Breaking on MSNBC: McConnell CAVES, rescinds demand on filibuster. Schumer to take charge.
Power based on 2001 arrangement.
= new reply since forum marked as read
the thread is long and they make multiple errors over and over.
just look at my pervious posts and the replies here in this OP thread
the rules can be changed mid session (and have been multiple times) thru many different ways (see below)
if rules could only be changed at the beginning of a session, then we would not even be talking about the filibuster at all, the fact that the doing away with filibuster was not put in writing simply keeps it in play, it does NOT make it the only rule that can be touched
Changing the rules (whether directly or via a new precedent) is NOT limited to only tinkering (or doing away with) the filibuster
Arlo the VP IS a member of the Senate, NOT just the Executive (as was erroneously claimed), and CAN break ties on any vote, I asked repeatedly for proof of the claim that the VP could not vote on rule changes or new precedent, and none was provided
if the VP couldn't vote on rules changes (in this case via new precedent), then we would not even be talking about changing the filibuster as we only have a 50/50 tie
https://www.reuters.com/article/us-usa-congress-idUSKBN29Q2VT
here is a lot of background
Eight Mechanisms to Enact Procedural
Change in the U.S. Senate
https://fas.org/sgp/crs/misc/IN10875.pdf
Updated December 2, 2020
The Senate’s unique procedural rules have long been a source of interest both inside and outside of
Congress. While some hold the view that Senate rules operate well, others have advocated an examination
of Senate procedures with an eye toward changing them. This Insight highlights eight parliamentary
mechanisms that might be used to implement procedural change in the Senate and links to additional
reading material on the subject.
The work of the U.S. Senate is regulated not just by its 44 standing rules but by multiple, sometimes
overlapping, procedural authorities. At any given time, unanimous consent agreements, standing orders,
statute, precedent, and provisions of the U.S. Constitution may also regulate the Senate as it processes its
legislative and executive business. It is perhaps natural for those seeking changes to Senate procedures to
think in terms of “amending Senate rules,” but directly amending the standing rules of the Senate is only
one way to affect chamber procedures. Because some Senate actions are, or may be, controlled by
multiple authorities, it is sometimes possible to achieve the same procedural outcome using more than one
parliamentary mechanism. While each mechanism may achieve identical ends, each may also have
procedural advantages and disadvantages that make it a more or less desirable path for action in a given
instance. Here are eight such mechanisms:
1. Amend the standing rules. Because the Senate is a “continuing body,” its standing rules
remain in force from Congress to Congress unless changed. A motion to proceed to
consider a resolution (S.Res.) reported by a committee directly amending the Senate’s
standing rules is always debatable and requires one day’s written notice. If a unanimous
consent request for the immediate consideration of a resolution amending the standing
rules is objected to, the resolution “goes over, under the rule” and is placed in a
parliamentary status from which it is difficult to retrieve. Although agreeing to a rules
change resolution requires only a majority vote, invoking cloture on such a resolution
(which is fully debatable and subject to amendment) requires a vote of two-thirds of
Senators present and voting, with a quorum present—67 if all Senators vote. It appears
the same cloture threshold would likely apply to the motion to proceed to such a
resolution. Direct amendments to the standing rules are also occasionally made by statute.
2. Create or amend a standing order. The Senate sometimes instead establishes chamber
procedures by standing order. Standing orders have the same force as standing rules but
are not codified in the rules. The Senate Manual lists major standing orders now in force.
Standing orders continue in effect until changed, unless the order specifies otherwise.
They are frequently established by resolution but can also be ordered by unanimous
consent. A motion to proceed to consider a reported resolution establishing a standing
Congressional Research Service 2
order is debatable, and invoking cloture on that motion, and on the measure itself,
requires a three-fifths vote of the Senate—60 votes if there is not more than one
vacancy—a lower threshold than required for cloture on resolutions proposing direct
amendments to the standing rules.
