American Government
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4 Congress and Policy Making
Learning Objectives
By the end of this chapter, you should be able to do the following:
Distinguish between explicit 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 Describe how bills become laws and explain the political nature of the legislative process Analyze the organization of Congress and how that organization affects the legislative process Describe how Congress holds the executive branch accountable
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After much debate, members of Congress from both parties, along with the president, reached a compromise that both sides could agree on to extend the Bush tax cuts.
Toward the end of the 111th Congress (2009–2011), legislators passed a bill to extend the "Bush tax cuts," which had been enacted in two parts—one in 2001 and the other in 2003—during the presidency of George W. Bush. While the cuts lowered everyone's tax rates, individuals and families earning in the top tax brackets derived greater benefit than those in lower brackets. For this reason, critics had always maintained that the cuts were really giveaways to the rich. However, supporters of the cuts claimed that putting more money into people's pockets helps spur economic growth because people have more money to spend.
In the fall of 2010, the original tax cuts were about to expire, and President Barack Obama and Democrats in Congress were in favor of allowing that expiration, but only for individuals and families in higher income categories (earning more than $200,000 per year). Meanwhile, Republicans, who had just won a majority in the House and narrowed the Democrats' majority in the Senate, promised to extend the cuts for everyone. If no action were taken, the tax rates would increase on January 1, 2011. Both Democrats and Republicans were concerned that such a broad increase might slow the economic recovery that was just getting under way.
Incoming Republicans were prepared to vote for a complete extension once the 112th Congress took office on January 6. They believed enough Democrats were worried about being reelected in 2012 and therefore would vote with them and give them the majorities they needed. Democrats believed that if no action were taken, the Republicans would gain the upper hand politically. Democrats also wanted to extend unemployment insurance (UI) 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 not give in to Republican demands. However, with the help of the White House, the majority of Democrats and Republicans were able to reach a compromise. Congressional Democrats and the president would support a temporary extension of the tax cuts for everybody for two years if the Republicans in Congress would support an extension of UI benefits to 99 weeks and a stimulus package in the form of a 2 percent reduction of Social Security payroll taxes for one year. While ideological purists in both parties were dissatisfied, practical‐minded members of Congress understood that this is how government works. Laws are passed by making deals, trading votes, and reaching compromises. It is through this process that members of Congress are able to perform their key function: representation of their constituents. In the end, practically everything that Congress does revolves around representation. In this chapter,
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we will explore the varied ways Congress represents us.
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4.1 Congressional Powers as Stated in Article I of the Constitution Congress is the legislative branch of American government and, as such, it is the body that writes the nation's laws and makes public policy. Its functions, however, are much broader than merely passing laws. Through its legislative oversight function, Congress holds the executive branch accountable to the American public. Through its ability to raise and spend money ("the power of the purse"), Congress determines how the taxpayers' funds are to be allocated. It also influences foreign policy through its ability to confirm appointments to Secretaries of State and Defense and to ambassadorships abroad, as well as through its power to ratify treaties. Finally, Congress participates in national security through its ability to raise armies and formally declare war on other nations. All of these functions speak to the primary role of this branch of government: it is the main vehicle of representation for the people, and it represents the public by listening to and then voting in accordance with their wishes.
The scope of Congressional power, and the parameters of its representation, are both established in Article I of the Constitution. Section I states from the outset: "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." After thus establishing that Congress is bicameral, or made up of two chambers, it defines who is eligible to serve, how each chamber selects its members, and the length of time that members stay. Members of the House directly represent people in local districts. They have to be attuned to their constituents' wishes because they must run for reelection every two years. The constituents are also represented by members of the Senate, who must abide by the will of the states they serve, because these representatives too stand for reelection, although not as frequently as House members.
Most importantly, however, Article I puts forth just what the principal powers of Congress are. They 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. For all intents and purposes, it is the responsibility of Congress to introduce a budget for the country. Section 8 under
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Only Congress has the authority to impose taxes and to borrow and print money. Presidents prepare budgets and submit them to Congress.
the enumerated powers, or the powers specifically granted by the Constitution, further states that 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. . . ." Congress has the sole authority to impose taxes and borrow money. In addition, only Congress has the authority to print money or to decide, for instance, that instead of paper currency, we will carry coins.
Although the Constitution makes clear that all these aspects of budgeting are Congress's exclusive domain, in practice, budgets are created much differently. The reality is that, thanks to the Budget and Accounting Act of 1921, the president actually prepares budget estimates, which are then submitted to Congress. This is done for the very practical reason that Congress would not know how much to approve unless advised by the departments seeking funds. Prior to 1921, departments often submitted their budget estimates directly to Congress. The purpose of the Budget and Accounting Act, which required the president to submit budget estimates, was to give the president responsibility for the budget. From an administrative standpoint, this would enable the president to have greater control over the agencies and departments of the executive branch, and this would allow for greater accountability. The right of the president 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."
Nevertheless, when the budget is formally presented to Congress in the form of a bill, it must be introduced by a member of the House to meet the constitutional requirement. This ensures that Congress approves of all spending and taxation measures.
What does this mean in practical terms? If we return to the vignette from the beginning of the chapter, this means that to extend the tax cuts along the lines agreed upon in the compromise, Congress had to introduce a new bill calling for their extension. The bill had to be introduced in the House and then sent to the Senate. Because it is a matter concerning taxation, the president could not have issued an executive order to change the tax rates; rather, Congress had to vote on the matter. Failure of Congress to act would have meant that the tax cuts enacted in 2001 and 2003 would have automatically expired, as stated in the original law.
Enumerated Powers: The Power to Declare War
Among the enumerated powers of Congress are the powers to "declare War," "To raise and support Armies," and "To provide and maintain a Navy." If the United States is to go to war against another country, Congress must either declare it or authorize the president to wage it. Congress must also appropriate the money needed by the military to fight it. When the Constitution was initially ratified,
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American bombs fall on Baghdad March 21, 2003. President George W. Bush ordered the attacks and addressed the nation to declare war, but his actions were authorized by Congress.
