Good Intentions: Cue-Taking, Committee Reports, and Congress

“Legislators, like other busy people, often depend on the judgment of trusted colleagues when discharging their official responsibilities.”^[1]

— Justice Stevens

I. Introduction

Beginning in the mid-1980s, the U.S. Supreme Court began to question the value of a statute’s legislative history to help courts resolve statutory ambiguity.^[2] The Court had routinely consulted legislative history—the work product of Congress’s deliberative process—to deduce the intent of the legislature—or the functional equivalent of intent^[3]—when it chose a particular word, phrase, or sentence in the text of a statute. The idea was that Congress’s work product could help the Court determine what members of Congress were thinking when they voted to enact an ambiguous statutory provision. But increasingly, the Court began to focus exclusively on the post-enactment text of the statute and to conclude that extratextual or pre-enactment sources of congressional intent are unhelpful and even unconstitutional.^[4] This textual approach eventually became the dominant interpretative approach on the Court.^[5]

The ascendancy of textualism, however, has limited the Court’s ability to faithfully glean the intent of Congress because textualist-leaning judges fail to understand how Congress is intended to work and fail to appreciate the intrinsic value of its work product. Consider that the U.S. Congress is populated with hundreds of policy generalists tasked with voting in highly specialized and complex areas of law and policy.^[6] For Congress to function, however, at least a few of its members must possess policy expertise in specialized and narrow subject areas. To acquire this expertise, Congress relies on an elaborate committee architecture and a decentralized, ground-up law-making process. Both the House of Representatives and the Senate channel much of their work through a committee structure that is designed to foster and maintain policy specialization in discrete areas of law.^[7] This committee structure serves to incentivize subject-matter expertise in a small number of policy specialists to allow a large body of mostly policy generalists to make law in complex and fast-changing legal environments.^[8] These policy experts are Congress’s home-grown specialists. Rank-and-file members of Congress—likely unfamiliar with the subject matter of a bill—must defer to these experts and their work product to vote responsibly on a bill. The committee’s work product—the committee report—typically expresses expert analysis of and opinions on the meaning of ambiguous statutory terms and provisions. Thus, policy specialists and the reports they generate provide cues or signals to policy generalists when they vote.^[9] If this is correct, then the intent of Congress can be attributed to the committee that reported out a bill and its work product.

Textualist-leaning judges unfamiliar with this process ignore Congress’s own policy experts and the resulting legislative history, arguing in part that no evidence exists to prove that rank-and-file members of Congress are persuaded by it or even familiar with it. They argue that the only evidence of legislative intent is a roll call vote on the bill. Thus, these judges conclude that Congress’s pre-enactment history is inconsequential and cannot provide helpful guidance on the interpretation of statutory language.^[10]

Political scientists, however, who study legislative decision-making disagree. These scientists have concluded after careful study that most members of legislative bodies—policy generalists—take cues from policy experts within their ranks to allow them to vote on matters on which they know little to nothing.^[11] One political scientist says, “[c]ue-taking is a shortcut by which imperfectly informed decision-makers look to other individuals for guidance and advice.”^[12] This cue-taking explains how a legislature’s internal committee architecture not only ensures that policy experts are doing the lion’s share of drafting, revising, and analyzing a bill but also explains how rank-and-file members may vote on a bill whose subject matter is beyond the members’ expertise or even comprehension. I posit that a member’s rollcall vote does not necessarily show an intent to approve (or to disapprove) a bill’s objective or text, but rather, an intent to defer to the experts who studied and reported the bill to the floor. Understanding how Congress is intended to work and recognizing the significance of cue-taking would allow a court to reconsider the value of pre-enactment expertise found in a statute’s legislative history.

This Article argues that members of Congress routinely take voting cues from the policy experts in their ranks, and if legislative history is the product of that expertise, then it can reveal legislative intent. A statute’s legislative history is not merely the detritus of the drafting process but is an important source of legislative meaning. Part II examines Congress’s committee architecture to explain how Congress is able to legislate on any subject matter, no matter how complex, obscure, or abstruse. The committee structure is designed to channel subject-matter expertise in a few legislators for the benefit of the many. Part II also examines the centrality of the committee (or subcommittee) report to the committee’s work. Part III discusses legislative cue-taking, a consequential idea first developed in the 1970s by political scientists to explain legislative decision-making. The gist is that rank-and-file policy generalists in Congress take voting cues from the experts or cue-givers in their ranks. Part IV argues that since Congress’s committee structure fosters expertise in a few specialists, these cue-givers and their work product signal to policy generalists how to vote and thus are important sources of legislative intent. Finally, I offer some concluding remarks.

II. Legislative Expertise

Congress is organized into committees and subcommittees to cultivate subject-matter expertise in a subset of its members to inform its most important work product—enacted law.^[13] Committee expertise is preserved and catalogued in the body of legislative history attached to each bill and created to chronicle the bill’s enactment into law. This history includes a committee report that records the votes on the bill and amendments and may include authoritative analysis of a statute. The history is drafted by policy experts with accumulated experience in the subject matter of the law.^[14] Thus, a committee’s recommendation on a bill to the full chamber, together with the documentation of the committee’s work, allows rank-and-file policy generalists—the vast majority of Congress—to take cues from policy experts when voting yea or nay on a bill.

A. Congress, Committees, and Specialization

Article I of the U.S. Constitution creates Congress, the House of Representatives, and the Senate, vests it with exclusive legislative powers,^[15] and determines baseline qualifications for its members,^[16] but it is largely silent on how each chamber is supposed to exercise its legislative duties. Instead, the framers gave each chamber the express authority to “determine the [r]ules of its [p]roceedings.”^[17] This means that the legislative procedures for each chamber are determined largely by chamber rules, history, custom, and tradition.^[18] From its inception in 1789, Congress settled on a decentralized committee structure to allow it to fulfill its constitutional duties.^[19] Employing dozens of subject-specific legislative committees and subcommittees in each chamber, members of Congress consider, debate, draft, amend, markup, and report on proposed laws to the full chamber.^[20] Legislative committees also have important investigative and oversight functions to check the administration and execution of enacted laws.^[21] Thus, legislative committees are central to the business of lawmaking and serve as the chief vehicle for members of Congress to gain and leverage policy expertise.^[22]

1. Congressional Committee Structure

Due to the importance of its constitutional mandate and the ever-increasing complexity of its work, Congress delegates much of its work to committees (and subcommittees). The idea is to distribute legislative and oversight functions to subunits with specialized knowledge and expertise on specific policy matters.^[23] This organization allows individual committee members to gain expertise and experience in discrete subjects, and more importantly, it enables the full membership of the House or Senate to operate effectively with mostly policy generalists. A policy generalist may have some familiarity with a few subjects but likely will not have the necessary depth of knowledge to fully understand most measures up for a vote on the chamber floor. Without a few legislators with policy specialization, Congress’s work would be difficult, if not impossible. Congress’s ability to macro-decision-make necessitates channeling policy expertise to a small subset of the membership.^[24] As discrete policy areas become more complex and technical, the need for specialization grows. Thus, committees are always “center stage.”^[25] A leading political scientist noted that “[c]ommittees, as agents of their parent chambers, exist to investigate, deliberate, apply specialized knowledge, and recommend action” to the floor of the full chamber.^[26] Other commentators have noted that “[s]pecialization is a predominant feature of informed decisionmaking in collective bodies. . . . Specialization by committees can be an efficient way for the parent body to obtain costly information.”^[27]

Congress’s committee structure and its concomitant specialization of labor have a long history in the U.S. Congress.^[28] One commentator studying the development of legislative committees in the United States and England noted, in 1922, “[i]n each country it has been found absolutely impossible for the lawmaking body itself, acting as a whole, to do the preliminary and subsidiary work. . . . [M]uch of the work must be done outside of the legislative chamber, simply because the hands of the clock compel.”^[29] Committees were regarded as fundamental and created with the intention to foster policy expertise in legislative subgroups. And, as issues became increasingly complex, the need for decentralization, specialization, and policy expertise grew.^[30]

The House and Senate committee structures are designed to foster policy expertise in legislators and legislative subgroups to allow each chamber, populated with mostly generalists, to make good policy decisions. That design is revealed in the formal and informal rules and customs that regulate committee assignments and incentivize legislators to accrue policy expertise.^[31] Each legislative committee, composed of policy experts, is essential to enable Congress to discharge its duty to make law.

2. Committee Assignment and Selection

As discussed more fully below, members of Congress request assignment to committees that are important to their constituents and important to themselves. While the committee assignment process in each chamber may consider the member’s preferences, assignment decisions are made by the party caucus leadership with the approval of the caucus and, ultimately, the approval of the full chamber.^[32] Once assigned to a committee, a member is likely to remain on that committee to leverage the perks of seniority.^[33] The rules that govern a member’s committee assignments are generally found in House and Senate standing rules, party caucus rules and customs, and may change with each new Congress.^[34]

i. U.S. House of Representatives. Under the standing rules of the House of Representatives (House Rules), a member may serve on no more than two standing committees and four subcommittees of the standing committee.^[35] A standing committee is a committee expressly authorized by the House Rules.^[36] The House Rules, however, are silent on the size of each committee and its party ratio. Traditionally, the party leadership negotiates the total number of members assigned to each committee prior to the start of a new Congress. The ratio of Democrats and Republicans on each standing committee generally corresponds to each party’s electoral strength in the House, but so-called “exclusive committees” might be more heavily weighted in favor of the majority party to allow for a comfortable working majority on key committees.^[37]

Both the Democratic National Committee and Grand Old Party caucus rules designate certain committees as “exclusive” and—due to their workloads or importance—limit a member’s service to just one exclusive committee.^[38] Generally, a member may serve on only two “non-exclusive” committees unless the House Rules say otherwise.^[39] Similar rules limit a member’s service on subcommittees of the standing committee.^[40]

Once assigned to a standing committee, members are customarily granted an unofficial property-type right to remain on that committee for as many subsequent Congresses as they are reelected.^[41] Emanuel Celler, a long-serving member of the House, observed that “a member who has served on a committee is regarded as entitled to continue to serve on it as long as he keeps his seat.”^[42] This so-called “property norm” means that the committee selection and assignment process is limited mostly to the appointment of newly elected members to the House of Representatives.^[43]

