12.1 The Institutional Design of Congress

THE GREAT COMPROMISE AND THE BASICS OF BICAMERALISM

As you will recall from the Constitutional Convention of 1787, the framers of the Constitution initially meet to revise the Articles of Confederation. Quickly it was determined that the Articles need replacing, not revising. At the center of debate was how to determine the make up of the legislative body. What we now call the Great Compromise, proposed a bicameral congress with members apportioned differently in each house. The upper house, the Senate, was to have two members from each state. This soothed the fears of the small states. In the lower house, the House of Representatives, membership would be proportional to the population in each state. This measure protected the interests of the large states.

In the final draft of the U.S. Constitution, the bicameral Congress established by the convention of 1787 was given a number of powers and limitations. These are outlined in Article I. This article describes the minimum age of congresspersons (Section 2), requires that Congress meet at least once a year (Section 4), guarantees members’ pay (Section 6), and gives Congress the power to levy taxes, borrow money, and regulate commerce (Section 8). These powers and limitations were the Constitutional Convention’s response to the failings of the Articles of Confederation.

Although the basic design of the House and Senate resulted from a political deal between large and small states, the bicameral legislature established by the convention did not emerge from thin air. The concept had existed in Europe as far back as the medieval era. Those at the Constitutional Convention purposely structured the U.S. Senate differently from the House of Representatives in the hopes of encouraging different representative memberships in the two houses. Initially, for example, the power to elect senators was given to the state legislatures instead of to the voting public as it is now. The minimum age requirement is also lower for the House of Representatives: A person must be at least twenty-five years old to serve in the House, whereas one must be at least thirty to be a senator.

The bicameral system established at the Constitutional Convention and still followed today requires the two houses to pass identical bills, or proposed items of legislation. This ensures that after all amending and modifying has occurred, the two houses ultimately reach an agreement about the legislation they send to the president. Passing the same bill in both houses is no easy feat, and this is by design. The framers intended there to be a complex and difficult process for legislation to become law. This challenge serves a number of important and related functions. First, the difficulty of passing legislation through both houses makes it less likely, though hardly impossible, that the Congress will act on fleeting instincts or without the necessary deliberation. Second, the bicameral system ensures that large-scale dramatic reform is exceptionally difficult to pass and that the status quo is more likely to win the day. This maintains a level of conservatism in government, something the landed elite at the convention preferred. Third, the bicameral system makes it difficult for a single faction or interest group to enact laws and restrictions that would unfairly favor it.

SENATE REPRESENTATION AND HOUSE APPORTIONMENT

The Constitution specifies that every state will have two senators who each serve a six-year term. Therefore, with fifty states in the Union, there are currently one hundred seats in the U.S. Senate. Senators were originally appointed by state legislatures, but in 1913, the Seventeenth Amendment was approved, which allowed for senators to be elected by popular vote in each state. Seats in the House of Representatives are distributed among the states based on each state’s population and each member of the House is elected by voters in a specific congressional district. Each state is guaranteed at least one seat in the House (Table 11.1).

Congressional apportionment today is achieved through the equal proportions method, which uses a mathematical formula to allocate seats based on U.S. Census Bureau population data, gathered every ten years as required by the Constitution. At the close of the first U.S. Congress in 1791, there were sixty-five representatives, each representing approximately thirty thousand citizens. Then, as the territory of the United States expanded, sometimes by leaps and bounds, the population requirement for each new district increased as well. Adjustments were made, but the roster of the House of Representatives continued to grow until it reached 435 members after the 1910 census. Ten years later, following the 1920 census and with urbanization changing populations across the country, Congress failed to reapportion membership because it became deadlocked on the issue. In 1929, an agreement was reached to permanently cap the number of seats in the House at 435.

Redistricting occurs every ten years, after the U.S. Census has established how many persons live in the United States and where. The boundaries of legislative districts are redrawn as needed to maintain similar numbers of voters in each while still maintaining a total number of 435 districts. Because local areas can see their population grow as well as decline over time, these adjustments in district boundaries are typically needed after ten years have passed. Currently, there are seven states with only one representative (Alaska, Delaware, Montana, North Dakota, South Dakota, Vermont, and Wyoming), whereas the most populous state, California, has a total of fifty-two congressional districts (Figure 11.3).

