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Treatise
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To Restore America the
Beautiful Under |
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Chapter Seven_
ACCOUNTABILITY, EFFICIENCY, and CUTS:
For Federal Public Servants
Not Elected by the People,
i.e. Courts, Committees & the Bureaucracy:
An independent judiciary as proposed by the Framers
of
the Constitution … means a Supreme Court that will
enforce the Constitution as written; that will refuse
to amend the Constitution by the arbitrary
exercise of judicial power.
Franklin D. Roosevelt, Fireside Chat
March 9, 1937
Certainly no society can justly call itself
democratic where
as few as five appointed justices, who are beyond the
control of the people and their elected representatives,
can determine the meaning and substance of nearly all
the freedoms that the people possess [James McClellan]
A
network of small complicated rules, minute and
uniform, through which the more original minds
and the most energetic characters cannot
penetrate, to rise above the crowd.
Administrative despotism as
defined
by Alexis de Tocqueville
We
were just worms there
JFK on his six years in the U.S.
House of Representatives
══ INTERACTIVE CONTENTS ══
PART ONE: CURBING COURT USURPATION
PART TWO: TRIBUNATE DUTIES IN THE BUREAUCRACY
PART THREE: PROCEDURAL REFORMS WITHIN CONGRESS
Limiting Dilatory Tactics on the Floor
Scrutinizing Committee Work From the Floor
A. Committee autonomy and parliamentary procedure
B. Political interest on the floor in holding committees accountable
C. Leadership verses headship in revitalizing the assembly
Election of Committee Chairmen
Chapter Seven_
ACCOUNTABILITY, EFFICIENCY, and CUTS:
For Federal Public Servants
Not Elected by the People,
i.e. Courts, Committees & the Bureaucracy:
Twenty two decades of U.S. constitutional history, particularly the last few, have seen buildup of dross in all three branches of government – legislative, executive and judicial. The previous chapter has chronicled an encrustation of the legislative branch with procedural barnacles that greatly reduce seaworthiness for the ship of state. Accretions in the other two branches render the problem even more oppressive.
In the Judicial branch, a massive body of precedent shields what a leading judicial authority, Robert Bork, describes as an “activist, ambitious, and imperialistic” federal court system. According to Judge Bork, the Judiciary has already accomplished a “coup d’etat.”[1] Increasingly we are governed, argues Bork, “not by law or elected representatives, but by unelected, unrepresentative, unaccountable committees of lawyers applying no law other than their own will.”[2] Bork laments that the ideal, “rule of law,” has been reduced to “a phrase that judicial adversaries fling at one another.”[3]
What federal judges have perpetrated is a great political crime, more damaging to this country than the worst felony, treason or assassination committed by any U.S. citizen since P.G.T. Beauregard fired on Ft. Sumter. Benedict Arnold’s earlier and more infamous sin, proved innocuous in comparison with the judicial usurpation since 1963. Adulterous spouse of the sacred document handed down from generation to generation, the unelected and irremovable judicial oligarchy has emerged as a traitor to the letter and an infidel to the spirit of the U.S. Constitution. Let us, “we the people,” move to rehabilitate the courts and thus address one of American history’s greatest crimes. To the extent that the arch-amendment cuts the tentacles of judicial usurpation (theft of power), the reform will weaken the hold whereby the giant squid of postmodernism keeps the body politic in its grip.
The Executive branch endures another kind of captivity. Under the crush of nearly 2 million employees, all drawing salaries at taxpayer expense, the people of the United States labor to pay for a burden compared to which the Founding Fathers of 1776 might have found King George’s officials few and frugal:
“He [George III] has erected a
multitude of new offices,
and sent hither swarms of new officers to harass
our people and eat out their substance.”
Declaration of Independence
Today’s federal bureaus and agencies have ballooned so radically in size, and have also secured expanded administrative powers, to the extent that the federal bureaucracy is a de facto independent power. Administrative discretion, as they term it, has created a regulatory code on a virtual par with statutory law. Congressional oversight has proven incapable of bringing this new legislative sphere – administrative law-making by unelected bureaucrats – back into control. Congress is failing to do its job of overseeing the bureaucracy for three reasons,
- the hamstringing of Congress as described in chapter six,
- meager constitutional means in the Legislative Branch whereby to exercise congressional oversight.
- a cumbersome and undemocratic committee structure within Congress.
The constellation law would redress all three shortcomings – the latter two are subjects of the present chapter (parts two and three).
As great as our Constitution has been over the years, it has not stopped the creeping encroachment of committee oligarchies within the legislative branch, hamstringing the branch of the U.S. government closest to the people. The power vacuum has been filled by the branch most remote from the voters, the Judiciary. Like the proverbial wolf in sheep's clothing, or like a Borgia Pope, despotism has arrived in disguise, wearing the same apparel that long served a holy cause. Thomas Jefferson would not have been surprised:
Experience hath shown that even under the best forms (of government) those entrusted with power have in time, and by slow operations perverted it into tyranny." (Thomas Jefferson, 1779)[4]
PART ONE:
CURBING COURT USURPATION[5]
The original error [was in] establishing a judiciary
independent of the nation, and which, from the citadel of
the law, can turn its guns on those they were meant to
defend, and control and fashion their proceedings to its own
will….It is a misnomer to call a government republican in which
a branch of the supreme power is independent of the nation.
Thomas Jefferson, 1807 & 1821
If the policy of the government, upon vital questions affecting
the whole people, is to be irrevocably fixed by decisions
of the Supreme Court,...the people will have ceased to be
their own rulers, having to that extent practically resigned
the government into the hands of that eminent tribunal.
President Abraham Lincoln, first inaugural address, 1861
Judges cannot change the literal words of the Constitution
or a statute, so they make law by changing the meaning
of those words. The obvious danger is that if the law
means whatever judges say it means, judges control
the law, run the country and define the culture.
US Senators Orrin Hatch & Jim Talent (2004)[6]
Stealing Power
In defining the Legislative Branch, the U.S. Constitution stipulates at the very outset:
All legislative Powers herein
granted shall be
vested in a Congress of the United States,
which shall consist of a Senate
and House of Representatives. [Art I, sec. 1]
The arch-amendment will reform Congress and restore the House of Representatives to fitness as a prime force for democracy within the framework of a republic. Also, the constellation law will render congressional powers more effective, not for reducing the judiciary to a junior partner in the government, but for pushing the courts back into their constitutional role of interpreting the laws that originate elsewhere than from the bench.
It is not in the Courts, but in the Legislative Branch, that the U.S. Constitution vests “all legislative powers.” When legislative power is usurped by the Judicial Branch, it seriously undermines what Jefferson called the most valuable of all freedoms, the liberty to be a self-governing people.[7] As the Federalist Papers put it:
liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments. [78:8]
Indeed today’s Judiciary has gone beyond the role of mere legislators; it has become a de facto constitutional convention. The Court has usurped so much power that judges simply amend by adjudicating. Their now routine rewriting of the Constitution is utterly unaccountable to the people, in that judicial decrees require no ratification by the states as the Constitution requires of anything that emerges from an Article V constitutional convention.
A plentitude of judicial usurpations chronicle the rise of the postmodernist regime, backed by a forest of aberrant case precedent. Most recently, pro-sodomy moves, anti-Ten Commandments edicts, and rulings favoring corporations over voters and over property owners have reached new heights of effrontery and hypocrisy, in that they cite “the rule of law.”
Sordid Cases of Usurpation:
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Federal Judge Myron Thompson |
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State Chief Justice, Roy Moore |
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In 2010 the oligarchy of nine masquerading as “Justices” allied with plutocratic manipulators of elections by opening the floodgates to corporate campaign financing. Overturning longstanding limits on campaign contributions by transnational and domestic mega-corporations, the Court announced glibly that decades of restriction on big money had “‘muffled the voices that best represent the most significant segments of the economy.’” Don’t worry about public reaction, the Court reassured the officeholder class; for “the appearance of influence or access will not cause the electorate to lose faith in this democracy.” (Citizens United v. Federal Election Commission, pages 38, 5-6)
Earlier in Kelo v. New London, Connecticut (2005), the US Supreme Court decided effectively to amend the Fifth Amendment from the bench. Government may now seize private property not just for public use – as in long accepted eminent domain proceedings – but for private profiteering. Our judicial dictators empowered city hall to level your neighborhood or tear down your church, in order to make space for condos or a shopping mall or a corporate office building.
In 2003 the Court was on the warpath against religion in public life. Federal Judge Myron Thompson applied earlier judicial edicts against the Ten Commandments to force removal of a monument located in the Alabama state judicial building. Craven officials like Alabama Attorney General, William Prior, announced their sympathy with the Ten Commandments monument, but in the end kowtowed to federal tyranny, meanwhile mouthing SoundBits about the rule of law. In the surrender process they backstabbed Chief Justice Roy Moore even as they delighted groups like the Freedom From Religion Foundation, and the omnipresent ACLU.[8] Christians like Rev. Chuck Baldwin were alarmed and perturbed. “Some are saying that Judge Moore is violating the law by refusing to remove the monument,” wrote Baldwin. “Wrong. It is (federal Judge Myron) Thompson and every one who supports him who are violating the law!”[9]
I corresponded with two attorney friends during August, 2003, when the Ten Commandments were initially screened from public view and then removed to a back room under lock and key. My friends’ legal opinions were these:
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Violating one's oath to the constitution to defer to the unconstitutional orders of the court is to render the statement ‘I will strive to uphold the rule of law’ an oxymoron.[10]
The associate justices (of Alabama) wrote that they are ‘bound by solemn oath to follow the law, whether they agree or disagree with it.’ But in fact they are not following the law, they are only following orders. The orders are contrary to the law. And, to be clear, by “law” here I don't mean God's Law, I mean the law of the land, (the U.S. Constitution) which the supreme courts of both the U.S. and Alabama are now violating.[11] |
After state officials caved in to Judge Thompson’s federal mandate, Chief Justice Moore himself stated,
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Not only does Judge Thompson put himself above the law, but above God as well…. I hear others talk of the rule of law. If the rule of law means to do everything a judge tells you to do, we would still have slavery in this country. If the rule of law means to do everything a judge tells you to do, the Declaration of Independence would be a meaningless document….Dr. Martin Luther King is proof enough that great men do follow the rule of law and not the rule of men. I say enough is enough. We must “dare defend our rights,” which is the motto of this great state….[12] |
That same summer of 2003, in the case Lawrence v. Texas, the Court issued its edict affording sexually active homosexuals “the full right to engage in their conduct” – in effect pushing sodomy up into the Bill of Rights.[13] Justice Anthony Kennedy wrote for the 6-3 majority, thus bowing to postmodernist imperatives and disregarding his “moral duty” as a Roman Catholic to oppose homosexual unions. A Vatican document dated that same month, and promulgated by order of Pope John Paul II, stated that it would be “gravely immoral” for lawmakers to vote in favor of legislation that approved such activity.[14] In legislating from the bench, Justice Kennedy went further and gave sodomy the highest form of approval available in American politics, the endorsement of the U.S. Constitution.
Seventeen years earlier, in the Bowers case, the U.S. Supreme Court had narrowly but explicitly eschewed judicial usurpation on this issue, opting instead for judicial restraint. Justice Byron White wrote the earlier decision, rejecting the idea of “redefining the category of rights deemed to be fundamental.”[15] Otherwise, wrote White,
the Judiciary necessarily takes to
itself
further authority to govern the country
without express constitutional authority.
But Justice Kennedy dismissed White’s prior prudence as a “failure to appreciate the extent of the liberty at stake.” The court overruled the Bowers landmark, as “not correct when it was decided,” and “not correct today.” The Court then proceeded to lead the country down the path of sexual perversion. In so doing Kennedy and his fellow oligarchs despoiled and befouled the Constitution — all without reference to the amending process under Article V of the U.S. Constitution, and all for the purpose of elevating sin to the level of a civil right.
O highest law of the land,
Ignobly sullied and smeared;
How passion, precept, command
Scorn virtues the Founders revered.[16]
In other words Kennedy and his five accomplices in the act of usurpation foisted upon us a twisted and distorted version of the Constitution, and without going through the process whereby the republic secures the consent of the governed. His colleagues, Justices Breyer and Ginsburg, admitted looking overseas to pro-gay developments in foreign countries when deciding to vote with Kennedy on the sodomy issue.[17] Justice Kennedy led his colleagues in a high level mugging that leaves us no option but to respond in self-defense.
Not even within the judiciary (especially at the state and local levels) is there unanimity in support of judicial usurpation. In 2005, with the gay marriage issue again in the courtroom, a New Jersey appellate court broke ranks.
In this 2-1 split decision (Lewis v. Harris), the court refused to redefine marriage, with the majority arguing in part that “our society as a whole views marriage as the 'appropriate and desirable forum for procreation and rearing of children.'”[18] On this point Judge Donald E. Collester dissented. There was nothing in the record, said he, to indicate that the same-sex plaintiffs are “providing an environment for growth and happiness of the children that is anything less than optimal.”[19] The appeals court majority ruled, however, that they lacked the authority to make such value judgments and then to impose their conclusions on the people at large. Their reasoning was a sign of contradiction from within the ranks of the establishment, where legislation from the bench is a linchpin of the postmodernist regime:
In reviewing the constitutionality of the statutes that limit marriage to members of the opposite sex, as in reviewing any other statute, we must keep in mind that those statutes “represent the considered action of a body composed of popularly elected representatives” and therefore are entitled to a strong presumption of validity….This presumption “can be rebutted only upon a showing that the statute’s ‘repugnancy to the Constitution is clear beyond a reasonable doubt.’” The personal view of the members of the court concerning “the wisdom or policy of a statute” should play no part in determining its constitutionality. A constitution is not simply an empty receptacle into which judges may pour their own conceptions of evolving social mores. ‘To yield to the impulse to [invalidate legislation merely because members of the court disapprove of its public policy] is to subvert the sensitive interrelationship between the three branches of government which is at the heart of our form of democracy.’ Consequently, our personal views of the legislative decision to limit the institution of marriage to members of the opposite sex are irrelevant. The only question is whether this legislative decision violates a specific constitutional provision.
…Nothing before the court compels us to remove the “deep logic” of gender as a necessary component of marriage, or to recognize, on equal footing, any adult relationship characterized merely by interdependence, mutuality, intimacy, and endurance. [20]
Any societal judgment to level the playing field must appreciate the proper divide between judicial and legislative activity. … It is, therefore, a proper role for the Legislature to weigh the societal costs against the societal benefits flowing from a profound change in the public meaning of marriage. On the other hand, the judiciary is not in the business of preferring, much less anointing, one value as more valid than another…. The choice must come from democratic persuasion, not judicial fiat. [21]
In writing the foregoing opinion New Jersey Judges, Stephen Skillman and Anthony Parrillo, stood defiantly with the democratic process. They resisted the trend toward judicial oligarchy which legislates from the bench in order to force various agendas down the throat of a reluctant and unwilling populace. In contrast to Skillman and Parrillo, the practitioners of judicial usurpation see consent of the governed as a snag interrupting the progress of their postmodernist revolution, and thus to be avoided if at all possible. As a case in point, thirteen states put the issue of homosexual marriage / civil unions on the ballot in 2004. The referendums were in states arrayed from coast to coast and from the Canadian border to the Gulf of Mexico. In all thirteen states, the governed (we the people) withheld our consent from the homosexual marriage agenda.[22] Where given the chance to decide the issue directly, the voters in 2004 reaffirmed traditional marriage by an average margin of 70%.
Activists seeking to invert moral standards have every reason to look askance at the concept, expressed in the Declaration of Independence, that in order to secure our inalienable rights …
Governments are instituted among
Men,
deriving their just powers from
the consent of the governed.
Accordingly usurpers like to dispense with us, the governed, wherever and whenever they see the expression of our will as inexpedient. Instead of us, the people, postmodernists look to the unelected, life-tenured, irremovable politburo of nine.
I have a cousin, a longtime successful attorney, who contends that judicial usurpation is good for the country. Life today is so complex, he argues, that committees of 12 (juries) and elected legislatures are too slow and dull-witted to deal with problems effectively. One of the few places in society where you can find a pool of bright and perceptive people, organized so as to address problems decisively, is the bench.
If I understand my cousin’s argument correctly, it is an updated version of the case for giving a good education to the children of royal families so that when their time comes they will rule as bright and enlightened monarchs, sort of like Plato’s philosopher kings. Democracy is too indecisive and messy, whereas the absolute monarch sits at the head of a pyramid where he can make uncompromising and clear-cut decisions. The decrees are then carried into effect through an efficient chain of command. The same goes for edicts issued by an oligarchy of unelected and irremovable judges.
It may be true that as society gets more complex, democracy gets messier. Indeed it is probably so. But with Burke I share the view that democracy at its messiest is still “the worst form of government ever invented – except for all the others.”
When I asked my cousin about problems that are not complex, like term limits or the Ten Commandments on public property, he could not think of a way to justify judicial usurpation.
Some matters are inherently simple. One of them is duty. We are duty bound to our descendants – whom the Constitution refers to as our posterity. We owe them the chance to exercise that “consent of the governed” from which governments derive their just powers [Declaration of Independence]. If anyone, courts included, can macromanage the country without the consent of the governed, then according to this country’s founding document, “government becomes destructive of” such unalienable rights as “life, liberty and the pursuit of happiness.”
Put simply, we the people have an obligation – the Declaration of Independence calls it a “duty”[23] – to defend the country against abuse and usurpation. Our one good option, therefore, is to employ counterrevolutionary means that restore the Constitution to its unsullied and written form as the supreme law of the land.
For more than two centuries Congress has possessed three weapons to employ against usurpation of power by the judiciary, i.e. against union of legislative and judicial power. All three arrows in the congressional quiver have proven to be duds, the first by dint of basic defects, and the remaining two because of particular flaws that can be fixed:
· 1] court packing
· 2] impeachment
· 3] curbing court jurisdiction
The first arrow in the congressional quiver, court packing, was attempted by President Franklin D. Roosevelt in 1937. Frustrated by the nullification of his New Deal economic recovery plans by “nine old men,” FDR tried to change the complexion of the Supreme Court by increasing its membership to fifteen, i.e. by adding six new members pledged to stop overruling the President’s agenda. The political means chosen by Roosevelt was a classic case of the bad application of a good principle.
Yet the principle itself is as true today as when FDR articulated it:
I want – as all Americans want – an independent judiciary as proposed by the framers of the Constitution. That means a Supreme Court that will enforce the Constitution as written; that will refuse to amend the Constitution by the arbitrary exercise of judicial power – amendment by judicial say-so.[24]
By bad application of a good principle, Roosevelt erred and suffered one of his few political defeats. FDR disregarded Article III, sect. 2, (see below) and instead resorted to court packing — a tactic replete with potential for a coup d’etat against one branch of the government. FDR’s plan provoked determined opposition from a Congress controlled by the President’s own political party.
Similarly in 1911, the British House of Commons in alliance with the monarchy forced the House of Lords to surrender virtually all its power by threatening to pack it with the King’s reform-minded appointees. While the House of Lords may itself have been no great loss, suppose the victim had been a more democratic organ of government?
There are more prudent ways to reform than packing, or threatening to pack, the offending organ of government. So as forever to close the low road of court packing, section four (4:6) of the constellation law would establish a constitutional ceiling on membership in the Supreme Court at the long traditional nine.
While removing an old and unused arrow from the congressional quiver we will upgrade another. Article II, section four of the Constitution presently states:
The President, Vice President, and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.
To this list of impeachable offenses the constellation law, section 4:6, would add additional transgressions exclusive to members of the federal Judiciary. Articles of impeachment (and / or criminal prosecution) could henceforth include the following: (1) court decisions which disregard the Ninth or Tenth Amendments to the Constitution; (2) rulings which go beyond the jurisdictional confines of the Judicial Branch, and (3) failure to honor new powers of Congress to prune accumulated courtroom precedents. Thus, adulterating the Constitution by adjudication will become an explicitly impeachable offense under the constellation law.
