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The Nuclear Option, the Law of the Senate and the Conscientious Senator

This is my final post (at least for this Congress, hopefully) on the filibuster and the entrenchment of Senate rules. For the first 9 entries in this series, see below:

Legal Scholar Letter to the Senate on Procedures for Changing the Rules

Professor Bruhl and Senate Continuity

Professor Chemerinsky and Senate Precedent on Changing the Rules

Senate Rules from the Internal Point of View

Entrenchment and the Academic “Consensus”

Entrenchment Reconsidered (Part I)

Entrenchment Reconsidered (Part II)

Professor Chafetz and the “Constitutionally Conscientious Senator”

Did the Senate Flub Its Cinderella Moment?

In this post, I will consider the so-called “nuclear option,” its legality or legitimacy under the law of the Senate, and how a “constitutionally conscientious Senator” should vote with respect to its exercise.

The “nuclear option” (also sometimes called the “constitutional option”) may be defined as the use of a parliamentary ruling to declare the Senate rules unconstitutional insofar as they require a supermajority to end debate on a proposed change to the rules. If such a ruling were upheld by a simple majority, it would no longer be possible for a minority of senators to block rules changes (depending on the scope of the ruling, either at the beginning of a Congress or at any time). This would effectively end the (allegedly) unconstitutional entrenchment of the Senate rules claimed by the signatories to the December 12 legal scholar letter.

As explained below, I believe that the “nuclear option” is most reasonably understood as illegal under the existing law of the Senate, in the sense that its use would require overruling a substantial body of Senate precedent. Furthermore, it is believed by most senators, including some that would be willing to invoke the nuclear option if need be, that its use would entail, at the very least, substantial institutional costs in terms of the stability and perceived legitimacy of the Senate’s legal system. At the most, the nuclear option would effectively destroy the Senate’s existing legal system and require the creation of a new system of rules and precedents more or less resembling the House’s majoritarian procedures.

The Senate has previously declined to exercise the nuclear option on a number of occasions, including in 2005 when the Republican majority considered using it to abolish the filibuster with respect to judicial nominations and, most recently, on January 24, 2013, when the Democratic majority considered using it to enact major reforms to the filibuster generally. The evidence from these episodes indicates that many senators, including the “swing senators” (majority senators who refused or were reluctant to support the use of the nuclear option), were concerned about both the legitimacy of the nuclear option under the law of the Senate and the practical effects that it would have on the Senate as an institution.

Rather than trying to convince senators that they misunderstand the Senate’s own traditions and precedents, or that they overstate the likely institutional consequences of the nuclear option, it seems to me that the scholars and academics who have opined on these issues would provide a more useful service to the Senate by proposing constitutional solutions that can reasonably be achieved under the Senate’s existing rules. At the conclusion of this post, I suggest one possible solution.

The Senate’s Legal System

The Senate’s rules, procedures and precedents may be thought of as part of the Senate’s legal system. Collectively, they form a “constitution” of a sort. See Aaron-Andrew Bruhl, “Burying the ‘Continuing Body’ Theory of the Senate,” 95 Iowa L. Rev. 1401, 1461 (2010) (“A chamber’s rules of proceedings are, in a sense, its very own constitution.”). The Senate’s legal system includes what H.L.A. Hart calls “rules of recognition” (the criteria by which valid rules are ascertained), “rules of change” (the process for amending the existing rules) and “rules of adjudication” (the process of making authoritative determinations of how the rules apply to a particular situation). H.L.A. Hart, The Concept of Law 94-97 (1961).

The Senate’s legal system does not exist in a vacuum, but rests on the authority of the U.S. Constitution, which creates the Senate and empowers it “to determine the rules of its proceedings.” To the extent that a Senate rule conflicts with a constitutional command, the rule is invalid under the Senate’s rule of recognition.

This statement should not be confused with the assertion that the Senate can or should ignore its duly enacted rules or prior precedents when a claim of constitutional invalidity is made. Typically, we think of a claim of constitutional invalidity as being resolved by one entity (a court) that has the authority to review the validity of the actions of another (e.g., a legislature), though the actions of the latter may be entitled to a presumption of validity. In the Senate’s legal system, however, the Senate performs both the legislative function (enacting rules) and the adjudicative function (ruling on claims of constitutional invalidity). One would no more expect the Senate to disregard its prior decisions on matters of constitutional interpretation than the Supreme Court to disregard the doctrine of stare decisis with respect to constitutional questions.

