CONGRESS OF THE U.S.: COMMITEES, RULES AND PROCEDURES No part of this digital document may be reproduced, stored in a retrieval system or transmitted in any form or by any means. The publisher has taken reasonable care in the preparation of this digital document, but makes no expressed or implied warranty of any kind and assumes no responsibility for any errors or omissions. No liability is assumed for incidental or consequential damages in connection with or arising out of information contained herein. This digital document is sold with the clear understanding that the publisher is not engaged in rendering legal, medical or any other professional services.
CONGRESS OF THE U.S.: COMMITEES, RULES AND PROCEDURES
SELA G. THOMASON EDITOR
Nova Science Publishers, Inc. New York
Copyright © 2009 by Nova Science Publishers, Inc.
All rights reserved. No part of this book may be reproduced, stored in a retrieval system or transmitted in any form or by any means: electronic, electrostatic, magnetic, tape, mechanical photocopying, recording or otherwise without the written permission of the Publisher. For permission to use material from this book please contact us: Telephone 631-231-7269; Fax 631-231-8175 Web Site: http://www.novapublishers.com NOTICE TO THE READER The Publisher has taken reasonable care in the preparation of this book, but makes no expressed or implied warranty of any kind and assumes no responsibility for any errors or omissions. No liability is assumed for incidental or consequential damages in connection with or arising out of information contained in this book. The Publisher shall not be liable for any special, consequential, or exemplary damages resulting, in whole or in part, from the readers’ use of, or reliance upon, this material. Any parts of this book based on government reports are so indicated and copyright is claimed for those parts to the extent applicable to compilations of such works. Independent verification should be sought for any data, advice or recommendations contained in this book. In addition, no responsibility is assumed by the publisher for any injury and/or damage to persons or property arising from any methods, products, instructions, ideas or otherwise contained in this publication. This publication is designed to provide accurate and authoritative information with regard to the subject matter covered herein. It is sold with the clear understanding that the Publisher is not engaged in rendering legal or any other professional services. If legal or any other expert assistance is required, the services of a competent person should be sought. FROM A DECLARATION OF PARTICIPANTS JOINTLY ADOPTED BY A COMMITTEE OF THE AMERICAN BAR ASSOCIATION AND A COMMITTEE OF PUBLISHERS. LIBRARY OF CONGRESS CATALOGING-IN-PUBLICATION DATA Available upon request. ISBN 978-1-60876-582-9 (E-Book)
Published by Nova Science Publishers, Inc. New York
CONTENTS Preface Chapter 1
xi Resolving Legislative Differences in Congress: Conference Committees and Amendments between the Houses Elizabeth Rybicki
1
Chapter 2
Congressional Review of Agency Rulemaking: An Update and Assessment of the Congressional Review Act after Ten Years 37 Morton Rosenberg
Chapter 3
Federalism, State Sovereignty, and the Constitution: Basis and Limits of Congressional Power Kenneth R. Thomas
75
Rescission Actions Since 1974: Review and Assessment of the Record Virginia A. McMurtry
99
Chapter 4
Chapter 5
Chapter 6
Chapter 7
Chapter 8
Chapter 9
Grassroots Lobbying: Constitutionality of Disclosure Requirements Jack Maskell
123
Congressional Resources in CRS Research Centers and the La Follette Congressional Reading Room Audrey Celeste Crane-Hirsch
143
Enforcement of Congressional Rules of Conduct: An Historical Overview Mildred Amer
167
Congressionally Chartered Nonprofit Organizations (“Title 36 Corporations”): What they Are and how Congress Treats them Kevin R. Kosar
185
Casework in a Congressional Office: Background, Rules, Laws, and Resources R. Eric Petersen
203
vi
Contents
Chapter 10
Retirement Benefits for Members of Congress Patrick J. Purcell
Chapter 11
Members who have Served in the U.S. Congress 30 Years or more Mildred Amer
Chapter 12
U.S. Trade Statutes: Expiration Dates and Mandated Periodic Reports to Congress Mary Jane Bolle, William H. Cooper, Ian F. Fergusson, J. F. Hornbeck, James K. Jackson, Vivian C. Jones, Danielle Langton, Michael F. Martin, M. Angeles Villarreal, Jennifer E. Lake,.Charles E. Han rahan, Remy Jurenas, and Brent D. Yacobucci
Chapter 13
Roles and Duties of a Member of Congress R. Eric Petersen
Chapter 14
“No Confidence” Votes and other Forms of Congressional Censure of Public Officials Jack Maskell and Richard S. Beth
223
237
255
271
283
Chapter 15
Congressional Salaries and Allowances Ida A. Brudnick
299
Chapter 16
Prescription Drug Sales over the Internet Christopher J. Sroka
311
Chapter 17
United Nations Commission on Human Rights (UNCHR): Recent Congressional Issues Vita Bite
321
Salaries of Members of Congress: A List of Payable Rates and Effective Dates, 1789-2007 Ida A. Brudnick
327
Chapter 18
Chapter 19
Congressional Budget Actions in 2005 Bill Heniff Jr.
333
Chapter 20
Party Leaders in the United States Congress, 1789-2007 Valerie Heitshusen
365
Chapter 21
The “Deeming Resolution”: A Budget Enforcement Tool Robert Keith
401
Chapter 22
Lame Duck Sessions of Congress, 1935-2004 (74th-108th Congresses) Richard S. Beth
Chapter 23
Recess Appointments: A Legal Overview T. J. Halstead
425 443
Contents Chapter 24
Chapter 25
Territorial Delegates to the U.S. Congress: Current Issues and Historical Background Betsy Palmer Substantiality of an Agency's Legal and Policy Objections in Refusing to Comply with Subpoenas for Documents and the Testimony of Agency Personnel Morton Rosenberg
Chapter 26
Asian Pacific Americans in the United States Congress Lorraine H. Tong
Chapter 27
Congressional Nominations to U.S. Service Academies: An Overview and Resources for Outreach and Management R. Eric Petersen
Chapter 28
Points of Order in the Congressional Budget Process James V. Saturno
Chapter 29
Appropriations Subcommittee Structure: History of Changes from 1920-2007 James V. Saturno
Chapter 30
Chapter 31
Chapter 32
Chapter 33
Pages of the United States Congress: History, Background Information, and Proposals for Change Mildred Amer
vii
461
479 497
515 533
547
561
Congressional Budget Resolutions: Motions to Instruct Conferees Robert Keith
571
Tracking Current Federal Legislation and Regulations: A Guide to Resources Pamela Hairston
585
Gifts and Ethics Rules: Side-by-Side Comparison of Provisions of S. 1 and H.Res. 6, 110th Congress Jack Maskell
597
Chapter 34
Architect of the Capitol: Appointment, Duties, and Operations Mildred Amer
Chapter 35
Election Year Restrictions on Mass Mailings by Members of Congress: How H.R. 1614 / S. 936 / S. 1285 Would Change Current Law Matthew E. Glassman
Chapter 36
Congressional Gifts and Travel: Proposals in the 109th Congress Mildred Amer
Chapter 37
Salary Linkage: Members of Congress and Certain Federal Executive and Judicial Officials
609
619 627
635
viii
Contents Barbara L. Schwemle
Chapter 38
Technology Assessment in Congress: History and Legislative Options Genevieve J. Knezo
Chapter 39
Congressional Official Mail Costs Matthew E. Glassman
Chapter 40
Protection of Classified Information by Congress: Practices and Proposals Frederick M. Kaiser
643 651
661
Chapter 41
Executive Lobbying: Statutory Controls R. Eric Petersen
Chapter 42
Congressional or Federal Charters: Overview and Current Issues Kevin R. Kosar
677
Salaries of Members of Congress: Congressional Votes, 1990-2007 Ida A. Brudnick
683
Chapter 43
669
Chapter 44
Congressional Advisory Commissions: An Overview Matthew E. Glassman
713
Chapter 45
Committee of the Whole: An Introduction Judy Schneider
721
Chapter 46
The Congressional Budget Process: A Brief Overview James V. Saturno
727
Chapter 47
Congressional Oversight Frederick M. Kaiser
735
Chapter 48
Congressional Redistricting: The Constitutionality of Creating an At-Large District L. Paige Whitaker
741
Chapter 49
Procedural Analysis of Private Laws Enacted: 1986-2007 Christopher M. Davis
747
Chapter 50
Points of Order, Rulings, and Appeals in the Senate Valerie Heitshusen
755
Chapter 51
Congressional Franking Privilege: An Overview of Legislation in the 110th Congress Matthew E. Glassman
Chapter 52
Architects of the Capitol: Selected Biographical Information Mildred Amer
759 763
Contents Chapter 53
Points of Order, Rulings, and Appeals in the House of Representatives Valerie Heitshusen
ix
767
Chapter 54
Congressional Franking Privilege: An Overview Matthew E. Glassman
771
Chapter 55
Congress’ Early Organization Meetings Judy Schneider
775
Chapter 56
General Debate in Committee of the Whole James V. Saturno
779
Chapter 57
Types of Committee Hearings Valerie Heitshusen
783
Chapter 58
Committee of the Whole: Stages of Action on Measures Richard S. Beth
787
Chapter 59
Amendments between the Houses James V. Saturno
791
Chapter 60
Congressional Budget Act Points of Order Bill Heniff Jr.
795
Chapter 61
Pages of the United States Congress: Selection, Duties, and Program Administration Mildred Amer
Chapter 62
Engrossment, Enrollment, and Presentation of Legislation R. Eric Petersen
Chapter 63
Congressional Record: Its Production, Distribution, and Accessibility Mildred Amer
799 803
807
Chapter 64
Budget Resolution Enforcement Bill Heniff Jr.
809
Chapter 65
Messages, Petitions, Communications, and Memorials to Congress R. Eric Petersen
811
Chapter 66
Conference Reports and Joint Explanatory Statements Christopher M. Davis
815
Chapter 67
Committee Types and Roles Valerie Heitshusen
819
Chapter 68
“Sense of” Resolutions and Provisions Christopher M. Davis
823 823
Chapter 69
Conference Committee Deliberations Walter J. Oleszek
827
Chapter 70
Publications of Congressional Committees: A Summary
831
x
Contents Matthew E. Glassman
Chapter 71
Amendment Process in the Committee of the Whole Judy Schneider
835
Chapter 72
Pairing in Congressional Voting: The House Christopher M. Davis
839
Chapter 73
Formulation and Content of the Budget Resolution Bill Heniff Jr.
841
Chapter 74
Expedited or “Fast-Track” Legislative Procedures Christopher M. Davis
845
Chapter 75
Appropriations Bills: What Are “General Provisions”? Sandy Streeter
847
Chapter 76
Overview of the Authorization-Appropriations Process Bill Heniff Jr.
849
Chapter 77
Bills, Resolutions, Nominations, and Treaties: Origins, Deadlines, Requirements, and Uses Richard S. Beth
Chapter 78
Bills and Resolutions: Examples of how Each Kind is Used Richard S. Beth
Chapter 79
Provisions of Special Rules in the House: An Example of a Typical Open Rule Judy Schneider
Chapter 80 Index
Sunset Review: A Brief Introduction Virginia A. McMurtry
853 857
861 863 867
PREFACE This new book presents the nuts and bolts procedures and rules which make the U.S. Congress tick.. Chapter 1 - The Constitution requires that the House and Senate approve the same bill or joint resolution in precisely the same form before it is presented to the President for his approval or veto. To this end, both houses must pass the same measure and then attempt to reach agreement about its provisions. The House and Senate may be able to reach agreement by an exchange of amendments between the houses. Each house has one opportunity to amend the amendments from the other house, so there can be Senate amendments to House amendments to Senate amendments to a House bill. House amendments to Senate bills or amendments are privileged for consideration on the Senate floor; Senate amendments to House bills or amendments generally are not privileged for consideration on the House floor. In practice, the House and Senate often dispose of amendments between the houses by unanimous consent. Chapter 2 - On March 29, 1996, the President signed into law the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), P.L. 104-121, 110 Stat. 857-874, Subtitle E of which for the first time established a mechanism by which Congress can review and disapprove, by means of an expedited legislative process, virtually all federal agency rules. In its current form, however, some have questioned the efficacy of the review scheme as a vehicle to control agency rulemaking through the exercise of legislative oversight. These questions have been raised despite the use of the CRA to nullify OSHA' s controversial ergonomics standards in March 2001. In the view of some observers, the OSHA action was the result of a unique confluence of circumstances not likely to soon recur: the White House and both Houses of Congress in the hands of the same political party, a contentious rule promulgated in the waning days of an outgoing administration; longstanding opposition to the rule by some in Congress and by a broad coalition of business interests; and encouragement of repeal by the President. On the other hand, some maintain that a number of major rules have been affected by the Agency recognition of the existence of the review mechanism, and argue that the review scheme has had a significant influence. Chapter 3 - The ratification of the U.S. Constitution, to a significant extent, defined the lines of authority between the state and federal governments. In recent years, the Supreme Court has decided a number of cases that address this historical relationship. This chapter discusses state and federal legislative power generally and focuses on a number of these "federalism" cases. The chapter does not, however, address the much larger policy issue of
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when it is appropriate — as opposed to constitutionally permissible — for federal powers to be exercised. The U.S. Constitution provides that Congress shall have the power to regulate commerce with foreign nations and among the various states. This power has been cited as the constitutional basis for a significant portion of the laws passed by the Congress over the last 50 years, and it currently represents one of the broadest bases for the exercise of congressional powers. In United States v. Lopez and subsequent cases, however, the Supreme Court did bring into question the extent to which Congress can rely on the Commerce Clause as a basis for federal jurisdiction. Another significant source of congressional power is based on the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Section 5 of that amendment provides that Congress has the power to legislate regarding its provisions. In the case of Flores v. City of Boerne, however, the Court imposed limits on this power, requiring that there must be a "congruence and proportionality" between the injury to be remedied and the law adopted to that end. Chapter 4 - The Impoundment Control Act (ICA) was included as Title X of the Congressional Budget and Impoundment Control Act of 1974, signed into law on June 12, 1974 (88 Stat. 332). Under the ICA, unless Congress takes action to approve a rescission request from the President within the 45-day review period prescribed by the law, the funds must be released. With respect to a presidential rescission message, Congress may approve more or less than the amount requested by the President. In addition, absent a specific request from the President, Congress on its own accord may initiate rescission actions, by cancelling previously appropriated funds in a subsequent law. According to data compiled by the Government Accountability Office (GAO), from FY1974 to FY2006, Presidents requested 1,178 rescissions under the ICA, totaling somewhat over $76 billion. Close to a third of the proposals were approved by Congress, with approximately 40% of the total dollar amount of presidential rescission requests ($25 billion) enacted by Congress. The sum of rescissions requested by the President and subsequently enacted exceeded $1 billion in only four of the 30-plus years (FY1981, FY1982, FY1992 and FY1994). During this period Congress initiated 1,610 rescission actions amounting to $143.5 billion, over five times the total of presidentially requested rescission subsequently enacted, reflecting a trend toward an increasing number of rescissions being initiated by Congress. Chapter 5 - Certain legislative proposals, such as S. 1, 110th Congress, and H.R. 4682, 109th Congress, seek to extend public reporting requirements for some activities intended to stimulate “grassroots” lobbying. The activities involved in “lobbying,” including the stimulation of “grassroots” lobbying, clearly implicate and involve freedoms protected by the First Amendment, including speech, associational rights, and the right to petition the government. The courts have long found, however, that certain burdens on these fundamental rights may be tolerated in a statute when the statute seeks to promote significant governmental and societal interests, when the burdens on such activities are, at the most, indirect (such as in disclosure laws), and when the statute is drawn with enough precision so that a correlation exists between the information required to be disclosed and the achievement of the interests asserted as the law’s justification. Under such standards, the courts have upheld against facial First Amendment challenges required disclosures and detailed reporting in the areas of lobbying activities and campaign finance regulation to promote the interests of preventing corruption and limiting the undue influences of monied and powerful interests, as
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well as preventing merely the appearance of such corruption or influence, in basic governmental and democratic processes. The apparent trend in more recent judicial decisions seems to allow the legislatures some leeway in determining which activities are relevant to the goals of preserving the integrity of, for example, their own legislative process, and so to include also in required disclosures some activities that are more on the periphery and not necessarily themselves directly involved in such process, but are intended to result in direct contacts and to significantly influence a legislator. Chapter 6 - Congressional staff and interns seeking quick facts, legislative information, Congressional Research Service (CRS) publications, and reference and research assistance may come in person to CRS facilities located in Library of Congress and in House and Senate office buildings. These include the Senate Research Center (SRC) in Russell B-07, the Rayburn Research Center (RRC) in Rayburn B-355, and the La Follette Congressional Reading Room (LCRR) in the Madison building LM- 202 and LM-204. The LCRR and research centers provide access to CRS products; Internet and online sources, including the CRS website and the Legislative Information Service; magazine and newspaper collections and indexing tools; a variety of standard reference books; and legislative and public policy materials useful to congressional offices. Staff and intern user self-service is welcomed, with guidance provided by CRS reference staff as needed. This chapter, originally authored by Merete F. Gerli, describes the types of CRS products and a selection of the most frequently used printed and online reference sources available in the reading room and research centers for use by congressional staff. These deal with legislation and public policy; bills, congressional documents, laws, and regulations; Congress, elections, and politics; the federal government; directories of organizations, associations, corporations, state agencies, educational institutions, and the media; biographical information; data on foreign countries and international affairs; quick facts and statistics; and special collections such as quotations. Chapter 7 - The Constitution vests Congress with broad authority to discipline its Members. However, only in the past 40 years have both houses established formal rules of conduct and formal disciplinary procedures where allegations of illegal or unethical conduct are investigated and punishment is meted out. Previously, Congress dealt with misconduct on a case-by-case basis and relied on the decisions of voters as the ultimate authority in questions of wrongdoing. In 1964, the Senate first established a permanent ethics committee, the Select Committee on Standards and Conduct, which was renamed the Select Committee on Ethics in 1977. The House first established a permanent ethics committee, the Committee on Standards of Official Conduct, in 1967. In 1968, each chamber adopted rules of conduct. Since the committees were established, two Representatives have been expelled following felony convictions, 22 Representatives have been censured, and eight Representatives have been reprimanded; nine Senators have been censured, and one Senator was reprimanded. In recent years, the effectiveness of the two congressional ethics committees has been debated. Numerous proposals made within and outside of Congress have suggested alternative means to enforce congressional rules of conduct, including the use of an outside, independent entity composed of non-Members. Chapter 8 - The chartering by Congress of organizations with a patriotic, charitable, historical, or educational purpose is essentially a 20th century practice. There are currently
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some 92 nonprofit corporations listed in Title 36, Subtitle II, of the U.S. Code. These socalled “Title 36 corporations,” such as the Girl Scouts of America and the National Academy of Public Administration, are typically incorporated first under state law, then request that Congress grant them a congressional or federal charter. Chartered corporations listed in Title 36 are not agencies of the United States, and the charter does not assign the corporate bodies any governmental attributes. For instance, the corporation’s debt is not guaranteed, explicitly or implicitly, by the full faith and credit of the United States. The attraction of Title 36 status for national organizations is that it tends to provide an “official” imprimatur to their activities, and to that extent it may provide them prestige and indirect financial benefit. In recent years, some in Congress have expressed concern that the public may be misled by its chartering process into believing that somehow the U.S. government approves and supervises the corporations, when in fact this is not the case. As a consequence, in 1989 the House Judiciary Committee decided upon a moratorium on granting new charters. (The Senate generally defers to the House on chartering matters.) This moratorium has been reaffirmed by the committee at the beginning of each Congress since. On several recent occasions, however, the full Congress has established Title 36 corporations on its own plenary authority. Chapter 9 - The term casework in a congressional office refers to the response or services that Members of Congress provide to constituents who request assistance. Each year, thousands of constituents turn to Members of Congress with a wide range of requests, from the simple to the complex. Members and their staffs help constituents deal with administrative agencies by acting as facilitators, ombudsmen, and, in some cases, advocates. In addition to serving individual constituents, some congressional offices also consider as casework liaison activities between the federal government and local governments, businesses, communities, and nonprofit organizations. Members of Congress determine the parameters of their constituent service activities. Casework is conducted for various reasons, including a broadly held understanding among Members and staff that casework is integral to the representational duties of a Member of Congress, and that such activities can be part of an outreach strategy to build political support. In addition, casework can be viewed as an evaluative stage of the legislative process. Constituent inquiries about specific policies, programs, or benefits may suggest areas where programmatic or policy changes require further legislative consideration. Chapter 10 - Prior to 1984, neither federal civil service workers nor Members of Congress paid taxes to Social Security, nor were they eligible for Social Security benefits. Members of Congress and other federal employees were instead covered by a separate pension plan called the Civil Service Retirement System (CSRS). The 1983 amendments to the Social Security Act (P.L. 98-2 1) required federal employees first hired after 1983 to participate in Social Security. These amendments also required all Members of Congress to participate in Social Security as of January 1, 1984, regardless of when they first entered Congress. Because the CSRS was not designed to coordinate with Social Security, Congress directed the development of a new retirement plan for federal workers. The result was the Federal Employees’ Retirement System Act of 1986 (P.L. 99-335). Chapter 11 - This chapter identifies those 234 Members of Congress whose service in the House or Senate, or both, has been 30 years or more. The information provided is current through July 7, 2007.
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To place this information in perspective, it should be noted that some 11,814 individuals have served in Congress since 1789. Excluding Delegates and Resident Commissioners, this includes 9,919 persons who have served only in the House, 1,250 persons who have served only in the Senate, and 645 who have served in both houses. Of the names listed here, 137 have spent all of their congressional careers in the House; 27 have spent all of their careers in the Senate; and 70 have had combined service in the House and Senate to achieve 30 or more years of service. Three women are included in the listing. Seventeen incumbent Senators and 17 incumbent Representatives have served 30 years or longer. Chapter 12 - The Constitution gives Congress express power over the imposition of tariffs and the regulation of foreign trade. As part of this responsibility, Congress enacts laws including those that: establish tariff rates; implement trade agreements; provide remedies against unfairly traded imports; control exports of sensitive technology; and extend tariff preferences to imports from developing countries. Over time, and under carefully prescribed circumstances, Congress has delegated some of its trade authority to the Executive Branch. Congress, however, has, in some cases, kept tight reins on the use of this authority by requiring that certain trade laws and programs be renewed; and by requiring the Executive Branch to issue reports to Congress to monitor the implementation of the trade laws and programs. This chapter is intended to assist Congress in exercising its oversight responsibilities regarding foreign trade. It is designed as a quick reference guide on two key elements of U.S. trade statutes: (a) expiration dates for major trade programs and trade statutes; and (b) mandated periodic reports to Congress. To this end, the chapter provides this information in two tables. Table 1 includes expiration dates of programs or laws. Table 2 includes information on mandated reports to Congress by the Executive branch, as required under various trade laws. Chapter 13 - The duties carried out by a Member of Congress are understood to include representation, legislation, and constituent service and education, as well as political and electoral activities. The expectations and duties of a Member of Congress are extensive, encompassing several roles that could be full-time jobs by themselves. Despite the acceptance of these roles and other activities as facets of the Member’s job, there is no formal set of requirements or official explanation of what roles might be played as Members carry out the duties of their offices. In the absence of formal authorities, many of the responsibilities that Members of Congress have assumed over the years have evolved from the expectations of Members and their constituents. Upon election to Congress, Members typically develop approaches to their jobs that serve a wide range of roles and responsibilities. Given the dynamic nature of the congressional experience, priorities placed on various Member roles tend to shift in response to changes in seniority, committee assignment, policy focus, district or state priorities, institutional leadership, and electoral pressures. In response, the roles and specific duties a Member carries out are often highlighted or de-emphasized accordingly. Chapter 14 - S.J.Res. 14 of the 1 10th Congress, submitted on May 24, 2007, has been described as proposing a vote of no confidence in Attorney General Alberto Gonzales. This chapter discusses the possible significance of action by Congress or either House to adopt a resolution expressing “no confidence” in a cabinet official or other official in the executive branch of the federal government. It examines the legal issues that could be raised by
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resolutions of this kind and discusses the relation of such action both to votes of no confidence in systems of parliamentary government and to congressional action to censure or otherwise express disapprobation of public officials. It also describes known instances in which action to express a lack of confidence in, or impose another form of censure on, public officials have been attempted in Congress. S.J.Res. 14 of the 1 10th Congress, submitted on May 24, 2007, has been described as proposing a vote of no confidence in Attorney General Alberto Gonzales. This chapter discusses the possible significance of action by Congress or either House to adopt a resolution expressing “no confidence” in a cabinet official or other official in the executive branch of the federal government. It examines the legal issues that could be raised by resolutions of this kind and discusses the relation of such action both to votes of no confidence in systems of parliamentary government and to congressional action to censure or otherwise express disapprobation of public officials. It also describes known instances in which action to express a lack of confidence in, or impose another form of censure on, public officials have been attempted in Congress. Chapter 15 - This chapter provides basic information on congressional salaries and allowances. First, the chapter briefly summarizes the current salary of Members of Congress, limits on their outside earned income and honoraria, and applicable health insurance and retirement benefits. Second, the chapter provides information on allowances available to Representatives and Senators to support them in their official and representational duties as Members. Their allowances include those for official office expenses, staff, mail, and other allowances and services. Third, the chapter lists the salaries of congressional officers and officials and committee staff. Sources are hearings, reports, debates, and language of regular annual and supplemental legislative branch appropriations acts; the U.S. Code and U.S. Code Annotated Supplements to Title 2; latest available Order of the Speaker of the House of Representatives, implementing a pay increase for House employees, effective January 1, 2006, issued December 18, 2005 (to be contained in 2 U.S.C. 60a-2a, and currently available at [http://uscode.house.gov]); latest publicly available Order of the President pro tempore, implementing a pay increase for Senate employees, issued January 4, 2006 (to be contained in 2 U.S.C. 60a-1,and currently available at [http://uscode.house.gov]); the Members’ Congressional Handbook (web edition), prepared by the Committee on House Administration, for Members and staff of the U.S. House of Representatives, available at [http://cha.house.gov/index.php?option =com_content& task=view&id=49&Itemid=37]; the quarterly Statement of Disbursements of the House, compiled by the House Chief Administrative Officer, April 1, 2007, to June 30, 2007 (110th Congress, 1st session, H.Doc. 110-52, part 3 of 3, pp. 342 1-3435); and the Office of Personnel Management for executive level pay rates to which some legislative employees are statutorily linked. Chapter 16 - This chapter provides an overview of prescription drug sales over the Internet and related legislative activities. The chapter discusses how online pharmacies operate and some of the concerns raised by the sale of drug products in electronic commerce. The chapter also describes some recent government and private sector actions taken to address these concerns.
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Chapter 17 - The United States played a major role in establishin the U.N. Commission on Human Rights (UNCHR) and has been a member of that body from its first meeting in 1847. The U.S. term ends on December 31, 2001, since the United States did not secure enough votes to retain its seat in 2002. In response to this action by U.N. member countries, the House of Representatives on May 10, 2001 adopted an amendment to the Foreign relations Authorizations for FY2002-2003 (H.R. 1646) withholding the third and final arrears payment ($244 million) to the United Nations and other international organizations until the United States regains a seat on the UNCHR. This short chapter provides an overview of the UNCHR and Administration and Congressional responses to recent developments. Chapter 18 - Congress is required by Article I, Section 6, of the Constitution to determine its own pay. Prior to 1969, Congress did so by enacting stand-alone legislation. From 1789 through 1968, Congress raised its pay 22 times using this procedure. Congressional salaries initially were $1,500. By 1968, they had risen to $30,000. Stand-alone legislation may still be used to raise Member pay, as it was most recently in 1982, 1983, 1989, and 1991, but two other methods — including an automatic annual adjustment procedure and a commission process — are now also available. Under the annual adjustment procedure, Members are scheduled to receive a 2.7% increase in January 2008, unless modified by Congress, or limited by the rate of increase in the base pay of General Schedule(GS) federal employees. Congress voted to deny the scheduled January 2007 adjustment. Members last received a pay increase (1.9%) in January 2006, increasing their salary to the current rate of $165,200. Chapter 19 - During the first session of the 109th Congress, the House and Senate considered many different budgetary measures. Most of them pertained to fiscal year (FY) 2006 and beyond, but some made adjustments to the budget for FY2005. This chapter describes House and Senate actions on major budgetary legislation within the framework of the congressional budget process and other procedural requirements. Congress typically begins its annual budget process once the President submits his budget for the upcoming fiscal year. President George W. Bush submitted his FY2006 budget to Congress on February 7, 2005. The congressional budget process provides for an annual concurrent resolution on the budget to serve as a framework for the consideration of budgetary legislation. The budget resolution sets forth aggregate spending and revenue levels, and spending levels by major functional area, for at least five fiscal years. Budget resolution policies are implemented through the enactment of reconciliation bills, revenue and debt-limit legislation, and appropriations and other spending measures. They are enforced by points of order that may be raised when legislation is pending on the House and Senate floor. Chapter 20 - This chapter briefly describes current responsibilities and selection mechanisms for 15 House and Senate party leadership posts and provides tables with historical data, including service dates, party affiliation, and other information for each. Tables have been updated as of the chapter’s issuance date to reflect leadership changes. Although party divisions appeared almost from the First Congress, the formally structured party leadership organizations now taken for granted are a relatively modern development. Constitutionally-specified leaders, namely the Speaker of the House and the President pro tempore of the Senate, can be identified since the first Congress. Other leadership posts, however, were not formally recognized until about the middle of the 19th century, and some are 20th century creations.
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In the earliest Congresses, those House Members who took some role in leading their party were often designated by the President as his spokesperson in the chamber. By the early 1 800s, an informal system developed when the Speaker began naming his lieutenant to chair one of the most influential House committees. Eventually, other members wielded significant influence via other committee posts (e.g., the post-1880 Committee on Rules). By the end of the 19th century, the formal position of floor leaders had been established in the House. Chapter 21 - “Deeming resolution” is a term that refers to legislation deemed to serve as an annual budget resolution for purposes of establishing enforceable budget levels for a budget cycle. A deeming resolution is used when the House and Senate are late in reaching final agreement on a budget resolution or fail to reach agreement altogether. The Congressional Budget Act of 1974 requires the annual adoption of a budget resolution establishing aggregate levels of revenues, spending, the debt limit, and the surplus or deficit, as well as allocations of spending. Enforcement of the budget resolution relies primarily upon points of order and reconciliation procedures. With regard to the enforcement of budget aggregates and committee spending allocations, the major points of order are found in Sections 311 and 302 of the act, respectively. The term “deeming resolution” is not officially defined, nor is there any specific statute or rule authorizing such legislation. Instead, the use of a deeming resolution simply represents the House and Senate employing regular legislative procedures to deal with the issue on an ad hoc basis. Chapter 22 - A “lame duck” session of Congress occurs whenever one Congress meets after its successor is elected, but before the successor’s term begins. The expression is now used not only for a special session called after a sine die adjournment, but also for any portion of a regular session that falls after an election. In current practice, any meeting of Congress after election day, but before the following January 3, is a lame duck session. Prior to 1933, when the 20th Amendment changed the dates of the congressional term, the last regular session of Congress was always a lame duck session. A lame duck session can occur in several ways. (1) In practice, Congress has usually provided for its existing session to resume after a recess spanning the election. (In 1954, only the Senate returned in this way, while the House adjourned sine die.) (2) In 1940, 1942, and 2002, Congress continued meeting, sometimes in pro forma sessions every third day, until well after the election. (3) Congress can reconvene after an election pursuant to contingent authority granted to the leadership in a recess or adjournment resolution (in 1998, the House alone followed this course). Two other possibilities have not been realized: (4) Congress could set a statutory date for a new session to convene after the election, then adjourn its existing session sine die. (5) While Congress is in recess or sine die adjournment, the President could call it into extraordinary session at a date after the election. Chapter 23 - Article II of the Constitution provides that the President "shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and counsels, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for and which shall be established by law." As a supplement to this authority, the Constitution further provides that "[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session." The Recess Appointments Clause was designed to enable the President to ensure the
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unfettered operation of the government during periods when the Senate was not in session and therefore unable to perform its advice and consent function. In addition to fostering administrative continuity, Presidents have exercised authority under the Recess Appointments Clause for political purposes, appointing officials who might have difficulty securing Senate confirmation. Coupled with the ambiguities inherent in interpreting the Clause, the President's use of the recess appointment power in such a fashion has given rise to significant political and legal controversy since the beginning of the Republic. This chapter provides an overview of the Clause, with a focus on its historical application and interpretation. This chapter is a companion piece to CRS Report RL32971, Judicial Recess Appointments: A Legal Overview, by T.J. Halstead, which focuses specifically on the application and interpretation of the Clause in the judicial context. Chapter 24 - Territorial Delegates have served in the House since the late 1700s, representing territories that had not yet achieved statehood. In the 20th Century, the concept of Delegate grew to include representation of territories where the United States exercises some degree of control but which were not expected to become states. Currently, the U.S. insular areas of American Samoa, Guam, the Virgin Islands, and the federal municipality of the District of Columbia are each represented in Congress by a Delegate to the House of Representatives. The individual elected to represent Puerto Rico is called the Resident Commissioner instead of delegate. The Delegates and Resident Commissioner are the successors of Delegates from statehood-bound territories, who first took seats in the House in the late 1700s. Proposals offered in recent Congresses have sought to grant the Delegate from the District of Columbia voting rights on the floor of the House. Another proposal would expand territorial representation to include the Commonwealth of the Northern Mariana Islands. Floor action in the House and Senate on these bills could occur before the end of the 109th Congress. Chapter 26 - Nine Asian Pacific Americans serve in the 110th Congress; two Senators, six Representatives, and one Delegate. Of the 36 Asian Pacific Americans who have served in the United States Congress from 1903 to the present. Their ancestry has included Chinese, Chamorro, Filipino, Asian Indian, Japanese, Korean, Native Hawaiian, and Samoan. There have been five Senators (three have also served in the House), 15 Representatives, six territorial Delegates, and 13 Resident Commissioners from the Philippine Islands. Resident Commissioners served from 1907-1946 while the Philippines was a U.S. territory and commonwealth (all were Philippine born). The ancestry of these Asian Pacific Americans has included Chinese, Chamorro, Filipino, Asian Indian, Japanese, Korean, Native Hawaiian, and Samoan. Of the 23 Asian Pacific Americans, 16 were Democrats and 7 were Republicans. Asian Pacific Americans have served in both houses of Congress representing California, Hawaii, Louisiana, Oregon, Virginia, American Samoa, and Guam. They have served in leadership positions, including committee and subcommittee chairmanships. This chapter presents information on Senators, Representatives, and Delegates, including party affiliations, length and dates of service, and committee assignments. Chapter 27 - Members of Congress are authorized by law to nominate candidates for appointment to four U.S. service academies. These schools are the U.S. Military Academy, the U.S. Naval Academy, the U.S. Air Force Academy, and the U.S. Merchant Marine Academy. The fifth service academy, the U.S. Coast Guard Academy, does not require a congressional nomination for appointment. These institutions prepare college-age Americans
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to be officers of the United States uniformed services. Upon graduation, service academy graduates are commissioned as officers in the active or reserve components of the military, the merchant marine, or the U.S. Coast Guard for a minimum of five years. The nomination of constituents to one of the service academies can provide Members of Congress with the opportunity to perform community outreach and other representational duties. In some states and congressional districts, nominations are highly competitive. Others are less competitive, and some offices do not receive expressions of interest from enough applicants to fill the number of nominations allocated. Consequently, some congressional offices might need to dedicate considerable staff resources to the selection process to identify qualified candidates, whereas others can incorporate service academy nominations alongside other constituent service work such as casework. Chapter 28 - The Congressional Budget Act of 1974 (Titles I-IX of P.L. 93-344, as amended) created a process that Congress uses each year to establish and enforce the parameters for budgetary legislation Enforcement is accomplished through the use of points of order, and through the reconciliation process. Points of order are prohibitions against certain types of legislation or congressional actions. These prohibitions are enforced when a Member raises a point of order against legislation that may violate these rules when it is considered by the House or Senate. This chapter summarizes points of order under the Congressional Budget Act of 1974, as amended, as well as related points of order established in the budget resolution adopted by Congress in 2007 (S.Con.Res. 21, 110th Congress), the Rules of the House for the 110th Congress, and the Budget Enforcement Act of 1990 (P.L. 101-508). In addition, it describes how points of order are applied and the processes used for their waiver in the House and Senate. Chapter 29 - This chapter details the evolution of the House and Senate Appropriations Committees' subcommittee structure from the 1920s to the present. In 1920, the House adopted a change in its rules to consolidate jurisdiction over all appropriations in the Appropriations Committee. After the enactment of the Budget and Accounting Act of 1921, the House reorganized its Appropriations Committee by establishing for the first time a set of subcommittees to consider appropriations bills based on the administrative organization of the executive branch. The Senate followed suit in 1922, and the two chambers have continued under that basic organizational approach since that time. The evolution of the modern Appropriations subcommittee structure can be divided into four eras. The first era, stretching roughly from the initial reorganization in the 1920s until the end of the Second World War, was marked by stability. Most of the changes in Appropriations structure resulted from combining bills (e.g., the Treasury Department bill with the Post Office Department bill beginning in 1924), although one new bill (and subcommittee) was created when the appropriations bill for the Department of Labor was split off from the Departments of State, Justice, Commerce, and Labor bill in 1939. Chapter 30 - For more than 175 years, messengers known as pages have served the United States Congress. Currently, approximately 100 young men and women from across the nation are allowed to serve as pages at any given time. Pages must be high school juniors and at least 16 years of age. Several incumbent and former Members of Congress as well as other prominent Americans have served as congressional pages. Pages must be appointed and sponsored by a Member of Congress for one academic semester of the school year, or a summer session. They are appointed on a rotating basis
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pursuant to criteria set by the House and Senate leadership, which determines the Members eligible to sponsor a page. Academic standing is among the most important criteria used in the final selection of pages. Over the years, there have been areas of concern about the problems posed by having young pages serve Congress. In the 1800s and early 1900s, some House pages were as young as 10 and Senate pages as young as 13. Most of the concerns and subsequent congressional actions addressed the lack of supervised housing, as well as issues such as age, tenure, selection, education, and overall management of the pages. The most recent and far-reaching reforms in the page system occurred in 1982 and 1983, following press reports of insufficient supervision, alleged sexual misconduct, and involvement in the trafficking of drugs on Capitol Hill. Most of these reports were later found to be unsubstantiated. Chapter 31 - Both the House and the Senate have procedures whereby the full bodies may issue instructions to conferees on budget resolutions. Such instructions usually are issued in the form of a motion, but in at least one instance the Senate adopted a simple resolution containing such instructions. If a motion or resolution instructing conferees is agreed to, however, the instructions are not binding on the conferees and no point of order would lie against the conference report on the ground that the instructions had been violated. The practices of the House and Senate regarding such motions differ markedly in key respects, including in terms of the frequency and number of motions and the prerogative to offer such motions First, the House resorts to such motions regularly, having considered 17 such motions in 14 of the past 18 years (covering FY1991-FY2008). The House regularly used such motions in earlier years as well. During this period, the Senate instructed its conferees on only two budget resolutions, for FY2000 and FY2008. For earlier years, the Senate precedents only cite one instance when budget resolution conferees were instructed (for FY1979, when a simple Senate resolution was used). Chapter 32- This guide has been designed to introduce congressional staff to selected official government and commercial sources that are useful in tracking and obtaining background information and specific facts on the status of federal legislative or regulatory initiatives. By using a variety of these sources, congressional staff can track federal legislation and regulations. Those who prefer weekly overviews would be interested in such commercial publications such as CQ Weekly, Newsweek, Time, and U.S. News and World Report. For daily coverage, helpful resources are the Congressional Record, CQ Today, (formerly CQ Daily Monitor), the Federal Register, The New York Times, The Washington Post, The Wall Street Journal, and The Los Angeles Times. Databases such as GPO Access, LexisNexis, Westlaw, and the websites of the U.S. House of Representatives and the U.S. Senate are also useful. Chapter 33 - The following chart presents, in summary fashion, a side-by-side comparison of the provisions in S. 1 and H.Res. 6, 1 10th Congress, which relate specifically to congressional ethics, including the receipt of gifts from lobbyists and their clients and the acceptance of payment or reimbursement of expenses from outside, private sources for “officially connected” travel expenses. Although the provisions of both S. 1 and H.Res. 6 deal with other matters, including changes to the internal procedures in the Senate and House, respectively, (and in S. 1, changes to the federal lobbying statute), this chart focuses only on comparing the amendments and proposed changes dealing with “ethics” provisions affecting Members, employees, and officers of either House of Congress. (For a summary of all of the
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provisions of S. 1, see CRS Report RL33852, Ethics, Lobbying, and Related Procedural Reforms Proposed in S. 1, 1 10th Congress.) On January 4, 2007, the House of Representatives adopted H.Res. 6, 1 10th Congress, which amended the internal Rules of the House to apply greater restrictions, more transparency, and further regulation to the acceptance by Members and staff of “gifts” from private, outside sources, including the acceptance of travel expenses or reimbursements for “officially connected” travel by Members and staff. The Rules changes prohibiting the receipt of even de minimis gifts (less than $50 in value) from lobbyists, agents of foreign principals, and private entities employing such lobbyists or foreign agents are effective in the House immediately; the new restrictions, regulations and transparency provisions regarding “officially connected” travel expenses are to take effect on March 1, 2007. Chapter 34 - The office of Architect of the Capitol (AOC) dates from 1793 when construction of the Capitol building began. The responsibilities of the office have grown substantially over time. In recent years, as a result of laws that affected the management of its large workforce and the overall direction of the office, changes have taken place in management and staffing policies. The AOC is appointed by the President and subject to Senate confirmation. Alan M. Hantman, FAIA, the most recent Architect, served from January 30, 1997, to February 4, 2007. Pursuant to law, he was confirmed for a 10-year term. He declined to seek reappointment. Stephen T. Ayers, AIA, currently serves as Acting Architect of the Capitol until such time as a permanent successor is installed. A bicameral congressional advisory commission is required to recommend to the President at least three candidates to fill the vacant AOC post. By law, the Architect, supported by such staff as are authorized by Congress, operates and maintains the Capitol Complex's buildings and grounds. Since the terrorist attacks of September 11, 2001, the Architect has participated in reviews of Capitol Hill security as a member of the Capitol Police Board and as a member of a security "working group" established by the Committee on House Administration. The AOC also supervises construction of the Capitol Visitor Center. Chapter 35 - Current law prohibits the franking of mass mailings by Senators fewer than 60 days, and by House Members fewer than 90 days, prior to any primary or general election in which the Member is a candidate. H.R. 1614, S. 936, and S. 1285 would amend Title 39, United States Code, by altering the prohibition for both Senators and House Members to the period starting 90 days prior to any primary and ending on the day of the general election for any federal election to which the Member is a candidate. The legislation would also prohibit the mailing of mass mailings for the same period by any congressional committee or subcommittee of which the chair or ranking member was a candidate for office. These changes would increase the mass-mailing-prohibited period for all Senators and some House Members. Had the legislation been enacted prior to the 2006 election, affected Members would have seen increases ranging from one day to 215 days, depending on the primary date in the Members home state. Table 1 of this chapter details these increases by state. Chapter 36 - It has been a decade since the House and Senate examined their rules on the acceptance of gifts and travel expenses. Press accounts of alleged excesses in privately funded
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congressional travel and gifts, particularly from lobbyists, have provided an impetus for proposed changes in the 109th Congress. On March 29, 2006, the Senate adopted S. 2349, the Legislative and Lobbying Transparency and Accountability Act of 2006, which was sponsored by Senators Trent Lott and Susan Collins This measure incorporated provisions of S. 2349, reported from the Senate Rules and Administration Committee, and S. 2128, sponsored by Senator John McCain and reported from the Senate Homeland Security and Governmental Affairs Committee. S. 2349 addresses many of the reform proposals discussed in the 109th Congress, including gifts and travel, earmarks, the "revolving door," lobbying by relatives of Members, floor access by former Members who are lobbyists, and disclosure of employment negotiations. Chapter 37 - The salaries of Members of Congress, certain high-level federal officials (those paid at Level II of the Executive Schedule (EX)), and certain federal justices and judges have been in parity for many years. The Ethics Reform Act of 1989 provides for annual pay adjustments to be established for the Members, the Vice President, federal officials paid under the EX Schedule, and federal justices and judges. The act also requires a Citizens’ Commission on Public Service and Compensation and the President to recommend salaries in parity for these federal government positions. The commission has never been activated, and, thus, such recommendations have never been made. Legislation currently pending in the 110th Congress would provide pay increases of 50% (S. 1638), 16.5% (S. 2353), and 41.3% (H.R. 3753), respectively, to justices and judges. This chapter discusses the issue of salary linkage. Chapter 38 - Congress created the Office of Technology Assessment (OTA) in 1972, P.L. 92484, and terminated its funding in 1995. The pros and cons of reviving OTA or recreating a similar body have been examined. Since 2002, at congressional direction, the Government Accountability Office (GAO) has conducted several pilot technology assessments. Legislation was proposed during the 108th Congress to restore OTA' s funding; to create an entity to conduct assessments for Congress; to conduct technology assessments in GAO; and to create a technology assessment capability in GAO or under its direction. In 2006, the House Science Committee held hearings on the issue of providing science and technology advice to Congress. Policy issues under discussion include the need for assessments, funding, the utility of GAO's technology assessment work, and options for design of an advisory body. Chapter 39 - The congressional franking privilege allows Members of Congress to send official mail via the U.S. Postal Service at government expense. This chapter provides information and analysis on the costs of franked mail in the House and Senate. In FY2006, overall expenditures on official mail were $34,388,661. House official mail costs ($30,706,581) were 89.3% of the total, whereas Senate mail costs ($3,623,080) were 10.7% of the total. Member mass mailings accounted for 82.8% of the total mail costs. In the House, 89.4% of mail costs were Member mass mailings, whereas 27.0% of Senate mail costs were Member mass mailings. During the past 20 years, franking reform efforts reduced franking expenditures by almost 70% from $113.4 million in FY1988 to $34.3 million in F2006 (Table 2). House mail costs have decreased from a high of $77.9 million in FY1988 to $30.7 million in FY2006. The Senate has dramatically reduced its costs, from $43.6 million in FY1984 to $3.6 million in FY2006. Chapter 40 - The protection of classified national security and other controlled information is of concern not only to the executive branch — which determines what
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information is to be safeguarded, for the most part — but also to Congress, which uses the information to fulfill its constitutional responsibilities. It has established mechanisms to safeguard controlled information in its custody, although these arrangements have varied over time between the two chambers and among panels in each. Both chambers, for instance, have created offices of security to consolidate relevant responsibilities, although these were established two decades apart. Other differences exist at the committee level. Proposals for change, some of which are controversial, usually seek to set uniform standards or heighten requirements for access. Chapter 41 - Federal agency employees use appropriated funds to foster public support and opposition to legislation pending before Congress. Congress has enacted limitations and prohibitions on executive lobbying, but these statutory restrictions have been difficult to enforce. To the extent that prosecution is required, Congress must rely on the Justice Department. Non-criminal prohibitions have been enacted to limit the expenditure of appropriated funds for certain types of lobbying activities. Congressional oversight can help curb executive lobbying efforts that are found objectionable. For further analysis, see CRS Report RL32750, Public Relations and Propaganda: Restrictions on Executive Agency Activities, by Kevin Kosar; CRS Report 97-57, Restrictions on Lobbying Congress With Federal Funds, by Jack Maskell; and CRS Report RL33065, Lobbying Reform: Background and Legislative Proposals, 109th Congress, by R. Eric Petersen. Chapter 42 - A congressional or federal charter is a federal statute that establishes a corporation. Congress has issued charters since 1791, although most charters were issued after the start of the 20th century. Congress has used charters to create a variety of corporate entities, such as banks, government-sponsored enterprises, commercial corporations, venture capital funds, and more. Recently, Congress has faced two issues involving its use of charters — confusion over who is responsible for the activities of chartered corporations and the challenges of managing them. Chapter 43 - The U.S. Constitution, in Article I, Section 6, authorizes compensation for Members of Congress “ascertained by law, and paid out of the Treasury of the United States.” Throughout American history, Congress has relied on three different methods in adjusting salaries for Members. Stand-alone legislation, the most frequently used method, was last used to provide increases in 1990 and 1991. It was the only method used by Congress until 1967, when Congress established the commission procedure. The second method, under which annual adjustments took effect automatically unless disapproved by Congress, was established in 1975. From 1975-1989, these annual adjustments were based on the rate of annual comparability increases given to the General Schedule federal employees. This method was changed by the 1989 Ethics Act to require that the annual adjustment be determined by a formula based on certain elements of the Employment Cost Index. Under this revised process, annual adjustments were accepted 11 times (scheduled for January 1991, 1992, 1993, 1998, 2000, 2001, 2002, 2003, 2004, 2005, and 2006) and denied six times (scheduled for January 1994, 1995, 1996, 1997, 1999, and 2007). Chapter 44 - A congressional advisory commission is a formal group often established for the purpose of obtaining advice, developing recommendations on complex policy issues, or finding solutions to contentious problems. Congressional commissions are usually established by statute, typically involve Members of Congress in the appointment process (either through direct service on the commission or by appointing or recommending
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candidates), and deliver their work product to Congress, often in the form of recommendations for legislative action. Most congressional commissions are temporary bodies that study particular policy problems or investigate events (policy commissions) and report their findings to Congress. Congress also occasionally creates commissions that commemorate a person or event, oversee ongoing functions of Congress, or serve diplomatic or interparliamentary functions. This chapter provides an overview of congressional advisory commissions and the general statutory structure of a congressional policy commission. For additional information, see CRS Report RL333 13, Congressional Commissions, Committees, Boards, and Groups: Appointment Authority and Membership, by Matthew E. Glassman. Chapter 45 - The Committee of the Whole House on the State of the Union, more often referred to as the "Committee of the Whole," is the House of Representatives operating as a committee on which every Member of the House serves. The House of Representatives uses this parliamentary device to take procedural advantage of a somewhat different set of rules governing proceedings in the Committee than those governing proceedings in the House. The purpose is to expedite legislative consideration. This chapter briefly reviews the history of the Committee of the Whole, describes the current procedure associated with it, and identifies its procedural advantages. Chapter 46 - The term "budget process," when applied to the federal government, actually refers to a number of processes that have evolved separately and that occur with varying degrees of coordination. This overview, and the accompanying flow chart, are intended to describe in brief each of the parts of the budget process that involve Congress, clarify the role played by each, and explain how they operate together. They include the President's budget submission, the budget resolution, reconciliation, sequestration, authorizations, and appropriations. Chapter 47 - Congressional oversight of policy implementation and administration has occurred throughout the history of the United States government under the Constitution. Oversight — the review, monitoring, and supervision of operations and activities — takes a variety of forms and utilizes various techniques. These range from specialized investigations by select committees to annual appropriations hearings, and from informal communications between Members or congressional staff and executive personnel to the use of extra congressional mechanisms, such as offices of inspector general and study commissions. Oversight, moreover, is supported by a variety of authorities — the Constitution, public law, and chamber and committee rules — and is an integral part of the system of checks and balances between the legislature and the executive. Chapter 48 - Among other provisions, H.R. 1433 (110th Cong.), the District of Columbia House Voting Rights Act of 2007, would expand the U.S. House of Representatives by two Members to a total of 437 Members. The first of these two new seats would be allocated to create a voting Member representing the District of Columbia, and the second seat would be assigned in accordance with 2000 census data and existing federal law, resulting in the addition of a fourth congressional seat in the state of Utah, which would be a temporary atlarge district. This chapter is limited to discussing only the constitutionality of the creation of an at-large congressional district. While it is not without doubt, based on the authority granted to Congress under the Constitution to regulate congressional elections and relevant Supreme Court precedent, it appears that federal law establishing a temporary at-large congressional district would likely be upheld as constitutional.
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Chapter 49 - Between 1986 and 2007, Congress enacted 167 private laws. Most dealt with immigration issues or claims against the government. Of these measures, 66% originated in the House, 9% had cosponsors, and 23% had companion bills. Most were enacted without amendment or need to resolve differences with the other house. This chapter examines the broad distinctions that appear among these measures in terms of their subject matter, introduction, sponsorship and cosponsorship, referral, method of consideration, amendment, and reconciling of differences between the chambers' versions of the bill. Unlike public law, which applies to public matters and deals with individuals only by classes, the provisions of private law apply to "one or several specified persons, corporations, [or] institutions." Private legislation is premised on the idea that general law cannot cover all situations equitably, and sometimes Congress must enact legislation to address unique problems that public law either created or overlooked. Private legislation has its foundation in the right to "petition the government for a redress of grievances guaranteed to all citizens by the First Amendment to the U.S. Constitution. While once much more common, in modem practice private laws are rare and designed to grant relief in those few situations where no other legal or administrative remedies are available to a petitioner. Chapter 50- The Senate's presiding officer typically does not have responsibility for proactively ensuring that matters under consideration comply with the rules. Instead, Senators may enforce the Senate's legislative rules and precedents by making points of order whenever they believe that one of those rules or precedents is, or is about to be, violated. Under some circumstances, a ruling by the presiding officer determines whether or not the point of order is well taken. Under others, the Senate itself decides the point of order, usually by majority vote. For more information on legislative process, see [http://www.crs.gov/ products/ guides/guidehome. shtml]. Senate Rule XX states in part that "[a] question of order may be raised at any stage of the proceedings, except when the Senate is voting or ascertaining the presence of a quorum, and, unless submitted to the Senate, shall be decided by the Presiding Officer without debate, subject to an appeal to the Senate." The rule goes on to confirm that the presiding officer may "submit any question of order for the decision of the Senate." Chapter 51 - The Congressional franking privilege allows Members of Congress to send official mail at government expense. During the 1 10th Congress, five pieces of legislation have been introduced to alter the franking privilege for Members. H.R. 2788 would require that all pieces of mail sent in mass mailings include a statement indicating the cost of producing and mailing the mass mailing. H.R. 2687 would prohibit mass mailings in the form of newsletters, questionnaires, or congratulatory notices. H.R. 1614, S. 936, and S. 1285 would prohibit Senators and Representatives from sending mass mailings during the period starting 90 days prior to any primary and ending on the day of the general election for any federal election to which the Member is a candidate. See CRS Report RS34085, Election Year Restrictions on Mass Mailings by Members of Congress: How H.R. 1614 / S. 936 / S. 1285 Would Change Current Law, and CRS Report RS227 10, Congressional Franking Privilege: An Overview, by Matthew E. Glassman. Chapter 52 - Prior to 1989, the Architect of the Capitol (AOC) was appointed by the President for an unlimited term without any direct action by the Senate. A provision in the FY1990 Legislative Branch Appropriations Act (P.L. 101-163) altered this selection procedure, requiring the President to nominate the AOC for a 10-year term, subject to the advice and consent of the Senate. Presently, a search is underway for a new Architect to
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replace Alan Hantman, FAIA, who left office on February 4, 2007. For additional information, please refer to CRS Report RL32820, Architect of the Capitol: Appointment, Duties, and Operations, by Mildred Amer. With the enactment of P.L. 101-163, 103 Stat. 1068, the AOC is now required to be appointed by the President, with the advice and consent of the Senate, for a 10-year term. Previous Architects were appointed by the President, without mandated congressional participation, for an unspecified term. The 1989 act also created a bicameral congressional advisory commission to recommend to the President at least three candidates for the AOC post. Chapter 53 - The Speaker usually does not take the initiative to prevent the House from considering proposals or taking actions that would violate the House's rules. Instead, whenever a Member believes that the House's legislative procedures are being violated in some way, or are about to be violated, that Member may insist that the House's procedures be enforced by making a point of order against the alleged violation. See [http://www.crs.gov/products/guides/guidehome.shtml] for more information on legislative process. Chapter 54 - The congressional franking privilege, which dates from 1775, allows Members to send official mail to their constituents at government expense. Congress, through legislative branch appropriations, reimburses the U.S. Postal Service for the franked mail it handles. Use of the frank is regulated by federal law, House and Senate rules, and committee regulations. Reform efforts during the past 20 years have reduced overall franking expenditures by almost 70%, from $113.4 million in FY1988 to $34.3 million in FY2006 (current dollars). This chapter provides an overview of the congressional franking privilege, its costs, and regulations on Member use of the frank. Chapter 55 - Since the mid-1970s, the House and Senate have convened early organization meetings in November or December of even-numbered years to prepare for the start of the new Congress in January. The purposes of these meetings are both educational and organizational. Educational sessions range from legislative procedures and staff hiring to current issues. Organizational sessions elect class officers, party leaders, and chamber officers; name committee representatives and other party officials; and select committee chairmen and often committee members. Such actions are officially ratified at the start of the new Congress. Chapter 56 - The House considers most important bills (and resolutions) on the floor by resolving into the Committee of the Whole House on the state of the Union. This is a committee on which all Representatives serve and which meets on the House floor. The House acts on a bill by resolving into Committee of the Whole (as it usually is called) first to debate the bill as a whole and subsequently to debate and vote on any amendments to the bill. At the end of this process, the Committee "rises" and reports the bill back to the House with whatever amendments the Committee of the Whole has approved. Then the House votes on these amendments and on final passage of the bill. The process of considering a bill in Committee of the Whole has two distinct stages: first, a period for general debate; and second, a process of debating and voting on amendments to the bill. What follows in this fact sheet focuses exclusively on the general debate phase; other fact sheets discuss the
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amendment process in Committee of the Whole. For more information on legislative process, see [http://www.crs.gov/products/guides/guidehome.shtm1].1 General debate is a period of time set aside for debating the merits of the bill as a whole, the state of current law on the subject of the bill, the need for new legislation, the various provisions of the bill, and possible amendments to it. This is a time for debate only. No amendments to the bill are in order, nor can Members offer any other motions that can affect the content of the bill or its fate. Chapter 57 - Congressional committee hearings may be broadly classified into four types: legislative, oversight, investigative, and confirmation. Hearings may be held on Capitol Hill or elsewhere (e.g., a committee member's district or state, or a site related to the subject of the hearing). These latter hearings are often referred to as field hearings. See [http://www.crs. gov/products/guides/guidehome.shtml] for more information on legislative process. All hearings have a similar formal purpose, to gather information for use by the committee in its activities. This information often is used to shape legislation, even when the hearing is not specifically a legislative hearing. All four types of hearings share common characteristics. The differences among them may appear indistinct, and their purposes sometimes overlap. For example, investigative hearings are sometimes seen as a type of oversight or may lead to legislation, and legislative hearings on a bill might also provide oversight opportunities. Chapter 58 - The House gives initial floor consideration to most major legislation in Committee of the Whole, a parliamentary device that is technically a committee of the House to which all Members belong. This fact sheet describes seven chief stages that occur in considering a measure under this procedure: resolving into committee, general debate, amendment under the five-minute rule, reporting to the House, House vote on amendments, motion to recommit, and final passage. For more information on legislative process, see [http://www.crs.gov/products/guides/guidehome.shtml]. House Rule XVIII prescribes procedures in Committee of the Whole, but these may be modified by a rule for considering a specific measure, reported by the Committee on Rules. Clause 3 of the Rule requires that revenue, appropriation, and authorization measures be considered initially in Committee of the Whole. Other measures may be considered there pursuant to a rule. Chapter 59 - The House and Senate must approve an identical version of a measure before it may be presented for the President's approval or veto. If the House and Senate approve differing versions of a measure, the differences must first be resolved. One way to do this is through an exchange of amendments between the houses. For more information on legislative process, see [http://www.crs.gov/products/guides/guidehome.shtml]. When the House or Senate passes a measure, it is sent to the other chamber for further consideration. If the second chamber passes the measure with one or more amendments, it is then sent back to the originating chamber. In modern practice, the second chamber typically substitutes its version of a measure as a single amendment to the measure as passed by the first chamber. The first chamber then may accept the amendment or propose its own further amendment. In this way, the measure may be messaged back and forth between the House
1
Stanley Bach, former Senior Specialist at CRS, originally wrote this report. Dr. Bach has retired. The listed author updated this report.
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and Senate in the hope that both houses will eventually agree to the same version of a measure. Chapter 60 - Title III of the Congressional Budget Act of 1974 (Titles I-IX of P.L. 93344, 88 Stat. 297-332), as amended, contains several points of order that are used to enforce congressional budget procedures and substantive provisions of a budget resolution. These points of order prohibit certain congressional actions and consideration of certain legislation. This fact sheet does not discuss points of order established by other portions of the Budget Act. For more information on the budget process, see [http://www.crs.gov/products/ guides/guidehome. shtml]. Budget Act points of order are not self-enforcing. In order to enforce a congressional budget rule, a Member must raise a point of order against the legislation violating it. When a point of order is raised against legislation that may violate a substantive provision of a budget resolution, a determination of whether the legislation would cause spending or revenue levels to be breached is based on estimates supplied by the Budget Committee of the appropriate chamber, under Section 312(a) of the Budget Act. Generally, when a point of order is sustained, the violating bill or amendment effectively fails and is not considered or the violating provision of a bill or amendment is stricken. Chapter 61 - For more than 150 years, messengers known as pages have served the United States Congress. Currently, approximately 100 young men and women from across the nation serve as pages at any given time. Pages must be high school juniors and at least 16 years of age. Several incumbent and former Members of Congress as well as other prominent Americans have served as congressional pages. Senator Daniel Webster appointed the first Senate page in 1829. The first House pages began their service in 1842. The first women were appointed as pages in 1971. Pages must be appointed and sponsored by a Member of Congress for one academic semester of the school year, or a summer session. They are appointed on a rotating basis pursuant to criteria set by the House and Senate leadership, which determines the Members eligible to sponsor a page. Academic standing is among the most important criteria used in the final selection of pages. Prospective pages are advised to contact their Senators or Representative to request consideration for a page appointment. For a longer discussion of the page system, see CRS Report RL33685, Pages of the United States Congress: History, Background Information, and Proposals for Change, by Mildred Amer. Chapter 62 - Engrossment, enrollment, and presentation of legislation are components of the legislative process that attest to the accuracy of bill texts, confirm House and Senate action, and confirm delivery of the bills to the President for review. For more information on legislative process, see [http://www.crs.gov/products/guides/guidehome.shtml].2 Chapter 63 - The Congressional Record is the most widely recognized published account of the debates and activities in Congress. The Record often reflects the intent of Congress in enacting legislation. This fact sheet is one of a series on the legislative process. Please see [http://www.crs.gov/products/guides/guidehome.shtml] for more information on the legislative process. The Constitution mandates that each house shall keep and publish a journal of its proceedings. Accordingly, the House and Senate Journals, which are summaries of floor 2
This report was written by Paul S. Rundquist, formerly a Specialist in American National Government at CRS. Dr. Rundquist has retired, but the listed author updated the report.
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proceedings, are the official accounts of congressional proceedings, but the Record is better known and the most useful. The Record is published daily by the Government Printing Office (GPO) when either house of Congress is in session. It is brought by GPO to the congressional post offices for early morning delivery to congressional offices as well as to both chambers. Each day's Record contains an account of the previous day's congressional activity. However, if a session extends past midnight, the Record is usually published in two parts with the first part printed the following day, and action after midnight included in the next day's edition. Copies of the Record are also available for Representatives inside the House chamber and for Senators on their desks in the Senate chamber. Extra copies may be obtained from the House Document Room (B18, Ford House Office), the Senate Library (B 15, Russell Senate Office Building), and the Senate Document Room (B04, Hart Senate Office Building). Chapter 64 - The annual budget resolution sets forth Congress's budget plan for a period of at least five fiscal years. It includes total levels of new budget authority, outlays, revenues, the deficit, and the public debt for each of the fiscal years covered. While the budget resolution does not become law, the Congressional Budget Act of 1974 (Titles I-IX of P.L. 93-344, 88 Stat. 297-332), as amended, provides for the enforcement of its provisions as they are implemented in subsequent annual appropriations bills, revenue measures, and other budgetary legislation. For more information on the budget process, see [http:/www.crs.gov/products/guides/guidehome. shtml]. Once a budget resolution is adopted, Congress may enforce its provisions, through points of order, at several levels: the total levels of spending and revenues, the level of resources allocated to committees, and the level of resources allocated to the appropriations subcommittees. Congress also may use reconciliation legislation to enforce the direct spending and revenue provisions of a budget resolution (see CRS Report 98-814, Budget Reconciliation Legislation: Development and Consideration). Chapter 65 - The Constitution and the rules of the House and Senate identify various means that citizens, subordinate levels of government, and other branches of the federal government may use to communicate formally with either or both houses of Congress. The House and Senate use written messages to communicate with the other. For more information on legislative process, see [http://www.crs.gov/products/guides/guidehome.shtml]. Chapter 66 - When a conference committee completes its work successfully, the committee presents and explains its agreements in two documents: first, a conference report; and second, a joint explanatory statement, often called a statement of managers.3 The conference report presents the formal legislative language on which the conference committee has agreed. The joint explanatory statement explains the various elements of the conferees' agreement in relation to the positions that the House and Senate had committed to the conference committee. Two copies of each document must be signed by a majority of the House conferees and by a majority of the Senate conferees. One pair of the signed documents is retained by each house's conferees. Thus, a conferee who supports the conference agreement signs four signature sheets, two for the conference report and two for the joint explanatory statement. Of
3
This report was written by Stanley Bach, formerly a Senior Specialist in the Legislative Process at CRS. The listed author updated the report.
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course, conferees who do not support the agreement are not expected to sign any of the signature sheets. Chapter 67 - Congress divides its legislative, oversight, and internal administrative tasks among more than 200 committees and subcommittees. Within assigned areas, these functional subunits gather information; compare and evaluate legislative alternatives; identify policy problems and propose solutions; select, determine, and report measures for full chamber consideration; monitor executive branch performance (oversight); and investigate allegations of wrongdoing. For more information on legislative process, see [http://www. crs.gov/products/guides/guidehome. shtml]4 The 1946 Legislative Reorganization Act (60 Stat. 812) sets the framework for the modern committee system. The act organized the Senate and House committees along roughly parallel lines, but divergences have emerged over time. Within the guidelines of chamber rules, each committee adopts its own rules addressing organizational, structural, and procedural issues. As a consequence, there is considerable variation among panels and across chambers. Chapter 68 - One or both houses of Congress may formally express opinions about subjects of current national interest through freestanding simple or concurrent resolutions (called generically "sense of the House," "sense of the Senate," or "sense of the Congress" resolutions). These opinions may also be added to pending legislative measures by amendments expressing the views of one or both chambers. This fact sheet5 identifies the various forms these expressions may take and the procedures governing such actions. See [http://www.crs.gov/products/guides/guidehome.shtml] for more information on legislative process. Chapter 69 - The Constitution requires that proposed laws must pass the House and Senate in absolutely identical form before they can be sent to the White House for presidential consideration. Different procedural techniques are used to achieve "bicameral ignition," but the one usually employed for controversial measures is to establish a conference committee. Composed of conferees chosen from each chamber — usually from the committee(s) that reported the legislation — the conference committee's job is to iron out differences when the House and Senate pass dissimilar versions of the same bill. Because conference committees make significant policy decisions, it is little surprise that these bicameral units are sometimes called "the third house of Congress." To understand the work of conference committees, it is useful to discuss (1) several features common to inter-chamber negotiations, (2) how conferences are organized, and (3) the authority of conferees. Worth noting is that many lawmakers anticipate that certain legislation will eventually reach the conference committee stage, and they will take purposeful pre-conference actions to bolster their negotiating leverage with the other body. For instance, either chamber may adopt floor amendments that may be used as "bargaining material" in conference. Chapter 70 - House and Senate committees publish a variety of documents dealing with legislative and other policy issues, investigations, and internal committee matters. These include committee hearings; legislative, investigative, conference committee, and committee 4
This report was originally written by Thomas P. Carr, formerly an Analyst in American National Government at CRS. The listed author has updated this report. 5 This report was written by Paul S. Rundquist, formerly a Specialist in American National Government at CRS. Dr. Rundquist has retired, but the listed author updated the report.
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activity reports; calendars; and committee prints. These publications are usually available from the issuing committee, the House or Senate document rooms, and increasingly, from committee websites as well. For more information on legislative process, see [http://www.crs.gov/products/guides/guidehome. shtml]. Chapter 71 - Amendments are usually considered not in the House, but in the Committee of the Whole, a parliamentary device designed to expedite the amendment process. For example, in the House, Members are generally recognized under the "hour rule;" in the Committee of the Whole, they are recognized to speak under the "five-minute rule." A quorum in the House is 218; in the Committee of the Whole, 100. This chapter is a companion to CRS Report 98-426, Amendments on the House Floor: Summary of Major Restrictions. Chapter 72 - Under Rule XX, clause 3, the practice of "pairing" involves — under certain procedural circumstances — a Member who is absent during a vote on the House floor arranging with a Member on the opposite side of a specific question who is present during a vote to announce that the Member who is present is forming a "pair" with the absent Member, thus allowing the absent Member to have recorded how he would have voted had he been present. See [http://www.crs.gov/products/guidehome.shtml] for more information on legislative process. This particular type of pair, where one Member is absent and the other present for the vote, is referred to as a "live pair," although the term no longer appears in the House Rules. Charles W. Johnson, the House Parliamentarian Emeritus, has written, "Although rarely used, the announcement of live pairs, which involves an agreement between one Member who is present and voting and another on the opposite side of the question, who is absent, is still permitted under Rule XX, clause 3." (See House Practice: A Guide to the Rules, Precedents and Procedures of the House [Washington: GPO, 2003], p. 926.) Chapter 73 - The Congressional Budget Act of 1974 (Titles I-IX of P.L. 93-344, 88 Stat. 297-332) established the concurrent budget resolution as the centerpiece of the congressional budget process. The annual budget resolution is an agreement between the House and Senate on a budget plan for the upcoming fiscal year and at least the following four fiscal years. As a concurrent resolution, it is not sent to the President for his signature and thus does not become law. The budget resolution, however, provides the framework for subsequent legislative action on the annual appropriations bills, revenue measures, debt- limit legislation, reconciliation legislation (if required), and any other budgetary legislation. Consequently, the President may be drawn into negotiations with Congress on the budget resolution. For more information on the budget process, see [http://www.crs.gov/products/guides/guidehome. shtml]. Chapter 74 - Expedited or "fast-track" legislative procedures are special procedures that Congress adopts to promote timely committee and floor action on a specifically defined type of bill or resolution.6 For example, House and Senate consideration of budget resolutions and reconciliation bills are governed by fast-track procedures. Congress includes expedited procedures in bills that are enacted into law — the Congressional Budget Act, as amended, and the Medicare Prescription Drug, Improvement and Modernization Act, for example — instead of adopting them as part of the standing rules of the House or Senate. However, these procedures have the same force and effect that they would have if they were incorporated in 6
This report was originally written by Stanley Bach, formerly a Senior Specialist in the Legislative Process at CRS.
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the standing rules of the House or Senate. For more information on legislative process, see [http://www.crs.gov/products/guides/guidehome.shtml]. The regular legislative procedures of the House and Senate can be time-consuming, and they provide no guarantee that every bill or resolution that is introduced will be considered quickly, or at all, in committee and on the floor. In fact, most bills are never considered, and only a small fraction are passed by the House and Senate and enacted into law. Chapter 75 - An annual appropriations act generally consists of two parts — paragraphs providing funding, and general provisions focusing on non-funding as well as funding issues. Generally, each paragraph corresponds to a unique budget account and provides a lump- sum amount for a group of activities such as agency salaries and expenses, and may include restrictions or conditions that apply to that funding. Some general provisions establish restrictions and conditions which apply to a single account, multiple accounts, the entire bill, or a department or agency funded in the bill. General provisions may be of a policy or operational character. For more information on federal budget process, see [http://www.crs.gov/products/guides/guidehome. shtml]. Chapter 76 - A primary avenue for exercising Congress’s power of the purse is the authorization and appropriation of federal spending to carry out government activities. While the power over appropriations is granted to Congress by the U.S. Constitution, the authorization- appropriation process is derived from House and Senate rules. The formal process consists of two sequential steps: (1) enactment of an authorization measure that may create or continue an agency or program as well as authorize the subsequent enactment of appropriations; and (2) enactment of appropriations to provide funds for the authorized agency or program. See [http://www.crs.gov/products/guides/guidehome.shtml ] for more information on budget process. The authorizing and appropriating duties in this two-step process are carried out by a division of labor within the committee system. Legislative committees, such as the House Committee on Armed Services and the Senate Committee on Commerce, Science, and Transportation, are responsible for authorizing legislation related to the agencies and programs under their jurisdiction; most standing committees have authorizing responsibilities. The Appropriations Committees of the House and Senate have jurisdiction over appropriations measures. As discussed below, House and Senate rules generally prohibit the encroachment of these committee responsibilities by the authorizers and appropriators. Chapter 77 - In each chamber of Congress, four forms of legislative measure may be introduced (or, for resolutions, submitted) and acted on: bills, joint resolutions, concurrent resolutions, and resolutions of one house ("simple resolutions"). In addition, under the Constitution the Senate acts on two forms of executive business: nominations and treaties. This fact sheet provides a tabular comparison of the formal characteristics and uses of these six different kinds of business. For more information on legislative process, see [http://www.crs.gov/products/guides/guidehome. shtml]. The rules of the two houses include references to the four types of measure, but generally take for granted the distinctions among them, which have developed in the course of congressional history. Today, a bill or joint resolution is used when the purpose is to make law; a joint resolution is used also for the purpose of proposing an amendment to the Constitution. The other two forms of resolution are used for internal business of Congress itself. (For specific examples of how each form of measure is used, see CRS Report 98-706, Bills and Resolutions: Examples of How Each Kind is Used.) Executive business is so called
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because it is transmitted by the President, who must obtain the advice and consent of the Senate before the nomination or treaty becomes effective. Chapter 78 - When Congress seeks to pass a law, it uses a bill or joint resolution, which must be passed by both houses in identical form, then presented to the President for his approval or disapproval. To regulate its own internal affairs, or for other purposes where authority of law is not necessary, Congress uses a concurrent resolution (requiring adoption by both houses) or a simple resolution (requiring action only in the house of origin). More detailed descriptions appear in CRS Report 98-728, Bills, Resolutions, Nominations, and Treaties: Origins, Deadlines, Requirements, and Uses. Congress may use each of the four forms of measure it employs for a variety of purposes. This fact sheet identifies the most prevalent uses of each and, as appropriate, gives brief explanations of these uses. For more information on legislative process, see [http://www. crs.gov/products/guides/guidehome. shtml]. Chapter 79 – This chapter includes a typical example of a simple open rule that the House Committee on Rules may report to govern House floor action on a bill that is not otherwise privileged for consideration. This resolution has been divided into five parts. See [http://www.crs.gov/products/guides/guidehome.shtml] for more information on legislative process. The first part of the rule makes the bill in order for floor consideration by authorizing the Speaker to transform the House into the Committee of the Whole to consider that bill. Without this authority, a motion for the same purpose would not be in order; it would not be privileged to interrupt the regular daily order of business on the House floor. The second part waives a reading of the bill. It also governs general debate on the bill by setting the amount of time for the debate, by dividing control of this time, usually between the chairman and ranking minority member of the committee that reported the bill, and by requiring that all general debate be relevant to the subject of the bill. Chapter 80 – This fact sheet provides an overview of the sunset concept, its initiation in the states, and congressional consideration of federal sunset measures.
In: Congress of the U.S: Commitees, Rules and Procedures ISBN 978-1-60456-416-7 Editor: Sela G. Thomason © 2009 Nova Science Publishers, Inc.
Chapter 1
RESOLVING LEGISLATIVE DIFFERENCES IN CONGRESS: CONFERENCE COMMITTEES AND AMENDMENTS BETWEEN THE HOUSES* Elizabeth Rybicki SUMMARY The Constitution requires that the House and Senate approve the same bill or joint resolution in precisely the same form before it is presented to the President for his approval or veto. To this end, both houses must pass the same measure and then attempt to reach agreement about its provisions. The House and Senate may be able to reach agreement by an exchange of amendments between the houses. Each house has one opportunity to amend the amendments from the other house, so there can be Senate amendments to House amendments to Senate amendments to a House bill. House amendments to Senate bills or amendments are privileged for consideration on the Senate floor; Senate amendments to House bills or amendments generally are not privileged for consideration on the House floor. In practice, the House and Senate often dispose of amendments between the houses by unanimous consent. Alternatively, the House and Senate can disagree to each other’s positions on a bill and then agree to create a conference committee to propose a package settlement of all their disagreements. Most conferees are drawn from the standing committees that had considered the bill initially. The House or Senate may vote to instruct its conferees before they are appointed, but such instructions are not binding. Conferees generally are free to negotiate in whatever ways they choose, but eventually their agreement must be approved by a majority of the House conferees and a majority of the Senate conferees. The conferees are expected to address only the matters on which the House and Senate have disagreed. They also are expected to resolve each disagreement within the *
This is an edited, excerpted and augmented edition of a CRS Report for Congress publication, Order Code 98-696 GOV, dated October 25, 2007.
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scope of the differences between the House and Senate positions. If the conferees cannot reach agreement on an amendment, or if their agreement exceeds their authority, they may report that amendment as an amendment in true or technical disagreement. On the House and Senate floors, conference reports are privileged and debatable, but they are not amendable. The Senate has a procedure to strike out portions of the conference agreement that are considered, under Senate rules, to be “out of scope material” or “new directed spending provisions.” The House also has a special procedure for voting to reject conference report provisions that would not have been germane to the bill in the House. After agreeing to a conference report, the House or Senate can dispose of any remaining amendments in disagreement. Only when the House and Senate have reached agreement on all provisions of the bill can it be enrolled for presentation to the President.
INTRODUCTION The process of resolving the legislative differences that arise between the House of Representatives and the Senate is one of the most critical stages of the legislative process. It is also potentially one of the most complicated. Each chamber continues to be governed by its own rules, precedents, and practices; but at this stage, each house also must take into account the preferences and, to some extent, the procedures of the other. This chapter1 summarizes the procedures the two houses of Congress use most frequently to resolve their legislative differences. It is based upon an interpretation of the rules and published precedents of the House and Senate, and an analysis of the application of these rules and precedents in recent practice. It bears emphasizing that this chapter is not exhaustive nor is it in any way an official statement of House or Senate procedures. It may serve as a useful introduction or general guide, but it should not be considered an adequate substitute for a study of House and Senate rules and precedents themselves, or for consultations with the parliamentarians of the House and Senate on the meaning and possible application of the rules and precedents. Readers may wish to study the provisions of the rules — especially House Rule XXII — and examine the applicable precedents as explained in House Practice: A Guide to the Rules, Precedents, and Procedures of the House, especially pp. 307-342 (on “Conferences Between the Houses”) and pp. 8 13-839 (on “Senate Bills; Amendments Between the Houses”), and in Riddick’s Senate Procedure (Senate Document No. 101-28), especially pp. 126-143 (on “Amendments Between Houses”) and pp. 449-493 (on “Conferences and Conference Reports”).
THE NEED FOR RESOLUTION Before Congress can submit a bill or joint resolution to the President for his approval or disapproval, the Senate and the House of Representatives must agree on each and every provision of that measure.2 It is not enough for both houses to pass versions of the same measure that are comparable in purpose but that differ in certain technical or even minor details; the House and Senate
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must agree on identical legislative language. Nor is it enough for the two chambers to approve separate bills with exactly the same text; the House and Senate both must pass the same bill. In sum, both chambers of Congress must pass precisely the same measure in precisely the same form before it can become law.3 Each of these requirements — agreement on the identity of the measure (e.g., H.R. 1 or S. 1), and agreement on the text of that measure — is considered in turn in the following sections of this chapter.
SELECTION OF THE MEASURE Because both chambers must pass the same measure before it can become law, at some point during the legislative process the House must act on a Senate bill or the Senate must act on a House bill. Congress usually meets this requirement without difficulty or controversy. In some cases, however, selecting the measure may require some parliamentary ingenuity and can have policy and political consequences. After either house debates and passes a measure, it sends (or “messages”) that bill to the other chamber. If the second house passes the first house’s bill without any amendments, the legislative process is completed: both houses have passed the same measure in the same form.4 If the second house passes the bill with one or more amendments, both chambers have acted on the same measure; now they must resolve the differences between their respective versions of the text if the measure is to become law. In most cases, either the House or the Senate can be the first chamber to act. However, the Constitution requires that all revenue measures originate in the House, and the House traditionally has insisted that this prerogative extends to appropriations as well as tax measures.5 Thus, the House normally acts first on such a measure, and, consequently, it is a House-numbered bill or joint resolution that Congress ultimately presents to the President for enacting appropriations or tax laws. In some cases, the proponents of a measure may decide that one house or the other should act first. For example, a bill’s supporters may first press for floor action in the chamber where they think the measure enjoys greater support. They may hope that success in one house may generate political momentum that will help the measure overcome the greater opposition they expect in the second chamber. Alternatively, one house may defer floor action on a bill unless and until it is passed by the other, where the measure is expected to encounter stiff opposition. The House leadership, for example, may decide that it is pointless for the House to invest considerable time, and for Representatives to cast possibly unnecessary and politically difficult votes, on a controversial bill until after an expected Senate filibuster on a comparable Senate bill has been avoided or overcome. As these considerations imply, major legislative proposals frequently are introduced in both houses — either identical companion bills or bills that address the same subject in rather different ways. If so, the appropriate subcommittees and committees of the House and Senate may consider and report their own measures on the same subject at roughly the same time. Thus, when one house passes and sends a bill to the other, the second chamber may have its own bill on the same subject that has been (or is soon to be) reported from committee and
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available for floor consideration. In such cases, the second chamber often acts initially on its own bill, rather than the bill received from the other house.6 This is particularly likely to happen when the committee of the second house reports a bill that differs significantly in approach from the measure passed by the first chamber. The text selected for floor consideration generally sets the frame of reference within which debate occurs and amendments are proposed. In most cases, the House or Senate modifies, but does not wholly replace, the legislative approach embodied in the bill it considers. It is usually advantageous, therefore, for a committee to press for floor consideration of its approach, rather than the approach proposed by the other house. In large part for this reason, the House (or the Senate) often acts on its own bill even though it has already received the other chamber’s bill on the same subject. Under these circumstances, however, it would not be constructive for the House to pass its bill and then send it to the Senate. If the House were to do so, then each chamber would have in its possession a bill passed by the other, but both chambers would not yet have acted on the same measure. To avoid this potential problem, the second house often acts initially on its own bill, and then it also acts on the other chamber’s bill on the same subject. The usual practices of the House and Senate for doing so differ slightly. The House customarily debates, amends, and passes the House bill and, immediately thereafter, takes up the counterpart Senate bill. The floor manager then moves to “strike out all after the enacting clause” of the Senate bill (the opening lines of every bill — “Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled”) and replace the stricken text with the full text of the House bill as just passed. The House often agrees by unanimous consent to consider the Senate bill and approves the House substitute routinely. The Senate bill, as amended, then is passed by voice vote or without objection, and the House lays its own bill on the table (which disposes of it adversely). In some cases, the special rule under which a House bill is considered also includes provisions for such action on the Senate bill. For instance, a special rule may state: After the passage of H.R. 1, it shall be in order to take from the Speaker’s table the bill S. l and to move to strike out all after the enacting clause of the said Senate bill and insert in lieu thereof the provisions contained in H.R. 1 as passed by the House. In this way, the House actually passes two bills on the same subject and with identical provisions, but it is the Senate bill (which both chambers now have passed) that is the subject of further action. The Senate acts in a comparable fashion, although it usually does not pass its own bill. Instead, the Senate debates and amends its bill, and agrees to third reading and engrossment of the bill, as amended.7 The Senate then takes up the House bill by unanimous consent, strikes out all after the enacting clause, inserts the amended text of the Senate bill, and passes the House bill, as it has been amended by the Senate’s amendment in the nature of a substitute. The Senate bill that was debated and amended is never actually passed; after passing the House bill, the Senate indefinitely postpones further proceedings on its own bill. If the first house’s bill has been referred to committee in the second chamber and is still there, it is first necessary to discharge the committee from further consideration of the bill. This also is normally accomplished routinely, either by unanimous consent or, in the House, pursuant to the provisions of a special rule. To avoid the need for this action, the Speaker often leaves a Senate bill on “the Speaker’s table,” instead of referring it to the appropriate
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House committee, if there is reason to expect that the House will soon act on a companion House bill. Similarly, a House bill may be taken up on the Senate floor without first being referred to committee when a companion Senate bill has been reported from committee and is on the Senate’s legislative calendar. By these devices, the House and Senate arrange to act on the same bill, even if they have passed that measure with fundamentally different texts. In most cases, these arrangements are noncontroversial and routine. Under some circumstances, however, complications and difficulties can arise. The House operates under a rule which requires that all amendments must be germane to the measure being considered; the Senate does not.8 Unless the Senate imposes a germaneness requirement on itself by unanimous consent (which it often does), most measures are subject to whatever nongermane floor amendments Senators wish to offer. Consequently, the Senate may select a House bill on one subject as a convenient “vehicle” and amend it to include provisions on other, unrelated subjects. Sometimes the use of unrelated legislative vehicles is accepted by both the House and the Senate as a useful, or even necessary, device to cope with different political and parliamentary conditions prevailing in the two chambers. Although such situations are relatively unusual, problems sometimes arise that make neutral vehicles useful for resolving them. During the 95th Congress, for example, President Carter submitted a massive proposal for major new national energy legislation. The Democratic leadership of the House chose to consider the President’s entire program in a single bill, and eventually the House passed H.R. 8444. In the Senate, on the other hand, the Democratic majority leadership concluded that an omnibus bill would inspire a filibuster that probably could not be broken; consequently, the Senate debated and amended five separate bills that collectively dealt with the same subjects as H.R. 8444. A dilemma now arose. If the Senate passed its five bills and sent them to the House, the House would face different bills on different aspects of the President’s program, which was precisely the situation the House had sought to avoid by consolidating the various proposals in H.R. 8444. Yet if the Senate attempted to pass the House bill, the feared filibuster was likely to develop. To resolve the dilemma, the Senate selected four neutral vehicles: minor House bills that had been awaiting Senate action. To each of these bills the Senate added the texts of one or more of its energy bills as well as provisions of the single House bill (H.R. 8444). It was on these bills that the House and Senate eventually resolved their differences over national energy legislation, even though the four bills originally had been for the relief of Jack R. Misner and Joe Cortina, and to suspend import duties on competition bobsleds and luges for the Lake Placid Winter Olympic Games and on certain doxorubicin hydrochloride antibiotics. In this instance, then, selecting the measure was complicated by the differing situations in the two houses, and was arranged through the use of four unrelated vehicles.9 Resorting to such convoluted procedures is unusual. Normally, the selection of the measure is arranged routinely, as the House and Senate proceed toward the more difficult task of resolving their differences over the substance, not the form, of legislation.
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TWO METHODS OF RESOLUTION Once the House and Senate have passed different versions of the same measure, there are basically two methods they can use to resolve the differences between their versions. One method involves a conference committee — a panel of members representing each house that attempts to negotiate a version acceptable to both chambers. Most major bills are sent to conference committees. The other method makes a conference committee unnecessary by relying instead on amendments between the houses — Senate amendments to the House position, or House amendments to the Senate position, or both. The two houses shuttle the measure back and forth between them, each chamber proposing an alternative to the position of the other or insisting on its own position, in the hope that both houses eventually will agree on the same position. The essential nature of each method can be described relatively simply. However, potential complications abound. Occasionally, some combination of the two methods may be used. For example, the House and Senate may begin the process of resolving their differences by amending each other’s amendments. Then they may decide to go to conference if the first method is not totally, or even partially, successful. Alternatively, the two houses may decide immediately to create a conference committee that is able to resolve some, but not all, of the differences between their two versions. If so, the two chambers may accept whatever agreements the conferees have reached, and then attempt to deal with the remaining disagreements through an exchange of amendments between the houses. Under some circumstances, the process can become even more complicated. Certain patterns of action are most common, but the possible variations make the procedures at this stage of the legislative process the most difficult to predict with any assurance. Moreover, either house may refuse to act at any time and at any stage of this process, and if that chamber remains adamant in its refusal to act, the measure dies. In general, the House or Senate cannot take any action by either method unless it is in formal possession of the “papers” — the official copies of the measure and whatever amendments, motions, and accompanying messages have been approved by the House and Senate. In attempting to resolve their differences, the two chambers act sequentially, not simultaneously. Although most major legislation is considered by a conference committee, amendments between the houses are best discussed first.
AMENDMENTS BETWEEN THE HOUSES The need to resolve differences arises when one house passes a measure that the second chamber subsequently passes with one or more amendments.10 It is these amendments that create the differences between the two houses. The differences may be resolved by one chamber accepting the amendments of the other or by proposing new amendments that the other house agrees to accept. Within limits to be discussed, the measure may be sent back and forth between the House and Senate, each house amending the amendments of the other, in the hope that one chamber
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will agree to the proposals from the other. When the amending opportunities are exhausted, one house must accept the position of the other or the bill can die for lack of agreement. Alternatively, at any stage during this process, either house can request a conference, thereby proposing to use the other method for resolving their differences. (Then, if the conference is not totally successful, it may be necessary to return once again to amendments between the houses.) The second chamber’s amendments to the bill are the text that is subject to amendments between the houses, and that text may be amended in two degrees.11 Assume that the House has passed H.R. 1 and the Senate has passed the same bill with an amendment. When the Senate sends the bill back to the House, the House may amend the Senate amendment — technically, the House concurs in the Senate amendment with a House amendment. This House amendment to the Senate amendment is a first-degree amendment. When the Senate receives from the House the bill with the House amendment to the Senate amendment, the Senate may concur in the House amendment to the Senate amendment. If the Senate does so, the differences between the chambers have been resolved. Alternatively, the Senate may amend the House amendment — technically, the Senate concurs in the House amendment to the Senate amendment with a further Senate amendment. This further Senate amendment is a second-degree amendment. When the bill and the accompanying papers (that is, the various House and Senate amendments and messages) are now returned to the House, that chamber may not propose a further amendment. That would be a prohibited amendment in the third degree.12 The House may concur in the final Senate amendment, in which case the differences are resolved, or it may disagree to the Senate amendment. (Note that this is the first point at which disagreement has been expressed; a later section of this chapter discusses the importance of reaching the stage of disagreement.) If the House disagrees to the final Senate amendment (or to any Senate amendment at some earlier stage), the Senate may recede from its amendment and concur in the last position offered by the House (thereby achieving agreement), or the Senate may insist on its amendment. In turn, if both chambers are adamant, the House may insist on its disagreement, the Senate may adhere to its amendment, and the House finally may adhere to its disagreement.13 If this stage is reached, the bill is almost certain to die unless one house or the other recedes from its last position. (This same sequence of events can begin in the Senate, with the subsequent actions of the chambers reversed.) The two houses may reach agreement at any stage of this process if one chamber concurs in the amendment of the other or recedes from its own amendment. Alternatively, stalemate could be reached more quickly — for instance, if the chambers refuse to alter their original positions and proceed directly through the stages of disagreement, insistence, and adherence, bypassing the intermediate stages at which they could offer new proposals in the form of firstand second-degree amendments between the houses. Fortunately, the House and Senate rarely reach the point of insistence and then adherence. It is even rather unusual for there to be second-degree amendments between the houses (for instance, for the House to concur in the Senate amendment to the House amendment to a Senate bill with a further House amendment). Most often, the House and Senate either reach agreement at an earlier stage or they choose instead to submit their differences to a conference committee.
