Congress Part 2
January, 2017
Powers of Congress; How a Bill Becomes Law
Congressional Power
The Framers intended for Congress to be the alpha-branch. Thus,
Congress has lots of power.
A beautiful (albeit unrelated) picture of nature’s power.
Source of Powers
The Constitution gives powers to Congress in 3 ways:
Express (or “enumerated”)
▪
Clearly stated in the Constitution (see Art. I, sec. 8).
Implied (the Necessary & Proper, or “elastic,” clause)
▪
“To make all Laws which shall be necessary and proper for carrying into
Execution the foregoing Powers, and all other Powers vested by this
Constitution in the Government of the United States, or in any
Department or Officer thereof.”
Inherent
▪
Powers possessed by all governments (defend borders, enter into
contracts, etc.).
Express powers (with initial focus on
money): Taxing
• It’s the largest source of federal revenue (like around $3.5 trillion in 2016).
• Can be direct (ex: income tax) v. indirect taxes (ex: taxes on alcohol).
• Not an unlimited power. For instance:
• Can’t tax churches, for instance (would violate 1st Amendment) or
impose a poll tax.
• Can’t tax exports (‘cuz the Constitution says so).
• This power can be used to protect U.S. businesses (a “protective tariff”).
• Ex: We imposed tariffs on Chinese solar panels (they were accused of
“dumping”).
• All revenue bills (i.e., taxing and, by custom, spending, bills) start in the
House.
Express powers: Borrowing
▪ US has the power to “borrow Money on the credit of the
United States.”
▪ No limit. We’re at $19.9 trillion.
▪ The “deficit” (i.e., the shortfall in any one year) was $587b in
2016 (from a high of $1.4 deficit in 2009).
▪ We’ve raised the “debt limit” 74 times since 1962 (under both
Rs and Ds). (Our national debt = the cumulative deficits.)
5
Lies, damn lies, and statistics:
the shortfall seen 2 ways
6
Shortfall (cont.)
7
Express powers: bankruptcy, currency
▪ Bankruptcy
o This refers to the process in which a debtor’s obligations are
either restructured or wiped out.
▪ Currency
o Needed b/c states were issuing worthless money and forcing
merchants to accept it.
o First nat’l bank chartered in 1791, but we didn’t have “legal
tender” until 1863. In interim, many state banks issued own
currency.
Express powers: Commerce
o Congress has the power “To regulate Commerce with foreign
Nations, and among the several States, and with the Indian Tribes.”
o Needed b/c states were bickering and imposing tariffs
o Remember Gibbons v. Ogden (the “steamboat case”)? This helped
flesh out extent of Commerce Clause power.
•
“This power, like all others vested in Congress, is complete in itself, may
be exercised to its utmost extent, and acknowledges no limitations other
than are prescribed in the Constitution.”
o The bottom line: “interstate commerce” is a VERY broad term.
Quick review of some key commerce
clause cases after Gibbons
The Supremes have read the Commerce
Clause more or less narrowly, depending
on the times and the issue.
▪ In late 1800s and early 1900s (the
“Lochner Era”) the Court read the CC
narrowly:
▪
Lochner v. New York (1905) (can’t
use CC to interfere with right to
contract — here, for stupidly long
days)
▪
Hammer v. Dagenhart (1917) (same
principle as Lochner, here in the
context of child labor)
10
Then came a switch to a broad
reading of the CC
▪ West Coast Hotel v. Parrish (1936) (the “switch
in time that saved 9”; CC can be used to regulate
minimum wage)
▪ Wickard v. Filburn (1942) (the wheat case; CC
can be used to regulate private activity that, in
the aggregate, affects interstate markets)
▪ Heart of Atlanta Motel v. U.S. (1964 challenge to
Civil Rights Act of 1964; use of CC upheld)
▪ Gonzales v. Raich (2005) (Congress can regulate
local marijuana market, using Wickard analysis)
11
Some recent restrictions on
Commerce Clause
U.S. v. Lopez (1995) (the guns in public schools case; law struck
down b/c activity was not economic in nature)
U.S. v. Morrison (2000) (the Violence Against Women Act case;
parts held to be unconstitutional exercise of Commerce Clause
power b/c the regulated conduct had only an indirect effect on
interstate commerce)
Obamacare (2012) (Congress cannot use CC to create a market —
here, health insurance — and then regulate it)
12
Powers: Other Express Powers (nonmoney)
▪ Foreign relations
o Congress and President share
power, but President primarily
responsible
o States have no role; need to leave
negotiations on behalf of US to
fed’l gov’t (don’t want individual
states getting US in a war)
What does the Owner’s Manual say about
war?
