CONGRESS
I.
Introduction


II.
Congress versus Parliament

III.
During the 1970s party polarization was very much the exception to the rule.
Some scholars insist that the “disappearing center” in Congress reflects partisan and ideological
divisions among average Americans, while other scholars seem equally sure that we are instead
witnessing a “disconnect” between a still nonideological and politically centrist mass public and
its representatives on Capitol Hill.
Comparison with British Parliament
o
Parliamentary candidates are selected by their parties.

Become a candidate by persuading party to place name on the ballot

Voters choose between national parties, not between multiple candidates within a
single party.

Members of Parliament select prime minister and other leaders.

Party members vote together on most issues.

Renomination depends on remaining loyal to party.

Principal work is debate over national issues.

Members have very little actual power, very low pay, and few staff resources.
o
Congressional candidates run in a primary election, with little party control over their
nomination.

Vote is for the candidate, not the party.

Result is a body of independent representatives of districts or states.

Members do not choose the chief executive; voters (indirectly) elect president.

Power is decentralized, and members are independent.

Party discipline is limited, not enduring.

Members’ principal work is representation and action.

Members have a great deal of power, high pay, and significant staff resources.
The Evolution of Congress


Intent of the Framers
o
To oppose the concentration of power in a single institution
o
To balance large and small states: Bicameralism
o
Expected Congress to be the dominant institution
Competing values shape congressional action: Centralization versus decentralization.
o
Centralization

Allows Congress to act quickly and decisively

Requires strong central leadership, restrictions on debate, little committee
interference
o
Decentralization

Allows for the protection of individual members and their constituencies

Requires weak leadership, rules allowing for delay, and much committee activity
o
General trend has been toward decentralization, especially since mid-twentieth century.

Trend may not have been inevitable; decentralization has not occurred in state
legislatures.

Changing organization of the House may have facilitated decentralization.

House wants the institution and its members to be powerful.

Large size (435 members) makes it difficult for House to be powerful
without investing authority in small leadership group, but . . .
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
IV.
. . . if leadership group has too much power, then individual members
will not have power.
The evolution of the Senate
o
Escaped many of the tensions encountered by the House

Smaller chamber

In 1800s, balanced between slave and free states

Size precluded need for a Rules Committee

Previous to 1913, senators were elected by the state legislature, which caused
them to focus on jobs and contributions for their states.
o
Major struggle in the Senate about how its members should be chosen; resolved with
Seventeenth Amendment (1913)
o
Filibuster another major issue: Restricted by Rule 22 (1917), which allows a vote of
cloture
Who Is in Congress? (THEME A: WHO GETS TO CONGRESS)

The beliefs and interests of individual members of Congress can affect policy.
A.
GENDER AND RACE
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


B.
INCUMBENCY
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


C.
The House has become less male and less white.
Senate has been slower to change.
Members of color—who often come from safe districts and have higher rates of
reelection—may advance to leadership positions more quickly than women due to their
greater seniority.
Members of color became chairpersons of several important committees when Democrats
regained majority party status in 2006.
Membership in Congress became a career: Low turnover by 1950s.
Elections of 1992 and 1994 brought many new members to the House.
o
Redistricting after 1990 census put incumbents in new districts they couldn’t
carry.
o
Anti-incumbency attitude of voters
o
Republican victory in 1994, partially due to the South’s shift to the Republican
Party.
Incumbents still have great electoral advantage.
o
Most House districts safe, not marginal
o
Senators are less secure as incumbents. However, over half of Senate incumbents
won with over 60 percent or more of the vote in over half the elections since
1980; in 2008, nearly two-thirds of Senate incumbents won with 60 percent or
more of the vote.
Voters may support incumbents for several reasons.
o
More media coverage of incumbents
o
Incumbents have greater name recognition owing to franking, travel to the
district, news coverage.
o
Members secure policies and programs for voters.
PARTY


Democrats were beneficiaries of incumbency, 1933–2007: Controlled both houses in
twenty-six Congresses, at least one house in twenty-nine congresses.
Gap between votes and seats: Republican vote is higher than number of seats won.
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o


V.
Argument that Democratic state legislatures redraw district lines to favor
Democratic candidates, although evidence has failed to corroborate this
relationship.
o
Republicans run best in high-turnout districts, Democrats in low-turnout ones.
o
Incumbent advantage increasing (now benefiting both parties)
Electoral convulsions do periodically alter membership, as in 1994.
o
Voters opposed incumbents due to budget deficits, various policies, legislativeexecutive bickering, scandal.
o
Other factors were 1990 redistricting and southern shift to voting Republican.
o
In 2006, Democrats regained control of both houses of Congress. Voters were
reacting to an unpopular president, blaming Republican leadership in Congress
for leading the nation in the wrong direction.
Conservative coalition of southern Democrats and Republicans now has less influence.
o
Many southern Democrats have now been replaced by Republicans.
o
Remaining Southern Democrats are as liberal as other Democrats.
o
Result: Greater partisanship (especially in the House) and greater party unity in
voting, no matter which party is in charge
Representation and Polarization (THEME B: DOES CONGRESS REPRESENT
CONSTITUENTS’ OPINIONS?)


Member behavior is not obvious.
Members may be devoted to their constituents, or act in accordance with their own beliefs,
pressure groups, or congressional leaders.
A.
REPRESENTATIONAL VIEW

B.
ORGANIZATIONAL VIEW

C.
Representational View: Members vote to please their constituents in order to secure reelection.
o
Applies when constituents have a clear view and the legislator’s vote is likely to
attract attention
o
Correlations found in roll-call votes and constituency opinion for civil rights and
social welfare legislation, but not foreign policy
o
Cannot predict that members from marginal districts will adhere to this
philosophy or that members from safe districts will not be independent
o
Even if a member votes against constituent preferences, he or she can win
reelection in other ways.
Organizational view: When constituency interests are not vitally at stake, members
primarily respond to cues from colleagues.
o
Party is the principal cue, with shared ideological ties causing each member to
look to specific members for guidance.
o
Party members of the committee sponsoring the legislation are especially
influential.
ATTITUDINAL VIEW

Attitudinal view: The member’s ideology determines his or her vote.
o
House members are ideologically more similar to the “average voter” than are
senators.
o
Senate is less in tune with public opinion, more likely to represent different bases
of support in each state.
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

VI.
1950s–early1960s: Conservative institution dominated by southern
senators

Mid-1960s–late 1970s: Rise of liberal senators and
increasing decentralization

1980–present: Rise of ideologically based conservative Republicans
A polarized Congress
o
Members are increasingly divided by political ideology.

A generation ago, the “liberal” faction included Republicans, and the
“conservative” faction included Democrats.

Since 1998, Congress has been polarized along ideological and partisan
lines.

Attitudinal explanations of how Congress votes have increased in
importance.

Organizational explanation is of decreasing importance.
o
Polarization among members on the basis of political beliefs greater than that of
voters

More likely to challenge, investigate, or denounce each other

Less likely to negotiate over legislation or to reach compromise
settlements
The Organization of Congress: Parties and Interest (THEME C: CONGRESSIONAL
ORGANIZATION AND PROCEDURES)
A.
PARTY ORGANIZATIONS

The Democrats and Republicans in the House and the Senate are organized by party
leaders, who in turn are elected by the full party membership within the House and
Senate.
1.
THE SENATE

2.
Party organization of the Senate
o
President pro tempore presides; this is the member with most seniority in
majority party (a largely honorific office).
o
Leaders are the majority leader and the minority leader, elected by their
respective party members.

Majority leader schedules Senate business, usually in
consultation with minority leader.

Majority leader who is skilled at political bargaining may
acquire substantial influence over the substance of Senate
business as well.
o
Party whips: Keep leaders informed, round up votes, count noses
o
Each party has a policy committee: Schedules Senate business, sets
priorities for bills
o
Committee assignments are handled by a group of senators, each for their
own party.

Democratic Steering Committee

Republican Committee on Committees

Assignments are especially important for freshmen.

Assignments emphasize ideological and regional balance.

Other factors: Popularity, effectiveness on television, favors
owed
THE HOUSE OF REPRESENTATIVES

Party structure in the House: House rules give leadership more power.
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o

B.
PARTY VOTING
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


C.
Speaker of the House is leader of majority party and presides over
House.

Decides who to recognize to speak on the floor
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Rules on germaneness of motions
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Assigns bills to committees, subject to some rules

Influences which bills are brought up for a vote

Appoints members of special and select committees

Has some informal powers
o
Majority leader and minority leader: Leaders on the floor
o
Party whip organizations
o
Committee assignments and legislative schedule are set by each party

Democrats: Steering and policy committees

Republicans divide tasks:

Committee for committee assignments

Policy Committee to schedule legislation
o
Democratic and Republican congressional campaign committees
The strength of party structures
o
Loose measure of the strength of party structure is the ability of leaders
to get members to vote together to determine party rules and
organization.
o
Tested in 104th Congress, when Gingrich with party support for reforms
and controversial committee assignments
o
Senate contrasts with the House

Senate has changed through changes in norms, rather than
change in rules.

