Can the Senate Bind Itself So that Only a Supermajority Can Change Its Rules?

With the Supreme Court's Term wrapped up, speculation about possible retirements and replacements is running high. As a result, the continuing judicial nominations debate in the Senate has taken on an increased importance.

As I explained in my last column, the Senate's Republican leadership has been exploring ways to prevent the Democrats from using the filibuster device. They would like to ensure that, instead, a simple majority rule governs when it comes to judicial nominees.

Some have argued, in support of moving towards a majority vote approach, that the filibuster itself is unconstitutional - and, indeed, undemocratic. But it's somewhat likely that even if this argument were correct (a question addressed in my previous column), Republicans still wouldn't be able to get a court to strike down the filibuster rule, due to the "political question" doctrine and other jurisdictional stumbling blocks.

As a result, Republicans, from a practical standpoint, have only one recourse: They can try to change the filibuster rule through normal Senate procedures. But there's a catch. Under another Senate rule, part of Senate Rule XXII, to change the filibuster rule itself requires a supermajority of 67 votes.

That second supermajority requirement raises the question I will take on in this column: Can a simple majority of the Senate make rules that require a supermajority to undo?

To provide some background, I will briefly recap some of the main points in my last column. (Readers familiar with that column thus may skip ahead to the next section.)

Currently, the filibuster allows Democrats to block judicial nominations that have majority, but not supermajority, support. Sixty so-called "cloture" votes are needed to end a minority filibuster and bring a nomination to a final vote on the Senate floor.

As a result, nominees with fifty-nine or fewer supporters are out of luck as long as the cloture rule stands. But Senate Republicans - who command a majority, but not a supermajority, in favor of certain controversial nominees - would like to change that.

Here's their constitutional argument, in brief: The Constitution itself is quite clear about when supermajorities are required (as, for example, in overriding a Presidential veto). That implies that otherwise, majority rule governs. So the Senate cannot, constitutionally, require a supermajority vote to end debate on a matter. The cloture vote supermajority requirement is thus unconstitutional, and must be replaced by a simple majority vote procedure.

But there's a response to this argument: Granted, the Constitution does not by its terms require a supermajority to end debate. But neither does it forbid the Senate from operating under a supermajority approach. At most, it's agnostic on the issue.

Meanwhile, the Constitution explicitly authorizes "each house" of Congress (that is, the House and the Senate) to "determine the Rules of its Proceedings" - which would seem to leave the Senate's rules up to the Senate, not the Constitution itself.

According to this argument, a rule about how many votes are needed to end debate is a "rule of [the Senate's] proceedings." As a result, the cloture vote is perfectly constitutional.

Whether or not one agrees with this argument, once again, the practical reality is that no court is likely to strike the cloture vote rule down.

That brings us to the Republicans' last resort. They could try to change Senate Rule XXII, which requires a supermajority (67 votes, or 2/3 of the Senate) for rule changes, so it requires only a simply majority. Then they could try to change the filibuster rule itself, so that cloture requires only a simple majority, where judicial nominations are concerned.

This time, the Republicans might not have to go to court to win. They could pass, by a majority vote, a new rule for rule changes. Then they could, among their colleagues, defend its validity on the grounds that the prior, 2/3 supermajority rule-change requirement in Rule XXII was unconstitutional, and no other Senate rule has been violated. Then they could invoke the new rule-change rule to change the filibuster rule by majority vote. And then they would be home free: They could essentially pick judicial nominees, including Supreme Court nominees, over Democratic protests.

If the Republicans took this route, would their argument - that the 2/3 majority rule-change rule is unconstitutional - be correct?

To begin to consider this question, recall that the Constitution stipulates that "each House may determine the Rules of Its Proceedings." "Each House" probably means "a majority of each House." But which majority? The majority now, or the majority when the rule was enacted? After all, a majority of the Senate passed the current version of Rule XXII, which requires 67 votes for any rule changes.

Put another way, can a past Senate majority (the one that enacted the rule-change rule) bind a future Senate majority?

To permit past Senate majorities to tie the hands of future Senate majorities would, as legal scholars like to say, "entrench" past policies. And entrenchment is usually a bad thing - in a country devoted to majority rule generally, denying current majorities the ability revisit past rules is presumptively problematic.

