Majority Voting in Congress Further Notes On The Constitutionality of The Senate Cloture Rule PDF

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John C. Roberts, Majority Voting in Congress: Further
Notes on the Constitutionality of the Senate Cloture
Rule, 20 J.L. & Pol. 505 (2004)
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Majority Voting in Congress: Further Notes on the
Constitutionality of the Senate Cloture Rule
John C. Roberts*
I. INTRODUCTION
The venerable tradition of unlimited debate in the United States Senate,

and the Cloture Rule that attempts to circumscribe it, have been contentious
both politicians and scholars throughout much of our history.I
subjects among
For at least the last 150 years, senators have used the weapon of extended
debate to prevent majority action on some controversial question. Thus, each
generation must address anew the difficult issues surrounding the propriety
and constitutional validity of both the filibuster (a pejorative term for the
tradition of extended debate when it is pushed beyond "normal" limits) and
the Cloture Rule that requires the votes of sixty senators to close debate. The
issue is again being discussed as a result of Democratic attempts to block
Senate approval of certain controversial judicial nominations by President
Bush through use of the filibuster. Majority Leader Bill Frist has threatened
publicly to change the Senate rules in order to reduce the number of votes
necessary to cut off debate on a rules change, and then to amend the rules to
prohibit filibusters of judicial nominations. Two Senate Committees even
3
4
held public hearings on the policy and constitutional issues involved.
Professor of Law and Dean Emeritus, DePaul University College of Law. I am indebted to Mark
Giangrande of DePaul's Rinn Law Library for his help on congressional materials. Professor Stephen
Siegel provided both advice and historical perspective. I first encountered these issues while serving as
General Counsel to the United States Senate Committee on Armed Services from 1977 to 1980.
1 See, e.g., SARAH A. BINDER& STEVENS. SMITH, POLITICS OR PRINCIPLE? FILIBUSTERING IN THE
UNITED STATES SENATE (1997); Catherine Fisk & Erwin Chemerinsky, The Filibuster.49 STAN. L. REV.
181 (1997); ROBERT C. BYRD, THE SENATE, 1789-1989, S. DOC. No. 100-20, at 93-163 (Vol. 2, 1991);
CHARLES TIEFER, CONGRESSIONAL PRACTICE AND PROCEDURE 691-766 (1989).
2 See, e.g., Norman Omstein, The Debate to End All Debate, N.Y. TIMES, May 14, 2003, at A25;
Helen Dewar, GOP Senators Fail to Force Vote on EstradaNomination, WASH. POST, Mar. 7, 2003, at
A06.
3 See, e.g., Carl Hulse, From One Esteemed Corner,A Lesson About the Senate's FilibusterRule,
N.Y. TIMES, June 5, 2003, at A32; Helen Dewar, FilibusterRule Change is Urgent, FristSays; Daschle
Calls Proposala GOP 'Overreaction,'WASH. POST, June 6, 2003, at A25. As this article goes to press,
Senate Republicans are again threatening to modify the Rule at the start of the 109th Congress. Charles
Babington, GOP Moderates Wary of FilibusterCurb, WASH. POST, Jan. 16, 2005, at A05.
4 JudicialNominations, Filibusters,and the Constitution: When a Majority Is Denied Its Right to
Consent: Hearing Before the Senate Subcomm. on the Constitution, Civil Rights, and Property Rights,
Journalof Law & Politics [Vol.XX:505
The current controversy about a portion of the Cloture Rule - the clause
which requires two-thirds of those present and voting for passage of a motion
cutting off debate on a change in the Senate rules - is part of a larger struggle
over the Senate's tradition of extended debate, the Cloture Rule provision
requiring 60 votes to end debate on non-rules issues, and ultimately the place
of supermajority voting rules in Congress. In a provocative article in these
pages, Virginia Seitz and Joseph Guerra examine the narrowest of these
questions, the constitutionality of that portion of the Cloture Rule which
requires an affirmative vote of two-thirds of those present and voting to end
debate on a proposed amendment to the Senate Rules (including, of course,
the Cloture Rule itself).5 They argue for the constitutionality of this rule,
which is designed to further entrench the Cloture Rule by making it even
more difficult to modify the rule than to actually obtain Cloture on a
substantive vote.6 Their position is that whatever one's views on the
constitutional validity of the filibuster itself, or on the main Cloture Rule for
cutting off debate, the sub-rule requiring a larger supermajority to end debate
on rules changes stands on a different constitutional footing.7 They find that
it does not violate any asserted underlying constitutional norm of majority
rule, nor does it run afoul of the accepted legal stricture that one session of the
Congress cannot bind a subsequent one - the anti-entrenchment principle.
On the latter issue, they accept the anti-entrenchment principle, but assert that
it does not apply to rules regulating debate. 9
These issues are worth discussing because they involve core principles of
majority rule in a representative democracy. In fact, it is extremely difficult
to separate out one clause in the Cloture Rule for special analysis, as Seitz and
Guerra attempt to do, without confronting the larger issue of the
constitutionality of any rule which imposes a supermajority voting
requirement on the Senate or the House. 10 In this article I will take a second
Comm. on the Judiciary,108th Cong. (2003); Hearingon Senate Rule XXII and Proposalsto Amend this
Rule: Before the Senate Comm. on Rules and Admin. 108th Cong., (2003). Both featured statements for
and against proposed cloture rules changes by senators and scholarly commentators.
5 Virginia A. Seitz & Joseph R. Guerra, A ConstitutionalDefense of "Entrenched" Senate Rules
GoverningDebate, 20 J.L. & POL. 1 (2004).
6 Id. at3.
7 Id. at 22.
Id. at 18-22.
9 Id.
'0 While Seitz and Guerra on occasion restrict their analysis to the portion of the Cloture Rule dealing
with rules changes, at other times they seem to argue more generally for the constitutionality of the entire
Cloture Rule. Since both the main rule and the special provision on rules changes are rules regulating
debate, the arguments for and against them should be identical. In this article I will treat both parts of the
Cloture Rule as raising the same issues.
2004] Constitutionalityof the Senate Cloture Rule
look at the interesting arguments raised by Seitz and Guerra and also venture
some thoughts on the larger question of super-majority voting, which is much
debated in the scholarly literature. That issue, like the filibuster, flares up
from time to time, and it most recently received extended attention when the
reform-minded House of Representatives under Congressman Gingrich
I
adopted a super-majority rule for future increases in tax rates.
This article will not replay all of the excellent analysis by scholars on the
constitutionality of the Cloture Rule or the place of majority voting rules in
Congress. But I will attempt to add some additional ideas to the discussion,
focusing on four fundamental questions:
1. Is the Cloture Rule, as it relates both to rules changes and to other

votes, binding on the Senate in some legal or constitutional sense, or can it be
altered or repealed by a majority vote?
2. What is the proper role of the Rulemaking Clause of the Constitution in
analyzing the constitutionality of the Cloture Rule?
3. What place do principles of majority rule have in this constitutional
debate?
4. Finally, what is the effect of the anti-entrenchment principle on the
Cloture Rule, and in fact on all super-majority voting rules?
My position can be summarized in a few simple propositions. First, while

the debate is interesting and useful, the argument over the validity of the
filibuster or the Cloture Rule is ultimately not constitutional or even legal.
Rather it is a policy debate about the functioning of the Senate as an
institution, with all its peculiar traditions and rich history. Second, the
Cloture Rule, and therefore the filibuster itself, are in fact subject to the will
of a simple majority of the Senate at any time. I argue that this is true both as
a matter of Senate practice and of constitutional principle. Third, if the
Cloture Rule were binding in some legal sense on a simple majority of
senators, it would be unconstitutional. I base my constitutional conclusion on
the Constitution's inherent majority voting rule for the enactment process, on
the Rulemaking Clause in Article I, Section 5, and on the anti-entrenchment
principle (which I see as required by the Constitution).
In Part II below, I offer some observations on the special place of the
Senate in our constitutional structure and on the history, culture and traditions
of the upper chamber. This discussion helps to lend context to the
controversy over the Cloture Rule and supermajority voting rules generally.
" The rule, House Rule XXI, and the scholarly debate it spawned are discussed in Part IV.B infra.
508 Journal of Law & Politics [Vol.XX:505
In Part III, I defend my contention that both the filibuster and the Cloture
Rule remain under the parliamentary control of a simple majority of the
Senate. In Part IV, I discuss why a binding Cloture Rule (or any binding
super-majority voting rule, for that matter), if it existed, would violate the
Constitution.
II. THE HISTORY AND CULTURE OF THE SENATE
It is virtually impossible to think analytically about the filibuster or the

Cloture Rule without understanding the special history and culture of the
United States Senate and its tradition of unlimited debate. That tradition is in
fact an indispensable characteristic of what is often called "the world's
greatest deliberative body."
We all learn in our grade school civics classes about the Framers' crucial
decision to create a bicameral legislature.12 We also know that the Framers
designed two very different legislative chambers for the new United States,
modeled loosely on the upper and lower houses of Parliament. They saw the
Senate as a body which would protect the interests of the states, particularly
the vulnerable small states.13 Its members, in contrast to members of the
House of Representatives, would be elected by the state legislatures. The
Framers clearly anticipated that the Senate would consist of an elite group of
older, experienced politicians, the "wise men" of the day, in contrast to a
more populist House. They would serve for longer terms, longer even than
the President, and the terms would be staggered to retard change.14 Senators
would represent entire states, not smaller geographical areas determined by
population, and they would be older and more experienced than House
members.15
12 The key decision to create a bicameral legislature, and to require different selection processes for
each chamber, is popularly known as the "Great Compromise" because it assuaged the concerns of the
small states in the Philadelphia Convention and facilitated eventual consensus on a constitutional structure.
See JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION
57-70 (1996).
13 The Convention debates on the makeup of the Senate are ably summarized in Michael J. Malbin,
Congress During the Convention and Ratification, in THE FRAMING AND RATIFICATION OF THE
CONSTITUTION 185-208 (Leonard W. Levy & Dennis J. Mahoney, eds., 1987). The Convention decided
that votes in the Senate would be by individual members and not by state, however. U.S. CONST., art. 1, §
3, cl. 1, see I THE RECORDS OF THE FEDERAL CONVENTION OF 1787, 194-95 (Max Farrand ed., rev. ed.
1966) [hereinafter Farrand].
14 U.S. CONST., art. I, § 3, cl. 1. The Convention formally considered Senate terms as long as nine
years. See 1 Farrand, supranote 13, at 418.
15 Compare U.S. CONST., art. I, § 2, cl. 2 (House members must be at least twenty-five years old and
citizens of the United States for at least seven years) with U.S. CONST., art. I, § 3, cl. 3 (Senators must be at
least thirty years old and citizens of the United States for at least nine years).
But the Framers intended that the Senate have another vital function in the
new government; they expected the second chamber to act as a check on rash
or unwise action in the House. During the Philadelphia Convention, Madison
argued that the longer terms and greater experience of Senate members would
prevent precipitous legislative action. Referring to the people, he noted that
"they themselves, as well as a numerous body of Representatives, were liable
to err also, from fickleness and passion. A necessary fence [against] this
danger would be to select a portion of enlightened citizens, whose limited
number, and firmness might seasonably interpose [against] impetuous
16
counsels."'
Madison later devoted two of the Federalist essays (Nos. 62 and 63) to the
functions and operation of the Senate. There again the notion of a small body
of more experienced, wiser men, more insulated from the politics of frequent
elections, was clearly articulated:
[T]here are particular moments in public affairs, when the

people stimulated by some irregular passion, or some illicit
advantage, or misled by the artful misrepresentations of
interested men, may call for measures which they themselves
will afterwards be the most ready to lament and condemn. In
these critical moments, how salutary will be the interference
of some temperate and respectable body of citizens, in order
to check the misguided career, and to suspend the blow
mediated by the people against themselves, until reason,
justice and truth, can regain their authority over the public
mind? 7
It is not surprising, then, that the Senate developed a very different way of
doing business than did the House. From the beginning, the Senate operated
like a small club, emphasizing deference to each member, informal rules and
personal relationships.' 8 Its small size certainly contributed to that
atmosphere. The original Senate, of course, had only twenty-six members;
they could (and probably did) talk informally as a group in a boarding house
16 1 Farrand, supra note 13, at 422.

