Filibuster: History, Purpose As Used By The Senate & Effects On The Legislative Process – Guest Essayist: The Honorable Frank M. Reilly

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U.S. Senate Rule XXII, which requires a three-fifths supermajority vote of the body (60 votes) to end debate on a measure, has been on President Donald Trump’s mind lately as some of his key legislation has hit a brick wall in the senate.[1]  The rule effectively empowers the minority political power because it takes a supermajority to pass legislation, and up until recently, to confirm a president’s nomination of a Supreme Court justice.  But the rule, which allows for a parliamentary procedure called a filibuster, has not always been on the books, and is not mentioned in the U.S. Constitution.

The Great Compromise of 1787 reached during the Constitution’s framing made the Senate the prime legislative body to represent the states,[2] thus the Constitution provides that each state has two senators, regardless of the state’s population.[3]  With this fact in mind, consider that any percentage of the Senate does not equate to a similar percentage of the nation’s population being represented.

The Constitution provides that the House and Senate “may determine the Rules of its Proceedings… .”[4]  The Constitution’s framers specified five instances in which the Senate must have a supermajority vote:  expelling members,[5] ratifying treaties,[6] convicting federal officials following impeachments,[7]overriding presidential vetoes,[8] and proposing constitutional amendments.[9]  Both James Madison and Alexander Hamilton argued against supermajority votes in The Federalist.[10]

While some have argued that the supermajority vote that the Senate rules require to end debate is unconstitutional,[11] it has remained in place in various forms since 1806.  However, the rule’s continued survival is more likely to be subject to political decisions within the U.S. Senate rather than the involvement of the U.S. Supreme Court in an internal Senate matter.[12]

Aaron Burr, who killed Alexander Hamilton in their famous duel, is credited with changing Rule XXII and empowering the political minority — that Hamilton feared — at the expense of the majority. In 1805, Burr, who by virtue of Article I, Section 3 of the Constitution, also served as President of the Senate, urged the Senate to simplify its rules to end the “Move the Previous Question” rule, arguing it was redundant to the original “question” or motion made, and in 1806, the Senate ended the rule.[13]  The change to Senate Rule XXII, which was apparently made to simplify the rules, allowed for a filibuster, which is the act of speaking continuously on a motion so that a vote cannot occur.  The word “filibuster” is a variation of the Spanish word for pirate, which is indicative of the parliamentary move that stops a vote from occurring.  But even though the rule change occurred in 1806, no senator threatened a filibuster until 1837, and it not used until 1841.[14]

In 1917, under pressure by President Woodrow Wilson who was seeking legislation to arm merchant ships and was being blocked by the Republican minority, the Senate added a rule to allow for the “cloture of debate,” meaning to end a filibuster.  Cloture is the French word for fence.  The amended Rule XXII required a two-thirds vote to end debate.[15] From 1917 until 1963, cloture was rare, and was invoked only five times to end debate.[16]  The Senate later amended the rule to lower the number from two-thirds of the senators present and voting to three-fifths of all of the senators, which increased ability to end debate, but which also maintained a supermajority requirement.  Senators’ use of filibusters significantly increased over time to the point that almost all major legislation must now garner 60 votes to pass.

Through the years, both parties used filibuster threats to stop presidential appointees. Republicans threatened, during the President George W. Bush administration, to use what some called the “nuclear option” to modify Senate rules to eliminate filibusters of presidential appointees.[17] They backed down after raucous protests from the Democrats, and after a group of moderate senators from both parties, who dubbed themselves the “Gang of 14” reached an agreement in 2005 to allow the votes on some of President Bush’s judicial nominees in exchange for a retreat on moving forward with doing away with the supermajority requirement.

The agreement was short lived, in that when the Democratic Party gained control of the Senate, the Democrats used the “nuclear option” to end the filibuster rule for all presidential nominations except Supreme Court justices.[18]  In the summer of 2016, when then-Senate Majority Leader Harry Reid (D-NV) assumed Senator Hillary Clinton (D-NY) would defeat Donald Trump in the November presidential election and that the Democrats would win control of the U.S. Senate, he said that the Democrats were prepared to eliminate the filibuster rule, saying “[i]t is going to happen.”.[19]   The Democrats lost the presidential election, and the Republicans maintained control of the Senate, and the supermajority cloture rule for legislation has remained intact, but was modified to a simple majority for Supreme Court justices.[20]

In January 2017, President Donald Trump nominated Judge Neil Gorsuch to fill the vacancy on the Supreme Court resulting from Justice Antonin Scalia’s death.[21]  When the Senate Democratic Party leadership announced they would filibuster Gorsuch’s nomination, the Republicans changed the cloture rule for U.S. Supreme Court nominees, requiring a simple majority of votes to confirm Gorsuch’s nomination.  The Senate confirmed Gorsuch with a 54-45 vote.  While Senator Harry Reid promised that the Democrats would end the supermajority cloture rule for Supreme Court justices and legislation, the Republicans ended the rule for Supreme Court justices.[22]

