Stand Up and Change the Rule

Last November, Senate Democrats used a parliamentary ploy we know as the “nuclear option” to circumvent Senate filibuster rules to permit ending the debate on confirmation of presidential nominations (except for the Supreme Court) by a simple majority. This was accomplished by rejecting President pro tempore Patrick Leahy’s (D-Vt.) ruling to the contrary and creating a precedent that the words of Senate Rule XXII — that ending debate requires a vote of “three-fifths of the Senators duly chosen and sworn” — is interpreted to mean a simple majority.

Now the incoming Republican majority may let that inexplicable interpretation continue to stand as Senate precedent. Current senators of both parties would then be complicit in ignoring the history and traditions of the Senate while also disrespecting the intelligence of the American people. They will have chosen short-term expediency over principle.

Allowing this precedent to stand will grease the already slippery slope the Senate is on. If the rules can be circumvented by a simple majority (in theory as few as 26 senators since 51 is a quorum) at any time, there are, in effect, no rules. Retiring Sen. Carl Levin (D-Mich.), during the debate before the vote on the nuclear option, invoked the words of his predecessor from Michigan, Sen. Arthur Vandenberg (R-Mich.), a giant of the Senate, “If the majority can change the rules at will, ‘there are no rules except the transient, unregulated wishes of a majority of whatever quorum is temporarily in control of the Senate.’” Levin continued, “Changing the rules, in violation of the rules, by a simple majority vote is not a one-time action. If a Senate majority demonstrates it can make such a change once, there are no rules that bind a majority, and all future majorities will feel free to exercise the same power, not just on judges and executive appointments but on legislation.”

This is the slippery slope down which the Senate is already sliding.

There’s an easy and honorable solution. Stand up and change the rule. If most Republicans, some have said so publicly, favor eliminating the filibuster on presidential nominations, they can join the Democrats in simply voting to change Rule XXII. Since 45 of the 46 returning Democrats supported the nuclear option when it was accomplished in 2013, the addition of a majority of the new Republican Senate majority would create something upwards of seventy votes.

The rules can be changed by a simple majority, but the same Rule XXII requires a 2/3 supermajority to end debate on a change to the Senate rules. This was the inconvenient fact that Democrats were using the nuclear option to overcome. But, they did it in a way that required, as Republicans charged at the time, “breaking the rules to change the rules.” Now there is presumably a large majority ready to change the rule. Why not keep faith with Senate history and its rules which have stood since 1789 (Rule XXII itself was adopted in 1917) and vote to modify the actual rule? Even if opponents were to filibuster against the rules change, the necessary supermajority is likely attainable. Doing so would provide a stamp of bipartisanship which has been extremely rare in recent Congresses. Leaders Mitch McConnell (R-Ky.) and Harry Reid (D-Nev.) could join hands in bringing the proposed change to the Senate floor.

I want to be clear. I have long argued that the elimination of the right of minorities to filibuster would empower any president of either party with a majority in the Senate to disregard the views of minority senators in selecting nominees for the federal courts. This would allow presidents to make appointments to these lifetime positions on the bench on a much more partisan basis than has been historically possible. Although I believe that changing the rule is far preferable to pretending that it means something other than its plain language states, I do not support changing the rule.

I would support a narrower change in the rules applying to presidential appointments to the executive branch. I have always believed that presidents should be afforded the right to place the individuals they want in their own administration as long as they were well-qualified and had no ethical breaches.

Short of bipartisan agreement to change the rules, the new majority should restore the Senate’s interpretation of Rule XXII to reflect what it actually says.

Richard A. Arenberg

Brown University