Note 12. Adopting, Reforming, and Breaking the Rules
Has Partisanship Destroyed the Consensus about the Legislative Process?
We are at a juncture in congressional history in which the rules governing congressional policy making are hotly contested. Some observers call it a crisis. Current controversies center on the Senate and its filibuster practice, which I have addressed in another note. But issue of how the House and Senate govern themselves is a broader subject that deserves our close attention. Phrases like “changing the rules by breaking the rules,” “the demise of civility,” “the destruction of congressional norms,” and even “breaking the Senate” have been repeated many times by legislators and close observers of Congress in recent years.
Some Background
Legislative bodies, of course, have rules that govern how collective decisions are made. Rules are required to lend order to and set standards for making decisions. Knowing the rules of the legislative process, like knowing the rules of a game, can give an advantage to some legislators as they devise strategies to achieve their political goals. Moreover, the ability to change the rules can create an advantage for some legislators—a committee, party, or faction. Congress, as one of the older political institutions in the world, is no exception. It is rich in formal rules, precedents, and norms and standard practices, many of which favor one set of legislators over others.
The Constitution creates the House and Senate and requires the approval of both houses before legislation is sent to the president for signature or veto. Two-thirds majorities are required to override a presidential veto, ratify treaties in the Senate, to propose constitutional amendments, convict and remove an official from office in the Senate, and for other purposes. Otherwise, the Constitution implies (but does not state explicitly) that the House and Senate operate by simple majority rule. The Constitution is silent on most of the details of the legislative process. For example, it is left to the House and Senate to determine how to prepare legislation for consideration, how to resolve differences between the House and Senate, how to create committees, how to hire staff, and how to adjudicate and punish ethical violations of legislators. In fact, the Constitution (Art. I, Sec. 5) provides that “each house may determine the rules of its proceedings” so the courts do not intervene on issues of congressional procedure.
Congress, of course, is two legislative bodies, each with a set of rules. Over Congress’s 232-year history, the House and Senate have approved a wide range of written, formally adopted rules (standing rules), adopted a large set of precedents that interpret or fill in the gaps of the standing rules, and, like all groups that gather regularly over a long period of time, acquired informal norms about how its members are to behave. The rules of the two houses are quite different. In fact, the Standing Rules of the Senate are only about 60 percent of the length of the Standing Rules of the House.
In the early Congresses, the House and Senate adopted limited rules and operated under traditional parliamentary practice. Thomas Jefferson, the second vice president and president of the Senate, penned a manual of standard practice that guided the two houses on questions that were not addressed by new rules. In fact, the standing rules of the House still make Jefferson’s Manual the default guide. Over a few years, the two houses accumulated new rules and eventually chose to compile and order those rules. This first codification of Senate rules occurred in 1806. General revisions of the rules have occurred occasionally since then.
The House and Senate address ambiguities, gaps, and even competing interpretations by setting precedents. These precedents are often made quite informally by the actions of presiding officers, but points of order raised and voted upon by members settle many questions. In the early decades, precedents quickly proved difficult to remember. In the House, clerks with titles “messenger to the speaker” and later “clerk at the speaker’s table” collected precedents and advised the speaker of the House as early as the 1850s. The modern title, “parliamentarian,” was adopted in 1927. In the Senate, the task fell to an assistant secretary of the Senate until 1935, when the modern title and separate position of “Senate Parliamentarian” was created. Both houses collect their precedents and publish updates.[1]
In practice, the presiding officer looks to the majority leader whenever calling on a senator to address the Senate. Senators who might jump to their feet and seek recognition are not recognized over a floor leader who is a bit slow to do so. The 1930s precedent is known as the “right of first recognition,” but it is observed in practice more liberally to give the majority leader, or his/her designee, an opportunity to take the floor to speak or make a motion. In this way, the majority leader always has the opportunity to set the agenda by making a motion, which, of course, may or may not be approved by the Senate.
Congress occasionally places rules that govern its organization and procedure in statutes. The Budget Act of 1974 is the most important of these statutes. The Budget Act directly amended the rules of the House and Senate in creating the budget committees, establishing a budget process that includes budget resolutions and reconciliation bills, and specifying budget categories and caps that guide the appropriations process. The Budget Act, like most statutes that establish rules, includes a provision that protects the right of each house to determine its own rules, as Art. I, Sec. 5, of the Constitution provides:
(1) as an exercise of the rulemaking power of the House of Representatives and the Senate, respectively, and as such they shall be considered as part of the rules of each House, respectively, or of that House to which they specifically apply, and such rules shall supersede other rules only to the extent that they are inconsistent therewith; and
(2) with full recognition of the constitutional right of either House to change such rules (so far as relating to such House) at any time, in the same manner, and to the same extent as in the case of any other rule of such House (PL93-344, Sec. 904).
