# Amending Senate Rules at the Start of a New Congress, 1953-1975: An Analysis with an Afterword to 2015 > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/crs%3AR44395 ## Record - **Collection:** Congressional research report - **Document type:** CRS Report - **Published:** February 23, 2016 - **Citation:** R44395 ## Text Amending Senate Rules at the Start of a New Congress, 1953-1975: An Analysis with an Afterword to 2015 (name redacted) Senior Specialist in American National Government February 23, 2016 Congressional Research Service 7-.... www.crs.gov R44395 Amending Senate Rules at the Start of a New Congress Summary The filibuster (extended debate) is the Senate’s most well-known procedure. Hollywood even highlighted its use in a famous 1939 movie entitled Mr. Smith Goes to Washington, starring actor Jimmy Stewart in the title role of Senator Jefferson Smith. Lengthy debate has many virtues (informing the public, for example) but the blocking potential of interminable debate has often made the filibuster a target for change by reform-minded Senators. Rule XXII requires 60 votes of Senators duly chosen and sworn to end debate on measures or motions—“except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be twothirds of the Senators present and voting.” Real or threatened filibusters, along with cloture motions, have increased in recent Congresses. One consequence has been unsuccessful efforts by change-oriented Senators to amend Rule XXII without having to overcome the two-thirds supermajority hurdle. The contention of the reformers is that at the start of a new Congress, the Senate can amend its rules by majority vote—as the House does on its first day. They cite the U.S. Constitution (Article I, Section 5) as authority for their claim: “Each House may determine the Rules of its Proceedings,” which implicitly means by majority vote, state the reformers. Opponents reject the so-called “constitutional” option. They point out that the Senate has adopted rules and the Constitution says nothing about the vote required to adopt those rules. Moreover, they contend that the Senate is a “continuing body”—a quorum to conduct business is always present given the staggered terms of Senators—with continuing rules. The bottom line: a Senate majority can always amend the chamber’s rules at any time during the two-year life of a Congress so long as the existing rules are observed, such as Rule XXII. Proponents of change refute that argument. They agree that a majority of the Members can change Senate rules at any time. Their concern is Rule XXII’s two-thirds requirement for invoking cloture on proposals to amend Senate rules, which can prevent a majority from altering Senate rules. From 1953 to 1975, initiatives to reform Rule XXII at the start of a new Congress were biennial rituals. They were instigated by Senators in each party frustrated by the chamber’s inability to enact social and civil rights legislation because of opposition from other Members. The bulk of this report examines each Congress where reform actions occurred on “opening day,” which could extend for days, weeks, or months. Most of the reform attempts failed, but two efforts were successful: in 1959 and 1975. An analysis of the successes and failures of this nearly quartercentury era of opening day reform efforts could inform contemporary efforts to revise Senate rules by examining the controversies, conditions, and circumstances that produced the various outcomes. The report discusses, for example, the roles of various Senate Presidents (the Vice President) and party leaders, as well as the procedural strategies used by opponents and proponents of amending Rule XXII by majority vote at the start of a new Congress. The report also includes an “Afterword” that examines several subsequent and successful efforts to change Rule XXII in 1977, 1979, 1986, and 2013. The 2013 case is noteworthy because it created a new Senate precedent that allows majority cloture on most executive and judicial branch nominees. This precedential approach is sometimes called the “nuclear” option because of the likelihood of strong opposition and contentious parliamentary fallout from Senators opposed to its use on consequential measures or matters. In brief, the nuclear option indirectly “amends” Senate rules by majority vote through the creation of a new precedent that alters the application or interpretation of a chamber’s rule, such as Rule XXII, without changing its formal text. Congressional Research Service Amending Senate Rules at the Start of a New Congress Contents Introduction ..................................................................................................................................... 1 Legislative Context.......................................................................................................................... 4 The Constitutional and Nuclear Options ......................................................................................... 6 Precedents and Senate Rules ..................................................................................................... 7 The Senate’s Rulemaking Authority ......................................................................................... 9 Attempts to Amend the Standing Rules of the Senate on Opening Day: 1953, 1957, and 1959 ............................................................................................................................................. 11 83rd Congress (1953) ................................................................................................................ 11 85th Congress (1957) ............................................................................................................... 13 86th Congress (1959) ............................................................................................................... 14 Cloture Reform Attempts: 1961 To 1975 ...................................................................................... 18 87th Congress (1961) ............................................................................................................... 19 88th Congress (1963) ............................................................................................................... 27 89th Congress (1965) ............................................................................................................... 35 90th Congress (1967) ............................................................................................................... 38 91st Congress (1969)................................................................................................................ 43 92nd Congress (1971) ............................................................................................................... 50 93rd Congress (1973) ............................................................................................................... 55 94th Congress (1975) ............................................................................................................... 56 Changing Senate Rules: Several Considerations ........................................................................... 73 The Presiding Officer .............................................................................................................. 74 The Majority Leader ............................................................................................................... 76 A Determined Majority ........................................................................................................... 77 Procedural Strategy ................................................................................................................. 77 “Opening Day” ........................................................................................................................ 79 Continuing Body Doctrine ...................................................................................................... 79 The Scope of Changes to the Senate Rulebook....................................................................... 79 Afterword ...................................................................................................................................... 80 The 1977 Post-Cloture Filibuster ............................................................................................ 81 1979 Revision.......................................................................................................................... 83 1986 Revision.......................................................................................................................... 84 A January 2013 Development ................................................................................................. 85 Historic Change in November 2013: Filibusters Curbed on Most Presidential Nominees ............................................................................................................................. 87 The 114th Congress (2015-2016) ............................................................................................. 93 Concluding Observations .............................................................................................................. 94 Contacts Author Contact Information .......................................................................................................... 96 Acknowledgments ......................................................................................................................... 96 Congressional Research Service Amending Senate Rules at the Start of a New Congress Introduction At the beginning of the 112th, 113th , and 114th Congresses—in 2011, 2013, and 2015 respectively—a number of reform-minded Senators unsuccessfully urged the Senate to adopt its rules on opening day by majority vote (as the House does on its first day) without having to overcome a supermajority hurdle required under existing procedures. For example, on January 6, 2015, a reform-minded Senator stated, “It has been the tradition at the beginning of many Congresses that a majority of the Senate has asserted its right to adopt or amend the rules. Just as Senators of both parties have done in the past, we do not acquiesce to any provision of Senate rules—adopted by a previous Congress—that would deny the majority that right.”1 The Senator’s comments highlight a two-fold conundrum that suffuses this report: (1) a majority of the Senate can amend the chamber’s rules; (2) however, before that may occur, reform advocates might be required under existing Senate rules—which carry over from one Congress to the next (part of the “continuing body” thesis)—to first muster a supermajority to bring interminable debate to a close on proposals to amend Senate rules. Only then would Senators have the opportunity to vote directly on proposals to alter the chamber’s rules. Contemporary attempts to change Senate rules mirror similar opening day efforts that became biennial rituals nearly every new Congress from 1953 to 1975—the principal focus of this report. A major impetus for the repeated attempts at filibuster reform during this period was the frustration of liberal Senators in winning enactment of civil rights legislation. Prolonged debate and other procedural tactics by southern and other Members often blocked passage of those measures. The revival of the idea that the Senate has the constitutional right on the opening day of a new Congress to change its procedures by majority vote regardless of entrenched rules or traditions merits detailed analysis. Why? Because this topic addresses perhaps the most distinctive procedural characteristic of the Senate: the filibuster (extended debate). An examination of the 1953 to 1975 initiatives to change Senate rules on the first day of a new Congress—unhindered by supermajority voting requirements carried over from the previous Congress—might provide useful context and analysis for today’s advocates and opponents of this approach. Then and now, the procedural/political struggles associated with this idea focus less on rewriting many Senate rules and more on making it somewhat easier to constrain obstructive filibusters. Worth brief mention is that “filibustering,” in its broadest sense, refers to more than prolonged debate. It encompasses a range of acts to delay and frustrate the Senate, such as objecting to a unanimous consent request to end quorum calls, raising numerous points of order, or forcing repetitive roll call votes. Even so, the right of every Senator to engage in extended debate is probably the chamber’s most famous feature. It is so well-known that Hollywood even made a classic movie in 1939 (Mr. Smith Goes to Washington) that highlighted the filibuster’s educative and political value. A solo, around-the-clock filibuster was launched by fictitious Senator Jefferson Smith (played by actor James Stewart). Senator Smith/Stewart collapsed from exhaustion at the movie’s end, but his filibuster mobilized public opinion and Member sentiment against a tawdry land deal. In short, the Senator’s talkathon exposed wrongdoing, aroused public support, and, importantly, persuaded his colleagues of the rightness of his views. Senators value extended debate for many other reasons, such as preventing bills they disagree with from becoming law, dramatizing issues for the public, protecting minority rights against 1 Congressional Record, vol. 161, January 6, 2015, p. S23. Congressional Research Service 1 Amending Senate Rules at the Start of a New Congress majority steamrolling, ensuring thorough analysis of legislation, and checking overzealous Presidents. On the other hand, opponents contend that prolonged debate—its actual or threatened use—thwarts majority rule, promotes gridlock, delays or kills legislation, exacts unwarranted concessions on measures or matters backed by Senate majorities, and, at times, blocks consideration of proposals that enjoy majority support in the country. In the view of Senator Robert C. Byrd, D-WV, one of the most knowledgeable parliamentary experts in Senate history: “The liberties of a free people will always be safe where a forum exists in which open and unlimited debate is allowed.” He added: “The good outweighs the bad, and not all filibusters have been bad, even though they may have been exasperating, contentious, and perceived as iniquitous.”2 Senator Byrd’s views underscore that extended debate is the core procedural feature that distinguishes the Senate from the House of Representatives, where almost every second of debate time is limited by some rule, precedent, or practice. Critics, by contrast, emphasize that filibusters contravene a fundamental principle of democratic governance: majority rule. In Federalist No. 22, Alexander Hamilton wrote: “To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the sense of the greater number to that of the lesser.” Or as Thomas Jefferson said in the parliamentary manual he prepared for the Senate when he served as President of the Senate (1797-1801): “The voice of the majority decides. For the lex majoris partis [law of the greatest part, or majority rule] is the law of all councils, elections, &c. where not otherwise expressly provided.”3 In addition, the Framers did expressly provide in the Constitution a limited number of instances where supermajorities are required, such as a twothirds vote of each chamber to override a presidential veto or two-thirds of the Senators voting to win the Senate’s consent to a treaty. Nothing in either the Constitution or Senate rules defines a filibuster, let alone what constitutes an appropriate length of time for debating a measure or matter.4 From the First Congress, Senators recognized that debates for dilatory purposes would occasionally be used, but “they were not used frequently enough to give the Senate any trace of the notoriety which the filibuster later attached to the Upper Chamber.”5 During much of the 19th century, unrestricted debate aroused rather little senatorial concern, in large measure because the Senate’s smaller size and workload (compared to today) made lengthy debates easier to accommodate. Once the motion for the previous question disappeared from the Senate’s Standing Rules in 1806,6 it was not until 1917 that the Senate 2 Robert C. Byrd, The Senate, 1789-1989, vol. II (Washington, D.C.: U.S. Govt. Print. Off., 1991), pp. 162-163. Thomas J. Wickham, Constitution, Jefferson’s Manual, and Rules of the House of Representatives, H. Doc. 113-181 (Washington, D.C.: U.S. Govt. Print. Off., 2015), p. 268. 