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Chapter 10 |
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The Constitution gives the most specific powers to the Congress, and the Founders saw the Congress as the most powerful branch of government. The constitutional powers of Congress are enumerated in Article I. These include the power to appropriate money, authorize borrowing, levy taxes, regulate the currency, regulate interstate commerce, establish lower federal courts, maintain the armed forces, declare war, propose amendments to the Constitution, and (in what is called the "Necessary and Proper Clause" or the "Elastic Clause") "Make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other powers vested by this Constitution in the Government of the United States." In addition, the House originates tax bills and bringing impeachment charges against the president (as it did against President Clinton in 1998) or other federal officials. Powers of the Senate alone include selecting the president if no candidate wins a majority of Electoral College votes, ratifying treaties, confirming Supreme Court and other high executive appointments, and conducting trials following impeachments by the House.
The Founders deliberately created rivalry between the branches of government and over time each branch has attempted to place itself as first among equals. Throughout most of the twentieth century, Congress acted as a deliberative body and allowed the president to assume a role of leadership. The Congress can defeat presidential proposals, deny boney, delay or reject presidential appointments, investigate executive agencies and hold committee hearings. Congress can also investigate judicial appointments, change the jurisdiction of federal courts and try to overcome judicial decisions by proposing Constitutional amendments.
Congress is a bicameral institution composed of two houses. Laws must be approved by both the House of Representatives and the Senate. The House is composed of 435 members drawn form approximately equal size population districts, while Senators represent entire states. The House members serve two year terms while Senators have six year terms. All revenue or money bills must begin in the House according to the Constitution as the House was seen as more responsive to the people. The Senate is a smaller, more deliberative body with powers not afforded the house, including the power to ratify treaties and the power to confirm presidential appointments such as judges, ambassadors and cabinet members.
Congress usually follows the president in the areas of foreign affairs, as the Constitution grants him more of the powers typically associated with these matters. While the president is "Commander-in-chief," only Congress can declare war, and it has chosen to do so only five times in the nation's history. The struggle in Vietnam led Congress to reassert its authority in military and foreign affairs, as it sought to reign in the increasing powers of the president. Congress passed the War Powers Act in 1973 to try and curb the president's ability to send troops into combat. The Act has not been entirely successful.
The Constitution grants the power of the purse -- the power to authorize expenditures and taxes -- solely to Congress, and this is its greatest power. Each year Congress sets the national government's budget after receiving recommendations from the President. Through its ability to decide appropriations Congress exercises power over all areas of government, including the military and foreign affairs.
Congress also has oversight of the federal bureaucracy. Oversight means monitoring the executive branch agencies to insure they are executing the laws of the land and appropriately spending the money Congress has authorized for them. Oversight is one of the checks and balances built into the governmental system. Most oversight is conducted through committees and subcommittees.
Congress provides advice and consent on all treaties negotiated by the executive branch. All treaties must be approved by a two-thirds vote in the Senate before they are binding. The Senate can also express reservations concerning a treaty and/or instruct the president in how the treaty should be interpreted. In addition, the Senate must approve key executive office appointments, including ambassadors and Cabinet members, as well as presidential appointments to the federal bench. Confirmation of appointments requires only a majority vote of the Senate.
Congress holds hearings in order to bring public attention to issues it believes is important. Congress may also hold investigative hearings and does so regularly. While the Supreme Court has ruled these investigations must have some legislative purpose, Congress has most often used them for political purpose in order to rally support for a particular cause, attack the president, focus attention on an issue or to gain media attention. While Congressional investigations do not result in criminal punishments, the results can be given to the Justice Department so that criminal charges can be initiated.
One of the most powerful charges given to Congress is the right to impeach and remove from office the president and federal judges for "treason, bribery, and other high crimes and misdemeanors." The process must begin in the House where charges of impeachment need only simple majority vote. A trial may then ensue in the Senate. Only the Senate, following the trial, may remove an official from office and only with a two-thirds vote. Only Presidents Andrew Johnson and Bill Clinton have been impeached by the House; in both cases, the Senate failed to vote to convict.
Congressional Apportionment and Redistricting
The Constitution established the decennial (10-year) census as a means of assuring that each state would be allotted a number of members of the House of Representatives proportional to their populations. Surprisingly, the Constitution does not set the size of the House. The House does that itself, but the number has been fixed at 435 since 1910. As a result, the population of House districts has expanded over the years; after the 2000 census House districts have a population of approximately 650,000.
