The Constitutional Option: Reforming the Rules of the Senate to Restore Accountability and Reduce Gridlock

Senator Tom Udall *

“It is our duty to take responsibility for the rules which will govern our procedures, and not to cast that responsibility upon the dead hands of past Congresses.”[1]

Introduction

The United States Senate has become a graveyard for good ideas—increasingly crippled by the partisan abuse of the institution’s own rules. Instead of being the chamber of Congress where legislation is carefully debated and serving as an “additional impediment . . . against improper acts of legislation,”[2] the modern Senate too often serves as a brick wall, stifling debate rather than promoting it and disrupting important legislation and nominations for purely partisan reasons. The use of obstructionist procedural tactics such as the filibuster and secret holds has expanded rapidly in recent Congresses, to the point where they are now everyday rather than extraordinary occurrences. Such obstructionist practices, when abused, make a mockery of our representative democracy.

I am honored to serve as a member of the Senate Committee on Rules and Administration. Over the past year, the Committee has held a series of hearings concerning the Senate’s parliamentary procedures and rules reform. After listening to testimony from a distinguished group of experts, I believe more strongly than ever that our Senate rules are broken—and I know I am not alone. The American people are fed up with the Senate’s current dysfunction. In a 2010 poll, 86% of Americans felt that our system of government was broken.[3] Another recent poll showed that 64% of voters said it was time to get rid of the filibuster.[4] Certainly, some people attach their critique of obstructionist tactics to whether they support or oppose the policies of the current majority. But the truth is the Senate’s rules are not broken only for one party, or only for the majority. Today, Democrats lament the abuse of the filibuster, and Republicans complain that they are not allowed to offer amendments to legislation. Five years ago, those roles were reversed. The explosion of obstructionism and partisanship over the past few Congresses is staggering and dangerous to the interests of our country. Inaction has a price.

Filibusters have disrupted the executive nomination process, leaving critical executive positions vacant. In recent testimony before the Senate Committee on Rules and Administration, Brookings Institution scholar Thomas Mann noted that:

In the midst of a financial meltdown and critical decisions to be made on the implementation of TARP, the Treasury Department had no Senate-confirmed officials in many high-ranking policy positions . . . .

Other critical positions with urgent responsibilities for a Senate-confirmed appointee subject to extended vacancies included Commissioner of U.S. Customs and Border Protection, director of the Transportation Security Administration, head of the National Highway Traffic Safety Administration, and director of the Centers for Medicare and Medicaid Services.[5]

The current level of legislative obstructionism also threatens the United States’ competitive position. For example, Senator John Kerry recently warned that China and Europe have leapt ahead of the United States in rapid transit and broadband while “we’re struggling to keep Amtrak alive.”[6] Rather than continue on this destructive path, we should adopt rules that allow a majority to act while protecting the minority’s right to be heard.

Unfortunately, rules reform is an exceptionally difficult process. As currently written, the Rules are unconstitutionally entrenched against reform: there are specific rules, adopted during previous Congresses, which prevent a majority of the current Senate from implementing necessary reforms. Senate Rule XXII (“Rule 22”) requires two-thirds of senators present and voting to agree to end debate on a rules change.[7] Senate Rule V (“Rule 5”) states, “the rules of the Senate shall continue from one Congress to the next unless they are changed as provided in these rules.”[8] Taken together, these two rules effectively bind the Senate to outdated rules adopted by its predecessors.[9] This entrenchment of the Senate Rules is unconstitutional, contrary to the Framers’ intent, and violates the longstanding common law principle that one legislature cannot bind its successors.

There is a solution to this entrenchment that has been supported by members of both parties for almost a century. What has become known as the “Constitutional Option” is based on a simple premise: at the beginning of each new Congress, the Senate is not bound by the rules of any previous Congress.[10] In accordance with the Constitution, the Senate is free to end debate with a simple majority vote and move to a final vote on the rules.[11] By adopting its own rules by a majority vote at the beginning of each new Congress, the Senate will have the reasonable and constitutionally-supported opportunity to make necessary reforms to the Senate Rules. Many of my Senate colleagues have proposed specific reforms to the Senate Rules, but I would like to be clear that my proposal differs from these other reforms. Unlike those specific changes to the rules, which I think all deserve careful consideration, my proposal is to make each Senate accountable for all of its rules. This is what the Constitution provides for, and it is what our Founders intended.

Part I of this Article argues that the abuse of the Senate Rules has reached critical levels, preventing the Senate from fulfilling its duty to the American people. I discuss both the filibuster and secret holds as examples of the Senate’s current procedural dysfunction and summarize several reform ideas that have been introduced by my colleagues in the Senate. Unfortunately, without overcoming the entrenchment of the current rules, such practical reforms have little chance of adoption. Part II argues that the Senate Rules are unconstitutionally entrenched against reform. Long-held common law principles, Supreme Court precedent, and the opinions of respected legal scholars and senators all support this conclusion. Finally, Part III argues that the Senate has the authority, granted by the Constitution, to reform its rules by a simple majority vote at the beginning of each new Congress.

I. Filibusters and Secret Holds—Unprecedented Rules Abuse Makes Reform Critically Important.

The urgency of reforming the Senate Rules is evident from the unprecedented increase in their abuse. The filibuster and secret holds have become everyday partisan tools used simply to delay—or, worse, as a minority veto. Section A, below, discusses the evolution of the filibuster and argues that, in its modern form, the filibuster no longer serves to extend important debate and improperly shifts control of the legislative agenda to the minority party. Section B discusses how the practice of secret holds, like the filibuster, has contributed to the current procedural dysfunction of the Senate. Section C reviews reform legislation introduced by my Senate colleagues that would curb the abuse of such practices and comments on the likelihood of their adoption without the use of the Constitutional Option.

