Congress

In the next section of this course we will be looking more at the different branches of the Federal government, beginning with Congress.

Although since the 20th century more power has been concentrated in the executive branch of government, the original intent was to allow the Congress to be most active branch of government, with the executive merely assisting the Congress in carrying out (or executing) the laws. This is found in John Locke's liberal political philosophy, carried over into the Constitution, with Madison arguing for the importance of checks and balances. The tripartite division of legislative, executive, and judicial power has become a cornerstone of constitutional theory, most states maintain this separation of powers, even communist states like China, although just a formality. However, criticisms of formalism can also be directed at the US, as Sheldon Wolin argues.

Henry Clay speaking to the Senate on the Compromise of 1850;
Webster and Calhoun are pictured also

The highpoint for the power of Congress may have been in the mid-19th century, until the Civil War, under the leadership of Henry Clay, John C. Calhoun, and Daniel Webster, who delivered the "7th of March Speech" to Congress. Whatever individual talents and charisma (not to mention flaws) they may have had, is at least equally balanced by the important role they played in Congress. Each came to represent the geographical regions of the country at that time, each region's interests in conflict with the others: Webster, representing the North; Calhoun, the South; and Clay, the "West" at that time (like Kentucky). More specifically, they spoke for the dominant economic interests of each region: Webster, the bankers, merchants, and industrialists (who donated quite openly); Calhoun, the plantation owners; and Clay the small farmers competing against slave labor, but also favoring expansion West (Clay himself owned slaves). It is interesting that neither served as President of the US, although all had positions in both the House and Senate, and the executive branch, at one point or another, ranging from Vice-President to Secretary of State, with Clay making three unsuccessful attempts for the Presidency. It is rumored that Muhammad Ali (born Cassius Clay) was a distant relative of Clay (both from Kentucky).

Compared to the men who served as President during this time, perhaps they were more dynamic personalities, their chief work was forging legislative comprises that could be accepted by the differing regions, who in reality were reaching the breaking point due to the social contradictions created by slavery. Keep in mind that every time a new state was admitted into the Union, it would re-start a fierce debate over the expansion of slavery, will the state be a "slave state" or "free state"? This is why Webster, a Northerner, would support the Fugitive Slave Act, all in the name of compromise. Since the North was the more populated region, Southerners feared laws would be passed that limited the spread of slavery, or even its abolishment, and, of the three, Calhoun was the most fearful of the federal government and advocate for "states' rights".  Of course, these kinds of compromises define the Constitution itself, the 3/5 compromise, equal representation in the Senate, even the electoral college, etc. Despite their efforts, and various legislative (and moral) compromises, they could not stop the nation's descent into civil war.

During the Civil War, Abraham Lincoln exerted unprecedented authority at that time, and its important to point out, especially as Lincoln has become something of a secular saint, that he was a very crafty politician, and a very powerful president, although of course this concentration of power resulted from the necessities of the war itself. After the Civil War, the Radical Republicans in Congress struggled against the growing power of the executive branch, culminating in the impeachment of Andrew Johnson, who was one vote short of being removed from office. Even failing to convict the President, Congress re-asserted its supremacy, and continued to dominate the agenda of government into the 20th century.

We have already covered the basic structure of Congress and how members are elected. The U.S. Congress is divided up into two houses, the House of Representatives and the Senate. The House is the larger and more democratic body, made up of 435 representatives drawn from multiple districts within each state. Representatives serve two-year terms with no term limits, meaning there is no limit to the number of times they can be re-elected. Senators serve six-year terms also with no term limits. However, until now we have not spent that much time covering the problematic issue of elections for the House, this is known as gerrymandering. The origins of the term are not important, but the meaning of the term is not very clear (perhaps intentionally). It refers to the strategy of dividing up districts in each state to benefit your party. Besides this issue, we should cover how the leadership structure in Congress works, that in many ways is a system of representation within our system of representation, as well as how the system of committees in Congress works.

