Congress, political parties, and fair representation

April 2007

Abstract:
Although a fair, representative Congress is vital to our democracy, the rules of the Congress and the political parties have combined to make Congressional representation unequal and unfair. What to do about it.

Power to the Congress

The U.S. Congress, our federal representative body, is the preeminent federal power in the United States.  It's not accidental that the legislative branch of government (Congress) is described first in the U.S. Constitution, followed by the Executive and the Judiciary branches.  Congress sets national policy through legislation, and implements this through its budgetary, legislative, rulemaking, delegation, and appointment-setting authorities.  The President – the chief executive – executes the legislation and the budget of the Congress, which constitute his orders.  Congress controls the purse strings for all the branches of government; Congress has approval authority over appointments within the Executive and Judicial branches and the Military (though it has delegated most such appointments to the President); Congress writes the rules for operation of all the branches, and Congress is the only body that can remove members of all of the three branches.

Of course the Executive and Judicial branches have significant powers.  The President can veto congressional initiatives, but Congress has the final say, as it can override the President's veto.  While the President is Commander-in-Chief of the armed forces, the Congress can by budgetary and legislative means stop any military plans and activities.  The President has no further authority over the Congress, while the Congress has authority to remove the President or any officer of the Executive branch, including military officers, under circumstances which it itself defines.  Similarly with the Judiciary:  the Supreme Court may strike down legislation from the Congress as being unconstitutional, but the Congress may trump the Court by rewriting the legislation or by initiating amendments to the Constitution to overcome such blocks.  Finally, the Congress may remove Justices of the Supreme Court, and may alter the Court's authority, its rules, and its composition by law.  So in the end, Congress is the ultimate federal authority under the Constitution, as befits the representative body of the people.

Equal representation in Congress

Equal representation in the House of Representatives is key a principle of the Constitution, elaborated through the fourteenth amendment and affirmed and clarified by the Supreme Court.  To the degree possible, no geographical grouping of residents in the U.S. (i.e., congressional districts) is to have greater or lesser representation in the House than other such groupings.  A sine qua non for equal representation is that when we send our representative to the House, he or she have the same power and rights as every other member of the House.  Because, if our representative does not have equal power and rights in the House, then our district does not have equal power and rights, and our representation is not equal and fair.  However, as noted in a previous BRJ essay (do see this for background), over the more than 200 year history of the Congress, power-brokers and -seekers have succeeded in writing internal rules in the Congress that, in both the Senate and the House, give certain individuals and certain groupings more than their share of authority, which means that your district and mine get a lesser share of authority and less effective, i.e. unequal, representation.  The time is long overdue to correct this inequality.

In what ways are our representatives unequal, and what practical effect does this have on our representation in Congress?  To take the House of Representatives as an example  – though a similar situation exists in the Senate –  the three bad actors that deny us fair representation, all legitimized in the rules of the Congress, are:

1.  Seniority
For many decades, seniority ruled the House.  When we sent a new congressman to Washington, we could expect that he would have no influence  – in other words, we would be practically unrepresented, except for the vote –  throughout his first term and more.  The best he could do during his first term would be to kiss up to his party's leadership, hoping for better times down the road if we reelected him.  If he behaved like a good party man, the party would throw in a few scraps of funding for his home district and give him a few bucks for his reelection.  If he didn't, they'd find someone else more amenable to direction.  While the importance of seniority has been reduced over the past couple of decades, important remnants of the practice remain in the rules of the House.  The remaining rules still result in the different representatives having varying levels of power and authority, and therefore American citizens are, by these rules, condemned to having varying levels of influence in their representative body.  Rules which have this effect lead directly to unequal representation, and so violate our constitutional guarantees.

Seniority brings to the bearer a feeling of smug superiority.  See "senior" Senators parade their seniority in televised committee hearings.  They're on the most important committees, they sit nearest the center and get to speak first.  They think of themselves as belonging to an exclusive club.  But it's not the senators' club.  It's the people's club, and the senators often seem to forget that they are merely there to represent the people.  Each state and each district must have equal rights in the Congress.  A state, or its representatives, must not be given extra rights or perks simply because the state or the district has not changed their representative for a period of time.  Order of precedence, when there needs to be one, should be determined either randomly or on a rotating basis, preferably by both means.

2.  Power positions in Congress
Whether reached through seniority or by party caucus, individual positions of extraordinary political power have developed in the Congress, codified in the rules of both the House and the Senate.  This situation may not seem like something to cavil about;  after all a representative body must have organization and leadership, and the Constitution does authorize the Congress to write its own rules for governing its business.  But the problem that develops, and has developed, is similar to that mentioned above, and more serious:  Certain members, representing certain districts, have formal authority over other districts' representatives, and as a result the representation granted American citizens is highly unequal and thereby unfair.  The Speaker of the House, majority party leaders, and committee chairmen, have power over the agenda and the proceedings in the House that your representative and mine do not have.  They may delay or derail legislation proposed by other members, as they do when the proposals are not to their (or their party's) liking.  When, as is frequently the case, all these power centers are controlled by one political party, democratic representation takes a vacation, and business in Congress consists simply of power plays for the purposes of the congressional power wielders.  The principle of fair representation in Congress must be:  No legislator shall have authority or preferred status over another, because that disenfranchises the citizens represented by the subordinated legislator.

