May 10: Holding Power Accountable: Magna Carta, Parliament, And The Origins Of Representative Congress – Guest Essayist: Scot Faulkner

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Our U.S. Constitution (1787), and powers of the Legislative Branch, embody the distrust of concentrated power and establish mechanisms to hold that power in check.  This concern for “sovereign over reach”, and the ways to prevent it, flow from the Charter or “Carta” signed on the field of Runnymede in 1215.

On May 26, 1976, in a solemn ceremony at Westminster Hall in London, the leaders of the U.S. House of Representatives and Senate received a gold-embossed reproduction of the Magna Carta.  On June 3, 1976, a second ceremony, in Washington, DC, installed the gold reproduction and the original Wyems copy of the Magna Carta in the Capitol Rotunda to celebrate America’s Bi-centennial.

While the original Magna Carta returned to England, the gold Magna Carta remains on permanent display in the Capitol. “Nothing could be more symbolically important to the people of the United States,” stated Speaker Carl Albert during the ceremony.

Why is the Magna Carta so firmly linked to America’s Legislative Branch?  How are the underlying principles of the Magna Carta embodied in the operations of the Congress?

Winston Churchill, in his masterpiece, “A History of the English Speaking Peoples”, explained, “Throughout the document [Magna Carta] it is implied that here is a law which is above the King and which even he must not break.  This reaffirmation of a supreme law and its expression in a general charter is the great work of Magna Carta; and this alone justifies the respect in which men have held it.”

England’s King John was humbled by barons at Runnymede on June 15, 1215.  The King had over reached as an aspiring despot.  The barons had the military force, and the political will, to assert there were limits to even a King’s power.  Magna Carta was the contract that re-established the rule of law and re-asserted certain rights for the ruling class.  This included forbidding the King from compelling certain actions, and prevented him from imposing punishments and fines except through due process within narrowly defined cause.

England would expand upon these basic principles as Parliament gradually replaced the Monarchy in governing the nation.  This process required a Civil War (1642-1647), the beheading of King Charles I (1649), and the deposing of King James II (1688).

America’s Revolution (1775-1781) and Declaration of Independence (1776) arose from a similar concern over King George III’s “sovereign over reach”.

Magna Carta’s revolutionary concept of holding the King accountable for a breach of contract with England’s nobles was broadened in the Declaration of Independence.  Thomas Jefferson established rights above Common Law and Medieval precedents with the famous phrase, “We hold these truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights.”

The U.S. Constitution put this broader interpretation of Magna Carta into practice.  Alexander Hamilton, James Madison, and John Jay, writing in Federalist 84, explain:

“It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was MAGNA CARTA, obtained by the barons, sword in hand, from King John…Here [in America], in strictness, the people surrender nothing; and as they retain everything they have no need of particular reservations. “WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” Here is a better recognition of popular rights.”

The U.S. Constitution builds upon centuries of Parliamentary precedent by placing the power of legislation, and the funding of government operations, clearly in the hands of the Legislative Branch.  This is why Article I begins, “All legislative Power herein granted shall be vested in a Congress of the United States…”

It is not a coincidence that Article I, the Legislative Branch, is more than double the size of Article II, the Executive Branch, in defining power and authority (2,282 words to 1,023 words). The final section on the Executive Branch establishes Congress’ ultimate sanction against “sovereign over reach”:

Section. 4. 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.

From the very first, the Legislative Branch asserted its role in limiting Executive Power.  Senators quickly and effectively embraced the limitation of the President to appoint only with the “the Advice and Consent of the Senate” (Article II, Section 2).

The first test was rejecting President George Washington’s appointment of Benjamin Fishbourn to be a customs collector. On August 5, 1789, President Washington strode unannounced into Federal Hall in New York City, then the Capitol Building.  Vice President John Adams allowed Washington to sit in the presiding officer’s chair.  The President, according to Ron Chernow’s definitive biography on Washington, “proceeded to unbraid the twenty-two members of the Senate, demanding to know why they spurned his appointee.”

