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”

Breaking a Tie in the Senate

(Update- see this more recent post on the possibility of a court challenge to the Lieutenant Governor’s vote).

It appears the Virginia Senate, following Tuesday’s elections, will be equally divided, with Republicans holding 20 seats and Democrats holding 20 seats. The Democrats want a shared-power arrangement, meaning that committee chairmanships and other responsibilities would be divided equally between the two parties. This is apparently what was done on the one previous occasion, in the 1990s, where such a situation arose. Republicans, on the other hand, contend that they are entitled to control the chamber because the Republican Lieutenant Governor has the power to break ties.

One Democratic Senator, “Chap” Petersen, told the Washington Post that “the lieutenant governor is not a member of the Senate” and that, if Republicans seized power, Democrats could sue to stop it. Senator Petersen seems to be saying that the Lieutenant Governor lacks the constitutional power to break ties with regard to internal matters such as committee assignments and other rules.

The Virginia Constitution provides that “[t]he Lieutenant Governor shall be President of the Senate but shall have no vote except in case of an equal division.” This provision was apparently (my research on this is admittedly cursory) added as part of the Constitution of 1869. It closely parallels Article I, Section 3, clause 4 of the U.S. Constitution, which provides that “[t]he Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.”

Because of the similarity of the constitutional provisions, it is worth taking a look at how the U.S. Senate has dealt with similar issues.

On several occasions during the 19th Century, questions were raised as to whether the Vice President’s right to break ties extended beyond legislative matters. For example, in 1850 Vice President Millard Fillmore inquired of the Senate whether “he might vote in a case where there was a tie in the election of an officer of the Senate.” Senator (and former Vice President) John Calhoun responded that he had voted several times on executive nominations during his tenure as Vice President. “The opinion of the Senate seeming to be in favor of the power of the Vice-President to vote in the case before them, Mr. Fillmore cast his vote for one of the candidates.” Hinds Precedents § 5972.

In 1877 the issue arose again when the Senate was considering a question of whether to seat a Senator. The vote being equally divided, Vice President William Wheeler voted in the negative. Senator Thurman initially challenged the Vice President’s right to vote on the question, but, after a debate in which the Fillmore precedent was discussed, Thurman withdrew his challenge and Wheeler ruled that there was “no doubt of his right to vote in all cases in which the Senate is equally divided.” Id. § 5977.

Finally, in 1881 Vice President Chester Arthur cast the tie-breaking vote with regard to organizing the Senate at a time when the parties had equal voting strength. Although Senator Saulsbury expressed the opinion that the Vice President was not empowered to vote on such a question, the earlier precedent was again cited, and the Vice President proceeded to break the tie. Id. § 5975.

In the U.S. Senate, therefore, the precedent seems well-established that the Vice President’s tie-breaking vote extends to non-legislative votes, including matters relating to control and organization of the chamber.

Congressional Regulation of the Press Galleries

As described in this Hill article by Alexander Bolton, Vice President Biden’s office has filed a complaint with the Senate Press Gallery regarding the tactics used by a credentialed reporter who used the pretense of posing for a photograph with the Vice President to get close enough to ask him a question. In case you were wondering what authority the Press Gallery has, and where it comes from, here is a brief summary.

Continue reading “Congressional Regulation of the Press Galleries”

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?”

Supercommittee Rules Not So Clear

The Supercommittee rules are out, but they leave some unanswered questions. To begin with, the rules provide that “[t]he rules of the Senate and the House of Representatives, to the extent that they are applicable to committees, including rule XXXVI of the Standing Rules of the Senate and clause 2 of rule XI of the Rules of the House of Representatives for the 112th Congress, and do not conflict with the applicable provisions of the Budget Control Act, shall govern the proceedings of the Joint Select Committee.” That’s great, but what happens if there are differences between the House and Senate rules?

For example, clause 2 of House Rule XI requires each committee meeting and hearing be opened to the public unless the committee determines by record vote, with a majority being present, that one of certain specified grounds for closure are present, including that disclosure of evidence or matters to considered “would endanger national security, would compromise sensitive law enforcement information, [or] would tend to defame, degrade or incriminate any person.”

