[EL] Senate rules

Wed Jan 27 08:49:24 PST 2021

Among other considerations, the constitutional requirement that the “yeas and nays” be recorded is inconsistent with any notion that some senators are more equal than others with respect to final votes on bills. It’s hard to imagine that a recorded yeas-and-nays vote of 45 nays and 55 yeas would constitute rejection of a bill based on the population of the various states from which senators come. If I were a Senator, I would vote to expel members who participated in putting in place a purported rule weighting Senators’ votes on final passage (or confirmations) unequally; it would be a violation of their oaths, in my view. Operations of committees and of general procedure might be different as a practical (and perhaps in some cases a formal) matter. The majority leader might refuse, as a matter of his or her delegated discretion, to bring to the floor a bill or other action not supported by a majority of the party’s caucus. The Democrats in the House allowed the delegate from DC to vote in committee of the whole, though not on final passage; I don’t know whether that is still the rule.

Mark S. Scarberry
Professor of Law
Pepperdine University Caruso School of Law

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From: Law-election <law-election-bounces at department-lists.uci.edu> on behalf of Smith, Bradley <BSmith at law.capital.edu>
Sent: Wednesday, January 27, 2021 4:42:28 AM
To: Tom at TomCares.com <Tom at tomcares.com>; John Tanner <john.k.tanner at gmail.com>
Cc: Election Law <Law-election at department-lists.uci.edu>
Subject: Re: [EL] Senate rules

Article V isn't necesssary. Article I, Section 3 pretty well does in this scheme.

I don't see the suit as particularly difficult to maintain. It should be easy to find someone with a particularized injury from a duly passed law not be sent on to the President for signature. The Secretary of the Senate, as defendant, would have to raise the Senate rule as a defense. Plaintiffs would then argue the unconstitutionality of the Rule. While there would be some tendency to consider it a non-justiciable political question, we pretty much crossed that bridge decades ago (starting with Baker v. Carr, but much since) and it's inconceivable to me that such a rule could stand.

Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault Professor of Law
Capital University Law School
303 East Broad Street
Columbus, OH 43215
Phone: (614) 236-6317
Mobile:  (540) 287-8954

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From: Law-election <law-election-bounces at department-lists.uci.edu> on behalf of Tom at TomCares.com <Tom at tomcares.com>
Sent: Wednesday, January 27, 2021 12:55 AM
To: John Tanner <john.k.tanner at gmail.com>
Cc: Election Law <Law-election at department-lists.uci.edu>
Subject: Re: [EL] Senate rules

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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<mailto: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<mailto: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<mailto: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<mailto: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<mailto: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<mailto: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<mailto:steve.kolbert at gmail.com>
@Pronounce_the_T

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

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