CONGRESS AS A LEGISLATIVE ASSEMBLY: STRUCTURE AND PROCESS

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CONGRESS AS A LEGISLATIVE ASSEMBLYSTRUCTURE AND
PROCESS

• Topics 22-23

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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.

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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.

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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.

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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).

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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.

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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.

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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.

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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.

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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.

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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.

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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 KJ, 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.

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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 party that 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).

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How a Bill Becomes a Law

• Or, more typically, how a bill usually doesnt
  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 gt

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How a Bill Becomes a Law (cont.)

• A bill is introduced in Congress.
• This is not hurdle its 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.

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How a Bill Becomes a Law (cont.)

• Lets 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 lets suppose otherwise, to keep the story
  going.

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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.

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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.

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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.

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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.

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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.

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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 Senates work, and
• the Majority Leader asks for a unanimous consent
  agreement to proceed in the agreed manner.

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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 dont have gate-keeping power,
  and
• legislation can be written on the floor of the
  Senate.

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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.

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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 houses 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).

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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.

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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.

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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.

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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.

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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).

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LBJ Signing Medicare
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The Presidential Veto Power

• If the President vetoes the bill, it is returned
  to Congress with a message setting out the
  Presidents objections.
• Congress can respond in three ways
• It can do nothing (so the bill dies).
• It can (attempt to) override the Presidents
  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 Presidents liking.

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The Pocket Veto

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

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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.