Lawmakers as lawbreakers.

• Author: Bar-Siman-Tov, Ittai

ABSTRACT

How would Congress act in a world without judicial review? Can lawmakers be trusted to police themselves? This Article examines Congress 's capacity and incentives to enforce upon itself "the law of congressional lawmaking"--a largely overlooked body of law that is completely insulated from judicial enforcement. The Article explores the political safeguards that may motivate lawmakers to engage in self-policing and rule-following behavior. It identifies the major political safeguards that can be garnered from the relevant legal, political science, political economy, and social psychology scholarship, and evaluates each safeguard by drawing on a combination of theoretical, empirical, and descriptive studies about Congress. The Article's main argument is that the political safeguards that scholars and judges commonly rely upon to constrain legislative behavior actually motivate lawmakers to be lawbreakers.

In addition to providing insights about Congress 's behavior in the absence of judicial review, this Article's examination contributes to the debate about judicial review of the legislative process, the general debate on whether political safeguards reduce the need for judicial review, and the burgeoning new scholarship about legislative rules.

TABLE OF CONTENTS INTRODUCTION I. THE LAW OF CONGRESSIONAL LAWMAKING A. The Rules Governing Lawmaking B. The Value of Lawmaking Rules II. THE FALLIBILITY OF CONGRESSIONAL ENFORCEMENT A. Congress's Enforcement Mechanisms B. Congressional Capacity To Enforce: The Farm Bill C. Congressional Will To Enforce: The Deficit Reduction Act of 2005 D. When the Enforcers Are the Violators: The 2003 Medicare Bill III. THE MYTH OF POLITICAL SAFEGUARDS A. Reelection Motivations and Electoral Controls 1. Voters' Inattention and (Rational) Ignorance 2. Voters' Electoral Choices 3. Uncompetitive Elections and Incumbents' Electoral Security B. Interest Groups C. Policy Motivations D. Parties and Leaders E. Institutional Rivalry and Institutional Interests F. Presidential Veto Power G. Ethical and Noninstrumental Motivations H. Summary IV. WHEN WILL LAWMAKERS BE LAWBREAKERS? A. Which Rules Are More Susceptible to Violation? B. When Are Violations More Likely? C. The Incidence of Violations CONCLUSION INTRODUCTION

How would Congress act in a world without judicial review? Can lawmakers be trusted to police themselves? When it comes to "the law of congressional lawmaking"--the constitutional, statutory, and internal rules that govern Congress's legislative process (1)--this question is not merely theoretical. Federal courts have consistently refused to enforce this body of law, (2) leaving its enforcement entirely to Congress. (3) This largely overlooked area of law is therefore a useful laboratory for evaluating Congress's behavior in the absence of judicial review.

This Article examines whether Congress has the capacity and incentives to enforce upon itself the law of congressional lawmaking. It explores the major "political safeguards" (4) that can be garnered from the legal, political science, political economy, and social psychology scholarship about self policing and rule following. It then evaluates each safeguard by drawing on a combination of theoretical, empirical, and descriptive studies about Congress. This Article's main argument is that the political safeguards that scholars and judges commonly rely upon to constrain legislative behavior actually have the opposite effect: these "safeguards" in fact motivate lawmakers to be lawbreakers.

This Article also explores Congress's capacity to enforce upon itself the law of congressional lawmaking by examining Congress's enforcement mechanisms and presenting three cases that demonstrate the circumstances under which these mechanisms can fail. The Article argues that congressional enforcement is fallible both in terms of lawmakers' capacity to police themselves and in terms of their incentives to do so.

