Module 05 Sections
Congress: An Overview
The powers of Congress are outlined in Article I of the United States Constitution. The Founders defined the powers of Congress in the first article of the Constitution because it was Congress, in a representative republic, which would logically wield the most power. As the most powerful branch in the government, Congress commands both fear and respect. In a limited government, the legislative branch has to be both effective and restrained. This is precisely what Madison spoke of in Federalist No. 51 when he said the government must first be able to control the governed, and second be obliged to control itself. While the three branches of the United States government have equal amounts of power in many respects, in some important respects it is a government of legislative supremacy.
The checks and balances applied to Congress are thus especially important.
The Powers of Congress
So what are the powers of Congress? Generally speaking, Congress has vast authority over the two most important powers given to any government: the power of force and the power of money. Article I, Section 8 lists the various powers of Congress. According to the Constitution, Congress can lay and collect taxes, deal with indebtedness and bankruptcy, impose duties, borrow and coin money, provide for the common defense and general welfare, regulate interstate commerce, undertake public works, acquire and control federal lands, promote science and useful arts, and regulate the militia.
Additionally, Congress has the power to declare war, deal with piracy, regulate foreign commerce, and raise and regulate the armed forces and military installations. Congressional authority over war and military issues is supreme; even the President as Commander-In-Chief of the military must obey the laws and orders of Congress if Congress chooses to assert its constitutional authority.
Have a look at Article I of the Constitution here, paying special attention to Section 8:
Listen to 60-Second Civics: “Episode 1997: Powers of Congress in the Constitution” for a broad overview on the powers of Congress:
The many powers of Congress, when listed in this manner, tend to obscure the primary duty of the legislative body.
The primary concern of the United States Congress is making laws for the United States in a representative and deliberative manner.
The House of Representatives, the Senate, and Representation.
Both the House of Representatives and the Senate are designed to be representative bodies. They are founded on distinctly different models of representation, however, and serve distinctly different purposes within the American system. Together, they are the United States’ bicameral (two houses) legislature.
The House of Representatives provides representation based on population. There are currently 435 members of the House, each representing roughly the same number of people within their districts. Because population varies from state to state, some states have very large congressional delegations in the House of Representatives while others send only one person to the House.
Here is a link to the House of Representatives web site. Poke around a bit here to get a sense of the House:
You can look at the current House rules here:
The Senate, on the other hand, provides representation based on statehood. Each state sends two Senators to United States Senate. There are therefore currently 100 senators.
Have a look at the Senate’s web site now at the link below:
This bicameral legislative model guarantees that a balance will be struck between the needs, wants, and desires of the general population of the United States, and the needs, wants, and desires of the states themselves.
There is a very solid, detailed examination of the legislative process on the Senate’s web page. The legislative process is here described from the Senate’s perspective, but it is a very thorough treatment nonetheless. Please read it here:
Elections are doubtlessly the most visible element of the American Congress. Most of the necessary information is covered in the Constitution itself, and in Federalist 52 and 62 respectively, but there are a few details that should be emphasized. First, every member of the House of Representatives is up for reelection every two years, but only 1/3 of the Senate is at risk. It is thus (theoretically) possible that the entire membership of the House could change in one year, but not even a majority of the Senate could. This has a profound influence on the composition and behavior of the two houses. The House was designed to reflect the immediate will of the people, or their short term interest. The Senate, on the other hand, was designed to represent the long term interest of the people. These things will be explained more fully in the assigned Federalist numbers.
For now, have a look at this video on congressional elections:
Committees, Parties, and Organization
The committee system plays a very meaningful role in the legislative process. The bicameral nature of the United States Congress is also important, and presents many structural impediments to formation of new law. In addition to these two elements, political parties play a very meaningful role.
There is no mention in the United States Constitution of political parties. As a matter of fact, the Constitution makes only one provision for the organization of business in Congress at all. In Article I, each chamber is given a presiding officer. In the Senate, this officer is known as the President. This position is filled by the Vice President of the United States. The Constitution also allows the Senate to elect a President pro tempore, which is a temporary President, to serve in the absence of the Vice President. In the House of Representatives, the presiding officer is known as the Speaker of the House, and is elected by the entire House membership.
Beyond these considerations the Constitution is silent regarding the conduct of congressional business. As early as the first Congress, it was political parties that provided the organization needed by the House and Senate.
While the parties have changed somewhat over our history, we have always had a two party system, and the two parties provide Congress with its internal structure. Committee assignments are decided by the parties, and each party has its own legislative agenda. While parties are not as strong as they once were, they are clearly a powerful political force.
You can get a sense of the committee system of Congress here:
The legislative process in America is complex and difficult, but it was designed to be so. The Framers of the Constitution did not strive to create an efficient government; they sought to make governance difficult in order to protect the rights of the people from a powerful, central authority. Congress is defined by constitutional mechanisms that cannot be changed, at least not without benefit of constitutional amendment. We are thus left with the process we have, for both good and for ill. On the plus side, it is very difficult for Congress to engage in nefarious practices which would strip the American people of their rights. On the minus side, it is very difficult to conduct business, even necessary business.
