Thursday, December 13, 2012

Changing the Senate's Rules

Gerard N. Magliocca

A number of scholars, including a few members of this merry band of bloggers, have signed a letter to the Senate explaining why it is constitutional for a simple majority of senators to change the rules on filibusters (or anything else) at the start of the new Congress next month.  


Interesting group. A bit surprised Prof. Akhil Amar didn't sign.

A statement was provided:

"since the first set of Senate rules was adopted in 1789, there have been several general revisions to the Standing Rules, along with far more numerous piecemeal changes"

It might have been helpful to cite a listing of such changes.

I think that I have read most, if not all, of the academic writing on the filibuster, and I do not recall anyone making the claim that "the Senate has consistently recognized the its authority to change its procedural rules by a majority vote on the first day of a new Congress." The letter suggests that this proposition is supported by instances in which the Senate made general revisions of its rules. While i am aware that there were such revisions(all of which were prior to the 20th century), but I am not aware of anyone claiming that they stood for such a proposition (even Common Cause doesn't argue that in its lawsuit, I don't believe). Like Joe, I would like a listing of these instances and perhaps a fuller explanation of their significance.

Moreover, while it is true that most of the handful of scholars who have written on the filibuster believe that it is unconstitutional for the Senate to insulate its rules against change by a simple majority, I am not aware that any of them have suggested that this is tied to the "first day" of the Senate. Maybe Aaron Bruhl's article could be interpreted that way, but I don't think that this is actually his position. If you could cite me to an academic work that says this, I would be most appreciative.

Should the "dead hand" of Senates past remain in control?

Are there other "expert" letters out there on this issue? Perhaps mls is in a position with his extensive readings "most, if not all, of the academic writing on the filibuster," to come up with a letter to counter the letter presented here.

In a December 2010 35 pp., well-footnoted document filesize 135 kb author G.Maglioca, the mentions of majority leader M. Mansfield's precedent setting solution to the anti-integration filibuster blockade in the US Senate during the civil rights legislation passage efforts ~30 years ago, are contained on pp. 4 + 15.

I take the above referenced historical review paper as my key insight into what Senator Reid's current decisions about rules for the next congress might address.

Congressional Research SErvice's most recent review of the filibuster privilege is in the standard document by CRS' Beth and is quite thorough, with many familiar historians' inputs and a lengthy background of CRS record-keeping. Interestingly, the CRS relating of the tale omits majority leader Mansfield's name altogether when telling the filibuster history and how he altered it. Maglioca's above-linked document describes the majority leader's solution as a basis upon which the senate built a new supermajoritarian rule very quickly.

Even that outcome did not block integration laws' passage; nor did voting rights measures get blocked by filibusters.

The way I remember filibusters from that era, even very elderly and infirm senators were obliged to stand as interminably as their stem-winding rhetoric against integration contained sufficient animating force. If their minds drifted off-topic, their speeches could continue as long as their stamina without any senator having a right to object to what the speaker actually was talking about during the obstruction maneuver.

My ideal next congress senate rule for cloture would reinstate the Mansfield system: mornings for filibusters; afternoons for all the pressing business the senate needs to conduct. Plus, the actual filibuster, senator healthy or not, wouild have to be uttered by the filibustering senator himself or herself.

To those conditions I would add one extra ban, one made explicit for all its repugnancy in fn.10 of Hamdan v Rumsfeld. What is mentioned in that Scotus footnote is a document introduced in the Hamdan trial before the Supreme Court, purporting to be actual historical discussion on the senate floor in debate over passage of the Detainee Treatment Act; the purported transcript of the senate proceeding was inserted into the congressional record by two senators, Sen. Graham, Sen. Kyl; but the discussion never occurred in realtime; it simply was a document produced after the fact by a few senators. Scotus was informed of the misrepresentation of the document's account of the DTA debate which had occurred, and in fn 10 of the Hamdan decision discounted the inserted document's weight for purposes of deciding the Hamdan case in Scotus.

