Category: Filibuster

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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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The Filibuster, the Nuclear Option and the Rule of Law

Erick Erickson argues here that Senate Republicans would be making a “foolish mistake” if they vote to scrap the filibuster “in its entirety.” He makes a distinction among three different filibusters: (1) the filibuster for executive appointments excluding Supreme Court justices; (2) the filibuster for Supreme Court justices; and (3) the filibuster for legislation. Erickson accepts, without necessarily approving, that the two nomination filibusters have been or will be eliminated through use of the so-called “nuclear option,” but he contends that the legislative filibuster should be preserved as an essential tool to fight for limited government.

We will not address here the policy question of whether the preservation of the filibuster, in whole or in part, is a good idea. Instead, I want to discuss the filibuster’s current status under the law of the Senate and the implications of the nuclear option for the Senate and the rule of law.

Senate Rule XXII provides in part:

Notwithstanding the provisions of rule II or rule IV or any other rule of the Senate, at any time a motion signed by sixteen Senators, to bring to a close the debate upon any measure, motion, other matter pending before the Senate, or the unfinished business, is presented to the Senate, the Presiding Officer, or clerk at the direction of the Presiding Officer, shall at once state the motion to the Senate, and one hour after the Senate meets on the following calendar day but one, he shall lay the motion before the Senate and direct that the clerk call the roll, and upon the ascertainment that a quorum is present, the Presiding Officer shall, without debate, submit to the Senate by a yea-and-nay vote the question:

“Is it the sense of the Senate that the debate shall be brought to a close?” 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.

Note that this rule does not provide for three different filibusters. It applies to ending debate on “any measure, motion, other matter pending before the Senate, or the unfinished business,” and it makes no distinction between matters related to nominations and those related to legislation, much less among different kinds of nominations. The only distinction it makes is between a measure or motion to amend the Senate rules and all other matters, with the former requiring a larger supermajority (two-thirds of senators present and voting) to bring debate to a close.

The idea of three filibusters stems from the Senate’s November 21, 2013 exercise of the “nuclear option.” In that action the Senate purported to eliminate the filibuster with respect to all nominations save those to the Supreme Court. According a February 15, 2016 Washington Post opinion piece by Senator Harry Reid:

In response to unprecedented Republican obstruction, Democrats changed the Senate rules in 2013 to allow qualified nominees to be confirmed by a simple majority vote, instead of 60 votes. This change alleviated judicial emergencies across the country by allowing a flood of qualified nominees to be confirmed. (We stopped short of changing the threshold for Supreme Court nominees—maybe that was a mistake).

(emphasis added).

Similarly, in October 2016, Reid was quoted as saying: “I really do believe that I have set the Senate so when I leave, we’re going to be able to get judges done with a majority. It takes only a simple majority anymore. And, it’s clear to me that if the Republicans try to filibuster another circuit court judge, but especially a Supreme Court justice, I’ve told ’em how and I’ve done it, not just talking about it. I did it in changing the rules of the Senate. It’ll have to be done again.” (emphasis added).

Continue reading “The Filibuster, the Nuclear Option and the Rule of Law”

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Cannon on Nuking Obamacare

Michael Cannon has made a suggestion, resembling my last post in some respects, that the new Republican majority in the Senate use the nuclear option for purposes of repealing the Affordable Care Act, aka Obamacare. However, for some reason Cannon recommends that the Senate proceed by way of reconciliation, a cumbersome process that is unnecessary if the nuclear option is going to be invoked.

It is true that the nuclear option could be used in conjunction with reconciliation (by, for example, exempting an Obamacare repeal provision from all budget-reconciliation points of order), but it is equally true that it could be used to overcome filibusters of a straight Obamacare repeal bill outside the reconciliation process. For that matter, the Senate could “nuke” all filibusters against measures offered by left-handed senators from states that begin with the letter “M.” That is the joy of making arbitrary exceptions to regular order.

It is also curious that Cannon recommends the Senate formally change the Senate rules in order to repeal Obamacare. This is not how the nuclear option was used last year. The Senate did not change its rules to exempt non-Supreme Court nominations from the filibuster. It simply ruled, for unexplained reasons, that such nominations were not subject to filibuster. What would be the point of formally changing the rules through a procedure premised on the notion that the rules are meaningless?

I suspect we are going to hear many arguments about Senate procedure in the upcoming year. These arguments will be marked by confusion unless they understand the nature of what the Senate did when it invoked the nuclear option. We not in a Cinderella Senate but an Alice in Wonderland Senate.

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The Filibuster in a Post-Nuclear Senate

Richard Arenberg, an expert on Senate procedure, wrote an interesting article on Monday asking “Would a new Senate majority abuse the budget reconciliation process?” This question matters if one assumes that the minority still has the power to filibuster in the Senate. But does it?

