Majority Voting In Congress Further Notes On The Constitutionality Of The Senate Cloture Rule.pdf

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Majority Voting in Congress: Further Notes on the Constitutionality of the Senate Cloture Rule John C. Roberts*

I. INTRODUCTION

The venerable tradition of unlimited debate in the United States Senate, contentious and the Cloture Rule that attempts to circumscribe it, have been much of our history.I throughout scholars and politicians both subjects among For at least the last 150 years, senators have used the weapon of extended debate to prevent majority action on some controversial question. Thus, each generation must address anew the difficult issues surrounding the propriety and constitutional validity of both the filibuster (a pejorative term for the tradition of extended debate when it is pushed beyond "normal" limits) and the Cloture Rule that requires the votes of sixty senators to close debate. The issue is again being discussed as a result of Democratic attempts to block Senate approval of certain controversial judicial nominations by President Bush through use of the filibuster. Majority Leader Bill Frist has threatened publicly to change the Senate rules in order to reduce the number of votes necessary to cut off debate on a rules change, and then to amend the rules to 3 prohibit filibusters of judicial nominations. Two Senate Committees even 4 held public hearings on the policy and constitutional issues involved. Professor of Law and Dean Emeritus, DePaul University College of Law. I am indebted to Mark Giangrande of DePaul's Rinn Law Library for his help on congressional materials. Professor Stephen Siegel provided both advice and historical perspective. I first encountered these issues while serving as General Counsel to the United States Senate Committee on Armed Services from 1977 to 1980. 1

See, e.g., SARAH A. BINDER& STEVENS. SMITH, POLITICS OR PRINCIPLE? FILIBUSTERING IN THE

UNITED STATES SENATE (1997); Catherine Fisk & Erwin Chemerinsky, The Filibuster.49 STAN. L. REV. 181 (1997); ROBERT C. BYRD, THE SENATE, 1789-1989, S. DOC. No. 100-20, at 93-163 (Vol. 2, 1991); CHARLES TIEFER, CONGRESSIONAL PRACTICE AND PROCEDURE 691-766 (1989).

2 See, e.g., Norman Omstein, The Debate to End All Debate, N.Y. TIMES, May 14, 2003, at A25; Helen Dewar, GOP Senators Fail to Force Vote on EstradaNomination, WASH. POST, Mar. 7, 2003, at A06. 3 See, e.g., Carl Hulse, From One Esteemed Corner,A Lesson About the Senate's FilibusterRule, N.Y. TIMES, June 5, 2003, at A32; Helen Dewar, FilibusterRule Change is Urgent, FristSays; Daschle Calls Proposala GOP 'Overreaction,'WASH. POST, June 6, 2003, at A25. As this article goes to press, Senate Republicans are again threatening to modify the Rule at the start of the 109th Congress. Charles Babington, GOP Moderates Wary of FilibusterCurb, WASH. POST, Jan. 16, 2005, at A05. 4 JudicialNominations, Filibusters,and the Constitution: When a Majority Is Denied Its Right to Consent: Hearing Before the Senate Subcomm. on the Constitution, Civil Rights, and Property Rights,

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The current controversy about a portion of the Cloture Rule - the clause which requires two-thirds of those present and voting for passage of a motion cutting off debate on a change in the Senate rules - is part of a larger struggle over the Senate's tradition of extended debate, the Cloture Rule provision requiring 60 votes to end debate on non-rules issues, and ultimately the place of supermajority voting rules in Congress. In a provocative article in these pages, Virginia Seitz and Joseph Guerra examine the narrowest of these questions, the constitutionality of that portion of the Cloture Rule which requires an affirmative vote of two-thirds of those present and voting to end debate on a proposed amendment to the Senate Rules (including, of course, the Cloture Rule itself).5 They argue for the constitutionality of this rule, which is designed to further entrench the Cloture Rule by making it even more difficult to modify the rule than to actually obtain Cloture on a substantive vote.6 Their position is that whatever one's views on the constitutional validity of the filibuster itself, or on the main Cloture Rule for cutting off debate, the sub-rule requiring a larger supermajority to end debate on rules changes stands on a different constitutional footing.7 They find that it does not violate any asserted underlying constitutional norm of majority rule, nor does it run afoul of the accepted legal stricture that one session of the Congress cannot bind a subsequent one - the anti-entrenchment principle. On the latter issue, they accept the anti-entrenchment principle, but assert that it does not apply to rules regulating debate. 9 These issues are worth discussing because they involve core principles of majority rule in a representative democracy. In fact, it is extremely difficult to separate out one clause in the Cloture Rule for special analysis, as Seitz and Guerra attempt to do, without confronting the larger issue of the constitutionality of any rule which imposes a supermajority voting requirement on the Senate or the House. 10 In this article I will take a second Comm. on the Judiciary,108th Cong. (2003); Hearingon Senate Rule XXII and Proposalsto Amend this Rule: Before the Senate Comm. on Rules and Admin. 108th Cong., (2003). Both featured statements for and against proposed cloture rules changes by senators and scholarly commentators. 5 Virginia A. Seitz & Joseph R. Guerra, A ConstitutionalDefense of "Entrenched" Senate Rules GoverningDebate, 20 J.L. & POL. 1 (2004).

Id. at3. 7 Id. at 22. Id. at 18-22. 9 Id. '0 While Seitz and Guerra on occasion restrict their analysis to the portion of the Cloture Rule dealing with rules changes, at other times they seem to argue more generally for the constitutionality of the entire Cloture Rule. Since both the main rule and the special provision on rules changes are rules regulating debate, the arguments for and against them should be identical. In this article I will treat both parts of the Cloture Rule as raising the same issues. 6

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look at the interesting arguments raised by Seitz and Guerra and also venture some thoughts on the larger question of super-majority voting, which is much debated in the scholarly literature. That issue, like the filibuster, flares up from time to time, and it most recently received extended attention when the reform-minded House of Representatives under Congressman Gingrich I adopted a super-majority rule for future increases in tax rates. This article will not replay all of the excellent analysis by scholars on the constitutionality of the Cloture Rule or the place of majority voting rules in Congress. But I will attempt to add some additional ideas to the discussion, focusing on four fundamental questions: 1. Is the Cloture Rule, as it relates both to rules changes and to other votes, binding on the Senate in some legal or constitutional sense, or can it be altered or repealed by a majority vote? 2. What is the proper role of the Rulemaking Clause of the Constitution in analyzing the constitutionality of the Cloture Rule? 3. What place do principles of majority rule have in this constitutional debate? 4. Finally, what is the effect of the anti-entrenchment principle on the Cloture Rule, and in fact on all super-majority voting rules? My position can be summarized in a few simple propositions. First, while the debate is interesting and useful, the argument over the validity of the filibuster or the Cloture Rule is ultimately not constitutional or even legal. Rather it is a policy debate about the functioning of the Senate as an institution, with all its peculiar traditions and rich history. Second, the Cloture Rule, and therefore the filibuster itself, are in fact subject to the will of a simple majority of the Senate at any time. I argue that this is true both as a matter of Senate practice and of constitutional principle. Third, if the Cloture Rule were binding in some legal sense on a simple majority of senators, it would be unconstitutional. I base my constitutional conclusion on the Constitution's inherent majority voting rule for the enactment process, on the Rulemaking Clause in Article I, Section 5, and on the anti-entrenchment principle (which I see as required by the Constitution). In Part II below, I offer some observations on the special place of the Senate in our constitutional structure and on the history, culture and traditions of the upper chamber. This discussion helps to lend context to the controversy over the Cloture Rule and supermajority voting rules generally. " The rule, House Rule XXI, and the scholarly debate it spawned are discussed in Part IV.B infra.

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In Part III, I defend my contention that both the filibuster and the Cloture Rule remain under the parliamentary control of a simple majority of the Senate. In Part IV, I discuss why a binding Cloture Rule (or any binding super-majority voting rule, for that matter), if it existed, would violate the Constitution. II. THE HISTORY AND CULTURE OF THE SENATE

It is virtually impossible to think analytically about the filibuster or the Cloture Rule without understanding the special history and culture of the United States Senate and its tradition of unlimited debate. That tradition is in fact an indispensable characteristic of what is often called "the world's greatest deliberative body." We all learn in our grade school civics classes about the Framers' crucial decision to create a bicameral legislature.12 We also know that the Framers designed two very different legislative chambers for the new United States, modeled loosely on the upper and lower houses of Parliament. They saw the Senate as a body which would protect the interests of the states, particularly the vulnerable small states.13 Its members, in contrast to members of the House of Representatives, would be elected by the state legislatures. The Framers clearly anticipated that the Senate would consist of an elite group of older, experienced politicians, the "wise men" of the day, in contrast to a more populist House. They would serve for longer terms, longer even than the President, and the terms would be staggered to retard change.14 Senators would represent entire states, not smaller geographical areas determined by population, and they would be older and more experienced than House members.15 12

The key decision to create a bicameral legislature, and to require different selection processes for

each chamber, is popularly known as the "Great Compromise" because it assuaged the concerns of the small states in the Philadelphia Convention and facilitated eventual consensus on a constitutional structure. See JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION 57-70 (1996). 13 The Convention debates on the makeup of the Senate are ably summarized in Michael J. Malbin, Congress During the Convention and Ratification, in THE FRAMING AND RATIFICATION OF THE

CONSTITUTION 185-208 (Leonard W. Levy & Dennis J. Mahoney, eds., 1987). The Convention decided that votes in the Senate would be by individual members and not by state, however. U.S. CONST., art. 1, § 3, cl. 1, see I THE RECORDS OF THE FEDERAL CONVENTION OF 1787, 194-95 (Max Farrand ed., rev. ed. 1966) [hereinafter Farrand]. 14 U.S. CONST., art. I, § 3, cl. 1. The Convention formally considered Senate terms as long as nine years. See 1 Farrand, supranote 13, at 418. 15 Compare U.S. CONST., art. I, § 2, cl. 2 (House members must be at least twenty-five years old and citizens of the United States for at least seven years) with U.S. CONST., art. I, § 3, cl. 3 (Senators must be at least thirty years old and citizens of the United States for at least nine years).

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But the Framers intended that the Senate have another vital function in the new government; they expected the second chamber to act as a check on rash or unwise action in the House. During the Philadelphia Convention, Madison argued that the longer terms and greater experience of Senate members would prevent precipitous legislative action. Referring to the people, he noted that "they themselves, as well as a numerous body of Representatives, were liable to err also, from fickleness and passion. A necessary fence [against] this danger would be to select a portion of enlightened citizens, whose limited number, and firmness might seasonably interpose [against] impetuous counsels."'

16

Madison later devoted two of the Federalist essays (Nos. 62 and 63) to the functions and operation of the Senate. There again the notion of a small body of more experienced, wiser men, more insulated from the politics of frequent elections, was clearly articulated: [T]here are particular moments in public affairs, when the people stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow mediated by the people against themselves, until reason, justice and truth, can regain their authority over the public mind? 7 It is not surprising, then, that the Senate developed a very different way of doing business than did the House. From the beginning, the Senate operated like a small club, emphasizing deference to each member, informal rules and personal relationships.' 8 Its small size certainly contributed to that atmosphere. The original Senate, of course, had only twenty-six members; they could (and probably did) talk informally as a group in a boarding house 16

1 Farrand, supra note 13, at 422.

17 JAMES MADISON, WRITINGS 347 (Library of America, Jack N. Rakove ed., 1999) (The Federalist

No. 22). 18 An excellent popular account of the earlier years of the Senate, and its operation up until the election of Lyndon Johnson as Majority Leader, can be found in ROBERT A. CARO, MASTER OF THE SENATE 3-105 (2002). See generally BuRDETT A. LOOMIS, THE CONTEMPORARY CONGRESS 18-32, 179-81

(3d ed. 2000).

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dining room. They were mostly well known to one another, as they represented the political elite of the day. The Old Senate Chamber, restored after being burned in the War of 1812, contained only forty-eight desks and was in use until 1859.19 It is a small room, and viewing it today gives one a feeling for the intimate atmosphere of the early Senate. The Senate had only forty-four members in 1820, sixty in 1850 and seventy-six in 1880. It did not reach 96 until 1912. This small size allowed constant personal interaction among members and encouraged informal ways of doing business. Today, with 100 senators, the members of the majority party can still meet comfortably in a modest-sized room for lunch. Even in modem times, it is difficult to explain the unique atmosphere of the United States Senate to someone who has not worked there or observed it in depth. A number of established practices or traditions give a flavor of that uniqueness. A single senator, for example, can place a "hold" on a piece of legislation or a presidential nomination, effectively blocking action on that piece of business.20 Committee chairs and the floor leadership give extreme deference to the personal schedules of members and by tradition allow any member to introduce amendments on the floor (absent unanimous consent agreements limiting debate). Through something called "senatorial courtesy," members of the majority party from a state must pre-approve presidential nominations from the state. 2 ' Perhaps most importantly, the Senate has no germaneness rule on general legislation, as in the House, so that members can bypass the normal committee process, and defeat the majority's agendasetting efforts, by introducing controversial matters or even whole bills as amendments to pending legislation. 22 Even the Senate's floor recognition traditions are different from those of the House, and do not allow the Chair to restrict recognition on the basis of the requester's purpose. 23 The Senate does have published rules, to be sure, but they are far fewer 19 CARO, supra note 18, at 4. 20 See TIEFER, supra note 1, at 561; WALTER J. OLESZEK, CONGRESSIONAL PROCEDURES AND THE

POLICY PROCESS 206-07 (4th ed. 1996). At some times in the Senate's history, holds have been treated as inviolate, but at other times have operated merely as delaying mechanisms or requirements that a senator be notified before action is taken. In recent years, holds have increasingly been recognized as implicit threats to filibuster.