The House is supposed to be more democratic, because they represent smaller districts, so they are accountable to smaller groups of people, who make up those districts. Although approval ratings for Congress are low, the re-election rate of members of Congress is almost 90 percent, meaning once someone is elected, as the "incumbent" in office, they have an enormous advantage over challengers. It also suggests that while people may disapprove of the actions (or lack of action) of Congress as a whole, most are satisfied with their Congressional representation.  Members of Congress do not react the same way in every issue area, in some areas, they are more representative of what the people in district or state want, in some areas they seem to act with more independence. Generally speaking, members of Congress seem to be more receptive to their districts or state on domestic issues, but on foreign affairs issues act more on their own.

The number of representatives from each state depends on the population of each state. Changes in the population, changes the number of representatives from each state. So for example a state like New York which has a declining population over the last twenty years has lost representatives, while states like Florida or Texas which have growing populations have seen increases in their representation over the last few decades.
http://en.wikipedia.org/wiki/List_of_U.S._states_and_territories_by_population

One important consideration in determining electoral districts for the House, is what has come to be know as "gerrymandering." State legislatures in each state are tasked with re-drawing the electoral districts in accordance with population changes in the state. This is normally done every ten years, but this practice is falling out of use, as states intervene more frequently. Predictably, this has a partisan bias, meaning simply, that whatever party has a majority in the state will seek to draw the boundaries in the district to benefit their party and disadvantage the other party. This has led to some oddly shaped electoral districts, like this one in Chicago (known as the earmuff district).

With the passage of the Voting Rights Act in 1965, federal authorities were given the right to redraw districts in Southern states to empower racial minorities and allow them to elect representatives, this is sometimes referred to as "minority-majority" districts, meaning that minority areas are grouped together in order to form a majority in a district.  The 4th district in Illinois, or earmuff district is one such example.
http://en.wikipedia.org/wiki/List_of_majority_minority_United_States_congressional_districts

Royden and Li argue gerrymandering is a critical cause in the Republican takeover of the House in 2010, also leading to a situation where Republicans received less votes overall in 2012 House elections, but maintained a majority, as well as other House elections. Keep in mind the entire House is up for election every two years, unlike the Senate, so the party that receives more votes should, under normal circumstances, have a majority. Building on this theme, Dave Daley, in the charmingly titled book Ratf**ked (2016), argues since 2010, Republicans have put in motion a plan known as REDMAP to use Republican controlled state legislatures, to redistrict swing states even more to favor Republican candidates.
https://www.fairvote.org/david_daley

Royden and Li use three different ways of measuring gerrymandering, and conclude based on their findings that House seats are heavily biased in favor of Republicans. The exact ways in which they measure are hard to understand and fairly technical, the point however is that by using these measures which seem fairly objective, shows conclusively that the House elections are biased. Not only is their bias, but this also changes the majority in the House for at least two Congressional elections. According to them: "Democrats needed 17 more seats in 2012 and 24 more seats in 2016 to gain a majority, both of which fall within the range of seats won by Republicans in those years due to partisan bias." Democrats did eventually capture the House in 2018. With the upcoming midterm elections coming up, and the majority in the House (and Senate) being up for grabs, will the Democrats be able to retain a majority? Given the unpopularity of the Biden administration it seems unlikely, and with partisan bias this even more sways the odds in favor of Republicans. On the other hand, Republicans are also widely despised by a large segment of the population, especially as they are responsible for taking away the right to an abortion, their role in the Jan. 6 attempted coup, and their refusal to do anything about mass shootings in this country, and of course many other issues ranging from global warming to healthcare. The point of gerrymandering though is that it reduces the role of popular elections, less popular choices can still win with partisan bias.

Royden and Li are also able to identify the most heavily gerrymandered states which are Michigan, North Carolina, and Pennsylvania. Other states that show evidence of heavy bias, though maybe not as significant are Texas, Florida, Virginia, and Ohio. Texas and Florida are among the five largest states in the country and contribute a significant amount of Representatives to the House. Although Democrats are also guilty of this, it is nowhere near as significant as the level of bias in favor of Republicans. Royden and Li seem to favor courts or other "impartial" institutions to redistrict states to be more fair. However, with the Republican takeover of courts in this country, can you really count on them to be fair?

