Monday, May 16, 2005

The death of law and rules

One under-appreciated aspect of the ongoing "nuclear option" controversy in the U.S. Senate is what it tells us about the current health of the idea, predominant in U.S. political culture for the last couple of centuries, that laws and rules should be followed in an honest way. Apparently very few on the right believe in this idea any more (despite all the blather about "strict constructionist" judges), and without it democracy and the rule of law are in great danger.
Whatever the merits of filibusters - and certainly both sides are wildly opportunistic on this question - it is unambiguously the case that the "nuclear option" gambit is unlawful, albeit that there is no enforcement mechanism to stop it if it gets the 50 votes needed to let Cheney settle it.
The basic underlying point here is that the Senate governs itself by rules that cannot be changed without 60 or 67 votes. But interpretation of the existing rules requires only a majority vote. This is a sensible and workable way to run things. Both sides may want some measure of minority protection since they know they will occasionally be in the minority. (Call it risk aversion.) If everything required 60+ votes, then only a super-majority could ever do anything. But if everything required only 51 votes, there would be no minority protection.
So the existing distinction is a reasonable and sensible way to carve things up. But it requires some modicum of good faith behavior in interpreting what the current rules say. Inevitably there are ambiguities about whether a given motion is plausible rule interpretation or rule change, but there are also very clear cases on one side of the line or the other.
Ruling filibusters of judicial nominations improper under the current rules is unambiguously a rule change, not rule interpretation. And the argument that the existing rule is unconstitutional, because the Senate is supposed to advise & consent on nominations is so ludicrous, given the Senate's leeway to decide its internal rules that determine how it decides whether to consent, that even the National Review and Wall Street Journal (I think both, though I'm not 100% sure) have admitted as much.
Acting unlawfully, and in bad faith given the rules, used to be frowned at, but no more. Not just sleazoid politicians but conservative megaphones such as the NR & WSJ take the view that this just doesn't matter. All that matters is getting the results they want, winning the showdown, etc.
This is how Saddam Hussein used to think about law, and no doubt still does.
And of course it is no isolated instance. Think of my colleague in law teaching, John Yoo at Berkeley, treating the international anti-torture rules as merely so many loopholes to be skated through, and then proclaiming that the 2004 election had completely settled the issue. Or think more generally about the Bush Administration/neocon view that in the international realm laws and rules merely constrain the US, which can do whatever it likes since it supposedly has enough power. It never occurs to them that laws and rules can constrain others, too. But the domestic manifestations of this attitude are more troubling if you are an American and thus subject to what they do domestically.
These are not your grandfather's conservatives. Edmund Burke would be physically ill if he saw these people in action. And the question of where it stops is pretty clear - it doesn't, other than among the libertarian conservative wing that understandably (and thank goodness) is out of sympathy with a lot of what this Administration does.
Suppose a right-wing President used a Reichstag fire-type pretext to declare martial law and suspend elections, constitutional rights, etc. What portion of the conservative commentariat, or of the Republican membership in Congress (leaving aside about 5 or 6 Senators, and about 2 members of the House) would object? Is there any possible ground on which they would even consider objecting?

46 comments:

Merrill Bender said...

I would be interested in your thoughts on the premise that the Cloture Rule is not only Un-Democratic but Unconstitutional.

I wrote: "Senate Filibuster becomes House of Lords Tyranny" http://www.theconservativevoice.com/modules/news/article.php?storyid=5587

I also wrote at RedState:

The audacity to think that in a Democracy simple things can be held hostage by a minority in the Senate.

DEMOCRACY IS PREDICATED ON A MAJORITY VOTE OF THE PEOPLE OR ITS REPRESENTATIVES.


Any other Legislative body that uses proper Robert's Rules of order Must laugh at the Greatest Democracy in the world being held up by outdated and undemocratic Rule.
The Senate feeds the flame of world opinion with our aristocratic Senate Rules.

Why does anyone here think a rule set by the Senate has the right to thwart the vote of the people in a Democracy?

You Can't do this in County government; You can't do this in City or Town Government; you can't even do this on a School Board but how is it we allow the Senate to have extra ordinary powers not given to them in the Constitution.

In any other Democratic institution, the Charter or Constitution is amended to have any item require more than a majority vote.

There are only ten items( some say 7)in our US Constitution that call for more than a majority vote.

If the Senate wants a 60 vote rule than amend the Constitution but you can not create a rule that in its application denies fair votes of properly presented business to floor of the US Senate.

Protection of the minority is covered 2 ways in the constitution and The Cloture Vote is not one of them nor intended by the founders.

The Minority to be protected is not a minority within the Senate but the Minority of people represented by a Senator from a smaller State versus the larger number of people a Senator represents from a larger State. Two Senators from each State balances out the proportional representation of the House of Representatives. This is the minority protection intended by the Founders not the added rules that have elevated the Senate to a Tyranny over the House where a super majority is required to have House Legislation sent up to the Senate voted on. The check and balance over Legislation sent from the People's representatives is 100.

"Tyranny by the majority" is a reference to the arguemt for the Bill of Rights and has nothing to do with the Un-Democratic Cloture rule in the Senate.



Any Lawyers out there want to sue on my behalf?

Pick any legislation which was not properly allowed to reach the floor due to a 60 vote requirement( Cloture) and I believe I could argue my rights for fair representation and consideration (majority vote up or down) of Legislation that would remedy my situation(?) was not given a fair Democratic vote. It was not Constitutionally considered by the Senate and therefore I was harmed and I seek remedy by the US Supreme Court On the Constitutionality of the Cloture rule denying my Due process and fair democratic consideration of Legislation properly proposed by my Representatives in the House and Unconstitutionally snuffed out by Senate Rules Thru an additional power not granted to them by Our Founders or by Amendment.


Your Thoughts would be appreciated.

Merrill Bender

Merrill Bender is a free-lance writer on tax reform and social security reform (and now Senate reform) for more articles visit his blog site - Tax reform “Fair To All” http://fairtaxreform.blogspot.com

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