Senate now less party centered and less leader oriented; more
hospitable to freshmen, more heavily staffed, and more
subcommittee oriented.
Measure party polarization in voting by votes in which a majority of Democrats and
Republicans oppose each other
Party voting and cohesion was more evident in 1990s than from 1960s through 1980s.
Today, splits often reflect deep ideological differences between parties or party leaders.
o
In the past, splits were a product of party discipline.
o
Focus was then on winning elections, dispensing patronage, keeping power.
If voters are usually in the center on political issues, why is there a deep division between
the two parties?
o
Congressional districts are drawn to give an advantage to one party or another.

General elections are no longer competitive; favored party usually wins.

Primary election to pick candidate is the only election that counts; the
people who vote in primaries are usually more ideologically motivated.
o
As voters follow positions of congressional leaders, voters may also now be more
partisan.
o
The old seniority rule whereby committee chairs went to senior committee
members has been altered. Since the 107th Congress (2001–2002), chair
selection reflects members’ support of key party positions on issues.
o
Cues are given by and taken from fellow party members. It is important to note
that in the 110th Congress (2007–2008), the chair of every committee with one
exception went to the senior committee member.
CAUCUSES
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



Associations of members of Congress created to advocate a political ideology or a
regional or economic interest
Gained leadership role in the 1970s when congressional power became
more decentralized
Although Republicans were reportedly going to abolish caucuses when they assumed
control of the House in 1995, there were 290 caucuses in 2006.
Influence of caucuses is debatable.
VII. The Organization of Congress: Committees



Legislative committees are most important organizational feature of Congress.
o
Consider bills or legislative proposals
o
Maintain oversight of executive agencies
o
Conduct investigations
Types of committees
o
Standing committees: Basically permanent bodies with specified
legislative responsibilities.
o
Select committees: Groups appointed for a limited purpose and limited duration.
o
Joint committees: Those on which both representatives and senators serve.
o
Conference committee: A joint committee appointed to resolve differences in Senate and
House versions of the same piece of legislation before final passage.
Committee practices
o
Majority party has majority of seats on the committees and names the chair.
o
Assignments

House members usually serve on two standing committees or one exclusive
committee.

Senators serve on two “major” committees and one “minor” committee.
o
Chairs are elected.

Usually the most senior member of the committee is elected by the majority
party.

Seniority has been under attack in recent decades in both parties.
o
Subcommittee “bill of rights” of 1970s changed several traditions.

House committee chairs are elected by secret ballot in party caucus.

No House member or Senator may chair more than one committee.

All House committees with more than twenty members are to have at least four
subcommittees.

Committees in both houses gained larger staffs; also House members gained
more personal staffers.

House and Senate committee meetings were to be open to the public, unless
members voted to close them.
o
Decentralizing reforms made the House more inefficient, and committee chairs
consequently utilized controversial practices to gain control (for example, proxy votes).
o
In 1995, House Republicans implemented changes, such as giving chairmen the ability to
select staff members, banning proxy voting, and imposing term limits on leadership
positions.
o
In 1995, Senate Republicans also imposed term limits on all committee chairmen and
required committee members to select chairmen by secret ballot.
o
Certain committees tend to attract particular types of legislators.

Policy-oriented members are attracted to finance or foreign policy committees.

Constituency-oriented members are attracted to small business or veterans’
affairs committees.
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VIII. The Organization of Congress: Staffs and Specialized Offices
A.
TASKS OF STAFF MEMBERS



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B.
STAFF AGENCIES
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
IX.
Constituency service is a major task of members’ staff.
o
Approximately one-third of the members’ staff work in the district.
o
Almost all members have at least one full-time district office.
Legislative functions of staff include devising proposals, negotiating agreements,
organizing hearings, meeting with lobbyists and administrators.
Members’ staff consider themselves advocates of their employers—entrepreneurial
function (sometimes very independent).
Members of Congress can no longer keep up with increased legislative work and so must
rely on staff.
Results of a larger member staff:
o
more legislative work in the chamber; and
o
more individualistic Congress—less collegial, less deliberative because members
interact through their staffs, who become their negotiators.
Work for Congress as a whole, providing specialized knowledge equivalent to the
president’s.
Major staff agencies
o
Congressional Research Service (CRS)
o
General Accounting Office (GAO)
o
Office of Technology Assessment (OTA), abolished in 1995
o
Congressional Budget Office (CBO)
How a Bill Becomes Law

Bills travel through Congress at different speeds.
o
Bills to spend money or to tax or regulate businesses move slowly.
o
Bills with a clear, appealing idea move fast, especially if they do not require large
expenditures.
o
Complexity of legislative process helps a bill’s opponents.
A.
INTRODUCING A BILL



Bill must be introduced by a member of Congress.
o
Public bill pertains to public affairs generally.
o
Private bill pertains to a particular individual; now rare and usually delegated to
administrative agencies or courts.
o
Pending legislation does not carry over from one Congress to another; it must be
reintroduced.
Congress initiates most legislation.
Resolutions
o
Simple resolution: Passed by one house and affects that house, not signed by the
president; does not have the force of law
o
Concurrent resolution: Passed by both houses and affects both, not signed by the
president; does not have the force of law
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o
B.
STUDY BY COMMITTEES
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C.
Bill is referred to a committee for consideration by either Speaker or presiding officer of
the Senate.
o
Chamber rules define each committee’s jurisdiction, but sometimes the Speaker
has to make a choice.
o
Speaker’s decisions can be appealed to the full House.
Revenue bills must originate in the House.
Most bills die in committee.
Multiple referrals permitted until 1995; new rule allows only sequential referrals.
After hearings and mark-up sessions, the committee reports a bill out to the full House or
Senate.
o
If bill is not reported out, the House can use the “discharge petition.”
o
If bill is not reported out, the Senate can pass a discharge motion (rarely used).
o
These are routinely unsuccessful.
Bill must be placed on a calendar to come for a vote before either house.
House Rules Committee sets the rules for consideration.
o
Closed rule: Sets time limit on debate and restricts amendments.
o
Open rule: Permits amendments from the floor.
o
Restrictive rule: Permits only some amendments.
o
Use of closed and restrictive rules increased from the 1970s to the 1990s.
o
Rules can be bypassed in the House: Move to suspend rules; discharge petition;
Calendar Wednesday (rarely done)
In the Senate, the majority leader must negotiate the interests of individual senators.
FLOOR DEBATE

Floor debate—the House
o
o
o
o

Committee of the Whole: Procedural device for expediting House consideration
of bills; it cannot pass bills.
Committee sponsor of bill organizes the discussion.
No riders (nongermane amendments) allowed.
House usually passes the sponsoring committee’s version of the bill.
Floor debate—the Senate
o
o
o
o
D.
Joint resolution

Essentially a law: Passed by both houses, signed by president

If used to propose constitutional amendment, two-thirds vote is required
in both houses, but the president’s signature is unnecessary.
No rule limiting germaneness of amendments, so riders are common.
Committee hearing process can be bypassed by a senator with a rider, or if bill
already passed in House.
Debate can be limited only by a cloture vote.

Three-fifths of Senate must vote in favor of ending filibuster.

Both filibusters and successful cloture votes becoming more common.

Easier now to stage filibuster

Roll calls are replacing long speeches.

Filibuster can be curtailed by double-tracking: disputed bill is
shelved temporarily, so Senate can continue other business.
Effectively, neither party controls the Senate unless it has at least sixty votes;
otherwise, the Senate must act as a bipartisan majority.
METHODS OF VOTING
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




E.
To investigate voting behavior, one must know how a legislator voted on key
amendments as well as on the bill itself.
Procedures for voting in the House:
o
voice vote;
o
division (standing) vote;
o
teller vote; and
o
roll-call vote (now electronic).
Senate voting is the same except no teller vote and no electronic counters.
Differences in Senate and House versions of a bill
o
If minor, last house to act merely sends bill to the other house, which accepts the
changes.
o
If major, a conference committee is appointed.

Decisions are approved by a majority of each delegation.

Conference report often slightly favors the Senate version of the bill.

Conference reports back to each house.

Report can only be accepted or rejected, not amended.

