When examining the three branches of the federal government, we must remember the significance of Congress, which was discussed first in the Constitution, demonstrating its importance to the Founding Fathers.
The main role of any legislative body, including our Congress, is to make laws that govern our society. Congress does take on several other tasks, including an oversight of the executive branch, however its law-making duties are the most important.
Many Americans wrongly presume the three branches of government were meant to be co-equals. This presumption is incorrect, as Congress was seen as so powerful, it needed to be divided into two distinct bodies. James Madison noted as much in Federalist #51, writing, "... the weight of the legislative authority requires that it should be thus divided."
This separation of Congress into a Senate and House of Representatives is referred to as bicameralism. Other than acting as an intra-branch check against each other, separating Congress into two bodies helped solve the problem at the Constitutional Convention of representation within the law-making body (see: Connecticut Compromise).
The Senate and House of Representatives were created to be very distinct from one another. Any differences written into the Constitution about the two legislative bodies were done so with purpose, not arbitrarily. The House was intended to represent the "will of the people." In the American republic, the Founders were fearful of granting too much direct power to the people.
The one outlet for the people has always been the House of Representatives. In the original Constitution, it was the only governmental body directly elected by the people. The term of a House member is only two years, meaning a Congressman can be easily dismissed by his or her constituents if he or she is unresponsive to the desires of the people.
Members of the House must be 25 years of age (by the start of their term), have been an American citizen for at least 7 years, and live in the state they represent.
The Senate is different in several ways. It is important to remember that in the original Constitution, senators were chosen by their respective state legislatures (this changed with the 17th Amendment). The people of a state had no direct say in their representation within the Senate. This was done to provide senators insulation from public opinion. They would be able to make decisions based on the interests of the state as a whole, doing what is right without worrying about the influence of the public.Senators must be at least 30 years of age, have been an American citizens for at least 9 years, and live in the state they represent. A single term lasts for six years, and the terms of all senators are staggered so that approximately one-third of senators are up for re-election in any election year.
The difference in the qualifications reflects the fact that the Senate was to be considered the "upper house" in Congress, having a membership with more life experience than the House.
One of the biggest differences between the House and the Senate is the structure of debate for any bills being considered. Within the House, floor debate is strictly limited and in most instances, does not exceed 30 minutes for any one bill. With 435 members in the House, it would be extremely difficult to allow for each individual to debate any single issue on the floor.
The Senate has no such limit on their floor debates, which can continue indefinitely. With fewer members than the House, there isn't as much pressure to expedite debate. Also, it's inherently a good idea to allow for prolonged debate to avoid passing any potentially poor laws. The negative aspect of endless debate is that it can be used as a stall tactic.
Senators of the minority party will hope to prevent a bill from coming to a vote by never ending debate. When they stall in such a fashion, the tactic is known as a filibuster. The idea behind continuing debate is to frustrate the majority party within the Senate so they will promise not to bring a certain bill to a vote before the entire body. When engaging in a filibuster, a senator must continue to stand and speak or risk losing control of the floor, however, he or she may talk about anything they choose (including topics not related to the bill at hand).
As recently as September of 2013, Senator Ted Cruz (R-TX) filibustered while the Senate was considering a resolution to continue the funding of the federal government's day to day operations. His speech, which lasted over 21 hours, was meant to decry the Affordable Care Act and ask for it to be defunded.
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| Sen. Ted Cruz during his 21 hour filibuster |
Though some senators follow through with the filibuster, they can merely threaten to do so by issuing a hold, which is notifying other senators of the intent to filibuster. That tactic in itself can cause the death of a bill. Though the filibuster is a powerful weapon of the minority party in the Senate, debate can be ended on any bill by invoking cloture. A cloture vote requires 3/5th of senators (60) to agree to end debate on a bill. Because of the close split among the two major parties, neither side typically has the 60 votes necessary to break a filibuster.
