The ability of Congress to set the agenda

                In many instances, Congress has the ability to set the political agenda. This is more noticeable in the domestic realm, in which the powers of the legislative branch are greater vis-à-vis the executive than in the realm of foreign policy. Moreover, Congress alone does not set the political agenda. Whilst Congress represents public opinion and might therefore push forward an agenda in tune with the American people, it may also fail to adequately represent the wishes of the people. The executive branch can of course set the agenda, as too can the judiciary in an indirect manner via a landmark constitutional ruling such as Roe v. Wade (1973). State legislatures may also shape the political agenda, along with interest groups and in a broader sense public opinion itself. However, the focus here is purely upon Congress.

                The ability of Congress to set the political agenda has been curtailed by the inability of the two parties to reach a bipartisan position. On many occasions, Republicans and Democrats have put political point-scoring over the need to work together. There are few better illustrations of this problem than the budget. The power of the purse is always of major importance in any political regime. Rather than seeking a compromise position, Congress has been characterized by obstructionism rather than compromise.

                The legislative branch of government has a wide range of powers available in order to shape the political agenda. However, it has been undermined by ideological polarization. By way of contrast, the executive branch of government has been able to promote their agenda via executive orders (as was the case in January 2016 over gun control), press conferences, signing statements and keynote speeches. Equally, the political agenda is shaped to some degree by the judicial branch. In recent years, there have been landmark decisions concerning gun control (DC v. Heller (2008)), campaign funding (FEC v. Citizens United (2010)), health care (NFIB v. Sebelius (2012)) and gay marriage (US v. Windsor (2013) / Obergefell v. Hodges (2015)). Although the Supreme Court does not necessarily seek to shape the political agenda, it will invariably bear relevance as a consequence of the judgment reached. It should also be recognized that the ability of Congress to promote a particular agenda can be thwarted by a judgment taken by the Supreme Court. For instance, the Citizens United ruling effectively dented the impact of the McCain-Feingold Act in regards to campaign finance.

It must also be noted that state legislatures can promote an agenda given a sufficient level of political will. During the 1990s, there was a groundswell of opinion amongst many state legislatures for a balanced budget amendment to the Constitution. Although it was ultimately unsuccessful, the issue was pushed forward by the state legislatures (and eventually adopted in several of those states). Congress also played a key role in this particular area. Interest groups also promote various agendas, particularly the most powerful such as the NRA in regards to gun control and the AIPAC / ADL in regards to America’s stance in the Middle East. Public opinion also has an impact upon the political agenda, with members of Congress taking up a particular cause in order to reflect what the people want. 

The prestige of the two chambers

                Following on from the previous post, it must be noted that members of the upper chamber hold a greater level of prestige than their counterparts in the House. There are several points one could put forward to support this argument. Firstly, members of the Senate represent an entire state. In contrast, a member of the House may be one of several within that particular state (particularly larger states such as California and Texas). Secondly, Senators serve a longer term and are by definition one of a hundred. It must also be noted that a member of the Senate is more likely to chair a committee (or a sub-committee) or hold some leadership post than a member of the lower chamber.  

                Members of the Senate also hold a greater level of name recognition than members of the House. Indeed, some members of the Senate have a nationwide profile like John McCain and Harry Reid. The Senate also holds the more significant exclusive powers. However, the clinching argument must be that the Senate is seen as a recruiting ground for presidential and vice-presidential candidates. For instance, the Democrats have nominated a Senator or ex-Senator as their vice-presidential candidate in fifteen out of the last sixteen elections. It is hardly a coincidence that members of the House will frequently seek election to the Senate (as in the recent case of Tammy Baldwin and Jeff Flake).

                Before we leave the question of which chamber is the more prestigious, it should be noted that both chambers have equal powers over the passage of legislation and constitutional amendments. Members also receive equal salaries. However, no-one could seriously claim that the House is more prestigious than the Senate. Even the character of debate within the upper chamber is often of a higher quality than the more partisan lower chamber; although the tactic of filibustering can negate this point on those occasions when it is used.

The role and powers of the two chambers

                In theory at least, the two chambers of Congress have broadly equal powers. This argument is supported by the fact that both chambers hold a number of joint powers. However, they also hold a series of exclusive powers (such as the aforementioned ‘advice and consent’ powers in regards to the Senate). In this area, the upper chamber is the more powerful of the two chambers – albeit with caveats to add. In order to understand the role of powers of the two chambers, we need to begin with the joint powers held by the House and the Senate.

                Of the five joint powers, perhaps the most important is that both chambers are involved in passing legislation. No bill can become law without passing through both chambers. Secondly, both chambers play a role in the scrutiny of the executive and the judiciary. It should be self-evident that both the legislative and scrutiny functions are of major significance within any law-making body. Thirdly, both chambers play an equal role in the process of constitutional amendment. Since the 1990s, most amendments have derived from the House. The Senate however has usually rejected such proposals, notably the balanced budget amendment in 1997 which missed out by just one solitary vote. Both chambers also play a role in terms of impeachment, and over the power to declare war. In all of these five cases, no one chamber is superior to another.

                In terms of exclusive powers, one can begin to identify the greater significance attached to the accurately named upper chamber. In regards to passing laws and Treaties, the Senate can ratify or reject Treaties signed by the President. The House has no jurisdiction over this area of American foreign policy. In contrast, the House can instigate money bills. However, this is shaped to a large extent by the administration itself. In terms of impeachment, it is the Senate that conducts the final vote on whether or not to remove an official from office. In contrast, the House merely brings forth the charge against the particular member of the judiciary or executive branch. Moreover, only the Senate can offer advice and consent to the executive branch.

                There is a slight counter-argument to consider in regards to the President and the veep. In this area at least, the House plays the dominant role. Only the lower chamber can elect the President in the admittedly rare event of a deadlock in the Electoral College. In the same situation, the upper chamber can elect the vice-president. On balance therefore, it is clear that the Senate is the more prestigious of the two. One can see evidence for this in the greater stature of Senators in comparison to members of the House. Being a member of the upper chamber confers a degree of respectability to a potential presidential nomination that being a member of the House simply does not.