See RICHARD S. BETH & STANLEY BACH, CONGR. RESEARCH SERV., FILIBUSTERS AND

CLOTURE IN THE SENATE 22-23 (updated Mar. 28, 2003); BARBARA SINCLAIR, UNORTHODOX LAWMAKING: NEW LEGISLATIVE PROCESSES IN THE U.S. CONGRESS 43 (2d ed. 2000). For a useful

discussion of recent obstructionist tactics in the Senate, including the use ofholds, see C. Lawrence Evans and Daniel Lipinski, Obstruction and Leadership in the U.S. Senate, in CONGRESS RECONSIDERED (Lawrence C. Dodd & Bruce I. Oppenheimer eds., 8th ed. 2005).

1 CONGRESSIONAL QUARTERLY'S GUIDE TO CONGRESS 281-82 (5th ed. 2000). supra note 1, at 584; OLESZEK, supra note 20, at 71, 117. 23 TIEFER, supra note 1,at 498; see also OLESZEK, supra note 20, at 232; SINCLAIR, supra note 20, at 21

22 TIEFER,

41; BETH & BACH, supra note 20, at 2-3.

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than those of the House and are often waived or ignored. Professor Tiefer in his treatise on congressional procedure has observed that the Senate often does not follow its rules, preferring to make up individualized procedures by 24 unanimous consent, and follows an extremely flexible daily schedule. In the Senate, as I found during my years as a Committee General Counsel, traditions and parliamentary precedents are much more important than written rules. By contrast, the House developed a very different procedural culture after its first few years. Its much larger size makes tight agenda control and restrictions on floor debate imperative. Over the years the House adopted rules limiting debate and floor amendments, established a powerful Rules Committee to control the agenda and the mechanics of floor deliberation, and followed a strict germaneness rule.25 Even today, House members are usually limited to very short floor speeches. One can imagine the gridlock that would ensue if it were otherwise - each of the 435 members of the House could offer his or her pet amendments at any time, debate them as long as desired, and prevent final action. Of necessity, the House has developed much more more closely. 26 detailed parliamentary rules and follows them much Summing up, Walter Oleszek writes that "House rules are designed to permit a determined majority to work its will. Senate rules, on the other hand, are intended to slow down, or even defer, action on legislation by granting for example) to inordinate parliamentary power (through the filibuster, 27 minorities., individual members and determined Understanding this unique culture helps one to appreciate the special place of extended debate in the Senate. It is an important reinforcing element to the Senate's key roles of slowing down legislation, and of protecting minority views and the interests of the States. Whereas the House may reflect the popular will of the moment, the Senate may force more mature reflection. What better device to slow down precipitous action or force full consideration of the pros and cons of a controversial measure than extended debate? Senator Robert Byrd, perhaps the leading Senate historian and one of its 24 TIEFER, supra note 1,at 467; OLESZEK, supra note 20, at 227; SINCLAIR, supra note 20, at 35. For

an excellent analysis of the legal and constitutional status of congressional rules, see Stanley Bach, The Nature of CongressionalRules, 5 J.L. & POL. 725 (1989) 25 TIEFER, supra note 1,at 47; OLESZEK, supranote 20, at 26-27, 266-67. Interestingly, Binder and Smith point out that the early rules of the House and Senate were quite similar, and that both allowed for unlimited debate. BINDER & SMITH, supra note 1,at 34. 26 Though it may change its way of doing business at any time, as I will argue in Part III, infra. As Stanley Bach has pointed out, the different approaches taken by the House and Senate to following rules are entirely voluntary, the result of different traditions and culture. See Bach, supra note 24. See also LOOMIS, supranote 18, at 171. 27 OLESZEK, supra note 20, at 27.

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greatest parliamentary experts, went so far as to write that "the right of extended, and even unlimited, debate is the main cornerstone of the Senate's uniqueness. It is also a primary reason that the United States Senate is the most powerful upper chamber in the world today." 28 This is not the place to recite the history of extended debate in the Senate, which has been ably done by historians, political scientists and legal scholars. 29 The main elements of that history seem clear. The body functioned quite well with no limits on debate for some years, though occasionally it had to tolerate lengthy debate on some measure, as the Framers evidently intended. The majority, if it felt strongly enough, simply waited out the minority to get its way or used other parliamentary devices to move to a vote.30 The first real "filibusters," in which members attempted to defeat a measure entirely by extending debate until the other side gave in, did not occur until the mid-nineteenth century. Tiefer dates the first successful filibuster to the defeat of the Force Bill in 1890-91.3 As Seitz and Guerra point out, the first effort to limit the filibuster by adopting a rule to allow a super-majority of the Senate to end debate did not come until 1917, more than 125 years after the first Congress convened.32 Generally, senators exercised considerable restraint in exploiting the tradition of unlimited debate even after 1917.33 For much of its history, members used the filibuster only on sectional issues, most notably to block civil rights legislation, and thus did not threaten the routine functioning of the Senate. Liberals discovered the filibuster in the 1970's, followed by non-southern conservatives. The landscape has changed significantly in recent years, and today the threat of filibuster is a common occurrence.34 28 29

BYRD, supra note I, at 162. An excellent compilation of Senate materials, without analysis, is presented in CONGRESSIONAL

RESEARCH SERVICEfor SENATE COMM. ON RULES AND ADMIN., 99TH CONG., SENATE CLOTURE RULE: LIMITATION OF DEBATE IN THE CONGRESS OF THE UNITED STATES AND LEGISLATIVE HISTORY OF

PARAGRAPH 2 OF RULE XXII OF THE STANDING RULES OF THE UNITED STATES SENATE (CLOTURE RULE)

(Comm. Print 1985) [hereinafter SENATE CLOTURE RULE]. 30 Political scientists Binder and Smith sum up the Senate's early period this way: "Their actions show that they were aiming for nothing more than a simple majority, perhaps through a motion to postpone, to stem debate." BINDER& SMITH, supranote 1,at 39. 31 TIEFER, supra note 1,at 694; SENATE CLOTURE RULE, supranote 29, at 15. 32 Seitz and Guerra, supra note 5, at 10; SENATE CLOTURE RULE, supra note 29, at 17, 105-07. 33 Barbara Sinclair discusses periods in the Senate's history in which members did not actively assert their rights to unlimited debate, like the 1950's: "Senate rules then as now allowed unlimited debate and, in most cases, unlimited amending activity. The restraint that characterized the Senate of that period was not a function of rules; rather it depended on norms -unwritten rules ofbehavior- and on a political environment in which acting with restraint was relatively costless to Senators." SINCLAIR, supra note 20, at 83. 34 Fisk and Chemerinsky, supra note 1,at 200-209; SINCLAIR, supra note 20, at 54 (noting that an average of fifty cloture votes per Congress have taken place in recent years). Binder and Smith argue in their excellent book on the filibuster that in light of modem developments significant reforms are needed to control overuse of the tactic and to improve the Senate's effectiveness. BINDER & SMITH, supra note 1,at

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This short discussion of the Senate's history and traditions shows that the filibuster and the Cloture Rule are not simply parliamentary aberrations, but fundamental elements of the Senate's operation. Both the filibuster and the Cloture Rule present two different faces, depending on one's perspective. The filibuster, of course, is not a rule, but more accurately the absence of rules limiting debate. It can be seen as a practice enabling a small minority to block passage of legislation favored by a substantial majority of senators, obstructing the will of the people's representatives. But it can also be characterized as a bulwark of minority rights and small state interests, and a protection against the hysteria or misguidedness of a temporary majority. Likewise the Cloture Rule can be viewed as a limitation on the tradition of extended debate, and thus as a promoter of democratic values. But to the advocate of simple majority rule, the Rule imposes supermajority voting requirements on the Senate in defiance of those values. In truth, the filibuster and the Cloture Rule are symbiotic and represent the Senate's deep ambivalence about its extended debate tradition. In each era, senators have recognized both the value and the curse of the filibuster. Senators sometimes see the filibuster as blocking their favorite legislation, but they can also anticipate situations in which they themselves might like to use it. The modem Cloture Rule, putting aside constitutional arguments for the moment, stakes out a middle ground, allowing some filibusters but also permitting debate to be closed by sixty members. As Senator Byrd put it, "Filibusters are a necessary evil, which must be tolerated lest the Senate lose its special ' 35 Representatives. " strength and become a mere appendage of the House of III. BOTH THE FILIBUSTER AND THE CLOTURE RULE MAY BE MODIFIED OR ELIMINATED BY A SIMPLE MAJORITY OF THE SENATE

A. Background Members of the Senate and scholars of the political process have long argued over the wisdom and utility of the filibuster itself, and the Cloture 36 Rule which simultaneously enforces the filibuster and limits it. That policy argument is beyond the scope of this article. Legal scholars have also debated 37 the constitutionality of both the filibuster and the Cloture Rule. Curiously, though, the scholarly writing has assumed that the Cloture Rule is binding on the Senate in some legal sense, apart from the effects of tradition and culture. 209-17. 35 BYRD, supra note 1, at 163. 36

37

See supra note I and authorities cited. id.

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Commentators such as Seitz and Guerra, and Fisk and Chemerinsky, while taking very different positions generally, assume that the rule is binding and proceed to analyze its constitutionality under that assumption. In this section I argue that the entire constitutional debate on the Cloture Rule may well be beside the point. If a simple majority of the Senate may abolish the filibuster and has the power to modify or repeal the Cloture Rule at any time, then the constitutional problems simply disappear. Assertions that the Constitution's Rulemaking Clause, the principle of majority rule, or the prohibition on legislative entrenchment, are violated have no force if the Senate is not in fact restrained in some binding way by the filibuster and the Cloture Rule. The case may not be wholly free from doubt, but convincing arguments can be made for the proposition that a simple majority of Senators can exert and has in fact exerted parliamentary control over the filibuster and the Cloture Rule. While it has not always chosen to do so, I contend that a simple majority of the Senate has ample power to eliminate both. If I am correct, then the constitutional arguments fall away, and we are left with other bases for the filibuster and the Cloture Rule - namely tradition, culture and perceived self-interest. B. DirectSenate Action to Limit Debate The first Congress in 1789 had the undoubted constitutional power to adopt rules governing the enactment process, including rules for floor debate. It is important to recognize that both houses could at that initial point have adopted rules limiting debate by simple majority vote, pursuant to their power to control their own Rules of Proceedings.38 Neither did so, at least explicitly. In order to accept the position asserted by Seitz and Guerra, that rules requiring a supermajority to end debate are both binding and constitutional, one has to accept a startling proposition. That is, the very first Congress could have adopted a binding rule that future rule changes could not be made at all. Since there is no analytical difference between sixty percent, twothirds, three-fourths or 100 percent, they must concede that the first Congress could have forever prevented future changes in the rules and prevented any limitation on debate. For reasons explored in Part IV, I argue that such an action would have been unconstitutional for a variety of reasons. In any case, it would surely have been ignored by future congresses. 39 But if the first Congress had the unfettered power under the new Constitution to adopt by a 38 U. S. CONST., art. I, § 5, cl. 1. The Rulemaking Clause, as I call it for convenience, is explored in more depth in Part IV. C. infra. 39 Moreover, as I show in Part IV, C.2. infra, it is highly unlikely that a federal court would intervene to enforce such a "binding" rule.

