What the Senate’s past tells us about a future nuclear option

(Editor's Note: This piece first appeared at legbranch.com on March 13, 2018.)

“It is difficult to make predictions, particularly about the future.”

We would do well today to heed Mark Twain’s version of the well-known proverb regarding our inability to say with certainty what tomorrow will bring. Politics, after all, is a complex and dynamic process. Recent events alone should inject a dose of humility in our assumptions about what the future holds.

But in the Senate, members appear more certain than ever that they can see the future.

Take, recent comments by Ted Cruz (R-Texas) regarding the filibuster. He confidently asserts that its days are numbered. “I think if the Democrats ever regain the majority, they’ll end legislative filibuster.” Moreover, Cruz believes that it is inevitable based on his understanding of where Democrats are on the question today. “That’s where their conference is. And it doesn’t make any sense for it be a one-way ratchet — for us to have our hands tied and for them to be able to pass with a simple majority.”

Cruz’s comments reflect the certainty with which many of his Republican colleagues know that Democrats will eliminate the filibuster when they take over the majority at some point in the future. Such confidence is leading many of them to push for abolishing it first.

But senators cannot assert with any certainty what Democrats will do in the future based solely on the fact that they did so in the past. Nothing is inevitable.

Admittedly, the manner in which a party behaved in the past sheds some light on the way in which its members are likely to conduct themselves in the future. Yet the historical record suggests that future action is not determined solely, or even primarily, by past behavior.

Take, for example, just three instances in which the Senate explicitly violated its Standing Rules by creating a new precedent via the nuclear option. Yet rather than using the nuclear option again in the future, the Senate instead reversed the precedent established in each case. The fact that successive majorities did not go nuclear again and again to gut the Standing Rules in each case suggests that additional considerations should be taken into account before making predictions about what will happen to the filibuster whenever Democrats regain the majority in the Senate.

Rule XXII (1975)

The Senate created a new precedent in 1975 at the beginning of the 94th Congress that restricted the filibuster in violation of Rule XXII. Specifically, Senator James Pearson (R-Kansas) attempted to amend Rule XXII to reduce the threshold required to invoke cloture. Yet because the rule clearly required a two-thirds vote to end debate on such a proposal, Pearson’s effort was dependent on a ruling from the presiding officer (or a vote of the Senate) that a simple-majority could invoke cloture on a proposal to amend the Senate’s Standing Rules at the beginning of a new Congress (i.e. the nuclear option). Majority Leader Mike Mansfield (D-Montana) raised a point of order against Pearson’s motion on the grounds that it violated Rule XXII. The presiding officer declined to rule on the question and instead submitted it to the full Senate to be decided. A simple-majority of the Senate subsequently tabled the Mansfield point of order on February 20 by a vote of 51 to 42, thereby endorsing the argument that a simple-majority could end debate on a proposal to amend the Senate’s rules at the beginning of a new Congress.

However, the Senate moved to reconsider the vote by which it tabled the Mansfield point of order on March 3. And on the following day, the Senate voted to sustain Mansfield’s point of order by a vote of 53 to 43, thereby reversing the earlier precedent. This action brought Senate practice back into compliance with Rule XXII.

Rule XVI (1999)

Rule XVI of the Standing Rules prohibits legislating on an appropriations bill. But the disposition of an amendment offered by Senator Kay Bailey Hutchison (R-Texas) to the Emergency Supplemental Appropriations and Rescissions for the Department of Defense to Preserve and Enhance Military Readiness Act of 1995 (Public Law 104-6) during the 104th Congress established a precedent that superseded this prohibition. Specifically, the Hutchison amendment changed federal law regarding endangered species. Senator Harry Reid (D-Nevada) raised a point of order that the amendment violated Rule XVI, which the presiding officer subsequently sustained. Senator Hutchison then appealed this ruling to the full Senate, which overturned the ruling of the Chair by a vote of 57 to 42. The Hutchison amendment was subsequently adopted by voice vote. This action created a new precedent that permitted legislating on an appropriations bill, despite the fact that the decision of the presiding officer was correct technically and the Hutchison amendment was in direct violation of Rule XVI.

