As I mentioned in my last post, Professor Chemerinsky’s description of the 1975 Senate vote in sustain Majority Leader Mike Mansfield’s point of order changed slightly from his 1997 article to his 2005 article. In the former he said that the vote “establish[ed] that a majority of the Senate would abide by the supermajority requirements for amending Senate rules,” while in the latter he said that the vote “establish[ed] that the majority of the Senate at that time favored the supermajority requirement for amending the Senate Rules.”
What is interesting is that neither statement describes the Senate’s vote as a legal ruling. According to Vice President Rockefeller’s ruling on Mansfield’s point of order, the question presented to the Senate was whether invoking cloture on Senator Mondale’s motion to amend the rules was subject to a supermajority vote under Rule XXII, as Mansfield contended, or whether a simple majority had the constitutional authority to invoke cloture, as supporters of Mondale’s motion argued. By upholding Mansfield’s point of order, the Senate clearly understood it was resolving this legal question.
A lawyer (or Senate parliamentarian) might be expected to describe the Senate’s action something like this: “The Senate rejected a constitutional challenge to the continuing validity of Rule XXII as applied to a motion to amend the rules in a new Congress.” Or, as the late Senator Robert Byrd wrote in his history of the Senate: “by this action, as the Rules Committee’s published history stated, the Senate ‘erased the precedent of majority cloture established two weeks before, and reaffirmed the continuous nature of the Senate rules.’” See R. Arenberg & R. Dove, Defending the Filibuster 131 (2012).
To understand the difference between these types of statements and those made by Chemerinsky, one might consult the British legal philosopher H.L.A. Hart, who distinguishes between the “external” and “internal” points of view with regard to a legal system: “When a social group has certain rules of conduct, . . . it is possible to be concerned with the rules, either merely as an observer who does not himself accept them, or as a member of the group which accepts and uses them as guides to conduct.” H.L.A. Hart, The Concept of Law 89 (1961). Even within the external point of view, there are different gradations. For example, “the observer may, without accepting the rules himself, assert that the group accepts the rules, and thus may from outside refer to the way in which they are concerned with them from the internal point of view.” Id. (emphasis in original). Alternatively, the observer may be “content merely to record the regularities of observable behavior in which conformity with the rules partly consists and those further regularities, in the form of hostile reaction, reproofs or punishments, with which deviations from the rules are met.” Id.
A viable legal system, Hart argues, requires that certain participants see it from the internal point of view, meaning that they accept its rules as imposing legitimate obligations:
What is necessary is that there should be a critical reflective attitude to certain patterns of behaviour as a common standard, and that this should display itself in criticism (including self-criticism), demands for conformity, and in acknowledgments that such criticism and demands are justified, all of which find their characteristic expression in the normative terminology of ‘ought,’ ‘must,’ and ‘should,’ ‘right’ and ‘wrong.’
Id. at 57. An important characteristic of obligation or duty, in turn, is that they may require the person owing the duty to something other than what he pleases: “Hence obligations and duties are thought of as characteristically involving sacrifice or renunciation, and the standing possibility of conflict between obligation or duty and interest is, in all societies, among the truisms of both the lawyer and the moralist.” Id. at 87.
Chemerisnksy’s description of the Senate’s 1975 precedent is either a prediction about the Senate majority’s future action (it “would abide” by supermajority cloture) or a statement about its motivation (it “favored” supermajority cloture), but he misses the element of duty or obligation. No doubt many senators were influenced by political or practical interests of the sort he identifies, but it seems equally likely that many did not believe themselves free to vote however their interests might dictate. Instead, these senators believed they were obligated to decide whether Rule XXII was binding and to do so in accordance with Senate practice and precedent.
Chemerisnky is by no means the only commenter on the Senate legal system who tends to lead sharply toward the external point of view. See, e.g., M. Gold & D. Gupta, “The Constitutional Option to Change Senate Rules and Procedures: A Majoritarian Means to Overcome the Filibuster,” 28 Harv. J. of Law & Pub. Pol’y 205 (2004). These commenters conflate what the Senate could do as a matter of raw power with what the Senate could legitimately do under the power to determine the rules of its proceedings.
