The Legislative Process and the Courts

25 November 2010

Announcements

• Former House Majority Leader Tom Delay convicted of money-laundering

Committee System

• Standing Committee (exist from one Congress to the next)• Fixed jurisdiction and stable membership =specialization• Bills are assigned to committees on the basis of subject matter• Committee’s jurisdiction usually parallel those of the major

departments or agencies in the executive branch.• Each committee is unique• Each committee’s hierarchy is based on seniority

Why have committees?Theories of Committee Formation

• Informational Theory– Addresses the need for expertise

• Distributive Theory– Satisfies members personal goals

Types of Committees

• See Table 9.1 “Standing Committees of the 110th Congress” p.245.• Or visit the House website

The Legislative Process

• A bill is introduced by a member (only a member). Although bills are introduced only by members, anyone may draft them. Executive agencies and lobby groups often prepare bills for introduction to friendly legislators.

• The Speaker assigns the bill to a committee (In the House). In the Senate, the majority leader assigns the bill to the appropriate standing committee

• Committee jurisdictions are largely fixed; All bills dealing with a given substantive area are automatically sent to that committee.

• However with health care reform, three committees will deal with the issue: Energy & Commerce (Subcommittee on Health), Education & Labor and Ways & Means

Assignment to Committee

• After a bill is introduced, it is assigned a number and referred to a committee.

• Once a bill has been referred to a committee, the most common thing that happens next is NOTHING.

• Most bills die of neglect.• If a committee decides on further action, the bill may be taken up

directly by the full committee, but more commonly it is referred to the appropriate subcommittee.

Committees

• In committee, the bill goes to a subcommittee (here the real work begins)

• The subcommittee decides whether to consider the bill• If so, hearings are held. In a hearing, typically members of the

executive branch and members of interest groups are invited to testify, though individuals can also testify

The Purpose of Hearings

• Congress listens• Often a fair hearing is sufficient• Lobbyists can show their bosses that they tried• Hearings outside of Washington may be for the sole purpose of

campaigning• Let the locals and journalists see their congressman• Hearings don’t have to be for legislation; they can be oversight of

the bureaucracy• They can be to gather information for possible future legislation• They can be to get attention to an idea that has not yet won

majority support

Rules Committee

• Control over procedure is control over policy. If you control the parliamentary procedure, you can often influence the outcome

• It gets a "rule" for debate in the House floor these rules specify how much time can be spent debating the bill and how many amendments can be added to the bill, amendments to what sections, in what order, ect.. This is a very political process

• What amendments, how long is debate, the order of motions, amendments, etc.

• Rules rarely stampedes large blocs of members (more subtle twists are more common).

• In the bad old days when Rules was independent of party leadership (pre-1961), the Rules Comm. regularly killed bills by refusing to grant them rules (esp. Civil Rights)

• Rules is now an arm of the leadership

Example of a Rule

Voting on Legislation

• Scheduling– House calendar--all major public measures (for current House

floor proceedings see Office of the Clerk)– Consent calendar (non-controversial bills) – Private calendar (immigration requests or claims against the

gov)• Rules for Debate

– If there is an open rule, opponents may try to load down a bill with so many objectionable amendments that it will sink of its own weight.

– The rules committee may also give the bill a "non-germane" open rule, meaning that irrelevant amendments can be added to the bill, which would practically kill the bill

– the reverse strategy is to propose "sweetner" amendments that attract members' support

• Debate and Vote upon on the floor, with amendments, ect.

Scheduling Debate (Senate)

• The Senate does not have a Rules Committee.• Thus, the leaders of both parties routinely negotiate unanimous

consent agreements (UCA’s) to arrange for the orderly consideration of legislation.

• UCA’s are similar to rules in that they limit time for debate, determine which amendments are allowable, and provide waivers of Senate rules. In the absence of a UCA, anything goes.

Process in the Senate

• Compared to the larger House which needs and adheres to well-defined rules, the Senate operates more informally

• In the Senate, filibusters (extended debates) are common, which members can effectively engage in to kill a bill

• Filibusters can be stopped by cloture which requires 60 votes (3/5ths called an extraordinary majority)

• Several days ago (on 21 Nov), the Senate passed a motion to end the filibuster and begin debate on health care reform. The motion passed by 60 to 39 votes.

