PFAWF Analysis of The Constitutional Option to Change Senate Rules and Procedures

According to published reports, Senate Majority Leader Bill Frist intends to push the button on the “nuclear option” to eliminate judicial filibusters within the next four to eight weeks.

Senate Majority Leader Bill Frist is trying hard to convince fellow Republican Senators that the “nuclear option” – a parliamentary trick to change the Senate filibuster rules – has historical precedent. Unfortunately for Frist and his allies, a recent law journal article that reportedly is a key element of the briefing book prepared for his colleagues seriously undermines his claims. The fact that Frist and his allies are leaning so heavily on an article that actually damages their case demonstrates how little legal and historical ground they have to stand on.

People For the American Way Foundation has prepared an in-depth analysis of The Constitutional Option to Change Senate Rules and Procedures: A Majoritarian Means to Over Come the Filibuster, the lengthy article by Martin Gold and Dimple Gupta published recently in the self-described conservative/libertarian Harvard Journal on Law and Public Policy.

Among the key points in PFAWF’s analysis:

• The Gold/Gupta article directly rebuts assertions by GOP leaders that recent Democratic filibusters of judicial nominees are unprecedented.
• Over half of the Gold/Gupta article examines previous efforts to do away with the longstanding practice that the Senate’s rules continue from one Congress to the next. (Some nuclear option proponents have argued that a simple majority could rewrite new rules at the beginning of the Senate, even though explicit written rules say that they do continue, and require a two-thirds majority to end debate on rule changes.) The attached analysis notes that Gold and Gupta are ultimately forced to admit that the Senate has squarely rejected this claim every single time it came to a vote.
• None of the supposed “precedents” cited by nuclear option proponents for changing the rules by parliamentary ruling supports the effort to reinterpret the Senate’s written rules to mean the opposite of their explicit text. The incidents that Gold and Gupta try to stretch into precedents for the nuclear option are not remotely comparable to the radical step of eliminating the filibuster; they were more in the nature of closing loopholes in existing rules or practices allowing senators to delay the work of the Senate.

The nuclear option being pushed by Senate Majority Leader Frist and his allies is without historical precedent, and would in fact undermine the special deliberative role played by the Senate throughout our nation’s history and damage a central element of our constitutional system of checks and balances. That is why a number of Republican senators have expressed doubts about, or direct opposition to, the nuclear option, as have some conservative commentators. Frist should abandon his destructive plans to undermine the role and working of the Senate, and refocus his energies on encouraging President Bush to engage in consultation and cooperation that would result in judicial nominees capable of receiving genuine bipartisan support.