Rescuing the Constitutional Framework from the Senate

(11 am. – promoted by ek hornbeck)

Rachel Maddow tells us that “filibuster” is a boring word, even if it originally meant private adventurers going off risking life and limb trying to make themselves President of some Central American country.

So I will use the other common English language phrase for it, “Talking a Bill to Death”.

The ability to Talk a Bill to Death was introduced by mistake when Aaron Burr in 1806 argued for removal of the motion to “move the previous question”. This is a motion that can be used to postpone debate, when a measure does not yet have a majority, and can of course also be used to bring a measure to a vote, if it has a majority. Aaron Burr appealed to the fact that it had only passed once in the previous four years – but then again, the Senate did not at that time have a filibuster tradition.

So, restoration of the original rule is one fix to the filibuster problem. However, that is not what I am focusing on today. Rather, I am focusing on the Unconstitutionality of filibustering one type of bill, which was the real flaw in Aaron Burr’s Blunder.

Article 1, Section 7, Paragraph 1 is quite short, and quite clear in its intent:

All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other Bills.

The intent, quite clearly, is to vest in the House of Representative the power of the purse. After all, not having a say in that power of the purse held by the House of Commons and which, in their eyes, all Englishman had inherited as a result of the resolution of the English Civil War … that was fundamental to the protest of the Gentry of the North American Colonies against “taxation without representation”.

Being simple, the point based on Article 1, Section 7, Paragraph 1 is straightforward. The Constitution enumerates not only what the Senate may do with respect to Revenue Bills, but also how it may do it. The Senate may propose or concur with amendments.

There is no authority there for Talking a Revenue Bill to Death. There is authority there for a wily politician to move an amendment that can gain support of a majority of Senators that results in a majority of Senators voting against it, or that will not be accepted by a majority of Representatives. There is authority there for all manner of mischief. But there is no authority there for Talking a Revenue Bill to Death.

Revenue Bills are Important: The Framers Knew What They Were On About

So far, all abstract and theoretical … but:

• Cap and Trade: revenue bill
• Tax on health insurance corporation profits to fund health insurance subsidies for low-income households: revenue bill
• Windfall profits tax on Financial Firms who were in receipt of Bail-Out funds: revenue bill
• Restoration of Reagan-era high-income capital gains tax rate to finance long term infrastructure spending: revenue bill
• Requirement on imports from countries without carbon emissions controls equal to or better than those in the US to purchase CO2 emissions permits: revenue bill
• Import tax on imported petroleum and petroleum products to finance electrification and provision of 100mph freight paths for 30,000+ miles of STRACNET: Revenue Bill

Entirely removing Revenue Bills from the filibuster is something that would open the door for progressives, whether inside or outside of the Democratic party, to fight for substantial change, and eliminate the “but it won’t get 60 votes in the Senate” excuse.

Hell, the threat of opening up the sluice gates and only on bills that raise revenue is itself a club to threaten both the vicious crazy wing of the Republican party and the vicious corporate wing.

Its not a Nuclear Option if there is no Threat of a Big Explosion

The proposal to change the rules of the Senate to effectively limit debate by progressively reduce the majority required for cloture is sometimes called a “nuclear option”, but that’s silly. Since it requires either a 2/3 vote to be passed as a rule change or 60% on a cloture vote to be passed into law, it cannot be exploded.

There is an argument that at the start of a new Congress, the Senate rules can be changed by simple majority. That is an argument that the Republicans floated when they had a simple majority, but its never been put to the test.

However, for Exploding the Senate practice of Talking a Revenue Bill to Death, only 50 Senators are required.

A Senator simply moves, after a successful filibuster of a revenue bill, that the practice is unconstitutional and that the measure must be scheduled for a vote. The President of the Senate, Joe Biden, agrees with the motion, citing Article 1, Section 7, Paragraph 1 of the Constitution as the basis for his agreement. Obviously someone will appeal the ruling of the chair. A second Senator must then move to table the appeal.

And there is the 50 votes required: if 50 Senators vote to table the appeal, plus the President if its a tie, the ruling of the chair is upheld.

KABOOM!

If it was me, I’d just blow it up now. After all, unlike an actual nuclear option, exploding it will not actually turn the Capital into a radioactive hellhole – at least, no more than it is already.

However, even for those who might hesitate to blow it up, it makes a mighty fine threat to deploy against Republican delaying tactics. After all, it just takes two pissed off Senators and one pissed off Vice President to force the issue to a simple majority vote, and even if the risk of it getting 50 votes is seen as less than even odds … there is some risk of the ruling standing … while the cost to the power of their particular corporate ownership is quite high. The petroleum companies in particular, who are by no means well loved throughout the rest of the corporate establishment, could well be plundered quite ruthlessly by Democrats determined to protect their corporate owners from an excess of democracy by diverting focus to the corporate ownership of the Republican party.