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
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. …