The power imbalance between the two chambers may well be reflected in the actions of its members. House members focus more upon the needs and opinions of their constituents, whereas Senators develop a more national and in some cases international outlook. There are in any given congressional session a number of Senators with presidential ambitions. Inevitably, they will seek to demonstrate their knowledge of and insight into foreign policy matters. In order to deepen our understanding as to why, we must remind ourselves that politics is self-interest dressed up as principle. Whereas a member of the lower chamber will rarely gain plaudits from his constituents for being focused upon foreign policy, a Senator can look more presidential via raising foreign policy matters. As such, the Senate adopts a different outlook to the House over American foreign policy.

It is perhaps worth noting that there has been little call to change the status quo concerning the two chambers. Whilst a number of liberal democracies have openly discussed the possibility of reforming their bicameral system, perhaps via closing a chamber or granting significantly greater powers to one of those chambers; this has not been an issue in the states. The last major change occurred via the seventeenth amendment, when members of the Senate were first elected over a hundred years ago.

Advice and consent

                According to Article 2 Section 2 of the Constitution, the Senate has the power to advise the President and give their consent to appointments made to the executive and judicial branch of government. The Senate must also give their consent to any international Treaty signed by the President. In all cases, advice and consent powers act as a check upon the power of the Head of State. However, the intentions of the founding fathers must be placed into the context of how politicians act. The partisan atmosphere of Congress makes the whole process of appointment needlessly cumbersome and subject to political posturing rather than reasoned advice from members of the upper chamber. Whilst the framers of the new Republic were prone to underestimate the need for efficiency, it's the actions of politicians that should be blamed for legislative-executive gridlock rather than our founding fathers.

                Of the two chambers, the Senate has traditionally been viewed as less partisan. It was originally created to act as a brake upon populist measures from the House, and until 1913 Senators were not actually elected. Some of that more detached atmosphere remains, but as with much else in Washington DC; the poisonous atmosphere of partisan politics has undermined its whole approach. This is particularly notable when a nominee is put forward for the Supreme Court. The entire process has become far more politicized since the 1980s, with questions framed with the clear intention of seeking to identify the nominee’s ideological leanings. There is also a predilection towards ‘gotcha’ questions that play to the gallery rather than meeting the more noble intentions of the founding fathers.

                There is of course a contrast to be made between unified government, and divided government. Under the former, the nomination process is often straight-forward. This applies even when a nominee is put forward for the Supreme Court. However, given the level of party discipline within American politics it is often necessary for the President’s party to hold a supermajority of around 60 Senators. That way, any potential rebellion from their own ranks could be circumvented. Under divided government, the whole process can become acrimonious and long-drawn out. Once again, the Senate Judiciary Committee offers perhaps the clearest illustration of this point. In the early-1990s, the nomination of Clarence Thomas was so bitter and personal that he compared it to a form of “high-tech lynching.” That said; even the President’s own party can effectively reject his nomination for the highest judicial court in the land. In 2005, Harriet Miers was eventually withdrawn by George W. Bush after concerns were raised by Republican Senators about her lack of legal expertise (although the real reason may well have been her moderate views on abortion).

                It should hardly surprise the reader that a nominee put forward by the President is more likely to gain consent from the Senate during a period of unified government. Taking two recent examples, both Elena Kagan and Sonia Sotomayor faced little objection from a Democrat-controlled Senate. However, the Obama administration has found it more difficult to gain consent from Congress since the Democrats lost their supermajority in the upper chamber back in 2010. For instance, the President was forced to withdraw his initial preference for Secretary of State Susan Rice as part of an intricate bargaining process between the two parties.

                The American system of governance is structured in such a way as to effectively enable a party to derail or slow down the nomination process during divided government. This power may well be used to score political points, although it can of course serve a more worthy purpose in terms of checking the power of the President. Senators from the opposing party do of course have every incentive to cause trouble for the Head of State. For instance, they may well increase support for their own party or even strengthen their own standing within that party. However, few things in politics can be said with absolute certainty. An obstructionist platform can easily backfire and make the opposing party to the President look petty. For example, in 2013 the GOP lost public support due to the shutdown strategy.

                For all the problems facing the President as a result of advice and consent powers, he rarely faces difficulty nominating members to his Cabinet during the early stage of his presidency when his political capital is relatively high. For instance, those Senators elected from his own party may owe a political debt to him via the coattails effect. Alas, this level of political capital drains away during the second term; particularly during the lame-duck stage of his presidency. Having said this, the last nominee to the Cabinet rejected by the Senate occurred in the early stages of Bush senior’s presidency. John Tower was rejected for the post of Defense Secretary on the basis of his personal life, and his relationship with a defense contractor.

                In terms of international Treaties, the Senate can once again limit the power of the President. Under unified government, this rarely occurs. The last time the Senate refused to ratify a Treaty signed by the President when the upper chamber was controlled by his own party dates back to 1935. Refusal to ratify a Treaty can certainly undermine the President’s authority, and it remains one of the more effective checks held by Congress within the realm of foreign policy. This also bears wider resonance for the imperial-imperiled debate concerning the power of the President.

Why is it so difficult to pass laws?

This question may well be obvious from the previous post! However, for the sake of clarity one can identify several reasons as to why it is so difficult to pass legislation in Congress. Perhaps the most important reason is that Congress is presented with more bills than it can cope with. In a typical session of Congress anything up to 14,000 bills are introduced but only 2% to 4% actually make it onto the statute books. Secondly, it is relatively easy for a Senator (or group of Senators) to talk down a bill. Although there is a gentlemen’s agreement between the parties to limit the use of the filibuster, figures such as Ted Cruz (twenty-one hours over Obamacare) and Bernie Sanders (eight hours over the stimulus package) can engage in filibustering.

