The Senate's Catch XXII and the Constitutional Option

The Senate can do away with its cloture requirement by a mere majority vote, writes Yale Law Journal articles editor Aaron Zelinsky today on the Huffington Post.  Zelinsky argues that Senate Majority Leader Harry Reid has unnecessarily assumed that this Senate rules change would require 67 votes (which he doesn't have) and thereby weakened his hand in negotiating with the minority.

The cloture rule, requiring 60 votes to end debate, and the rules-change rule are both in Senate Rule XXII:

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 . . . shall . . . 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 votes 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.

In short, 67 votes are required to close debate on a measure to amend the Senate rules (including the cloture rule itself).  (The late Senator Kennedy aptly called this double-bind to the cloture rule a "Catch XXII.")

But Zelinsky points out that nothing in the Constitution requires this super-majority to change the Senate rules.  He argues that the Constitution specifies when the Senate must vote by more than a simple majority (as in trying impeachments, e.g.), that the Senate rules themselves are not subject by the Constitution to any super-majority, and that therefore changes to the Senate rules must default to the simple majority rule.  See U.S. v. Ballin ("the general rule of all parliamentary bodies is that, when a quorum is present, the act of a majority of the quorum is the act of the body.  This has been the rule for all time, except so far as in any given case the terms of the organic act under which the body is assembled have prescribed specific limitations . . . No such limitation is found in the Federal Constitution, and therefore the general law of such bodies obtains.").  Zelinsky concludes that Senator Tom Harkin's bill, Senate Resolution 416, to incrementally decrease the number of votes requires for cloture on a measure could pass now by a simple majority.

Others, including Senator Tom Udall, the Congressional Research Service, and Riddick's Senate Procedure, take a different position--that cloture on a fillibuster of a rules change requires 67 votes under Rule XXII, notwithstanding the constitutional default of a simple majority.  In other words, while the Constitution demands only a simple majority to establish rules, the Constitution also doesn't prohibit the rules themselves setting a more rigorous standard.  This is precisely what Rule XXII does, and it binds the Senate.

But these same sources also suggest that a simple majority can change the cloture rule at the beginning of a new Congress--the so-called "constitutional option."  Here's how it works.  Article I, Section 5 of the Constitution allows each House to determine its own rules (by a simple majority).  (Senate Rule V, which says that the Senate rules--including Rule XXII--"shall continue from one Congress to the next Congress unless they are changed as provided in these rules" (and thus taking us back to where we started) itself violates Article I, Section 5 in that it binds the new Senate to old rules and prevents the new Senate from determining its own rules.)  Thus at the beginning of each Congress--before the Senate has had a chance to (re)enact its rules--generally parliamentary law, including the simple majority rule, applies.  Under general parliamentary law, the new Senate can enact its own new rules by a simple majority.

This is exactly what Senator Udall is attempting in his Senate Resolution 396, now before the Senate Committee on Rules and Administration.

(Opponents of this tactic argue that only one-third of the Senate turns over at a time, and a quorum is always in existence.  Therefore the Senate doesn't need to reconstitute itself with each new Congress, and its rules, including Rule XXII, simply carry over.)

Martin Gold and Dimple Gupta spin out the constitutional option along with other possibilities in their Harvard Journal of Law & Public Policy piece, The Constitutional Option to Change Senate Rules and Procedures: A Majoritarian Means to Overcome the Fillibuster.

SDS