Constitutional Option Expiring?

The Hill reports that the Senate will adjourn the “magic” first legislative day tonight, thereby ending the opportunity to change Senate rules with a simple majority:

Under the so-called Constitutional option, on the first legislative day of a new Congress, senators can ask for a ruling from the presiding chair to amend the Senate rules and then can ratify such changes with a simple majority vote.

But senators who favor that procedural tactic for changing the rules acknowledge it’s only possible on the first legislative day of a new Congress.”

I suppose the rationale for this view would be that by adjourning without changing the rules, the Senate has adopted the old rules by implications.  But even assuming that there are senators who believe this (and Senator Merkley, at least, has stated that the rules can be changed by a majority at any time), the Senate could either continue to extend the legislative day or adopt a resolution preserving the opportunity to argue that the rules can be amended by a majority (as happened in 1975, when filibuster reformers wanted to guard against the implication that they had waived their rights).  The fact that these things are not being done indicates that a majority of the Senate is not in favor of invoking cloture by a simple majority vote.

Could Arizona Replace Representative Giffords?

The answer is yes.  Or no, depending on which edition of the Washington Post you read. On Monday, the Post ran an online story entitled “Arizona statute could endanger Giffords’ hold on seat” (which appears to be no longer available on the Post website) explaining that an Arizona statute requires that an office be deemed vacant if the officeholder fails to discharge the duties of the office for three consecutive months.  The article contends that this law could require that Representative Giffords’ seat be declared vacant, although it also indicates that the Arizona Governor and other officials would be loath to take such a step.

On Tuesday, however, the print version of the Post explained that “As Gabrielle Giffords continues recovery, lawyers say Arizona statute won’t endanger seat.”  This time the Post explains how “Washington lawyers” have debunked its original story (it doesn’t put it that way, of course).  According to these lawyers, “any determination of a vacancy would have to be made by Congress.”  Paul Bender is quoted as saying that “the state has no right to say when the office becomes vacant.”

So are these experts right?  Up to a point.  The original story was certainly mistaken to the extent that it implied Arizona had the authority to define what constitutes a vacancy in a congressional office.  The issue of whether a vacancy has occurred is a constitutional question arising under the House Vacancies Clause (Article I, section 2, clause 4), which provides that “when vacancies happen in Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.”  It is clear that neither the state nor the executive authority has carte blanche to define for themselves what constitutes a vacancy, and it is likely (though somewhat less clear) that they have no discretion in the matter.  In other words, if a constitutional vacancy occurs, the Governor has the authority, indeed the duty, to call a special election, but the fact that the Governor (or the state) believes that a vacancy has occurred does not make it so.

So how does the Governor know if a vacancy has occurred?  The vast majority of vacancies have been created by death, expulsion, or resignation, and there is seldom any doubt in these types of cases (although there are sometimes ambiguous resignations which require the exercise of judgment).  In the rare instances which do not fall into one of these categories, Governors have not acted on their own, but only after the House has declared a vacancy.  Nevertheless, there would appear to be no constitutional impediment to the Governor acting on her own initiative (nor, to my knowledge, has House precedent prohibited such action). Accordingly, the Arizona Governor could call a special election on the grounds that (in her opinion) Giffords’ seat has become vacant within the meaning of the House Vacancies Clause.

This decision could be challenged in state or federal court (just as the attempt to recall Senator Menendez was recently challenged in and invalidated by the New Jersey Supreme Court).  It is possible that the court would not reach the merits of  the case, however, on the grounds that it is the House which is the constitutional judge of the election and qualifications of its members. In the event that a special election were held, it would be up to the House to decide whether to seat the victor, which would necessarily entail a determination as to whether the seat was vacant in the first place.

On the merits, the answer is not so clear.  The Constitution does not define what constitutes a vacancy.  This makes it distinguishable from cases that are often cited regarding the qualifications of members, because the Constitution expressly identifies those qualifications.  It might be argued that declaring a vacancy when a member is incapacitated is a backdoor way of establishing a new qualification for members, but this does not answer the real question– are there circumstances in which a member’s incapacity renders the office vacant?