4 Senate Rule XIX is titled “Debate” and addresses the right to speak in the chamber. Paragraph 1(a) identifies a key principle that undergirds the ability of Members to engage in prolonged debate: “No Senator shall interrupt another Senator in debate without his consent.” In sum, once a Senator is recognized by the presiding officer, the Senator may speak for as long as he or she wants, which in the case of Senator Strom Thurmond of South Carolina was a recordsetting 24 hours and 18 minutes. He set the record for continuously holding the floor in debate on August 28-29, 1957, on a civil rights measure. 5 Roy Swanstrom, The United States Senate, 1787-1801, S. Doc. 99-19 (Washington, D.C.: U.S. Govt. Print. Off., 1985), p. 210. 6 The previous question is a debate-ending motion. Included as part of the Senate’s rules in 1789, it was deleted in 1806 when the Senate recodified its standing rules. Analysts have differed over its original purpose: Was it a rule to end debate or to postpone consideration of matters? The Senate took the advice of Vice President Aaron Burr and eliminated the rule because it had been used only once in four years, which was “proof that it could not be necessary, and that all its purposes were certainly much better answered by the question of indefinite postponement.” See Martin B. Gold, Senate Procedure and Practice (Lanham, MD: Rowman & Littlefield Publishers, 2004), p. 49. A study by political scientist Joseph Cooper provides strong evidence that the Senate’s previous question motion was not used as a (continued...) 3 Congressional Research Service 2 Amending Senate Rules at the Start of a New Congress adopted a rule (Rule XXII) to allow a supermajority to bring debate to close. Over time, however, lengthy debate, and its threat, evolved to become a potent obstructive practice for delaying or preventing chamber consideration of measures or matters. There is significant frustration in the present-day Senate with extended debate because it is difficult to end talkathons. A key reason for the difficulty is that on most measures and matters, a vote of three-fifths of the Senators duly chosen and sworn (60 if all 100 seats are filled) is required to invoke cloture under Rule XXII, which imposes limits on overall consideration. Little surprise that in a sharply divided and polarized Senate, the number 41 is stronger than 59. An even higher threshold (two-thirds of those voting, a quorum being present)7 is required to end debate on measures to amend the Standing Rules of the Senate. The supermajority vote required to invoke cloture on both substantive issues and amendments to Senate rules is among the major factors that explain why in recent years various Senators have urged procedural revisions. Among current proposals are changes to limit opportunities for prolonged debate on certain motions, to reduce the length of time required to end debate under Rule XXII, to lower the 60-vote threshold to invoke cloture, or to require Senators to remain in the chamber and engage in a so-called “talking filibuster”—as portrayed in the aforementioned Mr. Smith Goes to Washington—rather than use other methods (repeated quorum calls, for example) to stall Senate action.8 With heightened interest in revising Senate procedures that permit lengthy debate, this report has several purposes.9 First, it provides a general overview of the Senate’s contemporary legislative context that has triggered renewed interest in amending the Standing Rules of the Senate at the beginning of—even during—a new Congress. Second, the report focuses mainly on issues (...continued) debate-ending motion. See Joseph Cooper, The Previous Question: Its Standing as a Precedent for Cloture in the United States Senate (Washington, D.C.: U.S. Govt. Print. Off., 1962). Also see Sarah A. Binder and Steven S. Smith, Politics or Principle? Filibustering in the United States Senate (Washington, D.C.: Brookings Institution Press, 1997). Binder and Smith state, in part: “It seems the [previous question] motion was not used to limit debate but had become a tactical means of postponing decisions.... The principles of free speech were hardly at stake in the 1806 decision to eliminate the previous question rule.” pp. 38-39. In short, the Senate’s deletion of the previous question motion from its rules did not give rise to filibusters because the 1806 motion was neither used to end debate nor bring the Senate to a vote on the pending matter. 7 The language commonly used in referring to Senate votes, specifically the words “present and voting” as in “twothirds of those present and voting,” means “voting, a quorum being present.” Why? Because “present and voting” is both imprecise and misleading. Consider this example. A vote of 66 yeas, 33 nays, and 1 response of “present” (not technically a vote) is by precedent sufficient to override a veto or adopt a proposed constitutional amendment. However, if you phrase the vote requirement as “two-thirds of those present and voting,” 66 yeas, 33 nays, and 1 response of present, the vote would fail. Although this report uses “present and voting” in various places, the more precise language is “voting, a quorum being present.” The importance of “a quorum being present” is that at least 51 Senators must vote to comply with the constitutional quorum requirement: “a Majority of each [House] shall constitute a Quorum to do Business” (Article I, section 5). 8 See CRS Report R41342, Proposals to Change the Operation of Cloture in the Senate, by (name redacted) and (name redacted) . Worth mention is that some House Members have a negative view of the filibuster. As former Representative David Obey, D-WI, once said: “The filibuster and the threat of the Senate filibuster impacts virtually everything that happens in both bodies. When senators tell me to keep my damn nose out because it’s Senate rules, my response is, ‘Hell it is.’ It has a huge impact on our ability to produce, and we get tarred by the Senate’s impotence.” See Susan Davis, “A Different Place,” National Journal, October 16, 2010, p. 10. 9 See, for example, Carl Hulse, “G.O.P. Senator Seeks To Forge Path for Change,” New York Times, November 10, 2015, p. A15; Seung Min Kim, “Republicans Weight Battle Over Filibuster Rules,” Politico, November 5, 2015, p. 1; and Emma Dumain and Niels Lesniewski, “McConnell Faces More Calls for ‘Nuclear Option’ in Senate,” Roll Call, September 18, 2015, online edition. Congressional Research Service 3 Amending Senate Rules at the Start of a New Congress associated with what some call the “constitutional option,” as distinguished from the “nuclear option.” Proponents of the constitutional option cite Article I, Section 5, of the Constitution— “Each House may determine the Rules of its Proceedings”—as granting them the authority to amend the rules of the Senate on opening day by majority vote and without filibusters. Senate rules require a supermajority vote to end debate on proposals to amend chamber procedures. The nuclear option refers to the creation by majority vote of new precedents to curb filibusters of specific measures or matters. Third, the report reviews three Congresses (1953, 1957, and 1959) where various Senators professed that a complete rewrite of Senate rules was in order at the start of a new Congress. Fourth, an analysis of the 1961 through 1975 cloture revision proposals is presented. These initiatives focused principally on amending Rule XXII rather than adopting a new Senate rulebook. As with the reform attempts of the 1950s, this analysis summarizes several of the key parliamentary and political considerations or challenges likely to confront contemporary advocates who would like to change Senate rules at the opening of a new Congress. Fifth, the report examines several issues that emerged during these past attempts to change Senate rules that might affect contemporary efforts to revise Senate rules. The report concludes with an afterword that highlights significant cloture developments post-1975, especially the November 21, 2013, precedent that established majority cloture on most presidential nominations (see the discussion in Part VI). Legislative Context The legislative work of the contemporary Senate is regularly influenced by at least two key procedural and political factors. First, the Senate remains at its core a “minority rule” institution. The chamber’s rules, precedents, and practices accord extraordinary procedural prerogatives to every Senator. No other democratic legislative assembly worldwide, so far as is known, grants its Members such wide-ranging freedom as are accorded to U.S. Senators to debate and to offer amendments, including amendments unrelated to the pending question. Restrictions can be imposed on each of these freedoms, but both are mostly available to all Senators to employ as they personally determine. One consequence is that any Senator is well-positioned to stall or frustrate chamber action on measures or matters, sometimes temporarily, sometimes permanently. Procedural actions by Senators who oppose a measure are particularly potent when time is at a premium near the close of a session. As a frustrated Senate majority leader lamented: “Only in the United States Senate and only in the last few days of a session can 85 Senators vote one way: Yes, for this bill; 12 Senators vote another way: No against the bill—and the no’s prevail.”10 Second, the Senate is currently highly polarized. Collaboration and compromise across the party divide can be much harder to attain than in the post-Depression and World War II eras. Many factors account for this development. For example, Members of the two Senate parties hold sharply divergent views on many of the major issues of the day (the proper role of government, for example). Another factor that inhibits biparty cooperation is intense electoral competitiveness of the two parties as each struggle to win governing power. Bipartisan coalitions, as a result, are very difficult to forge on consequential measures and matters. Recent Senates also have witnessed minority party Senators, whether Democratic or Republican, using an array of parliamentary tools to make governance by the majority party extraordinarily difficult. In response, Senate majority 10 Congressional Record, vol. 138, October 5, 1992, p. 16577. The statement is by Senate Majority Leader George Mitchell, D-ME. Congressional Research Service 4 Amending Senate Rules at the Start of a New Congress party leaders have employed parliamentary countermoves to try to advance their policy and political priorities.11 Aggressive use of chamber rules and practices—such as routine threats to filibuster legislation or nominations—has triggered calls for procedural reform. The filibuster is perhaps the prime target for change because its goal is often to delay or prevent votes on measures or matters that might otherwise pass the Senate with majority support. As former Senate Republican Whip Thomas Kuchel of California explained: “What is a filibuster? My definition would be that it is irrelevant speechmaking in the Senate, designed solely and simply to consume time, and thus to prevent a vote from being taken on pending legislation.”12 Of course, extended debate serves a variety of purposes, as previously noted, such as to inform and enlighten colleagues and the attentive citizenry; inflame public opinion; focus attention on emerging issues; foster reasoned deliberation on legislation; influence lawmakers’ votes; or highlight the strengths and weaknesses of legislative proposals and presidential nominations. A filibuster marathon by one or more Senators is not easy to stop, however.13 The Senate has only one formal rule (Rule XXII) to terminate prolonged debate on measures or matters. It is a time-consuming, multi-step procedure that impacts at least three session days. This salient fact compounds the difficulty of managing a deadline-driven and workload-packed institution; further, as noted earlier, Rule XXII requires a three-fifths vote of the Senators duly chosen and sworn to bring debate to a close. Even then, Rule XXII commonly allows for up to 30 more hours of post-cloture consideration on most matters before a vote could occur on the clotured measure or matter. The procedural reality is that the mere threat of extended debate— perhaps foreshadowed by objections to unanimous consent requests—is often enough to block action on measures or matters, not because proponents lack majority support but because the 60vote threshold is beyond reach barring, perhaps, various concessions to opposition lawmakers. Even if a party has 60 or more Members, chamber leaders may not want to consume valuable time to go through the cloture process, thus empowering smaller minorities. Significantly, Rule XXII stipulates that a two-thirds vote of Senators present and voting (interpreted to mean two-thirds of the Senators voting, a quorum being present) is required to invoke cloture on proposals to amend the Standing Rules of the Senate. The proposals themselves only need the support of a majority—even a simple majority, 26 of 51—of Senators to pass the Senate. The conundrum for reform-minded Senators: if they mobilize at least a majority of Members who favor altering Rule XXII, they cannot accomplish their objective under the terms of the rule they want to change. In short, the reformers face a “Catch-22” parliamentary dilemma. As Senator Jacob Javits, R-NY, pointedly noted: “True, the Senate by a majority [even a simple majority] at any time can work its will on any piece of legislation, including a change in the rules, but the question is: What does it take to get to the point where the majority can manifest its will?”14 In the case of rules changes, the answer is that it could first require the support of a two11 Two relevant articles on contemporary changes in the Senate are Steven S. Smith, “The Senate Syndrome,” Issues in Governance Studies, No. 35, June 2010, The Brookings Institution, Washington, D.C.; and George Packer, “The Empty Chamber,” The New Yorker, August 9, 2010, pp. 38-51. 