Category: Parliamentary Procedure (general)

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Why the Courts Have NOT Decided the Constitutionality of Proxy Voting

A few weeks ago the Supreme Court denied certiorari in a case brought by House Republicans to challenge the constitutionality of the House’s proxy voting rule, which allows members, during a period of “public health emergency,” to vote on legislation and other matters without being physically present. The effect of the Court’s decision was to leave standing the D.C. Circuit’s decision to affirm the district court’s dismissal of the lawsuit on grounds of the Speech or Debate Clause. Speaker Pelosi praised the Court’s action and declared “[b]oth the Constitution and more than a century of legal precedent make clear that the House is empowered to determine its own rules—and remote voting by proxy falls squarely within this purview.” Yesterday the Speaker, based on a notification from the Sergeant-at-Arms and the Office of Attending Physician, extended the period of proxy voting through March 30, 2022, at which point the “public health emergency” will have lasted almost two years.

Contrary to the Speaker’s suggestion, neither the Supreme Court’s action nor the rulings of the lower courts say anything about the constitutionality of proxy voting. To the contrary, both the constitutionality and necessity of the House’s rule remain live issues, and the House should not be misled into thinking that the courts have resolved them. Continue reading “Why the Courts Have NOT Decided the Constitutionality of Proxy Voting”

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History, Precedents, and Rule of Law

Apropos of nothing, I am republishing (ie, stealing) this post by a House parliamentarian, Max Spitzer, who is the precedents editor in the House Parliamentarian’s Office (Motto: please do not send us Liz MacDonough’s hate mail).

On May 31, 1789, James Madison, then a member of the House of Representatives during the First Congress, wrote a letter to Edmund Randolph, who would soon after be appointed the nation’s first Attorney General. In that letter, Madison discussed the current work of the House, in particular the relatively slow pace of deliberations. He wrote: “[I]n every step the difficulties arising from novelty are severely experienced, and are an ample as well as just source of apology. Scarcely a day passes without some striking evidence of the delays and perplexities springing merely from the want of precedents. Time will be a full remedy for this evil…’’ [emphasis added]

The evil that Madison sought to avoid was inconsistency and arbitrariness in parliamentary practice. The new Congress was necessarily obligated to address many procedural questions as matters of first impression. Lacking established traditions, norms, or practices, the House of Representatives had to feel its way forward slowly, gradually developing a system of rules, procedures – and precedents. As Madison correctly surmised, time did provide a remedy. As questions of procedure arose and were resolved by the House, its parliamentary principles became fixed points of reference – precedents – that could be relied on in deciding new cases.

A contemporary of Madison’s, Thomas Jefferson, also recognized the value of precedents. In section 1.2 of his Manual of Parliamentary Practice (composed during his time as presiding officer of the Senate), Jefferson asserted that “[i]t is much more material that there should be a rule to go by than what the rule is; that there may be a uniformity of proceeding in business not subject to the caprice of the Speaker or captiousness of the members’’ (emphasis added). This quote again highlights a key advantage of having an established body of precedents to rely on: consistency, predictability, and reliability. Such a body of work also fulfills Jefferson’s vision of a “parliamentary branch of the law’’ (Jefferson letter to George Wythe, February 28, 1800).

The precedents of the House stand on the same foundation as our common law legal tradition, exemplified by the Latin maxim stare decisis (or “let the decision stand’’). In any legislative body, the same procedural points occur time and again, and there is little point in re-litigating questions that have already been thoroughly discussed. By adhering to prior procedural rulings, the House is able to achieve the consistency and predictability that Madison and Jefferson thought vital to the legislative process.

Another contemporary of Madison and Jefferson, John Adams, defined a republic as “a government of laws, and not of men” (To the Inhabitants of of the Colony of Massachusetts Bay, March 6, 1775). This succinct formulation deftly captures the connection between precedents and the rule of law. By adhering to its settled precedents, the House situates the decision-making of its members within the context of a body of laws. The caprice and captiousness decried by Jefferson is thus replaced by the stability and certainty of impersonal, impartial law.

The House or Representatives has a long tradition of cataloging and publishing its parliamentary precedents. The first comprehensive attempt to compile the precedents of the House occurred in 1907, with the publication of the Hinds’ Precedents series. This five-volume work covered the entire span from the First Congress in which Madison served to the beginning of the 20th century. A subsequent series of three volumes – Cannon’s Precedents – was published in 1936, and catalogued precedents established during the 1907-1936 period. Deschler’s Precedents began in the mid-1970s, with the last of its 18 volumes completed in 2013.

The latest series of precedents, entitled simply “Precedents of the United States House of Representatives,’’ saw its first volume published in 2017. The second volume has just been published, and is now available online. These new volumes continue the venerable tradition of grounding the parliamentary practice of the House in settled law. It is a legacy that would have pleased Madison, Jefferson, and Adams, and it is one of which all Americans should be proud.

