Chapter 3. The Legislative Branch: The People s Branch that the People Hate Last Updated: Copyright

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1 Chapter 3. The Legislative Branch: The People s Branch that the People Hate Last Updated: Copyright OUTLINE I. What You Know and Like About Congress Not Much II. The Legislative Branch As Laid Out in the Constitution III. The Evolution of Congress: From Part-time Citizen Legislators to Full-time Career Professionals IV. Paradoxical Views of Congress Today: Throw the Bums Out and High Reelection Rates A. Job Approval Ratings of Congress How Low Can They Go? B. Who Gets Elected and Why They Usually Stay a Long Time V. The Conflicting Functions of Congress A. Representation B. Policy-making C. Other Related Functions: Oversight and Deliberation VI. The Organization of Congress VII. Differences Between the House and the Senate VIII. The Obstacle Course for Legislation

2 A. Introduction of a Bill B. Committee and Subcommittees C. The House Rules Committee and the Senate s Unanimous Consent Agreements D. Floor action E. Conference Committees F. Presidential Options, Vetoes and Overrides G. Evaluation Slow Going, Perhaps More than the Founders Intended IX. Policy Implications Energy Policy TEXT I. What You Know and Like About Congress Not Much As you should remember from the chapter on the Constitution, the Congress, or at least one house in Congress, the House of Representatives, was the only part of the national government for which the Founders specified direct popular election. Since then the Constitution was amended to have members of the U.S. Senate popularly elected. Because of popular election of both houses, many consider Congress as a whole to be the people s branch of government. However, the people know very little about their branch. Moreover, they don t like their branch very much. If I were to ask you to list what you know about Congress, most of your lists would be very short. A majority of you probably know that Congress can override a presidential veto with a two-thirds vote. But most of you are probably unsure about whether that applies to both houses or whether that is two-thirds of total membership or just of those present and voting (it is both houses and total membership of each). About half of you probably know that the Senate has 100 members, two per state. Very few would probably know the House of Representatives has 435 members with full voting rights. Few could name the title of the top person in the House (the Speaker of the House), or how the Speaker is chosen (by vote of membership, so the top person in the majority party always wins). Few could give the name of the current Speaker (you should look this up on the Web). Only a few of you know that the leader of the Senate is called the Majority Leader, and you almost certainly do not know who this is (you should also look this person up). Very few know the name of their own United

3 States Representative (another thing to look up usually you can do it by postal zip code). You may know one of the two U.S. Senators from your state, and maybe even both if they have been in the Senate for a long time. But you are less likely to know the length of their terms of office (six years) or that they never run in the same year (staggered elections an exception might be a special election to fill out a term for one of the senators). Some of you probably confuse U.S. Representatives and Senators with the representatives and senators who represent you in your state legislature. As far as powers of Congress go, you probably know about the power to tax and make the budget. But you probably think that the president has the power to declare war. In fact it is Congress, as we mentioned in the chapter on the Constitution. The one thing that most of you would agree on is that you have little respect for Congress. It seems filled with people too busy fighting and criticizing each other and the president to get very much done, and almost nothing done in a timely way. Ok, I could go on, but you get the picture. No point in rubbing it in. The point of this chapter is to learn a few of the basic facts about Congress and how Congress is organized and operates. It is also to understand why the people do not have much respect for the branch that is supposed to be the people s branch. If you understand the internal conflicts the Founders built into Congress, you might have a little more respect for an institution that works pretty much as it was designed. As you will see, the people s branch was designed not to do much for the people, unless you are a person who does not like change. Congress has met those low expectations down through history. But in recent years Congress has done even less than what the Founders might have intended. It has moved from one often self-made crisis to the next and solved none of them in seemingly never-ending gridlock and debate. II. The Legislative Branch As Laid Out in the Constitution Let us start with the constitutional description of the legislative branch. It was the first branch the Founders designed. The key to its construction was the Great Compromise on representation that we discussed in the Constitution chapter. That compromise created what is called a bicameral, or two-house legislature (Article I, Section 1). The houses consist of a Senate based on equal representation of all states, no matter how large or how small, and a House of Representatives apportioned among the several States according to their respective Numbers (Article I, Section 2).

4 For Congress to pass any law, both houses have to pass the bill (Section 7). You can see right away that the Founders created conflict between these two houses because of what they represent. This is a first obstacle to making laws for the nation. The number of members in the House of Representatives was originally set in Section 2 at a fixed number for each state using a formula. Each state was given a representative for about every 30,000 people. The state with the largest number was Virginia at ten, followed by Massachusetts at eight. Each state was guaranteed at least one, and both Delaware and Rhode Island had only one. Georgia was the next smallest with three, and New Jersey had four. You can see why small states like Delaware would have been unhappy with a one house legislature with representation based on population. They would be out-voted by as much as ten to one by the largest states. Even today states with very small populations have only a single representative and, of course, two Senators. Delaware still has only one. Several states are very large in geography but small in population, Alaska for example. Having more senators than representatives in the House may seem odd to you, but that is the situation in a number of states (you might look them up). The Constitution requires an enumeration or census be done every ten years to determine if the number of representatives for each state needs to change. As population increased over history, the numbers increased to the point that the House of Representatives began to grow quite large. How big was too big for the House to effectively operate? Concerned about getting too big, Congress set the size at 435 in During a brief period in 1959, after Alaska and Hawaii were admitted as states and each given a single seat, the number went up to 437. But Congress reduced the number back to 435 after the 1960 census. In addition to the 435 regular voting members, the District of Columbia and four territories have delegates who have limited voting rights in the House of Representatives. Some of these entities have aspirations to become states, in particular Puerto Rico and the District of Columbia. More efforts have been aimed at statehood for D.C. As of this writing, those efforts for statehood status and full representation have failed. The proposal faces two obstacles. First, it would dilute the voting power of all states. Second, the district would almost certainly elect Democrats because of the high percentage of African Americans living there. So Republicans would almost certainly be opposed. As a result, residents of the District of Columbia continue to have the same complaint that the colonists had before the American Revolution they feel they are taxed with no representation, or at least no voting representation. The Constitution also sets out terms of office and qualifications for both the House (Section 2) and Senate (Section 3). Members of the House serve

5 two-year terms of office. Senators serve six-year terms, with a third of the Senate being re-elected every two years. These staggered elections mean that membership in the Senate cannot change as fast as membership in the House. As noted earlier, members of the House were to be elected by popular vote and Senators by state legislatures. Members of the House have to be 25 years old and Senators 30 years old. Both have to be citizens (seven years for the House and nine years for the Senate). And members of both Houses must live in the state from which they are selected. No requirement exists that House members live in the district which they represent. However, as a practical political matter, someone living outside a district would not be very likely to win an election. You should know that this dual structure was part of the Great Compromise, but it was also part of a design to limit the influence of popular opinion on policy making. When George Washington was asked about the structure and selection of the Senate, he drew an analogy to the purpose of having a saucer for a cup of hot beverage. Back in that day people would commonly pour hot coffee or tea into the saucer and then back into the cup in order to cool it. (You might note when you look at antique china that the shape of saucers has changed over the years.) That was precisely the purpose of the Senate according to Washington to cool the popular passions that in a single election could gain a majority in the House. The Founders did not want Congress to act very quickly. Sections 2 and 3 of Article I lay out a few basics for organization of the House and Senate very few! The Constitution says that the House shall chuse their Speaker and other Officers. That is it! What the powers of the Speaker are and who the other Officers are was left to the House to decide. The Senate is told only a little more. The Vice President of the United States shall be the President of the Senate, and as such the vice president (VP) can preside over the Senate. But in practice, the VP rarely presides. Most of the time presiding over the Senate is really not that important as a result of how the Senate operates. About the only time the VP attends is for formal ceremonies, like the opening of the Senate for a new session, or when an upcoming vote appears to be close. This is because the VP shall have no vote, unless they be equally divided. That means she or he can break a tie vote. So despite this impressive sounding title, the VP is not really the most important or powerful person in the Senate. The most important and powerful offices in the Senate are not even mentioned in the Constitution. They are the party leadership positions of majority and minority leaders more on them later in the chapter. The Constitution names one other officer by title, a President pro tempore, who presides when the VP is absent. The Constitution is silent on how the President pro tempore is to be chosen. It is also silent on how the other Officers will be chosen and what they will do. All this was left to the Senate to decide. By tradition, the Senate chooses the most senior member of the majority