Thirdly, power within Congress is largely decentralized. As such, party leaders have limited powers. Party discipline is relatively weak because party leaders have very few sticks or carrots at their disposal. Another point to consider is the problem of divided government. This can result in partisan point-scoring and therefore a more cumbersome legislative process. For instance, during the 112^th Congress House Republicans filed over 20 pieces of legislation containing the word ‘repeal’ in the space of just twenty-four hours. Given the parameters of the American system, all a party needs is control of one chamber to effectively slow down the legislative process.

Another point to consider is that both chambers possess roughly equal power. If one chamber was predominant, the legislative process would undoubtedly be more straight-forward. The fact that the whole legislative process is dominated by lengthy procedures and archaic language such as non-germane amendments, quorum calls, sequesters and supplemental appropriations does not help to quicken matters either. For all its impressive surroundings, Congress is an antiquated system indeed.

The law-making process

To become law a bill must pass through seven stages during a congressional session. As one might anticipate, the first reading is simply a formality. There is neither a debate, nor a vote. The first reading is simply a statement of intent. It is the second stage that is the most important of all. At this point, a bill is referred to a standing committee in both chambers. A significant number are simply pigeonholed with little or no chance of receiving sufficient time in the nation’s legislature. Even if a proposed item of legislation goes through, it can be significantly amended by the members. As policy specialists, they have full power of amendment and what comes out of this ‘sausage-making process’ is largely in the hands of those in the committee. Once the committee hearing is over a mark-up session is held, and the committee report is then issued. This will summarize its aims and outline a review of the amendments made. It will also include an estimate of the cost of implementation and a recommendation for future action to be taken by the full chamber.

                The next stage refers to timetabling. Each chamber deals with the inevitable legislative log-jam. The Senate insists upon a unanimous agreement between the majority and minority leaders. In contrast, the House deals with the timetabling stage via the House Rules Committee; known informally as the ‘traffic cop’ of the lower chamber. If the House Rules Committee chooses not to give a rule to a popular bill, members of the House may resort to the discharge petition. If an absolute majority is gained, the bill is discharged and comes automatically to the House floor for debate.

The main arena for debate occurs during the fourth stage (sometimes called the second reading). Most bills are debated via the Committee of the Whole House where each member of the chamber may take part in proceedings. Further amendments can be made and votes are taken on both the amendments and on the entire bill. A simple majority is required for the bill to proceed to the next stage of the legislative process. Votes are taken either on the basis of a voice vote (for non-controversial items) or a recorded vote. In the Senate members can of course filibuster – although that can be halted via a cloture motion.

The final opportunity to debate the bill occurs during the third reading. This stage is likely to be brief if merely a few amendments were made during the second reading. If however significant and numerous amendments were made then the third reading may take some period of time. A further vote is taken at the end of the third reading. As previously mentioned, conference committees are merely an optional stage. A bill may go back and forth between the two chambers until agreement is reached. This is more likely to arise when one party is in control of the lower chamber, and the opposing party is in control of the Senate. The frequency of conference committees has grown due to the trend towards ideological polarization.

During the final stage of the legislative process, the bill is sent to the White House. The President can either sign a bill into law, use his power of regular veto or may leave the bill on his desk. In the case of the latter such bills will become law without his signature within ten congressional working days. If the President uses his veto then Congress is left with three options. Firstly, Congress can amend the bill in accordance with the demands of the President and return the bill back for his signature. Secondly, they can override the veto provided they can secure a supermajority in both chambers. Thirdly, Congress may accept the President’s position as it is. The President may also use the threat of veto in order to make Congress reconsider. It must be acknowledged here that the President may well seek to score political points when making such a threat.

Pork-barrel politics

Pork-barrel politics refers to the appropriation of government expenditure by elected representatives in order to directly benefit their constituents. Regardless of their political colors, members of Congress routinely support programs that benefit their electors in some way. For instance, a fiscal conservative from the mid-West will often support government spending on their constituents despite an ideological preference for smaller government. This may take the form of agricultural subsidies. Similarly, a Republican from Virginia may well place their fiscal conservatism to one side when seeking funds for the military (Virginia is the home of the Pentagon and is the most heavily dependent on military expenditure of any state in the union). However, there is no better illustration of this point than road building. These are often favored by both sides of the political spectrum because the construction of such roads can be designed in order to benefit the greatest number of constituents. Once more, it is mercifully free of ideological baggage. Even a strident TP’er might acknowledge the obvious political benefits of road building with public funds.

Pork-barrel politics is the direct consequence of congressional members being too responsive to what the folks want back home. For obvious reasons, this is more noticeable within the lower chamber. It may also be more overt during the run-up to an election. Government projects also have a propensity towards benefitting key supporters, such as a particular social group within society. For example, a liberal Democrat representing an inner-city area has every incentive to secure government funding or support for schemes that favor ethnic minorities. This in part reflects the character of the American system itself. When an elected representative must face the verdict of the people once every two years, then they must focus upon gaining tangible benefits for their constituents. In effect, the people are the employers of the congressional member. If the people want benefits from ‘Uncle Sam,’ then those elected to serve have every incentive to provide it. Any politician who swims against the tide of public opinion puts themselves in a potentially dangerous situation.

Any critique offered about Congress will inevitably highlight pork-barrel politics. Few examples have quite caught the public’s attention in recent times as that of the ‘Bridge to Nowhere’ in Alaska. Congress agreed to a program which entailed building a bridge in Ketchika to the island of Gravina. Although it was never actually built, the Bridge to Nowhere became emblematic of congressional pork. Perhaps a better example to consider though is the Cornhusker kickback secured by Senator Ben Nelson of Nebraska. This conservative Democrat managed to gain special concessions for Medicaid in his home state in order that the administration could secure Nelson's personal support for Obamacare. Nelson had threatened to filibuster the bill with the support of Republicans in the Senate. As a footnote, he chose not to contest his seat in 2012 and was replaced by the conservative Republican Deb Fischer in part due to his association with a relatively unpopular scheme in a traditionally red state.