17 JAMES MADISON, WRITINGS 347 (Library of America, Jack N. Rakove ed., 1999) (The Federalist
No. 22).
18 An excellent popular account of the earlier years of the Senate, and its operation up until the
election of Lyndon Johnson as Majority Leader, can be found in ROBERT A. CARO, MASTER OF THE
SENATE 3-105 (2002). See generally BuRDETT A. LOOMIS, THE CONTEMPORARY CONGRESS 18-32, 179-81
(3d ed. 2000).
dining room. They were mostly well known to one another, as they
represented the political elite of the day. The Old Senate Chamber, restored
after being burned in the War of 1812, contained only forty-eight desks and
was in use until 1859.19 It is a small room, and viewing it today gives one a
feeling for the intimate atmosphere of the early Senate. The Senate had only
forty-four members in 1820, sixty in 1850 and seventy-six in 1880. It did not
reach 96 until 1912. This small size allowed constant personal interaction
among members and encouraged informal ways of doing business. Today,
with 100 senators, the members of the majority party can still meet
comfortably in a modest-sized room for lunch.
Even in modem times, it is difficult to explain the unique atmosphere of
the United States Senate to someone who has not worked there or observed it
in depth. A number of established practices or traditions give a flavor of that
uniqueness. A single senator, for example, can place a "hold" on a piece of
legislation or a presidential nomination, effectively blocking action on that
piece of business.20 Committee chairs and the floor leadership give extreme
deference to the personal schedules of members and by tradition allow any
member to introduce amendments on the floor (absent unanimous consent
agreements limiting debate). Through something called "senatorial courtesy,"
members of the majority party from a state must pre-approve presidential
nominations from the state. 2 ' Perhaps most importantly, the Senate has no
germaneness rule on general legislation, as in the House, so that members can
bypass the normal committee process, and defeat the majority's agenda-
setting efforts, by introducing controversial matters or even whole bills as
amendments to pending legislation. 22 Even the Senate's floor recognition
traditions are different from those of the House, and do not allow the Chair to
restrict recognition on the basis of the requester's purpose. 23
The Senate does have published rules, to be sure, but they are far fewer
19 CARO, supra note 18, at 4.

20 See TIEFER, supra note 1, at 561; WALTER J. OLESZEK, CONGRESSIONAL PROCEDURES AND THE
POLICY PROCESS 206-07 (4th ed. 1996). At some times in the Senate's history, holds have been treated as
inviolate, but at other times have operated merely as delaying mechanisms or requirements that a senator be
notified before action is taken. In recent years, holds have increasingly been recognized as implicit threats
to filibuster. See RICHARD S. BETH & STANLEY BACH, CONGR. RESEARCH SERV., FILIBUSTERS AND
CLOTURE IN THE SENATE 22-23 (updated Mar. 28, 2003); BARBARA SINCLAIR, UNORTHODOX
LAWMAKING: NEW LEGISLATIVE PROCESSES IN THE U.S. CONGRESS 43 (2d ed. 2000). For a useful
discussion of recent obstructionist tactics in the Senate, including the use ofholds, see C. Lawrence Evans
and Daniel Lipinski, Obstruction and Leadership in the U.S. Senate, in CONGRESS RECONSIDERED
(Lawrence C. Dodd & Bruce I. Oppenheimer eds., 8th ed. 2005).
21 1 CONGRESSIONAL QUARTERLY'S GUIDE TO CONGRESS 281-82 (5th ed. 2000).
22 TIEFER, supra note 1, at 584; OLESZEK, supra note 20, at 71, 117.
23 TIEFER, supra note 1,at 498; see also OLESZEK, supra note 20, at 232; SINCLAIR, supra note 20, at
41; BETH & BACH, supra note 20, at 2-3.

than those of the House and are often waived or ignored. Professor Tiefer in
his treatise on congressional procedure has observed that the Senate often
does not follow its rules, preferring to make up individualized procedures by
24
unanimous consent, and follows an extremely flexible daily schedule. In the
Senate, as I found during my years as a Committee General Counsel,
traditions and parliamentary precedents are much more important than written
rules.
By contrast, the House developed a very different procedural culture after
its first few years. Its much larger size makes tight agenda control and
restrictions on floor debate imperative. Over the years the House adopted
rules limiting debate and floor amendments, established a powerful Rules
Committee to control the agenda and the mechanics of floor deliberation, and
followed a strict germaneness rule.25 Even today, House members are usually
limited to very short floor speeches. One can imagine the gridlock that would
ensue if it were otherwise - each of the 435 members of the House could offer
his or her pet amendments at any time, debate them as long as desired, and
prevent final action. Of necessity, the House has developed much more
more closely. 26
detailed parliamentary rules and follows them much
Summing up, Walter Oleszek writes that "House rules are designed to permit
a determined majority to work its will. Senate rules, on the other hand, are
intended to slow down, or even defer, action on legislation by granting
inordinate parliamentary power (through the filibuster,
27
for example) to
individual members and determined minorities.,
Understanding this unique culture helps one to appreciate the special place
of extended debate in the Senate. It is an important reinforcing element to the
Senate's key roles of slowing down legislation, and of protecting minority
views and the interests of the States. Whereas the House may reflect the
popular will of the moment, the Senate may force more mature reflection.
What better device to slow down precipitous action or force full consideration
of the pros and cons of a controversial measure than extended debate?
Senator Robert Byrd, perhaps the leading Senate historian and one of its
24 TIEFER, supra note 1,at 467; OLESZEK, supra note 20, at 227; SINCLAIR, supra note 20, at 35. For
an excellent analysis of the legal and constitutional status of congressional rules, see Stanley Bach, The
Nature of CongressionalRules, 5 J.L. & POL. 725 (1989)
25 TIEFER, supra note 1,at 47; OLESZEK, supranote 20, at 26-27, 266-67. Interestingly, Binder and
Smith point out that the early rules of the House and Senate were quite similar, and that both allowed for
unlimited debate. BINDER & SMITH, supra note 1,at 34.
26 Though it may change its way of doing business at any time, as I will argue in Part III, infra. As
Stanley Bach has pointed out, the different approaches taken by the House and Senate to following rules are
entirely voluntary, the result of different traditions and culture. See Bach, supra note 24. See also LOOMIS,
supranote 18, at 171.
27 OLESZEK, supra note 20, at 27.
Journalof Law & Politics [Vol.X-X:505
greatest parliamentary experts, went so far as to write that "the right of

extended, and even unlimited, debate is the main cornerstone of the Senate's
uniqueness. It is also a primary reason that the United States Senate is the
most powerful upper chamber in the world today." 28 This is not the place to
recite the history of extended debate in the Senate, which has been ably done
by historians, political scientists and legal scholars. 29 The main elements of
that history seem clear. The body functioned quite well with no limits on
debate for some years, though occasionally it had to tolerate lengthy debate
on some measure, as the Framers evidently intended. The majority, if it felt
strongly enough, simply waited out the minority to get its way or used other
parliamentary devices to move to a vote.30 The first real "filibusters," in
which members attempted to defeat a measure entirely by extending debate
until the other side gave in, did not occur until the mid-nineteenth century.
Tiefer dates the first successful filibuster to the defeat of the Force Bill in
1890-91.3 As Seitz and Guerra point out, the first effort to limit the filibuster
by adopting a rule to allow a super-majority of the Senate to end debate did
not come until 1917, more than 125 years after the first Congress convened.32
Generally, senators exercised considerable restraint in exploiting the tradition
of unlimited debate even after 1917.33 For much of its history, members used
the filibuster only on sectional issues, most notably to block civil rights
legislation, and thus did not threaten the routine functioning of the Senate.
Liberals discovered the filibuster in the 1970's, followed by non-southern
conservatives. The landscape has changed significantly in recent years, and
today the threat of filibuster is a common occurrence.34
28 BYRD, supra note I, at 162.

29 An excellent compilation of Senate materials, without analysis, is presented in CONGRESSIONAL
RESEARCH SERVICEfor SENATE COMM. ON RULES AND ADMIN., 99TH CONG., SENATE CLOTURE RULE:
LIMITATION OF DEBATE IN THE CONGRESS OF THE UNITED STATES AND LEGISLATIVE HISTORY OF
PARAGRAPH 2 OF RULE XXII OF THE STANDING RULES OF THE UNITED STATES SENATE (CLOTURE RULE)
(Comm. Print 1985) [hereinafter SENATE CLOTURE RULE].
30 Political scientists Binder and Smith sum up the Senate's early period this way: "Their actions
show
that they were aiming for nothing more than a simple majority, perhaps through a motion to postpone, to
stem debate." BINDER& SMITH, supranote 1,at 39.
31 TIEFER, supra note 1,at 694; SENATE CLOTURE RULE, supranote 29, at 15.
32 Seitz and Guerra, supra note 5, at 10; SENATE CLOTURE RULE, supra note 29, at 17, 105-07.
33 Barbara Sinclair discusses periods in the Senate's history in which members did not actively assert
their rights to unlimited debate, like the 1950's: "Senate rules then as now allowed unlimited debate and, in
most cases, unlimited amending activity. The restraint that characterized the Senate of that period was not a
function of rules; rather it depended on norms -unwritten rules ofbehavior- and on a political environment
in which acting with restraint was relatively costless to Senators." SINCLAIR, supra note 20, at 83.
34 Fisk and Chemerinsky, supra note 1,at 200-209; SINCLAIR, supra note 20, at 54 (noting that an
average of fifty cloture votes per Congress have taken place in recent years). Binder and Smith argue in
their excellent book on the filibuster that in light of modem developments significant reforms are needed to
control overuse of the tactic and to improve the Senate's effectiveness. BINDER & SMITH, supra note 1,at
This short discussion of the Senate's history and traditions shows that the
filibuster and the Cloture Rule are not simply parliamentary aberrations, but
fundamental elements of the Senate's operation. Both the filibuster and the
Cloture Rule present two different faces, depending on one's perspective.
The filibuster, of course, is not a rule, but more accurately the absence of rules
limiting debate. It can be seen as a practice enabling a small minority to
block passage of legislation favored by a substantial majority of senators,
obstructing the will of the people's representatives. But it can also be
characterized as a bulwark of minority rights and small state interests, and a
protection against the hysteria or misguidedness of a temporary majority.
Likewise the Cloture Rule can be viewed as a limitation on the tradition of
extended debate, and thus as a promoter of democratic values. But to the
advocate of simple majority rule, the Rule imposes supermajority voting
requirements on the Senate in defiance of those values. In truth, the filibuster
and the Cloture Rule are symbiotic and represent the Senate's deep
ambivalence about its extended debate tradition. In each era, senators have
recognized both the value and the curse of the filibuster. Senators sometimes
see the filibuster as blocking their favorite legislation, but they can also
anticipate situations in which they themselves might like to use it. The
modem Cloture Rule, putting aside constitutional arguments for the moment,
stakes out a middle ground, allowing some filibusters but also permitting
debate to be closed by sixty members. As Senator Byrd put it, "Filibusters are
a necessary evil, which must be tolerated lest the Senate lose its special ' 35
Representatives. "
strength and become a mere appendage of the House of
III. BOTH THE FILIBUSTER AND THE CLOTURE RULE MAY BE MODIFIED
OR ELIMINATED BY A SIMPLE MAJORITY OF THE SENATE
A. Background
Members of the Senate and scholars of the political process have long
argued over the wisdom and utility of the filibuster itself, and the Cloture
36
Rule which simultaneously enforces the filibuster and limits it. That policy
argument is beyond the scope of this article. Legal scholars have also debated
37
the constitutionality of both the filibuster and the Cloture Rule. Curiously,
though, the scholarly writing has assumed that the Cloture Rule is binding on
the Senate in some legal sense, apart from the effects of tradition and culture.
209-17.
35 BYRD, supra note 1, at 163.
36 See supra note I and authorities cited.
37 id.
Commentators such as Seitz and Guerra, and Fisk and Chemerinsky, while
taking very different positions generally, assume that the rule is binding and
proceed to analyze its constitutionality under that assumption.
In this section I argue that the entire constitutional debate on the Cloture
Rule may well be beside the point. If a simple majority of the Senate may
abolish the filibuster and has the power to modify or repeal the Cloture Rule
at any time, then the constitutional problems simply disappear. Assertions
that the Constitution's Rulemaking Clause, the principle of majority rule, or
the prohibition on legislative entrenchment, are violated have no force if the
Senate is not in fact restrained in some binding way by the filibuster and the
Cloture Rule. The case may not be wholly free from doubt, but convincing
arguments can be made for the proposition that a simple majority of Senators
can exert and has in fact exerted parliamentary control over the filibuster and
the Cloture Rule. While it has not always chosen to do so, I contend that a
simple majority of the Senate has ample power to eliminate both. If I am
correct, then the constitutional arguments fall away, and we are left with other
bases for the filibuster and the Cloture Rule - namely tradition, culture and
perceived self-interest.
B. DirectSenate Action to Limit Debate