Senator Ralph Izard of South Carolina spoke for the institution asserting that “the Senate had no obligation to explain its reasoning to the President”. It was the last time Washington, or any other President, entered a Legislative Chamber without permission.

Battles over appointees, spending, and legislation have defined the balance of power between the Congress and the President.  In each encounter, Congress has ultimately reaffirmed its power to limit “sovereign over reach”.  This has included censuring President Andrew Jackson (1834) and impeaching Presidents Andrew Johnson (1868) and Bill Clinton (1998-1999).

The “Lincolnia” original of the Magna Carta was displayed at the New York World’s Fair in 1939.  It remained safe in America during World War II, even being stored in the vault of Fort Knox after the Pearl Harbor attack.

America kept the physical Magna Carta safe, and kept Magna Carta’s revolutionary legacy of holding power accountable.

Scot Faulkner advises corporations and governments on how to save billions of dollars by achieving dramatic and sustainable cost reductions while improving operational and service excellence. He served as the Chief Administrative Officer of the U.S. House of Representatives. He also served on the White House Staff, and as an Executive Branch Appointee.

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May 7: Newt Gingrich (1943) – House Speaker, Republican Whip From Georgia; Led The 1994 Contract With America – Guest Essayist: Scot Faulkner

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Newt Gingrich is the most consequential Republican Speaker in history.  He revitalized a failed Republican Party, forging the first GOP Congressional majority in forty years.

During his tenure, Gingrich revolutionized House operations, including bringing the Legislative Branch into compliance with all federal laws.

Republican Speakers have a rich history of shaping Congress. Two of the three House Office Buildings are named after Republican Speakers.  Rep. Joseph Cannon (R-IL) remains the single most powerful Speaker in House history (1903-1911).  Rep. Nicholas Longworth (R-OH) broke with Teddy Roosevelt to defend the Republican Party in the 1912 election and then broke with President Herbert Hoover to defend American taxpayers against the growth of big government (1925-1931).

Rep. Thomas Reed (R-ME) comes closest to Gingrich’s impact on the Legislative Branch.  Reed was known for his communication ability, and his mastery of parliamentary procedure.  As speaker (1889-1891/1895-1899) he mastered both of these skills to bring the House of Representatives back into alignment with the original rules written by Thomas Jefferson. Many consider his success assured the “survival of representative government”. [1]

Newt Gingrich was born and raised in Georgia.  His early career as a professor of history and geography at the University of West Georgia well prepared him for the many times he would reference America’s founding principles during his political career.

In 1978, Gingrich became the first Republican to win Georgia’s 6th Congressional District.  Once in office, he learned parliamentary combat and the power of well-timed words from Rep. John Ashbrook and the conservatives of the Chesapeake Society. [2]

When many of Chesapeake conservatives followed President Reagan into the Executive Branch, Gingrich formed the “Conservative Opportunity Society” (COS). This became a rallying point for those wanting to make the House Republicans stand for something. [3]

COS members took the skills learned from Rep. John Ashbrook and the older conservative “street fighters” and added their own knowledge of using the media. Live coverage of House sessions had only been available to cable television audiences since March 1979 when CSPAN began to broadcast the House signal.

Through ingenious use of the one-minute speeches, that led the daily sessions, and the special orders, which ended the legislative day, Gingrich and the COS began to build a television audience. In the days before Rush Limbaugh and other conservative media personalities, the COS shows obtained a conservative “cult” following. The COS members became popular icons to a new generation of young conservative activists.  Speaker O’Neill, in an attempt to humiliate the COS, ordered the House cameras to show the empty chamber that the COS was addressing late at night. This only added to the COS mystique as activists outside of Washington saw the empty chamber as a metaphor for COS members standing courageously alone against the powerful forces of big government.

In 1988, Gingrich launched an ethics complaint against then House Speaker Jim Wright (D-TX). He questioned the financial arrangements around Wright’s book, Reflections of a Public Man. Controversy swelled around Gingrich as Democrats attacked him for similar problems with his own 1977 book deal. Such attacks only added to Gingrich’s following among “grassroots” conservatives outside of Washington, DC.

