Chapter 11 | Congress 403

Chapter 11

Congress

Figure 11.1 While the Capitol is the natural focus point of Capitol Hill and the workings of Congress, the Capitol
complex includes over a dozen buildings, including the House of Representatives office buildings (left), the Senate
office buildings (far right), the Library of Congress buildings (lower left), and the Supreme Court (lower right). (credit:
modification of work by the Library of Congress)

Chapter Outline
11.1 The Institutional Design of Congress
11.2 Congressional Elections
11.3 Congressional Representation
11.4 House and Senate Organizations
11.5 The Legislative Process

Introduction
When U.S. citizens think of governmental power, they most likely think of the presidency. The framers of
the Constitution, however, clearly intended that Congress would be the cornerstone of the new republic.
After years of tyranny under a king, they had little interest in creating another system with an overly
powerful single individual at the top. Instead, while recognizing the need for centralization in terms
of a stronger national government with an elected executive wielding its own authority, those at the
Constitutional Convention wanted a strong representative assembly at the national level that would use
careful consideration, deliberate action, and constituent representation to carefully draft legislation to meet
the needs of the new republic. Thus, Article I of the Constitution grants several key powers to Congress,
which include overseeing the budget and all financial matters, introducing legislation, confirming or
rejecting judicial and executive nominations, and even declaring war.
Today, however, Congress is the institution most criticized by the public, and the most misunderstood.
How exactly does Capitol Hill operate (Figure 11.1)? What are the different structures and powers of the
House of Representatives and the Senate? How are members of Congress elected? How do they reach their
decisions about legislation, budgets, and military action? This chapter addresses these aspects and more as
it explores “the first branch” of government.
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11.1 The Institutional Design of Congress

Learning Objectives
By the end of this section, you will be able to:
• Describe the role of Congress in the U.S. constitutional system
• Define bicameralism
• Explain gerrymandering and the apportionment of seats in the House of Representatives
• Discuss the three kinds of powers granted to Congress

The origins of the U.S. Constitution and the convention that brought it into existence are rooted in
failure—the failure of the Articles of Confederation. After only a handful of years, the states of the union
decided that the Articles were simply unworkable. In order to save the young republic, a convention was
called, and delegates were sent to assemble and revise the Articles. From the discussions and compromises
in this convention emerged Congress in the form we recognize today. In this section, we will explore
the debates and compromises that brought about the bicameral (two-chamber) Congress, made up of a
House of Representatives and Senate. We will also explore the goals of bicameralism and how it functions.
Finally, we will look at the different ways seats are apportioned in the two chambers.

THE GREAT COMPROMISE AND THE BASICS OF BICAMERALISM

Only a few years after the adoption of the Articles of Confederation, the republican experiment seemed
on the verge of failure. States deep in debt were printing increasingly worthless paper currency, many
were mired in interstate trade battles with each other, and in western Massachusetts, a small group of
Revolutionary War veterans angry over the prospect of losing their farms broke into armed open revolt
against the state, in what came to be known as Shays’ Rebellion. The conclusion many reached was that
the Articles of Confederation were simply not strong enough to keep the young republic together. In the
spring of 1787, a convention was called, and delegates from all the states (except Rhode Island, which
boycotted the convention) were sent to Philadelphia to hammer out a solution to this central problem.
The meeting these delegates convened became known as the Constitutional Convention of 1787. Although
its prescribed purpose was to revise the Articles of Confederation, a number of delegates charted a path
toward disposing of the Articles entirely. Under the Articles, the national legislature had been made up
of a single chamber composed of an equal number of delegates from each of the states. Large states,
like Virginia, felt it would be unfair to continue with this style of legislative institution. As a result,
Virginia’s delegates proposed a plan that called for bicameralism, or the division of legislators into two
separate assemblies. In this proposed two-chamber Congress, states with larger populations would have
more representatives in each chamber. Predictably, smaller states like New Jersey were unhappy with this
proposal. In response, they issued their own plan, which called for a single-chamber Congress with equal
representation and more state authority (Figure 11.2).

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Chapter 11 | Congress 405

Figure 11.2 The Virginia or “large state” plan called for a two-chamber legislature, with representation by population
in each chamber. The plan proposed by smaller states like New Jersey favored maintaining a one-house Congress in
which all states were equally represented.

The storm of debate over how to allocate power between large and small states was eventually calmed by
a third proposal. The Connecticut Compromise, also called the Great Compromise, proposed a bicameral
congress with members apportioned differently in each house. The upper house, the Senate, was to have
two members from each state. This soothed the fears of the small states. In the lower house, the House
of Representatives, membership would be proportional to the population in each state. This measure
protected the interests of the large states.
In the final draft of the U.S. Constitution, the bicameral Congress established by the convention of 1787
was given a number of powers and limitations. These are outlined in Article I (Appendix B). This article
describes the minimum age of congresspersons (Section 2), requires that Congress meet at least once
a year (Section 4), guarantees members’ pay (Section 6), and gives Congress the power to levy taxes,
borrow money, and regulate commerce (Section 8). These powers and limitations were the Constitutional
Convention’s response to the failings of the Articles of Confederation.
Although the basic design of the House and Senate resulted from a political deal between large and small
states, the bicameral legislature established by the convention did not emerge from thin air. The concept
had existed in Europe as far back as the medieval era. At that time, the two chambers of a legislature were
divided based on class and designed to reflect different types of representation. The names of the two
houses in the United Kingdom’s bicameral parliament still reflect this older distinction today: the House of
Lords and the House of Commons. Likewise, those at the Constitutional Convention purposely structured
the U.S. Senate differently from the House of Representatives in the hopes of encouraging different
representative memberships in the two houses. Initially, for example, the power to elect senators was given
to the state legislatures instead of to the voting public as it is now. The minimum age requirement is also
lower for the House of Representatives: A person must be at least twenty-five years old to serve in the
House, whereas one must be at least thirty to be a senator.
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The bicameral system established at the Constitutional Convention and still followed today requires the
two houses to pass identical bills, or proposed items of legislation. This ensures that after all amending
and modifying has occurred, the two houses ultimately reach an agreement about the legislation they
send to the president. Passing the same bill in both houses is no easy feat, and this is by design. The
framers intended there to be a complex and difficult process for legislation to become law. This challenge
serves a number of important and related functions. First, the difficulty of passing legislation through both
houses makes it less likely, though hardly impossible, that the Congress will act on fleeting instincts or
without the necessary deliberation. Second, the bicameral system ensures that large-scale dramatic reform
is exceptionally difficult to pass and that the status quo is more likely to win the day. This maintains a
level of conservatism in government, something the landed elite at the convention preferred. Third, the
bicameral system makes it difficult for a single faction or interest group to enact laws and restrictions that
would unfairly favor it.

Link to Learning

The website of the U.S. Congress Visitor Center (https://openstaxcollege.org/l/

29VisitCong) contains a number of interesting online exhibits and informational
tidbits about the U.S. government’s “first branch” (so called because it is described in
Article I of the Constitution).

SENATE REPRESENTATION AND HOUSE APPORTIONMENT

The Constitution specifies that every state will have two senators who each serve a six-year term.
Therefore, with fifty states in the Union, there are currently one hundred seats in the U.S. Senate. Senators
were originally appointed by state legislatures, but in 1913, the Seventeenth Amendment was approved,
which allowed for senators to be elected by popular vote in each state. Seats in the House of
Representatives are distributed among the states based on each state’s population and each member of the
House is elected by voters in a specific congressional district. Each state is guaranteed at least one seat in
the House (Table 11.1).

The 114th Congress

House of Representatives Senate
Total Number of Members 435 100

Number of Members per State 1 or more, based on population 2

Length of Term of Office 2 years 6 years

Minimum Age Requirement 25 30

Table 11.1

Congressional apportionment today is achieved through the equal proportions method, which uses a
mathematical formula to allocate seats based on U.S. Census Bureau population data, gathered every ten
years as required by the Constitution. At the close of the first U.S. Congress in 1791, there were sixty-
five representatives, each representing approximately thirty thousand citizens. Then, as the territory of the
United States expanded, sometimes by leaps and bounds, the population requirement for each new district
increased as well. Adjustments were made, but the roster of the House of Representatives continued to
grow until it reached 435 members after the 1910 census. Ten years later, following the 1920 census and

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Chapter 11 | Congress 407

with urbanization changing populations across the country, Congress failed to reapportion membership
because it became deadlocked on the issue. In 1929, an agreement was reached to permanently cap the
number of seats in the House at 435.
Redistricting occurs every ten years, after the U.S. Census has established how many persons live in the
United States and where. The boundaries of legislative districts are redrawn as needed to maintain similar
numbers of voters in each while still maintaining a total number of 435 districts. Because local areas can see
their population grow as well as decline over time, these adjustments in district boundaries are typically
needed after ten years have passed. Currently, there are seven states with only one representative (Alaska,
Delaware, Montana, North Dakota, South Dakota, Vermont, and Wyoming), whereas the most populous
state, California, has a total of fifty-three congressional districts (Figure 11.3).

Figure 11.3 Although the total number of seats in the House of Representatives has been capped at 435, the
apportionment of seats by state may change each decade following the official census. In this map, we see the
changes in seat reapportionment that followed the 2010 Census.

Two remaining problems in the House are the size of each representative’s constituency—the body of
voters who elect him or her—and the challenge of Washington, DC. First, the average number of citizens
in a congressional district now tops 700,000. This is arguably too many for House members to remain
very close to the people. George Washington advocated for thirty thousand per elected member to retain
effective representation in the House. The second problem is that the approximately 675,000 residents of
the federal district of Washington (District of Columbia) do not have voting representation. Like those
living in the U.S. territories, they merely have a non-voting delegate.1
The stalemate in the 1920s wasn’t the first time reapportionment in the House resulted in controversy (or
the last). The first incident took place before any apportionment had even occurred, while the process was
408 Chapter 11 | Congress

being discussed at the Constitutional Convention. Representatives from large slave-owning states believed
their slaves should be counted as part of the total population. States with few or no slaves predictably
argued against this. The compromise eventually reached allowed for each slave (who could not vote)
to count as three-fifths of a person for purposes of congressional representation. Following the abolition
of slavery and the end of Reconstruction, the former slave states in the South took a number of steps
to prevent former slaves and their children from voting. Yet because these former slaves were now free
persons, they were counted fully toward the states’ congressional representation.
Attempts at African American disenfranchisement continued until the civil rights struggle of the 1960s
finally brought about the Voting Rights Act of 1965. The act cleared several final hurdles to voter
registration and voting for African Americans. Following its adoption, many Democrats led the charge to
create congressional districts that would enhance the power of African American voters. The idea was to
create majority-minority districts within states, districts in which African Americans became the majority
and thus gained the electoral power to send representatives to Congress.
While the strangely drawn districts succeeded in their stated goals, nearly quintupling the number of
African American representatives in Congress in just over two decades, they have frustrated others who
claim they are merely a new form of an old practice, gerrymandering. Gerrymandering is the manipulation
of legislative district boundaries as a way of favoring a particular candidate. The term combines the
word salamander, a reference to the strange shape of these districts, with the name of Massachusetts
governor Elbridge Gerry, who in 1812, signed a redistricting plan designed to benefit his party. Despite
the questionable ethics behind gerrymandering, the practice is legal, and both major parties have used it
to their benefit. It is only when political redistricting appears to dilute the votes of racial minorities that
gerrymandering efforts can be challenged under the Voting Rights Act. Other forms of gerrymandering
are frequently employed in states where a dominant party seeks to maintain that domination. As we saw
in the chapter on political parties, gerrymandering can be a tactic to draw district lines in a way that creates
“safe seats” for a particular political party. In states like Maryland, these are safe seats for Democrats. In
states like Louisiana, they are safe seats for Republicans (Figure 11.4).

