2.5 - Article I, Section 4; Elections for Senators and Representatives
Article I, Section 4 establishes that each State may have its own methods for electing members of the Congress, and mandates, or requirements, and that Congress must meet at least once per year. This means that it is up to the State Legislatures to make the rules for elections, including the federal elections held in their State. Understanding this, it becomes clear that when the hanging chad controversy arose (Gore/Bush, 2000), the case should have remained with the state legislature to decide on, and should have never gone to the courts.
In Clause 1 of Section 4, though the Constitution specifically gives the times, places and manner of holding elections to the State’s legislatures, the United States Congress is given the ability to pass laws to alter parts of these procedures. When Congress acts upon this authority, it is often in a manner to make an election practice uniform among the States. Note that Congress is not given that ability in regards to the places of choosing Senators. Remember, the United States Senators were appointed by the State Legislatures at that time. Appointment of Senators by the States was changed to a vote by the people by the 17th Amendment in 1913.
Clause 2 requires for Congress to assemble at least once per year. The day of their first meeting was changed from December to January by the Twentieth Amendment.
Questions for Discussion:
1. Why do you think the authority for prescribing the times, places, and manner of holding elections was given to the State Legislatures?
2. Why was Congress given the allowance to pass laws that may make or alter such regulations?
3. Why was the federal government prohibited from influencing the places for choosing Senators?
Resources:
Madison’s Notes on the Constitutional Convention, Avalon Project, Yale University: http://avalon.law.yale.edu/subject_menus/debcont.asp
2.6 - Article I, Section 5; Procedure
Article I, Section 5 requires Congress to have a minimum number of members present in order to do business. That majority constitutes a quorum, and if the Congress deems it necessary, may set fines for members who do not show up. The houses of Congress may remain in session, during which no formal business is conducted because the house does not have a quorum, so as to prevent executive actions that may be carried out during recess. This kind of session is called a pro forma session.
Section 5 also states that each house may have its own rules, keep a journal to record proceedings and votes, and that neither house may adjourn without the permission of the other. Section 5 also establishes that if a member of a house does not follow the established rules, the house may punish its members for disorderly behavior, and by a two thirds vote may actually expel a member from Congress.
The establishment of rules, holding a hearing in regards to the breaking of those rules, and punishing a member for his behavior, as set forth by Article I, Section 5, was recently used when Charles Rangel broke the rules of the House of Representatives. He faced a panel for his actions, and was punished by censure.
The mandate to keep a journal to record proceedings and votes was included in this section because the Founders wanted government to be transparent, accessible, and accountable to the people.
Terms:
Adjourn: Suspend proceedings to a later time and/or place.
Censure: Procedure for publicly reprimanding a public official for inappropriate behavior. There are normally no legal consequences. Censure is not mentioned in the Constitution, but is a procedure devised by the legislature as a tool for formal condemnation of a member of the congressional body.
Pro Forma Session: A session in either house of the United States Congress at which no formal business is expected to be conducted, so as to fulfill the obligation "that neither chamber can adjourn for more than three days without the consent of the other." Pro forma sessions are also used to prevent the President from pocket-vetoing bills, calling the Congress into a special session, and to prevent the President from making recess appointments.
Quorum: Minimum number of members of an assembly necessary to conduct the business of that group.
Questions for Discussion:
1. To conduct business, the houses of Congress needs a quorum. If they do not have a majority, they may remain in session through a rule established by Congress called pro forma. What advantages does pro forma give the houses of Congress when it comes as serving as a check against the executive branch?
2. Why do you think neither house can adjourn without the permission of the other?
3. The houses of Congress establish their own rules of procedure. If a member breaks any of these rules, Congress also has the authority to punish the rule breaker. One type of punishment is called censure. How is censure an adequate punishment?
4. How has the concept of transparency changed over the last two hundred years?
Resources:
Edwin Mora, “Top Democrat Dodges Question on Constitutionality of Obama Appointments, Says Pro Forma Sessions Are ‘Games Being Played’,” CNSnews.com (January 6, 2012): http://cnsnews.com/news/article/top-democrat-dodges-question-constitutionality-obama-appointments-says-pro-forma
Joseph Andrews, A Guide for Learning and Teaching The Declaration of Independence and The U.S. Constitution - Learning from the Original Texts Using Classical Learning Methods of the Founders; San Marcos: The Center for Teaching the Constitution (2010).
Madison’s Notes on the Constitutional Convention, Avalon Project, Yale University: http://avalon.law.yale.edu/subject_menus/debcont.asp
2.7 - Article I, Section 6; Compensation, Privileges, Restrictions
Article I, Section 6 goes over compensation, and the rules regarding such. Section 6 also establishes that members of Congress may not be detained while traveling to and from Congress, and that they cannot hold any other office in government while in Congress. The compensation was expected to remain low, for the founders did not wish for the compensation to be so high that it became the motive for seeking office.
Protection from arrest while traveling to and from Congress was not only a privilege based on those enjoyed by their counterparts in the British Parliament, but also a protection from political enemies that may wish to keep certain members of Congress from voting.
This section also indicates that no member of Congress shall be appointed to a later office if while in Congress the office was created, or a raise in pay was enacted for that office. For example, the position Secretary of State received a pay raise while Hillary Clinton was in the Senate, so technically she was not eligible for the position when she was appointed. To fix this, the Democrats applied the Saxby Fix, meaning they undid the raise, and Hillary Clinton received the compensation that was in place before the vote she participated in while in the Senate. The Saxby Fix, or a Salary rollback, is an unconstitutional action, for the clause is clear: “No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time.”
The Saxby Fix, or the rollback of the salary, does not change the fact that the emoluments increased during the time Hillary Clinton was in the U.S. Senate.
Terms:
Saxby Fix: Salary rollback. A mechanism by which the President of the United States can avoid restrictions by the United States Constitution which prohibits the President from appointing a current or former member of Congress to a position that was created, or to an office position for which the pay and/or benefits were increased, during the term for which that member was elected until the term has expired. First used in 1909, the Saxbe Fix is named for William Saxbe, a Senator appointed to Attorney General by Nixon in 1973.
Resources:
Madison’s Notes on the Constitutional Convention, Avalon Project, Yale University: http://avalon.law.yale.edu/subject_menus/debcont.asp
Saxbe, William B. I've Seen the Elephant: An Autobiography. Kent State University Press (2000).
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