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Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Defending Quadricameralism
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Wednesday, February 24, 2021
Defending Quadricameralism
David Super
From ninth grade Civics
on, we are taught that the U.S. federal government (and all but one of its states)
relies on bicameralism. Although
arguably true to the constitutional text, this account is grossly
oversimplified. Just as the rise of
political parties and other developments since the founding have transformed presidential
elections, judicial nominations, and other aspects of our constitutional order,
they also have transformed bicameralism into something considerably more complex. For the vast
majority of legislation, we have a quadricameral federal government, requiring
four distinct consents to legislate.
Ordinary bills cannot pass without support from the House majority, the
Senate majority, the Senate minority (to forego or shut down a filibuster), and
the President. On more routine matters,
these bodies delegate authority to House committee and subcommittee chairs,
Senate committee chairs, Senate committee ranking members, and staff in the
White House and cabinet agencies, respectively.
True, neither the President nor the Senate minority may formally amend
legislation as it moves through Congress, but both can and routinely do demand
very specific changes in exchange for their support. And legislation need not win majority support
within the Senate minority the way it generally must within the other three “chambers.” (House speakers and Senate majority leaders
have become largely unwilling to allow legislation to the floor without
majority approval of their caucuses; administrations can be of several minds,
but presumably presidents ultimately pursue their own “majority” impulses.) Still, increasing party discipline makes it
increasingly difficult to peel off enough members of the Senate minority to
obviate negotiating with its leadership. At a time when
loyalties to party swamp those to branches of government or even to states, quadricameralism
effectively ensures that the minority party will have at least one seat at the
table when ordinary legislation is being enacted. At a time when other checks and balances – persuadable
moderates, entrenched governance norms, swing voters, and the courts – are far less
effective, quadricameralism’s importance is difficult to overstate. The Senate majority
is the one “chamber” that is truly indispensable to enacting legislation. Each of the others may be overridden under some
circumstances, typically with extraordinary effort by the other bodies. The House majority may be excluded if the
President, the Senate majority and the Senate minority combine – with the
participation of a foreign interlocutor – to exercise the treaty power. This produces such a plethora of undesirable
consequences that a custom has arisen of involving the House majority in
treaty-making through the enactment of implementing legislation. The President may
be overridden if the Senate majority, the Senate minority, and the House
majority combine – also recruiting part of the House minority – to override a
presidential veto. The dictates of party
discipline make this avenue available only rarely and only on issues that are
deeply controversial within the President’s own party. The Senate
minority may be excluded through a few extraordinary procedures allowing the
Senate to act by a simple majority.
Approving military base closure reports, overriding proposed rescissions
of appropriations, and abrogating recently promulgated regulations under the
Congressional Review Act are three such procedures. By far the most important, however, is budget
reconciliation. This process allows the House
majority and the Senate majority to pass a budget resolution without the Senate
minority (or the President) and then to implement that resolution through
reconciliation legislation without the Senate minority (but with the President). Just as the procedures
for excluding the House majority or the President require arduous steps and an
unusual degree of unity among the other three “chambers”, so too does the passage
of reconciliation legislation without the Senate minority make extensive
demands on the remaining bodies. We
therefore should not be surprised or dismayed that reconciliation procedures pose
significant obstacles to enactment.
Without the Byrd Rule and other constraints on reconciliation bills, we
would rapidly lose our quadricameral system of federal legislation. As I write, the
Senate majority and minority are embroiled in intense arguments before the
Senate parliamentarian over which provisions can and cannot survive in the
reconciliation bill to respond to the coronavirus. They also are arguing over which amendments
can and cannot be offered to it. Unfavorable
rulings often spark a hurried process of redrafting, pressing the Congressional
Budget Office or the staff of the Joint Committee on Taxation to “score”
(estimate the fiscal impact of) the revised version, and resubmitting the
revised provision to the parliamentarian.
Consistent with the “checks and balances” model of constraining
governmental power, three distinct non-partisan expert staffs – those of the
parliamentarian, CBO, and JCT – combine to determine which provisions may move
forward under these extraordinary procedures.
In one sense, this
process is deleterious to traditional ideas of bicameralism. The “Byrd bath” is consuming not just the
Senate but also the House, which has been holding its version of the relief
package until it has a clearer idea what the Senate parliamentarian will allow. Among other risks, if the House bill contains
“Byrd bait” that is stricken when the bill reaches the Senate, that chamber
will have no formal role in crafting an alternative. In addition, representatives from marginal
districts do not want to cast difficult votes for doomed provisions. Few Senate staffers know much about House
rules unless they served there previously, but many House committees now have
their own Byrd Rule experts. From what I have heard
so far, I disagree with some of the parliamentarian’s rulings. Some important provisions may well fall out
of the legislation, causing real harm. I
have seen no evidence, however, of partisan or ideological skew in her rulings,
this time or in the past. And by all
accounts, she is hard-working and transparent about the bases of her
rulings. At a time when we have fewer
and fewer genuinely persuadable people to adjudicate our disputes, her role and
her integrity are extremely important. Sidelining
the Senate minority, like sidelining the House majority or the President, deserves
serious attention as it marks a major departure from the quadricameral means of
legislating that our laws and politics long have relied upon. Of course, many
progressives today are hostile to the very concept of quadricameralism, seeking
to eliminate the filibuster. A comprehensive
response is a task for another day. For
now, I will note only that the past four years have demonstrated that tearing
down is vastly easier than building up.
Without quadricameralism – specifically, without the Senate minority’s
ability to block most legislation during President Trump’s first two years in
office – many of the laws, agencies and programs that are vital to the
progressive agenda might not now exist.
The task of rebuilding them likely would take much longer than a single
presidential term – and might not be possible at all if the Democrats lose the
mid-term elections, or certainly if they lose the White House in 2024. Filibuster reform is for those with a deep envy
of Sisyphus. @DavidASuper1
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Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |