4 Congress and Policymaking © Jean-Pierre Lescourret/Corbis Learning Objectives By the end of this chapter, you should be able to • • • • • • • Distinguish between enumerated and implied congressional powers. Analyze congressional powers on the basis of the Necessary and Proper Clause. Analyze the ways that Congress performs its representative function. Analyze the organization of Congress and how that organization affects the legislative process. Describe how bills become laws and explain the political nature of the legislative process. Describe how Congress holds the executive branch accountable. Explain the different aspects of congressional elections. © 2016 Bridgepoint Education, Inc. All rights reserved. Not for resale or redistribution. fin82797_04_c04_075-106.indd 75 3/24/16 1:41 PM Congressional Powers as Stated in the U.S. Constitution Section 4.1 Toward the end of the 111th Congress (2009–2011), Congress passed a bill to extend two of President George W. Bush’s tax cut bills: the Economic Growth and Tax Relief Reconciliation Act (2001) and the Jobs and Growth Tax Relief and Reconciliation Act (2003). While the cuts lowered tax rates overall, earners in the top tax brackets derived greater benefit than those in lower tax brackets did. Critics suggested that the cuts were actually giveaways to the rich, while supporters claimed reduced taxes helped spur economic growth, as individuals would have more money in their pockets to spend. © Michael Reynolds/epa/Corbis After much haggling and compromise, members of Congress from both parties, along with President Barack Obama, reached an agreement to extend the Bush tax cuts that both sides could live with. As the tax cuts were about to expire in 2010, President Barack Obama and congressional Democrats favored the tax cuts expiring for those earning at least $200,000 per year. Meanwhile, Republicans, who had secured a majority in the House and narrowed the Democrats’ majority in the Senate in the 2010 midterm elections, promised to extend the cuts for everyone. The tax rates would increase on January 1, 2011 if no action were taken. Members of both parties were concerned that a tax rate increase would slow the emerging economic recovery. Incoming Republicans were prepared to vote for a complete extension once the 112th Congress took office on January 6, 2011. They believed that there were so many Democrats concerned about being reelected in 2012 that they would vote with them to make the needed legislative majorities. Democrats believed that if no action were taken on the extension, the Republicans would gain the upper hand. Democrats also wanted to extend unemployment insurance benefits to last 99 weeks and pass a new stimulus plan, which the Republicans opposed. Some Democrats in Congress were prepared to stand on principle and reject Republican demands. Yet with help from the White House, most Democrats and Republicans were able to reach a compromise. Congressional Democrats and the president supported a 2-year tax cut extension across all income categories if congressional Republicans would support the 99-week unemployment benefits extension along with a stimulus package that included a 2% deduction of Social Security payroll taxes for 1 year. Ideological purists in both parties were dissatisfied, while practical-minded Congress members understood the political realities of lawmaking that include deal making, vote trading, and compromises. The tax cut extension is a good example of how Congress members seek to represent their constituents. In this chapter, we explore how Congress represents the American people. 4.1 Congressional Powers as Stated in the U.S. Constitution Congress is the legislative branch. As such, it writes the nation’s laws and makes public policy. Further, Congress holds the executive branch accountable through its oversight function. © 2016 Bridgepoint Education, Inc. All rights reserved. Not for resale or redistribution. fin82797_04_c04_075-106.indd 76 3/24/16 1:41 PM Congressional Powers as Stated in the U.S. Constitution Section 4.1 By raising and spending money, Congress determines how taxpayer funds will be allocated. The U.S. Senate influences foreign policy through its power to confirm Cabinet-level appointments (secretary of state, secretary of defense) and ambassadorships and by ratifying treaties. Finally, Congress participates in national security by raising armies and declaring war on other nations. Each of these functions speaks to the primary role of the legislative branch to represent the people. The scope of congressional power, and the parameters of its representation, are both established in Article I of the Constitution, Section I, which states, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” Once Congress is established as bicameral, or made up of two chambers, it defines who is eligible to serve, how each chamber selects its members, and term length. Members of the House represent the people in districts for 2-year terms. Citizens are also represented by senators, who serve for 6-year terms. Most importantly, however, Article I outlines the principal powers of Congress, which are the power of the purse, the power to declare war, and implied powers. Enumerated Powers: The Power of the Purse The power of the purse is perhaps Congress’s most important power. Article I, Section 7 states, “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.” This means all bills concerning taxes must be proposed by the House of Representatives before moving on to the Senate. It is the responsibility of Congress to pass the national budget before it is signed by the president. Article I, Section 8 includes enumerated powers, or the powers specifically granted to Congress by the Constitution: “Congress shall have Power to Lay and collect Taxes . . . To borrow Money on the Credit of the United States . . . To Coin Money, regulate the Value thereof, and of foreign Coin and fix the Standard of weights and Measures.” Further, Congress has the authority to impose taxes, borrow money, and print money. Congress may decide whether the nation will use coins or print money. While Congress has the power to raise taxes and spend money, the national budget, like any other law, must be approved by majorities in both houses of Congress and signed by the president. The Budget and Accounting Act of 1921 requires the president to prepare budget estimates, which are then submitted to Congress. This requirement helps Congress learn about department budget needs. Before this law was enacted, departments often submitted their budget estimates directly to Congress. The purpose of the Budget and Accounting Act, Associated Press/Doug Mills Only Congress has the authority to lay and collect taxes, and to borrow and print money. Presidents prepare budgets and submit them to Congress. © 2016 Bridgepoint Education, Inc. All rights reserved. Not for resale or redistribution. fin82797_04_c04_075-106.indd 77 3/24/16 1:41 PM Congressional Powers as Stated in the U.S. Constitution Section 4.1 which required the president to submit budget estimates, was to give the president responsibility for the budget. From an administrative standpoint, the president has greater control over executive branch agencies and departments, which promotes greater accountability. The president’s right to submit a budget proposal can be inferred from Article II, Section 3 of the Constitution, which says, “He 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.” Consider the vignette introducing this chapter. Extending the Bush tax cuts required Congress to introduce a bill calling for their extension. Because the bill concerned taxation, the House had to introduce it, after which the Senate needed to approve it before it was formally presented to the president, which is required under Article I, Section 7. Had Congress failed to act, it would have meant the expiration of the Bush-era tax cuts, as originally enacted. Enumerated Powers: The Power to Declare War The enumerated powers of Congress include the power to “declare War,” “raise and support Armies,” and “provide and maintain a Navy.” If Congress declares war, Congress must also appropriate the money to fight it. When the Constitution was initially ratified, there was no Air Force, and the Army and Navy were each separate departments. Today, all branches of the military fall under the Department of Defense, and Congress makes appropriations for all of them. Still, the authority to appropriate money to the armed forces is taken from specific constitutional provisions. The formal authority to declare war is a matter of maintaining checks and balances. Traditionally, presidents request formal declarations of war from Congress. Congress has declared war five times since the Constitution was ratified. The last time was on December 8, 1941, one day after the Japanese attacked the United States at Pearl Harbor. President Roosevelt appeared before a joint session of Congress and requested the declaration. Historical congressional declarations of war include the following: • • • • • War of 1812 (1812–1814) Mexican American War (1846–1848) Spanish-American War (1898–1898) World War I (1917–1921) World War II (1941–1945) Implied Powers and the Necessary and Proper Clause Congress’s implied powers are based on the enumerated powers in Section 8. Congress uses its implied powers to expand its authority beyond the scope of its enumerated powers. Article I, Section 8, Clause 18 states, “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 of the United States, or in any Department or Officer thereof.” As noted in earlier chapters, this clause is also known as the Necessary and Proper Clause and suggests that Congress has an implied power to do something not explicitly enumerated in the Constitution if it infers that such action is necessary to fulfill its other constitutional requirements. For example, © 2016 Bridgepoint Education, Inc. All rights reserved. Not for resale or redistribution. fin82797_04_c04_075-106.indd 78 3/24/16 1:41 PM The Meaning of Representation Section 4.2 Congress’s enumerated powers include the power “To raise and support armies,” although the Constitution does not specify what that means. It has meant calling upon state National Guard units and military drafts even though the Constitution does not give Congress the specific authority to do either. Congress, however, can infer the right on the basis of the Necessary and Proper Clause, because calling upon the National Guard is understood, or inferred, to be part of Congress’s power to “raise and support armies,” which is an enumerated power. Implied powers are the basis for justifying broadening congressional power. You may recall from the last chapter that during the period of Dual Federalism, congressional power was assumed to be limited because the Constitution outlines what it can do. More recently, Congress has overcome that restriction by asserting its implied powers. If Congress passes a law using its implied powers and without enumerated constitutional authority, that law may be challenged as unconstitutional in the courts. Even when there is an enumerated power, such as with interstate commerce in the Commerce Clause, its scope may not be clear. The Necessary and Proper Clause allows Congress to tie legislation to the Commerce Clause. Congress established the precedent for such an expansion of its powers in the early days of the republic when the Federalists supported a national bank over the objections of the Anti-Federalists, who claimed that it would violate states’ rights. After heated debate, Congress established the bank on the grounds that it was necessary and proper for the purposes of coining money. Arguably, such reasoning could serve as the basis for unlimited congressional authority. This argument was used when Congress passed the first minimum wage law in 1938. Before then, national legislation was considered to be an unconstitutional encroachment on a state’s police power. Congress argued that, when firms were conducting business across state lines, employee pay was a matter of national concern because of Congress’s express authority to regulate interstate commerce. The constitutionality of the minimum wage was upheld on these grounds. More recently, during the debate leading up to passage of the Affordable Care Act of 2010, conservative critics asked what the basis in the Constitution was for such legislation, especially the requirement that individuals purchase health insurance. Congress’s response was that the power was found in the Commerce Clause. The U.S. Supreme Court upheld the Affordable Care Act on the grounds that the health insurance requirement was a tax. As Article I, Section 8 gives Congress the power to lay and collect taxes, it was within Congress’s power to mandate health insurance because the tax is a penalty for not purchasing the health insurance. 4.2 The Meaning of Representation Congress makes policy and passes legislation all as part of its representation function. Yet representation means different things to different people under different circumstances. On the one hand, representation can mean that Congress members do exactly what the people tell them to do. Yet Congress members represent by doing what they believe is right because they have been entrusted by the people to speak and make decisions on their behalf. Representation can be interpreted on an individual level, such as when a member of Congress performs constituent services such as helping to track down a missing Social Security payment; it also can mean that Congress as a legislative body represents the people by holding the executive © 2016 Bridgepoint Education, Inc. All rights reserved. Not for resale or redistribution. fin82797_04_c04_075-106.indd 79 3/24/16 1:41 PM The Meaning of Representation Section 4.2 branch of government accountable. Congress members are expected to represent the people by serving as their agent and acting on their behalf. Apportionment and Congressional Districts Article I of the Constitution provides for apportionment, or the distribution of House seats among the states on the basis of population. Larger states are apportioned more representatives than smaller states are. House seats are apportioned into congressional districts. The Constitution does not require congressional districts. Rather, it states in Article I, ­Section 2, The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at least one Representative. Put differently, it is up to the states to define the boundaries of congressional districts. During the early years, each state could decide if it wanted districts at all. Most states established themselves as single-member districts, which meant that each district had only one representative. The alternative was to allow for members of the House to represent their states on an at-large basis such that a state with 10 House seats would be represented by all 10, each representing the entire state, as opposed to 10 separate districts, with one representative each. An at-large system would make the House similar to the Senate with members representing their states rather than the people. To prevent this, Congress passed the Apportionment Act in 1842 requiring all states to send representatives to Congress from singlemember districts (as of the 2010 Census, seven states have one representative each because of their small populations; in these states, all state residents are represented at large). Associated Press/Nati Harnik The Nebraska Legislature’s Redistricting Committee redraws the state’s congressional districts, something states do periodically. Beyond the one-seat minimum guaranteed in the Constitution, the number of House seats apportioned to each state is determined by population. Interestingly, the Constitution does not require equal representation in each congressional district. According to Article I, Section 2, “The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative.” The implication is that there is no fixed number of representatives in the House. As the population grew, the Constitution implied, so too would the number of representatives. But in 1929, federal law fixed the number of House seats at © 2016 Bridgepoint Education, Inc. All rights reserved. Not for resale or redistribution. fin82797_04_c04_075-106.indd 80 3/24/16 1:41 PM The Meaning of Representation Section 4.2 435, which meant that as the population increased, each House member would represent a larger population within the same geographical area. As of the 2010 Census, each House member represents approximately 710,000 people. Gerrymandering District boundary lines are not necessarily fixed. States will draw district lines as they see fit, which may reflect state legislators’ desire to gerrymander to advance their own political interests. Gerrymandering occurs when a district is intentionally configured to maximize the influence of a specific party or class, often guaranteeing that districts remain safe for specific incumbents or parties. Massachusetts Governor Elbridge Gerry first employed this practice prior to the 1812 election in an effort to protect his political party representation in the state legislature. One district ended up looking like a salamander, and as a result the practice came to be known as gerrymandering (see Figure 4.1). One example of gerrymandering eventually resulted in a Supreme Court challenge. Following the 1990 census, the North Carolina General Assembly sought to enact a congressional plan with only one district with a majority of minority group members in 1991. This was known as majority-minority districting, often referred to as racial gerrymandering. The demographics of this northeast North Carolina area made it possible to create a small Figure 4.1: Gerrymander cartoon Black district by joining it with the predominantly Black precinct in DurThe concept of gerrymandering takes its name from an ham, North Carolina. The U.S. Justice 1812 Essex County, Massachusetts, district, which was Department opposed the plan, howintentionally drawn to benefit Governor Elbridge Gerry’s ever, because of insufficient minority political party. This cartoon of the district as a dragon satirized the practice. representation. At the time, the state was 22% African American; one predominantly African American district was deemed insufficient. Meanwhile, the State General Assembly, then controlled by Democrats, responded in early 1992 by creating a gerrymandered district. While Republicans had proposed several plans that would contain two minority districts, Democratic leaders in the Assembly selected one and modified it to be more favorable to their party. Several Republicans challenged the plan, claiming that it lacked both compactness and respect for community interests. In Shaw v. Reno (1993), the U.S. Supreme Court ruled that a racial gerrymander may, in some circumstances, violate the 14th Amendment’s © Gilbert Stuart/Corbis © 2016 Bridgepoint Education, Inc. All rights reserved. Not for resale or redistribution. fin82797_04_c04_075-106.indd 81 3/24/16 1:41 PM The Meaning of Representation Section 4.2 Equal Protection Clause. The Supreme Court did not rule the plan was invalid; rather, it sent the case back to the district court to determine whether the districts had been drawn on the basis of race and, if so, whether the racial gerrymander that resulted was “narrowly tailored to further a compelling governmental interest.” States still engage in gerrymandering to achieve certain results. Members of the U.S. House of Representatives and in state legislatures seek to run in districts in which they can expect to win because there are lopsided percentages of persons registered with their political party in that district. Additionally, the majority party in state legislatures will draw districts that create disadvantages for the minority party. The U.S. Supreme Court has upheld such arrangements on the grounds that, provided certain approaches are taken, such as ensuring that the districts respect community boundaries, then the 14th and 15th amendments are not deemed to have been violated. Figure 4.2 demonstrates the various shapes U.S. congressional districts can take. Figure 4.2: Map of U.S. congressional districts Many U.S. congressional districts are still elaborately drawn to benefit members of the party in power. From “Congressional Districts - 113th Congress,” by The National Map, 2014 (http://nationalmap.gov/small_scale/printable/images /pdf/congdist/pagecgd113_us-all.pdf). Reapportionment Because representation in the House is based on population size, the number of representatives from each state is not fixed. Rather, the House is required to reapportion, that is, redistribute, members based on changes in state populations. The Constitution specifically calls for a census to be taken every 10 years for the primary purpose of reapportioning the House of Representatives. This means that population shifts are reflected in congressional apportionment. For example, Texas gained four House seats following the 2010 Census, while Louisiana lost one House seat. In 2005, Hurricane Katrina resulted in thousands of New Orleans residents seeking refuge in Houston. Louisiana’s population shift to Texas contributed in part © 2016 Bridgepoint Education, Inc. All rights reserved. Not for resale or redistribution. fin82797_04_c04_075-106.indd 82 3/24/16 1:41 PM The Meaning of Representation Section 4.2 to Texas gaining representation and Louisiana losing representation. The Supreme Court affirmed that Congress must reapportion based on population shifts when it ruled in the 1962 case of Baker v. Carr because failing to do so effectually denied citizens equal representation. Models of Representation There are four basic models of representation: the delegate model, the trustee model, the oversight model, and the individual service model. Delegate Model and the Role of Public Opinion The delegate model holds that members of Congress are delegates of the people they serve, and, as such, whatever position Congress members take is the position that their constituents direct them to take. The delegate model is considered to be a form of agency representation, whereby members regard their constituents as their bosses with the power