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If you're getting tired of Fiscal Cliff Diving, why not try some Filibuster Reform for a change of pace.  As I pointed out in Part 1 of this diary series, there are no real "Dummies" here at Dailykos like there are on many of the crazy right wing Blogs. The title, like the ones from the book series, is simply intended to indicate that this diary series will attempt to explain Filibuster Reform in a way everyone can understand, not just professors and students of Legislative process (David Waldman being the professor and myself being one of the students).

This diary is Part 2 of a three part series on Filibuster Reform.  In  Part 1, we covered what the filibuster really is, in terms of the Senate's Rules.  Here in Part 2, I will cover how Senate rules can be established to reform the filibuster through the “Constitutional Option”.  In Part 3, I will cover some of the specific rules that are being discussed to reform the filibuster (with my opinion of each), and others I would like to see, as well as how the actual process might play out.

Even if you're not interested in delving into this diary (and the other two) now, I would urge you to bookmark it (them), since I hope to jam it (them) full of some interesting facts on Senate procedure that you might want to be able to access when this whole thing heats up in the New Year on “Day One” of the new Congress.  However, if I have managed to peak your interest somewhat, please jump /\ over the orange squiggle with me and we'll get going.

Before we get stated on the topic, I must again, as I did in Part 1, make it clear that pretty much everything I'm posting on this topic is from my figurative professor David Waldman (Kagro X).  Specifically, its my attempt at summarizing his discussions on the topic of the Filibuster from three (3) "Kagro in the Morning Shows", which you can access by downloading iTunes (FREE) and then find the list of shows by typing "Kagro in the Morning" on the podcast search feature.  The 3 shows I am referring to are November 14, 15 & 19 which are in the list.  If you have a few hours to spare to listen to these Kagro Shows, even if you just have them playing in the background while you go about your business, you will find them immensely informative.  I have found David to be, the most informed source out there when it comes to the House and Senate, and the sometimes bizarre rules they operate under.

Again, it is definitely not my intention to trigger any copyright infringement issues, but to provide the information from these shows with proper deference given.   If I make any unintentional misquotes or other factual errors, please feel free to correct me in the comments and I will post any revisions in an update.

With that out of the way, here we go.

As you can see from Part 1, it is far easier for the minority to start and maintain a filibuster under the current Senate rules, than it is for the majority to prevent or end one.  You combine these rules with a cast of Senate Republicans who, if they don't get 100% of what they want, don't give a "F*#%" if anything ever gets done, and you have the present gridlock situation.  Since appealing to this group of Republicans to voluntarily limit their use of the filibuster has already proven to be futile (their 2011 "gentleman's agreement" to limit filibuster use lasted all of 3 weeks), the only way to restore the Senate to some level of functionality is by changing the Senate Rules.

That gets us to:

1. How can we establish Senate Rules to reform the filibuster?

This leads us to Myth #1.

Myth #1: "The Senate cannot ever change its rules by a simple majority vote."

This myth will take some discussion to determine if its true or false (in fact most of the rest of this Diary), so you might want to go out and grab a cold one or attend to your bathroom needs before reading on.  Don't worry, I''ll wait.

Whistling-Whistling-Whistling-Whistling-Whistling-,etc.

Oh, you're back! Good, here we go.

Let me say at the outset that a vote on a rules change only needs a majority to pass.  So it would seem the myth is busted.  But that's just part of the story.  You see this Myth has its origins in the fact that rules changes have to originate from "Motions", and as we discussed in Part 1, almost all motions are subject to debate, including motions to change the rules, and as such are subject to a filibuster, a debate of undefined length that can only be ended by unanimous consent or a successful cloture vote under Senate Rule XXII.  To make things worse, take a look at what Rule XXII says regarding ending debate on a motion to amend the rules:

""Is it the sense of the Senate that the debate shall be brought to a close?" And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn -- except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting -- then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of."

"After no more than thirty hours of consideration of the measure, motion, or other matter on which cloture has been invoked, the Senate shall proceed, without any further debate on any question, to vote on the final disposition thereof to the exclusion of all amendments..."

So the rules say you need a 2/3s "yea" vote to end a debate on changing the rules.  However, in this case, notice it says "two-thirds of the Senators present and voting", not "duly chosen and sworn", as is the case for the lower 3/5s majority required to limit other debates.  So I suppose it is possible you could catch the minority with its pants down where they don't have over one-third of its members on the floor to block a cloture vote they knew was coming by over 24 hours notice, but not likely.

