Coming Right-Wing Smear: Common Legislative Procedure Is “Chicanery”'s Ed Morrissey is the first of what will no doubt become a flood of right-wing media figures falsely characterizing a proposal for Senate Democrats to extend the first legislative day of the session in order to build support for filibuster reform as them using “chicanery” to “change the definition of a day.” But the legislative day “usually does not correspond” to the calendar day, instead lasting “from days to weeks, or even months.”

Morrissey Falsehood: “Desperate” Dems Want To “Change the Definition of a Day”

Politico: Democrats May Extend First Legislative Day Of Session To Build Support For Filibuster Reform. Politico reported:

The debate rests around a series of proposals put forward by several Democrats, including one by Sen. Tom Udall (D-N.M.), who says that the Constitution gives the Senate ability to set its rules -- and that on the first legislative day, such changes can be made by a simple majority of 51 senators. Since rule changes typically require support from two-thirds of the Senate, Majority Leader Harry Reid (D-Nev.) is facing new pressure to simply extend the first legislative day by recessing the chamber at the close of business -- rather than adjourning. That move could extend that first legislative “day” for several weeks and could give Democrats more time to build support for their proposal.


Sixty-seven votes would be needed to change Senate rules, a highly unlikely scenario in a polarized chamber where Democrats hold a 53-47 majority. But the Constitution allows each house of Congress to set its own rules, and on the first day of the new Senate, a simple majority of 51 senators may be allowed to vote to change Senate rules after parliamentary rulings are made by the presiding officer, Vice President Joe Biden.

Udall, the New Mexico Democrat, has long planned to push on the first day of the new Congress what he calls the “constitutional option” -- to allow future rule changes to be made by a simple majority vote. That would allow for subsequent changes to the filibuster rule to be made if Democrats limit their defections to just two members. [Politico, 1/4/11]

Morrissey: Dems Pushing “Posterior-Protecting Absurdities, Like Insisting That A Day Can Last For Weeks.” Morrissey commented on the Politico article (emphasis added):

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 votes:


Why, that's exactly what voters had in mind during this past midterm election! They turned out in droves to vote for even more chicanery and posterior-protecting absurdities, like insisting that a day can last for weeks. That has an additional, practical complication; it would appear to require Joe Biden to continuously preside over the Senate, as the Vice President does on the first day in a session. It's not as if Biden is especially busy, of course -- Wreckovery Summer is long over -- but even Senators can only take so much of Sheriff Joe. [, 1/4/10]

Extending The Legislative Day Is “Not A New” Tactic, It's Been “Done Hundreds Of Times”

Congressional Experts Say Proposal to Extend Legislative Day “Not Improper,” “Done Hundreds Of Times.”

  • AEI's Ornstein: “Unconventional, But Not Improper.” American Enterprise Institute congressional scholar Norm Ornstein: “the Senate has often defined a legislative day to last more than one day. This is unconventional, but not improper.” [Media Matters, 1/4/11]
  • Washington University In St. Louis' Smith: “Both Parties” Have Used Procedure “With Great Frequency.” Steven Smith, a congressional expert and political science professor at Washington University in St. Louis: “It has been done hundreds of times, it is not improper, and it is done in order for the convenience of the Senate. ... 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.” [Media Matters, 1/4/11] A Legislative Day “May Extend Over Several Calendar Days Or Even Weeks And Months.” From

legislative day - A “day” that starts when the Senate meets after an adjournment and ends when the Senate next adjourns. Hence, a legislative day may extend over several calendar days or even weeks and months. [, accessed 1/4/11]

House Document: “The 'Legislative Day' Usually Does Not Correspond To The 24-Hour Period Comprising A Calendar Day.” According to “How Our Laws Are Made,” a document “prepared by the Office of the Parliamentarian of the U.S. House of Representatives in consultation with the Office of the Parliamentarian of the U.S. Senate” and published in 2003, when both houses were controlled by Republicans:

In the Senate, the term ''legislative day'' means the period of time from when the Senate adjourns until the next time the Senate adjourns. Because the Senate often ''recesses'' rather than ''adjourns'' at the end of a daily session, the legislative day usually does not correspond to the 24-hour period comprising a calendar day. Thus, a legislative day may cover a long period of time--from days to weeks, or even months. [“How Laws Are Made,” 7/20/03]

NY Times: Tactic “Not A New One,” Record “Legislative Day” Lasted 162 Calendar Days. From The New York Times:

The tactic of defying the calendar and keeping the Senate in the same legislative day is not a new one. According to the Senate Historical Office, Senator Robert C. Byrd of West Virginia, then the majority leader, set the record of 162 days in 1980 when he kept the Senate in the same legislative day from Jan. 3 to June 12 over filibuster changes. [The New York Times, 1/3/11]

Conservatives Have Repeatedly Mischaracterized Democratic Procedural Tactics

Right-Wing Media Falsely Claimed Reconciliation Was “The Nuclear Option.” After progressives began calling on Democrats to pass health care reform using the budget reconciliation process, right-wing media figures began falsely refer to the tactic as the “nuclear option” and characterized Democrats who previously opposed the “nuclear option” as hypocrites. In fact, “nuclear option” is a term coined by former Sen. Trent Lott (R-MS) to refer to a procedure that would be used to change Senate rules; reconciliation requires no rule changes and was used repeatedly by Republicans during the Bush administration.

  • Fox News: “Will H'Care 'Nuclear Option' Nuke Economy?” [Fox News, 3/6/10, via Media Matters]
  • Drudge: “Obama to Trigger Nuke Option on Healthcare.” [Drudge Report, 3/3/10, via Media Matters]

For more right-wing misinformation on the nuclear option, click here.

Right-Wing Media Falsely Claimed “Self-Executing Rule” Would Pass Health Care Without A Vote. In March 2010, right-wing media falsely claimed that, in the words of Fox's Bill Hemmer, the House was considering a “self-executing rule that does not require a single vote” to pass health care reform. In fact, implementing the proposed procedure would have required a majority vote.

  • Gerson Claims Dems Looking To Pass “A Law Without A Vote.” [The Washington Post, 3/17/10, via Media Matters]
  • Fox Still Baselessly Claiming Dems Plan To Pass Health Care Without A Vote. [Fox News, 3/16/10, via Media Matters]

For more right-wing misinformation on the self-executing rule, click here.