The following discussion of the evolution of the filibuster serves two purposes. First, it puts the current usage of the tactic into perspective. The regular usage of the filibuster is a recent aberration. Arguments against reform based on notions of Senate tradition are stretched thin when one reflects both on the filibuster’s inadvertent creation and on how vastly different today’s filibuster is from its historical pedigree. Second, the mechanics and history of the filibuster are heavily intertwined with the problem of entrenchment and the Constitutional Option; these topics are addressed in Parts II and III of this Article. While I address these topics individually, an understanding of the basics of the filibuster is also important to understanding the entrenchment of the Senate Rules and the Constitutional Option.

A. The Evolution of the Filibuster

There is no constitutional limit on the length of time that a senator may debate a measure. Therefore, the Senate generally relies on its rules and other internally adopted mechanisms to control what otherwise could be endless debate. The Senate uses four methods to control debate. First, the “motion to table” is a non-debatable motion used to halt debate and bring about an immediate up or down simple majority vote on whether to table a measure.[12] While the “motion to table” is an efficient tool for limiting debate, is has limited utility for those in favor of a measure because it may only be used to “table,” or kill, a measure. Second, the Senate also utilizes debate-limiting provisions within previously adopted legislation that supplement the Senate Rules for actions pursuant to that legislation. The debate-limiting provisions contained within the Congressional Budget Act of 1974 are an example.[13] The final two methods, the “unanimous consent agreement” and Rule 22’s cloture mechanism, are the most important to understanding the mechanics of the filibuster. The unanimous consent agreement is a commonly used method for ending non-controversial debate and moving to further action.[14] However, as its title suggests, a unanimous consent agreement requires a unanimous vote. Finally, Rule 22’s cloture mechanism requires a supermajority vote, generally a three-fifths vote, to end debate and proceed with definitive action.[15]

Rule 22, in its current form, requires a three-fifths (sixty) vote of all senators to invoke cloture on any pending measure, except a rules change, which requires a two-thirds (sixty-seven) vote.[16] Therefore, while a simple majority of fifty-one votes is sufficient for final passage, sixty or sixty-seven votes is required to even get to that final vote. Thus Rule 22, while providing the majority with a method of closing debate, inversely provides the minority with a method of filibustering the majority’s actions if it can deny them the necessary votes for cloture. Although the filibuster is most commonly thought of as a method of denying cloture on the passage of legislation, most Senate actions are debatable questions. Senate actions such as the confirmation of the executive branch nominees, amendments, conference reports, and treaty approvals are all subject to filibuster. While the filibuster is generally discussed as a procedure for extending debate, a minority of senators can use the filibuster to actually prevent debate because a motion to proceed to the consideration of a measure is itself a debatable question.

The original Senate Rules included a parliamentary procedure called “a motion for the previous question,” which could be used to close debate by a simple majority vote.[17] The Senate dropped the procedure in 1806 because, at the time, the Senate had few issues with obstructionist tactics and figured the procedure was unnecessary.[18] This left the Senate open to filibuster by even a single senator, because without the motion on the previous question, the Senate would have to rely on unanimous consent agreements to close debate. Despite this, no filibusters were even attempted until the 1830s.[19]

In response to a 1917 filibuster, the Senate readopted a cloture mechanism, the predecessor of today’s Rule 22. Prior to the United States’ entrance into World War I, British intelligence intercepted the Zimmerman Telegram, a secret German communication to Mexico that it was commencing unrestricted submarine warfare in the North Atlantic and inviting Mexico to enter the war against the United States.[20] Released to the American press, the Zimmerman Telegram eventually proved critical to convincing both the American public and their elected officials that the United States should enter the war. As a preliminary measure, President Woodrow Wilson attempted to get Congress to pass legislation that authorized the arming of U.S. merchant ships against German U-boat submarines.[21] Passed by the House, this legislation was filibustered in the Senate by eleven isolationist senators who succeeded in preventing the bill from coming to vote before the session of Congress expired. President Wilson, commenting on the filibuster, stated that:

The Senate of the United States is the only legislative body in the world which cannot act when its majority is ready for action.

A little group of willful men, representing no opinion but their own, have rendered the great Government of the United States helpless and contemptible.

The remedy? There is but one remedy. The only remedy is that the rules of the Senate shall be so altered that it can act.[22]

In a special session of Congress commenced the following day, the Senate took up rules reform and amended Rule 22 to include a procedure for cloture by two-thirds of all senators present and voting.[23]Thus, Rule 22 restored a method of cloture, albeit one requiring a supermajority vote, without returning the Senate to its original cloture mechanism, the motion on the previous question, which only required a majority vote.

Rule 22 has been reformed several times since its original adoption.[24] Some of these changes have made the use of the filibuster easier and more palatable for regular use by the minority party, while others have made the tactic more difficult to employ. For example, the change in Rule 22’s language from “senators present and voting” to “senators duly chosen and sworn” has allowed a minority to filibuster without requiring the entire block of filibustering senators to be present on the floor of the Senate.[25]This made filibusters far easier to use. In contrast, reducing the cloture vote requirement on all measures except rules changes from two-thirds to three-fifths made the tactic more difficult for a minority to employ.[26] In 1975, Walter Mondale, then a senator, led the last major successful Rule 22 reform effort. He recently commented on the need to reform the Senate’s cloture rule in a way that fits the realities of the current Senate, stating that “there is no magic number. [In 1975], [w]e tried to find a line between deliberation and debilitation. The number 60 worked for us then. In the harshly partisan Senate of today, it is a hill too high.”[27]

Recent Congresses have made unprecedented use of the filibuster. The following chart shows the growth in the use of the filibuster over the last forty years and the exponential spike in recent years.[28]

As the chart shows, the 110th Congress (2007–2008) saw a sharp rise in the use of filibusters with a record 139 motions to invoke cloture filed.[29] This unprecedented usage of the filibuster has continued: as of November 1, 2010, there had been 123 motions to invoke cloture in the 111th Congress.

