Dr. Jillian T. Weiss

Senate Rule V: Suspension of the Filibuster Rule Only Takes 51

Filed By Dr. Jillian T. Weiss | February 17, 2010 5:00 PM | comments

Filed in: Politics
Tags: filibuster reform, Reid, rule 5, rule v, suspension of the rules

The momentum to amend the filibuster to make it less susceptible to abuse is growing and growing. The cause has now been taken up by more non-partisan media outlets, includingUSA Today, CBS Evening News,

That's good for the LGBT agenda, because the minority is holding every bill hostage by threatening to filibuster everything. That would require 60 votes, which we don't have right now. A bedrock Constitutional concept -- majority rule -- has been abolished, and we need to fix it -- now.

But then comes the common wisdom -- amending the Senate filibuster rule requires a two-thirds majority -- 67 votes, which we certainly don't have.

But this common wisdom appears to be wrong. (Click on the picture above for a lesson on common wisdom.) We don't need to start by "amending" Senate Rule XXII -- we need to start by "suspending" it. And according to Senate Rule V, suspending a rule only requires a majority vote.

Now, I'm not an expert in Senate parliamentary procedure. Possibly there is some arcane reason why this can't happen. But I've done a lot of research on this point, and come up with no explanation. Given the imperative of getting the Senate logjam moving -- we need to start re-examining common wisdom.

Meanwhile, Harry Reid and all sorts of other people, including Rachel Maddow and a number of guest on her show -- have made the assumption that ending the filibuster would require 67 votes. I question that, and I challenge someone to explain why my suggestion won't work.

Here's Senate Rule V:


1. No motion to suspend, modify, or amend any rule, or any part thereof, shall be in order, except on one day's notice in writing, specifying precisely the rule or part proposed to be suspended, modified, or amended, and the purpose thereof. Any rule may be suspended without notice by the unanimous consent of the Senate, except as otherwise provided by the rules.

2. The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.

It says nothing here -- or elsewhere, as far as I can tell -- about requiring anything more than a majority vote to suspend a rule. What rule would need to be suspended in order to pass Senator Harkin's Senate Resolution 416 amending the filibuster procedure?

That would be Rule XXII, which contains the filibuster procedure itself. Under Rule XXII, Senator Harkin's Resolution could be subjected to a filibuster by Republicans. It would then take 67 votes for cloture, to break the filibuster, 7 more than usual. That's because Rule XXII provides that if a bill involves an amendment to the Senate Rules, the filibuster can only be stopped with a two-thirds majority, which is 67 votes.

But here comes the magic of Rule V. Under Rule V, Senate Rule XXII could itself be suspended. Then, Senator Harkin's Bill could be considered without the 67-vote requirement to stop the filibuster, and the filibuster on his Resolution could be broken with a simple majority.

But will this work? I don't know -- but I would like to know why not. It's less convoluted than some of the complicated suggestions that I've heard elsewhere.

Why hasn't this been done before? I don't know. Who knows what those Senators have been doing all these years?

If there's some obscure parliamentary precedent that governs this -- why can't that precedent be overturned? Precedents are overturned all the time.

At the very least, I'd like to hear some of the commentators on this issue at least address why suspension under Senate Rule V is or is not possible.

Let's all put our heads together and get the Senate moving again.

For more legal information about the 51 vote requirements, see my last post on the subject.

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It's a little like a cat chasing its tail, but any "Motion to Suspend the Rules" would be filibustered, requiring those 60 votes.

Okay, good point, but at least then it's not 67 votes.

Dr. Jillian T. Weiss said:
A bedrock Constitutional concept -- majority rule -- has been abolished, and we need to fix it -- now.

With all due respect Doctor, WTF Constitution are you reading? Such a statement leads me to believe you have never even read the document nor the notes provided by Mr. Madison regarding the convention.

Majority rule is a "bedrock Constitutional Concept"? It makes my head hurt to hear such specious assertions laid carelessly as fact.

Prior to the nation being subjugated by the Central Bankers with their bags of Fiat money in 1913, this nation was constructed as a Republic. As such, the very Cornerstone of a Republic is to prevent majority rule from trampling upon minority rights or minority view as often times the Majority cares little for the preservation of liberty in their Black Friday like rush to achieve their end.

Yes let us have a nation where 51% of the people can ask for a particular agenda from government.

Can you phathom what this country would look like had after 9/11 President Bush and his fellow warmongers could have had such a legislative avenue of needing a simple Majority?