The notion that power centers in Congress are undemocratic, that superiority of some of our representatives over others is unfair and unconstitutional, will perhaps strike some readers as odd;  but consider the challenge of designing, from scratch, a representative assembly where each district is to be fairly and equally represented.  Our present Congress, with its unequal power and influence, would not pass the test.  Unless we happen to be represented by one of the few wielders of power, you and I and our districts are underrepresented in this Congress.  But this problem can hardly be resolved without tackling the next, and greatest, abuse in Congress:

3.  Political parties: The bane of Congress
Nothing contributes so much to everything that is bad about the Congress as the presence and the power of the political parties.  Logjams, contrived disagreements for party purposes where no disagreement would otherwise exist, filibusters, mindless opposition, equally mindless congressional submission to the President, and members' submission to the will of their party, are all direct consequences of the power of political parties in the Congress.  The recent essay cited above introduced the idea that political parties have no constitutional standing in the federal government.  Parties are nongovernmental, private associations.  They are not elected by the people, and have no constitutional or legal authority to govern or to influence government in any way, beyond that which is available to every other interest group.

In a typical European parliamentary system (there are several variants), voters vote for a party.  The ballot contains the name of the party, with its list of candidates.  Each party then gets parliamentary seats in proportion to their fraction of the vote.  There may be a geographical element in some elections, and there may be the opportunity to vote individually for candidates on the party list, rather than for the party as a whole, something that few voters bother with.  So the vote is for the organization – the party – and in the end it's the party leaders, whether elected to office or not, who are given the moral authority to guide the government and make both legislative and executive decisions.

The American system is – or was meant to be – completely different.  In contrast to parliamentary systems, U.S. voters don't cast votes for parties, but for individuals who are to represent the residents of their district or their state.  This should mean that political parties should have much less influence in Congress than in European parliaments, because whereas European political parties have a formal, legal place in their parliaments, American political parties have no such place under our laws and Constitution.  American political parties have, however, coveted the power that parties have in European parliaments, and have managed to arrogate to themselves similar power in the U.S. Congress by writing into the rules of the House and the Senate specific references to the political parties.  Thus the rules of the House of Representatives, for example, make frequent reference to, and give specific authorities to, the political parties.  The rules give authorities and rights to the "majority" and "minority" leaders (codifying the notion of only two parties), as well as to "party caucuses", which under the rules are expected to propose committee memberships, for example.  The rules also provide for proportions of members representing each party on committees.  Thus, the concept is codified in the Congressional rules that the representatives whom we send to the Congress from all over this country to speak for our districts shall by rule form themselves into two opposing camps and shall operate in the Congress within this adversarial setting, each representing, not the people of their district, as they should, but a political camp whose decisions are made far from their home district.  And here again, the rules call for representatives of some districts, selected in party caucuses, to have authority over representatives of other districts.

The political positions that emerge from party caucuses within the Congress are more than a little influenced by a certain non-governmental body:  The national political party headquarters, with their unelected leadership, exercise openly acknowledged influence over our representatives in Congress.  The influence ranges from strong suggestion on some issues to threats on others, but all carry the consequence that the party member's personal career will be disrupted if he fails to support the party line.

In a word, yes.  The three bad actors:  congressional seniority, rules-designated power positions, and the rules-sanctioned intrusion of the two political parties into the workings of Congress (in a word, the entire current power structure of Congress) work to disenfranchise most Congressional districts and entire States, while shifting power over Congress from the voters to the unelected leadership of private political parties.

What to do about it?

1. Congressional Seniority
The needed change toward fair and equal representation in the Congress is to do away with the concept of seniority in both the House and the Senate.  The operative concept must be that everyone who is sent to the Congress as a representative of a district or a state has a right to an equal hearing, because every district and state has that innate right.  The fact that a representative has been in the House for twenty years, for example, should mean nothing beyond giving him experience.  He was elected in the most recent election like all other members, and his position in the House should be the same as all other members.  There is absolutely no reason that can be justified under the Constitution for why a district which repeatedly sends the same member back to the Congress should thereby gain greater influence over national law-making than other districts which send a new member.  Doing away with all remnants of seniority favors in Congress will also have the beneficial effect that voters will no longer be faced with the common question about returning an aging member to Congress merely because he or she has enough clout to bring federal dollars back to the district.

2. Congressional power positions
The task of righting the congressional rules that permit this skewed power structure is not an easy one, and without a judicial determination it may be near impossible, since they who have to approve the changes are they who benefit from the present system.  But, nevertheless, this needs to be done in order to assure truly democratic decision-making:  The Speakership and committe chairmanships should be made administrative, not decision-making, positions.  These positions should not have discretion over the calendar or the fate of introduced bills, which should be considered in an evenhanded and unbiased manner.  Speaker- and chairman-ships could rotate frequently by lot among members, or could be handled by impartial staff hired for the purpose.  The key idea is that it is unacceptable that these positions be used to focus power in a member, or to unfairly affect the course of proposed bills.

3. Political parties in Congress
Remove all reference to political parties, incl. "majority" and "minority" (in the sense of party affiliation, e.g. Majority Leader or caucuses) from congressional rules.  References to political affiliation shall be out of order on the floor.  Seating arrangement in the House and Senate should not by party, but by state and/or region, with randomly chosen and rotated locations, independent of seniority and party.

P.S:  And that's not all, folks.

A fourth bad actor which must be cleaned up if we are to have fair representation in Congress is campaign financing.  We'll deal with this in a later essay;  suffice it to say here that our current system, with its multimillion dollar election campaigns with their non-content and format designed for half-wits, is an unconscionable blot on American democracy.  We will not have democratic representation in Washington until we replace this corrupt system with public financing, replacing at the same time the mindless, offensive, and childish TV spot campaign ads with mature and thorough discussion of serious issues by the candidates.  Tune in later, but in the meantime, get acquainted with the web site "Represent.us".