Speak softly … and carry a nuclear stick

by Sarah Binder on July 14, 2013 · 2 comments

in Legislative Politics,Senate procedure

62599_1The Teddy Roosevelt-Harry Reid analogy ain’t great, I know.  But the Senate majority leader sure does speak softly, and he’s armed (we think) with a pretty potent stick as the parties go to battle in the Senate over GOP filibusters of President Obama’s executive branch nominees.

There’s been ample excellent commentary and reporting on the coming week’s potential nuclear battle in the Senate.  I thought I’d add a few considerations to the mix.

First, I think it’s important to keep in mind that this week’s drama could take a while to play out.  If the parties do not resolve their differences while secluded in the Old Senate Chamber (where Rep. Prescott Brooks caned Sen. Charles Sumner in 1856), the Senate on Tuesday could begin a series of seven votes to invoke cloture on pending nominees, starting with the three nominees most at risk of falling short of the requisite sixty votes to break a GOP filibuster. One report suggests that Republicans may be trying to make a deal over the NLRB nominees, but without an agreement to confirm Richard Cordray to the Consumer Financial Protection Bureau, Democrats seem unlikely to fold.  Majority Leader Reid also seems unlikely to launch his version of the nuclear option before securing confirmation of the other pending nominees (in particular, those for Labor and EPA).  Moreover, if Reid’s procedural route includes a resolution to change Senate rules to reduce the cloture threshold to a majority vote for executive branch nominees, such motions are required to lay over on the calendar for a day.  That suggests any parliamentary fireworks might be delayed until later in the week.

Second, some close observers of the Senate argue that Democrats are making an unprecedented claim that only a simple majority is required to end debate and change Senate rules.  But versions of the claim have previously been made: Both Democratic (Hubert Humphrey) and Republican (Richard Nixon and Nelson Rockefeller) vice presidents offered roughly similar rulings in the 1950s, 60s, and 70s, albeit applying the argument to the start of a new Congress.  Moreover, a Senate majority in 1975 endorsed the view that a simple majority was sufficient to bring the Senate to a vote on a change in its rules at the start of a new Congress.  (That view stems from the rule making power granted to the House and Senate in Article 1, Section 5, of the Constitution, which is why some call the tactic the Constitutional option.)  True, the Senate later reversed itself as part of the deal that lowered the cloture threshold in 1975 for legislative measures to sixty senators, thereby reaffirming that the Senate’s formal rules should be applied in future efforts to change Senate rules (and that rule today requires a two-thirds vote to cut off debate on a rule change).  But depending on how Reid were to structure a nuclear motion, his parliamentary gambit could force the Senate to revisit its 1975 decision that endorsed the right of a Senate majority to bring the Senate to a vote on a rule change.  Some will likely argue that Reid is stretching the Constitutional option by applying it midstream, rather than at the outset of a new Congress.  I’ve never been convinced that the Constitutional option is limited to the opening of a new Congress.  The Constitution empowers the House and Senate to write their own rules; it does not limit that power to the opening of a Congresss.

Third, Reid’s claim last week that the Senate appears to have changed its procedures by majority vote 18 times since 1977 deserves a bit more scrutiny.  It is true that the Senate has moved by majority vote to change its procedures numerous times over the past several decades (and much earlier in its history as well).  Wawro and Schickler term these episodes reform-by-ruling—instances in which the Senate (either through a ruling from the chair or from a Senate vote to appeal a ruling) sets a new precedent that interprets existing Senate rules in a new way.  Most recently in 2011, Senate Democrats overturned a ruling of the chair, thereby establishing a new precedent that motions to suspend the rules to consider non-germane amendments post-cloture were dilatory and not allowed post-cloture.   In some ways, one set of motions that Reid might use in a nuclear gambit would be just another instance in which a Senate majority created a new precedent that applies existing rules in a new way.  In this case, a majority would vote to establish the precedent that a simple majority can cut off debate on a resolution to change the rules.  But in other ways, Reid’s threatened nuclear option is cut from a different cloth: None of the other successful examples of reform by ruling targeted the number of senators required to invoke cloture under the Senate’s cloture rule.  So, yes, the underlying principle in past episodes and in this week’s potential fracas is essentially the same. But if successful, Reid’s plan would secure a change in the required number of votes for cloture—something the Senate does not appear to have accomplished through precedent setting in the past.  (That said, as Steve Smith and I argued some time ago, the 1975 precedent set by the Senate to allow majority cloture was instrumental in getting the parties to the table to negotiate changes to the Senate’s Rule 22—even if that initial precedent was later reversed.)