Apportionment is the allocation of House seats to the states following each census. Malapportionment is redistricting which leads to districts with significantly different populations. In 1962 the Supreme Court held in Baker v. Carr that only redistricting based on the principle of "one man, one vote" would satisfy the Equal Protection Clause of the Fourteenth Amendment. Historically, many groups have been undercounted in the census, and demographic experts have suggested using sampling as a better way to account for these underrepresented groups. A 1999 Supreme Court decision held that the Census Act of 1976 prohibits sampling for purposes of apportioning House members, forcing the Census of 2000 to rely on an effort to enumerate everyone, a strategy some experts held to be less accurate than sampling. Redistricting is the redrawing of congressional voting district lines following a change in apportionment in a state. Redistricting is done by state legislatures but often end up in the federal courts. Gerrymandering is the drawing of district lines to advantage one party, race, or other group. Splintering, in which a strong minority is divided up so that their votes are divided, and packing, in which partisan voters are concentrated in a single district so as to waste their majority votes, are used to gain political advantages.
Traditionally, redistricting has only been done every ten years. Recently, several states, notably Texas, have sought to redistrict in the years between the census. This could lead to redistricting each time party control of a legislature changes. Incumbent gerrymandering is used to keep incumbents in office and "protect" their seats. In order to protect against racial gerrymandering, whereby districts have been drawn in the past to prevent racial minorities from winning Congressional seats, the 1965 Voting Rights Act required states with a history of racial discrimination to submit redistricting plans for approval to the Justice Department. In 1986 the Supreme Court in Thornburg v. Gingles interpreted the Voting Rights Act of 1982 to require states to redistrict in a way which maximized minority representation in Congress. However, when this led to bizarre-shaped districts like North Carolina's 12th, later Supreme Court decisions held redistricting could not be based on race as a predominant factor. In addition, in 2003 the Court moved to "unpack" some heavily majority-minority districts in Georgia in the belief this would allow African-American voters to wield more influence more districts and gain more real representation.
Getting to Capitol Hill
Members of Congress mainly come from backgrounds in law, business and public service. They are increasingly career politicians, who began at young ages to prepare themselves for lives of public service. They use early jobs to make political contacts and connections, find financial backers, and learn how to use the media. Because of the great advantages enjoyed by incumbents, newcomers are cautioned to wait and run for open seats being vacated by incumbents or for new seats created by redistricting. Once elected, most members of Congress enjoy safe seats where they win re-election by large margins. Every session of Congress welcomes about fifteen percent new members; this turnover occurs mainly because of retirements, resignations or reapportionment.
In the 1990s public anger and distrust toward Congress spurred a movement to apply term limits to members. Several states passed laws to limit the time a member could serve in Congress, believing this would make members more responsive to the people. Opponents, however, charged this would create more dependence on interest groups to supply needed information to young, inexperienced members. The Supreme Court in 1995 ruled that term limits were unconstitutional.
Fewer than half of citizens can name their representative in Congress, and fewer still know the policies that representative advocates. Turnout in congressional general elections is only around 35 percent in off year (non-presidential) elections. Because of a lack of public awareness, Congressional voting is largely independent of presidential voting. The voting public generally casts their ballots for presidential and congressional candidates based on differing expectations. Raising the ever-increasing funds required to win election garners much of the time of members of Congress. In almost 90 percent of congressional races, the candidate who spends the most money wins.
Party Fortunes in Congress
From 1954-1994 Democrats controlled both houses of Congress. During most of this time, more people in the country identified themselves as Democrats than Republicans and party identification plays a prominent role in congressional elections. Voters also tended to vote "local", thus preferring candidates whom they believed would bring the most money and goods to their district. Democrats appeared more successful in satisfying these wishes. Also, the Democrats enjoyed all the advantages of incumbency.
In 1994 Republicans swept into control of the House of Representatives and the Senate during off year elections. The Republicans under Newt Gingrich nationalized the midterm elections and spoke of less government. However, Republicans failed to pass constitutional amendments implementing term limits and balancing the budget. In addition, President Clinton vetoed many of their attempts to cut popular government programs as part of their balanced budget attempts. The Congress and President deadlocked over the budget and the government temporarily shut down; the public blamed the Republicans who began to lose some popular support. While Republicans retained majorities in the House in 1996 and 1998, the Democrats gained seats. In the 2000 elections the voters were very divided. Republicans kept control of the House, but the Senate divided evenly at 50 each. What should have been Republican control because of the tie-breaking vote of the Republican Vice-President Dick Cheney, was lost when Vermont Republican Senator Jim Jeffords left his party to become and independent and cast his votes with the Democrats.