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simple majority any rule of debate it desired, when and how did it lose that power? Why does it not still have that power today? Indeed, I argue below that it does. Since extended debate to defeat entirely a motion or substantive measure was not used for the first sixty years of Congress, it is difficult to draw clear lessons regarding the assertion of majority control over debate from the early precedents. 40 There is a strong scholarly case to be made that the Senate used the device of the motion for the previous question in its early years to end debate by majority vote.41 We know that the House in the nineteenth century adopted ever stricter rules governing debate, gradually becoming a strict majority-rule chamber.42 How, we might ask, does the House possess the constitutional power to limit debate by simple majority vote, and yet the Senate not have that same power? The fact that the Senate did not always choose to assert the power is beside the point. Likewise, no one argued in 1917 when the Senate's first Cloture Rule was adopted that any supermajority was need for passage. Quite the contrary; prominent members of the Senate argued at the time that limits on debate could always be adopted by a simple majority.4 3 By inference, of course, they could be repealed or amended by the same simple majority. While many by 1917 wanted to abolish the filibuster altogether, they settled on a two-thirds Cloture Rule. 44 Modifications in the Cloture Rule were occasionally made after 1917, notably closing a major loophole to apply cloture to debate on procedural motions as well as final passage in 1949. 4 ' Again, a supermajority was not 40

I discuss this history in greater depth in Part IV.A infra. Extensive materials were inserted into the

41 Fisk & Chemerinsky, supra note 1, at 188.

Congressional Record by Senator Paul Douglas in January 1961 during one of the intense debates over changing the Cloture Rule. Most notable is a series of letters and memoranda by Madison biographer Irving Brant analyzing congressional and parliamentary practice and asserting that the motion for the previous question had allowed a majority to limit debate. 107 CONG. REc. 241-56(1961). Senator Russell, a key opponent of cloture reform, later inserted a scholarly study by Joseph Cooper into the Congressional Record that arrived at the opposite conclusion. RICHARD B. RUSSELL, THE PREVIOUS QUESTION: ITS STANDING AS A PRECEDENT FOR CLOTURE IN THE UNITED STATES SENATE, SEN. DOC. 104 (1962). 42 Congressional scholar Barbara Sinclair points out that the House had no formal limitations on debate in its early years, and adopted the first real restriction in 1811. The highly restrictive Rules Committee process familiar to us today did not emerge until the 1880's. SINCLAIR, supra note 20, at 5-6. See also TIEFER, supra note I, at 253-56. 43 BRIEF IN SUPPORT OF PROPOSITION THAT AMAJORITY OF THE SENATE HAS THE POWER TO AMEND ITS RULES AT THE BEGINNING OF ANEW CONGRESS, 107 CONG. REC. 232,237 (1961) [hereinafter BRIEF OF SIX SENATORS] (citing statement of Senator Walsh). The brief, presented by Senator Paul Douglas and signed by Douglas, Hubert Humphrey, Thomas Kuchel, Jacob Javits, Joseph Clark, and Clifford Case, was part of the 1961 fight over the rules. 4 Id. See also SENATE CLOTURE RULE, supra note 29, at 105-07. Binder and Smith conclude that a majority in 1917 actually favored majority cloture, but compromised for larger political reasons. BINDER & SMITH, supra note I, at 79. 45 TIEFER, supra note 1, at 702; Fisk & Chemerinsky, supra note 1, at 198-99; SENATE CLOTURE

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required to adopt that change, though in 1949 for the first time the Senate explicitly adopted a rule requiring a super-majority to end debate on a change in the rules.46 That had the effect of further entrenching the Cloture Rule and making future change more difficult. That 1949 corollary to the main Cloture Rule soon became the main focus of controversy. The question whether a simple majority of senators could change the rules, and thus exert control over both the Cloture Rule and the filibuster itself, became the subject of intense debate between traditionalists and reformers beginning in the 1950's. In 1953, 1957, 1959, 1961, 1963 and 1967, organized efforts were made at the beginning of a congress to assert the principle of majority rule. Each time a majority of senators failed to support the reformers, though Vice Presidents Nixon and Humphrey delivered nonbinding opinions from the Chair that the Rulemaking Clause of the Constitution ensured the right of each successive Senate to change its rules by a simple majority. 47 A majority of senators were apparently not persuaded that the existing balance between filibuster and cloture was not in their ultimate best interest. The cloture question at this point in our history was intimately tied to the battle over civil rights legislation, and thus received considerable public attention. In the election campaign of 1960, for example, the platforms of both parties endorsed changes in the Cloture Rule to allow majority rule.4 8 The Senate finally reasserted its original majority rule power in 1975. Again aided by a sympathetic Vice President (presiding over the Senate) willing to make favorable parliamentary rulings, and by a cooperative majority leader, the reformers obtained a ruling from the Chair that debate on a rule change at the beginning of a new congress could be closed by a simple majority. In a historic moment, the ruling was upheld by vote of 51-42, effectively deciding that cloture could be invoked by a simple majority. 49 The RULE, supra note 29, at 21, 109-12. 46

Id.

47 TIEFER, supra note 1,at 702; SENATE CLOTURE RULE, supra note 29, at 22-26; BINDER & SMITH,

supranote 1, at 168-76. Some reformers, then as now, argue that changes in the Senate's rules by a simple majority can only take place at the beginning of a new congress, while others argue that the power can be exercised at any time. See BRIEF OF SIX SENATORS, supra note 43, at 232-33. For purposes of this article the difference is not critical, though I argue that the majority may exercise its authority at any time. The "continuous power" interpretation of the Rulemaking Clause seems the most obvious one, particularly since the division into two-year "congresses" is not based on any constitutional requirement, but rather was created for legislative convenience. On the practical side, the need for legislators to adapt rules to new economic or political realities can arise during a congress as well as between congresses. On a few occasions, control has even changed hands between elections, and the principle underlying the Rulemaking Clause would seem to require majority control over rules at that time. See infra Part IV.C. 48

BRIEF OF SIX SENATORS, supra note 43, at 232-33.

49 TIEFER,

supra note 1, at 702-06; SENATE CLOTURE RULE, supra note 29, at 31, 120. Reinforcing

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majority, having established its constitutional authority, could have at that point adopted sweeping rules changes to eliminate the filibuster, but it shrank from any such radical action. 50 Perhaps realizing that the filibuster in some form might some day be of parliamentary value to them as well, the liberals pursued the more modest goal of loosening the Cloture Rule to make it easier to invoke while not destroying the Senate's long tradition of extended debate. Though the vote stood for two weeks, traditionalists and reformers worked behind the scenes and finally presented to the Senate a compromise package reducing the required cloture vote from two-thirds of those present to sixty percent of those elected and serving. As part of the compromise, the reformers agreed to reconsider the historic 51-42 vote asserting simple majority rule, and reversed it. 5' Senator Robert Byrd, the Senate's leading procedural expert, noted at the time that though the Senate might attempt to cover its procedural tracks it would now be clear to members and historians 52 alike that a simple majority had the power to change the rules. As Professor Tiefer has expressed it, the reconsideration vote was a face-saving device to 53 preserve the Senate's traditions, but "the Rubicon had been crossed. In 1979, Majority Leader Byrd proposed changes to the Cloture Rule to prevent the post-cloture tactics of Senator James Allen and others, who had used multiple amendments and other maneuvers to draw out debate indefinitely even after cloture had been invoked. In discussing his proposals for changes to the rules, he reminded Senators that the principle of majority control over the rules at the beginning of a new congress had been established 54 in 1975 and succeeded in discouraging a filibuster of the rules proposals. Given the events of 1975, there is no reason why the current Senate, or any future Senate, could not again assert its control over the filibuster or the Cloture Rule by simple majority vote. It would not be easy, given the strength of the Senate's tradition, its recognition of the value of the filibuster across the political and ideological spectrum, and the normal reluctance of any long-standing institution to adopt radical changes. The fact that a majority of the current Senate cannot bring itself to change the rules, even though it opposes the use of the filibuster against presidential nominations, is my point, there was actually a second majority vote confirming the first several days later. SENATE CLOTURE RULE, supra note 29, at 120.

so Binder and Smith conclude that "[c]learly, a majority of senators favored an interpretation of the Constitution and Senate Rules that would have permitted a simple majority to close debate on new rules at the beginning of a Congress." BINDER& SMITH, supranote 1, at 182. SI

Id.

121 CONG. REC. 5243, 5249 (1975). For more on this episode, see BYRD, supranote 1,at 131-33. 53 TIEFER, supra note 1, at 705. 32

54 SENATE CLOTURE RULE, supra note 29, at 125.

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a testament to the Senate's resistance to change and not proof of a lack of power to do so. C. Indirect Changes in the Rules - "FastTrack" Legislation As we have seen, the Senate demonstrated in 1975 that it can, by simple majority vote, modify or repeal the Cloture Rule directly. The persistence of ultimate majority control that I argue for is further illustrated by the increasingly common practice of limiting debate, and effectively amending the Cloture Rule, by means of ordinary legislation. Thus, without changing the Cloture Rule and without complying with the provision of the Cloture Rule that requires a two-thirds majority to cut off debate on a rules change, the Senate indirectly alters its debate rules for certain kinds of issues. As the filibuster, and the threat of its use, have become much more common in the last thirty years, Congress has passed a number of laws that explicitly limit debate in future congresses on certain defined legislative actions. Most prominent of the these are the long-standing provisions in the Budget Act55 and in Fast Track Trade Legislation,56 but there are many others, including the recent mechanism for reviewing agency rules in the Congressional Review Act. 57 These provisions, ably summarized and analyzed by Aaron-Andrew Bruhl,5 8 have a common theme. They attempt to assure prompt action on a legislative issue viewed by the Senate and the House as especially important and especially vulnerable to the filibuster. They accomplish this by explicit changes to various procedural rules, by overall limits on debate, or by restricting amendments. 59 For the Senate, that often means indirect modifications to the Cloture Rule. The use of these laws to limit or eliminate the threat of a filibuster was analyzed in depth by Professor Tiefer in the context of three controversial legislative actions in 2001 - enactment of the President's massive tax cut, renewal of the President's "fast track" trade authority, and disapproval of the Clinton Administration's workplace ergonomics rule through the Congressional Review Act process. 60 Professor Tiefer points out that none of "' See 2 U.S.C. §§ 636(b), 641(e) (2000). 56 See 19 U.S.C. § 2191 (2000), and see especially § 2191(g) on Senate rules. " See 5 U.S.C. §§ 801-808 (2000), and see especially 802 (c) and (d) on Senate procedures. 58 Aaron-Andrew Bruhl, Using Statutes to Set Legislative Rules: Entrenchment, Separation of Powers, and the Rules ofProceedingsClause, 19 J.L. & POL. 345 (2003). For a list of the most important of these provisions, see id. at 346 n.9. 59 See, e.g., 5 U.S.C. § 912 (2000) (Executive Reorganization); 2 U.S.C. § 636 (b) (2000) (Budget Resolutions). 60 Charles Tiefer, How to Steal a Trillion: the Uses ofLaws About Lawmaking in 2001, 17 J.L. & POL. 409 (2001).

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these measures commanded the sixty votes necessary to cut off debate under the Cloture Rule, and yet all avoided the filibuster because the Senate complied6 1 with special rules governing debate embodied in the relevant statutes. The battle over President Bush's tax cut is especially revealing because it involves the most important debate-limiting statute yet passed by the Congress: the provision of the Budget Act that exempts reconciliation bills 62 from the Senate Cloture Rule. By the very controversial route of declaring the tax cut to be part of a reconciliation bill, the Republican leadership in the Senate was able to pass it by simple majority vote despite a 50-50 split in that 63 body and to prevent the otherwise inevitable filibuster. I should hasten to add that under my view of the Constitution, these laws about lawmaking are not binding on future congresses and can be modified or ignored at any time. 64 Some contain a standard disclaimer preserving the power of each future House and Senate to change them under the Rulemaking any Clause of the Constitution, but its inclusion does not seem to make 65 Not limits. debate the respect to choose difference in whether the chambers 66 provisions when it suits them surprisingly, both houses ignore many of these (though the rules on reconciliation bills have surprising staying power). It also follows from the arguments made in this article that if these fast-track provisions limiting future debate were binding in some legal sense, they would be unconstitutional. The fact that any debate-limiting provisions can be changed or ignored at any time does not make them useless, of course. As Professor Tiefer demonstrates, they represent Congress's effort to discipline itself, and exert power because they serve a useful purpose and not because they are legally or constitutionally binding. The implication of these debate-limiting statutes for our argument is straightforward. It can only be possible for Congress to pass statutes that 61

Id. at 410-20.

Scholarly commentary on these provisions of the Budget Act is immense. See, e.g., Kate Stith, Rewriting the Fiscal Constitution: The Case of Gramm-Rudman-Hollings,76 CAL. L. REV. 593 (1988); Elizabeth Garrett, The CongressionalBudget Process: Strengthening the Party-In-Government, 100 62

(2000); COLUM. L. REV. 702 (2000); ALLEN SCHICK, THE FEDERAL BUDGET: POLITICS, POLICY, PROCESS

Fisk & Chemerinsky, supra note 1, at 215. 63 Tiefer, supra note 60, at 425-57. Professor Tiefer points out that interpreting the Budget Act to include tax cuts within the definition of a reconciliation bill was so controversial that it resulted in the firing of the widely respected Parliamentarian of the Senate, who was viewed by Republicans as insufficiently committed to their interpretation of the Budget Act's rules. Id. at 440. More broadly, Tiefer quotes political scientist Keith Krehbiel to the effect that use of this device prevented filibusters in the 1981 and 1993 budget processes as well, when simple majorities were able to work their will. Id. at 432-33. See infra Part IV. ' 65 See Bruhl, supra note 58, at 363-69, nn.79-80. 6

Id. at 366.