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The Room Where it Sort of Happens

Since I last mused about the issue of remote voting, the House floated, and then dropped, this proposal to allow both remote voting by proxy and remote committee proceedings during a “pandemic emergency.” Among other things, the resolution would have authorized a member to submit to the Clerk a signed letter specifying another member to act as her proxy. This would allow the proxyholder to cast the member’s vote and to record her presence for purposes of a quorum call, provided that the proxyholder obtain the member’s “exact instruction” prior to casting the vote or recording her presence.

The proxy voting procedure raises a number of questions and concerns. Would a large group or majority of members be able to give their proxies to a single leader  or other member? How “exact” do exact instructions need to be? Could the instructions give the proxyholder discretion as to how to vote? Could they direct the proxyholder to vote in accordance with the directions of the speaker or the minority leader? Could they direct the proxyholder how to vote on a bill that had not yet been finalized?

That the drafters of the resolution had some of these same questions is suggested by section 6, which states that “[t]o the greatest extent practicable, sections 1, 2, and 3 of this resolution shall be carried out in accordance with regulations submitted for printing in the Congressional Record by the chair of the Committee on Rules.” However, giving the committee (or the chair alone?) the power to make decisions regarding the very essence of the legislative process is not reassuring and, to coin a phrase, could be a cure worse than the disease. And the qualification “to the greatest extent practicable,” which implies that under some undefined circumstances the hypothetical regulations could be disregarded, adds to the impression of a half baked concept.

Presumably the House resolution was premised on the idea that proxy voting is less of a constitutional/institutional innovation than “pure” remote voting. However, although proxy voting has been traditionally used in committee proceedings, proxy voting has never been permitted in floor proceedings, nor in particular for votes on final passage of legislation or other measures. See William McKay & Charles W. Johnson, Parliament & Congress 212 (2010) (“Proxy voting has never been permitted in either House, and becomes an ethics issue when a Member’s votes is cast in his absence.”).

Even in committees, the idea of proxy voting is not uncontroversial, which is why it has been banned in the House (though not the Senate) since 1995. See id. Jefferson’s Manual describes the rule of Parliament that “[a] committee meet when and where they please, if the House has not ordered time and place for them; but they can only act when together , and not by separate consultation and consent– nothing being the report of the committee but what has been agreed to in committee actually assembled.” House Rules and Manual § 407 (citation omitted). Thus, there is a difference between collective deliberation and agreement on a matter and mere “separate consultation and consent” reflected by proxy voting.

To be clear, the constitutional quorum requirement does not apply to the work of committees (or for that matter to other legislative work that is short of final action by the full legislative body). Nor is there any constitutional obligation that committees conduct their business at the seat of government or in any particular location. As far as I can see, the question whether committees should operate remotely, e.g., by conducting meetings or hearings by videoconference, is  a matter of institutional policy, not constitutional law.

Nonetheless, the idea that legislative action requires more than “separate consultation and consent” is arguably embedded in the constitutional provisions that apply to the full legislative body. These include not only the quorum clause, but the mandate that Congress “assemble” for its annual meeting, and the restriction on either house unilaterally adjourning to “any other place” during the session. For reasons noted by Tim LaPira and James Wallner, constitutional text, historical practice, and the nature of the legislative process itself argue in favor of the physical, not merely virtual, assembly of both houses for the congressional session. And as Wallner observed in this podcast, the framers were aware of the possibility of legislative action by physically remote actors (such as the use of circular letters by committees of correspondence), but did not provide for Congress to act in such a manner. (By contrast, the constitutional amendment process involves what Professor Paulsen has called “concurrent legislation” by geographically dispersed legislative bodies).

This does not necessarily mean, however, that a majority of either house must be physically present in the same room at the same time in order to satisfy constitutional quorum requirements. While physical presence has always been the touchstone of determining a quorum in both houses, it seems to have been flexibly applied to ensure that members are present in the general vicinity of the chamber at roughly contemporaneous times. Thus, members traditionally can be counted toward a quorum even while outside the chamber or if they depart after voting or being counted. See, e.g., 5 Deschler’s Precedents ch. 20 § 3 (“In practice, the Speaker counts all Members he can see, including those leaving the chamber and those behind the railing.”); see also id. § 3.19 (in Senate, chair may use the last roll call as the basis for finding a quorum).