One observer noted that the committee selection process resembles a “giant jig saw puzzle” as the caucus weighs a variety of factors to fill open committee seats.^[44] In the mix are the members’ preferences, geographic distribution, experience, and training,^[45] as well as delegation support, and constituent priorities.^[46] Typically, a member communicates his or her committee preferences to a representative on the caucus steering committee prior to the start of a new Congress.^[47] Each caucus’s steering committee is composed of the party’s House leadership, members elected by the caucus, and members appointed by the leadership. The steering committee works to solve the puzzle and recommends to the full party caucus its slate of committee candidates. When the roster is approved, the recommendations are forwarded to the House for final approval by way of a simple resolution.^[48] Once seated on a committee, a member may expect to remain on that committee for the entirety of her tenure in the House of Representatives.^[49]

ii. The U.S. Senate. Like the House of Representatives, the Senate also determines standing committee sizes and ratios prior to the start of a new Congress.^[50] And, like the House, the ratio of Democrats and Republicans on each standing committee generally corresponds to each party’s electoral strength in the Senate.^[51] Unlike the House, the Senate sets by rule the size of each committee, but these numbers are typically amended at the start of each new Congress.^[52] The standing rules of the Senate (Senate Rules) also divide standing committees into three classes—“A” Committees, “B” Committees, and “C” Committees—and regulate the number of committees and subcommittees from each group that a Senator may join.^[53] The rules operate to equitably distribute committee assignments (and thus workloads) among Senators. Generally, a Senator may serve on two “A” committees, one “B” committee, and an unrestricted number of “C” committees.^[54]

Like the House, a Senator’s seniority plays a dominant role in the committee appointment process. But unlike its large and unwieldy sister chamber, the Senate allows Senators some measure of choice in assignments. For the Republican caucus, a Senator submits her or his committee preferences to the caucus leadership prior to the start of a new Congress.^[55] The Republican caucus utilizes a Committee on Committees to nominate Senators to serve on group “A” committees.^[56] The Republican leader, a position elected by the caucus membership, has authority to nominate half of the vacancies (if any) on “A” committees and also nominates Senators to the other committees.^[57] The leadership then employs a seniority formula to nominate members to committees.^[58] The formula grants incumbents, in order of seniority in the Senate, to choose two “A” committees; then, all newly elected Senators are ranked by a complex seniority/experience formula and nominated to committees.^[59] The slate of nominations is put before the Republican conference for approval and then presented to the full Senate chamber for ratification.^[60] Once committee assignments are approved, the Republican members of each committee choose the chair or ranking member, as the case may be.^[61]

The Democratic caucus in the Senate behaves similarly to the Republican caucus. The Democratic leader appoints a Steering and Outreach Committee, which includes the leader.^[62] Unlike the Republican caucus, the Democratic committee nominates Senators to all standing committees and does not use a seniority formula. To make appointments equitable, the caucus applies the so-called “Johnson Rule,” which allows all caucus members an assignment to an “A” committee before a member may choose a second committee.^[63] Because most incumbents elect to remain on the committees on which they previously sat, the Steering and Outreach Committee focuses its work on selecting newly elected Senators to committees.^[64] And while the committee is required to comply with the standing rules of the Senate relating to committee membership,^[65] it weighs other factors, including the freshman Senator’s preferences, experiences, party loyalty, and state.^[66] The full roster of nominations is put before the Democratic caucus for approval and then presented to the full Senate chamber for ratification.^[67] Typically, the ranking Democrat on each committee serves as chair or ranking member, as the case may be.^[68]

For both parties in both chambers, important and long-standing institutional incentives exist to motivate an incumbent to remain on a committee once appointed to it.^[69] These incentives allow members to acquire specialization at very low cost to the chamber on discrete policy matters.^[70] This specialization starts even before a newly elected member begins her inaugural congressional term. Incumbents tend to remain on committees from congress to congress, so appointment decisions are usually limited to freshmen.^[71] Political scientists suggest that freshmen legislators tend to prefer committees whose legislative jurisdiction aligns with their own backgrounds and experiences.^[72] So, a farmer tends to seek appointment on the Agriculture Committee, a teacher on the Education and Labor Committee, and a lawyer on the Judiciary Committee.^[73] This early self-selection tendency, combined with incentives to stay put, operates to cultivate policy specialists in a sea of generalists.^[74]

Legislative expertise, then, is a product of the committee structure, the committee selection process, and committee tenure norms. Committee tenure is largely a product of the seniority system. Members of the U.S. Congress operate under a long-established culture that motivates members to remain on legislative committees and, in the process, become policy specialists in discrete areas of law. As discussed in greater detail below, these specialists then signal or cue policy generalists when the chamber votes to enact a bill.^[75]

3. Seniority in the U.S. Congress

Policy specialization is a byproduct of seniority. Seniority refers not to a member’s chronological age or tenure in Congress, but to a member’s continuous service on a legislative committee.^[76] Neither the House’s nor the Senate’s standing rules regulates seniority; rather, it is a norm or custom promulgated and reinforced by the party caucuses.^[77] Despite this absence of formality, seniority is an integral part of Congress’s committee architecture that has proven to be durable and quite robust.^[78] It is the “spirit pervading the total behavior of Congress.”^[79]

The traditional seniority rule specifies “that a member shall be ranked, by party, according to years of consecutive service on a specific committee.”^[80] This so-called seniority ladder determines a committee member’s rank on the committee and her succession to the top rung—the committee (or subcommittee) chair or ranking member, as the case may be.^[81] Rank on a committee generally is determined by a member’s continuous service on that committee; a break in service, however short, could result in a forfeiture of all seniority on that committee.^[82] If two or more members are appointed to a committee for the first time, each caucus has rules to distinguish the rank between them.^[83] When a member relinquishes her committee assignment (typically when she loses her seat), the next-ranked member of the same party moves up the ladder.^[84] Ultimately, a legislator’s objective is to remain longer than any other fellow party member in order to elevate to the chair (or ranking member) of the committee.^[85]

The pull of seniority permeates the committee architecture in the House and Senate and advances the institutional need for specialization and expertise. The reward for a member’s endurance is a committee chair (or ranking minority seat).^[86] The chairperson enjoys special perks and rewards not available to the other members and presents members with two irresistible enticements: public visibility and lawmaking clout. Standing committee chairs form part of the party leadership in the House and Senate. More specifically, chairs have “great powers. They subdivide the work of the committees, arrange the agenda and the work schedule, control the staff, preside over committee meetings, manage floor debate . . . to mention only their more obvious activities.”^[87] Control over the committee (and its subcommittees) could afford the chair a power equivalent to a legislative veto.^[88]

Many congressional scholars “regard committee and subcommittee chairs as gatekeepers of the highest order.”^[89] If the chair acting as the leader of the majority party on the committee refuses to schedule a hearing, or markup, or report out a bill to the floor, then the bill dies.^[90] Although the chair could be overruled by a majority of the committee and the committee could be overruled by the full House or Senate, chairs still exert considerable power and influence.^[91] The enduring appeal of the chair is that a “committee’s authority is centered in its chair.”^[92]

The seniority rules facilitate a number of key advantages in Congress. First, they promote subject-matter specialization in a few by incentivizing members to pick and stick with committee assignments.^[93] Both the House and the Senate can bank on having a group of members with some measure of policy expertise developed at a very low cost to the chamber.^[94] Second, they facilitate deep expertise in the committee chair (and ranking member), who likely committed many years to serving on the committee, developing proficiency and broad experience in its subject matter.^[95] Most importantly, seniority, together with the chamber’s committee structure, allows rank-and-file policy generalists to vote on any matter despite being ill-informed.^[96]

The House and Senate’s committee architecture, informed by seniority practices, enables policy specialists in Congress to signal voting cues to other less informed members in the chambers. These cues come from the committee’s recommendation of a bill to the full chamber. But cues also come from the committee’s work product—legislative history—that is designed to describe and explain the bill to the uninformed members of the House and Senate. Thus, the legislative committee report attached to a bill reported out of committee can manifest legislative intent.

B. The Authority of Legislative Committee Reports

The U.S. Congress defines a committee report as a “[d]ocument accompanying a measure reported from a committee. It contains an explanation of the provisions of the measure, arguments for its approval, votes held in markup, individual committee members’ opinions, cost estimates, and other information.”^[97] According to the U.S. Senate, “Senate committees usually publish a committee report to accompany the legislation they have voted out. . . . Committee reports discuss and explain the purpose of measures and contain other, related information.”^[98] Similarly, the Clerk of the House of Representatives explains:

A reported measure usually is accompanied by a written document, called a report, describing the measure’s purposes and provisions and telling Members why this version has been reported and why it should be passed. The report reflects the views of a majority of the committee, but also may contain minority, supplemental, or additional views of committee members. It usually includes . . . a section-by-section analysis, and a comparison with existing law. Officials of the executive and judicial branches of government use these reports to determine the legislative history of laws and Congress’ intent in enacting them.^[99]

Both the House and Senate standing rules require committee reports to be filed with bills reported out of legislative committees. Rule XXVI of the Standing Rules of the Senate describes the committee report and its required parts.^[100] Likewise, Rule XXVII of the Rules of the House of Representatives describes the House committee report.^[101] Both chambers require this essential report to assist the rank-and-file when they consider a bill on the floor of the chamber.