To make matters much worse, this "2/3s rule" is reinforced by Rule V which states:

"The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules."
So not only do the rules say we need a 2/3s super-majority to end a rules change debate, they also say that this rule continues from one congress to the next.

So it would seem that Myth #1 is TRUE since Rule XXII requires a 2/3s vote to end debate on a rules change in order to get to a (majority) vote on such changes, and Rule V means that Rule XXII applies from one congress to the next (i.e., continuously applicable).
So Myth #1 that the Senate cannot ever change its rules by simple majority vote, must be true, RIGHT!

Buzzzzzzzzzzz!

WRONG!!!!

Because as we all know from our Grade School (School-House-Rock) days, there is one document that trumps any law or rule ever written, and that document is the CONSTITUTION.  So what does the Constitution say about the rules Congress operates under?

Article I, Section 5 states:

"Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member."
Let's break this down a bit.  First off, it clearly indicates that the Senate sets the rules of its proceedings (i.e., the rules under which it will operate).  But what is most striking about Article I, Section 5 is that while it states that a super-majority of 2/3s is needed to expel a member, it does not require such a majority to determine the rules or to punish members.  The constitution also requires super-majorities for other things, such as the Senate ratification of a treaty.  But what is most significant about each mention of super-majorities in the constitution, is the implication that where the constitution does not indicate a requirement for a super-majority, a simple-majority of the House or Senate is all that is needed to pass a measure, including setting the rules of their proceedings.

Now let's be clear, the Constitution clearly allows the Senate to set its own rules and provides no restrictions on what those rules might be.  As a result, the Senate may establish rules requiring super-majorities for other things, such as the Cloture Rule requiring a 3/5s concurrence to limit debate on a measure.  But what Article I, Section 5 does, is STRONGLY imply that the Senate rules may be determined by a simple majority vote (being 51 Senators or 50 Senators + the VP).

Furthermore, notice Article I, Section 5 states that: "Each House may determine the Rules of its Proceedings...", which is different from changing the rules once they are determined.  That brings us to a discussion of the "Nuclear Option", the "Constitutional Option", and Myth #2.

Myth #2: "The Nuclear Option and the Constitutional Option are the same, just with different names."

This myth stems from the punditry in the conventional media who often wrongly use the terms interchangeably.  They are not the same!

The "Nuclear Option" in essence is the changing of the Senate Rules through a simple majority vote at any time during a Congressional Session.  Although it is similar to the Constitutional Option in terms of the mechanisms by which this is done (which I will get to), the key difference is that the Nuclear Option involves changing  the rules by majority vote during a session after the Senate Rules have been established.

The term "Nuclear" is used for a couple of reasons.

First, although changing the rules by majority vote is allowed under the rules, limiting debate on a motion to change the rules requires a 2/3s super-majority under Senate Rule XXII which we discussed earlier.  Therefore, getting to a vote on a rules change either without debate or by limiting debate with less than a 2/3s vote is in direct conflict with Rule XXII.  This is one of the reasons the term "Nuclear" is used since it involves changing the rules by ignoring (or blowing up) one of the rules.

The second, and more important reason the term "Nuclear" is used, is that an "in-session" rules change by ignoring Rule XXII is not covered under the Constitution.  Remember, Article I, Section 5 states that, "Each House may determine the Rules of its Proceedings...", and as we explained early, this connotes by a majority vote.  However, it is important to point out that Article I, Section 5 talks about "determining" or establishing the rules, not changing them after they are established.  Therefore, (IMO) Article I, Section 5 does not provide a Constitutional cover for ignoring Rule XXII during a congressional session, or cover from the Nuclear Blast that will ensue if the precedent is established that all rules can be changed at any time by the Majority (e.g., Good-Bye Filibuster).

The "Constitutional Option" in essence is the invocation of Article I, Section 5 of the Constitution to determine the rules of the Senate by a majority vote of that body.  As we said earlier, Article I, Section 5 connotes determining the rules of each House of Congress by majority vote since for certain other acts it stipulates requiring a super-majority to pass (e.g., 2/3s is needed to expel a member).  That is the key difference between the “Nuclear” and “Constitutional” options, since with the Constitutional Option we are talking about "determining" Senate Rules, not "amending" (or changing) Senate Rules as is the case with the so-called “Nuclear Option”.  As a result, unlike the Nuclear Option, the Constitutional Option is not in direct no real conflict with Senate Rule XXII which requires a vote of two-thirds of the Senators present and voting to limit debate on amending or the changing rules (although we still have a problem with Rule V which we will get to later).