Yet as in the previous example, the Senate subsequently reversed the precedent, thereby bringing Senate practice back into compliance with Rule XVI. In the 106th Congress, Majority Leader Trent Lott (R-Mississippi) introduced a standing order as a simple resolution (S. Res. 160) that would have the effect of reversing the precedent established by the Hutchison amendment. The Senate passed S. Res. 160 on July 22, 1999 by a vote of 53 to 45.

Rule XXVIII (2000)

Rule XXVIII of the Standing Rules bars senators serving on joint House-Senate conference committees from airdropping provisions into the final version of legislation. In other words, matter not included in either the House or Senate legislation is not eligible to be included in the compromise agreement that is voted on in both chambers before being sent to the president to be signed into law.

Yet as with Rule XXII in 1975 and Rule XVI in 1999, the Senate created a new precedent (the “FedEx precedent”) that explicitly violated this provision of Rule XXVIII during the 104th Congress. During consideration of the Conference Report for the Federal Aviation Reauthorization Act of 1996 (Public Law 104-264), Majority Leader Lott raised a point of order that the Conference Committee exceeded the scope of conference by including provisions relating to Federal Express, thereby violating Rule XXVIII. The presiding officer subsequently sustained the point of order. In response, Lott appealed the ruling and the Senate overruled the presiding officer by a vote of 39 to 56. Consequently, the FedEx precedent superseded the provisions of Rule XXVIII prohibiting extraneous matter from being included in conference reports.

The Senate restored Rule XXVIII during the 106th Congress. Specifically, the Department of Commerce and Related Agencies Appropriations Act of 2001 (HR 5548) included the following provision reversing the precedent established during the 104th Congress:

Sec. 801. Beginning on the first day of the 107th Congress, the Presiding Officer of the Senate shall apply all of the precedents of the Senate under Rule XXVIII in effect at the conclusion of the 103rd Congress.

This provision was eventually included in the Conference Report to accompany the District of Columbia Appropriations Act for fiscal year 2001 (Public Law 106-553) that was signed into law on December 21, 2000. Additionally, an identical provision was included in the Consolidated Appropriations Act of 2001 (Public Law 106-554), which passed the Senate on December 15, 2000 and was also signed into law by the president on December 21. These actions brought Senate practice back into compliance with the Rule XXVIII.

Additional Considerations

As these cases suggest, additional considerations must be taken into account when speculating on the likely parliamentary behavior of future Senate majorities.

First, Senate majorities are fluid. That is, they change over time. Intra-party dynamics may shift with the election of new members whose views on the filibuster differ from their more senior colleagues. And neither is the position of incumbent members on institutional questions like the filibuster static. It too may change with time in response to experiences like serving in the minority.

Second, the broader political environment will inevitably shape the views of the individual senators who will compose future Senate majorities. Claims that Democrats will inevitably move to eliminate the filibuster in the future must take into account additional considerations such as the geographic distribution of majority-held Senate seats (e.g. red-state Democrats vs. blue-state Democrats), presidential approval and behavior, public opinion on the filibuster, and overall congressional productivity.

For example, Democratic senators representing red states may be less likely to support the nuclear option in the future to empower a progressive president of their own party if doing so makes it more likely that policies opposed by their constituents will become law. Presidential popularity may also impact the ability of party leaders to corral the votes needed to go nuclear.

In addition, public opinion on the filibuster and an imperial presidency may deter individual senators from supporting the nuclear option if doing so is cast in terms of enacting the president’s agenda over all objections.

Finally, more general levels of congressional productivity may undermine arguments that obstruction is excessive or that presidents have no choice but to implement their agenda via unilateral executive action in the absence of efforts to eliminate the filibuster.

To be fair, acknowledging the limits of our ability to accurately predict the future does little to assuage Republicans’ frustration with their inability to legislate in the present. However, the only alternative to eliminating the filibuster is not acquiescing in the status quo.

The Senate’s rules and practices already give the majority a way to stop endless delays of the legislative process. And using those rules will be of greater benefit to Republicans, as well as the institution more broadly, than changing them via the destructive nuclear option. This is because enforcing the Senate’s current rules and practices makes obstruction costlier for members trying to slow down or stop the majority’s agenda.

By increasing the price members pay to obstruct successfully the Senate’s business, those members will be likely to be more selective.