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The Filibuster, the Nuclear Option and the Rule of Law

Erick Erickson argues here that Senate Republicans would be making a “foolish mistake” if they vote to scrap the filibuster “in its entirety.” He makes a distinction among three different filibusters: (1) the filibuster for executive appointments excluding Supreme Court justices; (2) the filibuster for Supreme Court justices; and (3) the filibuster for legislation. Erickson accepts, without necessarily approving, that the two nomination filibusters have been or will be eliminated through use of the so-called “nuclear option,” but he contends that the legislative filibuster should be preserved as an essential tool to fight for limited government.

We will not address here the policy question of whether the preservation of the filibuster, in whole or in part, is a good idea. Instead, I want to discuss the filibuster’s current status under the law of the Senate and the implications of the nuclear option for the Senate and the rule of law.

Senate Rule XXII provides in part:

Notwithstanding the provisions of rule II or rule IV or any other rule of the Senate, at any time a motion signed by sixteen Senators, to bring to a close the debate upon any measure, motion, other matter pending before the Senate, or the unfinished business, is presented to the Senate, the Presiding Officer, or clerk at the direction of the Presiding Officer, shall at once state the motion to the Senate, and one hour after the Senate meets on the following calendar day but one, he shall lay the motion before the Senate and direct that the clerk call the roll, and upon the ascertainment that a quorum is present, the Presiding Officer shall, without debate, submit to the Senate by a yea-and-nay vote the question:

“Is it the sense of the Senate that the debate shall be brought to a close?” And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn — except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting — then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.

Note that this rule does not provide for three different filibusters. It applies to ending debate on “any measure, motion, other matter pending before the Senate, or the unfinished business,” and it makes no distinction between matters related to nominations and those related to legislation, much less among different kinds of nominations. The only distinction it makes is between a measure or motion to amend the Senate rules and all other matters, with the former requiring a larger supermajority (two-thirds of senators present and voting) to bring debate to a close.

The idea of three filibusters stems from the Senate’s November 21, 2013 exercise of the “nuclear option.” In that action the Senate purported to eliminate the filibuster with respect to all nominations save those to the Supreme Court. According a February 15, 2016 Washington Post opinion piece by Senator Harry Reid:

In response to unprecedented Republican obstruction, Democrats changed the Senate rules in 2013 to allow qualified nominees to be confirmed by a simple majority vote, instead of 60 votes. This change alleviated judicial emergencies across the country by allowing a flood of qualified nominees to be confirmed. (We stopped short of changing the threshold for Supreme Court nominees—maybe that was a mistake).

(emphasis added).

Similarly, in October 2016, Reid was quoted as saying: “I really do believe that I have set the Senate so when I leave, we’re going to be able to get judges done with a majority. It takes only a simple majority anymore. And, it’s clear to me that if the Republicans try to filibuster another circuit court judge, but especially a Supreme Court justice, I’ve told ‘em how and I’ve done it, not just talking about it. I did it in changing the rules of the Senate. It’ll have to be done again.” (emphasis added).

So Reid believes that the exercise of the nuclear option “changed the Senate rules.” The Senate, of course, has the constitutional authority to “determine the Rules of its Proceedings” (art. I, §5, cl. 2), which undoubtedly includes both the power to make and change its rules and the the power to interpret and apply them to particular situations. The first is a quasi-legislative power (analogous to enacting and amending laws) and the second is a quasi-judicial power (analogous to interpreting and applying the governing constitutional or statutory law).

The fact that the Senate has both these powers, however, does not make them indistinguishable. When the Senate enacts a rule, it is presumably bound to comply with that rule unless or until it is rescinded, modified or waived. If there is a question about how to interpret or apply the rule, it is (again presumably) bound to do so in good faith.

In response to a prior post on this issue, Professor Tillman suggested the possibility that the Senate’s authority to “determine the Rules of its Proceedings” might not give it power to promulgate general rules at all, but merely to vote on particular procedural questions as they arise in the course of legislative proceedings. If this were so, the Senate would lack the power to enact any rule it was bound to respect, and its standing rules would be nothing more than guidelines.

This argument seems to me to be far-fetched in light of both constitutional text and the historical practice of both houses. (To be clear, Professor Tillman did not contend that the argument was correct, only that it was possible). Determining the “rules” of proceeding suggests the establishment of generally applicable standards, not merely the determination of discrete procedural questions. If only the latter had been intended, the Constitution would more likely refer to the “manner” of proceeding. Moreover, both houses have always understood themselves to have the power, if not the obligation, to establish binding rules of proceeding which, in Jefferson’s words, “become the law of the House” and operate as a check on “irregularities and abuses” which the “wantonness of power is but too often apt to suggest to large and successful majorities.” Jefferson’s Manual, section 1.