Until relatively recently, courts and commentators had long considered legislative committee reports as authoritative indicators of legislative intent to aid in the resolution of statutory ambiguity. In 1990, George Costello, a legislative attorney for the Congressional Research Service, noted that “committee reports constituted nearly fifty percent of the Supreme Court’s references to legislative history . . . [because they] are considered the most reliable and persuasive element of legislative history.”^[102] As far back as 1959, Justice Felix Frankfurter wrote:

Congress can be the glossator of the words it legislatively uses either by writing its desired meaning, however odd, into the text of its enactment, or by a contemporaneously authoritative explanation accompanying a statute. The most authoritative form of such explanation is a congressional report defining the scope and meaning of proposed legislation.^[103]

Ten years later, Justice John Marshall Harlan noted in Zuber v. Allen that “[a] committee report represents the considered and collective understanding of those Congressmen involved in drafting and studying proposed legislation.”^[104] Justice William Rehnquist agreed with this assertion in Garcia v. United States when he explained that “[i]n surveying legislative history we have repeatedly stated that the authoritative source for finding the Legislature’s intent lies in the Committee Reports on the bill.”^[105] Perhaps the strongest champion of committee reports was Justice John Paul Stevens. In Exxon Mobil Corp. v. Allapattah Services, Inc., Justice Stevens excoriated the majority for adopting an interpretation of a federal supplemental-jurisdiction statute directly at odds with the House subcommittee report filed with the statute in question.^[106] Justice Stevens noted “[i]n Congress, committee reports are normally considered the authoritative explication of a statute’s text and purposes, and busy legislators and their assistants rely on that explication in casting their votes.”^[107] Justice Stevens observed that the purpose of a committee report is to allow the whole Congress to execute its legislative duties.^[108]

Justice Stevens expounded the busy-legislator theme in Bank One Chicago, N.A. v. Midwest Bank & Trust.^[109] Justice Stevens argued that “[l]egislators, like other busy people, often depend on the judgment of trusted colleagues when discharging their official responsibilities. . . . Representatives and Senators may appropriately rely on the views of the committee members in casting their votes.”^[110] For Justice Stevens, Congress’s committee structure and its products—committee reports—are an integral part of the lawmaking process and not meaningless clutter. Justice Stevens’ observations reinforce the idea that busy legislators who are likely to be much less informed on a bill take cues from the experts’ analysis found in committee reports.^[111]

Justice Breyer, in an oft-cited 1992 article, On the Uses of Legislative History in Interpreting Statutes, echoes this theme.^[112] He posits that those who object to the use of legislative history may not understand “how Congress actually works.”^[113] He observed that “Congress is a bureaucratic organization . . . generating legislation through complicated, but organized, processes.”^[114] Justice Breyer explains that members of Congress are required to rely on these processes—including committees and committee reports—to enact laws.^[115]

Despite the ascendancy of textualism, the Court still will consult committee reports to assist it in gleaning the intent of Congress. For example, Justice Kagan noted the value of committee reports in Tapia v. United States, a 2011 opinion resolving an ambiguity in the Sentencing Reform Act of 1984.^[116] In that case, Justice Kagan applied familiar textualist tools of interpretation to resolve a statutory question and added, “for those who consider legislative history useful, the key Senate Report . . . provides one last piece of corroborating evidence” of Congress’s intent.^[117] Justice Sonia Sotomayor, in 2010, relied on a committee report to help resolve an ambiguity in the Sex Offenders Registration and Notification Act.^[118] Later in 2018, Justice Sotomayor defended the Court’s use of committee reports in Digital Realty Trust, Inc. v. Somers.^[119] Justice Sotomayor explained:

Committee reports, like the Senate Report the Court discusses here, are a particularly reliable source to which we can look to ensure our fidelity to Congress’ intended meaning. . . . [Committee Reports] “have long been important means of informing the whole chamber about proposed legislation,” a point Members themselves have emphasized over the years. . . . [C]onfirming our construction of a statute by considering reliable legislative history shows respect for and promotes comity with a coequal branch of Government. . . . I do not think it wise for judges to close their eyes to reliable legislative history—and the realities of how Members of Congress create and enact laws—when it is available.^[120]

Justice Sotomayor’s warning not to ignore the realities of Congress’s legislative processes resonates with contemporary legislative theory and doctrine. As described earlier, Congress cultivates policy specialization and expertise in its members through its committee structure (and seniority norms).^[121] This specialization allows a body of mostly policy generalists to enact legislation on any issue no matter how complicated or technical. Rank-and-file members are obliged to take cues from the experts in their ranks and the experts’ work product to be able to vote on a bill completely unfamiliar to them. To ignore how Congress is intended to work deprives courts of a crucial source of Congress’s intent.

III. Cue-Taking in Congress

In 1975, two eminent political scientists, Donald R. Matthews and James A. Stimson, wrote a seminal monograph on legislative decision-making in the U.S. House of Representatives.^[122] The authors sought to use a rigorous scientific method to explain how a reasonable congressperson would vote on a bill about which she or he knew (or cared) exceedingly little. The objective was to solve how members of the House make “large numbers of apparently rational decisions, faced with constraints that defy rationality[.]”^[123] The authors endeavored to find order within the chaos. The authors analyzed roll-call votes—the final vote on a bill on which members of the House vote yea or nay to enact a bill into law.^[124] Before electronic voting, the Clerk of the House kept records of roll-call votes, allowing the authors to study the “individual choice process . . . to search for ‘causes’ in the chain of events preceding the vote.” Recognizing that many decisional processes could be in play, the authors postulated that “the normal process, the one employed by most members on most votes” involves informal cues and cue-taking.^[125] Matthews and Stimson hypothesized:

When a member is confronted with the necessity of casting a roll-call vote on a complex issue about which [the member] knows very little, [the member] searches for cues provided by trusted colleagues who—because of their formal position in the legislature or policy specialization—have more information than [the member] does and with whom [the member] would probably agree if [the member] had the time and information to make an independent decision.^[126]

The authors presuppose that given the ever-increasing number of votes on ever-increasingly complex bills, a member need only decide which cue-giver to follow.^[127] In effect, the authors posit that policy generalists in the House of Representatives normally would defer to the policy specialists in their ranks to vote rationally on a bill that is completely foreign to them.^[128] If true, then this signaling suggests that Congress’s pre-enactment processes and institutionalized specialization are important to assist courts tasked with gleaning legislative intent.

To study legislative decision-making, Matthews and Stimson employed a type of game theory—the mathematical modeling of strategic decision-making among rational agents. The authors used two distinct data sets.^[129] First, they devised a coded questionnaire with twenty-four questions administered through structured interviews with a random sample of 100 House members during the first session of the 91st Congress.^[130] Second, the authors used a computer program to predict—or more accurately “postdict[]”—the actual voting behavior of House members after inputting the record of roll-call votes between 1965 and 1969.^[131] The idea was to compare the computer-generated predictions of voting behavior with actual behavior to test the validity of the cue-taking model.^[132]

Crunching the coded interview data, Matthews and Stimson’s analysis revealed that cue-taking or expert-signaling was a reasonably rational decision-making choice by virtually all members of the House most of the time.^[133] Not surprisingly, a member was more likely to seek cues on matters that are “complex, new, or ‘nonideological.’”^[134] The authors first examined the coded responses to determine who served as cue-givers—those experts in the House to whom members relied when voting on matters foreign to them. They looked at both initial cue-givers—those perceived to be experts on the legislative subject, and intermediate cue-givers—those who receive initial cue-givers’ signals to serve as alternative or derivative cue-givers.^[135] Both initial and intermediate cue-givers serve to diffuse voting cues from the few (initial cue-givers) to the some (intermediate cue-givers) to the many (cue-takers). Thus, legislative expertise is distributed throughout the membership.^[136] The authors provide a useful example of this expertise diffusion in the House:

A subcommittee, for example, may make the initial policy decision and its members may serve as the initial cue-givers on a legislative controversy. The parent committee then arrives at a position, in part from subcommittee cues. If the proposal is reported to the floor [for a vote], influential members . . . may take positions, largely on the basis of signals picked up from sympathetic committee members. . . . All of these different individuals and groups, by adopting the decisions of the subcommittee members as their own, become available as sources of cues for the yet undecided members.^[137]

Not surprisingly, the authors found that legislative committees serve as powerful cue-givers in the House.^[138] They note that the “committee collectively and its members individually are potent cue-givers for the obvious reason of expertise.”^[139] Majority party members reported that they took voting cues from the committee chair, while minority party members took cues from the ranking committee member, a like-party member.^[140] Thus, the House committee structure serves to diffuse voting cues initially derived from (sub)committee experts down to the rank-and-file.^[141] This clever design allows a policy generalist to vote rationally on any matter with little time investment in the subject matter of the bill.

Recognizing that the coded questionnaires could result in an overly-simplistic view of a very complex decision-making process, Matthews and Stimson advantaged a relatively new technology—a computer simulation program—to test their cue-taking theory.^[142] The authors sought to use this new technology to predict all votes cast by all members of the House by comparing the predicted member’s virtual vote to the actual vote.^[143] The idea was to correlate a member’s agreement with a set of cue-takers to anticipate a member’s actual vote.^[144] In all, the program made about 400,000 individual voting predictions.^[145] The model was right roughly 88% of the time.^[146] Matthews and Stimson stated with enthusiasm, “Across all issues and for all members of the House, knowing nothing but the position of . . . cue-givers and the cue-taking propensities of members, [the program] is right nearly 9 out of every 10 times!”^[147] The computer model, it seems, corroborated the results of the coded questionnaire data set and “thus point to the same conclusion: members vote by taking cues.”^[148]

Matthews and Stimson’s groundbreaking study confirmed that cue-taking is real.^[149] It allows policy generalists—the majority of members in the House—to vote rationally on bills without having any expertise with the subject matter of a bill on the floor, no matter how complex and technical. They observed that policy expertise is diffused in the House from policy specialists to generalists or from legislative committee members to the rank-and-file.^[150] Cue-taking explains how the House of Representatives employs its legislative committee architecture to distribute expert specialization to its members. It demonstrates the level of abstraction necessary for a legislative chamber with hundreds of diverse members to make rational voting decisions. The authors aptly note that “[b]eing well informed on a policy issue is rather fruitless if no other members look to them for cues.”^[151] So long as a few of those members (or groups) are experts, then the House can enact law. In the study’s concluding paragraphs, Matthews and Stimson comment on the significance of cue-taking:

Coping with complexity has been the crowning achievement of Congress. Specialization and decision-making by cue-taking have been the means by which Congress has maintained decision-making autonomy in the twentieth century—in effect, the means by which it has survived as a legislative body.^[152]

Soon after Matthews and Stimson published their groundbreaking study, other political scientists began to investigate their theory to test its validity and to apply it beyond the narrow parameters of Matthews and Stimson’s first effort. In 1976, Richard Born, a professor of political science at Vassar College, looked at cue-taking within state party delegations in the House of Representatives, a group first identified by Matthews and Stimson as potential cue-givers.^[153] Professor Born posited that members of a state party delegation have a strong influence over each other’s votes—both as cue-givers and cue-takers.^[154] He notes that earlier anecdotal research suggested that state delegation cohorts affected each other’s voting behavior independent of shared constituents, regional preferences, and policy homogeneity.^[155] Born also notes that earlier interview-based studies had shown that “reliance upon a committee member for voting advice [is] especially pronounced when [she or] he also is a member of one’s own state party delegation.”^[156] In effect, the studies demonstrated that a House committee member who is also in the member’s state delegation adds fuel to the impact of voting cues. Professor Born set out to subject the prior largely anecdotal studies to quantitative analysis. Crunching roll-call votes of four different congresses over two distinct periods, Born’s analysis did not reveal that members sought out state delegation representatives to provide expert cues.^[157] Instead, data showed that members sought out experts in their ranks without regard to their position in the state party delegation.^[158] While Professor Born debunked the role of state party delegates, his paper signals the strength of cue-taking and its growing importance in the academy.