6 party as the President pro tempore. But again, because presiding is usually not that important in the Senate, the President pro tempore usually lets some junior member perform these duties. In Section 5 of Article I, the Constitution gives powers to both houses to determine who was actually elected when election results are in dispute. Both houses require a majority of all members present to do business. (The requirement for a certain number of members to be present is called a quorum. All deliberative bodies that have by-laws or a constitution have some kind of quorum rule.) In practice both houses have found ways to operate with many fewer present most of the time. Members can make a request to check on whether a quorum is present. This takes time and is used as a delaying tactic. This section of the Constitution covers a few other things about operation. Perhaps most important, it says that each House may determine the Rules of its Proceedings, which allows each body to make and change their rules of operation. In addition, each house can punish members and expel them with a two-thirds vote (20 members have been expelled over the history of Congress, most having been members from southern states who participated in the rebellion), must keep written records of their proceedings, and written records of votes if requested by a fifth of the members present (roll call votes). Section 6 mandates that members of Congress shall receive a Compensation for the Services that is set by law. You will remember that the Twenty-Seventh Amendment does not allow Congress to make a pay increase effective until after an election takes place. In addition, this section protects member from arrests on their way to or during a session, except for major crimes, and it prohibits them from holding other government jobs while they are members of Congress. Section 7 lays out the general process for passing legislation. Following the British tradition that all revenue or tax bills begin in the lower House of Parliament, the Constitution requires that such bills first pass the House of Representatives before going to the Senate. It then lays out the process for presidential veto and mechanism for override, a two-thirds vote in both houses. Of particular interest on the veto is the question of whether a president can veto parts of a bill. The ability to veto parts of a bill is called the line item veto. The Supreme Court has consistently ruled that the president must sign or veto an entire bill, that the president does not have the power of the line item veto. During the Clinton presidency, Congress tried to give the president the line item veto by simply passing a law. The Supreme Court ruled the line item veto law unconstitutional. They reasoned that a simple law could not change the Constitution. Rather, only an amendment could give the president this power. As of this writing, such an amendment has not passed.

7 The other interesting item in Section 7 is the provision that allows for what is called the pocket veto. The key phrase starts by saying that a bill becomes law automatically after ten days (not counting Sundays) if the president does nothing and Congress is still in session. Why would a president allow this to happen? It is a way of saying that she or he does not approve of the bill, but does not want to lose a veto fight, so the nation should blame Congress for whatever harm comes from the bill. That key phrase ends by saying that if Congress goes out of session before ten days passes, in which Case it (the bill) shall not be a Law. The bill is then dead the pocket veto. The pocket veto was a pretty wise provision on the part of the Founders. They realized that at the end of any work session, people get tired and sloppy and are likely to make mistakes. Think about the things you write on an essay test when the professor says you have two minutes left! This gives the president a little extra power to erase those kinds of mistakes. Wise or not, the pocket veto provision leaves many details out that have led to Supreme Court cases. Does adjournment after the first session or adjournment after both sessions in the two year any Congress meets count as going out of session? The Supreme Court said either counts. Does the president have to notify Congress that a pocket veto is taking place? The Court has been less clear on this. And presidents have been reluctant to force a case on this question for fear that they might lose. As of this writing, President George W. Bush was the last president to use a pocket veto. This is one more place where the lack of detail has set the stage for conflicts among the branches. Sections 8 and 9 are about powers that Congress has and limits on those powers. The Bill of Rights added further restrictions to the powers of Congress. Let us first consider powers in Section 8. This may be the most detailed part of the Constitution. The powers that are specifically listed, called the enumerated powers, are far too many to discuss one by one. They are listed as worded in the Constitution in the table below. Enumerated Powers in Article I, Section 8 (bullets added) The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; To borrow Money on the credit of the United States; To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; To establish a uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States; To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures; To provide for the Punishment of counterfeiting the Securities and current Coin of the United States; To establish Post Offices and Post Roads;

8 To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; To constitute Tribunals inferior to the supreme Court; To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations; To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-yards, and other needful Buildings; But even with all this detail, some things still have to be interpreted. For example, the power over interstate commerce ( To regulate commerce among the several States ) depends on exactly what is included under interstate commerce. That is a question that the courts have never fully settled. If interstate commerce is interpreted broadly, then Congress can do a lot of things. If narrowly interpreted, then the powers of Congress to regulate commerce are far more limited. The famous Civil Rights Act of 1964, which ended segregation in public facilities like trains, buses, hotels and restaurants, rested on the power of Congress to regulate interstate commerce and a broad interpretation of interstate commerce. Even restaurants and other establishments that were located in a single state fell under the law. The courts reasoned that patrons were likely to be engaged in interstate commerce, so this gave Congress the power to regulate access. The last paragraph of Section 8 (not shown in the table above) is particularly important. It contains the phrase: To 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. This is called the necessary and proper clause, and by Supreme Court interpretation provides Congress with what are called elastic powers. That is, Congress can have the power to do a lot of other things if these other

9 things are based on the idea that they help Congress perform things already listed. So if Congress thinks it needs a national banking system to help it Coin money (and) regulate the Value thereof as listed in Section 8, it can do so. That was the essence of the famous case McCulloch v. Maryland (1819). Finally, Section 9 places a list of limits on what Congress can do. Some of these limits fall under civil liberties, which we will discuss in a later chapter. Some we have already mentioned in the Constitution chapter, like the prohibition on limiting the importation of enslaved people until 1808, or the prohibition on exports from states, a guarantee that Southern states wanted. In terms of congressional procedures, Section 9 includes the requirement that Congress pass a separate appropriation bill before spending any monies. In practice this means that Congress must pass two separate laws to actually spend money on a new program: an authorization bill that creates the program and then an appropriations bill, which actually provides the precise amount of money to be spent. This two-step process doubles the difficulty of creating any new policy that involves spending money. Another obstacle to any quick congressional action! III. The Evolution of Congress: From Part-time Citizen Legislators to Full-time Career Professionals The first Congress met from early April 1789 and adjourned in late September. For many decades thereafter, sessions typically lasted about six months. In some years sessions lasted a few months longer. Most members could spend about half the year attending to private businesses and careers at home. They were part-time legislators who could not survive on their congressional pay alone. The most dramatic change came in World War II in the early 1940s, when sessions suddenly stretched the entire year. From that point on, except for a few years in the relatively tranquil 1950s, Congress met almost year round, starting their sessions in January and ending them late in the year, usually November or even December. What had happened? One somewhat humorous explanation that may bear at least a grain of truth is the invention and widespread use of air conditioning in the 1950s. Washington is built on what was once a swamp. It is almost unbearably hot in the summers. After a few weeks of summer heat and humidity, most members may have been ready to head out of town anywhere that was cooler! More seriously, the national government had become much more involved in the national economy, in providing services, and in world affairs. That growth began with programs to combat the Great Depression, extended to defense during WWII and then the Cold War, and later expanded again with the civil

10 rights revolution, the social programs, environmental programs, and other programs, such as space exploration, that really accelerated in the 1960s. Congress had more complex budgets to consider, more programs to oversee, and felt pressure to respond to many more interest groups trying to influence policy. A Joint Congressional committee gets organized to investigate the operation of the Tennessee Valley Authority in The many programs to combat the Great Depression required Congress spend more time in oversight activities (Library of Congress Collection: no known restrictions on publication ). As Congress became more involved in nearly all aspects of American life, members of Congress were drawn toward longer careers. For about the first thirty years after the Constitution went into effect, members shared a strongly held value of limited tenure (time in office), which encouraged members of Congress to limit the number of terms they served. Few members served for more than a few terms in office. The ideal was to limit the corrupting influence of power by imposing self-limits on service. With the election of Andrew Jackson in 1828, a new set of values took hold that also reinforced short congressional careers, the values of the spoils system. Office holding, whether in Congress or in appointed jobs, was seen as a reward for service to the party, and those rewards were passed around. After the Civil War, the public began to see the spoils system as corrupt, and members of Congress began to seek additional terms. By the early 1900s, many members were making congressional service a career. Between 1860 and 1960 the average time in office doubled. Today most members, once in office, seek to make congressional service a career.

