CONGRESS AS A LEGISLATIVE ASSEMBLY: STRUCTURE AND PROCESS

1. CONGRESS AS A LEGISLATIVE ASSEMBLY:STRUCTURE AND PROCESS Topics #22-23

2. Congress as a Legislative Assembly • Thus far we have looked at external relationships of Congress, i.e., • its representative character. • Now we turn to look at internal characteristics of Congress, i.e., • the organization and procedures that Congress uses to carry out its legislative tasks. • including investigation and oversight.

3. Parliamentary vs. Separation-of-Powers Systems • Two broad patterns of legislative organization are found in democracies: • Parliamentary systems, in which • legislative and executive elections are fused [into “general elections”], • legislative organization is highly centralized and highly party-focused, and • the executive dominates the legislature. • Separation-of-powers [or Presidential] systems, in which • the legislature and executive are separately elected, • legislative organization is relatively decentralized and less party-focused, and • the legislature and executive “check and balance” one another.

4. Parliamentary vs. Separation-of-Powers Systems (cont.) • In this respect, the U.S. is the exception. • Parliamentary systems are much more common than separation-of-powers systems. • Virtually all European countries have parliamentary systems. • France is partial exception. • Plus Canada, Australia, India, Israel, Japan, etc. • Parliamentary systems are of two broad types: • “Westminster” (two-party) systems, and • proportional representation (multi-party) systems. • The U.S. separation-of-powers system has been copied in many Latin American countries and the Philippines.

5. The “Westminster” System • The framers of the U.S. Constitution did not deliberately reject a parliamentary system. • Parliamentary systems did not evolve in Europe until the mid-to-late 19th century and early 20th century. • In many ways, the framers thought they were copying the structure (without the hereditary elements) of British system of government as it then existed (which they rather admired), • with a separate legislature (Parliament) and executive (Monarch).

6. The “Westminster” System (cont.) • A parliamentary system evolved in Britain in the mid-to-late 19th century, with the following developments: • the monarchy lost more and more powers to Parliament; • the (hereditary) House of Lords lost powers to the (elected) House of Commons; • the right to vote for members of the House of Commons was broadened; • MPs [Members of Parliament, but specifically of the House of Commons] were (and continue to be) elected from SMDs; • malapportionment (“rotten boroughs”) of parliamentary constituencies was reduced; and (most importantly) • rival groupings of more or less like-minded MPs evolved into two rival political parties, • first called Tories and Whigs • and later Conservatives and Liberals.

7. The “Westminster” System (cont.) • One or other major party wins a majority of seats in the House of Commons [until 2010]. • The leader of the majority party becomes Prime Minister. • The Prime Minister, together with other leading party MPs, form the Cabinet [and government] whose members run the government departments that execute laws passed by Parliament. • The leader of the other party becomes Leader of the Opposition, who together with other leading party MPs form the Shadow Cabinet. • Both sets of party leaders exercise strong discipline over their “back-benchers.” • Thus executive and legislative power are fused and centralized. • So voters are in effect voting for a party, Prime Minister, and government when they vote for one of their local MP candidates. • “Divided government” is ruled out.

8. Other Parliamentary Systems • Other (non-Westminster) parliamentary systems: • Parliamentary seats are allocated among parties on the basis of one or other system of proportional representation. • Voters vote for parties, not candidates. • Parties win seats in Parliament in proportion to the votes they receive (at least above some vote threshold) • The apportionment problem arises again. • Parliament achieves a high degree of descriptive representation with respect to partisanship, but • there is little or no local representation. • Almost always more than two parties win seats, and • typically no party wins a majority of seats.

9. Other Parliamentary Systems (Cont.) • Thus following an election, there must be negotiation among party leaders to form a coalition government. • Party leaders exercise strong discipline over their “back-benchers.” • Thus executive and legislative power are fused and centralized. • However, there is (typically) no single governing or opposition party. • Voters vote for their preferred party but not for a local MP, or Prime Minister, or government.

10. U.S. Separation-of-Powers System • The President is not a mere figurehead with ceremonial duties only (like a Monarch or President in a parliamentary system). • Since both the President and Congress have substantial constitutional powers, there is always an actual or potential struggle between them to control government policy.

11. U.S. Separation-of-Powers System (cont.) • Legislative (Congressional) elections and executive (Presidential) elections are separate. • Thus divided government may result, so that • one party controls the Presidency, while • the other branch controls (at least one house of) Congress. • Even with unified party control of President and Congress, the executive cannot dominate the legislature (or vice versa), • So Congress need not pass legislation requested by the President. • Members of Congress are responding to different political incentives from the President, in particular • being good representative agents of their constituents.