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Chapter 11 | Congress 409

Figure 11.4 These maps show examples of gerrymandering in Texas, where the Republican-controlled legislature
has redrawn House districts to reduce the number of Democratic seats by combining voters in Austin with those in
surrounding counties, sometimes even several hundred miles away. Today, Austin is represented by six different
congressional representatives.
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Finding a Middle Ground

Racial Gerrymandering and the Paradox of Minority Representation

In Ohio, one skirts the shoreline of Lake Erie like a snake. In Louisiana, one meanders across the southern
part of the state from the eastern shore of Lake Ponchartrain, through much of New Orleans and north along
the Mississippi River to Baton Rouge. And in Illinois, another wraps around the city of Chicago and its suburbs
in a wandering line that, when seen on a map, looks like the mouth of a large, bearded alligator attempting to
drink from Lake Michigan.
These aren’t geographical features or large infrastructure projects. Rather, they are racially gerrymandered
congressional districts. Their strange shapes are the product of careful district restructuring organized around
the goal of enhancing the votes of minority groups. The alligator-mouth District 4 in Illinois, for example,
was drawn to bring a number of geographically autonomous Latino groups in Illinois together in the same
congressional district.
While the strategy of creating majority-minority districts has been a success for minorities’ representation in
Congress, its long-term effect has revealed a disturbing paradox: Congress as a whole has become less
enthusiastic about minority-specific issues. How is this possible? The problem is that by creating districts
with high percentages of minority constituents, strategists have made the other districts less diverse. The
representatives in those districts are under very little pressure to consider the interests of minority groups. As
a result, they typically do not.2
What changes might help correct this problem? Are majority-minority districts no longer an effective strategy
for increasing minority representation in Congress? Are there better ways to achieve a higher level of minority
representation?

CONGRESSIONAL POWERS
The authority to introduce and pass legislation is a very strong power. But it is only one of the many
that Congress possesses. In general, congressional powers can be divided into three types: enumerated,
implied, and inherent. An enumerated power is a power explicitly stated in the Constitution. An implied
power is one not specifically detailed in the Constitution but inferred as necessary to achieve the objectives
of the national government. And an inherent power, while not enumerated or implied, must be assumed
to exist as a direct result of the country’s existence. In this section, we will learn about each type of
power and the foundations of legitimacy they claim. We will also learn about the way the different
branches of government have historically appropriated powers not previously granted to them and the
way congressional power has recently suffered in this process.
Article I, Section 8, of the U.S. Constitution details the enumerated powers of the legislature. These include
the power to levy and collect taxes, declare war, raise an army and navy, coin money, borrow money,
regulate commerce among the states and with foreign nations, establish federal courts and bankruptcy
rules, establish rules for immigration and naturalization, and issue patents and copyrights. Other powers,
such as the ability of Congress to override a presidential veto with a two-thirds vote of both houses, are
found elsewhere in the Constitution (Article II, Section 7, in the case of the veto override). The first of
these enumerated powers, to levy taxes, is quite possibly the most important power Congress possesses.
Without it, most of the others, whether enumerated, implied, or inherent, would be largely theoretical. The
power to levy and collect taxes, along with the appropriations power, gives Congress what is typically
referred to as “the power of the purse” (Figure 11.5). This means Congress controls the money.

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Chapter 11 | Congress 411

Figure 11.5 The ability to levy and collect taxes is the first, and most important, of Congress’s enumerated powers.
In 2015, U.S. federal tax revenue totaled $3.25 trillion.

Some enumerated powers invested in the Congress were included specifically to serve as checks on the
other powerful branches of government. These include Congress’s sole power to introduce legislation,
the Senate’s final say on many presidential nominations and treaties signed by the president, and the
House’s ability to impeach or formally accuse the president or other federal officials of wrongdoing (the
first step in removing the person from office; the second step, trial and removal, takes place in the U.S.
Senate). Each of these powers also grants Congress oversight of the actions of the president and his or her
administration—that is, the right to review and monitor other bodies such as the executive branch. The
fact that Congress has the sole power to introduce legislation effectively limits the power of the president
to develop the same laws he or she is empowered to enforce. The Senate’s exclusive power to give final
approval for many of the president’s nominees, including cabinet members and judicial appointments,
compels the president to consider the needs and desires of Congress when selecting top government
officials. Finally, removing a president from office who has been elected by the entire country should never
be done lightly. Giving this responsibility to a large deliberative body of elected officials ensures it will
occur only very rarely.
Despite the fact that the Constitution outlines specific enumerated powers, most of the actions Congress
takes on a day-to-day basis are not actually included in this list. The reason is that the Constitution not
only gives Congress the power to make laws but also gives it some general direction as to what those laws
should accomplish. The “necessary and proper cause” directs Congress “to make all Laws which shall
be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested
by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
Laws that regulate banks, establish a minimum wage, and allow for the construction and maintenance of
interstate highways are all possible because of the implied powers granted by the necessary and proper
clause. Today, the overwhelming portion of Congress’s work is tied to the necessary and proper clause.
Finally, Congress’s inherent powers are unlike either the enumerated or the implied powers. Inherent
powers are not only not mentioned in the Constitution, but they do not even have a convenient clause in
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the Constitution to provide for them. Instead, they are powers Congress has determined it must assume
if the government is going to work at all. The general assumption is that these powers were deemed so
essential to any functioning government that the framers saw no need to spell them out. Such powers
include the power to control borders of the state, the power to expand the territory of the state, and the
power to defend itself from internal revolution or coups. These powers are not granted to the Congress, or
to any other branch of the government for that matter, but they exist because the country exists.

Finding a Middle Ground

Understanding the Limits of Congress’s Power to Regulate

One of the most important constitutional anchors for Congress’s implicit power to regulate all manner of
activities within the states is the short clause in Article I, Section 8, which says Congress is empowered to “to
regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes.” The Supreme
Court’s broad interpretation of this so-called commerce clause has greatly expanded the power and reach of
Congress over the centuries.
From the earliest days of the republic until the end of the nineteenth century, the Supreme Court consistently
handed down decisions that effectively broadened the Congress’s power to regulate interstate and intrastate
commerce.3 The growing country, the demands of its expanding economy, and the way changes in technology
and transportation contributed to the shrinking of space between the states demanded that Congress be able
to function as a regulator. For a short period in the 1930s when federal authority was expanded to combat the
Great Depression, the Court began to interpret the commerce clause far more narrowly. But after this interlude,
the court’s interpretation swung in an even-broader direction. This change proved particularly important in the
1960s, when Congress rolled back racial segregation throughout much of the South and beyond, and in the
1970s, as federal environmental regulations and programs took root.
But in United States v. Lopez, a decision issued in 1995, the Court changed course again and, for the first time
in half a century, struck down a law as an unconstitutional overstepping of the commerce clause.4 Five years
later, the Court did it again, convincing many that the country may be witnessing the beginning of a rollback in
Congress’s power to regulate in the states. When the Patient Protection and Affordable Care Act (also known
as the ACA, or Obamacare) came before the Supreme Court in 2012, many believed the Court would strike it
down. Instead, the justices took the novel approach of upholding the law based on the Congress’s enumerated
power to tax, rather than the commerce clause. The decision was a shock to many.5 And, by not upholding the
law on the basis of the commerce clause, the Court left open the possibility that it would continue to pursue a
narrower interpretation of the clause.
What are the advantages of the Supreme Court’s broad interpretation of the commerce clause? How do you
think this interpretation affects the balance of power between the branches of government? Why are some
people concerned that the Court’s view of the clause could change?

In the early days of the republic, Congress’s role was rarely if ever disputed. However, with its decision
in Marbury v. Madison (1803), the Supreme Court asserted its authority over judicial review and assumed
the power to declare laws unconstitutional.6 Yet, even after that decision, the Court was reluctant to use
this power and didn’t do so for over half a century. Initially, the presidency was also a fairly weak branch
of government compared with the legislature. But presidents have sought to increase their power almost
from the beginning, typically at the expense of the Congress. By the nature of the enumerated powers
provided to the president, it is during wartime that the chief executive is most powerful and Congress
least powerful. For example, President Abraham Lincoln, who oversaw the prosecution of the Civil War,
stretched the bounds of his legal authority in a number of ways, such as by issuing the Emancipation
Proclamation that freed slaves in the confederate states.7
In the twentieth century, the modern tussle over power between the Congress and the president really
began. There are two primary reasons this struggle emerged. First, as the country grew larger and

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Chapter 11 | Congress 413

more complex, the need for the government to assert its regulatory power grew. The executive branch,
because of its hierarchical organization with the president at the top, is naturally seen as a more smoothly
run governmental machine than the cumbersome Congress. This gives the president advantages in the
struggle for power and indeed gives Congress an incentive to delegate authority to the president on
processes, such as trade agreements and national monument designations, that would be difficult for the
legislature to carry out. The second reason has to do with the president’s powers as commander-in-chief
in the realm of foreign policy.
The twin disasters of the Great Depression in the 1930s and World War II, which lasted until the mid-1940s,
provided President Franklin D. Roosevelt with a powerful platform from which to expand presidential
power. His popularity and his ability to be elected four times allowed him to greatly overshadow
Congress. As a result, Congress attempted to restrain the power of the presidency by proposing the
Twenty-Second Amendment to the Constitution, which limited a president to only two full terms in
office.8 Although this limitation is a significant one, it has not held back the tendency for the presidency to
assume increased power.
In the decades following World War II, the United States entered the Cold War, a seemingly endless
conflict with the Soviet Union without actual war, and therefore a period that allowed the presidency to
assert more authority, especially in foreign affairs. In an exercise of this increased power, in the 1950s,
President Harry Truman effectively went around an enumerated power of Congress by sending troops
into battle in Korea without a congressional declaration of war (Figure 11.6). By the time of the Kennedy
administration in the 1960s, the presidency had assumed nearly all responsibility for creating foreign
policy, effectively shutting Congress out.
Following the twin scandals of Vietnam and Watergate in the early 1970s, Congress attempted to assert
itself as a coequal branch, even in creating foreign policy, but could not hold back the trend. The War
Powers Resolution (covered in the foreign policy chapter) was intended to strengthen congressional war
powers but ended up clarifying presidential authority in the first sixty days of a military conflict. The war
on terrorism after 9/11 has also strengthened the president’s hand. Today, the seemingly endless bickering
between the president and the Congress is a reminder of the ongoing struggle for power between the
branches, and indeed between the parties, in Washington, DC.

Figure 11.6 President Truman did not think it necessary to go through Congress to prosecute the war in Korea. This
action opened the door to an extended era in which Congress has been effectively removed from decisions about
whether to go to war, an era that continues today.
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11.2 Congressional Elections

Learning Objectives
By the end of this section, you will be able to:
• Explain how fundamental characteristics of the House and Senate shape their elections
• Discuss campaign funding and the effects of incumbency in the House and Senate
• Analyze the way congressional elections can sometimes become nationalized

The House and Senate operate very differently, partly because their members differ in the length of their
terms, as well as in their age and other characteristics. In this section, we will explore why constitutional
rules affect the elections for the two types of representatives and the reason the two bodies function
differently by design. We also look at campaign finance to better understand how legislators get elected
and stay elected.