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Elizabeth Rybicki
CONSIDERATION OF SENATE AMENDMENTS BY THE HOUSE The House may consider on the floor a House-passed measure with Senate amendments under several circumstances: (1) instead of sending the bill to a conference committee, (2) in the process of sending it to conference, or (3) after the measure has been considered by a conference. This section discusses House action on Senate amendments either instead of or before consideration in conference. House actions on Senate amendments after conference are discussed in later sections of this chapter on amendments in true and technical disagreement. A bill that the House has passed and that the Senate has amended and returned to the House usually remains at “the Speaker’s table” until it is taken up again on the House floor. It may be referred to a House committee at the discretion of the Speaker, but referral to committee is not mandatory and rarely occurs. The Speaker is most likely to refer the bill to committee if the Senate amendments are major in scope and nongermane in character, and especially if the Senate amendments would fall within the jurisdiction of a House committee that had not considered the bill originally. 14 At this stage of the legislative process, the bill and the Senate amendments to it are not privileged for floor consideration by the House — in other words, it is not in order for the House to consider the Senate amendments to the bill — unless the Senate amendments do not include any authorization, appropriation, or revenue provisions that House rules require to be considered in Committee of the Whole. The bill and Senate amendments become privileged for House floor consideration only after the House has reached the stage of disagreement. The only motion that can be made on the House floor at this stage is a motion to go to conference with the Senate. This motion can take two forms. If the Senate has passed a House bill with Senate amendments, the motion proposes that the House disagree to the Senate amendments and request or agree to a conference with the Senate. If the Senate has disagreed to House amendments to a Senate bill and returned the bill to the House, the motion proposes instead that the House insist on its amendments and request or agree to a conference. In either case, the motion is entertained at the Speaker’s discretion, and may be made only at the direction of the committee (or committees) with jurisdiction over the subject of the measure. The same result is achieved far more often by unanimous consent. If the Senate amendments require consideration in Committee of the Whole, it is not in order to move to concur in the Senate amendments (thereby reaching agreement), or to move to concur in the Senate amendments with House amendments (thereby proposing a new House position to the Senate). However, such actions frequently are taken by unanimous consent. The House floor manager may ask unanimous consent, for instance, to take the bill, H.R. 1, with Senate amendments thereto from the Speaker’s table and concur in the Senate amendments. Another Member, generally a minority-party member of the committee of jurisdiction, often reserves the right to object, usually only for the purpose of asking the floor manager to explain the purpose of the request and the content of the Senate amendments. Their discussion usually establishes that the Senate amendments are either desirable or minor and, in any case, are acceptable to the Representatives who know and care the most about the measure. The reservation of objection then is withdrawn; the unanimous consent request is accepted, and the differences between the House and Senate are thereby resolved. In similar fashion, the House may — again, by unanimous consent — concur in some or all of the Senate amendments with House amendments.
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It bears repeating that, if there is objection to a unanimous consent request to concur in Senate amendments (with or without House amendments), no motion to that effect can be made if the amendments require consideration in Committee of the Whole. However, at least two alternatives are available. First, the Speaker may recognize the floor manager to move to suspend the rules and concur in the Senate amendments (again, with or without House amendments). Motions to suspend the rules may be considered, at the discretion of the Speaker, on a Monday or Tuesday, or Wednesday. The Speaker also may entertain motions to suspend the rules on other days by unanimous consent or pursuant to a special rule. Such a motion is debatable for forty minutes, it is not amendable, and it requires support from twothirds of the Members present and voting. Second, the Rules Committee may report, and the House may agree to, a special rule making in order a motion to concur (with or without amendments). In fact, the special rule even may be drafted in such a way that the vote to agree to the rule is also the vote to concur in the Senate amendments. Such a resolution is known as a self-executing rule, and may take the following form: Resolved, That immediately upon the adoption of this resolution the bill (H.R. 1), together with the Senate amendments thereto, is taken from the Speaker’s table to the end that the Senate amendments be, and the same are hereby, agreed to. There are additional rules and precedents concerning the consideration of certain Senate amendments in Committee of the Whole, the germaneness of House amendments to Senate amendments, and the relative precedence of the motion to concur and the motion to concur with amendments. However, these rules and precedents are not often invoked at this stage of House proceedings because the measure and the Senate amendments are either sent directly to conference or they are disposed of by a means that waives these rules and precedents — unanimous consent, suspension of the rules, or special rules. Some of these possibilities are far more likely to arise during House floor action on Senate amendments in true or technical disagreement, and they are discussed in later sections on those subjects.
CONSIDERATION OF HOUSE AMENDMENTS BY THE SENATE When the Senate receives a bill with House amendments, it normally is held at the desk. The motion to proceed to consideration of the amendments is privileged and, therefore, not debatable. (The motion to proceed normally is debatable.) Moreover, the consideration of these amendments suspends, but does not displace, the pending or unfinished business. Paragraph 3 of Rule VII provides: The Presiding Officer may at any time lay, and it shall be in order for a Senator to move to lay, before the Senate, any bill or other matter sent to the Senate by the President or the House of Representatives for appropriate action allowed under the rules and any question pending at that time shall be suspended for this purpose. Any motion so made shall be determined without debate. Normally, the majority leader asks the presiding officer to lay before the Senate the House message on a bill; such a message may state that the House has passed a certain Senate bill with amendments that are stated in the message. The message also may inform the Senate that the House has requested a conference. Once the Senate has agreed to consider House amendments, the House amendments themselves are amendable.
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After some explanation of the Senate bill and the House amendments, the majority leader or the majority floor manager of the bill usually moves or asks unanimous consent (1) that the Senate concur in the House amendments, or (2) that the Senate concur in the House amendments with Senate amendments, or (3) that the Senate disagree to some or all of the House amendments and either request or agree to a conference with the House. Any of these motions is debatable and, therefore, is subject to being filibustered. Whichever proposal is made, however, it is likely to be accepted by the Senate without serious opposition. Thus, the Senate may act on House amendments at virtually any time, even if a major bill is under consideration, both because the House amendments are privileged business and also because they normally are disposed of quickly (so that the Senate’s consideration of the pending bill is not interrupted for long). It usually is not necessary to call up the House amendments by use of a nondebatable motion; they usually are considered by unanimous consent. But unanimous consent probably is made easier to obtain by the knowledge that the nondebatable motion is in order (and, therefore, that extended debate is not possible). These Senate practices effectively obviate a variety of parliamentary options that are available for acting on House amendments. For example, a motion to agree to a House amendment has precedence over (and may be offered while there is pending) a motion to disagree and go to conference. But a motion to agree to the House amendment with an amendment has precedence over the motion to agree, and a motion to refer the House amendments to a committee of the Senate has precedence over both the motion to agree and the motion to disagree. Fortunately, the complexities that these options can create arise very infrequently because House amendments normally are not called up on the Senate floor until after a process of consultations and negotiations that is so characteristic of the Senate. The majority and minority floor managers can be expected to consult with each other and to decide if the House amendments are acceptable or if the two Senators can agree on amendments to those House amendments. Whatever agreement the floor managers reach also is discussed with other interested Senators in the hope of achieving general concurrence. If such concurrence is reached, it is reflected in an expeditious floor decision to agree to the House amendments, with or without amendments. If concurrence cannot be reached, the Senators involved normally decide to resolve the disagreements among themselves (as well as with the House) in conference, rather than through a complicated series of motions and amendments offered on the Senate floor.
THE INFORMAL ALTERNATIVE TO CONFERENCE If the House and Senate versions of a measure are submitted to conference, the conference committee must meet formally and, if it resolves some or all of the differences between the houses, prepare both a conference report and a joint explanatory statement. To avoid these and other requirements, the two chambers may use the process of sending amendments between the houses as an informal alternative that achieves much the same purpose and result as would a conference committee. The purpose of a conference committee is to negotiate a settlement of the legislative differences between the two chambers. But these negotiations do not have to take place in the
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official setting of a conference committee meeting. They also can occur through informal discussions among the most interested Representatives and Senators and their staffs. If such informal discussions are successful, their results can be embodied in an amendment between the houses. As the second house nears or reaches completion of floor action on a measure, the staffs of the respective House and Senate committees are likely to be comparing the two versions of the bill and seeking grounds for settling whatever differences exist. After initial staff discussions, the House and Senate committee leaders themselves may become involved. If these informal and unofficial conversations appear productive, they may continue until a tentative agreement is reached, even though no conference committee has yet been created. If the tentative agreement proves acceptable to other interested Representatives and Senators, a conference committee may be unnecessary. Instead, when the bill with the second house’s amendments has been returned to the first chamber, the majority floor manager may, under the appropriate rules or practices of that house, call up the bill and propose that the House or Senate (as the case may be) concur in the second chamber’s amendments with some amendments. He or she then describes the differences between the House and Senate versions of the measure and explains that the proposed amendments represent a compromise that is agreeable to the interested members of both houses. The floor managers may express their confidence that, if the first house accepts the amendments, the other chamber also will accept them. If the first house does agree to the amendments, the second chamber then considers and agrees to them as well, under its procedures for considering amendments of the “other body.” In this way, the differences between the House and Senate are resolved through the kind of negotiations for which conference committees are created, but without resort to a formal conference committee.
THE STAGE OF DISAGREEMENT Since the purpose of conference committees is to resolve legislative disagreements between the House and Senate, it follows that there can be no conference committee until there is disagreement — until the House and Senate formally state their disagreement to each other’s positions. A chamber reaches this stage either by formally insisting on its own position or by disagreeing to the position of the other house, and so informing the other house. Once the House or Senate reaches the stage of disagreement, it cannot then agree to (concur in) a position of the other chamber, or agree with an amendment, without first receding from its disagreement. The stage of disagreement is an important threshold. Before this threshold is reached, the two chambers presumably are still in the process of reaching agreement. Thus, amendments between the houses, as an alternative to conference, are couched in terms of one chamber concurring in the other’s amendments, or concurring in the other’s amendments with amendments. For example, when the House concurs in Senate amendments with House amendments, the House does so because it does not accept the Senate amendments — in fact, it disagrees with them. But the House does not state its disagreement explicitly and formally
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at this stage because crossing the threshold of disagreement has significant procedural consequences, especially in the House. Whereas House amendments are always privileged in the Senate, most Senate amendments are not privileged in the House before the House has reached the stage of disagreement. Moreover, the order of precedence among certain motions is reversed in the House (but not in the Senate) after the stage of disagreement has been reached. Before the stage of disagreement, the order of precedence among motions in both chambers favors motions that tend to perfect the measure further; after the stage of disagreement in the House, the order of precedence is reversed, with precedence being given to motions that tend to promote agreement between the chambers. Before the stage of disagreement, for example, a motion to concur with an amendment has precedence over a motion to concur; after the stage of disagreement in the House, a motion to recede and concur has precedence over a motion to recede and concur with an amendment. The precedence among motions before and after the stage of disagreement can become important during the process of exchanging amendments between the houses. It is most likely to matter after a conference committee has reported and the House and Senate are considering amendments in true or technical disagreement. For this reason, a more detailed discussion of the subject is reserved to the sections on such amendments.
ARRANGING FOR A CONFERENCE If the differences between the House and Senate cannot be resolved through the exchange of amendments between the houses, two possibilities remain. First, stalemate can lead to the death of the legislation if both chambers remain adamant. Or second, the two houses can agree to create a conference committee to discuss their differences and seek a mutually satisfactory resolution. In fact, major bills usually are sent to a conference committee, either after an unsuccessful attempt to resolve the differences through amendments between the houses or, more often, without such an attempt having even being made. The process of arranging for a conference can begin as soon as the second house passes the bill at issue, either with one or more amendments to parts of the measure or with a single amendment in the nature of a substitute that replaces the entire text approved by the first chamber. The second house then may simply return the bill, with its amendments, to the first chamber if there is reason to believe that the first house might accept the amendments, or that amendments between the houses can be used successfully as an informal alternative to conference. It also may do so if the second house wishes to act first on an eventual conference report, because the chamber that asks for a conference normally acts last on the conference report. Alternatively, and more commonly, the second house may pass the bill and immediately insist on its amendments and also request a conference with the first chamber. By insisting on its amendments, the second chamber reaches the stage of disagreement. The bill, the second house’s amendments, and the message requesting a conference, then are returned to the first house. The first house is not obliged to disagree to the second chamber’s amendments and agree to the requested conference. The first house also has the options, for example, of refusing to act at all or concurring in the second chamber amendments, with or without
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amendments. When one chamber requests a conference, however, the other house normally agrees to the request. If the second chamber just returns the bill and its amendments to the first house without insisting on its amendments, the first house may disagree to the amendments and request a conference. The bill, the amendments, and the message requesting the conference then are returned to the second chamber, which usually insists on its amendments (thereby reaching the stage of disagreement) and agrees to the conference. Thus, there are essentially two direct routes to conference. (There are more indirect routes, of course, if an attempt is first made to resolve the differences through an exchange of amendments.) The second house may begin the process by insisting on its amendments and requesting the conference. If this does not occur, the first house then may begin the process by disagreeing to the second chamber’s amendments and requesting the conference itself. The first route is likely to be followed when the need for a conference is a foregone conclusion. However, strategic considerations also may influence how the Senate and House agree to go to conference, especially in view of the convention that the chamber which asks for the conference normally acts last on the conference report. With this in mind, proponents of the legislation may prefer one route to the other. For example, House or Senate conferees can avoid the possibility of facing a motion in one house to recommit the conference report (with or without instructions) if they have arranged for the other house to act first on the report.15 By the same token, if Senate opponents are expected to filibuster the conference report, proponents may prefer for the Senate to agree to a House request for a conference, so that the Senate will act first on the report. This arrangement avoids compelling Representatives to cast difficult votes for or against a conference report that may not reach a vote in the Senate. On the other hand, a bill’s supporters could prefer that the House agree to the conference and then vote first on the report, with the hope that a successful House vote might improve the prospects for later success on the Senate floor.
SELECTION OF CONFEREES After either house requests or agrees to a conference, it usually proceeds immediately to select conferees, or managers as they also may be called. The selection of conferees can be critically important, because it is this group — sometimes a small group — of Representatives and Senators who usually determine the final form and content of major legislation. In the House, clause 11 of Rule I authorizes the Speaker to appoint all members of conference committees, and gives him certain guidelines to follow: The Speaker shall appoint all select, joint, and conference committees ordered by the House. At any time after an original appointment, the Speaker may remove Members, Delegates, or the Resident Commissioner from, or appoint additional Members, Delegates, or the Resident Commissioner to, a select or conference committee. In appointing Members, Delegates, or the Resident Commissioner to conference committees, the Speaker shall appoint no less than a majority who generally supported the House position as determined by the Speaker, shall name Members who are primarily responsible for the legislation, and shall, to the fullest
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Elizabeth Rybicki extent feasible, include the principal proponents of the major provisions of the bill or resolution passed or adopted by the House.
These guidelines carry weight as admonitions but they necessarily give the Speaker considerable discretion, and his exercise of this discretion cannot be challenged on the floor through a point of order. In the Senate, the presiding officer is almost always authorized to appoint “the managers on the part of the Senate.” Should the Senate fail to give the presiding officer this authority, however, Senators would elect their conferees. A motion to elect certain Senators as conferees is both debatable and amendable. Before the formal announcement of conferees in each chamber, a process of consultation takes place that vests great influence with the chairman and the ranking minority member of the committee (and sometimes the subcommittee) that had considered the bill originally. These Representatives and Senators almost always serve as conferees. Furthermore, they usually play an influential, and often a controlling, role in deciding the number of conferees from their respective chambers, the party ratio among these conferees, and which of their committee colleagues shall be appointed to the conference committee. In the House, the Speaker often accepts without change the list developed by the House committee leaders; the presiding officer in the Senate always does so. If the bill at issue had been considered by more than one committee in either house, all the involved chairmen and ranking minority members from that chamber normally participate in determining its roster of conferees, and the conferees usually are drawn from both or all of those committees. In such cases, the party leaders in each house are more likely to become involved in the selection process — in determining the total number of House or Senate conferees and the division of conferees between or among the committees of jurisdiction, as well as in choosing individual members to serve. From time to time, the Speaker also exercises his authority to appoint a Representative who offered a key successful floor amendment, even if he or she is not on the committee(s) that reported the legislation. In some cases — and especially in cases of multiple committee jurisdiction — House or Senate conferees may be appointed for limited purposes: for example, only for the consideration of Title I of the House version, or only for the consideration of a particular (and possibly nongermane) Senate amendment. Such conferees are expected to limit their participation in the conference to consideration of the matters for which they are appointed. This practice protects the preponderant influence in conference of the appropriate House and Senate standing committees. Each house determines for itself the size of its delegation to the conference committee. The House and Senate need not select equal numbers of conferees, and they frequently do not. However, unequal numbers of House and Senate managers do not affect the formal power of either house in conference decisions. The conference report requires approval by a majority of the House conferees and a majority of the Senate conferees, rather than a majority of all conferees. Each house usually appoints an odd number of conferees to avoid tie votes.
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INSTRUCTING CONFEREES After the House or Senate decides to go to conference (either by requesting the conference or agreeing to a request from the other house), its conferees usually are appointed immediately. Between these two steps, however, both houses have an opportunity (although usually only a momentary opportunity) to move to instruct the conferees.16 For example, the managers may be instructed to insist on the position of their house on a certain matter, or even to recede to the position of the other house. Instructions are not binding in either house. They are only admonitions, or advisory expressions of position or preference. No point of order lies in either the House or the Senate against a conference report on the ground that conferees did not adhere to the instructions they received. In the Senate, a motion to instruct is debatable and amendable. In the House, such a motion is debated under the one-hour rule, and a germane amendment to the instructions is in order only if the House does not order the previous question during or at the end of the first hour of debate. In neither house can conferees be instructed to take some action that exceeds their authority. In the House, clause 7 of Rule XXII also bars instructions that “include argument.” Only one valid motion to instruct is in order in the House before its conferees are named, whether or not the motion is agreed to; but if a motion to instruct is ruled out of order, another motion to instruct may be made. Under the precedents of the House, a member of the minority party is entitled to recognition to move to instruct. The Speaker normally looks first to senior minority party members of the committee that reported the measure at issue. This recognition practice can be used to try to control the instructions that are proposed; for example, instructions on one subject may be precluded if the ranking minority member seeks recognition to offer a motion to instruct on another subject.17 In the House, but not in the Senate, motions to instruct also are in order after House conferees have been appointed but have failed to report an agreement.18 Clause 7(c)(1) of House Rule XXII provides in part: A motion to instruct managers on the part of the House, or a motion to discharge all managers on the part of the House and to appoint new conferees, shall be privileged — (A) after a conference committee has been appointed for 20 calendar days and 10 legislative days without making a report... .
By precedent, more than one proper motion to instruct is in order when made pursuant to this clause, and the minority party does not enjoy preferential recognition in offering such motions. According to clause 7(c)(2), the Speaker “may designate a time in the legislative schedule on that legislative day for consideration” of the motion to instruct.
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RESTRICTIONS ON THE AUTHORITY OF CONFEREES In principle, there are significant restrictions on the kinds of policy agreements that House conferees can accept. In practice, however, these restrictions are not as stringent as they might seem at first. Because conference committees are created to resolve disagreements between the House and Senate, the authority of House conferees is limited to the matters in disagreement between the two houses. House conferees have no authority to change matters that are not in disagreement — that is, either matters that appear in the House and Senate versions of the measure in identical form, or matters that were not submitted to the conference in either the House or the Senate version. Furthermore, as House conferees consider each matter in disagreement, their authority is limited by the scope of the differences between the House and Senate positions on that matter. The House’s managers may agree on the House position, the Senate position, or some middle ground. But they may not include a provision in a conference report that does not fall within the range of options defined by the House position at one extreme and the Senate position at the other. If, for example, the House proposes to appropriate $1 billion for a certain purpose and the Senate proposes $2 billion instead, the House conferees may agree on $1 billion or $2 billion or any intermediate figure. But they may not agree on a figure that is less than $1 billion or more than $2 billion. To do so would exceed the scope of the differences between the House and Senate positions on that matter in disagreement. The concept of “scope” relates to specific differences between the House and Senate versions of the same measure, not to the implications or consequences of these differences. Thus, House conferees on a general appropriations bill may agree on the higher (or lower) of the House and Senate positions on each appropriation item, even though the sum of their agreements is higher (or lower) than the total sum proposed in either the House or the Senate version of the bill (unless the two versions explicitly state such a total). Also, if one house proposes to amend some existing law and the other chamber does not, the scope of the differences over this matter generally is bounded by the proposed amendments, on the one hand, and the pertinent provisions of existing law, on the other. Thus, the House conferees may agree on the proposed amendments or on alternatives that are closer to existing law. Thus, there are significant restrictions on the authority of House conferees: their authority is restricted by the scope of the differences between the House and Senate over the matters in disagreement between them.19 However, it is far easier to make this statement than to apply it in all cases. It becomes much more difficult to define the scope of the differences when the differences are qualitative, not quantitative as in the example above. Moreover, how difficult it is to define the scope of the differences also depends on how the second chamber to act on the measure has cast the matters in disagreement. If one house takes up a measure from the other and passes the measure with a series of amendments to the first chamber’s text, then the matters in disagreement in conference are cast in terms of two or more discrete amendments approved by the second house to pass the bill. These amendments usually are numbered for convenient reference. The two versions of the measure can be compared side by side to identify the provisions that are identical in both versions and those that are the subject of disagreements. Therefore, it is possible to identify both the matters in disagreement and the House and Senate positions on each of them.
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However, the second chamber that acts on a measure typically casts its version in the form of an amendment in the nature of a substitute for the entire text passed by the first house. In such cases, only one amendment is submitted to conference, even though that single amendment may encompass any number of specific differences between the House and Senate versions of the measure. In fact, the text of the bill as passed by one house and the text of the other house’s amendment in the nature of a substitute may embody wholly different approaches to the subject of the measure. The two versions may be organized differently and may address the same subject in fundamentally different ways. Second house substitutes make it much harder, if not impractical, to specifically identify each matter in disagreement and the scope of the differences over that matter. When a second chamber substitute is in conference, therefore, the conferees must have somewhat greater room for maneuver. Technically, the House and Senate are in disagreement over the entire text of the measure; substantively, the policy disagreements may be almost as profound. In such cases, the conferees resolve the differences between the House and Senate by creating a third version of the measure — a conference substitute for both the version originally passed by the first house and the amendment in the nature of a substitute approved by the second house. This latitude may be necessary, but it also means that the conference substitute could take the form of a third and new approach to the subject at hand — an approach that had not been considered on the floor of either house. To inhibit such a result, clause 9 of House Rule XXII states that: Whenever a disagreement to an amendment has been committed to a conference committee, the managers on the part of the House may propose a substitute that is a germane modification of the matter in disagreement. The introduction of any language presenting specific additional matter not committed to the conference committee by either House does not constitute a germane modification of the matter in disagreement. Moreover, a conference report may not include matter not committed to the conference committee by either House and may not include a modification of specific matter committed to the conference committee by either or both Houses if that modification is beyond the scope of that specific matter as committed to the conference committee.
Notwithstanding this specificity, determining whether a conference substitute includes some new “matter” is far more difficult than determining whether the conferees’ agreement on an appropriation for a program falls within the scope of the differences between the funding levels originally proposed by the House and Senate. If the House conferees have exceeded their authority in any one respect in agreeing to a conference report, that report as a whole is tainted and so is subject to a point of order on the House floor.20 However, there are at least three reasons why it is relatively unusual for a point of order to be made and sustained against a conference report. First, House conferees are aware of the limits within which they are to negotiate, and they usually try not to exceed their authority. Second, conferees frequently are presented with second chamber substitutes and, in those cases, they have somewhat greater discretion in the agreements they can reach. Third, even if the House managers propose a conference report that exceeds their authority, there are several ways in which they can protect their report against being subject to a point of order on the House floor. If the conferees were negotiating over separate numbered
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amendments and their agreement concerning one or more of the amendments is beyond their authority, they can report those amendments back to the House and Senate as amendments in technical disagreement. However, conferees may not report back in disagreement on part of an amendment in the nature of a substitute. Alternatively, the House can approve a conference report by a two-thirds vote under suspension of the rules, a procedure which does not allow points of order to be made on the floor. Finally, and perhaps most important in current practice, the House Rules Committee may propose that the House approve a special rule waiving any or all points of order against a conference report and against its consideration. Even if a conference report is ruled out of order, it may then be possible to propose precisely the same agreements that were contained in the report in the form of amendments between the houses (if the amendments are not in the third degree and do not contain nongermane matter). The Senate’s rules and precedents embody roughly the same principles regarding restrictions on the authority of its conferees. Paragraphs 2 and 3 of Senate Rule XXVIII state, in part, that: 2. (a)
Conferees shall not insert in their report matter not committed to them by either House, nor shall they strike from the bill matter agreed to by both Houses. (b) If matter which was agreed to by both Houses is stricken from the bill a point of order may be made against the report, and if the point of order is sustained, the report is rejected or shall be recommitted to the committee of conference if the House of Representatives has not already acted thereon. (c) If new matter is inserted in the report, a point of order may be made against the conference report and it shall be disposed of as provided under paragraph 4. 3. (a) In any case in which a disagreement to an amendment in the nature of a substitute has been referred to conferees — (1) it shall be in order for the conferees to report a substitute on the same subject matter; (2) the conferees may not include in the report matter not committed to them by either House; and (3) the conferees may include in their report in any such case matter which is a germane modification of subjects in disagreement.
Historically, the Senate has interpreted its rules and precedents affecting the content of conference reports in ways that grant conferees considerable latitude in reaching agreements with the House. According to Riddick’s Senate Procedure, for example, a “conference report may not include new ‘matter entirely irrelevant to the subject matter,’ not contained in the House- or Senate-passed versions of a measure as distinct from a substitute therefor.”21 And regarding conference substitutes, Senate precedents state that, “in such cases, they [the conferees] have the entire subject before them with little limitation placed on their discretion, except as to germaneness, and they may report any germane bill.”22 Under current practice, the Senate takes a commonsense approach to deciding whether new matter is sufficiently relevant to constitute “a germane modification of subjects in disagreement.” The authority of Senate conferees is further limited by a rule agreed to in the 110th Congress.23 Under paragraph 8 of the new Senate Rule XLIV, a Senator can raise a point of
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order against provisions of a conference report if they constitute “new directed spending provisions.” Paragraph 8 defines a “new directed spending provision” as: ... any item that consists of a specific provision containing a specific level of funding for any specific account, specific program, specific project, or specific activity, when no specific funding was provided for such specific account, specific program, specific project, or specific activity in the measure originally committed to the conferees by either House.
Paragraph 8 of Senate Rule XLIV applies only to provisions of conference reports that would provide for actual spending. In other words, it applies only to discretionary and mandatory spending provisions and not to authorizations of appropriations.24 Discretionary spending is provided in appropriations acts, and generally funds many of the programs, agencies, and routine operations of the federal government. Mandatory spending, also referred to as direct spending, is provided in or controlled by authorizing law, and generally funds entitlement programs, such as Social Security and Medicare.25 The Senate can waive both of these restrictions on the content of conference reports by a three-fifths vote of Senators duly chosen and sworn (60 Senators assuming no vacancies). The process for waiving a point of order, as well as the effect of a successful point of order raised under either of these rules, are discussed in a later section of this chapter on floor consideration of conference reports.
CONFERENCE PROCEDURES AND REPORTS Rules of procedure guide and constrain the legislative activities of both the House and Senate. So it is striking that there are almost no rules governing procedure in conference. The members of each conference committee can select their own chairman. They also can decide for themselves whether they wish to adopt any formal rules governing such matters as debate, quorums, proxy voting, or amendments, but usually they do not. The only rules imposed by the two houses governing conference committee meetings concern approval of the conference report and the openness of meetings to all conferees and to the public. A majority of the House managers and a majority of the Senate managers must approve and sign the conference report. Decisions are never made by a vote among all the conferees combined. All votes take place within the House delegation and within the Senate delegation. This is why there is no requirement or necessity for the two houses to appoint the same number of conferees; five Senate conferees, for example, enjoy the same formal collective power in conference as 25 House conferees. Until the mid-1970s, conference meetings were almost always closed to the public; now they are open unless a specific decision is made to close part or all of a meeting. Paragraph 8 of Senate Rule XXVIII states that: Each conference committee between the Senate and the House of Representatives shall be open to the public except when managers of either the Senate or the House of Representatives in open session determine by a rollcall vote of a majority of those managers present, that all or part of the remainder of the meeting on the day of the vote shall be closed to the public.
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The comparable House rule is even more stringent. Clause 12 of House Rule XXII requires a majority vote on the House floor to close part or all of a conference meeting. In other words, House conferees cannot vote to close a conference committee meeting unless they have been authorized to do so by a specific rollcall vote of the House. This difference between House and Senate rules has not been a source of public contention because efforts to close conferences normally are made only when they must deal with national security matters. When House managers want the authority to close part or all of a formal conference meeting, they usually offer a motion to this effect at the time the House arranges to go to conference. In the 1 10th Congress, the House and Senate agreed to additional requirements for conference committee meetings. According to new language added to clause 12 of House Rule XXII, managers “should endeavor to ensure” that meetings only occur if every House manager has been given notice and an opportunity to attend. The House rule also explicitly states that all matters in disagreement are open to discussion at an conference meeting. If a point of order is made and sustained on the House floor that conferees met in violation of clause 12 (or that they never met at all), the conference report is rejected and the House is considered to have requested a further conference with the Senate. Similarly, the Senate agreed in the 1 10th Congress that it was the “sense of the Senate” that conferees should hold “regular, formal meetings of all conferees that are open to the public,” that conferees should be given “adequate notice” of such meetings, and that all conferees should be given an opportunity to “participate in full and complete debates” of the matters before the conference.26 The new conference committee meeting guidelines responded to the complaints of some conferees in the 108th and 109th Congresses that they were excluded from conference committee meetings. Other Members argued at the time that bicameral negotiators commonly hold informal discussions, in small or large groups, and that a highly flexible negotiation process is necessary to reach a compromise. It is not clear what impact the new requirements will have on conference committee practice because the chambers have yet to determine what constitutes a “meeting” of the conference under the new provisions. Few other rules govern conference proceedings nor do conference committees often vote to establish their own rules. Instead, they generally manage without them. This absence of rules reflects the basic nature of the conference committee as a negotiating forum in which the negotiators should be free to decide for themselves how to proceed most effectively. In some cases, conferences are rather formal. One delegation puts a proposal on the table; the other delegation considers it and responds with a counter proposal. In other cases, conferences resemble free-form discussions in which the issues and the matters in disagreement are discussed without any apparent agenda or direction until the outlines of a compromise begin to emerge. In recent years, conferences on massive omnibus bills have even created “sub-conferences” to seek agreements which then can be combined into a single conference report. Sometimes customary practices develop among members of House and Senate committees who meet with each other regularly in conference. For example, they may alternate the chairmanship from one conference to the next between the committee or subcommittee chairmen from each house. Conference bargaining also can be facilitated by preliminary staff work. Staff may prepare side-by-side comparisons of the House and Senate versions so that the conferees can understand more easily how the two houses dealt with the same issues or problems.27 Furthermore, senior staff may engage in preliminary negotiations
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among themselves, seeking agreements acceptable to their principals, so that the members themselves can concentrate on the more intractable disagreements. When the conferees reach full agreement, staff prepare a conference report which indicates how each amendment in disagreement has been resolved. For example, the report may propose that the Senate recede from certain of its amendments to the House bill, that the House recede from its disagreement to certain other Senate amendments, and that the House recede from its disagreement to the remaining Senate amendments and concur in each with a House amendment (the text of which is made part of the report). When the conferees have considered a single amendment in the nature of a substitute, the report proposes that the House which originated the bill recede from its disagreement to the other house’s substitute, and concur in that amendment in the nature of a substitute with a substitute amendment that is the new version of the bill on which the conference committee has agreed. Two copies of the conference report must be signed by a majority of House conferees and a majority of Senate conferees. No additional or minority views may be included in the report. From time to time, a manager’s signature may be accompanied by an indication that he or she does not concur in the conference agreement on a certain numbered amendment. This does not make the report subject to a point of order in the House so long as a majority of House conferees have agreed on each numbered amendment. House rules require that House conferees be given an opportunity to sign the conference agreement at a set time and place. At least one copy of the final conference agreement must be made available for review by House managers with the signature sheets. The conference report itself is not the most informative document, because it does not describe the nature of the disagreements that confronted the conferees. Therefore, the rules of both houses require that a conference report be accompanied by a joint explanatory statement. According to paragraph 6 of Senate Rule XXVIII, this statement is to be “sufficiently detailed and explicit to inform the Senate as to the effect which the amendments or propositions contained in such report will have upon the measure to which those amendments or propositions relate.” Clause 7(e) of House Rule XXII contains a comparable requirement. Normally, this joint explanatory statement summarizes the House, Senate, and conference positions on each amendment in disagreement (or each provision, in the case of second chamber and conference substitutes). The statement also is prepared in duplicate and signed by majorities of both House and Senate conferees. The house that agreed to the conference normally acts first on the conference report.28 Because this is an established practice, not a requirement of either House or Senate rules, the order of consideration can be reversed, if that is strategically advantageous. For example, the House may wish to delay acting on a report until after the Senate has voted on it because of the possibility that the report may fall victim to a Senate filibuster. Alternatively, Senate conferees may agree that the House should act first if the report is likely to enjoy greater support in the House, in the belief (or hope) that the House vote will increase the prospects for approving the report in the Senate.29 Also, the first house to consider a conference report has the option of voting to recommit the report to conference. If and when either house agrees to the report, the effect of that vote is to discharge that house’s conferees, so there no longer is a conference committee to which the report can be recommitted. Therefore, the second house to consider the report does not have the option of recommitting it; it only may accept or reject the report. Sometimes, therefore, the supporters of a bill arrange for one house or the other to act first on the
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conference report in order to avoid the possibility of a successful recommittal motion. Whatever the case may be, the conferees must see to it that the house they want to act first takes the papers out of the conference. If conferees cannot agree on any of the amendments before them, or if they cannot agree on all matters encompassed by one house’s bill and the other’s substitute, they may report back in disagreement. The House and Senate then can seek a resolution of the differences either through a second conference or through an exchange of amendments and motions between the houses. Conferees also may report in total disagreement if they have reached an agreement on a bill and a second chamber substitute which, in some respect, violates their authority. In such a case, their disagreement is technical, not substantive. After the House receives or the Senate agrees to the report in disagreement, the conferees’ actual agreement is presented as a floor amendment to the amendment in disagreement, at which point considerations of the conferees’ authority no longer apply. Alternatively, the conferees may submit their report to the House and Senate even though it violates their authority in one or more respects, and then, in the House, the Rules Committee can propose and the House can adopt a resolution protecting the report against points of order.
FLOOR CONSIDERATION OF CONFERENCE REPORTS A conference report may be presented or filed at almost any time the House or Senate is in session, but not when the Senate is in executive session or when the House has resolved into Committee of the Whole. A conference report is unlikely to be considered immediately because both the House and Senate have layover and availability requirements that apply to conference reports. In the House, conference reports are subject to a three day “layover” requirement. Clause 8(a) of Rule XXII prohibits consideration of a conference report until the third day (usually excluding weekends and legal holidays) after the report and joint explanatory statement has been available in the Congressional Record. These requirements do not apply during the last six days of a session.30 In addition, copies of the report and the statement must be available for at least two hours before consideration of the report begins. Clause 2(b) applies the same requirements and conditions to amendments reported from conference in disagreement. However, the House may waive these restrictions by adopting a resolution reported from the Rules Committee for that purpose.31 A conference report that meets the availability requirements is considered as having been read when called up for consideration in the House. If a report does not meet one or more of the requirements but is called up by unanimous consent, it must be read. However, the House normally agrees by unanimous consent to have the joint explanatory statement read instead of the report, and then it also agrees to dispense with the reading of the statement. Conference reports are highly privileged in the House, and may be called up at almost any time that another matter is not pending. When called up, the report is considered in the House (not in Committee of the Whole), under the one-hour rule. Clause 8(d) of Rule XXII requires that this hour be equally divided between the majority and minority parties, not necessarily between proponents and opponents. The two floor managers normally explain the agreements reached in conference and then yield time to other Members who wish to speak
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on the report. If both floor managers support the report, a Member who opposes it is entitled to claim control of one-third of the time for debate. Before a second hour of debate can begin, the majority floor manager moves the previous question. If agreed to, as it invariably is, this motion shuts off further debate and the House immediately votes on agreeing to the conference report. Any points of order against a conference report in the House must be made or reserved before debate on the report begins (or before the joint explanatory statement is read). A conference report can be protected against one or more points of order if the Rules Committee reports and the House adopts a resolution waiving the applicable rules, or if the report is considered under suspension of the rules. In the Senate, paragraph 1 of Senate Rule XXVIII requires that a conference report must be “available on each Senator’s desk” before the Senate may consider it. In addition, under paragraph 9 of that same rule it is not in order to vote on the adoption of a conference report unless it has been available to Members and the general public for at least 48 hours before the vote. This availability requirement can be waived by three-fifths of Senators duly chosen and sworn (60 Senators if there are no vacancies). It can also be waived by joint agreement of the Majority and Minority Leader in the case of a significant disruption to Senate facilities or to the availability of the internet. Under the rule, a report is considered to be available to the general public if it is posted on a congressional website or on a website controlled by the Library of Congress or the Government Printing Office. The report and accompanying statement normally are not printed in the Senate section of the Record if they have been printed in the House section. Conference reports also normally are printed only as House documents. Conference reports are privileged in the Senate. The motion to consider a report on the Senate floor is in order at most times,32 and it is not debatable. The Senate’s usual practice is to take up conference reports by unanimous consent at times arranged in advance among the floor and committee leaders. Under a standing order the Senate adopted at the close of the 106th Congress in December 2000, the reading of a conference report no longer is required if the report “is available in the Senate.” When considered on the Senate floor, a conference report is debatable under normal Senate procedures; it is subject to extended debate unless the time for debate is limited by unanimous consent or cloture, or if the Senate is considering the report under an expedited procedures established by law (such as the procedures for considering budget resolutions and budget reconciliation measures under the Budget Act). Paragraph 7 of Senate Rule XXVIII states that, if time for debating a conference report is limited (presumably by unanimous consent), that time shall be equally divided between the majority and minority parties, not necessarily between proponents and opponents of the report. Consideration of a conference report by the Senate suspends, but does not displace, any pending or unfinished business; after disposition of the report, that business again is before the Senate. A point of order may be made against a conference report at any time that it is pending on the Senate floor (or after all time for debate has expired or has been yielded back, if the report is considered under a time agreement). If a point of order is sustained against a conference report on the grounds that conferees exceeded their authority, either by including “new matter” (Rule XXVIII) or “new directed spending provisions”(paragraph 8 of Rule XLIV) in the conference report, then there is a special procedure established in the 1 10th Congress to strike out the offending portion(s) of the conference recommendation and continue
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consideration of the rest of the proposed compromise.33 Under the new procedure, a Senator can make a point of order against one or more provisions of a conference report. If the point of order is not waived (see below), the presiding officer rules whether or not the provision is in violation of the rule. If a point of order is raised against more than one provision, the presiding officer may make separate decisions regarding each provision. Senate rules provide further that when the presiding officer sustains a point of order against a conference report on the grounds that it violates either the prohibition of “new matter” or “new directed spending provisions,” the matter is to be stricken from the conference recommendation. After all points of order raised under this procedure are disposed of, the Senate proceeds to consider a motion to send to the House, in place of the original conference agreement, a proposal consisting of the text of the conference agreement minus the “new matter” or “new directed spending provision” that was stricken.34 Amendments to this motion are not in order. The motion is debatable “under the same debate limitation as the conference report.”35 In short, the terms for consideration of the motion to send to the House the proposal without the offending provisions are the same as those that would have applied to the conference report itself. If the Senate agrees to the motion, the conference recommendation as altered by the deletion of the “new matter” or “new directed spending provision” would be returned to the House in the form of an amendment between the houses. The House would then have an opportunity to act on the amendment under the regular House procedures for considering Senate amendments discussed in earlier sections of this chapter. Senate rules also create a mechanism for waiving these restrictions on conference reports. Senators can move to waive points of order against one or several provisions, or they can make one motion to waive all possible points of order under either Rule XXVIII or Rule XLIV, paragraph 8. A motion to waive all points of order is not amendable, but a motion to waive points of order against specific provisions is. Time for debate on a motion to waive is limited to one hour and is divided equally between the majority leader and the minority leader, or their designees. If the motion to waive garners the necessary support, the Senate is effectively agreeing to keep the matter that is potentially in violation of either rule in the conference report. The rules further require a three-fifths vote to sustain an appeal of the ruling of the Chair and limit debate on an appeal to one hour, equally divided between the party leaders or their designees. The purpose of these requirements is to ensure that either method by which the Senate could choose to apply these rules, through a motion to waive or through an appeal of the ruling of the Chair, requires a three-fifths vote of the Senate (usually 60 Senators). A simple majority (51 Senators if there are no vacancies and all Senators are voting) cannot achieve the same outcome. Conference reports may not be amended on the floor of either house. Conferees are appointed to negotiate over the differences between the versions of the same bill that the two houses have passed; the delegations return to their respective chambers with identical recommendations in the form of a report that proposes a package settlement of all these differences. The House and Senate may accept or reject the settlement but they may not amend it directly. If conference reports were amendable, the process of resolving bicameral differences would be far more tortuous and possibly interminable. As noted in previous sections, the house that agrees to the request for a conference normally acts first on the report. The first chamber to act may vote to agree or not agree to the
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report, or it may agree to a preferential motion to recommit the report to conference, with or without non-binding instructions. Successful recommittal motions are quite unusual, in part because such an action implies that the conferees should and could have reached a more desirable compromise. If the first house agrees to the report, the second house only has the options of approving or disapproving the report. At this stage, the report cannot be recommitted. A vote by either house to agree to a conference report has the effect of automatically discharging its conferees and disbanding the conference committee; thus, there is no conference committee to which the second house could recommit the report. The defeat of a conference report in either house may kill the legislation, but only if no further action is taken, such as requesting a second conference or proposing a new position through an amendment between the houses. For lack of time, a second conference may not be practical near the end of a Congress, when many conference reports are considered. The vote to agree to a conference report normally completes that house’s action on the measure, assuming the other house also approves the report. However, some conference reports, especially those on general appropriations bills, may be accompanied by one or more amendments in either true or technical disagreement. Furthermore, House rules include special procedures for coping with conference report provisions, originating in the Senate, that would not have been germane floor amendments to the bill in the House. These possibilities are discussed in separate sections that follow.
AMENDMENTS IN TRUE DISAGREEMENT passed a version of the legislation and has entrusted the responsibility for resolving its differences with the other house to members who usually were actively involved in developing and promoting the measure. Nonetheless, conferees sometimes cannot reach agreement on all the amendments in disagreement. In such a case, the conferees may return to the House and Senate with a partial conference report dealing with the amendments on which they have reached agreement, but excluding one or more amendments that remain in disagreement. The result is complicated and potentially confusing procedural possibilities that, fortunately, do not often arise in current practice. The house that agreed to the conference first debates and votes on the partial conference report. After the report is approved, the reading clerk reads or designates the first amendment in disagreement, and the majority floor manager offers a motion to dispose of the amendment. When this process begins in the House, for example, the floor manager may move that the House insist on its disagreement to a Senate amendment. Agreeing to this motion implies that the House adamantly supports its original position and that the House wishes the Senate to recede from its amendment. Alternatively, the floor manager may move that the House either (1) recede from its disagreement to the Senate amendment and concur in that amendment, or (2) recede and concur with a House amendment. In the latter case, this House amendment (which must be germane to the Senate amendment) may be the position that the House managers had been advocating in conference, or it may be a new compromise position they have developed. By agreeing to this motion, the House supports the negotiating position of its conferees and asks the Senate to concur in this new House amendment.
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After the House disposes of the first amendment in disagreement, it acts in similar fashion on each of the other amendments that were not resolved in conference. The House then sends all the papers to the Senate with a message describing its actions. If the Senate agrees to the partial conference report and to the House position on all the amendments in disagreement on which Senate action is required, the legislative process is completed and the bill may be enrolled for presidential action. However, the Senate may agree to the partial conference report (which is rarely controversial), but not accept the House position on one or more of the amendments in disagreement. Instead, the Senate may vote to insist on its original position, support the negotiating position of its managers, or propose a new bargaining position to the House. If the House has insisted on its disagreement to a Senate amendment, the Senate may continue to insist on its amendment. If the House has receded from its disagreement to a Senate amendment and concurred in that amendment with a House amendment, the Senate may disagree to the House amendment or it may concur in the House amendment with a further Senate amendment (if such a Senate amendment would not be an amendment in the third degree). If one or more amendments remain in disagreement at the end of this process, either method of resolution may be pursued again. The amendments may be “messaged” back and forth between the houses until one chamber accepts the position of the other or until stalemate is reached. Alternatively, either house may request a further conference to consider the amendments that remain in disagreement. The same or new conferees may be appointed. Only the amendments in disagreement are submitted to the new conference. The managers may not re-open matters that were resolved in the partial conference report that both houses approved because these matters are no longer in disagreement. But the partial conference report cannot become law until all the remaining disagreements have been resolved. If the second conference is successful, the managers submit a second report for action on the House and Senate floor. If not, the legislation, including the partial conference report, probably is dead for that Congress. Amendments in true disagreement rarely arise when conferees are presented with a second chamber substitute. In such a situation, there is only one amendment before the conference. The conferees either reach agreement or they do not; they may not report only part of the substitute as an amendment in disagreement. If the conferees report back in total disagreement, the House and Senate then can vote to insist on their original positions or propose new versions of the legislation. This hardly ever occurs; but when it does, the bill may die for lack of further action or the two houses may agree to a new conference to consider the same issues once again. Instead, amendments in true disagreement generally have arisen when the second chamber has passed a bill with a series of separate amendments. Since this has happened most often to general appropriations bills that originate in the House (and on which the Senate requests conferences), the House usually has acted first on partial conference reports and amendments in disagreement. The possibility of amendments in disagreement can make it exceedingly difficult to anticipate what will happen to a measure that is sent to conference. It is not simply a question of whether or not the conferees will be able to resolve all the amendments in disagreement by reaching compromises that fall within the scope of the differences between the House and Senate versions. If a number of amendments are considered in conference, the managers may
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reach agreement on some, but not on others. And what then happens to the amendments reported in disagreement depends on the motions that are made and agreed to by the House and Senate. Furthermore, the recourse to amendments in disagreement creates new possibilities that were not available in conference. In conference, the managers’ options are defined and limited by the scope of the differences between the House and Senate positions before them. However, when the House and Senate act on an amendment in disagreement, they are not subject to this restriction. The concept of “the scope of the differences” is a restriction on the authority of managers in conference; it is not a restriction on amendments between the houses.36 So, for example, the House may amend a Senate amendment in disagreement with a new House position (or technically, the House may recede from its disagreement to the Senate amendment and concur in the Senate amendment with a House amendment) that goes beyond the scope of either house’s original position. Thus, it is possible, though not very likely in practice, that (1) the conferees could report an amendment in disagreement, (2) the first chamber to act could propose a new position in the form of an amendment to the amendment in disagreement, (3) the second chamber could respond with a further amendment that constitutes a new position of its own, and (4) conferees could be appointed for a second time to attempt to resolve the differences between these two new positions on the same subject. In this second conference, the same general policy question would be at issue, but the scope of the differences between the House and Senate versions (and consequently the options open to the conferees) would not be the same. To add to the uncertainties, several other complications can occur in the House as it acts on each amendment in disagreement. These options arise from the different order of precedence among certain motions in the House (but not in the Senate) that prevails before and after the House reaches the stage of disagreement, and the opportunities for crossing and re-crossing that threshold. These complications have arisen most often during action on amendments in disagreement to general appropriations bills. Before the House reaches the stage of disagreement, the order of precedence favors motions that tend to perfect the measure further; after the stage of disagreement, the order of precedence is reversed and favors motions that tend to promote agreement between the houses. Thus, if a motion to concur in a Senate amendment is made on the House floor before the stage of disagreement, a motion to concur with an amendment has precedence and may be offered and voted on while the motion to concur is pending. The motion to concur with an amendment has precedence because it tends to perfect the measure. If the House agrees to the motion to concur with an amendment, the straight motion to concur automatically falls without a vote, even though it had been offered first.37 After the House has reached the stage of disagreement, however, a motion that the House recede from its disagreement and concur in a Senate amendment has precedence over a motion to recede and concur with an amendment. The motion to recede and concur tends to promote agreement more directly than the motion to recede and concur with an amendment. If a preferential motion to recede and concur is made and carries, no vote occurs on the motion to recede and concur with an amendment, even if that motion already had been made. As if this were not complicated enough, the motion to recede and concur is divisible in the House, as is the motion to recede and concur with an amendment. Any Representative may demand that it be divided into two proposals: first, that the House recede from its disagreement to the Senate amendment; and second, that the House then concur in the Senate
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amendment (or concur in it with an amendment, depending on which motion has been made). Following a demand for the division of the motion, the House first considers whether it should recede from its disagreement. But if the House votes to recede, it crosses back over the threshold of disagreement; consequently, the precedence of motions reverses, and a motion to concur with an amendment takes precedence over a motion to concur. As a result, the possibilities that may arise on the House floor as the House considers each amendment in disagreement depend: first, on which motion is made by the floor manager; second, on what motions have precedence over that motion; and third, on whether an attempt is made to change the order of precedence by demanding a division of the first motion. Suppose that the clerk reads an amendment in disagreement and the floor manager moves that the House recede from its disagreement to that amendment and concur therein. Because the House and Senate reached the stage of disagreement before they appointed their conferees, a motion to recede and concur with a House amendment does not have precedence. However, if any Member demands a division of the motion to recede and concur, the House first debates and votes on whether to recede. Normally, the House does vote to recede because rejecting this motion would imply that the House is unwilling to consider either the Senate amendment or any compromise version. But when the House recedes from its disagreement, it crosses back over the threshold of disagreement and the order of precedence among motions is reversed. When the House then considers the second half of the divided motion — to concur in the Senate amendment — another Member may move instead that the House concur in the Senate amendment with an amendment, because the motion to concur with an amendment now has precedence over the motion to concur. Only if the House rejects the motion to concur with an amendment would it then vote on the original proposal to concur in the Senate amendment. Suppose instead that, after an amendment in disagreement has been read, the floor manager moves that the House recede and concur with an amendment. The stage of disagreement having been reached, a simple motion to recede and concur has precedence and may be offered. But if this motion is divided, the House votes first on whether to recede. And if the House does recede, the threshold of disagreement again is re-crossed and the motion to concur with an amendment has precedence over the second half of the divided motion — that the House concur. Thus, the amendment originally proposed in the motion to recede and concur with an amendment may be offered again as a motion to concur with an amendment — after a preferential motion to recede and concur has been offered, after that motion has been divided, and after the House has voted to recede.38 The array of possible complications on the Senate floor is more limited. First, the order of precedence of motions in the Senate is not reversed after the stage of disagreement has been reached. Second, Senators may not demand the division of a motion to recede and concur or of a motion to recede and concur with an amendment. Even in the House, Representatives seldom use the opportunities available to them. Amendments in true disagreement rarely arise and, when they do, the House usually accepts the floor manager’s motions to dispose of them. The sheer complexity of some of the parliamentary maneuvers described above probably discourages Members from attempting them, for fear that they are more likely to create confusion than achieve some strategic advantage. Nonetheless, the possibility of amendments in true disagreement and the various
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options for dealing with each of them on the floor make it dangerous to predict with confidence exactly what will happen to a measure once it has been submitted to conference.
AMENDMENTS IN TECHNICAL DISAGREEMENT As discussed in earlier sections of this chapter, there are important restrictions on the content of conference reports. Conferees may deal only with the matters that are in disagreement between the House and Senate, and they must resolve each of these matters by reaching an agreement that is within the scope of the differences between the House and Senate positions. If a conference report violates these restrictions in any one respect, the entire report is subject to a point of order.39 Yet conferees sometimes find it desirable or necessary to exceed their authority. For example, changing circumstances may make it imperative for Congress to appropriate more money for some program than either the House or the Senate initially approved. Or the conferees may decide that a bill should include provisions on a subject that was not included in the version passed by either house. In such cases, the conferees may be able to achieve their purpose, without subjecting their report to a point of order, by using the device of amendments in disagreement. In doing so, they take advantage of the fact that the restrictions that apply to provisions of conference reports do not govern amendments between the houses. If the conferees wish to exceed their authority in resolving one of the amendments in disagreement, they can exclude this amendment from the conference report; instead, they present to the House and Senate a partial conference report and an amendment in disagreement. This is called an amendment in technical disagreement. There is no substantive disagreement between the House and Senate conferees; they report the amendment in disagreement only for technical reasons — to avoid the restrictions that apply to conference reports. The first house considers the partial conference report and then the amendment in technical disagreement.40 When that amendment is presented (in the House, for example) the floor manager moves that the House recede from its disagreement to the Senate amendment and concur therein with an amendment that is the decision made in conference. Because this conference recommendation is considered outside of the conference report — as part of a motion to dispose of an amendment in technical disagreement — no point of order lies against the motion or the proposed amendment on the grounds that the amendment exceeds the scope of the differences or proposes a subject not committed to conference by either house. However, the proposed amendment still must be germane in the House. If the first house votes for the motion, the second chamber acts on the partial conference report and then on the first house’s amendment to the amendment in technical disagreement. When the amendment is presented, the floor manager moves that the Senate concur in the House amendment (assuming that the House acted first). If the Senate agrees to this motion, the process of resolution is completed. Until recently, conferees used this device regularly, although for a somewhat different purpose, to complete congressional action on general appropriations bills. The rules of the House generally prohibit such bills from carrying unauthorized appropriations and changes in existing law (“legislation”). The procedures of the Senate, however, are not as strict. Under a
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number of conditions, the Senate may consider floor amendments to general appropriations bills that would not have been in order in the House. If approved by the Senate, these amendments are sent to conference and constitute amendments in disagreement with the House. They are properly before the conference and the conferees may accept them without violating the restrictions on their authority that have been mentioned so far. This situation could create a significant problem for the House. On a general appropriations bill, conferees could present the House with a conference report that is not amendable but that includes matter that could not even have been considered, much less approved, by the House when it first acted on the bill on the floor. The remedy for the House can lie in the use of amendments in technical disagreement. Clause 5 of House Rule XXII states that House conferees may not agree to a Senate amendment to a general appropriations bill if the amendment would violate the prohibitions in the House’s rules against unauthorized appropriations and legislation on such bills (in clause 2 of Rule XXI), “unless specific authority to agree to the amendment first is given by the House by a separate vote with respect thereto.” Otherwise, the same clause provides, the Senate amendment in question “shall be reported in disagreement by the conference committee back to the two Houses for disposition by separate motion.” The same two options are available to conferees in the case of a Senate amendment proposing to appropriate funds in any bill that is not a general appropriations bill. In practice, House conferees never seek separate House floor votes in advance. Instead, the conferees report any amendments to which Rule XXII, clause 5(a), applies as amendments in technical disagreement. After the House agrees to the partial conference report, it considers these amendments. As each of the Senate amendments is presented to the House, the majority floor manager offers a motion that the House recede from its disagreement and either concur in the Senate amendment or concur in it with a House amendment. In either case, the floor manager’s motion incorporates the agreement reached in conference. After the House agrees to these motions, the Senate approves the partial report and then agrees to corresponding motions to dispose of the amendments that require Senate action. Whereas the House has dealt with most or all of the amendments separately, the Senate usually has disposed of most or all of them en bloc by unanimous consent. (The House may dispose of a number of such amendments en bloc, also by unanimous consent, when they are noncontroversial and when the floor manager proposes that the House recede and concur in each of them.) By this means, the House could respond, on a case-by-case basis, to Senate amendments to general appropriations bills that would not have been in order in the House. This procedure enabled the House to protect itself against having simply to vote for or against a conference report containing such Senate amendments (or modifications of them), and, therefore, having to choose between rejecting the report (and jeopardizing the bill) or violating the principles of its own rules. By voting on the motions made by the House floor manager, the House could decide in each instance whether to accept the judgment of its conferees that wisdom or necessity dictated an exception to a strict separation of appropriations from both authorizations and changes in existing law. Moreover, the House and Senate have the same options for dealing with amendments in technical disagreement that are available for disposing of amendments in true disagreement. Thus, amendments in technical disagreement have been a useful device to deal with the differences between House and Senate rules governing matters that may be included in
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general appropriations bills. This device was convenient for appropriations conferees because the Senate typically passed House appropriations bills with many separate, numbered amendments. Consequently, the conferees could report as many of these amendments as necessary as amendments in technical disagreement. In the last several Congresses, however, there have been far fewer amendments in technical disagreement accompanying appropriations conference reports. In many instances, the Senate has passed House appropriations bills with amendments in the nature of substitutes, and it is not possible to report back from conference with part of such an amendment in disagreement. Also, the House Rules Committee has reported, and the House has adopted, special rules waiving points of order against many of the appropriations conference reports. Anticipating that their reports would receive this protection, appropriations conferees could include all their agreements within their reports, without regard for considerations of scope or the matters in disagreement, and without fear that they would make their reports vulnerable to points of order on the House floor.
HOUSE CONSIDERATION OF NONGERMANE SENATE AMENDMENTS The contrast between House and Senate rules and procedures governing general appropriations bills poses one problem for bicameral relations that arises during the process of resolving legislative differences. A remedy has been the use of amendments in technical disagreement. Another and similar problem results from the contrast between House and Senate rules concerning the germaneness of amendments — a problem for which the House has devised a somewhat different remedy. House rules require amendments to be germane (unless this requirement is waived by a special rule). By contrast, Senate rules require that amendments be germane only when offered to general appropriations measures or budget measures (both budget resolutions and reconciliation bills) or when offered after the Senate has invoked cloture. In addition, the Senate sometimes imposes a germaneness requirement on itself as part of unanimous consent agreements governing consideration of individual measures, although such agreements may include exceptions that make specific nongermane amendments in order. Consider the potential consequences of this difference for the House. The Senate may pass a House bill with one or more nongermane amendments. Each of these amendments is “conferenceable” (an unofficial term that is used from time to time by participants in the legislative process) as an amendment in disagreement between the House and Senate. The conferees may include it (or a modification of it) in their conference report without violating their authority. However, this situation could force the House into an up-or-down vote on a conference report including nongermane matters that were not debated on the House floor, that would have been subject to points of order if offered as House floor amendments, and that might not even have been considered by the appropriate House committees. The remedy for the House appears in clause 10 of House Rule XXII. This clause creates an opportunity for the House to identify nongermane matter originating in the Senate and to consider it separately. (Of course, the House can adopt a special rule reported from the Rules Committee that waives the point of order this clause creates.)
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Clause 10 states that when the House begins consideration of a conference report or a motion to dispose of a Senate amendment to which the House has disagreed, a Member may make a point of order (before debate begins) against matter contained in the report or the motion on the grounds that the matter in question would not have been germane if it had been offered as a House floor amendment to the measure (in the form the measure passed the House).41 If the Speaker sustains the point of order (thereby establishing that the matter in question is nongermane), the Member then may move that the House reject the nongermane matter. This motion is debatable for 40 minutes, to be equally divided between and controlled by proponents and opponents. After the House votes on the motion, another such point of order may be made against different nongermane matter; and if it is sustained, another motion to reject is in order. If the House defeats any and all motions to reject, the House thereby decides to retain the nongermane matter. The House may vote not to reject nongermane language for at least two reasons. First, a majority of Representatives may support the nongermane matter on its merits; or second, the House may conclude that the Senate is so insistent on its nongermane language that rejecting it could seriously jeopardize enactment of the entire bill. If the House does vote to reject any nongermane matter in a conference report, the report is considered as having been rejected. This is consistent with the principle that conference reports are not amendable. Clause 1 0(d)(2) states that, in most cases, the House then proceeds automatically to decide “whether the House shall recede and concur in the Senate amendment with an amendment consisting of so much of the conference report as was not rejected.” In other words, the House votes to amend the Senate amendment with a House amendment that consists of the remainder of the conference agreement without the nongermane matter.42 If the Senate accepts this new House amendment, resolution is reached. If not, the Senate may disagree to the House amendment and request a new conference with the House. In this way, the House can isolate nongermane Senate matter for separate consideration, but neither chamber can impose its will on the other. Clause 10(d)(3) makes in order three possible motions, in an established order of precedence, that Members may make if the House votes to reject nongermane matter contained not in a conference report but in a motion that the House recede and concur in a Senate amendment, with or without amendment. In brief, these motions allow the House to amend the Senate amendment or to again disagree to it, perhaps also requesting a new conference with the Senate to resolve this disagreement.
SOME CONCLUDING OBSERVATIONS Describing conference committees as bargaining forums implies an element of competition between the House and Senate. Each house passes its own version of a bill and expects its managers to defend that version in conference. The conferees wish to return to their parent chamber and assert that their report preserves the essential features of their house’s version of the bill — that the other body gave more ground in conference. Which house most often wins in conference? Observers and students of Congress have attempted to answer this question from time to time, using methods ranging from case studies
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to statistical analyses. Perhaps it is not surprising that the results have been inconsistent and inconclusive. The answer to “Who wins in conference?” depends on the answer to another question: “What do the various participants want to win in conference?” And answering the latter question requires an understanding of Members’ motives and intentions that cannot always be discerned accurately from the public record. If a conference committee accepts the Senate’s positions (or relatively minor modifications of them) on three out of every four of the matters in disagreement, has the Senate “won”? There are at least three reasons to be skeptical. First, not all matters in disagreement are of equal significance. The matters on which the House prevailed, though fewer in number, may define and shape the essential character of the legislation; whereas the greater number of matters on which the Senate prevailed may be less important, individually and even collectively, in determining the scope and effect of the legislation. Second, the conferees from each house almost certainly are not equally committed to defending every element of their chamber’s version of the legislation. One or both houses may include provisions that are bargaining positions, rather than fixed legislative objectives. If one house, for instance, has passed a “weak” version of a bill, the other house may pass a version that is “stronger” than it really wishes or expects to be enacted, in anticipation of conference negotiations that will reach some middle ground. It also can be tempting for the floor manager of a bill to express no opposition to colleagues’ amendments when they are offered on the floor if accepting the amendments will induce their sponsors to vote for the bill without costing the votes of other members. This is a particularly attractive option in the Senate where Senators may offer nongermane amendments on unrelated subjects about which they feel strongly. As a result, the managers can take into conference a number of amendments that they are prepared to trade in return for more substantively important concessions from the other house. Third, it is a considerable oversimplification to think of each house’s delegation to a conference as a single unit or even as a group of individuals with the same goals. It is often said that conferees are to defend the positions of their house. However, all Representatives and Senators have individual legislative goals; each conferee can be expected to be more concerned about certain provisions in his or her house’s version of the bill than about others. And at least some of the conferees usually prefer some of the provisions of the other house’s version. In short, as each decision is made in conference, some conferees from each house win, and others lose.
ENDNOTES 1
This chapter was written by Stanley Bach, formerly a Senior Specialist in the Legislative Process at CRS. Dr. Bach has retired, but the listed author updated the chapter. 2 Each house may interpret the same legislative language differently; these differences sometimes emerge from a comparison of House and Senate committee reports and floor debates. Deliberate ambiguity in the language of legislation can be used to promote agreement between the two chambers. 3 This requirement also applies to joint resolutions proposing constitutional amendments and to concurrent resolutions, even though neither are sent to the White House for the
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President’s signature or veto. House and Senate resolutions, on the other hand, do not require action by “the other body.” Throughout this chapter, the terms “bill” and “measure” are used interchangeably to refer to all bills and resolutions on which House and Senate differences are to be resolved. 4 In this chapter, terms such as “first chamber” and “second house” are used to refer only to the order in which the House and Senate complete initial floor action on a measure. 5 From time to time, Senate committees and even the Senate as a whole may take some action on a Senate appropriations or tax measure. However, on the infrequent occasions when the Senate has passed such a bill and sent it to the House, the House often has returned it to the Senate on the ground that the bill infringed on the House’s constitutional prerogatives, as interpreted by the House. The resolutions that the House has adopted for this purpose often are called “blue slip” resolutions. 6 This may occur for strategic or institutional as well as procedural reasons, as when the House refuses to consider a Senate bill that the House finds to be in violation of its constitutional prerogative to originate revenue measures. Also, the two houses may prefer to retain the House or Senate bill number if one is more familiar than the other to the bills’ supporters outside of Congress. 7 Third reading and engrossment is a technical and noncontroversial stage in both houses that marks the conclusion of the amending process and precedes the vote on final passage. 8 Senate rules require floor amendments to be germane only when offered to general appropriations bills or budget measures, or after the Senate has invoked cloture. 9 Once the conferees completed their work, the House agreed to an unusual special rule under which it cast one vote to approve all four conference reports. 10 Note that, at this point, both houses have agreed to everything in the text except the portion amended by the second chamber. Thereafter, neither chamber should propose changes in portions of the text to which both have agreed. 11 A measure normally can be amended in two degrees on the House or Senate floor. An amendment offered to the text of the measure itself is an amendment in the first degree. While a first degree amendment is pending (that is, after it has been offered but before it has been voted on), an amendment may be offered to the amendment. Such an amendment to a pending amendment is an amendment in the second degree. Although more complicated situations may arise, both chambers generally prohibit third degree amendments. (In the House, however, a substitute for a first degree amendment is amendable.) Roughly the same principles apply to amendments between the houses. For more detailed descriptions of these procedures, see CRS Report 98-85 3, The Amending Process in the Senate, by Betsy Palmer and CRS Report 98-995, The Amending Process in the House of Representatives, Christopher M. Davis. 12 The House or Senate may consider a third degree amendment by unanimous consent. In the House, it also may be considered under suspension of the rules or pursuant to a special rule. 13 The terms “recede,” “insist,” and “adhere” have technical meanings in the legislative process. When the House or Senate “recedes,” it withdraws from a previous position or action. To “insist” and to “adhere” have essentially the same meaning but are terms used at different stages of the process. 14 The same applies to a Senate bill with Senate amendments to House amendments, and to a House bill with Senate amendments to House amendments to Senate amendments.
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This possibility is discussed in the section on floor consideration of conference reports. However, the House may amend the instructions (if it has not already ordered the previous question on the motion). Such an amendment must be germane to either the House or Senate versions of the bill, but not necessarily to the instructions to which the amendment is proposed. 18 It is possible for Senate conferees to be instructed by resolution while a bill is in conference. 16 Because the motion to instruct may be made only before the conferees are named, it is less likely to be viewed as a challenge to the intentions of the Members appointed as managers. 19 Clause 5 of House Rule XXII also restricts the authority of House conferees to include certain kinds of Senate amendments in conference reports on general appropriations bills. These restrictions are discussed in the section on amendments in technical disagreement. 20 Conference reports also are subject to points of order if they violate certain provisions of the Budget Act. 21 Riddick’s Senate Procedure, p. 484. 22 Ibid., p. 463. 23 For more information, see CRS Report RS22733, Senate Rules Changes in the 110th Congress Affecting Restrictions on the Content of Conference Reports, by Elizabeth Rybicki. 24 For more information on the applicability of Paragraph 8 of Rule XLIV, see a letter from the Majority Leader inserted into the Congressional Record (Congressional Record, daily edition, vol. 153 (September 24, 2007), pp. S11993-S 11994). 25 For more information on discretionary and direct spending, see CRS Report RS2037 1, Overview of the Authorization- Appropriations Process, by Bill Heniff Jr. 26 The “Sense of the Senate on Conference Committee Protocols” was included in the Honest Leadership and Open Government Act of 2007 (P.L. 110-81, sec. 515). 27 The preparation of such documents is not required, but they are particularly useful to help conferees identify and compare the corresponding House and Senate provisions of large and complex bills. These “side-by-sides”, as they often are called, sometimes are available from the House or Senate committee of jurisdiction. However, they are not generally available for public distribution to the same extent as House and Senate reports and documents, for example. 28 This practice is stated in Section XLVI of Jefferson’s Manual. 29 Rather than violate the customary order for considering conference reports, the same end can be achieved by arranging for one house to request the conference instead of agreeing to a request by the other. 30 In contemporary practice, adjournment resolutions usually are not approved until very shortly before the adjournment takes place. This often makes it impossible to know when the “last six days” begin. To achieve the same end, the House may adopt, as the end of the session approaches, a resolution reported from the Rules Committee that triggers certain provisions of House rules and waives others for the duration of the session. 31 Such a resolution always is in order, notwithstanding the usual requirement that a twothirds vote is necessary for the House to consider a resolution from the Rules Committee on the same day the resolution is reported. 17
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Several exceptions — for example, while the Journal is being read or a quorum call is in progress — are listed in paragraph 1 of Rule XXVIII. 33 For more information, see CRS Report RS22733, Senate Rules Changes in the 1 10th Congress Affecting Restrictions on the Content of Conference Reports, by Elizabeth Rybicki. 34 The form of the motion depends on what the House and Senate sent to conference. Very often, a House bill and a Senate amendment are sent to conference. The motion in that case would be for the Senate to recede from its amendment and concur in the House bill with a further Senate amendment consisting of the conference committee compromise without the “new matter” or “new directed spending provision.” If a Senate bill and House amendment were sent to conference, the motion would be that the Senate recede from its disagreement to the House amendment and concur in the House amendment with a further amendment. 35 Paragraph 4(b)(2) of Rule XXVIII; Paragraph 8(b)(2) of Rule XLIV. 36 However, floor amendments to amendments in disagreement still must meet normal requirements for floor amendments. For example, a House amendment to a Senate amendment in disagreement to a general appropriations bill still must be germane and may not propose a new unauthorized appropriation, even though the Senate amendment in disagreement may itself provide an unauthorized appropriation. 37 Such motions are not likely to be made in practice, for reasons discussed in the section on House consideration of Senate amendments. 38 Additional complications are possible. If a motion to concur with an amendment, or to recede and concur with an amendment, is made and rejected, another such motion could be made proposing a different germane amendment. Alternatively, if the previous question is not ordered on a motion to concur with an amendment (or a motion to recede and concur with an amendment), a germane second degree amendment could be offered to the amendment. 39 As discussed earlier, however, the Senate interprets its rules in a way that gives its conferees considerable latitude, and the House can waive points of order by adopting a special rule for that purpose. 40 The House usually acts first on partial conference reports and amendments in technical disagreement because they arise most often on general appropriations bills which originate in the House (and on which the Senate usually requests conferences). 41 The Speaker first entertains any points of order against the report as a whole (on grounds of scope, for example) before entertaining points of order concerning germaneness. 42 If the House rejects nongermane matter in a conference report accompanying a Senate measure that the House had amended, the House votes instead on insisting further on the House amendment to the Senate bill.
In: Congress of the U.S: Commitees, Rules and Procedures ISBN 978-1-60456-416-7 Editor: Sela G. Thomason © 2009 Nova Science Publishers, Inc.
Chapter 2
CONGRESSIONAL REVIEW OF AGENCY RULEMAKING: AN UPDATE AND ASSESSMENT OF THE CONGRESSIONAL REVIEW ACT * AFTER TEN YEARS Morton Rosenberg SUMMARY On March 29, 1996, the President signed into law the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), P.L. 104-121, 110 Stat. 857-874, Subtitle E of which for the first time established a mechanism by which Congress can review and disapprove, by means of an expedited legislative process, virtually all federal agency rules. In its current form, however, some have questioned the efficacy of the review scheme as a vehicle to control agency rulemaking through the exercise of legislative oversight. These questions have been raised despite the use of the CRA to nullify OSHA' s controversial ergonomics standards in March 2001. In the view of some observers, the OSHA action was the result of a unique confluence of circumstances not likely to soon recur: the White House and both Houses of Congress in the hands of the same political party, a contentious rule promulgated in the waning days of an outgoing administration; longstanding opposition to the rule by some in Congress and by a broad coalition of business interests; and encouragement of repeal by the President. On the other hand, some maintain that a number of major rules have been affected by the Agency recognition of the existence of the review mechanism, and argue that the review scheme has had a significant influence. Among potential impediments to the law's use, the scheme provides no expedited consideration procedure in the House of Representatives; there is no screening mechanism to identify rules that may require special congressional attention; and a disapproval resolution of a significant or politically sensitive rule is likely to need a supermajority to be successful if
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control of the White House and the Congress are in different political hands, as was the case between April 1996 and January 2001. Moreover, a number of critical interpretive issues remain to be resolved, including the scope of the provisions' coverage of rules; whether an agency failure to report a covered rule is subject to court review and sanction; whether a joint resolution of disapproval may be utilized to veto parts of a rule or only may be directed at the rule in its entirety; and what is the scope of the limitation that precludes an agency from promulgating a "substantially similar" rule after disapproval of a rule. Some might argue that these potential impediments and uncertainties have contributed to the fact that of a total of 37 joint resolutions of disapproval that have been introduced to date since April 1996, only one has succeeded in passing and that one may have been sui generis because of the unique circumstances accompanying its passage. During that period 41,218 major and non- major rules have been reported and become effective. This chapter will provide a brief explanation of how the structure of review scheme describes the criticisms of a some observers concerning the way it has been utilized.
INTRODUCTION On March 29, 1996, the President signed into law the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), P.L. 104-121, 110 Stat. 857-874, Subtitle E of which for the first time established a mechanism by which Congress can review and disapprove, by means of an expedited legislative process, virtually all federal agency rules. In its current form, however, some have questioned the efficacy of the review scheme as a vehicle to control agency rulemaking through the exercise of legislative oversight. These questions have been raised despite the use of the CRA to nullify OSHA' s controversial ergonomics standard in March 2001. It has been argued that the action on the OSHA proposal was the result of a unique confluence of circumstances not likely to soon recur: the White House and both Houses of Congress in the hands of the same political party, a contentious rule promulgated in the waning days of an outgoing administration; longstanding opposition to the rule by some in Congress and by a broad coalition of business interests; and encouragement of repeal by the President. On the other hand, some maintain that a number of major rules have been affected by Agency recognition of the availability of the review mechanism, and argue that the review scheme has had a significant influence. Those who maintain that the CRA has not been appropriately utilized assert that the current procedure provides no expedited consideration procedure in the House of Representatives; lack of screening mechanism to identify rules that may require special congressional attention; and, that a disapproval resolution of a significant or politically sensitive rule is likely to need a supermajority to be successful if control of the White House and the Congress are in different political hands. They further maintain that a number of critical interpretive issues and questions remain to be resolved, including the scope of the provisions' coverage of rules; whether an agency failure to report a covered rule is subject to court review and sanction; whether a joint resolution of disapproval may be utilized to veto parts of a rule or only may be directed at the rule in its entirety; and what is the scope of the *
This is an edited, excerpted and augmented edition of a CRS Report for Congress publication, Order Code RL30116, dated March 29, 2006.
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limitation that precludes an agency from promulgating a "substantially similar" rule after disapproval of a rule. From these critics' perspective potential impediments and uncertainties have contributed to the fact that of a total of 37 joint resolutions of disapproval that have been introduced to date since April 1996, only one has passed. They point out that during that period over 41,828 major and non-major rules have been reported and become effective. This chapter will provide a brief explanation of how the review scheme was expected to operate and describe how it has been utilized. The possible reasons for the relatively limited use of the formal review mechanism thus far are assessed and congressional possible proposals are discussed. Obviously, there are those who do not support increased utilization of the CRA review process. Those holding this opinion may represent a number of views including concern that expanded use of the process will lead to the disproportionate influence on Federal regulations by powerful interest groups or that many regulations have become too technical to be judged by "non-experts". However, since those holding these or similar views have been notably silent during recent discussions of CRA issues, this chapter does not attempt to predict or describe these positions.
REVIEW OF AGENCY RULES The congressional review mechanism, codified at 5 U.S.C. 801-808, and popularly known as the Congressional Review Act (CRA), requires that all agencies promulgating a covered rule must submit a report to each House of Congress and to the Comptroller General (CG) that contains a copy of the rule, a concise general statement describing the rule (including whether it is deemed to be a major rule), and the proposed effective date of the rule. A covered rule cannot take effect if the report is not submitted. Section 801(a)(1)(A). Each House must send a copy of the report to the chairman and ranking minority member of each jurisdictional committee. Section 801(a)(1)(C). In addition, the promulgating agency must submit to the CG (1) a complete copy of any cost-benefit analysis; (2) a description of the agency's actions pursuant to the requirements of the Regulatory Flexibility Act and the Unfunded Mandates Reform Act of 1995; and (3) any other relevant information required under any other act or executive order. Such information must also be made "available" to each House. Section 801(a)(1)(B). Section 804(3) adopts the definition of "rule" found at 5 U.S.C. 551(4) which provides that the term rule "means the whole or part of an agency statement of general ... applicability and future effect designed to implement, interpret, or prescribe law or policy."1 The legislative history of Section 551(4) indicates that the term is to be broadly construed: "The definition of rule is not limited to substantive rules, but embraces interpretive, organizational and procedural rules as well."2 The courts have recognized the breadth of the term, indicating that it encompasses "virtually every statement an agency may make,"3 including interpretive and substantive rules, guidelines, formal and informal statements, policy proclamations, employee manuals and memoranda of understanding, among other types of actions. Thus a broad range of agency action is potentially subject to congressional review. The Comptroller General and the Administrator of the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget have particular
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responsibilities with respect to a "major rule," defined as a rule that will likely have an annual effect on the economy of $100 million or more, increase costs or prices for consumers, industries or state and local governments, or have significant adverse effects on the economy. The determination of whether a rule is major is assigned exclusively to the Administrator of OIRA. Section 804(2). If a rule is deemed major by the OIRA Administrator, the CG must prepare a report for each jurisdictional committee within 15 calendar days of the submission of the agency report required by Section 801(a)(1) or its publication in the Federal Register, whichever is later. The statute requires that the CG' s report "shall include an assessment of the agency's compliance with the procedural steps required by Section 801(a)(1)(B)."4 Section 801(a)(2)(A). The CG has interpreted his duty under this provision relatively narrowly as requiring that he determine whether the prescribed action has been taken, i.e., whether a required cost-benefit analysis has been provided, and whether the required actions under the Regulatory Flexibility Act, the Unfunded Mandates Reform Act of 1995, and any other relevant requirements under any other legislation or executive orders were taken, not to examine the substantive adequacy of the actions. The designation of a rule as major also affects its effective date. A major rule may become effective on the latest of the following scenarios: (1) 60 calendar days after Congress receives the report submitted pursuant to Section 801(a)(1)5 or after the rule is published in the Federal Register; (2) if Congress passes a joint resolution of disapproval and the President vetoes it, the earlier of when one House votes and fails to override the veto, or 30 calendar days after Congress receives the veto message; or (3) the date the rule would otherwise have taken effect (unless a joint resolution is enacted). Section 801(a)(3). Thus the earliest a major rule can become effective is 60 calendar days after the later of the submission of the report required by Section 801(a)(1) or its publication in the Federal Register, unless some other provision of the law provides an exception for an earlier date. Three possibilities exist. Under Section 808(2) an agency may determine that a rule should become effective notwithstanding Section 801(a)(3) where it finds "good cause that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest."6 Second, the President may determine that a rule should take effect earlier because of an imminent threat to health or safety or other emergency; to insure the enforcement of the criminal laws; for national security purposes; or to implement an international trade agreement. Section 801(c). Finally, a third route is available under Section 801(a)(5) which provides that "the effective date of a rule shall not be delayed by operation of this chapter beyond the date on which either House of Congress votes to reject a joint resolution of disapproval under Section 802."7 All other rules take effect "as otherwise allowed by law" after having been submitted to Congress under Section 801(a)(1). Section 801(a)(4). Under the Administrative Procedure Act, a final rule may go into effect 30 days after it is published in the Federal Register in final form. 5 U.S.C. 553(d). An agency, in its discretion, may delay the effectiveness of a rule for a longer period; or it may put it into effect immediately if good cause is shown. All covered rules are subject to disapproval even if they have gone into effect. Congress has preserved for itself a review period of at least 60 days. Moreover, if a rule is reported within 60 session days of adjournment of the Senate or 60 legislative days of adjournment of the House, the period during which Congress may consider and pass a joint resolution of disapproval is extended to the next succeeding session of the Congress. Section 801(d)(1). Such held over rules are treated as if they were published on the 15th session day of the
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Senate and the 15th legislative day of the House in the succeeding session and as though a report under Section 801(a)(1) was submitted on that date. Section 801(d)(2)(A), (e)(2). But a held over rule takes effect as otherwise provided. 801(d)(3). The opportunity for Congress to consider and disapprove is simply extended so that it has a full 60 session or legislative days to act in any session. If a joint resolution of disapproval is enacted into law, the rule is deemed not to have had any effect at any time. Section 801(f). If a rule that is subject to any statutory, regulatory or judicial deadline for its promulgation is not allowed to take effect, or is terminated by the passage of a joint resolution, any deadline is extended for one year after the date of enactment of the joint resolution. Section 803. A rule that does not take effect, or is not continued because of passage of a disapproval resolution, may not be reissued in substantially the same form. Indeed, before any reissued or new rule that is "substantially the same" as a disapproved rule can be issued it must be specifically authorized by a law enacted subsequent to the disapproval of the original rule. Section 801(b)(2). Section 802(a) spells out the process for an up or down vote on a joint resolution of disapproval.8 A joint resolution of disapproval must be introduced within 60 calendar days (excluding days either House of Congress is adjourned for more than three days during a session of Congress) after the agency reports the rule to the Congress in compliance with Section 801(a)(1). Timely introduction of a disapproval resolution allows each House 60 session or legislative days to pass it and thereby get the benefit of expedited consideration procedures, retroactive nullification of an effective rule, and the limitation on an agency from promulgating a "substantially similar" rule without subsequent congressional authorization to do so by law. The law provides an expedited consideration procedure for the Senate. If the committee to which a joint resolution is referred has not reported it out within 20 calendar days after referral, it may be discharged from further consideration by a written petition of 30 Members of the Senate, at which point the measure is placed on the calendar. After committee report or discharge it is in order at any time for a motion to proceed to consideration. All points of order against the joint resolution (and against consideration of the measure) are waived, and the motion is not subject to debate, amendment, postponement, or to a motion to proceed to other business. If the motion to consider is agreed to, it remains as unfinished business of the Senate until disposed of. Section 802(d)(1). Debate on the floor is limited to 10 hours. Amendments to the resolution and motions to postpone or to proceed to other business are not in order. Section 802(d)(2). At the conclusion of debate an up or down vote on the joint resolution is to be taken. Section 802(d)(3).9 There is no special procedure for expedited consideration and processing of joint resolutions in the House. But if one House passes a joint resolution before the other House acts, the measure of the other House is not referred to a committee. The procedure of the House receiving a joint resolution "shall be the same as if no joint resolution had been received from the other House, but ... the vote on final passage shall be on the joint resolution of the other House." Section 802(f)(1)(2). Section 805 precludes judicial review of any "determination, finding, action or omission under this chapter." This would insulate from court review, for example, a determination by the OIRA Administrator that a rule is major or not, a presidential determination that a rule should become effective immediately, an agency determination that "good cause" requires a rule to go into effect at once, or a question as to the adequacy of a Comptroller General's
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assessment of an agency's report. The legislative history of this provision indicates that this preclusion of judicial review would not apply to a court challenge to a failure of an agency to report a rule. This appears not to be a judicially settled matter.10 Resolutions of Disapproval Introduced Under the Congressional Review Act (April 1996 - March 2006) Date of Number Resolution 104th Congress
Sponsor
Agency
Subject
Last Action
9/17/1996
Sen. Trent Lott
HCFA/ HHS
Hospital reimbursement under Medicare
Failed in passage in Senate by UC
Hearing (House Committee on Resources) Referred to Subcommittee of House Committee on Education and the Workforce Referred to Senate Committee on Labor and Human Resources Referred to Subcommittee of House Committee on Commerce Referred to Senate Committee on Finance
S.J.Res. 60
105th Congress 3/4/1997
H.J.Res. 59
Rep. Don Young (+5)
USFWS/ DOI
Polar bear trophies from Canada
3/20/1997
H.J.Res. 67 (Same as S.J.Res. 25)
Rep. Roger Wicker (+54)
OSHA/ DOL
Occupational exposure to methylene chloride
4/10/97
S.J.Res. 25 (Same as H.J.Res. 67)
Sen. Thad Cochran (+5)
OSHA/ DOL
Occupational exposure to methylene chloride
6/18/1997
H.J.Res. 81
Rep. Joe Scarborough
FCC
6/10/98
S.J.Res. 50 (Same as H.J.Res. 123)
Sen. Christopher Bond
6/17/1998
H.J. Res 123 (Same as S.J.Res. 50)
Rep. Jim Nussle (+65)
Revision of cable television leased commercial access rules HCFA/ Surety bond HHS requirements for home health agencies under Medicare and Medicaid programs HCFA/ HHS Surety bond requirements for home health agencies under Medicare and Medicaid programs
Referred to Subcommittees of House Committees on Ways and Means and Commerce
106th Congress 5/20/1999
H.J.Res. 55
Rep. Ron Paul USPS (+68)
Delivery of mail to a commercial mail receiving agency
7/13/2000
H.J.Res. 104
Rep. Ron Paul EPA
National pollutant discharge
Referred to Subcommittee of House Committee on Government Reform Referred to Subcommittee of
Congressional Review of Agency Rulemaking
7/17/2000
7/18/2000
7/18/2000
S.J.Res. 50 (Same as H.J.Res. 106) H.J.Res. 105
Sen. Michael Crapo (+18)
EPA
Rep. Marion Berry (+23)
EPA
H.J.Res. 106 (Same as S.J.Res. 50)
Rep. Jay Dickey
EPA
elimination system program and federal antidegradation policy and the water quality planning and management regulations concerning total maximum daily load Water pollution under the total maximum daily load program
43 House Committee on Transportation and Infrastructure
Referred to Senate Committee on Environment and Public Works Referred to Subcommittee of House Committee on Transportation and Infrastructure
Total maximum daily loads under the Federal Water Pollution Control Act Water pollution under Referred to the total maximum Subcommittee of daily load program House Committee on Transportation and Infrastructure
107th Congress 3/1/2001
S.J.Res. 6 (same as H.J.Res. 35; H.Res. 79 provided for its considera tion in the House) H.J.Res. 35 (same as S.J.Res. 6)
Sen. Don Nickles (+6)
OSHA/ DOL
Ergonomics
Became P.L. 1075 on 3/20/2001
Rep. Ann Northrup (+32)
OSHA/ DOL
Ergonomics
3/15/2001
H.J.Res. 38
Rep. Ron Paul (+14)
HHS
Standards for privacy of individually identifiable health information
3/20/2001
S.J.Res. 91
Sen. Barbara Boxer (+6)
USAID
Restoration of the Mexico City Policy
Referred to Subcommittee of House Committee on Education and Workforce Referred to Subcommittees of House Committees on Energy and Commerce, Ways and Means, and Education and the Workforce Referred to Committee on Foreign Relations
3/7/2001
44
Morton Rosenberg Table. Continued
Date of Resolution 4/4/2001
Number
Sponsor
Agency
Subject
H.J.Res. 43
Rep. Joe Knollenberg
DOE
Residential central air conditioners and heat pumps
4/4/2001
H.J.Res. 44
Rep. Joe Knollenberg
DOE
5/22/2001
S.J.Res. 14
Sen. Barbara Boxer
EPA
5/22/2001
S.J.Res. 15
Sen. Barbara Boxer
DOE
5/14/2002
H.J.Res. 92 (Same as S.J.Res. 37)
Rep. Eliot Engel HHS (+56)
5/14/2002
S.J.Res. 37 (Same as H.J.Res. 92)
Sen. Paul CMS/ HHS Wellstone (+13)
10/8/2002
S.J.Res. 48 (Same as H.J.Res. 119)
Sen. John McCain (+10)
FEC
10/8/2002
H.J.Res. 119 (Same as S.J.Res. 48)
Rep. Christopher Shays (+1)
FEC
Rep. William Thomas (+106)
CMS/ HHS
Last Action
Referred to Subcommittee of House Committee on Energy and Commerce Clothes washers Referred to Subcommittee of House Committee on Energy and Commerce Delay in the Referred to Senate effective date of Committee on new arsenic Environment and standard Public Works Postponement of the Hearing by Senate effective date of Committee on energy conservation Energy and Natural standards for central Resources air conditioners (7/13/2001) Modification of Referred to Medicaid upper Subcommittee of payment limit for non- House Committee on State government Energy and owned or operated Commerce hospitals Modification of upper Referred to Senate payment limit for non- Committee on State Finance government owned or operated hospitals Prohibited and Referred to Senate excessive Committee on contributions: nonRules and federal Administration funds or soft money Prohibited and Referred to House excessive Committee on House contributions: nonAdministration federal funds or soft money
108th Congress 1/7/2003
H.J.Res. 3
Revisions to payment policies under the Medicare physician fee schedule for calendar year 2003 and
Referred to House Committees on Energy and Commerce and Ways and Means
Congressional Review of Agency Rulemaking
45
other items 3/20/2003
H.J.Res. 41
Rep. Lane Evans
5/22/2003
H.J.Res. 58
Rep. Thomas Treasury Trancredo (+7)
7/15/2003
S.J.Res. 17 (Same as H.J.Res. 72)
Sen. Byron Dorgan (+24)
FCC
10/16/2003 H.J.Res. 72 (Same as S.J.Res. 17)
Rep. Maurice Hinchey (+2)
FCC
4/7/2004
S.J.Res. 31 (Same as H.R. 4236) S.J.Res. 32 (Same as H.R. 4237) H.R. 4236 (Same as S.J.Res.
Sen. John Edwards
OCC
Sen. John Edwards
OCC
H.R. 4237 (Same as S.J.Res.
Rep. Luis OCC Gutierrez (+35)
4/7/2004
4/28/2004
4/28/2004
DVA
Rep. Luis OCC Gutierrez (+35)
Acquisition procedures Referred to House for health-care Committees on resources Veterans Affairs and Government Reform Section 326(a) of USA Referred to PATRIOT ACT Subcommittee of (acceptance of certain House Committee on unverifiable Financial Services forms of identification by financial institutions) Broadcast media Passed Senate ownership without amendment by YeaNay vote (5540); not acted on by the House Broadcast media Referred to ownership Subcommittee of House Committee on Energy and Commerce Bank activities and Referred to Senate regulations Committee on Banking, Housing, and Urban Affairs Bank activities and Referred to Senate regulations Committee on Banking, Housing, and Urban Affairs Bank activities and Referred to regulations Subcommittee of House Committee on Financial Services Bank activities and Referred to regulations Subcommittee of House Committee on Financial Services
109th Congress 2/14/2005
S.J.Res. 4 (Same as H.J.Res. 24)
Sen. Kent Conrad (+8)
Agriculture
2/17/2005
H.J.Res. 23 (Same as S.J.Res. 4)
Rep. Herseth (+1)
Agriculture
Establishment minimal risk zones for introduction of mad cow disease Establishment of minimal risk zones for introduction of mad cow disease
Passed Senate by 5246 Yea-Nay vote 3/3/05; not acted on by House Referred to House Agriculture Committee. No action taken
46
Morton Rosenberg Table. Continued
Date of Resolution 2/17/2005
6/29/2005
6/29/2005
Number
Sponsor
Agency
H.J.Res. 23 (Same as S.J.Res. 4) S.J.Res. 20 (Same as H.J.Res. 56)
Rep. Herseth (+1)
Agriculture
Sen. Leahy (+31)
EPA
H.J.Res. 56 (Same as S.J.Res. 20)
Rep. Meehan (+4)
EPA
Subject
Establishment of minimal risk zones for introduction of mad cow disease Removal of coal and oil-fired generating units from list of major sources of hazardous pollutants Removal of coal and oil-fired generating units from list of major sources of hazardous pollutants
Last Action
Referred to House Agriculture Committee. No action taken Defeated in Senate by 47-51 vote, 9?13/05
Referred to Committee on Energy and Commerce. No action taken
Note: Not included in this tabulation are bills designed to disapprove agency rules but that were not joint resolutions under the Congressional Review Act. For example, H.R. 3735, introduced on April 28, 1998, by Rep. Ron Paul, was intended to disapprove a rule requiring the use of bycatch reduction devices in the shrimp fishery of the Gulf of Mexico. The bill was in response to Amendment 9 to the Fishery Management Plan for the Shrimp Fishery of the Gulf of Mexico, issued as a final rule implementing the amendment on April 14, 1998. The bill's findings section indicated that approval of the amendment was inconsistent with the requirements of the Magnuson-Stevens Fishery Conservation Act and the Administrative Procedure Act. The disapproval section indicated that the rule "shall have no force or effect."
Finally, the law provides a rule of construction providing that a reviewing court shall not draw any inference from a congressional failure to enact a joint resolution of disapproval with respect to such rule or a related statute. Section 801(g).
