Theory vs. Praxis: Constitutional Discourse and House Rule XII

THEORY VS. PRAXIS: CONSTITUTIONAL DISCOURSE AND HOUSE RULE XII

Connor M. Ewing*

ABSTRACT

House Rule XII, requiring the submission of a Constitutional Authority Statement (CAS) with every bill and joint resolution, offers a window into constitutional discourse in the House of Representatives. While this rules change, introduced by Republicans in the 112th Congress, has been accompanied by increased attention to the relationship between Congress and the Constitution, there has yet to be a systematic evaluation of representatives’ behavior related to CAS or an analysis of the quality of constitutional discourse that the rule has induced. This essay addresses those issues, and in so doing connects the theoretical hopes surrounding constitutional discourse in Congress to the empirical record created by the requirements of Rule XII. Drawing on a new dataset of all CAS submitted between January and April 2012 (1,571 CAS), I code representatives’ statements according to their constitutional content. Employing three threshold classifications (Sufficient, Robust, and Sophisticated) I generate a measurement of statement performance, which I term the Constitutional Discourse Score (CDS). An analysis of the threshold classifications and CDS across the House, between parties, and between Tea Party Caucus members and non-member Republicans yields two findings. First, constitutional discourse related to authority statements is both minimal and formalistic, and it frequently falls short of Rule XII’s requirements. And second, Republicans consistently outperform Democrats, while Tea Party Caucus members outperform non-members, across all levels of evaluation.

CONTENTSIntroduction 2...............................................................................................I. Research Design 6..................................................................................II. Results 11................................................................................................

A. CAS Threshold Evaluation 11...........................................................B. Errors 13.............................................................................................C. Constitutional Discourse Scores 14....................................................D. The Substance of Sophisticated Discourse 16...................................

III. Analysis 19..............................................................................................Conclusion 23................................................................................................

Doctoral Student, Department of Government, University of Texas at Austin. A.M., *

University of Chicago, 2011. B.A., University of Wisconsin—Madison, 2008. The author would like to thank Sean Theriault, Jeffrey Tulis, and Christina Noriega for their helpful comments and suggestions, and, on general principle, Cindy Ewing.

�� THEORY VS. PRAXIS [03/09/152

Reporter: “Madam Speaker, where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?”Speaker Pelosi (D-CA): “Are you serious? Are you serious?”1

Majority Leader Cantor (R-VA): “We establish a Constitution-focused House of Representatives, which starts by reading the Constitution of the United States on the House floor and requiring that every bill be accompanied by a statement of constitutional authority.”2

INTRODUCTION

The leitmotif of Tea Party rhetoric during the 2010 midterm elections was a return to constitutional governance, construed to mean the retrenchment of national power and a return to constitutionally imposed limitations on congressional powers. For many Republicans, Speaker Pelosi’s retort was emblematic of the country’s fall from constitutional grace. Under the promise to “Adhere to the Constitution,” the Republicans’ campaign manifesto, “A Pledge to America,” included the following proposed reform:

For too long, Congress has ignored the proper limits imposed by the Constitution on the federal government. Further, it has too often drafted unclear and muddled laws, leaving to an unelected judiciary the power to interpret what the law means and by what authority the law stands…We will require each bill moving through Congress to include a clause citing the specific constitutional authority upon which the bill is justified.3

Ian Millhiser, “Pelosi Dismisses Tenther Reporter: ‘Are You Serious?’,” THINK 1

PROGRESS, Oct. 23, 2009 (http://thinkprogress.org/media/2009/10/23/65881/pelosi-serious/); and Mytheos Holt, “Pelosi: Obamacare Will Be Upheld ‘Because I Know the Constitution,” THE BLAZE, May 31, 2012 (http://www.theblaze.com/stories/2012/05/31/pelosi-obamacare-will-be-upheld-because-i-know-the-constitution/).

Proceedings of the House of Representatives, Jan. 5, 2011, CONGRESSIONAL RECORD, 2

H11 (http://www.gpo.gov/fdsys/pkg/CREC-2011-01-05/pdf/CREC-2011-01-05.pdf).

“A Pledge to America: Read the Bill,” GOP.gov (http://www.gop.gov/indepth/pledge/3

readthebill#body).

http://thinkprogress.org/media/2009/10/23/65881/pelosi-serious/

http://www.theblaze.com/stories/2012/05/31/pelosi-obamacare-will-be-upheld-because-i-know-the-constitution/

http://www.gpo.gov/fdsys/pkg/CREC-2011-01-05/pdf/CREC-2011-01-05.pdf

http://GOP.gov

http://www.gop.gov/indepth/pledge/readthebill#body

03/08/15] THEORY VS. PRAXIS ��3

The November 2010 elections brought the largest swing in House seats since 1948, and the largest midterm swing since 1938. The Republicans’ 63 4

seat pick-up wrested control of the chamber from Democrats, positioning the victors to act on their campaign promises. And that is precisely what they did.

In advance of the new session, the Republican transition team and leadership-elect circulated a memo to all members of the 112th Congress outlining a proposed change to House rules along the lines proposed in the Pledge. On January 5, 2011, Majority Leader Cantor announced on the 5

chamber floor the arrival of “a Constitution-centered House,” marked by the reading of the Constitution and the codification of the rules change identified in the leadership-elect’s memo. Accordingly, the House adopted an amendment to the Standing Rules, adding the following text to clause 7 of Rule XII:

A bill or joint resolution may not be introduced unless the sponsor submits for printing in the Congressional Record a statement citing as specifically as practicable the power or powers granted to Congress in the Constitution to enact the bill or joint resolution. The statement shall appear in a portion of the Record designated for that purpose and be made publicly available in electronic form by the Clerk. 6

For those cases in which a Senate bill or joint resolution would be considered by the House, the chair of a committee of jurisdiction was permitted, though not required, to introduce a statement as if he or she were the sponsor. Hence, since January 5, 2011, every bill and joint resolution introduced in the House of Representatives has been accompanied by a Constitutional Authority Statement (CAS) identifying the source of congressional power to so act.