Senate Precedent and the Nuclear Option

The December 12 letter asserts the existence of “numerous precedents confirming a new Senate’s authority to change its rules by majority vote.” However, the January 24, 2013 debate and vote confirms that most senators do not read the Senate precedents that way.

Senator Levin covered the Senate precedents in some detail. The December 12 letter relies on the rulings of three Vice Presidents (Nixon, Humphrey and Rockefeller) as they presided over the Senate. Senator Levin explained:

In those instances when a Vice President has advised that tabling a point of order against a motion to limit debate on a rules change by a simple majority amounted to Senate approval of that motion, the Senate has either voted to reject that interpretation outright or voted against tabling the point of order.

(S.263) None of Levin’s colleagues rebutted or seriously challenged his analysis. Certainly no one claimed that Senate precedent had somehow established the legitimacy of the nuclear option, as suggested by the December 12 letter.

In addition to the Senate’s “judicial” precedents, its formal rules establish that a simple majority cannot close debate on a motion to amend the rules. As Levin noted, “[t]he current Standing Rules of the Senate spell out clearly the process by which the rules of the Senate may be amended.” (S.261) Because those rules were promulgated long after 1917, when Senator Walsh first proposed the legal theory on which the “nuclear option” is based, there is no reasonable way to read those rules other than as a rejection of that legal theory.

I argued a couple of months ago that the true state of the Senate’s precedents on the “nuclear option” are “demonstrated by the following developments since 1917: the Senate has continued to treat its rules as continuing from Congress to Congress, and has never readopted or changed them on the first day of a new Congress; (2) the Senate amended its rules to provide explicitly that they continue from Congress to Congress, and may only be changed in accordance with the rules themselves; (3) the Senate has never purported to act under general parliamentary law at the outset of a new Congress; and (4) the Senate has never permitted a simple majority to end debate on a rules change, despite repeated claims by the anti-entrenchment camp that it had the power to do so.”

The events of January 24 do not change this assessment. Of course, they will not end debate about the meaning of Senate precedent either. Some will argue that the rules changes on January 24 were possible only because of the threat of the nuclear option, and that therefore the Senate, while not formally validating the nuclear option, implicitly recognized its legitimacy. Some will continue to question the logic, consistency or internal coherence of the Senate’s precedent (as Professor Bruhl does with respect to the “continuing body” issue). Others will suggest that the ration deciendi of a legislative action can never truly be determined, given that senators may have very different reasons for their votes. They argue that most senators do not vote based on reasons of legal (or any) principle, even if they purport to do so.

Yet I think that most fair-minded observers of the Senate in general, and of the January 24 debate in particular, will acknowledge three points. First, that Senator Levin’s position, whether or not one ultimately agrees with it, is well-grounded in the standard materials of legal argument and analysis. Cf. M. Tushnet, Legal Reasoning in Congress, 95 Iowa L. Rev. 81, 83 (2010) (noting that Bruhl is careful not to claim that the ordinary “modalities” of constitutional analysis support a single conclusion with regard to the Senate’s status as a “continuing body”). Second, that exercise of the nuclear option would at least to a substantial degree resemble a landmark Supreme Court case that overruled a longstanding line of precedent. Finally, that many senators, including some that might be willing to use the nuclear option if absolutely necessary, were “alarmed that the move could fundamentally change the Senate.” See also this blog post by Professor Sarah Binder, who notes “the absence of [a] majority willing to bear the costs of asserting the majority’s right to change its rules,” and Richard Arenberg’s comment that the outcome of the January 24 debate was dictated by the fact that “more and more senators in the Democratic caucus were coming to grips with the real consequences of ignoring the Senate’s rules and precedents.”

Let us now turn to considering what those “costs” and “consequences” might be.

 

Precedent versus “Super-Precedent”

Adherence to precedent plays a significant role in any legal system, and the Senate is no exception. As Professor Michael Gerhardt explains:

The fact that the Senate has invariably amended its rules in accordance with its rules carries enormous weight in the Senate. Indeed, senators have always recognized the influence of nonjudicial precedent. This sort of precedent includes historical practices, which in turn include past constitutional judgments at institutional and individual levels.