Cue-taking theory soon became conventional doctrine, at least for political scientists. Since it was first introduced in the 1970s, scientists have studied various aspects of cue-taking (and cue-giving) to provide a fuller understanding of the phenomenon. In 1997, Dr. William Bianco of Pennsylvania State University looked at whether members of a legislature will prefer cues from a median-centered committee—one that resembles politically the median ideal policy point of the full chamber—or a heterogeneous committee—one whose members have diverse viewpoints.^[159] Employing a form of game theory, Professor Bianco determined that a majority of legislators prefer to take voting cues from individuals on a heterogeneous committee but not committees that reflect the median ideal point.^[160] Legislative committees need not represent the midpoint policy viewpoint of the chamber, so long as the committee members possess diverse viewpoints.^[161]

Another political scientist, Seth Masket at the University of Denver, tested the breadth of cues when he queried whether legislators take voting cues from members who are physically proximate to them—seated next to them in the chamber, especially when other more formal forms of cue-taking are absent.^[162] Looking at roll-call votes from the California Assembly, Dr. Masket’s data suggests that “where you sit” can have an impact on cue-taking and voting.^[163] Other scientists looked at the impact of cues from noncommittee experts and specialists. In a 2013 paper, Drs. William Minozzi and Craig Volden examined “non-normal”^[164] voting behavior when they considered whether a political party’s partisan policy position impacted voting behavior, particularly for ideological extremists.^[165] Employing a regression analysis focused on highly partisan roll-call votes in the House of Representatives over many years, the authors showed “that ideological extremists vote with their party on these party-influenced votes much more frequently than do moderates.”^[166] Committee specialization and expertise, then, may not be the sole source of voting cues—at least for ideological extremists—when the party weighs in on politically “hot” issues.

Matthews and Stimson looked at normal voting behavior in the House of Representatives to show that cue-taking is a major factor in roll-call voting for a member unfamiliar with the bill.^[167] In 2015, a team of political scientists examined cue-taking in the U.S. Senate.^[168] The study recognized that “senators are faced with such an immense amount of work, and such multifaceted and complicated issues, that they are often required to use information shortcuts when trying to decide how to vote.”^[169] That shortcut is cue-taking.^[170] The authors examined the timing of roll-call votes, theorizing that early voters were cue-givers and later voters were cue-takers.^[171] The authors surmised that roll-call votes on the Senate floor are “when senators are faced with making quick decisions about issues they are not familiar with” and thus prime for identifying and examining voting cues.^[172] Employing quantitative regression analysis, the authors discovered that committee leaders vote early on all matters and thus serve as key cue-givers.^[173] Other categories of voters, including cosponsors, recent speakers on the floor, and party leaders (limited to contentious bills), tended to vote earlier and thus could also serve as cue-givers.^[174] The authors found “strong evidence” that “cue-giving and cue-taking dynamics exist in the US Senate.”^[175] They conclude that “[c]ue-taking from more informed colleagues is an efficient and effective strategy to minimize the electoral risks associated with any particular vote.”^[176] Like their House counterparts, Senators must rely on the expertise of their colleagues to make rational voting decisions on any subject, whether it is complex, super technical, or even a subject completely foreign to them.

In 2019, Dr. Christian Fong, a professor at the University of Michigan, designed a novel approach to observe the cue-taking phenomenon and the concomitant importance of committee expertise.^[177] Professor Fong examined midsession committee assignments—when a member is assigned to a legislative committee after the start of the session due to a member’s death, resignation, or transfer to another committee.^[178] He posited that once assigned to the committee, the member would quickly gain some expertise in the committee’s legislative subject matter and thus serve as a cue-giver to others in his or her “legislative network”—the formal or informal relationships between legislators.^[179] Professor Fong hypothesized that the rate of cosponsorship between the new committee member and those in the member’s legislative network would increase, thus demonstrating the impact of committee expertise and cue-taking.^[180] A cosponsor of a bill adds his or her name in support of the sponsor’s bill and indicates the legislator’s approval of the sponsor’s bill.^[181] The idea is that a cosponsor would support the sponsor’s bill because of the sponsor’s recently acquired expertise and cues. Using a regression analysis built on thousands of observations, Professor Fong learned that the rate of cosponsorship did increase significantly for those in the member’s legislative network and that cue-taking and cue-giving accounts for a substantial proportion of all congressional voting decisions.^[182] He learned that cues cross party lines, remain relevant even in periods of partisan polarization, and are salient in both the House and Senate.^[183] Using a novel and creative empirical test, he added to the chorus of political scientists who concluded that cue-taking is vital to lawmaking. He confirmed that cue-taking (and cue-giving) allows nonexpert policy generalists—the majority of members in the House and Senate—to make rational voting decisions by simply leveraging the legislative expertise in each chamber;^[184] expertise that is the intended byproduct of Congress’s committee structure and expressed in the legislative history.

IV. Cue-Taking and Congressional Intent

As many scholars have observed over the years, courts have narrowed the search for congressional intent to resolve statutory ambiguity.^[185] Most courts now believe that Congress only speaks (or manifests its intent) when it votes on a bill—its ultimate act.^[186] Any evidence of intent prior to the vote is superfluous, meaningless, and possibly unconstitutional.^[187] Courts point out that extra-textual pre-enactment sources, like legislative history, are inherently unreliable, susceptible to exploitation, and thus should be ignored.^[188] These courts endeavor to resolve statutory ambiguity using statutory text and, if necessary, tools of statutory construction that are guided by text and textual language.^[189] This philosophy—aptly called textualism—is now the leading judicial sentiment of the day.^[190] This view, however, is misguided largely because textualist-leaning courts do not understand how Congress is intended to function.

Justice Antonin Scalia, a progenitor of textualism, once scoffed at the Court’s use of legislative history to resolve a statutory ambiguity when he famously noted:

The law is what the law says, and we should content ourselves with reading it rather than psychoanalyzing those who enacted it. Moreover, even if subjective intent rather than textually expressed intent were the touchstone, it is a fiction of Jack-and-the-Beanstalk proportions to assume that more than a handful of those Senators and Members of the House who voted for the final version of the . . . Act . . . , were, when they took those actions, aware of the drafting evolution that the Court describes . . . .^[191]

Justice Scalia believed it was “quite unlikely” that members of Congress would be “content to endorse the views of the responsible committees” when voting on a bill.^[192] But, Justice Scalia was wrong. Political scientists investigating legislative decision-making had already discovered that legislators routinely adopt the views expressed by legislator-experts to make voting decisions.^[193]

As discussed earlier, most members of the U.S. Congress lack the expertise, or in some cases, even passing familiarity with the subject matter of a bill when voting on that bill.^[194] Yet, these so-called policy generalists are expected to make rational and reasoned voting decisions on increasingly complex, highly technical, and narrow areas of law and policy. To compensate for this knowledge deficit, the House and Senate—over two hundred years ago—devised a decentralized and elaborate committee architecture to cultivate a few policy specialists in a sea of legislator-generalists.^[195] It begins when newly minted members of Congress are assigned to one or more legislative standing committees and then further assigned to one or more specialized subcommittees, each with subject matter jurisdiction to consider only a discrete class of bills.^[196] That member then builds seniority on that committee—or subcommittee—to win the perks, privileges, and visibility of rank while building expertise and experience along the way in a discrete area of law and policy.^[197] The genius of the design lies in the mutuality of benefits; the member gains seniority and collateral policy expertise, while the chamber gains the expertise to enable it to legislate on any subject. That expertise is reflected in the committee/subcommittee report and other authoritative parts of a statute’s legislative history.^[198]

But how is legislative expertise distributed to the uninformed rank-and-file? How do policy specialists inform their colleagues how to vote? How may members rationally vote on a bill if they are wholly unfamiliar with its subject matter? Political scientists discovered that the answer is cue-taking—legislative experts signaling to the chamber how to vote.^[199] These scientists devised creative empirical studies, sophisticated regression analyses, and novel applications of game theory to confirm that Senators and members of the House of Representatives take voting cues from policy specialists.^[200] This expertise is a product of Congress’s committee architecture and memorialized in the bill’s legislative history, most notably in the committee report. Cue-taking allows uninformed members of Congress to leverage the experts in their ranks to allow them to vote rationally on any bill, no matter its subject matter. And with the increasing number and complexity of bills up for consideration in any given session, cue-taking permits members to vote with considerable confidence and with minimal time investment.

If cue-taking explains how most members of Congress vote, then courts would be reckless to ignore it. Textualists preach the supremacy of statutory text to the exclusion of other sources of congressional intent to resolve statutory ambiguity.^[201] Textualist-leaning courts argue that legislative history is useless clutter and should be ignored. But if cue-taking is real, then legislative history that describes voting cues is significant.^[202] A committee (or subcommittee) report published by policy experts that signals to the rank-and-file what the statutory text means and how to vote on the bill offers courts a credible means to deduce what most members understood when they voted to approve a bill. It appears that members of Congress are quite content to endorse the views of the responsible committee; indeed, they have no choice but to endorse those views if Congress is to function. And the views of the committee are found in its work product—the report. Courts, then, should receive this critical dimension of legislating and respect the value of the committee report as an expression of the whole chamber or at least those members who voted to enact the bill.

