Burying the "continuing body" theory of the senate

Iowa Law Review

Volumn 95, Issue 5, 2010, Pages 1401-1465

  Bruhf, Aaron Andrew P ^a  

^a UNIVERSITY OF HOUSTON   (United States)

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EID: 77958149431     PISSN: 00210552     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (475)

1. Comm. on the judiciary v. Miers, 542 F.3d 909,911 (D.C. Cir. 2008).
2. Id. (emphasis added).
3. Compare U.S. CONST. art. I, 2, cl. 1 (providing that House members are chosen every second year), wüh id. § 3, cls. 1-2 (providing that senators serve six-year terms with one-third expiring every second year).
4. E.g., Eastland v. U.S. Servicemen's Fund, 421 U.S. 491, 512 (1975) ("[I]t appears that the Session in which the House subpoenas were issued has expired. Since the House, unlike the Senate, is not a continuing body, a question of mootness may be raised." (citation omitted)).
5. Continuing Effect of a Congressional Subpoena Following the Adjournment of Congress, 6 Op. Off. Legal Counsel 744, 748-49 & n.11 (1982) (noting the argument that the Senate should have greater ability than the House to enforce subpoenas issued during the prior Congress);
6. see also infra text accompanying notes 204-05 (discussing how my approach would handle these issues).
7. See infra text accompanying notes 63-66 (describing these incidents).
8. See infra text accompanying notes 67-68 (noting recent proposals to change the Senate rules).
9. STANDING RULES OF THE SENATE, S. Doc. No. 110-9, R. XXII.2, at 15-16 (2007). More precisely, the rule specifies a three-fifths vote of those duly chosen and sworn, which is often but not always sixty.
10. Id.
11. FLOYD M. RIDDICK & ALAN S. FRUMIN, RIDDICK'S SENATE PROCEDURE 1217, 1219 (rev. ed. 1992).
12. STANDING RULES OF THE SENATE, supra note 7, R. XXII.2, at 15-16.
13. Compare RIDDICK & FRUMIN, supra note 8, at 1220 (explaining that the Senate has adopted new sets of rules on only a few occasions)
14. CONSTITUTION, JEFFERSON'S MANUAL, AND RULES OF THE HOUSE OF REPRESENTATIVES, H.R. Doc. No. 110-162, § 59-60, at 25-27 (2009) [hereinafter HOUSE MANUAL] (explaining that the House typically adopts rules with each new Congress).
15. STANDING RULES OF THE SENATE, supra note 7, R. V.2, at 4.
16. See, e.g., Newton v. Comm'rs, 100 U.S. 548, 559 (1879) ("Eveiy succeeding legislature possesses the same jurisdiction and power with respect to [public interests] as its predecessors. The latter have the same power of repeal and modification which the former had of enactment, neither more nor less.").
17. see also infra Part II.B.4 (discussing the anti-entrenchment rule).
18. HOUSE MANUAL, supra note 10, § 59. at 25.
19. E.g., Michael J. Gerhardt, The Constitutionality of the Filibuster, 21 CONST. COMMENT. 445, 464 (2004) (stating that arguments against entrenched Senate rules are flawed because, '[p] erhaps most importantly, the Senate is a 'continuing body'");
20. see also CONG. RESEARCH SERV., SENATE CLOTURE RULE: UMITATI0N OF DEBATE IN THE CONGRESS OF THE UNITED STATES 23 (Comm. Print 1985) [ SENATE CLOTURE RULE] ("Opponents of the ⋯ motion [ adopt new rules in 1953] centered principally on the argument that the Senate is a 'continuing body,' bound by the rules of earlier Senates.")
21. Note, Cloture, Continuing Rules and the Constitution, 48 MINN. L. REv. 913, 921 (1964) ("Those who have sought to prevent change in the cloture rule argue that because the Senate is a continuing body, the Senate rules continue automatically from session to session⋯."). Many examples of the invocation of this concept will be discussed throughout the course of this Article.
22. See, e.g., 132 CONG. REC. 16,765 (1986) (statement of Sen. Byrd) ("Since two-thirds carry over, our rules are continuous and do not have to be readopted at the beginning of each Congress.");
23. TOBLkS A. DORSEY, LEGISLATIVE DRAFRER'S DESKBOOK. A PRACTICAL GUIDE § 2.11, at 22 (2006) ("The Senate is considered a continuing body because about two-thirds of its seats carry over from Congress to Congress. Accordingly, the officers and rules of the Senate carry over. . . .").
24. Gerhardt, supra note 14, at 465 ("The unique structure of the Senate relieves it of any obligation, or ability, to reconstitute itself with each new congressional session.").
25. Interviews by Donald A. Ritchie with Floyd M. Riddick, Senate Parliamentarian, 1964-1974, at 200-01 (July 27, Aug. 1, 25, 1978), available at http://www.senate.gov/artandhistory/history/resources/pdf/ Riddick-interview-4. pdf (referring to the debate over "whether the Senate was a continuing body or whether there was a constitutional right to change the rules without filibuster at the beginning of a new Congress" and treating the two questions as equivalent).
26. Seek e.g.,Judicial Nominations, Filibusters, and the Constitution: When a Majority Is Denied Its Right To Consent: Hearing Before the Subcomm. on the Constitution, Civil Rights, and Property Rights of the S. Comm. on the Judiciaiy, 108th Cong. 309 (2003) (statement of Douglas Kmiec) ( Senate, by constitutional design, is not a continuing body. It cannot be. The framers carefully provided for staggered terms, whereby one-third of the Senate would stand for election every two years.");
27. id. at 310 (referring to carryover Senate rules as "rules of a different, prior body");
28. 99 CONG. REC. 204 (1953) (statement of Sen. Douglas) ("The contention that the Senate as a body is continuous and immortal and cannot in effect change its rules is indeed, upon close examination, seen to be ridiculous⋯. [The] separate character [of each Congress] is true of each Senate as it is of the House of Representatives.");
29. 55 CONG. REC. 10-12 (1917) (statement of Sen. Walsh) (denying that the Senate is a continuing body).
30. U.S. CONST. art. I, § 5.
31. Id.
32. HOUSE MANUAL, supra note 10, § 59-60, at 25-27.
33. House practice has not been completely unequivocal on this matter. From 1860 to 1890, the House rules stated that the rules would remain in effect into the next Congress. (This provision sought to make the carryover rules only a default that the new Congress was free to reject; in other words, the old rules were not entrenched.)
34. DE ALVA STANWOOD ALEXANDER, HISTORY AND PROCEDURE OF THE HOUSE OF REPRESENTATIVES 192-93 (1916);
35. 5 ASHER C. HINDS, HINDS' PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES OF AMERICA § 6743-47 (1907).
36. Some members thought even this weak form of continuity went too far, insisting that the old rules were powerless in the new House even as a default. Ukely because of the uncertainty and controversy over this point, the House typically followed its prior practice of readopting rules at the start of each term. E.g., CONG. GLOBE, 38th Cong., 1st Seas. 8 (1863).
37. In 1890, Speaker Reed ruled that the House began its term operating under general parliamentary law, which he used to his advantage in pushing through a number of reforms. For accounts of Reed's actions in 1890, see GEORGE B. GALLOWAY & SIDNEY WISE, HISTORY OF THE HOUSE OF REPRESENTATIVES 55-56 (2d ed. 1976);
38. WILLIAM A. ROBINSON, THOMAS B. REED, PARLIAMENTARIAN 195-234 (1930).
39. HoUSE MANUAL, supra note 10, § 59, at 25, § 388, at 196.
40. S.J0URNAL, ist Cong., lstSess. 13 (Apr. 16,1789).
41. RIDDIcK & FRUMIN, supra note 8, at 1217, 1220.
42. See ROY SWANSTROM, THE UNITED STATES SENATE 1787-1801, S. Doc. 100-31, at 37 (1988) (discussing prior legislative experience of early senators);
43. 1 GEORGE H. HAYNES, THE SENATE OF THE UNITED STATES: ITS HISTORYAND PRACTICE 43 (1938) (same).
44. More detailed treatments of the histoxy include SARAH A. BINDER & STEVEN S. SMITH, POLITICS OR PRINCIPLE? FILIBUSTERING IN THE U.S. SENATE 1-81, 197-218 (1997);
45. FRANKLIN L. BURDETFE, FILIBUSTERING IN THE SENATE (1940);
46. SENATE CLOTURE RULE, supra note 14.
47. GREGORY J. WAWRO & ERIC SCHICKLER, FILIBUSTER: OBSTRUCTION AND LAWMAKING IN THE U.S. SENATE 61-157 (2006);
48. Catherine Fisk & Erwin Chemerinsky, The Filitnrster, 49 STAN. L. REV. 181, 185-213 (1997).
49. The Senate did originally have a motion for the previous question, which is today used in many legislative bodies as a tool to force an immediate vote. While the evidence is sparse, it appears that in the early Senate the motion did not function as a cloture motion. The motion was rarely used and was eliminated from the Senate rules in 1806 without much fanfare.
50. JOSEPH COOPER, THE PREVIOUS QUESTION: ITS STANDING AS A PRECEDENT FOR CLOTURE IN THE UNITED STATES SENATE, S. DOC. NO. 87-104, at 1-2,26 (1962);
51. BINDER & SMITH, supra note 24, at 35-39.
52. There were some limitations on debate. The original Senate rules provided that no member could speak twice in a debate on the same day without permission, and Jefferson's Manual gave the chair the (theoretical) power to restrain impertinent and superfluous debate.