The Senate “nuclear option” ruling a year ago did not, of course, purport to eliminate the filibuster entirely. The words of that ruling apply only to non-Supreme Court nominations. But these words are meaningless. The only principle that can be derived from the ruling is that the Senate majority is not obliged to comply with Senate Rule XXII (or, presumably, with any other Senate rule) if it chooses not to do so.

The Republicans, it may be noted, have committed publicly to maintaining the filibuster and perhaps even reversing the exercise of the nuclear option. But even if the Republicans want to do so, they cannot restore the status quo ante (at least not by themselves).

Of course, the new Senate majority could refrain from bringing measures to a final vote unless there are 60 votes in favor of doing so. It could do this even if there were no Senate rule regarding the subject. But such restraint would not undo the nuclear option ruling. It would merely establish, as a factual matter, that the current majority does not choose to disregard Senate Rule XXII.

The Senate could formally overturn the nuclear option ruling. Doing so, however, would not have any more precedential value than did similar actions in the past. There is no reason to believe that a formal overruling of the nuclear option would prevent a future Senate from invoking the nuclear option again to prevent filibusters for nominations or any other matters. It would in effect entrench the filibuster only for as long as the Republicans hold the majority, an outcome that the Republicans would presumably find unattractive.

The Senate Republicans may also find that they have a problem with their constituents. If the Democrats filibuster a measure that is important to the Republican base, it will be difficult to explain why the Republican majority is bound to adhere to rules that their opponents do not recognize.

Perhaps there is a way for the Senate to entrench Rule XXII in a way that makes it once again genuinely binding on the body. But this would require the agreement of both parties. Perhaps a formal repudiation of the nuclear option accompanied by enactment of a new process for changing the rules, such as I suggested here, would do the trick. Short of this, Senate Rule XXII should now be considered more of a guideline than a rule.

 

 

 

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The D.C. Circuit on the Nuclear Option

One additional tidbit from the D.C. Circuit’s decision in Common Cause v. Biden is worth noting. In footnote 5, the court discusses the Senate’s exercise of the “nuclear option” last fall:

That opportunity to appeal [from the ruling of the presiding officer] constituted the so-called “nuclear option” the Senate invoked to modify the cloture rule as applied to executive branch and lower federal court nominees. On November 21, 2013, the Senate considered, and defeated, a cloture motion on a nomination to a judgeship on this court. Senator Reid, the majority leader, then raised a point of order to the Chair, positing that a cloture vote for such nominations required only a majority. The Chair rejected the point of order under Rule XXII. Senator Reid then appealed the ruling to the full Senate, and, by a 52-48 vote, the Chair’s ruling was overturned. Thus was set new Senate precedent interpreting Rule XXII in the context of executive and lower federal court nominations.

(citations omitted). This discussion is no doubt dicta, but it provides at least some explanation of what the Senate did, which is more than it appears we will be getting from the Senate itself. The explanation is somewhat self-contradictory, in it describes the Senate as having both “modif[ied]” Rule XXII and issued a new precedent “interpreting” the rule. Literally, of course, the Senate did not modify Rule XXII, which reads today exactly as it did prior to November 21. We therefore can assume that the D.C. Circuit meant that the Senate “modified” the rule by “interpreting” it to mean something other than what it had “interpreted” it to mean before.

The practice of abruptly changing the interpretation of a rule without explanation ought to be troubling enough. But in the case of Rule XXII, the imagination staggers as to what explanation could be given. Did the Senate “interpret” the phrase “three-fifths of the Senators duly chosen and sworn” in Rule XXII to mean a bare majority? Or did it “interpret” Rule XXII to be simply inapplicable to cloture motions for executive and lower court judicial nominations, although there is nothing in the text of the rule or any other source of legal meaning (such as legislative history) to support such an interpretation?

The only possible coherent explanation for the Senate’s action, other than lawlessness, would be that the Senate viewed Rule XXII as unconstitutional. But while the Senate conceivably could have viewed Rule XXII as unconstitutional in its entirety, or as to nominations alone, there is no plausible way it could have viewed the rule as unconstitutional as to executive and lower court nominations, but not as to Supreme Court nominations. Perhaps it was for this reason the D.C. Circuit did not suggest that the Senate’s action stemmed from a constitutional judgment.

