More information in response to Standard Mischief‘s questions. The American Enterprise Institute’s Norm Ornstein:
Any veteran observer of Congress is used to the rampant hypocrisy over the use of parliamentary procedures that shifts totally from one side to the other as a majority moves to minority status, and vice versa. But I can’t recall a level of feigned indignation nearly as great as what we are seeing now from congressional Republicans and their acolytes at the Wall Street Journal, and on blogs, talk radio, and cable news. It reached a ridiculous level of misinformation and disinformation over the use of reconciliation, and now threatens to top that level over the projected use of a self-executing rule by House Speaker Nancy Pelosi. In the last Congress that Republicans controlled, from 2005 to 2006, Rules Committee Chairman David Dreier used the self-executing rule more than 35 times, and was no stranger to the concept of “deem and pass.” That strategy, then decried by the House Democrats who are now using it, and now being called unconstitutional by WSJ editorialists, was defended by House Republicans in court (and upheld). Dreier used it for a $40 billion deficit reduction package so that his fellow GOPers could avoid an embarrassing vote on immigration. I don’t like self-executing rules by either party—I prefer the “regular order”—so I am not going to say this is a great idea by the Democrats. But even so—is there no shame anymore?
Note that it apparently survived a court challenge, when the GOP successfully defended it.
leanleft
Kevin
tgirsch
Kevin T. Keith
Judd
The fact it’s been done a lot in the past and been done by both parties doesn’t change the fact that might be unconstitutional.
Self-executing rules were upheld once by an appelate court when the Republicans used it to raise the debt limit and they were sued (by Louise Slaughter, I believe). Seeing as how a debt limit hike is more or less a perfunctory thing the court opted not to step in it. This being a slightly larger issue there’s at least a chance it could warrant some serious attention from the judicial system. The Landmark Legal Foundation seems willing to try anyway.
Sure, it could be found unconstitutional. Especially given our current activist Supreme Court. But Republican complaints that it’s unprecedented ring hollow.
(It would be interesting to see, if it were found to be unconstitutional, what the impact would be on laws already passed by that mechanism.)
The fact it’s been done a lot in the past and been done by both parties doesn’t change the fact that [it] might be unconstitutional.
Well, actually, no.
Courts really do care about the effects of laws in determining what they mean. The fact that both parties have operated on the theory that the meta-rules allow certain rules, pretty much means that the meta-rules do allow it. It’s the same principle as stare decisis.
Sure, they could still overturn something that was flagrantly against the Constitution, but well, it ain’t.
Sure, it could be found unconstitutional. Especially given our current activist Supreme Court.
As you pointed out in that previous thread, all the current activist judges on SCotUS love sweeping powers, which this falls under.
(OT: I just finishing reading Roe v. Wade, finally!)
Dan M:
Under your apparent theory of the meaning of Art. I Sec. 5, the House could simply establish a rule that required less than a majority to pass a bill.
And Judd is correct. Past actions do not change the constitutionality of the act. However, you correctly point out that the doctrine of stare decisis considers the degree to which something is longstanding or well-accepted – not for determining its constitutionality but for determining whether the court will overturn it.
Finally, “judicial activism” is generally not defined the same way among those on the left and right. Conservatives typically understand judicial activism to be judicial lawmaking – creating new law or changing existing law. If a court strikes down an act of a legislature on the grounds that the act violated the Constitution, many conservatives do not consider that activism. But, judicial activism can also be understood to be when the court strikes down any law. In short, there is no commonly understood definition, or, to the extent there is, the definition often morphs in response to the circumstances and the speaker. (As an aside, Justice Scalia is probably the justice least likely to strike down a legislative act, regardless of whether the act is liberal or conservative.)
matt:
I would argue that another form of judicial activism is disregarding long-standing precedent. But more importantly, what made Citizens United an activist ruling wasn’t just that it overturned long-standing precedent, but rather the fact that the court decided to rule on broader issues than what had been brought before it. There’s a very long tradition of ruling as narrowly as possible — only rule on the issues directly before the court — and the current SCOTUS abandoned that tradition in this case.
I also disagree with your assessment of Scalia. I don’t think he’d hesitate to strike down an act he doesn’t like.
Also, I think Dan M‘s reading of Art. I, Sec. 5, is correct, and that your suggestion, though it was intended to be absurd, is also correct. Look at section 7: at no point does it stipulate that a majority is needed for passage. The only ratio that’s explicitly stipulated is that a two-thirds majority is needed to override a presidential veto. But they never say that a simple majority is needed to pass the legislation in the first place; they say (in section 5) that each chamber can make the rules of its proceedings. Thus, for the same reason that it’s not unconstitutional for 41 senators to block legislation (and in the past, it only took 34 senators to block), or for one senator to hold up the chamber entirely (see Bunning, Jim), there’s no explicit constitutional clause stating that bills may only pass either chamber by a majority.
Now, I can’t imagine that lawmakers would ever actually make such a rule, but there’s no constitutional prohibition on them doing so.
(In fact, it’s already possible for the House to pass legislation with less than a majority — by their rules, legislation is passed if they have a quorum, and the majority of representatives present vote to pass it. So you already can have circumstances in which legislation passes the House with fewer than 218 votes, i.e., less than a majority of elected representatives.)