11 A Thomas Nast Cartoon that makes fun of Spoils System created by President Andrew Jackson. Harper's Weekly, 1877 April 28, p (public domain) Salaries paid to and set by members of Congress reflect these changes. In the 1790s members were paid on a per diem basis for the number of days they were in session at a rate of $6-7 per day. This was not lucrative enough to attract people wanting a career. In the 1850s pay increased to $3,000, and then to $7,500 in 1875, enough to support a family. By the Great Depression in the 1930s, pay had increased to about $10,000. After WWII it rose to $12,500, and by the mid 1960s it had more than doubled up to $30,000. Rapid increases continued. Salaries again doubled by 1979, reaching nearly $60,000, and doubled again by the early 1990s at about $125,000. As of 2006 salaries were more than $165,000. The last raise was to $174,000 in 2009 (for both houses and for delegates), and it has been frozen since then. The Speaker and other leaders in both houses make somewhat more. In addition, members have a generous pension program that can pay up to 80% of their salary, depending on years of service. After retirement, many former members of Congress stay in Washington and use their knowledge and contacts to pursue a second career as lobbyists or consultants. They generally make far more money in this second career than they did as legislators. Between 1998 and 2012 OpenSecrets.org found that 318 former members of congress found work as lobbyists. Some work for organizations that do not consider themselves lobbying groups, but do try to influence public policy in very distinct ways. For example, former S.C. Senator Jim DeMint, who in January 2013 resigned from the Senate in the middle of his second term, became head of the Heritage Foundation, a major conservative think tank that promotes conservative positions. His salary increased from

12 $174,000 to what was likely to be several million a year. Career patterns that seem to exploit public service for private riches does little to enhance the public s view of Congress, our next topic of conversation. IV. Paradoxical Views of Congress Today: Throw the Bums Out and High Reelection Rates A. Job Approval Ratings of Congress How Low Can They Go? American citizens have a very dim view of Congress and its members, at least the members who are not from their own state or district. The standard question pollsters ask is whether or not you approve or disapprove of the job Congress is doing. The percentage who approve depends on current events, but in recent decades approval has almost always been below 30%. Sometimes it drops down into the teens or even to single digits, as it has in recent years! Citizens look at congressional pay, at the money candidates spend on campaigns and the inability to reform the campaign finance system, at all the negative ads that run against candidates, at the difficulty Congress has in passing legislation or even budgets, at members involved in financial or sexual scandals, and draw a very negative conclusion. Little of this is likely to change in the future. At the same time citizens re-elect the same people over and over. Reelection rates for Congress are over 90%. The re-election rates are generally higher in the House (often in the high 90 s) than in the Senate (usually in the 80 s). In 2014, despite great public discontent with Congress, 95% of all members of the House and 82% of all members of the Senate who ran for reelection won! So we have another paradox. Voters hate Congress, yet voters keep reelecting the same people. How can that be? The solutions to this riddle are several. Citizens usually feel differently about their own members than they do about the institution as a whole. Those who already hold office (called incumbents ) have many advantages over challengers. Voters expect different things from their own members than they do from the institution as a whole. All this is the next part of our story. B. Who Gets Elected and Why They Usually Stay a Long Time People run for Congress for two major reasons, policy concerns and/or an ambition to serve. We live in a time in which elections are candidate centered rather than party centered. That is, most candidates are self-motivated and selfrecruited, though often with the encouragement of influential friends. Many decades ago party leaders recruited nearly all candidates. Today candidates build a personal campaign organization to win the party nomination in a primary.

13 Then they rely heavily on their own organization to win the general election. Party organization only plays a secondary role in helping win elections. People who can successfully do all this are highly likely to be strong willed, creative, energetic and have excellent interpersonal and organizational skills. They are willing and able to ask lots of strangers for large amounts of money to finance their campaigns. They often have enough money to at least start the campaign on their own or have friends to help get it off the ground. They have qualities that voters are likely to admire. So what kinds of people are we talking about? This might be a job description: Seeking relatively successful and ambitious people with connections to those with money and who can raise large amounts of money or have a lot of money of their own, whose appearances reflect the appearance of most people in our state (or district), who enjoy public speaking, publicity, travel, long meetings and attending social gatherings, who can digest large amounts of material quickly and make quick decisions, who can direct a large staff, and who like working long hours away from their families. In most places this means that we elect successful (businessmen, lawyers, and other well paid professionals or who are financially independent) white males, though this is slowly changing. You might search for the current demographic breakdown of members of the House and Senate. Women and minorities are all underrepresented relative to their proportion of the total population. Once elected, most members stay in office. Incumbents have several natural and self-created advantages that reduce the chances of challengers to well under 10%. Usually some kind of scandal is required to defeat an incumbent, but even scandal may not be enough. Voters love some of their members of Congress so much that they have sometimes re-elected them while under indictment and even while in jail! So what are these incumbent advantages? The most obvious advantage is that incumbent members of Congress already have the skills to win the office. These skills were required to win it in the first place. Because they are winners and because people think they are likely to win, they raise money far more easily. Think about this from the contributor s point of view. If you want access to a member of Congress, why would you give money to a candidate who is almost surely going to lose? Incumbents typically raise more than ten times as much money as challengers. So incumbents have a skills and money advantage. Incumbents are also much more well-known. People will usually choose the name they recognize over one they do not recognize. Incumbents have staff

14 both in Washington and in their districts or states that spends much time getting publicity for their boss. Publicity tools include press releases in audio and video form as well as written announcements of grants and projects that help the district, and congratulatory letters and notes to constituents. College interns placed in local district offices often have the task of clipping and saving any article in the local paper that mentions the name of the member of Congress. A great deal of this publicity is free to the member of Congress because of the facilities that Congress provides its members: radio and tv studios, web site hosting, and the franking privilege along with highly efficient mail processing facilities. The franking privilege allows members to communicate with their constituents about their activities by sending out mail for free, using the member s signature in place of a stamp. Members are not supposed to send out campaign materials, but constituent polls and reports on activities and issues are far more effective in polishing public images than blatantly asking for votes. An 1860 political cartoon showing a member of Congress who abused the franking privilege to mail his clothes back home where he could get then laundered more cheaply (Library of Congress: no known restrictions on this publication ) Getting grants and projects for the state or district, called pork barrel legislation, provide evidence that the member of Congress is looking out for her or his state/district. Any road or dam or post office or other public building brings jobs and money home. The amount of money generated is frequently a claim that incumbents include in campaign material.

15 The J. Strom Thurmond Dam on Lake Thurmond (public domain). Strom, the longest serving senator in the history of the nation, liked to have so many things named for him that South Carolina has been jokingly referred to as Stromthurmia. Another highly effective tool for re-election is casework. Casework involves helping constituents with problems they are having with bureaucracy. Did your grandmother not get her Social Security check deposited like it was supposed to be? Does your child want a nomination to one of the service academies? Did the military recruiter promise your daughter a tour of duty in Japan and instead she got Alaska? Do you have a problem and not know which government agency to contact? All of these are questions and problems that your member of Congress, or to be more precise, the staff of your member, will happily help you with! Why? Because when election time comes, you are far more likely to remember your grandma getting her Social Security check than some vote on an obscure bill. One senior member of Congress claimed that rural mail delivery was the key to his many re-elections. He said that constituents once had to drive to the post office to get their mail, but now every time they pulled mail out of their home mailbox, they thought of him. We have already noted that the Constitution requires that every ten years congressional districts must be redrawn, or reapportioned, to reflect changes in population. Remember that this only applies to the House of Representatives because the state lines that define Senate districts do not change. House district lines can be drawn to help a political party or candidate. Political scientists call this safe by design or political gerrymandering. The term is a play on the name of Massachusetts Governor Elbridge Gerry. In 1812 he signed a bill creating an electoral district that to political critics looked like a salamander. It became famous in a political cartoon that transformed the district into a dragon. Since then, drawing strange shaped districts for political advantage has been called gerrymandering.

16 Political cartoon of district drawn to help the Democratic-Republican Party defeat the Federalist Party in Massachusetts, originally published in the Boston Centinel, 1812 (public domain) State legislatures have the formal power to redesign district lines, but members of Congress and their staffs exert a lot of influence in the process. The process almost always involves strong partisan fights as each party seeks to draw district lines that maximize the number of districts they can win. The general strategy in political gerrymandering is to create districts that have just enough votes for your party to win. Extra votes beyond this are wasted, so you should place them in other districts to help your party win as many districts as possible. What you do to the other party is split their supporters among several districts so that they do not have enough votes in any district to win. This is called splitting or cracking. Alternatively, you can pack opposing party supporters all in one or two districts so that they waste a lot of votes in these districts that might otherwise help them win in other districts. This is called packing. I remember a former student who worked as a congressional aide telling me that he had persuaded the state legislature to move out of the district a few boxes (precincts) that tended to vote against his member.

