Can Congress Police Itself?

Abstract:     
This Article examines the question of whether Congress can police itself in the legislative process. It assesses Congress’s capacity and incentives to enforce upon itself the procedural rules that govern the legislative process. Using an inter-disciplinary approach, the Article explores the non-judicial forces that may motivate lawmakers to engage in self-policing and rule-following behavior. It argues that non-judicial safeguards cannot adequately ensure congressional compliance with procedural rules.

This exploration is important because the federal courts’ consistent reluctance to enforce these rules has left their enforcement entirely to Congress. It is also important because, as legal scholars are increasingly realizing, the procedural rules that govern the legislative process have immense practical importance for both procedural ideals and substantive outcomes. In addition to contributing to the burgeoning new scholarship about legislative rules, this Article has crucial implications for the vigorous normative debate about judicial review of the legislative process. Further, it helps illuminate the general debate on whether “political safeguards” reduce the need for judicial review.

Working Paper Series