53. S. JOURNAL, lstCong., lstSess. 13 (Apr. 16,1789);
54. HOUSEMANUAL, supranote 10, § 359, at 175.
55. Indeed, Maclay reports obstructive debate in the first Congress on the bill to establish a permanent capital. The Diaty of William Maclay and Other Notes on Senate Debates, in 9 DOCUMENTARY HISTORY OF THE FIRST FEDERAL CONGRESS 1789-1791, at 156 (Kenneth R. Bowling & Helen E. Veit eds., 1988) (hereinafter Maclay's Diasy].
56. SARAH A. BINDER, MINORITY RIGHTS, MAJORITY RULE: PARTISANSHIP AND THE DEVELOPMENT OF CONGRESS 38-40 (1997);
57. BINDER & SMITH, supra note 24, at 50-51.
58. BURDETRE, supra note 24, at 14-15.
59. Probably most notably, Reed put an end to the obstructive "disappearing quorum" tactic by asserting the Speaker's power to count members as present even if they refused to vote.
60. See GALLOWAY & WISE, supra note 19, at 55-56 (describing Reed's parliamentary rulings and changes to the House rules);
61. ROBINSON, supra note 19, at 195-234 (same).
62. See LUTHER STEARNS GUSHING, LEX PARLIAMENTARIA AMERICANA: ELEMENTS OF THE LAW AND PRACrICE OF LEGISLATIVE ASSEMBUES IN THE UNITED STATES OF AMERICA 1 792, at 311 (1856) (describing the practice of state legislatures and stating that " legislative assembly can make any rules, which shall be binding upon its successors, even until abrogated or rescinded by them⋯. [T]he system of standing orders is not in use in our legislative bodies⋯.");
63. NAT'L CONFERENCE OF STATE LEGISLATURES, MASON'S MANUAL OF LEGISLATIVE PROCEDURE § 12.3 (rev. ed. 2000) (endorsing the view that rules expire);
64. Donald S. Lutz, The Colonial and Early State Legislative Process, in INVENTING CONGRESS 49, 53 (Kenneth R. Bowling & Donald R. Kennon eds., 1999) (stating that colonial legislatures adopted or readopted rules at the start of each session).
65. The British House of Commons, which is not contended to be a continuing body, traditionally governed itself in part through standing orders that were presumptively continuous from Parliament to Parliament but were not entrenched.
66. THOMAS ERSKINE MAY, A TREATISE UPON THE LAW, PRIVILEGES, PROCEEDINGS AND USAGE OF PARLIAMENT 132 (photo. reprint 1971) (1844);
67. 2 JOSEF REDLICH, THE PROCEDURE OF THE HOUSE OF COMMONS 6 (1908);
68. see also supra note 19 and accompanying text (discussing House rules from 1860 to 1890, which purported to be continuous from Congress to Congress);
69. cf MICH. COMP. LAWS § 4.42 (2004) (providing that upon assembling, the houses operate "under the rules of the preceding houses as temporary rules").
70. McGrain v. Daugherty, 273 U.S. 135 (1927);
71. e.g., 105 CONG. REC. 109, 111 (1959) (statement of Sen. Robertson) (saying that McGrain held "that the Senate is a continuing body").
72. McGrain, 273 U.S. at 180-82.
73. See, e.g., S. JoURNAL, 9th Cong., 1st Sess. 18 (Jan. 9, 1806) (referring to a proposal to amend the 23rd, 27th, 35th, and 41st rules).
74. For instance, the entries in the Annals and Journal for March 26, 1806, the date the Senate adopted the general revision, show that the Senate adopted the resolution without a call for the yeas and nays, which is required if one-fifth of the members demand it. 15 ANNALS OF CONG. 201 (1806);
75. S.JOURNAL, 9th Cong., 1st Sess. 65 (Mar. 26, 1806).
76. Such was the case regarding the decision whether bills acted upon by only one house in the first session had to start from scratch in the second session.
77. See S. JOURNAL, 1st Cong., 2d Seas. 107 (Jan. 25, 1790) (recording 10-8 vote);
78. Maclay's Diaiy, supra note 26, at 185-91 (summarizing debate over the course of several days).
79. BINDER & SMITh, supra note 24, at 51, 53-54, 80;
80. BURDETFE, supra note 24, at 39;
81. WAWRO & SCHIGKLER, supra note 24, at 56-57.
82. BURDETRE, supra note 24, at 43, 79-80;
83. WAWRO & SCI-IICKLER, supra note 24, at 184 fig.8.1, 186 fig.8.2.
84. WAWRO & SCHIGKLER, supra note 24, at 185-86.
85. BURDEi-FE, supra note 24, at 218-19;
86. WAWRO & SCHICKLER, supra note 24, at 70 tbl.3.1.
87. BURDETFE, supra note 24, at 220.
88. See CONG. GLOBE, 26th Cong. 2d Sess. 236-56 (1841) (reporting the debate over the printers).
89. See 4 CoNG. REC. 309, 431-38 (1876) (reporting relevant portions of the debate over the joint rules);
90. 5 HINDS, supra note 19, § 6782-89 (discussing the abrogation of the joint rules).
91. See infra Part V.A.2 (discussing the extent of the congressional contempt power).
92. 55 CONG. Rrc. 8, 10 (1917) (asserting that, despite many invocations of continuity, the matter 'had never been directly considered" or given 'serious reflection").
93. Id.atl5,17.
94. 41 THE PAPERS OF WOODROW WILSON 319-20 (Arthur S. Link ed., 1983).
95. SENATE CLOTURE RuLE, supra note 14, at 17.
96. The change in the Senate's rules was codified in Rule XXII, which remains the location of today's version of the cloture rule.
97. Id.
98. see also supra notes 7-9 and accompanying text (discussing the current version of Rule XXII).
99. WAWRO & SCHICKLER, supra note 24, at 97-99.
100. See SENATE CLOTURE RULE, supra note 14, at 20 (referring to Sen. Vandenberg's statement that "'in the final analysis, the Senate has not [ effective cloture rule at all'").
101. RIDDICK & FRUMIN, supra note 8, at 1221.
102. SENATE CLOTURE RULE, supra note 14, at 25.
103. Id.
104. Id. at 30-32.
105. E.g., MICHAELJ. GERHARDT, THE POWER OF PRECEDENT 120-23 (2008).
106. E.g., Martin B. Gold & Dimple Gupta, The Constitutional Option To Change Senate Rules and Procedures: A Majoritarian Means To Overcome the Filibuster, 28 HARV. J.L. & PUB. POL'Y 205, 256-60, 262-72 (2004);
107. see also WAWRO & SCHICKLER, supra note 24, at 65-72 (citing nineteenth- century precedents for majoritarian change through parliamentary rulings).
108. E.g., 99 CoNG. REC. 112 (1953) (statement of Sen. Taft);
109. see also BINDER & SMITH, supra note 24, at 176-81 (discussing the views of Sen. Mansfield, Sen. Gore, and others in 1960s reform efforts).
110. See, e.g., BINDER & SMITH, supra note 24, at 181-82 (concluding that in the 1975 reform efforts, "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");
111. SENATE CLOTURE RULE, supra note 14, at 24-25, 28-29 (discussing opinions by Vice Presidents Nixon and Humphrey).
112. See e.g., 115 CONG. REC. 419-21 (1969) (statement of Sen. Church) (supporting majority's right to change rules but opposing majority cloture);
113. see also BINDER & SMITH, supra note 24, at 169 (concluding that "seldom, perhaps never" has a majority of the Senate supported simple-majority cloture).
114. See BINDER & SMITH, supra note 24, at 175-76 (discussing the 1959 reform effort);
115. id. at 181-82 (discussing the 1975 reform effort).
116. Cf INS v. Chadha, 462 U.S. 919, 944-45, 959 (1983) (declaring the legislative veto unconstitutional despite decades of practice);
117. United States v. Ballin, 144 U.S. 1, 5 (1892) ('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.").
118. E.g., Payne v. Tennes see, 501 U.S. 808, 828 (1991) ('Statz decisis is not an inexorable command.").
119. Barbara Sinclair, The "60-Vote Senate": Strategies, Process, and Outcomes, in U.S. SENATE EXCEPTIONALISM 241, 241-44 (Bruce I. Oppenheimer ed., 2002);
120. see also David Herszenhorn, How the Filibuster Became the Rule, N.Y. TIMES, Dec. 2, 2007, at 45 ('[F]ilibusters and the efforts to overcome them are being used more frequently, and on more issues, than at any other point in history.").
121. Today's filibusters typically do not feature actual extended debate; rather, mere threats to use up the Senate's valuable time are sufficient to block action.
122. See Fisk & Chemerinsky, supra note 24, at 200-09 (discussing the rise of the "stealth filibuster").
123. John Cochran, Senators Uneasy with Proposal To Alter Filibuster Rule on Judicial Nominations, 61 CQWKLY. 1581, 1605 (2003).
124. There are a few ways this could play out. The presiding officer might make a parliamentary ruling, which would then be appealed to the Senate, or he might refer a point of order to the Senate. The key would be that the Senate would then decide the procedural question through a motion that cannot be filibustered, such as a motion to table.
125. See generally BETSY PALMER, CONG. RESEARCH SERV., CHANGING SENATE RULES: THE "CONSTITUTIONAL" OR "NUCLEAR" OPTION 3-7 (2005) (describing various scenarios for majoritarian rules change).