17 After the 2010 census, S.C. received an additional congressional district. Lines were drawn to pack as many African-Americans as possible into the 6 th district so that Republicans would easily be able to win the seats in the other six districts. The lines of the 6 th stretch out to grab African-Americans in two urban areas, Columbia and Charleston. Thus the state s congressional delegation after the 2012 election was composed of one Democrat and six Republicans. (Map from S.C. Green Party). The end result of political gerrymandering is a lot of very odd shaped districts that are safe for one party or the other. The percentage of competitive districts, where either party has a chance of winning, is declining. With the aid of computers, lines can be drawn so precisely that parties can win most seats even with a minority of popular votes. For example, in the 2012 congressional elections, Democratic candidates won a half million more votes nationally than Republican candidates, yet Republicans won a majority of the seats. While a lot of factors played a role, the gerrymandering of district lines was very significant. State legislatures were mostly controlled by Republicans after the 2010 census, and they drew congressional district lines to help their own party members. Certainly Democrats did the same in states they controlled, but they just did not control as many state legislatures. Only about 68 of the 435 seats for the House were competitive in 2012 general election. In many congressional districts, one party or the other did not even contest the election. Levels of competition were so low that most incumbents worried more about winning their party primary than worried about the general election. This has policy implications. If all you worry about is winning the support of strong partisans who dominate the vote in primary elections, you have little incentive to compromise with members of the other party once you take office. This is a recipe for congressional gridlock.

18 Table 1. Where have all the moderates gone? Fewer competitive districts and ideological polarization produce fewer moderates Competition and Moderation in US House Districts Competitive Districts Year (N=83) (N=58) Moderate 35% 16% (29) (9) Not 65% 84% Moderate (54) (49) Noncompetitive Districts (N=352) (N=377) 17% 8% (61) (32) 83% 92% (291) (345) Totals % (90) 79% (345) 9% (41) 91% (394) Looking across the Year row, we see that the number of districts that were electorally competitive (meaning that the winner and loser were in districts rather evenly divided between Democratic and Republican voters) dropped between 1992 and 2010 (from 83 to 58), and the number of noncompetitive districts increased (from 352 to 377). Political gerrymandering had a significant impact here, drawing district lines that made for less competitive elections. Now look at the two 1992 columns in the Moderate row (we can ignore the Not Moderate row because it is the mirror reflection of the Moderate row). In the 1992 competitive column, 35% had moderate representatives (meaning that their interest group ratings were near the moderate middle), but in the 1992 noncompetitive column, only 17% were moderate. We see a similar pattern in the two 2010 columns among moderates. Competitive districts produce higher percentages of moderates than noncompetitive districts (16% and 8% respectively). So clearly moderates are more likely to come from competitive districts regardless of the year. But now look at the shifts between 1992 and 2010 in the moderate row. The percentage of moderates in both competitive districts and noncompetitive districts dropped over time (from 35% to 16% in competitive districts and 17% to 8% in noncompetitive districts). Clearly something else has changed other than just having fewer competitive districts. This shift is probably a result of increasing ideological polarization across the nation since So the last two columns show the net result. The percentage of moderates overall dropped from 21% in 1992 to 9% in 2010, the result of fewer competitive districts and increasing ideological extremism. (These data were compiled by John Chambers, USC Aiken graduate and PhD candidate at Princeton University.) You might think that gerrymandering would be unconstitutional. However, the courts have allowed gerrymandering for political purposes, but not racial purposes that would help or prevent the election of minorities. Of course, because people often vote along racial lines, the difference is not always obvious. Finally, political scientist Richard Fenno has identified something he calls home style as helping incumbents get re-elected. Home style is the comfortable way in which members of Congress usually interact with their constituents. It includes dress, language, tone of voice, mannerisms, shared experiences, all the things that make constituents feel that the member is still one of them, cares about them, and has not lost touch. It gives the member credibility and a sense of authenticity. As long as members are able to maintain home style, they are pretty immune to the charge that they have become part of the mess in Washington, which is about the worst image an incumbent can have in trying to get re-elected.

19 Florida s Lawton Chiles developed a strong home style in his initial campaign for the U.S. Senate in 1970, walking the state and earning the nickname Walkin Lawton. (Photo by Mark T. Foley, State Archives of Florida, Florida Memory, public domain). Georgia Representative John Lewis serving constituents at a district event in 2011 (photo from John Lewis Photo Gallery on his Congressional Page: ). Incumbents usually employ a campaign theme that builds on their home style and voters dislike of Congress. The theme runs something like this. Reelect me so that I can continue to fight for you and your interests in that corrupt institution called Congress. The task is nearly impossible, but unlike most members, I have managed to keep up the good fight without being tainted by Washington politics. In other words, the best way to run for Congress is to run against Congress another paradox! V. The Conflicting Functions of Congress

20 If you remember, at the beginning of the chapter we spoke of Congress being the people s branch, but at the same time people have little respect for this branch of government. We added to this dilemma the fact that the people, despite their expressed disapproval of Congress, keep sending the same people back to Congress. We partially solved the puzzle in noting incumbent advantages and how they run for office by running against Congress. Of course, running against Congress increases popular contempt for Congress. The rest of the explanation for popular contempt of Congress lies in the conflicts among the major functions that Congress performs. Now we turn to those functions and how they conflict with each other. A. Representation Note that both representatives and senators have dual titles. They are United States Representatives or United States Senators from the state of. So each member represents two different entities, their state or district and the nation as a whole. Quite often what is good for their state or district may not be good for the nation as a whole. For example, the spending projects that bring jobs and money home (pork barrel bills) drive up government spending and add to deficit spending (that is, spending more money than is available from tax revenues in a year). When members have to choose, they usually choose what is good for their districts or states, because these contain the people who re-elect them, not the nation as a whole. So their constituent s interests are also their own self-interests. To put it cynically, wasteful spending is what other members of Congress do, not what they themselves do for their own constituents. Not only do members of Congress represent individual citizen concerns, they also represent the interest groups that are in their districts or states. They also represent interests that help finance their campaigns and provide them with important information that is necessary for lawmaking. For example, if you sit on the Subcommittee on Livestock, Dairy, and Poultry of the House Agriculture Committee, you get a lot of information from related agribusiness interests that help you stay informed. And you probably also get a lot of campaign contributions as well. The money certainly does not guarantee that you will vote for what the agribusiness interest groups want, but it helps them get your attention. If livestock is a big part of your state, then you will certainly make sure that the industry gets treated fairly. In short, almost every member works hard to represent a wide range of interests, especially those tied to re-election! Members of Congress perform the role of representation admirably. Earlier, when we listed reasons for high re-election rates, we included looking out for ones own state or district in the list. When voters think about how their member of Congress performs, they are usually thinking about the function of representation he or she is fighting for me, representing my interests or concerns. Look for this theme in the next mailing you get from your U.S. Representative or Senator.

21 B. Policy-making On the other hand, when citizens are thinking about Congress as a whole, they are usually thinking about a second major function, policy-making. Policymaking is much more difficult than representation, in large part because members of Congress do such a good job representing interests. The more members represent the various concerns of interest groups, the less they are able to sacrifice what interest groups want. Some sacrifice is necessary for the compromises that are essential for making policy. Examples are endless. Should the Army Corps of Engineers keep water levels high in lakes to satisfy recreational interests? Or should they let levels fall to satisfy the farmers who need water for irrigation or power companies that need water to flow through turbines? Should drug companies be granted long-term patents that allow them to make profits necessary for research and development of new drugs? Or should patents be short-lived so that consumers can quickly buy cheaper generic drugs produced by other companies when patents run out? Should the auto industry be forced to raise mileage standards? Or should they produce alternative fuel vehicles at the expense of oil company profits? Should we allow timber companies to cut forests on national lands to help construction companies build cheaper homes for Americans? Or should we protect trees and the animals that live in forests, as environmental groups want? Should the national government spend money to improve K-12 schools? Should government help college students pay tuition? Or should we have lower taxes for all citizens? Should we fund research at a local university or keep a military base open or save money to lower spending? In almost any government action you can think of, someone benefits and someone pays. Interest groups get involved. If everyone gets represented and no one wants to sacrifice, then every policy proposal becomes an almost endless political fight. Almost nothing happens fast, if it happens at all. So we love Congress for representing us, but hate it for representing us all so well that Congress cannot come to more agreements. C. Other Related Functions: Oversight and Deliberation Congress has other functions that are related to representation and policymaking. Oversight, or what political scientists call the watchdog function, refers to making sure that the executive and the bureaucracy are doing what Congress intended, to make sure that bureaucracy is carrying out laws and spending money properly. Congress holds hearings to investigate almost every aspect of governmental behavior, from how well school aid is working to the performance of the military in conflicts abroad. Those hearings also help members learn things constituents are unhappy about more representation. Findings from hearings and investigations play an important role in writing new laws and amending