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 these 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. As an example, the day after the Japanese attacked the United States at Pearl Harbor in December 1941, President Roosevelt appeared before a joint session of Congress and requested a declaration. On other occasions, however, events may move too quickly for such formal procedures. There are provisions in law, most notably the War Powers Act of 1973 (discussed in the next chapter), that require the president to notify Congress when he has exercised his commander‐in‐chief function and authorized the use of American forces. Even so, Congress has the last word, because it votes to appropriate funds and it can cut off the supply of money. Congress can always pull the plug on a military operation through its power of the purse.
Consider the following example: In 2003, the United States went to war in Iraq for the stated purpose of removing weapons of mass destruction. Proponents of the war also justified it, in part, as being connected to the September 11,
2001, terrorist attack on the World Trade Towers in New York City. Some of the war's opponents claimed that President Bush did not obtain a formal declaration of war from Congress. Though true in a technical sense, the war was nonetheless a congressionally authorized action. President Bush had advocated for military action, and Congress debated the matter. Critics argued that instead of war, United Nations weapons inspectors should be allowed into Iraq to maintain pressure on the government of Saddam Hussein. President Bush agreed to back inspections and even further diplomacy for a limited time, but he still wanted authorization to use force if he deemed it necessary. Congress did give him that authorization and the freedom to determine when to use it. When Hussein continued to refuse access to inspectors despite diplomatic efforts, President Bush ordered the invasion. He then addressed the nation and publicly "declared war."
But did Congress declare war? It did authorize the use of force and most likely met its constitutional obligations. Some critics still cried foul because they thought it was understood that the initial authorization was merely a bargaining chip to force Hussein's hand in diplomacy, and that before actually going to war the president would appear before Congress a second time to request a formal
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declaration. Yet, Congress voted to appropriate funds for the Iraq war for the next seven years, until President Obama declared combat operations to be formally over in August 2010. If Congress were truly opposed to the operation, its members could have voted to cut off funding at any time.
Table 4.1 Unauthorized and Authorized Wars, 1898–2011
Authorized Unauthorized
World War I (1917) Spanish American War (1898)
World War II (1941) Korean War (1951)
Vietnam War (1968)* Invasion of Grenada (1983)
First Gulf War (1991) Invasion of Panama (1989)
War in Afghanistan (2001) Air War in Bosnia (1995)
Iraq War (2003) Air War in Libya (2011)
*U.S. involvement in Vietnam was authorized by Congress with the Gulf of Tonkin Resolution in 1968. However, Congress never formally "declared" war.
Implied Powers and the Necessary and Proper Clause
Congress's implied powers are based on the enumerated powers in Section 8 and amount to a prerogative to expand its authority as it sees fit. At the end of Section 8, the Constitution says: "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." This means that Congress has an implied power to do something not explicitly described in the Constitution if it infers such action is necessary to fulfill its other constitutional requirements. As an example, one enumerated power is "To raise and support armies," but the Constitution does specify what that means. Historically, it meant calling upon state national guard units and military drafts from time to time. However, the Constitution does not state that Congress has the authority to do either. Congress, however, can infer the right on the basis of the "Necessary and Proper Clause," as either becomes a means by which it is able to fulfill its enumerated function of raising and supporting armies.
Implied power is also the basis for expansive 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 carefully circumscribes what it can do. In recent history, Congress has overcome that restriction by asserting implied power. Whenever Congress seeks to pass a law without specific constitutional authority, it claims that the action is necessary and proper to carry out other stated powers.
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Even in the case where there is an express power, as with interstate commerce, its scope may not be clear. The Necessary and Proper Clause allows Congress to tie legislation to the Interstate Commerce Clause. Congress established the precedent for such an expansion of its powers in the early days of the republic, when the Federalists wanted to have 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. After all, if Congress coins money, it needs a bank to store it.
Arguably, such reasoning could serve as the basis for unlimited congressional authority. As an example, 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 the passage of such legislation, especially the requirement that individuals purchase health insurance. The answer almost always was that it was related to interstate commerce. This argument has a long lineage. When Congress passed the first minimum wage law in 1938, its constitutionality was also upheld on the grounds that it was related to interstate commerce. Prior to that, national legislation was considered to be an unconstitutional encroachment of a state's police power. But if firms were doing business across state lines, the argument went, what it was paying its employees could now become a matter of national concern because of Congress's express authority to regulate interstate commerce.
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Per the Constitution, the number of House seats afforded to each state is determined by population, and the states periodically configure their own congressional districts. Here, the Legislature Redistricting Committee meets to redraw Nebraska's congressional districts.
4.2 The Meaning of Representation Congress makes policy and passes legislation, all as part of its key function of representation. That word representation, however, means different things to different people, and in different situations. On the one hand, it can mean that congressional representatives do exactly what the people tell them to do. On the other hand, it can mean they do what they think is right because they have been entrusted by the people to speak and make decisions on their behalf. It can be interpreted on an individual level, such as when a member of Congress does service work for constituents, like helping to track down a late Social Security check; it also can mean that on a collective level Congress represents the people as a whole by holding the executive branch of government accountable. In all cases a member represents the people by serving as their agent and acting on their behalf.
There are four basic models of representation: the delegate model, the trustee model, the oversight model, and the individual service model. Before we look at these in detail, we need to consider just who members of Congress represent. Do they represent their constituents as individuals, or do they represent their districts or states as a collective whole?
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 get more representatives than smaller states. House seats are apportioned into particular areas known as congressional districts. The Constitution does not say anything about 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." This means that if members of Congress are to represent a district, it is up to the states to define the boundaries of those districts.
During the early years, each state had the right to decide whether it wanted to have 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. In that case, a state with ten House seats would be represented by all ten, as opposed to ten separate districts, each with one representative. But an at‐
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large system would have made the House very similar to the Senate, with members representing their states rather than the people. To prevent this, Congress passed a law in 1842 requiring all states to send representatives to Congress from single‐member districts.