Why does Congress establish internal rules in statutes? The primary reason is that the rules are central to some agreement between the House and Senate, and often among members within each house. In the case of the Budget Act, the houses agreed to create a process for imposing budget constraints that required both houses to have an integrated schedule for action on budget, spending, and tax measures. Congress has adopted other rules by statute for disapproving of executive branch regulations, a president’s plans to reorganized executive departments, international trade agreements, and other matters.
Thus, we have a somewhat fluid hierarchy of rules and practices: the Constitution, standing rules (and statutes), precedents, and norms and practices lend order to congressional decision making. There is no detailed how-a-bill-becomes-a-law legislative process dictated by the Constitution other than the requirement of agreement of the House, Senate, and president (or veto and override) to enact a new law. The House and Senate can structure their internal decision-making processes as they want, change the rules as they want, have ways to temporarily set aside or adjust rules, and even observe their rules to the extent that they want.
An Example
How does the hierarchy of rules and practices work in practice? Here’s an example.
The Senate has long had a rule that provides that “the presiding officer shall recognize the Senator who shall first address him” (Rule XIX). On the face of it, the rule seems to be a fair implementation of the idea that all senators are equal and should be afforded an equal opportunity to participate in floor proceedings. However, the rule was in place nearly a century before in the Senate had majority and minority leaders—often called “floor leaders”—who represent the two major parties. In 1937, during a dispute about who first sought recognition, the vice president, as presiding officer, recognized the majority leader rather than another senator and explained that it was his practice to recognize the majority leader or minority leader whenever they seek recognition at the same time as another senator. “A tie goes to the floor leader” might be one way to interpret the precedent. This “right of first recognition” is a precedent observed by presiding officers and is vital to the majority leader’s ability to make motions and thereby attempt to set the agenda for the Senate.
In practice, the presiding officer always looks to the majority leader, or a senator taking his or her place, when there is a pause in the action. Senators do not try to get the jump on the floor leaders. In principle, another senator could attempt to be the first to address the presiding officer and be recognized to speak or make a motion, but the presiding officer would likely ignore him or her if it was obvious that the majority leader was ready to speak.
The rule, precedent, and norm are related to each other, but we could not explain the norm by reading the rule. The standing rule was elaborated by 1937 precedent in response to intervening events and that precedent generated everyday behavior that is consistent with the spirit of the precedent. Presiding officers simply routinely call on the majority leader when the leader expects to be recognized. It would be unseemly or uncivil—that is, violate senators’ expectations—if a senator regularly sought to preempt a floor leader. A particular sequence of events created modern practice. The rule could be revised, but the Senate lives quite nicely by observing a procedural norm.
The Case of Senate Rule XXII
In what might seem the oddest of outcomes, the Senate has set precedents that violate the plain meaning of a standing rule. The precedents and the standing rule remain in place and the Senate lives, perhaps not too comfortably, with this state of affairs. This involves the Senate filibuster practice. It is as important as it is rare.
Senate Rule XXII provides that a cloture motion—a motion to end debate on a motion or measure after a specified period and bring the matter to a vote—requires a three-fifths vote of all senators. That is, if all 100 Senate seats are filled, 60 votes are required to invoke cloture. This allows a large minority—41 if there are 100 senators—to block action by refusing to end debate.
The rule also provides that a different threshold for cloture applies to a measure to change a Senate rule. The cloture threshold is two-thirds of all senators present and voting. A resolution to change Rule XXII, for example, would be subject to a cloture threshold of 67 if all 100 senators were present and voting. The two thresholds have been in Rule XXII since 1975.
Finally, it is important to recognize that the Senate officially considers itself to be a “continuing body” (Senate Rule V). That is, the rules of the Senate remain in effect from Congress to Congress unless changed. In contrast, the House adopts its rules anew at the beginning of each new Congress, which gives the majority party an opportunity to include revised rules. As a continuing body with a two-thirds requirement to close debate on a change in the rules, the Senate seems to be generally unable to adopt new rules that disadvantage a large minority.