Two remaining problems in the House are the size of each representative’s constituency—the body of voters who elect the representative—and the challenge of Washington, DC. First, the average number of citizens in a congressional district now tops 700,000. This is arguably too many for House members to remain very close to the people. George Washington advocated for thirty thousand per elected member to retain effective representation in the House. The second problem is that the approximately 675,000 residents of the federal district of Washington (District of Columbia) do not have voting representation. Like those living in the U.S. territories, they merely have a non-voting delegate.¹

Attempts at African American disenfranchisement continued until the civil rights struggle of the 1960s finally brought about the Voting Rights Act of 1965. The act cleared several final hurdles to voter registration and voting for African Americans. Following its adoption, many Democrats led the charge to create congressional districts that would enhance the power of African American voters. The idea was to create majority-minority districts within states, districts in which African Americans became the majority and thus gained the electoral power to send representatives to Congress.

While the strangely drawn districts succeeded in their stated goals, nearly quintupling the number of African American representatives in Congress in just over two decades, they have frustrated others who claim they are merely a new form of an old practice, gerrymandering. Gerrymandering is the manipulation of legislative district boundaries as a way of favoring a particular candidate. The term combines the word salamander, a reference to the strange shape of these districts, with the name of Massachusetts governor Elbridge Gerry, who in 1812, signed a redistricting plan designed to benefit his party. Despite the questionable ethics behind gerrymandering, the practice is legal, and both major parties have used it to their benefit.

HOUSE AND SENATE COMPARISONS

The House and Senate are institutions that have decidedly different characters. Because of its large size and more frequent turnover in membership, the House is an impersonal institution. House members may not recognize their colleagues, and some have staff members assigned as “spotters,” who whisper names into their ears to avoid embarrassment. The House operates under formal rules. It is hierarchical, and seniority is important. Members serve for a long time before they become leaders. Senior members have more influence over decision making than their junior colleagues.

The Senate does not rely as heavily on hierarchy as the House. It is less rule-bound and operates more loosely and unpredictably than the House, especially as it requires unanimous consent for any bill to be taken up. This means that a lone senator has the power to stop legislative action, a power that House members do not possess. Senators serve long terms and get to know their colleagues. Seniority is less meaningful, as junior senators have considerable power to make decisions along with their senior colleagues. The smaller size of the chamber allows members to pursue a fast track to leadership and increased public visibility early in their careers.

The differences between the House and Senate are reflected in their respective chambers. The House meets in the largest parliamentary room in the world. Members do not have assigned seats and take any available place on padded benches. Few members spend time in the chamber other than when they are speaking or voting. The Senate chamber is smaller and more ornate. Senators are assigned desks and chairs, many of which have been held by distinguished members.

CONGRESSIONAL POWERS

The authority to introduce and pass legislation is a very strong power. But it is only one of the many that Congress possesses. In general, congressional powers can be divided into three types: enumerated, implied, and inherent. An enumerated power is a power explicitly stated in the Constitution. An implied power is one not specifically detailed in the Constitution but inferred as necessary to achieve the objectives of the national government. And an inherent power, while not enumerated or implied, must be assumed to exist as a direct result of the country’s existence. In this section, we will learn about each type of power and the foundations of legitimacy they claim. We will also learn about the way the different branches of government have historically appropriated powers not previously granted to them and the way congressional power has recently suffered in this process.

Article I, Section 8, of the U.S. Constitution details the enumerated powers of the legislature. These include the power to levy and collect taxes, declare war, raise an army and navy, coin money, borrow money, regulate commerce among the states and with foreign nations, establish federal courts and bankruptcy rules, establish rules for immigration and naturalization, and issue patents and copyrights. Other powers, such as the power of Congress to establish federal courts below the Supreme Court, are found elsewhere in the Constitution (Article III, Section 1). The first of these enumerated powers, to levy taxes, is quite possibly the most important power Congress possesses. Without it, most of the others, whether enumerated, implied, or inherent, would be largely theoretical. The power to levy and collect taxes, along with the appropriations power, gives Congress what is typically referred to as “the power of the purse” (Figure 11.5). This means Congress controls the money.

