Legislative Separation of Powers
I find nowadays that many of my constitutional interests revolve around comparing the United States and Britain. In that spirit, I want to raise the following issue about rule making within Congress.
A fundamental principle of our legal system is that no person should be a judge in his or her own case. This idea dates back to Blackstone, and is behind many of our legal institutions and ideals. There is, though, one significant exception. Each House of Congress makes and applies its own rules. This means that the majority can be a judge in its own case when the rules are inconvenient. You can make a reasonable argument that the current lack of cooperation in Congress stems from this merger of procedure and partisanship. The Speaker largely makes the rules in the House, and Senator Reid does the same in the Senate. And you wouldn’t call either of these guys nonpartisan.
How do legislatures deal with this problem in other countries or in the states? There are several options. One is to say that the rules may only be changed by a supermajority, or may only be changed at a particular time (not just any time the majority wants). Another thought is that there could be a norm that the rules should not be changed by the majority (even though it can be done that way). A third possibility is that you delegate rules decisions to someone who is insulated from the majority in some way (a committee chairman or a neutral presiding officer).
None of these are being done now. I wonder whether each House of Congress could, to so speak, do with a stronger dose of internal separation of powers.