The conventional option.

• Author: Roger, Gregory
• Position: Filibuster reform

Abstract

The filibuster in the United States Senate effectively imposes a supermajority vote requirement to pass any legislation. Both supporters and critics of the filibuster agree that any filibuster reform would require extraordinary measures. In contrast to this consensus, this Article describes a method we call the "conventional option, " which allows the filibuster to be reformed by a simple majority of senators at any time using ordinary Senate procedures. As we show below, a majority of senators using the conventional option (1) cannot be filibustered; (2) can act on any day the Senate is in session (not just at the beginning of a new Congress); and (3) does not need to invoke the Constitution. In fact, this Article shows that both the U.S. House of Representatives and the Senate have limited filibustering in the past by using the conventional option described here.

Table of Contents INTRODUCTION I. THE CONVENTIONAL OPTION A. The Rules of the Senate Filibuste 1. Filibustering in the Senate 2. The Senate Rules 3. Senate Rule Interpretation B. How to Use the Conventional Option 1. Repeal the Traditional Notion that the Senate Is a Continuing Body 2. Introduce a Previous Question Motion 3. Transform the Motion to Suspend the Rules 4. Convert Ride XXII Into a Simple Majority Motion 5. Expand the Right to the Yeas and Nays C. Comparison of Conventional Strategies II. A BRIEF HISTORY OF FILIBUSTER REFORM IN CONGRESS A. Reforming the Filibuster in the House 1. Transforming the Previous Question Motion, February 1811 2. Filibustering in the House, 1811-1889 3. The Revolution in the House, 1889-1894 B. Reforming the Filibuster in the Senate 1. Limits on Senate Filibustering Before 1917 2. Cloture and Reform in the Senate, 1917-1949 3. The Long Debate on Cloture Reform, 1949-1975 4. The Modern Senate Filibuster, 1975-Present CONCLUSION INTRODUCTION

Senator Harry Reid (D-NV) was fed up. Reid, the majority leader for the Democrats in the United States Senate, (1) had hoped that the Senate would confirm three nominees to the D.C. Circuit Court of Appeals. (2) However, the Republican minority was filibustering their confirmation. (3) Republican obstruction against these nominations was part of a broader strategy of forcing an unprecedented number of votes on whether the Senate should end filibusters using the Senate's "cloture" rule. (4) Since a three-fifths majority is necessary to invoke cloture, this increased use of the filibuster effectively imposes a supermajority vote requirement to approve nominations or pass most legislation in the Senate. (5) In the past,

Reid vowed to "change the rules and make the filibuster meaningful." (6) But Reid had refrained from implementing any reform apart from limited changes at the beginning of the 112th and 113th congressional terms. (7)

On Thursday, November 21, 2013, however, Reid made good on his threat to change the rules by setting in motion what has become colloquially known as "the nuclear option." [8] By a vote of fifty-two to forty-eight,

senators enacted a new precedent allowing a simple majority of the Senate to limit debate for all nominations except those to the U.S. Supreme Court. (9) The term "nuclear option" dates at least as far back as 2005, when, ironically, then Senate Republican majority leader Bill Frist (R-TN) threatened to use "the nuclear option" to prevent the filibustering of President Bush's judicial nominees. (10) The "nuclear option" then, as now, was based on a proposal made in a law review article written by Martin Gold and Dimple Gupta that argued that a simple majority in the Senate has a limited "constitutional option" to change the existing filibuster rules. (11)

Terms like "nuclear" and "constitutional" reflect a consensus that any reform of the filibuster would require extraordinary and unprecedented measures. This consensus supports a conclusion shared by many that it would be "rude" (12) for a majority of Senators to reform the filibuster because it would "change[] ... the rules in the midst of a game." (13) Thus, Gold and Gupta emphasized that a majority of senators use the "constitutional option" at the beginning of a congressional term, when, arguably, a new Senate can jettison the old rules and impose new ones to

govern the term. (14) Others have tried to support changes to the filibuster by appealing to the Constitution's "implicit directive of simple majority rule." (15) Indeed, prior to Sen. Reid's use of the nuclear option, a lawsuit filed by the left-leaning public interest group Common Cause alleged that the modern Senate filibuster is unconstitutional because it is "inconsistent with the principle of majority rule" implied by various provisions of the Constitution. (16)