The arch-amendment will also render these special articles of impeachment enforceable by reducing the margin required for conviction. On one or both of these two particular charges, instead of the virtually insurmountable two-thirds, a constitutional majority will suffice for conviction in the Senate.
… a vote of two-thirds in one of the Houses for removing a judge; a vote so impossible where any defense is made before men of ordinary prejudices and passions, that our judges are effectually independent of the nation…. We require a majority of one house and two-thirds of the other – a concurrence which in practice has been and ever will be found impossible; for the judicial perversions of the Constitution will forever be protected under the pretext of errors of judgment, which by principle are exempt from punishment. Impeachment, therefore, is a bugbear which they fear not at all. [Thomas Jefferson, 1821.]
Of late, activist courts have not only crossed the boundary of their own jurisdiction, they have also haughtily disregarded the constitutional mandate – that many if not most powers “are reserved to the States respectively, or to the people.”[25] Surely reducing two of the ten amendments in the Bill of Rights (Ninth and Tenth Amendments) to dead letters is far more threatening to our Republic than many a capitol crime. Timothy McVeigh was punished severely for base terrorism – blowing up the federal Building in Oklahoma City. But what about high level terrorism commited via the gavel? Let us no longer grant impunity to perpetrators of usurpations that amount to demolition of the written Constitution.
In defense of the judges personally, there are certain places where the letter of the written Constitution is so vague and so general that federal Justices and Judges must be tempted, even encouraged, to exercise power in ways that the spirit of the law forbids. That so many judges have yielded to the temptation is partly attributable, perhaps, to wording in the Constitution of 1787. To that extent the culpability for usurpation falls not entirely on our black-robed politburo, but also on delegates to the Convention at Philadelphia. Blame falls also on those generations of American officials and their collaborators in the general public who have squelched attempts to correct the problem.
In any case the horse is out of the barn now, and no pontificating or finger-pointing is going to get the rebellious stallion back into his stall. It will require no less than the force of constitutional law to break the will of the out-of-control courts that constitute one of the 20th century’s disastrous legacies – a growing threat to the principle of the consent of the governed. Not even Ronald Reagan, the most popular President of the postmodernist era, was able to curtail judicial usurpation; although “the great communicator” did identify the problem in a speech delivered some two months before the expiration of his second term:
…courts that played fast and loose with the instrument the founding fathers devised. Yes, some law professors and judges said the courts should save the country from the Constitution. We said it was time to save the Constitution from them. [President Ronald Reagan, November, 1988][26]
The Framers of this country’s most venerable document were great designers, but manifestly not infallible. Flaws in the Constitution had to be corrected by Amendment within the Framers’ own lifetime. The omission of a bill of Rights left a legal void which the very first U.S. Congress hastened to fill in 1789, and the Constitutional method of electing a President demanded the 12th Amendment in 1804. In our own time the Constitutional means of arresting judicial usurpation demands upgrading and strengthening.
We turn now to the third arrow in the congressional quiver — the authority of Congress to impose restrictions on the federal courts and to restrict the appellate jurisdiction of the U.S. Supreme Court.
...the supreme Court shall have appellate jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. [Article III, section 2, U.S. Constitution].
During the post-Civil War Reconstruction era Congress withdrew jurisdiction from the Supreme Court over a case it was already in the process of adjudicating. In terminating the case (1869), the Justices acknowledged the authority of Congress to intervene. Said the Supreme Court:
We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words.... It is quite clear, therefore, that this court cannot proceed to pronounce judgment in this case, for it has no longer jurisdiction of the appeal; and judicial duty is not less fitly performed by declining ungranted jurisdiction than in exercising firmly that which the Constitution and the laws confer.”[28]
In 1882 the Supreme Court again conceded that its own "actual jurisdiction is confined within such limits as Congress sees fit to describe.”[29] And as recently as 1948 Supreme Court Justice Felix Frankfurter admitted:
Congress need not give this Court
any appellate power;
it may withdraw appellate jurisdiction once conferred.[30]
However, not since the labor disputes of the 1930s and since the price controls imposed during World War II has Congress employed Article III to impose limits on a major jurisdiction of federal courts.[31] By 1940 in his The Judicial Power of the United States, Robert Jennings Harris was urging Congress to act more aggressively to preserve the authority of the Legislative Branch relative to the Judicial Branch. Harris saw “widespread abuses” in the previous half-century perpetrated by courts exercising legislative powers “of the greatest magnitude without the slightest responsibility.”[32]
In the second half of the 20th century the federal judiciary became even more bold in its usurpations and provoked a worthy but unsuccessful backlash. In the mid-sixties began a long battle over the one-man, one-vote U.S. Supreme Court mandates for reapportionment of state legislatures. Sen. Everett Dirksen of Illinois campaigned for several years on behalf of an Article V constitutional convention to restore the states’ longstanding practice of apportioning their state senates by county rather than by population. But as the late constitutional specialist, Sen. Sam Ervin, said “‘You can’t pass Constitutional amendments fast enough to control the Court.’”[33] Meanwhile, the House of Representatives passed, 242 to 148, a bill removing the matter of state senate apportionment from the jurisdiction of all federal courts, but in the U.S. Senate the issue never got out of committee.[34]
Fifteen years later the Senate passed, 51 to 40, a bill that would have deprived federal courts of jurisdiction over school prayer, leaving the matter to state courts.[35] Again the other chamber killed the bill in committee. During the floor debates of 1964 and 1979 the opposing points of view were articulated in succinct fashion by Sen. John A. Durkin [D] of New Hampshire and Hon. Howard W. Smith [D] of VA. Durkin was afraid of strengthening the precedent:
This type of restriction in the judicial power, once applied in this instance, will become ever easier to apply in the future. The appetite for this restrictive practice will grow with the eating....
Congressman Smith's primary concern was that,
There must be some check on the unlimited power of the Supreme Court, because if the Supreme Court can say anything is the law...then, my friends, we are drifting into an autocracy of the courts.... [Article III, section 2] is the one check which anybody in this country or in any agency of the government has. It is given solely to the Congress of the United States, to perform the duty of saving this country from dictatorship of the judiciary.[36]
Of late Congress has demonstrated little capacity to govern its own affairs much less solve problems in the other branches. Not surprisingly Congress as a whole has done nothing to check the federal courts in their gradual but inexorable revolution by usurpation.
Despite the corruption in Congress, a few voices from the wilderness were heard early in the 21st century. After a federal Court removed the Ten Commandments from the state courthouse in Montgomery AL, a congressional bill did garner four co-sponsors in the Senate and two in the House. Entitled “Constitution Restoration Act of 2004,” it would have activated Article III, section 2 to remove jurisdiction from the federal judiciary in cases involving “recognition of acknowledgement of God as the sovereign source of law, liberty, or government.” It would also have bolstered the written Constitution by forbidding the courts from basing their decisions on the laws “of any foreign state or international organization or agency, other than the constitutional law and English common law.”[37]
After the issue of gay marriage became a cause celebre in the courts, the House of Representatives looked briefly like the democratic chamber it was meant to be. Boasting 48 co-sponsors, a bill entitled the “marriage protection act” passed the House (233-194) during the Summer of 2004.[38] The bill invoked Article III, sect. 2 of the Constitution and would have denied "all federal courts, including the Supreme Court, jurisdiction to rule on the constitutionality of the Defense of Marriage Act." Two months later, the House passed a similar bill, denying federal courts jurisdiction to remove the words “under God,” from the flag pledge.[39] This challenge to judicial usurpation passed 247-133. Both bills died, however, in the Senate Judiciary Committee.
There is no small danger that the United States will repeat the errors of ancient Carthage, retaining the forms of old republican institutions but submitting in reality to a new and closed oligarchy that allows little access via the democratic process. In Carthage it was the judges, the council of 104, whom Aristotle described as possessing “supreme constitutional authority.”[40] Within a century or so after Aristotle wrote his description, the Carthaginian constitution had gone from supremacy to tyranny — “a great change...had been completed,” according to former Oxford University history professor, R. Bosworth Smith. Possessing life tenure (much like U.S. federal judges), the council of 104 let the senate, the suffets and the popular assembly continue to deliberate, preside, and retain the trappings of government. But “like a halter around their necks” the “irresponsible despotism” of the judges presided ultimately over the government of Carthage.[41]
A prime aim of the arch-amendment is to upgrade the character and quality of Congress as an institution worthy of a central role in governing the republic, and as an assembly capable of decisive action. A sure byproduct of so improving Congress will be to increase the ability of Congress to defend its proper role relative to the other branches of government – i.e. the President, the bureaucracy, and especially the federal judiciary.
We can therefore anticipate a congressional activism under the constellation law that perpetuates our counterrevolution against judicial usurpation of legislative authority. Nothing less will maintain our liberties against un-elected and practically irremovable Justices, who double as a politburo of domestic policy, macromanaging the culture and dictating society’s basic direction.[42] Indeed our system of checks and balances between the three co-equal branches invites two branches to join forces and defend the balance of power if the third branch attempts to usurp powers not properly its own.
On the other hand, such a combination can itself upset the balance of power. The courts are an essential component in defending the principle of lex rex, that ours is a government of laws not men. If we would have no earthly king but the Constitution, we must beware of subordinating the Judicial Branch to the Legislative and Executive Branches. Under the existing Constitution, Article III, section 2, what is to prevent the Legislative branch from passing, and the Chief Executive from signing bills specifying a host of "exceptions" to the jurisdiction of the federal courts? This other extreme would reduce the capability of the federal courts to defend and uphold the supreme law of the land. One thinks of the Southern Confederacy whose constitution reproduced the identical wording of Article III, section 2. Soon the Confederate congress voted to eliminate entirely all appellate jurisdiction of the national supreme court over the various state supreme courts.[43]
If the Executive and Legislative were, with a like ferocity, to counterattack the Judicial Branch, leaving it permanently weakened and far from co-equal, the separation of powers arrangement would be damaged and eventually Congress and the Executive might contend for supremacy.
Against any breakdown in the balance of power at some point in the future, let us strengthen checks and balances that govern Congress when it curbs the Judiciary. These boundaries should be included in the same constitutional reforms that will dramatically energize Congress.
Thus the constellation law imposes a sunset clause (section 4:4) whereby a Supreme Court-curbing law would automatically expire with each Presidential inauguration. The maximum duration for any limitation of Supreme Court jurisdiction would be four years – or less depending on how close to a Presidential inauguration a court-curb is passed. Since the membership of the lower house of Congress would be in biennial rotation, a sunset clause will be more likely to terminate a congressional intervention than if incumbents could simply resurrect the very bill they themselves passed prior to the inauguration.
In other words, the counterrevolution that Congress can be expected to maintain with respect to the court system will be safer to carry on. The rotation of membership in the House of Representatives will continuously break the momentum, compelling the reforms to move sporadically rather than accrue a momentum that carries reform beyond the bounds of prudence. After a court-curb law automatically expires on inauguration day, reenacting it will require re-approval not only by the President and the Senate but by a House of Representatives soon to consist entirely of Congressmen who had nothing to do with the original bill.[44]
This rotational effect may help answer the fears of people like USC law professor, Leonard Ratner, who sees any limit imposed in essential cases to the appellate jurisdiction of the U.S. Supreme Court as threatening “the linchpin of the system.”[45]
We are not proposing to authorize Congress to undertake such a threatening course, for it has that authority already.[46] But we do propose to make a congressional blitzkrieg more difficult to launch than a police action which is guarded and measured. It will be easier for Congress to pick up the mallet than the sledgehammer, a rifle than a howitzer, an eyeliner than a paintbrush.
Perhaps we can compare this offensive in fits and starts to the halting of the Third Army after Gen. Eisenhower failed to supply gasoline for Gen. Patton's tank columns. In curbing judicial usurpation we need to temper the counterrevolution with care and prudence. Where the balance and separation of powers is concerned, it is better to err on the side of caution.
Nonetheless, failure to challenge the current judicial regime would be neither safe nor prudent. As Northwestern law professor Martin Redish cautiously puts it, there may be areas where Congress “might appropriately return to the state courts some of their historical authority as the courts of first instance in federal question cases.”[47] Indeed it would likely be a healthy check to elitism in the federal judiciary if state courts took the reigns in certain areas, temporarily. In fact Congress could make this arrangement more long-term by reenacting the jurisdictional denial again and again at four year intervals. There is plenty of historical precedent for a greater role by state level judiciaries in federal matters,[48] and the supremacy clause does hold states accountable to the U.S. Constitution.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof...shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. [U.S. Constitution, Article VI]
A certain amount of inconsistency and lack of uniformity might develop, but who is to say that all variation in the legal system is unhealthy or bad? Better to have some variety from state to state than a uniform dictatorship by nine supreme social engineers who trample underfoot the spirit if not also the letter of the written Constitution. But suppose the lack of uniformity proves excessive or unacceptable to the American public. The voters can then put pressure on Congress via the ballot box to pull things back together – a simple majority being required to restore federal court jurisdiction in the area(s) of difficulty, or more often perhaps, a passive acquiescence to restoration of jurisdiction by means of the sunset clause. No system, constitutional or otherwise, is foolproof.[49]
Judge Robert Bork worries that the state courts would simply reiterate what the federal Courts had done earlier, before losing their jurisdiction.[50] Under the section 4:9 of the constellation law, however, each state and local level judge will take an annual oath of office vowing to oppose legislation from the bench as “contrary to honesty and in violation of my judicial duty.” If state courts violate this oath, then the next line of defense for the federal system will be Congress, a far more suitable repository of our freedoms than any unelected and irremovable tribunal.
Pruning Case Precedent
Under section 4:2 to 4:5 of the constellation law, Congress is authorized to examine federal case precedent that pertains to a particular issue. Congress is furthermore empowered to void the relevant body of governing precedent that emerged during a designated time frame –– or from chronological clusters if Congress prefers. Unless in conjunction with the curtailing of jurisdiction Congress goes further and specifies also a precedent cutoff date, then the time frame would default to everything from 1891 up to the date of said act of Congress. Case precedent prior to 1891, including the common law and the first 102 years of the federal court system, would be untouchable by Congress. Lest wavering back and forth by Congress create vacillation in the body of legal precedent, a supermajority of two-thirds would be required to restore a previously voided case precedent.
Under this new authority our elected representatives in the Legislative Branch could demarcate past rulings from the bench as no longer governing American jurisprudence. After such congressional intervention, the voided case precedents would become invalid as the basis for future court rulings, federal, state or otherwise. Judges who continue to cite the voided precedent would be subject to impeachment and / or criminal prosecution.
Courts will thereafter be compelled to take a fresh look, which might or might not lead them to a different conclusion. Accordingly under the constellation amendment, Congress will have a new arrow in its quiver for bidding courts to rethink their position.
An associated problem addressed under section 4:1-5 is the multiplying agglomeration of judge-made law that passes for interpretation of the Constitution. What the massive accumulation of precedent does in reality is to conceal the Constitution, downgrading it to a kind of archaeological site, like an ancient pyramid in the tropics engulfed and obscured by an encroaching jungle. One of the options available under the arch-amendment, would be for Congress to limit the case precedent but not the jurisdiction. This approach would be possible under the following procedures:
A few minutes, hours or days after enacting a court curb, Congress could forthwith pass a law restoring the court's jurisdiction, so that the practical impact on judicial powers would have been nil. Similarly, by passing the bill in January just prior to the Presidential inauguration, the court-curb would in a few days expire automatically under the sunset clause. However the restored authority would have lost some stare decisis – the clutter of case precedent – that formerly guided (or misguided) the judges on the federal bench.[51] Future rulings in that jurisdiction would then have to be based directly on current statutes passed by the Legislative Branch, or, if appealed, on the written Constitution. The law in its pure form would then reemerge. Congress will thus be charged to see that the written Constitution in all its celestial beauty is no longer engulfed and obscured – like the planet Jupiter’s rocky surface surrounded by a slush-like atmosphere many times thicker than the diameter of the solid part of the planet.
The cutoff date for stare decisis will depend on Congress, who can push the date back as little as twelve years or as far back as the default date: the 1891 centennial of the Bill of Rights (section 4:1). In cases, focused primarily on the issue of racial equality, however, lest the reforms be misunderstood, Congress can unbind precedent no further back than the date on which the constellation amendment is ratified. (4:3)
Here we find a refutation of the charge that by doubling the length of the Constitution the constellation law ignores the merits of brevity. If for every syllable added to the Constitution, a thousand sentences are subtracted from the mass of judge-made law, then to criticize the constellation law for its extensiveness is surely a case of straining out the gnat and swallowing the camel.
To conclude: In addition to eliminating court-packing as an option, the arch-amendment has five purposes as regards the Judiciary, the least democratic branch in the federal government. First, term limits and other reforms will re-energize Congress against usurpation of legislative power by any branch, including the federal courts. Second, the constellation law will streamline procedures for impeachment and/or prosecution of federal judges who usurp power. Third, there will be clarification and elaboration of the Constitution [Article III] where it authorizes Congress to curb an over-activist U.S. Supreme Court by removing certain areas of dispute from the Court's jurisdiction. Fourth, section 4:4 imposes a sunset clause, so that after each Presidential inauguration any movement to cut judicial jurisdiction will have to begin again from scratch. Fifth, the reforms also provide a more confined and circumscribed option for Congress to curb the federal courts, in essence by instructing judges to begin afresh as regards precedent. In a specified jurisdiction the federal courts would have to build from the ground up, juxtaposing cases to statutes [laws passed by the people's representatives] and to the written Constitution, rather than to previous legislation from the bench obfuscated as interpretation of the Constitution.
And as a bonus, ancillary to the precedent cutoff date of 1891, there will be more reason for law schools to imbue fledgling attorneys with the pre-centennial spirit of jurisprudence that prevailed when John Marshall and Abraham Lincoln rode the circuit. It would be a healthy development in American law if lawyers began once again to read and contemplate pioneering practitioners of the Constitution, and to study the inspired reflections of the Framers on “the supreme Law of the Land.”[52]
The two great differences between what has devolved to the present and what the Framers intended are these: (1) Under Article V, periodic Amendment of the Constitution would have proceeded via a temporary assembly elected for the purpose, rather than by nine unelected, life-tenured members of the U.S. Supreme Court. (2) Amendments to emerge from the convention would have been provisional, until winning ratification by the States, in contrast to constitutional rulings issued by the Supreme Court which are final.
Under section four of the constellation amendment, we can look forward to a revitalized Legislative Branch armed with a new triple threat — removing jurisdiction, pruning precedents, and ousting usurpers from the Federal bench. Under this new political equation, reformers will be forced to put less stock in judicial usurpation as a means of adapting the Constitution to changing times.
The Framers did provide a more democratic way to keep the Constitution flexible, i.e. “living and breathing,” to use today’s fashionable phrase. As quoted above in chapter four, the contemporary historian, Samuel Williams of Vermont, explained that “it is one of the essential and constituent parts of American government, that conventions shall be called at certain periods of time, to alter, amend, and improve the present form and constitution of government.” Among the Founding Fathers who much preferred this method, rather than give the Supreme Court such a dangerous role, was the Sage of Monticello:
But the Chief Justice says, ‘There must be an ultimate arbiter somewhere.’ True, there must; … The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress or of two-thirds of the States…. And it has been the peculiar wisdom and felicity of our Constitution, to have provided this peaceable appeal, where that of other nations is at once to force.
Thomas Jefferson, letter to Judge William Johnson, 6/12/1823.
Another from America’s founding generation, Thomas Paine, also wrote about the constitutional convention as the democratic way of adapting the Constitution to new circumstances:
A government on the principles on which constitutional governments arising out of society are established, cannot have the right of altering itself. If it had, it would be arbitrary. It might make itself what it pleased; and wherever such a right is set up, it shows there is no constitution. …The right of reform is in the nation in its original character, and the constitutional method would be by a general convention elected for the purpose. There is, moreover, a paradox in the idea of vitiated bodies reforming themselves.
