"Means as Ends"

Syllabus | Introduction | Unit I | Unit II | Unit III

UNIT 3: LEGISLATIVE ASSEMBLIES: BICAMERALISM, REPRESENTATION,
AND LAWMAKING

Introduction

The most important duties of a modern legislature are commonly understood to be representation, deliberation, and lawmaking. According to dominant view within modern constitutional theory, these tasks are sufficiently related that they are properly housed within a single part of the government that is "publicly dedicated to making and changing the law." The dominant view may be summarized as follows: Most modern states are too large even to contemplate the possibility that the people themselves might assemble to discuss the nation's affairs, and hence the practice of using deputies or representatives prevails. Apart from the practical necessity of representation, representation generally produces qualitatively better policy outcomes than would result were the people themselves to gather together to discuss public affairs and formulate legislation. Representatives of different constituencies or estates thus assemble to discuss the public business and to pass laws pertaining to that business. That's what legislatures are for.

Not everyone agrees that the constellation of representation, deliberation, and lawmaking is a desirable one. Writing as a modern but from outside the modern constitutionalist tradition, Jean-Jacques Rousseau opposes representation on the grounds that it interferes with true self-government, which takes place as citizens deliberate amongst themselves and attempt to formulate laws that accord with the general will. Representative government results in laws have not been formulated by the citizens themselves, i.e., they are not general in essence, giving such laws the status of illegitimate impositions on the people.

Writing from within the modern constitutionalist tradition, John Stuart Mill would decouple representation and deliberation from lawmaking, for which he thinks numerous assemblies are not well suited. Laws would be better made by a smaller legislative commission. While the representative assembly would give instructions to the commission and have veto power over the laws it formulated, it would not have responsibility for formulating the laws itself. Mill did not think that his concerns, which included the consistency of law, could be adequately addressed by any kind of legislative committee system.

This section focuses on the dominant view of legislatures as sites of representation, deliberation, and public lawmaking. Nevertheless, it is sensitive to Mill's concerns about legislative competence in particular, in response to which modern legislatures must, at least implicitly, defend themselves. To begin, however, we consider one of the most basic questions that must be asked when constituting a legislative body: Will it consist of one chamber or two?

Unicameralism and Bicameralism

Only a handful of nations have experimented with tricameralism, so our focus will be on the typical cases of unicameralism and bicameralism. Consideration of the number of chambers a particular legislature ought to have is of critical importance precisely because this number influences the primary legislative functions of representation, deliberation, and lawmaking.

The Case for Unicameralism

More than half of the nations in the world have unicameral legislatures; these nations are often, though not always, small and homogenous. Arguments in favor of unicameralism typically emphasize the connection between having a single legislative assembly and popular rule. Without the need for a second chamber's concurrence, an assembly of the nation's representatives can be responsive to public opinion and efficiently translate the people's will directly into law. From such a legislative process, the voice of the people can emerge more clearly and distinctly than would be the case if legislation were subject to the delays and reconsideration associated with having a second chamber, particularly an upper chamber constituted for the very purpose of checking the impulses of a lower, more popular assembly.

Advocates of unicameralism also maintain that a simpler institutional design facilitates popular rule by making it easier for the average citizen to understand the workings of the legislature. Such knowledge is crucial for holding those in power responsible. While unicameral legislatures might be more or less complex institutions, in principle it is easier to be acquainted with the workings of one chamber rather than two, especially if the two chambers are dissimilar in design. This allows citizens to keep a close eye on their representatives. Moreover, the nature of bicameralism permits both chambers to engage in buck passing. With a single chamber, citizens can more easily hold the legislature as a whole accountable for public policy and the direction of the nation. Or as the Anti-Federalist Centinel put it, "[W]henever the people feel a grievance, they cannot mistake the authors, and will apply the remedy with certainty and effect, discarding them at the next election."

The Case for Bicameralism

Proponents of bicameralism dispute the virtues of legislative efficiency and simplicity of institutional design. Although a bicameral legislature might with some frequency prevent the passage of salutary measures, this is a small price to pay for the obstacles it creates to precipitant legislation and majority tyranny. Even if popular rule is mediated by the institution of representation, having only a single, frequently elected, numerous legislative body will tend to produce ill-considered policies that reflect the public's current passions and preoccupations rather than its considered views. By contrast, in requiring two considerations of a measure, bicameralism serves as a check on hasty measures and promotes legislative deliberation. Having a compounded, rather than a simple, structure also helps reduces the possibility of majority tyranny, which would encounter fewer institutional obstacles in a single legislative assembly. Bicameralism affords the people a significant degree of control over their government while at the same time seeking to ensure that policy is grounded in the "cool and deliberate sense of the community" rather than in the public's passions.

In principle, two similarly constituted chambers might go some distance toward promoting legislative deliberation and checking majority tyranny, but these effects of bicameralism are likely to be stronger when the chambers are qualitatively different from one another. Qualitatively different chambers can be distinguished from one another in various ways, but they often feature distinct '"logics of representation."' For example, a legislature might be composed of houses for a nation's different estates or classes, such as a house for hereditary nobles and a house of commons. In theory, assigning each estate a portion of legislative power affords both estates constitutional protection for their interests by inviting them to struggle for power, resulting in a balanced constitution in which all parties enjoy legal protection because neither class is strong enough to dominate the other permanently. However, bicameralism of this sort is possible only when one a) has a hereditary nobility that b) is strong enough to provide a counterweight to the commons. In a democratic age, such legislatures have all but ceased to exist. The lone exception —the British Parliament—essentially proves the point. The power of the contemporary House of Commons so exceeds that of the House of Lords that the British Parliament is effectively unicameral.