22 existing laws. But these hearings and investigations also take a lot of time and slow down policy-making. Senator Sam Ervin of N.C. Chairing the Watergate Committee in 1973, investigating the Nixon Reelection Committee s break-in of Democratic Headquarters at the Watergate complex, one of the most famous investigations in American history (public domain). Finally, the Founders wanted Congress to carefully deliberate so that they consider nearly all possible options before acting to make policy. The Founders wanted a lot of thought to go into lawmaking. As we shall see in the process of how a bill becomes law, the complex process provides many opportunities for members to carefully consider many different possibilities. In fact, so much deliberation takes place that members can be overwhelmed with information and options. This adds to the delay in policy-making and to the dissatisfaction that citizens have about Congress. In short, the functions of representation, oversight, and deliberation all have some conflict with the function of policy-making. So the extent to which we are happy with a lot of representation, oversight, and/or deliberation means that we will be unhappy with how well Congress performs in policy-making. VI. The Organization of Congress As we saw in looking at how the Constitution laid out Congress, the framers provided only a rough framework: two houses, a Speaker for the House of Representatives, a presiding officer for the Senate, and other officers to be determined by the bodies themselves. Down through the years each house has created its own organizations and rules, rich in complexity and tradition. While the organization changes every two years after elections, especially after a change in party leadership, the outlines have remained fairly constant. We will deal with the commonalities between the two houses first. Then we will move to differences between the House and Senate. Consider what would happen if all members simply met as a body to discuss what they should do about the almost countless number of issues that exist. Even with someone to preside, little more than a lot of talk would take

23 place. The issues are so many and so complex that no one can understand them all. So Congress does the logical thing. Congress divides its work up by subject matter and creates committees for each area. Committee and subcommittees, which specialize even more, are where Congress does most of its work. Different members specialize in different subject areas and develop some level of expertise. Then the committees report on their work back to the entire body. Congress needs rules to place members on committees, to choose leaders for those committees, and select other officers that the Constitution allows Congress to create. Here is where political party comes into play. Almost everything in Congress is organized along party lines. With the exception of the Vice President in the Senate, all other leaders, including the Speaker in the House, are chosen along party lines. The majority party determines the organization in both houses. It chooses the Speaker in the House and all the rest of the leadership. It determines the structure, size, and jurisdiction of committees and how members get on committees, as well as the number of seats the minority party gets on each committee. The majority party sets the rules for determining the leader, or chair, of each committee and subcommittee. While this may sound like the majority can do whatever it wants, limits do exist. Rarely will the majority party completely overrun the minority party. This is because everyone knows that after another election they could become the minority what comes around goes around! Internal operating rules developed in each house over centuries make some guarantees to all members and are more difficult to change. Finally, because members must be concerned about their own districts and states, and because most Americans are not terribly fond of political parties, the majority party must be careful not to completely ignore the minority. Two members from different parties who represent oil producing districts or states may have more in common with each other than with someone in their own party who comes from a corn producing district or state. Members with similar interests form groups that usually go by the name Congressional Caucus, with the blank filled in with the interest they all have in common. For example, the Boating Caucus, the Vision Caucus, the Internet Caucus, the Bike Caucus, Black Caucus, and many more (over 200 in 2007). Each party has its own party caucus, but these subject caucuses cross party lines.

24 Congressional Hispanic Caucus meeting with President Obama in 2009 (public domain) In both houses seniority plays a major role. Seniority is measured in two different ways, the number of years served in the body congressional seniority and the number of years on a particular committee committee seniority. Seniority in each body plays a role in getting on key committees, though individual negotiations with party leadership and other party members also influence committee placement. The balance among these factors has varied down through history and also varies between the two parties. Once on a committee, committee seniority improves a member s chance of becoming committee chair, though again party leadership and party rules play a role. VII. Differences between the House and the Senate The greatest differences between the House and Senate result from their size and frequency of election. The House is a relatively large body with 435 members, each of whom is elected every two years. The Senate is relatively small with 100 members with six year staggered terms, so that a third are elected every two years. Because the House of Representatives is so large, it must have stronger leadership and more detailed rules to operate with any efficiency. The power to preside and recognize someone to speak is very important. The Speaker of the House, who is also the leader of the majority party, holds that power. Unlike the Senate, in which every Senator has the right to speak, the House places some time and content limits on members when they wish to speak on the floor. If the House did not have limits, nothing would get done with so many members. (Each of the 435 members speaking for 10 minutes would take 72.5 hours!) While the powers of the Speaker have shifted back and forth down through history, the Speaker has always had more formal powers than the top leader in the Senate, called the Senate Majority Leader.

25 The Senate Majority Leader does not preside and works in more informal ways, usually negotiating procedures on actions with the Senate Minority Leader in agreements called unanimous consent agreements. These agreements are necessary because of the right that each senator has to speak. Unless minority members agree to give up that right, they can talk a bill to death a practice called filibuster. We will have more to say on that later in discussing how a bill becomes law. While the Senate Majority Leader is the most important member in the Senate, the House also has a Majority Leader. But in the House, the Majority Leader is the number two person. Below this both houses have similar leadership structures. Each house has a Minority Leader, who leads the party that does not have the majority. Below this level are the Party Whips, a term borrowed from the British Parliament. The whips job is to create a bridge of communication between leadership and the membership. While both houses have committee systems with roughly the same number of committees, the House has more members to spread around. So House members can more easily specialize in a narrower subject area than members of the Senate. The longer term for Senators creates differences in behavior. Political scientists frequently say that House members are constantly running for reelection. As soon as one election is over, the next cycle starts for members of the House. The six year term gives Senators some breathing room. If you remember, the Founders wanted the Senate to act as a brake on quick House action driven by public opinion. Studies by political scientists consistently show that House members stay closer to opinion in their districts than Senators do to opinion in their states. However, in the last two years of Senators terms they move closer to public opinion. House members respond more quickly to shifts in public opinion, and Senators feel freer to vote against opinion. This is just what the Founders wanted Senators to do. But Senators act like House members when an election is near. VIII. The Obstacle Course for Legislation The process by which a bill becomes law is torturous. While the House and Senate follow the same general outline, the details are vastly different because each house has developed its own set of operating procedures over history (Article I, Section 3. Each House may determine the Rules of its Proceedings. ). Most of these details are subjects for an advanced course on Congress. Therefore we will examine only the basics, things that any informed citizen should know.

26 In a basic course on American government such as this one, the important thing to understand is the implications and significance of having such a difficult process. We will get to that after we discuss the process. For now, I will just say that if we had a theme song for this section, it would be the old Jerry Butler soul hit, Only the Strong Survive. Many bills start the process, more than 10,000 in recent years in the House and Senate combined. But only a few survive to become law. Because of partisan polarization and incumbents who do not face serious opposition from the other party so have no reason to compromise, productivity (measured by the percentage of bills introduced that pass) has dropped dramatically in recent years from about 10% to well under 5% today. The 110 th Congress (2007-8) passed 460 bills. The 111th ( ) passed 385 bills. The 112 th Congress ( ), the least productive in history, passed only 284 bills. A slight rebound in the 113 th ( ) increased the total to 296. By historical comparison, the Congress of that President Truman labeled the donothing Congress passed 960 bills. A. Introduction of a Bill Only members of the House and Senate may introduce legislation, the first formal step that starts a bill off in the process. While the president may recommend legislation, he or she cannot actually introduce it. Members of the president s party are usually happy to do that for the president. Bills may be introduced into either house or even both houses at once. The exception to this is tax and revenue raising measures, which as noted earlier in this chapter, must get through the House before going to the Senate. Where do ideas for legislation originate? Much important legislation comes from the president, who plays many roles, including that of legislative leader. That role has a Constitutional basis in Article II, Section 3: He (the president) shall from time to time give the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient. Early in each new calendar year the president delivers the State of the Union address, in which the president presents her or his views on the condition of the nation and legislative proposals to improve the nation. Major programs like Social Security, Medicaid, Medicare, Unemployment Compensation, and the 2010 Affordable Health Care Act all started with presidential proposals. Budget proposals always start with presidential proposals, though Congress always makes many changes before a budget gets passed. In addition, members of Congress introduce thousands of bills themselves. Ideas for these bills come from a variety of sources. Constituents

