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Professor Chemerinsky and Senate Precedent on Changing the Rules

Now let us turn to the other law review article cited by the December 12 letter, Catherine Fisk & Erwin Chemerinsky’s “The Filibuster,” 49 Stan. L. Rev. 181 (1997). Since only Professor Chemerinsky signed the December 12 letter, I will refer just to him, no slight to Professor Fisk intended.

The 1997 article is cited in connection with the December 12 letter’s interpretation of Senate precedent, specifically in a section entitled “Senate Precedent and Tradition Support Rule Change By Majority Vote on the First Day.” The letter contends that “the Senate has consistently recognized its authority to change its procedural rules by a majority vote on the first day of a new Congress” and that there are “numerous precedents confirming a new Senate’s authority to change its rules by majority vote.”

Although the 1997 article contends that the Senate rules are unconstitutionally entrenched, it makes no claim this view has been accepted by the Senate itself. To the contrary, Chemerinsky states that “[t]he repeated failure of efforts to adopt majority cloture or to permit a majority to change Rule XXII suggests that it is unlikely the Senate will decide on its own that the filibuster is unconstitutional.” 49 Stan. L. Rev. at 225. He argues, however, that a judicial action could effectively vindicate the Senate majority’s constitutional rights. Id. at 225-38. (IMHO, the view that a court would hear the merits of such a case was far-fetched even at the time the article was written, though it became more so after the Supreme Court’s decision in Raines v. Byrd, 521 U.S. 811 (1997)).

The 1997 article concludes:

Senate Rule XXII is unconstitutional in requiring a two-thirds vote in order to change the Senate’s rules. Declaring this rule unconstitutional would mean that a majority of the Senate could abolish or reform the filibuster. Ideally, the Senate would recognize this violation and revise its own rules to eliminate the requirement for a supermajority. It is unlikely, however, that the Senate would make such a change; if nothing else, the change is likely to be filibustered by the minority party in the Senate.

49 Stan. L. Rev. at 253. The last sentence is a bit puzzling—the only way the “minority party” can filibuster a rules change is if there is a valid rule allowing it to so. The problem, from Chemerinsky’s perspective, is not that the minority party will exercise its rights under Rule XXII; rather, it is that the Senate does not “recognize [the] violation” that allegedly makes the rule invalid.

What, though, of the “numerous precedents” claimed by the December 12 letter that confirm “a new Senate’s authority to change its rules by majority vote”? Clearly Chemerinsky did not believe in 1997 that these precedents stood for the proposition claimed by the December 12 letter, and a quick review will show why.

The first of the alleged precedents is Vice President Nixon’s advisory opinion in 1957 that “[a]ny provision of Senate Rules adopted in a previous Congress that 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.” However, as Chemerinsky points out, the Senate never voted on Nixon’s opinion. If anything, the Senate rejected Nixon’s position in 1959 when it adopted the following provision of Rule V: “The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.” As far as I know, neither Chemerinsky nor anyone else has ever claimed that the Senate endorsed Nixon’s position.

As Chemerinsky explains, the next “precedent” occurred in 1969, “when Vice President Hubert Humphrey issued a similar ruling [to Nixon’s], finding that a majority of the Senate had a right to cut off debate and to proceed on changing the rules; however, the Senate voted to overturn his ruling.” 49 Stan. L. Rev. at 212 (emphasis added). The December 12 letter cites Humphrey’s ruling, but neglects to mention that the Senate reversed that ruling.

The third and final “precedent,” and the one most reasonably susceptible to differing interpretations, occurred in 1975, when Senator Walter Mondale offered a motion to amend the filibuster rule, and Vice President Rockefeller ruled that the Senate could determine whether or not the motion would be subject to a simple majority cloture. Majority Leader Mike Mansfield raised a point of order that majority cloture would violate Senate rules. Chereminsky relates what happened next:

The Senate voted to table the point of order, thereby rejecting Senator Mansfield’s position and allowing a vote on the amendment. Although this gave the majority the power to adopt a majority cloture rule, the Senate backed away from such a radical change and instead provided for cloture on a three-fifths vote. In the process, the Senate reconsidered and voted to sustain the Mansfield point of order, thus establishing that a majority of the Senate would abide by the supermajority requirements for amending Senate rules.

Id. at 213. Note that this last sentence is ambiguous. What does it mean to say that a majority of the Senate “would abide” by Rule XXII? Does it mean that a majority of the Senate determined that the rule was valid, and therefore it was required to abide by it until it was properly changed? Or does it mean that it simply chose to adhere to the rule for political or other reasons, leaving open the possibility that it might choose differently in the future? Chemerinsky does not say, but it is clear that he does not believe (or did not believe in 1997) that the 1975 episode established the right of a simple majority to change the rules.