James Ceaser, “The 2010 Verdict,” REAL CLEAR POLITICS, Nov. 10, 2010 (http://4

www.realclearpolitics.com/articles/2010/11/10/the_2010_verdict_107908.html).

"New Constitutional Authority Requirement," Speaker-Designate Boehner et al., Dec. 5

17, 2010 (http://www.washingtonpost.com/wp-srv/politics/documents/ConstitutionalAuthorityMemofor112thCongress.pdf).

HOUSE RULE XII 7(c)(1), 112th Congress. Hereinafter, “House Rule XII” or “Rule 6

XII.”

http://www.realclearpolitics.com/articles/2010/11/10/the_2010_verdict_107908.html

http://www.washingtonpost.com/wp-srv/politics/documents/ConstitutionalAuthorityMemofor112thCongress.pdf


Recent articles by Hanah Volokh and former Senator Russ Feingold 7 8

have explored the theoretical motivations of and potential for this rules change. Though Volokh surveys the CAS submitted over the first four months of the 112th Congress, her primary motivation is to connect Rule XII to the theoretical literature on constitutional interpretation and the congressional role therein. As she admits, “The goal of the present Article is not to reach empirical conclusions, but to explore theoretical questions with some real-world illustrations.” Hence, while the statements she collected 9

serve to furnish a few very general descriptive statistics, she provides 10

neither aggregate empirical results nor any systematic analysis of the statements submitted during the period she examined. For his part, Feingold is concerned with what he sees as the deficiencies of Rule XII, arguing that it is “unnecessarily bureaucratic, under inclusive, fails to capture the importance of constitutional interpretation for all members of Congress,” 11

and ignores principles that limit—not just those that justify—congressional action. Nonetheless, he thinks the rule is promising enough to conclude his article with a proposed language for a similar Senate Rule. 12

Hanah Metchis Volokh, Constitutional Authority Statements in Congress, 65 FL. L. 7

REV. 174 (2013).

Russ Feingold, The Obligation of Members of Congress to Consider Constitutionality 8

While Deliberating and Voting: The Deficiencies of House Rule XII and a Proposed Rule for the United States Senate, 67 VAND. L. REV. 837 (2014).

Volokh, supra note 7, at 178.9

Id., at 194-204.10

Feingold, supra note 8, at 102.11

Some of the breadth and depth of Feingold's argument is captured by his description 12

of the Senate rule he proposes: “In Section I, members are directed to consider the constitutionality of legislation when voting on a bill or an amendment by considering both the constitutional source of authority and the bounds of such authority found elsewhere in the Constitution. Section II similarly requires Senators to consider sources of authority and bounds of that authority when submitting legislation, and additionally requires a statement summarizing this constitutional analysis to be submitted when a bill is placed on the legislative calendar or an amendment is offered for consideration. The statement of constitutional authority and analysis is therefore only required when it is somewhat likely that a bill or amendment will be debated and voted upon” (supra note 8, at 129; emphasis in the original).


Feingold’s is a valuable contribution to the growing literature on Constitutional Authority Statements, not least because it represents prominent bipartisan support for a rule that, to this point, has been put in place and preserved only by Republicans. But because he doesn’t collect any data of his own, he is forced to rely on Volokh’s essay for its empirical content, such as it is. Consequently, he claims, citing her study, that, “The early scholarship on these new ‘Constitutional Authority Statements’ shows substantial compliance with the new rule with such statements ‘suddenly flowing through Congress at the rate of several hundred per month.’” But 13

in light of the data Volokh presents, it is unclear whether even this minimal conclusion is warranted because the statements she collected weren’t evaluated for compliance with Rule XII, much less any further standards for the quality of their constitutional content. Thus, while interesting questions about the theoretical underpinnings and possible future of the new House rule have received valuable scholarly attention, little has been done to 14

connect those considerations to the ever-expanding empirical record by which they could be evaluated. In short, though the relevant literature satisfactorily addresses what House Rule XII could do to congressional behavior and discourse, it is comparatively silent about what it has in fact done.

This Essay addresses that latter question. It asks, what is the quality and substance of constitutional discourse induced by House Rule XII? Accordingly, this inquiry is both evaluative—chronicling the simultaneous diversity and similarity among CAS—and analytic—elucidating what the empirical record reveals about constitutional discourse in the House of Representatives. Drawing on a unique dataset of all CAS submitted between January and April 2012, I coded representatives’ statements according to their content. Employing three threshold classifications—Sufficient, Robust, and Sophisticated—I then generated a performance measurement, which I term the Constitutional Discourse Score (CDS). This data was then used to assess performance at the individual and group levels. An analysis of the threshold classifications and CDS across the House, between parties,

Feingold, supra note 8, at 107 (internal citation omitted), citing Volokh, supra note 13

7, at 174. It isn’t clear on what Feingold bases his “substantial compliance” argument, as the cited page in Volokh substantiates only the excerpted quotation.

In addition to Volokh, supra note 7, and Feingold, supra note 8, for a general 14

treatment of constitutional questions surrounding Rule XII, see Marc Spindelman, House Rule XII: Congress and the Constitution, 72 OHIO ST. L. J. 1317 (2011).


and between Tea Party Caucus members and non-members yields two 15

findings. First, constitutional discourse related to authority statements is both minimal and formalistic, and it frequently falls short of Rule XII’s requirements. And second, Republicans consistently outperform Democrats, while Tea Party Caucus members outperform non-members, across all levels of evaluation.

The Essay proceeds as follows. Part I outlines and explains the research design used to collect and code Constitutional Authority Statements. The results of the coding and performance measurement assessment are presented in Part II and analyzed in Part III. The Essay concludes with a summary of the findings and a brief reflection on their implications for both the prospects of House Rule XII and the scholarly treatments thereof.

