On January 24, 2013, the Senate adopted certain rules changes that, according to published reports, will modestly restrict the use of the filibuster, but will not fundamentally alter the minority’s ability to block cloture on matters covered by Rule XXII. It accomplished these changes by adopting S. Res. 15, which provided a new standing order, and S. Res. 16, which amended the standing rules of the Senate. In addition, the Senate voted down S. Res. 5, offered by Senator Harkin, which would have made more extensive changes to the filibuster.
Professor Akhil Amar is very upset by these developments. According to Amar, “nothing has prevented the Democrats, legally speaking, from exercising their constitutional right (nicknamed the ‘nuclear option’) to insist, by a simple majority vote, that simple majorities should rule in the Senate.”
This strikes me as an oversimplification of Amar’s own position. As suggested in my last post, Amar’s position has not been that the Senate majority is entitled to insist on majority cloture as a pure act of will (or, as Professor Chafetz puts it, by the “application of brute force”). Rather he has argued that each senator has the “right and duty” to “adjudicate” whether “Rule 22 has in fact come to operate as an improper rule of decision rather than a proper rule of debate.”
The Senate may not have framed the legal issues in exactly the same way, but its debate over amending the rules certainly encompassed the questions of whether Rule XXII had been improperly used to block, rather than to facilitate, debate and whether the rules changes would better enable it to fulfill its intended purpose in the future. Professor Amar may not agree with how the Senate resolved these issues, but at least he should acknowledge that it grappled with them.
If Amar has a legitimate gripe, “legally speaking,” it is not with those who opposed the use of the “nuclear option.” Rather it is with the legal argument made by those who advocated the use of this option (which they prefer to call the “constitutional option”).
Senator Harkin, for example, asserted that “[e]ach new Congress—each time the Senate convenes after a new Congress forms—can by majority vote change its own rules.” (S254) This he contrasted with “attempting to change the rules in the middle of a Congress,” which he views as improper. See id. (“I mean, you can’t go changing rules every other week”); see also id. at S267 (Senator Udall) (“I don’t think that looking at our rules and amending them by a majority vote at the beginning of a Congress is dangerous”).
To bolster his legal position, Senator Harkin quoted from the December 12 letter (which, he took pains to note, was signed by “very prominent Republicans” Charles Fried and Michael McConnell). The December 12 letter endorses the distinction between changing the rules at the beginning of a new Congress and changing them at any other time, and Senator Harkin accurately quotes the letter in support of this proposition.
However, as we have seen, there is little constitutional merit in this proposition. Professor Amar agrees (though not for exactly the right reason). Two years ago he mocked the idea that “the Senate like Cinderella [has] the power to transform itself in only one limited moment, at the opening of a new Congress.” Amar found ridiculous the idea that there is something “magical” about “Day One” of a new Congress (a day which, he aptly noted, could be indefinitely extended by the Majority Leader in a “separate piece of magic”).
Many members of the Senate are equally unimpressed with the argument put forth by the December 12 letter. Senator Levin, in the course of a lengthy and detailed rebuttal to the arguments put forth in support of the nuclear option, offered this rejoinder to the “first day” argument:
Supporters of the nuclear option claim that a simple majority of Senators can force a rules change at the beginning of a Congress, but do not argue that they can do so at other times. There is no basis for the argument that the beginning of a Congress enjoys a special status for rules adoption or amendment that the remainder of a term of Congress does not. If the Constitution grants a simple majority of Senators the right to amend the rules of the Senate at the beginning of a Congress, when and how does that majority lose the right? This temporal distinction cannot be found anywhere in the Constitution.
(S262). Levin goes on to point out that attempts to base this distinction in House practice are groundless because the House “can and does amend its rules in the middle of a Congress.” Id.
What happened on January 24 was that the Senate considered the constitutional arguments made by Senator Levin, on the one hand, and by Senator Harkin and the December 12 letter, on the other, and it decided in favor of Senator Levin. As it ultimately has in every controversy over this issue since Senator Walsh originally raised it in 1917, the Senate ruled against the proposition that a simple majority can end debate. Discussing the Senate’s 1975 ruling on Senator Mansfield’s point of order, Levin observed: “the Senate did what it has always done when confronted with the questions of simple majority cloture on debate of a motion to amend the rules. It rejected it.” (S263). The outcome on January 24 therefore should have been no surprise to anyone.
Perhaps Amar believes that the supporters of the nuclear option would have won with better legal arguments. If so, he should focus his efforts on convincing the authors of the December 12 letter that their Cinderella story is too good to be true. Alternatively, Amar and his colleagues might read the full text of Senator Levin’s argument and consider that perhaps, just perhaps, Levin knows something about the law of the Senate that they do not.
If not, I suspect we will be back in two years listening to the same arguments in favor of the nuclear option. Less like Cinderella and more like Groundhog Day.