Bench Memos

Law & the Courts

Mistaken Attack on Senator McConnell’s Proposed Cloture Reform, Part 1

In the face of Senate Democrats’ unprecedented obstruction, Senate majority leader Mitch McConnell is ready to invite the Senate to exercise its constitutional rulemaking authority to reduce the hours of post-cloture debate on district-court nominees and executive-branch nominees (other than Cabinet-level officials) from thirty to two. Writing for American Greatness, Rachel Bovard undertakes to make a conservative case against McConnell’s proposal. But I think that her case gets the basics very wrong.

Let’s start with the Senate’s rulemaking authority. According to Bovard, “[c]hanging a Senate rule … requires 67 votes.” What she means by this is that Rule 22.2 of the Standing Rules of the Senate sets forth a cloture threshold of “two-thirds of the Senators present and voting” for “a measure or motion to amend the Senate rules.” In her view, a majority vote to alter Senate precedent to adopt the two-hour rule wouldn’t supersede Rule 22.2. Thus, she claims, any time that senators in the future acted on a nominee pursuant to the two-hour rule, “they would be violating their own rules.”

I think that Bovard’s argument is mistaken in two large ways.

First, under the Constitution (Art. I, section 5, clause 2), the Senate has the power to “determine the Rules of its Proceedings.” That power is necessarily a plenary power that a majority of the Senate—or, more precisely, a majority of senators present and constituting a quorum—may exercise at any time to revise its rules. It is simply impossible, as a formal legal matter, for the Senate to adopt and entrench rules against a change by a later majority.

I won’t offer an extended argument here, but consider this hypothetical: Let’s say that the original Senate had adopted a rule (whether unanimously or by a single-vote margin) that provided that no bill shall be deemed passed by the Senate unless it wins a unanimous vote and that no change to that rule shall be made other than by a unanimous vote. Would that rule have bound the Senate going forward? Absurd. The same is necessarily true for any other effort to entrench a supermajority barrier against changing the Senate’s rules.

In other words, if the two-thirds cloture threshold under Rule 22.2 actually purported to apply to McConnell’s proposed adoption of the two-hour rule, it would be void as unconstitutional.

But (as I think Bovard agrees) Rule 22.2 does not in fact apply to McConnell’s proposed adoption of the two-hour rule for the simple reason that the vehicle that McConnell would be using—a majority vote to establish a precedent that overrides the parliamentarian’s application of the pre-existing rule—is not a measure that requires a cloture vote. In other words, it is not subject to Rule 22.2.

Would McConnell be circumventing Rule 22.2? Absolutely. But that circumvention would be exercising and vindicating the Senate’s constitutional rulemaking authority.

Second, the vehicle that McConnell would be using would, as a substantive matter, change the Senate’s rules. That is true even though the text of the Standing Rules of the Senate would not be formally altered.

Contrary to the impression that Bovard leaves, the Standing Rules are not a comprehensive and authoritative account of the Senate’s “Rules of its Proceedings.” The Senate’s actual “Rules of its Proceedings” necessarily include the Senate’s precedents that contradict and override what is set forth in the Standing Rules. Marty Gold, one of the few real experts in Senate parliamentary practice, has provided me a couple of examples:

Since 1789, Senate rules have said that the Presiding Officer shall recognize the first Senator who addresses him. Since 1937, there has been contradictory precedent that the Presiding Officer shall give preferential recognition to the party leaders and bill managers. The precedent contradicts and prevails over the rule, which has never been amended.

In 1979, Majority Leader Byrd set a precedent that one could couple together a non-debatable motion to proceed to Executive Business with a designation of the specific business to be considered. The Presiding Officer had said that, under Rule 22, the two concepts could not be joined. Byrd successfully appealed. The effect of Byrd’s appeal was to kill filibusters entirely on motions to proceed to nominations and treaties.

And of course (as Marty also points out) in November 2013 then-Senate majority leader Harry Reid mustered his fellow Democrats to adopt the precedent that a simple majority could invoke cloture on lower-court and executive-branch nominations, and McConnell extended the precedent to Supreme Court nominations in 2017.

There are countless other instances in which the Standing Rules don’t govern. For example, sometimes the Senate exercises its majority rulemaking authority in the form of legislation that overrides the Standing Rules. That’s how, for example, reconciliation bills aren’t subject to the supermajority cloture threshold under Rule 22.

Bottom line: Adopting McConnell’s proposal by majority vote would change the Senate’s “Rules of its Proceedings” within the meaning of that constitutional provision.

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