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Why Is Tomorrow Different From All Other Days?

In today’s Washington Post, Senator Tom Udall asserts that the Senate rules can be changed by a simple majority, notwithstanding Senate Rule XXII, which requires a two-thirds vote in order to bring debate to a close on a motion to amend the Senate rules.  According to Udall, “[o]n the first day of the new session, the rules can be changed under a simple, rather than two-thirds, majority.”

What is Udall’s basis for saying that the rules can be changed on the first day?  He doesn’t say.  But his colleague, Senator Jeff Merkley, attempted to explain this in an MSNBC interview last night.  Merkley says that “according to the Constitution, a majority can set up the Senate, they can do that at any time, but, according to precedent, it has been done at the start of a two year cycle.”  He later reiterates that a majority can, under the Constitution, amend the rules “at any time,” but that “by precedent, by tradition, which weighs heavily in the Senate,” it is supposed to be done at the beginning of a new Congress.

Unfortunately for Senator Merkley, there is no Senate precedent for amending the Senate rules by a simple majority at the beginning of a new Congress.  None at all.  Senate practice does not even support using the first day to consider amendments to the Senate rules.  This CRS report explains that “the Senate follows a well-established routine on the opening day of a new Congress” and describes in detail the activities, such as swearing in new members, which the Senate performs.  There is no mention of amending the Senate rules.

It is true that there is precedent for claiming that the Senate rules can be changed by a simple majority on the first day of a new Congress.  This claim is based on the theory, apparently originated by Senator Walsh in 1917, that the Senate’s rules expire at the end of a Congress and that it operates, at the beginning of a new Congress, under general parliamentary law.  This claim is contrary to unbroken Senate practice as well as the explicit provisions of Senate Rule V (which provides that the Senate rules “continue from one Congress to the next Congress”).  As discussed in my last post, accepting this claim would also have unsettling consequences for the legitimacy of the Senate itself.

For present purposes, however, what is significant is that there is no Senate precedent which accepts this claim.  To the contrary, as explained in a 2005 CRS report (written when Senate Republicans were threatening the “nuclear option” to eliminate filibusters of judicial nominations), the Senate has clearly rejected it on at least two occasions.  In 1957, Senator Anderson used this argument to support his motion to adopt a new package of rules on opening day.  The Senate voted to table his motion (despite a favorable ruling from Vice President Nixon).  Again, in 1967, Senator McGovern made the same argument, which Vice President Humphrey submitted to the Senate for a vote.     The Senate again voted to reject the argument, sustaining a point of order against McGovern’s motion.  As CRS notes, if the Senate were to adopt the claim that a simple majority can amend the rules at the beginning of a new Congress, it “would have to overturn these two precedents, perhaps among others.”

There is, therefore, no existing precedent supporting the Udall/Merkley theory.  But suppose the Senators are successful in convincing the Senate to establish a new precedent?  It would be utterly impossible to limit that precedent to the opening day of a new Congress.  The only possible justification for ignoring the explicit provisions of the Senate rules would be that the Constitution itself prohibits entrenching Senate rules in the manner set forth in those rules.  But, as Senator Merkley himself acknowledges, that  position means that the Senate rules can be amended by a simple majority “at any time.”  The first day of a Congress is no different in that regard than any other.

Even if the Senate were to declare that the rules can be amended (by simple majority)only on opening day, this new precedent would be worthless.  After all, if the Senate is going to disregard prior precedents and two hundred years of unbroken practice, it seems unlikely that any new precedent would constrain a majority from amending the Senate rules at any time.  As the 2005 CRS report suggests, it is difficult to see how the Senate could resist becoming like the House, “in which debate and deliberation can be terminated at the option of the majority,”  or to avoid “a chaotic environment in which a temporary majority could change precedents any time it wanted to.”

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