In societies without formal estates, qualitative difference must be established on other foundations. The design of the American Congress provides a good example. In The Federalist Papers, Publius defends the desirability of having two legislative chambers that are distinguished from one another "by every circumstance which will consist with a due harmony in all proper measures and with the genuine principles of republican government." While important aspects of the Congress were the result of compromise, the American Framers ultimately devised legislative chambers intended to fulfill different purposes in the lawmaking process. To ensure that the chambers would serve these purposes, they paid special attention to institutional design.

The Framers established a popularly elected House of Representatives to ensure that the government would have a "common interest with the people." To secure this attachment, frequent elections would be necessary, though the Framers settled on a two-year term rather than annual terms, which were popular at the time of the Founding. A two-year term was short enough to secure the responsibility of House members to the people but long enough to provide advantages that annual terms could not. For example, a slightly longer term would allow representatives to be better informed about the diverse affairs of the "extended republic"; having more experienced personnel would also mean that the House could be wiser in its dealings with the more permanent and stable institutions of the national government.

The "logic of representation" in the House would be proportional representation. With the notorious exception of the three-fifths clause, which counted three fifths of the total number of slaves for purposes of representation and taxation, representatives would be apportioned among states on the basis of the population. Publius maintains that there is a "natural and universal connection" between the "personal rights of the people" and proportional representation. This connection is grounded in the assumption of equality, for it is only on the assumption of equality that one could make an argument for a right to proportionate influence.

If House's raison d'être was popular liberty, the Senate's was wisdom and stability in government. In the Framers' view, this could be achieved only by placing the Senate at some distance from public opinion. This was accomplished in the first instance by having the Senate chosen by the state legislatures, rather than by the people directly, a mode of appointment that lasted until 1913, when popular election of senators was instituted by constitutional amendment. Secondly, Senate terms would be six years, long enough to permit senators to concern themselves with the long-term interests and welfare of the nation in an atmosphere less exposed than that of the House to the most violent fluctuations in public opinion. Longer terms would also allow senators to be better acquainted than House members with the "objects and principles of legislation," and a staggered reelection calendar—only one third of the Senate would be up for reappointment every two years—would ensure some measure of policy continuity.

In addition to distancing the Senate from public opinion, the Framers hoped to promote wisdom and stability in the legislature by keeping the Senate small. If the House's size was a possible source of intemperance, a body designed to check such intemperance should be free from obvious causes of it. Large and small bodies behave differently, and the Framers thought that a small Senate would prove a less clamorous environment for serious debate and deliberation.

The Senate's "logic of representation" would be the principle of the equality of states. Each state would have two senators, regardless of population. This provision was the result of the Great Compromise, the agreement between the large and small states at the Convention that determined the structure of the legislature. Though James Madison had favored proportional representation in the Senate as well as in the House, writing as Publius, he considered the possible advantages of such a principle of representation. Chief among the possible advantages of this "complicated check on legislation" was the fact that it would require concurrent majorities of the people and the states to pass legislation, thereby providing an additional check on "improper acts of legislation."

The Framers distinguished the House and Senate in other ways. The bodies would have different minimum age requirements (25 for the House, 30 for the Senate) and require different periods of citizenship for eligibility (7 for the House, 9 for the Senate). These distinctions are justified by the "nature of the senatorial trust," which requires more knowledge and maturity and involves "transactions with foreign nations." The House and the Senate also have, in some cases, distinctive constitutional responsibilities. "Transactions with foreign nations" refers, of course, to the Senate's participating in making treaties, and the Constitution provides that tax legislation must originate in the House.

As the shift toward popular election of senators has reduced the degree of qualitative difference between the House and the Senate, the question inevitably arises whether the two bodies are still constituted differently enough to allow for a difference of perspective on legislation. Tocqueville had maintained that indirect election was the crucial difference between the House and the Senate, going so far as to say that the American states would be "miserably lost among the shoals of democracy" if they did not make more frequent use of "election in two stages" in the future. However, there is considerable debate about how much changed with Seventeenth Amendment. Some have argued that the shift to popular election has indeed made the Senate more responsive to public opinion, while others have argued the opposite, pointing to similarities between pre- and post-Amendment Senate "in terms of the types of candidates that run for Senate, the role of money in elections, the role of partisan elections, and the nature of Senate ideological and legislative behavior." If significant differences between the House and the Senate persist, it might mean that, pace Tocqueville, indirect election was not everything as far as qualitative difference is concerned. Different term lengths, differences in size, and different "logics of representation" remain. Speaking of bicameralism more generally, one scholar suggests that even small institutional differences might be enough to secure its advantages.

Lastly, we have already indicated that bicameralism allows for different "logics of representation" to be present in a legislature. An implication of this is that the people can be represented in more than one way. Can, of course, does not settle the question whether the people ought to be represented on the basis of multiple principles of representation, and by far the dominant tendency in electoral politics is for consideration of population to trump all. For example, in the United States, representation in the Senate alone is based on a principle other than population. Originally, U.S. House seats were apportioned to states on the basis of population, but the states themselves could decide how to draw House district boundaries. However, interpreting the Equal Protection Clause, the Supreme Court has held that population must be the primary criterion whereby U.S. House districts and state legislative districts are drawn, with all districts being roughly equal in size. Dissenters in this line of cases argue that the Court is simply privileging one possible basis of apportionment among many, which might also include regional differences in industry or way of life more generally (e.g., urban vs. rural). "One man, one vote" is likely to be the Court's view on this question for a long time, but it is nonetheless worth considering whether something valuable is lost in terms of representation and diversity when we assume that "the people" must be represented on the basis of number only.

