September 03, 2009

"Burying the Continuing Body Theory of the Senate"

Aaron-Andrew Bruhl has posted this draft on SSRN. Here is the abstract:

    In the United States Senate, only a third of the members stand for election every two years, with two thirds of them carrying over from one congressional term to the next. In this regard the Senate differs from the House of Representatives, where all members stand for election every two-year cycle. That much is familiar, but what legal consequences flow from this structural difference? According to some legislators, courts, and commentators, this difference is very important in that it makes the Senate, but not the House, a "continuing body." The continuing body idea is invoked to defend highly controversial aspects of Senate practice. By far the most familiar context in which the idea arises - and the one most likely to generate significant conflict - is the debate over the constitutionality of the filibuster. Under the current Senate rules, it is extremely difficult to restrict or eliminate filibusters, because any attempt to amend the Senate rules can itself be filibustered. Further, precisely because the Senate is considered a continuing body, these nearly unamendable Senate rules never expire but instead remain in effect indefinitely. As a result, the Senate's supermajoritarian rules are entrenched against future majoritarian change. The continuing body idea is thus used to justify an outcome that would otherwise seem to conflict with the usual principle that current legislative majorities are not bound by their predecessors' decisions.

    The basic thesis of this Article is that the continuing body notion, though frequently invoked, cannot withstand scrutiny. I offer several arguments in support of that thesis. The arguments question the premises of the continuing body idea, attack its supposed conclusions, and demonstrate that, if taken seriously, the continuing body idea has consequences that few of us would accept. If these arguments succeed, then the most immediate consequence would be the loss of the primary contention in favor of entrenched Senate rules, but there would be other implications for legislative practice as well.

Posted by Rick Hasen at September 3, 2009 10:08 PM