While filibusters are essentially dead as far as presidential nominees are concerned, they remain very much alive for votes on legislation.  Filibusters can be used as a shield to try to stop legislation that a senator dislikes, or a sword to spur action on some other measure.  For example, Senator John McCain (R-AZ) and senate democrats repeatedly filibustered to force a Republican senate to vote on campaign finance reform, and Senators Hillary Clinton (D-NY) and Patty Murray (D-WA) held up President George W. Bush’s executive branch nominations to successfully pressure President Bush’s Food and Drug Administration to allow so-called “Plan B” emergency contraceptives to be sold without a prescription.[23]

The U.S. Senate’s 2018 partisan split of 51 Republicans and 49 Democrats means that any Republican sponsored measure must receive at least 9 votes from the Democrats to pass, and even more votes, if some of the Republicans do not vote or do not support the measure.   Whenever any political party holds a majority, but less than the 60 vote majority, that party will have to seek votes from the other party.  In other words, 41 members of the Senate can stymie legislation.

President Trump’s repeated pleas to the Republican-led Senate to end the supermajority cloture rule that allows Democrats to filibuster his legislative proposals may eventually be heeded by the Senate Republicans.  With former Senate Democratic Leader Harry Reid’s promise that the Democrats would do the same thing if and when they regain control of the Senate, it is likely that one political party or the other will end the rule if that party’s control remains less than three-fifths of the Senate.

Frank M. Reilly teaches constitutional law, election law, and other political science courses at Texas Tech University. He is also a lawyer in private practice in Horseshoe Bay, Texas, and serves as a municipal judge for two Texas cities.  Follow him on Twitter @FrankReilly or on Facebook at JudgeFrankReilly.

[1] See e.g., President Donald Trump’s Twitter posts on June 30, 2018, June 21, 2018, July 29, 2017, and September 15, 2017. <https://twitter.com/realDonaldTrump>.

[2] The 17th Amendment, ratified by the states in 1913, changed the compromise by switching the means by which senators are chosen, from the original appointment by each state legislature to direct election by voters.

[3] U.S. Const., art. I, sec. 3.

[4] Art. 1, Sec. 5, U.S. Constitution.

[5] Id.

[6] Id., Sec. 2.

[7] Id., Sec. 3.

[8] Id., Sec. 7.

[9] Id., Art. 5.

[10] See Federalist 58 (““a minority can demand unreasonable things””) with James Madison writing, and Federalist 22 (“[i]f a pertinacious minority can control the opinion of a majority [the result will be]tedious delays; continual negotiation and intrigue; contemptible compromises of the public good”), with Alexander Hamilton writing.

[11] See e.g., Chafetz, Josh and Gerhardt, Michael J., “Is the Filibuster Constitutional?” (2010). Cornell Law Faculty Publications. <https://scholarship.law.cornell.edu/facpub/160>

[12] See NLRB v. Noel Canning, 573 U.S. ___, 134 S. Ct. 2550 (2014) (“for purposes of the Recess Appointments Clause, the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business”); and Raines v. Byrd, 521 U.S. 811 (1997) (individual members of Congress do not have standing to sue unless they can prove a particular injury separate and apart from that of the legislative body). See also Page v. Shelby, 995 F. Supp. 23 (D.C. 1998) (holding voter lacked standing to challenge the constitutionality of Rule XXII).

[13] Binder, Sarah A., “The History of the Filibuster,” Brookings Institution, April 22, 2010.  <https://www.brookings.edu/testimonies/the-history-of-the-filibuster/>

[14] Id.

[15] Id.

[16] United States Senate, “Cloture Rule.” <https://www.senate.gov/artandhistory/history/minute/Cloture_Rule.htm>

[17] Carl Hulse, “Democrats Reject a Compromise on Judicial Nominees”. New York Times, May 11, 2005.  <https://www.nytimes.com/2005/05/11/politics/democrats-reject-a-compromise-on-judicial-nominees.html>

[18] 159 Congressional Record 167, S8418, November 21, 2013. <https://www.congress.gov/crec/2013/11/21/CREC-2013-11-21.pdf>

[19] Hulse, Carl, “A Democratic Senate Might Need to Curtail Filibuster, Harry Reid Says,”  New York Times, August 31, 2016. <https://www.nytimes.com/2016/09/01/us/politics/a-democratic-senate-might-need-to-curtail-filibuster-harry-reid-says.html>

[20]  United States Senate, “Memorandum of Understanding on Judicial Nominations,” September 15, 2005.  <https://www.gpo.gov/fdsys/pkg/CRPT-109srpt369/html/CRPT-109srpt369.htm>

[21] White House, “President Trump’s Nominee for the Supreme Court, Neil M. Gorsuch,” <https://www.whitehouse.gov/briefings-statements/president-trumps-nominee-supreme-court-neil-m-gorsuch/>

[22] Tau, Byron, “Senate Confirms Neil Gorsuch as Supreme Court Justice,” Wall Street Journal, April 7, 2017. <https://www.wsj.com/articles/senate-expected-to-confirm-neil-gorsuch-as-supreme-court-justice-1491557404>

[23] Clemmitt, Marcia, “Gridlock in Washington,” 20 CQ Researcher 17, pp. 385-408,  April 30, 2010.