I. RESEARCH DESIGN

To date, over 13,000 CAS have been entered into the Congressional Record. The most extensive survey to date consists of 1,709 CAS drawn from the first four months of the 112th Congress. However, as noted 16

above, that study stopped short of systematically analyzing the statements collected. To provide a comparable basis for analysis, I created a unique dataset of all CAS submitted between January and April 2012, the first four months of the Second Session of the 112th Congress. Table 1 presents a profile of the dataset.

The CAS (1,571 total) were first coded for constitutional content, defined as consisting of the following components: (a) the constitutional provision(s) cited, (b) included detail(s) about a constitutional provision, (c) an argument connecting the submitted bill to the provision cited, (d) an interpretation of a constitutional provision, (e) reference(s) to other branches or bodies of government (e.g., the Supreme Court, states), and (f) reference(s) to previous actions of a government branch or body. Based on this information, the statements were then coded as satisfying or falling

The selection of the Tea Party Caucus as a unit of analysis was prompted by the 15

widespread perception that the Tea Party, over and above the Republican Party, was committed in some substantive sense to constitutional discourse and governance. See Philip Rucker and Krissah Thompson, “Two new rules will give Constitution a starring role in GOP-controlled House,” WASHINGTON POST, Dec. 30, 2010, available at http://www.washingtonpost.com/wp-dyn/content/article/2010/12/29/AR2010122901402.html?sid=ST2010122901409 (last accessed Nov. 26, 2013). Throughout the Tables and Figures in this Essay, the Tea Party Caucus is abbreviated “TPC” and non-Tea Party Caucus Republicans “Non-TPC.”

Volokh, supra note 7.16

http://www.washingtonpost.com/wp-dyn/content/article/2010/12/29/AR2010122901402.html?sid=ST2010122901409


short of the following three threshold classifications, which in brackets specify the components of constitutional content that they incorporate:

SUFFICIENT: CAS identifies a discrete power pursuant to which the submitted bill or joint resolution purports to act. [(a)]

ROBUST: CAS references, describes, or quotes a constitutional provision. [(b)]

SOPHISTICATED: CAS provides some form of constitutional argumentation, specifically by (1) connecting the submitted bill or resolution to a constitutional provision, (2) offering an interpretation of a constitutional provision, or (3) referencing (a) a coordinate branch or government body, or (b) a previous action thereof. [(c)-(f)]

It should be clear from these definitions that there is a great degree of overlap among these categories. Very often a statement that references, describes, or quotes a constitutional provision (i.e., is Robust) also clearly identifies that power (i.e., is Sufficient). Likewise, statements frequently identify a constitutional provision by describing, referencing, or quoting it, while not explicitly citing the provision chapter and verse. Thus, statements that use a description or quotation in place of an Article-Section-Clause citation are classified as Robust because they clearly (though implicitly) identify a discrete constitutional provision and supply descriptive information above the bare requirements of Rule XII. Nonetheless, the distinction between Sufficient and Robust is warranted because Robust CAS supply additional, constitutionally-relevant information that Sufficient CAS do not. Similarly, Sophisticated CAS—those that contain the highest level of constitutional discourse—are almost always also Sufficient and Robust. However, in very few instances a constitutional argument is presented

TABLE 1. PROFILE OF CAS DATASET

BILLS JOINT RESOLUTIONS TOTAL

ALL CAS 1,560 11 1,571

DEMOCRATS 715 1 716

REPUBLICANS 845 10 855

NON-TPC 622 7 629

TPC 223 3 226


absent a clear provision citation or description. In these cases, the statements would be coded as Sophisticated but not Sufficient or Robust, respectively. Additionally, while there are many ways in which a statement could qualify as Sophisticated, a statement need satisfy only one of the four qualifications identified above to be so classified.

These three categories are coded dichotomously, such that ‘1’ is assigned if the CAS meets the threshold definition and ‘0’ if it does not. Accordingly, each CAS can score a maximum of three and a minimum of zero points. The resulting cumulative value constitutes the central conceptual construct of this study, which is termed and defined as follows:

CONSTITUTIONAL DISCOURSE SCORE (CDS): sum total of each CAS’s Sufficient, Robust, and Sophisticated scores.

The CDS is intended to provide a performance scale that reflects the degree of constitutional discourse a submitted statement expresses. The range of scores (0-3) tracks the constitutive elements of the score. Therefore, a 1 CDS can be interpreted as a statement that meets the bare requirements of Rule XII, while a 3 CDS reflects a statement that meets those requirements, provides additional detail, and supplies constitutional argumentation along the lines cited in the definition of Sophisticated.

Consider, for example, the following three statements, which can be considered exemplars of each threshold category:

(1) “Article I, Section 8, Clause 3.”17

(2) “Article 1, Section 8, Clause 3, which gives Congress the power ‘to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.’”18

(3) “The constitutional authority on which this bill rests is the explicit power of Congress to regulate commerce in and among the states, as

CAS for H.R. 3777, Rep. Don Young, Jan. 17, 2012. 17

CAS for H.R. 4951, Rep. Bill Owens, Apr. 26, 2012.18


enumerated in Article 1, Section 8, Clause 3, the Commerce Clause, of the United States Constitution.”19

As these CAS illustrate, statements citing the same constitutional provision can come in a variety of forms. Statement (1) clearly cites a discrete provision, satisfying the basic requirements of Rule XII. Accordingly, it is classified as Sufficient. Beyond clearing the sufficiency hurdle, statement (2) adds further detail, quoting the relevant text of the Constitution. It, therefore, is classified as Robust. Finally, statement (3) not only fulfills the first two threshold requirements, clearly citing and describing a constitutional provision, it also adds an additional feature: a gloss on the referenced provision. Here, Rep. Luetkemeyer (R-MO) provides an interpretation of the Commerce Clause, stating that Congress has “the explicit power…to regulate commerce in and among the states,” a clear modification of the Constitution’s enumeration of the power “to regulate commerce…among the several states.” For these reasons, this statement is classified as Sophisticated. Table 2 shows how these classifications would 20

be translated into Constitutional Discourse Scores for the exemplar statements cited above.

In addition to the three threshold categories, each CAS is coded for the presence of errors. What qualifies as an error can be understood by comparison to a similar but distinct classification, Insufficient CAS.