12 Congressional Record, vol. 107, January 4, 1961, p. 82. 13 Senator Strom Thurmond of South Carolina holds the filibuster record, speaking on the Civil Rights Act of 1957 for 24 hours and 18 minutes. 14 Congressional Record, vol. 105, January 8, 1959, p. 124. Another reform-minded Senator, Democrat Paul Douglas of Illinois, expressed a view similar to that of Senator Javits: “[T]he only safe method of establishing clearly the right of the Senate to adopt rules is to do so at the beginning of the session, when the Senate would not be crippled by the straitjacket for which there was no key; namely, rule XXII.” See p. 127. On the other hand, Majority Leader Lyndon Johnson, D-TX, made it abundantly clear, “At every session of the Congress the rules are amended. They are amended (continued...) Congressional Research Service 5 Amending Senate Rules at the Start of a New Congress thirds supermajority of Members voting to bring to an end, as Rule XXII states, a filibuster against “a measure or motion to amend Senate rules.” Only then could a Senate majority vote on the revision itself. The Constitutional and Nuclear Options The “constitutional” and “nuclear” terms are often used interchangeably because at their heart each seeks to change Senate Rule XXII (or any Senate rule) by majority vote, circumventing the two-thirds cloture requirement to bring debate to an end on proposals to alter Senate rules. The term “nuclear” can apply to both options in this specific sense: the success of either the constitutional or nuclear option might trigger a parliamentary meltdown, an explosion of dilatory and obstructive tactics by Senators who vehemently oppose limitations on their ability to filibuster measures or matters.15 Both options might also use novel procedures to achieve their objectives. For ease of comparison, this report considers the two options separately, which emulates a study by two acknowledged Senate procedural experts.16 The “constitutional” option refers to efforts at the start of a new Congress to amend Senate rules by majority vote, without regard to Rule XXII’s two-thirds requirement for ending debate. Proponents of this approach cite the constitutional provision that “Each House may determine the rules of its proceedings.” Opponents exclaim that “the Constitution says nothing of the sort. It merely says ... that both Houses can make their own rules.”17 Opponents also emphasize that the Senate has rules that require a supermajority vote to end debate on proposals to amend chamber procedures. The nuclear option refers to the creation of new precedents that prevent filibusters of specific measures or matters. As Senate precedents state: “Any ruling by the Chair in response to a point of order made by a Senator is subject to an appeal. [If there is an appeal, a majority vote of the Senate upholds the decision of the Chair.] If no appeal is taken, the ruling of the Chair stands as the judgment of the Senate and becomes a precedent for the guidance of the Senate in the future.”18 In the view of two Senate procedural experts, the nuclear option is “essentially a variant (...continued) with respect to the constitution of our committees and the ratio of majority and minority members. That is usually done by unanimous consent. But I point out again for the Record that the majority of the Members of the Senate can rewrite the rules, each one of them, all 40 of them. Substitutes may be submitted for each of the 40 rules. The Senate can amend them in any respect it may desire, at any time a majority of the Senate shall so decide…. [T]he Senate of the United States, by majority vote, can amend any of its rules or rewrite all its rules.” See pp. 105-106. Senator Javits responded: “All the argument to the effect that the majority can change the rules at any time is so much dust thrown in the eyes of those who wish to reach the end of the rule XXII question. The dust arises because of the fact that the question is not whether a majority can vote a change—there is no question about that; it can vote a change at any time—but a question of when the majority can reach a vote.” See p. 125. 15 An attorney, Jeffrey Tobin, wrote about a 2005 plan to circumvent the 60-vote requirement of Senate Rule XXII to end judicial filibusters by majority vote. He titled his article “Blowing Up the Senate,” The New Yorker, March 7, 2005, pp. 42-46. 16 Richard A. Arenberg and Robert A. Dove, Defending the Filibuster (Bloomington, IN: Indiana University Press, 2012. Chapter 10 of this book is titled “Reforming the Filibuster: The Constitutional Option;” Chapter 11 is titled “Reforming the Filibuster: The Nuclear Option.” Arenberg and Dove quote Senator Trent Lott, R-MS, the former Majority Leader (1996-2004), as the originator of the “nuclear option” term. He later called it the “constitutional plan,” which, he said, was “inspired by prose about appointing judges found in both the Constitution and the Federalist Papers.” p. 136. 17 Congressional Record, vol. 121, March 4, 1975, p. 5080. 18 Alan S. Frumin, Senate Procedure: Precedents and Practices (Washington, D.C.: U.S. Govt. Print. Off., 1992), p. (continued...) Congressional Research Service 6 Amending Senate Rules at the Start of a New Congress of the ‘constitutional option.’ The difference is that this parliamentary maneuver would be applied [during] a congressional session” rather than at the beginning of a new Congress.19 Senators often turn to one or the other option in their attempt to amend the Standing Rules of the Senate by majority vote, bypassing the supermajority impediment. The use of either option to try to amend a major rule of the Senate is almost certain to rile many Members as being outside the conventional legislative process: proposals to amend Senate rules are typically referred to the Committee on Rules and Administration for study and review. Attempts to amend Rule XXII can arouse considerable notice by the media, outside groups, and the attentive public. To summarize: the nuclear option involves the creation of new debate-ending precedents using proceedings that may require actions in contravention of existing precedents or rules. Precedents are the common law of the Senate and govern scores of chamber proceedings. As freshman Senator Jeff Flake of Arizona noted in his maiden speech, the Senate is “an institution bound by tradition and precedent.”20 Former Senator Judd Gregg of New Hampshire, a four-term veteran of the Senate, underscored Senator Flake’s observation. “To the extent that there are precedents,” he said, “they’re extraordinarily important. In the parliamentary process, precedent is what controls.”21 Precedents do not change the formal text of Senate rules, but they do affect their interpretation and application in Senate proceedings. The other route to amending the Standing Rules of the Senate by majority vote emphasizes the Senate’s constitutional rulemaking authority under Article I, Section 5. This approach has often occurred biennially at the beginning of a new Congress. It is the principal focus of this report. Remember that a Senate majority can amend the Standing Rules at any time. At issue is Rule XXII’s two-thirds vote requirement to invoke cloture before the Senate might adopt by majority vote a pending amendment to its Standing Rules. A further review of the two reform options— creating precedents or amending Senate rules—merits additional discussion because each option can provoke contentious floor struggles. Precedents and Senate Rules A feature of precedential change is that the text of a formal rule remains unchanged, such as Rule XXII, but the new precedent effectively alters all or part of its application and interpretation in chamber proceedings. A good on-point illustration of how a precedent could change Rule XXII was considered in May 2005.22 Majority Leader Bill Frist, R-TN, was frustrated by Democratic filibusters against judicial nominees of President George W. Bush. The majority leader realized that in a polarized Senate with 55 GOP Senators and partisan tensions high, he was unlikely to attract the 60 votes required to invoke cloture to end extended debate on a nomination. However, he believed he could win majority approval of these nominees by employing the nuclear option, establishing by majority vote a Senate precedent that would end the ability of a minority party to filibuster these nominees and permit a Senate majority to overcome these filibusters. One version (...continued) 145. 19 Arenberg and Dove, Defending the Filibuster, p. 135. 20 Senator Jeff Flake, Congressional Record, vol. 159, June 4, 2013, p. S3927. 21 Joseph J. Schatz, “Debate Turns to Precedents Already Established and Those in the Making,” CQ Today, March 24, 2010, p. 7. 22 For an analysis of several examples of changing Senate procedures by precedent, as well as useful background on the filibuster, see Martin B. Gold and Dimple Gupta, “The Constitutional Option To Change Senate Rules and Procedures: A Majoritarian Means To Overcome the Filibuster,” Harvard Journal of Law & Public Policy, Fall 2004, pp. 205-272. Congressional Research Service 7 Amending Senate Rules at the Start of a New Congress of the parliamentary strategy he devised to create this precedent outlines a sequence of actions like the following:       Bring a controversial judicial nominee to the floor, which Democrats would filibuster. After a failed cloture vote to end debate on confirming the nominee, Senator Frist would raise a point of order that further debate was dilatory and that a majority vote was sufficient to invoke cloture on the nominee. The ruling by the presiding officer, perhaps the President of the Senate, Vice President Dick Cheney, would sustain the point of order. This ruling might not comport with established precedents and be contrary to the advice of the Senate parliamentarian. As one news account stated, Cheney “almost certainly will oversee [as the presiding officer] any deployment of the so-called ‘nuclear option’ on judges.”23 If the Chair’s ruling at this point went unchallenged, it would set a new Senate precedent. However, the strong likelihood was that the minority leader would appeal the decision of the Chair on the grounds that it contravenes existing rules governing Senate procedure. The majority leader would then make a non-debatable motion to table (kill) the appeal. A Senate majority would agree to the tabling motion, which would have two immediate consequences: (1) affirming the Chair’s ruling, thus ending further extended debate on the pending judicial nomination, and (2) establishing a new precedent—as defined by the point of order—that allows Senators to end judicial filibusters by majority vote. Majority Leader Frist never had the chance to execute his planned procedural maneuver. He was blocked by a bipartisan accord reached by an ad hoc Senate group, the so-called “Gang of 14,” seven Democrats and seven Republicans. This bipartisan group had been meeting quietly for weeks, trying to devise a compromise to break the political stalemate on judicial nominations and avert use of the nuclear option. They were successful. For example, in their Memorandum of Understanding, the seven Republicans promised not to support “any recommendation to or interpretation of the Rules of the Senate that would force a vote on a judicial nomination by means other than unanimous consent or Rule XXII.” In return, the seven Democrats promised not to filibuster certain pending judicial appointments, and agreed that judicial nominees “should only be filibustered under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist.”24 Thus, a highstakes parliamentary showdown over ending filibusters on judicial nominations by majority vote was averted. Nevertheless, the basic concept of this form of action generally provided the structure for the successful use of a “nuclear option” eight years later by Majority Leader Harry Reid, D-NV (see Part VI). Four strategic considerations are important to note about Senator Frist’s unrealized plan. First, it is especially useful for advocates of procedural change to have the support of the majority leader, because he sets the schedule of floor proceedings, enjoys priority of recognition from the Chair, and engages in the vote-gathering process. Second, it is essential to have a supporter presiding, so 23 24 Geoff Earler, “The Veep Is Heading To Disclosed Location,” The Hill, April 28, 2005, p. 1. The Memorandum of Understanding can be found in the Congressional Record, vol. 151, May 24, 2005, p. 10931. Congressional Research Service 8 Amending Senate Rules at the Start of a New Congress that he/she will follow an agreed-upon procedural script—including the issuance of rulings contrary to precedent—that bolsters the objectives of the reformers. Third, the majority leader should expect an appeal of the Chair’s ruling, either by the minority leader or his designee. Fourth, once the appeal is made, the majority leader would immediately offer a non-debatable motion to table (kill) the appeal, which would be agreed to by majority vote. Thus, the new precedent would end filibusters on judicial nominees. Important to emphasize in the Frist example is the favorable ruling of the Chair. Without it, the majority leader cannot secure the desired precedent by moving to table the appeal. If the presiding officer rejects the majority leader’s point of order, an appeal of that ruling would place the majority leader in an untenable parliamentary situation for two reasons. First, appeals normally are subject to unlimited debate that may require a supermajority vote to limit, outcomes diametrically opposed to the preferences of the majority leader. Second, a motion to table the appeal, if one should be made, is not an effective option for the majority leader because it upholds the Chair’s ruling. Failure to table means the appeal remains open to extended debate. The Senate’s Rulemaking Authority Champions of filibuster reform contend that the Senate may, like the House, adopt