May 30: Counting The Personal Cost: Impact Running For Elected Office & Serving In Congress Has On Members And Their Families – Guest Essayist: James D. Best

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In his recent retirement announcement, Paul Ryan said, “It’s easy for it to take over everything in your life.” The Speaker of the House added, “If I am here for one more term, my kids will only have ever known me as a weekend dad. I just can’t let that happen.”

Many find it hard to believe that Ryan would put his family above one of the most powerful positions in our nation’s capital. Most politicians never willingly forego the power that comes from high office. I have no insight into Ryan’s motivations, but in preparation for this article, I interviewed the wife of an eight-term congressman, and she confirmed that public office has an enormous impact on members and their families.

First, the background. Lee Terry represented Nebraska’s 2nd congressional district from 1999 to 2015. Prior to winning a house seat, he had served in Omaha city politics and had a successful law practice. When elected, his two boys were pre-school age. (Their third son was born later.) Neither Lee nor his wife, Robyn, came from wealthy families and they hadn’t accumulated much savings at this point in their careers.

Being a congressperson or senator is like having three jobs that consume every waking moment. There are congressional duties, constituent services in the home district, and near continuous campaigning and fundraising. For the first few months, Lee’s family lived in Omaha, but since he was seldom home, they decided to move to Washington D.C. That didn’t work as expected, so they ended up returning to Omaha. In frustration, they realized that neither location allowed for a normal family life.

When they lived in Omaha, Lee spent his at-home weekends going to meetings and events. The public perception is that when a congressperson is home, they’re on vacation. Not true. The life of a legislator at home is all work, and Lee couldn’t even fly back and forth without other passengers interrupting him as he tried to catch up with his work. Everyone jockeys to meet their legislator, especially when they’re new. During his first three months in office, Lee literally worked until 8:00 PM every night. People wanted to meet with the new congressman, and many wanted the congressman to tour their business. Events from parades to dinners to breakfast get-togethers were constant. Few invites were declined because elections fall every two years and raising campaign money becomes a constant requirement. At first, Lee and Robyn tried to set Sunday aside as a “no touch day”. Then Sunday dinner as a “No touch time.” Neither worked. They needed to line-out time on the schedule for family events, and at times that didn’t work. Weekends became a blur. For the entire sixteen years, home life was rife with interruptions, and no holidays were private except for Christmas. Worse, when they were able to arrange a family outing, everyone felt free to approach Lee to express an opinion, ask for a favor, or merely say hello.

When they moved to Washington D.C., they assumed Lee would be home in the evenings with his wife and young children. Except that he still needed to return to Omaha most weekends, and many of his weeknights included evening events or occasionally votes. Robyn had expected an active social life with other spouses, but it was not as active as she supposed. Only about twenty percent of congressional families live in D.C., and those that did were spread all over the city. Except for friends in the immediate neighborhood, social interaction with other spouses was limited to formal events. Robyn began to feel isolated. Her large cadre of friends and relatives remained in Omaha. She had no relationship or history with local health providers. Then their oldest reached school age and she wanted her son to attend public school with his friends in Omaha.

Moving to D.C. did make Lee’s Omaha-based work easier. He could perform his district duties without trying to balance family life and he felt less guilt about being pulled away from home so often. Despite this positive aspect of living in D.C., they moved back to Omaha.

As children of elected officials get older, they also sacrifice for their parent’s profession. The biggest problem was loss of anonymity, which is very difficult for teenagers. On occasion, they heard criticisms of their father, in the media, at school, or at social gatherings. The boys were also admonished to always behave properly and not get in any newsworthy trouble.

Dealing with reality versus perception presented another challenge. Issues and people in the media are distorted for political purposes. Politicians understand that the opposition will build misperceptions about who they are, what they’re doing, and why they’re doing it. It comes with the territory. But spouses, children, and other relatives must live daily with slanted attacks on one of their beloved family members.

Money presented another sacrifice. Lee’s congressional salary when elected was $136,700. Over the years, he would have done better financially if he had continued to build his law practice. He and his wife understood this when they chose public service, but it still startled them to watch their peers out-earn them so dramatically. Even the rich sacrifice financially because they no longer have the same freedom to direct investments in their field of expertise.

Another popular perception is that when a person leaves Congress, they find abundant opportunities to make piles of money. This is seldom true in their old profession. For example, after an absence of sixteen years, Lee’s professional connections and access to historic resources had diminished. It’s like starting your profession all over again, but now from middle-age.

The two chambers also make different demands on families. Senators have longer terms, which lessens the need for constant campaigning, and they deal with fewer constituent services. Still, even senators are on call at all hours of the day and night.

Although we like to think that anyone can run for office, wealth makes it far more comfortable. Fundraising comes easier, two homes are affordable, travel more private and luxurious, and private schools de rigueur.

Being a congressional family is not all bad, of course. In many cases, the entire family gets to meet the president and other high officials. Children are often familiar with people in the news. A congressperson’s family has access to areas, like the capitol dome, others never see. And, hopefully, there is the satisfaction of knowing you walk in the shadow of giants and have done your best to protect our country and improve the life of its citizens.

