[EL] Senate rules

[John Tanner]

Steve,  the challenge would be to any law enacted with fewer votes for rather than against.   
Oh, and Article V applies as well as Article I section 3. 
John

Sent from my iPhone

> On Jan 26, 2021, at 2:47 AM, Steve Kolbert <steve.kolbert at gmail.com> wrote:
> 
> 
> 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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