Thomas Paine, The Rights of Man, Part 1 (1791)
In proportion as judicial activism is discouraged, the people will be encouraged to have recourse to Article V conventions for proposing Amendments. Thus, section four would draw the nation back to an original democratic principle.
PART TWO:
TRIBUNATE
DUTIES IN THE BUREAUCRACY
A relationship that needs to be restored is that of service between the bureaucracy and its employer, the general populace who pays the bills.[53] Consisting of more than 2.7 million civilian employees,[54] the administrative apparatus of the federal government has become so autonomous as to be the near equivalent of a fourth branch of government. Autonomy and the ballooning size of the bureaucracy have ushered in deepening morasses of red tape and restrictive regulations.[55]
To promote the bureaucracy's efficiency and subordination to the elected representatives of the people, is the broad purpose of the office of tribune, as defined in the constellation law. Under section 1:3-8 the 435 U.S. Representatives will serve as tribunes for the first two years of the four years and two months path of service. There will be at least two elected Representatives per congressional district —— the incumbent tribune and a Congressman who himself has previously served as tribune.[56]
Ombudsman Functions of the Tribune
The office of ombudsman originated in Sweden early in the 19th century, and since 1955 national level ombudsmen have been established in a number of countries including the rest of Scandinavia, the member states of the European Union, Australia, New Zealand, Philippines, Israel, Argentina, Mexico. At the international level the 15 nation European Union [EU] has its own office of ombudsman, whose purpose is to handle citizen complaints.[57] In the United States Alaska, Hawaii, Arizona, Iowa and Nebraska have instituted the office of ombudsman at the State level.[58]
The common denominator wherever the office is found is the trouble-shooting function of investigating citizen complaints concerning specific acts by government agencies. In Nebraska, for example, the ombudsman's duties are as follows:
To receive complaints from the public and from persons working in government; to investigate; and where appropriate to negotiate remedial action with the agencies involved. A secondary duty is to answer questions and assist people with problems relating to government.[59]
National level ombudsmen in Sweden are directly accessible to the citizens, in contrast to the British and French counterparts where the citizen must go through his member of parliament, who in turn may present the issue to the national ombudsman.[60] In all three nations, however, the ombudsman is able to examine any government files and papers, except for secret documents which concern national defense, the safety of the state, or foreign affairs.[61]
Historically, ombudsmen have been appointed official rather than elective. While the British and French have introduced an elective factor by channeling complaints through the respective legislators and thence to the ombudsman, in America the Congressman himself has increasingly assumed the part time role of trouble-shooter for his constituents.[62] This unofficial function has become ever more time consuming, and has steadily reduced the time that Congressmen allot for the preparation or inspection of bills.[63] As political commentator, Devvy Kidd notes, “Members of Congress do not read the bills that become law — at least not on a regular basis and not on some of the most draconian, oppressive laws ever to be imposed against the people of this free Republic.”[64]
Legislating without prior inspection does not prove that members of Congress are shiftless, but rather underscores the reality of there being but 24 hours in a day. To have but one Representative per district, whose average workday is said to be eleven hours, and who must divide his or her schedule between trouble-shooting and legislating is not a factor in favor of congressional efficiency. Some Congressmen themselves have suggested that each congressional district should elect a second Representative to handle constituent services.[65]
As Morris Fiorina notes, the involvement of the legislative branch in the ombudsman process does have at least one major advantage: members of Congress exercise "control over what bureaucrats value most – higher budgets and new program authorizations."[66] This kind of leverage over the bureaucracy is a potent and persuasive tool that appointed ombudsmen lack. Accordingly, to augment the effectiveness of ombudsman, the constellation law aims to approximate the legislative leverage now exercised by Congressmen, but in an office where the intra-bureaucratic trouble-shooting duties are full time.
By virtue of the tribune's impending advancement to legislative powers in the House of Representatives (constellation law 1:3, 11), the tribune's leverage over bureaus and agencies will be akin to that of a member of Congress, and far more substantial than for appointive ombudsmen. In addition to this anticipatory power of the purse, the tribune will embody a still more pertinent prospect for bureaucrats: as assistants to the Vice-President in conducting bureaucratic reductions — that is in rescinding regulations and abolishing whole portions of the bureaucracy itself — the tribune will have an influence on the bureaucrats' very tenure in office (section 1:8-9). The dual influence over job security as well as over bureaucratic budgets will equip the tribune with a keen two edged sword during service as ombudsman.
In other words supervisory power in the federal bureaucracy will be subjected to a more populist scrutiny and accountability than at present. This is not to say, of course, that lines of authority, whether popular or otherwise, are not prone to some failure. But to the extent that mistakes are made in a closed system, errors are more likely to fester and multiply than when supervisory oversight over a bureaucracy is more open and democratic. If a tribune does abuse his influence or push the bureaucracy in an ill-advised direction, people in the bureaus have a clear line of appeal, i.e. to the Vice-President under whom the tribunes would serve as assistants.
The new accountability of the bureaucracy will serve to check the overbearing insolence of bureaus. The reform will enable elected and populist oriented tribunes to counter the elitist tendencies that agencies too often exhibit, ranging from schemes for social engineering to harassment of private sectors in the economy. In short, the influence of tribunes will encourage federal employees to see themselves as public servants.
Investigation by Tribunes
The investigative powers of the tribune as set forth in the constellation law (1:6-7) are officially much like the powers vested in ombudsmen today. State level ombudsmen have access to files, papers and premises of agencies, and also the power to take testimony from appointed public officials. The State of Hawaii, for example, empowers its ombudsmen to enter without notice an agency office, to inspect the premises, and to hold private hearings.[67]
While these powers are suitable for ombudsmen when responding to constituent complaints against bureaucratic ruling or omissions, the tribune is not confined in his investigations to this trouble-shooting function. Section 1:6 states another purpose: “to encourage good government by discovering and dishonoring corruption or incompetence.” In this capacity tribunes would undertake investigations either on their own initiative or at the request of the Vice-President.
The need for such investigating is evident in a U.S. Department of Justice estimate that as much as $25 billion is stolen annually within the federal agencies.[68] Another form of theft was the tool kit sold to the Pentagon for over $10,000 but worth less than $100 on the retail market.[69] If sending 435 powerful tribunes into the bureaucracy deters any substantial portion of the widespread graft and corruption that is reported to afflict the federal apparatus, then the savings to the taxpayer will far exceed the salaries and support costs of adding 435 tribunes to the payroll.
One variation from the methodology employed by today's ombudsmen is the proviso in section 1:6 that tribunes must work in pairs in order to exercise their full investigatory authority. The reasons for pairing tribunes are three. First, working in pairs enhances the safety of investigators from slander or false accusations. Second, the pairing is a source of mutual encouragement, countering the tendency of a single investigator to become timid in the face of a cold reception, or to avoid the more difficult cases, or to indulge in respect of persons when powerful officials are encountered. Third, working in pairs would promote disciplined, orderly efforts by tribunes. Punctuality and fidelity to a schedule may seem less urgent, and procrastination be easier, when one works alone.[70]
The arrival of a tribune pair to conduct investigations may well be a disturbing or disheartening sight to certain federal bureaucrats. In the long run, however, the influence of tribunes working as investigators and as expediters for constituents will have a positive effect on morale. A sense of occupational self esteem will grow in proportion as the bureaucracy operates more cleanly, fairly and economically in serving society as a whole.
Bureaucratic Reductions
Another function of tribunes is to aid the Vice-President in making the federal bureaucracy not only more efficient, but smaller and less expensive. One of the threats to the Republic is that an ever expanding government will make society top-heavy and unstable economically. Averting this danger will require a fundamentally new federal instrument whereby to thin out, and thereafter to regularly trim back, the impenetrable thicket that bureaucracy has become.
After the Four Years Act of 1820, followed by the spoils system of the Jacksonians, the federal bureaucracy was for more than half a century the object of political patronage.[71] The Pendleton Civil Service Act of 1883 undercut this practice; and by 1917, the year of America's entry into World War I, three-fourths of the civilian employees of the federal government were hired under competitive civil service standards.[72] Prior to the civil service reforms, any federal appointee was subject to the whims of partisan political fortune, whereas under the Pendleton system of civil service, job security became a prime attraction of U.S. Government employment. However, today's bloated bureaucracy of nearly two million civilian employees (not counting the postal service) indicates that the pendulum of the Pendleton reforms has swung far to the other extreme, having favored not just security from the spoils system but even security from the practical necessity of reducing government to moderate and manageable proportions.
In terms also of its characteristic penchant for regulation, modern bureaucracy has been allowed to run rampant. In 1936, when the U.S. Government began assembling new federal rules and regulations in the annual Federal Register, that one year's output filled a volume of 2619 pages. By the year 1960, however, there were more than 14,000 pages of regulating activity per year. The burgeoning quantity of proposed or actual regulations per annum had risen to 75,000 pages at my last count.[73] The Code of Federal Regulations (CFR), which is an accumulation of the years of federal rules and regulations currently in force, filled 142 book length compilations taking up 12½ feet of shelf space. It's regulations govern not just federal employees, but prescribe various requirements for private industry and society at large.[74] In 1978, for example, American businesses were confronted with 4,418 different kinds of forms from the government, which took some 143 million man-hours to fill out, costing private industry an estimated $25 billion to $32 billion in added expenses.[75]
Bureaucratic rulemaking is essentially the exercise of law making functions by appointed officials. The related problem of over-regulation follows from the failure of Congress adequately to fulfill its designated role under the Constitution as the nation's lawmaker. In fairness to Congress, the task of legislative oversight – i.e. keeping agencies and bureaus in harness – has become increasingly if not impossibly demanding in proportion to the expanding size and complexity of government. In an effort to keep pace and upgrade its oversight capacity, Congress made ever more use of the "legislative veto" (exercisable against the bureaucracy by one house alone), a procedure which, however, the Supreme Court struck down in 1983. Dissenting Justice Byron White expressed well founded fears that depriving Congress of the legislative veto would make it still "more difficult `to insure that the fundamental policy decision in our society will be made not by an appointed official but by the body immediately responsible to the people.'"[76]
Clearly the bureaucratic inundation in this country calls for a new approach to turn the administrative tide, both in its regulating encroachments and its oceanic size. The task is so monumental that nothing less than changing the system at its fundamental level will work; hence the necessity of adjustments in the constitutional framework of authority over executive branch agencies and bureaus.
Under the Constitution, the President is the Chief Executive, i.e. he is in charge of the executive bureaucracy. As early as the Reconstruction period, however, the President's de facto supervisory authority had been called into question by challenges to his power of dismissing certain subordinates in the executive branch.[77] Under civil service laws today, most of the bureaucracy is well insulated from the possibility of having their tenure terminated. To layoff federal employees is rarer than sunshine in a rain forest. The Constitution assigns no one in the executive branch clear-cut authority to trim back the bureaucracy.[78]
Since pruning the administrative apparatus will be an enormous undertaking, requiring far more time than any of our recent Presidents could prudently have spared, the constellation amendment (1:8-9) will delegate constitutional responsibility for bureaucratic reductions to the Vice-President. The President himself will have ultimate control through his power to veto any of the reductions. And of course the President will retain his position as Chief Executive, macro-managing the bureaucracy as he executes the laws. But the immediate initiator and micro-manager of intra-bureaucratic reductions will be the second highest elected official, the Vice-President.
The constitutionally designated assistants to the Vice-President would be the 435 tribunes, also elective officials. Their other intra-bureaucratic duties – as ombudsmen and as investigators – will help familiarize them with the territory in the field of bureaucratic reductions. By virtue of this practical experience together with their formidable investigatory powers, the tribunes will greatly increase the Vice-President's information on the inner workings of the bureaucracy.
An important consideration here is the role of rotation in office. At the first stage in the path of service, the biennial turnover of tribunes will introduce not only a populist representation, but a fresh and uncalloused influence into the working machinery of the U.S. Government. Our seventh President, Andrew Jackson, pointed out that the longer a person is in power, the more apt he is to become tolerant of conduct against which an unpracticed man would revolt.[79] Just as "the new broom sweeps clean," so most tribunes will be fairly new to the federal system. The tribunes will enter the bureaucracy with an outlook both democratic and unjaded – an outlook the biennial turnover of tribunes will continually regenerate.
In summary, the duties of the tribune would include the following: Ombudsman or advocate for the constituency, and assistant to the Vice-President in pruning regulatory activism and in checking bureaucratic raids on the treasury. These two roles will give U.S. Representatives a balanced training in terms of liberalism and conservatism or, to put it another way, in terms of offense and defense. As ombudsmen they will play the offensive or activist role as advocates for constituent demands. Meanwhile as assistants to the Vice-President, they will stand defensively against bureaucratic regulators and administrative demands on the treasury. This dual socialization process will offer the 435 a more balanced perspective than the current culture of spending which indoctrinates all decision-makers (be they presidents legislators, or agency chiefs) into an expanding-programs, massive disbursement mindset.[80] The tribunes’ role of cutting regulations will also serve as a training ground for their coming role as Congressmen authorized to rescind laws, the recession session of two months (or intervals totaling 60 days) being set aside for the purpose of pruning the great body of statutory accumulations.
The Triple Veto
Since the Vice-President is a partisan political figure, and normally a party-man, it may be argued that his new role will restore to the civil service another form of partisanship comparable to the spoils system that antedated the Pendleton Act of 1883. To prevent such a development, the constellation law (1:9) specifies a period of 90 days following each Vice-Presidential reduction of the bureaucracy, during which the committee of cuts may exercise its veto. At least five of the seven members of the committee of cuts will be in the opposite political party to the Vice-President.[81] Any cuts within the civil service that carry the taint of partisan politics would, therefore, invite a veto from the Vice-President's political opponents in the committee of cuts.
Since federal bureaus and agencies are created by law, the Legislative Branch also has a veto (section 1:9), exercisable by majority vote in both houses of Congress. Congress can also remove certain rules and regulations from the Vice-President's jurisdiction simply by enacting them into law.
The constellation law gives the third 90 day veto against Vice-Presidential reduction of the bureaucracy to the President, the highest official in the Executive Branch. This veto power will assure the continued control of the Chief Executive over the administrative apparatus. In addition it will promote advance consultation and cooperation between the Vice-President and the respective department head, because the latter can always appeal to the President for a veto.
And so, the triple veto against bureaucratic reductions will be a potential and ever impending system of checks upon the new powers of the Vice-President. These checks will promote practical and non-partisan fairness by the Vice-President. In short, it will encourage him to temper zeal with prudence as he trims government down to a size more affordable to his constituents, i.e. the taxpayers who have to finance bureaucracies that become bloated.
PART THREE:
PROCEDURAL REFORMS WITHIN CONGRESS
The Transition Interim
The second stage of the 50 month path of service is the two months period at midpoint, during which the 435 Representatives organize as an assembly for the coming term in the House of Representatives (constellation amendment 1:10). The transition interim will also enable the 435 former tribunes collectively to reflect on legislative goals.
In probably the most important of the interim duties, the 435 will outline budget priorities. This basic framework of goals does not mean a detailed item by item accounting of where every federal dollar should go. Rather it suggests a broad brush resolution on how much Congress should spend, and approximately what proportions should go for defense, foreign aid, education, welfare, space exploration, public works, and etc.
Under the existing system, the executive branch has superseded Congress in setting U.S. budget priorities. The White House initiates the federal budget for the fiscal year. Congress may alter it here and there; but the final form of the budget approximates the pattern initiated by the President and the appointed officials in the Office of Management and Budget (OMB). Under the constellation law, however, the 435 elected Representatives will themselves outline budget priorities during the transition interim. In preparing the outline, oversight by 435 Representatives over their staff work ought to reflect more directly the people's priorities than the budgets initiated heretofore by hundreds of OMB and Cabinet appointees under the titular supervision of but one person, the President. Nothing in the Representatives’ outline will be binding; but as a sort of report by the committee of the whole it should be useful as a working draft during subsequent sessions when the House hammers out the actual budget.
The transition interim will be an opportune time for each set of 435 Representatives to ponder the questions of how much to spend, and on what to spend it. Also, because this interim will be simultaneous with the last two months of the expiring House of Representatives, it will be a timely occasion to study the House rules and the leadership procedures employed by the outgoing House.
Limiting Dilatory Tactics
on the Floor
(Constellation law, section
3:6)
Except where the Constitution provides otherwise, the power of decision is supposed to lie with the majority of members present and voting in the Senate or House. Thomas Jefferson cited this principle, in his manual of parliamentary procedure, as the lex majoris partis.[82] It is a vital principle for both houses of Congress, which together are the primary repository of the legislative authority of the nation. Yet out of oligarchical tendencies that developed within both houses during the 19th century, rules evolved that violated the principle of majority rule. These changes were mutations of longstanding parliamentary rules of order dating far back into English history. The rules changes undermined the lex majoris partis to such a degree that minorities secured the power to blockade the entire Legislative Branch.
The founders of the American Republic were not unconscious of the lessons offered by the liberum veto in 17th and 18th century Poland. The collapse of Poland was taking place about the same time that our own Constitution was being framed. Veto power by individual members of Poland's senate was crippling government; eventually it led to the downfall and partition of that once great European power. Until the 18th century there had been eras of concord in Poland when relative unity and moderation masked the destructive potential of the liberum veto. Later, however, consensus broke down (much as it has in America today) and the obstructive power of factions paralyzed the body politic and put Poland at the mercy of her enemies.
America's Founding Fathers learned from history, and consequently the system as defined by the Constitution includes only a few special cases where one or both houses of Congress must act by approval of two-thirds. Otherwise the Founding Fathers left in force the natural lex majoris partis. The Polish experience must have weighed in their calculations, as well as contemporary politics in America where the two-thirds voting requirement in the continental congress was hamstringing that assembly and impairing its ability to act.
There are, in addition, two back doors or indirect methods to obstructionism by minorities on the floor of an assembly. One method is to require a two-thirds quorum, whereby a minority of one-third plus one can defeat a measure simply by walking out and denying the assembly the quorum required to do business. Such voting with one's feet became a major problem in the Pennsylvania legislature under the State constitution of 1776-1790,[83] nearly preventing ratification of the U.S. Constitution by the keystone state.
In 2003 the Texas legislature took a page out of history. In the Texas house as well as the senate, floor rules require that two-thirds of the members be present; so that all it takes is a quorum call to shut down the legislative process.[84] In May, 2003 more than 50 Democratic legislators spent the week in Oklahoma, beyond the reach of Texas state troopers ordered to seek out and arrest the departed solons. Twice during the summer of 2003, the Texas Eleven, just over a third of the Texas senate, [11 of 31 state senators] fled the state to prevent a controversial agenda item from being voted on; again the two-thirds quorum rule gave the minority a means to rule. After six weeks in Albuquerque, New Mexico, enough defectors in party ranks did return to Texas so that the legislature could resume its work.[85]
A quarter century earlier, Texans had seen the same tactics employed by “killer bee” senators who hid out in a garage apartment near the state capitol. Meanwhile Texas Rangers and other law enforcement personnel sought in vain for the senators. They had hoped to return them by force, so as to reestablish the required quorum of two-thirds, and put the senate back into business.[86]
At the national level, the Framers of the U.S. Constitution closed and locked this back door to minority rule by explicitly establishing a majority quorum requirement in each house of Congress (Article 1, section 5). Note here that the Framers of the Constitution paid little if any heed to the notion that there is something inappropriate or excessive about constitutional intervention in the internal procedures of Congress.
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I fear that we have created so many checks that we no longer have any balance Jean Edward Smith |
A second back door to minority rule on the floor is a parliamentary procedure which apparently the Framers did not foresee,[87]namely the requisite of two-thirds approval for previous question motions. During floor debate, when a member of an assembly moves the previous question, he proposes that discussion be terminated, and that the assembly proceed to a vote upon the question at issue. Under U.S. Senate rules that evolved in the nineteenth century, however, the Senators could not end debate (invoke cloture) except by a two-thirds vote. This led to filibusters – talking bills to death – sometimes in consecutive 24 hour sessions.
