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Testimony

Testimony of Mimi Marziani on the Filibuster: Legislative Proposals to Change Senate Procedure

In this testimony presented before the U.S. Senate Committee on Rules and Administration, Mimi Marziani gives the relevant historical background to provide context for the modern-day filibuster debate.  She illustrates that ever since the Senate has perceived the filibuster as a problem, there has been robust support for the position that a majority of senators can effect rules change at the start of a new Congress.

  • Mimi Murray Digby Marziani
Published: September 22, 2010

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 Testi­mony of

MIMI MARZI­ANI

BREN­NAN CENTER FOR JUSTICE AT NYU SCHOOL OF LAW[1]

 Submit­ted to the

 U.S. SENATE COMMIT­TEE ON RULES & ADMIN­IS­TRA­TION

 For the hear­ing entitled

 Examin­ing the Fili­buster: Legis­lat­ive Propos­als to Change Senate Proced­ures

 Septem­ber 22, 2010

Mr. Chair­man and members of the subcom­mit­tee:

I am pleased and honored to testify today about the Senate’s consti­tu­tional power to estab­lish and amend its rules of proceed­ings.  I appre­ci­ate the decision of this commit­tee to explore this issue among the other import­ant consti­tu­tional and prac­tical ques­tions raised by the fili­buster.  In the testi­mony that follows, I will explain why a simple major­ity of the Senate has the consti­tu­tional author­ity to cut off debate and vote to amend the Rules at the start of a new Congress, notwith­stand­ing any contrary provi­sions within the Rules them­selves. 

In the testi­mony that follows, I first give the relev­ant histor­ical back­ground to provide context for today’s debate.  I illus­trate that ever since the Senate has perceived the fili­buster as a prob­lem, there has been robust support for the posi­tion that a major­ity of senat­ors can effect rules change at the start of a new Congress.  Next, I exam­ine the scope of the Senate’s consti­tu­tional power to estab­lish its rules as well as the long­stand­ing consti­tu­tional prohib­i­tion against legis­lat­ive entrench­ment.  I conclude that if the Rules could not effect­ively be changed via major­ity vote at the start of a new Congress, they would be uncon­sti­tu­tional.  Finally, I refute the main argu­ment advanced to justify bind­ing future Senates to the current Senate Rules – the notion that the Senate’s over­lap­ping term struc­ture justi­fies entrench­ment.  Even assum­ing that the Senate is a “continu­ing body” in some mean­ing­ful way, this alone cannot explain why the Senate has the power to commit itself for perpetu­ity.  Instead, such bind­ing exceeds the author­ity gran­ted to the Senate by the Amer­ican people. 

I.          There is Strong Histor­ical Preced­ent for the Senate’s Consti­tu­tional Power to Effect Rules Change by a Major­ity Vote at the Start of a New Congress.   

Today, it is well known that a minor­ity of senat­ors can prevent the entire cham­ber from taking a final vote on almost all bills and nomin­a­tions.  This unique abil­ity derives from the Senate’s proced­ural rules, which require a super­ma­jor­ity vote of 60 to end debate and force a vote on the under­ly­ing matter.[2]  The Rules of the Senate place an even higher bar on their own amend­ment – under Rule XXII, when a rules change is being considered, 67 senat­ors must agree to stop debate.[3]  And, the Rules claim to be perpetual.  Under Senate Rule V, “[t]he rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.”   

Several legal schol­ars and polit­ical scient­ists have detailed the Senate’s many attempts to curb obstruc­tion by reform­ing these rules.[4]  Although there is no need to rehash this long history in full, it is import­ant to under­stand the preced­ent that has been estab­lished through past reform efforts.  As illus­trated below, numer­ous senat­ors have voiced support for the Senate’s consti­tu­tional power to over­ride obstruc­tion and determ­ine its rules by major­ity vote.  Several Vice Pres­id­ents, sitting as Pres­id­ents of the Senate, have agreed.  And, in 1975, the Senate form­ally adop­ted that view as well.

A.        The Early Senate Recog­nized that a Major­ity of the Senate Could Over­ride a Fili­buster and Force a Rules Change at the Start of a New Congress.

Although the fili­buster – the term used to describe any stra­tegic use of delay to block legis­lat­ive action[5] – is a tactic as old as Congress itself,[6] the Senate’s seri­ous struggle with obstruc­tion has a shorter history.  By most accounts, the first iden­ti­fi­able fili­busters did not occur until the mid-nine­teenth century, emer­ging with the profound North-South sectional disputes and party crises of that time.[7]  Fili­busters were not partic­u­larly effect­ive until the end of the 1800s, however, when delay tactics were used more frequently and with greater sever­ity.[8]  As obstruc­tion worsened, cries for reform intens­i­fied.  And, with reform efforts, came argu­ments of the Senate’s power to estab­lish its rules by a major­ity vote, fili­busters notwith­stand­ing. 

Indeed, Henry Clay (Whig-KY), oppos­ing a Demo­cratic fili­buster of a 1841 bill to estab­lish a national bank – “the first major epis­ode[] of obstruc­tion in Senate history”[9] – argued that he would “resort to the Consti­tu­tion and act on the rights insured in it to the major­ity, by passing a meas­ure that would insure the control of the busi­ness of the Senate to the major­ity.”[10]  Specific­ally, Clay called for a revival of the previ­ous ques­tion motion[11] to quash debate upon a major­ity vote.  The Demo­crats soon retreated, however, allow­ing the Senate to pass the Whig’s key legis­lat­ive items and prompt­ing Clay to drop his proposal. [12]  But, while Clay never form­ally proposed proced­ural reform, his threats likely spurred the Demo­crats’ change of strategy.

