CHAPTER VII

UNDEMOCRATIC DEVELOPMENT

It has been shown that the main purpose of the Constitution was to limit

the power of the people. The recognition of this fact enables us to

understand much of the subsequent development of our political

institutions--a development for which the generally accepted theory of

our system affords no adequate explanation. The erroneous view of the

Constitution so generally inculcated has thus far misled the public as

to the true source of our political evils. It would indeed be strange if

some of the abuses incident to every form of minority rule had not made

their appearance under the operation of a system such as has been

described. Where the influence of public opinion has been so restricted,

it would be but reasonable to expect that the practical working of the

government would reflect something of the spirit of the Constitution

itself. As a consequence of these limitations originally placed upon the

power of the people, the development of our system has not been wholly

in the direction of democracy. The constitutional authority conferred

upon the minority has exerted a far-reaching influence upon the growth

of our political institutions. The natural effect of subordinating the

democratic element would be to render its influence more feeble as the

system developed. That this has not been a purely imaginary danger may

be easily shown.

The Constitution expressly gave to the qualified voters of the various

states the right to control the House of Representatives. It was because

of this fact, as explained in the preceding chapter, that this body was

subordinated in our scheme of government. Even the most perfect control

over this branch would have given the people no positive control over

the government as a whole. At the most, it conceded to them merely a

negative on a part of the acts and policy of the government. Yet popular

control over this branch of the government has become less and less

effective as our political system has developed.

The Constitution provides that "the times, places, and manner of holding

elections for senators and representatives shall be prescribed in each

state by the legislature thereof; but the Congress may at any time by

law make or alter such regulations, except as to the place of choosing

senators."[143]

It also provides that "Congress shall assemble at least once in every

year, and such meeting shall be on the first Monday in December, unless

they shall by law appoint a different day."

It also requires that the members of the House of Representatives shall

be elected every second year; but as originally adopted it does not

specify when their term of office shall begin.

After the ratification of the Constitution the Congress of the

Confederation on September 13, 1788, designated March 4, 1789, as the

time for commencing proceedings under the new régime. This made the term

of office of President, Senators, and Representatives begin on that

date.

An act of Congress, March 1, 1792, provided that the term of office of

President should "in all cases, commence on the fourth day of March next

succeeding the day on which the votes of the electors shall have been

given."

This date was recognized as the beginning of the President's term of

office by the Twelfth Amendment to the Constitution, which went into

effect in 1804. By implication this amendment makes the term of

representatives begin on the fourth of March of each odd year.

Congress, exercising the power vested in it by the Constitution to

regulate Federal elections, enacted a law bearing date of February 2,

1872, which requires the election of representatives to be held on the

Tuesday next after the first Monday in November of each even year,

beginning with the year 1876. By act of March 3, 1875, this was modified

so as not to apply to any state whose constitution would have to be

amended before the day fixed for electing state officers could be

changed in conformity with this provision.[144]

Congress has no power to change the date on which the term of office of

a representative begins; but it does have authority to change the time

of electing the House of Representatives, and also to determine when its

own sessions shall begin, subject to the constitutional limitation that

it shall meet at least once each year.

Under the law as it now stands the members of a newly elected House of

Representatives do not meet in regular session until thirteen months

after their election. Moreover, the second regular session does not

begin until after the succeeding Congress has been elected.

The evils of this arrangement are thus described by a member of the

House:

"The lower branch of Congress should at the earliest practicable time

enact the principles of the majority of the people as expressed in the

election of each Congress. That is why the Constitution requires the

election of a new Congress every two years. If it were not to reflect

the sentiments of the people then frequent elections would have no

meaning or purpose. Any evasion of that rule is subversive of the

fundamental principle of our government that the majority shall rule.

No other government in the world has its legislative body convene so

long after the expression of the people....

"As an election often changes the political complexion of a Congress,

under the present law, many times we have the injustice of a Congress

that has been repudiated by the people enacting laws for the people

diametrically opposed to the last expression of the people. Such a

condition is an outrage on the rights of the majority....