12. U.S. Separation-of-Powers System (cont.) • Since it is not dominated by the Executive, Congress had to create its own institutions to carry out its legislative tasks. • The Constitution allows each house to adopt its own rules of procedures. • The House and Senate have adopted rather different rules (which they can change without amending the Constitution). • But a basic legislative institution is common to both: • a system of standing legislative committees [see box in K&J, p. 238] • with specialized jurisdictions • that more or less duplicate the jurisdiction of the executive departments, and • that exercise great agenda power (especially in the House). • The committee system, combined with procedures for selecting committee members and naming committee Chairs, results in a relatively decentralized and non-partisan legislative process. • Each committee has a large professional staff with expertise appropriate for its jurisdiction.

13. U.S. Separation-of-Powers System (cont.) • In one manner (only) are U.S. congressional parties as disciplined as their parliamentary counterparts: • on organizational votes at the beginning of each Congress. • So, when you vote for your Representative in the House, (or Senator) you are also voting for which party will organize the House (or Senate). • The majority partythat organizes each house of Congress • elects the Speaker of the House and the Majority Leader of the Senate, • [The presiding officer of the Senate is the Vice President.] • controls a majority of seats on every legislative committee, and • elects the chair of every committee. • The committee chair largely controls the agenda of the committee. • There is always a ranking minority member (“shadow chair”).

14. “How a Bill Becomes a Law” • Or, more typically, how a bill usually doesn’t become a law. • “The Obstacle Course on Capital Hill” • To become a law, a bill must overcome a series of hurdles (though some can be bypassed, especially in the Senate). • Some rough numbers: every year • about 20,000 bills are introduced; • about 1,000 bills are enacted into law; • about 100 of these are “public bills”; • the other 900 are “private bills”; • about 10-20 are “major” bills (covered in media, etc.). • How a Bill Becomes a Law”: Flow Chart =>

16. How a Bill Becomes a Law (cont.) • A bill is introduced in Congress. • This is not hurdle; it’s easy to do. • Any member [but only members] can introduce a bill. • A bill can be introduced in either the House or the Senate or simultaneously in both houses. • “Parallel vs. serial processing” of legislation. • However: • tax bills must originate in the House (a constitutional requirement) • and by custom appropriations bills also originate in the House. • While only members can introduce bills, they may introduce bills on behalf of • themselves, • their committees, • particular constituents, • interest groups, • the President/Administration. • The Constitution authorizes the President to recommend legislation to Congress but he cannot actually introduce bills.

17. How a Bill Becomes a Law (cont.) • Let’s suppose the bill is introduced into the House only (“serial processing”) • The bill is referred to the appropriate committee, • or occasionally multiple committees. • What happens then? • Typically nothing --- the bill “dies” or is “bottled up” in committee, • which is expected and perhaps just as well, as • the bill may have been introduced just “for show” or “position taking.” • But let’s suppose otherwise, to keep the story going.

18. House Action • Each committee is subdivided into subcommittees, with still more specialized jurisdictions. • The committee chair assigns the bill to the appropriate sub-committee. • The subcommittee holds hearings and invites testimony from: • its sponsors, • relevant interest groups (pro and con), • relevant experts, and • the Administration (relevant Secretary and/or agency heads). • The subcommittee • probably revises the language of the bill, and • takes a vote on the bill.

19. House Action (cont.) • The bill is then considered by the full committee, which may hold further hearings. • The committee marks up the bill by • going over the language line by line, • considering proposed amendments, and • voting these amendments up or down. • The committee then takes a final up-or- down vote to report the bill to floor of the House • The committee may exercise two kinds of agenda power: • Gatekeeping (“blocking”) power: if the committee does not report the bill, the bill almost certainly dies, though • a discharge petition may be filed. • Monopoly proposal power: it may be relatively difficult (or impossible) to amend the bill on the floor of the House.

20. House Action (cont.) • The bill then goes to the Rules Committee [the “traffic cop” of the House]. • Legislative activity on the floor of the House is tightly organized and regulated. • The Rules Committee may send the bill to the floor: • under a closed rule, i.e., no amendments are permitted; • under a restrictive rule, i.e., only a few specified amendments may offered; or • under a (relatively) open rule. • In any event, • only germane amendments are in order, and • time for debate on the floor will be (more or less severely) limited.

