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December 22, 2009

About That Supermajority Requirement...

There has been some bleating about a provision of ReidCare which makes it so that certain parts of the act can only be changed by a supermajority vote.

How is that constitutional? It is just like the filibuster. Only 51 votes are needed to pass the amendments, but internally, the Senate is deciding that it will not consider certain business. The Supreme Court is quite clear that it won’t meddle with the internal operations of the House and Senate.

And for good reason. It's not unconstitutional because Article I, sec. 5, cl. 2 says that the Senate can set its own rules; and to set rules only requires a majority vote. Erick mentions the filibuster; you won't find that in the Constitution either.

Two other points. First, Senator DeMint may be peeved with the parliamentarian over this, but the parliamentarian is probably right. ReidCare does not overthrow the Senate Standing Rules, something that--according to the Standing Rules--requires a vote of sixty-seven senators. Rather, it makes an exception to the Standing Rules for a few specific provisions of ReidCare. Making exceptions to rules only takes a simple majority.

Second, a quick glance at the Library of Congress website and Google shows that language similar to that used here to except these provisions from the Standing Rules has been used dozens of times in the past thirty years in both the Senate and the House, including in the 109th Congress when Republicans controlled both chambers.

And before someone jumps on me for it, I'm not saying ReidCare is a good thing or that I approve of this provision, which will make it more difficult to undo the damage. I'm saying that it's not unconstitutional or all that unusual for the Senate.

UPDATE: So I kept digging. On the Constitutional issue, it's just plain facts that Article I, sec. 5, cl. 2 controls and lets the Senate modify rules with only a majority vote. So, there's simply no cause to say that these provisions make ReidCare unconstitutional. (There may be several other parts of ReidCare that are, including the mandate and the economic deprivation worked on insurers.)

So if it runs afoul of anything, it's got to be the Senate Rules.

Let's look at the two provisions that Senator DeMint specifically named as causing problems. The first limits Congressional action to modify the deathpanels:

‘‘(C) LIMITATION ON CHANGES TO THIS SUBSECTION [on deathpanels -GM].—It shall not be in order in the Senate or the House of Representatives to consider any bill, resolution, amendment, or conference report that would repeal or otherwise change this subsection.

‘‘(D) WAIVER.—This paragraph may be waived or suspended in the Senate only by the affirmative vote of three-fifths of the Members, duly chosen and sworn.

Now, on it's face this does not conflict with any Standing Rules. It's shady, but there's no rule saying Congress can't pass shady laws that tie their hands. Because DeMint seemed so upset, I checked to see if it had been done before in laws that passed the Senate with less than a two-thirds majority.

That's DeMint's objection. He says the provision works a rules change. The parliamentarian disagreed. So I looked for precedent. (I'm a lawyer, it's what I do.) It turns out this has happened before.

For example, it appeared in PL 100-119, adjusting the debt ceiling. That law passed the Senate by 54-31 vote. IOW, not two-thirds. It appeared earlier in PL 99-177, on the same topic. Again, it passed the Senate with less than two-thirds: 51-37.

Let's turn to the other objection, to this language:

“Notwithstanding rule XV of the Standing Rules of the Senate, a committee amendment described in subparagraph (A) may include matter not within the jurisdiction of the Committee on Finance if that matter is relevant to a proposal contained in the bill submitted under subsection (c)(3).”

Now this on its face conflicts with Standing Rule XV, which provides that "It shall not be in order to consider any proposed committee amendment (other than a technical, clerical, or conforming amendment) which contains any significant matter not within the jurisdiction of the committee proposing such amendment."

In other words it relaxes the Standing Rule requirement so that future amendments to these sections may go through the Finance Committee. I thought DeMint would be on firmer ground on this one. The most recent example of similar "notwithstanding the senate rules" language was in the TARP legislation last year. It passed with more than a two-thirds vote. So, point to DeMint.

But similar language ("notwithstanding any rule or precedent of the Senate, including Rule XXII of the Standing Rules of the Senate, it is in order...") also appeared in PL 101-508, a budget bill in 1990, which passed the Senate with only 54-45. Not two-thirds.

And again in 100-119, which I already mentioned with respect to the "no amendments" language and again in the modified form: "notwithstanding any rule or precedent of the Senate, including Rule 22 of the Standing Rules of the Senate, it is in order (even though a previous motion to the same effect has been disagreed to)." Again, that only passed the Senate by 54-31. Not two-thirds.

So it's not unconstitutional and it doesn't break the Senate Rules. It's been done more than once before without (as folks are now muttering) revolution. It's shameful and sleazy, sure. But it's not unprecedented.

One More Update: Erick responds here. He is wrong about there never being similar legislation restraining subsequent Congressional action. This bill prohibits Senate amendments to the deathcare provision without a two-thirds vote.

Back in 1987, PL 100-119 prohibited Senate amendments to executive rulemaking on deficits unless the figures "are mathmatically consistent." It also prohibited Senate concurrent resolutions on the budget--for all future legislation--where figures "are determined on the basis of more than one set of economic and technical assumptions." And it did it with less than a two-thirds vote.

Back in 1997, PL 105-33 prohibited--for all time--any bill, resolution, amendment, motion, or conference report that exceeds any of the discretionary spending limits of a 1985 law. The exception here was if there was a declaration of war or a joint resolution under the terms 1985 law.

In each case, the Senate restrained future action unless a condition was met. It is entirely within their authority to do so.

Not unprecedented. Horrifying, sure. And it's not that I'm saying "no big deal", as he writes. I'm saying the objection should be to the substance of the bill, not the procedural sausagemaking.

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posted by Gabriel Malor at 11:50 AM

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