CHAPTER XI
ORGANIZATION AND PROCEDURE OF CONGRESS
Organization of the Two Houses.—Officers.—Each house of Congress is free to organize itself in such a manner as it pleases, and to choose its own officers, except that the Vice President of the United States is, by the Constitution, made the presiding officer of the senate. The presiding officer of the house of representatives is called the speaker; that of the senate, the president. Each house has one or more clerks who keep the journals, call rolls, read bills, and have custody of all bills, resolutions, petitions, and memorials; a sergeant-at-arms who preserves order, has charge of the halls, pays members their salaries, and performs various other duties[31]; a postmaster; a doorkeeper; a chaplain; and other minor officials.
Opening of a New Congress.—When a new Congress assembles, the house of representatives is called to order by the clerk of the preceding house. He then calls the roll of the members whose credentials or certificates of election have been filed with him, and if a quorum is present the house proceeds to the election of a speaker. The members of each political party represented in the house have already in caucus agreed upon their candidates, and they are now put in nomination before the house by some member representing each party. Usually the action of the caucus of the majority party is equivalent to an election, and the house has only to ratify its choice. In several instances, however, the election of the speaker involved long and bitter contests. Thus in 1849, 63 ballots were taken, and again in 1855-1856, 133 ballots were necessary, and in each case a special rule was adopted permitting a plurality to elect.
The senate, on the other hand, is always an organized body. The presiding officer—the Vice President—at the opening of a new Congress calls the senate to order, and the other officers, who hold during the pleasure of the senate, resume their duties. The senate elects one of its own members as president pro tempore to preside over its deliberations during the absence of the Vice President or in case there is no Vice President, as has often happened.
The Oath of Office is usually administered to the speaker by the oldest member in point of service,—called "the Father of the House,"—after which the speaker calls the other members to the front—usually by state delegations—and administers the oath to them. Newly elected senators are escorted to the Vice President's desk, usually each by his state colleague, and are sworn in individually.
Adoption of the Rules.—After the administering of the oaths of office, the house adopts the rules of the preceding Congress for regulating its procedure pending the adoption of new rules. Usually this is a perfunctory performance and is carried through without opposition. At the opening of the sixty-first Congress, however, strong opposition was manifested toward the old rules and they were not readopted until important amendments had been made in them.
After the adoption of the rules each house appoints a committee to notify the other of its readiness for business, and the two then appoint a joint committee to inform the President of the United States that Congress is ready to receive any communication that he may be pleased to make. The message of the President is then laid before each house and the business of Congress proceeds.
Quorum.—The Constitution provides that a majority of each house shall constitute a quorum for the transaction of business, but that a smaller number may compel the attendance of absent members in such manner and under such penalties as each house may prescribe.
Old Method of Counting a Quorum.—For a long time the method of ascertaining whether a quorum was present was by a roll call. If the roll call failed to show the presence of a majority, the speaker ruled that no quorum was present, even though every member of the house was actually in his seat. In the course of time this rule came to be frequently abused by the minority for the purpose of preventing consideration of measures to which it was opposed. Thus in January, 1890, when the Republicans had only a slight majority in the house of representatives, the Democrats were able, owing to the absence of a few Republican members, to break a quorum and prevent consideration of important measures, by refusing to answer to the roll call. On a notable occasion in January, 1890, the roll call showed 161 yeas, 2 nays, and not voting 165, the 165 who refused to vote being Democrats who were opposed to the taking up of a certain measure which the Republicans desired to pass. Under the rules the roll call did not show a quorum present, though more than two thirds of the members were actually in their seats.
The New Method.—The Republican majority therefore adopted a new rule, that members who were actually in their seats were to be counted by the speaker as present, no matter whether they voted or not. The action of Speaker Reed in enforcing this rule raised a storm of protest by the minority, but he courageously stood his ground. The new rule was readopted by the next Congress though the Democrats were then in the majority, and it has been continued ever since with the exception of one or two Congresses when the old rule was reverted to. Much of the business of Congress is really done, however, when there is no quorum present, this being permissible so long as the point of "no quorum" is not raised by any member.