In 1891, after repeated Demo­cratic fili­busters of a bill author­iz­ing federal troops to super­vise federal elec­tions, Repub­lican lead­ers sought – and obtained – a series of rulings from Vice Pres­id­ent Levi Morton permit­ting a major­ity vote to cut off debate and create a cloture rule.[13]  Despite the Senate’s tradi­tion of unlim­ited debate, veteran Senator George Edmunds (R-VT) explained that the major­ity must be able to exer­cise this power: “The Consti­tu­tion. . . neces­sar­ily implies that no minor­ity, whether of one or any other number, should or could unduly obstruct the expres­sion of the will of the major­ity.” [14]  And, a major­ity of the Senate agreed, subsequently approv­ing a motion to proceed to floor debate on the proposed proced­ural reform.  Ulti­mately, the reform did not pass, but for reas­ons unre­lated to Edmunds’ consti­tu­tional claims.[15]

Two decades later, after a “little group of will­ful men” success­fully fili­bustered a bill to arm U.S. merchant ships against German attacks during World War I, the Pres­id­ent and public deman­ded proced­ural reform.[16]  When the Senate began its debate on rules changes, Senator Thomas Walsh (D-MT) argued at length that the Senate had the consti­tu­tional power to determ­ine its own rules by a simple major­ity vote at the start of a new Congress in spite of the Senate’s tradi­tion of unlim­ited debate.[17]  Walsh poin­ted out that the Consti­tu­tion gives each cham­ber the same author­ity to determ­ine its rules, a power that the House has long used to set new rules each session by a major­ity vote.  Moreover, the Senate’s over­lap­ping term struc­ture could not justify decreas­ing the insti­tu­tion’s rule­mak­ing power: “A major­ity may adopt the rules, in the first place.  It is prepos­ter­ous to assert that they may deny future major­it­ies the right to change them.”[18]  If any Senate rule actu­ally preven­ted a major­ity from acting in this manner, Walsh declared, that rule would be uncon­sti­tu­tional and thus invalid.[19]   Soon there­after, the Senate enacted its first formal cloture rule in 1917 by an over­whelm­ingly affirm­at­ive vote of 76–3.[20]  Walsh’s argu­ments were never form­ally considered.

B.         The Modern Senate Has Expressly Recog­nized its Consti­tu­tional Author­ity to Effect Rules Change at the Start of a New Congress, Notwith­stand­ing Any Rules to the Contrary

Since 1917, the cloture rule has been amended several times – each time, with the goal to make it easier for a major­ity to over­come obstruc­tion and force a substant­ive vote on the under­ly­ing matter.[21]  During each signi­fic­ant push for reform, senat­ors have argued that the Consti­tu­tion allows a major­ity to over­ride a fili­buster and vote on proposed reform, notwith­stand­ing any contrary provi­sions within the Rules.  In 1953, 1957, 1959, 1961, 1963, and 1967, there were organ­ized move­ments at the begin­ning of the congres­sional session to assert this power.[22]  Vice Pres­id­ents Richard Nixon (in 1957 and 1959) and Hubert Humphrey (in 1967) each issued advis­ory opin­ions expli­citly endors­ing the Senate’s consti­tu­tional power to effect rules change in this manner.

Vice Pres­id­ent Nixon considered this issue at length in 1957.  He concluded that:

It is the opin­ion of the Chair that while the rules of the Senate have been contin­ued from one Congress to another, the right of a current major­ity of the Senate at the begin­ning of a new Congress to adopt its own rules, stem­ming as it does from the Consti­tu­tion itself, cannot be restric­ted or limited by rules adop­ted by a major­ity of the Senate in a previ­ous Congress. Any provi­sion of Senate rules adop­ted in a previ­ous Congress which has the expressed or prac­tical effect of deny­ing the major­ity of the Senate in a new Congress the right to adopt the rules under which it desires to proceed is, in the opin­ion of the Chair, uncon­sti­tu­tional.  It is also the opin­ion of the Chair that [Rule XXII] in prac­tice has such an effect.[23]

Thus, Nixon contin­ued, the Senate has three options at the start of each new Congress: (1) proceed to conduct busi­ness under the stand­ing rules, thereby adopt­ing them for the new session; (2) vote down any motion to change the Rules, also thereby adopt­ing them for the new session; or (3) vote affirm­at­ively to proceed with the adop­tion of new rules by a major­ity vote.[24]  That year, the Senate voted to table the pending motion to proceed on a rules change proposal, and thus decided to oper­ate under the stand­ing rules for the remainder of that congres­sional session.  

In 1959, at the start of the next session, Nixon reit­er­ated his under­stand­ing of the Senate’s consti­tu­tional power in response to a series of parlia­ment­ary inquir­ies.  This time, with a clear major­ity support­ing reform, a comprom­ise deal was struck.  Although the cloture rule was tightened,[25] the Senate also agreed to add Senate Rule V, stat­ing that “[t]he rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.” 

Although many objec­ted to Rule V as uncon­sti­tu­tional,[26] others argued that it would not be legally bind­ing.  Senator Thomas Hennings (D-MO), for instance, repeatedly assured his colleagues that Rule V was “without final force or effect.”[27]  Or, as Senator John Cooper (R-KY) put it, “I do not think [Rule V] would have any legal or consti­tu­tional effect, but certainly might have some psycho­lo­gical effect.”[28]  Ulti­mately, the vast major­ity of the Senate appar­ently approved of find­ing a middle ground that gener­ally satis­fied both reformers and anti-reformers.  This comprom­ise passed by a vote of 72–22.[29]

In the years that followed, however, civil rights legis­la­tion contin­ued to be thwarted by the fili­buster, prompt­ing calls for addi­tional reform.  In 1969, at the start of the new Congress, a group of 37 senat­ors intro­duced a proposal to decrease the number of votes needed for cloture.  Then, one senator asked Vice Pres­id­ent Humphrey if a simple major­ity could invoke cloture on the rules change resol­u­tion.  Humphrey explained that they could:

There is perhaps no prin­ciple more firmly estab­lished than the consti­tu­tional right of the Senate under article I, section 5 to “determ­ine the rules of its proceed­ings.” The right to determ­ine includes also the right to amend. No one has ever, to the Chair’s know­ledge, seri­ously sugges­ted that a resol­u­tion to amend the Senate rules required the vote of more than a simple major­ity.  On a par with the right of the Senate to determ­ine its rules, though perhaps not set forth so specific­ally in the Consti­tu­tion, is the right of the Senate, a simple major­ity of the Senate, to decide consti­tu­tional ques­tions. . . . It is the view of the Chair, just as it was the view of an earlier Pres­id­ent of the Senate, who is now the Pres­id­ent-elect, that, at least, at the open­ing of a new Congress: “The major­ity has the power to cut off debate in order to exer­cise the right of chan­ging or determ­in­ing the rules.”[30]

Soon there­after, a major­ity of the Senate narrowly voted to invoke cloture, 51–47.  Recog­niz­ing this as a valid legis­lat­ive act, Humphrey announced that the Senate would proceed to consider the resol­u­tion.  The cloture vote was imme­di­ately appealed, however, and some appar­ently had a change of heart.  In a second vote, again decided by a narrow margin, the Senate over­turned Humphrey’s ruling.[31]  The 1969 reform proposal died with this second vote.   