its rules by majority vote when a new Congress convenes. Among the inter-connected principles asserted by reform-minded Senators are as follows: (1) A Senate majority has the constitutional right at the start of a new Congress to create or amend procedural rules, unhindered by Senate rules inherited from earlier Congresses. (2) All Senate rules continue from one Congress to the next except those viewed as being unconstitutional. The cloture rule, therefore, is unconstitutional to the extent that it inhibits the Senate from exercising its constitutional power to amend its rules. (3) Even if Senate rules continue from one Congress to the next, this continuity cannot extend to rules viewed as being unconstitutional. As asserted in 1969 by Democratic Senator Frank Church of Idaho, the start of a new Congress is a special constitutional time that permits the Senate to change its procedures by majority vote unencumbered by chamber rules adopted by a previous Congress. Experience over the past two decades makes it perfectly clear that there is no escape hatch once the Senate binds itself to rule XXII at the beginning of a new Congress. After rule XXII is acquiesced in by a new Congress, it becomes self-perpetuating until the next Congress is elected, since it has proven impossible to obtain the required two-thirds vote to close debate on any proposal to change the rule. This means that modification of [Rule XXII] will either be won at the opening of a new Congress, when the majority can make the decisions, or it will not be won at all.25 Many lawmakers, then and now, challenge Senator Church’s view as being contrary to Senate rules, traditions, and the long-standing “continuing body” doctrine. Senator Church argues that the Senate that convenes after an election is a new Senate; others emphasize that it is a continuing body, which has been the unbroken tradition since the Second Congress. The basic idea of the continuing body is that from its beginning in 1789, the Senate always has a quorum (a majority under the Constitution) of Senators to conduct official business. Proponents of this doctrine state that because only one-third of the Senate’s membership stands for election every two years, the Founding Fathers enabled the other two-thirds of the chamber’s membership to operate as a functioning continuing body. Moreover, long-standing practices bolster the credibility of the doctrine, such as Senate officers have no set term of office and serve until their 25 Congressional Record, vol. 115, January 13, 1969, p. 528. Congressional Research Service 9 Amending Senate Rules at the Start of a New Congress successors are named; standing committees and their membership, as well as standing orders, simple Senate resolutions and concurrent resolutions (such as budget resolutions), and unanimous consent agreements continue from one Congress to the next until they are changed; treaties submitted to the Senate and articles of impeachment from the House of Representatives remain before the Senate from one Congress to the next; and “the uniform practice from the time of the organization of the Second Senate until the present time has been to treat the rules of the Senate as continuing.”26 Further, a 1959 amendment to Senate Rule V states explicitly that the chamber’s rules continue from one Congress to the next “unless they are changed as provided in these rules,” which include the supermajority cloture requirements of Rule XXII. Rule V was adopted as part of a package amending Rule XXII. It was not voted on separately. Senate history also reveals that there is not universal adherence to the continuing body thesis. In 1959, prior to the aforementioned Rule V addition to the Standing Rules of the Senate, Senator Hubert Humphrey of Minnesota referred to “the misguided theory that the rules of the Senate are continuing.” He contended that the theory was of “doubtful validity.”27 His point was two-fold: first, simply because two-thirds of the Senate’s Members carry over from one Congress to the next does not mean that the Senate cannot change its rules by majority vote;28 and, second, because the Senate’s rules carry over does not imply that a new Senate necessarily favors the old rules. In short, a fundamental question is this: Do the rules of the Senate automatically carry over from Congress to Congress and govern proposals to change Senate rules at the start of a new Congress? Senate Rule V—chamber rules carry over unless changed according to the procedures outlined therein—answers the question affirmatively.29 Senate reformers assert that the Constitution (Article I, Section 5) takes precedence over Senate Rule V. As Democratic Senator Joseph S. Clark of Pennsylvania said: The fact is that the Senate is a continuing body for some purposes but not for others. The question is accordingly entirely irrelevant to the issue of the constitutional right of each newly elected Senate to change its rules at the beginning of each session, as authorized by the Constitution. For that purpose the Constitution overrides any fine spun theory about a continuing body.30 Three times in the 1950s—1953 (the 83rd Congress), 1957 (the 85th Congress), and 1959 (the 86th Congress)—Senate reformers stated the case for the Senate’s right to adopt its Standing Rules at the start of a new Congress without facing a possible supermajority hurdle. If successful, their goal also would do away with the continuing body doctrine. The historical record suggests that the principal focus of the 1950s reformers was to amend Rule XXII rather than to readopt the Senate’s Standing Rules every two years. Yet they had to argue for revising chamber rules because of two 1949 changes to Rule XXII that made any effort to amend only that rule highly problematic, if not impossible. This reality heavily conditioned the 1950s efforts. First, the number required to invoke cloture was changed in 1949 from the original 1917 cloture rule—two-thirds of those voting—to two-thirds of the Senators duly chosen and sworn. Saddled with mobilizing a higher threshold of support for invoking cloture, the 1950s reformers knew the 26 Congressional Record, vol. 99, January 7, 1953, pp. 165-178. Congressional Record, vol. 105, January 8, 1959, p. 119. 28 Left unaddressed by Senator Humphrey is whether the carryover of a quorum means that the rules carry over. 29 The continuity provision in Senate Rule V was adopted as part of the package amending Rule XXII. It was not voted on separately. 30 Congressional Record, vol. 109, January 31, 1963, p. 1504. 27 Congressional Research Service 10 Amending Senate Rules at the Start of a New Congress odds of that happening were quite slim. Second, and more significant, the 1949 change to Rule XXII disallowed cloture on motions to proceed to the consideration of proposals to alter Senate rules. This feature of Rule XXII remained in place until it was changed in 1959. In short, the reformers had no real or effective way to stop filibusters on Senate rule changes. As a result, reformers—led by Senator Clinton Anderson, D-NM—believed that the only way they could alter Rule XXII by majority vote without provoking a filibuster was to invoke the constitutional option: assert their right to adopt new Senate rules by majority vote, rejecting any supermajority requirement to achieve that goal. (They did not consider the nuclear option.) Until new rules were adopted, the presumption of the reformers was that the Senate would follow general parliamentary procedures that would permit a majority to cut off extended debate, such as the previous question motion. Their plan, if agreed to, would shatter the continuity doctrine. (In later years, reformers emphasized that their primary focus was to revise Rule XXII rather than all Senate rules). Attempts to Amend the Standing Rules of the Senate on Opening Day: 1953, 1957, and 1959 It is useful to note that several parliamentary topics discussed herein vary in their salience in the debates of different years. Even so, they are subjects that have been raised repeatedly over the decades during debates on revising Senate rules. The topics include such matters as the role of the majority leader and the Vice President as presiding officer; the continuing body doctrine; interim procedural rules pending adoption of new Senate rules (or amendments thereto); the “opening day” concept; parliamentary strategies; and ending debate. To be sure, many of these general issues also orient much of the cloture reform discussion in subsequent decades. 83rd Congress (1953) On January 6, 1953, Senator Clinton Anderson, D-NM, moved “that the Senate take up for immediate consideration the adoption of rules for the Senate of the Eighty-third Congress.” As he stated, “I am contending that we are operating without rules at the present time.”31 Senator Anderson’s view was that the Senate’s rules had expired, which would mean that new ones could be adopted by majority vote of the membership without the requirement for a supermajority cloture vote to end debate on their proposal. A reform advocate, Democratic Senator Paul Douglas of Illinois, contended that, in the absence of Senate rules, “general parliamentary law governed in the Senate” until a majority adopted new Senate rules.32 Anderson’s fundamental goal was to retain the Senate’s previous rules with one exception: amend Rule XXII to reduce the number required to invoke cloture. Majority Leader Robert Taft, R-OH, noted that he could deal with Senator Anderson’s motion in several ways: by extended debate, by a non-debatable motion to table (or kill) the motion, or by raising a point of order. He then said that, after sufficient debate on Anderson’s motion, he would either move to table or make a point of order that the motion contravened the continuing rules of the Senate. Senator Taft noted that no “Senate has undertaken at the beginning of a Congress to adopt its rules. It has been assumed that the Senate is a continuing body and that it has continuing 31 32 Congressional Record, vol. 99, January 6, 1953, p. 118. Ibid., January 7, 1953, p. 220. Congressional Research Service 11 Amending Senate Rules at the Start of a New Congress rules.”33 He added: “It is now said that the Senate must now operate under Robert’s Rules of Order, or some other rules of parliamentary law. But surely there must be rules of some kind. It seems obvious to me that those should be the [existing] rules of the Senate.”34 Senator Taft was suggesting that Senate rules have been continuously in effect since the First Congress, with later amendments, without any explicit requirement that they must be readopted at the start of every new Congress. Since the Senate already had rules, there was no need to proceed to adopt biennially a set of new rules. Opponents of the continuing body thesis recognized its “Catch-22” feature: how can the Senate amend Rule XXII when the practical effect of that rule is to prevent its amendment? To overcome this obstacle, supporters of majority cloture (or some other change in the number needed to invoke that procedure) contended that every new Senate can amend its rules by majority vote under the Constitution. The continuing body argument, reformers said, is simply not relevant, because any new Senate on opening day can adopt its own rules. As Senator Humphrey put it: “I think the question before the Senate is whether we have the right to adopt rules, be they good, bad, or indifferent. Do we, as Members of this body, lose our right to have anything to say about its rules, by reason of the fact that we are elected to a Senate which adopted rules years and years ago?”35 Moreover, Members who voted for those rules probably no longer serve in the institution? Acquiescence in repeatedly accepting the rules of previous Senates did not mean, according to Senator Humphrey, that “the Senate has … renounced its constitutional right to make its own rules. It cannot, in fact, renounce this constitutional power.”36 Majority Leader Taft, who doubtless knew he had the votes to table Anderson’s motion, responded to these issues in various ways. For one, he stated that the continuing body theory is supported by tradition and precedent and enhances the Senate’s “prestige and power. I believe that it adds to the influence we have with the people in performing the duties which we have to perform.” For another, it is a “radical step” to declare “that the Senate is not a continuing body, that we have no rules, and that at the first of every session we are to debate all the practices and rules of the Senate.” Third, Senator Taft noted that, if reformers can mobilize the votes and with favorable rulings from the presiding officer, “it is always possible for the Senate to protect itself against a filibuster.” He added: “I submit that the rules of the Senate permit a change by a majority vote at any time the Senate wishes to make a change.”37 Majority Leader Taft also made clear that he would not prejudice the right of Senator Anderson to offer his rules-revamping resolution. In the end, after three days of debate (January 3, 6, and 7), the Senate voted by a wide margin (70 to 21) to table Senator Anderson’s motion.38 That decision meant that existing Senate rules continued to govern chamber proceedings. 33 Ibid., January 6, 1953, p. 108. Ibid., pp. 111-112. Senator Richard Russell of Georgia, the acknowledged leader of the informal “Southern Caucus,” inquired of Vice President Alben Barkley under what rules was the Senate operating. He received this response from the Chair: “The organization of the Senate is an inherent right of the Senate, as it is of any sovereign body, and all that has taken place up to date has been under that inherent right.” Ibid., January 3, 1953, p. 10. 35 Congressional Record, January 6, 1953, p. 114. 36 Ibid., Jan. 7, 1953, p. 220. 37 Ibid., January 7, 1953. The first and second points are found on p. 112, the third on p. 113. 38 Ibid., p. 232. 