The Senate Goes Nuclear: Is the Filibuster Endangered?
Enormous change to the Senate occurred today. By majority vote, the Senate moved to proceed on judicial and executive nominations, with the exception of Supreme Court nominations.
What you need to know:
The parliamentary tactic used in the Senate was not a rules change. It was a change in precedent on the motion to proceed. Floor process is a combination of rules – adopted and reformed by two-thirds of the chamber – and precedents – accumulated through the history of floor procedures, rulings of the chair, and motions sustained or overturned, etc.
It is not uncommon for rules and precedents to compliment and, at times, conflict with one another. Senate Rule XXII states: “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.” (Rule XXII, clause 2). It is more important to notice what is not mentioned in this rule. Rule XXII does not mention nominations, judicial or executive. This is important because it distinguishes the lines between a rule and precedent. Rules make declarative statements. Precedents interpret the boundaries to which those rules apply.
Reid used the lack of specificity in the rule to alter precedents dictating cloture motions. The objection to the chairs ruling (that Reid’s motion was not in order) reinterpreted the precedents regarding motions to proceed on judicial and executive nominees. Because Rule XXII is vague on distinguishing the motion to proceed on bills and nominations, Democrats effectively argued that the rule was open to interpretation (the “arguments” are more often won when you have a majority). In effect, Reid used procedural ambiguity in the rules to reinterpret how cloture is invoked on nominees. Key point, this is a precedent change, not a rules change.
That leads to another extremely important question: can the Senate now change the rules by majority vote? In a strict sense, my guess is no. Changing the interpretation of a rule on a particular subject is far different than redefining the entire rule. In other words, my guess, as of now, is that the Senate cannot disregard the filibuster entirely without two-thirds of the chamber voting for it.
That said this is a very wonky and extremely important question: How much change would be required to trigger the two-thirds vote to change the rules? It does not take logical acrobatics to assume that Democrats or Republicans would reinterpret cloture in the same way if a Supreme Court nominee faced intense opposition. However, does the same logic apply to a motion to proceed on legislation? That is a deeper question. It’s not entirely clear where the trigger lies. You would think changing the entire rule would trigger a two-thirds vote under the rules. However, Senators themselves are responsible for upholding the rules of the chamber. Rulings of the chair are subject to appeal by the chamber. And as long as the majority rules, we cannot rule out an instance in which a newly reinterpreted precedent trumps a standing rule.
It appears the Senate’s procedural guardians are a dying breed. In a polarized Senate, the chamber may be closer to majority rule than many believe.
Josh Huder is a Senior Fellow at the Government Affairs Institute.
Follow him on Twitter at @JoshHuder