Constitutional law scholars Catherine Fisk and Erwin Chemerinsky note the filibuster’s divergence from its historical pedigree. They write that:

[A]lthough the Senate tradition of careful deliberation and unlimited debate may have justified the filibusters of yesterday, the smaller size, lighter workload, and more collegial culture of the pre-1950 Senate imposed significant limits on the ability of the minority to use the filibuster to thwart the majority. The modern filibuster, by contrast, has little to do with deliberation and even less to do with debate. The modern filibuster is simply a minority veto, and a powerful one at that. It is not part of a long Senate tradition and history alone cannot justify it.[30]

Thomas Jefferson stated that “[i]t is very material that order, decency and regularity, be preserved in a dignified public body” and that “[n]o one is to speak impertinently or beside the question, superfluously or tediously.”[31] Unfortunately, this tradition of a dignified Senate has faded. The modern filibuster bears faint resemblance to its historical predecessors or the filibuster romanticized in “Mr. Smith Goes to Washington”[32] where Jimmy Stewart’s character holds the floor of the Senate to attract the public scrutiny that ultimately halts a piece of corrupt legislation. The filibuster is no longer used sparingly as a device to extend debate over important or controversial legislation or nominees. The reality is, today’s filibuster clearly contributes to the Senate’s procedural dysfunction and should be reformed.

B. Secret Holds

Secret holds are an additional example of how manipulation of the Senate Rules continues to foster a level of gridlock and obstruction unlike any we have seen before. Secret holds allow as few as one senator to anonymously prevent a bill or nominee from coming up for consideration. In order to call up business on the floor, the Majority Leader must make a “motion to proceed.” Normally, the motion is agreed to by a unanimous consent agreement. The problem is that the motion to proceed is debatable under the Rules, meaning that it can be filibustered. Therefore, if a single senator threatens to filibuster the motion to proceed, denying the Majority Leader the unanimous consent agreement, the Senate must go through the lengthy Rule 22 cloture process in order to move to debate the underlying measure. While one senator could not prevent the Senate from obtaining cloture, the delay caused by forcing the cloture procedure is often enough to convince the majority leader to hold off on the measure. The hold is kept a secret because it has become the Senate’s practice to allow senators to anonymously notify their party leadership that they intend to vote against the unanimous consent order.

Senators of both parties have been trying for decades to make the motion to proceed non-debatable but have failed because of the entrenchment of the rules. In January 1979, Senator Robert Byrd (D-WV)—then Majority Leader—proposed changing the Senate Rules to limit debate to thirty minutes on a motion to proceed.[33] Doing so would have significantly weakened the power of holds—and thus curbed their abuse. At the time, Senator Byrd took to the Senate floor and said that unlimited debate on a motion to proceed “makes the majority leader and the majority party the subject of the control and the will of the minority. If I move to take up a matter, then one senator can hold up the Senate for as long as he can stand on his feet.”[34] Despite the moderate nature of the change that Byrd proposed, he could not garner the votes to overcome a filibuster and his proposal was never adopted.[35]

Efforts to reform the motion to proceed have continued. In 1984, a bipartisan study group recommended placing a two-hour time limit on debate of a motion to proceed.[36] That recommendation was ignored. In 1993, Congress convened the Joint Committee on the Organization of Congress to determine how Congress can be a better institution.[37] Senator Pete Domenici (R-NM), my immediate predecessor, was the co-vice chairman of the Committee. At a hearing before the Committee, he said, “If we abolish [the debatable motion to proceed], we have gone a long way to diffusing the validity of holds, because a hold is predicated on the fact that you can’t get [a bill] up without a filibuster.[38] The final report of that joint committee stated that “[t]here was significant agreement that the motion to proceed to a bill should not be debatable, or that debate on the motion should be limited to 2 hours.”[39] Despite the recommendation, nothing came of it. And here we are again today, in the same exact place—thirty-one years after Senator Byrd tried to institute a reform that members of both parties have agreed is necessary.

C. Specific Reform Proposals

In the 111th Congress, several of my colleagues have introduced resolutions that would curb the abuse of the Senate Rules while preserving minority rights to extended debate. Senator Tom Harkin’s (D-IA) cloture reform bill deserves fair consideration.[40] Under Senator Harkin’s bill, sixty votes would still be necessary for cloture on an initial motion. If the majority fails to get sixty votes, two more days of debate would ensue, followed by a second cloture vote that would require only fifty-seven votes to cut off debate. If that also failed, a third vote two days later would require fifty-four votes to end debate. And, if that failed, a fourth and final cloture vote after two more days of debate would require fifty-one votes.[41]What is particularly interesting is that Senator Harkin introduced the exact same bill in 1995, when he was in the minority party.[42] He understands that cloture reform should not be a partisan issue—a functioning Senate is necessary to do the work the American people expect.

Senator Mark Udall (D-CO), my cousin, has also drafted a bill that would reform the Senate’s cloture rule in a way that would reduce abuse and promote actual debate.[43] Senator Udall’s bill would change the requirement for cloture from a vote of three-fifths of all senators “duly chosen and sworn” back to the original language of three-fifths of all senators “present and voting.”[44] This would force the minority members that wish to filibuster to actually remain on the floor of the Senate and make their case against the measure with extended debate. Senator Udall’s bill would also amend Rule 22 to only allow filibusters on a motion to end debate, thus ending the practice of filibustering motions to proceed. This reform would effectively end the practice of secret holds and would ensure that the filibuster can only be used to extend debate, rather than to restrict it.

