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Monday, February 11, 2013

Procedures for Considering Changes in Senate Rules

Richard S. Beth
Specialist on Congress and the Legislative Process

This report discusses procedures and related issues involved in considering changes to Senate rules. The Constitution empowers each house of Congress to determine its own rules. The Senate normally considers changes to its Standing Rules in the form of a simple resolution, which (like any ordinary measure) can be adopted by a majority of Senators voting, a quorum being present (“simple majority”). Like most measures, however, such a resolution is debatable. Senate rules place no general limits on how long consideration of a measure may last, and allow such limits to be imposed only by a supermajority vote for cloture. As a result, opponents may be able to prevent the resolution from coming to a vote by filibustering. For changes in Standing Rules, the supermajority requisite for cloture is two-thirds of Senators voting, with a quorum present. Except by unanimous consent, moreover, the Senate can normally take up a resolution changing rules (or any other measure) only by adopting a motion to proceed to consider. A simple majority can adopt this motion, but the motion is itself debatable, so that in order to reach a vote, it may be necessary to obtain a two-thirds supermajority to invoke cloture first on the motion to proceed, then also on the measure itself.

For these reasons, in cases in which opponents are willing to filibuster, it can become necessary, in practice, to obtain supermajority support in order to bring the Senate to the point at which it can vote on a proposal to amend Senate Rules, even though a simple majority can then adopt the proposal itself.

Changes to Standing Rules could also be included in other forms of resolution, or in bills, but any motion to consider a measure containing such provisions is still always debatable, and a twothirds supermajority is still required for cloture. Procedural changes could also be established as standing orders, or as certain other kinds of procedural regulation. A motion to proceed to consider a measure establishing procedural regulations in any such form would also be debatable, but cloture on such a measure would require three-fifths of the full membership of the Senate.

Finally, the Senate may also change its procedures by establishing new precedents that interpret existing rules or other standards differently from before. This might be achieved either by a ruling that directly establishes an altered practice or by one that permits a simple majority to bring the Senate to a vote on a change in rules. If a point of order asserts a new interpretation, the chair will normally overrule it on the basis of existing precedents, but if that decision is appealed to the full Senate, a simple majority could establish the new interpretation by voting to reverse the decision. Appeals are normally debatable, however, so that opponents may be able to prevent any vote to overturn the ruling by filibustering the appeal, unless a supermajority would vote for cloture.

Proceedings that would permit the Senate to reinterpret rules without requiring a supermajority vote in the process have been called the “nuclear option,” or, if implemented through raising a point of order on constitutional grounds, the “constitutional option.” It is not clear that any such form of proceeding can be proposed that would not require violations of existing rules in the process of changing them. Some of the proceedings proposed would require the chair to make a ruling contrary to precedent, or else to submit to the decision of the Senate a settled procedural question on which the chair would routinely rule. Others would require the Senate to entertain a novel motion through which a simple majority could close debate, or would involve disposing of a motion through proceedings that would be in order only if the Senate were already to have approved the motion.

Date of Report: January 22, 2013
Number of Pages: 18
Order Number: R42929
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