Legal Commentary

What can be done? Obviously, change the Senate's rules. As they stand, the rules require a two-thirds majority to change the cloture rule. What about changing the rules when the Senate reconvenes in January? There's a tradition that the Senate is a continuing body, whose rules remain in place until altered according to their own terms. That is, the Senate doesn't adopt its rules anew every two years as the House does. An important forthcoming article by Aaron Bruhl of the University of Houston Law Center, "Burying the 'Continuing Body' Theory of the Senate," debunks that tradition, at least to the point where a credible "legal" argument can be made that the Senate can change its rules in January by majority vote.

But, as I've said in a prior post, changing the cloture rule alone won't be enough. There was a reason that doing so by a ruling from the chair got the label "the nuclear option." Changing the rule over the objections of a cohesive minority that's big enough -- as the Republican minority is -- would immobilize the Senate because an enormous amount of the Senate's work gets done by unanimous consent to the waiver of otherwise applicable rules. (Remember the contretemps over reading Senator Sanders's substitute amendment for the health care reform bill? The rules require reading such amendments, which almost never happens because the proposer seeks and obtains unanimous consent to waive that rule.) By denying unanimous consent to such waivers, a minority can stall legislation almost as effectively as it can through the modern form of the filibuster.

So, what Democrats need is either to invoke cloture using the existing rule -- obviously an impossibility -- or to change the Senate's rules rather comprehensively. Supporters of reforming the Senate's procedures have to talk to specialists in the Senate's rules to figure out what exactly needs to be done. There's no quick and easy fix. "Make Them Filibuster" may sound good on TV, but it's not a policy option that would have real effects.

Full post as published by Balkinization on January 25, 2010 (boomark / email).