Other senators have also introduced proposals for common-sense cloture reform. Senator Frank Lautenberg (D-NJ) has a proposal that would keep the cloture vote requirement at sixty votes but would require the filibustering senators to actually be on the floor debating the issue.[45] Senator Michael Bennet (D-CO) has a measure that would reform the cloture rule to encourage bipartisanship.[46]

Senators Ron Wyden (D-OR), Chuck Grassley (R-IA), and Claire McCaskill (D-MO) have worked tirelessly to bring an end to the practice of secret holds. The three senators have introduced legislation that would require any senators that place a hold on legislation to openly identify themselves, a reform that I believe would significantly curb the practice.[47] In addition to working on the above legislation, Senator McCaskill has obtained the pledge of sixty-nine senators to not utilize the practice.[48] I agree with Senators Wyden, Grassley, and McCaskill that any senator that can single-handedly hold up the work of the Senate should be willing to publicly defend that decision.

Unfortunately, none of these reforms are likely to be enacted unless the Senate confronts the underlying problem of the Senate Rules’ entrenchment. Today’s unprecedented level of abuse demonstrates what happens when the members of the current Senate have no ability to amend the rules adopted long ago. Of the 100 members of the Senate, only two of us have had the opportunity to vote on the cloture requirement in Rule 22—Senators Inouye and Leahy. Therefore, ninety-eight current senators have never voted on the rule. The effect is that senators are not held accountable when the rule gets abused.

II. Entrenchment: An Unconstitutional Limitation on Senate Rules Reform

The Senate must have a reasonable means of considering and adopting common-sense rules reforms. Yet the Standing Rules of the Senate, as currently written, purport to take this ability away. Rules 22 and 5 unconstitutionally entrench the Senate Rules, preventing any reasonable chance for reform. Section A describes how the rules entrench themselves and discusses the legitimacy of the chief argument used to defend this result: the “continuing body” theory. Section B discusses the argument against entrenchment and draws support from common law doctrine, Supreme Court precedent, legal scholars, and a bipartisan group of former and current senators.

A. Rule 22, Rule 5, and the Continuing Body Theory: The Mechanics and Theory of Entrenchment

Rule 22, in addition to allowing filibusters on legislation and confirmations, allows filibusters on changes to the rules themselves. Moreover, obtaining cloture on debate of a rules change requires a more demanding two-thirds (sixty-seven senator) vote.[49] Thus, according to Rule 22, any cloture vote to end debate on a rules change can itself be filibustered by as few as thirty-four senators.

Although Rule 22’s language allows filibusters on Senate Rule changes by itself, this restraint of rule modifications is legitimate only if adopted by each Congress’ senators as the rule for that session of Congress only.[50] Unfortunately, this is not the case. Unlike the House of Representatives, the Senate does not readopt its rules at the beginning of each Congress. Rule reforms may be considered, but only in accordance with the existing rules, which purportedly carry over from Congress to Congress. This difference between House and Senate practice owes its existence in part to habit, but also to the structural differences between the two bodies. Some argue that the Senate is a “continuing body” and therefore the carryover of the Senate Rules is entirely proper.[51] According to the continuing body theory, because members of the Senate stand for election in staggered six-year terms, with only a third standing for election every two years, there is never a new Senate, just one legislative body that continues on indefinitely. The House of Representatives, by comparison, stands for election in its entirety every two years and adopts its rules anew at the beginning of each Congress by majority vote. Language in Rule 5, adopted in 1959, reflects the continuing body theory: Rule 5, paragraph 2, states that “[t]he rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.”[52]

In a recent law review article focusing on the continuing body theory, Professor Aaron-Andrew Bruhl noted that “the striking feature of the [continuing body theory] is the way it uses a seemingly bland structural fact about the Senate—that only a minority of its members stand for election every two years—to generate the powerful conclusion that the Senate’s rules can violate what are often regarded as foundational principles of majority rule and non-entrenchment.”[53] Professor Bruhl points out that a survey of the various Senate practices offers signs of both continuity from Congress to Congress and what Bruhl calls the “death-knell view: [that] a certain instrument, office, or proceeding automatically expires at the end of a certain period.”[54] Providing examples of each category, Professor Bruhl notes that legislation introduced in one Congress, Contempt of Senate orders, and nominations all expire in accordance with the death-knell view, while on the other hand, articles of impeachment, treaty consent processes, and the Senate office of President Pro Tempore continue into the next session of Congress without automatically expiring.[55] Bruhl concludes that despite this seemingly “schizophrenic” behavior by the Senate concerning its own continuity, “the Senate is almost uniformly consistent on one point: entrenchment is not allowed. The exception is, of course, the Senate’s rules.”[56]

Respected senators of both parties have also argued against the continuing body theory. Senator Orrin Hatch (R-UT), commenting on the continuing body theory and Rule 5 in 2005, stated:

[T]he Senate has been called a “continuing body.” Yet language reflecting this observation was included in Senate rules only in 1959. The more important, and much older, sense in which the Senate is a continuing body is its ongoing constitutional authority to determine its rules. Rulings by vice presidents of both parties, sitting as the President of the Senate, confirm that each Senate may make that decision for itself, either implicitly by acquiescence or explicitly by amendment. Both conservative and liberal legal scholars . . . agree that a simple majority can change Senate rules at the beginning of a new Congress.[57]

I agree with Senator Hatch. The language that was added to the Standing Rules in 1959 providing that “[t]he rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules” was the result of a political compromise brokered by then Majority Leader Lyndon Johnson. Senator Byrd, as Majority Leader in 1979, also discussed the addition of this language in the rules. He stated that “[the] rule was written in 1959 by the 86th Congress. The 96th Congress is not bound by the dead hand of the 86th Congress.”[58] Senators Hatch and Byrd were correct—the Constitution does not allow the Senate of one Congress to tie the hands of its successors.