A little something for everyone:
• Congress has power “To declare War, grant Letters of Marque
and Reprisal, and make Rules concerning Captures on Land and
Water….”
• But “The President shall be Commander in Chief of the Army
and Navy of the United States, and of the Militia of the several
States, when called into the actual Service of the United States;
….”
War Powers Resolution of 1973
• A response to Viet Nam War.
• President is to consult with Congress before sending troops “in
every possible instance.”
• Troops sent but no declaration of war? “Report” w/in 48 hours
to Speaker and Senate Majority Leader on why he authorized the
force, the Constitutional authority for the action, and the
estimated scope and duration.
• Terminate conflict w/n 60 days if Congress hasn’t authorized it (+
possible additional 30 days).
• Congress also may compel the President to withdraw troops by a
concurrent resolution.
War Powers Resolution – Problems
• Probably unconstitutional when WPR overrides a
presidential decision. That would be a “legislative veto.”
– INS v. Chadha. USSC struck down such “legislative
vetoes” (in Chadha, in the context of one chamber
voting to override a decision by a judge not to deport an
alien). Why a problem? B/c the Constitution requires
both houses to vote and then present a bill to President.
– Congress is to act; having war deemed unconstitutional
by inaction perhaps not contemplated in Constitution.
WPR problems (cont.)
• But there’s a huge practical problem as well: Presidents never
“report” and thus don’t trigger the 90-day clock.
– Instead, they “take note of” the WPR or file “consistent
with” but do not report pursuant to the WPR. War Powers
Commission Report, p. 26.
• Congress as a whole doesn’t really seem to care. Some
individual congressmen have sued, but the courts always
dismiss the cases.
• Is it a bad thing to have the highest officer in the land ignoring
the law?
War Powers Resolution (cont.)
▪ The Supremes are unwilling to force any resolution under the
WPR, due to the “political question doctrine.”
▪ Under that doctrine, if the USSC thinks that a matter is better
resolved through the political process, it may decline to hear
the case.
▪ Conducting war is a classic arena where the Supremes are
highly deferential to the president.
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Express powers: Copyrights/patents
•
•
•
Copyrights good for life of the author + 70 years
Patents good for 20 years.
Some oddities:
•
Comb-overs: http://www.bpmlegal.com/wbald.html
A combover gone bad:
Another odd patent
Apparatus for facilitating the birth of a child by centrifugal
force
US 3216423 A
20
More express powers:
Eminent domain
o
Implied by 5th Amendment:
o
“…nor shall private property be taken for public use, without just
compensation.” This suggests the gov’t has a right to take property, as
long as the property owner receives a fair price.
o
Kelo v. City of New London (2005) expanded the concept dramatically.
Ms. Kelo’s little pink house:
The property today:
“The only creatures making regular use of them in
the intervening years have been a colony of feral cats.”
21
http://tinyurl.com/nuf3grc
Express: Congress gets to set the
rules of its proceedings.
So when is a recess not a recess? See NLRB v. Canning (2014)
▪ Obama nominated people to big-deal jobs in the gov’t. The
Republicans blocked lots of them.
▪ The President may make “recess appointments” —
appointments made to fill vacancies “that occur” during a recess.
▪ The Senate, though in recess, unanimously agreed to hold “pro
forma” sessions during Christmas break, meeting every 3 days.
▪ Obama says “C’mon! You guys aren’t doing anything” (and he
was right about that).
▪ USSC: Congress gets to say when it’s in session.
22
Implied Powers: The Necessary & Proper Clause
Remember McCulloch v. Maryland?
You know, the national bank case?
Maryland getting all “nyeh, we
don’t like the big bad bank coming
in our states”?
Them saying “show me where
‘bank’ is in the Constitution”?
It’s a BIG DEAL case, b/c it
opened door to a very aggressive
application of the N&P clause.
Maybe this will help:
Implied powers: McCulloch (cont.)
▪ After McCulloch, “necessary & proper” was interpreted as
“appropriate” (for all intents and purposes).
▪ But note: Congress STILL MUST HAVE SOME
ENUMERATED POWER before the N&P clause has any
relevance.
Forget this and
I’ll bring out
Sr. Mary Elephant
Implied powers: Spending
▪ “Appropriating” money (which basically means approving the spending of
money that has been authorized for a certain purpose) is not an
expressed power.