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have the practical effect of limiting debate on certain kinds of measures (without the Senate amending its rules as would otherwise seem to be required) if the House and Senate continue to have the power to limit debate by a simple majority vote. The very existence of these fast-track statutes shows that the Senate majority not only retains its power over the rules of debate, but that it has increasingly been exercising that power. It has done so by the indirect route of limiting debate on certain kinds of substantive measures, rather than by changing its rules. Again, this demonstrates the fundamental ambivalence that Senators feel about the filibuster and the Cloture Rule - on the one hand wanting to limit debate and on the other hand wanting to preserve the Senate's venerable tradition of free and unlimited discussion of floor business. One could easily imagine a broader kind of fasttrack statute - say, covering all appropriations bills or all conference reports that would be very close in practical effect to an actual amendment of the Cloture Rule. Of course the broader such bills were, the more resistence they would face in the Senate for that very reason. Nonetheless, the logic is clear. Each fast-track bill is in effect an amendment to or waiver of the Cloture Rule for certain kinds of substantive measures, but accomplished by simple majority vote. IV. A BINDING CLOTURE RULE WOULD VIOLATE BOTH THE LETTER AND SPIRIT OF THE CONSTITUTION

Let us assume now that the preceding argument is wrong, and that the Senate Cloture Rule is binding in the legal sense - that each succeeding group of senators is somehow required to follow its supermajority voting requirements. I argue in this section that such a rule, and indeed any binding supermajority voting rule, would be unconstitutional. A. The Relevance of the Senate's ParliamentaryHistory Initially, we must dispose of an argument that Virginia Seitz and Joseph Guerra rely on heavily in their analysis of the Cloture Rule - namely, that the Senate's use of the Cloture Rule over its history creates a strong presumption of constitutionality, which must be overcome by strong textual evidence in the Constitution itself.67 If indeed the Senate had a clear and unbroken history of support for the constitutional appropriateness of the Cloture Rule, that argument might have some force, though it did not prevent the Supreme Court 67

See Sietz & Guerra, supra note 5, at 7-15. I would also point out that the arguments in Part IV show

strong textual support sufficient to overcome any presumption from past practice in any case.

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68 from rejecting the legislative veto in Chadha. As we shall see, however, the Senate's attitude about cloture rules shows no such consistency. Read fairly, the history of the Senate's efforts to limit debate reveals as much indifference or opposition than support for the constitutionality of such rules. As Fisk and Chemerinsky have shown, the use of the filibuster has changed significantly over time, making generalizations about the Senate's attitude difficult. 69 From 1789 until 1806, it can be argued that the Senate indirectly endorsed majority voting control over debate, since there was a 70 motion for the previous question in Senate Rules. As Barbara Sinclair, Charles Tiefer and others have noted, there was little use of extended debate to block legislative action during the next fifty years, so it is certainly hard to argue that the Senate supported the constitutionality of supermajority voting to end debate. 7 ' It simply was not a burning issue up to the 1860s, as senators managed to deal with occasional uses of extended debate without any special parliamentary devices to end it. During the second half of the nineteenth century, as filibusters to block legislation became a reality, the Senate struggled with the cloture issue but never adopted any supermajority voting rule to end debate. Despite Seitz and Guerra's assertion of consistent support over time for the constitutionality of supermajority cloture, it is hard to make that argument for this period. A fairer interpretation of the historical record would be that Congress was deeply divided both on the wisdom and the constitutionality of limiting debate by a supermajority.72 The first supermajority rule to limit debate in the Senate was not adopted until 1917. After a brief flurry in its first ten years of existence, the new 73 Cloture Rule was not used again until 1964. Filibusters were not seen as a general threat to legislation during this period, and were not often used, 74 except against civil rights legislation. The Senate, then, had little occasion

68

Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983).

69 Fisk & Chemerinsky, supra note 1,at 209-14.

See note 41 supra. In his study of the Senate's early years, Roy Swanstrom found no evidence of SENATE, parliamentary devices designed specifically to limit debate. Roy Swanstrom, THE UNITED STATES 1787-1801, S. Doc. No. 99-19, at 210-13 (1985). 71 SINCLAIR, supra note 20, at 6; TIEFER, supra note 1,at 693. 72 Binder and Smith's study argues that many in the Senate realized the need for limiting filibusters in some see as a the second half of the nineteenth century, but were unable to accomplish change. "What reformers to Senate of inability the reflected largely Senate the of character desired the about consensus senators "great" nineteen of list a develop They 78. at I, note supra change the rules." BINDER & SMITH, cloture. Id. at during the nineteenth century, and conclude that a preponderance of them favored majority 70-74. 73 TIEFER, supra note 1,at 696-98. 74 See BINDER & SMITH, supra note 1, at 85-86. 70

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to debate the constitutionality of the practice. Whatever consensus that may have existed in the Senate about the 1917 Cloture Rule was surely shattered beginning in the 1950s. Our best accounts of this later period, such as the study done by the Congressional Research Service7 5 and Senator Byrd's history of the Senate,76 show that the constitutionality of supermajority cloture was under almost constant assault from 1950 on. Many prominent senators, and several Vice Presidents sitting as presiding officers, expressed the view that a majority could end debate." Moreover, the fact that these efforts did not succeed until 1975 cannot necessarily be ascribed to the fact that a majority of the Senate believed supermajority cloture was constitutional. As Fisk and Chemerinsky have pointed out, the reluctance of a majority to uphold Chair rulings to that effect in 1957 and 1969 may be due as much to ambivalence about the usefulness of the filibuster, and to a growing feeling among liberals (who were pushing for majority cloture) that the filibuster might be useful to them in the future.78 Clearly, senators were not unified in their support of supermajority cloture, as Seitz and Guerra would have us believe. A more accurate view would be that expressed by Majority Leader Lyndon Johnson as he introduced a resolution for modification of the Cloture Rule in 1959: Some believe that rule XXII of the Standing Rules of the Senate should be changed drastically. Some feel it should not be changed at all. Others among us feel that a constructive measure of responsibility can be added to the rule without a nonconstructive sacrifice of old standards of free debate.79 In any case, after 1975 it is extremely difficult to argue that a majority of Senators support the constitutionality of supermajority cloture. As we have seen, not once but twice did a majority assert the principle of majority cloture, 80 and the argument supporting its position was explicitly a constitutional one. While the majority did not press its advantage, out of its conflicting attitudes toward cloture, its power had been established. Even today, a majority of the 75 SENATE CLOTURE RULE, supra note 29, at 21-35. A majority of senators actually voted with the liberals seeking to establish the principle of majority cloture in 1964, though they eventually lost the parliamentary battle on that occasion. Id. at 26. 76 BYRD, supra note 1, at 128-32. 77 Id. at 127-32. 78 Fisk & Chemerinsky, supra note 1, at 212. 79 105 CONG. REc. 8 (1959).

go See supra Part 1II.B.

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Senate may well believe that the Cloture Rule's application to debate on nominations is unconstitutional, though it is unwilling to press the principle of majority rule. In summary, whatever force Senate practice may have in the constitutional debate is severely limited by a more nuanced understanding of its history. Its very earliest precedents show no support for supermajority cloture. The middle period shows growing anxiety over unlimited debate but unwillingness to impose supermajority cloture. One might argue that Senate practice from 1917 to 1950 endorsed the constitutionality of supermajority cloture, but that consensus gave way to almost constant parliamentary warfare culminating in a victory for majority rule in 1975. Since that time, I would argue that the Senate's tolerance for supermajority cloture shows not a constitutional consensus but a cultural one based on the traditions and values of the chamber. B. The Impact of Majority Rule Principles In considering the constitutionality of devices like the Senate Cloture Rule, which prevents (assuming, again, that it is binding) a simple majority from closing debate and moving to a final vote, it is tempting to argue that the democratic principle of majority rule decides the question. Adoption by the Republican House in 1995 of a rule requiring a three-fifths vote for future tax rate increases touched off a lengthy and interesting scholarly debate on this very question. 8' For those of us who might have thought that violation of majority rule principles was a clear justification for rejecting a binding Cloture Rule, the result was sobering. Majority rule in a republican government turns out to be a surprisingly complicated concept. As we shall see, only when one combines majority rule principles with two other key 81 See Comment, An Open Letter to Congressman Gingrich, 104 YALE L.J. 1539 (1995) (arguing that the supermajority rule is unconstitutional). The open letter was signed by seventeen distinguished law professors. For a reply, see John 0. McGinnis & Michael B. Rappaport, The Constitutionality of Legislative Supermajority Requirements: A Defense, 105 YALE L.J. 483 (1995) (arguing that the supermajority rule is constitutional because it can be waived by a simple majority of the House). The debate was continued in Jed Rubenfeld, Rights ofPassage:Majority Rule in Congress, 46 DUKE L.J. 73 (1996) and John 0. McGinnis & Michael B. Rappaport, The Rights of Legislators and the Wrongs of Interpretation:A FurtherDefense of the ConstitutionalityofLegislative SupermajorityRules, 47 DUKE L.J. 327 (1997). Other useful contributions are found in Neals-Erik William Delker, The House Three-Fifths Tax Rule: Majority Rule, the Framers'Intent, and the Judiciary'sRole, 100 DICK. L. REV. 341 (1996); Brett W. King, Deconstructing Gordon and Contingent Legislative Authority: The Constitutionalityof LegislativeSupermajorityRules, 6 U. Cm. L. SCH. ROUNDTABLE 133 (1999); and Robert S. Leach, House Rule XXI and an Argument Against a ConstitutionalRequirementfor MajorityRule in Congress,44 UCLA L. REv. 1253 (1997). Of course the general question of the centrality of majority rule in a democratic society was not a new one in 1995, but has been a topic of dispute among political philosophers for several hundred years.

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concepts - the constitutional rulemaking power and the anti-entrenchment principle - can the serious student of this issue feel comfortable in concluding that a binding Cloture Rule and rules like it would violate the Constitution. We all feel intuitively that there is some bedrock notion of majority rule at the core of American governmental institutions. After all, just about any committee, board or other decision-making body operates on the assumption that a simple majority of those present decides disputed questions. For governmental bodies, it seems implicit in the idea of popular sovereignty, and in the rule of one-person-one-vote, that simple majorities should prevail. But such overall generalizations are actually of little help in resolving the more specific question that needs to be answered here. Namely, do principles of majority rule render unconstitutional binding supermajority rules of debate in the U.S. Senate? Seitz and Guerra dismiss the argument from rule majority principles largely on the basis of other counter-majoritarian elements in the Constitution.82 It is quite true that the Constitution as a whole does not follow a consistent principle of majority rule. The Framers met in Philadelphia to replace an inefficient and ineffective national government under the Articles of Confederation with a stronger, better functioning structure. They were practical politicians, and their handiwork reveals few consistent theoretical principles. The Constitution they adopted contained many profoundly undemocratic features, as Robert Dahl has pointed out in a recent provocative book.83 The presidential veto, the creation of a Senate representing large and small states equally, the method of counting slaves for purposes of representation in the House, the Electoral College and many other constitutional provisions belie the notion that the Framers always followed majority rule principles. The Framers had political problems to contend with, given that the Constitution would be submitted to the states for ratification, and they had a profound suspicion of untrammeled majority rule. 84 The lateradopted Bill of Rights, insisted upon by the people during the ratification struggle, shows clearly that some rights were to be insulated from pure majority rule. Aside from specific undemocratic features of the Constitution, we must 82

Seitz & Guerra, supra note 5, at 18-22. They also reject the argument by implication from other

specific supermajority rules in the text. 83

ROBERT A. DAHL, How DEMOCRATIC IS THE AMERICAN CONSTITUTION? (2001).

