Unit 3

Congress, The Presidency, The Bureaucracy, The Judiciary

Difference between Congress and Parliament Becoming a member

Parliament: persuade political party to put name on ballot Someone willing to support national policy

and party Election is choice between parties, not

people Congress: run in a primary election

Parliament members support national policies, Congress people support local policies

Role of office Parliament – whether to support the

government or not Congress – develop and vote for proposed

laws; independent from executive branch

The Evolution of Congress Fear of “tyrant” Bicameral congress: protect the

interests of the large/small states; protect the interest of federal/state governments

Powers are limited to those expressed in the Constitution (really?) Taxes * rule over DC Elastic Clause Regulate commerce Naturalization rule Coin money *borrow $ Declare war * provide for militia Coin money * weights/measure Post office * patents Establish courts * maritime laws

The Evolution of Congress, cont. Checks and Balances

Institutional Powers Senate ratifies treaties with 2/3

vote Senate approves appointments

with majority vote House votes for impeachment,

Senate tries the impeachment case

If no electoral college majority, House elects the President, Senate the VP

Proposal of constitutional amendments with 2/3 vote in each house

Can seat, unseat, punish members of both houses

Equal power? Importance of Senate

The Evolution of Congress, cont. Implied Powers

Based on elastic clause Denied Powers

Passing ex post facto laws Passing bills of attainder Suspending habeas corpus except during

rebellion/invasion

The Evolution of Congress, cont. Struggles within

Congress (distribution of power within Congress)

The period of the founding Originally directed by the

executive branch, soon developed own leadership

Originally, the House was the preeminent institution

Evolution of Congress, cont. Decline of the House

Influence of Andrew Jackson and his vetoes

Division of the issue of slavery

Importance of the Senate Importance of issues that

fell under their jurisdiction The rise of party control

in the House Increased power and

prestige of the Speaker of the House (Reed)

Evolution of Congress, cont.

Decentralization of the House Rise of party caucus Rules Committee

What legislation got presented

Rise of the chairpeople of standing committees Setting committee agenda Determining which bills to

report out Influence on content of bills Reward of seniority

Evolution of Congress, cont.

Recent changes in the House Increased power for all Representatives Increased number of all subcommittees; including

power of chairpeople Increase in the amount of staff

The Evolution of Congress, cont. “Democratization” of the

Senate Senate is more decentralized

Fewer members No ‘speaker’ Lack of rules of committee

17th Amendment, 1913 End millionaire club Senate passed amendment

under the threat of states calling a new constitutional convention

Rule 22 regarding filibusters Cloture; 1917 3/5 vote could limit filbusters

Who is in Congress? Sex and Race

Demographical changes represented in Congress

Can anyone represent anyone else? Typically older, white male comes

from law/business background Incumbency

Growing percentage of re-elected members

Biggest factor in congressional elections

Congress being seen as more of a career

Debate on term limitations Party

Getting Elected to Congress

Determining Fair Representation Malapportionment Gerrymandering Determining Representation

Total size of the House Allocating seats among the states Determining size of congressional districts within states Determining shape of those districts

Winning the Primary Increased advantage for incumbents How re-election influences term

Organization of Congress: Parties and Interests

Party structure of the House 435 members 2 year term limits No limit on terms At least 25 years old, citizen

for 7 years, resident of state Speaker of the House Floor leader (majority leader,

minority leader) Steering and policy

committee (committee assignments)

Organization of Congress: Parties and Interests Party organization of the Senate

Senate has 100 members 6 year term limit

Staggered so 1/3 elected every 2 years At least 30, citizen for 9 years, resident of the state Vice President is President of Senate

Only votes in a tie Ceremonial position

President pro tempore In line for presidency after the Speaker

Real power is in the majority leader, minority leader: whips Majority leader recognized first for all debates True leader of majority party in Senate

Policy committee – sets Senate agenda

Organization of Congress: Parties and Interests Party Voting

Broad policy agreements Party provides information on various bills Work towards long-term advantage in terms of

influence, prestige, etc. Caucuses

Democratic Study Group (DSG) Conservative Democratic Forum State Delegations Etc.