The reform push of 1975, however, ended differ­ently – that year, the Senate set a formal preced­ent that future rules reform could be effec­tu­ated by major­ity vote. At the start of that Congress, a group of senat­ors led by Senat­ors Walter Mondale (D-NM) and James Pear­son (R-KS) again sought to amend Rule XXII.[32]  Their resol­u­tion included a provi­sion stat­ing that a major­ity could end debate and proceed to vote on the under­ly­ing rules change proposal.  An oppon­ent of reform quickly raised a point of order that the resol­u­tion was controlled by the Senate’s stand­ing rules and thus subject to the super­ma­jor­ity cloture require­ment.  Vice Pres­id­ent Nelson Rock­e­feller disagreed, instead recog­niz­ing each Senate’s consti­tu­tional right to effect rules change by major­ity vote.[33]  The Senate followed suit, voting 51–42 to table the oppos­ing point of order and setting an import­ant preced­ent.[34]  The Senate reaf­firmed its posi­tion twice in the week that followed, over­turn­ing two more contrary motions.[35]

Even­tu­ally, as has oft occurred, the threat of more drastic changes to the Senate Rules inspired comprom­ise.  Said simply, anti-reformers agreed to lower the cloture require­ment in exchange for another vote meant to reverse the new preced­ent.[36]

Many senat­ors noted, however, that preced­ent cannot be erased so simply.  As Senator Robert Byrd put it, “Senat­ors can argue these preced­ents any way they wish. They can place any inter­pret­a­tions on these recent preced­ents that they want to place.”[37]  Senator Alan Cran­ston (D-CA) echoed that senti­ment, arguing that “no preced­ent can reverse the fact that the Consti­tu­tion super­sedes the rules of the Senate – and that the consti­tu­tional right to make its rules cannot be chal­lenged.”[38]

Schol­ars of senate proced­ure largely agree.  Professor Charles Tiefer, the author of an extens­ive treat­ise on Senate proced­ure, char­ac­ter­ized the recon­sid­er­a­tion vote as little more than a token gesture – in truth, he explained, “the Rubicon had been crossed.”[39]  As polit­ical scient­ists Sarah Binder and Steven Smith have concluded, there is simply no doubt that “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.”[40]  In other words, the Senate clearly defined the scope of its consti­tu­tional author­ity.

II.        If a Simple Major­ity Lacked the Power to Effect a Change in the Senate Rules, the Rules Would Be Uncon­sti­tu­tional.

As a consti­tu­tional matter, there is little doubt that the preced­ent set by the Senate in 1975 is legally sound.  The Senate has continual author­ity to estab­lish the rules of its proced­ure.  It cannot entrench its current rules by impos­ing super­ma­jor­ity barri­ers that render change effect­ively impossible.  Moreover, entrench­ment blunts legis­lat­ive account­ab­il­ity in a way that offends key demo­cratic values.  For these reas­ons, elab­or­ated upon below, a simple major­ity must be able to cut off debate and vote to revise the Senate Rules at the start of a new Congress – other­wise, the Rules would be uncon­sti­tu­tional.     

A.        If a Simple Major­ity Lacked the Power to Effect Rules Change, the Rules would Improp­erly Impinge Upon the Senate’s Rule­mak­ing Power.

Article I, Section 5, Clause 2 of the Consti­tu­tion author­izes each cham­ber of Congress to “determ­ine the Rules of its Proceed­ings.”[41]  The Rule­mak­ing Clause was never debated at the Consti­tu­tional Conven­tion, nor was it the subject of any public debate surround­ing the adop­tion of the Consti­tu­tion – the provi­sion appar­ently provoked no contro­versy.[42]  But, lack of argu­ment should not be taken to mean that this provi­sion is insig­ni­fic­ant.  Instead, the power to set its proced­ure is an obvi­ously vital aspect of Congress’ legis­lat­ive author­ity. 

The Rule­mak­ing Clause is neces­sary for each house to perform its consti­tu­tional lawmak­ing duties. While the Consti­tu­tion grants Congress “all legis­lat­ive Powers” within Article I,[43] and specifies that all legis­la­tion must “pass” both houses in order to become law,[44] it provides no guid­ance for legis­lat­ive proced­ure.  Without order­ing mech­an­isms of some kind, it is diffi­cult to imagine how Congress would be able to achieve a quorum, let alone determ­ine which national prob­lems require federal legis­lat­ive atten­tion or what solu­tions are most desir­able. As Justice Joseph Story, in his seminal treat­ise on consti­tu­tional law, put it: 

No person can doubt the propri­ety of the provi­sion author­iz­ing each house to determ­ine the rules of its 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.[45]

The Supreme Court has recog­nized that Congress’ rule­mak­ing author­ity is a key part of its legis­lat­ive power.  Accord­ingly, the exec­ut­ive and judi­cial branches cannot inter­fere with congres­sional rules on the grounds that “some other way would be better, more accur­ate, or even more just.”[46]  Even the Supreme Court lacks the power to ques­tion “the advant­ages or disad­vant­ages, the wisdom or folly” of any partic­u­lar rule.[47]  Indeed, to cripple the Senate or House’s abil­ity to set proced­ure would impinge upon their clear consti­tu­tional author­ity to do so, disrupt­ing the care­ful separ­a­tion of powers achieved by our Consti­tu­tion’s design. 

While Congress has broad discre­tion to set proced­ural rules, the House and Senate cannot pass rules that “ignore consti­tu­tional restraints or viol­ate funda­mental rights.”[48]  One such restraint is that Congress’ rule­mak­ing power is continu­ous, just like its other enumer­ated powers within Article I.  As the Court has explained, “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.”[49]  So, the D.C. Circuit, recog­niz­ing the continu­ous nature of the rule­mak­ing author­ity, has specific­ally held that a subsequent Congress may, by major­ity vote, disreg­ard proced­ural restric­tions meant to apply to future amend­ments of a partic­u­lar stat­ute.[50]   

There is little doubt that the House and the Senate under­stand both the signi­fic­ance and the continu­ous nature of their rule­mak­ing author­ity.  The House, of course, has histor­ic­ally exer­cised its power to estab­lish new rules at the start of each term, and form­ally recog­nizes its right to do so in the House Manual.[51]  Senate Rule V, of course, creates a default rule provid­ing that the Rules carry over until the Senate chooses to change them.  And, these rules have been subject only to relat­ively minor amend­ment over the years.  In less formal ways, however, the Senate changes its proced­ure constantly – through unan­im­ous consent agree­ments, for instance.  And, both cham­bers occa­sion­ally enact stat­utes with proced­ural restric­tions that allegedly apply to future Congresses.[52]  These stat­utes typic­ally contain disclaim­ers, however, explain­ing that these laws do not, in fact, reduce either house’s rule­mak­ing power.  Disclaimer or not, if a major­ity of a future House or future Senate disagrees with these proced­ural restric­tions, they frequently simply ignore them.[53]