In the paradigmatic case, a court tasked with resolving statutory ambiguity is required to glean the intent of Congress. When the text of the statute—an obvious expression of intent—fails to settle the question, a court may reliably consult the statute’s authoritative history, such as its committee report, to learn the intention of the policy experts tasked with drafting the bill. These experts are the cue-givers who signal to the membership how to vote. Thus, a report can suggest the intent of the whole Congress or at least the chamber that published it. If Congress operates through its committee structure, and if that structure produces legislative experts, and if the membership defers to that expertise, then a committee report is an essential expression of legislative intent.

V. Conclusion

This Article is not intended to challenge textualism or reproach the courts that employ it. I have no beef with the fundamental tenet that statutory text is the clearest expression of legislative intent. But text alone (including textual canons) sometimes fails to faithfully resolve Congress’s legislative objective. Perhaps a better appreciation of how Congress operates might allow courts to look a bit beyond the text when the text itself is the problem. I posit that credible evidence of intent is not limited to enacted text (or text-based canons) and includes Congress’s authoritative work product. Political scientists discovered decades ago that rank-and-file members of Congress rely on voting cues from policy experts in their ranks when voting on a bill. These experts are an intended consequence of Congress’s committee architecture. And their expertise is memorialized in committee (and subcommittee) reports. If cue-taking is real, then a court ought to consider the intent of the cue-givers to glean the intent of Congress when the text is unhelpful.

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1. Bank One Chi., N.A. v. Midwest Bank & Tr. Co., 516 U.S. 264, 276 (1996) (Stevens, J., concurring).

2. See, e.g., id. at 276 (Stevens, J., concurring); id. at 279 (Scalia, J., concurring in part & concurring in judgment); INS v. Cardoza-Fonseca, 480 U.S. 421, 452 (1987) (Scalia, J., concurring) (criticizing the majority’s use of legislative history instead of using the statute’s text); see also infra Section II.B. (discussing the Supreme Court’s stance on the use of legislative history).

3. Garcia v. United States, 469 U.S. 70, 75–76 (1984); see Victoria F. Nourse, Elementary Statutory Interpretation: Rethinking Legislative Intent and History, 55 B.C. L. Rev. 1613, 1625 (2014). Professor Nourse aptly notes that while Congress itself may not possess an intent, it has “the functional equivalent of intent by acting through its sequential procedures” like subcommittees and committees. Id.; see infra note 110 and accompanying text. In this Article, I use the word intent to suggest institutional evidence of statutory meaning available to assist a court in resolving statutory ambiguity.

4. See infra Section II.B (discussing the Supreme Court justices’ views on the use of legislative history to resolve statutory ambiguity).

5. See Harvard Law School, The 2015 Scalia Lecture | A Dialogue with Justice Elena Kagan on the Reading of Statutes, at 08:29 (YouTube, Nov. 25, 2015), https://www.youtube.com/watch?v=dpEtszFT0Tg [https://perma.cc/R7H8-W7AN] (on file with the Houston Law Review).

6. David S. Romantz, In Defense of Legislative History, 90 Miss. L.J. 684, 708 (2021).

7. See infra Section II.A (discussing Congress’s committee architecture).

8. See infra Section II.A.1 (explaining Congress’s committee structure and its need for specialization).

9. See infra Part III.

10. E.g., Bank One Chi., N.A. v. Midwest Bank & Tr. Co., 516 U.S. 264, 279 (1996) (Scalia, J., concurring). In Bank One Chicago, Justice Scalia notes with disdain that

    even if subjective intent rather than textually expressed intent were the touchstone, it is a fiction of Jack-and-the-Beanstalk proportions to assume that more than a handful of those Senators and Members of the House who voted for the final version of the [statute], and the President who signed it, were, when they took those actions, aware of the drafting evolution that the Court describes; and if they were, that their actions in voting for or signing the final bill show that they had the same “intent” which that evolution suggests was in the minds of the drafters.

    Id.; see also infra notes 113–16 and accompanying text (citing Justice Breyer claim that those who object to legislative history may not understand Congress’s necessary but complex process).

11. See infra Part III (summarizing cue-taking scholarship).

12. Adam Zelizer, Is Position-Taking Contagious? Evidence of Cue-Taking from Two Field Experiments in a State Legislature, 113 Am. Pol. Sci. Rev. 340, 341 (2019).

13. See Romantz, supra note 6, at 698. The discussion in this Section draws extensively on my previous exploration of this topic.

14. See infra Section II.B (discussing the authority of legislative committee report).

15. U.S. Const. art. 1, § 1.

16. Id. §§ 2–3. Section 2 of Article I limits House members to those who have been citizens of the United States for seven years, who are twenty-five years of age when elected, and who are residents of the state. Id. § 2. Section 3 of Article I limits Senators to persons who have been citizens of the United States for nine years, who are thirty years of age when elected, and who are residents of the state. Id. § 3.

17. Id. § 5.

18. See generally R. Eric Peterson, Cong. Rsch. Serv., RL33686, Roles and Duties of a Member of Congress: Brief Overview (2022), https://www.congress.gov/crs_external_products/RL/PDF/RL33686/RL33686.13.pdf [https://perma.cc/BG7K-HZJH] (discussing the responsibilities of a member of Congress). According to the U.S. Congressional Research Service (CRS) disclaimer page that appears in all of its documents and reports, the CRS is a federal legislative branch agency within the Library of Congress. See About the Congressional Research Service, Const. Annotated, https://constitution.congress.gov/about/congressional-research-service/ [https://perma.cc/P6UQ-78WB] (last visited Oct. 26, 2025). It is charged with providing members of Congress nonpartisan advice and analysis on issues that may come before Congress. Id.

19. Judy Schneider, Cong. Rsch. Serv., RS20794, The Committee System in the U.S. Congress 1 (2009), https://crsreports.congress.gov/product/pdf/RS/RS20794 [https://perma.cc/8B
    6V-Z8UK].

20. For the 115th Congress that spanned 2017 and 2018, Congress relied on twenty standing committees with ninety-seven subcommittees in the House, and sixteen committees with sixty-eight subcommittees in the Senate. Valerie Heitshusen, Cong. Rsch. Serv., 98–241, Committee Types and Roles 1 (2017), https://www.congress.gov/crs_external_products/RS/PDF/98-241/98-241.21.pdf [https://perma.cc/9CQX-BJZL].

21. Id.

22. See generally Thomas W. Gilliland & Keith Krehbiel, Collective Decision Making and Standing Committees: An Informational Rationale for Restrictive Amendment Procedures, 3 J.L., Econ., & Org. 287 (1987) (discussing the central role of standing committees in Congress). In their paper, Professors Gilliland and Krehbiel posit that Congress restricts by standing rule the ability of members to amend a bill reported out of committee to take advantage of the expertise and specialization developed by standing committees and thus protect the bill from amendment on the chamber floor. Id. at 297. For example, a so-called “closed rule” from the House’s Rules Committee can limit and even eliminate amendments or debate on a reported bill. Id. at 287, 290. Using a game-theory model, the authors conclude that “[r]estrictive amendment procedures often enhance the informational role of committees . . . [, and they] also increase the incentive for committees to specialize in policies within their jurisdictions.” Id. at 329–30.

23. See Schneider, supra note 19, at 1.

24. See Herbert B. Asher, Committees and the Norm of Specialization, ANNALS, Jan. 1974, at 63, 65–66.

25. See Tim Groseclose & David C. King, Committee Theories Reconsidered, in Congress Reconsidered 191, 191 (Lawrence C. Dodd & Bruce I. Oppenheimer eds., 7th ed. 2001) (evaluating competing theories on why committees exist). Tim Groseclose and David C. King are political scientists who studied four popular and competing theories on Congress’ committee architecture and concluded that each theory helps to explain the existence and persistence of congressional committees. Id. at 212–13. Very generally, information theory focuses on information and expertise and the utility of legislative subunits—committees—to foster specialization to benefit the general membership; distributive benefits theory suggests that committees are a collection of members with special interests who act collectively to obtain special benefits; majority-party cartel theory posits that committees persist because they are an important strategic reward for the majority party; and bicameral rivalry theory suggests that the committee architecture is a product of House-Senate competition that incentivized legislative hurdles—like committees—in each chamber. See id. at 192–96 (introducing information efficiency theory, distributive benefits theory, majority-party cartel theory, and bicameral rival theory).

26. Keith Krehbiel, Information and Legislative Organization 105 (1991).

27. Gilliland & Krehbiel, supra note 22, at 287 (discussing the central role of standing committees in Congress).

28. Krehbiel, supra note 26, at 108–09.

29. Id. at 109 (citing Robert Luce, Legislative Procedure: Parliamentary Practices and the Course of Business in the Framing of Statutes 180–81 (1922)).

30. Id. at 110–11. Professor Krehbiel notes that as originally conceived, the Congress was egalitarian but “asymmetries emerged” when each chamber developed systems and protocols to foster expertise and specialization in order to make the legislative process work. Id. at 113.

31. See infra Section II.A.2.

32. See generally Michael Greene, Cong. Rsch. Serv., R46786, Rules Governing House Committee and Subcommittee Assignment Procedures (2025), https://www.congress.gov/crs_external_products/R/PDF/R46786/R46786.7.pdf [https://perma.cc/8NCT-DEWJ] (outlining how committees in the House of Representatives are formed).

33. See infra text accompanying notes 76–86.

34. See infra text accompanying notes 76–85. While the standing rules of each chamber are published and available to the public, party caucus rules are generally not public or published. And the Democratic National Committee (DNC) appears to be far less inclined to publish its internal rules of procedure than the Grand Old Party (GOP). Stephanie Akin, Democratic Leaders Called Out for Secrecy Surrounding Internal Party Rules, Roll Call (Jan. 31, 2019, at 15:11 CT), https://rollcall.com/2019/01/31/democratic-leaders-called-out-for-secrecy-surrounding-internal-party-rules/ [https://perma.cc/75TR-V35C].

