Imagine a world where:
* Anti-gun state attorney generals were able to bring “racketeering” lawsuits against gun dealers and gun makers, putting them out of business (97th Congress);
* Gun shows had been effectively outlawed, and gun owners who kept loaded firearms for self-defense were routinely prosecuted (106th Congress);
* “Scary looking” semi-automatic firearms were still banned because pro-gun forces were unable to stop Feinstein & Co. from reauthorizing the Clinton gun ban (108th Congress).
You have just imagined what America would be like without the filibuster.
The reason the Second Amendment is still viable today is, in large part, because of the Senate filibuster.
In 1982, a bill to allow “racketeering” lawsuits against gun dealers and manufacturers was stopped by a pro-gun filibuster.
Eighteen years later, following the Columbine tragedy, a filibuster by New Hampshire Senator Bob Smith stalled legislation to outlaw gun shows, impose lifetime gun bans on kids involved in playground fights, ban semiautomatic imports, and allow prosecution of persons who keep loaded guns for self-protection.
Just last year, supporters of renewing the semiautomatic ban had 52 votes in the Senate. We were able to stop that bill in the Senate -- notwithstanding its majority support -- by threatening to filibuster it.
Now, a gaggle of "conservatives" with no historical memory and no knowledge of the Senate rules are working to do away with the filibuster--the Senate's tradition of unlimited debate. The ostensible purpose is to allow the Senate to rubber stamp the Bush Administration's judicial nominees.
But make no mistake: You cannot eliminate the judicial filibuster without effectively destroying the legislative filibuster as well.
Recently, some Republicans have advocated a so-called “nuclear option” to obliterate Senate procedure and allow the Senate to rubber stamp the Bush administration’s judicial nominees.
These “nuclear option” proposals fall into four basic categories:
(1) The “constitutional point of order,” where
Republicans seek a ruling that nomination filibusters
are unconstitutional.
(2) The “non-continuing-body” option, which would
invoke a ruling that the Senate has no standing rules
that inherently carry over from the previous session.
(3) The “fraud option,” involving a bogus point
of order muscled through with the help of a presiding
officer and Senate majority willing to join in the
fraud.
(4) A special order or temporary or permanent
rules change.
Options (1) and (4) can be filibustered and, hence, appear to have been abandoned by “nuclear option” proponents.
Neither option (2) nor option (3) has any precedent in Senate procedure. Furthermore, it is impossible to invoke either of these options without effectively abolishing the legislative filibuster as well.
Furthermore, under option (2) –- the “non-continuing-body” option –- the rules which would not apply to the 109th Congress unless ratified by the Senate –- and may not apply even if ratified –- include the Senate’s ethics rules:
-Rule XXXIV (requiring public financial disclosure);
-Rule XXXV (limiting gifts);
-Rule XXXVII (governing conflicts of interest);
-Rule XXXVIII (prohibiting unofficial office
accounts);
-Rule XXXIX (governing foreign travel);
-Rule XL (governing the franking privilege and the use
of taxpayer-funded radio and television studios);
-Rule XLI (governing political involvement by Senate
employees);
-Rule XLII (prohibiting discrimination on the basis of
race, color, religion, sex, national origin, age, or
physical handicap);
-Rule XLIII (governing improper influence by senators
on the executive branch).
Given that the price tag is abolition of the Senate legislative filibuster rules, Supreme Court nominees by modern Republican presidents have been, to say the least, a “mixed bag.” Eisenhower’s first nominee was Chief Justice Earl Warren –- architect of modern liberal jurisprudence. Nixon’s picks, like Nixon himself, frequently got entangled in scandal. But his first successful associate justice nominee was Harry Blackmun, who was certainly no conservative. Ford gave us one justice: John Paul Stevens –- one of the four members of the court’s liberal wing. Reagan’s first justice was Sandra Day O’Connor, whose nomination sent conservatives into a conclave contemplating, ironically, a filibuster. And George H. W. Bush? His first nominee was David Souter, who, with Stevens, forms half of the court’s current liberal wing.
Those who would abolish the legislative filibuster in order to confirm men and women like these need to understand that the fact that we have succeeded in defeating comprehensive federal gun control is due to the filibuster.
Over the past year, some elements of the conservative movement have pushed, with increasing insistence, for the use of radical procedures to overcome Senate Democratic resistance to certain Bush administration judicial nominees.
Dubbed “the nuclear option,” this “option” is actually a bundle of at least four strategies, with each approach differing significantly from the others.
The “nuclear options” do have one thing in common: they all represent means by which Bush allies would eliminate filibusters of presidential nominees.
This Senate tradition of “unlimited debate” makes the Senate unique among the world’s legislative bodies. This is because it allows senators –- with a wide variety of exceptions and stipulations –- to talk as long as they wish with respect to any matter –- and to offer whatever amendments they wish, whether relevant or irrelevant.
Herein lies the problem. With minority Democrats controlling 49 votes in the 108th Congress (with the help of Vermont Independent Jim Jeffords) and 45 votes in the 109th Congress, they have a formidable ability to wage “talk filibusters” against judicial nominations unacceptable to them.
Under Rule XXII of the Standing Rules of the Senate, there is a procedure to limit further debate to one hour per senator –- and 30 hours total. The procedure is invoked by a “cloture petition” signed by at least 16 senators. Two session-days later, one hour after convening and after ascertaining a quorum, the Senate proceeds to vote on whether to “invoke cloture.” If three-fifths of those senators duly “chosen and sworn” (or two-thirds of those present and voting in the case of rules changes) cast their votes in the affirmative, cloture is deemed to have been “invoked.”
Thereafter, each senator is limited to one hour of debate, and total debate is limited to 30 hours. In addition, after cloture has been invoked, no amendment may be offered which is non-germane, dilatory, or “untimely” (i.e., not filed by 1:00 p.m. the day after the cloture petition is filed in the case of “first degree amendments” –- and one hour prior to voting to invoke cloture in the case of “second degree amendments”). A senator can obtain up to two hours not used by other senators, if the time is yielded by them through the majority or minority leader or through either of the managers of the pending matter.
Finally, although the 30 total hours includes time taken by quorum calls and roll call votes, the individual one hour does not.
Thus, under Rule XXII, a filibuster can normally be brought to a (relatively) quick end through the votes of sixty senators.
Unfortunately, during the 108th Congress, a fairly cohesive block of Senate Democrats refused to give the 51 Republicans the addition nine (or more) votes needed to invoke cloture on ten appellate judicial nominees.
