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Why did Locke advocate for a citizen legislature? According to Locke, does the legislature have the right to transfer the power conferred to them to others? What does our Constitution require to ensure the population is appropriately represented?. Questions for Locke.

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questions for locke

Why did Locke advocate for a citizen legislature?

According to Locke, does the legislature have the right to transfer the power conferred to them to others?

What does our Constitution require to ensure the population is appropriately represented?

Questions for Locke
john locke

Architect of our Constitution

  • 134 consent of the governed: legitimacy – a sovereign which is given the power to make and enforce laws through the consent of the public.
  • 135 no arbitrary power – the rule of law is key
    • Life, liberty, or possession (property)
    • Power “limited to the public good of the society” (general welfare)
John Locke

Section 138 Read and review this section carefully. Understand that it was Locke’s intent that legislators would be subject to the rules they made when they returned to civilian life and would be conscious to prevent the legislature from arbitrarily applying laws. What does this say about lawmakers who become lobbyists after passing legislation favorable to industry? Billy Tauzin (Chairman, House Energy and Commerce Committee), Tommy Thompson, (Secretary of the Department of Health and Human Services), Thomas A Scully (Administrator of Medicare).


140 Governments need to take in revenues. Any collection of taxes will advantage some more than others. Best form of taxation is that which harms society the least. (Progressive vs regressive)

141 legislative cannot transfer power. Executive orders and use of force

143 separation of legislative and executive power and the rationale behind it. Power to make laws and power to execute the laws.

“And because it may be too great a temptation to human frailty, apt to grasp at power, for the same persons, who have the power of making laws, to have also in their hands the power to execute them, whereby they may exempt themselves from obedience to the laws they make, and suit the law, both in its making, and execution, to their own private advantage,”

“which when they have done, being separated again, they are themselves subject to the laws they have made; which is a new and near tie upon them, to take care, that they make them for the public good.”


153 allows for impeachment “punish for any maladministration of the laws”

  • Saluspopulisupremalex – the welfare of the people is the supreme law. “provide for the general welfare”
  • 157 and 158 calls for a census “the number of members, in all places that have a right to be distinctly represented” echoed in the Constitution.
    • Politicians scaring people to keep them from answering the census

Current gridlock: House of Representatives controlled by the Republican Party with John Boehner following the Hastert rule (not bringing anything to a vote unless a majority of Republicans will vote for it). Republican Caucus is split with Tea Party refusing to vote on things like budget compromises, funding for food stamps, or raising the debt ceiling. Result: no votes on mainstream, important issues like budgets or jobs programs that they could get passed with Democrats. Only the most extreme right-wing bills get passed which the Senate doesn’t waste time on.

When Dems had the House, Senate Republicans filibustered everything.

Good Riddance to Rottenest Congress in History‘

112th Congress: 242 Reps 193 Dems at least 50 Reps are Tea Party candidates

Tea Party Republicans threatening to shut down the government unless Obamacare is repealed. “Hostage worth taking”.

Book suggests that the jury is still out on Boehner’s Speakership. After the Farm Bill failed to pass, most commentators agreed Boehner has been ineffective.

bicameral vs unicameral

Bicameral advantages:

    • More careful consideration of legislation (more eyes, two committees)
    • Small and large states satisfied
    • Lobbying becomes more costly and difficult
  • Unicameral advantages:
    • Simplified bill passage
    • Greater scrutiny of the legislation, more transparent, less opportunities for blatant conflicts of interest
    • Easier to cooperate with executive
    • Greater efficiency
    • Greater responsibility and accountability of legislators, the public knows who to blame.
Bicameral vs unicameral
bill process

Note: Laws can start in either houses of Congress, but laws involving fiscal issues are supposed to start in the House.

Once the law is passed it is handed off to the appropriate agency for implementation. (see chapter on bureaucracy)

Bill process
congress under the constitution

The textbook states that the “Framers expected that House members would be more responsible to the people”, in part because “they would be up for reelection every two years.” The political theory behind this comes from John Locke. Legislators who may soon find themselves to be returned to civilian life would be less likely to allow the government to establish arbitrary powers that they soon will be exposed to.

By having senators selected directly by legislatures, these senators would be held responsible by the state governments.