In general, neither the House nor Senate have taken cognizance of lengthy incapacities of Members.  As explained by Norm Ornstein in 2002 testimony before the House Judiciary Subcommittee on the Constitution, “[m]any members have stayed in their elected positions for months or longer while comatose or clearly unable to perform their normal duties.” In one case, however, the House declared a vacancy when a congresswoman-elect was in a coma and unable to take the oath of office.  Conceivably this precedent could be extended to members who have been sworn in but become incapacitated to the point that they cannot perform any of the duties of the office.  Doing so, however, would give rise to difficult line-drawing problems (how does one decide whether a member is permanently or merely temporarily incapacitated?).

In short, while the conventional wisdom holds that the Constitution does not permit a seat to be declared vacant because of the incapacitation of its occupant, it is more accurate to say that the matter is unsettled.  That in turn gives rise, as Professor Sandy Levinson notes, to a significant uncertainty as to how the Congress would respond in the case of mass incapacitation.

Washington Post on Speech or Debate

The Washington Post has a front page story today on the Speech or Debate Clause, and how it has been used to block certain investigations over the past few years.  The story touches on a number of criminal investigations of Members of Congress over the past few years.  Of particular interest, it discusses the legal wrangling over the wiretapping of former Representative Rick Renzi.  Melanie Sloan of CREW characterizes the House’s position in Renzi case as “basically” that “if you are a member of Congress, you cannot be wiretapped under any circumstances.”

As I discussed here, (“Does BLAG believe that Members of Congress are Immune from Federal Wiretaps”), Sloan appears to be right about this.  Irv Nathan, the former House Counsel, is cited (though not quoted) as responding that “prosecutors can use evidence collected through wiretaps or other means but must exclude anything related to legislative actions.”  This makes it sounds as if wiretaps are permissible so long as prosecutors do not use portions of conversations that involve legislative matters.  But the House’s position, as I understand it, is that wiretaps may not even intercept the privileged portions of conversations, and that prosecutors are prohibited from reviewing (or having reviewed) the transcripts from wiretaps to determine which portions may be privileged.  This makes the House’s position very close to a de facto ban on wiretapping of Members (or their staffs).

Incidentally, congratulations to Kerry Kircher, the long-time House Deputy General Counsel, whom Speaker Boehner has promoted to General Counsel.

I’m Not Dead . . . . I’m Just in Congress.

In Impeachment and Assassination, Professor Josh Chafetz makes the inventive argument that impeachment, at least presidential impeachment, is best viewed as a metaphorical form of political assassination.  Chafetz argues that impeachable offenses should be viewed as “assassinable” offenses, by which he means the type of offenses that warranted assassination in historical instances known to the Framers.  To illustrate the scope of such offenses, he provides a fascinating description of two examples that were foremost in the mind of Benjamin Franklin– the assassination of Julius Caesar and the execution of Charles I.

Chafetz’s provocative theory is challenged by Seth Tillman in The Originalist Who Came In From The Cold: A “New” View of the Incompatibility Clause, the Removal & Disqualification Clause, and the Religious Test Clause–A Response to Professor Josh Chafetz’s Impeachment & Assassination.  Tillman focuses on Chafetz’s claim that impeachment (and conviction) is the equivalent of “political death.”  Tillman argues that impeachment is unlike death, even metaphorically speaking.

I tend to agree with Tillman on this.  To begin, being a former president, even one who is a private citizen, is not quite political death.  How much like political death it is will depend on a variety of circumstances, of which impeachment is only one.  No president, of course, has ever been impeached and removed, but former President Clinton (impeached but not removed) seems to be enjoying quite an influential post-presidency, although he holds no formal office.

Moreover, as Chafetz acknowledges, the Constitution does not empower the Senate to disqualify anyone from holding state office.  Tillman points out that this means a disqualified official can serve in positions such as Governor or state legislator, offices which are not only significant in themselves but may involve the exercise of powers that affect the federal government (such as a Governor’s appointment of an interim US senator to fill a vacancy).  While the fact that disqualification is not applicable to state officers is understandable on federalism grounds, it tends to attenuate the “impeachment as political death” metaphor.

Tillman points to a number of other positions that a disqualified officer might hold; these include White House advisor (at least if one accepts the proposition that such an advisor is not an “officer” under the Appointments Clause), presidential elector, and delegate to an Article V convention to propose amendments (or to a state ratifying convention).  And, President Clinton might add, First Spouse.