Open Sessions.—The ordinary sessions of both houses are open to the public, though until 1794 the senate held its sessions in secret. When the senate goes into executive session, as it may do when it is considering nominations of the President to public office or is engaged in considering treaties, the galleries are cleared, the doors closed, and its deliberations are conducted in secret, though, the results of its transactions usually leak out in some way.
Seating of Members.—Until 1913 each member of each house was provided with a seat and a desk, but in that year the desks were removed from the house of representatives in order to bring the members nearer together. Prior to that date, seats were assigned to members by lot at the opening of Congress, but the leader of the minority party and one or two other members of long service were usually allowed to select their seats without resort to the lot. The Democrats are seated on the right of the speaker and the Republicans on the left. In the senate, each seat as it becomes vacant is assigned to the member who first makes application for it to the presiding officer. The house chamber is so large that members in the rear seats are at a disadvantage, and speech making is carried on with difficulty. In 1913, however, this inconvenience was diminished by a reduction in the size of the hall by about one third of the floor space.[32] The senate chamber is less spacious, and debate can be conducted with much greater satisfaction and effectiveness. It would be a great advantage if the number of representatives could be reduced to 250 or 300 so as to make the house less unwieldy, but there is little probability that such a reform will ever be effected. If smaller in size, the house could transact its business with more dispatch, give more careful consideration to bills, and allow members a greater opportunity for discussion.
Committees.—Obviously an assembly of more than 400 members cannot legislate effectively as a whole; its work must be done largely by committees. To some committee every measure and every petition is referred, as are also the various recommendations of the President. In the sixty-seventh Congress (1921-1923) there were thirty-four standing committees in the senate and sixty in the house. Usually there are also several select committees, and occasionally a few joint committees. In the senate, the committees vary in size from three to sixteen members; in the house from three to thirty-five.
The most important committees in the senate are those on appropriations, commerce, finance, foreign relations, interstate commerce, judiciary, military affairs, naval affairs, and public expenditures. The least important are those on disposition of useless papers, University of the United States, and Revolutionary claims, since there is little or no business referred to them. The most important committees in the house are those on ways and means, appropriations, banking and currency, public expenditures, foreign affairs, interstate and foreign commerce, judiciary, military affairs, naval affairs, public buildings and grounds, rivers and harbors, and rules (twelve members now, formerly five). The least important is that on the disposition of useless papers.[33]
Method of Choosing Committees.—In the senate committee assignments are nominally made by the senate itself, but in reality they are made by two committees on committees selected by a caucus of the members of each party, the recommendations of the two committees usually being accepted by the senate without debate. Both parties are represented on each committee, the dominant party, of course, being given a majority of the places. Thus on a committee of thirteen members, the majority party is usually represented by eight members and the minority by five; on a committee of seventeen, the numbers are eleven and six respectively, and so on.
In the house of representatives, from the beginning until very recently, all the committees were appointed by the speaker, a power which gave him great influence in shaping and determining the course of legislation, since he might constitute the committees with reference to their friendliness or unfriendliness toward legislative measures that were referred to them for investigation and report. In making committee assignments, however, the speaker was not entirely free to follow his own individual preferences. Thus the tradition of the house required that he must take into consideration the claims of members whose service had been long and distinguished, while political gratitude led him to reward with desirable committee assignments those to whom he was especially indebted for his election as speaker. Seniority of committee service was also taken into account when the chairmanship of an important committee became vacant, the next ranking member of the committee having a strong claim to be promoted to the vacancy. In 1911, however, the house, then controlled by the Democrats, adopted a rule providing for the election of all standing committees by the house; thus making the method of choosing committees the same as in the senate.
In the house, the chairmanship of every committee, whether important or unimportant, is given to a member of the dominant party, and of course also a majority of the other places on the committee, the proportion between the representation of the two parties being about the same as on the senate committees.