The first Congress in 1789 had the undoubted constitutional power to
adopt rules governing the enactment process, including rules for floor debate.
It is important to recognize that both houses could at that initial point have
adopted rules limiting debate by simple majority vote, pursuant to their power
to control their own Rules of Proceedings.38 Neither did so, at least explicitly.
In order to accept the position asserted by Seitz and Guerra, that rules
requiring a supermajority to end debate are both binding and constitutional,
one has to accept a startling proposition. That is, the very first Congress
could have adopted a binding rule that future rule changes could not be made
at all. Since there is no analytical difference between sixty percent, two-
thirds, three-fourths or 100 percent, they must concede that the first Congress
could have forever prevented future changes in the rules and prevented any
limitation on debate. For reasons explored in Part IV, I argue that such an
action would have been unconstitutional for a variety of reasons. In any case,
it would surely have been ignored by future congresses. 39 But if the first
Congress had the unfettered power under the new Constitution to adopt by a
38 U. S. CONST., art. I, § 5, cl. 1. The Rulemaking Clause, as I call it for convenience, is explored in
more depth in Part IV. C. infra.
39 Moreover, as I show in Part IV, C.2. infra, it is highly unlikely that a federal court would intervene
to enforce such a "binding" rule.
simple majority any rule of debate it desired, when and how did it lose that
power? Why does it not still have that power today? Indeed, I argue below
that it does.
Since extended debate to defeat entirely a motion or substantive measure
was not used for the first sixty years of Congress, it is difficult to draw clear
lessons regarding the assertion of majority control over debate from the early
precedents. 40 There is a strong scholarly case to be made that the Senate used
the device of the motion for the previous question in its early years to end
debate by majority vote.41 We know that the House in the nineteenth century
adopted ever stricter rules governing debate, gradually becoming a strict
majority-rule chamber.42 How, we might ask, does the House possess the
constitutional power to limit debate by simple majority vote, and yet the
Senate not have that same power? The fact that the Senate did not always
choose to assert the power is beside the point. Likewise, no one argued in
1917 when the Senate's first Cloture Rule was adopted that any supermajority
was need for passage. Quite the contrary; prominent members of the Senate
argued at the time that limits on debate could always be adopted by a simple
majority.4 3 By inference, of course, they could be repealed or amended by the
same simple majority. While many by 1917 wanted to abolish the filibuster
altogether, they settled on a two-thirds Cloture Rule. 44
Modifications in the Cloture Rule were occasionally made after 1917,
notably closing a major loophole to apply cloture to debate on procedural
motions as well as final passage in 1949. 4 ' Again, a supermajority was not
40 I discuss this history in greater depth in Part IV.A infra.
41 Fisk & Chemerinsky, supra note 1, at 188. Extensive materials were inserted into the
Congressional Record by Senator Paul Douglas in January 1961 during one of the intense debates over
changing the Cloture Rule. Most notable is a series of letters and memoranda by Madison biographer
Irving Brant analyzing congressional and parliamentary practice and asserting that the motion for the
previous question had allowed a majority to limit debate. 107 CONG. REc. 241-56(1961). Senator Russell,
a key opponent of cloture reform, later inserted a scholarly study by Joseph Cooper into the Congressional
Record that arrived at the opposite conclusion. RICHARD B. RUSSELL, THE PREVIOUS QUESTION: ITS
STANDING AS A PRECEDENT FOR CLOTURE IN THE UNITED STATES SENATE, SEN. DOC. 104 (1962).
42 Congressional scholar Barbara Sinclair points out that the House had no formal limitations on
debate in its early years, and adopted the first real restriction in 1811. The highly restrictive Rules
Committee process familiar to us today did not emerge until the 1880's. SINCLAIR, supra note 20, at 5-6.
See also TIEFER, supra note I, at 253-56.
43 BRIEF IN SUPPORT OF PROPOSITION THAT AMAJORITY OF THE SENATE HAS THE POWER TO AMEND
ITS RULES AT THE BEGINNING OF ANEW CONGRESS, 107 CONG. REC. 232,237 (1961) [hereinafter BRIEF
OF SIX SENATORS] (citing statement of Senator Walsh). The brief, presented by Senator Paul Douglas and
signed by Douglas, Hubert Humphrey, Thomas Kuchel, Jacob Javits, Joseph Clark, and Clifford Case, was
part of the 1961 fight over the rules.
4 Id. See also SENATE CLOTURE RULE, supra note 29, at 105-07. Binder and Smith conclude that a
majority in 1917 actually favored majority cloture, but compromised for larger political reasons. BINDER &
SMITH, supra note I, at 79.
45 TIEFER, supra note 1, at 702; Fisk & Chemerinsky, supra note 1, at 198-99; SENATE CLOTURE
Journalof Law & Politics [VoI.XX:505
required to adopt that change, though in 1949 for the first time the Senate
explicitly adopted a rule requiring a super-majority to end debate on a change
in the rules.46 That had the effect of further entrenching the Cloture Rule and
making future change more difficult. That 1949 corollary to the main Cloture
Rule soon became the main focus of controversy.
The question whether a simple majority of senators could change the rules,
and thus exert control over both the Cloture Rule and the filibuster itself,
became the subject of intense debate between traditionalists and reformers
beginning in the 1950's. In 1953, 1957, 1959, 1961, 1963 and 1967,
organized efforts were made at the beginning of a congress to assert the
principle of majority rule. Each time a majority of senators failed to support
the reformers, though Vice Presidents Nixon and Humphrey delivered non-
binding opinions from the Chair that the Rulemaking Clause of the
Constitution ensured the right of each successive Senate to change its rules by
a simple majority. 47 A majority of senators were apparently not persuaded
that the existing balance between filibuster and cloture was not in their
ultimate best interest. The cloture question at this point in our history was
intimately tied to the battle over civil rights legislation, and thus received
considerable public attention. In the election campaign of 1960, for example,
the platforms of both parties endorsed changes in the Cloture Rule to allow
majority rule.4 8
The Senate finally reasserted its original majority rule power in 1975.
Again aided by a sympathetic Vice President (presiding over the Senate)
willing to make favorable parliamentary rulings, and by a cooperative
majority leader, the reformers obtained a ruling from the Chair that debate on
a rule change at the beginning of a new congress could be closed by a simple
majority. In a historic moment, the ruling was upheld by vote of 51-42,
effectively deciding that cloture could be invoked by a simple majority. 49 The
RULE, supra note 29, at 21, 109-12.
46 Id.
47 TIEFER, supra note 1,at 702; SENATE CLOTURE RULE, supra note 29, at 22-26; BINDER & SMITH,
supranote 1, at 168-76. Some reformers, then as now, argue that changes in the Senate's rules by a simple
majority can only take place at the beginning of a new congress, while others argue that the power can be
exercised at any time. See BRIEF OF SIX SENATORS, supra note 43, at 232-33. For purposes of this article
the difference is not critical, though I argue that the majority may exercise its authority at any time. The
"continuous power" interpretation of the Rulemaking Clause seems the most obvious one, particularly since
the division into two-year "congresses" is not based on any constitutional requirement, but rather was
created for legislative convenience. On the practical side, the need for legislators to adapt rules to new
economic or political realities can arise during a congress as well as between congresses. On a few
occasions, control has even changed hands between elections, and the principle underlying the Rulemaking
Clause would seem to require majority control over rules at that time. See infra Part IV.C.
48 BRIEF OF SIX SENATORS, supra note 43, at 232-33.
49 TIEFER, supra note 1, at 702-06; SENATE CLOTURE RULE, supra note 29, at 31, 120. Reinforcing
2004] Constitutionalityof the Senate ClotureRule
majority, having established its constitutional authority, could have at that

point adopted sweeping rules changes to eliminate the filibuster, but it shrank
from any such radical action. 50 Perhaps realizing that the filibuster in some
form might some day be of parliamentary value to them as well, the liberals
pursued the more modest goal of loosening the Cloture Rule to make it easier
to invoke while not destroying the Senate's long tradition of extended debate.
Though the vote stood for two weeks, traditionalists and reformers worked
behind the scenes and finally presented to the Senate a compromise package
reducing the required cloture vote from two-thirds of those present to sixty
percent of those elected and serving. As part of the compromise, the
reformers agreed to reconsider the historic 51-42 vote asserting simple
majority rule, and reversed it. 5' Senator Robert Byrd, the Senate's leading
procedural expert, noted at the time that though the Senate might attempt to
cover its procedural tracks it would now be clear to members and historians
52
alike that a simple majority had the power to change the rules. As Professor
Tiefer has expressed it, the reconsideration vote was a face-saving device to
53
preserve the Senate's traditions, but "the Rubicon had been crossed.
In 1979, Majority Leader Byrd proposed changes to the Cloture Rule to
prevent the post-cloture tactics of Senator James Allen and others, who had
used multiple amendments and other maneuvers to draw out debate
indefinitely even after cloture had been invoked. In discussing his proposals
for changes to the rules, he reminded Senators that the principle of majority
control over the rules at the beginning of a new congress had been established
54
in 1975 and succeeded in discouraging a filibuster of the rules proposals.
Given the events of 1975, there is no reason why the current Senate, or any
future Senate, could not again assert its control over the filibuster or the
Cloture Rule by simple majority vote. It would not be easy, given the
strength of the Senate's tradition, its recognition of the value of the filibuster
across the political and ideological spectrum, and the normal reluctance of
any long-standing institution to adopt radical changes. The fact that a
majority of the current Senate cannot bring itself to change the rules, even
though it opposes the use of the filibuster against presidential nominations, is
my point, there was actually a second majority vote confirming the first several days later. SENATE
CLOTURE RULE, supra note 29, at 120.
so Binder and Smith conclude that "[c]learly, a majority of senators favored an interpretation of the
Constitution and Senate Rules that would have permitted a simple majority to close debate on new rules at
the beginning of a Congress." BINDER& SMITH, supranote 1, at 182.
SI Id.
32 121 CONG. REC. 5243, 5249 (1975). For more on this episode, see BYRD, supranote 1,at 131-33.
53 TIEFER, supra note 1, at 705.
54 SENATE CLOTURE RULE, supra note 29, at 125.
Journal of Law & Politics [Vol.XX:505
a testament to the Senate's resistance to change and not proof of a lack of

power to do so.
C. Indirect Changes in the Rules - "FastTrack" Legislation

As we have seen, the Senate demonstrated in 1975 that it can, by simple
majority vote, modify or repeal the Cloture Rule directly. The persistence of
ultimate majority control that I argue for is further illustrated by the
increasingly common practice of limiting debate, and effectively amending
the Cloture Rule, by means of ordinary legislation. Thus, without changing
the Cloture Rule and without complying with the provision of the Cloture
Rule that requires a two-thirds majority to cut off debate on a rules change,
the Senate indirectly alters its debate rules for certain kinds of issues.
As the filibuster, and the threat of its use, have become much more
common in the last thirty years, Congress has passed a number of laws that
explicitly limit debate in future congresses on certain defined legislative
actions. Most prominent of the these are the long-standing provisions in the
Budget Act55 and in Fast Track Trade Legislation,56 but there are many others,
including the recent mechanism for reviewing agency rules in the
Congressional Review Act. 57 These provisions, ably summarized and
analyzed by Aaron-Andrew Bruhl,5 8 have a common theme. They attempt to
assure prompt action on a legislative issue viewed by the Senate and the
House as especially important and especially vulnerable to the filibuster.
They accomplish this by explicit changes to various procedural rules, by
overall limits on debate, or by restricting amendments. 59 For the Senate, that
often means indirect modifications to the Cloture Rule.
The use of these laws to limit or eliminate the threat of a filibuster was
analyzed in depth by Professor Tiefer in the context of three controversial
legislative actions in 2001 - enactment of the President's massive tax cut,
renewal of the President's "fast track" trade authority, and disapproval of the
Clinton Administration's workplace ergonomics rule through the
Congressional Review Act process. 60 Professor Tiefer points out that none of
"' See 2 U.S.C. §§ 636(b), 641(e) (2000).

