Unring the bell

(Editor’s note: This post is a follow up to yesterday’s post and originally appeared in Legislative Procedure on September 5, 2018.)

By James Wallner

Yesterday’s post detailing how senators can bring back the judicial filibuster prompted a lot of responses. The most prominent critique was that the nuclear option cannot be reversed. In short, a bell once rung cannot be un-rung. But the Senate’s past practice illustrates clearly that the nuclear option can be reversed and that the filibuster can be preserved anew for a significant period of time.

Senate reversed the nuclear option in 1975

For example, a bipartisan coalition of senators led by Walter Mondale, D-Minn., and James B. Pearson, R-Kan., introduced a resolution (S. Res. 4) in 1975 that would have reduced the threshold to invoke cloture from two-thirds of the entire Senate to three-fifths of those senators present and voting. Reformers were optimistic that they could finally establish a precedent that a Senate majority change the institution’s Standing Rules in a manner that violated those rules. This is because a large number of pro-reform Democrats prevailed in the 1974 mid-term elections due to the Watergate crisis and the subsequent resignation of President Nixon. In addition, the Senate’s new Presiding Officer, Vice President Nelson Rockefeller, was a strong supporter of efforts to reform the filibuster.

On February 19, Senator Pearson made what was essentially a non-debatable motion to proceed to the consideration of S. Res. 4 in violation of the Senate’s rules. Pearson’s motion consisted of three separate parts. 

1. It specified that the Senate begin consideration of the resolution. 
2. It stipulated that the Senate vote immediately on the motion to proceed and that cloture be invoked if supported by a simple-majority.
3. It required that the Senate vote on whether or not to proceed to S. Res. 4 immediately after cloture was invoked. 

Majority Leader Mike Mansfield, D-Mont., then raised a point of order that Pearson’s motion was out of order. After some debate, the Senate successfully voted on February 20 to table the Mansfield point of order fifty-one to forty-two, even though it was consistent with the Standing Rules. By voting to table the Mansfield point of order, members established a precedent that a Senate majority could change the rules at the beginning of a new Congress. In short, senators went nuclear.

James Allen, D-Ala., immediately retaliated by calling for a division of the three separate parts of Pearson’s motion. Allen then began a filibuster of the first question- that the Senate begin consideration of S. Res. 4. Because this part of the motion did not contain a constitutional question, Allen argued that the precedent just established did not apply. Using Pearson’s own logic against him, Allen asserted that forcing a vote on the first part of the motion did not touch on a constitutional question and instead would violate the Senate’s Standing Rules. While a majority had just supported efforts to establish majority cloture on constitutional questions on the first day of a new Congress, some of those members were unwilling to go even further and establish majority cloture for questions that did not raise constitutional issues. Allen’s maneuver illustrates the ability of members to define the question pending before the Senate in such a way as to make it more difficult for reformers to maintain a majority in support of their efforts. As a consequence, Allen’s maneuver prevented reformers from winning the day. The Senate eventually adjourned and the motion to proceed to S. Res. 4 was defeated.

Senators continued their efforts over the following weeks to force the Senate to begin consideration of the Mondale-Pearson resolution. The Senate considered a similar three-part motion to proceed made by Mondale on February 24. During the subsequent parliamentary maneuvering that ensued, senators grew increasingly frustrated with how Vice President Rockefeller was managing the floor. Harry Byrd Jr., I-Va., stated, “I want to protest the rapidity with which the chair is putting these questions and refusing to recognize some of us who have been seeking recognition.” 

Senators frustration with the Vice President reached a boiling point two days later when Vice President Rockefeller refused on several occasions to recognize Allen. Russell Long, D-La., rebuked the Vice President in response. “The Presiding Officer presides over the Senate…He does not own this body. I have never in my life seen it happen in the Senate that a man can be standing trying to seek recognition and not be recognized by the chair.” Long warned his colleagues, “You have one man cloture right now.” Other senators came to the floor to criticize the Vice President throughout the day. This eventually prompted Rockefeller to apologize to Allen for not recognizing him.