The election of George Bush as president in 1988 led to a historic opportunity for Gingrich. Rep. Dick Cheney (R-WY) had been tapped to become Secretary of Defense. This happened in the wake of the unsuccessful confirmation fight for former Senator John Tower (R-TX). With Cheney leaving the Minority Whip’s position in March 1989, the opportunity presented itself for a conservative insurgency against Michel’s candidate, Rep. Edward Madigan (R-IL).

Madigan had been the chief deputy minority whip and was viewed as the natural successor to Cheney. Republicans tended to reward people in turn and to shy away from insurgency candidates. This tradition of planned succession was symbolized by having conservative Rep. Tom Delay (R-TX) act as Madigan’s campaign manager against Gingrich.

On March 22, 1989, the tradition was shattered as Gingrich was elected by a two-vote margin. “The issue is not ideology; it’s active versus passive leadership,” said Rep. Weber. [4]

Gingrich immediately set about reshaping the opposition of the House. Along with the organizational resources of GOPAC, his personal political action committee, Gingrich built what became known as “Newtworld”.  Joe Gaylord, Gingrich’s top lieutenant and then head of GOPAC, ran this interlocking structure behind the scenes. Dan Meyer moved from Gingrich’s personal office to head the Whip’s office. Tony Blankley, a veteran of the White House and active member of various conservative networks during the Reagan years, became the spokesman. A GOPAC consultant, John Morgan, an expert at tracking polls, began weekly assessments of how this new operation, and its aggressive strategy, were working.

The new organization moved the COS’s combative style to center stage. There were weekly “themes” for Members to focus on. This meant floor speeches backed up by fact sheets and talking points that Members could use back in their districts. An “echo-chamber” of opposition, linked to conservative grassroots groups, was becoming a machine. Its goal was to topple the Democrats in 1992 or ’94.

The elections of 1992 disappointed some House Republicans who had hoped for more voter outrage over the scandals of the 102nd Congress. The Republicans were left to ponder both their minority status in the House, and having to deal with a Democrat in the White House.

On December 7, 1992, the Republicans met to sort out their leadership in the 103rd Congress. Michel remained a declining figure among the insurgent House Republicans, but his popularity gave him another two years as minority leader. Gingrich would have to run his opposition effort as Minority Whip. However, Gingrich’s strategy of aggressive opposition received another major boost. Rep. Richard “Dick” Armey (R-TX) defeated Rep. Jerry Lewis (R-CA) for Chairman of the Republican Conference. Another moderate/nonconfrontationalist was defeated and another conservative in favor of total warfare with the House Democrats was elevated to a key leadership position. [5]

Bolstered at the top by Gingrich and Armey, and by Rep. Jim Nussle’s (R-IA) House Reform group –  the “Gang of Seven”, the COS, the 103rd Congress witnessed daily exposes of Democrat scandals and malfeasance.

On September 27, 1994, Gingrich launched the first “European-style” parliamentary election, by crafting the “Contract with America”.  For the first time in American history, a party ran its Congressional candidates based on an inspirational and visionary manifesto.

The “Contract with America” ignited the Republican base, leading to a 54 seat swing propelling the Republicans into power for the first time since 1954.

As Speaker, Gingrich drove the House’s agenda to pass the major elements of the “Contract” within 100 days.  This was accomplished.  However, Senate inertia and President Clinton’s vetoes prevented most of the “Contract” from becoming law.

Two “Contract” items did become reality, and these changed the Legislative Branch forever.  HR 1, the Congressional Accountability Act of 1995 was the first order of business and the first bill passed in the 104th Congress.  For the first time, the Legislative Branch was required to comply with all the laws it had passed.  True accountability was achieved as Members had to live under the same laws they had thrust onto Americans. [6]

The other action was creating the Office of the Chief Administrative Officer (CAO), which consolidated all non-parliamentary and non-security functions within one office.  Its mandate was to reinvent the operations of Congress to make it run like a business, while being completely transparent and accountable. This became the most comprehensive rethinking of Legislative Branch operations since the first Congress met in 1789.  Obsolete functions were abolished, others were privatized.