UNDERSTANDING THE HOUSE AND SENATE

The U.S. Constitution is very clear about who can be elected as a member of the House or Senate. A
House member must be a U.S. citizen of at least seven years’ standing and at least twenty-five years old.
Senators are required to have nine years’ standing as citizens and be at least thirty years old when sworn
in. Representatives serve two-year terms, whereas senators serve six-year terms. Per the Supreme Court
decision in U.S. Term Limits v. Thornton (1995), there are currently no term limits for either senators or
representatives, despite efforts by many states to impose them in the mid-1990s.9 House members are
elected by the voters in their specific congressional districts. There are currently 435 congressional districts
in the United States and thus 435 House members, and each state has a number of House districts roughly
proportional to its share of the total U.S. population, with states guaranteed at least one House member.
Two senators are elected by each state.
The structural and other differences between the House and Senate have practical consequences for
the way the two chambers function. The House of Representatives has developed a stronger and more
structured leadership than the Senate. Because its members serve short, two-year terms, they must
regularly answer to the demands of their constituency when they run for election or reelection. Even
House members of the same party in the same state will occasionally disagree on issues because of the
different interests of their specific districts. Thus, the House can be highly partisan at times.
In contrast, members of the Senate are furthest from the demands and scrutiny of their constituents.
Because of their longer six-year terms, they will see every member of the House face his or her constituents
multiple times before they themselves are forced to seek reelection. Originally, when a state’s two U.S.
senators were appointed by the state legislature, the Senate chamber’s distance from the electorate was
even greater. Also, unlike members of the House who can seek the narrower interests of their district,
senators must maintain a broader appeal in order to earn a majority of the votes across their entire state.
In addition, the rules of the Senate allow individual members to slow down or stop legislation they
dislike. These structural differences between the two chambers create real differences in the actions of
their members. The heat of popular, sometimes fleeting, demands from constituents often glows red hot
in the House. The Senate has the flexibility to allow these passions to cool. Dozens of major initiatives
were passed by the House and had a willing president, for example, only to be defeated in the Senate. In
2012, the Buffett Rule would have implemented a minimum tax rate of 30 percent on wealthy Americans.
Sixty senators had to agree to bring it to a vote, but the bill fell short of that number and died.10 Similarly,
although the ACA became widely known as “Obamacare,” the president did not send a piece of legislation
to Capitol Hill; he asked Congress to write the bills. Both the House and Senate authored their own
versions of the legislation. The House’s version was much bolder and larger in terms of establishing a
national health care system. However, it did not stand a chance in the Senate, where a more moderate

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Chapter 11 | Congress 415

version of the legislation was introduced. In the end, House leaders saw the Senate version as preferable
to doing nothing and ultimately supported it.

CONGRESSIONAL CAMPAIGN FUNDING

Modern political campaigns in the United States are expensive, and they have been growing more so.
For example, in 1986, the costs of running a successful House and Senate campaign were $776,687 and
$6,625,932, respectively, in 2014 dollars. By 2014, those values had shot to $1,466,533 and $9,655,660 (Figure
11.7).11 Raising this amount of money takes quite a bit of time and effort. Indeed, a presentation for
incoming Democratic representatives suggested a daily Washington schedule of five hours reaching out
to donors, while only three or four were to be used for actual congressional work. As this advice reveals,
raising money for reelection constitutes a large proportion of the work a congressperson does. This has
caused many to wonder whether the amount of money in politics has truly become a corrupting influence.
However, overall, the lion’s share of direct campaign contributions in congressional elections comes from
individual donors, who are less influential than the political action committees (PACs) that contribute the
remainder.12

Figure 11.7 The most expensive House race in 2014 was that of Speaker of the House John Boehner (right), a
Republican from Ohio, who spent over $17 million to hold his seat. He later resigned in 2015 and was replaced as
Speaker by Paul Ryan (left) of Wisconsin’s 1st District.13

Nevertheless, the complex problem of funding campaigns has a long history in the United States. For
nearly the first hundred years of the republic, there were no federal campaign finance laws. Then, between
the late nineteenth century and the start of World War I, Congress pushed through a flurry of reforms
intended to bring order to the world of campaign finance. These laws made it illegal for politicians to solicit
contributions from civil service workers, made corporate contributions illegal, and required candidates
to report their fundraising. As politicians and donors soon discovered, however, these laws were full of
loopholes and were easily skirted by those who knew the ins and outs of the system.
Another handful of reform attempts were therefore pushed through in the wake of World War II, but
then Congress neglected campaign finance reform for a few decades. That lull ended in the early 1970s
when the Federal Election Campaign Act was passed. Among other things, it created the Federal Election
Commission (FEC), required candidates to disclose where their money was coming from and where
they were spending it, limited individual contributions, and provided for public financing of presidential
campaigns.
Another important reform occurred in 2002, when Senators John McCain (R-AZ) and Russell Feingold
(D-WI) drafted, and Congress passed, the Bipartisan Campaign Reform Act (BCRA), also referred to as
the McCain-Feingold Act. The purpose of this law was to limit the use of “soft money,” which is raised
for purposes like party-building efforts, get-out-the-vote efforts, and issue-advocacy ads. Unlike “hard
416 Chapter 11 | Congress

money” contributed directly to a candidate, which is heavily regulated and limited, soft money had almost
no regulations or limits. It had never been a problem before the mid-1990s, when a number of very
imaginative political operatives developed a great many ways to spend this money. After that, soft-money
donations skyrocketed. But the McCain-Feingold bill greatly limited this type of fundraising.
McCain-Feingold placed limits on total contributions to political parties, prohibited coordination between
candidates and PAC campaigns, and required candidates to include personal endorsements on their
political ads. Until 2010, it also limited advertisements run by unions and corporations thirty days before
a primary and sixty days before a general election.14 The FEC’s enforcement of the law spurred numerous
court cases challenging it. The most controversial decision was handed down by the Supreme Court in
2010, whose ruling on Citizens United v. Federal Election Commission led to the removal of spending limits on
corporations. Justices in the majority argued that the BCRA violated a corporation’s free-speech rights.15
The Citizens United case began as a lawsuit against the FEC filed by Citizens United, a nonprofit
organization that wanted to advertise a documentary critical of former senator and Democratic hopeful
Hillary Clinton on the eve of the 2008 Democratic primaries. Advertising or showing the film during this
time window was prohibited by the McCain-Feingold Act. But the Court found that this type of restriction
violated the organization’s First Amendment right to free speech. As critics of the decision predicted at the
time, the Court thus opened the floodgates to private soft money flowing into campaigns again.
In the wake of the Citizens United decision, a new type of advocacy group emerged, the super PAC.
A traditional PAC is an organization designed to raise hard money to elect or defeat candidates. Such
PACs tended to be run by businesses and other groups, like the Teamsters Union and the National Rifle
Association, to support their special interests. They are highly regulated in regard to the amount of money
they can take in and spend, but super PACs aren’t bound by these regulations. While they cannot give
money directly to a candidate or a candidate’s party, they can raise and spend unlimited funds, and they
can spend independently of a campaign or party. In the 2012 election cycle, for example, super PACs spent
just over $600 million dollars and raised about $200 million more.16
At the same time, several limits on campaign contributions have been upheld by the courts and remain
in place. Individuals may contribute up to $2700 per candidate per election. Individuals may also give
$5000 to PACs and $33,400 to a national party committee. PACs that contribute to more than one candidate
are permitted to contribute $5000 per candidate per election, and up to $15,000 to a national party. PACs
created to give money to only one candidate are limited to only $2700 per candidate, however (Figure
11.8).17 The amounts are adjusted every two years, based on inflation. These limits are intended to create
a more equal playing field for the candidates, so that candidates must raise their campaign funds from a
broad pool of contributors.

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Chapter 11 | Congress 417

Figure 11.8 The Federal Election Commission has strict federal election guidelines on who can contribute, to whom,
and how much.

Link to Learning

The Center for Responsive Politics (https://openstaxcollege.org/l/29OpnSecrt)

reports donation amounts that are required by law to be disclosed to the Federal
Elections Commission. One finding is that, counter to conventional wisdom, the vast
majority of direct campaign contributions come from individual donors, not from
PACs and political parties.

INCUMBENCY EFFECTS
Not surprisingly, the jungle of campaign financing regulations and loopholes is more easily navigated
by incumbents in Congress than by newcomers. Incumbents are elected officials who currently hold an
office. The amount of money they raise against their challengers demonstrates their advantage. In 2014,
418 Chapter 11 | Congress

for example, the average Senate incumbent raised $12,144,933, whereas the average challenger raised only
$1,223,566.18 This is one of the many reasons incumbents win a large majority of congressional races each
electoral cycle. Incumbents attract more money because people want to give to a winner. In the House,
the percentage of incumbents winning reelection has hovered between 85 and 100 percent for the last half
century. In the Senate, there is only slightly more variation, given the statewide nature of the race, but it is
still a very high majority of incumbents who win reelection (Figure 11.9). As these rates show, even in the
worst political environments, incumbents are very difficult to defeat.

Figure 11.9 Historically, incumbents in both the House and the Senate enjoy high rates of reelection.

The historical difficulty of unseating an incumbent in the House or Senate is often referred to as the
incumbent advantage or the incumbency effect. The advantage in financing is a huge part of this effect, but it
is not the only important part. Incumbents often have a much higher level of name recognition. All things
being equal, voters are far more likely to select the name of the person they recall seeing on television and
hearing on the radio for the last few years than the name of a person they hardly know. And donors are
more likely to want to give to a proven winner.
But more important is the way the party system itself privileges incumbents. A large percentage of
congressional districts across the country are “safe seats” in uncompetitive districts, meaning candidates
from a particular party are highly likely to consistently win the seat. This means the functional decision
in these elections occurs during the primary, not in the general election. Political parties in general
prefer to support incumbents in elections, because the general consensus is that incumbents are better
candidates, and their record of success lends support to this conclusion. That said, while the political
parties themselves to a degree control and regulate the primaries, popular individual candidates and
challengers sometimes rule the day. This has especially been the case in recent years as conservative
incumbents have been “primaried” by challengers more conservative than they.

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Chapter 11 | Congress 419

Insider Perspective

The End of Incumbency Advantage?

At the start of 2014, House majority whip Eric Cantor, a representative from Virginia, was at the top of his game.
He was handsome, popular with talk show hosts and powerful insiders, an impressive campaign fundraiser and
speaker, and apparently destined to become Speaker of the House when the current speaker stepped down.
Four months later, Cantor lost the opportunity to run for his own congressional seat in a shocking primary
election upset that shook the Washington political establishment to its core.
What happened? How did such a powerful incumbent lose a game in which the cards had been stacked
so heavily in his favor? Analyses of the stunning defeat quickly showed there were more chinks in Cantor’s
polished armor than most wanted to admit. But his weakness wasn’t that he was unable to play the political
game. Rather, he may have learned to play it too well. He became seen as too much of a Washington insider.
Cantor’s ambition, political skill, deep connections to political insiders, and ability to come out squeaky clean
after even the dirtiest political tussling should have given him a clear advantage over any competitor. But in
the political environment of 2014, when conservative voices around the country criticized the party for ignoring
the people and catering to political insiders, his strengths became weaknesses. Indeed, Cantor was the only
highest-level Republican representative sacrificed to conservative populism.
Were the winds of change blowing for incumbents? Between 1946 and 2012, only 5 percent of incumbent
senators and 2 percent of House incumbents lost their party primaries.19 In 2014, Cantor was one of four
House incumbents who did so, while no incumbent senators suffered defeat. All evidence suggests the
incumbent advantage, especially in the primary system, is alive and well. The story of Eric Cantor may very
well be the classic case of an exception proving the rule.
If you are a challenger running against an incumbent, what are some strategies you could use to make the
race competitive? Would Congress operate differently if challengers defeated incumbents more often?