35. Thomas J. Wickham, Constitution, Jefferson’s Manual, and Rules of the House of Representatives of the United States One Hundred Sixteenth Congress, H.R. Doc. No. 115-177, at 520 (2019).

36. Id. at 445–93. For the 115th Congress, the House Rules recognized twenty standing committees: Agriculture, Appropriations, Armed Services, Budget, Education & the Labor, Energy & Commerce, Ethics, Financial Services, Foreign Affairs, Homeland Security, House Administration, Judiciary, Natural Resources, Oversight & Government Reform, Rules, Science, Space & Technology, Small Business, Transportation & Infrastructure, Veterans’ Affairs, and Ways & Means. Id.

37. Judy Schneider, Cong. Rsch. Serv., 98–367, House Committees: Assignment Process 1–2 (2008), https://www.everycrsreport.com/files/20080225_98-367_a0b9dde820351d4cc1909a96e2b9c7087c53f604.pdf [https://perma.cc/Z2DC-G76Q]. The House Rules, however, make exceptions to this tradition. For example, “[t]he Committee on Ethics shall be composed of 10 members, five from the majority party and five from the minority party.” Wickham, supra note 35, at 517; see also Groseclose & King, supra note 25, at 206–07 (discussing proportional representation on standing committees).

38. Judy Schneider, Cong. Rsch. Serv., 98–151, House Committees: Categories and Rules for Committee Assignments 1 (2014), https://www.congress.gov/crs_external_products/RS/PDF/98-151/98-151.16.pdf [https://perma.cc/VQ64-RGPW]; Steven S. Smith & Patrick Rickert, Just One of Those Things: Parties and Exclusive Committees in the U.S. House, 39 Stud. Am. Pol. Dev. 26, 26 (2025). Exclusive committees include Appropriations, Rules, Ways and Means, Energy and Commerce, and Financial Services. Schneider, supra, at 2.

39. For example, the House Committee on Ethics is exempt from these assignment rules, allowing a member to serve on one other exclusive committee or two other nonexclusive Committees. Schneider, supra note 38, at 2.

40. Wickham, supra note 35, at 520.

41. See Krehbiel, supra note 26, at 141 (discussing the seniority system in Congress). The House Rules, however, do make membership on a standing committee contingent on the member’s continuing membership in the party caucus. Wickham, supra note 35, at 519; see also infra text accompanying notes 197–99 (discussing why members are incentivized to retain their seats on committees). One former House representative noted that the “salient and long-established features of the committee system in the American Congress are thus seen to include length of uninterrupted tenure as the traditional determinant of choice in committee assignment.” Emanuel Celler, The Seniority Rule in Congress, 14 W. Pol. Q. 160, 163 (1961) [hereinafter Celler, The Seniority Rule in Congress]. Emanuel Celler served in the House of Representatives from 1923 to 1973. CELLER, Emanuel, Hist., Art & Archives, U.S. House of Representatives, https://history.house.gov/People/Detail/10788 [https://perma.cc/J547-RPEE] (last visited Oct. 7, 2025).

42. See Celler, The Seniority Rule in Congress, supra note 41, at 162 (opining on the seniority rule).

43. Schneider, supra note 37, at 1–2. Other than a freshman member’s initial assignment to a committee, the caucus leadership may also need to appoint a new member due to an unexpected vacancy on the committee or when the size of a committee is increased. See id.

44. George Goodwin, Jr., The Seniority System in Congress, 53 Am. Pol. Sci. Rev. 412, 414–15 (1959).

45. Id. at 414–15.

46. Schneider, supra note 37, at 2.

47. See id. at 1–2.

48. Id. at 2. Committee chairs are selected through a similar process. The steering committee makes committee chair recommendations to the full caucus. Judy Schneider & Michael L. Koempel, Cong. Rsch. Serv., RL34679, House Committee Chairs: Considerations, Decisions, and Actions as One Congress Ends and a New Congress Begins 2–3 (2018), https://www.congress.gov/crs-product/RL34679 [https://perma.cc/3GDA-MTY3]. After the slate of chairs (and subcommittee chairs) is approved, the House meeting in a new Congress will adopt simple resolutions ratifying the slate of candidates. Id. at 3.

    A member’s appointment to a subcommittee of a standing committee is determined by a patchwork of caucus rules, committee-specific rules, and custom. Generally, the GOP allows committee chairs to populate subcommittees from the standing committee’s roster, although most committees employ a bidding process that favors seniority. Judy Schneider, Cong. Rsch. Serv., 98-610, House Subcommittees: Assignment Process 2 (2007), https://crsrep
    orts.congress.gov/product/pdf/RS/98-610 [https://perma.cc/35FG-SXNW]. The DNC caucus rules instruct committee members to bid based on seniority on subcommittee seats. Id. The selection of subcommittee leaders is similar. For the GOP, the selection process is left to the discretion of the committee chair, although a majority of Republican members may disapprove of the process. Id. at 1. The DNC allows committee members to bid based on seniority on subcommittee chairs. Id. at 2.

49. See Krehbiel supra note 26, at 141 (discussing the seniority system in Congress).

50. Judy Schneider, Cong. Rsch. Serv., RL30743, Committee Assignment Process in the U.S. Senate: Democratic and Republican Party Procedures 2 (2006), https://crsreports.congress.gov/product/pdf/RL/RL30743 [https://perma.cc/T2M9-JXM3].

51. Id.

52. Id.; see also Senate, Standing Rules of the Senate, S. Doc. No. 113–18, at 28–29 (2013), https://www.rules.senate.gov/imo/media/doc/CDOC-113sdoc18.pdf [https://perma.cc/T397-KL9E] (Rule XXV) (setting the number of Senators for each standing committee). For the 113th Congress, Senate Rules recognize sixteen standing committees: Agriculture, Nutrition, and Forestry; Appropriations; Armed Services; Banking, Housing, and Urban Affairs; Commerce, Science, and Transportation; Energy and Natural Resources; Environment and Public Works; Finance; Foreign Relations; Health, Education, Labor, and Pensions; Homeland Security and Governmental Affairs; Judiciary; Budget; Rules and Administration; Veterans’ Affairs; Small Business and Entrepreneurship. See id. (a joint committee is composed of members from both chambers).

53. Id. at 28–29; Judy Schneider, Cong. Rsch. Serv., 98-912, Senate Rules ad Practices on Committee, Subcommittee, and Chairmanship Assignment Limitations as of November 4, 2000, at 2 (2000), https://www.congress.gov/crs-product/98-912 [https://perma.cc/2D4M-TFD8]. For the 116th Congress, the “A” Committees are: Agriculture, Nutrition, & Forestry; Appropriations; Armed Services; Banking, Housing, & Urban Affairs; Commerce, Science, & Transportation; Energy & Natural Resources; Environment & Public Works; Finance; Foreign Relations; Health, Education, Labor, & Pensions; Homeland Security & Governmental Affairs; and Judiciary. S. Doc. No. 113–18 at 28. The “B” Committees are: Budget; Rules & Administration; Veterans’ Affairs; Small Business & Entrepreneurship; Aging; Intelligence; and the Joint Economic Committee. Id. The “C” Committees are Ethics, Indian Affairs, and the Joint Committee on Taxation. Id. at 29.

    Additionally, the party caucus may further divide standing committees to impose additional appointment restrictions. For example, the Republican caucus rules carve out a group of four so-called “Super A” committees—Appropriations, Armed Services, Finance, and Foreign Relations. Schneider, supra note 50, at 4–5. A caucus rule prevents a Republican Senator from serving on more than one “Super A” committee. Id.

54. S. Doc. No. 113–18 at 29 (Rule XXV). The Senate may make exceptions to these restrictions—to accommodate a Senator’s preferences or enable a working majority to the majority party—through a simple resolution approved by the chamber. Schneider, supra note 50, at 2.

55. Schneider, supra note 50, at 4.

56. Id.

57. Id. at 5; About Parties and Leadership | Majority and Minority Leaders, U.S. Senate, https://www.senate.gov/about/parties-leadership/majority-minority-leaders.htm [https://perma.cc/C3GN-LFWX] (last visited Nov. 21, 2025).

58. Schneider, supra note 50, at 4.

59. Id. at 5. Seniority for newly elected Senators is determined by considering the Senator’s previous service in the Senate, previous service in the House, and previous service as state governor. Id. To ensure parity, the slate of new Senators are seated on a first committee before they are seated on a second committee. Id.

60. Id. at 6.

61. See id. at 5 n.7.

62. Id. at 7.

63. Id. at 7–8. See also Goodwin, supra note 44, at 416, 432 (discussing the Johnson Rule, so named after Lyndon B. Johnson when he served as the Democratic Leader in 1953).

64. See Schneider, supra note 50, at 7.

65. See supra text accompanying note 41.

66. Schneider, supra note 50, at 8.

67. Id.

68. About the Committee System | Committee Assignments, U.S. Senate, https://www.senate.gov/about/origins-foundations/committee-system/committee-assignments.htm [https://perma.cc/5YNQ-FHVU] (last visited Nov. 21, 2025).

69. See infra text accompanying notes 84–88.

70. See supra Section II.A.1.

71. See infra Section II.A.3 (discussing seniority in the U.S. Congress).

72. Krehbiel, supra note 26, at 114–17.

73. See id. at 116–17.

74. See supra Section II.A.

75. See infra Part III.

76. Groseclose & King, supra note 25, at 197.

77. About Traditions & Symbols | Seniority, U.S. Senate, https://www.senate.gov/about/traditions-symbols/seniority.htm [https://perma.cc/N5M8-HQ8D] (last visited Oct. 26, 2025). While each chamber is required to vote on the committee rosters determined by the party caucuses, the votes are along strict party lines and rarely contested. See Schneider, supra note 50, at 6; see also Celler, The Seniority Rule in Congress, supra note 41, at 160 (noting that while the seniority rule is a “long-standing congressional tradition,” the rules are informal and not sacrosanct). One commentator explains that informal seniority practices likely first evolved in the Senate. See Goodwin, supra note 44, at 412–13 (explaining why seniority rules are not formal standing rules in Congress). Duly elected Senators were wary of conferring committee-appointment powers to the unelected presiding officer of the Senate, the Vice President of the United States. Id. at 417. In the House, members rose up against an unpopular Speaker of the House, took way the officer’s appointment powers, and instituted the seniority system. Id. This history belies a practical benefit of using informal practices to reward seniority instead of standing rules. If committee seniority was a standing rule, “incompetents or outliers would inevitably prevail on some committees in some Congresses.” Krehbiel, supra note 26, at 143. Cultural norms like seniority practices are malleable and allow the House or Senate to remove (or decline to appoint) a bad chair.