Being an elected public official is a difficult lifestyle for both the office holder and his or her family. A thank you might be in order the next time you meet your representative or senator.

James D. Best, author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, Principled Action, Lessons From the Origins of the American Republic, and the Steve Dancy Tales.

 

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May 29: Campaign Finance: A History, Related Laws, And Impact On Running For Congress – Guest Essayist: The Honorable Frank M. Reilly

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Over the last 111 years, Congress has sought to regulate how its own elections are financed.  Like most regulations, campaign finance laws have become increasingly more intensive and complex, though the U.S. Supreme Court has occasionally stepped in when Congress has overstepped either the powers granted to it in Article I of the Constitution, or the First Amendment rights of candidates, citizens, or associations of citizens.

As with most legislation, campaign finance laws result from a perceived abuse of power or of the process.  And as the law changes, its subjects, like a stream of water that finds its way around an obstacle to continue its downstream flow, find new ways around the law.

While the bulk of federal campaign finance law has been enacted after the Watergate era of the early 1970s, the issue in the United States predates our Constitution.  In 1758, George Washington’s purchase of 144 gallons of hard cider, wine, and punch to encourage voters to support his election to Virginia’s House of Burgesses was a catalyst for that very body to later ban the gifting of “money, meat, drink, entertainment or provision or …any present, gift, reward or entertainment etc. in order to be elected.”[1]

The U.S. Congress first began regulating campaign finance in 1907 with the passage of the Tillman Act, 34 Stat. 864 (January 26, 1907), which banned corporate contributions to candidates for federal office.[2]  Congress enacted the Tillman Act to respond to increased contributions by corporations in the 1904 election, and President Theodore Roosevelt, a key beneficiary of those contributions sought to remove corporations from the realm of political activity.

The 1910 Federal Corrupt Practices Act and its 1911 and 1925 amendments created the first campaign finance disclosures and imposed spending limits,[3] but the Supreme Court held the spending limits for primary elections to be unconstitutional.[4]

After World War II, the labor movement increased with greater unionization of employees, and many labor unions began efforts to force all employees to join the unions.  During the war, the unions did not strike against the employers in a common effort to keep the nation’s war response engaged.  However, after the war, unions began striking against employers with greater frequency, and they became politically active.

In turn, Congress began restricting labor union political activities with the passage of the Smith-Connally and Taft-Harley Acts,[5] and also began prohibiting independent expenditures of not only labor unions but also corporations.  To get around the restrictions, labor unions, and later corporations, created political action committees (“PACs”), in which individuals contributed their own funds to a PAC but the labor union leadership often controlled the donations to candidates.

In 1971, Congress passed the Federal Election Campaign Act[6] (“FECA”) which instituted some campaign finance regulations on federal elections, primarily requiring disclosure of contributions and expenditures.  The Federal Election Campaign Act Amendments of 1974[7] passed in the midst of Congressional hearings concerning the Watergate scandal, imposed an overall scheme of campaign finance regulations.  These regulations essentially replaced the entirety of the 1971 Act and instituted comprehensive restrictions on federal campaign contributions and expenditures, enacted new registration and public disclosure requirements, created voluntary public financing of presidential campaigns, and created the Federal Election Commission to administer and enforce the new laws.

Former U.S. Senator James L. Buckley and others challenged the 1974 enactment, and the U.S. Supreme Court upheld contribution limits, public disclosure requirements, and the voluntary public funding of presidential campaigns, but struck down limits placed on spending by candidates for the U.S. Congress.[8]  The Supreme Court recognized that “[a] restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.”[9]

Similar to the reaction to the law enacted in the 1940’s in which labor unions created PACs to get around the law, the individuals and groups regulated by the 1974 FECA amendments instituted new campaign practices to cope with the law.

National political parties began using “non-federal” or “soft money” accounts that were not subject to the individual campaign contribution limits for their party building activities.  Other organizations, including PACs, labor unions, trade organizations, and corporations began running issue advertisements that did not fall within the restrictions FECA placed on “express advocacy” communications that advocated for the election or defeat of a particular candidate.

An example of an issue ad that might appear on television or on the radio would go like this:  “Senator Jones opposes laws that would protect the environmentally sensitive Chesapeake Bay, endangering the survival of fish and birds that rely on clean water. Call Senator Jones at 202-224-3121 to tell him to support S. 2053 to protect Chesapeake Bay.”  These issue ads were unregulated, and no registration at or disclosure to the FEC was required.

Congress began regulating issue ads and party building with soft money by enacting the Bipartisan Campaign Reform Act of 2002[10] (“BCRA”), more commonly known as the McCain-Feingold Act.  The courts have upheld most of BCRA’s provisions, but the Supreme Court struck down the law’s attempts to prohibit independent expenditures by labor unions and corporations.[11]  Independent political expenditures are those which are made without any coordination with or prior knowledge to a federal candidate or the candidate’s political committee. A later Supreme Court ruling also struck down BCRA’s overall limits that individuals may give to all federal candidates and committees in the aggregate during a 2-year period.[12]   The Supreme Court weighed First Amendment rights of persons and associations of persons (including corporations and unions) against the desire by Congress to prevent corruption resulting from large campaign contributions and reasoned that if expenditures are independent from a candidate, the expenditures are far less likely to have any sort of corrupting power.