No understanding of pork-barrel politics would be complete without a reflection upon the terms peanut butter politics and horse-trading. The former refers to the practice of spreading taxpayer’s money around from one district to the next. In doing so, elected representatives can allocate pork on a more efficient vote-gathering basis. The aforementioned road building is a good illustration of this phenomenon. Horse(or log)-trading occurs when members of Congress trade support on various bills in return for the safe passage of measures that specifically benefit their constituents. Bargains might therefore be reached between members from opposing parties on the basis of ‘you scratch my back and I’ll scratch yours.’ As a consequence, members of Congress will little or no shared ideological ground may work together in order to help secure their re-election.

Nothing exposes the inherent contradictions of the American system of governance than that of pork-barrel politics. The public are unmistakably hostile towards the practice, and yet voters consistently re-elect those representatives who provide pork to their constituents. An incumbent who brings home such benefits will often gain another term in office. Those that don't run the risk of being removed from office by a disgruntled local electorate who regularly acts in a different manner to what they might say to opinion pollsters. If the public truly gets the politicians it deserves, then pork-barrel politics is surely a reason for that.

As with much else that ails the American system, the prospects for reform seem unlikely. Both politicians and the public believe that they benefit in some manner from the status quo, or at the very least no achievable alternative exists. Until people refuse to support congressional members that engage in pork-barrel politics, the practice looks set to remain. Indeed, it seems credible to argue that a sizeable number of voters are content with – or at least resigned to – the status quo. The American system of governance, for all its lofty rhetoric; is characterized less by heady enthusiasm and more by a sense of hapathy amongst its populace.

Filibustering

                To anyone with even a passing interest in American politics, it is surely obvious that obstructionism is more notable in the upper chamber than the House. The Senate is described with good reason as “the graveyard of good ideas.” One reason for this relates to the ability of a Senator (or group of Senators) to fillister proposed legislation. Perhaps the most well-known illustration derives from Strom Thurmond’s opposition to the Civil Rights Bill, a filibuster which lasted over twenty-four hours. At one point he read aloud a list of names from the telephone directory in order to highlight who would be disadvantaged by civil rights legislation. In the current congressional session, Senator Ted Cruz from Texas spoke for twenty-one hours to oppose funds being allocated to the ACA (including an eloquent piece on ‘green eggs and ham’).

                As is the case within all legislative assemblies, the whole purpose of a filibuster is to simply talk down a bill and deny proposed legislation sufficient time within that assembly. Rather than promote an alternative, a filibuster simply entails delaying tactics from the Senator (or group of Senators) engaged in such action. In doing so, the process of passing laws is made more complex. Such tactics can also be used in state legislatures. A notable mention here must go to Texas state senator Wendy Davis; who spoke for ten hours straight to deny sufficient legislative time for restrictions to be placed upon the maximum term for an abortion. The rules stipulate that she had to stand throughout, not lean on her desk or take any breaks.

 

In terms of Congress it should be noted that filibustering is not allowed in the House, but in the Senate a cloture motion can stop a filibuster. A supermajority of sixty votes is required in order to pass a successful cloture motion. If the motion is successful, the debate will end and the issue will be brought to a final vote (where a simple majority will suffice). Under the Obama administration, Republicans in the Senate have delayed a number of significant pieces of legislation including an attempt to overturn tax cuts for the wealthy and the DREAM Act (which would have enabled illegal immigrants to gain citizenship more easily). In both cases, members of the GOP in the upper chamber denied the Democrats the necessary votes required to pass a successful cloture motion.

Filibustering is one of the more negative aspects of congressional activity, and one rarely considered in a positive light by the voters. After all, they elect representatives to pass laws and represent their interests – whereas the only outcome of a filibuster is obstruction. In order to combat this, congressional party leaders might reach an informal agreement of some kind. For instance, under Harry Reid (D) and Mitch McConnell (R) the use of the filibuster on motions to proceed was limited. This is because congressional leaders such as Reid and McConnell have made it easier for the minority party to amend proposed legislation. Senators are also prevented from reading out amendments in their entirety, and can no longer delay the Senate anonymously via a hold. Having said this, the filibuster remains a feature of debate within the upper chamber. Indeed, Senators can actually talk down a proposed item of legislation without actually being in the chamber itself. This is called an invisible filibuster. A further delaying tactic used in the Senate is called unanimous consent. This occurs when a Senator requests to set aside a specified rule or procedure, so as to slow down the legislative process. If no Senator objects, the upper chamber permits the action. Under the Obama administration, Senator Jim Bunning used this tactic to delay extending unemployment benefits. This example exemplifies the extent to which Congress seeks to create an obstructionist system. The very fact that one elected representative can derail the legislative process is one of the more urgent problems facing the American system of governance. Until there is a collective will on both sides, it seems unlikely anything constrictive will ever be done.

Gridlock

                The American system of governance prizes oversight over effectiveness. As such, it should hardly surprise us to find that the legislative process is prone to policy sclerosis. The founding fathers did not intend Congress to act in a manner comparable to the British Parliament (its main template in terms of what a legislature should perform). Congress was designed in a manner consistent with the aim of limited government and within a broader structure of checks and balances. These are important points to grasp when considering the effectiveness or otherwise of the legislative branch. Gridlock between the legislature and the executive is surely an inevitable consequence of the system bequeathed by the framers of the Constitution. Gridlock as a term can also be applied to relations between the two chambers.

                Gridlock bears an obvious relationship to which party is in control of which branch (or chamber). Unlike a parliamentary system, the executive branch may well be controlled by a party that differs to that of the legislative branch. Equally, each of the main parties may be in control of one legislative chamber. In order to get around the problem, both parties must engage in some form of compromise. If they do not, then deadlock may occur. This can have major repercussions outside of the Washington bubble. For example, it may lead to government departments being closed due to a lack of funding – as was the case in 2013.