Congress under the Constitution

“No bill, or proposed law, can become law without the consent of both houses.”

Congress legislates – formal powers to make laws

Presidents issue executive orders IE elimination of the Fairness Doctrine, desegregation of the military

Bureaucrats develop policies to deal with issues in the implementation of laws passed by Congress. This is known as administrative law. A variation of the “necessary and proper” clause.

Courts render opinions, interpret laws, judicial review

vote by proxy

A proxy is the right of an individual to vote on behalf of another. Our representatives have the right to vote for us by proxy on issues whether we personally voted for them or not. We voted for who would represent us and the person for whom the majority voted for receives this right of proxy.

While 435 representatives or 100 senators may seem like a minority, they actually have this right of proxy to represent a majority.

If you vote in Whatcom County, your proxy vote is in the hands of Congressman Rick Larsen and Senators Patty Murray and Maria Cantwell, whether you voted for them or not.

Vote by proxy
veto points

The only official with a constitutional power to “veto” a bill is the President.

However, the process of passing and implementing legislation has changed over time to where multiple “metaphorical” veto points now exist.

These veto points are points where a single individual or a small minority can prevent a bill from being passed, implemented, or enforced.

The defeat of legislation by a majority (50% + 1) is not a veto point, it is democracy in action. IE 235 of 435 members of the House vote against a bill. This is not a veto point, this is representative democracy.

Simplest veto point is to simply keep an issue off the agenda. After mass shootings, the NRA shuts down debate by saying that now is not the time to politicize the issue.

Veto points
legislative branch

House of Representatives (lower house)

    • Originally one for every 35,000
    • Population of 311,591,917 = 8902 representatives
    • 435 members so power is more diluted
    • 2 year terms – every two years every member is up for election
    • Longevity here is more difficult to achieve
    • Large turnovers here are more common. In 1932 Republicans lost 97 seats in the House. Year Hoover lost.
    • Closer to the people
  • Senate (upper house)
    • 100 members: power is more concentrated
    • 6 year terms with 1/3 of the seats coming up every two years
    • Senators tend to be more long term
    • Large turnovers are rare. Any election there are usually only around 10 seats in play. Major changes in the Senate are a party gaining/losing 13 seats in the election. Most years have 5 seats or less changing hands.
    • Political elite – Gentleman’s club
Legislative branch
  • California – 37.3 million
  • 53 Representatives
  • 2 senators
  • Alaska, Montana, North Dakota, South Dakota, Vermont ,Wyoming, Hawaii, Idaho, Maine, New Hampshire, Rhode Island, Nebraska, Nevada, New Mexico, Utah, West Virginia, Arkansas, Kansas, Mississippi, Connecticut, Iowa – 37.7 million
  • 53 Representatives
  • 42 Senators (enough to mount a filibuster)
committee process

Both houses have committees and subcommittees tasked with arguing and amending a bill to get past the big disagreements. This is a time saving device and a division of labor. In theory, the committee does not report a bill to the floor until enough committee members are willing to provide a yes vote for the legislation. In this manner, floor time is taken up with legislation that is more likely to be passed.

Chairmen of both committees and subcommittees have extraordinary power here in setting the agenda for what bills will receive a hearing and which ones will not. If two competing bills are pending in the committee (for example: one that offers stricter regulation of capital markets vs one that further deregulates the markets) the chairman will move up the bill that he prefers on the calendar while the bill he does not favor is pushed down the line, effectively killing it (veto point). In the 111th Congress 10,000 bills introduced, fewer than 5% (500) became law.

Committee process

A chairman of a committee is a member of the majority party who usually has a great deal of seniority in their respective house. The ranking member is the person who would be the chairman of the committee if their party were in the majority.

An example of this is the Senate Judiciary Committee in which Democratic Senator Patrick Leahy has traded off the position of Chairman with Republican Senators Orrin Hatch and Arlen Specter since 1995. When the Democratic Party was in the majority, Leahy was the Chairman, and when Democrats were in the minority, Leahy was the ranking member.


A process through which a bill is amended, changed, or even substituted with competing legislation prior to reporting the legislation out of committee. The committee can also reject the bill outright in a markup session. Markup is not necessarily a veto point. It is a procedure through which veto points can be applied.