 

 

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Common Cause’s Impossible Dream: Act II

Not surprisingly, the D.C. Circuit has affirmed the district court’s dismissal of Common Cause’s challenge to the constitutionality of the filibuster. Like the court below, the appellate panel found the plaintiffs lacked standing to sue, but its rationale was somewhat different. The district court’s decision was rooted in the absence of a cognizable injury and the court’s lack of power to remedy the harm allegedly caused by the filibuster rules (namely Congress’s failure to enact two pieces of legislation, the Dream Act and the Disclose Act, that would have benefitted the plaintiffs). It also concluded that the suit was barred by the political question doctrine.

The D.C. Circuit, on the other hand, “focus[ed] on whom Common Cause chose to sue—or, more to the point, not to sue.” The Senate, of course, is responsible for enacting and enforcing its own rules, yet Common Cause did not name the Senate or any senator as a defendant. Instead, it sued the Vice President and three Senate officers.

This was a transparent ploy to circumvent the Speech or Debate Clause, which would certainly have required the dismissal of any suit against the Senate or particular senators. As the court points out, what defeated the Dream and Disclose Acts was “legislative action, activity typically considered at the heart of the Speech or Debate Clause.” There was, however, no need to decide whether the Clause barred suit against the Vice President and Senate officers because these were simply the wrong defendants.

The court was unimpressed by Common Cause’s reliance on Powell v. McCormack, 395 U.S. 486 (1969), in which a member of the House was able to challenge his expulsion by suing the Sergeant at Arms to recover back salary. As we have discussed before, the Sergeant at Arms was responsible for paying Powell’s salary and thus could be said to have caused this very specific injury to the plaintiff. But nothing in the Supreme Court’s decision suggests that congressional officers can be used generally as stand-ins whenever someone wants to challenge an allegedly illegal House or Senate action.

In contrast to the situation in Powell, the court notes “Common Cause does not identify anything the defendants did (or refrained from doing) to cause its alleged injuries.” The only remotely plausible link is the Vice President’s role as presiding officer of the Senate, but any ruling by the presiding officer is subject to appeal to the full chamber. Thus, even if the Vice President had been presiding at the time of the votes Common Cause complains of (which he was not), and even if he had ruled on a relevant issue (which he did not), it would still be the Senate, not the Vice President, that caused the alleged injury.

Accordingly, Common Cause’s failure to sue the Senate or any senator leaves it “Hoist with [its] own petar,” as the court puts it, quoting Hamlet (act 3, scene 4, if you were wondering).

To appeal or not to appeal, that is the question. Perhaps Common Cause’s quixotic quest (to mix metaphors) will yet have a third act. Or perhaps it will decide it is nobler in the mind to suffer the slings and arrows of outrageous fortune. Only time will tell.

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The Debt Limit and the Paradox of the Post-Nuclear Senate

The Senate is set to vote on cloture for the debt ceiling bill that passed the House on Monday. If the cloture vote should fail (i.e., if there are not 60 votes to end debate and advance the measure to final passage), we will have an interesting illustration of the paradox of the post-nuclear Senate. As Professor Seth Barrett Tillman has observed, since the Senate Majority Leader has already asserted the power to change/suspend/reinterpret(depending on how you want to look at it) the Senate rules by simple majority vote,  it is not clear in what sense the minority still has the power to prevent the bill from passing. It has the power only so long as the majority allows it to do so, which seems a lot like not having the power at all.

For ordinary legislation, one might argue that the filibuster rule, while not truly binding on the majority (or not recognized by the majority as binding, anyway), reflects a Senate norm that significant legislation should not be passed with narrow majorities. But the President and his congressional allies have advanced a theory that the debt limit is different than ordinary legislative matters. Raising the debt ceiling, it is claimed, is a technical necessity to prevent default on existing debt and potentially catastrophic economic consequences. For that reason the President has declared the debt limit exempt from the normal give and take of the legislative process and has decreed that he will only accept a “clean” debt limit bill.

The House leadership bowed to the President’s unwillingness to negotiate and allowed a clean debt limit measure to come before the House. The vast majority of Republicans voted against the bill, but there were enough Republicans voting for it, including the Speaker and House Majority Leader, to allow the bill to pass.

The argument will be made that Senate Republicans, even though they may prefer to vote against the debt limit bill for symbolic/political/ideological reasons (as Senator Obama did a number of years ago), have an obligation to produce enough votes to allow cloture to be invoked. But this argument loses much of its force in a post-nuclear Senate. If the Senate majority believes that the debt limit is so important, how could it justify not invoking the nuclear option to move the bill to final passage? Clearly there is no legal argument against doing so other than those which would have been equally applicable to the majority’s previous invocation of the nuclear option.