UTILIZATION OF THE REVIEW MECHANISM SINCE 1996 As of March 24, 2006, the Comptroller General had submitted reports pursuant to section 801(a)(2)(A) to Congress on 610 major rules11 In addition, GAO had cataloged the submission of 41,218 non-major rules as required by Section 801 (a) (1) (A). To date, 37 joint resolutions of disapproval have been introduced relating to 28 rules. One rule, OSHA' s ergonomics standard in March 2001, has been disapproved, an action that some believe to be unique to the circumstances of its passage. Two other rules have been disapproved by the Senate. One, the Federal Communication Commission's 2003 rule relating to broadcast media ownership was disapproved by the Senate during the 108th Congress but was not acted upon by the House. The second, a 2005 Department of Agriculture rule relating to the establishment of minimal risk zones for introduction of bovine spongiform encephalopathy (Mad Cow Disease) was disapproved on March 3, 2005, but its counterpart, H.J.Res. 23, has not yet been acted upon by the House. A third joint resolution, S.J.Res. 20, seeking
Congressional Review of Agency Rulemaking
47
disapproval of a rule promulgated by the Environmental Protection Agency to delist coal and oil-direct utility units from the new source category list under the Clean Air Act, was defeated in the Senate by a vote of 47-51 on September 13, 2005. The following chart details the subjects and actions taken on the introduced resolutions. 1. On June 22, 2001, Senator Boxer also introduced S.J.Res. 17, which was intended to disapprove a memorandum issued by the President on March 29, 2001, (66 FR 17301) restoring the Mexico City Policy. However, the Congressional Review Act does not apply to actions by the President. See text at pp. 16-17. OSHA' s ergonomics standard had been controversial since the publication of its initial proposal for rulemaking in 1992 during the Bush Administration.12 OSHA circulated a draft proposal in 1994 which was met with strong opposition from business interests and the formation of an umbrella organization, the National Coalition on Ergonomics, to oppose its adoption. In 1995 OSHA circulated a modified draft proposal, particularly with respect to coverage and regulatory requirements. At the same time, congressional opposition resulted in appropriations riders that prohibited OSHA from promulgating proposed or final ergonomics proposals during the fiscal years 1995, 1996, and 1998.13 The riders did not prohibit OSHA from continuing its development work, however, which included responding to concerns that scientific knowledge of ergonomics was inadequate for rulemaking and that the cost of industry implementation of a broad standard would be extraordinarily costly. Congress mandated reports from the National Academy of Sciences which found a significant statistical link between workplace exposures and musculoskeletal disorders, but also noted that the exact causative factors and mechanisms are not understood. In 2000, congressional attempts to pass another appropriation rider, as well as stand alone prohibitory legislation, failed, and on November 14, 2000, OSHA issued its final standard which became effective on January 16, 200114 Most employer responsibilities under the new standard, however, were not to begin until October, 2001. As soon as the rule was issued two industry groups filed suit in the Court of Appeal for the District of Columbia Circuit challenging OSHA' s authority to issue the rule, its failure to follow proper procedures, the rationality of its provisions, and the adequacy of its scientific and economics analyses. The intervening 2000 elections also altered the political situation with the election of a president and effective control of both Houses of Congress in the same political party. Opponents of the standard introduced a resolution of disapproval under the CRA, S.J.Res. 16, on March 1, 2001. A discharge petition was filed on March 5, and debate on and passage of the resolution occurred on March 6 by a vote of 56-44. That evening the House Rules Committee issued a rule for floor action the next day, and after an hour of debate H.J.Res. 35 was passed on March 7 by a vote of 223-206. The President signed the nullifying measure into law on March 20, 2002.15 In sum, the veto of the ergonomics standards could be seen as the product of an unusual, confluence of factors and events: control of both Houses of Congress and the presidency by the same party, the longstanding opposition by these political actors, as well as by broad components of the industry to be regulated, to the ergonomics standards, and the willingness and encouragement of a president seeking to undo a contentious, end-of-term rule from a previous administration. In all other cases, if there is any discernible pattern to the introduced resolutions, it is to exert pressure on the subject agencies to modify or withdraw the rule, or to elicit support of members, which in some instances was successful. For example, H.J.Res. 67 (1997) was
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Morton Rosenberg
aimed at disapproving an Occupational Health and Safety Administration (OSHA) rule setting exposure limits on methylene chloride, a paint stripper used in the furniture and airplane industries. Its sponsor, Representative Roger Wicker, contended that the rule would harm small businesses without increasing protections for workers. The disapproval resolution never received a floor vote. But the Congressman succeeded in effecting a compromise through the inclusion of provisions in the FY1998 Labor, HHS and Education appropriations measure16 which required OSHA to provide on-site assistance for companies to comply with the new rules without fear of penalty. Mr. Wicker is reported to have stated that he used the disapproval resolution as a vehicle to gather support from influential members, including the chairs of the House Appropriations and Commerce Committees.17 The disapproval resolution mechanism was effectively utilized to accomplish the suspension of a highly controversial rulemaking by the then-Health Care Financing Administration (HCFA). In January 1998, HCFA issued a rule requiring that home health agencies (HHAs) participating in the Medicare program must obtain a surety bond that is the greater of $50,000 or 15 percent of the annual amount paid to the HHA by the Medicare program. In addition, a new HHA entering the Medicare or Medicaid program after January 1, 1998, had to meet a capitalization requirement by showing it actually had available sufficient capital to start and operate the HHA for the first three months. The rule was issued without the usual public participation through notice and comment and was made immediately effective. Substantial opposition to the rule quickly surfaced from both surety and HHA industry representatives. HCFA attempted to remedy the complaints by twice amending the rule, in March and in June, but was unsuccessful in quelling the industry-wide concerns. On June 10, Senator Bond, for himself and 13 other cosponsors, introduced S.J.Res. 50 to disapprove the June 1 HCFA rule. Within a short period, the disapproval resolution had garnered 52 sponsors. On June 17, a companion bill, H.J.Res. 123, was introduced in the House. Thereafter, members of the staffs of Senators Bond, Baucus, and Grassley (all members of the Senate Finance Committee with jurisdiction over the agency) met with HCFA officials and concluded an agreement that (1) the agency would suspend its June 1, 1998 rule indefinitely; (2) a General Accounting Office report would be requested by the committee that would study the issues surrounding the surety bond requirement; (3) on completion and issuance of the GAO report, HCFA would work in consultation with the Congress about the surety bond requirement; and (4) any new rule would not be effective earlier than February 15, 1999, and would be preceded by at least 60 days prior notice. The agreement was memorialized in a June 26 letter to HCFA signed by Senators Bond, Baucus and Grassley.18 The GAO report was issued on January 29, 1999, but the rule suspension was never lifted. No floor vote on the disapproval resolutions occurred in either House. Another illustration of the manner in which the review mechanism has been utilized is shown by S.J.Res. 60 (1996), concerning another HCFA rule, this one dealing with the agency's annual revision of the rates for reimbursement of Medicare providers (doctors and hospitals), which normally would have been effective on October 1, 1996. HCFA, however, submitted the rule to Congress on August 30, 1996, and since it was a major rule, it could not go into effect for 60 days, or until October 29, which meant there would be a significant loss of revenues because the differential rate increases could not be imposed for most of the month of October. Section 801(a)(5), however, provides that if a joint resolution of disapproval is rejected by one House, "the effective date of a rule shall not be delayed by operation of this chapter..." On the morning of September 17, 1996, Senator Lott introduced S.J.Res. 60 and
Congressional Review of Agency Rulemaking
49
that afternoon, by unanimous consent, the resolution "was deemed not passed."19 The HCFA rule went into effect on October 1 as scheduled. A final interesting utilization of the CRA process that had an impact and resulted in an unusual outcome, involved President George W. Bush's restoration, on February 15, 2001, of President Reagan's so-called Mexico City Policy, which limited the use of federal and nonfederal monies by non-governmental organizations (NGOs) to directly fund foreign population planning programs which support abortion or abortion-related activities. President Clinton had rescinded the 1984 Reagan policy when he took office in January 1993.20 A president's authority to determine the terms and conditions on which such NGOs may engage in foreign population planning programs derives from the Foreign Assistance Act of 1961.21 The provision vests the authority to make these determinations exclusively in the Chief Executive. President Reagan delegated his authority to make the determinations to the Administrator of the U.S. Agency for International Development (AID), who issued regulations that specified the conditions upon which grants would be given to NGOs. Thus, when the Mexico City Policy was rescinded in 1993, it was the AID Administrator that did it, at the direction of President Clinton. When President Bush restored it in 2001, he did it in a directive to the AID Administrator22 who simply revived the old conditions by internal agency administrative action. A number of Senate opponents of the policy filed a disapproval resolution on March 20, 2001, S.J.Res. 9, to nullify the Administrator's action, reasoning that it was a covered rule under the CRA since the implementing action was taken by an executive agency official and not by the President himself, and thus was reviewable by Congress.23 The President responded by rescinding his earlier directive to the AID Administrator and thereafter issuing an executive directive under his statutory authority personally implementing the necessary conditions and limitations for NGO grants.24 The presidential action mooted the disapproval resolution, and rendered a subsequent attempt to veto by S.J.Res. 17 ineffective because the CRA does not reach such actions by the President.
DISCUSSION In the ten years since its passage, the CRA process has been used sparingly. Several criticisms and questions concerning the process have been raised by those supporting the wider use of the regulatory disapproving mechanism. These have included a need for a screening mechanism for submitted rules; the absence of an expedited procedure in the House of Representatives for consideration of disapproval resolutions;the deterrent effect of the need for a supermajority to overcome a veto; the scope of the law's coverage; the judicial enforceability of its key requirements; whether a disapproval resolution may be directed at part of a rule; and the effect of a rule nullification on future agency rulemaking in the same area, which, critics believe, have introduced uncertainties and impediments to concerning the use of the process.
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Morton Rosenberg
1. Lack of a Screening Mechanism to Pinpoint Rules that Need Congressional Review; Proposals for Change Proponents of an expanded use of the CRA process have called for screening mechanism that will alert committees to rules that may raise important or sensitive substantive issues. In this view, their perceived lack prevents busy committees from prioritizing such issues. As indicated above, the Comptroller General's reports on major rules serve as check lists as to whether legally required agency tasks have been done and not as substantive assessments of whether they were done properly or whether the rules accord with congressional intent. Lack of knowledge of the existence of such sensitive rules by jurisdictional committees or interested Members is rarely the case. What critics say is absent is in- depth scrutiny and analysis of individual rules by an authoritative and presumably neutral source that may provide the basis for triggering meaningful congressional review. Support for an independent substantive screening body was signaled by the introduction by Representative Sue Kelly of H.R. 1704 in the 105th Congress, a bill that would have established a Congressional Office of Regulatory Analysis.25 The bill was referred to the House Judiciary and Governmental Reform and Oversight Committees both of which favorably reported differing versions of the legislation.26 Both versions would have established an independent Congressional Office of Regulatory Analysis (CORA) to be headed by a director appointed by the House Speaker and the Senate Majority Leader for a term of four years, with service in the office limited to no more than three terms. The current review functions of the Comptroller General under the CRA and the Congressional Budget Office under the Unfunded Mandates Act of 1995 would be transferred to the proposed CORA. The Judiciary Committee's version, in addition to having the Office make "an assessment of an agency's compliance with the procedural steps for 'major rules' required by CRA, directs the proposed CORA to "conduct its own regulatory impact of these `major rules.27 The bill as reported by the Government Reform Committee would have allowed the CORA director to use "any data and analyses generated by the Federal agency and any data of the Office" in analyzing the submitted rule. Both bills provided that a similar analysis of nonmajor rules was to be conducted when requested to do so by a House or Senate Committee or by individual members of either House. First priority for the conduct of such analyses was given to all major rules. Secondary priority was assigned to committee requests. Tertiary priority was given individual member requests. Finally, under the Judiciary Committee version, the report was to be furnished within 45 days after Congress receives notification of the rule; the Governmental Reform bill would have allowed 30 days. H.R. 1704 received no floor action during the 105th Congress. Critics maintain that an independent office of regulatory analysis would serve the congressional need for objective information necessary to evaluate agency regulations. In their view, it would also provide credibility and impetus for wider utilization of the review mechanism. Further, by providing intensive review of certain non-major rules, the possibility of OIRA "hiding" significant rules by not designating them as "major" is forestalled. Those opposing the establishment of an office of this kind might argue that creation of a new congressional bureaucracy for review purposes would be unnecessarily duplicative of what the agencies have already done as well as extraordinarily expensive. The requirement of the Judiciary Committee's version that a CORA do its own cost-benefit analysis from scratch
Congressional Review of Agency Rulemaking
51
could be pointed to as an unknown cost factor, as well as a task that may not be possible to perform adequately within the allotted 45 days. Congress agreed upon a limited test of the CORA concept, late in the 106th Congress, with the passage of the Truth in Regulating Act of 2000.28 That legislation established a three year pilot project for the General Accounting Office (now renamed the Government Accountability Office (GAO)) to report to Congress on economically significant rules. Under this pilot program, whenever an agency published an economically significant proposed or final rule a chairman or ranking minority member of a committee of jurisdiction of either House of Congress may request the Comptroller General (CG) to review the rule. The CG was to report on each rule within 180 calendar days. The report had to contain an "independent evaluation" by the CG of the agency's cost-benefit analysis. We are aware of only one request ever made pursuant to the provision. That was submitted in January 2001 by the chairs of the jurisdictional committees of the House and Senate with respect to the Department of Agriculture's forest planning and roadless area rule. GAO advised the requesters that although Act authorized $5 2 million per year for the program, no monies had been appropriated and it could not proceed with the request. No further action was taken on the request and Congress never enacted an appropriation, thereby forestalling implementation of the project. It may be noted that the 180-day reporting period did not mesh exactly with the time period under the CRA for consideration of rules subject to resolution of disapproval, although completed requests for analyses of proposed rules might coincide with such reviews. In any event, the pilot program established by the act expired in January 2004. In the 109th Congress, Representative Sue Kelly introduced H.R. 1167, which would make permanent the authority of Congress to request GAO to perform regulatory analyses. The new Truth in Regulating Act (TWA), if enacted as a permanent responsibility of GAO, would not appear that require a specific appropriation to require agency performance of the vested task as was the case when it was established as a "pilot project." It would, in effect, be an unfunded mandate. Although GAO currently does (and historically has always done) some reviews of agencies' rules at Members' requests under its current appropriations, both the volume and nature of the reviews are likely to be substantially different and may affect its ability to conduct other agency reviews. A similar bill, H.R. 725, section 5, would also make TIRA permanent, but would authorize up to $5 million for the revenues. Although GAO may view this bill as preferable, if the authorized funds are not appropriated, GAO could be in the same "unfunded mandate" situation as it would under H.R. 1167. In an apparent attempt to avoid the criticisms of the CORA model and to remedy some of the perceived impediments to the effectiveness of the CRA, Representative Ginny BrownWaite introduced H.R. 3356, the Joint Administrative Procedures Committee Act of 2003, in the 108th Congress which would amend the CRA by establishing a joint congressional committee with broad authority to investigate, evaluate and recommend actions with respect to the development of proposed rules, the amendment or repeal of existing rules, and disapproval of final rules submitted for review under the CRA.29 The responsibilities are in addition to the current statutory framework providing for review of new rules that are required to be reported. A new provision permits the joint committee to recommend disapproval of new rules to jurisdictional committees. The proposed Joint Administrative Procedures Committee (JAPC) would be composed of 12 members from each House with no more than 7 from one political party, selected by the Senate Majority Leader and the Speaker of the House. The JAPC would receive all agency submissions of covered rules and provide
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copies to all jurisdictional committees. The JACP has sixty days to consider the rule. The agency could be required to submit such reports as is required by the joint committee such as a cost-benefit analysis or risk assessment. If no action is taken by JACP, the rule may go into effect. If a majority determines that rule is inconsistent with congressional intent in the area, JACP may recommend a disapproval resolution to the House and Senate jurisdictional committees. In its report to the jurisdictional committees JACP is to pinpoint the objectionable provisions of the rule. The proposal would establish a new expedited consideration procedure for disapproval resolutions in the House of Representatives. On the third legislative day after a joint resolution is recommended by JACP, it is in order for any member of the House to move to proceed to consideration of the disapproval resolution. It is a privileged, non-debatable motion and once agreed to must be considered before any other business under expedited procedures. Only one hour of debate would be allowed. Finally, Section 801(b)(2) of the CRA is amended to provide that an agency may promulgate a new rule without new statutory authorization if it carries out the recommendation set forth in the report submitted by the JACP to the jurisdictional committees. The bill was referred to the House Committees on Rules and Judiciary. The Judiciary Committee referred it to its Subcommittee on Commercial and Administrative Law. No action was taken by either Committee. Representative Brown-Waite' s proposal was reintroduced in the 109th Congress as H.R. 3148 but has received no action as yet. Another bill, H.R. 576, introduced by Representative Ney in the 109th Congress, is similar in many respects to H.R. 3148, but quite different in certain fundamental ways. Both would create a 24 member House-Senate joint committee capable of holding hearings, requiring the attendance of witnesses, and making rules regarding its organization and procedures. Both also provide for an expedited consideration procedure in the House. Significant differences appear, however, with respect to the roles assigned to the joint committees. Under H.R. 3148, the current process established by the CRA for congressional review of new agency rules is maintained: required reports on new rulemakings are submitted to each House and such reports are sent to the jurisdictional committees of each House for action. Rules required to be reported are also sent to the joint committee. Special rules are provided for discharge from committees in the Senate and, under proposed H.R. 3148, from House committees. Expedited procedures are in effect for floor proceedings in each House. The only part to be played by the joint committee in the new rule review process under H.R. 3148 is to recommend to jurisdictional committees that certain submitted new rules be subject to disapproval resolutions. Deference to the current roles of jurisdictional committees is also maintained under H.R. 3148 with respect to the new duties given to the joint committee to selectively review existing federal agency rules in effect before the enactment of the CRA and existing major rules of federal agencies promulgated since April 1996. The joint committee may only recommend to jurisdictional committees that they take appropriate legislative action to amend or repeal such laws. Under H.R. 576, the joint committee, rather than the jurisdictional committees of each House, receives the report of covered rules submitted for review by federal agencies as well as cost-benefit analyses and other materials. Jurisdictional committees receive copies of these materials from the joint committee. GAO is to submit its report on major rules to the joint committee, not the jurisdictional committees concerned. Major rules take effect no earlier than 60 days after the rule is published in the Federal Register or is received by the joint committee. Joint resolutions of disapproval are reported by the joint committee to the
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respective Houses for action. The joint committee may also report "by bill ... recommendations with respect to matters within the jurisdiction of their respective Houses which are referred to the joint committee or otherwise within the jurisdiction of the joint committee." It would appear, then, that the joint committee would have the predominant role in the congressional review process, which might inject a highly controversial issue -diminution of the role of jurisdictional committees - in a reform debate already freighted with difficult and sensitive political and legal considerations. A third bill introduced in the 109th Congress is H.R. 931, by Representative Hayworth, would prohibit any regulation proposed by a federal agency from going into effect until a bill enacted under expedited consideration procedures applicable to to the rule is signed into law. The term "regulation" is given the broad meaning of the term "rule" as defined in 5 U.S.C. 551(4). The bill does not specifically reference the current CRA process. In fact, it would supercede it and require rulemaking agencies to seek approval of all covered "regulations." There is no provision for congressional processing in a timely and expeditious manner a potentially huge member proposed regulations.
2. Lack of an Expedited House Procedure Those unsatisfied with the current procedure indicate that the current absence of an expedited consideration procedure in the House of Representatives may well be a factor affecting use of the process in that body since, as a practical matter, it will mean engaging the House leadership each time a rule is deemed important enough by a committee or group of Members to seek speedy access to the floor. In view of the limits both on floor time and the ability to gain the attention of the leadership, it is argued that only the most well situated in the body will be able to gain access within the limited period of review.30 It is also maintained that a perception that no action will be taken in the House might deter Senate action.
3. The Deterrent Effect of the Ultimate Need for a Supermajority to Veto a Rule A consideration that critics maintain limits expanded use of the full CRA review mechanism has been the realization that any joint resolution disapproving a rule that does not have the support of the administration would be vetoed and require a two-thirds vote in each House to override. The deterrent potential of the need for a supermajority in each House to overcome a presidential veto is likely to be significant, unless the object of the exercise is simply to provide the impetus for informal accommodations, such as occurred in the HCFA surety bond matter, or to influence Members to support alternative legislation. Critics assert that a realization by agencies over time that passage of a disapproval resolution is highly unlikely could substantially reduce the efficacy of such a threat. Additionally, they maintain that a possible consequence of such an assumption is that agencies will not factor in congressional disapproval as part of the rule development process.31 Since the ergonomics veto, 19 resolutions of disapproval with respect to 14 rules have been introduced, only one of which has been acted upon ( by one House),32 which some see as a return to the prior practice of using the mechanism to facilitate bargaining.
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Thus, even with the successful disapproval of the ergonomics standard, critics are concerned that the supermajority hurdle still remains. One solution they have proposed is to establish a multi-tiered disapproval mechanism. That is, instead of all rules, major or nonmajor, being treated equally in that they can only be overturned by a joint resolution of disapproval, a process in which the entire burden of action is on the Congress, some rules might be designated for more selective, special review. For example, they argue that major or significant rules might be subject to a joint resolution of approval. Under such a scheme a major or significant rule would not become effective unless a joint resolution approving it passed both Houses within a specified period of time.33 To make such a scheme effective someone or some body, other than the OIRA Administrator or a congressional agency, such as the proposed CORA, might be vested with the authority to designate which rules are "major" or "significant" and thereby subject to the affirmative approval requirement. A benefit from the critics' standpoint is that the burden for supporting and justifying such rules falls on the promulgating agencies. All other rules would be subject to disapproval resolutions. Another proposal is to subject all covered rules to congressional approval and establish an expedited procedure whereby non-controversial rules may be sped through leaving only a few for close consideration.34
4. The Reluctance to Disapprove an Omnibus Rule where only One Part of the Rule Raises Objection Section 808 of the review provision sets forth the mandatory text of any joint resolution of disapproval: "That Congress disapproves the rule submitted by the –––––– relating –––––, and such rule shall have no force or effect. (The blank spaces being appropriately filled in)." The quoted text refers to "the rule" and "such rule," indicating a rule in its entirety. The experience of 33 joint resolutions of disapproval thus far introduced is that the first blank is filled with the name of the promulgating agency and the second with a generic title or description of the rule.35 Similarly, the text of the review provision refers to "such rule," "a rule," or "the rule," with no language a expressly referring to a part of any rule under review. The procedure leading to a vote on the proposed disapproval resolution allows for no amendments, and the final vote is up or down on the joint resolution as introduced. The legislative history of the provision is similarly uniform in using language that would ordinarily indicate a reference to a submitted rule in its entirety, except in one instance. During a discussion of the Section 802 procedure that would obtain when one House completes its action on a joint resolution and sends to it to the other House before the second House has yet to complete any action, the following comment is made: ... Subsection 802(f) sets forth one unique provision that does not expire in either House. Subsection 802(f) provides procedures for passage of a joint resolution of disapproval when one House passes a j oint resolution and transmits it to the other House that has not yet completed action. In both Houses, the joint resolution of the first House to act shall not be referred to a committee but shall be held at the desk. In the Senate, a House-passed resolution may be considered directly only under normal Senate procedures, regardless of when it is received by the Senate. A resolution of disapproval that originated in the Senate may be considered under the expedited procedures only during the period specified in subsection
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802(e). Regardless of the procedures used to consider a joint resolution in either House, the final vote of the second House shall be on the joint resolution of the first House (no matter when that vote takes place). If the second House passes the resolution, no conference is necessary and the joint resolution will be presented to the President for his signature. Subsection 802(f) is justified because subsection 802(a) sets forth the required language of a joint resolution in each House, and thus, permits little variance in the joint resolutions that could be introduced in each House.36 (Emphasis supplied).
The last two sentences as seen by some as raising uncertainty. The next to last sentence would appear to contemplate the possibility of a conference to resolve differences in resolutions. The last sentence minimizes what those differences could be. Some have suggested that the explanation contemplates that parts of rules may be the subject of disapproval resolutions, arguing that the framers of the provision would have known that many rules are complex and contain a variety of provisions, only one or a few of which may be objectionable, and would not have required a whole rulemaking to be brought down simply because of one offending portion out of many It has also been argued that in light of the Section 801(b)(2) prohibition against agency issuance of a rule "in substantially the same form" after passage of a disapproval resolution unless Congress by subsequent law authorizes it, not allowing rejection of part of a rule would have a draconian result. In fact, an up or down vote on the entire rule would appear to have been the intent of the framers of the review provision. The language and structure of the provision, and the supporting explanation of the legislative history, contemplates a speedy, definitive and limited process. It is not unlike the legislative processes created for congressional actions dealing with military base closings,37 international trade agreements,38 and presidential reorganization plans39 among others. Each dealt with complex, politically sensitive decisions which allowed only an up or down vote by the Congress on the entire package presented. It was understood that piecemeal consideration would delay and perhaps obstruct legislative resolution of the issues before it. For similar reasons, the statutory structure and legislative history of the review provision strongly indicate that Congress intended the process to focus on submitted rules as a whole and not to allow veto of individual parts. Perhaps a proper reading of the quoted portion of the legislative history is that it was contemplating the possibility that the blank to be filled in after "relating to" might have different generic descriptions of the rule subject to disapproval. A broader reading of these sentences would not otherwise appear warranted by either the legislative language itself or the rest of the explanatory legislative history. As a practical matter, if this reading is correct it may be a factor in the limited use of the mechanism. As indicated, nullifying a rule means disabling an agency from regulating in the area covered by the rule unless Congress passes further authorization legislation, a significant consequence of any disapproval action. On the other hand, expressly authorizing nullification of portions of a rule might allow competing disapproval resolutions within each House and the certainty of a long, drawn out conference with the possibility of no agreement.
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5. The Uncertainty of which Rules are Covered by the CRA The framers of the congressional review provision intentionally adopted the broadest possible definition of the term "rule" when they incorporated Section 551(4) of the APA. As indicated previously,40 the legislative history of Section 551(4) and the case law interpreting it make it clear that it was meant to encompass all substantive rulemaking documents — such as policy statements, guidances, manuals, circulars, memoranda, bulletins and the like — which as a legal or practical matter an agency wishes to make binding on the affected public. The legislative history of the CRA emphasizes that by adoption of the Section 551 (4) definition of rule, the review process would not be limited only to coverage of rules required to comply with the notice and comment provisions of the APA or any other statutorily required variation of notice and comment procedures, but would rather encompass a wider spectrum of agency activities characterized by their effect on the regulated public: "The committee's intent in these subsections is ... to include matters that substantially affect the rights or obligations of outside parties. The essential focus of this inquiry is not on the type of rule but on its effect on the rights and obligations of non-agency parties."41 The framers of the legislation indicated their awareness of the practice of agencies avoiding the notification and public participation requirements of APA notice-and-comment rulemaking by utilizing the issuance of other, non-legislative documents as a means of binding the public, either legally or practically,42 and noted that it was the intent of the legislation to subject just such documents to congressional scrutiny: ... The committees are concerned that some agencies have attempted to circumvent noticeand-comment requirements by trying to give legal effect to general statements of policy, "guidelines," and agency policy and procedure manuals. The committees admonish the agencies that the APA' s broad definition of "rule" was adopted by the authors of this legislation to discourage circumvention of the requirements of chapter 8.43
It is likely that virtually all the 35,490 non-major rules thus far reported to the Comptroller General have been either notice and comment rules or agency documents required to be published in the Federal Register. This would mean that perhaps thousands of covered rules have not been submitted for review.44 Pinning down a concrete number is difficult since such covered documents are rarely if ever published in the Federal Register and thus will come to the attention of committees or Members only serendipitously. Eight such agency actions have come to the attention of committee chairmen and Members and were referred to the Comptroller General for determinations whether they were covered rules. In five of the eight cases the CG determined the action documents to be covered rules. See letter to Honorable Lane Evans, Ranking Minority Member, House Committee on Veterans' Affairs, B-292045 (May 19, 2003) (Department of Veterans Affairs memorandum terminating the Department's Vendee Loan Program is not a rule that must be submitted to Congress because it is exempt under Section 804(3)(B) and (C) as a rule relating to "agency management" or "agency organization, procedure, or practice that does not substantially affect the rights or obligations of non-agency parties."); letter to Honorable Ted Strickland, B291906 (February 28, 2003) (Department of Veterans Affairs memorandum instructing all directors of health care networks to cease any marketing activities to enroll new veterans in such networks is excluded from CRA coverage by Section 804(3)(C) which
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excludes "any agency rule of agency organization, procedure, or practice that does not substantially affect the rights or obligations of non-agency parties."); letter to Honorable Doug Ose, Chairman, House Subcommittee on Energy Policy, Natural Resources, and Regulatory Affairs, Committee on Government Reform, B-287557 (May 14, 2001)(Department of Interior's Fish and Wildlife Service's Trinity River "Record of Decision" is a rule covered by the CRA because it is an agency statement of general applicability and future effect designed to implement, interpret, or prescribe law or policy and is an "agency action[ ] that substantially affect[s] the rights and obligations of outside parties."); letter to the Hon. James A Leach, Chairman, House Banking Committee, B-286338 (October 17, 2000)(Farm Credit Administration's national charter initiative held to be a rule under the CRA); letter to Honorable David M. McIntosh, Chairman, Subcommittee on National Economic Growth, Natural Resources, and Regulatory Affairs, House Committee on Government Reform and Oversight, B-281575 (January 20, 1999) (EPA "Interim Guidance for Investigating Title VI Administrative Complaints Challenging Permits" held to be covered because it created new, mandatory steps in the procedure for handling disparate impact assessments which gave recipients new rights they did not previously possess for obtaining complaint dismissals, a substantive alteration of the previous regulation.); letter to Senator Conrad Burns, B278224 (November 10, 1997) (the American Heritage River Initiative announced by the Council on Environmental Quality was not a covered rule because it was established by presidential executive order and direction and the President is not an "agency" under the APA and is not subject to the provisions of the APA); letter to Honorable Ted Stevens, Chairman, Senate Appropriations Committee, et al, B275178 ( July 3, 1997) (Tongass National Forest Land and Resources Management Plan held an agency statement of general applicability and future effect that implements, interprets, and prescribes law and policy); letter to Honorable Larry Craig, Chairman, Senate Committee on Energy and Resources, B-274505 (September 16, 1996) (memorandum of Secretary of Agriculture concerning the Emergency Salvage Timber Sale Program held to be a covered rule because it is of general applicability and interprets and implements the statutory program.). The GAO opinion on the American Heritage River Initiative rests its rationale that a presidential directive to an agency that results in substantive action by that agency is not thereby covered by the CRA based on the Supreme Court's rulings in Franklin v. Massachusetts, 505 U.S. 788, 800 (1992) and Dalton v. Spector, 511 U.S. 462, 469 (1994). In light of Chamber of Commerce v. Reich, 74 F. 3d 1322 (D.C. Cir. 1996) and National Family Planning v. Sullivan, 979 F. 2d 227 (1992), which successfully challenged substantive changes in rules that were directed by a presidential directive, the GAO General Counsel's conclusions may be problematic. Also questionable is the General Counsel's analysis in its February 28, 2003 opinion concluding that a Department of Veterans Affairs (DVA) memo terminating a long-time veterans health outreach program was an exempt agency practice that had no substantial effect on the rights of non-agency parties. In contrast with its May 19, 2004, opinion dealing with a termination of a DVA vendee loan program, where it closely examined the statutory basis of the loan program and found that it was established on the basis of discretionary authority of the Secretary and provided no direct benefits to veterans, the General Counsel made no mention that the Congress had charged the Secretary of DVA "with the affirmative duty of seeking out eligible veterans and eligible dependants and providing them" with federal benefits and services. Representative Strickland joined with the Vietnam Veterans of
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American in a suit seeking declaratory and injunctive relief to restore the program. In Vietnam Veterans of America v. Principi, 2005 WL 901133 (D.D.C. March 11, 2005), the district court found that "[u]nder 38 U.S.C. 7721, 7722, and 7227, Congress charges the Secretary of the Department of Veterans Affairs with the affirmative duty to `provide outreach services.' This duty is not discretionary but must be done in accordance with Congress' wishes." The court concluded, however, that since Congress appropriated a lumpsum for both outreach services and health care services, and the record showed that some monies had been expended for outreach services, it indicated that Congress meant to allow the Secretary the discretion to decide "the manner in which [outreach services] are to be provided." The critique here is that the Comptroller General's failure to examine the Secretary's duty under the statute in question eliminated the possibility finding a substantial effect of the agency's action on the rights or obligations of non-agency parties, thereby forestalling the opportunity for legislative review under CRA procedures. It is interesting to note that subsequent to the CG' s decision and the filing of the lawsuit, Congress enacted a limitation on the Fiscal Year 2004 VA appropriation stating, [n] one of the funds made available may be used to implement any policy prohibiting the Directors of the Veterans Integrated Service Networks from conducting outreach or marketing to enroll new veterans within their respective networks," an apparent indication that Congress thought the controverted policy could be having an impact on potential beneficiaries. See Pub.L. 108-199, H.R. 2673, sec. 418 (2004). Believing such instances to be only a small portion of unreported agency actions, GAO, at the behest of the House Government Reform and Oversight Subcommittee on National Economic Growth, Natural Resources, and Regulatory Affairs, engaged in discussions with the Office of Management (OMB) during 1998 for the creation of a uniform reporting form for use by agencies in reporting covered rules to the CG, and for the promulgation of an OMB guidance document covering such matters under the review provision as the definition of a covered rule, reporting requirements, the good cause exemption, and the consequences of failing to report a rule, among others. The failure to issue such guidance prompted insertion of the following directive in the FY1999 appropriation for OMB: "OMB is directed to submit a report by March 31, 1999, to the Committees on Appropriations, the Senate Committee on Governmental Affairs, and the House Committee on Government Reform and Oversight that ... issues guidance on the requirements of 5 U.S.C. Sec. 801 (a) (1) and (3); sections 804 (3), and 808 (2), including a standard new rule reporting form for use under section 801 (a)(1)(A)(B)."45 OMB, in the view of the Subcommittee, has failed to substantially comply with that statutory directive.46 If the guidance issued in compliance with the statutory direction is not consonant with the congressional understanding of the intent, meaning and scope of the congressional review provision, it might be considered as a vehicle for oversight hearings and possible remedial legislation.
6. The Uncertainty of the Effect of an Agency's Failure to Report a Covered Rule to Congress Section 801(a)(1)(A) of the CRA provides that "[b]efore a rule can take effect," the Federal agency promulgating such rule shall submit to each House of Congress and the
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Comptroller General a report containing the text of the rule, a description of the rule, including whether it is a major rule, and its proposed effective date. Section 805 states that "no determination, finding, action or omission under this chapter shall be subject to judicial review." The Department of Justice (DOJ) has broadly hinted that the language of Section 805 "precluding judicial review is unusually sweeping" so that it would presumably prevent judicial scrutiny and sanction of an agency's failure to report a covered rule.47 DOJ has succeeded with its preclusion argument in two federal district court rulings. More recently the rationale of those opinions has been called into question and rejected by a third district court. In Texas Savings and Community Bankers Assoc. v. Federal Housing Finance Board,48 three thrift associations and two of their trade associations sued the Federal Housing Finance Board challenging one of its policies regarding the home mortgage lending industry. The plaintiff's argued, inter alia, that the policy was a rule required to be reported to Congress under the CRA and the failure to report it precluded its enforcement. The government argued that Section 805 was a blanket preclusion of judicial review. In response to plaintiff's contention that Section 805 only precluded review of any "determination, finding, or omission" by Congress, the court held that "the statute provides for no judicial review of any 'any determination, finding, action or omission under this chapter,' not 'by Congress under this chapter.' The court must follow the plain English. Apparently, Congress seeks to enforce the [CRA] without the able assistance of the courts.''49 The court made no reference to the scheme of the act or its legislative history. The Texas district court's "plain meaning" rationale was cited with approval by an Ohio district in United States v. American Electric Power Service Colp.50 That case was one of many involving an extensive litigation campaign by the Environmental Protection Agency (EPA), begun in the mid-1990's to establish the extent to which a power plant or factory may alter its facilities or operations without bringing about a "modification" of that emission source so as to trigger the Clean Air Act's New Source Performance Standards and preconstruction "new source review."51 Among the issues common in these cases, and raised in this case, was whether EPA's determination to begin a campaign of litigation enforcement after many years of no enforcement was a substantive change that had to be reported to Congress under the CRA. It was among 123 affirmative defenses raised by defendants, nine coal-fired power plants in Ohio, Virginia, and West Virginia, which the Government moved to dismiss. Citing the Texas Savings case approvingly, the district court agreed "that the language of Section 805 is plain" and that "[d]eparture from the plain language is appropriate in the 'rare cases [in which] the literal application of a statute would produce a result demonstrably at odds with the intention of its drafters ... or when the statutory language is ambiguous.' ... In all other cases, the plain meaning of the statute controls. "52 The court did not indicate whether it had attempted to discern whether there was any evidence of congressional intent at odds with the court's plain meaning reading. It did, however, provide an alternative rationale: "Furthermore, this Court is not convinced that the instant enforcement action amounts to rulemaking which would be covered by 5 U.S.C. 801 et. seq., in the first instance," without elaboration.53 In United States v. Southern Indiana Gas and Electric Co.,54 the court faced the same issue in a motion for summary judgment by the power company defendant. Rejecting the Texas Savings and American Electric Power precedents, it found that Section 805 is ambiguous and susceptible to two possible meanings: that Congress did not intend for any court review of an agency's compliance with the CRA or that Congress only intended to
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preclude judicial review of its own determination, findings, actions or omissions made under the CRA after a rule had been submitted to it for review. Adopting the first alternative, argued for by the Government and adopted by the Texas Savings andAmerican Electric Power courts, would, according to the court, allow agencies "to evade the strictures of the CRA by simply not reporting new rules and courts would be barred from reviewing their lack of compliance This result would be at odds with the purpose of the CRA, which is to provide a check on administrative agencies' power to set policies and essentially legislate without Congressional oversight. The CRA has no enforcement mechanism, and to read it to preclude a court from reviewing whether an agency rule is in effect that should have been reported would render the statute ineffectual."55 The court found that the post-enactment legislative history "buttresses the 'limited scope' of the CRA' s judicial review provision" but was careful to acknowledge that "the lack of formal legislative history for the CRA makes reliance on this joint statement troublesome." However, the court made it clear that "this court reached its conclusion about the limited scope of the judicial review provision of the CRA based on the text of the statute and overall purpose of the act. The legislative history only serves to further reinforce the Court's conclusion."56 It is certainly arguable that the Southern Indiana court's view of the limited preclusiveness of Section 805 is plausible and persuasive. Indeed, an even stronger case can be made from a closer analysis of the text and structure of the act taken as a whole. Moreover, although the court was correct as a general matter that post- enactment legislative history normally is given less weight, there are a number of Supreme Court rulings that recognize that under certain circumstances, arguably applicable here, contemporaneous explanations of key provisions' intent have been found to be an "authoritative guide" to a statute's construction. In one instance the Court relied on an explanation given eight years after the passage of the legislation. The plain, overarching purpose of the review provision of the CRA was to assure that all covered final rulemaking actions of agencies would come before Congress for scrutiny and possible nullification through joint resolutions of disapproval.57 The scheme provides for the delayed effectiveness of some rules deemed innately important ("major rules"), Section 801(a)(3), and temporarily waives the submission requirement of Section 801 for rules establishing, modifying, opening, closing or conducting a regulatory program for a commercial, recreational, or subsistence activity related to hunting, fishing, or camping, or for a rule an agency "for good cause" finds that notice and public procedure are impractical, unnecessary, or contrary to the public interest. Section 808. Rules promulgated pursuant to the Telecommunications Act of 1996 are excluded from the definition of "major rule". But all such rules must ultimately be submitted for review. And while the scheme anticipates that some (or even most) rules will go into effect before a joint resolution of disapproval is passed, the law provides that enactment of a joint resolution terminates the effectiveness of the rule and that the rule will be treated as though it had never taken effect. Sections 801(b)(1), 801(f). Further, a rule that has been nullified cannot be reissued by an agency in substantially the same form unless it is specifically authorized to do so by law after the date of the disapproval. Section 801(b)(2). The review scheme also requires a variety of actions by persons or agencies in support of the review process, and time for such actions to be scrutinized by both Houses to implement the scheme. Thus, the Comptroller General must submit a report to Congress on each major rule submitted within 15 calendar days after its submission or publication of the rule (Section
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801(a)(2)(A)); the Administrator of OIRA determines whether a rule is a "major rule" (Section 804(2)); and after a rule is reported the Senate has 60 session days, and the House 60 legislative days, to pass a disapproval resolution under expedited procedures. Section 802. But Congress has preserved for itself a period of review of at least 60 session or legislative days. Therefore, if a rule is reported within 60 session days of the Senate (or 60 legislative days of the House) prior to the date Congress adjourns a session of the Congress, the period during which Congress may consider and pass a joint resolution of disapproval is extended to the next succeeding session of the Congress. Section 801(d)(1). Thus the statutory scheme is geared toward congressional review of all covered rules at some time; and a reading of the statute that allows for easy avoidance defeats that purpose. Interpreting the judicial review preclusion provision to prevent court scrutiny of the validity of administrative enforcement of covered but non-submitted rules appears to be neither a natural nor warranted reading of the provision. Section 805 speaks to "determination[s], fmding[s], action[s], or omission[s] under this chapter," a plain reference to the range of actions authorized or required as part of the review process. Thus Congress arguably did not intend, as is more fully described below, to subject to judicial scrutiny, its own internal procedures, the validity of Presidential determinations that rules should become effective immediately for specified reasons, the propriety of OIRA determinations whether rules are major or not, or whether the Comptroller General properly performed his reporting function. These are matters that Congress can remedy by itself. However, without the potential of court invalidation of enforcement actions based on the failure to submit covered rules, agencies are not likely to comply with submission requirements. If Section 805 is read so broadly, it would arguably render ineffective as well the Section 801(b)(2) prohibition against an agency promulgating a new rule that is "substantially the same" as a disapproved rule unless it "is specifically reauthorized by a law enacted after" the passage of a disapproval resolution. It is more than likely that a determination whether a new or reissued rule is "substantially the same" as a disapproved rule is one that a court will be asked to make.58 Congress appears to have contemplated (and approved) judicial review in this and other situations when it provided in Section 801(g) that "[i]f Congress does not enact a joint resolution of disapproval under section 802 respecting a rule, no court or agency may infer any interest of the Congress from any action or inaction of the Congress with regard to such rule, related statute, or joint resolution of disapproval." The legislative history of the review provision confirms this view of the limited reach of the judicial review preclusion language. A key sponsor (Representative Hyde) of the legislation, Representative McIntosh, explained during the floor debate on H.R. 3136 that "Under Section 8(a)(1)(A), covered rules may not go into effect until the relevant agency submits a copy of the rule and an accompanying report to both Houses of Congress."59 Shortly thereafter, the principal Senate and House sponsors of H.R. 3136 published a Joint Explanatory Statement in the Congressional Record providing a detailed explanation of the provisions of the congressional review provision of the CRA and its legislative history. Senator Nickles explained: Mr. NICKLES. Mr. President, I will submit for the RECORD a statement which serves to provide a detailed explanation and a legislative history for the congressional review title of H.R. 3136, the Small Business Regulatory Enforcement Fairness Act of 1996. H.R. 3136 was passed by the Senate on March 28, 1996, and was signed by the President the next day... .
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Morton Rosenberg Because title BI of H.R. 3136 was the product of negotiation with the Senate and did not go through the committee process, no other expression of its legislative history exists other than the joint statement made by Senator REID and myself immediately before passage of H.R. 3136 on March 28. I am submitting a joint statement to be printed in the RECORD on behalf of myself, as the sponsor of the S. 219, Senator REID, the prime co-sponsor of S. 219, and Senator STEVENS, the chairman of the Committee on Governmental Affairs. This joint statement is intended to provide guidance to the agencies, the courts, and other interested parties when interpreting the act's terms. The same statement has been submitted today in the House by the chairmen of the committees of jurisdiction over the congressional review legislation.60
The Joint Explanatory Statement is clear as to the scope and limitation of the judicial review provision: Limitation on judicial review of congressional or administrative actions Section 805 provides that a court may not review any congressional or administrative "determination, finding, action, or omission under this chapter". Thus, the major rule determinations made by the Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget are not subject to judicial review. Nor may a court review whether Congress complied with the congressional review procedures in this chapter. This latter limitation on the scope of judicial review was drafted in recognition of the constitutional right of each House of Congress to "determine the Rules of its Proceedings". U.S. Const. art. I, §5, cl. 2, which includes each house being the final arbiter of compliance with such Rules. The limitation on a court's review of subsidiary determinations or compliance with congressional procedures, however, does not bar a court from giving effect to a resolution of disapproval that was enacted into law. A court with proper jurisdiction may treat the congressional enactment of a joint resolution of disapproval as it would treat the enactment of any other federal law. Thus, a court with proper jurisdiction may review the resolution of disapproval and the law that authorized the disapproved rule to determine whether the issuing agency has the legal authority to issue a substantially different rule. The language of subsection 801(g) is also instructive. Subsection 801(g) prohibits a court or agency from inferring any intent of the Congress only when "Congress does not enact a joint resolution of disapproval", or by implication, when it has not yet done so. In deciding cases or controversies properly before it, a court or agency must give effect to the intent of the Congress when such a resolution is enacted and becomes the law of the land. The limitation on judicial review in no way prohibits a court from determining whether a rule is in effect. For example, the authors expect that a court might recognize that a rule has no legal effect due to the operation of subsections 801(a)(1)(A) or 801(a)(3).61
The Justice Department has suggested that such post-enactment legislative history should not carry any weight, particularly in view of the unambiguous nature of the preclusion language at issue.62 However, as discussed below, the courts appear to have taken a contrary view in analogous interpretive situations. The Joint Explanatory Statement is a contemporaneous explanation of the congressional review provision by the legislative sponsors of the legislation which is consonant with the text and structure of the legislation. Such statements by legislative sponsors have been described by the Supreme Court as an "authoritative guide to the statute's construction." North
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Haven Bd. of Education v. Bell, 456 U.S. 512, 526-27 (1982)(citing a bill summary placed in the Congressional Record by the bill's sponsor after passage, and explanatory remarks made two years later by the same sponsor); Pacific Gas & Electric Co. v. Energy Resources Conservation and Development Commission, 461 U.S. 190, 211 n. 23 (1983)(relying on a 1965 explanation by "an important figure in the drafting of the 1957 [Atomic Energy Act"]); Grove City College v. Bell, 465 U.S. 555, 567 (1984)(remarks of sponsors deemed authoritative when they are consistent with the language of the legislation). Finally it may be noted that analogous preclusion of judicial review provisions in the original Paperwork Reduction Act of 1980, P.L. 96-511 and in the 1995 revision of the act, P.L. 104-13, have been uniformly construed by the courts to allow enforcement of its public protection provision. Thus 44 U.S.C. 3504 (1994), which authorized the Director of OMB to review and approve or disapprove information collection requirements in agency rules, and to assign control numbers to such forms, provided that "there shall be no judicial review of any kind of the Director's decision to approve or not to act upon a collection of information requirement contained in an agency rule." 44 U.S.C. 3504(h)(9). A similar provision appears in the 1995 revision of the Paperwork Reduction Act.63 The 1980 legislation also contained a "public protection" provision which absolved a person from any penalty for not complying with an information collection request if the form did not display an OMB control number or failed to state that the request was not subject to the act.64 The public protection provision, Section 3512, has been the subject of numerous court actions, some finding it applicable and providing a complete defense to noncompliance, others finding it inapplicable. But no court has ever raised a question with respect to preclusion of judicial review.65 A reviewing court construing the language of the congressional review provision, the structure of the legislation, and its legislative history, including post- enactment statements, is therefore likely to hold that a court is not precluded from preventing an agency from enforcing a covered rule that was not reported to Congress in compliance with Section 801(a)(1)(A).
7. The Uncertainty of the Breadth of the Prohibition against an Agency's Promulgation of a "Substantially Similar" Rule after the Original Rule has been Vetoed Enactment into law of a disapproval resolution has several important consequences. First, a disapproved rule is deemed not to have had any effect at any time. Thus, even a rule that has become effective for any period of time is retroactively negated.66 Second, a rule that does not take effect, or is not continued because of the passage of a disapproval resolution, cannot be "reissued in the same form" nor can a "new rule" that is "substantially the same" as the disapproved rule be issued unless such action is specifically authorized by a law enacted subsequent to the disapproval of the original rule.67 The full text of this provision states: (2) A rule that does not take effect (or does not continue) under paragraph (1) may not be reissued in substantially the same form, and a new rule that is substantially the same as such a rule may not be issued, unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule.
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Finally, if a rule that is subject to any statutory, regulatory or judicial deadline for its promulgation is not allowed to take effect, or is terminated by the passage of a joint resolution, any deadline is extended for one year after the date of enactment of the disapproval resolution.68 It can be anticipated that opponents of a disapproval resolution will argue that successful passage of a resolution may disable an agency from ever promulgating rules in the "area" covered by the resolution without future legislative reauthorization since a successful disapproval resolution must necessarily bring down the entire rule. Or, at the very least, it may be contended that any future attempt by the agency to promulgate new rules with respect to the subject matter will be subject to judicial challenge by regulated persons who may claim that either the new rules are substantially the same as those disapproved or that the statute provides no meaningful standard to discern whether a new rule is substantially the same and that the agency must await congressional guidance in the form of a statute before it can engage in further rulemaking in the area. The practical effect of these arguments, then, may be to dissuade an agency from taking any action until Congress provides clear authorization. A review of the CRA' s statutory scheme and structure, the contemporaneous congressional explanation of the legislative intent with respect to the provisions in question, the lessons learned from the experience of the March 2001 disapproval of the OSHA ergonomics rule, and the application of pertinent case law and statutory construction principles suggests that (1) It is doubtful that Congress intended that all disapproved rules would require statutory reauthorization before further agency action could take place. For example, it appears that Congress anticipated further rulemaking, without new authorization, where the statute in question established a deadline for promulgating implementing rules in a particular area. In such instances, the CRA extends the deadline for promulgation for one year from the date of disapproval. (2) A close reading of the statute, together with its contemporaneous congressional explication, arguably provides workable standards for agencies to reform disapproved regulations that are likely to be taken into account by reviewing courts. Those standards would require a reviewing court to assess both the nature of the rulemaking authority vested in the agency that promulgated the disapproved rule and the specificity with which the Congress identified the objectionable portions of a rule during the floor debates on disapproval. An important factor in a judicial assessment may be the CRA's recognition of the continued efficacy of statutory deadlines for promulgating specified rules by extending such deadlines for one year after disapproval. (3) The novelty of the issue, the uncertainty of the weight a court will accord the post enactment congressional explanation, and the current judicial inclination to give deference to the "plain meaning" of legislative language, make it difficult to reliably anticipate what a court is likely to hold. A blanket contention that enactment of a joint resolution disapproving an agency's rules would disable that agency from promulgating future rules in the "area" of concern until Congress passes new legislation authorizing it to issue rules on that subject would not appear to have a substantial basis in the CRA. Such argumentation would apparently be based on the notion that the "plain meaning" of the CRA's disapproval mechanism forecloses further rulemaking with respect to that subject matter unless Congress specifically reauthorizes such action in subsequent legislation. That is, since Congress can apparently only disapprove a rule as a whole, rather than pinpointing any particular portions, there is no sound basis for the agency to act without further legislative guidance where a rule deals exclusively with an integrated subject matter. The statute gives no indication as to how an agency is to discern
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what actions would be "substantially the same" and it would run the risk of a successful court challenge if it guessed wrong. It might be further argued that even if the agency promulgates new rules, which of course would be subject to CRA scrutiny, and Congress did not act to disapprove the new rules, that would not provide the necessary reauthorization since Section 801(g) of the act provides as a rule of construction that in the event of the failure of Congress to disapprove a rule "no court ... may infer any intent of Congress from any action or inaction of the Congress with regard to such, related statute, or joint resolution of disapproval." It is, of course, fundamental that statutory language is the starting point in any case of statutory construction. In recent years, the Supreme Court has shown a strong disposition to hold Congress to the letter of the language it uses in its enactments. In its ruling in Barnhart v. Sigmon Coal Co.69 the Court advised that the first step "is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.''70 "The inquiry ceases 'if the statutory language is unambiguous and the statutory scheme is coherent and consistent."71 In such cases, the Court has held, resort to "legislative history is irrelevant to the interpretation of an unambiguous statute."72 In Barnhardt the Court warned, "parties should not seek to amend [a] statute by appeal to the Judicial Branch."73 The plain meaning rule, however, is not an unalterable, rigid rule of construction and has been held inapplicable where it would "lead to an absurd result,"74 or "would bring about an end completely at variance with the purpose of the statute."75 "It is `a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme' ... Thus it is a more faithful construction of [a statute] to read it as a whole, rather than as containing two unrelated parts. It is the classic judicial task of construing related statutory provisions to make sense in combination."76 In the instant situation, it is arguably not likely that a court would hold that the "substantially the same" language of Section 801(b)(2) is unambiguous, either on its face or in the context of the statutory scheme. The direction of the provision is not a self-enforcing mandate; it clearly requires a further determination whether rules have been reissued in "substantially the same form" or whether a new rule is "substantially the same" as the one disapproved. The ambiguity raised is who makes those determinations and on what basis. The language of the provision, however, does not naturally or ineluctably lead to the conclusion that no further remedial rulemaking can take place unless Congress passes a new law. This reasoning is buttressed by Section 803(a) which contemplates that agency rulemaking must take place after a disapproval action if the authorizing legislation of the agency mandates that rules disapproved had to have been promulgated by a date certain. That provision extends the deadline for promulgation for one year "after the date of enactment of the joint resolution," not one year after Congress reauthorizes action in the area. The reasonable conclusion is that Congress understood that after disapproval, an agency, if it was under a mandate to produce a particular rule, had to try again. The question then is, how was it to perform this task. The answer lies in the legislative history of the act. The Congressional Review Act was part of Title II of the Small Business Regulatory Enforcement Fairness Act of 1996. That Title was a product of negotiation between the Senate and House and did not go through the committee process. Thus there is no detailed expression of its legislative history, apart from floor statements by key House and Senate sponsors, before its passage by the Congress on March 28, 1996 and its signing into law by the President on March 29. Thereafter, the principal sponsors of the legislation in the Senate (Senators Nickles, Reid and Stevens) and House (Representative Hyde) submitted identical
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joint explanatory statements for publication in the Congressional Record "intended to provide guidance to the agencies, the courts, and other interested parties when interpreting the act's terms."77 Although it is a post-enactment explanation of the legislation, it is likely to be accorded some weight as a contemporaneous, detailed, in-depth statement of purpose and intent by the principal sponsors of the law.78 The Joint Explanatory Statement directly addresses a number of issues that may arise upon enactment of a disapproval resolution and attempts to provide guidance for both Congress and agencies faced with repromulgation questions. At the outset, the Statement notes that disapprovals may have differing impacts on promulgating agencies depending on the nature and scope the rulemaking authority that was utilized. For example, if an agency's authorizing legislation did not mandate the promulgation of the disapproved rule, and the legislation gives the agency broad discretion, the authors deem it likely that it has the discretion whether or not to promulgate a new rule. On the other hand, the Statement explains that "if an agency is mandated to promulgate a particular rule and its discretion is narrowly circumscribed, the enactment of a resolution of disapproval for that rule may work to prohibit the reissuance of any rule."79 By implication, a congressional mandate to issue regulations that is not circumscribed would still be operative. But how would the agency be guided in that circumstance? The Statement addresses that very question: it is the obligation of Congress during the debate on the disapproval resolution "to focus on the law that authorized the rule and make the congressional intent clear regarding the agency's options or lack thereof after the enactment of a joint resolution of disapproval."80 Thereafter, "the agency must give effect to the resolution of disapproval."81 The full statement on the issue is as follows: Effect of enactment of a joint resolution of disapproval Subsection 801(b)(1) provides that "A rule shall not take effect (or continue), if the Congress enacts a joint resolution of disapproval, described under section 802, of the rule." Subsection 801(b)(2) provides that such a disapproval rule "may not be reissued in substantially the same form, and a new rule that is substantially the same as such a rule may not be issued, unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule." Subsection 801(b)(2) is necessary to prevent circumvention of a resolution disapproval. Nevertheless, it may have a different impact on the issuing agencies depending on the nature of the underlying law that authorized the rule. If the law that authorized the disapproved rule provides broad discretion to the issuing agency regarding the substance of such rule, the agency may exercise its broad discretion to issue a substantially different rule. If the law that authorized the disapproved rule did not mandate the promulgation of any rule, the issuing agency may exercise its discretion not to issue any new rule. Depending on the law that authorized the rule, an issuing agency may have both options. But if an agency is mandated to promulgate a particular rule and its discretion in issuing the rule is narrowly circumscribed, the enactment of a resolution of disapproval for that rule may work to prohibit the reissuance of any rule. The authors intend the debate on any resolution of disapproval to focus on the law that authorized the rule and make the congressional intent clear regarding the agency's options or lack thereof after enactment of a joint resolution of disapproval. It will be the agency's responsibility in the first instance when promulgating the rule to determine the range of discretion afforded under the original law and whether the law authorizes the agency to issue a substantially different rule. Then, the agency must give effect to the resolution of disapproval.
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The congressional experience with the disapproval of the OSHA ergonomics standard provides a useful lesson.82 This rule became the first, and only, rule to be disapproved thus far under the CRA. The principal sponsor of the resolution, Senator Jeffords, at the outset of the debate addressed the issue whether disapproval would disable OSHA from promulgating a new rule. Senator Jeffords referred to the above- discussed Joint Statement and noted that OSHA "has enormously broad regulatory authority," citing pertinent sections of the OSH Act providing expansive rulemaking authority. The Senator concluded that "I am convinced that the CRA will not act as an impediment to OSHA should the agency decide to engage in ergonomics rulemaking."83 What Senator Jeffords apparently understood was that while the agency had broad authority to promulgate rules, there was no congressional mandate to issue an ergonomics rule in the underlying law. As a consequence it was possible that no further rulemaking would occur, as implied by a letter to Senator Jeffords from Secretary Chao which indicated that a new rulemaking was only one of many options available to the Department should the rule be disapproved.84 In fact, OSHA made it clear on April 5, 2002, that no rulemaking was in the offing.85 On April 17, 2002, Senator Breaux and 26 cosponsors, many of whom had voted in favor of the disapproval resolution, introduced S. 2184, which would direct the Secretary of Labor to promulgate a new ergonomics rule and specifies in detail what should be included, what should not be included, and what evidence should be considered. Section 1 (b)(4) of the bill deems the direction to issue the rule "a specific authorization by Congress in accordance with Section 801 (b)(2)" of the CRA.86 An interesting contrast with the ergonomics situation was the consideration given by the key Senate sponsors of the Bipartisan Campaign Reform Act 2002 (BCRA),87 which requires that the Federal Election Commission (FEC) promulgate rules implementing the soft money limitations and prohibitions of Title I of the act no later than 90 days after its date of enactment,88 whether to introduce a CRA disapproval resolution with respect to the rules issued by the FEC on July 17, 2002.89 The Senate sponsors believed that the new rules, which became effective on November 6, 2002, undermine the BCRA' s ban on the raising and spending of soft money by federal candidates and officeholders and on national party use of soft money. Since the FEC was mandated to promulgate rules to implement the BCRA by a date certain, it could have been argued that, in contrast with the general discretion OSHA has with respect to whether to issue any ergonomics standard, if Congress disapproved the FEC' s soft money rule, the agency would be obligated to undertake a new rulemaking (to be completed within a year after the disapproval resolution was signed into law) that would reflect congressional objections to the rule. At the same time, in accordance with the understanding of the Joint Statement, it would have been arguably incumbent on Congress in its debates on any such resolution to clearly identify those provisions of the rule that are objectionable as well as those that are not. Whether this line of argument will be sufficient to withstand a challenge in the courts cannot be answered with any degree of certainty. Foreseeable obstacles may be the novelty of the issue, the amount of weight, if any, that a court will accord the post-enactment congressional explanation of the CRA, and the current inclination of the courts to give deference to the plain meaning of statutory language and to eschew legislative history. A new rule may be challenged on grounds of lack of authority as a consequence of the disapproval resolution either because Congress failed to articulate its objections to the rule, thereby providing no standards for the agency to apply in its rulemaking, or that the new rules were "substantially the same" as the old, disapproved rules and therefore invalid under the CRA.
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In the future, if Congress, considers a disapproval resolution, it should be mindful of the guidance provided by the Joint Statement. The Joint Statement declares that it is the congressional intent to make clear and specific identification of the options available to the agency, including identification of objectionable provisions in the proposed rule during the floor debates. In this way Congress provides an agency clear and direct guidance as to what it expects in the repromulgation process as well as a possible defense to a challenge based on the "substantially the same" language of the CRA.
CONCLUSION This chapter identifies structural and interpretive issues affecting use of the CRA. While there have been some instances of the law apparently influencing the implementation of certain rules, the limited utilization of the formal disapproval process in the ten years since enactment has arguably reduced the threat of possible congressional scrutiny and disapproval as a factor in agency rule development. The one instance in which an agency rule was successfully negated is likely a singular event not soon to be repeated. Presently, the Congress and the White House are in the hands of the same political party, the rules of the previous administration are no longer subject to the CRA, and the current administration appears to be establishing firm control of the agency rulemaking process through its administration of Executive Order 12,866.90 One commentator has observed that if the perception of a rulemaking agency is that the possibility of congressional review is remote "it will discount the likelihood of congressional intervention because of the uncertainty about where Congress might stand on that rule when it is promulgated years down the road," an attitude that is reinforced "so long as [the agency] believes that the president will support its rule."91 Indeed, there is growing evidence that a significant number of covered rules are not being submitted for review at all. Also, a potentially effective support mechanism, the in-depth, individualized scrutiny of selected agency cost-benefit and risk assessment analyses by GAO authorized under the Truth in Regulating Act of 2000, was never implemented for lack of appropriated funds. The CRA reflects a recognition of the need to restore the political accountability of Congress and the perception of legitimacy and competence of the administrative rulemaking process. It also rests on the understanding that broad delegations of rulemaking authority to agencies are necessary and appropriate, and will continue for the indefinite future. The Supreme Court's most recent rejection of an attempted revival of the nondelegation doctrine92 adds impetus for Congress to consider several facets and ambiguities of the current mechanism. Absent review, current trends of avoidance of notice and comment rulemaking, lack of full reporting of covered rules under the CRA, intrusive judicial review, and increasing presidential control over the rulemaking process will likely continue.
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SELECTED SOURCE READINGS Cohen, Daniel and Strauss, Peter L. "Congressional Review of Agency Regulations." Administrative Law Review 49 (Winter 1996): 95-110. Parks, Julia A. "Lessons in Politics: Initial Use of the Congressional Review Act." Administrative Law Review 55 (Fall 2003): 187-210. Pfohl, Peter A. "Congressional Review of Agency Rulemaking• The 104th Congress and the Salvage Timber Directive." 14 Journal of Law and Politics (Winter 1998): 1-31. Rosenberg, Morton. "Whatever Happened to Congressional Review of Agency Rulemaking9. A Brief Overview, Assessment, and Proposal for Reform." 51 Administrative Law Review (Fall 1999): 1051-1092
ENDNOTES 1
Section 804(3) excludes from the definition "(A) any rule of particular applicability, including a rule that approves or prescribes for the future rates, wages, prices, services, or allowance therefore, corporate or financial structures, reorganizations, mergers, or acquisitions thereof, or accounting practices or disclosures bearing on any of the foregoing; (B) any rule relating to agency management or personnel; or (C) any rule of agency organization, or practice that does not substantially affect the rights or obligations on non- agency parties." 2 Attorney General's Manual on the Administrative Procedure Act 13 (1948). 3 Avoyelles Sportmsmen's League, Inc., v. Marsh, 715 F.2d 897 (5th Cir. 1983). 4 See, e.g., Chem Service, Inc. v. EPA, 12 F.3d 1256 (3d Cir. 1993)(memorandum of understanding); Caudill v. Blue Cross and Blue Shield of North Carolina, 999 F.2d 74 (4th Cir. 1993)(interpretative rules); National Treasury Employees Union v. Reagan, 685 F.Supp 1346 (E.D. La 1988)(federal personnel manual letter issued by OPM); New York City Employment Retirement Board v. SEC, 45 F.3d 7 (2d Cir. 1995)(affirming lower court's ruling that SEC "no action" letter was a rule within section 551(4)). 5 The General Counsel of the Government Accountability Office (GAO) has ruled that the 60day period does not begin to run until both Houses of Congress receive the required report. See B-289880, April 5, 2002, opinion letter to Hon. Edward M. Kennedy, Chairman, Senate Committee on Health, Education, Labor and Pensions from Anthony H. Gamboa, General Counsel. The situation involved a Department of Health and Human Service's (HHS) major rule published in the Federal Register on January 18, 2002 with an announced effective date of March 29, 2002. The House of Representatives, however, did not receive the rule until February 14, 2002. HHS thereafter delayed the effective date of the rule until April 15, 2002, in an attempt to comply with the CRA. But the Senate did not receive the rule until March 15, 2002. The General Counsel determined that the rule could not become effective until May 14, 2002, 60 days following the Senate's receipt, relying on the language of Section 801(a)(1)(A) of the act requiring that a copy of a covered rule must be be submitted "to each House of Congress" in order to become effective.
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Reviewing courts have generally applied the Administrative Procedure Act's good cause exemption, from which this language is obviously taken, narrowly in order to prevent agencies from using it as an escape clause from notice and comment requirements. See, e.g., Action on Smoking and Health v. CAS, 713 F.2d 795, 800 (D.C. Cir. 1987). However, since Section 805 precludes judicial review for any "determination, finding, action or omission under this chapter", there could be no court condemnation of a good cause determination. But the rule would still be subject to congressional vacation and retroactive nullification. 7 In Leisegang v. Sect'y of Veterans Affairs, 312 F.3d 1368, 1373-1376 (Fed. Cir. 2002), the appeals court held that Section 801(a)(3) "does not change the date on which [a major rule] becomes effective. It only affects the date when the rule becomes operative. In other words, the CRA merely provides a 60-day waiting period before the agency may enforce the major rule so that Congress has the opportunity to review the regulation." At issue in the case was the date from which certain veterans benefits would be calculated. The benefit statute provided that it would be the date of the issuance of the rule. The government argued that the CRA was a superceding statute and that the effective date was when the CRA allowed it to be operative. The appeals court agreed with the veterans that the date of issuance, as prescribed by the law, was determinative. 8 For an in-depth discussion of procedural issues that may arise during House and Senate consideration of disapproval resolutions, see Richard S. Beth, CRS Report RL31160, Disapproval of Regulations by Congress: Procedure Under the Congressional Review Act, October10, 2001 (CRA Procedure). 9 There is some question whether a motion to proceed is nondebatable because of the absence of language so stating. Arguably, the nondebatability of the motion is integral both to the scheme of the expedited procedure provisions as well as to the overall efficacy of the CRA' s statutory scheme and thus may be implied. Alternatively, debate on such a motion may be limited by Section 803(d)(2) which limits debate on joint resolutions, as well as "all debatable motions," to 10 hours. Ultimately, a resolution of this question by the Senate Parliamentarian, or the Senate itself, may be necessary. However, at the commencement of the debate on S.J.Res. 6, to disapprove the ergonomics rule, the presiding officer declared that "The motion to proceed is not debatable. The question is on agreeing to the motion." The motion was agreed to. 147 Cong. Rec. S 1831 (daily ed. March 6, 2001). At least one other precedent exists in which it was ruled that a motion to proceed to a budget resolution under the Budget Act was nondebatable despite the silence of the act on the matter. See, 127 Cong. Rec. S 4871 (May 12, 1981). 10 See discussion infra at pp 24-29.. 11 General Accounting Office, Reports on Federal Agency Major Rules, which may be found at [http://www.gao.govidecisionsimaj rule/maj rule.htm] 12 The turbulent history of the development of the ergonomics standard is recounted in CRS Report 97-724, Ergonomics in the Workplace: Is It Time for an OSHA Standard? 13 In a close floor vote, the rider proposed for FY1997 was deleted. 14 65 Fed. Reg. 68261 (2000). 15 P.L. 107-5. 16 P.L. 105-78. 17 See Allan Freedman, "GOP' s Secret Weapon Against Regulations: Finesse," CQ Weekly, September 5, 1998, at 2318-19 (Freedman).
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Freedman, supra note 17, at 2319-20. See 142 Cong. Rec. S 10723 (daily ed. Sept. 17, 1996). 20 29 Weekly Comp. Pres. Doc. 88 (1993). 21 22 U.S.C. 215 lb(b) and b(f)(1) (2000). 22 37 Weekly Comp. Pres. Doc. 216 (2001). 23 Compare Franklin v. Massachusetts, 505 U.S. 788, 800 (1992) and Dalton v. Specter, 511 U.S. 462, 469 (1994), holding that the President is not subject to APA procedures since he is not expressly covered by its definition of agency, with Chamber of Commerce v. Reich, 74 F.3d 1311 (D.C. Cir. 1998) and National Family Planning Council v. Sullivan, 979 F.2d 227 (D.C. Cir. 1992), allowing challenges to agency rules that were issued pursuant to presidential directive. 24 See, Restoration of the Mexico City Policy: Memorandum for the Administrator of the U.S. Agency for International Development, March 28, 2001, 66 Fed. Reg. 17303-17313 (March 29, 2001). 25 A companion bill, S. 1675, was introduced in the Senate by Senators Shelby and Bond. 143 Cong. Rec. S 1007 (daily ed. Feb. 25, 1998). 26 See H.Rept. 105-441, Parts 1 and 2 (105th Cong., 2d Sess.) (1998). 27 Section 4 (a)(3)(A). 28 P.L. 106-312, 114 Stat. 1248-50, 5 U.S.C. 801 note. 29 See introductory remarks on the measure at 147 Cong. Rec. H 2454 (daily ed. Oct. 21, 2003) 30 The experience with respect to the repeal of the ergonomics standard, discussed supra at 12-13, would appear to bear this out. 31 See, Mark Seidenfeld, The Psychology of Accountability and Political Review of Agency Rules, 51 Duke L.J. 1059, 1089 (2001) ("The paucity of motions for disapproval resolutions indicates that agencies are not apt to focus on fast-track review as a check on their rulemaking discretion at least until late in the rulemaking process. Agencies might be likely to focus on such review when they adopt rules that they know will be unpopular in Congress, but even then they need not fear the ramifications of fast-track review unless they also believe that the president opposes the rule or is willing to compromise it to win other political battles. Fast-track review may have greater significance for midnight rules that are subject to review when a different president is in office.")(Seidenfeld). 32 S.J.Res. 17, dealing with the FCC's media ownership rule, which passed in the Senate but was not acted upon in the House. 33 See e.g., Reorganization Act Amendments of 1984, providing that both Houses of Congress had to pass a joint resolution approving a reorganization plan within 90 days of continuous session after the date of presidential submission or else it is deemed disapproved. 5 U.S.C. 906 (a) (1994). 34 Two bills introduced in the 106th Congress to revise the CRA utilized the joint resolution of approval approach. See S. 1348, 106th Cong., 1St Sess. (1999)(Sen. Brownback) S. 2670, 106th Cong., 2nd Sess. (2000)(Sen. Thomas). A similar approach is reflected in H.R. 110 introduced by Rep. Hayworth (with 25 co-sponsors) in the 108th Congress. All agency rules must be reported to Congress and may become effective only on passage, by means of a fast- track procedure applicable to both Houses, of an approval law, which is not subject to judicial review. 19
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S.J.Res. 50 and H.J.Res. 123, "relating to surety bond requirements for home health agencies under the medicare and medicaid programs... ." 36 Joint Explanatory Statement of House and Senate Sponsors, 142 Cong. Rec. E 571, at E 577 (daily ed. April 19, 1996); 142 Cong. Rec. S 3683, at S 3686 (daily ed. April 18, 1996)(Legislative History)(emphasis added). These identical detailed explanations by the legislative sponsors of the intent and scope of the CRA' s provisions appeared in the daily editions of the Congressional Record some three weeks after SBREFA was signed into law. In the absence of committee hearings and the sparse commentary during floor debate, these explanations represent the most authoritative contemporary understanding of the provisions of the law. It is, however, post-enactment legislative history and does not carry the weight that committee report explanations and floor debates provide. As one court dealing with the interpretation of a CRA provision stated, the post-enactment legislative history "buttresses the 'limited scope' of the CRA judicial review provision" but warned that "the lack of formal legislative history for the CRA makes reliance on this joint statement troublesome." See United States v. Southern Indiana Gas & Electric Co, discussed infra at note 54 and accompanying text. It has recently come to our attention that the permanent edition of the Congressional Record for the 104th Congress places the Senate sponsors Joint Explanation at April 18, 1996, the same date it appeared in daily edition. See 142 Cong. Rec. 8196- 8201. The House sponsors' Joint Explanation, which originally appeared in the daily edition of April 19, 1996, is now placed during the floor debate on SBREFA on March 28, 1996, the date of its passage. See 142 Cong. Rec. 6922-6930. There is no explanation for the earlier placement. As a consequence, we have determined to continue to treat the Joint Explanation as post-enactment legislative history that arguably merits close consideration by a reviewing court as a contemporaneous, detailed, in-depth statement of purpose and intent by the principal sponsors of the law. See discussion, infra, at pp. 27-33. 37 Defense Base Closure and Realignment Act of 1990, P.L. 101-510, sec. 2908 (b) 104 Stat. 1808, in note following 10 U.S.C. 2687 (2000). 38 See, 19 U.S.C. 2191-2193 (2000). 39 See, e.g., Reorganization Act of 1984, 5 U.S.C. 909-912 (2000). 40 See footnotes 1-4, supra, and accompanying text. 41 Legislative History, supra n. 36, at E 579, S 3687. 42 This practice has been long recognized and criticized in administrative law commentaries. See, e.g., Robert A. Anthony, Interpretive Rules, Policy Statements, Guidances, Manuals, and the Like — Should Federal Agencies Use Them To Bind The Public?, 41 Duke L.J. 1311 (1992). Cf. also, General Accounting Office, Federal Rulemaking: Agencies Often Published Final Actions Without Proposed Rules, GAO/GGD-98-126 (August 1998). 43 Legislative History, supra n. 36, at E 578, S 3687. 44 Anindication of the vast number of unreported covered rules came as a result of an investigation by the House Subcommittee on National Economic Growth, Natural Resources, and Regulatory Affairs (Government Reform) which revealed that 7,523 guidance documents issued by the Department of Labor, the Environmental Protection Agency, and the Department of Transportation which were of general applicability and future effect had not been submitted for CRA review during the period March 1996 through November 1999. See "Non-Binding Legal Effect of Agency Guidance
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Documents," [http://www.congress.govicgi-lisicpquery/T?&report=hr1009&dbname =cp1068] H.Rept. 106-1009, 106th Cong., 2nd Sess. (2000). 45 P.L. 105-277, Division A, title III. 46 See [http://www.congress .govicgi-lisicpquery/T?&report=hr1009&dbname=cp1068] H.Rept. 106-1009, supra n. 44 at 4-5. 47 See letter dated June 11, 1997 to the Honorable Lamar Smith, Chairman, Subcommittee on Immigration and Claims, Senate Judiciary Committee, from Andrew Fois, Assistant Attorney General, Office of Legislative Affairs, DOJ, and accompanying analysis dated June 10, 1997, at pp 9-11 (DOJ Memorandum). 48 1998 U.S. Dist. LEXIS 13470, 1998 WL842 181 (W. Texas), aff d 201 F.3d 551 (5th Cir. 2000). 49 Id. at note 15. 50 218 F.Supp. 3d 931 (S.D. Ohio 2002). 51 For background on the legal development of the issue, see CRS Report RS21424, Air Pollution: Legal Perspective on the 'Routine Maintenance' Exception to New Source Review, by Robert Meltz. 52 218 F.Supp. 2d at 949. 53 Id. 54 2002 U.S. Dist. LEXIS 20936; 55 ERC (BNA) 1597 (D.C. S.D. Ind. 2002). 55 2002 U.S. Dist. LEXIS 20936 at 13-14. 56 Id. at 15-16 and note 3. 57 This legislation establishes a government-wide congressional review mechanism for most new rules. This allows Congress the opportunity to review a rule before it takes effect and to disapprove any rule to which Congress objects." Legislative History, supra note 36, at E 575 and S 3683. 58 The disapproval of the ergonomics rule underlines a possible need for judicial review in certain instances where enforcement is necessary and appropriate to support the statutory scheme. That rule, which was broad and encompassing in its regulatory scope, raises the question as to how far can the agency go before it reaches the point of substantial similarity in its promulgation of a substitute. This issue is addressed in the next section. 59 142 Cong. Rec. H3005 (daily ed. March 28, 1996). 60 Legislative History, supra note 36, at 142 Cong. Rec. S 3683. 61 Id., at E 577 and S 3686. 62 See DOJ memorandum, supra n. 47, at 10 n.14. 63 44 U.S.C. 3507(d)(6)(2000). 64 See 44 U.S.C. 3512 (1994). 65 Compare United States v. Smith, 866 F.2d 1092 (9th Cir. 1980)(failure of Forest Service to file a plan of operations with OMB control number precluded conviction for failure to file) and Cameron v. IRS, 593 F.Supp. 1540, aff'd 773 F.2d 126 (6th Cir. 1984)(failure of IRS forms to have OMB control numbers did not violate section since it was a collection of information during the investigation of a specific individual or entity which is exempt under the provision). 66 5 U.S.C. 801(f). 67 5 U.S.C. 801(b)(2). 68 5 U.S.C. 803. 69 534 U.S. 438 (2002).
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Id. at 450. Id. 72 Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 808-09 n.3. Accord Connecticut National Bank v. Germain, 503 U.S. 249, 253-54 (1992); United States v.Daas, 198 F.2d 1167, 1175 (9th Cir. 1999), cert. denied 531 U.S. 999 (2000). 73 534 U.S. at 462.. 74 Holy Trinity Church v. United States, 143 U.S. 457, 459 (1892). 75 United Steelworkers v. Weber, 443 U.S. 193, 201 (1978). 76 United States v. Wilson, 290 F.3d 347 (D.C. Cir. 2002) (holding, inter alia, that it is appropriate for a court to look at the history and background against which Congress was legislating). 77 Legislative History, supra, n. 36. 78 See e.g., North Haven Bd. of Education v. Bell, 456 U.S. 512, 530-31(1982); Pacific Gas & Electric Co. v. Energy Resources Conservation & Development Commission, 461 U.S. 190, 220 n.23 (1983); Grove City College v. Bell, 465 U.S. 555, 567 (1984). 79 Legislative History supra note 36 at S 3686. 80 Id. 81 Id. 82 See CRS Ergonomics Report, supra note 12. 83 147 Cong. Rec. S 1832-33 (daily ed. March 6, 2001) (emphasis added). 84 147 Cong. Rec. at S 1832. 85 CRS Ergonomics Report, supra note 12. 86 Id. 87 P.L. 107-55, 116 Stat. 81 (March 27, 2002). 88 Section 402 (c)(2). 89 Kenneth P. Doyle, Wertheimer, Bauer Debate Move to Void Soft Money Rule Before Senate Democrats, Bureau of National Affairs, July 19, 2002. A disapproval resolution of the FEC rules was introduced in the Senate, S.J.Res. 48, on October 8, 2002, but was never acted upon by either House. 90 See, e.g., Rebecca Adams, Graham Leaves OlRA With a Full Job Jar, CQ Week, Jan. 23, 2006; U.S. GAO. Rulemaking OMB's Role in Reviews of Agencies' Draft Rules anf the Transparency of Those Reviews, GAO-03-929 (September 2003; Stephen Power and Jacob M. Schlesinger, Redrawing the Lines: Bush's Rule Czar Brings Long Knife to New Regulations, Wall St. Journal, 6/12/02 at Al; Rebecca Adams, Regulating the Rulemakers: John Graham at OlRA, CQ Weekly, 2/23/02 at 520-526. 91 Seidenfeld, supra note 31, at 1090. 92 Whitman v. American Trucking Assn's, 531 U.S. 457 (2001). 71
In: Congress of the U.S: Commitees, Rules and Procedures ISBN 978-1-60456-416-7 Editor: Sela G. Thomason © 2009 Nova Science Publishers, Inc.
Chapter 3
FEDERALISM, STATE SOVEREIGNTY, AND THE CONSTITUTION: BASIS AND LIMITS OF CONGRESSIONAL POWER* Kenneth R. Thomas SUMMARY The ratification of the U.S. Constitution, to a significant extent, defined the lines of authority between the state and federal governments. In recent years, the Supreme Court has decided a number of cases that address this historical relationship. This chapter discusses state and federal legislative power generally and focuses on a number of these "federalism" cases. The chapter does not, however, address the much larger policy issue of when it is appropriate — as opposed to constitutionally permissible — for federal powers to be exercised. The U.S. Constitution provides that Congress shall have the power to regulate commerce with foreign nations and among the various states. This power has been cited as the constitutional basis for a significant portion of the laws passed by the Congress over the last 50 years, and it currently represents one of the broadest bases for the exercise of congressional powers. In United States v. Lopez and subsequent cases, however, the Supreme Court did bring into question the extent to which Congress can rely on the Commerce Clause as a basis for federal jurisdiction. Another significant source of congressional power is based on the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Section 5 of that amendment provides that Congress has the power to legislate regarding its provisions. In the case of Flores v. City of Boerne, however, the Court imposed limits on this power, requiring that there must be a "congruence and proportionality" between the injury to be remedied and the law adopted to that end.
*
This is an edited, excerpted and augmented edition of a CRS Report for Congress publication, Order Code RL30315, dated January 24, 2007.
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The Tenth Amendment provides that "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." While this language would appear to represent one of the most clear examples of a federalist principle in the Constitution, it has not had a significant impact in limiting federal powers. However, in New York v. United States and Printz v. United States, the Court did find that, under the Tenth Amendment, Congress cannot "commandeer" either the legislative process of a state or the services of state executive branch officials. The Eleventh Amendment provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State." The actual text of the amendment appears to be limited to preventing citizens from bringing diversity cases against states in federal courts. However, the Supreme Court has expanded the concept of state sovereign immunity to reach further than the text of the amendment, prohibiting citizens generally from bringing suits against states in federal court. There are exceptions to this limitation, however, and Congress also has a limited ability to abrogate such state immunity
INTRODUCTION The ratification of the U.S. Constitution, to a significant extent, defined the lines of authority between the state and federal governments. In recent years, the Supreme Court has decided a number of cases that address this historical relationship between the federal government and the states. This chapter discusses state and federal legislative power generally, and focuses on a number of these "federalism" cases.1 Issues addressed include congressional power under the Commerce Clause and the Fourteenth Amendment; limits on congressional powers, such as the Tenth Amendment; and state sovereign immunity under the Eleventh Amendment. The chapter does not, however, address the much larger federalism issue of when it is appropriate — as opposed to constitutionally permissible — for federal powers to be exercised.
POWERS OF THE STATES States may generally legislate on all matters within their territorial jurisdiction. This "police power" does not arise from the Constitution, but is an inherent attribute of the states' territorial sovereignty. The Constitution does, however, provide certain specific limitations on that power. For instance, a state is relatively limited in its authority regarding the regulation of foreign imports and exports2 or the conduct of foreign affairs.3 Further, states must respect the decisions of courts of other states,4 and are limited in their ability to vary their territory without congressional permission.5 In addition, the Supreme Court has found that states are limited in their ability to burden interstate commerce.6
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POWERS OF THE FEDERAL GOVERNMENT The powers of the federal government, while limited to those enumerated in the Constitution,7 have been interpreted broadly, so as to create a large potential overlap with state authority. For instance, Article I, § 8, cl. 18 provides that "[t]he Congress will have power ... To make all laws which will be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." Early in the history of the Constitution, the Supreme Court found that this clause enlarges rather than narrows the powers of Congress.8 Congress has broad financial powers, including the power to tax and spend in order to pay debts and provide for the common defense and general welfare of the United States.9 Congress also has the power to borrow money and to appropriate money from the United States Treasury.10 The purposes for which Congress may tax and spend are very broad and are not limited by the scope of other enumerated powers under which Congress may regulate.11 On the other hand, Congress has no power to regulate "for the general welfare,” but may only tax and spend for that purpose. Congress also has broad authority over the commercial interests of the nation, including the power to regulate commerce,12 to establish bankruptcy laws,13 to coin money,14 to punish counterfeiters,15 to establish post offices and post roads,16 and to grant patents and copyrights.17 The Commerce Clause, discussed in more detail below, is one of the most farreaching grants of power to Congress. Regulation of interstate commerce covers all movement of people and things across state lines, including communication and transportation. Congress has broad powers over citizenship, including the power to define the circumstances under which immigrants may become citizens,18 and to protect the rights of those persons who have citizenship. The Fourteenth Amendment gives Congress the power to enforce the guarantees of the Fourteenth Amendment, including the right to due process and equal protection.19 This power extends specifically to the power of Congress to protect the rights of citizens who are at least 1820 to vote regardless of race, color, previous condition of servitude,21 or sex.22 Congress may also regulate the time, place, and manner of federal elections,23 and judge the result of such elections.24 Congress also has a number of other powers relating to elections and appointments.25 Congress has the power and authority to purchase and administer property, and has power over those jurisdictions that are not controlled by states, such as the District of Columbia and the territories.26 Congress is limited by the Fifth Amendment, however, in the taking of private property without compensation.27 Congress has numerous powers related to war and the protection of the United States and its sovereign interests.28
THE COMMERCE CLAUSE As noted above, the U.S. Constitution provides that Congress shall have the power to regulate commerce with foreign nations and among the various states.29 This power has been cited as the constitutional basis for a significant portion of the laws passed by the Congress
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over the last 50 years, and it currently represents one of the broadest bases for the exercise of congressional powers. In United States v. Lopez,30 however, the Supreme Court brought into question the extent to which the Congress can rely on the Commerce Clause as a basis for federal jurisdiction. Under the Gun-Free School Zones Act of 1990, Congress made it a federal offense for "any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone."31 In Lopez, the Court held that, because the Act neither regulated a commercial activity nor contained a requirement that the possession was connected to interstate commerce, the Act exceeded the authority of the Congress under the Commerce Clause. Although the Court did not explicitly overrule any previous rulings upholding federal statutes passed under the authority of the Commerce Clause, the decision would appear to suggest new limits to Congress's legislative authority. The scope and extent of the Commerce Clause does not appear to have been of particular concern to the framers of the Constitution.32 There are indications that the founding fathers considered the federal regulation of commerce to be an important power of the new Constitution primarily as a means of facilitating trade and of raising revenue.33 While the Anti-Federalists argued that the new Constitution gave too much power to the federal government, they apparently did not raise significant objections to the granting of power to regulate interstate commerce.34 The Supreme Court, however, developed an expansive view of the Commerce Clause relatively early in the history of judicial review. For instance, Chief Justice Marshall wrote in 1824 that "the power over commerce ... is vested in Congress as absolutely as it would be in a single government ..." and that "the influence which their constituents possess at elections, are ... the sole restraints" on this power.35 However, the issue in most of the early Supreme Court Commerce Clause cases dealt not with the limits of Congressional authority, but on the implied limitation of the Commerce Clause on a state's ability to regulate commerce.36 It has been suggested that the Commerce Clause should be restricted to the regulation of "selling, buying, bartering and transporting."37 In fact, much of the federal legislation approved of by the Supreme Court early in this century did relate to issues such as the regulation of lottery tickets,38 the transporting of adulterated food,39 and the interstate transportation of prostitutes.40 Moreover, during the early 1900s, the Supreme Court struck down a series of federal statutes that attempted to extend commerce regulation to activities such as "production," "manufacturing,"41 and "mining."42 Starting in 1937, however, with the decision in NLRB v. Jones & Laughlin Steel Corporation,43 the Supreme Court held that Congress has the ability to protect interstate commerce from burdens and obstructions that "affect" commerce transactions. In the NLRB case, the court upheld the National Labor Relations Act, finding that by controlling industrial labor strife, Congress was preventing burdens from being placed on interstate commerce.44 Thus, the Court rejected previous distinctions between the economic activities (such as manufacturing) that led up to interstate economic transactions, and the interstate transactions themselves. By allowing Congress to regulate activities that were in the "stream" of commerce, the Court also set the stage for the regulation of a variety of other activities that "affect" commerce. Subsequent Court decisions found that Congress had considerable discretion in determining which activities "affect" interstate commerce, as long as the legislation was "reasonably" related to achieving its goals of regulating interstate commerce.45 Thus the
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Court found that in some cases, events of purely local commerce (such as local working conditions) might, because of market forces, negatively affect the regulation of interstate commerce, and thus would be susceptible to regulation.46 The Court has also held that an activity which in itself does not affect interstate commerce could be regulated if all such activities taken in the aggregate did affect interstate commerce.47 Under the reasoning of these cases, the Court has upheld many diverse laws, including laws regulating production of wheat on farms,48 racial discrimination by businesses,49 and loan-sharking.50 The Lopez case was significant in that it is the first time since 1937 that the Supreme Court struck down a federal statute purely based on a finding that Congress had exceeded it powers under the Commerce Clause.51 In doing so, the Court revisited its prior cases, sorted the commerce power into three categories, and asserted that Congress could not go beyond these three categories: (1) regulation of channels of commerce, (2) regulation of instrumentalities of commerce, and (3) regulation of economic activities that "affect" commerce.52 Within the third category of activities that "affect commerce," the Court determined that the power to regulate commerce applies to intrastate activities only when they "substantially" affect commerce.53 Still, the Court in Lopez spoke approvingly of earlier cases upholding laws that regulated intrastate credit transactions, restaurants utilizing interstate supplies, and hotels catering to interstate guests. The Court also recognized that while some intrastate activities may by themselves have a trivial effect on commerce, regulation of these activities may be constitutional if their regulation is an essential part of a larger economic regulatory scheme. Thus, the Court even approved what has been perceived as one of its most expansive rulings, Wickard v. Filburn, which allowed the regulation of the production and consumption of wheat for home consumption.54 The Court in Lopez found, however, that the Gun-Free School Zones Act fell into none of the three categories set out above. It held that it is not a regulation of channels of commerce, nor does it protect an instrumentality of commerce. Finally, its effect on interstate commerce was found to be too removed to be "substantial." The Court noted that the regulated activity, possessing guns in school, neither by itself nor in the aggregate affected commercial transactions.55 Further, the statute contained no requirement that interstate commerce be affected, such as that the gun had been previously transported in interstate commerce.56 Nor was the criminalization of possession of a gun near a school part of a larger regulatory scheme that did regulate commerce.57 Finally, the Court indicated that criminal law enforcement is an area of law traditionally reserved to the states. 58 Consequently, the Court found that the Congress did not have the authority to pass the Gun-Free School Zone Act. It should be noted that the Lopez Court purported to be limiting, but not overruling, prior case law that had supported an expansive interpretation of the commerce clause. Consequently, most existing federal laws, which have traditionally been drafted to be consistent with this case law,59 would survive constitutional scrutiny even under Lopez. However, in at least one significant case, Congress passed a law, the Violence Against Women Act, that seemed to invoke the same concerns that the Court found in Lopez. Consequently, the relevant portion of that act was struck down in United States v. Morrison.60 In Morrison, the Court evaluated whether 42 U.S.C. § 13981, which provides a federal private right of action for victims of gender-motivated violence, was within the power of Congress to enact under the Commerce Clause. In Morrison, the victim of an alleged rape brought suit against the alleged rapist, arguing that this portion of the Act was sustainable
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because it addressed activities that substantially affect interstate commerce.61 The Court, however, noted that unlike traditional statutes based on the commerce clause, the activity in question had nothing to do with commerce or an economic enterprise. This point had been made previously in Lopez, and here the Court reaffirmed the holding that in order to fall under the acceptable category of laws that "substantially affect commerce," the underlying activity itself must generally be economic or commercial.62 As gender-motivated violence does not inherently relate to an economic activity, the Court held that it was beyond the authority of the Congress to regulate. In the case of Gonzales v. Raich,63 the Court evaluated an "as applied" challenge to the Controlled Substances Act as regards obtaining, manufacturing, or possessing marijuana for medical purposes. The case was brought by two seriously ill residents of California who used marijuana in compliance with the California Compassionate Use Act of 1996.64 The challenge was based on the argument that the narrow class of activity being engaged in — the intrastate, noncommercial cultivation and possession of cannabis for personal medical purposes as recommended by a patient's physician pursuant to valid California state law — did not have a substantial impact on commerce, and thus could not be regulated under the Commerce Clause.65 In upholding the application of the Controlled Substances Act in the Raich case, the Court relied on its decision in Wickard v. Filburn,66 which held that "even if appellee' s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce."67 The Wickard case upheld the application of the Agricultural Adjustment Act of 1938,68 which was designed to control prices by regulating the volume of wheat moving in interstate commerce. The Court in States, 529 U.S. 848 (2000), a criminal defendant challenged his conviction under 18 U.S.C. § 844(i), which, in part, makes it a crime to destroy by fire or explosive a building "used" in interstate commerce. Applying the statutory canon that one should interpret a statute to avoid constitutional doubt, Jones v. United States, 526 U.S. 227, 239 (1999), the Court held that the statute did not apply to a private residence that was "used" as collateral to obtain and secure a loan, "used" to obtain insurance, and "used" to receive natural gas from other sources. The Court construed the statute to require that a building protected by § 844(i) be "actively employed" for commercial purposes, id. at 855, arguing that a broader interpretation would extend the statute to virtually every arson in the country. A similar result occurred in the case of Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001). In SWANCC, the Court considered a challenge to the Migratory Bird Rule, 51 Fed. Reg. 41217, which extended § 404(a) of the Clean Water Act (CWA), 33 U.S.C. § 1344(a) to nonnavigable, isolated wetlands. The Court held that this interpretation of the statute would raise serious constitutional questions, requiring, for instance, a close examination of precisely what activity was being regulated. Absent a clear statement from Congress that it intended the Clean Water Act to have such a broad reach, the Court found the rule was not supported by the statute. Id. at 173. See also Rapanos v. United States Army Corps of Engineers, 165 L. Ed. 2d 159, 201 (2006). Wickard held that the Congress could regulate not only the wheat sold into commerce, but also wheat retained for consumption on a fann.69 The Court did so on the theory that the
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while the impact of wheat consumed on the farm on interstate commerce might be trivial, it was significant when combined with wheat from other farmers similarly situated.70 Based on Wickard, the Court in Raich held that Congress could consider the aggregate effect that allowing the production and consumption of marijuana for medical purposes would have on the illegal market for marijuana.71 Of even greater concern was that diversion of marijuana grown for medicinal purposes for other uses would frustrate the federal interest in eliminating commercial transactions in the interstate market.72 In both cases, the Court found that the regulation was within Congress's commerce power because Congress had a rational basis to determine that production of a commodity meant for home consumption, be it wheat or marijuana, could have a substantial effect on supply and demand. In addition, because exempting the use of medical marijuana could undercut enforcement of the Controlled Substances Act, the Court found that the application in this case was within Congress's authority to "make all Laws which shall be necessary and proper"73 to effectuate its powers.