Report accepted, usually, as the alternative is often to have no bill.
Bill, in final form, goes to the president.
o
President may sign it.
o
If president vetoes it, it returns to house of origin.
o
Both houses must support the bill with a two-thirds vote in order to override the
president’s veto.
LEGISLATIVE PRODUCTIVITY

Recent studies of Congressional productivity following 9/11 have yielded some
interesting results:
o
Congress legislative output over the past two decades has declined. How do you
measure legislative productivity? Comparisons were made to legislative output in
the 1930s, when Congress funded many programs to combat the Great
Depression. A similar period of heightened legislative productivity occurred
during the 1960’s when Congress attempted to address the problems of low
incomes with the War on Poverty.
o
How do you evaluate legislation output or a decline in overall legislative
activity? Scholars debate the meaning of this reduced activity, with some taking
the position that Congress is in decline. Others argue that Congress is a broken
branch of government.
o
Does reduced legislative activity reflect the fact that during much of the 1980s
and 1990s America had a divided government? Most scholars tend to believe that
divided government only reduces the passage of far-reaching and costly
legislation.
o
A fourth area of concern involves earmarks, which are expenditures for specific
projects or tax exemptions to specific groups. Earmarks have tripled since 1994;
in 2006, thirteen thousand earmarks cost $64 billion. This form of congressional
activity has come under broad attack following the scandals involving the
lobbyist Jack Abramoff and Congressman Randy “Duke” Cunningham.
Earmarks persist because constituents demand such support from each member
of Congress.
o
The fifth area of concern reflects a post 9/11 report that expressed concern over
the potential impact of a terrorist attack on Congress. Such an attack would cause
chaos in the legislature, because it would take months to hold special elections to
replace members of the House. Senate members could be rapidly replaced by
temporary appointments by governors.
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F.
REFORMING CONGRESS (THEME D: ETHICS AND CONGRESS)



Regulate franking
Place Congress under the law
o
Congressional Accountability Act of 1995—Congress obliged itself to obey
eleven major employment laws.
o
Created the independent Office of Compliance to deal with implementation,
avoiding excessive executive power over Congress
Trim pork
o
Bills containing money to provide for local projects such as bridges, dams, and
so on
o
May be misallocation of tax dollars for trivial benefits
o
However, the main cause of the deficit is entitlement programs, not pork.
o
Most categories of pork have had decreased funding in the past ten to fifteen
years.
o
Identifying pork is a judgment call, as some district funding is necessary.
o
Pork facilitates compromise among members, who are also supposed to be
district advocates.
IMPORTANT TERMS
bicameral legislature
A lawmaking body made up of two chambers or parts.
caucus
An association of Congressional members created to advance a
political ideology or a regional, ethnic, or economic interest.
closed rule
An order from the House Rules Committee that sets a time limit on
debate; forbids a bill from being amended on the floor.
cloture rule
A rule used by the Senate to end or limit debate.
concurrent resolution
An expression of opinion without the force of law that requires the
approval of both the House and the Senate, but not the president.
conference committees
Joint committees appointed to resolve differences in the Senate and
House versions of the same bill.
conservative coalition
An alliance between Republicans and conservative Democrats.
discharge petition
A device by which any member of the House, after a committee has
had a bill for 30 days, may petition to have it brought to the floor.
division vote
A congressional voting procedure in which members stand and
are counted.
divided government
One party controls the White House and another party controls one
or both houses of Congress.
double tracking
A procedure to keep the Senate going during a filibuster in which
the disputed bill is shelved temporarily so that the Senate can get on
with other business.
earmarks
“Hidden” congressional provisions that direct the federal
government to fund specific projects or that exempt specific persons
or groups from paying specific federal taxes or fees.
filibuster
An attempt to defeat a bill in the Senate by talking indefinitely, thus
preventing the Senate from taking action on the bill.
franking privilege
The ability of members to mail letters to their constituents free of
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charge by substituting their facsimile signature for postage.
joint committees
Committees on which both senators and representatives serve.
joint resolution
A formal expression of congressional opinion that must be approved
by both houses of Congress and by the president; constitutional
amendments need not be signed by the president.
majority leader
The legislative leader elected by party members holding the majority
of seats in the House or the Senate.
marginal districts
Political districts in which candidates elected to the House of
Representatives win in close elections, typically by less than 55
percent of the vote.
minority leader
The legislative leader elected by party members holding a minority
of seats in the House or the Senate.
open rule
An order from the House Rules Committee that permits a bill to be
amended on the floor.
party polarization
A vote in which a majority of Democratic legislators oppose a
majority of Republican legislators.
party vote
There are two measures of such voting. By the stricter measure, a
party vote occurs when 90 percent or more of the Democrats in
either house of Congress vote together against 90 percent or more of
the Republicans. A looser measure counts as a party vote any case
where at least 50 percent of the Democrats vote together against at
least 50 percent of the Republicans.
pork-barrel legislation
Legislation that gives tangible benefits to constituents in several
districts or states in the hope of winning their votes in return.
quorum
The minimum number of members who must be present for business
to be conducted in Congress.
restrictive rule
An order from the House Rules Committee that permits certain
kinds of amendments but not others to be made into a bill on the
floor.
riders
Amendments on matters unrelated to a bill that are added to an
important bill so that they will “ride” to passage through the
Congress. When a bill has many riders, it is called a Christmas-tree
bill.
roll-call vote
A congressional voting procedure that consists of members
answering “yea” or “nay” to their names.
safe districts
Districts in which incumbents win by margins of 55 percent or more.
select committees
Congressional committees appointed for a limited time and purpose.
simple resolution
An expression of opinion, either in the House or Senate, to settle
procedural matters in either body.
speaker
The presiding officer of the House of Representatives and the leader
of his party in the House.
standing committees
Permanently established legislative committees that consider and are
responsible for legislation within a certain subject area.
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teller vote
A congressional voting procedure in which members pass between
two tellers, the “yeas” first and the “nays” second.
unified government
The same party controls the White House and both houses
of Congress.
veto
Literally, “I forbid”: It refers to the power of a president to
disapprove a bill; it may be overridden by a two-thirds vote of each
house of Congress.
voice vote
A congressional voting procedure in which members shout “yea” in
approval or “nay” in disapproval, permitting members to vote
quickly or anonymously on bills.
whip
A senator or representative who helps the party leader stay informed
about what party members are thinking.
The Presidency
I.
II.
Introduction

The American presidency is a unique office, with elements of great strength and profound
weakness built into it by its constitutional origins.
Presidents and Prime Ministers (THEME A: THE POWER OF THE PRESIDENCY
VERSUS OTHER INSTITUTIONS)


Characteristics of parliaments
o
Chief executive is the prime minister, chosen by the legislature.
o
Parliamentary system, with a prime minister as the chief executive, is more common than
is a federal system with elected president as chief executive.
o
Prime minister chooses the cabinet ministers from among the members of parliament.
o
Prime minister remains in power as long as his or her party or coalition maintains a
majority in the legislature.
Differences between the chief executives in presidential and parliamentary systems
1.
PRESIDENTS ARE OFTEN OUTSIDERS

2.
PRESIDENTS CHOOSE CABINET MEMBERS FROM OUTSIDE CONGRESS

3.
Presidents may be outsiders; prime ministers are always insiders, chosen by the
members of the majority party in parliament.
Incumbent members of Congress cannot simultaneously serve in a president’s
cabinet; members of parliament are eligible to serve in the prime minister’s
cabinet, and ministers are almost always chosen from their ranks.
PRESIDENTS HAVE NO GUARANTEED MAJORITY IN THE LEGISLATURE

Presidents have no guaranteed majority in the legislature; prime ministers always
have a majority.
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
4.
PRESIDENTS AND PRIME MINISTERS AT WAR

III.
Presidents and the Congress often work at cross purposes:
o
Even when one party controls both branches
o
A consequence of separation of powers, which fosters conflict between
the branches
o
Only Franklin Roosevelt and Johnson had (briefly) constructive relations
with Congress
Presidents and prime ministers at war highlight differences in political position.
o
George W. Bush’s decision to fight invited debate in Congress even
though his party controlled both houses; however, no meaningful
resistance in the British Parliament when Tony Blair announced his
decision to fight.
o
Bush’s decision to fight was undeterred by low opinion ratings, but when
public opinion turned against Blair, he announced he would resign from
office.
Divided Government



Occurs when one party controls the White House and another controls one or both houses of
Congress
o
Has occurred in nineteen of the last 29 elections
o
When Barack Obama became president in 2009, it was only the fourth time since 1969
that the same party controlled the White House and Congress to create a unified
government. In 2011, things changed to create a partially divided government.
A recurring phenomenon in American government
Many people think divided government produces gridlock.
A.
DOES GRIDLOCK MATTER?



B.
Divided government does about as well as unified government in passing laws,
conducting investigations, and ratifying treaties.
Parties themselves are ideologically diverse, leading to policy disagreements.
Unified government actually requires the same ideological wing of the party to control
both branches of government.
IS POLICY GRIDLOCK BAD?