3. Unanimous consent. More than any other parliamentary mechanism, the Senate uses
unanimous consent agreements to process and establish the terms for considering floor
business. Senate Rule V provides that any rule may be suspended without notice by
unanimous consent unless the rules specify otherwise. Any Senator present on the floor
when a consent request is propounded can object, including on another Senator’s behalf,
blocking the request. Once agreed to, a unanimous consent agreement may be
subsequently altered in whole or in part by another such consent agreement.
4. Establish a new precedent. Senate procedural actions are also regulated by
parliamentary precedent. Rulings of the presiding officer on the application of chamber
rules are generally subject to an appeal to the full Senate. In most procedural
circumstances, appeals are debatable. This fact operates as a significant bar to creating
new precedent by appeal. When appeals are made in procedural circumstances that render
them nondebatable, however—for example, after cloture has been invoked or when the
appeal is made in relation to a nondebatable motion—no supermajority to limit debate is
needed, and a majority can overrule the chair and establish a new understanding of what a
Senate rule means or how it is applied.
5. Enact a rulemaking statute. The Senate sometimes enacts parliamentary rules in law,
such as the Congressional Review Act and the Trade Act of 1974. Doing so requires two chamber passage of a bill or joint resolution and presidential approval (or veto override).
Rules changes might appear in a bill as introduced or be added by amendment. Calling up
and reaching a final vote on legislation may each require a three-fifths vote for cloture
except if the measure directly amends the Senate’s standing rules, in which case a two thirds vote is necessary.
6. Suspend the rules. Rule V also makes in order a motion to suspend Senate rules,
including rules in law, such as the Congressional Budget Act. A motion to suspend the
rules does not permanently change Senate rules; it suspends them only in the specific
case and in the exact manner specified in the motion. The motion to suspend requires one
day’s written notice before consideration, and its adoption is by a two-thirds vote, a
quorum being present. Such motions are debatable, and a three-fifths cloture vote may be
necessary to reach a final vote. Under a 2011 precedent, motions to suspend the rules are
not in order post cloture.
7. Amend the Constitution. The Constitution establishes certain parliamentary rules for the
Senate, including its business quorum and the requirement to maintain a journal. A
constitutional amendment may be proposed by Congress by a two-thirds vote of each
chamber or by a constitutional convention called for by two-thirds of the state
legislatures. Such an amendment becomes part of the Constitution once ratified by three fourths of the states. Joint resolutions proposing constitutional amendments are debatable
and amendable. Successfully calling up such a measure and reaching a vote on it in the
Senate could both require three-fifths vote for cloture.
8. Voluntary action. Significant procedural change can sometimes occur as a result of
voluntary action undertaken by Senate leaders or groups of Senators acting collectively.
In 2011, for example, Senate leaders entered into a voluntary informal agreement related
to extended debate and the offering of floor amendments. Such “gentlemen’s
agreements” are not procedurally enforceable, however.
Congressional Research Service 3
IN10875· VERSION 5 · UPDATED
9.
For additional reading on mechanisms to change Senate procedures and recent related actions, see:
CRS Report R42929, Procedures for Considering Changes in Senate Rules;
CRS Report R41342, Proposals to Change the Operation of Cloture in the Senate;
CRS Report R44395, Amending Senate Rules at the Start of a New Congress, 1953-1975: An
Analysis with an Afterword to 2015;
CRS Report R42928, “First Day” Proceedings and Procedural Change in the Senate;
CRS Report R42996, Changes to Senate Procedures at the Start of the 113th Congress
Affecting the Operation of Cloture (S.Res. 15 and S.Res. 16); and
CRS Report R43331, Majority Cloture for Nominations: Implications and the “Nuclear”
Proceedings of November 21, 2013.
https://fas.org/sgp/crs/misc/R44709.pdf
Ways to Alter Senate Rules
rules referred to the Committee on Rules and Administration for hearings, markups, and possible
floor consideration. Or the Rules and Administration Committee on its own authority could report
to the floor legislation that amends the standing rules. Unanimous consent is another way to
modify Senate rules. Still another is by statute, enacted pursuant to the chamber’s constitutional
rule-making authority. The Senate also can establish standing orders that are regulations or
directives that are equivalent to a standing rule but are not incorporated into the standing rules.
