Filibuster Reformology, Part 2: The 67-Vote Option
This is the second 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 (it doesn’t) and categorized three options for reform: the 67-vote option, the 51-vote option, and the 60-vote option.
Before we dig into the mechanics, we need a general introduction to the seamy underworld of Senate procedure. The Congressional Research Service (pdf) will ferry us in:
The Senate is governed by the Constitution, the Standing Rules of the Senate, permanent Standing Orders of the Senate (adopted in prior Congresses), temporary Standing Orders of the Senate (adopted at the beginning of each Congress), and statutes. It is also governed by precedents, which are decisions made by the presiding officer of the Senate, or the body itself, concerning how its rules operate in practice. [...] Precedents have tremendous weight in deciding parliamentary questions in the Senate, and the presiding officer, whether the Vice President or a majority party Senator, is expected to be guided by these precedents when ruling on a pending question.
The Standing Rules of the Senate would seem to be the obvious place to start if a Senator desired to change that chamber’s procedures. If there is no substantial opposition, the Standing Rules of the Senate can be changed by a simple majority vote; there is no supermajority requirement for changing the rules. If, however, there is opposition to the proposed rules change and if opponents seek to prevent a final vote on the proposal by extended debate and amendment, known as a filibuster, a supermajority requirement does exist for invoking cloture, or ending debate, on a rules change. Senate Rule XXII, which sets out the process for invoking cloture, requires that two-thirds of those present and voting (67 if all Senators participate) vote to invoke cloture on a rules change.
Okay, let’s unpack that a little. First, note that the filibuster is a consequence of the fact that, in its default mode, the Senate allows unlimited debate (and amendment) on any measure. If you want to get to a vote, you have to ask for one. If no senator objects, you can have a vote right away. But if even a single senator objects, you get nothing. At that point you can either give up, try again later (with no guarantee of different outcome), or petition for cloture under Rule XXII.1
“Cloture,” for the uninitiated, means bringing debate to a close. In most circumstances, it is achieved (or “invoked” in the lingo) by an affirmative vote of 3/5 of senators “duly chosen and sworn,” or 60 votes. Invoking cloture on a given measure (a bill, amendment, or whatever) has the effect of breaking a filibuster (on that measure) and allows the Senate to proceed to an “up-or-down” vote, decided by simple majority.
Reforming the filibuster means changing the requirements for cloture; and that means amending, superseding, or sidestepping Rule XXII.
A motion to amend the Senate’s rules can be filibustered like anything else that isn’t specifically exempt from the normal rules (as is the budget reconciliation process). But cloture on a motion to amend the rules requires 2/3 of Senators “present and voting,” or 67 votes.
So, under the normal rules and precedents of the Senate as they are currently understood, it would take 67 votes to change the cloture rule. That’s pathway number one to reform—the most straightforward of the three: the “Rule-22 Option.” Get 67 votes in the U.S. Senate, and you can rewrite the rules.
Obviously that’s a tall order. Next we’ll look at reform options with lower thresholds for votes, but much higher thresholds for intrigue. Head for the shelter, everyone. We’re going nuclear.
Filibuster Reformology, Part 1: The Underview
This is the first installment of a 5-part series I’ll be posting this week on the procedural mechanics of filibuster reform.
A lot of good stuff has been written about filibuster reform over this past year, by people who really know what they’re talking about. Notably, political scientists Greg Koger and Jonathan Bernstein each have an excellent series of blog posts on the subject. That’s what you want to read for the history, theory, strategy, and politics of the filibuster and for evaluation of reform proposals. In short, go there for all the important and interesting stuff.
But I’m also semi-fascinated with the dry weeds of parliamentary procedure that constrain the options for reform. So I’ve set out to distill, with help from the Congressional Research Service (CRS), what are in my view the key procedural mechanics of Senate self-governance. My primary objective in this series is to chart out the available options, with a little gloss here and there, though by no means do I intend to exhaustively classify all the permutations of those options.
