American Government Lecture Two

Government "jargon" of the day: "divided government," which means control of part of the legislative and executive branches by one political, and control of some parts of the legislative and executive branches by the other political party.

Congress

Congress represents the first branch of government: the legislative branch. It passes the laws, raises and spends money, declares war, and is responsible for other major functions of government such as regulating commerce among the various states.

Article I of the U.S. Constitution defines and limits the powers of Congress.

Congress has two entities: the House of Representatives and the Senate. Each is run by its own set of rules.

House of Representatives

The House of Representatives, or simply the "House", consists of 435 members and is led by the "Speaker of the House," who is currently the Democrat Nancy Pelosi.

The power of the House derives from its constitutional responsibility in drafting and proposing all spending bills.

If the Republicans capture a majority of the House in the 2010 elections, then the new Speaker of the House will be a Republican rather than a Democrat.

Senate

The Senate consists of 100 members - two for each State. It operates like a club, with individual senators holding a great deal of power to block a nominee by the president or filibuster a vote. If 41 senators agree to block a bill, then the bill cannot pass even though a big majority of 59 senators support it. In this case the bill fails to obtain "cloture".

The leader of the Senate is chosen by majority vote of the political party that is in the majority. Currently there are 59 senators who are Democrats (including two Independents who vote with the Democrats), so the Majority Leader of the Senate is a Democrat: Harry Reid.

Congressional Powers

The Constitution gives the following powers to Congress:

Taxing Power: Congress can tax either to raise revenue or to regulate an activity. Some taxes are designed to discourage sales, such as taxes on gasoline and cigarettes. Neither Congress nor the states can tax exports.

Spending Power: Congress can spend money on any public purpose. Virtually any spending can be considered “for the common defense and general welfare.” However, Congress may not regulate the general welfare independent of spending.

Commerce Power: Congress has exclusive power to regulate all interstate and foreign commerce. Congress may regulate any activity that has an effect on interstate commerce.

War Powers: Congress alone declares war and establishes and supports the military. Congress may also make rules for military courts, over which federal courts have no general authority. Congress can impose economic regulations (e.g., controls on wages and prices of goods) during wartime.

Property Power: Congress has exclusive power over all federal lands and property, of which there is a great deal. Congress also runs the District of Columbia, which is not in any state.

Intellectual Property Power: Congress sets the laws for patents, copyrights and trademarks, which are called “intellectual property” because they are abstract products of intelligence rather than physical property.

Bankruptcy Power: Congress establishes uniform bankruptcy laws for the nation.

Postal Power: Congress establishes and runs the U.S. Post Office. No competition is allowed unless Congress agrees to it (as it did for expensive overnight services like Federal Express) Money Power: Congress coins money and also sets standards for weights and measures.

Citizenship Power: Congress can exclude aliens and determine the procedures for people to become citizens.

Admiralty Power: Congress sets the laws for the seas.

What’s left? Congress can also expand its authority under these powers with the “Necessary and Proper Clause,” also known as the “Elastic Clause.” Congress can make any law that is proper for executing any power granted to any part of government, not just Congress. But there must be an underlying, specific grant of power in addition to the Necessary and Proper Clause. For example, Congress could not pass laws establishing local police departments because there is no grant of power to the federal government in that area.

How Laws are Made

The basic process for passing federal law is as follows: A committee in the House of Representatives drafts a new statute. If the committee approves the bill, then it is sent to the House Rules Committee, which will dictate the rules for debate and amendment by the full House prior to a vote. If it ultimately passes the full House, it then proceeds to a committee in the Senate, which may revise it before approving or rejecting it. If the Senate committee approves it, perhaps in revised form, then it goes to the full Senate for passage. Amendments may be proposed by any senator, and any senator may try to block by a vote by arguing indefinitely (this is known as a filibuster). In the Senate, 60 votes are necessary to end a filibuster and force a final vote.

If it passes the Senate, then it is compared to the House version. If they were identical, then it proceeds directly to the president for approval or rejection. But if the House and Senate versions are different, then it must go to a specially appointed joint committee representing both chambers. They attempt to resolve the differences and present an identical version for new approval by the House and Senate. If the revised version is approved by both the House and Senate, it then goes to the president.