to hire or fire them. In order to know how to vote, members must stay in tune in with public opinion. As an example, a Congress member seeking direction on a policy vote may poll her district to gauge public opinion on the issue and vote accordingly. This model suggests that Congress members have no opinions of their own and they support whatever their constituents stand for. This raises the question of whether someone following the delegate model can both lead and follow at the same time. The case might be made, however, that a delegate is not a follower. Rather, delegates’ positions on the issues reflect their constituents’ values, which explains why they were elected. A second assumption of the delegate model is that the primary goal of Congress members is to be reelected. They can do this only if they satisfy the wishes of their constituents. In the early 1970s, political scientist David Mayhew put forth the electoral connection thesis, which has become the conventional wisdom about how Congress operates. According to this thesis, the primary goal of Congress members is to be elected and reelected, and the desires they express during a campaign to achieve certain legislative goals are the means to that end. In short, they will say or do whatever it takes to get elected, and they will never vote against the wishes of their constituents for fear that they will be voted out of office. In essence, David Mayhew suggests that Congress members, in serving their constituents, are serving their own self-interests. Based on this thesis, constituents’ wishes come before Congress members’ party loyalty. One might consider the vote on the Affordable Care Act to be a case where this thesis did not hold up. Most public opinion polls showed that most Americans opposed the legislation, but a majority in Congress voted for it anyway. Many of those who voted for it soon discovered that they faced a tough reelection challenge. If Congress members paid attention only to public opinion in their districts, then the health care bill might not have passed. The answer to this puzzle may lie in the fact that representation is a much more complicated process than has been described thus far, as is public opinion. On one level, those who voted for the bill may have believed that most people in their respective districts wanted it or were not so strongly opposed to it that they would deny them reelection. © 2016 Bridgepoint Education, Inc. All rights reserved. Not for resale or redistribution. fin82797_04_c04_075-106.indd 83 3/24/16 1:41 PM The Meaning of Representation Section 4.2 Trustee Model and Serving the Public Interest Following constituent opinion is not the only reason why Congress members would favor the Affordable Care Act. Some Congress members may have believed that this was an issue of the common good, and they voted for the bill because their constituents entrusted them to make decisions on their behalf. This approach to representation is embodied in the trustee model. The trustee model was initially formulated by British statesman Edmund Burke (1729–1797), who argued that representatives should vote based on what they believe is right. By electing members to a legislative body, Burke said, the people have entrusted them to effectively vote their conscience. Trustees, then, do not represent their constituents by following public opinion polls. They do what they think best serves the public interest. The trustees then stand before their constituents during the next campaign and justify their positions. If their constituents are satisfied, they are reelected. If the public is not satisfied, the trustees are voted out of office. In some respects, this model is undemocratic and implies a negative view of the people. Burke himself was a conservative who did not believe the people could be trusted. The representative should be a trustee, he argued, because the people lack the proper judgment. Columnist and television commentator George Will (1993) has considered Burke’s views within the context of term limits, arguing they would make the members less beholden to their constituents and more able to act like trustees. Oversight Model and Delegating Authority to the Executive Branch The Art Archive/SuperStock Edmund Burke formulated the trustee model of government. Burke believed that elected legislators were obligated to vote their conscience if there was a conflict with their constituents’ desires. When Congress holds the executive branch accountable, it represents the people and serves the common good by using the oversight model, where accountability is typically maintained through hearings. Congress holds the executive branch accountable by delegating authority to executive branch departments to perform various functions. For example, Article I, Section 8 gives to Congress the power to “raise and support armies.” Congress itself does not raise armies; those powers are delegated to the secretary of defense. If someone within the Department of Defense fails to fulfill Congress’s expectations, that person may be required to testify before Congress to explain his or her decision making, thus making the Department of Defense accountable to Congress. During the Iraq War, members of the U.S. Army, among others, abused and tortured detainees at Abu Ghraib prison in Iraq. The Senate Armed Services Committee held hearings investigating these human rights violations. Secretary of Defense Donald Rumsfeld was included among those who were called to testify. © 2016 Bridgepoint Education, Inc. All rights reserved. Not for resale or redistribution. fin82797_04_c04_075-106.indd 84 3/24/16 1:41 PM The Meaning of Representation Section 4.2 Article I, Section 1 of the Constitution says, “All legislative Powers herein granted shall be vested in a Congress of the United States.” Questions have arisen as to whether Article I, Section 1 deprives Congress of the power to delegate power to the executive branch. The constitutional provision also reflects John Locke’s view of a supreme legislative body. In his Second Treatise, Locke (1689/1988) says, This Legislative is not only the supreme power of the Commonwealth, but sacred and unalterable in the hands where the Community have once placed it; nor can any Edict of any Body else, in what Form soever conceived, or by what Power soever backed, have the force and obligation of a Law. He then notes that the supreme legislature cannot transfer more power than it has, nor can it transfer power that it does not have. Can Congress delegate its authority? One view suggests that it cannot. Another view suggests that, if authority is delegated, the regulations put in place by the executive branch may not fully reflect the legislature’s intent. Alternately, Congress’s delegation of authority to the executive branch is legitimate because the authority is limited to running a program that Congress has created. Oversight hearings are a regular occurrence in Congress, and usually few citizens pay attention to them. The Watergate hearings were an exception. On June 17, 1972, operatives associated with President Nixon’s Committee to Reelect the President broke into the Democratic National Committee headquarters at the Watergate apartment and office complex in Washington, D.C. The cover-up that followed the arrest of the © JP Laffont/Sygma/Corbis operatives led all the way to the In 1973, the Watergate Committee held hearings to president. Congress held special investigate Richard Nixon’s cover-up of the break-in investigative hearings that rivof the Democratic National Committee headquarters eted the nation for weeks. The in the Watergate office and apartment complex. Nixon House Judiciary Committee recbecame the first, and only, American president to ommended that the House of Represign right before the House of Representatives voted resentatives impeach President on impeachment. Nixon. The president resigned before impeachment could proceed. Watergate was an extreme case, but it nevertheless stands as an excellent example of Congress’s potential to represent the people through the oversight model. Congress’s power to impeach and remove the president from office is found in Article II, Section 4 of the U.S. Constitution. Public officials are removed upon impeachment and conviction for “Treason, Bribery or other High Crimes and Misdemeanors.” Impeachment is a critical check on executive power. Seeking impeachment carries political risk for Congress members. © 2016 Bridgepoint Education, Inc. All rights reserved. Not for resale or redistribution. fin82797_04_c04_075-106.indd 85 3/24/16 1:41 PM The Meaning of Representation Section 4.2 Impeachment and removal requires first that the House of Representatives vote to impose Articles of Impeachment. A majority impeachment vote once made is followed by a Senate trial. The chief justice of the U.S. Supreme Court oversees Senate impeachment trials of the president, but not other impeached public officials. A two-thirds Senate vote results in conviction and removal. Two presidents have been impeached and tried by the Senate. Andrew Johnson was acquitted by one vote in 1868, while Bill Clinton was acquitted by a wider margin in 1999. Impeachment strains relationships between the president and Congress. Andrew Johnson was impeached for violating the Tenure of Office Act because he removed the secretary of war from office, which angered his political opponents in Congress. The impeachment weakened Johnson’s political position, which may have contributed to his failure to secure his party’s nomination when seeking reelection in 1868. Clinton’s impeachment enhanced his popularity because it was viewed as politically motivated among congressional Republicans. Presidential impeachments may be rarely used because members of Congress may see themselves as undoing the will of the people in doing so. Service Model of Representation Finally, members of Congress represent their constituents by performing services for them. This is known as the service model of representation. As an example, a recently retired person who is having trouble receiving his first Social Security payment may contact his representative for help. All House members maintain offices in their home districts and in Washington, D.C., while senators maintain several offices throughout their respective states. Either a congressional staff member or the Congress member herself may contact the Social Security Administration, which can investigate the issue. To take another example, a researcher studying the history of funding prison building may contact a Congress member. The office will issue a request to the Congressional Research Service of the Library of Congress, and within a few weeks a report may be forwarded to the researcher. This type of representation is important because it is often the little things that win the support of constituents who see their lives improved as a result of a direct connection with the Congress member or his or her office staff. Such representation is very personal. Many constituents might not care much about congressional debates over foreign policy because they do not greatly