M. Gerhardt, “The Constitutionality of the Filibuster,” 12 Constitutional Commentary 445, 478 (2004). Within the Senate legal system, these precedents “facilitate the same institutional ends as do judicial precedents, including consistency, stability, predictability and reliance.” Id. 449.

This does not mean that legislative precedents can never be reversed. They can be (as can judicial precedents). Reversing a precedent, however, entails a cost to the legal system, one that varies in accordance with the importance of the overruled precedent. Some precedents may qualify as “super-precedents” (or, as Professor Charles Fried quipped during the Roberts confirmation hearing, “super-duper precedents”) because of their foundational importance to the legal system in question. Professor Gerhardt categorizes one type of super-precedent as establishing “foundational institutional practices,” which “create and maintain particular modes of operation or particular practices that become indispensable to the functioning of our government.” M. Gerhardt, “Super Precedent,” 90 Minn. L. Rev. 1204, 1206 (2006).

Would the exercise of the nuclear option overrule a Senate “super-precedent”? I think one could make a pretty strong case that it would. This is particularly true if the nuclear option rejects, in whole or in part, the Senate’s status as a continuing body, a principle that the Senate has adhered to and repeatedly reaffirmed since its first days. Even Professor Bruhl, the leading critic of the continuing body theory, acknowledges that “challenging the Senate rules regime [might be] like arguing that Marbury v. Madison was wrongly decided.” 95 Iowa L. Rev. at 1459. Marbury, needless to say, would be the paradigmatic super-precedent.

It is also worth noting that senators who endorse the notion of “super-precedent” when questioning judicial nominees may be particularly reluctant to overturn a Senate “super-precedent.”

 

Institutional Prestige

The fallout from the nuclear option would extend beyond the Senate itself. Gerhardt notes “the Senate has an institutional incentive to invest resources in creating and formulating nonjudicial precedent, so that other branches of government and the public have confidence in its constitutional judgments.” 21 Constitutional Commentary at 479. The Supreme Court, for example, has accepted the Senate’s determination that it is a “continuing body” without much in the way of independent analysis. Were the Senate to repudiate that determination, the Court might be less likely to defer to the Senate’s legal and constitutional judgments in the future.

Judicial confidence in the Senate’s constitutional judgment is also supportive of the political question doctrine, ensuring that certain matters remain within the exclusive jurisdiction of the Senate. Cf. Common Cause v. Biden, No. 12-775, slip op. at 45 (D.D.C. Dec. 21, 2012) (finding that the political question doctrine bars a judicial challenge to the filibuster because “reaching the merits of this case would require an invasion into internal Senate processes a the heart of the Senate’s constitutional prerogatives as a House of Congress, and would thus express a lack of respect for the Senate as a coordinate branch of government.”).

To quote Gerhardt again:

The filibuster falls within an area in which the Constitution clearly invests special power within the Senate—namely, to devise the rules to govern its internal affairs. The Senate’s procedural rules matter most to the Senate itself, and the institution has devoted considerable resources to their maintenance, including a full-time Parliamentarian and the Office of Senate Legal Counsel. The Senate has also considered the constitutionality of the filibuster several times. Each time it has squarely upheld the constitutionality of the filibuster. If a court were to have followed a similar pattern, most people would be inclined to think that overruling precedent was not just becoming increasingly difficult, but well-nigh impossible.

21 Constitutional Commentary at 481.

Conversely, if the Senate were to reverse its position at this late date, its reputation for reasoned constitutional deliberation would undoubtedly suffer. It is not enough that supporters of the nuclear option can make a plausible case that the Senate’s precedents were mistaken; the doctrine of stare decisis means that precedents are generally to be followed even if incorrect. Nor does it seem likely that the overruling of precedent by a majority intent on overcoming minority obstruction would be widely viewed as a merits-based decision. If, for example, the Senate were to “bury” the “continuing body” theory after two centuries of following that theory, most observers will suspect foul play, not disinterested legal analysis.