Organization of Congress: Committees Real work of Congress is done in the committee and subcommittees

Importance of getting on right committee – one in which constituents are best served (agricultural, technology, military, etc.)

Represent most of the power of congress Decisions on committees determine legislation Roughly two dozen committees and over 100 subcommittees

Standing committees Permanent

Select committees Appointed for a limited purpose

Joint committees Both rep. and sen. serve

Number of seats varies by committee Seniority as role in selection process Chairs are of the majority party

Secret ballot; expertise; generally seniority system honored

Types of Committees

House Rules Committee most

powerful Ways and Means deal with

tax bills Appropriations deal with

spending bills Budget Armed Services

Senate Finance deals with tax

bills Appropriations deals with

spending bills Budget Foreign relations – to

reflect the Senate role in foreign affairs

Organization of Congress: Staffs and Specialized Offices Vast, recent increase in staff size Tasks of staff members

Servicing requests from constituents Local offices as well as Washington offices

Legal paperwork for congress members Advocacy role for staff negotiators

Staff agencies Congressional Research Service (CRS) General Accounting Office (GAO) Office of Technology Assessment (OTA) Congressional Budget Office (CBO)

How a Bill Becomes a Law Less than 10% of bills actually

pass Introducing a Bill

Any member of Congress many introduce May be public or private Has the lifetime of one Congress Only House may introduce bills for

raising revenue Resolutions

Simple – establishes rules of operation

Concurrent – housekeeping/procedural matters

Joint – essentially the same as a law

How a Bill becomes a Law, cont. Study by Committees

Most bills die in committee Live bills are then sent to

subcommittees Many bills fall into multiple referral –

many subcommittees look at their overall effect rather than allowing a slow, painful death

Committees may “mark-up” bills Revisions and additions

Committee may pigeonhole a bill – which is the most common fate

Committees “reports out” the bill Can bypass the committee

stall/procedures through a discharge petition

Floor vote to vote on bill

How a Bill becomes a Law, cont. Study by committees, cont.

To come back to House or Senate, bill is placed on the calendar Closed Rule: strict time limit on

debate Open Rule: permits

amendments from the floor Restrictive Rule: some

amendments but not others

How a Bill Becomes a Law, cont. Study by committees, cont.

Types of Calendars: House Union calendar (appropriations) House calendar (nonmoney bills of major importance) Private calendar (private bills - affect 1 person) Consent calendar (noncontroversial bills) Discharge calendar (discharge petitions)

Types of Calendars: Senate Executive calendar (Presidential nominations, proposed

treaties, etc.) Calendar of business (all legislation)

How a Bill becomes a Law, cont. Study by committees, cont.

House ways of bypassing the Rules Committee Member can move that the rules be suspended

2/3 vote Discharge petition

process to force a bill out of committee successful petition requires the signatures of 218

members, which is a majority of the House. “Calendar Wednesday” procedure

Challenge speaker’s control of the agenda

How a Bill becomes a Law, cont. Floor Debate – the

House Floor Debate – the

Senate Additions of

amendments may be made from the floor (but not on appropriations bills)

Filibuster

How a Bill becomes a Law, cont. Methods of Voting

Voting often reflects amendment vote rather than bill vote

Teller vote or roll call Reconciliation of the

differences in a bill between the House and the Senate

Bargaining for votes

How Members of Congress Vote Representational View

Clear constituent view Organizational View

Cues from colleagues Attitudinal View

Personal ideology

Founding Fathers views on Congress’s ability to pass bills

The intent of the Founders was the create a cautious and a deliberate process for legislating

Role of the President Sign the bill Veto Ignore

If congress is in session, in 10 days an unsigned bill will become a law

However, if during those 10 days Congress adjourns, bill will be automatically vetoed

Ethics and Congress Attempts to influence/bribe

Presidential influence through snubbing or helping campaign

How should members of Congress be judged? Congress has the right to judge

and discipline its own members Executive branch investigations

are handled by independent special prosecutor

Campaign financing

Ethics and Congress, cont. Incumbency advantage in elections

Reelection rate in House is over 90%, Senate over 80% Franking privilege Staff Patronage Name recongintion Money