Consider the constitutional power of each house to expel a member “with the concurrence of two thirds.” Suppose the Vice President, as presiding officer of the Senate, were to “interpret” this constitutional provision as permitting a simple majority to expel a senator. Would the Senate be free to uphold this ruling? Given that it would take only a simple majority to uphold or overrule the Vice President, would a majority therefore have the “theoretical power” to expel a member (regardless of how it voted)?
Surely the answer to these questions must be no, but how is the hypothetical different than the Senate’s voting on the continuing validity of Rule XXII? Unlike the latter (but see the 1997 Chemerinsky article), the former issue may be judicially cognizable. See Powell v. McCormack, 395 U.S. 486 (1969). But while a court might grant monetary or other relief to a wrongfully expelled senator, it could not order the Senate to permit him to participate in its proceedings. More importantly, the absence of judicial review is not a license for the Senate to act unlawfully or improperly. As Professor Bruhl notes, “it is precisely because no outside body would intervene that the legislature itself must scrupulously judge the propriety of such actions.” 95 Iowa L. Rev. at 1420-21.
It may also be objected that the hypothetical presents an unusually clear example of a textual limitation on the Senate’s power. Any attempt by the Senate to redefine the supermajority requirement for expulsion as a simple majority would be unjustifiable in a way that a refusal to apply Rule XXII would not.
This objection, however, goes to the difficulty of answering the question regarding Rule XXII’s continuing validity, not to the nature of the task before the Senate. If the Senate has an obligation to answer legal questions correctly, presumably it extends to hard as well as easy questions. No doubt the more difficult the question, the greater the temptation to allow the outcome to be determined by the political expediency of the moment. The conscientious senator, though, will resist this temptation, and even the non-conscientious senator will be cognizant of the need for intellectual coherence and consistency in answering the legal question.
If, on the other hand, the senator adopts the external point of view, there is no reason why it should be limited to hard cases. This point is nicely illustrated by a paper recently posted on SSRN entitled “The Majoritarian Senate” (Dec. 26, 2012). The authors (Gregory Koger and Sergio Campos) argue that “the current Senate procedures that are used for filibustering can be changed by a simple majority of Senators at any time using ordinary Senate procedures.”
Among the possible strategies for achieving this result would be for those favoring majority cloture to raise a point of order that majority cloture suffices under Rule XXII, notwithstanding its explicit language to the contrary. The authors acknowledge:
[T]he downside of this strategy is that it is an especially bold reinterpretation of the existing rule. While many words and phrases are subject to multiple meanings, the phrase “three-fifths of the Senators duly chosen and sworn” is unambiguous and hard to reconcile with a simple majority threshold. We include this proposal, however, to highlight that this sort of action is possible. The reinterpretation is problematic not because it is “incorrect,” but because the reforming coalition would have to forthrightly acknowledge and defend an especially obvious power play.
Id. at 17 (emphasis in original).
Well, yes, reinterpreting one number to mean another number would be “especially bold,” but if there is no obligation to interpret rules in accordance with their plain language, or in accordance with how they have been understood and applied in the past, or in any other consistent or predictable manner, what’s the problem?
But there is a problem. For reasons suggested in prior posts, a legislative body that purports to act under “rules” which it feels free to flagrantly misinterpret, misapply or simply ignore does not have rules worthy of the name. Even the majoritarian House recognizes as much. As Speaker Reed observed: “Every parliamentary body has to have rules for its government, otherwise it would have no government at all; and upon adherence to those rules depends its success as a parliamentary body.” III Hinds Precedents § 2567 (1898).
Most senators instinctively understand, advice from constitutional scholars notwithstanding, that they do have an obligation to faithfully interpret and apply the Senate’s rules, and in doing so to consider, if not automatically to adhere to, its practices, precedents and traditions. In short, they see the Senate rules from an internal point of view. Because of this, they understand that it is, or at least could be, “wrong” to depart from the Senate’s longstanding interpretation and application of its rules, just as Professor Chereminsky argued in 2005.
For further elaboration on the obligation of the conscientious senator to apply the Senate’s rules, please see a paper I wrote in early 2011: Rules, Entrenchment and the Conscientious Senator (in the form of a letter to “Josh,” Professor Josh Chafetz, and “Aaron,” Professor Aaron-Andrew Bruhl).