affect their day-to-day lives, but this type of service does. This type of service can be highly beneficial, but there is a risk for abuse that can lead to corruption. For example, in 1989, five U.S. senators were accused of improperly intervening on behalf of Charles Keating, the chairman of Lincoln Savings and Loan. It was alleged that Keating gave $1.3 million in campaign contributions to Senators Alan Cranston of California, Dennis DeConcini and John McCain of Arizona, John Glenn of Ohio, and Donald Riegle of Michigan (the “Keating Five”). In turn, the senators were alleged to have used their influence to get bank regulators to overlook various banking violations. The Senate Ethics Committee cleared both Glenn and McCain of acting improperly, but they were criticized for poor judgment. The others were found to have acted improperly and did not seek reelection. Which Model of Representation Does Congress Follow? In summary, Congress follows all four models of representation, at times more than one model at a time. Members sometimes act as delegates and at other times act like trustees. © 2016 Bridgepoint Education, Inc. All rights reserved. Not for resale or redistribution. fin82797_04_c04_075-106.indd 86 3/24/16 1:41 PM Congressional Organization Section 4.3 Meanwhile, they all are involved in oversight and service. It really depends on the specific issue being considered, the amount of time between voting on the issue and the next election, and how Congress members view their role and impact on American politics. In considering various congressional roles, members of Congress are more likely to act as delegates on matters of domestic policy, because such bread-and-butter issues more directly affect their constituents’ lives and constituents are more likely to pay attention to domestic issues compared with foreign policy concerns, about which the public is less informed. The trustee model is more often followed in foreign affairs for these reasons. The four models of representation thus overlap with one another. Additionally, Congress members deliver benefits to their constituents by bringing various projects such as construction and government contracts to their districts and states. 4.3 Congressional Organization Congress is organized by both committees and party leadership, neither of which is specified in the Constitution. Most of the work of Congress is done in committees, while the majority party organizes each house of Congress and determines its leaders. Upon entering Congress, a newly elected member will seek committee assignments based on various factors. These factors may include committees that best serve their district or state (such as agricultural committees that will write policies that will greatly affect states whose economies depend more on agriculture than others); “money” committees, such as Ways and Means and Appropriations, which may be viewed as key committees that will serve as a critical base of power; or committees for which the Congress member has special expertise, such as doctors serving on health-related committees. Additionally, members may seek a committee that will best serve their constituency. As an example, persons seeking membership on the Armed Services Committee may have weapons systems manufacturers in their districts. These members hope to maintain support for the systems that a manufacturer makes, which will also maintain jobs for constituents. This is an example of delivering the goods back to the district. Some committees are viewed as more prestigious than others, such as those dealing with foreign policy, the military, or justice. Committee service may lead to the possibility of becoming a committee chair or party leader, such as speaker of the House or Senate majority leader. Members of Congress serve on multiple committees at the same time, although they may not chair more than one of the permanent policy committees (“standing committees,” discussed later in the chapter) at the same time. There is one leadership position in the Senate created to accommodate the constitutional mandate that the vice president break Senate ties. The constitutional requirement that there be two senators per state regardless of the state’s population leads to the possibility that there may be a tie in the Senate. The Framers assigned the task of breaking ties to the vice president, whom the Constitution names as president of the Senate. When the vice president is not present, the Senate’s longest-serving member is assigned the role of president pro-tempore. © 2016 Bridgepoint Education, Inc. All rights reserved. Not for resale or redistribution. fin82797_04_c04_075-106.indd 87 3/24/16 1:41 PM Congressional Organization Section 4.3 Congressional Committees Congress is organized by committees principally because it is the most efficient way to get its business done. Some Framers believed that in the spirit of democracy all members should be knowledgeable about and able to debate all the issues that come before Congress. This might have been possible in the early days of the republic, when Congress was relatively small and had fewer responsibilities. In those days, Congress was in session for less than 3 months each year, and members remained in their districts most of the time. The farmer who came to Congress to represent a rural Virginia district would still spend most of his year at home farming. Broad knowledge is no longer practical, as Congress deals with so many complex issues. Dividing Congress into committees allows specialization and division, which leads to greater efficiency. Those on a committee whose jurisdiction includes education may focus on education, while the Armed Services Committee deals with matters of defense. While specialization means that members can become experts on issues within their committee’s jurisdiction, specialization may also mean that other Associated Press/J. Scott Applewhite issues are largely ignored. The obvi- Vice President Joe Biden meets with congressional ous question is whether members of committee leaders to negotiate a deficit reduction plan. Congress can represent the people Congress is organized by committees because it is the when they are not fully knowledge- most efficient way to get things done. able about everything about which they are making decisions. Yet if they divide their time among all the issues so that they can know something about everything, they may end up having little depth of knowledge across these issues. In practice, members of Congress may not fully understand legislation on which they are expected to vote. They may review summaries that have been prepared by staff members. Parties in both the House and the Senate have used different methods for selecting committee members. For instance, from 1911 to 1974, House Democrats relied on Democratic members of the Ways and Means Committee to recommend assignments. Beginning in 1975, the Democrats gave this function to the Steering and Policy Committee, chaired by the speaker, when they were in the majority. Republicans in the House have a Committee on Committees that is composed of one member from every state that has at least one Republican in the House. This committee is chaired by the Republican floor leader. On the Senate side, Democrats have a steering committee, appointed by the floor leader, that makes appointments. The steering committee is composed of senior party members, who also serve as committee chairs. Senate Republicans have a Committee on Committees that makes initial assignments also based on seniority. The party caucus must approve all committee assignment recommendations. © 2016 Bridgepoint Education, Inc. All rights reserved. Not for resale or redistribution. fin82797_04_c04_075-106.indd 88 3/24/16 1:41 PM Congressional Organization Section 4.3 Types of Committees There are four types of committees: standing committees, select committees, special committees, and joint committees. Power is located in committees and is where legislation is crafted. Legislative research is also completed at the committee level. And testimony about the impact a bill may have is communicated in committee, such as through hearings and written reports. Standing committees exist permanently from one Congress to the next and deal with a variety of issues in a given subject area. An example of a standing committee is the House Education and Workforce Committee, which may deal with educational achievement, job training, and the minimum wage. Because these issues vary so widely, they are often divided into subcommittees. A subcommittee may deal specifically with job training while another deals with minimum wage. © Reuters/Corbis Joint committees are made up of members of both houses of Congress. A select committee is established to address a specific purpose, such as a particular issue that needs to be addressed or that is in a subject area that does not easily fit into a standing committee. Once the issue has been addressed, the committee can be disbanded, or if the issue is expected to be ongoing, the select committee can be transformed into a standing committee. A joint committee is made up of members of both houses of Congress. The most common joint committee is the conference committee. Bills passed in each chamber on the same issue must be examined by a conference committee to ensure that they are the same because the Constitution requires that Congress present bills to the president that are jointly agreed upon by both houses. Conference committees also negotiate compromises if there are differences between the bills passed by each chamber. A joint committee may also be convened to carry out congressional investigations into executive branch abuses of power or to discuss business the two houses have in common, such as managing common facilities or arranging celebrations and memorials. Table 4.1 lists the standing and joint committees in Congress. © 2016 Bridgepoint Education, Inc. All rights reserved. Not for resale or redistribution. fin82797_04_c04_075-106.indd 89 3/24/16 1:41 PM Congressional Organization Section 4.3 Table 4.1: Committees of the 111th Congress (2015–2017) Standing committees in the U.S. House of Representatives Standing committees in the U.S. Senate Agriculture Appropriations Armed Services Budget Education and the Workforce Energy and Commerce Ethics Financial Services 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 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 Finance Foreign Relations Health, Education, Labor, and Pensions Homeland Security and Governmental Affairs Judiciary Rules and Administration Small Business and Entrepreneurship Veterans’ Affairs Joint committees Joint Economic Committee Joint Committee on the Library Joint Committee on Printing Joint Committee on Taxation Data from “Committees,” by U.S. Senate, n.d. (http://www.senate.gov/committees/committees_home.htm) and “Committees,” by U.S. House of Representatives, by U.S. House of Representatives, n.d. (http://www.house.gov/committees/). Committee Chairs Committee chairs are normally assigned based on seniority. Before 1974, those in Congress the longest often