126. Carl Hulse, Compromise in the Senate: Bipartisan Group in Senate Averts Judge Showdown, N.Y. TIMES, May 24, 2005, at Al;
127. Memorandum of Understanding on Judicial Nominations (May 23, 2005), available at http://www.c-span.org/pdf/senatecompromise.pdf
128. E.g., S. Res. 416, 111th Cong. (2010) (resolution introduced by Sen. Harkin);
129. S. Res. 396, 111th Cong. (2010) (resolution introduced by Sen. Udall);
130. H.R. Res. 1018, 111th Cong. (2010) (resolution introduced by Rep. McDermott);
131. Paul Kane, Filibuster Changes: Proceed with Caution, WASH. POST, Feb. 8, 2010, at A13 (discussing Senate Democrats' recent push to change filibuster rules);
132. Paul Krugman, A Dangerous Dysfunction, N.Y. TIMES, Dec. 21, 2009, at AM (advocating majority cloture);
133. Posting of Jack Balldn to Balkinization, Our Dysfunctional Senate, http://ba1kin.blogspot.com/2009/11/our-dysfunctional-senate.html (Nov. 22, 2009, 07:35 EST) (" [ Senate rules] is perhaps the most seriously needed change in our governmental system today.");
134. see also J. Taylor Rushing, Sens. Schumer and McConnell Go Head-to-Head in Filibuster Reform, THE HiLL, Apr. 22, 2010, http://thehill.com/homenews/ senate/93939-sens-schumer-and-mcconnell-go-head-to-head-in-filibuster-reform (reporting on the first of a series of Senate hearings on filibuster reform).
135. Having sixty senators, as the Democrats have intermittently possessed, hardly means filibusters are not a problem.
136. See Carl Hulse, What's So Super About a Supermajority?, N.Y. TIMES, July 2, 2009, at A13 (observing that disagreements within the Democratic caucus and other factors rendered the Democrats' supermajority largely ineffective).
137. See infra notes 2 17-18 and accompanying text (discussing the controversy over the reconciliation procedure).
138. Cf Mark Tushnet, Constitutional Hardball 37 J. MARSHALL L. REV. 523, 532 (2004) (distinguishing between ordinary constitutional politics and transformative periods during which taken-for-granted arrangements are brought into question).
139. Most notably, Bruce Ackerman and Akhil Amar have both argued that Article V is not the exclusive method for amending the Constitution. 2 BRUCE ACKERMAN, WE THE PEOPLE: TRANsFORMATIONs 15-17 (1998);
140. Akhil Reed Amar, The Consent of the Governed: Constitutional Amendment Outside Article V, 94 COLUM. L. REv. 457 (1994).
141. There are important differences between Ackerman and Amar when it comes to amendment outside Article V, but we need not pursue those here.
142. Cf Hem v. Freedom from Religion Found., Inc., 551 U.S. 587, 618 (2007) (Kennedy, J., concurring) ('Government officials must make a conscious decision to obey the Constitution whether or not their acts can be challenged in a court of law and then must conform their actions to these principled determinations.");
143. Paul Brest, The Conscientious Legislator's Guide to Constitutional Interpretation, 27 STAN. L. REV. 585, 589 (1975) ('Decisions not strildng down laws do not always mean that the laws are constitutional ⋯ for a court's failure to invalidate may only reflect its institutional limitations.").
144. For discussions of the justiciability of disputes over legislative rules, see, for example, JOSH CHAFETz, DEMOCRACY'S PRIVILEGED FEW 49-67 (2007);
145. Aaron-Andrew P. Bruhl, Return of the Line Item Veto? Legalities, Practicalities, and Some Puzzles, 10 U. PA. J. CONST. L. 447, 486-98 (2008);
146. Rebecca M. Kysar, Listening to Congress: Earmark Rules and Statutoay Interpretation, 94 CORNELL L. REv. 519, 553-60 (2009);
147. John C. Roberts, Are Congressional Committees Constitutional?: Radical Textualism, Separation of Powers, and the Enactment Process, 52 CAsE W. RES. L REV. 489,530-42 (2001).
148. See, e.g., 105 CONG. REC. 113-14 (1959) (statement of Sen. Pastore) ("We are not debating the expediencies of the moment. We are debating the fundamental and constitutional legal question involved, which is the question of whether the Senate shall have the right to make the rules which will guide its actions.");
149. 105 CONG. REC. 109 (1959) (statement of Sen. Robertson) ("I take this position not for reasons of expediency, with respect to legislative objectives, but because I am convinced that to give up the concept of the Senate as a continuing body will undermine a cornerstone of our Government⋯. ");
150. 103 CONG. REC. 153 (1957) (statement of Sen. Russell) ("[I]f I were in favor of majority gag rule in the Senate, and if I favored the scxalled civil-rights legislation, I could not, in view of the respect which I have for the Constitution, accept the proposal that the Senate is not a continuing body.");
151. 99 CONG. REC. 108 (1953) (statement of Sen. Taft) ("This is a constitutional question; it is not a question of civil rights [i.e., one's views on the passage of civil-rights legislation]; it is a question of whether the Senate is a continuing body.").
152. E.g., Eastland v. U.S. Servicemen's Fund, 421 U.S. 491, 512 (1975);
153. McGrain v. Daugherty, 273 U.S. 135, 181-82 (1927);
154. 1 HAYNES, supra note 23, at 341;
155. Gerhardt, supra note 14, at 464-65;
156. Interviews with Floyd M. Riddick, supra note 15, at 121-220.
157. U.S. CONST, art I, § 3, cl. 6;
158. id. § 5, cl. 2.
159. Id. § 7.
160. Id. § 3, cl. 4.
161. Id. §5, cl. 1;
162. aw John O. McGinnis & Michael B. Rappaport, The Constitutionality of Legislative Supermajority Requirements: A Defense, 105 YALE LJ. 483, 486-87 (1995) (using the Quorum Clause to rebut arguments in favor of mandatory majority voting).
163. U.S. CONST, art. I, § 5, cl. 2.
164. Accordingly, even many of those who otherwise deny that Congress can set a supermajority voting rule on final passage believe the filibuster is constitutionally permitted. E.g., Jed Rubenfeld, Rights of Passage: Majority Rule in Congress, 46 DUKE LJ. 73, 88 (1996)("[T]he filibuster rule does not purport to alter the Constitution's rules of recognition⋯. The argument here is not that any rule impeding majority rule in the House or Senate is unconstitutional."); (Pubitemid 126404524)
165. cf. Bruce Ackerman et al., An Open Letter to Congressman Gingrich, 104 YALE LJ. 1539, 1543 (1995) (refraining from commenting on the constitutional merits of the filibuster, but distinguishing it from an unconstitutional supermajority voting rule);
166. Susan Low Bloch, Congressional Self-Discipline: The Constitutionality of Supermajority Rules, 14 CONST. COMMENT. 1, 2 (1997) (distinguishing cloture rules from voting rules).
167. But see Brett W. King, Deconstructing Gordon and Contingent Legislative Authority: The Constitutionality of Supermajority Rules, 6 U. CHI. L. SCH. ROUNDTABLE 133, 184-85 (1999) (rejecting attempts to distinguish the filibuster from a supermajority voting rule).
168. E.g, Kenneth O. May, A Set of Independent Necessary and Sufficient Conditions for Simple Majority Decision, 20 ECONOMETRICA 680, 683 (1952) (arguing that any group decision "not based on simple majority decision ⋯ will either fail to give a definite result in some situation, favor one individual over another, favor one alternative over the other, or fail to respond positively to individual preferences").
169. U.S. CONST, art. I, § 3, cl. 1.
170. See Jeremy Waldron, Principles of Legislation, in THE LEAST EXAMINED BRANCH: THE ROLE OF LEGISLATURES IN THE CONSTITUTIONAL STATE 15, 30 (Richard w. Bauman & Tsvi Kahana eds., 2006) (justifying majority rule in legislatures by linking it to constituents' right to equal treatment in the representational structure).
171. Some others have made the same observation. See King, supra note 80, at 187 ("To a large extent, the arguments [in favor of majority rule] from text and tradition seem to be indeterminate.");
172. John C. Roberts, Majority Voting in Congress: Further Notes on the Constitutionality of the Senate Cloture Rule, 20 J.L. & POL. 505, 523-24 (2004) ("[O]nly when one combines majority rule principles with two other key 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.").
173. U.S. CONST, art. I, § 5, cl. 2.
174. 103 CONG. REC. 25 (1957) (brief submitted by Sen. Douglas);
175. 99 CONG. REC. 220 (1953) (statement of Sen. Humphrey);
176. 55 CONG. REC. 9 (1917) (statement of Sen. Walsh).
177. 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 140,142 (Max Farrand ed., 1966) [hereinafter RECORDS].
178. Julian N. Eule, Temporal Limits on the Legislative Mandate: Entrenchment and Retroactivity, 1987 AM. B. FOUND. RES. J. 379, 409 n.139;
179. accord Eric A. Posner & Adrian Vermeule, Legislative Entrenchment: A Reappraisal, 111 YALE LJ. 1665, 1683 (2002);
180. Virginia A. Seitz & Joseph R. Guerra, A Constitutional Defense of "Entrenched" Senate Rules Governing Debate, 20 J.L. & POL. 1, 6-7 (2004).