CAS for H.R. 4459, Rep. Blaine Luetkemeyer (R-MO), Apr. 19, 2012. Given the 19

diversity of ways in which a statement can qualify as Sophisticated, an additional example is warranted. In the following statement (CAS for H.R. 3788, Jan. 18, 2012), Rep. Danny Davis (D-IL) offers an argument connecting the submitted bill to the constitutional provision cited (criterion (c)), in the course of which he references a governing institution (criterion (e)):

Section 5 of the 14th Amendment to the Constitution and Congress’ plenary power under Article I, Section 8, Clause 3 of the Constitution (commonly known as the "commerce clause"), in order to ensure that States and political subdivisions thereof do not discriminate against providers and consumers of mobile services by imposing new selective and excessive taxes and other bur- dens on such providers and consumers.

Rep. Luetkemeyer’s CAS was chosen for an additional reason. Beyond illustrating 20

what kind of statement is coded as Sophisticated, it also shows that my coding scheme is intentionally deferential. That is, while some may argue that Luetkemeyer was simply in error, I give him the benefit of the doubt and interpret the statement as constitutional argumentation. In addition to constituting charitable interpretation, this approach also acknowledges the limitations of the present inquiry. A thorough evaluation of the validity of a CAS would require ascertaining its relationship to the bill or joint resolution it accompanies. Valuable though that effort would be, it is beyond the scope of this study.


Whereas an Insufficient CAS falls short of the threshold requirement of Rule XII (i.e., it doesn’t clearly cite a discrete constitutional provision), an erroneous statement may cite a provision but do so incorrectly. Perhaps more so than any other classification, the development of the error category had a strong inductive component. It wasn’t clear what kind of errors were present in the authority statements until they were culled from the Congressional Record and evaluated. It is thus entirely fortuitous, though helpfully concise, that the errors fell into four general classes.

The first, and most egregious, class of errors entails citations to or invocations of nonexistent constitutional provisions. In these cases, the CAS refers to a provision that simply does not exist, such as “Article I, sec. 17.” Second, there are statements that misidentify a constitutional 21

provision. Here, the CAS names or describes one provision but provide a direct citation for another. For example, the CAS that accompanied H.R. 4774, submitted by Rep. Mike Ross (D-AR), cited “the power of Congress to lay and collect duties and to regulate Commerce with foreign Nations, as enumerated in Article I, Section 9.” As the relevant powers are actually located in Article I, Section 8, Clauses 1 and 3, respectively, this is a clear error of misidentification. The third class of errors is incomplete statements, in which the citation for a clearly referenced provision is omitted. Included in this class are statements like Rep. Mick Mulvaney’s (R-SC) reference to Congress’ “ability to enact legislation necessary and proper to effectuate its purposes in taxing and spending,” which cited “Clause 1 of Section 8 of Article I” but not Clause 18 of the same article (the Necessary and Proper 22

Clause). The final class of errors is a catch-all category termed “Other.” Statements in this group contain a clear deficiency that is not covered by the three other error categories, though there is a high degree of internal cohesion among the statements included in this group. The most common

CAS for H.R. 4653, Rep. Sanford Bishop, Jr., Apr. 25, 2012.21

CAS for H.R. 4206, Mar. 19, 2012.22

TABLE 2. SAMPLE CAS EVALUATION

SUFFICIENT ROBUST SOPHISTICATED CDS

STATEMENT (1) 1 0 0 1




errors in this class are misquotations and failures to included vital information alluded to in the statement.23

II. RESULTS

This Section presents the results of the research design outlined in Section I. I begin with a discussion of the threshold classifications, turning then to the CAS errors. This is followed by an analysis of the Constitutional Discourse Scores generated from the threshold classifications. I conclude with a discussion of the substance of Sophisticated authority statements.

A. CAS Threshold EvaluationThe results of the threshold classification are presented in Table 3. The

first thing to note is that just under one-fifth (19%) of all CAS fall short of sufficiency, meaning that they don’t clearly cite a discrete constitutional

For example, the CAS Rep. Mark Amodei (R-NV) submitted with H.R. 4039, Feb. 23

15, 2012, read (in relevant part), "The constitutional authority of Congress to enact this legislation is provided by Article I, Section of the United States Constitution..." The omission of the section number resulted in its classification as an error.

TABLE 3. EVALUATION OF CONSTITUTIONAL AUTHORITY STATEMENTS

INSUFFICIENT SUFFICIENT ROBUST SOPHISTICATED TOTAL

ALL 19.0% 28.8% 46.3% 5.9% 100.0%

299 452 727 93 1571

DEMOCRAT 27.7% 32.8% 37.8% 1.7% 100.0%

198 235 271 12 716

REPUB. 11.8% 25.4% 53.3% 9.5% 100.0%

101 217 456 81 855

NON-TPC 11.6% 31.3% 50.4% 6.7% 100.0%

73 197 317 42 629

TPC 12.4% 8.8% 61.5% 17.3% 100.0%

28 20 139 39 226


provision. The vast majority of insufficient statements cite “Article I, Section 8,” with no further detail. While this authority statement does identify the list of Congress’ enumerated powers, it does not identify the power pursuant to which the bill or resolution accompanying the CAS purports to act, as stipulated by Rule XII. More than a quarter of 24

statements are Sufficient (28.8%), while nearly half rise to the level of Robust (46.3%). The remainder, just 5.9% of all CAS submitted, qualify as Sophisticated.

Figure 1 provides a clear visual depiction of the distribution of threshold classifications. Looking at the CAS evaluations by sub-group, four observations warrant discussion. Primarily, the largest single classification for each sub-group is Robust, meaning that they not only cite a specific provision but also provide additional detail. Second, while slightly more than one-in-ten Republican statements are insufficient (11.8%), nearly three-in-ten Democratic statements (27.7%) fail to clearly cite a discrete constitutional provision. Third, Republicans have a far greater percentage of Robust and Sophisticated CAS than Democrats (62.8% vs. 39.5%), and a correspondingly lower proportion of Sufficient statements (25.4% vs.