I would hope Senator Reid could block, somehow, insertion of documents like the Kyl-Graham document in the Hamdan matter, into the record for filibusters in the next congress. Filibusters do enough to obstruct congress, without adding purported discussions which did not happen on the upper chamber floor.

The erudite arguments in the current letter extend farther than the limited outcomes I would wish to suggest are appropriate.

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Shag- for the contrary view, you can check out Dove and Arenberg's book, Defending the Filibuster, or Virginia Seitz's law review article. Admittedly, neither is a letter.

John Lopresti visits only occasionally at this Blog and never fails to teach well. There are "good" footnotes but John reveals a sneaky ex post facto footnote revealing Sens. Kyl and Graham as the sneaks. On the subject of addressing the filibuster, I share in John's closing sentence.

As for the linked to letter, considering the variety of signers, I was impressed with the first two sentences:

"The current debate over whether to alter the 113th Senate's rules raises serious questions of policy and political judgments. We take no position on the wisdom of any proposed changes."

I take the signers at their word. I await a non-filibustered serious discussion by the members of the new Senate, who should keep in mind that what's sauce for the goose is sauce for the gander, tempered (hopefully) by what's best for our nation. If changes are made, there will be elections in 2014 with a new Senate in 2015 that may consider, following the election results, whether the changes were indeed best for our nation, after listening to "We the People."


I may read Virginia Seitz's article, but not right away.

Shag- if you would like something more like a letter, you can read this (, which I sent to Professors Chafetz and Bruhl (and a few others) 2 years ago.

I downloaded mls' linked document and have read up to the point of what mls thinks a "Conscientious Senator" should do in considering changes in Senate rules. I'm hoping this is not oxymoronic or a rare creature.

In my reading so far, mls several times references what "Aaron" and "Josh" said but I am unable from the paper to know who they are and what, if anything, they have written on the subject of Senate rule changes. But not knowing interferes with my reading flow. So who are they, what have they written? Perhaps then I can understand the context better.

As an aside, I focus on a "Conscious Senator" who from my experience focuses primarily upon his/her next election more than what's in the best interests of the nation. And they have to continually raise campaign funds, which means it is not "profitable" spending actual debating time for hours on end in the course of a filibuster. Yes, there is a tyranny of the majority; but there is also a tyranny of the minority. Let's have filibusters like in the old Strom Thurmond days.

Shag- Josh is Professor Chafetz ("The Unconstitutionality of the Filibuster") and Aaron is Professor Bruhl ("Burying the Continuing Body Theory of the Senate"). Sorry for the confusion.

The hypothesized Senator may be rare, but no rarer than Professor Dworkin's ideal judge . . .

Our system protects the minority in various ways including in the multiple veto points of legislation.

The actual thing on the table is not even the end of the filibuster but the tweaking of some of the rules. Up with Chris Hayes a few weeks back had a discussion with a former parliamentarian and another supporter of the filibuster & they supported a large part of the proposals.

As to when the rules can be changed, I think the bare text doesn't place a limit, but the idea that it should be the beginning of the session is a logical compromise of sorts taking into consideration various factors.

The text of the Constitution appears to me to give broad power for the Senate majority to change the rules. The "unwritten constitution" suggests some more limits. The proposals that I am aware of with any chance of passage imho are clearly allowable, using a simple majority vote at the start of the session.

This does that end the idea of the continuing Senate which Prof. Amar leans toward supporting while still supporting majority vote to change the rules.

mls has provided various studied analysis that disagrees with me, Shag, Mark Field and others, but with respect, like mahy debates in this area, there is simply not "one answer" and the result ultimately is a political question.

Yes, it is a political question. As I noted earlier, the signers of the letter made this point upfront.

I finished mls' paper and as I read of Xena, the "Conscientious Senator," I thought of the late Joseph Heller's "Catch-22," and the travails of Yossarian. Since mls wrote his paper, with the 2012 elections there will be 20 female Senators in the new Senate in January. Is one or more of them a Xena? With respect to Senate precedent that is set forth in mls' paper, much of it came about before there were women in that body, and very few until recent years. So instead of the Dead Hand of Senates past controlling, we have more new brooms to sweep clean.