181. Various commentators have remarked on the pivotal role played by the entrenchment challenge. E.g., Fisk & Chemerinsky, supra note 24, at 247 (finding textual arguments against Senate rules "not conclusive" and relying instead on the "fundamental constitutional principle" of anti-entrenchment);
182. Gerhardt, supra note 14, at 464 (describing the anti-entrenchment principle as the strongest argument against the filibuster);
183. McGinnis & Rappaport, supra note 78, at 504-05 (deeming textual arguments against insulated rules inconclusive and relying instead on the principle of legislative equality over time);
184. Roberts, supra note 84, at 540 (arguing that a binding supermajority rule would "violate the established anti-entrenchment principle which lies at the heart of our representative democracy");
185. Vikram David Amar, Can the Senate Bind Itself So that Only a Supermajority Can Change Its Rules? A Key Issue in the Controversial Filibuster Debate, WRIT, June 27, 2003, http://writ.news.findlaw.com/amar/20030627.html (emphasizing the key role of the anti-entrenchment principle in challenging the Senate's supermajority rules).
186. 1 WILLIAM BLACKSTONE, COMMENTARIES *90.
187. It does not follow as a matter of logic that omnipotence requires the anti-entrenchment rule. There are at least two types of omnipotence: "continuing" omnipotence that cannot be diminished and "self-embracing" omnipotence that holds the power to diminish itself. See H.L.A. HART, THE CONCEPT OF LAW 149-50 (2d ed. 1994) (distinguishing between these two types of omnipotence);
188. see also A.V. DlCEY, INTRODUCTION TO THE STUDY OF THE LAW OFTHE CONSTITUTION 62-68 (8th ed. 1915) (discussing the British conception of parliamentary sovereignty and its relationship to entrenchment).
189. The claim is not that the concepts of sovereignty and equality necessarily entail a certain rule on entrenchment, just that they in fact went together as a historical matter.
190. John O. McGinnis & Michael B. Rappaport, Symmetric Entrenchment: A Constitutional and Normative Theory, 89 VA. L. REV. 385, 394 (2003) (distinguishing between British and American understandings of the anti-entrenchment rule).
191. Newton v. Comm'rs, 100 U.S. 548, 559 (1879).
192. Eule, supra note 88, at 384-85 (describing different types of entrenchment).
193. The anti-entrenchment principle is, at least in its broad outlines, almost universally accepted.
194. But for an argument denying its status as a constitutional rule, see generally Posner & Vermeule, supra note 88.
195. Compare Seitz & Guerra, supra note 88, at 22-32 (defending this distinction).
196. Roberts, supra note 84, at 543-47 (rejecting the distinction).
197. For instance, Professor Gerhardt writes: "While [the anti-entrenchment] argument is the strongest of those arrayed against the filibuster, it is flawed for several reasons. Perhaps most importantly, the Senate is a 'continuing body".
198. Gerhardt, supra note 14, at 464.
199. E.g., U.S. CONST, art. V (providing that, even if the arduous supermajoritarian amendment procedures are complied with, "no State, without its Consent, shall be deprived of its equal Suffrage in the Senate").
200. see SANFORD LEVINSON, OUR UNDEMOCRATIC CONSTITUTION: WHERE THE CONSTITUTION GOES WRONG (AND HOW WE THE PEOPLE CAN CORRECT IT) 21 (2006) ("As a practical matter ⋯ Article V makes it next to impossible to amend the Constitution with regard to genuinely controversial issues, even if substantial-and intense-majorities advocate amendment.").
201. Cf. JOHN LOCKE, SECOND TREATISE OF GOVERNMENT ch. 8, §§ 119-21 (C.B. Macpherson ed., 1980) (1690) (explaining that people born under a government that they did not create can be considered to implicitly consent to its authority by living under that government and accepting its benefits).
202. Amar, supra note 70, at 457-58,508.
203. John O. McGinnis & Michael B. Rappaport, A Pragmatic Defense of Originalism, 101 Nw. U. L. REV. 383, 388-89, 392-94 (2007).
204. JED RUBENFELD, FREEDOM AND TIME 145 (2001).
205. Richard A. Primus, When Should Original Meanings Matteri, 107 MICH. L. REV. 165, 198 (2008) (emphasis added).
206. To be clear, Primus is describing this approach rather than endorsing it.
207. CONG. GLOBE, 26th Cong., 2d Sess. 240 (1841) (statement of Sen. Buchanan) (emphasis added).
208. RUBENFELD, supra note 101, at 92-94.
209. Some philosophers would challenge our easy acceptance of this proposition, arguing that an individual person should be viewed as a collection of successive selves existing at different times.
210. See generally DEREK PARFIT, REASONS AND PERSONS pt. 3 (rev. ed. 1987) (challenging familiar assumptions about personal identity).
211. For purposes of this argument, we can assume that individual commitment is unproblematic.
212. Cf. THE FEDERALIST NO. 71, at 433 (Alexander Hamilton) (Clinton Rossiter ed., 1961) ("The representatives of the people, in a popular assembly, seem sometimes to fancy that they are the people themselves⋯.").
213. Conceiving of these kinds of issues in terms of agency and authority is not original to me. Notably, Julian Eule argues that entrenchment is forbidden because legislators are elected only to limited terms; just as they may not extend their own terms into the future, they may not extend their influence into the future either.
214. Eule, supra note 88, at 403-05.
215. But Eule's argument seems deficient because the existence of a limited term does not necessarily show that the principals did not confer authority to make binding commitments that last beyond that term. In business settings, for instance, agents can make commitments (e.g., through contracts) that bind the company for a period beyond the agents' term in office. So term limits do not
216. See JOINT COMM. ON PRINTING, U.S. CONG., OFFICIAL CONGRESSIONAL DIRECTORY, 11 lTH CONGRESS, 2009-2010, at 526-42 (2009) (providing all dates for when Congress has been in and out of session);
217. cf. AKHIL REED AMAR, AMERICA'S CONSTITUTION: A BIOGRAPHY 132 (2005) ("While the new Congress would go in and out of session, America itself would always be in session, as would the nation's new presiding officer⋯. [Several clauses of the Constitution] plainly presupposed the essential continuity of presidential power.").
218. See infra notes 130-38 and accompanying text (elaborating on diis point).
219. 7 ANNALS OF CONG. 685 (1797) (remarks of Rep. Smith);
220. see also CONG. GLOBE, 26th Cong., 2d Sess. 237 (1841) (remarks of Sen. Clay) (calling both houses "continuous bodies");
221. Sedi Barrett Tillman, Defending the (Not So) Indefensible, 16 CORNELL J.L. & PUB. POL"Y 363, 368 n.22,379 (2007) (calling both chambers continuous in this sense).
222. Supra text accompanying note 103.
223. CONG. GLOBE, 26th Cong., 2d Sess. 236 (1841) (statement of Sen. Allen).
224. 9 CONG. REC. 47 (1879) (statement of Sen. Anthony).
225. 105 CONG. REC. 122 (1959) (statement of Sen. Ervin).
226. This familiar example derives from Plutarch's description of Theseus' ship: The ship wherein Theseus and the youth of Athens returned had thirty oars, and was preserved by the Athenians ⋯ for they took away the old planks as they decayed, putting in new and stronger timber in their place, insomuch that this ship became a standing example among the philosophers, for the logical question of things that grow, one side holding that the ship remained the same, and the odier contending that it was not the same.
227. PLUTARCH, THE LIVES OF THE NOBLE GRECIANS AND ROMANS 14 (Arthur Hugh Clough ed., John Dryden trans., Modern Library 1900).
228. See supra Part HI (examining the links between continuity, entrenchment, and commitment).
229. See supra note 15 and accompanying text (introducing the basic rationale for the continuing-body theory).
230. Certainly, a change in the Senate's term structure, such as eliminating the overlapping classes, might have an impact on the Senate's identity. But the same is true of other changes to the Senate's structure that do not eliminate overlap, such as having one-sixth of senators elected every year, or changing senatorial terms to sixty years with one-third elected every twentieth year. All of these changes might be relevant to maintaining identity, because the Senate's current term structure might be part of the criteria of its identity. The point is just that the typical person would not focus upon overlapping per se as the thing that makes the Senate identical over time.
231. As one senator has observed: If the judges of the Supreme Court were all to die to-day, and their successors should be appointed to-morrow, it would still be the same Supreme Court, although the individuals would be changed. [The House of Representatives'] ⋯ character does not depend on its personnel; its character does not depend on the individuality of its members; it is the House which, according to the true idea of the Constitution, is a perpetual House, whoever may constitute the individual members of that House.
232. 4 CONG. REC. 432 (1876) (statement of Sen. Thurman).
233. See U.S. CONST, amend. XVII, cl. 2 (providing for filling of vacancies by special elections and temporary gubernatorial appointments).
234. In recent decades, typically about ninety percent of incumbents seek reelection, and ninety percent of them succeed. REELECTION RATES OF INCUMBENTS 23 fig.l, 27 (David C. Huckabee ed., 2003). Reelection rates were also very high in the earliest Houses, but fewer incumbents sought reelection, so turnover was higher.
235. Id. at 22.
236. Id. at 3 fig. 1, 4 figs.2 & 3, 12.
237. MILDRED AMER, CONG. RESEARCH SERV., FRESHMEN IN THE HOUSE OF REPRESENTATIVES AND SENATE BV POLITICAL PARTY: 1913-2005, at 5 (2005), available at http://www.llsdc.org/sourcebook/docs/CRS-RS20723.pdf.