                Unlike many other countries, it is impossible to state which party is in government. Although there have been times when one party has been in control of both legislative chambers and the White House; the American system does not facilitate one-party dominance. Indeed, Americans themselves seem quite comfortable splitting their vote between the two main parties. There are certainly positives about the American system, notably in terms of preventing the abuse of power. However, there are also drawbacks that no-one could deny. These drawbacks become more obvious due to the trend towards ideological polarization and particularly during a period of divided government. As a result, the majority party may find it relatively straight-forward to adopt an obstructionist scorched-earth strategy. This has certainly been the criticism levied against House Republicans since the 2010 mid-terms under Obama. Whilst hostile rhetoric and ideological purity pleases the party base, it is somewhat contrary to getting things done for the benefit of the American people. As a consequence, the legislative branch of government ultimately serves a minority rather than the broader public interest. Partisan posturing will always be more prominent when an upcoming election casts a shadow over proceedings, particularly within the House. That said; President Obama must share some of the blame for his failure to engage constructively with congressional Republicans. He is the most polarizing President since records began, and he must acknowledge some responsibility for this along with Tea Party-inspired Republicans. Ideological polarization reflects a trend within American politics that would seem unlikely to be reversed. Elected representatives cannot really do much unless they regain their posts, and that becomes increasingly unlikely if they adopt a centrist position based on bipartisan compromise.

                One can identify a pattern emerging due to ideological polarization. Both sides stoke up the rhetoric in order to reassure their base before reaching a last-minute compromise. For instance, there is without question an element of brinkmanship in the context of securing a deal on the budget. Ultimately, both sides need an agreement to work but have a vested interest in portraying the other side in as negative a manner as possible. There is something of a ritual to this whole play, acted out on the public stage in full view of a frustrated audience. Moreover, politicians in Washington DC have deadlines in place that tacitly encourages brinkmanship. This unedifying process has damaged the status of Congress in the eyes of the electorate. As a placard outside Capitol Hill eloquently put it in the aftermath of the government shutdown of October 2013; “you do your job … so I can do mine!” That said; it is surely a consequence of a system based on a shared mandate and one increasingly polarized between the two main parties. What is perhaps worth further reflection is that the American public appears to have little appetite for unified government. Since 1981, Americans have returned a system of unified government on just one occasion (in 2004).

                Before we leave this section, it must be recognized that gridlock is not necessarily inevitable. It can of course be avoided via bipartisan co-operation, and the willingness of the White House and Capitol Hill to reach a compromise agreement. The ability of the President to act as an effective liaison between the various parties is another important element to consider. Other factors to consider include the strength of the President’s mandate, the existence of clear and realistic objectives and the relationship between the party leaders within Congress. However, history shows that the most important factor is the existence of a national emergency. In these thankfully rare situations, there is a sense that ‘we are all in it together’ and that bipartisan rhetoric serves no one. For instance, only one member of Congress voted against giving President George W. Bush the authority to use “all necessary and appropriate force” against those behind the terrorist attacks of 9/11, and the main elements of the Patriot Act were authorised by a Democrat-controlled Congress in 2010. Whilst these are of course exceptions to the rule, they do remind us what Congress can actually achieve with a sufficient degree of political will.

The limits of congressional power

                Based on the posts thus far, one might assume that the power of Congress is a considerable one. The founding fathers laid down a number of enumerated powers to enable the legislature to act as the dominant branch of government. Moreover, the elastic clause (which relates to all necessary laws) of the Constitution clearly confers significant legislative powers upon Congress. However, the power of Congress is limited by four factors; which we will now consider. These include the power of the President, the inability of Congress to adopt a constructive approach, the judicial branch and the role of public opinion.

                The great tragedy of American politics is that neither the White House nor Capitol Hill can ignore each other, nor operate effectively without each other! In the memorable words of Samuel Finer; they are “two halves of a bank note, each useless without the other.” The American system demands compromise and co-operation between the legislature and the executive. These separated institutions ultimately must share power, as opposed to power being concentrated into one particular branch. As such, the executive branch serves to limit the power of Congress.

                On the subject of the relationship between the White House and Capitol Hill; it is worth noting that the executive branch has gained from implied powers at the expense of what the founding fathers intended for the legislative branch. Few areas express this as succinctly as American foreign policy (Schlesinger, 1973). In the domestic realm, the relationship between the White House and Capitol Hill is far more balanced. Indeed, there are times during divided government when it appears that the White House and Capitol Hill are competing with each other to direct domestic policy.

                If the first limitation is an external imposition, the second is entirely of its own making. As previously alluded to, the phenomenon of ideological polarization has exacerbated tensions between the two main parties. The ability of congressional leaders from the majority and minority parties to reach agreement has therefore become more difficult than in previous generations. For instance, the Republican Party in Congress can no longer rely upon the votes of Dixiecrats over social and moral issues. The number of social conservatives in the Democrat party representing southern areas is in long-term (perhaps even terminal) decline. Equally, Democrats can no longer appeal to a number of liberal Republicans from the North-East and the West Coast. Relations between the two parties within Congress can therefore descend into political point-scoring, in which congressional leaders act in a manner more in keeping with their contemporaries in parliamentary systems. The behavior of congressional members is shaped to a significant degree by ‘over-your-shoulder’ politics which serves to deter the creation of a constructive, bipartisan agenda. To use a simple analogy, those that wander towards the middle of the road are likely to be run over by a more ideologically pure candidate during a primary.

                Another limitation upon the legislative branch is the judiciary. Any law passed by Congress can be ruled unconstitutional by the Supreme Court. However, this is a fairly weak constraint because Congress can pass a new law if they feel the judicial branch has made the wrong decision. One might extend this point to claim that the Constitution also places a constraint upon members of Congress. However, even the possibility of the judicial branch striking down a piece of legislation as unconstitutional acts as a genuine constraint upon Congress. Finally, the actions of Congress must reflect the boundaries of public opinion. The public can always ‘vote the bums out’ if they are unhappy with their members of Congress. This however is a somewhat complex equation. The old cliché that ‘Americans hate Congress but love their congressmen’ is as relevant now as it’s always been. Whilst Congress is widely viewed as the broken branch of government, incumbents (particularly the House) are re-elected in very high numbers. That said; each elected representative must listen to public opinion and be mindful of it.