In modern practice, House votes are generally conducted by electronic voting that is conducted over a minimum period of 15 minutes during which members drift in and out. The chair has the discretion to hold the vote open for far longer if need be to allow absent members to make it to the floor. See Hearing Before the House Select Comm. to Investigate the Voting Irregularities of Aug. 2, 2007 at 17 (Oct. 25, 2007) (testimony of former House parliamentarian Charles Johnson) (“Through the early nineties, votes were held open interminably because Members could signal through the cloakrooms that they were on their way and the Chair– a tradition grew that the Chair would honor Members who had asked that the vote be held open and the business of the House was to be impacted adversely.”). The process followed by the House in voting on April 23, 2020, in which there was staggered voting by different groups of members in order to maintain social distancing, further illustrates the absence of any requirement under House rules or practice that a quorum be physically present in the chamber at any one time.

Particularly in light of this historical practice, it seems difficult to contend that the Constitution requires a majority of members to vote in the same room at the same time, and therefore no reason they should be prohibited from voting from locations outside the legislative chamber itself. On the other hand, as I suggested in my prior post, this proposition does not mean that the constitutional requirements have no physical component at all. Absent some degree of proximity among its members, the legislative body arguably is not assembled in a constitutional sense, is not sitting at the same place as the other chamber, and lacks a sufficient number of members in attendance to constitute a quorum. Furthermore, if members are simply voting remotely without the opportunity for collective discussion, debate and negotiation, this is not a mere technical problem, but potentially undermines the deliberative nature of the institution.

A measure introduced in the Senate by Senators Portman and Durbin, S. Res. 548, would allow senators “to cast their votes from outside of the Senate Chamber” during “an extraordinary crisis of national extent.” Like the House resolution, this proposal is not a “pure” remote voting process in that the Senate would still conduct a proceeding in the Senate chamber (though presumably there could be as few as one senator physically present, as in a pro forma session). Unlike the House proposal, however, senators would cast their own remote votes, which avoids some of the practical and potential constitutional problems with proxy voting suggested earlier.

To the extent that a majority of senators are casting their votes from remote locations within the seat of government, it seems to me that S. Res. 548 would very likely pass constitutional muster. The Senate would be assembled for constitutional purposes, the senators would be present at the seat of government, and they would retain the same ability to conduct collaborative legislative activities as during ordinary congressional sessions. To the extent that the need for social distancing inhibits such activities, this would not be result of the remote voting procedure.

Even if there were not a majority of senators present at the seat of government, it is probably unlikely the process could be successfully challenged in court. As suggested by this CRS report, a court might decline to reach the merits of the case under the the enrolled bill rule or other justiciability principles and, even it did reach the merits, would likely in any event be inclined to defer to congressional judgment regarding the propriety of remote voting, particularly under the extraordinary circumstances presented.

Nonetheless, Congress should be concerned not only with the possibility of judicial review, but whether a remote voting procedure complies with the letter and spirit of the Constitution and its potential ramifications from an institutional perspective. With this perspective in mind, I would suggest a tweak to S. Res. 548. When a vote in which senators may participate remotely is scheduled, there should be an opportunity for any senator to ask for an ascertainment of a quorum in connection with the vote. If no such request is made within a set period of time, any objection to the absence of a quorum would be untimely, and the result of the vote would in effect be accepted by unanimous consent. If, on the other hand, a request for a quorum call is made, the determination should be whether a majority of the senators are present within the seat of government at the time they cast their votes. This would have the effect of encouraging senators to be present in Washington D.C. if at all possible, and avoid any institutional slippage toward remote participation as a normal practice. Finally, whether in conjunction with a remote voting procedure or otherwise, the House and Senate should also use technology to maximize the ability of members to communicate and deliberate together during this period.

This may not be a perfect solution, but it seems to me the best that can be achieved under these difficult circumstances.

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The Constitutionality of Remote Voting

As you may have heard, there is a virus going around and as a consequence Congress, and everything else, is shut down. Some (such as @danielschuman) have advocated Congress establish a process for remote voting in the event that members are unable to return to Washington in the near future. One idea is to allow members to deliberate and vote by online video conference.

In a staff report on the subject, the House Rules Committee briefly considered the constitutionality of a remote voting procedure, observing that it would be a “novel question for a court and there is no guarantee of a favorable ruling affirming its constitutionality.” Majority Staff Report Examining Voting Options During the COVID-19 Pandemic (Mar. 23, 2020). To my knowledge there has been no in depth analysis of this question so I am posting a few thoughts.

The relevant constitutional provisions begin with the requirement for Congress annually to assemble and remain assembled until both houses agree to end the session. The Constitution provides that “Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January.” U.S. Const., amend. XX, § 2; see also id., art. I, § 4, cl. 2. The term “assemble” (according to Johnson’s Dictionary) means “to bring together in one place” or “to meet together.”