56 See 19 U.S.C. § 2191 (2000), and see especially § 2191(g) on Senate rules.
" See 5 U.S.C. §§ 801-808 (2000), and see especially 802 (c) and (d) on Senate procedures.
58 Aaron-Andrew Bruhl, Using Statutes to Set Legislative Rules: Entrenchment, Separation of
Powers, and the Rules ofProceedingsClause, 19 J.L. & POL. 345 (2003). For a list of the most important of
these provisions, see id. at 346 n.9.
59 See, e.g., 5 U.S.C. § 912 (2000) (Executive Reorganization); 2 U.S.C. § 636 (b) (2000) (Budget
Resolutions).
60 Charles Tiefer, How to Steal a Trillion: the Uses ofLaws About Lawmaking in 2001, 17 J.L. & POL.
409 (2001).
these measures commanded the sixty votes necessary to cut off debate under
the Cloture Rule, and yet all avoided the filibuster because the Senate
complied6 1 with special rules governing debate embodied in the relevant
statutes.
The battle over President Bush's tax cut is especially revealing because it
involves the most important debate-limiting statute yet passed by the
Congress: the provision of the Budget Act that exempts reconciliation bills
62
from the Senate Cloture Rule. By the very controversial route of declaring
the tax cut to be part of a reconciliation bill, the Republican leadership in the
Senate was able to pass it by simple majority vote despite a 50-50 split in that
63
body and to prevent the otherwise inevitable filibuster.
I should hasten to add that under my view of the Constitution, these laws
about lawmaking are not binding on future congresses and can be modified or
ignored at any time. 64 Some contain a standard disclaimer preserving the
power of each future House and Senate to change them under the Rulemaking
Clause of the Constitution, but its inclusion does not seem to make any
65 Not
difference in whether the chambers choose to respect the debate limits. 66
provisions when it suits them
surprisingly, both houses ignore many of these
(though the rules on reconciliation bills have surprising staying power). It
also follows from the arguments made in this article that if these fast-track
provisions limiting future debate were binding in some legal sense, they
would be unconstitutional. The fact that any debate-limiting provisions can
be changed or ignored at any time does not make them useless, of course. As
Professor Tiefer demonstrates, they represent Congress's effort to discipline
itself, and exert power because they serve a useful purpose and not because
they are legally or constitutionally binding.
The implication of these debate-limiting statutes for our argument is
straightforward. It can only be possible for Congress to pass statutes that
61 Id. at 410-20.
62 Scholarly commentary on these provisions of the Budget Act is immense. See, e.g., Kate Stith,
Rewriting the Fiscal Constitution: The Case of Gramm-Rudman-Hollings,76 CAL. L. REV. 593 (1988);
Elizabeth Garrett, The CongressionalBudget Process: Strengthening the Party-In-Government, 100
(2000);
COLUM. L. REV. 702 (2000); ALLEN SCHICK, THE FEDERAL BUDGET: POLITICS, POLICY, PROCESS
Fisk & Chemerinsky, supra note 1, at 215.
63 Tiefer, supra note 60, at 425-57. Professor Tiefer points out that interpreting the Budget Act to
include tax cuts within the definition of a reconciliation bill was so controversial that it resulted in the firing
of the widely respected Parliamentarian of the Senate, who was viewed by Republicans as insufficiently
committed to their interpretation of the Budget Act's rules. Id. at 440. More broadly, Tiefer quotes
political scientist Keith Krehbiel to the effect that use of this device prevented filibusters in the 1981 and
1993 budget processes as well, when simple majorities were able to work their will. Id. at 432-33.
' See infra Part IV.
65 See Bruhl, supra note 58, at 363-69, nn.79-80.
6 Id. at 366.
Journal of Law & Politics [VoI.YXX:505
have the practical effect of limiting debate on certain kinds of measures

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

THE LETTER AND SPIRIT OF THE CONSTITUTION
Let us assume now that the preceding argument is wrong, and that the
Senate Cloture Rule is binding in the legal sense - that each succeeding group
of senators is somehow required to follow its supermajority voting
requirements. I argue in this section that such a rule, and indeed any binding
supermajority voting rule, would be unconstitutional.
A. The Relevance of the Senate's ParliamentaryHistory

Initially, we must dispose of an argument that Virginia Seitz and Joseph
Guerra rely on heavily in their analysis of the Cloture Rule - namely, that the
Senate's use of the Cloture Rule over its history creates a strong presumption
of constitutionality, which must be overcome by strong textual evidence in the
Constitution itself.67 If indeed the Senate had a clear and unbroken history of
support for the constitutional appropriateness of the Cloture Rule, that
argument might have some force, though it did not prevent the Supreme Court
67 See Sietz & Guerra, supra note 5, at 7-15. I would also point out that the arguments in Part IV show
strong textual support sufficient to overcome any presumption from past practice in any case.
20041 Constitutionalityof the Senate Cloture Rule
68
from rejecting the legislative veto in Chadha. As we shall see, however, the
Senate's attitude about cloture rules shows no such consistency.
Read fairly, the history of the Senate's efforts to limit debate reveals as
much indifference or opposition than support for the constitutionality of such
rules. As Fisk and Chemerinsky have shown, the use of the filibuster has
changed significantly over time, making generalizations about the Senate's
attitude difficult. 69 From 1789 until 1806, it can be argued that the Senate
indirectly endorsed majority voting control over debate, since there was a
70
motion for the previous question in Senate Rules. As Barbara Sinclair,
Charles Tiefer and others have noted, there was little use of extended debate
to block legislative action during the next fifty years, so it is certainly hard to
argue that the Senate supported the constitutionality of supermajority voting
to end debate. 7 ' It simply was not a burning issue up to the 1860s, as senators
managed to deal with occasional uses of extended debate without any special
parliamentary devices to end it.
During the second half of the nineteenth century, as filibusters to block
legislation became a reality, the Senate struggled with the cloture issue but
never adopted any supermajority voting rule to end debate. Despite Seitz and
Guerra's assertion of consistent support over time for the constitutionality of
supermajority cloture, it is hard to make that argument for this period. A
fairer interpretation of the historical record would be that Congress was
deeply divided both on the wisdom and the constitutionality of limiting debate
by a supermajority.72
The first supermajority rule to limit debate in the Senate was not adopted
until 1917. After a brief flurry in its first ten years of existence, the new
Cloture Rule was not used again until 1964. Filibusters were not seen as a
73
general threat to legislation during this period, and were not often used,
74
except against civil rights legislation. The Senate, then, had little occasion
68 Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983).

69 Fisk & Chemerinsky, supra note 1,at 209-14.
70 See note 41 supra. In his study of the Senate's early years, Roy Swanstrom found no evidence of
SENATE,
parliamentary devices designed specifically to limit debate. Roy Swanstrom, THE UNITED STATES
1787-1801, S. Doc. No. 99-19, at 210-13 (1985).
71 SINCLAIR, supra note 20, at 6; TIEFER, supra note 1,at 693.
72 Binder and Smith's study argues that many in the Senate realized the need for limiting filibusters in
some see as a
the second half of the nineteenth century, but were unable to accomplish change. "What
about the desired character of the Senate largely reflected the inability of Senate reformers to
consensus
supra note I, at 78. They develop a list of nineteen "great" senators
change the rules." BINDER & SMITH,
cloture. Id. at
during the nineteenth century, and conclude that a preponderance of them favored majority
70-74.
73 TIEFER, supra note 1,at 696-98.
74 See BINDER & SMITH, supra note 1, at 85-86.

Journalof Law & Politics [Vol.X-X:505
to debate the constitutionality of the practice.

Whatever consensus that may have existed in the Senate about the 1917
Cloture Rule was surely shattered beginning in the 1950s. Our best accounts
of this later period, such as the study done by the Congressional Research
Service7 5 and Senator Byrd's history of the Senate,76 show that the
constitutionality of supermajority cloture was under almost constant assault
from 1950 on. Many prominent senators, and several Vice Presidents sitting
as presiding officers, expressed the view that a majority could end debate."
Moreover, the fact that these efforts did not succeed until 1975 cannot
necessarily be ascribed to the fact that a majority of the Senate believed
supermajority cloture was constitutional. As Fisk and Chemerinsky have
pointed out, the reluctance of a majority to uphold Chair rulings to that effect
in 1957 and 1969 may be due as much to ambivalence about the usefulness of
the filibuster, and to a growing feeling among liberals (who were pushing for
majority cloture) that the filibuster might be useful to them in the future.78
Clearly, senators were not unified in their support of supermajority cloture, as
Seitz and Guerra would have us believe. A more accurate view would be that
expressed by Majority Leader Lyndon Johnson as he introduced a resolution
for modification of the Cloture Rule in 1959:
Some believe that rule XXII of the Standing Rules of the

Senate should be changed drastically. Some feel it should
not be changed at all. Others among us feel that a
constructive measure of responsibility can be added to the
rule without a nonconstructive sacrifice of old standards of
free debate.79
In any case, after 1975 it is extremely difficult to argue that a majority of

Senators support the constitutionality of supermajority cloture. As we have
seen, not once but twice did a majority assert the principle of majority cloture,
80
and the argument supporting its position was explicitly a constitutional one.
While the majority did not press its advantage, out of its conflicting attitudes
toward cloture, its power had been established. Even today, a majority of the
75 SENATE CLOTURE RULE, supra note 29, at 21-35. A majority of senators actually voted with the
liberals seeking to establish the principle of majority cloture in 1964, though they eventually lost the
parliamentary battle on that occasion. Id. at 26.
76 BYRD, supra note 1, at 128-32.
77 Id. at 127-32.
78 Fisk & Chemerinsky, supra note 1, at 212.
79 105 CONG. REc. 8 (1959).
go See supra Part 1II.B.
Senate may well believe that the Cloture Rule's application to debate on
nominations is unconstitutional, though it is unwilling to press the principle of
majority rule.
In summary, whatever force Senate practice may have in the constitutional
debate is severely limited by a more nuanced understanding of its history. Its
very earliest precedents show no support for supermajority cloture. The
middle period shows growing anxiety over unlimited debate but
unwillingness to impose supermajority cloture. One might argue that Senate
practice from 1917 to 1950 endorsed the constitutionality of supermajority
cloture, but that consensus gave way to almost constant parliamentary warfare
culminating in a victory for majority rule in 1975. Since that time, I would
argue that the Senate's tolerance for supermajority cloture shows not a
constitutional consensus but a cultural one based on the traditions and values
of the chamber.
B. The Impact of Majority Rule Principles

In considering the constitutionality of devices like the Senate Cloture Rule,
which prevents (assuming, again, that it is binding) a simple majority from
closing debate and moving to a final vote, it is tempting to argue that the
democratic principle of majority rule decides the question. Adoption by the
Republican House in 1995 of a rule requiring a three-fifths vote for future tax
rate increases touched off a lengthy and interesting scholarly debate on this
very question. 8' For those of us who might have thought that violation of
majority rule principles was a clear justification for rejecting a binding
Cloture Rule, the result was sobering. Majority rule in a republican
government turns out to be a surprisingly complicated concept. As we shall
see, only when one combines majority rule principles with two other key
81 See Comment, An Open Letter to Congressman Gingrich, 104 YALE L.J. 1539 (1995) (arguing that
the supermajority rule is unconstitutional). The open letter was signed by seventeen distinguished law
professors. For a reply, see John 0. McGinnis & Michael B. Rappaport, The Constitutionality of
Legislative Supermajority Requirements: A Defense, 105 YALE L.J. 483 (1995) (arguing that the
supermajority rule is constitutional because it can be waived by a simple majority of the House). The
debate was continued in Jed Rubenfeld, Rights ofPassage:Majority Rule in Congress, 46 DUKE L.J. 73
(1996) and John 0. McGinnis & Michael B. Rappaport, The Rights of Legislators and the Wrongs of
Interpretation:A FurtherDefense of the ConstitutionalityofLegislative SupermajorityRules, 47 DUKE L.J.
327 (1997). Other useful contributions are found in Neals-Erik William Delker, The House Three-Fifths
Tax Rule: Majority Rule, the Framers'Intent, and the Judiciary'sRole, 100 DICK. L. REV. 341 (1996);
Brett W. King, Deconstructing Gordon and Contingent Legislative Authority: The Constitutionalityof
LegislativeSupermajorityRules, 6 U. Cm. L. SCH. ROUNDTABLE 133 (1999); and Robert S. Leach, House
Rule XXI and an Argument Against a ConstitutionalRequirementfor MajorityRule in Congress,44 UCLA
L. REv. 1253 (1997). Of course the general question of the centrality of majority rule in a democratic
society was not a new one in 1995, but has been a topic of dispute among political philosophers for several
hundred years.
concepts - the constitutional rulemaking power and the anti-entrenchment

principle - can the serious student of this issue feel comfortable in concluding
that a binding Cloture Rule and rules like it would violate the Constitution.
We all feel intuitively that there is some bedrock notion of majority rule at
the core of American governmental institutions. After all, just about any
committee, board or other decision-making body operates on the assumption
that a simple majority of those present decides disputed questions. For
governmental bodies, it seems implicit in the idea of popular sovereignty, and
in the rule of one-person-one-vote, that simple majorities should prevail. But
such overall generalizations are actually of little help in resolving the more
specific question that needs to be answered here. Namely, do principles of
majority rule render unconstitutional binding supermajority rules of debate in
the U.S. Senate?
Seitz and Guerra dismiss the argument from rule majority principles
largely on the basis of other counter-majoritarian elements in the
Constitution.82 It is quite true that the Constitution as a whole does not follow
a consistent principle of majority rule. The Framers met in Philadelphia to
replace an inefficient and ineffective national government under the Articles
of Confederation with a stronger, better functioning structure. They were
practical politicians, and their handiwork reveals few consistent theoretical
principles. The Constitution they adopted contained many profoundly
undemocratic features, as Robert Dahl has pointed out in a recent provocative
book.83 The presidential veto, the creation of a Senate representing large and
small states equally, the method of counting slaves for purposes of
representation in the House, the Electoral College and many other
constitutional provisions belie the notion that the Framers always followed
majority rule principles. The Framers had political problems to contend with,
given that the Constitution would be submitted to the states for ratification,
and they had a profound suspicion of untrammeled majority rule. 84 The later-
adopted Bill of Rights, insisted upon by the people during the ratification
struggle, shows clearly that some rights were to be insulated from pure
majority rule.
Aside from specific undemocratic features of the Constitution, we must
82 Seitz & Guerra, supra note 5, at 18-22. They also reject the argument by implication from other
specific supermajority rules in the text.
83 ROBERT A. DAHL, How DEMOCRATIC IS THE AMERICAN CONSTITUTION? (2001).
84 The Framers were well aware of the excesses of majority rule in some of the state legislatures, and
partly out of distrust for those bodies they decided that the new Constitution should be ratified by special
state conventions, not by state legislatures. See John C. Roberts & Erwin Chemerinsky, Entrenchment of
OrdinaryLegislation: A Reply to ProfessorsPosner and Vermuele. 91 CAL. L. REv. 1773, 1802 (2003).
also acknowledge that Congress has developed a number of profoundly