I have a better understanding of mls' viewpoints with his references in his paper to H.L.A. Hart and in an earlier comment on Ronald Dworkin. I'm not sure if either Hart or Dworkin focused on Senate rules, including filibuster. Both Hart and Dworkin stress justice.

erratum: "This does that" should be "This does not"

I probably shouldn't have said "clearly" allowable. Such modifiers only raise unnecessary hackles.

I was not aware Xena, Warrior Princess went into politics, btw.

[reference to a 1990s t.v. show]

My paper makes two fundamental points. First, while a bare Senate majority has the power to change the rules, the exercise of this power can only be legitimate if it is acknowledged as an extra-constitutional act from the standpoint of the Senate's existing legal system. It cannot be viewed as legitimate within the framework of that system. This would roughly track Hart's distinction between the ultimate rule of recognition in a particular legal system (which is treated as a given, and rests on the acceptance of that rule of recognition by the relevant population, not on legal analysis) and the application of the rules of change for a particular legal system, which is a legal question.

Second, to the extent that Xena concludes that an overthrow of the legal system is necessary (or that her colleagues are insistent on doing so regardless), she will advocate that the first use of the new system (on which changes can be made on the "first day" of the new Senate without the opportunity to filibuster) should be to change Senate rules so that they explicitly reflect the existence of this power. If the Senate approves this change, no further changes should be made until the next Congress.

I'm curious (seriously) as to how the "first day" of the new Senate might proceed in addressing changes in cloture/filibuster rules.The new Senators will be sworn in. Will there have been prior to that discussions among the "old" Senators and the "new" Senators-Elect? Or will there be a clean slate, fresh start? I assume officers will first be elected, majority and minority, some uncontentious housekeeping, and then adopted of rules. Perhaps most of the carryover rules will be approved fairly routinely. [Caveat: Debt ceiling defense tactic?] Assuming that the cloture/filibuster rules are the sole contentious rules, how might the new Senate then proceed? Perhaps a Democrat Senator may move to change such rules by majority vote. Perhaps a Republican Senator might object. Then perhaps a non-filibusterable debate will take place, so that the new Senate may work out the policy and political aspects of any changes to such rules. How long might this debate go on? Might the "first day" of the new Senate extend into several days, weeks, litigation? If so, what will be the message to the public of the new Senate's "first day" of the rest of this Congress?

Shag- the standard CRS brief explaining the Senate’s procedure on the first day of a new Congress may be found here ('0DP%2BPLG9%220%20%20%0A). You will note that this procedure does not include adopting new rules because the Senate is a continuing body. (“The Senate has interpreted the constitutional arrangement to mean that it is a continuing body and does not have to organize itself with each new Congress, as does the House of Representatives. One consequence, among others, of this interpretation is that the Senate does not adopt or re-adopt its rules when a new Congress convenes, this interpretation meaning that the rules continue in effect from one Congress to the next.”)

Certain organizational matters, like committee assignments and ratios, are dealt with on the first day- these are generally just ratifying intra-party decisions and inter-party agreements that were made during organizational meetings in November and December (and which include Senators-elect). These meetings have no formal legislative power, but Title 2 provides authority and funding for them to be conducted.

I have read various descriptions of how the “constitutional option” would be used to change the rules on the first day. Basically, the Majority Leader would exercise his right of first recognition to bring up a proposed rules change, and then he or someone else would assert the position that the proposed rules change is not subject to the requirement that two thirds of Senators voting must support a motion to proceed. The presiding officer (presumably the VP) would make a ruling, which would be appealed to the full Senate. If a simple majority of the Senate agreed with the Majority Leader’s position, a “new precedent” would be established allowing a simple majority to change the rules on the first day.