27 may have revealed problems they are having with government in their requests for help from congressional offices. Interest groups maintain contact with supporters in Congress and ask members to introduce bills. Legislative hearings and investigations may uncover things that need changing. Finally, members have their own ideas. These ideas may have been campaign promises or policy goals that motivated the member to run for election in the first place. B. Committee and Subcommittees Following introduction, the next step in both the House and Senate is assigning the bill to a committee. House and Senate leadership have a great deal of influence on this decision. However, which committee the bill goes to is usually a rather straight forward matter that depends on the subject of the bill. But committee assignment can be controversial. Sometimes the committee choice is part of legislative strategy, because the membership of some committees may be more favorable to a bill than other committees. For example, civil rights supporters wrote the 1964 Civil Rights Bill so that it was based on interstate commerce. That meant it would go to the committee with jurisdiction over interstate commerce rather than to the Judiciary Committee, which normally would get such bills. Why? The Judiciary Committee was dominated by white southern conservatives who would surely kill the bill, just as they had killed all other civil rights bills. Before we discuss what happens in committees and subcommittees, I should add a few general comments on committees in the House and Senate. Not all committees are equal. Some have more prestige and importance than others. Of course members want to be on the better committees. That gives them more power and prestige. That increases their odds for re-election. They can do more for their districts when they are on important committees. The other factor is the nature of each particular district. Someone from rural South Carolina might not want to be on the House Foreign Affairs Committee, for example. They would probably prefer the Agriculture Committee. If a lot of veterans live in the state or district, then the Veterans Affairs Committee (which exists in both the House and Senate) might be a good choice. As noted earlier, building seniority by winning re-elections helps one get on important committees. Once on a good committee, the usual strategy is to stay there and build committee seniority and perhaps become chair of that committee or chair of a key subcommittee below that committee. So the general strategy for legislative success is to get on as good a committee as soon as possible, and then stay there and build seniority and power until a better opportunity comes along. You can easily find a current listing of congressional committees on the web. Here is a listing of House and Senate committees that is updated as changes take place. See for the most

28 current listing of both committees and subcommittees. The subcommittees listed below are current as of Senate Committees Aging Agriculture, Nutrition, and Forestry Appropriations Armed Services Banking, Housing, and Urban Affairs Budget Commerce, Science, and Transportation Energy and Natural Resources Environment and Public Works Ethics Finance Foreign Relations Health, Education, Labor, and Pensions Homeland Security and Governmental Affairs Indian Affairs Intelligence Judiciary Rules and Administration Small Business and Entrepreneurship United States Senate Caucus on International Narcotics Control Veterans' Affairs Joint Committees Commission on Security and Cooperation in Europe Joint Committee on Printing Joint Committee on Taxation Joint Committee on the Library Joint Economic Committee House Committees Agriculture Appropriations Armed Services Budget Education and the Workforce Energy and Commerce Ethics Events Surrounding the 2012 Terrorist Attack in Benghazi Financial Services

29 Foreign Affairs Homeland Security House Administration Intelligence Judiciary Natural Resources Oversight and Government Reform Rules Science, Space, and Technology Small Business Transportation and Infrastructure Veterans' Affairs Ways and Means As we noted earlier, House members usually sit on two committees and Senators usually sit on about four committees. So Senators are spread more thinly. While a few committee names change after elections or after changes in party control power, most of the really important committees stay the same. On the House side, the most important committees are Rules, Ways and Means, Budget, and Appropriations. Later we will look at the Rules Committee in detail because it plays a key role in how nearly all bills get through the House. The Ways and Means Committee deals with taxes and revenue bills. It always gets first crack at tax legislation because of the Constitutional requirement that tax measures start in the House. Taxes are always important. One of the legendary chairs of Ways and Means, Wilbur Mills of Arkansas, decided he would run for president in His friends tried to convince him that he should not bother, asking why he would want to be president when he already ran the country through the power he had as Chair of Ways and Means. You might look up Wilbur Mills on the internet to find out what eventually happened to this very colorful and sometimes outrageous powerful member of Congress it involved a stripper! Budget committees and Appropriations committees exist in both houses and are important in both. The Budget Committee is relatively new. It was created by the Budget and Impoundment Control Act of 1974 in an effort by Congress to reassert itself in what is called fiscal policy. Fiscal policy refers to the impact of taxing and spending on the nation s economy. Congress felt it had lost power to the president in this area. So it created new committees in both the House and Senate to examine and control the overall size of the budget. Prior to this the size of the budget was whatever the total turned out to be after all the individual appropriations bills passed by the Appropriations Committees in the House and Senate. The Budget and Impoundment Control Act of 1974 also created a new office to give Congress economic advice, the Congressional Budget Office (called the CBO). Before this office was created, Congress had to depend on

30 advice from the White House economic advisors. Their advice that usually favored what the president wanted. The law also set up a new budget process that gave Congress more time to create and pass a budget each year (starting the new fiscal year on October 1 rather than July 1). It also placed limits on the practice of presidential impoundment (refusing to spend money appropriated by Congress). Extra time to pass a budget has not helped much. Congress rarely passed budgets on time even after this law was passed. And in recent years extreme partisan polarization has prevented Congress from passing almost any budgets at all. Congress typically ends up passing what are called continuing resolutions, which just keep the budget from the previous year in place at the same funding level. The creation of Budget Committees made the Appropriations Committees in both the House and Senate somewhat less powerful. But they are still important, because no matter how much money other committees authorize to be spent, no money can actually be spent until Appropriations passes a bill to allow the money to be spent. The difference today is that the total must come in under an amount initially set by the Budget Committee. On the Senate side, some of the most important committees are different than the important ones in the House. In addition to Budget and Appropriations Committees, the Judiciary and Foreign Relations Committees are quite important in the Senate. Though the House also has committees that deal with these matters, they are less important. This is because of the unique role the Constitution gives the Senate in these areas. In Article II, Section 2, the Constitution gives the president power to make treaties with the Advice and Consent of the Senate provided two-thirds of the Senators present concur. This means that the Senate must ratify any treaty that the president negotiates. The House only plays a role if the treaty requires the expenditure of money. The same section of the Constitution also gives the Senate confirmation power over Supreme Court Justices and other judges and officers, but the twothirds vote does not apply to confirmations. While the number of votes to confirm may only be a simple majority of 51, in practice the threat of filibuster can raise the required number to 60 (because 60 votes are required to stop a filibuster). These two Senate committees have influence over presidential appointments that parallel House committees do not have. Let s get back to what happens in committees once a bill is assigned. If the committee has subcommittees, and not all of them do, the bill is sent to the appropriate subcommittee. (You can find a list of subcommittees for each committee by following the links for each committee in the listing shown above.) Subcommittees are usually organized by subject matter. The committee chair

31 plays a key role in this assignment of bills, but the committee as a whole has the final say. So let us suppose that our hypothetical bill has made it to subcommittee. Now what happens? Usually nothing. Most bills go to subcommittee and die a quiet death with no subcommittee action. Members know this is the fate of most bills they introduce. So why would they introduce bills that are unlikely to pass? They may want to claim that they tried to take some action, and then blame the rest of Congress for the failure to act. Blaming Congress increases popular disdain for Congress, a major theme in this chapter. Sponsoring locally popular bills that fail can be useful in re-election campaigns, though too many failures can be seen as a sign of ineffectiveness. If the committee or subcommittee acts, it usually does three things to move the bill on to the next stage. First, it holds hearings. Hearings involve taking written and oral testimony for and against the bill, along with suggestions for changes. Testimony comes from those who introduced the bill, sometimes from members of the other house, from interest group representatives, from constituents, from members of the bureaucracy who might be affected by the bill, and from representatives of the White House if it is a bill the president supports or opposes. All of this testimony is printed up in journals. Often the journals include copies of scientific studies that may be relevant. If a bill happens to be in an area in which you are doing research as a student, you can get a lot of valuable information about the subject from the record of the hearings. After hearings, the committee or subcommittee marks up the bill. Marking up a bill involves going through the bill line by line (bills have all lines numbered on each page) and marking changes (amendments) to the bill. Interest group representatives, called lobbyists, follow these detailed changes quite carefully. Changing one word, like should to shall or must, can make a great deal of difference in how a law affects interest groups. Finally the committee or subcommittee votes on whether to recommend the bill for passage. If the bill is recommended favorably by a subcommittee, the whole committee can go through the entire process again. But usually the committee just votes on the bill and sends it on. Or they can kill it with a negative vote, or just let the bill die by inaction. Let us suppose that the bill survives subcommittee and committee action. What happens next? C. The House Rules Committee and the Senate s Unanimous Consent Agreements