Everybody has an interest in some degree of policy gridlock.
Divided government may result from intentional split-ticket voting practices.
Necessary consequence of representative democracy
HOW WE COMPARE

Most modern democracies feature one of the three systems:
o
Parliamentary systems. Prime ministers are selected by legislative majority and
can be removed by same.
o
Presidential systems. President and legislators are separately elected and serve
fixed terms.
o
Semipresidential systems. Prime ministers are selected and subject to removal by
parliamentary majority as well as a president who is separately elected.
Copyright © Cengage Learning. All rights reserved.
IV.

In 1950 about 60% of democratic nations had parliamentary systems and 30% had
semipresidential systems, and 10% had presidential systems. Today two-thirds have
either semipresidential or presidential systems.

The rate at which a party in power pursues the policies it offered to voters in its platform
is generally lower in presidential systems and the incidence of policy-switching is more
than four times as common in presidential systems as it is in parliamentary systems.
The Powers of the President

Formal powers found in Article II
o
President can exercise some powers unilaterally, whereas others require formal
legislative approval.
o
Potential for power found in ambiguous clauses of the Constitution: for example, power
as commander in chief, duty to “take care that laws be faithfully executed” (executive
power)
o
Greatest source of presidential power lies in politics and public opinion.
o
Increase in congressional grants of broad statutory authority, especially since the 1930s
o
Expectation of presidential leadership from the public
1.
POWERS OF THE PRESIDENT ALONE









2.
POWERS THE PRESIDENT SHARES WITH THE SENATE


3.
Make treaties
Appoint ambassadors, judges, and high officials
POWERS THE PRESIDENT SHARES WITH CONGRESS AS A WHOLE

V.
Serve as commander in chief of the armed forces
Commission officers of the armed forces
Grant reprieves and pardons for federal offenses
(except impeachment)
Convene Congress in special sessions
Receive ambassadors
Take care that the laws be faithfully executed
Wield the “executive power”
Appoint officials to lesser offices
Approve legislation
The Evolution of the Presidency
A.
CONCERNS OF THE FOUNDERS





B.
Delegates feared both anarchy and monarchy.
Fear of the military power of the president, who could overpower states
Fear of presidential corruption by Senate because Senate and president shared treatymaking power
Fear of presidential bribery to ensure reelection
Principal concern was to balance power of legislative and executive branches.
THE ELECTORAL COLLEGE


Each state to devise its own method of selecting electors.
Electors would meet in their state capital to vote for president and vice president.
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

C.
THE PRESIDENT’S TERM OF OFFICE




D.

Jackson believed in a strong and independent president.
Vigorous use of veto for constitutional and policy reasons; none of the vetoes were
overridden
Demonstrated what a popular president could do
THE REEMERGENCE OF CONGRESS





VI.
Office was legitimated by men active in independence and Founding politics.
Minimal activism of early government mitigated the fear of the presidency.
Appointed people of stature in the community (rule of “fitness”)
Relations with Congress were reserved: Few vetoes; no advice from Congress to
president.
THE JACKSONIANS


F.
Precedent of George Washington and the historical tradition of two terms
Twenty-second Amendment in 1951 limited presidents to two terms.
Another problem was establishing the legitimacy of the office.
Founders also provided for the orderly transfer of power.
THE FIRST PRESIDENTS




E.
If no candidate won a majority, the House would decide the election.
Electoral College ultimately worked differently than expected, because Founders did not
anticipate the role of political parties.
With brief exceptions, the next century was a period of congressional dominance.
Intensely divided public opinion—partisanship, slavery, sectionalism
Only Lincoln expanded presidential power.
o
Asserted “implied powers” and the express authorization of the commander in
chief
o
Justified actions by emergency conditions created by Civil War
Following Lincoln, Congress again became the dominant branch until the New Deal,
except for the T. Roosevelt and Wilson administrations.
Even today, the popular perception of the president as the center of government
contradicts the reality: Congress is often the policy leader.
The Power to Persuade

The president can use the office’s national constituency and ceremonial duties to enlarge powers.
A.
THE THREE AUDIENCES

Three audiences for president’s persuasive powers:
o
Fellow politicians and leaders in Washington, D.C.; his reputation is very
important
o
Party activists and officials outside Washington
o
Various public audiences with divergent views and interests

On campaign trail, president speaks boldly about what he will
accomplish.

In office, president speaks quietly about problems that he will overcome.

Presidents make fewer impromptu remarks and rely more on prepared
speeches (taking advantage of the bully pulpit).
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B.
POPULARITY AND INFLUENCE





C.
Presidents try to transform popularity into congressional support for their programs.
Presidential coattails have had a declining effect for years and are minimal in their
influence today.
Congressional elections are relatively insulated from presidential elections.
o
Weak party loyalty and organization
o
Congressional members’ own strong relations with their constituents
Still, to avoid the political risks of opposing a popular president, Congress will pass more
of that individual’s legislative proposals.
Popularity is affected by factors beyond anyone’s control; for example, consider Bush’s
approval ratings following the 9/11 attacks.
THE DECLINE IN POPULARITY


Popularity highest immediately after an election (honeymoon period)
Declines by midterm, with president’s party usually losing congressional seats in the
midterm elections
VII. The Power to Say No
A.
B.
VETO




EXECUTIVE PRIVILEGE




C.
Confidential communications between president and advisers need not be disclosed.
Justification:
o
Separation of powers
o
Need for candid advice
United States v. Nixon (1974) rejected claim of absolute executive privilege.
Bill Clinton–Paula Jones episode greatly reduced number of officials with whom
president can speak in confidence.
IMPOUNDMENT OF FUNDS


D.
Veto message sent within ten days of the bill’s passage
Pocket veto (only before Congress adjourns at the end of its second session)
Congress rarely overrides vetoes.
President does not hold line-item veto power.
o
1996 reform permitted enhanced rescissions.
o
Supreme Court ruled this procedure was unconstitutional.
Impoundment of Funds: presidential refusal to spend funds appropriated by Congress.
Nixon impoundments countered by Budget Reform Act of 1974.
o
Requires president to notify Congress of funds he does not intend to spend
o
Congress must agree in forty-five days to delete item.
o
Requires president to notify Congress of delays in spending
o
Congress may pass a resolution refusing the delay and requiring the immediate
release of funds.
SIGNING STATEMENTS


Presidential statement issued at the time the president signs a bill.
Purposes include:
o
To express presidential attitudes about the law
o
To communicate to executive branch how law should be enforced
o
To declare his belief that a portion of the law is unconstitutional
Copyright © Cengage Learning. All rights reserved.


Became common in twentieth century
Viewed by Congress as a type of unconstitutional line-item veto that blocks enforcement
of the law.
Currently allowed by Supreme Court, but Court has not ruled directly on the practice.

VIII. Presidential Character

IX.
Presidential personality shapes the way the White House is organized.
o
Eisenhower: Orderly, military style; delegation of authority to trained specialists
o
Kennedy: Bold, articulate, amusing leader; improviser who bypassed traditional lines of
authority
o
Johnson: Master legislative strategist; tended to micromanage
o
Nixon: Expert in foreign policy; disliked personal confrontation; tried to centralize power
in the White House
o
Ford: Discussion oriented and genial; decision structures not always coherent or
organized
o
Carter: Washington outsider; tended to micromanage
o
Reagan: Set policy priorities and then gave staff wide latitude; leader of public opinion
o
George H. W. Bush: Hands-on manager, with considerable Washington experience
o
Clinton: Good communicator; pursued liberal/centrist policies
o
George W. Bush: Tightly run White House; agenda became dominated by foreign affairs
following the 9/11 attacks
o
Barack Obama: Superb communicator; first African-American elected to the presidency;
came to office amid a global economic crisis; has proposed the largest federal budget in
history, designed to forestall an economic depression; has proposed a comprehensive
health insurance program
The Office of the President (THEME B: THE INSTITUTIONALIZATION OF THE
PRESIDENCY)


President did not have any real staff until 1857.
White House staff has grown enormously.
o
President now has large bureaucracy of assistants he has difficulty controlling.
o
Rule of propinquity: Power is wielded by people who are in the room when a decision is
made.
o
Presidential appointments can be classified in terms of their physical and political
proximity to the president.
A.
THE WHITE HOUSE OFFICE



President’s closest assistants
Three types of structure, often used in combination to compensate for their weaknesses
and to capitalize on their strengths
o
Pyramidal structure: Eisenhower, Nixon, Reagan, George H.W. Bush, Clinton
(late in his administration); most assistants report through hierarchy to chief of
staff, who then reports to president.
o
Circular structure: Carter (early in his administration); cabinet secretaries and
assistants report directly to president
o
Ad hoc structure: Clinton (early in his administration); task forces, committees,
and informal groups deal directly with president
o
Common to mix organizational methods
Staff members typically have worked on the campaign; a few are experts.
Copyright © Cengage Learning. All rights reserved.