▪ The two things needed: Authorization and then appropriation.
▪ Committees of jx authorize; in other words, they say a program
(or agency) is okay.
▪ The Appropriations Committee appropriates (subject to approval
of full Congress); in other words, this is a legislative grant to pay
for the program (or agency).
▪ But clearly Congress must appropriate money in order to do things like
pay for the military. So it’s seen as an implied power.
Powers: The Nonlegislative Powers
Some familiar ground…
▪ Amending the Constitution
o (2/3 vote of both chambers must
propose + ¾ of the States must ratify)
▪ Impeachment
o (House impeaches, Senate tries)
▪ Electoral duties
o (House breaks ties in Electoral
College w/r/t presidential race; Senate
breaks ties for VP)
Powers: Nonlegislative (cont.)
…and some ground maybe not so
familiar.
▪ Appointments. Senate (NOT
the House) must confirm.
o How frequently do nominees
get rejected? It happens (like
29 out of 151 USSC
nominees). A few examples:
•
Robert Bork
•
Doug Ginsberg
Harriett Miers
•
o Don’t forget Senatorial
courtesy.
Powers: Nonlegislative (cont.)
▪ Treaties (Senate must provide “advice and consent” before a
treaty is ratified)
▪ Oversight (both chambers)
o Committees often hold hearings about problems, agency actions,
etc. in addition to the legislative hearings we’ll talk about.
o “Nothing focuses the attention like an upcoming oversight
hearing.”
Jerry Hawke, Comptroller of the Currency
o See recent (and ongoing) Obamacare hearings.
Powers: Nonlegislative (cont.)
▪ Friendly questions: http://www.youtube.com/watch?
v=hysEhxMS_G4 (end at 1:45-ish)
▪ Less friendly questions: http://www.youtube.com/watch?
v=n85nrzoxCX0 (start at 3:26)
▪ A different kind of oversight hearing: http://
www.youtube.com/watch?v=hWcQEO1OG4Q
Summary of some differences in House
and Senate powers
Only the House may:
Only the Senate may:
▪ Impeach
▪ Try impeached officials
▪ Break electoral college ties
▪ Break electoral college ties
for President
▪ Originate revenue bills (and,
by custom, spending bills)
for Vice President
▪ Ratify (or reject) treaties
▪ Confirm (or reject)
presidential nominees
Limits on Congressional Powers
▪ Don’t forget the structural limitations.
▪ Congress has enumerated powers; the rest are reserved to
the States (see 10th Amendment).
▪ And the 9th Amendment makes clear that the first 8 aren’t
exhaustive. Thus, the liberty and due process protections of
the 5th and 14th Amendments have been construed to limit
state and federal gov’ts.
▪ And don’t forget checks and balances (veto, judicial
decisions, etc.).
Limits on Congress (cont.)
▪ In addition, there are specific limits spelled out in the
Constitution. See Article I, Sec. 9. Congress may not, for
instance,
o Pass a Bill of Attainder or ex post facto law;
o Suspend habeas corpus (except during national emergencies);
o Impose a “direct tax” unless in proportion to the census; or
o Grant a title of nobility.
32
Time for a segue
Okay, a segway of a different sort.
And a Mr. T of a different sort, too.
33
How Do MCs Represent the People?
▪ There are 3 basic ways: as a delegate, as a trustee, or as a
partisan.
▪ MCs will be all three at various times.
Delegate:
o The MC is a representative of the people and votes the way the
people want him to vote.
o MC strays? Vote him/her out.
o This sometimes goes by the name of “agency” representation; the
MC is the agent of the voter.
Representing (cont.)
Trustee:
▪ The people elected an MC they can trust. So let the MC use his/
her judgment.
▪ Voters don’t need to monitor as closely as they would if they take
an “MC as delegate” approach.
Partisan:
▪ An MC needs to make nice with the party leaders in order to get
what the MC needs.
▪ So lots of votes will be cast along party lines.
MCs are helped mightily by staffers
▪ Three basic kinds: Personal, committee, and congressional.
▪
Personal staff:
• Answer mail, phone calls; help with casework; send out newsletters;
in short, anything to advertise the MC and help him/her get
reelected.
• Also get involved in legislative matters.
➢ They become “legislative entrepreneurs,” looking for bills that
advance the MC’s career.
➢ Will do much of the negotiating and drafting of bills.
• And they help with oversight functions (prepping MCs, giving
questions, etc.).