But some people argue that majority rule arguments don't really work well when applied to the Senate. After all, the Senate is itself an institution not predicated upon majoritarian principles; small states - and their voters - have a bigger voice than do large states and their voters.

In spite of that, though, my sense is that most constitutional analysts believe that each new Senate over time has a right, by majority vote, to make whatever procedural rules it wants.

The Supreme Court seems to think so, too. In a number of cases arising in a variety of different constitutional areas, the Court has expressed its belief in the principle of legislative equality - meaning one legislature has the same powers as another, and by implication, that none has the power to bind its successor. Thus, there are strong indications in Supreme Court caselaw that the Court would not approve of the 67-votes-to-amend rule-change rule, and would deem it unconstitutional.

As with the issue of the constitutionality of the filibuster rule itself, it is likely that the Court would refuse to review the rule-change rule based on the political question doctrine. But we can't be completely certain: The Court has, in a broad sense, addressed, and corrected, Congressional rules before, in INS v. Chadha and Powell v. McCormack.

Moreover, we must always remember that just because a court may be reluctant to weigh in does not mean that there is no constitutional law to apply. If the Republicans can persuade Senate colleagues on the constitutional front, they could, at least in theory, still win the day. And it is useful for citizens to know, in any event, if their representatives are complying with - or flouting - the Constitution.

That means that the old Senate can't bind the current Senate. It also means that Republicans could, indeed, revisit the rule change rule; amend it to require only a simple majority, not a supermajority; and then, by majority vote, change the filibuster rule - and put through any nominees they want. Game, set, match.

In probably the most important academic commentary on this topic, professors Erwin Chemerinsky and Catherine Fisk point out that the basic principle that "One legislature cannot bind subsequent legislatures" has a long history in the British law upon which American law liberally drew.

What is the rationale for the principle? On this point, Chemerinsky and Fisk invoke the storied British commentator Blackstone: "'Acts of Parliament derogatory from the power of subsequent parliaments bind not. . . Because the legislature, being in truth the sovereign power, is always of equal, always of absolute authority: it acknowledges no superior upon earth, which the prior legislature must have been, if its ordinances could bind the present parliament.'"

Put more simply, the legislature's power is constant. When a legislature tries to make a future legislature inferior in power, by binding it, it violates that principle.

Moreover, binding a future legislature by requiring it to do certain things by supermajority vote leads to a special slippery slope. Suppose a prior legislature could impose a supermajority requirement on a future one - as a past Senate tried to do with the rule-change rule. Presumably, it could go further - and require absolute unanimity for rule changes, effectively setting its rules in stone. Indeed, it could go further than that, and require unanimity for all amendments of all laws, setting its laws in stone too.

Of course, as Erwin and Catherine mention, in the United States, the legislature is not the sovereign - the source of all lawful power. Sovereignty resides in the people. That, after all, was the main message of the Declaration of Independence.

As a result, drawing on a British commentator may not be dispositive, given that there is no U.K. Constitution there to complicate matters. In the U.S., the real question becomes not whether one sovereign Senate can bind a future sovereign Senate, but rather whether We The People wanted to give earlier Senates the power to bind future ones.

But that question only leads to the same answer Blackstone gave, for there is no compelling reason to think We did. And indeed, it seems more democratic not to - and to allow all legislatures, like all of Us, to be "created equal."

Such "legislative equality" would imply that legislatures cannot bind their future successors. That means, in turn, that current legislatures can't blame the past (that is, those who are out of office, or even long dead) for what they do. Rather, they must take responsibility for it themselves. As a result, they are more accountable to current voters, who can be sure that whatever current legislators do is fully "up to them" and (if voters don't like it) "their own fault."

Another perspective also illuminates why it is undemocratic for legislators to be able to bind their successors. Congresspersons are supposed to serve limited terms, and then face re-election. But if they can immunize their decisions from later reconsideration, they effectively serve longer. Last election's candidate - the bum thrown out of office - can remain influential because he or she entrenched rules his successors cannot easily change.

That leads us to a somewhat wild idea: Could the Constitution's own supermajority rules actually be unconstitutional - in the sense that they conflict with deeper, more fundamental democratic principles that the Constitution embodies? Are they all therefore invalid - so that, say, the Senate's impeachment trials must also proceed by majority rule?