                As with any institution, the powers of Congress rest upon a number of dependent factors. Inevitably, the power of Congress will therefore fluctuate over time. During a period of unified government, the willingness of Congress to fully scrutinise the executive branch will for instance be considerably weaker than during a period of divided government. Obama has clearly faced a greater level of scrutiny since the Democrats lost control of the lower chamber in the 2010 mid-term elections. House Republicans have therefore been more willing to use the apparatus available to them than the Democrats that controlled the House from 2009 to 2011 under House Speaker Nancy Pelosi. 

Scrutiny

By international standards, the extent to which Congress exerts control over the executive branch is considerable. Congressional committees have the authority and power to investigate what the executive does. However, the extent to which Congress can adequately scrutinise the executive is dependent upon two factors. Firstly, the founding fathers created a system in which Congress was the most powerful branch. Although the executive branch has gained in powers since then, Congress still remains a powerful branch of government. Secondly, the American system is based upon separated institutions sharing power. There is a very useful contrast to be offered here between the British system, in which the executive derives from the legislature; and the American system in which divided government has become the norm since the 1980s.

Congress holds eight checks upon the executive branch. In terms of a bill becoming a law, the legislative branch can amend or reject any item of legislation initiated by the President. Congress is often keen to wield this power, particularly during a period of divided government. Secondly, the budget must be approved by Congress. The power of the purse is self-evidently an important aspect of any political system. Agreeing to a budget is the product of a cumbersome bargaining process between the White House and Capitol Hill; as befits a system based upon the sharing of power rather than the concentration of power. Congress can even release funds impounded by the President and order him to spend those funds. In contrast, all the British executive has to do is secure support for the annual budget from the lower chamber on a majority vote. Due to strict party discipline in the UK, this is rarely a problem even during a period of coalition government.

More dramatically, Congress can override a presidential veto. As stipulated in the Constitution, this requires a supermajority. Congress can also force the Head of State to seek authorization before committing troops abroad. It is telling to note that Obama had to spend time seeking approval on Capitol Hill for proposed action against Syria during 2013. The founding fathers bequeathed a system of governance in which the Head of State could never act in a manner comparable to an old-style European monarch. It must also be recognized that only Congress can declare war. James Madison famously argued that the power to declare war should be vested in Congress, because history shows that the executive branch is more likely than the legislature to go to war. That said; Presidents from both parties have often been able to gain congressional approval via a resolution rather than seeking a declaration of war. This has been relatively easy under a period of unified government (as in the case of the Gulf of Tonkin resolution during Lyndon Johnson’s administration, and the wars in Iraq and Afghanistan under George W. Bush).

Another area of scrutiny concerns the ability of the Senate to ratify (or reject) international Treaties. The Senate is far more likely to reject a Treaty during divided government, as in the case of the Comprehensive Test Ban Treaty (1999) which Clinton described as one of the worst moments of his presidency. It is perhaps worth noting here that the majority party in the upper chamber has not rejected a Treaty signed by a President of its own party since the mid-1930s. From a similar angle, all presidential nominations to the executive and judicial branch must gain the “advice and consent” of the Senate. The main focus of the nomination process occurs within a congressional committee. To gain congressional approval, the President may have to withdraw their preferred candidate (as in the case of Susan Rice for Secretary of State under President Obama) or face a humiliating defeat. Over time, the nominating process for a member of the Supreme Court has become heavily politicized and subject to intense political drama.

Congressional committees have the power to investigate policies and actions undertaken by the executive branch. This can lead to criticism and embarrassment for the President. For example, the Senate Select Intelligence Committee published a report in 2014 into the use of torture by the Bush administration and the Senate Foreign Relations Committee highlighted the ‘failure’ of the Obama administration following events in Benghazi, Libya. Finally, Congress can impeach the President in regards to “high crimes and misdemeanors.” Clinton faced charges of perjury and obstruction of justice during his lame-duck period whereas Nixon faced almost certain removal from office by the Democrat-controlled Congress.

As one can see, the ability of Congress to scrutinise the executive is considerable. It should also be noted that Congress can hold the judiciary to account in two areas; the process of impeachment (i.e. removal from office) and by proposing a constitutional amendment when Congress feels that the Supreme Court has overstepped its power of judicial review. Easily the most famous historical example dates back to 1913, when Congress overturned a decision taken by the Supreme Court ruling income tax to be unconstitutional. 

Representation

                The representative role of Congress raises a deeper question as to ‘which model should Congress follow when seeking to represent the people?’ Does it necessarily entail the trustee model, or the resemblance model? Moreover, are members of the House too responsive to the wishes of the people? Let us consider each in turn ...

                The trustee model stipulates that an elected representative follows their own conscience rather than slavishly following public opinion. The judgment of elected representatives is therefore given greater importance than the view of the demos. This is based on the reasonable assumption that a member of Congress is more knowledge about the issues presented than the public as a whole. A member of Congress may well have access to information unavailable in the public domain, particularly when the issue in question relates to national security in some form. To have such information within the public domain could easily lead to panic and civil unrest. The trustee model adopts a largely negative view of democracy dating back to Ancient Greece (such as Plato’s observation that the “mass are unwise”) and was certainly part of the founding fathers mindset. Of the two chambers, the Senate was conceived as that which would most closely operate on the basis of the trustee model of representation.

                The alternative to the trustee model is that of a delegate. Under this system a member of Congress would therefore listen to public demand, and then seek to implement the will of the people. The delegate model places greater faith in the ability of the public to reach a considered judgment than that of the trustee model. As you are no doubt aware, the delegate model bears much greater relevance to members of the lower chamber than the Senate. Members of each congressional district must face the electorate once every two years. Inevitably, they will be much more sensitive to the wishes of their constituents than members of the upper chamber who only face the electorate once every six years. Critics of Congress claim that members are too responsive to public opinion, sacrificing the long-term national interest in order to regain power in an environment of a semi-permanent electoral campaign. Rather than offer their wise judgment, members of Congress must provide pork to their constituents and respond to the public’s prejudice.