In any event, no one in the Senate has offered Tillman’s theory as a justification or explanation for the exercise of the nuclear option. Adopting such a theory would, I think, raise serious questions about the enforceability of the Senate’s rules in other contexts, such as with respect to ethical standards for senators and staff or with regard to obligations imposed on witnesses at Senate hearings.

As far as I know, the closest thing to an authoritative explanation of the Senate’s November 21, 2013 action is contained in a CRS report, which states:

On November 21, 2013, by overturning a ruling of the chair on appeal, the Senate set a precedent that lowered the vote threshold required by Senate Standing Rule XXII for invoking cloture on most presidential nominations. The precedent did not change the text of Rule XXII of the Standing Rules; rather, the Senate established a precedent reinterpreting the provisions of Rule XXII to require only a simple majority of those voting, rather than three-fifths of the full Senate, to invoke cloture on all presidential nominations except those to the Supreme Court.

CRS Report R43331, Majority Cloture for Nominations: Implications and the “Nuclear” Proceedings (Dec. 6, 2013) (emphasis added).

As CRS observes, it is impossible to describe the Senate’s action as “changing” Rule XXII in any ordinary sense. The text of the rule remains as it was before the Senate’s action. Moreover, no one offered “a measure or motion to amend the Senate rules,” which would have been debatable under Rule XXII unless and until two-thirds of the senators present and voting agreed to end debate. By a process of elimination, therefore, CRS reasonably concludes that the Senate must have been engaged in an act of interpreting or “reinterpreting” the rules.

The Congressional Record for November 21, 2013 does not fully support either the Reid or CRS positions. In form, the action taken by the Senate resembled an adjudication of the meaning of Rule XXII. Thus, Reid triggered the nuclear option by stating the following:

I raise a point of order that the vote on cloture under rule XXII for all nominations other than for the Supreme Court of the United States is by majority vote.

Cong. Rec. S8418 (daily ed. Nov. 21, 2013). Reid’s point of order makes a claim about the voting rule as it currently exists under Rule XXII. When the President pro tempore (Senator Leahy) rules that “[u]nder the rules, the point of order is not sustained,” Reid appeals this ruling to the full Senate. The Senate, by a simple majority vote, decides in the negative on the question: “Shall the decision of the Chair stand as the judgment of the Senate?” Id. at S8419. Thus, the Senate overruled Leahy’s decision and sustained Reid’s point of order. On its face this action appears to be an adjudication of the proper interpretation and application of Rule XXII.

Yet what manner of interpretation be this? No senator offered any explanation of how Rule XXII’s all-encompassing language could be read to exclude nominations, much less a subset of nominations, from the requirement of a three-fifths supermajority to end debate. Senator Orrin Hatch has subsequently suggested, perhaps tongue in cheek, that the Senate had in effect “interpreted” the number specified in Rule XXII (three-fifths) to mean a different number (a simple majority). See Orrin G. Hatch, How 52 Senators Made 60 = 51, 25 Stan. L. & Pol. Rev. 9 (Mar. 9, 2014). See also Richard Arenberg, ‘Nuclear Option’ for Supreme Court nominees will damage Senate (Nov. 16, 2016) (noting the Senate had “creat[ed] the new precedent that ‘three-fifths’ or 60 senators means a simple ‘majority’” but observing “[i]t doesn’t take difficult math or much knowledge of the English language to see that this is ridiculous”). It is safe to say, however, that none of the senators who voted for the nuclear option would offer this as the basis for their “interpretation.”

Moreover, the events of November 21, 2013 do not suggest that the Senate was purporting to “interpret” Rule XXII. For example, Senator Leahy, as the presiding officer, initially ruled against Reid’s point of order. On appeal, however, Leahy voted to overturn his own ruling. He then announced:

Under the precedent set by the Senate today, November 21, 2013, the threshold for cloture on nominations, not including those to the Supreme Court of the United States, is now a majority. That is the ruling of the Chair.

S8418.

The setting of a “precedent” is a judicial act involving the exercise of judgment. Yet by voting to overturn his own ruling, Leahy confirmed that the Senate was engaging in an act of will, not judgment, and by announcing that the threshold for cloture was “now a majority,” Leahy effectively acknowledged that the rules had been changed, not merely interpreted or reinterpreted. Other senators who spoke, whether they supported or opposed the nuclear option, agreed that its exercise effectuated a “change” to the Senate rules. See, e.g., S8419 (Sen. Harkin); S8420 (Sen. Grassley); S8423 (Sen. Sessions).

Senator Levin, who voted against the nuclear option, noted that its exercise did not merely change the cloture rule for certain nominations, but the Senate’s procedure for changing the rules themselves. S8421 (“A new precedent has now been set, which is that a majority can change our rules.”).  As he explained, “[i]f a Senate majority demonstrates it can make such a change once, there are no rules which bind a majority, and all future majorities will feel free to exercise the same power—not just on judges and executive appointments but on legislation.” S8422.