This examination has crucial importance for at least three areas of legal scholarship. The first is the debate about judicial review of the legislative process. The question of whether courts should enforce the rules governing lawmaking and other principles of "due process of lawmaking" is "currently the subject of vigorous debate ... in the scholarly literature." (5) One of the prominent objections to judicial enforcement is "the argument that judicial review of the enactment process is not needed because Congress (coupled with the inherent check of the presidential veto power) can be relied upon to police itself." (6) Indeed, opponents of judicial oversight claim that Congress has "adequate incentives" and "numerous, effective techniques" to enforce compliance with the law of lawmaking. (7) This assumption is also at least partly responsible for the Supreme Court's reluctance to enforce this body of law. (8) In some states, this assumption even contributed to the enactment of constitutional amendments barring judicial review of the legislative process. (9) Hence, although this Article expresses no opinion on other arguments underlying the debate about judicial review of the legislative process, by refuting the prevalent underlying assumption of judicial review opponents, it contributes to a crucial aspect of this debate.

Second, this Article's examination also contributes to the debate about whether political safeguards can reduce or eliminate the need for judicial review in other areas. Assumptions about political safeguards and about Congress's incentives and capacities have long been influential in normative debates about federalism, (10) and are becoming increasingly influential in broader debates about judicial review, judicial supremacy, and congressional constitutional interpretation. (11) This Article's examination may be particularly helpful to these debates, (12) responding to the need for scholarship examining areas of congressional activity that are "outside the [s]hadow [c]ast by the [c]ourts." (13)

Third, this Article's examination is fundamental for the burgeoning new scholarship about legislative rules. After many years of largely neglecting the rules that govern the legislative process, legal scholars are increasingly realizing that these rules "are at least as important a determinant of policy outcomes and of the quality of legislative deliberation as are electoral rules, substantive legislative powers, and other subjects studied exhaustively by constitutional lawyers." (14) Indeed, a flurry of recent scholarship lauds such rules as a solution to a wide array of pathologies in the legislative process and as a means to achieve procedural ideals as well as better substantive outcomes. (15) Given the lack of external enforcement, however, it is essential to evaluate Congress's capacity and incentives to enforce these rules on its own in order to assess the viability of these solutions.

Part I provides a brief overview of the rules that regulate the legislative process. It then establishes the practical and normative importance of these rules, integrating the insights of political scientists, democratic theorists, legal philosophers, and social psychologists. Part II reveals the fallibility of congressional enforcement of these rules by examining Congress's enforcement mechanisms and the circumstances under which they can fail.

Part III explores political safeguards and their projected impact on congressional compliance with the law of congressional lawmaking, arguing that these safeguards' overall impact is in fact a motivation to violate the rules. Although the Article refutes several assumptions that are widely held by judges and scholars alike, it does not go so far as to argue that Congress will never follow the rules. Instead, Part IV offers some observations about the types of rules that are more susceptible to violations and the circumstances in which violations are more likely.

1. THE LAW OF CONGRESSIONAL LAWMAKING

   1. The Rules Governing Lawmaking

      The congressional legislative process is governed by a variety of normative sources. The Constitution sets relatively sparse procedural requirements for lawmaking, (16) while authorizing each house to "determine the Rules of its Proceedings." (17) The majority of the rules that govern the congressional legislative process are therefore enacted under this authority, either as statutory rules (18) or as standing rules by each chamber independently. (19) These enacted rules are complemented by the chambers' formal precedents, which "may be viewed as the [chambers'] 'common law' ... with much the same force and binding effect," (20) and by established conventional practices. (21)

      Although Congress may not alter the constitutional rules, (22) both chambers have procedures that allow for amendment of the nonconstitutional rules, as well as procedures to waive or suspend virtually any statutory or internal rule. (23) Nevertheless, the subconstitutional rules are also widely accepted as binding and enforceable law, in the sense that they have "come to be recognized as binding on the assembly and its members, except as it may be varied by the adoption by the membership of special rules or through some other authorized procedural device." (24)

      This large body of constitutional, statutory, and internal rules regulating the congressional lawmaking process can be described as "the law of congressional lawmaking." This Article focuses on a particular part of this law: the constitutional and various subconstitutional rules that set procedural restrictions on the legislative process. (25)

      This includes rules that stipulate the procedural requirements that must be satisfied for a bill to become law, such as the constitutional bicameralism and presentment requirements, (26) the constitutional quorum requirement, (27) and the subconstitutional requirement that every bill receive three readings prior to passage. (28) It additionally includes rules that limit the pace...