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.