Even more tellingly, as discussed in a prior post, a disqualified officer is still eligible to serve in Congress.  Indeed, a current Member of Congress, Representative Alcee Hastings, was formerly a federal judge who was impeached and removed from office (though not disqualified).  Hastings’ post-impeachment experience can hardly be called a political death.

Perhaps most importantly, the Constitution does not require that the Senate disqualify those who are impeached and convicted.  Thus, if the Senate were ever to remove a sitting President, it is free to decide that his “high crimes and misdemeanors” do not merit disqualification at all.  In that case, the former president would clearly suffer no “political death.”

All of which suggests that the “impeachment as political death” metaphor is considerably  overstated.  Tillman, however, is not content to stop there.  He contends that the Disqualification Clause does not authorize the Senate to disqualify anyone from future service as president (or vice president).  This contention I will address another day.

Why Is Tomorrow Different From All Other Days?

In today’s Washington Post, Senator Tom Udall asserts that the Senate rules can be changed by a simple majority, notwithstanding Senate Rule XXII, which requires a two-thirds vote in order to bring debate to a close on a motion to amend the Senate rules.  According to Udall, “[o]n the first day of the new session, the rules can be changed under a simple, rather than two-thirds, majority.”

What is Udall’s basis for saying that the rules can be changed on the first day?  He doesn’t say.  But his colleague, Senator Jeff Merkley, attempted to explain this in an MSNBC interview last night.  Merkley says that “according to the Constitution, a majority can set up the Senate, they can do that at any time, but, according to precedent, it has been done at the start of a two year cycle.”  He later reiterates that a majority can, under the Constitution, amend the rules “at any time,” but that “by precedent, by tradition, which weighs heavily in the Senate,” it is supposed to be done at the beginning of a new Congress.

Unfortunately for Senator Merkley, there is no Senate precedent for amending the Senate rules by a simple majority at the beginning of a new Congress.  None at all.  Senate practice does not even support using the first day to consider amendments to the Senate rules.  This CRS report explains that “the Senate follows a well-established routine on the opening day of a new Congress” and describes in detail the activities, such as swearing in new members, which the Senate performs.  There is no mention of amending the Senate rules.

It is true that there is precedent for claiming that the Senate rules can be changed by a simple majority on the first day of a new Congress.  This claim is based on the theory, apparently originated by Senator Walsh in 1917, that the Senate’s rules expire at the end of a Congress and that it operates, at the beginning of a new Congress, under general parliamentary law.  This claim is contrary to unbroken Senate practice as well as the explicit provisions of Senate Rule V (which provides that the Senate rules “continue from one Congress to the next Congress”).  As discussed in my last post, accepting this claim would also have unsettling consequences for the legitimacy of the Senate itself.

For present purposes, however, what is significant is that there is no Senate precedent which accepts this claim.  To the contrary, as explained in a 2005 CRS report (written when Senate Republicans were threatening the “nuclear option” to eliminate filibusters of judicial nominations), the Senate has clearly rejected it on at least two occasions.  In 1957, Senator Anderson used this argument to support his motion to adopt a new package of rules on opening day.  The Senate voted to table his motion (despite a favorable ruling from Vice President Nixon).  Again, in 1967, Senator McGovern made the same argument, which Vice President Humphrey submitted to the Senate for a vote.     The Senate again voted to reject the argument, sustaining a point of order against McGovern’s motion.  As CRS notes, if the Senate were to adopt the claim that a simple majority can amend the rules at the beginning of a new Congress, it “would have to overturn these two precedents, perhaps among others.”

There is, therefore, no existing precedent supporting the Udall/Merkley theory.  But suppose the Senators are successful in convincing the Senate to establish a new precedent?  It would be utterly impossible to limit that precedent to the opening day of a new Congress.  The only possible justification for ignoring the explicit provisions of the Senate rules would be that the Constitution itself prohibits entrenching Senate rules in the manner set forth in those rules.  But, as Senator Merkley himself acknowledges, that  position means that the Senate rules can be amended by a simple majority “at any time.”  The first day of a Congress is no different in that regard than any other.