The Framers were well aware of the excesses of majority rule in some of the state legislatures, and partly out of distrust for those bodies they decided that the new Constitution should be ratified by special state conventions, not by state legislatures. See John C. Roberts & Erwin Chemerinsky, Entrenchment of OrdinaryLegislation: A Reply to ProfessorsPosner and Vermuele. 91 CAL. L. REv. 1773, 1802 (2003). 84

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also acknowledge that Congress has developed a number of profoundly undemocratic structures, procedures and traditions like the committee system, legislative holds, and the like, and that we have come to accept them as a part of our legislative system. Commentators have also argued that the existence rule, of these practices shows that there is no underlying principle of majority way.85 their get to majorities for difficult it make to since they all work But pointing out that the Constitution contains anti-majoritarian elements does not prove that it contains no majoritarian ones. It only demonstrates that we have a mixed legislative model. Since the Framers were creating a working government, they may well have wanted simple majority voting rules even though they adopted other undemocratic structures. Commentators like Seitz and Guerra who place too much emphasis on the non-majoritarian parts of the Constitution, or for that matter on nonmajoritarian legislative practices, try to prove too much with that argument. We must look for other more probative evidence on the specific issue we are addressing, the matter of voting rules on the floor of the House and Senate. We may first ask whether at the time the Constitution was conceived and adopted there were any generally accepted principles of floor voting in legislative bodies, since there are points in the analysis when a default or background principle can be helpful in resolving ambiguities. Most authorities appear to agree that majority voting was the accepted norm in legislative bodies of the day. 86 It seems to have been the rule in the English Parliament, upon which our national legislature was modeled. Jefferson's Manual, written by Thomas Jefferson while presiding over the Senate as Vice President and reflecting his understanding of the general practice of the day, 87 describes majority voting as the norm. I have seen nothing in the scholarly evidence to contradict the notion that the early House and Senate operated under majority rule.88 The Supreme Court declared, in its most important case 85 See Eric A. Posner & Adrian Vermeule, LegislativeEntrenchment: A Reappraisal, Il1 YALE L.J. 1665 (2002). " See, e.g., Rubenfeld, supra note 81, at 77; King, supra note 81, at 181-82 and n.224 (citing authorities). 87 See CONSTITUTION, JEFFERSON'S MANUAL AND RULES OF THE HOUSE OF REPRESENTATIVES (1797), H.R. Doc. No. 107-284, at 266 (2003) ("[t]he voice of the majority decides, for the lex majoris partis is the law of all councils, elections, &c., where not otherwise expressly provided.") [hereinafter HOUSE MANUAL]. Today's parliamentary experts agree. See WILLIAM HOLMES BROWN & CHARLES W. JOHNSON, HOUSE PRACTICE A GUIDE TO RULES, PRECEDENTS AND PROCEDURES OF THE HOUSE 935

(Gov't Printing Office 2003) (referring to majority voting as a "fundamental precept of parliamentary law"); FLOYD M. RIDDICK & ALAN S. FRUMIN, RIDDICK'S SENATE PROCEDURE, PRECEDENTS AND

PRACTICES, S. DOC. NO. 101-28, at 912 (Alan S. Frumin ed. 1992) (Senate precedent "uniform" in recognizing simple majority voting unless otherwise specified by Senate rules). 88 Binder and Smith came to the same conclusion. BINDER & SMITH, supra note 1,at 51 ("[S]enators assumed that approval of legislation would require no more than a simple majority vote. There is no

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on the Rulemaking Clause, that The general rule of all parliamentary bodies is that, when a quorum is present, the act of a majority of the quorum is the act of the body. This has been the rule for all time, except so far as in a given case the terms of the organic act under which the body is assembled have prescribed specific limitations.8 9 Thus we can say with some confidence that there was a general background principle in English and American parliamentary bodies that majority rule should prevail. That, of course, does not prove that the general principle was written into the Constitution by the 1787 Convention, or that it covered every possible type of vote. We must turn then to the text of the Constitution itself. Over the last ten years, commentators have argued at length over the meaning of the relevant provisions of the Constitution relating to voting. 90 While the arguments for the primacy of some sort of majority rule convince me, they are certainly not free from doubt. We know that the Framers included a few specific instances in which greater-than-majority votes are required for certain purposes - e.g., approving amendments to the Constitution, overriding a presidential veto, expelling a member, conviction after impeachment, and the like. 9 1 We can also plainly see that the Framers adopted no voting rules at all for normal legislative business, whether procedural or substantive. The text of Article I simply requires that bills be "passed. 92 Furthermore, during the Constitutional Convention the Framers considered and rejected proposals to require supermajority votes for two types of substantive legislation, dealing with commerce and navigation. 93 What implication can we draw from these facts? Does the fact that almost all of the Constitution's required supermajority votes deal with critical aspects of checks and balances, coupled with the absence of normal floor voting rules, imply that all votes on daily evidence that supermajorities were envisioned by the framers nor demanded by the first senators in order to ensure that the Senate could temper immoderate legislation passed by the House. In fact, the available evidence concerning the framers' views strongly suggests just the opposite"). 89 United States v. Ballin, 144 U.S. 1, 6 (1892). 90 See articles cited, supra note 81. 91 U.S. CONST., art. I, § 7, cl. 2 (overriding vetoes); art. II, § 2, cl.2 (treaties); art. V (amendments); art. I, § 3, cl. 6 (impeachment); art. I, § 5, cl. 2 (expulsion) 92 U.S. CONST., art. 1, § 7, cl. 2 ("[e]very Bill which shall have passed the House of Representatives and the Senate shall, before it becomes a Law, be presented to the President of the United States"). 93 II Farrand, supra note 13, at 444, 453 (interstate commerce), 394-95, 449-53 (navigation).

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legislative business were to be determined by simple majority? Given the default rule of the day, I would conclude that it does. The Framers may well have thought that such a majority voting rule was perfectly obvious and did not merit specific mention. On the other hand, it has been cogently argued that the Framers' specification of certain supermajority rules cannot prove that they did not think others might also be in order. 94 Indeed, it might well show that the Framers accepted and approved the use of supermajority rules where appropriate. They might have intended to leave the adoption of other 95 supermajority rules to the Congress itself. The bare text of the Constitution is probably not enough to resolve this question.96 We can also turn to the statements of Madison, Hamilton, Jefferson and others about majority rule in an effort to answer the question at hand. To me, at least, their statements during the Convention, in the ratification debates and afterward lend strong support to the general principle of majority voting. Madison wrote this explanation in The Federalist for why the Convention did not adopt supermajority voting rules in Congress: That some advantages might have resulted from such a precaution, cannot be denied. It might have been an additional shield to some particular interests, and another obstacle generally to hasty and partial measures. But these considerations are outweighed by the inconvenience of the opposite scale. In all cases where justice or the general good might require new laws to be passed, or active measures to 94 See, e.g., McGinnis & Rappaport, supra note 81, at 347-48.

9' This is not the place to discuss the extensive and contradictory principles of interpretation in circumstances where a text specifies certain things and not others. Courts are not consistent on this point, though on several occasions the Supreme Court has decided that the mention of specific conditions in the Constitution implies the exclusion of any others. See, e.g. Marbury v. Madison, 5 U.S. (I Cranch) 137, 174-75 (1803) (listing of specific instances of original jurisdiction in Article II implies that no others are permissible); Powell v. McCormack, 395 U.S. 486, 546 (1969) (listing of specific qualifications for members of the House implies the exclusion of any others). On this authority, one could argue that the inclusion of specific instances of supermajority voting implies that all other votes are by simple majority. 96 Two other textual arguments are sometimes made by those, like me, who believe that the overall document supports a majority rule principle. One is that the Framers' adoption of a quorum rule specifying a majority to do business implies that a majority of a quorum should suffice to carry any motion. But quorum rules and voting rules are at least theoretically independent; one might advocate, as did Madison himself on some occasions, that a supermajority quorum rule has the healthy result of ensuring that members attend legislative sessions. Moreover, in practice the quorum rule was quickly interpreted to allow members to do business with only a few present, so long as no one formally objected to the absence of the quorum. It is also sometimes argued that the provision giving the Vice President a Senate vote only in case of a tie implies that all votes must be by majority vote, but that seems to be putting a great deal of weight on a specific provision aimed at a very narrow power.

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be pursued, the fundamental principles of free government would be reversed. It would no longer be the majority that would rule; the power would be transferred to the minority.9 7 Likewise Alexander Hamilton argued eloquently for the overall principle of majority rule in Federalist 22. He referred to "that fundamental maxim of republican government, which requires that the sense of the majority should prevail., 98 As we have seen, Jefferson was equally clear on the broad concept of majority voting. Nowhere do the Framers' statements specifically argue that every vote in the House and Senate must be by simple majority voting, but they clearly support some sort of majority rule concept in the operation of the Congress. One additional element of proof should be given much greater weight than it has traditionally been given by commentators. I refer to the Framers' experience with the Articles of Confederation. We tend to forget that the Constitutional Convention was prompted by frustration with the loose federated government created by the Articles.99 The dissatisfaction did not stem solely from the limited substantive powers of that government. The leaders of the Convention, who had been members of the Confederation Congress, were also frustrated by the supermajority voting rule that governed its operation. The votes of nine of the thirteen states were required on most important substantive questions.'0 0 Throughout the Convention, in private letters, and in the ratification debates, political leaders of the day bemoaned the effect of supermajority voting under the Articles and used that argument to oppose such rules in the Constitution.'°0 Hamilton, in Federalist 22, was 97 Supra note 17, at 336-37 (The Federalist No. 58). 98 1 DEBATES ON THE CONSTITUTION 510 (Library of America, Bernard Bailyn ed., 1993).

99 The seminal study of the Confederation period is Merrill Jensen's THE NEW NATION: A HISTORY Madison wrote his paper entitled "Vices of the Political System of the United States" before the Convention, and it describes many problems with the Confederation. JAMES MADISON, WRITINGS 69 (Library of America, Jack N. Rakove ed., 1999). Gordon Wood concludes that by the mid-1780s the Confederation Congress had "virtually ceased trying to govern." GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC, 1776-1787, at OF THE UNITED STATES DURING THE CONFEDERATION, 1781-1789 (1950).

359 (1969). See also JACK N. RAKOVE, THE BEGINNINGS OF NATIONAL POLITICS: AN INTERPRETIVE HISTORY OF THE CONTINENTAL CONGRESS 355 (1979). 1oo ARTICLES OF CONFEDERATION, art. 9, para. 6. A majority of states could adopt more routine

measures. Id. Voting was strictly by state. Id. at art. 5, para. 2. In practice, the states interpreted the Articles to require that a majority of each delegation must be present for that state to vote, even for a quorum. Ifa state had only two or three delegates, absences often meant the state could not vote at all. See Rakove, supranote 99, at 355-56. The debilitating effect ofsupermajority voting and other special voting practices is amply demonstrated in CALVIN JILLSON & RICK K. WILSON, CONGRESSIONAL DYNAMICS: STRUCTURE, COORDINATION AND CHOICE IN THE FIRST AMERICAN CONGRESS, 1774-1789 135, 139-145,

19 1-192 (1994). '01Madison, who was a member of the Confederation Congress, wrote to George Washington on

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quite specific in cataloguing the procedural defects of the Confederation Congress's voting rules: To give a minority a negative upon the majority (which is always the case where more that a majority is requisite to a decision) is in its tendency to subject the sense of the greater number to that of the lesser number. Congress from the nonattendance of a few states have been frequently in the position of a Polish Diet, where a single VOTE has been sufficient to put a stop to all their movements. A sixtieth part of the Union, which is about the proportion of Delaware and Rhode-Island, has several times been able to oppose an intire [sic] bar to its operations'02 During consideration of the proposal to require a two-thirds vote on matters affecting interstate commerce, Roger Sherman said "that to require more than a majority to decide a question was always embarrassing as had been experienced in cases requiring the votes of nine states in [the Confederation] Congress."' 0 3 The Convention therefore had good reason for not including in the Constitution any supermajority voting rules for their ordinary legislative business.'°4 Ultimately, though, the argument that supermajority voting rules are foreclosed by a majority rule principle in the Constitution is not entirely conclusive. I would interpret the evidence from the structure of the Constitution, the debates and actions of the Convention, the statements of the Framers, the background of the Articles of Confederation and the general background principle of majority voting, to stand for a somewhat more general proposition, which I call ultimate majority control. The idea embodied in the Constitution is not that every institution must operate so as not to block majority votes, or even that every vote on the floor of the House and Senate must be a simple majority vote. Rather the notion is that the March 16, 1787, that "Congress continue to be thin and of course do little business of importance." JAMES MADISON WRITINGS, supra note 99, at 83. He reported to Thomas Jefferson in 1788, before the new Congress convened, that the old Congress had not seen nine states in attendance "for some time," and in the last week had not even seen the minimum of seven for routine business. Id. at 418. During the Convention, Madison argued that "Experience shows that the confederation is radically defective, and we must in a new national government, guard against these defects." I Farrand, supra note 13, at 497. 102 Supra note 98, at 511. 10311 Farrand, supra note 13, at 450. 104 See BINDER & SMITH, supra note 1,at 51 ("The delegates to the Constitutional Convention knew full well from their experiences in the Continental Congresses that requiring supermajorities was a recipe for stalemate and indecision.").

