For the first time in 35 years, a new Congress will open with an attempt by the Senate majority to muscle through changes in Senate rules. The rules may be amended at any time by majority vote; but the rules themselves also provide that debate on a rules change can be terminated only by a two-thirds vote for cloture. Cloture for everything else — all legislation, nominations, and even treaties — needs only 60 votes. The unique cloture provision, which is deeply rooted in Senate history, is a special and very important requirement. It protects the minority — whichever party that may be at the time — from the imposition of rules changes by majority-party fiat.
Senators like Tom Udall, who are eager to muzzle the minority, insist that they may break Senate rules to make Senate rules. They contend that they may disregard the two-thirds cloture mandate and end debate by majority cloture. In a Senate Rules Committee hearing on Sept. 29, 2010, Senator Udall explicitly said, “a simple majority of the Senate can adopt or amend its rules at the beginning of a new Congress because it is not bound by the rules of the previous Congress.” This ignores the plain language of Senate Rule V, which states, “The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.”
The language these senators find inconvenient was adopted in 1959 on the motion of Majority Leader Lyndon Johnson, who declared, “This preserves, indisputably, the character of the Senate as the one continuing body in our policy-making process.”
The extraordinary methods proposed to override the rules have been attempted in the past — and have always been rejected by the Senate. The Senate rules have never been changed other than through the regular order.
In 1953, Democratic senator Clinton Anderson of New Mexico initiated an effort to adopt new rules at the start of the 80th Congress. He imagined that a Senate sitting in a new Congress could disregard its old rules and adopt fresh procedures at its whim. Majority Leader Robert Taft opposed Anderson on the basis of the fact that the Senate is a continuing body. The Senate tabled Anderson’s proposal.
Initiatives mimicking Anderson’s became a near-biennial rite of passage for the next two decades. These initiatives began in the civil-rights era but outlasted it. In 1959 and 1975, Senate rules were in fact amended to reduce the cloture threshold. But the changes were made through the regular order, and Majority Leaders Taft, Johnson, and Mike Mansfield successfully opposed efforts to use extraordinary means to achieve such ends.
As Senator Mansfield characterized Sen. Walter Mondale’s 1975 rules-change effort, “What the motion before us seeks to do is to destroy — let me repeat — is to destroy the very uniqueness of this body; to relegate it to the status of any other legislative body, and to diminish the Senate as an institution of this government.” Mansfield continued, “The present motion to invoke cloture by a simple majority vote, if it succeeds, would alter the concept of the Senate so drastically that I cannot under any circumstances find any justification for it.”
If Majority Leader Harry Reid endorses the use of extraordinary procedures to circumvent the two-thirds cloture requirement on rules changes, it will be the first time a majority leader has ever taken that position. Again, Senators Taft, Johnson, and Mansfield did just the opposite when they led, actively discrediting such tactics.
Senators from both parties have offered ideas for rules amendments. Some may be worthwhile. But does the two-thirds cloture threshold present some insuperable barrier to change? Senator Reid knows it does not. In 2007, when he was already majority leader, the Standing Rules of the Senate were amended regarding non-germane provisions in conference reports and requiring disclosure of earmarks. Two-thirds cloture was no barrier, because the rules changes were negotiated with the minority and had bipartisan support.
Rules changes have occurred under both Democratic and Republican majorities, but always by consensus across party lines. Amending rules on a purely partisan basis would destabilize the Senate and make it resemble the House of Representatives, which changes course on the basis of transient majorities. The Senate’s crucial role as a check and balance within the legislative branch would be damaged.
We marvel at the argument that the Senate is broken and extraordinary steps are needed to fix it. After all, Senator Reid recently pronounced the outgoing Congress “the most productive Congress in the history of the country.” President Obama and Speaker Pelosi have similarly characterized it.
In January 2010, after the Democrats rammed the health-care legislation through with a 60-vote majority, the voters of Massachusetts ended that filibuster-proof capability by electing Scott Brown. In November, voters again rejected the Democrats’ agenda in both the House and the Senate. The current effort to change the filibuster rules reeks of election nullification and should be rejected. If the Democrats lose their Senate majority in 2012, they will be thankful that precedent and common sense prevailed in deciding how Senate rules are amended.— Norm Coleman is a former United State senator from Minnesota. He currently serves as CEO of the American Action Network and the American Action Forum. Martin Gold is an attorney at Covington and Burling and was formerly senior counsel for several Republican senators.
EDITOR’S NOTE: This article has been amended since its initial posting.