[EL] Senate rules

[Tom@TomCares.com]

If the rule was written to sunset every 2 years, then every new senate
would have to re-pass it in a process that ultimately preserved their equal
suffrage.

On Wed, Jan 27, 2021, 03:36 John Tanner <john.k.tanner at gmail.com> wrote:

> I don’t disagree as to operations strictly within Congress.   I think it
> becomes justiciable as soon as it reaches or fails to reach the outside
> world.
> Of course, the smaller states would block any such rule as a practical
> matter.
>
> Sent from my iPhone
>
> On Jan 26, 2021, at 8:15 PM, Steve Kolbert <steve.kolbert at gmail.com>
> wrote:
>
> 
> 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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