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Constitution demands ultimate control by a majority at all times. Thus, a majority at Time One may choose to adopt a supermajority procedural rule like the Cloture Rule, and may even operate under such a rule. Such a practice does not offend the majority rule idea embodied in the Constitution so long as a simple majority retains the power to alter or repeal the supermajority rule at any Time Two in the future. Likewise, the majority may tolerate, or even venerate, obstructionist institutions such as the committee system or individualistic practices such as the legislative10hold so long as a 5 simple majority may bypass or change them as it desires. The concept of ultimate majority control in the Congress means, of course, that supermajority rules are really illusory, since they can be repealed at any time by the majority. Nonetheless, they may still be useful, as many feel the Cloture Rule is. They may serve values of stability and fidelity to tradition. Just as some legislative bodies require supermajorities to amend their rules in the interests of continuity and predictability, even though a simple majority may repeal the rule that requires the supermajority vote, so may the Senate agree to use its Cloture Rule even though, as we have seen, it is ultimately subject to simple majority rule. Many University faculties, for example, adopt a rule providing that hiring of new faculty colleagues must be by more than a majority vote, recognizing that hiring a colleague by a bare majority may threaten the cohesion of the faculty and put the new teacher in a difficult position. The rule may be followed by consensus because it is seen as wise, even thought the majority has the power to repeal it at any time. To fully understand the importance of majority rule in the Constitution, and the concept I call ultimate majority control, it is necessary to discuss two other interrelated concepts, the Rulemaking Clause of the Constitution and the anti-entrenchment principle. For it is the interaction of these three ideas that finally makes the constitutional case against binding supermajority voting rules in the Senate a convincing one. That analysis will bring us to appreciate more fully the insight of Professors McGinnis and Rappaport during the debate over House Rule XXI. They wrote that in considering the constitutionality of voting rules, procedural rules are ultimately more important than substantive legislation. 106 Thus it is not necessary to argue that 105Thus the argument that binding rules for limiting debate are no different in their effect than the committee system or individualistic Senate traditions misses the point. Binding supermajority rules are unconstitutional because by definition they override the ultimate power of the majority to control substantive policy. Internal structural obstacles and traditional practices are not unconstitutional because they can and are overcome by majorities when important issues are at stake. Professor Chemerinsky and I have elaborated on this point. See Roberts & Chemerinsky, supra note 84, at 1813-18. 106 McGinnis & Rappaport, The Rights of Legislators,supra note 81, at 343-46.

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the House or Senate could not adopt a rule imposing a supermajority requirement on a specific substantive vote - like tax rate increases.' 0 7 The crucial question is whether the chamber retains the right to waive, modify or repeal such a rule. So long as it does, then the Constitution is not violated. C. The CentralImportance of the Constitution'sRulemaking Clause The strongest basis for arguing that a binding cloture rule would be unconstitutional is undoubtedly the Rulemaking Clause of the Constitution, the portion of Article I, Section 5, Clause 2, providing that "Each house may determine the Rules of its Proceedings." That clause not only provides a textual ground for invalidating a binding cloture rule, but it also, as we shall see in Part V, undergirds the anti-entrenchment principle which supplies another analytical argument against the rule. The Rulemaking Clause argument was the constitutional basis of the several vice presidential rulings on majority cloture made during the 1960's and 1970's,108 and for the case made today by advocates of majority cloture. The Clause has not been the subject of deep analysis by constitutional scholars until relatively recently,'09 and even then commentators have generally not appreciated the central role it plays in defining the legislative power. None seem to have recognized the two different facets of the Clause as developed in this section. 1. Background It is perhaps not surprising that the Rulemaking Clause has played such a low-key role in constitutional theory. On its face it appears to be a mere housekeeping provision, stating a truism that any deliberative body would assume for itself without specific authority. All legislative bodies, including the Constitutional Convention and the first Congress, formulate and adopt rules governing their proceedings as soon as possible after convening. Although a version of the Rulemaking Clause appeared in George Mason's

107

Interestingly, after all the fervor of the initial debate died down, it became clear that the House in

fact operates this way, as argued by McGinnis and Rappaport.

See McGinnins & Rappaport, The

Constitutionalityof Legislative SupermajorityRequirements, supra note 81, at 500-503, n.91. The D.C.

Circuit in Skaggs observed that the House waived the new tax rate supermajority rule several times in the 104th Congress alone. Skaggs v. Carle, 110 F.3d 831, 835 (D.C. Cir. 1997). '0o See BRIEF OF SIX SENATORS, supra note 43, at 235 ("It is the opinion of the Chair that at the beginning of a new Congress a majority of the Senate has the constitutional right to work its will with

regard to the rules by which it desires to be governed, and that that right cannot be restricted by the membership of the Senate in another Congress") (Vice President Richard M. Nixon). 109 My fuller exploration of the clause and its importance can be found in John C. Roberts, Are CongressionalCommittees Constitutional?:Radical Textualism, SeparationofPowers, andthe Enactment Process, 52 CASE W. RES. L. REv. 489 (2001). See also Bruhl, supra note 58, at 383-413.

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Virginia Constitution,' 10 and was included in Charles Pinckney's draft constitution presented to the Philadelphia Convention,"' the final form of the language appears first in the report of the Committee of Detail" 2 and was included in the final text of our Constitution by the Committee on Style and Arrangement. 13 It apparently was not debated by the Convention; indeed, the power to control legislative rules was probably deemed too obvious to be discussed, despite its importance. Likewise, the Clause was not addressed in The Federalist and was not a subject of controversy during the state ratification debates. The earliest interpreters of the Constitution say little about the Rulemaking power, but like Joseph Story treat it as beyond controversy: No person can doubt the propriety of the provision authorizing each house to determine the rules of its own proceedings. If the power did not exist, it would be utterly impracticable to transact the business of the nation, either at all, or at least with decency, deliberation, and order. The humblest assembly of men is understood to possess this power; and it would be absurd to deprive the councils of the nation of a like authority.'14 Looking carefully at the history of the Rulemaking Clause, its use by the Congress, and court decisions interpreting it, however, it becomes clear that, as with many other brief clauses in the Constitution, there is considerably more to it than might initially appear. In performing its vital function in our constitutional structure, the Rulemaking Clause has in fact developed two facets or analytical elements. First, it has served a separation of powers function, providing a textual source for the argument that neither the President nor the federal courts have any power to control the decisions of the House and the Senate on their internal procedures. As I have pointed out elsewhere, 1 5 the Clause deterred to See VA. CONST. (1776); 1 THE PAPERS OF GEORGE MASON, 1725-1792, at 299-310 (Robert A.

Rutland ed. 1970). .. III Farrand, supra note 13, at 605. 112 II Farrand, supra note 13, at 180. 113

Id. at 592.

114 2 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 298 (Leonard W.

Levy ed., Da Capo Press 1970) (1833). "5 Roberts, supra note 109, at 530-42. Insulated from review by the Rulemaking Clause, the House has allowed non-members to vote in its committees and even in the Committee of the Whole House; the House has also reduced the voting effectiveness of the minority party in committees; both houses have adopted extremely generous interpretations of the constitutional quorum requirement and have delegated to

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courts from interfering with decisions of the House or the Senate, even in cases where extremely strained or unusual interpretations of their constitutional powers were involved. The President has never attempted to impose his notions of procedure on the Congress, and so has not tested the effect of the Clause on the Executive Branch. But there is also a second facet to the Rulemaking Clause, one that has proven more important than the first. I shall call it the "continuous power principle" to distinguish it from the separation of powers element described above. Thus, the Rulemaking Clause provides the basis for the argument that each group of legislators in the House and Senate, at any moment in time, possesses the power to determine its own rules, unfettered by rules adopted by those who came before. Since procedure determines substance, this aspect of the Clause guarantees the full legislative power for each group of senators and representatives. It not only assures ultimate majority control in the House and Senate, but also anchors the republican notion that each legislative body must be subject to the will of its constituents. An examination of court decisions interpreting the Rulemaking Clause, and of the actions of the House and Senate since the first Congress convened in 1789, illustrates not only its great importance in ensuring the vitality of the Constitution's grant of legislative power, but also the existence of the two interpretive facets I have described. In their analysis of the Rulemaking Clause argument for the unconstitutionality of the Cloture Rule, Seitz and Guerra discuss only the first element - ensuring that the other two branches do not encroach on the power of Congress to adopt procedures - and do not explore the second, which is actually more relevant to the Cloture Rule discussion. 2. Court Interpretationsof the Rulemaking Clause. Though decisions of the Supreme Court and the courts of appeals over our history consistently interpret the Rulemaking Clause both to prevent encroachment on Congress by the other branches and to preserve the power of each Congress against the ones that come before, they also illuminate one other important point that is often lost in this debate. I refer to the fact that a federal court has never interfered with a purely internal rule of the House or Senate that did not involve other specific constitutional limitations or (in a 1 16 These couple of rare cases) violate the constitutional rights of individuals. a committee the responsibility of presenting passed bills to the President during a recess, among other things. See id. 116 See id.

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decisions clearly support the conclusion that no court would interfere with the decision of the Senate to adopt a Cloture Rule, to follow it, or to modify it without following its requirements. This entire discussion, in other words, is an academic and political one in the truest sense. There would be no practical way of requiring the Senate to follow its Cloture Rule, nor would a court assist those challenging its repeal. This conclusion underscores the great power of the Rulemaking Clause's first, or separation of powers facet. The first significant Supreme Court case interpreting the Rulemaking Clause was Ballin17 in 1892. There the Court was faced with a challenge to the particular quorum procedure used by the House. It declined to judge the House's interpretation of the constitutional quorum requirement, and in so doing articulated both of the elements of the Clause I have described: [A]ll matters of method are open to the determination of the house, and it is no impeachment of the rule to say that some other way would be better, more accurate or even more just. It is no objection to the validity of a rule that a different one has been prescribed and in force for a length of time. The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the house, and within the limitations suggested, absolute and beyond the challenge of any other body or tribunal. 18 ' Perhaps because of the clarity and strength of this position, most of the later cases involving challenges to House and Senate rules have been decided by the circuit courts, and the Supreme Court has not reviewed them. Most have involved the District of Columbia Circuit, and based on the Rulemaking Clause that court has consistently declined to judge congressional rules and practices." 19 As Judge (and former Congressman) Mikva put it in Gregg v. Barrett,a case involving a challenge to Congress's lax practices in printing the Congressional Record: "[O]ur deference and esteem for the institution as a whole and for the constitutional command that the institution be allowed to manage its own affairs precludes us from even attempting a diagnosis of the problem.' 120 In other cases, like Skaggs v. Carle'12 and the House's three'"

United States v. Ballin, 144 U.S. I (1892). .. 8 Id. at 5. "9 See generally Roberts, supra note 109, at 535-41. 120 12

771 F.2d 539, 549 (D.C. Cir. 1985). 110 F.3d 831 (D.C. Cir. 1997).

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fifths voting rule for future tax rate increases, the court discussed the rule at length but eventually decided the plaintiffs lacked standing. Only a few cases have involved the precise question before us, an attempt by the House or Senate to adopt a rule that would be binding on a future 22 session of that body. Metzenbaum v. FERC is the clearest expression of the second facet of the Rulemaking Clause. There the Congress had adopted within a statute certain restrictions on the procedures used for future amendments to that law. When, predictably, a future Congress ignored them in amending the statute, a Senator sued. The court found that the Rulemaking Clause gave the second Congress full power to follow any procedures it 12 3 Based on the wished, even in a case where the restriction was statutory. Rulemaking Clause, the court ruled that the question whether the House or Senate had followed their own rules was non-justiciable, the only requirement in Article I, Section 7, were being whether the minimal rules for enactment 124 were. clearly they which complied with, As these and similar cases show, both elements of the Rulemaking Clause are important. But for our purposes, it is the second one, protecting the legislative power of one group of Senators from those that came before it, that is critical. Seitz and Guerra, like some other commentators, deny any continuous, or "cross-temporal" 125 meaning to the Clause. But since there is no genuine threat of rules encroachment from the President or the Courts, it is really the second facet that is the most important today. If it were otherwise, as we shall see, then one Congress could employ the Rulemaking Clause to destroy itself, and in effect to amend the Constitution by withdrawing an equivalent power from a future Congress. 3. Congress Has Recognized and Followed the Continuous Power Interpretationof the Rulemaking Clause. Aside from the constitutional arguments outlined above, the history of Congress's actions regarding its power over rules shows its commitment to the continuous meaning of the Rulemaking Clause. Since commentators like Seitz and Guerra argue that congressional practice should be a weighty factor in evaluating the validity of the Cloture Rule itself, they must also take this larger history into account. The first item of evidence showing Congress's attitude toward the "' 675 F.2d 1282 (D.C. Cir. 1982) ...Id. at 1287. 124

Id.

125The phrase comes from Michael J. Klarman, MajoritarianJudicial Review: The Entrenchment

Problem, 85 GEO. L.J. 491,498 (1997).

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Rulemaking Clause is the unbroken tradition in each house of waiving or ignoring its rules when no objection is heard, despite rules that impose procedural requirements on such actions. Where could the power to waive or simply ignore rules come from if not from the second facet of the Rulemaking Clause, which gives each group of Senators or Representatives the same power over rules as those who came before? Second, in the case of the House of Representatives the official position on continuous rulemaking power is even clearer. The House has long asserted the constitutional power to adopt new rules at the beginning of each Congress, and in fact operates under general parliamentary rules for the short period every two years before its rules are adopted. 126 The House Manual, which serves as a definitive procedural guide, states unequivocally that the majority's power to adopt rules for each new House is "settled.' ' 127 Since the House and Senate possess the same inherent powers under the Constitution, this principle must also hold true for the Senate. As shown in Part III, the Senate has in fact asserted the majority's power over the Cloture Rule, though it has chosen to operate under its restraints as well. A third item of evidence showing that Congress endorses the continuous power facet of the Rulemaking Clause is its handling of rules statutes. For political or other reasons, the Congress occasionally enacts into law, along with substantive provisions, certain procedural restrictions that purport to apply to future congresses. 128 Under my constitutional theory, of course, these provisions are hortatory only, and cannot legally bind future congresses. 126

HOUSE MANUAL, supra note 87, at 26.

