Last month I had the pleasure of participating in the International Conference on Legislation and Law Reform, which was held at AU’s Washington College of Law. During one of the plenary sessions on U.S. legislative drafting, a Dutch lawyer asked about the practice of “discontinuity” in Congress. I am not sure the panelists understood what this term meant (I know I didn’t), but the lawyer elaborated that he was asking whether legislation had to pass within a certain period of time. The panelists then explained that bills must pass both houses within the two-year congressional term and that all unfinished legislative business dies at the end of each congress.
This practice is known, at least internationally, as one of “discontinuity” because legislative business does not continue past the expiration or dissolution of the legislature. I asked the Dutch lawyer later whether there are legislatures which follow the opposite practice of allowing legislation to continue even though a new legislature has been elected. He said there are, including the Netherlands and the EU Parliament. In these jurisdictions bills can remain “live” for years or even decades after they are introduced. In some cases, the original sponsor of the measure is no longer in the legislature so there is no one who can formally withdraw it.
There apparently is not a lot of literature on discontinuity, but one recent article discusses it in some depth. SeeRivka Weill, The Living-Dead, 38 Fordham Intl L. J. 387 (2015). Professor Weill explains that legislative discontinuity is “the prevailing norm in both presidential and parliamentary systems.” Id.at 389. There are, however, exceptions, including the Netherlands and the EU Parliament (so that checks out). Id.Another exception is Israel, and Weill (who is Israeli) focuses on the decision of the Knesset to adopt a rule of continuity in the 1960s.
She describes two different schools of thought within the Knesset. The pro-continuity side saw the Knesset as a continuing body. Id.at 447. This position, according to Weill, rested on a conception of the legislature as having “perpetuity and continuity similar to an artificial body, like a corporation.” Id. at 448. Under this vision, the continuity of the legislature is maintained by the passage of sovereignty from one assembly to another, just as in a monarchy the sovereignty of the King’s person passes in death to the natural body of his heir. Id.
The discontinuity side, on the other hand, believed that “each parliament is born anew.” Id.at 447. Weill argues that this conception is fundamental to representative government and that the failure to follow it “severs the link between legislative cycles and election cycles, and thus eviscerates the significance of elections.” Id.at 413. By contrast, the pro-continuity argument is mistaken because in Israel and other liberal democracies “the continuity of sovereignty rests with the people, not with their representatives.” Id. at 448. Thus, popular sovereignty “is manifested in the real power of constituents to influence the content of laws by breaking the legislative continuity and electing new representatives.” Id.
Weill also contends that as a matter of actual practice, the Knesset has not regarded itself as a continuing body. Moreover, even in the U.S. Senate, which does consider itself to be a continuing body, “the principle of discontinuity of the legislative process applies, as bills that do not become law within two years are dead.” Id.at 449.
One of the interesting aspects of this Israeli debate related to the discussion of British parliamentary practice. See id.at 404-06, 409-10. Weill explains that Great Britain was viewed as the symbol of discontinuity and that both supporters and opponents of the continuity proposal used its example in their arguments. Id.
Here, some background on British practice may be useful.
Discontinuity in Britain
Historically, discontinuity in Britain stems from the crown’s prerogative powers of summoning, proroguing and dissolving parliament. Once a parliament was summoned, the king could either use prorogation to end its session or dissolution to end the parliament altogether:
The Tudor and Stuart monarchs summoned parliaments not merely to request tax revenue, but also to enact policies. They also relied on prorogation to prolong the life of a favourable rather than risk dissolving it and summoning a new, potentially less pliable parliament. For example, Henry VIII used prorogation to extend the life of the Reformation Parliament to seven years; it sat through seven sessions between 1529 and 1536 and passed a variety of statutes that broke with the Holy See and established England as an independent Protestant kingdom. Charles II used prorogation to prolong the life of the Cavalier Parliament and its Royalist majority from 1661 to 1679. The Stuarts also expressed their hostility toward what they regarded as parliamentary encroachment on Divine Right by dissolving pesky parliaments. The Sovereign thus determined at his own discretion both the duration of each individual parliament through prorogation and the number of years between parliaments through dissolution.
James W. J. Bowden, Reining in the Crown’s Power on Dissolution: The Fixed-Term Parliaments Act of the United Kingdom versus The Fixed-Election Laws in Canada19 (June 4, 2013). Either prorogation (end of a session) or dissolution (end of a parliament) resulted in the death of pending legislative business. See 1 William Blackstone, Commentaries on the Laws of England186-88 (1765).
As Parliament grew stronger, these royal prerogatives were to a large extent limited by statute and practice. Bowden, supra, at 19-22. Eighteenth century parliaments had a statutory maximum life of seven years and the dissolution of one parliament was routinely followed by the summoning of a new parliament and accompanying elections for the House of Commons.See1 Blackstone, at 177-78, 189.
Even today, the queen formally exercises the powers of prorogation and dissolution, though in practice she does not exercise her own discretion but acts on the advice of the prime minister. SeeWilliam McKay & Charles W. Johnson, Parliament & Congress: Representation & Scrutiny in the Twenty-First Century33, 123 (2010). A new parliament is summoned by the crown and the parliament ends when It is dissolved by royal proclamation or (less commonly) by the passage of time. Id. Parliament continues to follow a rule of both legislative and sessional discontinuity (or, as it is sometimes called, “sessional cut-off”). However, sessional discontinuity is no longer absolute as some legislation can carry over from session to session. Id. at 465-66; Weill, 38 Fordham Intl L. J. at 404 n.74, 409-10.