238. SWANSTROM, supra note 23, at 80;
239. DANIEL WlRLS & STEPHEN WlRLS, THE INVENTION OF THE UNITED STATES SENATE 171-74 (2004).
240. Many senators quit in order to take jobs in state government.
241. Id. at 171-72.
242. REELECTION RATES OF INCUMBENTS, supra note 121, at 8 tbl.l;
243. SWANSTROM, supra note 23, at 80-81.
244. REELECTION RATES OF INCUMBENTS, supra note 121, at 26 tbl.l;
245. WIRLS & WIRLS, supra note 124, at 172;
246. Morris P. Fiorina et al., Historical Change in House Turnover, in CONGRESS IN CHANGE: EVOLUTION AND REFORM 24,29-32 (Norman J. Ornstein ed., 1975).
247. WIRLS & WlRLS, supra note 124, at 172-73.
248. For example, in the 12th Congress the average representative had served 5.6 years, and the average senator had served 5.2 years.
249. Id.
250. SWANSTROM, supra note 23, at 80.
251. See supra text accompanying notes 19-20 (describing how each new House has the power to adopt its own rules).
252. E.g., 99 CONG. REG 115 (1953) (statement of Sen. Russell) (referring to continuing quorum);
253. 99 CONG. REC. 108 (1953) (statement of Sen. Taft) ("I diink [the precedents holding that the Senate is a continuing body] arose out of the fact that the Senate always has at least 64 Members, or substantially that number. They can meet and can act.")
254. 4 CONG. REC. 432 (1876) (statement of Sen. Thurman) (explaining that die Senate is said to be perpetual because a quorum is always in existence).
255. Because a majority is required for a quorum, it is evidendy crucial here diat two-diirds of die Senate carries over, radier dian just half. As Senator Thurmond stated: Had die Founding Fadiers desired condnuity only, but less dian a continuing body, they could have provided for a staggered term of 4 years for a Senator widi one-half of the Senate returning from one session to the next. This would not have provided die necessary quorums to do business at all times, and die Senate would not have been a condnuing body.
256. 105 CONG. REC. 144 (1959);
257. cf. Robertson v. State ex reL Smith, 10 N.E. 582, 603 (Ind. 1887) (Niblack, J., concurring) (opining that the state senate was not a condnuing body because one-half of its members stood for elecdon each term but two-diirds were required for a quorum).
258. 4 CONG. REC. 438 (1876) (statement of Sen. Maxey).
259. 55 CONG. REC. 11 (1917) (statement of Sen. Poindexter).
260. Id. (statement of Sen. Walsh).
261. U.S. CONST, amend. XX, § 1 ("[T]he terms of Senators and Representatives [shall end] at noon on the 3d day of January ⋯ and the terms of their successors shall then begin." (emphasis added)). The January 3rd turnover date strongly implies, and arguably implicitly commands, that elections take place and new members take office before that date, so that the terms can "then begin".
262. To be sure, one can imagine bizarre scenarios, especially before the Twentieth Amendment, that would generate a period during which no members of the House existed. What if an outgoing Congress (or state legislatures, as they have authority over election dates in the absence of congressional action, U.S. CONST, art. 1, § 4, cl. 1), set elections for a date after the previous two-year constitutional term expired? For example, House elections might be scheduled for June of an odd-numbered year, even though the two-year term of the old outgoing House's members expired months earlier.
263. In this scenario, in April there would be no members of the House. Even before the Twentieth Amendment, one could attack such an electoral calendar as unconstitutional, though the argument would have to rely on structural inferences that are less certain than they are today.
264. SeeTillman, supra note 110, at 379 (arguing that such an attempt to create a gap would be unconstitutional).
265. Nonetheless, whatever is or might have been possible, there never has been any such gap in the House: at the time of the expiration of the old House, the vast bulk of the newly elected or reelected members of the new House are in place. 4 CONG. REC. 432 (1876) (statement of Sen. Thurman).
266. That is why Senator Walsh could say in 1917, before the Twentieth Amendment's adoption, that "there never is any interval." 55 CONG. REC. 11 (1917).
267. U.S. CONST, art. II, § 3 ("[The President] may, on extraordinary Occasions, convene both Houses, or either of them.").
268. Id. at amend. XX, § 2 (providing that the new House will meet on January 3rd, unless a different date is provided by law).
269. I recognize that there could be various scenarios-such as the death, incapacity, or resignation of many Representatives or the failure of jurisdictions to hold elections-that might deprive the House of a quorum, depending on how one defines the "majority" that the Constitution says constitutes a quorum.
270. Id. at art. II, § 5, cl. 1 ("[A] Majority of each [House] shall constitute a Quorum to do Business.").
271. Compare John Bryan Williams, How to Survive a Terrorist Attack: The Constitution's Majority Quorum Requirement and the Continuity of Congress, 48 WM. & MARY L. REV. 1025, 1064-67 (2006) (arguing that the constitutionally required denominator for computing a quorum is the whole number of authorized seats).
272. With HOUSE MANUAL, supra note 10, § 53, at 22-23 (explaining that long-standing House practice excludes authorized seats from the denominator for various reasons, such as death of a member). But these possibilities affect the Senate as well.
273. See generally MAY, supra note 31, at 31-37 (describing royal prerogatives to summon and dissolve Parliament);
274. Tillman, supra note 110, at 377 (discussing this difference between Parliament and Congress).
275. The British Parliament today is highly continuous, much like our own legislature, and this transition was already under way by the time of the Founding. See 1 BLACKSTONE, supra note 90, at *146 ("[B]y some modern statutes, on the demise of a king or queen, if there be then no parliament in being, the last parliament revives⋯.");
276. THOMAS ERSKINE MAY, ERSKINE MAY'S TREATISE ON THE LAW, PRIVILEGES, PROCEEDINGS, AND USAGE OF PARLIAMENT 272 (William McKay et al. eds., 23d ed. 2004).
277. The author notes: [There is] an interregnum between the dissolution of a Parliament and the meeting of its successor during which there is no Parliament in existence; but the principle of the unbroken continuity of Parliament is for all practical purposes secured [today] by the fact that the proclamation which dissolves a Parliament also provides for the election and meeting of a new Parliament.
278. Id.
279. Eg, 99 CONG. REC. 115 (1953) (statement of Sen. Russell) (arguing that the Senate is continuous because of its term structure and the Vice President's four-year term);
280. CONG. GLOBE, 26th Cong., 2d Sess. 240 (1841) (statement of Sen. Buchanan) (arguing that the Senate is a permanent and continuous body and noting that the "Senate always had a President");
281. CUSHING, supra note 30, ¶ 272, at 104-05 (noting that the Senate is a "continuous and permanent body" and explaining that there is always a presiding officer "ready to proceed at once with his duties ⋯ without any further authority from the senate");
282. cf. Werts v. Rogers, 28 A. 726, 760 (NJ. 1894) (deciding that the New Jersey Senate, despite two-thirds carryover, differed from the U.S. Senate regarding perpetual existence because die latter has a permanent presiding officer, i.e. the Vice President).
283. U.S. CONST, art. I, § 3, cl. 5.
284. One could respond that the office of the President Pro Tempore is more permanent than that of the Speaker because a senator's election to that post does not automatically end at the close of a two-year Congress.
285. See infra Part VA.3 (discussing the tenure of the President Pro Tempore).
286. The Constitution does not say exacdy how long the President Pro Tempore (or the Speaker, for that matter) can stay in office, and indeed that has been a matter of some debate and evolution over time.
287. See infra Part VA.3. But to the extent that die President Pro Tempore's continuity in office has been justified by the Senate's continuity, see, e.g., S. REP. No. 44-3, at 2 (1876);
288. 21 CONG. REC. 46 (1889) (statement of Sen. Reagan), it would be wholly circular to use diat to prove the Senate's continuity.
289. Of course, none of diis affects the point diat permitting continuous tenure in office does nothing to prevent vacancies in the office.
290. Eg., THE FEDERALIST NO. 62 (probably James Madison), supra note 106, at 379 (noting that the Senate "ought to hold its authority by a tenure of considerable duration" to give it "firmness");
291. 1 RECORDS, supra note 87, at 218 (Madison's notes from June 12, 1787, documenting that Madison and Randolph favored longer senatorial terms to promote stability and bolster the Senate's ability to resist the House);
292. id. at 289-91 (Madison's notes from June 18, 1787, documenting Hamilton's arguments in favor of senators holding office for life, in order to attain "stability and permanency").
293. THE FEDERALIST NO. 62 (probably James Madison), supra note 106, at 380;
294. see also id. No. 77 (Alexander Hamilton), at 459 (arguing that the Senate would be more consistent than the President);
295. James Wilson, Of the Constitutions of the United States and of Pennsylvania-of the Legislative Department, in 2 COLLECTED WORKS OF JAMES WILSON 829,853 (Kermit L. Hall & Mark David Hall eds., 2007) (1790-91) ("The qualities of stability and consistency will be expected chiefly from the senate; because the senators continue longer in office; and because only a part of them can be changed at any one time.").
296. For example, the decision to have staggered elections might also have been motivated by the desire to guard against the risk that a group of state legislatures might temporarily conspire to paralyze the federal government by refusing to appoint enough senators to make a quorum.
297. See THE FEDERALIST No. 59 (Alexander Hamilton), supra note 106, at 359 ("The senators are to be chosen for the period of six years; there is to be a rotation⋯. [A] temporary combination of a few States to intermit the appointment of senators could neither annul the existence nor impair the activity of the body⋯.").
298. Another justification is that having three classes of senators would introduce enough diversity of sentiment to prevent them from banding together to aggrandize the Senate.