▪ Top 10 things staffer hate to hear:
http://www.ala.org/offices/sites/ala.org.offices/files/content/ogr/PDFs/Top%20Ten%20Things
%20Elect.pdf
36
Personal staff
▪ Bradley Byrne’s Chief of Staff is this guy — Alex Shriver, a 28
year-old who, among other things, was Bradley’s campaign
chairman and chairman of the College Republican National
Committee.
37
Personal staff (cont.)
▪ Staff will be split between DC and district offices. For instance,
Sen. Shelby has 5 offices in AL + one in DC.
▪ There are roughly 24,000 congressional staffers (personal and
committee). Salaries are so-so. (More on salaries: http://
congressional-staff.insidegov.com)
Committee staff
▪ Each committee will have its own staff. Picture from a typical hearing:
Committee staffs (cont.)
▪ These are the experts in a given subject matter.
▪ They can have enormous influence:
o Often the point of first contact with Congress.
o Act as gatekeeper for MC/committee.
o Will have a big say in hearings – topics, witnesses, lines of
question, etc.
▪ Committee staffers typically are paid better (can be in the
$170 - 180k range) but there are fewer of them.
40
Congressional staff
These staffers work for a specific part of Congress and help
Congress in general.
▪ Congressional Research Service.
• Helps build arguments for and against bills
▪ Gov’t Accountability Office (formerly Gen’l Accounting Office).
• The Congressional watchdog; it monitors how tax dollars are spent.
▪ Congressional Budget Office.
• Advises on likely costs of proposed legislation
41
A little mid-stream review
http://jeopardylabs.com/play/time-for-a-review2)
42
Another segue…
…and another
cute picture:
And now, the star of the show:
How a bill becomes a law!
▪ http://www.youtube.com/watch?v=tyeJ55o3El0
There are lots of steps, which means lots of
opportunities there are to kill a bill. See, for instance,…
Where do bills* come from?
▪ Not the bill stork.
▪ Anyone can write a bill. May come, for instance, from —
▪ the White House;
▪ lobbyists;
▪ MCs or their staffs who are responding to constituents.
▪ But, once drafted, it takes an MC to introduce it.
*The word “bill” comes from “bulla,” which were seals used in the
Middle Ages to ensure confidentiality of important documents. A bulla:
How to introduce a bill
▪ Say, “Bill, I’d like you to meet a friend of mine.”
▪ Or, if you’re in the House, hand the bill to the clerk or place it
in “the hopper” (pictured below).
▪ In the Senate, bills are simply handed to the presiding officer.
The hopper:
Introduction of a bill (cont.)
▪ A bill can be introduced in either the House or Senate…
▪ …with one exception: Remember that the Constitution requires
that all revenue bills (i.e., those related to taxes and spending) start
in the House.
▪ Taxing was thought best done by the “people’s chamber.”
▪ Revenue bills start in the House “Ways & Means Committee,”
which has jx over taxes.
Public v. private bills
▪ Note distinction between public bills v. private bills
o Most are public (i.e., pertaining to the general public). Private bills (i.e.,
pertaining to a specific individual) are much less common today.
o Example of private bill: Diane Feinstein (D, CA) has used them to block
deportation of illegal immigrants.
49
Resolutions
In addition to bills, Congress can introduce “resolutions.”
o Simple: Expression of opinion, often to settle procedural matters.
Either H or S can pass. Not signed by President. No force of law.
•
Ex: Expressing condolences to family of a deceased MC; offering a “sense
of the House” (or Senate) on something.
o Concurrent: Very similar to simple resolutions except that both H
and S must pass. Still no force of law.
•
Ex: Budget resolutions; formation of a temporary joint committee; one
about the life of a bill: http://www.gpo.gov/fdsys/pkg/CDOC-110hdoc49/
pdf/CDOC-110hdoc49.pdf)
50
Resolutions (cont.)
o Joint: Expression of opinion that HAS the force of law. Both H and
S must pass and President must sign. Like a bill. More info: https://
www.congress.gov/bill/113th-congress/house-joint-resolution/44.
•
Bills used to amend statutes; JRs used for small appropriations, continuing
resolutions, declarations of war, etc. More info: http://thomas.loc.gov/
home/lawsmade.bysec/formsofaction.html
•
One exception: Constitutional amendments not signed by President.
51
Just for grins….
