[EL] Senate rules

[Steve Kolbert]

Thanks to those who have contributed to this discussion, including folks
who have e-mailed me off-list.  I've read some great points!

A few folks have suggested that Article V's Equal Suffrage Clause might
operate to bar one or both of Jim's proposals.  Putting aside the
justiciability issues, and having looked more closely at Article V's Equal
Suffrage Clause, I'm less inclined to view the Clause as a free-standing
requirement that intrudes into the Senate's procedural rulemaking
authority.  Rather, the Clause seems tethered to the constitutional
amendment context.  A few things make me lean in this direction: Supreme
Court precedent, the text of the Equal Suffrage Clause, its location within
Article V, and historical practice.

First, the Supreme Court has--multiple times--characterized the Equal
Suffrage Clause as a limitation on the power of amendment, not as a general
limitation applicable across contexts.  In 1855, the Court described the
Clause as a "permanent and unalterable exception[] to *the power of
amendment*."  *Dodge v. Woolsey*, 18 How. (59 U.S.) 331, 348 (1855)
(emphasis added).  Four decades later, the Court repeated its
characterization: "The constitution ordains affirmatively that each state
shall have two members of that body [the Senate], and negatively that no
state shall *by amendment *be deprived of its equal suffrage in the senate
without its consent."  *Pollack v. Farmers' Loan & Trust Co.*, 158 U.S.
601, 621 (1895) (emphasis added), *superseded by *U.S. Const. Amend. XVI.
Three decades later, the Court conducted described the Equal Suffrage
Clause as one of "only two restrictions" on Congress' "power in *proposing
amendments*."  *Dillon v. Gloss*, 256 U.S. 368, 373 (1921) (emphasis
added); *see also id. *at 373-74 (noting that Article V "subjects this
power to only two restrictions: one that the proposal shall have the
approval of two-thirds of both houses, and the other *excluding any
amendment *which will deprive any state, without its consent, of its equal
suffrage in the Senate") (emphasis added).  Finally, the Supreme Court in
1929 explicitly held that the Equal Suffrage Clause constitutes
"constitutes a limitation upon the *power of amendment*," which did not bar
the Senate from depriving Pennsylvania, without its consent, of one of the
Commonwealth's two senators by refusing to seat a senator-elect pending
investigation into the senator-elect's election.  *Barry v. United States
ex rel. Cunningham*, 279 U.S. 597, 615-16 (1929) (emphasis added).

Second, the text of the Equal Suffrage Clause suggests that the Clause
applies only to constitutional amendments.  The Clause begins, "*and that*
No State...", suggesting that the Clause is subject to the "Provided"
language in the preceding clause.  This seems to tether the Equal Suffrage
Clause to the constitutional amendment discussion.

Third, the Clause's location within Article V (outlining the constitutional
amendment process) suggests that the Constitution confines the Equal
Suffrage Clause's operation to the constitutional amendment context.  If
the Clause were meant to limit the Senate's procedural rulemaking authority
(or other powers, like its expulsion power or its power to judge senators'
elections/qualifications/returns), Article I might serve as a more natural
home for the Clause.  It might also plausibly appear in Article VI, where
other congressional restrictions also appear.  But if the Clause has force
outside the constitutional amendment process, Article V is (at best) an
awkward location.

Finally, applying the Equal Suffrage Clause beyond constitutional
amendments would upset historical practice.  For instance, if the Clause
applied beyond the constitutional amendment context, it could impact the
committee system: states with senators on, say, the Appropriations
Committee get a greater power to alter the internal within-the-Senate
course of certain legislation than states without a senator on that
committee.  And a senator can be excluded from the Appropriations Committee
without that state's consent.  Likewise, a broader interpretation of the
Clause would interfere with the Senate's expulsion power.  Following
expulsion of a senator until the expelled senator's replacement arrives, a
state is deprived its equal suffrage in the chamber.  Reading the Clause
broadly would bar the Senate from expelling senators (at least, without the
state's consent), unless the Senate took some remedial action to preserve
the state's equal suffrage.  For instance, the Senate might allow the
expelled senator to remain until the state's replacement arrived, or the
Senate might authorize the state's remaining senator to cast two votes on
each question.  But as best I can tell, this does not accord with
historical practice.  (*Cunningham* makes a similar point.)

But not *all *the evidence does cuts in this direction.  One thing that
gives me pause is the semicolon preceding the Equal Suffrage Clause, which
creates a more significant break from the preceding clause than would a
comma or the absence of punctuation.  Moreover, I did not review any of the
Philadelphia Convention materials or debates from the state ratifying
conventions; I wonder if they contain material suggesting the Clause should
apply beyond constitutional amendments.

Steve Kolbert
(202) 422-2588
steve.kolbert at gmail.com
@Pronounce_the_T

On Mon, Jan 25, 2021 at 12:21 PM Michael Morley <mmorley at law.fsu.edu> wrote:

> Article V of the Constitution provides, "[N]o State, without its consent,
> shall be deprived of its Equal Suffrage in the Senate."  Although under
> this recommendation each Senator would formally retain one vote, the
> effective weight of each vote would depend on the state's population.  I
> think there's a very strong argument that such a rule would violate this
> provision of Article V.  Especially under Reynolds v. Sims-type reasoning.
> Although each chamber has sole discretion under Article I, Section 5 to
> establish its own rules, I think there's a reasonable chance the Supreme
> Court would find a challenge to such a rule justiciable, either by Senators
> whose votes are devalued, or by people who are adversely impacted by laws
> that have not been passed by a numerical majority of Senators voting on the
> issue.
>
> Regarding your second hypo, there's also likely an argument to be made
> that the Constitution's supermajority requirements for certain Senate
> actions (i.e., overriding a presidential veto) implicitly require a
> numerical majority of Senators voting to vote in favor of other
> constitutionally specified actions, including the passage of legislation.
> And so if Senators representing a majority of the population vote to pass a
> bill, but they did not constitute a numerical majority of Senators voting
> on the issue, then the bill's purported passage may be invalid under
> Article I, section 7.
>
> Michael
>
> Michael T. Morley
> Assistant Professor of Law
> Florida State University College of Law
>
>
> ------------------------------
> *From:* Law-election <law-election-bounces at department-lists.uci.edu> on
> behalf of Gardner, Jim <jgard at buffalo.edu>
> *Sent:* Monday, January 25, 2021 11:55 AM
> *To:* Election Law Listserv <law-election at uci.edu>
> *Subject:* [EL] Senate rules
>
>
> 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
>
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>
> e-mail: jgard at buffalo.edu
>
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