Interestingly, the Constitution does not actually require equal representation, although its one per thirty thousand stipulation appears to do so. When added to the requirement that each state 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 435, which meant that as the population increased, each House member would represent a larger population within the same geographical area.
Gerrymandering
District boundary lines are not necessarily fixed and can be drawn any way that a state sees fit. This results in the states often engaging in the practice of gerrymandering to advance their own political interests. Gerrymandering occurs when a district is intentionally configured to maximize the influence of certain groups (for example, African American or Latino voters, who tend to vote for Democrats, or evangelical voters, who tend to vote for Republicans), or to guarantee that certain representatives keep their seats. Massachusetts governor Elbridge Gerry originally employed this practice prior to the election of 1812 in an effort to protect his political party. One district ended up looking like a salamander, and as a result the practice came to be known as gerrymandering (Figure 4.1).
Figure 4.1: Gerrymander Cartoon
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The concept of gerrymandering takes its name from an 1812 Essex County, Massachusetts, district, which was intentionally drawn to benefit the political party of Governor Elbridge Gerry. This cartoon of the district as a dragon satirized the practice.
States still engage in gerrymandering to achieve certain results (Figure 4.2). As an example, in 1991 the North Carolina General Assembly sought to enact a congressional plan with only one minority district, which was to be the first congressional district in the northeastern part of the state. The demographics of this area made it possible to create a small black district, which would be joined with the black precinct in Durham, North Carolina. The U.S. Justice Department opposed the plan, however, because of insufficient minority representation.
Meanwhile, the State General Assembly, which was then controlled by Democrats, responded in early 1992 by creating the famous 12th district. While Republicans had proposed several plans that would contain two minority districts, Democratic leaders in the Assembly picked one and tweaked it so it would be more favorable to their party. As a result, the 12th district looked similar to Gerry's 1812
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district. Several Republicans challenged this plan, claiming that it lacked both compactness and respect for community interests.
The case reached the Supreme Court in Shaw v. Reno in 1993, which ruled that a racial gerrymander may, in some circumstances, violate the Equal Protection Clause of the Constitution. The Supreme Court did not actually 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."
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 ten years for the primary purpose of reapportioning the House of Representatives. This means that as people move from, say, New York to Texas, New York should lose seats in Congress and Texas should gain more. The Supreme Court affirmed that Congress must reapportion based on population shifts when it ruled in the 1962 case of Baker v. Carr that failure to do so effectively denied people equal representation.
Figure 4.2: Congressional Districts
Many U.S. Congressional districts are still elaborately drawn to benefit members of the
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party in power.
Delegate Model and the Role of Public Opinion
As we noted earlier, there are four basic models of congressional representation. The delegate model holds that members of Congress are delegates of the people they serve, and, as such, whatever position they take on an issue in Congress is the position their constituents tell 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 be constantly tuned in to public opinion. As an example, a member of Congress who wants to know how she ought to vote on healthcare might poll her district to find out the opinion of the majority. If most of her constituents favor the bill, she votes for it; if they oppose it, so does she.
This model assumes that the member comes to the job of representation with no opinions of her own. As she stands for whatever her constituents stand for, she in effect stands for nothing. This raises the question of whether a delegate member of Congress can really ever be a leader since she acts like a follower. The case might be made, however, that she is not a follower. Rather, her stand on issues reflects the values of her constituents, as evidenced by the fact that they elected her. Had she not represented those views, they would never have voted for her.
A second assumption of the delegate model is that the primary goal of members of Congress is to be reelected and that 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 members of Congress 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, this is a portrait of members of congress who are selfish.
But is it always true? Based on this thesis, the wishes of the member's constituency come before any loyalty to political parties. The vote on the Affordable Care Act may be an example where this thesis did not hold up. Most public opinion polls showed that a majority of the American people 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 the thesis were accurate, then the healthcare bill should 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. On one level, those who voted for the bill may have believed that a majority of people in their respective districts wanted it. Others may have thought that by passing it and getting it out of the way, the public would forget about it, and consequently their votes would not cost them anything.
Trustee Model and Serving the Public Interest
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Edmund Burke (1729–1797) formulated the trustee model of government. Burke felt that elected legislators were more obligated to vote their conscience than the desires of their constituents.
But there is another possible explanation for why members voted for the Affordable Care Act. Some members of Congress might have believed that this was an issue of the common good, and they were going to do what they thought was right because their constituents entrusted them to make decisions on their behalf. These men and women embody the trustee model of representation.
The trustee model was initially formulated by British statesman Edmund Burke, who argued that representatives should vote on the basis of what they think 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 the positions they have taken. If their constituents are satisfied, they are reelected, but if they are 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 correct judgment. A more contemporary version of this position has been expressed by columnist and television commentator George Will. Term limits, Will argues, would make the members less beholden to their constituents and more able to act like trustees. Term limits are necessary, he claims, because today's politicians make lifetime careers out of serving in Congress, and the people cannot be trusted to do the right thing and throw them out of office.
To return to the example of those members of Congress who voted for the Affordable Care Act despite opposition from their constituents, we might say they acted like trustees. In fact, during the debates many dismissed the public opposition as the result of the Congressional members' failure to properly communicate and educate their constituents. This view suggests that members of Congress do indeed think they know better than the people what the people need.
Oversight Model and Delegating Authority to the Executive Branch
When Congress holds the executive branch accountable, it represents the people and serves the common good by using the oversight model. Accountability is typically maintained through hearings (discussed in detail in Section 4.5).
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Congress holds the executive branch accountable because it delegates authority to executive branch departments to perform functions. Oversight almost always begins with a formal delegation of authority. However, as much as Congress delegates authority to achieve the efficient operations of government, the right to delegate its power to another branch is not entirely clear. Article I, Section 1, of the Constitution says: "All legislative Powers herein granted shall be vested in a Congress of the United States. . . ." This would seem to suggest that Congress cannot delegate power to the executive branch. The constitutional provision would also appear to echo John Locke's view of the legislative body as having supreme authority. In his Second Treatise Locke 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 points out that the supreme legislature cannot transfer more power than it has, and that it certainly cannot transfer what it does not have.
