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I spend a lot of time participating in mock Congress's and U.S. governments and recently a question came up regarding the constitutionality of Senate rules that prohibit a Senator from making disparaging remarks against another Senator (e.g. calling someone an idiot or claiming that they're incompetent). In real life, rule 19.2 of the Senate reads >

No senator in debate shall, directly or indirectly, by any form of words impute to another Senator or to other Senators any conduct or motive unworthy or unbecoming a Senator.

I found that this rule was invoked by the Senate presiding officer when Elizabeth Warren called a Senator a "disgrace" during a confirmation session and was prohibited from speaking for the rest that session.

So, are rules like these constitutional? Do they infringe upon a Senator's First Amendment rights? I know that the Constitution clearly lays out that "Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour". Based on this, it seems obvious to me that the Constitution does not protect disorderly behaviour (and speech) by a Senator and it would make sense that the First Amendment does not extend to it. Is this correct and is there more nuance to this matter? How could I construct a cohesive legal argument to protect a rule like this? Thanks!

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  • Please reread the First Amendment, putting special emphasis on 5th word. Then look at what Congress and Senate make to regulate their own conduct.
    – Trish
    Commented Feb 6 at 9:06
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    @Trish it's well established that the scope of the first amendment extends far beyond its literal domain of laws enacted by congress.
    – phoog
    Commented Feb 6 at 11:28
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    Ugh. Yes. Anyone who reads the First Amendment literally can safely be assumed to have no useful understanding of it.
    – bdb484
    Commented Feb 6 at 13:08

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Each House may determine the Rules of its Proceedings

This is all the authority necessary. In addition to proscribing disparaging remarks, the rules also limit the topics on which a senator may speak (among other limitations) at certain times ("...debate shall be germane and confined to the specific question then pending...")

This authority arises from the power to determine its own rules as well as from the provision that "for any speech or debate in either house, [members] shall not be questioned in any other place."

Each of these provisions prevents the courts from considering the question of constitutionality of a house's rules and the question of whether a restriction imposed by those rules on any particular speech by any particular member is constitutional. The only body that has the power to decide whether a senate rule is inconsistent with the constitution is the senate.

In short, the constitutional provisions that allow each house to establish order and decorum supersede constitutional restrictions on congress's ability to legislate. The senate does not need to allow insults if it finds -- as it presumably has -- that allowing such insults detracts from the body's capacity to perform its function.

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  • Thank you! This was very informative. I didn't quite understand what you meant by your reference to the Speech or Debate Clause, though. I'd be very appreciative if you could explain what you meant there—it went over my head.
    – Vaughn
    Commented Feb 7 at 9:54
  • @Vaughn basically that senators and representatives can only be punished for their "speech and debate" by the senate or house itself. Only the senate has authority to limit a senator's speech in the senate;, and courts don't have authority to review any such limits imposed by the senate. The senate could choose to take freedom of senators' speech into account in establishing its rules, but nobody can force it to other than a majority of its members.
    – phoog
    Commented Feb 7 at 10:47
  • It is way broader than just imposing rules. If a house passes legislation without following its own rules, it’s still valid legislation. The House is like Vegas on steroids, what’s done in the House, stays in the House. The technical term is that the activities of a chamber are not justicable
    – Dale M ♦
    Commented Feb 7 at 20:47
  • @DaleM the question is about the rules, though, not about passing legislation, so I don't see how it can be broader than the rules. The fact that courts can't judge whether a house followed its rules in passing a bill isn't relevant here.
    – phoog
    Commented Feb 12 at 16:49

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