Id. at 197. "The power of each House of Representatives to make its own rules may not be impaired or controlled by the rules ofa preceding House..., or by a law passed by aprior Congress..." Id. at 25. See Bruhl, supra note 58, at 377 n.125 (citing authorities). 128 For examples and analysis of such statutes, see TIEFER, supra note 1; Bruhl, supra note 58. A famous nineteenth century example of this phenomenon concerned Congress's efforts to regulate the process of counting disputed electoral votes. From 1865 to 1877, Congress employed a so-called Joint Rule to govern the count. Each house arguably felt, consistent with my argument, that the Constitution preserved its right to rescind the rule at any time, and the Senate did so in 1876 before the presidential election. After the fiasco of the Hayes-Tilden election that year, which was resolved by a one-time electoral commission, Congress debated for ten years how to handle the problem, ultimately adopting the Electoral Count Act in 1887. The question whether the counting mechanism should be in the form of a statute, another joint rule, or even concurrent House and Senate rules, was much debated as it had been earlier in the century. Many, including some of the bill's principal supporters in the Senate, believed that a statute was no more binding than a rule, for all the same reasons argued for in this Article. Others believed that it was binding. Members finally decided that the statute would have moral and political force even if it were not binding orjudicially enforceable. See Stephen A. Siegel, A Conscientious Congressman's Guide to the ElectoralCount Act of 1887, 56 FLA. L. REv. 541, 560-66 (2004); Vasan Kesavan, Is the Electoral CountAct Unconstitutional?,80 N.C. L. REv. 1653, 1779-87 (2002). Whatever their ambivalence in the nineteenth Century, the current House and Senate would almost certainly not treat the ECA as legally binding, though they might well follow its procedures anyway. The Supreme Court's intervention in the 2000 election count dispute prevented us from finding out. 127

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Congress agrees, and usually includes disclaimer language with such provisions declaring that it retains full power under the Rulemaking Clause to ignore the procedural restrictions. The typical disclaimer clause found in such a "rules statute" provides that the procedural restrictions are enacted: (1) as an exercise of the rulemaking power of the House of Representatives and the Senate, respectively, and as such they are deemed a part of the rules of each House, respectively .... ; and (2) with full recognition of the constitutional right of either House to change the rules (so far as relating to the procedure of that House) at any time, in the same manner and to the 29 that House.1 same extent as in the case of any other rule of Note the clear endorsement of the continuous rulemaking power in the words "at any time," which should leave no doubt as to the Congress's position. That position is confirmed by looking at the legislative history of rules statutes like the Executive Reorganization Acts and Fast Track Trade Authority.

130

Finally, we can look to the actual practice of the Congress when faced with rules statutes that purport to limit each chamber's authority to enact, modify or repeal its rules at any time. Even without disclaimers, says Aaron-Andrew Bruhl in his exhaustive study of such statutes, later congresses frequently ignore the procedural strictures, 13 1just as they do for non-statutory rules such as the 1995 House Rule on tax rate increases. These provisions may have some effect on future congresses, as long as there is a majority consensus that the rules restrictions are wise, but they can and are waived or ignored when the majority desires to do so. In sum, there is little doubt that the Congress itself has believed from its earliest days that "9 5 U.S.C. § 908 (2000) ("Executive Reorganization"). This language appears in the original 1949 enactment. Reorganization Act of 1949, Pub. L. 81-109, § 201, 63 Stat. 206 (1949). 30 See, e.g., S. REP. No. 104-2, at 15 (1995) (Unfunded Mandate Reform Act of 1995) ("The Constitution already reserves the rulemaking powers of each House. This [disclaimer] section provides that the terms of title I are enacted as an exercise of the rulemaking power of the Senate and the House of Representatives, and that either house may change such rules at any time."); S. REP. No. 107-139, at 54 (Bipartisan Trade Promotion Authority Act of 2002) (Section 5(c) recognizes that procedures for adopting a disapproval resolution "are enacted pursuant to the rule-making powers of the House of Representatives and the Senate. It further recognizes the constitutional right of either House to change its rules at any time."); See generallyBruhl, supranote 58, at 365 n.80 (quoting excerpts from various committee reports). 13' Bruhl, supra note 58, at 369.

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it possesses the continuous constitutional power to control its rules, and it has acted consistently with that conviction. The Senate's deeply conflicted attitude toward the Cloture Rule since its beginnings in 1917 provides perhaps the only counter-example, and Congress has never articulated clearly the constitutional justification for treating that Rule as binding in light of the practices outlined above. In any case, as we have seen, the Cloture Rule in the end is not actually binding, but merely exerts a strong pull based on tradition 32 and shared self-interest.' 4. How is the ConstitutionalRulemaking Power to be Exercised? One final question about the Rulemaking Clause must be considered. Seitz and Guerra, like some other commentators, argue that the rulemaking power of each House does not invalidate the Cloture Rule because the Clause does not say how it must be exercised. Confronted with such a sixty-percent rule, they say, a later Congress still possesses its rulemaking power, but it must exercise it by a supermajority vote, in accordance with the prior-adopted rule. 133 A few simple examples suffice to show the flaws in this argument. Let us suppose that Congress One adopts a supermajority voting rule for all rule changes. Because of the Rulemaking Clause and the Congress's traditional default majority voting rule, it has the freedom to adopt that rule by a simple majority of those present. Congress Two, some years later, must form a supermajority to change the rule, yet according to Seitz and Guerra it still possesses its constitutional rulemaking power. But a moment's reflection reveals that the constitutional power of Congress Two over its rules has been reduced. Unlike Congress One, it cannot act in this instance by a simple majority even if it wishes to. Its power of action under the Rulemaking Clause has been restricted, but how could this have been accomplished constitutionally? Certainly Congress One cannot amend the Constitution by adopting such a rule. Just as surely, Congress One cannot use the Rulemaking Clause to restrict or eliminate the Clause itself. The Rulemaking Clause thus operates to protect ultimate majority rule. While the supermajority rules that are usually discussed in this debate may seem a relatively minor restriction on majority rule, the principle Seitz and Guerra defend has no logical limit. If Congress One can adopt a two-thirds requirement for rules changes, it can also adopt a 90 percent requirement, or 132 133

See supra Part III. Seitz & Guerra, supra note 5, at 7.

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539

even prohibit changes in the rules altogether. Each action, according to Seitz and Guerra, would be justified as a proper use of the Rulemaking Power. But the end result is that the power of future majorities to enact legislation would be destroyed. Under this logic, the first House and the first Senate could have adopted un-amendable rules and thus bound future majorities to all sorts of restrictive parliamentary practices. And lest we be misled into believing that we are concerned here only with "procedural" rules which do not restrict the Senate's ability to adopt substantive legislation, let us remember that procedure always controls substance. The ability to establish the rules by which legislation must be considered controls the fate of that legislation. Certainly the history of the Cloture Rule itself during the civil rights battles of the mid-twentieth century demonstrates the truth of that proposition. Furthermore, what is to prevent the Senate from adopting quasi-substantive rules, like a rule providing that a 90 percent majority is necessary to cut off debate on a motion to take up any tax bill? Such a rule is undoubtedly procedural, but just as clearly prevents the Senate from adopting that type of substantive legislation. It is evident then that the continuous rulemaking power I argue for is a vital protection for the principle of ultimate majority control in Congress, and that it has operated that way in fact throughout our history. Any alternative theory, like that advocated by Seitz and Guerra for binding supermajority Cloture Rule, allows one majority to hamstring all future majorities and even to foreclose action altogether. In this sense there is no logical stopping point except simple majority rule. Put this way, the argument is very much like that over the entrenchment principle. Professors Posner and Vermeule in their recent article defending legislative entrenchment, 134 also fail to appreciate the slippery slope that their abandonment of majority voting entails. We shall take up that argument in more detail in Part V. below. Again, let me emphasize that the Rulemaking Clause empowers the Senate and House at any time to adopt supermajority votes by a simple majority, and even to operate under supermajority rules by consent. But it also ensures the power of each subsequent group of legislators, even a day after adoption of the restrictive rule, to waive, modify or repeal it by a simple majority vote. Thus a "binding" Cloture Rule, if it existed, would violate the Rulemaking Clause of Article I, Section 5.

134 Eric A. Posner & Adrian Vermeule, LegislativeEntrenchment:A Reappraisal,111 YALE L.J. 1665 (2002).

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V. A BINDING CLOTURE RULE WOULD VIOLATE THE ESTABLISHED ANTI-ENTRENCHMENT PRINCIPLE

There is another legal argument for the proposition that binding supermajority rules like the Cloture Rule would be invalid, and it involves the long-established principle that one legislature cannot bind a future one. This idea, often referred to as the anti-entrenchment principle, expresses a basic norm of republican government, that each group of elected representatives, who may have very different social, economic and political views from the preceding one, should be able to work its will. While the anti-entrenchment principle does not appear as such in the Constitution, it can be readily grasped from our discussion in Part IV that it is really an earlier and more general expression of the second element of the Constitution's Rulemaking Clause. They embody exactly the same idea of continuous legislative autonomy, preserving the full freedom of action in each body of legislators over time. They thus are not independent concepts, as Seitz and Guerra (and others) argue. 135 They are intertwined principles with the same function - ensuring the ultimate majority control we have discussed earlier. Just as a binding Cloture Rule, or any other binding supermajority rule, would violate the Rulemaking Clause, it would also violate the established anti-entrenchment principle which lies at the heart of our representative democracy. A. Background of the Anti-Entrenchment Principle Professors Posner and Vermeule, in their defense of entrenchment, define it as referring to "statutes or internal legislative rules that are binding against subsequent legislative action in the same form." 13 6 The key notion is that

entrenched legislative actions are "binding" in some legal sense, though as we have seen federal courts have made it clear that they would not interfere in any controversy between different congresses over this binding effect, 1 37 rendering the concept of entrenchment an abstract one at best. Because entrenchment must involve binding effect, it is important to reiterate that other kinds of restrictions on legislative action, whether they involve structural elements like the committee system, or informal traditions 135 Seitz & Guerra, supra note 5, at 6-7, 23-28. Professor Vermeule also considers them separate, though he agrees with the views expressed here that the Rulemaking Clause invalidates rules which attempt to bind the future. Adrian Vermeule, The ConstitutionalLaw of CongressionalProcedure,71 U. CHI. L. REV.361, 430 (2004). 136 Posner & Vermeule, supra note 134, at 1667. 137 See supra Part IV.C.2.

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like the Senate "hold," do not fall within this definition of entrenchment. These factors, and a host of other social, political and personal ones that effect the way legislation moves through Congress, may in fact prevent a current majority in the House or Senate from enacting its preferences into law. But they are not entrenchment, because they are subject to the will of a majority.138 They are not "binding" in the sense Posner and Vermeule, or Seitz and Guerra, use that term, because a determined majority can and does override them when circumstances warrant. One need only think back to the enactment of President Bush's tax cut in 2001 or the enactment of the U.S.A. Patriot Act to understand that all structural and informal obstacles to quick majority action can be swept away if the desire to legislate and the pressure from the people are strong enough.139 . There is ample evidence for the existence of an anti-entrenchment principle applicable to all legislative bodies, as even its critics acknowledge. 14 It seems to have deep roots in English parliamentary practice and was apparently imported into the American system as a matter of common understanding. Cooley stated it as a basic rule of legislative power: To say that the legislature may pass unrepealable laws, is to say that it may alter the very constitution from which it derives its authority; since, insofar as one legislature could bind a subsequent one by its enactments, it could in the same 141 degree reduce the legislative power of its successors .... Chief Justice Taney, writing in 1853, articulated it this way: The powers of sovereignty confided to the legislative body of a State are undoubtedly a trust committed to them, to be executed to the best of their judgment for the public good, and no one Legislature can, by its own act, disarm their sovereignty successors of any of the powers or rights of 42 body. 1 legislative the to people the by confided The Supreme Court later reiterated this view, expressing it in a way that This argument is developed at greater length in Roberts & Chemerinsky, supra note 84, at 1813-18. and other examples are discussed at id. 140 Seitz and Guerra quote Blackstone on the importance of preserving the freedom ofeach Parliament. Seitz & Guerra, supra note 5, at 27. '4' THOMAS MCINTYRE COOLEY, CONSTITUTIONAL LIMITATIONS 125-26 (1 st ed. 1868). 4 Ohio Life Ins. & Trust Co. v. DeBolt, 57 U.S. (16 How.) 416, 431 (1853). 13

