Volume 11: Congress: The World's Most Dysfunctional Family
535 People You Don't Want to Fight for a TV Camera
"With all this money coming in from both sides, how does anything ever get done?” “It doesn’t. That’s the genius of the system.” – The Distinguished Gentleman
When your approval ratings have been hovering between 10 and 20 percent for nearly a decade, you might want to change things up a bit.
Congress does its best to show off its bad side. Constantly failing to make tough but important decisions. Important pieces of legislation consistently left undone. Arcane processes that the public knows better than to understand. Blaming the other side for everything from the failure of the healthcare system to the weather. When they do manage to pass legislation, it is usually convoluted and hated – the screaming and fear-mongering from the other side make sure of that.
How we got here is a good question – and one that we’ll try to answer. But first, we need to understand what Congress is and what it does.
How do they get elected in the first place?
Once they get there, how do they “organize”?
What does Congress actually do?
How does Congress exercise power?
How do these people get elected in the first place?
OK, let’s start with the basics. There are two Chambers in the US Congress: the House of Representatives (lower Chamber) and the Senate (upper). They are described in the Constitution; you don’t have to look long because it’s right at the beginning, Article I.[1]
The 435 Members of the House of Representatives are up for election every two years. Senators serve 6-year terms, staggered so that equal portions of the Chamber are elected every 2 years. Representatives are divided among the states on the basis of population. This is redone every ten years, via a process called apportionment. Each state has two Senators, no matter its population. This leads to legislators in different states representing different numbers of constituents:
In any system of representative government, some discrepancy is unavoidable. But our system is especially skewed. Increasing the size of the House would generally improve the “fairness,” up to a point.[2] In the Senate, giving each state two Senators was a compromise made in 1787 to ensure smaller states would agree to the Constitution. It worked. But today, rural voters, who live in states with smaller populations, have disproportionate power.
Even though they make laws of national applicability, the Constitution explicitly says that each state is in charge of choosing its own Members. Elections in this country are conducted locally, with only minimal national regulation. For the House, each state decides how to split its territory to elect Representatives; this is “redistricting.” In most states, redistricting is done through a partisan process, meaning a political party in control of the state government can gain a large advantage.
Once they get there, how do they “organize”?
There are two political parties in this country.[3] Therefore, when a new Congress comes in, one party will have a majority of seats in each Chamber. That party is the majority party, the other is the minority party. In the House, the majority party chooses a Speaker, who is the head of the House. The Vice President, who might not be a member of the majority party, serves as President of the Senate. This role is mostly ceremonial, except for breaking ties. In both Chambers, each party chooses a Leader, who heads his or her party delegation.[4] Each party in each Chamber also has a Whip, who assists the Leader in rounding up votes and other duties. Both parties also have various other officers which differ by Chamber and party.
After each bi-annual election, there are a lot of new Congresspersons in both Chambers. It is traditional to refer to the Congress that will be in place for each two-year period as a distinct numbered entity. For example, “the 115th Congress is currently in session until January 2019.” Under the Constitution, each Chamber makes its own rules. Many of the rules are codified in an “Organizing Resolution” or “OR.” Usually, it’s the first thing a new Congress does.[5] In the House, the majority party can include more or less what it wants in the OR. In the Senate, the game is trickier because the OR is generally subject to Unanimous Consent.
Since its founding, almost all of the Senate’s business has been conducted via Unanimous Consent. There are two types of Unanimous Consent. “Simple” Unanimous Consent is used for all sorts of mundane procedures, such as waiving reading of the minutes and naming post offices. But, because the Senate rules are so arcane, when they want to get something done, they need to change the rules via a “Unanimous Consent agreement”. These agreements specify the number and type of amendments that can be offered and how the debate will proceed. But they require unanimity. Any Senator – or more likely a small group – can throw a monkey wrench in the process by blocking a Unanimous Consent agreement. In today’s partisan environment, a determined minority could prevent all Unanimous Consent agreements, greatly slowing all Senate business.
An Aside: Grab bag of weird things about the Senate
Cloture: The process required to move a Senate measure to a vote. For many pieces of business, Cloture requires 60 votes.
Filibuster: A Senator is usually permitted to “hold the floor” as long as he or she is physically able. When one does so for a long period, this is a Filibuster.
Nuclear Option: The Senate’s ability to change its rules to allow Cloture with 50 votes for any actions. This could lead to a procedural halt to all business – a big explosion.
Maiden Speech: Historically, Senators do not speak on the floor until a suitable period had passed. The first speech gets a lot of attention. The UK’s parliament does this too.
Webster Desk: First occupied by the famed orator Daniel Webster, it is still occupied by the Senior Senator from New Hampshire.
One of the major items included in the Organizing Resolution is the makeup of each Chamber’s committees. Each majority party will have a majority of the seats on all of its Chamber’s committees,[6] as well as all of the committee chairmanships. Although their power waxes and wanes over the years, committees are critical to the operation of both Chambers. It is very difficult to move legislation to a final vote without passing through its relevant committee.[7] Most bills are written by committee staff, and the provisions are advanced by the committee “markup” process. Because of their power, members of Congress fight to get onto their preferred committees. Committee chairpersons wield enormous authority to shape legislation. Both Chambers and both parties have different procedures to determine committee membership and pecking order, but seniority is a key factor.
Historically, there have been a surprisingly large number of Organization Resolutions involving high drama.[8] I’ll tell just one story: the Senate’s 2001-2003 session.
Before the 2000 election, Republicans held 54 Senate seats to 46 for the Democrats. In the 2000 election, Republicans lost four Senate seats (along with the popular vote for President). When the Senate began its session on January 3, 2001, it consisted of 50 Democrats and 50 Republicans. The Vice Presidential Inauguration was more than two weeks later, so Democrat Al Gore held the tie-breaking Senate vote. Democrats therefore had de facto 51 to 50 control until January 20th, when the situation would reverse. The Senate would therefore need to be organized and then re-organized, which could only happen with consent of both parties. What emerged was a power-sharing arrangement: the two parties would have equal representation on all committees, unless the partisan makeup of the Senate were to change.
Well, that’s just asking for trouble. In May/June 2001, Senator Jim Jeffords of Vermont left the Republican Party, becoming an independent and caucusing with the Democrats. Under its own terms, the Organizing Resolution power-sharing arrangement ceased to exist. But, the 51 Democrats couldn’t unilaterally pass a new OR, as doing so would require 60 votes. What happened was another compromise: Democrats were acknowledged as the Majority Party in the Chamber and on committees, while Republicans received guarantees as to how the Chamber would be run. This is a different world than we have today: I can’t picture either party being willing to share power, when the only motivation is a functioning Senate.[9]
What does Congress actually do?
So after fundraising, getting themselves elected and organizing, Congress sometimes does things.
Congress is the Legislative branch of the Federal Government. That means that it writes bills and determines which bills become law. The areas in which Congress has power to legislate are specified in Article I of the Constitution:[10]
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States…
To borrow Money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes…
To establish Post Offices and post Roads…
To constitute Tribunals inferior to the supreme Court…
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;</