It is entirely possible that most Muslim Americans would be reliving the stain of Japanese style internment should that have been the case.

It always amazes me how myopic and impatient people groups become when it is "their" favor from government working its way through Congress.

The Senate and specifically to this point the Filibuster were purposely designed to slow down the legislative process.

While it is now true, individuals such as yourself, perhaps even with good intention fall into the trap of lusting for Democracy, the transfer of the Republic to populist Democracy in 1913 is exactly what has enabled this government to run amok, launch endless aggressive Banker financed wars, bribe nations to torture, et cetera.

Perhaps you would do yourself a favor and actually read the Founding Documents which amass the ORGANIC LAWS of the United States so you may prevent yourself from writing any further falsehoods which in my view seriously call into question your ability to speak cogently upon the mechanics of goverment.

Further, you may also wish to aquaint yourself with John Locke's "Two Treatise of Goverment" or Mr. Paine's view on Majority Rule in "Common Sense".

Finally, James Madison who is known as the Father of the Constitution had the following to say about "Democracy":

Democracy is the most vile form of government... democracies have ever
been spectacles of turbulence and contention: have ever been found
incompatible with personal security or the rights of property: and have in general been as short in their lives as they have been violent
in their deaths.

Hardly a thumbs up from the man who drafted the bulk of the final Constitution towards "Democracy" or majority rule.

I meant a majority of the Senators, not direct democracy.

It matters not what you meant, as "Majority Rule" was never a "Bedrock" Constitutional concept.

The Constitution was purposely constructed with numerous checks and balances, most of which are now gone, to prevent the reactionary machinations of "Majority Rule".

Please try to understand the Senate was never to be designed nor run like the House for a reason.

Washington D.C. is not the Kingdom from which all power emanates, nor should we continue on with any misguided notion which speaks to the contrary.

The Senate was the States purview and served as a check against reactionary populism or an Executive Branch steamrolling through their own personal agenda.

While advocates of "majority rule" who consider themselves "progressive" may hate the notion of the states actually having a say in matters which affect an entire nation, of which they are a part, it was the States who created the Federal government in the first place.

Thus, if there is to be tyranny, it is better off left closest to home, ergo a state, county. or other municipality. Which consequently makes it far easier to correct than a blanket mandate issued by the Central Authority i.e. the PATRIOT Act or MILITARY COMMISSIONS Act of 2010.

Alli, I won't deny that you make some good points. We do need a countermajoritarian force in the country. I think we just disagree on what that is.

I think that the main counter-majoritarian force is the Constitution. It is also true, as you say, that the construction of the Senate with 2 members per state is meant to check the US majority. However, the addition of a supermajority vote requirement not found in the Constitution adds too much of a check, and makes it impossible to do business. By all means, let the minority have a voice, and let the states have enough power to overcome their destruction by the majority.

But in the case, for example, of the Employment Non-Discrimination Act that would prohibit discrimination based on sexual orientation and gender identity, there are 55 likely yes votes. That means the states are mostly in favor of it. Why should it be held up?

Madison also said:

"Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives."

Keep "arming" Jillian.

Way to take a quote out of context.

Madison never believed in Direct Democracy or Majority Rule and for you to attempt to somehow use that quote to buttress the Doctor's statement results in exposing a reliance on Logical Fallacy and lazy intellect on your part.

I'm guessing they won't do it because they think the Senate is their own little country club where their obscure rules that prevent progress are more important than serving their constituents or helping Americans out. It'd be just so divisive and partisan to start passing things based on majority rule!

Yes by all means let us wholly switch the nation to govern from Majority Rule

So if a Majority of Congress wishes to suspend the Natural Right of Habeas Corpus, then that is okay?

If a Majority wish to take your home, then is that okay?

How about letting Majority Rule decide if the government can Assassinate Americans it deems "Enemies of the State", an idea which is currently receiving a hearing on the Hill in the wake of the Christmas Day Bombing, AND the CIA deems not only plausible but ESSENTIAL and which the Obama Administration Supports! - wtf?

And let us do away with cumbersome due process whereby it requires a Unanimous Finding of Guilt or Innocence for juries and use instead the Military Commissions model of only needing a simple Majority to issue a finding of Guilt and sentence an individual to death.

There is no cherry picking of where to allow majority rule, here, but not there, as Government left to be the final arbitor of its own power will inevitably permeate the cancer like principle of majority rule to all its actions.

Shut up. You made your point. Jillian is way ahead of you in seeking LGBT equality. You may be way ahead of her with Madison-knowledge. I choose Jillian.