Filibuster Reformology, Part 4: 51-Vote Variants

June 17, 2010

This is the fourth post in a 5-part series on the procedural mechanics of filibuster reform. In Part 1, I considered whether the Constitution mandates majority-rule proceedings in the Senate. In Part 2, I looked at the 67-vote option for reform under Senate Rule XXII. In Part 3, I canvassed the 51-vote, “nuclear” option.

We need to tie up some loose nukes from last time before moving on to the 60-vote options for filibuster reform in the final post. Here’s a quick summary of the important steps in the 51-vote scenario, the launch sequence, as it were, for the nuclear option:

  1. Majority moves to break with Senate rule or precedent (e.g., by raising a point of order that the supermajority-cloture requirement is unconstitutional, or that further debate on a certain pending measure would be “dilatory”).
  2. Chair (VP or president pro tem) breaks with precedent and issues ruling to close debate on the pending measure.
  3. Minority moves to appeal the chair’s ruling; the question is presented on appeal to the whole Senate; debate begins on the appeal.
  4. Majority moves to table the appeal from the chair (a.k.a., moves the furniture). No debate; straight to up-or-down vote on tabling motion.
  5. Majority votes to table the appeal, upholding the ruling of the chair, ending the filibuster.
  6. Majority proceeds to up-or-down vote on pending measure, setting new precedent for breaking filibusters with a simple majority of senators.

Last time I mentioned that there could be many variants on this basic design, and that the key to all of them was in step 4, the motion to table the appeal from the chair, since that motion is not debatable and is decided by simple majority. Now I’ll say a little about a few of the variants.

The Constitutional Option

In my estimation, most of the distinctions between 51-vote variants do not make all that much difference. If you understand how moving the furniture (tabling the appeal from the chair) determines the result, you can see that it will work in pretty much any context where the necessary ingredients are operative. It really boils down to the intensity of the majority’s commitment to ending the filibuster era. But that’s strategy talk—you can read about that elsewhere.

So what about those distinctions? The phrase “constitutional option” is sometimes used interchangeably with “nuclear option,” and sometimes distinguished from it. I think the phrase “constitutional option” is best reserved for a scenario in which a majority of senators invokes the Constitution to claim its right to change the rules or depart from an established Senate precedent, or to claim that 60-vote cloture is unconstitutional.

Raising the constitutional question has some (relatively slight) consequences for procedure. According to the Congressional Research Service (pdf), “Under Senate precedents, the presiding officer may not rule on a constitutional point of order and instead must submit the point of order to the full Senate for a vote.” Thus the constitutional question could hop over step #2 in the launch sequence, straight into the filibuster-loving arms of the full Senate, before the furniture is laid out for the pivotal event, the tabling motion. The only thing to table at this stage would be the majority’s own motion. You want to table the other team’s motion, not your own.1

But even so, it would be relatively simple for the majority to rearrange the furniture in their favor. The Chair would only need to break two rules/precedents instead of one. The Chair could rule that the supermajority-cloture rule did not apply to consideration of constitutional points of order; or that in this narrow context, the Chair was permitted to decide the constitutional question. The minority could appeal either ruling, but the appeal could then be tabled by the majority. At that point, we’d be back to step #1, and the Chair could decide the actual constitutional question, followed by appeal, followed by tabling. Isn’t this fun?

The Opening Day Gambit

The “opening day” 51-vote variant is probably now the most actively discussed scenario for filibuster reform. Maybe that’s because there have been several such attempts in Senate history. Of course, they’ve all failed. Reformers came really close in 1975, tabling a point of order that had been raised against a proposal for majority cloture. But—as part of the deal that lowered the cloture requirement to 3/5—it reversed itself on reconsideration the following week and never voted on the proposal for majority cloture.

There is some dispute about whether this sequence of events somehow established a precedent in favor of majority cloture, even though the tabling vote that implicitly supported the majority cloture position was reversed. So…that’s an implicit precedent, explicitly reversed. Seems pretty weak to me. I suppose it creates room for argument, which creates some political cover for the majority. But ultimately, there is not, and could not be, any precedent in the world sanctified enough to protect the majority from accusations that it is betraying the republic.

Strategic considerations aside, the whole rationale behind the opening day gambit is a bit contrived. Its proponents argue that, on the first legislative day of a new term of Congress, the Standing Rules of the Senate have no effect, because they have not been adopted by the new majority. And so the new majority (or an old majority reconstituted) could adopt new Standing Rules, including reformed cloture rules.

The problem is, it has never been Senate practice to re-adopt its rules with every new term. Rather, the Senate has conducted itself as a continuous body, just as it was designed to do. And, though I don’t think it would help to point this out in any kind of formal setting, the whole reason they’re called “Standing Rules” is exactly this. They don’t expire at the end of the term. See also Rule V (“The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.”).

In my estimation, there’s nothing constitutionally special about opening day in the Senate. But it’s as good as any other day, and I don’t doubt there are good strategic reasons for reformers to act on it—but that’s a matter for another blog.

  1. As usual, there are different ways this could shake out. E.g., the minority might be the one to raise the constitutional point of order. There are several important precedents from Senate history that I’ve decided not to get into. They’re related succinctly in this CRS report (pdf), though, and I’ll discuss their significance another time, if anyone asks about them in comments. [↩]
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3 Responses to “Filibuster Reformology, Part 4: 51-Vote Variants”

  1. Filibuster Reformology, Part 5: The 60-Vote Option and Finale : Organon on June 18th, 2010 9:30 pm

    [...] Senate. In Part 2, I looked at the 67-vote option for reform under Senate Rule XXII. In Part 3 and Part 4, I canvassed the 51-vote options, including the “nuclear option” and some of its [...]

  2. Lee on June 19th, 2010 1:48 pm

    Interesting. So the Senate doesn’t have any kind of standard vote at the beginning of each term about rules? I thought I remembered reading that somewhere. Is it an urban legend?

  3. Jim Hufford on June 19th, 2010 7:57 pm

    Maybe a legend, definitely false. But there have been several opening day attempts to institute majority cloture over the decades (since cloture was adopted in 1917). For all I know, someone may try it every two years. But it has never worked (although people dispute the meaning of the 1975 episode, as I wrote in my post). Nevertheless, it would only have to work once! And it could, as soon as a majority of senators and the VP decided to make it happen.

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