Law Within Congress.

• Author: Gould, Jonathan S.

ARTICLE CONTENTS INTRODUCTION 1950 I. FOUNDATIONS OF PARLIAMENTARY PRECEDENT 1959 A. The Rules Governing Congress and the Need for Interpretation 1959 B. Modes of Parliamentary Precedent 1963 1. Floor Proceedings 1965 2. Parliamentary Advice 1967 3. Committee Referrals 1969 4. Adjudication off the Floor 1971 C. Unorthodox Lawmaking and Parliamentary Precedent 1973 D. Legal Authority 1978 II. PARLIAMENTARY DECISION-MAKING 1979 A. Parliamentary Precedent as Common Law 1980 B. Strong Stare Decisis 1982 C. Decisional Minimalism 1984 D. Interpretive Tools: Legislative Purpose and Legislative History 1987 1. Purpose 1987 2. Legislative History 1989 III. PRESERVING AUTONOMY IN THE SHADOW OF POLITICS 1991 A. Decision-Making Approaches 1994 1. Strong Stare Decisis 1994 2. Decisional Minimalism 1998 3. Hierarchy of Precedents 1999 4. Interpretive Tools 2001 B. Personnel Policies 2004 C. The Advisory Role 2007 D. Publicity and Transparency 2008 IV. LESSONS FOR PUBLIC LAW 2011 A. Fostering Legitimacy and Autonomy 2011 1. Legal Decision-Making and Legitimacy 2011 2. Personnel and Neutrality 2014 3. Obscurity and Self-Protection 2017 4. Norms and Institutions 2018 B. Dynamics of Legal Change 2020 C. Informing Statutory Interpretation 2021 D. Parliamentary Precedent in a Partisan Age 2024 CONCLUSION 2027 INTRODUCTION

Legislative procedure shapes what happens in Congress. During recent attempts to repeal the Affordable Care Act, budget rules limited which provisions could be included in the repeal bills. Those budget rules have also required that tax cuts include sunset provisions and have shaped federal policy on topics ranging from education to abortion to firearms regulation. (1) An interpretation of the House's amendment rules prevented the impeachment resolution against President Clinton from being changed to a censure resolution instead. (2) And procedure in both chambers helped save landmark civil-rights legislation in the 1960s from dying in committees chaired by segregationists. (3) Time and again, parliamentary procedure shapes outcomes in Congress.

Most observers associate legislative procedure with written rules, such as the Senate's supermajority cloture requirement. (4) But Congress's written rules are merely the tip of an iceberg. Many of the rules and statutes that govern legislative procedure are open-ended and fail to provide much guidance in practice. What is and is not permitted in Congress therefore often turns on parliamentary precedents, a robust body of common law that addresses the many issues that rules and statutes leave open. Those precedents are made and applied by nonpartisan quasi-judicial figures in each chamber: the House and Senate parliamentarians. When a procedural question arises in Congress--such as whether a bill, amendment, or provision is permissible in a given circumstance--the parliamentarians typically determine the outcome.

In each chamber, the parliamentarian's office consists of a parliamentarian and several deputies, assistants, and other staff. Each chamber's parliamentarian is appointed by the majority party leadership, though in practice the role is filled by succession: new parliamentarians have always been former deputies or assistants. Collectively, the parliamentarians and their staffs serve as procedural referees, (5) resolving disputes in light of their understandings of relevant rules and precedents. (6) The parliamentarians preside over a common-law system, with each new decision becoming a precedent to guide future cases.

In making and applying parliamentary precedent, the parliamentarians face questions familiar to any observer of the judiciary. What sources should be used to interpret ambiguous legal provisions? How should one reason from prior precedents? When is it appropriate to overrule a precedent? Should decisions be minimalist, deciding only the present controversy, or broader, creating general rules to apply in the future? And what approaches to decision-making will enhance rather than undermine the decision-maker's legitimacy in the eyes of relevant audiences?

This Article examines how parliamentary precedent approaches these questions. In many respects, parliamentary decision-making mirrors its judicial counterpart. The parliamentarians decide procedural disputes based on their best reading of relevant rules, precedents, and other legal materials. But the parliamentarians have forged their own path in several key ways.