This would imply two possibilities. One is that the authority to legislate can never be delegated. The other, which does open the door to delegation, is that if authority is delegated, it can never obligate others to obey in the same way that an actual law passed by the legislature would. The second possibility implies that Congress can indeed delegate authority to the executive branch to run a program after it has legislatively created it.
The Supreme Court considered this question in the 1930s. Initially the Court rejected the right of Congress to delegate authority, but the increasing demands placed on government to provide programs to meet people's needs ultimately necessitated delegation. In 1933, as a New Deal measure, Congress passed the National Industrial Recovery Act (NIRA), which contained codes regulating wages, hours, competition, and other industrial practices. Congress delegated authority to the executive branch to appoint a federal administrator to supervise the writing of these regulations, which, in effect, amounted to passing laws. The regulations were challenged in the 1935 case of Schecter Poultry Corp v. United States on the grounds that they violated the separation of powers. The Supreme Court ruled that delegating the authority to write such regulation was unconstitutional. On the one hand, the Supreme Court appeared to echo Locke's position on delegation. But on the other hand, it did not say that delegation of authority in and of itself was unconstitutional. Over the years, Congress has delegated authority to administer programs, and even draw up criteria for their implementation, but it has retained the right to monitor them through legislative oversight.
Impeachment as a Check
Oversight hearings are practically a daily occurrence in Congress, and most of us pay little attention to them. However, when it comes to high‐profile hearings, such as the Watergate hearings, we often find them riveting. In 1972 operatives associated with the Nixon administration's Committee to Reelect the President broke into the Democratic Party headquarters at the Watergate Apartments in Washington,
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In 1973, the Watergate Committee held hearings to investigate Richard Nixon's cover‐ up of the break‐in of the Democratic Party headquarters in the Watergate Hotel. The investigation led to a vote for Nixon's impeachment and the first resignation of an American president.
D.C. They were caught, and what followed was a cover‐up that led all the way to the president. Congress held special investigative hearings that the nation watched for weeks. The hearings resulted in the House of Representatives' consideration of whether to impeach President Nixon. The president, however, resigned from office 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.
The ability of Congress to impeach and remove the president from office is the ultimate congressional check on executive power. Removing a president is extremely difficult, and even voting for impeachment carries political risk for members of Congress. To impeach a president, the House of Representatives has to vote to impose Articles of Impeachment, which is a charge of wrongdoing as defined in Article II, Section 4, of the Constitution as "Treason, Bribery, or other High Crimes and Misdemeanors." Impeachment is only an accusation, but once made it automatically results in trial in the Senate. If convicted by two‐thirds of the Senate, the president is immediately removed from office.
Only two presidents in the nation's history have been impeached and tried in the Senate. The first was Andrew Johnson in 1868, who escaped conviction in the Senate by one vote, and the second was Bill Clinton in 1998, who escaped conviction by a wider margin. Each time Congress attempts to impeach a president and fails to remove him from office, it becomes more difficult to use it as a check. In the case of Johnson, who was impeached for violating the Tenure of Office Act (basically, he had removed the secretary of war from office, and this angered his political opponents in Congress), impeachment did weaken him politically, and he was not reelected in 1868. In the case of Clinton, impeachment enhanced his popularity because it was viewed as a politically motivated attempt to embarrass him over his marital infidelity. The Republican members of Congress who voted for Clinton's impeachment also suffered the consequences. Many of them were defeated in the 1998 midterm elections. This is another reason the power to impeach is so rarely used: to remove a president is, in effect, to undo the will of the American people.
The Service Model of Representation
Finally, members of Congress represent their constituents by performing services for them. In addition to traveling to Washington, all members of the House maintain an office in their districts, and all members of the Senate maintain several offices throughout their respective states. Any citizen can walk
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into an office and get assistance from its staff.
As an example, a recently retired person who is having trouble getting his first Social Security check can request the assistance of his representative. Either a staffer or the member of Congress herself makes a call to the Social Security Administration, which oftentimes moves things along faster. To take another example, a researcher who wants a certain type of information, such as a study of the history of allocating money for prison construction, can call the office of a member of Congress. The office will issue a request to the Congressional Research Office of the Library of Congress, and within a week or two a report is sent to the researcher. This type of representation is important because it is often the little things that win the support of constituents. 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 it also has potential for abuse and can lead to corruption. An example of this was the Keating Five scandal in 1989, when five U.S. senators were accused of improperly intervening on behalf of Charles Keating, who was chairman of the Lincoln Savings and Loan. It was alleged that Keating made $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. 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?
At the end of the day, Congress follows all four models of representation. Members sometimes act as delegates and at other times act like trustees. Meanwhile, they all are involved in oversight and service. It really depends on the specific issue being considered and the amount of time between voting on the issue and the next election.
As a rule of thumb, members of Congress are more likely to act as delegates on matters of domestic policy, because such bread‐and‐butter issues more directly impact their constituents' lives. Congresspersons are more likely to act like trustees when it comes to foreign affairs because these often seem more abstract to constituents. But there are other times, like on a historic issue like healthcare reform, that they figure they can be trustees because their constituents will not remember the issue by the time the election rolls around. They may also calculate that they can make amends with their constituents by doing more service work. Or they might assume that their oversight and service functions will compensate for a vote against the wishes of the people. The four models of representation thus overlap with one another. But there is still another form of representation that will be explored during the discussion of the legislative process: they represent their districts by delivering benefits, or "pork," to them.
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Vice President Biden meets with congressional committee leaders in an attempt to work out a deficit reduction plan. Congress is organized by committees because it is the most efficient way to get things done.
4.3 Congressional Organization Congress is organized by both committees and party leadership. The bulk of the work of Congress gets done in the committees, and the party in power organizes the Congress and determines its leaders. Upon entering Congress, a newly elected member has a choice. He or she can seek to be assigned to a key committee, which will provide a base of power, especially if he or she becomes committee chair. Or the new member can attempt to move up the ranks of the leadership ladder, with the hopes of someday becoming speaker of the House or majority leader in the Senate.
