In our first lecture we focused on the Executive branch of government, including a discussion of the upcoming presidential election. We devote this week's lecture to the branch that the Founders thought would be more important: the Legislative branch, which consists primarily of Congress and its staff.
In the United States and in 49 out of 50 states there is a "bicameral" legislature, which means there are two legislative bodies. In Congress this legislature consists of the separate entities (or chambers) of the House of Representatives and the Senate.
At the state level, state legislatures have a Senate but often use a different name for their other legislative body. In New Jersey the equivalent of the U.S. House of Representatives is called the "Assembly". Because the term of office for the Senate is longer than for the Assembly (or House), politicians aspire to eventually be elected to the Senate.
Bills are designated by the chamber in which they are introduced: "A 555" means "Assembly bill number 555" in a state legislature. "H.B. 555" means "House Bill No. 555" in Congress; "S.B. 555" means "Senate Bill No. 555." Nebraska has a "unicameral" legislature: only one legislative body rather than two. It refers to its bills as "L 555"; the "L" stands for its one and only legislative body. The state legislatures and Congress are in completely separate systems; no bills go from one to the other.
When one political party controls one of the legislative bodies, and the other political party controls the other legislative body or the executive branch, then this is called "divided government." While some complain that it is harder to enact laws when there is divided government, others observe that divided government makes each side more responsive to the public. Competition is usually a good thing in bringing out the best in everyone.
Another term important in discussing legislative politics is "grassroots". The grassroots are ordinary citizens who volunteer their time to participate in politics, by speaking out, by emailing others, by attending political events, by putting bumper stickers on their cars or signs along the roads, by making phone calls urging others to vote, and by expressing their views to public officials on important issues. The grassroots are in contrast with the media, the political insiders, and the corporations; the grassroots care more about social values that affect their families and the future direction of our Nation. The grassroots are those who volunteer to help with and attend large political rallies. The Tea Party movement in recent years began with the grassroots.
Review from Last Week
Many of the answers to last week's homework were superb. But there was room for improvement. For example, keep in mind that:
- the legislative branch makes the laws
- the executive branch enforces the laws
- the judicial branch interprets the laws
The United States is governed by "Rule of Law." No one, not even judges, congressmen, or the president, is allowed to violate the law. But they are able to make, enforce, and interpret the laws, depending on which branch of government they are in.
A mistake made by a top advisor to President Obama after he was elected was to declare that now he "rules" America. Nope. A president governs rather than rules. The law is what "rules".
"1. Why is it important to participate in politics?"
In their answers, many students emphasized the need to be aware of what is going on with politics. But "participation" is far more than becoming knowledgeable and aware. It also requires informing others, volunteering time, and "getting the word out." It entails correcting misinformation and countering the deceit used by bad candidates. Participation means being proactive, just as exercise, a good diet, and going church consist of doing something rather than being merely a spectator or sports fan.
"5. If a police officer pulls over a car on the New Jersey Turnpike ...."
Police officers on the NJ Turnpike work for the state government, but most police officers work for local government (e.g., Newark, or Bedminster Township). No police officers work for the federal government. There are really three levels of government: federal, state and local, although the "state and local" levels are often grouped together.
"7. Explain what gerrymandering is."
Very few students earned full credit on this question. Gerrymandering is difficult to understand and even more difficult to explain! The key point is that most people vote Democrat or Republican in every election in a predictable away. Politicians know who those people (neighborhoods) are. State legislatures, not governors or Congress, redraw state and congressional legislative districts every ten years based on the Census, and by grouping certain neighborhoods into different districts this "gerrymandering" can increase the overall number of districts controlled by one side or the other. For example, if there are ten districts of 100,000 voters each, split 50/50 overall between Democrat and Republican, then random redistricting would result in 5 Democrats winning and 5 Republicans winning. But through gerrymandering Democrats can create 8 safe Democratic seats having districts that are 60% Democrat, and 2 safe seats that are 90% Republican, for a net gain of 3 seats for Democrats.
In this way a state that should be sending half Democrats and half Republicans to Congress among their congressional seats can cause its delegation to be mostly Democrats (in districts designed to have 60% Democratic voters) with only a few Republicans (in districts designed to have 90% Republican voters).
8. Question concerning sources of bias in polling
The main sources of bias in polling, leading to varying results, are:
- how the questions are asked (their phrasing, their order)
- who is asked the questions (likely voters, or any American)
Rasmussen polling is consistently more favorable to Republicans, for example, probably because his political polls typically ask questions of only the most likely voters. The most likely voters have a higher percentage of Republicans than the general public, because the general public includes many Democrats who vote only when they feel like it (or when labor unions repeatedly tell them to vote). The Fox News Channel likes having Scott Rasmussen on its show frequently because he gives results welcomed by the predominantly Republican audience of that cable channel.
Rasmussen is an exception, because most pollsters are Democrats and their results typically favor a position supported by Democrats.