An example of a standing order is to designate the Senate Parliamentarian, upon his or her
retirement, as “Senate Parliamentarian Emeritus.”
In addition, there is the so-called “nuclear option,” which is “essentially a variant of the
‘constitutional option.’ The difference is that this parliamentary manoeuvre would be applied
[during] a congressional session” rather than at the beginning of a new Congress.
6 The term “nuclear” could be applied to both options in this specific sense: the success of either the
constitutional or nuclear option might trigger a parliamentary meltdown, an explosion of dilatory and obstructive tactics by Senators who vehemently oppose limitations on their ability to debate
at considerable length various measures or matters.7
The “nuclear option” involves the creation of a new Senate precedent that has the effect of
preventing filibusters of specific measures or matters.8
In general, precedents are established in
the following manner:
Any ruling by the Chair in response to a point of order made by a Senator is subject to
appeal. If no appeal is taken, the ruling of the Chair stands as the judgment of the Senate
and becomes a precedent for the guidance of the Senate in the future.... [If there is an
appeal, then unless] the Chair is supported by a majority vote of the Senate, the decision
of the Chair is overruled. This decision of the Senate becomes a precedent for the Senate
to follow in its future procedure until altered or reversed by a subsequent decision of the
Chair or by a vote of the Senate.9
With respect specifically to the nuclear option, “some would hold that what would render
proceedings ‘nuclear’ is not simply that they would establish new precedential interpretations of
the rules, but that they would do so through proceedings that ... involve violations of procedural
standards previously established and already in effect at the time the Senate is considering the
proposed new interpretation.”
10 A key feature of precedential change is that the text of a formal
rule remains unchanged, such as Rule XXII, but the new precedent effectively alters all or parts
of its application and interpretation in chamber proceedings. As former GOP Senator Judd Gregg
of New Hampshire emphasized, “In the parliamentary process, precedent is what controls.”11
I repeat, the filibuster is NOT the only rule that can be changed or altered (in effect, via new precedent, if that is the only viable way) midsession
any rule is capable of being changed or affected, as long as the correct procedures are applied and the thresholds (vote-wise) are met
the nuclear option is not limited to only the question of the filibuster
finally, creating a new precedent is how a things can be done without running into super-majority requirements (this is what happened in 2013 and 2017)
which is false
They are limited to only voting in the case of a tie (which is what it would be if all Dems were on board)
The Senate has a number of options for curtailing the use of the filibuster, including by setting a new precedent, changing the rule itself, or placing restrictions on its use.
To really get down into the weeds, the VP can also make rulings on a point of order or put the constitutional question directly to a Senate vote.
RULES CHANGES THROUGH PRECEDENT
https://gai.georgetown.edu/rules-changes-through-precedent/
snip
Differences and Implications
Given this context, there are a couple differences between Speaker Reed’s quorum counting and Majority Leader Reid’s nuclear option. First, the House intentionally refused to adopt rules in order to change precedent. The Senate does not have this luxury. It is a continuing body. Meaning, it does not adopt new rules at the beginning of a new Congress. A new Senate is bound by the rules of the previous Senate. Because there is never a lapse in rules, Reid had to interpret the rules through precedent. This is the inverse of Speaker Reed’s tactic of establishing a precedent and then using that precedent to enact new rules of the House. It also creates a more precarious tension between chamber rules and chamber precedents.
