[EL] Senate rules

[Steve Kolbert]

Jim, I imagine any judicial challenge to your proposals would fail for lack
of justiciability.  The federal court in D.C. recently held that the Speech
or Debate Clause bars challenges to a congressional chamber's parliamentary
rules--even challenges brought by members of that chamber.  *McCarthy v.
Pelosi*, ___ F. Supp. 3d ___, No. 20-1395, 2020 WL 4530611, at *8 (D.D.C.
Aug. 6, 2020), *appeal docketed*, No. 20-5240 (D.C. Cir. oral argument held
Nov. 2, 2020).

Beyond the Speech or Debate Clause, it's not clear that there exists an
appropriate defendant for a suit challenging your proposed reforms.  A suit
challenging Senate rules must be brought against the Senate itself and
cannot be brought against an officer like the Vice President (*i.e.*,
President of the Senate), the parliamentarian, the Sergeant-at-Arms or the
Secretary of the Senate.  *Common Cause v. Biden*, 748 F.3d 1280, 1285
(D.C. Cir. 2014).  A suit against the Senate itself (rather than its
officers or members) would be barred by sovereign immunity.  *Rockefeller
v. Bingaman*, 234 F. App'x 852, 855-56 (10th Cir. 2007).  A suit against
individuals Senators (or all 100 of them) would face a Speech or Debate
Clause challenge.  *Fields v. Office of Eddie Bernice Johnson*, 459 F.3d 1,
13 (D.C. Cir. 2006).

And regardless of the named defendant(s), a judicial challenge to Senate
rules seems likely to constitute a non-justiciable political question.  *Common
Cause v. Biden*, 909 F. Supp. 2d 9, 27-31 (D.D.C. 2012), *aff'd on other
grounds*, 748 F.3d 1280 (D.C. Cir. 2014).  Is there any more "textually
demonstrable commitment to a coordinate branch" in the entire Constitution
than the Rules of Proceedings Clause?

Steve Kolbert
(202) 422-2588
steve.kolbert at gmail.com
@Pronounce_the_T

On Mon, Jan 25, 2021 at 11:55 AM Gardner, Jim <jgard at buffalo.edu> wrote:

> Sorry if this has been discussed before, but is there any reason why the
> Senate couldn’t adopt a cloture rule ending a filibuster upon the vote of
> any number of senators representing, say, a minimum of 40% of the U.S.
> population?  For that matter, is there a reason the Senate couldn’t adopt a
> rule providing that no legislation will be deemed approved except upon the
> vote of a number of senators representing more than 50% of the population?
>
>
>
> Jim
>
>
>
> ___________________________
>
> James A. Gardner
>
> Bridget and Thomas Black SUNY Distinguished Professor of Law
>
> Research Professor of Political Science
>
> University at Buffalo School of Law
>
> The State University of New York
>
> Room 514, O'Brian Hall
>
> Buffalo, NY 14260-1100
>
> voice: 716-645-3607
>
> fax: 716-645-2064
>
> e-mail: jgard at buffalo.edu
>
> www.law.buffalo.edu
>
> Papers at http://ssrn.com/author=40126
>
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