Introduction and Reference of Bills.—After the appointment of the committees the house is ready for the transaction of legislative business. Bills are introduced by sending them, indorsed with the name of the introducer, to the presiding officer's desk, where the fact of presentation is entered on the journal and the bill is given a number.[34] Thus the first bill introduced at the beginning of a new Congress is designated as "S. 1," if presented in the senate, and "H. R. 1," if presented in the house of representatives.
Reference to Committees.—The next step is to refer the bill to a committee for consideration, and in the meantime it is printed and placed on the desks of members. Reference to the appropriate committee is usually made by the presiding officer, though the house may direct that it shall be referred to a particular committee.
Some idea of the mass of legislative projects referred to the committees may be gained from the fact that in the sixtieth Congress 27,114 bills and resolutions were introduced into the two houses, and that of these, 7,839 were reported by the committees to which they were referred. We have here a good illustration of the necessity of the committee system, since it would have been a physical impossibility for either house as a whole to have considered even slightly so many bills. The committees sift out of the mass of proposed legislation such measures as they think worthy of enacting into law, and report their recommendations to the house as a whole.
Committee Hearings.—Committees charged with the consideration of important bills frequently hold public hearings at which interested parties may appear and present arguments for and against the measures under consideration. Thus the ways and means committee of the house in 1909 held public hearings at Washington for many weeks on the tariff bill, and scores of persons appeared to advocate lower or higher rates on various articles on which duties were to be imposed. Frequently members who introduce bills appear before committees and urge favorable action. The more important committees in each house have a regular day in each week for meeting, and a few of those in the house of representatives meet twice a week. Most of the committees, however, have no regular meeting day, being called together by their chairmen as occasion requires.
Forms of Committee Action.—The committee to which a bill is referred may pursue any one of the following courses: (1) It may report the bill back to the house with a recommendation that it be passed; (2) it may amend the bill and recommend that it be passed as amended; (3) it may throw the bill aside and report an entirely new one in its place; (4) it may report the bill unfavorably with a recommendation that it do not pass; (5) it may "pigeonhole" the bill, that is, take no action on it at all, or report it so late in the session that no opportunity is allowed for its consideration. The latter method of disposal, sometimes called "smothering," is the fate that awaits the great majority of bills introduced into Congress. The "smothering" of bills became the subject of so much complaint among members recently that the rules were amended so as to allow members to demand that their bills be reported to the house for consideration. The house, of course, may at any time instruct a committee to report a bill for its action, but this is rarely done.
The report to the house is usually made by the chairman of the committee, or some one designated by him. Not infrequently the minority members of the committee also make a report opposing the recommendation of the majority. The committee system of legislation is so thoroughly established in Congress that a bill favorably reported stands an excellent chance of being passed, while one adversely reported hardly ever passes.
Rules of Procedure.—The Constitution provides that each house may frame its own rules of procedure, though it requires certain things to be done in the interest of publicity and to insure a reasonable degree of careful deliberation. Thus each house is required to keep and publish a journal which must show how motions are disposed of and the vote for and against measures voted on. It also requires that on demand of one fifth of the members present the yeas and nays upon a measure shall be entered upon the journal. The purpose of this provision is to enable a small number of members to put the house on record so that the people may know how their representatives have voted on important measures.
Filibustering.—This requirement serves a useful purpose, but it is sometimes taken advantage of by the minority in "filibustering," that is, in obstructing and delaying legislative proceedings. Thus a member may move to adjourn or to take a recess and ask that the roll be called and the yeas and nays on the question be entered upon the journal. If one fifth of the members join in the demand, the roll must be called and the process may be repeated indefinitely. On one occasion in the fiftieth Congress the house remained in session eight days and nights, during which time there were over one hundred roll calls on motions of this kind.
The Rules of the House of Representatives have evolved gradually out of the experience of the house during its long existence, and have come to be so complex and elaborate that they are really understood by only a few of the members, principally those who have had long experience in administering them. They have been revised from time to time, but except in a few particulars they are essentially what they were in 1880. They prescribe a certain order of business for each day's work, which, however, may be departed from by unanimous consent of all the members or by the adoption of a "special order" reported by the committee on rules.