 

Self-Interest and Minority Rights

It is important to consider the role of political self-interest in debates over the use of the nuclear option. By definition, the nuclear option benefits the majority and disadvantages the minority. It is therefore no great surprise (though still mildly disappointing) that most senators have changed their position on the legitimacy of the nuclear option depending on whether they found themselves in the majority or minority. Gerhardt observes that “in debating the filibuster, most senators have been on both sides and appear to have succumbed to petty partisanship.” 21 Constitutional Commentary at 473.

However, the defeat of the nuclear option this year, in 2005 and on earlier occasions has meant that there have always been enough majority senators willing to forsake the immediate benefit they would receive from a majoritarian Senate. In defending the Senate’s tradition and precedent, Senator Levin took special care to highlight examples of senators who had insisted on following the law of the Senate when it was against their interest to do so. Thus, he pointed to Senator Mansfield in 1975: “Although he supported the change in the rules, he opposed the use of the nuclear option or the constitutional option, to achieve it.” (S.259)

Levin particularly emphasized the example of Senator Inouye, who, in his maiden speech before the Senate, refused to support a version of the nuclear option to overcome a filibuster of civil rights legislation. (S.259, S.263-64). Levin quoted Inouye’s speech and then said:

Understand what was taking place here. Senator Inouye spoke as the Senate was debating whether to weaken the rights of the Senate minority, so that the Senate majority could end grave injustice by enacting civil rights legislation. Senator Inouye, a man who had himself felt the pain of racial discrimination, even during and after his remarkable service to this nation during World War II, used his first speech on this floor to war against the attempts “to destroy the power of the minority . . . in the name of another minority.”

(S.264).

These are not the only examples of senators who refused to support the nuclear option despite favoring the rules reform or substantive result that it would have accomplished. See generally R. Arenberg & R. Dove, Defending the Filibuster 117-41 (2012). That these senators viewed the existing rules as imposed binding obligation, which they were bound to respect even when contrary to their immediate interests, demonstrates that they saw the law of the Senate from the “internal point of view.” See The Concept of Law 87 (“Hence obligations and duties are thought of as characteristically involving sacrifice or renunciation, and the standing possibility of conflict between obligation or duty and interest is, in all societies, among the truisms of both the lawyer and the moralist.”).

The willingness of these senators to place obligation above interest should enhance confidence in their constitutional judgment. Cf. J. Chafetz, “The Unconstitutionality of the Filibuster,” 43 Conn. L. Rev. 1003, 1031, 1033 & nn. 191 & 205 (2011) (suggesting that legal “statements against interest” should be considered particularly reliable). It should be noted that no senator who supported the use of the nuclear option in the current Congress did so against his or her interest and that there are few, if any, historical examples of a senator doing so.

The Senate’s willingness to place legal obligations and minority rights above immediate majoritarian interests enhances its institutional prestige and strengthens the legitimacy of its legal system. During the January 24 debate on amending the rules, a number of senators stressed the importance of preserving the Senate’s tradition of protecting minority rights, which they viewed as essential to its institutional identity. Even supporters of the nuclear option felt obliged to declare that its use would not make the Senate into a purely majoritarian body. See S.255 (Sen. Harkin) (“We will not become the House.”).

 

Pragmatic Versus Legal Considerations

It may be argued that concerns about the effects on the Senate are merely pragmatic considerations, which are irrelevant to the majoritarian and anti-entrenchment principles that they find in the Constitution. But this seems too simplistic, even if one grants for argument’s sake that the Constitution establishes those principles.

Consider two possible reactions to the December 12 letter’s assertion that “no pre-existing internal procedural rule can limit the constitutional authority of each new Senate to determine by majority its own rules of procedure.” First, a conscientious Senator might accept the accuracy of this statement, but conclude that it does not require her to vote for the nuclear option. After all, if the constitutional violation claimed by the December 12 letter lies in the entrenchment of Senate rules, the mere existence of the nuclear option would seem to cure the violation by giving a majority the power to change the rules if it wishes to do so. The legal arguments made by the December 12 letter therefore may require the conscientious Senator to acknowledge the legitimacy of the nuclear option, but they do not obligate her to vote for its exercise. Instead, she would be free, for reasons of policy, prudence or institutional patriotism, to vote against the nuclear option.

Second, the conscientious Senator might accept the December 12 letter’s assertion that the Senate retains the constitutional authority to determine the rules of its proceedings by simple majority vote, but reject the implicit attempt to equate the authority to “determine” the rules with the exercise of an “unfettered choice” (to use Professor Bruhl’s term) regarding what the rules should be.

