At first, Senator Jim DeMint starts off with a few points of parliamentary inquiry which seem rather dull, but like any good prosecutor, DeMint is carefully building a case — and his target is a particularly noxious clause in Harry Reid’s ObamaCare bill. On page 1020 of the text, DeMint discovers that Reid has created a rule binding future sessions of Congress to a supermajority requirement to overrule the bill’s rationing board, the Independent Medical Advisory Board, whose purpose (stated on page 1001) is to “reduce the per capita rate of growth in Medicare spending.” DeMint demands an explanation of how the Majority Leader can allow legislation to alter the rules of the Senate, both on the floor and in committee. The Weekly Standard has the key portion of the transcript:
There ‘s one provision that I found particularly troubling and it’s under section C, titled “Limitations on changes to this subsection.”
And I quote — “It shall not be in order in the Senate or the House of Representatives to consider any bill, resolution, amendment, or conference report that would repeal or otherwise change this subsection.”
This is not legislation. It’s not law. This is a rule change. It’s a pretty big deal. We will be passing a new law and at the same time creating a Senate rule that makes it out of order to amend or even repeal the law.
I’m not even sure that it’s constitutional, but if it is, it most certainly is a Senate rule. I don’t see why the majority party wouldn’t put this in every bill. If you like your law, you most certainly would want it to have force for future Senates.
I mean, we want to bind future Congresses. This goes to the fundamental purpose of Senate rules: to prevent a tyrannical majority from trampling the rights of the minority or of future Congresses.
As I recall, Congress is not allowed to pass rules that bind future Congresses. In the House, the rules have to be offered and approved at the beginning of each session. The Senate has standing rules, but they are not in the form of law that requires further legislation to alter — legislation that would be, under this bill, out of order even to introduce. It basically makes Harry Reid the dictator of the Senate, not just now, but in perpetuity.
Is it unconstitutional? The ability of each Congress to govern itself is certainly strongly implied in Article I, Section 5:
Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member.
Clearly the founders did not intend that to mean that the first Congress could set the rules in perpetuity, and indeed as DeMint points out, rule changes have been made consistently without resorting to legislation to accomplish them because of the orders of a prior Congress. Put another way, the elected representatives of today should not have greater authority than those who will follow them. Any attempt to pass this into legislation aggrandizes the power of this Congress at the expense of those that follow.
And as DeMint points out, it sets a very dangerous precedent regardless of which party is in power. What will be next — a Republican Congress declaring any future bill that increases taxes out of order? Would Democrats sit still for that, too?
Update: Gabriel Malor says the issue isn’t constitutionality, but the substance of what it protects. Be sure to read it all.