Committee of the Whole.—Revenue and appropriation bills are considered by the house of representatives in committee of the whole. When the house goes into committee of the whole, the speaker leaves the chair and calls some one else to preside in his place, and the presence of 100 members constitutes a quorum. Debate in committee of the whole is conducted rather informally, and greater freedom of discussion is allowed. It is when in committee of the whole that many of the lengthy speeches printed in the Congressional Record are supposed to be delivered. In reality, however, only a small portion of these speeches are actually delivered, for members after addressing the house a few minutes often secure leave to print the remainder of their remarks. Under this leave, members frequently print long speeches which have little or no relation to the subject under consideration but are intended for campaign purposes or for effect upon their constituents. They are then franked through the mails to the voters throughout the district which the member represents.
If the bill is a private bill, it is called up for consideration on Friday, which is private bill day. Most of the private bills are reported from the committees on claims and on pensions. Six or seven thousand such bills are passed by each Congress, and they constitute about nine tenths of the entire number enacted.
Suspension of the Rules.—The regular order of business may be departed from at any time on the demand of privileged committees like those on ways and means, appropriations, elections, rules, and a few others which have a sort of right of way in the house, because of the urgent character of the matters with which they deal. Furthermore, by unanimous consent, often granted, a particular member is allowed to bring up a bill for consideration outside the regular order. Finally, on two Mondays in every month and during the last six days of the session, the rules may be suspended by a two-thirds vote and measures to which there is little objection may be quickly passed and thus the business of the house expedited.
The Speaker and the Committee on Rules.—No discussion of the procedure of the house of representatives would be adequate without a consideration of the part played by the speaker and the committee on rules in determining the course and character of legislation.
The English Speaker.—The speakership is an ancient office inherited from England, where it originated in the fourteenth century, and is an outgrowth of the practical necessities of legislative procedure. The American speakership, however, differs widely from its English prototype. The speaker of the House of Commons has no such power in shaping legislation and controlling debate as does the American speaker. He is in fact little more than a moderator with power to put motions, state questions, and preserve order and decorum in debate. He is entirely impartial, with no party prejudices.
Powers of the American Speaker.—The American speaker, on the contrary, is not merely the presiding officer of the house, but he is an active party leader who seldom hesitates to give members of his own party every possible advantage in the course of debate. His right to appoint the committees of the house until 1911 gave him increased power over the shaping of legislation, because of the fact that the legislation of the house has come to be legislation largely by its committees. As has already been said, he gave the members of his own party all the chairmanships of committees, as well as a majority of the places on every committee, so that they easily controlled the work of the committees and hence of the house itself.
Recognition.—Moreover, his power of recognition, especially before 1910, that is, the power to grant or withhold the right of discussion, enabled him to a large degree to prevent consideration of measures to which he was opposed and to cut off debate by members of the minority party, joined with the Democrats and brought about several amendments to the rules, one of which is designed to do away with the chief source of complaint in regard to the power of recognition.
Committee on Rules.—Still another source of the speaker's power until 1910 was his control of the committee on rules. The committee consisted of five members, two from the majority, two from the minority, and the speaker, who was the fifth member. The speaker appointed his four associates on the committee and thereby controlled its decisions. If he wished at any time to have the house take up a bill at the bottom of the calendar instead of one at the top, or in any other respect depart from the established order of procedure, he could call the committee together (it was the one committee that had the right to meet when the house was in session) and have it report what was called a "special order," to that effect—an order which the house usually adopted. The opposition to the power of this committee and more especially to its domination by the speaker led in 1910 to the adoption of a rule depriving the speaker of membership on the committee, increasing its size from five to eleven, and taking the appointment of the committee out of his hands. Since then it has been elected by the house, and is, it is asserted, a more representative committee.
