Role Of Congress As Representative Government & The Rise Of The Progressive Administrative State – Guest Essayists: Joseph Postell & Samuel Postell

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As the two previous essays have explained, we are increasingly governed not by our elected officials in Congress, but rather by an administrative state which makes most of the national government’s policies.  How has this affected the way Congress functions, and how it represents the people?  The administrative state has fundamentally changed the way Congress works, and this change has taken place over two distinct eras.

Throughout most of the twentieth century, while the administrative state was being constructed and expanded, Congress decentralized its power to committees.  These committees specialized in the subjects that the bureaucracy was created to regulate: agricultural production, workplace safety, consumer product safety, aviation policy, financial regulation, environmental protection, and so forth.  By decentralizing its own power into these specialized committees, Congress created a system that enabled it to supervise and oversee the work of the administrative state.

Congress was able to remain in control of the administrative state, in spite of the fact that the bureaucracy was ostensibly controlled and supervised by the executive branch.  Congress remained in charge due to two powers: the power to empower agencies by authorizing them to make policy, and the power to appropriate money to agencies.  Agencies needed Congress to give them power and funding.  This meant that when members of Congress – typically those on the relevant committee – demanded agencies to make certain decisions, the bureaucrats were happy to oblige.

Congress’s structure, throughout the twentieth century, in other words, was perfectly designed to supervise the administrative state it created.  But it was no longer representing the people in the making of law.  Instead, individual members had power, due to their committee assignments, to please their own constituents rather than deliberating with their colleagues on the bills that would promote the good of the country.

During this period, both parties in Congress largely supported the increasing role of the administrative state in making policy.  Members of Congress, regardless of their party affiliation, enjoyed the benefits that they derived from the administrative state.  Political ideology mattered a lot less than whether a member could bring home benefits to his or her constituents, and members were happy to play this role regardless of their partisan affiliation.  Congress could pass vague bills that promised to accomplish huge goals such as cleaning the air and improving automobile safety, but the costs would be imposed by the agencies that implemented the regulations necessary to attain those goals.

This is surely one reason why, throughout the twentieth century, the nation witnessed a steady increase in reelection rates to Congress, the rise of career members of Congress, and a decrease in voters’ sense that the government reflects their wishes.

Things have changed in important ways since the last century, however.  Instead of both parties in Congress agreeing on the legitimacy of the administrative state, and using it to promote the narrow interests of their constituents, one party has begun to question the legitimacy of the modern administrative state completely.  As the Republican Party became more consistently conservative, culminating in the 1994 and 2010 midterm elections, partisan politics has reemerged in Congress.  Newt Gingrich, the Speaker of the House after 1994, took some powers away from committees and centralized some power in the Speaker’s hands, allowing the party leaders in Congress to bring partisan politics, and the fight over the size of the national government, back into Congress.

In this second phase of the relationship between Congress and the administrative state, Congress is no longer content to oversee the exercise of administrative power.  Instead, one party in Congress seeks to constrain this administrative state, while the other defends it.  This has made Congress more polarized and more gridlocked, but it has also caused Congress to become weaker.  Congress was still an “impetuous vortex” in the twentieth century, just as James Madison had predicted it would be.  It ostensibly delegated power to the bureaucracy, but it controlled the bureaucracy behind the scenes.  Today, on the other hand, Congress has become so deeply divided that its members no longer act institutionally, defending and expanding congressional control of the administrative state.  Instead, they fight over the legitimacy of the modern state itself.

Paradoxically, the administrative state did not gain its powers at the expense of Congress.  Rather, Congress gained the most when it delegated lawmaking power to the bureaucracy, because members could claim credit for fixing problems but avoid the responsibility for the modern state’s costs.  As Congress has become increasingly polarized and gridlocked, it neither oversees the administrative state systematically, nor has it regained the original responsibility for making laws that our Constitution’s Founders envisioned it should have.  It is increasingly relegated to the periphery of American politics, eclipsed by the President, by the Supreme Court, and the bureaucracy.  Far from the republic’s crown jewel, Congress sadly has become the country’s most despised political institution.  It no longer resembles the representative, lawmaking body that the Founders intended it to be.