As a result, ten appellate judges out of hundreds of judicial nominees put forth by Bush were blocked by actual or threatened filibusters.
Perhaps even more important in the minds of some, the blocked nominees –- viewed by many as being the most conservative –- are widely regarded as a “dry run” for the one to four Supreme Court nominations expected over the next four years.
All of this has frustrated some conservatives and led to calls for extreme measures.
The term “nuclear option” has been used to describe at least four radical strategies. Briefly, they are these:
OPTION 1: THE CONSTITUTIONAL POINT OF ORDER
WHAT IT IS: Under this option, Majority Leader Bill Frist (R.-Tenn.) would seek recognition after debate had proceeded for awhile on a controversial nominee. He would then say something like this: “Mr. President, I raise the point of order that further debate is unconstitutional under Article II of the Constitution of the United States.”
Under this scenario, the presiding officer would then rule something like this: “The point of order is well taken. Further debate is unconstitutional.”
Unless 51 senators vote to overturn the ruling of the chair, supporters of this scenario contend that the judicial filibuster will have been effectively eliminated.
BRIEFLY, WHAT’S WRONG WITH THIS?:
(1) “Under the uniform practices of the Senate, whenever a question of constitutionality is raised, the chair submits the question to the Senate for decision.” [Floyd M. Riddick, Senate Procedure (1981), pp. 538-9]
(2) Constitutional points of order are filibusterable, which means it would take sixty votes to force the issue.
(3) If nomination filibusters are, by implication, unconstitutional, legislative filibusters are even more clearly unconstitutional.
OPTION 2: THE “NON-CONTINUING-BODY” OPTION
WHAT IT IS: On a number of occasions over the past century, senators seeking to pass stalled legislation have sought to establish a precedent that the Senate is not a “continuing body” (i.e., that, despite the fact that two-thirds of the Senate remains in place from one Congress to the next, the Senate does not continue as a continuing entity into a new Congress).
Thus, the Standing Rules of the Senate case to exist, as such.
So, in the absence of rules, how does the Senate operate, even for the purpose of adopting rules?
Some proponents argue that only the sparse procedural requirements of the Constitution bind the Senate. Others argue it would be governed by Robert’s Rules of Order –- or Jefferson’s Manual.
Perhaps the sleaziest contrivance would allow the majority leader to implicitly ratify selective standing rules from the previous Congress –- a fiction which allows the option to be invoked, even though the beginning of the Congress has long passed. The list of “implicitly ratified” rules would presumably be somewhere in the majority leader’s brain –- to be “revealed” to the Senate as it became convenient.
BRIEFLY, WHAT’S WRONG WITH THIS?:
(1) The strategy is fraudulent. It was rejected by the Founders when they failed to adopt new Senate rules at the beginning of the 2nd Congress. It is contrary to Rule V of the Standing Rules of the Senate, which states, in part, “The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.”
The “non-continuing-body” theory was pointedly rejected by the Senate In 1953, 1957, 1959, 1963, 1967, and 1969. And, even during its “high-water mark” when it was used to attack Republicans in 1975, the Senate merely refused, initially, to table a point of order raised against it –- an action which, suffice it to say, is different from adoption.
As for the legal opinions that the Senate is not a continuing body by those respected repositories of legal thought, Richard M. Nixon and Nelson Rockefeller, it is enough to say that any legal or parliamentary significance of their written opinions –- both of which were explicitly rejected by a Senate vote –- is easily dispatched by a single sentence in Riddick: “Under the precedents of the Senate, the Presiding Officer has no authority to pass upon a constitutional question, but must submit it to the Senate for its decision.” [Riddick, p. 539]
(2) The “best case” scenario under the “non-continuing-body” option is that, at the beginning of each and every Congress, the Senate rules are whatever the majority leader –- whether Republican or Democrat –- says they are. It is hard to imagine that the legislative filibuster will survive long under this regime –- or the unlimited right to offer amendments. And with the death of these minority protections, “hold letters” will become meaningless as well.
(3) Incidentally, if there are no rules, there are no ethics rules either. And –- good luck proceeding against a senator based on ethics standards which only exist because they have been ratified by –- and are thus available only in –- the majority leader’s brain.
OPTION 3: THE “FRAUD OPTION”
WHAT IT IS: The third “nuclear option” would be triggered if the majority leader raised a bogus and unsubstantiated point of order which clearly contradicted the written rules of the Senate –- with the expectation that the presiding officer and a majority of the Senate would collaborate in the fraud.
Unlike a constitutional point of order, the chair has the discretion to entertain –- or not entertain –- debate on a regular point of order. So it would not be filibusterable in the same sense, although there is still a possibility that a “preferential motion filibuster” could be conducted.
At some point, the chair would presumably make a ruling which contradicted the plain text of Rule XXII of the Standing Rules of the Senate, which would then be eliminated, in whole or in part, with little or no debate, by fifty Senate votes –- with minority senators presumably needing 51 senators to successfully appeal the ruling of the chair.
BRIEFLY, WHAT’S WRONG WITH THAT?:
(1) If any Senate rule, at any time, can be eliminated, without debate, by fifty senators, the Senate rules –- all of them –- effectively become meaningless for any context in which they would matter.
The legislative filibuster will die the first time it becomes important –- perhaps in connection with Social Security reform (which by then will have no doubt become a massive entitlement bailout with a privatization pilot program), perhaps after the Democrats regain control of the Senate in 2007 or 2009.
The demise of the unlimited right to offer amendments to most bills without unanimous consent agreements will soon follow.
The “hold letter” –- which relies for its force on the implicit threat to filibuster and/or offer amendments –- will become meaningless, probably sooner rather than later.
(2) Despite misrepresentations to the contrary, the “fraud option” has no precedent in Senate procedure. Examples held up as precedents will be discussed in great detail at a later point.
(3) Although a point of order can be decided without debate, an appeal to the ruling of the chair is fully debatable. As a practical matter this would mean that supporters would need 51 votes to table the appeal to the ruling of the chair, rather than fifty votes (because a tabling motion is non-debatable).
OPTION 4: SPECIAL ORDERS OR RULES CHANGES
WHAT IT IS: The Senate can use its procedures at any time to actually change the text of its rules or to create temporary or permanent exceptions to them without changing the actual text. This second category is frequently called “special orders.”
