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November 28, 2012 12:17 PM Reform: Myth of Opening Day

By Jonathan Bernstein

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.

[Cross-posted at A plain blog about politics]

Jonathan Bernstein is a political scientist who writes about American politics, especially the presidency, Congress, parties, and elections.
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