78. See Krehbiel, supra note 26, at 141 (discussing the seniority system and informational theory).

79. Goodwin, supra note 44, at 412 (quoting Ernest S. Griffith, Congress: Its Contemporary Role 18 (1956)). Professor Goodwin notes that seniority in Congress determines far more than just committee and subcommittee membership or chairs, “[i]t affects the deference shown legislators on the floor, the assignment of office space, even invitations to dinners.” Id.

80. Barbara Hinckley, Seniority in the Committee Leadership Selection of Congress, 13 Midwest J. Pol. Sci. 613, 615 (1969).

81. Celler, The Seniority Rule in Congress, supra note 41, at 162.

82. See Goodwin, supra note 44, at 413–14 (describing committee seniority protocols); see also Schneider, supra note 50, at 8 (discussing congressional committees and chamber action).

83. See Schneider, supra note 50, at 5, 8; see also Goodwin, supra note 44, at 413 (describing committee seniority protocols). For example, if a newly elected Senator is appointed with an incumbent Senator, the incumbent is ranked ahead of the freshman. See id.

84. Goodwin, supra note 44, at 413–14.

85. See id. at 414.

86. Hinckley, supra note 80, at 621.

87. Goodwin, supra note 44, at 416.

88. See Groseclose & King, supra note 25, at 208 (discussing powers of chairs); see also Celler, The Seniority Rule in Congress, supra note 41, at 166 (“It is true that the prerogative of calling meetings and the control of agendas gives some chairmen wide powers, sometimes amounting to the practical equivalent of a veto.”); Schneider, supra note 19, at 2 (discussing the committees chair’s prerogatives).

89. See Groseclose & King, supra note 25, at 210 (discussing the gatekeeper function of committees and chairs).

90. See id. at 210–11. Professors Groseclose and King suggest that a chair’s gatekeeper power is somewhat inflated because the chair will usually consider the preferences of the majority before acting to kill a bill. Id.

91. See Schneider, supra note 19, at 2 (describing the power of the chair).

92. Id.

93. See Krehbiel, supra note 26, at 141–42 (explaining the informational benefits of seniority and specialization).

94. Id. at 142.

95. See id.

96. See id. at 84, 87, 142. (explaining the informational benefits of seniority and specialization).

97. Glossary of Legislative Terms, CONGRESS, https://www.congress.gov/help/legislative-glossary# [https://perma.cc/N4NE-6QHC] (last visited Sep. 10, 2025).

98. Glossary Term | Report, U.S. Senate, https://web.archive.org/web/20200326142216/https://www.senate.gov/reference/glossary_term/report.htm [https://perma.cc/L269-L8H5] (last visited Sep. 8, 2025).

99. Committee FAQs, Off. of the Clerk of the U.S. House of Representatives, https://web.archive.org/web/20200705015642/http://clerk.house.gov/committee_info/commfaq.aspx [https://perma.cc/8J8M-7YF4] (last visited Sep. 8, 2025).

100. Senate, Standing Rules of the Senate, S. Doc. No. 113–18, at 37–38 (2013), https://www.rules.senate.gov/imo/media/doc/CDOC-113sdoc18.pdf [https://perma.cc/SRY8-SYCY] (Rule XXVI).

101. Wickham, supra note 35, at 222–23.

102. See George A. Costello, Average Voting Members and Other “Benign Fictions”: The Relative Reliability of Committee Reports, Floor Debates, and Other Sources of Legislative History, 1990 Duke L.J. 39, 43 (examining the Courts’ use of legislative history).

103. See Comm’r v. Acker, 361 U.S. 87, 94 (1959) (Frankfurter, J., dissenting). Interestingly, a number of U.S. Supreme Court Justices have served in Congress, but not since the middle of the last century. The last Justice to serve in the Senate was Justice Harold Burton from 1941 to 1945. And the last Justice to serve in the House of Representatives was Justice Fred Vinson from 1924–1929 and 1931–1938. See List of U.S. Supreme Court Justices Who Also Served in the U.S. Congress, WikipediA, https://en.wikipedia.org/wiki/List_of_U.S._Supreme_Court_justices_who_also_served_in_the_U.S._Congress [https://perma.cc/BY7R-2T3S] (last visited Oct. 10, 2025). Perhaps, this lack of direct experience with Congress’s work helps explain the Court’s hostility to its work product.

104. Zuber v. Allen, 396 U.S. 168, 186 (1969) (comparing the value of floor debates to committee reports in gleaning the intent of the legislature).

105. Garcia v. United States, 469 U.S. 70, 76 (1984) (confirming that committee reports are more authoritative than floor debates).

106. Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 575 (2005) (Stevens, J., dissenting).

107. Id. Justice Stevens inadvertently helped to coin a new title for a theory of statutory interpretation called the “Busy Congress” model. See Charles Tiefer, The Reconceptualization of Legislative History in the Supreme Court, 2000 Wis. L. Rev. 205, 230–32 (describing Justice Stevens’s busy-legislator model for statutory interpretation).

108. See Exxon Mobil Corp., 545 U.S. at 575 (Stevens, J., dissenting).

109. Bank One Chi., N.A. v. Midwest Bank & Tr. Co., 516 U.S. 264, 276 (1996) (Stevens, J., concurring).

110. Id. at 276. Justice Stevens argued that, because rank-and-file members of Congress appropriately rely on legislative committees, the intent of those charged with drafting the bill—committee and subcommittee members—“is properly regarded as the intent of the entire Congress.” Id. at 276–77.

111. See supra text accompanying notes 107–11.

112. See Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes, 65 S. Cal. L. Rev. 845, 860–64 (1992). Responding to the rise of textualism on the Supreme Court and the concomitant decline of legislative history, Justice Breyer offers five circumstances in which courts should reasonably use history—including committee reports—to help resolve statutory questions: (i) avoid absurd results; (ii) discover drafting errors; (iii) identify when Congress intended a specialized meaning; (iv) identify Congress’s purpose; and (v) choose among reasonable alternatives. Id. at 860–61.

113. See id. at 858. Justice Breyer artfully avoids labeling his detractors or identifying the textualists to whom the article is clearly addressed. Instead, he identifies them inferentially as critics of legislative history. See, e.g., id. at 861 (noting “five categories of criticism” related to the use of legislative history without labeling or identifying anyone in particular).

114. Id. at 858. Here, Justice Breyer argues that Congress operates through a form of “downward delegation” with ultimate legislative authority residing in elected legislators, who are required to rely on staff to draft bills and reports. Id. at 859. This process involves important extra Congressional stakeholders—such as lobby groups, unions, business groups, Executive Branch agencies, and public interest groups—who work with Congressional staff on behalf of its elected members to solve important problems. See id. at 858–59. Justice Breyer acknowledges the “busy legislator” and the necessity of institutional aids—such as committee reports—to allow Congress to law-make. See generally id. at 858–61 (describing institutional norms in Congress).

115. Id. at 859.

116. Tapia v. United States, 564 U.S. 319, 331–32 (2011). Section 3582(a) of the Sentencing Reform Act of 1984 stipulates the factors a court may consider when imposing imprisonment. The section states that a court “in determining whether to impose a term of imprisonment, and . . . in determining the length of the term, shall consider the factors set forth in section 3553(a) . . . recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation.” 18 U.S.C. § 3582(a) (2018).

117. Tapia, 564 U.S. at 330–31.

118. See Carr v. United States, 560 U.S. 438, 457–58 (2010) (discussing SORNA’s legislative history materials).

119. Digit. Realty Tr., Inc. v. Somers, 138 S. Ct. 767, 782–83 (2018) (Sotomayor, J., concurring).

120. Id. (citations omitted).

121. See supra Section II.A.

122. . See generally Donald R. Matthews & James A. Stimson, Yeas and Nays: Normal Decision-making in the U.S. House of Representatives (1975) (studying how congressmen are able to vote in a reasonably rational fashion considering the quantity and complexity of the issues, the time restraints, and insufficient resources available). Although Professor Matthews wrote the monograph while at the University of Michigan, he spent most of his career teaching and researching at the University of Washington. Professor Matthews died in 2007. See Donald Matthews (Political Scientist), WikipediA, https://en.wikipedia.org/wiki/Donald_Matthews_(political_scientist) [https://perma.cc/39FT-LBL9] (last visited Sep. 12, 2025); Matthews, Donald R. 1925-2007 (Donald Rowe Matthews), encyclopedia, https://www.encyclopedia.com/arts/educational-magazines/matthews-donald-r-1925-2007-donald-rowe-matthews [https://perma.cc/A7SR-8HUP] (last visited Oct. 8, 2025). Professor Stimson is the Raymond Dawson Distinguished Bicentennial Professor of Political Science Emeritus at the University of North Carolina at Chapel Hill. See James Stimson, WikipediA, https://en.wikipedia.org/wiki/James_Stimson [https://perma.cc/UN92-JWJC] (last visited Sep. 22, 2025).

123. Matthews & Stimson, supra note 122, at 2, 110–11. Over a decade earlier, the Brooking Institute’s Charles Capp observed in a seminal monograph that members of Congress “accomplish their business largely by relying on the judgments of others.” Charles L. Clapp, The Congressman: His Work as He Sees It 24 (1963). Matthews and Stimson likely sought to test this observation using empirical evidence and hypothesis.

124. See Matthews & Stimson, supra note 122, at 128–29, 150–51; see Glossary of Legislative Terms, supra note 97 (defining a roll-call vote).