The Senate has a more equal representation with two senators from each state who represent the entire state. There are 100 senators altogether. In the Senate, the big issue, of course, is the "filibuster," another obscure term. In the case of the filibuster, because of the rules of the Senate, a Senator may speak for an unlimited amount of time, provided they do not leave the Senate chamber. This allows them to stall the legislative process completely, and gives individual senators significant power and leverage over the body as a whole. Until the Civil War, the filibuster was rarely used, although, usually, only the threat of a filibuster was enough to force the Senate body to back off from certain issues, like the tariff, or even slavery. Eventually, the increased use of the filibuster after the war, forced the Senate to evolve a set of rules, known as "cloture." To end a filibuster, or vote for cloture, the Senate needed a 2/3 majority, although this requirement was later reduced to 3/5 of a majority, which under the current size of the Senate would be 60 votes.

In Malcolm X's speech, "The Ballot or the Bullet," he also speaks to these issues. This was X's most famous speech and the title of it is clear, either change is going to happen through democratic means or through violence. While X is commonly known by the phrase "by any means necessary" which is often interpreted as a call for political violence, the statement should be taken literally if there are means of changing things peacefully then they should be used, but if not, or if it becomes impossible to do non-violently, then violent means should be used. This is a hard message for many to digest, however it is hard to argue with the fact that revolutionary violence has been used to advance just causes, including in America. On the other hand, one could argue the power of the state is so much today that one could not wage a successful violent struggle against the state, or even for that matter against far-right forces in this country who are heavily armed.

In his speech X speaks about the filibuster as a means of denying civil rights to black Americans, even though the Democratic majority in Congress would not have been possible without black votes. He says:

"It was the black man's vote that put the present administration in Washington, D.C. Your vote, your dumb vote, your ignorant vote, your wasted vote put in an administration in Washington, D.C., that has seen fit to pass every kind of legislation imaginable, saving you until last, then filibustering on top of that. And your and my leaders have the audacity to run around clapping their hands and talk about how much progress we're making. And what a good president we have. If he wasn't good in Texas, he sure can't be good in Washington, D.C. Because Texas is a lynch state. It is in the same breath as Mississippi, no different; only they lynch you in Texas with a Texas accent and lynch you in Mississippi with a Mississippi accent. And these Negro leaders have the audacity to go and have some coffee in the White House with a Texan, a Southern cracker -- that's all he is -- and then come out and tell you and me that he's going to be better for us because, since he's from the South, he knows how to deal with the Southerners. What kind of logic is that? Let Eastland be president, he's from the South too. He should be better able to deal with them than Johnson."

 
He also refers throughout to the Dixiecrats, or conservative Southern Democrats that were able to block civil rights legislation. Even today, the influence of conservative Democrats are able to block legislation as seen with Joe Manchin and Kyrsten Sinema.

By the 1970s, the Senate which until then had decided most laws by a simple majority, now effectively changed its rules again, so that most important laws passed through the Senate would require 60 votes as a norm. It is interesting to point out that this change occurs, around the same time as gerrymandering starts to significantly increase, according to Ingraham's research, and as restrictions on campaign finance are overturned by the courts. So, at the same time in which African-Americans begin to gain the right to vote in this country, the rules of the system itself are changed to be even less democratic, thanks to gerrymandering and the filibuster. Similar developments happen for the Democratic Party itself, like the introduction of the highly unpopular "superdelegate" system, also introduced in the 1970s.

In modern times, the most significant law impacted by the filibuster has been the Affordable Care Act, or Obamacare. Passage of Obamacare with a "public option" (slightly more clear language) was made impossible with the death of Senator Ted Kennedy in 2010, Democrats in the Senate now lacked the 60 votes to pass a public option. However, late in the Obama administration, Senate leaders unveiled a new legislative maneuver, known as the "nuclear option," which would change the 60 vote rule back to a simple majority (51 votes), and now used by Republicans in Congress. 