So:

Myth #2 = BUSTED, The “NUCLEAR” and “CONSTITUTIONAL” options are NOT the same!

BTW, in case you have lost track, we are still working on the second part of Myth #1, "The Senate cannot ever  change its rules by a simple majority vote".  Still working on this myth leads us to delve deeper into the "Constitutional Option" which is the option that we are looking at to facilitate reform of the Filibuster in the coming term.

So how and when does the Constitutional Option get invoked?

Let's take the "How" question first, because that's a little more straight forward and less controversial.  This involves taking a look at how the Senate deals with "Questions of Order", and that in turn involves Senate Rule XX which says:

1. A question of order may be raised at any stage of the proceedings, except when the Senate is voting or ascertaining the presence of a quorum, and, unless submitted to the Senate, shall be decided by the Presiding Officer without debate, subject to an appeal to the Senate. When an appeal is taken, any subsequent question of order which may arise before the decision of such appeal shall be decided by the Presiding Officer without debate; and every appeal therefrom shall be decided at once, and without debate; and any appeal may be laid on the table without prejudice to the pending proposition, and thereupon shall be held as affirming the decision of the Presiding Officer.
and
2. The Presiding Officer may submit any question of order for the decision of the Senate.
There are a number of important things in this rule, so let’s break it down into manageable parts.

First, the "Presiding Officer" is simply the Senate President or a Senator acting on his or her behalf, who sits in the Chair and presides over Senate proceedings.  However, in cases such as this where matters of significance are to be decided or when the possibility exists of a tie vote (50 - 50), the President of the Senate will be the Presiding Officer.  And the President of the Senate is the Vice President, per Article I, Section 3 of the Constitution.

Second, its very important to note that the rule states that questions of order shall be decided by the Presiding Officer without debate.  This is important since the rule prohibits the body from debating such questions, they are not subject to a filibuster and do not require a super-majority to end debate.  So there is no way the minority can prevent or impede a ruling by the VP.

Third, the rule states that any ruling by the Presiding Officer is "subject to an appeal to the Senate".  This means that any Senator can appeal to the Chair for a roll call vote by the Senate Body to overturn a ruling by the Presiding Officer.  Any appeal is decided by a simple majority vote (either 51 Senators, or 50 Senators + the VP).

Fourth, the second part of this rule allows the Presiding Officer (the VP) to simply punt the question to the Senate Body to be decided by a simple majority vote.

Lastly, although not written into Rule XX, the Presiding Officer can pose the question to the "Senate Parliamentarian" and request that he/she make a recommendation on how the Chair should rule.  The Senate Parliamentarian is an administrative official appointed by the Senate who has substantial knowledge of the Constitution, Senate Rules and parliamentary procedure.  The role of the Parliamentarian is a well established in precedent (we'll talk more about "precedent" and the important role it plays in the process a little later on) and although the majority party controls the appointment of the Parliamentarian, he/she has been historically regarded as a non-partisan official whose duty it is to issue unbiased opinions in accordance with the constitution, rules and precedent (there's that word again).  Although a ruling by the Chair which is consistent with the Parliamentarian's recommendation provides considerable added legitimacy to the ruling, the Presiding Officer is not obligated to rule in accordance with the recommendation.

So by raising "Questions of Order" (or "Points of Order" which is the term normally used during actual proceedings on the Senate floor), decisions regarding the Constitutional Option can be made by the Chair and/or by a simple majority vote of the Senate Body.

That answers the "How" question, now onto the question of "When" the Constitutional Option pertaining to the Senate rules can be invoked.

This goes back to Article I Section 5 of the Constitution, and it is where the Constitutional Option gets its name.  Remember that we said Article I Section 5 allows the Senate to determine its rules by majority vote, and when the Senate gets to determine its rules is the key element of the Constitutional Option.  The basis of the Constitutional Option lies in the theory that the Senate gets to determine its rules at the (very) beginning of each new Congress (i.e., each year after a Congressional election or every 2 years).  Although this is when the House determines its set of standing rules, I used the word "theory" in the Senate's case, because of the opposite theory that there is not a "new Congress" every two years with respect to the Senate, but rather that the Senate is a "continuous" sitting body.  This theory stems from the fact that the Senate, unlike the House, only has 1/3 of its members up for election every two years.  This is the argument used to support the Continuous Body theory.  However, there are a number of other aspects to the way the Senate operates that contravene this argument.  For instance, Senate action on a bill that is not completed during a Congressional term does not continue into the next Congressional term (i.e., un-passed bills die at the end of each Congress).  Also, appointments to Senate Committees are limited to the Congressional term, although committee members often remain the same from term to term through re-appointment at the beginning of each term.  This ongoing debate over whether the Senate is, or is not, a "Continuous Body" is critical to the ability to use the Constitutional Option.