Conference Committee

• If passed it goes to the other house it may start over. More often, parallel bills have been working through

• The parallel bills go to conference committee. This is an ad-hoc committee which is solely created to resolve the differences concerning a specific bill

• Equal numbers of each; in proportion to party. They debate and may vote out a compromise bill

• If passed, the bill goes to both houses for a vote

The President

• He may sign it or veto it• Holding it for 10 days while congress is in session is the same as

signing• Holding it for 10 days during which congress adjourns is a "pocket

veto", which cannot be overridden• to override a veto, 2/3's of both houses is required

The Process Reviewed

The Courts—The Third Branch

• Powerful, but not democratic• Supreme Court has nine unelected judges appointed for life and

are independent from one another• Responsive? • Accountable?

Power of the Supreme Court

• Originally intended to interpret the constitution• Principal of Judicial Review

– Invoked in Marbury vs. Madison (1803)– Allows judges appointed for life the authority to negate laws

passed by elected representatives. • This gives the court a great deal of power which was not made

explicit under the Constitution. • Now that the Courts have the power, how can it be constrained?

Limitations on power

• Courts are reactive (can only hear cases brought before them)• Limited by the ability of Congress and the president to write new

laws (or constitutional amendments)• Lack of enforcement• Public opinion

The Structure of the Federal Judiciary

• Only the Supreme Court is explicitly mentioned in the Constitution (Article III).

• Nature of the judiciary beyond the Supreme Court deferred to Congress.

• Judiciary Act of 1789 - created the federal judiciary.• The federal judiciary is organized as a three-layered pyramid.

The Supreme Court

• The Supreme Court is the court of final appeal.• Under its appellate jurisdiction, the Court may hear cases

appealed from the lower courts or directly from the highest state courts when an important constitutional question is in dispute.

• Decision on which cases to accept is based on the Rule of Four.

Deciding Cases

• Do judges interpret laws or make policy?• English Common law and the principle of stare decisis, “let the

decision stand” • Judicial restraint vs. judicial activism

Bush v. Gore (2000)

• Supreme Court decides the 2000 Presidential Election• By a vote of 7-2, the Court held that the Florida Supreme Court's

scheme for recounting ballots was unconstitutional, and by a vote of 5-4, the Court held that no alternative scheme could be established within the time limits established by Florida Legislature

• Equal Protection of the laws (14th Amendment):• The state-wide standard (that a "legal vote" is one in which there

is a 'clear indication of the intent of the voter’.• No guarantee that each county would count the votes the same

way.

Checks on the Judiciary

• Executive Checks– Appointments

• Legislative Checks– Appropriation of funds– Constitutional amendments– Amending laws to overturn court’s rulings

• Public Opinion– Influence judicial opinions– enforcement

• The Court– stare decisis– Judicial restraint

Civil Liberties

• Civil liberties are Constitution’s protections from government power. • Freedom of speech, religion and the right to privacy are examples. • Typically violations of these liberties occur when some government

agency, at any level, oversteps its authority.

Who protects civil liberties?

• Does the constitution guarantee certain absolute civil liberties?• Truth is that interpretations of these freedoms constantly change.• Question of how to balance individual liberties with societal rights

Cases Involving Civil Liberties

• Free Speech, Schenck v. United States (1919) – clear and present danger

• Freedom of Press, New York Times v. Sullivan (1964) – Libel violates 1st Amendment

• Obscenity, Roth v. United States (1957)– Court attempts to define obscenity

• Establishment Clause, Lemon v. Kurtzman (1971)– Three part test for judging constitutionality of division between

church and state• Gun Control, United States v. Miller (1939)

– 2nd Amendment does not provide for absolute guarantee• Right to Privacy, Roe v. Wade (1973)

– Landmark case on abortion

The Patriot Act – A Threat to Civil Liberties?

• Change in protections from unreasonable search and seizure• Detention of non-citizens, immigrants• Racial profiling