Attempts at Reform Financial disclosure statements Honorarias Can no longer keep surplus campaign funds for personal

use after retirement Restriction on gifts “free travel” restrictions

The Old and the New Congress First Stage

WWI – 1960s House dominated by

committee chairman Second Stage

1970s Caucus would select

committee chairmen Increased staffs

Third Stage Effort in House to

strengthen and centralize party leadership

Presidents and Prime Ministers Influence of Prime Minister

Representative of political party in power Has majority representation in parliament Cabinet members are chosen from parliament

Influence of President Presidents are often political outsiders Cabinet members are from outside Congress Presidents don’t necessarily represent majority party Can be at a crossroads even with own party

Divided Government Policy problems: budget, war, appointments, ethics, etc.

Evolution of the Presidency Concerns of the

Founders Could overwhelm state

governments via use of the militia

Could become “tool” of the Senate

How do we elect/choose Electoral College

State select electors however they want

If no victor-election would go to the House

Compromise of the factions

Evolution of the Presidency, cont. President’s Term of Office

Traditional 2 term limit until Roosevelt 22nd Amendment, 1951 How do we transition between presidents?

Jefferson and Jackson increased role and power of President Acts and vetoes

Reemergence of Congress After Jackson left office, congress re-exerted

itself Lincoln the exception

Continuing pattern until FDR and the New Deal Teddy and Wilson the exception

Current changing view of President as initiator of policy

The Powers of the President Commander in Chief

Head of the armed forces Commission officers of the

armed forces Chief Jurist

Grant reprieves and pardons for federal offenses

Appoints federal judges Chief Legislator

Convene congress in special sessions

Proposes legislation Vetoes legislation

The Powers of the President, cont. Chief Diplomat

Appoints ambassadors Sets overall foreign policy Negotiates treaties and executive agreements Grants diplomatic recognition to foreign governments

Chief Executive Enforces laws (loosely interpreted), treaties, court

decisions Appoints officials to office Issues executive orders – which have the force of laws

Chief of State Ceremonial head of nation Most nations separate chief of state and chief executive

The Powers of the President, cont. Non-Constitutional

Roles Head of political party Chief Economist

Greatest source of presidential power is in public opinion From WWII to today,

Presidential power has grown due to public expectations Cold War, Terrorism

The Office of the President Qualifications

Natural-born citizen 35 years of age Resident of the US for at least

14 years Growth of

staff/responsibility First secretary in 1857 White House staff, ~ 500 Staff can isolate president

Appointments to cabinet, courts, agencies, etc.

The Office of the President, cont. Rule of Propinquity

People who are in the room when a decision is made have the power

Fierce competition to be closest to the Oval Office

White House Office Circular or pyramid

organization Competition among staff

for president’s ‘ear’

Executive Office of the President Office of Management and Budget (OMB)

Assemble and analyze figures for the national budget Studies organization and operations of the executive branch Reviews federal programs

National Security Council (NSC) Coordinates foreign/military policy Growing in importance

Council of Economic Advisers (CEA) Three person advisory group

Office of Personal Management (OPM) Office of the US Trade Representative Central Intelligence Agency (CIA)

The Cabinet Not a constitutional body Heads of 14 major

executive departments Small number of

presidential appointees in each department

Self-preservation interests of cabinet members

May be more loyal to Congress (funding) than President (appointment)

Who Gets Appointed?

“in – and outers” People who have

political followers Expertise

Presidential Character: Role of Personality Eisenhower disguised his efficiency and

thoroughness to evade questions Kennedy projected boldness Johnson was ineffective at speaking to the public,

strong in one on one deal making Nixon’s personality also made it hard for him to

develop popular support Ford enjoyed meeting with people – very genial Carter boasted about how “un-Washington” he was Reagan was the “Great Communicator” H.W. Bush made many contacts with other leaders

but was not able to articulate with the public

Presidential Character: Role of Personality Clinton seemed to slide

through various situations because of his ability to connect with the public

Bush seemed single-minded and full of resolve to the public

The Power to Persuade The Three Audiences

Washington DC Fellow politicians and

leaders Party Activists

Activists in and outside of Washington

The Public Fewer and fewer

impromptu remarks More dependent on

prepared addresses

Popularity and Influence

Congress responds to president’s popularity even though it doesn’t affect their ‘seat’

