	Overview

From 1953 to 1975, initiatives to reform Senate Rule XXII at the start of a new Congress were biennial rituals. They were instigated mainly by Senators in each party frustrated by the chamber's inability to enact certain legislation, such as civil rights measures, due to filibusters. The biennial focus on amending Rule XXII at the beginning of a Congress declined somewhat with the revisions made to Rule XXII in 1975—cloture was lowered from two-thirds of the Senators present and voting to three-fifths of the Senators chosen and sworn—and the changes made in 1979 and 1986 involving the length of post-cloture debate. However, senatorial interest in changing Rule XXII at the start of a new Congress—called the "constitutional option" by some—reemerged in the 2000s. At the beginning of the 112 th , 113 th , and 114 th Congresses—in 2011, 2013, and 2015, respectively—a number of reform-minded Senators unsuccessfully urged the Senate to adopt its rules on "opening day" by majority vote (as the House does on its first day) without having to mobilize a supermajority vote. Rule XXII mandates that prolonged debate on amendments to Senate rules can be brought to an end by a two-thirds vote of the Senators present and voting. Reform Senators have generally viewed the opening of a new Congress as a special constitutional time that permits the Senate to change its procedures by majority vote unencumbered by chamber rules adopted by a previous Congress. They cite the U.S. Constitution (Article I, Section 5) as their authority: "Each House may determine the Rules of its Proceedings," which implicitly means by majority vote, state the reformers. They point out that the Senate has adopted rules, and the Constitution says nothing about the vote required to adopt those rules. They also emphasize that the Senate is a continuing body with continuing rules (the "continuing body" doctrine ). If an effort is made at the start of the 115 th Congress (2017-2018) to amend Senate rules by majority vote—the so-called constitutional option—what key concerns might Senators on either side of the issue bear in mind? They are the support of the presiding officer, which could be the President of the Senate; the assistance of the majority leader; the mobilization of a determined and united majority; skillful use of procedural moves and countermoves; the length of "opening day"; the continuing body doctrine; and procedures to be followed pending approval of new rules.
From 1953 to 1975, proposals to reform Rule XXII at the start of a new Congress were biennial rituals. They were instigated by Senators in each party frustrated by the chamber's inability to enact social and civil rights legislation because of the opposition of other Members. The biennial focus declined somewhat when the Senate in 1975 amended Rule XXII to reduce the number of Senators required to invoke cloture from two-thirds of the Senators present and voting to three-fifths of the Senators chosen and sworn (60 of 100). In 1979 and 1986, the Senate also amended Rule XXII by reducing the length of time for post-cloture debate. However, senatorial interest in revising Rule XXII on "opening day" reemerged in the 2000s.
At the start of three recent Congresses—in 2011, 2013, and 2015—a number of reform-minded Senators unsuccessfully urged the Senate (as the House does on its first day) to adopt its rules by majority vote without having to muster a supermajority vote. Rule XXII mandates that prolonged debate on amendments to Senate rules can be brought to an end by a two-thirds vote of the Senators present and voting—67 of 100 Members if all Senators vote, a likely outcome on an issue that affects the institution's long-standing deliberative character.
Reform-minded Senators have generally viewed the opening of a new Congress as a special constitutional time that permits the Senate to amend its procedures by majority vote unencumbered by chamber rules adopted by a previous Congress. They cite the U.S. Constitution (Article I, Section 5) as their authority: "Each House may determine the Rules of its Proceedings," which implicitly means by majority vote, state the reformers. Opponents reject this assertion and point out that the Senate has adopted rules, and the Constitution says nothing about the vote required to adopt those rules. Moreover, the Senate is a continuing body with continuing rules.
This report's prime purpose is to discuss seven considerations that Senators on either side of the issue might bear in mind if an effort is made at the start of the 115th Congress (2017-2018) to amend Senate rules by majority vote. Seven specific considerations are discussed: the role of the presiding officer, who could be the President of the Senate; the assistance of the majority leader; the mobilization of a determined and united majority; skillful use of procedural moves and countermoves; the length of "opening day"; the continuing body doctrine; and procedures to be followed pending approval of new rules. The report concludes with several observations about legislating in the Senate.