|Lesson 3: Congress|
To understand the structure and process of the Legislative Branch, and to be familiar with both sides of the debate surrounding electronic voting and other controversies.
The US Constitution provides for “separation of powers” and “checks and balances,” but it is still fair to claim that the Founding Fathers anticipated that Congress would be the branch that gave clearest voice to the diverse opinions and aspirations of voters.
That’s partly why its duties and responsibilities are included in Article I of the Constitution. The principal architect of the US Constitution, James Madison, made this clear in The Federalist Papers #51:
|“But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates.”|
James Madison also feared excessive power in the Congress, which is why he and others settled on the proposal for a “bicameral” legislative branch: a House of Representatives and a Senate. For a bill to become a law, it would have to pass both houses of Congress, which is difficult.
As James Madison continued:
|“The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions.”|
While Madison and others were acutely aware of the potential tyranny of a single despot, king or even president, they were also cautious about the concept of “direct democracy,” suspecting that Congress might become a vehicle for “tyranny of the majority.” In such a tyranny, a majority would begin to restrict the rights of individuals and minorities.
A Joint Session of Congress
As James Madison wrote in The Federalist #10:
|“A pure democracy can admit no cure for the mischief of faction. A common passion or interest will be felt by a majority, and there is nothing to check the inducements to sacrifice the weaker party. Hence it is, that democracies have ever been found incompatible with personal security or the rights of property; and have, in general, been as short in their lives as they have been violent in their deaths.”|
He saw direct democracy as a danger to individual rights and advocated a representative democracy (also called a republic), in order to protect what he viewed as individual liberty from majority rule, or from the effects of such inequality within society.
“The tyranny of the Legislature is really the danger most to be feared, and will continue to be so for many years to come. The tyranny of the executive power will come in its turn, but at a more distant period.”
Alexis de Tocqueville, in Democracy in America, also raised the problem of an overly-strong legislature in the 1840s:
|“The legislature is, of all political institutions, the one which is most easily swayed by the wishes of the majority. The Americans determined that the members of the legislature should be elected by the people immediately, and for a very brief term, in order to subject them, not only to the general convictions, but even to the daily passion, of their constituents. The members of both houses are taken from the same class in society, and are nominated in the same manner; so that the modifications of the legislative bodies are almost as rapid and quite as irresistible as those of a single assembly. It is to a legislature thus constituted that almost all the authority of the government has been entrusted.But whilst the law increased the strength of those authorities which of themselves were strong, it enfeebled more and more those which were naturally weak. It deprived the representatives of the executive of all stability and independence, and by subjecting them completely to the caprices of the legislature; it robbed them of the slender influence which the nature of a democratic government might have allowed them to retain. In several States the judicial power was also submitted to the elective discretion of the majority, and in all of them its existence was made to depend on the pleasure of the legislative authority, since the representatives were empowered annually to regulate the stipend of the judges.”|
The US Congress is “bicameral,” as mentioned above, meaning it has two chambers. The upper chamber is the Senate, and it is more powerful because it has the final authority on the budget, foreign treaties and other matters. Today, each of the 50 states has two senators who serve renewable terms of 6 years. In a sense, this arrangement gives the smaller states extraordinary and disproportionate power in the Senate. Wyoming, with fewer than one million people, has the same number of senators as California, with over 38 million people.
The lower chamber is the House of Representatives. Each of the 50 states has a different number of representatives, depending upon their relative population, and this is determined in the national census conducted every 10 years. There are 435 representatives who serve renewable terms of 2 years, with California having the most, while small states like Vermont or Wyoming have just one.
Congress is especially relevant today because of the polarization of the American public – of its apparent division into conservative and liberal voting blocs. While some scholars downplay this division, partisan politics and the culture wars have figured prominently in the campaigns and elections from 1994 onward. The presidential election of 2000 was the closest ever, and issues of transparency and fairness arose in that election.
For these reasons, issues of electronic voting and redistricting have become more important in Congress. A small difference in the shape or size of a legislative district at the state level can change the outcome of national politics – as can, for some critics, whether or not a district employs electronic voting machines. Some of these controversies are addressed below. It is important to point out that Congress is normally held in low regard by American popular opinion and today many if not most people hold negative opinions about Congress.
“Reader, suppose you were an idiot and suppose you were a member of Congress. But I repeat myself.”