The decision to code such statements in this way accords with a sentiment both popular 24

and academic. For example, in response to Rep. Duncan Hunter’s (R-CA) citation of Article I, Section 8 for a bill regulating charter schools (H.R. 2218, Sep. 2011) Akhil Amar said, “Well, that’s everything…So that’s not specific.” David A. Fahrenthold, Congress finds, and lists, meaning in Constitution, WASHINGTON POST, Sep. 16, 2011 (http://www.washingtonpost.com/politics/congress-finds-and-lists-meaning-in-constitution/2011/09/14/gIQA1VQzXK_story.html).

FIGURE 1. DISTRIBUTION OF THRESHOLD CLASSIFICATIONS

Perc

ent o

f CA

S

010203040506070

All CAS Democrat Non-TPC Republican TPC

Insufficient Sufficient Robust Sophisticated

http://www.washingtonpost.com/politics/congress-finds-and-lists-meaning-in-constitution/2011/09/14/gIQA1VQzXK_story.html


32.8%). The differences just noted between Republicans and Democrats parallel those between Tea Party Caucus members and non-members: Tea Partiers have greater percentages at the high end (Robust and Sophisticated) and smaller at the low end (Sufficient). The two groups have a comparable percentage of Insufficient statements. Finally, for all groups a majority of total statements fall into the middle two categories, Sufficient and Robust. This is most true for Republicans, for whom 78.7% of statements are included in these two categories. Though technically true for Tea Party Caucus members, grouping Sufficient and Robust statements conceals the fact that 61.5% of their CAS are Robust while just 8.8% are Sufficient. And while 70.6% of Democratic CAS are either Sufficient or Robust, 60.5% are either Sufficient or Insufficient, further emphasizing the relative disparity between Democratic and Republican performance.

B. ErrorsTable 4 presents the results of the error coding. As previously 25

explained, all errors were of four general types. The most common error involves the citation of a nonexistent constitutional provision (66.3%) followed in decreasing order by misidentifications (16.3%), incomplete statements (9.8%), and the catch-all category of other errors (7.6%). At 5.9%, the percentage of all errors is equal to the percentage of Sophisticated CAS for the whole sample. The sub-group analysis of this data reveals a striking disparity. Whereas a shade more than 2% of Republican statements are erroneous, a full tenth of Democratic statements contain some type of flaw. This means that more than six times as many Democratic statements were in error as were Sophisticated. Moreover, all 61 CAS that cite a nonexistent provision were submitted by Democrats. Republicans lead their party rivals in the Incomplete and Other categories, which contain the bulk of the party’s errors. Tea Party Caucus members and non-member Republicans committed a comparable percentage of errors, with similar distributions across the four categories.

Not included in the data reported in Table 4 nor discussed in this section are arguable 25

facial errors, the most common of which was the citation of Article I, Section 1, which reads, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” Though this section references “legislative Powers,” it is not traditionally understood to grant or identify any specific powers pursuant to which Congress can act. Of the 28 such instances, 27 were submitted by Democrats. Including these in the error count would have boosted the Democratic error rate to 14.2%.


C. Constitutional Discourse ScoresThe CAS classification presented above provides the basis for the

generation of Constitutional Discourse Scores (CDS), the cumulative total of threshold classifications. In addition to a CDS based on all group and sub-group authority statements (Statement Mean), I calculated Legislator Means by averaging the discourse scores for all statements submitted by individual legislators. Doing so ensures that the overall and sub-group means are neither inflated nor depressed by the performance of individual legislators. Further, it allows us to speak of Democrats, Republicans, and Tea Party Caucus members and non-members not only as distinct groups but also as individuals (albeit abstracted, average individuals). The results 26

are presented in Table 5.The Statement Mean for all House representatives is 1.39, a point

between Sufficient and Robust. In practical terms, this means that the

This is particularly important because, as either knowledge of sponsorship behavior 26

indicates or a perusal of the raw data reveals, legislators often submit many (often related) bills at once, with the same CAS for each individual submission. Thus, a particularly good or bad statement for a large group could skew the overall and sub-sample means.

TABLE 4. CONSTITUTIONAL AUTHORITY STATEMENT ERRORS

Nonexistent Prov. Mis-ID Incomp. Other Total

Error Rate

ALL 66.3% 16.3% 9.8% 7.6% 100% 5.9%

61 15 9 7 92

DEMOCRAT 82.4% 14.9% 1.4% 1.4% 100% 10.3%

61 11 1 1 74

REPUB. 0% 22.2% 44.4% 33.3% 100% 2.1%

0 4 8 6 18

NON-TPC 0% 21.4% 42.9% 35.7% 100% 2.2%

0 3 6 5 14

TPC 0% 25.0% 50.0% 25.0% 100% 1.8%

0 1 2 1 4


average CAS fulfills the minimum requirement of Rule XII by clearly citing a discrete constitutional provision. It does not, however, exceed the Robust threshold, at which point it would have provided further detail about the provision cited. As this brief description makes clear, it is difficult to speak of Constitutional Discourse Scores in terms of individual statements. It is unclear what a fraction of a point means in practical terms for any specific CAS. For this reason, it is best to interpret these scores as party and legislator tendencies. Thus, the All Representative Statement Mean shows that the House tendency is to provide more than a Sufficient statement, indicating that a fair number of CAS exceeded the bare requirements of Rule XII.

Looking at the sub-group Statement Means, we see an interesting difference. The All Representative Statement Mean conceals a significant performance gap between Republicans and Democrats, a difference that parallels the finding about threshold classifications discussed above. The 27

former score well above the 1.39 All Statement CDS while the latter score much lower. Indeed, the Republican score indicates that the average GOP authority statement is closer to Robust than Sufficient, whereas the opposite is true for Democrats. Within the Republican Party, a familiar pattern emerges: Tea Party Caucus members outperform non-members, with a cross-group difference of .32. At the extremes, between Democrats and Tea Party Caucus members, the difference (.71) is nearly three-quarters of a CDS point.

