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How the Filibuster was radically changed in 1975

The Senate Democrats are currently discussing changes to the Senate rules with respect to when it is necessary to file a cloture motion in order to cutoff debate and a few other related issues.  This leads us to the question of not only the arguments in favor and against the proposed rule changes, but also to a discussion regarding the procedures by which Senate rules may be changed.  A review of Senate rulemaking history is appropriate.  In 1975, the US Senate made a significant change in the Senate rules, changing the percentage required to invoke cloture, and thereby bring a filibuster to an end, from two-thirds of all Senators present and voting to three-fifths of all Senators chosen and sworn.  It was actually a simple majority of US Senators, not a supermajority of Senators, that forced the Senate to change its rules.

On Pages 252 to 260 of “The Constitutional Option to Change Senate Rules and Procedures: A Majoritarian Means to Over Come the Filibuster,” Martin B. Gold and Dimple Gupta explain  how this major rule change was made.  I will quote just a portion of these 9 pages.  But I would recommend to anyone who is interested in learning about how Senate rules can be changed that they click on the above link and at least read pages 252 to 260 (the article starts on page 206).  Even better, read the entire 68 page article. Let’s start on January 14, 1975, when Senators Walter Mondale (D-MN) and James Pearson (R-KS) are confronted with a dilemma. They want to change the Senate rule from two-thirds of all Senators present and voting to invoke cloture (end debate and defeat a filibuster) to three-fifths. But they don’t have the support of two-thirds of the Senate. So how do they avoid the two-thirds supermajority requirement to end debate on their proposed rule change?

On January 14, 1975, Senators Walter Mondale (D-MN) and James Pearson (R-KS) attempted to resolve this dilemma. They announced that they were invoking the constitutional option and were not acquiescing to the prior Standing Rules, irrespective of any Senate action under those rules:

[Mondale:] I wish to state, as has been traditional at the commencement of efforts to amend rule XXII, that, by operating under the Standing Rules of the Senate the supporters of this resolution do not acquiesce to the applicability of certain of those rules to the effort to amend rule XXII; nor do they waive any rights which they may obtain under the Constitution, the practice of this body, or certain rulings by previous Vice Presidents to amend rule XXII, uninhibited in effect by rules in effect during previous Congresses.

Majority Leader Mike Mansfield (D-MT) raised a point of order that Pearson’s motion violated rules XXII and XXXII. He explained that he favored reducing the cloture requirement to three-fifths, not to a simple majority. He stated that because Pearson’s motion would “invoke cloture by a simple majority vote” and disregard the Standing Rules, he opposed it. Vice President Nelson Rockefeller referred Mansfield’s point of order to the Senate body, ruling that “the question of the continuation of the rules of the Senate from one Congress to the next and, more particularly, the procedure by which those rules may be amended, has been considered a constitutional question” and thus one for the full Senate to decide.

This leads to an important event in Senate history with respect to Senate rule changes. The full Senate voted on Manfield’s point of order and indirectly voted on the legitimacy of the Constitutional option, the legitimacy of the Senate changing its rules on a simple majority vote.

The Senate tabled Mansfield’s point of order 51-42. This would mark the first of three times in 1975 that the Senate would go on record supporting the constitutional option.

This vote, however, did not immediately end the controversy. The opponents of changing the Senate rules engaged in additional dilatory tactics to prevent a vote on the Mondale-Pearson rule change. Eventually, however, a compromise was reached.

On March 7, the Senate voted 56-27 to amend rule XXII to provide for cloture by three-fifths of Senators duly chosen and sworn.

The bottom line is this. If a simple majority of US Senators want to change the rules of the Senate, there is nothing that stands in their way of doing so. Also, if you read the entire Gold/Gupta article, you will notice that another option the Senate majority has it simple ignoring the Standing Rules of the Senate and creating a new Senate Precedent. This is what Majority Leader Robert Byrd did several times. The Senate does not always follow its Standing Rules. It often follows its Senate Precedents, which are often in conflict with one or more of the Standing Rules. It is important that grass roots conservatives become knowledgable regarding Senate Rules and Procedures because the interpretation and application of rules and procedures can determine important policy outcomes, including who sits on the federal court of appeals and who sits on the US Supreme Court.

 

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