[EL] Senate rules

[Tom@TomCares.com]

It wouldn't be the first time state population was given some consideration
among Senators, albeit less substantive.

https://www.periodicalpress.senate.gov/seniority/

"Senate rank is first determined by the length of consecutive service in
the Senate. For senators who entered the Senate on the same day, several
tie-breaking procedures determine seniority. In order of precedence, these
factors are: previous Senate service, service as the vice president,
previous House service; service in the Cabinet, service as a state
governor. *If a tie still exists, senators are ranked according to the
population of their state at the time of swearing in*."
(Emphasis added)

On Wed, Jan 27, 2021, 16:50 Mark Scarberry <mark.scarberry at pepperdine.edu>
wrote:

> 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
>
> ------------------------------
> *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
>
>
> ------------------------------
> *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
>
>    ** [ This email originated outside of Capital University ] **
>
>
> 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
>
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> Papers at http://ssrn.com/author=40126
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