Caucus Methods.—It is a common practice for the representatives of each party to hold a caucus before the beginning of the debate upon an important measure, especially one of a political character, for the purpose of deciding what shall be the policy of the party toward the measure. Sometimes a rule is adopted by the caucus binding the members of the party to vote for or against the bill on the floor. Thus in 1913 caucuses of Democratic and representatives declared the tariff and currency bills to be party measures and pledged the members to vote for the bills without amendment. This practice has been criticized on the ground that where members have bound themselves to vote for a bill before it has been discussed on the floor, debate is useless since their minds are no longer open to argument. Perhaps a better procedure would be to hold the caucus after the discussion has terminated but before the final vote is taken.
Final Stages of Procedure.—The rules of the house of representatives restrict the time which may be occupied by any member in debating a measure to one hour, and this cannot be exceeded except by unanimous consent. If he chooses, he may yield a portion of his time to some other member. The chairman who reports the bill usually opens the discussion. He is followed by the ranking member of the minority on the committee, and these are followed by other members of the committee in their turn.
The Previous Question.—After the discussion has proceeded for a time, debate may be terminated and the house brought to a vote by means of the previous question, which is moved in the form, "Shall the main question now be put?" When ordered by the house it ends debate and brings the house directly to a vote. This is an effective method for putting an end to useless discussion of a measure and taking the sense of the house on its passage. It is a common form of procedure in legislative bodies, though the senate, until 1917, had no way of limiting debate.
Voting on Bills.—Questions on the passage of bills are put by the speaker as follows: "As many as are in favor say aye"; "As many as are opposed say no"; the speaker determining the result by the sound of the voices. If there is a doubt as to which side has prevailed, a "division" is called for, in which case those in favor rise and are counted after which those who are opposed rise and are counted. If there is still doubt as to the result, "tellers" may be appointed to determine the vote, in which case those in favor of the measure file between the two tellers, who make a careful count, after which those opposed pass between them and are similarly counted. If one fifth of the members demand that a yea and nay vote be taken, the clerk must call the roll and record each member's vote, and the result is published in the journal so that the way in which a member votes may be known to his constituents and all others who may be interested.
Passage by the Second House.—When a bill is passed by one house, it is signed by the presiding officer, after which it is transmitted to the other house, where it goes through practically the same stages of procedure as described above. If the bill is passed by the other house without amendment it is "enrolled," after which it is ready for the signature of the President. If, however, a bill as passed by one house is amended by the other, it is customary to appoint a conference committee, consisting usually of three members from each house, to discuss the differences and suggest a basis of compromise. The committee usually recommends that each house recede from its position on certain points, and the result is reported to each house, which usually accepts the agreement and the bill is passed. Many important bills are finally passed in this way, though occasionally the two houses fail to reach an agreement and the bill fails.
Approval of the President.—When the bill is presented to the President he is allowed ten days to make up his mind as to whether he will sign or disapprove it. If he refuses to sign it, he usually returns it to the house in which it originated, with a statement of his objections, after which the house must proceed to reconsider it, and if it is passed by a two-thirds vote it is sent to the other chamber and if repassed by it by a two-thirds vote it becomes a law notwithstanding the veto of the President. But in such cases the yeas and nays must be entered on the journal of each house so that the record may show that the bill was properly passed. In case the President does not approve the bill and neglects to return it within ten days to the house in which it originated, it becomes law in the same manner as if he had signed it, unless Congress should adjourn in the meantime so that it cannot be returned, in which case it does not become law. As a large number of bills are usually sent to the President during the last ten days of the session, an opportunity is thus afforded him for defeating bills by neither signing nor vetoing them. This method of defeating bills is popularly described by the term "pocket veto," a procedure sometimes resorted to where the President does not approve a bill and yet does not wish to take the responsibility for positively vetoing it.
Procedure in the Senate.—In the senate, partly by reason of its small size, partly by reason of its permanence, and partly by reason of the tradition of senatorial courtesy, the procedure is somewhat different from that of the house of representatives. For example, the senate rules are permanent, that is, they continue from one Congress to another and do not have to be adopted anew every two years.
