The Constitution



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Congress

The Framers of the Constitution created Congress as a bicameral (two-chamber) legislature. They wanted to avoid a concentration of power in a single institution, and they wanted a balance between large and small states. They fully expected Congress to be the dominant institution of the federal government. Congress was generally dominant over the presidency until the twentieth century. Most of the nation's early political struggles-including those over slavery, admission of new states to the Union, internal improvements, tariffs, and business regulation-were played out in Congress.

Early in the twentieth-century the House revolted against the power of the Speaker and distributed power to party caucuses (associations of members of Congress created to advocate on behalf of a political ideology or constituency), the Rules Committee (the committee that decides which bills come up for a vote and in what order), and chairmen of standing-or permanent-committees. In the 1960s and 1970s, Democratic­ controlled Houses changed the rules so that powerful southern committee chairs could not block civil rights legislation. Subcommittees were strengthened, and the House became more democratic. Because of inefficiencies, the House moved back to strong Speakers in the 1990s. The Senate escaped many of the tensions encountered by the House because it is a smaller chamber. The smaller size of the Senate precludes the need for a Rules Committee. Prior to 1913, senators were elected by the state legislatures, so senators focused on pleasing party leaders and funneling jobs and contracts back to their states. The 17th Amendment changes the way senators were elected in 1913. As a result, senators were elected directly by the people and, as a consequence, became more interested in pleasing the general electorate. Senators are allowed to filibuster (give a prolonged speech or series of speeches made to delay legislative action). In 1917 Rule 22 was enacted, which allowed debate to be cut off if two­ thirds of the senators present and voting agreed to a cloture motion to end debate. It has since been revised to allow sixty senators to cut off debate.

Though the typical representative or senator is a middle-aged, white, Protestant male lawyer, the characteristics of legislators have changed: Prior to the 1950s, many legislators served only one term. In recent decades, membership in Congress has become a career, causing very low turnover. Although the Republican Revolution of the early 1990s brought many new members to the House, incumbents still hold a great electoral advantage. Most House districts are safe, with one party holding a significant numerical advantage over the other party. Senators are less secure as incumbents. Voters tend to support incumbents for several reasons. Media coverage is higher for incumbents. Further, incumbents have greater name recognition because of franking (mailing privileges), travel to the district, credit claimed for projects brought to a state or district (called pork-barrel projects), and individual case help.

Democrats were the beneficiaries of incumbency from the 1930s to 1992. During that time, the Democrats controlled both houses in twenty-five Congresses and at least one house in twenty-eight Congresses. In 1994 voters opposed incumbents because of budget deficits, scandals, and legislative-executive bickering. A conservative coalition of southern Democrats (who often vote conservatively on legislation) and Republicans today controls Congress.

There are three theories about how members of Congress behave in terms of voting and formulating policy: 1. Representational view - One view is that legislators vote to please their constituents in order to get reelected. This is most likely true when constituents have a clear view on an issue and the legislator's vote is likely to attract attention. Studies show that legislators are more likely to vote in accord with constituent desires in the areas of civil rights and social welfare but less so on foreign policy issues. 2. Organizational view - When constituency interests are not vitally at stake, legislators may respond to their party leaders or respected colleagues. 3. Attitudinal view - Another view is that a legislator's ideology determines his or her vote. Members of Congress are increasingly divided by political ideology. This has made the ideological view of voting more important. Taking cues from the party is of decreasing importance. Polarization among members has led to more partisan attacks and to less constructive negotiations on bills and policies.

The president pro tempore formally leads the Senate. Largely a ceremonial office, the president pro tempore is the member of the Senate with the most seniority in the majority party. The true leaders of the Senate are the majority and minority leaders, elected by their respective party members. The majority leader schedules Senate business, usually in consultation with the minority leader. Party whips keep leaders informed and pressure party members to vote in accord with the party line. Each party has a policy committee that schedules Senate business and prioritizes bills. Committee assignments are handled by groups of senators from each party. Committee assignments emphasize ideological and regional balance.

The greater size of the House gives its leadership more power. The Speaker of the House is the leader of the majority party and presides over the House. The Speaker's powers are formidable and include deciding who will be recognized on the House floor; interpreting rules on motions; assigning bills to committees; influencing which bills are brought up for a vote; and appointing members of special and select committees. The majority party in the House also elects a floor leader, called the majority leader. The minority party elects a minority leader. Each party has a whip, who is in charge of rounding up votes. Each party has a committee for making committee assignments.