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The Filibuster and Obamacare: My Comments on Seth Tillman’s Comments

Seth Barrett Tillman sends in the following thoughts (also posted on The Volokh Consipiracy)  on Obamacare and the Senate’s use of the “nuclear option” to limit the filibuster:

The Nuclear Option and Political Responsibility for Obamacare

 The Senate’s use of the nuclear option pins any defects in the Affordable Care Act (“ACA”) on the Democrats. Until the nuclear option was used, Democrats said that they had to pass an arguably defective bill because they could not get around a minority Republican-led filibuster in the Senate. In other words, although the Senate was able to invoke cloture and pass the ACA when it had Senator Ted Kennedy’s vote, once he died and was replaced by Senator Scott Brown, the Democratic majority in the Senate was unable to pass an alternative bill or substantively amend the ACA.

 But the use of the nuclear option undercuts that narrative. We now know that the Democratic majority always had the ability to change the rules and to end debate on any amendment or amendments to the ACA. The Senate Democratic majority always had the power to terminate debate—it is just that the Senate Democratic majority refused to exercise that power.

 If Obamacare is defective, it is not because the Republicans filibustered or threatened to filibuster any amendments, but because the Senate Democratic majority refused to terminate debate using a power which was always within their reach. It follows that political responsibility for any virtues or defects in the ACA rests entirely with the Democrats who passed it.

I don’t have any comment on the political aspect of this argument, but Tillman raises an interesting legal question. There is no doubt that the Senate majority “had the power” to use the nuclear option in 2010 if by this one means nothing more than it could have acted, as a factual matter, to override any filibuster. This calls to mind the “debate” President Obama had with a heckler the other day, in which the heckler yelled that Obama had the power to stop all deportations by executive order, and Obama replied “Actually I don’t.”

The heckler meant that Obama had the power, as a factual matter, to sign an order halting all deportations, which is certainly true. It is also (virtually) certain that such an order would have the effect, at least in the short term, of stopping deportations and quite likely true that it would prevent any further deportations for the remainder of Obama’s term.

What Obama meant is that although he has the factual power to take this step, he lacks the legal authority to do so. More precisely, Obama believes, or says he believes, that he lacks the legal authority to stop all deportations. On the other hand, Obama believes, or says he believes, that he has the authority to halt certain categories of deportations, and one can see how the heckler might not appreciate the difference.

Which brings us back to the Senate. One might infer from its action last week that a majority of the Senate believes it has the lawful authority to override a filibuster by a simple majority vote, although I cannot identify any coherent legal theory that would support the precise action it took (overriding the filibuster as to non-Supreme Court nominations only). There is a coherent legal theory, advanced by Republicans in 2005, to the effect that the filibuster is unconstitutional as to nominations only (not as to legislation), but it does not appear that the Senate is relying on that theory to support its action.

Leaving that aside, one can say with confidence that if the Senate acted lawfully last week, it could have lawfully overridden the filibuster against the Affordable Care Act in 2010. But it remains possible that a majority of the Senate did not believe in 2010 that it had this authority, and that a majority of the Senate does believe that (due to changes in seats or changes in attitude) today.

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The Senate’s “Neutron Option”?

Roll Call reports this morning:

 The Senate voted, 52-48, to effectively change the rules by rejecting the opinion of the presiding officer that a supermajority is required to limit debate, or invoke cloture, on executive branch nominees and those for seats on federal courts short of the Supreme Court.

At least three Democrats — Carl Levin of Michigan, Joe Manchin III of West Virginia, and Mark Pryor of Arkansas — voted to keep the rules unchanged.

The move came after Majority Leader Harry Reid, D-Nev., raised a point of order that only a majority of senators were required to break filibusters of such nominees. Presiding over the Senate as president pro tem, Judiciary Chairman Patrick J. Leahy of Vermont issued a ruling in line with past precedent, saying that 60 votes were required. Leahy personally supported making the change.

Voting against Leahy’s ruling has the effect of changing the rules to require only a simple majority for most nominations.

There are two interesting aspects of this action. First, Senator Leahy apparently voted to reverse his own ruling, which is puzzling to say the least. Either his initial ruling was correct, or it was not. One would have to infer that he believes his ruling was correct under the existing rules of the Senate, but that the Senate could choose to change the rules by reversing it. But I am not aware of any legal theory that would justify that approach.

Second, the new rule evidently is intended to apply solely to executive branch nominations and to non-Supreme Court judicial nominations. So the filibuster apparently survives only as to one particular type of nomination. Call it the “neutron option.” (If you are too young to get this reference, google it).

Again, however, I am not aware of any legal or constitutional theory that would justify distinguishing between Supreme Court and other nominations. By this I don’t mean I am unaware of any good legal theory. As we have discussed before, there are a number of legal arguments that have been invoked to support the nuclear option, including some that I find quite implausible. However, I am not aware of any argument, plausible or implausible, that supports what the Senate apparently did today.