Article I: The Structure of Congress
Welcome back to Constitutional Perspectives!
Last time, I gave a rough sketch of the entire structure of the constitutional scheme. The Constitution, as I outlined it, divides powers three ways: between the People and the government as a whole; between the states and the Union; and between the three branches of the federal government. The rest of Level One will be devoted to giving a basic explanation of each of these different aspects of the scheme.
Today, therefore, we're talking about Congress.
Now, there's a lot to say about Congress, so this is going to be the first of two lessons on the topic. This one will cover Congress's structure and operation, while the next one will look at the powers of Congress.
Article I, Section I vests "all legislative Powers herein granted" to "a Congress of the United States, which shall consist of a Senate and a House of Representatives." This is different from the other two so-called "Vesting Clauses" in the Constitution, in Articles II and III, which simply vest "the executive Power" and "the judicial power" in their respective branches. Congress, as we will see next time, has not a general legislative authority but only limited and enumerated powers.
Sections II and III then establish, respectively, the House and the Senate. Members of the House (a.k.a. "Representatives") are elected every two years; Senators, every six. Every state has exactly two Senators, no more, no less; with our current fifty states, this adds up to 100 Senators. The Senate is divided into three "classes," each of which is up for election during each biennial election to Congress. Unfortunately, 100 is not divisible by three, so one of the three classes currently has 34 members, while the others have only 33.
The size of the House of Representatives is left undetermined: it is up to Congress to determine. However, Section II, clause 3 (as amended) requires that representatives be apportioned according to the population of the states. If one state has twice as many people as another, then, it must have twice as many representatives. Of course, some imprecision is necessary given that we are limited to whole numbers of representatives. But the rule of apportionment means that, once Congress has chosen a size for the House, the number of representatives each state is entitled to is mathematically fixed. (One of the early algorithms for making this determination was invented by Jefferson himself, among others, though today we use a different one.)
No state can have fewer than one representative, and in theory if Congress were to set the size of the House equal to the number of states, then each state would have the same number of representatives (i.e. one). However, that has never transpired. The Constitution itself provided provisional apportionments for the first Congress, and provided that an "actual enumeration" of each state's population, i.e. a Census, be made every ten years after that.
Today, the House has 435 members, a number that has remained fixed ever since the 1910 census. The reasons for this were not altogether savory (and will be addressed in a higher Level of this series), and some today think that we should increase the size of the House, perhaps by a lot. Many in the early Republic, as well, were quite concerned that the number of representatives not be too small; a major Antifederalist complaint against the Constitution was that federal representatives would be too removed from the People, as their districts would be far larger than those of state legislators. One of the twelve amendments originally proposed as part of the Bill of Rights would have provided a formula regulating the size of the House, but it was never adopted (in part because James Madison, who did not really share the concern about district size, introduced a stray minus sign into the mix).
From among these members, each House chooses a handful to act as leadership. The Vice President is, formally, the President (a.k.a. presiding officer) of the Senate. But the Vice President usually has better things to do. Wait, did I say that? No, they absolutely do not, but despite having nothing else to do, Vice Presidents rarely actually show up at the Senate to preside over its mundane day-to-day. Instead, the Senate chooses a President Pro Tempore, who acts as President of the Senate when the Vice President is away. The House, meanwhile, chooses a Speaker, who, along with the President Pro Tempore, forms the (formal, constitutional) leadership of Congress. In practice, for contingent historical reasons, the Speaker is actually the leader of the House, while the President Pro Tem is more of a ceremonial figure, and the actual power in the Senate is the Majority Leader (i.e. the caucus leader of the majority party). There is a Majority Leader in the House, as well, and Minority Leaders in each chamber, but none of these are as significant figures.
Today, members of both the House and the Senate are chosen through popular elections, but this was not always the case: the original Constitution provided for Senators to be chosen by the state legislatures. This was changed in 1913 by the Seventeenth Amendment. As a result, the Constitution now specifically requires that every Senator be directly chosen by the people of their entire state. The method used to select Representatives, on the other hand, is left somewhat indeterminate. As an initial matter it is left to the states to determine the "Times, Places, and Manner" of congressional elections (Section IV), but Congress has the power to override these choices. In the early Republic states experimented with many different ways of choosing their representatives; a common variant was having every single seat be chosen on a single, statewide ticket. This quickly grew tiresome, as it created tremendous volatility, and Congress banned the practice in 1842 (although apparently the ban was only partially effective until new legislation in 1967).
Although the Constitution requires popular elections to Congress, the question of who exactly gets to vote in those elections is (largely) left up to the states. The only requirement is that the "electors" for Congress (which, here, just means the voters) shall be the same as those for the larger house of each state's legislature. (Why the larger house? Because many states at the Founding had property qualifications for voting, and these were likely to be more onerous for the smaller "upper" chambers of the legislature.) In other words, the rules about who gets to vote are to be the same for state and federal legislative elections. Over time, the Constitution has been amended to protect the voting rights of specific groups. But, so long as they comply with those rules, states are still in charge of determining who gets to vote.
