Newsletter 11-2014
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The Filibuster and Reconciliation: the Future of Majoritarian Lawmaking in the U.S
The Filibuster and Reconciliation: The Future of Majoritarian Lawmaking in the U.S. Senate Tonja Jacobi†* & Jeff VanDam** “If this precedent is pushed to its logical conclusion, I suspect there will come a day when all legislation will be done through reconciliation.” — Senator Tom Daschle, on the prospect of using budget reconciliation procedures to pass tax cuts in 19961 Passing legislation in the United States Senate has become a de facto super-majoritarian undertaking, due to the gradual institutionalization of the filibuster — the practice of unending debate in the Senate. The filibuster is responsible for stymieing many legislative policies, and was the cause of decades of delay in the development of civil rights protection. Attempts at reforming the filibuster have only exacerbated the problem. However, reconciliation, a once obscure budgetary procedure, has created a mechanism of avoiding filibusters. Consequently, reconciliation is one of the primary means by which significant controversial legislation has been passed in recent years — including the Bush tax cuts and much of Obamacare. This has led to minoritarian attempts to reform reconciliation, particularly through the Byrd Rule, as well as constitutional challenges to proposed filibuster reforms. We argue that the success of the various mechanisms of constraining either the filibuster or reconciliation will rest not with interpretation by † Copyright © 2013 Tonja Jacobi and Jeff VanDam. * Professor of Law, Northwestern University School of Law, t-jacobi@ law.northwestern.edu. Our thanks to John McGinnis, Nancy Harper, Adrienne Stone, and participants of the University of Melbourne School of Law’s Centre for Comparative Constitutional Studies speaker series. ** J.D., Northwestern University School of Law (2013), [email protected]. -
Parliamentary Rule: the US Senate Parliamentarian and Institutional Constraints on Legislator Behaviour
Parliamentary Rule: The US Senate Parliamentarian and Institutional Constraints on Legislator Behaviour JAMES I. WALLNER This article analyses the extent to which institutional rules constrain member behaviour in the United States Senate by examining the evolution of its parliamentarian. Interestingly, the US Senate parliamentarian has received surprisingly little scholarly attention given the important role she performs in the legislative process. The subsequent analysis thus provides a new understanding of the parliamentarian’s role in the legislative process and the interplay between institutional rules and member behaviour in the Senate. To this end, the following analysis is situated within the context of the two primary theoretical approaches to understanding how institutional rules constrain member behaviour: path dependency and majoritarianism. These contrasting approaches provide expectations about the extent to which members will defer to the parliamentarian’s interpretation of Senate rules rather than exercising their own discretionary control over those rules. Examining the evolving relationship between the parliamentarian and individual members affirms the centrality of institutional rules as a constraint on member behaviour over the past several decades. Yet such an examination also yields two surprising, and potentially contradictory, observations. First, individual senators in both parties have increasingly deferred to the parliamentarian to interpret the Senate’s rules. This is sur- prising given that the Senate has simultaneously become more individualistic, partisan, and ideological over the same period. Second, the majority party has recently disregarded the norm of parliamentary constraint reflected in past practice and demonstrated a will- ingness to ignore Senate rules when doing so was necessary to achieve legislative success. -
The Tax Legislative Process: a Byrd's Eye View
University of Chicago Law School Chicago Unbound Journal Articles Faculty Scholarship 2018 The Tax Legislative Process: A Byrd's Eye View Ellen P. Aprill Daniel Hemel Follow this and additional works at: https://chicagounbound.uchicago.edu/journal_articles Part of the Law Commons Recommended Citation Ellen Aprill & Daniel Hemel, "The Tax Legislative Process: A Byrd's Eye View," 81 Law and Contemporary Problems 99 (2018). This Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in Journal Articles by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. APRILL_HEMEL_FINAL (DO NOT DELETE) 5/16/2018 4:54 PM THE TAX LEGISLATIVE PROCESS: A BYRD’S EYE VIEW ELLEN P. APRILL* AND DANIEL J. HEMEL** I INTRODUCTION The year 2017 was, among other distinctions, the year of the Byrd rule. This once-obscure Senate procedural provision—on the books since 1985 but only recently the stuff of page one news1— featured prominently in several failed attempts to repeal the Affordable Care Act in the spring and summer. Then again at year’s end, the Byrd rule played a central role in the successful effort to rewrite large swaths of the Internal Revenue Code. While the Byrd rule has influenced the legislative process in the past, never before has it drawn so much attention from the mainstream and trade press, and never before has it shaped so consequential a law in such a significant way. One theme that runs throughout this article is that when it comes to the budget math mandated by the Byrd rule, numbers can obscure the truth. -