Congress and the ‘coattails theory’

Can be reflected in how much presidential policies are passed by Congress

Decline in Popularity

Most presidents see a loss of approval

The Power to Say NO Veto

Pocket Veto Executive Privilege

Constitution is silent on matter President claims right

Separation of Powers: one branch can’t look into affairs of other

Statecraft and prudent administration First real challenge came in 1973 with

Watergate Impoundment of Funds

Refusal to spend money appropriated by Congress

Congress responded with Budget Reform Act, 1974 Money must be spent

The President’s Program President draws from many sources

Aides and campaign advisors Federal bureaus and agencies Outside, academic, specialists Interest groups

Two philosophies Have policy on everything Concentrate on three or four major

themes Constraints

Time limits Unexpected crisis Government can really only be changed

marginally

The President’s Program, cont. Measuring Success

Proportion of the proposals approved by Congress

Proportion of votes taken in Congress on which the President’s position prevails

Attempts to Reorganize Presidents try to restructure organization Personal White House staff can be reorganized at

any time Larger agencies need Congressional approval

Presidential Transition Only 15 Presidents since

Washington have not been re-elected to a second term 9 have not finished term (death,

resignation) Vice President

8 VP have succeeded presidents Only 5 VP have been elected

President (unless they assumed office after death)

Can be an empty position Only 2 constitutional duties:

Become acting President Serve as President of the Senate

Presidential Transition, cont. Problems of Succession

What if president is seriously ill but doesn’t die?

Who becomes VP when he steps up to Presidency? Succession Act, 1886 25th Amendment, 1967

Impeachment Impeachment is an

indictment voted by the House

To be removed, must be found guilty by 2/3s vote in Senate

How Powerful is the President? Dependent on

circumstances Move at the first

opportunity Staffing issues are vital

Way to look at who is in the government

Electoral College Compromise of Electing President

One electoral vote for each member of Congress Min. 3

District of Columbia has three electoral votes Total, 538 States choose electors

Only Nebraska and Maine have potential to give votes to more than one candidate

Other states give all electoral votes to winner of election – can be plurality or majority

Electoral Votes Electors meet in state capitals in December to cast ballots Candidates need majority of electoral votes to become

President If no candidate receives a majority, election goes to House

of Representatives where each state only has 1 vote

Electoral College, cont. Problems

May allow a minority President 1824, 1876, 1888, 2000

“Faithless” electors: no law to prevent electors from switching

Small states are proportionately overrepresented – even more so if election goes to House

Inhibits development of third parties Alternatives

Direct Election Won’t happen….why?

District System Win a congressional district, win that vote

Proportional System Get same percent of electoral votes as popular

votes

The Bureaucracy

Agencies Departments Commissions All within executive

branch

Distinctiveness of the American Bureaucracy Political authority over the

bureaucracy is shared among several institutions Congress and the President Divisions within the Congress

Most agencies share their functions with state and local government

Institutions and American way of life have contributed to growth of personal actions, thus the growth of bureaucracy to deal with them

Growth of the Bureaucracy Gradual, historic growth of agencies

First agency – Department of State Initially filled through the spoils system Debate over how people appointed,

taken out of offices Small start for organizations and

agencies Currently over 3 million employees in

bureaucracy Appointment of officials

Appointments as rewards Changing qualifications with quick

growth Civil service reforms

Growth of the Bureaucracy A Service Role

Agencies changed from regulation to service

Government economic regulation initiated in 1887

Congress increases regulatory commissions to regulate economy

Wars generally increased bureaucracy without cutting it after war

Change in Role Bureaucracy affected by New Deal and

WWII Government had active role in the

economy New actions by the Supreme Court

The Federal Bureaucracy Today Hidden Statistics

People who work indirectly for the government Federal contractors, consultants Higher level bureaucrats typically white males Lower level: women, minorities

skew demographics of bureaucracies toward minorities? Reality is in increased numbers and increased power

