Professor Bruhl and Senate Continuity

Following up on my prior post concerning the December 12 legal scholar letter to the Senate, let us take a closer look at Professor Bruhl’s 2010 article (“Burying the Continuing Body Theory of the Senate”), which makes a considerably more nuanced argument than might be suggested by the title. While the December 12 letter suggests that the idea of “one continuous Senate for all time” is a farfetched idea never accepted by the Senate itself, Bruhl points out that “the continuing-body notion has been written into Senate Rule V” and acknowledges that “[p]arliamentary experts, respected scholars, and the Supreme Court all advance the notion that the Senate is a continuing body.”

Bruhl argues, however, that the early history of the Senate reflects a tradition of what he terms “mere continuity,” by which he means that although the Senate and its rules were understood to be continuing, there was no clear understanding or consensus as to what this meant in terms of insulating the rules against change. This contrasts with “entrenched continuity,” where the rules are continuing in nature and are also understood to restrict efforts to change the rules themselves.

It is important to note that nothing in Bruhl’s article remotely supports the December 12 letter’s assertion that “[i]n altering its rules over time, the Senate has consistently recognized its authority to change its procedural rules by a majority vote on the first day of a new Congress.” The December 12 letter relies on the fact that the Senate has made on a few occasions (all but one of which was in the 19th century) general revisions to its rules, but Bruhl points out that these revisions generated little controversy and therefore no reason for the Senate to consider or resolve the question of whether a minority could block the changes. (It is also noteworthy that none of these revisions took place on the first day of a new Congress so it is difficult to see how they could support the proposition advanced by the December 12 letter.) Therefore, he concludes that the actions of the early Senate do not “stand as much of a precedent for the majority’s power to change the rules over the dissent of a strong minority.”

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