found themselves chairing their choice of committee. This practice contributed to shrinking opportunities for newcomers to become key committee chairs. On the heels of Watergate in 1974, the newly elected freshman members staged a revolt and demanded that these rules be relaxed. In the Senate, the seniority system meant that the Southern states held a disproportionate amount of power. Until the 1970s, the South was essentially a one-party system, as nearly all Southern senators were Democrats. It was quite challenging to accomplish anything in the Senate without the approval of the Southern senators. Leadership Congress is also organized by party leadership. The political party with the most seats in a chamber of Congress has earned the power to organize it. The speaker of the House of Representatives, the House leader, is elected by the majority party. The speaker is the third in line of succession to be president. Working directly below the speaker is the majority leader, who supervises lieutenants known as whips, or floor leaders. Whips gauge support for specific bills among members of their party. They also attempt to enforce party discipline so that the rank-and-file members, or members of Congress who do not hold leadership positions, vote © 2016 Bridgepoint Education, Inc. All rights reserved. Not for resale or redistribution. fin82797_04_c04_075-106.indd 90 3/24/16 1:41 PM Congressional Organization Section 4.3 with the party’s political agenda. On the Senate side, key leadership positions include the majority leader and whips, who perform the same basic functions as their counterparts in the House. Meanwhile, the minority party in both chambers also has leadership positions. In both chambers, there are minority leaders who supervise minority whips. How does the party leadership enforce discipline? It comes back to committees. The majority party selects the standing and select committee chairs in Congress (each party selects members for its own special committees). The speaker and majority leader control the Rules Committee while they control other high-profile appointments. This means that party loyalists can be rewarded with desirable committee assignments. Those failing to “toe the party line” can be punished with less desirable committee assignments, which may include denying more senior Congress members chair assignments that their seniority might otherwise earn them. Staff Members of Congress are each assigned staff members to support them in fulfilling their responsibilities. Congressional staff members play a significant role in the overall operations of Congress and, more specifically, in the representative function. Each member has a sizable personal staff, while committees are also assigned staff. Prior to World War II, congressional staff was not very large (see Figure 4.3). Just after the war, personal and committee staff together numbered approximately 2,000. Those numbers grew steadily over subsequent years, and by the mid-1980s, 18,000 individuals were working on either a personal or a committee staff in Congress. Figure 4.3: Number of personal staff members in Congress, 1930–2010 Since World War II, the number of personal staff members in Congress has increased substantially. By 2010, with 4,067 personal staff for 100 senators, each member of the Senate had an average of 40 personal staff. Data from Vital Statistics on Congress (Table 5-2), by N. J. Ornstein, T. E. Mann, M. J. Malbin, A. Rugg, & R. Wakeman, 2014, Washington D.C.: The Brookings Institution. © 2016 Bridgepoint Education, Inc. All rights reserved. Not for resale or redistribution. fin82797_04_c04_075-106.indd 91 3/24/16 1:41 PM Congressional Organization Section 4.3 Staff members can have a considerable impact on legislation. As members of Congress find themselves stretched thin over a variety of issues, they rely on their staffs to study the issues and provide them with essential information. Staff members can increase their legislative impact if they are willing to aggressively advise members and challenge them on their positions. Moreover, they can increase their influence by timing the release of critical information that a member might need to make an informed vote on a measure. Members tend to rely on personal staff members for legislative assistance when addressing new problems, while recently elected members are likely to rely more on their staffs compared with more senior members because they are less experienced and expert in various areas. Committee staff members are also vital to the legislative process. They organize hearings and conduct research on topics relevant to committee investigations. They draft bills and amendments, prepare the language of committee reports, and assist members in preparing for floor debate, during which bills are discussed and argued over in each chamber before being voted on by the full House or Senate. Committee staff members also serve as the liaisons between Congress and both interest groups and the executive branch. The persons testifying at hearings will often include executive branch officials and interest group representatives. Executive branch officials will often speak to issues about a proposed bill, such as to ensure that sufficient funding is put in place for implementation, while an interest group will testify as to the need for legislation or to convince Congress to shape proposed legislation in the direction supported by the interest group. When executive branch officials and interest groups testify before Congress, they are taking part in iron triangles, which are discussed in Chapter 6. Committee staff members perform four principal functions, focusing on intelligence/information gathering, integration, innovation, and influence. They provide intelligence by collecting and filtering information before it is shared with committee members. They integrate by working closely with appropriate committee staff in the other chamber. They innovate by looking for new problems and proposing solutions to them. Finally, they have influence because of the vital tasks they perform and the trust they build between themselves and members of Congress. Associated Press/Charles Dharapak Congressional staff members gather outside the Capitol. Staff members play numerous important roles in the overall functions of both houses. © 2016 Bridgepoint Education, Inc. All rights reserved. Not for resale or redistribution. fin82797_04_c04_075-106.indd 92 3/24/16 1:41 PM Congressional Organization Section 4.3 Organization by Constituency Versus Organization by Party A key question is whether it is more important for Congress to be organized around serving constituents or serving party interests. The congressional committee structure is designed to serve primarily constituents, while the leadership structure serves party interests. For members, it can be difficult to manage the demands placed on them—is it in their constituents’ best interest for them to pursue committee leadership or chamber leadership? While the speaker of the House and Senate majority leader may be more powerful and prestigious positions than committee chairs, it can take years to work one’s way up to the top, and most will not secure one of those positions. As chair of a key committee, a member can build a power base and be effective. From 1987 to 1989, Democratic Senator Robert Byrd of West Virginia served as Senate majority leader. He resigned that leadership post to become the Appropriations Committee chair, where he ensured a flow of federal dollars into West Virginia to benefit his constituents. Although leadership positions may be highly visible, the people who hold them may be perceived as focused on national issues at the expense of local concerns, and constituents may feel neglected. Whether the perception is true or not, these highly visible congressional leaders may not have as much time to devote to their districts. Democratic South Dakota Senator Tom Daschle, who served as majority leader from 2001 to 2003, was defeated when he ran for reelection in 2004 largely due to a well-financed campaign by his opponent, who accused him of being out of touch with his constituents. In fact, Daschle was the first Senate party leader to lose reelection since 1952. A similar campaign helped defeat former Democratic Speaker of the House Tom Foley in 1994, when George Nethercutt beat him 51% to 49%. In both cases, the challengers were advantaged, as they had more time to be in the district campaigning. Efficiency Versus Democracy Can a committee structure that encourages specialization and efficiency really be democratic? There would appear to be an inherent contradiction here. The entire constitutional structure, as noted in Chapter 2, was intended to be anything but efficient so as to prevent Congress from encroaching upon individual rights. One tenet of democracy is for the people to be represented by grassroots-level citizen-politicians, but the committee structure and the reliance on specialization and division of labor has given rise to the professional politician. The effect is to create distance between Congress members and the people they represent. Moreover, a stronger democracy may be achieved if representatives are familiar with all the matters before them. But Congress has been overburdened with so much work in recent decades that many members struggle to keep up. Put differently, the institution is so large and the business before it so great that without some semblance of efficiency, there would be no functioning government at all. © 2016 Bridgepoint Education, Inc. All rights reserved. Not for resale or redistribution. fin82797_04_c04_075-106.indd 93 3/24/16 1:41 PM Policymaking and Broad Representation Section 4.4 4.4 Policymaking and Broad Representation Policymaking transforms ideas into laws. It is also through policymaking that diverse positions are represented in the U.S. Congress. On one level, the process can be thought of as a flow diagram where bills are introduced, debated in committee, debated further in the full chambers of each house, and then sent to the president for signature. However, the process is considerably more political. How bills move through the process is a question of who pushes them, how much power that person has, and what deals or agreements that person can make to gain support for them. If we return to the premise of the delegate model of representation, members of Congress are likely to support a bill if there is something in it for their constituents. This does not mean that they expect the same from every bill, but if they support a bill for a program that is not important to their state or district, they will expect others to, in turn, support bills that are. Each member, in other words, expects reciprocity. This is called logrolling, where members support each other’s bills. How a Bill Becomes a Law As Figure 4.4 shows, a bill is typically introduced by a sponsor with several possible co-­ sponsors, in each chamber of Congress. On the House side, a bill is introduced by a representative and then referred to the appropriate committee for action. As an example, the