One implication of Rule XXII is that a resolution to change any rule is subject to the two-thirds (67) requirement for cloture. Since 1975, a majority party has had at most 61 members, and then only in two Congresses—1975-1976 and 1977-1978. For nearly a half century, then, a majority party facing a reasonably united minority party simply has not been able to revise, add, or drop any rules, at least not under the terms of Rule XXII. Of course, the inability of majorities in the modern Congress to reform the rules includes a revision of Rule XXII itself. The two-thirds requirement, if observed as expected, does a good job of locking in rules that a minority does not want changed.
Since at least the 1940s, reformers have challenged the super-majority requirement and argued that the Constitution implies that a simple majority of senators should be allowed to change the rules. They make three points. First, they observe that the Constitution provides that “each house may determine the rules of its proceedings.” Second, because the Constitution implies that a simple majority determines outcomes in both houses, a simple majority of senators should be able to change the rules at any time; the idea that the Senate is a continuing body should not stand in the way of a majority to change the rules. Third, the Constitution, which assumes that a majority can determine the rules; a Senate-created rule to the contrary (the two-thirds threshold for cloture) is unconstitutional. As persuasive as this argument has been for some senators, it has not motivated enough senators to impose that interpretation through a point of order backed by a majority.
Nevertheless, as I discussed in Note 5, frustration with minority obstructionism reached a boiling point several times in the last two decades. After months of struggle with Republicans’ refusal to allow executive and judicial nominations to come to a vote in the summer and fall of 2013, Democratic leader Harry Reid (D-NV) made a point of order that only a simple majority was required to invoke cloture on nominations (except nominations to the Supreme Court). He made the point of order without the constitutional argument that reformers had made for decades and made clear that he was making this move in response to what he considered extraordinary abuse of the ability to filibuster on the part of Republicans. The presiding officer ruled against Reid’s point of order (it was contrary to the plain meaning of Rule XXII) and the majority Democrats overturned the ruling of the presiding officer. This set a precedent—simple majority cloture for nominations—that was clearly inconsistent to Rule XXII.
In 2017, a Republican majority supported their leader’s point of order to extend simple majority to Supreme Court nominations and, in 2019, reduced the period for debate once cloture is invoked from 30 hours to two hours for most executive nominations and district court nominations. In 2017, Mitch McConnell, the Republican leader, made clear that the Democratic move in 2013 justified his move. In 2019, McConnell simply did not like the delays in acting on nominations that the 30-hour limit on post-cloture debate allowed and wanted to process judicial nominations more quickly before losing the presidency.[2]
With these “reform-by-ruling” episodes, as I have called them, Senate majority parties have changed a standing rule by “bending” or “breaking”—I would say breaking--the provision of Rule XXII that provides for a two-thirds majority threshold for a measure that changes the rules. The clear purpose of that high threshold, left in the rules in 1975 when the rule was last changed, was to make changes in the rules difficult. On each occasion, a partisan purpose trumped the institutional rule and made a precedent the effective rule of the Senate.
Before 2013, at least a few senators openly worried about changing the rules by violating Rule XXII. Indeed, even the constitutional argument offered by reformers for decades was ignored; blunt force of a majority overturning a ruling of the presiding officer accomplished the majority’s goal. The worriers always predicted that reforming the rules by ignoring the rules meant an end to the rules and portended chaos for the Senate. Adhering to Rule XXII, they argued, was essential for maintaining a rule-governed body. In fact, senators themselves refer to this process as the “nuclear option” because of the radical nature of the move.
The issue is hardly settled. In 2021 many—if not most—majority party Democrats were eager to act on legislation but were confronted with Republicans who refused to allow floor action on a variety of legislation. Democrats worked around the obstruction by using reconciliation for some matters (see Note 10), but were stymied on several high priority issues. Lowering the threshold for cloture on legislation was the objective, but reform-by-ruling (the “nuclear option”) required a majority to settle the issue on a point of order. In a Senate split 50-50 between the parties, at least two Democrats, Joe Manchin (D-WV) and Kirsten Sinema (D-AZ), opposed the move and left their party leadership with no choice but to drop or delay consideration of several important measures.
Understanding Rules and Norms
Rules, precedents, and norms have force—influence behavior—because people choose to abide by them. They may be observed nearly universally, as most standing rules in Congress are, or they may be violated with some frequency with no clear consequences for the deviants, as some informal norms are. Of course, there are times and places when an outside authority is so powerful that it can enforce the rules and impose strong penalties, but what happens when a self-governing group—like the Senate—chooses to ignore the rules? The question is always, Under what circumstances are rules followed?
