March 9, 2011 – Article I, Section 05, Clause 2 of the United States Constitution – Guest Essayist: Paul S. Teller, Ph.D., Executive Director of the Republican Study Committee in the U.S. House of Representatives
Article 1, Section 5, Clause 2
Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.
Article 1, Section 5, Clause 2 of the U.S. Constitution states that, “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.” This seems like a fairly straightforward clause, but it has ramifications that many folks often overlook.
The heart of this clause is with its first phrase, regarding each house of Congress determining its own rules. The most obvious implication (and purpose) of this clause is the prevention of one house from changing the culture of the other house. For example, it is common knowledge in Washington that the House is the faster, more reactive legislative body, and the Senate is the slower, more deliberative body. This difference was deliberately designed by the Founders and pervades even the pace of people’s strides in the halls of Congress today. Walk from a House office building through the Capitol and into a Senate office building, and you’ll feel as if you’ve just stepped from air into water into jelly.
Article 1, Section 5, Clause 2 prevents one house from making cultural changes to the other—from turning air into jelly or vice versa. For example, the Senate cannot force the House to spend four legislative days on one bill. Similarly, the House cannot force the Senate to abandon the filibuster. Thus, this clause of the Constitution has contributed to the relative stability of the culture of the two chambers over the centuries.
But perhaps more notably still, Article I, Section 5, Clause 2 also prevents a current Congress (and a current President, for that matter) from binding the procedural actions of a future Congress. This point is critical to understanding legislating in the American political system. That is, no matter what any Congress and President enact into law, the fact that each house of Congress sets its own rules will ALWAYS trump any law (because a provision in the Constitution always trumps a statute).
For example, say Congress passes and the President signs a law that says that all appropriations bills must be considered in Congress under an “open rule” that allows any germane amendment to be offered at any time without any pre-filing requirement. But then the following year, the House brings an appropriations bill to the floor under a “closed rule” allowing absolutely no amendments at all. Which rule wins? The closed rule wins, under Article I, Section 5, Clause 2, since the House is constitutionally guaranteed the right to set the rules of its own proceedings, irrespective of what any law, regulation, or common practice would supposedly require or suggest.
One big downside to this clause, however, is that it also guarantees the right of each house of Congress to ignore its own rules. For example, at the start of every Congress, the House enacts a revised rules package—a set of rules that will guide the consideration of legislation for the subsequent two years. However, it is common practice for the House, when considering “major” legislation, to enact “special rules” that provide for the consideration of just that major bill. Very often, a special rule states that some of the underlying House rules either do not apply or that a Member may not cite them on the floor to claim that a violation has occurred (“make a point of order”). Furthermore, the House frequently considers non-controversial legislation under a procedure called “suspension of the rules”—literally a setting aside of the underlying House rules in exchange for limited debate, a prohibition on amendments, and a two-thirds vote threshold required for passage.
Can anyone do anything about such avoidance of the rules? Not at all. There is neither check nor balance against either house of Congress ignoring its own rules and setting up new ones any time it wants to—either temporarily or permanently. Says who? Says Article I, Section 5, Clause 2.
Paul Teller is the Executive Director of the Republican Study Committee (RSC) , where he sets and implements strategy for the RSC’s policy, communications, and coalitions efforts. The Washington Post recently described Paul as “one of the most influential conservative aides in Congress.”