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Wednesday, February 03, 2010

The legal debate over the Senate's rules: a dialogue

There has been a lot of discussion lately about reforming the Senate's rules.  This isn't especially surprising.  The same party controls the presidency and has majorities in both houses of Congress, and the Senate minority has been using the veto powers it enjoys under the Senate rules to block some of the governing party's initiatives.  We had a similar partisan configuration during some years of the Bush administration, and there were similar proposals for reform back then (recall Sen. Frist's "nuclear option" for judicial confirmations).

Many of the questions surrounding Senate reform do not really involve law but instead primarily implicate matters of policy, prudence, and political morality.  But some part of the debate does present itself as law.  That is the part in which I'm interested.  Regarding that part, the argumentative moves go something like this:

Q:  Why can a Senate minority filibuster?

A:  Because the Senate rules permit it.  The rules provide that ending debate (i.e., invoking cloture) on a bill or nomination requires sixty votes, not just a majority.  So a minority can effectively block action.

Q:  Why can't the Senate majority, if it wishes, change the cloture rule, so that debate is easier to cut off?  The rules can be changed by a majority, correct?

A:  It is true that an actual vote to amend the Senate rules requires only a majority to succeed.  But getting a vote held is difficult, because the attempt to change the rules can itself be filibustered.  Under current Senate rules, ending debate on a motion to change the rules requires the assent of two thirds of those present and voting.

Q:  I see.  The existing rules are hard to change, so long as they are in force.  What about when the Senate has to adopt new rules at the beginning of the next two-year Congress, i.e. in January 2011?  Couldn't it adopt more majoritarian rules then (if it wanted to)?

A:  But the Senate, unlike the House of Representatives, does not adopt new rules at the beginning of each Congress.

Q:  Why not?

A:  Because Rule V of the Senate rules provides that the rules "shall continue from one Congress to the next unless they are changed as provided in these rules."  Remember, that means debate can be closed only if a supermajority agrees.

Q [becoming exasperated]:  But that is sheer bootstrapping.  The Senate's rules cannot be the source of their own authority.  If Rule V lacks force in the new Congress, then it cannot purport to make itself and the other rules carry over.  And Rule V does lack force in the new Congress, for one Senate cannot purport to bind future Senates.  Entrenchment is not allowed.  The House of Representatives certainly recognizes that it cannot bind its successors to follow the rules of a previous House.

A:  Ah, now we've come to the heart of the matter.  There are not "past Senates" and "future Senates."  There is just one Senate running in an unbroken thread for over two hundred years.  The Senate can continue its rules indefinitely because it, unlike the House, is a continuing body.  Only a third of its members stand for election every two years; two thirds carry over from one Congress to the next.  The House expires every two years, but the Senate does not.  It is a continuing body with continuing rules.

*  *  *

This continuing body notion is probably regarded as the most powerful constitutional consideration in favor of the permissibility of entrenched Senate rules.  Its striking feature is the way it uses a seemingly bland structural fact about the Senate - that only a third of the body is up for election each term - to generate the powerful conclusion that the Senate's rules can violate what are often regarded as foundational principles of majority rule and non-entrenchment.

For quite a long time I've been puzzled by this continuing body idea.  If you are as fascinated by this sort of thing as I am, perhaps you might enjoy reading more about it in this paper.  For those who like your law review articles without suspense, the conclusion is that I don't think this continuing body theory makes much sense.  Of course, that doesn't tell us whether we should reform the Senate's rules; my argument just establishes, if it succeeds, that this particular justification for the status quo is faulty.

Posted by Aaron Bruhl on February 3, 2010 at 10:13 AM in Constitutional thoughts, Current Affairs, Law and Politics | Permalink


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Agreed. Call the bluff.

Posted by: anon | Feb 9, 2010 8:30:38 AM

my question is why don't the Dems go ahead and bait the R's into an actual filibuster? Perhaps not on health care, but on an initiative where the D's feel confident that the public will back them? i.e., force the R's to look even more like obstructionists - why cave in to the *threat* of a filibuster? Could the R's really filibuster over and over again on things like judicial nominees (esp of relatively centrist judges) and other policy initiatives?

Posted by: charles | Feb 7, 2010 8:43:44 PM

The main constitutional text based counterargument to entrenchment is that the Senate is the sole judge of disputes arising under its own rules. Few issues are more expressly established by the constitution as non-justiciable political questions. If the presiding officer of the Senate rules that a majority may change the filibuster rule and a majority of the Senate backs that Presiding Officer, I don't believe that judiciary has the power to second guess that determination.

The scenario in which the approach or some close variant is taken is colloquially called the "nuclear option" and I haven't heard any very impressive arguments that the nuclear option wouldn't work.

From a political science perspective, the willingness of Senators to uphold rules rather than invoking the nuclear option has a fair amount to do with the very lack of justiciability. Senators put in the position of being the final word on interpretation of the law, rather than having the courts to second guess them, feel more of an obligation to comply with it rather than to twist it.

Posted by: ohwilleke | Feb 3, 2010 3:16:31 PM

In the 1950s and 1960s there were a sequence of efforts to change the rules of the Senate on the first day of a new Congress by combining a ruling from the chair (the VP) with a simple majority confirming the ruling on appeal. However, enough Senators supported tradition that this attempt did not receive even the required simple majority support. The effort was abandoned in the '70s.

Posted by: Howard Gilbert | Feb 3, 2010 12:42:13 PM

In response to "not a political scientist":

You might well be right. Senators in the majority have reason to like the filibuster because of the risk they will soon be in the minority. And all senators have reason to like it to the extent it increases their individual power. Against this is balanced the fact that it hurts their ability to accomplish their party's agenda when they are in the majority. The balance of the competing forces determines whether there is an incentive to keep the filibuster in place.

For this reason, I try to couch things in terms of "if the Senate majority wanted to change things . . ." In the paper I do not really address the circumstances under which there would be an incentive to do so. (Or whether it would be a good thing for the country to do so.) I think the virtue of focusing just on the more narrowly legal issues is that it can help us see that this really is a choice that the Senate is making, and they should be responsible for their choices one way or another rather than hiding behind metaphysical dogma like "continuing body."

Posted by: Aaron Bruhl | Feb 3, 2010 11:37:02 AM

I hear so much discussion, from the left, on this issue. i used to hear so much discussion from the right on the issue. it's one of those topics where people go 'round and 'round like a dog chasing its tail and where people say one thing and six years later say the exact opposite.

isn't it true that the real impediment to changing the filibuster rule is that a broad swath of republicans and democrats in the senate view the current rule as protecting their relevance in times when their party is in the minority and as preventing the dreaded spectacle of suffering through a six year period of their lives where they might have very little power at all? in other words, isn't the reason we aren't seeing the elimination of filibusters not because Dems are spineless or stupid (and, earlier, not because Republicans were spineless or stupid), but rather because, in the big picture, all of the minority party and most of the majority party much prefer the rule the way it is?

Posted by: not a political scientist | Feb 3, 2010 11:23:29 AM

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