Indeed, it is undisputed that a simple Senate majority has the authority to determine the rules, at the beginning of a Congress or any other time, in the sense that it can decide parliamentary questions regarding the rules and their proper application to particular situations. It does not follow from this that the conscientious Senator can or should decide such questions without regard to the law of the Senate. To the contrary, it would seem most peculiar to fault a senator for following Senate precedent in this regard.

If in fact the Senate is performing a judicial or quasi-judicial function when it rules on parliamentary questions, as suggested by Professors Akhil Amar and Josh Chafetz, the types of pragmatic considerations discussed previously would seem perfectly relevant. The doctrine of stare decisis itself is essentially a matter of judicial policy, and its application involves consideration of pragmatic concerns such as the degree to which there has been reliance on the prior decision.

Even when no precedent is involved, it is widely, though not universally, believed that courts should exercise judicial restraint when the constitutionality of a legislative enactment is challenged. The doctrine of constitutional avoidance counsels against resolving constitutional questions if a case can be resolved on another ground. Less formally, a preference for narrow rulings, incremental change and grounds that engender the widest possible consent are among the passive virtues that mark judicial restraint.

It seems reasonable that the conscientious Senator would take a similar approach to invalidating a longstanding Senate rule. During the January 24 debate, some senators indicated that while they personally favored more sweeping reforms, they would support modest changes that could command broad supermajority assent. Senator Cardin, for example, explained that while he would prefer a majority cloture rule, “it is the right thing to do to negotiate between the Democrats and Republicans rules that can withstand the test of time and be fair to both the majority and the minority.” (S. 257). Senator Leahy similarly expressed a willingness to accept a compromise because “it can be adopted by a supermajority vote instead of the kind of extended and damaging floor fight over the rules that would undermine any progress we hope to make.” (S. 269).

These types of pragmatic concerns are legitimately considered when the constitutionality of a Senate rule is challenged. See generally A. Bickel, The Morality of Consent103 (“no measures of pervasive application can or should rest on narrow majorities”); id. at 110 (“the basis of all law–judicial, legislative, or  administrative—is consensual.”).

 

Institutional Stability

Although the conscientious Senator will conclude that the nuclear option is illegal under the law of the Senate, she may also conclude, under some circumstances, that the Senate legal system is so dysfunctional that it ought no longer be followed. This decision might be analogized to a revolutionary overthrow of the Senate’s existing constitution or, as Bruhl suggests, to amending the U.S. Constitution outside the confines of Article V. See 95 Iowa L. Rev. at 1420 (“In some ways, the dispute over changing the Senate’s rules outside Rule V has resonances in the more famous controversies over whether amending the Constitution outside Article V is constitutional, unconstitutional, or extraconstitutional.”) (emphasis in original).

Put another way, while the Senate’s authority to “determine the rules of its proceedings” permits it to establish a legal system that entrenches rules and precedents (and indeed it would be impossible to have a legal system without some degree of entrenchment), the Constitution provides no mechanism for the Senate to entrench the legal system itself. The nuclear option is therefore constitutional (or, perhaps more accurately, not unconstitutional) not because the Constitution forbids entrenchment, but because the entrenchment of the “ultimate rule of recognition” (to use Hart’s term) is, in all legal systems, a matter of fact, not law. See The Concept of Law 106-10 (arguing that the ultimate rule of recognition, unlike the other rules of a legal system, can only be ascertained as an external statement of fact, not as an internal statement of law).

This may seem like a heavy amount of legal theory to bring down on a parliamentary question, but it may be necessary to bridge the gap between the anti-entrenchment theory offered by Professors John McGinnis and Michael Rappaport, among others, and the widespread view, in the Senate and elsewhere, that the nuclear option is not lawful under the law of the Senate and/or would drastically transform the Senate and its legal system. The distinction between what is lawful under the law of the Senate and what is constitutional under the U.S. Constitution may help resolve the apparent contradictions between Professor Chemerinsky’s 1997 and 2005 articles. Although the 1997 article declared the Senate’s rules to be “unconstitutional” to the extent they prevented a simple majority from changing the rules, the better understanding of its anti-entrenchment theory is that the Constitution does not prevent the Senate from exercising the nuclear option, which would then empower a majority to change the rules. Although the Senate has this “theoretical power,” the 2005 article warns that its exercise would be “wrong” because of the deleterious effect it would have on the Senate legal system.