Fourth, I think it’s important that Reid appears to be narrowly tailoring a rule change to apply only to executive branch nominees (and perhaps only after a nomination has been pending on the executive calendar for a set length of time).   When asked by CQ’s intrepid Senate reporter, Niels Lesniewski, about what Reid would do when contested judicial nominations came to the floor in a couple of weeks, Reid refused to expand the scope of conflict to judges: “This is focused very concisely…This is not about judges…This is about presidential executive nominees.” Why was Reid so adamant about limiting the reach of a rule change to executive branch nominees?  A narrowly tailored change might make his nuclear gambit look more like previous episodes of reform by ruling.  It might also make it easier to secure the support of 51 Democrats.

Finally, keep in mind that there’s an awful lot of uncertainty about what might (or might not) happen.  We don’t know precisely how Reid might decide to structure his parliamentary gambit.  (If you look up “Nuclear Option” in the Senate rulebook, you won’t find it!)  And, as Richard Beth importantly spells out in this essential CRS report, “It is not clear that any such form of proceeding can be proposed that would not require violations of existing rules in the process of changing them.”  That sentence always gives me pause.  And as Greg Koger points out, “punitive filibustering” by the minority in response to a majority going nuclear could be costly to the minority as well as the majority.  The Gang of 14 agreement in 2005 that defused the GOP’s nuclear threat, Koger reminds us, “spared both parties from trying to follow through on threats that would have been very costly to redeem and embarrassing to recant.”  As much as the “nuclear option” is bandied about in the press in recent years, the path to majority cloture for reforming Senate rules remains rocky.  But a determined and extremely frustrated majority might just do it.

{ 2 comments }

Steve Smith July 14, 2013 at 6:32 am

We have yet to hear from Reid how he will acquire a new rule or precedent to get simple majority cloture on executive nominations. There a several procedural paths possible that can be grouped into two categories: (1) a precedent on the cloture threshold for executive nominations and (2) an amendment to the cloture rule to provide for a new threshold for executive nominations.

(1) A New Precedent. This approach would look something like the approach promised by Republican Majority Leader Bill Frist in the 2003-2005 fight over judicial nominations. If the Gang of 14 had not blocked this path, Frist would have made a point of order that the advice-and-consent clause of the Constitution requires that the Senate vote on each judicial nomination, which, he argued, implies that a simple majority may invoke cloture on a judicial nomination. Reid might substitute executive nominations for judicial nominations in that argument.

In 2005, Democrats argued persuasively that this was a weak constitutional argument. They argued that the Senate had a right to withhold its consent on a nomination by failing to act on it. The president is free to withdraw a nomination and submit a new one at any time.

(2) Amend Rule XXII. The second approach involves the adoption of a resolution to amend the cloture rule. The resolution would provide for cloture by a simple majority for executive nominations. Such a resolution would be filibustered so the majority leader would make a point of order that the Constitution implies that a simple majority may get a vote (that is, invoke cloture) on a change in the standing rules.

The constitutional argument for a new precedent on simple majority cloture for an amendment to the standing rules is fairly strong. Since the 1940s, reformers in the Senate have argued that Article I, Section 5, which provides that “each house may determine the rules of its proceedings,” implies that a simple majority can change the rules. Senate Rule XXII, which provides for a two-thirds majority for cloture on a change in the rules, therefore is unconstitutional.

There is one hitch. Some Senate reformers, like Udall and Merkley, have argued that a simple majority has the right to act on the rules at the beginning of a Congress. The is some history to this interpretation, including a 1957 opinion by Vice President Nixon, but the argument that Art I, Sec 5, is limited to the first legislative day is not strong. The argument seemed designed to placate the concern that the Senate’s rules would be up for grabs at all times.

Amending Rule XXII surely is the more desirable path. The precedent required to accomplish this–that a simple majority can act to change the rules–is a far better precedent than Frist’s advice-and-consent concoction. Reforming the formal rules is far more orderly than living off precedent alone. Either way, the majority would be flexing its procedural muscle in a way that today’s minority will find objectionable.

For Reid, moving a reform resolution is more complicated than a simple point of order on executive nominations. Pushing a reform resolution would open up a larger subject of procedural reform and would force him to deal with floor amendments to the resolution.

Mansfield2016 July 14, 2013 at 10:39 am

“Senate Rule XXII, which provides for a two-thirds majority for cloture on a change in the rules, therefore is unconstitutional.”

Seems more accurate to say that Rule XXII lacks constitutional force.

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