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.”

Senator Walsh’s Unsuccessful Attempt to Bury the Continuing-Body Theory

 Bruhl’s main argument is that mere continuity is not enough to explain or justify the entrenchment of Senate rules. This is certainly true in the sense that the Senate could have continuing rules that are not entrenched or, more precisely, are less entrenched that they actually are (as discussed below, all rules involve some degree of entrenchment). Moreover, it is possible that some rules entrenchment is impermissible for reasons having nothing to with whether the Senate is a continuing body.

As Bruhl observes, the continuing-body issue has played a pivotal role in Senate debates over rules entrenchment. It is worth noting, however, that it was the “anti-entrenchment” camp, beginning with Senator Thomas Walsh in 1917, that made it the central issue in the debate. As Bruhl explains:

Walsh conceded, as he had to, that the Senate had often been called a continuing body and that its rules had characteristically remained in effect from Congress to Congress, but he denied that the Senate had ever subjected these practices to serious thought. In his view, the Senate acted under general parliamentary law at the beginning of a Congress and could adopt rules by majority vote, essentially like the House.

Before considering the fate of Walsh’s argument, one might ask why he chose to dispute the Senate’s long-recognized status as a continuing body, rather than to argue that the Senate, even if a continuing body, must be free to change its rules at any time. Did Walsh, “viewed as the ablest constitutional lawyer in the Senate” (see L. McCartney, The Teapot Dome Scandal 116), simply make a tactical mistake? Or perhaps he assumed from the Blackstonian maxim that “one legislature cannot bind another” that a legislature must have some greater power to bind itself.  (As Bruhl suggests, this assumption is dubious at best).

I suspect that there was a more fundamental reason for Walsh’s approach. An argument that rules cannot be entrenched, in the abstract, is unlikely to persuade legislators because they instinctively understand that entrenchment is integral to having a system of legislative rules. Consider how Thomas Jefferson, in his Manual of Parliamentary Practice (which he prepared for his own guidance as President of the Senate), stresses the importance of adhering to established rules and precedents, rather than changing them for the convenience of the majority. .  He quotes the maxim that

nothing tended more to throw power into the hands of administration, and those who acted who acted with the majority of the House of Commons, than a neglect of, or departure from, the rules of proceeding, that these forms, as instituted by our ancestors, operated as a check and control on the actions of the majority, and that they were, in many instances, a shelter and protection to the minority, against the attempts of power.

Jefferson goes on to note that “it is always in the power of the majority, by their numbers, to shop any improper measures . . . , [but] the only weapons by which the minority can defend themselves . . . are the forms and rules of proceeding which have been adopted as they were found necessary, from time to time, and are become the law of the House. . . .”

If the majority does not follow “the law of the House,” there would be no “uniformity in proceeding in business not subject to the caprice of the Speaker or captiousness of its members.” In other words, without “entrenchment” there would be little point in having rules at all.

A second reason Walsh may have avoided a pure “anti-entrenchment” argument is more practical in nature. Prior to 1917, the Senate had not needed a formal process for changing its rules because all of the changes were apparently non-controversial and done by consensus. If the majority’s “right” to make controversial changes were to be recognized, however, a formal process would be needed to avoid chaos. But such a process would necessarily entail limitations on the majority’s ability to consider and approve changes whenever it might wish, thereby undermining the coherence of the pure “anti-entrenchment” position.

The House had come to this realization some years before. Although by the end of the nineteenth century, the House had accepted in theory the right of a majority to change the rules (which in practice meant the adoption of rules that enhanced the power of then-Speaker Thomas Reed), Speaker Cannon was not amused in 1910 when a group of rebellious members “asked to permit a proposition for a new rule to come in, although the rules prescribing the order of business require us to proceed to other matters, and it is claimed that the Chair would be justified in doing this because the Constitution says that ‘each House may determine the rules of its proceedings.’” VI Cannons Precedents § 3376. Cannon ruled against the rebels, relying on an 1873 precedent that had rejected the same argument and quoting then-Representative James A. Garfield’s retort that “[i]f the position . . . were correct, a Member could at any time interrupt our proceedings by bringing in a proposition for the amendment of the rules.”