B. Entrenchment is Unconstitutional

In comparison to the thin justification found in the continuing body theory, the arguments against entrenchment are overwhelming. The text of the Constitution, common law doctrine, Supreme Court precedent, legal scholars, and a bipartisan group of former and current Senators all support a theory that entrenchment is anti-democratic and unconstitutional.

Article I, Section 5 of the Constitution states that “[e]ach House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.”[59] It is clear that a supermajority is not needed for the Senate to determine its rules, as the very same sentence explicitly requires a supermajority for the Senate to expel a member.

Entrenchment of the Senate rules violates the common-law principle that one legislature cannot bind its successors. William Blackstone, the eighteenth-century legal scholar, wrote in his Commentaries that “[a]cts of parliament derogatory from the power of subsequent parliaments bind not. . . . Because the [subsequent] legislature, being in truth the sovereign power, is always of equal . . . authority [to its predecessors].”[60] The U.S. Supreme Court holdings have also clearly and repeatedly rejected legislative entrenchment.[61] In Connecticut Mutual Life Insurance Co. v. Spratley, the Court held that “each subsequent legislature has equal power to legislate upon the same subject” and the “power at any time to repeal or modify [an] act.”[62] In Newton v. Mahoning County Commissioners, the Supreme Court held that “[e]very succeeding legislature possesses the same jurisdiction and power . . . as its predecessors. The latter [must] have the same power of repeal and modification which the former had of enactment, neither more nor less.”[63] Analyzing the Senate Rules in accordance with these Supreme Court precedents, constitutional scholars Catherine Fisk and Erwin Chemerinsky concluded that the “conjunction of [Rules 22 and 5 does] exactly what the [Supreme Court] say[s] that the Constitution forbids: it allows one session of the Senate to bind later sessions to its procedure for approving legislation.”[64]

Many other leading constitutional scholars have drawn the same conclusion. These opinions span the political spectrum—both liberals and conservatives agree that entrenchment of the Rules is unconstitutional. Senator John Cornyn (R-TX) held a hearing in 2003 when he was Chairman of the Senate Judiciary Committee Subcommittee on the Constitution, Civil Rights, and Property Rights.[65]Some of the nation’s leading conservative constitutional scholars testified or submitted testimony at that hearing; all supported the principle that a previous Senate cannot enact a rule that prevents a majority in a future Senate from acting. For example, Steven Calabresi—professor of law at Northwestern University School of Law, former law clerk for Justice Antonin Scalia, and co-founder of the Federalist Society—testified that:

The Senate can always change its rules by majority vote. To the extent that Senate Rule [22] purports to require a two-thirds majority to invoke cloture on a rules change, Rule [22] is unconstitutional. It is an ancient principle of Anglo-American constitutional law that one legislature cannot bind a succeeding legislature.[66]

Douglas Kmiec, then dean of the Columbus School of Law at the Catholic University of America, testified that:

We currently have in play a process where carryover rules, rules that have not been adopted by the present Senate, are requiring a supermajority to, in effect, approve and confirm a judicial nominee. As you know, to close debate, it requires 60 votes; in order to amend the rules, it requires 67.

These are carryover provisions that have not been adopted by this body and by virtue of that, they pose the most serious of constitutional questions because, as I quote, Senator, the Supreme Court has long held the following:

“Every legislature possess[es] the same jurisdiction and power as its predecessors. The latter must have the same power of repeal and modification which the former had of enactment, neither more nor less.”[67]

Dr. John Eastman, professor of constitutional law at Chapman University School of Law, said at the same hearing that the use of supermajority requirements to bar the change in the rules inherited from a prior session of Congress would itself be unconstitutional.[68]

Further expert testimony submitted during the hearing also supports this principle. Professor John C. McGinnis of Northwestern University and Professor Michael Rappaport of the University of San Diego School of Law stated in their written testimony that:

[T]he Constitution does not permit entrenchment of the filibuster rule against change by a majority of the Senate. Although the filibuster rule itself is a time-honored senatorial practice that is constitutional, an entrenchment of the filibuster rule, or of any other legislative rule or law, that would prevent its repeal by more than a majority of a legislative chamber, is unconstitutional. Therefore, an attempt to prevent a majority of the Senate from changing the filibuster rule, through a filibuster of that proposed change in the Senate rules, would be unconstitutional.[69]

Constitutional law scholar Ronald Rotunda stated that:

The present Senate rules that create the filibuster also purport not to allow the Senate to change the filibuster by simple majority. However, these rules should not bind the present Senate any more than a statute that says that it cannot be repealed until 60% or 67% of the Senate vote to repeal the statute . . . . I do not see how an earlier Senate can bind a present Senate on this issue.[70]

Over the last century senators have repeatedly spoken out against the entrenchment of the Senate Rules. In 1975, then-Senator Walter Mondale (D-MN) stated that “[e]ven if we wanted to, we could not, under the U.S. Constitution, bind a future Congress or waive the right of a future majority.” [71] Senator Byrd (D-WV), who understood the Senate Rules better than anyone, stated that the original Senate adopted nineteen of its rules by a simple majority vote, and that these members “did not for one moment think, or believe, or pretend, that all succeeding Senates would be bound by that Senate.” [72] Senator John Cornyn (R-TX), in a 2003 law review article, wrote that “[j]ust as one Congress cannot enact a law that a subsequent Congress could not amend by majority vote, one Senate cannot enact a rule that a subsequent Senate could not amend by majority vote.”[73]

The text of the Constitution requires only a simple majority of the Senate to adopt its rules. A wide variety of sources and a diverse group of lawmakers and scholars all conclude that entrenchment of the Senate Rules is unconstitutional. Senate Rules 22 and 5, insomuch as they purport to entrench the Rules of the Senate, are unconstitutional and cannot prevent the Senate from adopting its rules by a simple majority.

