Did the Senate Flub its Cinderella Moment?

On January 24, 2013, the Senate adopted certain rules changes that, according to published reports, will modestly restrict the use of the filibuster, but will not fundamentally alter the minority’s ability to block cloture on matters covered by Rule XXII. It accomplished these changes by adopting S. Res. 15, which provided a new standing order, and S. Res. 16, which amended the standing rules of the Senate. In addition, the Senate voted down S. Res. 5, offered by Senator Harkin, which would have made more extensive changes to the filibuster.

Professor Akhil Amar is very upset by these developments. According to Amar, “nothing has prevented the Democrats, legally speaking, from exercising their constitutional right (nicknamed the ‘nuclear option’) to insist, by a simple majority vote, that simple majorities should rule in the Senate.”

This strikes me as an oversimplification of Amar’s own position. As suggested in my last post, Amar’s position has not been that the Senate majority is entitled to insist on majority cloture as a pure act of will (or, as Professor Chafetz puts it, by the “application of brute force”). Rather he has argued that each senator has the “right and duty” to “adjudicate” whether “Rule 22 has in fact come to operate as an improper rule of decision rather than a proper rule of debate.”

The Senate may not have framed the legal issues in exactly the same way, but its debate over amending the rules certainly encompassed the questions of whether Rule XXII had been improperly used to block, rather than to facilitate, debate and whether the rules changes would better enable it to fulfill its intended purpose in the future. Professor Amar may not agree with how the Senate resolved these issues, but at least he should acknowledge that it grappled with them.

If Amar has a legitimate gripe, “legally speaking,” it is not with those who opposed the use of the “nuclear option.” Rather it is with the legal argument made by those who advocated the use of this option (which they prefer to call the “constitutional option”).

Senator Harkin, for example, asserted that “[e]ach new Congress—each time the Senate convenes after a new Congress forms—can by majority vote change its own rules.” (S254) This he contrasted with “attempting to change the rules in the middle of a Congress,” which he views as improper. See id. (“I mean, you can’t go changing rules every other week”); see also id. at S267 (Senator Udall) (“I don’t think that looking at our rules and amending them by a majority vote at the beginning of a Congress is dangerous”).

To bolster his legal position, Senator Harkin quoted from the December 12 letter (which, he took pains to note, was signed by “very prominent Republicans” Charles Fried and Michael McConnell). The December 12 letter endorses the distinction between changing the rules at the beginning of a new Congress and changing them at any other time, and Senator Harkin accurately quotes the letter in support of this proposition.

However, as we have seen, there is little constitutional merit in this proposition. Professor Amar agrees (though not for exactly the right reason). Two years ago he mocked the idea that “the Senate like Cinderella [has] the power to transform itself in only one limited moment, at the opening of a new Congress.” Amar found ridiculous the idea that there is something “magical” about “Day One” of a new Congress (a day which, he aptly noted, could be indefinitely extended by the Majority Leader in a “separate piece of magic”).

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Professor Chafetz and the “Constitutionally Conscientious Senator”

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.

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Entrenchment Reconsidered (Part II)

This brings us to the second pillar of the anti-entrenchment position, which might be called the “quasi-constitutive” argument. Professors McGinnis and Rappaport, who pioneered this argument, explain:

If a legislature could pass a measure that would prevent a successor from taking action, then that measure would function as a constitutional restraint on the future legislature. For example, if the Senate passed a rule prohibiting tax increases, that would function exactly as if it were a constitutional prohibition on tax increases. . . . Because the Constitution permits amendments only under the procedures in Article V and not simply through legislative enactments, the legislature does not have the power to bind itself in the future.

J. McGinnis & M. Rappaport, The Constitutionality of Legislative Supermajority Requirements: A Defense, 105 Yale L. J. 483, 505-06 (1995).

The McGinnis/Rappaport argument can be somewhat hard to understand because, as the title of their article indicates, they defend the authority of a legislative body to adopt rules that prevent a simple majority from exercising legislative power that it would otherwise have under the Constitution. This is acceptable, they maintain, so long as the majority retains the ultimate power to amend or waive the rules.

So, if I understand their argument correctly, it actually would be permissible for the Senate to adopt a rule prohibiting any tax increases, notwithstanding the language quoted above. The constitutional infirmity would exist if the Senate prohibited repeal of this rule (or required a supermajority to repeal it). So long as the majority has the ability to waive or amend the rule, however, McGinnis and Rappaport see no constitutional violation.

Still, it is an open question what this actually means. For example, suppose a measure to raise taxes is introduced in the Senate and a point of order is raised that the measure violates the (hypothetical) Senate rule. According to McGinnis and Rappaport, the point of order could not be overcome by the argument that the rule is unconstitutional. But it seems that supporters of the measure could argue that (1) they are entitled to a vote on whether or not to waive the rule and (2) in the absence of such a vote, the rule is unconstitutionally entrenched. If this is true, it is not clear why McGinnis and Rappaport would so vigorously defend the constitutionality of supermajority rules because it would seem that such rules would be largely meaningless.

Fortunately, McGinnis and Rappaport appear to recognize this problem in their 1995 article. They explicitly distinguish rules that prohibit a majority from changing or waiving an existing rule, on the one hand, and rules that prevent the majority from obtaining a final vote on changing or waiving the rule, on the other. The Senate rule allowing filibusters of proposed rule changes, they make clear, falls into the latter category:

If the Senate voted on whether to change the cloture rule, only a simple majority would be needed to change it. It is true that an attempt to change the cloture rule might be filibustered, but that is another matter. The historical and structural argument presented above does not demonstrate that a majority must at all times be able to obtain a vote on all measures that it desires.