34 Congressional Research Service 12 Amending Senate Rules at the Start of a New Congress 85th Congress (1957)39 On January 3, Senator Anderson made the same motion that he proposed four years earlier. Citing Article I, Section 5, of the Constitution, Senator Anderson said: “I now move that this body take up for immediate consideration the adoption of rules for the Senate of the 85th Congress.” Majority Leader Lyndon Johnson, D-TX, exercising his leadership prerogative of first recognition by the Chair, planned to offer a motion to table Anderson’s proposal. However, after some discussion with Anderson and his supporters, Johnson proposed a unanimous consent agreement that provided six hours of debate, equally divided, with a vote on the tabling motion to occur the next day at 6 p.m. There was no objection to the accord. During discussion of the unanimous consent agreement, Senator Wayne Morse, D-OR, suggested that the Senate ought to face the issue head-on of whether a new Senate can adopt new rules. He suggested that the Senate follow these parliamentary steps: First entertain a motion [that Senator Anderson] proposes to make to the effect that the Senate proceed to adopt Senate rules binding upon the 85 th Congress. Second, the Senate and the Presiding Officer should then consider a point of order raised by some Senator asking for a determination as to whether or not the motion calling for the adoption of new rules is in fact in order. Third, the Senate should then consider an appeal from the decision of the Chair on the point of order.40 Senator Johnson disagreed with Morse’s recommendation. He pointed out that a vote on the motion to table was used in 1953 and, furthermore, “when any Senator votes on the motion to lay on the table, he really is voting on the question of whether new rules for the Senate should be adopted at the beginning of the 85th Congress.”41 The next day the Senate voted 55 to 38 for Senator Johnson’s tabling motion.42 Nonetheless, reform advocates won a favorable and detailed advisory opinion from the President of the Senate, Vice President Richard Nixon, concerning the Senate’s constitutional right by majority vote to change its rules at the beginning of a new Congress. Nixon’s advisory opinion addressed how to reconcile two constitutional mandates: (1) the constitutional provision that only one-third of the Senate is up for election every two years, implying that the Framers intended the Senate to be a continuing body “for at least some purposes;” and (2) the constitutional provision providing that “each House may determine the rules of its Proceedings.” Responding to a parliamentary inquiry from Senator Humphrey, Vice President Nixon said in part: Any provision of Senate rules adopted in a previous Congress which has the expressed or practical effect of denying the majority of the Senate in a new Congress the right to adopt the rules under which it desires to proceed is, in the opinion of the Chair, unconstitutional. 39 No attempt was made at the start of the 84th Congress to revise Senate Rule XXII. As Senator Anderson explained, Senate reformers “assembled once more to consider challenging Rule XXII…. But in the [1954] elections, the Democrats had regained control of the Senate by a slim margin and Lyndon Johnson had thereby gone from Minority Leader to Majority Leader. Johnson approached one of our strongest allies, [Senator] Hubert Humphrey, and pleaded with him to forget the rules fight for the time being…. Humphrey came back to us and asked us to desist from embarrassing his friend Lyndon. He also communicated Johnson’s entreaty that we not shatter party harmony on the eve of our resuming control of the Congress. So in 1955, we deferred to the wishes of our Majority Leader and skipped the biennial assault on the seemingly impregnable fortress of Rule 22.” See Clinton P. Anderson, Outsider in the Senate (New York: The World Publishing Co., 1970), p. 137. 40 Congressional Record, vol. 103, January 3, 1957, p. 11. 41 Ibid., p. 11. 42 Ibid., Jan. 4, 1957, p. 215. Congressional Research Service 13 Amending Senate Rules at the Start of a New Congress The Chair emphasizes that this is only his own opinion, because under Senate precedents, a question of constitutionality can only be decided by the Senate itself, and not by the Chair. [U]ntil the Senate at the initiation of a new Congress expresses its will otherwise, the rules in effect in the previous Congress in the opinion of the Chair remain in effect, with the exception that the Senate should not be bound by any provision in those previous rules which denies the membership of the Senate the power to exercise its constitutional right to make its own rules.43 Nixon also stated that if Johnson’s tabling motion prevailed (as it did), he would view that as the Senate’s approval of the previous rules of the chamber; if the motion to table failed, that would mean that “the Senate can proceed with the adoption of rules under whatever procedures the majority of the Senate approves.”44 Senator Richard Russell, D-GA, the leader of the southern lawmakers and Senator Johnson’s mentor and patron, made it known informally that, if Anderson’s motion prevailed, he would offer changes to every Senate rule and filibuster every proposed alteration, forcing an endless number of separate cloture votes.45 Although Anderson’s motion was rejected on a procedural vote, reformers garnered a favorable advisory opinion from the Vice President that bolstered their commitment to changing Senate rules by majority vote.46 86th Congress (1959) The legislative context for the constitutional option seemed especially favorable in the 86th Congress.47 One reason was the large Democratic election victory in 1958. The Senate’s lineup went from 49 Democrats to 47 Republicans in the previous Congress to 64 Democrats to 34 Republicans in the 86th Congress. Of 15 Democratic freshmen Senators, at least half were sympathetic to rules changes. Moreover, with Vice President Nixon presiding over the Senate, it was expected that he would offer advisory opinions favorable to Senator Anderson and his supporters. Majority Leader Lyndon Johnson, who opposed the constitutional option, recognized the favorable climate for change and proposed a bipartisan filibuster rules change that the Senate in the end adopted unchanged: the first major change of filibuster rules in a decade. On January 7, the opening day of the 86th Congress, Senator Johnson, using the priority of recognition accorded majority leaders by Senate precedents, asked unanimous consent for the immediate consideration of his reform resolution (S. Res. 5), co-sponsored by nearly every top 43 Ibid., pp. 178-179. Ibid., p. 179. 45 Robert A. Caro, Master of the Senate (New York: Alfred A. Knopf, 2002), p. 856. 46 Senator Anderson wrote that he and Nixon lived only a few blocks from each other in Northwest Washington. “[O]ccasionally, when I was out walking [my] terrier, I would drop by for a talk…. When I talked to Nixon, I found that his position was far different from what Taft’s had been only four years before. He seemed persuaded by the rightness of the cloture amendment,” and seemed ready to assist. See Anderson, Outsider in the Senate, p. 144. A noted biographer of Lyndon Johnson said that Nixon welcomed the opportunity to preside “in hopes of burnishing his civil rights credentials and winning the support of African Americans for an expected run for the White House in 1960.” See Caro, Master of the Senate, p. 856. 47 It is worth emphasizing that the Senate successfully amended Rule XXII in both 1949 and 1959. On March 17, 1949, the Senate adopted S. Res. 15, which toughened the vote required for cloture from two-thirds voting to two-thirds duly chosen and sworn. The Senate also agreed to make Rule XXII applicable to motions to proceed generally, except for motions to proceed to proposals to amend the Standing Rules of the Senate. On January 12, 1959, S. Res. 5 dropped the necessary vote for cloture to two-thirds voting, removed the prohibition against motions to proceed to measures to amend the Standing Rules of the Senate, and added language stating that the Senate’s rules continue from one Congress to the next. 44 Congressional Research Service 14 Amending Senate Rules at the Start of a New Congress Democratic and Republican leader. S. Res. 5 proposed to change the number required to invoke cloture on measures and matters from two-thirds of the entire membership to two-thirds of those present and voting. That standard would also apply to motions to proceed to rules changes. In addition, S. Res. 5 would also add a new clause to Senate Rule V (then Rule XXXII) stating that the rules of the Senate continue from one Congress to the next unless changed as provided in the rules. The new clause, according to two legal scholars, was “a concession to Senator Russell” of Georgia and the other southern Senators.48 Importantly, Senator Johnson’s action preempted Senator Anderson’s motion to have the Senate take up for immediate consideration “the adoption of rules for the 86th Congress,” as he had done in 1953 and 1957. Senator Johnson’s objective was to have his reform initiative and not Anderson’s considered first by the Senate. During his opening remarks on S. Res. 5, Senator Johnson referred to the Senate’s one-day rule, “which entitles the Senate to a day’s notice in writing of motions to amend or modify a rule and that any Senator may insist upon compliance with the rule.”49 If a Member objected to his request for the immediate consideration of S. Res. 5, Senator Johnson said he would comply with the one-day written notice requirement and then call up S. Res. 5 the next session day (January 8). Subsequent to Johnson’s asking unanimous consent for the immediate consideration of S. Res. 5, Senator Jacob Javits, who supported Anderson, asked Presiding Officer Nixon: “Under what rule will the resolution submitted by the Senator from Texas be considered?” The Chair replied: under the rules of the Senate “which have been adopted previously by the Senate,” but not any Senate rule that restricts the constitutional right of a majority of Senators “to cut off debate in order to exercise the right of changing or determining the rules.” The Vice President elaborated: If, for example, during the course of debate on the motion of the Senator from Texas, which deals with changing the rules, a Senator believes that action should be taken and debate closed, such Senator at that time could, in the opinion of the Chair, raise the constitutional question by moving to cut off debate. The Chair would indicate his opinion that such a motion was in order but would submit the question to the Senate for its decision.50 After further discussion, Senators Javits and Clifford Case, R-NJ, objected to Johnson’s request to call up S. Res. 5. Two things quickly happened back-to-back. First, Senator Johnson sent to the desk his written notice to amend certain Senate rules. Second, Senator Anderson “moved that the Senate proceed to adopt its rules.” (Senator Anderson’s motion had the bipartisan support of thirty-two other Senators). However, Senator Johnson insisted that he had not yielded the floor and, therefore, Senator Anderson could not offer his motion. The outcome: Senator Johnson adjourned the Senate but not before he declared that “I do not want my motion [S. Res. 5] 48 Gold and Gupta, “The Constitutional Option To Change Senate Rules and Procedures: A Majoritarian Means To Overcome the Filibuster,” p. 231; and Ivan Hinderaker, “From the 86th to the 87th Congress: Controversy over ‘Majority Rule’,” in American Government Annual, 1961-1962 (New York: Holt, Rinehard and Winston Inc., 1961), p. 89. As is the case with numerous legislative provisions, lawmakers have their own reasons for voting for or against such matters. For example, Democratic Senator Joseph O’Mahoney, WY, said he supported Senator Johnson’s continuous rules provision in S. Res. 5 for these reasons: “I am supporting [the binding] provision in the Johnson resolution in order to prevent future Senates of the United States from being tied up at the beginning of the Congress with debates on the floor about the rules. The proposals should be sent to the Committee on Rules and Administration, where such changes could be considered and, if need be, subsequently made in order.” Congressional Record, January 12, 1959, p. 452. 49 Congressional Record, January 7, 1959, p. 8. 50 Ibid., January 7, 1959, pp. 8-9. Congressional Research Service 15 Amending Senate Rules at the Start of a New Congress supplanted by any other motion.”51 Significantly, the adjournment prevented Senator Anderson from giving written notice of his intent to propose revisions to Senate rules.52 The next day, January 8, there was considerable discussion about the procedural state of play in the chamber. Three events are worth noting. First, after the Vice President presented S. Res. 5 to the Senate, Majority Leader Johnson stated, “I will be glad to ask unanimous consent that it be in order to consider [Senator Anderson’s] motion today.” The Senate agreed to Johnson’s consent request, and Anderson—citing Article I, Section 5 of the Constitution—moved to adopt new rules 51 Ibid., p. 11. There are a number of procedural issues that sometimes assume a prominent role in efforts to change Senate rules, as illustrated in Senator Johnson adjourning the Senate. Three things merit mention. First, Senate rules distinguish between a “calendar day” and a “legislative day,” and this distinction can impact when or whether a resolution proposing to amend Senate rules might reach the floor. A “calendar day” is the commonly understood 24-hour time period. A “legislative day” refers to the period when the Senate convenes after an adjournment and ends when it next adjourns. If the Senate recesses at the end of a daily session rather than adjourns—which motion is the prerogative of the majority leader to make—the legislative day is carried over into the next calendar day. For example, if the Senate recesses on July 8 and continues to recess from day to day until July 23, the legislative day still remains July 8. However, as soon as the Senate adjourns, the calendar day and legislative day become the same. Efforts in future years to revise Rule XXII also provoked concern about whether moving to a new legislative day negated the alleged special conditions associated with continuing the first day. Second, simple resolutions (S. Res.)