If it is a Continuous Body, the rules under which it operates would be continuous, which is the basis of Senate Rule V "The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules."  This would in turn mean that the only way to change or adopt new Senate rules is by following Senate Rule XXII which requires a 2/3s vote to limit debate on a rules change.  However, this would also mean that we accept the concept that the only time the Senate got to determine its rules under Article I Section 5 of the Constitution (i.e., using the Constitutional Option to establish its rules by a simple majority vote) was in the first Congress way back when, and that they were stuck with them unless 2/3s of the body agreed to limit debate and pass altered or new rules.

However, if the Senate is not a Continuous Body, the Constitutional Option could be used on "Day One" of each Congressional term to establish the rules under which the Senate will operate during that term.

This ongoing argument over whether the Senate is a Continuous Body leads us into our discussion about "Precedent" and its importance in resolving the "when" part of the Constitutional Option question.  The term "Precedent" in this case is meant to refer to looking at past decisions on Questions of Order which were made by the Senate's Presiding Officer (usually the VP) and have either gone unchallenged by the body or upheld by a simple majority vote.  Keep in mind that the Senate has historically regarded such established "precedents" (or upheld decisions from the Chair) as paramount and having considerable influence on subsequent decisions.  In fact, one Senate Parliamentarian, whose name escapes me at the moment, regards “precedent” as important as the rules in determining questions of order.  So I think you get the picture on the importance of precedents in Senate proceedings.  Now let's look at the historic precedents with respect to the Constitutional Option, and at Myth #3.

Myth #3: "There is no definite precedent set for use of the Constitutional Option to facilitate the setting of new rules"

To start with, there is a long history in the Senate of attempts made to use the Constitutional Option to set new rules at the beginning of a Congressional term.  But since this diary is already too long, in the opinion of some of you I'm sure, I will focus on a few of the milestones which help to cement the precedent for use of the Constitutional Option.  

1. In 1957, the first clear ruling in support of the Constitutional Option was made by the Presiding Officer (VP).  On the first hour of the first day of the new congressional term (remember the significance of “Day One” regarding setting of the rules), Senator Clinton Anderson (D-NM) proposes a new set of Senate Rules (really the old set with some changes of course).  He is opposed in this endeavor by the Majority Leader at the time Senator Lyndon Bynes Johnson (LBJ) (D).  Yes, they are both Democrats and on opposite sides of the Constitutional Option debate.  After a few hours of debate, Senator Hubert H. Humphrey (D), who also supports the Constitutional Option, gets up and poses a question to the Presiding Officer.  His question is in essence this:

Since this Senate has not agreed to the continuance of the rules from the previous Senate and we have not yet adopted the new proposed set of rules, under what rules is the Senate presently operating?

Pretty profound question, and one that was set up to elicit the desired response from the Presiding Officer.  And you'll never guess who the Presiding Officer is?   Here's a hint:  For us progressive he is one of the most despised Republicans of all time.

(Queue the Jeopardy music)

Give up?

Its then VP Richard M. Nixon!  So how many of you guessed Tricky Dick!

Anyway, in response, Nixon provided the following (paraphrased) "Advisory Opinion", in consultation with the Senate Parliamentarian:

Since the Presiding Officer has never ruled that the rules of the Senate are continuous from one Senate to the next (Continuous Body theory), the issue is open.  In such situations Nixon argued, we must turn to the Constitution for guidance.  Nixon concluded that under Article I, Section 5 which gives each House the ability to determine its rules by a simple majority, the Constitution grants the majority of the new existing members of the Senate the power to determine the rules under which the Senate will proceed.  Nixon reasoned that no Senate could deny a future Senate the ability to exercise a Constitutional right.  Furthermore, Nixon added, that because [previous] Rule XXII (remember Rule XXII requires a super-majority to limit debate on a rules change), in practice, denied a majority of the Senate from enacting new rules in accordance with Article I, Section 5, Rule XXII was Unconstitutional.
So there you have it, the first clear opinion by a Presiding Officer supporting the validity of the Constitutional Option, being that each new Senate Body has the right to set its rules by majority vote without needing a 2/3s vote to limit debate per Rule XXII.  I would note that this was indicated by Nixon as an "Advisory Opinion" not a formal ruling by the Chair and as such was not to be considered binding precedent.  However, there is nothing which says it can't be used in the future, and it did have the endorsement of the Senate Parliamentarian to add to its legitimacy.