B.
THE EXECUTIVE OFFICE OF THE PRESIDENT




C.


President appoints members of agencies that have a quasi-independent status.
“Acting” appointments cause increased legislative-executive tensions.
In general, independent agency heads can be removed only “for cause” and serve fixed
terms.
Executive agency heads serve at the president’s pleasure, though their appointments must
be confirmed by the Senate.
Judges can be removed only by impeachment.
Who Gets Appointed




XI.
The cabinet: Chief executives (secretaries) of the executive branch departments
o
Not explicitly mentioned in Constitution
o
Presidents have many more appointments to make than do prime ministers, due
to competition created by the separation of powers.
o
Presidential control over departments remains uncertain—secretaries become
advocates for their departments.
INDEPENDENT AGENCIES, COMMISSIONS, AND JUDGESHIPS



X.
Composed of agencies that report directly to the president
Appointments must receive Senate confirmation, unlike those of White House staff.
Principal agencies in the Executive Office include:
o
Office of Management and Budget (OMB)
o
Director of National Intelligence (DNI)
o
Council of Economic Advisors (CEA)
o
Office of Personnel Management (OPM)
o
Office of the U.S. Trade Representative
Office of Management and Budget is perhaps the most important agency in the EOP.
o
Assembles the budget
o
Develops reorganization plans
o
Reviews legislative proposals of agencies
o
Has recently become more of a policy advocate
THE CABINET

D.
Always a great deal of jockeying for physical proximity (office closer to the Oval Office)
and access to the president.
President knows few appointees personally.
Most appointees to the cabinet and subcabinet have had federal experience.
o
“In-and-outers” alternate federal government and private-sector jobs.
o
Modern tendency is to place experts, rather than those with political followings, in the
cabinet.
Need to consider politically important groups, regions, and organizations when
making appointments
Rivalry often develops between department heads (who represent expert knowledge) and White
House staff (who are extensions of presidential priorities).
The President’s Program
A.
PUTTING TOGETHER A PROGRAM
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



B.
Resources in developing a program include interest groups, aides and campaign advisers,
federal departments and agencies, and various specialists.
Alternative approaches to policy formulation:
o
Carter and Clinton: Tried to have a policy on everything
o
Reagan: Concentrated on a small number of initiatives and left everything else to
subordinates
Constraints on a president’s program
o
Public and congressional reactions
o
Limited time and attention span of the president
o
Unexpected crises, such as the 9/11 attacks
o
Programs can be changed only marginally, because most resources are already
committed.
o
Public-opinion polls
Presidential approach may be influenced by opinion polling.
o
Trustee model: Do what the public good requires, regardless of popular opinion
o
Delegate model: Do what your constituents want you to do.
ATTEMPTS TO REORGANIZE



Almost every president since 1928 has proposed reorganization.
o
Reorganization: Changing the structure of the staff, departments, and agencies
that are subordinate to the executive.
o
Bush’s reorganization to accommodate the new Department of Homeland
Security is an example of long-standing practice.
Reasons for reorganizing
o
Large number of agencies
o
Easier to change policy through reorganization than by abolishing an old
program or agency
Reorganization outside the White House staff must be congressionally approved.
XII. Presidential Transition (THEME C: PRESIDENTIAL SUCCESSION)

Only fourteen of forty-one presidents have served two full terms.
A.
THE VICE PRESIDENT



B.
Eight vice presidents have succeeded to office on president’s death.
Prior to 2000, only five vice presidents won the presidency in an election without having
first entered the office as a result of the president’s death.
“A rather empty job”
o
Vice president presides over Senate and votes in case of tie.
o
Leadership powers in Senate are weak, especially in times of divided
government.
PROBLEMS OF SUCCESSION


What if president falls ill?
o
Examples: Garfield, Wilson, Eisenhower, Reagan
If vice president steps up, who becomes new vice president?
o
Earliest answer was in the Succession Act (1886), amended in 1947.
o
Today, Twenty-fifth Amendment (1967) establishes procedures.

Allows vice president to serve as acting president if president is disabled

Illness is decided by president, by vice president and cabinet, or by twothirds vote of Congress.
Copyright © Cengage Learning. All rights reserved.



C.
Requires a vice president who ascends to office on death or resignation
of president to name a vice president
New vice president must be confirmed by a majority vote of both houses.
Examples: Vacancies produced by resignations of Agnew (vice
president) and Nixon (president)
IMPEACHMENT




Judges, not presidents, are the most frequent subjects of impeachment.
Indictment by the House, conviction by the Senate
o
Presidential examples: Andrew Johnson, Richard Nixon (preempted by
resignation), Bill Clinton
o
Neither Johnson nor Clinton was convicted by the Senate.
Office of the Independent Counsel was not renewed in 1999 and is generally considered a
casualty of the Clinton impeachment.
Interpretation of constitutional language (“high crime or misdemeanor”) is unclear.
XIII. How Powerful Is the President?



Both the president and the Congress are more constrained today.
Reasons for constraint:
o
Complexity of issues
o
Scrutiny of the media
o
Greater number and power of interest groups
Presidential responses to constraints include:
o
Acting early in the first term (honeymoon period)
o
Establishing a few top priorities
o
Giving power to the White House staff and supervising them carefully
IMPORTANT TERMS
ad hoc structure
Several subordinates, cabinet officers, and committees report directly to the
president on different matters.
bully pulpit
The president’s use of his prestige and visibility to guide or enthuse the
American public.
cabinet
The heads of the 15 executive branch departments of the federal government.
circular structure
Several of the president’s assistants report directly to him.
divided government
One party controls the White House and another party controls one or both
houses of Congress.
Electoral College
The people chosen to cast each state’s votes in a presidential election. Each
state can cast one electoral vote for each senator and representative it has. The
District of Columbia has three electoral votes, even though it cannot elect a
representative or senator.
gridlock
The inability of the government to act because rival parties control different
parts of the government.
impeachment
Charges against a president approved by a majority of the House of
Representatives.
legislative veto
The authority of Congress to block a presidential action after it has taken
place. The Supreme Court has held that Congress does not have this power.
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line-item veto
An executive’s ability to block a particular provision in a bill passed by
the legislature.
pocket veto
A bill fails to become law because the president did not sign it within 10 days
before Congress adjourns.
pyramid structure
A president’s subordinates report to him through a clear chain of command
headed by a chief of staff.
signing statement
A presidential document that reveals what the president thinks of a new law
and how it ought to be enforced.
unified government
The same party controls the White House and both houses of Congress.
veto message
A message from the president to Congress stating that he will not sign a bill it
has passed. Must be produced within 10 days of the bill’s passage.
The Bureaucracy
I.
II.
Introduction

A bureaucracy is a large, complex organization composed of appointed officials.

By complex, we mean that authority is divided among several managers; no one person is
able to make all the decisions.
Distinctiveness of the American Bureaucracy (THEME A: SIZE AND POWER OF THE
BUREAUCRACY)


III
Distinctiveness of the American bureaucracy
o
President and Congress share political authority over the bureaucracy.
o
Federal agencies share functions with related state and local government agencies.
o
Adversary culture leads to closer scrutiny and makes court challenges more likely.
Scope of bureaucracy
o
Little public ownership of industry in the United States
o
High degree of regulation of private industries in the United States
Proxy Government





Proxy government: Federally funded programs that are staffed and administered by state
and local governments and private groups.
Government by proxy affects large federal programs, including Social Security and
Medicare.
Military support and emergency response programs are also supplemented by federal
partners.
Disadvantages of government by proxy
o
No accountability about how funds are used
o
No incentive for Congress to increase oversight
Advantages of government by proxy:
o
Increased flexibility
o
Greater utilization of skills found in private and nonprofit sectors
o
Defends constitutional principle of federalism
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o
IV.
The Growth of the Bureaucracy

Constitution made little provision for administrative system, so it provides little guidance.
o
Early debate in the Senate over whether the president should have sole removal power
over cabinet appointments; president won that challenge
o
Congress retained right to appropriate money, investigate the administration, and shape
laws that the president would execute during his administration.
A.
THE APPOINTMENT OF OFFICIALS




B.

