Legal Scholar Letter to the Senate on Procedures for Changing the Rules

A group of prominent constitutional scholars has sent this letter to the Senate. The letter makes some strong claims about the Senate’s procedures for amending its rules. The introduction gives the flavor:

The current debate over whether to alter the 113th Senate’s rules raises serious questions of policy and political judgment. We take no position on the wisdom of any proposed change. Some, however, have sought to elevate the debate to constitutional dimensions by suggesting that it is institutionally improper for a new Senate to alter the Senate’s rules by majority vote because the internal procedures adopted by prior Senates have required a two-third majority to allow a vote on a motion to alter the rules.

 With respect, such a concern confuses the power to change the Senate’s rules during a session, with the unquestioned constitutional power of each incoming Senate to fix its own rules unencumbered by the decisions of past Senates. The standing two-thirds requirement for altering the Senate’s rules is a sensible effort at preventing changes to the rules in the midst of a game. It cannot, however, prevent the Senate, at the beginning of a new game, from adopting rules deemed necessary to permit the just, efficient and orderly operation of the 113th Senate. Thus, bound up in the current debate over filibuster reform is a related, but distinctly separate, question: What are the limits of each new Senate’s authority to determine its own rules of procedure?

 The undersigned—scholars in the fields of constitutional law and Senate procedure and history—submit this letter to clarify the constitutional framework that governs the Senate’s rulemaking authority. We agree with the overwhelming consensus of the academic community that no pre-existing internal procedural rule can limit the constitutional authority of each new Senate to determine by majority vote its own rules of procedure.

At the outset, it should be noted that the letter is addressing two issues: (1) whether or not the Senate is a “continuing body” (if it is, there is no such thing as a “new Senate”); and (2) whether the Senate rules can be “entrenched” in a manner than inhibits change by the vote of a simple majority.

The answer to the second question may or may not turn on the answer to the first. According to the authors of this letter, it does. They maintain that the Senate is not a continuing body (although at one point they call it a “partially-continuing body”) and that therefore each “new Senate” must be free to change the rules (or adopt entirely new rules) without any entrenching effect of a “pre-existing internal procedural rule.” They contend this authority may be exercised by the “new Senate” on its first day, but thereafter the rules may be entrenched for the remainder of the Congress.

The letter cites a grand total of two academic works: (1) Aaron Bruhl’s “Burying the ‘Continuing Body’ Theory of the Senate,” 95 Iowa L. Rev. 1401 (2010) and (2) Catherine Fisk & Erwin Chemerinsky, “The Filibuster,” 49 Stan. L. Rev. 181 (1997). Chemerinsky is a signatory to the letter; Bruhl and Fisk are not.

This might seem somewhat thin gruel to support an “overwhelming consensus of the academic community,” but at least the cited works support the letter’s position, right?

We shall see.






Common Cause’s Opposition to the Motion to Dismiss

Common Cause has filed its opposition to the Senate’s motion to dismiss its lawsuit seeking to have the filibuster declared unconstitutional. Its brief clearly demonstrates that there is no persuasive answer, and in some cases no answer at all, to the problems identified in my earlier post on this subject. A few observations should suffice.

The nature of the alleged injury. Common Cause claims that the plaintiffs were injured by the use of the filibuster to block specific bills, namely the DISCLOSE and DREAM Acts. Yet it says that it is irrelevant whether these bills would have become law in the absence of the filibuster. Brief at 3 (“the plaintiffs need not show that both bills would have been enacted but for the filibuster to have standing.”). Merely showing that a bill benefiting them might have passed but for the filibuster demonstrates a procedural injury, it argues, and there is no need to show an actual substantive injury.

By so lowering the bar, Common Cause would create a class of standing considerably broader than taxpayer standing (which the courts have rejected). Surely every person in the United States, if not the world, can claim that they would have benefitted from a law that might have passed but for the filibuster.

At the same time, Common Cause continues to rely on the claim that the two laws in question would have been enacted but for the filibuster. Brief at 42 (DREAM Act “would have been enacted into law, but for the use of Rule XXII”); 43 (“The DREAM and DISCLOSE Acts would have been enacted but for the defendants’ use of Rule XXII.”). It thus seeks to have it both ways—to claim a substantive injury for purposes of distinguishing the plaintiffs from the world at large, while relieving itself of the burden of proving such an injury.