With certain limited exceptions, the Senate can normally suspend any rule by unanimous agreement. These “unanimous consent requests” occur when any senator addresses the chair and says: “Mr. President, I ask unanimous consent that...” If no senator objects, the chair grants the request with the words: “Without objection, it is so ordered.” This procedure is used by the Senate to consider virtually all legislation and to conduct virtually all of its business. Thus, a single angry senator or faction of senators could throw the Senate into chaos by objecting to virtually all unanimous consent agreements.
Some things cannot be done by unanimous consent: Rule XII –- dealing with voting procedures –- explicitly forbids “any request to suspend it by unanimous consent.”
In addition, unanimous consent agreements cannot be used to suspend statutes –- such as certain provisions of the 1974 Budget Act –- or to act in violation of constitutional requirements –- including Article I, Section 5’s requirement that a “sufficient second” consist of “one fifth of those present.” (Ironically, this “sufficient second” provision –- one of the few actually contained in the Constitution –- is probably the Senate’s most frequently ignored rule.)
In addition, the Senate may suspend its rules by a two-thirds vote with one day’s notice –- or it may change the text of the rules by majority vote. Under Rule XXII, however, a change is subject to a filibuster which may be ended only by two-thirds of those senators present and voting.
Either a special order or a textual rule change can be offered by majority vote to virtually any legislation as an amendment, subject to the two-thirds “cloture requirement.” During his tenure as majority leader, West Virginia Democrat Robert Byrd argued that these amendments are binding on the Senate if the bill passes the Senate, even if it is not subsequently signed into law.
WHAT’S WRONG WITH THIS?: Although this fourth option does not present the huge ethical and precedential problems of the other alternatives, it is not among the favored options for one simple reason: breaking the inevitable filibuster would require two-thirds of those senators present and voting –- in a high-profile vote for which virtually all senators would be present. If Republicans have the 67 votes necessary to prevail under this strategy, they presumably have the sixty votes necessary to invoke cloture on a nomination.
BACKGROUND
Filibusters have been a feature of the United States Senate since the administration of Thomas Jefferson.
In 1806 –- when the Senate revised its rules for the first time since the First Congress (one of only seven general revisions) –- provisions of the rules allowing the Senate to “move the previous question” were pointedly deleted. This left no mechanism for terminating debate.
In the years between 1806 and 1837, it is impossible for any modern historian to determine how many bills were not considered as a result of private threats of “extended debate” or ominous long-winded speeches.
We do know that, in 1837, a group of senators “talked and talked” to prevent a group of Jacksonians from passing a motion to erase the censure of Andrew Jackson from the Senate journal.
As an activist judiciary has become an increasing reality of the last half of the Twentieth Century, nomination filibusters and nomination filibuster threats –- particularly by conservative Republicans –- have become increasingly prevalent.
Certainly the most famous was the 1968 filibuster of the motion to proceed to the nomination of Abe Fortas to be Chief Justice –- a filibuster which delayed the Senate long enough to set the stage for the defeat of his nomination on an up-and-down vote.
But since that time, conservatives have used or threatened to use filibusters hundreds of times to block liberal nominees –- both judicial and non-judicial –- from presidents of both parties –- or to attempt to do so.
Perhaps the paradigm for the conservatives’ use of filibuster threats to block liberal nominees came, ironically, at the beginning of the Reagan administration. Then, conservatives used a “hold letter” -- or filibuster threat –- to block the nomination of Andrew Frey to the District of Columbia Court of Appeals by the Reagan administration. Frey –- although an official in the Reagan Justice Department –- was a political liberal who had contributed to the National Abortion Rights Action League (NARAL) and Handgun Control. By threatening a filibuster, had the nomination reached the Senate floor, conservatives forced the withdrawal of Frey’s nomination.
At a time when some in the Reagan administration were pushing liberal “mainstream” candidates like Judith Whitaker, this highly symbolic victory set a tone which influenced other aspects of the “vetting” process.
The use of filibuster threats against judicial and non-judicial nominations –- through “hold letters” and actual floor talk-a-thons –- reached a crescendo during the Clinton administration.
For example, the nomination of Henry Foster to be Surgeon General was killed when supporters failed to invoke cloture on his nomination by a 57-to-43 vote –- with 43 Republicans voting to continue the filibuster against Foster’s confirmation.
The Foster nomination is significant because exactly the same phrase in Article II of the Constitution which gives the president the power to nominate federal judges also gives him the power to nominate other federal officials like Foster:
[H]e shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States...
Sitting Republicans who did not feel this clause precluded filibusters against Clinton nominees include: Bennett, Bond, Burns, Cochran, Craig, DeWine, Domenici, Grassley, Gregg, Hatch, Hutchison, Inhofe, Kyl, Lott, Lugar, McCain, McConnell, Santorum, Shelby, Stevens, Thomas, and Warner.
In the waning years of Clinton’s second term, a group of Senate Steering Committee members, led by James Inhofe (R.-Okla.), issued a comprehensive “hold letter” against Clinton judicial picks, and New Hampshire Senator Bob Smith actually staged a mini-filibuster of the nominations of Richard Paez and Marsha Berzon, subsequent to that letter.
Interestingly, fourteen Republican senators –- including Brownback, Bunning, Craig, DeWine, Enzi, Frist, Inhofe, and Shelby –- had no problem voting to continue to conduct a filibuster against Paez’ judicial nomination.
Thirteen Republicans –- including Brownback, Bunning, Craig, DeWine, Enzi, Inhofe, and Shelby –- voted to continue the filibuster against Berzon’s judicial nomination.
Perhaps equally interesting, current Rules Committee Chairman Trent Lott –- presently leading the charge against the “liberal” judiciary –- filed the cloture petitions forcing confirmation of these two liberal, anti-gun liberal jurists.
THE PLAYERS
MARTIN B. GOLD: Certainly, the intellectual groundwork for any “nuclear option” comes from an article written for the Harvard Journal of Law and Public Policy [Volume 28, Issue 1] by Martin Gold and Dimple Gupta, entitled “The Constitutional Option to Change Senate Rules and Procedures: A Majoritarian Means to Overcome the Filibuster.”
As the title suggests, the article is not a blueprint for ending the filibuster of nominations. In the article’s 68 pages, nomination filibusters are mentioned only fleetingly in connection with the expansion of Rule XXII to cover them.
