By now you're aware that the effort to reform Senate rules kicks off, thanks to the efforts of Sen. Tom Udall (D-NM) and his supporters, on the first day of the new Congress -- this Wednesday, January 5th.
Much has been made of the connection between Senate rules reform and that first day, but there are a few finer points that deserve discussion, and that might help you make sense of events as they unfold.
First of all, we should get some sense of where the significance of the first day comes from. We've discussed before how the Senate has in the past reconciled its constitutional right to adopt its own rules of procedure with its tradition as a "continuing body." And perhaps the most comprehensive statement of how this paradox has been viewed comes from a 1957 advisory opinion delivered from the chair by then-Vice President (and President of the Senate) Richard Nixon, during a similar effort to reform Senate rules.
Just to set this up for you, at the time he delivered this opinion, a motion to adopt new rules changes was the pending business, and reform opponents had moved to table the proposal, prompting one Senator to ask just what rules the Senate was then proceeding under:
The constitutional provision under which only one-third of the Senate membership is changed by election in each Congress can only be construed to indicate the intent of the framers that the Senate should be a continuing parliamentary body for at least some purposes. By practice for 167 years the rules of the Senate have been continued from one Congress to another.
The Constitution also provides that "each House may determine the rules of its proceedings." This constitutional right is lodged in the membership of the Senate and it may be exercised by a majority of the Senate at any time. When the membership of the Senate changes, as it does upon the election of each Congress, it is the Chair's opinion that there can be no question that the majority of the new existing membership of the Senate, under the Constitution, have the power to determine the rules under which the Senate will proceed.
The question, therefore, is, "How can these two constitutional mandates be reconciled?"
It is the opinion of the Chair that while the rules of the Senate have been continued from one Congress to another, the right of a current majority of the Senate at the beginning of a new Congress to adopt its own rules, stemming as it does from the Constitution itself, cannot be restricted or limited by rules adopted by a majority of the Senate in a previous Congress.
Any provision of Senate rules adopted in a previous Congress which has the expressed or practical effect of denying the majority of the Senate in a new Congress the right to adopt the rules under which it desires to proceed is, in the opinion of the Chair, unconstitutional. It is also the opinion of the Chair that Section 3 of Rule 22 in practice has such an effect.
The Chair emphasizes that this is only his own opinion, because under Senate precedents, a question of constitutionality can only be decided by the Senate itself, and not by the Chair.
At the beginning of a session in a newly elected Congress, the Senate can indicate its will in regard to its rules in one of three ways:
First. It can proceed to conduct its business under the Senate rules which were in effect in the previous Congress and thereby indicate by acquiescence that those rules continue in effect. This has been the practice in the past.
Second. It can vote negatively when a motion is made to adopt new rules and by such action indicate approval of the previous rule.
Third. It can vote affirmatively to proceed with the adoption of new rules.
Turning to the parliamentary situation in which the Senate now finds itself, if the motion to table should prevail, a majority of the Senate by such action would have indicated its approval of the previous rules of the Senate, and those rules would be binding on the Senate for the remainder of this Congress unless subsequently changed under those rules.
If, on the other hand, the motion to lay on the table shall fail, the Senate can proceed with the adoption of rules under whatever procedures the majority of the Senate approves.
In summary, until the Senate at the initiation of a new Congress expresses its will otherwise, the rules in effect in the previous Congress in the opinion of the Chair remain in effect, with the exception that the Senate should not be bound by any provision in those previous rules which denies the membership of the Senate the power to exercise its constitutional right to make its own rules. (Congressional Record, 85th Congress, 1st Session, January 4, 1957, pp. 178-179.)
So what does that mean in terms of the importance of the first day? What it really means is that at some point before the Senate begins conducting its substantive business, there needs to be some clear and early objection to the continuance of the old rules. It's really about heading into the business of the new Congress with a clear definition of what rules will and will not be continuing in force, rather than being anything magical about the first day. The first day is just the best opportunity to guarantee that you can get that rules discussion started before any substantive business is conducted. That's the key.
During the last successful fight to change cloture rules, in 1975, that key objection was indeed made on the first day of the 94th Congress, but rather than have it out right then and there, the Senate agreed to a unanimous consent request to lock in all the rights Senators had to object to the rules on the first day, but postpone the actual debate until later that month:
Mr. MANSFIELD. Mr. President, in order to nail down doubly the protection accorded to the Senator and his cosponsors, I ask unanimous consent that, notwithstanding any delay in the consideration of the resolution, all proceedings, rights and privileges, concerning the efforts to change rule XXII of the Standing Rules of the Senate be reserved, so that proponents of such a change not be prejudiced in any way in the actual commencement of the consideration of this resolution.
As a result of the agreement, the 1975 rules reform debate actually stretched into early March of that year. Theoretically, the same could happen today.
But you're probably already thinking that getting unanimous consent on this issue in the 112th Congress is probably about as close to impossible as anything can be.
So what might happen instead? Well, the reform-minded Senators might have to stay there and fight -- something that would have to start on Wednesday, but might actually continue for quite some time -- all the while objecting to the conduct of substantive business under the old rules.
The situation is somewhat complicated by Senate rules and practices (what a surprise!) such as, well, the definition of what constitutes the "first day" as well as how to define "substantive business." Yes, even the definition of a "day" is like something out of Wonderland in the Senate. Because a "legislative day" isn't the same thing as a calendar day:
legislative day - A "day" that starts when the Senate meets after an adjournment and ends when the Senate next adjourns. Hence, a legislative day may extend over several calendar days or even weeks and months.
If the Senate breaks in its proceedings with a recess rather than deciding to adjourn, the next calendar day is still a part of the same "legislative day." So if there's no adjournment, the "first day" of the new Congress could -- by this definition -- last for days, weeks, or even months.
As for what constitutes the kind of "substantive business" that could signal the acquiescence of the Senate to the old rules, nobody's sure exactly what that could mean, either. Most assume it's the consideration of bills, resolutions, nominations and the like. But others say it's any business, perhaps as routine as having the Senate chaplain offer an opening prayer. The definitive word will come from the Senate Parliamentarian's office, and as usual, they're not talking to the public, and neither is anyone who's talking to them.
We'll have to wait and see to find out whose definitions they're working with, and what that might require reform leaders to do.