                The extent to which Congress resembles America opens up a genuinely intriguing debate for those interested in American politics. It is an undeniable fact that Congress does not accurately resemble American society. Whilst progress has certainly been made on this front, the resemblance model does not entirely apply to the national legislature. For instance, the number of women in Congress is much lower than the population as a whole. At the time of writing just 20 Senators and 78 members of the House are women. That said, these figures represent the highest ever number of women in Congress. The figures for ethnic minorities are also well below the population as a whole. For example, there are just 34 Hispanic and 42 African-American members of Congress. That said; the underrepresentation of women and other minorities does not necessarily mean that their interests are being ignored. A white male member of Congress can represent the interests of women and ethnic minorities. Indeed, they may well secure considerable support from such voters (particularly candidates from the Democrats).

It must also be noted that proposed solutions to the problem (such as majority-minority districts in the House) may be unjustifiable. Majority-minority districts date back to the early-1990s and could be described as a form of gerrymandering. This practice raises similar questions to that of affirmative action. Both could be said to politicize skin color and might also be considered patronizing to minorities. All one can say with certainty is that the proportion of black congressional members in the House is significantly higher than the number in the Senate. Indeed, it is surely worth noting that Barack Obama was only the third black member of the Senate. It should also be noted that black members of the House may well have chosen not to seek election to the Senate because re-districting gives them an obvious advantage. 

The functions of a legislature

                The legislative branch of government performs six roles. Of these, the most important is to make laws. This is obviously the defining function of any law-making assembly. Although each state has a legislative body made up of two chambers (with the exception of Nebraska which is unicameral), it is Congress that makes laws that apply to the whole nation. The legislative branch also provides legitimacy to the legislative process. Each member of Congress is seen as legitimate in that they must gain the support of their constituents via the electoral process. Whilst there are significant flaws with the electoral system; not least the practice of gerrymandering in the House of Representatives, every member of Congress faces the electoral process. As such, each member has gained legitimacy from the demos.

                Another function performed by the legislative branch is to recruit ministers to Cabinet. Given the separation of personnel inherent within the American system of governance, a member of Congress must give up their seat in order to join the Cabinet. The offer of a ministerial position may not necessarily be enough to attract existing members of Congress to work with the President. Indeed, the Head of State may be forced to bring in former members of Congress. In those countries that operate on the basis of parliamentary government, members of the legislature become members of the executive branch without the need to resign from their positions.

The fourth function of a legislative assembly is to deliberate on political issues. Members of Congress will raise issues of concern to their constituents and issues of a broader interest to the nation as a whole. When comparing the two chambers, it is worth noting that the House adopts a more parochial character than the Senate. Following on from this point, members of the upper chamber tend to demonstrate a greater level of interest in foreign policy. It should also be noted that discussions held within Congress lack the adversarial character of the British system. For instance, there is no equivalent of British Prime Minister’s Question Time in the states. The layout of the chamber encourages a less adversarial approach too; with an aisle separating the two sides rather than the two sword lengths that separate the government and the opposition in the British Parliament. There are rules governing debate within both congressional chambers and the overall conduct is overseen by the Speaker of the House and in the case of the Senate the President pro tempore (temporary President).

                A legislature also seeks to perform a representative role. This is an important area to consider in the context of the American system. At a basic level, members of Congress seek to represent the interests and demands of their constituents. Indeed, many members of the legislative branch work long hours to look after the welfare of their constituents. However, it could be argued that the role of insider groups undermines the ability of congressional members to fulfill their representative role. The ability of wealthy interests to dominate the decision-making process is another factor to consider here. Moreover, the ability of the legislature to represent the people raises a number of salient points already considered in previous posts. These include the resemblance model of representation, the use of majority-minority districts and the incumbency effect.

              The final role performed by the legislative branch of government is that of scrutiny. Congress performs eight checks upon the power of the executive branch, and a number of additional checks upon the judicial branch. Congress therefore has the ability to oversee the executive branch, a function that has provided some of the most dramatic events in the history of the United States. For obvious reasons, the level of scrutiny depends to a significant degree upon the status of the parties in the legislature and the executive. During a period of unified government, Congress tends to adopt a less critical tone than is the case during a period of divided government. The contrast between the first term of George W. Bush (when the Republican-controlled Congress failed to ask searching questions concerning his policy on Iraq) and his last two years (when the Democrat-controlled Congress effectively starved the administration of the funding needed to continue the war in Iraq) offers an excellent illustration of this point. Similarly, divided government can descend into political point-scoring. Relations between the White House and Capitol Hill were particularly strained during 1994-2000 and from 2006-2008. More recently, congressional Republicans threatened to prevent federal funds going to the Affordable Care Act.

The structure of Congress

             For most countries, it makes more sense to begin with a study of the executive branch as that would be the most powerful and significant. However, the framers of the Constitution believed that Congress would be the most important body of government. The enumerated powers listed in Article 1 of the Constitution seem to indicate that the legislative branch of the federal government was clearly intended to be the most powerful branch of the three. On paper at least, power is concentrated more heavily in the legislative branch that either the executive or the judicial branch.

Although each state has a legislature, it is Congress that holds greater significance based upon the national supremacy clause. Congress is unquestionably the nation’s primary law-making assembly. If a law is passed by Congress, then that law overrides those made at the state level. This is more than simply an academic point. Throughout our nation’s history, the federal legislature has often sought to impose its will upon the states. For instance, during the 1950s and 60s Congress passed civil rights laws designed specifically to protect those who faced discrimination on the basis of racism and bigotry. The scope and scale of the federal legislature grew during the New Deal, but during the era of new federalism the federal government was curtailed in favor of states’ rights. In the contemporary era, Congress has pushed through controversial laws that have been contrary to the wishes of certain states (such as the Affordable Care Act and immigration reform).