From this perspective it becomes clearer why Walsh (and those who would later take up his argument) would see Senate continuity as a target of opportunity. By creating an “open season” for rules changes at the beginning of a new Congress, the anti-entrenchment forces may have hoped to sidestep the theoretical and practical difficulties outlined above. Of course, this solution only works if one assumes both a limited number of proposed rules changes and a willingness on the part of senators to forego or sharply curtail debate on those changes, which means assuming away the problem itself.

But even more problematically, attacking the idea of Senate continuity was an uphill climb, even in 1917. As Bruhl acknowledges, there are many examples of senators explicitly affirming the Senate’s continuity during the first 128 years of its existence. If there are examples of senators denying the proposition prior to Walsh in 1917, Bruhl does not identify them. The Senate’s continuity appears to have been more or less universally accepted.

In addition, as Bruhl 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 readopt rules at the beginning of the second or subsequent Congresses. The old rules simply remained in effect.” In other words, the Senate did not merely talk the talk of continuity; it also walked the walk.

As explained by Richard Arenberg and Robert Dove in Defending the Filibuster 124-25 (2012), many of the senators who shared Walsh’s goal of reforming Senate rules nevertheless made clear “they did not support Senator Walsh’s contention that the rules could be changed by a simple majority at the start of a Congress.” Then-Senator Warren Harding, for example, declared “I am not ready to accept the soundness of [Walsh’s] argument, that this is not a continuing body; and I cannot accept the contention that we must first enter into a state of chaos in order to bring about the reform which the Senator seeks.” Senator Francis Warren similarly remarked: “I do not object to some manner of procedure that may terminate what sometimes become intolerable; but I am not willing yet to take the ground that every two years we are at sea without rudder or compass regarding rules.”

Perhaps the best illustration of the ineffectiveness of Walsh’s argument is the Supreme Court’s decision in McGrain v. Daugherty, 273 U.S. 135 (1927). The question before the Court was whether the Senate had the constitutional authority to imprison Mal Daugherty (Harry’s brother) for failing to comply with a subpoena issued by a Senate select committee investigating Teapot Dome.

The committee in question had been established during the 68th Congress, which expired in March 1925. The Court notes that this might have mooted the case, had the subpoena been issued by a House committee, but “it cannot well be the same with the Senate, which is a continuing body . . .[with] two-thirds always continuing into the next Congress, save as vacancies may occur through death or resignation.” The Court cites Hinds Precedents for the proposition that the Senate is a continuing body, but it gives no hint that this proposition is in any way controversial or disputed.

Here it bears mentioning that the Senate itself was, in effect, a party to the McGrain case (McGrain being the deputy sergeant at arms who actually arrested Mal Daugherty), and one can only assume that the Senate did not inform the Court that there was any doubt or controversy on this critical issue. Indeed, given that Senator Walsh was probably the single senator most personally invested in the Teapot Dome investigation, it does not seem unreasonable to assume that he tacitly approved the position as well.


Precedent and the Law of the Senate

 This brings us to the 95 years of Senate practice and precedent following Walsh’s argument, during which it presumably had ample opportunity to give “serious thought” to its merits. It should hardly be necessary to state that the Senate has never accepted Walsh’s position, though the December 12 letter repeatedly suggests that it has. The falsity of this suggestion, which I reiterate is in no way validated by Bruhl, is amply demonstrated by the following developments since 1917: (1) the Senate has continued to treat its rules as continuing from Congress to Congress, and has never readopted or changed them on the first day of a new Congress; (2) the Senate amended its rules to provide explicitly that they continue from Congress to Congress, and may only be changed in accordance with the rules themselves; (3) the Senate has never purported to act under general parliamentary law at the outset of a new Congress; and (4) the Senate has never permitted a simple majority to end debate on a rules change, despite repeated claims by the anti-entrenchment camp that it had the power to do so.

Bruhl himself is ambivalent on what this precedent and practice shows. On the one hand, he recognizes that “the continuing-body notion has been written into Senate Rule V,” even going so far as to suggest that challenging it at this point would like arguing that Marbury v. Madison was wrongly decided. On the other hand, he points out that the actual legal reasoning underlying Senate votes on entrenchment-related points of order can be difficult to discern. Thus, while acknowledging that Senate precedents could be reasonably interpreted as definitively rejecting the Walsh theory (an interpretation that he embraced in an earlier article), he contends that they could reasonably be construed as leaving the question unsettled.