139 These

542

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shows clearly the relationship between the Rules of Proceedings Clause, which appears in both the federal and state constitutions, and the antientrenchment principle: Every succeeding Legislature possesses the same jurisdiction and power. .. as its predecessors. The latter must have the same power of repeal and modification which the former had of enactment, neither more nor less. All occupy, in this respect, a footing of perfect equality. This must necessarily be so in the nature of things. It is vital to the public welfare that each one should be able at all times to do whatever the varying circumstances and present exigencies touching the subject involved may require. A different result would be 43 1 evil. with fraught Likewise, until the recent article by Posner and Vermeule, it was virtually impossible to find a scholarly commentator who did not accept the antientrenchment principle as a settled part of ourjurisprudence.144 Charles Black once described it as a rule which "on the most familiar and fundamental principles, so obvious as rarely to be stated,"'' 45 should continue to be followed. Congress has always treated the anti-entrenchment principle as one of the fundamental rules governing its functioning. No scholar, to my knowledge, has ever pointed out a statute passed by the House and Senate that attempted substantive entrenchment - providing, in other words, that it could not be amended or repealed at all. That fact alone is ample evidence that Congress never entertained the thought that it might have such power. As for procedural entrenchment, we have seen in Part III.C that Congress has frequently in recent years passed statutes which purported to restrict future congresses, usually by the imposition of limits on debate or amendments. Most have been accompanied by disclaimers making it clear that they are not in fact binding or future congresses, and all have been freely ignored when 143 Newton v. Comm'rs, 100 U.S. 548,559(1879). The Court has often made clear that this principle applies to Congress as well at to state legislatures. See, e.g., Reichelderfer v. Quinn, 287 U.S. 315, 318 (1932) ("[T]he will of a particular Congress... does not impose itself upon those to follow in succeeding years."). 144 See generally Julian A. Eule, Temporal Limits on the Legislative Mandate: Entrenchment and Retroactivity, 1987 AM. B. FOUND. RES. J. 379; Klarman, supra note 125; Paul W. Kahn, Gramm-Rudman and the Capacityof Congress to Control the Future, 13 HASTINGS CONST. L. Q. 185 (1985). 145 Charles L. Black, Jr., Amending the Constitution:A Letter to a Congressman, 82 Yale L.J. 189,191 (1972).

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subsequent majorities found it convenient to do SO. 14 6 Here, as with the filibuster, members are conflicted-on the one hand wanting to prevent future change in their enacted policies, and on the other hand recognizing the importance of legislative autonomy. The single arguable exception to this tradition is the Cloture Rule itself, which is the subject of our discussion. My position, of course, is that it is not a violation of the entrenchment principle, both because it responds to majority control and because it is frequently waived or modified in specific "fast track" legislation. B. The Anti-EntrenchmentPrincipleand the Constitution Professor Chemerinsky and I have recently set out in full our position that entrenched measures, whether procedural or substantive, would violate the Constitution. 147 We argue that they violate the spirit of the Constitution because they are inconsistent with principles of democratic accountability and majority control. They also violate the letter of the Constitution in a number of ways. We point out, for example, that entrenched statutes would violate the Vesting Clause and other portions of Article I by in effect altering the procedure for enacting laws. We also distinguish the Constitution's own entrenched provisions, such as the procedure for amendment in Article V, by noting the different legal status of constitutions and ordinary legislation. But the most important textual support for the idea that entrenched laws or rules violate the Constitution comes from the Rulemaking Clause of Article I, Section 5. Keep in mind that advocates of entrenchment must accept not only the relatively mild form represented by a sixty percent supermajority requirement, but also the more extreme forms such as a ninety percent required majority or a complete prohibition on repeal or amendment. Recalling the arguments made in Part IV about the Rulemaking Clause, it is easy to see how such requirements encroach on the power of succeeding legislatures to determine their own rules of proceeding, and in effect modify the Rulemaking Clause for subsequent legislatures without going through the procedures mandated by Article V. For all the same reasons that the Cloture Rule violates the Rulemaking Clause, so too does any entrenched measure, substantive or procedural, violate the same constitutional provision. C. Supermajority Voting Rules and the Anti-Entrenchment Principle Seitz and Guerra reluctantly accept the anti-entrenchment principle generally, but assert that it does not apply to procedural rules like the Cloture 146

See supra Part IV.C.3.

117 Roberts & Chemerinsky, supra note 84.

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Rule, which they characterize as merely rules of debate. 148 However, since all attempts at entrenchment in Congress have involved procedural rules, they might just as well argue that the entrenchment principle does not apply at all. Recognizing the wide acceptance by the Supreme Court and Congress of the basic notion that legislative entrenchment is not permitted in our legal system, they attempt to rest on the distinction between substance and procedure. Should our conclusion on constitutionality be different for substantive and procedural entrenchment? At the outset, we should observe that no such distinction has been made by courts and earlier commentators who discuss the entrenchment principle. It seems illogical in the extreme to allow only procedural entrenchment, since by simple devices a legislative body thus armed could accomplish substantive results. Recall our earlier example of a parliamentary rule that a ninety percent vote was necessary to cut off debate on a motion to take up a tax bill in the Senate. Though the rule is a rule of debate, exempt from entrenchment prohibitions according to Seitz and Guerra, the result is the same as if a rule had been adopted requiring a ninety percent vote to pass a tax measure. In reality, every observer of legislative bodies, and certainly every Senator, knows that there is really no difference between substance and procedure, and that as between the two procedure is more important.150 We read in the newspapers every week of legislative measures that are defeated on "procedural' votes. Motions to table, motions to recommit, motions to make a matter the pending business, and similar motions can all present procedural opportunities to defeat a measure in the Senate. Such votes often provide political cover for those who do not wish to vote up or down on a controversial measure. Procedural entrenchment, approved by Seitz and Guerra, is in fact much more effective in blocking later action, since it can be used to defeat whole classes of legislation. Filibuster and cloture themselves show how intertwined substance and procedure can be on the floor of the Senate. Filibusters were commonly mounted on procedural motions like motions to proceed to a matter, and even on motions to appoint conferees.' 5' Parliamentary experts point out that the multiple procedural steps needed to bring a bill to a final vote provide

148 Seitz

& Guerra, supra note 5,at 22-32. Bruhl also argues that procedural rules are exempt from the

anti-entrenchment principle. Bruhl, supra note 58, at 379-80. 150OLESZEK, supra note 20, at I I ("[V]ery often policy decisions are expressed as procedural moves."). Walter Oleszek quotes veteran Democratic congressman John Dingell as declaring that "If you let me write the procedure, and I let you write the substance, I'll [beat] you every time." Id. at 12. 151See TIEFER, supra note I, at 565-66, 761; Beth & Bach, supra note 20, at 11-12.

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15 2 Until the 1949 rules multiple opportunities for filibuster even today. change, cloture could only be invoked on "measures," and totherefore 53 and difficult stop. common quite were motions procedural on filibusters Indeed, what could be a more telling example of the connection between procedure and substance than the single-minded use of the filibuster and the two-thirds Cloture Rule in the mid-20th century by southern conservatives opposed to Civil Rights Legislation. As Senator Douglas argued in pleading for majority cloture in 1961: "The same group that makes it impossible to obtain two-thirds cloture on meaningful and effective civil rights legislation makes it impossible to obtain two-thirds cloture on a rule change for the 154 civil rights legislation.' purpose of enacting meaningful and effective Senator Douglas rightly characterized the cloture rules that block the to end filibusters as "substance masquerading as majority's ' efforts 55 procedure." Seitz and Guerra offer several arguments to support their notion that the anti-entrenchment principle invalidates rules that require supermajorities for specified substantive enactments, but is inapplicable to rules that adopt supermajority requirements for procedural steps. First, they observe that the Senate itself makes that distinction, since it has never adopted a substantive entrenchment measure. 56 That is certainly true, but the fact is that the Senate has almost never observed any of the many procedural entrenchment measures it has adopted either. Since the Congress has shown no desire to observe any of the entrenchment directions of previous congresses, it is very hard to support any procedure vs. substance distinction. Second, Seitz and Guerra argue that the rationale underlying the antientrenchment principle, which they identify as freeing each Congress to achieve any substantive legislation it desires, does not apply to procedural rules like rules of debate, since they do not directly determine substantive policy. 5 7 As we observe above, however, this distinction is untenable; procedural parliamentary maneuvering can control legislative outcomes. What seems like a technical rule of debate, such as a requirement that a ninety percent majority be achieved to cut off debate on a motion to make a measure the pending item of business, is the same as a vote on the bill itself. And since the real rationale of the anti-entrenchment principle does not relate to

133

Beth & Bach, supra note 20, at 11-12. See TIEFER, supra note 1, at 702, 757.

'54

BRIEF OF SIX SENATORS, supra note 43, at 233.

152

'5' Id. at 236. 156 Seitz & Guerra,

'

Id. at 25-26.

supra note 5, at 24.

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any particular type of legislation action, but rather to the idea of full legislative autonomy at any moment in time, substance and procedure are equally important. Third, they argue that, like the Cloture Rule, the Senate has many other rules, practices and traditions that just as surely obstruct majority rule. If they are not viewed as impermissible entrenchment, why should the Cloture Rule be so characterized? But as we have already observed, all of these structures and practices, like committees, holds and the tradition of recognizing the majority leader before other senators, are not binding in any legal sense. They can and are changed or ignored by a determined majority. By definition, however, the kind of Cloture Rule Seitz and Guerra posit is different - it is binding in some legal sense on future groups of senators. The final defense of the Cloture Rule from attack under the antientrenchment principle is more subtle, but also ultimately unconvincing. Seitz and Guerra argue that the anti-entrenchment principle is intended to protect the sovereignty of each chamber, and in the case of the Senate that sovereignty has a unique twist. Since the Senate was designed to preserve the power of the States, and especially the power of the small states against encroachment by the large states, rules and practices that increase the power of minorities in the Senate are consistent with this conception. There are several answers to this argument. First, since the idea behind the antientrenchment principle is continuous legislative autonomy, its power should not depend on the purpose of the entrenched rule. A valid purpose, after all, is in the eye of the beholder. Nowhere in the commentary on entrenchment has it been suggested that some limitations on autonomy are allowed because they serve some loftier goal while others are not. Second, we must remember that the underlying rationale for the anti-entrenchment principle is ultimate majority control - derived directly from the theory of popular sovereignty. While the Framers constructed a Senate partly in response to concerns about preserving state power, there is no reason to believe that they also sanctioned additional changes to further increase such power. In fact, the balance they struck was hard-fought and specific, certainly not an open-ended invitation to continue to expand the power of small states. Finally, defending a binding Cloture Rule because it reinforces the Framers' effort to protect the influence of the states misconceives the scope of Seitz and Guerra's own argument. They contend that all binding rules of debate in the Senate are exempt from the anti-entrenchment principle, and this would have to include those that would reducethe influence of the states. Under their theory, for example, the Senate could adopt rules strictly limiting debate, and thus take away the power of minority groups or small states to forestall legislative action.

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Despite their effort to create a special conception of sovereignty for the Senate, the effect of entrenched rules on future legislatures is clearly a violation of their sovereignty, however defined. VI. CONCLUSION

My aim in this article has been to bring some analytical focus to the ongoing debate on the constitutionality of binding supermajority voting rules in Congress, and to add some new ideas. The issues retain their vitality, as Virginia Seitz and Joseph Guerra have shown, because they implicate so many principles that are vital to our conception of representative government. My ultimate position can be simply stated. There is no such thing in either law or practice as a binding procedural rule in the House or Senate, in the sense that it cannot be changed by a simple majority. If there were such a legally binding rule, it would be unconstitutional. Moreover, no court would interfere to enforce such a rule against a future simple majority that decided to ignore, repeal or change it. I base these conclusions both on an analysis of actual congressional practice and on constitutional or quasi-constitutional (in the case of the antientrenchment concept) arguments. But in the end the dispute comes down to the meaning of majority rule in a representative government. Binding procedural rules would make it possible to alter or destroy the legislative power of future congresses. The principle of ultimate majority control, which I see as fundamental to the argument against such rules, grows out of two intertwined legal concepts - the continuous power over rules embodied in the Constitution's Rulemaking Clause and the venerable anti-entrenchment principle that ensures each Congress's independence from the past. That principle is further buttressed by the unbroken history of Congress's actual behavior in jealously guarding its continuous legislative power, exercised by simple majority vote. The perennial dispute about the filibuster and the validity of the Senate Cloture Rule is not in the final analysis a legal or a constitutional one. It is about power, politics, tradition and stability. Senators have already demonstrated that they can modify the Cloture Rule both directly and indirectly through majority vote. As Lyndon Johnson and Robert Byrd well knew, the philosophical, jurisprudential and constitutional arguments were really just window dressing. Both the filibuster and the Cloture Rule exist because the Senate wants them to exist.