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.