The long-term problem with the filibuster is the ratchet effect – many a mistake can’t be undone except by the singularly difficult supermajority. Down through the ages of world history, mankind’s progress has proceeded largely via trial and error. In the United States, however, the filibuster makes a legislative error semi-permanent, and thus renders the path to progress via trial and error far more risky. Experimentation becomes more dangerous because we might get stuck with it even after it goes manifestly wrong.
The system underwent a reform in 1917 (rule 22) whereby cloture motions were admissible but required a two-thirds vote to pass. In 1975 a modification in rule 22 reduced the two-thirds requirement for cloture to three-fifths of the entire Senate, or a flat 60 votes.[88] This reform was so minimal, however, that it failed to end the power of minorities to obstruct. Under this revised back door to minority rule, a minority of 41 has power to thwart the will of 59. Since the reform of 1975 cloture does occur somewhat more frequently than beforehand, but filibusters remain commonplace and "very debilitating" to the Senate.[89]
During the 1950’s and 1960’s, the filibuster was largely responsible for preventing congressional action in defense of racial equality. Thanks to filibusters against civil rights legislation, the scandalous failure of the Legislative Branch to act provoked the courts to open the great Pandora’s box of legislating from the bench, which led in turn to adulteration of the Constitution by adjudication.
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Sen. Mary Landrieu (D), Louisiana, protesting filibuster on Iraq War, Senate floor 7/17/2007 |
As the issue of judicial activism has become increasingly controversial, the filibuster has become a partisan weapon against confirmation of Presidential nominees to the federal judiciary. The first filibuster of a U.S. Supreme Court nominee took place during the Fall of 1968, when Republican Senators defeated a cloture vote on LBJ’s nominee as Chief Justice.[90] More than 37 years later, in 2005, with the Senate poised to amend rule 22 so as to restore majority rule (though just for judicial nominations), seven GOP Senators broke ranks and cut a “Faustian bargain.”[91] In exchange for the promise of an up or down vote on three stalled nominations, the defectors agreed to oppose any change in rule 22. More than a few Senators were appalled, including George Allen of Virginia.[92]
Overall this is a major disappointment on principle. It's a good victory for 3 of the President's nominees …. They will get the vote they deserve. But this is not a great deal for 2 nominees who have been accorded a nice wake having been thrown overboard at sea. Thus, this so-called deal is disappointing for all of us who believe in the principle that persons should be accorded the fairness and due process of an up or down vote….
Ending the Iraq war became so partisan an issue by 2007 that President G.W. Bush issued marching orders to GOP Senators to invoke the filibuster against the new majority of Senate Democrats seeking to end the occupation. Various anti-Iraq war measures passed the House of Representatives only to die in the Senate where a minority of 40+ were able to prevent a vote they were certain to lose. Thus the will of the Congress and the will of the electorate was thwarted by dilatory tactics on the Senate floor.
The distinguished manual, Robert's Rules of Order, remains an official basis for rules in many state legislatures and other assemblies throughout the United States. In the 1893 edition General Henry M. Robert, the author, discreetly avoided an attack on longstanding U.S. Senate cloture rules, but wrote of the House that because of its size and work load, it seemed "an absolute necessity" that the majority have power to limit or cut off the debate. Robert's argument continued:
...This is the more necessary in Congress because the party lines are strictly drawn, and the minority could almost stop legislation if they could prevent the debate from being cut off. In all bodies situated in these respects like Congress, a rule should be adopted allowing a majority to adopt the previous question, and motions to limit or close debate.[93]
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U |
nder section 3:6 of the constellation law, the filibuster would be buried forever in unconsecrated ground. No minority whatsoever would be allowed to delay Senate decisions for more than 25 hours of floor debate, an average of 15 minutes per Senator. While a given question is under consideration on the floor of the Senate or the House, only the voting majority will be permitted to extend debate beyond 25 hours.[94]
Some politicians and political observers think majority rule threatens minority rights, and they defend obstructionism within Congress as a useful form of internal checks. They suppose that it means a more controlled government, or perhaps more conservative politics. They see it as a way of applying the brakes. This view takes insufficient account of the macro system of constitutional checks, balances and separations, which put teeth into minority protections and the Bill of Rights. When rules within Congress promote obstruction by means of parliamentary barricades and road blocks, they weaken Congress' ability to counterbalance the other elements in the federal system. Legislation from the bench will be politically impossible, or at least far more difficult, if the Congress is not hamstrung, i.e. if we liberate our representatives in the Legislative Branch from hobbling internal procedures. Otherwise, however, others than our elected representatives will fill the power vacuum and do the “legislating” themselves.
This development is additionally alarming, in that the rise of bureaucracy as a virtual fourth branch of government has changed the equation for federal balance. Neither the bureaucracy nor the Judiciary are democratically elected, and so defenders of usurpation are promoting the very antithesis of the democratic principles on which our republic is based. Liberating Congress from oligarchical internal procedures, i.e. from minority rule, is therefore imperative if we are to bring the federal government back into balance as a representative democracy operating within the framework of a republic.
Scrutinizing Committee Work From the Floor
Eliminating the filibuster will make the Senate a more efficient and formidable force in the federal arena, but the lower chamber of Congress too has evolved its unique system of submission to Michels' iron rule of oligarchy.[95] In the U.S. House of Representatives, rule by the few is not through rules governing floor debate, but via the virtually autonomous standing committees.
After the introduction of the Constitution in 1789, the full House was the superintending authority over committees. The Committees were accountable to the whole House; they had yet to acquire the power of killing bills. Within a few decades, however, oligarchic tendencies began to emerge. For much of the 19th century and throughout the 20th century, standing committees have had power to withhold bills from a vote on the floor of the House.
Committees which continue from Congress to Congress are called standing committees. Their original role in the legislative process was to study questions and then advise the whole House, thus acting as informational servants to the parent assembly.[96] The subordination of committees to the respective assemblies had a long tradition, dating back at least to the 1550s in the English Parliament.[97] In the History of Legislative Methods in the Period Before 1825, historian Ralph Harlow describes how the House functioned in committee of the whole about 1805.
...the only part played by committees was to assist the House in getting ready for actual work. All really important steps were taken, and all decisions made, in committee of the whole. The House established the principles, while the committees worked out the details, acting only under specific orders in each instance.[98]
After the first quarter of the 19th century, standing committees began to extend their boundaries, ceasing to be just advisors, informational aids, and administrators of the details of House business.[99] Instead these permanent committees began to compete with the parent body by exercising increasingly independent jurisdiction over the legislative process. The 19th century saw standing committees continue to grow in de facto autonomy, and since 1910 they have been independent legislative forces.[100] Today the legislative authority prescribed by the Constitution for the House of Representatives has been scattered centrifugally throughout the semi-autonomous committee system. As a central unifying force the House assembly has declined and relaxed its hold. Instead of the apex of a pyramid, it is more like the hole in a doughnut, surrounded by its numerous committees and subcommittees. Instead of commanding its own legislative agenda, the full House tends merely to rubber stamp the decisions made by the various committees.
In his History of the House of Representatives, George B. Galloway says of the modern Congress: "In practice, Congress functions not as a unified institution, but as a collection of semi-autonomous committees that seldom act in unison." Galloway goes on to cite committee autonomy as a factor interfering with the adoption of a coherent legislative program.[101]
A: Committee
autonomy and parliamentary procedure
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Floor of the U.S. House of Representatives |
The main mechanism of autonomy for House standing committees is their power to prevent legislation from reaching the floor of the House. Until the early 19th century the whole House subjected proposals to preliminary screening before sending them to committee. There was no rule requiring automatic referral of bills to committee.[102] Even when a committee did consider a bill, it was an easy process to bring the bill back to the full House.[103] By 1867, however, rules had radically altered the assembly-committee relationship, making it virtually impossible for Congressmen to discharge bills from committee.[104]
It remains today exceedingly difficult to appeal a standing committee negative and bring a bill before the full House. Under the parliamentary rules, a Congressman who so moved would be gaveled down as out of order. Discharge motions cannot be brought directly to the floor. Instead a discharge petition must be filed at the clerk's desk where it is then kept in a locked drawer.[105] House members who desire a floor vote must persuade 218 fellow Congressmen (half of the 435 members) to go to the front of the chamber, while the House is in session, thus ostentatiously to sign the discharge petition. Only after acquisition of 218 signatures, can the House vote on the motion to consider the bill the committee has been withholding. The constellation law, section 3:5, will make discharge petitions mobile, so that no public display of defiance to a committee chairman need accompany the democratic process.
The discharge procedure just described has proven to be an awesome obstacle to any Congressman, or group of Congressmen, who would appeal a committee negative to the full House. Between the beginning of John Kennedy's Presidency and the end of Ronald Reagan's, 150 discharge petitions were filed in the House of Representatives, and a total of just seven gained the necessary 218 signatures.[106] In 28 years only seven bills were discharged, an average of one per four year span. The thirteen years from 1995 through 2007 saw, if anything, a tightening of committee autonomy. But one discharge petition of the 73 introduced saw the required 218 signatories step forward.[107]
Other than a suspension of the rules, which requires a two-thirds vote, the discharge petition is the only direct appeal to obdurate committee negatives.[108] Yet the discharge by 218 is even less facile to employ than cloture votes in the Senate, and neither of these procedures are compatible with the lex majoris partis.
The reality of majority rule is that deliberative bodies will naturally divide into three camps on a given proposal: (1) the advocates of the measure, (2) opponents of the bill, and (3) the group generally most numerous — the members uncommitted or at least not wholeheartedly siding with either the proponents or the opponents.
This last group, the middle, considers arguments on both sides concerning a particular bill. Then if the matter comes to a vote, the less committed middle usually decides the question. Unlike the advocates of a cause or the active foes of that cause, the middle group has at most a modicum of interest in the issue at hand. Indeed marginal interest by most members on most issues is natural and inevitable when thousands of bills are under consideration in a legislative body. Since every member has his own areas of keen interest, a given question rarely finds a majority of legislators fervently committed pro or con.
The rule which requires a minimum of 218 signatories to sign publicly for discharge, asks in effect that an absolute majority of the House cosponsor the bill. Hence, the rule that 218 be so supportive as to be signatories for the bill – well before the bill gets to the House floor – is a powerful strategic device based on a nuance of human nature.
At least one member introduces a bill and he might, if fortunate, secure several cosponsors. In unusual cases, the cosponsors of a bill number 20 or more. But given the uncommitted nature of the middle group, it would be almost impossible to legislate were it mandatory to have an absolute majority of legislators advocating every bill so actively as to cosponsor it.
By making discharge as difficult as an escape from Alcatraz, the intra-House elites have established an easily defensible fortress located in the strategic gateway between the assembly and the committee systems. Maintaining this procedural stronghold, committee barons prevent the majority in the parent body from holding their committees accountable.
The prerequisite to majority rule is the ability of the full House to retain the final say on the numerous matters necessarily referred to subordinate groups. No doubt committees should have a major say – but certainly not the final say.
For example, in Massachusetts, Maine and New Hampshire committees exercise a very considerable influence over legislation, but they lack the power to kill a bill by refusing to report it to the floor. In each of these three New England states, 100% of the bills must be reported out of committee by a prearranged date. Discharge is automatic.
At the congressional level in 1931 a reform movement did temporarily reduce the number of signatures required on discharge petitions in the U.S. House of Representatives from 218 to 145, i.e. from one-half to one-third of the House membership. This reform was abolished in a 1935 counterattack led by the intra-House oligarchy.[109] Thus the era of the Great Depression marks the last across-the-board change, albeit a short-lived one, in the autonomy of House standing committees.[110]
During the same era the House of Representatives restricted the discharge petition process when Speaker John Nance Garner imposed a secrecy rule in 1932 whereby the identity of signatories were concealed from the public unless and until the requisite number [then 145] was gathered. Although the requisite number was reestablished at 218 three years later, the secrecy rule was not abolished for another 61 years.[111]
Upon ratification of the twelve lights amendment, the Constitution itself will guarantee a workable process for discharging bills from committees. The Constitution has always provided for a roll call vote on the floor, rather than a voice vote, "at the desire of one-fifth of those present," (Article 1, section 5). If this guarantee of fairness and openness when the full House votes is worthy of constitutional protection, then why not the right of the full House to vote in the first place?
Section 3:5 of the constellation law will enable a Congressman to appeal a committee negative directly to the whole House, provided he obtains the signatures of at least one-fifth of the House membership, that is 87 Congressmen. The requirement of one-fifth leaves enough difficulty in the discharge process to prevent trivial or endless appeals. But unlike the current necessity of securing 218 signatures at the front of the House, the acquisition by mobile petitioners of just 87 signatories will mean a substantially reduced obstacle to appeals.
Recent House discharge petitions have tended to fall short by just a few score signatures. Had the required number of signatures stood at 87 instead of 218, the freedom of the majority to extract bills pigeonholed by committee chairmen and put the questions to a vote, would have been dramatically enhanced during the years 1997 through 2004. Of the 47 discharge petitions introduced during that eight year period, only one got 218 signatures. However 35 of the 47 petitions (74%) secured signatures from at least 87 Congressmen.
Discharge by one-fifth (87 Congressmen) will render it far more practical to work through the full House and override a committee negative.[112] The intra-House oligarchy will of necessity, therefore, relax its anaconda-like hold over the legislative process.
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Figure 7.1 House discharge petitions |
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1997-98 |
1999-00 |
2001-02 |
2003-04 |
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191 189
64 45 41 31 05 01 |
202 196 191 189 184 178 165 148 143 103
03 |
218
201 201 187 178 163 161 157 153 150 124
46 |
207 202 200 193 184 184 180 169 161 161 149 129
85 72 25 17 |
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Source: Beginning with the 105th Congress (1997-98) the House Clerk’s office lists discharge petitions on its internet site. |
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Section three facilitates appeals from committee negatives. If a committee decision is well founded, let the committee members defend it with all the facts and persuasiveness they can muster. Let them refute their opponents in floor debate. During debate in the full House, the respective committee members will hold advantage by virtue of the power of information. Committees investigate in a detail which is impractical for a large assembly. Consequently, assemblies seek spontaneously and gladly after the advice of their committees; and committee recommendations carry great natural weight with assemblies.[113]
This kind of influence is intrinsically powerful. It is an influence sufficient for committees, without the arbitrary power of holding bills back and preventing a full chamber of Congress from even considering an issue.
Moreover, as evidenced by Wahlke, et. al. in their investigations of State legislatures, a given committee will not always include in its membership all the legislators with expertise on the bills committed.[114] Likewise in Congress: to enhance the assembly's role will bring into play more expertise, not less.
Furthermore, the committees themselves will be more efficient and fair, knowing that their decisions are open to an appeal which would expose slovenly homework or special interest bias. As it is now, autonomy helps committees escape scrutiny. By rendering all committees accountable and their decisions subject to review, a practical process of appeal to the majority will promote higher quality work in committees.
B: Political interest on
the floor in holding committees accountable
In today's U.S. Senate a motion to discharge a Senate committee is not a problem procedurally; it can be offered from the floor and approved there by a simple majority. Nonetheless the Senate standing committees dominate through willing acquiescence of the full Senate. Deliberative democracy on the floor is untidy and stressful, and many Senators are content with the slice of power bureaucratically assured them by the committee system. Clearly, the de facto jurisdiction of the full House and Senate over the respective committee systems will require that there be substantial self-interest, in addition to a procedural mechanism, for members of Congress to assert the authority of the full chamber.
The constellation law, section 2:2-5, limits committees of Congress to three forms: fortnight committees, half-tribune committees, and joint Senate-House committees. With respect to a fortnight committee, the assertion of assembly supremacy should follow as a direct result of the 14 day tenure limit, which in due course will rotate through that committee the entire assembly membership.[115] Because a fortnight committee's membership will include over time all the people who serve in the assembly, and because the fortnight committee chairman will also be the leader of the assembly, there should be close correspondence of interest between the parent body and its fortnight committees. Also members of these committees will have no long term political interest in promoting committee autonomy. The committeemen will anticipate their short tenure and thus be inclined to enhance the power of the full chamber, wherein their membership is measured by years, rather than 14 days.
The other two committee forms will put a premium on the institutional memory that comes with long service, especially where Senators are members of the committee. Also these committee structures will provide a different sort of incentive for Senators and Congressmen to revitalize the parent assembly vis a vis committees.
As per this incentive to revitalize the legislative process in the full chamber, the key element will be the joint structure of the half-tribune committees and the joint Senate-House committees. A major part of a committee membership will consist of political outsiders, that is non-members of the respective house of Congress. Take, for example, the Senate half-tribune committees, where Senators will view the tribunes as political outsiders, because tribunes who vote in Senate committees will not themselves be Senators. With at least 50 percent outsiders on all joint committees, the Senate will surely be circumspect – even jealous – about independent policy making by committees. Alertness, watchfulness and scrutiny of committee decisions will be far more prevalent than in the full Senate today.
Much the same motives will cause Senators to hold joint Senate-House committees accountable. Similar vigilance will operate in the House, as regards its half-tribune committees and the joint Senate-House committees.
Here we have a basic principle of parliamentary politics. Negative incentive exists for the parent assembly to yield autonomous power to a committee that includes political outsiders. Hence it is no surprise that the few joint committees which exist in Congress have been carefully restrained by statute law from jurisdiction over bills.[116] Opposition to joint committee autonomy prevails at the State level as well.
Potentially, any joint committee structure represents a threat to the distinctly bicameral (two-chambered) quality of a State legislature. Most of the ground work on legislation is done in committees, and a member of the Senate, for example, who introduces a bill does not want the bill killed in committee when half or more of the committee membership are non-colleagues.
Multiply this anxiety by the number of Senators who introduce bills and you have a tension that has to be resolved. Some legislatures resolve it at the state level by having few joint committees, and by limiting their power over bills. Most state legislatures simply do not allow joint standing committees.[117]
In New England's three largest states, however, joint committees are the norm. The objective of holding committees accountable to members on the floor is an accomplished parliamentary reality in Connecticut, Maine and Massachusetts, where joint committees predominate. In the three smallest states of New England – Rhode Island, Vermont and New Hampshire – the dual committee system prevails, and accountability to the full House or full Senate remains to be realized.
The legislatures in Maine and Massachusetts, as well as New Hampshire, discharge 100% of their bills from committee. Yet however facile the parliamentary means, the means alone will never suffice to hold committees accountable. Accountability implies also the will on the part of the typical legislator to oversee committees – even the committees of which he is not a member. Given the dual committee system in New Hampshire, notwithstanding the automatic discharge rule, there seems to be considerably less will or motivation to hold committees accountable than where joint committees prevail.[118]
Connecticut, Maine, and Massachusetts are like all States except Nebraska in having bicameral legislatures, but these three New England states are unique in relying mainly on joint senate-house committees. Their experience shows that the tension between bicameralism and the joint structure of committees can be a democratizing force.
Massachusetts has a joint committee structure whose origins have been traced back to the early colonial period. In Maine the joint committee system has been proven to predate the Civil War. Since Massachusetts and Maine were a single state until 1820, Maine may well have inherited its joint committee system from Massachusetts. Connecticut has a joint committee system at least 1½ centuries old, perhaps much older.[119]
Unfortunately extant colonial or post-independence records on joint committees may never yield enough information to determine the exact dates, much less the factors which led to the formation of committee systems so different from the rest of the nation. It can be surmised, however, that since the model of the great Parliament of the Mother Country lent us many of the institutions that prevailed in 18th century America, the same probably obtains with joint committees. From earliest times, joint committees of the British Parliament were appointed, each such committee to consist of members of the House of Commons and of the House of Lords.[120]
What is historically clear is that Maine and Massachusetts responded to the unique legislative milieu created by joint committees in ways substantially different than did Connecticut. In both Maine and Massachusetts today the 100 percent discharge requirement is an integral part of the legislative process, but not in Connecticut.[121] In Maine and Massachusetts (but not Connecticut) the respective houses do have a few of their own standing committees. Otherwise all legislative committees are of joint structure, with 19 joint committees in Maine, 21 joint committees of the General Court in Massachusetts, and 17 joint committees in Connecticut. The legislative system in New England puts two to four times more House members on the joint committees than senators.