Representation: Beyond Trustees and Delegates

Pitkin and Burke

There can be different "logics of representation," but what, precisely, is representation? In her classic study of the concept, Hanna Pitkin observes that representation of any kind involves making present something which is in fact absent. In a political context, representation is a "public, institutionalized arrangement" in which representatives "ac[t] in the interests of the represented, in a manner responsive to them." In so doing, representatives ensure that the people, though not "literally act[ing] for themselves" in the halls of government, are nonetheless "present in government action," and not in a passive way. In truly representative governments, the people always have the option of initiating action, or of "act[ing] through" their representatives, so that it can be said of such governments that they are ultimately controlled by the people.

Properly understood, representation is a complex phenomenon. Just as "something absent can be made present in many different ways," the people can be represented in several different senses—substantively, in terms of their interests; descriptively, in terms of the similarity or likeness between them and their representative; symbolically, in terms of whether they believe in their representative; and formalistically, in terms of whether the people's representative is the legitimate occupant of an official position. While Pitkin's understanding of political representation emphasizes the importance of the substantive representation of interests, she acknowledges that political representation as an activity might involve all of these modes of representation at one time or another. "Political representation is," she maintains, "as wide and varied in range as representation will allow."

An important implication of this is that representation is far more complex than the old "trustee-delegate" debate suggests. Encapsulated most famously by Edmund Burke (whose ideas about representation are not exhausted by this debate), this debate suggests that there are essentially two roles that a representative might adopt as someone who is charged with attending to his constituents' interests. A delegate understands himself to represent the "will" and "inclination" of his constituents. His will is "subservient" to theirs, and he understands his representative task to consist in carrying into effect the people's wishes on matters of public policy. Burke is famously critical of this giving of "instructions" to representatives. To be sure, the "wishes [of his constituents] ought to have great weight with him," and the representative's personal interests should be subordinate to those of his constituents. However, the representative is bound first and foremost to adhere not to the opinion of his constituents, but to the determination of his own reason and judgment. Moreover, this reason and judgment must be informed by discussions with other representatives in Parliament, not by merely local considerations. The representative should not allow "local Purposes" and "local Prejudices" to guide his behavior in Parliament. When these happen to be opposed to the welfare of the nation as a whole, they must be set aside.

A number of points can be made about this debate. First, these positions come close to being the poles within which actual representation can occur. A representative who passively mirrors the views of his constituents without the intervention of his own judgment and discretion is not "substantively acting for" his constituents, which might involve pursuing their interests in opposition to their wishes from time to time. On the other hand, a radicalization of Burke's position might emphasize political expertise and judgment without any reference to a particular constituency or its wishes. Neither of these extremes is consistent with political representation. Second, representatives' actual behavior is influenced by a large number of considerations: They are not simply trustees or delegates. For example, representatives operate within an institutional framework, which has its own norms, and are members of political parties, which have their own agendas. They also have their own ideas about things and, for that matter, represent not merely one interest, but a constituency with multiple interests. In theory, the activity of representation involves all of these things and more and can thus be reduced to a single activity or mode only by distortion.

Descriptive Representation

Before quitting the subject of representation, it is worth saying something particularly about descriptive representation, which has a modern form but is not a novel concept. Notions of descriptive representation emphasize various forms of likeness or similarity between a representative and his or her constituents. Likeness can, of course, focus on a variety of characteristics shared by the representative and the represented. Modern arguments about descriptive representation often focus on historically disadvantaged groups, such as women and racial and ethnic minorities. The central question is something like "Should Blacks Represent Blacks and Women Represent Women?", to borrow part of the title of a well-known article.

An older form of descriptive representation was advocated by the Anti-Federalists, who argued for the importance of '"sameness, as to residence and interests, between the representative and his constituents."' The Anti-Federalists maintained that only "natural aristocrats" could get elected to the House of Representatives proposed by the Constitutional Convention. The House's relatively small size meant that districts would be large, meaning that only outstanding citizens would be likely to win elections. While the Anti-Federalists never settled on a specific alternative proposal, they generally preferred a numerous popular assembly filled with a large number of representatives resembling the average person. The thought was that this likeness would help secure the responsibility of the government to the people by ensuring that those in power could sympathize thoroughly with the needs and circumstances of the governed. With sympathy secured almost automatically by likeness, representatives would be more likely to formulate policies that accorded with the interests of the governed.

Pitkin is critical of descriptive representation, which she maintains is more about "giving information" about a particular population than "acting for" a constituency, the hallmark of political representation. Moreover, because descriptive representation focuses on shared characteristics rather than "acting for," it is not oriented toward holding the representative accountable for his actions.

While it is true that likeness is no guarantee of the best possible political representation or even of basic legislative competence, it is also the case, contra Pitkin, that accounts of descriptive representation often assume a connection between likeness and action. Likeness is conceived of as a means of securing the representation of important interests or the performance of important "functions," such as demonstrating the capacity for political rule by members of historically disadvantaged groups. Likeness is not normally for its own sake, as Pitkin assumes, but rather there is typically "baked into" the notion of likeness the idea that it is necessary in order to accomplish some purpose related to the interests of those whom the representative resembles. Again, the point is not that those who favor likeness are always right about this connection in a particular case, but simply that they do make the connection.

The Legislative Process

The processes and procedures whereby laws are made matter. How a legislature "operates affects what it does," and this operation can either impede or facilitate the specific ends for which a particular legislature was designed. To discuss the importance of legislative process, we will focus on some key elements of the organization of the American Congress and the processes, rules, and procedures it makes use of in making laws.

