Majority Leader Lyndon B. Johnson, D-Texas, moved to table the rules debate motion and obtained unanimous consent to bring his tabling motion to a vote the next day. The motion to table was handily adopted 55-38, meaning Nixon was not forced to convert his advisory opinion into a formal ruling. LBJ would later explain how he used this threatened change in filibuster rules to persuade Southerners not to filibuster the 1957 Civil Rights Act (only Sen. Strom Thurmond, D-S.C., did).
Nixon’s advisory opinion had legs. (Today it is known as the “constitutional option” or the “nuclear option,” depending on your point of view.) In 1967, Humphrey — then vice president — avoided ruling on the question of the vote threshold for closing debate on Senate rules by putting the point of order to a direct Senate vote. However, in January 1969 he was forced to rule on a cloture motion, and he held that only a majority was needed to end debate. Humphrey’s decision was overturned on appeal.
In 1975, Vice President Nelson A. Rockefeller offered Nixon’s advisory opinion during debate on changing the cloture rule’s threshold from a two-thirds vote to a three-fifths vote. The Senate twice tabled points of order against a motion to close debate by majority vote. However, realizing this set a dangerous new precedent, Senate leaders had those votes vitiated in return for assurances that the rule change would be adopted after a regular cloture vote. (Left intact was a two-thirds cloture requirement for rules changes.)
On opening day of the 113th Congress, Vice President Joseph R. Biden Jr. will hold the key to this long-running dispute if Majority Leader Harry Reid, D-Nev., proceeds to amend the cloture rule by circumventing the supermajority hurdle for ending debate. Biden can either rule on a point of order or put the constitutional question directly to a Senate vote. A Senate majority will ultimately decide whether to preserve the status quo or usher in a constitutional nirvana or nuclear winter.
In the past, the Senate has stepped back from the abyss, fully understanding that today’s majority is tomorrow’s minority. Once the rules are opened to change willy-nilly, the Senate will become more like the House, with a different rule for every bill. May cooler heads prevail.
Don Wolfensberger is a senior scholar at the Woodrow Wilson Center, a resident scholar at the Bipartisan Policy Center and former staff director of the House Rules Committee.