It seems to me that some of this confusion could be cleared up by more precisely defining the various questions at issue. In this regard I must observe that Bruhl’s distinction between “mere continuity” and “entrenched continuity” strikes me as unhelpful. It seems to me, and I suspect that it seems to virtually every senator who has thought about this, that the Senate is either a continuing body or it is not. The implication of this for other legal questions, including the entrenchment of Senate rules, is a separate issue.

It should be noted here that whether or not the Senate is a “continuing body” is not necessarily a question of constitutional dimension. Certainly the Constitution does not speak directly to the issue. Thus, it is either a question that the Constitution leaves for each house to decide for itself or a question that must be answered based on debatable inferences from constitutional text and structure. Much of Bruhl’s criticism of the Senate’s continuing-body “jurisprudence” is based on the alleged inconsistency between the House’s answer to this question and that of the Senate, but this difference is problematic only if one assumes that (a) the question is of the latter rather than of the former type and (b) the McGrain Court was mistaken in its view that the different constitutional structures of the House and Senate justified different conclusions as to their continuing status. And even if both these assumptions are correct, it seems to me no more remarkable that the House and Senate differ on certain constitutional issues than that the courts of two states reach different legal conclusions from the same body of common law precedent.

That being said, it seems to me that the “law of the Senate” is firmly settled, indeed as settled as any such matter can be, in favor of the proposition that the Senate is a continuing body. The unbroken practice of the Senate, from the first day of its existence to the present moment, can only be justified if the Senate, unlike the House, is a continuing body.

While the Senate has always treated its rules as continuing in nature, for more than a half of a century the rules have explicitly affirmed the continuing-body theory, and the Senate has declined every invitation to change them in this regard. The Senate’s status as a continuing body is such a matter of “black-letter law” that it is reported on the Senate website without any suggestion of controversy. It is true that senators like Walsh have challenged that status from time to time, but the challenge is somewhat peculiar in nature. No senator seems to object to the Senate’s continuity except to the extent that it is seen as a barrier to rules changes that the senator favors. No senator seems to argue seriously that the Senate should function like the House, where on the first day of a new Congress the body must elect officers, adopt rules and form its committees.

Perhaps for this reason the modern incarnation of the Walsh theory has become a “House-lite” version under which the Senate is empowered, but not required, to take certain actions on the first day of a new Congress. Exactly why the Senate would have these powers on the first day, but only on the first day, remains obscure. This theory would put the Senate at odds not only with its own traditions, but with those of the House and, as far as I know, every other legislative body. (Bruhl notes that there are some legislatures where the rules continue but are not entrenched, but he does not suggest that there are legislatures with a “one day only” anti-entrenchment rule). If the House rules “die” at the end of each Congress, it seems, the Senate rules would just be very sick, so that they can be easily finished off by a resolute majority.

The only obvious attraction of the “House-lite” theory is that it offers the benefits of Walsh’s original attack on the continuing Senate, while it attempts to “distinguish” the mountain of Senate precedent refuting Walsh’s position. But when considering whether this theory is also foreclosed by Senate precedent, one should consider not only direct evidence that the Senate has rejected the theory (which I will discuss in future posts), but whether the theory has sufficient logical coherence to fit within that body of precedent. And here I think Senator Sam Ervin was exactly right when he noted in 1967 that “if a majority can act as proposed . . . at the beginning of the session, it can do act on any day of the session. . . . If the Constitution does not permit the Senate to adopt rules which can bind a majority of the Senate at the beginning of the session, it does not permit the Senate to adopt rules which can bind a majority at any time in the session.”

In short, the Senate’s continuity is clearly established under the law of the Senate and attempting to overturn this precedent would be, as Bruhl suggests, much like overruling Marbury v. Madison. Thus, the December 12 letter’s reliance on the concept of a “new Senate” is mistaken. In addition, the “House-lite” theory advanced by the letter is likewise foreclosed under a fair reading of Senate precedent.

Note that these conclusions do not necessarily answer the question of whether the Constitution forbids or places some limitation on the entrenchment of Senate rules. Nor does it answer the following: In what sense, if any, is the Senate obligated to follow “the law of the Senate”? Are there circumstances under which it would be proper for the Senate to ignore or change the law of the Senate? How should a conscientious senator address the claim that the Senate rules are unconstitutionally entrenched?

I will try to address these questions in future posts.

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