Continue reading “Common Cause’s Opposition to the Motion to Dismiss”

Common Cause’s Impossible Dream

When Common Cause filed this lawsuit challenging the constitutionality of the filibuster, the legal establishment scoffed. Critics called it “ridiculous,” “specious,” and “frivolous.” They said the courts would toss the case on jurisdictional grounds without reaching the merits. They said a rag tag bunch of public interest lawyers, Democratic House Members and illegal aliens stood no chance against the world’s greatest deliberative body. (Ok, I might have made up that last part).

But as much as we like a good David versus Goliath story, I would bet on Goliath here. Apart from the merits of any constitutional objection to the filibuster (or lack thereof, as I have argued here and here; see also Ed Whelan’s comments), the Common Cause lawsuit suffers from three fundamental defects: (1) the lack of plaintiffs with legally cognizable injuries, (2) the absence of defendants to whom the alleged injuries could be attributed, and (3) the inability of a federal court to redress the alleged injuries even if proper defendants were before it.

Continue reading “Common Cause’s Impossible Dream”

Did Reid Go Nuclear?

As you may have heard, Senate Majority Leader Reid invoked the “nuclear option” yesterday, thereby laying waste to the Senate and all its traditions. At least that it is how Alexander Bolton of The Hill describes Reid’s actions in response to a Republican motion to suspend the rules with respect to the China currency legislation pending before the Senate. Bolton explains that “Reid and 50 members of his caucus voted to change Senate rules unilaterally to prevent Republicans from forcing votes on uncomfortable amendments after the chamber has voted to move to final passage of the bill.”

David Waldman says that Bolton is “way overstating the case” when he uses the term “nuclear option” to describe Reid’s actions. Waldman seems to believe that the term only applies to an action that eliminates or greatly curtails the filibuster, which did not happen here. But Waldman acknowledges that Reid’s action bears “strong similarities” to the nuclear option and that “a very similar procedure can be used to reverse unfavorable rulings on anything, including the filibuster, and doing so on the subject of the filibuster was what people came to understand as the ‘nuclear option’ way back in 2005.” So his disagreement with Bolton is more semantic than substantive.

There is no formal definition of the “nuclear option” and little point in debating the semantics of the term. The real question is whether yesterday’s action by the Senate was part of the normal process of interpreting and applying its rules, or whether it represented a radical change in that process. In my view, the jury is still out on that question. Here’s why. Continue reading “Did Reid Go Nuclear?”

Constitutional Option Expiring?

The Hill reports that the Senate will adjourn the “magic” first legislative day tonight, thereby ending the opportunity to change Senate rules with a simple majority:

Under the so-called Constitutional option, on the first legislative day of a new Congress, senators can ask for a ruling from the presiding chair to amend the Senate rules and then can ratify such changes with a simple majority vote.

But senators who favor that procedural tactic for changing the rules acknowledge it’s only possible on the first legislative day of a new Congress.”

I suppose the rationale for this view would be that by adjourning without changing the rules, the Senate has adopted the old rules by implications.  But even assuming that there are senators who believe this (and Senator Merkley, at least, has stated that the rules can be changed by a majority at any time), the Senate could either continue to extend the legislative day or adopt a resolution preserving the opportunity to argue that the rules can be amended by a majority (as happened in 1975, when filibuster reformers wanted to guard against the implication that they had waived their rights).  The fact that these things are not being done indicates that a majority of the Senate is not in favor of invoking cloture by a simple majority vote.

Why Is Tomorrow Different From All Other Days?

In today’s Washington Post, Senator Tom Udall asserts that the Senate rules can be changed by a simple majority, notwithstanding Senate Rule XXII, which requires a two-thirds vote in order to bring debate to a close on a motion to amend the Senate rules.  According to Udall, “[o]n the first day of the new session, the rules can be changed under a simple, rather than two-thirds, majority.”