Congressional Committees
Congress is organized by committees principally because it is the most efficient way to get its business done. Some of the Framers believed that in the spirit of democracy all members should be knowledgeable about and able to debate all the issues that came before Congress. This might have been possible in the early days of the republic, when Congress was relatively small and did not have much to do. In those days Congress was in session only for about two to two and a half months of the year. Members remained in their districts the rest of the time. The farmer who came to Congress to represent a district in rural Virginia would still spend most of his year at home, farming. But broad knowledge is no longer practical in an era when Congress deals with many complex issues.
Dividing Congress into committees allows specialization of labor, which leads to greater efficiency. Those on the Education Committee, for example, deal only with issues of education, while those on the Armed Services Committee deal only with matters of defense. While specialization means that members can become experts on the issues their committee deals with, it also means they are largely ignorant of other issues before Congress. The obvious question is whether a member of Congress can really be said to represent the people when they are not fully knowledgeable about everything. However, if they divide their time among all the issues so that they can know something about everything, they end up having no depth of knowledge
about anything. In practice, members of Congress often do not even fully read legislation that they will be a called to vote on. Rather, they read summaries that have been prepared by staff members.
Parties in both the House and the Senate use different methods for selecting committee members. For instance, Democrats in the House of Representatives relied on Democratic members of the Ways and Means Committee to recommend assignments from 1911 to 1974. Beginning in 1975, this function was
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taken over by the Steering and Policy Committee, chaired by the speaker. Republicans in the House have a special 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 members of the party, who are also committee chairs. Once they are on the committee, they are automatically reappointed. Senate Republicans have a Committee on Committees that makes initial assignments, also on the basis of seniority. However they are made, all recommendations need to be approved by the party caucus.
Members choose a committee that will best serve their constituency. As an example, a member might want to serve on the Armed Services Committee because he or she has a weapons systems manufacturer in his or her district. The member hopes to maintain support for the systems that manufacturer makes, which will also maintain jobs for constituents. This is an example of delivering the goods back to the district.
Types of Committees
There are three types of committees: standing committees, select committees, and joint committees. Committees are where power is located, and it is where legislation is crafted. Research for legislation is also usually done in committee. Finally, testimony about the impact a bill may have occurs in committee.
A standing committee exists permanently from one Congress to the next and deals with a variety of issues in a given subject area. An example of a standing committee is the Education and Labor 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. One subcommittee deals specifically with job training, for instance, and another deals specifically with minimum wages.
Table 4.2 Committees of the 111th Congress (2009–2011)
Standing Committees Select Committees Joint Committees
Agriculture Permanent Select Committee on Intelligence
Economic
Appropriations Select Committee on Energy Library
Armed Services Independence and Global Warming
Printing
Budget Taxation
Education and Labor
Energy and Commerce
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Financial Services
Homeland Security
House Administration
House Judiciary
Natural Resources
Oversight and Government Reform
Rules
Science and Technology
Small Business
Standards of Official Conduct
Transportation and Infrastructure
Veterans Affairs
Ways and Means
Source: United States Senate website: http://www.senate.gov/pagelayout/committees/d_three_sections_with_teasers/committees_home.htm (http://www.senate.gov/pagelayout/committees/d_three_sections_with_teasers/committees_home.htm)
A select committee is established to address a specific purpose. That is, there is a particular issue that needs to be addressed, and it is in a subject area that does not easily fit into one of the standing committees. Once the issue has been addressed, the committee can be disbanded, or if the issue is expected to be ongoing, it can be made 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. When a bill is passed in the House on, for example, immigration reform, it is usually different from a bill on the same issue passed by the Senate. Only one bill can go to the president for his signature, so a conference committee is put together to work out a compromise.
A joint committee may also be convened to carry out congressional investigations into presidential abuses of power, or to discuss business the two houses have in common, such as the running of common facilities or arranging celebrations or memorials.
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Joint committees are made up of members from both houses of Congress.
Committee Chairs
Committee chairs traditionally have been assigned based on the seniority system. Those who were in Congress the longest eventually found themselves chairing the committees of their choice, but this meant that members had to do their time. This also meant that there was little opportunity for newcomers to become key committee chairs. In the House, this changed around 1974 when, on the heels of Watergate, the newly elected freshman members staged a revolt and demanded an easing up of the traditional rules.
In the Senate, the seniority system meant that the southern states held a disproportionate amount of power. Until the 1970s, the South was for essentially a one‐party system. Nearly everybody was a Democrat and the Republican Party was virtually nonexistent. Legislatively, it was nearly impossible to get things done without the assent of the southern senators.
Leadership
Congress is also organized by party leadership. The political party with a majority of seats in a chamber of Congress gets to organize it. The speaker of the House leads the House of Representatives and comes from the majority party because the members elect him. He is third in line of succession to be president. Under the speaker is the majority leader, and under the majority leader are lieutenants known as whips, or floor leaders. These are the people who gauge the support for a particular bill among members of their party. They also attempt to enforce party discipline so that the rank‐and‐file members vote in accordance with the party's political agenda. On the Senate side, the key leadership positions are majority leader and whips who perform the same basic function as their counterparts in the House. Meanwhile, the minority party in both chambers also has leadership positions. In both chambers there are minority leaders, and beneath them there are minority whips.
On an issue like the Affordable Care Act, the Democratic Party, which supported the measure, held a majority in both houses of Congress. On the House side, both the speaker and majority leader worked hard to enforce discipline, and in the Senate the majority leader did the same. It was the task of the Democratic whips to count the votes that they could rely on and otherwise marshal the troops. At the same time the minority leaders in both chambers enforced party discipline so that there would be unified opposition to the measure. Again, it was the task of the whips to count heads and marshal the troops.
How does the leadership enforce discipline? It comes back to committees. The majority party selects the chairs of each of the committees in Congress, and among the committees controlled by the
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speaker and majority leader are appointments and rules. This means that party loyalists can be rewarded with desirable committee assignments, and those who do not fall into line can be punished with less desirable ones.