By requir­ing 67 senat­ors to agree before allow­ing a vote on any rules change, Senate Rule XXII imposes a proced­ural barrier that makes even slightly contro­ver­sial change virtu­ally impossible to achieve.  If this rule were legally bind­ing, it would impinge upon future Senates’ rule­mak­ing author­ity, leav­ing them with less power than their contem­por­ary coun­ter­part in the House.  This result would be at odds with the clear language of the Rule­mak­ing Clause, which grants each cham­ber the same rule­mak­ing power.  Simil­arly, a legally-bind­ing 67 vote threshold for change would reduce the rule­mak­ing power of future Senates – a result contrary to the continu­ous nature of the Senate’s author­ity.  Indeed, it is hard to imagine any seri­ous argu­ment that the Senate could expressly impinge upon its other Article I powers in this way – by requir­ing 67 votes to stop debate on all future revi­sions to U.S. citizen­ship require­ments, for example.  In short, unless a major­ity can, in fact, effect rules change at the start of a new session, the current Rules are uncon­sti­tu­tional.  

B.                 If a Simple Major­ity Lacked the Power to Effect Rules Change, the Rules would Viol­ate the Consti­tu­tional Anti-Entrench­ment Prin­ciple.

If the Senate Rules could not be changed by a major­ity vote of future Senates, they would also viol­ate another funda­mental consti­tu­tional prin­ciple – that one legis­lature cannot bind future legis­latures by insu­lat­ing stat­utes or proced­ural rules from subsequent appeal.[54]  This anti-entrench­ment prin­ciple has deep roots in English parlia­ment­ary prac­tice.  In fact, in his famous comment­ar­ies on English law, William Black­stone put it unequi­voc­ally: “Acts of parlia­ment derog­at­ory from the power of subsequent parlia­ments bind not.”[55]  At the time of our coun­try’s found­ing, this prin­ciple was widely accep­ted as funda­mental.  Indeed, speak­ing to the House of Repres­ent­at­ives in 1790, James Madison addressed fears that a bill tempor­ar­ily estab­lish­ing the Nation’s capital in Phil­adelphia would later prevent the capital from moving to Wash­ing­ton D.C.  He explained:

But what more can we do than pass a law for the purpose [of making Wash­ing­ton the future capital]? It is not in our power to guard against a repeal. Our acts are not like those of the Medes and Persians, unal­ter­able. A repeal is a thing against which no provi­sion can be made. If that is an objec­tion, it holds good against any law that can be passed.[56]

Simil­arly, the Supreme Court has long held that legis­lat­ive entrench­ment is uncon­sti­tu­tional.  In 1810, Chief Justice John Marshall, recog­niz­ing that “one legis­lature cannot abridge the powers of a succeed­ing legis­lature,” asser­ted that “[t]he correct­ness of this prin­ciple, so far as respects general legis­la­tion, can never be contro­ver­ted.”[57]  Almost 200 years later, quot­ing Justice Marshall’s words, Justice Antonin Scalia noted that the Court’s cases “have uniformly endorsed this prin­ciple.”[58]   Indeed, a survey of the relev­ant case law confirms that the Supreme Court has reaf­firmed this “centur­ies-old concept”[59] time and time again.[60]

The anti-entrench­ment prin­ciple is groun­ded in notions of legis­lat­ive equal­ity, a concept closely related to ideas of popu­lar sover­eignty.  Each legis­lature, comprom­ised of repres­ent­at­ives duly elec­ted by the people, must be equally able to serve the public good.  As the Court once put it, “No one legis­lature can, by its own act, disarm their successors of any of the powers or rights of sover­eignty confided by the people to the legis­lat­ive body.”[61]   Or, in the eloquent words of Professor Julian Eule, later echoed by Professor Erwin Chemer­insky,

Just as the members of Congress lack power to extend their terms beyond those set by the Consti­tu­tion, they may not under­mine the spirit of that docu­ment by immut­ably extend­ing their influ­ence beyond those terms.  Each elec­tion furnishes the elect­or­ate with an oppor­tun­ity to provide new direc­tion for its repres­ent­at­ives. This process would be reduced to an exer­cise in futil­ity were the newly elec­ted repres­ent­at­ives bound by the policy choice of a prior gener­a­tion of voters.[62]

The anti-entrench­ment prin­ciple is thus forward look­ing.  It prohib­its entrench­ing provi­sions – like super­ma­jor­ity voting rules – from hinder­ing the major­ity-suppor­ted pref­er­ences of legis­latures to come.  For this reason, this prin­ciple is not implic­ated when the Senate adopts a super­ma­jor­ity voting require­ment that lasts through­out a single congres­sional session.  While tempor­ary super­ma­jor­ity require­ments may, in effect, offend the major­it­arian philo­sophy under­ly­ing our Consti­tu­tion,[63] such require­ments at least repres­ent the proced­ural pref­er­ences of the present major­ity. 

Some argue that the anti-entrench­ment prin­ciple does not apply to proced­ural require­ments like the Senate Rules.[64]  This argu­ment is based, however, on an unten­able distinc­tion between substance and proced­ure.  As modern social science research has demon­strated time and again, rules of proced­ure regu­larly determ­ine legis­lat­ive outcome. For instance, stud­ies have shown that a defin­it­ive major­ity opin­ion very rarely exists. Instead, a legis­lature is typic­ally composed of multiple and equally-strong compet­ing interests, any of which can win depend­ing on the struc­ture of the legis­lat­ive process.[65]  So, in a situ­ation in which option A is preferred over option B, but not over option C, option A can win or lose depend­ing on the order in which altern­at­ives are presen­ted. In this way, proced­ure is virtu­ally insep­ar­able from legis­lat­ive outcome.[66]

Indeed, the fierce contro­versy over the rules govern­ing the fili­buster and cloture confirms this real­ity.  It is hard to deny that, in today’s Senate, no bill or nomin­a­tion can pass without obtain­ing support from the 60 senat­ors needed to cut off debate.  It is essen­tially beside the point if a law or nominee has major­ity support because a super­ma­jor­ity agree­ment must come first.  The result is a de facto 60-vote require­ment for ordin­ary Senate busi­ness that is func­tion­ally indis­tin­guish­able from a stat­ute directly requir­ing 60 votes to pass, amend or repeal future legis­la­tion.  Like­wise, there is little doubt that Senate Rule XXII – setting a 67 vote threshold for cloture on any attempt to amend the Senate Rules – combined with Senate Rule V effect­ively insu­lates the Senate Rules, includ­ing the cloture rule, from revi­sion.   