Congressional rules have changed since the Republican takeover in the mid- 1990s. No committee chairman serves for more than six years. Seniority is less of a standard for selecting committee chairmen. The Senate is now less party-centered and less leader-oriented. Though party unity in voting is still evident, there is less cohesion among the parties than during the 1990s. Ideological splits between parties and party leaders' are more common. Caucuses-associations of members of Congress created to advocate on behalf of an ideology, constituency, or regional and economic interest-within and between the two major parties have become rivals to the parties in policy formulation.

Committees do most of the work in Congress. Committees consider bills, maintain oversight of executive agencies, and conduct Investigations. There are three types of committees: Standing Committee, Select Committee, Joint Committee. Both Senate and House committees have similar practices. The majority party has the majority of seats on the committees and elects the chair. Usually the ratio of Democrats to Republicans on a committee corresponds roughly to their ratio in that house of Congress, but on occasion the majority party will try to take extra seats on key panels, such as the House Appropriations or Ways and Means committees. Chairs are usually the most senior members of the committee, despite the fact that the seniority system has been under attack in both parties in recent decades. Two House committees are noteworthy for their prominence in the dynamics of the House. The House Rules Committee is unique to the House because it reviews all bills except revenue, budget, and appropriations bills coming from a House committee before the bills go to the full House. The House Ways and Means Committee is powerful because it drafts tax legislation.

Congressional staffs grew rapidly during the twentieth century. Staffs have several important tasks, but perhaps the most important is taking care of constituency service (sometimes called case work). Approximately one-third of a congressman's staff works in the home district, and almost all have at least one full-time district office. Staff members also have legislative functions that include devising proposals, negotiating agreements, organizing hearings, and meeting with lobbyists and administrators. Congressional committees also have their own staffs, usually one for the majority side and one for the minority side. Members of Congress can no longer keep up with increased legislative work, so they must rely heavily on their staffs. Some agencies have been created to work with Congress, The General Accountability Office (GAO) Formerly known as the General Accounting Office, the GAO continues in its traditional role of auditing the money spent by executive departments. In addition, the GAO now investigates agencies and policies and makes recommendations on almost every aspect of government. The Congressional Budget Office (CBO) The CBO advises Congress on the likely economic effects of different spending programs and provides information on the costs of proposed policies.

The following procedures and rules can influence the passage of a bill:

Multiple referrals : Although sending bills to committees is necessary and valuable, committees fragment the process of considering bills dealing with complex matters. To deal with this problem Congress has established a process whereby a bill may now be referred to several committees that simultaneously consider it in whole or in part. This process is called a multiple referral. Following the 1995 reforms, these can be done only sequentially (one committee acting after another's deliberations have finished) or by assigning distinct portions of the bill to different committees (in the House only).

Discharge petitions : In order to keep alive a bill that has stalled at the committee level, a discharge petition bringing a bill to the floor for immediate consideration must be signed by 218 members in the House (in the Senate, any member can move for a discharge petition).

Limitations on the amount of debate time allotted to a bill and on the introduction of amendments are known as closed rules and are imposed in the House by the Rules Committee.

An open rule permits amendments from the floor on a particular piece of legislation and comes from the Rules Committee in the House.

A restrictive rule permits some amendments but not others.

A quorum is the minimum number of representatives required to be in attendance to conduct official business.

A quorum call is a calling of the roll in either house of Congress to see whether there is a quorum present.

A cloture motion (signed by at least sixteen senators) provides for the end of a debate on a bill if three-fifths of the members agree.

Double-tracking is a method to keep the Senate going during a filibuster whereby a disputed bill is temporarily shelved so that the Senate can go on with other business.

A voice vote is a method of voting used in both houses in which members vote by shouting yea or nay.

A division vote, also known as a standing vote, is a method of voting used in both houses in which members stand and are counted.

A teller vote is a method of voting used only in the House. Votes are counted by having members pass between two tellers, first the yeas and then the nays. .

A roll-call vote is a method of voting used in both houses, members answer yea or nay when their names are called.

Many Americans favor term limits because of the high reelection rate of incumbents and the perception that career politicians act more out of self-interest than out of public interest. The Supreme Court has ruled term-limit proposals unconstitutional. Those opposing term limits argue that they would likely produce amateur legislators who would be less prone to compromise and more influenced by lobbyists. Other reforms aim at reducing the power and perks of congressmen, claiming, for instance, that franking (or mailing) privileges need to be regulated and that pork-projects aimed at benefiting a congressman's home district or state-needs to be trimmed to avoid wasteful projects.