As it turns out, Chemerinsky is not the only signatory of the December 12 letter to have expressed such concerns about the institutional consequences of the nuclear option. Thomas Mann, who signed the letter, co-authored a 2006 book (with Norman Ornstein) on congressional dysfunction. The book discusses the efforts of Senate Republicans in 1005 to use the nuclear option to eliminate filibusters of judicial nominees:

Senate rules and precedents were clear: the Senate is a continuing body because every election involves only one-third of its members, and the rules are a constant, able to be changed only if two-thirds agree. [Majority Leader] Frist proposed a radical alternative: achieve the same result by making a parliamentary point of order that extended debate on a pending judicial confirmation is out of order. . . .

The ploy here was laid out by Senate rules guru Martin Gold, an adviser to Frist. While he and other former Republican Senate staff members built the case that such a move was consistent with Senate precedents, the argument was lame. There was no mistaking he purpose and potential consequences of the nuclear option. The Senate would by fiat overrule an established procedural principle to serve the immediate interests of the president and respond to the demands of a vocal constituency. And in so doing, it would establish a precedent that would threaten to change the essential character of the institution, making the Senate much more like the House.

T. Mann & N. Ornstein, The Broken Branch 166 (2006).

Similar concerns about the institutional effect of the nuclear option are widespread in the Senate. During the January 24 debate, Senator McCain suggested that the nuclear option would have caused “a fundamental change in the Senate which maybe could never have been repaired.” (S.257) Senator Levin argued that “[i]t is critically important that that we not say those rules can be modified whenever the majority wishes to modify those rules or else we will lose not just the protection of the minority, which is so critically important to the history and purpose of the Senate, but it is critically important to the very continuity and stability of the Senate.” (S. 260).

Senator Mark Udall and former Senator Ted Kaufman also expressed these fears in the foreword to Defending the Filibuster: “[I]f the Senate were to employ a majoritarian way of doing business and adopt new rules by a simple majority vote at the beginning of a new Congress—as was suggested during the 111th Congress by a frustrated faction of our colleagues—we fear that it would trigger major and destabilizing changes in the role and nature of the Senate as a body.”

These concerns are well-founded because exercising the nuclear option would be in essence to push the reset button on the Senate, returning it to the point when it first assembled in 1790. The Senate would then be free to determine the rules of its proceedings unconstrained by the two centuries of rules and precedents, but its identity as an institution could be severely undermined.

 

Conclusion

This extended blog post endeavors to show that the nuclear option is correctly, or at least reasonably, seen by the conscientious Senator as illegal under the law of the Senate and/or deeply threatening to the Senate’s institutional prestige, stability and identity. As a consequence, we may anticipate that there are likely to be enough conscientious senators in the majority party (whichever it should be) to block the use of the nuclear option for the foreseeable future.

Professor Gerard Magliocca, another signatory to the December 12 letter, has suggested that the only people to benefit from this state of affairs “are professors who write about Congress.”  Perhaps, then, the academic community might set aside its self-interest to consider whether there are rules reforms which might both pass muster under the various anti-entrenchment theories and could obtain sufficient support to close debate under Senate Rule XXII.

A possible solution is suggested in footnote 214 to Professor Bruhl’s article on Senate continuity, where he notes “[t]here are various ways one might try to ensure that any decision that changes the Senate rules is done in a more principled and less opportunistically partisan way, such as by delaying the effective date of any change.” If, for example, a proposed change to Senate rules were submitted to the Rules and Administration Committee in the first session of a Congress, and was approved by the committee and by a majority of the Senate by the close of that session, it could be given privileged status in the first session of the next Congress, such that a simple majority could close debate. This would prevent rules changes done for immediate tactical advantage, ensure adequate deliberation, and, because of uncertainty as to which party would be in the majority in the following Congress, discourage measures unduly favoring the majority.

No doubt there are other worthy proposals that might be considered, and it is uncertain whether any such proposal would be able to pass. But if scholars were to coalesce around a proposal, perhaps the Senate would give it serious consideration. Its worth a shot.

 

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