1 Parliamentary Rule: the Origins, Development, and Role of The
Parliamentary Rule: The Origins, Development, and Role of the Senate Parliamentarian in the Legislative Process James Wallner Catholic University of America – Department of Politics Prepared for delivery at the Annual Meeting of the Congress & History Conference, Providence, Rhode Island, June 8-10, 2011 1 Parliamentary Rule: The Origins, Development, and Role of the Senate Parliamentarian in the Legislative Process “I talked earlier about all the people who are helpful to us. Some people I didn’t mention who are so vital to us, Mr. President, are the Parliamentarians. The Senate rules are extremely complex. I know them pretty well, but I am amateur compared to our Parliamentarians who interpret the precedents and Rules of the Senate and advise the Presiding Officer anytime we are in session. Their work is vital to the well-oiled Senate we have.” -Majority Leader Harry Reid February 7, 20091 Introduction The literature on Congress includes a theoretically diverse collection of approaches to understanding the legislative process. The most prominent approaches focus on the political behavior of representatives and senators and the strategic calculations they make to achieve their goals in the institution. According to these behavioral and rational choice approaches, member action shapes Congress as an institution and determines the legislative process within it. More recently, a historical-institutional approach has proliferated in the literature which focuses on how Congress itself shapes the goal-driven behavior of its members and the legislative process. Yet regardless of the approach employed, the literature on congressional decision-making shares a common interest in the nature of conflict within Congress and the manner in which it is resolved. -
Examining the Filibuster Hearings
S. Hrg. 111–706 EXAMINING THE FILIBUSTER HEARINGS BEFORE THE COMMITTEE ON RULES AND ADMINISTRATION UNITED STATES SENATE ONE HUNDRED ELEVENTH CONGRESS SECOND SESSION April 22, 2010; May 19, 2010; June 23, 2010; July 28, 2010; and September 22 and 29, 2010 ( VerDate Nov 24 2008 14:23 Dec 03, 2010 Jkt 062210 PO 00000 Frm 00001 Fmt 6011 Sfmt 6011 C:\DOCS\62210.TXT SHAUN PsN: DPROCT EXAMINING THE FILIBUSTER VerDate Nov 24 2008 14:23 Dec 03, 2010 Jkt 062210 PO 00000 Frm 00002 Fmt 6019 Sfmt 6019 C:\DOCS\62210.TXT SHAUN PsN: DPROCT S. HRG. 111–706 EXAMINING THE FILIBUSTER HEARINGS BEFORE THE COMMITTEE ON RULES AND ADMINISTRATION UNITED STATES SENATE ONE HUNDRED ELEVENTH CONGRESS SECOND SESSION APRIL 22, 2010; MAY 19, 2010; JUNE 23, 2010; JULY 28, 2010; AND SEPTEMBER 22 AND 29, 2010 Printed for the use of the Committee on Rules and Administration ( Available via the World Wide Web: http://www.fdsys.gov U.S. GOVERNMENT PRINTING OFFICE 62–210 WASHINGTON : 2010 For sale by the Superintendent of Documents, U.S. Government Printing Office, http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center, U.S. Government Printing Office. Phone 202–512–1800, or 866–512–1800 (toll-free). E-mail, [email protected]. VerDate Nov 24 2008 14:23 Dec 03, 2010 Jkt 062210 PO 00000 Frm 00003 Fmt 5011 Sfmt 5011 C:\DOCS\62210.TXT SHAUN PsN: DPROCT COMMITTEE ON RULES AND ADMINISTRATION * CHARLES E. SCHUMER, New York, Chairman DANIEL K. INOUYE, Hawaii ROBERT F. BENNETT, Utah CHRISTOPHER J. -
How to Steal a Trillion: the Sesu of Laws About Lawmaking in 2001 Charles Tiefer University of Baltimore School of Law, [email protected]
University of Baltimore Law ScholarWorks@University of Baltimore School of Law All Faculty Scholarship Faculty Scholarship Summer 2001 How to Steal a Trillion: The sesU of Laws about Lawmaking in 2001 Charles Tiefer University of Baltimore School of Law, [email protected] Follow this and additional works at: http://scholarworks.law.ubalt.edu/all_fac Part of the Law and Politics Commons, and the Legislation Commons Recommended Citation How to Steal a Trillion: The sU es of Laws about Lawmaking in 2001, 17 J.L. & Pol. 409 (2001) This Article is brought to you for free and open access by the Faculty Scholarship at ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in All Faculty Scholarship by an authorized administrator of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. How to Steal a Trillion: The Uses of Laws About Lawmaking in 2001 Charles Tiefer" I. Introduction: Laws Directing Lawmaking in 2001 II. Background: From the Rulemaking Clause to Chadha and City of New York A. The Barriers to Enactment B. Delegation and its Discontents C. Power, Discourse, and Symbolism III. Facilitating the Controversial 2001 $1.3 Trillion Tax Cut A. Reconciliation Tax Cutting in 2001 1. 1974 through 2000: Reconciliation for Deficit Control 2. 2001: Reconciliation Outside Deficit Control 3. The Misguided Product of the Reconciliation Conference B. Mter the 2001 Tax Cut: Reforming Budget Act Reconciliation 1. The Upcoming Need for Reform 2. Why and How to Reform IV. Trade Fast Track Renewal in 2001: Laws About Two-Level Lawmaking A.