Another reason incumbents wield a great advantage over their challengers is the state power they have
at their disposal.20 One of the many responsibilities of a sitting congressperson is constituent casework.
Constituents routinely reach out to their congressperson for powerful support to solve complex problems,
such as applying for and tracking federal benefits or resolving immigration and citizenship challenges.21
Incumbent members of Congress have paid staff, influence, and access to specialized information that can
help their constituents in ways other persons cannot. And congresspersons are hardly reticent about their
efforts to support their constituents. Often, they will publicize their casework on their websites or, in some
cases, create television advertisements that boast of their helpfulness. Election history has demonstrated
that this form of publicity is very effective in garnering the support of voters.

LOCAL AND NATIONAL ELECTIONS

The importance of airing positive constituent casework during campaigns is a testament to the accuracy
of saying, “All politics is local.” This phrase, attributed to former Speaker of the House Tip O’Neill (D-
MA), essentially means that the most important motivations directing voters are rooted in local concerns.
In general, this is true. People naturally feel more driven by the things that affect them on a daily basis.
These are concerns like the quality of the roads, the availability of good jobs, and the cost and quality of
public education. Good senators and representatives understand this and will seek to use their influence
and power in office to affect these issues for the better. This is an age-old strategy for success in office and
elections.
Political scientists have taken note of some voting patterns that appear to challenge this common
assumption, however. In 1960, political scientist Angus Campbell proposed the surge-and-decline theory
to explain these patterns.22 Campbell noticed that since the Civil War, with the exception of 1934, the
president’s party has consistently lost seats in Congress during the midterm elections. He proposed that
420 Chapter 11 | Congress

the reason was a surge in political stimulation during presidential elections, which contributes to greater
turnout and brings in voters who are ordinarily less interested in politics. These voters, Campbell argued,
tend to favor the party holding the presidency. In contrast, midterm elections witness the opposite effect.
They are less stimulating and have lower turnout because less-interested voters stay home. This shift, in
Campbell’s theory, provides an advantage to the party not currently occupying the presidency.
In the decades since Campbell’s influential theory was published, a number of studies have challenged
his conclusions. Nevertheless, the pattern of midterm elections benefiting the president’s opposition has
persisted.23 Only in exceptional years has this pattern been broken: first in 1998 during President Bill
Clinton’s second term and the Monica Lewinsky scandal, when exit polls indicated most voters opposed
the idea of impeaching the president, and then again in 2002, following the 9/11 terrorist attacks and the
ensuing declaration of a “war on terror.”
The evidence does suggest that national concerns, rather than local ones, can function as powerful
motivators at the polls. Consider, for example, the role of the Iraq War in bringing about a Democratic
rout of the Republicans in the House in 2006 and in the Senate in 2008. Unlike previous wars in Europe
and Vietnam, the war in Iraq was fought by a very small percentage of the population.24 The vast majority
of citizens were not soldiers, few had relatives fighting in the war, and most did not know anyone who
directly suffered from the prolonged conflict. Voters in large numbers were motivated by the political and
economic disaster of the war to vote for politicians they believed would end it (Figure 11.10).

Figure 11.10 Wars typically have the power to nationalize local elections. What makes the Iraq War different is that
the overwhelming majority of voters had little to no intimate connection with the conflict and were motivated to vote for
those who would end it. (credit: "Lipton sale"/Wikimedia Commons)

Congressional elections may be increasingly driven by national issues. Just two decades ago, straight-
ticket, party-line voting was still relatively rare across most of the country.25 In much of the South, which
began to vote overwhelmingly Republican in presidential elections during the 1960s and 1970s, Democrats
were still commonly elected to the House and Senate. The candidates themselves and the important local
issues, apart from party affiliation, were important drivers in congressional elections. This began to change
in the 1980s and 1990s, as Democratic representatives across the region began to dwindle. And the South
isn’t alone; areas in the Northeast and the Northwest have grown increasingly Democratic. Indeed, the
2014 midterm election was the most nationalized election in many decades. Voters who favor a particular
party in a presidential election are now much more likely to also support that same party in House and
Senate elections than was the case just a few decades ago.

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Chapter 11 | Congress 421

11.3 Congressional Representation

Learning Objectives
By the end of this section, you will be able to:
• Explain the basics of representation
• Describe the extent to which Congress as a body represents the U.S. population
• Explain the concept of collective representation
• Describe the forces that influence congressional approval ratings

The tension between local and national politics described in the previous section is essentially a struggle
between interpretations of representation. Representation is a complex concept. It can mean paying careful
attention to the concerns of constituents, understanding that representatives must act as they see fit based
on what they feel best for the constituency, or relying on the particular ethnic, racial, or gender diversity
of those in office. In this section, we will explore three different models of representation and the concept
of descriptive representation. We will look at the way members of Congress navigate the challenging
terrain of representation as they serve, and all the many predictable and unpredictable consequences of
the decisions they make.

TYPES OF REPRESENTATION: LOOKING OUT FOR CONSTITUENTS

By definition and title, senators and House members are representatives. This means they are intended
to be drawn from local populations around the country so they can speak for and make decisions for
those local populations, their constituents, while serving in their respective legislative houses. That is,
representation refers to an elected leader’s looking out for his or her constituents while carrying out the
duties of the office.26
Theoretically, the process of constituents voting regularly and reaching out to their representatives helps
these congresspersons better represent them. It is considered a given by some in representative
democracies that representatives will seldom ignore the wishes of constituents, especially on salient issues
that directly affect the district or state. In reality, the job of representing in Congress is often quite
complicated, and elected leaders do not always know where their constituents stand. Nor do constituents
always agree on everything. Navigating their sometimes contradictory demands and balancing them
with the demands of the party, powerful interest groups, ideological concerns, the legislative body,
their own personal beliefs, and the country as a whole can be a complicated and frustrating process for
representatives.
Traditionally, representatives have seen their role as that of a delegate, a trustee, or someone attempting to
balance the two. A representative who sees him- or herself as a delegate believes he or she is empowered
merely to enact the wishes of constituents. Delegates must employ some means to identify the views
of their constituents and then vote accordingly. They are not permitted the liberty of employing their
own reason and judgment while acting as representatives in Congress. This is the delegate model of
representation.
In contrast, a representative who understands their role to be that of a trustee believes he or she is
entrusted by the constituents with the power to use good judgment to make decisions on the constituents’
behalf. In the words of the eighteenth-century British philosopher Edmund Burke, who championed the
trustee model of representation, “Parliament is not a congress of ambassadors from different and hostile
interests . . . [it is rather] a deliberative assembly of one nation, with one interest, that of the whole.”27 In the
modern setting, trustee representatives will look to party consensus, party leadership, powerful interests,
the member’s own personal views, and national trends to better identify the voting choices they should
make.
422 Chapter 11 | Congress

Understandably, few if any representatives adhere strictly to one model or the other. Instead, most find
themselves attempting to balance the important principles embedded in each. Political scientists call this
the politico model of representation. In it, members of Congress act as either trustee or delegate based on
rational political calculations about who is best served, the constituency or the nation.
For example, every representative, regardless of party or conservative versus liberal leanings, must remain
firm in support of some ideologies and resistant to others. On the political right, an issue that demands
support might be gun rights; on the left, it might be a woman’s right to an abortion. For votes related to
such issues, representatives will likely pursue a delegate approach. For other issues, especially complex
questions the public at large has little patience for, such as subtle economic reforms, representatives will
tend to follow a trustee approach. This is not to say their decisions on these issues run contrary to public
opinion. Rather, it merely means they are not acutely aware of or cannot adequately measure the extent
to which their constituents support or reject the proposals at hand. It could also mean that the issue is not
salient to their constituents. Congress works on hundreds of different issues each year, and constituents
are likely not aware of the particulars of most of them.

DESCRIPTIVE REPRESENTATION IN CONGRESS

In some cases, representation can seem to have very little to do with the substantive issues representatives
in Congress tend to debate. Instead, proper representation for some is rooted in the racial, ethnic,
socioeconomic, gender, and sexual identity of the representatives themselves. This form of representation
is called descriptive representation.
At one time, there was relatively little concern about descriptive representation in Congress. A major
reason is that until well into the twentieth century, white men of European background constituted
an overwhelming majority of the voting population. African Americans were routinely deprived of
the opportunity to participate in democracy, and Hispanics and other minority groups were fairly
insignificant in number and excluded by the states. While women in many western states could vote
sooner, all women were not able to exercise their right to vote nationwide until passage of the Nineteenth
Amendment in 1920, and they began to make up more than 5 percent of either chamber only in the 1990s.
Many advances in women’s rights have been the result of women’s greater engagement in politics and
representation in the halls of government, especially since the founding of the National Organization for
Women in 1966 and the National Women’s Political Caucus (NWPC) in 1971. The NWPC was formed by
Bella Abzug (Figure 11.11), Gloria Steinem, Shirley Chisholm, and other leading feminists to encourage
women’s participation in political parties, elect women to office, and raise money for their campaigns. For
example, Patsy Mink (D-HI) (Figure 11.11), the first Asian American woman elected to Congress, was
the coauthor of the Education Amendments Act of 1972, Title IX of which prohibits sex discrimination in
education. Mink had been interested in fighting discrimination in education since her youth, when she
opposed racial segregation in campus housing while a student at the University of Nebraska. She went to
law school after being denied admission to medical school because of her gender. Like Mink, many other
women sought and won political office, many with the help of the NWPC. Today, EMILY’s List, a PAC
founded in 1985 to help elect pro-choice Democratic women to office, plays a major role in fundraising
for female candidates. In the 2012 general election, 80 percent of the candidates endorsed by EMILY’s List
won a seat.28

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Chapter 11 | Congress 423

Figure 11.11 Patsy Mink (a), a Japanese American from Hawaii, was the first Asian American woman elected to the
House of Representatives. In her successful 1970 congressional campaign, Bella Abzug (b) declared, “This woman’s
place is in the House... the House of Representatives!”

In the wake of the Civil Rights Movement, African American representatives also began to enter Congress
in increasing numbers. In 1971, to better represent their interests, these representatives founded the
Congressional Black Caucus (CBC), an organization that grew out of a Democratic select committee
formed in 1969. Founding members of the CBC include John Conyers (D-MI), currently the longest-serving
member of the House of Representatives, Charles Rangel (D-NY), and Shirley Chisholm, a founder of
the NWPC and the first African American woman to be elected to the House of Representatives (Figure
11.12).

Figure 11.12 This photo shows the founding members of the Congressional Black Caucus, which at the time of its
founding in 1971 had only thirteen members. Currently, forty-six African Americans serve in Congress.