What is Udall’s basis for saying that the rules can be changed on the first day?  He doesn’t say.  But his colleague, Senator Jeff Merkley, attempted to explain this in an MSNBC interview last night.  Merkley says that “according to the Constitution, a majority can set up the Senate, they can do that at any time, but, according to precedent, it has been done at the start of a two year cycle.”  He later reiterates that a majority can, under the Constitution, amend the rules “at any time,” but that “by precedent, by tradition, which weighs heavily in the Senate,” it is supposed to be done at the beginning of a new Congress.

Unfortunately for Senator Merkley, there is no Senate precedent for amending the Senate rules by a simple majority at the beginning of a new Congress.  None at all.  Senate practice does not even support using the first day to consider amendments to the Senate rules.  This CRS report explains that “the Senate follows a well-established routine on the opening day of a new Congress” and describes in detail the activities, such as swearing in new members, which the Senate performs.  There is no mention of amending the Senate rules.

It is true that there is precedent for claiming that the Senate rules can be changed by a simple majority on the first day of a new Congress.  This claim is based on the theory, apparently originated by Senator Walsh in 1917, that the Senate’s rules expire at the end of a Congress and that it operates, at the beginning of a new Congress, under general parliamentary law.  This claim is contrary to unbroken Senate practice as well as the explicit provisions of Senate Rule V (which provides that the Senate rules “continue from one Congress to the next Congress”).  As discussed in my last post, accepting this claim would also have unsettling consequences for the legitimacy of the Senate itself.

For present purposes, however, what is significant is that there is no Senate precedent which accepts this claim.  To the contrary, as explained in a 2005 CRS report (written when Senate Republicans were threatening the “nuclear option” to eliminate filibusters of judicial nominations), the Senate has clearly rejected it on at least two occasions.  In 1957, Senator Anderson used this argument to support his motion to adopt a new package of rules on opening day.  The Senate voted to table his motion (despite a favorable ruling from Vice President Nixon).  Again, in 1967, Senator McGovern made the same argument, which Vice President Humphrey submitted to the Senate for a vote.     The Senate again voted to reject the argument, sustaining a point of order against McGovern’s motion.  As CRS notes, if the Senate were to adopt the claim that a simple majority can amend the rules at the beginning of a new Congress, it “would have to overturn these two precedents, perhaps among others.”

There is, therefore, no existing precedent supporting the Udall/Merkley theory.  But suppose the Senators are successful in convincing the Senate to establish a new precedent?  It would be utterly impossible to limit that precedent to the opening day of a new Congress.  The only possible justification for ignoring the explicit provisions of the Senate rules would be that the Constitution itself prohibits entrenching Senate rules in the manner set forth in those rules.  But, as Senator Merkley himself acknowledges, that  position means that the Senate rules can be amended by a simple majority “at any time.”  The first day of a Congress is no different in that regard than any other.

Even if the Senate were to declare that the rules can be amended (by simple majority)only on opening day, this new precedent would be worthless.  After all, if the Senate is going to disregard prior precedents and two hundred years of unbroken practice, it seems unlikely that any new precedent would constrain a majority from amending the Senate rules at any time.  As the 2005 CRS report suggests, it is difficult to see how the Senate could resist becoming like the House, “in which debate and deliberation can be terminated at the option of the majority,”  or to avoid “a chaotic environment in which a temporary majority could change precedents any time it wanted to.”

The Radical Implications of Rejecting the Senate’s Continuity

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.  

Is the Senate a Continuing Body?

The main page of the U.S. Senate website today explains to visitors “What Happens When a New Congress Begins?”  Presumably, this informative blurb, probably written by the Senate historian, is not intended to delve into controversial and bitterly divisive topics.  Yet the author asserts that “the Senate is a continuing body” which “does not have to reorganize itself each new Congress.”

These may appear to be simple statements of established principles (and indeed they are), but they are also hotly disputed by at least some Senators and academics.  The theory on which Senators Udall and Merkley, among others, will attempt to overturn the filibuster rule in the next Congress depends on the Senate not being a continuing body.  The argument for this position is laid out in Professor Aaron Bruhl’s “Burying the ‘Continuing Body’ Theory of the Senate.”  (More on which later.)

In the meantime, one wonders if the Senators read their own website.

