Why the Likely Resurrection of Eximbank is Worse than the Budget Deal

The friends of liberty appear to be in danger of suffering two defeats— first, a budget deal that rolls back the sequester without reforms to the core of entitlements and, second, the resurrection of Eximbank. The second defeat would be more devastating than the first, because the procedural advantages are all with liberty in the case of Eximbank.

Although the Republicans have a majority in both houses of Congress, they confront substantial obstacles to working their will on the budget.  The President can veto (without fear of override) any appropriation bill they send up. Even worse, the Democrats can filibuster any bill in the Senate. As a result, the Republicans cannot even send a continuing resolution funding the government to the President’s desk without substantial Democratic support.

Without that resolution, the government will shut down. In the past, government shutdowns have been blamed on Republicans when in control of Congress. People are rationally ignorant of politics and will not follow the various machinations to understand that Republicans are not to blame. Moreover, the Republicans are the party favoring smaller government and thus seem in some sense the logical party at fault. Because of the likely landscape of public opinion, Republicans have little leverage in spending battles when the government is divided as now.

Mike Rappaport and I have suggested that when Republicans gain control of the entire government, they could create a default appropriation rule that keeps the government running but with a lower level of spending.

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The New Filibuster Rule

The Democrats have passed a new rule that prevents the filibuster from being used to block confirmation votes for all presidential nominations, except Supreme Court Justices. In passing this rule, the Democrats used the Constitution or Nuclear Option to change the rules.  The Senate rules require 67 votes to end a filibuster of a change in the Senate rules, which would have prevented the Democrats from changing the filibuster rule.  But many people, including yours truly, argue that this Senate rule cannot constitutionally prevent a majority of Senators from changing the filibuster rule. Hence, the name the Constitutional Option. But this maneuver has…

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Possible Change in the Filibuster Rule

Senate Majority Leader Harry Reid is threatening to change the filibuster rule to allow a majority to end a filibuster of presidential nominees waiting for a vote on senatorial confirmation.  Under the existing rules, such confirmation votes can be filibustered, with cloture of the filibuster requiring 60 votes.  A change in the Senate rules (like the change in the filibuster rule) can also be filibustered, and cloture here actually requires 67 votes.

There is a strong argument, however, that a majority of the Senate can change its rules, notwithstanding the Senate filibuster rule requiring 67 votes.  I have argued (with John McGinnis) that the Constitution requires a majority of the Senate to be able to change the rules:

The third and constitutionally correct view is that the Senate can choose to retain the filibuster rule, but that a majority must be able to change it. The Senate can thereby exercise its full constitutional authority to fashion rules of procedure but past majorities of the Senate cannot put current majorities in a procedural straitjacket. Thus, a change in the filibuster rule by a majority is not a “nuclear” option but instead the constitutional option – the route contemplated by our founding document.

Of course, the Senate majority’s undoubted power to change the filibuster rule does not mean that doing so would be good policy.

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The Filibuster: A (Reluctant) Madisonian Case

As the Senate filibuster braces to receive what may be a mortal wound via the invocation of the “nuclear option” on executive nominees, there are at least 413 reasons to wish the dilatory tactic ill—and one compelling constitutional reason to keep it.  The former is the number of times cloture motions to end debate have been filed since 2007 alone, a measure of the collapse of comity in an institution that used to run on that quality.  The latter is that the filibuster may—or at least can—now function as a constitutional prosthetic, performing the seasoning function the Senate was initially intended to fulfill but which the frenzied pace of modern life has subsumed.

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Why a Majority of the Senate Can Change the Filibuster Rule

Recently, Mike Ramsey discussed the letter of a host of distinguished scholars arguing that the Constitution requires that a majority of each house have the power to change its rules (at least on the first day of the legislative session).  Therefore, the Constitution requires that a majority of the Senate be able to modify or eliminate the filibuster rule this month.

As Mike noted, I have argued  for a similar position before.  First, there is this op ed where John McGinnis and I conclude:

The . . . constitutionally correct view is that the Senate can choose to retain the filibuster rule, but that a majority must be able to change it. The Senate can thereby exercise its full constitutional authority to fashion rules of procedure but past majorities of the Senate cannot put current majorities in a procedural straitjacket. Thus, a change in the filibuster rule by a majority is not a “nuclear” option but instead the constitutional option – the route contemplated by our founding document.

Of course, the Senate majority’s undoubted power to change the filibuster rule does not mean that doing so would be good policy.

These conclusions are discussed more extensively in this Yale Law Journal article entitled “The Constitutionality of Legislative Supermajority Rules: A Defense.”  They are also elaborated upon in a variety of articles that we have published, such as this one.

My view differs in two respects from the Scholars’ Letter.  First, I believe that a majority of the Senate can at any time vote upon a change in the Senate Filibuster Rule.  There is no particular reason why the change needs to be made at the beginning of the session.

Second, I disagree with the claim that the power of a majority of the Senate to change the rules is based on the Framers’ belief in democracy.  The letter states:

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