When Congress Cheats on Its Rules

Special to FreeRepublic ^ | 12 March 2010 | John Armor (Congressman Billybob)

[ding_dong_daddy_from_dumas]

Any Senator can appeal the ruling of the Chair. The body then votes by a majority to uphold or reject the ruling of Chair. So let us assume that Vice President Biden is in the Chair and he rejects the opinion of the Parliamentarian, and a simple majority of the Senate goes along with that.

No, I think it takes 60 votes to overrule the parliamentarian.

The Budget Act also maintains that reconciliation provisions must be related to reconciling the budget. For example, section 313 of the Budget Act, more commonly known as the "Byrd Rule", provides a point of order in the Senate against extraneous matter in reconciliation bills. Determining what is extraneous is often a procedural and political quagmire navigated in part by the Senate Parliamentarian. The Byrd Rule and other points of order in the Budget Act may only be waived in the Senate by a three-fifths vote.

[Congressman Billybob]

Here's how it goes: A member raises a Point of Order that a certain provision (about half of the “health care” bill and half of the “student loan” bill) does NOT belong in reconciliation. The Parliamentarian states his opinion.

The Chair (presumably Joe Biden on this occasion) issues his ruling, which can reject or accept the opinion of the Parliamentarian. Assume that Biden is in the tank for Obama, so he rules falsely that all this extraneous stuff belongs in the reconciliation process.

If anyone objects, the whole Senate then votes to uphold or reverse the Chair by a majority, only. And if there is a tie, Biden can vote to break the tie.

The point of the Byrd Rule is to prevent extraneous matters in budgetary process. But if the people in charge are willing to lie about it, the protection disappears.

John / Billybob

[CharlesWayneCT]

It actually would be a minor intervention to slap down the Senate bill if it is passed this way. After all, the remedy is simple — the House simply has to take a majority vote on the Senate bill.

When the constitutional issue is clear, and the remedy is simple, the court will intervene. They won’t be preventing the law from being passed, only requiring that the House take a vote on the bill.

[CharlesWayneCT]

I think the court would be more likely to intervene based on the fact that, if the Senate bill is enacted by a vote that includes either a “rule language”, or the “reconciliation bill”, that the passage was not of identical language to what the Senate voted on.

The Court has weighed in before and said that votes must be held on identical language. Since it is clear that the House is doing this so they can have additional language, and thus vote on a modified bill, the Court would likely step in and say the two bills were not in fact identical.

They applied this in the line-item veto case. This would be like the House voting on 20 different bills at once, and then the senate deciding which ones to pass and which to reject.

I think it gets even more obviously unconstitutional if the senate rejects the reconciliation language passed by the house, since then it would mean that the only vote held in the house was REJECTED by the senate.

And since the remedy is so easy, and fully available to the House (vote on the Senate bill) and it is so clear that the purpose of the Democrats is to subvert the process to circumvent the constitutional requirement to pass the same bill, I see this as an EASY ruling for the court. They won’t be blocking health care reform, they will simply be requiring the Democrats to vote on it.

[CharlesWayneCT]

Others have suggested that bills are passed by voice vote all the time, but now I’m wondering if those are things that are not “laws” but are some other legislative intent.

Those people though say the enumeration of votes is only for a veto override. But then why the term “In All Cases”?

I still think the better argument is that they won’t have passed the SAME LANGUAGE, since however the house passes the bill, it will have been by a vote that included additional language enacted by the vote, either the rule, or the reconciliation bill.

[CharlesWayneCT]

When it goes to Obama’s desk, wouldn’t a party with standing be able to ask for a stay pending review? It seems easy enough to argue that signing the bill could cause irreparable harm.

[CharlesWayneCT]

If anyone objects, the whole Senate then votes to uphold or reverse the Chair by a majority, only. And if there is a tie, Biden can vote to break the tie.

Isn't there some question about whether Biden has the authority to vote on his own ruling?

[OldDeckHand]

"Isn't there some question about whether Biden has the authority to vote on his own ruling? "

It's my understanding the he can't vote on his own ruling.

There's additional discussion going on over here, that you might be interested in

. Apparently, there is some precedential case for these "deeming" rules. Waxman sued several years ago when the Republicans raised the debt ceiling using a deeming rule. Waxman lost.

[ding_dong_daddy_from_dumas]

I am not sure about Biden overruling the parliamentarian. However, this (from your article) does not sound correct:

Any Senator can appeal the ruling of the Chair. The body then votes by a majority to uphold or reject the ruling of Chair.

The Byrd rule contradicts that statement. LINK: The Budget Act also maintains that reconciliation provisions must be related to reconciling the budget. For example, section 313 of the Budget Act, more commonly known as the "Byrd Rule", provides a point of order in the Senate against extraneous matter in reconciliation bills. Determining what is extraneous is often a procedural and political quagmire navigated in part by the Senate Parliamentarian. The Byrd Rule and other points of order in the Budget Act may only be waived in the Senate by a three-fifths vote.

[Congressman Billybob]

The Byrd Rule is not self-enforcing. Under Roberts Rules, which Congress uses, the Parliamentarian only advises the Chair. The Chair rhen issues his/her decision. There are a few examples in the past of the Chair reversing the opinion of the Parliamentarian.

I have served as Parliamentarian of a national political convention. This is how the Byrd Rule or any other operating rule, is carried out. You are correct that Biden should not reverse such an opinion. And a majority of the Senators would be dead wrong to uphold such a breach of duty.

My article begins after both of those failures have occurred. It answers the question whether there is any court remedy, when all else fails — House, Senate and President.

John / Billybob

[txhurl]

Bump.

[JohnBovenmyer]

It's also worth remembering Powell's end. Congress reseated and failed to expell him. But he lost the 1970 Democratic primary to Charlie Rangel. Who has upheld all of Powell's standards ever since. When Powell's term ran out he moved to Bimini and died there in 1972.

[txhurl]

mo bump.

[loveliberty2]

Is it possible that the President’s outrageous assault on the Court during the SOTU speech was in anticipation of such an action?