After the Supreme Court decisions that pushed back on BCRA, corporations, labor unions, and even wealthy individuals were allowed to make essentially unlimited independent expenditures to support or oppose federal candidates.  These associations created what are known as Super PACs.  A Super PAC does not make direct contributions to candidates, but instead allows individuals, or associations of individuals such as corporations or labor unions, to create an entity that makes independent expenditures in support or opposition to a federal candidate, so long as those expenditures are not in any way controlled by, made in coordination with, or in any way in consultation with a federal candidate or the candidate’s committee.

As each law was enacted, or modified by the courts, congressional candidates have adjusted their campaign fundraising.  In the early days, prior to 1910, candidates faced no restrictions and could raise and spend whatever funds they needed in order to run their campaigns.  With the advent of disclosure laws in 1910 and 1911, candidates would obviously be more discerning about the persons they solicited to avoid contributions from persons, or even the size of contributions that might negatively affect their campaign.  With the creation of PACs, greater funds could be channeled to candidates, and with the Super PACs, virtually unlimited amounts could be raised; however the Super PAC funds have to be fully independent from a candidate or a candidate’s committee.

The laws have affected campaigns in other ways.  Most campaigns now engage lawyers and accountants who specialize in campaign finance law, an expense unknown to congressional candidates for the first 200 years of the republic.

With larger numbers of people to reach as our nation’s population grows, and newer forms of communication, some of which remain expensive, the cost of political campaigns has grown significantly from the time that campaign finances began to be regulated.  According to the website OpenSecrets.org, the average winning candidate for U.S. Senate spent about $10.4 million through the last month of the campaign, and the average winning candidate of the U.S. House spent $1.3 million.[13]  Super PACs and other independent political groups spent nearly the same amount on Congressional candidates.[14]  This is a long way from the $195 (in today’s dollars) that George Washington reportedly spent on liquor to earn a seat in the Virginia Colony’s House of Burgesses in 1758,[15] but he had far fewer voters to reach, about 2,000[16] as opposed to the approximate 710,000 persons per congressional district as set forth after the 2010 census.[17]

______________________

Frank M. Reilly teaches constitutional law, election law, and other political science courses at Texas Tech University. He is also a lawyer in private practice in Horseshoe Bay, Texas, and serves as a municipal judge for two Texas cities.  Follow him on Twitter @FrankReilly or on Facebook at JudgeFrankReilly.

[1] Jim Moyer, “Washington Wins First Election 1758 House of Burgesses,” <http://frenchandindianwarfoundation.org/event/washington-wins-first-election-1758-house-of-burgesses/>.

[2] J. Michael Bitzer, “Tillman Act of 1907,” The First Amendment Encyclopedia, <https://mtsu.edu/first-amendment/article/1051/tillman-act-of-1907>.

[3] CQ Researcher, “Revision of Federal Corrupt Practices Act,” Congressional Quarterly, <http://library.cqpress.com/cqresearcher/document.php?id=cqresrre1931070100>.

[4] Newberry v. U.S., 256 U.S. 232 (1921).

[5] Pub.L. 78-89, 57 Stat. 163 (June 25, 1943) and Pub. L. 80-101, 61 Stat. 136 (June 23, 1947), respectively

[6] Pub.L. 92–225, 86 Stat. 3 (February 7, 1972).

[7] Pub.L 93-443, 88 Stat. 1263 (October 15, 1974).

[8] Buckley v. Valeo, 424 U.S. 1 (1976).

[9] Id., 424 U.S. at 19.

[10] Pub.L. 107–155, 116 Stat. 81 (March 27, 2002).

[11] Citizens United v. Federal Election Comm’n, 558 U.S. 310 (2010).

[12] McCutcheon v. Federal Election Comm’n, 572 U.S. ___, 134 S.Ct. 1434 (2014).

[13] Soo Rin Kim, “The Price Winning Just Got Higher, Especially in the Senate,” <https://www.opensecrets.org/news/2016/11/the-price-of-winning-just-got-higher-especially-in-the-senate/>

[14] Id.

[15] Jaime Fuller, “From George Washington to Shaun McCutcheon:a Brief-ish History of Campaign Finance Reform,”” Washington Post (April 3, 2014), <https://www.washingtonpost.com/news/the-fix/wp/2014/04/03/a-history-of-campaign-finance-reform-from-george-washington-to-shaun-mccutcheon/?utm_term=.1c14f5651186>

[16] Each county in the Virginia Colony would send 2 members to the House of Burgesses, and in 1858 there were approximately 100 counties in Virginia, which then had a population of about 250,000. “Estimated Population of American Colonies,1610-1780” <https://web.viu.ca/davies/h320/population.colonies.htm>.

