion is taken up and passes. An
>objection that it only passed by 53% when it required 90% is again
>upheld by the chair, and overruled by a simple majority.
Well, each house could also change its rules so that a vote to
overrule requires a supermajority. But at some point it gets to be
ridiculous.
A couple of side notes:
1. Robert's Rules of Order explicitly states that any motion that has
the effect of shutting off debate shall require the same (super)-
majority as an explicit motion to close debate (e.g., "The Previous
Motion"). Of course, Congress does not use Robert's. But in a body
governed by Robert's, the chair should simply rule a motion to appeal
his ruling out of order -- as an attempted runaround the rule on
shutting off debate.(*)
2. I'm not sure what the long-term effect of the "nuclear option"
threat will be. There are several ways this could work out:
a) Now that we have a Democratic President and majority in both
houses, the Demos might use "nuclear" (or threaten to), giving the
Repubs a taste of their own medicine. This might or might not
result in another change in the Senate's rules of order.
b) Things may settle back to the old system, where a simple
"gentleman's agreement" allows 41 Senators to block any given bill
or nomination.
c) The minority party may take it one step further.
Majority party: (initiates the Nuclear option)
Minority party: all but one leave the floor, and head for
various locations outside the Capitol building.
Majority part; (call for a vote)
Remaining minority member: Mr. President, I doubt the presence
of a quorum.
VP or Pres. Pro Tem: A Quorum Call is issued. The Sergeant at Arms
will bring the absent members to the floor.
Whereupon the SaR goes out looking for the absent members. If
only a few of the Majority party's members are out in their
districts or on vacation, the minority party could bring the
Senate below the quorum requirement. This could take a while
(Absent members are typically "paired" with other members and
counted for quorum purposes, but that arrangement could be
broken at any time.)
(*) Thus, which motions require a supermajority is a function of how
those motions are typically used. When a motion "To lay on the table"
or "to postpone to a definite time" are really used for that purpose
(with the intention that the main motion will be considered later),
they require only a simple majority. Where they are equivalent to "To
postpone indefinitely" or "To prevent consideration", they require the
same supermajority.
The US Senate is weird that way: a vote to shut off debate and allow
the main motion (bill) to proceed requires Cloture (60%). But the
motion "to table" (which effectively kills the main motion) requires
only a simple majority. Note that the HR is consistent: both "to
table" and "to limit debate" require only a simple majority.
Cy Pres
wrote:
>The US Senate is weird that way: a vote to shut off debate and allow
>the main motion (bill) to proceed requires Cloture (60%). But the
>motion "to table" (which effectively kills the main motion) requires
>only a simple majority. Note that the HR is consistent: both "to
>table" and "to limit debate" require only a simple majority.
The Senate can actually do anything by majority. It is only bound by
the constitutional requirements of Article I in how it does business.
There is even some debate as to whether it is effective for the Senate
Rules to bind future sessions of the Senate unless amended, since some
believe the Senate to be a continuous body, while others (with I
believe more merit) consider each Senate to be a separate entity
entitled to make its own rules without regard for prior Senates.