To further illus­trate this point, consider if the Senate, in passing this year’s health care reform act, amended the Senate Rules to require unan­im­ous consent to cut off debate on any future attempt to amend or repeal that legis­la­tion.  Tech­nic­ally, of course, this would be “just” a proced­ural require­ment; but the effect, if legally bind­ing, would be to protect the substance of health care reform from future revi­sion or repeal.  There is little doubt that this would consti­tute imper­miss­ible entrench­ment – and it is logic­ally no differ­ent than the current rule requir­ing 67 votes to revise the Senate Rules.

For these reas­ons, a major­ity of the Senate must main­tain the author­ity to over­ride the Senate Rules and force a vote on any proposed proced­ural change.  If not, the Senate Rules would imper­miss­ibly bind future Senates in a manner repug­nant to our consti­tu­tional tradi­tion.   

C.         If a Simple Major­ity Lacked the Power to Effect Rules Change, the Rules would Blunt Legis­lat­ive Account­ab­il­ity.

As explained above, bind­ing entrench­ment of the Senate Rules would improp­erly impinge upon the Senate’s rule­mak­ing power and would viol­ate the anti-entrench­ment prin­ciple.  In effect, it would also blunt legis­lat­ive account­ab­il­ity, a core demo­cratic value.

Polit­ical account­ab­il­ity is a neces­sary part of our system of repres­ent­at­ive govern­ment by design.  For our demo­cracy to prop­erly func­tion, the Amer­ican people must be able to monitor elec­ted offi­cials and hold them respons­ible for their decisions.  Accord­ingly, the Court has repeatedly emphas­ized that demo­cracy requires elec­ted offi­cials to be answer­able to voters for their policy choices.[67]  Indeed, in the Court’s words, “free­dom is most secure if the people them­selves . . . hold their federal legis­lat­ors to account for the conduct of their office.”[68]     

On their face, by tying today’s Senate to the proced­ural pref­er­ences of a Senate long past, the Senate Rules disrupt “the direct line of account­ab­il­ity” that is supposed to exist “between the National Legis­lature and the people who elect it.”[69]  The people, no matter how much they may dislike the current Senate Rules, are left without effect­ive recourse.  The offi­cials respons­ible for the rules are, of course, no longer in office.  The current repres­ent­at­ives are in a disad­vant­aged posi­tion vis-à-vis the Senate past – their abil­ity to respond to their constitu­ent’s current desires is greatly frus­trated.

Moreover, by insu­lat­ing the 60-threshold cloture rule from amend­ment, the Senate Rules perpetu­ate the account­ab­il­ity prob­lems now posed by the fili­buster itself.  As I have explained in earlier testi­mony,[70] today’s fili­busters blur who is respons­ible for the Senate’s fail­ure to address prob­lems.  Voters are left to wonder: Should we fault the major­ity for fail­ing to over­ride the fili­buster or should we hold the minor­ity respons­ible for obstruct­ing the major­ity’s will?  Who is truly to blame? 

Simil­arly, a success­ful fili­buster prevents senat­ors from enga­ging in genu­ine decision-making.  Rather than being forced to take a stand on a partic­u­lar policy, senat­ors cast a proced­ural vote concern­ing whether to invoke cloture and end debate.  When cloture fails and a substant­ive vote is never taken, constitu­ents are left to guess how their repres­ent­at­ives would have voted on the under­ly­ing policy matter, thereby further­ing the inform­a­tion defi­cits that already plague the elect­or­ate.[71]

Blunt­ing account­ab­il­ity is argu­ably the most consti­tu­tion­ally-prob­lem­atic feature of the modern fili­buster because it impairs the most import­ant check on govern­ment power – the voters.  The Senate Rules, if legally bind­ing, not only force the current fili­buster rules to continue, thereby continu­ing the account­ab­il­ity concerns that follow from it, they also diffuse respons­ib­il­ity for the Senate’s proced­ural prob­lems – thus adding another way for senat­ors to avoid blame.  This result takes us far from the demo­cracy our Framers envi­sioned.     

III.       The Senate’s Over­lap­ping Term Struc­ture Cannot Justify Uncon­sti­tu­tional Entrench­ment. 

There is, primar­ily, one defense offered to justify bind­ing future Senates to the Senate Rules – the notion that the Senate’s over­lap­ping term struc­ture justi­fies entrench­ment because there are no past or future Senates, just one continu­ous Senate.  As Professor Aaron-Andrew Bruhl force­fully argues in his recent law review article on the topic, however, the Senate’s struc­ture cannot defend entrench­ment of the Senate Rules.[72]  

To start, there is no reason to believe that the Framers inten­ded for the struc­tural differ­ences between the Senate and the House to reduce the scope of the Senate’s rule­mak­ing power.  The Senate’s over­lap­ping terms were prin­cip­ally meant to stabil­ize the insti­tu­tion by ensur­ing greater predict­ab­il­ity of its member­ship.  The Framers hoped that this stabil­ity would inspire confid­ence in the U.S. govern­ment, thereby strength­en­ing our inter­na­tional image and curb­ing domestic corrup­tion.[73]  But, there is no evid­ence that the Framers also wished that the Senate’s rules be insu­lated from change.[74]  Instead, the Framers expressly gran­ted each cham­ber the same continu­ous power to estab­lish their proced­ural rules.

Indeed, imagine if that first Senate had adop­ted perman­ent rules of proceed­ing when it first met on March 4, 1789 – at a time when the Senate repres­en­ted 11 states. [75]  The result today would be ludicrous.  The first states’ outdated proced­ural pref­er­ences would control the other 39 states which had either not yet rati­fied the Consti­tu­tion or were not yet in exist­ence.  It is hard to believe that the “continu­ing body” theory could justify that outcome.   