Affordable Care Act in its initial form was referred to the House Ways and Means Committee. A bill is sometimes divided into its component parts and referred to different subcommittees. The component dealing with financing may be sent to a financing subcommittee, while the component focusing on expanding coverage may be sent to a different subcommittee. For a bill to become law, each component must be passed by its respective subcommittee and referred back to the full committee. The full committee then debates and votes on the bill. If it clears the committee, it is sent to the House floor for debate and a vote. © 2016 Bridgepoint Education, Inc. All rights reserved. Not for resale or redistribution. fin82797_04_c04_075-106.indd 94 3/24/16 1:41 PM Policymaking and Broad Representation Section 4.4 Figure 4.4: How a bill becomes a law The path a bill must take to become law looks straightforward, but the process is actually quite political. Data from “How Laws Are Made,” by Office of the Clerk of the U.S. House of Representatives, n.d. (http://kids.clerk.house.gov/gradeschool/lesson.html?intID=17). Meanwhile, the same process occurs in the Senate. Once the Senate passes its version of the bill, the two versions must be reconciled into one bill for the president to sign. Both chambers appoint representatives to serve on a conference committee that is tasked with negotiating compromise between the House and Senate versions of the bill. That committee then sends the compromise version of the bill back to both chambers of Congress for another round of debate and then a vote. The bill can be killed at any step in this process. A bill that fails to make it out of a committee, for instance, will not be voted on in the full chamber. © 2016 Bridgepoint Education, Inc. All rights reserved. Not for resale or redistribution. fin82797_04_c04_075-106.indd 95 3/24/16 1:41 PM Policymaking and Broad Representation Section 4.4 Senate Filibusters Each chamber has the right to establish its own rules for debate. In the House, where there are more members, members might be given no more than 5 minutes to speak on a matter on the floor. The Senate, however, has more elaborate rules, and a Senate debate can be endless. The Senate also allows its members to engage in the filibuster, a procedure under which individual senators can extend debate indefinitely and prevent action on a bill. Filibusters prevent anyone from having the floor to speak, including introducing a motion to vote, if the filibustering senator has not yielded the floor. As part of a filibuster, a senator can yield to a colleague who will continue where the filibustering senator left off. An old-style filibuster involved a senator talking for hours until everyone dropped from exhaustion. South Carolina Senator Strom Thurmond staged the nation’s longest one-person filibuster, in opposition to the Civil Rights Act of 1957. Thurmond was a longtime segregationist who ran as a States’ Rights Democrat (Dixiecrat) candidate for president in 1948, with the goal of preserving the Southern segregationist way of life. Thurmond’s filibuster, which lasted for more than 24 hours, began with his reading every state’s election laws in alphabetical order and continued with reciting the Declaration of Independence, the Bill of Rights, and Washington’s Farewell Address. In the end, though, the Civil Rights bill passed in the House by a vote of 270 to 97 and in the Senate by a vote of 60 to 15. © Bettmann/Corbis Senator Strom Thurmond engaged in a 24-hourand-18-minute filibuster in 1957 to prevent passage of a Civil Rights Act (his efforts failed, as the bill ultimately passed). In this photograph, he is approached by reporters just after ending his floor time. Current Senate rules permit another type of filibuster. Each bill is assumed to be under filibuster, meaning it cannot advance to the Senate floor for debate until a cloture vote—­literally, a vote to close it off—has occurred. Current Senate rules require that a minimum of 60 senators vote for cloture. This means that a Senate divided along party lines, and where the majority party can never achieve the required 60 votes, may never pass any legislation. As an example, environmental legislation sought by President Obama and passed by the House in 2009 was effectively declared dead in the Senate because it never achieved its requisite 60 votes to achieve cloture. Chamber leaders usually will not seek a floor vote unless they believe they have the necessary number of votes, as measured by the whips, to pass it. © 2016 Bridgepoint Education, Inc. All rights reserved. Not for resale or redistribution. fin82797_04_c04_075-106.indd 96 3/24/16 1:41 PM Policymaking and Broad Representation Section 4.4 In 2013, the 60-vote requirement for cloture was modified for presidential appointments. Filibusters may be broken with a simple majority if the issue being delayed with a filibuster is a confirmation vote. However, the 60-vote requirement to end a filibuster still stands for proposed legislation. Bringing a Measure to the Floor To gain the consensus necessary to bring a measure to the floor, leaders often use the following tools: pork barrel politics, vote trading, and coalition building. Pork Barrel Politics A major part of representation involves bringing benefits back to one’s district or state, which is often referred to as pork barrel politics. Until 2011, the congressional leadership could buy another member’s vote with the promise of support for a project that could offer substantial benefit to the member’s district. Sometimes this pork is referred to as an earmark, which was a legislative provision directing funds to be spent on approved projects. Earmarks that would target projects in House members’ districts or senators’ states were placed into the budget. They also exempted certain projects or enterprises from taxes and other fees. Critics of earmarks, including Congress members, claim that earmarks are wasteful spending. The ban on earmarks has not changed the practice, however. Rather, the way that the monies are now directed to specific states or districts is by Congress allocating dollars to the appropriate federal agency for the purpose of directing those monies into those states or districts. Associated Press/David Duprey Congressional leaders are not the only politicians who offer pork. The president may also support various projects for specific members in exchange for their support of his or her goals. Moreover, many members of Congress run on platforms outlining what they can do for their states, such as attracting large employers and industries to the states. Many people decry the idea of pork barrel spending but do not mind when their own Congress members secure federal programs and projects for their areas. Vote Trading Vote trading involves members exchanging votes with one another. Representative X will promise to vote for a bill supported by Representative Y if Representative Y will in turn vote for Representative X’s bill. For instance, Representative X’s bill is for increased defense spending that © 2016 Bridgepoint Education, Inc. All rights reserved. Not for resale or redistribution. fin82797_04_c04_075-106.indd 97 3/24/16 1:41 PM Congress and Executive Accountability Section 4.5 will benefit Representative X’s home district, and Representative Y’s bill is for a new literacy program that will benefit Representative Y’s constituents. In all likelihood, Representative Y has no real interest in defense issues and Representative X has no real interest in literacy programs, but both are willing to support each other to represent their own constituents effectively. It is often through this process of logrolling that Congress gets things done. Coalition Building and Broad Representation Congress works through coalition building and consensus. Coalitions are usually built through pork barrel politics and logrolling. Individual members of Congress trade votes with each other, and committee chairs trade votes with other chairs. In a technical sense, a majority vote in both chambers of Congress is usually enough to pass legislation, but the vote is really only the final act of an otherwise long and drawn-out process. Most of the time, it is also anticlimactic; how members are going to vote becomes apparent along the way because of the work that has gone into building a coalition. Coalitions must be formed by those who spearhead legislation. It is the Madisonian formula in action. When each constituency gets what is important to it, each has received what political scientist Arthur Maass (1983) has called broad-based representation. Ultimately, everyone’s interests and needs are fulfilled and legislation is rarely accomplished quickly. Policymaking by Consensus and Partisan Mutual Adjustment In an ideal world, Congress members would vote for a measure because it is the right thing to do and a compelling argument has been made in its favor. But that is not the only reality. Members often find that they must compromise on their positions to build consensus. They vote for measures because they have bargained with one another while a variety of deals have been made throughout the process. Political scientist Charles Lindblom (1965) calls this partisan mutual adjustment. Members build a consensus that accomplishes some but not all of what they want because they must adjust their expectations and compromise to get enough votes. The extension of the Bush tax cuts is a case in point. Those who stand on principle will not compromise their positions. But Congress members who seek to represent their constituencies feel that it is better to have some tax cuts than none at all. By accomplishing something, even just a very small step, a foundation has been placed upon which more blocks can be set in the future. Lindblom calls this process of taking small steps incrementalism. If an extension of the tax cuts represents a step, it can be built on in the future through perhaps more and longer extensions until they are made permanent at some point. This again shows the genius of Madison’s design, because Congress cannot undertake sweeping action that could encroach upon citizens’ liberties if congressional members are able to make only small changes as part of a larger process. An incremental process is checks and balances in action and thus in the end represents the public well. 4.5 Congress and Executive Accountability As we noted earlier when discussing the oversight model, an important representative function of Congress is holding the executive branch accountable. Its chief tools for doing this are © 2016 Bridgepoint Education, Inc. All rights reserved. Not for resale or redistribution. fin82797_04_c04_075-106.indd 98 3/24/16 1:41 PM Congress and Executive Accountability Section 4.5 hearings, overriding presidential vetoes, and the legislative veto, which was utilized between 1930 and 1980 until it was declared unconstitutional in 1983. Hearings Hearings occur when members of Congress, usually in committee, request the appearance and testimony of executive branch officials, who have little choice but to comply. (Failure to respond to