Standing committee – Can be thought of as a “normal” committee. This is where the individual houses discuss and debate routine business in front of the committee.

Joint committee – This is similar to a standing committee in that the committees are more permanent and deal with routine business, but its members come from both houses (joint).

Conference committees – These committees are temporary and exist solely to iron out differences if the House and Senate pass different versions of the same bill.

Select (or special) committees – also temporary and set up to meet a specific purpose. They are usually investigative in nature and will cease to exist once they have reported their findings. Watergate Hearings(Select Committee on Presidential Campaign Activities), Warren Commission (United States House Select Committee on Assassinations)

house of representatives

Speaker: John Boehner

House of representatives

Nancy Pelosi - the only woman to hold the position of Speaker of the House

Eric Cantor

the house

The House has a speaker with extraordinary power over the agenda. The Speaker has more power over the lower house than the Majority Leader has over the Senate. The Senate tends to be more powerful as a body, but in terms of individual power, the Speaker could exercise more power than the President.

Only the House has a Committee on Rules. With 435 members, this is a time saving device to prevent long winded debates to allow for consideration of more legislation. The members of this committee are appointed by the Speaker and determine when a bill will be debated on the floor and the rules that will be applied to debate. A closed rule means an up or down vote with no chance of amendment. This committee is predominantly filled with members of the majority party and can further help or obstruct legislation in accordance to the committees decisions. The current Committee on Rules is made up of 9 Republicans (70%) and 4 Democrats even though they only have 54% of the seats in the House and Republicans received 1.4 million fewer votes than Democrats in the 2012 election .

The House
the house1

A discharge petition is the opposite of a veto point. If a chairman is sitting on a bill in committee that a majority wants to have debated and voted on on the floor, those members that advocate progress on the bill can sign a discharge petition which forces the chairman to report the bill out of committee. This was used in the Bipartisan Campaign Reform Act (commonly referred to as McCain-Feingold). Parts of which were later struck down by Citizen’s United v. FEC.

A discharge petition is made necessary in the House as an important bill can be held up in both the originating committee, but also the Committee on Rules. (A much more political committee) The Civil Rights Act of 1964 was being held up by the Chairman of the Rules Committee, but the threat of a discharge petition moved it to the floor.

The House
the senate
The senate

Majority Leader - Harry Reid

Minority Leader – Mitch McConnell

the senate1

Does not have a Rules Committee, but the Senate Majority Leader controls the agenda. With no Rules Committee, there is no limit on debate.

Debate continues on a bill until 60 members of the Senate vote for cloture (think closure) and debate is discontinued and a vote can be taken (the process of cloture can take 4-5 days to implement).

If 40 Senators resist cloture, the bill is said to be “filibustered”, meaning that debate is not closed and a vote cannot be taken.

This supermajority requirement for cloture has, in recent years, become a veto point that defeats the 50% + 1 majority rule. It remains in place as a protection for the minority party. 41 Senators can represent as little as 12.3% of the population.

Without cloture, debate continues until the majority leader withdraws the bill and moves on to other business. While a filibuster is in process, no other business can be moved forward in the Senate.

Reconciliation is a method that can get around a filibuster for issues related to the budget because reconciliation issues are limited to 20 hours of debate.

The senate
the senate2

Senatorial hold: Can be a one man filibuster that can be defeated by a cloture vote. The hold simply provides an obstacle and delaying tactic to the process. Informed of a hold, the majority leader must determine whether the legislation is important enough to hold up other priorities. While a hold is easily circumvented, it is time consuming and will be enough to prevent more important legislation from making it to the floor. Senatorial holds provide a problem for routine procedural questions that are typically passed by unanimous consent.

The senate
the senate3

The Senate alone offer “advice and consent” to the President when considering political appointments and treaties. Remember, when the Senate was first formed it was looking out for the interests of the states. The political elite of the Senate were seen as being more knowledgeable on these issues and the more appropriate venue less subject to the whims of the moment or a temporary majority.

In recent years, as the parties have become more polarized, the Senate has seen a more frequent use of the filibuster to check the President’s ability to shape the bureaucracy and the judiciary. The ability to use this tactic has always existed, it is the willingness of the minority to use it that has increased. A president seeking reforms is prevented from appointing those who would implement those reforms by a minority.