105 Yale L. J. at 507 (emphasis added).

Continue reading “Entrenchment Reconsidered (Part II)”

Entrenchment Reconsidered (Part I)

The anti-entrenchment critique of Senate rules rests on two pillars. The first, which I will consider here, is an analogy to a line of cases holding that a later statute trumps an earlier one, even if the earlier statute purported to be entrenched against repeal. Thus, for example, a statute which establishes a particular location as a “permanent capital” would not prevent the legislature from later moving the capital. See Ohio Life Ins. & Trust Co. v. Debolt, 57 U.S. 416 (1853). As the Supreme Court explained (in language quoted by the December 12 letter): “[N]o one legislature can, by its own act, disarm their successors of any of the powers or rights of sovereignty confided by the people to the legislative body.” Id. at 421. The argument is that a legislative rule which prevents a simple majority from acting similarly disarms the legislative body of “the powers or rights of sovereignty.”

At the outset it should be noted that the line of cases in question is entirely related to statutes; there is no case suggesting, even in dicta, this principle applies to legislative rules. To the extent that the courts have spoken about entrenchment of legislative rules, it is to affirm that the matter is one for legislative, not judicial, cognizance. Thus, in dismissing the Common Cause lawsuit (which challenged both the filibuster and its entrenchment), Judge Sullivan noted the absence of “any [constitutional] language that expressly limits the Senate’s power to determine its rules, including when and how debate is brought to a close. . . . Plaintiffs have not demonstrated that the Presentment Clause, the Quorum Clause, or any other constitutional provision explicitly requires that a simple majority is all that is required to close debate and enact legislation.”

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Entrenchment and the Academic “Consensus”

The December 12 letter claims “the overwhelming consensus of the academic community [is] that no pre-existing internal procedural rule can limit the authority of each new Senate to determine by majority vote its own rules of procedure.” Although this statement is closer to being true than the letter’s assertions about Senate continuity and precedent, it is still exaggerated and inaccurate in important respects.

First, while it is true that a number of scholars have expressed general agreement with the anti-entrenchment critique of the Senate rules, I think it is a bit of a stretch to call this an “overwhelming consensus.” It depends in part what one means by the “academic community.” Among those who have rejected the anti-entrenchment position are the current head of the Office of Legal Counsel, Virginia Seitz, former Senate Parliamentarian Robert Dove, and noted congressional legal scholar Michael Gerhardt. In addition, two legal scholars, Adrian Vermuele and Eric Posner, have argued against the anti-entrenchment position even as applied to statutes (they seem to assume that Senate rules are validly entrenched, although this is not the main focus of their argument).

Second, there are important differences among those who accept the anti-entrenchment critique. These differences may be critical to how the Senate should address attempts to change the rules with the support of a simple majority. As we have seen with respect to Professor Chereminsky, sometimes even a particular scholar does not seem to have reached an “overwhelming consensus” in his own mind as to how the Senate should proceed.

Third, the December 12 is flatly wrong in asserting that scholars have endorsed some special authority of a “new Senate” to change the rules. As far as I know, the only scholarship to support this position is the 1997 article by Professors Chereminsky and Fisk. As I will show in my next post, their contention in this regard appears to rest on a misunderstanding of their own argument.

Senate Rules from the Internal Point of View

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.

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Professor Chemerinsky and Senate Precedent on Changing the Rules

Now let us turn to the other law review article cited by the December 12 letter, Catherine Fisk & Erwin Chemerinsky’s “The Filibuster,” 49 Stan. L. Rev. 181 (1997). Since only Professor Chemerinsky signed the December 12 letter, I will refer just to him, no slight to Professor Fisk intended.

The 1997 article is cited in connection with the December 12 letter’s interpretation of Senate precedent, specifically in a section entitled “Senate Precedent and Tradition Support Rule Change By Majority Vote on the First Day.” The letter contends that “the Senate has consistently recognized its authority to change its procedural rules by a majority vote on the first day of a new Congress” and that there are “numerous precedents confirming a new Senate’s authority to change its rules by majority vote.”

Although the 1997 article contends that the Senate rules are unconstitutionally entrenched, it makes no claim this view has been accepted by the Senate itself. To the contrary, Chemerinsky states that “[t]he repeated failure of efforts to adopt majority cloture or to permit a majority to change Rule XXII suggests that it is unlikely the Senate will decide on its own that the filibuster is unconstitutional.” 49 Stan. L. Rev. at 225. He argues, however, that a judicial action could effectively vindicate the Senate majority’s constitutional rights. Id. at 225-38. (IMHO, the view that a court would hear the merits of such a case was far-fetched even at the time the article was written, though it became more so after the Supreme Court’s decision in Raines v. Byrd, 521 U.S. 811 (1997)).

The 1997 article concludes:

Senate Rule XXII is unconstitutional in requiring a two-thirds vote in order to change the Senate’s rules. Declaring this rule unconstitutional would mean that a majority of the Senate could abolish or reform the filibuster. Ideally, the Senate would recognize this violation and revise its own rules to eliminate the requirement for a supermajority. It is unlikely, however, that the Senate would make such a change; if nothing else, the change is likely to be filibustered by the minority party in the Senate.

49 Stan. L. Rev. at 253. The last sentence is a bit puzzling—the only way the “minority party” can filibuster a rules change is if there is a valid rule allowing it to so. The problem, from Chemerinsky’s perspective, is not that the minority party will exercise its rights under Rule XXII; rather, it is that the Senate does not “recognize [the] violation” that allegedly makes the rule invalid.

What, though, of the “numerous precedents” claimed by the December 12 letter that confirm “a new Senate’s authority to change its rules by majority vote”? Clearly Chemerinsky did not believe in 1997 that these precedents stood for the proposition claimed by the December 12 letter, and a quick review will show why.

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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.”

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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.

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