A week ago I wrote three long posts arguing that the claim by Republicans that the cloture rule is unconstitutional in regards to nominations has no basis. This is, of course, the central claim for the "nuclear option." You can find those posts here, here and here, and a related post here (Wampum yesterday made essentially the same point I had).
Shortly afterward, Kevin Drum emailed asking whether the Supreme Court has ever ruled on this question, or more generally on Congress's use of Article I, Section 5 to write its own rules. With the press of non-blog work I put off an answer. Then, yesterday a reader disputed my interpretation and cited U.S. v. Ballin as saying that use of more than a majority, unless otherwise specified in the Constitution, is not permitted. This provides me the perfect excuse to return to the topic and another long post on the constitutionality of the cloture rule.
The quick answer is that the Supreme Court has deferred to the judgment of the House and Senate to write their own rules so long as they are complied with and do not run afoul of constitutional restrictions. In my previous posts, I outlined why the text and Constitutional Convention debates present little reason to believe filibusters are not permitted for nominations. Here I show how the Court's reasoning on related matters are consistent with my argument. Thus, again, filibusters of nominations are permissible under the Constitution.
U.S. v. Ballin, 144 U.S. 1 (1892) concerns whether the House Speaker was duly empowered to count as present members who refused to vote in order to have a quorum for conducting business. To understand why this was a big deal, and why the Court was asked to rule, a little historical background is necessary. For those who want to delve deeper, I highly recommend Sarah Binder's book Minority Rights, Majority Rule: Partisanship and the Development of Congress.
The House of the 1880s was a procedural mess. Speakers and the Rules Committee had little control of the floor, and the opposition could wield an array of weapons to delay consideration of a bill or to halt deliberations altogether. In comparison with the Senate these days, the House at that time was several orders of magnitude more prone to stalemate.
One common tool was to move to adjourn anytime one didn't like what was happening. Anyone could make the motion, and because it was privileged it could shortcircuit an unwanted vote. More egregious and frustrating to the majority was the "disappearing quorum" where the opposition would be present but refused to acknowledge the call of the chair, thus depriving the House of a quorum to conduct its business. One in five roll call votes during this period was on dilatory motions of one kind or another. The Washington Post wrote in 1888 and 1889 (sorry, no links!) that it had become a do-nothing House.
Speaker Thomas Reed (R-ME) asserted control over the chamber by instituting what came to be known as the Reed Rules. There were many components, most of which are still in force, but came down to two fundamental stages. First, Reed ruled from the chair that all members in the chamber, whether answering the quorum call or not, would be counted as present for purposes of constituting a quorum. That way, any action taken by the House would have the force of law. (Remember, Article I, Section 5 says that a majority of the House constitutes a quorum for conducting business.) Second, a reform package was brought to the floor to do away with dilatory motions, take some of the power out of the hands of individual members, and strengthen the Speaker and the Rules Committee.
U.S. v. Ballin concerned an objection that because a quorum was counted using the Reed method rather than via a formal vote as had been done prior to 1890, the bill passed as a result was invalid. In other words, it challenged Reed's power to ignore the disappearing quorum. The Court found first that Reed's quorum rule was an appropriate exercise of the House's power to write its own rules, and second that once the quorum was established the House duly passed the bill by a majority vote.
Let me take each of those in turn since they both speak to the questions raised by the nuclear option. First, while the Court finds that the rules Congress creates for itself are justiciable since they impinge on the question whether a statute is valid, it shows great deference to Congress in deciding what those rules shall be. It finds:
The constitution empowers each house to determine its rules of
proceedings. It may not by its rules ignore constitutional restraints
or violate fundamental rights, and there should be a reasonable
relation between the mode or method of proceeding established by the
rule and the result which is sought to be attained. But within these
limitations all matters of method are open to the determination of the
house, and it is no impeachment of the rule to say that some other way
would be better, more accurate, or even more just. It is no objection
to the validity of a rule that a different one has been prescribed and
in force for a length of time. The power to make rules is not one which
once exercised is exhausted. It is a continuous power, always subject
to be exercised by the house, and, within the limitations suggested,
absolute and beyond the challenge of any other body or tribunal.