When Professor Magliocca and his colleagues refer to “the unquestioned constitutional power of each incoming Senate to fix its own rules unencumbered by the decisions of past Senates,” they are using what may charitably be described as legalistic sleight of hand. It is almost certainly true that the Senate has the “unquestioned constitutional power” to change the rules by a simple majority vote, in the sense that there is no outside power (eg, a court) that could stop it from doing so. But this is no different than saying that the Supreme Court has the “unquestioned constitutional power” to decide any case however it wants. The raw power to make a decision does not mean that it is legally or constitutionally unconstrained.

It is certainly not “unquestioned” that the Senate may legally or legitimately exercise the “constitutional option.” Many people can and do question this, including many Senators who support filibuster reform as a matter of policy.

The letter is also misleading when it suggests that the Senate’s “unquestioned constitutional power” is limited to the first day. Those that believe the constitutional option may properly be used fall into three categories (1) those who believe that it may be properly exercised at any time, (2) those who believe that it may properly be exercised at any time, but is somehow stronger under Senate precedent if exercised on the first day ( and (3) those who believe that it can be properly exercised only on the first day. There are probably some senators who fall into the third category, but I am not aware, prior to Professor Magliocca’s letter, of any academics taking this position.

I would again invite further explanation from Professor Magliocca on these points.


mls' critique of the signers of the letter:

" ... they are using what may charitably be described as legalistic sleight of hand. It is almost certainly true that the Senate has the 'unquestioned constitutional power' to change the rules by a simple majority vote, in the sense that there is no outside power (eg, a court) that could stop it from doing so. But this is no different than saying that the Supreme Court has the 'unquestioned constitutional power' to decide any case however it wants. The raw power to make a decision does not mean that it is legally or constitutionally unconstrained."

to be charitable, is no different from his scripting in his paper of the "Conscientious Senator" and what she would do, reflecting his personal and political biases. The oath to support the Constitution applies equally to the houses of Congress, the Executive and the Supreme Court, without supremacy in doing so granted in the Constitution of one branch over the other. If voters disagree with the Executive or Congress, accountability comes with the vote, unlike the Court (except as the Court may follow the election results per Mr. Dooley). When the Senate acts, not all Senators may agree that the act is constitutional, just as is the case with a decision by the Court. A lot of things in life are questioned, like Bush v. Gore. If a change by the Senate of its rules on cloture/filibuster is an exercise of raw power that cannot be addressed by the Court, so be it. But Senate members will be accountable to voters, unlike - as previously noted - the Court. This is a political matter, apparently unquestionably.

As for realistically expecting a response from Gerard, he can only speak for himself and not the group. Perhaps as an antidote to the letter, mls might update his paper and send it to Senate members, who may then determine whether any of them may fit the bill of a "Conscientious Senator" in addressing this issue.


mls at one point cited credentials on this subject, so sending a letter as an expert would seem appropriate.

I agree with Shag that the so-called "raw power" here is matched by elective checks. Also, the filibuster has been abused (imho) and is not being used in the traditional fashion.

Change in rules including in the common law sense of the "law" cited here includes changing it when the situation merits it. The two pro-filibuster experts I cited admitted the filibuster was being abused but basically threw up their hands. How convenient.

I'm not a "Kard-Karrying" member of Daily Kos, but I visit its website several times each day. Joan McCarter has a 12/17/12 post on filibuster reform that includes suggestions I think should be seriously considered. It is important that debate in the Senate not be unduly restricted. These suggested reforms may work for both parties (when in power and when not in power) in the Senate. These reforms could be enacted without the majority of the new Senate using the constitutional option (nuclear or otherwise). The Constitution limits Obama to his second term, so perhaps the goal of the Senate minority should be to encourage real debate as well as conduct its business for the good of the nation in what are unsettling times.

Shag- I don't see how these reforms could be enacted without use of the constitutional/nuclear option. (Unless, of course, two-thirds of the Senate supports moving the motion to proceed).

mls: I'm thinking of the "unless" option, which a "Conscientious Senator" might consider to avoid the nuclear majority.