THE FOURTEENTH AMENDMENT Another significant source of congressional power is § 5 of the Fourteenth Amendment. The Fourteenth Amendment provides that states shall not deprive citizens of "life, liberty or property" without due process of law nor deprive them or equal protection of the laws. Section 5 provides that Congress has the power to legislate to enforce the amendment. The Fourteenth Amendment represented a significant shift of power in the nation's federal system. Until the passage of the Fourteenth Amendment, the Constitution was limited to establishing the powers and limitations of the federal government. However, the amendments passed immediately after the Civil War (the Thirteenth,74 Fourteenth, and Fifteenth75 Amendments), dramatically altered this regime. Passage of these amendments subjected a state's control over its own citizens to oversight by either the federal judiciary or Congress. The most significant impact of the Fourteenth Amendment has been its implementation by the federal courts, as state legislation came under scrutiny for having violated due process or equal protection. However, Congress has also seen fit to exercise its power under the Fourteenth Amendment to address issues such as voting rights and police brutality. The scope of Congress's power under §5 of the Fourteenth Amendment, however, has been in flux over the years. In Katzenbach v. Morgan,76 the Court held that §5 of the Fourteenth Amendment authorized Congress not just to enforce the provisions of the Fourteenth Amendment as defined by the courts, but to help define its scope. In Katzenbach, the Court upheld a portion of the Voting Rights Act of 1965 that barred the application of English literacy requirements to persons who had reached 6th grade in a Puerto Rican school taught in Spanish. In upholding the statute, the Court rejected the argument that Congress's power to legislate under the Fourteenth Amendment was limited to enforcing that which the Supreme Court found to be a violation of that amendment. Rather, the Court held that Congress could enforce the Fourteenth Amendment by "appropriate" legislation consistent with the "letter and spirit of the constitution." The rationale for this holding appears to be that Congress has the ability to evaluate and address factual situations that it determines may lead to degradation of rights protected under
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the Fourteenth Amendment. This is true even if a court would not find a constitutional violation to have occurred. In fact, what the Court appeared to have done was to require only that Congress establish a rational basis for why the legislation was necessary to protect a Fourteenth Amendment right. Subsequent Supreme Court cases, however, have limited the reach of Katzenbach. In Oregon v. Mitchell,77 the Court struck down a requirement that the voting age be lowered to 18 for state elections. In prohibiting Congress from dictating the voting age for state elections, a splintered Court appears to have supported Congress's power to pass laws that protect Fourteenth Amendment rights against state intrusions, but rejected the ability of Congress to extend the substantive content of those rights. As 18-year-olds are not a protected class under the Fourteenth Amendment, the Court found that Congress was attempting to create, rather than protect, Fourteenth Amendment rights. More recently, in the case of Flores v. City of Boerne,78 the Court struck down the Religious Freedom Restoration Act (RFRA) as beyond the authority of Congress under §5 of the Fourteenth Amendment. For many years prior to the passage of RFRA, a law of general applicability restricting the free exercise of religion, to be consistent with the Freedom of Exercise Clause of the First Amendment, had to be justified by a compelling governmental interest. However, in the 1990 case of Oregon v. Smith,79 the Court had lowered this standard. The Smith case involved members of the Native American Church who were denied unemployment benefits when they lost their jobs for having used peyote during a religious ceremony. The Smith case held that neutral generally applicable laws may be applied to religious practices even if the law is not supported by a compelling governmental interest. RFRA, in response, was an attempt by the Congress to overturn the Smith case, and to require a compelling governmental interest when a state applied a generally applied law to religion. The City of Boerne case arose when the City of Boerne denied a church a building permit to expand, because the church was in a designated historical district. The church challenged the zoning decision under RFRA. The Supreme Court reiterated that §5 of the Fourteenth Amendment gave the Congress the power to enforce existing constitutional protections, but found that this did not automatically include the power to pass any legislation to protect these rights. Instead, the Court held that there must be a "congruence and proportionality" between the injury to be remedied and the law adopted to that end. For instance, the Court's decision in Katzenbach v. Morgan of allowing the banning of literacy tests was justified based on an extensive history of minorities being denied suffrage in this country. In contrast, the Court found no similar pattern of the use of neutral laws of general applicability disguising religious bigotry and animus against religion. Rather than an attempt to remedy a problem, RFRA was seen by the Court as an attempt by Congress to overturn an unpopular Supreme Court decision. The law focused on no one area of alleged harm to religion, but rather just broadly inhibited state and local regulations of all types. Consequently, the Court found RFRA to be an overbroad response to a relatively nonexistent problem. The scope of the enforcement power under § 5 of the Fourteenth Amendment also has become important in cases where the Court has found that Congress has overreached its power under other provision of the Constitution, or is limited by some provision thereof. For instance, as discussed in detail below, the Supreme Court has held that the Eleventh Amendment and state sovereign immunity generally prohibit individuals from suing states for damages under federal law.80 However, the Supreme Court has also held that Congress can abrogate state sovereign immunity under the Fourteenth Amendment.81 This means that in
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many cases, litigants suing states will have to find a Fourteenth Amendment basis for federal legislation in order to defeat an Eleventh Amendment defense. For instance, a significant amount of federal legislation is clearly supported by the commerce clause, but it might not be supported under §5. Recently, the Court decided two cases that illustrate the difficulties of establishing Fourteenth Amendment authority for such legislation. In College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board,82 the Supreme Court considered an unfair competition suit brought by a New Jersey savings bank against the state of Florida. The New Jersey savings bank had developed a patented program where individuals could use a certificate of deposit contract to save for college. The state of Florida set up a similar program, and the College Savings Bank sued Florida for false and misleading advertising under a provision of the Trademark Act of 1946 (Lanham Act),83 alleging that Florida had made misleading representations about its own product. The Court first noted that under Seminole Tribe of Florida v. Florida, Article I, powers such as the power to regulate commerce were insufficient to abrogate Eleventh Amendment immunity Thus, the Court next considered whether the Lanham Act could be characterized as an exercise of Congress's power under §5 of the Fourteenth Amendment. Although the Fourteenth Amendment provides that no state shall "deprive a person of ... property ... without due process of law," the Court found that the unfair trade in question, which consisted of allegedly inaccurate statements made by the state of Florida about its own saving program, did not infringe on any exclusive property right held by the College Savings Bank. As the Court found that Congress had not established an authority under the Fourteenth Amendment to abrogate the state's immunity, the College Savings Bank could not proceed against the state of Florida for unfair trade practices. Even if a property interest is established, it would still need to be determined that the Congress had the authority to protect that property interest under the Fourteenth Amendment. In Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank,84 the Court, in a decision concerning the same parties as the case discussed above, considered whether the College Savings Bank could sue the state of Florida for patent infringement. Congress had passed a law specifically providing that states could be sued for patent violations,85 citing three sources of constitutional authority: the Article I Patent Clause,86 the Article I Interstate Commerce Clause87 and §5 of the Fourteenth Amendment. As the Court had previously precluded abrogation of sovereign immunity through the exercise of Article I powers, the question became whether Congress had the authority to pass patent legislation under §5 of the Fourteenth Amendment. Unlike the previous case, the Court found that, under a long line of precedents, patents were considered property rights. However, the Court had to further consider whether the protection of such a property right under §5 of the Fourteenth Amendment was "appropriate" under its ruling in City of Boerne. Consequently, the Court evaluated whether a federal right to enforce patents against states was appropriate remedial or preventive legislation aimed at securing the protections of the Fourteenth Amendment for patent owners. Specifically, the Court sought to evaluate whether unremedied patent infringement by states rose to the level of a Fourteenth Amendment violation that the Congress could redress. The Court noted that Congress had failed to identify a pattern of patent infringement by the states, and that only a handful of patent infringement cases had been brought against states in the last 100 years. The Court also noted that Congress had failed to establish that state remedies for patent infringement were inadequate for citizens to seek compensation for
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injury. In fact, the state of Florida argued that no constitutionally based violation had occurred, as it had procedures in place that would provide the necessary due process for patent infringement by the state to be challenged. Consequently, the Court found that the exercise of §5 of the Fourteenth Amendment in this context would be out of proportion to the remedial objective. The Court engaged in a similar analysis, with like results, in evaluating the application of age discrimination laws to the states. In Kimel v. Florida Board of Regents,88 the Court noted that the Age Discrimination in Employment Act of 1967, while a valid exercise of Congress's commerce power, could not be applied to the states unless Congress also had the power to enact it under §5 of the Fourteenth Amendment. The Kimel Court held, however, that age is not a suspect class, and that the provisions of the ADEA far surpassed the kind of protections that would be afforded such a class under the Fourteenth Amendment. Further, the Court found that an analysis of the Congress's ability to legislate prophylactically under section §5 required an examination of the legislative record to determine whether the remedies provided were proportional and congruent to the problem. A review by the Court of the ADEA legislative record found no evidence of a pattern of state governments discriminating against employees on the basis of age. Consequently, the Court held that a state could not be liable for damages under the ADEA. Similarly, the application of Title I of the Americans with Disabilities Act (ADA) to states was considered in the case of the Board of Trustees v. Garrett,89 again with similar result. In Garrett, the Court evaluated whether two plaintiffs could bring claims for money damages against a state university for failing to make reasonable employment accommodations for their disabilities; one plaintiff was under treatment for cancer, the other for asthma and sleep apnea. Although disability is not a suspect class and thus discrimination is evaluated under a rational basis test, the Court had previously shown a heightened sensitivity to arbitrary discrimination against the disabled.90 Further, Congress had made substantial findings regarding the pervasiveness of such discrimination. However, the Supreme Court declined to consider evidence of discrimination by either the private sector or local government, and dismissed the examples that did relate to the states as unlikely to rise to the level of constitutionally "irrational" discrimination. Ultimately, the Court found that no pattern of unconstitutional state discrimination against the disabled had been established, and that the application of the ADA was not a proportionate response to any pattern that might exist. However, the Court reached a different conclusion in the case of Nevada Department of Human Resources v. Hibbs.91 In the Hibbs case, an employee of the Nevada Department of Human Resources had a dispute with the Department regarding how much leave time he had available under the Family and Medical Leave Act of 1993 (FMLA). The FMLA requires employers to provide employees up to 12 weeks of unpaid leave to care for a close relative with a "serious health condition."92 In Hibbs, the Court held that Congress had the power to abrogate a state's Eleventh Amendment immunity under the FMLA, so that a state employee could recover money damages. The Court found that Congress had established significant evidence of a long and extensive history of sex discrimination with respect to the administration of leave benefits by the states, and that history was sufficient to justify the enactment of the legislation under § 5. The standard for demonstrating the constitutionality of a gender-based classification is more difficult to meet than the rational-basis test, such was at
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issue in Kimel and Garrett, so it was easier for Congress to show a pattern of state constitutional violations. Even where the Eleventh Amendment and state sovereign immunity are not at issue, the Court may be asked to consider whether the Fourteenth Amendment establishes a sufficient basis for a federal law that does not appear to have a constitutional basis elsewhere in the Constitution. For instance, in United States v. Morrison,93 discussed previously,94 the Court found that Congress, in creating a federal private right of action for victims of gendermotivated violence, had exceeded its authority under the Commerce Clause. Consequently, the plaintiff in that case made the alternate argument that the federal private right of action could be sustained under § 5 of the Fourteenth Amendment. This argument, however, suffered from two major defects. First, the Court has long held that the Fourteenth Amendment provides Congress with the authority to regulate states but not individuals.95 In Morrison, however, the civil case had been brought against the individuals alleged to have engaged in the offense. The plaintiff attempted to avoid this problem by arguing that there is pervasive bias in various state justice systems against victims of gender-motivated violence, and that providing a federal private right of action was an appropriate means to remedy this "state action." However, the Court rejected this argument, finding that the remedy did not meet the City of Boerne test of "congruence and proportionality to the injury to be prevented or remedied and the means adopted to that end."96 Because the federal private right of action was not aimed at the allegedly discriminatory actions by state officials, but was instead directed against the individual engaging in the violence itself, the Court found that the action could not be supported by reference to the Fourteenth Amendment.97 The Court again considered the issue of Congress's power under § 5 of the Fourteenth Amendment in Tennessee v. Lane.98 In the Lane case, two paraplegic plaintiffs alleged that the state of Tennessee and several of its counties violated Title II of the ADA, which requires that the disabled be provided access to public services, programs, and activities, by failing to provide physical access to state courts.99 The Court held that Title II, as applied to this right of access to the courts, was a proper exercise of Congress's authority under § 5 of the Fourteenth Amendment to abrogate states' Eleventh Amendment immunity Similar to its holdings in the Garrett and Hibbs cases, the Court found that Congress had established sufficient evidence of the sustained denial of persons with disabilities of access to the courts.100 In applying the Boerne congruence and proportionality test, the Court in Lane distinguished the rights Congress intended to protect in Title II (access to public services, programs, and activities) from the Title I employment rights that had been struck down in Garrett. While both Titles I and II were intended to address unequal treatment of the disabled (which is only a constitutional violation when it is irrational), the Court held that Title II was also intended to reach the more rigorously protected rights of the Due Process Clause of the Fourteenth Amendment, such as the right of access to the courts.101 The Court stated that the due process rights Congress sought to protect under Title II required a standard of judicial review at least as searching as the sex-based classifications the Court considered in Hibbs.102 The limited nature of Title II as a remedy for the denial of the right of access to courts also informed the Court's holding that the measure is a valid prophylactic remedy.103 Congress's authority under § 5 of the Fourteenth Amendment to abrogate states' Eleventh Amendment immunity appears strongest when the focus of the prophylactic measure at issue
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is conduct that actually violates a constitutional right. In United States v. Georgia,104 a disabled state prison inmate who used a wheelchair for mobility alleged that the state of Georgia violated Title II of the ADA in relation to his conditions of confinement. The Court reiterated its holding in Lane that Title II is a constitutional exercise of Congress's Fourteenth Amendment powers. It went on to state that Title II was valid as applied to the plaintiff's cause of action, because he alleged independent violations under § 1 of the Fourteenth Amendment concerning his prison treatment.105
THE TENTH AMENDMENT The Tenth Amendment provides that "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." While this language would appear to represent one of the most clear examples of a federalist principle in the Constitution, it has not had a significant impact in limiting federal powers. Initially, the Supreme Court interpreted the Tenth Amendment to have substantive content, so that certain "core" state functions would be beyond the authority of the federal government to regulate. Thus, in National League of Cities v. Usery,106 the Court struck down federal wage and price controls on state employees as involving the regulation of core state functions.107 The Court, however, overruled National League of Cities in Garcia v. San Antonio Metropolitan Transit Authority.108 In sum, the Court in Garcia seems to have said that most disputes over the effects on state sovereignty of federal commerce power legislation are to be considered political questions, and that the states should look for relief from federal regulation through the political process.109 This appeared to have ended the Court's attempt to substantively limit federal government regulation of the states. The Court soon turned, however, to the question of how the Constitution limits the process by which the federal government regulates the states. In New York v. United States,110 Congress had attempted to regulate in the area of low-level radioactive waste. In a 1985 statute, Congress provided that states must either develop legislation on how to dispose of all low-level radioactive waste generated within the state, or the state would be forced to take title to such waste, which would mean that it became the state's responsibility. The Court found that although Congress had the authority under the Commerce Clause to regulate lowlevel radioactive waste, it only had the power to regulate the waste directly. Here, Congress had attempted to require the states to perform the regulation, and decreed that the failure to do so would require the state to deal with the financial consequences of owning large quantities of radioactive waste. In effect, Congress sought to "commandeer" the legislative process of the states. In the New York case, the Court found that this power was not found in the text or structure of the Constitution, and it was thus a violation of the Tenth Amendment. A later case presented the question of the extent to which Congress could regulate through a state's executive branch officers. This case, Printz v. United States,111 involved the Brady Handgun Act. The Brady Handgun Act required state and local law-enforcement officers to conduct background checks on prospective handgun purchasers within five business days of an attempted purchase. This portion of the Act was challenged under the Tenth Amendment, under the theory that Congress was without authority to "commandeer" state executive branch officials. After a historical study of federal commandeering of state
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officials, the Court concluded that commandeering of state executive branch officials was, like commandeering of the legislature, outside of Congress's power, and consequently a violation of the Tenth Amendment. Although the federal government is prohibited from commandeering either the legislature or executive branch of a state, this does not appear to be the case with state judicial branches. The federal judicial system and the state judicial system were not intended to be as separate as the other branches of government, and the Supremacy Clause of the Constitution explicitly provides that state courts must follow federal law, even if it overrides state laws or constitutions.112 So, there appears to be less of a concern regarding the "commandeering" of state courts. A key distinction between constitutional "substantive regulation" and unconstitutional "commandeering" appears to be whether or not the federal mandate in question is regulating state activities or whether it is seeking to control the manner in which states regulate private parties. Thus, for instance, the Court recently held in Reno v. Condon113 that the Driver's Privacy Protection Act of 1994, which regulates the sale of personal information gathered from persons seeking drivers licenses, was substantive regulation, not commandeering. In that case, the Court found that the state was not being directed on how to regulate its citizens, but rather on how to treat information that had been elicited from those citizens. However, because the regulation affected both state governments and private resellers of such information, the Court reserved the question as to whether a law, which only regulated state activities, would be constitutionally suspect.
ELEVENTH AMENDMENT AND STATE SOVEREIGN IMMUNITY The Eleventh Amendment and state sovereign immunity provide an example of the complicated interaction between the powers of the federal government, the state, and the individual. The basic issue to be addressed here is the extent to which individuals can sue a state under federal law.114 The answer to this question may vary based on a number of factors, including what law the suit is being brought under, whether the state has taken action to make itself amenable to such law, and what relief is being sought. The starting point for such a discussion is usually the Eleventh Amendment. The Eleventh Amendment reads as follows: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State." The actual text of the Amendment appears to be limited to preventing citizens from bringing diversity cases against states in federal courts. However, the Supreme Court has expanded the concept of state sovereign immunity to reach much further than the text of the amendment. The Eleventh Amendment, the first amendment to the Constitution after the adoption of the Bill of Rights, was passed as a response to the case of Chisholm v. Georgia.115 Immediately after the adoption of the Constitution, a number of citizens filed cases in federal court against states. One of these, Chisholm, was a diversity suit filed by two citizens of South Carolina against the State of Georgia to recover a Revolutionary War debt. In Chisholm, the Supreme Court noted that Article III of the Constitution specifically grants the federal courts diversity jurisdiction over suits "between a State and citizens of another
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State."'116 Thus, the Court held that this grant of jurisdiction authorized the private citizen of one state to sue another state in federal court without that state's consent. The states were outraged that such a suit could be brought in federal court, protesting that the drafters of the Constitution had promised the states they would not be sued by their debtors in federal courts Almost immediately after the decision of the Chisholm cases, resolutions were introduced in Congress to overturn it, the end result being the Eleventh Amendment. The amendment ensured that a citizen of one state could not sue another state in federal court — in other words, a citizen could not sue under federal diversity jurisdiction without a state's permission. However, even after the Eleventh Amendment was passed, a number of cases were filed against states by private citizens, with jurisdiction based on federal question rather than diversity. Under this reasoning, if a citizen of a state sued his or her own state in federal court, the prohibition of the Eleventh Amendment would not apply. Consequently, for a number of years after the passage of the Eleventh Amendment, this type of case was entertained by the federal courts. However, this line of cases was ended by the case of Hans v. Louisiana.117 In Hans v. Louisiana, the Court provided for an interpretation of the Eleventh Amendment that allowed the Court to move beyond the literal text of that amendment. Under the reasoning of the Court, the Eleventh Amendment was not so much an amendment to the original structure of the Constitution as it was an attempt to overturn a specific court decision that had misinterpreted this structure. According to this line of reasoning, the Eleventh Amendment was not an amendment, but a restoration of the original constitutional design. Ultimately, the issue before the Court in Hans v. Louisiana and in subsequent cases was not the Eleventh Amendment, but the issue of state sovereign immunity State sovereign immunity means that a state must consent to be sued in its own court system. This concept is based on early English law, which provided that the Crown could not be sued in English courts without its consent. The doctrine of sovereign immunity was in effect in the states that were in existence at the time of the drafting of the Constitution. Further, various writings by the founding fathers seemed to support the concept.118 Thus, the issue before the Court in Hans was whether the grant of jurisdiction to federal courts under Article III of the Constitution had abrogated state sovereign immunity The Hans Court found that Article In did not have this effect. Although the Hans Court answered the issue of whether adoption of Article DI of the Constitution had waived state sovereign immunity in federal courts, it left a number of questions unanswered. For instance, the question as to whether there are any instances where Congress could, by statute, abrogate a state's sovereign immunity, so that a citizen could sue a state under federal law. In Seminole Tribe of Florida v. Florida,119 the Court seemed to answer that in most cases, such suits would not be accepted. The Seminole case involved the Indian Gaming Regulatory Act of 1988, which provided Indian tribes with an opportunity to establish gambling operations. However, to establish such gambling, the Indian tribes had to enter into a compact with the state in which they were located. The states, in turn, were obligated to negotiate with the Indian tribes in good faith, and this requirement was made enforceable in federal court. Thus, the question arose as to whether the tribes could sue the states under the Eleventh Amendment. The Court in Seminole found it important to establish what constitutional authority was being exercised by the passage of the Indian Gaming Law. The Court determined that the power being exercised was the Indian Commerce Clause,120 which is found in Article I. The
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Court had found previously in Pennsylvania v. Union Gas,121 that the Commerce Power, as a plenary power, was so broad that of necessity it required the ability to abrogate state sovereign immunity In Seminole, however, the Court overturned Union Gas, holding that as the Eleventh Amendment was ratified after the passage of the Constitution and Article I, it was a limitation on Congress's authority to waive a state's sovereign immunity under that Article. The Court did indicate, however, that Congress can abrogate state sovereignty under the Fourteenth Amendment. While the logic behind this distinction is unclear,122 it means that in many cases, litigants suing states will try to find a Fourteenth Amendment basis for federal legislation to defeat an Eleventh Amendment defense. A question left unanswered by the Hans decision was whether the Eleventh Amendment, which prohibited Congress from abrogating a state's sovereign immunity in federal court, extended to a state's own courts. In Alden v. Maine,123 the Supreme Court found that the same principles of sovereign immunity identified in Hans would prevent Congress from authorizing a state to be sued in its own courts without permission. As in Hans, the Court acknowledged that the literal text of the Eleventh Amendment does not prohibit such suits, as its language addresses only suits brought in federal courts. Consequently, the Court relied instead on the proposition that sovereign immunity is a "fundamental postulate" of the constitutional design, and is not amenable to congressional abrogation. The same reasoning that prohibited these suits from being brought in federal court, a deference to the "respect and dignity" of state sovereignty, led the Court to conclude that it would be anomalous to allow such cases to be brought instead in state court. In Federal Maritime Comm'n v. South Carolina State Ports Authority, the Court addressed the issue of whether state sovereign immunity extended to proceedings before federal agencies.124 In this case, the South Carolina State Ports Authority denied a cruise ship permission to berth at the state's port facilities in Charleston, South Carolina, contending that the primary purpose of the cruise was for gambling. The cruise ship company, Maritime Services, filed a claim with the Federal Maritime Commission (FMC) arguing that South Carolina had discriminated against it in violation of the Shipping Act of 1984 and sought, among other things, damages for loss of profits.125 The Port Authority, however, successfully moved to dismiss the complaint, arguing that it was inconsistent with the concept of state sovereign immunity In reviewing the case, the Court analogized between the FMC' s quasi-judicial proceedings and traditional judicial proceedings, while noting that "[t]he preeminent purpose of state sovereign immunity is to accord States the dignity that is consistent with their status as sovereign entities.126 Consequently, the Court agreed that state sovereign immunity bars the FMC from adjudicating damage claims made by a private party against a nonconsenting State.127 In dissent, however, Justice Breyer noted that agency administrative proceedings are not judicial proceedings and that the ultimate enforcement of such proceedings in a court is done by the federal agency, to which state sovereign immunity does not apply. Thus, while an agency remains capable of enforcement actions against states in federal court, it cannot use its own adjudicative process to determine whether to do so, but must rely on its investigatory powers.128 According to Justice Breyer, "[t]he natural result is less agency flexibility, a larger federal bureaucracy, less fair procedure, and potentially less effective law enforcement."129
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CONCLUSION In conclusion, it would appear that the status of the state in the federal system has been strengthened by recent Supreme Court opinions. Although the Court has not scaled back the federal government's substantive jurisdiction significantly, it has to some extent prevented the expansion of Congress's power under the Commerce Clause and under §5 of the Fourteenth Amendment. Further it has created a variety of obstacles as to how these powers can be executed, forbidding Congress under the Tenth Amendment from commandeering the authority of state legislative and executive branches, and limiting the authority of Congress to abrogate state sovereign immunity Ultimately, however, Congress retains significant powers under the Constitution and, under the Supremacy Clause, may require the enforcement of its laws in both state and federal court.
ENDNOTES 1
Portions of this report were prepared by Kristin Thornblad, legal intern. See, e.g., U.S. Const. Art. I, §10, cl. 2 ("No State shall ... lay any Impost or Duties on Imports or Exports.") 3 "No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War unless actually invaded, or in such imminent Danger as will not admit of delay." U.S. Const., Art. I,§ 10, cl. 3. 4 "Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof." U.S. Const. Art. IV, § 1. This "Full Faith and Credit Clause" gives Congress what amounts to enforcement authority over the required recognition by each state of the judgments, records, and legislation of other states. 5 "... [N]o new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as Congress." U.S. Const., Art. IV, §3, cl. 1. 6 Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824). 7 Article I, § 1, of the Constitution provides that "All legislative powers herein granted shall be vested in a Congress of the United States." Unlike a typical grant of power to states Article I, § 1, does not grant to Congress "all legislative power," but rather grants to Congress only those specific powers enumerated in §8 and elsewhere in the Constitution. 8 As stated by Chief Justice Marshall in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819): "Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional." 9 "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United 2
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States; but all Duties, Imposts and Excises shall be uniform throughout the United States." U.S. Const., Art. I, §8, cl. 1. 10 "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law." U.S. Const., Art. I, §9, cl. 7. 11 United States v. Butler, 297 U.S. 1 (1936). 12 "To regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes." U.S. Const., Article I,§ 8, cl. 3. 13 U.S. Const., Art. I, §8, cl. 4. 14 U.S. Const., Art. I, §8 cl. 5. 15 U.S. Const., Art. I, §8, cl. 6. 16 U.S. Const., Art. I, §8, cl. 7. 17 U.S. Const., Art. I, §8, cl. 8. 18 "The Congress shall have power ... To establish an uniform Rule of Naturalization." U.S. Const., Art I, § 8, cl. 4. "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." U.S. Const., Amend. XIV, §1. 19 "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." U.S. Const., Amend. XIV, § 1. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. Id. at §5. 20 U.S. Const., Amend. XXVI. 21 U.S. Const., Amend. XV. 22 U.S. Const., Amend. XIX. 23 "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators." U.S. Const., Article I, §4, cl. 1. While the Fifteenth Amendment and the other voting rights guarantees noted above protect only against state action, congressional authority under this clause includes protection of the electoral process against private interference. A variety of enactments can be traced to this authority, including campaign finance laws and the Hatch Act (insofar as it applies to federal elections). 24 "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members." Article I, §5, cl. 1. The House and the Senate act as judicial tribunals in resolving contested election cases. 25 E.g., U.S. Const., Amend. XIV, §2 (apportionment). 26 "The Congress shall have power ... To exercise exclusive Legislation in all Cases whatsoever, over such District ... as may, by Cession of Particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dockYards and other needful Buildings." Article I, §8, cl. 17. "The Congress shall have power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States... ." Article IV, § 3, cl. 2. 27 "[N]or shall private property be taken for public use, without just compensation." U.S. Const., Amend V Implicit in the Fifth Amendment's requirement that just compensation
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be paid for private property that is taken for a public use is the existence of the government's power to take private property for public use. 28 See, e.g., U.S. Const. Art. I, § 8, cl. 10 ("The Congress shall have power ... To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations"); U.S. Const., Art. I, § 8, cl. 11 ("... To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water."); U.S. Const., Art. I, §8, cl. 12 ("To raise and support Armies... ."). 29 U.S. Const., Art. I, §8, cl. 3. 30 514 U.S. 549 (1995). 31 18 U.S.C. §922(q)(1)A). 32 Abel, The Commerce Clause in the Constitutional Convention and in Contemporary Comment, 25 Minn. L. Rev. 432, 443-44 (1941); Greenspan, The Constitutional Exercise of the Federal Police Power: A Functional Approach to Federalism, 41 Vanderbilt Law Review 1019, 1022-24 (1988). Those materials which do address Congressional control over commerce focus on the necessity of uniformity in matters of foreign commerce, although the drafters clearly intended domestic commerce to be regulated as well. P. Kurland & R. Lerner, THE FOUNDER'S CONSTITUTION 477-528 (1987). 33 Alexander Hamilton, CONTINENTALIST, No. 5, 18 Apr. 1782 (Paper 3:75-82) as reprinted in P. Kurland & R. Lerner, supra note 32 ("The vesting of the power of regulating trade ought to have been a principal object of the confederation for a variety of reasons. It is as necessary for the purposes of commerce as of revenue.") 34 Greenspan, supra note 32 at 1023. 35 Gibbons v. Odgen, 22 U.S. (9 Wheat.) 1, 197-98 (1824). 36 See, e.g., Brown v. Maryland, 25 U.S. (12 Wheat.) 419 (1827). 37 United States v. Lopez, 514 U.S. at 593 (Thomas, J., dissenting). 38 Champion v. Ames (The Lottery Case), 188 U.S. 321 (1903). 39 Hippolite Egg Co. v. United States, 220 U.S. 45 (1911). 40 Hoke v. United States, 227 U.S. 308 (1913). 41 United States v. E.C. Knight Co., 156 U.S. 1, 12 (1895). 42 Carter v. Carter Coal Co., 298 U.S. 238, 304 (1936). 43 301 U.S. 1 (1937). 44 301 U.S. at 41. 45 United States v. Darby, 312 U.S. 100 (1941)(approving legislation relating to working conditions). 46 312 U.S. at 121. 47 Wickard v. Filburn, 317 U.S. 111 (1942). 48 id. 49 See Heart of Atlanta Motel v. United States, 370 U.S. 241 (1964); Katzenbach v. McClung, 379 U.S. 241 (1964). 50 Perez v. United States, 402 U.S. 146 (1971). 51 Herman Schwartz, Court Tries to Patrol a Political Line, Legal Times 25 (May 8, 1995). 52 The Court failed to note that to some extent, the three categories are intertwined. For instance, the first category, the regulation of "streams" or "channels" of commerce, allows regulation of the creation, movement, sale and consumption of merchandise or services. But the initial extension of the "streams" of commerce analysis by the Court to intrastate trade was justified by the "effect" of these other activities on commerce. See
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NLRB v. Jones & Laughlin, 301 U.S. 1, 31 (1936). Similarly, the second category, which allows the regulation of such instrumentalities of commerce as planes, trains or trucks, is also based on the theory that a threat to these instrumentalities "affects" commerce, even if the effect is local in nature. Southern Railway Company v. United States, 222 U.S. 21, 26-27 (1911)(regulation of intrastate rail traffic has a substantial effect on interstate rail traffic). Thus, the final category identified by the Court appears to be a catch-all for all other activities which "substantially affect" commerce. 53 514 U.S. at 559. 54 Wickard v. Filburn, 317 U.S. 111 (1942). 55 514 U.S. at 564. The Court rejected arguments that possession of guns in school affected the national economy by its negative impact on education. Id. 56 514 U.S. at 561. 57 514 U.S. at 560. 58 514 U.S. at 580 (Kennedy, J., concurring). The Court has reiterated its concern over extending Commerce Clause powers to Congress in areas of the law traditionally reserved to the states. See, e.g., Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, 531 U.S. 159, 174 (2001) (rejecting an interpretation of the Clean Water Act which allowed regulation of nonnavigable, isolated wetlands as infringing upon the "traditional and primary state power over land and water use"). 59 See, e.g., 18 U.S.C. §247 (2000)(forbidding obstruction of persons in the free exercise of religious beliefs where the offense "is in or affects interstate or foreign commerce.") 60 529 U.S. 598 (2000). 61 Id. at 609. 62 requirement that a commerce clause regulation be economic or commercial has been influential in a number of subsequent statutory interpretation cases. In Jones v. United States, 529 U.S. 848 (2000), a criminal defendant challenged his conviction under 18 U.S.C. § 844(i), which, in part, makes it a crime to destroy by fire or explosive a building "used" in interstate commerce. Applying the statutory canon that one should interpret a statute to avoid constitutional doubt, Jones v. United States, 526 U.S. 227, 239 (1999), the Court held that the statute did not apply to a private residence that was "used" as collateral to obtain and secure a loan, "used" to obtain insurance, and "used" to receive natural gas from other sources. The Court construed the statute to require that a building protected by § 844(i) be "actively employed" for commercial purposes, id. at 855, arguing that a broader interpretation would extend the statute to virtually every arson in the country. A similar result occurred in the case of Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001). In SWANCC, the Court considered a challenge to the Migratory Bird Rule, 51 Fed. Reg. 41217, which extended § 404(a) of the Clean Water Act (CWA), 33 U.S.C. § 1344(a) to nonnavigable, isolated wetlands. The Court held that this interpretation of the statute would raise serious constitutional questions, requiring, for instance, a close examination of precisely what activity was being regulated. Absent a clear statement from Congress that it intended the Clean Water Act to have such a broad reach, the Court found the rule was not supported by the statute. Id. at 173. See also Rapanos v. United States Army Corps of Engineers, 165 L. Ed. 2d 159, 201 (2006).
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125 S. Ct. 2195 (2005). Cal. Health & Safety Code Ann § 11362.5 (West Supp. 2005) (providing for the legal possession of medical marijuana by a patient or primary care-giver, upon the written or oral recommendation of a physician). 65 125 S. Ct. at 2211. 66 317 U.S. 111 (1942). 67 Id. at 125. 68 52 Stat. 31. 69 Id at 128-29. 70 Id. at 127. 71 125 U.S. at 2207. 72 Id. 73 U.S. Const., Art. I, § 8. 74 U.S. Const., Amend. XBI (prohibiting slavery). 75 U.S. Const., Amend. XV (voting rights). 76 384 U.S. 641 (1966). 77 400 U.S. 112 (1970). 78 521 U.S. 507 (1997). 79 494 U.S. 872 (1990). 80 See notes 90-104 and accompanying text, infra. 81 Seminole Tribe of Florida v. Florida, 517 U.S. 44, 65-66 (1996); See discussion infra notes 95-98 and accompanying text. 82 527 U.S. 666 (1999). 83 15 U.S.C. § 1125(a). 84 527 U.S. 627 (1999). 85 Patent and Plant Variety Protection Remedy Clarification Act (Patent Remedy Act), 35 U.S.C. §§ 271(a). 86 U.S. Const. Art. I, § 8, cl. 8. 87 U.S. Const. Art. I, § 8, cl. 3. 88 528 U.S. 62 (2000). 89 531 U.S. 356 (2001). 90 Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985). 91 538 U.S. 721 (2003). 92 29 U.S.C. § 2612(a)(1)(C). 93 529 U.S. 598 (2000). 94 See supra notes 60-61 and accompanying text. 95 See Shelley v. Kraemer, 334 U.S. 1, 13 (1948). 96 521 U.S. at 526. 97 529 U.S. at 626. 98 541 U.S. 509 (2004). 99 One plaintiff in Lane claimed he was unable to appear to answer criminal charges on the second floor of a courthouse that had no elevator. The second plaintiff, a certified court reporter, claimed she was denied the opportunity both to work and to participate in the judicial process because she was unable to access numerous county courthouses. 64
Federalism, State Sovereignty, and the Constitution 100
95
The Court cited congressional evidence that legislative attempts preceding Title II inadequately addressed the problem of patterned unconstitutional treatment in access to the courts. 541 U.S. at 526. 101 The Court held that it need not examine Title II as a whole when evaluating the remedy's congruence and proportionality to the injury of disability discrimination in access to the courts. The relevant inquiry solely concerned Title II' s scope as applied to the rights associated with access to judicial services. The Court cited as precedent for this limited application approach the Garrett case, in which it considered only Title I of the ADA for purposes of Fourteenth Amendment analysis. Based on this narrow scope of inquiry, the Court determined that both the pattern of past discrimination in access to the courts and the failure of previous legislative attempts to remedy the injury were sufficient to hold that Title II is a valid exercise of Congress' power under § 5 of the Fourteenth Amendment. 102 U.S. at 529. As noted by Chief Justice Rehnquist in dissent, 541 U.S. at 541-42 (Rehnquist, C.J., dissenting), the congruence and proportionality analysis in the majority opinion in Lane did not limit itself to historical examples of the disabled being denied due process, but also cited a history of disparate treatment in other less protected areas. See id. at 524-25. 103 Title II does not require states to compromise the integrity of public programs or make unduly burdensome changes to public facilities. 541 U.S. at 532. Rather, states need only take reasonable measures to comply with Title II regulations. Id. 104 125 S. Ct. 877 (2006). 105 Id. at 881. 106 426 U.S. 833 (1976). 107 National League of Cities v. Usery, the Court conceded that the legislation under attack, which regulated the wages and hours of certain state and local governmental employees, was undoubtedly within the scope of the Commerce Clause, but it cautioned that there are attributes of sovereignty attaching to every state government which may not be impaired by Congress, not because Congress may lack an affirmative grant of legislative authority to reach the matter, but because the Constitution prohibits it from exercising the authority in that manner 108 469 U.S. 528 (1985). Justice Blackmun' s opinion for the Court in Garcia concluded that the National League of Cities test for "integral operations" in areas of traditional governmental functions had proven impractical, and that the Court in 1976 had "tried to repair what did not need repair." 109 See also South Carolina v. Baker, 485 U.S. 505 (1988). 110 505 U.S. 144 (1992). 111 521 U.S. 898 (1997). 112 "The Constitution and the Law of the United States ... shall be the Supreme Law of the Land; and the Judges of every State shall be bound thereby... ." U.S. Const., Art. VI, cl. 2. 113 528 U.S. 141 (2000). 114 It should be noted that not all suits in which a state is involved is a "suit" against a state. In Tennessee Student Assistance Corp. v. Hood, 541 U.S. 440 (2004), the Court addressed state sovereign immunity in the context of bankruptcy proceedings. In that case, the Court addressed whether Eleventh Amendment immunity extended to an adversary proceeding initiated by a debtor seeking an undue hardship discharge of her state-held
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student loan debt. The Court held that the proceeding did not constitute a suit against the state for purposes of the Eleventh Amendment. The Court noted that the bankruptcy petition in question was an in rem proceeding, so that the court's jurisdiction was over the petitioner's debt, rather than over her person or the state. Id. at 448. Thus, the federal bankruptcy court's exercise of jurisdiction over the state-held debt did not infringe upon the state's sovereignty immunity Id. at 450. 115 2 U.S. (Dall.) 419 (1793). 116 U.S. Const., Art. DI, §2. 117 134 U.S. 1 (1890). 118 See Alden v. Maine, 527 U.S. 706, 2248 (1999). 119 517 U.S. 44 (1996). 120 U.S. Const., Art. I, § 8, cl. 3. 121 491 U.S. 1 (1989). 122 One apparent argument is that the Fourteenth Amendment was passed after the Eleventh Amendment and thus, unlike legislative powers found in Article I of the Constitution, it can be seen as an alteration of the restrictions of the Eleventh Amendment. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 65-66 (1996). However, as is discussed in detail below, the Supreme Court has held that state sovereign immunity preceded and predated the Constitution. Alden v. Maine, 527 U.S. 706, 2248 (1999). Consequently, all the Articles of the Constitution could arguably be seen as altering the restrictions of the state sovereign immunity. Another argument made by the Court in Seminole is that the Fourteenth Amendment was designed to alter the pre-existing balance between state and federal power at the time of its passage. This argument is more plausible, but is still difficult to differentiate between Congress' power under the Fourteenth Amendment and Congress' power under the Articles of the Constitution. Like the Fourteenth Amendment, the Articles of the Constitution were clearly intended to alter the balance between state and federal power at the time of the passage of the Constitution, which included state sovereign immunity This is exemplified by the Supremacy Clause, U.S. Const., Art. VI, cl. 2 which provides that laws passed under the Articles of the Constitution would be supreme over state law. 123 527 U.S. 706 (1999). 124 122 S. Ct. 186 (2002). 125 46 U.S.C. App. § 1701 (1994 & Supp. V). 126 122 S. Ct. at 1874. 127 The Court noted that "[there are] numerous common features shared by administrative adjudications and judicial proceedings." 122 S. Ct. at 1872. "[F]ederal administrative law requires that agency adjudication contain many of the same safeguards as are available in the judicial process. The proceedings are adversary in nature. They are conducted before a trier of fact insulated from political influence. A party is entitled to present his case by oral or documentary evidence, and the transcript of testimony and exhibits together with the pleadings constitutes the exclusive record for decision. The parties are entitled to know the findings and conclusions on all of the issues of fact, law, or discretion presented on the record." Id. 128 Justice Breyer noted that after this decision "a private person cannot bring a complaint against a State to a federal administrative agency where the agency (1) will use an
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internal adjudication process to decide if the complaint is well founded, and (2) if so, proceed to court to enforce the law." Id. at 1881. 129 Id.
In: Congress of the U.S: Commitees, Rules and Procedures ISBN 978-1-60456-416-7 Editor: Sela G. Thomason © 2009 Nova Science Publishers, Inc.
Chapter 4
RESCISSION ACTIONS SINCE 1974: REVIEW AND ASSESSMENT OF THE RECORD* Virginia A. McMurtry SUMMARY The Impoundment Control Act (ICA) was included as Title X of the Congressional Budget and Impoundment Control Act of 1974, signed into law on June 12, 1974 (88 Stat. 332). Under the ICA, unless Congress takes action to approve a rescission request from the President within the 45-day review period prescribed by the law, the funds must be released. With respect to a presidential rescission message, Congress may approve more or less than the amount requested by the President. In addition, absent a specific request from the President, Congress on its own accord may initiate rescission actions, by cancelling previously appropriated funds in a subsequent law. According to data compiled by the Government Accountability Office (GAO), from FY1974 to FY2006, Presidents requested 1,178 rescissions under the ICA, totaling somewhat over $76 billion. Close to a third of the proposals were approved by Congress, with approximately 40% of the total dollar amount of presidential rescission requests ($25 billion) enacted by Congress. The sum of rescissions requested by the President and subsequently enacted exceeded $1 billion in only four of the 30-plus years (FY1981, FY1982, FY1992 and FY1994). During this period Congress initiated 1,610 rescission actions amounting to $143.5 billion, over five times the total of presidentially requested rescission subsequently enacted, reflecting a trend toward an increasing number of rescissions being initiated by Congress. The Line Item Veto Act of 1996 (P.L. 93-344), in effect for less than eighteen months before being overturned by the Supreme Court in 1998, gave the President enhanced rescission authority by reversing the burden of action regarding rescission proposals; cancellations of the President became permanent unless disapproved by Congress (ultimately requiring rejection by a 2/3 majority in both chambers). During this time, the President also *
This is an edited, excerpted and augmented edition of a CRS Report for Congress publication, Order Code RL33869, dated February 7, 2007.
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had authority to cancel new items of direct spending and certain targeted tax benefits as well as items of discretionary spending. Figures from the Congressional Budget Office indicate that the 82 cancellations made by President Clinton in FY1998 (including those overturned) totaled some $355 million, with a projected five-year savings just under $1 billion. President Clinton's use of the short- lived enhanced rescission authority thus was not notably different from the prior annual record of presidential rescissions under the ICA framework. During his first six years in office, President George W. Bush sent no formal ICA rescission requests to Congress, but some controversy developed over his use of alternative means to propose spending reductions. President Bush, while evidently reluctant to use existing rescission authority contained in the ICA, has called repeatedly for enactment of a measure that would give the President greater authority to reject items of spending. Such a bill passed the House in the 109th Congress and was reported in the Senate. A contentious issue is whether such a measure might give preference to presidential spending priorities over congressional spending priorities, arguably affecting the legislative power of the purse.
INTRODUCTION The federal budget process involves both Congress and the executive branch. The Constitution provides in Article I that "no money shall be drawn from the Treasury but in consequence of appropriations made by law... ." Article II stipulates that the President "shall take care that the laws be faithfully executed." The practice of impoundment reflects this sharing of powers between the branches in the implementation of the federal budget. The term "impoundment" refers to executive actions to withhold or delay the spending of funds provided in law. The term "rescission" denotes one type of impoundment, that involving permanent cancellation of the funds. While instances of presidential impoundment date back to the early 19th century, Presidents usually sought accommodation rather than confrontation with Congress.1 This changed during the Nixon Administration (1969-1974), when impoundment of funds developed into a major conflict, eventually involving the courts as well as Congress and the President.2 This report begins by reviewing the framework for handling rescissions established by the Impoundment Control Act of 1974 (ICA, 88 Stat. 332) and by amendments to it in 1987 (101 Stat. 786). A section with review and analysis of data on rescission requests and outcomes pursuant to the 1974 law follows, including comparisons among the respective Administrations. Attention then turns to actions which took place during the brief period that the Line Item Veto Act of 1996 (LIVA, P.L 104-130, 110 Stat. 1200) was in force. During his first six years as President, George W. Bush sent no formal ICA rescission requests to Congress, but some controversy developed over his use of "cancellation statements" proposing spending reductions. The final section of the chapter provides some concluding observations.
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IMPOUNDMENT CONTROL ACT OF 1974 The Impoundment Control Act (ICA) was included as Title X of the Congressional Budget and Impoundment Control Act of 1974, signed into law on June 12, 1974 (88 Stat. 332). The act established two categories of impoundments: deferrals, or temporary delays in funding availability; and rescissions, or permanent cancellation of the designated budget authority. The ICA also established new reporting requirements that remain in effect.3 The 1974 law required the President to inform Congress of all proposed rescissions and deferrals and to submit specified information regarding each such action in a special message. The President may combine several rescission requests in a single impoundment message. Section 1014 of the 1974 law also stipulated that the President transmit to Congress each month a cumulative report on the status of impoundment actions. In 1975, various of these reporting duties were transferred from the President to the Director of the Office of Management and Budget (OMB) via Executive Order 11845.4 The ICA also required the Comptroller General of the General Accounting Office (GAO, now the Government Accountability Office), to oversee executive compliance with the law and report to Congress if the President fails to report an impoundment or improperly classifies an action. Both messages from the President and communications from the Comptroller General are published in the Federal Register and subsequently printed as House documents.5 The act further stipulated different procedures for congressional review and control of the two types of impoundment. With a rescission, the funds must be made available for obligation unless both Houses of Congress take action to approve of the rescission request within 45 days of "continuous session."6 Recesses of more than three days are not counted. In practice, this usually means that funds proposed for rescission not approved by Congress become available for obligation after about 60 calendar days, although the period can extend to 75 days or longer.7 The funds may be withheld from obligation until the 45-day period elapses or Congress disapproves the rescission. Congress may alter the amount proposed for rescission by the President, either increasing or decreasing it, as well as approving or disapproving the rescission request in toto. Section 1017 of the ICA establishes expedited procedures for congressional action on "any rescission bill introduced with respect to a special message" submitted by the President. In the fall of 1987, as a component of legislation to raise the limit on the public debt (P.L. 100-119) that also included changes in the Gramm-Rudman-Hollings Act, Congress enacted several other budget process reforms as well. Section 206 effectively eliminated presidential deferrals for policy reasons.8 Section 207 involved the use of rescission authority. It provides a statutory prohibition against the practice, sometimes used by Presidents when Congress failed to act on a rescission proposal within the 45-day period, of resubmitting a new rescission proposal covering identical or very similar matter. By using such resubmissions repeatedly, the President might continue to tie up the funds even though Congress, by its inaction, had already rejected virtually the same proposal. The legislative history of the 1974 act suggests that prohibiting this practice of seriatim rescission proposals may be consistent with the original intent of Congress. The prohibition on seriatim rescissions in Section 207 applies for the duration of the appropriation, so that it may remain in effect for two or more fiscal years.9
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RESCISSION ACTIONS SINCE 197410 The Impoundment Control Act has been in effect for over 30 years. According to an assessment of congressional power over impoundments since 1974, coauthored by a former director of the Congressional Budget Office (CBO), "Although the courts did much to curb presidential impoundments, through Title X of the new Budget Act, Congress also helped itself to recapture its influence over the impoundment of funds."11 In the first few years following enactment of the 1974 law, Congress approved presidential requests in a number of separate rescission bills. Subsequently, Congress tended to act upon rescission messages from the President in supplemental and regular appropriations measures, rather than in individual rescission bills. Under the ICA, unless Congress takes action to approve of a rescission request from the President within the 45-day period, the funds must be released. In practice, however, congressional action on rescission requests has often occurred after the expiration of the 45-day review period, so that funds are formally available for obligation for some time before being permanently rescinded. As noted previously, Congress may approve more or less than the amount requested by the President. In addition, absent a specific request from the President, Congress of its own accord may initiate rescission actions, by cancelling previously appropriated funds in a subsequent law. Such factors can create ambiguities in interpreting data on rescissions proposed by the President and congressional action on them. For example, are funds originally proposed for rescission in a special message, but which again become available for obligation before Congress permanently rescinds them, to be considered as "congressional approval of a President's request" or as a "rescission initiated by Congress"? Table 1 provides data on rescissions from FY1974 through FY2005 as compiled by GAO. According to GAO's methodology, eventual congressional action on a rescission proposed by the President is generally considered as "approval of a President's request" even if the 45-day period has elapsed.12 Data in Table 2 reflect the outcome of rescission requests of the Presidents since 1974, providing percentages of their respective requests approved by Congress, both in relation to total dollars requested for rescission and to the number of separate proposals, by year and by Administration. In the early months under the new framework, the number of presidentially proposed rescissions increased. In particular, President Ford attempted to rescind funding that Congress had added to the President's budget, mainly involving domestic social programs, but the effort met with limited success. As characterized by Louis Fisher, "Instead of performing as a restriction on Presidential power, it [the new law] was interpreted by the [Ford] Administration as a new source of authority for withholding funds... . Rescission proposals came up by the bushel; wholesale they were rejected.”13 As indicated in Table 2, some 34% of President Ford's rescission proposals were accepted by Congress. In terms of the percentage of the total dollar amount requested during the Administration and approved by Congress, President Ford had less overall success (16%) than any of his successors.
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Table 1. Rescissions of Appropriated Funds, FY1974-FY2005 Fiscal Year
Number Proposed by the President
Total Amount Proposed by President for Rescission
Number Approved by Congress
1974 1975 1976 1977 1978 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 Total 19742005 Average per FY
2 87 50 20 12 11 59 133 32 21 9 245 83 73 0 6 11 30 128 7 65 29 24 10 25 3 3 0 0 0 0 0 1,178
$495,635,000 $2,722,000,000 $3,582,000,000 $1,926,930,000 $1,290,100,000 $908,700,000 $1,618,100,000 $15,361,900,000 $7,907,400,000 $1,569,000,000 $636,400,000 $1,856,087,000 $10,126,900,000 $5,835,800,000 $0 $143,100,000 $554,258,000 $4,859,251,000 $7,879,473,690 $356,000,000 $3,172,180,000 $1,199,824,000 $1,425,900,000 $407,111,000 $25,260,000 $35,040,000 $128,000,000 $0 $0 $0 $0 $0 $76,022,349,690
37
$2,375,698,428
Number Initiated by Congress
Total Amount of Rescissions Initiated by Congress
0 38 7 9 5 9 34 101 5 0 3 98 4 2 0 1 0 8 26 4 45 25 8 6 21 2 0 0 0 0 0 0 461
Total Amount of Presidential Requests Approved by Congress $0 $386,295,370 $148,331,000 $813,690,000 $518,655,000 $723,609,000 $777,696,446 $10,880,935,550 $4,365,486,000 $0 $55,375,000 $173,699,000 $143,210,000 $36,000,000 $0 $2,053,000 $0 $286,419,000 $2,067,546,000 $206,250,000 $1,293,478,548 $845,388,805 $963,400,000 $285,111,000 $17,276,000 $16,800,000 $0 $0 $0 $0 $0 $0 $25,006,704,719
3 1 0 3 4 1 33 43 5 11 7 12 7 52 61 11 71 26 131 74 81 248 104 96 43 105 61 67 76 47 49 77 1,610
$1,400,412,000 $4,999,704 $0 $172,722,943 $67,164,000 $47,500,000 $3,238,206,100 $3,736,490,600 $48,432,,000 $310,605,000 $2,188,689,000 $5,458,621,000 $5,409,410,000 $12,359,390,875 $3,888,663,000 $325,913,000 $2,304,986,000 $1,420,467,000 $22,526,953,054 $2,205,336,643 $2,374,416,284 $18,868,380,121 $4,974,852,131 $7,381,253,000 $4,180,814,234 $5,081,426,930 $3,757,774,500 $5,148,137,497 $4,621,092,342 $3,123,436,524 $10,515,464,056 $6,351,133,468 $143,493,143,006
14
$78,145,922
50
$4,484,160,719
Source: Government Accountability Office, Updated Rescission Statistics, Fiscal Years 1974-2005, GAO Report B-306473, November 4, 2005.
In contrast to the record in the Ford Administration, President Carter requested far fewer rescissions, but enjoyed much greater success in gaining congressional approval. During the Carter Administration, the same political party (Democrats) controlled both Houses of
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Congress along with the White House. Allen Schick has suggested that given the common party identity, President Carter was "reluctant to propose rescissions, and Congress [was] reluctant to disapprove those proposed." Some 90% of the rescissions proposed by President Carter involved defense programs, including the cancellation of the B-1 bomber.14 The Administration of President George W. Bush ( "Bush In provides a special case with respect to the record of rescissions since 1974. The Republican Party maintained a majority in the House for the first six years of this Administration, and likewise in the Senate for over four years, but President Bush submitted no rescission requests to Congress. Although the figures of zero are duly entered in the accompanying Tables 1 and 2, comparisons in this section generally refer to the Ford through Clinton administrations. Developments during the "Bush II" Administration are addressed separately, below. The decline in rescission requests during the Carter Administration proved only temporary. During his first year in office President Reagan submitted more rescission proposals (133) than had President Carter during his entire administration. The largest number of rescission requests in any year (245 in 1985) occurred during the Reagan Administration, as did the greatest amount in terms of total dollars involved (more than $15 billion in 1981). Somewhat coincidentally, President Reagan saw the same percentage acceptance overall of his rescission proposals as the total dollar value — 36% (see Table 2). While President Reagan' s rescission requests focused almost exclusively on domestic programs, most of the Reagan proposals reflected program cuts rather than targeted terminations via rescissions as during the Nixon Administration. The aggregate percentage approval figure of slightly over a third for the Reagan Administration's requests masks substantial differences from year to year, however. As one assessment concluded, Although President Reagan was, nevertheless, reasonably successful in using this [rescission] device in fiscal years 1981-1982, obtaining congressional approval for almost 70 percent of the dollar value of his requested rescissions, the tool was essentially useless to the president in fiscal years 1983-87, when Congress approved less than 2 percent of the value of his rescission requests.15
Table 2. Rescissions Requested by the President and Approved by Congress, 1974-2005 Fiscal Year/ Administration
Number of Rescissions Requested by President
1974 1975 1976 1977 1978 1979 1980 1981
2 87 50 20 12 11 59 133
Total Dollar Amount of Rescissions Requested by the President $495,635,000 $2,722,000,000 $3,582,000,000 $1,926,930,000 $1,290,100,000 $908,700,000 $1,618,100,000 $15,361,900,000
Percent of President's Proposals Accepted by Congress 0% 44% 14% 45% 42% 82% 58% 76%
Percent of Total $ Amount Requested Approved by Congress 0% 14% 4.1% 42% 40% 80% 48% 71%
Rescission Actions Since 1974: Review and Assessment of the Record 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 Ford (FY1974FY1977) Carter (FY1977FY1981) Reagan (FY1981FY1989) G.H.W. Bush (FY1989- FY1993) Clinton (FY1993FY2001) G.W. Bush (FY2001FY2005) Average per FY, 1974-2005
32 21 9 245 83 73 0 6 11 30 128 7 65 29 24 10 25 3 3 0 0 0 0 0 152
$7,907,400,000 $1,569,000,000 $636,400,000 $1,856,087,000 $10,126,900,000 $5,835,800,000 $0 $143,100,000 $554,258,000 $4,859,251,000 $7,879,473,690 $356,000,000 $3,172,180,000 $1,199,824,000 $1,425,900,000 $407,111,000 $25,260,000 $35,040,000 $128,000,000 $0 $0 $0 $0 $0 $7,935,013,000
16% 0 33% 40% 5% 3% 0 17% 0 27% 20% 57% 69% 86% 33% 60% 67% 68% 0 0 0 0 0 0 34%
55% 0 9% 19% 1% 1% 0 1% 0 6% 26% 58% 41% 71% 68% 70% 48% 48% 0 0 0 0 0 0 16%
122
$5,750,816,000
56%
44%
604
$43,436,587,000 36%
36%
169
$13,292,982,690 20%
18%
166
$6,749,315,000
67%
54%
0
0
0
0
38
$2,452,333,861
39%
33%
105
Source: Government Accountability Office, 2005.
The absence of any rescission requests in FY1988, for the first time since enactment of the ICA, reflected a special situation. In November of 1987 a compromise agreement was announced, resulting from the "Budget Summit" between the White House and Congress. The summit deal specified two-year limits on discretionary spending for domestic programs, international affairs, and defense. Provisions of the agreement were implemented as a part of an omnibus appropriations measure (P.L. 100-202, 101 Stat.1329-1) and a reconciliation bill
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(P.L. 100-203, 101 Stat. 1330). Apparently, President Reagan decided not to submit formal rescission requests for fiscal 1988, which might have been perceived in Congress as violating the spirit if not the letter of the agreement. He did, however, send a message to Congress identifying "wasteful items earmarked in the FY1988 full-year continuing resolution," with a transmittal letter stating the following: Accordingly, I am informally asking that the Congress review these projects, appropriations, and other provisions line by line and either rescind or repeal them as soon as possible. I reserve the option of transmitting at a later date either formal rescission proposals or language that would make the funds available for more worthwhile purposes, for any or all of these items.16
President Reagan refrained from using the rescission mechanism only temporarily. Before he left office, in January of 1989, the President transmitted a package of six new rescission proposals affecting FY1989.17 The Administration of George H.W. Bush had an approval rating for rescission requests considerably below that for President Reagan, and about the same overall as that of President Ford, with 20% of the total dollars requested approved, and 18% of the total proposals accepted. During the presidential election year of 1992, however, the use of rescissions became a controversial and highly partisan political issue to an extent not seen since the conflicts of the Nixon Administration.18 During the first four months of calendar year 1992, President Bush requested 128 rescissions, totaling almost $7.9 billion, while reportedly attempting to portray the Democratic-Party-controlled Congress as more interested in securing domestic "pork" projects for their constituents than in reducing the budget deficit. Over $7 billion of these proposed rescissions affected the Defense Department, mainly for weapons programs that the Administration wanted to terminate or items that Congress added to earlier defense budgets.19 Many of the nondefense rescissions were for small earmarked projects, added by Congress. In response to the four packages of rescissions requested by President Bush in 1992, the House and Senate Appropriations Committees devised their own alternative packages. A conference version with an $8.2 billion package of rescissions was signed into law on June 4, 1992 (P.L. 102-298). Although the conference agreement contained over $7 billion in defense funds, only about $1.7 billion of that total came from programs that the Administration had wanted to rescind. In toto, the law approved less than $2.1 billion of the rescissions requested by President Bush, but added more than $6 billion in congressionally initiated cuts.20 As indicated in Table 2, the Clinton Administration ranked at the top of the list of Presidents since 1974 with respect to the percentage of rescission proposals accepted (67%) and percentage of the total dollar amounts requested that were approved by Congress (54%). During his first two years (1993-1994) the Democratic Party controlled both houses of Congress as well as the White House, while in the remainder of his term, Republicans controlled the House and Senate. Yet President Clinton achieved his greatest success rate with rescissions, with respect to percentage of total dollar amount requested that was ultimately rescinded, in FY1995, when Congress was controlled by the opposition party.
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Table 3. Summary of Enacted Rescissions, 1974-2005 Fiscal Year
Amount Requested by Amount of Enacted President, Enacted Rescissions, Initiated By Congress
1974 1975 1976 1977 1978 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 Total
$0 386,295,370 148,331,000 813,690,999 518,655,000 723,609,000 777,696,446 10,880,935,550 4,365,486,000 0 55,375,000 173,699,000 143,210,000 36,000,000 0 2,053,000 0 286,419,000 2,067,546,000 206,250,000 1,293,478,548 845,388,805 963,400,000 $285,111,000 $17,276,000 $16,800,000 $0 $0 $0 $0 $0 $0 $25,006,704,719
$1,400,412,000 4,999,704 0 172,722,943 67,164,000 47,500,000 3,238,206,100 3,736,490,600 48,432,000 310,605,000 2,188,689,000 5.458,621,000 5,409,410,000 12,359,390,875 3,888,663,000 325,913,000 2,304,986,000 1,420,467,000 22,526,953,054 2,205,336,643 2,374,416,284 18,868,380,121 4,974,852,131 $7,381,253,000 $4,180,814,234 $5,081,426,930 $3,757,774,500 $5,148,137,497 $4,621,092,342 $3,123,436,524 $10,515,464,056 $6,351,133,468 $143,493,143,006
Total Dollar Amount % of Total of Budget Authority Enacted, Rescinded Requested by President $1,400,412,000 0% 391,295,074 1.3% 148,331,000 0% 986,412,943 82.5% 585,819,000 88.5% 771,109,000 93.8% 4,015,902,546 19.4% 14,617,426,150 74.4% 4,413,918,000 98.8% 310,605,000 0% 2,224,064,000 1.6% 5,632,320,000 3% 5,552,620,000 2.6% 12,395,390,876 0.3% 3,888,993,000 0% 327,966,000 0.6% 2,304,986,000 0% 1,706,886,000 16.8% 24,594,499,054 8.4% 2,411,586,643 8.6% 3,687,894,832 35.6% 19,713,768,926 4.3% 5,938,252,131 16.2% $7,666,364,000 3.7% $4,198,090,234 0.4% $5,098,226,930 0.3% $3,757,774,500 0% $5,148,137,479 0% $4,621,092,342 0% $3,123,436,524 0% $10,515,464,056 0% $6,351,133,468 0% $168,499,847,523
Source: Government Accountability Office, 2005.
As reflected in columns on the right side of Table 2, President Clinton submitted relatively fewer rescission requests per year than did his predecessors. In seven of his eight years in office, the number of rescissions requested by President Clinton was below the 19742005 average of 38 per year. Further, the ranking of the Administrations by average number of rescissions requested per year (to adjust for terms ranging from roughly two and a half to
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eight years), places President Clinton (annual average of 21 rescissions) only above George W. Bush (with zero). President Reagan not only submitted the most rescissions in toto (604), but was also number one with respect to a yearly average (76 rescission requests), followed by President Ford (61), President George H. W. Bush (42), and President Carter (31). Table 3 presents data on the total dollar amount of all enacted rescissions, and of the amounts, respectively, proposed by the President and initiated by Congress. During the Ford Administration, virtually all rescissions were congressionally initiated. In contrast, during the first three years President Carter was in office, a preponderance of enacted rescissions came from presidential messages (FY1977, 82.5%; FY1978, 88.5%; and FY1979, nearly 94%). Rescissions requested by President Reagan likewise predominated during the first two years of his term; in FY1981, over 74% of the total amount rescinded came from presidential proposals, and in FY1982, nearly 99%. The variations from year to year within administrations, as compared with the record of the respective Presidents overall, constitute a noteworthy feature of the data in Tables 1 and 2. Both the number and dollar amount of rescission requests submitted by the President have fluctuated widely in the 30-plus years of experience under the Impoundment Control Act. While President Clinton had the most success during a single year — 86% of rescission proposals approved by Congress in 1995 — none of his requests were approved in 2000. Reflecting on rescissions under the ICA from the perspective of the mid-1990s, Allen Schick concluded, Rescissions invite conflict between the President and Congress. Every one is a presidential demand that Congress cancel resources it had previously appropriated. By implication, rescissions tell Congress that it erred the first time around and that it wasted government funds. This is not a message that appeals to legislators, especially when it comes from a president who has different budget priorities.21
The experience during the 1992 election year provided a prelude to a very significant development in rescissions since 1974, the increase in number of congressionally initiated rescissions. By the end of FY1992, Presidents had proposed over 1,000 rescissions under the ICA, with Congress approving about a third of the Presidential requests, along with over 300 congressionally initiated rescissions.22 During the period from 1974-1992, the total amount rescinded came to nearly $107.7 billion, of which over 80% came from congressionally initiated rescissions. In 1993 testimony, Milton Socolar, from the GAO Office of General Counsel, called attention to this development: The data suggest an evolution in the use of rescissions as a budgetary tool... . (T)he share of total enacted rescissions originally proposed by the president has fallen and the share originating in the Congress has increased... . As the Congress has come to embrace an equivalent or greater amount of reductions than proposed by presidents, the debate has shifted from deciding whether to cut to deciding where to cut [emphasis in original] 23
According to Mr. Socolar, however, these enacted rescissions often had no effect in reducing total spending if an equivalent amount of budget authority was added to another program, thereby reflecting a shift in priorities rather than a reduction in total spending.
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The proportion of enacted rescissions initiated by Congress rather than by presidential request has continued to expand (see Table 3). The share of total dollars rescinded originating with Congress exceeded 91% in FY1992 and FY1993, and by FY1997 and FY1998, over 99%. Since FY1982, the percentage of total rescissions enacted included in presidential messages reached double digit figures in only three years: almost 17% in FY1991, nearly 36% in FY1994, and 16% in FY1996. Since FY2000, all rescissions enacted have been congressionally initiated. President George W. Bush has submitted no rescission requests to Congress. One factor that may have contributed to the growth of rescissions initiated by Congress relates to the limits on discretionary spending dating to the Budget Enforcement Act (BEA) of 1990.24 As noted previously, Congress came to include rescission provisions in regular or supplemental appropriations measures. An appropriations measure could include rescissions of previously appropriated funds in order to accommodate additional monies for other purposes. The rescission mechanism on occasion might have proved useful in efforts to avoid breaching a particular spending cap and possibly triggering across-the-board cuts.
DEVELOPMENTS IN THE CLINTON AND GEORGE W. BUSH ADMINISTRATIONS In the last decade, other presidential actions relevant to the review of rescissions have occurred. For a brief period President Clinton had new authority to rescind funds under the Line Item Veto Act of 1996. President George W. Bush has refrained from requesting rescissions under the ICA, but has issued presidential statements calling for "cancellation" of certain funding. President Bush also has supported amending the ICA to provide for expedited rescissions.
Line Item Veto Act (LIVA) of 1996 The Line Item Veto Act of 1996 amended the ICA to give the President "enhanced rescission authority" to cancel certain items in appropriations and entitlement measures and also certain narrowly applicable tax breaks. The act authorized the President to cancel in whole any dollar amount of discretionary budget authority (appropriations), any item of new direct spending (entitlement), or limited tax benefits with specified characteristics, contained in a bill otherwise signed into law. The cancellation was to take effect upon receipt in the House and Senate of a special notification message. "Cancellation" in this context meant to prevent from having legal force; in other words, provisions canceled never were to become effective unless Congress reversed the action of the President by enacting a "disapproval bill." The President was only to exercise the cancellation authority if he determined (1) that such cancellation would reduce the federal budget deficit, and (2) it would not impair essential government functions or harm the national interest; and (3) he notified the Congress in a special message of any such cancellation within five calendar days after enactment of the law providing such amount, item, or benefit. The act provided 30 days for the expedited congressional consideration of disapproval bills to reverse the cancellations contained in the
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special messages received from the President. Detailed provisions for expedited consideration of the disapproval bill in the House and Senate were outlined. Since the President would presumably veto the disapproval bill, a 2/3 majority in both the House and Senate ultimately would be necessary to override and disapprove of cancellations. The law became effective on January 1, 1997, but was subsequently overturned by the Supreme Court on June 25, 1998 (Clinton v. New York City).25
LIVA Cancellations by President Clinton On August 11, 1997, President Clinton exercised his new veto authority for the first time by transmitting two special messages to Congress, reporting his cancellation of two limited tax benefit provisions in the Taxpayer Relief Act of 1997 (P.L. 105-34, 111 Stat. 788) and one item of direct spending in the Balanced Budget Act of 1997 (P.L. 105-33, 111 Stat. 251).26 On October 6, 1997, President Clinton exercised the new authority to veto items in appropriations bills by cancelling 38 projects contained in the FY1998 Military Construction Appropriations Act (P.L. 105-45, 111 Stat. 1142).27 On October 14, 1997, President Clinton vetoed 14 projects in the Department of Defense Appropriations.28 On October 16, 1997, he used the cancellation authority on a provision in the Treasury and General Government Appropriations relating to pension systems for federal employees.29 On October 17, 1997, the President applied his veto to eight more projects, this time in the Energy and Water Appropriations Act.30 On November 1, 1997, President Clinton exercised his line item veto authority in two appropriations acts, canceling seven projects in the VA/HUD measure and three projects in the Transportation Act. On November 20, 1997, the President canceled two projects from Interior and five from the Agriculture Appropriations Act. On December 2, 1997, President Clinton exercised his line item veto authority one last time by canceling a project in the Commerce-Justice-State appropriations measure. All together in FY1997, President Clinton issued 11 special messages containing 82 cancellations under the LIVA. The 38 cancellations in the Military Construction Appropriations bill, however, were rejected with the congressional override of the presidential veto of the bill disapproving the cancellations.31 The cancellation of the provision in the Treasury bill providing for an open season for federal employees to switch pension plans was held impermissible under the law, and a District Court judge ordered its reinstatement early in 1998.32 So slightly more than half of the original cancellations (43 of 82) remained in effect when the Supreme Court overturned the LIVA in June 1998. According to figures provided by the Congressional Budget Office (CBO), President Clinton's cancellations in FY1998 under the LIVA amounted to about $355 million out of a total budget of $1.7 trillion (less than 0 02%). Of this total, about $30 million came from the 39 cancellations overturned, leaving a net budgetary effect for FY1998 of $325 million. CBO estimated total savings over a five-year period from the FY1998 cancellations as less that $600 million.33 Table 4 presents data for FY1998 both from rescission requests under the Impoundment Control Act and from cancellation actions under the Line Item Veto Act. The figures are not entirely comparable, since cancellations under the LIVA included not only actions affecting
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items in appropriations acts, but also items of new direct spending and targeted tax benefit provisions. The combined totals are of course larger than those for the ICA or LIVA alone. Nonetheless, if the bottom line totals in Table 4 were substituted for the ICAonly data for FY1998 in Tables 1 and 2, the most notable feature, arguably, is that the larger combined totals only marginally impact the broader picture of the data over the three decades. The number of rescissions/cancellations, total dollar amounts from the President, and total dollar amounts accepted by Congress would not become anywhere near the highest during the period. The percentage of the President's proposals accepted by Congress actually drops slightly when the LIVA cancellations are included (from 67% to 60%). Only the percentage of the combined total dollar amount called for by the President and accepted by Congress would set a new high of 90%, as compared with 80% for President Carter in FY1979, the prior record. With respect to comparing figures across administrations (see bottom of Table 2), the addition of the LIVA data would leave the percentage of President Clinton's proposals accepted by Congress unchanged, but increase the percentage of total dollar amount requested and approved by Congress to 56%. Table 4. Rescission Requests and Cancellation Actions by the President and Approval by Congress, FY1998 Authority for Rescission/ Cancellation
Number of Rescissions/ Cancellations
Total Dollar Amounts of President’s Requests/ Cancellations
Impoundment
25
Control Act Line Item Veto Act of 1996 Total
Percent of President’s Proposals Accepted by Congress
$25,260,000
Total Dollar Amounts of President’s Proposals Accepted by Congress $17,276,000
67%
Percent of Total $ Amount Requested Approved by Congress 48%
82
$355,000,000
$325,000,000
52%
92%
107
$380,260,000
$342,276,000
60%
90%
Source: Government Accountability Office, 2005; Congressional Budget Office, 1998.
Developments in the George W. Bush Administration As noted previously, President Bush submitted no formal rescission requests under the ICA during the first six years of his Administration. Some controversy occurred, however, regarding presidential statements calling for "cancellation" of certain funds. On October 28, 2005, President Bush forwarded to Congress a package of $2.3 billion in rescissions. As explained in an OMB press release, "Unused balances in 55 Federal programs would be rescinded in keeping with the President's pledge to reduce unnecessary spending elsewhere in the budget as hurricane recovery efforts continue."34 In a press briefing, OMB Director Joshua Bolten further explained:
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Congress eventually approved $400 million of the proposed $2.3 billion in cancellations forwarded by the President.36 According to OMB staff, the October package constituted a proposal for cancellations, not rescission requests under the ICA, and agencies were told not to withhold funds in anticipation of an impending rescission. The Comptroller General, however, deemed it necessary to contact each agency affected by the President's proposal, since GAO has responsibility under the ICA to monitor possible impoundments of budget authority. In a letter to then OMB Director Bolten, the Comptroller General "identified 12 instances where agencies withheld budget authority from obligation in direct response to the October 28 proposal totaling over $470 million," with an attachment table detailing each case in point. In what arguably amounted to an indirect admonishment of OMB, the letter closed with this advice: In the future, when the President chooses to propose cancellations of budget authority rather than rescissions of budget authority pursuant to the procedures specified in the Impoundment Control Act, your office should ensure that agencies appreciate the distinction and do not withhold budget authority from obligation in anticipation of a possible rescission. Agencies that withhold budget authority in this manner violate the Impoundment Control Act.37
In an apparent effort to avoid any further confusion, an OMB memorandum went out to all federal agencies the following month, emphasizing the important distinction between proposed cancellations like those contained in the FY2007 Budget and rescission requests identified in special messages from the President pursuant to the ICA. Under the ICA, funds requested to be rescinded may be withheld for 45 days of continuous congressional session. In contrast, cancellations such as those in the FY2007 budget "are proposals subject to the normal legislative process" and should not be withheld "pending congressional action on the President's proposed legislation."38 The revised version of OMB Circular A-11, "Preparation, Submission, and Execution of the Budget," issued on June 30, 2006, reiterated the differences between a rescission under the ICA and cancellation proposals by the President to reduce budgetary resources, with the latter such amounts not to be withheld from obligation and "subject to the normal apportionment instructions."39 Meanwhile, GAO found that agencies were not improperly withholding funds proposed for cancellation in the President's FY2007 budget submission. The Chairman and Ranking Minority Member of the Senate Appropriations Committee requested such an assessment from GAO in March 2006. In a letter sent in early August 2006, the Comptroller General reported that GAO identified proposed cancellations in the FY2007 Budget affecting 40 programs. According to GAO, in only one instance were funds "mistakenly" withheld by an agency, and the funds were released following GAO's inquiry about them.40 The George W. Bush Administration has offered no public explanation as to why the President chooses to propose cancellations rather than formal rescissions under the ICA. As noted already, an apparent advantage of the rescission request option is that under the ICA,
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the funds identified in a special message from the President typically may be withheld from obligation for a period of about two months. President Bush, while evidently reluctant to use existing rescission authority provided in the ICA, has repeatedly called for enactment of a measure that would give the President greater authority to reject items of spending and that also would pass constitutional muster.41 On March 6, 2006, President Bush sent a draft bill titled the "Legislative Line Item Veto Act of 2006" to Congress,42 and the measure was introduced the next day as H.R. 4890 and S. 2381 (109th Congress). Title notwithstanding, the bills would have amended the Impoundment Control Act of 1974 (ICA) to incorporate a typical expedited rescission framework, intended through procedural provisions to require an up-or-down vote on presidential requests to cancel certain previously enacted spending or tax provisions. In testifying on H.R. 4890, Edward Lorenzen, Policy Director of the Concord Coalition, stated, "President Bush has never used his authority under current law to submit rescissions of earmarks or other spending he considers low priority, so it is unclear whether granting him this additional authority would have much of an impact at all."43 The House passed H.R. 4890 by vote of 247-172 on June 22, 2006,44 but floor action on a companion measure did not occur in the Senate before the 109th Congress adjourned.45 On January 24, 2007, the Senate failed to invoke cloture in order to vote on similar expedited rescission provisions, offered by Senator Judd Gregg as a floor amendment to H.R. 2, the Fair Minimum Wage Act of 2007.46
SOME CONCLUDING OBSERVATIONS According to GAO data, from FY1974 to FY2006, Presidents requested 1,178 rescissions under the ICA, totaling somewhat over $76 billion. Close to a third of the proposals were approved by Congress, with approximately 40% of the total dollar amount of presidential rescission requests ($25 billion) enacted by Congress. The sum of rescissions requested by the President and subsequently enacted exceeded $1 billion in only four of the 30-plus years since the ICA was enacted (FY1981, FY1982, FY1992 and FY1994). During the same period Congress initiated 1,610 rescission actions amounting to $143.5 billion, over five times the total dollar amount of presidentially requested rescissions enacted. The trend toward an increasing number of rescissions being initiated by Congress has already been noted. Whether considering rescissions requested by the President, presidential rescission proposals enacted by Congress, and/or rescissions initiated directly in Congress, from FY1974 to FY2006, the totals appear modest compared with annual budget outlays topping $2.5 trillion in FY2006 and federal budget deficits exceeding $300 billion in three of the last four years.47 Acting CBO Director Donald Marron provided this assessment at a 2006 hearing: Presidents have made very little use of the authority to recommend rescissions. From 1976 through 2005, Presidents proposed about $73 billion in rescissions, about one-half of 1 percent of the more than $15 trillion in total discretionary budget authority legislated in those years.48
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Supporters of changing the ICA framework to make it easier for the President's rescission proposals to prevail point to limitations in the current process as contributing to the low number of rescissions in the last 30 years. Under the ICA, there is no requirement that Congress even consider a President's rescission requests. Funds proposed for rescission by the President in a special message must be made available for obligation unless Congress acts to approve the President's requested rescission(s) within 45 days of continuous session. The ICA, moreover, allows the President to request rescissions only of discretionary spending, a portion of the budget which accounts for 38% of annual outlays, while 62% of outlays go to mandatory spending (controlled by law other than appropriations acts, including net interest).49 The record of cancellations during the brief time in FY1997 and FY1998 that the 1996 LIVA was in effect arguably serves to rebut such criticisms of the current ICA process. As discussed above, the LIVA reversed the burden of action regarding rescission proposals; cancellations of the President became permanent unless disapproved by Congress (ultimately requiring rejection by a 2/3 majority in both chambers to override a presidential veto of a disapproval bill). During this period the President also had authority to cancel new items of direct (mandatory) spending and certain targeted tax benefits as well as items of discretionary spending. CBO figures indicate that all the cancellations made by President Clinton in FY1998 (including those overturned) totaled some $355 million, with a projected five-year savings just under $1 billion. When the cancellations disapproved by Congress are excluded, the estimated amount to be saved over five years was less than $600 million.50 The brief experience in the Clinton Administration does not necessarily reflect how enhanced rescission authority might be exercised by other Presidents in other circumstances. Still, "President Clinton's use of the 1996 line-item veto statute is consistent with how little the 1974 law' s rescission system has been used."51 Another concern, in terms of budgetary impact of rescissions under the ICA, is that funds rescinded do not necessarily reduce outlays; monies rescinded may simply allow for increased spending elsewhere. As Acting CBO Director Marron testified in 2006, "Under current practice, rescissions seem to have been used primarily to pay for other spending, rather than to reduce spending overall."52 Some proposals to modify the ICA framework have sought to avoid this outcome. The LIVA provided for a "lockbox" mechanism to ensure that deficit reduction would result from cancellations. In 2006 the Legislative Line Item Veto Act (H.R. 4890, 109th Congress) as passed by the House and Title I of the Stop Over Spending Act (S. 3521, 109th Congress) as reported in the Senate both specified that amounts rescinded would be dedicated only to deficit reduction and not be used as an offset for a spending increase elsewhere.53 Although many observers do not view modifying the ICA framework to give the President expanded rescission authority as an effective means to achieve significant savings or deficit reduction, a number of studies indicate that governors use the stronger item veto mechanism to favor executive priorities over legislative priotities.54 In 1995, during hearings on the Line Item Veto Act, then CBO Director Robert Reischauer testified that, rather than generating much budgetary savings, granting the President item veto or enhanced rescission authority would have a more important impact in giving presidential spending a preference over congressional spending. Presidents could use expanded rescission authority to redirect greater resources to their own spending agendas.55
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A similar perspective on possible effects of proposals such as those to expand the President's rescission authority appeared in testimony by GAO Assistant Comptroller General Harry Havens in 1992. According to Mr. Havens, the most significant impact would likely be in the balance of power between the legislative and executive branches and not in budgetary savings. Various item-veto or rescission proposals "would represent a major shift of power from Congress to the President in an area that was reserved to Congress by the Constitution and which has historically been one of clear legislative primacy."56 The experiences in 1992 with the George H.W. Bush Administration's rescission proposals and the congressional response, as discussed above, arguably prove illustrative regarding the subject of competing spending priorities between the President and Congress. Using the existing ICA framework, President Bush transmitted four special messages proposing 128 rescission and totaling almost $7.9 billion. The House and Senate Appropriations Committees reviewed the President's request, and each chamber reported and passed substitute packages. A conference version containing $8.2 billion was signed into law, containing less than $2.1 billion of the President's proposals but over $6 billion in congressionally initiated cuts. During Senate floor debate on its substitute rescission package in 1992, Senator Robert Byrd, Chairman of the Appropriations Committee, referred to the President's recent reference to the "wasteful spending" of Congress, and stated the following: So to hear the Chief Executive speak on that occasion, to the effect that only Congress is guilty of wasteful spending — and the President singled out some examples of what he considered to be wasteful spending, and the Senate has gone along with some of them, but the President did not say anything about wasteful spending in the executive branch. Let me bring a few examples of wasteful spending to the attention of my colleagues, and to the attention of the American people.57
Senator Byrd then proceeded to describe examples of what he termed "wasteful executive branch spending" included in the Senate substitute, such as a grant from the National Science Foundation to study sexual aggregation of fish in Nicaragua, or from NIH to study the incidence of dental fear in the population.58 Supporters of the existing ICA framework might note that in 1992 the President was able to gain public attention for his proposed rescissions. When Congress crafted an alternative package of rescissions, largely congressionally initiated and saving more than the President's requested rescissions, the spending priorities of Congress ultimately prevailed, arguably upholding the power of the purse. Reviewing the history of impoundments, a law review article in 1974 stated, "Every President from George Washington to Richard Nixon almost certainly has impounded appropriated funds."59 The framework established by the ICA in 1974 has provided the opportunity for greater accountability in reporting of rescissions and for increased congressional oversight and control of impoundment actions. Although budgetary savings realized from rescissions since 1974 appear modest, any budgetary tool that helps restrain spending, even in a small way, may prove useful in a time of large budget deficits.
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APPENDIX: IMPOUNDMENT DATA AND REPORTING REQUIREMENTS Until the 1970s, accurate and systematic data concerning impoundments were often lacking.60 Congress first attempted to facilitate the availability of relevant data by stipulating reporting requirements in the Federal Impoundment and Information Act of 1972.61 However, there was an initial delay in OMB's compliance with the law, and subsequent concerns in Congress about the completeness of the information provided.62 On March 8, 1973, Congress sought to tighten up the requirements by requiring quarterly reports on impoundment actions from OMB.63 The Impoundment Control Act of 1974 established the current reporting requirements. As noted above, the law requires the President to inform Congress of all proposed rescissions and to submit certain information regarding each such action. The President may combine several rescission requests in a single impoundment message. The law also requires the Comptroller General of the Government Accountability Office (GAO) to oversee executive compliance with the law and report to Congress if the President fails to report an impoundment or improperly classifies an action. Both the messages from the President and the communications from the Comptroller General are to be printed in the Federal Register and issued as House documents.64 Section 1014 of the 1974 law also stipulated that the President transmit to Congress each month a cumulative report on the status of impoundment actions.65 In 1975 various of these reporting duties were transferred from the President to the Director of OMB via Executive Order 11845.66 Although President George W. Bush has submitted no rescission requests to Congress, there were two deferral requests from the Administration in FY2001, and the monthly cumulative reports from OMB appeared through September, 2001. There have been no cumulative reports on rescissions and deferrals since June 17, 2002, because there have been no presidential messages. OMB stated in the last report that as of June 1, 2002, no funds were being deferred.67 Therefore, according to OMB, "Pursuant to P.L. 93-344, until such time as the President transmits a special message on Congress on subsequent rescission proposals or deferrals no cumulative reports are required to be transmitted to the Congress."68 For a number of years OMB prepared informal reports at the end of each fiscal year, which provided a convenient resource for compiling aggregate data on rescissions. These year-end reports also proved useful as research reference documents, since the October cumulative report would commence with the new fiscal year and would not capture actions occurring during September, the final month of the previous fiscal year. These reports were apparently discontinued in the 1990s.69 The House Appropriations Committee also has compiled data on rescissions. In interpreting the respective sources, it is necessary to keep in mind that the Appropriations Committee includes in "rescissions approved by Congress" congressionally initiated actions to cancel funds previously appropriated, even in the absence of a rescission request by the President. The approach used by the Appropriations Committee makes sense from the perspective of tracking the status of appropriations law and any amendments thereto. On the other hand, OMB, in reporting rescissions pursuant to the 1974 law, only considers the outcome of rescissions proposed by the President — what was requested by the President and what action was taken by Congress, if any.
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From 1974 until 1992 GAO on occasion informally provided a variety of statistical data on rescissions proposed and enacted pursuant to the ICA. Following the increased level of interest in rescissions, GAO decided in 1992 to regularize the data collection and reporting processes with respect to rescissions. Beginning with a submission dated April 30, 1992, GAO has periodically provided to Congress updated rescission data in a standardized format. One table shows by fiscal year from 1974 to the present the aggregate number and amount of rescissions: proposed by the President, enacted by Congress, and initiated by Congress, with grand totals for each category. A second table indicates by fiscal year from 1974 to the present, by administration, the aggregate number and amount of rescissions proposed and enacted, as well as those congressionally initiated, with grand totals for each category. GAO acknowledged that the 1992 compilation reflected a number of revisions and adjustments to previously submitted historical tables. For example, we have added several rescissions which were not styled as such in the applicable legislation; credited certain rescissions to a different fiscal year than we had previously credited them; and added additional rescissions which our initial search, for various reasons, did not discover.70
In the letter accompanying the tables, GAO noted that should the need for further adjustments be identified, they would be included in future submissions. There was also a discussion of scope and methodology for the compilations by GAO of the historical data on rescissions.71 The most recent submission from GAO covers the period from FY1974 to FY2005.72 Most of the figures presented in this chapter are derived from that 2005 compilation. Since no rescissions were requested in FY2006, discussion sometimes refers to the first six years of the George W. Bush Administration, although the formal GAO update covering FY2006 has not yet appeared.
ENDNOTES 1
For a history of presidential impoundment before 1974, see Louis Fisher, Presidential Spending Power (Princeton, NJ: Princeton University Press, 1975), pp. 147-201; and Ralph S. Abscal and John R. Kramer, "Presidential Impoundment Part I: Historical Genesis and Constitutional Framework," Georgetown Law Journal, vol. 62 (July 1974), pp. 1549-1618. 2 In contrast to previous impoundment actions, President Nixon impounded larger amounts of funds, ignored explicit expressions of intent by Congress that funds be spent, tried to terminate entire programs rather than just selected projects, systematically attempted to withhold funds from programs not included in the President's budget, and asserted formal constitutional power to impound. See James P. Pfiffner, The President, the Budget, and Congress: Impoundment and the 1974 Budget Act (Boulder, CO: Westview Press, 1979), pp. 40-44. 3 See Appendix for further discussion of reporting requirement for presidential impoundment actions and of sources for impoundment data. 4 Specifically, President Gerald Ford conferred upon the OMB Director the functions of transmitting copies of the special rescission and deferral messages to the Comptroller
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General and to the Office of the Federal Register, and also the responsibility of submitting to Congress the monthly cumulative report. U.S. President, 1974-1976 (Ford), Executive Order 11845, "Delegating Certain Reporting Functions to the Director of the Office of Management and Budget," Mar. 24, 1975, Weekly Compilation of Presidential Documents, v. 11, Mar. 31, 1975, p. 304; also see 40 F.R. 13299. 5 For example, see U.S. Congress, House, Rescissions: Message from the President of the United States Transmitting Six New Rescission Proposals Affecting Programs in the Departments of Housing and Urban Development, Interior, Justice, and Labor, Pursuant to 2 U.S.C. 683(a)(1), H. Doc. 101-20, 101" Cong., 1" sess., (Washington: GPO, 1989); and Review of Rescissions, Deferrals and Revised Deferrals: Communication from the Comptroller General of the United States Transmitting a Review of the Seventy-three Rescission Proposals, Three New Deferrals and Three Revised Deferrals Reported in the President's Third Special Message for Fiscal Year 1987, Pursuant to 2 U.S.C. 685, H. Doc. 100-60, 100th Cong., 1" sess., (Washington: GPO, 1987). 6 In contrast, the original provisions of Title X allowed a deferral to continue in effect for the period proposed by the President (not to extend beyond the end of the fiscal year so as to become a de facto rescission), unless either the House or Senate took action to disapprove it. Such procedures, known as a one-house legislative veto, were invalidated by the 1983 Supreme Court decision in INS v. Chadha (462 U.S. 919). City of New Haven v. United States (809 F. 2d 900, D.C. Cir. 1987) held that the deferral authority conveyed to the President in the 1974 law was inseverable from the one-house veto provision. Thus, the invalidation of the legislative veto also invalidated the deferral authority, except for what were considered to be "routine" deferrals, authorized by sources predating the ICA. 7 In the past OMB sometimes expanded the 45-day period during which the funds were unavailable by initiating a deferral prior to formally reporting the rescission to Congress. In one case in 1986, nearly six months elapsed between the effective date of a specific appropriation and the submission of the ICA-required rescission message. See CRS Report RL33365, Line Item Veto: A Constitutional Analysis of Recent Proposals, by Morton Rosenberg, p. 9. 8 Section 206 of P.L. 100-119 served to codify the Appeals Court decision in the New Haven case. The provision in the 1974 law, as amended, now authorizes the President to defer funds only for contingencies, efficiency, or where specifically provided by law. Section 206 also reaffirmed certain provisions of the 1974 law relating to enforcement responsibilities of the Comptroller General, who is empowered to sue the executive for violations of the Impoundment Control Act. 9 See "Joint Explanatory Statement of the Committee of Conference," in U.S. Congress, Increasing the Statutory Limit on the Public Debt, Conference Report to Accompany H.J.Res. 324, H.Rept. 100-313, 100th Cong., Pt sess. (Washington: GPO, 1987), pp. 6768. 10 This section updates and expands upon previous work of the author. See Virginia A. McMurtry, "The Impoundment Control Act of 1974: Restraining or Reviving Presidential Power?" Public Budgeting & Finance, vol. 17, fall 1997, pp. 42-47. 11 Rudolph G. Penner and Alan J. Abramson, Broken Purse Strings: Congressional Budgeting, 1974-88 (Washington: Urban Institute, 1988), p. 19. 12 See Appendix for further discussion of GAO's methodology. 13 Fisher, Presidential Spending Power, pp. 200-201.