Joseph Postell is Associate Professor of Political Science at the University of Colorado-Colorado Springs.  He is the author of Bureaucracy in America: The Administrative State’s Challenge to Constitutional Government.  He is also the editor of Rediscovering Political Economy and Toward an American Conservatism: Constitutional Conservatism during the Progressive Era.  Follow him on Twitter @JoePostell.

 

Samuel Postell is a Ph.D. student at the University of Dallas.

Revolt Of 1910 Against House Speaker Joseph Cannon (1836-1926) (R-IL) – Guest Essayists: Joseph Postell and Samuel Postell

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Every fourth of July American citizens recognize the signing of the Declaration of Independence and the revolution that gave birth to our country, but very few remember the revolution that occurred in Congress about one hundred years after the revolutionary war.  That revolution has had profound effects on how Congress works today.

This revolt occurred in 1910 and was a revolt against the Speaker of the House.  It featured Joseph Cannon, a powerful and formidable speaker who used his power to the hilt in order to ensure that the will of his party was carried out through the representative body of the nation. The revolt against the Speaker is not only a unique story in our nation’s history, but one that modified the orders of the House and the powers of its Speaker.

Prior to this revolt Speakers of the House had three important powers that allowed them to fulfill the will of their party. They had the power of committee appointment, the power of recognition, and they were the chair of the “rules committee.” These powers in tandem allowed the Speaker to dictate the bills that would reach the floor, recognize who would speak on the given bill, and also determine the rules that governed the deliberation upon the bills.  Speakers would typically use these powers on behalf of their party, to ensure that the majority party was able to pass the agenda that voters sent them to Congress to enact.

In 1910, however, the Republican Party, of which Cannon was the leader in the House, was divided between conservatives and progressives.  Cannon, a conservative, was consistently suppressing the influence of the progressives in his own party.  Progressive politicians, who deeply distrusted parties in general, began to resent the power vested in the Speaker which was being used to thwart them.  They believed that political parties rendered government corrupt and irresponsible; that the laws that actually governed the nation were not a product of the people, but rather of a select group of interested individuals who used their personal influence to control the government.

It was a progressive Republican, George Norris of Nebraska, who worked to weaken party power at the Congressional level. After serving in Congress for many years, the opportune time finally arose. On Saint Patrick’s Day, 1910, while many of the Republican representatives were out celebrating, Norris introduced a resolution to strip Speaker Cannon of his power over the Rules Committee, which had the power to send bills to the floor of the House for debate, vote, and passage.  He noticed that many of Cannon’s loyal partisans were out celebrating and thus unable to swing the vote in defense of their party leader.

There was a problem: Cannon had the power to determine whether Norris could introduce his resolution in the first place.  Norris claimed that his resolution was privileged by the Constitution and therefore had priority over all other business.  This would mean that even the Speaker could not prevent the House from proceeding with the resolution.  Cannon had to determine whether the Norris resolution was privileged, but he knew that the entire House would vote either to uphold or to overturn his ruling.  Stalling, he allowed members of the House to debate whether the resolution was privileged, and the debacle lasted the entire night.  Shortly after midnight the sergeant at arms was ordered to take absent members into custody and bring them back to the House to produce a quorum.

The debate, which began in the middle of the afternoon on March 17th, ended with no decision at 2 P.M. on March 18th. The following day Cannon ruled that the resolution was not privileged, and therefore could not be heard. Norris and his allies were prepared for this and they appealed to the entire House. Cannon was overruled in a vote of 182 to 163, and Norris’ resolutions passed by a margin of 191 to 156.

From that point on, the Speaker of the House would never again have the powers that enabled him to represent the will of his party and push his party’s agenda through the House of Representatives.  Committee chairs became “barons” of the House, no longer subject to the control of Speakers and the majorities they represented.  This committee chair-dominated system lasted for decades, until recently, when the Speaker regained some of his influence, including the power to appoint the members of the Rules Committee.  Still, even today, Speakers are much weaker than they were in Cannon’s day.  Back then, they were called “czars.”  Today, they have the ability to determine the agenda, but not the power to influence members of the House to vote for it.