The grounds for closing a Senate committee meeting or hearing under paragraph 5(b) of Senate Rule XXVI are similar, but not identical. Any of the grounds identified in the House Rules would probably also justify closing a Senate meeting or hearing, but the Senate identifies additional grounds, such as the need to protect certain confidential financial or commercial information, that would not justify closure under the House Rules. (Admittedly, these particular differences are not likely to be important, but one wonders whether the same could be said of all the differences between House and Senate rules).

More importantly, Supercommittee Rule V(2) states that “[e]ach hearing and meeting of the Joint Select Committee shall be open to the public and the media unless the Joint Select Committee, in open session and a quorum being present, determines by majority vote that such hearing or meeting shall be held in closed session.” This provision does not specify any grounds for closing a meeting or hearing. There was apparently some discussion at the Supercommittee meeting today that there could be closed-door discussions of “important issues,” although it is not clear whether this referred to formally closed meetings or merely to informal discussions among members.

To the extent that Rule V(2) might be interpreted to allow closing of hearings or meetings to facilitate delicate negotiations, this is a problem. Neither the House nor Senate rules permit closing of hearings or meetings for reasons of deliberative privacy. I would conclude, as does John Wonderlich, that Rule V(2) should not be read to permit closure for reasons forbidden by both the House and Senate rules (particularly since the Supercommittee Rules do not provide any rule of interpretation in the event of a conflict between its additional provisions and those of the House and Senate rules that it incorporates). However, it seems entirely possible that some members of the Supercommittee believe that they can close hearings and meetings for any reason, the House and Senate rules notwithstanding.

 

The Supercommittee, Moral Entrenchment, and the Puzzle of Statutized Rules

The Budget Control Act of 2011 (“BCA”) establishes a number of expedited procedures to govern House and Senate consideration of the legislative proposal from the “Supercommittee.” In essence, it requires that both the House and Senate have an up-or-down vote on the bill as proposed, and it forbids amendment of the bill in either house.

These provisions, of course, amend the normal rules of procedure that apply in the House and Senate.  The BCA expressly recognizes this and provides that these procedures are enacted “as an exercise of the rulemaking power of the House of Representatives and the Senate, respectively, and as such they shall be considered as part of the rules of each House, respectively, or of that House to which they specifically apply, and such rules shall supersede other rules only to the extent that they are inconsistent therewith.”

It is not unusual for Congress to enact in statute special rules to expedite the consideration of particular legislation (examples include “fast track” approval for trade agreements and the closing of military bases under the Base Realignment and Closure Act). Such “statutized rules” raise some thorny constitutional questions, however. See Aaron-Andrew P. Bruhl, Using Statutes to Set Legislative Rules: Entrenchment, Separation of Powers, and the Rules of Proceedings Clause, 19 J.L.& Po. 345 (2003).

For example, are the House and Senate legally bound to follow the rules prescribed in the BCA? The generally accepted answer to this is no. Because the Constitution grants each house the power to determine its own rules, a statute cannot remove this power, and thus each house must remain free to change its rules independently. Indeed, the BCA expressly states that its congressional procedural provisions are enacted “with full recognition of the constitutional right of either House to change such rules (so far as relating to such House) at any time, in the same manner, and to the same extent as in the case of any other rule of such House.”

If that is so, then either the House or Senate is legally free, notwithstanding the procedures specified in the BCA, to supersede those procedures with respect to consideration in its own body. As Professor Bruhl notes, this may not mean so much in the Senate, where it can be extremely difficult to change the rules. In the House, however, changing the rules is quite easy. It is typical in the House that legislation sent to the floor is accompanied by a special rule from the Rules Committee that sets the terms of the debate and consideration for that particular bill. This special rule can vary or waive any of the provisions of the Standing Rules of the House.

For example, this CRS report discusses the use of expedited rules in military base closings, and notes some instances where the House waived the requirements of those rules. The report states: “As House Parliamentarian Emeritus Charles W. Johnson observes, a chamber may ‘change or waive the rules governing its proceedings. This is so even with respect to rules enacted by statute.’ These changes can be accomplished, for example, by the adoption of a special rule from the House Committee on Rules, by suspension of the rules, or by unanimous consent agreement.”

