a Senate minority now obstructing up-or-down floor votes on several
judicial nominations... the time has certainly come for the Senate
majority to seriously consider re-exercising the "nuclear option."
been more than a quarter century since a simple majority of the
U.S. Senate has employed a parliamentary procedure ominously known
as the "nuclear option" to effect a change in the bodys
Standing Rules. Back then, in 1975, it was a bare Democratic majority
that mustered the will to force a change in Rule XXII, the "cloture
rule," decreasing the number of votes required to break a filibuster
from two-thirds of the Senate, or 67 votes, to the current level
of three-fifths of the body, or 60 votes.
28 years later, it might be the Republican majority that exercises
its constitutional prerogative to "determine the rules of [Senate]
proceedings" by employing the "nuclear option" to
remove the executive calendar business sent to the Senate
from the White House, such as treaties, executive nominees and judicial
nominees from the purview of Rule XXII, thus ending the ability
of a Senate minority to indefinitely obstruct confirmation votes
on judicial nominees who have secured the necessary majority support.
basic problem is as follows. Standing Rule XXII provides for unlimited
debate in the Senate until a cloture motion for ending debate is
filed and the question is "decided in the affirmative by three-fifths
of the Senators duly chosen and sworn." Thus, proceeding to
a final yea-or-nay floor vote on a piece of legislation, a nomination,
or virtually any other question can be prevented whenever there
are at least 41 Senators unwilling or unavailable to vote in favor
of ending debate.
hurdles for the majority dont end there. Rule XXII also states
that if the "measure or motion" being debated is "to
amend the Senate rules," including the cloture rule, then "the
necessary affirmative vote shall be two-thirds of the Senators present
and voting." In other words, a bare majority wishing to end
debate and proceed to a final up-or-down vote faces a Catch-22 under
Rule XXII because, so long as a 41-member minority wishes to prevent
such a final resolution, the majority can neither end debate and
force a floor vote nor can the majority change the Rule to reduce
the supermajority requirement.
difficulty is only exacerbated by the fact that, under Rule V, the
Senate deigns itself a continuing body and, as a result, does not
offer an opportunity for the majority of each newly composed Senate
to ratify, amend, or repeal the Standing Rules carried over from
previous Congresses. Thus, Rule XXII presents a majoritarian conundrum:
Not only do the anti-majoritarian rules enacted by a simple majority
of a previous Senate bind the current Senate, but a current majority
cannot even change those previously adopted rules without the consent
of a supermajority.
the U.S. Constitution.
has long been a principle of Anglo-American constitutional law that
a previous legislature cannot bind a subsequent legislature. Indeed,
the maxim dates all the way back to Sir William Blackstone, who
cited Cicero in his Commentaries on the Laws of England for
the proposition that "Acts of parliament derogatory from the
power of subsequent parliaments bind not.
Because the legislature,
being in truth the sovereign power, is always of equal, always of
absolute authority: it acknowledges no superior upon earth, which
the prior legislature must have been, if its ordinances could bind
the present parliament."
U.S. Supreme Court, likewise, has held that legislative entrenchment
constitutes an unconstitutional exercise of power in a long line
of cases dating all the way back to the mid-19th Century. Specifically,
the High Court has ruled that "[e]very succeeding Legislature
possesses the same jurisdiction and power
as its predecessors.
The latter must have the same power of repeal and modification which
the former had of enactment, neither more nor less. All occupy,
in this respect, a footing of perfect equality.
result is fraught with evil." Newton v. Commissioners,
100 U.S. 548, 559 (1880). Thus, it is far from surprising that,
according to the Supreme Court, "the will of a particular Congress
does not impose itself upon those that follow in succeeding
years." Reichelderfer v. Quinn, 287 U.S. 315, 318 (1932).
constitutional principle against legislative entrenchment has both
theoretical and practical implications for Standing Rule XXII.
the theoretical level, the cloture rule is presumptively unconstitutional,
as outlined in a Stanford Law Review article authored by
Professors Erwin Chemerinsky and Catherine Fisk, of the University
of Southern California and Loyola Law Schools, respectively. See
Erwin Chemerinsky & Catherine Fisk, The Filibuster, 49
Stan. L. Rev. 181 (1997).
to Professors Chemerinsky and Fisk, "The conclusion that emerges
is clear: laws and rules that restrict changes by future legislatures
are unconstitutional. This view has been followed by the Supreme
Court throughout American history and it is supported by compelling
arguments. As such, Rule XXII is unconstitutional in requiring that
any revision be by a two-thirds margin."
conclusion is bolstered not only by the same long line of Supreme
Court cases, but also by the text of the U.S. Constitution itself,
which explicitly sets forth only seven instances in which supermajority
votes are necessary for the federal legislature to act and states
that the "Vice President of the United States" shall break
ties in the Senate when "they be equally divided."
clear import of these provisions is that Congressional action, in
both the House and Senate, is to be by simple majority, except in
the seven instances specifically listed in the Constitution. After
all, according to the canon of construction expressio unius est
exclusio alterius, or literally "inclusion of one is the
exclusion of all others," the enumeration of one thing in the
Constitution implies the exclusion of another.
the practical front, the constitutional rule against legislative
entrenchment means that it must be possible for the current Senate
to amend, repeal, or ratify Standing Rule XXII by a simple majority
vote of the body. According to Professors Chemerinsky and Fisk,
"The effect of declaring [legislative entrenchment] unconstitutional
is that the current Senate could change Rule XXII by majority vote.
In other words, a majority of this Senate could eliminate the filibuster
if a majority wished to do so."
is the so-called "nuclear option."
way this procedural maneuver would work as it did in 1975
would be that, at the time of a cloture vote to end debate,
the Senate majority would secure a ruling from the chair that Standing
Rule XXII does not apply. The chair, likely the Vice President,
would probably agree and rule in favor of the majority. The issue
would then be brought to a vote, and the minority, probably through
the Minority Leader, would note that the issue is debatable and,
hence, also subject to a filibuster.
parliamentarian, relying on Senate precedent, would agree. The chair
would then recognize a non-debatable motion to table. At this point,
the majority could overrule the anti-majoritarian precedent, uphold
the ruling of the chair, and proceed to a final yea-or-nay vote
on the original question by securing a simple majority vote in favor
of the motion to table.
all that seems complex, it is. But the basic import of such procedural
maneuvering is that a simple majority of the current Senate can
force a change in Rule XXII to reduce the supermajoritarian cloture
requirement, thus making it possible to end debate by simple majority
a Senate minority now obstructing up-or-down floor votes on several
judicial nominations and other nominations languishing for hundreds
of days under the threat of filibusters, all while there is a vacancy
crisis plaguing the federal appellate bench, the time has certainly
come for the Senate majority to seriously consider re-exercising
the "nuclear option."
irony is that the very majoritarian rule suggested by the text of
the Constitution is deemed "nuclear" by those who have
sworn an oath to uphold "the supreme Law of the Land."
October 23, 2003]