Business practices were institutionalized by a team of corporate transformation experts, with the assistance of major accounting firms.  Another team of computer experts implemented the “Cyber Congress”, which thrust House communications into the 21st Century in one giant leap. The result was a lean, customer-focused, accountable operation that saved $186 million and became the model for support services in 44 parliaments around the world.  The reforms were so thorough and effective, that they remain in place to this day.

Gingrich’s policy and budget confrontations with President Bill Clinton defined the balance of his tenure.  Government shutdowns and other brinksmanship forced reforms in welfare and taxes, and reduced the federal budget deficit.

Conservatives became concerned over Gingrich’s seeming loss of focus and the mounting attacks by Democrats. House Appropriators angered conservatives over being increasingly enamored with spending and earmarks. House “revolutionaries” tried to reverse things.  On July 16, 1997 a small band of “true believers”, along with Delay and Armey, mounted a revolt against Gingrich.  This ill-fated “palace coup” weakened both the plotters and the Speaker. [7]

In December 1998, after a disappointing showing in the November elections, Gingrich announced he would not seek re-election as Speaker and would resign from the House. [8]

The looming impeachment of Clinton over the Monica Lewinsky scandal further confused the situation. Rep. Bob Livingston (R-LA), the Chair of the Appropriations Committee and assumed to be the next Speaker, shocked the Chamber by resigning as his own extramarital affair became public.  Amongst the chaos, Rep. Dennis Hastert (R-IL) became Speaker. [9]

Since leaving the House of Representatives, Gingrich remains an insightful commentator and provocative thinker.  Returning the House to the rule of law, and being highly responsive to the will of the voter, remain lasting historic achievements that strengthened our democracy.

Scot Faulkner served as Chief Administrative Officer of the U.S. House of Representatives and as a Member of the Reagan White House Staff.  He earned a Master’s Degree in Public Administration from American University, and a Bachelor’s Degree in Government from Lawrence University

NOTES

[1] A vivid chronicle of Reed’s battle for parliamentary integrity and accountability can be found in Barbara Tuchman’s, The Proud Tower. Ballantine Books, 1962; pages 125-130

[2] Faulkner, Scot, Naked Emperors. Rowman & Littlefield, 2008; pages 81-82.

[3] Ibid., page 25

[4] Komarow, Steven (March 22, 1989). “House Republicans Elect Gingrich to No. 2 Spot, Chart Battle with Democrats”. Associated Press

[5] Op. Cit. Faulkner p. 27.

[6] www.Govtrack.us. “H.R. 1 (104th): Congressional Accountability Act of 1995”

[7] Op. Cit., Faulkner p. 294.

[8] Gingrich, Newt (1998). Lessons Learned the Hard Way. Harper Collins Publishers. pp. 159–160.

[9] http://www.nytimes.com/1998/12/20/us/impeachment-overview-clinton-impeached-he-faces-senate-trial-2d-history-vows-job.html?pagewanted=all&src=pm

 

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March 22: Culture Of Debates On The House & Senate Floors – Guest Essayist: Scot Faulkner

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Patrick Henry cautioned, “The liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them.”  In their respective chambers, the U.S. Senate and U.S. House of Representatives have developed unique ways to air differences and make sure information is shared.  The Legislative Branch’s culture of debate hold’s power accountable and preserves our nation’s civic culture.

The differences between the U.S. Senate and U.S. House of Representatives are very apparent after just watching them for a few minutes.

The U.S. Senate is informal.  Senators and staff wander about, mingle, and many conversations are happening at once.  Most procedural actions are by unanimous consent.  Speeches can go on and on.

The U.S. House of Representatives is very structured.  Everything is governed by rules that govern how time is spent, down to minutes.  It is the only way 435 voting, and five non-voting, Representatives can balance discourse with action.

Since the first Congress, the differences between the Senate and House have framed important national debates.

The Senate evolved into the chamber for debate.  Less people, drawn from the political elite until the 17th Amendment to the Constitution, allowed for greater latitude in allotting time for discussion.