C.
Officials affect how laws are interpreted, the tone and effectiveness of the administration,
party strength.
Patronage in nineteenth and early twentieth centuries rewarded supporters, induced
congressional support, built party organizations.
Civil War—a watershed in bureaucratic growth; it showed the administrative weakness
of federal government and increased demands for civil service reform.
Post–Civil War period saw industrialization and the emergence of a national economy;
power of national government to regulate interstate commerce was necessary, even
though it was controversial.
A SERVICE ROLE

1861–1901: Role of new agencies was to serve, not regulate.
o
Constitutional values of limited government, states’ rights, and fragmented
power
o
Laissez-faire philosophy
o
Supreme Court held that, under the Constitution, an executive agency could not
make rules on its own; it could only apply standards enacted by Congress.
Wars led to reduced restrictions on administrators and an enduring increase in executivebranch personnel.
A CHANGE IN ROLE






V.
Many average citizens receive costly federal government services without ever
directly interacting with civil servants.
A change in role: Role of agencies was to deal with economic and social problems.
Depression and World War II led to government activism.
Supreme Court upheld laws that granted discretion to administrative agencies.
Heavy use of income taxes supported war effort and a large bureaucracy.
Public believes in continuing military preparedness and various social programs.
9/11 attacks could also affect bureaucracy as profoundly as World War II and the
Depression.
o
New cabinet agency (Department of Homeland Security) was created.
o
Centralization of intelligence-gathering activities under single director
o
General Accounting Office issued a report that was critical of DHS for
continuing management problems in controlling this diverse array of
counterterrorism agencies.
The Federal Bureaucracy Today (THEME B: CONTROL OF THE BUREAUCRACY)

Direct and indirect growth
o
Modest increase in number of government employees
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o


A.
Significant indirect increase in number of employees through use of private contractors
and state and local government employees
o
Other indicators of size:

Number of federal civilian employees decreased between 1990 and 2007; drop
across all agencies except Department of Justice which grew by over a third

The Federal Bureau of Prisons (BOP) grew by 90 percent between 1990 and
2009 but the prisoner populations grew by 355 percent.
Growth in discretionary authority—the ability to choose courses of action and to make policies
not set out in the statutory law
o
Delegation of undefined authority by Congress greatly increased.
o
Primary areas of delegation:

paying subsidies to groups and organizations;

transferring money from national to state and local governments (grant-in-aid
programs); and

devising and enforcing regulations, especially for the economy.
Factors explaining the behavior of officials
o
Recruitment and reward systems
o
Personal and political attributes
o
Nature of work
o
Constraints imposed on agencies by various outside actors
RECRUITMENT AND RETENTION


1.
Competitive service: Bureaucrats compete for jobs through Office of Personnel
Management (OPM).
o
Appointment by merit based on written exam or through selection criteria
o
Competitive service system has become more decentralized, less reliant on OPM
referral.

OPM system is cumbersome and not geared to department needs.

Agencies need professionals who cannot be evaluated by examination.

Agencies face pressure to diversify federal bureaucracy personnel.
Excepted service: Bureaucrats are appointed by agencies, typically in a nonpartisan
fashion.
o
About 3 percent of excepted employees are appointed by the president on
grounds other than merit.

Presidential appointments authorized by statute

“Schedule C” jobs involve a “confidential or policy-determining
character”

Noncareer executive assignments involved in advocacy or policymaking
o
Pendleton Act (1883) changed the basis of government jobs from patronage to
merit.
o
Merit system protects president from pressure and protects patronage appointees
from removal by new presidents.
THE BUDDY SYSTEM




Name-request job: Filled by a person whom an agency has already identified for
middle- and upper-level jobs
Job description may be tailored to person.
Circumvents the usual search process
Encourages issue networks based on shared policy views
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2.
FIRING A BUREAUCRAT


3.
THE AGENCY’S POINT OF VIEW



B.




Most bureaucrats try to carry out policies, even those they disagree with.
But bureaucrats do have obstructive powers; Whistleblower Protection Act (1989) was
enacted to protect bureaucrats from retaliation for reporting waste, fraud, or abuse.
Most civil servants have highly structured jobs that make their personal attitudes
irrelevant.
Professionals’ loosely structured roles may cause their work to be more influenced by
personal attitudes.
o
Professional values help explain how power is used.
o
Example: lawyers versus economists at the Federal Trade Commission
CULTURE AND CAREERS


E.
Includes social class, education, political beliefs
Beliefs about politics and government may differ from those of the public, because
political appointees and career bureaucrats are unrepresentative of the average American
and because they have a supposed occupational self-interest.
Surveys of bureaucrats
o
Career bureaucrats more likely to hold liberal views, trust government, and vote
for Democrats.
o
Political appointees usually reflect same political beliefs as president appointing
them.
o
Bureaucrats do not take extreme positions.
Correlation was found between the type of agency and the attitudes of the employees.
o
Activist agency bureaucrats tend to be more liberal (FTC, EPA, and FDA).
o
Traditional agency bureaucrats tend to be less liberal (Agriculture, Commerce,
and Treasury).
o
Bureaucrats’ policy views reflect the type of work that they do.
DO BUREAUCRATS SABOTAGE THEIR POLITICAL BOSSES?


D
Agencies are dominated by lifetime bureaucrats who have worked for no other
agency.
Long-term service assures continuity and expertise.
Long-term service also gives subordinates power over new bosses: they can work
behind their boss’s back through sabotage, withholding information, and so on.
PERSONAL ATTRIBUTES


C.
Most bureaucrats cannot be easily fired, although there are informal methods of
discipline.
Senior Executive Service (SES) was established in 1978 to provide the president
and cabinet with more control in personnel decisions but was not very effective.
Each agency has its own culture, an informal understanding among employees about how
they are supposed to act.
Strong agency culture motivates employees but makes agencies resistant to change.
CONSTRAINTS

Much greater on government agencies than on private bureaucracies
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
VI.
Hiring, firing, pay, and other procedures are established by law, not by the market.
o
General constraints

Administrative Procedure Act (1946)

Freedom of Information Act (1966)

National Environmental Policy Act (1969)

Privacy Act (1974)

Open Meeting Law (1976)

Several agencies are often assigned to a single policy.
o
Effects of constraints

Government moves slowly.

Government sometimes acts inconsistently.

Easier to block action than take action

Reluctant decision making by lower-ranking employees.

Red tape
Why So Many Constraints

A.
Constraints come from citizens: Agencies try to respond to citizen demands for openness,
honesty, fairness, and so on.
AGENCY ALLIES



Agencies often seek alliances with congressional committees and interest groups.
o
Iron triangle: A tight, mutually advantageous alliance.
o
Can be politically powerful (for example, Small Business Administration)
Far less common today; politics has become too complicated
o
More interest groups, more congressional subcommittees, and more competing
forces
o
Courts have also granted more access.
Issue networks: Groups that regularly debate government policy on certain issues.
o
Contentious—split along partisan, ideological, economic lines
o
New presidents often recruit from networks.
VII. Congressional Oversight

A.
Forms of congressional supervision
o
Congress creates agencies; statutory design can influence agency behavior.
o
Congress authorizes funds for programs.
o
Congressional appropriations provide funds for agencies to spend on their programs.
o
Control of the bureaucracy creates an “invitation to struggle” between the legislative and
executive branches.

The legislature lacks capacity to legislate on all matters— delegates this function
to agencies who exercise “rule making” function.

Executive seeks to control agency actions as an extension of its functional need
to faithfully execute the law.
THE APPROPRIATIONS COMMITTEE AND LEGISLATIVE COMMITTEES

Appropriations Committee may be the most powerful of all the
congressional committees.
o
Most expenditure recommendations are approved by House.
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o
o
o

B.
THE LEGISLATIVE VETO



C.
Tends to recommend an amount lower than the agency requested
Has power to influence an agency’s policies by “marking up” an agency’s budget
It is, however, becoming less powerful

Trust funds operate outside the regular government budget and are not
controlled by the appropriations committees.

Annual authorizations allow the legislative committees greater oversight.

Budget deficits have necessitated cuts.
Informal congressional controls over agencies
o
Individual members of Congress can seek privileges for constituents.
o
Congressional committees may seek committee clearance, which is the right to
pass on certain agency decisions.
Legislative Veto: a requirement that an executive decision must lie before Congress for a
specified period before it takes effect.
Declared unconstitutional by Supreme Court in Chadha (1983)
Debate about the legislative veto continues.
CONGRESSIONAL INVESTIGATIONS


Power inferred from the congressional power to legislate
Means for checking agency discretion and also for authorizing agency actions
independent of presidential preferences
VIII. Bureaucratic “Pathologies” (THEME C: BUREAUCRATIC “PATHOLOGIES”)



IX.
Five major complaints about the bureaucracy:
o
red tape—complex and sometimes conflicting rules (see the “Politically Speaking” box
“Red Tape”);
o
conflict—agencies work at cross purposes;
o
duplication—two or more agencies seem to do the same thing;
o
imperialism—tendency of agencies to grow, irrespective of programs’ benefits and costs;
and
o
waste—spending more than is necessary to buy some product or service.
Each complaint has logical origins in the constitutional order and policymaking process.
Also, some exaggerations and unusual circumstances generate difficulties.
o
Wide majorities have somewhat favorable impressions of diverse federal government
agencies.

