The New Filibuster Rule

The Democrats have passed a new rule that prevents the filibuster from being used to block confirmation votes for all presidential nominations, except Supreme Court Justices. In passing this rule, the Democrats used the Constitution or Nuclear Option to change the rules.  The Senate rules require 67 votes to end a filibuster of a change in the Senate rules, which would have prevented the Democrats from changing the filibuster rule.  But many people, including yours truly, argue that this Senate rule cannot constitutionally prevent a majority of Senators from changing the filibuster rule. Hence, the name the Constitutional Option.

But this maneuver has also been termed the Nuclear Option for another reason: its use has been deemed to be like a nuclear attack, which will lead to incredible retaliation. When it has been used in the past, it has almost always led to a compromise shortly afterward to avoid the bitter relations that would have otherwise resulted. So I would not be surprised to see some kind of compromise.

Whether or not a compromise occurs, however, this change is likely to have one enduring consequence. It will be used when the Republicans control the Presidency and the Senate, and the Democrats seek to filibuster Republican nominees. People may remember that the practice of filibustering lower court judicial nominees was established by the Democrats in the early years of the Bush Administration. The new rule, unless changed, will prevent them from doing so again.

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.

Read More

The Filibuster: A (Reluctant) Madisonian Case

As the Senate filibuster braces to receive what may be a mortal wound via the invocation of the “nuclear option” on executive nominees, there are at least 413 reasons to wish the dilatory tactic ill—and one compelling constitutional reason to keep it.  The former is the number of times cloture motions to end debate have been filed since 2007 alone, a measure of the collapse of comity in an institution that used to run on that quality.  The latter is that the filibuster may—or at least can—now function as a constitutional prosthetic, performing the seasoning function the Senate was initially intended to fulfill but which the frenzied pace of modern life has subsumed.

Read More

Why a Majority of the Senate Can Change the Filibuster Rule

Recently, Mike Ramsey discussed the letter of a host of distinguished scholars arguing that the Constitution requires that a majority of each house have the power to change its rules (at least on the first day of the legislative session).  Therefore, the Constitution requires that a majority of the Senate be able to modify or eliminate the filibuster rule this month.

As Mike noted, I have argued  for a similar position before.  First, there is this op ed where John McGinnis and I conclude:

The . . . 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.

These conclusions are discussed more extensively in this Yale Law Journal article entitled “The Constitutionality of Legislative Supermajority Rules: A Defense.”  They are also elaborated upon in a variety of articles that we have published, such as this one.

My view differs in two respects from the Scholars’ Letter.  First, I believe that a majority of the Senate can at any time vote upon a change in the Senate Filibuster Rule.  There is no particular reason why the change needs to be made at the beginning of the session.

Second, I disagree with the claim that the power of a majority of the Senate to change the rules is based on the Framers’ belief in democracy.  The letter states:

Read More