Cutting to the chase, there are in my estimation three broad procedural options for ending (or mending) the filibuster: (A) the 67-vote option, (B) the 51-vote option, and (C) the 60-vote option. The 67-vote option is a straightforward amendment of the Senate Rules, in accordance with all the strictures of the existing rules and conventions. The 51-vote option is a trickier, more radical, and more contentious route often referred to as the “nuclear option” or “constitutional option.” And lastly, the 60-vote option is one involving any number of less dramatic maneuvers which would effect correspondingly less dramatic change.
I’ll discuss each of these options over the next three posts. But for the remainder of this one, let’s get the constitutional “underview.”
The Rules of Proceedings clause does not require that the Senate exercise majority rule, but it does preserve the right of the majority to determine the rules.
Article I, section 5 gives each chamber of Congress exclusive control over its own procedural rules: “Each House may determine the rules of its proceedings….” This is known as the Rules of Proceedings clause, and it is an important component of the constitutional framework of separated powers.
One might be tempted to read majority rule into the clause. After all, the text does not specify a supermajority requirement, and the framers knew how to require a supermajority when they wanted one. So, by negative inference, one could argue that the Constitution gives the power to set the rules of the Senate to a simple majority of senators, and thus any supermajority requirement imposed on top of that should be unconstitutional.
But one should resist the temptation. People intuitively dislike the idea that one Senate majority could impose a supermajority requirement that would hobble future majorities without their consent. But the Constitution gives rulemaking authority to the whole Senate, not just the Senate majority. And crucially, unlike the House of Representatives, the Senate was conceived and constituted as a continuous body, with senators serving relatively long, staggered terms.
Ultimately we must accept the following two propositions: (1) the Constitution does not instruct as to how to resolve the interpretive dispute over whether majority rule is required wherever a supermajority is not specified; and (2) the Constitution does not directly empower any entity outside the Senate to regulate the Senate’s interpretation of the Rules of Proceedings clause.
Of course, none of that means the Senate must adopt supermajority rules—just that it may; and if it does, our only recourse to change them is through the political process. In U.S. v. Ballin, 144 U.S. 1 (1892), the Supreme Court wrote:
The constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. But within these limitations all matters of method are open to the determination of the house, and it is no impeachment of the rule to say that some other way would be better, more accurate, or even more just. It is no objection to the validity of a rule that a different one has been prescribed and in force for a length of time. The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the house, and, within the limitations suggested, absolute and beyond the challenge of any other body or tribunal.
I emphasize the last bit because it shows that, in a roundabout sort of way, the Constitution ultimately does make it the prerogative of the majority to set the rules of procedure—even when the majority adopts supermajority procedures for a time. That follows from what I said above: just as no one outside the Senate is empowered to impose majority rule on Senate proceedings, so no one outside the Senate is empowered to enforce the Senate’s supermajority rules.
The key here, as with so many aspects of our Madisonian system, is that the relevant constitutional actors, senators, are constrained not so much by the dictates of the Constitution as by the imperatives of politics.
Filibuster reform isn’t just about whether 67-, 51-, or 60-vote cloture would be best for the country, best for Congress, or most faithful to our democratic ideals. It’s about the power each individual senator has over the process. And for individual senators, the politics may cut both ways.
The Procedural Road Ahead
With Senator Ben Nelson (D-NE) pledging his support today, the Democrats have reached the magic number (60) to approve a cloture motion and end debate on the health reform bill, the Patient Protection and Affordable Care Act. Actually, three successive cloture motions must be approved to get to three separate votes: one to substitute the reform bill for the “shell” bill, HR 3590; one to pass the manager’s amendment that Majority Leader Harry Reid released today; and one more to pass the final bill. So that’s 6 votes: three for cloture, each requiring a 60-vote supermajority; and three “up-or-down” votes requiring a simple majority. Between each cloture vote and its corresponding simple-majority vote, the Republicans can force 30 more hours of “debate.” The first cloture vote will be held at 1 a.m. on Monday.
That puts the final vote on Thursday evening, 12/24. Maybe Santa will recognize senators’ efforts by upgrading their stocking stuffers to lumps of “clean” coal.
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