Joseph Postell is Associate Professor of Political Science at the University of Colorado-Colorado Springs. During the 2017-18 academic year he is a visiting fellow in the B. Kenneth Simon Center for Principles and Politics at The Heritage Foundation. Postell is the author of Bureaucracy in America: The Administrative State’s Challenge to Constitutional Government.  He is also the editor of Rediscovering Political Economy and Toward an American Conservatism: Constitutional Conservatism during the Progressive Era.  Follow him on Twitter @JoePostell.

Samuel Postell is a Ph.D. student at the University of Dallas.

Committees – History & Purpose In The United States Congress – Guest Essayists: Joseph Postell & Samuel Postell

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The Constitution is entirely silent on the question of committees in Congress.  It does not require the existence of any committees at all.  In fact, during the first few decades of our nation’s history, there were no permanent standing committees.  Those early congresses, many of which contained so many of the Framers of the Constitution, decided that the nation’s laws could be crafted without the assistance of committees.

In other words, we have not always had committees and we have not always needed them.  Even when we have had committees in Congress, their power, purposes, and processes have changed dramatically over time.  Committees began as weak bodies accountable to everyone in Congress, eventually became the most powerful institutions in Congress, and recently have seen their influence diminish.  Understanding the history of committees’ rise and fall helps us to see what effect they have on Congress.  While committees can and should play a role in helping Congress do its work, they often have perverse effects on how our representatives behave and the laws they enact.

Originally, Congress used “Select” or ad hoc committees to do its work.  These committees were not permanent, but merely temporary, formed only for a single purpose.  When an issue was presented to the whole House of Representatives for debate, the members would discuss it and come to agreement before sending it to a select committee.  Once the select committee wrote a bill based on the agreement reached by the entire House, it would dissolve, and the bill would go to the floor of the House for further discussion and passage.  In this process, the committees’ role was minimal, and serving on a committee did not give a member any additional power.

During the 1810s and 1820s, Congress saw the need to create permanent committees with settled jurisdiction.  These “Standing” committees, which remain in existence today, took on more authority, including the ability to write and amend legislation.  Members sought to be assigned to the committees that gave them more influence over the issues that mattered to their constituents.  For instance, members from farm districts might wish to be on agricultural committees so that they could influence legislation that affected their constituents’ interests.

These standing committees, therefore, present both advantages and problems for Congress’s functioning.  On the one hand, they allow for a more efficient legislative process and give Congress greater expertise on specific issues.  Instead of being forced to discuss every issue as a whole body, committees allow Congress to divide into smaller units to screen legislation, managing its workload.  It also allows members to specialize in certain areas through longstanding membership on committees.  On the other hand, if committees have influence over legislation, and members seek committee assignments that allow them to advance their constituents’ interests, then committees can enable special interests to gain greater influence in the legislative process.

The history of committees’ rise and fall in Congress shows these advantages and disadvantages in action.  During the middle part of the 19th Century, committees became so powerful that Woodrow Wilson famously wrote that “Congress in session is Congress on public exhibition, whilst Congress in its committee-rooms is Congress at work.”  Committees wrote most legislation, and amendments to their legislation were minimal.  Once a bill reached the floor, it would be passed in largely the same form as it was written by a committee.

After the Civil War, however, strong political parties emerged to discipline these committees.  Members like the Speaker of the House controlled the legislative process through the power of recognition, the power of appointment, and through controlling the rules committee which was in charge of sending bills to the floor for passage.  Committees and their chairs knew that they could not pass legislation if the party leadership opposed it.  The emergence of party leadership allowed the majority party to resist the influence of narrow, special interests that might dominate at the committee level.