Moreover, there are seri­ous prac­tical incon­sist­en­cies with the “continu­ing body” defense.[76]  In many ways, the Senate does not act like a continu­ing body – instead, it treats the start and finish of the two-year congres­sional term as a signi­fic­ant event.  The most notable, perhaps, is that pending bills – even those that have been passed by the House and approved by Senate commit­tees – die at the end of each Congress.  Simil­arly, pending nomin­a­tions cannot survive the end of a term, but must be resub­mit­ted by the Pres­id­ent to the next Congress.[77]  And, the Senate’s power to confine non-members for contempt is typic­ally limited to a legis­lat­ive session.  Even at its farthest reach of author­ity, the Senate can never confine someone for longer than a congres­sional term.[78]

Finally, even assum­ing that the Senate is a “continu­ing body” in some mean­ing­ful way, this alone cannot justify entrench­ment of the Senate Rules.  To assume that today’s Senate shares an iden­tity with yester­day’s Senate does not explain why the Senate has the power to commit itself for perpetu­ity.  The Senate, as an agent of the people, derives its power from those it repres­ents.  As Professor Bruhl recog­nizes, this truth raises key ques­tions about the scope of the Senate’s author­ity:

[D]oes it extend to making [self-bind­ing] commit­ments? I would say no.  The [Senate’s] prin­cipals . . . have a way of making polit­ical commit­ments. The prin­cipals do this through making and amend­ing a consti­tu­tion. The Senate, through its commit­ment to a set of rules that are not laid down in the Consti­tu­tion, has arrog­ated that constitutive power to itself.[79]

In today’s demo­cracy, voters grant fresh repres­ent­at­ive author­ity to the Senate each elec­tion cycle.  With each new Congress, there are new members in the Senate who repres­ent new interests and new constitu­ents.  There is no reason to believe that voters – who, each elec­tion, select repres­ent­at­ives to address this coun­try’s current and future prob­lems – intend to allow the Senate to bind itself to, perhaps archaic, proced­ural rules.  After all, self-bind­ing raises all of the same prob­lems with demo­cratic repres­ent­a­tion and legis­lat­ive account­ab­il­ity raised by entrench­ment – threats to demo­cracy which ulti­mately harm the people them­selves.  

*****************

As this testi­mony has set forth, the Senate has wrestled with its rules govern­ing debate and cloture for over a century.  Again and again, senat­ors have agreed that a simple major­ity of the Senate has the consti­tu­tional author­ity to cut off debate and vote to amend the Rules at the start of a new Congress, notwith­stand­ing any contrary tradi­tions or provi­sions within the Rules them­selves.  For the reas­ons explained above, their posi­tion is undoubtedly correct.  The Senate has continual consti­tu­tional author­ity to “determ­ine the Rules of its Proceed­ings.”  Under the consti­tu­tional prin­ciple prohib­it­ing legis­lat­ive entrench­ment, the Senate cannot trap future Senates under super­ma­jor­ity barri­ers to change.  Entrench­ment not only imper­miss­ibly detracts from the Senate’s own power and viol­ates anti-entrench­ment prin­ciples, it also blunts legis­lat­ive account­ab­il­ity.  In this way, the current Senate Rules disrupt one of the most import­ant checks on govern­ment power – the voters’ abil­ity to hold their repres­ent­at­ives respons­ible for their legis­lat­ive actions. 


[1] The Bren­nan Center for Justice at NYU School of Law is a nonpar­tisan law and policy insti­tute that

focuses on funda­mental issues of demo­cracy and justice.  Today’s testi­mony supple­ments the Center’s earlier submis­sions, avail­able at www.bren­nan­cen­ter.org.

[2] Senate Rule XXII, § 2.  

[3] Id

[4] See Gregory J. Wawro & Eric Schick­ler, Fili­buster: Obstruc­tion and Lawmak­ing in the U.S. Senate 62–87 (2006); Sarah Binder & Steven Smith, Polit­ics or Prin­ciple? Fili­bus­ter­ing in the United States Senate 161–197 (1997); Martin B. Gold & Dimple Gupta, The Consti­tu­tional Option to Change Senate Rules and Proced­ures: A Major­it­arian Means to Over­come the Fili­buster, 28 Harv. J.L. & Pub. Pol’y 205, 217–60 (2004); Cath­er­ine Fisk & Erwin Chemer­insky, The Fili­buster, 49 Stan. L. Rev. 181, 209–213 (1997); see also John C. Roberts, Major­ity Voting in Congress: Further Notes on the Consti­tu­tion­al­ity of the Senate Cloture Rule, 20 J.L. & Pol. 505, 513–518 (2004).

[5] Fisk & Chemer­insky, supra n. 4, at 183–184.

[6] See Gregory Koger, Fili­bus­ter­ing: A Polit­ical History of Obstruc­tion in the House and Senate 44, Fig. 3.1 (2010).

[7] Binder & Smith, supra n. 4, at 60–63; Wawro & Schick­ler, supra n. 4, at 159–179; Fisk & Chemer­insky, supra n. 4, at 190–193.

[8] Binder & Smith, supra n. 4, at 63–68; Wawro & Schick­ler, supra n. 4, at 69–71; Fisk & Chemer­insky, supra n. 4, at 195–199.

[9] Wawro & Schick­ler, supra n. 4, at 72.

[10] Id. at 73 (quot­ing Congres­sional Globe).

[11] The first House and the first Senate had nearly identical rule­books and both included a motion for a “previ­ous ques­tion.”  Today, the House uses this motion to allow a simple major­ity to cut off debate.  The Senate removed this provi­sion in 1806, not due to a desire to promote unlim­ited debate, but because it was unne­ces­sary.  At the time, the Senate was a small, fraternal place with little need to reign in relent­less obstruc­tion – as a result, the previ­ous ques­tion motion was rarely used.  See Binder & Smith, supra n. 4, at 35–39.      

[12] Wawro & Schick­ler supra n. 4, at 73–76; Binder & Smith, supra n. 4, at 74–75.

[13] Wawro & Schick­ler supra n. 4, at 72–87; see also By Aid of the Chair, WASH. POST, Jan. 23, 1891.  

[14] The Senate’s New Rule, WASH. POST, Dec. 28, 1890.

[15] Key Repub­lic­ans backed away from both the civil rights initi­at­ive and the proposed proced­ural reform, view­ing them to be inex­tric­ably linked.  Wawro & Schick­ler supra n. 4, at 76–86. 

[16] “In a formal state­ment to the coun­try that bristled with the indig­na­tion he felt,” Pres­id­ent Woodrow Wilson chas­tised the group of senat­ors stand­ing in his way as a “little group of will­ful men repres­ent­ing no opin­ion but their own.”  Sharp Words by Wilson, N.Y.Times, Mar. 5, 1917.  Accord­ing to Pres­id­ent Wilson, their actions “rendered the great Govern­ment of the United States help­less and contempt­ible.”  Id.

[17] 55 Cong. Rec. 17 (1917); Gold & Gupta, supra n. 4, at 208.

[18] 55 Cong. Rec. 17, 18 (1917); Gold & Gupta, supra n. 4, at 225–226.