21. House Action (cont.) • Floor consideration of the bill: • Some may take place in the committee of the whole, which allows • less formal procedures, and • a less stringent quorum requirement. • Floor votes: • on amendments (may be most critical), • on final passage of the bill. • Types of votes: • Voice votes • Teller votes • Roll call votes • Electronic voting. • In general, the majority party leaders (especially the Speaker) exercise strong control over the legislative process in the House.

23. Senate Action • The Senate has its own similar process but • with very different rules governing floor consideration of bills, • and this may affect what happens at the committee stage. • The Senate generally uses more informal procedures than the House, • giving individual Senators power to slow down or even block legislation, and thereby • giving the majority party leadership much less control over the legislative process.

24. Senate Action (cont.) • The Senate • has no Rules Committee “traffic cop,” • has no closed or restrictive rules, • allows non-germane amendments, and • allows unlimited debate. • Instead, the Majority and Minority Leaders negotiate an agenda for the Senate’s work, and • the Majority Leader asks for a unanimous consent agreement to proceed in the agreed manner.

25. Senate Action (cont.) • Because the Senate does not use closed or restrictive rules, • Senate committees do not have the same kind of agenda power as House committees. • Because the Senate has no germaneness rule, so • riders may be attached to bills on the floor, and • Senate committees don’t have gate-keeping power, and • legislation can be written on the floor of the Senate.

26. Senate Action (cont.) • Moreover, the Senate allows unlimited debate, • allowing filibusters. • Cloture (shutting off debate) requires 60 votes. • Today the minority party routinely threatens to filibuster legislation (or nominations) favored by the majority party. • So it is generally said that a bill needs the support of 60 Senators to pass.

27. The Conference Committee • The House and Senate have probably passed different versions of the bill, which must therefore be reconciled. • One house may accept the other house’s version. • More typically, a conference committee is formed. • A conference committee is • an ad hoc (vs. standing) committee • set up to reconcile House and Senate versions of a specific bill • that includes members of both houses (and both parties).

28. Conference Committee (cont.) • Members of the conference are • appointed by their respective party leaders • and are typically members of the committees that considered the bill. • Conference committee members are traditionally expected to act as representative agents of their respective houses, • though of late they may act more as representative agents of their party leaders.

29. Conference Committee (cont.) • The House and Senate members try to negotiate a compromise between the House and Senate versions of bill. • If they fail to reach an agreement, the bill dies. • If they do reach an agreement, the conference version of the bill is sent to each house for an up-or-down (“closed rule”) vote.

30. The “Third House”: The President • Everything up to this point is consistent with the Constitution but not required by it, because • the Constitution gives each house the power to establish its own rule of procedure. • However, the remaining steps are governed directly by the Constitution, • which sets up what is in effect a tricameral legislative process. • The Constitution requires that every bill passed by Congress be presented to the President for his consideration.

31. The “Third House” (cont.) • Article 1, Section 7. Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law. But in all such cases the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.

32. Presidential Action • The Constitution gives the President three choices when Congress presents him with a bill: • he can sign the bill, • he can veto the bill, or • he can do nothing. • If the President signs the bill, it is enacted into law, • perhaps with elaborate signing ceremony (or perhaps not).

33. LBJ Signing Medicare

34. The Presidential Veto Power • If the President vetoes the bill, it is returned to Congress with a message setting out the President’s objections. • Congress can respond in three ways: • It can do nothing (so the bill dies). • It can (attempt to) override the President’s veto. • This requires a two-thirds majority vote by both houses, • which is usually very difficult to achieve (so the bill likely dies). • It can pass a new version of the bill that is more to the President’s liking.

35. The Pocket Veto • The effect of the President’s doing nothing depends on whether Congress is still in session after ten working days. • If so, the bill becomes law without the President’s signature. • If not, the bill dies • and the President has exercised what is called a pocket veto. • The President’s pocket veto power is significant because Congress passes many bills right at the end of its session.

36. Veto Bargaining • Sometimes Congress passes a bill that it knows the President will veto. • Both Congress and the President may be engaged in position taking, • which is especially likely under divided government. • Congress exercises agenda power because it presents bills to the President under (so to speak) a “closed rule,” • i.e., the President can only accept the bill as passed or veto it entirely. • If Congress expects the President to veto a bill that Congress very much wants, it can (e.g., through a Senate rider) “package” it with another bill that the President very much wants. • It has been proposed to amend the Constitution to give the President an item veto. • This would allow the President the power to veto parts of a bill (in particular appropriations bills) without vetoing the entire bill. • Congress would lose much of its agenda power and the bargaining power of the President in the legislative process would be greatly enhanced.