Richard A. Arenberg, who worked on Senate and House staffs for 34 years, is co-author of “Defending the Filibuster: The Soul of the Senate.” He is an adjunct professor at Brown University, Northeastern University and Suffolk University.
If he chooses to invoke the “constitutional option” — the assertion that the Senate can, on the first day of a session, change its rules by a majority vote — he will be heading down a slippery slope that the current president of the Senate, Vice President Biden, once excoriated as an abuse of power by a majority party.
The argument over the constitutional option is more than 200 years old. The Senate has consistently held that it is a continuing body since at least two-thirds of its members are always in office. That’s why it uses a rule book written in 1789 by the first Senate and does not adopt rules on the first day of a new Congress, as the House of Representatives does. To underscore the point, the Senate adopted in 1965 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.”
Senate Rule XXII requires a two-thirds vote to end a filibuster against a rules change. This means that changing Senate rules must be a bipartisan matter. The danger is that the majority party will attempt to use the “constitutional option” and ignore the Senate’s rules. Republicans threatened this in 2005 when Democrats were filibustering 10 of President George W. Bush’s judicial nominations. Because Democrats vowed to respond by bringing the Senate to a near-halt, the tactic was widely referred to as the “nuclear option.”
The “constitutional option” could be accomplished in January (or, really, any time) if the Senate’s presiding officer decides to ignore the rules and the advice of the parliamentarian — which presiding officers usually rely upon — and declares that debate can be ended by majority vote. Republicans would appeal, but if 51 Democrats hold the line they can table the appeal, which would allow the ruling to stand as the new precedent of the Senate.
No one should be fooled. Once the majority can change the rules by majority vote, the Senate will soon be like the House, where the majority doesn’t consult the minority but simply controls the process. Gone would be the Senate’s historic protection of the minority’s right to speak and amend. In the House, the majority tightly controls which bills will be considered; what amendments, if any, will be in order; how much time is allotted for debate; and when and under what rules votes occur. Often, no amendments are permitted.
Since the Senate’s presiding officer is likely to be the vice president, it is instructive to remember what Biden said about this ploy from the floor of the Senate in 2005:
“This nuclear option is ultimately an example of the arrogance of power. It is a fundamental power grab by the majority party . . . to eliminate one of the procedural mechanisms designed for the express purpose of guaranteeing individual rights and they also, as a consequence, would undermine the protections of the minority point of view. . . .
“[Q]uite frankly it’s the ultimate act of unfairness to alter the unique responsibility of the United States Senate and to do so by breaking the very rules of the United States Senate. . . . But the Senate is not meant to be a place of pure majoritarianism. . . . At its core, . . . the filibuster is not about stopping a nominee or a bill. It’s about compromise and moderation.”
He went on to call the constitutional option “a lie about the rule.”
Reid said at the time, “If there were ever an example of an abuse of power, this is it. The filibuster is the last check we have against the abuse of power in Washington.”
In 2005, crisis was averted by the bipartisan “Gang of 14” senators who forged a compromise. Perhaps it’s time for a new gang. Five of the original 14 will be in the 113th Congress. They would no doubt be joined by others of both parties. A critical mass of senators who revere the institution can arrive at a bipartisan approach, reshaping the filibuster rule while retaining it as a protection for minority rights.
In recent days President Obama and the leaders of the House and Senate have called for bipartisan cooperation. Imposing rules changes by partisan fiat would be just the opposite and would destroy the fabric of the Senate. Now is a good time for a new gang of senators to rise above partisan bickering and negotiate changes based on what’s best for the Senate and our democracy, not just what’s best for the majority.