Further, Article I provides that “[n]either House, during the Session of Congress, shall, without the Consent of the other, adjourn . . . to any other Place than that in which the two Houses shall be sitting.” U.S. const., art. I, § 5, cl. 4. Thus each house must normally sit in the same “place” as the other while Congress is in “session.”

Although the Constitution does not expressly define the “place” at which both houses normally sit, longstanding interpretation and practice establishes it to be the seat of government. See 1 Deschler’s Precedents, ch. 1, § 4. Since November 17, 1800, Congress has assembled and sat in the District of Columbia, which it had designated as the permanent seat of government. Id.; see also U.S. const., art. I, § 8, cl. 17 (authorizing Congress to acquire a District to “become the Seat of the Government of the United States”). As long as each house continues to sit within the seat of government, it does not need the permission of the other body to meet in a different physical location. See 1 Deschler’s Precedents, ch. 1, § 4 (“a simple House resolution suffices to adjourn the House to meet in another structure at the seat of government”); see also id., ch. 1, § 4.1; House Rule I (12) (d) (“The Speaker may convene the House in a place at the seat of government other than the Hall of the House if, in the opinion of the Speaker, the public interest shall warrant it.”).

The Constitution does not have any express requirements for where or how members must vote, but it provides that “a Majority of each [house] shall constitute a Quorum to do Business” and “a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members.”  U.S. const., art. I, § 5, cl. 1. This empowers each house to require the attendance of absent members at a specific location for purposes of “doing business” (e.g., voting). See House Rule III (1) (“Every Member shall be present within the Hall of the House during its sittings, unless excused or necessarily prevented, and shall vote on each question put, unless having a direct personal or pecuniary interest in the event of such question.”).

As a general rule, the question of a quorum is an internal matter for each house and does not concern the other. However, at the commencement of a congressional session “Congress is not ‘assembled’ until a quorum is present in both Houses, and each House has been notified of the quorum in the other.” 1 Deschler’s Precedents, ch. 1, § 2. Furthermore, while each house can adjourn from day to day, for the duration of the congressional session neither may adjourn for more than three days without the consent of the other. U.S. const., art. I, § 5, cl. 4. This has given rise to the practice of each house conducting “pro forma sessions” (performed by a single member who conducts a brief ceremonial session in the House/Senate chamber) every three days when Congress is effectively in recess.

One final provision of note is the president’s authority on “extraordinary Occasions” to “convene both Houses or either of them.” U.S. const., art. II, § 3. The authority to “convene” (defined by Johnson as “to call together; to assemble”) empowers the president to require the assembly of either or both houses at the seat of government as at the commencement of an ordinary congressional session.

What do these various provisions mean for remote voting? My tentative thinking is that nothing in the Constitution prevents either house from determining that a quorum exists when, for example, a majority of members are gathered on the Capitol grounds, rather than in the House or Senate chamber. Similarly, if either house wanted to allow members to vote from their offices, rather than on the floor, it is hard to see what provision would be violated. So long as the house is assembled at the seat of government and there is a reasonable method for determining the existence of a quorum if its absence is suggested, such a procedure appears to violate no constitutional prohibition.

True, the longstanding tradition is for members to deliberate and vote in a single room (with some exceptions, such as proxy voting), but it is hard to see why the quorum clause would be read to prohibit a majority from doing business while they are acting in concert (say while connected by videoconference) at the seat of government, rather than independently voting in the same room at different times. Thus, for example, if during the pandemic either house wanted to keep its members physically separated in one or more structures in the District of Columbia, they should be able to debate and vote electronically. Members would retain the ability to physically congregate if they chose, to access the chamber, and, with the agreement of a sufficient number, to commence an in-person session.

It gets dicier if members (or at least a majority of members) are not physically located in the District of Columbia. One problem is that the house has arguably adjourned to “another place,” though this concern could be resolved by obtaining the consent of the other body. A more difficult issue is that the house may not be  “assembled” or “convened” at all because it has not come together in any particular place. This may seem like a technicality in the context of virtual meetings, but I am not (entirely) sure that it is. Not having at least a majority of the body present at the seat of government, with the option of congregating personally, arguably changes the nature of legislative deliberations in a way that violates the spirit, as well as the letter, of Article I.

There is a possible workaround, however. If members vote to approve a particular measure by videoconference, this could be treated not as final passage , but as an interim step in the legislative process (sort of like the House Committee of the Whole). Final passage would occur at the pro forma session, when the measure would be deemed to be passed without objection. The downside of this procedure is that any member could show up and object, but that is also what ensures the process does not become a permanent virtual Congress.

I have not considered here the likelihood that courts would intervene if these procedures were challenged (presumably by someone injured as a consequence of legislation passed pursuant to the new process). Even assuming a constitutionally defective process, it is likely that the courts would show their customary deference to Congress in these sorts of procedural matters. I assume, however, that members of Congress wish to adhere as closely as possible to the letter and spirit of the Constitution regardless of judicial intervention.

