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Category: General Ramblings Page 2 of 15

The Senate’s “Nuclear Option”

The last decade has seen a significant alteration in Senate tradition and procedure – a change in the cloture process to enable a simple majority to end debate (and thereby force a vote) on all nominations before the Senate. However, Senate Rule XXII, which provides for cloture, has not been formally amended – instead, this has come about through a remarkable maneuver to shift Senate precedent, which has become colloquially known as “nuclear option.”

To understand the “nuclear option” and the process by which it was undertaken, one must be familiar with the concept of Senate rules and procedure of precedent. Under Article One, Section 5 of the United States Constitution, the Senate is empowered to determine the rules of its procedure and proceedings. These rules may be formally changed or amended at the beginning of a new Congress, or “altered” through the establishment of new precedent – by which a majority of Senators decide, through their vote, to overturn a ruling of the Senate chair regarding what had before been established procedure. A precedent, once set, supersedes the rule it affects. As the Senate is a “continuing body,” rules and precedents stand through successive Congresses until altered.

One of the Senate’s rules, Senate Rule XXII, provides for a process – “cloture” – by which the Senate can vote to limit further consideration of a pending question and proceed to a vote. Why the “need” for cloture? Since the early 19th century, the Senate has traditionally not restricted the total time allowed for Senators to debate. Senators throughout the 19th century began taking advantage of this by giving lengthy speeches so as to prevent particular measures they opposed from being voted on – a process called “filibustering.” Senate Rule XXII, originally adopted in 1917 as a procedure only applicable to legislation and requiring a two-thirds majority vote, was established so as to allow a supermajority of Senators in support of a measure to advance it to a vote – circumventing the filibuster.

The rule was amended in 1949 to also apply to nominations and again in 1975 to clarify that a three-fifths vote of the Senate (absent any vacancies) was required. Even still, Rule XXII protected the rights and privileges of Senators to a “defense,” even in the minority. Even though a bill may have majority support, a minority of 41 or more Senators can vote against a cloture attempt, endlessly debate, and effectively defeat the bill by preventing a final vote.

They can do the same on nominations. It was under these circumstances that, in 2013, Senate Majority Leader Reid decided to employ the “nuclear option” for the first time. Whether it be Republican “obstructionism” or their “right to minority privilege,” the Senate minority was blocking the confirmation of Executive Branch – particularly judicial – nominations being made by the Obama Administration. However, the Democrats lacked the supermajority vote needed to formally lower the cloture vote threshold.

Formally changing Rule XXII to eliminate, or lower, the 60-vote threshold is made challenging by the contents of the rule itself. Section 2 of Rule XXII states that, to end debate on any proposal “to amend the Senate rules… the necessary vote shall be two-thirds of the Senators present and voting.” In effect, this means that the 60-vote threshold for cloture under Rule XXII cannot be formally modified without the approval of, typically, 67 Senators – which the Democratic majority lacked in 2013.

However, Majority Leader Reid had a method available – the “nuclear option” – to lower the cloture vote threshold to get a final vote on the nominations. As explained above and described below, he did so by changing precedent on Rule XXII – essentially, having the Senate reinterpret Rule XXII as needed to enable cloture with the votes he could secure. Senator Mitch McConnell did the very same in 2017, to secure passage of President Trump’s Supreme Court nomination.

On October 31, 2013, the Senate voted to not invoke cloture on the nomination of Patricia Ann Millett to be United States Circuit Judge for the D.C. Circuit; Majority Leader Reid then successfully entered a motion to reconsider. Nearly a month later, on November 21, the Senate took up and agreed to that reconsideration. Senator Reid raised a point of order that a vote on cloture under rule XXII for all nominations other than for the Supreme Court is by majority vote. The chair ruled against the point of order, noting it was inconsistent with the required three-fifths vote the rule entailed.

Senator Reid appealed the ruling of the chair, who then put the ruling to the Senate for a vote. The Senate voted in favor, 52 to 48, of overturning the chair’s ruling. Minority Leader McConnell then raised a point of order that Rule XXII requires a three-fifths threshold for invoking cloture on a nomination; the chair ruled against this point of order, based on the precedent that Senator Reid just set. The Senate sustained this ruling in favor of the new precedent in another vote of 52 to 48. Thereafter, the Senate re-voted on the cloture motion, agreeing to it on a vote of 55 to 48 – enough under the new numerical majority precedent.