299. 1 RECORDS, supra note 87, at 426 (Madison's notes from June 26, 1787, documenting Wilson's arguments in favor of having three classes of senators).
300. E.g., U.S. CONST, art. I, § 5, cl. 1 (majority makes a quorum);
301. id. at cl. 2 (two-thirds needed to expel a member);
302. id. at cl. 3 (yeas and nays recorded on the vote of one-fifth of those present).
303. See generally Adrian Vermeule, The Constitutional Law of Congressional Procedure, 71 U. Cm. L. REV. 361 (2004) (discussing aspects of the Constitution that govern the legislative process).
304. 1 RECORDS, supra note 87, at 300, 309-10, 409.
305. U.S. CONST, art. I, § 5, cl. 2.
306. There is nothing logically inconsistent in saying that the House and the Senate are both continuing bodies in some sense. Indeed, at various points in this Article, I point to ways in which the House is "continuous" in one way or another. Again, the trouble is that (non) continuity can mean different things, so one needs to be careful about what exactly one means. If a claim that the House is continuous were construed to mean that the House could entrench its rules, that would conflict with established House practice and would be vulnerable to many of the arguments against the Senate's continuing-body theory presented in the rest of this Article.
307. Infra Part VA.1.
308. Infra Part V.A.2.
309. MARTIN B. GOLD, SENATE PROCEDURE AND PRACTICE 154-55 (2004).
310. HOUSE MANUAL, supra note 10, § 592, at 307, § 620, at 328;
311. RlDDICK & FRUMIN, supra note 8, at 875.
312. One could attack the historical precedents in various ways and question their consistency with constitutional principles.
313. See BRUCE ACKERMAN, THE CASE AGAINST LAMEDUCK IMPEACHMENT 42-44, 57-64 (1999).
314. Here we are just trying to lay out objectively what the prevailing practices are.
315. CONG. RESEARCH SERV., TREATIES AND OTHER INTERNATIONAL AGREEMENTS: THE ROLE OF THE U.S. SENATE 143-45 (Comm. Print 2001);
316. see 2 HAYNES, supra note 23, at 626 n.l (describing a treaty that was pending in the Senate for over twenty years).
317. Infra Part VA.3.
318. See infra note 188 (discussing evolving practices regarding the Senate President Pro Tempore).
319. Supra note 152 and accompanying text.
320. HOUSE MANUAL, supra note 10, § 620, at 328 ("An impeachment is not discontinued bythe dissolution of Parliament, but may be resumed by the new Parliament.").
321. Id. § 592, at 307.
322. Jefferson stated: When it was said above that all matters depending before Parliament were discontinued by the determination of the session, it was not meant for judiciary cases depending before the House of Lords, such as impeachments, appeals, and writs of error. These stand continued, of course, to the next session. Impeachments stand, in like manner, continued before the Senate of the United States.
323. Id. (citation omitted) (emphasis added).Jefferson does not explore the rationale for the British practice or whether that rationale applies to our system.
324. See, e.g., CHARLES TlEFER, CONGRESSIONAL PRACTICE AND PROCEDURE: A REFERENCE, RESEARCH, AND LEGISLATIVE GUIDE 27 (1989) ("[A]s a formal matter, all bills either receive enactment in a Congress, or lapse at the Congress's end.");
325. id. at 32 ("When the [second] session ends, all bills not enacted into law die." (footnote omitted)).
326. In the early decades, Congress applied this principle even more strictly such that both houses had to act during the same session of a Congress.
327. See 1 ANNALS OF CONG. 975, 1082-87, 1092-94, 1110-12, 1116-17 (Joseph Gales ed., 1834) (reporting debate and decision on this point in the 1st Congress);
328. see also 5 HINDS, supra note 19, § 6727 (summarizing historical development).
329. U.S. CONST, art. I, § 7.
330. Relying on this apparent silence in the text, Seth Barrett Tillman argues that contemporaneity is not in fact required; Congress could engage in noncontemporaneous lawmaking if it wished.
331. Seth Barrett Tillman, Noncontemporaneous Lawmaking: Could the 110th SenateEnact a Bill Passed by the 109th House?, 16 CORNELLJ.L. & PUB. POL"Y330 (2007).
332. But see generally Aaron-Andrew P. Bruhl, Against Mix-and-Match Lawmaking, 16 CORNELLj.L. & PUB. POL"Y349 (2007) (defending the conventional view).
333. As Senator Humphrey put it: [E]very Member of the Senate knows, and every reporter in the press gallery knows, and every citizen of the United States knows, and everyone else knows that at the end of every Congress bills which have cleared committees and remain on the Senate calendar but have not been acted upon by the Senate are dead, that they lose their hold on life.
334. 105 CONG. REC 142 (1959).
335. Michael Stokes Paulsen, A General Theory of Article V: The Constitutional Lessons of the Twenty-Seventh Amendment, 103 YALE LJ. 677, 730 (1993) (emphasis added).
336. ACKERMAN, supra note 152, at 64-65 (emphasis added);
337. see also id. at 9 (referring to "the death of the House that passed [a bill]").
338. To be sure, one could explain the automatic death of unenacted bills without appealing to metaphysical claims about legislative lifespans. For example, one could say that Senate approval must come in the current Congress rather than in a prior one so that we know that the Senate still supports the bill. I personally find that kind of explanation more powerful than claims about when a body expires. Yet this alternate explanation for the need for contemporaneous action also poses a problem for the continuing-body theory because it suggests that the Senate should need to express renewed support for the procedural rules each term.
339. Although the Constitution does not expressly provide such a power, the contempt power has a strong (albeit not entirely uncontested) foundation in early legislative and judicial precedents.
340. See Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 226-31 (1821) (recognizing inherent contempt power);
341. ERNEST J. EBERUNG, CONGRESSIONAL INVESTIGATIONS 37-50 (1928) (discussing the 1795-96 Randall/Whitney case in the House and the 1800 Duane case in the Senate);
342. Josh Chafetz, Executive Branch Contempt of Congress, 76 U. CHI. L. REV. 1083, 1093-1131 (2009) (discussing British and early American legislative assertions of contempt power);
343. C.S. Potts, Power of Legislative Bodies To Punish for Contempt, 74 U. PA. L. REV. 691, 719-22 (1926) (same).
344. For early criticism of Congress's claimed contempt power over non-members, see HOUSE MANUAL, supra note 10, §§ 297-98, at 138-40;
345. ST. GEORGE TUCKER, VIEW OF THE CONSTITUTION OF THE UNITED STATES, WITH SELECTED WRITINGS 146-50 (liberty Fund 1999) (1803).
346. CHAFETZ, supra note 72, at 222-34 (summarizing various contempt cases).
347. In 1857, Congress enacted a statute whereby the houses can refer certain alleged contempts to federal prosecutors for trial in the courts as ordinary crimes, with convicted defendants subject to fines and imprisonment. 2 U.S.C. §§ 192, 194 (2006).
348. More recendy, Congress has created a civil-enforcement scheme whereby a chamber can sue to seek enforcement of a legislative subpoena that is being flouted; if the witness refuses the court's order to comply, he or she can be held in contempt of court.
349. See MORTON ROSENBERG & TODD B. TATELMAN, CONG. RESEARCH SERV., CONGRESS'S CONTEMPT POWER: LAW, HISTORY, PRACTICE, AND PROCEDURE 33-46 (2007) (discussing statutory civil contempt).
350. There is express statutory audiority for enforcement suits brought on behalf of the Senate. 2 U.S.C. § 288d;
351. 28 U.S.C. § 1365 (2006).
352. As for the House, the authority to sue has typically taken the form of a resolution. See ROSENBERG & TATELMAN, supra, at 37-39 (discussing the audiority to sue).
353. See, e.g., Marshall v. Gordon, 243 U.S. 521, 542 (1917) ("[S]uch imprisonment may not be extended beyond die session of die body in which die contempt occurred.");
354. 5 ANNALS OF CONG. 183 (1795) (statement of Rep. Milledge) ("It is admitted diat die utmost which can be done to the prisoners is confinement till the rising of die session ⋯.");
355. CUSHING, supra note 30, ¶¶ 677-78, at 267 (stating, as a default principle of parliamentary law, that a prisoner is entitled to be discharged at die end of the legislative session).
356. This same reasoning explains why the coercive confinement of a witness who refuses to cooperate with a grand jury ends with the close of the grand jury's term: "Once the grand jury ceases to function, the rationale for civil contempt vanishes ⋯." Shillitani v. United States, 384 U.S. 364, 372 (1966);
357. see also 28 U.S.C. § 1826 (providing that the imprisonment of recalcitrant witnesses shall not exceed the life of the court proceeding or the term of the grand jury).
358. CONG. GLOBE, 42d Cong., Spec. Sess. 880 (1871) (statement of Sen. Windom);
359. id. at 869 (statement of Sen. Thurman).
360. H.R. REP. NO. 41-105, at IX (1870);
361. CONG. GLOBE, 42d Cong., Spec. Sess. 924 (1871) (statement of Sen. Bayard).
362. As one senator said in an 1871 debate over the contempt power, if a contemnor can be held beyond the session, "he may be [held] for the nine months that frequently elapse between the sessions of Congress, and during that time a sentence imposed of mere imprisonment for some alleged contempt may, by the operation of such a principle, become a sentence of death itself upon him".
363. CONG. GLOBE, 42d Cong., Spec. Sess. 924 (1871) (statement of Sen. Bayard).
364. For example, in the 110th Congress, the Senate finally adjourned its first session on December 19, 2007, and the second session commenced on January 3, 2008.