The years 1810 through 1859, were a period known as the “Golden Age” of the Senate. Three of the greatest senators and orators in American history served during this time: Henry Clay (Kentucky) articulating the views and concerns of the West, Daniel Webster (Massachusetts) representing the North, and John C. Calhoun (South Carolina) representing the South.

During these years, these Senate “giants” debated and resolved major issues, holding a divided nation together before the Civil War: the Missouri Compromise of 1820, the nullification debate of 1830 (Haynes-Webster debates), and the Compromise of 1850.

During this “Golden Age” Washington’s elite gathered in the Senate chamber to watch the impassioned oratory and the great compromises take place. The public filled the Senate’s “Ladies’ Gallery” and even sat on couches along the walls of the Senate Floor.

A major step toward supporting this debate culture occurred in 1806, when the Senate dropped using a simple majority to move “Previous Question” to stop debate.  The first “filibuster”, from the Dutch term “vrijbuiter” – pirate or pirating the proceedings, happened on March 5, 1841 over the firing of Senate printers.  Grinding Senate proceedings to a halt was viewed as an important way to highlight concerns and force a more in-depth consideration of policy.

In 1917, the Senate established “cloture” as a way to limit debate.  Initially, cloture required a 2/3 vote. This was changed in 1975 to 3/5, the current 60 votes required.

The House found other ways to expand debate within its strict rules.  Members can “revise and extend” their remarks.  This means that a one minute speech can become a multi-page discourse in the “Congressional Record”, the permanent and official record of Congressional activities.

On March 19, 1979 the Cable-Satellite Public Affairs Network (C-SPAN) began live broadcast of the House of Representatives.  Live coverage of the Senate began on June 2, 1986.  Television fundamentally expanded the Congressional audience.  Now people, beyond the small public viewing galleries, could watch what happened instead of reading about it.

Republicans embraced the role of television faster and more effectively than the Democrats.  They turned the opening one minute speeches into street theater.  They used posters and model war planes to create riveting moments highlighting major issues.  Republicans also took the obscure device of the “Special Order” to spend hours educating the electorate on issues after official House business ended for the day.

During the first years of C-SPAN Republicans strategically orchestrated their message through an informal group called the Chesapeake Society. This weekly gathering, co-lead by senior legislative staff and Members, developed themes, wrote talking points, and assigned roles for the House’s “Golden Age” of conservative advocacy.

Representatives John Ashbrook (R-OH), Bob Bauman (R-MD), and John Rousselot (R-CA), and their top advisors, collaborated with Phil Crane (R-IL), Bob Dornan (R-CA), Jack Kemp (R-NY), Larry McDonald (R-GA), Don Ritter (R-PA), Gerald Solomon (R-NY), Bob Walker (R-PA), and seventy other Members, to dominate C-SPAN in opposing President Jimmy Carter and House Democrats. Their effective use of the media is credited with helping lay the ground work for the Reagan Revolution.

A second “Golden Age” of House conservatives was led by Newt Gingrich (R-GA) and his Conservative Opportunity Society. They exposed an array of scandals that grew to symbolize the corruption of forty years of Democrat rule in the House.  Their most famous use of visuals came on October 1, 1991. Rep. Jim Nussle (R-IA) addressed the House wearing a paper bag over his head. He tore off the bag stating he was ashamed to show his face in the wake of House corruption.  These dramatic moments led to the 1994 landslide that propelled Republicans to power for the first time since 1954.

Democrats found their own ways to use the power of the camera.  On June 22, 2016, sixty Members staged a sit-in on the House Floor to dramatize the lack of gun control legislation.  Republicans turned off the cameras and the lights.  Democrats used their cellphone cameras in a social media phenomenon.  On February 7, 2018, Nancy Pelosi (D-CA) used her unlimited time prerogative as Minority Leader to turn the usual “house keeping” procedures of the House into an eight hour marathon speech focusing attention on Deferred Action on Childhood Arrivals (DACA).

Formal procedures, precedents, and tradition, linked to ever evolving technology, guarantees that the role of debate remains a viable part of America’s representative democracy in the 21st Century.