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Allen Schick, Congress and Money (Washington: Urban Institute Press, 1980), pp. 405406. Rudolph G. Penner and Alan J Abramson, Broken Purse Strings (Washington: Urban Institute Press, 1988), p. 120. 16 U.S. President, Message Transmitting a Request to Consider the Rescission or Repeal of Spending Projects that were Included in the 1988 Continuing Resolution (P.L. 100-202), March 14, 1988, H. Doc. 100-174, 100th Cong. 2nd sess. (Washington: GPO, 1988), p. 1. 17 U.S. President, Message Transmitting Six New Rescission Proposals Affecting Programs in the Departments of Housing and Urban Development, Interior, Justice, and Labor, Pursuant to 2 U.S.C. 683(a)( 1), Jan. 19, 1989, H. Doc. 101-20, 101" Cong., 1" sess. (Washington: GPO, 1989). 18 See CRS Issue Brief (archived) 1B92077, Rescission of Funds for FY1992: Presidential Proposals and Congressional Actions, Virginia A. McMurtry, Coordinator (available from author). 19 See CRS (archived) Report 92-415, Rescissions of Department of Defense Funds During the Bush Administration, by Stephen Daggett and Paul Potamianos. 20 See U.S. Congress, Rescinding Certain Budget Authority, and for other purposes, conference report to accompany H.R. 4990, 102nd Cong., 2nd sess., H.Rept. 102-530 (Washington: GPO, 1992). 21 Allen Schick, The Federal Budget: Politics, Policy, Process (Washington: The Brookings Institution, 1995), p. 175. 22 See CRS Issue Brief (archived) IB92077, Rescission of Funds for FY1992: Presidential Proposals and Congressional Actions, Virginia A. McMurtry, Coordinator (available from author). 23 Milton Socolar, Use and Impact of Rescission Procedures, GAO Testimony, T-OCG-93-5 (Washington: Mar. 10, 1993), pp. 2-3, 6. 24 The BEA was enacted as Title XIII of the Omnibus Budget Reconciliation Act of 1990 (104 Stat. 1388, 1-630). See "Budget Enforcement Acts of 1990 and 1997," in CRS Report RL30795, General Management Laws: A Compendium, Clinton Brass, Coordinator. 25 further background on the LIVA, see CRS Report RL33635, Item Veto and Expanded Impoundment Proposals: Legislative History and Current Status, by Virginia A. McMurtry. 26 The cancellation messages were published in the Federal Register and also as congressional documents. See Office of Management and Budget "Cancellation Pursuant to the Line Item Veto Act: Taxpayer Relief Act of 1997," Federal Register, vol. 62, no. 155, Aug. 12, 1997, p. 43265; and Message from the President transmitting "A Cancellation of Two Limited Tax Benefits Contained in the Taxpayer Relief Act of 1997, pursuant to Public Law 104-130 Sec. 2(a)," 105th Cong., Pt sess., H.Doc. 105-116 (Washington: GPO, 1997). The Office of the Federal Register, Archives and Records Administration assembled and continues to maintain a site with the "History of Line Item Veto Notices," providing links to all 82 of the cancellation notices as they appeared in the Federal Register, along with other relevant information, available electronically at [http://www.access.gpo.gov/nara/ nara004.html]. 27 See CRS Report 97-210, Appropriations for FY1998: Military Construction, by Mary T. Tyszkiewicz, for further discussion of these cancellations. 15
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See CRS Report 97-205, Appropriations for FY1998: Defense, by Stephen Daggett, for further discussion of these cancellations. 29 See CRS (archived) Report 97-991, President Clinton's Use of the Line Item Veto: Assessing Cancellation No. 97-56, Pertaining to Retirement Systems for Federal Employees, by Virginia A. McMurtry, for further discussion of this cancellation. 30 See CRS Report 97-207, Appropriations for FY1998: Energy and Water Development, by Marc Humphries and Carl E. Behrens, for further discussion of these cancellations. 31 0n November 13, 1997, the President vetoed H.R. 2631, the first disapproval bill to reach his desk under the provisions of the 1996 law. The House voted to override on Feb. 5, 1998 (347-69), and the Senate did likewise on Feb. 25, 1998 (78-20); so the disapproval bill was enacted over the President's veto (P.L. 105-159). 32 U.S. District Court for the District of Columbia, Order by Judge Thomas Hogan regarding Civil Action No 97-2399, Jan. 6, 1998. Judge Hogan' s order found that the President lacked authority under the LIVA to make this cancellation, and so it was "invalid and without legal force and effect." 33 Congressional Budget Office, "The Line Item Veto Act After One Year," CBO Memorandum, April 1998, pp. 12-13. Had the 39 cancellations that were no longer in force as of April 1998 been included, CBO estimated the total five-year savings as just under $1 billion. 34 OMB, "President Bush Requests Rescission and Reallocation Packages," Oct. 28, 2005. Available electronically at [http://www . whitehous e . gov/omb/pubpres s/2005/ factsheet_rescission.pdf]. 35 White House, "Press Briefing by Conference Call with OMB Director Joshua Bolten, "Oct. 28, 2005. Available electronically at [http://www.whitehouse.gov/news/releases/ 2005/10/20051028-9.html]. 36 OMB, "Fiscal Year 2006: Keeping the Commitment to Restrain Spending," Dec. 22, 2005. Available electronically at [[http://www.whitehouse.gov/omb/pubpress/2005/ fact_sheet_restraining _spending_122205.pdf 37 GAO, Comptroller General, "Impoundments Resulting from the President's Proposed Rescissions of October 28, 2005," B-307122, Mar. 2, 2006, p. 2. 38 OMB, Memorandum M-06-10, "Reminder: Treatment of the Cancellation Proposals in the President's FY2007 Budget," Apr. 7, 2006. 39 OMB Circular No. A-11 (2006), Section 112, p. 2. 40 The Maritime Administration had withheld $2 million from a guaranteed loan program. See GAO, Comptroller General, "Status of Funds Proposed for Cancellation in the President's Fiscal Year 2007 Budget," B-308011, Aug. 4, 2006, pp. 1-2. 41 See CRS Report RL33635, Item Veto and Expanded Impoundment Proposals: Legislative History and Current Status, by Virginia A. McMurtry. 42 President's message, along with press briefing and fact sheet available electronically at [http://www.whitehouse.govinewskeleases/2006/03/20060306-5.html]. 43 U.S. Congress, House Committee on the Budget, Line-Item Veto: Perspectives on Applications and Effects, hearing on H.R. 4890, 109th Cong., 2nd sess., May 25, 2006 (Washington: GPO, 2006), pp. 18-19. 44 Line Item Veto Act of 2006," debate and vote in the House, Congressional Record, daily edition, vol. 152, June 22, 2006, pp. H4433-41, H4467-93.
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For further discussion of legislative consideration of H.R. 4890 and related Senate bills in the 109th Congress, see CRS Report RL33635, Item Veto and Expanded Impoundment Proposals: Legislative History and Current Status, by Virginia A. McMurtry. 46 Floor vote was 49-48; 60 votes are needed to invoke cloture. See Congressional Record vol 153, Jan. 24, 2007, p. S 1019. 47 U.S. Treasury Department, Monthly Treasury Statement, October 2006, and OMB, Fiscal Year 2007 Historical Tables (Wshington: GOPO, 2006), p. 26. 48 U.S. Congress, Senate Budget Committee, To Consider S. 2381, A Bill to Amend the Congressional Budget & Impoundment Control Act of 1974 to provide Line Item Rescission Authority, hearing, 109th Cong., 2nd sess., May 2, 2006, p. 2. Available electronically at [http://budget.senate.gov/republican/hearingarchive/testimonies/2006/ 2006-05- 01Marron.pdf]. Note that the CBO total covers FY1976-FY2005, whereas the GAO data cited above encompasses FY1974-FY2005. 49 CRS Report RL32812, The Budget for Fiscal Year 2006, by Philip D. Winters. 50 Ibid. 51 To Consider S. 2381..., p. 3. 52 Ibid. 53 See CRS Report RL33517, Legislative Line Item Veto Act of 2006: Background and Comparison of Versions, by Virginia A. McMurtry. 54 U.S. Congress, House Committee on Rules, Item Veto: State Experience and Its Application to the Federal Situation, Comm Print, 99th Cong., 2nd sess., (Washington: GPO, 1986). 55 Line Item Veto, joint hearings before the House Committee on Government Reform and Oversight and the Senate Committee on Governmental Affairs, 104th Cong., 1" sess. (Washington: GPO, 1995), p. 62. 56 U.S. Congress, House Committee on Rules, Legislative Line-Item Veto Proposals, hearing, 102nd Cong., 2nd sess. (Washington: GPO, 1992), p. 274. 57 Sen. Robert Byrd, "Rescission of Certain Budget Authority," remarks in the Senate, Congressional Record, vol. 138, May 5, 1992, p. 10143. 58 Ibid. 59 Niles Stanton, "History and Practice of Executive Impoundments of Appropriated Funds," Nebraska Law Review, vol. 53, no. 1, 1974, p. 207. 60 For example, the Senate Subcommittee on the Separation of Powers under the late Sen. Sam Ervin in 1968 requested a complete listing of impoundment actions since 1945 from the Bureau of the Budget, but received only a listing of selected examples. See Frank Church, "Impoundment of Appropriated Funds: The Decline of Congressional Control over Executive Discretion," Stanford Law Review, vol. 22, June 1970. p. 1243. 61 This requirement was enacted as an amendment to a measure increasing the public debt ceiling, P.L. 92-599, 86 Stat. 1325. 62 U.S. Congress, Senate Committee on Governmental Affairs, Office of Management and Budget: Evolving Roles and Future Issues, Committee Print., 99th Cong., 2nd sess. (Washington: GPO, 1986), p. 29. 63 P.L. 93-9, 87 Stat. 7. 64 For example, see U.S. Congress, House, Rescissions: Message from the President of the United States Transmitting Six New Rescission Proposals... . Pursuant to 2 U.S.C. 683(a)(1), H. Doc. 101-20, 101" Cong., 1" sess. (Washington, GPO, 1989); and Review of
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Rescissions, Deferrals and Revised Deferrals: Communication from the Comptroller General of the United States Transmitting a Review of the Seventy-three Rescission Proposals, Three New Deferrals and Three Revised Deferrals Reported in the President's Third Special Message for Fiscal Year 1987, Pursuant to 2 U.S.C. 685, H. Doc. 100-60, 100th Cong., 1St sess. (Washington: GPO, 1987). 65 The cumulative reports are published in the Federal Register and issued as House documents. 66 Specifically, President Ford conferred upon the OMB Director the functions of transmitting copies of the special rescission and deferral messages to the Comptroller General and to the Office of the Federal Register, and also the responsibility of submitting to the Congress the monthly cumulative report. U.S. President, 1974-1976 (Ford), Executive Order 11845, "Delegating Certain Reporting Functions to the Director of the Office of Management and Budget," Mar. 24, 1975, Weekly Compilation of Presidential Documents, v. 11, Mar. 31, 1975, p. 304; 40 F.R. 13299. 67 OMB explained that on May 31, 2002, two previously reported FY2002 deferrals were reapportioned, "removing the deferral designations based on a recent analysis that determined that the funds do not meet the definition for deferrals contained in P.L. 93344." See OMB, Report on Rescissions and Deferrals, printed as H. Doc. 107-226, 107th Cong., 211`1 sess., June 17, 2002 (Washington: GPO, 2002), p. 3. 68 Ibid., p.3. 69 The last End-of Year Report contained in the CRS files was dated of Oct. 9, 1996. 70 Letter from Comptroller General to Sen. Robert Byrd, Chairman, Senate Appropriations Committee, Apr. 30, 1998. Reprinted in Congressional Record, vol. 138, May 5, 1992, p. 10145. 71 Ibid., pp. 10145-10148. 72 See GAO, Comptroller General, B-306473, Updated Rescission Statistics, Fiscal Years 1974-2005, Nov. 4, 2005.
In: Congress of the U.S: Commitees, Rules and Procedures ISBN 978-1-60456-416-7 Editor: Sela G. Thomason © 2009 Nova Science Publishers, Inc.
Chapter 5
GRASSROOTS LOBBYING: CONSTITUTIONALITY OF DISCLOSURE REQUIREMENTS* Jack Maskell SUMMARY Certain legislative proposals, such as S. 1, 110th Congress, and H.R. 4682, 109th Congress, seek to extend public reporting requirements for some activities intended to stimulate “grassroots” lobbying. The activities involved in “lobbying,” including the stimulation of “grassroots” lobbying, clearly implicate and involve freedoms protected by the First Amendment, including speech, associational rights, and the right to petition the government. The courts have long found, however, that certain burdens on these fundamental rights may be tolerated in a statute when the statute seeks to promote significant governmental and societal interests, when the burdens on such activities are, at the most, indirect (such as in disclosure laws), and when the statute is drawn with enough precision so that a correlation exists between the information required to be disclosed and the achievement of the interests asserted as the law’s justification. Under such standards, the courts have upheld against facial First Amendment challenges required disclosures and detailed reporting in the areas of lobbying activities and campaign finance regulation to promote the interests of preventing corruption and limiting the undue influences of monied and powerful interests, as well as preventing merely the appearance of such corruption or influence, in basic governmental and democratic processes. The apparent trend in more recent judicial decisions seems to allow the legislatures some leeway in determining which activities are relevant to the goals of preserving the integrity of, for example, their own legislative process, and so to include also in required disclosures some activities that are more on the periphery and not necessarily themselves directly involved in such process, but are intended to result in direct contacts and to significantly influence a legislator.
*
This is an edited, excerpted and augmented edition of a CRS Report for Congress publication, Order Code RL33794, dated January 12, 2007.
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In both state and federal courts, state provisions that reach “indirect” or “grassroots” lobbying have been upheld against facial constitutional challenges. The courts have noted that the Supreme Court in 1954 expressly upheld required lobbying disclosures relating to “direct” pressures on legislators by lobbying groups themselves, by their hirelings or through their “artificially stimulated letter campaigns.” In addition, the courts have seemed to recognize the growth of importance of such “grassroots” lobbying efforts in the legislative process, and the increased need for legislators and others to be able to identify and assess the pressures on legislators being stimulated (and financed) by interest groups by such methods. Under the analysis applied in these cases, it would appear that a federal statute that requires only disclosure and reporting, and does not prohibit any activity, and that reaches only those who are compensated to engage in a certain amount of the covered activity, would appear to fit within those types of provisions that have been upheld in judicial decisions when the statute is drafted in such a manner so as not to include groups, organizations, and other citizens who do no more than advocate, analyze, and discuss public policy issues and legislation. Even with the probability of such a crafted disclosure statute withstanding a facial challenge, the law could still at some point be subject to an “as applied” challenge if a particular group or organization could show a reasonable probability that the disclosures required would result in harassment or reprisals against it or its members or contributors. This chapter discusses the constitutional issues that may arise with respect to a federal law that would require disclosures of efforts to stimulate so-called “grassroots” lobbying activities by those entities and persons who are compensated to engage in such activities.
BACKGROUND Activities which are generally described as efforts to stimulate “grassroots” lobbying (depending on the context of the term and/or the particular bill in question) are communications which are directed at members of the general public, or at more selected persons on mailing lists of organizations or other entities, which take specific positions on legislative matters pending before or public policy issues to be considered by the legislature, and which contain a so-called “call to action,” that is, for example, urging the recipients of the communications to contact members of the legislature to favor or oppose legislative action on the issue.1 Currently, under federal law (the Lobbying Disclosure Act of 1995 [LDA]), registrations and disclosures by professional lobbyists are triggered and related only to so-called “direct” lobbying contacts with covered Government officials, and those activities which support those direct contacts.2 The current law’s registration and reporting requirements are not separately triggered by “grassroots” lobbying activities. That is, an organization which engages only in “grassroots” lobbying, regardless of the extent of such “grassroots” lobbying activities, is not required to register its members, officers or employees who engage in those activities, and a lobbying firm or other outside lobbyist which conducts only “grassroots” lobbying campaigns on behalf of a client, regardless of the amount of compensation from the client or the amount of grassroots activities engaged in, does not need to register and report such activities or relationships under the LDA.3
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In current legislative proposals, there are generally two ways in which efforts to stimulate “grassroots” lobbying would come within some coverage of the Lobbying Disclosure Act. In the first instance, only those professional “lobbyists” — who are now required to register under the LDA by virtue of their “direct” lobbying contacts — would additionally be made to report and disclose efforts to stimulate “grassroots” lobbying for clients or employers over a certain amount.4 Secondly, in certain proposals, entities which are compensated over a threshold amount ($25,000 or $50,000 in a calendar quarter, depending on the proposal) to engage in activities to stimulate “grassroots” lobbying to a particular extent on behalf of a client would separately “trigger” registration and disclosure of such activities under the amended LDA.5 Under either method of coverage, however, an organization which itself engages only in efforts to stimulate “grassroots” lobbying on behalf of itself, through its own employees, members, or volunteers, would need not register and file disclosure reports if they do not meet the threshold trigger for “direct” lobbying contacts with covered officials. Neither the current Senate bill under consideration, S. 1, 11 0th Congress, nor the similar House version from the 109th Congress, H.R. 4682, 109th Congress, would change the definition of a “lobbyist” who must register (that is, a “lobbyist” to be covered must still make more than one direct “lobbying contact,” which expressly does not include solicitations to stimulate grassroots lobbying6). The only additional registrants under these types of provisions would be for “grassroots lobbying firms” which, as noted, would cover only those entities compensated by clients to stimulate grassroots lobbying efforts on the client’s behalf.
CONSTITUTIONAL PROTECTION OF LOBBYING AND ADVOCACY ACTIVITIES The activities involved in “lobbying,” that is, persons individually or in association with one another engaging in, initiating and/or directing advocacy communications to public officials on political, social and economic issues of interest to those individuals and groups, have been found to be intertwined with and implicate several fundamental rights protected by the First Amendment to the United States Constitution.7 In Eastern Railroads President Conference v. Noerr Motor Freight, Inc., the Supreme Court ruled that because of First Amendment considerations the prohibitions of the Sherman Anti-Trust Act could not reach the activities of rival businesses to prohibit them acting in concert to lobby legislatures for favorable transportation legislation. The Court noted that lobbying activities involve the “right of petition [which] is one of the freedoms protected by the Bill of Rights,” and could not be restricted by statute without serious First Amendment implications.8 The Court explained the importance of lobbying activities in our representative form of government: In a representative democracy such as this, these branches of government act on behalf of the people and, to a very large extent, the whole concept of representation depends upon the ability of the people to make their wishes known to their representatives.9
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The activities involved in lobbying, public advocacy and political expression about public policy issues, government and legislation, have been found by the Supreme Court to be among the most important freedoms in preserving an open democracy.10 The Court has thus noted the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open,”11 and has in the past explained that “expression on public issues ‘has always rested on the highest rung of the hierarchy of First Amendment values.’”12 The Supreme Court has therefore found that any regulations imposed by Congress on such lobbying and advocacy activities may not unduly burden the exercise of participants’ First Amendment rights.13 Even when a federal regulation on public policy advocacy involved merely a disclosure and reporting requirement, and not a restriction which directly limits or prohibits advocacy activities, such a regulation underwent a rigorous constitutional scrutiny14 since, as characterized by the Supreme Court in Buckley v. Valeo, the Court has recognized the “deterrent effects on the exercise of First Amendment rights” which may arise “as an unintended but inevitable result of the government’s conduct in requiring disclosure.”15 The Supreme Court in NAACP v. Alabama16 overturned a State court contempt citation against the NAACP for that organization’s failure to disclose its local membership list. Recognizing that “(e)ffective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association” and that, based upon the First Amendment rights of freedom of speech, petition and assembly, the Constitution guarantees the “freedom to engage in association for the advancement of beliefs and ideas,” the Court noted the “chilling effect” that certain state actions, such as requiring the disclosure of membership lists, may have upon the exercise of those rights.17 There has additionally been recognized a constitutional protection for, as well as a longstanding tradition in our country of, anonymous political speech and pamphleteering. In McIntyre v. Ohio Elections Commission,18 the Supreme Court overturned a State statute requiring that the author of a pamphlet or political document place his or her name and home address on the document when the material was distributed in relation to an upcoming election/referendum on taxes. The Court found that the purpose of the identification law in Ohio was to prevent “fraud and libel” in campaign literature, and to provide information to the voter, but that requiring the author to put his or her name and address on the literature was inherently chilling, did not provide for most voters generally useful information, and did not sufficiently promote the governmental interests asserted as its justification.19
GOVERNMENTAL INTEREST IN LOBBYING DISCLOSURES The Supreme Court has thus recognized the potential threat of the “chilling” of First Amendment rights in disclosure statutes which require identifications of those responsible for issue-oriented advocacy and persuasion concerning public policy and political issues. However, it has been noted as a general principle that although First Amendment rights “are fundamental, they are not in their nature absolute”;20 and the federal courts have increasingly upheld statutory regulation in the area of lobbying and campaign disclosures against facial challenges when, on balance, the governmental interest asserted in the regulation is significant, when possible limitations on First Amendment rights are only indirect (as in
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disclosure statutes), and where the statute in question is drawn with sufficient precision so as to promote and be relevant to the interests asserted as the statute’s justification. The Government’s asserted interests in preserving the integrity of fundamental governmental processes, such as the legislative process, and protecting such proceedings from corruption and undue influences from those who are paid specifically to influence them has been long recognized as a significant, important and compelling governmental interest.21 These interests of promoting and protecting the integrity of governmental processes from corruption and undue influences, of shedding light on the workings of Government, and in preserving the confidence of the public in the integrity and basic fairness of our democratic institutions are the interests that have informed the decisions permitting, in the field of lobbying regulation (as well as in some areas of campaign finance regulation), required disclosures, reporting, and identifications which, out of the context of professional “lobbying” or campaign finance, might otherwise be problematic from a First Amendment prospective. Thus, the Supreme Court has upheld the constitutionality of contribution limitations and disclosure requirements concerning contributors to and expenditures by political parties, political committees and candidates in Buckley v. Valeo, the disclosure requirements of the Federal Regulation of Lobbying Act of 1946 in United States v. Harriss, and a range of disclosures, reporting, as well as certain limitations and prohibitions in a broad range of campaign finance activities and issue advocacy in McConnell v. Federal Election Commission, 540 U.S. 93 (2003). In 1954 the Supreme Court upheld the reporting and registration requirements of the Federal Regulation of Lobbying Act of 1946. The Court in Harriss, construing narrowly the provisions of the Federal Regulation of Lobbying Act (2 U.S.C. §§261 et seq., 1994 Code ed.) upheld the constitutionality of that Act. As to the governmental interest involved in requiring the reports and disclosure from those who engage in “lobbying,” as that term was defined by the Court, the Court stated: Present-day legislative complexities are such that individual members of Congress cannot be expected to explore the myriad pressures to which they are regularly subjected. Yet full realization of the American ideal of government by elected representatives depends to no small extent on their ability to properly evaluate such pressures. Otherwise the voice of the people may all too easily be drowned out by the voice of special interest groups seeking favored treatment while masquerading as proponents of the public weal. This is the evil which the Lobbying Act was designed to help prevent. Toward that end, Congress has not sought to prohibit these pressures. It has merely provided for a modicum of information from those who for hire attempt to influence legislation or who collect or spend funds for that purpose. It wants only to know who is being hired, who is putting up the money, and how much. It acted in the same spirit and for a similar purpose in passing the Federal Corrupt Practices Act — to maintain the integrity of a basic governmental process. See Burroughs and Cannon v. United States, 290 U.S. 534, 545. Under these circumstances, we believe that Congress, at least within the bounds of the Act as we have construed it, is not constitutionally forbidden to require the disclosure of lobbying activities. To do so would be to deny Congress in large measure the power of selfprotection. And here Congress has used that power in a manner restricted to its appropriate end. We conclude that [the registration and reporting sections of the Act], as applied to persons defined in §307 [those covered by the Act], do not offend the First Amendment.22
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The Supreme Court in Buckley and in McConnell, looking at “campaign finance” regulations, recognized not only the significant governmental interest of assuring purity in elections, but also ultimately, the interest in mitigating the potential affect and undue influence of monied interests on the legislative process. The Court in Buckley, finding that disclosure requirements generally “appear to be the least restrictive means of curbing the evils” of unwarranted influence and corruption concerning basic governmental processes,23 noted that governmental interests such as these may “outweigh” the possible chilling effect of disclosure statutes on First Amendment rights: The strict test established by Alabama is necessary because compelled disclosure has the potential for substantially infringing the exercise of First Amendment rights. But we have acknowledged that there are governmental interests sufficiently important to outweigh the possibility of infringement, particularly when the “free functioning of our national institutions” is involved.24
The prevention of both actual undue influence, and the appearance of the undue influence of large, monied interests on the legislative process was sufficient for the Supreme Court in McConnell v. FEC to justify not only “disclosures,” but also contribution limitations and prohibitions, as well as certain expenditure regulations in the context of campaigns to federal office and the relationship between a candidate/officeholder and those persons who are involved in the election process by spending or contributing large sums of money: Our cases have firmly established that Congress’ legitimate interest extends beyond preventing simple cash-for-votes corruption to curbing “undue influence on an officeholder’s judgment, and the appearances of such influences.25
With respect to contribution limitations, the Court reiterated its position: “Our cases have made clear that the prevention of corruption or its appearance constitutes a sufficiently important interest to justify political contribution limits.”26 In addition to the general federal lobbying disclosure laws, there is currently a federal law in force that is commonly known as “FARA,” the Foreign Agents Registration Act. Similar to the general federal lobbying law, this law, rather than prohibiting lobbying, or information or propaganda campaigns for or on behalf of foreign interests, instead requires registrations and disclosures by agents of foreign interests who engage in political or propaganda activities in the United States on behalf of such foreign interests, and also requires labeling of certain material distributed in the United States on behalf of those foreign principals.27 FARA has been upheld against constitutional challenges based on First Amendment freedoms because the courts found that the law does not prohibit speech or expression, but rather merely requires information from those engaging in such activities on behalf of foreign interests. In United States v. Peace Information Center,28 the federal district court noted specifically that the law “neither limits nor interferes with freedom of speech,” nor does it “regulate expression of ideas” or “preclude the making of any utterances”; rather, the court found that the Act “merely requires persons carrying on certain activities to identify themselves by filing a registration statement.”29 Similarly, the “labeling” and identifying of publicly distributed material under FARA was challenged on First Amendment grounds in a case concerning the distribution of films
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about acid rain produced by the Canadian Film Board and distributed in the United States. In Meese v. Keene,30 the labeling and public disclosure requirement was upheld by the Supreme Court against the constitutional challenges of distributors of the material in the United States. The Court noted that the act places “no burden on protected expression,” and that the law was not intended to “prohibit, edit, or restrain the distribution of advocacy materials.”31 Rather, the Court believed that the labeling requirement added to the information that the public receives, rather than suppressing any information or expression: To the contrary, Congress simply required the disseminators of such material to make additional disclosures that would better enable the public to evaluate the import of the propaganda. The statute does not prohibit appellee from advising his audience that the films have not been officially censured in any way... . By compelling some disclosure of information and permitting more, the Act’s approach recognizes that the best remedy for misleading or inaccurate speech contained within material subject to the Act is fair, truthful, and accurate speech.32
Finally, as to governmental interests generally in required disclosures for activities in this subject area, it is informative to note that the governmental interest asserted in the 1995 political leafleting “labeling” case in Ohio (McIntyre v. Ohio Elections Commission), was to prevent “fraud and libel,” and not the deterrence of corruption or the appearance of corruption or undue influence upon governmental processes. In McIntyre, while overturning Ohio’s labeling provision on leaflets which were intended to prevent “fraud and libel,” the Court distinguished the lobbying and campaign disclosure cases and expressly indicated that, contrary to the fraud and libel interest, the interests of deterring corruption or the appearance of corruption of governmental processes was a compelling enough interest to justify disclosure of, for example, lobbying activities.33
DISCLOSURE OF DIRECT VS. INDIRECT LOBBYING It has been argued that in both the Harriss and the Buckley cases the Supreme Court made a specific distinction that, on the one hand, provided significant leeway to the government to require reporting and disclosures from those “directly” involved in or impacting the governmental processes being protected, as opposed to regulating those who are more on the periphery of the targeted activities and so do not directly impact, influence or communicate with candidates, lawmakers or public officials.34 In Harriss, the Supreme Court found that the lobbying statute, as the Court interpreted it, “sought the disclosure of ... direct pressures [upon Congress] ...,”35 implying that the statute would not entail “a broader application to organizations seeking to propagandize the general public.”36 Similarly, in Buckley v. Valeo, the Court had upheld disclosure provisions on independent expenditures by narrowing their application to groups that engage in express advocacy in relation to candidates, and who are thus more directly and intimately involved in the electoral process, rather than merely applying to independent “groups engaged purely in issue discussion,”37 and who thus have only a tangential or peripheral impact or connection to the electoral process, candidates and public officials. In the lower court case in Buckley v. Valeo,38 the United States Court of Appeals overturned former 2 U.S.C. § 437a, a disclosure provision
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concerning independent expenditures, and that part of the decision was not appealed to Supreme Court.39 The Court of Appeals stated there: The Supreme Court has indicated quite plainly that groups seeking only to advance discussion of public issues or to influence public opinion cannot be equated to groups whose relation to political processes is direct and intimate. In United States v. Rumely, 345 U.S. 41 (1953), the Court upheld a resolution authorizing a House committee to inquire into lobbying activities after construing it narrowly to apply only to representations made directly to Congress, and not to indirect efforts to influence legislation by changing the climate of public opinion.40
In the context of lobbying disclosure provisions (as in the case of the campaign disclosure provisions reviewed in the Buckley case), the overbreadth doctrine41 may arguably counsel that the activities which are subject to disclosure requirements be carefully defined to exclude required disclosures relating to activities of individuals or groups that “do no more than discuss issues of public interest,” or activities by “groups engaged purely in issue discussion.” Disclosure and reporting requirements which sweep within their scope the activities by issue oriented or advocacy groups who do no more than publicly discuss, analyze or advocate positions on public issues, might arguably be too remote and not have a “substantial connection” to the governmental interest in lobbying regulation recognized in the Harriss case, that is, the revelation of “direct pressures” and influences upon Congress in order to “maintain the integrity of a basic governmental process.”42 For example, in United States v. Rumely, supra, the Supreme Court, in upholding a resolution authorizing a House committee to investigate into “lobbying activities” which the Court narrowly defined, stated the following: Surely it cannot be denied that giving the scope to the resolution for which the Government contends, that is, deriving from it the power to inquire into all efforts of private individuals to influence public opinion through books and periodicals, however remote the radiations of influence which they may exert upon the ultimate legislative process, raises doubts of constitutionality in view of the prohibition of the First Amendment.43
It does not appear that these standards would, however, necessarily bar Congress from requiring the disclosure of information from groups or persons compensated to influence the legislative process, and who attempt to do so through either “direct” or indirect “grassroots” lobbying activities and communications. In the first instance, it should be emphasized that while the Supreme Court case of United States v. Harriss was ostensibly a decision that found permissible required disclosures of “direct” lobbying activities, the Supreme Court, in narrowly interpreting the provisions of the 1946 Lobbying Act, expressly explained that the lobbying statute “sought the disclosure of ... direct pressures [upon Congress] exerted by the lobbyists themselves or through their hirelings or through an artificially stimulated letter campaign.” The Supreme Court in Harriss stated: As in United States v. Rumely, 345 U.S. 41, 47, which involved the interpretation of similar language, we believe this language should be construed to refer only to “lobbying in its commonly accepted sense” — to direct communication with Members of Congress on pending or proposed federal legislation. The legislative history of the Act makes clear that, at
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the very least, Congress sought disclosure of such direct pressures, exerted by the lobbyists themselves or through their hirelings or through an artificially stimulated letter campaign.44
It is thus significant that the Supreme Court in Harriss included “artificially stimulated letter campaigns” as among the “direct” pressures on Congress that the lobbying law of 1946 could regulate by way of disclosures. The kinds of “grassroots” activities which the various proposed bills seek to include in disclosures would appear to be within this range of activity when they are sufficiently directed at conduct that involves such artificially stimulated letter campaigns (which are now often called “astroturf” lobbying), and as such, would arguably be activity which has already been considered by the Supreme Court to be of the type which may properly be subject to disclosure requirements. Grassroots activities by those compensated to influence legislation, when such activities involve a “call to action,” as opposed to pure issue discussion or mere advocacy of a particular point of view, would generally be considered to be those communications that provide arguments and information in a manner and in a particular context intended and designed to stimulate a letter writing campaign and direct contacts and communications by members of the public with covered officials that may not have spontaneously occurred.45 Secondly, it should be noted that the distinction between what has been characterized as “express advocacy,” as opposed to “issue advocacy,” as far as the permissibility of requiring disclosures of such activities within a campaign context, while certainly valid in the past, has become less relevant in more recent case law. The Supreme Court in McConnell v. FEC, allowed certain limitations on, as well as disclosures about “issue advocacy” advertisements in what were defined as “electioneering communications” when such communications, regardless of any “express advocacy” (of the election or defeat of a clearly identified candidate), occur within a particular time frame near an election.46 The Court in McConnell expressly denied that, in the context of campaigns, a distinction between such communications is constitutionally based, but rather was mandated in the past only by statutory construction: “[A] plain reading of Buckley makes clear that the expenditure advocacy limitation, in both the expenditure and the disclosure contexts, was the product of statutory interpretation rather than a constitutional command.”47 Furthermore, the Court found: “Nor are we persuaded, independent of our precedents, that the First Amendment erects a rigid barrier between express advocacy and so-called issue advocacy.”48 The Court in McConnell thus upheld the disclosure requirement, even for so- called issue advocacy (as opposed to the “express advocacy” of the election or defeat of an identified candidate), when those issue ads ran in a certain time frame before an election for federal office, thus finding, in effect, that such groups do have enough of a “direct and intimate” relation to the political process to justify disclosing the required information regarding their activities. The Supreme Court in McConnell cited with approval the portion of the District Court’s per curium decision dealing with the required disclosures under “BCRA,” (the Bipartisan Campaign Reform Act) of “issues ads”: ... Plaintiffs never satisfactorily answer the question of how ‘uninhibited, robust, and wideopen’ speech can occur when organizations hide themselves from scrutiny from the voting public. ... Plaintiff’s argument for striking down BCRA’s disclosure provisions does not reinforce the precious First Amendment values that Plaintiffs argue are trampled by BCRA,
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The Supreme Court decisions thus far with respect to preserving the integrity of the electoral and legislative processes appear to attempt to balance competing interests in such a way as to promote a societal value of increasing the opportunity, effectiveness, and thus the encouragement for participation in the democratic process by ordinary citizens vis-a-vis the more wealthy or organized “special” interests. The decisions have thus, in effect, sought to reduce the perceived “monopoly” that wealthy individuals and monied interests might have in gaining the ear or access to public officials, thus leaving room for and encouraging ordinary citizens to participate and have an impact on public policy. In Harriss, for example, the Supreme Court expressly upheld the disclosure and sunlight provisions of the 1946 lobbying law because “the voice of the people may all too easily be drowned out by the voice of special interest groups seeking favored treatment while masquerading as proponents of the public weal.”50 The Supreme Court in McConnell, quoting specifically from its ruling in Shrink Missouri Government PAC, allowed certain restrictions and disclosure of particular advocacy activities so as not to discourage others’ participation in government: “Take away Congress’ authority to regulate the appearance of undue influence and the ‘cynical assumption that large donors call the tune could jeopardize the willingness of voters to take part in the democratic process.’”51 In the Ohio case dealing with identification labeling on political leaflets and pamphlets, McIntyre v. Ohio Elections Commission, the Supreme Court invalidated a state law requiring the placing of the author’s name and address on political pamphlets where it expressly noted that the plaintiff’s activity was not “coordinated” with any public official, candidate or their “organized supporters” in an election, but rather was “independent activity pursued by Mrs. McIntyre,”52 similar in nature and analogous to the activities of “volunteers” in a campaign which need not be disclosed or counted as campaign contributions under campaign finance law.53 These interests and values of citizen participation may arguably be consonant with the “grassroots” lobbying proposals under consideration, since such proposals would not encompass and thus not require disclosure of any activity by an individual for himself or herself, nor would it reach any activity by those who are merely volunteers of an organization and who are not compensated for their duties, as the grassroots provisions cover only “professional” lobbyists who are compensated above a certain amount to engage in a particular amount of indirect lobbying activities.
AS-APPLIED ANALYSIS Although the Supreme Court has explained that disclosure provisions generally “appear to be the least restrictive means of curbing the evils” of unwarranted influence and corruption concerning governmental processes,54 the Court did note that the “balance” might be tipped in favor of non-disclosure where an organization may show that disclosure would result in harassment or threats of reprisal to contributors or members such that First Amendment rights of association and expression would seriously be infringed by the disclosures. The Court in Buckley stated:
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There could well be a case, similar to those before the Court in Alabama and Bates, where the threat to the exercise of First Amendment rights is so serious and the state interest furthered by disclosure so insubstantial that the Act’s requirements cannot be constitutionally applied. But no appellant in this case has tendered record evidence of the sort proffered in Alabama.55
As to the evidence which may be necessary to be shown by a minor political party to exclude such a group from the disclosure requirements of the campaign Act, the Court in Buckley stated: The evidence offered need show only a reasonable probability that the compelled disclosure of a party’s contributors’ names will subject them to threats, harassment or reprisals from either government officials or private parties. The proof may include, for example, specific evidence of past or present harassment of members due to their associational ties, or of harassment directed against the organization itself. A pattern of threats or specific manifestations of public hostility may be sufficient.56
Thus although broad facial attacks on provisions of law dealing with such things as lobbying and political campaigns, where the law merely requires disclosures and reporting of activities and the amount of expenditures concerning such activities, would face a significant hurdle because of the recognized important and “vital” interest of the Government in assuring the integrity of these processes,57 such provisions may be examined under an “as-applied” challenge by particular groups, entities or individuals. The Supreme Court in McConnell, after quoting the standard to be used in an as-applied challenge, that is, if the parties can show a “reasonable probability”of “economic reprisals or physical threats” or other such similar “harassments,” noted that “our rejection of plaintiffs’ facial challenge to the requirement to disclose individual donors does not foreclose possible future challenges to particular applications of that requirement.”58
JUDICIAL DECISIONS AND STATE GRASSROOTS LOBBYING DISCLOSURE The clear trend in federal case law concerning constitutional challenges to lobbying statutes in the states has been to uphold against facial challenges provisions of state law which require the disclosure of “indirect” lobbying campaigns which involve “grassroots” lobbying of the nature generally covered in the legislative proposals discussed. While at least one state court has found disclosures of “indirect” grassroots lobbying to be beyond the permissible regulatory arm of the government (concerning disclosures required by the wording of a voter-adopted referendum),59 the indication from more recent state court cases is that the courts will uphold statutory requirements for “grassroots” lobbying activities, that is, those activities that urge or direct others to make direct communications or contacts with public officials, that are part of a general regulatory scheme to identify pressures and influences on the government and its officials, and to increase citizen confidence in the integrity of governmental institutions and processes. The Supreme Court of the State of Washington in 1974, for example, upheld very detailed lobbying disclosure provisions of State law concerning “grassroots” lobbying activities in Young Americans for Freedom, Inc.
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v. Gorton.60 Although the court there narrowly construed the Act so that an organization engaged in such a “lobbying” campaign need not disclose its member/contributor list,61 the court found that some disclosures regarding “grass root” lobbying campaigns, such as amounts expended, were necessary to fill possible loopholes in lobbying regulation: To strike down this portion of the initiative would leave a loophole for indirect lobbying without allowing or providing the public with information and knowledge re the sponsorship of the lobbying and its financial magnitude... . Thus, it seems abundantly clear, and we are convinced, that the right of the public to be informed is paramount to any inconvenience that reporting under section 20 [RCW §42.17.200] may cause respondent.62
The Supreme Court of Vermont in 1995, in Kimbell v. Hooper, upheld the provisions of a Vermont statute which required, among other items, reporting of “indirect contacts to influence legislators.”63 The court there found that this scheme of disclosures and reporting was within the legislature’s power to require as a measure to increase the information available about, the confidence in, and to assure the integrity of the basic legislative and governmental processes, and that the Supreme Court precedents had not ruled out required disclosures in lobbying laws of indirect pressures on public officials: Provisions that reach “indirect” lobbying activities beyond the parameters found in Rumely and Harriss are not, as plaintiffs would urge, necessarily unconstitutional; in fact, the Court intimated in these cases that Congress could require more stringent reporting. Properly evaluating the governmental process, and the influence lobbyists bring to bear upon it, implicates indirect as well as direct communications and activities needed to get the message across.64
A similar state statutory provision requiring indirect, grassroots disclosures was, in an advisory opinion by a Michigan court, found to be permissible as long as the reach of the law went to specific solicitations of others to make direct communications.65 This part of the advisory opinion was affirmed in a case in controversy in Michigan in 1983.66 As to federal court cases, a United States District Court in 1982 upheld against a constitutional challenge a New York statute which required registration and reporting from anyone who is employed by a person or entity and, in such employment, “attempts to influence the passage or defeat of legislation by either house of the legislature, approval or disapproval of any legislation by the Governor, or the adoption or rejection of any rule having the force or effect of law, or the outcome of any rate-making proceeding by a state agency.”67 The plaintiffs’ principal contention was that the statute was an over-broad intrusion into protected First Amendment conduct because it swept within its scope not only “direct contact with government officials in order to influence legislation,” but also could be interpreted to cover “any action which could conceivably impact upon governmental action ...” such as “any discussion of the merits of any governmental action that may ultimately affect or influence such action,” and as such chills “public discussions or communications in order to avoid the disclosure provisions of the lobby law.”68 The court found, however, that the law may permissibly cover both “direct” lobbying and “indirect” grassroots lobbying activities, and construed the language of the law narrowly to that end so as to exclude coverage of a broader range of pure issue discussion or public advocacy activities:
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If the foregoing [plaintiff’s argument of the law’s coverage] constituted a realistic appraisal of the scope of the New York lobby law, this Court would agree with plaintiffs that it should be struck down as overbroad. However, since this court believes that the legislation, when put in its proper context, was never meant to, and in practice, never will reach such activities, the Court declines to invalidate the law for overbreadth in that regard. At the outset, the Court notes that Harriss did not hold that only direct contact with government officials could be regulated by a disclosure law. The Court held that indirect lobbying, in the forms of campaigns to exhort the public to send letters and telegrams to public officials, could be included within the definition of lobbying activities. United States v. Harriss, supra at 621 n. 10.69
In 1985 the United States Court of Appeals for the 8th Circuit, in Minnesota State Ethical Practices Board v. National Rifle Association,70 upheld against First Amendment challenges the provisions of a Minnesota ethics and lobbying law that required registration and reporting from certain “lobbyists” who are compensated and who expend a particular threshold amount of time and money “for the purpose of attempting to influence legislative or administrative action by communicating or urging others to communicate with public officials.”71 The appellant National Rifle Association sent mailgrams and letters to all of its own members in Minnesota (approximately 54,000 persons) urging them to contact their legislators to support particular state legislation. The court found that the disclosure of the sources of pressures on legislators through such grassroots lobbying campaigns (an artificially stimulated letter campaign) to be, in a similar manner as the Supreme Court in Harriss, a “compelling interest,” and that the potential and incidental burden on First Amendment rights in a statute that prohibits no activity but requires only disclosure is, similarly to the case in Buckley v. Valeo, subordinate to the public’s “interest in disclosure.”72 The fact that the original letters were only written to and between members within a voluntary association did not in the court’s opinion change the outcome: When persons engage in an extensive letterwriting campaign for the purpose of influencing specific legislation, the State’s interest is the same whether or not those persons are members of an association. The appellants have articulated no reason why their membership in the NRA should give then any greater constitutional protection with respect to lobbying activity than is enjoyed by other citizens.
In Florida League of Professional Lobbyists v. Meggs,73 the United States Court of Appeals for the 1 1th Circuit in 1996 similarly upheld against first amendment challenges a Florida lobbying disclosure statute which required reporting not only of direct face-to-face lobbying, but also included “indirect” lobbying activities, such as “media campaigns,” within its scope. The court there, citing the interests of the government in providing information to the public and to officeholders about the various pressures and influences on the legislative performances of public officials recognized by the Supreme Court in both Harriss and Buckley v. Valeo, said: The League concedes, as it must, that the state has articulated legitimate interests... . And, these interests continue to apply when the pressures to be evaluated by voters and government officials are “indirect” rather than “direct.” ... In fact, the government interest in providing the
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In both state and federal courts, provisions which reach “indirect” or “grassroots” lobbying, that is, efforts to persuade, urge or convince members of the public, or members of one’s organization, to make direct communications and contacts with public officials on a particular issue, have been upheld against facial constitutional challenges. The courts have noted that the Supreme Court in 1954 expressly upheld required lobbying disclosures relating to “direct” pressures on legislators by lobbying groups themselves, by their hirelings or through their “artificially stimulated letter campaigns.” Additionally, the courts have seemed to recognize the growth of importance of such “grassroots” lobbying efforts in the legislative process, and the increased need for legislators and others to be able to identify and assess the pressures on legislators being stimulated (and financed) by interest groups by such methods. Under the analysis applied in these cases, it would appear that a federal statute which requires only disclosure and reporting, and does not prohibit any activity, and which reaches only those who are compensated to engage in a certain amount of the covered activity (leaving volunteer organizations, volunteers, and individuals who engage in such activities on their own accord out of the coverage and sweep of the provisions), would appear to fit within those types of provisions which have been upheld in judicial decisions when the statute is drafted in such a manner so as not to be susceptible to an overly broad sweep bringing in groups, organizations and other citizens who do no more than advocate, analyze and discuss public policy issues and/or legislation. Even with the probability of such a crafted disclosure statute withstanding a facial challenge, the law could still at some point be subject to an “as applied” challenge if a particular group or organization could show a reasonable probability that the disclosures required would result in harassment or reprisals against it or its member or contributors.
ENDNOTES 1
For purposes of the Internal Revenue Code, for example, not all public “advocacy” activities are considered “grassroots lobbying.” As noted expressly by the IRS: “... clear advocacy of specific legislation is not grassroots lobbying at all unless it contains an encouragement to action.” 26 C.F.R. § 56.49 1 1-2(b)(2). A communication “encourages a recipient to take action” if it (1) states that the recipient should contact legislators; (2) provides a legislator’s phone number, address, etc; (3) provides a petition, tear-off postcard, or similar material to send to a legislator; or (4) specifically identifies a legislator who is opposed, in favor, or undecided on the specific legislation, or is on the committee considering the legislation, if the communication itself is “partisan” in nature and can not be characterized as a full and fair exposition of the issue. 2 2 U.S.C. § 1603(a), see definitions of terms “lobbying activity” and “lobbying contact” in § 1602(7) and (8) and “lobbyist” in § 1602(10).
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Once an organization has met the threshold requirements for “direct” lobbying and is registered, certain background activities and efforts “in support of” its direct “lobbying contacts,” which may include activities which also support other activities or communications which are not lobbying contacts such as, in theory, “grassroots” lobbying efforts, may need to be disclosed generally as “lobbying activities.” 2 U.S.C. § 1602(7). Note H.R. Rpt. No. 104-339, 104th Cong.,1st Sess., “Lobbying Disclosure Act of 1995,” 13- 14 (1995). The instructions of the Clerk of the House and Secretary of the Senate also note that “Communications excepted by Section 3(8)(B) will constitute ‘lobbying activities’ if they are in support of other communications which constitute ‘lobbying contacts.’” 4 See, for example, S. 1, 110th Congress, Section 220(a)(1) and (2), and H.R. 4682, 109th Congress, Section 204(a)(1). 5 These entities are generally called “grassroots lobbying firms.” See, for example, S. 1, 1 10th Congress, Section 220(b) and (a)(2); and H.R. 4682, 109th Congress, Section 204(b)(4). 6 2 U.S.C. § 160 12(10), “lobbyist”; 2 U.S.C. § 1602(8), “lobbying contact”. 7 United States v. Harriss, 347 U.S. 612 (1954); United States v. Rumely, 345 U.S. 41 (1953); Eastern Railroads President Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 137138 (1961). See, generally, discussion in Eastman, Lobbying: A Constitutionally Protected Right, American Enterprise Institute for Public Policy Research (1977). The rights asserted have included the freedom of speech, freedom of association and the right to petition the Government. Note discussion in Browne, “The Constitutionality of Lobby Reform: Implicating Associational Privacy and the Right to Petition the Government,” 4:2 William & Mary Bill of Rights Journal 717(1995). 8 365 U.S. at 138. 9 365 U.S. at 137. 10 “Discussion of public issues and debate ... are integral to the operation of the system of government established by our constitution.” Buckley v. Valeo, 424 U.S. 1, 14 (1976). As early as 1938 Chief Justice Stone postulated on the possible stricter scrutiny under the First Amendment for “legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation.” United States v. Carolene Products Co., 304 U.S. 144, 152, n.4. 11 New York Times v. Sullivan, 376 U.S. 254, 270 (1964); Garrison v. State of Louisiana, 379 U.S. 69 (1964). 12 NAACP v. Clairborne Hardware Co., 458 U.S. 886, 913 (1982); Carey v. Brown, 447 U.S. 455, 467 (1980); FCC v. League of Women Voters of California, 468 U.S. 364, 381 (1984). 13 United States v. Harriss, 347 U.S. 612 (1954); United States v. Rumely, 345 U.S. 41 (1953); Eastern Railroads President Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 137-138 (1961). 14 United States v. Harriss, 347 U.S. 612 (1954). 15 424 U.S. at 65; United States v. Harriss, supra; NAACP v. Button, 371 U.S. 415 (1963). 16 357 U.S. 449 (1958). 17 The Supreme Court stated: Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, any State action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny. The
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Jack Maskell fact that [the State]. ..has taken no direct action, (citations omitted) to restrict the right of petitioner’s members to associate freely, does not end the inquiry into the effect of the production order. (citations omitted) In the domain of these indispensable liberties, whether of speech, press, or association, the decisions of this Court recognize that abridgment of such rights, even though unintended, may inevitably follow from varied forms of governmental action. 357 U.S. at 460 -461; see also Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 544 (1963); Bates v. Little Rock, 361 U.S. 516 (1960); Shelton v. Tucker, 364 U.S. 479 (1960).
18
514 U.S. 334 (1995). “The State may, and does, punish fraud directly. But it cannot seek to punish fraud indirectly by indiscriminately outlawing a category of speech, based on its content, with no necessary relationship to the danger sought to be prevented.” 514 U.S. at 357. 20 Whitney v. California, 274 U.S. 357, 373 (1927) [Justice Brandeis concurring]; Terminiello v. Chicago, 337 U.S. 1, 4 (1949), Justice Douglas delivering opinion of the Court. 21 As early as 1853 the Supreme Court noted, for example, the problem of rich contingency contracts to lobbyists and refused to enforce any such agreement — 19
which is inconsistent with sound morals or public policy; or which tends to corrupt or contaminate, by improper influences, the integrity of our social or political institutions. ... Legislators should act from high consideration of public duty. Public policy and sound morality do therefore imperatively require that courts should put the stamp of disapprobation on every act, and pronounce void every contract the ultimate or probable tendency of which would be to sully the purity or mislead the judgments of those to whom the high trust of legislation is confided. ... Bribes in the shape of high contingent compensation, must necessarily lead to the use of improper means and the exercise of undue influence. Their necessary consequence is the demoralization of the agent who covenants for them; he is soon brought to believe that any means which will produce so beneficial a result to himself are “proper means”; and that a share of these profits may have the same effect of quickening the perceptions and warming the zeal of influential or “careless” members in favor of his bill. Marshall v. Baltimore & Ohio R.R., 57 U.S. (16 How.) 314, 333-334 (1853). 22
347 U.S. at 625-626. 424 U.S. at 68. 24 424 U.S. at 66, citing Communist Party v. Subversive Activities Control Bd., 367 U.S. 1, 97 (1961). 25 540 U.S. at 150, citing FEC v. Colorado Republican Federal Campaign Comm., 533 U.S. 431, 441 (2001). 26 540 U.S. at 143. 27 See 22 U.S.C. §§ 611 et. seq. 28 97 F. Supp. 255 (D.D.C. 1951). 29 97 F. Supp. at 262. See also discussion in Viereck v. United States, 318 U.S. 236, 251 (1943)(Black, J. dissenting); Attorney General v. Irish Northern Aid Committee, 346 F. Supp. 1384 (S.D.N.Y. 1972), aff’d without opinion, 465 F.2d 1405 (2d Cir.), cert. denied, 409 U.S. 1080 (1972). 30 481 U.S. 465 (1987). 31 481 U.S. at 480. 32 481 U.S. at 480-481. 33 514 U.S. 334, 356, n. 20 (1995). 23
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See, for example, discussion by the United States District Court in narrowing the reach and application of a New Jersey elections and lobbying provision, in ACLU of New Jersey v. New Jersey Election Law Enforcement Commission, 509 F. Supp. 1123, 1129, 1131-1134 (D.N.J. 1981). 35 347 U.S. at 620. Emphasis added. 36 347 U.S. at 621. 37 Buckley v. Valeo, 424 U.S. at 79. 38 519 F. 2d 821 (D.C. Cir. 1975). 39 See Buckley v. Valeo, 424 U.S. 1, 10, n.7. 40 5 19 F. 2d at 873. 41 Disclosure provisions may not be so broad as to “invade the area of protected freedoms” (NAACP v. Alabama, supra at 307), and must be fashioned so that the required information to be disclosed under the law bears “a reasonable relationship to the achievement of the governmental purpose asserted as [the statute’s] justification” (Bates v. Little Rock, 361 U.S. 516, 525 (1960)), that is, there must “be a ‘relevant correlation’ or ‘substantial relation’ between the governmental interest and the information required to be disclosed.” Buckley v. Valeo, 424 U.S. 1, 64 (1976). 42 Harriss, supra at 625. 43 345 U.S. at 46. 44 347 U.S. 620 (emphasis added). 45 See, for example, IRS definition of “grassroots” lobbying, in this memorandum, footnote #1. 46 The question of the coverage in the law of “real” issue ads (that are not necessarily intended as electioneering, even if run in proximity to an election) could still be raised on a case-by-case basis, that is, on an “as-applied” basis. Wisconsin Right to Life, Inc. v. FEC, 546 U.S. 410 (2006). 47 540 U.S. at 19 1-192. 48 540 U.S. at 193. 49 540 U.S. at 197, citing the District Court’s per curium decision, at 251 F. Supp. 2d 176, 237 (D.D.C. 2003). 50 347 U.S. at 625. 51 McConnell, supra at 144, quoting Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 390 (2000). See, generally, Justice Stephen Breyer, Active Liberty, 43-50, on the interest of the encouragement of participatory democracy in First Amendment adjudications. 52 514 U.S. at 354. 53 514 U.S. at 351, n.14. The Court also distinguished the requirement of individuals to place their names and addresses on handbills and leaflets relating to elections, from the requirement of groups to report on expenditures made in support or opposition to candidates in elections: “[I]dentification of the author against her will is particularly intrusive; it reveals unmistakably the contents of her thoughts on a controversial issue. Disclosure of an expenditure and its use, without more, reveals far less information. It may be information that a person prefers to keep secret, and undoubtedly it often gives away something about the spender’s political views. Nonetheless, even though money may ‘talk,’ its speech is less specific, less personal, and less provocative than a handbill
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— and as a result, when money supports an unpopular viewpoint it is less likely to precipitate retaliation.” 514 U.S. at 355. 54 Buckley v. Valeo, 424 U.S. 1, 68 (1976). 55 424 U.S. at 71. 56 424 U.S. at 74. 57 The Supreme Court in McConnell indicated that facial challenges to the disclosure provisions in the campaign act dealing with prevention of undue influence, potential corruption, and the appearance of such activities, in the realm of federal elections and electioneering communications, would not be entertained: “The District Court was also correct that Buckley forecloses a facial attack on the new provision ... that requires disclosure of the names of persons contributing $1,000 or more to segregated funds or individuals that spend more than $1,000 in a calendar year on electioneering communications.” 540 U.S. at 170. The Court also noted with approval the scrutiny applied to such disclosure provisions in this context: “As the District Court observed, amended FECA § 304's disclosure requirements are constitutional because they “d[o] not prevent anyone from speaking.” 540 U.S. at 201. 58 540 U.S. at 198, 199. See specifically, Brown v. Socialist Workers ‘74 Campaign Comm. (Ohio), 459 U.S. 87, 100 (1982). 59 Montana Auto Association v. Greely, 632 P.2d 300, at 307 (Mont. 1981). 60 522 P.2d 189 (Wash. 1974). 61 “We can agree with the contention of YAF that a required disclosure of its membership would be an impermissible and unconstitutional intrusion upon its members’ associational freedoms and the right to privacy. N.A.A.C.P. v. Alabama, 357 U.S. 449 ... (1958).” 522 P.2d at 191. 62 522 P.2d at 192. The section of the Revised Code of Washington was §42.17.200, entitled “Grass roots lobbying campaigns” and concerned, as characterized by the court, “indirect” lobbying, that is, “a program addressed to the public, a substantial portion of which is intended, designed or calculated primarily to influence legislation... .” The sponsor of such a “program,” if such person has expended over the threshold amounts designated, must register and report certain items including “[t]he names and addresses of all persons contributing to the campaign, and the amount contributed by each contributor.” R.C.W. §42. 17.200(2)(c)). To avoid the constitutional infirmities noted, the Supreme Court of Washington narrowly construed the section in question to apply only to funds expended by the organization concerning a specific campaign directed at a specific piece of pending or proposed legislation, and to require the disclosure only of those persons who had either contributed directly to that specific campaign or who had “earmarked” funds for that specific campaign. Such an interpretation would eliminate the necessity for disclosure of an organization’s general membership list when that organization engages in indirect, grassroots lobbying. 63 665 A.2d 44, 46 (Vt. 1995). 64 665 A.2d at 47, 48 65 Advisory Opinion on Constitutionality of 1975 PA 227, 242 N.W. 2d 3 (Mich. 1976). 66 Pletz v. Secretary of State, 336 N.W.2d 789, 795 (Mich. 1983). 67 Commission on Independent Colleges and Universities v. New York Temporary State Commission on Regulation of Lobbying, 534 F. Supp. 489, 491 (N.D. N.Y. 1982), citing N.Y. Leg. Law §§ 3(a) and (b).
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534 F. Supp. at 496. 534 F. Supp. at 496. 70 761 F.2d 509 (8th Cir. 1985), cert. denied, 474 U.S. 1082 (1986) 71 761 F.2d at 510, citing Minn. Stat. § 10A.01 subd. 11 (emphasis added). 72 761 F.2d at 512. The court noted that if an appellant can show a particular or specific burden, reprisal, loss of employment or threat that these required disclosures cause, then the statute on an “as applied” basis would exempt such disclosure. Id. at 512. 73 87 F.3d 457 (11th Cir. 1996), cert. denied, 519 U.S. 1010 (1996). 74 87 F.3d at 460-46 1. 69
In: Congress of the U.S: Commitees, Rules and Procedures ISBN 978-1-60456-416-7 Editor: Sela G. Thomason © 2009 Nova Science Publishers, Inc.
Chapter 6
CONGRESSIONAL RESOURCES IN CRS RESEARCH CENTERS AND THE LA FOLLETTE CONGRESSIONAL READING ROOM* Audrey Celeste Crane-Hirsch SUMMARY Congressional staff and interns seeking quick facts, legislative information, Congressional Research Service (CRS) publications, and reference and research assistance may come in person to CRS facilities located in Library of Congress and in House and Senate office buildings. These include the Senate Research Center (SRC) in Russell B-07, the Rayburn Research Center (RRC) in Rayburn B-355, and the La Follette Congressional Reading Room (LCRR) in the Madison building LM- 202 and LM-204. The LCRR and research centers provide access to CRS products; Internet and online sources, including the CRS website and the Legislative Information Service; magazine and newspaper collections and indexing tools; a variety of standard reference books; and legislative and public policy materials useful to congressional offices. Staff and intern user self-service is welcomed, with guidance provided by CRS reference staff as needed. This chapter, originally authored by Merete F. Gerli, describes the types of CRS products and a selection of the most frequently used printed and online reference sources available in the reading room and research centers for use by congressional staff. These deal with legislation and public policy; bills, congressional documents, laws, and regulations; Congress, elections, and politics; the federal government; directories of organizations, associations, corporations, state agencies, educational institutions, and the media; biographical information; data on foreign countries and international affairs; quick facts and statistics; and special collections such as quotations.
*
This is an edited, excerpted and augmented edition of a CRS Report for Congress publication, Order Code RL33823, dated January 23, 2007.
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CRS CENTERS AND READING ROOMS ON CAPITOL HILL
Numbers refer to the diagram above. 1. La Follette Congressional Reading Room (LCRR) Madison Building, Room LM204 Monday - Thursday Friday Saturday (when Congress is in session) 2. Jefferson Congressional Reading Room (JCRR) Jefferson Building, Room LJ159 Monday – Friday (for Members of Congress only) 3. Senate Research Center (SRC) Russell Building, Room B07 Monday - Friday 4. Rayburn Research Center (RRC) Rayburn HOB, Room B335 Monday - Friday
7-7100 8:30 - 8 8:30 - 6 8:30 - 5
8:30-5:00 4-3550 9:00 - 5:30 5-6958 9:00 - 5:30
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CRS PUBLICATIONS AND PRODUCTS CRS Web pages and publications, available only through CAPnet, are intended to provide overview and background information on topics of current legislative and policy interest to Congress. They are useful for briefing Members and legislative staff as well as answering constituent requests. CRS Website. The CRS website, [http://www.crs.gov/], provides full text of all current CRS publications and can be searched directly from terminals in congressional offices or in CRS Reader Services facilities. For more information, see below. CRS Reports. CRS reports are written to address specific topics of concern to Congress. They may take the form of policy analyses, statistical reviews, economic studies, fact sheets, chronologies, bibliographies, and guides to handling certain types of requests or research.
CRS WEBSITE, LEGISLATIVE INFORMATION SYSTEM, AND OTHER ONLINE SYSTEMS CRS Website [http://www.crs.gov/] The Congressional Research Service offers information, through the Internet, designed and organized for the exclusive use of congressional offices. Congressional staff may search the CRS website directly from their office computers on Capitol Hill and district or state offices. Designated terminals in the La Follette Congressional Reading Room and Senate and House Research Centers may also be used to search CRS resources, Library of Congress catalogs, and other online systems. The CRS website includes the following: • • • • • • • •
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Floor Agenda: CRS Products (the guide to CRS products that focus on issues likely to receive floor action in House and Senate that week) Appropriations / Status Tables Bill Summary & Status Constitution Annotated Constituent Services Current Legislative Issues (CLIs) Search for CRS Products: by title, author, summary, subject, or keyword CRS Services provides information about placing requests with CRS; phone numbers and contacts; orientations, seminars, and institutes; and guidelines for interns and volunteers. Congressional Reference Desk provides links to Internet general reference materials (such as directories, dictionaries, travel, and weather information), and specialized virtual references tailored for legislative assistants, constituent caseworkers, schedulers, press secretaries, and speech writers. This section includes the CRS Grants Information Web page, which is useful in responding to certain constituent requests.
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External Internet Links by Topic Library of Congress, which includes details on how congressional staff can request books from the Library’s collections.
Legislative Information System (LIS) [http://www.congress.gov/] The CRS website also links to the Legislative Information System, specifically designed to track legislation and legislative activity, with links to CRS products and other features exclusively available to Congress. Its public counterpart is THOMAS [http://thomas.loc.gov], which constituents can use. (THOMAS, however, does not provide the same search options as LIS; it also does not provide access to CRS publications.) The LIS provides item, keyword, subject, and other searching of floor activities and schedules, bill summary and status, bill text, votes, public laws, the Congressional Record; committee reports, schedules, hearings, transcripts, and home pages; lists of House and Senate Members and links to their home pages; news and periodical literature links; support agencies and other government links; and other useful assistance and guidance for congressional staff.
Other Online Systems Available for Congressional Staff Use All CRS research centers and the La Follette Congressional Reading Room have client computers that congressional staff may use to access a variety of Web subscriptions and other online resources. Internet bookmarks at congressional staff workstations include the following: • • • • • • • • • • • • • •
Archives USA — Search Manuscript Repositories Associations Unlimited Biographical Directory of the United States Congress Britannica Online Cartoons CQ.com CQ Weekly index (Congressional Quarterly) Contemporary Authors D&B Million Dollar Database (company profiles) Digital Dissertations Editorials and opinion pieces: American Media Columnists (columns from over 600 U.S. and Canadian columnists) Editorials and opinion pieces: Opinion-Pages (English-language editorials and opinion pieces from around the world) Granger’s World of Poetry GrantS elect (grants available from government, private foundations, corporations, universities, and other entities)
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Grove Art Online Historical Abstracts Historical Newspapers Online (London Times and New York Times, 19th-20th c.) JSTOR (historical runs of economic, political science, history journals) NTIS (National Technical Information Service, index of U.S. government-sponsored research) Periodicals Index Online (humanities/social sciences journals) PolicyFile (indexes public policy news, research, and analysis) Project Muse (Scholarly journals online) ProQuest (indexing and full text, newspapers and magazines) ProQuest Historical Newspapers ReferenceUSA (searchable directory of 13 million U.S. and Canadian businesses) RLG Eureka (indexes to social sciences, arts and humanities) STAT-USA (Department of Commerce and other government agencies) Who’s Who: Marquis Who’s Who
NEXIS/LEXIS, WESTLAW, and DIALOG Many congressional offices subscribe to NEXIS/LEXIS, WESTLAW, DIALOG, and other commercial online systems for their staff and interns. Because of budget constraints, the La Follette Congressional Reading Room and House and Senate Research Centers are unable to offer self-searching of these sources to congressional staff.
ARTICLES ON A SUBJECT: LOOKING FOR BACKGROUND INFORMATION The following resources enable congressional staff and interns to locate articles on a topic. CRS subscribes to many Web and electronic full-text periodical literature services that congressional staff can use in LCRR and research centers. Congressional staff computers in research centers and LCRR have bookmarks to online systems available for congressional staff use (see above), which include full text and indexes to periodical literature. For online searching, follow screen prompts, or consult guide sheets available at each congressional staff workstation.
Magazine and Newspaper Articles — Indexes and Full Text Retrieval ProQuest. Provides summaries of articles from hundreds of newspapers and magazines, including the full text of many of these. Journals covered include magazines such as Atlantic, Black Enterprise, Business Week, Current History, Fortune, Harper’s, Ms., New York Review of Books, Science, Sports Illustrated, and Time; as well as specialized journals such as Advertising Age, Computerworld, Journal of Labor Research, Public Administration Review,
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and Survey of Current Business and Campaigns & Elections. Newspapers include major national and regional U.S. newspapers, such as the Atlanta Constitution, Boston Globe, Chicago Tribune, Christian Science Monitor, Los Angeles Times, New York Times, Wall Street Journal, and Washington Post, as well as some local papers. OCLC/First Search (Web). Online searching of numerous index and abstracting services, including Public Affairs Information Service (PAIS), Readers’ Guide Abstracts, Dissertation Abstracts, and Newspaper Abstracts. Full text available for some articles. Other Internet Sources — Newspapers and magazines, full text and indexing, are being added to the Web daily, including U.S., international, and even some U.S. college newspapers. A number of such sources are bookmarked at client PCs in LCRR and research centers. Names and descriptions of services may also be located via the CRS Website under “Congressional Staff Reference Desk/Media Services.” The Library of Congress Newspaper and Current Periodical Reading Room Website also gives information about newspapers, periodicals, and government publications [http://www.loc.gov/rr/news/]. Printed Indexes to Magazines and Newspapers — These are available in the La Follette Congressional Reading Room, the Library of Congress Newspaper and Current Periodical Reading Room (LM- 133 Madison) and the Law Library Reading Room (LM-201 Madison). They are useful for researching older materials. Magazine indexes in LCRR include Readers’ Guide to Periodical Literature and Book Review Digest; newspaper indexes include the New York Times, Washington Post, and Wall Street Journal. Also available are indexes to news information and summaries, such as Facts on File.
Issues of Magazines and Newspapers Current Issues of Magazines — Major national news, business, and public policy magazines can be found in the La Follette Congressional Reading Room and research centers. Most CRS facilities have magazines on public policy issues, such as CQ Weekly and National Journal; news weeklies, such as Time and Newsweek; business news magazines, such as Business Week and Fortune; and popular magazines, such as Consumer Reports. Most CRS facilities also have some years of back issues for magazines they receive. Collections vary depending upon space — ask the information professional. Major national current newspapers in the La Follette Congressional Reading Room and research centers include hard copies for three months of the New York Times, Washington Post, Wall Street Journal, Christian Science Monitor, Washington Times, and USA Today. The Library of Congress Newspaper and Current Periodical Reading Room (Room LM133 Madison) holds additional current newspapers and magazines, and often a year of many magazines received by the Library. Copying machines may be used free of charge by congressional staff holding current Hill identification cards. Older issues of periodicals are housed in the Library of Congress book stacks. These bound volumes may be requested for use in the La Follette Congressional Reading Room.
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BILLS, CONGRESSIONAL DOCUMENTS, LAWS, AND REGULATIONS (Text, Summaries, and Status)
CRS Website and Legislative Information System (LIS) LIS, accessible through the CRS Website, provides bill summary and status, full text of legislation and public laws, full text of committee reports, hearings, and other documents (including relevant CRS publications), and the Congressional Record for the current and earlier Congresses. The system provides information by topic, committee, sponsorship, and cosponsorship; it can be used to identify identical bills. Congressional staff may also call House LEGIS (ext. 5-1772) or the Senate Library (ext. 4-7106) for information on the current status of bills.
House Legislative Resource Center and Senate Document Room House and Senate document rooms provide copies of House and Senate bills and resolutions, committee and conference reports, public laws, and other congressional documents for the current Congress to congressional staff and the public. They may have select items from previous Congresses. Legislative Resource Center (Office of the Clerk of the House) B-106 CANNON HOB For Current Congress Phone: ext. 6-5200 or (202) 226-5200 Bills and Resolutions Hours: 9-6 Monday-Friday Public Laws [http://clerkweb.house.gov] Committee Reports (available to House offices only) House Calendars House Documents Other Statements of Disbursements For past Congresses Federal Election Campaign Reports (for House staff only) Financial Disclosure Statements House Documents Lobby Registrations Public Laws Senate Document Room (Office of the Secretary of the Senate) B04 HART SOB Current Congress only Phone: ext. 4-770 1 or (202) 224-7701 Senate Bills and Resolutions Recording (orders): ext. 4-1356 Current/past Congresses Hours: 9-5:30 Monday-Friday Committee and Conference Reports Senate and House Documents Public Laws Treaties and Executive Reports
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Other Sources CIS Index and CIS Abstracts Washington: Congressional Information Service, monthly with annual compilations. CIS provides brief abstracts of congressional publications including committee hearings, committee prints, House and Senate documents, reports, and special publications, Senate executive reports, and treaty documents. Detailed indices cover subject, name (including names of witnesses at hearings), and bill, report, and document numbers. CIS also provides legislative histories of public laws. The La Follette Congressional Reading Room and the Senate Research Center have CIS Index and CIS Abstracts. The electronic version of CIS is available through LexisNexis Congressional, a specific set of databases accessible through the client terminals in the La Follette Reading Room, and the House and Senate research centers. Copies of the documents identified, may be available from House or Senate document rooms (see above) or on CIS microfiche, which may be requested in the LCRR or in the Law Library of Congress. In addition to allowing electronic searching of the CIS index and abstracts, LexisNexis Congressional also provides the full text for most House and Senate reports and documents from 1789 through 1969, ( through its “Serial Set” component) and the full text for many committee prints and some older CRS Reports. (Please note that LexisNexis Congressional is a distinct product and does not provide access to other LexisNexis databases.) Public Laws, United States Statutes at Large, and United States Code. Washington: Government Printing Office (GPO). [http://www.gpoaccess.gov/plaws/index.html] [http://www.gpoaccess.gov/uscode/index. html] Once Congress passes a bill, and the President signs it into law, it is assigned a number and published by the Government Printing Office, first as a slip law and later in annual volumes of the U.S. Statutes at Large. Full text of public laws and related documents are available electronically via GPO and LIS. Congressional staff can also access laws and legal documents via NEXIS and Westlaw in their Senate and some House Member offices. All laws of a general and permanent nature are eventually consolidated and organized (codified) by subject in the United States Code (revised every six years). The U.S. Code Annotated (St. Paul, MN, West), available in the La Follette Congressional Reading Room and the Senate and Rayburn Research Centers, reproduces the Code together with citations for judicial opinion, historical notes, digests, encyclopedia and other references, and other editorial aids. The U.S. Code Annotated The U.S. Code Annotated also includes a general subject index, indices in all volumes, useful tables, and continuous supplementation by pamphlet supplements, annual pocket parts, and replacement volumes to facilitate research. United States Code Congressional and Administrative News St. Paul, West Publishing. Semimonthly when Congress is in session; monthly at other times.
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Includes full text of all public laws, some of the legislative history documents, executive orders, Presidential Proclamations, administrative regulations, messages of the President, and popular names of laws. Current issues contain an index/digest of bills enacted.
CONGRESS, ELECTIONS, AND POLITICS A variety of reference works and CRS products cover Congress and the legislative process. This section discusses the standard printed reference sources on Congress available in the La Follette Congressional Reading Room and House and Senate research centers.
Overview of Congress and Activities Congress A to Z. 4th ed. Washington: Congressional Quarterly, 2003. In dictionary format, provides succinct entries on congressional procedures and vocabulary, such as appropriations bills, gerrymandering, legislative process, adjournment, profiles of past and present congressional leaders; brief histories of committees; and numerous other topics relevant to congressional activity and history. Detailed index. In similar format, CQ also publishes Elections A-Z 2nd ed., 2003) and The Presidency A-Z 3rd ed., 2003). Types of questions that can be answered: What do the House and Senate Parliamentarians do? How does the House Ways & Means Committee differ from the Appropriations Committee? What are the various leadership positions in the House and Senate? Can someone explain reapportionment and redistricting to my constituent? What is Congress’ role in amending the U.S. Constitution? CQ Weekly. Washington: Congressional Quarterly. Weekly. Useful summary of activities of Congress; factual and timely; full reports on the progress of major bills (“Status of Major Legislation”); voting records and activities of individual Members; congressional interaction with the executive; roll call votes included. CQ.com and CQ Weekly indexes are available on client computers in LCRR and research centers. Types of questions that can be answered: What are the characteristics of the freshmen elected to Congress in 2006? What is the background on the controversy over banking reform? Who and what is Member Q, who was just elected a week or two ago? What would the President’s budget allow for military defense? for pollution control? the federal prison system? Congressional Record. Washington: GPO. Daily when Congress is in session.
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Contains the edited transcript of the activities on the floor of the House and Senate. The “Daily Digest” section includes summaries of action in each chamber, committee hearings, bills signed, and committee meetings scheduled for the following day. The Record full text and the Index are searchable online via the LIS [http://www.congress.gov/]. Printed indices, searchable by Member’s name, bill number, and subject, are issued twice a month. Types of questions that can be answered: When was the most recent list of lobbyists published in the Record? My Member put an editorial in the Record two years ago; how can I find it? When was the last debate on the federal pay raise? Who voted against the President’s economic package in the Senate? Guide to Congress, 5th ed. Washington: Congressional Quarterly, 1999. Provides a comprehensive overview of the U.S. Congress, covering its history, congressional powers and functions, the legislative process, congressional procedures, and support agencies. Well organized and indexed.
Profiles of Members and Districts Almanac of American Politics. Washington: National Journal. Biennial. Informative, opinionated descriptions of states and districts; biographical information on Members; ratings of Members by various interest groups; Members’ votes on key issues. Similar in format to: Politics in America. Washington: Congressional Quarterly. Biennial. Descriptions of states and districts; biographical information on Members; key votes of Members; how interest groups rate Members. Types of questions that can be answered: How is Representative X rated by the various rating groups? Was the Member for or against the ban on chemical weapons? How much did Senator Y spend in his last election? What is the ethnic makeup of the first district of New Mexico? the state? How successful has Representative Z been in pushing programs for her district? Where does Senator X stand on approving the death penalty for drug-related murders? What has been the political situation in the first district of California in recent years? Biographical Directory of the American Congress, 1774-2005. Washington: Congressional Quarterly, 2005. Provides brief official biographical sketch of every Member of Congress, nearly 12,000 from 1789 through the 109th Congress. Also, for each Congress, gives complete listing, by state, of Senators and Representatives (including results of special elections or appointments due to death or resignation of an elected Member); dates of each session and of special sessions (if any); and key leadership. The Web version [http://bioguide.congress.gov] contains up-to-date biographical profiles.
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Types of questions that can be answered: Did Senator X from Wisconsin serve three consecutive terms; or did he lose an election? Who served as Representatives from New York in the 1930s? How many Longworths have served in the U.S. Congress? Congressional Directory. Washington: GPO. Biennial. General directory of Members, committees, and subcommittees, with home addresses of congressional officials and others in the legislative branch. Other useful information for congressional offices includes lists of embassies, foreign embassies and ambassadors in Washington, DC as well as American embassies and ambassadors abroad; statistical section with tables of votes casts and sessions of Congress; biographical information on judges, lists of federal courts; information on the Capitol and Capitol grounds buildings, including maps; names of press representatives and services. LCRR and the Senate Research Center have collections of old Congressional Directories. The current Directory is available on the Web: [http://www.gpoaccess.gov/cdirectory/index.html] Types of questions that can be answered: How many Supreme Court justices are over 70 years old? Who is the ambassador from Sweden, and what is his title? Has any session of Congress lasted longer than 365 days? Which Senator and Representative have served in Congress the longest? Who is in charge of the Capitol Page School? When was the Russell Senate Office Building built? Congressional Districts in the 2000’s. Washington: Congressional Quarterly, 2003. Reflecting 2000 census data and congressional redistricting, this work provides narrative descriptions of districts, including demography and economics, voting trends, major newspapers and television stations in the district, military installations, businesses, and other major employers. Congressional Yellow Book. Washington: Leadership Directories. Quarterly. Frequently updated directory of names, telephone numbers, addresses of Representatives, Senators, and staff; House and Senate offices, joint committees and staff; leadership and Member organizations; and congressional support agencies. For each state, provides district maps, lists state delegations, and gives zip codes by congressional district. Types of questions that can be answered: What is the phone number of the organization, Former Members of Congress? Who is the chief counsel of the Committee on Indian Affairs? What is the telephone number of the Congressional Hispanic Caucus? How many Members belong? Whom can I contact for a list of the Vietnam veterans in Congress?
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Staff and Congressional Office Information Almanac of the Unelected: Staff of the U.S. Congress. Washington: Almanac Publishing. Annual. In-depth biographical profiles of senior congressional staff of House and Senate leadership offices and committees. Includes photographs. Types of questions that can be answered: My art teacher’s husband works for the Senate Budget Committee. What is his position and was he the one who spoke at a recent budget briefing? A senior staff member on the Subcommittee on the Legislative Branch recently met with the Librarian of Congress; I know what he looks like but forgot his name. Congressional Staff Directory. Alexandria, VA: CQ Staff Directories. Three times per year. Directory of 16,000 people who run the legislative branch, with biographical profiles of 3,200 key congressional staff. Also includes jurisdiction of committees; lists of subcommittees and their staffs; district/state office addresses and telephones; 14,000 cities and counties with congressional districts (easy to refer mail); names, addresses, and telephone numbers of state governors. Types of questions that can be answered: In which congressional district is Beaver Dam, KY? Does the Senate Committee on Armed Services deal with naval petroleum reserves in Alaska? Where can I get some information about the staff director of the House Permanent Select Committee on Intelligence? Who is on the Joint Economic Committee? Setting Course: A Congressional Management Guide. Washington: Congressional Management Foundation, 2006. Offers ideas, models, and advice for managing a congressional office, including managing the Member’s transition to Congress; selecting committee assignments; hiring staff; developing an office budget and a first-term agenda; defining the Member’s role in the office; cultivating leadership skills; and selecting Washington and district office space. Also publishes Frontline Management, a Guide for Congressional District/State Offices; and biennial Senate and House staff employment and salary surveys.
Statistics on Congress and Politics America Votes; A Handbook of Contemporary American Election Statistics. NewYork: Macmillan. Biennial. Includes statistics by state of voting since 1945 for President, Senator, Representative, Governor; statistics by county and ward of the vote in the most recent election for President,
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Governor, Senator; and maps of each state, large cities, and congressional districts. Brief descriptions of political situation in each state. Vital Statistics on American Politics. Washington: Congressional Quarterly. Biennial. Provides statistical information, both historical and current, on Congress, political parties, elections and campaigns; the presidency, the executive branch, and the judiciary; political parties, elections and campaigns; mass media, public opinion, interest groups; foreign and military policy, social and economic policy; the Constitution and federalism. Includes an extensive “Guide to References for Political Statistics.” Vital Statistics on Congress. Washington: American Enterprise Institute. Biennial. Includes statistics on congressional elections, campaign finance, party membership characteristics, committees, staff, costs, level of activity, and voting.
FEDERAL GOVERNMENT: EXECUTIVE AND JUDICIAL Government Organization, Offices, and Functions United States Government Manual. Washington:, GPO. Annual. Basic handbook of the U.S. government; emphasis on executive branch, although legislative and judicial branches are also covered. Good descriptions of agencies, down to the bureau and major office level, giving top personnel, program responsibility, statutory authority, and enabling legislation. Identifies agencies abolished or transferred, and frequently used acronyms and abbreviations. Indexes of names, subjects, and agencies. [http://www.gpoaccess.gov/gmanual/browse-gm-00.html] Types of questions that can be answered: What is the chain of command at GAO? What agency did HHS supersede? Who is the regional administrator for OSHA in Dallas? What is a federal region? What is “Fannie Mae”? Where can I find an organization chart of the Nuclear Regulatory Commission? How can I find out more about the history of savings bonds? What is the legal basis for the National Security Council? Washington Information Directory. Washington: Congressional Quarterly. Biennial. Arranged by broad subject, lists the government agencies and congressional committees interested in the area, plus D.C.-based organizations, associations, etc. Also lists embassies and U.S. ambassadors; State Department country desks; labor unions; mayors of all cities over 75,000. For each state governor, gives complete address, telephone, and name of press secretary, lieutenant governor, secretary of state, and attorney general. Gives addresses of GPO bookstores and regional depository libraries. Types of questions that can be answered:
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Audrey Celeste Crane-Hirsch What organizations are working to make buildings more accessible to the handicapped? Which congressional committees have jurisdiction over drug abuse legislation? What is the biggest labor union? What if our office would like to send a mailing to organizations interested in trade? Where can I find out about doing business with the federal government?
Budget, Outlays, and Grants Budget of the United States. Washington: GPO. Annual. Multiple volumes. Contains the budget message of the President, a narrative of the proposed budget by function, and statistics for previous fiscal years and the next fiscal year. In addition, it contains statistical tables for receipts, outlays, deficits, debt, gross national product (GNP) by fiscal year, and budget percentages for many years, often since 1940. Types of questions that can be answered: Where can I find a pie chart for budget outlays and receipts? When was the budget last balanced? Where can I find the budget message of the President? What was the debt subject to limit in 1950, and what statute set that limit? What percent of the budget was spent on defense and what amount was spent on human resources for the years 1940-1990? What percent of next year’s budget is set aside for entitlements? Catalog of Federal Domestic Assistance. Washington: GPO. Annual. [http://www. cfda.gov] Extensive information about federal grants programs, including eligibility requirements and application procedures. Web version is full-text and updated throughout the year. Includes keyword searching and various indexes by department, agency, program, and subject, in addition to listings of state and regional federal information contacts. Types of questions that can be answered: Is there a federal program that would provide money for a firehouse? For the mayor of a small town, where can I find out what federal programs might fund local projects? Does the federal government give scholarships? Are there any project grants available for historic preservation? How can I get a summer job with the federal government?
Current Names and Numbers Carroll’s Federal Executive Directory. Washington: Carroll Publishing. New edition every other month.
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This has 75,000 entries which cover the executive office of the President, Cabinet departments, major federal administrative agencies, and Congress. Names, titles, addresses, phones, and fax numbers are listed by agency, office, or departments; names are indexed alphabetically; office functions and sub-agencies are also indexed. Carroll also publishes other useful directories, including ones covering government offices at the federal regional, state, county, and municipal levels. Types of questions that can be answered: Are there any federal information centers in our state? What offices in the government are concerned with solar energy? Who is the chief counsel for the Internal Revenue Service? Margaret Lamontagne works for the White House. What is her position? Federal Staff Directory. Alexandria, VA: CQ Staff Directories. Semiannual. Lists over 30,000 key federal executives and military leaders who draft regulations, interpret policy, disseminate information, authorize grants, and contract for goods and services. For each, gives job title, address, and telephone number; for the 2,600 top-level civilian and military authorities and senior assistants, gives biographies. Also available is the annual Judicial Staff Directory, which lists some 14,000 judges and staff who run the federal courts from the Supreme Court through the Circuit Courts of Appeal and District and Bankruptcy Courts and includes some 2,000 biographies. Federal Yellow Book: Who’s Who in Federal Departments and Agencies. Washington: Leadership Directories. Quarterly. Similar to the Federal Executive Directory (see above). Extensive listings of 35,000 staff by department and agency. Includes federal regional offices and maps of federal regions. Types of questions that can be answered: Who is the head of the Civil Division at the Justice Department? What is the telephone number of the Iraq desk at the State Department? Are there any federal regional offices in our state? Who is in charge of GPO? Is there a telephone number at HUD for information on grants? Whom can I talk to in HHS about what is being done in AIDS research?
Regulations and Regulatory Agencies Federal Register and Code of Federal Regulations. Washington: GPO. [http://www. gpoaccess.gov/fr/index.html] [http://www.gpoaccess.gov/cfr/index.html] Administrative rules and regulations and other notices issued by federal departments and agencies are published on a regular basis in the Federal Register (published daily except Sunday, Monday, and the day following a legal holiday). These include proposed as well as final rules and regulations, schedules of agency hearings and miscellaneous agency announcements, and presidential proclamations and executive orders. Final rules and regulations subsequently appear, arranged by broad subject, in the Code of Federal
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Regulations (revised once a year on a quarterly basis). LCRR and research centers maintain print collections of FR and CFR. Federal Regulatory Directory. Washington: Congressional Quarterly. Provides background information on federal agencies which issue and enforce regulations, including each agency’s authority to regulate, how regulations are published, and information on recent activities. Also gives biographies of commissioners and board members; telephone contacts in regional agencies; and congressional oversight committees. Types of questions that can be answered: How are handguns regulated? How can you register a complaint against a household moving company? Which agency monitors asbestos usage? Are there federal standards for private pensions? Are there any truth-in-advertising standards for seeds? Who regulates hazardous materials?
The President CQ Guide to the Presidency, 3rd ed. Washington: Congressional Quarterly, 2002. Explains the origins, evolution, and contemporary workings of the presidency. Included are excerpts from 40 documents significant to the presidency, a complete listing of Cabinet members from the administrations of Presidents Washington to Bush, and charts showing Gallup poll ratings of the Presidents from Truman onwards. The highest court of the land is given similar historical and analytical treatment in the CQ Guide to the U.S. Supreme Court, 4th ed. Washington, Congressional Quarterly, 2004. Weekly Compilation of Presidential Documents. Washington: GPO. Weekly, with quarterly, semiannual, and annual indexes. [http://www.gpoaccess.gov/wcomp/index.html] Provides transcripts of presidential messages to Congress, executive orders, announcements of appointments, nominations, resignations and retirements, speeches, and other material released by the White House. Source for such information as the dates on which the President signed or vetoed legislation. Public messages, speeches, and statements of the President are later compiled in Public Papers of the Presidents of the United States (Washington, GPO). National Archives provides a website for Codification of Presidential Proclamations and Executive Orders from1945-1989 (from President Truman through President Reagan) at [http://www.archives.gov/federal-register/codification/codification. html]. The National Archives also provides a website for Executive Orders Disposition Tables; it includes the text of executive orders since 1933 and their subsequent histories. [http://www.archives.gov/federal-register/executive-orders/disposition.html]
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DIRECTORIES OF ORGANIZATIONS, CORPORATIONS, AND STATE AGENCIES General Encyclopedia of Associations. Detroit: Gale Group. Annual. Standard directory of national and international membership organizations covering all subject areas, including fraternal, social, business, veterans, public affairs, and cultural associations. It is possible to look up an organization by name or keyword and find a brief description of the group, current address, telephone number, chief officer, publications, and conventions. The subscription Web version of this directory (Associations Unlimited) is bookmarked for congressional staff use in LCRR and research centers. Types of questions that can be answered: What is the address of the National Organization for Women? I am interested in proposals to change the calendar; are there any groups I could contact? Where can a constituent who wishes to adopt a child from abroad get information? Where would one get lessons in flying a hot air balloon? I have a gifted child; what groups can I contact for help and information? Encyclopedia of Governmental Advisory Organizations. Detroit: Gale Group. Annual. A guide to over 6,000 permanent, continuing, and ad hoc U.S. presidential, congressional, and public advisory committees; interagency committees; and other government-related boards, panels, task forces, commissions, conferences, and other similar bodies serving in a consultative, coordinating, advisory, research, or investigative capacity. Includes active and terminated bodies. Descriptions include history and authority, program, membership, staff, address, telephone number, and fax number if available. National Trade and Professional Associations. Washington: Columbia Books. Annual. Describes about 7,000 national trade associations, labor unions, professional, scientific, or technical societies, and other national organizations composed of groups united for a common purpose. Gives address, telephone and fax numbers, membership and staff sizes, president or chief executive officer, annual budget, publications, and annual meetings. Public Interest Group Profiles (formerly Public Interest Profiles). Washington: Congressional Quarterly. Biennial. Information about more than 200 influential public interest and public policy organizations in areas such as the environment, consumer affairs, community/grassroots interests, and think tanks. Gives budget data and funding sources, board of directors, publications, current concerns, methods of operation, phone and fax numbers, conferences, and political action committee information. Washington Information Directory. Washington, Congressional Quarterly. Annual. See entry above in the section on the Federal Government: Executive and Judicial.
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Political Action Committees and Lobbyists Almanac of Federal PACs. Washington: Amward Publications. Biennial. Based on campaign finance statistics maintained by the Federal Election Commission, this directory includes every political action committee which contributed $25,000 or more to candidates who were seeking election in the year covered by the volume. Also identifies political action committees which contribute lesser amounts to federal candidates but are “affiliated” with other PACs. Congressional Record. Washington: GPO. Daily when Congress is in session. New lobbyists’ registrations and reports of lobbyists’ receipts and expenditures of the previous quarter are published four times each year by the House Records and Registration Office. For a complete picture of currently active lobbyists, reports for the most recent four quarters should be checked. The lists can be located through the indexes under “Lobbying.” CQ Weekly also publishes a selective list of lobbyists, based on the official lobby registrations, once a month in an issue of the magazine. Washington Representatives. Washington: Columbia Books. Annual. Lists some 17,000 individual, law and public relations firms, as well as companies and interest groups with representatives in Washington, D.C. Information is taken from lobby registration files with the Clerk of the House and Secretary of the Senate; foreign agent registrations at the Department of Justice; the Federal Election Commission; annual company reports to the various regulatory agencies; and annual questionnaires sent to each Washington area office listed. Types of questions that can be answered: Who represents General Dynamics on Capitol Hill? What clients are represented in Washington by the lobbying firm Timmons and Co.? What American law firms represent Japanese business interests in Washington? What is the Congressional Accountability Project, and who speaks for it in dealings with the U.S. government?
Business Directories The La Follette Congressional Reading Room and each research center has a selection of standard business directories, including Standard and Poor’s Register of Corporations (New York: Standard and Poor’s, Annual), Directory of American Firms Operating in Foreign Countries (New York: Uniworld, Irregular), Standard Directory of Advertisers (New York; National Register, Annual), LexisNexis Corporate Affiliations (New Providence, NJ: LexisNexis Group, Annual).
Education and Internships Other directories of specialized interests useful for information contacts and constituent referrals are located in each CRS reader services facility. In the area of education, the HEP Higher Education Directory (Falls Church, VA: Higher Education Pubs., Annual) not only
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lists colleges and universities by state (with brief pertinent information), but gives the congressional district for each institution. Some other directories, such as Internships: Petersons ’s Internships (Princeton: Peterson’s Guides, Annual), The Official Guide to U.S. Law Schools (Newton, PA: Law School Admission Services, Annual), and Medical School Admission Requirements (Washington: Association of American Medical Colleges, Annual) are also included in the Education collection in each Reader Services facility.
