The Hill (Washington, D.C.) - The Judicial Filibuster and Senate Rules

January 19, 2005
By Alexander Bolton 

Little-noticed remarks delivered by Senate Majority Leader Bill Frist (R-Tenn.) at the start of the new Congress have stirred debate over their implication for lawmakers ability to filibuster controversial legislation and nominations.

A few of Frists conservative allies are interpreting his Jan. 4 comments to mean that Rule 22, which establishes the ground rules for filibusters, is not in effect for the new session of Congress. The uncertainty leaves it unclear whether all filibusters, including filibusters of legislation, could be dispensed with by a mere majority vote or the agreement of all senators present in the chamber unanimous consent would be needed to move forward on even the most controversial business.

Other conservatives and those close to Frist have advanced narrower interpretations of Frists statements.

During a floor speech, addressing the Democratic filibusters of controversial judicial nominees, Frist said: Right now, we cannot be certain judicial filibusters will cease, so I reserve the right to propose changes to Senate Rule 22 and do not acquiesce to carrying over all the rules from the last Congress.

Rule 22, adopted by the Senate in 1917 and later modified, enables senators to limit extended debate, the polite term for filibusters, by a vote of three-fifths of the entire chamber, or 60 senators. The rule is routinely invoked by the majority leader when a senator or a group of senators attempts to stall a vote.

I think the best reading is all of Rule 22 doesnt apply, said Todd Gaziano, the director of the Center for Legal and Judicial Studies at the Heritage Foundation, a conservative think tank. I know youll get many Republicans and Democrats who disagree.

Gaziano said that Democrats lost their chance to rebut Frists refusal to accept the rules of the previous Congress by not objecting to his statement on the floor. He said that Democrats now have a strong incentive to negotiate with Frist on crafting a new filibuster rule that exempts judicial nominees from stalling. Otherwise, Democrats would not have the right to filibuster legislation they oppose, such as Bushs energy bill, he said.

By their silence they have acquiesced in a way to Frists non-acquiescence, he said. I think that every senator wants a legislative filibuster. I think both sides should come together to craft an acceptable legislative filibuster.

A more narrow interpretation of Frists statement is that he declined to acquiesce on the section of Rule 22 that governs ending debate on an amendment to the rules. In the last Congress, most Senate experts interpreted Rule 22 to require a vote of two-thirds of the Senate to end debate on a proposed rules change. By declining to accept that reading, Frist could make a rules change with a simple majority vote. That tactic is known as the nuclear option because it would likely melt relations between Republicans and Democrats.

This interpretation is seemingly supported by Frists statement in his Jan. 4 remarks that some, I know, have suggested that the filibusters of the last Congress are reason enough to offer a procedural change today, right here and right now, but at this moment I do not choose that path.

Senior Democratic Senate aides, however, dismiss this interpretation as absurd. One aide said Frists statement is definitely meaningless as far as a parliamentary standpoint.

The Democratic aide argued that the Senate, unlike the House, is a continuing body and that the rules of the previous session carry over unless action is taken otherwise. The aide said that two-thirds of the Senate would need to vote to end a filibuster on a proposed rules change and that Republicans could be sure to expect a filibuster from Democrats if they attempted to change the rules to bar extended debate on judicial nominees,

Frists office has allowed the controversy to grow by not clarifying the floor comments, letting them stand on their own.

In the last Congress, Democrats used filibusters to prevent floor votes on 10 of President Bushs judicial nominees. Bush has resubmitted most his blocked nominees.

Manuel Miranda, who served as Frists top aide in charge of strategy on Bushs judicial nominees, agreed with Gazianos interpretation.

In my opinion, Rule 22 has not been acquiesced to and is not in effect, Miranda said. Frist specifically reserves on Rule 22, and we do not know what he is challenging or proposing until he further objects or does not. So in theory he has challenged all of Rule 22, but in context he clearly is objecting to its use regarding judicial nominations.

But Jay Sekulow, the chief counsel to the American Center for Law in Justice, said that he believed that Rule 22, also known as the cloture rule, remained in effect.

However, most conservatives agree that Frist will likely settle the controversy next month.

They point to Frists statement in his Jan. 4 remarks: Next month, we will have the opportunity to restore Senate tradition. I will bring one of the presidents very capable, qualified, and experienced judicial nominees to the floor. And we must offer the president advice and consent by giving this and future judicial nominees who are brought to the floor up-or-down votes.

Connie Mackey, a lobbyist for the Family Research Council, said, I think its going to be right out of the box.