Filibusters can prove useful for the minority party in the Senate, but they also delay important business that needs action. If this is the case, then why haven't parties altered the Senate rules to end filibusters? Because both parties understand that regardless of the current numbers in the Senate, they will one day be in the minority, and they will want the ability to block legislation they deem too radical, or inappropriate.
Thought filibustering is permitted within the Senate, there have been some changes to the process, most notably in November of 2013, when Senate Majority Leader Harry Reid (D-NV) led the Democratic majority in altering Senate rules to prohibit a filibuster on nominees to the executive branch and federal court judges (except the Supreme Court). This change in filibuster rules has been referred to as the "nuclear option". This term has been applied to any rules change in filibustering because of the fear that altering rules of debate would lead to all out party warfare between Democrats and Republicans (and that, in theory, would cause massive gridlock in Congress).
Impeachment
One of Congress' more interesting roles is its ability to impeach public officials and then potentially remove them from office. In the event that an official is involved in any wrongdoing that might warrant a removal from office, both houses of Congress play a part.
To impeach an official simply means they are brought up on charges to determine if removal from office is an appropriate measure. An impeached official is not necessarily a guilty official. To bring charges against an official, the House of Representatives must vote by a majority to impeach. Once the House has voted to do so, the second phase of the process involves a trial taking place in the Senate, where each member there acts a juror. After evidence is presented, members of the Senate cast a guilty or not guilty vote with a 2/3 majority needed for conviction and removal from office. This process calls for a few significant questions to be asked:
- What constitutes an impeachable offense? According to the Constitution, "... treason, bribery, or other high crimes and misdemeanors." Treason and bribery are fairly straight forward, but what makes up a 'high crime' or 'misdemeanor' has caused a much debate. Ultimately, the House and the Senate have the final say on what an impeachable offense is or is not.
- Who can be impeached? The Constitution states, "The President, the Vice President, and all civil Officers of the United States." Again, the Constitution leaves some vague room about who can be impeached.
- Have any presidents been impeached? People are naturally curious about the impeachment process because it happens so infrequently. The two major instances of impeachment happen to have involved former presidents -- Andrew Johnson and Bill Clinton. The most recent impeachment was that of Clinton in 1998-99. Richard Nixon would most likely have been impeached and convicted for his role in the Watergate Scandal, had he not resigned from office (presumably to save himself from further embarrassment).
- So, what was the story about Clinton? Clinton was being investigated for several alleged abuses of power, including misuse of FBI files, covering up a real estate scandal from his days as governor of Arkansas, and misconduct during a lawsuit by a woman claiming she was sexually harrassed by Clinton. During the course of that investigation, it was discovered that Clinton had an extramarital affair with Monica Lewinsky, a White House intern. When Clinton was asked, under oath, about any sexual relationship with Lewinsky, he denied the allegations. When evidence became known to the public that rumors of the affair were true, a Republican controlled House voted to impeach the president on counts of perjury and obstruction of justice.
Though impeached, Clinton easily survived a trial in the Senate, where Republicans could not muster the 67 votes needed to remove the president from office.
The roles of the House and Senate in the impeachment process are indicative of the importance of each. If the public were to insist upon the impeachment of a public official, the House could respond that desire since they are the people's branch. Also, the Senate would then be able to render a decision about the removal of that official without as much pressure from citizens (since they are farther removed from public opinion). It should be noted that a high threshold exists for removal (2/3 majority) to prevent impeachment from being used as a political weapon.
The House and Senate have other unique powers that only they can exercise. The House must initiate all revenue (taxing) bills. This stems from the principle John Locke set down in his Second Treatise of Government, where he advocated that a legislative body never raise taxes without the consent of the people.
The Senate has a distinct powers also, since it is considered to be the 'wiser' body within Congress. They have the "advise and consent" role, where they examine the judicial and executive appointments made by the president and vote to confirm those appointees with a simple majority vote. Most executive appointees are confirmed with little opposition unless some serious flaw exists within the appointee. However, appointments to the Supreme Court and other federal judgeships receive careful examination from senators since those jobs have lifetime tenure.