The Filibuster and Its Discontents (Part II)

           In my last post I endeavored to show that the Constitution does not, and indeed cannot, prohibit congressional rules that allow minorities to block legislation.  The Constitution explicitly grants to each House the power to determine the rules of its proceeding, and the exercise of such power inevitably involves giving minorities the power to bottle up, delay, or outright veto proposed legislation. 

            Filibuster opponents, however, try to distinguish the filibuster from other congressional rules that enhance minority power.  Geoghegan hints at such a distinction when he suggests that the “old cloture rule” was more constitutionally acceptable because “if senators wanted to stop a vote, they had to bring in the cots and the coffee and read from Grandma’s recipe book for chicken soup until, unshaven, they keeled over from their own rhetorical exhaust.”  In other words, the old cloture rule was a delaying mechanism, but, Geoghegan claims, the current cloture rule is “in effect” an absolute veto on laws that lack supermajority support.    

            This turns out, however, to be a distinction without a difference.  The change in practice Geoghegan describes is not the result of any change in the cloture rule itself (the old cloture rule actually required a larger supermajority to end debate), but stems from extraneous factors.  The most important of these is the massive increase in the Senate’s workload, as well as other demands on the time of individual Senators.  As observed in Wawro and Schicker’s 2006 treatise, Filibuster, “filibustering has become costless for bill opponents for the simple reason that the opportunity costs of waiting out a filibuster have become overwhelming when senators are confronted with extraordinarily tight scheduling constraints.”   

            Simply put, the change deplored by Geoghegan and other filibuster opponents is the result of the fact that the Senate is no longer willing or able to tolerate the amount of time consumed by real filibusters.  It is difficult to see how that fact supports a constitutional challenge to the filibuster itself.  One might as well argue that it is “unconstitutional” for the Senate to take lengthy recesses because otherwise it would be able to pass more contested legislation. 

            To understand the issue better, lets take a simple hypothetical.  Suppose the Senate had a rule stating that any presidential nominee would be deemed rejected unless the confirmation vote were unanimous.  In other words, any single Senator would have an absolute veto with respect to nominations.  If one accepts the premise that the Constitution requires such decisions to be made by majority vote, then this absolute veto rule must be unconstitutional. 

            Now lets change the rule slightly.  Instead of giving each Senator an absolute veto, allow each Senator to place a hold on any nomination.  The effect of the hold is to require that the nomination be held in abeyance until an appointed day, immediately prior to adjournment sine die, on which contested nominations are to be debated.  The Senate will then take up such nominations beginning with those that have a single Senator objecting, proceeding to those to which two Senators object, and so on.  There is not enough time to consider all of the contested nominations, however, so those that have substantial opposition (say more than ten Senators) are never considered. 

            This hypothetical hold rule might be terrible policy, but how could it violate the Constitution?  True, the rule “in effect” allows small groups of Senators to veto nominations.  But nothing in the Constitution tells the Senate how long it must stay in session (other than requiring one meeting a year), what items of business it must take up while it is in session, or how to prioritize among different demands on its time.    So unless the Senate has a constitutional obligation to stay in session long enough to debate and vote on every nomination, the rule would seem to pass constitutional muster. 

            The analysis is the same for the filibuster.  Like the hypothetical hold rule, the filibuster does not change the vote required for final passage of the bill; it just makes it extremely time consuming to consider a bill that is opposed by more than 40 Senators.  Since it is neither required nor possible for the Senate to vote on all legislation, it must decide how to prioritize the time that it has.  The fact that the Senate is unwilling or unable to spend the time required for a real “Mr. Smith goes to Washington” filibuster is simply not a problem of constitutional dimension.

The Filibuster and Its Discontents (Part I)

           Now that the Massachusetts election is over, I would like to turn my attention to an opinion piece that appeared in the New York Times last week.  In that article, Thomas Geoghegan argues that the Senate filibuster violates the Constitution.  In brief, his argument is (1) as it currently operates, the filibuster requires a 60 vote supermajority to pass any contested bill; (2) the Constitution implicitly provides that a simple majority is sufficient to pass a bill; and (3) therefore the filibuster is unconstitutional. 