A principal aim of the American Framers' innovative bicameralism was to slow down the legislative process in order to make it more deliberative, which they hoped would result in better policy outcomes. They wanted the people to rule through their representatives, and the Senate was designed to help ensure that the people ruled as the best version of themselves. Many features of the contemporary Congress seem conducive to the Framers' related goals of checking hasty measures, preventing majority tyranny, and fostering deliberation in the lawmaking process. Generally speaking, the current procedural and organizational framework of Congress provides numerous veto points in both chambers, opportunities for legislation to be shaped by lawmakers of differing views, and multiple sites at which deliberation might occur. On the other hand, some observers of the contemporary Congress contend that very little actual deliberation occurs in Congress, which is often mired in policy gridlock produced by the interaction of intensified partisanship and legislative procedures better designed for blocking legislation than for facilitating anything.

Political Parties

As is true of most other national legislatures, political parties play a crucial role in the organization and operation of Congress. Legislative assemblies are by their nature fragmented. They bring together representatives from different parts of the nation whose task it is to discuss the nation's sundry affairs and to formulate national policy. To do this adequately in an orderly, methodical fashion requires a significant division of labor (e.g., committees and subcommittees) among individuals who, in the American context, are extremely mindful of local constituencies and local interests. Political parties serve to organize the disparate activities of a legislative assembly and to coordinate action among a large number of office holders with their own goals.

For example, a crucial way in which parties help to organize the legislature is to provide the leadership structure. Members of the majority party in both the House and the Senate occupy the key leadership positions—such as the speakership in the House and, in both chambers, the position of majority leader as well as the chairmanships of all committees and subcommittees. Members of the minority party have leadership posts, too, such as the position of minority leader in both the House and the Senate.

While the leadership of each chamber plays a significant role in organizing the chamber's work, the role of the leadership differs between the House and the Senate. In the House, being in the majority confers substantial institutional prerogatives. The Speaker of the House, for instance, enjoys a great deal of control over the scheduling of legislation. By contrast, in the less hierarchical Senate, the majority and minority leaders often confer on the scheduling of legislation. To a certain extent, the leadership structure also helps the parties exercise influence over party members. While party discipline in the American Congress is relatively weak compared to that seen in most parliamentary democracies, the leadership's control over committee assignments, for example, can serve as both stick and carrot in whipping votes.

How a Bill Becomes a Law

(a) Committees: Hearings, Markups, and Conference Reports

Bills must be introduced in the House or Senate by a member of that chamber, after which they are referred to the appropriate committee for consideration. Bills may then be considered by the full committee or referred by the committee chair to a subcommittee, though many bills will be ignored altogether or dropped from consideration at a certain point. The vast majority of bills do not make it out of committee and "die automatically" at the end of each Congress.

Richard Fenno's work has made it seem obvious that not all committees are the same. Committees vary in terms of their internal organization and decision-making processes in ways that reflect committee members' goals and the "environmental constraints" to which they and the committee as a whole are subject. Committees also vary in terms of their degrees of influence within their chamber, levels of expertise, autonomy, success on the floor, and relationships with the executive branch.

Despite this variation, committees follow the same general process when considering legislation. Both subcommittees and committees hold hearings and mark up bills, and committees issue reports for the few bills that they ultimately send to the chamber floor. These stages of (sub)committee-level activity form the heart of the legislative process and are the reason why committees have been described as the "workshops" of Congress. Contrary to what the C-SPAN camera might suggest on a typical day, meaningful speeches and serious exchanges of ideas do occasionally occur on the floor of the House and the Senate. Nevertheless, much of the real legislative action takes place at the committee level.

Public hearings conducted by (sub)committees are an opportunity for lawmakers to educate themselves and the public about issues of public concern and the merits of various policy proposals. While hearings also provide occasions for lawmakers to engage in self-promotion and to do battle with the executive branch, the core information-gathering and deliberative purposes of most hearings are vital to the legislative process. At hearings, members of Congress solicit information and feedback from expert witnesses and concerned citizens about proposed legislation.

Public hearings are part of the larger process—which includes, for example, use of the Congressional Research Service—by which committees handle the work delegated to them by the chamber and through which they can develop expertise in certain policy areas. Not every senator can be a foreign policy expert, but long-serving members of the Foreign Relations Committee can be. It is thus not surprising that the information gathered and arguments explored in hearings often contribute significantly to the final shape of congressional legislation.

If after hearings a subcommittee or committee wants to proceed with a bill, a markup session is held in which lawmakers and their staffs work on the specific content and language of the bill. These used to be closed meetings, but in an effort to increase transparency and accountability, the House and the Senate decided several decades ago to open these meetings up to the public. The presence of often highly interested spectators has dramatically altered the atmosphere of these sessions, which were once reportedly characterized by free discussion, "informal give-and-take," and a relative absence of political posturing. With an audience, committee members' every word is subject to scrutiny, as it is at hearings. Seeking shelter from the "sunshine" of open meetings, committee members sometimes meet in advance of public markup sessions in order to deliberate amongst themselves in the old freedom and privacy.

If a committee wants to send a bill to the chamber floor, it drafts a committee report, an important document that summarizes key provisions of the legislation as well as supporting evidence and arguments from the committee's work. The report itself must be approved by the committee and is frequently the only document many members will have consulted before voting on a piece of legislation.

(b) Scheduling Legislation and Floor Activity: House "Rules," Unanimous Consent Agreements, and Filibustering

At this point, the practices of the House and the Senate diverge. In the House, every bill that makes it to the floor must be assigned a "rule" by the Rules Committee, which, at present, is very much under the control of the Speaker of the House and the majority party. The Speaker thus exercises significant control over "whether, when, how, and in what order" bills that have been placed on the House calendar are brought to the floor. A rule issued by the committee essentially establishes the terms under which a bill will be debated by the full House, including the time allowed for the debate, whether amendments can be offered and, if amendments are permitted, the conditions under which they can be offered. The Senate also has a means of imposing time limits on debate and controlling the amendment process: the unanimous consent agreement. Unanimous consent agreements—by which the Senate suspends its ordinary rules and procedures, which allow for unlimited debate and amendments—are used routinely by the Senate to cope with its substantial workload. However, such agreements will not be reached when even one senator wishes to avail herself of all her ordinary procedural rights.

