{"id":30990,"date":"2022-07-29T13:17:30","date_gmt":"2022-07-29T18:17:30","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/constitution\/article1\/annotation20.html"},"modified":"2022-07-29T13:17:30","modified_gmt":"2022-07-29T18:17:30","slug":"annotation20","status":"publish","type":"constitution","link":"https:\/\/constitution.findlaw.com\/article1\/annotation20.html","title":{"rendered":"Article I, Section 5: The Rules of Legislative Proceedings"},"content":{"rendered":"\r\n
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Article I, Section 5: The Rules of Legislative Proceedings<\/h1>\r\n
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\n By FindLaw Staff<\/a> | Legally reviewed by Renee Guolee, J.D.<\/a>\n | Last reviewed\n
\n \n <\/i>\n Legally Reviewed\n <\/summary>\n\n
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This article has been written and reviewed for legal accuracy, clarity, and style by FindLaw\u2019s team of legal writers and attorneys<\/a> and in accordance with our editorial standards<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n\n

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The last updated date refers to the last time this article was reviewed by FindLaw or one of our contributing authors<\/a>. We make every effort to keep our articles updated. For information regarding a specific legal issue affecting you, please contact an attorney in your area<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n<\/section>\n

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What rules are Senators and Representatives required to follow on Capitol Hill, and where do those rules come from? For the most part, Congress makes its own rules – and that power comes from Article I, Section 5. <\/p>\n\n <\/div>\n\r\n

How many votes does it take for a bill to become a law? What happens when a member of Congress abuses their position of power? Who makes the rules for the Senate and the House of Representatives? <\/p>\r\n

The answers to these questions lie in Article I, Section 5 of the United States Constitution. Most importantly, this portion of the constitution gives Congress the right to make its own rules. <\/p>\r\n

What Does Article I, Section 5 Say?<\/h2>\r\n

Clause 1:<\/h3>\r\n

"Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide."<\/p>\r\n

Clause 2:<\/h3>\r\n

"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."<\/p>\r\n

Clause 3:<\/h3>\r\n

"Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal."<\/p>\r\n

Clause 4:<\/h3>\r\n

"Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting."<\/p>\r\n

What Are the Rules of the Legislative Branch?<\/h2>\r\n

United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation<\/i><\/b><\/p>\r\n

Each House, in judging of elections under this clause, acts as a judicial tribunal, with like power to compel the attendance of witnesses. In the exercise of its discretion, it may issue a warrant for the arrest of a witness to procure his testimony, without previous subpoena, if there is good reason to believe that otherwise such witness would not be forthcoming.1<\/sup> It may punish perjury committed in testifying before a notary public upon a contested election.2<\/sup> The power to judge elections extends to an investigation of expenditures made to influence nominations at a primary election.3<\/sup> Refusal to permit a person presenting credentials in due form to take the oath of office does not oust the jurisdiction of the Senate to inquire into the legality of the election.4<\/sup> Nor does such refusal unlawfully deprive the state that elected such person of its equal suffrage in the Senate.5<\/sup><\/p>\r\n

What Constitutes a Quorum in Congress?<\/h2>\r\n

For many years the view prevailed in the House of Representatives that it was necessary for a majority of the members to vote on any proposition submitted to the House in order to satisfy the constitutional requirement for a quorum. It was a common practice for the opposition to break a quorum by refusing to vote. This was changed in 1890, by a ruling made by Speaker Reed and later embodied in Rule XV of the House, that members present in the chamber but not voting would be counted in determining the presence of a quorum.6<\/sup> The Supreme Court upheld this rule in United States v. Ballin<\/a><\/i>,7<\/sup> saying that the capacity of the House to transact business is \u201ccreated by the mere presence of a majority\u201d, and that since the Constitution does not prescribe any method for determining the presence of such majority \u201cit is therefore within the competency of the House to prescribe any method which shall be reasonably certain to ascertain the fact\u201d.8<\/sup> The rules of the Senate provide for the ascertainment of a quorum only by a roll call,9<\/sup> but in a few cases it has held that if a quorum is present, a proposition can be determined by the vote of a lesser number of members.10<\/sup><\/p>\r\n

Congress Makes Its Own Rules<\/h2>\r\n

In the exercise of their constitutional power to determine their rules of proceedings, the Houses of Congress may not \u201cignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. But within these limitations all matters of method are open to the determination of the house. . . . The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the house, and within the limitations suggested, absolute and beyond the challenge of any other body or tribunal.\u201d11 <\/sup><\/p>\r\n

If a rule affects private rights, its construction becomes a judicial question. In United States v. Smith<\/a><\/i>,12<\/sup> the Court held that the Senate’s reconsideration of a presidential nominee for chairman of the Federal Power Commission, after it had confirmed him and he had taken the oath of office, was not warranted by its rules and did not deprive the appointee of his title to the office. In Christoffel v. United States<\/a><\/i>,13<\/sup> a sharply divided Court upset a conviction for perjury in a federal district court of a witness who had denied under oath before a House committee any affiliation with Communist programs. The reversal was on the ground that, because a quorum of the committee, although present at the outset, was not present at the time of the alleged perjury, testimony before it was not before a \u201ccompetent tribunal\u201d within the sense of the District of Columbia Code.14<\/sup> Four Justices, in an opinion by Justice Jackson, dissented, arguing that, under the rules and practices of the House, \u201ca quorum once established is presumed to continue unless and until a point of no quorum is raised\u201d and that the Court was, in effect, invalidating this rule, thereby invalidating at the same time the rule of self-limitation observed by courts \u201cwhere such an issue is tendered.\u201d15<\/sup><\/p>\r\n

The Appointments Clause provides that the President \u201cshall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law. . . .\u201d16<\/sup><\/p>\r\n

The Constitution provides that Each House may determine the Rules of its Proceedings,17<\/sup> and the Senate has enacted a cloture rule18<\/sup> requiring a supermajority vote (60 votes) to close debate on any matter pending before the Senate. Absent the invocation of cloture or some other means of ending debate, matters can remain before the Senate indefinitely. <\/p>\r\n

The practice of preventing closure is known as a filibuster. Although no provision of the Constitution expressly requires that the Senate or House act by majority vote in enacting legislation or in exercising their other constitutional powers, the framers of the Constitution were committed to a majority rule as a general principle.19<\/sup> These facts have given rise to disagreement as to the constitutionality of the filibuster as applied to judicial nominees\u2014disagreement over whether the \u201cAdvice and Consent\u201d of the Senate means the majority of the Senate and not a super-majority. The constitutionality of the filibuster has been challenged in court several times, but those cases have never reached the merits of the issue.20<\/sup> More recently, the Senate interpreted its rules to require only a simple majority to invoke cloture on most nominations.21<\/sup><\/p>\r\n\r\n\r\n

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