On January 3, senators put off decisions about if or how to restrict the ability of senators to filibuster. The quasi-deadline for a decision is January 22. Why? Because, the argument goes, the first day of Congress is the magic hour when senators get to decide what their rules are. Once the magic day (and by "day" we mean "legislative day", so it lasts until the Senate adjourns) goes by, the current rules are locked in and there's just nothing that can be done about them. This is known as the so-called "constitutional option" whereby senators declare that the Senate has no rules at the start of a new Congress until it formally adopts them. I think the reformers make a mistake to base their strategy on this argument.
In the media and blogosphere, the terms constitutional option and nuclear option are used in a variety of ways, sometimes so broadly that they essentially mean “any reform achieved by parliamentary precedent without the consent of the minority party” or “any reform that makes the minority party really mad.” I use the term more precisely to mean a reform strategy premised on revoking the notion that the Senate is a standing body with continuous rules and asserting the right to adopt rules de novo at the beginning of a new Congress.
The constitutional option has been discussed and attempted for decades. I will not bother with the arguments that the Senate should not be a standing body, or that the Senate’s practice is somehow unconstitutional. I am more interested in the practical questions of which reform strategy is most likely to succeed with the lowest short-term political costs and long-term jeopardy. By this standard, the constitutional option is probably not the best approach. I have six concerns.
1) The constitutional option is complicated. If the Senate has no rules, then it is operating under general parliamentary law. What does this mean? No one knows. Senators, presiding officers, and parliamentarians will likely have an ongoing conversation about how to make decisions without rules. This creates ample opportunities for points of order, indignant protests, and embarrassment. Who knows how long it will take to get a direct vote on a rules change? Or if it will ever happen?
Sure, the House of Representatives manages to move from anarchy to order every two years, but it has had centuries of practice and has standard routines to guide its tradition.
2) The constitutional option creates a process for radically empowering the majority party in the long run. No matter how innocuous the reforms adopted in the 113th Congress, once the constitutional option is affirmed the majority party will be empowered to propose and push through rules changes every two years. In this polarized environment, the temptation to centralize power as thoroughly as the U.S. House will likely be overwhelming. This may be especially galling if Democrats see their modest reforms of 2013 pave the way for the reign of Czar McConnell.
3) While there is no doubt that the majority can exercise the constitutional option if it musters enough votes, it looks like a violation of the social contract. The minority party will likely gain public sympathy by characterizing the majority's actions as revolutionary, as a break with two hundred years of tradition and a renunciation of the last shred of bipartisanship in the Senate.
4) As a consequence of arguments 1-3 above, it has historically been difficult to muster a majority for a reform strategy based on the constitutional option. Much to the frustration of Senate reformers, there has usually been a swing group of senators who favor their proposed reforms but are unwilling to buy into the constitutional option. Whether they fear the long-term concentration of power in the hands of majority leaders or the prospect of running for reelection in states that lean to the opposite party, the constitutional optionper se deters would-be reform supporters.
5) The logic of the constitutional option limits the opportunity for reform to the beginning of a Congress. If the effort fails but circumstances change—the minority party is even more obstructionist than expected, or uses new tactics, or new pro-reform senators join the Senate—the reformers deny themselves the option of mid-session reform by proclaiming that the rules of the Senate are immutable once accepted.
6) Due to arguments 1-5, the constitutional option has a long record of failure. To be fair, the credible threat of majority-imposed reforms led to compromises in 1959, 1975, and 1979, but that included a frustrating stretch from 1953 to 1975 when the reliance on the constitutional option retarded progress on reform. As my colleagues Sarah Binder and Steve Smith highlight, there were several cases of apparent majority support for reform during this era, but a critical group of senators shied away from supporting the key procedural votes of the constitutional option. In 1975 the reformers finally won one of these key votes, only to realize how difficult it was to translate this initial victory into the rules change they sought.
If the constitutional option was the only way to restrict filibustering, it would be understandable to disregard these arguments and plow ahead. But it is not.