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Figure 7.2 |
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Legislative Committees in New England Legislatures |
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Joint legislative |
Non-joint |
Ratio: Senator/Legislator per committee[123] |
Forced Discharge of committees |
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Connecticut 17 Maine 21 Massachusetts 19
New Hampshire none Rhode Island none Vermont none |
none House, 4. Senate, 4 House, 3. Senate, 3
all all all |
9 – 35 3 – 10 6 – 11
na na na |
often (see below) 100% of bills 100% of bills
100% of bills rare rare |
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The legislatures in Maine and in Massachusetts feature floor debates which are highly critical of committee decisions. Legislators acting from the floor are prone to oversee committees by exercising a closer scrutiny of committee reports, whether positive or negative – more so than in the three New England legislatures that downplay joint committees, i.e. New Hampshire, Vermont and Rhode Island.[124]
In the U.S. Congress no joint committees exercise jurisdiction over bills, a prerogative reserved to the 19 House standing committees and the 19 Senate standing committees.. In New England, however, there is a virtual consensus of testimonial evidence for the strong floor jurisdiction over bills by the joint committees in Maine, Massachusetts and Connecticut. This aspect of joint committees became evident after interviews with officials from all six states of New England, in addition to numerous personal observations of floor and committee activity in Massachusetts.
Despite the paucity of empirical / statistical material of relevance, I sought to compare the assembly vs. committee relationship in the three states where joint committees play no role in deciding the fate of bills, with the three states where the joint committee role is paramount. An interview with Maine's House Clerk yielded this comment: "Legislators here take pride in the fact that they really perform an active function on the floor. They rely on committees to a certain degree, but they want to take a look at it themselves."[125] The President of the Senate in Maine described "a very critical attitude on the floor toward committee reports," whether positive or negative, especially on the more significant issues.[126]
In Massachusetts – whatever one may think of the vanguard role of the Bay State in the postmodernist revolution – the means of pursuing a legislative purpose are very old and well worthy of study. An aid to the President of the Massachusetts Senate[127] noted that "fairly frequently" a senator will move from the floor to substitute the original bill for an adverse or ‘ought not to pass’ committee report.[128] Debate on the question is then "wide open." He described "a remarkable amount of independence on the floor," and noted that "what comes out of committee is not considered sacrosanct, and to amend what comes out of committee is not considered by the chair an affront." As evidence that no one knowledgeable about the Massachusetts General Court (as the legislature is called) views committee chairs as power barons, he cited the fact that special interest groups often expend time and effort to go around a committee by lobbying for supporters on the floor. If floor action was merely pro forma, the lobbyists would not bother.
The assistant senate clerk in Massachusetts also confirmed that floor activity exercises critical scrutiny of committee reports.[129] Senators often amend bills from the floor, frequently override unfavorable reports on the floor, and also send bills back to committee, said he, "quite a bit." In the Massachusetts House Clerk's office an official saw floor action as a way of defending the jurisdiction of the respective house over its own bills, especially over in the Senate which is outnumbered 11/6 in committee by House members.[130] In short, the key result of referring bills to joint committees is less committee autonomy and more accountability.
Floor debate in Massachusetts is not only a significant element of the legislative process; it is also lively and interesting to observe, especially as compared with a body like Congress where all the action is in committee. This writer will never forget his first visit to the U.S. House of Representatives, where none but two inattentive members and the presiding officer were present on the floor to hear a certain Congressman deliver his Philippic to spectators in the gallery. In Maine, by contrast, debate is described as lively in both chambers – more protracted in the 151 member house, and freer in the 35 member senate.[131]
In Vermont and Rhode Island, where there are no joint legislative committees, the infrequent success of discharge procedures reflect the greater autonomy of the committees relative to the full house or senate. Both legislatures see some amending from the floor but the great majority of bills are killed in committee and never reach the floor.[132] Of course the majority of measures must die in any legislature, but in Massachusetts the coup de grace is delivered under the democratic process, i.e. by majority rule on the floor.[133]
In Vermont some 80% of bills never emerge from committee at all, and only three or four times in thirty years has there been a successful motion from the floor to discharge a senate committee.[134] Generally the motion to discharge fails, because other committee chairmen back the committee being challenged.[135] As House clerk, Robert Picher portrayed this committee chair network, "if its Joe's bill today, tomorrow its my bill."[136]
One of the most striking indications of the willingness of the whole senate and house in Vermont to acquiesce in the relative autonomy of standing committees is the status of senate rule 30. This old rule is much like the 100% reporting requirement in New Hampshire.[137] Yet the Vermont senate has ignored its own rule for a quarter century. The secretary of the senate in Vermont has asked the senate leadership to eliminate the chronically violated rule, much as the house rescinded its equivalent of the rule in 1973, but at last check the senate rule remained on the books notwithstanding that it was far more honored in the breach than the observance.[138] The ignominious fate of a reporting requirement that favors power on the floor over power in the committee system strongly suggests that such a power relationship is abhorrent to powerful Vermont legislators.
As for bills reported favorably by committees, nearly all get enacted. The average number of bills per biennium that are defeated on the floor in Vermont is well under ten, usually two or three.[139] In 1992, the Vermont senate defeated only two bills outright, and one of those was a bill from the house of representatives. It is much easier in Vermont to send a bill back to committee in hopes that it will die there then to defeat it on the floor.[140]
However the amending process on the floor is quite free, and the Vermont legislature does adopt substantiative as well as technical amendments. Robert Gibson, longtime Secretary of the Senate in Vermont, attributed this sign of life on the floor to the unusual number of coalitions which form along philosophical rather than partisan party lines. The willingness to cross party lines is reflected also in the election by Republican majorities of several Democrats as speakers of the house, and the willingness of the majority party in the senate to fill committee chairs with members from the other party.[141]
Nonetheless, floor activity in Vermont does fit the mold for dual committee system legislatures in terms of the great rarity of discharging committees or defeating "do pass" reports.
In Rhode Island, the legislators at work are the legislators in committee, but seldom on the floor. It is highly unusual for a bill to emerge from committee and then be defeated on the floor. Major substantive amendments "can happen" but are "quite rare," and controversial amendments are normally tabled.[142] In the case of the 2/3 to 3/4 of bills that are killed in committee, resurrecting a bill by forcibly discharging it from committee and putting it on the calendar of the Rhode Island house for a floor vote is a very formidable undertaking, requiring the signatures of forty percent of the floor membership.[143] Only two such discharges occurred in the 16 years researched.[144] An additional procedural appeal from pigeonholing in Rhode Island can force a committee to take a vote, but the success rate in terms of bringing bills up for a floor vote is in the same range as the petition by forty percent.[145]
The parallel to New England's neighboring state of New York is striking, where my study found that more than a decade had passed since the last time anyone on the floor introduced a successful motion to discharge a committee.[146] Similarly in the U.S. House where an average of but one bill every four years is discharged from the standing committee system.[147]
Vermont and Rhode Island provide empirical refutation to one of the main arguments by conservatives in favor of committee autonomy, namely the claim that power to keep bills from reaching the floor checks the tendency to pass too many laws and to overspend public funds. In fact, however, a legislature that fails to check pigeonholing is generally also a legislature that rarely defeats "ought to pass" committee reports.
Connecticut's way of handling joint committees differs from the Massachusetts/Maine system and is considerably more complex. Instead of imposing 100% reporting requirements on all joint committees, the formal discharge procedures are prohibitively difficult.[148] Like Rhode Island, Connecticut requires signatories on discharge petitions [50% plus one] which is a buttress to committee autonomy and a real obstacle to enforcing accountability of committees to the floor. On the other hand, the entirely joint structure creates tension that is contrary to the centrifugal outflow of power to committees as intra-house oligarchies, and that encourages floor scrutiny of bills. In Connecticut the coexistence of these two opposing principles — centrifugal outflow of power to committees vis-a-vis the centripetal tendency of the full House or senate to hold joint committees accountable — have given rise to some unique institutions.
The joint committee structure is a bit like a boiler and the discharge procedure like the safety valve. If someone closes the safety valve and welds it shut, the steam will build up pressure and eventually force its way between the boiler plates. A like case of political pressure builds up in Connecticut, where as much as 3/4 of the bills introduced are boxed[149] (not reported from committee), in dramatic contrast to the 100% discharge rules in Maine/Massachusetts. Demands that the Connecticut house control house bills, and the senate retain jurisdiction over the bills submitted by senators, cannot be contained forever and come to the fore notwithstanding the absence of a facile formal discharge procedure. One of the ways Connecticut legislators on the floor manage to extricate bills from committee is by gutting all the words but the title from a minor bill already reported to the floor, and then substituting language identical to another bill that a committee has pigeonholed.[150]
Another unique feature in Connecticut is the practice of having co-chairs for each committee.[151] With every committee chaired by both a senator and a house member, combined with the rarely used rule which allows the house or senate membership of a committee to report separately,[152] Connecticut has created its own alternatives to the 100% discharge rules of Maine and Massachusetts.
Foremost among these alternatives is the free and open amending process from the floor. In addition to using a reported bill for the purpose of gutting and substituting as described above, there is the much more common practice of introducing substantive amendments to a bill that has been favorably reported by a committee. Connecticut's house clerk estimates that floor amendments (not all substantive) are adopted on 60 to 70 percent of the bills that eventually pass the house.[153] In the senate, however, floor action largely reflects what takes place on the floor of the majority caucus.
In their determination to oversee joint committee systems, three New England states differ more in method than degree. While Connecticut differentiates its legislative procedure from that of Maine and Massachusetts, all three states are in the same league in terms of demanding committee accountability and reducing autonomy. Committees remain the workhorses, but in harness.
Under the constellation law, the same principles ought to operate within Congress in much the same fashion, but on a larger scale. Congress will continue to do most legislative work by relying on the investigative capacity of committees. The joint structure of standing committees would, however, prod the Senate and House majorities to hold the congressional committee system accountable. As accountability to the parent assembly waxes, rule by committee oligarchies will wane.
C: Leadership vs.
headship in revitalizing the assembly
If each assembly is to be an effective supervisor of the work performed in its committees, then the unique power inherent in genuine leadership will have to be liberated and mobilized. The congressional process must become a more favorable milieu for the two kinds of floor leadership known as "transactional" and "transforming." According to James MacGregor Burns,[154] the transactional leader superintends and facilitates legislative exchange when the assembly is utilized essentially as a trading arena. The "great compromiser," Henry Clay, was such a leader. Other circumstances call for the transforming leaders, like Daniel Webster or Winston Churchill. They inspire and guide the legislative body into innovative courses which otherwise most legislators would not independently pursue, or perhaps even aspire to. Both transactional and transforming leadership acts as a unifying force in a legislative assembly, with a coming together of the leader and his followers in pursuit of a joint purpose.
Leadership is more powerful, more inspiring, and gives rise to more productive energy than bureaucratic headship.[155] The latter relies on domination through the power of the office.[156] Headship carries a cudgel; leadership a wand.
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The Mace, U.S. House of Representatives |
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Today’s House of Representatives has enshrined the wand in a trophy case, as it were, while ongoing use of the cudgel is seen in the bureaucratic dominion of committees, and in the powerful sway of committee chairmen. Significantly, the official symbol of authority in the House of Representatives is the mace. Genuine leaders encounter an all embracing committee structure that limits rather than extends the scope of genuine leadership.[157]
As Alexis de Tocqueville observed more than a century ago, "administrative despotism" imposes "a network of small complicated rules, minute and uniform, through which the more original minds and the most energetic characters cannot penetrate, to rise above the crowd."[158] The bureaucratic monopoly shackles or subdues leaders, preventing them from employing their great gifts. As John F. Kennedy recalled his three terms in the U.S. House of Representatives, "'we were just worms there.'"[159]
The aim of the constellation law is not, of course, to abolish the bureaucratic machinery of Congress but to make it more accountable. Bureaucracy has its proper and indeed essential role in government, including the legislative branch. But that role ought to be a clearly subordinate one relative to the assembly. It is the bureaucratic dominance, not the bureaucratic function itself, that the constellation law would abolish. The committee system will remain a reservoir of expertise, both influencing and elaborating the policy directions determined in the full House and Senate.
The emergence of great floor leaders requires that the antithesis of genuine leadership, administrative force or bureaucracy, be compelled to relax its stranglehold on the congressional process. The restoration of assembly supremacy will break the power of bureaucracy without destroying its utility as a servant. On the floor and in elected assembly officer posts, leaders will then begin to exercise their unique kind of power — the energy generated by inspiring enthusiasm among followers, and by marshaling resources that spring from human drive and ability as opposed to bureaucratic rank.[160] Only such leadership can spur and draw forth the energies and unified efforts essential to fully revitalize the assembly. Releasing this extraordinary power of leadership is a key to transforming the assembly from a figurehead to the de facto central authority presiding over the committee system.
After assembly leadership along "transactional" and "transforming" lines does emerge, a coherent legislative program can become the norm, with the committees putting the flesh on the bones of each full chamber's agenda.[161]
Legislative initiatives would not, however, be independent of how and where the President leads. Transforming leadership within the legislative branch will normally, though not always, be most effective in cooperation with leadership by the Chief Executive.[162]
Another means to improve the exercise of assembly leadership is the fortnight committee (constellation law, section 2:3). Although innovative as regards the U.S. Congress, rotational committees are well precedented in early European republics.[163] And one of the standing committees of the American continental congress, the "committee of the week," was rotated every Monday.[164]
The constellation law provides that in fortnight committees, membership will rotate at a speed of 14 days. The rapid rate of turnover will remove the incentives to expand committee boundaries, thus checking any inordinate ambitions of committee members. Over time a standing fortnight committee will, by turns, include the entire assembly membership; so that such committees will be the safest of subordinate bodies for the assembly to trust. Therefore, fortnight committees will be highly useful, especially as units trustworthy enough to coordinate internal operations. A steering committee might well be a fortnight committee. Other functions of fortnight committees might include a committee that weeds out the redundant or weak bills prior to reference; also a rules committee, and a committee on committees which instructs and oversees the whole committee system.
Under section 2:3 the leader of the House or Senate is at the same time to be the nonvoting chairman of fortnight committees. Thus the chair will connect such committees directly to the assembly leadership, and will facilitate committee-assembly coordination. Also the chair will provide continuity and permanence to counterbalance the rapidly rotating voting membership of the fortnight committees.
The fortnight committees are ideal for administrative tasks which require basic intelligence and common sense more than expertise in particular areas, or prolonged investigation. Efficient organization calls for putting certain delicate powers in the hands of small groups, in that the full assembly is too ponderous to perform detailed organizational work. Here is the historic and oft repeated organizational dilemma — the administrative need to delegate authority which would neither be safe if held very long by a few, nor effective if committed to the whole legislative body.[165] Fortnight committees will resolve the dilemma by allocating the most delicate powers to the entire assembly by turns.
Today's system of dispersing power to committees subdivides the power of Congress in a manner comparable to the old Articles of Confederation, which weakened the Union by permitting the virtual independence of the original 13 States. So too the centrifugal dispersion of congressional power into many standing committees has undermined the authority and operability of the legislative branch, by dividing each house of Congress into semi-autonomous components. It is noteworthy that the British House of Commons has carefully subordinated its standing committees, and that all bills remain under control of the parent body.[166] A few hours observing the lively floor debate in the House of Commons is enough to verify for anyone who has witnessed the contrast with floor debate in the U.S. House, that on our side of the Atlantic bureaucracy has stultified and suppressed the democratic process.
The constellation amendment, sections two and three, will establish both the machinery and the self-interest for the full House and Senate to keep the congressional committee system no more than advisory, in short to regain command of the legislative agenda. A key ingredient in revitalizing the two assemblies is opening paths for the exercise of genuine leadership on the floor. The internal reform package — including a facile discharge procedure, a straightforward system of majority rule, and subordinated committees — will free natural leaders from their bureaucratic straightjackets. By liberating their powers of leadership, Congress will become more efficient, and also better able to inspire the country.
Election of Committee
Chairmen
The constellation law, (section 2: 7-10) would authorize committees of Congress to elect their own chairman and other committee officers. Although the assembly leader would occupy the chair in fortnight committees, all other committees and subcommittees would elect their own hierarchies.
At this writing the hierarchies of both House and Senate standing committees are arranged primarily by seniority. From 1955-1994, years of Democrat party control, and since then under the Republicans, the chairmen of committees in the House have usually been highly senior members named by the Steering and Policy Committee of the majority party, unless the choice was disapproved (a rare occurrence) by the governing party’s House caucus.[167] This process has allowed the respective committee member a minor voice in electing his committee’s leader / headman, i.e. no more than other members of the caucus – most of who do not even serve on the committee in question.
Over in the Senate tradition has long allowed the most senior majority party member of the respective committee to assume the committee chair. This tradition changed, however, under laudable reforms implemented by the Republican Conference [the Senate Republican caucus]. Under the 1997 reforms, the Republican members of each committee nominated their own chairman or ranking member by secret ballot; with every nomination subject, however, to confirmation by the full Republican Conference of the Senate, also by secret ballot.[168]
For a House subcommittee chairmanship – excepting in the Appropriations Committee – the subcommittee members have no vote in naming their leader. Still, the process is not altogether arbitrary. At one time the Democrat Party committee caucus allowed members of the parent committee to bid for subcommittee posts in order of seniority, with the Democrats on the House committee caucus reserving the option of approving or rejecting a bid.[169] One of the undemocratic features here was that but one candidate at a time came before the electors, and the first bidder was usually rubber-stamped. Competitive balloting between at least two candidates – as we have it at the polls – is a procedure less vulnerable to the automatic ratification syndrome that tends to characterize simple yes or no votes on a single candidate.
Many of the foregoing procedures together with the pervasive milieu of seniority, impose upon committee work a hierarchical structure often inferior to the natural hierarchy of leadership that would emerge under democratic style committee elections. Every committee member today is ranked according to his seniority, tenure even determining one's seat at the committee table.[170] Thus committees work under a headship based on longevity and political survivability in the home district, rather than under a leadership based on colleagues' trust and superior expertise in committee matters.
Just because the committee system has many characteristics of a bureaucracy, does not require the quashing of intra-committee leadership.[171] Without leadership the committee system must perform as the most ineffective of bureaucracies, because hierarchical force is contrary to the peer relationship between Senators or between Congressmen. No chairman can remove from Congress – or rarely from his own committee – an insubordinate committeeman; whereas in private enterprise a top industrial bureaucrat is at least empowered to fire recalcitrant subordinates. In congressional committees, therefore, the restricted ability of high ranking members to coerce fellow members requires more of the inspirational and persuasive power inherent in leadership.[172] If a committee chairman is also the group's natural leader, he (or she) can employ moral example, political astuteness, and personal persuasion to draw forth enthusiasm and hard work from his fellow committeemen. This transformation from a bureaucratic committee system based on headship to a quasi-bureaucratic one based on leadership will, we can expect, enhance the working efficiency of Congress.
Leadership is the art of getting
someone else
to do something you want done
because he wants to do it.
Dwight Eisenhower
A true leader himself creates the
obedience of his own followers;
as it is the last attainment in the art of riding to make a horse gentle
and tractable, so is it of the science of government,
to inspire men with a willingness to obey.
Plutarch, Lycurgus
The system most likely to elevate genuine leaders is one that takes into account the identity of the respective followers. The leader-follower relation is an interaction, from superior to subordinate and visa versa, toward a joint purpose.[173] And as Charles R. Holloman has observed, natural leadership requires group acceptance; the authority of the real leader is received from the group, i.e. elected from below not delegated from above as in headship.[174] Human judgment is fallible, of course, and no system will guarantee that the best leader always sits at the summit of a given political hierarchy. But over time, the political system which recognizes leader-follower associations, and thus most often puts true leaders on top, is a system whereby the respective followers freely elect their own hierarchy.