"Under the present law a representative in Congress who has been turned

down by the people legislates for that people in the second regular

session....

"A man who has been defeated for re-election is not in a fit frame of

mind to legislate for his people. There is a sting in defeat that tends

to engender the feeling of resentment which often finds expression in

the vote of such members against wholesome legislation. That same

feeling often produces such a want of interest in proceedings as to

cause the members to be absent nearly all the second session....

"It is then that some are open to propositions which they would never

think of entertaining if they were to go before the people for

re-election. It is then that the attorneyship of some corporation is

often tendered and a vote is afterward found in the record in favor of

legislation of a general or special character favoring the

corporation."[145]

To appreciate the magnitude of the evils above described, it is

necessary to remember that upon the average only about one-half of the

members of one Congress are elected to the succeeding Congress. This

large number is, therefore, influenced during the second regular session

neither by the hope of re-election nor the fear of defeat. Under these

circumstances it is not surprising that the second regular session

should be notoriously favorable to corporation measures.

That Congress has not attempted to remedy this evil is striking proof of

its indifference to the wishes of the people. Otherwise it would have so

employed the power which it possesses to perfect its organization, as to

ensure the most prompt and complete expression of public opinion in

legislation possible under our constitutional arrangements. Having the

power to change both the time of electing a Congress and the beginning

of its sessions, it could easily remedy the evils described. Both

sessions of a Congress could be held before the succeeding Congress is

elected. This could be accomplished by having Congress convene, as

advocated by the writer of the article above mentioned, for the first

regular session on the Monday following the fourth of March next after

the election, and for the second regular session on the first Monday

after January first of the following year. In this case the second

regular session would doubtless come to an end before the fall election.

Some such adjustment is required to give the people anything like

adequate control over the House of Representatives during the second

regular session.

The present arrangement which makes the House of Representatives largely

an irresponsible body, while not provided for or perhaps even

contemplated by the framers of the Constitution, is nevertheless the

logical outcome of their plan to throttle the power of the majority. But

although in harmony with the general purpose and spirit of the

Constitution, it is a flagrant violation of the basic principle of

popular government.[146]

This tendency may be still more clearly seen in the growth of the

committee system by which the division of power and its consequence,

political irresponsibility, have been carried much farther than the

Constitution contemplated, especially in the organization of the House,

of Representatives. No standing committees were provided for by the

Constitution and few were established by the House during the early

years of its existence. The system once introduced, however, has

gradually developed until the House now has more than fifty-five of

these committees.

Every legislative proposal must under the rules after its second reading

be referred to the committee having jurisdiction over that particular

branch of legislation. Theoretically, any member has a right to

introduce any bill whatever. But as it must be referred to the proper

committee and be reported by it to the House before the latter can

discuss and adopt or reject it, it is evident that the right to initiate

legislation has in effect been taken from the individual members and

vested in the various standing committees. Under this method of

procedure no proposed legislation can be enacted by the House without

the consent of the committee having that particular branch of

legislation in charge. The fact that a measure must be referred to a

committee does not imply that that committee is obliged to report it

back to the House. This the committee will, of course, do if the

proposed bill is one which it wishes to have passed. But if it views the

proposed legislation with disfavor, it may revise it so as to make it

conform to its own wishes, or it may report it so late in the session as

to prevent its consideration by the House, or it may neglect to report

it altogether. This virtually gives a small body of men constituting a

committee a veto on every legislative proposal. The extent to which this

system diminishes the responsibility of the House can not be fully

appreciated without bearing in mind the manner of appointment and

composition of the committees. The Constitution provides that "the House

of Representatives shall choose their speaker and other officers,"[147]

but it makes no mention of the speaker's powers. The right to appoint

the committees is not conferred on the speaker by the Constitution. The

extent and character of the powers exercised by that official are

determined very largely by the rules and usages of the House. This is

the source of his power to appoint the chairman and other members of the

various standing committees.