[17] U.S, House of Representatives, “Proportional Representation,” <http://history.house.gov/Institution/Origins-Development/Proportional-Representation/>

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May 8: The Challenge Of Congressional Representation (2013) By Richard Fenno: A Summary – Guest Essayist: The Honorable Frank Reilly

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In The Challenge of Congressional Representation, Richard Fenno studies the activities of five members of the U.S. House of Representatives in their home districts.  The book follows-up on Fenno’s 1978 Home Style: House Members in Their Districts, in which he outlined Fenno’s Paradox, which posits that while people generally dislike Congress as a whole, they like their own Member of Congress.

Fenno studies the representational activities of House members, rather than their activities in Washington, which differentiates the study from others. Fenno describes the study as “one small-step effort to help redress a research imbalance” in which much is known about how House members operate in Washington, but little is known about their activities back home.

The book recognizes that no research standards exist — listening and observing are very personal and do not lend themselves to standardization — and that future studies will be difficult.  In fact, the best that political scientists can hope for in the short term would be to create an inventory of connection questions and connection patterns for use in later studies.  The long-term goal would be to transform the questions and patterns into explanations.

Fenno’s first subject was Congressman Barber Conable, Jr., a New York Republican.  Conable had “a strong sense of identification with” the more rural, small-town part of his district, having been raised there in a family with deep roots.

Conable connected with his constituents by going home at least 40 times every year, usually travelling alone without staff, adding to his credibility and visibility.  Conable also sent out a weekly printed newsletter, a frequency then-unheard of in Washington.  Conable noted that he focused his time on those who agreed with him, and to whom he was obligated.  He used his newsletter to educate undecided voters.

To protect his independence and engender trustworthiness, he limited campaign contributions $50 from any group or person.

“There’s a natural tension between being a good representative and taking an interest in government,” said Conable.  Toward the end of his Congressional career, he began to believe his interest in government was beginning to overtake his desire to be a good representative.

Fenno next studied Congressman Glenn Poshard, an Illinois Democrat, who also had deep roots in his district.

Poshard noted that the district was difficult to represent because “[t]he issues change every 50 miles….”  To keep in touch, Poshard travelled home most weekends, even though he rarely missed a House floor vote.  He preferred town hall events where he could explain his positions.  He diligently answered constituent mail, but did not send newsletters.  Even though he expanded his district offices from 1 to 6, he was frugal with his official office budget, spending less than any other member from his state.

He refused PAC contributions, and limited others to $500.  He kept his campaign promise to serve no more than 5 terms, saying that term limits provide “a greater sense of freedom to do what you want to — and a certain sense of security.”

Fenno’s next followed Congresswoman Karen Thurman, a Florida Democrat, who served a sprawling district.

Thurman initially ran as a moderate with legislative experience, then after the Democrats lost control of the House in 1994, she shifted her strategy and ran as a partisan Democrat.

Due to the lack of political constituencies or power bases in her district, she relied heavily upon PAC and Democratic Party funding.

Fenno noted a tension between party influences in Washington and the strength of a legislator’s constituency outside of Washington, and observed that the party’s pull on Thurman increased through the years.

Fenno next studied several campaigns that Congressman Jim Greenwood, a moderate Pennsylvania Republican, ran in a very compact district.

Greenwood’s campaign prepared different direct mail brochures separately targeted to specific areas, individually tailored by issues of importance to the recipient constituency.

Greenwood visited the district’s four major newspapers’ editorial boards every six months, and focused his campaign activities at shopping centers (he called it “going retail”).  There he would seek to “meet voters and change minds.” He avoided town meetings, finding that they were not well attended.

After his first election to Congress, he lobbied early and hard for a position on the Energy and Commerce Committee, which was important to his district.

Greenwood used his refusal of PAC contributions as a campaign pitch and provided good constituent casework service.

Greenwood’s success within the Republican Party leadership as a moderate leader yielded positive new coverage at home for his activities.

Fenno’s final subject was Congresswoman Zoe Lofgren, a Northern California Democrat with strong ties to her diverse, but liberal, district.

To reach her constituents, she promptly responded to mail, and handled citizen case issues.  In her first campaign, she explained an unusual campaign tactic, saying “[s]ometimes we go out, unannounced, and set up an ironing board in front of a grocery store, and invite people to come talk.”  In later years she held more town hall meetings.

As a Judiciary Committee member, she earned media coverage and raised her profile nationally and at home with interviews on the Clinton impeachment hearings.

To better serve her Silicon Valley high tech constituency, Lofgren sought and obtained a position on the Judiciary Committee’s Subcommittee on Courts and Intellectual Property Rights.

Fenno relates that a change in the local economy from the growth of Silicon Valley impacted her votes in Washington — land values skyrocketed and people who had been of modest means were now being subjected to the burdens of the federal estate tax, so Lofgren supported reductions and repeals of that tax.

Calling it a “chicken or the egg stalemate,” Fenno closes by postulating that until more studies are performed in home districts, proper questions that will formulate the research cannot be framed.

Frank M. Reilly teaches constitutional law, election law, and other political science courses at Texas Tech University. He is also a lawyer in private practice in Horseshoe Bay, Texas, and serves as a municipal judge for two Texas cities.  Follow him on Twitter @FrankReilly or on Facebook at JudgeFrankReilly.

