Legal Commentary

An Interesting Wrinkle in the Reid Bill Entrenchment Provisions

By Jonathan H. Adler

Over at NRO?s Bench Memos, Matt Franck points out that insofar as the Reid bill alters Senate rules in order to entrench some of the bill?s reforms, there may not have been enough votes for cloture on the bill.

while cloture to end debate on legislation ordinarily takes ?three-fifths of all the Senators duly chosen and sworn? (60 senators when all seats are occupied), cloture on any proposed change to the Senate?s standing rules takes ?two-thirds of the Senators present and voting,? or 67 senators if all 100 are on the floor.  (Both of these requirements are in Senate Rule XXII.)  Ironically, the two-thirds rule can be easier to satisfy when the active quorum of senators is smaller; it could take as few as 34 senators when a bare-minimum 51 senators are present.  But any time more than 90 senators are present, it will take more than 60 votes to end debate on any statute that works a change in the Senate?s standing rules.  Thus a good argument can be made that the mere 60 votes obtained in the recent cloture vote were insufficient to end debate on the Reid bill?because it contains at least one change to the Senate?s standing rules.

This creates an interesting wrinkle.  Under Senate Rule XXII, ?a measure or motion to amend the Senate rules . . . the necessary affirmative vote shall be two-thirds of the Senators present and voting? to end debate.  Yet there were only 60 votes for cloture on the Reid bill.  So unless there is some basis for giving special treatment to rules changes that are buried into other legislation, it would seem that either a) cloture was not achieved, or b) the entrenchment provisions do not actually alter the Senate rules.

Full post as published by The Volokh Conspiracy on December 23, 2009 (boomark / email).