The Need for the Constitutional Option

by Sen. Tom Udall
Huffington Post, January 26, 2010

[I've left off the beginning paragraphs of the piece]

The Constitution v. The Catch XXII

While I am convinced that our inability to function is our own fault, we have the authority within our Constitution to act.

Article I, Section 5 of the Constitution states, “Each House may determine the Rules of its Proceedings…” Yet, at the beginning of the 111th Congress, unlike in the House of Representatives, there was no vote on a package of rules that would govern the body for the two years that comprises a term of Congress. As a result, 96 of my colleagues and I (three senators had an opportunity to vote on the last change to the rules in 1975) are bound by rules put in place decades ago and make conducting the business of the Senate nearly impossible.

Specifically, under the “filibuster rule” (Rule XXII), it is not possible to limit debate, or end a filibuster, without three-fifths, or 60, of all Senators voting to do so. In the past several years, the use — and abuse — of filibusters by both parties to obstruct the Senate from functioning has become the norm. But it hasn’t always been this way. Such cloture votes used to occur perhaps seven or eight times during a congressional session, but last Congress there were 112 – most occasioned simply by the threat of a filibuster. The use of the filibuster today dominates the Senate’s business at an irresponsible level, threatening our ability to operate.

[There appears here a graph showing the frequency with which the filibuster was used since 1919: the bars on the graph are so short as to be almost invisibile until 1979-80, when it climbs to 20, and then it gradually grows until hitting a kind of peak at 61 in the 2001-2002 session, but has now spiked up to 112 in the year just ended.]

Even worse, the rules make any effort to change them a daunting process. Currently the rules for the Senate continue from one Congress to the next. However, as last modified in 1975, even attempts to change the rules can be filibustered, and in fact require an even greater threshold (two-thirds, or 67 senators) be met than for the regular business of the Senate.

When the authors of the Constitution believed a supermajority vote was necessary, they clearly said so. And while the Constitution states that we may determine our own rules, it makes no mention that it require a supermajority vote to do so. In addition, a longstanding common law principle, upheld in Supreme Court decisions, states that one legislature cannot bind its successors. To require a supermajority to change the rules, as is our current practice, is to allow a Senate rule to trump our U.S. Constitution and bind future Senates. This should not be.

The Constitutional Option

The need to reform our rules is not a partisan issue — Senators of both parties have spoken out against the inability of the Senate to amend its own rules. Sen. Ted Kennedy, whom we all miss dearly, 35-years-ago said of the need to reform the rules, “the notion that a filibuster can be used to defeat an attempt to change the filibuster rule cannot withstand analysis. It would impose an unconstitutional prior restraint on the parliamentary procedure in the Senate. It would turn Rule XXII into a Catch XXII.” And, as my esteemed colleague from Utah, Sen. Hatch, stated in a National Review article in 2005, “both conservative and liberal legal scholars, including those who see no constitutional problems with the current filibuster campaign, agree that a simple majority can change Senate rules at the beginning of a new Congress.”

In the 1950s, a bipartisan group of senators had had enough. On behalf of himself and 18 others, New Mexico’s own Sen. Clinton Anderson attempted to limit debate and control the use of filibuster by adopting the 1917 belief of Sen. Thomas Walsh that each new Congress brings with it a new Senate entitled to consider and adopt its own rules. On January 3, 1953 Anderson moved that the Senate immediately consider the adoption of rules for the Senate of the 83rd Congress. As the junior senator from New Mexico, I have inherited Sen. Clinton Anderson’s seat and in 2011, at the beginning of the 112th Congress, I will follow in the tradition of Sen. Anderson and call on the Senate to exercise its constitutional right to adopt its rules of procedure by a simple majority vote.

My party is currently in the majority in the Senate. And as the ebb and flow of politics continues, one day we will be in the minority. But my position on this issue will remain the same. In a world that is constantly changing, our democracy requires a Congress that can respond effectively to the issues of the day without, as my colleague Sen. Robert Byrd once said, being, “obliged to be bound by the dead hand of the past.”