undemocratic structures, procedures and traditions like the committee system,
legislative holds, and the like, and that we have come to accept them as a part
of our legislative system. Commentators have also argued that the existence
of these practices shows that there is no underlying principle of majority rule,
to make it difficult for majorities to get their way.85
since they all work
But pointing out that the Constitution contains anti-majoritarian elements
does not prove that it contains no majoritarian ones. It only demonstrates that
we have a mixed legislative model. Since the Framers were creating a
working government, they may well have wanted simple majority voting rules
even though they adopted other undemocratic structures. Commentators like
Seitz and Guerra who place too much emphasis on the non-majoritarian parts
of the Constitution, or for that matter on nonmajoritarian legislative practices,
try to prove too much with that argument. We must look for other more
probative evidence on the specific issue we are addressing, the matter of
voting rules on the floor of the House and Senate.
We may first ask whether at the time the Constitution was conceived and
adopted there were any generally accepted principles of floor voting in
legislative bodies, since there are points in the analysis when a default or
background principle can be helpful in resolving ambiguities. Most
authorities appear to agree that majority voting was the accepted norm in
legislative bodies of the day. 86 It seems to have been the rule in the English
Parliament, upon which our national legislature was modeled. Jefferson's
Manual, written by Thomas Jefferson while presiding over the Senate as Vice
President and reflecting his understanding of the general practice of the day,
87
describes majority voting as the norm. I have seen nothing in the scholarly
evidence to contradict the notion that the early House and Senate operated
under majority rule.88 The Supreme Court declared, in its most important case
85 See Eric A. Posner & Adrian Vermeule, LegislativeEntrenchment: A Reappraisal, Il1 YALE L.J.
1665 (2002).
" See, e.g., Rubenfeld, supra note 81, at 77; King, supra note 81, at 181-82 and n.224 (citing
authorities).
87 See CONSTITUTION, JEFFERSON'S MANUAL AND RULES OF THE HOUSE OF REPRESENTATIVES
(1797), H.R. Doc. No. 107-284, at 266 (2003) ("[t]he voice of the majority decides, for the lex majoris
partis is the law of all councils, elections, &c., where not otherwise expressly provided.") [hereinafter
HOUSE MANUAL]. Today's parliamentary experts agree. See WILLIAM HOLMES BROWN & CHARLES W.
JOHNSON, HOUSE PRACTICE A GUIDE TO RULES, PRECEDENTS AND PROCEDURES OF THE HOUSE 935
(Gov't Printing Office 2003) (referring to majority voting as a "fundamental precept of parliamentary
law"); FLOYD M. RIDDICK & ALAN S. FRUMIN, RIDDICK'S SENATE PROCEDURE, PRECEDENTS AND
PRACTICES, S. DOC. NO. 101-28, at 912 (Alan S. Frumin ed. 1992) (Senate precedent "uniform" in
recognizing simple majority voting unless otherwise specified by Senate rules).
88 Binder and Smith came to the same conclusion. BINDER & SMITH, supra note 1,at 51 ("[S]enators
assumed that approval of legislation would require no more than a simple majority vote. There is no
on the Rulemaking Clause, that
The general rule of all parliamentary bodies is that, when a

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

default rule of the day, I would conclude that it does. The Framers may well
have thought that such a majority voting rule was perfectly obvious and did
not merit specific mention.
On the other hand, it has been cogently argued that the Framers'
specification of certain supermajority rules cannot prove that they did not
think others might also be in order. 94 Indeed, it might well show that the
Framers accepted and approved the use of supermajority rules where
appropriate. They might have intended to leave the adoption of other
95
supermajority rules to the Congress itself. The bare text of the Constitution
is probably not enough to resolve this question.96
We can also turn to the statements of Madison, Hamilton, Jefferson and
others about majority rule in an effort to answer the question at hand. To me,
at least, their statements during the Convention, in the ratification debates and
afterward lend strong support to the general principle of majority voting.
Madison wrote this explanation in The Federalist for why the Convention did
not adopt supermajority voting rules in Congress:
That some advantages might have resulted from such a

precaution, cannot be denied. It might have been an
additional shield to some particular interests, and another
obstacle generally to hasty and partial measures. But these
considerations are outweighed by the inconvenience of the
opposite scale. In all cases where justice or the general good
might require new laws to be passed, or active measures to
94 See, e.g., McGinnis & Rappaport, supra note 81, at 347-48.

9' This is not the place to discuss the extensive and contradictory principles of interpretation in
circumstances where a text specifies certain things and not others. Courts are not consistent on this point,
though on several occasions the Supreme Court has decided that the mention of specific conditions in the
Constitution implies the exclusion of any others. See, e.g. Marbury v. Madison, 5 U.S. (I Cranch) 137,
174-75 (1803) (listing of specific instances of original jurisdiction in Article II implies that no others are
permissible); Powell v. McCormack, 395 U.S. 486, 546 (1969) (listing of specific qualifications for
members of the House implies the exclusion of any others). On this authority, one could argue that the
inclusion of specific instances of supermajority voting implies that all other votes are by simple majority.
96 Two other textual arguments are sometimes made by those, like me, who believe that the overall
document supports a majority rule principle. One is that the Framers' adoption of a quorum rule specifying
a majority to do business implies that a majority of a quorum should suffice to carry any motion. But
quorum rules and voting rules are at least theoretically independent; one might advocate, as did Madison
himself on some occasions, that a supermajority quorum rule has the healthy result of ensuring that
members attend legislative sessions. Moreover, in practice the quorum rule was quickly interpreted to
allow members to do business with only a few present, so long as no one formally objected to the absence
of the quorum. It is also sometimes argued that the provision giving the Vice President a Senate vote only
in case of a tie implies that all votes must be by majority vote, but that seems to be putting a great deal of
weight on a specific provision aimed at a very narrow power.
JournalofLaw & Politics [VoI.XX:505
be pursued, the fundamental principles of free government

would be reversed. It would no longer be the majority that
would rule; the power would be transferred to the minority.9 7
Likewise Alexander Hamilton argued eloquently for the overall principle

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

98 1 DEBATES ON THE CONSTITUTION 510 (Library of America, Bernard Bailyn ed., 1993).
99 The seminal study of the Confederation period is Merrill Jensen's THE NEW NATION: A HISTORY
OF THE UNITED STATES DURING THE CONFEDERATION, 1781-1789 (1950). Madison wrote his paper
entitled "Vices of the Political System of the United States" before the Convention, and it describes many
problems with the Confederation. JAMES MADISON, WRITINGS 69 (Library of America, Jack N. Rakove
ed., 1999). Gordon Wood concludes that by the mid-1780s the Confederation Congress had "virtually
ceased trying to govern." GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC, 1776-1787, at
359 (1969). See also JACK N. RAKOVE, THE BEGINNINGS OF NATIONAL POLITICS: AN INTERPRETIVE
HISTORY OF THE CONTINENTAL CONGRESS 355 (1979).
1oo ARTICLES OF CONFEDERATION, art. 9, para. 6. A majority of states could adopt more routine
measures. Id. Voting was strictly by state. Id. at art. 5, para. 2. In practice, the states interpreted the
Articles to require that a majority of each delegation must be present for that state to vote, even for a
quorum. Ifa state had only two or three delegates, absences often meant the state could not vote at all. See
Rakove, supranote 99, at 355-56. The debilitating effect ofsupermajority voting and other special voting
practices is amply demonstrated in CALVIN JILLSON & RICK K. WILSON, CONGRESSIONAL DYNAMICS:
STRUCTURE, COORDINATION AND CHOICE IN THE FIRST AMERICAN CONGRESS, 1774-1789 135, 139-145,
19 1-192 (1994).
'01Madison, who was a member of the Confederation Congress, wrote to George Washington on
quite specific in cataloguing the procedural defects of the Confederation

Congress's voting rules:
To give a minority a negative upon the majority (which is

always the case where more that a majority is requisite to a
decision) is in its tendency to subject the sense of the greater
number to that of the lesser number. Congress from the non-
attendance of a few states have been frequently in the
position of a Polish Diet, where a single VOTE has been
sufficient to put a stop to all their movements. A sixtieth part
of the Union, which is about the proportion of Delaware and
Rhode-Island, has several times been able to oppose an intire
[sic] bar to its operations'02
During consideration of the proposal to require a two-thirds vote on

matters affecting interstate commerce, Roger Sherman said "that to require
more than a majority to decide a question was always embarrassing as had
been experienced in cases requiring the votes of nine states in [the
Confederation] Congress."' 0 3 The Convention therefore had good reason for
not including in the Constitution any supermajority voting rules for their
ordinary legislative business.'°4
Ultimately, though, the argument that supermajority voting rules are
foreclosed by a majority rule principle in the Constitution is not entirely
conclusive. I would interpret the evidence from the structure of the
Constitution, the debates and actions of the Convention, the statements of the
Framers, the background of the Articles of Confederation and the general
background principle of majority voting, to stand for a somewhat more
general proposition, which I call ultimate majority control. The idea
embodied in the Constitution is not that every institution must operate so as
not to block majority votes, or even that every vote on the floor of the House
and Senate must be a simple majority vote. Rather the notion is that the
March 16, 1787, that "Congress continue to be thin and of course do little business of importance." JAMES
MADISON WRITINGS, supra note 99, at 83. He reported to Thomas Jefferson in 1788, before the new
Congress convened, that the old Congress had not seen nine states in attendance "for some time," and in the
last week had not even seen the minimum of seven for routine business. Id. at 418. During the
Convention, Madison argued that "Experience shows that the confederation is radically defective, and we
must in a new national government, guard against these defects." I Farrand, supra note 13, at 497.
102 Supra note 98, at 511.
10311 Farrand, supra note 13, at 450.
104 See BINDER & SMITH, supra note 1,at 51 ("The delegates to the Constitutional Convention knew
full well from their experiences in the Continental Congresses that requiring supermajorities was a recipe
for stalemate and indecision.").
Journal of Law & Politics [VoI.X-X:505
Constitution demands ultimate control by a majority at all times. Thus, a
majority at Time One may choose to adopt a supermajority procedural rule
like the Cloture Rule, and may even operate under such a rule. Such a
practice does not offend the majority rule idea embodied in the Constitution
so long as a simple majority retains the power to alter or repeal the
supermajority rule at any Time Two in the future. Likewise, the majority may
tolerate, or even venerate, obstructionist institutions such as the committee
system or individualistic practices such as the legislative10hold
5
so long as a
simple majority may bypass or change them as it desires.
The concept of ultimate majority control in the Congress means, of course,
that supermajority rules are really illusory, since they can be repealed at any
time by the majority. Nonetheless, they may still be useful, as many feel the
Cloture Rule is. They may serve values of stability and fidelity to tradition.
Just as some legislative bodies require supermajorities to amend their rules in
the interests of continuity and predictability, even though a simple majority
may repeal the rule that requires the supermajority vote, so may the Senate
agree to use its Cloture Rule even though, as we have seen, it is ultimately
subject to simple majority rule. Many University faculties, for example,
adopt a rule providing that hiring of new faculty colleagues must be by more
than a majority vote, recognizing that hiring a colleague by a bare majority
may threaten the cohesion of the faculty and put the new teacher in a difficult
position. The rule may be followed by consensus because it is seen as wise,
even thought the majority has the power to repeal it at any time.
To fully understand the importance of majority rule in the Constitution,
and the concept I call ultimate majority control, it is necessary to discuss two
other interrelated concepts, the Rulemaking Clause of the Constitution and the
anti-entrenchment principle. For it is the interaction of these three ideas that
finally makes the constitutional case against binding supermajority voting
rules in the Senate a convincing one. That analysis will bring us to appreciate
more fully the insight of Professors McGinnis and Rappaport during the
debate over House Rule XXI. They wrote that in considering the
constitutionality of voting rules, procedural rules are ultimately more
important than substantive legislation. 106 Thus it is not necessary to argue that
105Thus the argument that binding rules for limiting debate are no different in their effect than the
committee system or individualistic Senate traditions misses the point. Binding supermajority rules are
unconstitutional because by definition they override the ultimate power of the majority to control
substantive policy. Internal structural obstacles and traditional practices are not unconstitutional because
they can and are overcome by majorities when important issues are at stake. Professor Chemerinsky and I
have elaborated on this point. See Roberts & Chemerinsky, supra note 84, at 1813-18.
106 McGinnis & Rappaport, The Rights of Legislators,supra note 81, at 343-46.
the House or Senate could not adopt a rule imposing a supermajority

requirement on a specific substantive vote - like tax rate increases.' 0 7 The
crucial question is whether the chamber retains the right to waive, modify or
repeal such a rule. So long as it does, then the Constitution is not violated.
C. The CentralImportance of the Constitution'sRulemaking Clause

