By Mark Strand and Timothy Lang
The Republicans and Democrats in the United States Senate sometimes act like the U.S. and the U.S.S.R. Each side understands that it could use a number of parliamentary procedures to wipe out its opposition, but the Senators also know they will only be in power for so long and that payback’s a…you know.
After years of threats, Senate Majority Leader Harry Reid finally triggered what the Chamber has referred to as the nuclear option to force a de facto rules change over a relatively obscure Senate procedure known as “suspension of the rules.” Unfortunately for Reid, the radiation is likely to poison the little remaining comity there is in the Senate.
Before we dive into the details, let’s just posit that this is a confusing topic fully appreciated by only a handful of parliamentary experts and insomniacs.
There are three ways the Senate governs itself: 1) the Standing Rules, first passed in 1794 and amended from time to time; 2) Standing Orders, such as unanimous consent agreements made to regulate how debates will be conducted and other orders passed by the Senate; and 3) the precedents of the Senate, which determine how a standing rule will be interpreted without changing its text. From time to time, parliamentary procedure has collided with partisan politics to stop the Senate. Now is such a time, and now as ever, Senators eager to legislate have tried to find a way to change the rules to expedite the process.
The Standing Rules of the Senate permit filibusters. This is a tactic that an opponent of a bill uses to delay it or kill it off entirely. The present problem with the filibuster is that it has become the de facto starting point for debate on the Floor of the Senate. Filibusters, however, may be ended by cloture, which cuts off debate and requires an eventual vote on the question at hand. The Senate’s Rule XXII governs cloture. Since 1975, to invoke cloture, 16 Senators must file a petition. After two days the Senate votes on the cloture motion. If it passes, there are 30 more hours of debate before the vote must be called. During the 30-hour debate, amendments must be germane and each Senator is limited to an hour of debate. To pass, a cloture vote on a normal measure must receive three-fifths of the Senate (60 votes). The high bar to break a filibuster frustrates each party when it is in control, and now the majority tries to find ever-more creative ways to try to force a change in the rules.
Technically, changing the rules of the Senate only requires a simple majority. In reality, however, rules changes themselves are usually filibustered. And unlike the three-fifths margin required for cloture on a legislative item, the Senate is so protective of its traditions that a two-thirds vote (67) is required to invoke cloture on a rules change. To enact rule changes without having to break a filibuster, majorities have considered using precedents to their advantage.
Precedents are a critical aspect of Senate procedure. Precedents can be created by a simple majority vote – as was done on October 6. A precedent can be changed when the Presiding Officer (usually an acting president pro tempore) makes a new ruling that is upheld by the Senate, or makes a ruling that is overturned by the Senate. Usually, when the minority disagrees with a particular ruling it could appeal the Presiding Officer’s decision. The majority would usually move to table the motion. A motion to table is non-debatable, voted on immediately, and requires only a simple majority to pass. Thus, if the majority of the Senate upholds the ruling, the ruling becomes a new precedent. The opposite is also true. If the majority opposes a ruling, and defeats the motion to table an appeal, the chair’s ruling is rejected, and that rejection becomes the new precedent. (Confused yet?) Thus, a majority is able to secure its preferred outcome without having to go through the arduous process of changing a rule.
The rule-change-by-precedent-change tactic – or what is not so fondly referred to as the nuclear option – occurred on October 6. Following a cloture vote, Republicans offered a motion to suspend the rules of the Senate and pass President Obama’s original jobs proposal. Now, suspending the rules is a parliamentary tactic that has not been successful since the 1940s since it requires a two-thirds vote to pass. So the Republicans clearly were not expecting that the Democrats would go along with it; it was not a serious attempt to pass the bill. Rather, it was a political effort to embarrass the majority party by making them vote against the President’s unpopular bill. (To provide some context: Republicans began using it last year as a means of debating issues that were blocked from consideration by the tactics of the Majority Leader’s efforts to “fill the amendment tree.” See the previous post on this subject – it’s also complicated. Filling the amendment tree is the equivalent of a reverse filibuster. The Majority Leader, exploiting Senate rules that grant him the right of first recognition, offers a series of meaningless amendments to block the minority from offering any substantive amendments. Reid was not the first to use this tactic, but he has been the most aggressive. So, as is usually the case, both parties had been jostling to gain political advantages by using procedural tactics.)
The Majority Leader, in an effort to protect his politically vulnerable colleagues from taking a potentially embarrassing vote, objected to the Republican motion as a dilatory tactic that should not be allowed once cloture has been invoked on a bill.
The Presiding Officer, a Democrat acting on the advice of the Senate Parliamentarian (the body’s procedural referee), ruled that the precedent of the Senate was to allow these motions, up until the 30 hours of debate after the cloture vote expired. Reid immediately appealed the ruling of the Presiding Officer and gathered 51 votes – a simple majority – to overturn the previous precedent. In effect, Reid had forced through a change in Senate rules by a simple majority vote.
Republicans had threatened to use the same legislative tactic in 2005 to force an end to the Democrats’ filibuster of President Bush’s judicial appointments. The plan was for then-Majority Leader Bill Frist to move to immediate consideration of a nomination, and when the minority objected, have Vice President Cheney issue a ruling that it was unconstitutional to require a supermajority vote on nominees. Once Cheney made the ruling, the minority would object, and Frist would have moved to table the appeal. If he had 50 votes (with the Vice President breaking the tie), a new precedent blocking filibusters on nominations would have gone into effect. At the time, there was no greater opponent to this “abuse of power” than the Minority Leader—Harry Reid. But cooler heads prevailed, and as has always been the case with other unusual ways to effect rule changes, an agreement was worked out to proceed.
The difference is that this time, Reid actually detonated the nuclear device. The incident that occasioned its use was itself rather small: The Republicans had only used the tactic in question once this year and a handful of times last year. The more consequential issue is that the majority used this tactic to force a rules change by a simple majority vote depriving the minority of their right to offer the amendment of their choosing once cloture had been invoked. As discussed earlier, the Senate has traditionally been very protective of its rules, to the point of requiring a bigger two-thirds supermajority to end a filibuster on rule change resolutions.
What does this all mean? It could mean a new round of parliamentary battles between the two parties. If a Republican is elected President next year, and if, as most pundits believe, the Republicans win control of the Senate in the 2012 election, they could point to Reid’s actions and change the filibuster rule on nominees as they had threatened in 2005. Perhaps they could eliminate the filibuster all together. Who knows? And that is the problem. No one does know what the future now holds. Normally precedents would be a guide, but if majorities are now more willing to overrule them, that may no longer be the case. The Senate rules have been governed by a kind of mutually assured destruction doctrine when it comes to the filibuster. Every Senate majority sees the filibuster as an anti-democratic threat to the nation, and every Senate minority swears it’s the only thing saving the Republic from destruction and damnation. Yet Senate majorities have always been reluctant to be too aggressive in eliminating the filibuster, because they might find themselves in the minority after the next election.
Majority Leader Reid has lobbed the first nuke, and he did it over a fairly inconsequential amendment that 95 percent of the country would probably have never heard of had he allowed it to proceed. Now he gets to reap the whirlwind.