Elections and
Assembly of Congress
Article I, Section 4 begins, “The Times, Places and
Manner of holding Elections for Senators and Representatives, shall be
prescribed in each State by the Legislature thereof.” This clause establishes that each State
may have its own methods for electing members of the Congress. The same applies, as determined in Article
II, to presidential elections. If there
is a discrepancy, or a question regarding the acceptance of ballots, it is not
the job of the courts to make final determination. Article I, Section 4 gives that authority to
the State legislatures.
The same clause adds, after giving the State
legislatures authority over federal elections, that “Congress may at any
time by Law make or alter such Regulations, except as to the Places of chusing
Senators.”
Congress, as discussed earlier, is bicameral. The two Houses of Congress are the House of
Representatives, and the United States Senate.
The House of Representatives, at the time of the writing of the
Constitution, was designed to be as it is now, the voice of the people. Representatives have always been elected by a
direct vote. The United States
Senate was the voice of the States, appointed by the State legislatures. The appointment of the Senators by
representatives of the people is an example of an indirect vote.
As the representation of the people, and the States,
Congress was not seen as the greatest potential danger in the federal
government. Congress was the voice of
the people and the States in the federal government; the eyes of the parents to
ensure the central government did
not grow beyond the authorities granted to it.
With Congress representing the oversight by the people, and the States,
the oversight powers given to the federal legislature often led to other
authorities that allowed Congress to act as a check and balance against
potentially dangerous government activity.
Giving Congress oversight authorities was a way to ensure that Congress
participated in the concept of a government “by the consent of the governed.”
Though elections were established with the State
legislatures prescribing the times, places and manner of holding elections, as
a check and balance against that authority, Congress may pass laws to “make
or alter such regulations.”
At the end of the clause giving Congress the authority
to act as an oversight regarding the manner in which elections are held, a
qualifier is present, expressing, “except as to the Places of chusing
Senators.”
A majority of delegates at the Federal Convention in
1787, by the conclusion of the assembly, were strong supporters of the
sovereignty of the States, and the parental nature of the States in relation to
the newly formed federal government, and the duty of the States as the final
arbiters of the United States Constitution to ensure the new government
functioned within the limitations granted to it. A part of that function by the States
included the very important fact that the States had a voice in Congress with
appointed U.S. Senators. The framers did
not want that authority to be tinkered with, so they remind future generations
at the end of this clause that though Congress has lawmaking authorities, and
oversight authorities, manipulating the dynamics of government where the
people, and the States, have a voice
in the United States Congress is something not to be fiddled with. A similar advisement also appears at the end
of Article V., “and that no State, without its Consent, shall be deprived of its
equal Suffrage in the Senate.”
Oversight powers by the States were seen by the
framers as being a right of the States, and as with natural rights of the
people, a right is not something that should be able to be taken, but if the
holder of the right wishes to give it away, no law can prevent such a foolish
action.
The second paragraph of Article I, Section 4 reads, “The
Congress shall assemble at least once in every Year.” The first thought regarding this clause by
the typical reader may be, “Of course. How
can they get anything done if Congress isn’t assembling?”
Another question may be, “Why did the framers feel it
to be necessary to insert this clause into the Constitution?”
During the convention in 1787, there were some who
felt this clause was “overburdensome.”
Government was not supposed to dominate their everyday lives. The members of Congress were not professional
politicians, nor did they care to be.
They had businesses to run, and lives to live. Surely, the attitude of many of the Founding
Fathers was, there is not enough business to compel Congress to meet every
single year!
Those who supported the concept of an annual meeting
reminded the others that Congress was the check the people and the States had
available to them in the federal government.
It was the duty of Congress to serve as a check against the President,
and the federal judiciary. To be an
effective check, Congress must meet at least once per year. The clause, it was argued, was for the
benefit of the people.
In present day politics, the opposite seems to be the
norm. Government is viewed as being
broken if they do not act on an endless and constant flow of issues,
committees, and crises. Politicians view
their position as their job, rather than a service they are providing.