Paying subsidies to groups and organizations Transferring money from fed to state and local State now required to hire more employees for state based bureaucracies Devising and enforcing regulations for sectors of society and economy

Behavior of officials Manner in which they are recruited and rewarded Personal attributes Nature of jobs Constraints of outside forces (superiors, legislators, interest groups,

journalists)

Recruitment and Retention 2/3s by competitive service

administered by Office of Personnel Management, OPM

1/3 by expected service Exceptions

Presidential appointments “Schedule C” jobs – confidential or

policy-determining character Noncareer executive assignment

(NEA jobs) Pendleton Act of 1883 started

trend from patronage to merit

The Buddy System

“name-request” system “tailor – made” position

Firing a Bureaucrat Written notice at least

30 days in advance Statement of reasons Right to an attorney

Reply to charges Right to appeal any

adverse actions Right to hearing May appeal MSPB

decision to US Court of Appeals

Civil Service Reform Act of 1978 Allowed some

loosening of firing procedures for top-level bureaucrats SES

Agency’s Point of View

Most civil service employees are lifetime government service people

To change direction of agency, executives must woo the employees

Personal Attributes

High-ranking officials represent an elite segment of American society

Many believe this makes agencies out of touch with the people they are to serve

High-ranking officials seem to be more liberal than mainstream America

Attitudes also related to agency person works for

Do Bureaucrats Sabotage their Political Bosses? Hard to fire career

bureaucrats Bureaucrats may drag

heel, block action, etc Work well with supervisors

who work cooperatively and constructively

Culture, Career, and Constraints

Culture and Careers Constraints

Legal procedures Shared responsibilities

(between agencies) Slow movement Inconsistencies Constraints as response

to public demands

Agencies Allies Iron Triangle

Relationship among an agency, a committee and an interest group

Department would act in order to get political support and budget appropriations, committee members act in order to get votes

Client politics Agencies have allies in

Congress and the private sector

Bureaucratic Power

Discretionary authority Passing rules and

regulations Quasi-legislative power

Helping Congress draft legislation

Providing advice to White House

Settling disputes

Congressional Oversight Agencies can only exist with

Congressional approval No money can be spent without

being authorized by Congress Annual Appropriation of Money Appropriations Committee and

legislative committees Power over an agencies budget Continual power struggles

Trust Funds Annual authorization Congress tries to keep funding down Committee clearance

Congressional Oversight, cont. Legislative Veto

Desired by Congress, declared unconstitutional by the Supreme Court

Did require President to keep an executive decision before Congress for an extended length of time before enactment

Congressional Investigations Not a Constitutional power – but

Supreme Court has upheld validity

Bureaucratic “Pathologies” Problems

Red tape Complex rules and procedures

Conflict Agencies working at cross purposes

Duplication Two agencies seem to have same

tasks Imperialism

Agencies grow without regard to benefits of their programs or the cost of their programs

Waste Spending more than is necessary No incentive to be efficient/effective

The Judiciary

Development of the Federal Courts Jurisdiction

Exclusive: sole authority of federal courts Constitution, federal law, treaty Admiralty/maritime law Disputes between states US government is a party Citizens of different states Ambassadors/diplomats A state as a party

Concurrent: both federal and state courts Original: authority of a court to first try a

case Appellate: court that hears a subsequent

appeal

Development of the Federal Courts, cont. Traditional view that

judges would find and apply existing law Based on what the law

required Judicial activism argued that

judges make the laws Founders were able to

justify power of judicial review – courts would have a neutral role in government

Development of the Federal Courts, cont.

