After five days and 15 floor votes, Representative Kevin McCarthy (R-CA) was elected Speaker of the House by the House Republican caucus within the early morning hours of January 7, 2023 (Karni, January 7, 2023; Foran et al., January 7, 2023; Goodwin et al., January 7, 2023; Kasperowicz, January 7, 2023). To win enough votes, Representative McCarthy agreed to a set of essential concessions in negotiations with factions throughout the Republican caucus, including changes to House rules (Edmondson, January 9, 2023; Hulse and Broadwater, January 9, 2023; Herlihy, January 9, 2023; Kasperowicz, January 9, 2023; Wagner et al., January 9, 2023; Blake, January 9, 2023; Bump, January 9, 2023). Electing a Speaker and agreeing to the principles of the House formerly and officially launches the 118th Congress. The challenges in the beginning definitely raise many questions on this Congress, but in addition they provide food for thought concerning the core concerns and issues that confronted the Framers of the Structure. Those concerns informed the design of Congress and this text continues the discussion on that design (farmdoc every day, January 5, 2023; November 11, 2022; October 27, 2022). Specifically, this text reviews the bicameral structure and double majority requirement for enacting law.
Background
To the Framers, the political power of factions was the mortal disease of self-government; the Constitutional design was intended to be a republican treatment for that disease. The treatment included the system of representation (or republican democracy) and a reliance on the concept of an prolonged republic. The important thing ingredient, nonetheless, was the structure of the federal government which channeled factions right into a political competition by which they’d check one another and control or minimize probably the most problematic consequences inherent in factional political power. James Madison memorably explained that, “[a]mbition should be made to counteract ambition” to provide “the defect of higher motives” (Madison, The Federalist No. 51). For this theory of factional competition within the political arena, the structure of the system and the way it was designed determines much about whether a contest amongst factional interests is fair, functional and effective. The foundations by which the chambers operate are also critical as they set further parameters on the competition.
Discussion
Vested with the legislative power by the Structure, only Congress has the ability to initiate the creating and amending of statutory law. To exercise that power, nonetheless, the Founders designed a posh, complicated and difficult process (Eskridge, Frickey and Garrett, 2006). In keeping with the Supreme Court, “the legislative power of the Federal Government [must] be exercised in accord with a single, finely wrought and exhaustively considered, procedure” (Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 951 (1983); Clinton v. City of Recent York, 524 U.S. 417 (1998)). Formally, that procedure requires equivalent legislative text to pass each the House and Senate before it’s presented to the President (U.S. Const., Art. I, Sec. 7). Upon presentment, the President may approve the laws, signing it into law, or disapprove of the laws by vetoing it; any veto goes through a subsequent step by which a two-thirds supermajority of every House of Congress must successfully vote to override the veto. Figure 1 includes the provisions within the Structure that created the legislative process.
Figure 1. The Legislative Process within the Structure
Fifteen of the essays in The Federalist Papers focused on the design of Congress (No. 52 through No. 66). Historians have generally concluded that Madison likely wrote a lot of the essays on this set, although authorship is commonly attributed jointly with Alexander Hamilton (see e.g., “Founders Online,” National Archives). Madison’s prelude to the discussion on Congress was his essay laying out the idea of political competition amongst factions. He wrote that “exterior provisions are found to be inadequate” for the aim of checking factional power and that “defect should be supplied, by so contriving the inside structure of the federal government as that its several constituent parts may, by their mutual relations, be the technique of keeping one another of their proper places” (Madison, The Federalist No. 51). Figure 2 provides additional passages that highlight the idea of political competition applied to the structural design.
Figure 2. Highlighting the Theory of Political Competition within the Design
The structural design is referred to as bicameralism: the legislative branch divided into two chambers—the House of Representatives and the Senate—with the design of every significantly different from the opposite. Representatives within the House were to be elected every two years, while Senators were initially appointed by State legislatures for terms of six years. Today, in fact, residents of every State directly elect the 2 Senators that represent them because of the Seventeenth Amendment to the Structure (U.S. Const., Amend. XVII). Bicameralism, then, mixes two alternative types of republican representation, channeling the political power of the citizenry through two different elected bodies. In concept, and particularly along side the idea of an prolonged republic, bicameralism was expected to make it very difficult for any factional interest to exercise control over the Article I legislative power. As highlighted in Figure 3, the 2 sides of the legislature were intended to strengthen the separation of powers.
Figure 3. Dividing the Legislative Power
Bicameralism provides the pathway for the Article I, Section 7 process highlighted in Figure 1. Requiring laws to go through two different bodies of representatives in Congress established a double majority requirement for enactment. As Madison explained it, “[n]o law or resolution can now be passed without the concurrence, first, of a majority of the people, after which, of a majority of the States” (Madison, The Federalist No. 62). Here again is a transparent application of the idea of political competition to internally manage factional powers. Two different legislative or representative bodies agreeing upon equivalent legislative text is a recipe for competition and complexity.