Scope and Limits of Legislative Power
What Congress is supposed to do – and what it is not supposed to do – is spelled out in Article I of the US Constitution.
Article I, section 8, provides a clear enumeration of the duties and responsibilities of Congress.
|Article I. Section 8.The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense 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;
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, dockyards, and other needful buildings;–And
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, or in any department or officer thereof.
The “necessary and proper clause” mentioned at the end of end of Section 8 keeps Congress occupied; passing new legislation that is theoretically both “necessary” and “proper” to fulfill its duties. How is all this “work” accomplished?
|How a Bill Becomes LawIntroduction of Bills. Bills can begin in either the House or the Senate. Different versions of a bill can begin in both chambers concurrently.|
- Bills can only be introduced by members of Congress.
- Many bills originate in the Executive Branch and are introduced by a congressional sponsor.
- New bills are numbered and sent to the appropriate committee.
Committee Action. The bill comes under its most intense scrutiny while in committee, and most bills die in committee.
- The bill is considered either by the full committee or a subcommittee
- The committee may order a “clean bill,” with a new number, to be introduced.
Floor Action. Next, the bill appears before the entire House or Senate. The two chambers have different procedures for floor debate.
- The House Rules Committee regulates debate for each bill, issuing the “rule” for the bill.
- Members can speak on a bill for a set period of time, as specified in the “rule.”
- To speed debate on some bills, the House meets as the Committee of the Whole, which has different rules for floor debate. The Committee of the Whole can amend a bill, but cannot pass it.
- Senate debate is unlimited. However, today, only the indication that a senator is willing to hold an unlimited debate is enough to prevent a bill from receiving an up-or-down vote (no actual time on the Senate floor). This is known as a filibuster.
- A filibuster may be closed by unanimous consent (which is very unlikely), or by invoking “cloture,” which requires a three-fifths vote of Senators present. If all 100 Senators are present, then 60 votes are required to invoke cloture.
- Successful filibusters effectively kills a bill. Today, almost every bill in the Senate requires 60 votes to end a filibuster so the bill can receive an up-or-down floor vote.
Second Chamber. Once one chamber has voted to pass a bill, the other chamber may:
- Pass it with the language intact.
- Refer it to a committee for scrutiny or alteration.
- Reject the entire bill, informing the other chamber of its actions, or
- Ignore the bill, while working on its own version of the legislation.
Conference. When the two chambers pass differing versions of similar legislation, the bill goes to a conference committee to reconcile the differences. A conference committee is convened as necessary. Its members consist of equal members from both political parties. Once the conference committee has crafted a compromise bill, both the House and Senate need to pass it again as it is (with no further changes) before it is sent to the president for signature.
The President. The Speaker of the House and the President of the Senate both sign the approved bill and send it to the president, who then has four options.
- If the president signs and dates the bill, it becomes law.
- If Congress is in session, and the president does not sign the bill within 10 days, the bill becomes law without his signature.
- The president may “veto” the bill. The bill then goes back to Congress for a veto override vote. In order to override the president’s veto, there must be a 2/3 vote in the House and a 2/3 vote in the Senate. (A 2/3 vote by Congress, overall, is not sufficient.
- If Congress adjourns within 10 days of giving the bill to the president, and he does not sign it, the bill dies. This is called a “pocket veto.”
Due to the high volume and complexity of legislation, Congress divides its tasks among approximately 250 committees and sub-committees. The House and Senate each have their own committee system, which are similar. The list below offers a sense of how Congress divides its responsibilities into various spheres of activity.
Agriculture, Nutrition, and Forestry
Banking, Housing, and Urban Affairs
Commerce, Science, and Transportation
Energy and Natural Resources
Environment and Public Works
Health, Education, Labor, and Pensions
Homeland Security and Governmental Affairs
Rules and Administration
Small Business and Entrepreneurship
Veterans AffairsSpecial, Select, and Other Committees
Select Committee on Ethics
Select Committee on Intelligence
Special Committee on Aging
Joint Committee on Printing
Joint Committee on Taxation
Joint Committee on the Library
Joint Economic Committee
Energy and Commerce
Standards of Official Conduct
Transportation and Infrastructure
Ways and MeansSpecial, Select, and Other Committees
House Permanent Select Committee on Intelligence
Committee to Investigate the Preparation for and Response to Hurricane Katrina
Joint Committee on Printing
Joint Committee on Taxation