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Gould Article JONATHAN S. GOULD Law Within Congress abstract. Procedure has long shaped how Congress operates. Procedural battles have been central to legislative contestation about civil rights, the welfare state, tax policy, and presidential impeachments. In these instances and many others, procedural disputes often turn not on written rules but on parliamentary precedents. These precedents constitute a hidden system of law that has received little scholarly attention, despite being critical to shaping what goes on in Congress. This Article explores parliamentary precedent in Congress. Parliamentary precedent mostly resembles judicial precedent: both are common-law systems that rely on the arguments of adver- sarial parties. But the two systems differ in key respects. Parliamentary decision-making employs an especially strong form of stare decisis, is minimalist in the extreme, and relies freely on legisla- tive purpose and legislative history as tools of interpretation. These seemingly legal dynamics play out in the shadow of congressional politics. Understand- ing parliamentary precedent requires understanding the institutional positions of the parliamen- tarians, the nonpartisan officials who resolve procedural disputes. The parliamentarians’ distinc- tive jurisprudence reflects their tenuous positions—namely, that they can be removed, overruled, or circumvented by the majority party. Drawing on novel interviews with parliamentarians and the legislative staffers who work closely with them, this Article illuminates the intersection of law and politics in the making of parliamentary precedent. A better understanding of parliamentary precedent contributes to our understanding of how Congress operates and the fault lines that emerge in an age of polarization and hardball. These dynamics also hold lessons for public law more broadly. First, the parliamentarians’ efforts to pro- tect themselves from the political fray shed light on efforts by other governmental decision-makers (in all three branches) to do the same. Second, the development of parliamentary precedent pro- vides insight into the relationships between positive law and common law and between law and politics. Third, understanding parliamentary precedent, like understanding other elements of Congress’s internal workings, can inform statutory interpretation. 1946 law within congress author. Assistant Professor of Law, University of California, Berkeley. Special thanks to the parliamentarians, parliamentary staff, and legislative staff who generously volunteered their time and perspectives. For helpful comments and conversations, I am grateful to Jacob Abolafia, Eric Beerbohm, Josh Chafetz, Lori Damrosch, Ryan Doerfler, Gregory Elinson, Richard Fallon, Abbe Gluck, Rebecca Goldstein, Bert Huang, Rebecca Kysar, Jacob Lipton, Martha Minow, Walter Oleszek, David Pozen, Kenneth Shepsle, Matthew Stephenson, Charles Tiefer, Susannah Barton Tobin, and Michael Zuckerman; workshop participants at Berkeley Law School, Columbia Law School, Harvard’s Edmond J. Safra Center for Ethics, and Yale’s Legislation Roundtable; and the editors of the Yale Law Journal, especially Ela Leshem, Nikita Lalwani, Soren Schmidt, and Doni Bloomfield. Thanks to Perry Abdulkadir for superb research assistance. Harvard’s Edmond J. Safra Center for Ethics and Center for American Political Studies provided generous financial support. This Article was named a winner of the 2020 AALS Scholarly Papers Competition. 1947 the yale law journal 129:1946 2020 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 1948 law within congress 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 1949 the yale law journal 129:1946 2020 introduction Legislative procedure shapes what happens in Congress. During recent at- tempts 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 rang- ing from education to abortion to firearms regulation.1 An interpretation of the House’s amendment rules prevented the impeachment resolution against Presi- dent Clinton from being changed to a censure resolution instead.2 And proce- dure in both chambers helped save landmark civil-rights legislation in the 1960s from dying in committees chaired by segregationists.3 Time and again, parlia- mentary 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 prec- edents, 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, amend- ment, 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 assis- 1. See BILL HENIFF JR., CONG. RESEARCH SERV., RL30862, THE BUDGET RECONCILIATION PRO- CESS: THE SENATE’S “BYRD RULE” 20-33 (2016), https://fas.org/sgp/crs/misc/RL30862.pdf [https://perma.cc/C4KJ-RG2Y]; Ellen P. Aprill & Daniel J. Hemel, The Tax Legislative Process: A Byrd’s Eye View, 81 LAW & CONTEMP. PROBS. 99 (2018). 2. See WILLIAM MCKAY & CHARLES W. JOHNSON, PARLIAMENT AND CONGRESS: REPRESENTATION AND SCRUTINY IN THE TWENTY-FIRST CENTURY 509 (2010); see also CHARLES W. JOHNSON ET AL., HOUSE PRACTICE: A GUIDE TO THE RULES, PRECEDENTS, AND PROCEDURES OF THE HOUSE 562 (2017) [hereinafter OUSEH PRACTICE]. 3. See infra notes 98-99 and accompanying text. 4. See STANDING RULES OF THE SENATE r. XXII(2), S. DOC. NO. 113-18 (2013) [hereinafter SENATE RULES], https://rules.senate.gov/imo/media/doc/CDOC-113sdoc18.pdf [https:// perma.cc/PAN5-376Q]. 1950 law within congress tants. Collectively, the parliamentarians and their staffs serve as procedural ref- erees,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 en- hance rather than undermine the decision-maker’s legitimacy in the eyes of rel- evant audiences? This Article examines how parliamentary precedent approaches these ques- tions. 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 par- liamentarians 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 disa- gree 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 parliamen- tarians “play a daily game of chicken”8 with the majority party. They face a diffi- cult 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
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