Even if the Senate were to declare that the rules can be amended (by simple majority)only on opening day, this new precedent would be worthless.  After all, if the Senate is going to disregard prior precedents and two hundred years of unbroken practice, it seems unlikely that any new precedent would constrain a majority from amending the Senate rules at any time.  As the 2005 CRS report suggests, it is difficult to see how the Senate could resist becoming like the House, “in which debate and deliberation can be terminated at the option of the majority,”  or to avoid “a chaotic environment in which a temporary majority could change precedents any time it wanted to.”

The Radical Implications of Rejecting the Senate’s Continuity

As discussed in my last post, the effort to repeal the Senate filibuster rule is premised on the proposition that the Senate is not a continuing body.  Professor Aaron Bruhl (see “Burying the ‘Continuing Body’ Theory of the Senate”) and others contend that the Senate, like the House, is a temporary body that “dies” at the end of each Congress.  By longstanding tradition and precedent, the House’s rules, along with its officers and organization, expire when the Congress ends every two years (at noon on January 3, pursuant to the 20th Amendment).  When the newly elected House convenes (this year on January 5), it will proceed to elect a new Speaker, adopt new rules and choose new officers.  (Until it adopts new rules, it will act under general parliamentary law, not under the rules of the prior House).

In contrast, as Professor Bruhl acknowledges, the Senate has never operated in this fashion.  He explains:

“Ten days after the Senate first achieved a quorum, in April 1789, it adopted a short set of rules.  Unlike the House, the Senate did not adopt rules at the beginning of the second or subsequent Congresses.  The old rules simply remained in effect. . . .  The Senate changes individual rules from time to time, but it has readopted or made general revisions to the rules on only a few occasions throughout its history.”

Despite this seemingly powerful constitutional history, Bruhl argues that the Senate is not a continuing body, and that its rules therefore do not continue from Congress to Congress.  Specifically, he contends that the Senate is not continuous in any meaningful way that differs from the House, and that therefore the continuity rules for both should be the same.

The potential implications of this position would seem to be enormous.  It would mean that for the vast majority of its history the Senate has acted pursuant to rules that were not validly adopted.  This would probably not affect ordinary legislation, but it could impact individuals who have been subjects of the Senate’s confirmation, contempt or impeachment powers.  For example, the Senate just convicted and disqualified Judge Porteous in accordance with rules that (allegedly) expired long ago.

Perhaps to avoid these implications, Bruhl suggests that perhaps the Senate’s rules are continuing in a “weak sense,” namely that they continue until the next Congress, when the Senate can choose to either change or readopt them.  As he points out, the House for a time in the late 19th century adopted this version of continuity for its own rules.  

This suggestion, however, would not save the Senate’s rules.  The Senate has not continued its rules from Congress to Congress because it voted to readopt them, as occurred in the case of the House.  It believed that the rules remained in effect unless changed in accordance with specified procedures, regardless of whether a majority of the Senate wanted them to do so.  One cannot construe this belief as an implicit approval of the rules as they have existed at any particular point in time.

In addition, even this weak version of continuity would destroy the symmetry between the House and the Senate because the former has rejected the notion that its rules can continue even until the new Congress can explicitly vote to re-adopt or change them.  Instead, the House believes, apparently as a matter of constitutional theory, that it is required to operate under general parliamentary law rather than the old rules.  Thus, acknowledging even the “weak continuity” of the Senate’s rules would seem inconsistent with Bruhl’s theory.

At the end of the day, Bruhl makes clear that his real objection is to the “entrenchment” of Senate rules (ie, the requirement that a supermajority act in order to change them), rather than to the continuity of those rules.  But entrenchment is an entirely separate issue from continuity.  Bruhl himself recognizes this– noting that the objection to entrenchment is the same regardless of whether the Senate is a continuing body.  This makes the attack on the Senate’s continuity particularly perplexing.

It is true, of course, that those who have wished to challenge the Senate’s rules, beginning with Senator Thomas Walsh in the early 20th century, have seized upon the non-continuity theory as a means of achieving their goals.  The fact that it is the best argument the reformers could think of, however, does not make it a good argument, and does not obscure its utter inconsistency with the Senate’s unbroken history and precedents.