T:
I worry we’re getting far afield, but what longstanding precedent did Citizens United overturn? I haven’t yet read the decision, but the first page of the majority opinion states the Court was overturning precedence going back to 1990 – hardly longstanding. Now, it may be that by implication other precedent was overturned, but you’re going to have to set out what precedent that was and how it was overturned. You need to do the same thing with your assertion that the decision addressed matters not before it. A decision may be broad and sweeping while only narrowly addressing the issue presented. I would argue that a broad, bright line rule that applies the relevant law is far better than a narrow rule that attempts to confine itself only to the very specific circumstances of a particular case. The latter approach simply creates uncertainty.
Next, your argument considering a quorum doesn’t support your larger point. Whatever the quorum, the bill must still pass with a majority of that quorum voting in favor of it. The provision permitting a quorum is merely a means of ensuring that the voluntary absence of a number of Congressman can’t act as a de facto filibuster.
Finally, I think Dan M’s argument is without merit. The common meaning of “pass” in a legislative context is that a majority of the members present have voted in favor of whatever bill or resolution is pending. Deeming the Senate bill to have passed is the same thing as telling the Senate and president to “act as if we voted on and passed the Senate bill.” It is not a vote on the bill, and it most certainly is not passage of the bill.
matt:
Regarding the enacting of legislation, my point stands: nowhere does the constitution explicitly stipulate that a majority vote of the members must occur for a chamber to consider a bill passed in that chamber. All it says is that one-half plus one of the total members must be present in order for business to be conducted. In the house, that means 218 members present. So you could technically pass a bill through the house, tomorrow, with 110 “yea” votes. Out of 435 representatives.
As for Citizens United, even 20 years seems like a pretty long time, legislatively speaking. But Congress has been regulating corporate political spending since at least the Tillman Act of 1907. Is 103 years a long enough time for you?
More importantly, the first time the Court heard the case, it sent the litigants away with instructions to come back later, prepared to re-argue the case on broader terms than either side originally was arguing. In other words, instead of merely ruling on the case before it, the Court was actively looking to address broader issues. That’s pretty clearly activist by most definitions of that term.
T:
Even in the example of a quorum that you cite, a particular bill is still only passed with a majority vote of the members present. The implication of your argument is that “passed” doesn’t mean what it is commonly understood to mean in a legislative setting, and that the House could make a rule (with a minority vote) that that particular minority could pass legislation without obtaining a majority vote (or without even voting on the particular legislation).
Re: Citizens United , first a minor point of clarification: “precedence” in a legal setting commonly refers to prior court decisions, not prior legislation. Second, 20 years may or may not be a long time. In many respects, that’s relative. With McCain-Feingold, there have been numerous challenges to the law over the course of those 20 years. There has never been a great deal of certainty (one of the factors in stare decisis ) as to which components of that law would survive scrutiny. But, I’ll admit I’m no fan of stare decisis . That doctrine would have counseled against overturning the Dred Scott and Plessy v. Ferguson decisions. A reliance on longstanding legislation would have weighed heavily against the Supreme Court’s decision in Lawrence v. Kansas . If a prior decision was wrongly decided under the Constitution, then it should be corrected.
Finally, turning to your assertion re: the Court “looking to address broader issues” in Citizens United , the WaPo article you cited and linked to indicated that Citizens United had made a broader appeal to overturn Austin and another more recent case. According to the article, quoted from below, the Court concluded neither side had adequately briefed the question of whether the prior decisions should be overturned. At least on the basis of the representations in the article you cited, the Court didn’t broaden the issue considered, it simply asked for more information.
“Citizens United’s attorney, former solicitor general Theodore B. Olson, had told the court that it should use the case to overturn the corporate spending ban the court recognized in Austin v. Michigan Chamber of Commerce, as well as its decision in 2003 to uphold McCain-Feingold as constitutional.
“But the court apparently decided it could not make such decisions without specific briefings on what would be a bold move.”
Regarding the passage of bills, according to the House’s current rules, yes, a majority of members present must vote “yea” to pass something. What I’m saying, however, is there’s nothing in the Constitution that prevents them from setting up a rule that says 40% is all that’s needed. If there is, please point out where it is. They never would do such a thing, but there’s nothing that says that they can’t.
On the respecting of long-standing precedent, you’re right that it should not be universally respected, and that egregiously bad rulings ought to be overturned. So one’s view on Citizens United is going to be determined by what they thought of the underlying precedents. If you believe that corporations should be afforded all of the same privileges and immunities as individuals while not having any of the same responsibilities or accountability, then you’re going to love what the court did. Ditto if you believe that money is the same thing as speech. If, on the other thing, you think those ideas are bat-shit insane, you’re going to have a decidedly different view on what the court just did.
Anyway, there’s legal precedent and judicial precedent. The legal precedent for restricting the role of corporations goes back to the early 1900s, and the judicial precedent goes back at least to the mid-1970s.
What I find interesting in discussions of judicial activism, however, is that people who tend to complain the most about it tend to be self-described judicial conservatives, and usually originalists, whose favorite justice is usually Scalia. The problem here, of course, is that Brown v. Board of Education, widely considered one of the best and most important rulings in the modern era, was not only an activist ruling, it was wrongly decided on originalist grounds.
Finally, whether a litigant asks the court to look at a broader issue is irrelevant. The only thing that’s relevant is whether or not the issue in question is actually the one before the court. In the case of Citizens United, it was not. A narrower statute was actually in dispute, and that’s what was argued before the various lower courts as the case worked its way up through the appeals process. At the time, there were several news reports indicating that this was “highly unusual.”