The “Constitutional Option”: Beating an Already Dead Horse

There is an increasing amount of confusion about what exactly the constitutional option is, and further, how often it’s invoked to enact rules changes. It’s gained recent momentum as a result of a Senate Rules Committee hearing this past April on the filibuster and cloture that included Gregory Wawro and Sarah Binder (who said political science doesn’t matter?). A law brief prepared for, then Senate Majority Leader, Bill Frist (R-TN) in 2005 claims the constitutional option was the driving factor in previous Senate reforms. In essence this is a legislative tactic employed to reform congressional procedure. Members initially motion, invoking the Article I, Section 5, to consider an amendment of the Senate’s rules. The question at hand is not how the rules will be amended, but whether the motion under which they consider this amendment is valid. In short, is the reason you are using to amend the rules valid? The answer to this question rides on one’s reading of Article 1, Section 5, which states: “Each House may determine the Rules of its Proceedings.” At the heart of this debate challenges that Congress is, constitutionally, a continuing body. The growing consensus is that it is not (see Senate Rules Committee hearing); however, history appears to contradict this claim.

The earliest account I uncovered (through dissertation research) on the constitutional option arose in 1889 as members of the House attempted to wrestle power away from the party leadership. However, the contemporary import of this option is whether it can be applied to the Senate’s cloture rule. After all, invoking the constitutional option presumes that you can reform Senate rules by majority rather than the 60-votes required to cut-off debate. It was invoked by Walsh (D-MT) in 1917, Clinton Anderson (D-NM) tried in 1953 and 1957, Robert Byrd (D-WV) in 1979, and in 2006 with the “nuclear option.” Given all these attempts, how many times was the invoked constitutional option adopted? Zero. Nada. Goose Egg. A losing score in any game other than golf. The number of people who have asked my opinion on this matter. In fact, the motion was never seriously considered. In 1953 it was rejected 70-21. In 1957 it was rejected 55-38. In each instance the motion to reform the rules via the constitution was tabled.

So the next question, derived from the Gold and Gupta memo linked above, is whether the constitutional option led the Senate to reform cloture? Again, this answer is: not so much… A good example of this is the 1959 reform. Cloture was slightly modified from two-thirds of the entire chamber to two-thirds of those “present and voting.” While they give a lot of credit to the constitutional option, evidence suggests the contrary. The constitutional option didn’t create the impetus for reform, but was merely apart of broader frustration with Senate inefficiency. Dating back to 1942, members and political scientists alike (most notably George Galloway and the APSA Committee on Congress that studied legislative reform for the 1946 Legislative Reorganization Act) lobbied to reform cloture (Washington Post, March 27th, 1942). Cloture reform wasn’t included in the 1946 reforms, but it remained a prominent target of members. However, the constitutional option was not apart of their reform efforts. In fact, the constitutional option represents less than 4% of the public attempts to reform Senate cloture (based on public appeals to reform cloture from 1940-1959). The constitutional option grew out of member’s inability to make any headway toward reform and not what drove the chamber toward reform. Similarly, other reforms occurred without mention of the constitutional option at all. The 1975 reform to rule 22, the most drastic change to the rule since its inception, was passed without a single mention to the Constitution. So in short, this option was an extreme reaction to growing frustration with the filibuster rather than the tactic that generated reform. During both these periods, the filibuster got a lot of attention but the constitutional option was neither a primary force nor the actual trigger that later reformed cloture.

The interesting twist in this story is that in that 1959 reform members included a clause that the rule shall continue from Senate to Senate unless otherwise reformed. In fact, there is a rule on the books going back as far as 1863 that states that the rules from one chamber shall continue unless otherwise amended (not via the constitutional option might I add. Washington Post November 18th, 1889). Not to mention that Senate Rule V currently states that the existing rules shall pass to the next Senate unless amended. These rules and precedents appear to undermine the validity of the constitutional option. So again, the question is: does the Constitution trump the rules of Congress?

I’ll give you my hunch and let you figure out a definitive answer for yourself. After all, the answer to this question depends on your reading of “Each House” in Article I. Does “Each House” imply each new Congress or each chamber? It seems that every one has a different reading of the Constitution these days, so I’ll let you figure that out for yourself. But I’m inclined to agree with the latter. The Framers were understandably vague on this issue. With the exception of the Continental Congresses, they had little legislative experience to guide them. The newly empowered Congress was to govern with more authority than any previous institution. Given the scope and consequence of the new Congress, not to mention the difficulties of the Constitutional Convention, they left the new legislators to figure it out. Since those who “figured it out” continually instituted this precedent in each chamber’s rules, I don’t know that it makes sense say that this rule is somehow void despite their efforts to the contrary.

You’ll likely hear more about this in December and January. Maybe then the constitutional option will finally break through and allow the Senate to reform cloture. Maybe this strange reading of the Constitution will render the chamber a different deliberative complexion. But I doubt it…