… let’s see what our elected officials are up to, using www.
congress.gov
52
Once a bill is introduced…
▪ … a bill gets a bill number (S. xxx for Senate; H.R. xxx for House).
o MCs will reserve symbolic #s for major bills (like S.1 or H.R. 1)
▪ It then gets referred to a standing committee.
o Bill goes to only 1 in the Senate; may go to more than 1 in the
House.
o Decision of where to refer is made by the Speaker of the
House and presiding officer of the Senate.
o Note that the Speaker has option of a sequential referral –
the whole committee process starts over after a bill is
reported out of the first committee. This is a great way for the
Speaker to kill a bill.
Committee types
There are several different types:
o Standing committees. They —
▪ are permanent;
▪ number 20 in House, 16 in Senate;
▪ have specific subject matter jurisdiction (like banking,
agriculture, etc.) and thus develop expertise in that subject;
▪ are the most common type of committee;
▪ have subcommittees; and
▪ are where almost all bills go for consideration before full H or
S consideration.
The size of standing committees and the ratios of Ds to Rs are
negotiated before the Congress starts.
Standing committees are where most
of the work of Congress is done.
Artist’s rendering of a standing committee.
55
Committee types (cont.)
Other types of committees:
o Conference
o Exist only to work out differences in House-passed and Senate-passed
versions of a bill.
o Members of H and S are on it.
o Once bill’s differences are resolved (or not), conference committee dissolves.
o Select
o “Temporary” committees for specific purpose, often to investigate something.
Often take on a life of their own (see, e.g., the Permanent Select Committee
on Intelligence).
o Most recent: Select Committee on the Events Surrounding the 2012 Terrorist
Attack in Benghazi. (See http://clerk.house.gov/committee_info/scsoal.pdf.)
o Joint
o Permanent.
o Members of H and S are on it.
o Example: Joint Committee on the Library.
o A conference committee is joint, but it is temporary and thus thought of as a
separate beast.
56
Committees (cont.)
▪
House members get on one “good” standing committee — Rules,
Appropriations, Ways and Means (remember that is where revenue bills
start), etc. — and one other. Senators get on several good ones (since
there are fewer Senators).
▪
Ratios generally reflect composition in that chamber — i.e., 60%
Republicans in House? Then roughly 60% Republicans on each
committee.
▪
One notable exception: The Rules Committee (which exists only in
the House) is usually 2:1 in favor of the majority (currently there are 8
Rs, 4 Ds).
▪
More info on how MCs get on committees: http://
faculty.washington.edu/jwilker/353/353Assignments/
SenateCommitteeAssignmentProcess.pdf.
57
Committees (cont.)
Again, most of the work of Congress is done in standing
committees (which, for purposes of this slide, includes subcommittees).
▪ They mark up bills (i.e., consider and revise bills);
▪ They hold hearings on bills (as well as oversight hearings);
▪ Senate committees conduct hearings on the President’s nominees
and proposed treaties.
▪ “Congress in session is Congress on public exhibition, whilst
Congress in its committee-rooms is Congress at work.” Woodrow
Wilson
Committee Chairs
▪ They are the key players. They decide –
o when the committee meets;
o which bills will be considered;
o whether (and when) to hold hearings and who to call as witnesses; and
o who will be on which subcommittees.
o And they manage floor debate once a bill is referred out favorably from
the committee.
▪ Chairs are awarded based primarily on some combination of
seniority and loyalty. Competence helps, too.
▪ A committee (maybe Committee on Committees, maybe Steering
Committee) makes recommendations that then are put to the full
party caucus of the majority party for a vote.
Flow of work through committee
Full Committee
Sub-Committee
(Usually)
Public Hearings
Committee
Report
Committee Vote
Mark-up Sessions
Bad news for most bills:
• Most bills don’t get enacted into law (see next slide). And
most (like around 90-95%) of the “deaths” occur in
committee.
• If a bill is killed through inaction, that’s called
“pigeonholing” a bill.
61
Not many bills make it.
62
Success rates (or lack thereof)
63
Committee work (cont.)
▪ To avoid pigeonholing, there is a process – called a “discharge
petition” – that allows the full House or Senate (as
appropriate) to dislodge a bill from a committee that has sat
on it for 30 days.
o This requires majority of H or S (218 Representatives or 51
Senators) to work.
o If successful, the bill then goes to the full House or Senate.
o Rarely successful (although was used with McCain-Feingold).
Committee options
▪ After a subcommittee finishes its work, the full committee
goes through much the same process (i.e., hearings, markup
sessions, etc.).
