The Functions of Congress:
Representation All Politics Is Local
'Our man in Washington'- or parochialism is a characteristic of US politics which makes it very different to the UK. It leads to high levels of incumbency
Localism is in the Constitution which states that they must be residents of the state they represent, so this gives them a good understanding of what ‘the folks back home’ are saying. A number of states go further by insisting — through the ‘locality rule’ — that House members reside in the congressional district that they represent. Typical House or Senate members do not just reside in the state or district; they will have been born, raised and educated and will have worked there. House members are especially careful about constituents’ views because they have to face the electors every two years.
How do members of Congress fulfil their representative function?
■ voting on legislation on the floor of the chamber
■ membership of standing committees of particular interest to their constituents
■ lobbying executive departments and agencies on relevant policies
■ performing constituency casework, helping constituents with all kinds of federal matters such as student loans, passport and visa issues, and receipt of federal benefits
■ trying to gain money and projects to benefit their states or districts (so-called pork barrel politics)
Just as in Parliament representation’ can be used in different ways.
How legislators represent their constituents
Who the legislators are and whether they are ‘representative’ ie look like or resemble their constituents in terms of gender, ethnicity, religion, age and class. This is called the resemblance model of representation When considering the composition of
Congress is not very representative of America as a whole. Women are still significantly under-represented in Congress, and Congress is also whiter, older, more professional and more Christian than the nation as a whole.
Does it matter?
The first reason might be simple justice. Fair representation in government and politics is a key democratic value in a representative democracy.
And second, that it produces better government. Academic studies have shown, for example, that women in government are much more likely to raise and tackle issues concerning civil rights and liberties, education, health and the workplace than are men.
Third is that it encourages trust in the political institutions and might go some way to making society more peaceful and harmonious.- also encourage participation and voting.
How well does Congress fulfill its function of- Link Representation ?
The legislative process in six stages:
1 Introduction
2 Committee stage
3 Timetabling
4 Floor debate and vote on passage
5 Conference committee (optional)
6 Presidential action
Although only the president has the formal power of veto, at each of the seven stages there is the potential to block a bill. This is an important part of the explanation as to why so few bills are ultimately passed.
The positive view of this complex legislative process is that it means the passage of legislation entails detailed scrutiny by experts, and requires a broad and sustained consensus, compromise and usually bipartisan support. Consequently, legislation will be thoroughly examined and should represent the most accurate reflection of the nation's collective wishes. This contrasts favourably with the UK government's control of Parliament, where legislation can be pushed through the House of Commons with token scrutiny and the support of a quiescent majority based, in the case of the Labour government of 2005-10 for example, on 35% of the vote.
The negative view is that the multiple blocking points means legislation can be halted by a few key individuals, especially committee chairs, who may be acting for any number of motives unconnected with the greater good of the public. In particular, it may allow wealthy campaign donors to exercise disproportionate influence through the obstruction of politicians they sponsor, which contributes to wider public cynicism about the role of money in Congress. The increasingly routine use of the filibuster in the Senate means that 41 senators, potentially representing less than a quarter of the population, can block what many might see as important legislation. Fundamentally, it is a system strongly biased in favour of the status quo; significant change may be difficult or impossible to bring about, or emerge in a final form so diluted as to be ineffectual.
Liberals and conservatives will disagree over the effectiveness of laws that are passed. Furthermore, conservatives may support the current complex legislative process because it makes it difficult to bring about change and can be used to stop the federal government from imposing new requirements on United States citizens and the states. Many Acts of Congress restrict states' ability to control their own affairs, causing conflict between federal and state government. It has often been conservatives who have objected to federal laws — such as the Voting Rights Act or the Affordable Care Act — because they undermine federalism. On the other hand, liberals may prefer a more efficient process in order to increase their chances of developing socially progressive legislation. Much depends on the nature of party control, however. Democrats who want the president to have greater power to make policy, arguing that the filibuster has been misused by the Senate during the Obama presidency, might be the same Democrats who strongly support the use of the filibuster to prevent the more conservative elements of President Trump's legislative agenda from coming to fruition. Only 3% of the bill introduced in to Congress are sent to the president.
Oversight
'Oversight' is the general term for Congress's monitoring of the activity of federal departments and agencies, and its scrutiny of presidential nominations and treaties by the Senate. Oversight is exercised through the standing committees, and the select committees as and when they are created.
The separation of powers and high levels of checks and balances in the Constitution put Congress in a strong position to provide checks on the executive branch in particular. Oversight of the executive branch occurs when Congress scrutinises or limits its actions.
a major part of the oversight process comes from the committees created by Congress. They can check the executive in a number of ways.