 

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Wednesday, May 1, 2013 – Essay #53 – Speech on the Kansas-Nebraska Act by Abraham Lincoln – Guest Essayist: Frank M. Reilly, partner at the law firm of Potts & Reilly, L.L.P., Horseshoe Bay, Texas

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In 1820, the U.S. Congress passed the Missouri Compromise in an effort to settle disagreements between pro and anti-slavery factions regarding the admission of new states to the union.  The Missouri Compromise prohibited slavery in new states north of the 36°30ˈ north parallel, with the exception of Missouri.  In 1854, Senator Stephen A. Douglas of Illinois proposed, and succeeded in passing, the Kansas-Nebraska Act, which unraveled the Missouri Compromise.  The Kansas-Nebraska Act, signed into law by President Franklin Pierce on May 30, 1854, allowed citizens within the Kansas and Nebraska territories to decide by what they called “Popular Sovereignty” (a popular vote) as to whether they would allow slavery. Read more

May 28, 2012 – Essay #71 – Amendment XXI, Section 2 – Guest Essayist: Frank M. Reilly, Esq., a partner at Potts & Reilly, L.L.P.

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Amendment XXI, Section 2:

Section 2: The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

The 21st Amendment is the only amendment to the Constitution which repeals another amendment.  The amendment which it repealed, the 18th, became effective in 1920 and it prohibited

“the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States”

and its territories.  The passage of the 18th Amendment, and the subsequent enactment by Congress of its enabling legislation, named the Volstead Act, began a period known as the Prohibition.  The Prohibition era lasted a little over 13 years until the states ratified the 21st Amendment in 1933.

The framers of the 18th Amendment, encouraged by the strong temperance movement and the Anti-Saloon League, hoped that a national prohibition on the use of alcoholic beverages would make the nation a better, and more moral place.  President Calvin Coolidge, who served from 1923 to 1929 as our nation’s 30th president, called Prohibition the “greatest social experiment of modern times.”    Others, such as former President William Howard Taft, who had served as president from 1909 to 1913 and who served as Chief Justice of the U.S. Supreme Court during much of the Prohibition period, predicted that

“the business of manufacturing alcohol, liquor and beer will go out of the hands of law-abiding citizens and will be transferred to the quasi-criminal classes.”

Taft’s prediction ultimately came true, and many entities that previously made alcoholic beverages, as well as new operations, clandestinely (and sometimes openly) violated the law.  The fulfillment of Taft’s prediction, and the other unintended consequences of the Prohibition, was a cruel irony for those who wanted Prohibition to foster a more chaste nation.

Instead of reducing crime and improving the national morality, crime and immorality significantly increased during Prohibition.  “Speakeasies,” bars quietly operating in violation of the law, sprang up in larger cities, and in contrast with the swinging-door saloons they replaced, they welcomed the women that began to frequent the new bars.  It is said that it became popular within the national culture to violate the law, and a whole class of ordinary citizens became criminals.  Private stills produced barrels and barrels of moonshine, some operations were small and served a family or a small group of people; others were larger operations operated by the underworld.  Bootlegging gangsters, such as Al Capone, had their heyday.  Similar to the illicit drug imports today, international criminals worked hard to bring whiskey, rum and other spirits into the country, more often succeeding than failing at their tasks.

Others found clever ways around the Prohibition.  For example, the Napa Valley vineyards of the Beringer family made and sold legal “raisin cakes” from dried grapes, and packaged them with warning labels that said “Caution: will ferment and turn into wine.”  Sales of sacramental wine, used in church services to celebrate communion and which was exempt from the Prohibition laws, skyrocketed, and many assumed that some priests and rabbis of the time were bootlegging on the side.  People with doctor’s prescriptions were able to purchase 1 pint of spirits per week for “medicinal purposes.”  While these exemptions in the law were used for legitimate purposes, organized crime syndicates frequently took advantage of these exemptions and cooked their books to use the legitimate services as front operations to bootlegging.

The Prohibition ushered in at least two additions to popular culture:  NASCAR races and the cocktail.  In the southern United States, some bootleggers retrofitted cars to run loads of whiskey on a fixed fee, per case basis.  These stock cars were built with a heavy duty chassis so that revenue agents would not see an overloaded car, and a souped up engine so the agents could not catch it.  These modified stock cars led to the genesis of the National Association for Stock Car Auto Racing after races by moonshine runners became popular in the south.  Finally, the cocktail – an alcoholic spirit mixed with a sweet or strongly flavored mixer – was invented to cover up the bad taste of homemade gin or whiskey.

