Congress: The First Branch [Illustrated] 0300220537, 9780300220537

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congress

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benjamin ginsberg kathryn wagner hill

Congress the first branch

new haven & london

Published with assistance from the foundation established in memory of Philip Hamilton McMillan of the Class of 1894, Yale College. Copyright © 2019 by Benjamin Ginsberg and Kathryn Wagner Hill. All rights reserved. This book may not be reproduced, in whole or in part, including illustrations, in any form (beyond that copying permitted by Sections 107 and 108 of the U.S. Copyright Law and except by reviewers for the public press), without written permission from the publishers. Yale University Press books may be purchased in quantity for educational, business, or promotional use. For information, please e-mail [email protected] (U.S. office) or [email protected] (U.K. office Set in Times Roman type by Integrated Publishing Solutions, Grand Rapids, Michigan. Printed in the United States of America. Library of Congress Control Number: 2019930485 ISBN 978-0-300-22053-7 (paperback : alk. paper) A catalogue record for this book is available from the British Library. This paper meets the requirements of ANSI/NISO Z39.48-1992 (Permanence of Paper). 10  9  8  7  6  5  4  3  2  1

In memory of our teacher and friend, Theodore J. Lowi

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CONTENTS

1 Congress: The First Branch  1 2 A Brief History of Congress: From First Branch to Second Fiddle  37 3 Congressional Elections  78 4 Political Parties and the Organization of Congress  122 5 The Legislative Process: The Rise of the New Order in Congress  152 6 Congress, the President, and Domestic Policy: Who Governs?  183 7 Congress and Foreign Policy  213 8 Congress and the Bureaucracy: Who Makes the Law?  239 9 Congress and the Courts  261 10 Reflections on Congres   290

Notes  301 Index  327

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Congress: The First Branch

america’s congress is often castigated for being slow and unproductive, a victim of cumbersome procedures and partisan intransigence. One frequently cited book called Congress the “broken branch” of government.1 Another wellknown volume, sharply critical of the Congress, called for “a new political order in which government is centered on the executive.”2 The idea that Congress is “broken” is misleading and actually does little ser vice to the cause of popular government in the United States. Congress is far from perfect. Yet, warts and all, Congress is the national government’ s most democratic political institution. Some may wish to award this distinction to the president, who, of course, can claim to be the only official elected by the cit zenry as a whole. Nevertheless, it is Congress that collectively reflects the d versity of the nation’s citizenry. No president, whether Democrat or Republi can, can actually represent more than a small fraction of the nation’ s disparate groups, interests, and political and social forces. As a body, the Congress represents many, even if not all, Americans. Only the Congress, moreover, governs in anything approaching a democratic and pluralistic manner. The congressional process, to be sure, seldom conforms to some idealized conception of democratic government. Some members of Congress are venal, inept, or indolent. Rates of incumbency are very high. The appearance of public deliberation can mask behind-the-scenes deals and bargains among small numbers of powerful insiders. House and Senate rules can allow the wishes of entrenched political forces and well-situated economic interests to prevail against the welfare of the more general public. All this is true. 1

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Yet, at its core, the congressional policy-making process frequently includes open hearings, public debate, and vigorous contention among a host of fractious groups. Though a small number of congressional hearings are closed, usually because executive branch witnesses claim national security concerns, the great majority of committee and subcommittee hearings are open to the public and to the press. Many hearings involve a parade of dozens, even hundreds, of witnesses from corporations, interest groups, and the administration. Even concerned citizens arrive on Capitol Hill to make their views known. It is unusual for any representative of any group, however small, to be denied an opportunity to testify.3 In the contemporary Congress, floor debate is not an empty exercise. Especially in the Senate, it can be lengthy and rancorous. Floor amendments are offered in both houses and often win acceptance. In short, despite its many imperfections, the U.S. Congress is a democratic decision-making body. And whatever Congress’s shortcomings as a democratic policy-making body, its credentials shine by comparison to those of the White House. Presidential decision-making generally takes place in private and is often shrouded in se crecy. Recent presidents have vehemently asserted that the secrecy of the processes leading up to their decisions is shielded by executive privilege. Not only are the deliberations for presidential decision-making often removed from the public domain, but even the decisions themselves are sometimes not revealed to the public or even to the Congress. Many so-called national security direc tives issued by presidents in recent years have been used to initiate secret missions by intelligence and defense agencies. 4 For many years, too, presidents have signed secret executive agreements with other governments, obligating the United States to various forms of action without congressional knowledge, much less approval. In 2015, for example, President Barack Obama (D) re sisted efforts by members of Congress to obtain the text of his proposed Trans-­ Pacific Partnership (TPP), a pending trade deal with twelve other nations. The president said the negotiations were confidential for national security reasons, though Congress would eventually be asked to approve the deal in the form of a congressional-executive agreement. President Donald Trump (R) reversed President Obama’s stance on the TPP, which is another aspect of presidential actions, namely that the new chief executive can easily reverse decisions of his predecessor. Like presidents before him, President Trump also pursues foreign policy objectives without consulting Congress, such as his negotiations with