The speaker is elected at the beginning of each Congress and retains his

office during the life of that body. The same is now true of the

standing committees which he appoints, though previous to 1861 they were

appointed for the session only.

The speaker is, of course, a member of the dominant party in the House,

and is expected to use the powers and prerogatives of his office to

advance in all reasonable ways the interests of the party which he

represents. The selection of committees which he makes is naturally

enough influenced by various considerations of a political and personal

nature. It is largely determined by the influences to which he owes his

elevation to the speakership. In return for the support of influential

members in his own party certain important chairmanships have been

promised in advance. And even where no definite pledges have been made

he must use the appointive power in a manner that will be acceptable to

his party. This does not always prevent him, however, from exercising

enough freedom in making up the committees to insure him a large measure

of control over legislation.

All the chairmanships and a majority of the places on each committee are

given to the members of his own party. As the speaker's right to appoint

does not carry with it the power to remove, he has no control over a

committee after it is appointed. The committees, as a matter of fact,

are in no true sense responsible either to the speaker or to the House

itself, since once appointed they can do as they please. They are in

fact just so many small, independent, irresponsible bodies, each

controlling in its own way and from motives known only to itself the

particular branch of legislation assigned to it. The only semblance of

responsibility attaching to the committee is found in the party

affiliation of the majority of its members with the majority in the

House. But ineffectual and intangible as this is, it is rendered even

more so by the fact that the opposition party is also represented on

each committee. This allows the dominant party to escape

responsibility, since it can claim that its failure to satisfy the

popular demand has been due to the opposition of the minority in the

various committees, which has made concession and compromise necessary.

"The deliberations of committees," as Bryce says, "are usually secret.

Evidence is frequently taken with open doors, but the newspapers do not

report it, unless the matter excite public interest; and even the

decisions arrived at are often noticed in the briefest way. It is out of

order to canvass the proceedings of a committee in the House until they

have been formally reported to it; and the report submitted does not

usually state how the members have voted, or contain more than a very

curt outline of what has passed. No member speaking in the House is

entitled to reveal anything further."[148]

A system better adapted to the purposes of the lobbyist could not be

devised. "It gives facilities for the exercise of underhand and even

corrupt influence. In a small committee the voice of each member is well

worth securing, and may be secured with little danger of a public

scandal. The press can not, even when the doors of committee rooms stand

open, report the proceedings of fifty bodies; the eye of the nation can

not follow and mark what goes on within them; while the subsequent

proceedings in the House are too hurried to permit a ripping up there

of suspicious bargains struck in the purlieus of the Capital, and

fulfilled by votes given in a committee."[149]

A system which puts the power to control legislation in the hands of

these small independent bodies and at the same time shields them so

largely against publicity affords ample opportunity for railway and

other corporate interests to exercise a controlling influence upon

legislation.

This subdivision of the legislative power of the House and its

distribution among many small, irresponsible bodies precludes the

possibility of any effective party control over legislation. And since

the majority in the House can not control its own agents there can be no

effective party responsibility. To ensure responsibility the party in

the majority must act as a unit and be opposed by an active and united

minority. But our committee system disintegrates both the majority and

the minority.

Another practice which has augmented the authority and at the same time

diminished the responsibility of the committees is the hurried manner in

which the House disposes of the various measures that come before it.

The late Senator Hoar has estimated that the entire time which the House

allows for this purpose during the two sessions which make up the life

of a Congress "gives an average of no more than two hours apiece to the

committees of the House to report upon, debate, and dispose of all the

subjects of general legislation committed to their charge. From this

time is taken the time consumed in reading the bill, and in calling the

yeas and nays, which may be ordered by one-fifth of the members present,

and which require forty minutes for a single roll-call."[150]

Moreover, the member "who reports the bill dictates how long the debate

shall last, who shall speak on each side, and whether any and what

amendments shall be offered. Any member fit to be intrusted with the

charge of an important measure would be deemed guilty of an inexcusable

blunder if he surrendered the floor which the usages of the House assign

to his control for an hour, without demanding the previous

question."[151]

Nothing more would seem to be necessary to give the committee control of

the situation. True the House may reject the bill which it submits, but

the committee may easily prevent the House from voting upon a measure

which a majority of that body desires to enact.

