The constitutional option to change Senate rules and procedures: a majoritarian means to over come the filibuster.

• Author: Gold, Martin B.

INTRODUCTION I. SENATE PROCEDURES GOVERNING DEBATE II. CREATION OF THE FILIBUSTER A. The "Dignified Senate" B. The Inadvertent Creation of the Opportunity To Filibuster C. The First Filibusters III. THE CONSTITUTIONAL OPTION TO AMEND FORMALLY THE STANDING SENATE RULES A. The Senate Adopts a Formal Cloture Rule (1917) 1. The "Willful Eleven" 2. The Constitutional Option Is Introduced 3. Cloture Established B. The Vandenberg Ruling and Wherry Amendment: Cloture Broadened But Made More Difficult (1948-1949) C. The Return to Cloture by Two-Thirds Present (1953-1959) 1. The Civil Rights "Gravedigger" 2. The Constitutional Option Is Re-introduced (1953) 3. Nixon's Advisory Opinion (1957) 4. The Constitutional Option Preempted: The Leadership Pushes Through a Compromise (1959) D. Three-Fifths Cloture Reform (1960-1975) 1. The "Biannual Ritual" Continues (1961-1971) 2. The Leadership Forges a Three-Fifths Compromise (1975) E. The Constitutional Option. An Action-Forcing Mechanism IV. THE CONSTITUTIONAL OPTION TO RENDER NEW RULES PRECEDENT A. A Plan of Action B. The Plan in Action 1. An 1890 Variant of the Constitutional Option by Precedent 2. Later Models To Change Senate Procedures by Precedent: Four Examples a) A Precedent To End Post-Cloture Filibusters (1977) b) A Precedent Limiting Amendments to Appropriations Bills (1979) c) A Precedent Governing Consideration of Nominations (1980) d) Precedents Concerning Rule XII's Voting Procedures (1987) V. CHANGING SENATE PROCEDURES VIA STANDING ORDERS CONCLUSION INTRODUCTION

In the United States Senate, the majority has the power to decide what will be debated, but the minority can often determine whether that debate will ever end in a final vote. No one questions that a majority of a quorum can exercise the rulemaking power. But, for almost any debatable proposition, forty-one members can prevent the Senate from taking a final vote, even though as many as fifty-nine Senators support the proposition. (1) In addition, the Senate cloture rule provides that for any change to the Senate rules (including the rules governing debate), one-third of members present and voting plus one can prevent the Senate from resolving a filibuster and taking a vote. (2) And Senate Rule V declares that these rules are perpetual: "The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules." (3) At issue is whether the Senate cloture rule is carried over from one Congress to the next by Rule V and binds successor majorities. If so, the conclusion would seem to be that absent a change of heart among a sufficient minority, even a substantial majority is helpless to overcome a filibuster on a rules change.

But what if the current Senate cloture rule is not binding? In 1979, faced with a potential filibuster on his rules-change proposal, Senator Robert C. Byrd (D-WV) raised the possibility that the U.S. Constitution provides the majority with a method for overriding the Senate's cloture rule:

The Constitution in article I, section 5, says that each House shall determine the rules of its proceedings. Now we are at the beginning of Congress. This Congress is not obliged to be bound by the dead hand of the past. .... The first Senate, which met in 1789, approved 19 rules by a majority vote. Those rules have been changed from time to time.... So the Members of the Senate who met in 1789 and approved that first body of rules did not for one moment think, or believe, or pretend, that all succeeding Senates would be bound by that Senate.... It would be just as reasonable to say that one Congress can pass a law providing that all future laws have to be passed by two-thirds vote. Any Member of this body knows that the next Congress would not heed that law and would proceed to change it and would vote repeal of it by majority vote. [I]t is my belief--which has been supported by rulings of Vice Presidents of both parties and by votes of the Senate in essence upholding the power and right of a majority of the Senate to change the rules of the Senate at the beginning of a new Congress. (4) Byrd made clear that if his rules-change proposal were filibustered, he would invoke the Senate's powers under the U.S. Constitution to force a vote. (5) Byrd never carried out his threat to use the "constitutional option." He never had to. His threat to use it was enough to break the opposition and secure a vote on his rules-change proposal. (6)

Byrd has not been alone, either in his views or his tactics. The constitutional option has been endorsed, explicitly or implicitly, by three U.S. Vice Presidents and three times, by the Senate itself. Moreover, on three occasions prior to 1979, a majority had used the threat of the constitutional option to force a formal change to the Senate Standing Rules.

