Monday, August 10, 2015

Lake Elsinore Constitution Class: Congressional Procedures

Instructor Douglas V. Gibbs, tonight in Lake Elsinore, will be teaching regarding Congressional Procedures.  We meet at 6:00 pm at C.H.O.B., 119 W. Peck Street, Lake Elsinore.

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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