a congressional subpoena can result in arrest and jail time.) During these hearings, officials are usually asked to report on what their agency or department has been doing and explain any new programs that have been implemented. Associated Press/Susan Walsh Former Defense Secretary Robert Gates, who served from 2006 to 2011, speaks with members of the Senate Armed Services Committee after testifying before them. Requesting the testimony of members of the executive branch is one way that Congress ensures executive accountability to the American people. For instance, both the House and Senate Foreign Affairs committees may hear testimony from the secretaries of state and defense to determine whether the money they have appropriated for diplomatic and military action is well spent. Or they may want to know whether certain policies are accomplishing their intended results. As a result of these hearings, Congress may either write new legislation to refocus a policy or increase or reduce funding. Testimony occurs in two forms. First, witnesses provide written testimony prior to the hearing. Second, they deliver an oral summary of their written testimony, usually in the form of an opening statement. After that, the floor is opened to questioning from members, who often read from questions prepared by their staffs. Because these hearings are often televised, they effectively constitute an exercise in public accountability. By forcing executive branch officials to publicly justify their actions, Congress holds the executive branch accountable to the American public. Overriding Presidential Vetoes The Constitution specifically gives veto power to the president as a check on the legislative branch. But Congress can override the president’s veto with a two-thirds vote of all the members in both chambers. The threshold is higher than would be the case for normal passage of a bill, which requires a simple majority of those who cast a vote that day. © 2016 Bridgepoint Education, Inc. All rights reserved. Not for resale or redistribution. fin82797_04_c04_075-106.indd 99 3/24/16 1:42 PM Congress and Elections Veto overrides do not happen often, but when they do, Congress can claim that it has achieved supremacy over the executive and in so doing has added to its representative function. Arguably, if officials in the executive branch know that an override is possible, they will think seriously about whether a veto is a good option. At the very least, the threat of a veto override may force the president to justify his or her position. Because an override is difficult to achieve (only 7% of all vetoes have been overridden), it is not wise to threaten one unless the leadership is sure that it has lined up the needed votes. Section 4.6 Associated Press/Wilfredo Lee President Clinton signs his veto of a temporary borrowing bill in 1995. Congress could not secure the required two-thirds majority to override it. Legislative Veto The legislative veto was another tool that Congress used to control the executive branch. Technically, the Constitution provides only for a presidential veto, but Congress had inferred the right to its own veto as necessary to fulfill its representative function. The idea is really a logical outgrowth of congressional delegations of authority. When Congress passes a law, it leaves the implementation of the law to the executive branch. Then, as an aspect of its oversight function, Congress calls officials to testify about what they have been doing. If Congress decides that it does not like how the law has been implemented, it can pass a resolution instructing them to cease and desist. This is called a legislative veto, and it was found unconstitutional in Immigration and Naturalization Service v. Chadha (1983) because it violated the separation of powers. 4.6 Congress and Elections Congressional elections, which occur every 2 years, present opportunities to change the government. A midterm election, which falls in the middle of the president’s 4-year term, provides a forum for voters to register opposition or support of the president’s policies and performance. It is not uncommon for the president’s party to lose seats in Congress during these contests. The 1994 midterm election is a case in point. Following great dissatisfaction with the Democratic Party’s performance during the first 2 years of Bill Clinton’s presidency, the voters elected Republican majorities in both houses for the first time since 1952. Many observers were quick to label it a repudiation of Clinton himself, but Clinton still won reelection 2 years later. This suggests that the midterm election was more of a repudiation of the party controlling Congress than of the president. © 2016 Bridgepoint Education, Inc. All rights reserved. Not for resale or redistribution. fin82797_04_c04_075-106.indd 100 3/24/16 1:42 PM Congress and Elections Section 4.6 Clinton’s 1992 presidential campaign included a health care reform platform, which he failed to deliver. Much of that failure stemmed from Democratic opposition in Congress. At the same time, many incumbent Democrats were embroiled in what came to be known as the House Banking Scandal, when it was discovered that lawmakers were overdrawing their congressional checking accounts without penalty. The 1994 midterm election giving Republicans majorities in both houses of Congress may have been due, in part, to public anger over the scandal and to the belief that the Democrats were wasting their time by not working with the president to get things done. More recently, in both midterm elections of the Obama presidency, the Democrats experienced meaningful losses. In 2010, Democrats lost their majority in the U.S. House of Representatives, while Republicans in the Senate narrowed their minority by six. Republicans gained 64 seats in the U.S. House of Representatives, which shifted their membership from 178 to 242. In 2014, the Democrats lost 10 seats, lost their majority party status in the Senate, and lost 13 more seats in the House of Representatives. Arguably, Barack Obama’s low approval ratings contributed to these staggering losses. In one sense, this creates gridlock whereby nothing gets done. But in another, it is the very meaning of checks and balances. The Role of Money in Congressional Elections Running for Congress is an expensive proposition (see Figure 4.5). On average, running for a House seat costs around $1 million, and Senate campaigns can cost considerably more. In a large state such as California, for instance, a candidate might easily spend as much as $40 million. Figure 4.5: Cost of winning an election, 1986–2014 (in nominal dollars) Running for Congress is an expensive proposition. *John Corzine (D-NJ) spent $63,209,506 and Hillary Rodham Clinton (D-NY) spent $29,941,194. Remaining Senate winners in 2000 spent an average of $4,737,365. Data from “Table 3-1 The Cost of Winning an Election, 1986-2014 (in nominal and 2014 dollars),” by The Campaign Finance Institute, 2015 (http://www.cfinst.org/pdf/vital/VitalStats_t1.pdf). © 2016 Bridgepoint Education, Inc. All rights reserved. Not for resale or redistribution. fin82797_04_c04_075-106.indd 101 3/24/16 1:42 PM  This means that those running for Congress must raise large sums of money. Once a House election has happened, the next election is only 2 years away, so much of a member’s time is spent raising funds and campaigning. By law, an individual is not permitted to give more than $2,600 per campaign (note that primaries, runoffs, and general elections are separate campaigns), but political action committees (PACs) can give up to $5,000 per campaign. Many incumbents expend legislative effort trying to please an array of interest groups who are then expected to make large contributions favoring the incumbent’s reelection campaign. The nature of campaign finance may effectively make Congress beholden to special interests and thus call into question the meaning of representation. At the same time, congressional elections also serve to keep members accountable to their constituents. The nature of campaign finance favors incumbency. Current members tend to enjoy widespread name recognition. More often than not, they do not need to put forth as great a financial effort to make themselves known to the voting public as do challengers. This does not mean that incumbents generally spend less than challengers do on elections. In fact, they spend much more. Congress members also enjoy the franking privilege that comes with holding office. Franking is using taxpayer funds to mail flyers and other materials to Associated Press/Eric Risberg help educate one’s constituents as Politicians must raise large sums of money to fund to one’s positions and accomplish- their congressional campaigns. ments. A third significant advantage of incumbency is that campaign contributors are more likely to give money to someone they know than to a challenger with whom they may not be familiar or who may lack a legislative record. Whom Does Congress Ultimately Represent? The way elections in the United States are financed raises questions as to who is actually being represented. Is it the constituents who vote or the moneyed interests that contribute to campaigns? Additional concerns emerged in 2010 when the U.S. Supreme Court, in a divided 5–4 decision in Citizens United v. the Federal Election Commission, ruled that, among other considerations, the First Amendment protects the political speech of corporations and unions with regard to the funding of political broadcasts. Two thirds of the public opposed the Court’s position soon after the decision was made. The reality is that Congress members cannot represent their constituents if they cannot get elected. Because attaining leadership positions, even committee leadership positions, is based on seniority, members must be reelected multiple times to become senior to their congressional peers. It might seem bizarre that for Representative X to serve, Representative X first needs to satisfy financial contributors. © 2016 Bridgepoint Education, Inc. All rights reserved. Not for resale or redistribution. fin82797_04_c04_075-106.indd 102 3/24/16 1:42 PM Summary and Resources Nonetheless, if Representative X is perceived as catering to moneyed interests, Representative X can deflect criticism by delivering the pork and performing the essential service work. The Role of Technology When the Constitution was drafted in the late 1700s, the only way for members of Congress to communicate with constituents was through letters or in person. It could take a long time for a letter to arrive, and the travel difficulties between a member’s district and the Capitol made visits infrequent. Today, technological advances in transportation and communications have made it much easier for members to go back and forth between their districts and the Capitol, and to regularly communicate with their constituents. Each member maintains a website where constituents can learn what is going on in Congress and where their representative stands on an issue. Congress as an institution also has websites that the public can access to get information