Separation of Powers
A unique characteristic of the American system of government, as established by the U.S. Constitution, is the separation of powers. The Executive, Legislative, and Judicial branches are kept completely separate from each other in their decisionmaking. Each of branches acts as an independent "check and balance" against the power of the other branches.
The U.S. Supreme Court invalidates laws that tend to blur the distinction between the different branches. For example, a federal law was passed to give the president a "line-item veto" power, which would enable him to veto some parts of a bill while signing into law its remainder. Governors in many states, including New Jersey, have this power to veto provisions (lines) within bills without vetoing the entire bill. But the U.S. Constitution does not permit one branch of government to "pick and choose" from what another branch does. So even though the line-item veto power exists for many governors at the state level, it is unconstitutional at the federal level based on the U.S. Constitution.
In Canada, England, and nations in continental Europe, the leader of the nation is chosen by a majority of the legislative branch, known as the parliament. Far from being checks and balances on each other, the executive and legislative branches in other nations are intertwined. In the parliamentary system in England, the leader of the executive branch is a member of parliament, as are his Cabinet. But here, there is almost no overlap in jobs or activities of the different branches, and any attempt to merge the branches is unconstitutional. Presidents almost never go to "Capitol Hill" (where Congress is located in Washington, D.C.), and never attend a presentation at the U.S. Supreme Court building (located near Congress, as anyone who has been on the annual March for Life has walked past.)
From this separation of powers derives the concept of “checks and balances” on power that is unique to the U.S. Constitution. Each branch, to protect its own power, acts to limit expansions in power by the other branches.
Our Founders expected the legislative branch, Congress, to be far more powerful than the presidency and the judiciary. But over the years Congress has given up much of its power to the president and the courts.
Historians credit French philosopher Baron Montesquieu with the original idea for the separation of powers and the three branches of government, but a passage in the Bible may be the original source of this concept: "For the LORD is our judge, the LORD is our lawgiver, the LORD is our king." (Isaiah 33:22) Only the LORD can do the job of more than one of the three branches.
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.
All congressmen are elected on the first Tuesday after the first Monday in November in even-numbered years, and if there is a vacancy mid-term then there is usually a special election held soon afterward to fill it. One-third of the Senate is elected on the same Election Day used for electing congressmen.
The newly elected congressmen and Senators then take office about two months after Election Day, near the beginning of January.
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 Republican John Boehner.
The power of the House derives from its constitutional responsibility in drafting and proposing all spending bills.
Because the Republicans captured a majority of the House in the 2010 elections, the current Speaker of the House is a Republican rather than a Democrat.
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 53 senators who are Democrats (including two Independents who vote with the Democrats), so the Majority Leader of the Senate is a Democrat: Harry Reid.
The Constitution gives the following powers to Congress, each corresponding to a particular clause in Article I:
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. When Congress chooses not to regulate something, like purchasing goods from another state over the internet, then states are still prevented from trying to regulate it themselves - states cannot tax interstate commerce, only Congress can, under this Commerce Clause.
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 are many acres. Congress also runs the District of Columbia, which is not in any state.
Intellectual Property Power: Congress sets the laws for patents and copyrights, which are called “intellectual property” because they are abstract products of intelligence rather than physical property. (Although trademarks are considered intellectual property, Congress's authority to create trademark law actually arises under the Commerce Clause discussed above.)
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 the federal government. 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. But Congress could establish a special police department for the Post Office (called postal inspectors) because that is a part of its power to create a postal system and it is necessary and proper to have police enforce Post Office rules.
All laws passed by Congress must be based on one of its powers (specific clauses in the Constitution).
Federal Power is Limited
A fundamental aspect of our constitutional system is that the power of our federal (national) government is limited. It is easy to forget this because the media rarely mention this basic fact about constitutional system of government. State and local authority is unlimited (except by the Bill of Rights, which establish specific rights like free speech that no level of American government can infringe upon). But the power of the United States government is limited by what is given to it by the U.S. Constitution.
Here are some examples of what the federal government is without power to do:
- establish a public school in your neighborhood.
- stop someone for driving too fast.
- take children away from parents.
- prohibit or regulate homeschooling.
- pick up garbage every week.
- perform a marriage ceremony.
- establish the minimum age for the purchase of alcohol.
Can you think of additional examples?
Now you may be wondering why you sometimes hear presidential candidates mention issues that relate to some of the above examples. The reason is that the federal government has grown so large that how it spends money often affects the above issues, and almost every other issue. For example, federal spending does affect public school and homeschooling. Homeschoolers added a clever provision to the "No Child Left Behind" law, which prohibits public schools from accepting certain federal money if they require homeschoolers to take the same exams that public school students take. Several years later this helped block an attempt by Democrats in New Jersey to require homeschoolers to take the biased, atheistic public school exams every year. If New Jersey were ever to impose such a requirement on homeschoolers, then New Jersey would lose millions of dollars in federal funding, and some public school teachers would then lose their jobs. So New Jersey is not likely to interfere with homeschooling in this manner; public school teachers' unions would not want to lose jobs as a result.