            This is an old argument, and it suffers from certain well-understood weaknesses.  First, the filibuster does not in fact require a supermajority to pass any bill.  Instead, it requires a supermajority to proceed to a final debate and vote on passage.  Second, it does not apply to “any contested bill” since the reconciliation process allows a significant category of budget-related bills to avoid the filibuster.  Third, as Catherine Fisk and Erwin Chemerinsky note in a 1997 law review article on the filibuster, the Constitution is silent on the filibuster and on the voting requirements for final passage of a bill.  Geoghegan argues that the presence of specific supermajority requirements in the Constitution (e.g., for ratifying treaties, overriding presidential vetoes and expelling members) means that all other actions must be taken by simple majority vote.  However, Fisk and Chemerisnky point out that “[i]t is equally consistent with the text to read it as requiring supermajority votes in at least these instances, but leaving it up to Congress in other situations to decide the required vote margin.” 

            There is also a more fundamental analytical problem with a constitutional attack on the filibuster.  It can be seen by asking how the Framers might have drafted a constitutional provision prohibiting supermajority rules such as the filibuster.  They could have provided, for example, that “every bill receiving the approval of a majority of either House shall be deemed passed by that House.”  But how would one determine which bills have the “approval” of a majority of the legislative body?  There are an infinite number of possible bills that could be presented to the body for approval, and there is no way that a legislature could vote on all of them.  And the fact that a legislative majority would be willing to vote for a particular bill does not mean that bill most closely reflects the majority’s preferences because the majority might prefer an alternative bill (or the alternative might be supported by an even larger majority). 

            Given these fundamental facts about the legislative process, there must of necessity be gate-keeping rules to determine which bills actually get presented to the legislative body for a final up or down vote.  Such rules exist in the “majoritarian” House of Representatives, as well as in the Senate.  A principal example is the committee system, which enables small minorities, or even a single committee chair, to block legislation that might be favored by a majority of the chamber.  Similarly, in the House the leadership has nearly total control over the legislative agenda, making it almost impossible for any legislation it opposes to reach the floor. 

Because there has to be a mechanism by which a legislative body sets its agenda and determines what bills will be considered for final passage, it is difficult to see how one would formulate a constitutional rule to prevent minorities from using this mechanism to block legislation that they oppose.  One could provide, in a formalistic manner, that supermajorities cannot be required in a vote on final passage of a bill, but this would not prohibit the filibuster, which does not apply to votes on final passage.  (Ironically, it would prohibit a House rule that requires a supermajority for passage of federal income tax increases—I will discuss the constitutional issues related to this rule in a later post).   

Of course, if one had a means of defining a particular legislative measure that must be considered, it would be possible to require that this measure receive a final up or down simple majority vote.  Thus, for example, the argument that the Constitution requires the President’s nominees to receive an up or down vote is at least intellectually defensible (although, IMHO, unpersuasive) because the President defines the measure through his nomination.  This still leaves undefined the time period within which the final vote must take place, but one could argue that the Constitution requires that the vote take place within a reasonable time of the nomination.  In the case of general legislation, however, there is no constitutional definition of measures that must be considered, nor a starting time for consideration, much less a time frame within which consideration must take place. 

The Constitution does provide that the President shall “recommend” to the Congress “Consideration [of] such Measures as he shall judge necessary and expedient,” but it doesn’t require that the Congress actually consider them.  That this is no oversight is suggested by the fact that the Framers elsewhere did direct Congress to consider certain measures.  When the President returns a vetoed bill to the House from which it originated, Article I provides that such House “shall  . . . proceed to reconsider it.”  Similarly, if two thirds of that House agree to pass the bill, it is to be sent to the other House, “by which it shall likewise be reconsidered.”  Interestingly, however, Congress has not interpreted this language to require an actual vote on overriding a veto, and, according to CRS, “[i]t is not unusual for Congress to make no effort to override a President’s veto if party leaders feel they do not have sufficient votes.” 

In short, there is simply no intellectually coherent way to require legislative bodies to consider or pass all legislation that may be favored by the majority.  Thus, the filibuster cannot be “unconstitutional” in the simple sense suggested by Geoghegan.  There are, however, other and more substantial arguments about the filibuster, to which I will turn in future posts.