Rather, the article is a blueprint for the elimination of all Senate filibusters. And, in fact, all of the precedents Gold glowingly recommends –- from 1917 to the late 1980’s –- were efforts to eliminate the legislative filibuster. And virtually all of them (with the conspicuous exception of the Abourezk/Metzenbaum filibuster of natural gas deregulation) were efforts to silence conservatives.
Gold’s distaste for the legislative filibuster can hardly come as a surprise. Gold worked for liberal Republican Mark Hatfield (R.-Ore.) from 1972 to 1976 and for Republican Leader Howard Baker (R.-Tenn.) from 1979 to 1982.
In 1982, Baker kept the Senate in session until Christmas eve in order to crush a conservative filibuster of the gas tax increase.
Also during his tenure, Baker pioneered the use of the “reconciliation” process under the 1974 Budget Act to enact a once-a-year budget bill which circumvented the Senate filibuster rule. Perfected to a fine science by successor Bob Dole (R.-Kans.), this procedure became the mechanism for annual non-filibusterable tax increases –- garnering Dole the unenviable appellation “tax collector for the welfare state.” It is, in part, as a result of this procedure that the federal budget has been allowed to rise from roughly $700 billion a year at the beginning of the Reagan administration to nearly $2.6 trillion in fiscal year 2006 –- a nearly two-fold increase in the size of government in a quarter of a century.
The co-author, Dimple Gupta, by contrast, has apparently never worked for the Senate.
OPTION 1: THE CONSTITUTIONAL POINT OF ORDER
WHAT IT IS: The argument that the nomination filibuster is unconstitutional is inferential, rather than direct. It revolves around the fact that Article II, Section 2, Clause 2, inter alia, specifies a two-thirds vote for the ratification of treaties, but makes no specification for the vote by which the Senate gives its “Advice and Consent.”
The procedure for exercising the option is fairly straightforward: Majority Leader Bill Frist (R.-Tenn.) would seek recognition after debate had proceeded for awhile on a controversial nominee. He would then say something like this: “Mr. President, I raise the point of order that further debate is unconstitutional under Article II of the Constitution of the United States.”
Under this scenario, the presiding officer would then rule something like this: “The point of order is well taken. Further debate is unconstitutional.”
Unless 51 senators vote to overturn the ruling of the chair, supporters of this option contend that the judicial filibuster will have been effectively eliminated.
WHAT’S WRONG WITH THIS?: (1) “Under the uniform practices of the Senate, whenever a question of constitutionality is raised, the chair submits the question to the Senate for decision.” [Floyd M. Riddick, Senate Procedure (1981), pp. 538-9] Once submitted to the Senate, the point of order is fully debatable (i.e., filibusterable). Thus, unless the Senate wants to abolish all its rules by fiat, the point of order would simply give rise to another filibuster, which could be shut down only if cloture were filed and the Republicans garnered sixty votes to invoke it.
(2) If nomination filibusters are, by implication, unconstitutional, legislative filibusters are even more clearly unconstitutional.
In general Senate legislative business, Article I, Section 3, Clause 4, makes the Vice President the President of the Senate and gives him the tie-breaking vote if “they be equally divided.” The fact that the Vice President decides the issue in the event of a tie makes it clear –- and not just by inference –- that the Senate is required to conduct its legislative business by majority vote.
Article I, Section 5, Clause 2, empowers each House to “determine the Rules of its Proceedings,” and it has always been assumed that the Senate’s filibuster and cloture rules are protected by this rulemaking power. However, if Article I, Section 5, does not allow the Senate to authorize nomination filibusters, which are not explicitly prohibited by the Constitution, then it certainly does not allow the Senate to authorize legislative filibusters, which could be considered to be contrary to Article I, Section 3.
Most of the proponents of the “nuclear option” are fairly candid in admitting that the demise of the legislative filibuster is either an unavoidable consequence of their strategy –- or even their real goal.
The Gold article is a blueprint for eliminating the legislative filibuster –- not the nomination filibuster. And all of the precedents Gold cites approvingly are efforts to achieve that end.
Former Frist staffer Manuel Miranda stated in a February 14, 2005, article in Human Events: “Today filibusters are, in any case, far from the bulwark they once were. ... Moreover, it is hard to imagine what single piece of legislation conservatives fear so much that overcomes concern for the independence of the judiciary.”
Had Miranda had a little more experience in the Senate, he would have realized that proposals to establish federal racketeering lawsuits against gun manufacturers, to effectively outlaw gun shows, to create lifetime gun bans for playground fights, and to outlaw keeping a loaded gun for personal protection were all killed between 1981 and 2000 through the use of filibusters.
(3) Given that twenty-six current Republican members of the Senate voted to continue filibusters against Clinton judicial nominees Richard Paez and Marsha Berzon and Clinton Surgeon General nominee Henry Foster, any protestations that the filibusters they once supported are somehow unconstitutional –- now that their party has come to power –- would seem to be, at the very least, disingenuous.
OPTION 2: THE “NON-CONTINUING-BODY” OPTION
WHAT IT IS: On a number of occasions over the past half-century, senators seeking to pass stalled legislation have sought to establish a precedent that the Senate is not a “continuing body” (i.e., that, despite the fact that two-thirds of the Senate remains in place from one Congress to the next, the Senate does not continue as a continuing entity into a new Congress).
The effect of such a determination is that the Standing Rules of the Senate –- all of them –- cease to exist, as such, at the end of each Congress.
So, in the absence of rules, how does the Senate operate, even for the purpose of adopting rules?
Some proponents argue that only the sparse procedural requirements of the Constitution bind the Senate. The Constitution requires, for example that each senator have one vote [Article I, Section 3, Clause 1], that the Vice President cast the tie-breaking vote when “they be equally divided” [Article I, Section 3, Clause 4], that a majority constitutes a quorum [Article I, Section 5, Clause 1], and that a “sufficient second” constitutes one-fifth of those present [Article I, Section 5, Clause 3]. Other than these requirements, the Constitution largely leaves it to the Senate to set its remaining rules. And, suffice it to say, these constitutional provisions, in and of themselves, would provide an insufficient framework even for a session convened for the sole purpose of adopting Senate rules –- let alone a session convened for the purpose of conducting legislative or executive business.
Others argue the Senate would be governed by Robert’s Rules of Order –- a proposition which would have been, to say the least, surprising to the Founders –- or by Jefferson’s Manual.
Perhaps the sleaziest contrivance would allow the majority leader to implicitly ratify selective standing rules from the previous Congress –- a fiction intended to allow this “non-continuing-body” option to be invoked, even though the beginning of the Congress has long passed.