The distinctive features of how the parliamentarians operate result directly from their institutional positions within Congress. One senator has noted, in response to an unfavorable ruling, that you cannot "fir[e] the judge if you disagree with his ruling." (7) As a formal matter, however, the majority party can fire, overrule, or ignore the parliamentarian at any time. As a result, the parliamentarians "play a daily game of chicken" (8) with the majority party. They face a difficult task: maintaining autonomy in a highly partisan atmosphere. (9)

Parliamentary precedent, in other words, develops in the shadow of politics. Though the parliamentarians deploy familiar legal concepts and earnestly see themselves as neutral legal technicians, their work is inexorably tied to congressional politics. New precedents often emerge when legislators push boundaries and the parliamentarians either bless or condemn that boundary-pushing. Just as importantly, the decisional methods that the parliamentarians employ, while legalistic in character, serve to secure their autonomy in the face of threats from political majorities. So, too, nearly every aspect of the parliamentarians' work reflects their need to bolster their perceived legitimacy in the eyes of legislators, especially members of the majority.

This Article's exploration of parliamentary precedent is important as a practical matter because legislative procedure, including parliamentary precedent, can shape legislative outcomes. Legislative procedure is particularly consequential in the contemporary Congress, given the prevalence of intense legislative polarization, narrow margins between majorities and minorities, recurrent changes in party control, and a rise in constitutional hardball. Recent years have witnessed several high-stakes procedural battles in Congress, with more likely to come in the future. (10) One House Speaker even quipped that the most powerful person in the Senate wasn't a senator but was instead the Senate's parliamentarian, whose role in interpreting the rules, especially rules relating to the budget process, gave her enormous power over legislative outcomes. (11)

An examination of parliamentary precedent also contributes to three areas of public-law scholarship. First, it adds to a growing body of work that opens the black box of how Congress operates. Although legal scholarship has historically neglected the details of Congress's internal workings, recent scholarship has argued that Congress's internal workings are relevant to statutory interpretation, (12) separation of powers, (13) legislative institutional design, (14) and legislators' normative obligations. (15) This Article similarly provides a more textured picture of how Congress operates in our era of "unorthodox lawmaking." (16) Such a picture has broad implications for how we understand the legislative process and the statutes that result from it.

Second, this Article illuminates the role of norms and conventions in governance, with particular attention to those concerning neutrality, expertise, and political insulation. Unlike federal judges, the parliamentarians report directly to politicians, who can remove them at will. Despite this fact, the parliamentarians have come to be seen as neutral experts, even as they operate in a highly partisan institution without any formal protection from removal. And, in recent years, even as so many other governance norms have frayed, (17) norms around parliamentary neutrality and autonomy have mostly persisted. The parliamentarians thus illustrate "the role of conventions in creating and protecting... independence." (18) For them, as for other institutional actors, "[l]egally enforceable for-cause tenure protection is neither necessary nor sufficient for operational independence." (19) The independence of the parliamentarians depends in significant part on their active efforts to foster reputations for neutral expertise in the eye of a partisan storm. During this age of constitutional hardball, their successes and failures hold more general lessons for sustaining norms of independence in other institutions.

Third, this Article considers the operation of common law and precedent in a new institutional setting, with implications for how we think about the relationship between law and politics. There is extensive scholarship on precedent in courts. (20) Less has been written on precedent in other settings, but important contributions include work on precedent in the Office of Legal Counsel (21) and in international tribunals. (22) The dynamics around precedent in Congress raise issues parallel to those considered by scholarship on these other settings. Not only can other institutional settings provide insight into parliamentary precedent, but a close look at parliamentary precedent can also shed light on how precedent operates elsewhere. In particular, this Article's examination of parliamentary precedent highlights dynamics around how external pressures shape common-law decision-making. It is unlikely that the parliamentarians are the only adjudicators whose decision-making is shaped by external pressures, and understanding how those pressures operate can hold lessons for other actors.

In addressing these topics, this Article relies not only on published materials but also on interviews with those involved in making parliamentary precedent. I interviewed nearly two dozen parliamentarians, staffers in the parliamentarians' offices (deputies and assistants), and...