I am informed by a congressional source that it is unlikely the Rules Committee would promulgate a special rule to accompany the Supercommittee’s proposed bill. The reason, however, is not lack of constitutional power to do so; rather it is the fear that the adoption of a special rule, if it contravened any of the procedures established in the BCA, could jeopardize the bill’s “privileged status” in the Senate. In other words, the BCA forms something like a contract between the House and Senate, and one party’s breach of the requirements would arguably free the other from complying with its terms.

Nevertheless, there would appear to be no legal barrier to the House changing the procedures set forth in the BCA if a simple majority so desires (the situation is more complicated in the Senate due to the ability of a minority to filibuster a motion to amend the rules). In what sense, then, can the BCA be said to have entrenched the rules governing consideration of the Super-committee’s legislation? As Bruhl observes, “statutized rules can be understood as devices for preventing Congress from engaging in certain types of procedural opportunism [yet because] Congress believes that the Constitution limits its ability to constrain itself in matters of procedure [, they are] a curiously noncommittal form of commitment.”

Another way of describing the effect of statutized rules is that they are “morally entrenched.” That is, they reflect a promise by the House and Senate to follow certain rules, and not to utilize such constitutional power as they have to alter or amend such rules. But if should they break their promise (which has happened from time to time with regard to other statutized rules), there is (probably) no legal violation and (certainly) no legal remedy.

To make things just a little more complicated, it should be noted that BCA differs from the typical statutized rule situation in a couple of ways. First, because of the short duration of the Supercommittee, the provisions of the BCA only affect the Congress that enacted it. This is important because there is precedent in the House for the proposition that a statutized rule can constitutionally bind the Congress that enacted it. Bruhl thinks, and I agree, that this precedent is probably wrong, but it could be used to argue that the 112th Congress is in fact without constitutional power to modify the rules set forth in the BCA (absent a statutory amendment). The savings provision quoted earlier might defeat such an argument anyway, but the provision arguably does nothing more than reflect a particular understanding of the constitutional powers of the House and Senate, which understanding might turn out to be incorrect.

Second, the BCA does more than merely prescribe a particular procedure for considering certain legislation. It imposes a consequence (automatic spending cuts in excess of one trillion dollars) for the failure to enact the legislation proposed by the Supercommittee. If Congress passes such legislation in accordance with the requirements of the BCA, then any constitutional questions regarding the procedure would not affect the validity of the final product. Moreover, even if Congress enacts a law that varies substantively from the requirements of the BCA, or in a manner that violates the BCA’s procedural prescriptions, it is likely that this law will be written in such a way as to ensure that BCA’s automatic spending cuts are overridden.

But what happens if Congress cannot agree on any legislation and the automatic spending cuts go into effect? At that point could not there be a constitutional challenge to the procedures established in the BCA? It could be argued that the BCA unconstitutionally attempts to prescribe procedures for the House and Senate, violating the constitutional mandate that each house determine the rules of its own proceedings.

Bruhl argues, reasonably enough, that statutized rules do not violate the Constitution so long as each house remains free to change those rules without interference from the other house or the President. But one could ask whether each house is free to depart from the procedures specified by BCA, for example by amending the Supercommittee’s proposed bill, when the consequence of doing so would be the automatic spending cuts triggered by non-compliance with BCA. In essence, by providing a draconian “penalty” for changing the procedures established in the statute, the BCA imposes an unconstitutional condition on the exercise of the rulemaking power.

One final piece of this puzzle. Section 401(b)(3)(B) of the BCA provides that “[a]ny change to the Rules of the House of Representatives or the Standing Rules of the Senate included in the report or legislative language shall be merely advisory.” This means, apparently, that even if the Super-committee proposes legislative language that effects a permanent change in House or Senate rules, and the Congress passes a bill that purports to enact those changes, the changes are not in fact effective. The Super-committee could not, for example, force Congress to enact a rule that makes the Super-committee permanent, or requires Congress to use expedited procedures for future legislation.

This seems to be the legislative equivalent of the genie saying that you get three wishes, but “ixnay on the wishing for more wishes.” See Aladdin (1992). It seems to reflect some discomfort with the enormous power that the BCA invests in the Supercommittee. As a constitutional matter, it seems to put the BCA in the awkward position of both entrenching certain rules and prohibiting future legislation from entrenching additional rules.

Hopefully I will get some feedback on these thoughts, and refine them as we go along.