The list of “implicitly ratified” rules would presumably be in the back of the majority leader’s mind –- to be “revealed” to the Senate as it became convenient. If this were not the case –- and the rules were allowed to lapse until they were subsequently ratified –- then at least one of the ramifications would be that there would be no doubt that the Senate would have to operate without its ethics rules.
In fact –-
-the notion that even the most senior majority leader
has a comprehensive notion of which rules
“implicitly” continue and which do not is a clear
fiction; and
-given that Majority Leader Frist has already
indicated that he has not ratified the Senate’s
rules, this means that –- if the non-continuing-body
option is involved –- the Senate’s rules on bribery,
gifts, racism, foreign travel, conflicts of interest,
undue influence, financial disclosure, etc., have
in fact lapsed.
WHAT’S WRONG WITH THIS?:
(1) The strategy is fraudulent. It was rejected by the Founders when they failed to adopt new Senate rules at the beginning of the 2nd Congress. It is contrary to Rule V of the Standing Rules of the Senate, which states, in part, “The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.”
The “non-continuing-body” theory was pointedly rejected by the Senate in 1953, 1957, 1959, 1963, 1967, and 1969. On January 7, 1953, the Senate, by a vote of 70-to-21, tabled a motion to consider adoption of new standing rules under the “nuclear option,” thereby “ending [the] attempt to employ [this] option...” On January 4, 1957, the Senate, by a vote of 55-to-38, tabled a similar motion to implement the same option. On January 9, 1959, the Senate tabled a motion embodying the “nuclear option” by a 60-to-36 vote. On February 7, 1963, “nuclear option” supporters were defeated, after they failed to garner the two-thirds vote necessary to invoke cloture on their proposal. On January 24, 1967, a similar effort ended with a similar result. And, on March 9, 1969, a third such effort ended in a third such defeat.
Even during its “high-water mark” when the “non-continuing-body” option was used to attack Republicans in 1975, what the Senate did was to (initially) table three points of order raised against the “nuclear option” –- an action which, suffice it to say, is different from adoption. Otherwise, every bill or amendment which survives a budgetary point of order would be deemed to have passed without a Senate vote.
Ultimately, the Senate explicitly reversed its earlier refusal to table the point of order against the “nuclear option” –- killing the option by a 53-to-43 vote and, in the process, repudiating the proponents’ non-binding opinion by Vice President Nelson Rockefeller that the refusal to adopt a particular point of order somehow embodied some greater significance.
Proponents of the “non-continuing-body” option –- for lack of better authority –- cling to legal opinions that the Senate is not a continuing body –- written by Rockefeller and, earlier, by that respected repository of legal thought, Richard M. Nixon. It should be noted that Nixon’s view, like Rockefeller’s, was explicitly rejected by a Senate vote. But, had the Senate remained silent, it is enough to say that any legal or parliamentary significance of Nixon’s written opinion or the opinion of any other Vice President is easily dispatched by a single sentence in Riddick: “Under the precedents of the Senate, the Presiding Officer has no authority to pass upon a constitutional question, but must submit it to the Senate for its decision.” [Riddick, p. 539]
(2) Like any fraud scheme, the “non-continuing-body” option is filled with logical holes:
-If, as in the 109th Congress, the “continuing body”
issue is not raised on January 3, how can the Senate
conduct any business if it has no rules?
-If the Senate has, in fact, been operating under
Robert’s Rules of Order or Jefferson’s Manual for the
first months of the session, why has it been
proceeding in accordance with the Standing Rules of
the Senate, rather than Robert’s Rules of Order or
Jefferson’s Manual?
-If, instead, the Senate has been operating under a
group of “implicitly ratified” rules contained in the
majority leader’s brain, has the majority leader,
factually, engaged in a review of the Senate rules
for these purposes?
(3) This leaves us with a scenario under the “non-continuing-body” option that, at the beginning of each and every Congress, the Senate rules are whatever the majority leader –- whether Republican or Democrat –- says they are. It is hard to imagine that the legislative filibuster will survive long under this regime –- or the unlimited right to offer amendments. And with the death of these minority protections, “hold letters” will become meaningless as well.
Furthermore, this “perils of Pauline” scenario –- where rules guaranteeing senators’ rights to debate and offer amendments are automatically obliterated at the beginning of each Congress unless embraced by the majority leader –- will continue every two years as long as the Senate continues to exist.
(4) Incidentally, much of the Senate’s ethics code –- including prohibitions on bribery, graft, influence peddling and racism –- are contained in the Standing Rules of the Senate.
BY HIS STATEMENT THAT HE HAS NOT IMPLICITLY ADOPTED ANY OF THE SENATE RULES FROM THE 109TH CONGRESS, FRIST HAS ALLOWED ALL OF THESE RULES TO LAPSE. THIS MEANS THAT THERE MAY BE NO SENATE RULES PROHIBITING RACISM, SEX DISCRIMINATION, BRIBERY, INFLUENCE PEDDLING, GRAFT, OR CORRUPTION.
To put it another way: If there are no rules, there are no ethics rules either. And –- good luck proceeding against a senator based on ethics standards which have lapsed –- or which only exist because they have been ratified by –- and are thus available only in –- Bill the majority leader’s brain. Among the rules which have been suspended –- at least for two months, and possibly indefinitely –- are:
-Rule XXXIV (requiring public financial disclosure);
-Rule XXXV (limiting gifts);
-Rule XXXVII (governing conflicts of interest);
-Rule XXXVIII (prohibiting unofficial office
accounts);
-Rule XXXIX (governing foreign travel);
-Rule XL (governing the franking privilege and the use
of taxpayer-funded radio and television studios);
-Rule XLI (governing political involvement by Senate
employees);
-Rule XLII (prohibiting discrimination on the basis of
race, color, religion, sex, national origin, age, or
physical handicap);
-Rule XLIII (governing undue influence by senators
with respect to regulatory agencies, prosecutors, and
other sensitive functions of the executive branch).
(5) This brings up another point: Proponents of this option have, unthinkingly, embraced the notion that rules which no longer exist can be “implicitly” resurrected. But, should 51 senators decide to the contrary, there is nothing inherently true –- or even logical –- about the notion that non-existent rules can be created without a formal vote of the Senate –- much less that they can be created “implicitly” by a single senator. Furthermore, under this scenario, there is nothing which inherently distinguishes the “implicit” adoption of non-existent rules from a previous Congress from “implicit” adoption of rules that never existed.