Scot Faulkner served as Chief Administrative Officer of the U.S. House of Representatives and as a Member of the Reagan White House Staff.  He earned a Master’s Degree in Public Administration from American University, and a Bachelor’s Degree in Government from Lawrence University

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February 23: House History: Purpose Of The United States House of Representatives As The Immediate Will Of The People – Guest Essayist: Scot Faulkner

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The reason the U.S. House of Representatives is so different from the U.S. Senate is deeply rooted in the history of representative democracy.

Since the first time hunter gatherers sat around a campfire, leaders depended upon the advice of trusted counselors. These advisors evolved into a lord’s or noble’s Privy Council, and eventually into the “upper chambers” of many democracies, such as Britain’s House of Lords. These members were chosen “from above” – directly by the noble, not “from below” – by the people.  In America, the U.S. Senate was based on being chosen “from above” by State Legislatures until April 8, 1913, when the 17th Amendment to the U.S. Constitution mandated that Senators be directly elected.

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1928, The Effects Of Urbanization On The U. S. And Its Implications For Constitutional Government – Guest Essayist: Scot Faulkner

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How Urbanism Forever Changed America

The 1928 Presidential Election remains the zenith of Republican political power.  Republican Herbert Hoover crushed Democrat Al Smith, winning 58 percent of the popular vote and 83 percent of the electoral vote. [1] The landslide was fueled by years of prosperity, affection for outgoing President Calvin Coolidge, and deep seated concerns over Smith’s Catholicism. Republicans also amassed majorities in the House and Senate not seen again until 2014.

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Stopping The Usurpation Of Advice And Consent – Guest Essayist: Scot Faulkner

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June 28, 2014 is an historic day in thwarting Presidential over-reach. On that day the U.S. Supreme Court unanimously ruled President Obama’s recess appointments unconstitutional. NLRB versus Noel Canning, ET AL was a rare instance when the Judicial Branch acted as referee and reset the balance of power between the Executive and Legislative Branches.

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Congress’ Communication Breakdown – Guest Essayist: Scot Faulkner

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The world where House and Senate Chambers are packed with Members attentively listening to their colleagues ended long before films like “Mr. Smith Goes to Washington” and “Advise and Consent” paid it homage.

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To Rein In Spending, Congress Must Act – Guest Essayist: Scot Faulkner

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Expanding Presidential power usually erodes democracy, expands government, and facilitates the rise of an increasingly unaccountable “Imperial Presidency”.  Ironically, giving Presidents more power to control spending does just the opposite.

The struggle over government spending has been a fundamental point of contention since the earliest days of our Federal Government.  In the last twenty years, this issue has split the Democrats in Congress, frustrated Republican and Democratic Presidents, and generated numerous Supreme Court cases.  The 1974 effort to resolve the matter, once and for all, substantively contributed to the current explosion in federal spending.

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Thursday, May 23, 2013 – Essay #69 – The Emancipation Proclamation by Abraham Lincoln – Scot Faulkner, Former Chief Administrative Officer of the U.S. House of Representatives and currently President of Friends of Harpers Ferry National Historical Park

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On January 1, 1863, President Abraham Lincoln’s right hand was trembling.  He had spent the morning shaking hundreds of hands as part of the traditional New Year’s Day greetings at the White House.  He remarked to Secretary of State, William Seward, that, “if my signature wavers they will say I was afraid to sign it.” He then took up his pen and wrote his name firmly on the Emancipation Proclamation.  As Seward co-signed the document, Lincoln mused, “Seward, if I am to be remembered in history at all, it will probably be in connection with this piece of paper”. [1] Read more

Thursday, May 2, 2013 – Essay #54 – Republican Party Platform of 1856 – Guest Essayist: Scot Faulkner, Former Chief Administrative Officer of the U.S. House of Representatives

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The Republican Party Platform of 1856 is the most important political platform in American history.  It coalesced diverse factions into a new political movement that would dominate American politics for the next 76 years, winning 14 of the next 19 Presidential elections.  It also signaled the end of 36 years of political obfuscation on the issue of slavery in America, ultimately leading to the Civil War.  The Republican Party Platform of 1856, more than any other platform in American history, was designed to codify a new political philosophy and to solidify a coalition of highly fractious political forces into a cogent and compelling movement. Read more

