Senator Reid put up a list of the Senate rules the Republicans wanted to break to get their way on judicial nominees.
Senate Rules and Precedents That Would be Broken Through Exercise of the Nuclear Option
Friday, May 20, 2005
http://reid.senate.gov/record2.cfm?id=238044
Violation # 1. Rule V: The Senate must follow its Rules to amend its Rules. Paragraph 2 of Rule V states expressly that “Rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these Rules.” (emphasis added). The proposed nuclear option is a deliberate end-run around the Senate’s regular process for amending its own Rules.
Violation # 2. Rule V: Suspending the Rules without amending them. The Senate Rules provide expressly for the sole mechanism to suspend the Rules without amending them. Under Rule V, paragraph 1, the Senate may only suspend its Rules either by unanimous consent or by adopting a motion to suspend the Rules. Adoption of such a motion requires a 2/3 vote of Senators present. The nuclear option, by suspending the Rules without changing the text through a simple majority vote, violates the 2/3 vote requirement.
Violation # 3. Rule XXII: Violating the process for changing the Senate’s Rules. Paragraph 2 of Rule XXII establishes the requirements for ending debate on a proposed change to the Senate’s Rules. Under Rule XXII, a cloture petition signed by sixteen Senators must first be submitted to the Senate. The vote to invoke cloture (end debate) on amendment to the Rules cannot be held until 2 days after the cloture petition is filed, and the rule provides that 2/3 of Senators present and voting must consent to end debate.
Violation #4. Failing to submit a constitutional Point of order to the Senate. Proponents of the nuclear option purport to justify their unprecedented approach by invoking the U.S. Constitution – to the point of trying to rename the nuclear option the “constitutional option.” Per Senate precedent, when a point of order with a constitutional basis is raised, the Chair does not rule but instead submits it directly to the full Senate. Such a point of order is debatable, requiring 60 votes to end debate and bring it to a vote.
Violation # 5. Rule XXII: Ending debate on a nomination. The text of Paragraph 2 of Rule XXII expressly requires 60 Senators (3/5s of Senators duly chosen and sworn) to vote to end debate on “any measure, motion, other matter pending before the Senate,” including a judicial nomination. If the nuclear option is successful, and for the first time in our history Senators’ right to debate is ended by simple majority vote, this will constitute an express violation of Rule XXII’s 60 vote requirement. In essence, Rule XXII would be changed, but not in a manner provided by the Rules of the Senate.
Violation # 6. Overriding the Senate’s Parliamentarian. The Senate Parliamentarian is the officer charged with keeping the precedents of the Senate and advising the presiding officer of the Rules and precedents of the Senate if a point of order is raised from the floor. For the nuclear option to succeed, the presiding officer, most likely Vice President Cheney in his role as President of the Senate, would have to ignore the advice of the Parliamentarian in ruling on a point of order. According to CRS in March 28 report, such an action would “constitute an extraordinary proceeding involving peremptory departure from the established system of Senate procedure.”
Senate Rules and Precedents That Would be Broken Through Exercise of the Nuclear Option
Friday, May 20, 2005
http://reid.senate.gov/record2.cfm?id=238044
Violation # 1. Rule V: The Senate must follow its Rules to amend its Rules. Paragraph 2 of Rule V states expressly that “Rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these Rules.” (emphasis added). The proposed nuclear option is a deliberate end-run around the Senate’s regular process for amending its own Rules.
Violation # 2. Rule V: Suspending the Rules without amending them. The Senate Rules provide expressly for the sole mechanism to suspend the Rules without amending them. Under Rule V, paragraph 1, the Senate may only suspend its Rules either by unanimous consent or by adopting a motion to suspend the Rules. Adoption of such a motion requires a 2/3 vote of Senators present. The nuclear option, by suspending the Rules without changing the text through a simple majority vote, violates the 2/3 vote requirement.
Violation # 3. Rule XXII: Violating the process for changing the Senate’s Rules. Paragraph 2 of Rule XXII establishes the requirements for ending debate on a proposed change to the Senate’s Rules. Under Rule XXII, a cloture petition signed by sixteen Senators must first be submitted to the Senate. The vote to invoke cloture (end debate) on amendment to the Rules cannot be held until 2 days after the cloture petition is filed, and the rule provides that 2/3 of Senators present and voting must consent to end debate.
Violation #4. Failing to submit a constitutional Point of order to the Senate. Proponents of the nuclear option purport to justify their unprecedented approach by invoking the U.S. Constitution – to the point of trying to rename the nuclear option the “constitutional option.” Per Senate precedent, when a point of order with a constitutional basis is raised, the Chair does not rule but instead submits it directly to the full Senate. Such a point of order is debatable, requiring 60 votes to end debate and bring it to a vote.
Violation # 5. Rule XXII: Ending debate on a nomination. The text of Paragraph 2 of Rule XXII expressly requires 60 Senators (3/5s of Senators duly chosen and sworn) to vote to end debate on “any measure, motion, other matter pending before the Senate,” including a judicial nomination. If the nuclear option is successful, and for the first time in our history Senators’ right to debate is ended by simple majority vote, this will constitute an express violation of Rule XXII’s 60 vote requirement. In essence, Rule XXII would be changed, but not in a manner provided by the Rules of the Senate.
Violation # 6. Overriding the Senate’s Parliamentarian. The Senate Parliamentarian is the officer charged with keeping the precedents of the Senate and advising the presiding officer of the Rules and precedents of the Senate if a point of order is raised from the floor. For the nuclear option to succeed, the presiding officer, most likely Vice President Cheney in his role as President of the Senate, would have to ignore the advice of the Parliamentarian in ruling on a point of order. According to CRS in March 28 report, such an action would “constitute an extraordinary proceeding involving peremptory departure from the established system of Senate procedure.”
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