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Amending Senate Rules at the Start of a New Congress, 1953-1975: an Analysis with an Afterword to 2015

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Amending Senate Rules at the Start of a New Congress, 1953-1975: an Analysis with an Afterword to 2015 Amending Senate Rules at the Start of a New Congress, 1953-1975: An Analysis with an Afterword to 2015 Updated February 23, 2016 Congressional Research Service https://crsreports.congress.gov R44395 Amending Senate Rules at the Start of a New Congress Summary The filibuster (extended debate) is the Senate’s most well-known procedure. Hollywood even highlighted its use in a famous 1939 movie entitled Mr. Smith Goes to Washington, starring actor Jimmy Stewart in the title role of Senator Jefferson Smith. Lengthy debate has many virtues (informing the public, for example) but the blocking potential of interminable debate has often made the filibuster a target for change by reform-minded Senators. Rule XXII requires 60 votes of Senators duly chosen and sworn to end debate on measures or motions—“except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two- thirds of the Senators present and voting.” Real or threatened filibusters, along with cloture motions, have increased in recent Congresses. One consequence has been unsuccessful efforts by change-oriented Senators to amend Rule XXII without having to overcome the two-thirds supermajority hurdle. The contention of the reformers is that at the start of a new Congress, the Senate can amend its rules by majority vote—as the House does on its first day. They cite the U.S. Constitution (Article I, Section 5) as authority for their claim: “Each House may determine the Rules of its Proceedings,” which implicitly means by majority vote, state the reformers. Opponents reject the so-called “constitutional” option. They point out that the Senate has adopted rules and the Constitution says nothing about the vote required to adopt those rules. Moreover, they contend that the Senate is a “continuing body”—a quorum to conduct business is always present given the staggered terms of Senators—with continuing rules. The bottom line: a Senate majority can always amend the chamber’s rules at any time during the two-year life of a Congress so long as the existing rules are observed, such as Rule XXII. Proponents of change refute that argument. They agree that a majority of the Members can change Senate rules at any time. Their concern is Rule XXII’s two-thirds requirement for invoking cloture on proposals to amend Senate rules, which can prevent a majority from altering Senate rules. From 1953 to 1975, initiatives to reform Rule XXII at the start of a new Congress were biennial rituals. They were instigated by Senators in each party frustrated by the chamber’s inability to enact social and civil rights legislation because of opposition from other Members. The bulk of this report examines each Congress where reform actions occurred on “opening day,” which could extend for days, weeks, or months. Most of the reform attempts failed, but two efforts were successful: in 1959 and 1975. An analysis of the successes and failures of this nearly quarter- century era of opening day reform efforts could inform contemporary efforts to revise Senate rules by examining the controversies, conditions, and circumstances that produced the various outcomes. The report discusses, for example, the roles of various Senate Presidents (the Vice President) and party leaders, as well as the procedural strategies used by opponents and proponents of amending Rule XXII by majority vote at the start of a new Congress. The report also includes an “Afterword” that examines several subsequent and successful efforts to change Rule XXII in 1977, 1979, 1986, and 2013. The 2013 case is noteworthy because it created a new Senate precedent that allows majority cloture on most executive and judicial branch nominees. This precedential approach is sometimes called the “nuclear” option because of the likelihood of strong opposition and contentious parliamentary fallout from Senators opposed to its use on consequential measures or matters. In brief, the nuclear option indirectly “amends” Senate rules by majority vote through the creation of a new precedent that alters the application or interpretation of a chamber’s rule, such as Rule XXII, without changing its formal text. Congressional Research Service Amending Senate Rules at the Start of a New Congress Contents Introduction ..................................................................................................................................... 1 Legislative Context .......................................................................................................................... 4 The Constitutional and Nuclear Options ......................................................................................... 6 Precedents and Senate Rules ..................................................................................................... 7 The Senate’s Rulemaking Authority ......................................................................................... 9 Attempts to Amend the Standing Rules of the Senate on Opening Day: 1953, 1957, and 1959 ............................................................................................................................................. 11 83rd Congress (1953) ................................................................................................................ 11 85th Congress (1957) ............................................................................................................... 12 86th Congress (1959) ............................................................................................................... 14 Cloture Reform Attempts: 1961 To 1975 ...................................................................................... 18 87th Congress (1961) ............................................................................................................... 19 88th Congress (1963) ............................................................................................................... 27 89th Congress (1965) ............................................................................................................... 35 90th Congress (1967) ............................................................................................................... 38 91st Congress (1969)................................................................................................................ 43 92nd Congress (1971) ............................................................................................................... 49 93rd Congress (1973) ............................................................................................................... 55 94th Congress (1975) ............................................................................................................... 55 Changing Senate Rules: Several Considerations ........................................................................... 72 The Presiding Officer .............................................................................................................. 73 The Majority Leader ............................................................................................................... 75 A Determined Majority ........................................................................................................... 76 Procedural Strategy ................................................................................................................. 76 “Opening Day” ........................................................................................................................ 78 Continuing Body Doctrine ...................................................................................................... 78 The Scope of Changes to the Senate Rulebook ....................................................................... 78 Afterword ...................................................................................................................................... 79 The 1977 Post-Cloture Filibuster ............................................................................................ 80 1979 Revision ......................................................................................................................... 82 1986 Revision ......................................................................................................................... 83 A January 2013 Development ................................................................................................. 84 Historic Change in November 2013: Filibusters Curbed on Most Presidential Nominees ............................................................................................................................. 86 The 114th Congress (2015-2016) ............................................................................................. 92 Concluding Observations .............................................................................................................. 93 Contacts Author Information ........................................................................................................................ 95 Acknowledgments ......................................................................................................................... 95 Congressional Research Service Amending Senate Rules at the Start of a New Congress Introduction At the beginning of the 112th, 113th , and 114th Congresses—in 2011, 2013, and 2015 respectively—a number of reform-minded Senators unsuccessfully urged the Senate to adopt its
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