The Senate also must ratify any treaty negotiated by the president, consenting with a 2/3rd majority. Most treaties are ratified with ease, since foreign policy is seen primarily as a task of the president and executive branch.
Congressional Representation
At the Constitutional Convention, one of the biggest problems was determining how many representatives in the legislative body each state would receive. The Senate simply allots 2 members to each state. The House of Representatives varies, based on population. Originally, states were given one representative for every 30,000 inhabitants. However, modern population numbers would have made the number of representatives too large to function properly, so the number of members in the House was fixed at 435 by federal law.
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| Consider: why would reapportionment affect national political parties? |
Question to consider: why are states concerned with reapportionment?
Once a state knows the number of representatives it will have, each individual state is responsible for drawing congressional districts to correspond with that number. The process of redistricting is done by that state's legislature. When redistricting occurs, those in power are often tempted to redraw the congressional district lines in such a way that is beneficial or hurtful to a person or group. This sort of activity is known more formally as gerrymandering (so named after Elbridge Gerry). When states attempt to gerrymander, these changes can be challenged in the court system and are subject to being redrawn.
One significant case dealing with redistricting occurred in Tennessee during the 1960s, when the Volunteer state hadn't bothered redrawing district lines since 1900, resulting in districts with lopsided populations. Charles Baker filed a protest on behalf of citizens of the state, noting that 14th Amendment Equal Protection rights were at stake. The state of Tennessee (and Secretary of State Joe Carr) argued that congressional redistricting was not an issue that could be resolved in the courts. Ultimately, the decision in Baker v. Carr was in favor of Baker, that indeed, 14th Amendment rights were being violated. The Supreme Court's ruling meant that populations of congressional districts had to be similar (though not exactly the same). Congressional districts must all be contiguous and compact.
Another key question about gerrymandering ended up being decided by the Supreme Court in 1993, when North Carolina attempted to gerrymander to benefit a minority group. The state drew a "majority-minority" district (where the majority of people were a minority). However, the district was such a bizarre shape that it became apparent to everyone the district was made to benefit the black citizens of North Carolina. Five citizens of the state filed suit in federal court, claiming the state had no right to gerrymander, even if it was to benefit a minority group. Doing so constituted a violation of the 14th Amendment (again, the Equal Protection Clause) and the Voting Rights Act of 1965. Ultimately, the Supreme Court ruled in Shaw v. Reno that North Carolina was wrong to gerrymander the district, because it was based solely on race. States could take race into consideration as one of many factors, but not the only one.
The Incumbency Effect
There are reasons we continually see the same faces again and again in Congress. Their constituents keep re-electing them! However, members of Congress have significant advantages that make it easier for them to be re-elected with little opposition.
For instance, incumbents have what is known as the franking privilege. This allows a sitting member of Congress to send out mail to his or her constituents at the expense of the taxpayer. This saves valuable financial resources for other activities. Franking, however, cannot be used for overt campaigning, but only for communication purposes with a home state or district.
Members of Congress are also in the unique position to provide services and favors for the people in their home districts. One such way in which Senators and Congressmen help people is through casework, doing favors for specific individuals that these people wouldn't be able to do on their own. Perhaps a a senator helped someone find a job, or secured funding for a road being paved in a small town. These favors serve the people and typically, they reward that member of Congress by ensuring the loyalty of a potential voter.
Members of Congress also help their constituents on a large scale basis by obtaining pork-barrel legislation. This refers to any legislation that contains money or some type of special project devoted to a congressman's home district or state. Securing this sort of money for development helps generate good will from the citizens, who enjoy better services and way of life. Anyone who seeks to challenge an incumbent doesn't have the power or authority to secure these types of benefits for the general population.
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| 'Pork' can cause added waste to the federal budget |
Challengers also face serious obstacles when attempting to raise the funds necessary to seriously contend with an incumbent. Individuals, political action committees (PACs), Super PACs, and other outside groups spend large amounts of money in the hopes of gaining a friend in Congress. When they donate money or spend money on behalf of a candidate, they do not want to spend money on someone who doesn't have much of a chance to win an election. When these people and groups see the advantages that incumbents hold, they overwhelmingly give to them because these groups care about advancing their own agendas. What people don't realize is that when they give in such a lopsided fashion, they only increase the advantage of incumbents: they win because they have more money, and they have more money because they keep winning.