If the majority rules in the House, individuals and minorities rule in the Senate. This is because in the absence of a unanimous consent agreement or the invocation of the so-called nuclear option, it takes a supermajority of senators to bring debate to a close and legislation to a vote. Individual senators and the minority therefore have enormous power to block legislation or exact concessions in exchange for allowing legislation to move forward.

The Constitution allows both houses of Congress to establish their own rules and procedures, and the state of affairs described above is the result of such drafting and redrafting in the Senate. In his A Manual of Parliamentary Practice for the Use of the Senate of the United States, Thomas Jefferson wrote, "No one is to speak impertinently or beside the question, superfluously or tediously." Nevertheless, only five years later the Senate eliminated the "previous question motion," a procedure that had allowed a Senate majority to end debate on the proposal under discussion. This rules change opened the door for unlimited debate, as there was now no mechanism for bringing a matter to a vote in the face of opposition to doing so.

In 1917, the Senate adopted Rule 22, its first cloture rule, which allowed two thirds of senators present to bring debate to a close, a figure that was lowered to sixty percent in 1975. The cloture rule had originally applied only to floor legislation, but it was extended to presidential nominations in 1949.

Although Senate rules have almost always permitted filibustering, until the mid-20th century, filibusters were relatively rare and often noteworthy events. Defined generally, filibustering is simply "the use of delay—or the threat of delay—for strategic gain in a legislative setting." Filibustering need not involve the giving of long floor speeches but rather can involve a "variety of tactics." Nevertheless, it is not without reason that the notion of filibustering in the Senate usually conjures images of Senator Jefferson Smith (Jimmy Stewart) giving a long floor speech in Mr. Smith Goes to Washington. For a long time, the norms of collegiality in the Senate discouraged routine filibustering, with the filibuster tending to be reserved for high-stakes, high-profile situations, such as the build-up to World War I or consideration of civil rights legislation. When filibustering did occur, it tended to involve obstructionist floor action and was thus in various ways costly to the senator or senators who engaged in it. Although invoking cloture was possible after 1917, senators usually dealt with obstruction through negotiation and a "war of attrition" in the Senate chamber.

A concatenation of developments beginning in the 1960s has reduced the "costs" of filibustering, and, as a result, the number of filibusters has increased significantly. First, in the 1960s, senators began to make more frequent use of the cloture rule in an effort to break filibusters. However, an unintended consequence of the revival of cloture has been that the mere mention of the possibility of a filibuster can trigger the need to contemplate cloture, as the costs of conducting successful wars of attrition against filibustering senators have increased over time. Second, the longstanding practice of the Senate was to consider only one item of business at a time, but the introduction of "multi-tracking" in the 1970s means that the Senate can now have multiple pieces of legislation or nominations pending simultaneously. Introduced to allow the business of the Senate to proceed despite a filibuster, multi-tracking has contributed to an explosion in the number of filibusters, which no longer prevent the Senate from dealing with other, generally less controversial matters. Given the difficulty of invoking cloture, senators now regularly signal their intention to filibuster legislation or a presidential nomination knowing they will rarely be required to follow through and cause a scene by disrupting the business of the chamber. Lastly, senators also use holds—requests that the majority leader not schedule legislation or a nomination for floor debate—as a "form of silent filibuster." In the past, holds were requested primarily to allow a member a bit more time to seek out information about a measure prior to floor debate; they were about temporary delay. However, holds are increasingly being used as a tactic for permanently blocking floor action on a measure or for "tak[ing] hostages" so as to strengthen one's bargaining position.

To circumvent the filibustering of presidential nominees (though not, as yet, legislation), both Democratic and Republican majorities have used the "nuclear option," in which a majority votes to reinterpret Rule 22 as holding that a majority—rather than 60 percent—of those present can invoke cloture. In 2013, Democrats applied the new precedent to all presidential nominations except those to the Supreme Court, an exception which Republicans used the nuclear option to eliminate in 2017 in order to secure the confirmation of Neil Gorsuch to the Supreme Court.

The institution of the filibuster is the key procedural difference between the House and the Senate, and many have wondered what the current state of affairs might mean for its future. At its best, the filibuster encourages deliberation by ensuring minority views a place in the policy process and provides the majority a powerful incentive to take those views seriously. While the cloture rule was instituted to ensure that a determined individual or minority could not thwart the will of a supermajority of the body, the rule has, over time, evolved into a requirement of more or less permanent supermajority rule. Together with other factors, the difficulty of achieving this has, ironically, further empowered individual senators and greatly inhibited the Senate's ability to function effectively. Such are the consequences of the "non-deliberative filibuster." Frustrated with this situation generally and particularly with the difficulty of confirming presidential nominees, the Senate effectively made itself a majority-rule institution on presidential nominations. This shift has allowed the Senate to expedite consideration of presidential nominations but has arguably done little for the cause of deliberation.

According to Publius, as the less popular branch of the legislature, the Senate could maintain its "constitutional authority" only through a "display of enlightened policy, and attachment to the public good." A procedure constitutionally permitted but not required that distinguishes the Senate from the House, the filibuster might be all the more dependent for its continued existence on enlightened practice. Calls for its general elimination can be met by resounding defenses of minority rights, though these are less likely to be persuasive in the absence of proposals for filibuster reform that address the dysfunctionality of the status quo.

The Presidential Veto

Legislation must be approved by both houses of Congress in "identical form." Most of the time, this occurs without the need to convene a conference committee composed of members of both chambers, though conference committees tend to be required for some of the most important pieces of legislation.