In the end, debate on Anderson's motion to adopt new rules ended under a previous Unanimous Consent agreement to limit debate, and the Senate voted 55 to 38 to table (kill) the motion.    

2. In 1959, the fight over the Constitutional Option was renewed with basically the same set of players as in 1957, except there were more Dems. in support of the option.  However, this time LBJ (still Majority Leader) put forth a compromise set of rules which included changing Rule XXII to require 2/3s of Senators present to limit debate instead of 2/3s of sworn Senators.  To make this palatable to Senators opposed to the Constitutional Option, he introduced new Rule V which stated "the rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules", in an attempt to enshrine Rule XXII for all subsequent Senates (Continuous Body theory again).

Again, Nixon issued his 1957 opinion in response to a series of parliamentary inquiries.  However, this time he added that:

Any rule which directly or indirectly prevented a the majority of a new Senate from exercising their right under the Constitution to, on the first day of a new session, determine the rules under which it will operate, is inapplicable.  And that as such, the majority has the right to cut off debate to exercise their right to establish the rules.
There are a couple of important points Nixon is making here.

First, he links the right of the Senate to establish its rules by simple majority vote to the first day of each new congressional session, which is a key element of the Constitutional Option that lends substantially to its credibility.  In fact, Nixon goes on to explain that the Senate basically has three options on “Day One” with regard to the Senate rules:

A.    They can vote (by simple majority) in favor of a motion to adopt a new set of rules;

B.    They can vote (by simple majority) to table (kill) a motion to adopt a new set of rules; or

C.    They can passively acquiesce to operating under the rules established by the previous Senate by simply beginning to operate under the old rules.

What is also implied by Nixon’s Day One opinion is that once the Senate adopts the rules it will operate under during a Congressional term by one of the 3 above methods, they are bound to those rules for the term, and can only change them as allowed under the rules themselves, and in this case that would mean as spelled out by Rule XXII (2/3s vote to limit debate on a rules change).  This is where the difference between the “Constitutional Option” and the “Nuclear Option” which we discussed earlier, is established.

Second, Nixon comes right out and says that debate on establishing the Senate rules on Day One can be limited by a simple majority of vote of the Senate’s members, since requiring a greater majority to limit debate (as in Rule XXII) would circumvent the new Senate Body’s right under Article I, Section 5 of the Constitution to determine its rules by a simple majority vote.  

In the end LBJ was able to pass his compromise which stuck us with Rule V.  However, what is important here is that Nixon was able to strengthen his previous opinion further cementing the legitimacy of the Constitutional Option.

3. Now moving forward into 1969, the debate over the Constitutional Option continues with new players.  Those players being Senator Frank Church who is seeking to change the Cloture Rule from 2/3s to 3/5s to limit debate through use of the Constitutional Option, and VP Hubert Humphrey sitting as the Presiding Officer.

In filing cloture on his proposed new rule (on the first day again), Senator Church posed a question to the Chair as to whether debate could be ended through use of the Constitutional Option (i.e., by a simple majority vote).  Humphrey, being bound or at least heavily influenced by Nixon's 1957 and 1959 opinions, issued the following ruling in response to Church's question:

If a majority of the Senators present and voting, but fewer than 2/3s, vote in favor of the pending motion of cloture, the Chair will rule that a majority having voted to limit debate on said motion on the opening of a new Congress, limited debate will proceed under the cloture rule.
This time the Senate did vote 51 to 47 to limit debate, and Humphrey announced that cloture had in fact been achieved!

So there you have it, debate on establishing new rules was limited by a simple majority vote thereby putting the Constitutional Option into actual use.  But the story doesn't end there.

Getting nervous over what just happened, Senator Holland appealed the rule from the Chair that cloture had been achieved, and Humphrey put the appeal before the Senate Body for a vote.  This time the Senate voted 53 to 45 to sustain the appeal, negating (sort of) the previous “simple majority” cloture vote.

