The Constitutional Option to Change Senate Rules and Procedures: A Majoritarian Means to over Come the Filibuster

By Gold, Martin B.; Gupta, Dimple | Harvard Journal of Law & Public Policy, Fall 2004 | Go to article overview

The Constitutional Option to Change Senate Rules and Procedures: A Majoritarian Means to over Come the Filibuster


Gold, Martin B., Gupta, Dimple, Harvard Journal of Law & Public Policy


     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. … 

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The Constitutional Option to Change Senate Rules and Procedures: A Majoritarian Means to over Come the Filibuster
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