 

 

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“Its Weird Being in an Organization that is Less Popular than Colonoscopies and Nickelback”

So said yesterday Representative Derek Kilmer (D-WA), the chair of the Select Committee on the Modernization of Congress, a new House committee  created at the beginning of the 116th Congress by a vote of 418-12. It is a bipartisan committee with 12 members equally divided between Democrats and Republicans. Kilmer’s vice-chair is Representative Tom Graves (R-GA).

The select committee’s mission is to fix Congress so that it can be at least as popular as Nickelback and as useful as colonoscopies. More precisely, the House charged it with studying and developing “recommendations on modernizing Congress,” including recommendations on seven specific topics:

      1. rules to promote a more modern and efficient Congress:
      2. procedures, including the schedule and calendar;
      3. policies to develop the next generation of leaders;
      4. staff recruitment, diversity, retention, and compensation and benefits;
      5. administrative efficiencies, including purchasing, travel, outside services, and shared administrative staff;
      6. technology and innovation; and
      7. the work of the House Commission on Congressional Mailing Standards.

In order to formally adopt a recommendation, two-thirds of the select committee’s members must agree to it.

The select committee has a limited lifespan. It is required to issue a final report by the end of the year and will end its existence (barring further action by the House) on February 1, 2020. It is authorized to make recommendations on a rolling basis and is supposed to issue interim status reports every 90 days.

There is no shortage of ideas for the select committee to consider. LegBranch.org has created this page with an excellent compilation of  proposals and resources that will be useful for the committee and others interested in congressional reform. I have a few ideas myself (see, for example, here and here). But first the committee has to get started. As of yet, it has not held or scheduled any hearings, nor has it apparently hired any staff.

Chairman Kilmer made his remarks at a Bipartisan Policy Center event yesterday (his discussion with Michele Stockwell of BPC starts at about the 12 and a half minute mark on the video). Not a great deal of news in the discussion. I was interested to know that he wants to look at best practices from the state legislatures. He is also not a big fan of the motion to recommit, though I doubt there will be any bipartisan agreement on reforming that procedure.

But in any event, nothing can happen until the select committee gets going. Until then, colonoscopies and Nickelback will keep extending their lead.

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Constitutional Text and Discontinuity

So what does the Constitution say about discontinuity? Let’s start our analysis at what might seem like an odd place (strike that, what is an odd place), an email from the Clerk of the Australian Senate:

I have always thought that, as your Constitution has no prorogation or dissolution, and as both of your Houses are continuing bodies (notwithstanding that all of the House seats turn over at the same time), it makes little sense to speak of different congresses, sessions or terms, and the convention of bills dying at the end of a “term” also has no basis.

Email from Harry Evans, Clerk of the Senate, Parliament of Australia, to Seth Barrett Tillman (Nov. 4, 2004), reproduced in Seth Barrett Tillman, Noncontemporaneous Lawmaking: Can the 110thSenate Enact a Bill Passed by the 109thHouse?, 16 Cornell J. L. & Pub. Pol’y 331 (2007).

I presume by “term” Mr. Evans was referring to the “term” of a congress, rather than to the terms of individual members of congress. The 20thamendment, after all, provides that “the terms of Senators and Representatives [shall end] at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.” This language is explicit in distinguishing a legislator’s term from that of his or her successor (or predecessor).

The original Constitution, on the other hand, says less about this subject:

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

                   * * *

The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof for six Years; and each Senator shall have one vote.

It is true, as Evans observes, that this language says nothing explicitly about “new” or “separate” congresses or congressional terms. It also says nothing about members of the House serving for terms of precisely two years (indeed, it does not expressly say they serve for limited terms at all). One might even draw a negative inference from the fact that senators are chosen “for six years,” but no statement is made that representatives are chosen “for two years.”

One could plausibly read this text as merely requiring that each state hold a congressional election sometime during each even-or odd-numbered year (absent congressional action pursuant to section 4 of Article I, the choice would be up to each state). Once the election were held, the newly elected member might assume a seat immediately, even if the House were in session. Alternatively, this might not occur until (1) the next convening or assembly of the House; (2) the next assembly or meeting of Congress: or (3) the first assembly or meeting of Congress in the next calendar year. The text does not tell us which of these alternatives is the correct one, or whether there is no single correct answer and it is up to somebody (Congress or the states, presumably) to decide as a policy matter.