Fortunately, the idea is just as wild as it sounds. That's because majorities are free to impose supermajority requirements on themselves, provided the ultimate sovereignty is free to revisit those requirements by a simple majority vote.

That is the core principle the Senate's rule-change rule, Rule XXII, violates - and that is the core principle that makes Constitutional supermajority requirements, and the filibuster rule's supermajority requirement okay.

After all, without the rule-change rule, the Senate could do the same with its own filibuster rule. We the People can change the impeachment rule if we like, and replace it with a simple majority rule. The key is that the reins of power remain in the right hands - the hands of a simple majority, either of the respective House of Congress, or of We the People.

To add even more complexity, the Constitution has its own rule-change rule. And guess what: It requires a supermajority.

That rule is Article V of the Constitution - which, as you may remember, requires Constitutional Amendments to be ratified by three-quarters of the states (or 38 out of 50).

That rule-change rule can thwart the desires of a majority of the states. More importantly, it can also thwart the desires of a majority of We the People. Consider, for instance, a scenario where the 13 smallest states ganged up to stop a given proposed Amendment. They could thwart majority rule, and the democratically-expressed desires of hundreds of millions of people.

So is it possible that Article V is itself unconstitutional? And if not, why not?

As I've noted, the Supreme Court, and most legal commentators, believe that a majority of each newly-constituted Senate must have the power to revisit the rules of earlier Senates. Then why does not each newly-constituted majority of Americans have the sovereign right to revisit the rules (call them the Constitution) adopted by earlier generations?

These are profound questions that I will address in a column later in the summer. For now, let me just say that, as these questions indicate, the entrenchment debate in no way stops with the filibuster, and the Senate's rule-change rule.

Instead, the debate is far larger - touching on the broad, crucial question of how easy it is, or ought to be, for simple majorities to change the rules laid down by earlier generations. Are all generations also created equal?

As opposed to the much more volatile nature of parliamentary governing, wherein the majority automatically forms the government, the Constitution is a recipe for occluded, slow change in government. But not a stop. The Democrat's ability to stop judicial appointments when they in minority is antidemocratic. The people have a right to be governed under the policies of the officeholders they elect. Majority rules or there is no republic.

The Democrat's ability to stop judicial appointments when they in minority is antidemocratic.

That may be, although I don't think it's necessarily a bad thing. I think if I was writing the Constitution, I'd probably require that judicial confirmations be by supermajority. This would reduce the perception of partisanship, and make the Senators more comfortable about probing further into the types of rulings the nominee would make, rather than beating around the bush the way they do now.

The problem in the current situation, IMHO, is not that the Democrats are effectively requiring a supermajority, but that the Republicans aren't taking the case to the people as to why their judicial nominees are best for the job. They should be pointing to their records and showing that they do indeed have the proper understanding of the Constitution to be fit for the job. They should be pushing a massive (and long overdue) public debate as to what the Constitution says and doesn't say. This provides a golden opportunity for it.

I found it interesting that Madison proposed to require a superminority to confirm judges.
-That 2/3 would have to vote against the nominee.

I gotta say that it no longer amazes me that a good article on constitutional law takes no notice of Madison's maxim that the ultimate determination of constitutional meaning comes from the debates over it's ratification.

After the recent ruling I wouldn't be surprised if the Supreme Court ruled that nominees must be voted on becuase it demeaned them and interfered with their supernatural aspirations not to; or that they shouldn't be because that demeaned the Senate minority's etc, etc...
Sigh (end of rant, sorry).

I found it interesting that Madison proposed to require a superminority to confirm judges.

Madison and a number of others had a very strong confidence in the executive branch, that in my opinion was based on lack of foresight. Their primary experience with executive power came from the English king. They assumed that the legislative and executive branches would always be natural enemies, because the king and parliament were constantly at odds with each other, with the latter having the sympathies of the people. What they failed to keep in mind was that this was because in England, the two branches derived their power from very different sources. But when the executive is elected, then he becomes the favorite of the people, and the legislature becomes relegated to the sidelines. This is a development which I don't think they anticipated at all.

Good point- Madison expressed frequently expressed a distrust of the passions of the legislature.

A big difference from then and now is the change to popularly elected Senators.

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