But the party discipline of the post-Civil War period was short-lived.  In the early 20th Century, Progressives succeeded in weakening the Speaker of the House, and imposed new rules that limited party leaders’ influence over legislation.  In 1910 George Norris led the minority Democrats of the House in a revolt against Speaker Joe Cannon. Soon after the Speaker was stripped of his power to decide membership on House committees, and power became decentralized. As a result, committees once again emerged as the most powerful bodies in Congress.  They were so powerful that their chairs gained complete control of the legislative agenda. These committee chairs were called the “barons” of Congress.  Unfortunately, they refused to follow the will of Congress as a whole, and followed their own wishes instead.  Congress became out of touch with the people in the middle of the 20th Century as a result of the power and autonomy of these committees.

Today, committees are weaker than they were in the middle of the last century.  Both parties limit the tenure of their committee chairs, so that they do not become too powerful and independent of the whole Congress.  Members of Congress receive their committee assignments from their parties, and can be removed from committees if they fail to act in the party’s interest.  Committees are still very powerful, but they are now more accountable to parties than they were fifty years ago.  The late-19th Century era of party dominance has not returned, but we are no longer in the era of strong, independent committees either.

This history suggests two lessons for us today.  First, the rules regarding how committee members are chosen and what powers committees have to write legislation are highly important to how Congress works.  If committee power is unchecked by Congress as a whole, their advantages (efficiency and expertise) and disadvantages (influence of narrow interests) will be increased.  If committees are more accountable to Congress as a whole, including their party leaders, Congress will be more inefficient and have less expertise, but narrow interests will be disciplined by the national majority.  Many of the problems we see in Congress today are the result of reforms to the committee process.

Second, committees provide Congress with a double-edged sword.  They help Congress do its job, but they also threaten to subvert the legislative process, dividing Congress into many subunits, each of which advance a narrow, special interest rather than the common good.  If they are not held accountable to the whole Congress, through rules that allow party leaders to influence committees and allow members to amend legislation after it leaves committees, they can threaten the very purpose of Congress: to make laws that reflect the sense of the majority rather than the interests of the powerful.

Joseph Postell is Associate Professor of Political Science at the University of Colorado-Colorado Springs.  He is the author of Bureaucracy in America: The Administrative State’s Challenge to Constitutional Government.  He is also the editor of Rediscovering Political Economy and Toward an American Conservatism: Constitutional Conservatism during the Progressive Era.  Follow him on Twitter @JoePostell.

Samuel Postell is a Ph.D. student at the University of Dallas.

Thomas Brackett Reed (1839-1902) – House Speaker From Maine Known For “Reed’s Rules” – Guest Essayists: Joseph Postell & Samuel Postell

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Once upon a time the House of Representatives was dominated by party leaders, especially the Speaker of the House.  The Speaker had extensive power to set the agenda and extensive tools to enforce that agenda.  While every representative in the House was elected by a distinct group of constituents, the majority was united in pursuing a common goal thanks to this leadership.

The man who was most responsible for this party organization in Congress was Thomas Brackett Reed. Sometimes called “Czar Reed” because of his immense power, he was primarily responsible for the implementation of the “Reed Rules” adopted in 1890.

A Republican from Maine, Reed was Speaker of the House of Representatives from 1889-1891 and again from 1895-1899.  He was known for his quick wit in legislative debates and his understanding and deployment of parliamentary procedure.  During one legislative debate, a Democrat invoked Henry Clay’s quote that he would rather be right than be president.  Reed replied, “The gentleman needn’t worry. He will never be either.”  Henry Cabot Lodge later called Reed “the finest, most effective debater that I have ever seen or heard.”

Reed approached the rules of the House of Representatives with a simple, fundamental principle in mind.  “The best system,” as he put it, “is to have one party govern and the other party watch.”  And this system required two things: a strong, unified, cohesive set of parties, and procedures that allowed the majority to rule rather than be delayed continually by the minority.

Upon being narrowly elected Speaker over William McKinley, Reed set out to implement this system in the House.  When Reed gained the gavel, the House did almost nothing on an average day. Through the use of dilatory motions and tactics (uses of parliamentary procedure to delay the majority from getting things done) Democrats in the House were able to obstruct the Republican Party prior to Reed’s speakership.