▪ The committee can —
▪ kill a bill by pigeonholing (i.e., doing nothing) or by voting
negatively;
▪ report it out favorably, either as submitted or with
amendments; or
▪ report it out unfavorably or without recommendation.
Committee work (cont.)
▪ In the House, if the bill survives this, the marked-up version
along with a committee report then gets reported to the
House Rules Committee.
▪ In the Senate, a bill that gets reported out of committee may
be scheduled for consideration by the full Senate. The Senate
Majority and Minority Leaders confer on the scheduling, but
any one Senator can bollix things up (see “Floor Action:
Senate” below).
▪ The chair of the committee that reported out a bill favorably
will manage the debate on the H or S floor.
Rules Committee: A Big Deal
The Rules Committee is extremely powerful. It
can (with the approval of the full House) issue –
o an “open rule” (i.e., one that allows amendments
from the floor);
o a “closed rule” (i.e., one that allows either no
amendments or only those amendments offered
by the sponsoring committee); or
o a “restrictive rule” (i.e., one that allows some
amendments from the floor).
It also sets time limits for debate.
See https://www.congress.gov//legislative-process/
house-floor
67
Bypassing Rules
▪ The House has 3 ways to bypass the Rules
Committee:
o Discharge petition (simple majority vote
enough)
o Motion to suspend the rules (requires 2/3
vote; expedites whole process); and
o “Calendar Wednesday”
•
•
Any committee can raise a bill that it reported
out.
All action must be completed on that bill
during the Wednesday on which the bill is
raised, so it’s not very practical.
Committee of the Whole
Most bills are considered by the “Committee of the Whole.”
This is basically the entire House just sitting in committee.
o Why do that? B/c you then only need 100 members to have a quorum (as
opposed to 218 for the full House); makes it easier to debate bills, but still
need majority of whole House to pass a bill.
o
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House action: Floor (cont.)
▪ Amendments:
o As noted above, the Rules Committee
decides if amendments will be allowed.
o If they are allowed they MUST BE
GERMANE. (This is NOT the case in the
Senate.)
o Stated another way, riders (which are nongermane amendments) are not permitted.
Not what I had in mind:
Filibustering in the House is…
…FORBIDDEN! There is NO FILIBUSTERING in the House.
o MCs can delay by, for instance, asking for quorum calls.
o Can also offer “killer” amendments (i.e., amendments designed to
make the bill unattractive. See amendment by Howard Smith (D,
VA) to Civil Rights Act of 1964 granting equal rights for women;
oops).
o But they CANNOT filibuster.
71
Debate in the House
o Controlled by the Speaker and the Rules Committee.
o Speeches usually limited to 5 minutes.
o A “special order” can be issued allowing someone to return at the
close of business to give a longer speech. Often what is shown on CSPAN.
o Debate rarely affects the outcome.
•
“Some of the most productive legislators rarely speak out. If they have
the votes, they don’t need a speech, they assume; if they need the speech,
they don’t have the votes.” Ritchie, Donald. The U.S. Congress: A Very
Short Introduction (p. 64).
Floor action
• This is how the House is supposed to work: http://
www.youtube.com/watch?v=uxekyGGdKXg
• This is how it can work: http://video.pbs.org/video/
2216437912/ (same video, different link: http://
www.youtube.com/watch?v=rFQ7T8iiNEo)
73
The Speech and Debate Clause
▪ Speech and Debate clause (Art. 1, Sec. 6):
[MCs] shall in all Cases, except Treason, Felony, and Breach of
the Peace, be privileged from Arrest during their attendance
at the Session of their Respective Houses, and in going to
and from the same; and for any Speech or Debate in either
House, they shall not be questioned in any other Place.
▪ First part not as broad as it may seem. Designed to avoid
playing games with an MC’s ability to make it to Congress.
Rarely invoked.
o Doesn’t protect against commission of crimes, only civil offenses.
o
Speech & Debate clause came in
handy…
…for Rep. Griswold (caning Rep. Lyon, below)
and Rep. 75Brooks (caning Sen. Sumner, above)
Speech and Debate Clause (cont.)
▪ Second clause protects against
liability for libel and slander arising
from official conduct.
o Includes conduct during a
committee.
o Also protects staff. See Gravel v.
U.S. (the Pentagon Papers case).
o But does not protect statements
made outside of official duties.
see Hutchinson v. Proxmire: Senator
can be sued for libel for
statements made in article.
• Hutchinson was researching
why rats, monkeys, and
humans clench their jaws.76
Time for a vote
▪ Bills require passage by a simple majority in both
chambers.
