News Intelligence Analysis
The following column by Professor Vikram David Amar originally
appeared on Findlaw.com on
June 27, 2003.
Can the Senate Bind Itself So
that Only a Supermajority Can Change Its Rules?
A Key Issue in the Controversial Filibuster
Debate
By VIKRAM DAVID AMAR
This is Part Two of a two-part series by Professor Amar
on the Constitution and the filibuster. - Ed.
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?
The Basic Constitutional Challenge To
Filibusters: A Recap
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.
The Republicans' Last Resort: Attacking
the Rule-change Rule
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?
Can An Older Senate Majority Bind a
Current 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.
Why Blackstone Would Have Hated the
rule-change Rule
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.
Does Blackstone's View Apply in America,
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.
Must the Constitution's Own Supermajority
Rules Also Be Judged Invalid?
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.
Or do they?
Is the Constitution's Own rule-change
Rule Unconstitutional?
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?
Vikram David Amar is a professor of law at the University
of California, Hastings College of the Law in San Francisco.
He is a 1988 graduate of the Yale Law School, and a former clerk
to Justice Harry Blackmun. Before teaching, Professor Amar practiced
at the firm of Gibson, Dunn & Crutcher.
Copyright © 1994-2003 FindLaw
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