Similarly, the text does not say when the terms of House members end. The Constitution does provide specifically that senate seats are vacated at two year intervals from the date of first assembly. Again, one mightdraw the inference that the absence of corresponding language for representatives is of some significance. Perhaps the seats of House members are vacated when their successors are elected (or sworn in) and thus will vary depending on the state election schedule. Perhaps the seats are vacated when the House adjourns sine die in the calendar year during which congressional elections are held (which might or might not be the same for all states). In short, it is not clear, based on the text of the (original) Constitution alone, when House seats turn over or if they in fact all turn over at the same time.

Nevertheless, from 1789 to 1932 (when the 20thamendment was proposed), the Constitution was uniformly interpreted to require all terms for House members to begin and end at the same time and to last for exactly two years. Although the beginning point was fixed not by a constitutional provision but by an act of ordinary legislation (one by the Confederation Congress), Congress believed that it lacked the constitutional power to alter this congressional schedule no matter how inconvenient or downright pernicious it was found to be. See generally Edward J. Larson, The Constitutionality of Lame-Duck Lawmaking: The Text, History, and Original Meaning of the Twentieth Amendment, 2012 Utah L. Rev. 707, 715-17 (2012).

Specifically, in 1788 the Confederation Congress directed that the proceedings of the new government under the newly-ratified Constitution would commence on the first Wednesday of the following March. This date, which happened to be March 4, 1789, was thenceforth considered as the commencement date for the terms of all federal elected officials (president, vice president, senators and representatives), which terms would also expire on March 4 (of each odd-numbered year, in the case of representatives). This produced the odd result that congressional terms began on March 4 of each odd-numbered year, but the newly-elected congress did not ordinarily assemble until nine months later on the first Monday in December, which was the default date specified by the original Constitution for the annual meeting of Congress.

Another inconvenient result of this schedule was the so-called “short session” of Congress. When Congress assembled on the first Monday in December of an even-numbered year, its proceedings could last no longer than about three months, i.e.,until March 4 of the following year. At that time the terms of all House members and one-third of senators expired, and the incumbents no longer had any constitutional authority to hold their seats or perform legislative activities.

According to Evans, however, both houses of Congress, and therefore Congress itself, are continuing bodies. Professor Tillman agrees. See Seth Barrett Tillman, Defending the (Not So)  Indefensible, 16 Cornell J. L. & Pub. Pol’y 363, 368 n.22 (2007) (“I believe the House and the Senate are both continuing bodies.”). So, apparently, does Professor Prakash. See Saikrishna Bangalore Prakash, Of Synchronicity and Supreme Law35 (Jan. 2018) (“there is no [constitutional] rule that dictates that ‘Congress’ necessarily expires . . . [n]or does any text specify that, when terminated, an old Congress immediately segues into a new Congress”); id. at 36 (“one might conclude that while members come and go due to deaths, resignations, and expulsions, Congress itself never changes [and] there is (and always has been) but one, uninterrupted Congress, albeit composed of different members across time.”).

If Evans, Tillman and Prakash were correct that Congress is continuing in nature, the “short session” would not have posed much of a problem. Congress could have simply continued to sit past March 4, with two-thirds of the Senate and all re-elected incumbents unaffected, while the seats of retiring or defeated incumbents would be assumed by their newly-elected representatives. Thus, despite the expiration of congressional terms, the business of Congress could have continued without interruption. This would have been a regime of legislative continuity.

Congress, however, has never understood the Constitution to permit it to operate in such a fashion. From the very start, Congress has understood that each two-year congressional term constitutes a separate congress, with the First Congress occurring from March 4, 1789 to March 4, 1791, the Second Congress from March 4, 1791 to March 4, 1793, and so on. See Prakash, supra, at 35. As a result, all legislative business had to be completed by March 4 of each odd-numbered year, when the “old Congress” expired. See S. Rep. 72-26, Fixing the Commencement of the Terms of the President and Vice President and Members of Congress4 (72d Cong. 1stsess.) (Jan. 4, 1932) (explaining the “very undesirable legislative condition” resulting from the “so-called short session,” which “enables a few Members of Congress to arbitrarily prevent the passage of laws simply by the consumption of time”); Larson, supra, 2012 Utah L. Rev. at 715-34 (describing over a century of efforts to eliminate the short session).

It is true, as Professor Prakash emphasizes, that the Constitution does not explicitly declare that each congress expires or dissolves every two years or that there is a distinction between the current congress and past congresses. SeePrakash, supra, at 35. But if one recognizes that the temporal limitation of a legislative body was a fundamental practice not only of Parliament but of the colonial/state legislatures, it seems entirely reasonable to read the Constitution’s references to “Congress” as incorporating these concepts. For example, the declaration in Article I, section 1, that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives” may be interpreted as an implicit reference to the currentcongress, just as the “President” implicitly refers to the currentpresident. See generally Lawrence B. Solum, Surprising Originalism: The Regala Lecture11-12 (draft May 8, 2018) (discussing the importance of “impliciture” and other forms of “pragmatic enrichment” in reading constitutional text); cf. Tillman, Noncontemporaneous Lawmaking, 16 Cornell J. L. & Pub. Pol’y at 336 n.11 (conceding that the language of Art. I, §1 “might support contemporaneous action as an implicit requirement of bicameral action”).