▪ There are 4 ways MCs vote:
▪ Voice vote (shouting out “yea” or “nay”)
(unrecorded)
▪ Division (a/k/a “Standing”) vote (unrecorded)
▪ Teller vote (recorded) (pass between 2
tellers and give one a tally card with a vote;
not an option in the Senate)
▪ Roll call (recorded) — electronic in the
House (most frequently used now); not
electronic in the Senate.
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House action: Floor (cont.)
Votes may be influenced by “logrolling” — Trading favors; “I’ll
support your bill if you will support mine.”
Your bill passed!
Now it is “engrossed” —
put in final form, with any
amendments that were
passed — and sent to the
other chamber for
consideration.
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Floor action: Senate
▪ Thomas overview: http://beta.congress.gov/legislative-process/senate-
floor
▪ The Senate needs a quorum of 51 Senators to act. This is usually just
assumed, but a Sen can call for a quorum vote, which can trigger a mad hunt for Senators, to wit:
▪ Rs were filibustering a campaign finance bill.
▪ Ds forced Rs to hold the floor or be deemed to have quit the filibuster.
▪ Rs asked for a series of quorum calls and then would leave the floor.
▪ Ds couldn’t muster a quorum on their own and so directed the sergeant at arms to go
arrest absent Senators and bring them to the Senate floor.
▪ Packwood was found hiding under his desk and was carried feet-first into the Senate.
(http://www.washingtonpost.com/wp-dyn/content/article/2009/06/30/
AR2009063001596.html)
Floor action: the Senate (cont.)
▪ If the Senate is going to act on a bill, it usually operates
pursuant to a “unanimous consent” (or “UC”) motion. Under
a UC, the rules of the Senate are suspended.
o Ex: Senate rules require that a bill be “read” 3 times before
passage. Usually dispensed with by UC. But an opponent can
object to a UC motion, which then bollixes up the Senate
process.
▪ UCs can be for minor things (like introducing the full text of a
speech into the Cong’l Record as if it had been delivered) or
for major things (like whether amendments will be permitted).
Can also be used to pass an entire bill w/o debate.
Floor action: Senate (cont.)
▪ Senators have used riders to get earmarks into laws.
▪ A “rider” is a (usually) non-germane amendment. A way to
get controversial provisions adopted.
▪ An “earmark” is a provision that benefits someone without
having been reviewed by all of Congress.
▪ Both House and Senate have adopted voluntary moratoria on
earmarks. See, e.g., http://www.speaker.gov/general/houserepublicans-renew-earmark-ban-113th-congress.
Floor action: Senate (cont)
▪ The flip side of the UC is the “hold.” A single Senator can place an
anonymous hold on a bill (or nomination) and the bill/nomination
does not move.
▪ This is an unofficial but time-honored tradition of the Senate and it
gives the leadership notices when a Senator has a problem that
needs to be addressed.
▪ Holds can be defeated by a “cloture vote,” which requires 3/5 of
Senators (i.e., 60 Senators if no vacancies) to approve.
▪ Moreover, the leadership does not have to honor a hold request but
then the Senator asking for it will just filibuster.
Floor action: Senate (cont.)
▪ Filibusters
o Talking a bill to death, although the mere threat of a filibuster is
enough now.
o Defeated by a cloture vote — 60 votes required.
o If cloture is not obtained, the bill will be pulled from the calendar
and either deals will be made or the bill is dead.
o Note that even if cloture is invoked, each Senator still can talk for
an hour more (for a total of 30 more hours).
Filibusters (cont.)
▪ Ted Cruz filibusters: https://www.youtube.com/watch?
v=0-4FQAov2xI
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Filibuster (cont.) (note: more cloture
motions = more filibusters.)
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Floor action: Senate (cont.)
▪ Filibusters (cont.)
o Action can be taken on other bills even if one bill is being
filibustered. This is called “double-tracking.”
•
•
This helps the Senate in the sense that other work can get done.
It also helps the Senator who is filibustering, since he/she no longer
has to talk continuously in order to keep the filibuster alive.
Floor action: Senate (cont.)
• The rules were changed in 2013 for presidential appointments other than
USSC; simple majority now works to beat a filibuster in those contexts (but
not in context of a bill). This was called (somewhat dramatically) the “nuclear
option.”
• Some contrasting perspectives:
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Floor action: Senate (cont.)
