Let’s start with what exactly the milk precedent is. As noted by former Senate Parliamentarian Alan Frumin in a recent CNN article, we are not talking about a formal rule of the Senate. The milk precedent is just that – a precedent. It is recorded in “Riddick’s Senate Procedure” – the closest thing the Senate has to a body of common law precedents and binding interpretations of Senate rules. Riddick’s chapter on “Debate” has 75 pages of precedents, containing sections on everything from “adjourn” at the beginning to ‘yielding” at the end. And there in the middle is the odd section entitled “Milk While Speaking”.
“Milk While Speaking” contains but one precedent: the 1966 instance where Everett Dirksen asked if he could have a glass of milk brought to him during his speech. The precedent itself is but thirteen words: “Senate rules do not prohibit a Senator from sipping milk during his speech.” The proceeding in the Congressional Record is short enough to be quoted in full:
DIRKSEN: Mr. President, I must suspend for a moment to propound a parliamentary inquiry.
The PRESIDING OFFICER. The Senator will state it.
DIRKSEN. Is it in violation of the Senate rules if the Senator from Illinois asks one of the page boys to go to the restaurant and bring him a glass of milk? If it is in violation of the rules I will forget it.
The PRESIDING OFFICER. There is nothing in the rules to prohibit the Senator from requesting a glass of milk.
DIRKSEN. I thank the Chair, because water becomes pretty thin after a period of time. My lunch today will be a tall glass of milk.
From this brief exchange, the Senate constructed a formal precedent about drinking milk on the Senate floor and inscribed it in its rulebook. However, there is absolutely no good reason for it to have done so. In fact, by doing so the Senate makes a mockery of rules, precedents and proper parliamentary jurisprudence.
If we look at what Dirksen was doing from a perspective of basic common sense, we can see what he was not in fact asking for an interpretation of Senate rules. The Senate had long allowed Members to have water during debate, which is perfectly reasonable – Senators make long speeches, sometimes they get thirsty. But there is no water precedent, no “Water While Speaking” section in Riddick’s, no formal rule specifically permitting water. It’s just one of those unwritten things that needs no formal sanction – no different than allowing Senators to wear eyeglasses or use a handkerchief. Fundamentally, you do not need rules about these sorts of things.
So arguably Dirksen didn’t need to do anything to have his milk brought to him. He could have made his request to his page boy and left it at that. Perhaps another Senator, aghast at Dirksen drinking milk rather than water, could have objected and maybe tried to get the presiding officer to issue an anti-milk interpretation of the debate rules. But let’s be realistic: no one was going to do that. Dirksen’s inquiry was completely unnecessary.
But let’s assume for the sake of argument that Dirksen was concerned that he was opening a door to other violations of the debate rules. If he surreptitiously violated the unwritten water rule, perhaps other Senators would ask for lemonade, soda, beer, whiskey, etc. and all hell would break loose. Perhaps he wanted some sort of understanding that this was to be a limited exception and not a permanent change in the Senate’s practice on what activity is permitted on the floor of the Senate.
That’s a reasonable position. If that were the case, however, then functionally what Dirksen wanted was not a formal interpretation of Senate rules but rather permission to offer a unanimous-consent request. What he wanted was a temporary exemption, which the Senate, in its wisdom, is more than capable of granting. Legislative bodies do this all the time. The Senate conducts a lot of formal business through unanimous-consent agreements that operate outside the regular rules. If all Senators are in agreement that some action (perhaps not otherwise allowed) be done, then they can decide, unanimously, to permit it. Such requests are especially useful in handling these kinds of minor, picayune matters such as what types of beverages are allowed on the Senate floor. Surely Dirksen could have asked UC to drink his milk, and no one in the chamber would have objected.
Importantly, a unanimous-consent request changes no rule and establishes no precedent. It is by definition a limited exemption from the regular rules, permitted by the universal agreement of all Senators to address a specific situation. If another Senator wanted to offer a UC request to drink lemonade, the fact that the Senate had, by UC, allowed the drinking of milk would have no bearing on that issue. There is no requirement that the Senate agree to any UC request, even ones similar (or even identical) to previous requests. That’s the nature of UC requests – they are one-offs. Each one is unique, and each one can be objected to when it is offered. Dirksen could have been allowed to drink milk one day, and denied the ability to do so the next. It’s all up to the Senate, on a case-by-case basis.
But as we know, Dirksen didn’t ask for the indulgence of all Senators to drink his milk. Instead, as a formal matter, he inquired of the presiding officer whether there was any rule against him drinking milk. And the presiding officer correctly stated that there was no such rule. So the question becomes: what are we to make of the presiding officer’s statement?