Alternatively, one might conclude that the original Constitution is silent on the question of legislative discontinuity and that the practice of treating each two-year term as a separate congress is a “mere” constitutional gloss placed upon the text from 1789 to 1932. This position becomes much harder to take, however, when one considers the adoption of the 20thamendment in 1932-33.

Again, it is true, as Prakash takes pains to point out, that the 20thamendment never expressly “dictates that a ‘Congress’ commences on January 3 of an odd year at noon and terminates on the same day and time two years later.” Prakash, supra, at 35. It is indisputable, however, that this is precisely what everyone involved in proposing and ratifying the 20thamendment understood would be the effect of that amendment. This, moreover, was not an incidental effect but part of the amendment’s core purpose.

Part of the objective of the 20thamendment was simply to eliminate the short session, which was inconvenient and inefficient for the reasons already mentioned. The other objectives related to the importance of assembling a “new Congress” as soon as possible after it was elected and ensuring that it, rather than the “old Congress,” was making important decisions. See S. Rep. No. 72-26, at 4 (“No reason has been given why a new Congress elected at a general election to translate into law the wishes of the people should not be installed into office practically as soon as the results of the election can be determined.”).

As the House report accompanying the proposed amendment explains, “[u]nder our present system, the old Congress expires on the 4thday of March of the odd years, and the first meeting of the new Congress is on the first Monday of the following December.” H.R. Rep. No. 72-345, Proposing an Amendment to the Constitution of the United States 3 (72d Cong. 1stsess.) (Feb. 2, 1932). The proposed amendment shifted this schedule so that the old Congress expired at noon on January 3 of each odd-numbered year, and the meeting of the new Congress (unless changed by law) would occur at the same date and time.

Supporters of the amendment argued that this revised schedule was not merely more efficient and convenient, but more consistent with the principles of representative democracy:

The only direct opportunity that the citizens of the country have to express their ideas and their wishes in regard to national legislation is the expression of their will through the election of their representatives at the general election in November. During the campaign that precedes this election the great questions demanding attention at the hands of the new Congress are discussed at length before the people and throughout the country, and it is only fair to presume that the Members of Congress chosen at that election fairly represent the ideas of a majority of the people of the country as to what legislation is desirable.

S. Rep. No. 72-26, at 3. These views mirror the arguments for legislative discontinuity discussed in my last post.

Professor Tillman argues that the idea of each congress expiring or dissolving was based on an inappropriate attempt to map British parliamentary practices onto a very different American legislative system. See Tillman, Defending the (Not So) Indefensible, 16 Cornell J. L. & Pub. Pol’y at 368 n.22, 376 n.46, 377 n.50, 379 n.56. However, the framers of the 20thamendment were well familiar with a century and a half of legislative practice under the Constitution, and they did not see it the way Tillman does. They believed that the Constitution needed to be amended to bring American practice more in line with that of other countries with respect to the assembling of a new legislature. Representative Celler, for example, remarked: “In no country other than ours does 13 months elapse between election and convocation of parliament. The practice in Great Britain, Canada, Australia, and New Zealand has been to make the interval between elections and the summoning of parliaments as short as possible.” 75 Cong. Rec. 3828 (1932). Another member remarked:

Mr. Chairman, I was wondering, as Winston Churchill sat over in the rear of the House a few minutes ago, what his emotions would be if, in the Parliament of England, he and his colleagues sat around for 13 months after election before they took their seats for legislative work at the next regular session. There, the English people throw out an administration upon their own vote, returning the new Parliament that then comes in and legislates, while we wait 13 months unless called here in extra session.

Id. at 383 (Rep. Frear).

In short, the framers and ratifiers of the 20thamendment clearly understood that the amendment would establish noon on January 3 of each odd-numbered year as the time when an old congress would expire and a new congress would begin. To deny that the constitutional text has this effect would seem to be an exercise in “literalism” rather than “textualism.” See Solum, supra, at 11 (explaining the difference).

 

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Legislative Discontinuity: An Introduction

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.

Continue reading “Legislative Discontinuity: An Introduction”

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Did Liz MacDonough Change the Process for Making Byrd Rule Determinations?

For those who don’t know, Ms. MacDonough is the Senate Parliamentarian, and in that capacity she is responsible for making preliminary rulings on what parts of the Senate health care reform bill comply with the “Byrd rule.” Without getting into the many intricacies of the Byrd rule, the basic point is that those provisions of the legislation which are compliant with that rule can pass the Senate with a simple majority vote under the reconciliation process, while those that are determined to be non-compliant must be stricken unless 60 senators (the same number needed to break a filibuster) vote to waive the Byrd rule point of order.