The strongest basis for arguing that a binding cloture rule would be
unconstitutional is undoubtedly the Rulemaking Clause of the Constitution,
the portion of Article I, Section 5, Clause 2, providing that "Each house may
determine the Rules of its Proceedings." That clause not only provides a
textual ground for invalidating a binding cloture rule, but it also, as we shall
see in Part V, undergirds the anti-entrenchment principle which supplies
another analytical argument against the rule. The Rulemaking Clause
argument was the constitutional basis of the several vice presidential rulings
on majority cloture made during the 1960's and 1970's,108 and for the case
made today by advocates of majority cloture. The Clause has not been the
subject of deep analysis by constitutional scholars until relatively recently,'09
and even then commentators have generally not appreciated the central role it
plays in defining the legislative power. None seem to have recognized the
two different facets of the Clause as developed in this section.
1. Background
It is perhaps not surprising that the Rulemaking Clause has played such a
low-key role in constitutional theory. On its face it appears to be a mere
housekeeping provision, stating a truism that any deliberative body would
assume for itself without specific authority. All legislative bodies, including
the Constitutional Convention and the first Congress, formulate and adopt
rules governing their proceedings as soon as possible after convening.
Although a version of the Rulemaking Clause appeared in George Mason's
107 Interestingly, after all the fervor of the initial debate died down, it became clear that the House in
fact operates this way, as argued by McGinnis and Rappaport. See McGinnins & Rappaport, The
Constitutionalityof Legislative SupermajorityRequirements, supra note 81, at 500-503, n.91. The D.C.
Circuit in Skaggs observed that the House waived the new tax rate supermajority rule several times in the
104th Congress alone. Skaggs v. Carle, 110 F.3d 831, 835 (D.C. Cir. 1997).
'0o See BRIEF OF SIX SENATORS, supra note 43, at 235 ("It is the opinion of the Chair that at the
beginning of a new Congress a majority of the Senate has the constitutional right to work its will with
regard to the rules by which it desires to be governed, and that that right cannot be restricted by the
membership of the Senate in another Congress") (Vice President Richard M. Nixon).
109 My fuller exploration of the clause and its importance can be found in John C. Roberts, Are
CongressionalCommittees Constitutional?:Radical Textualism, SeparationofPowers, andthe Enactment
Process, 52 CASE W. RES. L. REv. 489 (2001). See also Bruhl, supra note 58, at 383-413.
Virginia Constitution,' 10 and was included in Charles Pinckney's draft

constitution presented to the Philadelphia Convention,"' the final form of the
language appears first in the report of the Committee of Detail" 2 and was
included in the final text of our Constitution by the Committee on Style and
Arrangement. 13 It apparently was not debated by the Convention; indeed, the
power to control legislative rules was probably deemed too obvious to be
discussed, despite its importance. Likewise, the Clause was not addressed in
The Federalist and was not a subject of controversy during the state
ratification debates. The earliest interpreters of the Constitution say little
about the Rulemaking power, but like Joseph Story treat it as beyond
controversy:
No person can doubt the propriety of the provision

authorizing each house to determine the rules of its own
proceedings. If the power did not exist, it would be utterly
impracticable to transact the business of the nation, either at
all, or at least with decency, deliberation, and order. The
humblest assembly of men is understood to possess this
power; and it would be absurd to deprive the councils of the
nation of a like authority.'14
Looking carefully at the history of the Rulemaking Clause, its use by the
Congress, and court decisions interpreting it, however, it becomes clear that,
as with many other brief clauses in the Constitution, there is considerably
more to it than might initially appear. In performing its vital function in our
constitutional structure, the Rulemaking Clause has in fact developed two
facets or analytical elements.
First, it has served a separation of powers function, providing a textual
source for the argument that neither the President nor the federal courts have
any power to control the decisions of the House and the Senate on their
internal procedures. As I have pointed out elsewhere, 1 5 the Clause deterred
to See VA. CONST. (1776); 1 THE PAPERS OF GEORGE MASON, 1725-1792, at 299-310 (Robert A.
Rutland ed. 1970).

.. III Farrand, supra note 13, at 605.
112 II Farrand, supra note 13, at 180.
113 Id. at 592.

114 2 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 298 (Leonard W.
Levy ed., Da Capo Press 1970) (1833).

"5 Roberts, supra note 109, at 530-42. Insulated from review by the Rulemaking Clause, the House
has allowed non-members to vote in its committees and even in the Committee of the Whole House; the
House has also reduced the voting effectiveness of the minority party in committees; both houses have
adopted extremely generous interpretations of the constitutional quorum requirement and have delegated to
courts from interfering with decisions of the House or the Senate, even in
cases where extremely strained or unusual interpretations of their
constitutional powers were involved. The President has never attempted to
impose his notions of procedure on the Congress, and so has not tested the
effect of the Clause on the Executive Branch.
But there is also a second facet to the Rulemaking Clause, one that has
proven more important than the first. I shall call it the "continuous power
principle" to distinguish it from the separation of powers element described
above. Thus, the Rulemaking Clause provides the basis for the argument that
each group of legislators in the House and Senate, at any moment in time,
possesses the power to determine its own rules, unfettered by rules adopted by
those who came before. Since procedure determines substance, this aspect of
the Clause guarantees the full legislative power for each group of senators and
representatives. It not only assures ultimate majority control in the House and
Senate, but also anchors the republican notion that each legislative body must
be subject to the will of its constituents.
An examination of court decisions interpreting the Rulemaking Clause,
and of the actions of the House and Senate since the first Congress convened
in 1789, illustrates not only its great importance in ensuring the vitality of the
Constitution's grant of legislative power, but also the existence of the two
interpretive facets I have described. In their analysis of the Rulemaking
Clause argument for the unconstitutionality of the Cloture Rule, Seitz and
Guerra discuss only the first element - ensuring that the other two branches
do not encroach on the power of Congress to adopt procedures - and do not
explore the second, which is actually more relevant to the Cloture Rule
discussion.
2. Court Interpretationsof the Rulemaking Clause.

Though decisions of the Supreme Court and the courts of appeals over our
history consistently interpret the Rulemaking Clause both to prevent
encroachment on Congress by the other branches and to preserve the power of
each Congress against the ones that come before, they also illuminate one
other important point that is often lost in this debate. I refer to the fact that a
federal court has never interfered with a purely internal rule of the House or
Senate that did not involve other specific constitutional limitations or (in a
1 16 These
couple of rare cases) violate the constitutional rights of individuals.
a committee the responsibility of presenting passed bills to the President during a recess, among other
things. See id.
116 See id.
Journalof Law & Politics [Vol.X.X:505
decisions clearly support the conclusion that no court would interfere with the
decision of the Senate to adopt a Cloture Rule, to follow it, or to modify it
without following its requirements. This entire discussion, in other words, is
an academic and political one in the truest sense. There would be no practical
way of requiring the Senate to follow its Cloture Rule, nor would a court
assist those challenging its repeal. This conclusion underscores the great
power of the Rulemaking Clause's first, or separation of powers facet.
The first significant Supreme Court case interpreting the Rulemaking
Clause was Ballin17 in 1892. There the Court was faced with a challenge to
the particular quorum procedure used by the House. It declined to judge the
House's interpretation of the constitutional quorum requirement, and in so
doing articulated both of the elements of the Clause I have described:
[A]ll matters of method are open to the determination of the

house, and it is no impeachment of the rule to say that some
other way would be better, more accurate or even more just.
It is no objection to the validity of a rule that a different one
has been prescribed and in force for a length of time. The
power to make rules is not one which once exercised is
exhausted. It is a continuous power, always subject to be
exercised by the house, and within the limitations suggested,
absolute and beyond the challenge of any other body or
tribunal. 18
'
Perhaps because of the clarity and strength of this position, most of the
later cases involving challenges to House and Senate rules have been decided
by the circuit courts, and the Supreme Court has not reviewed them. Most
have involved the District of Columbia Circuit, and based on the Rulemaking
Clause that court has consistently declined to judge congressional rules and
practices." 19 As Judge (and former Congressman) Mikva put it in Gregg v.
Barrett,a case involving a challenge to Congress's lax practices in printing
the Congressional Record: "[O]ur deference and esteem for the institution as a
whole and for the constitutional command that the institution be allowed to
manage its own affairs precludes us from even attempting a diagnosis of the
problem.' 120 In other cases, like Skaggs v. Carle'12 and the House's three-
'" United States v. Ballin, 144 U.S. I (1892).

8 Id. at 5.
..
"9 See generally Roberts, supra note 109, at 535-41.
120 771 F.2d 539, 549 (D.C. Cir. 1985).
12 110 F.3d 831 (D.C. Cir. 1997).
fifths voting rule for future tax rate increases, the court discussed the rule at
length but eventually decided the plaintiffs lacked standing.
Only a few cases have involved the precise question before us, an attempt
by the House or Senate to adopt a rule that would be binding on a future
22
session of that body. Metzenbaum v. FERC is the clearest expression of the
second facet of the Rulemaking Clause. There the Congress had adopted
within a statute certain restrictions on the procedures used for future
amendments to that law. When, predictably, a future Congress ignored them
in amending the statute, a Senator sued. The court found that the Rulemaking
Clause gave the second Congress full power to follow any procedures it
12 3
wished, even in a case where the restriction was statutory. Based on the
Rulemaking Clause, the court ruled that the question whether the House or
Senate had followed their own rules was non-justiciable, the only requirement
being whether the minimal rules for enactment in Article I, Section 7, were
which they clearly were. 124
complied with,
As these and similar cases show, both elements of the Rulemaking Clause
are important. But for our purposes, it is the second one, protecting the
legislative power of one group of Senators from those that came before it, that
is critical. Seitz and Guerra, like some other commentators, deny any
continuous, or "cross-temporal" 125 meaning to the Clause. But since there is
no genuine threat of rules encroachment from the President or the Courts, it is
really the second facet that is the most important today. If it were otherwise,
as we shall see, then one Congress could employ the Rulemaking Clause to
destroy itself, and in effect to amend the Constitution by withdrawing an
equivalent power from a future Congress.
3. Congress Has Recognized and Followed the Continuous Power

Interpretationof the Rulemaking Clause.
Aside from the constitutional arguments outlined above, the history of
Congress's actions regarding its power over rules shows its commitment to
the continuous meaning of the Rulemaking Clause. Since commentators like
Seitz and Guerra argue that congressional practice should be a weighty factor
in evaluating the validity of the Cloture Rule itself, they must also take this
larger history into account.
The first item of evidence showing Congress's attitude toward the
"' 675 F.2d 1282 (D.C. Cir. 1982)

...Id. at 1287.
124 Id.
125The phrase comes from Michael J. Klarman, MajoritarianJudicial Review: The Entrenchment
Problem, 85 GEO. L.J. 491,498 (1997).
JournalofLaw & Politics [Vol.X-X:505
Rulemaking Clause is the unbroken tradition in each house of waiving or
ignoring its rules when no objection is heard, despite rules that impose
procedural requirements on such actions. Where could the power to waive or
simply ignore rules come from if not from the second facet of the Rulemaking
Clause, which gives each group of Senators or Representatives the same
power over rules as those who came before?
Second, in the case of the House of Representatives the official position on
continuous rulemaking power is even clearer. The House has long asserted
the constitutional power to adopt new rules at the beginning of each Congress,
and in fact operates under general parliamentary rules for the short period
every two years before its rules are adopted. 126 The House Manual, which
serves as a definitive procedural guide, states unequivocally that the
majority's power to adopt rules for each new House is "settled.' ' 127 Since the
House and Senate possess the same inherent powers under the Constitution,
this principle must also hold true for the Senate. As shown in Part III, the
Senate has in fact asserted the majority's power over the Cloture Rule, though
it has chosen to operate under its restraints as well.
A third item of evidence showing that Congress endorses the continuous
power facet of the Rulemaking Clause is its handling of rules statutes. For
political or other reasons, the Congress occasionally enacts into law, along
with substantive provisions, certain procedural restrictions that purport to
apply to future congresses. 128 Under my constitutional theory, of course,
these provisions are hortatory only, and cannot legally bind future congresses.
126 HOUSE MANUAL, supra note 87, at 26.
127 Id. at 197. "The power of each House of Representatives to make its own rules may not be
impaired or controlled by the rules ofa preceding House..., or by a law passed by aprior Congress..." Id.
at 25. See Bruhl, supra note 58, at 377 n.125 (citing authorities).
128 For examples and analysis of such statutes, see TIEFER, supra note 1; Bruhl, supra
note 58. A
famous nineteenth century example of this phenomenon concerned Congress's efforts to regulate the
process of counting disputed electoral votes. From 1865 to 1877, Congress employed a so-called Joint
Rule to govern the count. Each house arguably felt, consistent with my argument, that the Constitution
preserved its right to rescind the rule at any time, and the Senate did so in 1876 before the presidential
election. After the fiasco of the Hayes-Tilden election that year, which was resolved by a one-time
electoral commission, Congress debated for ten years how to handle the problem, ultimately adopting the
Electoral Count Act in 1887. The question whether the counting mechanism should be in the form of a
statute, another joint rule, or even concurrent House and Senate rules, was much debated as it had been
earlier in the century. Many, including some of the bill's principal supporters in the Senate, believed that a
statute was no more binding than a rule, for all the same reasons argued for in this Article. Others believed
that it was binding. Members finally decided that the statute would have moral and political force even if it
were not binding orjudicially enforceable. See Stephen A. Siegel, A Conscientious Congressman's Guide
to the ElectoralCount Act of 1887, 56 FLA. L. REv. 541, 560-66 (2004); Vasan Kesavan, Is the Electoral
CountAct Unconstitutional?,80 N.C. L. REv. 1653, 1779-87 (2002). Whatever their ambivalence in the
nineteenth Century, the current House and Senate would almost certainly not treat the ECA as legally
binding, though they might well follow its procedures anyway. The Supreme Court's intervention in the
2000 election count dispute prevented us from finding out.
Congress agrees, and usually includes disclaimer language with such

provisions declaring that it retains full power under the Rulemaking Clause to
ignore the procedural restrictions. The typical disclaimer clause found in such
a "rules statute" provides that the procedural restrictions are enacted:
(1) as an exercise of the rulemaking power of the House of

