RSS FeedFilibuster Reformology, Part 5: The 60-Vote Option and Finale
This is the final 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 and Part 4, I canvassed the 51-vote options, including the “nuclear option” and some of its variants.
Time to wrap this thing up. In this final post, I want to mention a couple of options for reforming the filibuster which could be achieved with 60 votes in the Senate. Not much here to discuss, really, but these 60-vote options deserve mention as potential routes for reform. They could well end up serving as the mechanism for a compromise—especially if under pressure of a credible nuclear threat—such as the one reached in 1975 (see previous post), when the cloture requirement was lowered to 3/5 (from 2/3, except for cloture on amendments to the rules, which still requires 2/3).
Standing Orders and Rulemaking Statutes
Two mechanisms which could create exceptions to Rule XXII and effectively modify cloture requirements are worthy of note: rulemaking statutes and standing orders.
A rulemaking statute is a statute which, like any other statute, is passed by both houses, and which establishes special procedures for certain congressional business. Rulemaking statutes are typically used to “fast track” certain priority legislation which does not get sufficiently timely consideration under the “regular order.” The best example is the Congressional Budget Act of 1974, which created the budget reconciliation process and its famous exemption from the Senate’s 60-vote cloture rule.
To tell you about standing orders, here’s the Congressional Research Service:
Standing orders are regulations that have the force and effect of a rule, but are not contained in Standing Rules. Senate standing orders continue in force until they are altered or repealed, and may be adopted by simple resolution or by unanimous consent. Existing Senate standing orders govern a wide range of chamber business from the simple (the annual public reading of George Washington’s farewell address) to the complex (the creation and operation of the Senate Committees on Ethics and Intelligence). Senate standing orders are printed in a specific section of the Senate Manual.
So…standing orders are less formal than rules, but have the same effect as rules. What are the potential advantages of rulemaking statutes or standing orders for reforming cloture? CRS is glad we asked:
A potential advantage of using a rulemaking statute or standing order over some other parliamentary approaches to limiting consideration is that invoking cloture on these measures would require the votes of only three-fifths’ of those chosen and sworn (60 Senators if there are no vacancies), rather than the two-thirds present and voting (67, if all Senators vote) needed to get cloture on amendments to the Senate’s standing rules. The higher threshold for invoking cloture on rules changes is understood to apply only to direct amendments to the Senate’s Standing Rules, not to other measures having the effect of rules. In addition, in contrast to proposals to amend standing rules, consideration of a bill creating an expedited procedure statute or of a simple resolution creating a standing order would not require a day’s written notice.
CRS also notes that this approach would provide more flexibility than the nuclear option, which could only be launched under fairly specific parliamentary conditions. A rulemaking statute or standing order could also be targeted at, say, presidential nominations. The nuclear option, on the other hand, would probably be impossible to contain in such a targeted area—the precedent established for dodging Rule XXII cloture would inevitably be expanded into other contexts. At which point, the republic would be lost and all hell would break loose, as majority rule was visited upon the United States Senate.
Well, that does it for filibuster reformology. I’m planning to post some links to resources, including those I’ve relied on in this series, soon.
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6 Responses to “Filibuster Reformology, Part 5: The 60-Vote Option and Finale”
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So you’re saying this route would only apply to the rules in one venue (such as confirming judges), but that once the precedent had been made the same process could and likely would be applied in all other areas? But we did make the change for the budget reconciliation process and that hasn’t been used elsewhere. It seems like if there was a consensus that the change would be limited that it would stick.
But screw that because they just need to ditch all this foolishness altogether. After all even if the Senate became majority rule they still have to agree with the House to actually do anything. So for something to happen it would have to get a majority in two different elected bodies. That hardly seems crazy.
So, here’s my question for you now: I’ve seen talk by several Senators saying something has to be done about the filibuster and they plan to address it in some way at the beginning of the next session. If they are true to their word, how would you predict they go about it? It seems hard to believe they would just “go nuclear,” but I’m having trouble seeing how they could address it in a less dramatic fashion.
Here’s an article about it:
http://www.huffingtonpost.com/2010/03/10/harry-reid-filibuster-rul_n_493474.html
which suggests this is how they would do it:
To change Senate rules in the middle of the session requires 67 votes, which Democrats clearly don’t have. But changing the rules at the beginning of the 112th Congress will require the chair to declare the Senate is in a new session and can legally draft new rules. That ruling would be made by Vice President Joe Biden, who has spoken out against the current abuse of the filibuster. The ruling can be appealed, but that appeal can be defeated with a simple majority vote.
That sounds like the nuclear option to me.
First point: The nuclear option will be hard or impossible to contain. But a rulemaking statute could make changes contained to one subject area, just as it has for budget reconciliation. Also for a standing order—it could be narrowly tailored, but it wouldn’t have to be. With either of the 60-vote devices, the change would stick…until 60 votes wanted to change it back.
Second point:
Yep, that’s the procedural equivalent of the nuclear option, even if proponents don’t want to call it that. It’s the opening day gambit I discussed in the 4th post. I guess folks believe it’s a more legit maneuver than going nuclear. And maybe it is, as a matter of political strategy. Seems less vulnerable to accusations of changing the rules mid-game. Then again, I sort of doubt it will be any less likely to stir up the hornets’ nest. Republicans will cry foul, throw tantrums, and generally go nuts about it. But even so, I also doubt that anyone outside the tea parties will care much.
I have no business making predictions here, but I will say this: Based on the general dynamics of past reforms and the present situation, I would expect Democrats to make a serious threat of an opening day/nuclear gambit, and then press for compromise with a “Gang of ##” including Republican moderates, perhaps through a standing order requiring 60 votes. I would expect the compromise to end up a complicated mess, far short of paving the way for Democrats (perhaps holding a slimmer majority in 2011) to govern effectively. I would then expect pressure to mount against the compromise. And I would expect final results that made almost nobody happy. But that’s just me.
If there was a betting line on this issue (and there probably is, haha) I would bet you’re exactly right.
I think if they did go nuclear it would give life to the idea that Obama/Dems are making power grabs and are out of control and there would be some drop in support (not overwhelming, but noticeable). On the other hand failing to get things done would also negatively effect their standing. At least if they did it they could then face the electorate in 2012 on their own record of action. People can judge if what they did worked or not. As it stands they may be judged for inaction on things they wanted to act on but could not bc of R obstruction.
But Obama just by nature doesn’t like to rile people up. HCR shows he’ll do it if there’s no other option, but I think he’ll look for any other avenue.
Great series of posts, by the way. Very informative.
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