Take the House, for example, which the majority party controls, thus giving them a majority on each committee. The majority party members on the committee in question are in a better position to judge ability on committee matters, and to elevate the real leaders of that committee, than are more distant groups like the party Steering and Policy Committee or the House Caucus of the majority party.
The latter have less awareness of day to day performance and leader-follower relationships than do the members of the respective committee. Moreover, since a committee will surely want to support its own decisions on bills discharged to the full chamber, a committee membership will have a propensity to prefer the leaders who are also effective floor spokesmen. This role of committee leaders on the floor will promote the elevation of committee chairmen who can exercise leadership in the assembly as well as within their committees, and thus secure a point of convergence between assembly leadership and committee leadership in Congress.
Electing chairmen will also make the committee system one of consent. Undemocratic hierarchies, never confirmed by the respective subordinates, tend to rankle with members and promote footdragging — especially in traditionally self-governing societies like ours where most people regard free elections as superior to backroom selection by petty dictators.
In short, democratizing the selection of committee and subcommittee hierarchies will improve supervisor-subordinate relationships in the committee system of Congress. Free elections will make committee chairmanships more akin to genuine leadership, and thus promote the working efficiency of the Legislative Branch.
Regarding the mechanics of committee elections, section 2:10 provides for the election of committee officers by secret ballot and majority decision, and for fixed terms in the committee hierarchy.
Balloting for election of officers conjures up personality conflicts to a greater extent than during resolution of a particular bill. The secret ballot in elections of committee officers will therefore reduce political bloodletting. By helping members of Congress remain noncommittal in the face of logrolling efforts, the secret ballot will make it easier for each committeeman to vote his conscience, basically for the same reason that citizens find it easier to ignore peer pressure in the voting booth than in a public show of hands. Also insofar as the secret ballot diminishes the effect of political arm twisting, it will favor the election of real leaders. Trust is a key component of legislative leadership,[175] and the secret ballot is a better measure of an electorate's trust in a candidate than public voting, which gives considerable weight to the fear of political reprisals.
The constellation law (2:10) provides also that committee hierarchies be chosen by the voting majority. Under plurality decision, 35 percent wins the office if the rest of the field finishes at 30, 20, and 15 percent. Thus a member may take the Chair when nearly 2/3 of the membership voted for someone else. Unlike plurality victories, securing a majority for one candidate may take more than a single session of balloting. Sometimes several ballots are necessary just to narrow the field down to two candidates. Balloting ends when one candidate receives more than half the votes cast.
The problem with plurality decisions is that they permit hierarchies that may be revolting to the majority, and thus unproductive of leadership. Although pluralities are quick and easy to obtain, it is well worth the trouble to have committee officers backed by majorities.
Finally, section 2:7-8 sets fixed terms for the officers in the committee hierarchy. A term at least 11 months in duration,[176] with reelection permitted indefinitely, will give the chairman a securer base for the exercise of leadership than if the committee majority could remove him during controversies. It will take a two-thirds vote of the committee to remove a committee officer before the scheduled expiration of his term.
The Republican caucus rules of 1995 that forbad renomination of House and Senate committee chairmen for more than three consecutive terms will still be legal.[177] For section 2:8 leaves incumbent chairmen reeligible, but in no way supersedes the intra-party nomination process that takes place in a House Republican or Democrat caucus prior to the election. If the party prefers an informal rotation, the incumbent chair will have trouble winning without the support of his fellow party members on the committee.
Chapter Summation
A key purpose under preamble I of the constellation amendment is to restore balance to the federal system. The postmodernist revolution has hastened the decline of the Legislative Branch, relative especially to the federal bureaucracy and the Judiciary. Several factors have contributed to congressional decline. Among the causes is the failure of Congress to win the confidence of the present generation of citizens.[178] The constellation law addresses the decline of popular respect for Congress by upgrading its internal procedures, by promoting genuine leadership, and by democratizing the chamber which is most amenable to democracy – the House of Representatives.
Another factor in the relative decline of Congress is the chronic bureaucratic bloat, numbering by mid-2000 some 3.3 million executive branch civilian federal employees, more than twice the total personnel in the U.S. Armed Forces. The intrusion of appointed federal agencies into the jurisdictions reserved for the Legislative Branch has become chronic. Under the constellation law, a small but potent force of 435 tribunes will operate as assistants to the Vice-President in effecting bureaucratic reductions. Tribunes will help in reducing both the size of the civil service and the number of federal regulations. Being biennially elected and serving in rotation, tribunes will constitute a democratic leaven within the appointive bureaucracy. Simultaneously they will serve as ombudsmen on the constituents' behalf. Moreover, the biennium in the tribunate, with its hands-on experience in the bureaucracy, will educate each 435 for their subsequent efforts as Congressmen, when they exercise legislative oversight over federal agencies.
Thus the modus operandi for subordinating the bureaucracy will be a dual one. Federal bureaus will become accountable to the Vice-President with his tribunes, as well as to the Congress consisting mostly of former tribunes.
A major manifestation of the congressional decline relative to the rest of the federal system has been the steady encroachment upon the law-making function. Here the Judicial Branch has been even more usurpatious than the federal bureaucracy. The U.S. Supreme Court has perpetrated a power grab, imperiling the republic by trampling underfoot the vital principle that “ours is a government of laws, not men.” In usurping legislative powers, which the Constitution entrusts to Congress alone (Article I, section 1), the politburo of nine is guilty of nothing less than high level theft. The thievery will continue as long as Congress remains hobbled, inefficient and disrespected.
In order to check lawmaking by judges and by appointed officials in the bureaucracy, it is necessary first to clear Congress of committee autonomy and other restrictive internal procedures. The constellation law, sections two and three, take four approaches: (1) limiting dilatory tactics and restoring majority rule on the floor; (2) making the standing committee system accountable to the parent bodies; (3) having committee chairs chosen democratically and in conformity with principles of true leadership; and (4) revitalizing the parent assemblies by directing motives of political self-interest toward activities in the full chamber, and by opening the procedural doors to the unique force of floor leadership. Restoring the authority of the two central assemblies will permit unified, coherent action by Congress, thus enhancing the ability of the Legislative Branch to play its constitutional role more effectively and vigorously.
In short, the constellation amendment would renew the federal system and restore its balance by encouraging true leadership, subordinating bureaucracy, and revitalizing both houses of Congress.
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Archival Footage, 1997
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ENDNOTES
[1] Robert H. Bork, Coercing Virtue, The Worldwide Rule of Judges (Washington, D.C.: American Enterprise Institute Press, 2003), pp. 2, 13. Bork’s professional credentials are impressive: Circuit judge, U.S. Court of Appeals for the District of Columbia Circuit, 1982-1988; nominated by President Reagan to the U.S. Supreme Court, 1987; Professor, Yale Law School, 1962-1975 and 1977-1981; Solicitor general, U.S. Department of Justice, 1972-1977; Acting attorney general of the United States, 1973-1974; Private law practice, 1954-1962
[2] Ibid., p. 9.
[3] Ibid, p. 136.
[4] Jefferson quoted in Voices of the American Revolution by the Peoples Bicentennial Commission (New York: Bantam Books, 1975), p. 140.
[5] On judicial usurpation see, in addition to his definitive Coercing Virtue, supra, Robert H. Bork, Slouching Towards Gomorrah: Modern Liberalism and American Decline (New York: Harper Collins, 1996), chapter six and pp. 318-21.
[6] Sen. Orrin Hatch & Sen. Jim Talent, “The bench vs. people,” joint article in The Washington Times, 17 May, 2004, quoted in article by state rep. Ed Emery, “Judges continue to usurp legislative power,” Joplin Independent, 15 June 2004. http://www.joplinindependent.com/display_article.php/e-emery1087153864
[7] Ibid.., pp. 115, 117, 119. Thomas Jefferson, Letter to John Adams, 21 Jan. 1812. "A letter from you (Jn. Adams) calls up recollections very dear to my mind. It carries me back to the times when, beset with difficulties and dangers, we were fellow laborers in the same cause, struggling for what is most valuable to man, his right of self-government." (emphasis mine)
[8] For coverage of the crushing of Justice Roy Moore, see for example, WSFA.com, channel 12, Montgomery, Alabama, August 20-22, 2003.
[9] Chuck Baldwin, “Showdown in Montgomery,” The Covenant News, 22 August 2003. In 2004 Rev. Baldwin was the vice-presidential standard bearer for the Constitution Party.
[10] This attorney has been writing legislation in Olympia for many years.
[11] Parenthetical clarifications mine. This gentleman has practiced law for many years, in Missouri & Colorado; also in county and state government in my own state of Washington.
[12] Justice Roy Moore’s speech delivered to supporters, on the steps of the Alabama state judicial building, August 21, 2003. The official Alabama motto dates from 1923: "Audemus jura nostra defendere." Also translated, “We Dare Maintain Our Rights"
[13] John Geddes Lawrence and Tyron Garner, Petitioners v. Texas, June 26, 2003; a 6-3 decision [Rehnquist, Thomas, Scalia dissenting]. Available online. “Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government” (majority opinion by Justice Kennedy; emphasis mine). Justice Scalia’s dissent in the same case states: “nowhere does the Court's opinion declare that homosexual sodomy is a "fundamental right" under the Due Process Clause.” On the distinction (if any) between a full right and a fundamental right, see below, chapter ten, endnote 16.
[14] "Considerations Regarding Proposals to Give Legal Recognition to Unions Between Homosexual Persons," 10, dated June 3, 2003, by the Congregation for the Doctrine of the Faith, and approved by the Pope earlier in the year: “When legislation in favor of the recognition of homosexual unions is proposed for the first time in a legislative assembly, the Catholic law-maker has a moral duty to express his opposition clearly and publicly and to vote against it. To vote in favor of a law so harmful to the common good is gravely immoral.”
[15] Bowers v. Hardwick, 478 U.S. 186 (1986). Available online.
[16] See the poem, Adulteration by Adjudication, above in chapter three.
[17] Two examples of treasonous / globalist thinking from the Bench in 2003:
(1) AP, August 4, 2003: “The U.S. Supreme Court is looking beyond America's borders for guidance in handling cases on issues like the death penalty and gay rights, according to Justice Ruth Bader Ginsburg. The justices referred to the findings of foreign courts this summer in their ruling that states may not punish gay couples for having sex….‘Our island or lone ranger mentality is beginning to change,’ Ginsburg said Saturday during a speech to the American Constitution Society, a liberal lawyers group holding its first convention.” Justices ‘are becoming more open to comparative and international law perspectives,’ said Ginsburg, who has supported a more global view of judicial decision making. ‘While you are the American Constitution Society, your perspective on constitutional law should encompass the world,’ she told the group of judges, lawyers and students.” [AP online, 8/4/03, “Ginsburg: Rulings in other countries are relevant here,” http://www.concordmonitor.com/stories/front2003/ginsburg080403_2003.shtml].
(2) …“whether our Constitution and how it fits into the governing documents of other nations, I think will be a challenge for the next generations.” [Quotation from Justice Stephen G. Breyer, ABC television program, “This Week,” July 6, 2003, quoted in, John H. Cushman, Jr., “O’Connor Indicates She Will Remain on Court,” The New York Times, 7 July 2003, p. A9.]
[18] Appeals Court of New Jersey, Mark Lewis, et. al. v. Gwendolyn L. Harris, etc., June 14, 2005, p. 15, citing Singer v. Hara, 522 P.2d 1187 (1974), Wash. State Ct. of Appeals. (Note: pagination in this document begins anew for the concurring and the dissenting opinion). The majority opinion is written by Judge Stephen Skillman of Trenton with Judge Anthony J. Parrillo of Trenton concurring. On Oct 26, 2006, however, the NJ Supreme Court overturned the appeals court on Lewis v. Harris, and mandated the equivalent of same-sex marriage.
[19] Lewis v. Harris, dissenting opinion by Judge Donald E. Collester of Morristown, p. 20. It may be worth noting that Judge Collester employs the word “tirade” [p. 25, fn. 5] in addressing U.S. Supreme Court Justice A. Scalia’s dissent in Lawrence v. Texas (2003).
[20] Lewis v. Harris., majority opinion by Judges Skillman and Parrillo, pp. 11-12. [Note: legal citations by the NJ Court of Appeals are omitted from the quotation in text].
[21] Lewis v. Harris., concurring opinion by Judge Parrillo, pp. 9-10.
[22] In ballot measures during 2006, seven of eight states [Arizona excepted] passed defense of traditional marriage referendums. The approving states were: Colorado, Idaho, South Carolina, South Dakota, Tennessee, Virginia, Wisconsin. On general election day, 11/2/04, voters in 11 states approved constitutional amendments limiting marriage to one man, one woman. The amendments won in Arkansas, Georgia, Kentucky, Michigan, Mississippi, Montana, North Dakota, Oklahoma, Ohio, Utah and Oregon. In Kentucky, Georgia and Arkansas the margin of victory was 3-to-1, and in Mississippi, 6-to-1. On September 18, 2004, Louisiana voters passed a similar constitutional amendment by a margin of 78%, and on August 3, 2004 the voters in Missouri passed a similar constitutional amendment by the margin of 70%.
[23] Declaration of Independence: …“when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their DUTY, to throw off such Government, and to provide new Guards for their future security.” (uppercase emphasis on “duty” is mine)
[24] FDR, Fireside Chat, 9 March 1937.
[25] Francis Canavan, S.J., "That Eminent Tribunal," First Things (August/September, 1998), pp. 34-39.
[26] Special keynote address by Pres. R. Reagan, November 1988, at the second annual lawyers convention of the Federalist Society, Washington, D.C.,
[28]Ex Parte McCardle, 74 US 506
(1869) at 514-515. For discussion see Notre Dame Law School professor,
Charles E. Rice, “Congress and the Supreme Court’s Jurisdiction,” Villanova
Law Review 27 (1982): 967-969.
Harvard Law
School Professor, Paul M. Bator, “Congressional Power Over The Jurisdiction Of
The Federal Courts,” Villanova Law Review 27 (1982): 1040, says, “It is
fashionable today to stress that McCardle is special and
distinguishable; nevertheless, the language of the Court in McCardle plainly
proceeded on the assumption that Congress’ power is plenary; and this is the
only Supreme Court opinion squarely on point.”
[29]In the Francis Wright case, 105 U.S. 381 (1881) at 386, the U.S. Supreme Court said: "While the appellate power of this Court extends to all cases within the judicial power of the United States, actual jurisdiction is confined within such limits as Congress sees fit to describe. What these powers shall be, and to what extent they shall be exercised, are, and always have been, proper subjects of legislative control."
[30]Frankfurter in National Insurance Co. v. Tidewater Co., 337 U.S. 582 (1949) at 655. Cited by Rice, Jurisdiction, p. 974.
In the very valuable transcripts of the panel discussion during Symposium Proceedings held at Villanova on Congressional Limits on Federal Court Jurisdiction, May 1982 ed., Villanova Law Review, pp. 1042-1076, Rice quotes former Supreme Court Justice Owen Roberts as follows [at 1043]: ‘“I do not see any reason why Congress cannot, if it elects to do so, take away entirely the appellate jurisdiction of the Supreme Court of the United States over state supreme court decisions.’” [A.B.A. Journal 35(1949): 4.]
[31]The Norris-LaGuardia Act of 1932 "provided, with certain exceptions, that no Federal court should have jurisdiction to issue an injunction in a case involving or growing out of a labor dispute." In 1942, the Emergency Price Control Act "contained a provision withholding from Federal district courts authority to enjoin the enforcement of the act." Both laws were upheld by the U.S. Supreme Court. Quotes from Hon. Clarence J. Brown, Sr. of Ohio, 110 Congressional Record 20215. Cf. Lauf V. Shinner, 303 U.S. 32 (1938)at 329-30 and Lockerty v. Phillips, 319 U.S. 182 (1943) at 186-88 as cited in Rice, Jurisdiction, p. 961.
In Dec. 2001, a pork barrel project for S. Dakota was declared exempt from owing liability to the United States. Homestake Mine Conveyance Act of 2001, S. 1389, sect. 106 (b): “LIABILITY PROTECTION- On completion of the conveyance, neither Homestake nor the State shall be liable to any person or the United States for injuries, costs, injunctive relief, reclamation, damages (including damages to natural resources or the environment), or expenses, or liable under any other claim (including claims for indemnification or contribution, claims by third parties for death, personal injury, illness, or loss of or damage to property, or claims for economic loss), under any law (including a regulation) for any claim arising out of or in connection with contamination, pollution, or other condition, use, or closure of the Mine and laboratory, regardless of when a condition giving rise to the liability originated or was discovered.”
See also, Thomas F. Eagleton, "Amending the constitution By the Back Door:
A Battle Won...But Will We Survive the War?" Journal of the Missouri
Bar 39 (March 1983): p. 124, endnote 38. Cites 47 Stat. 70
(1932). Although Eagleton is an ardent opponent of limiting judicial
jurisdiction, his work is a valuable scholarly resource for either side.
Of lesser value is the 1958 Senate report [#85-1586, 85 Congress 2,] on Sen
William E. Jenner's bill [S2646] which would have limited federal court
jurisdiction over state and local regulations of subversive activities.
Laurence
Gene Sager, Harvard Law Review 95, pp. 17-89 (1981) cites case law, esp.
Ex parte Yerger, 75 US 85 [1869], for the view that Article III, sect.
2, grants Congress only a limited authority to remove judicial
jurisdiction. At p. 89, Sager has a particular axe to grind with the
Helms bill of 1979 [limiting federal court jurisdiction over school prayer] on
grounds that it would "set a dangerous and tawdry precedent by sabotaging
the integrity of the judicial process."
[32] Robert Jennings Harris, The Judicial Power of the United States (Baton Rouge: Lousiana State University Press, 1940), pp. 72, 74, 144. The second chapter, “Power of Congress to Regulate Jurisdiction,” pp. 74-144 is well worth the reading.
[33] James McClellan, “Congressional Retraction of Federal Court Jurisdiction To Protect the Reserved Power of the States: The Helms Prayer Bill and a Return to First Principles,” Villanova Law Review 27: 1029.
[34]110 Congressional Record 20213-20221. [House Res. 11926].
[35]April 9, 1979.
[36]125 Congressional Record 7644. Later the chief council of the Senate Separation of Powers subcommittee of Judiciary, James McClellan, would write: “Without the power to regulate the Court’s jurisdiction, particularly when the court exceeds its authority by creating its own jurisdiction, Congress is helpless to limit the judicial power and the Court is exempted from the checks and balances system – sitting, like a continuous constitutional convention, rewriting the fundamental law....Certainly no society can justly call itself democratic where as few as five appointed justices, who are beyond the control of the people and their elected representatives, can determine the meaning and substance of nearly all the freedoms that the people possess. And certainly, no constitution can be said to be based upon a separation of powers or federalism when one of the branches of the national government is free to usurp the functions of the legislature and the powers of the states.” [McClellan, “First Principles,” Villanova Law Review 27: 1029.
[37] Senate bill S. 2082; House bill H.R. 3799. 108 Congress 2.
[38] HR 3313, July 22, 2004.
[39] Carl Hulse, “House Passes Court Limits on Pledge,” New York Times, online ed., September 24, 2004. During the next Congress, July 19, 2006, the House passed an essentially identical bill (HR 2389) by a margin of 61 % (260-167).