Despite the fact that the Constitution outlines specific enumerated powers, most of the actions Congress takes on a day-to-day basis are not actually included in this list. The reason is that the Constitution not only gives Congress the power to make laws but also gives it some general direction as to what those laws should accomplish. The “necessary and proper clause” directs Congress “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Laws that regulate banks, establish a minimum wage, and allow for the construction and maintenance of interstate highways are all possible because of the implied powers granted by the necessary and proper clause. Today, the overwhelming portion of Congress’s work is tied to the necessary and proper clause.

Finally, Congress’s inherent powers are unlike either the enumerated or the implied powers. Inherent powers are not only not mentioned in the Constitution, but they do not even have a convenient clause in the Constitution to provide for them. Instead, they are powers Congress has determined it must assume if the government is going to work at all. The general assumption is that these powers were deemed so essential to any functioning government that the framers saw no need to spell them out. Such powers include the power to control borders of the state, the power to expand the territory of the state, and the power to defend itself from internal revolution or coups. These powers are not granted to the Congress, or to any other branch of the government for that matter, but they exist because the country exists.

LIMITS TO CONGRESSIONAL POWERS

In the early days of the republic, Congress’s role was rarely if ever disputed. However, with its decision in Marbury v. Madison (1803), the Supreme Court asserted its authority over judicial review and assumed the power to declare laws unconstitutional.⁶ Yet, even after that decision, the Court was reluctant to use this power and didn’t do so for over half a century. Initially, the presidency was also a fairly weak branch of government compared with the legislature. But presidents have sought to increase their power almost from the beginning, typically at the expense of the Congress. By the nature of the enumerated powers provided to the president, it is during wartime that the chief executive is most powerful and Congress least powerful. For example, President Abraham Lincoln, who oversaw the prosecution of the Civil War, stretched the bounds of his legal authority in a number of ways, such as by issuing the Emancipation Proclamation that freed enslaved people in the confederate states.⁷

In the twentieth century, the modern tussle over power between the Congress and the president really began. There are two primary reasons this struggle emerged. First, as the country grew larger and more complex, the need for the government to assert its regulatory power grew. The executive branch, because of its hierarchical organization with the president at the top, is naturally seen as a more smoothly run governmental machine than the cumbersome Congress. This gives the president advantages in the struggle for power and indeed gives Congress an incentive to delegate authority to the president on processes, such as trade agreements and national monument designations, that would be difficult for the legislature to carry out. The second reason has to do with the president’s powers as commander-in-chief in the realm of foreign policy.

The twin disasters of the Great Depression in the 1930s and World War II, which lasted until the mid-1940s, provided President Franklin D. Roosevelt with a powerful platform from which to expand presidential power. His popularity and his ability to be elected four times allowed him to greatly overshadow Congress. As a result, Congress attempted to restrain the power of the presidency by proposing the Twenty-Second Amendment to the Constitution, which limited a president to only two full terms in office.⁸ Although this limitation is a significant one, it has not held back the tendency for the presidency to assume increased power.

In the decades following World War II, the United States entered the Cold War, a seemingly endless conflict with the Soviet Union without actual war, and therefore a period that allowed the presidency to assert more authority, especially in foreign affairs. In an exercise of this increased power, in the 1950s, President Harry Truman effectively went around an enumerated power of Congress by sending troops into battle in Korea without a congressional declaration of war (Figure 11.6). By the time of the Kennedy administration in the 1960s, the presidency had assumed nearly all responsibility for creating foreign policy, effectively shutting Congress out.

Following the twin scandals of Vietnam and Watergate in the early 1970s, Congress attempted to assert itself as a coequal branch, even in creating foreign policy, but could not hold back the trend. The War Powers Resolution was intended to strengthen congressional war powers but ended up clarifying presidential authority in the first sixty days of a military conflict. The war on terrorism after 9/11 has also strengthened the president’s hand. Today, the seemingly endless bickering between the president and the Congress is a reminder of the ongoing struggle for power between the branches, and indeed between the parties, in Washington, DC. Presidential use of executive orders on domestic policy, and executive agreements on foreign policy, allowed in areas in which Congress has delegated authority to the president, have furthered this trend. When used, they replace legislation and treaties.⁹