In recent decades, Congress has become much more descriptively representative of the United States.
The 114th Congress, which began in January 2015, had a historically large percentage of racial and ethnic
424 Chapter 11 | Congress

minorities. African Americans made up the largest percentage, with forty-eight members, while Latinos
accounted for thirty-two members, up from nineteen just over a decade before.29 Yet, demographically
speaking, Congress as a whole is still a long way from where the country is and remains largely white,
male, and wealthy. For example, although more than half the U.S. population is female, only 20 percent of
Congress is. Congress is also overwhelmingly Christian (Figure 11.13).

Figure 11.13 The diversity of the country is not reflected in the U.S. Congress, whose current membership is
approximately 80 percent male, 82 percent white, and 92 percent Christian.

REPRESENTING CONSTITUENTS
Ethnic, racial, gender, or ideological identity aside, it is a representative’s actions in Congress that
ultimately reflect his or her understanding of representation. Congress members’ most important function
as lawmakers is writing, supporting, and passing bills. And as representatives of their constituents, they
are charged with addressing those constituents’ interests. Historically, this job has included what some
have affectionately called “bringing home the bacon” but what many (usually those outside the district
in question) call pork-barrel politics. As a term and a practice, pork-barrel politics—federal spending
on projects designed to benefit a particular district or set of constituents—has been around since the
nineteenth century, when barrels of salt pork were both a sign of wealth and a system of reward. While
pork-barrel politics are often deplored during election campaigns, and earmarks—funds appropriated
for specific projects—are no longer permitted in Congress (see feature box below), legislative control of
local appropriations nevertheless still exists. In more formal language, allocation, or the influencing of the
national budget in ways that help the district or state, can mean securing funds for a specific district’s
project like an airport, or getting tax breaks for certain types of agriculture or manufacturing.

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Chapter 11 | Congress 425

Get Connected!

Language and Metaphor

The language and metaphors of war and violence are common in politics. Candidates routinely “smell blood
in the water,” “battle for delegates,” go “head-to-head,” “cripple” their opponent, and “make heads roll.” But
references to actual violence aren’t the only metaphorical devices commonly used in politics. Another is
mentions of food. Powerful speakers frequently “throw red meat to the crowds;” careful politicians prefer to
stick to “meat-and-potato issues;” and representatives are frequently encouraged by their constituents to “bring
home the bacon.” And the way members of Congress typically “bring home the bacon” is often described with
another agricultural metaphor, the “earmark.”
In ranching, an earmark is a small cut on the ear of a cow or other animal to denote ownership. Similarly, in
Congress, an earmark is a mark in a bill that directs some of the bill’s funds to be spent on specific projects or
for specific tax exemptions. Since the 1980s, the earmark has become a common vehicle for sending money
to various projects around the country. Many a road, hospital, and airport can trace its origins back to a few
skillfully drafted earmarks.
Relatively few people outside Congress had ever heard of the term before the 2008 presidential election, when
Republican nominee Senator John McCain touted his career-long refusal to use the earmark as a testament
to his commitment to reforming spending habits in Washington.30 McCain’s criticism of the earmark as a form
of corruption cast a shadow over a previously common legislative practice. As the country sank into recession
and Congress tried to use spending bills to stimulate the economy, the public grew more acutely aware of its
earmarking habits. Congresspersons then were eager to distance themselves from the practice. In fact, the
use of earmarks to encourage Republicans to help pass health care reform actually made the bill less popular
with the public.
In 2011, after Republicans took over the House, they outlawed earmarks. But with deadlocks and stalemates
becoming more common, some quiet voices have begun asking for a return to the practice. They argue
that Congress works because representatives can satisfy their responsibilities to their constituents by making
deals. The earmarks are those deals. By taking them away, Congress has hampered its own ability to “bring
home the bacon.”
Are earmarks a vital part of legislating or a corrupt practice that was rightly jettisoned? Pick a cause or industry,
and investigate whether any earmarks ever favored it, or research the way earmarks have hurt or helped your
state or district, and decide for yourself.
Follow-up activity: Find out where your congressional representative stands on the ban on earmarks and write
to support or dissuade him or her.

Such budgetary allocations aren’t always looked upon favorably by constituents. Consider, for example,
the passage of the ACA in 2010. The desire for comprehensive universal health care had been a driving
position of the Democrats since at least the 1960s. During the 2008 campaign, that desire was so great
among both Democrats and Republicans that both parties put forth plans. When the Democrats took
control of Congress and the presidency in 2009, they quickly began putting together their plan. Soon,
however, the politics grew complex, and the proposed plan became very contentious for the Republican
Party.
Nevertheless, the desire to make good on a decades-old political promise compelled Democrats to do
everything in their power to pass something. They offered sympathetic members of the Republican
Party valuable budgetary concessions; they attempted to include allocations they hoped the opposition
might feel compelled to support; and they drafted the bill in a purposely complex manner to avoid
future challenges. These efforts, however, had the opposite effect. The Republican Party’s constituency
interpreted the allocations as bribery and the bill as inherently flawed, and felt it should be scrapped
entirely. The more Democrats dug in, the more frustrated the Republicans became (Figure 11.14).
426 Chapter 11 | Congress

Figure 11.14 In 2009, the extended debates and legislative maneuvering in Congress over the proposed health care
reform bill triggered a firestorm of disapproval from the Republicans and protests from their supporters. In many
cases, hyperbole ruled the day. (credit: “dbking”/Flickr)

The Republican opposition, which took control of the House during the 2010 midterm elections, promised
constituents they would repeal the law. Their attempts were complicated, however, by the fact that
Democrats still held the Senate and the presidency. Yet, the desire to represent the interests of their
constituents compelled Republicans to use another tool at their disposal, the symbolic vote. During the
112th and 113th Congresses, Republicans voted more than sixty times to either repeal or severely limit the
reach of the law. They understood these efforts had little to no chance of ever making it to the president’s
desk. And if they did, he would certainly have vetoed them. But it was important for these representatives
to demonstrate to their constituents that they understood their wishes and were willing to act on them.
Historically, representatives have been able to balance their role as members of a national legislative body
with their role as representatives of a smaller community. The Obamacare fight, however, gave a boost
to the growing concern that the power structure in Washington divides representatives from the needs of
their constituency.31 This has exerted pressure on representatives to the extent that some now pursue a
more straightforward delegate approach to representation. Indeed, following the 2010 election, a handful
of Republicans began living in their offices in Washington, convinced that by not establishing a residence
in Washington, they would appear closer to their constituents at home.32

COLLECTIVE REPRESENTATION AND CONGRESSIONAL APPROVAL

The concept of collective representation describes the relationship between Congress and the United
States as a whole. That is, it considers whether the institution itself represents the American people, not
just whether a particular member of Congress represents his or her district. Predictably, it is far more
difficult for Congress to maintain a level of collective representation than it is for individual members
of Congress to represent their own constituents. Not only is Congress a mixture of different ideologies,
interests, and party affiliations, but the collective constituency of the United States has an even-greater
level of diversity. Nor is it a solution to attempt to match the diversity of opinions and interests in the
United States with those in Congress. Indeed, such an attempt would likely make it more difficult for
Congress to maintain collective representation. Its rules and procedures require Congress to use flexibility,

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Chapter 11 | Congress 427

bargaining, and concessions. Yet, it is this flexibility and these concessions, which many now interpret as
corruption, that tend to engender the high public disapproval ratings experienced by Congress.
After many years of deadlocks and bickering on Capitol Hill, the national perception of Congress is near
an all-time low. According to Gallup polls, Congress has a stunningly poor approval rating of about 16
percent. This is unusual even for a body that has rarely enjoyed a high approval rating. For example, for
nearly two decades following the Watergate scandal in the early 1970s, the national approval rating of
Congress hovered between 30 and 40 percent.33
Yet, incumbent reelections have remained largely unaffected. The reason has to do with the remarkable
ability of many in the United States to separate their distaste for Congress from their appreciation for
their own representative. Paradoxically, this tendency to hate the group but love one’s own representative
actually perpetuates the problem of poor congressional approval ratings. The reason is that it blunts voters’
natural desire to replace those in power who are earning such low approval ratings.
As decades of polling indicate, few events push congressional approval ratings above 50 percent. Indeed,
when the ratings are graphed, the two noticeable peaks are at 57 percent in 1998 and 84 percent in 2001
(Figure 11.15). In 1998, according to Gallup polling, the rise in approval accompanied a similar rise in
other mood measures, including President Bill Clinton’s approval ratings and general satisfaction with the
state of the country and the economy. In 2001, approval spiked after the September 11 terrorist attacks
and the Bush administration launched the "War on Terror," sending troops first to Afghanistan and later
to Iraq. War has the power to bring majorities of voters to view their Congress and president in an
overwhelmingly positive way.34

Figure 11.15 Congress’s job approval rating reached a high of 84 percent in October 2001 following the 9/11
terrorist attacks. It has declined fairly steadily ever since, reaching a low of 9 percent in November 2013, just after the
federal government shutdown in the previous month.

Nevertheless, all things being equal, citizens tend to rate Congress more highly when things get done and
more poorly when things do not get done. For example, during the first half of President Obama’s first
term, Congress’s approval rating reached a relative high of about 40 percent. Both houses were dominated
by members of the president’s own party, and many people were eager for Congress to take action to end
the deep recession and begin to repair the economy. Millions were suffering economically, out of work, or
428 Chapter 11 | Congress

losing their jobs, and the idea that Congress was busy passing large stimulus packages, working on finance
reform, and grilling unpopular bank CEOs and financial titans appealed to many. Approval began to fade
as the Republican Party slowed the wheels of Congress during the tumultuous debates over Obamacare
and reached a low of 9 percent following the federal government shutdown in October 2013.
One of the events that began the approval rating’s downward trend was Congress’s divisive debate
over national deficits. A deficit is what results when Congress spends more than it has available. It then
conducts additional deficit spending by increasing the national debt. Many modern economists contend
that during periods of economic decline, the nation should run deficits, because additional government
spending has a stimulative effect that can help restart a sluggish economy. Despite this benefit, voters
rarely appreciate deficits. They see Congress as spending wastefully during a time when they themselves
are cutting costs to get by.
The disconnect between the common public perception of running a deficit and its legitimate policy
goals is frequently exploited for political advantage. For example, while running for the presidency in
2008, Barack Obama slammed the deficit spending of the George W. Bush presidency, saying it was
“unpatriotic.” This sentiment echoed complaints Democrats had been issuing for years as a weapon
against President Bush’s policies. Following the election of President Obama and the Democratic takeover
of the Senate, the concern over deficit spending shifted parties, with Republicans championing a
spendthrift policy as a way of resisting Democratic policies.

Link to Learning

Find your representative at the U.S. House website (https://openstaxcollege.org/l/

29FndHReps) and then explore his or her website and social media accounts to see
whether the issues on which your representative spends time are the ones you think
are most appropriate.

11.4 House and Senate Organizations

Learning Objectives
By the end of this section, you will be able to:
• Explain the division of labor in the House and in the Senate
• Describe the way congressional committees develop and advance legislation

Not all the business of Congress involves bickering, political infighting, government shutdowns, and
Machiavellian maneuvering. Congress does actually get work done. Traditionally, it does this work in
a very methodical way. In this section, we will explore how Congress functions at the leadership and
committee levels. We will learn how the party leadership controls their conferences and how the many
committees within Congress create legislation that can then be moved forward or die on the floor.