You can get a brief overview of congressional leadership here:
The House of Representatives and Federalist 52
Publius takes up the House of Representatives in earnest in Federalist 52, the first number after the separation of powers sequence. Publius presents the governing institutions in the same order that they are presented in the Constitution, and he begins, as the Constitution does, with the part of the federal government which is closest to the people: Congress. Within the Congress, too, Publius begins with the chamber most closely aligned with the people: the House of Representatives.
It bears remembering at the outset that in the design of the Constitution of 1787, the House was the only part of the federal government which was to be directly decided by the people at large. The Senate, of course, was to be elected by the state legislatures. The Presidency was decided by the Electoral College. The Supreme Court was decided even more indirectly, then as now.
The House, though, was designed to be the people’s house. And this becomes evident in the opening paragraphs of Federalist 52.
The first issue addressed by Publius is voting qualifications. It is often remarked that the Constitution limited voting to males, or white males, or white males with property. All of these assertions are factually incorrect. What the Constitution did was to attach voting for the House of Representatives to state standards. If one was allowed to vote for the most numerous branch of his own state legislature, then he was also permitted to vote for the House of Representatives.
Publius presents the reasoning behind fixing the standard in this manner thusly:
It must be satisfactory to every State, because it is conformable to the standard already established, or which may be established, by the State itself. It will be safe to the United States, because, being fixed by the State constitutions, it is not alterable by the State governments, and it cannot be feared that the people of the States will alter this part of their constitutions in such a manner as to abridge the rights secured to them by the federal Constitution.
Having thus dispensed with the thorny issue of who could vote for the House, Publius next addresses the qualifications for holding office. This too, is presented in simple and straightforward terms:
A representative of the United States must be of the age of twenty-five years; must have been seven years a citizen of the United States; must, at the time of his election, be an inhabitant of the State he is to represent; and, during the time of his service, must be in no office under the United States. Under these reasonable limitations, the door of this part of the federal government is open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession of religious faith.
The two most important considerations of the House, who can vote and who can serve, are thus concluded in very brief and plain terms. There are yet some important concerns to address. The first of these marks a return to more theoretical concerns, if only for a moment.
Publius opines that government must share a common interest with the people if liberty is to be maintained. Given the nature of the House, this is where the connection with the people will be most evident. The other half of the legislature, the Senate, is structurally removed from the people by virtue of the indirect nature of Senate elections, and the other two branches of government are removed from the people further still. But the House is attached to the people most directly, and this is an absolute necessity in republican government. Publius explains:
As it is essential to liberty that the government in general should have a common interest with the people, so it is particularly essential that the branch of it under consideration should have an immediate dependence on, and an intimate sympathy with, the people. Frequent elections are unquestionably the only policy by which this dependence and sympathy can be effectually secured. But what particular degree of frequency may be absolutely necessary for the purpose, does not appear to be susceptible of any precise calculation, and must depend on a variety of circumstances with which it may be connected. Let us consult experience, the guide that ought always to be followed whenever it can be found.
So the common interest with the people is secured with frequent elections, and the House elections are the most frequent in the federal government. Publius spends a good deal of time next sifting through various examples of different electoral schemes, covering England, Ireland, and the American colonies in general terms, looking for a rational answer to the question of how frequently elections should be held. The colonies were of particular interest to Publius, as they varied in the period between election from one to seven years. Ultimately, though, he concludes that “the liberties of the people can be in no danger from biennial elections.”
Which brings us to the length of time a House member serves. A two year term was decided upon by the Convention, but there was little justification provided for the decision. In Federalist 53 Publius asserts that there is nothing special about one year. One can quickly assume that there is similarly nothing special about two years either. Still, a number was needed, and the thought of annual elections (which some wanted) seemed too extreme. What was needed was frequent and regular elections, and a biennial answer seemed to all to be a reasonable answer.
The two year term, though, brings with it its own problems. The House was designed to be the most representative part of the federal government, and as such, whatever problems were evident in American society would also be evident in the House. The strength of the House is thus also the weakness of the House. Most of the time, this is not a concern. There are times, though, when passions in the electorate lead to a new House of Representatives (the entire membership of the House stands for election every other year, thus wholesale change can occur). When this occurs, there would be little to restrain the House from acting. Indeed, any check on the House would have to be external to the House.
The Senate and Federalist 62
The Senate was designed to be the first external check on the House. Whereas the House was to represent the people directly, the Senate provided indirect representation. As covered above, the Senate was designed to represent the states as such, and the original method of election reinforced this institutional role. This was finally changed in 1913 with the ratification of the 17th Amendment.