[19] 55 Cong. Rec. 18 (1917); Gold & Gupta, supra n. 4, at 225–226.

[20] 55 Cong. Rec. 18, 45 (1917); Gold & Gupta, supra n. 4, at 225–226.

[21] Under Senate Rule XXII, § 2 as origin­ally enacted, two-thirds of senat­ors present and voting had to vote affirm­at­ively in order to invoke cloture “upon any pending meas­ure.”  In subsequent years, this language was inter­preted as apply­ing to substant­ive legis­la­tion only, allow­ing obstruc­tion­ists to fili­buster proced­ural motions without any possib­il­ity of cloture.  This loop­hole was closed in 1949, when a reform proposal was enacted to allow cloture on any pending busi­ness by two-thirds vote of the entire Senate, except for motions to change the Senate Rules.  A decade later, in 1959, Rule XXII was again amended; this time, to allow cloture by a two-thirds vote of senat­ors present and voting on all motions, includ­ing those to change the rules.  In 1975, cloture voting require­ments were decreased to a three-fifths vote for all matters except motions to change the Senate Rules.  

[22] For a detailed descrip­tion of these reform attempts, see Gold & Gupta, supra n. 4, at 230–247.  See also Binder & Smith, supra n. XX, at 168–76; Roberts, supra n. 4, at 516; Fisk & Chemer­insky, supra n. 4, at 199–200.

[23] 103 Cong. Rec. 178 (1957).

[24] Id. at 178–789. 

[25] See, supra n. 21, for an explan­a­tion of the ways the cloture rule has been amended over the years.    

[26] See 86 Cong. Rec. 124 (1959).  Senator Jacob Javits (R-NY), for one, vehe­mently criti­cized the proposed rule: “Are we going to follow the Consti­tu­tion of the United States or are we going to follow a rule made by one Senate for all succeed­ing time, to bind all Senates? In other words, are we going to try to give ourselves an extra-consti­tu­tional power or are we going to obey the Consti­tu­tion?”   

[27] Id. at 447.

[28] Id. at 450.

[29] 86 Cong. Rec. 124, 494 (1959); Gold & Gupta, supra n. 4, at 246–247.

[30] 115 Cong. Rec. 593 (1969).

[31] 90 Cong. Rec. 994 (1967); Gold & Gupta, supra n. 4, at 251–52.

[32] For a thor­ough descrip­tion of the 1975 reform efforts, see Gold & Gupta, supra n. 4, at 252–59.  See also Binder & Smith, supra n. 4, at 181–82; Roberts, supra n. 4, at 516–517; Fisk & Chemer­insky, supra n. 4, at 212–13.

[33] See 94 Cong. Rec. 3839–40 (1975). 

[34] Id. at 3854. 

[35] Id. at 4116. 

[36] 121 Cong. Rec. 5651–5652 (1975).

[37] Id. at 5249.

[38] Id. at 5251.

[39] Charles Tiefer, Congres­sional Prac­tice & Proced­ure 705 (1989).

[40] Binder & Smith, supra n. 4, at 182. 

[41] U.S. Const. art. 1, § 5, cl. 2.

[42] See Roberts, supra n. 4, at 532; Aaron–Andrew P. Bruhl, Bury­ing the “Continu­ing Body” Theory of the Senate, 95 Iowa L. R. 1401, 1424 (2010).

[43] U.S. Const. art. I, § 1.

[44] U.S. Const. art I, § 7.

[45] Joseph Story, Comment­ar­ies on the Consti­tu­tion of the United States § 835 (1833).

[46] United States v. Ballin, 144 U.S. 1, 5 (1892); accord United States v. Smith, 286 U.S. 6, 33 (1932).

[47] Ballin, 144 U.S. at 5; accord Smith, 286 U.S. at 48 (“The Consti­tu­tion commits to the Senate the power to make its own rules; and it is not the func­tion of the Court to say that another rule would be better.”).

[48] Ballin, 144 U.S. at 5.

[49] Id.

[50] Metzen­baum v. Fed. Energy Regu­lat­ory Comm’n, 675 F.2d 1282, 1286–88 (D.C. Cir. 1982).  Specific­ally, the plaintiffs chal­lenged the valid­ity of amend­ments to a federal law, alleging that the amend­ments were made in viol­a­tion of proced­ures set out by the stat­ute itself.  The court found that Congress’ continual right to exer­cise its rule­mak­ing power was limited only by other aspects of the Consti­tu­tion. Thus, Congress’ decision to over­ride these proced­ural limit­a­tions was valid.  See also Roberts, supra n. 4, at 535.  

[51] Roberts, supra n. 4, at 536.

[52] See, e.g., Roberts, supra n. 4, at 536–37 (discuss­ing rules stat­utes gener­ally); Aaron-Andrew P. Bruhl, Using Stat­utes to Set Legis­lat­ive Rules: Entrench­ment, Separ­a­tion of Powers, and the Rules of Proceed­ings Clause, 19 J.L. & Pol. 345 (2003) (focus­ing on so-called “fast track” legis­la­tion”).

[53] See Bruhl, supra n. 52, at 366–71.  As Professor Bruhl explains:

If history is a reli­able guide, the disclaimer clause is prob­ably unne­ces­sary. The senti­ment that the clause expresses – that Congress may not impair its rules power by stat­ute – finds over­whelm­ing support in past parlia­ment­ary prac­tice. For while stat­utes regu­lat­ing internal proced­ures have a long history, so too does Congress’s belief that it may ignore them, even in the days before the disclaimer clause.

Id. at 366.

[54] While legis­lat­ive entrench­ment is prohib­ited, consti­tu­tional entrench­ment is considered to be differ­ent and permiss­ible.  See Marbury v. Madison, 5 U.S. 137, 177 (1803) (distin­guish­ing consti­tu­tional provi­sions from ordin­ary legis­la­tion which is “alter­able when the legis­lature shall please to alter it”); see also John O. McGin­nis & Michael B. Rappa­port, Symmet­ric Entrench­ment: A Consti­tu­tional and Norm­at­ive Theory, 89 Va. L. Rev. 385, 417–439 (2003) (defend­ing Consti­tu­tion as bene­fi­cial example of symmet­ric entrench­ment).

[55] 1 William Black­stone, Comment­ar­ies *90.

[56] McGin­nis & Rappa­port, supra n. 54, at 206 (citing 2 Annals of Cong. 1666 (1790)).

[57] Fletcher v. Peck, 10 U.S. 87, 135 (1810).

[58] Lock­hart v. United States, 546 U.S. 142, 147 (2005) (Scalia, J., concur­ring).