about pending legislation. In the other direction, technology has made it easier for members of Congress to obtain public opinion about particular issues, thereby making it easier to represent the public’s wishes. Technology also plays an increasing role in elections. Through the Internet and email, members of Congress can reach out to the general population to raise funds. Reaching a broader grassroots fundraising base through the Internet may weaken the hold of big, moneyed interest groups, and it can potentially make Congress more representative. Also, the prospect of a more informed citizenry pressures Congress to be more transparent. At a minimum, members are more accountable; they can hide behind public ignorance far less than in the past. Technology may raise a larger, more philosophical question: If the public can become informed about public affairs through the use of the Internet, do citizens need Congress to represent them at all? Might the institution become obsolete? Remember, one of the reasons for representative government is that, given the population size and geographic distances, direct democracy where everybody would come to debate issues and vote on them was impractical. But is this still the case if members of the voting public can debate and, ultimately, vote over the Internet? Summary and Resources Chapter Summary Congress derives its formal authority from Article I of the Constitution, which specifically grants it the power of the purse, the power to declare war, and the authority to do whatever is necessary and proper to fulfill its expressly stated powers. On the basis of this Necessary and Proper Clause, it infers a range of implied powers that it considers essential to its primary function of representation. Although representation is essential to the role of Congress, it holds different meanings. Members can represent by serving as delegates whereby they take direction from their constituents on how to vote in Congress. They can represent by serving as trustees whereby they vote on the basis of what they believe is right and what they consider to be the public interest. Or they © 2016 Bridgepoint Education, Inc. All rights reserved. Not for resale or redistribution. fin82797_04_c04_075-106.indd 103 3/24/16 1:42 PM Summary and Resources can represent by holding the executive branch accountable through the oversight function. Depending on the issue, members will represent through a combination of one or more of these. By the nature of Congress’s organization and the process by which laws are passed and policy is made, Congress members represent in a very broad fashion. Congress is divided into committees because this is an efficient way to consider potential policy. Members gravitate to the committees that best serve the interests of their constituents. Through the process of trading votes with one another and by delivering pork to their districts, constituents are represented. Coalitions are necessary to achieve the required consensus to pass legislation. Congress holds the executive branch accountable through hearings, the threat of impeachment, and its power to override presidential vetoes. What these tools have in common is that they persuade members of the executive branch to publicly justify their actions. To a large extent, then, everything that Congress does serves its primary representation function. Even the nature of congressional elections serves the representation function, as the need to be reelected forces members of Congress to raise large sums of money. While this might appear to cater to moneyed interests, it often allows members to be reelected and thereby fulfill their representative function. Key Ideas to Remember • • • • • • • Article I of the Constitution establishes the enumerated powers of Congress, but Congress has been able to assume power beyond those powers through the Necessary and Proper Clause and by showing a relationship between a legislative action and the Commerce Clause. One principal power of Congress is the power of the purse, which means that all expenditures of money must be authorized by Congress. This also means that Congress can check the executive branch by cutting off funds. “Representation” means different things to different people. On some occasions, members of Congress act as delegates, where they do as their constituents instruct them to do. But on other occasions, they act as trustees, where they vote according to what they believe is right. One theory of representation holds that the first priority of Congress is to be reelected, which persuades members to vote on issues according to the wishes of the people. But representing a district might also entail things such as bringing money back to their districts and states, and trading votes with other members of Congress to obtain support for locally important programs. Another theory of representation holds that Congress represents the people by holding the executive branch accountable to the public through its legislative oversight function. Congress is organized into specialized committees, and this allows for greater efficiency because members of committees become experts in legislative areas that are important to their constituents. How a bill becomes law is a process that involves politics, making deals, trading votes, and building coalitions of support. Building coalitions allows members of Congress to achieve broad representation of the public. © 2016 Bridgepoint Education, Inc. All rights reserved. Not for resale or redistribution. fin82797_04_c04_075-106.indd 104 3/24/16 1:42 PM Summary and Resources Questions to Consider 1. What is the power of the purse? 2. Do implied powers through the Necessary and Proper Clause give too much power to Congress? Why or why not? 3. What are the ways that Congress can represent the American people, and which one best speaks to the nature of the U.S. Congress? 4. Is the way Congress is organized necessarily the best way? 5. Given what you now know about how policy is made in Congress, was there any other way the votes for extending the Bush tax cuts could have been obtained? 6. How might the outcome have been different if members of Congress were not so reliant on private donations and the need to raise huge sums of money for reelection? Key Terms agency representation When members of Congress regard their constituents as their bosses with the power to hire or fire them. apportionment Distribution of congressional members in a state. cloture The vote of 60 to cut off filibuster. conference committee A joint committee made up of members of both the House and the Senate; the goal of this committee is to work out a compromise version of a bill that can go to the president for signature. congressional district The geographical area represented by members of the House of Representatives. delegate model When members represent their constituents by doing what the constituents want. earmark Legislative provision directing that funds be spent on specific projects. electoral connection thesis The argument that the primary goal of members of Congress is to get reelected. Equal Protection Clause Included in the 14th Amendment, the Equal Protection Clause guarantees to U.S. citizens that no state may deny them their rights as citizens of the United States. filibuster A procedure by which members of the Senate can extend debate indefinitely, thereby preventing action on a bill. floor debate During which bills are discussed and argued over on the House or Senate floor once they are voted out of committee and before they are voted on by the full House or Senate. franking privilege The use of congressional or public funds to mail information out to voters. gerrymandering The drawing of congressional district boundary lines to give a group undue influence or to protect a member’s seat. incrementalism The idea that Congress can make only small changes at a time and therefore is less likely to take sweeping action that might infringe on individual liberty. © 2016 Bridgepoint Education, Inc. All rights reserved. Not for resale or redistribution. fin82797_04_c04_075-106.indd 105 3/24/16 1:42 PM Summary and Resources joint committee Congressional committee made up of members from both the Senate and the House of Representatives. legislative veto When Congress orders the executive branch to cease and desist the implementation of a law because it does not approve of how the law has been implemented. logrolling The trading of votes. majority party The political party with the most seats in a legislative chamber. Necessary and Proper Clause Article I, Section 8, Clause 18 of the U.S. Constitution, which allows Congress to do what it believes is “necessary and proper” to carry out its enumerated powers. Also known as “implied powers.” oversight model The idea that Congress holds the executive branch accountable through investigative or oversight hearings. partisan mutual adjustment The process of reaching a consensus through bargaining and compromise. Further Reading pork barrel politics When members of Congress bring projects or other goods back to their districts. rank-and-file Describes members of Congress who do not hold leadership positions. select committee A committee that is set up for a special purpose. service model When Congress members represent their constituents by performing services for them on an individual level. special committee A committee in one house of Congress that is composed of members of one party only. standing committee A permanent committee. subcommittee A smaller committee within a larger committee that might take up a specific aspect of a bill. trustee model When members represent their constituents by doing what the members think is right. whips Members of congressional party leadership who work the floors and marshal support. Baker, R. K. (2008). House and Senate (4th ed.). New York, NY: W. W. Norton & Co. Fiorina, M. P. (1977). Congress: Keystone of the Washington establishment. New Haven, CT: Yale University Press. Fisher, L. (2007). Constitutional conflicts between Congress and the president (5th ed., rev.). Lawrence, KS: University Press of Kansas. Key, V. O. (1984). Southern politics in state and nation. Knoxville, TN: The University of Tennessee Press. Lindblom, C. E. (1965). The intelligence of democracy: Decision making through mutual adjustment. New York, NY: The Free Press. Locke, J. (1988). Two treatises of government. Peter Laslett (Ed.). Cambridge, UK and New York, NY: Cambridge University Press. (Original work published 1689) Maass, A. (1983). Congress and the common good. New York, NY: Basic Books. Mayhew, D. R. (2004). Congress: The electoral connection (2nd ed.). New Haven, CT: Yale University Press. Ripley, R. B. (1988). Congress: Process and policy (4th ed.). New York, NY: W. W. Norton & Co. Will, G. F. (1993). Restoration: Congress, term limits and the recovery of deliberative democracy. New York, NY: The Free Press. © 2016 Bridgepoint Education, Inc. All rights reserved. Not for resale or redistribution. fin82797_04_c04_075-106.indd 106 3/24/16 1:42 PM
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