Across all groups and sub-groups, Legislator Means are lower than the Statement Means. In concrete terms, this means that in the House as a whole, as well as at the party and sub-party levels, there were a handful of high-performing legislators who inflated their group and sub-group scores. The difference between the Statement Mean and the Legislator Mean is approximately the same for Democrats (.08) and Republicans (.07). Within

See supra, 11-13.27

TABLE 5. CONSTITUTIONAL DISCOURSE SCORES

ALL DEMOCRAT REPUB. NON-TPC TPC

STATEMENT MEAN

1.39 1.13 1.60 1.52 1.84

LEGISLATOR MEAN

1.31 1.05 1.53 1.49 1.68


the Republican Party, the high performers had a larger effect among Tea Party Caucus members (.16) than non-members (.03).

Table 6 presents the pairwise differences of all groups along with an indication of the statistical significance of those differences. The bolded diagonal line reports the Statement Mean-Legislator Mean difference for each group. (The statistical significance for these differences is omitted.) The values in italics above the bolded diagonal are Legislator Mean differences between all groups, while the values below the bolded diagonal are Statement Mean differences. Between parties, Republicans have almost a half-point advantage at the legislator level (.48). And though smaller than the difference at the Statement Mean level, the difference between Democrat and Tea Party legislators still exceeds six-tenths of a point (.63). The bottom line is that at both the statement and legislator levels, the same pattern holds true: Republicans outperform Democrats and Tea Party Caucus members outperform non-members.

D. The Substance of Sophisticated DiscourseThe question motivating this inquiry concerns not only the quality of

constitutional discourse in the House, which the previous sections have examined, but also its substance. For two of the three threshold classifications—Sufficient and Robust—the substance is clear prima facie. For statements that fall into these categories, a constitutional provision is cited or detail about a constitutional provision is supplied, respectively. However, to ascertain the discursive substance of the third class, Sophisticated CAS, we must look a little deeper. Following the definition of

TABLE 6. CDS GROUP DIFFERENCES

ALL DEM. REP. NON-TPC TPC

ALL 0.08 0.26‡ 0.22‡ 0.18† 0.37‡

DEM. 0.26‡ 0.08 0.48‡ 0.44‡ 0.63‡

REPUB. 0.21‡ 0.47‡ 0.07 0.04 0.15

NON-TPC 0.13‡ 0.39‡ 0.08* 0.03 0.19

TPC 0.45‡ 0.71‡ 0.24‡ 0.32‡ 0.16

* p < .10† p < .05‡ p < .01


Sophisticated set forth in Part I, Sophisticated statements were coded as 28

(1) connecting the submitted bill or resolution to a constitutional provision; (2) offering an interpretation of a constitutional provision; or (3) referencing (a) a coordinate branch or government body, or (b) a previous action thereof. Table 7 presents the results.

At 93 total statements, Sophisticated CAS comprise 5.9% of all authority statements, a proportion equal to that of erroneous statements. A vast majority (76.3%) of Sophisticated statements includes some type of constitutional interpretation. Examples include Rep. Howard Berman’s (D-CA) argument that Article I, Section I “includes an implied power for the Congress to regulate the conduct of the United States with respect to foreign affairs,” or Rep. Bono’s (R-FL) statement characterizing Article I, Section 29

8, Clause 3 as granting Congress the power to “prescribe by statue the procedures which are reasonably necessary to effectuate its constitutional purpose of regulating commerce among the several states.” Slightly less 30

than a quarter (23.7%) of Sophisticated statements include an argument connecting the substance of the submitted bill or resolution to a cited provision. Though this could be as simple as stating the bill’s purpose in conjunction with the justifying provision, only 22 statements (submitted by

See supra, 6-9.28

CAS for H.R. 4229, Mar. 21, 2012. 29

CAS for H.R. 4059, Feb. 16, 2012.30

TABLE 7. SOPHISTICATED CONSTITUTIONAL AUTHORITY STATEMENTS

CONST’L. CONNECTION

CONST’L.INTERP.

BRANCH OR BODY REF.

ACTION REFERENCE

TOTAL*

ALL CAS 23.7% 76.3% 2.2% 5.4% —

22 71 2 5 93

DEMOCRATS 8.3% 83.3% 0.0% 8.3% —

1 10 0 1 12

REPUB. 25.9% 75.3% 2.5% 4.9% —

21 61 2 4 81

* Totals do not reflect the sums of categories because of multiple forms of sophisticated discourse within individual authority statements.


12 congresspersons) did so. The only Sophisticated statements to reference a government branch or other governing body either adverted directly to the states or indirectly to the Supreme Court. Sophisticated CAS that 31 32

referenced a previous action of a government body cited Supreme Court decisions and legislative practice or enactments. In keeping with the 33 34 35

pattern evident in both the general threshold evaluation and CDS evaluation, Republicans again outperform Democrats, this time by a margin of almost 7-to-1. It follows from an advantage of this magnitude that the overall pattern in Sophisticated CAS closely approximates that of Republicans’ Sophisticated statements. While the general trend (i.e., high concentration of interpretive sophistication) holds true for Democratic CAS, their small number of qualifying statements distorts the subsidiary trends (i.e., decreasing concentrations from Constitutional Connection to Branch/Body Reference to Action Reference). In the final analysis, though, all 36

conclusions about the sophistication of constitutional discourse in the House must be tempered by the recognition that Sophisticated CAS constitute a very small proportion of those submitted. They are the exception to the rule of constitutional discourse in the House.

CAS for H.R. 4160, Rep. Todd Rokita, Mar. 7, 2012; and H.R. 4224, Rep. Paul 31

Broun, Mar. 20, 2012.

CAS for H.R. 4149, Rep. Steve Southerland, Mar. 6, 2012; and H.R. 4198, Rep. Paul 32

Gosar, Mar. 16, 2012.