For decades surveys have found that despite complaints about “the bureaucracy,”
most Americans have judged each federal agency to be fair and useful.

Explains why government agencies are rarely reduced in size or budget. Any
given agency, even the much criticized Federal Emergency Management Agency
(FEMA) in the wake of its failed response to Hurricanes Katrina and Rita, still
has many supporters.
Reforming the Bureaucracy

Numerous attempts to make the bureaucracy work better for less money
o
Eleven reform attempts in the 1900s
o
Prior reforms stressed increasing centralized control on behalf of efficiency,
accountability, and consistency.
o
National Performance Review (NPR) in 1993 was designed to reinvent government,
calling for a new kind of organizational culture.
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o
o


Less centralized management

More employee initiatives

Fewer detailed rules, more customer satisfaction
President George W. Bush built on to the Government Performance Results Act using the
Performance Assessment Activity Tool (PART); its goal was to link management reform
to the budget process.
President Obama echoed a similar theme harkening back to Clinton-Gore NPR, though
not given priority in the President’s program.
Bureaucratic reform is always difficult to accomplish.
o
Most rules and red tape are due to struggles between president and Congress or to
agencies’ efforts to avoid alienating influential voters.
o
Periods of divided government worsen matters, especially in implementing policy.

Presidents of one party seek to increase political control
(executive micromanagement).

Congresses of another party respond by increasing investigations and rules
(legislative micromanagement).
IMPORTANT TERMS
appropriation
A legislative grant of money to finance a government program or agency.
authorization legislation
Legislative permission to begin or continue a government program
or agency.
bureaucracy
A large, complex organization composed of appointed officials.
committee clearance
The ability of a congressional committee to review and approve certain
agency decisions in advance and without passing a law.
competitive service
The government offices to which people are appointed on the basis of
merit as ascertained by a written exam or by applying certain
selection criteria.
discretionary authority
The extent to which appointed bureaucrats can choose courses of action
and make policies that are not spelled out in advance by laws.
government by proxy
Washington pays state and local governments and private groups to staff
and administer federal programs.
iron triangle
A close relationship between an agency, a congressional committee, and
an interest group.
issue network
A network of people in Washington D.C.-based interest groups, on
congressional staffs, in universities, and think tanks, and in the mass
media, who regularly discuss and advocate public policies.
laissez-faire
An economic theory that government should not regulate or interfere
with commerce.
legislative veto
The authority of Congress to block a presidential action after it has taken
place. The Supreme Court has held that Congress does not have
this power.
name-request job
A job that is filled by a person whom an agency has already identified.
red tape
Complex bureaucratic rules and procedures that must be followed to get
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something done.
Funds for government programs collected and spent outside the regular
government budget.
trust funds
The Judiciary
II.
Introduction




II.
Judicial Review


III.
Alexander Hamilton saw the courts as being “the least dangerous” branch of government
because it could not “command the sword” as the president, nor “command the purse strings”
like Congress.
By the middle of the 19th century, the Supreme Court had begun to declare many federal and
scores of state laws to be unconstitutional.
Necessary and proper clause, elastic clause, abortion laws and so on.
Courts have become not the least dangerous, but the most powerful.
Only in the United States do judges play so large a role in policy making
o
Judicial review: the right of the federal courts to rule on the constitutionality of laws and
executive actions

Chief judicial weapon in the checks and balances system

Since 1789, the Supreme Court has declared over 160 federal laws
unconstitutional
o
Few other countries have such a power

In Britain, Parliament is supreme.

Judicial review is effective in only a few other countries with stable federal
systems that have history of judicial independence (for example, Australia,
Canada, Germany, India).
Debate is over how the Constitution should be interpreted.
o
Judicial restraint approach (strict-constructionist): judges are bound by wording of
Constitution
o
Activist approach: judges should look to underlying principles of Constitution
o
Not a matter of liberal versus conservative

A judge can be both conservative and activist, or liberal and strict
constructionist.

Today, most activists tend to be liberal; most strict constructionists tend
to be conservative.
The Development of the Federal Courts (THEME A: THE HISTORY OF THE FEDERAL
JUDICIARY)

Founders’ view
o
Most Founders probably expected judicial review but did not expect federal court to play
such a large role in policy making.
o
Traditional view: judges find and apply existing law
o
Activist judges would later respond that judges also make law.
o
Traditional view made it easy for Founders to predict courts would be neutral and passive
in public affairs.
o
Hamilton: Courts are the least dangerous branch; their authority only limits the
legislature.
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o
A.
NATIONAL SUPREMACY AND SLAVERY: 1789 to 1861



B.




Court establishes tradition of deferring to the legislature in economic regulation cases.
Court shifts attention to personal liberties and is active in defining rights.
Failed court-packing plan (FDR); “the switch in time that saved nine”
Warren Court provided a liberal protection of rights and liberties against government
trespass.
THE REVIVAL OF STATE SOVEREIGNTY



IV.
Dominant issues of the period
o
Under what circumstances could the state governments regulate the economy?
o
When could the federal government do so?
Private property held to be protected by the Fourteenth Amendment
Judicial activism was born as the Supreme Court began to assess the constitutionality of
governmental regulation of business or labor.
Supreme Court was supportive of private property, but could not develop a principle
distinguishing between reasonable and unreasonable regulation of business.
The Court interpreted the Fourteenth and Fifteenth Amendments narrowly as applied to
blacks; it upheld segregation and permitted blacks to be excluded from voting in many
states.
GOVERNMENT AND POLITICAL LIBERTY: 1936 TO THE PRESENT




D.
Marbury v. Madison (1803) and McCulloch v. Maryland (1819)
o
Supreme Court could declare a congressional act unconstitutional.
o
Power granted to federal government should be construed broadly
o
Federal law is supreme over state law.
Other cases: interstate commerce clause is placed under the authority of federal law; state
law conflicting with federal law was declared void
Dred Scott v. Sandford (1857): blacks were not, and could not become, free citizens of
the United States; federal law (Missouri Compromise) prohibiting slavery in northern
territories was unconstitutional.
GOVERNMENT AND THE ECONOMY: 1865 TO 1936

C.
But federal judiciary evolved toward judicial activism, shaped by political, economic,
ideological forces of three historical eras.
Beginning in 1992, the Supreme Court began to rule that the states have the right to resist
some federal action.
Reassertion of limits to federal supremacy in cases involving gun control, Indian tribe
lawsuits.
President Obama’s health plan challenged on the grounds that the requirement that all
citizens purchase health insurance is an excessive use of the commerce clause and
therefore unconstitutional.
The Structure of the Federal Courts

Two kinds of federal courts were created by Congress to handle cases that the Supreme Court
does not need to decide.
o
Constitutional courts exercise judicial powers found in Article III

Judges serve during good behavior

Salaries not reduced while in office
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o
A.

Examples: district courts (94), courts of appeals (12)
Legislative courts

Created by Congress for specialized purposes

Judges have fixed terms

Judges can be removed

No salary protection

Example: Court of Military Appeals
SELECTING JUDGES

Judicial behavior
o
Party background has a strong effect on judicial behavior.
o
Other factors also shape court decisions: facts of the case, prior rulings, and legal
arguments.
1.
SENATORIAL COURTESY


2.
THE “LITMUS TEST”







V.
Appointees for federal courts are reviewed by senators from that state, if the
senators are of the president’s party (particularly for U.S. district courts).
Gives heavy weight to preferences of senators from state in which judge will
serve
Litmus test: a test of ideological purity
Presidents seek judicial appointees who share their political ideologies.
Has caused different circuits to come to different rulings about similar cases.
Raises concerns that ideological tests are too dominant; has led to sharp drop in
the percentage of nominees to federal appeals courts who are confirmed
A judicial nominee’s view on abortion is the chief reason for use of a litmus test.
The threat of a filibuster aimed at blocking Senate confirmation has led to a
situation where the nominee must have the support of at least sixty senators to
guarantee that a cloture vote would stop a threatened filibuster. This has led to a
great deal of legislative maneuvering with controversial nominees.
In recent years nominees almost always have been judges in lower courts.
The Jurisdiction of the Federal Courts


Dual court system
o
State court systems, federal court system
o
Federal cases listed in Article III and Eleventh Amendment of Constitution

Federal question cases: involving U.S. Constitution, federal law, treaties

Diversity cases: involving different states, or citizens of different states
o
Some cases can be tried in either federal or state court

Example: if both federal and state laws have been broken (dual sovereignty; the
Rodney King case)

Jurisdiction: each government has right to enact laws and neither can block
prosecution out of sympathy for the accused.
o
Some cases that begin in state courts can be appealed to Supreme Court.
o
Controversies between two state governments can be heard only by Supreme Court.
Route to the Supreme Court
o
Most federal cases begin in district courts

Most are straightforward and do not lead to new public policy

Volume is huge: About 650 district court judges received over 300,000 cases.
o
Supreme Court picks the cases it wants to hear on appeal.
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




VI.
Requires agreement of four justices (or a writ of certiorari) to hear case
Supreme Court generally only agrees to review certain types of cases, involving:

A significant federal or constitutional question

Conflicting decisions by circuit courts

Constitutional interpretation by one of the highest state courts, about
state or federal law
Court may consider seven thousand petitions each year, but only about one
hundred are granted.
Limited number of cases heard results in diversity of constitutional interpretation
among appeals courts.
Increased workload has led to greater influence of law clerks.