32 Different things happen at this stage in the House and Senate. As noted earlier in this chapter, these differences are the result of the difference in the sizes of the two chambers. Let s deal with the House first. In the House nearly all important bills coming from committee go to the House Rules Committee. It is a most important committee because bills must get through it to go to the floor of the House. Rules is called the traffic cop of the House because it controls the flow of legislation. The committee attaches a rule to each bill, and the rule is treated like a separate piece of legislation. The rule for a bill has to be voted on by the House before it can consider the bill itself. The rule lays out the time that each side has for floor debate and places limits on amendments that can be made on the floor (ranging from no amendments a closed rule to any amendments allowed an open rule). Without a rule a bill does not go forward, unless House members take the extraordinary and rare action of passing a discharge petition. This forces a bill out of any committee and takes it to the floor. In theory Rules Committee members are not supposed to change the substance in a bill. They are supposed to restrict themselves to the rule to be attached. But in practice they have considerable informal influence on what happens to a bill in the original committee and/or subcommittee. This is because when considering a bill, committee and subcommittee members writing the bill care a great deal about the opinions of members of the Rules Committee. They know that their bill must have a rule to get to the floor. They also want a rule that will protect the bill from a lot of changes on the floor. The bottom line is that Rules Committee members influence the content of many bills that go through the House. Bills on the Senate side do not go through a Rules Committee (though the Senate has a committee with the word Rules in its title, a relatively unimportant committee). In the Senate no limits exist on debate or amendment. This is because the smaller Senate affords each member more individual power and discretion. The Senate operates more informally. What happens is that the Majority and Minority Leaders get together and negotiate what are called unanimous consent agreements in which rules for floor action are approved by both sides. If the majority and minority are unable to agree on rules for debate, then the bill is likely to fail, and the majority will usually not even bring it to the floor. This process makes passage much more difficult in the Senate than in the House. Even a small minority in the Senate can block most bills the cooling action George Washington spoke about lives on! Some observers go so far as to say that in the House the majority rules and in the Senate the minority rules. This is perhaps a bit of an overstatement, but not far from the truth, especially in

33 recent years when the minority party has blocked almost all legislation they oppose in the Senate. D. Floor action Let us assume that our hypothetical bill does make it to the floor. We will assume it has a rule attached to it in the House that allows some amendments and a unanimous consent agreement exists to allow action on the floor in the Senate. Let s talk about the House first. The first thing the House does is vote on the rule. If the House passes the rule, which is usually the case, the House moves on to debate and possibly amend the bill. If the House rejects the rule, the bill is all but dead. Most rules for debate on a bill specify that the House acts on amendments and debate in something called the Committee of the Whole. The major reason for this is to avoid the Constitutional quorum requirements of a majority of all members (Article 1, Section 5). In the Committee of the Whole, the House only needs 100 members to operate and the Speaker designates someone else to preside. The total time allowed by the rule for debate is usually evenly divided between the proponents and the opponents. The floor leader, who is usually the main sponsor of the bill and often a member of the committee that had jurisdiction over the bill, decides who will speak for the bill and how long each member will have. The opposition is usually led by a member of the minority party who was also on the committee that considered the bill. After debate and recommended amendments, the House dissolves the Committee of the Whole. Then the House takes formal actions with the Speaker presiding. They vote on amendments (which are allowed if a bill has an open rule) and then the bill itself. In this process the average member usually has little opportunity to speak or propose amendments. On the Senate side each member has a great deal more freedom to speak and to make amendments. Most of you have heard of the term filibuster, which is also called unlimited debate. This is when a member or members use their power to speak at length unlimited length to hold up all other action and prohibit a vote until the bill s supporters give up. Usually the threat of a filibuster is enough to keep a bill s supporters from even trying to bring it to the floor. If a filibuster does take place, it can be defeated in two ways. First, the majority can try to break the filibuster by wearing the minority out. In the past a filibuster could involve 24-7 sessions in which members slept on cots just off the floor so that they could come back to the floor for any quorum calls and force the opponents to keep on talking. This can work if only a few members are

34 filibustering. That was rare. If several members joined forces, they could play tag team and talk on almost without end. The other way is a cloture vote, a vote to end debate. The cloture rule requires 60 votes, which is very difficult. Usually the vote is along party lines and usually neither party has 60 votes they can count on. Getting members of the other party to vote for cloture against their own party is nearly impossible. Even if the majority has 60 members, cloture is difficult. The last few members whose votes are needed to make 60 votes can have tremendous leverage over what is in a bill that is threatened by filibuster. The practical impact of the 60 vote requirement is that the majority really needs 60 votes to pass any controversial bill, not 51. Formal filibusters are rare today because of rules changes made in the early 1970s aimed at making the Senate more efficient. These rules, called the tracking system, allow other business to take place even though a filibuster is holding up a single bill. In practice, while this makes other business more possible, it also makes filibuster easier to use. Senators could block bills they did not like without holding up legislation they did like and did not have to go to the trouble to actually speak. Today all senators do is announce that they will invoke the rules of filibuster. In effect, this raises the number of votes to pass a bill up to the number required for filibuster, 60. If the minority party is united and has more than 40 votes, they can kill the bill. After the Democrats took control of a majority of the Senate in 2007, the Republican minority dramatically increased usage of the filibuster and other delaying tactics. One measure of this is the number of cloture motions filed to break filibusters. It rose from the high 60s to over 250 in before the Republicans regained a majority in the Senate. (To see a chart on this, go to: You might wonder if any real justification exists for allowing filibuster, other than making legislation more difficult to pass. The stereotypical image of the filibuster is quite negative: the conservative southern senator who used the tactic to stop progressive civil right legislation. Indeed, the record for the individual filibuster is held by South Carolina s Strom Thurmond, who filibustered the 1957 Civil Rights act for 24 hours and 18 minutes. Thurmond went it alone because other southerners had given up hope of blocking this bill, which was relatively weak in what it would actually do. He took no bathroom breaks and sometimes spoke so softly that no one could really hear him. He prepared himself for this by dehydrating for several days. Eventually he gave up and the filibuster ended. Those filibustering can say anything they want whether it is related to the bill or not. For example, Thurmond read recipes from constituents, which were then printed at government expense in the proceedings, and mailed out to constituents.

35 Yet despite this negative image, some justification for filibuster exists. The right to filibuster allows an intense minority to express the intensity of its opposition in a way that a simple yes or no vote cannot express. What filibuster says is something like the following: I am so opposed to this bill that I am willing to exhaust myself expressing all the reasons for my strong opposition and hold up all other business, even if this makes you angry with me. The majority has to be stronger than a simple majority to defeat this intense opposition at least 60 votes to impose cloture. So filibuster protects minority rights by limiting the ability of a simple majority to trample over an intense minority on every issue, no matter how important to the minority. Filibuster is not really conservative or liberal. It can be used by either side in stopping things they strongly dislike. Filibuster has been used not only by anticivil rights conservatives, but also by environmentalists to stop measures that they felt would have been harmful. So if you believe in limited government, you might want to reconsider filibuster s negative reputation. You also might wonder why a minority party with more than 40 votes ever allows the majority to pass anything. The minority could use the filibuster to stop anything it dislikes. Historically speaking, up until recent times the reason the minority would not do this is that every member has something they want passed, especially things that would benefit their constituents. Overuse of filibuster would cause retaliation so that the minority would never get anything it wants if it blocked everything the majority wants. So the wise senator used filibuster sparingly and with caution. Having said all that in defense of the filibuster, the logic of these justifications does not apply as well to the modern filibusters where no actual filibuster takes place. Simply threating filibuster without any real costs to those who threaten it undermines the special claims of being a member of an intense minority. It turns minority rights into minority veto of anything they oppose. The dramatic rise in filibusters in recent years attests to this change. Perhaps the most absurd example of the use of filibuster in this way was in December of 2012 when Senate Minority Leader Mitch McConnell threatened filibuster of his own motion, a motion on giving the president power to raise the debt ceiling. McConnell hoped to embarrass the Democrats by showing that they did not have the votes to pass the bill. But when Democratic Majority Leader Harry Reid called his bluff and agreed to have the vote, McConnell announced that he would invoke the rules of filibuster to require 60 votes for passage. The bill he proposed died on his own threat of filibuster a historical first! E. Conference Committees If our hypothetical bill is passed by the House and the Senate, it could go directly to the president, but usually another step is required, conference