So, if they have so many advantages, how do you unseat an incumbent? A few possibilities exist. Incumbents often become embroiled in scandal, and this makes them vulnerable. Former Congressman Anthony Weiner was driven from the House of Representatives after he posted lewd pictures of himself on social media. The backlash against him was enough to force his resignation from Congress. Had this not transpired, Weiner would most likely still be representing the 9th District of New York, a seat he held without serious challenge from 1998 to 2011.
Sometimes incumbents can be the unfortunate victims of poor timing. When the nation's economy suffers or the majority party isn't seen as governing within the needs and wants of the people, voters can be prone to take our their frustrations on incumbents. The mid-term elections of 2010 are a classic example of bad timing for incumbents. The first two years of the Barack Obama administration did not rebuild as much of the economy as voters had hoped for, and many Americans were unhappy with the controversial Affordable Care Act. Democrats controlled the presidency and both houses of Congress, and as a result, they paid a heavy price in 2010. They lost 6 seats in the Senate, barely retaining a majority. In the House, the Democrats lost an astonishing 63 seats, which gave Republicans control.
Congressional Leadership
The House and Senate both have key leadership positions worth discussion. In the House, the most important position is the Speaker of the House. This position comes with great power, including the ability to preside over debate, and determining who will and will not speak during discussion of bills. Although this power is at the discretion of the Speaker, they often designate someone to act in their place due to the other duties required of the Speaker.
The Speaker exerts more of their authority in other capacities, including providing valuable input on other leadership positions with the House, determining committee assignments, and scheduling of the overall agenda of legislative sessions along with the daily agenda.
The Speaker is chosen by the House any time a new Congress is seated (every two years), however, there is typically no change to this position unless one party has ousted the other as the majority within the House. Because the House members vote on who receives the Speaker's position, the majority party always wins this seat, but that is not a requirement.
Another key position with the House is that of Majority Leader. This individual typically assists the Speaker in his or her duties, while also negotiating with the Minority Leader to work out potential compromises to legislative conflict. The Majority Leader is also given the task of being responsible for scheduling the House Floor's legislative calendar and management for all House committees.
In addition to the floor leaders, each party also has a leadership position called the party 'whip'. The job of these individuals is to maintain party discipline and round up votes on issues to the party. This can prove to be a particularly difficult task since many members of Congress put their constituents as the first priority, and the very nature of American political parties as 'umbrella' groups often means a wide range beliefs within the Democratic and Republican parties. The whips for each party work to offer incentives to their party members for their loyalty and support, while also threatening some form of punishment if necessary.
In the Senate, there's a difference in the leadership roles. Technically, the Vice President of the United States is given the position of President of the Senate. However, this position holds very little actual power. The President of the Senate has the ability to preside over Senate debate if he or she so chooses, however, this job is considered tiresome and tedious. The President of the Senate does hold one unique power. Should the Senate ever have a tie vote in legislative concerns, the President of the Senate would cast the tie-breaking vote.
Because the President of the Senate never graces the chamber with his presence, another official exists to take his place. The Senate has a President Pro Tempore ("temporary president"), who has the responsibility of presiding over the debate and motions of the day, but he or she typically passes this job to a newer senator. The President Pro Tempore doesn't hold any real authority, but does have a spot in the presidential line of succession after the Speaker of the House. Traditionally, this role in the Senate is given to the longest serving senator of the majority party.
The real power position within the Senate is that of Majority Leader. The party leader holds responsibilities and authority similar to the Speaker of the House. The Majority Leader determines many leadership positions and sets the legislative agenda for the Senate. Committee assignments and chairs also fall within the leader's purview.
The Senate also has a Minority Leader and party whips, just as the House does. They serve the same functions and roles within the Senate.