As such, because the Constitution does not specify the method by which a quorum is to be counted, any rule the House constructs is appropriate so long as it does not run afoul of other provisions and is applied consistently. For this reason, there are very few instances when the Court has scrutinized the rules of Congress in this manner.
As for the second part of the Court's reasoning, while it suggests that the default decision rule is a simple majority, there is nothing in the language of the decision that precludes another decision rule (such as a 3/5ths supermajority). The Court continues (emphasis added):
[H]ere the general rule of all parliamentary bodies is that, when a
quorum is present, the act of a majority of the quorum is the act of
the body. This has been the rule for all time, except so far as in any
given case the terms of the organic act under which the body is
assembled have prescribed specific limitations. As, for instance, in
those states where the constitution provides that a majority of all the
members elected to either house shall be necessary for the passage of
any bill. No such limitation is found in the federal constitution, and
therefore the general law of such bodies obtains.
Note that the Court makes clear that nothing in the Constitution explicitly requires a simple majority in order to decide. Instead, it is customary based on past practice. What weight ought we give custom? The Court has already answered that by saying that Congress has complete flexibility in writing its rules under Article I, Section 5 so long as it does not contradict specific Constitutional requirements or fundamental rights.
In other words, one would have to establish why a 3/5ths majority violates fundamental rights but a simple majority does not. As I wrote in my earlier posts on the subject, appeals by the founders to a simple majority as opposed to supermajorities were more concerned with efficiency. Above all, such a claim could not point to the Constitution itself for support because it was silent on this question.
The scattered case law the Court draws upon further illuminates this point, three selected of several (emphases added):
- "I will take it for granted that a majority of the mayor and aldermen
for the time being was sufficient to constitute the corporate assembly."
- "[I]n the absence of special provisions otherwise, a minority of the
select body, or of the committee or agents, are powerless to bind the
majority or do any valid act."
- "There is a distinction taken between a corporate act to be done by a
select and definite body, as by a board of directors, and one to be
performed by the constituent members. In the latter case, a majority of
those who appear may act; but in the former, a majority of the definite
body must be present, and then a majority of the quorum may decide."
Again, while a simple majority is sufficient to make decisions when the rules do not specify another standard, and while it ordinarily would not require less than a majority, a body is free to decide rules which might require more than a simple majority. Nothing in Ballin itself or the case law it cites says that the only way a legislature may decide is by simple majority.
U.S. v. Smith, 286 U.S. 6 (1932) takes up the question whether the Senate, after sending notice of confirmation of a nominee to the president, can reconsider the vote and reject the nomination. The Court finds that the Senate applied its own rule inconsistently and therefore could not rescind the confirmation. For our purposes, this is what the Court had to say about its review of the Senate's rules:
The Constitution commits to the Senate the power to make its own rules;
and it is not the function of the Court to say that another rule would
be better. A rule designed to insure due deliberation in the
performance of the vital function of advising and consenting to
nominations for public office, moreover, should receive from the Court
the most sympathetic consideration.
The problem, therefore, was not the rules themselves concerning confirmations and the reconsideration of votes, but instead the Senate's application of them in this instance. As long as the Senate applies its rules appropriately and does not contradict specific constitutional requirements, the Court will defer to its judgment.
As for the cloture rule itself, because the filibuster delays consideration if anything it errs on the side of "due deliberation," a standard used by the Court. Is a filibuster always used for deliberation? Of course not. But it does permit more deliberation on a nomination or bill than would occur otherwise. Consequently, the cloture rule does not violate the Court's standard for reviewing Senate rules and would receive great deference.
The Court, as far as I know, has never ruled on the cloture rule itself, nor on the failure of the Senate to actively reject a nomination, the two arguments make by Senate Republicans and their sympathizers. However, the Constitution, its history, and its interpretation by the Supreme Court all point to the same conclusion: Filibusters of nominations are not unconstitutional.
Whether they are wise, strategically useful, or make for better decisions are, of course, separate questions and over which there might be greater disagreement. But the core claim in support of the nuclear option is false on its face.