Legislation approved by both houses of Congress is then sent to the president, whom the Constitution affords a qualified veto over legislation. The presidential veto is an important part of the Framers' system of separated powers and checks and balances that has both "negative" and "constructive" qualities.

Despite some "ambivalence" about the veto power's monarchical origins, the American Framers eventually agreed that strengthening the executive power would require arming it with a means of resisting the encroachments of the legislative power. Without a "negative" of some sort, the executive could not "defend himself against the depredations" of the legislature, and the legislature might thus succeed in "absorb[ing]" the executive power. The veto power positions the president to "interact and compete successfully" in the Constitution's scheme of separated powers.

The veto power is not simply about "executive self-defense." The veto also gives the executive a role in lawmaking intended to guard the community "against the enaction of improper laws." On the one hand, the mere existence of the presidential veto should have a positive effect on the lawmaking process, as it should encourage increased legislative deliberation and discourage those engaged in "unjustifiable pursuits." Additionally, the design of the veto power reflects the Framers' intention that it have a "revisionary," "constructive" character, not simply a negative one. Rather than giving the president an absolute veto over legislation, the Constitution gives him a qualified negative. A two-thirds vote in both houses of Congress can override a presidential veto, a provision that encourages reconsideration and revision, not simply executive nay-saying. Moreover, the Constitution requires the president to state the reasons for his veto in writing, a further indication that the veto power was designed to enhance the quality of lawmaking even as it protected the president from the intrusions of the legislative power.

The Legislative Veto

Finally, discussion of the now-unconstitutional legislative veto helps highlight some of the challenges Congress faces when legislating in an era of "big government," particularly when so much of the national government's expansion has been concentrated in the executive branch.

In addition to the constitutional checks at its disposal, for several decades, Congress used the legislative veto—a device not mentioned in the Constitution—to check the actions of the executive branch. The legislative veto was used in conjunction with delegations of legislative power to executive officials or agencies. Though legislation, Congress would provide general direction on a matter but would delegate power "to promulgate particular regulations or make certain decisions." However, it would "reserv[e] the right to reject those regulations or decisions if they were thought wrong." Congress as a whole was not necessarily involved in exercising the legislative veto; a particular piece of legislation could place the legislative veto in the hands of one part of Congress (e.g., a single chamber or even a single legislative committee).

In Immigration and Naturalization Service v. Chadha (1983), the Supreme Court declared the legislative veto unconstitutional, holding that it violated separation of powers as well as the lawmaking process outlined in the Constitution. Writing for the majority, Chief Justice Burger said that regarding separation of powers, the legislative veto allowed Congress to interfere with the actions of various executive branch officials, giving Congress too much control over the executive. Regarding the lawmaking process, the Constitution requires that bills pass both houses of Congress and be presented to the president for his signature. In effect, the legislative veto permitted laws to be made in an irregular way. When an action taken by an executive official or agency was vetoed legislatively, law was being made without a bill's being presented to the president for his signature and, in many cases, without majority approval in both houses of Congress. In the Court's view, Congress had to choose between making laws in the ordinary, cumbersome way or delegating legislative authority to the executive branch that could only be revoked using standard legislative procedures. The legislative veto was a "convenient shortcut," but not a constitutional one.

Justice White's dissenting opinion in Chadha argued that this shortcut was an important "political invention" developed by Congress to check the aggrandizement of the executive in an age in which Congress must delegate a considerable amount of legislative business to the executive branch. Article I of the Constitution establishes the legislature as the principal lawmaking authority, and the legislative veto permitted Congress to remain the principal lawmaking authority. From a constitutional standpoint, Justice White argued, the legislative veto was less problematic than administrative lawmaking, in which executive officials and agencies use delegated authority to make "regulations having the force of law without bicameral approval and without the President's signature."

Supplemental Materials for Unit 3

Suggested Discussion Questions

 What are the primary functions of a legislative body?
 Why is the lawmaking power of the state often housed primarily in a legislature? What are the strengths and weaknesses of legislatures as lawmaking bodies?
 Make the case for both unicameralism and bicameralism.
 Should the second house of a bicameral legislature be "qualitatively different" from the first?
 What is the core idea behind the different meanings of "representation"?
 In your view, which senses of "representation" are the most politically relevant?
 What role do parties play in the organization and functioning of the American Congress?
 Explain the formal process that most bills pass through before becoming laws.
 Is legislative "gridlock" a sign that Congress is functioning as the Framers intended?
 How much deliberation occurs in the contemporary Congress? What are some possible sites of deliberation?
 Describe and evaluate the evolution of the Senate filibuster.
 What role did the Framers expect the presidential veto to play in our constitutional system?
 Was Chadha rightly decided?

Further Reading

Unicameralism and Bicameralism

 Arend Lijphart, Patterns of Democracy: Government Forms and Performance in Thirty-Six Countries, 2nd ed. (New Haven: Yale University Press, 2012).
 Anthony Mughan and Samuel C. Patterson, Senates: Bicameralism in the Contemporary World (Columbus, OH: Ohio State University Press, 1999).
 Thomas A. Rousse, Bicameralism vs. Unicameralism (New York: Thomas Nelson and Sons, 1937).
 Meg Russell, The Contemporary House of Lords: Westminster Bicameralism Revived (Oxford: Oxford University Press, 2013).

Representation

 Richard J. Fenno, Jr., Homestyle: House Members in Their Districts (New York: Little, Brown and Company, 1978).
 David Lublin, The Paradox of Representation: Racial Gerrymandering and Minority Interests in Congress (Princeton: Princeton University Press, 1999).
 Bernard Manin, The Principles of Representative Government (Cambridge: Cambridge University Press, 1997).
 Jane Mansbridge, "Rethinking Representation," American Political Science Review, vol. 97, no. 4 (2003): 515-528.