You can see how the structure of Congress reflected the Great Compromise at the Constitutional Convention. Partisans of the Virginia Plan wanted representation based on population; partisans of the New Jersey plan wanted equal representation for each state. So the former was used for the House and the latter for the Senate. As we will see in Level Two, these two different schemes of representation ultimately reflected different views about the nature of the federal union. Two Senators per state, chosen by the state legislatures, made sense for a federation. Directly-elected representatives apportioned by population, on the other hand, made sense for a single nation. In compromising on the composition of Congress, then, the Founders were compromising on the nature of the Union. (It's probably fine. I'm sure it didn't cause any problems down the line...)
That just about covers the composition of Congress: now for how it operates. The lawmaking process is spelled out in Article I, Section VII. These are probably familiar for those of my readers who have ever read the news out of Washington, D.C. The basic scheme is what we call "bicameralism and presentment": in order for a bill to become law, it must be passed by both the House and the Senate – the exact same bill, with the exact same legislative text – and then signed by the president. Interestingly, the Constitution never says in so many words that it takes a majority vote for a chamber to "pass" a bill. This was just understood as an inherent quality of democratic governance. Instead, the Constitution specifies whenever something more than a simple majority is needed.
The most important of these situations occurs when both Houses of Congress have approved a piece of legislation but the president refuses to sign it – or vetoes it, to use the common term. This is not the end of the story! A bill that has been vetoed is then sent back to Congress (along with a message from the president explaining the reasons for the veto), and each House has another opportunity to vote on it. If two thirds of both Houses vote for the bill, it becomes law despite the presidential veto; this is called a veto override. (There are some technicalities about what happens if the president just sits on the thing, neither signing it nor returning it to Congress: most of the time, after ten days of inaction, the bill becomes law automatically, but if Congress has adjourned during that ten-day period then the president has executed a so-called "pocket veto.")
This system of bicameralism and presentment is how Congress makes laws in our country. It is the only way by which Congress can make a law. It is also, with a handful of specific exceptions, the only way that Congress can do anything that has any legal effect.
Subject to that overarching restriction, however, each House has more or less total authority to write its own rules of operation (Section V). Almost everything about how Congress operates on a day to day basis is determined by these rules. By far the most significant feature of the congressional rules, over the entire sweep of American history, is the committee system. Each House organizes itself into a number of committees – the number has, of course, steadily increased over time – that have authority over particular subject matter. There are committees, for instance, on agriculture, finance, foreign affairs, intelligence, etc. Each member will be assigned to one or more committees (one in the House, more in the Senate, I think), and they will often seek out assignments relevant to their interests: members from rural states would often seek out the agriculture committees, etc.
In general, when someone proposes a piece of legislation, it is forwarded to the committee with jurisdiction over the topic of the bill. That committee will then hold hearings on the bill, and will consider whether it needs to be amended. Once the committee has a draft to its liking, it will vote on whether to approve the bill, thereby submitting it for consideration by the full chamber. Or... it won't do any of that stuff. Committees are one of the most important choke-points in the legislative process. A vanishingly small proportion of the bills referred to a given committee ever receive a hearing, let alone secure the actual approval of the committee. This has made the chairs of important committees into extremely powerful figures in Congress, since they have the power to essentially sit on any legislation within their area that they don't like.
Once a bill has been passed by its committee, there will be a certain amount of debate on the floor of the full chamber, which will then vote on whether to pass the bill. Or... it won't do any of that stuff. There are a lot of choke-points. The majority party in each chamber is more or less in control of what happens on the floor, and if they (or more specifically, their party leader) don't want to bring something up for a vote, they don't have to. In the House, the Speaker can more or less bring anything they want up for a vote.
The Senate is a little more complicated. Partly because of its small size, partly because of its reputation as an elite deliberative body, the Senate has always prized the autonomy and prerogatives of every individual Senator. The default mode of proceeding in the Senate is by so-called unanimous consent: someone (typically the majority leader) will propose to do something, and if literally no one objects, then they proceed to that thing. If someone does object, well, then you're in for a ride. There are various means by which the Senate can operate even over an objection, but they take a lot of time.
And for over a century after the Founding, there was simply no way to actually vote on something without unanimous consent. The Senate would debate, and when every Senator felt they had said their peace, they would vote. Somehow they made this work until the debate over the League of Nations Treaty in 1920, at which point they adopted a new rule allowing two-thirds of the Senate to close debate and proceed to the vote on passage against the wishes of the other third. In the late 1970s this threshold was further lowered to three-fifths (or sixty out of one hundred). But a subtle change at that time actually made it must easier to prevent being voted upon. Because now it did not require a certain proportion of those who showed up to vote (which is the default norm for votes in Congress). Instead, so long as at least one (1) Senator objects, the majority must actually muster sixty entire Senators voting to close debate.
This practice, by which a minority can prevent something from coming up for a vote in the Senate even if a majority would support it, is what we call the filibuster. In the last twenty years or so, it has become routine for the minority party to filibuster absolutely everything that it can. As a result, basically no legislation can pass without the support of sixty Senators. For those in my audience who are not old enough to remember, I swear it didn't used to be like this. We used to have a national legislation that could enact legislation with the support of a majority. We used to be a proper country.