Media Directories Media directories (covering both print and broadcasting) are also frequently consulted by congressional staff and interns. Each CRS collection includes the Broadcasting & Cable Yearbook (New Providence, N.J.: R.R. Bowker, Annual), Editor and Publisher International Yearbook (New York: Editor and Publisher, Annual), Gale Directory of Publications and Broadcast Media (Detroit: Gale Group, Annual), Hudson’s Washington News Media Contacts Directory (Rhinebeck, NY: Hudson’s, Annual), Standard Directory of Periodicals (New York: Oxbridge; Annual), and News Media Directory (New Providence, N.J.: R.R. Bowker, Annual). Some are arranged by geographic areas (state, city), such as the Gale Directory; others have subject arrangement, such as the Standard Directory of Periodicals.
State and Local Directories Sometimes a constituent can best be referred to a state or local agency or organization — for example, to register consumer complaints or get funds for a local project. Directories to help identify appropriate sources include Carroll’s County, Municipal, State, and Federal Regional Executive Directories (Washington: Carroll Publishing, Quarterly); State Directory I-Elective Officials; State Directory II- Legislative Leadership, Committees and Staff; State Directory III- Administrative Officials (Lexington, KY: Council of State Governments, Annual); State and Regional Associations of the United States (Washington: Columbia Books, Annual); and the State Yellow Book; Who’s Who in the Executive and Legislative Branches of the 50 State Governments (New York: Leadership Directories, Quarterly).
BIOGRAPHICAL INFORMATION (See also the Congress and Federal Government sections of this chapter) Biographical directories generally give a brief outline of the person’s life, the familiar “who’s who” paragraph, including date of birth and family history, some education or academic degrees, a job or position history, and a current address. A work such as Current Biography (see below) provides a more extensive, discursive profile. For additional information, do a periodical or newspaper literature search for articles on the person. Some standard biographical directories include: Almanac of the Unelected: Staff of the U.S. Congress. Lanham, MD: Bernan Press, Annual.
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The Almanac contains in-depth, profiles of senior congressional committee staff. Each entry provides detailed contact, political, and professional information for each staffer. Current Biography. New York: H.W. Wilson, Monthly except August with annual cumulations. Objective and well-documented biographical profiles of prominent individuals in most fields. Includes a photograph of each and citations to other bibliographical articles. Web subscription available at congressional client computers in LCRR and research centers, from 1940 to within a month or two of the current date. Martindale-Hubbell Law Directory. New York: Martindale-Hubbell, Annual. Source of information for and about the legal community, providing profiles of lawyers and law firms. Now has an alphabetical index to all names in the geographically-arranged, multi-volume directory. [http://www.martindale.com]. Who’s Who Among African Americans. Detroit: Gale Group, Annual. Biographies of prominent blacks in all areas of achievement. Includes geographic and occupations indexes, reflecting U.S. and international entries in 150 fields, from accounting to zoology. Who’s Who in America. Chicago: Marquis, Biennial. Americans of significant position or achievement in the legislative, executive, and judicial branches of government; high ranking military officers; officials of state governments; officials of principal cities; leading government officials of Canada and Mexico; principal officers of major national and international businesses; ranking administrative officials of major universities and colleges; heads of leading philanthropic, cultural, educational, professional, and scientific institutions and associations; selected members of honorary organizations; chief ecclesiastics of the principal religious denominations; and recipients of major national and international awards. For each, includes vital statistics, education, career summary, writings and creative works, awards, association memberships, home and office addresses. Marquis also publishes regional volumes for specific geographic areas of the United States (Who’s Who in the East, ... the Midwest, ... the South and Southwest, and ... the West); a retrospective series Who Was Who in America; an international Who’s Who in the World; and numerous directories by specific occupation or group. These last include Who’s Who in American Law, ... in Finance and Industry, ... in American Politics, and ... of American Women. Finally, the annual Index to Marquis Who’s Who Books lists the specific Marquis Who’s Who directory in which a listee’ s biographical sketch can be found.
FOREIGN COUNTRIES AND INTERNATIONAL AFFAIRS Background Notes. Washington: GPO, Irregular. For each country of the world, the U.S. State Department prepares briefing reports for its staff going abroad. The profile summarizes geographical and population characteristics; history; government, major political parties, and political conditions; the economy; foreign relations; travel notes; and bibliography of additional sources. Currently, LCRR and research centers rely on the Web version of this source for up-to-date information. [http://www.state.gov/r/pa/ei/bgn/].
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Chiefs of State and Cabinet Members of Foreign Governments. Springfield, VA: National Technical Information Service, Bimonthly. Current listing of world leaders, prepared by the Central Intelligence Agency. [https://www.cia.gov/cia/publications/chiefs/index.html/]. The Europa World Year Book. London: Europa, Annual. Provides detailed information on the political, economic, and commercial institutions of the world. Contains information about international organizations and detailed country information. [http://www.europaworld.com]. Foreign Consular Offices in the United States. Washington: GPO, Quarterly. Complete, official listing of consular offices in the United States, with names of recognized consular officers. Since regulations affecting both trade and travel are the particular province of the consular service of the nations involved, reliable information on entrance requirements, consignments of foods, details of transshipment, and, in many instances, suggestions on consumer needs and preferences may be obtained at foreign consular offices throughout the United States. [http://www.state.gov/s/cpr/rls/fco/]. Legislation on Foreign Relations Through [year]. Washington: GPO, Irregular. Committee print which contains legislation and related material frequently referred to by the Committees on Foreign Relations of the Senate and Foreign Affairs of the House of Representatives, amended to date and annotated to show pertinent history or cross references. Volumes I, II, III, and IV contain legislation and related material; volume V contains treaties. [http://www.gpoaccess.gov/congress/house/intrelations/index.html]. Treaties in Force: A List of Treaties and Other International Agreements of the United States in Force on [date]. Washington: GPO, Annual. Provides information on treaties and other international agreements to which the United States has become a party and which are carried on the records of the Department of State as being in force as of January of each year. [http://www.state.gov/s/l/treaty/treaties]. The World Factbook. Washington: Central Intelligence Agency, Annual. The Factbook is prepared by the Central Intelligence Agency for the use of U.S. government officials. Information is provided by various agencies of the federal government, including the Bureau of Labor Statistics, Bureau of the Census, Defense Intelligence, Department of State, Fish and Wildlife Service, Maritime Administration, National Imagery and Mapping Agency, and other public and private sources. [http://www.odci.gov/cia/ publications/factbook/index.html].
QUICK FACTS, STATISTICS, AND QUOTATIONS Facts and Statistics Chase’s Calendar of Events. Chicago: Contemporary Books, Annual. Almanac of holidays and events, including national and state days, events sponsored by organizations, historic anniversaries, folkloric events, birthdays, religious observances, and holidays for which Presidential Proclamations are issued. It provides a brief description of each holiday, as well as the sponsoring group or agency, legislation or proclamation which created it. In addition, Chase’s includes a number of other useful listings, including national
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days of the world, U.S. hurricane names for the current year and future years, major awards (such as Oscars and Pulitzer Prizes) presented for the most recent year available, and a perpetual calendar. Facts on File: The Indexed Record of World Events. New York: Facts on File, Weekly with annual and five-year cumulations. Digest of and detailed index to world news information. Provides a factual, detailed, and up-to-date source for answers to questions on current events. Excellent for news story summaries, names, and date verification. Also cover deaths, science, sports, medicine, education, religion, crime, books, plays, films, and persons prominent in the news. Statistical Abstract of the United States. Washington: GPO, Annual. Social, political, and economic statistics of the United States — the first place to look for almost any kind of numbers, covering all U.S. subjects. Useful compilation of every major statistical series collected by the federal government, state governments, and national organizations. Subject arrangement, with detailed index. Much information broken down by state; see “state data (for individual state)” in index for complete list. Source to contact if more information is needed given with each table. Types of questions that can be answered: How many bills and resolutions were introduced in the last Congress? What are the statistics on cigarette smoking in the United States? What have been the dollar costs of American wars? What percentage of registered voters ages 18-20 voted in 1992, 1996, 2000, 2004? How many physicians in the United States graduated from foreign medical schools? What American industries are being acquired by foreign investors? What is the average salary for a school teacher? What is the highest elevation in the USA? The lowest? The World Almanac and Book of Facts. New York: World Almanac, Annual. One of several general annual almanacs, a useful compendium of current factual information and statistics in all subject areas. Includes facts on U.S. states and cities; foreign countries; flags and maps in color; sports; chronology of previous year, etc. Types of questions that can be answered: How many people in the world speak Japanese? What does the law on succession to the presidency say? Is a liter bigger than a quart? What have been the leading mutual funds historically? Have third parties ever really influenced the presidential election? How far is it between Chicago and New York? World Book Encyclopedia. Chicago: World Book, Annual. Standard reference encyclopedia in LCRR and Centers, along with the Encyclopedia Americana and Encyclopaedia Britannica. Short articles supplemented with chronologies of important dates and events, lists of important figures, statistical information, tables, and charts. Includes bibliographies and detailed index volume.
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Quotations To assist congressional staff and Members searching for appropriate quotations to use in their writing or speeches, or to verify some familiar sayings, LCRR and the research centers include an extensive selection of quotation books. These collections are intended primarily for user self-service. General quotation compilations cover a broad range of subjects. Such works include: Respectfully Quoted: A Dictionary of Quotations Requested from the Congressional Research Service (Washington: Library of Congress, 1989). Bartlett’s Familiar Quotations: A Collection of Passages, Phrases, and Proverbs Traced to Their Sources in Ancient and Modern Literature. 1 7th ed. (Boston: Little, Brown, 2002) Oxford Dictionary of Humorous Quotations (New York: Oxford University Press, 2002) The Quote Verifier: Who Said What, Where, and When (New York: St. Martin’s Griffin, 2006) Other compilations of quotations focus on specific subjects, such as: Contemporary Quotations in Black (Westport, CO: Greenwood Press, 1997) Encyclopedia of Supreme Court Quotations (Armonk, NY: M.E. Sharpe, 2000) Political Quotations: A Collection of Notable Sayings on Politics from Antiquity Through 1989 (Detroit: Gale Research, 1990) Will the Gentleman Yield? The Congressional Record Humor Book (Berkeley, CA: Ten Speed Press, 1987) The Bible According to Mark Twain: Writings on Heaven, Eden, and the Flood (Athens: University of Georgia Press, 1995) A Dictionary of Quotations from Shakespeare: A Topical Guide to Over 3,000 Great Passages from the Plays, Sonnets, and Narrative Poems (New York: Dutton, 1992) Quotations from Abraham Lincoln (Chicago: Nelson-Hall, 1977) The Wit & Wisdom of Benjamin Franklin: A Treasury of More than 900 Quotations and Anecdotes (New York: HarperCollins, 1995)
In: Congress of the U.S: Commitees, Rules and Procedures ISBN 978-1-60456-416-7 Editor: Sela G. Thomason © 2009 Nova Science Publishers, Inc.
Chapter 7
ENFORCEMENT OF CONGRESSIONAL RULES OF CONDUCT: AN HISTORICAL OVERVIEW* Mildred Amer SUMMARY The Constitution vests Congress with broad authority to discipline its Members. However, only in the past 40 years have both houses established formal rules of conduct and formal disciplinary procedures where allegations of illegal or unethical conduct are investigated and punishment is meted out. Previously, Congress dealt with misconduct on a case-by-case basis and relied on the decisions of voters as the ultimate authority in questions of wrongdoing. In 1964, the Senate first established a permanent ethics committee, the Select Committee on Standards and Conduct, which was renamed the Select Committee on Ethics in 1977. The House first established a permanent ethics committee, the Committee on Standards of Official Conduct, in 1967. In 1968, each chamber adopted rules of conduct. Since the committees were established, two Representatives have been expelled following felony convictions, 22 Representatives have been censured, and eight Representatives have been reprimanded; nine Senators have been censured, and one Senator was reprimanded. In recent years, the effectiveness of the two congressional ethics committees has been debated. Numerous proposals made within and outside of Congress have suggested alternative means to enforce congressional rules of conduct, including the use of an outside, independent entity composed of non-Members. This chapter describes the evolution of congressional enforcement of congressional rules of conduct and summarizes the disciplinary action taken by the House Committee on Standards of Official Conduct and the Senate Select Committee on Ethics. It also selectively discusses some recent changes and proposals for an independent enforcement entity. *
This is an edited, excerpted and augmented edition of a CRS Report for Congress publication, Order Code RL30764, dated July 24, 2007.
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For additional information, please refer to CRS Report RL30650, The Senate Select Committee on Ethics: A Brief History of Its Evolution and Jurisdiction, by Mildred Amer; CRS Report 98-15, House Committee on Standards of Official Conduct: A Brief History of Its Evolution and Jurisdiction, by Mildred Amer; and CRS Report RL31382, Expulsion, Censure, Reprimand, and Fine: Legislative Discipline in the House of Representatives, by Jack Maskell.
BACKGROUND The authority of Congress to discipline its Members is found in Article I, Section 5 of the Constitution, which states in part, "Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member." Through the years, disorderly behavior has become synonymous with improper conduct such as support of rebellion, disloyalty, corruption, and financial wrongdoing, particularly for personal gain. However, only within the past 40 years has Congress systematically undertaken self- discipline related to conduct. The Constitution in Article I, Section 6 also provides, "They [Members of Congress] shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during the Attendance at the Session of their respective Houses and in going to and returning from the same... ." According to the Constitution Annotated, this clause "does not apply to service of process...in criminal cases. Nor does it apply to arrest in any criminal case. The phrase 'treason, felony or breach of the peace' is interpreted to withdraw all criminal offenses from the operation of the privilege."1 (Footnotes omitted.) In other words, Members of Congress are not exempt from prosecution while in office for violations of federal or state criminal law. This chapter traces the evolution of congressional rules of conduct and their enforcement against Members by the House and Senate. It also traces the evolution of the House and Senate Ethics Committees, and describes some of the recent changes, implemented or proposed, in congressional enforcement of rules of conduct. The chapter does not deal with changes to federal or state criminal law or with criminal prosecutions of Members of Congress.2
Creation of the Ethics Committees The House and Senate did not begin to more consistently exercise disciplinary powers against Members until the mid- 1960s. Prior to the creation of the Senate Select Committee on Standards and Conduct in 1964 and the House Committee on Standards of Official Conduct in 1967, there were no continuing mechanisms for congressional self-discipline. When allegations of misconduct were investigated, the investigation was often conducted by an ad hoc or select committee created for that purpose. Sometimes allegations were considered by the House or Senate without prior committee action. Publicity and the test of reelection were considered the major forms of redress for allegedly unethical behavior in Congress.3
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According to Senate Historian Richard Baker, "For nearly two centuries, a simple and informal code of behavior existed. Prevailing norms of general decency served as the chief determinants of proper legislative conduct."4 Baker further noted that for most of its history, "Congress has chosen to deal, on a case-by-case basis, only with the most obvious acts of wrongdoing, those clearly 'inconsistent with the trust and duty of a member.5 Two books published in the early 1950s criticized the failure of Congress to investigate alleged misconduct by Members or to take disciplinary action when allegations were proven true.6 Congress was accused in these books of avoiding responsibility by leaving the remedies for wrongdoing in the hands of the electorate. The authors noted the public's distrust of public officials and blamed Members of Congress, who never requested an investigation of colleagues' alleged misconduct. The opposing view was argued by Representative Sam Rayburn, House Speaker (1940-1947, 1949-1953, and 1955-1961), who espoused the dominant view in Congress at that time — the ethics of a Member should be judged not by his peers, but by the voters.7 As late as the 1960s, political scientist Robert Getz discussed the often- described "club spirit" that existed in Congress as well as congressional adherence to unwritten norms of conduct vis-à-vis its reluctance for self-discipline. He credited "the combination of historical precedent, the fear of partisan motivations, and the requirement of functioning in an atmosphere of mutual respect and cooperation as creating the view through the mid-1960s that Congress was not the forum before which the membership should be disciplined."8 Through the years, perceptions of wrongdoing or conflicts of interest by Members of Congress have changed. What might be viewed today as blatant impropriety could have been an accepted norm or simply ignored years ago. For example, when Daniel Webster was chair of the Senate Finance Committee (18331837), he was also on the payroll of the Bank of the United States. However, very few colleagues criticized him for that or for his practice of going from the Senate to the Supreme Court, which was then housed in the Capitol, to argue cases in which he had a legislative or financial interest. According to Senate Historian Baker, Webster made no effort to keep his business ties a secret.9 Senator Robert Kerr of Oklahoma (1949-1963), a gas and oil millionaire, was blunt about the correspondence of his interests and those of his constituents. He was reported to have said that these constituents would not send anyone to Washington who had no community of interest with them since that person "wouldn't be worth a nickel."10 In the mid-1940s, concerns were first heard in the contemporary era over the lack of specific standards of conduct and requirements for public fmancial disclosure in any of the three branches of government.11 There was also criticism of Members of Congress for supplementing their salaries with outside income.12 In 1946, during the 79th Congress, Senator Wayne Morse of Oregon introduced S.Res. 306, the first public fmancial disclosure legislation. His resolution, which would have applied to Senators, was predicated on the "Caesar's-wife principle" that Members' behavior should be above suspicion.13 Senator Morse continued to introduce his measure into the 1960s, expanding it to include all three branches of government, and gaining support from Senators Paul Douglas and Clifford Case and others.14 President Harry S Truman also sent a message to Congress in 1951 recommending public disclosure of personal finances by senior members of all three branches of government.15 In 1951 during the 82nd Congress, a subcommittee of the Senate Labor and Human Resources Committee, chaired by Senator Douglas, held hearings on S.Con.Res. 21, a
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proposal by Senator J. William Fulbright, for an ethics commission of private citizens appointed by the Speaker of the House and the President pro tempore of the Senate.16 Though the Fulbright proposal was not adopted, it was endorsed by the Douglas subcommittee, which studied and made recommendations on a wide range of other governmental ethics issues, including financial disclosure, lobbying by former Members of Congress, the cost of campaigning, honoraria, and the practice of representing constituent concerns before executive agencies.17 During the 85th Congress in 1958, Congress for the first time adopted a general Code of Ethics for Government Service for officials and employees in the three branches of Government. Although initially proposed in 1951 by Representative Charles Bennett, the impetus for adoption was a House investigation of presidential chief of staff Sherman Adams, who was alleged to have received valuable gifts from an industrialist being investigated by the Federal Trade Commission.18 The standards in the 10-point code are still recognized in the three branches of government and have been cited in congressional disciplinary cases, although they were adopted by congressional resolution rather than law and therefore are not legally binding.19 In the 1960s, allegations of misconduct against Bobby Baker, who was secretary to the Senate majority, and Representative Adam Clayton Powell, and subsequent investigations, caused Members of Congress to voice concerns over the lack of specific congressional standards of conduct and means of enforcing congressional self-discipline.20 Subsequently, the Senate created the Select Committee on Standards and Conduct 1964 and the House established the Committee on Standards of Official Conduct in 1967.21 In 1968, the House and the Senate each adopted, as part of their standing rules, the first conduct and financial disclosure regulations for Members, officers, and designated employees.22 House and Senate rules give the two ethics committees the authority to investigate allegations of wrongdoing by Members, officers, and employees; adjudicate (judge) evidence of misconduct and recommend penalties, when appropriate; and provide advice on actions permissible under the congressional codes of conduct.23
Expulsion and Censure of Members of Congress Expulsion is the only punishment expressly mentioned in the Constitution, but the Constitution gives each house the authority to "punish its Members for disorderly Behavior." Of 29 expulsion cases in the history of the Senate, 15 Senators have been expelled: one in 1797, and 14 during the Civil War for "support of rebellion."24 Of 29 House expulsion cases, five Representatives have been expelled: three Representatives were expelled during the Civil War; one Representative was expelled in 1980, following his conviction in the Federal Bureau of Investigation's Abscam sting operation; and one Representative was expelled in 2002 following his conviction for bribery, racketeering, fraud, and tax evasion. Other punishments have been used to discipline Members, including censure, the most serious punishment short of expulsion. Nine Senators and 22 Representatives have been censured as a punishment for wrongdoing, ranging from assault to obstruction of the legislative process to financial misconduct. In addition, eight Representatives have been reprimanded by the House since 1976, when this punishment was first used as a sanction. One
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Senator has been reprimanded by the Senate Ethics Committee through a letter from the committee. Reprimand is considered a less severe punishment than censure.25
HOUSE COMMITTEE ON STANDARDS OF OFFICIAL CONDUCT26 In the 110th Congress, the House Committee on Standards of Official Conduct is composed of 10 Members, five from each party. The majority of the committee's work is advisory and is performed by its Office of Advice and Education, which provides information and guidance to House Members, officers, and employees on House rules and standards of conduct applicable in their official capacities.27 Pursuant House Rule X, clause 5(a)(4)(A) and the Ethics Reform Act of 1989 (P.L 101194, 103 Stat. 1774-1776), the committee's investigative and adjudicative functions are "bifurcated," or separated.28 At the beginning of each Congress, the Speaker and the minority leader appoint a 20-person pool of Members (10 from each party) not serving on the House Standards of Official Conduct Committee, who are then to be available to serve on any investigative subcommittee formed during that Congress. An investigative subcommittee is the initial phase of the bifurcation process. If such a subcommittee finds a violation of the House rules has occurred and transmits a Statement of Alleged Violations (formal charges) to the chair and ranking member of the House Standards Committee, the committee chair is then required to appoint an adjudicative subcommittee. The members of this subcommittee are those Standards of Official Conduct Committee members who were not members of the investigative subcommittee and also the chair and ranking member of the committee. This subcommittee judges the evidence in the Statement of Alleged Violations and recommends sanctions, if the subcommittee concludes they are warranted. Complaints of House rules violations can only be filed with the committee by a Member of the House. Complaints filed by individuals who are not Members must have a Member of the House certify in writing that the information is in good faith and warrants consideration by the committee. Prior to 1997, members of the public (under certain conditions) as well as Members of the House could file a complaint against a Member, officer, or employee of the House. That changed in September 1997 when the House amended the rule governing complaints filed by individuals who are not Members to the current process.29 The House, by resolution, may direct the Standards of Official Conduct Committee to conduct a specific investigation. There is also a "statute of limitations" for investigations.30
Investigations The first disciplinary case acknowledged by the committee occurred in 1975 and resulted in the reprimand of a Member the following year.31 Since then, seven other Members have been reprimanded by the House, and the committee has acted publicly on cases involving approximately 65 other Representatives. The results ranged from the expulsion of two Members, to censure, admonishment, rebuke, and "Letters of Reproval" and "Letters of Admonition."32 Some 21 Members have left the House after court convictions, after inquiries
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were initiated, or after charges were brought by the committee, but before House action could be completed. Departure from the House ends a cases since the House does not have jurisdiction over former Members. In some cases, no inquiry was conducted, or allegations were dismissed. The committee has also conducted wide-ranging inquiries involving more than one Member. In the 102nd Congress (1991-1993), it considered allegations involving House post office operations as well the Member payroll-disbursing office and checking-account service known as the "House Bank."33 In the latter case, the committee found 325 current or former Members had overdrafts from the bank during the 39-month period of review, but no further action was taken by the House against Members. The committee formed a task force to review accusations about the post office, but took no additional action. Previously, it had deferred any action in the post office matter at the request of the Department of Justice, which prosecuted several sitting and former Members. The committee also investigated allegations involving House pages, so-called phantom voting by absent Members, improper alterations of House documents, and improper political solicitations.34
Recent Major Procedural Changes In February 1997, the House established a 10-member Ethics Reform Task Force to review the existing House ethics process and recommend reforms.35 Co-chaired by Representatives Robert. Livingston and Benjamin Cardin, the task force held hearings and issued a report.36 The House on September 18, 1997, adopted H.Res. 168, after amendment, incorporating recommendations of the Ethics Reform Task Force.37 The new rules that the House adopted: •
• •
•
•
•
changed the way individuals who are not Members of the House file complaints with the committee by requiring them to have a Member of the House certify in writing that the information is submitted in good faith and warrants consideration by the committee;38 decreased the size of the Standards Committee to 10 members from 14; established a 20-person pool of Members (10 from each party) to supplement the work of the Standards Committee as potential appointees to investigative subcommittees that the committee might establish;39 required the chair and ranking minority member of the Standards Committee to determine within 14 calendar days or 5 legislative days, whichever comes first, if the information offered as a complaint meets the committee's requirements;40 allowed an affirmative vote of two-thirds of the members of the Standards Committee or approval of the full House to refer evidence of law violations disclosed in a committee investigation to the appropriate state or federal law enforcement authorities;41 provided for a nonpartisan, professional Standards Committee staff; and
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allowed the ranking minority member on the Standards Committee to have the opportunity to place matters on the committee's agenda.
The rules of the House adopted for the 109th Congress on January 4, 2005, included several new provisions affecting the committee's investigative procedures.42 The changes required the committee to notify any Member, officer, or employee whose conduct is referenced in a complaint against another Member, officer, or employee.43 In addition, unless the chairman or ranking member placed a complaint on the committee's agenda within 45 days of receipt, the committee was no longer required to act on such complaint.44 The new provisions, however, were rescinded and the former ones reinstated on April 27, 2005.45 With the restoration of the original rule for action on a complaint, inaction by the chairman or ranking member on a properly filed complaint within 45 days automatically sends the complaint to an investigative subcommittee (House Rule XI, clause 3(k)). At the beginning of the 110th Congress, on January 31, 2007, House Speaker Nancy Pelosi and Republican Leader John Boehner established a special task force on ethics enforcement to consider whether Congress should create an outside enforcement entity.46 Chaired by Representative Michael Capuano, the task force is also considering proposals to allow non-Members to file complaints with the Committee on Standards of Official Conduct against a Member, officer, or employee of the House and to create a panel of non-Members to determine which complaints merit consideration by the committee.47 During the 110th Congress, the House also passed a resolution requiring the Committee on Standards to act within 30 days when a Member of the House is indicted or otherwise formally charged with criminal conduct in a court of the United States.48 If the committee does not empanel an investigative subcommittee to review the allegations, it must submit a report to the House describing why it has not done so and detailing what actions, if any, it has taken in response to the allegations.
SENATE SELECT COMMITTEE ON ETHICS49 Like its House counterpart, the Senate Ethics Committee in the 110th Congress is bipartisan. It is composed of six Members. It, too, has a disciplinary function as well as an advisory one, although it does not have a formal Office of Advice and Education. Unlike the House committee, the Senate Ethics Committee does not separate its investigative and adjudicatory functions, and it has no "statute of limitations" for investigations of alleged past violations.50
Investigations Since its creation in 1964, the Senate Select Committee on Ethics has acknowledged through press releases or committee documents that it has considered allegations involving 36 Senators, all but three of which occurred after 1977.51 a result, two Senators resigned before expected expulsion (one for a bribery conviction and the other because of sexual misconduct charges and alterations to subpoenaed documents); one Senator was censured by the full
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Senate; and two were denounced by the full Senate (a form of censure) for financial misconduct. One Senator was rebuked by the Senate Ethics Committee for improper acceptance of gifts, and one Senator was "severely admonished" by the committee. These latter actions were accomplished through letters to the Senators from the committee and through press releases. One Senator, involved in the case known as "Keating Five," was reprimanded by the Ethics Committee. The other four Senators in the latter case were criticized in written statements from the committee for showing poor judgment and giving the appearance of acting improperly.52 In some of the 36 cases acknowledged by the Ethics Committee, complaints were dismissed or no disciplinary or official action was taken by the committee or the Senate.53 Wide ranging inquiries/investigations involving more than one Senator and announced by the Ethics Committee dealt with special car-leasing arrangements for Senators, the introduction of legislation favorable to Chinese seamen, alleged illegal campaign contributions from the Gulf Oil Company, alleged Korean influence peddling, the unauthorized disclosure of classified information about the Senate's consideration of the Panama Canal Treaty, and several discrimination issues.54 No disciplinary action was taken in any of those cases.
Recent Major Procedural Changes In 1993, the Senate established the bipartisan Senate Ethics Study Commission to study the procedures of the Select Committee on Ethics55 In March 1994, the commission issued its final report and recommendations.56 The recommendations languished, however, until the Senate adopted S.Res. 222 on November 5, 1999.57 S.Res. 222 streamlined the Senate's ethics enforcement process and requires the committee to educate Members, officers, and employees about the laws, rules, and regulations applicable in their official duties. The major provisions/changes are summarized here: •
•
•
The previous multi-stage process of an "initial review" before a "preliminary inquiry" was replaced by the single-phase "preliminary inquiry." If there is substantial evidence of a violation, charges are issued and an "adjudicative review" is conducted to determine the merits of charges and appropriate punishment. This phase may include a hearing. The changes did not affect the ability of outside groups to file allegations against a Member, officer, or employee of the Senate. The changes provided a uniform set of potential sanctions for rules violations to be used alone or in combination.58 These sanctions include financial restitution, referral to a party conference (regarding seniority or positions of responsibility), censure, and expulsion. The Ethics Committee retained the flexibility to propose other penalties and was authorized to issue a reprimand to an individual without his or her consent (as had been required previously) after the opportunity for a hearing and with the right of appeal to the Senate. The changes provided for public or private "Letters of Admonition" from the Ethics Committee. These letters, which previously had been used by the committee, are not considered a form of discipline.
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The reforms added financial restitution to the possible sanctions (in addition to suspension and dismissal) that might be made against a Senate officer or employee.59
PROPOSALS FOR OUTSIDE/INDEPENDENT ENFORCEMENT OF THE CONGRESSIONAL RULES OF CONDUCT The House and Senate ethics committees have operated quietly and cautiously over the years. In seeking to be fair to Members, and not to pre-judge them or prejudice the consideration of allegations, the committees have been perceived to be slow or reluctant to investigate and discipline colleagues, and have been criticized on the basis of this perception.60 As noted earlier, Senator Fulbright' s 1951 resolution called for creation of an ethics commission of private citizens appointed by the Speaker and the President pro tern. The idea of an outside entity existed long before the ethics committees were created in the 1960s. Since the creation of the House and Senate ethics committees, there have been numerous proposals for investigative and enforcement mechanisms to supplement or replace the ethics committees.61 Some proposals have included an Office of Public Integrity or independent ethics commissions or offices, within the legislative branch, composed of incumbent or former Members of Congress, retired judges, private citizens, or a combination of these.62 However, neither House has agreed to such a change in the present system.63 During the 103rd Congress, in February 1993, the Joint Committee on the Organization of Congress held hearings on the congressional ethics process.64 Current and former Members of Congress as well as congressional scholars discussed the pros and cons of entities outside Congress assisting the ethics committees in the enforcement of congressional rules of conduct. Subsequently, the House Members on the committee recommended that "the Committee on Standards of Official Conduct should be authorized to use, on a discretionary basis, a panel of non-Members in ethics cases."65 No further action was taken. There was a high level of interest in an independent ethics authority in the 109th Congress (2005-2007) when numerous bills were introduced.66 In March 2006, the Senate Committee on Homeland Security and Governmental Affairs voted against a proposal to establish an independent office to enforce congressional ethics and lobbying laws. Subsequently, the Senate defeated a similar amendment to a pending gift and lobbying reform measure (S. 2349).67 Before and after the convening of the 110th Congress, discussions continued about "ethics reform" and enforcement.68 On January 18, 2007, during consideration of the Legislative Transparency and Accountability Act of 2007 (S. 1), the Senate again rejected an amendment to establish a Senate Office of Public Integrity.69
Special Task Force on Ethics Enforcement As noted earlier, on January 31, 2007, Speaker of the House Nancy Pelosi and Republican Leader John Boehner established an eight-member special task force on ethics
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enforcement to consider whether Congress should create an outside enforcement entity. Chaired by Representative Capuano, the task force held a public hearing on April 19, 2007.70 Congressional "ethics experts" and witnesses from public interest groups testified on the organization and authority of an independent ethics mechanism, and the wisdom and constitutional authority of such an entity. They also testified on the possibility and consequences of complaints filed by non-Members.71 With regard to the organization and authority of the outside ethics mechanism, considerations have included the types of persons who might serve on it, whether to have it serve as a filter for evaluating complaints or to give it broader investigatory and recommendation authority, what information to release publicly, and the relationship of the proposed new entity to the House Standards of Official Conduct Committee, including what might be required of the committee once it received a transmittal from the new outside enforcement mechanism. In addition to the question of whether complaints from non-Members should be accepted, considerations over such complaints have included how to identify frivolous or politically motivated complaints and whether to require disclosure of funding sources by non-Members who file complaints.72
CONCLUSION Over the years, congressional ethics enforcement has been linked to the public's perception of wrongdoing. Perceptions change; so the episodic debate on whether Members of Congress are able to police themselves, as mandated by the Constitution, is likely to continue. Moreover, precise definition of the term conflict of interest may always be elusive. One practical characterization of the term has been the "gray area" between activities that are unmistakably appropriate and those that are obviously improper and illegal.73 During the history of Congress, ideas of what constitutes that "gray area" have varied. Often, today, rules and laws defining and regulating conflicts of interest have been supplemented by the appearance-of-impropriety test. Under this test, ethicist Michael Josephson wrote that it is no defense that an act is legal or that there is no actual impropriety. It is enough that the conduct creates an inference of wrongdoing in the mind of a reasonable observer.74 More than ever, the public demands that its elected officials avoid both actual and apparent wrongdoing. While more standards of conduct for all government officials have been enacted in the past 30 years than ever before to increase public confidence in the system, Josephson said "each new law creates a new offense."75 In addition, media attention in the years since Watergate has increasingly focused on congressional conduct and has sometimes been an impetus for ethics investigations.
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ENDNOTES 1
U.S. Congress, Senate, The Constitution of the United States of America: Analysis and Interpretation, S.Doc. 108-17, 108th Cong., 2nd sess., prepared by the Congressional Research Service (Washington: GPO, 2004), p. 134. 2 See, for example, CRS Report RS33229, Status of a Member of the House Who Has Been Indicted for or Convicted of a Felony, by Jack Maskell. 3 Through the nineteenth and early twentieth centuries, the House and Senate on occasion disciplined Members by censure, expulsion, or exclusion. Today, the House and Senate may employ the disciplinary options of censure and expulsion as well as reprimand, letters of reproval or letters of admonition, and financial restitution. The Supreme Court, in Powell v. McCormack, 395 U.S. 486 (1969), barred the House from excluding a Member who met the constitutionally stated qualifications for membership. This decision presumably would apply as well to the seating of a Senator-elect. 4 Richard Baker, "The History of Congressional Ethics," in Bruce Jennings and Daniel Callahan, eds., Representation and Responsibility: Exploring Legislative Ethics (New York: Plenum Press, 1985), p. 4. (Hereafter cited as Baker, "The History of Congressional Ethics.") 5 Ibid., p. 3 6 George A. Graham, Morality in American Politics (New York: Random House, 1952); and H.H. Wilson, Congress: Corruption and Compromise (New York: Rinehart and Co., 1951). Wilson also noted 1944 and 1946 National Opinion Research Center Surveys indicating that the public believed politicians could not be honest. 7 Congressional Quarterly Inc., "Qualifications and Conduct," in Guide to Congress, 5th ed., vol. II (Washington: CQ Press, 2000), p. 930. 8 Robert S. Getz, Congressional Ethics: The Conflict of Interest Issue (Princeton, N.J.: Van Nostrand & Co., 1966), p. 113. 9 Baker, "The History of Congressional Ethics," p. 8. 10 "Senator Kerr Talks about Conflict of Interest," U.S. News and World Report, September 3, 1962, p. 86. 11 Congressional Quarterly Inc., "Ethics," in Congress and the Nation, 1945-1964 (Washington: Congressional Quarterly Inc, 1965), p. 1409. 12 Sen. Wayne Morse, "Reports by Senators on Sources of Outside Income," remarks in the Senate, Congressional Record, vol. 92, July 23, 1946, p. 9741; and Sen. Wayne Morse, "Disclosure of Assets by Members of Congress," remarks in the Senate, Congressional Record, vol. 109, December 20, 1963, p. 25275. 13 Sen. Wayne Morse, "Reports by Senators on Sources of Outside Income," remarks in the Senate, Congressional Record, vol. 92, July 23, 1946, p. 9741. 14 Sen. Wayne Morse, "Disclosure of Assets by Members of Congress," remarks in the Senate, Congressional Record, vol. 109, December 20, 1963, pp. 25275-25278; "Clifford Philip Case" (editorial), The Washington Post, March 9, 1982, p. A18; and "Former Sen. Paul H, Douglas Dies; Liberal Illinois Democrat Was 84," The New York Times, September 25, 1976, p. 24. 15 "Financial Disclosure Law Recommended by President Harry S Truman on September 27, 1951," Congressional Record, vol. 123, September 27, 1977, pp. E5917-E5918.
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U.S. Congress, Senate Committee on Labor and Human Resources, Subcommittee to Study Senate Concurrent Resolution 21, Establishment of a Commission on Ethics in Government, hearings, 82nd Cong., 1St sess., June 19-22, June 25-29, July 2-3, July 5-6, July 9-11, 1951 (Washington: GPO, 1951). 17 U.S. Congress, Senate Committee on Labor and Public Welfare, Ethical Standards in Government, committee print, 82nd Cong., 1' sess. (Washington: GPO, 1951). 18 "Senate Approves a Code of Ethics," The New York Times, July 12, 1968, pp. 1, 4. This Code of Ethics can be found at 72 Stat. B12, and at [http://usgovinfo.about.com/ blethics.htm], visited March 27, 2007. In addition, see testimony of Rep. Bennett, in U.S. Congress, Senate Committee on Labor and Public Welfare, Ethical Standards in Government, committee print, 82nd Cong., Pt sess. (Washington: GPO, 1951), pp. 387388; Rep. Bennett, "Code of Ethics for Government Service," remarks in the House, Congressional Record, vol. 97, June 26, 1951, pp. 71757178; and testimony of Rep. Bennett, in U.S. Congress, House Committee on Post Office and Civil Service, Code of Ethics For Government Service, hearings, 84th Cong., 2nd sess., March 29, 1956 (Washington: GPO, 1956). 19 Examples include U.S. Congress, House Committee on Standards of Official Conduct, Investigation of Certain Allegations Related to Voting on the Medicare Prescription Drug, Improvement, and Modernization Act of2003, report, 108th Cong., 2nd sess., H.Rept. 108-722 (Washington: GPO, 2004), p. 38; and U. S. Congress, Senate Select Committee on Ethics, Korean Influence Investigation, report, 95th Cong., 2nd sess., S.Rept. 95-1314 (Washington: GPO, 1975), pp. 5-6. 20 Congressional Quarterly Inc., "Ethics and Criminal Prosecutions," in Guide to Congress, 5th ed., vol. II (Washington: CQ Press, 2000), pp. 943-988. 21 "Proposed Amendment of Rule XXV of the Standing Rules of the Senate Relative to the Jurisdiction of the Committee on Rules and Administration," Congressional Record, vol. 110, July 24, 1964, pp. 16929-16940; and "Committee on Standards of Official Conduct," Congressional Record, vol. 113, April 13, 1967, pp. 9426-9448. The Senate Committee was renamed the Select Committee on Ethics in 1977. See U.S. Congress, Senate Rules and Administration Committee, Committee System Reorganization Amendments of 1977, report to accompany S.Res. 4, 950i Cong., 1" sess., S.Rept. 95-1 (Washington: GPO, 1977), pp. 4-5; and Congressional Record, vol. 123, February 1, 1977, pp. 3660-3699. 22 "Senate Standards and Conduct," Congressional Record, vol. 114, March 22, 1968, pp. 7369-7383 and 7388-7408; and "Standards of Official Conduct," Congressional Record, vol. 114, April 3, 1968, pp. 8776-8812. These rules of conduct, as amended by rules changes and law since 1968, are now found in House Rules XXBI-XXVI and Senate Rules XXIV-XIII. 23 U.S. Congress, Senate, Senate Manual Containing the Standing Rules, Orders, Laws, and Resolutions Affecting the Business of the United States Senate, S. Doc. 107-1, 107th Cong., sess. (Washington, GPO, 2002), pp. 108-118 (Standing Order 80); and U.S. Congress, House, Constitution, Jefferson's Manual and Rules of the House of Representatives of the United States, One Hundred Ninth Congress, H. Doc. 108-241, 108th Cong., 2nd Sess. (Washington, GPO, 2005), pp. 561-585 (House Rule XI, clause 3). 24 Quarterly Inc., "Cases of Expulsion in the Senate," in Guide to Congress, 5th ed., vol. II (Washington: CQ Press, 2000), p. 924. There have actually been 30 Senate expulsion
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attempts because the Senate twice considered expulsion resolutions against Sen. Louis Wigfall (D-TX) in 1861 for "support of the rebellion" during the Civil War. He ultimately was expelled from the Senate in 1861. The expulsion of Sen. William K, Sebastian (D-AR) for "support of the Confederate insurrection" in 1861 was revoked after his death. The most recent Senate expulsion cases were in 1982 and 1995. One involved a Senator who had been convicted of bribery in the Federal Bureau of Investigation's Abscam sting operation. The other involved a Senator under investigation by the Select Committee on Ethics for sexual misconduct charges and alterations to subpoenaed documents. Both Senators resigned before a potential expulsion vote. 25 Congress, House Committee on Standards of Official Conduct, Historical Summary of Conduct Cases in the House of Representatives, November 9, 2004, [http://www.house.goviethics/Historical_Chart_Final_Version.htm], visited May 9, 2007; and Congressional Quarterly Inc., "Seating and Disciplining Members," in Guide to Congress, 5th ed., vol. II (Washington: CQ Press, 2000), pp. 915-942. 26 For a history of the House Committee on Standards of Official Conduct, refer to CRS Report 98-15, House Committee on Standards of Official Conduct: A Brief History of Its Evolution and Jurisdiction, by Mildred Amer. 27 This office was created by the Ethics Reform Act of 1989 (P.L 101-194, 103 Stat. 17731776). 28 The bifurcation process has been used in 11 committee investigations. 29 Implementing the Recommendations of the Bipartisan Ethics Task Force," Congressional Record, vol. 143, September 18, 1997, pp. 19302-19340. 30 The committee is not permitted to investigate, under most circumstances, alleged violations that occurred before the third previous Congress. 31 See [http://www.house.goviethics/Histotical_Chart_Final_Version.htm] for a historical summary of cases prepared by the House Committee on Standards of Official Conduct. There are a number of complaints that the committee considers, but does not investigate. The committee sometimes does not acknowledge such cases, even if they are reported in the press. Therefore, it is difficult to ascertain a precise number of cases considered by the committee. 32 A public Letter of Reproval is a sanction created by the committee and first used in 1987. It is an administrative action authorized under the rules of the House and issued as part of a public report from the committee after a formal investigation. The Committee on Standards of Official Conduct has resolved several complaints by means of a letter to a respondent without a formal investigation. According to the committee, "In the past such letters have not been formally termed 'letters of admonition,' but this term accurately describes the substance of these letters." Unlike a Letter of Reproval, a Letter of Admonishment is not authorized under House rules. Such a letter was sent to a Member of the House in 2004. U.S. Congress, Committee on Standards of Official Conduct, Summary of Activities One Hundred Eighth Congress, 108th Cong., 2nd sess., pp. 62-68. 33 U.S.Congress, House Committee on Standards of Official Conduct, Summary ofActivities One Hundred Second Congress, 102nd Cong., 2nd sess., H.Rept. 102-1081 (Washington: GPO, 1993), pp. 9-12. 34 During the 97th, 98th, and 109th Congresses, the committee investigated accusations about the relationship between some Members and House pages. Two Members were disciplined as a result of the page investigation in the 98th Congress. The Members
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involved are included in the count of 73 Members who have been the subject of an inquiry/investigation and discipline by the committee and the House. See U.S. Congress, House Committee on Standards of Official Conduct, Summary of Activities Ninety-Eighth Congress, 98th Cong., 2nd sess., H.Rept. 98-1174 (Washington: GPO, 1984), pp. 3-4. 35 Congressional Record, vol. 143, February 12, 1997, pp. 2058-2059. 36 U.S. Congress, House Ethics Reform Task Force, Revisions to the Rules of the House and the Rules of the House Committee on Standards of Official Conduct, hearings, 105th Cong., Pt sess., March 4 and June 20, 1997 (Washington, GPO, 1997); and U.S. Congress, House, Report of the Ethics Reform Task Force on H.Res. 168, committee print, 105th Cong., 1st sess. (Washington: GPO, 1997). 37 "Implementing the Recommendations of the Bipartisan House Ethics Task Force," Congressional Record, vol. 143, September 18, 1997, pp. 19302-19340. 38 This procedure superseded a process whereby individuals who are not Members of the House could file complaints with the Standards Committee only after they had submitted allegations to at least three House Members, who had refused in writing to transmit the complaint to the committee. 39 The first pool of 20 Members selected to serve on investigative committees of the Standards Committee was appointed on November 13, 1997. See Congressional Record, vol. 143, November 13, 1997, p. 26569. The House leadership has appointed a 20-person pool of Members in each Congress since then. 40 Previously, there was no specific time limit for this determination. 41 With the exception of a brief period in 1966, only a vote by the full House previously permitted referrals of possible violations of law to the appropriate authorities. 42 "Rules of the House," Congressional Record, daily edition, vol. 151, January 4, 2005, pp. H7-H31. 43 If that complaint was to be disposed of in a letter not requiring House action, the Member, officer, or employee to whose conduct the letter referred would have had the options to review the content of the letter and accept it, contest it in writing (in which case, those views would have been part of the official public record), or contest it by requesting in writing that the committee establish an adjudicatory subcommittee to review the allegations. If an adjudicatory subcommittee had been established for the original complainant, the letter would not have been issued, because its issuance would have been considered "a statement of alleged violations" (formal charges). 44 The chairman and ranking member could have also requested the committee to extend the applicable 45-day period (or five legislative days, whichever is longer) by one additional 45- day period. 45 "Amending the Rules of the House," Congressional Record, daily edition, vol. 151, April 27, 2005, pp. H2616-H2626; and Carl Hulse, "House Overturns New Ethics Rule as G.O.P. Relents," The New York Times, April 28, 2005, pp. Al, A21. See also CRS Report RS22034, House Ethics Rules Changes in the 109' Congress, by Mildred Amer. 46 Susan Davis, "Pelosi, Boehner Name Eight Members to Ethics Task Force," Roll Call, February 1, 2007, pp. 3, 22. This is the third House Ethics Task Force created since the House Committee on Standards of Official Conduct was established in 1967. 47 Susan Ferrechio, "Pelosi Expected to Back Proposal to Allow Outsiders to File Ethics Complaints," CQ Today, June 5, 2007, p. 9.
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"Directing the Committee on Standards of Official Conduct to Respond to the Indictment of Any Member of the House," Congressional Record, daily edition, vol. 153, June 5, 2007, pp. H5971-H5976, H5978-H5979. 49 For a history of the Senate Select Committee on Ethics, refer to CRS Report RL30650, Senate Select Committee on Ethics: A Brief History of Its Evolution and Jurisdiction, by Mildred Amer. 50 The Senate Select Committee on Ethics website [http://ethics.senate.govi] displays the most recent Senate Ethics Manual as well as financial disclosure and travel forms, press statements, and other useful information. 51 The committee sometimes acts on complaints that do not reach a formal investigation stage. The committee usually does not acknowledge such cases even if they are reported by the press. Therefore, it is difficult to obtain a precise number of cases considered by the committee. U. S. Senate, Select Committee on Ethics, "Statement By Senators Boxer and Cornyn, the Chair and Vice Chair of the Senate Ethics Committee," press release, March 5, 2007, [http://ethics senate.govidownloads/pdffiles/pr030507.pdf] . 52 This case, which lasted from 1987-1991, involved the actions of the five Senators in connection with the Lincoln Savings and Loan Association. 53 There is no single comprehensive, official source for documenting all of the cases considered by the Senate Select Committee on Ethics. Good resources include Congressional Quarterly Inc., Congressional Ethics, 2nd ed. (Washington: Congressional Quarterly, 1980); Congressional Quarterly Inc, "Ethics and Criminal Prosecutions," in Guide to Congress, 5th ed., vol. II (Washington: Congressional Quarterly, 1991), pp. 943988, supplemented by various editions of Congress and the Nation, published quadrenially by Congressional Quarterly Inc., and Mary Ann Noyer, Catalogue of Congressional Ethics Cases,1796-1992 (Washington: The Brookings Institution, 1995). 54 Congressional Quarterly Inc., Congressional Ethics, 2nd ed. (Washington: Congressional Quarterly, 1980). 55 Helen Dewar, "Bipartisan Panel to Study Senate's Ethics Procedures," The Washington Post, March 4, 1993, p. A8. 56 U.S. Congress, Senate, Ethics Study Commission, Recommending Revisions to the Procedures of the Senate Select Committee on Ethics, Report to the Senate Leadership Pursuant to S.Res. 111, 103' Cong., 2nd sess., S.Prt. 103-71 (Washington: GPO, 1994); and Stephen Gettinger, "Senate Ethics Revision Process," Congressional Quarterly Weekly Report, vol. 54, March 5, 1994, pp. 522-523. 57 "Senate Ethics Procedure Reform Resolution of 1999," Congressional Record, vol. 145, November 5, 1999, pp. S28834-S28843. 58 These sanctions were similar to ones already contained in committee rules, but provided for the payment of restitution as a penalty and emphasized consistency in the wording of the various types of punishment. 59 The Senate has previously imposed monetary sanctions to remedy financial wrongdoing by Members. 60 The committees have throughout their existence been criticized as "watchdogs without teeth." See, for example, Robert Sherrill, "We Can't Depend on Congress to Keep Congress Honest," The New York Times Magazine, July 19, 1970, pp. 5-7, 13-14; Jerry Landauer, "Senate Ethics: Hear No Evil, See No Evil," The Washington Star, September 19, 1976, p. E3; "Got Ethics?" (editorial), Roll Call, June 25, 2001, p. 4; Helen Dewar,
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"Ethics: Can the Senate Police Its Own?" The Washington Post, February 5, 2002, p. A2; Norman Ornstein, "The Senate Is Unable to Police Itself," Roll Call, March 8, 2006, p. 6; and "Weak Reforms," (editorial), Roll Call, March 20, 2006, p. 4. 61 For a pro-con discussion of creating such entities, as well as the constitutional issues, refer to CRS Report RL33790, "Independent" Legislative Commission or Office for Ethics and/or Lobbying, by Jack Maskell and R. Eric Petersen. 62 for example, John Gregg, "Independent Board to Police Members?" Roll Call, Aug 21, 1988, pp. 3, 18; Glenn Simpson, "Non-Senators Proposed to Be Ethics Panelists," Roll Call, October 8, 1991, pp. 1, 27; Dennis Thompson, "Why Congressional Ethics Committees are Unethical," The Brookings Review, vol. 13, no. 4, Fall 1995, pp. 44-48; Norman Ornstein, "Put Congressmen Emerti on Ethics Panels," Wall Street Journal, May 28, 1991, p. A22; Juliet Eilperin, "Debate Joined Over Outside Ethics Panel for House," Roll Call, February 10, 1997, p. 10; Norman Ornstein, "Use Former Members, Staff to Filter Ethics Complaints," Roll Call, February 4, 2004, p. 6; and "Locking Up the Ghost of Congress Past" (editorial), The New York Times, March 3, 2007, p. A26. 63 U.S. Congress, Joint Committee on the Organization of Congress, Organization of Congress, Final Report of the Senate Members of the Joint Committee on the Organization of Cong., 103' Cong., Pt sess., S.Rept. 103-215, vol. 1 (Washington: GPO, 1993), p. 21; and Elizabeth Williamson, "House Hesitates on Ethics Changes," The Washington Post, April 12, 2007, p. A25. 64 U.S. Congress, Joint Committee on the Organization of Congress, Ethics Process, hearings, 103' Cong., Pt sess., February 16, and February 23, 1993 (Washington: GPO, 1993). 65 U.S. Congress, Joint Committee on the Organization of Congress, Organization of Congress, final report, 103' Cong., Pt sess., H.Rept. 103-413 (Washington: GPO, 1993), pp. 12-13. 66 See for example H.R. 2797, H.R. 4799, H.R. 4948, H.R. 5677, S.Con.Res. 82, and S. 2259. Some of the bills were introduced as stand-alone measures; others as part of measures proposing gift and lobbying reform. 67 Legislative Transparency and Accountability Act of 2006," Congressional Record, daily edition, vol. 152, March 28, 2006, pp. S2440-S2254, and S2459; and Jeffrey Birnbaum, "Ethics Office for Hill Rejected," The Washington Post, March 3, 2006, pp. Al, A8. 68 "Most Ethical Congress" (editorial), Roll Call, November 27, 2006, p. 4; Elana Schor "Ethics Reformers in House Push For Independent Panel," The Hill, December 6, 2006; Carl Hulse, "Democrats in Congress Consider Outside Ethics Panel," The New York Times, December 13, 2006, p. A19; and Sen. Barack Obama, "A Chance to Change the Game," The Washington Post, January 4, 2007, p. A17. 69 "Legislative Transparency and Accountability Act of 2007," Congressional Record, daily edition, vol. 153, January 18, 2007, pp. S743-744. 70 The other members of the task force include Reps. Robert Scott, Betty McCollum, David Price, Lamar Smith, Dave Camp, Dave Hobson, and Todd Tiahrt 71 Mark Wegner, "Task Force Studying Outside Ethics Regulator Begins Work," Congress Daily AM, April 20, 2007, p. 11. 72 Ibid. See also, for example, Susan Davis, "No Consensus Yet for Ethics Task Force," Roll Call, June 3, 2007, pp. 1, 32; Susan Davis and Jennifer Yachnin, "Ethics Heads Trade Jabs: Jones, Hastings Spar Over Jefferson Probe," Roll Call, June 7, 2007, pp. 1, 27; Meredith McGehee, "Will Ethics Suggestions Be Real or Cosmetic?" (guest observer),
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Roll Call, June 14, 2007, p.4; Susan Crabtree, "Capuano Bemoans 'Thankless' Ethics Job," The Hill, July 3, 2007, p. 5; and Bob Edgar, "Open Ethics Process Would Be a Good Step" (guest observer), Roll Call, July 9, 2007. 73 Ralph Eisenberg, "Conflict of Interest Situations and Remedies," Rutgers Law Review, vol. 13: 666 (1959). 74 Michael Josephson, " The Best of Times, the Worst of Times," Spectrum, Fall 1992, vol. 65, p. 36. 75 Ibid.
In: Congress of the U.S: Commitees, Rules and Procedures ISBN 978-1-60456-416-7 Editor: Sela G. Thomason © 2009 Nova Science Publishers, Inc.
Chapter 8
CONGRESSIONALLY CHARTERED NONPROFIT ORGANIZATIONS (“TITLE 36 CORPORATIONS”): WHAT THEY ARE AND HOW CONGRESS TREATS THEM* Kevin R. Kosar SUMMARY The chartering by Congress of organizations with a patriotic, charitable, historical, or educational purpose is essentially a 20th century practice. There are currently some 92 nonprofit corporations listed in Title 36, Subtitle II, of the U.S. Code. These so-called “Title 36 corporations,” such as the Girl Scouts of America and the National Academy of Public Administration, are typically incorporated first under state law, then request that Congress grant them a congressional or federal charter. Chartered corporations listed in Title 36 are not agencies of the United States, and the charter does not assign the corporate bodies any governmental attributes. For instance, the corporation’s debt is not guaranteed, explicitly or implicitly, by the full faith and credit of the United States. The attraction of Title 36 status for national organizations is that it tends to provide an “official” imprimatur to their activities, and to that extent it may provide them prestige and indirect financial benefit. In recent years, some in Congress have expressed concern that the public may be misled by its chartering process into believing that somehow the U.S. government approves and supervises the corporations, when in fact this is not the case. As a consequence, in 1989 the House Judiciary Committee decided upon a moratorium on granting new charters. (The Senate generally defers to the House on chartering matters.) This moratorium has been reaffirmed by the committee at the beginning of each Congress since. On several recent
*
This is an edited, excerpted and augmented edition of a CRS Report for Congress publication, Order Code RL30340, dated June 12, 2007.
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occasions, however, the full Congress has established Title 36 corporations on its own plenary authority. In 1998, Congress approved, and the President signed, legislation recodifing Title 36 of the Code (P.L. 105-225). This revision did not substantively alter any of the provisions in Title 36; rather, the objective was to reorder and revise where necessary the wording of the provisions to better ensure consistency and readability.
CURRENT CONTEXT This report1 discusses a category of congressionally chartered2 nonprofit organizations that have as their purpose the promotion of patriotic, charitable, educational, and other eleemosynary activities.3 Title 36 of the United States Code, where such corporate organizations are listed with their charters, was recodified by law in 1998 (P.L. 105-225).4 Title 36 is comprised of three subtitles: Subtitle I: Patriotic and National Observances and Ceremonies; Subtitle II: Patriotic and National Organizations; and Subtitle III: Treaty Obligation Organizations. This chapter concerns itself with Subtitle II, which includes 92 congressionally chartered corporations. These chartered organizations have been collectively referred to under any of three terms: “Congressionally chartered organizations;” “Title 36 corporations;” and “patriotic societies.” In this chapter, the term “Title 36 corporation” will be used, although it should be noted that even within this category of organizations, there are variations. The United States Constitution, although not providing express power to Congress to charter corporations, is generally cited as the authority, under Article I, Section 8, Clause 18, by which Congress can pass all laws “necessary and proper” to implement the assigned expressed powers.5 Congress has authority to establish organizations within both the governmental and private sectors. In the governmental sector, the authority and responsibility to establish all agencies and all offices to be filled by appointed officers of the United States is clear. The permissible actions of all agencies and officers of the United States are determined by public law. Congress also has authority to establish new for-profit and nonprofit organizations in the private sector. Congress, for instance, established the fully private, stockholder-owned Communications Satellite Corporation (ComSat) in 1962 (47 U.S.C. 701; 76 Stat. 419). Congressional authority with respect to organizations functioning essentially under state law, however, has not been free of controversy. The basis of the controversy often comes down to fundamental issues of managerial accountability, fiduciary responsibility, and rights that inhere to governmental organizations, but not to private organizations, such as the right to the full faith and credit of the U.S. Treasury.6 Title 36 corporations constitute one of the categories of corporate organizations chartered by Congress.7 It should be noted at the outset, however, that since 1994 the House Judiciary Committee has placed a moratorium on the chartering of additional nonprofit corporate organizations, a position agreed to by the Senate Judiciary Committee. On four occasions since that time, however, the House and Senate have acted on their own plenary authority to charter such corporations. Additionally, in 1997, the Judiciary Committees, citing unusual circumstances, chartered two veterans’ organizations and then reasserted the moratorium.
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HISTORICAL AND LEGAL CONTEXT There is no general law of incorporation at the federal level as there is in the states and the District of Columbia. If Congress wishes to establish or charter a corporation, it does so by enacting a law, and it is this specific legislation that provides for the mission, authorities, and restrictions that will apply to the chartered corporation. The general practice has been for each state and the District of Columbia to exercise jurisdictional authority over the incorporation of for profit and nonprofit organizations within their boundaries. This exercise of authority by states devolved from the concept that states had authority at common law to create artificial bodies for the purpose of engaging in various enterprises and carrying on certain activities. Historically, state legislatures chartered each organization seeking corporate status on a situation-specific basis, in much the same way as the federal government does today. As time passed, states moved to provide for the creation of corporations pursuant to statutory procedures. Today, states have general incorporation laws, and often separate laws for profit and nonprofit entities, which stipulate procedures, information, and standards to be met for the issuance of a charter (“articles of incorporation”). A fee is typically associated with the process. Corporations operating in the District of Columbia are subject to the constitutional delegation of authority over the District of Columbia as provided in Article I, Section 8 of the United States Constitution. It was the practice of Congress in the early years of the republic to grant franchises to District of Columbia corporations on a case-by-case basis. For example, Congress incorporated the Trustees of the Presbyterian Congregation in Georgetown in 1806 (2 Stat. 356). In 190 1, Congress enacted a general statutory procedure allowing incorporation in the District of Columbia by means of filing paperwork rather than by special action of Congress. This procedure, analogous to that now used by the states, is found in Title 29 of the District of Columbia Code. Given that Congress has never passed a general body of law applicable to the operation and powers of the for-profit and nonprofit corporations it charters, it is necessary for Congress to include such provisions in each act granting a charter. There is considerable similarity between powers granted to federal corporations and those granted by states to their corporations. Among the powers typically provided are: 1. to sue and be sued; 2. to contract and be contracted with; 3. to acquire, hold and convey property; 4. to enact by-laws; 5. to have a seal; 6. to appoint officers; and 7. to borrow money for the purposes of the corporation. There are also differences between a federal charter and a typical state charter. One feature peculiar to federal charters is that, in most instances, statutes granting federal charters require the submission of periodic financial statements to Congress on certain activities of the corporation. On the other hand, states often permit actions that are not permitted federally chartered corporations. For instance, under the District of Columbia Nonprofit Act, a
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corporation is permitted “to lend money to and otherwise assist its employees other than its officers and directors.” (D.C. Code, 29- 301.05(6)). Title 36 corporations can, and generally do, function simultaneously under both federal and state charters. Indeed, in most instances, organizations were chartered and functioned under state law before, often long before, receiving federal charters.
PATRIOTIC AND NATIONAL ORGANIZATIONS: SUBTITLE II The chartering by Congress of organizations with a patriotic, charitable, historical, educational, or other eleemosynary purpose is essentially a 20th century practice. Title 36 of the U.S. Code, where such corporate organizations are listed with their charters, was revised in 1998 (P.L. 105-225), and in the process three subtitles of nonprofit corporate organizations were listed: Subtitle I: Patriotic and National Observances and Ceremonies. Part A, Observances and Ceremonies, includes (1) the Benjamin Franklin Tercentenary Commission (P.L. 107-202), (2) the Brown v. Board of Education 50th Anniversary Commission (P.L. 107-4 1), (3) the James Madison Commemoration Commission (P.L. 106-550), and (4) the Abraham Lincoln Bicentennial Commission (P.L. 106- 173). Part B, United States Government Organizations Involved with Observances and Ceremonies, has three entries: (1) the American Battlefield Monuments Commission, (2) the U.S. Holocaust Memorial Council, and (3) the President’s Commission on Employment of People With Disabilities. Subtitle II: Patriotic and National Organizations. The 92 corporate entries included under Subtitle II range from the Agricultural Hall of Fame to Big Brothers — Big Sisters of America to the Women’s Army Corps Veterans’ Association. Subtitle III: Treaty Obligation Organizations. This is an organizational category with one entry, the American National Red Cross (ANRC), which was first chartered in 1900 and then re-chartered in 1905. The ANRC is an unusual organization because the federal government has charged it with fulfilling U.S. treaty obligations under the Geneva Conventions and aiding in disaster response.8 The attraction of Title 36 status for national organizations is that it tends to provide an “official” imprimatur to their activities and, to that extent, it may provide them prestige and indirect financial benefit. Congress, in chartering patriotic, charitable, professional and educational organizations under Subtitle II, such as the National Academy of Public Administration (36 U.S.C. 1501), does not make these organizations “agencies of the United States” or confer any powers of a governmental character or assign any benefits.9 These organization generally do not receive direct appropriations, they exercise no federal powers, their debts are not covered by the full faith and credit of the United States, and they do not enjoy original jurisdiction in the federal courts. In effect, the federal chartering process is honorific in character. This honorific character may be misleading to the public, however, when such organizations feature statements or
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display logos that they are “chartered by Congress,” thus implying a direct relationship to the federal government that does not in fact exist. In addition, there may be an implication that Congress approves of the organizations and is somehow overseeing its activities, which is not the case. As with nearly all generalizations about congressionally chartered nonprofit organizations, there are exceptions. At least one of these nonprofits receives much congressional attention of its management, the U.S. Olympic Committee (36 U.S.C. 2005). In early 2003, the Senate Commerce Committee held hearings on reorganizing the USOC.10
GOVERNMENTAL OR PRIVATE? While it is correct to state that the congressionally chartered nonprofit organizations in Title 36 are not agencies of the United States, there are instances when the boundary between the private and governmental sectors are blurred at best. It is possible to argue that at least in a few instances the private character of the Title 36 corporation is reasonably in question. For many years the Department of Defense administered the Civilian Marksmanship Program. The program came under political pressures for various reasons and the Department decided to request Congress to “privatize” the program, which Congress agreed to in creating a federally chartered corporation titled Corporation for the Promotion of Rifle Practice and Firearms Safety (36 U.S.C. 40701). This “privatization” exercise raises questions about the limits, if any, to Congress’s authority to assign a “private” label to functions of a governmental character. While the Corporation has some admittedly governmental attributes (e.g., upon dissolution of the Corporation, its assets are to be sold and revert to the U.S. Treasury), Congress has declared in its enabling statute that “the corporation is a private corporation, not a department, agency, or instrumentality of the U.S. Government.” Furthermore, the law provides that “an officer or employee of the corporation is not an officer or employee of the Government.” Whether Congress has the constitutional authority to assign an entity “private” status when in fact it has substantial “governmental” attributes has been subject to debate and judicial opinion.11 In the 106th Congress, a new entry was included in Part B of subtitle II of Title 36, the National Recording Preservation Foundation (Foundation). The background for this Foundation requires some explanation. A National Recording Registry (established under Public Law 106-474; 2 U.S.C. 1701) is to be housed in the Library of Congress and managed by the Librarian of Congress through an adjunct organization of the Library titled the National Recording Preservation Board (Board). This Board consists of 17 members, selected by the Librarian from the organizations listed in the statute. Personnel working for the Board are appointed by the Librarian and are employees of the United States. Additionally, the statute provided for the establishment of a National Recording Preservation Foundation (Foundation) as a Title 36 nonprofit corporation (chapter 1524), not to be considered as an agency or establishment of the United States. The purpose of the Foundation is to accept and administer private gifts to the Board. The board of the Foundation consists of nine members, selected by the Librarian with the latter serving in an ex-officio capacity. The Foundation is governed by its own bylaws. The Librarian appoints a Secretary of the Board who serves as the executive director. Officers of the Foundation are appointed
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and removed by the board of directors while the Secretary appoints and removes employees. The Foundation has “the usual powers of a corporation acting as a trustee in the District of Columbia.” The U.S. government “is not liable for any debts, defaults, acts, or omissions of the corporation,” yet the Foundation is authorized to directly receive appropriated funds. The Foundation and its relationship to the Board and to the Librarian of Congress may raise questions as to how “private” the Foundation actually is. At a minimum, the Foundation represents something of a departure from the usual Title 36 nonprofit corporation. Another departure from the usual Title 36 nonprofit corporation model was forthcoming in the 107th Congress with its approval of the National Help America Vote Foundation. The Foundation is “a charitable and nonprofit corporation and is not an agency or establishment of the U.S. Government.” (36 U.S.C. 1526; 116 Stat. 1717). The Foundation, which carries out its statutory mandate in consultation with the chief election officials of the several states, receives its funding through direct appropriations. Although it must follow provisions of a number of federal laws, it is nonetheless to act as a trustee under District of Columbia law which permits it, among other things, “to borrow money and issue instruments of indebtedness.” All of which suggests questions regarding who is ultimately responsible for the indebtedness. Is the National Help America Vote Foundation really private with the right to declare bankruptcy? Those private, nonprofit organizations seeking federal charters under Title 36 presumably perceive value behind such charters, and indeed, such may be the case. Less recognizable, however, are the risks to private, nonprofit organizations of having a charter. A chartered private organization may lose some of its private rights and be made subject to management laws and regulations generally applicable only to agencies of the United States. Such a situation came about in 1997 when Congress amended the Federal Advisory Committee Act (5 U.S.C. Appendix; 86 Stat. 700) so as to include two Title 36 corporations, the National Academy of Public Administration and the National Academy of Sciences, under specific provisions involving the appointment, permissible activities, and reports of corporation committees doing work for executive agencies (P.L. 105-153). This is the first instance in which Congress has made Title 36, Subtitle II corporations subject to the provisions of a general management law, and while the action may be supportable on public policy grounds, it does, to the extent of the applicable provisions, diminish the private character of the affected organizations. As such, it constitutes a precedent with implications.
CONGRESSIONAL PROCEDURES Corporate charters are granted in law by act of Congress. The procedure for the grant begins like any other act of Congress, with the introduction of a bill by a member of either the House of Representatives or the Senate. Bills proposing Title 36 corporate bodies are generally referred to the judiciary committees of each house. If the measure is reported out of committee and approved by that house, it is sent to the other house for approval, and then on to the President for signature, whereupon it becomes law. Prior to 1965, requests for congressional charters were considered on a case-bycase basis without standards or criteria for incorporation. That year President Lyndon Johnson vetoed
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H.R. 339 (89th Congress), a bill that would have granted a corporate charter to the Youth Councils on Civil Affairs. In his veto message President Johnson raised several questions about the wisdom of continuing to grant charters on a case-by-case basis “without the benefit of clearly established criteria as to eligibility.” In the President’s veto message to Congress, he noted: For some time I have been concerned with the question of whether we are granting Federal charters to private organizations on a case-by-case basis without the benefit of clearly established standards and criteria as to eligibility. Worthy civic, patriotic, and philanthropic organizations can and do incorporate their activities under state law. It seems obvious that Federal charters should be granted, if at all, only on a selective basis and that they should meet some national interest standard.12
The President requested in his veto message that the two judiciary committees conduct a comprehensive study on the entire matter. Various proposals had been made over the years to adopt federal statutory procedures for chartering nonprofit organizations, but Congress remained unpersuaded. In 1969, in response to the President’s request, subcommittees of both the House and Senate Judiciary Committees jointly agreed to a statement of policy, “Standards for Granting of Federal Charters.” This statement set forth five “minimum standards” to be met by a private organization seeking a federal charter from Congress: Any private organization petitioning Congress for the purpose of obtaining the status of a Federal corporation shall be required to demonstrate to the satisfaction of Congress that it is an organization which is — 1. operating under a charter granted by a State or the District of Columbia and that it has so operated for a sufficient period of time to demonstrate its permanence and that its activities are clearly in the public interest; 2. of such unique character that chartering by the Congress as a Federal corporation is the only appropriate form of incorporation; 3. organized and operated solely for charitable, literary, educational, scientific, patriotic, and civil improvement purposes; 4. organized and operated as a nonpartisan and nonprofit organization; and 5. organized and operated for the primary purpose of conducting activities which are of national scope and responsive to a national need, which need cannot be met except upon the issuance of a Federal charter.13
The status of a private, nonprofit organization receiving a federal charter does not appear to be substantially different from that of a similar organization incorporated under state law. Under the congressional standards agreed to in 1969, it became a “minimum requirement” that organizations seeking a federal charter demonstrate that they have been functioning properly under a state charter and that their activities are clearly in the public interest. However, there are two elements of a federal charter that appear to create some legal differences between federally chartered corporations and similar corporate bodies functioning solely under state charters. First, there is a matter of the “citizenship” of the corporation. Generally, corporations chartered by states are deemed to have “citizenship” in the state of establishment. A corporate body created by Congress, however, may be designated as a citizen of the United states for
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judicial purposes.14 The latter rule has been supported in at least one instance involving a Title 36 corporation. In that case the American Legion was held not to be a citizen of any state for the purposes of invoking diversity of citizenship jurisdiction under 28 U.S.C. 1 332(a)( 1).15 Further, Congress can itself provide for federal judicial jurisdiction in the charter.16 Second, because federal charters are laws of the United States, they may only be amended by another law of the United States. If an organization seeks to alter its primary purpose or change a provision in its charter, even a minor provision, it must return to Congress and subject its request to the full legislative process. While the process is generally routine, there are occasions when making even minor legislative changes in the charter may open the organizations to challenge from the outside.
OVERSIGHT OF CHARTERED CORPORATIONS At present, federal supervision of congressionally chartered nonprofit organizations is limited. All “private corporations established under federal law,” as defined and listed in Subtitle II, are required to have independent audits annually, and to have the reports of the audits submitted to Congress (36 U.S.C. 10101).17 In practice, the Subcommittee on Citizenship, Refugees, Border Security, and International Law18 receives the audit reports of all listed corporations and, where corporations have not submitted reports in a timely manner, makes every effort to communicate with said organizations and remind them of their legal responsibility. Most of the corporations take this responsibility seriously and submit the necessary reports. The House Judiciary Committee refers all received audits to the Government Accountability Office (GAO) for review.19 The committee’s current role is strictly ministerial. A GAO official testified on its review procedures in 1975: Our reviews of the reports are generally restricted to desk review unless serious questions or problems arise. When this occurs, we contact the independent public accountant or the organization for clarification. The purpose of our review is to determine whether in our professional judgement, the reports meet the standards for reporting set forth in law. The major problems noted by us to date have been: (1) lack of timely submission of reports; (2) lack of sufficient explanations in the report; (3) financial statements which do not meet the stipulated requirements of law; (4) audits not conducted by independent certified public accountants; and (5) in some few cases failure to follow generally accepted auditing standards.20
In addition, corporate bodies are required to make annual reports of their activities to the Congress.21 Public access to the records and reports of Title 36 corporations varies. For example, the charter of the National Ski Patrol System (36 U.S.C 1527) requires that its annual report be submitted each year to Congress but prohibits the public printing of it. Traditionally, the Senate Judiciary Committee has deferred to the House committee on these matters. It is not the intention of the Judiciary committees of Congress or the Government Accountability Office to “look over the shoulder” of these organizations, or to conduct audits
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on their own authority. Congress is understandably ambivalent with respect to these chartered organizations; on the one hand it attempts to protect the public interest against abuse by those corporate bodies while simultaneously seeking to limit its involvement in the internal affairs of these private organizations. Thus far, in no instance has the charter of a Title 36 corporations been revoked although there have been several controversies in recent years involving chartered organizations and the chartering process generally.22 In the 106th Congress, there was a controversy involving the Boy Scouts of America (36 U.S.C. 309) with legislation introduced to revoke its congressional charter. The Supreme Court in Boy Scouts of America v. Dale (120 S.Ct. 2446 (2000)) ruled that the Boy Scouts of America were within their First Amendment rights as a private organization to exclude from a leadership position a person who was in fundamental disagreement with its purposes as an organization. In this case, the facts were that the Boy Scouts of America removed from an assistant scout master position a young man who professed and practiced a homosexual lifestyle. The national organization argued that this individual, whatever his personal merits, had no “right” to hold a leadership position in an organization which disavowed that lifestyle. The individual involved, James Dale, and some supporting organizations, argued that as assistant scout master, Dale had performed his assigned responsibilities well and that his lifestyle, irrespective of being contrary to one of the purposes of the organization, was not a legitimate grounds to deny him a position of leadership. To do so denied Dale his rights under New Jersey’s public accommodations law. The issue, Dale’s attorneys argued, was not a constitutional, First Amendment question. Several members of Congress introduced legislation (H.R. 4892) to repeal the federal charter of the Boy Scouts. Against the wishes of its sponsors, however, a motion was brought to suspend the rules, an action that would pave the way for a vote in the House. The tactic intended to put members on record as favoring or opposing the bill without having to vote directly. The motion failed; 12-362, thereby supporting the Supreme Court decision and, presumably, the chartering of the Boy Scouts of America.23 During this debate the character and utility of the chartering process was discussed. More recently, in 2005, American Gold Star Mothers (36 U.S.C. 211) reportedly refused to admit to membership a woman whose son was killed while serving in Iraq in 2004 because she is not a citizen of the United States, as the corporation’s constitution — not charter — required.24 Congressional concern over exclusionary membership practices grew when Members learned that the congressional charters of three Title 36 corporations explicitly limit membership to U.S. citizens.25 In 2006, another Title 36 organization drew media criticism. The National Education Association of the United States (36 U.S.C. 1511) was chartered by Congress in 1906, and its purposes are “(1) to elevate the character and advance the interests of the profession of teaching; and (2) to promote the cause of education in the United States.” (36 U.S.C. 151102) Reportedly the organization has been using the dues of members to make contributions to political organizations (e.g., Rainbow PUSH Coalition) and organizations with agendas that would not appear to be readily connected with teaching and schooling (e.g., the Gay and Lesbian Alliance Against Defamation).26
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ENDING CHARTERS — MAYBE In some cases, Title 36 corporations have ceased to exist without congressional action. The Grand Army of the Republic (43 Stat. 458) and the United Spanish War Veterans (54 Stat. 152) ceased to exist once their last members died. A similar fate awaits the Veterans of World War I (36 U.S.C. 2303) of the United States, whose membership has dwindled from over 800,000 to less than a dozen.27 Hearings held by subcommittees of the respective judiciary committees of the House and Senate in the early 1970s indicated an increasing level of dissatisfaction by members of Congress respecting the intent and practice of congressional chartering of private, nonprofit organizations. More organizations, through sympathetic members of Congress, were requesting charters, and the requesting organizations were often extending the definition of congressionally chartered corporations beyond that typically associated with patriotic and service organizations.28 In April 1992, chairman Barney Frank announced that the House Subcommittee on Administrative Law and Government Relations would no longer consider requests for charters. The reason, Frank said, was that the charters were “a nuisance,” a meaningless act; granting charters implied that Congress was exercising some sort of supervision over the groups and it was not. “When I first raised the issue, ‘What is a federal charter?’ The answer was, a federal charter is a federal charter is a federal charter... . You could make up an organization for the preservation of Albert DeSalvo, the Boston Strangler. We’d have no way of checking into it.”29 Moreover, the subcommittee understood that the committee could be drawn into public disputes touched off by any controversial activities or statements by a Title 36 corporation or employees or members thereof. Continuing to review applications on the basis of merit with the possibility of rejection, it was asserted, was subjecting the subcommittee to pressures and the potential for embarrassment to both the requester and Congress. By indicating an end altogether of the practice of chartering, it was hoped the subcommittee also would be “leveling the playing field” among worthy organizations. This view was formalized in the 104th Congress when the subcommittee decided that it would no longer consider any legislation to grant new federal charters because such charters were unnecessary for the operations of any charitable, nonprofit organization and falsely implied to the public that a chartered organization and its activities somehow carried a congressional “seal of approval.” This moratorium has been continued by the House subcommittee of jurisdiction30 in each subsequent Congress, most recently on June 6, 2007.31 This subcommittee moratorium did not, however, stop all requests for, or consideration of, charter requests. Notably, it remains possible for another committee, or for the full Congress in its plenary capacity, to “charter” nonprofit organizations and have them listed in Title 36. Indeed, this has been the case in several instances in recent years. In 1996, the Fleet Reserve Association was chartered (110 Stat. 2760) without the legislation being referred to the Judiciary committees of the respective chambers. Also in recent years, corporate bodies (e.g., Corporation for Promotion of Rifle Practice and Firearms Safety, 36 U.S.C. 40701; National Recording Preservation Foundation, 36 U.S.C. 152401) have been created by Congress and listed by the House Office of Law Revision Counsel under Title 36.
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In the 1 05th Congress, the moratorium notwithstanding, two additional nonprofit organizations were chartered. Each case represented a specific and unusual set of circumstances. In the first session, the Senate Committee on Armed Forces approved a bill, one provision of which chartered the Air Force Sergeants Association (AFSA). This charter proposal had not been referred to the judiciary committees for their review and approval. When the bill reached conference, the jurisdictional issues were raised and a negotiated settlement reached. AFSA would receive its charter in this instance (P.L. 105-85; 36 U.S.C. 20201), but the jurisdictional authority of the judiciary committees, and thus the moratorium, was reaffirmed.32 In the second session of the 105th Congress, a bill to award a charter to the American GI Forum was approved, this time with the approval of the judiciary committees. In this instance, the circumstances involved an act of discouragement by the committee toward a would-be charter applicant under the rules followed prior to 1989. The organization believed that it had been improperly informed and unfairly evaluated during its earlier application and deserved to be reconsidered for chartering. The committee permitted the organization to make its case and concluded that due to exceptional circumstances, an exemption from the moratorium was warranted in this instance and thus a charter was granted (P.L. 105-23 1; 36 U.S.C. 21001).
CONCLUSION The congressional practice of chartering selected private, nonprofit organizations that engage in patriotic, charitable, historical, and educational activities is essentially a 20th century phenomenon. The chartering process itself tends to send mixed signals to the public. Although the charter does not award any material governmental status to the nonprofit corporation (e.g., right of eminent domain) there is an understandable assumption on the part of the public that somehow the charter signifies U.S. government approval of the corporation’s activities and that the corporation is being supervised. Neither assumption is merited. The House Judiciary Committee, the key committee in the process, after some years of experience and several hearings, concluded that the chartering process served no useful public purpose and issued a formal moratorium on requests for charters in 1992. It remains possible, however, for another committee or the full Congress to bypass the judiciary committees and initiate on their own the approval process for chartering a nonprofit organization. This bypass strategy for chartering Title 36 corporations has been successfully pursued (concluding with a presidential public law signature) on several occasions in recent years. Partly in response to these actions, with each new Congress the House Judiciary Committee has reaffirmed its moratorium on approval of charters. It remains to be seen, however, how effective this moratorium will be against the many attractions of the chartering practice.
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APPENDIX: TITLE 36, SUBTITLE II: PATRIOTIC AND NATIONAL ORGANIZATIONS Chapter 201. Agricultural Hall of Fame 202. Air Force Sergeants Association 203. American Academy of Arts and Letters 205. American Chemical Society 207. American Council of Learned Societies 209. American Ex-Prisoners of War 210. American GI Forum of the United States 211. American Gold Star Mothers, Incorporated 213. American Historical Association 215. American Hospital of Paris 217. The American Legion 219. The American National Theater and Academy 221. The American Society of International Law 223. American Symphony Orchestra League 225. American War Mothers 227. AMVETS (American Veterans of World War II, Korea, and Vietnam) 229. Army and Navy Union of the United States of America 231. Aviation Hall of Fame 301. Big Brothers — Big Sisters of America 303. Blinded Veterans Association 305. Blue Star Mothers of America, Inc. 307. Board for Fundamental Education 309. Boy Scouts of America 311. Boys and Girls Clubs of America 401. Catholic War Veterans of the United States of America 403. Civil Air Patrol 405. Congressional Medal of Honor Society of the United States of America 407. Corporation for the Promotion of Rifle Practice and Firearms Safety 501. Daughters of Union Veterans of the Civil War 1861-65 503. Disabled American Veterans 601. 82nd Airborne Division Association, Inc. 701. Fleet Reserve Association 703. Former Members of Congress 705. The Foundation of the Federal Bar Association 707. Frederick Douglass Memorial and Historical Association 709. Future Farmers of America 801. General Federation of Women’s Clubs 803. Girl Scouts of the United States of America 805. Gold Star Wives of America 1001. Italian American War Veterans of the United States 1101. Jewish War Veterans of the United States of America
Section 20101 20201 20301 20501 20701 20901 21001 21101 21301 21501 21701 21901 22101 22301 22501 22701 22901 23101 30101 30301 30501 30701 30901 31101 40101 40301 40501 40701 50101 50301 60101 70101 70301 70501 70701 70901 80101 80301 80501 100101 110101
Congressionally Chartered Nonprofit Organizations 1103. Jewish War Veterans, USA, National Memorial, Inc. 1201. [Reserved] 1301. Ladies of the Grand Army of the Republic 1303. Legion of Valor of the United States, Inc. 1305. Little League Baseball, Inc. 1401. Marine Corps League 1403. The Military Chaplains Association of the United States of America 1405. Military Order of the Purple Heart of the United States of America, Inc. 1407. Military Order of the World Wars 1501. National Academy of Public Administration 1503. National Academy of Sciences 1505. National Conference of State Societies, Washington, District of Columbia 1507. National Conference on Citizenship 1509. National Council on Radiation Protection and Measurements 1511. National Education Association of the United States 1513. National Fallen Firefighters Foundation 1515. National Federation of Music Clubs 1517. National Film Preservation Foundation 1519. National Fund for Medical Education 1521. National Mining Hall of Fame and Museum 1523. National Music Council 1524. National Recording Preservation Foundation 1525. National Safety Council 1526. Help America Vote Foundation 1527. National Ski Patrol System, Inc. 1529. National Society, Daughters of the American Colonists 1531. The National Society of the Daughters of the American Revolution 1533. National Society of the Sons of the American Revolution 1535. National Tropical Botanical Garden 1537. National Woman’s Relief Corps, Auxiliary to the Grand Army of the Republic 1539. The National Yeomen F 1541. Naval Sea Cadet Corps 1543. Navy Club of the United States of America 1545. Navy Wives Clubs of America 1547. Non Commissioned Officers Association of the United States of America, Inc. 1701. Paralyzed Veterans of America 1703. Pearl Harbor Survivors Association 1705. Polish Legion of American Veterans, U.S.A. 1901. Reserve Officers Association of the United States 1903. Retired Enlisted Association, Inc. 2001. Society of American Florists and Ornamental Horticulturists 2003. Sons of Union Veterans of the Civil War 2101. Theodore Roosevelt Association 2103. 369th Veterans’ Association 2201. United Service Organizations, Inc.
197 110301 130101 130301 130501 140101 140301 140501 140701 150101 150301 150501 150701 150901 151101 151301 151501 151701 151901 152101 152301 152401 152501 152601 152701 152901 153101 153301 153501 153701 153901 154101 154301 154501 154701 170101 170301 170501 190101 190301 200101 200301 210101 210301 220101
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2203. United States Capital Historical Society 2205. United States Olympic Committee 2207. United States Submarine Veterans of World War II 2301. Veterans of Foreign Wars of the United States 2303. Veterans of World War I of the United States of America, Inc. 2305. Vietnam Veterans of America, Inc. 2401. Women’s Army Corps Veterans’ Association
220301 220501 220701 230101 230301 230501 240101
ENDNOTES 1
This chapter was originally authored by Ronald C. Moe, who retired from CRS. It has been revised a number of times by the current author. 2 The term “congressional charter” is used rather than “federal charter” because this chapter considers only those entities which received a charter from Congress. It excludes other nonprofit corporations, such as the Universal Service Administrative Company (USAC), that are deeply involved in federal policy and have charters, but were chartered without legislation. On USAC, see U.S. Congress, House, Committee on Energy and Commerce, Subcommittee on Oversight and Investigations, Problems with the E-Rate Program: Waste, Fraud, and Abuse Concerns in the Wiring of Our Nation’s Schools to the Internet, 108th Cong., 2nd sess., July 17, 22, 2004 (Washington, GPO, 2004). 3 The term “nonprofit” is employed here instead of the more accurate “not-for-profit” because “nonprofit” is the preferred term of the U.S. Code. 4 H.R. 1085, introduced March 17, 1997, by the chairman of the House Judiciary Committee, Henry Hyde, had as its official title: “A bill to revise, codify, and enact without substantive change certain general and permanent laws, related to patriotic and national observance, ceremonies and organizations as Title 36, United States Code, ‘Patriotic and National Observances, Ceremonies and Organizations.’” The House Judiciary Committee reported the bill on October 21, 1997 (H.Rept. 105-226). The House passed H.R. 1085 by a voice vote on February 3, 1998 (Congressional Record, daily edition, vol. 144, February 3, 1998, H1 14). The Senate followed by a voice vote of approval, and the bill was sent to the President, who signed it on August 18, 1998 as P.L. 105-225. The Office of Law Revision Counsel of the House of Representatives is under statutory mandate (2 U.S.C. 285b) to prepare, one title at a time, a restatement and revision of the general and permanent laws of the United States for enactment into positive law. The respective bills make certain changes in language. Some changes result form consolidating related provisions of law. Others are made to achieve uniformity within a title and to conform to contemporary usage. Although P.L. 105-225 made changes in language, no substantive changes are made within the law. 5 U.S. Senate, The Constitution of the United States of America: Analysis and Interpretation, S. Doc 108-17, 108th Cong., 2nd sess. (Washington: GPO, 2002), pp. 359-361, available at [http://www.gpoaccess.gov/constitution/pdf2002/0 11 .pdf]. 6 See discussion of the earlier status of the defunct Federal Asset Disposition Association (FADA) established by the Federal Home Loan Bank Board in 1985 under the incorporation act of the state of Colorado in U.S. General Accounting Office, Failed
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Thrifts: No Compelling Evidence of a Need for the Federal Asset Disposition Association, FFO/FFD89-26 (Washington: GAO, 1989); and U.S. Congress, Senate, Committee on Governmental Affairs, Managing the Public’s Business: Federal Government Corporations, by Ronald C. Moe, Comm. Print 104-18, 104th Cong., 1st sess. (Washington: GPO, 1995), pp. 22-26. 7 On congressional charters generally, see CRS Report RS22230, Congressional or Federal Charters: Overview and Current Issues, by Kevin R. Kosar. 8 See CRS Report RL33314, The Congressional Charter of the American National Red Cross: Overview, History, and Analysis, by Kevin R. Kosar. 9 There was an exception to the rule that congressional charters do not confer any governmental power upon or assign benefits to title 36 corporations. The Department of Veterans Affairs formerly had a departmental rule that any veterans organization seeking free space and telephones in its facilities had to have a congressional charter. That requirement was removed in 1992. 10 Amy Shipley, “Senators Scold USOC Leaders: Congressional Oversight Urged as Part of Restructuring,” Washington Post, January 29, 2003, p. D- 1. A case could be made that the U.S. Olympic Committee is misplaced being in Subtitle II. Its legal status and international responsibilities, arguably, make it similar to the ANRC, which is found in Subtitle III. 11 The Supreme Court in a 1995 case (Michael Lebron v. National Railway Passenger Corporation; 513 U.S. 374) addressed the question of whether Congress can declare, by statutory language, that a corporation created by Congress and assigned attributes of the state, is a “private corporation.” The National Railway Passenger Corporation (AMTRAK), established by Congress (45 U.S.C. 451) and enumerated as a “mixedownership corporation” under 31 U.S.C. 9101(2), was sued by Michael Lebron for rejecting on political grounds an advertising sign he had contracted with them to display. Lebron claimed that his First Amendment rights had been abridged by AMTRAK because it is a government corporation, and therefore an agency of the United States. AMTRAK argued, on the other hand, that its legislation provides that it “will not be an agency or establishment of the United States government” and thus is not subject to constitutional provisions governing freedom of speech. The Court decided that while Congress can determine AMTRAK’s governmental status for purposes within Congress’s control (e.g., whether it is subject to statutes such as the Administrative Procedure Act), Congress cannot make the final determination of AMTRAK’s status as a government entity for purposes of determining constitutional rights of citizens affected by its actions. 12 A copy of the veto message is printed as H.Doc. 292, 89th Cong., 1st sess. (Washington: GPO, 1965), p. 1. 13 U.S. Congress, House, Committee on the Judiciary, Standards for Granting of Federal Charters to Non-Profit Corporations, committee print, 91st Cong.,, 1st sess. (Washington: GPO, 1969). 14 Bankers Trust Company v. Texas and Pacific Railroad Company, 241 U.S. 295; 36 S.Ct. 569; 60 L.Ed. 1010 (1916). 15 Harris v. American Legion, 163 F.Supp. 700 (S.D. Ind. 1958), aff’d 261 F.2d. 594. 16 Patterson v. American National Red Cross, 101 F.Supp. 655 (S.D. Fla. 1951), aff’d 261 F.2d 594.