Support for Prohibition began to wither with increased public recognition of:  Prohibition’s failures; costly, corrupt and inefficient enforcement efforts; a recognition by some Prohibitionist business leaders that taxing liquor could reduce the impact of rising income taxes; the prospect of new jobs that could be created with a newly legal liquor industry; and finally, the political and economic distractions of the Great Depression.  In 1932, Congress passed a resolution to send the 21st Amendment to the states for ratification, and within a year two-thirds of the states ratified the amendment.  The law began to fracture even before the amendment became effective.  In the spring of 1933, prior to the ratification, newly elected President Franklin D. Roosevelt asked Congress to repeal portions of the Volstead Act to allow the brewing of real beer (“near beer” had been allowed under Prohibition; it tasted like real beer but had an extremely low alcohol content).  After the 21st Amendment became effective, the remainder of the federal Prohibition laws were repealed, and significant taxes were added to the sale of liquor.

Frank M. Reilly, Esq., is a partner at Potts & Reilly, L.L.P., Attorneys & Counselors in Austin and Horseshoe Bay, Texas

 

May 21, 2012 – Essay #66 – Amendment XX, Section 1 – Guest Essayist: Frank M. Reilly, Esq., a partner at Potts & Reilly, L.L.P.

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http://vimeo.com/42528708

 

 

Amendment XX, Section 1:

 

The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

 

Terms of the President and Congress

Prior to the 20th Amendment, the Constitution did not specify the beginning and ending dates of the terms of the President, Vice President, and Congress.  The Constitution defined the length of the terms of the various offices, and Congress ultimately enacted laws to set March 4 as the term starting date of all elected federal officeholders.   Our nation’s earliest federal elections were held prior to December of each even numbered year, and in 1845, Congress set the first Tuesday following the first Monday of November of each even numbered year as a uniform federal election date.  As a result, officeholders remained in office after the November elections for about four months until the 4th of March of the following year.  During the 18th century, such officeholders began to be called ̎lame ducks ̎.

From the late 18th century and into the 20th century, the lack of efficient and speedy transportation made the election process necessarily slow.  Today’s ability to almost instantaneously report election returns did not exist in the days without electricity, telephones, electronic voting devices and the Internet.  It could take days or weeks of horseback travel by electors from remote areas of the country to assemble to cast that state’s electoral votes for President and Vice President.  It could take as long for members of Congress and the elected executives to then travel to Washington to take office.  Thus, the four month ̎lame duck ̎ period between election day and the start of new terms of newly elected (or re-elected) officeholders was a practical necessity.

Sometimes either Congress or the President took actions during those ̎lame duck ̎ periods that the public, or incoming officeholders, felt were unfair and that should have waited until the newly elected representatives could take office.  For example, the famous case of Marbury vs. Madison, in which the U.S. Supreme Court claimed its authority to interpret the Constitution, was a dispute over a staff appointment made by President John Adams after President Thomas Jefferson was elected, but before Jefferson took office.

Transportation and technology advances ultimately reduced the need for a long transition period after an election.  Further, public concern about legislation enacted during ̎lame duck ̎ sessions of Congress, motivated Nebraska Senator George W. Norris to propose the 20th Amendment.  After over a decade of debate, and immediately preceding Franklin D. Roosevelt’s first election as the 32nd president, Congress passed the resolution proposing the amendment on March 2, 1932.  The states ratified the amendment by January 23, 1933, the shortest period of time between a congressional proposal of an amendment and its ratification by three-fourths of the states.

The amendment, rather than a change in the law by Congress, was necessary because it shortened the terms of incumbent officeholders, the length of whose terms the Constitution had been specifically set.  The amendment shortened the ̎lame duck ̎ period by half to about 2 months, with Congress taking office on January 3 and the President taking office on January 20 after each of their elections.  The first president affected by this change was Franklin D. Roosevelt following his second election in 1936.

Legislative history shows that the purpose of the 20th Amendment was to not only shorten the 4 month ̎lame duck ̎ period, but also to prevent  ̎lame duck ̎ sessions of Congress.  However, the 20th Amendment contains no specific language to prohibit ̎lame duck ̎ sessions, and Congress has met in many such sessions since after the states adopted the amendment.  Political debate about lame duck ̎ sessions, however, has been raised on several recent occasions.

On November 13, 1980, a ̎lame duck ̎ President Jimmy Carter nominated future Supreme Court Justice Stephen G. Breyer as a justice of the United States Court of Appeals for the 1st Circuit, and the ̎lame duck ̎ Senate confirmed the appointment in December, 1980.  In December 1998, the House of Representatives voted to impeach President William J. Clinton during a ̎lame duck ̎ session.  Some argued that these actions violated the spirit, if not the letter, of the 20th Amendment, but no one challenged the actions in court.

In 2000, some discussed the potential interplay between the 20th Amendment, and the 12th Amendment, which requires that the House of Representatives select the president if no candidate receives a majority of the electoral votes cast for president.  During the time in which the presidential election results between George W. Bush and Albert Gore, Jr. were still undetermined, some scholars questioned whether a ̎lame duck ̎ House of Representatives could select the president if neither Bush nor Gore received a majority of the electoral votes, or whether the issue would have to wait until the newly elected House of Representatives convened.

While the 20th Amendment’s original intent has been publicly debated, there are no reported court cases involving the amendment.

Frank M. Reilly, Esq., is a partner at Potts & Reilly, L.L.P., Attorneys & Counselors in Austin and Horseshoe Bay, Texas