Was the presiding officer actually making an interpretation of the Senate’s debate rules? I assert that he was not. He was noting a lack of any prohibition – the absence of a rule. As noted, there is no formal water rule or water precedent. Nowhere in the Senate rules does it say, “Senators may only drink water during debate.” Nor is there a rule that says, “Innocuous beverages may be consumed on the Senate floor” – which might give rise to the question of which beverages are considered innocuous and which aren’t. A vague rule like that might very well need some interpretation, and perhaps precedents established clarifying that “innocuous beverages” means “non-alcoholic beverages” or “water only” or “water and milk” or whatever the Senate thinks is reasonable. But there are no such ambiguous beverage rules that need interpreting by Senate parliamentarians and presiding officers. There is simply the absence of a rule.
If the presiding officer of a parliamentary body states for the record that the body does not have a rule prohibiting some action, has that presiding officer created a binding precedent regarding that action? Absolutely not. She has merely made a statement about what is not in the rules. And the set of things “not in the rules” is literally infinite. Imagine if Dirksen had asked whether there was a rule against moving his desk two inches to the left. The presiding officer would have had to respond that no, there was no such rule. Does it make sense for Mr. Riddick to jump in and write in the Senate rulebook, “Based on this example, Senators are permitted to move their desks two inches to the left.”? Of course not. You could fill up Riddick’s Procedure with all sorts of things based on the fact that there is no explicit prohibition against whatever nonsense you want to put in there. Are there specific Senate rules against wearing green coats, or hopping on one leg, or keeping live hamsters in your pockets? If Senators made parliamentary inquiries about the lack of such rules, would we have to fill Riddick’s debate chapter with entries on green coats and hopping and hamsters? It’s lunacy to think that we would.
Let’s take a look at another pernicious aspect of this kind of Senatorial jurisprudence: negative implications. In the milk precedent, the presiding officer states that there is no prohibition against drinking milk. Does this imply that there is a prohibition against drinking other things? There is no way to tell. A very precise question was asked of the presiding officer, and a very precise answer was given. The precedent is only about milk – it is silent with respect to other beverages. And yet, observe how this precedent has been applied. Senators today treat this section of Riddick’s as if it read: “Milk, and only milk, is allowed on the Senate floor.” The Senate has made the wholly illogical leap from “There is no rule prohibiting the drinking of milk” to “The rules prohibit the drinking of anything other than milk.” It’s madness!
The senselessness of this interpretation is obvious even under the tortured parliamentary jurisprudence that got us here in the first place. If a Senator were to stand up and ask the presiding officer if there were any rule prohibiting her from drinking a glass of white wine at her desk, the presiding officer would have to correctly state that there was no such prohibition in the rules. As we’ve seen, there was nothing stopping Dirksen from having his milk. Therefore, by the same token, there is nothing stopping any Senator from requesting any beverage. No formal prohibition exists. Rather than creating a very limited milk precedent, Dirksen in fact demonstrated that the Senate’s debate rules are, quite naturally, silent on the question of beverages.
To go in the opposite direction – to claim that the Senate has created a milk-only precedent – is to do exactly what Dirksen didn’t want to do: effectuate a permanent change to Senate practice. What he wanted was a one-off exemption from a custom that allowed only water on the floor. He was even willing to abide by that custom if it were something more formal – a rule or precedent prohibiting anything other than water. Instead, what he got was a binding interpretation of Senate rules that permanently placed milk in the exalted position of “beverages permitted on the Senate floor”. And the fact that no other beverage has this status in Riddick’s has led to the ludicrous view that only milk is permitted.
To take this discussion out of the Milky Way and down to Earth for a moment, let’s see see what other kinds of (more substantive) nonsense might be achieved by twisting the rules in the same manner. Let’s say Senator Smith has a hard time getting his bill up for a vote. So he makes up a motion that doesn’t exist under Senate rules – the “motion to expedite”. Smith says that the motion to expedite suspends all Senate business and brings about an immediate vote on any bill. He then asks the presiding officer, “Is there any rule prohibiting me from offering a motion to expedite?” The presiding officer would have to say that no such rule exists. And bingo, Riddick has no choice but to write in Senate Procedure: “Senate rules do not prohibit a Senator from offering a motion to expedite.” Now Senator Smith has created a binding interpretation of Senate rules that effectively creates a new motion and a completely new method of transacting Senate business.
If you can create a milk rule out of thin air just because the Senate lacks a rule to the contrary, then you can create a rule for anything. And if you can create rules arbitrarily at any time, then you effectively have no rules. Far from being the “world’s greatest deliberative body” the Senate is a lawless forum of procedural anarchy. It binds itself to pointless milk precedents while simultaneously “nuking” formal rules by denying their plain meaning. A majority can bully its way to any outcome it thinks it can get away with, or the Senate as a whole can throw up its hands and agree to avoid some catastrophe by unanimous consent. But otherwise, it doesn’t “function” in any sense of the word. There are no rules, and therefore there is no true deliberation, on anything.
Weird precedents about milk might seem like quaint fun, but hopefully I’ve demonstrated the extent to which this kind of nonsense is detrimental to the functioning of a parliamentary body. If the Senate does not take seriously to how it goes about enforcing rules and establishing precedents, then it is not taking seriously its very important role in our constitutional system of government.
We should demand that it do better.