The U.S. House and Senate

 Gary W. Cox, "On the Effects of Legislative Rules," Legislative Studies Quarterly, vol. 25, no. 2 (2000): 169-192.
 Gregory Koger, Filibustering: A Political History of Obstruction in the House and Senate (Chicago: University of Chicago Press, 2010).
 David R. Mayhew, The Electoral Connection, 2nd ed. (New Haven: Yale University Press, 2004).
 Nelson W. Polsby, "The Institutionalization of the U.S. House of Representatives," American Political Science Review, vol. 62, no. 1 (1968): 144-168.
 Eric Schickler, Disjointed Pluralism: Institutional Innovation and the Development of the U.S. Congress (Princeton: Princeton University Press, 2001).
 Barbara Sinclair, Transformation of the U.S. Senate (Baltimore: John Hopkins University Press, 1989).
 Barbara Sinclair, Unorthodox Lawmaking: New Legislative Processes in the U.S. Congress, 4th ed. (Washington, DC: CQ Press, 2012).
 Jacob R. Straus, ed., Party and Procedure in the United States Congress (Lanham, MD: Rowman and Littlefield Publishers, Inc., 2012).
 Daniel Wirls and Stephen Wirls, The Invention of the United States Senate (Baltimore: Johns Hopkins University Press, 2004).

Presidential Veto Power

 Charles M. Cameron, Veto Bargaining: Presidents and the Politics of Negative Power (Cambridge: Cambridge University Press, 2000).
 Charles Cooper, Louis Fisher, Stephen Glazier, Forrest McDonald, James C. Miller, William Niskanen, Robert H. Bork, L. Gordon Crovitz, and Ronald W. Reagan, Pork Barrels and Principles (Washington, DC: National Legal Center for the Public Interest, 1988).
 David W. Rohde and Dennis M. Simon, "Presidential Vetoes and Congressional Response: A Study of Institutional Conflict," American Journal of Political Science, vol. 29, no. 3 (Aug., 1985): 397-427.
 Richard A. Watson, Presidential Vetoes and Public Policy (Lawrence, KS: University Press of Kansas, 1993).

Legislative Veto

 John R. Bolton, The Legislative Veto: Unseparating the Powers (Washington, DC: American Enterprise Institute for Public Policy Research, 1977).
 Barbara Hinkson Craig, Chadha: The Story of an Epic Constitutional Struggle (New York: Oxford University Press, 1988).
 Jessica Korn, The Power of Separation: American Constitutionalism and the Myth of the Legislative Veto (Princeton: Princeton University Press, 1996).

 

