The Constitutional Law of Congressional Procedure

The federal Constitution contains a set of rules that I will describe as the constitutional law of congressional procedure. These are rules that directly regulate the internal decisionmaking procedures of Congress;1 absent specific constitutional provision, those internal procedures would be subject

to the authority of each house to "determine the Rules of its Proceedings."2 The constitutional law of congressional procedure thus encompasses the long catalogue of procedural provisions in Sections 4 and 5 of Article I, which includes rules for assembling the legislature, selecting its officers, and disciplining its members; voting and quorum rules; rules governing the transparency of deliberation and voting; and a range of other provisions. It also encompasses other important rules scattered elsewhere in Articles I and II, such as the Origination Clause,3 special quorum rules for supermajority voting,4 and the procedures for overriding a presidential veto.5 But I shall exclude questions about the structure and composition of Congress-questions such as the choice between bicameralism and unicameralism, or the standing qualifications for federal legislative office. Drawing this boundary has both methodological and substantive justifications. Methodologically, it is impossible to talk fruitfully about the design of constitutional rules if everything is up for grabs all at once; there must be fixed points from which the analysis may proceed. Substantively, the composition and structure of Congress fall outside the houses' internal rulemaking powers, so they do not bear directly on the Constitution's choice to prescribe some procedural rules while leaving others to legislative discretion.