Originally, the required meeting day was the first
Monday in December. That was later
changed to noon on the third day of January by the 20th Amendment.
Congressional 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, the present members 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.
In Article II, Section 2, the President is given the
authority to make recess appointments, when Congress is not in
session. Normally, the United States
Senate has advise and consent authority over appointments, which means
that appointments of personnel to fill vacancies are possible for the President
to grant, but such appointments requires the approval of the United States
Senate (voice of the States). If the
Senate is not in session, and an appointment is necessary, the President may
make appointments, but the terms of those appointments only last to the end of
the Senate’s next session. If the Senate
is in a pro-forma session, the President may not make any appointments. With Congress only in session when there is
work to be done, and the Founders believing that would likely only be once a
year, the ability of the President to make appointments when Congress is not in
session was a valuable, and necessary, tool.
In today’s political environment, it seems like Congress is always in
session, so recess appointments are not as common.
In early January of 2012, President Barack Obama used
a recess appointment to name Richard Cordray the new Director of the Consumer
Financial Protection Bureau (CFPB). The
CFPB is a powerful bureaucracy created by the 2010 Dodd-Frank financial
overhaul legislation. However, even
though most of the members of Congress were on vacation, the United States
Senate was still in session. President
Obama’s definition of recess, it turned out, was broader than the
Constitution’s definition. In reality,
the U.S. Senate was in pro-forma session.
John Berlau, Director of CEI's Center for Investors and Entrepreneurs,
called the nomination of former Ohio Attorney General Richard Cordray
"very troubling," criticizing both Obama's controversial use of a
recess appointment, and the selection of Cordray itself. Berlau later asked, “What's next, appointing
nominees when the Senate takes a bathroom break?”
Article I, Section 5 also allows each House of
Congress to determine 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 used when Charles Rangel
broke the rules of the House of Representatives. He faced a panel for his actions, and was
punished by censure in December of
2010. He later sued, spending about a
third of his 2014 campaign cash on legal bills in a failed bid to overturn his
fall from congressional grace. On
December 11, 2013, a federal judge in Washington dismissed the lawsuit, filed
by Rangel in the previous April, to get the censure overturned.
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. Deals
behind closed doors were not supposed to be a part of our political system.
Congressional
Compensation, Privileges, Restrictions
When President George Washington took office, he
refused to accept the constitutionally allowed compensation for holding the
office. He viewed his office as being a
privilege, and an opportunity to once again serve the country he loved. During the Constitutional Convention,
Benjamin Franklin considered proposing that elected government officials not be
paid for their service. By the end of
the debate, it was decided that government representatives should receive fixed
stipends by which they may be compensated for the devotion of their time to
public service. It was also determined,
however, that the compensation should not be so high that it would become the
motive for seeking office.
Article I, Section 6 of the Constitution addresses
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.
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 who 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.
To explain this clause, let’s visit a recent violation
of it during the Obama administration.
After Barack Obama won the 2008 Presidential Election,
he announced that Hillary Clinton would be his new Secretary of State. The position of Secretary of State received a
pay raise while Hillary Clinton was a member of the United States Senate. Article I, Section 6 states that “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 be been created, or the Emoluments whereof shall have been encreased
during such time.” Since Clinton was
a Senator at the time the position of Secretary of State was given a raise,
technically she was not eligible for the position to which she was
appointed. To resolve this problem, and
still allow Mrs. Clinton to accept the position, the Democrats applied the Saxbe 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 Saxbe Fix, or a Salary
rollback, is an unconstitutional action.
The clause in the Constitution 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 encreased during such
time.”
The Saxbe 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.
As a
tool, the Saxbe fix was nothing new. The
salary rollback in the case of a violation of Article I, Section 6, 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, was first
used in 1909. The “Saxbe” name was
applied to the political maneuver later in history. The Saxbe Fix is named for William Saxbe, a
Senator appointed Attorney General by President Richard Nixon in 1973.
copyright Douglas V. Gibbs 2015
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