Tuesday, November 27, 2012

Reform: Myth of Opening Day

Excellent news about Senate reform, at least for those favoring reform, in a Greg Sargent post today:
Dems may not change the rules on the first day of the session. Rather, the aide says, they are likely to do a rules change via what’s known as overruling the chair. Democrats ask the chair for a ruling on whether it is within the rules to, say, filibuster the motion to proceed. When the chair says Yes, Dems overrule it by a simple majority vote. And so on with the other provisions.
Why is that good news?

Because it means that the Senate reformers aren't falling for, and continuing to push, the Myth of Opening Day. Yes, one of the ways that a simple majority of Senators could possibly change the rules, notwithstanding that by those same rules it takes 67 votes, is to invent a loophole saying that you can do it by a simple majority on the first day of the Senate. And there's nothing wrong with that method, in my view. But there are several other methods, including the one outlined in Greg's post. The bottom line, as Greg Koger says, is that a determined majority can probably find a way to get what they want.

My problem isn't with using the first day of the Congress; it's with buying into the Myth of Opening Day, the idea that it's the only option. Because then if you don't do it -- or if you want another bite at the apple -- you don't have a backup option.

And the one thing that reformers shouldn't be doing is closing off any options. What they're trying to do is hard. Even for outsiders who don't have to worry about wrangling votes, finding a set of rules which would end the 60 vote Senate without turning the Senate into the House -- that is, into a chamber where all that really matters is the majority party structure.

It makes sense, of course, to set the chamber rules at the beginning of a Congress, at least normally. But the whole problem reformers are dealing with -- especially moderate reformers who want to preserve individual Senator influence -- is that Republicans aren't likely to respect norms, and are instead likely to exploit whatever loopholes they can find. Which is their right -- but in return, Democrats really have to leave all of their own loopholes open.

Including those that allow them to go back and get it right if the first try doesn't work.


  1. I don't think they're actually retiring the myth of opening day. This is not in Greg's piece, but what I think they're going to do is what Reid did in 2011: extend the first Legislative Day of the new session over nearly the entire month. Without adjourning the day, they can do all the arm-twisting and horse trading they need to do within the Dem caucus, if any (which they failed at 2 years ago), while also working on a perhaps more modest bipartisan agreement for 67 votes, which I'm sure Reid would prefer. But I don't think he'll give an inch on eliminating the filibuster on the motion to proceed AND on the three conference-related motions.

    Here's the account from Jan 2011:


    1. The procedure they're describing sounds to me like one that isn't tied to the first day. To be sure: as I said above, it makes sense to set the rules at the beginning of the Congress....

      If I had to wild guess, I'd guess that they will cut a deal that includes some rules changes and some handshake agreement. But I could easily see any of five or six ways this plays out.

  2. This is very good news.

    It seems like the Senate isn't really bound by rules. It's the norms that matter. The rules inform the norms. But the agreements seem much more important that the actual rules.

    The important thing is for the majority to establish the norm that a minority can't completely block legislative action.

    But first they need to give themselves permission to do that.


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