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With 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."

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The ‘Nuclear Option’

It’s 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 body’s 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.

Now, 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.

The 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.

The hurdles for the majority don’t 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.

This 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.

Enter the U.S. Constitution.

It 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."

The 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. … A different 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).

This constitutional principle against legislative entrenchment has both theoretical and practical implications for Standing Rule XXII.

On 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).

According 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."

Their 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."

The 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.

On 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."

This is the so-called "nuclear option."

The 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.

The 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.

If 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 vote.

With 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."

The 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."

[Posted October 23, 2003]