III. The Constitutional Option Provides a Means to Overcome Entrenchment.

There is a way to address the problem—the Constitutional Option. It has been used numerous times over the past ninety years as a catalyst for rules reform, and I plan to use it at the beginning of each Congress to make the Senate accountable for its own rules.

During the 1917 cloture reforms that originally established Rule 22, Senator Thomas Walsh (D-MT)—citing Article I, Section 5 of the Constitution—introduced the “Constitutional Option.”[74] Walsh argued that a newly convened Senate was not bound by the rules of the previous Senate and could adopt its own rules, including a rule to limit debate. He reasoned that every new Senate had the right to adopt rules, saying that “[i]t is preposterous to assert that [the Senate] may deny to future majorities the right to change” the rules.[75] In response to Walsh’s proposal, the Senate reached a compromise and amended Rule 22 to include the original cloture mechanism. The compromise permitted cloture on “any pending measure” at the will of two-thirds of all senators present and voting.

In the 1950s, a bipartisan group of senators again sought rules reform. On behalf of himself and eighteen others, Senator Clinton Anderson (D-NM) attempted Senate rules reform with the Constitutional Option. Just as Senator Walsh did almost four decades earlier, Senator Anderson argued that each new Congress brings with it a new Senate entitled to consider and adopt its own rules. On January 3, 1953, Anderson moved that the Senate immediately consider the adoption of rules for the Senate of the eighty-third Congress. Anderson’s motion in the eighty-third Congress was tabled and defeated, but Anderson was not deterred. He introduced the motion again at the beginning of the eighty-fifth Congress. In the course of that debate, Senator Hubert Humphrey (D-MN) presented a parliamentary inquiry to then Vice President Nixon, who was presiding over the Senate. Nixon understood the inquiry to address the basic question: “Do the rules of the Senate continue from one Congress to another?”[76]

Noting that there had never been a direct ruling on this question from the Chair, Nixon stated that:

[W]hile the rules of the Senate have been continued from one Congress to another, the right of a current majority of the Senate at the beginning of a new Congress to adopt its own rules, stemming as it does from the Constitution itself, cannot be restricted or limited by rules adopted by a majority in a previous Congress.

Any provision of Senate rules adopted in a previous Congress which has the expressed or practical effect of denying the majority of the Senate in a new Congress the right to adopt the rules under which it desires to proceed is, in the opinion of the Chair, unconstitutional.[77]

Nixon went on to explain that under the Constitution, a new Senate had three options to deal with the rules at the beginning of a new session of Congress: (1) proceed under the rules of the previous Congress and “thereby indicate by acquiescence that those rules continue in effect,” (2) vote down a motion to adopt new rules and thereby “indicate approval of the previous rules,” or (3) “vote affirmatively to proceed with the adoption of new rules.[78] Despite Nixon’s opinion from the chair, Anderson’s motion was, once again, tabled.

In 1959, Anderson again raised the Constitutional Option at the start of the eighty-sixth Congress, with the support of some thirty other senators.[79] This time he raised the ire of then Majority Leader Lyndon Johnson, who realized that a majority of senators might join Anderson’s cause. To prevent Anderson’s motion from receiving a vote, Johnson came forward with his own compromise: changing Rule 22 to reduce the required vote for cloture to “two-thirds of the senators present and voting.”[80]

To appease a small group of senators, Johnson also included new language. This language stated that the rules continued from one Congress to the next, unless they were changed under the rules.[81] It was a move that would effectively bind all future Senates.

In 1975—two years after Anderson left office—Senators Walter Mondale and James Pearson (R-KS) used the Constitutional Option to convince the Senate to adopt the rule we operate under today: it takes the vote of “three-fifths of all senators duly chosen and sworn” to cut off debate or the threat of unlimited debate on all matters except a change to the rules, which still requires two-thirds of senators present and voting.[82]

Senator Anderson relied on the Constitutional Option as the basis to ease or at least reconsider the cloture requirements laid out in Rule 22. As he said in 1957:

This motion, if agreed to, would not prejudge the nature of the rules which the Senate of the 85th Congress in its wisdom might adopt. . . .

. . . [This] motion declares, in effect, that the Senate of the 85th Congress is responsible for and must bear the responsibility for the rules under which the Senate will operate. That responsibility cannot be shifted back upon the Senate of past Congresses.[83]

As the junior senator from New Mexico, I have the honor of serving in Senator Anderson’s former seat. And I have the desire to take up his commitment to the Senate and his dedication to the principle that in each new session of Congress, the Senate should exercise its constitutional power to determine its own rules.

Conclusion

Rules reform is not a new debate for the United States Senate. Many before me have seen the effects of filibuster abuse and secret holds and found them an unacceptable barrier to our representative democracy. What is clear, however, is that the level of rules abuse has reached unprecedented levels. There are many great traditions in this body that should be kept and respected, but stubbornly clinging to ineffective and damaging procedures should not be one of them. It is time for reform.

As such, the procedure for Senate rules reform has taken on a heightened importance. The current entrenchment of the Senate Rules is not authorized by the Constitution, was never intended in the Senate’s design, and is overwhelmingly condemned by Supreme Court decision, leading constitutional law scholars, and a bipartisan group of respected senators.

At the beginning of each Congress, the Senate can exercise its constitutional right to end debate on a rules change by a simple majority vote and move to a final vote. The Senate may choose to adjust its rules or it may choose to continue with the rules of the previous Congress. The point is that it is our choice, and it is our responsibility. By voting on their own rules, senators will be accountable to them. As Senator Anderson said, it is a “responsibility [that] cannot be shifted back upon the Senate of past Congresses.”[84]


* Senator Tom Udall represents New Mexico in the United States Senate and previously represented the Third District of New Mexico in the United States House of Representatives (1999-2009). He has served as Attorney General of New Mexico (1991–1999), Chief Counsel to the Department of Health and Environment, Assistant U.S. Attorney, and as a Law Clerk to Chief Judge Oliver Seth of the Tenth Circuit Court of Appeals. Senator Udall earned a law degree from the University of New Mexico Law School in 1977, a Bachelor of Laws degree from Cambridge University in 1975, and graduated from Prescott College. Senator Udall wishes to thank Matt Nelson, Tim Woodbury, and Jonathan Sparks for their assistance with this Essay.