4. Then in 1975 Senator Walter Mondale (D) is seeking a similar 3/5s filibuster reform though new rules at the beginning of the session.  He formally objects to proceeding under the rules of the previous Senate and cites the previous opinions/rulings by Nixon and Humphrey as supporting the new Senate's constitutional right to determine its own rules.  Mondale secures a Unanimous Consent agreement by which the Senate is allowed to proceed to other business under some of the old rules, while not losing the right to establish new rules under Article I Section 5 of the Constitution (i.e., they establish the two-track system for operating the Senate).  So the Senate is allowed to work under the old rules without acquiescing to those rules so as to preserve the first day rights to establish its rules.  This is important since we are likely to face the problem of Senators wanting to move on to other pressing business in 2013, conflicting with Senator's wishing to continue debating filibuster rules reform.  We will focus on this two-track agreement when we get to Part 3 of this series.

Moving on, Senator Pearson (R) who was working with Mondale in once again trying to establish a 3/5s cloture rule, made a motion asking for an immediate vote on his motion to end debate on his 3/5s rule by a simple majority vote per Article I Section 5 of the Constitution.  So in essence, he wants the Senate to vote, by simple majority, on ending debate on his rule so as to move to a simple majority vote on the new rule itself.

Next Senator Mike Mansfield, in opposition to the Constitutional Option, requests the Chair to rule on a point of order that Pearson's motions violate Rule XXII.

Then VP Nelson Rockefeller (R) sitting as Presiding Officer declares that the continuation of the previous Senate rules is a constitutional question and as such poses the question to the Senate Body for a vote.

Then Senator Jacob Javitts (D) asks the Chair if he can call for a vote to table (kill) Mansfield's point of order, and if the Senate voted to table that point of order, would that then mean that Pearson's motion for a simple majority vote on ending debate on his 3/5s proposal would then be valid (i.e., if the point of order is killed, would that mean Pearson can have his vote?)?

Humphrey then issued a ruling supporting Javitts and declaring that if a simple majority voted to table Mansfield's point of order, the Senate would be able to directly proceed to a vote on Pearson's motion for a simple majority vote on ending debate.

Well debate on all of this continued with Senator Edward Kennedy speaking in support of a simple majority vote.   He reminded the Senate that although the bid in 1969 to limit debate on establishing new rules by a simple majority vote was tabled (killed), that very question was decided by a simple majority of the Senate, which ironically furthered the argument of the Senate exercising its will through the means of a simple majority.  Pretty smart guy' this Kennedy fellow!

Anyway, the Senate eventually voted to table (kill) Mansfield's point of order by 51 to 42.  Debate on the first part of Pearson's motion began as ordered by the Chair, but the Senate adjourned at the end of the day without a vote.

The next day Mondale came back with the same Motion as Pearson, and a vote again took place on another Mansfield point of order.  Again, a simple majority voted to table the point of Order making it the second time in two days that a majority of the Senate effectively voted to uphold the Constitutional Option.

Debate once again ensued on Mondale's motion to end debate on his 3/5s proposal by a simple majority vote, and Mansfield raised yet another point of order and again his point of order was put to a vote and defeated by a simple majority, marking the third time the Constitutional Option was upheld.

At this point, the Senators opposing filibuster reform, realizing they were going to lose, finally relented and a compromise was floated.  Instead of requiring 3/5s of the Senators present and voting to achieve cloture (as Mondale had proposed), a compromise from Senator Robert Byrd which required 3/5s of the Senators elected and duly sworn to achieve cloture was introduced.

However, conservative Senators were worried that the 3 simple majority votes to table points of order and upholding the Constitutional Option might establish a precedent (in fact it does).  They got an agreement for a separate vote to rescind (undo) the third tabling vote (but notice it did not call for undoing the first 2 tabling votes).  They theorized that by undoing the previous vote, they would undo the precedent it set with regard to the Constitutional Option.  However, conservative Mansfield argued that allowing the other two votes to stand would preserve the precedent, but interestingly he did not make a motion to undo those (Not sure why).  Anyway by this point, a vast majority of the opposition was tired of the fight and just wanted to move on.  

So in the end the 3/5s compromise was passed by a vote of 56 to 27 ( a 2/3s majority as required under Rule XXII), the rescinding of the third tabling vote was passed and the other two previous precedent setting votes were allowed to stand.

Well that’s basically the history of the “Constitutional Option” and the precedents which support it.  Leaving us at the point of decision on Myth #1.  You remember Myth #1:

Myth #1: "The Senate cannot ever change its rules by a simple majority vote."

I’ll leave it up to you to decide but after all the ground I’ve covered above, for me, I have to conclude:
Myth #1 = BUSTED!

Hope to see you for Part 3 of the series where we will cover some of the specific rules that are being discussed to reform the filibuster (with my opinion of each), and others I would like to see, as well as how the actual process might play out.

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