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January 15, 2003

Do Filibuster Rules Survive from last Senate?

The Dems are using their filibuster power to block transition to GOP chairing of all committees and a cut in Dem-controlled budgets on each committee.

But if the organizational rules for the new Senate term have not been approved, does the filibuster power even exist for the Dems? The filibuster is not in the Constitution and it's not legislation, but is merely part of the Senate's "Rules of its Procedings" which each House may determine for itself under Article I, Section 5(2) of the Constitution.

But do such rules, approved for a previous Senate by its members, have any force on a subsequent elected Senate? Theoretically, a new Senate term could abolish the filibuster by majority vote by refusing to approve those old rules, and then approve a whole new set of Rules by majority vote.

What the status of the Rules are, now that the Senate has actually cast some votes under some preliminary operating rules, is an open question, but during the 1950s, when abolishing the filibuster (a harder version then where a mere one-third of legislators could block all legislation) was the prime goal of liberals, this became an active issue.

In 1953, 1955, and 1957, as detailed in Robert Caro's MASTER OF THE SENATE, the liberal Senators tried to introduce resolutions the first day of the new Senates to abolish the filibuster. In 1957, they had even negotiated a deal with Vice President Nixon, who would be presiding, to make a parliamentary ruling that the Senate was not a "continuing body" from the previous session and thus had no ongoing rules that could restrain majority vote, until such time as new rules declaring as such were approved. However, Johnson played various parliamentary games to get those motions tabled, so the issue was never directly addressed.

But it does seem that the filibuster is an artifact of majority consensus and could, if the Senate wanted to, be abolished by majority vote at the beginning of the session.

Posted by Nathan at January 15, 2003 07:44 AM

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