[1] 103 Cong. Rec. 150 (1957) (statement of Sen. Clinton Anderson).

[2] The Federalist No. 62, at 378 (James Madison) (Clinton Rossiter ed., 1961).

[3] CNN Opinion Research Corp., Opinion Research Poll 2 (Feb. 21, 2010), available athttp://i2.cdn.turner.com/cnn/2010/images/02/19/rel4f.pdf.

[4] Evan McMorris-Santoro, In Election Week, Majority Agrees It’s Time To Scrap The Filibuster, Talking Points Memo (Nov. 5, 2010), http://tpmdc.talkingpointsmemo.com/2010/11/on-election-day-majority-agrees-we-should-scrap-the-filibuster.php (on file with the Harvard Law School Library).

[5] Examining the Filibuster: Silent Filibusters, Holds and the Senate Confirmation Process: Hearing Before the S. Comm. on Rules & Admin., 111th Cong. 3–4 (2010) (statement of Thomas E. Mann, W. Averell Harriman Chair and Senior Fellow, The Brookings Institution), available athttp://www.brookings.edu/testimony/2010/0623_filibuster_mann.aspx.

[6] Kyle Cheney, Kerry Defends Democratic Agenda, Predicts ‘Major’ Filibuster Changes, Westwood Press (Oct. 28, 2010), available athttp://www.wickedlocal.com/westwood/topstories/x2115300296/Kerry-defends-Democratic-agenda-predicts-major-filibuster-changes.

[7] Standing Rules of the Senate, R. XXII, S. Doc. No. 110-9, at 16 (2007).

[8] Standing Rules of the Senate, R. V, S. Doc. No. 110-9, at 4 (2007).

[9] See 85 Cong. Rec. 178 (1957) (statement of Vice President Richard Nixon) (“Any provision of Senate rules adopted in a previous Congress which has the expressed or practical effect of denying the majority of the Senate in a new Congress the right to adopt the rules under which it desires to proceed is, in the opinion of the Chair, unconstitutional. It is also the opinion of the Chair that section 3 of rule 22 in practice has such an effect.”).

[10] See generally Martin B. Gold & Dimple Gupta, The Constitutional Option to Change Senate Rules and Procedures: A Majoritarian Means to Overcome the Filibuster, 28 Harv. J.L. & Pub. Pol’y 205 (2004) (providing a comprehensive history of the Constitutional Option’s usage in Senates Rules reform attempts).

[11] U.S. Const. art. I, § 5, cl. 2 (“Each House may determine the Rules of its Proceedings . . . .”).

[12] Standing Rules of the Senate, R. XXII, S. Doc. No. 110-9, at 15 (2007) (providing that motions to lay on the table shall be decided without debate).

[13] Congressional Budget Act of 1974, Pub. L. No. 93-344, § 305(b)(1), 88 Stat. 297, 311 (1974).

[14] Floyd M. Riddick & Alan S. Frumin, Riddick’s Senate Procedure 1311 (rev. ed. 1992).

[15] Standing Rules of the Senate, R. XXII, S. Doc. No. 110-9, at 16 (2007).

[16] Id.

[17] See Sarah A. Binder & Steven S. Smith, Politics or Principle: Filibusters in the United States Senate 33–39 (1997) (discussing the early Senate’s inclusion of the previous question procedure and the 1806 decision to drop the procedure due to its lack of use); Gold & Gupta, supra note 10, at 215–16 (noting Vice President Aaron Burr’s 1806 advice to the Senate that the motion on the previous question had been used just once in the previous four years to close debate, which seemed to him “proof that it could not be necessary,” and that while the Senate chose to follow Burr’s advice to get rid of the motion on the previous question, it failed to adopt any other mechanism that might prevent filibusters).

[18] Binder & Smith, supra note 17, at 33–39.

[19] Id. at 10.

[20] Barbara Tuchman, The Zimmermann Telegram 6–7 (1985).

[21] Gold & Gupta, supra note 10, at 218–19.

[22] Id. at 219 (quoting 55 Cong. Rec. 20 (1917) (statement of Pres. Woodrow Wilson)).

[23] Id. at 219–27.

[24] Binder & Smith, supra note 17, at 7, tbl.1-1. Major Rule Changes and Procedural Rulings Affecting the Senate Filibuster.

[25] Id.

[26] Id.

[27] Examining the Filibuster: The Filibuster Today and its Consequences: Hearing Before the S. Comm. on Rules and Admin., 111th Cong. 3 (2010) (statement of Vice President Walter Mondale).

[28] The author thanks the creator of this chart. Wikipedia, Cloture, http://en.wikipedia.org/wiki/Cloture (on file with the Harvard Law School Library). For data on the Senate’s cloture voting, see generally United States Senate, Senate Action on Cloture Motions, http://www.senate.gov/pagelayout/reference/cloture_motions/clotureCounts.htm (on file with the Harvard Law School Library).

[29] Senate Action on Cloture Motions, supra note 28.

[30] Catherine Fisk & Erwin Chemerinsky, The Filibuster, 49 Stan. L. Rev. 181, 184 (1997).

[31] Thomas Jefferson, A Manual of Parliamentary Practice: For the Use of the Senate of the United States §§ 1, 17 (Government Printing Office 1993) (1801).

[32] Mr. Smith Goes to Washington (Columbia Pictures 1939).

[33] S. Res. 9, 96th Cong. (1979).

[34] 125 Cong. Rec. 143 (1979) (statement of Sen. Robert Byrd).

