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Bench Memos

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Re: Revising the Senate Filibuster Rules



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Andy asks whether the Post is correct in suggesting that filibuster reform depends on a determination that the existing filibuster rule is unconstitutional. The Post is clearly not correct.

From what I can tell, there are three or four people who fully understand the intricacies of changing the Senate rules, and I’m certainly not one of them. But Marty Gold is. Based on a discussion I had with him, here’s my understanding:

1. The Senate has plenary power under the Constitution to change its rules at any time. As a constitutional matter, that power can be exercised by a majority of Senators present and constituting a quorum. One traditional means of modifying the Standing Rules of the Senate is for the majority to override the presiding officer’s application of the existing rules. Such override doesn’t mean that the presiding officer was wrong. It means, rather, that the Senate is exercising its plenary power to change the existing rules. In parliamentarian language, the Senate establishes a “precedent” that departs from the Standing Rules. That “precedent” governs Senate proceedings on a going-forward basis.

2. It is crystal-clear that reforming the filibuster does not depend on a determination that the existing filibuster rule is unconstitutional. The Senate has revised its filibuster rule numerous times.

3. As I understand it, the particular procedure that would unfold would involve a determination by the vice president, as president of the Senate, or by the president pro tem or other presiding officer whether the existing filibuster rule applies to judicial nominations. If the initial determination is that the rule does apply, a majority of senators could then vote to override this determination and establish a precedent that the Standing Rule does not apply to judicial nominations. (In the event of a tie, the VP would break the tie, so the votes of 50 Senators are needed.) If the initial determination is that the rule does not apply, a majority of senators would be needed to override this determination and retain the filibuster. Again, this parliamentarian jargon should not obscure that what would really happen is a simple exercise of the Senate’s constitutional authority to revise its rules. So, as I understand it, there would be nothing improper in the vice president’s determining as an initial matter that the existing filibuster rule does not apply to judicial nominations (even though the Standing Rule plainly does). Such a determination would merely be part of the mechanism for changing the rule.

(I have not run the above written explanation by Marty Gold, and any error in it is mine alone.)

There’s a minor side issue as to whether the Senate can formally revise its Standing Rules at any time (as opposed to establishing precedents that effectively depart from the Standing Rules). My own understanding of the Senate’s constitutional power leads me to the conclusion that the Senate can do so, but I’ve heard others express a contrary view (the basis of which I’m unclear on). In practice, nothing turns on this.



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