[EL] Senate rules

[Steve Kolbert]

John, looking at Jim's proposals, I don't think either reform authorizes
passage of laws with fewer votes in favor rather than against.
- The first would allow the Senate to *end a filibuster* with fewer
Senators voting aye than nay, but it would not purport to authorize
*passage of a bill* with fewer senators voting in favor than against. On
final passage, the "aye" votes would still be required to be greater than
the "no" votes, state population notwithstanding.
- The second proposal merely *adds* an additional requirement--I'll call it
a "population majority" requirement--on top of the normal, what I'll call
"numerical majority" requirement. The proposal would not *replace* the
numerical majority requirement. So under Jim's proposal, a bill would fail
if it received a population majority in support but lacked a numerical
majority in support.

In other words, I don't think either of Jim's proposals could result in a
law with fewer than a numerical majority of senators in support. Court
challenges would have to target the Senate's rules, which (as I mentioned
earlier) seem to be an uphill climb (at best).

As for Article V, I don't take Jim's proposals to be amendments to the
Constitution, but merely changes to Senate rules. Although I suppose they
could be proposed as constitutional amendments, in which case certainly
Article V would play some role.

Steve

On Tue, Jan 26, 2021 at 10:17 AM John Tanner <john.k.tanner at gmail.com>
wrote:

> 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
>>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> https://department-lists.uci.edu/mailman/listinfo/law-election
>
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20210126/371db5fe/attachment.html>