Help to decide which cases should be heard under a writ of certiorari

May draft initial opinions for the justices
Getting to Court

Deterrents to the courts acting as democratic institutions
o
Supreme Court rejects all but a few of the applications for certiorari.
o
Costs of appeal are high.

Financial costs, including filing, record, and attorney fees, are high, but may be
lowered for some.

In forma pauperis: plaintiff indigent, with costs paid by government

Indigent defendant in a criminal trial: legal counsel provided by
government at no charge

Payment by interest groups (for example, American Civil Liberties
Union)

Cost in terms of time is also high and cannot be mitigated.
A.
FEE SHIFTING


B.
STANDING


C.
Usually each party must pay its own legal expenses.
The losing defendant pays the plaintiff’s expenses (fee shifting) in certain cases.
Guidelines regarding who is entitled to bring a case
o
There must be a real controversy between adversaries.
o
Personal harm must be demonstrated.
o
Being a taxpayer does not ordinarily constitute entitlement to challenge federal
government action; this requirement is relaxed when the First Amendment is
involved.
Sovereign immunity
o
Government must consent to being sued.
o
By statute, government has given its consent to be sued in cases involving
contract disputes and negligence.
CLASS-ACTION SUITS



Brought on behalf of all similarly situated persons
Number of class-action suits increased, because there were financial incentives to
bringing suit and because Congress was not meeting new concerns.
In 1974, Supreme Court tightened rules on these suits for federal courts, though many
state courts remain accessible.
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
Big class-action suits affect how courts make public policy (such as asbestos, silicone
breast implants).
VII. The Supreme Court in Action (THEME B: THE SUPREME COURT IN ACTION)






Most cases arrive at the Court through a writ of certiorari.
Lawyers then submit briefs: documents that set forth the facts of the case, summarize the lower
court decision, give the argument of that side of the case, and discuss other issues.
Oral arguments by lawyers after briefs submitted
o
Each side has one half-hour.
o
Justices can interrupt with questions.
Since federal government is a party to almost half the cases, the solicitor general frequently
appears before the courts.
o
Solicitor general: federal government’s top trial lawyer
o
Decides what cases the government will appeal from lower courts
o
Approves every case presented to the Supreme Court
A.
Justices may also consider other opinions.
o
Amicus curiae briefs submitted if both parties agree or Supreme Court grants permission.
o
Other influences on the justices include legal periodicals.
Conference procedures
o
Role of chief justice: speaking first, voting last
o
Senior judge on winning side selects opinion writer
o
Four kinds of court opinions

Per curiam: brief and unsigned

Opinion of the court: majority opinion

Concurring opinion: agree with the ruling of the majority opinion, but modify the
supportive reasoning

Dissenting opinion: minority opinion

About two-fifths of decisions are unanimous. In this case the law is clear and no
difficult questions of interpretation exist.

The other three-fifths appear to be two main blocs and one swing vote on today’s
court:

Conservative bloc: Alito, Roberts, Scalia, and Thomas

Liberal bloc: Breyer, Ginsburg, Stevens, and probably Sotomayor

Swing vote: Kennedy
VIII. The Power of the Federal Courts (THEME C: THE POWER OF THE FEDERAL
JUDICIARY)
A.
THE POWER TO MAKE POLICY


The courts make policy:
o
by interpretation of the Constitution or law;
o
by extending the reach of existing law; and
o
by designing remedies that involve judges acting in administrative or legal ways
Measures of power
o
Number of laws declared unconstitutional (over 160)
o
Number of prior cases overturned; not following stare decisis (over 260 cases
since 1810)
o
Extent to which judges will handle cases once left to the legislature (political
questions)
o
Most significant indicator is kinds of remedies imposed; judges often impose
remedies that affect large populations
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o
B.
VIEWS OF JUDICIAL ACTIVISM



C.
Supporters
o
Courts should correct injustices when other branches or state governments refuse
to do so.
o
Courts are the last resort for those without the power or influence to gain new
laws.
Critics
o
Judges lack expertise in designing and managing complex institutions.
o
Initiatives require balancing policy priorities and allocating public revenues.
o
Courts are not accountable, because judges are not elected.
Possible reasons for activism
o
Adversary culture, emphasizing individual rights and suspicion of government
power.
o
Easier to get standing in courts
LEGISLATION AND THE COURTS



IX.
Basis for sweeping orders can come either from the Constitution or from court
interpretation of federal laws.
Laws and the Constitution are filled with vague language, which increase courts’
opportunities to design remedies.
Federal government is increasingly on the defensive in court cases; laws induce court
challenges.
Attitudes of federal judges affect their decisions when the law gives them latitude.
Checks on Judicial Power

Basic restraints on judicial power
o
Judges have no enforcement mechanisms (police force or army); thus, their decisions can
be resisted or ignored (for instance, Bible reading in schools, segregation in schools).
o
Resistance depends on visibility of disobedience.
A.
CONGRESS AND THE COURTS
o
o
o
B.
Confirmation and impeachment proceedings gradually alter composition of courts,
though impeachment is an extraordinary and unusual event.
Changing the number of judges gives president more or fewer appointment opportunities.
Supreme Court decisions can be undone by:

Revising legislation

Amending the Constitution

Altering jurisdiction of the Court

Restricting Court remedies
PUBLIC OPINION AND THE COURTS




Defying public opinion—especially the opinion of the elites—may destroy the legitimacy
of the institution.
Opinion in realigning eras may energize Court.
Public confidence in the Supreme Court since 1966 has varied with popular support for
the government, generally.
No overt attempts to curb judicial activism
o
Activism has increased because government does more, and courts must interpret
the laws.
o
Activist ethos of judges is now more widely accepted.
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IMPORTANT TERMS
activist approach
The view that judges should discern the general principles underlying laws or
the Constitution and apply them to modern circumstances.
amicus curiae
A brief submitted by a “friend of the court.”
brief
A written statement by an attorney that summarizes a case and the laws and
rulings that support it.
class-action suit
A case brought by someone to help both himself or herself and all others who
are similarly situated.
concurring opinion
A signed opinion in which one or more members agree with the majority view
but for different reasons.
constitutional court
A federal court authorized by Article III of the Constitution that keeps judges
in office during good behavior and prevents their salaries from being reduced.
They are the Supreme Court (created by the Constitution) and appellate and
district courts created by Congress.
courts of appeals
Federal courts that hear appeals from district courts; no trials.
dissenting opinion
A signed opinion in which one or more justices disagree with the majority
view.
district court
The lowest federal courts; federal trials can be held only here.
diversity cases
Cases involving citizens of different states who can bring suit in federal
courts.
federal-question
cases
Cases concerning the Constitution, federal laws, or treaties.
fee shifting
A rule that allows a plaintiff to recover costs from the defendant if the
plaintiff wins.
in forma pauperis
A method whereby a poor person can have his or her case heard in federal
court without charge.
judicial restraint
approach
The view that judges should decide cases strictly on the basis of the language
of the laws and the Constitution.
judicial review
The power of courts to declare laws unconstitutional.
legislative courts
Courts created by Congress for specialized purposes whose judges do not
enjoy the protections of Article III of the Constitution.
litmus test
An examination of the political ideology of a nominated judge.
opinion of the Court
A signed opinion of a majority of the Supreme Court.
per curiam opinion
A brief, unsigned court opinion.
plaintiff
The party that initiates a lawsuit.
political question
An issue the Supreme Court will allow the executive and legislative branches
to decide.
remedy
A judicial order enforcing a right or redressing a wrong.
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sovereign immunity
The rule that a citizen cannot sue the government without the government’s
consent.
standing
A legal rule stating who is authorized to start a lawsuit.
stare decisis
”Let the decision stand,” or allowing prior rulings to control the current case.
writ of certiorari
An order by a higher court directing a lower court to send up a case for
review.
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