There are few generalizations we can make about rules, formal and informal:
· Rules are valued because they lend order to situations that otherwise might be quite chaotic. Some clarity about the “rules of the game” allows people to predict how others will behave and to know the possibilities and limits for their own behavior.
· Rules often create advantages and disadvantages for participants. They usually are defended by those who are advantaged by them. In most situations, the defenders are the people in power who have acquired their power under existing rules, but they, too, may see additional advantage to be acquired through a change in the rules when changing circumstances alter the effect of old rules.
· It is often difficult to predict the future of circumstances that influence the distribution of advantages and disadvantages under a set of rules. The uncertainty, and the value placed on short-term and long-term interests, can influence views about reform of the rules.
· Short- and long-term interests are quite varied. In the case of Congress, we can think of legislators’ desires to serve a long career, their interest in becoming more influential within Congress, their personal policy interests, and their partisan interests as factors that shape their attitudes about the rules and reform. Some of those interests may push them to favor reform while others lead them to oppose reform. The relative importance of the interests that influence attitudes about the rules can change over time.
· Rule makers usually provide a means for changing the rules. In doing so, they usually do not anticipate that the rules will be broken or ignored in future efforts to change the rules.
These generalizations fit the Senate. While reformers in 1975 understood the constitutional argument that a simple majority of senators should be able to change the rules, they expected that their retention of a two-thirds majority cloture threshold for measures that change the rules would be respected. They also expected the new 60-vote cloture threshold to tame a sizable uptick in filibustering. Reform-by-ruling, technically feasible under the rules but in clear contradiction of the intent of Rule XXII, was precisely what many senators were trying to avoid and, at the time, they did so.
The reformers of 1975 did not anticipate the intense partisanship that would emerge years later or the way the filibuster would be used as a general partisan strategy slow Senate action on most important legislation and most presidential nominations. In fact, in their generation, reform-by-ruling occurred soon thereafter (in 1979) to bar dilatory motions during post-cloture debate, but that effort was considered by many senators to be in the spirit of Rule XXII’s goal of getting to a vote on a matter once cloture is invoked. The rulings in 2013, 2017, and 2019 directly contradicted the plain meaning and spirit of the standing rule.
In 2021, we are now witnesses to a Senate in which obstruction is the standard operating procedure for the minority party Republicans, who have intensified their rhetoric about how it will react if the majority party musters sufficient support for simple-majority cloture on legislation. Minority Leader Mitch McConnell, most notably, predicted a “scorched earth Senate,” “drained of comity and consent,” in which no minor or routine motion would be approved by unanimous consent, would require a quorum, and the majority would have no time to complete the Senate’s necessary business.[3] McConnell’s comments reflect a willingness to further undermine norms of self-restraint and civility as a check on more reform-by-ruling action by the majority (as he did on Supreme Court nominations and post-cloture debate).
Plainly, today’s senators are no long unanimous about the importance of observing its standing rules or old norms that called for restraint in exploiting those rules for partisan advantage. In the view of some, the importance of some issues or nominations justifies a resort to the nuclear option.
You might get the impression that the Senate has sunk into a state of lawlessness. Not quite. For example, when seeking to avoid filibusters, as I noted in Note 10, the majority party has used the reconciliation process to enact legislation and, while stretching the range of issues incorporated in reconciliation bills, has adhered to the parliamentarian’s view of what is permitted under the Budget Act. Even the 60-vote requirement of the Budget Act for granting a waiver to Budget Act provisions has not been challenged.
Nevertheless, the Senate’s experience in recent decades illustrates the precarious condition of rules. We take rules for granted in most circumstances, but we know that rules are changed from time-to-time, usually in a way that is provided in the rules. Rarely, a consensus in favor of the rules and the means for changing them and the self-restraint exercised in the spirit of the rules is broken by the value placed on other policy, ideological, or partisan considerations. The Senate is close to that point now.
[1] For the House, go to https://rules.house.gov/rules-and-resources/additional-volumes. For the Senate, go to https://www.senate.gov/reference/reference_index_subjects/Rules_and_Procedure_vrd.htm.
[2] For relevant evidence, see Sarah Binder, “The Republican Senate went nuclear again to speed up confirming conservative judges,” Washington Post, April 6, 2019 [https://www.washingtonpost.com/politics/2019/04/06/this-week-republican-senate-went-nuclear-again-now-it-can-speed-up-confirming-conservative-judges/][3]Congressional Record, March 16, 2021, S1532-S1534.