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]