Back to the Israeli Debate
As noted above, the British experience was important in the Israeli debate over continuity. Thus, “opponents of continuity cited the British law as an example of the absence of continuity even between one parliamentary session and the next.” Weill, 38 Fordham Intl L. J. at 404. Supporters of continuity responded that “the British law does not reflect the democratic principle of legislative discontinuity following elections, since no elections were held between one session and the next, but nevertheless British bills ‘die’ at the end of the session.” Id.at 405. Instead, “British law reflects the King’s prerogative to control Parliament by ending a parliamentary session (prorogation) and terminating its legislative work.” Id.
Weill contends that these pro-continuity arguments were misleading because Britain follows both legislative and sessional discontinuity. Thus, although Britain has modified the rule of sessional discontinuity in recent years, “bills [still] cannot be carried over from one parliament to the next.”Id.at 410. While sessional discontinuity reflected a royal prerogative designed to check the parliamentary power, legislative discontinuity was based on the very different “principle of parliamentary sovereignty, [under which] Parliament may not shackle successor parliaments to its decisions.” Id.
This aspect of the debate is of particular interest (to me, anyway) because in many ways it echoes an argument that took place in the U.S. Congress nearly two centuries earlier. In 1790 the First Congress debated whether to adopt a sessional discontinuity rule such as existed in Britain. Proponents of the rule argued that it was supported by the “uniform practice of Parliament,” which “on long experience” had found it “to be attended with the least inconvenience to commence all their proceedings anew at the commencement of a new session.” I Annals of Congress 1084 (1790) (Rep. Lee). Opponents, on the other hand, contended that the British practice was inapplicable to the United States because the former was founded on royal prerogative. SeeI Annals of Congress 1092-93 (1790) (Rep. Hartley); see alsoIX Documentary History of the First Federal Congress: The Diary of William Maclay and Other Notes on Senate Debates185 (Kenneth R. Bowling & Helen E. Veit, ed.) (Johns Hopkins Press 1988) (Senator Maclay explained that the practice of sessional discontinuity in parliament reflected the crown’s power to prorogue when parliament “went on what was considered forbidden ground;” however, these “reasons of conduct” had “no existence here” because “the president has no proroguing power” and cannot “check our deliberations.”).
What no one argued during the 1790 debate was that the alternative to sessional discontinuity was unlimited continuity such that bills introduced or passed in one house would live forever. Such a result almost certainly would have been noted in the debate, given that it would have represented a radical departure from existing practice in parliament and the state legislatures, and would have threatened serious constitutional problems with respect to the relations between the two houses (i.e.,one house passing a bill would give the other house the option of waiting in perpetuity to decide whether to complete legislative action). The fact that no one raised this problem suggests that representatives and senators in the First Congress understood (as later Israeli legislators perhaps did not) that legislative discontinuity would apply even if sessional discontinuity were not adopted.
Why Does It Matter?
I bring all this up (I know you are wondering) because two contemporary legal scholars have challenged the proposition that Congress is subject to a rule of legislative discontinuity. Most recently, Professor Sai Prakash of the University of Virginia Law School has written a paper, “Of Synchronicity and Supreme Law,” Virginia Pub. L. & Legal Research Paper No. 2018-04 (Jan. 1, 2018) (hat tip: Gerard Magliocca). Professor Prakash contends that the Constitution does not mandate a rule of legislative discontinuity, but only one of sessional discontinuity. Put in his terms, the Constitution provides an implied synchronicity requirement that both houses must act within a single congressional session for a bill to become a law. (Interestingly, Prakash also believes that a congressional session could last for as long as two years or perhaps even longer.) In Prakash’s view, however, there is no constitutional foundation for treating each two-year congress as the implied synchronicity period.
Even more radically, Professor Seth Barrett Tillman has argued that the Constitution does not provide any rule of discontinuity at all. See Seth Barrett Tillman, Noncontemporaneous Lawmaking: Can the 110thSenate Enact a Bill Passed by the 109thHouse?, 16 Cornell J. L. & Pub. Poly 331 (2007); Seth Barrett Tillman, Defending the (Not So) Indefensible,16 Cornell J. L. & Pub. Poly 363 (2007). Professor Tillman maintains that Congress and both its houses are continuing bodies such that legislation does not die at the end of each congress, but may continue to live indefinitely, just as in the Netherlands or Israel. Thus, in Tillman’s view one house may complete legislative action on a bill that was passed in the other house years or decades earlier.
Prakash and Tillman are wrong. Legislative discontinuity is not only the prevailing practice among all legislatures today, but it is and apparently has been the universal practice among Anglo-American legislatures and all others descended from the British model. There is every reason to believe that the framers wrote the Constitution with an understanding that legislative discontinuity was an inherent attribute of an elected legislature. Thus, the best reading of the Constitution is that it incorporates the idea that Congress, like other legislatures, is subject to “dissolution by the efflux of their time,” as Thomas Jefferson explained in his Manual of Parliamentary Practice. SeeHouse Rules and Manual §590 (108thCong. 2003). This in turn means that each two-year congressional election gives rise to a new congress, at the commencement of which all legislation must begin anew.
I will expand on these points in future posts.