Legal Commentary

As I had hoped way back in September, it looks like the Senate Parliamentarian, Alan Frumin, is going to a major player in the health care debate. Frumin has ruled that the House must pass the Senate's version of health care before the Senate use the budget reconciliation process -- aka 51 votes -- to pass changes in the health care bill demanded by the House. I have nothing to say about the merits of Frumin's ruling. (If you are interested in the arcana of budget reconciliation and the "Byrd Rule," you can read the relevant CRS report). Instead, I want merely to note that Frumin's ruling once more illustrates that congressional procedure is one of the very few areas in which principled (small-c) constitutional law truly trumps politics.

After the jump, I explain why congressional procedure is real con law, not the phoney version purveyed by the United States Supreme Court. Unlike the capricious whimsy of Supreme Court precedents that cycle endlessly according to the fancies of warring factions of justices, congressional rules stand like the Rock of Gibralter, held in place only by each side's fears of mutually assured destruction from the chaos of ever-cycling majorities. It is precisely because their motive is fear rather than the more august-sounding desire to be principled and coherent that the members of Congress actually behave in a legally principled way, foregoing immediate political advantage to stick with the austere formal legalisms imposed by nerds like Alan Frumin.

1. First, how are congressional procedures entrenched? They are remarkably stable: Rule XXII requiring 60 votes for cloture, for instance, was enacted by the Senate in 1917. How many important SCOTUS precedents have lasted so long? One might think that rules are held in place by super-majority requirements like Rule XXII's provision requiring that rules changes require a 2/3 majority. Such a view would, however, be mistaken: It is a standard chestnut of voting theory, nicely analyzed by Peter Suber here), that no rule can declare the conditions of its own amendment. As Speaker Thomas Reed noted back in 1890 when he began his famous re-vamp of House rules, "the assembly cannot deprive itself of the power to direct its method of doing business. It is like a man promising himself that he will not change his own mind." If Senate Democrats wanted to do so, they could amend Rule XXII's 2/3 requirement for rules amendments with 51 votes tomorrow, using general parliamentary procedure to govern debate. (For an erudite history of debates about the "constitutional option" for changing congressional rules, see this article by Martin Gold and Dimple Gupta).

So what keeps the Senate rule in place? I submit that the remarkable stability of the rules is induced by the sheer terror of the members that frequent debates about procedure would cause each House to descend into a state of nature, where endless infighting about process would doom everyone's agenda. As Senator Warren Harding observed in 1917, the Senate would "enter into a state of chaos" if it attempted to re-invent Senate rules anew each session.

Congress has internalized the "settlement function" of constitutional law described by Fred Schauer and Larry Alexander: The members know that endless bickering about process would put an end to decision-making of any sort, Left or Right. I would urge that it is this internalization of the settlement function rather than any principled desire to write a coherent legal narrative or other high-falutin theory of constitutional principle that induces stability.

2. I would also suggest that fear of chaos keeps Congress from politicizing the Parliamentarians' job. Newt Gingrich actually retained Charles Johnson, the Democrats' Parliamentarian when the Republicans took over the House in 1995. Robert Byrd sacked the Republican's Parliamentarian, Robert Dove, in 1987, installing Alan Frumin in Byrd's place. But and Trent Lott gave Robert Dove the sack because of his rulings in 2001, but this lapse into politics likely had little effect on the Parliamentarian's decisions, because the Republican Senate simply re-installed Frumin -- the Democrats' choice of Parliamentarian back in 1987 -- in place of Dove. (Dove now enjoys the quiet life of a law professor).

Can one imagine a Republican Senate, dissatisfied with Justice Stevens' rulings, replacing him with a Democratic favorite like, say, Stephen Breyer? Of course not: The Senate treats the SCOTUS as an essentially political body the personnel of which should be governed by immediate political self-interest. But the Parliamentarian, unlike SCOTUS, is a job too serious to be politicized even by an intense partisan like Lott.

I suspect that the Democrats will adopt a similar attitude towards Alan Frumin, despite his ruling that seriously endangers their health bill. On issues peripheral to the governance of this republic like the Second Amendment or abortion, politicians can afford to grandstand to their respective interest groups. (Memo to Self: Prepare Defensive posture on the essentially marginal importance of most constitutional issues that rile both the Federalist Society and the American Constitution Society by re-reading Fred Schauer's argument to this effect). On the critical issue of the self-government of Congress itself, an issue on which hangs everything from health care to national defense, the politicians are principled constitutional decision-makers.