The joke used to be that the House of Representatives has dozens of rules while the Senate has just two: unanimous consent and exhaustion.
However, after Senate Majority Leader Harry Reid pulled the trigger on the “nuclear option” on Nov. 21 to effect a change in the filibuster rule for most nominations, it can now be said that the Senate has three rules: unanimous consent, exhaustion and Reid’s rule. The latter can be defined as any procedural edict the majority leader wishes to impose on the Senate so long as he has the backing of just 50 members.
Reid’s rule is not to be confused with “the Reed rules” after former Speaker Thomas Brackett Reed, R-Maine. Both party leaders had the same intent of ensuring a majority of their respective bodies could work its will. But the Nevada Democrat concocted his rule change using a point of order from the floor designed to elicit a vote overturning the chair’s ruling, whereas Reed propounded his changes as rulings from the chair against which points of order were not successful.
Reed’s rulings in January 1890 eliminated a host of dilatory motions and tactics employed by the minority to block a final vote on declaring the Republican candidate the winner in a contested election case. His rulings included abolishing the “disappearing quorum” whereby minority party members could stall business by not answering to their names during a roll call vote. Reed simply told the clerk to take down the names anyway of those members whose presence he announced.
What was different about Reed’s maneuver was that his rulings did not overturn any standing House rules — they simply outlawed some long-standing practices used by the minority to obstruct House business. He subsequently asked the Rules Committee, which he chaired, to incorporate his rulings into the resolution adopting House standing rules for that Congress.
Senate Majority Leader Reid, on the other hand, in calling for the reconsideration of an unsuccessful cloture vote on a nomination to the U.S. Court of Appeals for the D.C. Circuit, pulled off his change by raising a point of order asserting that only a majority vote is required to invoke cloture on a filibuster of any executive or judicial branch nominees (other than to the Supreme Court).
When Senate President Pro Tem Patrick J. Leahy, D-Vt., ruled that Senate Rule 22 requires a three-fifths vote to invoke cloture on nominations, Reid appealed the ruling of the chair. That forced a vote on the question: “Shall the decision of the chair stand as the judgment of the Senate?” The Senate overturned the chair, 48-52.
Minority Leader Mitch McConnell, R-Ky., then raised a point of order that the Senate rule still required a three-fifths vote for cloture. Presiding officer Leahy responded that under “the precedent set by the Senate today ... the threshold for cloture on nominations ... is now a majority.” McConnell appealed the ruling, but Leahy was sustained by the same 52 senators who previously overruled him.
Although Reid described his ploy as a rule change, Leahy’s characterization of it as a new precedent is more accurate. Reid’s point of order did not amend the standing rule requiring a three-fifths vote for cloture. It instead indirectly put that rule in abeyance for most nominations. According to former Senate Parliamentarian Floyd Riddick’s manual of procedure, if the chair’s decision on a point of order is overruled on appeal, the “decision of the Senate becomes a precedent for the Senate to follow in its future procedure until altered or reversed by a subsequent decision of the chair or by a vote of the Senate.”
Reed’s rules earned him the nickname “Czar Speaker” by Democrats, a sobriquet that carried forward to one of his successors, Speaker Joe Cannon, R-Ill. Ironically, the reign of Czar Speaker ended when a small group of progressive Republicans joined with Democrats in 1910 to offer a rule change on the floor to remove Cannon as chairman and a member of the Rules Committee. The insurgents claimed their motion was privileged under the Constitution’s clause that gives each house authority to determine the rules of its proceedings — what some today call “the constitutional option.”
Cannon, citing a ruling by a previous Democratic speaker, held that the motion was not privileged under the Constitution and that only the Rules Committee can originate rules changes. However, his decision was appealed and he lost. Time’s pendulum is a two-edged scythe.