Bench Memos

Harry Reid’s Entrenching Tool

John McCormack of The Weekly Standard draws our attention to a rather remarkable provision in Senate majority leader Harry Reid’s health-care bill–a provision questioned by Sen. Jim DeMint (R-SC) on the Senate floor yesterday.  In an apparent effort to prevent future Congresses from undoing his handiwork, Reid slipped language into the bill’s section on the “Independent Medicare Advisory Board” that says “[i]t shall not be in order in the Senate or the House of Representatives,” in general, to take up any proposal to interfere with the Board’s recommendations; and that “it shall not be in order” in either house to consider any legislation that would change anything about this subsection (d) in which Congress’s relationship to the Board is described; but that in the Senate, this barrier to legislative action may be waived by a vote of 60 senators (the same margin that applies in the case of cloture to end debate).

Sen. DeMint asked the presiding officer of the Senate–the apparently clueless Sen. Jeff Merkley (D-OR)–whether such a bar to legislative proposals being “in order” in this or any future Congress amounted to a change in the standing rules of the Senate.  (He asked the same about some other evident changes that appear elsewhere in subsection (d), such as a change to Rule XV on committee jurisdiction.)  It seems obvious that the answer is yes, since a predetermination that proposals of a certain description may not even be considered is a new internal norm of conduct governing the Senate’s (and the House’s) business.  If that is not a rule, what else can it be called?  When DeMint pressed the point, Merkley–clearly being fed his lines by the Senate parliamentarian sitting just below him–averred that the Reid provision was not a “rule change” but only a “procedure change.”  But this is incoherent, for there are no “procedures” in Senate business that are not governed by its rules.

Two questions arise about this effort by Sen. Reid to “armor up” a key provision of the health-care bill against future legislative repeal or alteration.  First, how does it affect the current conduct of Senate business?  As Sen. DeMint pointed out, while cloture to end debate on legislation ordinarily takes “three-fifths of all the Senators duly chosen and sworn” (60 senators when all seats are occupied), cloture on any proposed change to the Senate’s standing rules takes “two-thirds of the Senators present and voting,” or 67 senators if all 100 are on the floor.  (Both of these requirements are in Senate Rule XXII.)  Ironically, the two-thirds rule can be easier to satisfy when the active quorum of senators is smaller; it could take as few as 34 senators when a bare-minimum 51 senators are present.  But any time more than 90 senators are present, it will take more than 60 votes to end debate on any statute that works a change in the Senate’s standing rules.  Thus a good argument can be made that the mere 60 votes obtained in the recent cloture vote were insufficient to end debate on the Reid bill–because it contains at least one change to the Senate’s standing rules.  This is why Sen. Merkley manufactured the never-before-heard-of distinction between “rules” and “procedures” of the Senate.  But all the Democrats have to do is stick to this fiction (they control the chair, after all), since there is no way to get such a question adjudicated by a court.

The second question about this provision is, can it bind future Congresses as it purports to do?  Is it even constitutional? wonders Sen. DeMint.  There is some debate among scholars about the problem of “entrenchment,” as such efforts to bind the future are called; see here and here at the Volokh Conspiracy, for instance.  But this is a pretty extreme entrenchment.  It is both highly focused on particular matters that might arise in future Congresses, to the exclusion of other matters in general, and it is absolute rather than relative, not merely raising a high bar to future action (e.g., an extraordinary majority rule) but completely prohibiting consideration of what would otherwise be unobjectionable, routine legislative matters.  There are, it seems, historic examples of legislation that worked changes in the rules of either or both of the houses of Congress.  Since each house “determine[s] the Rules of its Proceedings” by majority vote (Art. I, § 5, cl. 2), the two houses can each change their rules by the simple-majority enactment of a statute they both pass.  But by the same token, each house can subsequently and separately change its rules, again by simple majority rule, in such a way as to obviate the effect of a previous rule change, even if it was embodied in a statute–because no statute can nullify the self-governing power each house possesses under Article I, section 5.

So where does this leave future Congresses if this provision is enacted?  In the Senate, by its own terms, it can be left in place and waived any time 60 senators so desire.  Or it can be obviated by a change of the rules by a simple majority–but the Senate rarely acts formally on its rules, which carry over from one Congress to the next when no action is taken on them.  Or, I suppose, in any future session a senator might introduce some forbidden matter, object to the chair’s ruling when it is held out of order, and obtain a nullification of the rule if he can persuade a majority to overrule the chair (see Senate Rule XX).  Since the rule is of dubious propriety, setting the kind of absolute barrier to action that we’re accustomed to seeing only in the Constitution itself, this third course would be the most satisfying, because it would amount to a repudiation and not a mere reversal of this so-called rule.

In the House, matters might be even simpler.  The Reid provision mentions no possibility of the rule being waived in the House.  But unlike the Senate, the House adopts its rules afresh, with any changes incorporated, at the beginning of each Congress every two years.  If this act passes, and the House does not explicitly incorporate the rule change by majority vote in January 2011, does the rule even exist?  Maybe not.  And if the Reid provision is not explicitly adopted by the House but is considered part of the House rules anyway, in rulings from the chair on certain matters being out of order, then as in the Senate such rulings may be appealed to the whole House and reversed by a simple majority (see House Rule I, par. 5).

In the end, it may not even be the best form of the question to ask, is it constitutional to attempt to bind the hands of future Congresses?  A better way to ask the question is, can today’s Congress get away with binding the hands of tomorrow’s?  The answer clearly is, only if tomorrow’s Congress lets it happen.  And there is nothing today’s Congress can do or say to assure that it will.