· Most committees are policy-based and conduct oversight based on their policy expertise. Typically they investigate a department and hold hearings for executive members.
· The House Committee on Oversight and Reform has the sole role of scrutinising the executive. In the years before the 2016 election, committee chair Jason Chaffetz used the committee to investigate Hillary Clinton's use of a private email account for her work as Secretary of State.
· Congress can create temporary committees to provide oversight if an event of concern arises. Congress created the House Select Committee on Benghazi in 2014, after the US ambassador to Libya was killed there.
There are a number of factors that should, in theory, make oversight more effective than in a parliamentary system such as the UK's. Traditionally, US party discipline is weak, and congressional careers are based around the permanent standing committees rather than promotion to the executive. However, although there have been high-profile exceptions, such as the investigations into Watergate and Iran Contra (both some time ago), the reality is that oversight is not always effectively carried out. More recently, as partisan loyalties have strengthened, they have acted to undermine oversight. When the presidency and Congress were controlled by the same party, as they were by Republicans 2002-06, oversight declined and Congress was accused of being asleep on the job. Since the Republicans took over the House in 2011, the Oversight Committee under the chairmanship of Darrell Issa has vigorously scrutinised the administration on a variety of issues such as the 'Fast and Furious' operation and the IRS-Tea Party affair. However, it has been seen by many as being more preoccupied with inflicting political damage on the president than carrying out an objective investigation.
The motivation of members of Congress is also a factor. Like all politicians, members of Congress are driven in large part by a desire to be re-elected, and oversight offers them little by way of benefits either to themselves or their constituents. Nor does it improve their chances of re-election. Some members, such as Darrell Issa, will seek to make a name for themselves as zealous pursuers of executive incompetence but they are relatively few in number.
As a rule congressional oversight of the executive is only really effective when Congress is not controlled by the president’s party. Almost all modern-day examples of the Senate’s rejection of presidential nominations, whether to the executive or judicial branches, have come when the president’s party has not controlled the Senate.
From 2016 to 2018, Trump had a majority in both the House and Senate. This changed when Democrats took control of the House from 2018 to 2020. Despite significant concerns about Trump's presidency, the Republican Congress conducted very few investigations. However, just a few months after the Democrats won the House in the mid-term elections, fourteen committees began looking into over fifty issues related to Trump's time in office. These investigations included topics like communications between Trump and Russian President Vladimir Putin, White House security clearances, Trump’s finances, his emergency powers for building a wall, family separations for asylum seekers, and appointments at the Environmental Protection Agency involving big corporations. The most important investigations led to hearings that resulted in the House impeaching Trump.
2020 Two examples:
Case study CNN Congress Russia investigations
Case Study Trump's Taxes
Unlike all recent presidents Trump did not reveal his tax record when he was elected. After the Democrats gained control of the House of Representatives committees began oversight investigations in to Trumps finances and subpoenaed his tax records - Trump fought this in the courts. The Supreme Court decided that while in principle Congress had the right to subpoena the president's finances they had not refined their request narrowly enough and so returned the case to the lower courts (to be decided sometime in 2021) but they did decided that the President could be subpoenaed by the New York prosecutors instigating his possible obstruction of justice. The cases were Trump v Mazars (returned to lower courts) and Trump v Vance (New York)
Case study Subpoena of Steve Bannon 2021
How effective is Congress at checking presidential power?
Power without Persuasion: Ways around Congress
The effectiveness of congressional checks may be limited. Congress may be restricted by the extent of presidential power. Congress may be unable to provide checks on the president where the president makes use of certain presidential powers. The theory of the `imperial presidency' suggests that the president has a number of tools to bypass these checks. For example, by using executive orders directing the executive branch to carry out a policy in a certain way, the president can effectively create new policies without passing legislation through Congress. Congress has criticised President Obama for his many executive orders on gun control, immigration and federal pay. President Trump was criticised for the high number of executive orders he issued in his first weeks in office, making it difficult for Congress to examine the implications of each one.
There are also several factors that influence the relationship between the president and Congress, such as the policy area itself. The extent to which these checks are effective changes a result of changing political circumstances. In other words, the power to vote against presidential proposals is more likely to be used if the president or policy is unpopular.
