Government in the United States, National, State and Local

by James Wilford Garner

Rights and Privileges of Members of Congress.—The Constitution provides that members shall not be arrested in any case except treason, felony, and breach of the peace, during their attendance at the sessions of their respective houses and in going to and from the same; and for any speech or debate in either house, they cannot be questioned in any other place. The purpose of the first provision is to prevent interference with members in the discharge of their high and responsible duties, through arrest for trivial offenses or trumped-up charges. If a member, however, commits an offense amounting to a breach of the peace, his immunity from arrest ceases and he may be dealt with by the courts as any other offender. The object of the second provision is to secure to members absolute freedom of speech on the floor of Congress by relieving them from the liability to prosecution for slander for anything they may say in the course of debate.

Disqualifications.—On the other hand, the Constitution provides that no person holding any office under the United States shall be a member of either house of Congress during his continuance in office. This provision was adopted in pursuance of the view that the executive and legislative departments should, as far as practicable, be kept separate. Moreover, no senator or representative may, during the time for which he is elected, be appointed to any civil office which shall have been created or the emoluments of which shall have been increased during such time. The purpose of this provision is to prevent Congress from creating new offices or increasing the salaries of existing offices for the benefit of members who might desire to be appointed to them.

Special Functions of the Senate.—The senate is not only a coequal branch of the national legislature but it possesses in addition certain powers not enjoyed by the lower house.

Share in the Appointing Power.—First of all, it shares with the President the power of appointment to federal offices. The Constitution makes its approval necessary to the validity of all appointments made by the executive, the idea being that the participation of the senate would serve as a restraint upon the errors or abuses of the President and thus insure the appointment of honest and capable men to office. But it was never intended to give the senate anything more than the negative power of rejecting the nominations of the President. It is his power to nominate and that of the senate to approve or disapprove the nomination. Nevertheless, there has grown up in the senate a practice by which the senators from a particular state in which an appointment to a federal office is to be made, claim the right to select the appointee themselves and when they have agreed upon him to present his name to the President for appointment; provided, of course, that they are of the same party as the President. If the President refuses to comply with the request of the senators from a particular state, and nominates an official who is unacceptable to them, the custom of "senatorial courtesy," which has become one of the traditions of the senate, requires that the senators from the other states shall stand by their associates in question and reject the nomination of the President. In this way the senate has, in effect, assumed the power of dictating to the President appointments to many federal offices in the states, such as those of postmaster, federal judge, attorney, revenue collector, and the like. If the two senators from a state belong to different political parties, the one with whom the President is in political sympathy controls the federal patronage in the state.

Share in the Treaty-Making Power.—The senate also shares with the President the power of making treaties with foreign countries. The ordinary procedure is for the President, through the Department of State, to negotiate the treaty, after which it is laid before the senate for its approval. Approval by a two-thirds vote of the senators is necessary to the validity of the treaty. The purpose of giving the senate a share in the treaty-making power was to provide a check or restraint upon the possible abuses or errors of the executive. The extraordinary majority required for the approval of the treaty, however, has frequently proved a handicap and led to the defeat of a number of valuable treaties. Thus a small political minority can prevent the ratification of a treaty and sometimes does so when it sees an opportunity to reap political advantage thereby.

The Constitution speaks of the "advice and consent" of the senate, but in practice all the senate does is to give its consent. In the early days, however, the President not infrequently requested the "advice" of the senate before starting the negotiation of a treaty, and if the advice was unfavorable the proposed negotiations were abandoned. Even now if the President has doubts as to whether a proposed treaty would receive the approval of two thirds of the senate he will sometimes consult with the members of the senate committee on foreign relations and with other influential members, before beginning the negotiations.

The senate may reject a treaty in toto, and has done so in many instances, or it may amend a treaty laid before it, in which case it must be sent back to the government of the other country which is a party thereto for concurrence in the amendments. After the senate has consented to the ratification of a treaty, the President may ratify it or not as he likes.

Library of Congress, Washington, D.C.