Possible Change in the Filibuster Rule

Senate Majority Leader Harry Reid is threatening to change the filibuster rule to allow a majority to end a filibuster of presidential nominees waiting for a vote on senatorial confirmation.  Under the existing rules, such confirmation votes can be filibustered, with cloture of the filibuster requiring 60 votes.  A change in the Senate rules (like the change in the filibuster rule) can also be filibustered, and cloture here actually requires 67 votes.

There is a strong argument, however, that a majority of the Senate can change its rules, notwithstanding the Senate filibuster rule requiring 67 votes.  I have argued (with John McGinnis) that the Constitution requires a majority of the Senate to be able to change the rules:

The third and constitutionally correct view is that the Senate can choose to retain the filibuster rule, but that a majority must be able to change it. The Senate can thereby exercise its full constitutional authority to fashion rules of procedure but past majorities of the Senate cannot put current majorities in a procedural straitjacket. Thus, a change in the filibuster rule by a majority is not a “nuclear” option but instead the constitutional option – the route contemplated by our founding document.

Of course, the Senate majority’s undoubted power to change the filibuster rule does not mean that doing so would be good policy.

If the Constitution requires a majority to be able to change the rule, how would it be done?  Here is how:

The parliamentarian would presumably advise the presiding officer that cloture motions can be required to limit debate on executive branch nominees, like those to seats on the National Labor Relations Board. The presiding officer would then rule one way or the other (either agreeing with the precedent or ignoring it, as some vice presidents have in the past).

Depending on the way that goes, either Reid or Minority Leader Mitch McConnell, R-Ky., would likely force a floor vote on overturning the ruling of the chair. That vote would be key: either affirming or denying the parliamentary guidance and past precedent.

It is hard to predict how this threat to change the filibuster rule will work out.  Based on past experience, the threat often results in some kind of compromise — either before the rule is changed or afterward.

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review.  His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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Comments

  1. says

    “Of course, the Senate majority’s undoubted power to change the filibuster rule does not mean that doing so would be good policy.”

    Mike- I am still not sure that I fully understand your position on this. You view a filibuster/cloture rule itself as constitutionally unproblematic, but contend that a simple majority must be able to change the rule. But doesn’t that mean whenever there is a filibuster, a simple majority could end the filibuster just by voting to change or waive the rule? Which in effect means that there would be no filibuster rule at all?

    One could imagine a situation in which it were recognized that the majority has the power to change the rule, but there is a widely-accepted norm against doing so. I have used the term “moral entrenchment” to refer to such a situation. But such moral entrenchment depends on the understanding that it is in some sense wrong to change the rule (or to change outside of an established procedure); it is difficult to see how it could survive the exercise of the nuclear option. And ultimately, it is hard to see how the institution stops short of a situation where all legislative rules are merely guidelines that can be waived by the majority (the situation basically that obtains in the House).

    Am I missing something?

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