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Unintended Consequences

 

Unintended Consequences

 

Much has been made of the political fallout of failing to reach cloture on the nomination of Debo Adegbile to be the Assistant Attorney General for Civil Rights. It also revealed two unanticipated, but significant, problems with the November rules change forced on the Senate by Majority Leader Harry Reid. The procedural flaws that it revealed are even more interesting than the political firestorm.

 

The first flaw is that by changing the number of votes required for cloture for most nominations (excepting Supreme Court Appointments) from “three-fifths of the Senators duly chosen and sworn” to a simple majority of Senators present and voting, it is now possible for a mere 26 senators to obtain cloture and confirm most executive branch appointments. It could take barely more than one-quarter of the senators to force through a nomination. This is something never imagined by the founding fathers.

 

The second flaw is more pernicious than the first. The popular press focused on the fact that Senator Reid had requested that the Vice President be in attendance to break a tie vote, if that occurred. The first tie vote anticipated by Senator Reid was on the vote for cloture on the nomination. In the whole history of the United States Senate, it has never been contemplated that the Vice President, who is not a member of the Senate, could be allowed to vote on whether duly chosen senators wanted to end debate on any issue or nomination.

 

Heretofore that was never a vote in which the Vice President would conceivably be involved because there is no tie to break if cloture takes a super-majority. Because of the change in senate precedent engineered by Senator Reid, now it is an issue which needs to be addressed.

 

The constitution states in Article I, Section 3 that “the Senate of the United States shall be composed of two Senators from each State…” The Vice President is not a senator. The constitution further directs that “the Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.” From its very first days, the Senate worked by unanimous consent. Votes were taken only when all senators had been given their full right to debate and offer amendments. The cloture rule was adopted in the early 20th century. When adopted, it recognized the history of the senate in protecting minority rights. Article 1, Section 5 states that “Each House may determine the Rules of its Proceedings…” The rules of the Senate do not allow the Vice President to speak in debate.

 

Senator Reid planned to have the Vice President of the United States vote on the matter of cloture last week. That would be a further change in the rules that would allow the Vice President, who is not a member of the Senate, to determine when debate is ended thus limiting the rights of duly elected senators. This would give a member of the executive branch of the government the right to end debate in the United States Senate.

 

I don’t think Senator Reid thought about that last November when he broke the rules to change the rules, and I know the founding fathers never contemplated that the executive branch of the government would have that kind of power over the legislative branch of the government.

 

 

 

 

 

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