How Laws are Made
The basic process for passing a federal law is as follows: A committee in the House of Representatives drafts a new statute (a "bill"), and typically holds a public hearing about the proposed law. Experts and members of the public are allowed to testify about the proposed law at the hearing, and their comments at the hearing ("testimony") becomes part of the legislative history for the law if it eventually passes, which can be used by courts in interpreting what the law means. Comments by legislators at the committee hearings, and when the bill is debated later on the floor of Congress (or a state legislative body, if it is a proposed state law), also become part of the legislative history.
For a bill in the House of Representatives (Congress), if the committee members vote in favor of 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 full vote by all House members. If it ultimately passes the full House, it then proceeds to a committee in the Senate, which may revise the bill 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 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 by the full Senate.
If the bill passes the Senate, then it is compared to the House version. If they are 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 then signs the bill within 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 (this is a “pocket veto”), then it does not become law. (A famous example of a 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. A pocket veto allows the president to quietly cause the veto of a bill without a great deal of negative publicity.) 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.
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 the ban on partial-birth abortion became federal law, with President George W. Bush's signature. Because President Bush would sign it, only a majority vote was needed in Congress to pass it.
The U.S. 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. Most congressmen do not even read the bills that they pass into law.
Senators like Ted Kennedy, the most powerful senator for decades until he passed away in 2009, 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 those who voted for the law.
The reports and statements by congressmen, and sometimes even testimony by others at the committee hearings, 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 all 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 true 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 date on which the political parties pick their nominees 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% in votes, 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 received a majority of the votes cast by the Electoral College.
When there is no run-off, occasionally 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 are quite rare.
"All Politics Is Local"
A famous -- and often overlooked -- observation about politics is this: "all politics is local." The media (television, national newspapers, and even the internet) tend to cover national personalities and issues, but it is at a local level (your own town, legislative district, or even state) where the most important political decisions occur. It is at the local level where an individual can have the greatest influence in making the community a better place.
The legislature is largely defined by local politics, and rightly so. In New Jersey each resident has two Assemblymen and one Senator representing him in the statehouse, and one member of the House of Representatives and two Senators representing him in Congress. Although both the House of Representatives and U.S. Senate are part of "Congress", the term "congressman" typically applies only to members of the House of Representatives. So your "congressman" is the elected official who represents your congressional district in the U.S. House of Representatives. He is elected every two years on Election Day, and you can have an influence on whether he is reelected or defeated, either in his political party's primary (held in early June in New Jersey) or in the general election in early November.
Due to gerrymandering, most congressional seats in New Jersey (as in most states) are "safe seats," which means one of the two major parties has an almost insurmountable advantage on Election Day. In other words, whomever the controlling political party nominates in its primary for the House of Representatives is likely to win the general election against the other party's candidate. But it may be possible to defeat the candidate in his party's primary election that nominates him in June, although it may take several election cycles (repetitive challenges every two years against his reelection) before succeeding at that.
Because more than 300 out of 435 House of Representatives are "safe seats" controlled by Democrats or Republicans, does that mean the "House" is always controlled by the same political party? No, because there are still 50-100 seats that are toss-ups on election day, and that is enough to tip the majority to one side or the other. Due to landslide victories by Republicans in 2010 in the "midterm elections" (elections in a year not divisible by four, such that there is no presidential candidate on the ballot), Republicans have a substantial majority in the "House" in 2012. But that control could be lost on Election Day.
Answer the first five questions, and then two of the remaining three:
1. What do you think are the six most important powers of Congress?
2. What prevents New Jersey from requiring homeschoolers to take public school exams each year?
3. Explain what fraction (approximately) of the U.S. Senate is elected every two years, and the reason why only some of the senators are up for election on Election Day.
4. Describe in simple terms how a "bill" becomes law at the federal level. (E.g., a congressional committee first considers proposed legislation ....)
5. Give an example not in the lecture of a power the federal government lacks.
6. What is "textualism", and do you think that "legislative history" should be considered when interpreting the meaning of a law? Explain.
7. Explain a difference between the political system in the United States and the one in England.
8. Which political party do you expect to win control of the U.S. Senate on Election Day this year, and why?
Extra credit (answer two of the following four questions):
9. Explain the role of committees in Congress, with actual or hypothetical examples.
10. The constitutionality of "ObamaCare" was upheld by the U.S. Supreme Court in June 2012 based on which clause(s) of Article I of the Constitution? Discuss.
11. Draft a new law that Congress would have the power to pass to give additional protection to homeschooling.
12. Which political party controls the House of Representatives today, and by what margin (approximation is fine)? E.g., is it controlled by Democrats by a 235-200 margin? What do you think the margin will be in January 2013?
You can post your answers at American Government Homework Two.