Americans continue to question the ethics of legislators. Scandals do occur in Congress, and most cries for reform are aimed at rules about the, influence of money. Ethics codes and related reforms enacted in 1978, 1989, and 1995 have placed members of Congress under tight rules governing financial disclosure. The problem with these codes is that they assume that money is the only source of corruption. This is certainly not the case. For example, corruption can also come in the form of bargaining, involving the exchange of favors and votes, among members of Congress (known as logrolling) or between members of Congress and the president. In addition, jobs offered to former legislators create an ethics issue. While there are limits on how soon former legislators can lobby their former colleagues on certain issues, the rules are vague and their intentions are often circumvented.

The Presidency

Unlike parliamentary systems that often assure that one party will be in power, American elections often produce divided government (a government in which one party controls the White House and a different party controls one or both houses of Congress). Even in periods of unified government (when the same party controls the White House and both houses of Congress), presidents and congresses can often work at cross-purposes. Conflicts between the president and Congress are the result of separation of powers.

The Framers of the Constitution had several fears that shaped the powers of the presidency: they feared the military power of the president; they feared presidential bribery in ensuring reelection; they feared lack of balance between the legislative and executive branches. The electoral college was the answer to some of these fears. The original system included the following: 1. Each state would choose its own method of selecting electors, whose number would match the state's number of representatives in Congress. 2. Electors would meet in each state capital and vote for president and vice president. 3. If no candidate won a majority, the House would decide the election, with each state delegation casting one vote. (The authors of the Constitution thought this would happen often; instead it happened only twice – 1800 and 1824.) Large states would have their say, but small states would have a minimum of three votes. Ultimately, because of our two-party system, the electoral college has worked differently than expected. Today there is a winner-take-all system in forty-eight states. Only in very rare cases does an elector vote for a presidential candidate other than the one who carried his or her state. The Framers settled on a four-year term, and George Washington set the precedent of serving no more than two terms. Later, after FDR, the Twenty-second Amendment limited the presidency to two terms.

The Framers gave the president the following constitutional powers: commander in chief, grant pardons and reprieves, call special sessions of Congress, receive ambassadors, execute laws, appoint judges, ambassadors, and other officials, make treaties, and sign or veto laws. Perhaps even greater than these explicit presidential powers have been those informal powers that lie in manipulating politics and public opinion. Americans increasingly look to the president for leadership and hold him responsible for a large and growing portion of our national affairs.

The executive branch includes four areas: 1. The White House Office - The president's, closest assistants have offices in the White House, usually in its West Wing. They are not confirmed by the Senate and can be hired and fired at the president's will. There are three ways that presidents can organize their personal staffs: - Pyramid structure - Circular structure - Ad hoc structure. 2. The Executive Office of the President - Agencies in the Executive Office report directly to the president and perform staff services for him. Unlike the White House staff, Executive Office appointments must receive Senate confirmation. The principal agencies are the Office of Management and Budget (which assembles the budget), the Central Intelligence Agency, the Council of Economic Advisers, the Office of Personnel Management, and the Office of the U.S. Trade Representative. 3. The cabinet - The cabinet is composed of the secretaries of the executive branch departments and the attorney general. There are fifteen major departments. Some of the oldest include State, Treasury, Defense, and Justice. The secretaries become advocates for their departments, but they also serve at the presidents will. Heads of other agencies; such as the chief of the Environmental Protection Agency, have been elevated to cabinet-level status. Some cabinet departments and secretaries are inevitably closer to the president than others. 4. Independent agencies and commissions - The president. appoints members of agencies that have quasi-independent status. The difference between an executive agency and an independent agency is not precise. In general, heads of independent agencies serve for a fixed term and can be removed only for cause; executive agencies have heads that can be removed at any time. Examples of independent agencies include the Federal Reserve Board and the Consumer Product Safety Commission. Executive agencies include the Postal Service and all cabinet departments.

Presidents rely heavily on persuasion.

Presidents have three audiences to persuade: fellow politicians and leaders in the nation's capital; party activists and officials outside of Washington; and the general public.

Presidents try to transform popularity into congressional support for their programs, though this is more difficult than it used to be. Presidential coattails (by which members of Congress are elected based on the president's popularity) seem to be a thing of the past. Congressional elections are relatively insulated from presidential elections because of weakened party loyalty and the direct relationships. congressional members have with constituents. Nevertheless, Congress tends to avoid the political risks of opposing a popular president by passing more of that president's legislative agenda.