If the president signs the bill in ten (10) days (excluding Sundays), or fails to return it without a signature and Congress is in session, then it becomes law. If the president vetoes the bill, or fails to return it in ten (10) days (excluding Sundays) and Congress is no longer in session (the “pocket veto”), then it does not become law. (A famous example of the pocket veto was President Lincoln’s refusal to sign his own Party’s Wade-Davis Bill in 1864, which would have imposed harsh penalties on Confederate officials.) Congress may attempt to override any type of veto, but it needs 2/3 approval in both the House and Senate to do so. See Article I, Section 7, clause 2 (p. 320).

Overrides of vetoes were very rare prior to President Andrew Johnson. Only three presidents have been overridden ten or more times: Presidents Andrew Johnson, Harry Truman and Gerald Ford. The reason is simple: each faced a Congress that was dominated by the opposing political party. Republican President Reagan vetoed 78 bills of Congress, but was only overridden nine times. That is remarkable given his principled positions and the overwhelming Democratic control of the House of Representatives during his presidency. The Republican-controlled House voted to override President Clinton’s veto of the ban on partial-birth abortion, but the Senate lacked the 2/3rd majority required. It was not until President Bush was elected in 2000 and the Republicans captured the Senate in 2002 that now it appears this bill will be enacted into law. With Bush agreeing to sign the bill, only a majority (rather than 2/3rd) vote is necessary in Congress to enact it.

Legislative History

The Constitution is a model of clarity compared with what Congress passes each year. Ambiguities pervade laws passed by Congress. Often the congressmen argue among themselves, and then pass compromised language rather than clarity. They may not even agree what the language means at the time it is passed.

Senators like Ted Kennedy would insert comments on the Senate floor and in committee reports about what they feel the statutes mean. Sometimes lengthy descriptions of intent are inserted by a few senators into these reports. Courts then pick up on these comments to find meanings that may not have been shared by most of the supporters of the statutes.

The reports and statements by congressmen in connection with passage of a bill are known as its “legislative history.” For most of our history, it was popular for courts to rely heavily on legislative history in interpreting a statute. To combat this, Presidents Ronald Reagan and the first George Bush began attaching their own interpretations of statutes to what they signed into law.

What did the Framers of the Constitution do? They insisted that all notes and viewpoints be destroyed at the end of the constitutional convention. They did not want any “legislative history” to influence the interpretation of the Constitution itself. Only James Madison preserved his notes, which were not published until many decades later.

Several on the U.S. Supreme Court, such as Justice Scalia, feel that legislative history should have no influence in interpreting a statute. In what is known as "textualism", these conservatives feel that the text of the statute alone should define its meaning. What do you think?

States Determine Election Procedures

Under the Constitution, States determine the procedures for electing their congressmen. State law sets the primary dates on which each political party picks its nominee for the general election in November. If neither candidate receives more than 50% on Election Day, then some States require “run-offs” before declaring a victor, while other States simply declare the candidate who won a plurality to be the victor.

For example, if John Smith received 48% and Mary Doe procured 47%, and minor party candidates totaled 5%, then a run-off would feature an election between only John Smith and Mary Doe a few weeks later. With only two candidates on the ballot for the run-off, then at least one will win a majority of the vote.

States that do not utilize “run-off” elections would simply declare John Smith the winner, despite his failure to receive 50% of the vote.

In our presidential elections, the Constitution does not provide for a run-off. Many presidents have won without ever receiving a majority of the votes cast by the American public, but they receive a majority of the votes cast by the Electoral College.

When there is no run-off, occasionally (but rarely) a candidate can win because his opponents split their vote. Two examples of presidents who because of vote-splitting are Woodrow Wilson in 1912 and George W. Bush in 2000)

A senator who won due to vote-splitting was conservative James Buckley in New York in 1970. But victories due to vote-splitting is quite rare.

Homework

(Choose any five questions)

1. What are the six major powers of Congress?
2. Do you support term limits for congressmen? Do you support a power by the people to recall congressmen? How are these two powers different?
3. May communities lawfully create their own currency (money) in the United States as competition to dollar bills? Include a discussion of the Constitution in your answer.
4. Why do you think Constitution Day is not celebrated as much as perhaps it should be in recent years?
5. Explain what fraction of the Senate is elected every two years, and the reason why only some of the senators are up for election on Election Day.
6. Should gerrymandering be unconstitutional? Explain.
7. Do you think having Stephen Colbert testify before a Congressional committee makes a mockery of the institution?
8. What obstacles might prevent Republicans from passing legislation in 2011?
9. “Politics is not fair.” Should it be?
10. Explain the role of committees in Congress, with examples.