The President of the Senate is little more than a moderator; indeed, he may belong to a different political party from that which is in control of the chamber—a situation that never happens in the house. He does not appoint the committees of the senate, and so has no power of predetermining the character of legislation. Moreover, he has no power to control debate through the power of recognition. The traditions of the senate require that he shall recognize the first senator who rises to speak, and that he shall treat the members of both parties impartially in according recognition for purposes of debate.
Unlimited Debate.—Until 1917 one of the usages of the senate was the right of unlimited debate. Owing to the small size of the senate, much greater freedom of discussion is possible than in the house of representatives, where there are more than four times as many members. Debate can also be conducted with much more ease and is much more effective, since the size of the hall is smaller and members are not under the necessity of speaking at the top of their voices. While a member of the house can rarely get an opportunity to deliver a speech and then only for a few minutes, a senator may usually speak as long as he pleases. Advantage of this privilege is frequently taken by senators to deliver long speeches, not so much to convince their colleagues, as to get their views before the country at large or to make an impression on their constituents at home. Under the rules as they were before 1917, there was no limit to a senator's right to debate. The privilege was made use of occasionally near the close of a session for "filibustering" purposes. Thus a few senators with strong lungs, large vocabularies, and a liberal supply of documents from which to read, might consume the time of the senate for weeks and prevent it from acting on measures to which they were opposed. Many times in our history a single senator has forced the senate to abandon the consideration of important measures, by threatening to consume the remaining time of the session by speech making. In the last days of one session of Congress, a senator from Wisconsin spoke continuously for more than seventeen hours in an effort to prevent action on a currency bill. Near the end of the 64th Congress (March, 1917) a small group of senators filibustered to prevent the senate from taking a vote on a bill to give the President authority to arm American merchant vessels for defensive purposes, notwithstanding the fact that nearly all the other senators desired to pass the bill. Shortly thereafter the senate adopted a new rule which makes it possible, by a two-thirds vote, to limit the debate on any measure to one hour for each senator. The rule was applied in November, 1919, to bring to an end protracted discussion of the treaty of peace with Germany.
References.—Beard, American Government and Politics, ch. xiv. Bryce, The American Commonwealth (abridged edition), chs. xiii-xv. Hart, Actual Government, ch. xiv. Harrison, This Country of Ours, ch. iii. Reinsch, American Legislatures and Legislative Methods, ch. i.
Documentary and Illustrative Material.—1. The Congressional Directory. 2. The House and Senate Rules. 3. Precedents of the House of Representatives, published as a public document in 1909. 4. The Congressional Record. 5. Specimen copies of bills and resolutions. 6. The last annual message of the President. 7. Copies of committee reports. 8. Veto messages of the President. 9. Diagrams of the house and senate chambers.
Research Questions
1. Why are rules of procedure necessary in legislative bodies?
2. For what purpose does the Constitution require each house to keep a journal of its proceedings?
3. Which do you think the better practice, the American rule, by which each house of Congress settles election contests of its own members, or the English rule, which places that power in the hands of the courts?
4. What is the reason for allowing a small number of members of each house to compel the attendance of absent members?
5. Under what conditions may each house punish outsiders?
6. What is your opinion of the English rule which allows forty members out of a total of six hundred and seventy members to constitute a quorum?
7. Why should senators and representatives be privileged from arrest for any but serious offenses?
8. What are the principal differences between the rules of procedure of the senate and the house of representatives?
9. Do you think it would be a wise provision to permit the members of the cabinet to occupy seats in Congress without the right to vote?
10. Trace a bill through Congress, showing the various stages through which it must pass before becoming a law.
11. Of what committees is your representative a member? Is he chairman of any committee?
12. Do you think the minority party should be given a larger representation on the committees of Congress and larger privileges of debate?
13. Give the names of the five most distinguished speakers of the house of representatives since 1789.
14. Why is debate more effective in the senate than in the house of representatives?
15. Which of the two houses exerts the greater influence in determining national legislation? Give your reasons.
16. What are some of the so-called "usurped" powers now exercised by the senate?