On April 6, 2017, now-Majority Leader McConnell followed a similar process to lower the vote threshold on cloture for a Supreme Court nomination. That day – two after he filed cloture on the committee-reported nomination of Neil Gorsuch to be an Associate Justice – the Senate voted to invoke cloture on the nomination. The vote was 55 to 45 – as the relevant threshold was still three-fifths of the Senate (60), the vote failed.

Senator McConnell then moved to reconsider and followed with a point of order that the 2013 precedent applied a majority vote cloture threshold to all nominations. The presiding officer ruled that the set precedent did not apply to Supreme Court nominations, which are rather considered “under plain language of rule XXII.” Senator McConnell, in the act to reinterpret rule XXII, appealed the ruling of the chair.

The presiding officer put the appeal of the ruling to the Senate for a vote. On the question of upholding the chair’s ruling, the Senate voted 48 to 52 – overturning the ruling, which thereby established new precedent. The Senate then “re-voted” on the cloture motion, as it had agreed to reconsider, with the vote being 54 to 45 – a successful vote, under that new precedent. The following day, the Senate confirmed Gorsuch’s nomination 54 to 45.

Because of the precedent set by these two reinterpretations of Rule XXII, the Senate can now invoke cloture on any nomination by a simple majority vote. With this, the “right,” “privilege,” or “power” of defense for the Senate minority has been eroded – if not outright eliminated – on matters of nominations… unless precedent (or the rule itself) is changed again.  The Senate’s decision to go “nuclear,” first in 2013 and again in 2017, remains topical today – its effect seen most recently in the contentious yet successful invocation of cloture and ultimate confirmation of Brett Kavanaugh to the Supreme Court.

“Filling” the Senate’s “Amendment Tree”

In recent years, a process involving the Senate’s “amendment tree” has been increasingly wielded by Senate leadership as a means to limit opportunity for Senators to offer amendments on measures on the Senate floor. For many observers of the Senate’s legislative process, the act of “filling” the amendment tree is a controversial – yet powerful – tactic by which the Majority Leader can control the content of bills and the legislative process.

The Senate is unique in often offering its members significant opportunity and flexibility to amend a measure on the floor. Generally, a measure being considered on the floor is open to amendment in two degrees – amendments to the text of the measure (an amendment in the first degree), and an amendment to that amendment (an amendment in the second degree). The amendments that can be in order at any one time depend on the form of the first amendment, and then the type and degree of subsequent amendments. The series of these amendments and “amendments to amendments” are the “limbs” on the amendment “tree.”

The amendment tree is “filled” when all amendments permitted by orders of precedence have been offered and are simultaneously pending. By precedent set by the Senate, once the “tree” is filled, further amendments cannot be offered until those which are pending are voted on.

How and why can a Majority Leader “fill” the amendment tree? Technically, any Senator – or group of Senators, should they be working together – may offer amendments in such a way to fill the tree. After all, Senate Rule XIX stipulates that the Senate’s presiding officer recognize the “Senator who shall first address him” – as such, Senators may offer amendments in the order that they obtain recognition, which in turn is the order they address the chair. It is conceivable that a single determined Senator could monopolize the amendment-offering process. However, as has become tradition through practice throughout much of the 20th century, priority of recognition is afforded to the Majority Leader if they seek recognition simultaneous to other Senators.

Because of this, a Majority Leader is guaranteed the ability and opportunity to fill an amendment tree if they repeatedly get recognized in turn to offer amendments to a pending measure. As a practical matter, because of the custom of granting the Majority Leader (or their designee) priority recognition, no other Senator can fill the amendment tree. To fill the tree, the Majority Leader offers first degree and second degree amendments until the amendment tree is full and their amendments must be voted on. Before that vote, however, the Majority Leader may file cloture pursuant to Rule XXII. If cloture is agreed upon, it locks the amendments in place, closes further debate on them, and forces non-germane amendments away.

There are several reasons why a majority leader might pursue the strategy of “filling the amendment tree,” to include:

  • Expediting Senate consideration of legislation by limiting the total number of amendments offered;
  • Instituting a measure of control over the sequence or subject of floor amendments offered;
  • Gaining advantage in negotiations of a unanimous consent request for further consideration of a measure;
  • Protecting vulnerable members of the same party from having to vote on controversial or politically challenging amendments.

