[EL] Senate rules

Wed Jan 27 17:45:15 PST 2021

It isn't entirely accurate to say that the smallest states are disproportionately Republican.  Both in 2016 and 2020, Democrats carried slightly more jurisdictions among the jurisdictions that have only 3 or 4 electoral votes, than the Republicans did.  I say "jurisdictions" to include DC, but even ignoring DC, there were an equal number of the smallest states voting Democratic for president than voting for Trump, both times.

Richard Winger 415-922-9779 PO Box 470296, San Francisco Ca 94147 

    On Wednesday, January 27, 2021, 5:37:02 PM PST, Gaddie, Ronald K. <rkgaddie at ou.edu> wrote:  

  #yiv7522621227 P {margin-top:0;margin-bottom:0;}Friends,
In the interests of all of us who are recovering from Trump Twitter Trauma, could I respectfully ask posters to refrain from using all-caps in postings, at least for a little while. Reason, logic, and facts can carry the field without insisting at people.
Many thanks.Keith
Keith Gaddie, Ph.D.President's Associates Presidential Professor of Architecture & JournalismExecutive Faculty Fellow of the University of Oklahoma
Senior Fellow of Headington College General Editor, Social Science Quarterly

"I would like to build a University of which the football team could be proud." ~George Lynn CrossFrom: Law-election <law-election-bounces at department-lists.uci.edu> on behalf of John Shockley <shockley1894 at gmail.com>
Sent: Wednesday, January 27, 2021 6:57 PM
To: Charles H Stewart <cstewart at mit.edu>
Cc: Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] Senate rules I had not planned to contribute to this interesting thread, but Charles Stewart's comments that "for every Rhode Island there is an Idaho, for every California there is a Texas" has forced me to contribute.  Fivethirtyeight did an excellent analysis of why it is hard for the Democrats to successfully put people on the Supreme Court, even as they have won the popular vote in 7 of the last 8 elections.  This article talks about the Republican bias in the Senate, and notes that the MEDIAN state is roughly 6% more Republican than the nation as a whole.  I can also add that TWENTY-FIVE states voted for Trump in November, even as Biden was winning the popular vote by MORE THAN SEVEN MILLION!  In addition, if Biden had increased his margin of victory by another 5%, he would have picked up only TWO states (North Carolina and Florida).  He would have won the popular vote by over twelve million while Trump was still carrying 23 states.  Yes, the Senate is biased in favor of rural, small states, and these states in general have become more Republican than the nation as a whole.  (The article notes that this was not always the case).  The article site is below:
https://fivethirtyeight.com/features/the-senates-rural-skew-makes-it-very-hard-for-democrats-to-win-the-supreme-court/

John ShockleyPolitical Science, retiredAugsburg University
On Wed, Jan 27, 2021 at 3:33 PM Charles H Stewart <cstewart at mit.edu> wrote:

I’ve resisted jumping in here, but as a political scientist who started his career specialized in Congress (and who still teaches in the area), here are a couple of additional thoughts.

   - I could in theory imagine rules that favor members based on state size, short of amending and passing legislation.  The two chambers have certainty wrestled over the years with practices that would violate the one-Representative/Senator-one-vote norm in the chambers.  For instance, committees in the earliest Congresses were under an obligation to report back all bills referred to them, under the theory that no subset of a chamber  should be able to kill a bill through inaction.  And, to the point of a discussion of cutting off debate, the two chambers took about two decades before they would even pass “previous question” motions; some argued that despite what Article I, Section 5 said, muzzling any member who wanted to speak was outside the scope of that provision.  So, these things are potentially fluid.
   - To make a meta comment about whether the Senate would want to pass a rule that gave extra weight to senators in the pre-passage phase, such as allowing cloture votes or other scheduling votes to be population-weighted:  As a general matter, roll call voting in the Senate is uncorrelated with population size.  For instance, on a Congress-by-Congress basis, if you correlate the size of the Senate with measure of roll call voting, such as NOMINATE scores, the coefficient is almost always zero.  For every Rhode Island there’s an Idaho; for every California there’s a Texas.  There _are_ some issues where small- and large-state senators on a regular basis cohere, but they tend to be on issues that fly below the ideological radar of any particular era.  It’s for that reason that I think that population-weighting is a non-starter in the Senate:  it’s way too abstract and unrelated to the big issues that might motivate tinkering with the rules.

-cs

From: Law-election <law-election-bounces at department-lists.uci.edu>On Behalf Of Gardner, Jim
Sent: Wednesday, January 27, 2021 4:00 PM
To: Steve Kolbert <steve.kolbert at gmail.com>
Cc: Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] Senate rules

Thanks to all who have chimed in for an illuminating conversation.  I hope I may, without unduly prolonging the discussion, make a few observations:

   - The question I am posing is precisely whether the Constitution may be bent – “amended” if you prefer – through informal means (in this case, through official practice), so I think it is no answer to quote back the formal document as though that settles anything.  It is clear that the Constitution may be, and has been, amended in just this way on many occasions.  The Electoral College has been completely deformed through practice, a change that the Supreme Court (to my surprise) recently ratified as authoritative and binding.  The presidency looks nothing like the office contemplated by the document; and so on.
   - It is one thing to insist that the Constitution contemplates that the Senate will be a chamber in which representation is by state, but quite another to insist that the Constitution in addition contemplates that the Senate will be a democratically minoritarian institution, particularly after the Seventeenth Amendment.  I do not believe the Framers (of the original document or of the 17A) contemplated any such thing, although they may have recognized it as a possible outcome.  The Senate has no minoritarian teleology.  The problem is an unanticipated pattern of population growth that itself has bent the original constitutional plan, and how it might be addressed short of a constitutional amendment.
   - Legislative rules of procedure have often changed the way the chambers of Congress operate, frequently in ways that seem at odds with the presumptive constitutional blueprint of member equality.  It has already been mentioned that the internal organization of the Senate – leadership positions, committee memberships and chairmanships, etc. – give some Senators more power than others in a way that has never been thought inconsistent with the equality of the states.  Before the post-Watergate reforms, individual members of Congress wielded hugely disproportionate amounts of power – as did their constituents – and that has never been thought to implicate one person, one vote.  If some sort of abstract constitutional blueprint governed the operation of the houses, I find it hard to imagine on what basis the filibuster, an overtly minoritarian institution, could possibility be thought constitutional.
   - I find it really difficult to imagine the federal courts intervening to adjudicate the constitutionality of internal legislative rules, for all the reasons already mentioned.  Would they entertain a challenge to the filibuster on the ground that it is anti-majoritarian?  I really doubt it.
   - I agree that as a practical matter the Senate is unlikely to adopt the kinds of rules about which I speculated.  Nevertheless, I think it would be an interesting institutional reform worth at least a try.

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 athttp://ssrn.com/author=40126

From: Steve Kolbert <steve.kolbert at gmail.com>
Sent: Wednesday, January 27, 2021 2:26 PM
To: Gardner, Jim <jgard at buffalo.edu>
Cc: Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] Senate rules

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 shallby 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 byU.S. Const. Amend. XVI.  Three decades later, the Court conducted described the Equal Suffrage Clause as one of "only two restrictions" on Congress' "power inproposing 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 otherexcluding 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

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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