Example: Elizabeth Warren and the Consumer financial Protection Bureau.

The senate
think about incumbency

There is a learning curve with any job. Would a higher rate of turnover provide more Congressmen that are still learning the ropes?

Lobbyists are only too happy to take a freshman Congressman under their wing and help them out with complicated issues like writing bills.

While most Americans are dissatisfied with Congress, they often approve of the actions of their own Congressmen.

Often Congressmen get elected by running against the institution, suggesting that Congress is an evil institution, but they will clean it up for us.

Minority parties will often push for throwing out incumbents. If you are in the minority and every incumbent loses, it would follow that you would then be in the majority. Safe seats also play a role in the call for the elimination of incumbents.

Think about incumbency

The state of Washachusinia is 51% Democrat and 49% Republican. In randomly drawn districts, the state would likely have its 10 seats in the House going to 5 Democrats and 5 Republicans. This does not sit well with the Democratic majority in the state legislature. The state legislature could redraw the districts so that each district will be 51% Democrat and 49% Republican and potentially win all of the seats. It is more likely they will redraw the districts to dump most of the Republicans in one or two districts, giving the Dems an 8-2 or 7-3 advantage.

  • Republican legislatures use this tactic with high frequency.

Diagram: 36 (56.25%)green party, 28 (43.75%) purple party

  • Move by Republicans to elect President based on congressional districts.
  • Facts:
    • Dems had 50.5% of votes in House. Reps had 49.5%. How districts are drawn gave Reps 53.7% of seats and a majority
    • Obama received 51% of the popular vote to Romney’s 47%. If Congressional district plan had been in place nationwide, Romney would have won electoral college 273-262. If only Republican states switch allocation of electoral college votes, the gap would be even greater.

Bear in mind suspect classifications (groups who have been discriminated against in the past) and strict scrutiny (more careful review of legislation involving the rights of suspect classifications). According to Section 5 of the Voting Rights Act of 1965, enumerated districts with a history of disenfranchising suspect classifications must have changes to their voting laws approved by the Dept. of Justice prior to enacting these laws. The current SCOTUS found Section 5 to be unconstitutional.

Democrats believe we will see a sudden surge in legislation aimed at disenfranchising specific demographic groups: minorities, the poor, students, and the elderly, all of whom are more inclined to vote Democratic.

The book talks about the House as being the “people’s house” as it should be more representative of what the people actually want. Gerrymandering makes it less reflective of the will of the people.

proposals for legislation

“Can come from the president, executive agencies, committee staffs, interest groups, or even private individuals.”

Can only be formally submitted by members of Congress.

111th Congress: 10,000 bills submitted, only 5% made it into law. Unusually prolific House. Held up by Senate filibusters.

Proposals for legislation
187 191

Understand how a bill becomes a law and the hundreds of potential veto points that exist.

Chairmen of committees, chairmen of subcommittees, staff members who advise these Congressmen, and positions of leadership can all place a stop on legislation.

To defeat a bill, opponents can add an amendment that makes it intolerable for proponents. This could find Congressmen voting against the bill that they originally introduced. “wrecking amendment” or “poison pill”.

4 responses to a bill by the president

Sign the bill – becomes law

  • President waits 10 days – becomes law
  • President vetoes bill – does not become law
    • Congress overrides the veto 2/3s each chamber – becomes law: Defense of Marriage Act (DOMA) had the votes, Clinton did not veto
  • President waits ten days and if the Congress is not in session the unsigned legislation receives a “pocket veto” and has to go through the entire bill process again. Particularly useful in a “lame duck” session.
4 responses to a bill by the President
budgetary function

In the late 19th century, government revenues were predominantly in the form of tariffs.

    • Found favor with monopolistic industries as it reduced competition.
    • Provided revenue surpluses that could then be turned to providing political favors for supporters in the way of jobs and government contracts.
    • This was a regressive form of taxation that failed to gain support for a countervailing power.
    • This period was one of high levels of government corruption.
Budgetary function
16 th amendment

The book states that growing bureaucracy and regulation required a more centralized and streamlined process. The 16th Amendment was ratified in 1913 taking revenue generation from a regressive form of taxation that produced surpluses to a progressive form that would require tough political decisions.

