Senate Majority Leader Bill Frist plans later this month to amend the most richly prized and roundly despised of the Senate’s regulations—Rule XXII—to force up or down votes on a handful of judges put forward by President Bush. Amending Rule XXII would effectively abolish the filibuster for judicial nominations. (Slate’s Tim Noah argues this week in favor of scrapping the filibuster entirely; Jacob Weisberg heartily disagrees.) Democrats refer to it as the “nuclear option” because, they argue, it would utterly devastate the Senate. Republicans refer to it by the equally loaded phrase “the constitutional option,” noting that the Constitution allows the Senate to make its own rules. If Republicans manage to amend Rule XXII, Democrats threaten to retaliate by invoking other Senate rules that would snarl and disrupt the chamber.
The 43 rules of the Senate, and the thousands of precedents derived from those rules, exercise an extraordinary and peculiar influence over the body. What are the rules? Where did they come from? How are they changed? And why is the fight over Rule XXII such a big deal?
In 1789, the Senate passed 20 rules to govern itself, a power given solely to it by Article 1, Section 5 of the Constitution. Since that time, there have been seven full-scale revisions of the rules—the most recent of which came in 1979—and numerous smaller changes and amendments. The rules, which cover everything from the language used to swear in new members to the value of gifts senators can accept, can be changed at anytime by a simple majority vote. If there is opposition to the change, a two-thirds vote is needed to end debate (or bring cloture, in Senate-ese).
Riddick’s Senate Procedure, a 1,500-plus-page tome, is the chamber’s unofficial bible, offering an authoritative history of rule-making—and -breaking—over the past 125 years. Sen. Robert Byrd, West Virginia Democrat and self-styled parliamentary guru, claims to have read the work cover-to-cover 16 times. The latest revision of Riddick’s was released in 1992 by the Government Printing Office.
In general, most Senate rules and precedents are peripheral to the day-to-day functioning of the body, because both parties waive their requirements in order to speed up the Senate’s functioning. For example, Rule IV states that every morning the journal of the previous day’s session—an accounting of all the action on the Senate floor—must be read in its entirety. To expedite the already molasses-slow legislating process, both parties agree to waive the reading of the journal through a “unanimous consent agreement.” Those agreements, by which all 100 senators agree to parameters for bringing a bill or nomination to the floor, are the backbone of an effective Senate. Usually the result of significant backroom bartering, the agreements often limit debate time or the number of amendments that can be offered for a piece of legislation. UCs, as they are known, have helped the chamber run smoothly since its formation.
Withholding unanimous consent is the strongest weapon Senate Democrats have should they choose to strike back against the nuclear option. Refusing consent for picayune bits of business such as the reading of the daily journal would effectively grind the Senate to a dead stop, leaving members unable to introduce new legislation until one side blinks. Putting a “hold” on a bill is a common way to deny unanimous consent, and any senator can do that by informing his party leader of his opposition. Democrats responding to the possibility of a nuclear option have said they will not bring the Senate entirely to a halt for any considerable period of time, but rather will pick their legislative battles.
Rule VI offers the Democrats another potential stalling tactic. It states that anytime the chamber is in session, a senator can suggest the absence of a quorum, or a simple majority. The roll is then called, and if 51 of the 100 members are not on the floor, the senators who are present can stop further debate until enough of their colleagues arrive to constitute a majority. Because there are rarely more than a few senators on the floor at any one time, except during scheduled votes, repeated requests for a quorum would delay legislation for days or even weeks, as well as infuriate senators by forcing them to troop constantly to the floor.
The Senate rules and precedents have plenty of other quirks. A 1901 order dictates that every Feb. 22, a senator must honor George Washington’s birthday by reading his 1796 farewell address to the nation. (Washington never actually delivered the speech but rather sent it in letter form to a Philadelphia newspaper.) A 1905 resolution banned flowers from the floor; the only exception, permitted by a 1983 amendment, are bouquets placed at the desk of a deceased senator on the day he or she is being honored.
Rule changes are few and far between in the Senate because the votes of two-thirds of the members are needed to end debate and force a vote. The Republicans’ nuclear option would be the exception to the rule (ahem). Instead of trying to directly change Rule XXII, a move that could be filibustered by his Democratic opponents, Frist will instead seek a ruling from the Senate’s presiding officer on whether filibustering judges is unconstitutional. That judgment would be made by Vice President Dick Cheney, who oversees the Senate during major floor fights. If Cheney rules judicial filibusters unconstitutional—a move that itself cannot be filibustered, according to Ritchie—his decision could be upheld by a simple majority. Traditionally, neither party has fiddled seriously with the rules because of an understanding among senators that even the most durable majority won’t last forever. We’ll find out soon whether that understanding still holds.