Before considering the Senate’s action last week in amending its rules, I want to summarize one additional anti-entrenchment school of thought. We have already discussed the theory of the December 12 letter, which holds that a simple majority must be able to obtain a rules change at the beginning of a new Congress. An alternative theory advanced by Professors McGinnis and Rappaport is that a simple majority must be able to obtain a rules change at any time. As we have seen, there are significant problems with each of these alternatives, not the least of which is its inconsistency with Senate practice and precedent.
Professor Josh Chafetz, in an article entitled “The Unconstitutionality of the Filibuster,” suggests a third anti-entrenchment approach. Chafetz acknowledges that the Constitution does not require “immediate fulfillment of every wish of the legislative majority,” and he notes “all procedural rules delay the implementation of majority will to some extent, and all rulemaking has at least something of an entrenching effect.” However, he draws a distinction between “acceptable procedural rules” and “unacceptable permanent minority obstruction.”
Chafetz argues that the Senate’s “purported history” of unlimited debate cannot justify the current Senate rules because “the modern filibuster is not about debate.” Modern practice under Senate Rule XXII, he contends, is really a de facto requirement of 60 votes to pass any measure. In contrast, during the 19th century, although there were no formal limits on debate, it was rare for senators to use the privilege of unlimited debate as a means of blocking legislative measures and even in the 20th century, when the ability to filibuster became more formalized, it was generally used only for measures intensely opposed by the minority (particularly civil rights legislation) until the 1970s.
In Chafetz’s view, a “constitutionally conscientious Senator” would be justified in concluding that the current rules cross the line (which he acknowledges to be imprecise) between acceptable procedural rules and unacceptable minority obstruction. Professor Akhil Amar has expressed a similar view:
It is the right and duty of each senator to adjudicate for herself whether Rule 22 has in fact come to operate as an improper rule of decision rather than a proper rule of debate. And in adjudicating that question, the Senate, operating as a constitutional court of sorts, acts by majority rule, just as the Supreme Court itself does when adjudicating constitutional (and other) questions.
Akhil Amar, America’s Unwritten Constitution 368-69 (2012).
Chafetz likewise stresses that the Senate would be performing an adjudicatory function such as a court performs when it exercises the power of judicial review, as opposed to the “application of brute force” by the Senate majority to “displace legitimate rules.” As such, he argues that this function can be performed at any time and is not limited to the beginning of a new Congress.
Chafetz proposes the following constitutional principle to guide the Senate in determining the validity of a legislative rule: “a determined and focused legislative majority must be able to get its way in a reasonable amount of time.” This, he notes, is a “standard, not a rule.” Thus, “[a] constitutionally conscientious Senator would have to exercise her judgment in determining what the line should be between acceptable procedural rules and unacceptable permanent minority obstruction.”
I think Chafetz is quite right to focus on the judicial nature of the Senate’s function here and to approach the issue from the perspective of the “constitutionally conscientious Senator.” However, I believe that such as senator would be (rightfully) skeptical of the theory Chafetz advances.
In the first place, notwithstanding Chafetz’s effort to recast Senate Rule XXII as not being “about debate,” this is something of a slight of hand. It is true that the Senate chooses not to spend a great deal of time conducting floor debates on measures opposed by a minority sufficient to defeat cloture, but this doesn’t change the fact that Rule XXII governs when debate can be brought to a close. And Chafetz’s proposed constitutional principle states, in essence, that debate can only last for a “reasonable” amount of time.
This principle cannot be squared with historic Senate practice. Although he refers to the Senate’s “purported history” of unlimited debate, Chafetz does not dispute that Senate rules and practice have permitted unlimited debate for more than two centuries. It is true that in the (now fairly distant) past the minority was more selective about using unlimited debate to “permanently” (the better word would probably be “indefinitely”) obstruct legislative measures, Chafetz’ principle is still inconsistent with the tradition of unlimited debate.
Apart from Senate practice, it is difficult to see how one derives from the Constitution that debate must be limited to a “reasonable” period of time. Essentially the Chafetz/Amar argument amounts to this—when the Framers provided that each house should determine the rules of its proceedings, they must have intended that the rules would be reasonable and therefore if the rules are not reasonable, or do not operate reasonably, or seem to Professors Chafetz and Amar to be unreasonable, they must be unconstitutional. In my view this does not give the conscientious senator a very powerful reason to depart from the Senate’s longstanding traditions.
Moreover, a Senate rule explicitly provides when debate (on most matters) can be brought to a close. While our conscientious senator will no doubt accept that such a rule may be invalid if it “ignores constitutional constraints,” U.S. v. Ballin, 144 U.S. 1, 4 (1892), she is also likely to believe that a Senate rule is entitled to a presumption of validity. After all, it would hardly be consistent with performing her adjudicatory function to ignore the past constitutional judgment of the Senate when it enacted Rule XXII, not to mention when it rejected various constitutional attacks on that rule over the years.
Finally, the conscientious senator is likely to recognize the difficulty in adopting a constitutional standard that involves such open-ended discretion. As Professors McGinnis and Rappaport observed in critiquing a similar proposal (that valid legislative rules must promote deliberation or “informed discussion”), such standards are “hopelessly indeterminate and subjective.” In the real world of a legislative body, they are likely to be viewed as an invitation for the majority to set aside the rules whenever it is in its interest to do so. In fact, such standards undermine one of the core purposes of having legislative rules—to ensure, as Jefferson explained, “uniformity of proceeding in business not subject to the caprice of the Speaker or captiousness of the members.”
For these reasons our conscientious senator, faithfully applying the law of the Senate, will (IMHO) reject the Chafetz/Amar constitutional challenge to the Senate rules.