125. Matthews & Stimson, supra note 122, at 11–12 (emphasis omitted); Voting, Hist., Art & Archives: U.S. House of Representatives, https://history.house.gov/Exhibitions-and-Publications/How-the-House-Works/Working-in-the-Chamber/Voting/?utm [https://perma.cc/6GBX-D5NW] (last visited Oct. 8, 2025). To be fair, theories on legislative decision-making in general and cue-taking in particular were already in the zeitgeist of 1970s political science departments. For example, Lawrence Grant, then an assistant professor of political science at the University of Kentucky, published a paper called Specialization as a Strategy in Legislative Decision-Making. See generally Lawrence V. Grant, Specialization as a Strategy in Legislative Decision-Making, 17 Am. J. Pol. Sci. 123 (1973) (discussing specialization and cue-taking in congressional voting); Lawrence Grant, Bradshaw Funeral, https://www.bradshawfuneral.com/obituaries/lawrence-grant [https://perma.cc/W9DX-6EXR] (last visited Oct. 22, 2025). Professor Grant hypothesized that “decisions in legislative bodies such as the U.S. House of Representatives are primarily the decisions of specialists . . . and . . . votes . . .are the results of what we might (loosely) call varying coalitions of specialists with non-specialists.” Id. at 125. He was able to predict (mathematically) how a member would vote based on his or her interactions with a so-called “primary decision-maker.” Id. at 126–29.

126. Matthews & Stimson, supra note 122, at 45 (emphasis omitted).

127. Id. at 45. One member of the House reported to the authors, “I have to vote on 150 different kinds of things every year—foreign aid, science, space, technical problems, and the Merchant Marine, and Lord knows what else. I can’t possibly become an expert in all of these fields.” Id. at 17–18. In the fifty years since the study, bills on the floor have only become more varied and complex. Marc Clauson, Length of Legislation: Why Bills Have Grown Significantly Longer Over the History of the United States Congress, Constituting Am., https://constitutingamerica.org/length-legislation-why-bills-grown-significantly-longer-over-history-us-congress-guest-essayist-marc-clauson/ [https://perma.cc/ZP2T-UPLT] (last visited Oct. 10, 2025). Due to time pressures, Matthews and Stimson learned in the study that most members spent less than thirty minutes per day on any bill that was outside their area of expertise. Matthews & Stimson, supra note 122, at 20.

128. See Matthews & Stimson, supra note 122, at 44–45.

129. See id. at 150–51.

130. See id. at 162, 176–79. A coded questionnaire is the process of sorting interview responses into categories to allow for analysis of the responses akin to multiple-choice questions. A list of the interview questions is reprinted in Appendix A of the study. Id. app. at 162. A short discussion of the sampling technique is found in Appendix B. Id. app. at 179.

131. Id. at 13.

132. Id.

133. Id. at 77. The authors concluded that most members take voting cues frequently or almost always. See id. at 60 (reporting results in Table 4-1).

134. Id. at 62.

135. Id. at 78–79, 81, 84–35.

136. Id. at 82 fig. 5.2.

137. Id. at 82.

138. See id. at 89–90.

139. Id. at 90. Matthews and Stimson also asked the participants about the attributes of cue-givers. Id. at 84–89. The authors learned that a number of factors—friendship, trust, complementary views, reciprocity—helped determine to whom a member would seek cues. Id. The authors also learned that groups other than the reporting committee could serve as cue-givers, such as party leaders, the state party delegation, and the President. Id. at 92–102.

140. See id. at 90–9 1, 106–07.

141. Id. at 81–82 fig. 5.2.

142. Id. at 113–14.

143. Id. While the author’s cue-taking theory is designed to explain so-called “normal” voting—votes characterized by low information and low importance, the computer program crunched all voting decisions. Id. at 116.

144. Id. at 114, 122–23.

145. Id. at 124.

146. Id.

147. Id. (emphasis omitted). The authors also looked at the data by year (1958 through 1969) and noted little variation by year, suggesting the model worked well through time. Id. at 124–25.

148. Id. at 145.

149. Id. at 150–51. The authors admit some limitations to their cue-taking theory. They concede that the theory is limited to final roll-call voting decisions, that the study did not look at how cue-takers chose their expert cue-givers, that the study did not analyze earlier decisions prior to the roll-call vote, and that the study did not look at whether the enacted policy results in good, representational legislating. See id. at 151–54.

150. Id. at 158.

151. Id.

152. Id. at 159–60. The authors note that with the increasingly technical complexity of lawmaking, some legislatures may have abdicated its chief policymaking function to the administrative state or to the executive, but Congress’s dependence on experts has allowed it to make rational and intelligent decisions despite the complexity of modern policymaking. Id. at 160.

153. Richard Born, Cue-Taking Within State Party Delegations in the U.S. House of Representatives, 38 J. Pols. 71, 74–75 (1976) [hereinafter Born, Cue-Taking]; see supra text accompanying notes 122–152; Richard Born, Vassar, https://www.vassar.edu/faculty/born [https://perma.cc/3M36-333U] (last visited Oct. 24, 2025). A state party delegation in the House is simply a group of copartisans elected within a state. Changes in State Delegation Party Majorities, Hist., Art & Archives: U.S. House of Representatives (Jan. 3, 2025), https://history.house.gov/Institution/State-Delegations/State-Delegation-Majorities/ [https://perma.cc/7QC8-CJHD]. For example, all Democratic members of the House elected from the state of Tennessee comprises the state party delegation.

154. Born, Cue-Taking, supra note 153, at 74–75.

155. See id. at 72.

156. Id. at 73.

157. Id. at 74, 93–94.

158. Id. at 93–94. Professor Born suggests that the earlier interview-based studies may have exaggerated the role of state party delegation in voting cues. Id.

159. See generally William T. Bianco, Reliable Source of Usual Suspects? Cue-Taking, Information Transmission, and Legislative Committees, 59 J. Pols. 913 (1997) (examining whether committees that resemble the full House impact its relevance as a source of cue-taking).

160. Id. at 920.

161. Id. at 923.

162. See generally Seth E. Masket, Where You Sit Is Where You Stand: The Impact of Seating Proximity on Legislative Cue-Taking, 3 Q.J. Pol. Sci. 301 (2008) (using three decades of roll call votes in the California Assembly to analyze the extent to which legislators sitting next to each other influence each other’s voting behavior).

163. Id. at 310. In another fascinating study, Dr. Adam Zelizer of the University of Chicago considered whether pre-briefed members of a state legislature served as cue-givers to their unbriefed office mates. Zelizer, supra note 12, at 341–42. Dr. Zelizer studied an informal legislative network as opposed the more formal networks, like committee leaders. In the study, a staff member from the veterans legislative caucus briefed selected legislators on a number of veteran-related bills. Id. at 344. The study examined how many of the briefed legislators and their unbriefed office-mates cosponsored one or more of the veterans’ bills. The idea was that a legislator who cosponsored one of the bills took voting signals or cues from the staffer or the briefed office mate “expert.” Id. at 344–45, 348. The study demonstrated that cosponsorship rates (cue-taking) were higher for both the briefed legislator and the legislator’s officemates. Id. at 346–47.

164. In their seminal monograph, Matthews & Stimson focused on “normal decision-making” by rank-and-file members of the House. See supra note 125 and accompanying text (emphasis omitted).

165. William Minozzi & Craig Volden, Who Heeds the Call of the Party in Congress?, 75 J. Pols. 787, 791 (2013).

166. Id. at 795, 799.

167. See supra text accompanying notes 122–50.

168. See generally Janet Box-Steffensmeier, Josh M. Ryan & Anand Edward Sokhey, Examining Legislative Cue-Taking in the US Senate, 40 Legis. Stud. Q. 13, 41 (2015) (finding that committee leadership and seniority generally predict cue-giving in the U.S. Senate).

169. Id. at 15 (discussing voting and information in the Senate).

170. See id. at 16.

171. Id. at 16–17. The authors selected to study sixteen votes from the 108th Congress that “vary across the dimensions of salience, partisanship, and complexity.” Id. at 21–22.

172. See id. at 21 (discussing data and methods of analysis).

173. Id. at 37.

174. See id. at 44.

175. Id.

176. Id. at 45.

177. See generally Christian Fong, Expertise, Networks, and Interpersonal Influence in Congress, 82 J. Pols. 269 (2020) (finding that “[l]egislators often must vote on complex issues that they do not fully understand. . . .[and] that legislators cope with incomplete information by taking cues from trusted peers who possess expertise that they themselves lack.”).

178. Id. at 270.

179. Id. Professor Fong’s data set included midsession assignments in Congress from 1979–2015. The period yielded 289 midsession assignments and over 150,000 observations to analyze. Id. at 275.

180. See id. at 270.

181. Id. at 273–74.

182. Id. at 276–77.

183. Id. at 276, 278.

184. Id. at 281.

185. See generally Kevin Tobia, Brian G. Slocum, & Victoria Nourse, Progressive Textualism, 110 Geo. L.J. 1437 (2022) (critiquing modern applications of textualism).

186. See supra Part I.

187. See supra Part I.

188. See, e.g., Bank One Chi. v. Midwest Bank & Tr. Co., 516 U.S. 264, 279 (1996) (Scalia, J., concurring in part and concurring in the judgment) (suggesting members were likely unaware of the drafting evolution); supra note 7 and accompanying text.

189. For example, recently in Biden v. Nebraska, Justice Amy Coney Barrett discusses textualism and interpretive canons that advance extra-textual values. Biden v. Nebraska, 143 S. Ct. 2355, 2378–80 (2023) (Barrett, J., concurring). Here, Justice Barrett argues that the Court’s now-obsolete major questions doctrine was not a substantive canon but instead more analogous to a contextual canon. Id. at 2376, 2378–79.

190. At a lecture at Harvard Law School in the fall of 2015, Justice Elena Kagan famously admitted that “we’re all . . . textualists now.” See Harvard Law School, supra note 5, at 08:28 (noting that the Supreme Court has adopted textualism as its dominant interpretative approach).

191. Bank One Chi., 516 U.S. at 279 (Scalia, J., concurring) (citation omitted).

192. See id. at 279–80 (quoting Justice Stevens’s concurrence in second quotation).

193. See supra Part III.

194. See supra Section II.A.1.

195. See supra Section II.A.

196. See supra Section II.A.2.

197. See supra Section II.A.3.

198. See supra Sections II.A.3, II.B.

199. See supra Part III.

200. See supra Part III.

201. See supra Part I.

202. See supra Part I.