PARTY LEADERSHIP
The party leadership in Congress controls the actions of Congress. Leaders are elected by the two-party
conferences in each chamber. In the House of Representatives, these are the House Democratic Conference
and the House Republican Conference. These conferences meet regularly and separately not only to elect
their leaders but also to discuss important issues and strategies for moving policy forward. Based on the
number of members in each conference, one conference becomes the majority conference and the other

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becomes the minority conference. Independents like Senator Bernie Sanders will typically join one or the
other major party conference, as a matter of practicality and often based on ideological affinity. Without
the membership to elect their own leadership, independents would have a very difficult time getting
things done in Congress unless they had a relationship with the leaders.
Despite the power of the conferences, however, the most important leadership position in the House is
actually elected by the entire body of representatives. This position is called the Speaker of the House and
is the only House officer mentioned in the Constitution. The Constitution does not require the Speaker to
be a member of the House, although to date, all fifty-four Speakers have been. The Speaker is the presiding
officer, the administrative head of the House, the partisan leader of the majority party in the House, and an
elected representative of a single congressional district (Figure 11.16). As a testament to the importance of
the Speaker, since 1947, the holder of this position has been second in line to succeed the president in an
emergency, after the vice president.

Figure 11.16 Republican Mitch McConnell of Kentucky (a), the majority leader in the Senate, and Republican Paul
Ryan of Wisconsin (b), the Speaker of the House, are the most powerful congressional leaders in their respective
chambers.

The Speaker serves until his or her party loses, or until he or she is voted out of the position or chooses to
step down. Republican Speaker John Boehner became the latest Speaker to walk away from the position
when it appeared his position was in jeopardy. This event shows how the party conference (or caucus)
oversees the leadership as much as, if not more than, the leadership oversees the party membership in the
chamber. The Speaker is invested with quite a bit of power, such as the ability to assign bills to committees
and decide when a bill will be presented to the floor for a vote. The Speaker also rules on House
procedures, often delegating authority for certain duties to other members. He or she appoints members
and chairs to committees, creates select committees to fulfill a specific purpose and then disband, and
can even select a member to be speaker pro tempore, who acts as Speaker in the Speaker’s absence. Finally,
when the Senate joins the House in a joint session, the Speaker presides over these sessions, because they
are usually held in the House of Representatives.
Below the Speaker, the majority and minority conferences each elect two leadership positions arranged
in hierarchical order. At the top of the hierarchy are the floor leaders of each party. These are generally
referred to as the majority and minority leaders. The minority leader has a visible if not always a powerful
position. As the official leader of the opposition, he or she technically holds the rank closest to that of the
Speaker, makes strategy decisions, and attempts to keep order within the minority. However, the majority
rules the day in the House, like a cartel. On the majority side, because it holds the speakership, the majority
leader also has considerable power. Historically, moreover, the majority leader tends to be in the best
position to assume the speakership when the current Speaker steps down.
Below these leaders are the two party’s respective whips. A whip’s job, as the name suggests, is to whip
up votes and otherwise enforce party discipline. Whips make the rounds in Congress, telling members the
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position of the leadership and the collective voting strategy, and sometimes they wave various carrots and
sticks in front of recalcitrant members to bring them in line. The remainder of the leadership positions in
the House include a handful of chairs and assistantships.
Like the House, the Senate also has majority and minority leaders and whips, each with duties very similar
to those of their counterparts in the House. Unlike the House, however, the Senate doesn’t have a Speaker.
The duties and powers held by the Speaker in the House fall to the majority leader in the Senate. Another
difference is that, according to the U.S. Constitution, the Senate’s president is actually the elected vice
president of the United States, but he or she may vote only in case of a tie. Apart from this and very
few other exceptions, the president of the Senate does not actually operate in the Senate. Instead, the
Constitution allows for the Senate to choose a president pro tempore—usually the most senior senator
of the majority party—who presides over the Senate. Despite the title, the job is largely a formal and
powerless role. The real power in the Senate is in the hands of the majority leader (Figure 11.16) and
the minority leader. Like the Speaker of the House, the majority leader is the chief spokesperson for the
majority party, but unlike in the House he or she does not run the floor alone. Because of the traditions
of unlimited debate and the filibuster, the majority and minority leaders often occupy the floor together
in an attempt to keep things moving along. At times, their interactions are intense and partisan, but for
the Senate to get things done, they must cooperate to get the sixty votes needed to run this super-majority
legislative institution.

THE COMMITTEE SYSTEM

With 535 members in Congress and a seemingly infinite number of domestic, international, economic,
agricultural, regulatory, criminal, and military issues to deal with at any given moment, the two chambers
must divide their work based on specialization. Congress does this through the committee system.
Specialized committees (or subcommittees) in both the House and the Senate are where bills originate and
most of the work that sets the congressional agenda takes place. Committees are roughly approximate
to a bureaucratic department in the executive branch. There are well over two hundred committees,
subcommittees, select committees, and joint committees in the Congress. The core committees are called
standing committees. There are twenty standing committees in the House and sixteen in the Senate (Table
11.2).

Congressional Standing and Permanent Select Committees

House of Representatives Senate
Agriculture Agriculture, Nutrition, and Forestry

Appropriations Appropriations

Armed Services Armed Services

Budget Banking, Housing, and Urban Affairs

Education and the Workforce Budget

Energy and Commerce Commerce, Science, and Transportation

Ethics Energy and Natural Resources

Financial Services Environment and Public Works

Foreign Affairs Ethics (select)

Homeland Security Finance

House Administration Foreign Relations

Table 11.2

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Congressional Standing and Permanent Select Committees

House of Representatives Senate
Intelligence (select) Health, Education, Labor and Pensions

Judiciary Homeland Security and Governmental Affairs

Natural Resources Indian Affairs (select)

Oversight and Government Reform Intelligence (select)

Rules Judiciary

Science, Space, and Technology Rules and Administration

Small Business Small Business and Entrepreneurship

Transportation and Infrastructure Veterans’ Affairs

Veterans’ Affairs

Ways and Means

Table 11.2

Members of both parties compete for positions on various committees. These positions are typically filled
by majority and minority members to roughly approximate the ratio of majority to minority members in
the respective chambers, although committees are chaired by members of the majority party. Committees
and their chairs have a lot of power in the legislative process, including the ability to stop a bill from
going to the floor (the full chamber) for a vote. Indeed, most bills die in committee. But when a committee
is eager to develop legislation, it takes a number of methodical steps. It will reach out to relevant
agencies for comment on resolutions to the problem at hand, such as by holding hearings with experts to
collect information. In the Senate, committee hearings are also held to confirm presidential appointments
(Figure 11.17). After the information has been collected, the committee meets to discuss amendments and
legislative language. Finally, the committee will send the bill to the full chamber along with a committee
report. The report provides the majority opinion about why the bill should be passed, a minority view to
the contrary, and estimates of the proposed law’s cost and impact.
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Figure 11.17 On July 13, 2009, Supreme Court justice Sonia Sotomayor began the first day of her confirmation
hearings before the U.S. Senate Committee on the Judiciary. The Senate Judiciary Committee is one of the oldest of
the sixteen standing committees in the Senate.

Four types of committees exist in the House and the Senate. The first is the standing, or permanent,
committee. This committee is the first call for proposed bills, fewer than 10 percent of which are reported
out of committee to the floor. The second type is the joint committee. Joint committee members are
appointed from both the House and the Senate, and are charged with exploring a few key issues, such
as the economy and taxation. However, joint committees have no bill-referral authority whatsoever—they
are informational only. A conference committee is used to reconcile different bills passed in both the
House and the Senate. The conference committees are appointed on an ad hoc basis as necessary when
a bill passes the House and Senate in different forms. Finally, ad hoc, special, or select committees are
temporary committees set up to address specific topics. These types of committees often conduct special
investigations, such as on aging or ethics.
Committee hearings can become politically driven public spectacles. Consider the House Select Committee
on Benghazi, the committee assembled by Republicans to further investigate the 2011 attacks on the U.S.
Consulate in Benghazi, Libya. This prolonged investigation became particularly partisan as Republicans
trained their guns on then-secretary of state Hillary Clinton, who was running for the presidency at the
time. In two multi-hour hearings in which Secretary Clinton was the only witness, Republicans tended to
grandstand in the hopes of gaining political advantage or tripping her up, while Democrats tended to use
their time to ridicule Republicans (Figure 11.18).35 In the end, the long hearings uncovered little more
than the elevated state of partisanship in the House, which had scarcely been a secret before.

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Chapter 11 | Congress 433

Figure 11.18 On October 22, 2015, former Secretary of State Hillary Clinton testified for the second time before the
House Select Committee on Benghazi, answering questions from members for more than eight hours.

Members of Congress bring to their roles a variety of specific experiences, interests, and levels of expertise,
and try to match these to committee positions. For example, House members from states with large
agricultural interests will typically seek positions on the Agriculture Committee. Senate members with a
background in banking or finance may seek positions on the Senate Finance Committee. Members can
request these positions from their chambers’ respective leadership, and the leadership also selects the
committee chairs.
Committee chairs are very powerful. They control the committee’s budget and choose when the committee
will meet, when it will hold hearings, and even whether it will consider a bill (Figure 11.19). A chair
can convene a meeting when members of the minority are absent or adjourn a meeting when things
are not progressing as the majority leadership wishes. Chairs can hear a bill even when the rest of the
committee objects. They do not remain in these powerful positions indefinitely, however. In the House,
rules prevent committee chairs from serving more than six consecutive years and from serving as the chair
of a subcommittee at the same time. A senator may serve only six years as chair of a committee but may,
in some instances, also serve as a chair or ranking member of another committee.
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Figure 11.19 In 2016, Republican Chuck Grassley of Iowa (a), the chair of the Senate Judiciary Committee, refused
to hold hearings on the nomination of Merrick Garland to the Supreme Court, despite the urging of his committee
colleagues. In the meantime, Garland met with numerous senators, such as Republican Susan Collins of Maine (b).
As of Election Day, no hearings had been held. Given the election of Republican Donald Trump, it would be logical to
presume that none will ever be held on this nominee. The Republican Senate will welcome a Trump nominee in early
2017.

Because the Senate is much smaller than the House, senators hold more committee assignments than
House members. There are sixteen standing committees in the Senate, and each position must be filled.
In contrast, in the House, with 435 members and only twenty standing committees, committee members
have time to pursue a more in-depth review of a policy. House members historically defer to the decisions
of committees, while senators tend to view committee decisions as recommendations, often seeking
additional discussion that could lead to changes.

Link to Learning

Take a look at the scores of committees (https://openstaxcollege.org/l/

29SenComms) in the House (https://openstaxcollege.org/l/29HosComms) and
Senate. The late House Speaker Tip O’Neill once quipped that if you didn’t know a
new House member’s name, you could just call him Mr. Chairperson.

11.5 The Legislative Process

Learning Objectives
By the end of this section, you will be able to:
• Explain the steps in the classic bill-becomes-law diagram
• Describe the modern legislative processes that alter the classic process in some way

A dry description of the function of congressional leadership and the many committees and
subcommittees in Congress may suggest that the drafting and amending of legislation is a finely tuned
process that has become ever more refined over the course of the last few centuries. In reality, however,
committees are more likely to kill legislation than to pass it. And the last few decades have seen a dramatic

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Chapter 11 | Congress 435

transformation in the way Congress does business. Creative interpretations of rules and statues have
turned small loopholes into the large gateways through which much congressional work now gets done.
In this section, we will explore both the traditional legislative route by which a bill becomes a law and the
modern incarnation of the process. We will also learn how and why the transformation occurred.

