Burying the “Continuing Body” Theory of the Senate

• Author: Aaron–Andrew P. Bruhl
• Position: Assistant Professor, University of Houston Law Center
• Pages: 1401-1465

Aaron–Andrew P. Bruhl. Assistant Professor, University of Houston Law Center. For helpful comments on previous versions, I thank Richard Albert, Ittai Bar-Siman-Tov, Josh Chafetz, Robert Dove, David Dow, Matthew Green, Stephen Huber, Michael Stern, Seth Barrett Tillman, Stephen Vladeck, Howard Wasserman, and audiences at the Southeastern Association of Law Schools Annual Meeting, the University of Houston Law Center, and the University of Texas School of Law (where Mitch Berman was especially generous with comments). Needless to say, the foregoing readers do not necessarily agree with my conclusions, and the responsibility for any errors or misjudgments lies with me. I gratefully acknowledge funding from the University of Houston Law Foundation. I thank Omid Bachari, Niles Illich, and Jerad Najvar for research assistance.

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I Introduction

How long does a legislative body live? Indefinitely, such that today’s Congress is the same entity as the 1789 Congress? Or only until the next election, such that every term brings with it not just some new legislators but a new legislature as well?

These questions might seem unduly abstract, but in fact they can have important practical consequences. For example, in a recent dispute over whether presidential advisors had to comply with subpoenas issued by the House of Representatives, a federal court of appeals suggested that the case might become moot when the two-year term of Congress ended.¹ “At that time,” the court said, “the 110th House of Representatives will cease to exist as a legal entity, and the subpoenas it has issued will expire.”² The court saw the House as a temporally limited creature, one that “dies” every two years.

Would the court have seen things differently if the Senate had sued? Perhaps surprisingly, the answer might well be yes. Unlike the House, where all members are up for election every two years, the Senate sees only one-third of its members stand for election each cycle.³ For this reason, it is often said that the Senate, unlike the House, is a “continuing body,” such that its subpoenas might have a longer lifespan.⁴

Disputes over the lifespan of congressional subpoenas provide just one example of the influence of the continuing-body notion. The most familiar context in which this idea arises—and the one that seems most likely to generate major conflict—is the debate over the legality of the filibuster, the device by which a Senate minority can extend debate indefinitely and thus prevent a vote on a measure the majority wishes to enact. The filibuster has long been controversial, of course. During President George W. Bush’s term, Republican anger over Senate Democrats’ filibuster of some judicial nominees brought the Senate to the brink of parliamentary war, complete with threats of a “nuclear option” for changing the rules.⁵ Today, with thePage 1405 partisan roles reversed, dissatisfaction over minority obstruction is again creating pressure for reform.⁶

The continuing-body idea plays a pivotal role in the filibuster debate. It enters the discourse in the following way:

Q: Why can a Senate minority filibuster?

A: Because the Senate rules permit it. The rules provide that ending debate (i.e., invoking “cloture”) on a bill or a nomination requires sixty votes, not just a majority.⁷ So a minority of the chamber can effectively block action.

Q: Why can’t the Senate majority, if it wishes, change the cloture rule, so that debate is easier to cut off? To be sure, senators might hesitate before changing the rules, as they might be unsure whether doing so is the right course as a matter of policy or prudence. Nonetheless, the Senate rules can be changed by a majority, correct?

A: It is true that an actual vote to amend the Senate rules requires only a majority to succeed.⁸ But getting the Senate to hold a vote is difficult because the attempt to change the rules, including the cloture rule, can itself be filibustered. Under the current Senate rules, ending debate on a motion to amend the rules requires the assent of two-thirds of those present and voting.⁹

Q: I see. The existing rules are hard to change, so long as they are in force. What about when the Senate adopts new rules at the beginning of the next two-year Congress—couldn’t it adopt more majoritarian rules that restrict or prohibit filibusters then?

A: But the Senate, unlike the House of Representatives, does not adopt new rules at the beginning of each Congress.¹⁰

Q: Why not?

A: Because Rule V of the Senate rules provides that the rules “shall continue from one Congress to the next Congress unless they are changed as provided in these rules.”¹¹ Remember, the rulesPage 1406 provide that changing the rules requires, practically speaking, the consent of two-thirds.

Q: That is sheer bootstrapping! The Senate rules cannot be the source of their own authority. If Rule V lacks any force in the new Congress, then it cannot purport to make itself and the other rules carry over. And Rule V does lack force in the new Congress, because one Senate cannot purport to bind future Senates. Entrenchment is not allowed.¹² The House of Representatives certainly recognizes that it lacks the power to bind its successors to follow the rules of the previous House.¹³

A: Now we’ve come to the heart of the matter. There are no “past Senates” and “future Senates.” There is just one Senate running in an unbroken thread for over two hundred years. The Senate can continue its internal rules indefinitely because it, unlike the House, is a continuing body. The terms of two-thirds of the senators carry over from one Congress to the next. The House expires every two years, but the Senate does not. The Senate is a continuing body with continuing rules.

In short, the continuing-body theory of the Senate holds (1) that the Senate is continuous in a way that the House is not, and (2) that this continuity has important consequences for Senate practice, especially concerning Senate rules. The continuing-body theory is probably regarded as the most powerful constitutional consideration in favor of the permissibility of entrenched Senate rules; it has been invoked many times in the past when filibusters were challenged and is still employed in contemporary debates.¹⁴

The striking feature of the argument is the way it uses a seemingly bland structural fact about the Senate—that only a minority of its members stand for election every two years—to generate the powerful conclusion that thePage 1407 Senate’s rules can violate what are often regarded as foundational principles of majority rule and non-entrenchment. Among the respected senators, parliamentarians, and academic experts who rely on the continuing-body idea, the argument proceeds almost automatically, as if the logical connection between the Senate’s structure and this startling consequence were natural and completely clear.¹⁵ Seeming to concede that something important would follow from the view that the Senate is continuous, those on the other side of debates over Senate procedure often find themselves denying that the Senate is a continuing body.¹⁶

This discourse would benefit if we could take a step back and ask what we are really talking about. To be sure, we often speak of entities existing over time despite changes, so we cannot dismiss the notion of Senate continuity as sheer nonsense. Nonetheless, although the concept of Senate continuity is frequently deployed, often to great showstopping effect, one fears that a metaphor has substituted itself for careful thinking. What does it mean to say the Senate is a continuing body and the House is not? In what sense is the Senate continuous—just in that senators have overlapping terms of office, or is there something more to it than that? Even more importantly, why does that structural feature matter for purposes of the rules? We can call the Senate a continuing body if we like, but labeling it so does not explain why anything follows from the facts about the Senate’s structure.

This Article is an effort to critically engage the notion that the Senate is a continuing body. Its conclusion is that the continuing-body idea obscures more than it reveals and that the arguments that attempt to use the Senate’sPage 1408 structure to justify the Senate’s handling of its rules are mostly untenable. More specifically, the Article proceeds as follows:

Part II presents some background on the history of the Senate’s rules and the different legal arguments for and against their continuous character...