AEI's Ornstein: Democratic Proposal to Extend Legislative Day 'Not Improper'

Blog ››› ››› JOE STRUPP

Two congressional experts have dismissed claims by some in the conservative media that the U.S. Senate is acting improperly or going against precedent as it considers a filibuster rule change by extending the Senate day and using a simple majority vote.

Ed Morrissey at criticized Senate proposals to extend the sessions first legislative day to provide more time to consider rules changes:

Surprise! Despite the clamor on the Left to "reform" the filibuster now that Democrats have lost most of their Senate majority, some Democrats have looked ahead to the next election and balked at making the majority omnipotent. A flurry of proposals to change the rules to end or neuter the filibuster have clogged the process, with none of them gaining a consensus. "Reform" backers have become so desperate that they want to change the definition of a day in order to get more vote.

At The Daily Caller, Elizabeth Letchworth took issue with Democratic senators' claims that the Senate is not a continuous body, and thus can change its rules on the first legislative day of the session by majority vote:

Where does Sen. Reid get the idea that the Senate is not a continuous body? Maybe he should read the U.S. Senate website, which clearly states what the Senate has lived by for over 200 years. The site reaffirms that when our founding fathers created the Senate, they clearly intended for it to be a continuous body, since two-thirds of senators continue serving notwithstanding the elections that are held every two years.

But veteran Senate experts tell Media Matters such views are inaccurate.

Norm Ornstein, a resident scholar at the conservative American Enterprise Institute and a respected authority on congressional procedures, criticized coverage of the proposed filibuster change.

"I have seen it on Fox and on some of the blogs. It is unfortunate that we get less reporting and more polemics, polemics that become even more wince-worthy because they are so ahistorical and one-sided."

"So much of the history about this is being ignored," Ornstein added.

Ornstein knocked down the conservative claim that the Senate is acting improperly by seeking to extend the Senate day beyond 24 hours: "the Senate has often defined a legislative day to last more than one day. This is unconventional, but not improper."

Steven Smith, a congressional expert and Washington University in St. Louis political science professor, agreed.

"It has been done hundreds of times, it is not improper and it is done in order for the convenience of the Senate," Smith said. "The rules allow for a certain number of activities that occur in each Senate day and a recess continues the legislative day from one calendar day to the next. That happens with considerable frequency. Both parties have availed themselves of that option with great frequency."

Both Ornstein and Smith also took issue with the contention that the Senate is a continuous body and thus rules cannot be changed with a simple majority. According to Ornstein: "It is the case as Tom Udall has pointed out pretty extensively that you are not moving into uncharted territory to say that the Senate is not a continuing body."

"The vice-president can declare it and Nelson Rockefeller and Hubert Humphrey have done it."

On the issue of rule changes, Smith adds: "Even if the current Senate rules provide for a super majority cloture on any matter related to the rules, the Constitution trumps the existing rule and practices of the Senate. Some Democrats have argued that they should operate accordingly.

"There is a legitimate argument based on the Constitution that a simple majority should have a right to reconsider the rules."

Smith also said critics are ignoring historical fact:

"The Constitution allows a majority to revisit the rules. I personally believe the Constitution allows it to revisit the rules at any time."

Ilona Nickels, a congressional analyst and lecturer for the Brookings Institute and Georgetown University and a former C-SPAN Congressional scholar, also weighed in:

"They have a right to do it and it is not at all unusual for the senate to discuss rules changes every two years. That is the logical time in which it is done," she said. "That is not unusual. I wouldn't call it an abuse of power."

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