Committees and their work
Because the work of Congress is so complex and varies in the large number of policy areas that are affected, its tasks are compartmentalized, as they would be with any other organization. These committees are responsible for examining and critiquing potential laws, along with various other tasks. Multiple types of committees exist as well.
The most important type of committees in Congress are called standing committees. These committees exist on a permanent basis and conduct the bulk of the legislative work. Though all standing committees are significant, a few of these committees are more important than the others. It's also important to distinguish that the House and Senate have different committees. A few cover similar policy areas, but typically the House is more focused on domestic policy, and the Senate emphasis is on foreign policy.
Within the House, four standing committees are extremely important. These are:
- House Rules Committee - This committee is particularly powerful because when a bill (proposed law) leaves any committee, it must first go to the Rules Committee before it can go to the floor for debate. It's the final stop before the entire House hears the bill. Also, this committee determines if open or closed rules will be placed on a bill during debate. "Open rules" refers to the fact that during debate, any House member may offer amendments to the bill. "Closed rules" means that only a member from the original committee who held the bill may offer any changes or amendments to the bill.
- Ways and Means Committee - This committee deals with revenue bills, or taxation. Because taxation is a policy that affects everyone in the country, members of the House see this as a committee on which they want to serve.
- Appropriations Committee - Once the government has money from citizens, this committee considers bills that determine how that money will be spent. Members of the House want to be on this committee because they can often use that position as a way to attach sections to bills that benefit their home state or district. (This committee is an ideal place to attach 'pork' to a bill.)
- Energy & Commerce Committee - Because so many aspects of our society involve either energy and commercial activity, this committee often handles important bills that allow members of the House to make a name for themselves and affect significant policy.
Within the Senate, there are four very important committees. These are:
- Appropriations Committee - this is just as significant in the Senate as the House, and for the same reasons.
- Finance Committee - This committee takes on bills that correspond to a large number of financial issues, which means many of their decisions will affect a large number of businesses and the economy as a whole.
- Armed Services Committee - The responsibility of examining bills related to the very large American military falls under the authority of this committee.
- Foreign Relations Committee - Government treaties and other legislation pertaining to the world's nearly 200 other foreign nations falls under the authority of this committee.
Standing committees are significant in their stature, but each house of Congress also has what are called special or 'select' committees. These committees are not designed to be permanent, but typically address a policy area that will still take multiple sessions of Congress to finish their task. For instance, a special committee was formed after Hurricane Katrina hit the United States in 2005. The committee aimed to create legislation that would allow the nation to be more prepared in the event of another emergency of that magnitude. Currently, the House has a special committee responsible for investigating the attacks on the American consulate in Benghazi, Libya. These committees will have no need for becoming permanent, but they are important enough issues to form a temporary committee dedicated specifically to that subject.
Also, Congress occasionally forms joint committees, which are committees that include members of both the House and the Senate. These committees are formed to consider overlapping policy areas between the two houses.
Due to the reality that both houses of Congress must pass the exact same version of a bill before it can become law, sometimes conference committees must be formed. These committees exist only to iron out any differences between differing versions of the bills passed by the House and Senate. Once they resolve those differences, the conference committee will cease to exist.
Because the committee policy areas are still very broad, each committee is further broken into various subcommittees to handle more specific issues. Once a bill is introduced, a subcommittee will examine a bill before bringing it to the entire committee.
So, what exactly does a committee do?
Committees have three main tasks: legislation, oversight, and investigation. Analyzing legislation is the most important task they have. When a member of Congress introduces a bill for consideration to become a law, that bill is sent to the appropriate committee (depending on its topic).
Once a bill is routed to a committee, the members of that committee consider the wording of the legislation and engage in what's called a markup session, where editing of the bill is completed. Once any editing of that bill occurs, the members of the committee will determine what sort of recommendation the bill receives when it goes to the floor for debate. The committee gives a recommendation to either pass or do not pass the bill. Typically, these recommendations are followed by the entire house as a whole group (unless they deal with a controversial policy issue).