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Exceptions to this rule exist. The Corporation for the Promotion of Rifle Practice and Firearms Safety, created in 1996 by Congress, and not incorporated first in a state, is exempted (§40707) from the audit requirements. 18 In the 104th Congress, the Subcommittee on Immigration and Claims became responsible for congressionally chartered organizations, taking jurisdiction from the former Subcommittee on Administrative Law and Government Relations. In the 108th Congress, the title of this subcommittee was changed to Subcommittee on Immigration, Border Security, and Claims. 19 See, for instance, U.S. General Accounting Office, Federally Chartered Corporation: Review of the Financial Statement Audit Report for the United States Capitol Historical Society for Fiscal Year 1997, B-280210, directed to the Chairman of the House Judiciary Committee, Henry Hyde, June 16, 1998. 20 U.S. Congress, House, Committee on the Judiciary, Subcommittee on Administrative Law and Government Relations, Oversight of Federal Incorporations, Hearings, 94th Cong., 1st sess. (Washington: GPO, 1975), p. 18. 21 Again, exceptions to this rule exist. The Daughters of the American Revolution (36 U.S.C. 153107) and the American Historical Association report annually to the Smithsonian Institution (36 U.S.C. 153107). 22 Conflicts involving Title 36 corporations arise from time to time. In September 1998, for instance, press accounts described a decision by the Pentagon to ban for three years agents of Academy Life Insurance Company from selling insurance on military bases. The Pentagon charged that Academy Life agents routinely presented themselves as impartial financial counselors with the non-profit, congressionally chartered Non Commissioned Officers Association (NCOA), not as salesmen. The company paid more than $1 million a year for the endorsement of NCOA. Bradley Graham, “Pentagon Bars Life Insurance Firm Because of ‘Deceptive’ Practices,” Washington Post, September 18, 1998, p. A8. 23 U.S. Congressional Record, daily edition, September 12, 2000, H7448-H7455. Sean Scully, “House Rejects Effort to Punish Boy Scouts Over Gay Ban,” Washington Times, September 14, 2000, p. A-3. 24 Jim Fitzgerald, “S.J. Woman Who Will Head Group Responds to Flap Over Noncitizen,”Courier-Post, May 29, 2005, available at [http://www.courierpostonline. com/news/southj ersey/m052905.htm]; and Peter Applebome, “Some Mothers Are More Equal Than Others,” New York Times, June 1, 2005, p. B 1. AGSM has revised its constitution to permit non-citizen mothers. 25 They are (1) American War Mothers, (2) Italian American War Veterans of the United States, and (3) Paralyzed Veterans of America. 26 Editorial, “Teachers Pets,” Opinion Journal, January 3, 2006, available at [http://www.opinionjournal.com/editorial/?id=1 10007761]. This is not the first instance where the media has reported that the National Education Association has engaged in political activities. In 1980, the New York Times reported that an NEA spokesperson told one of its reporters, “We endorsed Carter in 1976 on the basis of his campaign pledges. And he delivered on virtually every one of those promises: increased Federal funding for public education, the establishment of the Department of Education, opposition to the tuition tax credit program, support of the E.R.A. and human and civil rights.” Leslie
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Bennetts, “Teachers Show Their Strength at Garden,” New York Times, August 14, 1980, p. B3. 27 Lisa Hoffman, “A Dozen Vets of World War I Still Soldier On,” Scripps Howard News Service, November 8, 2006, available at [http://www.shns.com/shns/gjndex2.cfm?action= detail&pk=WWIVETS-1 1-08-06]. 28 U.S. Congress, Senate, Committee on the Judiciary, Subcommittee on Federal Charters, Holidays and Celebrations, Federal Charters for Nonprofit Corporations, Hearings, 92nd Congress, 1st session (Washington: GPO, 1971); U.S. Congress, House, Committee on the Judiciary, Subcommittee on Administrative Law and Government Relations, Oversight on Federal Incorporations, Hearings, 94th Cong., 1st sess. (Washington: GPO, 1975). 29 Bill McAllister, “Congressional Charters Abolished: Laws Recognizing Organizations Seen as Meaningless Nuisance,” Washington Post, April 9, 1992, p. 25. 30 In the 1 10th Congress, the Subcommittee on Citizenship, Refugees, Border Security, and International Law has jurisdiction of legislation on federal charters. 31 The moratorium is not to be found in the rules of the subcommittee. Rather, the practice has been for the subcommittee move to adopt a policy of not granting new charters and then to vote to approve this policy. 32 H.Rept. 105-340, sec. 1085 (b) reads: “(a) FINDINGS — Congress finds that the practice of providing by statute Federal charters to certain nonprofit organizations — (1) may be perceived as implying a Government imprimatur of approval of those organizations; and (2) may mistakenly lead to public perception that the United States ensures the integrity and worthiness of those organizations. (b) SENSE OF CONGRESS — It is the sense of Congress — (1) that because of the perceived implicit Government imprimatur of approval conveyed by enactment of a Federal charter for an organization, such a charter should be granted only in the rarest and most extraordinary cases; and (2) that no statutory Federal charter should be enacted after the enactment of this Act unless the charter is approved by Congress upon favorable report by the committees of jurisdiction of the respective Houses.”
In: Congress of the U.S: Commitees, Rules and Procedures ISBN 978-1-60456-416-7 Editor: Sela G. Thomason © 2009 Nova Science Publishers, Inc.
Chapter 9
CASEWORK IN A CONGRESSIONAL OFFICE: BACKGROUND, RULES, LAWS, AND RESOURCES* R. Eric Petersen SUMMARY The term casework in a congressional office refers to the response or services that Members of Congress provide to constituents who request assistance. Each year, thousands of constituents turn to Members of Congress with a wide range of requests, from the simple to the complex. Members and their staffs help constituents deal with administrative agencies by acting as facilitators, ombudsmen, and, in some cases, advocates. In addition to serving individual constituents, some congressional offices also consider as casework liaison activities between the federal government and local governments, businesses, communities, and nonprofit organizations. Members of Congress determine the parameters of their constituent service activities. Casework is conducted for various reasons, including a broadly held understanding among Members and staff that casework is integral to the representational duties of a Member of Congress, and that such activities can be part of an outreach strategy to build political support. In addition, casework can be viewed as an evaluative stage of the legislative process. Constituent inquiries about specific policies, programs, or benefits may suggest areas where programmatic or policy changes require further legislative consideration. One challenge to congressional casework is the widely held public perception that Members of Congress can initiate a broad array of actions resulting in a speedy, favorable outcome. The rules of the House and Senate, and laws and regulations governing federal executive agency activities, however, closely limit interventions made on the behalf of constituents. When performing casework, congressional staff cannot force an agency to expedite a case or act in favor of a constituent. However, congressional staff can intervene to
*
This is an edited, excerpted and augmented edition of a CRS Report for Congress publication, Order Code RL33209, dated December 6, 2006.
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facilitate the appropriate administrative processes, encourage an agency to give a case consideration, and sometimes advocate for a favorable outcome. This chapter discusses House and Senate rules and guidelines, laws, and regulations affecting congressional casework, as well as the role of caseworkers. It also provides sample outlines and document templates for implementing and managing congressional casework. Further casework materials are available at the CRS Casework Resources Web page at [http://www.crs.gov/ reference/general/casework.shtml].
INTRODUCTION The First Amendment to the U.S. Constitution guarantees the "right of the people ... to petition the government for a redress of grievances." In a congressional office, one of the primary examples of that constitutional guarantee is the provision of casework services. Casework in a congressional office refers to the response or services that Members of Congress provide to constituents who request assistance. Casework appears to be one of the more enduring representational activities; Members of Congress have been providing such service since the early years of the American republic.1 In contemporary times, thousands of constituents seek assistance annually from Members of Congress, with requests ranging from the simple to the complex. Members and their staffs help individual constituents deal with administrative agencies by acting as facilitators, ombudsmen, and, in some cases, advocates. Typical casework requests include the following: • • • • • • •
tracking down a misdirected benefits payment; filling out a government form; applying for Social Security, veterans', education, and other federal benefits; explaining government activities or decisions; applying to a military service academy; seeking relief from a federal administrative decision; and emigrating to the United States or applying for U.S. citizenship.
In addition to providing services to individual constituents, some congressional offices also consider as casework their liaison activities between the federal government and local governments or businesses concerned about the effects of federal legislation or regulation on their jurisdiction, or interactions with communities and nonprofit organizations seeking federal grants or other assistance. All congressional offices carry out some type of casework. As part of the process of determining how to carry out their congressional duties, Members of Congress determine the parameters of their constituent service activities.2 Casework is conducted for various reasons, including constituent demand3 and a broadly held understanding among Members and their staff that casework is integral to the representational duties of a Member of Congress.4 Others believe that casework activities can be part of an outreach strategy to build political support among constituents.5 Finally, casework is seen by some as an evaluative stage of the legislative process. Some observers suggest that casework inquiries can provide Members of Congress with a micro-level oversight of executive agency activities, affording Members the
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opportunity to evaluate whether a program is functioning as Congress intended. Constituent inquiries about specific policies, programs, or benefits may also suggest areas in which programmatic or policy changes require further legislative consideration.6 As a consequence, the level and intensity of congressional casework varies among Member offices.7 One challenge to congressional casework is the widely held public perception that Members of Congress can initiate a broad array of actions resulting in a speedy, favorable outcome. The rules of the House and Senate, and laws and regulations governing federal executive agency activities, however, closely limit the extent of an intervention made on behalf of a constituent. When conducting casework, congressional staff cannot force an agency to expedite a case or act in favor of a constituent. However, congressional staff may intervene to facilitate the appropriate administrative processes involved, encourage an agency to give a case consideration, and sometimes advocate for a favorable outcome. Subsequent sections of this chapter discuss House and Senate rules and guidelines, laws, and regulations affecting congressional casework, as well as the role of caseworkers. This chapter also provides sample outlines and document templates for establishing and managing congressional casework. Further casework materials are available at the CRS Casework Resources Web page at [http://www.crs.gov/ reference/general/casework.shtml].
HOUSE AND SENATE RULES GOVERNING CASEWORK Each chamber has rules and guidelines regarding its Members' casework activities. House rules regarding casework services are discussed in the House Ethics Manual.8 Senate Rule XXLIII9 nd the Senate Ethics Manua110 establish parameters for casework services in that chamber. In each chamber, at the request of a constituent or petitioner11 for assistance, a Member of Congress may do the following: • • • • •
•
request information or a status report; urge prompt consideration; arrange for interviews or appointments; express judgments; call for reconsideration of an administrative response that the Member believes is not reasonably supported by statutes, regulations, or considerations of equity or public policy; or perform any other service of a similar nature consistent with the provisions of the rules of the House or Senate.
Senate Rule XLBI (3)12 prohibits the provision of casework assistance on the basis of contributions or services to organizations in which the Senator has a political, personal, or financial interest. Guidelines in the House Ethics Manual13 suggest that when contacting a federal agency on behalf of a constituent, a Representative's officer or employee of the House should not make prohibited comments, receive things of value for providing casework assistance, or improperly pressure agency officials. Further, the guidance indicates that a House employee may not represent anyone before the government, except in the performance of their official duties.
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Casework and the Courts Casework is generally not something that draws Members of Congress or their staff, acting in their official capacity, into a judicial proceeding before the courts. The Senate Ethics Manual describes constituent service as something that occurs in the executive branch and is silent on service before the courts.14 Guidelines in the House Ethics Manual note that judicial interaction should occur in the same manner as activities within the executive branch.15
CASEWORKERS Decisions regarding staff employment in congressional offices rest with each Member of Congress, subject to applicable law and chamber rules.16 Some chamber administrative documents, such as the Member's Congressional Handbook (for the House) or the U.S. Senate Handbook (for the Senate) provide guidelines regarding what procedures must be followed to provide compensation, credentials, and general benefits such as health care and retirement programs to House or Senate employees. Those documents provide no guidance on how a congressional hiring entity might determine the necessity of, or criteria for, a position or the fitness of an applicant for employment. Experienced congressional staff and other observers, however, suggest that a successful congressional caseworker is primarily a problem solver. To carry out their duties, congressional caseworkers typically • • • •
communicate clearly with constituents about what can and cannot be done on their behalf; learn the laws and regulations affecting a constituent's case; build relationships with federal agency personnel; and serve as a neutral facilitator between the constituent and agency.
No specialized training is required to become a congressional caseworker. Individuals who have become caseworkers come from a variety of backgrounds, including recently completed study or work experience in education, law, teaching, social work, political campaigns, government service, and the private sector. Observers suggest that most caseworkers enjoy working with people and have an interest in public service.
CASE MANAGEMENT Matters regarding the management of casework activities are at the discretion of individual congressional offices, subject to the rules of their respective chambers, described above, and relevant law and the priorities of that office. Two laws, the Privacy Act of 197417 and the Health Insurance Portability and Accountability Act of 1996 (BIF'AA),18 affect casework. The Privacy Act affects all constituents with casework inquiries that require interaction with a federal agency. HIPAA may affect constituents with casework inquiries that involve medical or other health-care information.
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Setting Priorities Each congressional office establishes its own policies and procedures regarding the provision of casework services. These policies and procedures are typically based on a number of factors, which may be weighed differently in each congressional office. The factors include • • • • •
the demands or needs of constituents for casework services; the type and nature of cases; the manner in which the office defines casework; office strategy for outreach, including decisions regarding the solicitation of casework; and Member priorities.
The Privacy Act Under the Privacy Act, each agency that maintains records containing an individual's personally identifiable information must have a release from that individual to share information with any other entity. In general, executive branch agencies cannot reply to a congressional inquiry without a Privacy Act release signed by the constituent requesting assistance. Most agencies will accept any signed document from a constituent stating that the constituent grants a Member of Congress access to any record held by an agency that will help resolve the constituent's inquiry.19 (Sample authorizations are included below.) Some agencies, however, issue their own forms and prefer to have that form filed with them when a congressional office initiates a case inquiry. For example, the Internal Revenue Service (IRS) typically requests that congressional caseworkers ask constituents to return a signed copy of IRS form 8821, Tax Information Authorization.20 Constituent correspondence sent to a Member's office does not fall under the protections provided by the Privacy Act or any other statute safeguarding personally identifiable records received and maintained in such offices. However, due to the high probability of an expectation of privacy concerning these communications, and Member interest in maintaining the confidentiality of office activities, many congressional offices develop a policy for safeguarding the privacy of casework- related documents. Such a policy could include • • •
safeguarding casework correspondence and documentation in the office's physical and electronic files; securing electronic files through password protection and automatic backup procedures; and limiting access to casework correspondence files, including working drafts of correspondence, to office personnel.
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HIPAA Rules promulgated under HIF'AA21 give patients the right of access to their medical information and prohibit health plans and health-care providers from using or disclosing identifiable information to most individuals or entities without a patient's written authorization. Examples of constituent inquiries that might involve medical information include claims for benefits under the following programs: • • • • • • • •
Social Security disability; veterans' programs; Medicare; disaster relief; medical services to military members injured on active duty, or to military members, their dependents, and retirees through TRICARE;22 workmens' compensation; and immigration.
Some agencies have determined that congressional requests for medical information related to casework inquiries require a HIPAA release. HIPAA rules also require health plans and providers to give individuals the opportunity to object to the disclosure. Each agency has different procedures for securing patient consent to release information and distributing information to third parties. Consequently, no generic form is available. When medical or other health-care information must be released for a casework inquiry, the agency involved will forward the appropriate release to the congressional office for endorsement by the constituent.
Establishing Procedures Based on the priorities identified in individual congressional offices, many offices compile documentation to clarify policies related to casework. Such documentation could specify casework goals, management procedures, and expectations of staff. This type of document is not required, nor is a congressional standard regarding its format or contents. All decisions regarding activities and operations in a Member's office are within the discretion of the Member, subject to chamber rules and relevant statute. Consequently, procedures are typically developed by modifying standardized outlines and protocols to a particular office, based on the priorities and goals of that office and the preferences and needs of the Member's constituents. The outline below suggests questions to help develop an office casework manual addressing those demands. Sample documents, which may be used in whole or in part, are also provided.
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POTENTIAL QUESTIONS AND ISSUES TO ADDRESS IN A CASEWORK MANUAL: A SAMPLE OUTLINE Introduction to Casework This section of the manual could be where congressional offices propound their approach to constituent service. Information could include a consideration of the role of representation, casework as micro-level oversight, and political issues related to casework. This section could also explain the the role of casework in relation to broader office goals and the caseworker's role in meeting those goals. Questions that might be addressed in this section include the following: • • •
What are the goals of the office? How does casework support or facilitate the achievement of those goals? Where does casework fit in terms of office priorities?
Office Organization This section could provide an overview of office organization and operations. Questions that might be addressed in this section include the following: • • • • • •
What do caseworkers do? Are caseworkers liaisons between the constituent and agency, or are they advocates for the constituent? Who supervises caseworkers? What is the extent of that supervision? To whom does that supervisor report? Where does casework fit in the office organization?
Casework Rules and Practices This section could incorporate the rules and guidelines regarding casework of the House or Senate, as appropriate. Such documents could include Senate Rule XLIII and the Senate Ethics Manual, Chapter 8, "Constituent Services," available at [http://ethics.senate. govidownloads/ pdffiles/manual.pdf], and the Ethics Manual for Members, Officers, and Employees of the U.S. House of Representatives (House Ethics Manual), Chapter 7, "Casework Considerations," available at [http://www.house.goviethics/ethicschap7.html] . In addition, this section could detail rules or procedures specific to the particular congressional office. Questions that might be addressed in this section include •
how to contact the Senate Ethics Committee or the House Committee on Standards of Official Conduct, as appropriate;
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a review of office security and personal safety procedures; and strategies for dealing with people who may be uncooperative, scared, angry, etc.
Step-by-Step Considerations of Casework Activities Intake Intake describes the process by which constituents request casework services and a congressional office prepares to respond. Intake procedures could define the information and materials needed from constituents, including the release of personal information under the Privacy Act of 1974 (sample forms below) and IIIPAA, if necessary. Questions that might be addressed in developing procedures for the intake process include the following: Office Procedures • Who is responsible in your office for intake (caseworkers, outreach or reception staff, everyone)? • What training or protocols are necessary so that everyone charged with intake can do the job effectively? • Will the office open a case file on the basis of a phone call or a constituent visit to an office, or will a written request be required? • Will e-mailed requests for services be accepted? • How will case requests made during outreach and other public events be incorporated into the casework system? Intake, Constituent Verification, and Privacy • • • • • • • •
Does the office establish verification procedures to positively identify constituents? If so, what constitutes acceptable identification? What procedures must be established if constituents cannot produce appropriate documentation of their identity? What procedures might be necessary to obtain a privacy release from constituents who cannot read English or sign their own name' Will the office open a case on behalf of constituents represented by family members or other individuals who hold a power of attorney to act on their behalf? Will the office open a case on behalf of a constituent represented by an attorney or other paid representative? If so, will the office work with the attorney, the constituent, or both? What procedures need to be in place to address potentially high- profile cases?
Case Management and Scheduling •
How much time will the office allow between a constituent inquiry and a response by the office, such as an acknowledgment or a request for more information?
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How much time will the office allow for a constituent to reply to follow up? After that time has elapsed, will the office send a reminder letter or close the case file? How long will incomplete case files due to missing privacy release or other documentation from constituent remain active? What sort of casework/constituent management system (CMS) will be used? (Although a CMS likely has been chosen by the office, explain how it will be integrated, if at all, with casework management.) Who has access to the CMS for reviewing cases, updating records, and closing and archiving files?
Working with Constituents Following the intake process, it is generally necessary to determine the scope of the constituent's case and to set expectations between the caseworker and the constituent. Questions that might be addressed in developing procedures for working with constituents include the following: • • • • •
Will the office take original documents from constituents, or are copies sufficient? How will the office communicate with constituents? How will nonwritten contact be documented? How frequently will the office communicate with constituents to provide updates, status checks, or other information? How will the office communicate these expectations to the constituent? (See the samples below.)
Working with Agencies At the end of the intake process, it is necessary to identify and contact the appropriate agency to address the constituent's concerns. Many offices maintain lists of the executive branch agencies they work with. If such information is not available, preliminary information on agencies with congressional liaison offices can be obtained from CRS Report 98-446, Congressional Liaison Offices of Selected Federal Agencies, by Zina L. Watkins and Carla Berry. Questions that might be addressed in developing procedures for working with executive branch agencies include the following: • • • •
How much time will the office allow between establishing complete constituent information and contact with agency? How much time will the office allow between initial agency contact and subsequent followup? How much time will the office allow between receiving the agency' s response and communicating the response to the constituent? What types of contacts (phone, e-mail, written, face-to-face) are acceptable to make inquiries from the office and to receive responses from the agencies?
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Will individual caseworkers, a coordinator, or a supervisor maintain lists of agency contacts? In the event that the person responsible for maintaining those lists of contacts is not available, how will other staff contact the agencies? Is it necessary to establish specific protocols for working with individual agencies ? (A list of agencies for which protocols might be developed is provided below.)
REFERENCE MATERIALS For each Caseworker • • • • •
Office casework manual. Chamber-appropriate ethics manual chapter on casework. CRS Report 98-446, Congressional Liaison Offices of Selected Federal Agencies, by Zina L. Watkins and Carla Berry. Casework manuals and constituent services guides issued by the agencies for which the caseworker is responsible. Office-developed contact lists.
For each Field Office Location • • • •
Casework intake protocols. Instructions for accessing casework materials in physical or electronic files. Caseworker contact information. General agency contact information.
AGENCIES AND POTENTIAL CATEGORIES FOR WHICH SPECIFIC CASEWORK/CONSTITUENT SERVICE PROTOCOLS COULD BE DEVELOPED Americans with Disabilities Act (ADA) Bankruptcy Child Support Copyright Information — Library of Congress Customs Department of Agriculture (USDA) Department of Commerce Department of Education (ED) Department of Health and Human Services (HHS) Department of Homeland Security (DHS) Department of Housing and Urban Development (HUD) Department of Justice (DOJ)
Casework in a Congressional Office Department of Labor (DOL) Department of State (DOS) Department of the Interior (DOI) Department of Transportation (DOT) Department of the Treasury (Treasury) Department of Veterans Affairs (VA) Environment Environmental Protection Agency (EPA) Equal Employment Opportunity Commission (EEOC) Federal Communications Commission (FCC) Federal Emergency Management Agency (FEMA) Federal Trade Commission (FTC) Flag Requests General Services Administration (GSA) Government Auctions Grants Greetings, Anniversary Greetings, Birthday Greetings, Marking Achievement Healthcare Healthcare, Military, Tricare Healthcare, Veterans' Homeland Security/Military, Coast Guard Housing Immigration Immigration, U.S. Citizenship and Immigration Services (CIS) Immigration, U S Immigration and Customs Enforcement (ICE) Information Requests, general Internal Revenue Service (IRS) Legal Issues Legislation, Constituent Opinion Legislation, Constituent Proposals Medicare Medicare, Part D, Prescription Drug Coverage Military/Homeland Security, Coast Guard Military/National Guard, Air Force Military/National Guard, Army Military/National Guard, Navy Military/Marine Corps National Forests Office of Personnel Management (OPM) Passports Patent Information Post Office Prisons Rural Development
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R. Eric Petersen Scheduling Service Academy Appointments Service Academy Appointments, United States Air Force Academy (Colorado Springs) Service Academy Appointments, United States Coast Guard Academy (New London) Service Academy Appointments, United States Merchant Marine Academy (King's Point) Service Academy Appointments, United States Military Academy (West Point) Service Academy Appointments, United States Naval Academy (Annapolis) Small Business Administration (SBA) Social Programs Social Security Travel Tricare U.S. Citizenship and Immigration Services (CIS) U.S. Customs and Border Protection (CBP) U S Immigration and Customs Enforcement (ICE) Unemployment United States Forest Service Visas/Entry Permits, Education Visas/Entry Permits, Emergency Visas/Entry Permits, Work Washington Visitors
ONLINE RESOURCES Executive Agency Casework Websites Centers for Medicare and Medicaid Services [http://www.cms.hhs.govicenter/legislative.asp] U.S. Citizenship and Immigration Services [http://tinyurl.com/usvla] Department of Veterans Affairs [http://www.va.gov/oca/casework_USA.htm] U.S. Army [http://www.hqda.army.mil/oc11/] Casework Guide [http://www.hqda.army.mil/oc11/108CaseWorkGuide/Casework%202004 %20web linkpdf.pdf] U.S. Marine Corps [http://hqinet001.hqmc.usmc.mil/OLA/constituent%20issues.htm] Tricare [http://www.tricare.osd.mil/planning/congress/casework.cfm]
CRS Resources CRS Casework Web page, [http://www.crs.gov/reference/general/casework.shtml]. CRS Report 98-446. Congressional Liaison Offices of Selected Federal Agencies, by Zina Watkins and Carla Berry. CRS Report RL32113. Congressional Intervention in the Administrative Process: Legal and Ethical Considerations, by Morton Rosenberg and Jack H. Maskell.
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CRS Report RL33213. Congressional Nominations to U.S. Service Academies: An Overview and Resources for Outreach and Management, by. R. Eric Petersen. CRS Report RL33686. Roles and Duties of a Member of Congress, by R. Eric Petersen. CRS Report RS20500. Medical Records Privacy: Questions and Answers on the HIPAA Rule, by C. Stephen Redhead. CRS Report RL33024. Private Immigration Legislation, by Margaret Mikyung Lee. CRS Report RS22450. Procedural Analysis of Private Laws Enacted: 1986-2006,by Christopher M. Davis.
APPENDIX. SAMPLE DOCUMENTS AND RELEASE FORMS SAMPLE CONSTITUENT GUIDE/NEWSLETTER PIECE/ OUTREACH HANDOU23 As a Member of Congress, one of my most important responsibilities is to help constituents interact with the many agencies and offices of the federal government. Staff in my office can provide you with basic information, such as a federal agency phone number, and help you with governmental procedures, such as applying for a passport or visa. In addition, my staff can help with matters involving other government agencies and programs, including • military awards and commendations; • veterans' benefits; • Social Security and Medicare benefits; • immigration matters; • federal worker injury compensation; • small-business concerns; • tax matters and the Internal Revenue Service; • housing; • student loans; and • military academy applications.24 Although we cannot force an agency to expedite your case or act in your favor, we can frequently intervene to facilitate the processes involved, encourage an agency to give your case consideration, and sometimes advocate for a favorable outcome. My office is unable to offer legal advice or recommend an attorney. The rules of the
do not allow me to intervene in or influence the outcome of cases that are under the jurisdiction of any court. Finally, my office cannot intervene in matters under the jurisdiction of local or state governments.25 Although I cannot guarantee a particular outcome, my staff and I will do our best to help you receive a fair and timely response regarding your problem. If I may be of assistance to you, please contact my ______ office at _______. I look forward to hearing from you.
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Handout/Letter for Constituents Opening a Case26 Dear : Thank you for allowing me to assist with your case. Although I cannot guarantee a particular outcome, I want you to know that my staff and I will do our best to help you receive a fair and timely response. As my staff address your concerns, please bear in mind that they cannot force an agency to expedite your case or to act in your favor. My office is not able to offer legal advice or recommend an attorney. The rules of the do not allow me to intervene in, or influence the outcome of, cases that are under the jurisdiction of any court. Finally, our office cannot intervene in matters under the jurisdiction of local or state governments.27 My staff and I are able to facilitate the processes involved, gain a fair hearing for your case, and sometimes advocate for a favorable outcome. To begin the process, federal agencies require that I have a written and signed letter when intervening on behalf of a constituent. This requirement falls under the provisions of the Privacy Act of 1974. The letter must be signed by the person directly affected, unless the person is a minor, or a third party has a notarized Power of Attorney.28 Once we have the release, we can begin to work on your case. If your case involves medical or health-care information, my office may ask you to complete a release specifically authorizing access to medical information necessary to resolve your case. If you have any questions, please contact <STAFFER> at . My staff and I look forward to working with you. Sincerely, <MEMBR OF CONGRESS>
Simple Privacy Act Release Form [Date] To Whom It May Concern: Pursuant to the Privacy Act of 1974, as amended, 5 U.S.C. 552a, I authorize the to provide information regarding my records to <MEMBER OF CONGRESS>.
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Case Information and Privacy Act Release Form Information Release The Privacy Act of 1974 is a federal law designed to protect you from any unauthorized use and exchange of personal information by federal agencies. Any information that a federal agency has on file regarding your dealings with the United States government may not, with a few exceptions, be given to another agency or Member of Congress without your written permission. Family members, friends, or other interested parties generally may not authorize on your behalf the release of information covered by the Privacy Act. Please describe the situation for which you are requesting assistance:
I hereby request the assistance of the Office of to resolve the matter described above. I authorize and <111S/HER> staff to receive any information that they might need to provide this assistance. The information I have provided to <SENATOR/REPRESENTATIVE> is true and accurate to the best of my knowledge and belief. The assistance I have requested from <MEMBER>' s office is in no way an attempt to evade or violate any federal, state, or local law.29 SIGNED:__________________________________________DATE:____________ Name: (please print)________________________________Date of Birth:_________ Address:_____________________________________________________________ City:________________ State:_______________ Zip:__________ Day Telephone:____________________ Evening Telephone:________________ E-mail Address:_________________________ Federal Agency Involved:____________ Case Number (if applicable):____________
ENDNOTES 1
For example, Representative John Quincy Adams of Massachusetts, who served as President before his election to the House, noted in his diary that he provided services to a number of constituents. Requests included corrections of the date on a military pension
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certificate, discussions with the Secretary of the Treasury regarding the reappointment of a collector in Adams' district, and numerous applications for Post Office appointments. See Leonard D. White, The Jacksonians: A Study in Administrative History 1829-1861, (New York: The MacMillan Company, 1954), pp. 143-145. In April and May of 1870, Representative James A. Garfield of Ohio, who later served as President, received constituent "requests to search for a miscarried letter, to secure favorable action on pension claims, to get a decision allowing a patent extension, to obtain payment of a claim and to write a book review." Leonard D. White, The Republican Era: 1869-1901, A Study in Administrative History (New York: The Macmillan Company, 1958), pp. 70-73, quote, pp.70-71. Other early examples may be found in Leonard D. White, The Jeffersonians: A Study in Administrative History, 1801-1829 (New York: The Macmillan Company, 1951),pp. 106-107, 375-376; and John Spencer Bassett, "James K. Polk and His Constituents, 1831-1832," American Historical Review, vol. 28, Oct. 1922, pp. 6877. 2 See CRS Report RL33686, Roles and Duties of a Member of Congress, by R. Eric Petersen. 3 John R. Johannes, "Explaining Congressional Casework Styles," American Journal of Political Science, vol. 27, Aug. 1983, pp. 530-547. 4 Dennis F. Thompson, Ethics in Congress: From Individual to Institutional Corruption, (Washington: The Brookings Institution, 1995), pp. 77-78; David E. Price, The Congressional Experience: A View From the Hill (Boulder, CO: Westview Press, 1992), pp. 113-119; Rep. Lee H. Hamilton, "Congressional Casework," Congressional Record, vol. 138, Apr. 29, 1992, p. 9814; Heinz Eulau and Paul D. Karps, "The Puzzle of Representation: Specifying Components of Responsiveness," Legislative Studies Quarterly, vol. 2, Aug. 1977, pp. 243-245; and U.S. Congress, Joint Committee on the Organization of Congress, Organization of Congress, 79th Cong., 2nd sess., H.Rept. 1675 (Washington: GPO, 1946), p. 15. 5 Kelly Patricia O'Meara, "For Constituents, Help is on the Hill," Insight on the News, Feb. 22, 1999, p. 32; Bruce Cain, John Ferejohn, and Morris Fiorina, The Personal Vote: Constituency Service and Electoral Independence (Cambridge, MA: Harvard University Press, 1987), pp. 63-34; and Richard F. Fenno, Jr., Home Style: House Members in Their Districts (New York: Harper Collins, 1978), pp.101-113. Although the perception that casework creates positive political benefits for Members of Congress is widely held in congressional and some scholarly communities, evidence that supports that contention directly is not conclusive. Some congressional scholars have done analyses suggesting that casework activities can serve political ends, such as increasing name recognition and creating an image of concern, and that such actions can lead to electoral success. See George Serra, "What's In It for Me?: The Impact of Congressional Casework on Constituent Evaluation," American Politics Quarterly, vol. 22, Oct. 1994, pp. 403-420; George Serra and David Moon, "Casework, Issue Positions, and Voting in Congressional Elections: A District Analysis," Journal of Politics, vol. 56, June, 1994, pp. 2001-213; George Serra and Albert D. Cover, "The Electoral Consequences of Perquisite Use: The Casework Case," Legislative Studies Quarterly, vol. 17, Mar. 1992, pp. 233-246; Morris P. Fiorina, Congress: Keystone of the Washington Establishment 2nd ed. (New Haven, CT: Yale University Press, 1989); Laurily K Epstein and Kathleen A. Frankovic, "Casework and the Electoral Margins: Insurance is Prudent," Polity, vol. 14, Dec. 1982, pp. 691-700; and Diana Evans
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Yiannakis, "The Grateful Electorate: Casework and Congressional Elections," American Journal of Political Science, vol. 25, Sept. 1981, pp.568-580. Other scholars have been unable to identify a direct connection. See John C. McAdams, "Congressmen, Perquisites, and Elections," Journal of Politics, vol. 50, June 1988, pp. 412-439; Jon R. Bond, Cary Covington, and Richard Fleisher, "Explaining Challenger Quality in Congressional Elections," Journal of Politics, vol. 47, June 1985, pp. 510-529; John R. Johannes, To Serve the People: Congress and Constituency Service, (Lincoln, NE: University of Nebraska Press, 1984), pp. 187-212; John R. Johannes and John McAdams, "The Congressional Incumbency Effect: Is it Casework, Compatibility or Something Else?," American Journal of Political Science, vol. 25, June 1981, pp.520-542. 6 Larry P. Ortiz, Cindy Wirz, Kelli Semion, and Ciro Rodriguez, "Legislative Casework: When Policy and Practice Intersect," Journal of Sociology and Social Welfare, vol. 31, June 2004, pp. 49-52; Rep. Lee H. Hamilton, "Casework," Congressional Record, vol. 142, July 24, 1996, pp. 19015-19016; and John R. Johannes, "Casework as a Technique of U.S. Congressional Oversight of the Executive," Legislative Studies Quarterly, vol. 4, Aug. 1979, pp. 325-351. 7 For example, one study tracked the number of cases in congressional offices in the 95th (1977-1978) and 97th (1981-1982) Congresses. In the 95th Congress, a sample of congressional offices was found to receive an average of approximately 93 new cases each week. The number of cases in individual offices ranged from 10 to 465 new cases per week. In the 97th Congress, data taken from a different, larger sample of congressional offices found that the offices received an average of approximately 91 new cases per week. During that period, the range varied between 4 and 800 cases per office per week. See and John C. McAdams, "Entrepreneur or Agent: Congressmen and the Distribution of Casework, 1977-1978," The Western Political Quarterly, vol. 40, Sept. 1987, pp. 535-553 (data quoted from p. 539), and John R. Johannes, "The Distribution of Casework in the U.S. Congress: An Uneven Burden," Legislative Studies Quarterly, vol. 4, Nov. 1980, pp. 517-544. 8 The House ethics manual notes that Members and staff of the House often assist constituents in their dealings with administrative agencies by acting as facilitators or "ombudsmen." Members may properly communicate with agencies on behalf of constituents: • to request information or status reports; • to urge prompt consideration of a matter based on the merits of the case; • to arrange for appointments; • to express judgment on a matter (subject to ex parte communication rules); and/or • to ask for reconsideration, based on law and regulation, of an administrative decision. Congressional officials should make clear to administrators that action is only being requested to the extent consistent with governing law and regulations. U.S. Congress, House, Ethics Manual for Members, Officers, and Employees of the U.S. House of Representatives, (House Ethics Manual), 102nd Cong. 1" sess., available at [http://www.house.gov/ethics/ethicschap7.html]. 9 Senate Rule XLBI (2) states that
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at the request of a petitioner, a Member of the Senate, or a Senate employee, may communicate with an executive or independent government official or agency on any matter to: a. request information or a status report; b. urge prompt consideration; c. arrange for interviews or appointments; d. express judgments; e. call for reconsideration of an administrative response which the Member believes is not reasonably supported by statutes, regulations or considerations of equity or public policy; or f. perform any other service of a similar nature consistent with the provisions of this rule. The rule is available on the Senate website at [http://www.senate.gov/legislative/ common/ briefing/Standing_Rules_Senate.htm#43]. 10 U.S. Congress, Senate, Select Committee on Ethics, Senate Ethics Manual, 108th Cong., Pt Sess., S. Pub. 108-1 (Washington: GPO, 2003), pp. 177-185, available at [http://ethics. senate.gov/downloads/pdffiles/manual.pdf]. 11 Senate Rule XLBI recognizes that not everyone who seeks assistance from a Senator will be a constituent of the state the Senator represents, and refers to all who might seek casework services as a "petitioner." No such distinction is drawn in the House ethics manual, which refers generally to constituents as the recipients of casework services. Examples of nonconstituents who might seek congressional intervention in administrative proceedings include foreign-born individuals seeking to emigrate to the United States, or a family or other interested parties who live outside a Member's constituency on behalf of a resident constituent. In the House, guidance issued by the Committee on Standards of Official Conduct suggests that "particular care should be exercised when providing assistance to individuals who are not from the Member's congressional district." The guidance also indicates that a Member should not use official resources to provide casework for individuals who live outside the district the Member represents. When a Representative is unable to assist a nonconstituent, the Member may refer the person to his or her own Rep. or Sen. (House Ethics Manual, at [http://www.house.gov/ ethics/ethicschap7.html]. 12 Senate Rule 43 (3) states that "the decision to provide assistance to petitioners may not be made on the basis of contributions or services, or promises of contributions or services, to the Member's political campaigns or to other organizations in which the Member has a political, personal, or financial interest." 13 The House Ethics Manual states that in communicating with a federal agency on behalf of a constituent, a Member, officer, or employee of the House should not: • make prohibited, off-the-record comments to an official considering a matter in a formal proceeding; • receive money or things of value (other than congressional salary) in return for or because of official help; or • exert undue or improper pressure on agency officials, such as by suggestions of favoritism or threats of reprisals.
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A House employee may not privately represent someone before the government other than in the performance of official duties. 14 In the Senate Ethics Manual: the general advice of the Ethics Committee concerning pending court actions is that Senate offices should refrain from intervening in such legal actions (unless the office becomes a party to the suit, or seeks leave of court to intervene as amicus curiae) until the matter has reached a resolution in the courts. The principle behind such advice is that the judicial system is the appropriate forum for the resolution of legal disputes and, therefore, the system should be allowed to function without interference from outside sources. U.S. Senate, Select Committee on Ethics, Senate Ethics Manual, p. 178, available at [http://ethic s . senate.gov/downloads/pdffiles/manual.pdf]. 15 In the House Ethics Manual, committee guidance suggests that "the standards applicable to federal agency contacts may also apply when a Member makes communications on behalf of constituents to courts, other governments, or private entities." U.S. House, Ethics Manual, [http://www.house.gov/ethic s/ethicschap7.html] . 16 In the House, the Member's Congressional Handbook notes that "each Member is the employing authority [for their office]; the Member determines the terms and conditions of employment and service for their staff. These terms and conditions must be consistent with applicable federal laws and House Rules" [http://www.house.gov/cha/mchandbook html] 17 P.L. 93-579, 5 U.S.C. 552a. 18 P.L. 104-191, 42 U.S.C. 201 note. 19 Some congressional offices also provide casework services related to non-federal issues. In these circumstances, state or municipal regulations related to privacy protection may need to be addressed to provide assistance to constituents. 20 The form is available electronically from the IRS website, [http://www.irs.gov]. 21 45 C.F.R. Parts 160, 164. For more information on HIPAA and medical records privacy, see CRS Report RS20500, Medical Records Privacy: Questions and Answers on the HIPAA Rule, by C. Stephen Redhead. 22 TRICARE is a managed health care program provided by the Department of Defense (DOD) for active duty military, active duty service families, retirees and their families, and other beneficiaries, available at [http://www.tricare.osd.mili]. 23 This is a sample document and is not intended to be definitive. Any information may be deleted or modified as appropriate to specific Member office policies and procedures. 24 The list of possible services is an example and does not represent the entire range of potential constituent services. 25 Some congressional offices offer limited assistance on matters related to state or municipal policies and services. 26 This is a sample document and is not intended to be definitive. Any information may be deleted or modified as appropriate to individual Member office policies and procedures. 27 Some congressional offices offer limited assistance on matters related to state or municipal policies and services. 28 Some congressional offices do not accept cases through a power of attorney. 29 Some congressional offices require constituents to certify that their case requests are lawful. This certification is not required under the Privacy Act. Some agencies may
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In: Congress of the U.S: Commitees, Rules and Procedures ISBN 978-1-60456-416-7 Editor: Sela G. Thomason © 2009 Nova Science Publishers, Inc.
Chapter 10
RETIREMENT BENEFITS * FOR MEMBERS OF CONGRESS Patrick J. Purcell SUMMARY Prior to 1984, neither federal civil service workers nor Members of Congress paid taxes to Social Security, nor were they eligible for Social Security benefits. Members of Congress and other federal employees were instead covered by a separate pension plan called the Civil Service Retirement System (CSRS). The 1983 amendments to the Social Security Act (P.L. 98-2 1) required federal employees first hired after 1983 to participate in Social Security. These amendments also required all Members of Congress to participate in Social Security as of January 1, 1984, regardless of when they first entered Congress. Because the CSRS was not designed to coordinate with Social Security, Congress directed the development of a new retirement plan for federal workers. The result was the Federal Employees’ Retirement System Act of 1986 (P.L. 99-335). Members of Congress first elected in 1984 or later are covered automatically under the Federal Employees’ Retirement System (FERS), unless they decline this coverage. Those who already were in Congress when Social Security coverage went into effect could either remain in CSRS or change their coverage to FERS. Members are now covered under one of four different retirement arrangements: • •
• • *
Full coverage under both CSRS and Social Security; The “CSRS Offset” plan, which includes both CSRS and Social Security, but with CSRS contributions and benefits reduced by Social Security contributions and benefits; FERS plus Social Security; or Social Security alone.
This is an edited, excerpted and augmented edition of a CRS Report for Congress publication, Order Code RL30631, dated February 9, 2007.
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Congressional pensions, like those of other federal employees, are financed through a combination of employee and employer contributions. All Members pay Social Security payroll taxes equal to 6.2% of the Social Security taxable wage base ($97,500 in 2007). Members covered by FERS also pay 1.3% of full salary to the Civil Service Retirement and Disability Fund. Members covered by CSRS Offset pay 1.8% of the first $97,500 of salary, and 8.0% of salary above this amount, into the Civil Service Retirement and Disability Fund. Under both CSRS and FERS, Members of Congress are eligible for a pension at age 62 if they have completed at least five years of service. Members are eligible for a pension at age 50 if they have completed 20 years of service, or at any age after completing 25 years of service. The amount of the pension depends on years of service and the average of the highest three years of salary. By law, the starting amount of a Member’s retirement annuity may not exceed 80% of his or her final salary. As of October 1, 2006, 413 retired Members of Congress were receiving federal pensions based fully or in part on their congressional service. Of this number, 290 had retired under CSRS and were receiving an average annual pension of $60,972. A total of 123 Members had retired with service under both CSRS and FERS or with service under FERS only. Their average annual pension was $35,952 in 2006.
BACKGROUND ON CONGRESSIONAL PENSIONS The Civil Service Retirement Act of 1920 (P.L. 66-2 15) established a pension system for federal employees in the executive branch of government. Coverage under the Civil Service Retirement System (CSRS) was extended to Congress in January 1942 by P.L. 77-411. That law was repealed just two months later in response to adverse public opinion. In 1946, P.L. 79-60 1 again extended CSRS coverage to Congress, at the option of Members, with higher contributions and greater benefits than those applicable to regular federal employees. In reference to that legislation, S.Rept. 79-1400 (May 31, 1946) stated that a retirement plan for Congress: would contribute to independence of thought and action, [be] an inducement for retirement for those of retiring age or with other infirmities, [and] bring into the legislative service a larger number of younger Members with fresh energy and new viewpoints concerning the economic, social, and political problems of the Nation.
The Social Security Amendments of 1983 (P.L. 98-2 1) required all federal employees hired in 1984 or later to participate in Social Security. These amendments also required all Members of Congress to participate in Social Security as of January 1, 1984, regardless of when they first entered Congress. The Civil Service Retirement System, having been established in 1920, predated passage of the Social Security Act by 15 years. Requiring federal workers to participate in both CSRS and Social Security would have duplicated some benefits and would have resulted in employee payroll deductions for the two programs that in 2007 would exceed 13% of pay. After mandating Social Security coverage of new federal employees beginning in 1984, Congress directed the development of a new retirement plan for federal workers with Social Security coverage as its foundation. The result of this effort was the Federal Employees’ Retirement System Act of 1986 (P.L. 99-335).
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The Federal Employees’ Retirement System (FERS) went into effect in 1987, and employees first hired in 1984 or later were automatically enrolled in this plan. Employees who had been in the federal government before 1984 were given the option to remain in CSRS — without Social Security coverage — or to switch to FERS. The options for Members of Congress differed from those available to other federal employees because the 1983 amendments required all Members of Congress to participate in Social Security. Members first elected in 1984 or later were given the option to enroll in FERS as well as being covered by Social Security, or to be covered only by Social Security. Members who had been in Congress before 1984 could elect to stay in CSRS in addition to being covered by Social Security; to elect coverage under an “offset plan” that integrates CSRS and Social Security; to elect coverage under FERS in addition to being covered by Social Security; or to be covered only by Social Security.1 Because of the uncertain tenure of congressional service, FERS was designed, as CSRS had been, to provide a larger benefit for each year of service to Members of Congress and congressional staff than to most other federal employees. Members of Congress also become eligible for retirement annuities under CSRS and FERS at an earlier age and with fewer years of service than most other federal employees. However, Members of Congress and congressional staff pay a higher percentage of salary for their retirement benefits than do most other federal employees. As of October 1, 2006, 413 retired Members of Congress were receiving federal pensions based fully or in part on their congressional service. Of this number, 290 had retired under CSRS and 123 had retired either with service under both CSRS and FERS or with service under FERS only. Members who had retired under CSRS had completed, on average, 20 years of federal service. Their average annual CSRS annuity in 2006 was $60,972. Those who had retired under FERS had completed, on average, 16.3 years of federal service. Their average retirement annuity in 2006 (not including Social Security) was $35,952. The average age of retired Members of Congress receiving retirement annuities in 2006 was 79 for those who had retired under CSRS and 69 for those who had retired under FERS.
RETIREMENT PLANS AVAILABLE TO MEMBERS OF CONGRESS Members First Elected before 1984 Members of Congress who were first elected before 1984 may be covered under one of four retirement plans: • •
• •
Dual Coverage. This is full coverage by both CSRS and Social Security. CSRS Offset. This is coverage by CSRS and Social Security, but with CSRS contributions and benefits reduced (“offset”) by the amount of Social Security contributions and benefits. FERS. This is composed of the FERS basic annuity, Social Security, and the Thrift Savings Plan (TSP). Social Security only. This occurs if the Member declines other coverage.
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Members and other federal employees who were covered under CSRS had the opportunity to switch to FERS during two six-month “open seasons” in 1987 and 1998.
Members First Elected since 1984 Members of Congress who were first elected in 1984 or later are covered by the Federal Employees’ Retirement System unless they decline this coverage, in which case they are covered only by Social Security. FERS is composed of three elements: • • •
Social Security, the FERS basic annuity, a monthly pension based on years of service and the average of the three highest consecutive years of basic pay, the Thrift Savings Plan (TSP), into which participants can deposit up to a maximum of $15,500 in 2007. Their employing agency matches employee contributions up to 5% of pay.
Members who enter Congress with at least five years of previous federal employment covered by CSRS can choose to participate in the CSRS Offset plan rather than FERS.
AGE AND LENGTH-OF-SERVICE REQUIREMENTS Members become vested in (legally entitled to) a pension benefit under CSRS or FERS after five years of service. The age and service requirements for retirement eligibility are determined by the plan under which a Member is covered at the time of retirement, regardless of whether he or she has previous service covered under a different plan.2 Depending on a Member’s age and years of service, a pension can be taken immediately upon retirement or only on a deferred basis. Likewise, the Member’s age and years of service, as well as the starting date of the annuity, will determine whether he or she is eligible for a full pension or a reduced pension.
Retirement under CSRS Four retirement scenarios are possible for Members covered by CSRS or the CSRS Offset Plan: Retirement with an immediate, full pension is available to Members age 60 or older with 10 years of service in Congress, or age 62 with five years of civilian federal service, including service in Congress. Retirement with an immediate, reduced pension is available to Members aged 55 to 59 with at least 30 years of service. It is also allowed if the Member separates for a reason other than resignation or expulsion after having completed 25 years of
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service, or after reaching age 50 and with 20 years of service, or after having served in nine Congresses.3 Retirement with a deferred, full pension is available if the Member leaves Congress before reaching the minimum age required to receive an immediate, unreduced pension and delays receipt until reaching the age at which full benefits are paid. A full pension can be taken at age 62 if the Member had five through nine years of federal service, or at age 60 if the Member had at least 10 years of service in Congress. At the time of separation, the Member must leave all contributions in the plan in order to be eligible for the deferred pension. Retirement with a deferred, reduced pension is available to a Member at age 50 if he or she retired before that age and had at least 20 years of federal service, including at least 10 years as a Member of Congress.
Retirement under FERS There are four possible retirement scenarios for Members who are covered by FERS: Retirement with an immediate, full pension is available to Members at age 62 or older with at least five years of federal service; at age 50 or older with at least 20 years of service; and at any age to Members with at least 25 years of service. Retirement with an immediate, reduced pension is available at age 55 to Members born before 1948 with at least 10 years of service. The minimum age will increase to 56 for Members born from 1953 through 1964 and to 57 for those born in 1970 or later. Retirement with a deferred, full pension is available at age 62 to former Members of Congress with at least five years of federal service. Retirement with a deferred, reduced pension is available at the minimum retirement age of 55 to 57 (depending on year of birth) to a former Member who has completed at least 10 years of federal service. The pension annuity will be permanently reduced if it begins before age 62.4
Coordination of FERS Benefits with Social Security The FERS basic annuity was designed to supplement Social Security retirement benefits. FERS retirees under age 62 who retire with an unreduced pension are eligible for a temporary supplement to their FERS pension to fill in until Social Security eligibility is reached at age 62. The supplement is an amount estimated to equal the Social Security benefits accrued from federal service, and is paid from the time of retirement until age 62. The FERS supplement ends at age 62 regardless of whether the individual applies for Social Security at that time. Like Social Security benefits paid before the full retirement age (65 years and 8 months in 2007), the supplement reduced if the retiree has earnings above a specified annual limit. This “FERS supplement” is payable to Members who retire at ages 55 to 57 (depending on year of birth) or older with at least 20 years of service. A former Member with at least 20 years of service also may begin to draw the supplement upon reaching age 55 to 57.5
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Social Security Retirement Benefits Since January 1, 1984, all Members of Congress have been required to pay Social Security taxes. The laws governing payment of Social Security taxes and eligibility for Social Security benefits apply to Members of Congress in the same way they apply to any other covered worker. Retirement with full benefits. The “full retirement age” under Social Security is 65 years and 8 months in 2007. Forty quarters of covered employment are required to be eligible for retired worker benefits.6 Under current law, the age for full benefits is gradually increasing, beginning with people born in 1937, until it reaches age 67 for those born in 1960 or later. Retirement with reduced benefits. The earliest that retired worker benefits can be taken under Social Security is age 62. Benefits taken at 62 are permanently reduced, based on the number of months between the person’s age at retirement and the full retirement age. A worker retiring at age 62 in 2007 would receive a benefit equal to 75% of the benefit that would be payable if the beneficiary had reach the full retirement age of 65 years and 8 months. When the full retirement age reaches age 67, the monthly benefit paid at 62 will be 70% of the amount that would be paid if the beneficiary were age 67.
Social Security Earnings Limit Social Security benefits are reduced for beneficiaries under age 65 who have earnings from paid employment that exceed thresholds that are defined in statute. In 2007, Social Security beneficiaries under age 65 are subject to a reduction in benefits if their annual earnings exceed $12,960 ($1,080 per month). The earnings threshold is adjusted annually for average wage growth in the U.S. economy. Beneficiaries under age 65 lose $1 in benefits for every $2 in earnings above the threshold. Retirees aged 65 or older receive full benefits regardless of earnings.
The Thrift Savings Plan: An Integral Component of FERS The TSP is a defined contribution retirement plan similar to those authorized under Section 401(k) of the tax code for employers in the private sector. For all federal employees covered by FERS, their employing agency contributes an amount equal to 1% of base pay to the TSP, whether or not the employee chooses to contribute anything to the plan. In 2007, employees covered by FERS can make voluntary contributions of up $15,500. Employee contributions of up to 5% of pay are matched by the employing agency. Contributions are made on a pre-tax basis, and neither the contributions nor investment earnings that accrue to the plan are taxed until the money is withdrawn. Employees covered by CSRS can participate in the TSP, but they receive no employer matching contributions. (See "The Thrift Savings Plan" section for more information.)
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REQUIRED CONTRIBUTIONS TO RETIREMENT PROGRAMS CSRS. Regular federal employees covered by CSRS contribute 7.0% of pay to the Civil Service Retirement System. Their employing agencies contribute a further 7.0% of payroll to the CSRS on behalf of these workers. Members of Congress who are covered by CSRS are required to contribute 8.0% of salary to the plan, and the Congress of the United States makes an employer contribution of 8.0% of payroll on their behalf. CSRS Offset. A Member of Congress who is covered by the CSRS Offset plan contributes 1.8% of pay up to the Social Security taxable wage base ($97,500 in 2007), and 8.0% of pay above this amount, to the CSRS. FERS. Regular federal employees contribute 0.8% of pay to the Federal Employees’ Retirement System and their employing agencies contribute an amount equal to 11% of pay.7 Members of Congress and congressional staff pay 1.3% of salary for FERS coverage, and the Congress pays approximately 16% of payroll as the employer contribution for Members and congressional staff covered by FERS. Temporary Increase in Employee Contributions to CSRS and FERS. Under the terms of the Balanced Budget Act of 1997 (P.L. 105-33), employee contributions under CSRS and FERS rose by 0.25% in January 1999 and by a further 0.15% on January 1, 2000. Employee contribution rates were scheduled to increase by another 0.10% on January 1, 2001. Employee contributions were then revert to the 1998 levels after December 31, 2002. Pension benefits accrued by federal workers would not have increased as a result of the temporarily higher employee contributions to CSRS and FERS mandated by the Balanced Budget Act. The higher contribution rates mandated by the Balanced Budget Act were repealed for all federal employees except Members of Congress by P.L. 106-346, the FY2001 Department of Transportation and Related Agencies Appropriations Act. Contribution rates for Members reverted to 8.0% under CSRS and 1.3% under FERS on January 1, 2003. Social Security Payroll Taxes. All Members of Congress pay Social Security payroll taxes, regardless of their other retirement plan coverage. In 2007, the Social Security tax rate of 6.2% applies to gross wages up to $97,500. The Social Security taxable wage base is adjusted each year for wage growth in the economy.8 Members of Congress, like all other workers covered by Social Security, pay Medicare Hospital Insurance taxes on all earnings at a rate of 1.45% of pay in 2007.
Total Payroll Deductions Total payroll deductions for federal retirement programs depend on the combination of programs by which a Member is covered. The required payments are exclusive of any voluntary investments in the TSP. These are the required contributions in 2007: Dual Coverage. Members with full CSRS coverage plus Social Security contribute 14.2% of the first $97,500 of salary (8.0% to CSRS plus 6.2% to Social Security). They pay 8.0% to CSRS on salary above $97,500.
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Patrick J. Purcell CSRS Offset. Members in the CSRS Offset Plan pay 6.2% to Social Security and 1.8% to CSRS on the first $97,500 of salary. They pay 8.0% to CSRS on salary above $97,500. FERS. Members covered by FERS pay 6.2% to Social Security and 1.3% to FERS on the first $97,500 of salary. They pay 1.3% to FERS on salary above $97,500. Social Security. All Members pay 6.2% of their first $97,500 in gross wages to Social Security. The taxable wage base of $97,500 is indexed to national average wage growth and is adjusted annually.
PENSION PLAN BENEFIT FORMULAS Pension benefits under both CSRS and FERS are computed according to (1) the retiree’s average annual salary for the three consecutive years of highest pay (known as “high-3” salary); (2) the number of years of service covered by the pension plan; and, (3) the “accrual rate” at which benefits accumulate for each year of service. The pension is the product of these factors, expressed as: High-3 Salary
x
Years of Accrual Service X Rate =
Annual Pension
Pension Benefits under CSRS The accrual rate for each year of congressional service covered by CSRS is 2.5%. Therefore, the CSRS pension equals: High-3 Salary
x
Years of Service x
.025 =
CSRS Pension
For example, after 30 years of congressional service and a high-3 average salary of $161,800, the initial annual CSRS pension for a Member who retired in December 2006 at the end of the 109th Congress would be:9 $161,800 x 30 x .025 = $121,350 Federal law limits the maximum CSRS pension that may be paid at the start of retirement to 80% of the Member’s final annual salary (see 5 U.S.C. § 8339(f)). To receive an initial pension equal to 80% of final salary, a Member must complete 32 years of congressional service covered by CSRS (32 x .025 = .80). The smallest starting pension under CSRS is 12.5% of high-3 salary for a Member with five years service. (Pensions based on less than 10 years of service cannot begin before age 62.) Most Members who entered Congress before 1984 and who chose to stay in the CSRS elected the “CSRS offset” plan. When a Member who has retired under the offset plan is age 62 or older, the CSRS pension is reduced by the amount of Social Security benefits that he or
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she earned during congressional service. In the example above, the offset would be approximately $12,500 in 2007.
Pension Benefits under FERS The accrual rate for congressional service covered by FERS is 1.7% for the first 20 years and 1.0% for each year beyond the 20th. The basic retirement annuity under FERS is equal to:
Members who began congressional service before 1984 and who elected to join FERS will receive credit under FERS from January 1, 1984, forward. Thus, at the close of the 109th Congress in December 2006, participants had a maximum of 23 years of service under FERS. Assuming that a Member retired at the end of 2006 with 20 years of congressional service under FERS, and a high-3 average salary of $161,800, the initial annual FERS pension in 2007 would be: [$161,800 x .017 x 20] = $55,012 There is no maximum pension under FERS. (It would take 66 years of service under FERS to reach the 80% maximum permissible under CSRS.) The smallest unreduced FERS pension is 8.5% of high-3 salary with five years of service (.017 x 5 years), which is payable no earlier than age 62. A Member with 10 years of service who takes a FERS pension at the earliest allowable age of 55 would receive a reduced pension equal to 11% of high-3 salary (.017 x 10 years, reduced by .05 times the seven-year difference between the individual’s age at retirement and age 62).
Social Security Benefits Social Security benefits are determined by a formula based on earnings in all Social Security-covered employment. The benefit structure of Social Security was designed to replace a higher proportion of earnings for lower-paid workers than for the higher-paid. For example, the initial benefit payable to a low-wage worker retiring at the full retirement age in 2007 is $841 per month, or $10,092 per year.10 This is equivalent to about 94% of the annual earnings of a worker employed year-round, full-time at the minimum wage in 2007.11 For a worker whose earnings each year were equal to or greater than the Social Security maximum taxable wage base, the initial benefit paid to a new retiree the full retirement age in 2007 is $2,120 per month, or $25,440 per year. This is equal to about 26% of the maximum taxable wage base of $97,500 in 2005. It would represent a still smaller percentage of the annual wages of workers whose earnings exceeded the taxable wage base.
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PENSIONS FOR MEMBERS WITH SERVICE UNDER BOTH CSRS AND FERS Members who were participating in CSRS when the FERS plan went into effect in 1987 could elect to leave CSRS and join FERS during a six-month “open season” in 1987.12 Members who switched to FERS are entitled to a CSRS pension for the years before 1984, provided that they had completed at least five years of service under CSRS by December 31, 1983. Their service from January 1, 1984, onward is covered under FERS. When these Members retire, their pension is computed using the CSRS formula for the CSRS-covered years and the FERS formula for the years covered by FERS. The same high-3 salary is used in both formulas, which is generally the salary earned in the three years immediately preceding retirement. The two pension amounts (CSRS and FERS) are then added together. For Members who switched from CSRS to FERS, FERS rules govern the age and years of service for retirement eligibility. For example, the pension for a Representative or Senator who retired in December 2006 at the end of the 109th Congress with a total of 30 years of service (7 years covered under CSRS and 23 years covered under FERS) and a high-3 salary of $161,800 would be: $161,800 x .025 x + $161,800 x .017 x + $161,800 x .01 x Total pension = $88,181
7 = $28,315 (CSRS) 20 = $55,012 (FERS) 3 = $ 4,854 (FERS)
RETIREMENT BENEFITS UNDER THE CSRS OFFSET PLAN Members who were participating in CSRS before January 1, 1984, and who chose not to switch to FERS could elect either to have full coverage under both CSRS and Social Security or to stay in CSRS and have their CSRS contributions and benefits reduced (“offset”) by the amount of Social Security taxes paid and Social Security benefits received. New Members who enter Congress with at least five years of previous civilian federal employment that was covered under CSRS also may join the CSRS Offset plan. Under this plan, a Members pays 6.2% of salary up to the Social Security taxable maximum ($97,500 in 2007) to Social Security and 1.8% of salary up to this earnings level to CSRS. When annual earnings reach the maximum amount taxable under Social Security, the Member pays 8.0% of salary for the rest of the year to CSRS. During retirement, the individual’s CSRS pension is reduced by the amount of the Social Security benefit that is attributable to their federal service. The reduction in the CSRS annuity begins at age 62 whether or not the retiree actually begins to draw Social Security at that time. As an example of the CSRS offset plan, assume that a Representative or Senator retired at the end of the 109th Congress with 30 years of congressional service. According to the CSRS benefit formula, this Member’s initial retirement annuity would be $121,350. However, if he or she were age 62 or older, this amount would be reduced by an amount equal to the Social Security benefits earned from congressional service from January 1, 1984, through December 31, 2006. For an individual retiring in December 2006 at age 62 with 23 years of
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congressional service covered by Social Security, the reduction would be approximately $12,500.
REPLACEMENT RATES The adequacy of pension plans is often evaluated by comparing the benefits paid at the time of retirement with pre-retirement earnings. The initial annual pension is computed as a percentage of final annual pay to derive the “earnings replacement rate.” This is the proportion of pre-retirement earnings replaced by the pension. In both CSRS and FERS, pensions are based on the average of the highest three consecutive years of earnings, which are usually the final three years before retirement. Table 1 shows the percentage of high-3 average pay replaced by a congressional pension for a Member retiring with an immediate pension under CSRS or FERS at specified ages and years of service. (Note that because FERS is still a relatively new system, no one will have completed 30 years under FERS until 2014.) Table 1. Replacement Rates for Members Retiring with an Immediate Annuity CSRS
FERS
Age 50, 20 years in Congress
42.5%
34.0%
Age 55, 30 years in Congress
7 1.3%
44.0%
Age 60, 10 years in Congress
25.0%
15.3%
Age 62, 5 years in Congress
12.5%
8.5%
Cost-of-Living Adjustments CSRS annuities are adjusted for inflation once each year on the same schedule and by the same percentage as Social Security benefits. These “cost-of-living adjustments,” or COLAs, are based on the rate of increase in the Consumer Price Index for Urban Wage Earners (CPIW). CSRS annuities and Social Security benefits are increased each January by the percentage change in the CPI-W over the 12-month period ending on the preceding September 30. FERS annuities also are adjusted for inflation, but as a cost-control measure, Congress has mandated that FERS annuities will increase by less than the percentage change in the CPI-W whenever the annual rate of increase in that index exceeds 2.0%. If the CPI-W rises by 2% or less, FERS annuities are increased by the same percentage as the increase in the CPI. If the CPI rises by 2.1% to 3%, FERS annuities are increased by 2%. If the CPI rises by more than 3%, FERS annuities are increased by one percentage point less than the rate of increase in the CPI. Initial CSRS annuities may not exceed 80% of a Member’s final pay. Over time, however, if Congressional pay were to remain unchanged, a retired Member’s CSRS pension could exceed the nominal amount of his or her final pay. Nevertheless, because COLAs merely prevent the purchasing power of an annuity from being eroded by inflation, the real
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value of a CSRS pension does not increase or decrease during retirement, provided that the price index on which the COLA is based is an accurate measure of the rate of inflation.
THE THRIFT SAVINGS PLAN The Thrift Savings Plan (TSP) is a tax-deferred investment program through which federal employees can save money to supplement their pension income.13 The TSP is open to participants in both CSRS and FERS, but in consideration of the smaller pensions paid by FERS, Congress has authorized more generous incentives for workers covered by FERS to save for retirement through the TSP. In 2007, FERS participants may invest up to $15,500 in the TSP. The maximum annual contribution is indexed to inflation.14 Individuals covered by FERS who invest in the TSP also receive a matching contribution from their employing agency on the first 5% of pay that they invest in the plan. CSRS participants also may invest up to $15,500 in the TSP, but they receive no employer matching contributions. The government automatically deposits into the TSP an amount equal to 1.0% of basic pay on behalf of all employees enrolled in FERS, regardless of whether the individual voluntarily invests additional sums. Members of Congress and congressional staff become vested in this 1.0% “agency automatic contribution,” plus any investment earnings on it after completing two years of service. All participants in FERS are immediately vested in their own contributions and in government matching contributions to the TSP, as well as any investment earnings on these contributions. Contributions to the TSP are made on a pre-tax basis, and neither the contributions nor the investment earnings are taxable until money is withdrawn from the plan. Employees who leave federal service before age 55 can continue to defer taxes on their accounts either by leaving the money in the TSP or by transferring all or part of these funds to an Individual Retirement Account (IRA) or other eligible retirement arrangement, such as a 40 1(k) plan. Withdrawals from the TSP before age 55 are subject to a 10% tax penalty unless they are in the form of a life annuity or in a series of payments based on the individual’s remaining life expectancy.15 At retirement, participants may withdraw money from their TSP accounts in any of four ways: • •
• •
They can receive their account balance in a single payment. They can receive a series of monthly payments. (Payments may be for a fixed number of months or a fixed dollar amount. Monthly payments also can be based on an IRS life expectancy table.). They can purchase a life annuity. They can elect a partial distribution as a lump sum and take the remainder as either a series of equal payments or as an annuity.
All withdrawals from the TSP are subject to the federal income tax, and withdrawals before age 55 that are not made on a schedule based on remaining life expectancy are subject to a 10% tax penalty. Participants who have separated from federal service must make an election for withdrawing funds from the TSP no later than February 1 of the year following the year in which the later of two events occurs: (1) the individual turns 65, (2) the individual
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reaches the 1 0th anniversary of the first contribution to his or her account. Separated employees must begin withdrawals no later than age 701/2, at which time the TSP will begin to distribute funds to the participant automatically if he or she has not yet made a withdrawal election. Until an employee separates from the federal government, he or she can continue to contribute to the TSP, regardless of age.
FORFEITURE OF ANNUITY Section 8312 of Title 5 provides that a federal employee, including a Member of Congress, may not receive a retirement annuity for any period of federal service if that individual is convicted of certain offenses that were committed during the period of service when the annuity was earned. In general, the crimes that would lead to forfeiture of a federal retirement annuity under this provision of law are limited to acts of treason and/or espionage. On January 12, 2007, the Senate approved an amendment to S. 1, the Legislative Transparency and Accountability Act of 2007, by a vote of 87-0. The amendment would expand the list of offenses under §83 12 that would result in forfeiture of a federal pension by a Member of Congress to include • • •
bribery of public officials and witnesses, conspiracy to commit an offense or to defraud United States, and perjury or subornation of perjury committed in relation to such acts.
On January 23, 2007, the House of Representatives passed by a vote of 431-0 H.R. 476, which would amend Title 5 of the U.S. Code to make Members of Congress who are convicted of certain offenses committed during their period of service ineligible for a federal retirement annuity based on that period of service. The bill would exclude from federal service creditable toward a retirement annuity under either CSRS or FERS any service as a Member of Congress of an individual convicted of a felony involving (1) bribery of public officials and witnesses; (2) acting as an agent of a foreign principal while a federal public official; (3) conspiracy to commit an offense or to defraud the United States; (4) perjury; or (5) subornation of perjury.
ENDNOTES 1
2
Under the “Offset Plan,” payroll deductions go partly to Social Security and partly to the Civil Service Retirement and Disability Fund. In retirement, the individual’s CSRS pension is reduced (“offset”) by the amount of his or her Social Security benefit. Active-duty military service can be counted toward retirement eligibility, but not toward five-year vesting. In order for military service to count toward the amount of one’s retirement annuity, the individual must make a deposit to the Civil Service Retirement and Disability Fund in the amount that would have been withheld if retirement deductions had been made during the person’s years of military service, plus accrued interest on this amount.
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Patrick J. Purcell
The pension is reduced by 1/12 of 1% for each month not in excess of 60 months, and 1/6 of 1% for each month in excess of 60 months that the Member is under age 60 at the date of separation. Reasons for separation “other than resignation or expulsion” include both choosing not to seek re-election and not winning re-election. 4 The pension is reduced by 5% for each year the Member is under age 62 when the pension begins (unless he or she has completed 20 or more years of service). 5 Members, former Members, and Congressional staff can receive an unreduced annuity (and the FERS supplement) with at least 20 years of service, provided they have reached the minimum retirement age of 55-57. Regular federal employees must complete at least 30 years of service and reach the minimum retirement age of 55-57 before they are eligible to receive an unreduced retirement annuity and the FERS supplement. 6 Fewer quarters of covered employment are required for individuals born before 1929. 7 The employer contribution to FERS varies slightly from year to year based on estimates of the actuarial cost of the program made by the U.S. Office of Personnel Management. 8 Social Security taxes are levied on gross wages. They are not deducted for purposes of determining adjusted gross income. TSP contributions are deducted in determining AGI. 9 Base pay for Representatives and Senators was $158,100 in 2004, $162,100 in 2005, and $165,200 in 2006. Pay for House and Senate leadership positions is higher. 10 The Social Security Administration defines a “low-wage” worker as one who earns 45% of the national average wage or less. 11 $5.15 per hour X 40 hours per week X 52 weeks = $10,712. $10,092/$10,712 = .942. In the 1 10th Congress, both the House and Senate have voted to raise the minimum wage over several years to $7.25 per hour. The increase had not become law as of Feb. 9, 2007. 12 P.L. 105-61, enacted on Oct. 10, 1997, authorized a second open season from July through Dec. 1998 during which employees covered by CSRS could switch to FERS. 13 For a more thorough description of the Thrift Savings Plan, See CRS Report RL30387, Federal Employees’ Retirement System: Role of the Thrift Savings Plan, by Patrick Purcell. 14 The annual contribution limits are established in law at I.R.C. §402(g). 15 Individuals who separate from federal service before age 55 can receive monthly payments based on life expectancy without a tax penalty and withdraw the remaining balance at age 591/2 in a lump sum. If the individual elects a life annuity, remaining undistributed amounts cannot later be withdrawn as a lump sum.
In: Congress of the U.S: Commitees, Rules and Procedures ISBN 978-1-60456-416-7 Editor: Sela G. Thomason © 2009 Nova Science Publishers, Inc.
Chapter 11
MEMBERS WHO HAVE SERVED IN THE U.S. CONGRESS 30 YEARS OR MORE* Mildred Amer SUMMARY This chapter identifies those 234 Members of Congress whose service in the House or Senate, or both, has been 30 years or more. The information provided is current through July 7, 2007. To place this information in perspective, it should be noted that some 11,814 individuals have served in Congress since 1789. Excluding Delegates and Resident Commissioners, this includes 9,919 persons who have served only in the House, 1,250 persons who have served only in the Senate, and 645 who have served in both houses. Of the names listed here, 137 have spent all of their congressional careers in the House; 27 have spent all of their careers in the Senate; and 70 have had combined service in the House and Senate to achieve 30 or more years of service. Three women are included in the listing. Seventeen incumbent Senators and 17 incumbent Representatives have served 30 years or longer.
This chapter contains the names of all Members of the United States Congress who have served 30 or more years, as of January 3, 2006. The names are listed in order of length of congressional service. Party affiliation, state(s) represented, service in the House or Senate, or both, and total length of congressional service are provided for each Member. As of July 7, 2007, a total of 234 individuals have served 30 or more years in Congress. To place this figure in perspective, it should be noted that 11,814 individuals have served in
*
This is an edited, excerpted and augmented edition of a CRS Report for Congress publication, Order Code RL30370, dated July 7, 2007.
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Mildred Amer
Congress since 1789.1 It is of further interest to note that only nine of the 234 individuals with 30 or more years of service served during the 18th and 19th centuries. The remaining 225 served entirely during the 20th century, partially in the 19th century and partially in the 20th century, or partially in the 20th century and partially in the 21st century. Seventeen incumbent Senators and 17 incumbent Representatives have served 30 years or longer. Their names are listed in boldface type. Three women are included in the list. All served in the 20th century, and their names are listed in italics. In compiling the list, leap year days were calculated separately and added to a Member's years, months, and days of service. In addition, for Members who served part of any year, the figure of 30 days was used to calculate the number of days in a month when converting days into months. For example, if a Member served 30 years, eight months, and 36 days, 30 of the 36 days were used to constitute a month so that the end result for this hypothetical Member would be 30 years, nine months, and six days. The sources for this compilation include a similar list appearing in "Service Time of Congressmen,"Congressional Record, vol. 113, March 9, 1967, pp. 61916193, which contained numerous inaccuracies, the Biographical Directory of the American Congress, 1774-2005, and various editions of the Congressional Directory (Washington: GPO).
1
This figure excludes Delegates and Resident Commissioners. It includes 9,919 persons who have served only in the House, 1,250 persons who have served only in the Senate, and 645 who have served in both houses of Congress.
Members Who have Served in the U.S. Congress 30 Years or More (as of July 7, 2007) Member
Ranka
Party/State
Carl T. Hayden
1
(D-AZ)
Robert C. Byrd
2
(D-WV)
Jamie L. Whitten John Dingell, Jr. Carl Vinson Emanuel Celler
3 4 5 6
Sam T. Rayburn Sidney Yates
Chamber and Years in Each
(D-MS) (D-MI) (D-GA) (D-NY)
House Senate House Senate House House House House
Feb. 19, 1912-Mar. 3, 1927 Mar. 4, 1927-Jan. 3, 1969 Jan. 3, 1953-Jan. 3, 1959 Jan. 3, 1959Nov. 4, 1941-Jan. 3, 1995 Dec. 13, 1955Nov. 3, 1914-Jan. 3, 1965 Mar. 4, 1923-Jan. 3, 1973
(15 yrs., 17 days) (41 yrs., 10 mos., 11 days) (6 yrs., 1 day) (48 yrs., 6 mos., 16 days) (53 yrs., 2 mos., 13 days) (51 yrs., 7 mos, 7 days) (50 yrs., 2 mos., 13 days) (49 yrs., 10 mos., 13 days)
7 8
(D-TX) (D-lL)
House House
Daniel Inouye
9
(D-HI)
Strom Thurmond
10
(48 yrs., 8 mos., 25 days (14 yrs., 3 days) (34 yrs., 8 days) (3 yrs., 4 mos., 14 days) (44 yrs., 6 mos., 15 days (47 yrs., 5 mos., 19 days)
Wright Patman Joseph G. Cannon
11 12
(D-SC) (RSC) (D-TX) (R-IL)
House Senate Senate
Adolph J. Sabath
13
(D4L)
Mar. 4, 1913-Nov. 16, 1961 Jan. 3, 1949-Jan. 3, 1963 Jan. 3, 1965-Jan 3, 1999 Aug. 21, 1959-Jan. 3, 1963 Jan. 3, 1963Dec. 24, 1954-Apr. 4, 1956 Nov. 7, 1956-Jan. 3, 2003 Mar. 4, 1929-Mar. 7, 1976 Mar. 4, 1873-Mar. 3, 1891 Mar. 4, 1893-Mar. 3, 1913 Mar. 4, 1915-Mar. 3, 1923 Mar. 4, 1907-Nov. 6, 1952
House House
House
(47 yrs., 15 days) (18 yrs., 4 days) (20 yrs., 4 days) (8 yrs., 2 days) (45 yrs., 8 mos., 14 days)
Total Length of Serviceb 56 yrs., 10 mos., 28 days 54 yrs., 6 mos., 17 days 53 yrs., 2 mos., 13 days 51 yrs., 7 mos., 7 days 50 yrs., 2 mos., 13 days 49 yrs., 10 mos., 13 days 48 yrs., 8 mos., 25 days 48 yrs., 11 days 47 yrs., 10 mos., 29 days 47 yrs., 5 mos., 19 days 47 yrs., 15 days 46 yrs., 10 days
45 yrs., 8 mos., 14 days
Table (Continued) Member
Ranka
Party/State
J. Lister Hill
14
(D-AL)
Edward M. Kennedy Charles E. Bennett George H. Mahon Warren G. Magnuson Justin S. Morrill
15
(D-MA)
16 16 18
(D-FL) (D-TX) (D-WA)
19
(R-VT)
William B. Allison
20
(R-IA)
Melvin Price Henry M. Jackson
21 22
(D-IL) (D-WA)
Carter Glass
23
(D-VA)
John W. McCormack John Conyers, Jr. Jack Brooks John J. Sparkman
24
(D-MA)
25 26 26
(D-MI) (D-TX) (D-AL)
W.R. Poage
26
(D-TX)
Chamber and Years in Each House Senate Senate
Aug. 14, 1923-Jan. 11, 1938 Jan. 11, 1938-Jan. 3, 1969 Nov. 7, 1962-
(14 yrs., 5 mos., 3 days) (31 yrs., 1 day) (44 yrs., 8 mos., 11 days)
House House House Senate House Senate House Senate House House Senate House Senate House
Jan. 3, 1949-Jan. 3, 1993 Jan. 3, 1935-Jan. 3, 1979 Jan. 3, 1937-Dec. 13, 1944 Dec. 14, 1944-Jan. 3, 1981 Mar. 4, 1855-Mar. 3, 1867 Mar. 4, 1867-Dec. 28, 1898 Mar. 4, 1863-Mar. 3, 1871 Mar. 4, 1873-Aug. 4, 1908 Jan. 3, 1945-April 22, 1988 Jan. 3, 1941-Jan. 3, 1953 Jan. 3, 1953-Sept. 1, 1983 Nov. 4, 1902-Dec. 16, 1918 Feb. 2, 1920-May 28, 1946 Nov. 6, 1928-Jan. 3, 1971
(44 yrs., 11 days) (44 yrs., 11 days) (7 yrs., 11 mos., 13 days) (36 yrs., 26 days) (12 yrs., 3 days) (31 yrs., 10 mos., 3 days) (8 yrs., 2 days) (35 yrs., 5 mos., 8 days) (43 yrs., 4 mos.) (12 yrs., 3 days) (30 yrs., 8 mos., 6 days) (16 yrs., 1 mo., 17 days) (26 yrs., 4 mos., 4 days) (42 yrs., 2 mos., 9 days)
House House House Senate House
Jan. 3, 1965Jan. 3, 1953-Jan. 3, 1995 Jan. 3, 1937-Nov. 5, 1946 Nov. 6, 1946-Jan. 3, 1979 Jan. 3, 1937-Jan. 3, 1979
(42 yrs., 14 days) (42 yrs., 10 days) (9 yrs., 10 mos., 5 days) (32 yrs., 2 mos., 5 days) (42 yrs., 10 days)
Total Length of Serviceb 45 yrs., 5 mos. 4 days 44 yrs., 8 mos., 11 days 44 yrs., 11 days 44 yrs., 11 days 44 yrs., 9 days 43 yrs., 10 mos., 6 days 43 yrs., 5 mos., 10 days 43 yrs., 4 mos. 42 yrs., 8 mos., 9 days 42 yrs., 5 mos., 21 days 42 yrs., 2 mos., 9 days 42 yrs., 14 days 42 yrs., 10 days 42 yrs., 10 days 42 yrs., 10 days
Robert L. Doughton
29
(D-NC)
House
Mar. 4, 1911-Jan. 3, 1953
(41 yrs., 10 mos., 11 days)
Joseph W. Martin
30
(R-MA)
House
Mar. 4, 1925-Jan. 3, 1967
(41 yrs., 10 mos., 10 days)
Clarence A. Cannon
31
(D-MO)
House
Mar. 4, 1923-May 12, 1964
(41 yrs., 2 mos., 20 days)
John C. Stennis
32
(D-MS)
Senate
Nov. 5, 1947-Jan. 3, 1989
(41 yrs., 2 mos., 10 days)
Kenneth D. McKellar William Natcher Claude Pepper
33
(D-TN)
34 35
(D-KY) (D-FL)
William P. Fyre
36
(R-ME)
Carl T. Curtis
37
(R-NE)
Leslie C. Arends Peter W. Rodino, Jr. Jennings Randolph
38 38 40
(R-lL) (D-NJ) (D-WV)
Eugene Hale
41
(R-ME)
Daniel A. Reed
42
(R-NY)
House Senate House Senate House House Senate House Senate House House House Senate House Senate House
Nov. 9, 1911-Mar. 3, 1917 Mar. 4, 1917-Jan. 3, 1953 Aug. 1, 1953-Mar. 29, 1994 Nov. 4, 1936-Jan. 3, 1951 Jan. 3, 1963-May 27, 1989 Mar. 4, 1871-Mar. 17, 1881 Mar. 18, 1881-Aug. 8 1911 Jan. 3, 1939-Dec. 31, 1954 Jan. 1, 1955-Jan. 3, 1979 Jan. 3, 1935-Jan. 3, 1975 Jan. 3, 1949-Jan. 3, 1989 Mar. 4, 1933-Jan. 3, 1947 Nov. 5, 1958-Jan. 3, 1985 Mar. 4, 1869-Mar. 3, 1879 Mar. 4, 1881-Mar. 3, 1911 Mar. 4, 1919-Feb. 19, 1959
(5 yrs., 3 mos., 25 days) (35 yrs., 10 mos., 9 days) (40 yrs., 8 mos., 8 days) (14 yrs., 2 mos., 3 days) (26 yrs., 5 mos., 1 day) (10 yrs., 17 days) (30 yrs., 4 mos., 28 days) (16 yrs., 3 days) (24 yrs., 9 days) (40 yrs., 10 days) (40 yrs., 10 days) (13 yrs., 10 mos., 3 days) (26 yrs., 2 mos., 6 days) (10 yrs., 2 days) (30 yrs., 6 days) (39 yrs., 11 mos., 26 days)
George W. Norris
43
(R-NE)
John Taber
43
(R-NY)
House Senate House
Mar. 4, 1903-Mar. 3, 1913 Mar. 4, 1913-Jan. 3, 1943 Mar. 4, 1923-Jan. 3, 1963
(10 yrs., 3 days) (29 yrs., 10 mos., 7 days) (39 yrs., 10 mos., 10 days)
41 yrs., 10 mos., 11 days 41 yrs., 10 mos., 10 days 41 yrs., 2 mos., 20 days 41 yrs., 2 mos., 10 days 41 yrs., 2 mos., 4 days 40 yrs., 8 mos., 8 days 40 yrs., 7 mos., 4 days 40 yrs., 5 mos., 15 days 40 yrs., 12 days 40 yrs., 10 days 40 yrs., 10 days 40 yrs., 9 days 40 yrs., 8 days 39 yrs., 11 mos., 26 days 39 yrs., 10 mos., 10 days 39 yrs., 10 mos., 10 days
Table (Continued) Member
Ranka
Party/State
William M. Colmer
43
(D-MS)
House
Mar. 4, 1933-Jan. 3, 1973
(39 yrs., 10 mos., 10 days)
Samuel Smith
46
(D-MD)
House Senate
John L. McClellan
47
(D-AR)
Ted Stevens
48
(R-AK)
House Senate Senate
Mar. 4, 1793-Mar. 3, 1803 Jan. 31, 1816-Dec. 17, 1822 Mar. 4, 1803-Mar. 3, 1815 Dec. 17, 1822-Mar. 3, 1833 Jan. 3, 1935-Jan. 3, 1939 Jan. 3, 1943-Nov. 28, 1977 Dec. 24, 1968-
(10 yrs., 1 day) (6 yrs., 10 mos., 20 days) (12 yrs., 2 days) (10 yrs., 2 mos., 18 days) (4 yrs., 1 day) (34 yrs., 11 mos., 4 days) (38 yrs., 6 mos., 22 days)
David Obey
49
(D-WI)
House
April 1, 1969-
(38 yrs., 3 mos., 15 days)
Morris Sheppard
50
(D-TX)
Ernest F. Hollings Richard B. Russell John Sherman
51 52 53
(D-SC) (D-GA) (R-OH)
House Senate Senate Senate House Senate
Russell B. Long Dante B. Fascell Wilbur D. Mills Robert Michel
54 55 55 57
(D-LA) (D-FL) (D-AR) (R-IL)
Nov. 15, 1902-Feb. 3, 1913 Feb. 3, 1913-Apr. 9, 1941 Nov. 9, 1966-Jan. 3, 2005 Jan. 12, 1933-Jan. 21, 1971 Mar. 4, 1855-Mar. 21, 1861 Mar. 21, 1861-Mar. 8, 1877 Mar. 4, 1881-Mar. 4, 1897 Dec. 31, 1948-Jan. 3, 1987 Jan. 3, 1955-Jan. 3, 1993 Jan. 3, 1939-Jan. 3, 1977 Jan. 3, 1957-Jan. 3, 1995
(10 yrs., 2 mos., 22 days) (28 yrs., 2 mos., 14 days) (38 yrs., 2 mos., 5 days) (38 yrs., 19 days) (6 yrs., 20 days) (15 yrs., 11 mos., 19 days) (16 yrs., 5 days) (38 yrs., 12 days) (38 yrs., 10 days) (38 yrs., 10 days) (38 yrs., 9 days)
Chamber and Years in Each
Senate House House House
Total Length of Serviceb 39 yrs., 10 mos., 10 days 39 yrs., 1 mo., 11 days
38 yrs., 11 mos., 5 days 38 yrs., 6 mos., 22 days) 38 yrs., 3 mos., 15 days) 38 yrs., 5 mos., 6 days 38 yrs., 2 mos., 5 days 38 yrs., 19 days 38 yrs., 14 days
38 yrs., 12 days 38 yrs., 10 days 38 yrs., 10 days 38 yrs., 9 days
Frederick H. Gillett
58
(R-MA)
Robert Crosser
59
(D-OH)
House Senate House
(32 yrs., 7 days) (6 yrs., 1 day) (6 yrs., 1 day) (31 yrs., 10 mos., 9 days) (3 yrs., 9 mos., 18 days) (34 yrs., 8 days) (24 yrs., 9 mos., 14 days) (12 yrs., 11 mos., 16 days)
38 yrs., 8 days
(6 yrs., 2 days) (31 yrs., 8 mos., 12 days) (14 yrs., 3 days) (21 yrs., 10 mos., 22 days) (1 yr., 3 mos., 29 days) (37 yrs., 2 mos., 9 days) (2 yrs., 3 mos., 17 days) (34 yrs., 8 mos., 28 days) (36 yrs., 6 mos., 13 days)
37 yrs., 8 mos., 14 days 37 yrs., 2 mos., 24 days
House
Mar. 4, 1893-Mar. 3, 1925 Mar. 4, 1925-Mar. 3, 1931 Mar. 4, 1913-Mar. 3, 1919 Mar. 4, 1923-Jan. 3, 1955 Jan. 3, 1941-Oct. 19, 1944 Jan. 3, 1945-Jan. 3, 1979 Mar. 4, 1791-Dec. 13, 1815 Dec. 13, 1815-Nov. 14. 1828 Mar. 4, 1887-Mar. 3, 1893 Mar. 4, 1893-Nov. 9, 1924 Mar. 4, 1913-Mar. 3, 1927 Mar. 4, 1927-Jan. 19, 1949 Jan. 3, 1955-Apr. 30, 1956 Nov. 4, 1961-Jan. 3, 1999 Nov. 18, 1890-Mar. 4, 1893 Mar. 4, 1895-Nov. 24, 1929 Jan. 3, 1971-
Robert L. F. Sikes
60
(D-FL)
House
Nathaniel Macon
61
(D-NC)
House Senate
Henry Cabot Lodge
62
(R-MA)
Alben W. Barkley
63
(D-KY)
House Senate House Senate
Henry Gonzalez Francis E. Warren
64 65
(D-TX) (R-WY)
House Senate
Charles B. Rangel
66
(D-NY)
C. W. (BM) Young
66
(R-FL)
House
Jan. 3, 1971-
(36 yrs., 6 mos., 13 days)
James 0. Eastland
68
(D-MS)
Senate
(2 mos., 29 days) (36 yrs., 2 days)
Edward Boland Henry L. Dawes
69 69
(D-MA) (R-MA)
William Broomfield Dan Rostenkowski Neal Smith
69 69 69
(R-MI) (D-IL) (R-IA)
House House Senate House House House
June 30, 1941-Sept. 28, 1941 Jan. 3, 1943-Dec. 27, 1978 Jan. 3, 1953-Jan. 3, 1989 Mar. 4, 1857-Mar. 3, 1875 Mar. 4, 1875-Mar. 3, 1893 Jan. 3, 1957-Jan. 3, 1993 Jan. 3, 1959-Jan. 3, 1995 Jan. 3, 1959-Jan. 3, 1995
(36 yrs., 9 days) (18 yrs., 4 days) (18 yrs., 5 days) (36 yrs., 9 days) (36 yrs., 9 days) (36 yrs., 9 days)
37 yrs., 10 mos., 10 days 37 yrs., 9 mos., 26 days 37 yrs., 9 mos.
37 yrs., 2 mos., 9 days 37 yrs., 15 days 36 yrs., 6 mos., 13 days) 36 yrs., 6 mos., 13 days) 36 yrs., 3 mos., 1 day
36 yrs., 9 days 36 yrs., 9 days 36 yrs., 9 days 36 yrs., 9 days 36 yrs., 9 days
Table (Continued) Member
Ranka
Party/State
F. Edward Herbert Claiborne Pell Joseph McDade Paul S. Sarbanes
69 69 69 69
(D-LA) (D-RI) (R-PA) (D-MD)
Shelby M. Cullom
78
(R-IL)
Henry A. Cooper
79
(R-WI)
Thomas T. Connally
80
(D-TX)
Howard W. Smith
80
Milton Young
Chamber and Years in Each House Senate House House Senate House Senate House
(D-VA)
House Senate House
Jan. 3, 1941-Jan. 3, 1977 Jan. 3, 1961-Jan. 3, 1997 Jan. 3, 1963-Jan. 3, 1999 Jan. 3, 1971-Jan. 3, 1977 Jan. 3, 1977-Jan. 3, 2007 Mar. 4, 1865-Mar. 3, 1871 Mar. 4, 1883-Mar. 3, 1913 Mar. 4, 1893-Mar. 3, 1919 Mar. 4, 1921-Mar. 1, 1931 Mar. 4, 1917-Mar. 3, 1929 Mar. 4, 1929-Jan. 3, 1953 Mar. 4, 1931-Jan. 3, 1967
(36 yrs., 9 days) (36 yrs., 9 days) (36 yrs., 9 days) (6 yrs., 2 days) (30 yrs., 7 days) (6 yrs., 1 day) (30 yrs, 7 days) (26 yrs., 5 days) (9 yrs., 11 mos., 28 days) (12 yrs., 3 days) (23 yrs., 10 mos., 6 days) (35 yrs., 10 mos., 9 days)
82
(R-ND)
Senate
Mar. 12, 1945-Jan. 3 1981
(35 yrs., 9 mos., 28 days)
Ellison D. Smith
83
(D-SC)
Senate
Mar. 4, 1909-Nov. 17, 1944
(35 yrs., 8 mos., 23 days)
Carl D. Perkins George F. Hoar
84 85
(D-KY) (R-MA)
Allen J. Ellender Claude A. Swanson
85 87
(D-LA) (D-VA)
Robert J. Dole
88
(R-KS)
House House Senate Senate House Senate House Senate
Jan. 3, 1949-Aug. 3, 1984 Mar. 4, 1869-Mar. 3, 1877 Mar. 4, 1877-Sept. 30, 1904 Jan. 3, 1937-July 27, 1972 Mar. 4, 1893-Jan. 30, 1906 Aug. 1, 1910-Mar. 3, 1933 Jan. 3, 1961-Jan. 3, 1969 Jan. 3, 1969-June 11, 1996
(35 yrs., 7 mos., 9 days) (8 yrs., 2 days) (27 yrs., 7 mos., 2 days) (35 yrs., 7 mos., 4 days) (12 yrs., 10 mos., 28 days) (22 yrs., 7 mos., 8 days) (8 yrs., 2 days) (27 yrs., 5 mos., 9 days)
Total Length of Serviceb 36 yrs., 9 days 36 yrs., 9 days 36 yrs., 9 days 36 yrs., 9 days 36 yrs., 8 days 36 yrs., 3 days 35 yrs., 10 mos., 9 days 35 yrs., 10 mos., 9 days 35 yrs., 9 mos., 28 days 35 yrs., 8 mos., 23 days 35 yrs., 7 mos., 9 days 35 yrs., 7 mos., 4 days 35 yrs., 7 mos., 4 days 35 yrs., 6 mos., 6 days 35 yrs., 5 mos., 11 days
Phillip Crane
89
(R-IL)
House
Nov. 25, 1969-Jan. 3, 2005
(35 yrs., 3 mos., 15 days)
Edith N. Rogers
90
(R-MA)
House
(35 yrs., 2 mos., 20 days)
Clement J. Zablocki
91
(D-WI)
House
June 30, 1925-Sept. 10, 1960 Jan. 3, 1949-Dec. 3, 1983
(34 yrs., 11 mos., 8 days)
George E. Brown, Jr. Everett M. Dirksen
92
(D-CA)
House
93
(R-IL)
Thad Cochran
94
(R-MS)
Trent Lott
94
(R-MS)
Joseph R. Biden
94
(D-DE)
House Senate House Senate House Senate Senate
Jan. 3, 1963-Jan. 3, 1971 Jan. 3, 1973-July 15, 1999 Mar. 4, 1933-Jan. 3, 1949 Jan. 3, 1951-Sept. 7, 1969 Jan. 3, 1973-Dec. 26, 1978 Dec. 27, 1978Jan. 3, 1973-Jan. 3, 1989 Jan. 3, 1989Jan. 3, 1973-
(8 yrs., 2 days) (26 yrs., 6 mos., 18 days) (15 yrs., 10 mos., 4 days) (18 yrs., 8 mos., 10 days) (5 yrs., 11 mos., 24 days) (28 yrs., 6 mos., 18 days) (16 yrs., 4 days) (18 yrs., 6 mos., 8 days) (34 yrs., 6 mos., 12 days)
Pete V. Domenici
94
(R-NM)
Senate
Jan. 3, 1973-
(34 yrs., 6 mos., 12 days)
Ralph Regula
94
(R-OH)
House
Jan. 3, 1973-
(34 yrs., 6 mos., 12 days)
Fortney (Pete) Stark James C. Wright William R. King
94
(D-CA)
House
Jan. 3, 1973-
(34 yrs., 6 mos., 12 days)
100 101
(D-TX) (NP-NC) (D-AL)
House House Senate
Don Young
102
(R-AK)
House
Jan. 3, 1955-June 30, 1989 Mar. 4, 1811-Nov. 4, 1816 Dec. 14, 1819-Apr. 15, 1844 July 1, 1848-Dec. 20, 1852 Mar. 6, 1973-
(34 yrs., 6 mos., 6 days) (5 yrs., 8 mos., 3 days) (24 yrs., 4 mos., 9 days) (4 yrs., 5 mos., 21 days) (34 yrs., 4 mos., 9 days)
35 yrs., 3 mos., 15 days 35 yrs., 2 mos., 20 days 34 yrs., 11 mos., 8 days 34 yrs., 6 mos., 20 days 34 yrs., 6 mos., 14 days 34 yrs., 6 mos., 12 days 34 yrs., 6 mos., 12 days 34 yrs., 6 mos., 12 days 34 yrs., 6 mos., 12 days 34 yrs., 6 mos., 12 days 34 yrs., 6 mos., 12 days 34 yrs., 6 mos., 6 days 34 yrs., 6 mos., 3 days
34 yrs., 4 mos., 9 days
Table (Continued) Member
Ranka
Party/State
Matthew M. Neely
103
(D-WV)
House Senate
Joseph T. Robinson
104
(D-AR)
Knute Nelson
105
(R-MN)
Walter F. George Brazilla C. Reece
106 107
(D-GA) (R-TN)
House Senate House Senate Senate House
Karl E. Mundt
108
(R-SD)
Michael J. Mansfield Hugh D. Scott, Jr.