Hence, if the “non-continuing-body” scenario is adopted, it is almost certain that the Senate ethics rules governing gifts, racism, etc., lapsed between adjournment sine die and January 3 (i.e., “Christmas”). It is almost as certain that they lapsed between January 3 and whatever date they are explicitly ratified by Frist on the Senate floor. And it is possible they can never be ratified, except by a vote of the Senate.
Finally, in the Wild West majoritarian tableaux which option proponents envision, every rule –- including every ethics rule –- is only one disingenuous vote away from oblivion.
(6) If the Senate ever required judicial enforcement of a sanction against a senator under the lapsed (even if subsequently ratified) ethics rules of the Senate, it is fairly certain that the courts will not enforce the lapsed rules during their period of non-existence –- and it may be that they will find it unconstitutional to sanction or expel a senator for transgressions on a list which either doesn’t exist or is available only in the majority leader’s mind.
While it is possible that –- on a serious sanction –- the courts would defer to the Senate under the “political question doctrine,” Baker v. Carr, 369 U.S. 186 (1962), demonstrates that that legal doctrine has serious limits.
OPTION 3: THE “FRAUD OPTION”
WHAT IT IS: The third “nuclear option” would be triggered if the majority leader raised a bogus and unsubstantiated point of order which clearly contradicted the written rules of the Senate –- with the expectation that the presiding officer and a majority of the Senate would collaborate in the fraud.
Unlike a constitutional point of order, the chair has the discretion to entertain –- or not entertain –- debate on a regular point of order. So it would not be filibusterable in the same sense, although there is still a possibility that a “preferential motion filibuster” could be conducted.
At some point, the chair would presumably make a ruling which contradicted the plain text of Rule XXII of the Standing Rules of the Senate, which would then be eliminated, in whole or in part, with little or no debate, by fifty Senate votes –- with minority senators presumably needing 51 senators to successfully appeal the ruling of the chair.
WHAT’S WRONG WITH THAT?:
(1) If any Senate rule, at any time, can be eliminated, without debate, by fifty senators, the Senate rules –- all of them –- effectively become meaningless in any context in which they would matter.
The legislative filibuster will die the first time it becomes important –- perhaps in connection with Social Security reform, perhaps after the Democrats regain control of the Senate.
The unlimited right to offer amendments to most bills without unanimous consent agreements will soon follow.
The “hold letter” –- which relies for its force on the implicit threat to filibuster and/or offer amendments –- will become meaningless, probably sooner rather than later.
(2) Although a point of order can be decided without debate, an appeal to the ruling of the chair is fully debatable. As a practical matter this would mean that supporters would need 51 votes to table the appeal to the ruling of the chair, rather than fifty votes (because a tabling motion is non-debatable).
(3) Despite misrepresentations to the contrary, the “fraud option” has no precedent in Senate procedure. Because these misrepresentations are at the center of the “nuclear option” case, we will now address them in excruciating detail:
Few conservatives are fans of Senator Robert C. Byrd (D.-W.V.). He was sometimes frightening in his use of power in order to achieve his legislative goals.
Few who were present will forget that Byrd had arrest warrants issued for Republican senators in order to pass partisan campaign “reform” legislation designed to put the GOP in permanent minority status. At least one senator was injured by police during his arrest –- and then physically carried into the Senate chamber.
But even Byrd –- for all of his flaws –- did not attempt to raise a fraudulent point of order in order to overturn the explicit provisions of the Standing Rules of the Senate. Rather, Byrd created precedents which operated in the interstices of the Senate rules –- dealing with issues the rules did not explicitly address.
This is hardly a defense of Byrd’s terrifying use of power –- which sometimes approached lawlessness. But near-lawlessness is different from total lawlessness.
And, as often as they are cited by those who fail to understand them, none of the four Byrd precedents cited as precursors of the use of the “nuclear option” pass muster for those purposes:
(1) THE DEMISE OF THE POST-CLOTURE AMENDMENT FILIBUSTER
BACKGROUND: Under Rule XXII of the Standing Rules of the Senate, after cloture has been invoked, each senator is limited to one hour of debate, and total debate time is also now limited.
The problem is that a senator’s one hour of debate time does not include the time spent on roll call votes and quorum calls demanded by that senator.
The result was that, although cloture had been invoked, two senators were able to tie up the body with virtually limitless post-cloture debate.
WHAT BYRD DID: Byrd did three things:
First, he raised a point of order demanding that the chair take the initiative in ruling out of order amendments which were prohibited after cloture under Rule XXII because they were “dilatory” (i.e., with no legal effect), “non-germane,” or untimely.
While conservative may want to think twice about this sort of tactic, two facts remain: (1) There is nothing in Rule XXII or any of the other Senate rules which would prohibit the chair from spontaneously raising post-cloture points of order. (2) Since Rule XXII was revised and reenacted only two years earlier, there was no precedent explicitly contradicting this interpretation of this newly enacted rule.
Second, Byrd ordered a “star print” of the underlying bill, which changed the lineation. Thus, assume a hypothetical Abourezk amendment read: “On page 54, line 8, strike the word “two”.” Because the line numbers had been changed by the “star print,” the word “two” no longer appeared on page 54, line 8. So the amendment now met the textbook definition of “dilatory,” because it had no legal effect.
Thus, Byrd’s second move –- while deserving our condemnation –- violated neither Senate rules nor precedents.
Finally, Byrd would obtain a ruling that one or more amendments were out of order –- and then would use his privileged recognition (as leader) to regain the floor and challenge one or more additional amendments. Because additional Senate “business” had transpired as a result of the second challenge, it was no longer in order to challenge the ruling of the chair with respect to the first set of amendments.
Gold suggests, on page 264, that Byrd had lied to Baker, Abourezk, and Edmund Muskie (D.-Me.) about giving the filibusterers an opportunity to challenge such points of order.
But, without defending Byrd’s actions, the fact is that his procedural moves were consistent with both Senate precedents and the Standing Rules of the Senate.
(2) LIMITATION OF THE GERMANENESS DEFENSE
BACKGROUND: Rule XVI of the Standing Rules of the Senate prohibits Senate floor amendments to appropriations bills which are “legislative” in nature –- as opposed to amendments raising or lowering the spending figures (which are the appropriate province of these money bills).
There is one important exception to the "no-legislative-amendments-on-an-approrpriations-bill" rule: that exception is called the “germaneness defense.”