For instance, when the House Committee on Agriculture gives a recommendation to pass a bill that will provide money to farmers for irrigation projects, the rest of the House will typically vote to pass that bill because they trust the expertise of that committee. Members of Congress do not have time to investigate each of the 10,000 proposed laws proposed during each year. They must rely on committees to make solid decisions.
Within each house, the majority party has an advantage in committees because the membership of every committee is proportional to the membership of the entire House or Senate. So, if Republicans hold 55 seats in the Senate, while the Democrats hold 45, then every committee within the Senate will be made up in a fashion similar to those percentages, where 55% of its members are from the GOP, while 45% would be from the Democrats.
Also, each committee has a chairperson, who has the authority to direct the committee's affairs. Typically, the chair of any committee is awarded to the senior most member of the majority party on that committee, regardless of their abilities or skills. The chair has the authority and power to set the agenda for his or her committee, which means they may delay action on bills they do not wish to see enacted. It is very important to note that most bills will die in committee, and they will probably died from neglect. Bills that do not become law by the end of a session of Congress die, so if a committee or its chair do not like the bill, they simply do nothing with it. The real work of Congress takes place in its committee rooms.
During the editing / markup stage of committee work, members of a committee may add what are called 'riders' to some bills. These are any amendments added to a bill that usually do not pertain to the actual topic of the bill. Riders are attached to a bill to often ensure its defeat, and sometimes are referred to as 'poison pills.'
Imagine the House was considering a bill for funding a new type of military aircraft, which was controversial because of its cost. A member of a committee may attach a rider that stated if the bill were passed, financial cuts would have to be made to other existing military programs. The supporters of the bill would be frustrated because they do not want cuts to any programs. They want the finances for a new military aircraft. This type of bill wouldn't pass because of the rider added.
If a bill does escape committee, it would then travel to the floor to be voted upon by the entire House or Senate. To be passed, it needs a majority of the members present to vote in favor. Completing the process in one house means it would have to venture through the process in the other house.
Once a bill has been passed by both houses of Congress, the President would have the responsibility of signing that bill into law or vetoing it, which would kill that bill. However, the President's veto can be overridden with a 2/3 majority in each house of Congress. Because of the difficulty having 2/3 of both houses of Congress agree on anything, few vetoes are ever overridden.
How does a member of Congress decided how to vote on bills?
Several different factors attempt to influence a member of Congress to vote in a particular manner. Which influences are the most significant?
Members of Congress are often swayed by other members of Congress. On non-controversial issues, members of Congress engage in what's called logrolling. This is a form of trading votes between lawmakers where you vote for the bill I am proposing and I will vote for a bill you propose. The concept of logrolling can frustrate Americans because they believe that their representatives should vote for or against a bill based on its merits, not as a bargaining chip.
Any lawmaker must also consider the needs and wants of their constituents when casting a vote in Congress. The people that a lawmaker represents hold the final authority on whether that person returns to Congress in the future, so their opinions must be considered.
Also, a member of Congress will also consider their own personal convictions and beliefs in determining how they should vote on a bill. Many senators and Congressmen take the stance that they were elected into office for a reason, and people have placed them in a position of trust because of their decision making abilities.
Interest groups will also attempt to sway a member of Congress, and they often hire lobbyists to achieve that end. These groups tend to have the most success in swaying lawmakers when the issue is small, and narrow in scope.
The two major political parties play an important role in lawmaking as well. The Democratic and Republican parties have their own specific agendas and will use party leadership to exert influence over the rank and file members of their party in Congress to achieve their goals.
Finally, the President of the United States will sometimes attempt to win over key members of Congress to help achieve his or her personal agenda.
The two influences that have the most effect on members of Congress tend to be their own convictions and the needs and wants of their constituents. This has led to the argument among political scientists about whether a member of Congress should take on the role of a delegate, or of a representative.
In the end, when lawmakers are pressed to make a decision, they tend to bend towards the will of the people.