On this formulation, passage of laws within the House might be understood as representing the consent of a majority of the people. Members of the House are popularly elected in districts of equal size, making them probably the most closely connected with the need of the voters (Hamilton or Madison, The Federalist No. 52). The House was expected to be the source of power for the larger states, with greater membership and connected on to the voters. As such, Madison expected that the House would possess significant political benefits (Madison, The Federalist No. 58). This also magnifies one in every of the more difficult elements within the design of the House: the optimal variety of Representatives and balancing between having too few against too many. That balancing act is between what was “essential to secure the advantages of free consultation and discussion, and to protect against too easy a mix for improper purposes” and an upper limit that might “avoid the confusion and intemperance of a large number” because in “all very quite a few assemblies, of whatever character composed, passion never fails to wrest the sceptre [sic] from reason” (Madison, The Federalist No. 55). Ultimately, the matter belongs to the longer term: “[w]hat change of circumstances, time, and a fuller population of our country may produce, requires a prophetic spirit to declare, which makes no a part of my pretensions” (Madison, The Federalist No. 55). As discussed previously, nonetheless, the variety of Representatives within the House has been locked in place for nearly 100 years without regard to the vast growth within the American citizenry (farmdoc every day, October 27, 2022). Figure 4 offers additional insights from James Madison as he discussed the suitable variety of representatives within the House.
Figure 4. Perspectives on the House and Representation
Within the double majority formulation, passage of laws by the Senate is known as achieving consent of a majority of the States. While originally appointed by State legislatures, today Senators are elected statewide; each State is represented equally by two Senators. Madison argued that the design protected the interests of the smaller or less-populated States. He added that the Senate provided an “additional impediment” to strengthen against “improper acts of laws” (Madison, The Federalist No. 62). His arguments for the Senate provide a very important indication of an emphasis on the potential for factional interests to drive bad laws or laws that was harmful to the general public interest. Figure 5 highlights the double security Madison expected the Senate to supply in the method.
Figure 5. Perspectives on the Advantages of the Senate
The double majority requirement for enactment and Madison’s theory of a contest bring the discussion full circle to confront the paradox on the core of the design of Congress. “It should be acknowledged,” Madison wrote, “that this complicated check on laws may in some instances be injurious in addition to useful” and that “this a part of the Structure could also be more convenient in practice than it appears to many in contemplation,” but an “excess of law-making appear to be the diseases to which our governments are most liable” (Madison, The Federalist No. 62). Hamilton acknowledged this as well when he discussed the President’s veto power. “It might be said,” Hamilton wrote, “that the ability of stopping bad laws includes that of stopping good ones; and should be used to the one purpose in addition to to the opposite” but that it was more essential to forestall bad law than it was to place in danger good laws. It was a essential trade-off, he argued, to raised ensure due deliberation within the creation of law. He added that the veto “establishes a salutary check upon the legislative body, calculated to protect the community against the results of faction, precipitancy, or of any impulse unfriendly to the general public good, which can occur to influence a majority of that body” (Hamilton, The Federalist No. 73). Hamilton’s views are further highlighted in Figure 6. This tradeoff might well be the start line for a critical review and deeper critique of the Congressional design. It creates significant operational problems with consequences that stretch far beyond Congress.
Figure 6. The Tradeoff Embedded within the Design
The bicameral Congress was, itself, very much the product of a political compromise with factional interests. Madison acknowledged that the design of the Senate—two Senators from each State, appointed by the legislatures of the states—that created the double majority was negotiated between the larger states and smaller states of the nascent Nation. “The equality of representation within the Senate,” he wrote, was the “the results of compromise between the other pretensions of the big and the small States.” It was a deal essential to get agreement for the Structure from the representatives of the smaller states and was expected to be of great profit to them, providing real power within the legislative process. The “complicated check on laws” was definitely worth the risks of “peculiar danger” it presented, nonetheless, and Madison considered it the “lesser evil” as “between the proposed government and a government still more objectionable.” He advised those that would vote on ratification “to contemplate reasonably the advantageous consequences which can qualify the sacrifice.” He added that, “it doesn’t seem like without some reason that in a compound republic, partaking each of the national and federal character, the federal government must be founded on a combination of the principles of proportional and equal representation” (Madison, The Federalist No. 62).
Concluding Thoughts
Considering Congress in modern light, after substantial history and lived experience, we possess much that the Framers couldn’t know on the time (see e.g., Dahl, 2003). To the extent that the idea of the design was built on competition, the structure stacks the competition in favor of the establishment. The design was also the results of a political compromise with a faction within the writing of the Structure. These initial observations catalyze much for contemplation and the following article on this series will attempt a critical review and critique of the theories underpinning the design of Congress and the design itself.
References
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