To make matters more complicated, Chemerinsky (and Fisk) wrote a second law review article regarding the filibuster, one that is not cited by the December 12 letter. See “In Defense of Filibustering Judicial Nominations,” 26 Cardozo L. Rev. 331 (2005). This article reflects a different perspective on the Senate rules.

The 2005 article again runs through the 1957, 1969 and 1975 Senate episodes described above, and explains that on each occasion the Senate “repudiated” the attempt to change the rules by majority vote. When the 2005 article describes the 1975 episode, though, its concluding sentence is subtly different from that in the 1997 article: “In the process, however, the Senate reconsidered the Mansfield point of order and voted to sustain it, thereby establishing that the majority of the Senate at that time favored the supermajority requirement for amending the Senate Rules.”

What is the difference between saying that the majority of the Senate “would adhere” to the supermajority requirements, on the one hand, and that it “favored” those requirements, on the other? The latter suggests that the majority was exercising a choice, rather than complying with an obligation.

This interpretation would seem to be confirmed by the 2005 article’s ensuing observation: “These three episodes show that the Senate has long had at least the theoretical power to change its rules to allow majority cloture.” However, “the Senate has consistently declined to exercise” this “theoretical power” for two reasons. First, it is in the self-interest of the majority party, which recognizes it will not be in the majority forever, to maintain supermajority cloture. Second, invoking majority cloture to change the rules would threaten the entire edifice of the Senate legal system, which depends to a large extent on unanimous consent to function. Chemerinsky (in 2005) concludes that “respect for the Senate rules has always seemed in the long-term interest of both the majority and the minority because only by following the rules can they maintain the system that keeps the entire institution running.”

Reconciling the 1997 and 2005 articles is not exactly easy. As I understand what Chemerinsky was saying in 1997, the Senate rules were unconstitutional because they prevented a simple majority from changing the rules. Thus, the Senate should have upheld the 1957 Nixon and 1969 Humphrey rulings and rejected the 1975 Mansfield point of order, not merely as a matter of wise choice, but as a matter of constitutional obligation. Its failure to follow the Constitution in these rulings prevented a simple majority from invoking cloture, and therefore necessitated judicial intervention to vindicate the majority’s constitutional rights.

In 2005, he seems to be saying something quite different, at least at first blush. First, he emphasizes that the Senate majority has the “theoretical power” to change the rules. By using the word “power” rather than, say, “authority,” Chemerinsky may mean only that the Senate could have voted either way on the propositions presented, which is a truism. I am not sure what is meant by “theoretical,” though perhaps he intends to suggest that the Senate itself may not have felt unconstrained in the exercise of this power.

This in itself is not necessarily inconsistent with the 1997 article. But the 2005 article goes on to explain why the Senate has “consistently declined” to exercise this power, not in terms of the Senate’s misunderstanding of the Constitution (which would seem to be the conclusion mandated by the 1997 article), but in terms of the Senate’s desire to maintain the coherence of its own legal system.

And the 2005 article does not stop there. Not only does it suggest that the Senate could legitimately refuse to allow its rules to be revised by a simple majority vote, it says the Senate ought to refuse to do so. Chemerisnksy says it would “wrong” to “change the rules without following the Senate’s rules.” The use of a parliamentary ruling to permit majority cloture on a rules change, such as was unsuccessfully attempted in 1957, 1969 and 1975, would be a “nuclear option” that would destroy the very foundation of the Senate as an institution:

If the nuclear option is used to change the rules for the filibuster, it can be used to change literally any Senate rule. The Senate, as it has existed for over 200 years, will fundamentally change. No longer will the majority of Senators need to heed the views of the minority. Any Senate rule protecting the Senate’s minority could be changed through the same procedural device used to abolish the filibuster for judicial nominations. This could destabilize the committee system, enabling a majority to bring a bill to the floor without consideration and over the opposition of a large minority.

Note that Chemerinsky (in 2005) contends that the use of the “nuclear option” would “wrong,” not “illegal” or “unconstitutional.” Yet even this seems clearly contrary to the 1997 article, which argues that the Senate is constitutionally required to permit a simple majority to change the rules. It can’t be “wrong” to do something that the Constitution requires, can it?

Figuring out whether the 1997 and 2005 Chemerinsky articles can be reconciled with each other is a task I will have to leave to another day. For now, suffice to say that neither is consistent with the December 12 letter’s description of Senate precedent.

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