In addition, if the president and Congress are of the same party, given the increasingly partisan nature of Congress, oversight might be limited. In 2017 Devin Nunes, Chair of the House Intelligence Committee charged with investigating alleged Russian involvement in the US elections, was criticised for his lack of independence from Trump. Nunes traveled to the White House to view security documents rather than having these documents open to scrutiny by the whole committee. He drew criticism from both Democrats and Republicans with Senator John McCain saying, `You've got to have a bipartisan approach to an issue such as this if you want to be credible.' Congress is supposed to act as a watchdog on the executive branch, but can go from attack dog to lap dog, depending on which party is in control.
President Biden has faced significant challenges in getting his key policies approved, even with a majority in both the House and Senate during his first two years. When legislation has passed, like the Inflation Reduction Act in 2022, it often involved major compromises. This Act emerged after Biden’s original Build Back Better plan failed to secure enough support in Congress. Even the Inflation Reduction Act includes compromises that Biden did not favor, such as provisions allowing oil and gas companies to keep extracting energy that produces carbon dioxide.
More evidence of Democrat partisanship. After the 2018 mid-term elections, the House of Representatives saw a high level of party unity. Democrats voted in line with their party 95% of the time.
In recent years, federal shutdowns have become more frequent and last longer due to Congress's failure to pass budget bills. The longest shutdowns in U.S. history have all happened since the 1990s, typically when the president was faced with a Congress that had a majority from the opposing party in at least one chamber.
In Congress, oversight comes in many forms including:
Hearings and investigations conducted by standing or special congressional committees.
Consulting with or getting reports directly from the president.
Giving its advice and consent for certain high-level presidential nominations and for treaties.
Impeachment proceedings conducted in the House and tried in the Senate.
House and Senate proceedings under the 25th Amendment should the president become disabled or the office of the vice president become vacant.
Senators and representatives serving on presidentially appointed commissions.
Special studies conducted by congressional committees and support agencies such as the Congressional Budget Office, the General Accountability Office, the Office of Technology Assessment, and the Congressional Research Service.
‘Necessary and Proper’
While the Constitution does not formally grant Congress the authority to oversee the actions of the executive branch, oversight is clearly implied in the many enumerated powers of Congress. The power of congressional oversight is reinforced by the “necessary and proper” clause (Article I, Section 8, Clause 18) of the Constitution, which grants Congress the power
“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.”
The necessary and proper clause further implies that Congress has the power to investigate the actions of the executive branch. It would be impossible for Congress to apply its oversight powers without knowing whether federal programs are being administered properly and within their budgets and whether executive branch officials are obeying the law and complying with the legislative intent of the laws.
The U.S. Supreme Court has confirmed the investigative powers of Congress, subject to constitutional safeguards for civil liberties. In the 1927 case McGrain v. Daugherty, the court found that, in investigating actions taken by the Department of Justice, Congress had constitutionally considered a subject “on which legislation could be had or would be materially aided by the information which the investigation was calculated to elicit.”
Two famous examples of oversight
In the late 1960s, televised hearings of the Senate Foreign Relations Committee on the so-called Pentagon Papers solidified public opposition to continued U.S. participation in the Vietnam War, hastening the end of the conflict.
Less than a year after details of the 1973 Watergate scandal were exposed, the House Judiciary Committee's impeachment proceedings against President Richard Nixon resulted in his resignation from office.
Congress' limits on the Supreme Court
The ultimate power Congress holds over the Supreme Court is to overturn a decision. Using an amendment to the Constitution, Congress can reverse or amend a court ruling. When Congress and the states lowered the voting age to 18 in the 26th amendment of 1971, it effectively overturned the Mitchell v Oregon 1970 ruling, which allowed states to retain the age of 21 as the voting age for state elections if they wished to. However, this restriction on the Court is limited by the difficulty of amending the Constitution. The vast majority of Supreme Court rulings are not subject to an amendment effort; those that are, usually fail.
The other key aspect of the relationship between Congress and the Supreme Court is the Senate's role in ratifying presidential nominations. This is a contentious area, but the Senate cannot
check the Court as a whole, nor does it have control over a justice. The Senate's role is limited to conducting hearings and then voting on a nominee. Once that person becomes a Justice, there is no threat of removal from the Senate.
Congress has two other powers in relation to the Supreme Court, neither of which has any impact on the Court as a whole on a year-to-year basis.
· Individual Justices can be impeached and removed by Congress. The last such attempt to remove a Justice was in 1804, when Justice Samuel Chase was impeached by the House but acquitted by the Senate.
· The Constitution gives Congress the authority to determine the total number of Justices on the Court. The has been settled at nine since the Civil War. Congress could increase this number to allow a president to appoint new members of the Court and establish a majority, but this has neither been used or threatened since the Roosevelt presidency.