Congress consists of two bodies and five hundred and thirty-five members (a hundred Senators and four hundred and thirty-five members of the House). The House of Representatives is conventionally viewed as the lower chamber whereas the Senate is depicted as the upper chamber. Although the House has more power in certain areas, it is the Senate that is the more powerful chamber of the two. Members of the House must face the electorate once every two years (as laid down in Section 2 of the Constitution), whereas a member of the upper chamber can serve for six years before seeking re-election. Inevitably, those who represent a congressional district will be more responsive to party opinion than a member of the Senate. It should be added here that an incumbent member of the House is often more likely to be defeated during a primary than a general election, particularly if they represent a relatively safe seat. Equally, they will be more sensitive to the wishes of the electorate than members of the upper chamber because they must face the electorate on such a frequent basis. The House is also a more partisan chamber than the Senate.

Since the very birth of the Republic, members of the House have been elected. However, elections to the upper chamber were only instigated in 1913 after ratification of the seventeenth amendment. Originally, the founding fathers viewed the upper chamber as a body akin to the British House of Lords, in which unelected figures were able to thwart populist measures instigated by the lower chamber. In doing so, the Senate could act as a bulwark against the tyranny of the majority that so preoccupied the founders of our nation. Although elections to the Senate have occurred for over a century; some of that detached and measured atmosphere and intent remains. The Senate will often curtail or defeat populist measures emanating from the more populist House of Representatives.

                A series of congressional elections are held every two years on a fixed date in November, during which all seats in the House and a third of the Senate are up for grabs. A congressional session therefore lasts for two years. It is worth noting that the mantra of the Revolution had been ‘where annual election ends, tyranny begins.’ This may well explain why the election period is relatively short by international standards; and certainly unusual for the time in which the Constitution was first laid down. By convention, the Speaker of the House derives from the majority party. The occupant must be voted on by members of the lower chamber and, in most congressional sessions; we can be reasonably certain who will emerge as the Speaker of the House. However, some members of the majority party might vote against the incumbent Speaker if they are dissatisfied in some way with their perceived lack of ideological purity. In 2012, twelve Republicans voted against John Boehner’s re-appointment as Speaker of the House. This was in response to his willingness to compromise with Democrats and the Obama administration over the budget.

                The ability of Congress to pass laws is that body’s defining and most important feature. However, Congress holds a much broader range of powers than simply that of passing legislation. These powers enable Congress to act as a check upon the power of both the judiciary, and the executive. The Constitution outlines a lengthy list of enumerated powers in Section 8. Article 1 (the so-called elastic clause) offers considerable leeway for the nation’s legislature. On this basis, Congress has the power to make all necessary and proper laws. During the 2012 presidential campaign, the commerce clause came under scrutiny because the Affordable Care Act was ruled constitutional on this basis.

Despite these considerable powers, Congress has been less successful in identifying and exploiting implied powers from the Constitution when compared to the executive branch of government. It must also be acknowledged that during times of national crisis the people look to the President rather than Congress for decisive action. To a great many Americans, Congress is associated with an obstructionist mindset and political grandstanding rather than taking decisive action. Even an unpopular President scores a far higher approval rating than Congress.

Quotes on the Constitution

“A Bill of Rights is what the people are entitled to against every government on earth … and what no just government should refuse or rest on inference.” Thomas Jefferson

“A Constitution is not meant to facilitate change. It is meant to impede change, to make change difficult.” Antonio Scalia

“Conservative or liberal, we are all constitutionalists.” Barack Obama

“Government is not reason, it is not eloquence; it is force.” George Washington

“Government of the people, by the people, for the people, shall not perish from the earth.” Abraham Lincoln

“I wish the Constitution … had been made more perfect, but I sincerely believe it is the best that could be obtained at this time.” George Washington

“The best organized groups tend to be neither the most representative nor the most moderate.” Christopher Caldwell

“The Constitution created separated institutions sharing powers.” Richard Neustadt

“The Constitution is an invitation to struggle.” Edwin Corwin

“The Constitution is based upon the three principles of compromise, compromise and compromise.” Alistair Cooke

“The Federal Government did not create the States; the States created the Federal government.” Ronald Reagan

“The people are the government, administering it by the agents; they are the government, the sovereign power.” Andrew Jackson

“What the Constitution separates, the political parties do not combine.” Richard Neustadt

“Yes we can, but …” Barack Obama

The workings of government

                To use the discourse of the English constitutional expert Walter Bagehot, the Constitution facilitates both the efficient and dignified parts of the Constitution. The efficient part alludes quite simply to the workings of government. These are specified in the enumerated powers of Article 1 (the legislature), Article 2 (the executive) and Article 3 (the judiciary). The dignified element relates to the rituals that reflect a system based upon the separation of powers. There are several illustrations of this point, such as the oath taken by the President during the inauguration ceremony. The Head of State is sworn in by the Chief Justice of the Supreme Court on the steps of Capitol Hill. The President must also address Congress during the state of the union address. Having said this, the state of the union address might also be categorized in the effective part of the Constitution because policy initiatives and potential legislation are alluded to during the speech. The state of the union address derives from Article 2 Section 3 of the Constitution. When considering each of the three branches of government, one must keep in mind the distinction between the enumerated and implied powers derived from the Constitution.

               

                The framers of the Constitution wrote in a manner that was shaped by the unhappy experience of colonial rule. Unfortunately, this means that the workings of government may well be hindered in some manner by the document. There are few better illustrations to consider than the disagreement over the budget in 2013. The Constitution separates powers between the legislature and the executive over a number of issues, one of which is the budget. Given the drift towards ideological polarization, it is very difficult to get a budget passed that caters for both Democrats and Republicans. Although the Constitution is not entirely to blame, it has certainly made the task more problematic. In seeking to avoid the abuse of power, the Constitution may well have undermined the effectiveness of government itself.

Another area to consider is the alleged wall of separation between the church and state. The framers were understandably concerned about the potential for religious persecution. For example, they added a religious test clause which stipulates that no-one may be denied public office on the basis of their religious affiliation. In a practical sense, no federal employee can be forced to adhere to or accept any religious doctrine. Liberals contend that the religious test clause helps to prevent the emergence of a theocracy within the states. Social conservatives however claim that the Constitution prevents religion taking its proper role within American society. It should also be noted that there are no religious-based parties in the states, unlike other comparable democracies within Europe.