Waldron, "Representative Lawmaking," in Political Political Theory, 126.
Jean-Jacques Rousseau, "On Deputies or Representatives," in On the Social Contract, in The Basic Political Writings, trans. Donald A. Cress, 2nd ed. (Indianapolis: Hackett Publishing Company, 2012), 218-220.
Ibid., 174.
John Stuart Mill, "Of the Proper Functions of Representative Bodies," in Considerations on Representative Government, in The Collected Works of John Stuart Mill, vol. 19, ed. John M. Robson (Toronto: University of Toronto Press, London: Routledge and Kegan Paul, 1977).
Recently, for example, there was South Africa under apartheid. Also, many medieval legislatures composed of the different estates were tricameral. Charles T Goodsell, "The Architecture of Parliaments: Legislative Houses and Political Culture," British Journal of Political Science, vol. 18, no 3 (1988): 293, 300; Robert Howard Lord, "The Parliaments of the Middle Ages and the Early Modern Period," The Catholic Historical Review, vol. 16, no. 2 (1930): 135.
Louis Massicotte, "Legislative Unicameralism: A Global Survey and a Few Case Studies," The Journal of Legislative Studies, vol. 7, no. 1 (2010), 151-170; Chris Barker, "Unicameralism," in The SAGE Encyclopedia of Political Behavior, ed. Fathali M. Moghaddam (Thousand Oaks, CA: SAGE Publications, 2017), 859-860.
Jeremy Bentham, Letter to His Fellow-Citizens of France, on Houses of Peers and Senates (London: Robert Heward, 1830), §1-3.
Centinel, No. 1 (Oct. 5, 1787), in The Anti-Federalist Papers and the Constitutional Convention Debates, ed. Ralph Ketchum (New York: Signet Classics, 2003), 231.
Ibid.
See, e.g., Benjamin Rush, "Observations on the Government of Pennsylvania" (1777), in The Selected Writings of Benjamin Rush. Edited by Dagobert D. Run (New York: Philosophical Library, 1947), 57-64, 67-69.
See, e.g., Madison, Federalist 62.
John Stuart Mill, "Of a Second Chamber," in Considerations on Representative Government.
Madison, Federalist 63.
Waldron, "Bicameralism and the Separation of Powers," in Political Political Theory, esp. 74-80.
Waldron, borrowing the term from Meg Russell, "Reform of the House of Lords: Lessons for Bicameralism," in Restraining Elective Dictatorship, ed. Aroney et al., 119, at p. 127, in "Bicameralism and the Separation of Powers," in Political Political Theory, 78-79.
See, e.g., Montesquieu, The Spirit of the Laws, bk. 11, ch. 6.
In Botswana, the House of Chiefs is now officially elected, though in practice heredity plays a role. Arend Lijphart, Patterns of Democracy: Government Forms and Performance in Thirty-Six Countries, 2nd ed. (New Haven: Yale University Press, 2012), 190.
Jeremy Waldron, "Bicameralism and the Separation of Powers," in Political Political Theory, 81-85.
Madison, Federalist 62.
Madison, Federalist 52.
Madison, Federalist 52-53.
Madison, Federalist 53.
Madison, Federalist 54.
Madison, Federalist 62; Amendment XVII, U.S. Constitution.
Madison, Federalist 62.
Ibid.
Ibid.
Ibid.
Ibid.
Tocqueville, Democracy in America, 201.
E.g., Sara Brandes Crook and John R. Hibbing, "A Not-so-distant Mirror," American Political Science Review, vol. 91, no. 4 (1997): 845-853.
Wendy J. Schiller and Charles Stewart III, "The 100th Anniversary of the 17th Amendment: A Promise Unfulfilled?" Issues in Governance Studies, Vol. 59 (May 2013), 1.
Jeremy Waldron, "Bicameralism and the Separation of Powers," in Political Political Theory, 78-80.
Ibid., 75-78.
Baker v. Carr (1962) and Reynolds v. Sims (1964), excerpts in Gillman, Graber, and Whittington, 509-516, 581-586.
Hanna Pitkin, The Concept of Representation (Berkeley: University of California Press, 1967), 8-9
Ibid., 209, 221-222, 232.
Ibid., 11-12, 43, 104, 226-227.
Edmund Burke, "Speech to the Electors of Bristol," (Nov. 3, 1774), in Selected Works of Edmund Burke, vol. 4, Miscellaneous Writings (http://oll.libertyfund.org/titles/burke-select-works-of-edmund-burke-vol-4).
Pitkin, 211.
Ibid.
Ibid., 219-221.
Jane Mansbridge, "Should Blacks Represent Blacks and Women Represent Women? A Contingent 'Yes,'" The Journal of Politics, Vol. 61, No. 3 (Aug., 1999): 628-657.
Storing, quoting Federal Farmer XII, "The Small Republic," in What the Anti-Federalists Were For, 17.
Storing, 17.
Ibid., 17-20.
Pitkin, 83, 89.
Mansbridge, 628, 641-648; see also Storing, 17-18.
Roger H. Davidson, Frances E. Lee, Walter J. Oleszek, and Eric Schickler, Congress and Its Members, 16th ed. (Thousand Oaks, CA: CQ Press, 2018), 219.
A representative example is George Packer, "The Empty Chamber," The New Yorker (Aug. 9, 2010).
Davidson and Oleszek et al., "Leaders and Parties in Congress," Congress and Its Members, 16th ed., 139-141.
Ibid., 142-162; Davidson and Oleszek et al., "Committees: Workshops of Congress," Congress and Its Members, 16th ed., 186-199.
Davidson and Oleszek et al., "Leaders and Parties in Congress," Congress and Its Members, 16th ed., 163.
Davidson and Oleszek et al., "Congressional Rules and Procedures," Congress and Its Members, 16th ed., 246.
Ibid., 220, 226.
Ibid., 222, 228.
Richard F. Fenno, Jr., Introduction, Congressmen in Committees (Boston: Little, Brown and Company, 1973), xiii-xvii.
Davidson and Oleszek et al., "Committees: Workshops of Congress," Congress and Its Members, 16th ed., 203-206.
Davidson and Oleszek et al., "Committees: Workshops of Congress," Congress and Its Members, 16th ed.
Ibid., 203-205; Joseph M. Bessette, The Mild Voice of Reason: Deliberative Democracy and American National Government (Chicago: University of Chicago Press, 1994), 156-157.
Bessette, 156-157.
Davidson and Oleszek et al., "Committees: Workshops of Congress," Congress and Its Members, 16th ed., 205.
Bessette, 159.
Ibid., 158.
Davidson and Oleszek et al., "Committees: Workshops of Congress," Congress and Its Members, 16th ed., 206.
Ibid., Bessette, 160.
Davidson and Oleszek et al., "Congressional Rules and Procedures," Congress and Its Members, 16th ed., 228.
Ibid., 233-234.
Ibid., 246-247.
Ibid., 245-247, 252-257.
Article I, Section 5, U.S. Constitution.
Thomas Jefferson, A Manual of Parliamentary Practice for the Use of the Senate of the United States [1801] (Washington, DC: Government Printing Office, 1993), section 17.9
Ezra Klein, "Let's Talk: The Move to Reform the Filibuster," The New Yorker (Jan. 28, 2013).
Gregory Koger, "Filibustering and Parties in the Modern Senate," in Congress Reconsidered, 11th edition, eds. Lawrence C. Dodd and Bruce I. Oppenheimer (Thousand Oaks, CA; CQ Press, 2017), 312.
Matthew J. Franck, "Don't Eliminate the Filibuster—Restore and Reform It," Public Discourse (Jan. 25, 2016).
Ibid.
Koger, 312.
Ibid.
Ibid., 314-315.
Ibid., 313, 315.
Ibid., 314-315.
Specifically, senators are now more likely to travel to and from Washington every week, and the Senate's workload is now much heavier than in the past. Koger, 314.
Franck, "Don't Eliminate the Filibuster."
Davidson and Oleszek et al., "Congressional Rules and Procedures," Congress and Its Members, 16th ed., 252.
Ibid.
Ibid.
Ibid., 255.
Ibid, 255-256.
Franck, "Don't Eliminate the Filibuster."
Madison, Federalist 63.
Franck, "Don't Eliminate the Filibuster."
Davidson and Oleszek et al., "Congressional Rules and Procedures," Congress and Its Members, 16th ed., 257.
Robert J. Spitzer, The Presidential Veto: Touchstone of the American Presidency (Albany, NY: State University of New York Press, 1988), 19-20.
Ibid., 18.
Alexander Hamilton, Federalist 73.
Spitzer, 16.
Ibid.
Alexander Hamilton, Federalist 73.
Spitzer, 19, 20.
Ibid.
Gillman, Graber, and Whittington, 741.
Immigration and Naturalization Service v. Chadha (1983), in Gillman, Graber, and Whittington, 742-747.