In this Article, we argue against the consensus that filibuster reform by a majority of senators is (1) extraordinary, (2) unprecedented, and therefore (3) requires an appeal to Constitutional authority. Indeed, we take issue with the term "nuclear option" insofar as it has been defined as any option that allows a majority of senators to reform the filibuster without the consent of the minority. Instead, we show that filibuster reform by a majority of senators (1) only requires quite ordinary measures, (2) has been done extensively in the past, and, accordingly, (3) should not be viewed as improper or indecorous. Indeed, as we show below, the "nuclear option" as used by Sen. Reid can be understood as a "conventional option," one that has been used throughout the history of the Senate and the House of Representatives.

In Part I, we explain the ordinary procedures a majority of senators can use to reform the filibuster at any time. These procedures, which we call the conventional option, utilize the rules and procedures that govern rule interpretation in the Senate. As we show below, the conventional option is conventional in the sense that it only relies upon the ordinary rules and precedents of the Senate. (17) It does not require the cooperation of a supermajority of Senators. It does not require Senators to wait for the beginning of a new Congress. It does not require an appeal to the Constitution.

We further show that the conventional option is quite versatile and can be used to enact a number of reforms. We provide five such potential reforms that a majority of senators could enact through the conventional option. (18) Indeed, we show that the process used by Sen. Reid to abolish the filibuster for judicial nominees is far from optimal and that better alternatives are available. (19)

In Part II, we further demonstrate that the conventional option is "conventional" in another important sense. The rhetoric surrounding the "nuclear option" suggests that any reform of the filibuster by a Senate majority would be unprecedented, or at least a significant departure from the historic practices and procedures of the Senate. But, as we discuss in Part II, the procedures that comprise the conventional option have been used throughout the history of the House and Senate to limit filibustering. Indeed, it has been the most common, conventional method of reforming the filibuster. (20) As we discuss below, the House of Representatives, in fact, abolished the filibuster using the conventional option we discuss in this Article. (21)

Our goal in writing this Article is not to criticize or defend the filibuster. Instead, our goal is to show that the recent actions of the Democratic majority to abolish the filibuster for judicial nominees should not be seen as unprecedented, extraordinary, or unseemly. That view is not only incorrect, but it presumes that the filibuster itself is a normal procedure that senators are, for the most part, powerless to change. However, as we show below, the filibuster is not, nor has to be, an inviolable part of the Senate. More importantly, the existence of the conventional option demonstrates that the key obstacle to filibuster reform is not the Senate rules, but the reluctance of a majority of senators to enact it. Accordingly, we hope that by showing how simple it is for a majority to change the filibuster at any time, public debate will focus squarely on whether filibustering as currently practiced in the Senate advances or harms the public interest. Paradoxically, senators may be more likely to arrive at bipartisan compromises on Senate process once they fully acknowledge the extent of the Senate majority to reshape the rules of the Senate without minority party consent.

1. THE CONVENTIONAL OPTION

   This Part provides a guide for reforming the modern filibuster in the Senate, which we call the conventional option. Our guide shows how the conventional option allows a simple majority of senators to reform the filibuster any day the Senate is in session without having to appeal to constitutional authority. As shown below, the conventional option we describe utilizes commonly used procedures of rule interpretation in the Senate.

   1. The Rules of the Senate Filibuster

      1. Filibustering in the Senate

      For the sake of clarity, we define filibustering in a legislature as the threat or use of delay to obstruct an event for strategic gain. (22) Understood in this broad sense, a legislator can filibuster by making dilatory motions, by proposing meaningless amendments, by refusing to vote en masse, or by making long speeches. (23) As defined, filibustering is not unique to the Senate. It has occurred in dozens of state and international legislatures. In fact, and as we discuss later in this Article, filibustering was once pervasive in the House of Representatives. (24)

      The traditional response to filibustering is a war of attrition. In these contests, the majority forces the obstructionists to remain on the floor of the chamber and actively consume time. The winner is the side that lasts the longest, but both sides lose time and sleep in the process.

      A second response is cloture, where the majority attempts to limit the duration of floor...