There is a right way and a wrong way to invoke the "nuclear option" to eliminate the filibuster or to limit the topics on which it may be used. There is a lawful way and a lawless way. Harry Reid and his gang did it the lawless way. The Senate majority of the incoming 115th Congress should do it the lawful way as the first order of business.
On their face, the Senate Rules allow a filibuster by requiring a vote of 60 Senators to cut off debate. Further, the Rules require a two-third vote to change this rule.
The lawless way around this is for the presiding officer to "interpret" the rule to not say what it plainly says, and upon an appeal of that ruling to the membership have a majority so lacking in integrity that they vote to affirm this ruling. That is what the Democratic majority did in 2013 to stop the filibustering of nominees for judicial and executive office, a practice they had started themselves in the previous administration when Republicans had both the White House and a Senate majority.
The right, lawful way is for the Senate at the beginning of a new Congress to declare that it is not bound by the rules adopted in a previous Congress. The Constitution vests the power to adopt rules directly in each body, and it is a basic principle of legislative process that the current Congress cannot bind future Congresses. Senator Clinton Anderson of New Mexico tried this method in the 1950s to break the anti-civil-rights filibuster, and Vice President Richard Nixon as President of the Senate backed him up, but a majority did not go along. Senator Tom Udall of New Mexico gave this more lengthy explanation on the floor of the Senate in 2010. Orrin Hatch had this article in the Stanford Law and Policy Review in 2014.
Getting rid of nominee filibusters was the right thing to do, but it should be done right. The incoming Senate should not continue with Harry Reid's lawlessness. The Senators should adopt new rules as the Constitution authorizes them to do.
The lawless way around this is for the presiding officer to "interpret" the rule to not say what it plainly says, and upon an appeal of that ruling to the membership have a majority so lacking in integrity that they vote to affirm this ruling. That is what the Democratic majority did in 2013 to stop the filibustering of nominees for judicial and executive office, a practice they had started themselves in the previous administration when Republicans had both the White House and a Senate majority.
The right, lawful way is for the Senate at the beginning of a new Congress to declare that it is not bound by the rules adopted in a previous Congress. The Constitution vests the power to adopt rules directly in each body, and it is a basic principle of legislative process that the current Congress cannot bind future Congresses. Senator Clinton Anderson of New Mexico tried this method in the 1950s to break the anti-civil-rights filibuster, and Vice President Richard Nixon as President of the Senate backed him up, but a majority did not go along. Senator Tom Udall of New Mexico gave this more lengthy explanation on the floor of the Senate in 2010. Orrin Hatch had this article in the Stanford Law and Policy Review in 2014.
Getting rid of nominee filibusters was the right thing to do, but it should be done right. The incoming Senate should not continue with Harry Reid's lawlessness. The Senators should adopt new rules as the Constitution authorizes them to do.
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