December 12, 2012
Senate Minority Leader Mitch McConnell
Senate Minority Leader Mitch McConnell (Andrew Harrer/Bloomberg)

Are Democrats doing something underhanded by planning to change the Senate rules surrounding the filibuster early in the next session of Congress? Not at all, say several leading law professors in a letter to the Senate today. Far from Sen. Mitch McConnell’s complaint that Democrats are “breaking the rules to change the rules,” the law professors say that majority-imposed reform is perfectly legitimate:

Such a concern confuses the power to change the Senate’s rules during a session, with the unquestioned constitutional power of each incoming Senate to fix its own rules unencumbered by the decisions of past Senates. The standing two-thirds requirement for altering the Senate’s rules is a sensible effort at preventing changes to the rules in the midst of a game. It cannot, however, prevent the Senate, at the beginning of a new game, from adopting rules deemed necessary to permit the just, efficient and orderly operation of the 113th Senate. 

The bottom line is that Article I, Section 5 of the Constitution insists that each House of Congress shall “determine the Rules of its Proceedings.” It’s up to each chamber itself how to go about doing that — and that means that previous Senates cannot bind the incoming Senate. 

The academics also note that in fact there are plenty of examples of Senates which have changed the rules right at the beginning, so it’s hard to argue that reformers are even breaking Senate norms. Indeed, their argument is weaker than it needs to be; in my view, majority-imposed reform is an option throughout the Senate’s term, not just on the first day. There’s a good argument that changing rules in mid-Congress is at least usually a bad idea, but that doesn’t mean it’s impossible to do so under the current rules.

At any rate, the real Senate “reform” came at the beginning of the 111th Senate in 2009, when Republicans suddenly broke precedent by demanding that every single measure the Senate considered needed a 60 vote supermajority — and, before that, in 1993, when Republicans broke precedent and decided that all major measures required 60 votes. So when it comes to breaking norms, Jeff Merkely, Tom Udall, and the rest of the current crop of reformers are nowhere close to Republicans like Mitch McConnell. 

If McConnell really wants to have reform under the supermajority rules, he’ll need to accept that the current situation has produced a dysfunctional Senate and find a compromise he’s willing to live with — one that will preserve minority party rights and individual Senator influence while still allowing the Senate to actually get things done most of the time. Barring that, it will be up to the Democrats to do it themselves. And as these law professors confirm, there’s nothing at all wrong with that — legally or otherwise.