The key to successful procedural change through precedential action, then, is to place a question before the Senate that, if agreed to by a simple majority, would result in limiting or closing debate on the rules change proposal (or the motion to proceed to consider it, etc.). Supporters of change might, for example, simply move that the chair immediately put their proposal to a vote. They might then, themselves, raise a point of order that their motion is out of order because existing Senate rules recognize no such motion. Normally, of course, on the basis of existing precedents, the chair would uphold this point of order, holding the motion out of order, leaving supporters no option but to appeal the ruling. Given that the appeal would itself be debatable, supporters would then still be faced with their original dilemma.
If the point of order attacked the motion offered by advocates of procedural change, on the other hand, but a sympathetic presiding officer chose not to rule on the point of order, and instead to submit it directly to the Senate for decision as involving a constitutional question, the situation would be reversed. Even if no constitutional question were involved, Senate Rule XX paragraph 2 accords the chair discretion to submit any procedural question directly to a vote of the Senate. In the past, the chair has sometimes exercised this discretion in cases in which previous precedential interpretations were lacking, although current practice reflects a strong presumption that the settlement of points of order will proceed on the basis of an initial ruling by the chair.
If the chair does submit a procedural question to the Senate for decision, the question is debatable, and would, accordingly, potentially be subject to filibuster. It would also, however, be subject to a motion to lay on the table. When a submitted point of order is tabled, the effect is the same as overruling the point of order, and thereby also holding the challenged action to be in order. In this way, a simple majority vote (on the non-debatable motion to table the point of order), by admitting the motion to proceed to a vote on the pending rules change proposal, might enable a simple majority to bring about a vote on the proposal itself.
This decision of the Senate on the submitted point of order could have the broader consequence of establishing precedent for a procedure under which the Senate could change its rules without having to face the potential that a supermajority vote would be required in the process. Even proceedings of this kind, however, would involve departures from established Senate practice in the process of approving procedural changes, at least insofar as the potential exercise of the chair’s discretion in submitting the point of order (if it was not based on a constitutional question) would run counter to currently accepted expectations.
Schumer and Harris may need to use this strategy to at least adopt an organizing resolution, and perhaps in order to conduct
any Senate business.
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