THE CLASSIC LEGISLATIVE PROCESS

The traditional process by which a bill becomes a law is called the classic legislative process. First, legislation
must be drafted. Theoretically, anyone can do this. Much successful legislation has been initially drafted
by someone who is not a member of Congress, such as a think tank or advocacy group, or the president.
However, Congress is under no obligation to read or introduce this legislation, and only a bill introduced
by a member of Congress can hope to become law. Even the president must rely on legislators to introduce
his or her legislative agenda.
Technically, bills that raise revenue, like tax bills, must begin in the House. This exception is encoded
within the Constitution in Article I, Section 7, which states, “All Bills for raising Revenue shall originate in
the House of Representatives; but the Senate may propose or concur with amendments as on other Bills.”
Yet, despite the seemingly clear language of the Constitution, Congress has found ways to get around this
rule.
Once legislation has been proposed, however, the majority leadership consults with the parliamentarian
about which committee to send it to. Each chamber has a parliamentarian, an advisor, typically a trained
lawyer, who has studied the long and complex rules of the chamber. While Congress typically follows the
advice of its parliamentarians, it is not obligated to, and the parliamentarian has no power to enforce his
or her interpretation of the rules. Once a committee has been selected, the committee chair is empowered
to move the bill through the committee process as he or she sees fit. This occasionally means the chair will
refer the bill to one of the committee’s subcommittees.
Whether at the full committee level or in one of the subcommittees, the next step is typically to hold
a hearing on the bill. If the chair decides to not hold a hearing, this is tantamount to killing the bill in
committee. The hearing provides an opportunity for the committee to hear and evaluate expert opinions
on the bill or aspects of it. Experts typically include officials from the agency that would be responsible for
executing the bill, the bill’s sponsors from Congress, and industry lobbyists, interest groups, and academic
experts from a variety of relevant fields. Typically, the committee will also accept written statements from
the public concerning the bill in question. For many bills, the hearing process can be very routine and
straightforward.
Once hearings have been completed, the bill enters the markup stage. This is essentially an amending and
voting process. In the end, with or without amendments, the committee or subcommittee will vote. If the
committee decides not to advance the bill at that time, it is tabled. Tabling a bill typically means the bill is
dead, but there is still an option to bring it back up for a vote again. If the committee decides to advance
the bill, however, it is printed and goes to the chamber, either the House or the Senate. For the sake of
example, we will assume that a bill goes first to the House (although the reverse could be true, and, in
fact, bills can move simultaneously through both chambers). Before it reaches the House floor, it must first
go through the House Committee on Rules. This committee establishes the rules of debate, such as time
limits and limits on the number and type of amendments. After these rules have been established, the bill
moves through the floor, where it is debated and amendments can be added. Once the limits of debate and
amendments have been reached, the House holds a vote. If a simple majority, 50 percent plus 1, votes to
advance the bill, it moves out of the House and into the Senate.
Once in the Senate, the bill is placed on the calendar so it can be debated. Or, more typically, the Senate
will also consider the bill (or a companion version) in its own committees. Since the Senate is much smaller
than the House, it can afford to be much more flexible in its rules for debate. Typically, senators allow each
other to talk and debate as long as the speaker wants, though they can agree as a body to create time limits.
But without these limits, debate continues until a motion to table has been offered and voted on.
436 Chapter 11 | Congress

This flexibility about speaking in the Senate gave rise to a unique tactic, the filibuster. The word
“filibuster” comes from the Dutch word vrijbuiter, which means pirate. And the name is appropriate, since
a senator who launches a filibuster virtually hijacks the floor of the chamber by speaking for long periods
of time, thus preventing the Senate from closing debate and acting on a bill. The tactic was perfected
in the 1850s as Congress wrestled with the complicated issue of slavery. After the Civil War, the use of
the filibuster became even more common. Eventually, in 1917, the Senate passed Rule 22, which allowed
the chamber to hold a cloture vote to end debate. To invoke cloture, the Senate had to get a two-thirds
majority. This was difficult to do, but it generally did prevent anyone from hijacking the Senate floor, with
the salient exception of Senator Strom Thurmond’s record twenty-four-hour filibuster of the Civil Rights
Act.
In 1975, after the heightened partisanship of the civil rights era, the Senate further weakened the filibuster
by reducing the number needed for cloture from two-thirds to three-fifths, or sixty votes, where it remains
today (except for judicial nominations for which only fifty-five votes are needed to invoke cloture).
Moreover, filibusters are not permitted on the annual budget reconciliation act (the Reconciliation Act of
2010 was the act under which the implementing legislation for Obamacare was passed).

Milestone

The Noble History of the Filibuster?

When most people think of the Senate filibuster, they probably picture actor Jimmy Stewart standing
exasperated at a podium and demanding the Senate come to its senses and do the right thing. Even for those
not familiar with the classic Frank Capra film Mr. Smith Goes to Washington, the image of a heroic single
senator sanding up to the power of the entire chamber while armed only with oratorical skill naturally tends to
inspire. Unfortunately, the history of the filibuster is less heartwarming.
This is not to say that noble causes haven’t been championed by filibustering senators; they most certainly
have. But they have largely been overshadowed by the outright ridiculous and sometimes racist filibusters
of the twentieth century. In the first category, the fifteen-and-a-half-hour marathon of Senator Huey Long of
Louisiana stands out: Hoping to retain the need for Senate confirmation of some jobs he wanted to keep from
his political enemies, Long spent much of his filibuster analyzing the Constitution, talking about his favorite
recipes, and telling amusing stories, as was his custom.
In a defining moment for the filibuster, Senator Strom Thurmond of South Carolina spoke for twenty-four
hours and eighteen minutes against a weak civil rights bill in 1957. A vocal proponent of segregation and
white supremacy, Thurmond had made no secret of his views and had earlier run for the presidency on a
segregationist platform. Nor was Thurmond the first to use the filibuster to preserve segregation and prevent
the expansion of civil rights for African Americans. Groups of dedicated southern senators used the filibuster
to prevent the passage of anti-lynching legislation on multiple occasions during the first half of the twentieth
century. Later, when faced with the 1964 Civil Rights Act, southern senators staged a fifty-seven-day filibuster
to try and kill it. But the momentum of the nation was against them. The bill passed over their obstructionism
and helped to reduce segregation.
Is the filibuster the tool of the noble minority attempting to hold back the tide of a powerful minority? Or does
its history as a weapon supporting segregation expose it as merely a tactic of obstruction?

Because both the House and the Senate can and often do amend bills, the bills that pass out of each
chamber frequently look different. This presents a problem, since the Constitution requires that both
chambers pass identical bills. One simple solution is for the first chamber to simply accept the bill that
ultimately makes it out of the second chamber. Another solution is for first chamber to further amend the
second chamber’s bill and send it back to the second chamber. Congress typically takes one of these two
options, but about one in every eight bills cannot be resolved in this way. These bills must be sent to a
conference committee that negotiates a reconciliation both chambers can accept without amendment. Only

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then can the bill progress to the president’s desk for signature or veto. If the president does veto the bill,
both chambers must muster a two-thirds vote to overcome the veto and force the president to sign it. If the
two-thirds threshold in each chamber cannot be reached, the bill dies (Figure 11.20).

Figure 11.20 The process by which a bill becomes law is long and complicated, but it is designed to ensure that in
the end all parties are satisfied with the bill’s provisions.

Link to Learning

For one look at the classic legislative process, visit YouTube

(https://openstaxcollege.org/l/29SRjaBill) to view “I’m Just a Bill” from the ABC
Schoolhouse Rock! series.

MODERN LEGISLATION IS DIFFERENT

For much of the nation’s history, the process described above was the standard method by which a
bill became a law. Over the course of the last three and a half decades, however, changes in rules
and procedure have created a number of alternate routes. Collectively, these different routes constitute
what some political scientists have described as a new but unorthodox legislative process. According to
political scientist Barbara Sinclair, the primary trigger for the shift away from the classic legislative route
was the budget reforms of the 1970s. The 1974 Budget and Impoundment Control Act gave Congress a
mechanism for making large, all-encompassing, budget decisions. In the years that followed, the budget
process gradually became the vehicle for creating comprehensive policy changes. One large step in this
transformation occurred in 1981 when President Ronald Reagan’s administration suggested using the
budget to push through his economic reforms.
The benefit of attaching the reforms to the budget resolution was that Congress could force an up or down
(yea or nay) vote on the whole package. Such a packaged bill is called an omnibus bill.36 Creating and
voting for an omnibus bill allows Congress to quickly accomplish policy changes that would have taken
many votes and the expending of great political capital over a long period of time. This and successive
438 Chapter 11 | Congress

similar uses of the budget process convinced many in Congress of the utility of this strategy. During the
contentious and ideologically divided 1990s, the budget process became the common problem-solving
mechanism in the legislature, thus laying the groundwork for the way legislation works today.
An important characteristic feature of modern legislating is the greatly expanded power and influence of
the party leadership over the control of bills. One reason for this change was the heightened partisanship
that stretches back to the 1980s and is still with us today. With such high political stakes, the party
leadership is reluctant to simply allow the committees to work things out on their own. In the House,
the leadership uses special rules to guide bills through the legislative process and toward a particular
outcome. Uncommon just a few decades ago, these now widely used rules restrict debate and options, and
are designed to focus the attention of members.
The practice of multiple referrals, with which entire bills or portions of those bills are referred to more than
one committee, greatly weakened the different specialization monopolies committees held primarily in the
House but also to an extent in the Senate. With less control over the bills, committees naturally reached
out to the leadership for assistance. Indeed, as a testament to its increasing control, the leadership may
sometimes avoid committees altogether, preferring to work things out on the floor. And even when bills
move through the committees, the leadership often seeks to adjust the legislation before it reaches the floor.
Another feature of the modern legislative process, exclusively in the Senate, is the application of the
modern filibuster. Unlike the traditional filibuster, in which a senator took the floor and held it for as
long as possible, the modern filibuster is actually a perversion of the cloture rules adopted to control the
filibuster. When partisanship is high, as it has been frequently, the senators can request cloture before any
bill can get a vote. This has the effect of increasing the number of votes needed for a bill to advance from
a simple majority of fifty-one to a super majority of sixty. The effect is to give the Senate minority great
power to obstruct if it is inclined to do so.

Link to Learning

The Library of Congress’s Thomas website (https://openstaxcollege.org/l/

29LibofCong) has provided scholars, citizens, and media with a bounty of readily
available data on members and bills for more than two decades.