One of these tactics was the “disappearing quorum.”  Because the House must have a quorum to conduct business, the Democrats who were in the minority would frequently object that a quorum was lacking.  In response, the House would have to call the roll, which caused considerable delay.  In addition to the delay, the rules of the House stated that if a person did not respond, they would not be counted as present.  Therefore, Democrats in the minority would simply refuse to answer the roll call, making the quorum “disappear.”

The disappearing quorum was Reed’s first target.  In January of 1890, facing a disappearing quorum over a contested election, Reed ordered the House Clerk to record Democrats not responding as present. In response, many Democrats scrambled under their desks to hide from the Clerk, and they objected vigorously to Reed’s change.  Reed ordered everyone in the room to be counted, and after several days, his decisions were upheld and the disappearing quorum was over.

Reed’s rules changes put the majority, acting through the Speaker as its leader, firmly in control of the House.  The Reed Rules limited the use of dilatory tactics, lowered quorum requirements, and put the majority in charge of considering and amending legislation.  Reed explained the rationale for these changes:

“The object of a parliamentary body is action, and not stoppage of action.  Hence, if any member or set of members undertakes to oppose the orderly progress of business…it is the right of the majority to refuse to have those motions entertained, and to cause the public business to proceed.”

The Speaker’s powers had also grown during the late 19th Century, so that the Speaker was able to use his power, combined with the majority’s power to act, to exert tremendous control over the House.  Three of the Speaker’s powers, in particular, were critical: (1) the power to appoint all members and chairs of committees, (2) the power of recognition, which allowed him to recognize members wishing to speak on the floor of the House, and (3) the chairmanship of the Rules Committee, which was nearly the only way that a bill could actually reach the floor of the House for an up-or-down vote.

At the time, many people objected to the accumulation of power in the majority, and in the majority party leadership.  They called Speakers “czars” and tyrants.  The New York Times ran headlines such as: “Bolder in his Tyranny: Heaping Fresh Indignity on the Minority: Reed Confirmed as Dictator of the House – Refusing Even to Recognize the Democrats.”  But Reed defended these changes as necessary reforms to allow the majority party, which received its powers from the people, to implement the laws that the people desired.

There were many advantages to the Reed Rules.  They promoted party accountability, which meant that the people could be confident that if they gave one party or the other a majority in the House, legislation would follow.  In addition, power stayed with Congress, rather than shifting over to the President, because the House set the legislative agenda instead of waiting for the President to suggest which bills should be passed.

Today’s Congress accomplishes a lot less than the one over which Reed presided because party leaders no longer have the powers that Reed created.  Majority party cohesion has been undermined, and the leaders of the majority party are increasingly incapable of advancing necessary reforms.  As a result, the people increasingly look to the President.  Studying Reed’s vision for the House of Representatives reveals another possibility: with stronger parties, Congress can maintain its own authority, and accomplish the business of the people more efficiently, than it does today.  Reed and his rules illustrate a potential solution for the disappearing role of Congress in contemporary American politics.

Joseph Postell is Assistant Professor of Political Science at the University of Colorado-Colorado Springs.  He is the author of the forthcoming book Bureaucracy in America: The Administrative State’s Challenge to Constitutional Government.  He is also the editor of Rediscovering Political Economy and Toward an American Conservatism: Constitutional Conservatism during the Progressive Era. Follow him on Twitter @JoePostell.

Samuel Postell is a Ph.D. student at the University of Dallas.

 

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Henry Clay (1777-1852) – House Speaker, Whig Party Leader, Kentucky Senate Member – Guest Essayist: Sam Postell

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Henry Clay: The Man for a Crisis

Henry Clay led a political career that spanned almost fifty years and was Speaker of the House for almost ten. According to some, Clay was a hero, and to others, he was a villain. For example Abraham Lincoln described Clay as his “Beaux ideal of a statesman”, while Andrew Jackson described him as “the basest, meanest, scoundrel that ever disgraced the image of his god”, and “void of good morals… ambitious and regardless of truth when it comes in the way of his ambition”. Although opinions regarding his character are conflicted, all understood that he shaped Congress in fundamental ways. He was the first to understand that Congress was in need of leadership and order to be considered an important power rather than a mere servant of the president.