A president is generally most popular immediately after he is elected-the "honeymoon period." Most will decline in popularity as the term continues. A sluggish economy, scandal, and an unpopular war, all can hurt a president's popularity. National emergencies, such as the attacks on September 11, 2001, can give the president at least a temporary spike in popularity.

Another form of presidential power is the ability to prevent other branches of government from pushing their agendas. Presidents can use their powers by saying "no" in a number of ways: 1. Leaving things out of the budget. 2. Using the veto, and sometimes the "pocket" veto (note that the line item veto has been declared unconstitutional). 3. Impoundment of funds - From time to time presidents have refused to spend money appropriated by Congress. In 1974, Congress limited the power of impoundment.

Presidents can also use executive privilege - Confidential communications between the president and his advisers do not have to be disclosed. The justification for this practice has been the separation of powers and the need a president has for candid advice. During the Watergate scandal, President Nixon refused to turn over tape recordings of White House conversations. The Supreme Court, (U.S. v Nixon) ruling on executive privilege for the first time, held that there was a sound basis for the practice, particularly in military and diplomatic matters, but there was no immunity from judicial process under all circumstances.

A vice president becomes president when a president dies (8 times), resigns (1 time) or is convicted of a bill of impeachment (never). The issue of succession also arises when a president becomes seriously ill and is unable to perform his duties. The first attempt to clarify succession was the Succession Act of 1886, which was amended in 1947. At first this designated the secretary of state as next in line for the presidency should the vice president die, followed by the other cabinet officers in order of seniority. But this meant that the president could pick his own successor by choosing the secretary of state. A 1947 amendment to the law made the Speaker of the House and the president pro tempore of the Senate next in line for the presidency. This also seemed like a poor solution because those positions are often filled based on seniority and not on executive skill. Both problems were addressed in 1967 by the Twenty-fifth Amendment, which allows the vice president to serve as "acting president" whenever the president declares that he is unable to discharge the powers and duties of his office or whenever the vice president and a majority of the cabinet declare that the president is incapacitated. The amendment deals with the succession problem by requiring a vice president who assumes the presidency to nominate a new vice president. This person takes office if the nomination is confirmed by a majority vote of both houses of Congress.

Presidents can be removed upon impeachment and conviction. The House votes to indict the president. The impeached president must be convicted by a two-thirds vote of the Senate (which sits as a court, hears the evidence, and makes its decision) to be removed. Only two presidents-Andrew Johnson and .Bill Clinton-have ever been impeached. Richard Nixon surely would have been if he not resigned before a vote was taken in the House.

The Bureaucracy

The Constitution made scarcely any provision for a bureaucracy. The president appoints the heads of executive agencies and nominates cabinet secretaries, subject to Senate confirmation. Congress has the right to appropriate money, to investigate the agencies, and to shape the laws they administer. As a result, both Congress and the president have control over the bureaucracy. The appointment of public officials has changed over time. These appointments are significant because officials affect how laws are interpreted and the tone and effectiveness of their administration. Patronage-appointments based on political considerations ­dominated appointments in the nineteenth and early twentieth centuries. Patronage rewarded supporters, created congressional support, and built party organizations. The Pendleton Act of 1883 began a slow but steady transfer of federal jobs from the patronage system to the merit system (hiring on the basis of an individual's qualifications for the job). After the Civil War, industrialization and the emergence of a national economy necessitated federal regulation of interstate commerce, foreshadowing the growth of government agencies. The numbers of agencies and bureaucrats grew. The new agencies provided services like administering military pensions. They did not create a huge body of regulations because there was still a belief in limited government, and states' rights continued to be important. There was a fear of concentrated discretionary power, and there was a commitment to laissez faire policies.

The Great Depression and World War II led to increased government activism. Although there has been only a modest increase in the number of federal government employees since 1960, there has been significant growth in the number of privately contracted employees as well as state and local government employees. Far more important than any of these trends, however, is the growth of discretionary authority-the ability of agencies to choose courses of action and to make policies not set out in the statutory law. Congress has delegated substantial authority to administrative agencies in three areas: 1. paying subsidies to particular groups and organizations in society (for example, farmers, veterans, scientists, schools, universities, hospitals) 2. transferring money from the federal government to state and local governments through grants 3. devising and enforcing regulations for various sectors of society, particularly the economy, schools, health care, roads, and telecommunications

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