Under the Trump administration, Republicans used the nuclear option to pass Trump's tax plan, and confirming, not one, but two supreme court justices. Almost every supreme court judge nomination, in modern times, has received at least 60 votes, except for Clarence Thomas and Samuel Alito, also passed during Republican administrations. For example, Obama nominated judges, Sotomayor and Kagan, had 68 and 63 votes, respectively. His third nomination never received a vote, which went to Trump.  This leads to the question, will Democrats bring back the filibuster?
https://www.senate.gov/pagelayout/reference/nominations/Nominations.htm

Of the two branches of Congress, the House has a more complicated leadership structure, due in part both to its larger size and the rules of debate in the House. At the top, is the Speaker of the House, who directs the agenda and issues that are debated. In theory the Speaker is supposed to be non-partisan and often refrains from voting on legislation, but over the last twenty years or so the position has become more partisan. Besides the Speaker, there is a Majority and Minority Leader, and a Majority and Minority Whip. The leaders then oversee the direction of each party in the House and coordinate the agenda that each party is trying to put forward. The Whips are responsible for making sure party members vote the right way and enforce party discipline. The Senate has a Majority and Minority Leader, but lacks the other leadership positions.

Both houses of Congress are further divided into several committees. It is at the committee level where most of the hard work of passing legislation is done, this is also the level at which so-called special interests or factions have the most influence. Committees are often just a few to maybe twenty or so people, who debate the fine points of each piece of legislation and try to figure out the best ways to make the legislation practical. Due to the smaller number of people in the committees and the relative low visibility of committee meetings, this again allows interest groups to have more influence over the legislation. Before the entire House or Senate votes on a piece of legislation it goes through a committee first. Of course both the House and Senate must past the same legislation before it can become law. There is even a special committee that works to resolve differences in a bill if either part of Congress passes a bill that is similar but somewhat different from the other bill, the final law must be identical in both the House and Senate.
http://www.house.gov/committees/
http://www.senate.gov/pagelayout/committees/d_three_sections_with_teasers/committees_home.htm

Although most of the committees overlap with each other there are some differences. In the House for example, there is the "Ways and Means Committee, this committee as stipulated in the Constitution is charged with creating all laws regarding taxation. Tax laws must always originate in the House. Once passed, they are referred to the Senate Finance Committee who can either approve or reject the proposed law. All other proposed laws, can originate in either House or Senate and does not have to follow a specific order, although, again, all laws must be approved by both before it becomes an official law. Although the House has a Foreign Affairs committee, it has much less power than the Senate Foreign Relations committee, again because of the Constitution, power is given only to the Senate to approve treaties with foreign countries, the House does not have to approve to make it official. Some other aspects of legislation have changed as well. For example regarding trade, before the Great Depression this was an area that Congress controlled. Trade law involves raising or lowering tariffs on foreign imports. A tariff is like a tax, so this was an area reserved for the Ways and Means Committee. 

Since the 1930s, more power has been granted to the President to conduct trade deals with Congress taking only a secondary role of approving or disapproving but not directing the content of trade deals. This fairly radical change occurred because Congress tended only to raise tariffs on foreign imports, thus raising the prices of important products for consumers and producers of goods. The reason for this is again due to the influence that lobbyists and interest groups have over members of Congress. The President is not influenced as much by interest groups, and so is believed to make trade deals that are more beneficial for the whole of the country, not local interests in states. For example, Congressional members in steel producing areas like Pennsylvania would tend to pass laws that would benefit the industry, by making foreign imports of steel more expensive, whereas the President might act to lower tariffs on foreign steel since it may be more beneficial for the country as a whole. This theory seems to be disproved, however given the current administration, although it does highlight the importance of political ideology.

Once Congress, as a whole, has approved a bill, it goes to the President for signature, where if signed, becomes official law. However, the President has what is called "veto power" meaning he can refuse to sign the bill, in which case it will go back to Congress for further debate and amending. Although it is rare, Congress can override a Presidential veto if both parts of Congress approve the bill again with a 2/3 majority in both.


Next class, we will talk about the Presidency and executive branch.