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North Korea over denuclearization of that country (see chapter 7 for more on executive agreements and Congress and foreign policy). Many of the characteristics of Congress with which Americans are so impatient stem directly from the institution’s democratic nature. Members of Congress are elected individually and are likely to bicker , delay, and compromise because they represent a variety of dif ferent groups and interests that demand that their perspectives be voiced and insist that their narrow and even selfish interests be considered when decisions are made. Sometimes this individualism can produce collective-action problems as members are impelled to focus on their own particular interests rather than the general good. Congress can be come “gridlocked” and slow to act, particularly whenAmericans are themselves deeply divided. The legislative process is complicated because a representative assembly must find ways of balancing minority rights and majority rule and develop mechanisms for reaching decisions while still allowing competing claims to be heard and taken into account. In short, Congress is slow to act, cumbersome in its procedures, and contentious in its discussions because it is a democratic decision-making body. Many who disparage Congress are, in effect if not intent, disparaging popular government. The framers of the Constitution were certainly familiar with the inefficie cies of representative assemblies. They were conscious of the inclinations of some delegates to put parochial interests ahead of the collective good and of the tendency of others to engage in interminable partisan squabbling.5 The framers, however, were not particularly troubled by these proclivities. “In the legisla ture,” wrote Alexander Hamilton, “promptitude of decision is oftener an evil than a benefit. The differences of opinion, and the jarring of parties in that de partment of the government, though they may sometimes obstruct salutary plans, yet often promote deliberation and circumspection, and serve to check excesses in the majority.”6 And despite their awareness of the defects of popular assemblies, the framers placed what they viewed as the central power of government— the legislative power, or power to make the law—in the hands of just such a body .

Representation The U.S. Congress is a representative institution. Each of its members is expected to speak on behalf of the views and interests of numerous constituents

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when decisions are made in the Capitol. In ancient Athens, democracy entailed the assembly of all citizens, the “ecclesia,” in which all citizens might express their views and vote. This sort of assembly was possible within the context of a small city-state. However, one could hardly expect all the citizens of the United States to gather in an amphitheater to engage in political debate. Even today , when technology might permit the construction of an electronic version of the ecclesia, could hundreds of millions of citizens engage in the discussion, deliberation, and compromise needed to produce effective government? Representation is a rather complex idea. How can one individual represent another, much less many thousands of others? Let us count the ways. One form of representation might be based on some common identity . That is, a repre sentative might be so close to the district’s voters in terms of ethnicity, gender, religion, education, place of origin, philosophical perspective, and so forth that the representative and constituents are likely to have common views and interests. Congressional and senatorial candidates often appeal to voters on the basis of such social and political identities, claiming that they share some salient trait with those they hope to represent and that they are, as a result, likely to be sympathetic to their needs. Since constituencies are diverse, candidates for office often find it expedient to point to elements in their backgrounds that might s multaneously tie them to several constituency groups. A common identity between representatives and constituents seems to in crease the chance that the former will show sympathy for the interests of the latter. For example, of the fifty women serving in a recent Congress, forty r ceived perfect 100 percent ratings from the National Or ganization for Women (NOW) based on their roll-call votes on issues said to be of interest to women.7 Common identity, however, is not a guarantee that such a relationship will exist. Seven of the women serving in the same Congress received scores of 50 percent or below on women’s issues, with one congresswoman, Marsha Blackburn (R) of Tennessee, earning a rock-bottom 13 percent score. A second way in which representatives can be tied to constituents is called agency representation, indicating that the representative, regardless of similarity of identity, serves as an agent for his or her constituents in much the same way that attorneys or accountants might serve as agents for their clients. Pre sumably, patients seek the services of physicians who have the skill to help them and are not particularly concerned with finding a physician who shares their own ethnic identity. Similarly, voters may wish to be represented by individuals



