Consideration of Resolutions to Change Standing Rules

Several elements of the rules governing proceedings on a resolution to amend the Standing Rules of the Senate are especially important in determining how the Senate can consider such a resolution when it is controversial: (1) the Senate can adopt the resolution by a simple majority vote; (2) a supermajority vote may be needed in order to limit the time for consideration and ensure that the Senate can reach the point of voting on the resolution; (3) if this supermajority vote to limit consideration is adopted, amendments to the resolution will be limited to those that are germane and have been filed in advance; (4) a supermajority vote also may be required to limit the time for consideration of a motion to take up the resolution; and (5) in practice, the resolution could become available for consideration at all only if it had either been reported from committee or the order of business for its consideration was reached in a "morning hour." First, like any other measure under the general Rules of the Senate, a resolution to change Senate Rules is debatable. When a measure is amendable, Senate Rules impose no general restrictions on the subject matter of amendments that may be offered; the Senate may impose such restrictions only by unanimous consent or through cloture. For changes in the Standing Rules, cloture can be invoked only by vote of two-thirds of Senators voting, with a quorum present. A precise statement would reflect this understanding: in cases in which opponents are willing to carry on a filibuster , it can become necessary to obtain supermajority support (by two-thirds of Senators present and voting) in order to bring the Senate to the point at which it can vote on a proposal to amend Senate Rules. An ordinary simple majority of Senators voting can then adopt the proposal itself. A simple majority can adopt a motion to proceed, but a motion to proceed to consider a proposal to change Standing Rules is always debatable, and therefore can itself be filibustered. As a result, it might become necessary to obtain a (two-thirds supermajority) vote to invoke cloture on the motion to proceed to consider a rules change resolution in order to reach a (simple majority) vote on that motion, and then to invoke cloture again (by a two-thirds supermajority) to limit debate on the resolution itself (which can be adopted by a simple majority). If a provision in a bill or joint resolution directed a change in the Standing Rules, the measure as a whole (and, presumably, any motion to proceed to its consideration) would become subject to the requirement for two-thirds of Senators present and voting for cloture, but if the provision established some other form of procedural regulation, such as a standing order, the requirement of three-fifths of the full membership of the Senate would apply. This notice requirement would apparently not be applicable for an amendment proposing a standing order or other form of procedural regulation. Such a proceeding might result either in a ruling that directly establishes an altered practice or in one that permits a simple majority to bring the Senate to a vote on a change in rules. Opponents would be able to filibuster the procedural question, potentially rendering the Senate unable to reach a vote by which a simple majority could establish the desired precedent unless a supermajority vote could be secured for cloture on the procedural proposition. The proposed proceeding would be based on the argument that, to make effective the constitutional power of the Senate to determine its own procedures, it is requisite that a simple majority be able to bring to a close the consideration of a proposal to establish or amend Senate rules. Implementing a "Nuclear" or "Constitutional" Option

Under the line of argument described in the preceding sections, supporters of change in the rules would pursue a "nuclear option" during the beginning of a new Congress by raising some point of order whose settlement would permit a majority to close debate on a pending rules change proposal (or on a pending motion to proceed to its consideration), perhaps on the basis that the Constitution requires that this action be possible. In these circumstances, as a result, opponents of change could attempt to prevent the establishment of the new precedent by filibustering the vote on the appeal.
This report discusses procedures and related issues involved in considering changes to Senate rules. The Constitution empowers each house of Congress to determine its own rules. The Senate normally considers changes to its Standing Rules in the form of a simple resolution, which (like any ordinary measure) can be adopted by a majority of Senators voting, a quorum being present ("simple majority"). Like most measures, however, such a resolution is debatable. Senate rules place no general limits on how long consideration of a measure may last, and allow such limits to be imposed only by a supermajority vote for cloture. As a result, opponents may be able to prevent the resolution from coming to a vote by filibustering. For changes in Standing Rules, the supermajority requisite for cloture is two-thirds of Senators voting, with a quorum present. Except by unanimous consent, moreover, the Senate can normally take up a resolution changing rules (or any other measure) only by adopting a motion to proceed to consider. A simple majority can adopt this motion, but the motion is itself debatable, so that in order to reach a vote, it may be necessary to obtain a two-thirds supermajority to invoke cloture first on the motion to proceed, then also on the measure itself.
For these reasons, in cases in which opponents are willing to filibuster, it can become necessary, in practice, to obtain supermajority support in order to bring the Senate to the point at which it can vote on a proposal to amend Senate Rules, even though a simple majority can then adopt the proposal itself.
Changes to Standing Rules could also be included in other forms of resolution, or in bills, but any motion to consider a measure containing such provisions is still always debatable, and a two-thirds supermajority is still required for cloture. Procedural changes could also be established as standing orders, or as certain other kinds of procedural regulation. A motion to proceed to consider a measure establishing procedural regulations in any such form would also be debatable, but cloture on such a measure would require three-fifths of the full membership of the Senate.
Finally, the Senate may also change its procedures by establishing new precedents that interpret existing rules or other standards differently from before. This might be achieved either by a ruling that directly establishes an altered practice or by one that permits a simple majority to bring the Senate to a vote on a change in rules. If a point of order asserts a new interpretation, the chair will normally overrule it on the basis of existing precedents, but if that decision is appealed to the full Senate, a simple majority could establish the new interpretation by voting to reverse the decision. Appeals are normally debatable, however, so that opponents may be able to prevent any vote to overturn the ruling by filibustering the appeal, unless a supermajority would vote for cloture.
Proceedings that would permit the Senate to reinterpret rules without requiring a supermajority vote in the process have been called the "nuclear option," or, if implemented through raising a point of order on constitutional grounds, the "constitutional option." It is not clear that any such form of proceeding can be proposed that would not require violations of existing rules in the process of changing them. Some of the proceedings proposed would require the chair to make a ruling contrary to precedent, or else to submit to the decision of the Senate a settled procedural question on which the chair would routinely rule. Others would require the Senate to entertain a novel motion through which a simple majority could close debate, or would involve disposing of a motion through proceedings that would be in order only if the Senate were already to have approved the motion.