Ibid. 33

CAS for H.R. 4335, Rep. Nick Rahall, Mar. 29, 2012.34

CAS for H.R. 4180, Rep. Kevin Brady, Mar. 8, 2012; and H.R. 4198, supra note 32.35

In addition to the results reported, there is a group of 7 identical statements, all 36

submitted by Democrats, that have features of sophistication while also falling short of both the Sufficient and Robust thresholds. Accordingly, for the purposes of the Constitutional Discourse Score, they do not qualify as Sophisticated. Nonetheless, these CAS warrant brief mention because of the marked deference of their constitutional discourse. After broadly referencing “the power granted to Congress under Article I and its subsequent amendments” these statements continue on to invoke the Judiciary’s role in clarifying and interpreting congressional powers. Rather than present their own understanding or interpretation of the constitutional provision they had in mind, these congresspersons were content to defer to the Supreme Court’s understandings and interpretations.


III. ANALYSIS

In light of the data gathered and analyzed in this study, what can be said about the constitutional discourse induced by House Rule XII? If there is any merit to the conceptual categories and evaluative scheme I’ve employed, two general conclusions are warranted. For ease of reference in the discussion that follows, Figure 2 re-presents the threshold classification data as cumulative percentages.

First, on the whole constitutional discourse in the House is best characterized as minimal and formalistic, and it frequently falls short of Rule XII’s requirements. As the Constitutional Discourse Score analysis shows, for all groups and sub-groups the average CAS does little more than simply cite a discrete constitutional provision. What’s more, nearly one-fifth (19%) of all statements fail to meet the minimum requirements of Rule XII if it’s understood to require the clear identification of at least one specific power-granting constitutional provision. Judged by admittedly charitable standards, House representatives don’t perform too terribly well. While there are notable exceptions, for most representatives most of the time, bare compliance with the rule is the most that can be expected. 37

This is consistent with Volokh’s definition of compliance, supra note 7, at 198-199.37

FIGURE 2. DISTRIBUTION OF THRESHOLD CLASSIFICATIONS

Perc

ent o

f CA

S

0

25

50

75

100

All Democrat Non-TPC Rep. Republican TPC

Insufficient Sufficient Robust Sophisticated


Second, there is a significant difference in constitutional discourse both between parties and within the Republican Party. Whereas the majority of Republican statements are either Robust or Sophisticated, over 50% of Democratic statements are either Insufficient or Sufficient. The partisan discrepancy is particularly noticeable on the individual legislator level, where 37% of Democratic legislators have a CDS below 1, meaning that on average they do not comply with the requirements of Rule XII. The same is true for 20% of Republicans, a lower but nonetheless surprising rate of non-compliance. Another difference between parties is revealed by the CAS that were coded as Errors, where the Democratic total is nearly five times that of Republicans. Further, only Democrats cited non-existent constitutional provisions, at a rate in excess of one out of twelve (8.5%). This means that five times as many CAS submitted by Democrats cited a non-existent constitutional provision as qualified as Sophisticated!

In light of these findings, particularly those concerning the large number of non-compliant and erroneous statements, it is necessary to revisit the conclusion, drawn by Feingold from Volokh’s study, that there is substantial compliance with House Rule XII. At the outset of this Essay I noted that 38

the empirical record, insufficiently developed as it was, could not support this conclusion because the requisite empirical and analytical work hadn’t been done. After evaluation and analysis, it’s clear that the empirical record does not support the substantial compliance conclusion because the data collected reveal the contrary. Moreover, the findings presented here compel us to view in a different light the hopes expressed by Feingold, that further refinements to the rule could elicit still better constitutional discourse. Perhaps additional requirements, or more assiduous enforcement, are necessary to elicit even compliance.

One explanation for the differences between parties is that Republicans are simply better at constitutional discourse than Democrats. In terms of the evaluative scheme employed in this study, that is a defensible conclusion to draw. However, that does not mean that it’s the only explanation. An alternative explanation could be that Republicans are better at following a rules change enacted by Republicans than are Democrats. Call it the Party Rules explanation: legislators are more likely to comply with rules enacted by their own party than by the other party. There is undoubtedly some truth to this interpretation. And, indeed, the findings presented in this Essay have important implications for studies of House rule formulation, change, and compliance. Nonetheless, what the Party Rules explanation doesn’t account for is two-fold. First, there is a trend, modest though nonetheless pronounced, towards higher discourse scores as legislators become more

Feingold, supra note 13.38


conservative. Figure 3 presents the CDS and ideological position of each legislator that submitted a CAS. Thus, there is a clear cross-party trend, 39

revealed though perhaps not explained by ideological difference, that both transcends and intersects with party identification.

Pressing this point further, we come to the second reality that the Party Rules explanation doesn’t account for, namely, it can’t explain within-group differences. Consider, for example, the differences found between Tea Party Caucus members and non-members. Though both sub-groups would fall into the frequently compliant camp, as predicted by the Party Rules explanation, it isn’t clear why one group, similar in many respects beyond caucus membership, would perform better. Similarly, the Party Rules view provides no explanation for the diverse performance of Democrats, a fair number of whom routinely submitted statements indistinguishable from their Republican counterparts. While many certainly did perform quite poorly, there were a number who consistently met and exceeded the sufficiency threshold. Again, it isn’t clear how, from the standpoint of party-based rule compliance alone, these differences could be explained.

As a final matter, we would do well to consider what role ideology might play in the differential CAS performance revealed by this study. If the

The ideological position of each legislator was determined using DW-NOMINATE 39

Scores. These scores range from most liberal (-1) to most conservative (1). For a general background on this measurement, see Keith T. Poole and Howard Rosenthal, A Spatial Model for Legislative Roll Call Analysis, 29 AMER. J. POL. SCI. 357-384 (1985).