Representatives and the Senate, respectively, and as such
they are deemed a part of the rules of each House,
respectively .... ; and
(2) with full recognition of the constitutional right of either
House to change the rules (so far as relating to the procedure
of that House) at any time, in the same manner and to the 29
that House.1
same extent as in the case of any other rule of
Note the clear endorsement of the continuous rulemaking power in the

words "at any time," which should leave no doubt as to the Congress's
position. That position is confirmed by looking at the legislative history of
rules statutes like the Executive Reorganization Acts and Fast Track Trade
130
Authority.
Finally, we can look to the actual practice of the Congress when faced with
rules statutes that purport to limit each chamber's authority to enact, modify
or repeal its rules at any time. Even without disclaimers, says Aaron-Andrew
Bruhl in his exhaustive study of such statutes, later congresses frequently
ignore the procedural strictures, 13 1just as they do for non-statutory rules such
as the 1995 House Rule on tax rate increases. These provisions may have
some effect on future congresses, as long as there is a majority consensus that
the rules restrictions are wise, but they can and are waived or ignored when
the majority desires to do so.
In sum, there is little doubt that the Congress itself has believed from its
earliest days that
"9 5 U.S.C. § 908 (2000) ("Executive Reorganization"). This language appears in the original 1949
enactment. Reorganization Act of 1949, Pub. L. 81-109, § 201, 63 Stat. 206 (1949).
30 See, e.g., S. REP. No. 104-2, at 15 (1995) (Unfunded Mandate Reform Act of 1995) ("The
Constitution already reserves the rulemaking powers of each House. This [disclaimer] section provides that
the terms of title I are enacted as an exercise of the rulemaking power of the Senate and the House of
Representatives, and that either house may change such rules at any time."); S. REP. No. 107-139, at 54
(Bipartisan Trade Promotion Authority Act of 2002) (Section 5(c) recognizes that procedures for adopting a
disapproval resolution "are enacted pursuant to the rule-making powers of the House of Representatives
and the Senate. It further recognizes the constitutional right of either House to change its rules at any
time."); See generallyBruhl, supranote 58, at 365 n.80 (quoting excerpts from various committee reports).
13' Bruhl, supra note 58, at 369.
it possesses the continuous constitutional power to control its
rules, and it has acted consistently with that conviction. The
Senate's deeply conflicted attitude toward the Cloture Rule
since its beginnings in 1917 provides perhaps the only
counter-example, and Congress has never articulated clearly
the constitutional justification for treating that Rule as
binding in light of the practices outlined above. In any case,
as we have seen, the Cloture Rule in the end is not actually
binding, but merely exerts a strong pull based on tradition
32
and shared self-interest.'
4. How is the ConstitutionalRulemaking Power to be Exercised?

One final question about the Rulemaking Clause must be considered. Seitz
and Guerra, like some other commentators, argue that the rulemaking power
of each House does not invalidate the Cloture Rule because the Clause does
not say how it must be exercised. Confronted with such a sixty-percent rule,
they say, a later Congress still possesses its rulemaking power, but it must
exercise it by a supermajority vote, in accordance with the prior-adopted
rule. 133 A few simple examples suffice to show the flaws in this argument.
Let us suppose that Congress One adopts a supermajority voting rule for
all rule changes. Because of the Rulemaking Clause and the Congress's
traditional default majority voting rule, it has the freedom to adopt that rule by
a simple majority of those present. Congress Two, some years later, must
form a supermajority to change the rule, yet according to Seitz and Guerra it
still possesses its constitutional rulemaking power. But a moment's reflection
reveals that the constitutional power of Congress Two over its rules has been
reduced. Unlike Congress One, it cannot act in this instance by a simple
majority even if it wishes to. Its power of action under the Rulemaking
Clause has been restricted, but how could this have been accomplished
constitutionally? Certainly Congress One cannot amend the Constitution by
adopting such a rule. Just as surely, Congress One cannot use the Rulemaking
Clause to restrict or eliminate the Clause itself.
The Rulemaking Clause thus operates to protect ultimate majority rule.
While the supermajority rules that are usually discussed in this debate may
seem a relatively minor restriction on majority rule, the principle Seitz and
Guerra defend has no logical limit. If Congress One can adopt a two-thirds
requirement for rules changes, it can also adopt a 90 percent requirement, or
132 See supra Part III.

133 Seitz & Guerra, supra note 5, at 7.
2004] Constitutionalityof the Senate Cloture Rule 539
even prohibit changes in the rules altogether. Each action, according to Seitz
and Guerra, would be justified as a proper use of the Rulemaking Power. But
the end result is that the power of future majorities to enact legislation would
be destroyed. Under this logic, the first House and the first Senate could have
adopted un-amendable rules and thus bound future majorities to all sorts of
restrictive parliamentary practices.
And lest we be misled into believing that we are concerned here only with
"procedural" rules which do not restrict the Senate's ability to adopt
substantive legislation, let us remember that procedure always controls
substance. The ability to establish the rules by which legislation must be
considered controls the fate of that legislation. Certainly the history of the
Cloture Rule itself during the civil rights battles of the mid-twentieth century
demonstrates the truth of that proposition. Furthermore, what is to prevent the
Senate from adopting quasi-substantive rules, like a rule providing that a 90
percent majority is necessary to cut off debate on a motion to take up any tax
bill? Such a rule is undoubtedly procedural, but just as clearly prevents the
Senate from adopting that type of substantive legislation.
It is evident then that the continuous rulemaking power I argue for is a
vital protection for the principle of ultimate majority control in Congress, and
that it has operated that way in fact throughout our history. Any alternative
theory, like that advocated by Seitz and Guerra for binding supermajority
Cloture Rule, allows one majority to hamstring all future majorities and even
to foreclose action altogether. In this sense there is no logical stopping point
except simple majority rule. Put this way, the argument is very much like that
over the entrenchment principle. Professors Posner and Vermeule in their
recent article defending legislative entrenchment, 134 also fail to appreciate the
slippery slope that their abandonment of majority voting entails. We shall
take up that argument in more detail in Part V. below.
Again, let me emphasize that the Rulemaking Clause empowers the Senate
and House at any time to adopt supermajority votes by a simple majority, and
even to operate under supermajority rules by consent. But it also ensures the
power of each subsequent group of legislators, even a day after adoption of
the restrictive rule, to waive, modify or repeal it by a simple majority vote.
Thus a "binding" Cloture Rule, if it existed, would violate the Rulemaking
Clause of Article I, Section 5.
134 Eric A. Posner & Adrian Vermeule, LegislativeEntrenchment:A Reappraisal,111 YALE L.J. 1665
(2002).
V. A BINDING CLOTURE RULE WOULD VIOLATE THE ESTABLISHED

ANTI-ENTRENCHMENT PRINCIPLE
There is another legal argument for the proposition that binding

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

Professors Posner and Vermeule, in their defense of entrenchment, define
it as referring to "statutes or internal legislative rules that are binding against
subsequent legislative action in the same form." 13 6 The key notion is that
entrenched legislative actions are "binding" in some legal sense, though as we
have seen federal courts have made it clear that they would not interfere in
any controversy between different congresses over this binding effect,
1 37
rendering the concept of entrenchment an abstract one at best.
Because entrenchment must involve binding effect, it is important to
reiterate that other kinds of restrictions on legislative action, whether they
involve structural elements like the committee system, or informal traditions
135 Seitz & Guerra, supra note 5, at 6-7, 23-28. Professor Vermeule also considers them separate,
though he agrees with the views expressed here that the Rulemaking Clause invalidates rules which attempt
to bind the future. Adrian Vermeule, The ConstitutionalLaw of CongressionalProcedure,71 U. CHI. L.
REV.361, 430 (2004).
136 Posner & Vermeule, supra note 134, at 1667.
137 See supra Part IV.C.2.
like the Senate "hold," do not fall within this definition of entrenchment.
These factors, and a host of other social, political and personal ones that effect
the way legislation moves through Congress, may in fact prevent a current
majority in the House or Senate from enacting its preferences into law. But
they are not entrenchment, because they are subject to the will of a
majority.138 They are not "binding" in the sense Posner and Vermeule, or
Seitz and Guerra, use that term, because a determined majority can and does
override them when circumstances warrant. One need only think back to the
enactment of President Bush's tax cut in 2001 or the enactment of the U.S.A.
Patriot Act to understand that all structural and informal obstacles to quick
majority action can be swept away if the desire to legislate and the pressure
from the people are strong enough.139 .
There is ample evidence for the existence of an anti-entrenchment
principle applicable to all legislative bodies, as even its critics acknowledge.
14
It seems to have deep roots in English parliamentary practice and was
apparently imported into the American system as a matter of common
understanding. Cooley stated it as a basic rule of legislative power:
To say that the legislature may pass unrepealable laws, is to

say that it may alter the very constitution from which it
derives its authority; since, insofar as one legislature could
bind a subsequent one by its enactments, it could in the same
degree reduce the legislative power of its successors .... 141
Chief Justice Taney, writing in 1853, articulated it this way:
The powers of sovereignty confided to the legislative body

of a State are undoubtedly a trust committed to them, to be
executed to the best of their judgment for the public good,
and no one Legislature can, by its own act, disarm their
successors of any of the powers or rights of 42 sovereignty
by the people to the legislative body. 1
confided
The Supreme Court later reiterated this view, expressing it in a way that
13 This argument is developed at greater length in Roberts & Chemerinsky, supra note 84, at 1813-18.
139 These and other examples are discussed at id.
140 Seitz and Guerra quote Blackstone on the importance of preserving the freedom ofeach Parliament.
Seitz & Guerra, supra note 5, at 27.