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Key Terms

apportionment the process by which seats in the House of Representatives are distributed among the
fifty states

bicameralism the political process that results from dividing a legislature into two separate assemblies

bill proposed legislation under consideration by a legislature

cloture a parliamentary process to end a debate in the Senate, as a measure against the filibuster; invoked
when three-fifths of senators vote for the motion

collective representation the relationship between Congress and the United States as a whole, and
whether the institution itself represents the American people

conference committee a special type of joint committee that reconciles different bills passed in the House
and Senate so a single bill results

constituency the body of voters, or constituents, represented by a particular politician

delegate model of representation a model of representation in which representatives feel compelled to

act on the specific stated wishes of their constituents

descriptive representation the extent to which a body of representatives represents the descriptive
characteristics of their constituencies, such as class, race, ethnicity, and gender

enumerated powers the powers given explicitly to the federal government by the Constitution to
regulate interstate and foreign commerce, raise and support armies, declare war, coin money, and
conduct foreign affairs

filibuster a parliamentary maneuver used in the Senate to extend debate on a piece of legislation as long
as possible, typically with the intended purpose of obstructing or killing it

implied powers the powers not specifically detailed in the U.S. Constitution but inferred as necessary to
achieve the objectives of the national government

inherent powers the powers neither enumerated nor implied but assumed to exist as a direct result of
the country’s existence

joint committee a legislative committee consisting of members from both chambers that investigates
certain topics but lacks bill referral authority

majority leader the leader of the majority party in either the House or Senate; in the House, the majority
leader serves under the Speaker of the House, in the Senate, the majority leader is the functional leader
and chief spokesperson for the majority party

markup the amending and voting process in a congressional committee

minority leader the party member who directs the activities of the minority party on the floor of either
the House or the Senate

oversight the right to review and monitor other bodies such as the executive branch

politico model of representation a model of representation in which members of Congress act as either
trustee or delegate, based on rational political calculations about who is best served, the constituency or
the nation
440 Chapter 11 | Congress

pork-barrel politics federal spending intended to benefit a particular district or set of constituents

president pro tempore the senator who acts in the absence of the actual president of the Senate, who is
also the vice president of the United States; the president pro tempore is usually the most senior senator of
the majority party

representation an elected leader’s looking out for his or her constituents while carrying out the duties of
the office

select committee a small legislative committee created to fulfill a specific purpose and then disbanded;
also called an ad hoc, or special, committee

Speaker of the House the presiding officer of the House of Representatives and the leader of the
majority party; the Speaker is second in the presidential line of succession, after the vice president

standing committee a permanent legislative committee that meets regularly

surge-and-decline theory a theory proposing that the surge of stimulation occurring during presidential
elections subsides during midterm elections, accounting for the differences we observe in turnouts and
results

trustee model of representation a model of representation in which representatives feel at liberty to act
in the way they believe is best for their constituents

whip in the House and in the Senate, a high leadership position whose primary duty is to enforce voting
discipline in the chambers and conferences

Summary

11.1 The Institutional Design of Congress

The weaknesses of the Articles of Confederation convinced the member states to send delegates to a
new convention to revise them. What emerged from the debates and compromises of the convention was
instead a new and stronger constitution. The Constitution established a bicameral legislature, with a Senate
composed of two members from each state and a House of Representatives composed of members drawn
from each state in proportion to its population. Today’s Senate has one hundred members representing
fifty states, while membership in the House of Representatives has been capped at 435 since 1929.
Apportionment in the House is based on population data collected by the U.S. Census Bureau.
The Constitution empowers Congress with enumerated, implied, and inherent powers. Enumerated
powers are specifically addressed in the text of the Constitution. Implied powers are not explicitly called
out but are inferred as necessary to achieve the objectives of the national goverment. Inherent powers are
assumed to exist by virtue of the fact that the country exists. The power of Congress to regulate interstate
and intrastate commerce has generally increased, while its power to control foreign policy has declined
over the course of the twentieth century.

11.2 Congressional Elections

Since the House is closest to its constituents because reelection is so frequent a need, it tends to be more
easily led by fleeting public desires. In contrast, the Senate’s distance from its constituents allows it to act
more deliberately. Each type of representative, however, must raise considerable sums of money in order
to stay in office. Attempts by Congress to rein in campaign spending have largely failed. Nevertheless,
incumbents tend to have the easiest time funding campaigns and retaining their seats. They also benefit
from the way parties organize primary elections, which are designed to promote incumbency.

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Chapter 11 | Congress 441

11.3 Congressional Representation

Some representatives follow the delegate model of representation, acting on the expressed wishes of
their constituents, whereas others take a trustee model approach, acting on what they believe is in their
constituents’ best interests. However, most representatives combine the two approaches and apply each as
political circumstances demand. The standard method by which representatives have shown their fidelity
to their constituents, namely “bringing home the bacon” of favorable budget allocations, has come to be
interpreted as a form of corruption, or pork-barrel politics.
Representation can also be considered in other ways. Descriptive representation is the level at which
Congress reflects the nation’s constituents in terms of race, ethnicity, gender, sexuality, and socioeconomic
status. Collective representation is the extent to which the institutional body of Congress represents the
population as a whole. Despite the incumbency advantage and high opinion many hold of their own
legislators, Congress rarely earns an approval rating above 40 percent, and for a number of years the rating
has been well below 20 percent.

11.4 House and Senate Organizations

The leader of the House is the Speaker, who also typically the leader of the majority party. In the Senate,
the leader is called the majority leader. The minorities in each chamber also have leaders who help create
and act on party strategies. The majority leadership in each chamber controls the important committees
where legislature is written, amended, and prepared for the floor.

11.5 The Legislative Process

In the classic legislative process, bills are introduced and sent to the appropriate committee. Within the
committees, hearings are held and the bill is debated and ultimately sent to the floor of the chamber.
On the floor, the bill is debated and amended until passed or voted down. If passed, it moves to the
second chamber where the debating and amending begins anew. Eventually, if the bill makes it that far,
the two chambers meet in a joint committee to reconcile what are now two different bills. Over the last
few decades, however, Congress has adopted a very different process whereby large pieces of legislation
covering many different items are passed through the budgeting process. This method has had the effect
of further empowering the leadership, to the detriment of the committees. The modern legislative process
has also been affected by the increasing number of filibuster threats in the Senate and the use of cloture to
forestall them.

Review Questions

1. The Great Compromise successfully resolved 3. The process of redistricting can present
differences between ________. problems for congressional representation because
a. large and small states ________.
b. slave and non-slave states a. districts must include urban and rural areas
c. the Articles of Confederation and the b. states can gain but never lose districts
Constitution c. districts are often drawn to benefit partisan
d. the House and the Senate groups
d. states have been known to create more
2. While each state has two senators, members of districts than they have been apportioned
the House are apportioned ________.
a. according to the state’s geographic size
b. based on the state’s economic size
c. according to the state’s population
d. based on each state’s need
442 Chapter 11 | Congress

4. Which of the following is an implied power of 12. A congressperson who pursued a strict
Congress? delegate model of representation would seek to
a. the power to regulate the sale of tobacco in ________.
the states a. legislate in the way he or she believed
b. the power to increase taxes on the constituents wanted, regardless of the
wealthiest one percent anticipated outcome
c. the power to put the president on trial for b. legislate in a way that carefully considered
high crimes the circumstances and issue so as to reach a
d. the power to override a presidential veto solution that is best for everyone
c. legislate in a way that is best for the nation
5. Briefly explain the benefits and drawbacks of a regardless of the costs for the constituents
bicameral system. d. legislate in the way that he or she thinks is
best for the constituents
6. What are some examples of the enumerated
powers granted to Congress in the Constitution? 13. The increasing value constituents have placed
on descriptive representation in Congress has had
7. Why does a strong presidency necessarily sap the effect of ________.
power from Congress? a. increasing the sensitivity representatives
have to their constituents demands
b. decreasing the rate at which incumbents are
8. Senate races tend to inspire ________.
elected
a. broad discussion of policy issues
c. increasing the number of minority
b. narrow discussion of specific policy issues
members in Congress
c. less money than House races
d. decreasing the number of majority minority
d. less media coverage than House races
districts

9. The saying “All politics is local” roughly

14. How has the growing interpretation of
means ________.
earmarks and other budget allocations as
a. the local candidate will always win
corruption influenced the way congresspersons
b. the local constituents want action on
work?
national issues
c. the local constituents tend to care about
things that affect them 15. What does polling data suggest about the
d. the act of campaigning always occurs at the events that trigger exceptionally high
local level where constituents are congressional approval ratings?

10. What does Campbell’s surge-and-decline 16. House leaders are more powerful than Senate
theory suggest about the outcome of midterm leaders because of ________.
elections? a. the majoritarian nature of the House—a
majority can run it like a cartel
b. the larger size of the House
11. Explain the factors that make it difficult to
c. the constitutional position of the House
oust incumbents.
d. the State of the Union address being
delivered in the House chamber

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Chapter 11 | Congress 443

17. A select committee is different from a 20. Saying a bill is being marked up is just
standing committee because ________. another way to say it is being ________.
a. a select committee includes member of both a. tabled
chambers, while a standing committee b. neglected
includes only members of the House c. vetoed
b. a select committee is used for bill d. amended
reconciliation, while a standing committee
is used for prosecutions 21. The key means of advancing modern
c. a select committee must stay in session, legislation is now ________.
while a standing committee goes to recess a. committees
d. a select committee is convened for a specific b. the actions of the leadership
and temporary purpose, while a standing c. the budget process
committee is permanent d. the filibuster

18. Explain how the committees demonstrate a 22. Briefly explain the difference between the
division of labor in Congress based on classic model of legislating and the modern
specialization. process.

19. Stopping a filibuster requires that ________.

a. a majority of senators agree on the bill
b. the speaker steps away from the podium
c. the chamber votes for cloture
d. the Speaker or majority leader intervenes

Critical Thinking Questions

23. The framers of the Constitution designed the Senate to filter the output of the sometimes hasty House.
Do you think this was a wise idea? Why or why not?

24. Congress has consistently expanded its own power to regulate commerce among and between the
states. Should Congress have this power or should the Supreme Court reel it in? Why?

25. What does the trend toward descriptive representation suggest about what constituents value in their
legislature? How might Congress overcome the fact that such representation does not always best serve
constituents’ interests?

26. What factors contributed most to the transformation away from the classic legislative process and
toward the new style?

Suggestions for Further Study

Books:
Binder, Sarah A. 1997. Minority Rights, Majority Rule: Partisanship and the Development of Congress.
Cambridge, UK: Cambridge University Press.
Davidson, Roger H. and Walter J. Oleszek. 1981. Congress and Its Members. Washington, DC: Congressional
Quarterly Press.
Dodd, Lawrence C. and Bruce Ian Oppenheimer. 1981. Congress Reconsidered. Washington, DC:
Congressional Quarterly Press.
Hofstadter, Richard. 1965. The Paranoid Style in American Politics, and Other Essays. New York: Knopf.
444 Chapter 11 | Congress

Mann, Thomas E. and Norman J. Ornstein. 2012. It’s Even Worse Than It Looks: How the American
Constitutional System Collided with the New Politics of Extremism. New York: Basic Books.
Mayhew, David R. 1974. Congress: The Electoral Connection. New Haven, CT: Yale University Press.
Mutch, Robert E. 2014. Buying the Vote: A History of Campaign Finance Reform. Oxford: Oxford University
Press.
Oleszek, Walter J. 1978. Congressional Procedures and the Policy Process. Washington: Congressional
Quarterly Press.
Sinclair, Barbara. 1997. Unorthodox Lawmaking: New Legislative Processes in the U.S. Congress. Washington,
DC: CQ Press.
Films:
1939. Mr. Smith Goes to Washington.
1957. A Face in the Crowd.
1962. Advise and Consent.
1972. The Candidate.

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