Role of Staff
As an institution, Congress is composed of two groups: the members themselves and their staffs. The congressional staff plays a significant role in the overall operations of Congress and, more specifically, in the representative function. Each member has a sizable personal staff. Most members also have committee staff. Prior to World War II, the congressional staff was not very large (Table 4.3). Just after the war, personal and committee staff members combined numbered 2,000. Those numbers grew steadily over subsequent years, and by the mid‐1980s, 18,000 individuals were working on either a personal or committee staff.
Figure 4.3: Number of Personal Staff Members in Congress, Selected Years, 1930–1986
Since World War II, the number of personal staff members for Congress has increased substantially. By 1986, with 3,774 personal staff for 100 Senators, each member of the Senate had an average of 38 personal staff.
Source: Norman J, Ornstein and others, Vital Statistics on Congress, 1987–1988 (Washington, DC: Congressional Quarterly, 1987) taken from Randall B. Ripley, Congress: Process and Policy Fourth edition (New York, W.W. Norton & Co., 1988), p.242.
Staff members can have considerable impact on legislation. As members of Congress find themselves
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Congressional staff members gather outside the capitol. Staff members play numerous important roles in the overall functions of both houses.
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, and junior members are likely to rely more on their staffs 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, either by distributing materials to all members or by briefing those members who will be conducting the debate. Committee staff members also serve as the liaisons between Congress and both interest groups and the executive branch.
In short, committee staff members perform four principal functions of intelligence, integration, innovation, and influence.
They provide intelligence by collecting and filtering information before it is passed onto committee members. They integrate by working closely with the staffs of similar committees in the other chamber. They innovate by looking for new problems and then proposing solutions to them. And they have influence because of the vital tasks they perform and the trust they build between themselves and members of Congress.
Organization by Constituency Versus Organization by Party
A key question is whether it is more important for Congress to be organized to best serve constituents or to best serve the party. The committee structure of Congress is designed to serve primarily constituents, while the leadership structure serves the interests of party. For members, it can be difficult to choose whether to pursue committee leadership or chamber leadership. While the speaker of the House and majority leader in the Senate may be more powerful and in more prestigious positions than committee chairs, it can take years for a member to work his or her way up to the top, and many will not make it. Becoming a committee chair is easier, and the results are often more beneficial to the member's constituents.
As chair of a key committee, a member can build a power base and make a tremendous difference. During the 1980s, for instance, Senator Robert Byrd of West Virginia was majority leader. He actually resigned that leadership post to become chair of the Senate Appropriations Committee, where he was able to ensure a flow of federal dollars into West Virginia to benefit his constituents.
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Although leadership positions may have high visibility, the people who hold them may be seen as focused on national issues rather than local ones, and constituents often feel neglected. Whether the perception is true or not, the reality is that they do not have as much time to devote to their districts when they are in leadership positions. South Dakota Senator Tom Daschle, who was majority leader during the 1990s, was defeated when he ran for reelection during the 2006 midterm congressional election because of a well‐financed campaign by his opponent, who accused him of being out of touch with his constituents. A similar campaign helped defeat former Speaker of the House Tom Foley in the election of 1994. In both cases neither one had much time to be in the district campaigning, which gave their opponents an advantage.
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 we 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 to be represented by ordinary citizen‐politicians, but the committee structure and the over‐reliance on specialization and division of labor gives rise to the professional politician. The effect is to remove the congressperson from the people. Moreover, greater democracy may be achieved if our representatives are familiar with all the matters before them. But Congress has been overburdened with so much work in recent decades that many members are not able to keep up. In other words, 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.
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4.4 Policy‐Making and Broad Representation Policy‐making is the process by which ideas become laws. It is also through policy‐making that a variety of diverse positions are represented in the U.S. Congress. On one level, the process could be thought of as a flow diagram whereby bills are introduced, debated in committee, debated further in the entire chambers of both houses, 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 he or she 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 only if there is something in it for their constituents. This does not mean that that they expect this 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.
How a Bill Becomes a Law
As Figure 4.4 shows, a bill is typically introduced by a sponsor, and possibly several co‐sponsors, into 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 and the component dealing with 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.
Figure 4.4: How a Bill Becomes a Law
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The path a bill must take to become law looks straightforward, but the process is actually quite political.
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 therefore appoint representatives to serve on a conference committee that's tasked with hammering out a compromise. 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 never be voted on in the full chamber. Go to http://www.youtube.com/watch? v=nlka6fTnDnI (http://www.youtube.com/watch?v=nlka6fTnDnI) to watch a classic Schoolhouse Rock video describing how a bill becomes a law.
Senate Filibusters
Each chamber has the right to establish its own rules for debate. In the House, where there are more members, each might be given no more than five minutes to speak on any matter on the floor. The Senate, however, has more elaborate rules of deference,
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Senator Strom Thurmond engaged in a 24 hour and 18 minute filibuster in 1957 to prevent passage of the Civil Rights Act (his efforts failed, as the bill ultimately passed). Here, he is approached by reporters after just after ending his time on the floor.
and a debate there can be endless. The Senate also allows its members to engage in the filibuster, a procedure under which individual senators can extend debate indefinitely, which can ultimately prevent action on a bill. The idea is that nobody can have the floor to speak, let alone introduce a motion to vote, if the filibustering senator has not yielded the floor. As part of a filibuster, the senator can yield to a colleague who will continue where he or she left off.
An old‐style filibuster involved a senator talking for hours until everybody 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 Democratic Party (Dixiecrat) candidate for president in 1948, with the goal of preserving the segregationist southern way of life. Thurmond's filibuster, which lasted for more than twenty‐four hours, began with his reading every state's election laws in alphabetical order and continued with reading the text of 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.
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 sixty senators vote for cloture. This means that a Senate divided along party lines, and where the majority party can never achieve the required sixty 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 sixty votes. The leadership members in either chamber usually will not attempt to bring a bill to the floor unless they believe they have the necessary number of votes, as measured by the whips, to pass it.