▪ Amendments:
o Need not be germane in the Senate.
o Riders are permitted in the Senate. Can be used -•
•
to get some pork that would not pass on its own, or
as a poison pill to ensure a veto.
o This allows a Senator to do an end-run around a calendar of floor
action: simply introduce your bill as an amendment to the bill
being debated.
•
•
Can even bypass the entire Senate committee process this way if it
works.
This was done to prevent conservative Judiciary Committee from
killing civil rights legislation.
Floor action: Senate (cont.)
▪ “Filling the amendment tree”
o In times past, Senators in the minority would sometimes introduce
controversial amendments (funding for controversial arts, taxes, etc.) and
force a roll-call vote to embarrass the other side.
o Response:
•
•
•
Majority Leader, exercising his/her right to be recognized first, will make an
amendment to a bill and then immediately move to amend the amendment.
Each bill will be permitted only so many amendments, and the Majority Leader
simply fills all the slots. No other amendments may be made until the pending
ones are voted on.
If Majority Leader has 60 votes, a cloture vote may be held to “close the
question” (i.e., bring the bill to a vote).
Without 60 votes, filling the tree is a temporary delay in the minority’s ability
to offer amendments.
In case you’re wondering…
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Summary of some House v. Senate
differences
Alpha dog: Speaker
Alpha dog: Majority Leader
Number: 435
100
Qualifications: 25 and 7
30 and 9
Term: 2 years
6 years
Revenue bills: must start in House
N/A
Amendments: must be germane
N/A (generally)
No filibuster/tighter debate rules
Filibuster okay/cloture votes
Unanimous consent: rarely used
Unanimous consent motions used often
Voting: Electronic possible
No electronic voting
Rules Committee very powerful
No counterpart; Senators more independent
Holds on bills: not used
One Senator can place hold on bills
Treaties and appointmts: no role for House
Advice & consent on treaties/appointmts
Specialists (relatively speaking)
Generalists
Impeaches
Tries impeachments
Electoral College duties: Picks President
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Picks Vice President
After House and Senate vote
If the version approved is identical, the
bill goes to the President.
If there are any differences, it will either
▪ Ping pong (used for minor
differences), or
▪ Go to conference. Lots of horse-
trading.
Conference committees (cont.)
▪ If agreement can be reached, the bill as amended goes back to
the full House and Senate for an up-or-down vote. No further
amendments at that point.
▪ Bill can be sent back to conference.
▪ If approved, the bill then goes to the President.
The President’s options
▪ Sign the bill.
▪ Veto the bill.
o May be overridden by 2/3 of those present in BOTH chambers
(assuming you have a quorum)
▪ Let bill become law by doing nothing for 10 days while
Congress is in session.
▪ “Pocket veto” the bill by doing nothing for 10 days and
Congress adjourns during those 10 days.
▪ Congress may NOT override a pocket veto.
The President’s options (cont.)
▪ No “line item veto.”
▪ Congress gave the President this power in 1996 but the
Supremes declared it unconstitutional in Clinton v. City of New
York (1998).
▪ The Court:
o Under the “Presentment Clause” (Art. I, Sec. 7, Cl. 2 & 3),
legislation that passes both Houses of Congress must either be
entirely approved or entirely rejected by the President.
o Vetoing only part is = amending the bill, and the Constitution says
that bills can be amended only by full legislative process.
The President’s options (cont.)
▪ In the absence of the line item veto, Presidents often will use “signing
statements” to try to affect how a law will be executed.
▪ What are they? Check out http://www.youtube.com/watch?
v=chQIK6G8uDk.
"I taught the Constitution for ten years. I believe in the Constitution and
I will obey the Constitution of the United States. We're not going to use
signing statements as a way of doing an end-run around Congress.”
Barack Obama, candidate for President of the U.S.
o “Jay Carney says President Obama was never against signing statements,
just when President Bush ‘abused’ them.” Source: http://
o
www.realclearpolitics.com/video/2011/04/18/
jay_carney_obama_was_never_opposed_to_signing_statements.html
Bills that don’t make the finish line
▪ If a bill is not enacted into law before the end of the first session of
a Congress, no problem; you just pick up where you left off with the
beginning of the next session.
▪ If a bill is not enacted into law before the end of a Congress (which,
you’ll recall, lasts for two years), the bill is dead and must be
reintroduced.
▪ This make Congressman sad….
For me next year:
How a bill becomes a law: give the kids notecards with steps and have them get in order. The fastest team
wins.
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A nice case study
▪ http://www.annenbergclassroom.org/page/life-of-a-law
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And that…
… is the end of chapter 13!
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