It's a bit amusing that "constitutional" and "nuclear" is used together here as if following the text of the Constitution and limiting yourself to the beginning of the session at that is akin to a mushroom cloud.

Joe- I think you will find a fairly consistent usage across party lines- its "constitutional" when we do it, "nuclear" when they do it.

Uh huh. It's amusing whatever side uses the word "nuclear."

It may be dyslexic, as some may consider it "unclear" constitutionally speaking, like the "physical cliff." And consider George W's (aka Shrub) nuclear diction.

Joe and Shag- so who do you suppose might have said this? :"If the nuclear option is used to change the rules for the filibuster, it can be used to change literally any Senate rule. The Senate, as it has existed for over 200 years, will fundamentally change. No longer will the majority of Senators need to heed the views of the minority."

Or how about this? "There was no mistaking the purpose and potential consequences of the nuclear option. The Senate would by fiat overrule an established procedural principle to serve the immediate interests of the president and respond to a vocal constituency. And in so doing, it would establish a precedent that would threaten to change the essential character of the institution, making the Senate much more like the House."

mls falls back on the juvenile when the shoe was on the other foot quote game. I wonder if the archives would reveal mls' views when the shoe was on his foot instead of up his derriere. Perhaps there are enough "Conscientious Senators" to avoid the "unclear option" but provide for meaningful, actual time-on-the-floor debate by means of the "unless" option referred to earlier with the Daily Kos suggestions. Or is mls more interested in the future if and when the shoes change? With the demographics, mls' side may go barefoot for some time, unless ex-Speaker Gingrich comes up with the solution for the party of angry white men.

Now back to the shoe on the other foot quote game.

Shag- you are correct that it is easier to spot the mote in one’s brother’s eye than the beam in one’s own. And it is also true that many senators and others have supported the “nuclear/constitutional option” when it would benefit their side, while decrying it when it would hurt their side. I would note, however, that there have been many senators over the last century who have denied the legality of the nuclear/constitutional option despite favoring the underlying reforms at issue, while there are few if any examples of senators endorsing its legality even though they opposed the reforms.

As for your accusation of my being “juvenile” (remember that beam/mote thing?), I am not trying to point out hypocrisy or inconsistency for the sake of amusement. (Admittedly, I do that sometimes, but that’s not my purpose here). Rather I would like to facilitate a more serious discussion of the actual legal issues than the December 12 letter provides. The question of when and how the Senate can change its rules is an arcane, but quite important, legal issue. The answer provided by the December 12 letter is quite simplistic and, IMHO, wrong.

So I would like to encourage our host to engage on specific criticisms that I have raised here and will be raising shortly at Point of Order. I gather that Joe is also interested in getting some information on the question of how the Senate’s previous general revisions to the rules support the proposition stated in the letter (as it turns out, they don’t).

Of course, an alternative point of view is to view this as a “political question,” not just in the doctrinal sense (which it certainly is), but in the sense that it is all just political spin to dress up pre-ordained conclusions. Of course, if the Senate cannot be expected to take constitutional and legal questions seriously, there is no point in law professors weighing in, and no reason for citizens to expect it to observe constitutional restraints.



"The question of when and how the Senate can change its rules is an arcane, but quite important, legal issue. The answer provided by the December 12 letter is quite simplistic and, IMHO, wrong."

If it is "wrong," do you also think it is unconstitutional? Or is there a distinction worth a mote or a mite or a log?

By the Bybee [expletives deleted], have you seen the post at the Originalism Blog on Gerard's post and the letter he signed?

I am saying that their legal assertion is wrong. They, of course, do not have a constitutional obligation to be right, but I think a senator has a constitutional obligation to faithfully interpret and apply the law of the Senate when ruling on a parliamentary question presented to that body. So I think it is important that the Senate not be presented with inaccurate information.

I have seen the Originalism Blog post and they will link to my views when they come out.

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Michael L. Stern (mls) of Point of Order Blog found no "no basis for distinguishing between Supreme Court nominations and other nominations"?