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 the district or state. Delivering so‐ called goodies is often referred to as pork barrel politics. The congressional leadership in effect buys 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 is a legislative provision
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Many people decry the idea of pork barrel spending, but they don't mind when their own congressional members secure federal programs and projects for their areas.
directing funds to be spent on approved projects. Earmarks are items placed into the budget that target projects in House members' districts or senators' states. They can also exempt certain projects or enterprises from taxes and other fees. On the one hand, critics of earmarks, including members of Congress, decry them as wasteful spending. But on the other hand, members are often quiet when the earmark is in their district. Earmarks provide a concrete example of Lowi's distributive politics (discussed in Chapter 1).
Congressional leaders are not the only politicians who offer pork. The president also often supports various projects for specific members in exchange for their support of his goals. As an example, the late Senator Byrd of West Virginia secured an FBI fingerprinting facility, which generated thousands of jobs, for his state. At the end of the day, the exchange cost the member very little, but the yield was tremendous. Moreover, many members of Congress run on platforms of what they can do for their states, i.e., what they can bring
back. Many voters support candidates based on what they plan to bring back to the district or state, rather than on more abstract issues.
Vote Trading
Vote trading involves members exchanging votes with one another. Congressman X says he will vote in favor of a bill supported by Congresswoman Y if she in turn will vote for his bill. Say Congressman X's bill is for increased defense spending because it will benefit his district, and Congresswoman Y's bill is for a new literacy program because it will benefit her constituents. In all likelihood, Congresswomen Y has no real interest in defense issues and Congressman X has no real interest in literacy programs, but they are willing to support each other to represent their own constituents effectively. It is often through this type of "you scratch my back and I'll scratch yours," which is sometimes referred to as logrolling, that Congress gets things done.
Coalition Building and Broad Representation
Representation in the U.S. 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 anti‐climactic because we learn along the way how members are going to vote, and we know this because of the work that has gone into building a coalition.
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Coalitions have to 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 Arthur Maass has called broad‐based representation. Ultimately, everybody's interests and needs are taken care of, and because it is a process, nothing gets done quickly enough that individuals' rights can be trampled upon.
Policy‐Making by Consensus and Partisan Mutual Adjustment
In an ideal world, Congressional 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 reality. Rather, members find that they must compromise on their positions to build consensus. They vote for measures because they have bargained with one another and a variety of deals have been made throughout the halls of Congress. Political scientist Charles Lindblom calls this process partisan mutual adjustment. Members build a consensus, for example, for a tax bill that accomplishes only some of what they want because they must adjust their expectations and compromise to get enough votes.
Extension of the Bush tax cuts is a case in point. The person who stands on principle says it is either the entire loaf or nothing at all. But the member of Congress who seeks to represent his/her constituency says that it is better to have half a loaf than no loaf. 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 the taking of these 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 our liberties if Congressional members are only able to make small changes at a time. An incremental process is checks and balances in action, and thus in the end represents the public well.
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Secretary of Defense Robert Gates talks 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.
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 hearings, overriding presidential vetoes, and the legislative veto.
Hearings
Hearings occur when members of Congress, usually in committee, request the appearance and testimony of officials in the executive branch, who have little choice but to comply. (Failure to respond to a congressional subpoena can result in arrest and jail time.) During hearings officials are usually asked to report on what their agency or department has been doing, as well as to explain any new programs that have been implemented. Congress generally wants to know how the taxpayers' money is being spent.
For instance, both the House and Senate Foreign Affairs committees 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 may 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 Veto
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.
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President Clinton signs his veto of a temporary borrowing bill in 1995. Congress could not secure the required two‐thirds majority to override it.
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 forces the president to justify his position. Because an override is difficult to achieve, it is not wise to threaten one unless the leadership is sure that it has lined up the needed votes.
Legislative Veto
The legislative veto is another tool that Congress has used to control the executive branch. Technically the Constitution only provides for a presidential veto, but Congress has 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.
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4.6 Congress and Elections Congressional elections, which occur every two years, present opportunities to change the government. A midterm election, which falls in the middle of the president's four‐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 two 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 two years later. This suggests that the midterm election was more of a repudiation of the party controlling Congress than the president.
President Clinton campaigned on a platform of healthcare reform, which he failed to deliver. But much of that failure stemmed from opposition in Congress from members of the president's party. 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. Election of the Republicans 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. After the midterms, Clinton no longer had working majorities in Congress; instead, there would now be continuous opposition to his agenda. 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 (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 like California, for instance, a candidate might easily spend as much as $40 million.
Figure 4.5: Average Cost of Winning an Election, 1986–2008
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Incumbent politicians spend much of their time in office fundraising and running for the next election.
Running for Congress is an expensive proposition.
* John Corzine (D‐N.J.) spent $63,209,506 and Hillary Rodham Clinton (D‐N.Y.) spent $29,941, 194. Remaining Senate winners in 2000 spent an average of $4,737,365.
Source: Analysis of Federal Election Data. Vital Statistics on Congress (Washington, DC: Brookings Institution Press, 2008), downloaded from http://www.cfinst.org/data/VitalStats.aspx (http://www.cfinst.org/data/VitalStats.aspx) .
This means that those running for Congress must raise large sums of money. Because the next election is only two years away, at least for representatives, much of a member's time is spent raising funds and campaigning. By law, an individual is not permitted to give more than $4,000 to an individual campaign, but political action committees (PACS) can give up to $10,000. To raise these funds, a congressman will attend nearly endless fund raisers. More importantly, much of his legislative effort will be spent attempting to please an array of different special interest groups who can be expected to make large contributions The nature of campaign finance may effectively make Congress beholden to special interests, and thus call into question the meaning of representation. Congressional elections also serve to keep members accountable to their
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constituents.