Tuesday, March 12, 2013 – Essay #17 – Letter to Roger Weightman by Thomas Jefferson – Guest Essayist: Scot Faulkner, Co-Founder, George Washington Institute of Living Ethics, Shepherd University

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In the last public communication of his life, Thomas Jefferson made it crystal clear why documents and actions have lasting consequences.  In his letter to Washington, DC Mayor, Roger C. Weightman, Jefferson eloquently asserts the legacy of the Declaration of Independence by declaring it: “the signal of arousing men to burst the chains under which monkish ignorance and superstition had persuaded them to bind themselves, and to assume the blessings and security of self-government.”

Jefferson was a student of history.  He understood its central role in our present and future.  Earlier he wrote: “History, by apprising them of the past will enable them to judge of the future; Read more

Monday, March 11, 2013 – Essay #16 – Common Sense by Thomas Paine – Guest Essayist: Scot Faulkner, Co-Founder, George Washington Institute of Living Ethics, Shepherd University

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As 1776 began, America’s rebellion against British colonial rule was not yet a revolution.  Less than half the projected number of volunteers had enlisted in the Continental army with desertions mounting.  George Washington was entrenched, but stalemated in Cambridge outside of Boston. The British Commander, General John Burgoyne, mocked the situation by writing and producing the satirical play, “The Blockade”, which portrayed Washington as an incompetent flailing a rusty sword.  Then something amazing happened.

“Common Sense” was published on January 9, 1776.  It remains one of the most indispensable documents of America’s founding.  In forty-eight pages, Thomas Paine accomplished three things fundamental to America.   Read more

March 10, 2011 – Article I, Section 05, Clause 3-4 of the United States Constitution – Guest Essayist: Scot Faulkner, Executive Director, The Dreyfuss Initiative on Civics

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Article 1, Section 5, Clause 3

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

Documenting public processes have been part of governing since the rise of early civilizations.  From the Sumerians in 2500 BC, to ancient Egypt and Babylon, governments have kept journals of their actions and public meetings. 

The Founding Fathers knew the importance of maintaining a Journal of Proceedings from the English House of Commons. James Wilson, a member of the Committee on Detail which compiled the provisions of the draft Constitution, was a follower of the great British parliamentary scholar Sir William Blackstone.  He quoted Blackstone’s Oxford 1756 lectures, which underscored the importance of a public record for holding officials accountable, “In the House of Commons, the conduct of every member is subject to the future censure of his constituents, and therefore should be openly submitted to their inspection.”

The Constitution’s “Journal of Proceedings” wording flows from the Articles of Confederation. In March 1781 the Continental Congress approved the following provision: “…and shall publish the Journal of their proceedings monthly, except such parts thereof relating to treaties, alliances or military operations, as in their judgment require secrecy; and the yeas and nays of the delegates of each state on any question shall be entered on the Journal, when it is desired by any delegate; and the delegates of a state, or any of them, at his or their request shall be furnished with a transcript of the said Journal, except such parts as are above excepted, to lay before the legislatures of the several states.”

But what is the Journal?  Every day the Congress approves the “Journal” of the previous session.  This is the official outline of actions taken during the previous meeting of each Chamber, like a set of minutes.  It is codified in Section 49 of Thomas Jefferson’s 1812 Parliamentary Manual that governs Congressional operations.  Members of Congress do not approve the Congressional Record.  That transcript of House and Senate proceedings has a colorful history.

The transcribing of Congressional debate was begun by private publishers.  House and Senate proceedings, roll calls, debates, and other records were recorded and published in The Debates and Proceedings in the Congress of the United States (1789–1824), the Register of Debates in Congress (1824–1837), and the Congressional Globe (1833–1873).

During the 36th Congress [December 5, 1859 to March 3, 1861] it was decided that federal funds should be used for transcribing Congressional proceedings and that the Government Printing Office should publish the verbatim record. The Congressional Globe was contracted to provide stenographers in the House and Senate Chambers. In 1873, the Globe’s contract was not renewed, and the Congressional Record was born.  The Clerk of the House and the Secretary of the Senate now oversee documenting and transcribing the verbatim proceedings of their respective chambers.