Is there really no basis for such a distinction. Let's take a look. The first basis is that there are vacancies in the lower federal courts, while there are no vacancies in the Supreme Court and there has been no problem with long vacancies on that Court. There are three long-standing vacancies on the D.C. Circuit. This suggests at least one factual basis for the distinction.

Second, a filibuster of a Supreme Court nominees has not been used at least since 1968, when Senate opposition to Abe Fortas caused him to withdraw his nomination and leave the Court. (There is a tiny historical debate whether it was a real filibuster, but we will assume for now that it was). Numerous nominees for the lower courts have just been filibustered, including three for the D.C. Circuit. This is another factual distinction.

Third, the Constitution is clear and unambiguous: "Each House may determine the Rules of its Proceedings...." Most would agree that this is a plenary grant of authority, but there are limitations. The Senate cannot use its rulemaking power to change the majority vote requirement, to originate a bill raising revenue, or to adjourn without House consent for more than three days. It cannot use its rules to bypass the Presentation Clause with a congressional veto (Chadha) or to bypass the two-thirds requirement for expelling a Member by refusing to seat him (Powell). This is a power committed by the text of the Constitution to the discretion of one of the three branches of the federal government. Nothing in the Constitution limits the authority of the Senate to distinguish between the Supreme Court and other judicial nominations.

Fourth, under the express terms of the Constitution, the Supreme Court is in fact different from the lower federal courts. In mandatory language, the "judicial power of the United States, shall be vested in one Supreme Court...." By contrast, it may be vested "in such inferior Courts as the Congress may from time to time ordain and establish." The Supreme Court exists because of the Constitution, while the lower courts are the creatures of Congress. Congress has complete discretion over the jurisdiction of the lower courts, while Supreme Court jurisdiction is set forth in Article III These are sound bases for distinctions.

Finally, the Supreme Court is different because it is supreme. The lower courts are bound by precedent from higher courts, but the Supreme Court can reverse its own precedents. Its constitutional holding can only be reversed by its own later decision or by constitutional amendment. Its Justices are far more powerful than any lower federal judges.

mls (Michael Stern) told me "Vince- yeah, I am pretty familiar with the Rules of Proceedings Clause...." I was unaware of the background of "mls" but I now know that he is Michael L. Stern, former Senior Counsel to the House under Republican Speakers Gingrich and Hastert and holder of other senior positions on the Hill, so his credentials are impressive. In my disclosure, I was an attorney in the law division of CRS for 25 years, but did not deal with congressional rulemaking.

Michael maintains "that the recognition of congressional rules by the Constitution necessarily means that those rules have a content independent of the body’s will at any particular moment. Otherwise there would be no rules at all." Where do we find this content? Is it a brooding omnipresence in the sky over the Capitol? I think that the limits on the rulemaking power must be derived in the text and structure of the Constitution itself:

Houses of Congress may not “ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. But within these limitations all matters of method are open
to the determination of the house. . . ." [U.S. v. Ballin, 144 U.S. 1, 5 (1892)]

The new rule does not impair fundamental rights by, for example, discriminating according to race, sex or religion. I have listed numerous rational bases for the new rule, and I am sure there are many more.

I agree with the professors when they wrote last December that "no pre-existing internal procedural rule can limit the constitutional authority of each new Senate to determine by majority vote its own rules of procedure." But I do not think they directly addressed the question whether the determination may take place in mid-session. I disagree with the notion that the rulemaking power cannot be exercised mid-session. I agree that "The letter is also misleading when it suggests that the Senate’s 'unquestioned constitutional power' is limited to the first day."

Do "the Rules of Proceedings Clause means that the Senate’s decision is correct, regardless of what the actual rules say?" Yes. I think that no pre-existing internal procedural rule can limit the constitutional authority of each Senate to determine by majority vote its own rules of procedure; its authority is limited by the Constitution, but not by its own rules; its exercise is not limited to the opening of a new Senate.


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