According to this June 20, 2017 post by Georgetown law professor David Super, MacDonough has changed the procedures for making preliminary Byrd rule determinations in a way that materially disadvantages Democrats who oppose the health care bill. Professor Super wrote:

Ms. MacDonough is by all accounts a smart and capable lawyer.  Nonetheless, she serves at the pleasure of the Majority Leader, Senator McConnell.  A prior Republican Senator Majority Leader fired one of her predecessors for making unwelcome rulings, and some current Republican senators have already called for Ms. MacDonough’s firing.  This year, she has departed from longstanding practice by meeting with Republican staff ex parte to discuss parliamentary objections rather than allowing Democratic and Republican staff to argue their points before her in a joint meeting.  Therefore, Republicans may know which items she will hold violate the Byrd Rule – and how to modify those items to achieve a favorable ruling – but Democrats do not and may not until the very last moment.

I found this charge surprising not only because it doesn’t sound like something MacDonough would do, but because I would think that there would be a much louder outcry if this were happening. (It seems a tad more important, for example, than the fact that there is a dress code for the Speaker’s Lobby).

So I emailed Professor Super for some more detail, and he graciously responded. He explained that the sources of his information were people “who were in frequent contact with Democratic staff.” These sources reported that the Parliamentarian was holding separate meetings with Democrats and Republicans and “keeping the contents of each meeting confidential from the other side.” Moreover, in the past “at the conclusion of or subsequent to the joint meetings, the parliamentarian has let both sides know what to expect.” By contrast, Democratic staff had not received any indication of MacDonough’s expected rulings on the health care bill. Super noted that “[a]lthough it may be theoretically possible that Republican staff are equally in the dark, the absence of complaints from that sector leads me to believe that they are not.”

I have no reason to doubt that Super is reporting in good faith what he has been told, but I just came across this article from June 30, which quotes several Democratic and Republican experts on the process MacDonough is following, with no indication of the irregularities Super alleges.

According to Bill Dauster, a longtime Democratic staff director for the Senate Budget Committee who just retired in May, the process is as follows: “The Democrats go in, the Republicans go in, then both of them go in together.” MacDonough has not been ruling immediately, but, according to Dauster, “she has, of late, gotten back to people by email” with her preliminary views or rulings. According to the article, this is an improvement over the process often used in the past, when staffers often did not know how the parliamentarian was leaning until the issue was raised on the floor.

There is nothing in this article to suggest that MacDonough is changing the process to make it less fair or transparent. Of course, it is possible that the author of the article did not talk to the right people. But it is also possible that Super’s (unnamed) sources were wrong, or had an agenda. Or perhaps they were upset that they had not yet received a ruling from the parliamentarian’s office, but later got one by email. (It seems that one major ruling has just come out in the last few days).

So I remain skeptical of this allegation. But if more emerges, I will update the post.

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When is a Meeting not a Meeting?

When the Supercommittee says so, apparently.  According to this Politico article, the Supercommittee has been “supersecret,” holding a six and half hour closed session in the Capitol yesterday.

But wait, the Supercommittee rules require that its “meetings” be open, unless the Supercommittee votes in open session to close them. Wasn’t this a meeting? Senator Kerry seems to think so. Asked for comment on what occurred, he would say only that it was a “good meeting, we had a good meeting, a good meeting.” Not terribly informative, but the one thing that seems clear is that it was a meeting.

Maybe not. According to a colloquy between co-chairs Jeb Hensarling and Patty Murray at the organizational meeting, the term “meeting” in the Supercommittee rules refers to a “meeting for the transaction of business” as provided for by House and Senate rules. This means that sessions involving “markups of legislation and reports” are covered by the open meeting rule, but “less formal caucuses” or “working sessions” are not.

Committee markups refer to “sessions where committee members consider changes in the text of the measure or matter before them” or “determine whether a measure pending before a committee should be amended in any substantive way.” Since there are no legislative measures pending before the Supercommittee, it cannot yet conduct a markup. Indeed, even once legislative language has been drafted, it is not clear that consideration of accepting or changing such language would constitute a markup, since there is no measure formally pending before the Supercommittee.

In short, as the Supercommittee interprets its rules, all of its sessions that do not involve voting on specific legislative language appear to be beyond the scope of its open meeting rules. And it is not clear that even consideration of specific language would need to take place in open session, particularly if there is no formal vote. According to the Supercommittee’s interpretation, all of its deliberations could take place behind closed doors, with only the final vote on its report and proposed legislative language being public.