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Brennan Center for Justice: Using the ?Constitutional Option? To Implement Senate Rules Reform

The “Constitutional Option”

  • The “Constitutional Option” is the assertion of the Senate’s inherent constitutional authority to set its own rules.
  • On the first day of the legislative session, a new Senate has the option to continue operating under the current rules without amendment, signifying the majority’s approval of the standing rules, or to invoke the “Constitutional Option” – and adopt new rules by a majority vote.
  • A Majority of the Senate Can Change Its Rules Through the “Constitutional Option”
  • Article 1, Section 5, Clause 2 of the Constitution authorizes each chamber of Congress to “determine the Rules of its Proceedings.”
  • The constitutional Framers rejected the approach of requiring a supermajority vote for most legislative matters, choosing to specify it for only a handful of especially consequential actions such as veto overrides, amendments, treaties, expulsion of Members, and impeachment.  The Framers did not impose a supermajority requirement on the power of each chamber to determine its own rules of proceedings.
  • Rule XXII’s requirement of a 2/3 majority to amend Senate rules cannot operate to limit a majority of a new Senate from exercising its constitutional authority to effect rules change.
  • Unless a majority has the ability to effect rules change at the start of a new session, the current Rules violate Article I, Section 5, and contravene the constitutional framework that enables each chamber to pass legislation by majority rule.
  • The anti-entrenchment principle prohibits one Senate from imposing a rule that prohibits each new Senate from changing its rules by a majority vote. This principle, which dates back to English parliamentary practice and has been reaffirmed repeatedly by the Supreme Court, prevents one legislature from  insulating statutes or procedural rules it passes from change by future legislatures.

Senate Precedent Confirms the “Constitutional Option” for Rules Reform

  • Multiple advisory opinions to the Senate — including by Vice Presidents Richard Nixon (in 1957 and 1959) and Hubert Humphrey (in 1967) — and past reform efforts explicitly validate the “Constitutional Option.”
  • In 1957, Vice President Nixon wrote: “It is the opinion of the Chair that while the rules of the Senate have been continued from one Congress to another, the right of the current majority of the Senate at the beginning of a new Congress to adopt its own rules, stemming as it does from the Constitution itself, cannot be restricted or limited by rules adopted by a majority of the Senate in a previous Congress. 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.”
  • In 1975, the Senate invoked the “Constitutional Option” to reduce the cloture threshold from a 2/3 to a 3/5 majority. Ultimately, the Senate compromised, adopting the reform by a 2/3 majority and reversing the parliamentary procedure that had enacted the rules change by a majority vote. Nevertheless, the effort in 1975 demonstrates precedent for the Senate’s ability to adopt new rules by a majority vote.

For More Information, See:

MIMI MARZIANI, BRENNAN CTR. FOR JUSTICE, FILIBUSTER ABUSE (2010), available at http://www.brennancenter.org/content/resource/filibuster_abuse/

MIMI MARZIANI, JONATHAN BACKER, DIANA KASDAN, BRENNAN CTR. FOR JUSTICE, CURBING FILIBUSTER ABUSE (2012), available at http://www.brennancenter.org/content/resource/curbing_filibuster_abuse/