—a usual vehicle for amending Senate rules—can be called up for immediate consideration only by unanimous consent. It is quite common for noncontroversial Senate resolutions (for example, designating September as “National Prostate Cancer Awareness Month”) to be introduced and adopted by unanimous consent on the same day they were introduced. If Senate resolutions are introduced, referred, and reported by the appropriate committee(s) of jurisdiction—remember that committees might refuse to take any action on these measures—they could be called up for chamber consideration by unanimous consent or by a debatable motion to proceed. Absent unanimous consent, as in Senator Johnson’s case, simple resolutions are placed on a special section of the legislative calendar entitled “Resolutions and Motions over, under the rule.” This verbiage means that the resolutions go over to this section of the calendar to be called up—at least positioned to be called up—per the terms of Rule XIV: “When objection is heard to immediate consideration of a resolution or motion when submitted, it shall be placed here [the appropriate section of the legislative calendar], to be laid before the Senate, on the next legislative day for consideration, unless by unanimous consent the Senate shall otherwise direct.” Notice the inclusion of “legislative day” in this Senate rule. A majority leader could prevent any resolution from being taken up by successfully moving to recess the Senate for numerous session days, inhibiting any chance for the resolution to be called up. Moreover, motions to call up resolutions (called “motions to proceed to a measure or matter” in official Senate parlance) are debatable as are the resolutions themselves, requiring a vote of two-thirds of Senators voting, a quorum being present, to invoke cloture on a resolution to amend the Standing Rules of the Senate. In addition, Senate Rule VIII states that any resolutions that have lain over one legislative day, having gone over, under the rule, are laid before the Senate in the order in which they went over, under the rule during a two-hour Senate period called the “Morning Hour.” The morning hour is the first two hours after the Senate convenes following an adjournment. If the resolution is not completed during this period, it is placed on the Calendar of General Orders where it could be called up again by unanimous consent or a debatable motion to proceed to its consideration. And under Senate Rule V, motions to amend Senate rules require one calendar day’s notice in writing, as Senator Johnson provided for S. Res. 5. Third, by adjourning the Senate on January 7, Senator Johnson not only blocked Senator Anderson’s effort to call up his reform resolution for at least two session days—assuming Johnson did not recess the Senate—but he ensured that S. Res. 5 was in compliance with Rule V and Rule XIV. The procedural complexities noted in the previous paragraph did not come to pass. As noted in the text, Senator Johnson said on January 8 that he was amenable to having Senator Anderson’s resolution considered before his own. The Senate agreed to Johnson’s request despite Senator Anderson’s resolution not meeting the requirements of Rules V and XIV. Senator Johnson’s action no doubt indicated that he had the votes to defeat Senator Anderson’s motion, which did in fact occur. There is little doubt that filibuster fights can give rise to procedural hardball tactics where Senate rules and precedents are employed by both opponents and proponents of rules changes. Importantly, it is often the case that the actual rules may be ignored or waived as informal understandings and unanimous consent requests shape the parliamentary maneuvering over rules changes. Senate party leaders understand that if Senate reformers are not given reasonable opportunity to make their case for change on the Senate floor, they have ample procedural means to frustrate Senate action on numerous other matters and measures. 52 Congressional Research Service 16 Amending Senate Rules at the Start of a New Congress for the 86th Congress. Johnson then propounded a unanimous consent request, which was agreed to, that Anderson’s motion be considered as a substitute for S. Res. 5.53 Johnson made it clear that he would consult at some point during the day with Minority Leader Everett Dirksen, R-IL, before offering a motion to table Anderson’s proposal.54 Making Senator Anderson’s motion immediately in order was certainly a strong indication that Johnson had the votes to defeat his colleague’s proposal and to win adoption of S. Res. 5. Second, because the Senate was now in the second calendar day of the new Congress, Senator Javits asked the Vice President whether “the Anderson motion and the Johnson of Texas motion are both within the confines of motions made at the beginning of a new Congress.” The Vice President replied: “The Senator from New York is correct.”55 The Vice President emphasized again the distinction between the procedural position of the Senate at the beginning of a new Congress and during a Congress. At the start of a new Congress, a majority has the constitutional authority to amend its rules; during a Congress, once the initial decision is made about chamber rules, the Senate commits to them whether by acquiescence or formal action.56 Senator Javits tried unsuccessfully to strike the continuity of rules provision from S. Res. 5.57 Third, Vice President Nixon’s judgment that the Senate would follow the old rules except for Rule XXII, which he viewed as unconstitutional, led to considerable discussion of what rules the Senate was observing pending adoption of new ones. Senator Mike Monroney, D-OK, spoke at length about the perils of “throwing out the rule book,” saying “there are no rules which would apply. The Anderson proposal would take us into a blind area.” It would open a “Pandora’s box” of parliamentary misery. He went on to state: “We are asked, by the Anderson motion, to throw overboard the precedents which have been carefully developed since 1790, and to say that on the opening day of a Congress we shall rewrite the entire book of rules and make them subject to adoption. Thus any group of Senators having a strong majority behind them could write rules which could gag the minority.” Senator Monroney urged his colleagues “not to vote to throw away the entire rule book and open the way for a bargain day for crackpots [who would tear up the rule book] in some future Senate.”58 Remarks by South Carolina Senator Strom Thurmond supported the sentiments of Senator Monroney. The South Carolinian asked which form of “general parliamentary law” would serve as temporary rules until the Senate agreed to adopt permanent rules? He listed nine parliamentary manuals (Robert’s Rules of Order, for example) as possibilities. “The Senate could easily spend several months debating and deciding on temporary rules,” exclaimed Thurmond. “After that would come the more difficult and more time consuming task of debating and agreeing on each of the permanent rules.”59 Sensitive to the issues raised by Senators Monroney and Thurmond, Senator Anderson modified his original motion (the adoption of new rules for the Senate), specifying that all Senate rules would remain in effect except Rule XXII.60 In short, what was not subject to amendment was accepted by the Senate. Other reform-minded Senators largely dismissed the concerns of Senators 53 Congressional Record, January 8, 1959, pp. 98-99. Ibid., p. 103. 55 Ibid, p. 101. 56 Ibid., pp. 101-102. 57 Ibid., pp. 452-453. Each amendment was rejected on a division (standing) vote. 58 Ibid., p. 108. 59 Ibid., p.146. 60 Ibid., January 9, 1959, p. 201. 54 Congressional Research Service 17 Amending Senate Rules at the Start of a New Congress Monroney and Thurmond. “Over in the other body of Congress,” stated Senator Javits, “this whole job [of amending and adopting the rule book] was done in 3 minutes. The House does it every 2 years.... They have made it work for decades.”61 Senator Humphrey added that reasonable Senators “know that most of the rules would be reenacted time after time, as is the case in the House of Representatives.”62 Senator Paul Douglas said he was astounded that several of his colleagues believed that the Senate could not adopt new rules very quickly at the start of a new Congress, as occurs in the House. “I do not claim we are superior to the House,” he said. “But I do say we are at least as sensible as the House and as coordinated as the House, and that if the House can adopt new rules at every [new Congress], the Senate can also do it.”63 When debate ended, Majority Leader Johnson moved “to lay on the table the modified amendment of the Senator from New Mexico, in the nature of a substitute for Senate Resolution 5.” Johnson’s tabling motion carried by a vote of 60 to 36.64 Subsequently, on January 12, the Senate adopted S. Res. 5, as introduced, by a 72 to 22 vote. To reiterate: S. Res. 5 made two changes to Rule XXII and one to Senate Rule V: (1) two-thirds of the Senators present and voting could invoke cloture (previously, cloture required a vote of two-thirds of the entire membership); (2) cloture could be applied to motions to proceed to consider a change in Senate rules; heretofore, this was not a feature of Rule XXII; and (3) a provision was added to Rule V affirming that Senate rules continue from one Congress to the next, “unless they are changed as provided in these rules.” The 1950s debate on “opening day” rules changes featured issues that were also prominent in the 1960s and 1970s. The reformers of 1953, 1957, and 1959 encountered little difficulty in having the Senate debate their proposals to change Senate rules. However, bringing the reformer’s ideas to an affirmative vote proved to be a procedural and political road too far. This reality also underscores the difficulty of amending Senate rules on opening day by majority vote. On the other hand, history also indicates that, given the right set of political circumstances— determination, patience, adroit leadership, favorable rulings from the Chair, and a committed majority willing to shatter customary ways of proceeding—the unlikely or seemingly unattainable can become a real possibility. Cloture Reform Attempts: 1961 To 1975 During the 1960s and 1970s, the reformers’ strategic purpose shifted from the broad goal of rewriting the Senate’s rulebook to a specific focus on amending Rule XXII. All their attempts at revision failed during this era except for the 1975 change. The political context for these initiatives, especially during the 1960s, was shaped to a large extent by the civil rights struggle of African Americans. Later, with enactment of civil rights legislation, many Senators who previously opposed attempts to curb extended debate began to vote for cloture; they realized that prolonged debate could be employed to achieve their policy/political objectives. Noteworthy is that the filibuster itself was undergoing change. In the decade from 1961 through 1971, there were more cloture votes (40) than in the period from 1917—the year the cloture rule was adopted—through 1971. Double and even triple digit cloture votes became the norm in 61 Ibid., January 8, 1959, p. 117. Ibid., p. 119. 63 Ibid., p. 127. 64 Ibid., January 9, 1959, pp. 207-208. 62 Congressional Research Service 18 Amending Senate Rules at the Start of a New Congress subsequent Congresses.65 Significantly, for the first time ever, cloture was invoked to end a southern-led filibuster against the landmark Civil Rights Act of 1964. Gradually, the public’s strong association of filibusters with southern Senators against civil rights bills waned as filibusters became a procedural tool for Senators of all ideological stripes. In 1970, for example, liberal Democratic Senator William Proxmire of Wisconsin and his supporters talked to death a bill to fund development of a supersonic transport plane. Along with the usual arguments against changing Rule XXII (protection of minority rights and small state interests, for example), there were others that emerged during this era. For example, heightened concern among many Members with the growth of executive power, particularly in the defense and foreign policy arenas, bolstered support for extended debate as a means to challenge presidential initiatives and protect congressional power. The willingness of Members to filibuster also increased during this period for other reasons, such as the decline of informal folkways (for example, newcomers should be seen and not heard) and the election of assertive Senators who were not averse to using chamber rules to achieve their personal, policy, and political goals.66 Thus, efforts continued during the 1961-1975 period (and beyond, of course) to revise the Senate’s cloture procedure. For each year discussed—1961, 1963, 1965, and so on— this section will highlight the political context and the major parliamentary/procedural issues that influenced the eventual outcome. 87th Congress (1961) Overview The issue of civil rights was not much in evidence during the 1961 effort to revamp Rule XXII. However, everyone was mindful that the enactment of the Civil Rights Act of 1960 required enormous effort on the part of proponents to overcome the dilatory tactics of the opposition. For example, the Senate debate began February 15, 1960, and ended April 8 with around-the-clock sessions from February 29 through March 8. Both the Democratic and Republican presidential platforms of 1960 endorsed filibuster reform. The Democratic platform urged “that action be taken at the beginning of the 87th Congress to improve congressional procedures so that majority rule prevails and decisions can be made after reasonable debate without being blocked by a minority in either house.” The GOP platform supported “efforts to change present rule XXII of the Senate.” A bipartisan group of Senators sought to amend Rule XXII rather than try to rewrite de novo the rules of the 87th Senate. Concern about opening “Pandora’s box”—lengthy argumentation over every conceivable rules change—led the reformers to opt for a narrower reform approach. There were two major proposals to change the cloture rule. Senator Anderson and his GOP sponsor, Thruston Morton of Kentucky, wanted to permit cloture by three-fifths of those present and voting. Majority Leader Mike Mansfield of Montana backed this idea.67 Senator Hubert 65 The number of cloture votes reached triple digits (112) in the 110th Congress (2007-2009). For a review of Senate cloture votes, see Senate Cloture Rule (U.S. Govt. Print. Off., 2011), pp. 113-158. The Senate Committee on Rules and Administration is responsible for preparing this document on a periodic basis. 66 Barbara Sinclair, The Transformation of the U.S. Senate (Baltimore, MD: The Johns Hopkins University Press, 1989). 