The Congressional Record is still not an accurate verbatim transcript of the proceedings and debate for each Chamber.  Members routinely insert remarks and documents after the fact.  While these “revised and extended remarks” help Members explain their actions, they are considered “secondary authorities” when it comes to determining legislative intent.  Secondary authorities are generally afforded less weight than the actual texts of primary authority during Judicial review.

The chronicling of Congress has come almost full circle.  While the Congressional Record remains the official transcript of proceedings, CSPAN, a nonprofit private entity, provides live coverage of each Chamber.  The cameras are owned and maintained by the Architect of the Capitol, while their operations and broadcasts are operated by staffs of the Chief Administrative Officer in the House and the Secretary of the Senate.  CSPAN receives the signal and airs it on its various cable television channels.  Live House broadcasting began on March 19, 1979 while Senate coverage commenced on June 2, 1986. 

Article 1, Section 5, Clause 4

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

The Constitutional Convention of 1787 made sure the two Congressional chambers had equity when it came of the operations of the Legislative Branch.  Neither the House nor the Senate may adjourn for more than three days (excluding Saturdays, Sundays, and holidays) without the concurrence of the other Chamber. The formal end of a Congress is when the Legislative Branch adjourns “Sine Die” (from the Latin “without day”) meaning “without assigning a day for a further meeting or hearing”.  The Constitution [Article 2, Section 3] also grants the President the authority to summon the Congress for a special session if circumstances require.  The Twentieth Amendment to the Constitution also sets a formal start and end time for each Congress.

 These various provisions have led to numerous unintended consequences.

 One of the first instances was when the Southern states seceded from the Union.  They deprived the sitting Congress of a quorum.  In order to continue governing, President Abraham Lincoln issued the very first Presidential Order on April 15, 1861, Executive Order 1.

The most complex consequence of Clause 4 relates to when Congress takes a recess and when it adjourns. A recess is a temporary halt to activity on the floor. Everything stops, and when the recess ends, the chamber resumes from where it left off. A recess might last 10 minutes or it might last weeks. The length of time does not matter. An adjournment is a formal end to business in the chamber, and upon return the chamber does not resume from where it left off. Just like a recess an adjournment can be for one minute or for three weeks. However, unlike a recess, an adjournment creates a new legislative day (this is more relevant to Senate proceedings).

Certain things happen, under the standing rules of the House and Senate, precisely because it is a new legislative day. Much of it is routine business: the reading of the previous day’s journal, filing of reports, delivery of messages from the House, etc., but there are also consequential things.  In the Senate, during the first two hours of each new legislative day, motions to proceed are not debatable, and therefore cannot be filibustered.

Any formal break in Legislative Branch activity also opens the door for a President to take certain actions.  This includes making appointments which require Senate confirmation, and “pocket vetoing” legislation.  A pocket veto means that the Congress cannot override the veto because it is not in session.  An adjournment of the Legislative Branch also allows the President to reconvene Congress for a specific action [Article 2, Section 3].  Congressional leaders have devised ways to avoid inadvertently unleashing Presidential activism.

 The Congress can take a break from legislative activity, and still avoid a formal recess or adjournment, by meeting in a “pro forma” session. Pro forma means “for the sake of formality”.  In recent years pro forma sessions have prevented Presidents from making recess appointments, and in the case of President George W. Bush in 2008, deprived him calling a special session to reauthorize the Protect America Act and the Foreign Intelligence Surveillance Act.

As long as a Member convenes either the House or Senate to formally open and close a session there is no recess or adjournment.  Members sometimes compete to see how fast they can conduct a pro forma session.  The record is currently held by Senate Jack Reed of Rhode Island who completed the task in 12 seconds.

Scot Faulkner served as the Chief Administrative Officer of the U.S. House of Representatives.  He earned a Masters in Public Administration from American University, and B.A. in Government from Lawrence University.  He is the Executive Director of The Dreyfuss Initiative on civics www.TheDreyfussInitiative.org