36 committee. The only way a bill goes directly to the president is if both houses pass identical bills. That is fairly rare. If any differences exist, then Congress must resolve those differences. They try to negotiate a compromise in a conference committee. This is a temporary committee for each separate bill whose membership is named by the leadership in both houses. It usually consists of the major supporters of the bill from both houses and can vary in size. It may include some opponents as well. If the two houses are controlled by different parties, the conference committee may find compromise difficult. If they fail to reach a compromise, then the bill is dead. Conference committees are supposed to limit themselves to areas of difference in the bills and not change other things. However, in practice they may make other changes as part of a compromise package. If a majority of both the House and Senate conference committee membership agree, the compromise bill then goes back to each house for an up or down vote. No amendments are allowed. In order to pass, both houses must approve. If either house fails to pass the bill, it goes back to conference. A bill could go back and forth till members give up. So we have another way a bill could die. F. Presidential options, vetoes and overrides After both the House and Senate have passed the identical bill, it then goes to the president, who has three choices. She or he can sign it so that it becomes law, veto it (all of it, not just a part remember Article 1, Section 7 and the discussion of the line item veto at the beginning of the chapter), or the president can do nothing. As we discussed at the beginning of this chapter, if the president does nothing, the bill becomes law if Congress is still in session after ten days. It dies if Congress adjourns (the pocket veto ). Presidents have been very successful in having Congress uphold or sustain a veto, which is a formal action taken by the president to kill a bill after it has been passed by Congress. Usually along with the veto the president issues a veto message, a formal statement explaining why the bill should not become law. Congress is rarely able to achieve the two-thirds necessary in both chambers to override. Only an unusually strong majority can successfully override a veto. In the Senate, for example, all the president needs are 34 votes to uphold a veto. The historical percentage overridden is less than 10%, though most presidents do far better than that in having their vetoes upheld. The flowchart below provides an outline of the entire process.

37 G. Evaluation Slow Going, Perhaps More than the Founders Intended This broad outline of how a bill becomes law leaves out a lot of details. But it gives enough detail for you to see the obvious conclusion. The process has a built-in bias against passing laws. The status quo the way things are has an overwhelming advantage. A bill can die at each stage in this long complex process and has to survive each and every stage to become law.

38 The Founders designed an institution to make any change in policy to happen very slowly, if at all. That design continues to work today, as we see in frequently expressed popular frustration with slow movement by Congress. Moving slowly is certainly what the Founders intended, but in light of a series of recent inactions leading to one crisis after another, we must ask some tough questions. Has the balance between quickly responding to public opinion and slow deliberative action gone out of balance to the point that Congress cannot act at all? When congressional districts lines are designed to protect most incumbents from serious challenges from the other party so that most members feel no need to compromise, have we gone too far from slow change to almost no change? When Senate rules allow members to threaten filibuster on almost any bill so that the minority rules rather than the majority and they cannot even pass annual budgets, have we gone too far and stalemated government? More and more people have concluded that Congress is too far out of balance. Some actions have been taken place, and others were being discussed as this edition of the text was being. In a popular referendum over the objections of both political parties, California is the latest of nine states to give the responsibility of drawing district lines to a bipartisan or nonpartisan redistricting commission. The result was more competition between the parties in more districts and a partisan balance in who won that was closer to the partisan balance in the state as a whole. Opponents of this reform legally challenged a similar law in Arizona as violating the constitutional mandate that the times, places, and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof (Article I, Section 4) by giving this responsibility to a redistricting commission and taking it out of the hands of the state legislature. But a 5 to 4 majority of the Supreme Court read the word legislature differently. They reasoned that the popular referendum that voters passed to create the commissions could also be seen as a legislature in which the people acted as the legislature (Arizona State legislature v. Arizona Independent Redistricting Commission, 2015). Remember what we said in the previous chapter about how the Constitution can be interpreted! The U.S. Senate has been discussing limits on filibuster so that we do not continue to set records for the numbers of bills that get stopped because of the mere threat of filibuster. Some proponents of change want to end the tracking system and actually make senators filibuster so the really have to talk, not just

39 make an announcement. Some thought has been given to limiting the number of motions that can be filibustered. During the Obama presidency Republican and Democrats in the Senate negotiated some modest reforms that placed some limits on filibuster. Certain procedural motions, like taking up new business, could not be filibustered. And lower level executive branch and judicial nominations could not be filibustered. Though those wanting to block bills of nominations did not actually have to speak, they did have to remain on the floor of the Senate, and not just register their intent and go out to lunch. Despite this, Democrats were frustrated at the historical high rate of filibuster aimed at Obama s nominations. Eventually they overrode the filibuster of a number of presidential nominations using a special rule (called the nuclear option ) that allowed a simple majority to pass a nomination. Republicans were outraged. No doubt the next time Republicans have a president and a majority in the Senate, the Democrats would be on the receiving end of this tactic. Stay tuned! New rules adopted in 2012 make filibuster more difficult, but still do not require the old way of filibuster, as shown in the classic movie Mr. Smith Goes to Washington in which Senator Smith, played by Jimmy Stewart, held the floor till he was exhausted (from trailer of movie, public domain because not originally published with copyright notice). Changes in procedures and election rules are often as difficult as changes in policy. So we should expect them to come slowly and gradually as well. Great changes may not happen until enough citizens become frustrated enough to start a national movement to change the rules so that those who get elected better represent public opinion and so that minorities in the Senate cannot routinely stop almost anything they oppose. Before any movement can take place, citizens must first understand why Congress has moved toward gridlock. To understand that, citizens need to understand how Congress operates. Hopefully, this text and this class will help a tiny bit in that understanding, so perhaps you can help keep our republic!

40 IX. Policy Implications Energy Policy Perhaps no policy area better illustrates the bias against action and the inherent conflict between the representation and policy-making roles than energy policy. Several times in recent years the price of gasoline rose dramatically and had a negative effect on the general economy as well as the daily lives of nearly all Americans. But gasoline prices were only the most visible part of a longer term problem facing the nation and the world world dependence on environmentally damaging fossil fuels controlled by a few nations coupled with increasing world demand and finite supplies. Though gasoline prices are higher in most other parts of the world, the increases a few years ago in the U.S. stimulated many jokes, such as this one (public domain). The oil crisis at the end of the first decade of the 2000s was not the first oil crisis the United States had faced. In the late 1970s the Organization of Oil Exporting Countries (OPEC) greatly reduced oil production to punish the United States for its support of Israel. People lined up for hours at gas pumps to buy limited amounts of available gas. President Carter submitted a comprehensive energy package. Congress did not pass anything until the crisis was over because of disagreements among members of Congress about what should be done much deliberation and representation of a variety of different interests. Some of the measures Congress passed, like the 55 mph speed limit, are now gone. The Strategic Oil Reserve was created to provide a supply of oil for the nation if supplies were cut in the future. Because the longer term crisis involves so many interests and so many questions, the ability of Congress to act in any comprehensive way has been difficult if not impossible. Perhaps a place to start is outlining the interests and questions. The interests involved in energy policy include not only direct energy interests (oil, natural gas, coal, nuclear, and alternative interests like solar and wind and hydrogen), but also related interests. For example, the automotive industry traditionally fought any increases in gas mileage requirements.

41 Agricultural interests are split in concern about the energy costs in producing food and shipping it to markets and those that want to grow crops used to produce ethanol. Trucking interests added surcharges for shipping costs, and airline travel is becoming more and more difficult as airlines try to cope with soaring fuel costs. Railroads could be a beneficiary of high fuels costs because they are one of the most energy efficient ways to moving goods. But decades of neglect greatly eroded the basic track infrastructure around the nation. Of course we need to add environmental interests to the mix, which see fossil fuels as having a negative impact on climate change. Most recently, environmental groups have sprung up around the nation in areas where natural gas and oil is being produced using the new technology of fracking. That production was largely responsible for lowering the price of energy not any action by Congress! An anti-fracking symbol (public domain). Many homemade symbols similar to this can be seen on farms and in yards around areas where fracking is happening or is being considered. Currently the balance of power among these interests favors gas and oil interests, so any action to reduce our dependence on oil has been difficult. But as other interests are negatively impacted by higher prices and as the public outcry grows over environmental concerns, pressure for movement away from an oil-centered energy policy will grow. Policymakers agree on a few things. For example, even though the growth in domestic natural gas production and oil production has helped reduce the use of and price of oil, we still import a great deal of oil. Importing energy is not a good thing generally. It can be very bad when the price of oil goes up. Every gallon of gas burned ships our wealth abroad, wealth that could otherwise have been used to invest in our own economy. We could also add that many of these dollars go to a lot of undemocratic nations that do not like us very much. This links us to one of the most oppressive regimes with respect to the rights of women in the world Saudi Arabia. And some of that money gets funneled into terrorist activities every time you or I drive our cars, we are helping fund terrorism! However, policymakers disagree on many more things. Some argue that high oil prices are a good thing because they will force us to develop alternative cleaner fuels and be more efficient in the oil we do use. Some say prices should even be higher by adding a tax and using the proceeds to invest in alternative