'4' THOMAS MCINTYRE COOLEY, CONSTITUTIONAL LIMITATIONS 125-26 (1 st ed. 1868).
4 Ohio Life Ins. & Trust Co. v. DeBolt, 57 U.S. (16 How.) 416, 431 (1853).
542 Journal ofLaw & Politics [Vol.XX:505
shows clearly the relationship between the Rules of Proceedings Clause,

which appears in both the federal and state constitutions, and the anti-
entrenchment principle:
Every succeeding Legislature possesses the same jurisdiction

and power. .. as its predecessors. The latter must have the
same power of repeal and modification which the former had
of enactment, neither more nor less. All occupy, in this
respect, a footing of perfect equality. This must necessarily
be so in the nature of things. It is vital to the public welfare
that each one should be able at all times to do whatever the
varying circumstances and present exigencies touching the
subject involved may43
require. A different result would be
fraught with evil. 1
Likewise, until the recent article by Posner and Vermeule, it was virtually
impossible to find a scholarly commentator who did not accept the anti-
entrenchment principle as a settled part of ourjurisprudence.144 Charles Black
once described it as a rule which "on the most familiar and fundamental
principles, so obvious as rarely to be stated,"'' 45 should continue to be
followed.
Congress has always treated the anti-entrenchment principle as one of the
fundamental rules governing its functioning. No scholar, to my knowledge,
has ever pointed out a statute passed by the House and Senate that attempted
substantive entrenchment - providing, in other words, that it could not be
amended or repealed at all. That fact alone is ample evidence that Congress
never entertained the thought that it might have such power. As for
procedural entrenchment, we have seen in Part III.C that Congress has
frequently in recent years passed statutes which purported to restrict future
congresses, usually by the imposition of limits on debate or amendments.
Most have been accompanied by disclaimers making it clear that they are not
in fact binding or future congresses, and all have been freely ignored when
143 Newton v. Comm'rs, 100 U.S. 548,559(1879). The Court has often made clear that
this principle
applies to Congress as well at to state legislatures. See, e.g., Reichelderfer v. Quinn, 287 U.S. 315, 318
(1932) ("[T]he will of a particular Congress... does not impose itself upon those to follow in succeeding
years.").
144 See generally Julian A. Eule, Temporal Limits on the Legislative Mandate:
Entrenchment and
Retroactivity, 1987 AM. B. FOUND. RES. J. 379; Klarman, supra note 125; Paul W. Kahn, Gramm-Rudman
and the Capacityof Congress to Control the Future, 13 HASTINGS CONST. L. Q. 185 (1985).
145 Charles L. Black, Jr., Amending the Constitution:A Letter to a Congressman,
82 Yale L.J. 189,191
(1972).
2004] Constitutionalityof the Senate ClotureRule
subsequent majorities found it convenient to do SO. 14 6 Here, as with the

filibuster, members are conflicted-on the one hand wanting to prevent future
change in their enacted policies, and on the other hand recognizing the
importance of legislative autonomy. The single arguable exception to this
tradition is the Cloture Rule itself, which is the subject of our discussion. My
position, of course, is that it is not a violation of the entrenchment principle,
both because it responds to majority control and because it is frequently
waived or modified in specific "fast track" legislation.
B. The Anti-EntrenchmentPrincipleand the Constitution

Professor Chemerinsky and I have recently set out in full our position that
entrenched measures, whether procedural or substantive, would violate the
Constitution. 147 We argue that they violate the spirit of the Constitution
because they are inconsistent with principles of democratic accountability and
majority control. They also violate the letter of the Constitution in a number
of ways. We point out, for example, that entrenched statutes would violate the
Vesting Clause and other portions of Article I by in effect altering the
procedure for enacting laws. We also distinguish the Constitution's own
entrenched provisions, such as the procedure for amendment in Article V, by
noting the different legal status of constitutions and ordinary legislation.
But the most important textual support for the idea that entrenched laws or
rules violate the Constitution comes from the Rulemaking Clause of Article I,
Section 5. Keep in mind that advocates of entrenchment must accept not only
the relatively mild form represented by a sixty percent supermajority
requirement, but also the more extreme forms such as a ninety percent
required majority or a complete prohibition on repeal or amendment.
Recalling the arguments made in Part IV about the Rulemaking Clause, it is
easy to see how such requirements encroach on the power of succeeding
legislatures to determine their own rules of proceeding, and in effect modify
the Rulemaking Clause for subsequent legislatures without going through the
procedures mandated by Article V. For all the same reasons that the Cloture
Rule violates the Rulemaking Clause, so too does any entrenched measure,
substantive or procedural, violate the same constitutional provision.
C. Supermajority Voting Rules and the Anti-Entrenchment Principle

Seitz and Guerra reluctantly accept the anti-entrenchment principle
generally, but assert that it does not apply to procedural rules like the Cloture
146 See supra Part IV.C.3.

117 Roberts & Chemerinsky, supra note 84.
Rule, which they characterize as merely rules of debate. 148 However, since all
attempts at entrenchment in Congress have involved procedural rules, they
might just as well argue that the entrenchment principle does not apply at all.
Recognizing the wide acceptance by the Supreme Court and Congress of the
basic notion that legislative entrenchment is not permitted in our legal system,
they attempt to rest on the distinction between substance and procedure.
Should our conclusion on constitutionality be different for substantive and
procedural entrenchment? At the outset, we should observe that no such
distinction has been made by courts and earlier commentators who discuss the
entrenchment principle. It seems illogical in the extreme to allow only
procedural entrenchment, since by simple devices a legislative body thus
armed could accomplish substantive results. Recall our earlier example of a
parliamentary rule that a ninety percent vote was necessary to cut off debate
on a motion to take up a tax bill in the Senate. Though the rule is a rule of
debate, exempt from entrenchment prohibitions according to Seitz and
Guerra, the result is the same as if a rule had been adopted requiring a ninety
percent vote to pass a tax measure.
In reality, every observer of legislative bodies, and certainly every Senator,
knows that there is really no difference between substance and procedure, and
that as between the two procedure is more important.150 We read in the
newspapers every week of legislative measures that are defeated on
"procedural' votes. Motions to table, motions to recommit, motions to make a
matter the pending business, and similar motions can all present procedural
opportunities to defeat a measure in the Senate. Such votes often provide
political cover for those who do not wish to vote up or down on a
controversial measure. Procedural entrenchment, approved by Seitz and
Guerra, is in fact much more effective in blocking later action, since it can be
used to defeat whole classes of legislation.
Filibuster and cloture themselves show how intertwined substance and
procedure can be on the floor of the Senate. Filibusters were commonly
mounted on procedural motions like motions to proceed to a matter, and even
on motions to appoint conferees.' 5' Parliamentary experts point out that the
multiple procedural steps needed to bring a bill to a final vote provide
148 Seitz & Guerra, supra note 5,at 22-32. Bruhl also argues that procedural rules are exempt from the
anti-entrenchment principle. Bruhl, supra note 58, at 379-80.
150OLESZEK, supra note 20, at I I ("[V]ery often policy decisions are expressed as procedural
moves."). Walter Oleszek quotes veteran Democratic congressman John Dingell as declaring that "If you
let me write the procedure, and I let you write the substance, I'll [beat] you every time." Id. at 12.
151See TIEFER, supra note I, at 565-66, 761; Beth & Bach, supra note 20, at 11-12.
15 2 Until the 1949 rules
multiple opportunities for filibuster even today.
change, cloture could only be invoked on "measures," and totherefore 53
on procedural motions were quite common and difficult stop.
filibusters
Indeed, what could be a more telling example of the connection between
procedure and substance than the single-minded use of the filibuster and the
two-thirds Cloture Rule in the mid-20th century by southern conservatives
opposed to Civil Rights Legislation. As Senator Douglas argued in pleading
for majority cloture in 1961: "The same group that makes it impossible to
obtain two-thirds cloture on meaningful and effective civil rights legislation
makes it impossible to obtain two-thirds cloture on a rule change for the 154
civil rights legislation.'
purpose of enacting meaningful and effective
Senator Douglas rightly characterized the cloture rules that block the
majority's ' efforts to end filibusters as "substance masquerading as
55
procedure."
Seitz and Guerra offer several arguments to support their notion that the
anti-entrenchment principle invalidates rules that require supermajorities for
specified substantive enactments, but is inapplicable to rules that adopt
supermajority requirements for procedural steps. First, they observe that the
Senate itself makes that distinction, since it has never adopted a substantive
entrenchment measure. 56 That is certainly true, but the fact is that the Senate
has almost never observed any of the many procedural entrenchment
measures it has adopted either. Since the Congress has shown no desire to
observe any of the entrenchment directions of previous congresses, it is very
hard to support any procedure vs. substance distinction.
Second, Seitz and Guerra argue that the rationale underlying the anti-
entrenchment principle, which they identify as freeing each Congress to
achieve any substantive legislation it desires, does not apply to procedural
rules like rules of debate, since they do not directly determine substantive
policy. 5 7 As we observe above, however, this distinction is untenable;
procedural parliamentary maneuvering can control legislative outcomes.
What seems like a technical rule of debate, such as a requirement that a ninety
percent majority be achieved to cut off debate on a motion to make a measure
the pending item of business, is the same as a vote on the bill itself. And
since the real rationale of the anti-entrenchment principle does not relate to
152 Beth & Bach, supra note 20, at 11-12.

133 See TIEFER, supra note 1, at 702, 757.
'54 BRIEF OF SIX SENATORS, supra note 43, at 233.
'5' Id. at 236.
156 Seitz & Guerra, supra note 5, at 24.
' Id. at 25-26.
any particular type of legislation action, but rather to the idea of full
legislative autonomy at any moment in time, substance and procedure are
equally important.
Third, they argue that, like the Cloture Rule, the Senate has many other
rules, practices and traditions that just as surely obstruct majority rule. If they
are not viewed as impermissible entrenchment, why should the Cloture Rule
be so characterized? But as we have already observed, all of these structures
and practices, like committees, holds and the tradition of recognizing the
majority leader before other senators, are not binding in any legal sense.
They can and are changed or ignored by a determined majority. By
definition, however, the kind of Cloture Rule Seitz and Guerra posit is
different - it is binding in some legal sense on future groups of senators.
The final defense of the Cloture Rule from attack under the anti-
entrenchment principle is more subtle, but also ultimately unconvincing.
Seitz and Guerra argue that the anti-entrenchment principle is intended to
protect the sovereignty of each chamber, and in the case of the Senate that
sovereignty has a unique twist. Since the Senate was designed to preserve the
power of the States, and especially the power of the small states against
encroachment by the large states, rules and practices that increase the power
of minorities in the Senate are consistent with this conception. There are
several answers to this argument. First, since the idea behind the anti-
entrenchment principle is continuous legislative autonomy, its power should
not depend on the purpose of the entrenched rule. A valid purpose, after all,
is in the eye of the beholder. Nowhere in the commentary on entrenchment
has it been suggested that some limitations on autonomy are allowed because
they serve some loftier goal while others are not. Second, we must remember
that the underlying rationale for the anti-entrenchment principle is ultimate
majority control - derived directly from the theory of popular sovereignty.
While the Framers constructed a Senate partly in response to concerns about
preserving state power, there is no reason to believe that they also sanctioned
additional changes to further increase such power. In fact, the balance they
struck was hard-fought and specific, certainly not an open-ended invitation to
continue to expand the power of small states. Finally, defending a binding
Cloture Rule because it reinforces the Framers' effort to protect the influence
of the states misconceives the scope of Seitz and Guerra's own argument.
They contend that all binding rules of debate in the Senate are exempt from
the anti-entrenchment principle, and this would have to include those that
would reducethe influence of the states. Under their theory, for example, the
Senate could adopt rules strictly limiting debate, and thus take away the
power of minority groups or small states to forestall legislative action.
Despite their effort to create a special conception of sovereignty for the

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

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The venerable tradition of unlimited debate in the United States Senate,

1. Is the Cloture Rule, as it relates both to rules changes and to other

My position can be summarized in a few simple propositions. First, while

II. THE HISTORY AND CULTURE OF THE SENATE

It is virtually impossible to think analytically about the filibuster or the

[T]here are particular moments in public affairs, when the

16 1 Farrand, supra note 13, at 422.

19 CARO, supra note 18, at 4.

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

greatest parliamentary experts, went so far as to write that "the right of

28 BYRD, supra note I, at 162.

B. DirectSenate Action to Limit Debate

majority, having established its constitutional authority, could have at that

a testament to the Senate's resistance to change and not proof of a lack of

C. Indirect Changes in the Rules - "FastTrack" Legislation

"' See 2 U.S.C. §§ 636(b), 641(e) (2000).

have the practical effect of limiting debate on certain kinds of measures

IV. A BINDING CLOTURE RULE WOULD VIOLATE BOTH

A. The Relevance of the Senate's ParliamentaryHistory

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

74 See BINDER & SMITH, supra note 1, at 85-86.

to debate the constitutionality of the practice.

Some believe that rule XXII of the Standing Rules of the

In any case, after 1975 it is extremely difficult to argue that a majority of

B. The Impact of Majority Rule Principles

concepts - the constitutional rulemaking power and the anti-entrenchment

also acknowledge that Congress has developed a number of profoundly

The general rule of all parliamentary bodies is that, when a

legislative business were to be determined by simple majority? Given the

That some advantages might have resulted from such a

94 See, e.g., McGinnis & Rappaport, supra note 81, at 347-48.

be pursued, the fundamental principles of free government

Likewise Alexander Hamilton argued eloquently for the overall principle

97 Supra note 17, at 336-37 (The Federalist No. 58).

quite specific in cataloguing the procedural defects of the Confederation

To give a minority a negative upon the majority (which is

During consideration of the proposal to require a two-thirds vote on

the House or Senate could not adopt a rule imposing a supermajority

C. The CentralImportance of the Constitution'sRulemaking Clause

Virginia Constitution,' 10 and was included in Charles Pinckney's draft

No person can doubt the propriety of the provision

Rutland ed. 1970).

113 Id. at 592.

Levy ed., Da Capo Press 1970) (1833).

2. Court Interpretationsof the Rulemaking Clause.

[A]ll matters of method are open to the determination of the

'" United States v. Ballin, 144 U.S. I (1892).

3. Congress Has Recognized and Followed the Continuous Power

"' 675 F.2d 1282 (D.C. Cir. 1982)

Congress agrees, and usually includes disclaimer language with such

(1) as an exercise of the rulemaking power of the House of

Note the clear endorsement of the continuous rulemaking power in the

4. How is the ConstitutionalRulemaking Power to be Exercised?

132 See supra Part III.

V. A BINDING CLOTURE RULE WOULD VIOLATE THE ESTABLISHED

There is another legal argument for the proposition that binding