Income Tax Act of 1894 had been declared unconstitutional (5-4) in Pollock v. Farmers’ Loan & Trust Co. (1895)

The kind of spending that had been possible under the surpluses of tariff revenues now required higher levels of income tax revenues, increased borrowing by the treasury, or decreased levels of spending. Leaving this to the multiple interest groups influencing Congress makes the usual sausage mill of legislation impractical to produce a budget in a timely manner. President now plays a larger role in proposing a budget.

16th Amendment
presidential influence of the budget

Budget and Accounting Act of 1921

    • Office of Management and Budget (OMB)
  • Congressional Budget Act of 1974
    • Congressional Budget Office (CBO)
    • Reconciliation – limits the Senate to 20 hours of debate circumventing the possibility of a filibuster. The book mentions that the health care reform bill was passed through reconciliation. It should be noted that the Bush tax cuts were also passed through reconciliation. There were also revenue bills passed nearly every year of the Reagan and George HW Bush administrations through reconciliation. It is common.
Presidential influence of the budget
earmarks now called programmatic requests

“In 2010, House Republicans tried to impose a moratorium on earmarks.”

Republicans controlled both Houses from 1995-2006.

Do Republicans seem to be the party opposed to earmarks?

Earmarks (now called programmatic requests)
oversight function

Bureaucracy interprets laws and implements those legislative decisions.

Bureaucrats who disagree with the legislation can avoid implementation. IE regulators who disagree with regulations can turn a blind eye to those regulations. The National Institutes of Health have never enforced the reasonable pricing provision of the Bayh-Dole Act on pharmaceutical companies.

Congress holds the purse strings to these agencies and can withhold funding for agencies that they see as not doing their job or overreaching.

The current Congress can cut funding to an agency that is implementing laws put in place by a previous Congress. Funding or its removal is a way of changing or repealing a law without necessarily repealing the law. IE unable to repeal health care reform, Congress simply refuses to provide the funding necessary for implementation.

“Where the laws cannot be executed it is all one as if there were no laws.” – John Locke Two Treatises of Government

Oversight function
senate confirmations

Filibusters for confirmation hearings becoming more common.

President unable to fill positions necessary to run the government due to obstructionist tactic by a minority.

What does this mean: If a corrupt bureaucracy has effectively joined an “iron triangle” or subgovernment as depicted in plural-elitist theory, a new director may pose a threat to this cozy relationship. For example, energy companies will fight hard to prevent the installation of any individual that they believe would intend to regulate the industry. This forces the President to either leave the position vacant, or to nominate a candidate more favorable to industry.

Senate confirmations

In effect, the Senate filibuster is being utilized to prevent the President from addressing a significant source of government corruption and doing his job. On the other hand a filibuster that keeps out someone with a conflict of interests could be seen in the same light.

senatorial courtesy

If a vacancy becomes available in a Federal Court it is customary for the Senators of the state to recommend a judge to fill the vacancy.

In recent years we have seen Republican Senators make these recommendations only to filibuster their own suggested judges.

Senatorial courtesy
decision process

Trustee: Listens to constituents then reasons through proposals and information to provide the best outcomes for constituents.

Delegate: Knows how their constituents feel about an issue and votes that way regardless of personal feelings or experience. Note: It is nearly impossible to know what constituents feel regarding legislation when so many Americans are ill-informed or misinformed.

Politico: Shifts back and forth between these two positions.

Decision process

Political parties: Tom DeLay “The Hammer”. DeLay organized the effort to link K Street lobbyists directly with Republican Congressmen. This was done in an open and blatant manner referred to as the “K Street Project”. Delay was convicted “on charges of money laundering and conspiracy to commit money laundering for using a political action committee to illegally send corporate donations to Texas House candidates in 2002.” Some of his former aides also were convicted in the Abramhoff Scandal.

This is the person who strong-armed moderate Republicans to vote for impeachment against Bill Clinton for a consensual sex act.

If the Speaker of the House has sufficient power to leverage campaign finances and threaten with a primary challenge, has the party become little more than pawns of the powerful? Should this be legal?