For seven weeks, opponents filibustered efforts to pass majority cloture. Their opposition also delayed consideration of other business. Minority Whip Robert Byrd, D-WV., expressed concern about the impact of these dilatory tactics on the majority’s ability to process other important legislative priorities. From January to mid-March, Byrd wanted to proceed with “other responsibilities, one of which is to get urgent legislation disposed of.” Yet he acknowledged that the Senate’s leadership was worried that members would exercise their ability to obstruct the majority’s agenda. “The leadership does not want this thing to develop in an all-out struggle as to who knows most about the rules and who can utilize the rules to the fullest extent. We can all play that game, and I hope we will not get into that business.”

Mounting frustration with the rules debate and the desire of senators to turn their focus to other legislative business precipitated negotiations between members on both sides of the conflict. A bipartisan compromise agreement was introduced on February 28 by Majority Leader Mansfield, Majority Whip Byrd, Minority Leader Hugh Scott, R-Pa., and Minority Whip Robert Griffin, R-Mich. Among its provisions, the agreement reduced the votes needed to invoke cloture to three-fifths of the entire Senate, instead of the three-fifths of those members actually present and voting as sought by the reformers. In another significant concession to Allen and his allies, the compromise also maintained the higher threshold of two-thirds of those senators present and voting to end debate on measures to change the Standing Rules. Finally, the agreement formally reversed the precedent established by the nuclear option just eight days earlier.

After fifty days of continuous debate on the issue, the Senate voted on March 7 to invoke cloture on the compromise agreement. Reflecting on the historic struggle, Allen emphasized the importance of minority retaliation in preventing a pro-reform majority from ultimately prevailing in the conflict. He observed, “If the idea is prevalent that members of the Senate will lie down, roll over and play dead to this type of action- unauthorized and not countenanced by the rules- then you can certainly look for that effort to be made.”

Senators are not victims of the past

Implicit in the argument that the nuclear option cannot be reversed is the assumption that the Senate’s rules were irrevocably changed in 2013 and 2017. The implication is that senators who do not like the status quo are innocent victims and should be excused for simply adhering to a practice established by a previous majority.

But senators aren’t victims. This is because the nuclear option established a precedent that is in explicit violation of the Senate’s Standing Rules (i.e. Rule XXII). This is problematic for members who profess to wanting to follow the Senate’s rules and claim that they do not support breaking those rules by creating new precedents that violate them (i.e. the nuclear option). It is also problematic for senators who oppose the outcomes made possible by the nuclear option- members like Amy Klobuchar, D-Minn.

The successful utilization of the nuclear option created a new precedent that is inconsistent with the Senate’s Standing Rules. The rules were not amended. Rather, they were simply ignored. The precedent established by the nuclear option in 2013 did not address a parliamentary situation in which the rules were silent. Instead, it specifically circumvented those rules. This point has significant implications. Rather than acquiescing to a new rules regime, the senators break the rules every time they support following the nuclear option precedents instead of the existing process required by Rule XXII for invoking cloture. Specifically, whenever the Presiding Officer determines that cloture was invoked by a simple-majority, the Senate essentially decides whether or not it would like to ignore the Standing Rules based on the preference of a simple-majority. 

In short, there is no one first act of breaking the rules that legitimizes all subsequent departures from the status quo ante. Rather, an explicit violation of the Senate’s Standing Rules occurs every time senators choose to adhere to the precedent established by the nuclear option instead of its Standing Rules.

That majorities go nuclear more frequently today than in the past, and that minorities do not challenge them in doing so, suggests that senators do not believe that the rules should be maintained in their present form.

James Wallner is a senior fellow of the R Street Institute and member of R Street’s Governance Project and Legislative Branch Capacity Working Group teams.