Before Clay became speaker he was nominated to fill a vacancy in the Senate. After his second term he decided to leave the Senate and run for election to the U.S. House of Representatives. As he announced his candidacy all other candidates withdrew their names from the ballot.

Before Clay had attended a single session as a Representative in the House, he was elected Speaker on the first ballot. Many representatives in the House were intimated by John Randolph, a Representative from Virginia who “ran roughshod” over the proceedings of the House. He would often bring his hunting dogs into the House, and he would filibuster in order to derail its proceedings. It was said that Randolph “disregards all rules” and Clay’s supporters decided that the Speaker “must be a man who can meet John Randolph on the floor or on the field, for he may have to do both” (Sargent, Public men and Events, I,130).

Henry Clay fulfilled the wishes of the members of the 12th Congress and was reelected Speaker for the next ten years. The clearest demonstration of his promise to enforce, and even manipulate, the rules of the House is his role in the passage of the Missouri Compromise. There were three separate bills to be considered: first, Missouri’s application for statehood as a slave state, second, Maine’s application for statehood as a free state, and third was an amendment prohibiting slavery north of the 36’30’ parallel with the exception of Missouri.

The House at first rejected the bill that tied the three together. Clay decided that he would separate the three bills and attempt to pass each individually. On February 8, 1820, Clay gave an unrecorded speech that lasted over four hours attempting to persuade the Northern abolitionists to pass the compromise in order to quell Southern threats of secession. Although deliberation upon the three bills lasted the entire month of February, on March 2nd each bill was passed individually.

However, Clay’s work was not yet done. John Randolph rose in the House and asked that the vote be reconsidered. Henry Clay announced that it was late and that the motion would be postponed until the following day. The next day Randolph again rose to have the vote reconsidered. Clay ruled him out of order until the routine business had concluded. Meanwhile, Clay signed the Missouri Bill and had the clerk deliver it to the Senate for a vote. When Randolph rose once more Clay announced that the bill could not be retrieved- the vote was final. On March 6th President Monroe signed the Missouri bill. Clay’s role in the passage of the Missouri bill demonstrates a principle that survives to this day: the principle of majority rule and the Speaker’s role in ensuring that the majority cannot be undermined by the actions of a single representative or a faction.

Later in the Senate, Clay endeavored to advance the same principle but with less success. Not only was Henry Clay an actor in the questions of the Missouri Compromise and the War of 1812, but he also played a role in the debate regarding the rechartering of the Bank of the United States. Early in his career he argued that the National Bank was unconstitutional, but after experiencing the difficulties of financing the War of 1812 he began to view it as a necessity. Andrew Jackson claimed that Clay was inconsistent, to which Clay responded in an impassioned speech claiming that “the constitution has not changed… I was at first wrong.”

When the Senate came to vote on the Bank Bill in June of 1841, Clay became upset to see many representatives dragging their heels. Rather than discuss and vote upon the bill, many members of the minority filibustered, speaking on issues not pertaining to the bill. This led Henry Clay to introduce a motion to amend the rules to prevent the minority from delaying the proceedings of the Senate. Many members of the minority party, included John Calhoun and president pro-tempore William King, argued that the minority had the Constitutional right to speak in session, and that any attempt to “gag” members of the minority was unconstitutional. Clay eventually buckled under the pressure of the other members and relented on his motion to change the Senate rules; however, the Bank Bill was finally voted upon and passed the Senate on July 28th.

Not only was Henry Clay the man for a crisis and a controversial figure in his day, but he left his mark on the way that Congress deliberates upon and passes legislation. Clay was the first to understand that Congress was in need of leadership if it were to be understood as an important power of the government rather than a mere servant of the president. Although he was a man of action, his speeches bequeath a rich knowledge of constitutional theory that allow us to appreciate the importance of the rules and orders of the legislature.

Sam Postell is a doctoral candidate in Politics at the University of Dallas.

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