This effort to link willing Congress members to economic special interests has been institutionalized through the American Legislative Exchange Council (ALEC)


Divided government: Most common, very little gets done. A period of “drift” (Hacker and Pierson) or “incrementalism” (Baumgartner and Jones). Major reforms of the system are nearly impossible. Common in our bicameral presidential system.

Unified government: One party has a political monopoly (both houses of Congress and the White House) and is able to implement significant policy reforms. Typical in a Parliamentary system. Looking at unified US governments over the last 100 years:

unified governments


Woodrow Wilson 1913-1919 –Progressive taxation

FDR 1933-1945* New Deal legislation: bank regulation, economic stimulus, Social Security, unemployment insurance.

Harry Truman 1949-1953 The Marshall Plan, desegregation of the military, NATO, UN, and Truman Doctrine

JFK and LBJ 1961-1969* - Civil Rights, and the Great Society legislation (Medicare, Medicaid, welfare, grants for education.)

Carter 1977-1981* stagflation of the late 1970s, high unemployment and inflation but strong economic growth when inflation is factored in. Efforts at conservation and Middle East peace.

* denotes enough of a majority in the Senate to defeat a filibuster

Unified governments
unified governments1


Harding, Coolidge, Hoover 1921-1931 All 10 years with Treasury Secretary Andrew Mellon. Laissez-faire policies of tax cuts and deregulation, led to real estate bubble and The Great Depression.

George W Bush 2003-2007 Laissez-faire policies of tax cuts and deregulation, led to real estate bubble and The Great Recession.

Unified governments

Congressmen vote on what they perceive to be preferences of constituents, but often tend to visit places at home where the people agree with them.

Constituency work: If you ever work for a Congressman in an internship, this will be a large part of your job, navigating red tape and putting constituents in touch with the agencies that can help them. Ted Kennedy and John McCain were both well known for their constituency work.

constituents vs party

“Studies by political scientists show that members vote in conformity with prevailing opinion in their districts about two-thirds of the time.” Yet they vote with their party 90% of the time.

“It is rare for a legislator to vote against the wishes of his or her constituents regularly…” Yet in recent months we are seeing significant support for raising tax rates on wealthier Americans and leaving Medicare and Social Security intact.

If you are a Congressman who simply wants to keep his job, do you follow the wishes of the general public who are unlikely to ever care enough to find out how you voted and may or may not vote? Or do you heed the demands of those with the resources to remove you from office for failing to vote the way you are supposed to, and who will, in fact, know exactly how you voted?

Constituents vs party
staff and support agencies

Freshmen Congressmen with little political experience or knowledge are the most susceptible to influence from staff and support agencies and the least likely to question perceived expertise.

We discussed how we come to decisions. We receive information, filtered through an emotional response to that information, and we form an opinion based on the information and our emotional response. Staff and support agencies, by providing information (perhaps selectively) can provide the politician with a ready made opinion that they believe to be their own. One of Powell’s “centers of real power”: government staff and consultants.

Example: Director of Medicare knew Part D would cost $100-$200 billion more than was being reported to Congress but threatened the actuary with being fired if he told Congress. This Director, Thomas Scully, was actively seeking employment with lobbying firms representing firms from the health care industry as this was going on.

Staff and support agencies
richer understanding data average vs median

What happened here? Was there suddenly a huge turnover in Congress? When there are huge disparities from the richest to the poorest, average net worth becomes largely skewed out of proportion to reality. The 25 richest Congressmen all have a net worth of at least $28.1 million.

The richest, Darrell Issa (R-CA) is worth $448.1 million. He alone would raise the average by $837,000 per member.

The top 5 combined are worth $1,426,400,000 These 5 would raise the average by $2.7 million.

25 poorest had negative net worth with the poorest member of Congress having $4.7 million in debt.

Richer: understanding data average vs median
polarization page 196

“Polarization occurs when members of both parties move away from the moderate middle and share increasingly less common ground.”

This is an example of false equivalency. It suggests that while Republicans have developed more extreme right-wing views that Democrats have been adopting more extreme left-wing views. There is an assumption that any opinion formed must be ideologically driven. There is no recognition that some policies work and others do not.

Present day Democrats often hold political views that would be considered far more conservative than the views of moderate Republicans of the 1950s or 1960s.

Polarization page 196