Is There a New Filibuster Rule?

What has the Senate actually done so far, with respect to the filibuster? Some of the reports of what happened today say that the Senate has adopted “new rules” eliminating the filibuster for some purposes. I’m not sure that’s true, in a formal sense. As I understand what happened, the Senate voted to ignore the current filibuster rule (on constitutional grounds). It did not vote to change it.

Indeed, a vote to actually change the rule would also have been in contradiction to Senate Rule V, which requires “one day’s notice in writing, specifying precisely the rule or part proposed to be suspended, modified, or amended, and the purpose thereof.” Presumably the same anti-entrenchment arguments marshaled against the supermajority requirement could be modified against the notice and specification requirements, although I am not sure they would have the same force.

Now this may be pure semantics. Whatever you call it, the Senate has voted to disregard the filibuster, and that decision may well have precedential effect in the future. But it seems to me that it may be relevant to the constitutionality of what the majority did today. For example, some of the most prominent arguments that the filibuster are unconstitutional focus on the majority’s constitutional power to amend the rules, not to ignore them. Here is Josh Chafetz, The Unconstitutionality of the Filibuster:

I would think it permissible to maintain the sixty-vote requirement for cloture, so long as it was clearly the case that the cloture rule could be changed by majority vote at any time. In other words, a determined majority could go through a three-step process—first voting to lower the cloture threshold, then voting for cloture on the matter at issue under the new threshold, then voting on the underlying matter. True, the three-step process would involve delay and would alter the shape of the deliberations. It would focus Senators’ minds on whether they thought that the underlying issue was important enough to justify changing the rules of the game.

Similarly, Mike Rappaport and John McGinnis defended “the Senate’s long practice of requiring a supermajority to end debate on legislation,” on the grounds that:

If the Senate voted on whether to change the cloture rule, only a simple majority would be needed to change it. … The historical and structural argument presented above does not demonstrate that a majority must at all times be able to obtain a vote on all measures that it desires. Indeed, as discussed above, several longstanding legislative rules, including the rules governing the filibuster and the committee system, sometimes burden the ability of a majority to vote on bills and rules. Here we can state with some confidence only that when a house votes, the Constitution requires that a majority be able to repeal an existing rule.

The constitutional problem is that the current Senate rules purport to stop a majority from changing the rules, by requiring a 2/3 majority to get cloture on a proposal to change the rules. It is the combination of that 2/3 requirement and the 60-vote cloture requirement that is unconstitutional. And it is not clear to me, in the case of such an unconstitutional combination, which rule is supposed to give way. One possibility is that the constitutional remedy is to jettison the 2/3 rule-amending requirement, and then use that power to formally amend the filibuster (if desired), not just to ignore the filibuster rule.

I should say that I am not at all sure that I correctly understand what happened today, and there is a lot about Senate procedure I don’t understand too, so I may be wrong about all of this. If you want to hear Senator Reid’s point of order (“that the vote on cloture under Rule 22 for all nominations other than that for Supreme Court of the United States is by majority vote”) it is at around 1:37:00 in this video.

[Finally, for what it is worth, my personal view is that the current (or should I say former?) filibuster is a desirable thing, but also unconstitutional.]