Second, there is a significant trigger point that I imagine will come into play as the Senate continues to debate the filibuster. Senate rules require a two-thirds majority to change chamber rules. At what point will the Senate invoke that clause on future interpretations of the filibuster, for say legislative filibusters? Since interpretations are done through appeals of the chair, which are sustained or overturned by a majority, the voting requirements for a rules change and precedent change do not match. Here is the million dollar question: which is more constitutional? Today’s partisans are obviously willing to reinterpret inconvenient rules. The next question becomes, which take prominence? Do the rules of the chamber or the adoption of a new precedent dictate Senate process?
I don’t believe it will come to this in the near future. There are enough procedure stalwarts in the chamber to ward off this kind of tactic in the short-term. However, partisan guerrilla warfare has been boiling over in the Senate in the last decade. So much so that members of Congress have filed several lawsuits in court to adjudicate their own processes. I would not be surprised if a future majority reinterprets the filibuster entirely. And if that is the case, it may be the first time in congressional history that a court will have to decide which rules and precedents will govern Senate process.
This is a somewhat dangerous trajectory. If this were to happen Congress would not just be losing power to the presidency but also to the courts. Partisan procedural tactics threaten to slide America’s First Branch into third. At that point, the branches furthest from the people will also wield the most power. Anyone who can count and has looked at the articles of the Constitution should be concerned about this.
snip
this is what happened (a new precedent was set):
https://en.wikipedia.org/wiki/Nuclear_option
2013: Nominations except Supreme Court
On November 21, 2013, the Democratic majority Senate voted 52–48, with all Republicans and three Democrats voting against (Carl Levin of Michigan, Joe Manchin of West Virginia and Mark Pryor of Arkansas), to rule that
https://www.washingtonpost.com/opinions/2021/01/25/senate-mini-nuclear-option-mcconnell/
This option would not do away with the legislative filibuster. Instead, it would do away only with the blockade that McConnell is imposing right at this moment — the one that is preventing the Senate from organizing and starting to get down to business.
Here’s how this would work. Right now, McConnell is filibustering the organizing resolution, which is the power-sharing agreement that would structure the Senate, given that each party has 50 senators (with Vice President Harris breaking ties). McConnell is demanding that Senate Majority Leader Charles E. Schumer (D-N.Y.) and Democrats agree in advance to never nix the legislative filibuster. In essence, he’s filibustering the very first step toward allowing Democrats to take over the majority, to force them to keep the legislative filibuster, no matter how extensively he uses it to stymie Biden’s agenda.
Democrats are refusing to make that commitment. While they likely won’t actually do away with the filibuster — moderates Joe Manchin III (W.Va.) and Kyrsten Sinema (Ariz.) are opposed — they want to preserve the option of doing so, as leverage against McConnell abusing it with abandon. McConnell’s position is utterly ludicrous, and Democrats should not cave.
But Democrats could end McConnell’s blockade now. Sarah Binder, a congressional expert at the Brookings Institution, says Democrats could devise a procedural motion to create a new precedent that would apply only to organizing resolutions.
In this scenario, Binder says, Democrats would end the filibuster on organizing resolutions in a targeted way, just as Democrats previously ended filibusters only on executive and judicial nominations but not on Supreme Court nominations, and similar to how McConnell and Republicans expanded that move to end filibusters only on Supreme Court nominations.
“Technically, yes, Democrats could with 50 votes and the vice president detonate a small nuke that only hits organizing resolutions,” Binder told me.
However, Binder added, this would in effect push the Senate further into procedural warfare.
“Each time a majority denotes a nuclear device, it greases the skids for future nukes,” Binder said. For this reason, she noted, Manchin, Sinema and other moderates might be reluctant even to detonate this mini-nuke, meaning Democrats might not have 50 votes for it.
Indeed, Manchin said in an interview that he would not support doing this.
“I will not vote to bust the filibuster under any condition, on anything that you can think of,” Manchin told me. “If you can’t sit down and work with your colleagues on the other side and find a pathway forward, then you shouldn’t be in the Senate.”