The tactic has significant implications for Senate deliberations. First, it increases the power of the Committees and Committee leadership in deciding the content and scope of a piece of legislation. It can moderate Senators from the process of filing amendments in protest, or attaching “poison pills” to a measure in an attempt to defeat it.  For Senators who wish to offer amendments in good faith, they must secure the buy-in of the Majority Leader, lest they “fill the tree” before the amendment may be made. This entails significant negotiation and back-room agreement between leadership and a Senator for the Senator to substantively contribute in the process of Senate floor action.

Yet, conversely, the Majority Leader must assess risk in deciding to fill the amendment tree – as Senators may reject a bill if they feel they have not been given an adequate opportunity, as is their Senatorial prerogative, to offer amendment to a measure.

There have been both successful and unsuccessful attempts to circumvent a “filled” amendment tree. In 2009, Senator DeMint of South Carolina successfully suspended the provisions of rule XXII, including germaneness requirements, so that his amendment could be proposed and considered after Majority Leader Reid had filled the amendment tree and filed cloture. This move became routine procedure in the Senate until October 2011.

In October 2011, Senate Minority Leader Mitch McConnell attempted to use DeMint’s procedure to offer the “American Jobs Act” as an amendment to the Currency Exchange Rate Oversight Reform Bill – on which Senator Reid had filled the amendment tree. Senator Reid, however, raised a point of order against motions to suspend the rules after cloture is invoked. To do so, he called up Senator Coburn’s suspension of the rules amendment and then made a point of order that such suspension was a “dilatory motion” under Rule XXII – the rule states that “no dilatory motions… shall be in order.”

Senator Begich of Arkansas, presiding in the chair, held that the point of order was no sustained. Senator Reid appealed the ruling. The vote on upholding the ruling went to the Senate, which voted 48 to 51 – thereby setting a new precedent that motions to suspend the rules are not in order after cloture, pursuant to Rule XXII. Thus, Senator McConnell’s attempt to circumvent the filled amendment tree was unsuccessful – and any further attempts by Senators to use the suspension of the rules for such a purpose will fail, as well.

Origins of the United States’ Senate

The United States’ Senate has its origin in the Philadelphia Convention of 1787. Initially intended as a meeting to revise and strengthen the Articles of Confederation, the Convention instead established the Constitution which serves as the basis for today’s American government – including the characteristics and composition of the Senate.

Would there be a Senate – and if so, how would it represent the states? As he waited for the Convention to formally begin, James Madison, Delegate from Virginia, sketched out a proposal for organizing the new American government. Known now as the “Virginia Plan,” the draft proposed – among other elements – a bicameral legislature featuring a popularly elected “lower” chamber and an “upper” chamber elected by the lower. While several other proposals were introduced, the Virginia Plan – introduced on May 29 – would serve as the basis for the Convention’s deliberation on organizing the legislature. The notion of a two-chambered legislature, similar to many of the States’ yet dissimilar to the legislature under the Articles of Confederation, was largely accepted by the delegates.

The Virginia Plan proposed that both chambers’ number of members would be decided proportional to state populations – an arrangement that would favor the larger states. In mid-June, a caucus of smaller states, fearful of the power this could offer large states, created a proposal in response – the “New Jersey Plan.” It preserved the Article of Confederation’s one-vote-per-state representation under a single legislative body. While this plan was rejected, it offered the smaller states a point around which to rally.

Having hit deadlock on upper chamber apportionment, the delegates referred the problem to a committee to reach compromise. There, a proposal by Richard Sherman, Delegate from Connecticut, was taken up. It called for representation in the lower chamber to be based on population, while states would be equally represented in the upper chamber. Known variously as the “Connecticut Compromise,” the “Sherman Compromise,” or the “Great Compromise of 1787,” the idea was supported by Benjamin Franklin, who – to satisfy the larger states – further proposed that matters concerning money must originate in the lower chamber. Despite continuing debate and disagreement, the Convention narrowly adopted the plan on July 16.

The issue of apportionment was settled, but the question of how many Senators would represent each state remained outstanding. Few delegates considered a single Senator per state as enough – recognizing that an absence would leave a state without representation, and that more Senators would increase the knowledge and competency of the body. Conversely, too large a Senate would undermine its distinct purpose and membership. The Convention debated the merits of two versus three Senators per state.

Gouverneur Morris of Pennsylvania – who believed that three Senators per state was necessary to form acceptable quorum – and Rufus King of Massachusetts arrived at a proposal to force the question: that the “representation in the second branch consist of [blank] members from each State, who shall vote per capita.” The Convention voted favorably on the proposal on July 23rd. Only Pennsylvania voted in favor of three Senators when it came time to decide, and the rest, save for Maryland, voted for two. With that, the Convention decided that the Senate would consist of two Senators per state, each voting independently instead of as a bloc.