The nature of campaign finance favors incumbency. Current members tend to enjoy widespread name recognition and therefore don't need to put forth as great a financial effort to make themselves known to the voting public. They also enjoy the franking privilege that comes with holding office, which means they can use taxpayer funds to mail flyers and other materials to help educate their constituency as to their positions and accomplishments. A third significant advantage of incumbency is that campaign contributors are more likely to give money to a known quantity than to someone who has never held public office.
Who Does Congress Ultimately Represent?
The way we finance elections in the U.S. today raises the question of who is really being represented. Is it the constituents who vote or the moneyed interests that contribute to campaigns? The reality is that a member cannot represent his or her constituency if he or she cannot get elected. And because attainment of leadership positions, even committee leadership positions, is based on seniority, members need not only be elected, but reelected. It might seem bizarre that for Congressman X to represent his constituents, he first needs to satisfy contributors. Nonetheless, if he is perceived as catering to moneyed interests, he can deflect criticism by delivering the pork and performing the essential service work.
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4.7 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 difficulties of travel 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 representatives stand 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 information about how the public feels about particular issues, thereby making it easier to represent us.
Technology also plays an increasing role in elections. Through Internet and email, members of Congress can reach out to the general population to raise funds. Reaching a broader 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 forces Congress to be transparent. At a minimum, members are more accountable; they can no longer hide behind public ignorance.
Technology may raise a larger, more philosophical question: if the public can become informed about public affairs through the use of the Internet, do we need Congress to represent us at all? Might we not reach a point where the institution becomes 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?
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Summary and Application 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 can mean different things. Members can represent by serving as delegates whereby they always do as the people instruct them. They can represent by serving as trustees whereby they vote on the basis of what they think is right, i.e., what they take to be in the public interest. Or they can represent by holding the executive branch accountable through the oversight function. Depending on the issue, members usually represent through a combination of all three. By the nature of Congress's organization and the process by which laws are passed and policy is made, Congressional 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, everybody is represented in the end. Ultimately, everybody has to be represented if the coalitions necessary to achieve the required consensus to pass legislation are to be built.
Congress holds the executive branch accountable through hearings, its ability to override presidential vetoes, and legislative vetoes. What each of these tools has in common is that they force members of the executive branch to publicly justify their actions To a large extent, then, everything that Congress does is in the service of its primary function of representation. Even the nature of congressional elections serves the representative function. The need to get 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 Interstate 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
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members of Congress act as delegates, whereby they do as their constituents instruct them to do. But on other occasions they act as trustees, whereby they vote according to what they think is right. One theory of representation holds that the first priority of Congress is to be reelected, which means members must vote on issues according to the wishes of the people. But representing a district might also entail things like bringing money back to their districts (or states) and trading votes with other members of Congress to obtain support for locally important programs. Another theory of Congressional representation holds that Congress represents us 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 a committee 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.
Questions to Consider
What is the power of the purse? Do implied powers through the Necessary and Proper Clause give too much power to Congress? Why or why not? What are the ways that Congress can represent the American people, and which one best speaks to the nature of the U.S. Congress? Is the way Congress is organized necessarily the best way? Given what you now know about how policy is made in Congress, is there any other way the votes for extending the Bush tax cuts could have been obtained? 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?
Web Links
The United States House of Representatives: http://www.house.gov/ (http://www.house.gov/)
The United States Senate: http://www.senate.gov/ (http://www.senate.gov/)
The Library of Congress: http://thomas.loc.gov/ (http://thomas.loc.gov/) .
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The United States Government Accountability Office: http://www.gao.gov/ (http://www.gao.gov/)
Congressional Budget Office: http://www.cbo.gov/ (http://www.cbo.gov/)
U.S. Government Printing Office: Congressional Record: http://www.gpo.gov/fdsys/browse/collection.action?collectionCode=CREC (http://www.gpo.gov/fdsys/browse/collection.action?collectionCode=CREC)
Key Terms
Key Term Definition
agency representation When the member represents by being an agent.
apportionment Distribution of congressional members in a state.
bicameral In Congress, the practice of having two chambers: an upper body and a lower body.
cloture A vote taken to close the debate on a bill. Senate rules require that a minimum of sixty senators vote for a cloture.
conference committee A joint committee made up of members of both the House and 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.
enumerated powers Powers and authority specifically given to Congress by the Constitution.
filibuster A procedure by which members of the Senate can extend debate indefinitely, thereby preventing action on a bill.
franking privilege The use of congressional or public funds to mail information out to voters.
The drawing of congressional district boundary lines to give a
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gerrymandering 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.
joint committees Congressional committees 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.
oversight model The idea that Congress holds the executive branch accountable through investigative oroversight hearings.
partisan mutual adjustment
The process of reaching a consensus through bargaining and compromise.
pork barrel politics When members of Congress bring projects or other goods back to their districts.
power of the purse The power of Congress to determine how funds are spent.
select committee A committee that is set up for a special purpose.
service model When Congress members represent their constituents by performing service for them on an individual level.
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 member thinks is right.
whips Members of congressional party leadership who work the floors and marshal support.
Further Reading
Baker, R. K. (2008). House and Senate, (4th ed). New York: W.W. Norton & Co.
Fiorina, M. P. (1977). Congress: Keystone of the Washington establishment. New Haven: Yale University
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Press.
Fisher, L. (2007). Constitutional conflicts between congress and the president. (5th ed., Rev. ed.). Lawrence: University Press of Kansas.
Key, V.O. (1984). Southern politics in state and nation. Knoxville: The University of Tennessee Press.
Lindblom C. E. (1956). The intelligence of democracy: Decision making through mutual adjustment. New York: The Free Press.
Locke, J. (1988). Two treatises of government. Peter Laslett (Ed.). Cambridge and New York: Cambridge University Press.
Maass, A. (1983). Congress and the common good. New York: Basic Books.
Mayhew, D. R. (2004). Congress: The electoral connection, (2nd ed). New Haven: Yale University Press.
Ripley, R. B. (1988). Congress: Process and policy (4th ed.). New York: W.W. Norton & Co.
Will, G. F. (1992). Restoration: Congress, term limits and the recovery of deliberative democracy. New York: The Free Press.