[59] United States v. Winstar, 518 U.S. 839, 872 (1996).

[60] See, e.g., id.; Reicheld­er­fer v. Quinn, 287 U.S. 315, 319 (1932) (“[T]he will of a partic­u­lar Congress does not impose itself upon those in succeed­ing years.”); Connecti­cut Mut. Life Ins. Co. v. Sprat­ley, 172 U.S. 602, 621 (1899) (“[E]ach subsequent legis­lature has equal power to legis­late upon the same subject.”); Douglas v. Kentucky, 168 U.S. 488, 497–98 (1897); Butcher’s Union Co. v. Cres­cent City, 111 U.S. 746, 751 (1884); Stone v. Missis­sippi, 101 U.S. 814 (1880); Newton v. Comm’rs, 100 U.S. 548 (1879); Boyd v. Alabama, 94 U.S. 645, 650 (1877); Ohio Life Ins. & Trust Co. v. Debolt, 57 U.S. 416, 431 (1850).

[61] Ohio Life Ins., 57 U.S. at 431.

[62] Fisk & Chemer­insky, supra n. 4, at 249 (quot­ing Julian N. Eule, Temporal Limits on the Legis­lat­ive Mandate: Entrench­ment and Retro­activ­ity, 12 Am. B. Found. Res. 379, 384–425 (1987)).

[63] There is little doubt that our Framers envi­sioned that major­ity voting rules would govern ordin­ary legis­lat­ive busi­ness.  See Binder & Smith, supra n. 4, at 30–33; Roberts, supra n. 4, at 523–531. Moreover, as legal schol­ars have force­fully argued, the term “passed” in Article I, section VII of the Consti­tu­tion embod­ies a prin­ciple of major­it­ari­an­ism that binds both cham­bers of Congress.  See Josh Chafetz & Michael Gerhardt, Debate: Is the Fili­buster Consti­tu­tional?, 158 U. Pa. L. Rev. PENNum­bra 245 (2010) (Chafetz Open­ing Stmt.); Jed Ruben­feld, Rights of Passage: Major­ity Rule in Congress, 46 Duke L.J. 73 (1996).  

[64] See, e.g., Virgina A. Seitz & Jospeh R. Guerra, A Consti­tu­tional Defense of “Entrenched” Senate Rules Govern­ing Debate, 20 J.L. & Pol. 1, 22–31 (2004).  See Roberts, supra n. 4, at 543–46, for a thor­ough response to this partic­u­lar argu­ment. See John C. Roberts & Erwin Chemer­insky, Entrench­ment of Ordin­ary Legis­la­tion: A Reply to Profess­ors Posner and Vermule, 91 Cal. L. Rev. 1773 (2003), for a complete repu­di­ation of Profess­ors Seitz and Guer­ra’s article. 

[65] See, e.g., Richard D. McKelvey, Intrans­it­iv­it­ies in Multi-Dimen­sional Voting Models and Some Implic­a­tions for Agenda Control, 12 J. Econ. Theory 472, 480–481 (1976).

[66] See William H. Riker & Barry R. Wein­gast, Consti­tu­tional Regu­la­tion of Legis­lat­ive Choice: The Polit­ical Consequences of Judi­cial Defer­ence to Legis­latures, 74 Va. L. Rev. 373, 383–385 (1988).

[67] See Jane Schac­ter, Ely and the Idea of Demo­cracy, 57 Stan. L. Rev. 737, 742–45 (2004) (survey­ing “account­ab­il­ity-rein­force­ment cases”); see, e.g., Cook v. Gralike, 531 U.S. 510 (2001); Printz v. United States, 521 U.S. 898, 920 (1997) (“The Consti­tu­tion thus contem­plates that a State’s govern­ment will repres­ent and remain account­able to its own citizens.”); New York v. United States, 505 U.S. 144, 168 (1992) (inval­id­at­ing federal “command­eer­ing” provi­sion because “where the Federal Govern­ment compels States to regu­late, the account­ab­il­ity of both state and federal offi­cials is dimin­ished”); Missouri v. Jenkins, 495 U.S. 33, 69 (1990) (“In our system ‘the legis­lat­ive depart­ment alone has access to the pock­ets of the people’ . . . for it is the Legis­lature that is account­able to them and repres­ents their will.”). 

[68] Cook, 531 U.S. at 528.

[69] Id.

[70] Hear­ing on Examin­ing the Fili­buster: History of the Fili­buster 1789–2008 Before the S. Comm. on Rules & Admin., 111th Cong. (2010) (testi­mony of Mimi Marzi­ani & Diana Lee, Bren­nan Center for Justice at NYU School of Law), avail­able at http://rules.senate.gov/public/?a=Files.Serve&File_id=a36a886b-dcaa-4290-a8c8-cb737f­b16938.

[71] See Schac­ter, supra n. 67, at 756 (“One need not demean the broad public to say that research has over­whelm­ingly indic­ated that many voters simply don’t know very much about legis­lat­ive policy or polit­ics.”) & n.90 (citing vari­ety of stud­ies).  Even worse, today’s fili­busters are often silent affairs, making it even harder – if not impossible – to discern who is behind the obstruc­tion.  This routine lack of trans­par­ency diffuses legis­lat­ive account­ab­il­ity even further. 

[72] Bruhl, supra n. 42. The discus­sion here owes much to his persuas­ive analysis.

[73] See The Feder­al­ist No. 62 (Barnes & Noble Ed., 2006) (J. Madison); Vik D. Amar, The Senate and the Consti­tu­tion, 97 Yale L.J. 1111, 1118 (1988).  As James Madison concluded, “[n]o govern­ment, any more than an indi­vidual, will long be respec­ted without being truly respect­able; nor be truly respect­able, without possess­ing a certain portion of order and stabil­ity.”       

[74] The notable excep­tions are those few proced­ural require­ments that are set by consti­tu­tional mandate, like the provi­sion specify­ing that a major­ity consti­tutes a quorum.  See Bruhl, supra n. 42, at 1443 & n.145. 

[75] See Origins and Devel­op­ment, U.S. Senate, http://www.senate.gov/artandhis­tory/history/common/brief­ing/Meet­ing_Places_Quar­ters.htm (last visited Sept. 17, 2010). 

[76] See Bruhl, supra n. 42, at 1444–1456 for a detailed expos­i­tion of these argu­ments.

[77] Id. at 1445 (citing Martin B. Gold, Senate Proced­ure and Prac­tice 154–55 (2004)).

[78] Id. at 1448–54.

[79] Id. at 1430 (emphasis added).