Senator Thomas J. Walsh (D-MT) first advocated using the constitutional option in 1917. (7) Like Byrd, Walsh reasoned that a newly commenced Senate may disregard the rules established by a prior Senate, including the rules governing filibusters, and adopt new rules in their stead. (8) During this process, Walsh explained, the Senate would revert to the powers set forth in the U.S. Constitution and rely upon traditional parliamentary procedures, which contain procedural mechanisms to control filibusters. (9) Like Byrd's opponents, Walsh's opponents gave way once they realized that Walsh potentially had enough votes to carry out his plan, resulting in the Senate adopting its first formal role limiting debate. (10)

Similarly, in 1959, after over a dozen civil rights bills had been defeated by filibusters, and in 1975, after nearly two decades of rules-change attempts were thwarted, the minority gave way and agreed to amend the Senate cloture rule once it became apparent that a majority of the Senate was prepared to carry out the constitutional option. On all four occasions--1917, 1959, 1975, and 1979--the rules changes may never have been adopted but for the prospect that the constitutional option would be exercised.

Moreover, the historical record demonstrates that the use of the constitutional option is not limited to formal amendments of the Senate Standing Rules. Periodically, a majority has exercised the Senate's constitutional rulemaking power to establish new precedents altering Senate procedure. For example, a majority has established precedents to limit members' capacity to offer dilatory amendments, to propose legislative amendments to appropriations bills, to debate motions to proceed to nominations, and to use dilatory tactics to disrupt roll call votes. Likewise, a current majority could exercise the constitutional option to set a precedent altering the Senate's procedures governing debate. A Senator could allow debate to proceed for an extended period of time and then raise a point of order that debate had continued long enough, that any further debate would be dilatory, and that a vote must be taken within a designated time frame. The Presiding Officer could rule in favor of the point of order, and a majority could table any appeal from his ruling. This would establish a precedent limiting the length of time for debate that would bind all future Senates (until the precedent were overturned by majority vote or unanimous consent).

Finally, the Senate could adopt a Standing Order altering the Senate's procedures, including the procedures governing debate. Standing Orders are not incorporated into the text of the Standing Rules, but nonetheless bind the Senate. For example, in December 2000, the Senate adopted a standing order limiting members' ability to filibuster conference reports. The order provided that members could no longer demand the reading of conference reports that were available in writing. Similarly, a current Senate could adopt a Standing Order having the effect of limiting time for debate.

These three exercises of the rulemaking power are not mutually exclusive. To facilitate a formal amendment to the Standing Rules or the adoption of a Standing Order, a majority may seek favorable rulings from the Presiding Officer to override any filibusters.

This Article sets forth the history of the constitutional option. Part I provides a brief overview of the Senate rules governing debate. Part II details the history of the filibuster. It begins with the first Senate, where there was no concept of a minority engaging in unlimited debate, next details how the possibility for filibuster was inadvertently created, and last provides an overview of the filibuster's early use. Parts III, IV, and V of this Article relate the use of the constitutional option as a response to the filibuster. Part III details past proposals to use the constitutional option to accomplish a formal rule change. It begins with the 1917 Senate special session in which Senator Walsh first proposed the constitutional option on the Senate floor and the Senate adopted its first rule for cloture of debate; it next details the 1950s debates between Senator Richard B. Russell (D-GA) and Senator Paul H. Douglas (D-IL), which culminated in then-Senator Lyndon B. Johnson's 1959 compromise two-thirds cloture rule; and it last relates the 1960s and 1970s procedural battles that led to the establishment of the present three-fifths cloture rule in 1975. Part IV explains how the constitutional power has been and could again be invoked to allow a majority to establish a new Senate precedent on ending filibusters. And Part V explains how a past majority has used Standing Orders to alter the Senate's application of its rules and precedents governing conference reports, and how a future majority could use Standing Orders to alter the Senate's application of its rules and precedents governing filibusters.

PART I: SENATE PROCEDURES GOVERNING DEBATE

Senate procedure is built upon three main pillars. First are the Standing Rules of the Senate. Currently, there are forty-three rules...