In a rare outcome in the 2002 congressional elections the Republicans gained seats and retook control of both House and Senate. Usually, the president's party loses seats in the midterm elections. Life in Congress
In Congress attention to one's constituency is the key to survival. For House members that means their district and for Senators it is their state that must come first. The Constitution requires only that members of the House of Representatives be residents of the state they represent, be U.S. citizens for seven years, and be at least twenty-five years of age. Senators must be residents of the state they represent, and citizens for nine years, and be at least thirty years of age.
Except for a very short period following the Civil War, African Americans were largely excluded from membership in Congress until the Civil Rights Acts of the 1960s. Today African Americans hold 9 percent of the seats in Congress compared to their 12 percent in the population. Hispanics hold 5 percent of the seats compared to their more than 12 percent of the population. Representation of women has also been increasing; after the 2000 election, women held 59 seats in the House and 14 in the Senate although this is still far less than their proportion in the population.
Members of Congress increasingly depend on their staff members for information and also political recommendations. Staff members for Congress now total over 25,0000 people, with each representative having twenty or more staff members. They are accorded money and office space in both Washington and their home districts and states. Each House member is afforded $500,000 for office and staff needs, while Senators receive $2 million or more depending on the size of their state. Beyond staff, members of Congress can tap the immense support services of the Library of Congress and its Congressional Research Service, the General Accounting Office, the Congressional Budget Office, and the Government Printing Office.
Members of Congress work twelve- to fifteen-hour days, including two to three hours of committee/subcommittee meetings, two or three hours on the floor of Congress, three to four hours meeting with constituents and lobbyists, and additional hours meeting with staff, attending meetings, and so on. At each session, a member must vote on nearly a thousand bills. Congress feels it earns the $154,700 salary each member receives yearly.
Home Style
Home style is a term for the activities of members of Congress in promoting themselves to their constituents. Casework is a major strategy for doing this, such as helping constituents solve Social Security problems, or to apply for federal jobs. On a grander scale, pork barreling involves securing federally funded projects, grants, contracts, and loans for constituents. Members spend as much as 100 days a year in their home districts in order to stay visible. They also make great use of their franking privilege (free mailing) to inform their constituents about what they are doing or "puff" their image.
Members of Congress move between two worlds. They represent their constituents and spend time at home cultivating their image and campaigning. They also spend a great deal of time in Washington passing the laws. This may entail living two different lifestyles.
Organizing Congress: Party and Leadership
The Democratic and Republican Parties are the principle agents helping to organize the activities of Congress. The majority party selects the leadership in each body, selects the chairs of every committee and receives a majority on each committee. The leadership of Congress is nominally selected by vote of the entire House or Senate, but in reality is selected by the parties meeting in conference or caucus. In the House the most important leader is the Speaker of the House (currently Dennis Hastert, R-IL), who works with the Majority Leader, who is assisted by the Majority Whip, to mobilize votes for bills he wishes to see passed. The Speaker also works with the Rules Committee to set the terms on which bills are debated and voted upon on the floor. The minority party also elects a Minority Leader and Minority Whip, to be a liaison to the Speaker and to mobilize their party's votes.
Organization is similar in the Senate, but the President Pro Tempore, who usually presides in place of the Vice President (who can only vote in the case of a tie), is a largely symbolic post, much in contrast to the House Speakership. Senate leadership is actually in the hands of the Senate majority leader, but the Senate majority leader is not as powerful in that body as the Speaker is in the House. The parties also maintain various important committees, including the House and Senate Democratic and Republican Policy Committees. Movement up the party hierarchy is the most common way of attaining a leadership position, with a traditional succession from whip to majority leader to Speaker. Congressional leaders often contribute to colleagues campaign funds through their own PACs.
In Committee
Most of the real work in Congress is done in committee. Standing committees are permanent committees in the House or Senate, mandated to deal with matters in specific policy areas (for example, the Armed Services Committee or the Judiciary Committee). Committees screen the 8,000 to 10,000 bills introduced each session, usually referring them to a specialized subcommittee, while the full committee usually simply ratifies the work of the subcommittees, perhaps after raising questions about particular points. Committees also draft legislation.
The Appropriations Committees in both houses of Congress are the most powerful committees, followed by the Ways and Means in the House and the Finance Committee in the Senate. All of these committees deal with money and taxes. In the House, the Rules Committee is also very important. Much work of Congress is done in the subcommittees which have fixed jurisdictions. Subcommittees decentralize power in Congress. Chairing a committee or subcommittee provides members the opportunity to exercise power, attract media attention and improve chances for reelection. The chairs are very powerful and can guard their power. Since so much power resides in the committees, members vie for membership on key committees. They seek assignments that will give them influence, allow them to exercise power and improve chances for reelection. Party leaders determine committee assignments, but seniority plays the key role.