Publius presents the Senate in Federalist 62 in much the same way that he presented the House in #52, beginning with qualifications. The qualifications for the Senate are somewhat elevated relative to those for the House. Publius presents them thusly:
The qualifications proposed for senators, as distinguished from those of representatives, consist in a more advanced age and a longer period of citizenship. A senator must be thirty years of age at least; as a representative must be twenty-five. And the former must have been a citizen nine years; as seven years are required for the latter. The propriety of these distinctions is explained by the nature of the senatorial trust, which, requiring greater extent of information and stability of character, requires at the same time that the senator should have reached a period of life most likely to supply these advantages; and which, participating immediately in transactions with foreign nations, ought to be exercised by none who are not thoroughly weaned from the prepossessions and habits incident to foreign birth and education. The term of nine years appears to be a prudent mediocrity between a total exclusion of adopted citizens, whose merits and talents may claim a share in the public confidence, and an indiscriminate and hasty admission of them, which might create a channel for foreign influence on the national councils.
The somewhat more stringent qualifications for the Senate would lead, Publius hoped, to a different sort of person in the body. Those who served in the Senate would be, he hoped, more stable, more wise, and more prudent.
This desire points to the nature of the Senate in relation to that of the House. Whereas the House is prone to upheaval and sudden shifts, mirroring the passions of the electorate, the Senate was designed to be more deliberative in nature. Put bluntly, the Senate acts as a barrier against possible foolishness in the House of Representatives. Publius speaks to this directly, asserting that the Senate:
Must be in all cases a salutary check on the government. It doubles the security to the people, by requiring the concurrence of two distinct bodies in schemes of usurpation or perfidy, where the ambition or corruption of one would otherwise be sufficient. This is a precaution founded on such clear principles, and now so well understood in the United States, that it would be more than superfluous to enlarge on it. I will barely remark, that as the improbability of sinister combinations will be in proportion to the dissimilarity in the genius of the two bodies, it must be politic to distinguish them from each other by every circumstance which will consist with a due harmony in all proper measures, and with the genuine principles of republican government.
He goes on to speak even more directly of the problem of passion in the House in the next paragraph, stating:
The necessity of a senate is not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions. Examples on this subject might be cited without number; and from proceedings within the United States, as well as from the history of other nations. But a position that will not be contradicted, need not be proved. All that need be remarked is, that a body which is to correct this infirmity ought itself to be free from it, and consequently ought to be less numerous. It ought, moreover, to possess great firmness, and consequently ought to hold its authority by a tenure of considerable duration.
The relatively long term served by Senators, then, is a line of defense, as it were. Whereas the House of Representatives stands for reelection en masse every two years, only one third of the Senate is so situated. It takes a full six years for an entire election cycle to play out in the upper house. This has the effect of mitigating the passions of the people in representational terms. It is conceivable that an issue could first play a major role in a House election, resulting in a radically realigned House of Representatives. That same issue would then, second, largely determine the activities of the realigned House. Given the lengthy Senate term, these eventualities are far less likely on the Senate side. Given the staggered nature of Senate elections, it is almost inconceivable that a single issue could ever result in a party realignment in that chamber. An issue would have to remain in the public consciousness for six years.
As Publius indicates, the great security to the people consists in a required agreement between the House and Senate. Different legislative bodies, founded on different principles with different motivating factors, will in the end have to agree in order to accomplish their appointed task.
Publius was well aware that the act of passing legislation would be hindered by such an institutional arrangement.
This was most certainly the goal. The American legislature, and the American government as a whole, was designed to work very inefficiently.
Congress in Action
All of this is necessary to understand Congress, but legislation is where the rubber meets the road. The role of Congress, after all, is to legislate.
This short video does an outstanding job of presenting the legislative process in a very succinct way:
And this video, much more famous, presents things in even briefer terms:
Lee Hamilton Puts A Positive Spin on Congress
Former Representative Lee Hamilton (D-Indiana) took up a good number of the foregoing issues in his 2000 essay “What I Wish Political Scientists Would Teach About Congress.” You can read this short, lucid essay here:
Hamilton does a nice job of pointing out a number of the positive things that people tend to neglect in their considerations of Congress, but I would like to point your attention to just one: the tension that results from the design of Congress on the one hand and from the desires of those who serve in it on the other.
Congress is, according to Hamilton, the most essential link between the American people and their government. It is charged with representing some 300 million people. This is a monumental task.
Following Publius, Hamilton understands that Congress was not designed to move quickly or efficiently. His third item addresses this point specifically. This is complicated in practice by the complex nature of the legislative process, which is the subject of his fourth point.
By the time he gets to his ninth point, however, you can see where he is not wholly comfortable with the tedious, complicated process defined by the Constitution. People come to Congress with a vision of getting things done. They all come to the Congress with their own ideas of what is best, and how best to proceed. The minute people are sworn in, however, they find that there is not much agreement, and what little agreement there may be is stifled by institutional mechanisms which were designed for no other purpose but to complicate matters.
For people with a vision, this is beyond frustrating. The Constitution was designed, though, to protect the American people from people with a vision. Even here, then, when Hamilton is leveling his most serious complaints, he might well be illustrating the point that Congress works pretty well given its design.
- Legislative Process