Other features of the Senate also emerged out of the Philadelphia Convention – such as term length and Senate “classes.” Madison’s Virginia Plan, as originally proposed, did not specify lengths of upper chamber terms; rather, on June 13, the Convention, having consulted the composition of the States’ senates, reported an amended version which designated seven-year Senate terms. This was met with criticism from some of the delegates – Alexander Hamilton sought lifelong terms, for example, while Madison advocated for nine-year terms. The issue soon became linked with the notion of a Senate “class” system – a staggered rotation of election for the Senate.

On June 25, Nathaniel Gorham, Delegate from Massachusetts, suggested a four-year term with a fourth of the Senate body being elected each year. Edmund Randolph, of Virginia, supported the idea of staggered rotation; biennial elections, the delegates hoped, would bring stability to the Senate and protect the Senate from a rapid turnover in ideas. Arguing for a lengthy seven-year term, Randolph, with Madison, cited Maryland’s state senate – with its five-year term, longer than others in the union – as an example of a successful body with a several-year Senatorial term. Hugh Williamson, of North Carolina, countered that a six-year term would be more easily divisible into equal election cycles. On the 26th, Gorham brought the question of a six-year term, with a third of members going out every second year. The Convention considered, but rejected, a nine-year term, and then passed the six-year, three-class Senate by a vote of 7 to 4.

Similarly, the Virginia Plan left the age requirement for Senate membership up to the Convention. On June 25, three days after designating twenty-five as the minimum age requirement for Representatives, the delegates unanimously approved an age of thirty for Senators. Later, Madison, in Federalist No. 62, would argue that the Convention felt that Senators needed a “greater extent of information and stability of character” – which would come with age – than members of the House.

While the original Virginia Plan also made no mention of a citizenship requirement for Senate members, the reported draft included a four-year citizenship requirement. Delegates debated between “total exclusion of adopted citizens” and “hasty admission of them,” fearing both foreign influence and control of the Senate and closing the institution to naturalized citizens. The Convention struck a compromise between these opposing camps by settling on a nine-year requirement. Pennsylvania’s Gouverneur Morris moved to replace this clause with a fourteen-year minimum, while  James Wilson of Pennsylvania wished to reduce it to 6 years, but the Convention voted both down – along with thirteen and ten year minimums – before agreeing on a nine-year requirement on an 8 to 3 vote.

Who would be the Senate’s presiding officer? An early draft of the Constitution, presented on August 6, allowed the Senate to choose its own President and designated that individual as the executive’s successor. Yet, as clamor for a separation of powers between branches increased, the Convention opted to create the Electoral College. While doing so, it proposed that the newly created executive position of “Vice President” would serve as President of the Senate – an arrangement similar to New York’s constitution, which had the lieutenant governor be president of its Senate and have a decisive vote on ties.

George Mason, Delegate from Pennsylvania, and Elbridge Gerry, of Massachusetts, spoke against this proposal, believing it to be in conflict with the principle of keeping the executive and legislature separate. Yet Roger Sherman, in defending it, noted that if “the Vice-President were not to be President of the Senate, he would be without employment… and some member by being made President must be deprived of his vote.”  This seemed to sway most delegates, who passed the proposal on a vote of 8 to 2.

Finally, the Convention took up the question of nominations. Some wanted the executive to have sole power over appointment, while others – following the precedent established in the Articles of Confederation and most State constitutions – wanted the legislature to have the responsibility. The delegates, in a compromise, first decided to grant the president the power to appoint executive branch officers, while the Senate would appoint the judiciary. Yet this was not enough to satisfy delegates who favored a strong executive, nor those who feared an overly strong executive. Instead, on September 4, the Convention was presented an amended appointment process, modeled off Massachusetts constitution – which had divided responsibilities between the governor, who made nominations, and the legislative council, which confirmed them. On September 7, this model was unanimously approved for the new federal government, with the Senate holding the power to confirm nominations.

After finishing deliberation on other matters related to other branches and making final modifications to style, the Convention engrossed the new Constitution on September 15 and submitted it for signing on September 17 – where 39 of the 55 delegates present signed it. From there, it was released to the public to begin the ratification process. Nearly a year and a half later, on April 6, 1789, the first Senate, modeled upon the decisions made at the Convention, achieved its quorum and elected its officers. On March 4, 1789, the first Session of the first Senate began.

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