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The Right Way to Change the Senate Rules: A Response to Ilya Shapiro and Others

Ilya Shapiro argues here that Senate Majority Leader Mitch McConnell should use the nuclear option to eliminate the filibuster for Supreme Court nominees. Like many others, he does not seem to have any rule of law concerns with the use of the nuclear option, but it is not clear that he fully understands it either.

Shapiro notes that he “had been arguing to colleagues that McConnell should preemptively use his majority to eliminate the judicial filibuster, maybe even before Trump is inaugurated [but] a friend with intimate knowledge of Senate procedure informed me that it couldn’t be done in the abstract regardless”:

That’s because eliminating judicial filibusters isn’t a matter of changing the Senate rule on “cloture,” which says that 60 votes are needed to proceed to any final vote (short of “reconciliation”—see Obamacare—and other special situations). This rule has never been changed: Reid simply had the Senate majority adopt a “precedent,” in the context of D.C. Circuit nominee Patricia Millett, that cloture shall mean 51 votes for non-Supreme Court nominees.

Shapiro is right about what Senator Reid did on November 21, 2013 (Reid raised a point of order in the context of a particular nomination), but he is wrong (or his friend is wrong) that this is the only way to exercise the nuclear option. McConnell could exercise the nuclear option “in the abstract” for two reasons. First, McConnell could simply offer a motion to amend the Senate rules and then raise a point of order that cloture on such a motion is by a simple majority. The presiding officer would then presumably rule against the point of order, McConnell would appeal the ruling to the full Senate, and the Senate (acting by a simple majority) would reverse the presiding officer’s ruling. Following the “logic” of the Senate’s November 21, 2013 exercise of the nuclear option, this action would set a “precedent” permitting the Senate to end debate on motions to amend the rules by simple majority.

Such an action would be wrong because Rule XXII clearly requires a two-thirds vote to end debate on a motion to amend the rules, but it would actually be a less lawless (note I did not say “lawful”) means of changing the filibuster than merely setting a “precedent” that contradicts the plain text of the written rule. For example, suppose the Senate used this method to change Rule XXII so that it now required only a simple majority to end debate on either motions to amend the rules or on any nomination, but continued to require a supermajority to end debate on legislation. If subsequently an attempt were made to use the nuclear option to end the legislative filibuster, it might be persuasively argued that the November 21, 2013 precedent was no longer valid and that the proper means of changing the rules is to amend them, rather than to pretend that they say something else.

The second reason that Senator McConnell could seek to change the filibuster rule outside the context of a particular nomination or other pending measure is that this is how opponents of the filibuster have been trying to change or eliminate it for about a century. In fact, it was in 1917 that Senator Thomas Walsh first argued that the Senate rules could be changed at the beginning of a new Congress by a simple majority acting under “general parliamentary law.” This argument never prevailed in the Senate but it was frequently advanced over the next 100 years by senators who earnestly contended that the beginning of a new Congress was the only time that the rules could be changed by the action of a simple majority. At the start of at least six different Congresses from 1953-75, serious attempts were made on the floor to change Senate rules based on this theory. See Richard A. Arenberg & Robert B. Dove, Defending the Filibuster 117-41 (2012). In more recent years this theory was championed by senators such as Tom Udall and Jeff Merkley, supported by a group of noted legal academics.

As long-time readers may recall, I am not a big fan of this theory. (see this post and the 9 additional posts cited therein). I might even have made a bit of fun of it from time to time. But at least it was an argument, supported by actual reasons and advanced by distinguished senators and academics. True, the procedure for adopting this theory would have been the same as that used on November 21, 2013 (a ruling by the presiding officer followed by an appeal to the full Senate), which gave rise to well-grounded fears that it would soon render Senate rules subject to the whim of the majority. As Senator Vandenberg warned in a related context in 1948, it would mean that “regardless of precedent or traditional practice, the rules, hereafter, mean whatever the Presiding Officer of the Senate, plus a simple majority of Senators voting at the time, want the rules to mean. We fit the rules to the occasion, instead of fitting the occasion to the rules.”

In theory, however, the version of the nuclear option promoted by Senator Walsh and his successors had some limiting principles: it could only be employed at the start of the Congress and it involved a formal change to the rules, not merely a re-interpretation. The Walsh nuclear option was a wolf in sheep’s clothing, and a poorly-clad one at that, in part because these limiting principles were unlikely to hold. For example, there was no convincing reason why the nuclear option should be confined to the start of a new Congress.

What the Senate did on November 21, 2013, on the other hand, was supported by no principles, limiting or otherwise. As noted in my previous rant (er, post) on this subject, it seems to stand for nothing more than the proposition that “bad faith adjudication is an acceptable means of ‘changing’ the governing law.” As Justice Scalia would have said, this wolf comes as a wolf.

It is understandable that Shapiro and others are impatient with the Senate’s arcane rules and want to get on with confirming a constitutional conservative to the Supreme Court. Thus, Lew Uhler and Peter Ferrara urge here that Senator Reid’s unilateral termination of the filibuster for other nominations “should now be extended to Supreme Court appointments as well” because “[t]urnabout is fair play.” But this rationale, which is more suited to the schoolyard, will unravel what is left of the Senate’s legal system and further undermine respect for the rule of law. In other words, it will contradict the purpose of putting a constitutionalist on the Court in the first place.

(Incidentally, Uhler and Ferrara’s other suggestion of requiring a “talking filibuster” would be permissible because no rules change is needed for that).

As arduous as it may be, the right way for Senate to move forward is to seek the consensus necessary (meaning two-thirds of the Senate) to enact formal changes to the Senate rules. Whether these rules ultimately modify, repeal or reaffirm the use of the filibuster is up to the Senate. What matters is that the Senate decisively repudiate the use of the nuclear option that occurred on November 21, 2013. Only then will it be able to begin rebuilding its legal system.

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