67 Congressional Record, vol. 107, January 10, 1961), p. 520. Senator Mansfield stated: “I am persuaded that ... a change [in Rule XXII] sought in the proposal of the distinguished Senator from New Mexico [Mr. Anderson] is desirable.” Congressional Research Service 19 Amending Senate Rules at the Start of a New Congress Humphrey and Republican Whip Thomas Kuchel of California recommended that after 15 calendar days (exclusive of Sundays and legal holidays) of debate, the presiding officer would submit to the Senate the question of whether the prolonged discussion should be brought to a close. The vote on this question would be decided by a majority of the Senators chosen and sworn. With the November 1960 election of John F. Kennedy as President, there were many Senate Democrats who were not keen on starting the 87th Congress with a party-splitting debate over revising the cloture rule. A fractured Senate Democratic Party could jeopardize the new President’s “New Frontier” program. Contrarily, reform-minded lawmakers argued the importance of revising Senate rules at the start of the new Congress to protect JFK’s program from obstructionism. However, after five days of debate, the majority leader offered a motion to refer the proposed cloture proposals (and other Senate reform resolutions) to the Committee on Rules and Administration, which Mansfield chaired. Upset with Mansfield’s motion, many reformers voted against the January 11 referral motion, which prevailed by a 50 to 46 vote.68 This vote damaged reformers’ prospect for change. Why? Outgoing Vice President Nixon was still presiding but only until the President Kennedy and Vice President Lyndon Johnson took office on January 20. The reformers knew that Johnson, unlike Nixon, was not sympathetic to their cause. Senator Mansfield did promise, however, that he would bring the Anderson three-fifths cloture reform proposal (S. Res. 4) to the floor in September. The majority leader delivered on his promise. Still, there were complaints from various reformers that it was not a propitious time so late in the session to bring a controversial rules change to the floor when Members were anxious to depart the capital. Moreover, the Senate would operate under the existing features of Rule XXII requiring a two-thirds vote of the Members voting, a quorum being present, to end prolonged debate. On Saturday, September 16, the majority leader moved to proceed to the consideration of S. Res. 4.69 Immediately, Senator Mansfield and Republican Leader Everett McKinley Dirksen of Illinois submitted a cloture motion signed by 21 Senators to bring debate on the motion to proceed to the resolution to a close. On Tuesday, September 19, the Senate failed to invoke cloture (37 yeas to 43 nays). The Senate then voted (47 to 35), on a request by the majority leader, to table his motion to consider S. Res. 4.70 The tabling motion ended the effort to amend Rule XXII. Calling Up the Anderson/Morton and Humphrey/Kuchel Resolutions The bipartisan Senate leadership supported the goal of the four reformers to bring their resolutions before the Senate.71 On opening day (January 3), soon after the traditional proceedings (swearing in of newly elected Senators, adopting resolutions notifying the President and the House that the Senate is ready to proceed to business, and so on), Senator Anderson stated that “in accordance with article I, section 5, of the Constitution, which declares that each House may determine the rules of its proceedings, on behalf of myself and the [GOP] Senator from Kentucky [Mr. Morton], I send to the desk a resolution [S. Res. 4] and ask that it be read.” After the 68 Ibid., January 11, 1961, p. 625. Ibid., September 16, 1961, p. 19838. 70 Ibid., September 19, 1961, pp. 20146-20148. 71 Other Senators also advocated institutional reforms, such as Democratic Senator Joseph Clark of Pennsylvania. He recommended such changes as the adoption of a previous question motion (emulating the House’s procedure), a germaneness requirement for debate, and a committee “bill of rights” that would allow, for example, a majority of panel Members to convene meetings and take up legislation. 69 Congressional Research Service 20 Amending Senate Rules at the Start of a New Congress resolution was read, Senator Anderson quickly asked unanimous consent for the immediate consideration of S. Res. 4, reducing cloture from two-thirds to three-fifths of those voting, a quorum being present. Senator Russell of Georgia objected. Citing Senate Rule V requiring one day’s notice in writing of proposals to amend Senate rules, Senator Anderson submitted his “Notice of Motion to Amend Rule XXII.” The same procedure occurred with the Humphrey/Kuchel recommendation (S. Res. 5), providing for majority cloture after 15 session days of debate. Senator Russell also objected to S. Res. 5’s immediate consideration. Senator Russell emphasized “that there is no question that it would be necessary for the Senate to adjourn to ever get the Anderson motion before the Senate, because the rule requires [a layover of] 1 legislative day.”72 The Vice President added: “The [Anderson] resolution [S. Res. 4] will lie over [upon objection], under the rule.”73 To comply with Senate Rule V, Majority Leader Mansfield adjourned the chamber so that the reform resolutions would be placed on the section of the Senate’s Calendar of Business entitled “Resolutions and Motions Over, Under the Rule.” The presiding officer lays them before the Senate on the next legislative day during the so-called morning hour, the first two hours of a session day following an adjournment of the Senate. Under Senate Rule VII, the resolutions are laid before the Senate only after all other routine morning business, such as the introduction of bills and resolutions, had been conducted. Morning business, in brief, is a component of the morning hour. If consideration of S. Res. 4 was not concluded within the two-hour period, it would be returned to the General Orders calendar unless the Senate agreed to a unanimous consent request to continue debate or a Member offered a debatable motion to proceed to consider S. Res. 4.74 With the adjournment of the Senate on January 3, S. Res. 4 met the one-day advance notice requirements of Senate Rule V, having lain over one legislative day between the time of its introduction and its presentment to the Senate the next legislative day (January 4). As Vice President Nixon, who was presiding, stated on January 4: “The Chair lays [Senate Resolution 4] before the Senate, which will be read for the information of the Senate.” Subsequently, Senators discussed a variety of issues until Vice President Nixon declared: “The hour of 2 o’clock has arrived and [the morning hour] is concluded; and the resolution [S. Res. 4] goes to the calendar, under the rule.”75 (The Senate convened at noon on January 4). Senator Javits then asked the Chair whether the Senate was proceeding under the Constitution. Specifically he asked whether consideration of new chamber rules by majority vote was in order notwithstanding inherited procedures “that inhibit that process?” Senator Javits further inquired: “Is it not then proper that the 2 o’clock rule [the two-hour morning period] shall not apply in this instance to this situation?” The Vice President replied: “Under the usual rule and the precedents of the Senate, a resolution of this type is, at the conclusion of the morning hour, placed upon the calendar, subject to being called up at a later time. However, it would be proper to request 72 Congressional Record, January 3, 1961, p. 13. Ibid., p. 16. See footnote 53 for a detailed discussion of the “over, under the rule” procedure. 74 GOP leader Dirksen raised a parliamentary inquiry worth noting. He asked the Vice President: “Two independent motions have been filed under [Senate Rule V]. Do they enjoy a status of priority, by virtue of the fact that the Anderson motion was filed first; or is it a question of recognition when [each resolution is] called up?” The Vice President responded: “Priority generally is determined by whichever Senator gets recognition when the motions are called up.” Senator Dirksen further asked of the Vice President: “So the fact that one motion was offered prior to another does not give it any preferred status when the matter is finally considered.” The response: “It does not.” The Vice President did note that the majority leader receives priority of recognition. 75 Congressional Record, January 4, 1961, p. 82. 73 Congressional Research Service 21 Amending Senate Rules at the Start of a New Congress unanimous consent to proceed without regard to that rule.”76 Senator Humphrey offered a motion to proceed to the consideration of S. Res. 4. Debate continued that day on filibuster reform, along with discussion of other matters. When the day’s debate was largely concluded, Majority Leader Mansfield stated that there would be the usual morning hour on January 5. He asked and eventually received unanimous consent that “morning hour” would occur on January 5 despite the fact that he recessed rather than adjourned the Senate. Senator Javits wanted to know if “such an arrangement” would “effect any change in the pending business, which is the motion to take up these resolutions?” Senator Mansfield explained that an adjournment would return the reform resolutions to the legislative calendar. “But by taking a recess,” he said, “they will remain, in their present form, in order in the morning hour.” Vice President Nixon responded: “That is correct.”77 What Constitutes “Opening Day”? “Opening day” is a flexible and imprecise term. Consider these three points. First, it is the calendar day on which the new Congress officially convenes following a biennial election. Second, opening day in the view of various reform advocates is a timely and favorable period under the Constitution for amending Senate rules by majority vote. Third, the Senate can remain in the same legislative—or opening—day for many calendar days if the majority leader successfully moves after each daily session to recess rather than moving to adjourn the Senate. In short, opening day could extend over many days, weeks, months, or the entire two-year life of a Congress. Understandably, reform Senator Kuchel posed this question to Vice President Nixon: “Would the Vice President rule that if we go over to a new legislative day, we will still have ‘the opening of a new Congress’ before us, so that we can apply our rights under the Constitution?” Nixon responded as follows: “It is the opinion of the Chair that so long as no substantive business is undertaken by the Senate the opening of a new Congress still is in effect, so that the Senate would be able to adopt its rules under the majority procedure which the Chair has described.”78 Nixon also made clear that it would take unanimous consent to preserve this situation if other business intervened. For example, Majority Leader Mansfield proposed to call up a privileged resolution (H. Con. Res. 1) creating a joint committee to make the necessary arrangements for the inauguration of the President-elect and Vice President-elect. Asked by Senate reformers if such an action would change the procedural situation, Vice President Nixon said: [I]t would change the situation in regard to the rules of the Senate, unless there is a unanimous consent agreement entered into that it shall not do so. The present occupant of the Chair must in frankness inform the Senate that for the first time in his 6 years of service he is making a ruling from the Chair which is not entirely in accord with the advice of the Parliamentarian, who is inclined to believe that because this resolution is in the nature of a privileged resolution … it might not have that effect. However, the occupant of the Chair does not dare to make that ruling. The ruling of the occupant of the Chair, unless it is overruled by the Senate, is that, in the absence of an agreement, this would change the situation.79 76 Ibid. Ibid., p. 92. 78 Congressional Record, January 4, 1961, p. 74. 79 Ibid. 77 Congressional Research Service 22 Amending Senate Rules at the Start of a New Congress The outcome: the majority leader withdrew the resolution. Clearly, the Vice President’s ruling was important to the reformers. They did not want the intervention of “business”80 to mean that they had inadvertently acquiesced in all the Senate’s rules from the previous Congress. If that occurred, reform Senators would be bound by Rule XXII’s supermajority requirement to end debate on proposals to amend new Senate rules by majority vote. Thus, various lawmakers periodically asked the presiding officer whether certain actions of the Senate would constitute substantive business. To reemphasize: the reformers did not want opponents to claim that their failure to raise any objections to chamber proceedings meant that they had consented to having the rules of the 86th Senate automatically carry over to the 87th Senate. (In recent years, it has become common for the Senate to operate on the opening day of a new Congress pursuant to a unanimous consent agreement obtained in the previous Congress.) Continuing Body Senator Richard Russell put this direct question to Vice President Nixon: “Does the Chair hold that the provision [stating that Senate rules continue from one Congress to the next] is unconstitutional?” Nixon said: “The Chair does.”81 However, the Vice President went on to explain at some length his view of whether the Senate is a continuing body. He said: The Chair in his [1957] advisory opinion did hold that the Senate was a continuing body and that the rules of the Senate did continue except for any rule adopted by the Senate which, in the opinion of the Chair, would inhibit the constitutional right of a majority of the Members of the Senate to change its rules or adopt new rules at the beginning of a new session of the Senate. This was the basis of the Chair’s advisory opinion. The Chair’s opinion was not that it was not a continuing body and that it began with no rules at all at the beginning of a new Congress. It is the opinion of the Chair, that, at the beginning of each new session of Congress, the Senate does operate under and begins its business with the rules adopted in previous sessions of the Senate; but the Chair holds that any provisions of the rules previously adopted which would restrict what the Chair considers to be the constitutional right of the majority of the Members of the Senate to change Senate rules, or to adopt new rules, would not be applicable.82 Senator Russell observed that it was “most unusual” for the “Vice President, representing the Executive, to select one rule of the Senate and hold it unconstitutional and to hold the other rules constitutional.”83 A question by Senator Humphrey prompted a brief discussion of the previous question motion (a non-debatable way to end debate, commonly used in the House). Humphrey asked the Vice President how might debate be ended on a reform resolution, “by a motion to table or the previous question?” Nixon responded: “That would be the Chair’s opinion.” To make sure he heard the Vice President correctly, Senator Russell asked if the “previous question could be applied on something brought up” under Senate rules? And Nixon said: “That would be the Chair’s ruling, because, in the Chair’s opinion, the right of a majority of the Members of the 80 Senate precedents define what constitutes substantive business, such as the offering of an amendment, adoption of a motion, or the Chair’s ruling on a point of order. See Floyd M. Riddick and Alan S. Frumin, Senate Procedure: Precedents and Practices (Washington: U.S. Govt. Print. Off., 1992), pp. 1042-1046. Precedents also indicate what does not constitute business. 81 Congressional Record, January 3, 1961, p. 11. See Aaron-Andrew P. Bruhl, “Burying the ‘Continuing Body” Theory of the Senate,” Iowa Law Review, vol. 95, September 2010, pp. 1401-1465. 