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able to press their claims with care and skill rather than those who merely share their own ethnicity, gender, or religion. Agency representation can take two forms. The agent may seek to learn and follow the wishes of the client and act accordingly. In the case of Congress, representatives may make an effort to learn their constituents’ views and serve as spokespersons for these views on Capitol Hill. Such representatives are some times said to see themselves as their constituents’ delegates to Washington. Alternatively, an agent may act in what he or she perceives to be the client’ s best interests, even if the client is misinformed or unaware of those interests. In the case of Congress, representatives may view it as their responsibility to make use of their own experience and expertise to promote their constituents’ interests whether or not constituents agree with or even understand these ef forts. Such members of Congress are sometimes called trustees for their districts. At the heart of agency representation is the idea that representatives are ef fectively employed by the constituency . Whether they comport themselves as trustees or delegates, representatives must stand for election and can be sent packing if voters are unsatisfied with their performance. As Alexander Hamilton observed, elected representatives are “compelled to anticipate the moment when their power is to cease, when their exercise of it is to be reviewed, and when they must descend to the level from which they were raised; there forever to remain unless a faithful dischar ge of their trust shall have established their title to a renewal of it.” 8 A number of empirical studies have suggested that representatives do, indeed, pay attention to their constituents’ views as well as to their interests.9 Collective Representation

Both identity and agency representation are usually thought of in terms of the relationship between the representative or senator and the voters of his or her own district or state. Yet congressional representation can also be seen as a collective matter. Citizens may look to representatives from other districts or senators from other states or even Congress as a whole to speak for them. In deed, if citizens are so inclined, they may contribute money or volunteer to work in campaigns outside their own state or district. Much of the funding for con gressional campaigns today comes from ideologically motivated “super PACs” (see chapter 3) that contribute funds to many candidates in an attempt to infl ence the partisan makeup of the Congress. For their part, manyAmericans focus

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more on the character and composition of the Congress as a collective body than on the behavior of their own representative. Many , in fact, cannot name their own representative.10 To be sure, the distribution of some social characteristic or political perspective within the Congress may not accurately reflect that trait s distribution in the American populace. Women, for example, constitute slightly more than 50 percent of America’s population but only about 24 percent of the membership of Congress. This difference may reflect the persistence of gender-based social discrimination or the fact that for many female voters, gender is only one of several salient determinants of the voting decision. In either event, it seems unlikely that a representative body can fully reflect all the social traits and political preferences of 328 million Americans. If voters focus on one social trait, they will inevitably reduce the incidence of another. Even if we chose members of Congress through a lottery , some social or political features of the public would be underweighted or ignored. Yet very few social, religious, ethnic or other sociological features of the American public are entirely missing from the Congress. Take the matter of religion. Many Americans are formally represented by a senator or House mem ber who does not share their own religious identity . And some denominations are overrepresented and others a bit underrepresented in Congress relative to their percentage of the general population. Nevertheless, few Americans can fail to find some member of Congress who does not share their own faith and might be available to serve as a champion for that faith’s adherents. For example, as we can see from table 1.1, as of 2019 there were only three Muslim members of Congress, André Carson (D-IN), Rashida Tlaib (D-MI), and Ilhan Omar (D-MN); but they make a point of serving as national spokespersons for Mus lim concerns. Of course, the way in which congressional district boundaries are drawn can also affect the social and political makeup of the Congress. Efforts to shape the composition of the Congress and to alter the relative influence of competing political forces by manipulating district boundaries is called gerrymandering. We will return to this topic in chapter 3. Creating the Congress

The issue of representation was very much on the minds of the members of America’s Constitutional Convention of 1787. The framers viewed a represen-



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Table 1.1. Religious Affiliations of Members of the 116th Congress House Religion

Senate

U.S. Adults

Number

%

Number

%

%

385 233 141 6 5

88.7 53.7 32.5 1.4 1.2

86 60 22 4 0

86.0 60.0 22.0 4.0 0

71 48 21 2