The Constitutional Option Explained
Judicial Showdown Could Rest on the Table

Today, the Senate begins an historic debate aimed at ending the Democrats' unprecedented obstruction of the President's judicial nominees. The central question is simple: should judicial nominees have fair up-or-down votes on the Senate floor? But the procedure the Senate will likely use to decide this question is not quite as simple. The following is a step-by-step preview of the likely Senate procedure.

This morning, at the direction of Majority Leader Bill Frist, the Senate began to consider Texas Supreme Court Justice Priscilla Owen's nomination to a federal appeals court. Owen's nomination is being filibustered, or denied a vote, on the Senate floor.

A Test Vote on Cloture

Perhaps as soon as Friday, Majority Leader Frist will have the Senate vote on a motion to end the debate on Owen's nomination. This motion, called invoking “cloture” in Senate speak, requires 60 votes to pass. If it passes, which is considered very unlikely, the Senate would hold a simple up-or-down vote on whether or not to confirm Owen. A majority prevails.

If the motion fails, the debate will continue.

After allowing the discussion to go on for an additional extended period of time -- perhaps even a few more days -- Majority Leader Frist could raise a “point of order” and say that debate had gone on long enough and that opponents of the nominee are only continuing the debate in order to avoid a final vote. Frist would then ask the Senate’s presiding officer to decide whether or not this is the case. Because the U.S. Constitution names the Vice President of the United States as the presiding officer of the Senate, Vice President Cheney will likely be responsible for ruling on Frist’s question.

Assuming that the Vice President agrees with Senator Frist, Mr. Cheney would rule that a final vote on the nominee must occur within a set period of time.

The Crucial Vote: A Motion to Table

Under parliamentary rules, the Democrats could try to appeal Vice President Cheney’s decision to the full Senate. However, Senator Frist would ask the Senate to reject this appeal by making a motion to “table” it.

Critically, Senator Frist’s motion to table is not debatable under the rules, which means that a majority, or 51 votes, will be enough for Senator Frist to prevail. (If the motion were “debatable,” it would require 60 votes for Senator Frist to prevail.)

The entire issue will be settled on this crucial vote. If Senator Frist can get 51 votes in favor of his motion to table, the Senate will, almost immediately, hold a simple up-or-down vote on Owen's nomination. In addition, under Senate rules, Vice President Cheney’s ruling that debate on judicial nominees should be limited will become a binding precedent that will apply to future Senate deliberations on judicial nominations. That means that Senators won’t be allowed to filibuster future judicial nominations, guaranteeing simple up-or-down votes once their confirmations reach the Senate floor. Filibusters of legislation would be preserved.

If Senator Frist’s motion to table is defeated, he will be unable to overcome the Democrats’ filibuster, and a minority of Senators will have effectively defeated Owen's nomination.

Some Republican Senators are Still on the Fence

Remember, there are 55 Republican Senators. Majority Leader Frist will need 51 votes in favor of his motion, and if only 50 Senators vote in favor, Vice President Cheney can cast a tie-breaking vote in favor of the motion.

But with all of the Democrats expected to vote against Senator Frist’s motion, if even six Republicans join the Democrats and vote "no," the obstruction will continue. Even now, several Republicans are undecided. Some have even said they will vote "no."

If you want to make your voice heard and ask these Republicans to overcome the obstruction and hold up-or-down votes on the President’s judicial nominees, click here.

For more information on specific Senate procedure and the history of the Constitutional Option, please see this outstanding article by Senate experts Martin B. Gold and Dimple Gupta. (350kb .pdf)

A Brief History of the Use of the Constitutional Option

The Constitutional Option is nothing new. Senators have used it or tried to use it a number of times over the years. Here are a few examples…

• In 1917, Sen. Thomas J. Walsh (D-MT) argued that a majority of senators had the constitutional authority to change the Senate’s rules, regardless of the rules’ requirement that two-thirds of Senators agree to a rules change. In an effort to overcome a filibuster of a bill strongly favored by President Wilson, Walsh began the process of changing Senate rules to ban all filibusters. This threat led to a compromise that allowed consideration of the bill in question and gave birth to the cloture rule.
  
   
• In 1953, Sen. Clinton P. Anderson (D-NM) began a series of attempts to overcome Southern Democrats’ filibusters of civil rights legislation. His efforts relied on the Constitutional Option. Like Sen. Walsh in 1917, Sen. Anderson argued that a majority of Senators were entitled to make changes to the Senate rules. In 1953 and again in 1957 and 1959, Sen. Anderson’s effort was defeated because he was unable to convince a majority to support his position. Nevertheless, in 1957, Vice President Richard Nixon, acting in his capacity as the Senate’s presiding officer, issued a non-binding advisory opinion in support of the Constitutional Option. As a result, two years later, Senate Majority Leader Lyndon Johnson gave in and brokered a compromise.
  
   
• In 1969, Senate liberals, still smarting from the filibuster’s use against civil rights legislation, once again took up the Constitutional Option. And once again, the Senate’s presiding officer -- this time, Vice President Hubert Humphrey -- supported it. But when Humphrey’s ruling was appealed, a majority voted to reject it.
  
   
• In 1975, Sens. Walter Mondale (D-MN) and James Pearson (R-KS), taking up the anti-filibuster mantle from civil rights advocates, pressed the Constitutional Option once again. And again, Vice President Nelson Rockefeller ruled in favor of it. But this time, a majority of senators supported his ruling. Similar majorities supported the Constitutional Option on two additional occasions in 1975. After three defeats, Senate leaders were forced to soften the filibuster rule. As a part of this compromise, however, the three precedent-setting votes in support of the Constitutional Option were reversed.
  
   
• The most prolific user of the Constitutional Option is Sen. Robert Byrd (D-WV). In 1977, as Majority Leader, he invoked the Constitutional Option and, with only majority support, altered Senate rules to end a Republican filibuster of a bill to deregulate natural gas prices.
  
   
• In 1979, Majority Leader Byrd broke a filibuster related to annual appropriations bills by threatening to force a rules change with a simple majority vote.
  
   
• In 1980, Majority Leader Byrd used a majority vote, cast along party lines, to change the Senate procedures governing the consideration of executive nominees.
  
   
• In 1987, Sen. Byrd once again invoked the Constitutional Option to force a Senate rules change in order to overcome the minority’s effort to delay passage of a defense authorization bill.

Reading List

Senate begins judge debate, prelude to a filibuster fight
Associated Press

How filibusters drain quality
By Steffen N. Johnson, in the Washington Times

It's Time for Up-or-Down Votes
By Majority Leader Bill Frist, in USA Today

Memos reveal strategy behind judge filibusters
By Charles Hurt, The Washington Times

The Dems’ Post-Nuclear Nightmare
By Peter Kirsanow, in National Review

Nuke It, Already
Los Angeles Times Editorial

Dirty Harry
Investors Business Daily Editorial

Looking for a Pryor Commitment
The Birmingham News Editorial