[40] 23-24; Aristotle, The Politics 2.11. On the role of the Council of 104 in Carthage [sometimes called simply the Hundred] see: Justin 19.2.5 and Livy 33.46.4; Serge Lancel, Carthage: A History (Oxford: Basil Blackwell, 1995), pp. 114-116, 403; Gilbert & Colette Picard, The Life & Death of Carthage, tr. Dominique Collon (London: Sidgwick & Jackson, 1968), pp. 141-46; B.H. Warmington, Carthage (London: Robert Hale Limited, 1960), p. 196; R. Bosworth Smith, Carthage and the Carthaginians (Longmans, Green, & Co., 1913), pp. 23-24;
[41] Smith, Ibid. “By the old constitution, the Senate had the right to control the magistrates; but this new body of judges controlled the Senate, and therefore, in reality, the magistrates also. Nor was it content to control the Senate; it practically superseded it....No Shofete, no Senator, no general, was exempt from their irresponsible despotism. The Shofetes presided, the senators deliberated, the generals fought, as it were, with a halter around their necks. The sentences passed by the Hundred, if they were often deserved, were often also, like those of the dreaded “Ten” at Venice, to whom they bore a striking resemblance, arbitrary and cruel.” [Smith, p. 24]. CF. Justin 19.2.5.
[42]As Chief Justice Robert Donnelly of the Missouri Supreme Court said in a 1982 debate with Sen. Thomas Eagleton, "I have become more and more disquieted by the progressive tendency of the Supreme Court of the United States to identify its moral convictions with constitutional imperatives – substituting the justices' personal predilections for the governing law." Bar Leader, (July-August 1982), vol 8, p. 6. James McClellan adds that the issue is not simply what our rights are, but who is to say what they are. [McClellan, “First Principles,” Villanova Law Review 27: 1021.
[43]"Legislative and Judicial Attacks on the Supreme Court of the United States – A History of the 25th section of the Judiciary Act," American Law Review 47 (1913), p. 187.
[44]If a court stripping bill passes during the 12½ months between the beginning of a House term [Jan. 3rd, of an even year] and the inauguration [Jan. 20th, of an odd year], then the House membership would still be incumbent after the law lapses on inauguration day, and under this timetable Congressmen (in the House) would have 11½ months to re-pass their own bill before they themselves get rotated out of the House. But approval by a newly elected (or reelected) President and Senate would still be requisite to the bill's reenactment into law.
[45] Villanova Symposium Proceedings, 1069-70.
[46] Rice, “Jurisdiction,” Villanova
Law Review 27: 962-76 makes the case for the plenary power of Congress
under article III, section 2. Cf. Bador, 1038-41
Harris,
however, cites theories with their roots in Justice Story’s assertion that the
Court’s jurisdiction and powers derive from the constitution, not
Congress. Harris laments that such theories have beclouded the issue to
such a degree that doubts have arisen even regarding the power of Congress to
limit jurisdiction over courts of its own creation, namely the district and
appellate federal courts. The idea that there is a stream of power into
the vessel of jurisdiction whose flow cannot be interrupted, is, says Harris,
primarily the invention of attorneys, in and out of Congress. This theory
“represents the lawyer’s ideal of a government in which doctrinaire legalism
dominates politics and in which lawyers take precedence over
politicians.” Harris, Judicial Power, pp. 86-87, 100, 118-20, 124.
[47] Symposium Proceedings, 1072.
[48] Bador, 1033-34, 1038; Rice961-62. Says Rice, “State courts are available and adequate formus for vindication of rights created by federal law in the event of a divesture of lower federal court jurisdiction. State courts are bound to apply federal law by the supremacy clause, and thus there is no danger that federal rights will be diluted.”
[49] Says Bator, “The trouble with the Ratner method [see 1056] is that it assumes that the Constitution contains within itself all the necessary guarantees to prevent the system’s collapse or from somehow going awry in a fundamental way. I do not think that any document can do that or do it completely with absolute ‘internal’ guarantees.” [Bator in Villanova Symposium Proceedings, 1057.]
[50] Robert H. Bork, Slouching Towards Gomorrah, p. 117, cites a conference of state chief justices who resolved unanimously to adhere to federal precedents even if Congress removed federal court jurisdiction.
[51] “There is nothing in the Constitution that makes stare decisis a constitutional doctrine. It is appellate jurisdiction that binds.” Ratner, Villanova Symposium Proceedings, 1050. The quotation is in response to the theory that removal of federal court jurisdiction would freeze existing federal precedents at that point, and would compel state courts to abide by a rigid and unchanging body of case precedent.
[52]“It is sometimes difficult to persuade students to look at the Constitution itself – really to look at it – especially if they have already picked up the current orthodoxy about what the Constitution does and does not say. Also pernicious is the general opinion, at least among supposedly sophisticated people, that the Constitution is what the judges say it is. I gather, from talking to other teachers of constitutional law and to many students who have taken constitutional law courses at one time or another, that an insistence upon an understanding of the Constitution as the principal object of a constitutional-law course is quite rare in this Country. On the other hand, I do have the impression that the student who does come to understand the Constitution, as originally designed, is far better equipped than most students to make sense of the many renderings of the Constitution produced by practical men in a variety of circumstances.” [George Anastaplo, Professor of Law, Loyola University of Chicago, www.cygneis.com/anastaplo/collections/series/samp3i.htm, March 20, 1987].
[53]"Too often, says Prof. Burns, "bureaucracies fail to acknowledge the primary relationship which is external." Thus bureaucracies may make their own survival the terminal value, and come to regard as nuisances the clients they were hired to serve. Public bureaucracies may be more vulnerable than private retail business, because Federal bureaus lack competition, dependency on clients, and often accountability. [James MacGregor Burns, Leadership (New York: Harper & Row, 1978), p. 302].
[54] As of May, 2003, there were 2,748,470 civilian federal employees. Of that total, 797,709 were US Postal Service employees; 34,295 in the Judicial Branch; and 31,509 in the Legislative Branch. The Executive Branch employed 1,884,957 non-postal service, non-military employees.
[55]See, for example, U.S. Congress, Joint Economic Committee, The Cost of Government Regulation, Hearings before the Subcommittee on economic Growth and Stabilization, 95 Congress 2, April 11 & 13, 1978; John Dillin, "Ballooning government: Can it be checked?" Christian Science Monitor, 15 May 1978, p. 17; Caspar W. Weinberger, "A View of the Federal Government," in Vital Speeches of the Day 41 (1 September 1975), pp. 676-79.
[56]Every odd numbered year, from November through December, there would be three Representatives per district —— a tribune, a member of the expiring House, and a Representative in the transition interval awaiting advancement to the House on January 3rd.
[57] http://www.euro-ombudsman.eu.int/home/en/default.htm. Since 1994 the EU ombudsman has been appointed by the European Parliament after each election to the European Parliament for the duration of its mandate. The incumbent is eligible for reappointment. The Ombudsman is chosen from among persons who are Union citizens, have full civil and political rights, offer every guarantee of independence, and meet the conditions required for the exercise of the highest judicial office in their country or have the acknowledged competence and experience to undertake the duties of Ombudsman. The Ombudsman has the same rank in terms of remuneration, allowances and pension as a judge at the Court of Justice of the European Communities. Donald C. Rowat, The Ombudsman Plan: The Worldwide Spread of an Idea (Lanham, MD: University Press of America, 1985), pp. 135-58. Rowat found that the ombudsman plan has been adopted at some level of government in every country of Western Europe except Luxembourg (p. 156).
[58]Sam Zagoria, The Ombudsman: How good governments handle citizens' grievances (Washington, D.C.: Seven Locks Press, 1988), pp. 71, 73-74, lists four States, five counties and four cities in the United States that have established permanent ombudsmen.
[59]Kent M. Weeks, Ombudsmen Around the World: A Comparative Chart, 2d. ed. (Berkeley: University of California, Institute of Governmental Studies, 1978), p. 162.
[60]Frank Stacey, Ombudsmen Compared (Oxford: Clarendon Press, 1978), pp. 92, 118, table xi. The title of the ombudsman position in France is Mediateur, and in the United Kingdom, Parliamentary Commissioner of Administration.
[61]Ibid., pp. 95-96.
[62]Congressional Quarterly's Guide to Congress, ed. Robert A. Diamond, et. al., 2d. ed. (Washington, D.C.: Congressional Quarterly, Inc.., 1976), pp. 593-94; Charles L. Clapp, The Congressman, His Work as He Sees It (Washington, D.C.: The Brookings Institution, 1963), pp. 50-55, 64-66, 75-84; Morris P. Fiorina, "The Case of the Vanishing Marginals: The Bureaucracy Did It," American Political Science Review 71 (March 1977): 179-80.
[63]Congressional Quarterly Weekly Report 35 (3 September 1977): 1855.
[64] Devvy Kidd, www.newswithviews.com/Devvy/kidd.htm, October 1, 2002. She reports that in 1994 only one member of the Senate, Hank Brown, Republican of Colorado, read the GATT treaty, expanding the power of the WTO over the U.S. economy.
[65]Clapp, The Congressman, p. 55.
[66]Fiorina, "The Bureaucracy Did It," p. 179. According to Fiorina members of Congress "hold an almost unique position vis-à-vis the bureaucracy: congressmen possess the power to expedite bureaucratic activity.” Congressional Quarterly's Guide to Congress, p. 593, reports that when a member of Congress trouble-shoots for a constituent, the matter usually receives exceptionally quick attention, and the chances improve for a disposition of the matter favorable to the constituent.
[67]Hawaii Revised Statutes, 1976 Replacement, chapter 96-9. Iowa and Nebraska both authorize the ombudsman himself to determine the scope and manner of investigation. [Iowa Code Annotated, 601 G.9; Revised Statutes of Nebraska, 1976, 81-8, 245]. The ombudsman's title in Iowa is “citizens' aid," and in Nebraska, "Public Counsel."
[68]CQ Weekly Report 36 (23 September 1978): 2578. The $25 billion that may be lost annually through fraud or abuse in the bureaucracy represents some 10% of the $250 billion that the U.S. Government spends per year on Federal assistance programs, according to this article. On the General Services scandal of 1978 see also, CQ Weekly Report (3 February 1979): 212. As of the latter date, there had been 41 indictments and 27 guilty pleas by GSA officials and contractors on fraud and other charges.
[69]Steven V. Roberts, "The Provocative Saga of the $400 Hammer," The New York Times, national ed., June 13, 1984.
[70]City police are another occupation where work in pairs is generally more effective. Another case in point would be the 72 disciples whom Christ sent forth two by two, "as lambs in the midst of wolves." [Luke 10:1-12, 17-20]
[71]The Four Years Act (1820) authored by Secretary of the Treasury, William H. Crawford, terminated all Federal appointments upon the expiration of each Presidential term. Reappointment was a Presidential option. All the positions thus vacated constituted the great patronage, or spoils, which Presidents after Andrew Jackson distributed to the party faithful. See, especially, Carl Russell Fish, The Civil Service and the Patronage (New York: Longmans Green, and Co., 1905), pp. 66-70, 84-86.
[72]U.S. Department of Commerce, Bureau of the Census, 93 Congress 1, House document 93-78, Historical Statistics of the United States, 2 vols., bicentennial ed. (1975), 2:1102. In 1917 civilian Federal employees numbered 438,500.
[73]Dillin, "Ballooning Government," p. 17 (supra, fn. 2). My last count was in 1979.
[74]As of December 1979, the CFR had a total of 89,150 pages, not including the one volume index of 984 pages.
[75]Murray L. Weidenbaum, The Costs of Government Regulation of Business, a study presented to the 1978 subcommittee hearings of the Joint Economic Committee, pp. 33, 43-45; cf. pp. 15-16. The Federal government handled an estimated 300 billion pieces of paper annually [Weidenbaum, p. 92]. On the paperwork burden see also, CQ Weekly Report 38 (29 November 1980): 3456-58.
[76]Ins v. Chadha, 77 L Ed 2d 317 (1983) at 377.
[77]The Tenure of Office Act of 2 March 1867, prohibited the President from removing an appointee confirmed by the Senate until the Senate approved the dismissal. The Act was passed in animosity to President Andrew Johnson, as well as being an attempt by the Senate to control the patronage. In 1878 this Act, as amended in 1869, prevented President Rutherford B. Hayes from removing Chester A. Arthur and Alonzo B. Cornell from their customs and naval offices respectively; and the two men ignored the President's request for their resignations. President Grover Cleveland secured the repeal of the Tenure of Office Act on 5 March 1887. [See, for example, Fish, Civil Service, pp. 193-97, 207].
[78]A case in point was the fate of Jimmy Carter's campaign promises of 1776, with respect to reforming the Federal bureaucracy. Probably through little or no fault of Carter's, the executive branch employment grew by more than 130,000 employees during his administration. Ronald Reagan had the same problem, and his administration saw an even larger increase.
[79]For a fuller text of Jackson's observations see chapter six, fn. 68.
[80]James L. Payne, The Culture of Spending (San Francisco: ICS Press, 1991); "Why Government Spending Grows: The 'Socialization' Hypothesis," The Western Political Quarterly 44: 487-91.
[81]In the currently unlikely case, however, that the Vice President is of another political party than the President, the adversary party relationship might not hold between the V.P. and the committee of cuts. Yet the constellation law guarantees an adversary relationship between the party of the President and the five tribunes on the committee of cuts; so that any V-P will face an adversarial check via at least one of the two vetoes – by the committee of cuts or by the President.
[82]Jefferson's Manual, section 41,
states: "The voice of the majority decides; for the lex majoris partis
is the law of all councils, elections & c., where not otherwise expressly
provided." Jefferson's Manual was prepared by T.J. during his
Vice Presidency, 1797-1801, and it remains part of the official rules in each
house of Congress. [Senate Manual, section 741.13; Rules of the
House of Representatives, section 508].
Jefferson
cites William Hakewill, modus tenendi Parliamentum: or the Old Manner
of holding Parliaments in England (London: Abel Roper, 1671), p. 93:
Hakewill says, "the Law of Majoris partis is so in all Counsels,
Elections, & c., both by the rules of the Common law and the Civil."
[83]The Constitutional Convention at Philadelphia in 1787 met in Independence Hall, then the Pennsylvania state house, and sat downstairs from where the State legislature normally held session. The proximity to the Pennsylvania model (separated only by the ceiling) must have heightened the Framer's awareness of the obstructive consequences of the two-thirds quorum.
[84] “Two-thirds of the elected members constitute a quorum in each house.” Texas Legislature Online, 78th Legislature, Legislative Glossary.
[85] Nick Madigan, “On the Lam, Texas Democrats Rough It,” The New York Times, online ed., 1 August 2003; Ralph Blumenthal, “State Senate Democrats Return to Texas,” The New York Times, online ed., 12 September 2003; Washingtonpost.com, “The Soviet Republic of Texas,” October 14, 2003; p. A22
[86] Austin American-Statesman, 12 May 2003 (AP). Online edition, statesman.com.
[87]A decade of so after the Constitutional Convention, Jefferson's Manual, sect. 34, makes no mention of the possibility of more than a simple majority being required on previous question motions. For a thorough study of the filibuster, see Martin B. Gold and Dimple Gupta, “The Constitutional Option to Change Senate Rules and Procedures: A Majoritarian Means to Over Come the Filibuster,” Harvard Journal of Law & Public Policy, vol. 28, #1 (Winter 2005): 205-272.
[88] “The majority required to invoke cloture is three-fifths of the Senators duly chosen and sworn, or 60 votes if there are no vacancies in the Senate’s membership. However, invoking cloture on a measure or motion to amend the Senate’s rules requires the votes of two-thirds of the Senators present and voting, or 67 votes if all 100 Senators vote.” Christopher M. Davis, “Invoking Cloture in the Senate,” Congressional Reference Service, Report for Congress, updated 2/9/2005.
[89]On the period since 1975, see CQ
Almanac 1987, "'Trivialized' Filibuster Is Still a Potent Tool,"
pp. 47-51. According to Robert B. Dove, former Senate parliamentarian, a
major bill that lacks 60 votes simply cannot pass (p. 49). From 1975
through 1987 there were 149 cloture votes; 61 passed (41%). Most showed a
majority but less than the required 60 votes. In 1987, for example, 21 of
the 23 cloture votes had a majority in the affirmative, but only five by the
necessary margin.
On the
pre-1975 filibuster and the 60 vote reform, see CQ Weekly 33 (8 March
1975): 502-04; (15 March 1975): 545-47. During the 59 years of the
two-thirds majority requirement for cloture, filibusters were cut off but 24
times.
[90] The Senate failed to invoke cloture, 10/1/1968, on President Johnson’s nomination of associate Justice Abe Fortas to succeed the retiring Earl Warren as Chief Justice.
[91] On May 24, 2005 in his email bulletin, Rev. Brian Fischer of the Keep the Commandments Coalition used the term “Faustian bargain” to describe the Senate deal maintaining in principle the filibuster against judicial nominees.
[92] Press release by Sen. George Allen, 5/24/05. See also, Carl Hulse, “Many Republicans Are Already Eager to Challenge Agreement on Filibusters,” The New York Times, 5/25/05, online ed.
[93] Henry M. Robert, Robert's Rules of Order, 1893 ed., pt. 1, art. VI, sect. 39, (New York: Pyramid Books, 1967), pp. 76-77. The 1893 ed. is similar if not identical to the original 1876 ed.
[94] The current limit on Senate debate after a cloture motion passes is 30 hours, down from the 100 hours previously allowed.
[95] Robert Michels, Political Parties: A Sociological Study Of The Oligarchical Tendencies Of Modern Democracy, trans. Eden and Cedar Paul (New York: Hearst's International Library Co., 1915), pp. 390-92, 400-02.
[96] Ralph Volney Harlow, The History of Legislative Methods in the Period Before 1825 (New Haven: Yale University Press, 1917), p. 222.
[97] Sir Thomas Smith, De Republica Anglorum, (1562-1566] quoted in K.R. Mackenzie, The English Parliament (Harmondsworth, Middlesex: Penguin Books, 1950), p. 46: “But the agreement of these committees is no prejudice to the House. For at the last question they will either accept it or dash it as it shall seem good, notwithstanding that whatsoever the committees have done.”
[98]Harlow., p. 223.
[99]Ibid., p. 226. In 1815 two of the House standing committees acquired the power to report by bill. [Annals of Congress, 14 Congress 1, p. 377]. By 1822 all House standing committees had this power. House rule 55 stated: "The several standing committees of the House shall have leave to report by bill or otherwise." [House Journal, 17th Congress, p. 727]. See also Hind's Precedents in the House of Representatives, vol. 4, sect. 3365.
[100] Burns notes that the American standing committee system is much more independent as a legislative force than the various committee systems abroad. [Burns, Leadership , p. 360].
[101]George B. Galloway, History of the House of Representatives (New York: Thomas Y. Crowell, 1961), pp. 99-100.
[102]Ibid., p. 75-78; Harlow, Legislative Methods Before 1825, p. 222. Today, under House rule XI, bills are referred to committee automatically.
[103]Galloway, History of the House, pp. 76, 92; Joseph Cooper, The Origins of the Standing Committees and the Development of the Modern House (Houston, Texas: William Marsh Rice University, 1970), Rice University Studies, vol. 56, no. 3, p. 24; Annals of Congress, 9 Congress 1, pp. 409-412.
[104]Congressional Globe, 40 Congress 2, p. 229; Hind's Precedents, vol. 4, sect. 4693, and Cannon's Precedents in the House of Representatives, vol. 7, sect. 1007. Also see Congressional Record, 48 Congress 1, pp. 964, 973, for Kentucky Congressman Oscar Turner's speech of 1884 on behalf of the rights of the majority vis-à-vis committees.
[105]House rule XXVII, sect. 4.
[106]Calculated from index in Calendar of the House of Representatives and History of Legislation, final ed., Congresses 87-100. Also see CQ Almanac, 1970, p. 707.