“Why would I ... vote on something that would divide us further when Joe Biden is coming in trying to unite the country?” Manchin asked.
https://www.senate.gov/artandhistory/history/common/generic/Origins_OrganizingResolution.htm
https://time.com/5932616/why-mitch-mcconnell-is-filibustering-to-protect-the-filibuster/
According to your logic we cannot change it (the filibuster rule) at all
1 because we cannot change the rules due to lack of majority (without VP Harris breaking ties)
2 because the future threat is now gone ,as your say it can only happen at the beginning of the session (which again I showed is just flat out wrong, by giving filibuster rules changes that occurred MID SESSION)
Bonus
a 3rd major error by you
you said
Members of the Executive Branch can't vote on rules of another branch.
wrong
https://www.senate.gov/reference/Index/Vice_President.htm
you are just flat out wrong on all 3 points, and I truly do not know why you continue to insist you are not wrong, and at this point it is pointless to continue with this
this colloquy stands on its own, showing all this to be true
https://www.democraticunderground.com/?com=view_post&forum=1002&pid=15009385
Because the Organizing Resolution is normally passed via a Unanimous Consent Agreement, BUT McTurtle was filibustering it
and Manchin (not sure on Sinema) said he would not even use a micro nuclear option (only applying to the OR) to break that filibuster (although I think he MIGHT have had to if it went on long enough).
https://www.washingtonpost.com/opinions/2021/01/25/senate-mini-nuclear-option-mcconnell/
This option would not do away with the legislative filibuster. Instead, it would do away only with the blockade that McConnell is imposing right at this moment — the one that is preventing the Senate from organizing and starting to get down to business.
Here’s how this would work. Right now, McConnell is filibustering the organizing resolution, which is the power-sharing agreement that would structure the Senate, given that each party has 50 senators (with Vice President Harris breaking ties). McConnell is demanding that Senate Majority Leader Charles E. Schumer (D-N.Y.) and Democrats agree in advance to never nix the legislative filibuster. In essence, he’s filibustering the very first step toward allowing Democrats to take over the majority, to force them to keep the legislative filibuster, no matter how extensively he uses it to stymie Biden’s agenda.
Democrats are refusing to make that commitment. While they likely won’t actually do away with the filibuster — moderates Joe Manchin III (W.Va.) and Kyrsten Sinema (Ariz.) are opposed — they want to preserve the option of doing so, as leverage against McConnell abusing it with abandon. McConnell’s position is utterly ludicrous, and Democrats should not cave.
But Democrats could end McConnell’s blockade now. Sarah Binder, a congressional expert at the Brookings Institution, says Democrats could devise a procedural motion to create a new precedent that would apply only to organizing resolutions.
In this scenario, Binder says, Democrats would end the filibuster on organizing resolutions in a targeted way, just as Democrats previously ended filibusters only on executive and judicial nominations but not on Supreme Court nominations, and similar to how McConnell and Republicans expanded that move to end filibusters only on Supreme Court nominations.
“Technically, yes, Democrats could with 50 votes and the vice president detonate a small nuke that only hits organizing resolutions,” Binder told me.
However, Binder added, this would in effect push the Senate further into procedural warfare.
“Each time a majority denotes a nuclear device, it greases the skids for future nukes,” Binder said. For this reason, she noted, Manchin, Sinema and other moderates might be reluctant even to detonate this mini-nuke, meaning Democrats might not have 50 votes for it.
Indeed, Manchin said in an interview that he would not support doing this.
“I will not vote to bust the filibuster under any condition, on anything that you can think of,” Manchin told me. “If you can’t sit down and work with your colleagues on the other side and find a pathway forward, then you shouldn’t be in the Senate.”
“Why would I ... vote on something that would divide us further when Joe Biden is coming in trying to unite the country?” Manchin asked.
https://www.senate.gov/artandhistory/history/common/generic/Origins_OrganizingResolution.htm
https://time.com/5932616/why-mitch-mcconnell-is-filibustering-to-protect-the-filibuster/
Sounds like it! 
from those accusing the Dems of "caving"!!!!