FIGURE 3. CDS BY LEGISLATOR IDEOLOGY

CDS

0

0.5

1

1.5

2

2.5

3

DW-NOMINATE Score

-1 -0.8 -0.6 -0.4 -0.2 0 0.2 0.4 0.6 0.8 1


differences between Republicans and Democrats, as well as between Tea Party Caucus members and non-members, is (at least in part) a function of member ideology, what explains that function? It seems quite clear a priori that House Rule XII, as currently formulated, was intended to both highlight and promote a certain kind of constitutional understanding, one that took seriously the limits implied by the Constitution’s enumeration of congressional powers. After all, the impetus for amending the Standing 40

Rules to require Constitutional Authority Statements was the widespread Republican perception that Democrats had transgressed Congress’ enumerated powers with the passage of the Patient Protection and Affordable Care Act. Moreover, the Rule’s requirement that a discrete provision be cited for every contemplated legislative action risks implying what has been called a “cake recipe” approach to the Constitution, whereby that document specifies exactly what can—and by clear implication cannot—be done by the People’s representatives in Congress. It is precisely this 41

shortcoming in the formulation of Rule XII that led Feingold to suggest his amendment to the Rule, namely that constitutional limits corresponding to individual rights and liberties—in addition to constitutional powers—should be a legitimate cause for legislative action specified in Constitutional Authority Statements.

What is at issue here is a fundamental question that Constitutional Authority Statements were intended to answer: What is the source of

For a cogent rebuttal of this view, see Richard Primus, The Limits of Enumeration, 40

124 YALE L. J. 576 (2014) (arguing that the internal limits canon, which holds that “the powers of Congress must always be construed as authorizing less legislation than a general police power would,” is wrong). For a response to this argument, see Kurt Lasch, The Sum of All Delegated Power: A Response to Richard Primus, The Limits of Enumeration, 124 YALE. L. J. FORUM 180 (2014) (arguing that “the sum of all delegated federal power amounts to something less than all possible delegated power”).

Fahrenthold, supra note 24. A 2011 POLITIFACT investigation revealed that the “cake 41

recipe” approach is prone to gore Republican and Democratic oxen alike. As Abby Brownback and Louis Jacobson discuss in their piece, Checking on the GOP’s constitutional promise, PolitiFact, Mar. 18, 2011 (http://www.politifact.com/truth-o-meter/article/2011/mar/18/gops-constitution-promise/), Rep. Joseph Pitts’ (R-PA) proposed “Protect Life Act” (H.R. 358, Jan. 20, 2011) elicited opposition from several Democrats for failing to cite a constitutional provision in the CAS. (The authority statement for the bill reads: “Congress has the power to enact this legislation pursuant to the following: The Protect Life Act would overturn an unconstitutional mandate regarding abortion in the Patient Protection and Affordable Care Act.”) The dispute escalated to the point that Reps. Henry Waxman (D-CA) and Frank Pallone, Jr. (D-NJ) filed a letter of protest with Rep. Fred Upton (R-MI), the chairman of the committee in which the bill was being considered.

http://www.politifact.com/truth-o-meter/article/2011/mar/18/gops-constitution-promise/


constitutional authority? Is it discrete, textual provisions that clearly authorize congressional action? Or is it something more than that—perhaps the Preamble’s commitment to forming a “more perfect Union” or a 42

capacious notion of what the “general welfare” requires? Though House 43

Rule XII captures some of this debate, it excludes much of significant democratic and constitutional import. Constitutional authority is undeniably a function of textually authorized powers; but it is also most certainly about the ends for which those powers were granted to Congress. 44

CONCLUSION

House Rule XII survived the transition from the 112th to the 113th and now the 114th Congress. And, with the GOP takeover of the Senate following the 2014 elections, it is now perhaps more likely that the Upper Chamber will follow the lead of the Lower Chamber. Nonetheless, it must 45

be acknowledged that the rule has not yet been adopted by Democrats. Perhaps only then, when Democrats regain control of the House of Representatives and are in position to amend or preserve the Standing Rules, will we be able to see if the partisan differences identified in this Essay are a function of party rule compliance or deeper differences in how Democrats and Republicans think about and act towards the Constitution. It is fitting to conclude this inquiry with a gesture towards these deeper differences and, by extension, the theoretical questions they entail. For though the results reported here paint an unflattering picture of constitutional discourse in the House of Representatives, they paint as accurate a picture as a focus on Constitutional Authority Statements

U.S. CONST., PREAMBLE.42

U.S. CONST., PREAMBLE and ART. I, § 8, CL. 1.43

For general background on the constitutional limits side of this debate, see Randy 44

Barnett, RESTORING THE LOST CONSTITUTION (2003); and Michael P. Zuckert, THE NATURAL RIGHTS REPUBLIC (1997). For the constitutional ends side of the debate, see Sotirios Barber, WELFARE AND THE CONSTITUTION (2003), 1-22; and CONSTITUTIONAL FAILURE (forthcoming), ch. 2.

In this connection, it bears mention that Constitutional Authority Statements were 45

first championed, and to a great extent developed, by the House Republican Study Commission, whose former Executive Director is now Chief of Staff to Senator Ted Cruz (R-TX), for whom fidelity to the Constitution and the need to return to “the framers’ vision of a constitutionally limited federal government” has become a regular rhetorical theme. See David McKay Wilson, Carrying the Tea Party Banner, HARVARD LAW TODAY, Oct. 1, 2012 (http://today.law.harvard.edu/feature/carrying-the-tea-party-banner/).

http://today.law.harvard.edu/feature/carrying-the-tea-party-banner/


permits. Reflecting on the use (and abuse) of Constitutional Authority Statements in the 112th Congress, two conclusions are warranted. First, in the main the constitutional discourse revealed by authority statements is both minimal and formalistic, frequently failing to satisfy the requirements of House Rule XII. And second, across all levels of evaluation Republicans outperform Democrats and Tea Party Caucus members outperform non-members, a distinction that highlights the salience of ideology in the use of Constitutional Authority Statements.

If House Rule XII is to serve as a window into or catalyst for constitutional discourse, it is imperative that we come to terms with how representatives actually use authority statements. The goal of this Essay is to ensure that future inquiry is grounded in the political reality we have, even as we reach for a reality that might be.

Theory vs. Praxis: Constitutional Discourse and House Rule XII

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