[EL] Senate rules

[Steve Kolbert]

John,

I should have been clearer about Article V.  (Apologies!)  What I should
have written is that I don't see how Article V changes *the justiciability
analysis*.  If (as current caselaw holds) some combination of sovereign
immunity, the political question doctrine, the Speech or Debate Clause
(etc.) would operate to bar a lawsuit against the Senate's internal
operating rules, it's not immediately apparent to me that Article V turns
the otherwise non-justiciable case into a justiciable one.

But if we reach the merits, I *do *see the argument that Jim's proposals
could violate the Equal Suffrage Clause of Article V if the Clause applied
beyond the context of constitutional amendments.  My initial inclination is
to disagree--a handful of textual, structural, and historical reasons
suggest to me that the Equal Suffrage Clause applies only to constitutional
amendments, though I confess that I haven't looked deeply into the question.

Steve

On Tue, Jan 26, 2021 at 3:46 PM John Tanner <john.k.tanner at gmail.com> wrote:

> Well it certainly give some senators authority that others lack.  Ted Cruz
> and John Cornyn would have power that Bernie Sanders and Patrick Leahy
> lack, and thereby deprive VT of its equal suffrage.
>
> Sent from my iPhone
>
> On Jan 26, 2021, at 11:04 AM, Steve Kolbert <steve.kolbert at gmail.com>
> wrote:
>
> 
> 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
>>>
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>>
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