As there are many committees and the time which the House can give to

the consideration of their reports is limited, it naturally follows that

each committee is anxious to get all other business out of the way in

order that it may have an opportunity to bring the measures which it

has prepared to the attention of the House. This struggle between the

various committees for an opportunity to report the bills which they

have framed and have them considered by the House explains the

acquiescence of that body in a system that so greatly restricts the

freedom of debate. Very rarely will a committee encounter any formidable

opposition in bringing the discussion of its measures to a close.

The speaker's power of recognition is another check upon the majority in

the House. This power which he freely uses in an arbitrary manner

enables him to prevent the introduction of an obnoxious bill by refusing

to recognize a member who wishes to obtain the floor for that

purpose.[152] Moreover, as chairman of the Committee on Rules he

virtually has the power to determine the order in which the various

measures shall be considered by the House. In this way he can secure an

opportunity for those bills which he wishes the House to pass and ensure

the defeat of those to which he is opposed by giving so many other

matters the preference that they can not be reached before the close of

the second session.

The power thus exercised by the speaker, coupled with that of the

committees, imposes an effectual restraint not only on the individual

members, but on the majority as well. A large majority of the bills

introduced are vetoed by the committees or "killed" by simply not

reporting them back to the House. There is no way in which the House can

override the veto of a committee or that of the speaker, since even when

the rules are suspended no measure can be considered that has not been

previously reported by a committee, while the speaker can enforce his

veto through his power of recognition. Both the committees and the

speaker have what is for all practical purposes an absolute veto on

legislation.

A motion to suspend the rules and pass any bill that has been reported

to the House may be made on the first and third Mondays of each month or

during the last six days of each session. "In this way, if two-thirds of

the body agree, a bill is by a single vote, without discussion and

without change, passed through all the necessary stages, and made law so

far as the consent of the House can accomplish it. And in this mode

hundreds of measures of vital importance receive, near the close of

exhausting sessions, without being debated, amended, printed, or

understood, the constitutional assent of the representatives of the

American people."[153]

This system which so effectually restricts the power of the majority in

the House affords no safeguard against local or class legislation. By

making it difficult for any bill however worthy of consideration to

receive a hearing on its own merits, it naturally leads to the practice

known as log-rolling. The advocates of a particular measure may find

that it can not be passed unless they agree to support various other

measures of which they disapprove. It thus happens that many of the

bills passed by the House are the result of this bargaining between the

supporters of various measures. Certain members in order to secure the

passage of a bill in which they are especially interested will support

and vote for other bills which they would prefer to vote against. In

this way many bills secure a favorable vote in the House when a majority

of that body are really opposed to their enactment. It is entirely

within the bounds of possibility that no important measure desired by

the people at large and which would be supported by a majority of the

House, can be passed, since any powerful private interest opposed to

such legislation may be able to have the measure in question quietly

killed in committee or otherwise prevented from coming to a final vote

in the House. But while legislation in the interest of the people

generally may be defeated through the silent but effective opposition of

powerful private interests, many other measures which ought to be

defeated are allowed to pass. A system which makes it possible to defeat

the will of the majority in the House by preventing on the one hand the

enactment of laws which that majority favors, and by permitting on the

other hand the enactment of laws to which it is opposed, certainly does

not allow public opinion to exercise an effective control over the

proceedings of the House.

As a foreign critic observes, "the House has ceased to be a debating

assembly: it is only an instrument for hasty voting on the proposals

which fifty small committees have prepared behind closed doors.... At

the present time it is very much farther from representing the people

than if, instead of going as far as universal suffrage, it had kept to

an infinitely narrower franchise, but had preserved at the same time the

freedom, fullness, and majesty of its debates."[154]

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