Some might argue that if the Senate was not engaging in an act of interpretation, perhaps it was performing a different judicial function, namely determining the constitutionality of the Senate rules. As we have discussed before, a number of scholars have advanced theories that that the Senate’s filibuster rules (or their entrenchment) violate the Constitution. Acceptance of one of these theories might support the Senate’s judicial determination that Rule XXII cannot be constitutionally applied, either in general or under particular circumstances. Professor Amar, for example, says:

It is the right and duty of each senator to adjudicate for herself whether Rule 22 has in fact come to operate as an improper rule of decision rather than a proper rule of debate. And in adjudicating that question, the Senate, operating as a constitutional court of sorts, acts by majority rule, just as the Supreme Court itself does when adjudicating constitutional (and other) questions.

Akhil Amar, America’s Unwritten Constitution 368-69 (2012).

Did the Senate think it was adjudicating the constitutionality of Rule XXII on November 21, 2013? Neither Senator Reid nor CRS seem to think so. There appears to be no mention of any constitutional objection to Rule XXII in the Congressional Record of November 21, 2013. Moreover, it is hard to see how Rule XXII could be unconstitutional as to all nominations except those to the Supreme Court. As far as I know, no senator has offered an explanation as to how that could be so.

Note that I am not merely saying that no senator has offered a good explanation. If that were the case, it would be hard to distinguish the Senate’s action from that of many courts (even the Supreme Court!), which have been known to offer reasons that seem flimsy, result-oriented or downright laughable in support of their decisions. But the fact that there is reasoning, however preposterous, provides some check on and discipline of the exercise of the judicial function. The reasoning is subject to public and academic scrutiny, and criticism of bad, or bad faith, reasoning can have a regulative effect. See David Pozen, Constitutional Bad Faith, 129 Harv. L. Rev. 885, 953-54 (2016). And a court must consider that its reasoning can be used as authority in future cases.

In the case of the Senate’s exercise of the nuclear option, there is no reasoning to evaluate or criticize. Based on the evidence discussed above, the most reasonable conclusion is that the Senate consciously changed its rules under the barest pretext of “interpreting” them. In doing so, it tacitly accepted the premise that bad faith adjudication is an acceptable means of “changing” the governing law. This in turn suggests that the Senate does not understand, or chooses not to recognize, the distinction between a legislative act of will and a judicial act of judgment, which is fundamental to the separation of powers and the rule of law.

My impression is that most people who follow the Senate understand this, but they basically shrug and say “well, the Senate is a political body, what do you expect?” But it is folly to think that the corruption inherent in the nuclear option has no wider implications for our constitutional system. The Senate, for example, has several judicial functions among its constitutional responsibilities, including judging contested elections and trying all impeachments. What is to stop the Senate’s creative “interpretation” of numbers from affecting an election contest? Who is to say that 52% of the vote is more than 48% in the post-nuclear Senate?

Of more immediate concern is the Senate’s role in providing advice and consent for nominations to the federal judiciary. Senators routinely demand that nominees be faithful to some conception of the rule of law, whether in terms of fidelity to constitutional or statutory text, original intent/meaning or stare decisis. The Senate’s exercise of the nuclear option represents a trifecta of lawlessness in that it ignores the plain meaning of Rule XXII, circumvents the clear intent of the drafters that the rules may not be changed by a simple majority, and sets aside its own precedent without even a proffered justification. Why should nominees take the Senate seriously when it runs its own legal system so cavalierly?

Right now the options on the Senate’s table appear to be (1) accept the results of the 2013 nuclear option but make no further changes to the Senate rules; (2) exercise the nuclear option with respect to Supreme Court nominations but not legislation; or (3) exercise the nuclear option with respect to both Supreme Court nominations and legislation. Each of these options is equally bad from a rule of law standpoint. Having established the principle that the Senate rules are meaningless, it scarcely matters which rule the Senate chooses to follow for the moment.

As I see it, the Senate has only two viable options if it wishes to undo the damage from the 2013 exercise of the nuclear option. First, it can revisit the 2013 action and reverse it as a lawless act under the law of the Senate. The Senate would then be free to make whatever changes it deems warranted (i.e., if they can command assent of two-thirds of the Senate) by the formal mechanism provided in the Senate rules. The 2013 nuclear option would then become the Senate’s own Dred Scott anticanon.

The second option would be to recognize that the 2013 exercise of the nuclear option in effect overthrew the Senate’s legal regime which had existed up to that point. As we have discussed before, while the Constitution allows (and perhaps mandates) each house to establish a legal system that entrenches rules, practices and precedents, each house retains the authority to cast off this legal system if it chooses. If the exercise of the nuclear option is allowed to stand, the Senate must recognize that it effectively hit the reset button on the Senate’s legal system. It must then begin the hard work of constructing a new system that respects basic rule of law norms (and perhaps protects against a transient majority carelessly blowing up the system again).

The stakes are high. I hope someone in the Senate recognizes this.

 

 

 

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