Hamilton argued that courts could decide whether a law is contrary to the constitution

1787- 1865: legitimacy of federal government and slavery

1865 – 1937: relationship between government and the economy

1938 – present: personal liberty and social equality

Development of the Federal Courts, cont. National Supremacy and Slavery

Under John Marshall, national law was deemed to be dominant law is all instances

Supreme Court had right to determine what the Constitution meant

Marbury v. Madison, 1803 McCulloch v. Maryland, 1819

Supreme Court could declare an act of Congress unconstitutional

Federal government flows from people, laws necessary to attain constitutional ends are permissible

Federal law is supreme Dred Scott

Roger Taney wrote that slaves are not citizens and so federal laws affecting slavery were unconstitutional

Development of the Federal Courts, cont. Government and the

Economy Favor of private property Focus of the 14th amendment

shifted from black citizenship to protection of corporations (big business) Blockage of anti-trust,

regulatory legislations Ruled against labor

unions/strikes

Development of the Federal Courts, cont. Government and

Political Liberty Change in focus and

priorities of the justices Earl Warren redefined

relationship of citizens to government and protection from government infringement

The Structure of the Federal Courts Only court established by the Constitution is

the Supreme Court – all other federal courts have been established by Congress Constitutional court – exercising the judicial

powers from Article III District courts (94) Courts of appeal (12)

Legislative court – specialized purpose, fixed terms of office

The Structure of the Federal Courts Types of law

Statutory – deals with written statues (laws)

Common Based upon a system of written law Based upon precedents - state decisis

Criminal Violations of criminal code Violations against society

Civil Disputes between two parties

Breach on contract, slander, malpractice Writ of mandamus – court order for one

party to perform a certain act Injunction – prohibits a party to act Class action lawsuit

The Structure of the Federal Courts Selecting Judges

Constitutional judges have life terms – selected by President, approved by Senate (usually represent President’s party)

Party, etc. does not always predict ruling – base on facts of case, arguments, etc.

Primarily male (Sandra Day O’ Conner 1st female)

Senatorial Courtesy Senate usually approves if Senators

from state of nominee approve Not existent for Supreme Court

Litmus Test – judges as representative of President’s views?

The Structure of the Federal Courts The Jurisdiction of the Federal Courts

Dual Court System One state, one federal There are different cases for each Some cases fall under both jurisdictions

and can be tried in either or both Appellate Jurisdiction

Lower federal courts Highest state courts

Writ of Certiorari Way of petitioning Supreme Court to hear

appeal If four justices agree, cert is issued and

the case is scheduled – rule of four Look for constitutional issue

The Structure of the Federal Courts Going to Court

Fee Shifting Sovereign Immunity Standing – being entitled

to have a case Controversy Show harm

The Structure of the Federal Courts The Supreme Court in Action

The “Supreme Court is a constitutional convention in continuous session” – Woodrow Wilson

Lawyers submit briefs Arguments in court ~ 30 minutes; questions from

justices Government is represented by the solicitor general

Voting patterns of the Court Fairly consistent positions Voting ‘blocs’ Complex factors of case Interpretation of laws

The Structure of the Federal Courts The Supreme Court Decision

Making Simple majority determines case If a tie, previous court decision

stands Majority opinion - expresses

view of majority Dissenting – expresses opinion

of minority Concurring – agrees with

majority but for different reasons Opinions are how the Supreme

Court communicates with public

The Structure of the Federal Courts The Power of the Federal Courts

The power to make policy Via interpretation of Constitution,

enforcement of laws By interpreting law are actually making

law Declaration of laws being Constitutional

or not Stare decisis – let the decision stand Courts take on matters once left to the

legislature More than 1000 state laws declared

unconstitutional More than 130 federal laws as

unconstitutional

The Structure of the Federal Courts Views of Judicial Activism

It is the courts responsibility to act when other branches haven't

Decisions have huge impact/on society The court should be restricted to constitutional outline

of authority – judicial restraint The justices are lawyers, not managers Special treatment for one group affects all groups

Legislation and the Courts When laws are vague, judges have greater power for

interpretation Some laws induce litigation Judges determine own role

Checks on Judicial Power Congress and the Courts

Check through appointments, confirmed by the Senate

Impeachment of judges Alter number of judges Can alter decision by amending

the Constitution Repass a law Decide what the entire

jurisdiction of the lower courts and the appellate jurisdiction of the Supreme Court shall be

Public Opinion and the Courts Aware of elite viewpoints Changing public/political

moods can affect kinds of remedies that judges think appropriate

Changes reflect appointees In the short run, justices aren’t

swayed by public as they were appointed by previous Presidents to life terms

In the long run, they reflect the views of the public who voted for the President who appointed them