82 Ibid. 83 Ibid., p. 12. Congressional Research Service 23 Amending Senate Rules at the Start of a New Congress Senate to adopt its rules at the beginning of a session would include the right to bring the matter to a vote by moving the previous question.” Perhaps taken aback by the Chair’s position, Senator Russell asked if the “previous question ruling [would] be under Roberts Rules of Order?” The Chair replied that Roberts Rules “would be applicable to the extent they might apply, but also having in mind the previous procedures of the Senate.” Senator Russell then informed the Chair that Roberts Rules of Order “provide for a two-thirds vote in moving the previous question.”84 The Vice President made it clear, however, that he would couple Roberts Rules of Order with Jefferson’s Manual, which contains a section (XXXIV) on the previous question motion along with a footnote that emphasizes that its use in modern times is to end debate. According to the Vice President, a majority of Senators would have the right at the start of a new Congress to end debate and “bring the matter [rule changes] to a vote by moving the previous question.”85 Throughout the several days of debate, proponents and opponents shared divergent opinions on the continuing body doctrine. Both sides also acknowledged that the Senate has both continuous and discontinuous features. For example, Senator Russell quoted part of the first paragraph of Senate Rule XXV (naming the standing committees and identifying their jurisdiction), which states that the panels “shall continue and have the power to act until their successors are appointed.” A reform advocate, Senator Joseph Clark, cited the exact same rule only highlighting different language therein: “The following standing committees shall be appointed at the commencement of each Congress.” Such disagreements between and among Senators reflected a change in the reformers’ strategy. In the 1950s, reformers wanted to amend Rule XXII to reduce the potency of the filibuster by the procedural artifice of adopting a new Senate rulebook every two years. In 1961 (and thereafter), right from the outset, it was clear that the reformers’ principal goal was limited to adoption of a new filibuster rule by majority vote at the start of a new Congress. To make their case, the reformers relied on the rulemaking authority granted the Senate by the Constitution; the advisory opinions of Vice President Nixon in 1957 and 1959; and the existing rules of the Senate, except those that, in their judgment, foiled the majority’s will. On the latter point, the Vice President’s position that all Senate rules applied except those that the Chair believed were unconstitutional did not, as noted earlier, sit well with Senator Russell. He exclaimed: In my judgment, either all of the rules go over or none of the rules go over. Either, under the exercise of the rule-making power as provided in the Constitution, the Senate makes its rules and, as a continuing body, the rules apply until changed in the manner described therein, or else in the beginning of each Congress the Senate should adopt all new rules, as is done in the House of Representatives. 86 In response, Senator Clark noted that, if the Vice President was unable to explain adequately his rationale to Senator Russell, “I suppose this is one of those little things we had better agree to disagree on.”87 84 Ibid., January 3, 1961, p. 12. Ibid. 86 Ibid., January 9, 1961, p. 391. 87 Ibid, p. 392. In another context, Senator Kuchel stated that “the continuing nature of the Senate is irrelevant if its rules conflict with the Constitution. To assume that the rules carry over because two-thirds of the Senate does is to assume that the two-thirds carryover would always carry a majority in favor of the existing rules.” Ibid., January 4, 1961, p. 85. 85 Congressional Research Service 24 Amending Senate Rules at the Start of a New Congress Procedural Strategy During these proceedings, reform Senator Douglas outlined a procedural pathway to change Senate rules at the opening of a new Congress.88 Worth underscoring is a key assumption of the reformers: they believed they had the votes—at least a majority or close to it—and the support of the Chair, Vice President Nixon, to accomplish their objective. They also believed, correctly, that the new majority leader, Senator Mike Mansfield of Montana, would not act to frustrate the reformers’ opening day parliamentary intentions. Their procedural plan included several of the following key features:        88 At the beginning of a new Congress, a Member of the reform group would seek recognition from the Chair. Upon receiving recognition, he would say: “Mr. President, on behalf of the following Senators and myself, and in accordance with Article I, Section 5 of the Constitution and the advisory rulings of the Chair at the opening of the 85th and 86th Congresses, I send to the desk a resolution and I ask that the Clerk read it.” After the Clerk read the resolution changing Rule XXII, the Senator would ask unanimous consent for its immediate consideration. If there was no objection, the resolution would be on the floor for debate. Most likely, there would be an objection. Senate rules require one legislative day’s notice in writing to amend or modify a Senate rule. The Senator who offered the motion would then address the Chair and send to the desk a motion in writing to amend a Senate rule and ask that the written notice be read. [Recall that the reformers’ prime focus was on Rule XXII; they saw no contradiction in observing other Senate rules. They cited the earlier Nixon advisory opinions that all Senate rules carried over, except those that have the practical effect of denying a majority its constitutional right to determine its rules.] Presumably, the Senate would adjourn, rather than recess, so the reformer’s resolutions would comply with the one legislative day notice rule. [The Senate majority leader, as noted previously, determines whether the Senate recesses or adjourns at the end of a day.] Reform Senators would need to object to any attempt to transact substantive business or, alternatively, seek unanimous consent to provide that any such business would not affect the status of “opening day” proceedings. The purpose would be to ensure that the reformers do not waive any rights to amend Senate rules on opening day by majority vote. “Opening day” could extend for an indefinite period until it was terminated by a Senate adjournment. Opponents could (a) defeat the motion to call up the resolution; (b) move to refer the resolution to the Committee on Rules and Administration; (c) table the reformers’ resolution, reaffirming the continuity of Senate rules; or (d) raise a constitutional (or other) point of order against the resolution. The constitutional challenge would likely come if a filibuster is launched against either the motion to call up the resolution or on the resolution itself. After a reasonable period of debate, a reform Senator would move to cut off debate, perhaps even by moving the previous question. A constitutional point of order against such a motion would likely be made by a Member of the opposition. Ibid., January 5, 1961, pp. 213-237. Congressional Research Service 25 Amending Senate Rules at the Start of a New Congress Under well-established precedents, the Chair would submit such a point of order to the Senate. It is at this stage where things would become problematic for the reformers because they confront again the aforementioned “Catch 22” situation. Unless they had 67 votes, the reformers would be unable to invoke cloture to bring an end to prolonged discussion on the debatable constitutional point of order. Long-standing Senate precedents obligate the Chair to submit constitutional points of order to the Senate for its consideration. To be sure, the reformers would expect the Chair to make favorable rulings—even if Senate precedents were broken—that facilitated their goal of changing Rule XXII (or any other Senate rule for that matter) by majority vote. Fundamentally, this meant a favorable ruling that supported the implementation of what has come to be called the constitutional option. For example, if the Chair ruled on his own authority in favor of the constitutional option— specifically, that debate would end by majority vote on a motion to proceed to the reform resolution, ignoring long-standing precedents that constitutional points of order are to be submitted to and decided by the Senate—an appeal of that controversial decision would surely be made by an opponent of change. The appeal is debatable, which would require cloture to end, but the Chair might immediately recognize a reformer (perhaps the majority leader) to table the appeal. If the tabling motion was successful, the Senate would have established a precedent that arguably would terminate filibusters by majority vote on rule changes proposed at the start of a new Congress. Accordingly, Senate reformers could close extended debate by majority vote on both the motion to call up their reform resolution and on the resolution itself. This parliamentary scenario highlights why favorable rulings from the Chair are among the key elements that sometimes could advantage the “opening day” objectives of Senate reformers. By contrast, if the Chair submitted the debatable constitutional point of order to the Senate—as precedents and practices dictate—it would be unlikely that the reformers could muster the 67 votes required to invoke cloture to end the filibuster. Ending Debate On September 15, 27 Democratic Senators and 10 GOP Senators each issued nearly identical press releases. Each release lamented the timing of bringing S. Res. 4 to the floor when “adjournment fever” was high with Senators anxious to return home or to fulfill other commitments. Majority Leader Mansfield responded by saying that the “leadership is not permitted the luxury of considering rule XXII in a vacuum.”89 Several measures required consideration, Mansfield said, before the scheduled end of the first session (September 27). Besides the issue of timing, Senate reformers were unhappy because an unsupportive Vice President Lyndon Johnson was presiding—so favorable rulings from the Chair aiding the reformers could not be expected—and the lapse of the pretense of “opening day” meant, as Senator Javits pointed out, that “a proposed change in rule XXII can be closed only by the votes of two-thirds of the Members present and voting.”90 On Saturday, September 16, Majority Leader Mansfield moved that the Senate proceed to the consideration of S. Res. 4 (providing for cloture by three-fifths of those voting, a quorum being present), which the Committee on Rules and Administration reported without recommendation. 89 90 Ibid., September 16, 1961, p. 19829. The Democratic and GOP press releases can be found on p. 19830. Ibid., p. 19831. Congressional Research Service 26 Amending Senate Rules at the Start of a New Congress (Recall that the Senate on January 10 had referred the resolution to that panel.) Senator Mansfield explained to Senators why S. Res. 4 was not favorably reported. He said: In my opinion, Senate Resolution 4 could not have been reported favorably by the Rules Committee because the votes simply were not there for a favorable report. The Rules Committee, despite what I think was the inherent opposition of many of its members, nevertheless, in the interest of helping the leadership to keep its word, subordinated personal feelings on this most important matter and allowed the resolution to be reported without recommendation.91 With the motion to proceed to S. Res. 4 made, Senator Mansfield and Minority Leader Dirksen filed cloture to end debate on the measure. Senator Mansfield also received assurances from the Chair that, given the pendency of the cloture motion, “the Senate cannot consider any other motion or measure except conference reports and other privileged matters, unless unanimous consent is obtained.”92 On September 19, the Senate voted (37 yeas, 43 nays) not to invoke cloture on the motion to proceed. Mansfield then moved immediately to table the motion to consider S. Res. 4, which the Senate agreed to by a 47 to 35 vote. Senator Mansfield’s successful tabling motion ended filibuster reform in the 87th Congress. 88th Congress (1963) Political Context The constitutional option once more came into play at the start of the 88th Congress. A bipartisan group of change-oriented lawmakers tried again unsuccessfully to amend Rule XXII to permit three-fifths of the Senators voting, a quorum being present, to invoke cloture. Senator Anderson was the prime sponsor of this resolution (S. Res. 9), with Senators Humphrey and Kuchel planning to propose a majority cloture resolution (S. Res. 10) as a complete substitute for S. Res. 9. Southern Senators, along with their allies in the chamber, conducted a 24-day filibuster that blocked the liberals’ hope for change. Part of the reformers’ strategy was to try to persuade Vice President Johnson to rule that, under the Constitution, dilatory debate on the proposed rules change could be cut off by majority vote. Specifically, the reformist Senators devised an optimistic strategy to change Rule XXII. Among its basic features were the following:93     During the expected filibuster against revising Rule XXII, Senator Anderson would move to end further debate on the pending motion by majority vote. The Vice President would rule that the motion was in order because, under the Constitution, debate on a proposed rules change at the start of a new Congress could be terminated by majority vote. No doubt a Senator, perhaps from the South, would appeal the ruling of the Vice President. A reform Senator would then offer a nondebatable motion to table the appeal, which would be agreed to by majority vote. This vote would uphold the Chair’s 91 Ibid. Ibid., p. 19838. 93 “Senate Cloture Rule,” Congressional Quarterly Almanac, 1963, vol. xix (Washington, D.C.: Congressional Quarterly Inc., 1963), p. 375. 92 Congressional Research Service 27 Amending Senate Rules at the Start of a New Congress   ruling and create a new Senate precedent that would allow a majority at the beginning of a new Congress to cut off debate on both the motion to proceed to a rules change and on the rules revision itself. With the precedent in place, a Senate majority would vote to end debate on the pending motion to proceed and then on the rules change. Further filibuster attempts by opponents of reforming Rule XXII could be ended under the new majority vote precedent. To focus the Senate’s attention on the rules debate and induce the membership to reach a decision on the matter, Majority Leader Mansfield served notice “that vacancies on the Democratic policy and steering committee will not be filled, nor assignments to the standing committees made, until we have resolved the rules controversies. Further, I shall object to any committee meeting during sessions of the Senate, because it seems to be quite unfair to transact business, whether legislative or executive, in committees to which no new Member has been assigned.”94 Later in the debate, and [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR44395. Public record. Not legal advice.