The theory behind the “germaneness defense” is this: in cases where the House has already included a block of legislation in its version of an appropriations bill, the Senate shouldn’t be put at a disadvantage in House/Senate conference by being prohibited from coming up with its own proposal on the same legislative subject.
Therefore, if a Senate legislative amendment is germane to House legislative language on an appropriations bill, the sponsor can say, when the amendment is challenged: “Mr. President, I raise the defense of germaneness.” The chair then is required to put the question of germaneness to the Senate.
Under Rule XVI, “questions of relevancy ... shall be submitted to the Senate.”
But what happens when there is no legislative House language to which the Senate amendment is arguably germane (and, therefore, arguably, no “question of relevancy” whatsoever)? To put it another way, what happens when the senator raising the germaneness defense has no case –- and is obviously asking the Senate to vote for a proposition that could not conceivably be true?
In this case, must the chair put the question to the Senate under Rule XVI? Or is the language in Rule XVI not applicable because there is no possible “question of relevancy”?
WHAT BYRD DID: This question was raised in 1979, when Senator Bill Armstrong (R.-Colo.), on November 9, raised the germaneness defense with respect to his amendment to lift the military pay cap.
Byrd responded by raising a point of order that “there is no House language to which the amendment could be germane...”
This had never been done before, and conservatives may want to think twice before holding this expansive ruling up as a precedent which Senate Republicans should seek to use as a model.
Nevertheless, without attempting to defend Robert Byrd, there is certainly an issue of whether a “question of relevancy” exists in a case where there is no conceivable argument for relevancy.
There was also the question, in 1979, of whether the Senate should be invited to vote for a clearly fraudulent proposition out of political motives –- as, ironically, Frist is now encouraging the Senate to do through his support for this version of the “nuclear option.”
Finally, although it would be contrary to Senate precedent, it would have been consistent with the strict language of the written rules to limit the term “questions of relevancy” to the rule’s prohibition of amendments “not germane or relevant” –- and not to apply it to the language in the rule giving rise to the defense of germaneness, which does not use the word “relevancy” at all. Such an interpretation could surely be justified by the fact that, under the Senate rules, “germaneness” and “relevancy” are frequently different standards invoking different tests.
The bottom line? This is a sad precedent which we should not be seeking to use as a model. But the notion that it contradicts a single word of Rule XVI is simply erroneous.
(3) THE FUSION OF THE MOTION TO PROCEED TO EXECUTIVE BUSINESS WITH THE MOTION TO PROCEED TO A NOMINATION
BACKGROUND: A motion to proceed to executive session to consider nominations and/or treaties is non-debatable in the Senate. However, a motion to proceed to a particular nomination is fully debatable.
So, is it possible to combine a motion to proceed to the executive calendar with a motion to proceed to a specific item of executive business? And, if so, is the new combined motion debatable because a motion to proceed to a nomination is debatable? Or is it non-debatable because the motion to proceed to executive session is non-debatable?
WHAT BYRD DID: On March 5, 1980, Byrd made a combined motion to go into executive session and to move directly to the nomination of Robert White to be ambassador to El Salvador.
Although the chair upheld a point of order by Jesse Helms (R.-N.C.) challenging this procedure, the Senate overturned the ruling of the chair by an almost party-line vote of 38-to-54.
Once again, we have a corrupt and unfortunate precedent which should not be held up as a paradigm for moral behavior.
Nevertheless, the new procedure was not a violation of any rule –- or, for that matter, an unarguable violation of any precedent.
(4) THE ALTERATION OF PROCEDURES EXCUSING SENATORS FROM VOTING
BACKGROUND: During “morning hour,” a motion to proceed to an item of legislative business is non-debatable –- and is therefore non-filibusterable. After morning hour has expired, however, a motion to proceed may be filibustered.
In 1987, in order to prevent the Senate from reaching a non-debatable motion to proceed to a defense funding bill before the expiration of morning hour, a group of Republicans devised a plan:
First, they insisted on a roll call vote on approving the Senate journal. Then, before the result of the journal approval vote was announced, Senator John Warner (R.-Va.) asked to be excused from voting on whether to approve the journal –- on the grounds he had not read the journal.
In accordance with the provisions of Rule XII, the Senate suspended the journal approval vote before announcing the result –- and proceeded to vote on whether to excuse Warner.
Before the results of the Warner vote were announced, however, Senator Dan Quayle (R.-Ind.) asked to be excused from voting on whether Warner should be excused from voting on whether to approve the journal. The Senate, in accordance with Rule XII, set aside the Warner vote before announcing the result –- and proceeded to vote on whether to excuse Quayle.
Before the result of the Quayle vote was announced, however, Senator Steve Symms (R.-Idaho) –- to a rising level of mirth –- asked to be excused from voting on whether Quayle should be excused from voting on whether Warner should be excused from voting on whether to approve the journal.
Warner, Quayle, and Symms achieved their objective: morning hour expired.
However, for the remainder of the day, the Senate went through various convolutions over the legality of what had happened.
WHAT BYRD DID:
(1) Byrd established his right to raise a point of order on voting procedures while a roll call vote was still pending. While perhaps unfortunate, this ruling was not contrary to the provisions of Rule XII. Indeed, senators regularly interrupt roll call votes to raise points of order that the Senate is not in order.
(2) Byrd established that an explanation for not voting under Rule XII may not go on forever –- a ruling not contradicted by Rule XII.
(3) Byrd established that repeated requests to be excused from voting on approving the journal –- transparently done for the purpose of delay –- could be ruled out of order.
Once again, this is not a precedent which should be held up as a paradigm for the way the Senate should do business. However, conceding that this may be the single most troubling precedent in modern Senate history, it is important to understand:
-Warner, Symms, and Quayle had no “reasons”
for not voting. Everyone understood that the exercise
was one of blocking a non-debatable motion to proceed.
-Once morning hour had expired –- and the
filibusterers had won –- the exercise became largely
academic.
-This obscure rule –- virtually unused in the
modern history of the Senate –- had no explicit
provisions dealing with its use for purposes other
than those for which it was intended.
-The ultimate ruling –- as dangerous as it was –-
dealt only with the serial misuse of the rule for
purposes other than those for which it was intended
–- and only in connection with votes to approve the
journal.
The bottom line? This precedent comes as close as any in modern Senate history to an actual invocation of the “fraud option” now being proposed by Republicans as a standard means of conducting Senate business.