Public hearings by congressional committees show interest in an issue and allow for public input on a matter while also vying for public support. After the hearings, committees hold markup sessions, where there is line-by-line consideration of the bills' wording. Most of the detailed work is done during markup. Remember, most bills die in committee.
On the Floor
Bills favorably reported by committee are placed on the House or Senate calendar, which, in spite of its name, is simply a listing without chronological order. Many bills die on the calendar because they are never considered on the floor. In the House, the Rules Committee acts as a "traffic cop." Its rules are instructions which determine if and when a bill will be considered on the floor, and how. A closed rule forbids amendments and speeds consideration. A restricted rule allows only certain amendments to be considered. An open rule, of course, permits unlimited amendments.
The Senate has no Rules Committee but instead relies on a unanimous consent agreement negotiated between the majority and minority leaders to govern consideration of a bill. The Senate also differs in permitting filibusters, which allow senators to delay or even kill bills by unlimited debate, though unlimited debate may be prevented if 60 senators vote for cloture. Cloture was once rare but is becoming more common. The Senate also allows unlimited amendments, which encourages riders: amendments unrelated to the substance of a bill, slipping in "back-door" legislation.
Votes may be by voice or roll-call, with only the latter recorded in the Congressional Record. If both houses pass a bill, but wording is not identical (which is typical), a conference committee composed of members of each house meets to hammer out a compromise. Conference committees, which are temporary, are very powerful because their compromises may lean heavily to the House version or the Senate version, and may even introduce new elements not really considered by either house. However, they rarely change provisions for which both houses have voted. Each house must accept the conference report for a bill to be sent to the president to be signed into law, provided the president does not veto it.
Decision Making in Congress
A number of factors determine how members of Congress vote. Party votes are those in which a majority of Republicans oppose a majority of Democrats. Party voting has increased over the years and now characterizes about 60 percent of all roll-call votes. Party voting is more common on votes on amendments than on the final bills. That is, once compromises are over on a bill, such as civil rights legislation, members are more likely to put themselves on record in favor of it regardless of party, positioning themselves to defend their voting records in terms of votes on final bills. Closely tied to party, presidential support or opposition is also important, though in times of divided government it may lead to gridlock, as it has since 1995 under a Democratic president and Republican Congress. Other decision-making factors include constituency influence, interest group influence, and personal values. Some members see themselves as delegates obligated to vote according to voter opinion in their districts, while others see their role as being trustees who should vote for what they see as good for their districts and for the nation as a whole, regardless of opinion polls.
Customs and Norms
Congress imposes strong informal norms and customs on its members. Traditionally, civility has been required: no angry, personal attacks on the character of other members. Instead, members refer to each other as "the honorable representative from Pennsylvania" or "my esteemed colleague from Arizona." A norm that used to be expected, the norm of apprenticeship, declined after 1970 and has now has virtually disappeared in modern Congress; new members of Congress no longer feel the need to cooperate and be seen but not heard. Other norms include calls for members to specialize in particular policy areas and to defer to party leadership. Bargaining is the lifeblood of Congress, and an openness to compromise is expected, with the corollary that reciprocity is also expected when support is given to a bill one favors. Logrolling is an extreme form of reciprocity in which there is an explicit mutual agreement to support one another's constituent-oriented projects. Party leaders must bargain to gain member support and they often grant tangible benefits to their fellow members.
Congress is criticized for its failure to enact legislation often referred to as gridlock. So what contributes to this gridlock? Studies show it results from:
1) divided party control of the presidency and Congress
2) divided party control of the House and Senate
3) greater ideological polarization of the parties
4) the willingness of members of the Senate to filibuster.
In addition the system of separation of powers and checks and balances contributes to gridlock.
Congressional Ethics
Congress has enacted formal rules of ethics that govern its members. These rules include financial disclosure to prevent conflicts of interest, a ban on honoraria for appearances and speeches, a ban on personal use of campaign funds, limitation of gifts to $200 for representatives and $300 for senators, limits on free travel paid by corporations (up to 4 days domestic or 7 days foreign are still allowed), and a ban on lobbying by former members of Congress for one year.
When violations occur, Congress has the option of voting censure (a formal reprimand thought to be humiliating and possibly damaging to reelection chances) or expulsion. Expulsion requires a two-thirds vote and is very rare, even in cases of criminal misconduct, partly because such behavior often leads to defeat at the polls.
Chapter Objectives
After mastering the concepts in this chapter, you will be able to
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