Brennan Center for Justice: A Short History on the Constitutional Option

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(Crossposted at the Brennan Center for Justice.)

On Monday, Senator Mitch McConnell warned that changing the Senate rules by a majority vote, a procedure known as the “constitutional option,” would cause “irreparable harm” by “breaking the rules to change the rules.”

This constant refrain is simply untrue. The Senate’s authority to change its rules by a majority vote stems directly from the Constitution, which authorizes the chamber to “determine the Rules for its Proceedings.” And unlike other legislative actions, such as expelling members or ratifying treaties, the Constitution does not require a supermajority to approve rules changes.

More to the point, the determination of majorities to hold a vote on rules change lies at the root of past successful reform efforts since the creation of the modern filibuster in 1917. Senators who support rules reform this year must likewise embrace this authority, or risk losing the opportunity for change.

In 1959, after filibustering minorities defeated a series of civil rights legislation, senators sought to loosen the cloture rule by requiring two-thirds of senators present and voting — rather than the entire membership — to end debate. At the time, Senate procedure did not explicitly permit cloture to end debate over rules changes, so opponents argued that they could filibuster changes endlessly. But once Vice President Richard Nixon issued an advisory opinion saying that rules changes could be enacted by a simple majority, the Senate adopted the modified cloture rule by a 72-22 margin.

In 1975, when reformers sought to further reduce the cloture threshold, opponents once again argued that a simple majority could not change the rules. But Vice President Nelson Rockefeller gave favorable rulings that allowed a majority to proceed with the constitutional option. The majority’s decision to do so paved the way for reform. After invoking cloture by a majority vote, and tabling the minority’s effort to challenge that vote by a “point of order,” Senator Robert Byrd (D-WV) urged opponents to come into the fold. He warned that further procedural objections would simply reconfirm the majority’s decision to “eventuate ... majority cloture.” In response, the minority came to the table for a new vote and the Senate endorsed the current three-fifths cloture threshold by a two-thirds majority.

Thus, while past rules reforms ultimately garnered supermajority support, Senate precedent confirms the constitutional and procedural legitimacy of rules change by a majority vote. It also reinforces the fact that reform will only come when the Senate acts on that authority.

 
By Jonathan Backer

(Jonathan Backer is a Research Associate in the Democracy Program at the Brennan Center for Justice.)