But it stops short, in many respects, of fundamentally overriding the written text of a substantial part of a major Senate rule in ways irreconcilable with the text of the rule.
SUMMARY
First, it is important to remember the proposition for which Gold is invoking these four examples: that the clear provisions of a written Senate rule can be repealed, by 51 votes, without debate, by a point of order running counter to the rule.
At the outset, it is important to note that all four of the examples cited by Gold represent abuses of power –- abuses which should not be held up as models of how the Senate ought to do business.
Having said this, it is absolutely clear that three of the four Gold “examples” involve rulings which are completely consistent with the plain text of the Senate rules –- and which are largely consistent with unwritten precedent.
In connection with the fourth example, Gold has argued that the thrust of the point of order was contrary to the text of the underlying rule. And, while Gold’s position is not an unreasonable one, it can also be argued that, where there are no legitimate “reasons” being offered for asking to be excused from voting, the chair is not required to force the Senate to vote on reasons which do not exist.
OPTION 4: SPECIAL ORDERS OR RULES CHANGES
WHAT IT IS: The Senate can use its procedures at any time to actually change the text of its rules or to create temporary or permanent exceptions to them without changing the actual text. This second category is frequently called “special orders.”
With certain limited exceptions, the Senate can normally suspend any rule by unanimous agreement. These “unanimous consent requests” occur when any senator addresses the chair and says: “Mr. President, I ask unanimous consent that...” If no senator objects, the chair grants the request with the words: “Without objection, it is so ordered.” This procedure is used by the Senate to consider virtually all legislation and to conduct virtually all of its business. Thus, a single angry senator or faction of senators could throw the Senate into chaos by objection to virtually all unanimous consent agreements.
Some things cannot be done by unanimous consent: Rule XII –- dealing with voting procedures –- explicitly forbids “any request to suspend it by unanimous consent.”
In addition, unanimous consent agreements cannot be used to suspend statutes –- such as certain provisions of the 1974 Budget Act –- or to act in violation of constitutional requirements –- including Article I, Section 5’s requirement that a “sufficient second” consist of “one fifth of those present.” (Ironically, this “sufficient second” provision –- one of the few actually contained in the Constitution –- is probably the Senate’s most frequently ignored rule.)
In addition, the Senate may suspend its rules by a two-thirds vote with one day’s notice –- or it may change the text of the rules by majority vote. Under Rule XXII, however, a change is subject to a filibuster which may be ended only by two-thirds of those senators present and voting.
Either a special order or a textual rules change can be offered by majority vote to virtually any legislation as an amendment, subject to the two-thirds “cloture requirement.” During his tenure as majority leader, West Virginia Democrat Robert Byrd argued that these amendments are binding on the Senate if the bill passes the Senate, even if it is not subsequently signed into law.
WHAT’S WRONG WITH THIS?: Although this fourth option does not present the huge ethical and precedential problems of the other alternatives, it is not among the favored options for one simple reason: breaking the inevitable filibuster would require two-thirds of those senators present and voting –- in a high-profile vote in which virtually all senators would be present. If Republicans have the 67 votes necessary to prevail under this strategy, they presumably have the sixty votes necessary to invoke cloture on a nomination.
REPUBLICANS –- EVEN MIDDLE-OF-THE-ROAD REPUBLICANS –- WILL NOT ALWAYS BE IN POWER
In the 96th Congress, Majority Leader Byrd was sitting on 58 Democratic votes in the Senate. Further, the Republican presidential nominee was viewed (by him) as a “right-wing” actor running against an incumbent. As he prepared his plans to abolish the filibuster, Byrd never imagined that he would have occasion to use it. A few months later, he was in the minority.
The situation for the 109th Congress Senate Republicans is considerably more precarious than was Byrd’s in 1980.
They have recently picked up four additional Senate seats, buoyed by George W. Bush’s “landslide” victory over a Massachusetts liberal by fewer than 120,000 Ohio votes.
Senate Republicans need to understand that, if they endorse the proposition that the Senate rules can be changed at any time, without debate, by a majority vote, the Democrats, if and when they regain power, will use this precedent ruthlessly against them.
Perhaps the starkest example of what to expect came during Byrd’s final stretch as majority leader –- and has already been mentioned in another context. It involved Byrd’s move to order the arrest of Republican senators in order to obtain a quorum for an election law “reform” proposal to launch the GOP into permanent minority status.
While Republicans –- when given the majority –- fritter around the edges of Democratic power, Democrats, once in power, will work to destroy and demonize all who stand in their way.
SUPREME COURT NOMINEES BY MODERN REPUBLICAN PRESIDENTS HAVE BEEN, TO SAY THE LEAST, A “MIXED BAG”
Eisenhower’s first nominee was Chief Justice Earl Warren –- architect of modern liberal jurisprudence.
Nixon’s picks, like Nixon himself, frequently got entangled in scandal. But his first successful associate justice nominee was Harry Blackmun, author of Roe v. Wade.
Ford gave us one justice: John Paul Stevens –- one of the four members of the court’s liberal wing.
Reagan’s first justice was Sandra Day O’Connor, whose nomination sent conservatives into a conclave contemplating, ironically, a filibuster.
And George H. W. Bush? His first nominee was David Souter, who, with Stevens, forms half of the court’s current liberal wing.
Will George W. Bush –- who is, to put it mildly, no “Ronald Reagan” –- be any better?
It is significant that, if one were to name the American most likely to get a Supreme Court nod at some point, it would be Attorney General Alberto Gonzales –- a man who endorsed the resurrection of the semiautomatic gun ban.
THE GENIE IS NOT SO FAR OUT OF THE BOTTLE THAT IT CANNOT BE PUT BACK IN AGAIN
When argued into a corner, proponents of the “nuclear option” inevitably resort to their “desperation argument”: “The genie is out of the bottle. If we don’t do this to the Democrats, they will do it to us.”
As a preliminary matter, these advocates may underestimate the power of a private handshake among senators [see, e.g., the Title X battle in 1990], let alone a public commitment on the Senate floor –- perhaps even enforced by a unanimous consent agreement, special order, or rules change.
But, having said this, it is hardly necessary to rely on the honesty of U.S. senators:
The Senate could statutorily declare itself a continuing body –- and require that all constitutional questions (and all issues contradicting the text of the Senate rules) be put to the body for a vote, subject to debate. This could probably be easily accomplished if done now.
Advocates of the “nuclear option” are right about one thing: By allowing the issue to fester, they have created a problem which needs to be addressed.