[107] The one successful discharge petition from 104 Congress 1 through 108 Congress 1 – 1995 through 2003 – was in behalf of HR 2356 (campaign finance reform) which secured 218 signatures on 1/24/2002. Source on discharge petitions since 1997: Beginning with the 105th Congress, the House Clerk lists discharge petitions per Congress at the website, http://clerk.house.gov/histHigh/Congressional_History/index.php
[108]Professor Young refers to two indirect methods of dislodging bills from obstinate committees: referring the same or similar legislation to another committee, or offering the unreported bill as an amendment to a bill that has already reached the floor. [Roland A. Young, The American Congress (New York: Harper & Bros., 1958), pp. 117-18]. Neither of these procedures are straightforward; they entail roundabout and complicated maneuvers that raise separate issues of jurisdiction and erode support among all but the staunchest supporters of the bill.
[109]Cannon's Precedents, vol. 7,
sect. 1007, gives a short history of the discharge rules from early times to
1935. In 1910 the House established the first known discharge rule since
the Civil War. In 1924 the House passed the rule requiring Congressmen’s
signatures on discharge petitions, and the required number of signatories was
150. [Congressional Record, 68 Congress 1, pp. 944-1143]. In
1925 the House increased the signature requirement to 218. [CR, 69
Congress 1, pp. 383-91]. But in 1931 the House reduced the signature
requirement to 145 and rewrote the rule. [CR, 72 Congress 1, pp.
10-83]. Finally in 1935 the Democrats reversed their 1931 policy — they
had been disconcerted by the discharge of several bills that the House
leadership and FDR opposed — and by a vote of 245 to 166 they raised the
signature requirement to 218. [CR, 74 Congress 1, pp.
13-20]. Today's rule is identical to that of 1935.
Under the
1931 rule, 26% of the petitions filed for discharge obtained the requisite 145
signatures. Under the 1935 rule the requisite 218 signatures were
obtained on 11% of the petitions filed from 1935-1950, and on 6% of the
petitions filed from 1951-1988.
[110]The "21-day rule" applied to the Rules Committee alone; this rule was in force during 1949-1951, and 1965-1967, and it allowed the chairman of the legislative committee involved to bypass the Rules Committee and report a bill directly to the House floor, provided that three weeks had passed without a rule being reported for floor debate on the bill. [See James A. Robinson, The House Rules Committee (New York: Bobbs-Merrill Co., 1963), pp. 70, 87; Congressional Record, 81 Congress 1, p. 10; CR, 89 Congress 1, p. 21; CR, 92 Congress 1, p. H69; CQ Almanac, 1967, pp. 180-81; CQ Weekly Report 29 (29 January 1971): 257-58].
[111] House Res 134 passed the House 384-40 on September 28, 1993 after being forced to the floor via the discharge petition process. It was proposed by Oklahoma Republican, James Inhofe and backed by the Wall Street Journal and a host of talk show hosts over the opposition of the House leadership headed by Speaker Tom Foley. This rules change was only the 4th bill in 62 years to be enacted solely via the discharge process. CQ Almanac 1993, pp. 10-11
For a statistical compilation of House discharge petitions from 1931 through 2005 see, Congress and the Nation: 2001-2004 (Washington, D.C.: CQ Press, 2006), p. 914. In a reform helpful to researchers, as of 1997 (105 Congress 1) the House Clerk is required to publish all signatories to discharge petitions on the official web page. See http://clerk.house.gov/histHigh/Congressional_History/index.php.
[112]As of 1989 the Pennsylvania house of representatives had in force rule 53, an old rule which enables 25 members (12% of the house) to discharge a bill from committee by petition. This rule was seriously undermined, however, by the requirement of a "constitutional majority" to approve any resolution coming to the floor via the discharge petition. Unlike a simple majority (i.e. 50% plus one of those present and voting) a constitutional majority requires a flat 102 votes out of the 203 seats in the house, so that abstentions and absentees are the equivalent of nay votes. In lieu of the discharge petition process, therefore, Pennsylvania legislators prefer to recover bills from the committee system by attaching amendments to bills already pending on the floor. While the latter maneuver smacks of political chicanery, it requires only a simple majority.
[113] In the Massachusetts legislature, where 100% of all bills must be discharged from committee by a certain date, only about one in 40 adverse reports were overridden, and only one in six favorable reports rejected by the full legislature, during the sessions of 1941, 1943, 1945-46. See Thomas J. Wood, Distinctive Practices of the Massachusetts General Court, unpublished Ph. D. thesis, Harvard Univ., (1947), pp. 158, 166-67, 220.
[114] John C. Wahlke, Heinz Eulau, William Buchanan, LeRoy C. Ferguson, The Legislative System: Explorations in Legislative Behavior (New York: John Wiley and Sons, 1962), pp. 195, 204 (table 9.5), 214-15.
[115] Each Senate fortnight committee of seven members will include the entire Senate every 200 days. A House fortnight committee is to have 17 members, so that it will take 358 days, or about a calendar year, to rotate the entire House through the committee. This calculation does not include recesses in Congress.
[116]Public Law 79-585, sect. 15b, of 1946
authorized the nine Senators and the nine Congressmen in the Joint Committee on
Atomic Energy to report separately to their respective chambers. For the
implications of this procedure see the discussion in text on split reporting by
joint committees in Connecticut.
Public Law
79-304, sect. 5, required the Joint Economic Committee to issue its report by
each May 1. The committee has no jurisdiction over bills.
Public Law
91-510, sect. 402d, of 1970 states specifically that the Joint Committee on
Congressional Operations is not authorized to make recommendations on
Congressional rules, parliamentary procedure, practices, precedents, "or
the consideration of any matter on the floor of either House."
[117] Of the 49 bicameral legislatures, 37 have no subcommittees at all. Book of the States, 1994-95, vol 30 ((Lexington, KT: The Council of State Governments, 1994), p. 159 list only 12 states with “uniform rules of procedure” for joint committees.
[118] The remainder of sub-section B in the text is based largely on personal research and interviews that I conducted in New England in the 1970s and in 1992.
[119] Telephone interview with David Ogle, Executive Director, Office of Legislative Management, State of Connecticut, 20 July 1992.
[120] K.R. Mackenzie, The English Parliament, p. 47.
[121]Thomas J. Wood, Distinctive Practices of the Massachusetts General Court, (Harvard University: unpublished doctoral thesis, 1947), p. 176, dates the first automatic discharge rule at 1873.
[122] As of 1992 Maine actually had six
standing committees in the House: Ways and Means, Bills in the 2nd Reading,
Engrossed Bills, Rules, Leaves of Absence, Elections, but the latter two rarely
handle bills. The Senate standing comittees were Bills in Second Reading,
Engrossed Bills, Senatorial Vote and Conduct and Ethics.
In
Massachusetts, each house had three standing committees of reference: Rules,
Ways and Means, and Bills in Third Reading.
In
Connecticut, the House and Senate each had a committee on contested elections.
[123] The Senate/House ratio in joint committees is as follows: Massachusetts, 6-11; Maine, 3-10; Connecticut, a maximum of 9-35 but some are smaller.
[124]Wood (supra), p. 156, noted that Massachusetts committees "are regarded as servants of the houses and are not permitted to determine the fate of a petition other than through the report to the house...." (Italics mine)
[125]Interview in Augusta, Maine with Debra Wood, Clerk of the House of Representatives, July 30, 1992.
[126]Interview in Augusta, Maine with Charles Pray, Senate President, and Joy O'Brien, Senate Clerk, 7/30/92.
[127]Interview in Boston, 1 July 1992, with an aid for ten years to Senate President William M. Bulger. He preferred that his name not be published.
[128]Thomas J. Wood (supra), p. 158, studied four sessions during the 1940s and found 90 adverse committee reports overturned on the floor, which was 2.4% of the total adverse reports. In 1946 there were 850 adverse reports and 150 attempts to substitute the bill for the report [p. 166]. One in six favorable reports were defeated on the floor [p. 167].
[129]Interview in Boston, 1 July 1992, with Patrick F. Scanlon, then in his 17th year as assistant Senate Clerk.
[130]Interview in Boston, June 24, 1992, with James J. Twomey, Jr., clerical assistant to the House Clerk.
[131]Interviews with Charles Pray and Debra Wood [supra]. Pray noted that because senators are outnumbered 10 to 3 in committee, with only 2 senators of the majority party, "we've been very adamant" in scrutinizing reports where house members outvoted the two senators.
[132]Telephone interview, July 15, 1992,
with Robert Picher, who has been Clerk of the Vermont house of representatives
since 1963. In Vermont, some 1500 bills are introduced per biennial
session in the house; about 300 are reported out.
Telephone
interview, 6 August 1992, with Robert Gibson, Secretary of the Senate since
1967 and assistant secretary since 1963.
Telephone
interview with Elmer Cornwell, Rhode Island house Parliamentarian (supra).
Some 2500 house bills and 1750 senate bills are introduced per year in Rhode
Island. From 1/4 to 1/3 emerge.
[133]Thomas J. Wood, Distinctive Practices of the Massachusetts General Court, p. 158, estimated that about a sixth of session time is spent by the house in passing judgment on adverse committee reports.
[134]In Vermont the motion to discharge a senate committee is governed by Mason's rules of order rather than the rules indigenous to the Vermont senate.
[135]Interviews with Picher and Gibson, supra, 1992.
[136]Robert Picher, telephone interview, 11 August 1992.
[137]Senate rule 30, as adopted 3 March 1989, reads: "Each committee to which a bill shall be referred, committed, or recommitted shall report the same to the Senate within fifteen days after such reference unless otherwise ordered by the Senate. The Secretary shall print in the calendar a list of all bills which shall have been in the hands of committees for more than such fifteen days, without special order."
[138]Telephone interviews with Gibson and
Picher, 11 August 1992. On orders from his superiors, Gibson no longer
prints the list of bills for the calendar as required by rule 30.
In the House
the old rule was recinded at the specific request of Picher ten years after the
beginning of his career there in 1963. At the time he felt that since the
rule was frequently violated, and he as clerk lacked the power to compell
chairmen to obey it, then it should be eliminated. The old rule required
the reporting of bills within 15 days of reference, but alowed the rules
committee to grant one extension of ten days.
[139]Telephone interviews in 1992 with Picher, 15 July, and Gibson 6 August.
[140]Gibson, 6 August, supra.
[141]Ibid.
[142]Cornwell, supra.
[143]In Rhode Island, floor action to discharge a committee is governed by house rule 54. Until relatively recently the rule required 51 of the 100 house members to be signatories to the bill. Now 40 signatures are required. The petition is not mobile, for it must be signed at a prearranged place in the presence of the clerk. Note the similarity to U.S. House rule XXVII, sect. 4, which requires that 218 signatures, a constitutional majority, be obtained at the clerk's desk in the House chamber.
[144]Cornwell, supra.
[145]House rule 32 (e) allows four committee members or the principal sponsor of a bill to petition for a vote within the committee, but the committee can simply vote to table the bill or postpone the matter indefinitely. Only two or three bills in Cornwell's 16 years as Parliamentarian have been discharged to the floor via this rule.
[146] In New York State, Assembly rule 4:7 and senate rule 11 both make it possible in theory to discharge a bill from committee to the floor, if a majority of the full house membership so votes, but in practice this procedure is never successful. Phil Simms, who had been in the senate clerk's office for 13 years, and Tom O'Sullivan who had been 18 years in the Assembly clerk's office, both stated that such a motion had never succeeded during their respective careers. [Telephone interviews, 29 July 1992]
[147] Between the beginning of John
Kennedy's Presidency and the end of Ronald Reagan's, (1961-1988) 150 discharge
petitions were filed in the U.S. House of Representatives, and a total of just
seven gained the necessary 218 signatures. [Calculated from index in Calendar
of the House of Representatives and History of Legislation, final ed.,
Congresses 87-100. Also see Congressional Quarterly Almanac, 1970,
p. 707].
From 1931 through
September 1993, only four bills received final House approval solely through
the discharge process; 16 other bills during that period were finalized by
other means after having initially been subjected to the discharge
petition. Thus in 62 years only 20 bills were passed by the full House
against committee resistance. [CQ Almanac 1993, pp. 10-11]
[148] Connecticut Joint rule 19 authorizes
"a petition signed by not less than a majority of the members of either house
requesting a joint standing committee to report a bill or resolution in its
possession." Although Connecticut's signature requirement is more
stringent than in Rhode Island and imposes the same percentage as in the U.S.
House, the process of collecting signatures is more facile because discharge
petitions are mobile and can be circulated freely until filed with the clerk.
Perhaps by
reason of the petition's mobility, or maybe because Connecticut's activists on
the floor are more willing to petition against a committee decision than are
committee reciprocity advocates in Rhode Island, discharge petitions do
accomplish their purpose more frequently in Connecticut than in Rhode Island or
the U.S. House. Tom Sheridan who has been an official in the Connecticut
legislature for 14 years [6 house; 8 senate], estimates an average of less than
ten, and probably one or two successful discharges per session. Mary
Finnegan of the Joint Committee on Finance, Revenue and Bonding said only one
bill had been discharged to the floor in 1992 and estimates a maximum of six in
any given year [telephone interview 7/13/92].
[149] David B. Ogle, "Joint Committee Operations and Bill Procedures in Connecticut" State Government 47 (Summer 1974): p. 172, reported 6700 bills introduced in 1971 of which 1700 emerged from committee with a favorable report. In a telephone interview, 5 August 1992, he estimated 3500 bills proposed in a full session (odd years) of which 1500 are rewritten as committee bills and 600 reported to the floor.
[150] Tom Sheridan (supra) when
pressed to provide an estimate, said the tactic of gutting bills described in
text occurs in the senate much less than 100 times per session, and more like
ten, though the number varies from session to session.
Penn Ritter,
the house Clerk, [telephone interview 16 July 1992] estimated a dozen or so per
year in the house.
[151] Rules of the General Assembly of
Connecticut, adopted 1991, senate rule 18; house rule 20; joint rule 5 (c).
In Maine a
committee chair is always held by a senator, although in his absence the
committee's ranking house member presides. The ranking house member is
informally referred to as the co-chair, and sometimes is more influential than
the senator who occupies the chair.
In
Massachusetts too a senator occupies the chair of each joint standing
committee, but the Speaker of the house with the consent of the majority caucus
appoints the vice-chairman [House rule 18A, adopted 1991].
[152] Rules of the General Assembly of
Connecticut, adopted 1991, joint rule 5 (c): "...if the majority of the
committee members present of either house so request, the committee members of
each house shall separately determine all questions." Tom Sheridan
has never seen the rule implemented in his 14 years there, but the deterrent
effect of a possible split helps to maintain a spirit of collegiality in
committee. Both Penn Ritter and David Ogle confirmed the rarity of the
rule's use. Ogle thought the procedure might have evolved during the
period from the 1870s to 1966 when the two houses were divided by party, the
senate generally being Democrat and the house Republican.
In a
telephone conversation with the CT senate clerk's office, March 14, 1974, it
was indicated that the split reports had occurred with greater frequency when
the senate was under the control of a different party than the house.
Maine too
allows divided reports but actual filing of divided reports is rare.
[Interviews with Charles Pray and Debra Wood (supra)]. In both
states the value of the procedure seems to be in deterring attempts to
steamroll over the senate part of the joint membership.
See also,
Ogle, "Joint Committee Operations and Bill Procedures in Connecticut"
p. 170.
[153] Penn Ritter, supra. Tom Sheridan, the CT senate clerk, who had 6 years of house experience too, did not give percentage estimates but described "a very liberal amendment process once a bill emerges."
[154] Burns, Leadership, pp. 4, 19-20.
[155] Charles R. Holloman, "Leadership and Headship: There Is A Difference," Personnel Administration 31 (July-August 1968): 38-44.
[156] Burns, Leadership, pp. 19, 40. Where subordinates have no choice, says Holloman, "there is domination, the antithesis of leadership." [Ibid., pp. 39-40]
[157] Burns, Leadership, p. 362.
[158] Alexis de Tocqueville, Democracy in America, ed. Phillips Bradley, trans. Henry Reeve, 2 vols. (New York: Alfred A. Knopf, 1960), 2:318.
[159] Burns, Leadership, p. 354.
[160]Ibid., p. 296; also Holloman, "Leadership and Headship," p. 43, observes that leadership provides "a measure of influence and power greater than formal authority alone permits."
[161] Young, The American Congress, p. 9, observes of congressional policy making that "...the term policy is used to indicate a fixed pattern of action toward any complex, interrelated set of events. It presupposes a continuity of attitudes reaching toward agreed ends, although details of execution may readily be modified." At p. 10 Young adds that decentralization of policy making into committees, "may lessen the effectiveness of Congress as a corporate unit; its part may be confined to legitimating the action of committees...."
[162] Burns, Leadership, pp. 345, 350, 362, 367-68.
[163] One of the earliest rotational committees was the steering committee of the Athenian council of 500. The council membership was divided into ten prytanies, each of which presided one-tenth of the year over the whole council. [Aristotle, Constitution of Athens 43.2]. Other examples of rotational committees are to be found in the republics of Venice and Florence.
[164] From 1781-1785, the three man committee of the week handled communications to the continental congress and reported daily to the parent body. For the committee of the week memberships see the appendix in, Journals of the Continental Congress, ed. W.C. Ford, 34 vols. (Washington, D.C.: Government Printing Office, 1904-1937), last volumes for the years 1781, 1782, 1783, 1784. On the original rule creating this committee and its termination on August 29, 1785 see volume 29, p. 664, including footnotes.
[165] See text (Contarini), chapter six, near fn. 107.
[166] K.C. Wheare, Government by Committee (Oxford, England: Clarendon Press, 1955), p. 130; Burns, Leadership, p. 362.
[167]Preamble and Rules of the
Democratic Caucus, 101 Congress 1, January 31, 1989, p. 7. Rule 20 B
provides for a simple yes or no vote by the caucus on the nominees for
chairmanships, provided the steering and policy committee nominates either the
incumbent chairman or the ranking member. If neither the incumbent nor
the ranking member is nominated, then additional nominations are open from the
floor.
This
procedure largely reflects a reform movement that culminated in January 1975,
at the outset of the 94th Congress. [CQ Weekly Report
1974, pp. 3247, 3249-52; 1975, pp. 114-16, 210-212].
[168] CQ Weekly Report 1995, p. 2147. Under the Republican rules [Senate], where the Republican Conference rejects a nominee the Majority Leader then nominates a chairman.
[169]Democratic Caucus Rules, op. cit., p. 9 (rule 27 A). A bid rejected by the committee caucus brings on another bidder, who is next in order of seniority. Appropriations subcommittee chairman are subject to veto also by the full House Democratic caucus.
[170] Clarence Cannon, Cannon's Procedure in the House of Representatives, 86 Congress 1, House Doc. no. 122 (Washington, D.C.: Government Printing Office, 1959), p. 85; Cannon's Precedents, vol. 6, sect. 233.
[171] Burns, Leadership, pp. 298, 302, notes that leadership elements can function even in the bureaucratic milieu, "to the extent that it exemplifies conflict, power, values, and change in accordance with leader-follower needs...."
[172]Ibid., pp. 4, 19; Holloman, "Leadership and Headship," pp. 39-41, 43.
[173] Burns, ibid., pp. 4, 11, 19, 22-23. Genuine leadership is a "common enterprise," says Burns, p. 426. See also Holloman, ibid., pp. 38-40.
[174] Holloman, ibid., pp. 39-41, 43 (figure 1), 44.
[175] Burns, Leadership, p. 344. At p. 426 Burns notes that, "the chief monitors of transactional leadership are modal values, that is, values of means – honesty, responsibility, fairness, the honoring of commitments – without which transactional leadership could not work."
[176] Section 2:8 of the constellation law allows the appointment of temporary committee officers for up to a month, at the outset of a congressional year. This will permit familiarization between committeemen and the crystallization of leader-follower relationships prior to the election of permanent officers — as for example in House half-tribune committees, where many of the members would not previously have worked together. The regular election of a chairman at the end of the first month would give him a term of eleven months (or 23 months in Senate half-tribune committees) until the expiration of his term on January 3rd. He might then be reelected.
[177] CQ Weekly 53 (7 January 1995): 13; (22 July 1995): 2147.
[178] See chapter six , figure 6.3.
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