365. See generally JOINT COMM. ON PRINTING, supra note 108, at 526-42 (providing session dates for all Congresses).
366. CONG. GLOBE, 42d Cong., Spec. Sess. 880-85 (1871).
367. Today, the intrasession recesses during the summer or during campaign seasons are often somewhat longer than the gaps between sessions. See generally JOINT COMM. ON PRINTING, supra note 108, at 526-42 (providing session dates for all Congresses). It seems the traditional session rule would not prevent confinement during such an intrasession recess, regardless of length. Admittedly, it is hard to know, given the paucity of modern precedents.
368. Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 231 (1821) (emphasis added).
369. Id. (emphasis added).
370. CONG. GLOBE, 42d Cong., Spec. Sess. 875 (1871);
371. see also id. at 914-15 (statement of Sen. Sherman) ("This limitation of the [duration of the contempt] power is inherent, in the nature of things, in every deliberative body⋯. [W]hen we adjourn, separate, and go to our homes, the power of the Senate, in my judgment, ceases⋯.").
372. Although the majority of authorities old and new say that confinement ends with the "session," it is not always clear what that word should mean in the context of our Congress. To begin with, although the word "session" has been used in many legislatures, that word might have a different significance in different legislatures. The period called a "session" of one body might not correspond to the annual "session" of our Congress; the better analogy might be to our two-year congressional terms.
373. See, e.g., 1 ANNALS OF CONG. 1116 (Joseph Gales ed., 1834) (reporting 1790 debate over whether adjournments between congressional sessions were analogous to prorogations that ended sessions of Parliament);
374. id. at 1078 (statement of Rep. Tucker) (discussing a dispute over the length of a "session");
375. Maclay's Diary, supra note 26, at 186 (arguing that the reasons behind British rules about sessions of Parliament have no application in this country).
376. Compounding the problem, in some instances the authorities use other terminology that is ambiguous. For example, in Anderson v. Dunn the Court stated that "the legislative body ceases to exist, on the moment of its adjournment or periodical dissolution." 19 U.S. at 231.
377. An adjournment might refer to the end of a session but could mean an intrasession break, and dissolution suggests the end of a constitutional term rather than the mere end of a session. So it is just not clear what the Court meant. All of this is just to say that the familiar statement that confinement ends with the end of the "session" conceals some complexities and potential anachronisms beneath the surface.
378. See, e.g., CONC. GLOBE, 34th Cong., 3d Sess. 430 (1857) (statement of Rep. H. Marshall) ("[T]he imprisonment may be extended to the very end of the constitutional existence of the House.");
379. id. at 405-06 (statement of Rep. Orr) ("[The House's] power to punish for any contempt ⋯ expires unquestionably when the commission of the members constituting that body expires⋯. I believe diat no one has ever held that the House has authority to go beyond the limitation of the term for which the members are elected⋯.");
380. WILLIAM HOLMES BROWN & CHARLES W. JOHNSON, HOUSE PRACTICE: A GUIDE TO THE RULES, PRECEDENTS, AND PROCEDURES OF THE HOUSE 444 (2d ed. 2003) ("[T]he jurisdiction of the House cannot extend beyond the end of a Congress". (citing Anderson, 19 U.S. at 204));
381. see also CONG. GLOBE, 39th Cong., 1st Sess. 4055 (1866) (showing members disagreeing over whether the contempt power terminates at the end of each session or at the end of each two-year term).
382. The House committee charged with investigating the contempt concluded (over dissenting views from some members) that die House could hold the contemnor, Patrick Woods, beyond the end of its session but no longer than March 4, 1871, the end of the constitutional term of that Congress. H.R. REP. NO. 41-105, at H-III (1870).
383. The full House received the committee's report and voted, on July 7, 1870, to imprison Woods for three mondis; on July 15, 1870, the session terminated. See 2 HINDS, supra note 19, §§ 1627-28 (describing the Woods case).
384. The Woods case was controversial. In a Senate contempt proceeding the next year, some senators expressed their view that the Woods confinement was illegal and without precedent. CONG. GLOBE, 42d Cong., Spec. Sess. 902-03 (1871) (statements of Sens. Sherman and Sumner).
385. Despite diat objection, die Senate voted to confine two contemnors during the intersession recess, although soon diereafter (and after some senators had left town) the Senate reversed itself and voted to release them on the last day of the current session.
386. Id. at 863-929.
387. See CONG. GLOBE, 34th Cong., 3d Sess. 405 (1857) (statement of Rep. Orr) (stating that the then-existing inherent contempt power "will be insufficient to extort testimony");
388. id. at 406 (statement of Rep. Orr) ("On the 4th of March the power of the House will end. We want additional power.").
389. Id. at 406 (statement of Rep. Orr);
390. see also ROSENBERG & TATELMAN, supra note 167, at 9 (stating that it is "an unresolved question" whether the limitations on the House's contempt power apply to the Senate, which is a "continuing body" (internal quotation marks omitted)).
391. The Senate debated the bill on January 23, 1857. The debate is recorded at CONG. GLOBE, 34th Cong., 3d Sess. 434-45 (1857).
392. Eg., CONG. GLOBE, 42d Cong., Spec. Sess. 877-78, 910 (1871) (statements of Sen. Thurman).
393. On the British parliamentary law concerning the duration of contempt, see MAY, supra note 138, at 160-61.
394. Cf. Shillitani v. United States, 384 U.S. 364, 370 (1966) ("Where contempt consists of a refusal to obey a court order to testify at any stage in judicial proceedings, the witness may be confined until compliance.");
395. Chadwick v. Janecka, 312 F.3d 597, 600, 613 (3d Cir. 2002) (rejecting habeas petition seeking release after seven years of coercive contempt confinement).
396. Supra text accompanying notes 149-54.
397. U.S. CONST, art. I, § 3, cl. 5.
398. At one time, the President Pro Tempore's tenure was understood to terminate whenever the Vice President returned; this practice generated quite a bit of debate over the course of many years and was eventually abandoned. In addition, some early authority and equivocal practice also suggested the office terminated at the end of a legislative session, though this limitation was much more quickly reversed. All in all, the office has become gradually more continuous over time.
399. See HOUSE MANUAL, supra note 10, § 313, at 150 (stating Jefferson's view that the President Pro Tempore's tenure was terminated by the Vice President's return and by intercession recess);
400. S. REP. No, 44-3, at 8 (1876) (concluding that Jefferson's view as to intersession recess was not borne out by usage);
401. 1 HAYNES, supra note 23, at 249-51 (summarizing changes in tenure over time).
402. S. REP. NO. 44-3, at 2;
403. see also 21 CONG. REC. 46 (1889) (statement of Sen. Reagan).
404. S. REP. NO. 44-3, at 8;
405. 4 CONG. REC. 311 (1876).
406. S. REP. NO. 44-3, at 8-9;
407. 4 CONG. REC. 316, 363 (1876) (statements of Sens. Edmunds and Morton).
408. The Constitution provides that "[t]he Senate shall choose ⋯ a President pro tempore, in the absence of the Vice President." U.S. CONST, art. I, § 3, cl. 5.
409. Some senators construed this to mean that the officer had a protected tenure during that entire absence.
410. 4 CONG. REC. 362-63 (1876) (statement of Sen. Wallace);
411. id. at 369-70 (statement of Sen. Thurman).
412. 4 CONG. REC. 312 (1876) (statement of Sen. Merrimon).
413. Id. at 362 (statement of Sen. Edmunds);
414. see also S. REP. No. 44-3, at 8-9 (citing the importance of a presiding officer maintaining the confidence of the legislative body, which is ensured by permitting the body to remove the officer at pleasure).
415. 4 CONG. REC. 367-68 (1876) (statements of Sens. Morton and Edmunds).
416. 4 CONG. REC. 373 (1876) (recording 34-15 vote).
417. STANDING RULES OF THE SENATE, supra note 7, R. I.I, at 1;
418. RIDDICK & FRUMIN, supra note 8, at 1021, 1024;
419. see, e.g., 153 CONG. REC. S6 (daily ed. Jan. 4, 2007) (electing Robert Byrd (D-WV) President Pro Tempore and thanking Ted Stevens (R-AK) for his service in that office).
420. See gen Jacob E. Gersen, Temporaty Legislation, 74 U. CHI. L. REv. 247 (2007) (discussing Sunset clauses and similar issues).
421. Cf Shillitani v. United States, 384 U.S. 364, 371 n.8 (1966) (observing that, although confinement for civil contempt ends with the end of the grand jury's inquiry, "the sentences of imprisonment may be continued or reimposed if the witnesses adhere to their refusal to testify before a successor grand jury").
422. Under the session rule, sometimes there would be a short gap during which the Senate would have to free the contemnor before recommitting him; under the term rule, the confinement would be effectively continuous, as one term begins the instant the prior one ends. See U.S. CONST, amend. XX, § 1 ("[T]he terms of Senators and Representatives [shall end] at noon on the 3d day of January ⋯ and the terms of their successors shall then begin.").
423. 1 HINDS, supra note 19, §§ 187, 244.
424. Supranotes 19,31.
425. Given that the President Pro Tempore is not an officer of great authority within the Senate, one might wonder whether there would be much incentive to try such stunts. Recall, though, that the President Pro Tempore is third in the line of succession to the presidency. 3 U.S.C. § 19 (2006).
