Thursday, March 4, 2010

Oh No, Majority Rule!

For an example of the rhetorical lengths to which some Senators will go, check out Senator Orrin Hatch's op-ed against the use of "reconciliation" to pass the health care bill. Reconciliation is a technical procedure under which certain kinds of legislation are allowed to pass the Senate with a mere 51 votes -- a majority, in other words. Hatch claims that although this process is attractive because of its limitations on debate, "the Constitution intends the opposite process" -- apparently, one with unlimited debate.

What nonsense. The Constitution doesn't specify procedural rules for either house of Congress; it just provides that "Each House may determine the Rules of its Proceedings." (Art. I, sec. 5) Certainly the Constitution doesn't provide the rule that a minority of either house can prevent that house from taking action. That absurdity results from the Senate's ill-conceived Rule XXII.

The basic assumption of the Constitution, not expressly stated but inherent in the "common Parliamentary law," is that a majority of either house can pass any bill. Hatch is utterly wrong to state that the Constitution "intends" any other process.

And by the way, that's before we even get to the fact that a 60-member supermajority did pass the Senate health care bill in the last session. Apparently the plan is for the House to pass that bill, and then for reconciliation to be used only to modify the plan with purely fiscal details. So while it may be true that the Senate's rules wouldn't permit reconciliation to be used for the whole health care plan, that's not what it's going to be used for.

And in any event, it would be perfectly, 100% constitutional for 51 Senators to vote the entire health care plan through the Senate, if only the Senate's silly rules didn't stand in the way. The Constitution creates enough obstacles to federal legislation, but it didn't create the filibuster rule.


Peter said...


Were these rules equally silly back when Democrats invoked them to prevent the passage of Republican legislation with which they disagreed?

I recall Democrats feigning outrage when Republicans talked about employing the so-called "nuclear option." Remember, that?

Jon Siegel said...

Were the filibuster rules equally silly when the Democrats invoked them? Absolutely yes! Both parties are guilty here.

IMO, the Republicans are guiltier than the Democrats. What the Democrats do sometimes, the Republicans make routine. I don't think the Democrats filibustered basically everything, as the Republicans are doing now.

But yes, both parties are guilty, and I think the filibuster rule is a bad idea that I would change regardless of which party is in power. Let the majority enact its legislation, and then if people don't like it, they can vote for someone else.