[35] See S. Res. 9, 96th Cong. (1979).

[36] See S. Rep. No. 98-254 (1984).

[37] See Joint Comm. on the Org. of Cong., Org. of the Cong. (1993), http://www.rules.house.gov/Archives/jcoc2.htm (on file with the Harvard Law School Library).

[38] Floor Deliberations and Scheduling: Hearings Before the Joint Comm. on the Org. of Cong., 103d Cong. 124 (1993) (statement of Sen. Pete Domenici).

[39] See Joint Comm. On the Org. of Cong., supra note 37.

[40] See S. Res. 416, 110th Cong. (2010); see also Tom Harkin, Fixing the Filibuster: Real Democracy in the Senate, 95 Iowa L. Rev. Bull. 67, 76–78 (2010).

[41] See Harkin, supra note 40, at 76–77.

[42] See id. at 69 n. 14; S. Amend. 1 to S. Res. 14, 104th Cong. (1995).

[43] See S. Res. 662, 111th Cong. (2010); Press Release, Office of Senator Mark Udall, Udall Offers Common Sense Proposal to Improve Bipartisan Cooperation in the Senate (Sept. 29, 2010) (on file with the Harvard Law School library), available at http://markudall.senate.gov/?p=press_release&id=777.

[44] See S. Res. 662, 111th Cong. (2010).

[45] See S. Res. 465, 111th Cong. (2010).

[46] See S. Res. 440, 111th Cong. (2010).

[47] See S. 3657, 111th Cong. (2010).

[48] Letter from Senator Claire McCaskill et al. to Harry Reid, Senate Majority Leader, and Mitch McConnell, Senate Minority Leader, Senators Pledge to End Secret Holds on Nominations (Apr. 2, 2010) (on file with the Harvard Law School Library), available at http://mccaskill.senate.gov/?p=press_release&id=995.

[49] Standing Rules of the Senate, R. XXII, S. Doc. No. 110-9, at 16 (2007).

[50] Fisk & Chemerinsky, supra note 30, at 239–45 (concluding that the filibuster, by itself, is not unconstitutional).

[51] See generally Richard S. Beth, Cong. Research Serv., RL 32843, “Entrenchment” of Senate Procedure and the “Nuclear Option” for Change: Possible Proceedings and their Implications 5 (2008); Aaron-Andrew P. Bruhl, Burying the “Continuing Body” Theory of the Senate, 95 Iowa L. Rev. 1401, 1404–06 (2010).

[52] Standing Rules of the Senate, R. V, S. Doc. No. 110-9, at 4 (2007).

[53] Bruhl, supra note 51, at 1406–07.

[54] Id. at 1444.

[55] Id. at 1445.

[56] Id. at 1456.

[57] Orrin G. Hatch, Crisis Mode: A Fair and Constitutional Option to Beat the Filibuster Game, Nat’l. Rev. Online (Jan. 12, 2005), http://www.nationalreview.com/articles/213355/crisis-mode/orrin-g-hatch (on file with the Harvard Law School Library).

[58] 125 Cong. Rec. 144 (1979) (statement of Sen. Robert Byrd).

[59] U.S. Const. art. I, § 5, cl. 2.

[60] 2 William Blackstone, Commentaries *90.

[61] See Fisk & Chemerinsky, supra note 30, at 247 (noting the Supreme Court’s holdings in Ohio Life Ins. & Trust Co. v. Debolt, 57 U.S. 416 (1853) and in Newton v. Mahoning Cnty. Comm’rs, 100 U.S. 548 (1879)).

[62] 172 U.S. 602, 621 (1899).

[63] Newton, 100 U.S. at 559.

[64] Fisk & Chemerinsky, supra note 30, at 248.

[65] Judicial Nominations, Filibusters, and the Constitution: When a Majority Is Denied Its Right To Consent: Hearing Before the Subcomm. on the Constitution, Civil Rights and Prop. Rights of the S. Comm. on the Judiciary, 108th Cong. (2003).

[66] Id. at 33 (statement of Steven Calabresi, Professor of Law, Northwestern University Law School).

[67] Id. at 32 (statement of Douglas Kmiec, Dean of the Columbus School of Law, Catholic University of America).

[68] Id. at 23 (statement of John Eastman, Professor of Law, Chapman University School of Law).

[69] Id. at 321 (joint letter by John C. McGinnis, Professor of Law, Northwestern Law School & Michael B. Rappaport, Professor of Law, University of San Diego School of Law).

[70] Id. at 349 (letter by Ronald Rotunda, George Mason University Foundation Professor of Law, George Mason University).

[71] 121 Cong. Rec. 5647, 5649 (1975) (statement of Sen. Walter Mondale).

[72] Gold & Gupta, supra note 10, at 207 (quoting 125 Cong. Rec. 144 (1979) (statement of Sen. Robert Byrd)).

[73] John Cornyn, Our Broken Judicial Confirmation Process and the Need for Filibuster Reform, 27Harv. J.L. & Pub. Pol’y 181, 204 (2003).

[74] See 55 Cong. Rec. 17 (1917) (statement of Sen. Thomas Walsh).

[75] Id. at 18.

[76] 103 Cong. Rec. 178 (1957) (statement of Vice President Richard Nixon).

[77] Id.

[78] Id. at 178–79 (emphasis added).

[79] Gold & Gupta, supra note 10, at 232–36.

[80] Standing Rules of the Senate, R. XXII, S. Doc. No. 110-9, at 16 (2007).

[81] Standing Rules of the Senate, R. V, S. Doc. No. 110-9, at 4 (2007).

[82] Standing Rules of the Senate, R. XXII, S. Doc. No. 110-9, at 16 (2007).

[83] 103 Cong. Rec. 141 (1957) (statement of Senator Clinton Anderson).

[84] Id.

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