426. In other words, general principles can be answerable to firm convictions about specific cases, not just the other way around. Cf. Mitchell N. Berman, Reflective Equilibrium and Constitutional Method: Lessons from John McCain and the Natural Bom Citizenship Clause (Univ. of Tex. Pub. Law & Legal Theory Research Paper Series, Paper No. 157, 2009), available at http://ssrn.com/ abstract=1458108 (discussing the role of particular cases in the selection of theories of constitutional interpretation).
427. See supra text accompanying note 4 (noting the argument that Senate subpoenas might have a longer lifespan than House subpoenas).
428. Cf. U.S. House of Representatives v. U.S. Dep't of Commerce, 11 F. Supp. 2d 76, 87-89 (D.D.C. 1998) (permitting the 105th House to prosecute a suit to prevent injury to a future House based on practical considerations, despite arguments that the House is not a continuing body)
429. appeal dismissed, 525 U.S. 316 (1999).
430. Supra text accompanying notes 73-74.
431. See, e.g.. United States v. Ballin, 144 U.S. 1, 6 (1892) ("[T]he 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.");
432. HOUSE MANUAL, supra note 10, § 508, at 267-68 ("The voice of the majority decides; for the lex majoris partis is the law of all councils, elections, &c, where not otherwise expressly provided.");
433. CUSHING, supra note 30, ¶ 414, at 168 ("[T]he law of the majority is universally admitted in all legislative assemblies; unless, in reference to particular cases, persons or circumstances, a different rule is prescribed, by some paramount authority, or is agreed upon beforehand and established by the assembly itself⋯." (footnote omitted));
434. LOCKE, supra note 98, at ch. 8, § 96 ("[T]he act of the majority [of an assembly] passes for the act of the whole, and of course determines as having by the law of nature and reason, the power of the whole.");
435. RlDDICK & FRUMIN, supra note 8, at 912 ("The Senate operates under 'a majority rule' to transact business ⋯ with the exceptions set forth in the Constitution and the rules of the Senate.").
436. As to an assembly's power to stop dilatory debate under parliamentary law, see, for example, HOUSE MANUAL, supra note 10, § 359, at 176, §§ 365-66, at 182-83;
437. 5 HINDS, supra note 19, §§ 5450-5455;
438. NAT'L CONFERENCE OF STATE LEGISLATURES, supra note 30, § 131;
439. Paul Mason, The Legal Side of Parliamentary Procedure, in READINGS IN PARLIAMENTARY PROCEDURE 42, 51-52 (Haig A. Bosmajian ed., 1968).
440. I believe that the proposition just stated is the prevailing view and the correct view, but I acknowledge that there is some authority to the contrary. See sources cited at 99 CONG. REC. 168 (1953) (asserting that majority cannot close debate as a matter of general parliamentary law).
441. I do not mean here to require the Senate to follow the deadi-knell view of rules that prevails in the House of Representatives. At least as a practical matter, there does not seem to be much of a problem with the Senate's rules (or even the House's rules, for that matter) merely carrying over as a default, so long as they are readily defeasible by a majority. See supra notes 19, 31 (discussing legislative bodies with merely continuous rules).
442. In other words, we do not necessarily have to accept die view that the Senate operates solely under general parliamentary law at the start of a Congress. It could instead operate under its old rules, shorn of those rules' supermajority requirement for cloture. Some basic rules from somewhere have to exist at the start of a new Congress in order to avoid bootstrapping and infinite regress problems. The key is just that the Senate's choice of rules-whether to adopt new ones or just continue under the old ones-must be majoritarian.
443. See LEVINSON, supra note 97, at 49-62 (deeming the Senate "illegitimate" for this reason);
444. cf. Lynn A. Baker & Samuel H. Dinkin, The Senate: An Institution Whose Time Has Gone?, 13 J.L. & POL. 21, 55-68 (1997) (arguing for reform in which the Senate is apportioned according to population but would use supermajority voting).
445. See LEVINSON, supra note 97, at 53 ('"Majority rule' within the Senate may have only a random relationship to majority rule within the country as a whole.");
446. Ben Eidelson, Let the Majority Rule, SLATE, Feb. 8, 2010, http://www.slate.com/id/2244060 (analyzing data showing that the filibuster sometimes compensates for the Senate's malapportionment).
447. This is the point of the theory of die second best, i.e. when one condition for optimality is not satisfied, die second-best outcome does not necessarily result from setting the odier conditions at their optimal value. R.G. Iipsey & Kelvin Lancaster, The General Theory of the Second Best, 24 REV. ECON. STUD. 11,17-18 (1956).
448. See Seitz & Guerra, supra note 88, at 25-27 (distinguishing entrenched rules from entrenched legislation);
449. see also Gerhardt, supra note 14, at 448, 474 (describing normative value of ground rules protected by supermajority requirements).
450. There are various ways that one might try to ensure diat any decision that fundamentally changes the Senate rules is done in a more principled and less opportunistically partisan way, such as by delaying the effective date of any such change. See generally Adrian Vermeule, Veil of Ignorance Rules in Constitutional Law, 111 YALE LJ. 399, 419-24 (2001) (discussing delay as a strategy for creating uncertainty over who will benefit from a change in rules).
451. See supra note 145 and accompanying text (listing several procedural rules set forth in the Constitution itself).
452. See supra notes 71-72 and accompanying text (discussing barriers to judicial resolution of internal legislative disputes);
453. see also Adrian Vermeule, The Force of Majority Rule 11 (Harvard Pub. Law Working Paper No. 08-48, 2008) ("[MJajority rule has a political and psychological force independent of its merits."), available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id=1280201.
454. See generally ROBERT KEITH & BILL HENIFF, JR., CONG. RESEARCH SERV., THE BUDGET RECONCILIATION PROCESS: HOUSE AND SENATE PROCEDURES (2005) (describing the reconciliation process).
455. See Carl Hulse, Congressional Memo;
456. A Fight for the Right to Filibuster, N.Y. TIMES, Mar. 29, 2009, at A17;
457. Shailagh Murray, Divisive Legislative Tool Gaining Democrats' Favor;
458. Health-care Reconciliation May Be Option, WASH. POST, Apr. 1, 2009, at A3.
459. Ultimately, part of the health care reform was enacted dirough reconciliation. Carl Hulse, A Fail-Safe Works for Legislation, but Not as Expected, N.Y. TIMES, Mar. 29, 2010, at A25.
460. HOUSE MANUAL, supra note 10, § 60, at 26-27 (emphasis added);
461. see also id. ("Before the adoption of rules the House is governed by general parliamentary law, but Speakers have been inclined to give weight to the rules and precedents of the House in modifying the usual constructions of that law.");
462. 5 HINDS, supra note 19, §§ 6761-6763;
463. cf. 53 CONG. REC. 3732 (1916) (statement of the President Pro Tempore) ("[Jefferson's Manual] has a certain degree of influence, but is not a direct authority [in the Senate].").
464. THE FEDERALIST NO. 62 (probablyJames Madison), supra note 106, at 378 (stating that "[an] additional impediment ⋯ against improper acts of legislation" is that "[n]o law or resolution can now be passed without the concurrence, first, of a majority of the people, and then, of a majority of the States").
465. E.g., id. No. 58 (James Madison), at 361 (calling majority voting "the fundamental principle of free government");
466. id. No. 22 (Alexander Hamilton), at 147-48 (condemning minority vetoes).
467. See supra text accompanying notes 24-66 (discussing the gradual development of the Senate's supermajoritarian character).
468. Eg., 103 CONG. REC. 158 (1957) (statement of Sen. Russell) (contending that changing the rules by a majority "is without doubt unconstitutional");
469. 99 CONG. REC. 108 (1953) (statement of Sen. Taft) ("This is a constitutional question!;] ⋯ it is a question of whether the Senate is a continuing body.");
470. id. at 115 (statement of Sen. Russell) ("[Changing the rules] has to be done by the method prescribed by law⋯. I shall await with interest any precedent that can be cited ⋯ to demonstrate that [the principle that the Senate is a continuing body] has ever been challenged seriously in the Senate.");
471. see also Catherine Fisk & Erwin Chemerinsky, In Defense of Filibustering Judicial Nominations, 26 CARDOZO L. REV. 331, 348 (2005) (calling the majoritarian "nuclear option" "illegitimate");
472. Gerhardt, supra note 14, at 445 n.* (tentatively suggesting that the majoritarian "nuclear option" is "illegal").
473. See, e.g., Paul Kane, Harkin and Shaheen Seek To Change Senate Filibuster Rule; Reid Dismisses Effort, WASH. POST, Feb. 12, 2010, http://www. washingtonpost.com/wp-dyn/content/ article/2010/02/ll/AR2010021104880.html (reporting comments of Senate Majority Leader Harry Reid dismissing attempts to reform filibuster rule).
474. Consider this news item on Senate Democrats' failure in 2007 to pass a deadline for withdrawal from Iraq: Senate leaders are likely to move a defense measure on the week of [September] 17th that essentially calls for a withdrawal to begin later this year, but drops language that would require completion by April 30, 2008. "We are not backing off anything," Senate Majority Leader Harry Reid told reporters today, while adding in die next breath that "we need 60 votes" ⋯. Mark Murray, Democratic Retreat on Iraqi? MSNBC, Sept. 6, 2007, http://firstread.msnbc.msn. com/archive/2007/09/06/ 347918.aspx.
475. Cf. BARBARA SINCLAIR, THE TRANSFORMATION OF THE U.S. SENATE 90, 140 (1989) (explaining that changes in die political landscape have increased senators' incentives to engage in filibustering and other individualistic behavior).