108
(D-MT)
108
(R-PA)
John L. McMillan Ray J. Madden Sam M. Gibbons James Quillen William V. Roth
111 111 111 111 111
(D-SC) (D-IN) (D-FL) (R-TN) (R-DE)
Chamber and Years in Each
House Senate House Senate House Senate House House House House House Senate
Oct. 14, 1913-Mar. 3, 1921 Jan. 3, 1945-Jan. 3, 1947 Mar. 4, 1923-Mar. 3, 1929 Mar. 4, 1931-Jan. 12, 1941 Jan. 3, 1949-Jan. 18, 1958) Mar. 4, 1903-Jan. 14, 1913 Mar. 4, 1913-July 14, 1937 Mar. 4, 1883-Mar. 3, 1889 Mar. 4, 1895-Apr. 28, 1923 Nov. 22, 1922-Jan. 3, 1957 Mar. 4, 1921-Mar. 3, 1931 Mar. 4, 1933-Jan. 3, 1947 Jan. 3, 1951-Mar. 19, 1961 Jan. 3, 1939-Dec. 30, 1948 Dec. 31, 1948-Jan. 3, 1973 Jan. 3, 1943-Jan. 3, 1953 Jan. 3, 1953-Jan. 3, 1977 Jan. 3, 1941-Jan. 3, 1945 Jan. 3, 1947-Jan. 3, 1959 Jan. 3, 1959-Jan. 3, 1977 Jan. 3, 1939-Jan. 3, 1973 Jan. 3, 1943-Jan. 3, 1977 Jan. 3, 1963-Jan. 3, 1997 Jan. 3, 1963-Jan. 3, 1997 Jan. 3, 1967-Jan. 3, 1971 Jan. 3, 1971-Jan. 3, 2001
(7 yrs., 4 mos., 20 days) (2 yrs.) (6 yrs., 2 days) (9 yrs., 10 mos., 12 days) (9 yrs., 18 days) (9 yrs., 10 mos., 14 days) (24 yrs., 4 mos., 17 days) (6 yrs., 2 days) (28 yrs., 2 mos., 1 day) (34 yrs., 1 mo., 21 days) (10 yrs., 2 days) (13 yrs., 10 mos., 4 days) (10 yrs., 2 mos., 20 days) (10 yrs., 1 day) (24 yrs., 9 days) (10 yrs., 4 days) (24 yrs., 6 days) (4 yrs., 1 day); (12 yrs., 4 days) (18 yrs., 5 days) (34 yrs., 9 days) (34 yrs., 9 days) (34 yrs., 9 days) (34 yrs., 9 days) (4 yrs., 1 day) (30 yrs., 8 days)
Total Length of Serviceb 34 yrs., 3 mos., 22 days
34 yrs., 3 mos., 1 day 34 yrs., 2 mos., 3 days 34 yrs., 1 mo., 21 days 34 yrs., 26 days
34 yrs., 10 days 34 yrs., 10 days 34 yrs., 10 days
34 yrs., 9 days 34 yrs., 9 days 34 yrs., 9 days 34 yrs., 9 days 34 yrs., 9 days
Gilbert N. Haugen George D. Aiken Richard Bolling Thomas P. O'Neill, Jr. Lee Hamilton Charles Curtis
116 116 116 116
(R-IA) (R-VT) (D-MO) (D-MA)
House Senate House House
Mar. 4, 1899-Mar. 3, 1933 Jan. 10, 1941-Jan. 3, 1975 Jan. 3, 1949-Jan. 3, 1983 Jan. 3, 1953-Jan. 3, 1987
(34 yrs., 8 days) (34 yrs., 8 days) (34 yrs., 8 days) (34 yrs., 8 days)
34 yrs., 8 days 34 yrs., 8 days 34 yrs., 8 days 34 yrs., 8 days
116 121
(D-IN) (R-KS)
House House Senate
122
(R-IN)
House
(34 yrs., 8 days) (13 yrs., 10 mos., 27 days) (6 yrs., 1 mo., 5 days); (14 yrs., 4 days) (33 yrs., 11 mos., 15 days)
34 yrs., 8 days 34 yrs., 6 days
Charles A. Halleck
Jan. 3, 1965-Jan. 3, 1999 Mar. 4, 1893-Jan. 28, 1907 Jan. 29, 1909-Mar. 3, 1913 Mar. 4, 1915-Mar. 3, 1929 Jan. 29, 1935-Jan. 3, 1969
A. Willis Robertson
123
(D-VA)
Thomas A. Jenkins
124
(R-OH)
House Senate House
Mar. 4, 1933-Nov. 5, 1946 Nov. 6, 1946-Jan. 3, 1967 Mar. 4, 1925-Jan. 3, 1959
(13 yrs., 8 mos., 5 days) (20 yrs., 2 mos., 4 days) (33 yrs., 10 mos., 8 days)
Hatton W. Sunmers
124
(D-TX)
House
Mar. 4, 1913-Jan. 3, 1947
(33 yrs., 10 mos., 8 days)
Roy 0. Woodruff
126
(R-MI)
House
Wesley L. Jones
127
(R-WA)
Quentin Burdick
128
(D-ND)
John H. Ketcham
129
(R-NY)
House Senate House Senate House
Michael J. Kirwan
130
(D-OH)
House
Mar. 4, 1913-Mar. 3, 1915 Mar. 4, 1921-Jan. 3, 1953 Mar. 4, 1899-Mar. 3, 1909 Mar. 4, 1909-Nov. 19, 1932 Jan. 3, 1959-Aug. 8, 1960 Aug. 8, 1960-Sept. 8, 1992 Mar. 4, 1865-Mar. 3, 1873 Mar. 4, 1877-Mar. 3, 1893 Mar. 4, 1897-Nov. 4, 1906 Jan. 3, 1937-July 7, 1970
(2 yrs.); (31 yrs., 10 mos., 3 days) (10 yrs., 2 days) (23 yrs., 8 mos., 22 days) (1 yr., 7 mos., 6 days) (32 yrs., 1 mo., 8 days) (8 yrs., 2 days) (16 yrs., 4 days) (9 yrs., 8 mos., 2 days) (33 yrs., 7 mos., 3 days)
33 yrs., 11 mos., 15 days 33 yrs., 10 mos., 9 days 33 yrs., 10 mos., 8 days 33 yrs., 10 mos., 8 days 33 yrs., 10 mos., 3 days 33 yrs., 8 mos., 24 days 33 yrs., 8 mo., 14 days 33 yrs., 8 mos., 8 days
33 yrs., 7 mos., 3 days
Table (Continued) Member
Ranka
Party/State
John Murtha
131
(D-PA)
House
Feb. 5, 1974-
(33 yrs., 5 mos., 10 days)
Edward W. Pou Henry H. Bingham William E. Borah
132 133 134
(D-NC) (R-PA) (R-1D)
House House Senate
Mar. 4, 1901-Apr. 1, 1934 Mar. 4, 1879-Mar. 22, 1912 Mar. 4, 1907-Jan. 19, 1940
(33 yrs., 1 mo., 7 days) (33 yrs., 28 days) (32 yrs., 10 mos., 24 days)
John H. Bankhead
135
(D-AL)
Harry F. Byrd, Sr.
136
(D-VA)
House Senate Senate
Mar. 4, 1887-Mar. 3, 1907 June 18, 1907-Mar. 1, 1920 Mar. 4, 1933-Nov. 10, 1965
(20 yrs., 4 days) (12 yrs., 8 mos., 16 days) (32 yrs., 8 mos., 15 days)
Clifford P. Case
137
(R-NJ)
Margaret Chase Smith Edward T. Taylor Harold D. Cooley Max S. Baucus
138
(R-ME)
139 140 141
(D-CO) (D-NC) (D-MT)
141
(D-CT)
141
(R-IA)
141
(R-IA)
House Senate House Senate House House House Senate House Senate House Senate House Senate
Jan. 3, 1945-Aug. 16, 1953 Jan. 3, 1955-Jan. 3, 1979 June 3, 1940-Jan. 3, 1949 Jan. 3, 1949-Jan. 3, 1973 Mar. 4, 1909-Sept. 3, 1941 July 7, 1934-Jan. 3, 1967 Jan. 3, 1975-Dec. 14, 1978 Dec. 15, 1978Jan. 3, 1975-Jan. 3, 1981 Jan. 3, 1981Jan. 3, 1975-Jan. 3, 1981 Jan. 3, 1981Jan. 3, 1975-Jan. 3, 1985 Jan. 3, 1985-
(8 yrs., 7 mos., 19 days) (24 yrs., 6 days) (8 yrs., 7 mos., 2 days) (24 yrs., 6 days) (32 yrs., 6 mos., 8 days) (32 yrs., 6 mos., 6 days) (3 yrs. 11 mos., 12 days) (28 yrs., 6 mos., 30 days) (6 yrs., 2 days) (26 yrs., 6 mos., 10 days) (6 yrs., 2 days) (26 yrs., 6 mos., 10 days) (10 yrs., 3 days) (22 yrs., 6 mos., 9 days)
Christopher J. Dodd Charles E. Grassley Thomas R. Harkin
Chamber and Years in Each
Total Length of Serviceb 33 yrs., 5 mos., 10 days 33 yrs., 1 mo., 7 days 33 yrs., 28 days 32 yrs., 10 mos., 24 days 32 yrs., 8 mos., 20 days 32 yrs., 8 mos., 15 days 32 yrs., 7 mos., 25 days 32 yrs., 7 mos., 8 days 32 yrs., 6 mos., 8 days 32 yrs., 6 mos., 6 days 32 yrs., 6 mos., 12 days 32 yrs., 6 mos., 12 days 32 yrs., 6 mos., 12 days 32 yrs., 6 mos., 12 days
Patrick J. Leahy
141
(D-VT)
Senate
Jan. 3, 1975-
(32 yrs., 6 mos., 12 days)
George Miller
141
(D-CA)
House
Jan. 3, 1975-
(32 yrs., 6 mos., 12 days)
James L. Oberstar
141
(D-MN)
House
Jan. 3, 1975-
(32 yrs., 6 mos., 12 days)
Henry A. Waxman
141
(D-CA)
House
Jan. 3, 1975-
(32 yrs., 6 mos., 12 days)
Olin E. Teague
149
(D-TX)
House
Aug. 24, 1946-Jan. 3, 1979
(32 yrs., 4 mos., 18 days)
John Breaux
150
(D-LA)
Silvio Conte William Clay Robert Kastenmeier J. William Fulbright
151 152 152 152
(R-MA) (D-MO) (D-WI) (D-AR)
Furnifold M Simmons Thomas E. Morgan O.C. Fisher Chet E. Holifield Omar Burleson H.O. Staggers, Sr. Tom Steed Don Edwards E. (Kika) de la Garza
152
(D-NC)
152 152 152 152 152 152 152 152
(D-PA) (D-TX) (D-CA) (D-TX) (D-WV) (D-OK) (D-CA) (D-TX)
House Senate House House House House Senate House Senate House House House House House House House House
Oct. 12, 1972-Jan. 3, 1987 Jan. 3, 1987-Jan. 3, 2005 Jan. 3, 1959-Feb. 8, 1991 Jan. 3, 1969-Jan. 3, 2001 Jan. 3, 1959-Jan. 3, 1991 Jan. 3, 1943-Jan. 3, 1945 Jan. 3, 1945-Jan. 3, 1975 Mar. 4, 1887-Mar. 3, 1889 Mar. 4, 1901-Mar. 3, 1931 Jan. 3, 1945-Jan. 3, 1977 Jan. 3, 1943-Jan. 3, 1975 Jan. 3, 1943-Jan. 3, 1975 Jan. 3, 1947-Jan. 3, 1979 Jan. 3, 1949-Jan. 3, 1981 Jan. 3, 1949-Jan. 3, 1981 Jan. 3, 1963-Jan. 3, 1995 Jan. 3, 1965-Jan. 3, 1997
(14 yrs., 2 mos., 24 days) (18 yrs., 5 days) (32 yrs., 1 mo., 13 days) (32 yrs., 8 days) (32 yrs., 8 days) (2 yrs., 1 day) (30 yrs., 7 days) (2 yrs., 1 day) (30 yrs., 7 days) (32 yrs., 8 days) (32 yrs., 8 days) (32 yrs., 8 days) (32 yrs., 8 days) (32 yrs., 8 days) (32 yrs., 8 days) (32 yrs., 8 days) (32 yrs., 8 days)
32 yrs., 6 mos., 12 days 32 yrs., 6 mos., 12 days 32 yrs., 6 mos., 12 days 32 yrs., 6 mos., 12 days 32 yrs., 4 mos., 18 days 32yrs., 2 mos., 29 days 32 yrs., 1 mo., 13 days 32 yrs., 8 days 32 yrs., 8 days 32 yrs., 8 days 32 yrs., 8 days 32 yrs., 8 days 32 yrs., 8 days 32 yrs., 8 days 32 yrs., 8 days 32 yrs., 8 days 32 yrs., 8 days 32 yrs., 8 days 32 yrs., 8 days
Table (Continued) Member
Ranka
Party/State
James M. Jeffords
152
(R-VT) (RVT) (I-VT)
Henry J. Hyde James J. Delaney
152 166
(R-IL) (D-NY)
Nelson W. Aldrich
167
(R-RI)
Julius C. Burrows
168
(R-M1)
Jacob Javits
169
(R-NY)
Albert A. Gore, Sr.
170
(D-TN)
Harold Knutson
171
(R-MN)
Clarence F. Lea
171
Brent Spence
Chamber and Years in Each House Senate Senate House House
House
Jan. 3, 1975-Jan. 3, 1989 Jan. 3, 1989-June 6, 2001 June 6, 2001-Jan. 3, 2007 Jan. 3, 1975-Jan. 3, 2007 Jan. 3, 1945-Jan. 3, 1947 Jan. 3, 1949-Jan. 3, 1979 Mar. 4, 1879-Oct. 4, 1881 Oct. 5, 1881-Mar. 3, 1911 Mar. 4, 1873-Mar. 3, 1875 Mar. 4, 1879-Mar. 3, 1883 Mar. 4, 1885-Jan. 23, 1895 Jan. 24, 1895-May 3, 1911 Jan. 3, 1947-Dec. 31, 1954 Jan. 9, 1957-Jan. 3, 1981 Jan. 3, 1939-Dec. 4, 1944 Jan. 3, 1945-Jan. 3, 1953 Jan. 3, 1953-Jan. 3, 1971 Mar. 4, 1917-Jan. 3, 1949
(14 yrs., 4 days) (12 yrs., 5 mos., 6 days) (5 yrs., 6 mos., 28 days) (32 yrs., 8 days) (2 yrs.) (30 yrs., 7 days) (2 yrs., 7 mos., 2 days) (29 yrs., 5 mos., 3 days) (2 yrs.) (4 yrs., 1 day) (9 yrs., 10 mos., 22 days) (16 yrs., 1 mo., 11 days) (8 yrs.) (24 yrs., 1 day) (5 yrs., 11 mos., 3 days) (8 yrs., 2 days) (18 yrs., 4 days) (31 yrs., 10 mos., 8 days)
(D-CA)
House
Mar. 4, 1917-Jan. 3, 1949
(31 yrs., 10 mos., 8 days)
171
(D-KY)
House
Mar. 4, 1931-Jan. 3, 1963
(31 yrs., 10 mos., 8 days)
John E. Rankin
171
(D-MS)
House
Mar. 4, 1921-Jan. 3, 1953
(31 yrs., 10 mos., 8 days)
Allen T. Treadway
171
(R-MA)
House
Mar. 4, 1913-Jan. 3, 1945
(31 yrs., 10 mos., 8 days)
House Senate House Senate
House Senate House Senate
Total Length of Serviceb 32 yrs., 8 days
32 yrs., 8 days 32 yrs., 7 days 32 yrs., 5 days 32 yrs., 4 days
32 yrs., 1 day 31 yrs., 11 mos., 9 days 31 yrs., 10 mos., 8 days 31 yrs., 10 mos., 8 days 31 yrs., 10 mos., 8 days 31 yrs., 10 mos., 8 days 31 yrs., 10 mos., 8
Charles Wolverton
171
(R-NJ)
House
Mar. 4, 1927-Jan. 3, 1959
(31 yrs., 10 mos., 8 days)
Wallace H. White
171
(R-ME)
Schuyler 0. Bland
178
(D-VA)
House Senate House
Mar. 4, 1917-Mar. 3, 1931 Mar. 4, 1931-Jan. 3, 1949 July 2, 1918-Feb. 16, 1950
(14 yrs., 3 days) (17 yrs., 10 mos., 5 days) (31 yrs., 7 mos., 23 days)
Thomas H. Benton
179
(D-MO)
Joseph E. Ransdell
180
(D-LA)
Jacob H. Gallinger
181
(R-NH)
William Proxmire
182
(D-W1)
Senate House House Senate House Senate Senate
Aug. 10, 1821-Mar. 3, 1851 Mar. 4, 1853-Mar. 3, 1855 Aug. 29, 1899-Mar. 3, 1913 Mar. 4, 1913-Mar. 3, 1931 Mar. 4, 1885-Mar. 3, 1889 Mar. 4, 1891-Aug. 17, 1918 Aug. 28, 1957-Jan. 3, 1989
(29 yrs., 6 mos., 29 days) (2 yrs.) (13 yrs., 6 mos., 7 days) (18 yrs., 4 days) (4 yrs., 1 day) (27 yrs., 5 mos., 20 days) (31 yrs., 4 mos., 14 days)
Oscar Underwood
183
(D-AL)
House Senate
Thomas S. Butler
184
(R-PA)
House
Mar. 4, 1895-June 9, 1896 Mar. 4, 1897-Mar. 3, 1915 Mar. 4, 1915-Mar. 3, 1927 Mar. 4, 1897-May 26, 1928
(1 yr., 3 mos., 7 days) (18 yrs., 3 days) (2 yrs., 3 days) (31 yrs., 2 mos., 29 days)
Daniel J. Flood
185
(D-PA)
House
J. J. Pickle August H. Andresen
186 187
(D-TX) (R-MN)
House House
Thomas Newton, Jr.
188
(D-VA)
House
Jan. 3, 1945-Jan. 3, 1947 Jan. 3, 1949-Jan. 3, 1953 Jan. 3, 1955-Jan. 31, 1980 Dec. 21, 1963-Jan. 3, 1995 Mar. 4, 1925-Mar. 3, 1933 Jan. 3, 1935-Jan. 14, 1958 Mar. 4, 1801-Mar. 9, 1830 Mar. 4, 1831-Mar. 3, 1833
(2 yrs.) (4 yrs., 1 day) (25 yrs., 1 mo., 4 days) (31 yrs., 21 days) (8 yrs., 2 days) (23 yrs., 18 days) (29 yrs., 12 days) (2 yrs., 1 day)
days 31 yrs., 10 mos., 8 days 31 yrs., 10 mos., 8 days 31 yrs., 7 mos., 23 days 31 yrs., 6 mos., 29 days 31 yrs., 6 mos., 11 days 31 yrs., 5 mos., 21 days 31 yrs., 4 mos., 14 days 31 yrs., 3 mos., 13 days 31 yrs., 2 mos., 29 days 31 yrs., 1 mo., 5 days
31 yrs., 21 days 31 yrs., 20 days 31 yrs., 13 days
Table (Continued) Member
Ranka
Party/State
William D. Ford Edward J. Markey Theodore E. Burton
189 190 191
(D-MI) (D-MA) (R-OH)
House House House Senate
Floyd D. Spence
192
(R-SC)
House
John J. Rooney Orrin G. Hatch Richard G. Lugar Barbara A. Mikulski Daniel K. Akaka
193 194 194 196
(D-NY) (R-UT) (R-IN) (D-MD)
196
(D-HI)
Norman D. Dicks Dale E. Kildee Nick J. Rahall Ike Skelton Joseph J. Mansfield Byron P. Harrison
196 196 196 196 202 203
(D-WA) (D-MI) (D-WV) (D-MO) (D-TX) (D-MS)
John T. Morgan Francis E. Walter
204 205
(D-AL) (D-PA)
House Senate Senate House Senate House Senate House House House House House House Senate Senate House
Chamber and Years in Each Jan. 3, 1965-Jan. 3, 1995 Nov. 2, 1976Mar. 4, 1889-Mar. 3, 1891 Mar. 4, 1895-Mar. 3, 1909 Mar. 4, 1921-Dec. 15, 1928 Mar. 4, 1909-Mar. 3, 1915 Dec. 15, 1928-Oct. 28, 1929 Jan. 3, 1971-August 16, 2001 June 6, 1944-Jan. 3, 1975 Dec. 30, 1976Dec. 30, 1976Jan. 3, 1977-Jan. 3, 1987 Jan. 3, 1987Jan. 3, 1977-May 15, 1990 May 16, 1990Jan. 3, 1977Jan. 3, 1977Jan. 3, 1977Jan. 3, 1977Mar. 4, 1917-July 12, 1947 Mar. 4, 1911-Mar. 3, 1919 Mar. 4, 1919-June 22, 1941 Mar. 14, 1877-June 11, 1907 Mar. 4, 1933-May 31, 1963
(31 yrs., 7 days) (30 yrs., 8 mos., 12 days) (2 yrs.) (14 yrs., 3 days) (7 yrs., 9 mos., 13 days) (6 yrs., 1 day) (10 mos., 13 days) (30 yrs., 7 mos., 21 days) (30 yrs., 7 mos., 4 days) (30 yrs., 6 mos., 14 days) (30 yrs., 6 mos., 14 days) (10 yrs., 2 days) (20 yrs., 6 mos., 9 days) (13 yrs., 4 mos., 15 days) (17 yrs., 1 mo., 25 days) (30 yrs., 6 mos., 11 days) (30 yrs., 6 mos., 11 days) (30 yrs., 6 mos., 11 days) (30 yrs., 6 mos., 11 days) (30 yrs., 4 mos., 16 days) (8 yrs., 2 days) (22 yrs., 3 mos., 25 days) (30 yrs., 3 mos., 5 days) (30 yrs., 3 mos., 5 days)
Total Length of Serviceb 31 yrs., 7 days 30 yrs., 8 mos., 12 days 30 yrs., 8 mos.
30 yrs., 7 mos., 21 days 30 yrs., 7 mos., 4 days 30 yrs., 6 mos., 14 days 30 yrs., 6 mos., 14 days 30 yrs., 6 mos., 11 days 30 yrs., 6 mos., 11 days 30 yrs., 6 mos., 11 days 30 yrs., 6 mos., 11 days 30 yrs., 6 mos., 11 days 30 yrs., 6 mos., 11 days 30 yrs., 4 mos., 16 days 30 yrs., 3 mos., 27 days 30 yrs., 3 mos., 5 days 30 yrs., 3 mos., 5 days
William S. Holman
206
(D-IN)
House
Morris Udall Samuel Stratton Delbert Latta Carl Albert E.C. Gathings Joe L. Evins Otto E. Passman Thomas G. Abernathy Alvin E. O'Konski Charles A. Buckley John N. Garner Reed Smoot Earl C. Michener
207 208 208 208 208 208 208 208
(D-AZ) (D-NY) (R-OH) (D-OK) (D-AR) (D-TN) (D-LA) (D-MS)
House House House House House House House House
208 208 208 208 208
(R-WI) (D-NY) (D-TX) (R-UT) (R-M1)
House House House Senate House
208 208 208 208
(R-NY) (D-CA) (D-AL) (D-MS)
House House House House
208 208
(R-IN) (D-IN)
House House
Frank Horton Edward Roybal Tom Bevill G.V. (Sonny) Montgomery John T. Myers Andrew Jacobs, Jr.
Mar. 4, 1859-Mar. 3, 1865 Mar. 4, 1867-Mar. 3, 1877 Mar. 14, 1881-Mar. 3, 1895 Mar. 4, 1897-Apr. 22, 1897 May 2, 1961-May 4, 1991 Jan. 3, 1959-Jan. 3, 1989 Jan. 3, 1959-Jan. 3, 1989 Jan. 3, 1947-Jan. 3, 1977 Jan. 3, 1939-Jan. 3, 1969 Jan. 3, 1947-Jan. 3, 1977 Jan. 3, 1947-Jan. 3, 1977 Jan. 3, 1943-Jan. 3, 1973
(6 yrs., 2 days) (10 yrs., 3 days) (14 yrs., 3 days) (1 mo., 19 days) (30 yrs., 10 days) (30 yrs., 8 days) (30 yrs., 8 days) (30 yrs., 8 days) (30 yrs., 8 days) (30 yrs., 8 days) (30 yrs., 8 days) (30 yrs., 8 days)
Jan. 3, 1943-Jan. 3, 1973 Jan. 3, 1935-Jan. 3, 1965 Mar. 4, 1903-Mar. 3, 1933 Mar. 4, 1903-Mar. 3, 1933 Mar. 4, 1919-Mar. 3, 1933 Jan 3. 1935-Jan. 3, 1951 Jan. 3, 1963-Jan. 3, 1993 Jan. 3, 1963-Jan. 3, 1993 Jan. 3, 1967-Jan. 3, 1997 Jan. 3, 1967-Jan. 3, 1997
(30 yrs., 8 days) (30 yrs., 8 days) (30 yrs., 8 days) (30 yrs., 8 days) (14 yrs., 4 days) (16 yrs., 4 days) (30 yrs., 8 days) (30 yrs., 8 days) (30 yrs., 8 days) (30 yrs., 8 days)
30 yrs., 8 days 30 yrs., 8 days 30 yrs., 8 days 30 yrs., 8 days 30 yrs., 8 days
Jan. 3, 1967-Jan. 3, 1997 Jan. 4, 1965-Jan. 3, 1973 Jan. 3, 1975-Jan. 3, 1997
(30 yrs., 8 days) (8 yrs., 2 days) (22 yrs., 6 days)
30 yrs., 8 days 30 yrs., 8 days
30 yrs., 1 mo., 27 days
30 yrs., 10 days 30 yrs., 8 days 30 yrs., 8 days 30 yrs., 8 days 30 yrs., 8 days 30 yrs., 8 days 30 yrs., 8 days 30 yrs., 8 days
30 yrs., 8 days 30 yrs., 8 days 30 yrs., 8 days 30 yrs., 8 days
Table (Continued) Member
Ranka
Party/State
William (Bill) Archer Francis M. Cockrell Eugene J. Keogh John Jacob Rhodes L.H. Fountain Thomas S. Foley Louis Stokes James A. Leach John P. Jones
208
(R-TX)
House
Jan. 3, 1971-Jan. 3, 2001
(30 yrs., 8 days)
Total Length of Serviceb 30 yrs., 8 days
227 227 227 227 227 227 227 234
(D-MD) (D-NY) (R-AZ) (D-NC) (D-WA) (D-OH) (R-IA) (R-NE)
Senate House House House House House House Senate
Mar. 4, 1875-Mar. 3, 1905 Jan. 3, 1937-Jan. 3, 1967 Jan. 3, 1953-Jan. 3, 1983 Jan. 3, 1953-Jan. 3, 1983 Jan. 3, 1965-Jan. 3, 1995 Jan. 3, 1969-Jan. 3, 1999 Jan. 3, 1997-Jan. 3, 2007 Mar. 4, 1873-Mar. 3, 1903
(30 yrs., 7 days) (30 yrs., 7 days) (30 yrs., 7 days) (30 yrs., 7 days) (30 yrs., 7 days) (30 yrs., 7 days) (30 yrs., 7 days) (30 yrs., 6 days)
30 yrs., 7 days 30 yrs., 7 days 30 yrs., 7 days 30 yrs., 7 days 30 yrs., 7 days 30 yrs., 7 days 30 yrs., 7 days 30 yrs., 6 days
Chamber and Years in Each
Sources: Includes various editions of the Congressional Directory; the Biographical Directory of theAmerican Congress, 1774-2005 (Alexandria, VA: CQ Staff Directories, Inc., 1996); and the Congressional Record, vol. 113 (March 9, 1967), pp. 6191-6193. Note: Service calculated as of July 7, 2007. Members currently serving are identified in bold. The three women who have served more than 30 years are listed in italics. a Members with the identical length of service are ranked with the same number. The total number of Members of Congress with 30 years of service is 234. b In calculating the congressional service of these Members, leap year days were counted as extra days, and 30 days were counted as one month.
In: Congress of the U.S: Commitees, Rules and Procedures ISBN 978-1-60456-416-7 Editor: Sela G. Thomason © 2009 Nova Science Publishers, Inc.
Chapter 12
U.S. TRADE STATUTES: EXPIRATION DATES AND MANDATED PERIODIC REPORTS TO CONGRESS * Mary Jane Bolle, William H. Cooper, Ian F. Fergusson, J. F. Hornbeck, James K. Jackson, Vivian C. Jones, Danielle Langton, Michael F. Martin,M. Angeles Villarreal Jennifer E. LakeCharles E. Hanrahan, Remy Jurenas and Brent D. Yacobucci SUMMARY The Constitution gives Congress express power over the imposition of tariffs and the regulation of foreign trade. As part of this responsibility, Congress enacts laws including those that: establish tariff rates; implement trade agreements; provide remedies against unfairly traded imports; control exports of sensitive technology; and extend tariff preferences to imports from developing countries. Over time, and under carefully prescribed circumstances, Congress has delegated some of its trade authority to the Executive Branch. Congress, however, has, in some cases, kept tight reins on the use of this authority by requiring that certain trade laws and programs be renewed; and by requiring the Executive Branch to issue reports to Congress to monitor the implementation of the trade laws and programs. This chapter is intended to assist Congress in exercising its oversight responsibilities regarding foreign trade. It is designed as a quick reference guide on two key elements of U.S. trade statutes: (a) expiration dates for major trade programs and trade statutes; and (b) mandated periodic reports to Congress. To this end, the chapter provides this information in two tables. Table 1 includes expiration dates of programs or laws. Table 2 includes *
This is an edited, excerpted and augmented edition of a CRS Report for Congress publication, Order Code RL341 96, dated October 2, 2997.
256
Mary Jane Bolle, William H. Cooper, Ian F. Fergusson et al.
information on mandated reports to Congress by the Executive branch, as required under various trade laws. The organization of, and information in, this chapter is based on the content and structure of the House Ways and Means Committee Print, Overview and Compilation of U.S. Trade Statutes, Parts I and II (2005). Together, these two volumes are commonly referred to as the House Ways and Means Blue Book, referring to the color of their covers. The Blue Book pulls together key information for Congress relating to the trade statutes. Specifically, Table 1 lists expiration dates for the roughly 24 trade statutes or programs that include termination dates – which range from 2007 to 2015. It also lists reciprocal trade agreements, which have no expiration dates. Table 2 includes laws that require, in all, approximately 41 separate reports to Congress. The required publication frequency for most of these reports is typically either biannual, annual, or biennial.
INTRODUCTION The Constitution gives Congress express power over the imposition of tariffs and the regulation of foreign trade. As part of this responsibility, Congress enacts laws including those that: establish tariff rates; implement trade agreements; provide remedies against unfairly traded imports; control exports of sensitive technology; and extend tariff preferences to imports from developing countries. Over time, and under carefully prescribed circumstances, Congress has delegated some of its trade authority to the Executive Branch. Congress, however, has, in some cases, kept tight reins on the use of this authority by requiring that certain trade laws and programs be renewed; and by requiring the Executive Branch to issue reports to Congress to monitor the implementation of the trade laws and programs. This chapter is intended to assist Congress in exercising its oversight responsibilities regarding foreign trade.1 It is designed as a quick reference guide on two key elements of U.S. trade statutes: (a) expiration dates for major trade programs and trade statutes; and (b) mandated periodic reports to Congress. To this end, the chapter provides this information in two tables. Table 1 includes expiration dates of programs or laws. Table 2 includes information on mandated reports to Congress by the Executive branch, as required under various trade laws. The organization of, and information in, this chapter is based on the content and structure of the House Ways and Means Committee Print, Overview and Compilation of U.S. Trade Statutes, Parts I and II (2005). Together, these two volumes are commonly referred to as the House Ways and Means Blue Book, referring to the color of their covers. The Blue Book pulls together key information for Congress relating to the trade statutes.2 Part I of the Blue Book provides overviews and explanations of the various trade statutes, under seven basic headings: Tariff and Customs Laws; Trade Remedy Laws; Other Laws Regulating Imports; Laws Regulating Export Activities; Authorities Relating to Political or 1 2
This chapter was prepared with the assistance of Jeanne Grimmett, CRS. The Blue Book is available online (but not electronically searchable) at: Volume 1: http:// www.waysandmeans.house.gov/media/pdf/109cong/wmcp/wmcp 109-4pdf and Volume II: http:// www.waysandmeans.house.gov/media/pdf/109cong/wmcp/wmcp 109- 5pdf.
U.S. Trade Statutes
257
Economic Security; Reciprocal Trade Agreements; and Organization of Trade Policy Functions. Sub-categories within each subject area provide background on or description of a specific law or program, or a concept which cuts across various laws. Part II of the Blue Book presents the text of the respective trade laws that fall within these seven overall headings. Specifically, Table 1 lists expiration dates for the roughly 24 trade statutes or programs that include termination dates – which range from 2007 to 2015. It also lists reciprocal trade agreements, which have no expiration dates. Within Table 1, the laws are grouped by Blue Book chapter and organized within each chapter by expiration date. Also included in Table 1 are some laws which have already expired which Congress may at some point reconsider, for example, the trade promotion authority component of the Trade Act of 2002, which expired June 30, 2007. Also included in the table are some laws which were passed after the 2005 Blue Book went to press. Hence, these do not include Blue Book page references. For most expiring laws, however, page numbers are included to reference the relevant sections in volume I and the statutes in volume II. Table 1. U.S. Trade Statutes: Expiration Dates for Trade Statutes and Programs as Reported in “Overview and Compilation of U.S. Trade Statutes,” 2005 Edition (House Ways and Means “Blue Book”) Chapters/ Expiration date: Year Month/ Day Chapters 1 and 8: Tariff and Customs Laws 2008 Feb. 29 Andean Trade Preference Act, as amended (ATPA), P.L. 102-182 (1991). ATPA was modified and extended in the Andean Trade Preference and Drug Eradication Act (ATPDEA), Title XXXI of the Trade Act of 2002, P.L. 107-210 (2002). ATPA, as amended, was most recently extended by P.L. 110-42 (2007). 2008 Sept. 30 Caribbean Basin Trade Partnership Act (CBTPA), P.L. 106-200, (2000). Provides NAFTA equivalent treatment for textiles and other goods. 2008 Dec. 31 Generalized System of Preferences Trade Act of 1974, P.L. 93-618 (1975), as amended. Last extended by P.L.109-432, (2006). 2008 Dec. 31 CBERA Special Provisions for Dehydrated Ethanol, set forth in the Caribbean Basin Economic Recovery Expansion Act of 1990 (CBI II), P.L. 101382, title II (1990), provides duty-free treatment for some ethanol produced in some countries covered by CBTPA. Most recently amended by P.L. 109-432, Division D, Sec. 402 (2006).
Page # Vol. I
Vol. II
35 and 38
417
29
381
14
362
26
411
258
Mary Jane Bolle, William H. Cooper, Ian F. Fergusson et al. Table 1. (Continued).
Chapters/ Expiration date: Year Month/ Day Chapters 1 and 8: Tariff and Customs Laws
Page # Vol. I
Vol. II
2012
50
443
23
381
69
468
69
485
44
436
154
819
Sept 30
African Growth and Opportunity Act (AGOA), P.L. 106-200, (2000). Most recently extended by P.L. 109-432 (2006). Provides for duty-free treatment of apparel articles, from lesser developed AGOA countries only. (See additional reference below on expiration of main AGOA provisions.) 2012 Sept. 30 Caribbean Basin Initiative (CBI), was established in the Caribbean Basin Economic Recovery Act (CBERA), P.L. 98-67, (1983). CBERA was amended and made permanent in the Caribbean Basin Economic Recovery Expansion Act of 1990 (CBI II), P.L. 101-382 (1990), but provisions may be revoked by the President under certain conditions. CBI Benefits for Haiti. Under P.L. 109-432, (2006), CBERA was amended with additional temporary benefits conveyed to Haiti (expiring Sept. 30, 2012). 2014 Oct. 7 Customs User Fees: Conveyance Fees, included in the Consolidated Omnibus Budget Reconciliation Act of 1985, P.L. 99-272 (1985), as amended. Most recently amended by P.L. 110-89 (2007). 2014 Oct. 21 Customs User Fees: Merchandise Processing Fees, Omnibus Budget Reconciliation Act of 1986, P.L. 99509 (1986). Most recently amended by P.L. 110-52 (2007). 2015 Sept 30 African Growth and Opportunity Act (AGOA), P.L. 106-200 (2000), as extended in the AGOA Acceleration Act of 2004, P.L. 108-274. (2004) and P.L. 109-432. Chapters 2 and 9: Trade Remedy Laws Trade Adjustment Assistance 2007 Dec. 31 Trade Adjustment Assistance for Farmers, Trade Adjustment Assistance Reform Act of 2002, P.L. 107210, (2002). Most recently updated by P.L. 110-89 (2007).
U.S. Trade Statutes 2007
Dec. 31
145 Trade Adjustment Assistance for Workers established by the Trade Expansion Act of 1962, P.L.87-794 (1962), and later by the Trade Act of 1974, P.L. 93-618 (1974). Most recently updated by P.L. 110-89 (2007). 2008 Dec. 31 Trade Adjustment Assistance for Firms, 152 established in the Trade Expansion Act of 1962, P.L. 87-794, (1962), renewed in the Trade Act of 2002, P.L. 107-210, (2002). Most recently updated by P.L. 110-89 (2007). Relief from Market Disruption 2013 Dec. 10 Relief From Market Disruption by Imports from 141 the People’s Republic of China (PRC), Trade Act of 1974, Sec. 421-423, P.L. 93-618 (1974). Inserted by P.L. 106-286 (2000). Expires 12 years after PRC WTO Accession Agreement entered into force on Dec. 11, 2001 under P.L. 93-618, Sec. 423 (2001). Chapters 3 and 10: Other Laws Regulating Imports Authorities to Restrict Imports or Agricultural and Textile Products 1994 Dec. 31 Multifiber Arrangement (MFA), entered into force 156 on Jan. 1, 1974 via the authority granted to the President by section 204 of the Agricultural Act of 1956 (as amended), PL 84-540; last amended by P.L. 103-465 (1994). The MFA was replaced by the Uruguay Round Agreement on Textiles and Clothing. 2004 Dec. 31 Uruguay Round Agreement on Textiles and 159 Clothing, entered into force on Jan. 1, 1995 via the authority granted to the President by section 204 of the Agricultural Act of 1956 (as amended), P.L. 84540 (1956); last amended by P.L. 103-465 (1994); Agreement expired per Article 9 of the Agreement. 2008 Dec. 31 Not in Blue Book: – U.S.-China Memorandum of Understanding on Clothing and Textiles, entered into force on Jan. 1, 2006, via authority granted to the President by section 204 of the Agricultural Act of 1956, P.L. 84540 (1956); last amended by P.L. 103-465 (1994). Chapters 4 and 11: Laws Regulating Export Activities Agricultural Exports Sales and Promotion 2007 Sept. 30 Public Law 480 (International Food Aid); P.L. 214 83-480 (1954), as amended most recently by P.L. 107-171 (2002).
259 784
808
773
828
828
–
–
260
Mary Jane Bolle, William H. Cooper, Ian F. Fergusson et al. Table 1. Continued
Year
Month/ Day Export Credit Guarantees and Export Promotion Programs 2007 Sept. 30 Commodity Credit Corporation (CCC) Export Credit Guarantees. Agricultural Trade Act of 1978 (Title II), P.L.95-501 (1978), as amended most recently by P.L. 107-171) (2002). 2007 Sept. 30 Export Enhancement Program Agricultural Trade Act of 1978 (Title III), P.L.95501(1978), as amended by the Uruguay Round Agreements Act (P.L. 103-465) and most recently by P.L. 107-171 (2002). 2007 Sept. 30 Foreign Market Development Program Agricultural Trade Act of 1978 (Title VII), P.L.95-501 (1978) as amended most recently by P.L. 107-171 (2002). 2007 Sept. 30 Market Access Program Agricultural Trade Act of 1978 (Title II), P.L. 95501 (1978), as amended most recently by P.L. 107-171 (2002). Chapters 5 and 12: Authorities Relating to Political or Economic Security 2008 July 27 I. Trade Sanctions Against Burma, Burmese Freedom and Democracy Act, P.L. 108-61 (2003). Import sanctions expire yearly unless renewed. Most recently extended by P.L. 110-52, (2007). Sanctions may be renewed for a maximum of six years after the date of enactment (until 2009). 2011 Dec. 31 C. Economic Sanctions Against Libya, Iran, and Iraq, Iran and Libya Sanctions Act of 1996, P.L. 104-172 (1996) as amended and extended by Iran Freedom Support Act, P.L. 109-293 (2006). Chapters 6 and 13: Reciprocal Trade Agreements 2007 June 30 Trade Promotion Authority (TPA), established in the Trade Act of 1974, P.L. 93-618 (1974), renewed by P.L. 107-210, (2002). __* __ Uruguay Round Agreements, implemented by the Uruguay Round Agreements Act, P.L. 103465, (1994). Entered into force on January 1, 1995.
Vol. I
215
Vol. II
–
215
215
–
215
–
248
1035
237
971
258
1089
263
1082
U.S. Trade Statutes
*
__
__
__
__
__
__
__
__
__
__
__
__
__
__
__
__
North American Free Trade Agreement (NAFTA), implemented by the North American Free Trade Agreement Implementation Act, P.L. 103-182, (1993). Entered into force on January 1, 1994. U.S.-Israel Free Trade Agreement, implemented by the United States-Israel Free Trade Area Implementation Act of 1985, P.L. 9947, (1985). Entered into force on September 1, 1985. U.S.-Canada Free Trade Agreement (CFTA), implemented by the United States-Canada Free Trade Agreement Implementation Act of 1988, P.L. 100-449, (1988). Entered into force on January 1, 1989; suspended as long as NAFTA is in effect. Some CFTA provisions are incorporated into NAFTA, however, for purposes of U.S.-Canada obligations. U.S.-Jordan Free Trade Agreement, implemented by the United States-Jordan Free Trade Area Implementation Act, P.L. 107-43, (2001). Entered into force on December 17, 2001. U.S.-Chile Free Trade Agreement, implemented by the United States-Chile Free Trade Agreement Implementation Act, P.L. 10877, (2003). Entered into force on January 1, 2004. U.S.-Singapore Free Trade Agreement, implemented by the United States-Singapore Free Trade Agreement Implementation Act, P.L. 108-78, (2003). Entered into force on January 1, 2004. U.S.-Australia Free Trade Agreement, implemented by the United States-Australia Free Trade Agreement Implementation Act, P.L. 108-286, (2004). Entered into force on January 1, 2005. U.S.-Morocco Free Trade Agreement, implemented by the United States-Morocco Free Trade Agreement Implementation Act, P.L. 108-302, (2004). Entered into force on January 1, 2006.
Generally, trade agreements do not expire.
261 288
1201
291
1280
294
1287
297
1319
300
1328
305
1353
310
1376
316
1409
262
Mary Jane Bolle, William H. Cooper, Ian F. Fergusson et al. Table 1. Continued
Year
Month/ Day
Vol. I
Vol. II
Free Trade Agreements Implemented, but not Listed in Blue Book __
__
__
__
__
__
Dominican Republic-Central America-United States Free Trade Agreement (CAFTA-DR), implemented by the Dominican Republic-Central America-United States Free Trade Agreement Implementation Act, P.L. 109-53, (2005). Entered into force on a rolling basis between March 1, 2006 and March 1, 2007 with all countries except Costa Rica.
–
–
S.-Bahrain Free Trade Agreement, implemented by United States-Bahrain Free Trade Agreement Implementation Act, P.L. 109-169, (2006). Entered into force on August 1, 2006.
–
–
U.S.-Oman Free Trade Agreement, implemented the U.S.-Oman Free Trade Agreement Implementing Act, P.L. 109-283, (2006). Not yet entered into force.
–
–
Table 2 includes laws that require, in all, approximately 41 separate reports to Congress. The required publication frequency for most of these reports is typically either biannual, annual, or biennial (every two years). Some of the required reports have become comprehensive well-known documents. In such cases, the actual title is mentioned in the table. These reports include the U.S. Trade Representative’s National Trade Estimate Report on Foreign Trade Barriers and the Trade Policy Agenda and Annual Report on the Trade Agreements Program; the International Trade Commission’s The Year in Trade: Operation of the Trade Agreements Program; and the State Department’s Country Reports on Economic Policy and Trade Practices and Country Reports on Human Rights Practices. There are two purposeful exclusions from Table 2. First, in general, reports mandated by Congress for “one time only” are not included. The exception to this is reports mandated by trade promotion authority, which required the “one time only” publication of a number of documents for each new trade agreement. Second, also not included in this listing are “ifthen” (i.e., conditional) reports – that is, reports to Congress mandated only if a certain event actually occurs.
U.S. Trade Statutes
263
Table 2. U.S. Trade Statutes: Periodic Reports to Congress Mandated by Various Statutes Mandated Reports to Congress as Reported in “Overview and Compilation of Trade Statutes,” 2005 Edition (House Ways and Means “Blue Book”) Chapters/General Subject / Report Mandated Mandated Report Frequency Chapters 1 and 8: Tariff and Customs Laws Generalized System of Preferences (GSP), Trade Act of 1974, P.L. 93-618 (1975). Most recently extended by P.L. 109-432 (2006).
Page # Vol. Vol. II I 1 14
362 362
16, 17
366
Applicability of GSP and Progress of Beneficiary Countries: Report to Congress by the President as necessary, on the application of the GSP, the progress of beneficiary countries in compliance with the eligibility criteria in the program, and the actions the President has taken to withdraw, suspend, or limit the applicability of GSP for countries failing to adequately take the criteria into account. (Sec. 502(d)(3)). Reported in the Federal Register.
Annual (in
Designation or Termination of Beneficiary Countries: Report to Congress by the President 60 days prior of his intention to designate any country as a Beneficiary Developing Country (BDC) or Least Developed Beneficiary Developing Country (LDBDC) or to terminate the designation thereof. (Sec.502(f)). Country Progress on Internationally Recognized Worker Rights: Report to Congress by the President on the status of internationally recognized worker rights within each BDC, including the country’s commitments to eliminate the worst forms of child labor (Sec. 504). This information is included in the State Department’s annual Country Reports on Human Rights Practices.
Periodic
17
366
Annual
22
372
23, 29
381
29
386
practice)
Caribbean Basin Initiative (CBI), Caribbean Basin Economic Recovery Act (CBERA), P.L. 98-67, (1983) and the Caribbean Trade Partnership Act (CBTPA), P.L. 106200, (2000). Most recently amended by P.L. 109-432 (2006). Operations of CBERA and CBTPA: Report to Congress by the United States Trade Representative (USTR) on the operations of CBERA and CBTPA by December 31 of every odd-numbered year.
Biennial (every two years)
264
Mary Jane Bolle, William H. Cooper, Ian F. Fergusson et al. Table 2. Continued
Chapters/General Subject / Report Mandated
Economic Effects of CBERA and CBTPA on U.S. and Beneficiary Countries: Report to Congress by the United States International Trade Commission (USITC) on the economic effects of CBERA and CBTPA on the United States and beneficiary countries by September 30 of every odd- numbered year. Andean Trade Preference Act (ATPA), as amended, P.L. 102- 182 (1991). Most recently extended by P.L. 110-42 (2007). Operation of ATPA: Report to Congress by the Office of the United States Trade Representative (USTR) on the operation of the Andean Trade Preference Act (ATPA), including a general review of beneficiary countries and the performance of beneficiary countries. Every two years, in odd-numbered years. Economic Impact of ATPA: Report to Congress by the U.S. International Trade Commission (USITC) on the economic impact of ATPA on U.S. industries and consumers, and its effectiveness in promoting drug-related crop eradication and crop substitution efforts of beneficiary countries. Report shall be in the years alternative to those in which the CBI report is submitted – i.e., in even-numbered years). Labor Impact of ATPA: Report to Congress by the Secretary of Labor on the impact of ATPA with respect to U.S. labor. African Growth and Opportunity Act (AGOA), P.L. 106200 (2000). Most recently updated by P.L. 108-274 (2004) and P.L. 109-432 (2006). Implementation of AGOA and Progress Thereunder: Report to Congress on the trade and investment policy of the United States for sub-Saharan Africa, and on the implementation of AGOA and its amendments. This report must also include a review of the progress of each subSaharan African country toward meeting the requirements to be eligible for AGOA.
Mandated Report Frequency Biennial
29
404
35
417
Biennial
42
420
Biennial
43
434
Annual
43
435
44
435
45
441, 436
92
544
92
552
96
555
Annual through 2008
Foreign Trade Zones U.S. Foreign Trade Zones Act of 1934, P.L. 73-397 (1934), most recently amended by P.L. 108-357 (2004). Zone Operations: Report to Congress including a summary of zone operations Chapters 2 and 9: Trade Remedy Laws
Page # Vol. Vol. II I
Annual
U.S. Trade Statutes
265
Identification of Countries that Deny Intellectual property rights (Special 301), as added to the Trade Act of 1974, P.L. 93-618 (1974) by P.L. 100-418 (1988). Countries Denying Protection or Market Access: Report to Congress by the USTR identifying countries that deny adequate protection or market access for intellectual property rights. Report due each year by April 30. Chapters 3 and 10: Other Laws Regulating Imports Government Procurement: WTO Agreement on Government Procurement, Trade Agreements Act of 1979, P.L. 96-39 (1979), most recently updated by P.L. 108286 (2003). Government Actions to Establish Reciprocity: President shall report in the annual Trade Policy Agenda and Annual Report the actions, if any, he deemed appropriate to establish reciprocity with major industrial countries in the area of government procurement. Chapters 4 and 11: Laws Regulating Export Activity Export Controls: Export Administration Act of 1979, P.L. 96-72 (1979). Implementation: Report by President to Congress on the implementation of the Act. Chapters 5 and 12: Authorities Relating to Political or Economic Security C. Economic Sanctions Against Iraq, Libya, and Iran. Iran- Libya Sanctions Act of 1996, P.L.104-172 (1996). Most recently extended by P.L. 109-293 (2006).
Annual
Annual
Annual
Report Relating to Iran: Report by President on multilateral efforts to pressure Iran to cease development of weapons of mass destruction (WMD), the status of the International Atomic Energy Agency (IAEA) inspection efforts, multilateral efforts to reduce Iranian diplomatic presence overseas, and the use of Iranian diplomats or other representatives to promote terrorism. D. Trade Sanctions Against Uncooperative Major Drug Producing or Drug-Transit Countries. Narcotics Control Trade Act, P.L. 93-618 (1975) as added by P.L. 99-570 (1986). Most recently amended by P.L. 106-36 (1999).
Every six months
Report on Countries’ Progress in Achieving CounterNarcotics Objectives: As part of the annual report required under Sec. 489 of the Foreign Assistance Act of 1961 (22 USC 2291(h) (see entry below), a report by President to Congress evaluating progress of major drugproducing or drug-transit countries in meeting certain counter-narcotics objectives. (Presidential certification that objectives are met entitles such countries to various tariff benefits).
Annual
128
1150
128
1150
156 193
828 901
202
908
205 205
912 912
207
914
217
934
237
970
238
978
239
983
241
988
266
Mary Jane Bolle, William H. Cooper, Ian F. Fergusson et al. Table 2. Continued
Chapters/General Subject / Report Mandated Mandated Report Frequency Foreign Relations Authorization Act of 2003, P.L. 107-228 (2002) Report Identifying Major Drug-Transit or Illicit DrugProducing Countries: Report by President to Congressional Committees identifying each country determined to be a major drug transit country or major illicit drug producing country, as defined in the Foreign Assistance Act of 1961, including names of countries that “failed demonstrably” to adhere to counter- narcotic obligations, by Sept. 15 each year. G. Sanctions Against Sudan, Sudan Peace Act, P.L. 107245 (2002), most recently updated by P.L. 109-344 (2006). Certification of Good Faith Negotiating: President must certify to Congress that the government of Sudan is conducting negotiations in good faith. H. Sanctions to Address Illicit Diamond Trade, Clean Diamond Trade Act, P.L. 108-19 (2003) Report on Actions to Control Exportation of Conflict Diamonds: Report by President to Congress describing actions taken by countries that have exported rough diamonds to the United States during the preceding 12month period. The aim is to control the exportation of such diamonds through the “Kimberley Process Certification Scheme” (KPCS), designed to keep out “conflict diamonds” used to finance military activities to overthrow legitimate governments, subvert international peace efforts, or commit atrocities against unarmed civilians. Report on Countries not Complying: Report on each country identified in the above report not adhering to KPCS and actions to insure diamonds from those countries are not imported into the United States. I. Sanctions Against Burma, Burmese Freedom and Democracy Act, P.L. 108-61 (2003). Updated most recently by P.L. 110-52 (2007). Report on Effectiveness of Trade Sanctions: Report by Secretary of State to Senate Committees on Appropriations, Finance, and Foreign Relations; and House Committees on Appropriations, Foreign Affairs, and Ways and Means, on the effectiveness of trade sanctions on concerns including human rights and worker rights, due 90 days before import restrictions (renewable annually) expire.
Page # Vol. Vol. II I 241
991
239
991
246
1015
246
1018
247
1028
Annual
247
1033
Semiannual
247
1034
248
1035
248
1039
Annual
Semiannual
Annual (see conditions)
U.S. Trade Statutes J. Sanctions Against Syria, Syrian Accountability and Lebanese Sovereignty Restoration Act, P.L. 108-175, (2003). Report on Syria’s Progress Against Support of Terrorist Groups: Report by Secretary of State to Senate Foreign Relations; and House Committees on Appropriations, Foreign Affairs, House Foreign Affairs Committee on Syria’s progress in meeting certification conditions under the Act. Report required only until all certification conditions are met. K. Sanctions Against Belarus, Belarus Democracy Act of 2004, P.L. 108-347 (2004) Report on Weapons Trade: Report from Secretary of State to House Foreign Affairs Committee and Senate Foreign Relations Committee on Belarus weapons trade to countries whose governments support acts of international terrorism, and on assets of the leadership of Belarus. L. United States-Hong Kong Policy Act of 1992, P.L. 102-383 (1992). Most recently amended by P.L. 107-115 (2002). Report on Conditions of Interest to the United States: Report from State to the Speaker of the House and the Senate Foreign Relations Committee “on conditions in Hong Kong of interest to the United States.” Not Listed in Blue Book: Exemption for Food and Medical Product Exports from Broad U.S. Export Sanctions. Trade Sanctions Reform and Export Enhancement Act, P.L.106-387 (2000). Reports on Licensing Activity: Requires Department of the Treasury's Office of Foreign Assets Control and Department of Commerce's Bureau of Industry and Security to submit reports to appropriate congressional committees on licenses issued for the export of agricultural commodities, medicine, or medical devices to Cuba or to governments of countries designated to be state sponsors of international terrorism. Report due every three months, with a more comprehensive report every two years. Chapters 6 and 13: Reciprocal Trade Agreements Trade Promotion Authority, established in the Trade Expansion Act of 1962, P.L. 87-794, (1962). Requires four major reports to Congress for each free trade agreement (FTA) implementing bill: Report on Plan for Implementing and Enforcing the FTA: Presidential report to Congress on a plan for implementing and enforcing the FTA. Submitted along with the text of the FTA.
267 248
1041
248
1048
249
1049
249
1052
249
1054
Annual
249
1060
Biennial (see details)
—
—
252
1069
252
1089
259
1104
Annual (see conditions)
Annual
Once
268
Mary Jane Bolle, William H. Cooper, Ian F. Fergusson et al. Table 2. Continued
Chapters/General Subject / Report Mandated
Report on Effect of Proposed FTA on U.S. Trade Remedy Laws: Report to the House Ways and Means and the Senate Finance Committees from the President on how a proposed FTA would affect U.S. trade remedy laws. Due at least 180 calendar days before the President enters into the FTA. Reports by Various Trade Advisory Committees: Trade Advisory Committee reports due to Congress no later than 30 days after the President notifies Congress of his intention to enter into an FTA. Report on Overall and Sectoral Economic Effects of FTA: Report from the U.S. International Trade Commission (USITC) to Congress on an assessment of the overall and sectoral economic effects of the proposed FTA. Due no later than 90 calendar days after the President enters into the FTA. Uruguay Round Agreements (URA), as passed in the Uruguay Round Agreements Act, P.L. 103-465, (1994). Report on Operation of the WTO: USTR Annual Report to Congress on Operation of the World Trade Organization (WTO). Submitted by March 1. North American Free Trade Agreement (NAFTA), implemented by the North American Free Trade Agreement Implementation Act, P.L. 103-182, (1993). Report on Effect of NAFTA on Agricultural Producers: Report to the House and Senate Agriculture Committees by the Secretary of Agriculture on the effects of NAFTA on U.S. agriculture producers. Due March 1 on odd number years through 2011. Trade negotiation procedural requirements, Sections 127(a) and (b) of the Trade Act of 1974. “National Trade Estimate Report (NTE) on Foreign Trade Barriers,” as incorporated into the Trade Act of 1974, P.L. 93- 618, (1974) by the Omnibus Tariff and Trade Act of 1984, P.L. 98-573, (1984). USTR report to House Ways and Means and Senate Finance Committees due no later than March 31. China Permanent Normal Trade Relations (PNTR), Normal Trade Relations for the People’s Republic of China Act, P.L. 106- 286, as amended, (2000).
Page # Mandated Vol. Report I Frequency Once 263
1098
Once
–
1099
Once
262
1099
265
1120
266
1130
288
1087
–
1242
Annual
Biennial
Vol. II
1147 Annual
270
1147
1183
U.S. Trade Statutes
269
Report by China Human Rights Commission: Congressional- Executive Commission Report on China Human Rights. Report to President and Congress; no date specified. Report on China’s Compliance with WTO Obligations: USTR report to Congress on China’s compliance with WTO obligations; no date specified.
Annual
280
1190
Annual
280
1195
Report on Allegations of Violations of Sec. 307 of the Tariff Act of 1930 (relating to goods made with forced or prison labor): Report by Task force to Congress; no date specified.
Annual
280
1197
Biennial
__
__
322
1431
323
1435
Annual
323
1435
Annual
323
1437
Annual
323
1438
–
1438
324325
1438
Reports in FTAs not yet in Bluebook Dominican Republic-Central America-United States Free Trade Agreement (CAFTA-DR), implemented by the Dominican Republic-Central America-United States Free Trade Agreement Implementation Act, P.L. 109-53, (2005). Report to Congress on Implementation of Labor Provisions. No date specified. USTR report begins two years after a country implements CAFTA-DR and continues for following 14 years. Chapters 7 and 14: Organization of Trade Policy Functions Organization of Trade Policy Functions: Congress: Congressional Oversight Group: Sections 162 and 163 of the Trade Act of 1974, as amended. P.L. 93-618 (1975). Most recently amended by P.L. 107-210 (2002). “Trade Policy Agenda and Annual Report on the Trade Agreements Program”: National Trade Policy Agenda to Congress by the USTR, by March 1 of each year. Trade Projection Report to the Senate Finance and House Ways and Means Committees by the USTR and the Secretary of the Treasury on or before March 1 of each year. “The Year in Trade: Operation of the Trade Agreements Program”: Factual Report to Congress by the International Trade Commission (USITC) on the operation of the trade agreements program. Reports and Consultation to Congress: Section 2202 of the Omnibus Trade and Competitiveness Act of 1988, P.L. 100-418 (1988). “Country Reports on Economic Policy and Trade Practices” to House Foreign Affairs and Ways and Means Committees and the Senate Foreign Relations and Finance Committees by the Secretary of State, by January 31 each year.
Annual
270
Mary Jane Bolle, William H. Cooper, Ian F. Fergusson et al. Table 2. Continued
Chapters/General Subject / Report Mandated
U.S. International Trade Commission: Section 332 of the Tariff Act of 1930, as amended, P.L. 71-361 (1930). Last amended by P.L.100-647 (1988). Report on Unfair Trade Practices: Report to Congress by the USITC on the first Monday of December on methods adopted, expenses incurred, reports made, and votes taken by the Commission, plus complaints filed under Section 337 relating to unfair practices in import trade which would injure a U.S. industry or restrain or monopolize trade in the United States.
Page # Mandated Vol. Report I Frequency 331
1464
Annual
1466
331
Vol. II
In: Congress of the U.S: Commitees, Rules and Procedures ISBN 978-1-60456-416-7 Editor: Sela G. Thomason © 2009 Nova Science Publishers, Inc.
Chapter 13
ROLES AND DUTIES OF A MEMBER OF CONGRESS* R. Eric Petersen SUMMARY The duties carried out by a Member of Congress are understood to include representation, legislation, and constituent service and education, as well as political and electoral activities. The expectations and duties of a Member of Congress are extensive, encompassing several roles that could be full-time jobs by themselves. Despite the acceptance of these roles and other activities as facets of the Member’s job, there is no formal set of requirements or official explanation of what roles might be played as Members carry out the duties of their offices. In the absence of formal authorities, many of the responsibilities that Members of Congress have assumed over the years have evolved from the expectations of Members and their constituents. Upon election to Congress, Members typically develop approaches to their jobs that serve a wide range of roles and responsibilities. Given the dynamic nature of the congressional experience, priorities placed on various Member roles tend to shift in response to changes in seniority, committee assignment, policy focus, district or state priorities, institutional leadership, and electoral pressures. In response, the roles and specific duties a Member carries out are often highlighted or de-emphasized accordingly. Although elements of all the roles described can be found among the duties performed by any Senator or Representative, the degree to which each is carried out differs among Members. Each Member may also emphasize different duties during different stages of his or her career. With no written requirements, each Member is free to define his or her own job and set his or her own priorities.
* This is an edited, excerpted and augmented edition of a CRS Report for Congress publication, Order Code RL33686, dated October 10, 2006.
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INTRODUCTION The U.S. Constitution establishes qualifications for Representatives and Senators, but it is silent about the roles and duties of an individual Member of Congress.1 House and the Senate rules require only that Members be present and vote on each question placed before their chamber.2 The job of a Member of Congress has been characterized as “a license to persuade, connive, hatch ideas, propagandize, assail enemies, vote, build coalitions, shepherd legislation, and in general cut a figure in public affairs.”3 There is no formal set of requirements or official explanation of what roles or duties are required, or what different Members might emphasize as they carry out their work. In the absence of such formal authorities, many of the responsibilities that Members of Congress have assumed over the years have evolved from the expectations of Members and their constituencies.4 Today, the roles and duties carried out by a Member of Congress are understood to include representation, legislation, and constituent service and education, as well as political and electoral activities. In a typical week, Members may oversee constituent services in the state or district, travel between their state or district to Washington, DC, to participate in committee activities, greet a local delegation from the home state, meet with lobbyists, supervise office staff, speak on the floor, conduct investigations, interact with the news media, and attend to various electoral duties, including fundraising, planning, or campaigning for reelection. Given that no precise definition exists for the role of a Member, upon election to Congress, each new Member is responsible for developing an approach to his or her job that serves a wide range of roles and responsibilities. One observer of Congress notes that the first job of a Member is to come ...to grips with the dimensions of [their] role and develop a personal approach to [their] tasks. Given the many challenges, the overall conclusion is readily apparent: the key to effectiveness in Congress is the ability to organize well within a framework of carefully selected priorities. It is not possible, however, to construct a grand master plan such that priorities and the time devoted to each will neatly mesh, for legislative life is subject to sudden and numerous complications.5
Observers note that after identifying and organizing priorities, a Member typically carries out some of the resulting duties personally, and delegates others to congressional staff who act on his or her behalf. The staff may work in the Member’s individual office, on committees to which the Member is assigned, in offices connected to leadership posts the Member may hold, and to the separate political and reelection operations the Member may maintain. In this understanding, the Member sets broad policies to fulfill his or her duties, and the appropriate staff act to carry them out. The distribution of responsibility will vary according to the preferences and priorities of the Member at the center of the effort. Typically, however, the work carried out by staff is publicly attributed to the effort of the Member.6 Many scholars of Congress see these Member choices and delegation arrangements as dependent in part on their goals. Generally, these observers suggest that Members pursue three primary goals: making good public policy, securing influence within Congress, and gaining reelection. The relative priority a Member may assign to these goals can affect a wide range of choices regarding a congressional career, including (1) the emphasis given to different roles and duties; (2) activities in the Washington, DC, and district or state offices;
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(3) staffing choices in Member and committee offices; and (4) preference for committee assignments. It can also affect a Member’s approaches to legislative work, constituent relations, media relations, party issues, and electoral activities.7 Given the dynamics of the congressional environment, the priorities that Members place on various roles may change as the their seniority increases, or in response to changes in committee assignments, policy focus, district or state priorities, institutional leadership, or electoral pressures.
MEMBER AND PUBLIC EXPECTATIONS As part of a broader evaluation of House administrative practices in the mid- 1970s,8 the House Commission on Administrative Review surveyed Members of the House and asked them to describe the major jobs, duties, and functions that they believed they were expected to perform. At the same time, the commission hired the research firm Louis Harris and Associates to conduct a survey of the public to gauge its expectations of Congress and its Members. The Member survey found that the three most frequently mentioned duties and activities were the drafting and introduction of legislation; helping constituents solve problems; and representing the interests of their districts and constituents. Other expectations included position taking and constituent education.9 Table 1 summarizes the responses received by role categories established by the commission. Table 1. Roles and Duties of a Member of Congress Identified Role
Duties and Activities
Legislative Constituency Servant Education/ Communication Representative
Draft and introduce legislation Help constituents solve their problems
Political Oversight Institutional Office Management Everything Other
% of Members Identifying Role10 87 79
Articulate and take positions on issues; educate and inform constituents about legislation Represent and advocate the district’s and constituents’ interests Campaigning, party leadership, and reelection Determine that laws are administered as Congress intended Interact with the executive branch, interest groups and other levels of government Oversight of personal office
43
6
“Jack-of-all-trades” Other varied expectations
6 4
26 11 9 7
Source: U.S. House, Commission on Administrative Review, Final Report, vol. 2, pp. 874-875.
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According to the public survey conducted by the commission, the most common expectations of Members were to represent the people and district according to the wishes of the majority; to solve problems in the district; and to keep in contact with the people in the district through regular visits and meetings in the district and polls or questionnaires. Other public expectations included regular attendance in legislative sessions and voting on legislation. Table 2 summarizes the most frequently mentioned responses to the public survey. Despite differences in point of view, both the Member and public survey results describe common interests in local representation, constituency service issues, legislative activity, and regular contact between the Member and the district. The differences between Member and public expectations may reflect the different perspectives on the work of a Member of Congress. Where Members are daily confronted with representational, legislative, and institutional duties, the public focus on representational, legislative, and service responsibilities, apparently without recognizing a broader underlying institutional, procedural, and operational framework in which Members of Congress operate. Some observers suggest that this narrow public focus is in part a reflection of the attention the public gives, or does not give, to political matters in general.11 Table 2. Jobs, Duties, and Functions the Public Expects a Member of Congress to Perform Job Duty or Function Work to solve problems in the district, help the people, and respond the issues and needs of the district To represent the people and district, and to vote according to the wish of the majority of their constituents Keep in contact with the people, visit the district, know the constituents Find out what the people need, want, and think; send out polls and questionnaires Attend all or as many sessions as possible; be there to vote on legislation Be honest, fair, as truthful as possible, keep promises, and be of good character Work on improving the economy, lowering prices and creating more jobs Don’t know
% of Public Identifying Job, Duty, or Functiona 37 35 17 12 10 10 10 10
Source: U.S. House, Commission on Administrative Review, Final Report, vol. 2, pp. 822- 823. a Percentages are based on 1,518 public responses to the question, “what kinds of jobs, duties, or functions do you expect a good Congressman to perform?” This table identifies all responses that were mentioned by 10% or more of the respondents. An additional 15 responses encompassing a range of Member jobs, duties, or functions were identified by 9% or fewer of the respondents to the citizen survey.
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Common Member and public interest in local representation, constituency service issues, legislative activity, and regular contact between the Member and the constituency may partially explain how individual Members of Congress receive broad public satisfaction or approval of their performance while Congress as an institution, where Members engage the procedural and operational barriers the public disdains, routinely trails the executive and judicial branches in public approval.
ROLES OF MEMBERS The responses to the Member and public surveys suggest that the roles and duties of a Member of Congress can be identified in part as an outgrowth of congressional and public expectations. These congressional roles may be described by focusing on some of the underlying tasks typically required to carry them out. Because some of the duties are complex, and some of the underlying tasks often overlap, some of the roles may overlap. The roles described below are derived from • • •
congressional duties mentioned in the Constitution; responses to the House surveys of Members and the general public; and scholarly studies.
Representation Broadly, a system of representative government assumes that the will of the people is consulted and accommodated when making public policies that affect them. Consequently, representational activity is present in all of the roles of a Member. Representational activity is seen in the legislative process, constituent service, oversight, and investigation duties that Members carry out. In Congress, Members are elected to represent the interests of the people in their congressional district or state. In addition, they represent regional and national interests in matters which might come before Congress. On the local level, Members of the House represent congressional districts of populations ranging approximately from 500,000 to 900,000 constituents.12 Senators represent states that range in population from 509,000 (Wyoming) to more than 36.1 million (California).13 In the nation’s capital, Members serve as advocates for the views and needs of their constituents as well as stewards of national interests. Representational work may involve legislative activity such as analyzing the provisions of proposed legislation for their potential impact on the area represented, or constituent service activity, such as assisting individuals, local governments, and organizations in obtaining federal grants and benefits. Styles of representation differ. Some Members might view themselves as responding to instructions from their constituents — sometimes called the “delegate” style. Others might prefer to act upon their own initiative and rely upon their own judgment — sometimes called the “trustee” style. In practice, when considering new legislation or the effects of implementing existing law, the opinion of their constituency may often be uppermost in a Member’s mind. Constituent views, however, may vary in intensity from issue to issue, or fall on several sides of an issue, and the Member would typically take into account opinions from
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other sources as well. Consequently, most Members typically balance or reconcile these competing viewpoints with their own judgement when casting their votes, providing constituent service, or conducting oversight.14 Another facet of representation involves presenting a view of government activity to constituents and the broader American public. Members of Congress regularly draw attention to policy issues and federal government activities in order to educate constituents and other citizens and to encourage more robust citizen participation in public affairs. This educational function is typically performed through newsletters and special mailings sent to residents in the district or state, or through a variety of media outlets, which may include a Member website, and appearances and interviews on local television and radio programs.
Legislation Legislating is the process by which the interests of citizens from around the country are considered and turned into public policy. In developing and debating legislative proposals, Members may take various approaches to learn how best to represent the interests of their district or state, together with the interests of the nation. This may require identifying local, national, and international issues or problems which need legislative action, and proposing or supporting legislation which addresses them. Throughout the legislative process, Members of Congress routinely attend committee hearings and briefings, hold meetings and conversations with executive branch officials and with lobbyists representing various interested groups, and have discussions with congressional colleagues. In addition, many Members receive staff briefings based on a broad range of sources, including congressional support agencies, local and national media outlets, specialized policy- oriented literature, and background material on legislative issues, among others. An important venue for congressional activities is the committee, through which much of the work of Congress is organized. Committees typically are the first place in which legislative policy proposals receive substantive consideration. Members of Congress are assigned to a number of committees and subcommittees simultaneously, and are expected to develop issue expertise in the policy areas that come before these panels. Typically, each Senator is assigned to three committees and at least eight subcommittees. With the exception of Members who serve on committees that their party has designated as exclusive, each Representative is typically assigned to two standing committees and four subcommittees. Committee members usually participate in hearings to question witnesses, and engage in mark-up sessions to draft, amend and refine the text of legislation, and to vote on whether to send specific measures to the floor of their chamber. Members also testify before other congressional committees on matters of interest to their district or state, or on matters in which the Member has developed expertise. In addition to these duties, Senate committee membership involves review of executive and judicial nominations and may include consideration of treaties. Some Members, generally those with more seniority, also participate in conference committees. Conference committees are convened to work out differences when the House and Senate pass dissimilar versions of the same bill. Members of conference committees participate in the final resolution of policy disputes, legislative-executive bargaining, and significant policy decisions.
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The last arena of legislative work is the chamber floor. Members generally participate in floor debate most fully when measures of importance to their home district or state are involved, or when matters reported from their legislative committees are under consideration. Floor activity might include preparing statements, conducting research to defend or deter provisions of a bill, and offering amendments. It may also mean debating other Members, in an effort to persuade the undecided, and engaging in extensive informal political negotiations to advance legislative goals.15
Constituency Service The constituency service role is closely related to the representative and educational roles of a Member of Congress. Frequently, when constituents or local firms or organizations need assistance from the federal government, they contact their Representative or Senators. Members then act as representatives, ombudsmen, or facilitators, and sometimes as advocates, in discussions with the federal government. The constituency service role may be highly varied, and involve several activities, provided to individual constituents, including • • • • •
outreach, in which Members introduce themselves and inform constituents of the services typically provided; gathering information on federal programs, casework, in which congressional staff members provide assistance in obtaining federal benefits or in solving constituents’ problems with agencies;16 providing nominations to Unites States service academies;17 and arranging visits or tours to the Capitol or other Washington, DC, venues.
Assistance on behalf of firms and organizations may involve providing letters and other communication in support of grant or other applications for federal benefits. The constituency service role also allows a Member the opportunity to see how government programs are working, and what problems may need to be addressed through legislation.18
Oversight and Investigation In addition to its legislative responsibilities, Congress is responsible for seeing that the laws are administered according to congressional intent. While some Members receive feedback on the success of public policies through constituency service and the experiences of constituents who seek casework assistance, most of the oversight and investigation duties of Members are carried out through committees. Committees and Members can review the actions taken and regulations formulated by departments and agencies through hearings, studies, and informal communication with agencies and those affected by a program or policy. Oversight and investigation can take several forms. In addition to casework activity, the process of authorizing and appropriating funds for executive branch departments and agencies in committee hearings also affords Members and committees the opportunity to review the
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adequacy of those agencies’ organization, operations, and programs. Investigatory hearings are often conducted in response to an emerging crisis or scandal. At various points in the oversight and investigative process of Congress, individual Members can participate in the proceedings, for example, by questioning executive branch leaders, or reporting the experiences constituents have had with particular programs or agencies.19
Advice and Consent (Senators only) The Constitution places upon the Senate, but not the House, the responsibility for confirming nominations of individuals for appointive federal office, federal judicial nominations, and to ratify treaties negotiated by the executive branch with foreign nations. Individual Senators typically participate in hearings to determine the suitability of candidates nominated for executive office and the adequacy of the provisions of treaties.20 Senators are also expected to participate in the floor debate on these matters.
Congressional Leadership Some Members of Congress hold leadership positions within their chamber. Leadership responsibilities include leading negotiations within the party to formulate party positions on legislative issues, mediating political conflicts among Members of the same party, persuading Members to join in voting coalitions, keeping count as voting blocs form, participating in decisions to set the legislative agenda for the chamber, and negotiating agreements on when to schedule, and how to consider, specific bills on the floor. Representatives and Senators may also hold the position of chairman or ranking minority member on a committee or subcommittee, and have responsibility, or participate in the process of, scheduling of that committee’s business and selecting the issues that will compose the committee or subcommittee’s agenda. Some Representatives and Senators also participate in a leadership capacity in their respective party caucus or conferences. Leadership duties may be carried out both by Members who hold formal leadership positions and those who do not. Issues on which individual Members have recently taken informal leadership roles include campaign finance reform, planning for the continuity of Congress, and lobbying and ethics reform.
Personal Office Management Members of Congress are supported by a personal office in which staff perform legislative research, prepare background and briefing material for the Member to study, provide constituency service, manage constituency correspondence, handle media relations, and perform administrative and clerical functions. Staff and office facilities are provided through funds appropriated annually, and allocated to Members according to the procedures of each chamber.21 The precise duties and tasks carried out in a Member office will vary with the Member’s personal preferences, which are typically informed by seniority, committee
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assignment, policy focus, district or state priorities, institutional leadership, and electoral considerations. Each Member is allocated public funds to maintain office payroll and expense accounts, and typically supervises work carried out in Washington, DC, and state or district offices.22 Every Representative is authorized to have up to 18 full-time and four half-time positions to assist them in their duties. A survey of congressional offices found that the average Representative employed 14 staffers.23 In the Senate, the number of authorized staff varies according to the population of the state a Senator represents. Senators from states with fewer than two million people average 31 employees, whereas Senators from states with more than 10 million people average 43 employees.24
Electoral and Political Activity An integral part of the work of Members of Congress, their reelection plans, is separate from their official congressional duties. For those Members of Congress running for reelection, activities may include organizing and maintaining a personal campaign staff, campaigning, and raising funds for reelection or election to another office. Members may also be significant political leaders of their party, as public spokespersons, and as fund raisers for themselves and other congressional candidates. At the state or district level, they may also aid and influence the candidacies of state and local government officials. In addition, some Members also hold leadership posts within their national political parties, such as serving on their party’s congressional campaign committee. House and Senate Rules mandate that with very limited exceptions, political and campaign activities must be conducted outside of federal facilities, including congressional offices.25
CONCLUSION With no formal or definitive requirements, each Member of Congress is free to define his or her own job and set his or her own priorities. Although elements of each of the roles described can be found among the duties performed by any Senator or Representative, the degree to which each is carried out differs among Members as they pursue the common goals of seeking reelection, building influence in Congress, and making good public policy. Each Member may also emphasize different duties during different stages of his or her career as other conditions of the Member’s situation change. For example, some may focus on outreach, constituent service, and other state or district activity. Others may focus on developing influence in their chamber by developing policy expertise or advancing specific legislation. No Member, however, is likely to focus on any one role or duty at the exclusion of another, because the extent to which a Member successfully manages all of those roles is the basis on which his or her constituents may judge the Member’s success.
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ENDNOTES 1
Art. I, Sec. 2 of the Constitution requires that a Member of the House of Representatives be at least 25 years old, a citizen of the United States for at least seven years, and a resident of the state from which they are elected at the time they are elected. Article I, Section 3 requires that a Senator be at least 30 years old, a citizen of the United States for at least nine years, and resident of the state from which they are elected at the time they are elected. 2 House Rule III, section (1); Senate Rule VI, paragraph (2) and Rule XII paragraph (1). 3 David R. Mayhew, America’s Congress: Actions in the Public Sphere, James Madison Through Newt Gingrich (New Haven, CT: Yale University Press, 2000), p. 9. 4 For general treatments of the work of Members of Congress, see Lee H. Hamilton, How Congress Works and Why You Should Care (Bloomington, IN: Indiana University Press, 2004); Roger H. Davidson and Walter J. Oleszek, Congress and its Members, 9th ed. (Washington: CQ Press, 2004), pp. 119-150; Steven S. Smith, The American Congress (Boston: Houghton Mifflin Company, 1995), pp. 94-102; Thomas E. Kavanagh, “The Two Arenas of Congress,” in Joseph Cooper and G. Calvin Mackenzie, eds., The House at Work (Austin: University of Texas Press, 1981), pp. 56-77; Lewis Anthony Dexter, “The Job of a Congressman,” in Raymond E. Wolfinger, ed. Readings on Congress (Englewood Cliffs, NJ: Prentice Hall, Inc., 1971), pp. 69-89; Roger H. Davidson, The Role of a Congressman (New York: Pegasus, 1969); Donald Tacheron and Morris K. Udall, The Job of the Congressman: An Introduction to Service in the U.S. House of Representatives (New York: The Bobbs-Merrill Company, Inc., 1966); Charles L. Clapp, The Congressman: His Work as He Sees It (Garden City, NY: Doubleday and Company, Inc., 1964); and Donald R. Matthews, U.S. Senators and Their World (New York: Vintage Books, 1960). 5 Gerald D. Sturges, “The Freshman Faces Congress,” in Sven Groennings and Jonathon P. Hawley, eds., To Be a Congressman: The Promise and the Power (Washington, DC: Acropolis Books, Ltd, 1973) p. 35. 6 See Davidson and Oleszek, Congress and its Members, pp. 140-145; Robert H. Salisbury and Kenneth A. Shepsle, “U.S. Congressman as Enterprise,” Legislative Studies Quarterly, vol. 6, November 1981, pp. 559-576; and Burdett A. Loomis, “The Congressional Office as a Small (?) Business: New Members Set Up Shop,” Publius, vol. 9, Summer 1979, pp. 35- 55. 7 See Gregory J. Wawro, Legislative Entrepreneurship in the U.S. House of Representatives (Ann Arbor, MI: University of Michigan Press, 2000); George Serra and David Moon, “Casework, Issue Positions, and Voting in Congressional Elections: A District Analysis,” The Journal of Politics, vol. 56, Feb., 1994, pp. 200-213; Gary W. Cox and Mathew D. McCubbins, Legislative Leviathan: Party Government in the House (Berkeley, CA: University of California Press, 1993); R. Douglas Arnold, The Logic of Congressional Action (New Haven, CT: Yale University Press, 1990); Morris P. Fiorina, Congress, Keystone of the Washington Establishment, 2nd ed. (New Haven, CT: Yale University Press, 1989); Bruce Cain, John Ferejohn, and Morris Fiorina, The Personal Vote: Constituency Service and Electoral Independence (Cambridge, MA: The Harvard University Press, 1987); Steven S. Smith and Christopher J. Deering, Committees in
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Congress (Washington: CQ Press, 1984), pp. 83-124; John R. Johannes, “Explaining Congressional Casework Styles,” American Journal of Political Science, vol. 27, Aug. 1983, pp. 530-547; John R. Johannes, “The Distribution of Casework in the U.S. Congress: An Uneven Burden,” Legislative Studies Quarterly, vol. 5, Nov., 1980, pp. 5 17-544; Glenn R. Parker, “Cycles in Congressional District Attention,” Journal of Politics, vol. 42, May, 1980, pp. 540-548; Richard F. Fenno, Home Style: House Members in Their Districts (New York: Harper Collins, 1978); David R. Mayhew, Congress: The Electoral Connection (New Haven, CT: Yale University Press, 1974); and Richard F. Fenno, Jr., Congressmen in Committees (Boston, MA: Little Brown and Company, 1973). 8 See U.S. Congress, House, Commission on Administrative Review, Final Report of the Commission on Administrative Review, 2 vols., H. Doc. 95-272, 95th Cong., 1st sess. (Washington: GPO, 1977). While these observations are somewhat dated, there has been no similar study conducted more recently. There appears to be no reason to believe that the roles have changed in the past three decades, although it is possible that the emphasis placed on each role may have shifted. 9 Findings are based on 146 responses by Members of the House to the question, “... what would you say are the major kinds of jobs, duties or functions you feel you are expected to perform as an individual Member of Congress?” 10 Percentages are based on 146 responses by Members of the House to the question, “... what would you say are the major kinds of jobs, duties or functions you feel you are expected to perform as an individual Member of Congress?” Many Members mentioned more than one job, duty, or function. 11 See John R. Hibbing and Elizabeth Theiss-Morse, “What the Public Dislikes About Congress,” in Lawrence C. Dodd, and Bruce Oppenheimer, Congress Reconsidered 8th ed. (Washington: CQ Press, 2005), pp.55-76; Roger H. Davidson, “Public Prescriptions for the Job of a Congressman,” Midwest Journal of Political Science, vol. 14, no. 4 (Nov. 1970) pp. 648-666. 12 This wide range is an artifact of the process for apportioning the 435 seats in the House among the 50 states. More information on that process is avalable in CRS Report RS20768, House Apportionment 2000: States Gaining, Losing, and on the Margin, by Royce Crocker. 13 Population totals are based on July 1, 2005 estimated population. See U.S. Census Bureau, Population, Population change and estimated components of population change: April 1, 2000 to July 1, 2005, Dec.2005, available at [http://www.census.gov/popest/ national/files/ NST_EST2005_ALLDATA.csv]. 14 See Lee Hamilton, “What I Wish Political Scientists Would Teach about Congress,” PS: Political Science & Politics, vol. 33, December 2000, pp. 757-759; Burdett Loomis, The Contemporary Congress (New York: St. Martins Press, 1996), pp. 6-10; and Randal B. Ripley, Congress: Process and Policy 3rd ed. (New York: W.W. Norton and Company, 1983), pp. 31-41. For a discussion of the trustee and delegate theories of representation, see Hannah Fenichel Pipkin, The Concept of Representation (Berkeley, CA: University of California Press, 1967); and Heinz Eulau, John C. Wahlke, William Buchanan, and Leroy C. Ferguson, “The Role of the Representative: Some Empirical Observations on the Theory of Edmund Burke,” American Political Science Review, vol. 53, Sept., 1959, pp. 742-756.
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Discussions of the debate and informal negotiating process in Congress can be found in Joseph Bessette, “Deliberation in American Lawmaking,” Philosophy and Public Policy, vol. 14, Winter/Spring 1994, pp.18-23. For a discussion of different types of deliberation and their use in the legislative process, see George E. Connor and Bruce I. Oppenheimer, “Deliberation: An Untimed Value in a Timed Game,” in Lawrence C. Dodd and Bruce I. Oppenheimer, eds., Congress Reconsidered, 5th ed. (Washington: CQ Press, 1993), pp. 3 15- 320. Also, see Lawrence C. Dodd, “Congress and the Politics of Renewal,” in Dodd and Oppenheimer, Congress Reconsidered, pp. 426-427. Representation and deliberation in congressional committees is discussed in Richard L. Hall, “Participation, Abdication and Representation in Congressional Committee,” in Dodd and Oppenheimer, Congress Reconsidered, pp. 161-188. 16 See John R. Johannes, “Casework in the House,” in Cooper and Mackenzie, The House at Work, pp.78-96. 17 See CRS Report RL33213, Congressional Nominations to U.S. Service Academies: An Overview and Resources for Outreach and Management, by R. Eric Petersen. 18 For more information on congressional casework, see CRS Report RL33209, Casework in a Congressional Office: Background, Rules, Laws, and Resources, by R. Eric Petersen. 19 For more information on congressional oversight, see CRS Report RL30240, Congressional Oversight Manual, by Louis Fisher, Frederick M. Kaiser, Walter J. Oleszek, and Morton Rosenberg. 20 In addition, Senators on the appropriate committees are sometimes asked to “advise” on the terms of a treaty as it is being negotiated. They do so by consulting with executive branch officials, and by observing, and sometimes participating in, the treaty negotiations in progress between the U.S. and foreign delegations. 21 See CRS Report RL30064, Congressional Salaries and Allowances, by Paul Dwyer. 22 See Steven S. Smith, The American Congress, pp.102-11 1; Susan Webb Hammond, “The Management of Legislative Offices,” in Cooper and Mackenzie, The House at Work, pp. 183-209; and David W. Brady, “Personnel Management in the House,” Ibid., pp. 15 1182. 23 Congressional Management Foundation, 2000 House Staff Employment Study, p. 4. 24 Congressional Management Foundation, 2001 Senate Staff Employment Study, p. 3. 25 U.S. House Cmmittee on Standards of Offical Conduct, Campaign Booklet, available at [http://www.house.gov/ethics/Campaign_booklet.htm#_Toc5289930 14]; and U.S. Senate, Committee on Ethics, Campaign-Related Questions: Quick Reference, available at [http://ethics.senate.gov/downloads/pdffiles/campaign.pdf].
In: Congress of the U.S: Commitees, Rules and Procedures ISBN 978-1-60456-416-7 Editor: Sela G. Thomason © 2009 Nova Science Publishers, Inc.
Chapter 14
“NO CONFIDENCE” VOTES AND OTHER FORMS OF CONGRESSIONAL CENSURE OF PUBLIC OFFICIALS* Jack Maskell and Richard S. Beth SUMMARY S.J.Res. 14 of the 1 10th Congress, submitted on May 24, 2007, has been described as proposing a vote of no confidence in Attorney General Alberto Gonzales. This chapter discusses the possible significance of action by Congress or either House to adopt a resolution expressing “no confidence” in a cabinet official or other official in the executive branch of the federal government. It examines the legal issues that could be raised by resolutions of this kind and discusses the relation of such action both to votes of no confidence in systems of parliamentary government and to congressional action to censure or otherwise express disapprobation of public officials. It also describes known instances in which action to express a lack of confidence in, or impose another form of censure on, public officials have been attempted in Congress. S.J.Res. 14 of the 1 10th Congress, submitted on May 24, 2007, has been described as proposing a vote of no confidence in Attorney General Alberto Gonzales. This chapter discusses the possible significance of action by Congress or either House to adopt a resolution expressing “no confidence” in a cabinet official or other official in the executive branch of the federal government. It examines the legal issues that could be raised by resolutions of this kind and discusses the relation of such action both to votes of no confidence in systems of parliamentary government and to congressional action to censure or otherwise express disapprobation of public officials. It also describes known instances in which action to express a lack of confidence in, or impose another form of censure on, public officials have been attempted in Congress.
* This is an edited, excerpted and augmented edition of a CRS Report for Congress publication, Order Code RL34037, dated June 11, 2007.
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“NO CONFIDENCE” VOTES IN A SYSTEM OF SEPARATED POWERS The use of the term “vote of no confidence” to reflect a Senate, House or joint congressional action on a resolution concerning an official of the executive branch might be somewhat misleading because of the particular nature and impact of “no confidence” votes in parliamentary democracies. A vote of no confidence has a technical meaning and concrete consequences only in a parliamentary form of government, in which the continuance of the executive in office is dependent on its maintaining majority support in the parliament (or one house thereof). The American system of separated powers, on the other hand, makes no provision for votes of no confidence in the parliamentary sense. Except through the process of impeachment, accordingly, no action by the Congress (or of either House) can have any practical effect similar to that of a parliamentary vote of no confidence. For example, votes of “no confidence” or “votes of censure” in the British Parliament,1 are votes instituted in Parliament by the opposition party which, if they succeed, indicate that the Government no longer has the support of the majority of Parliament (including the Government’s own party members), and thus lead to a dissolution of the Government and new elections.2 Under the U.S. system of government, with the constitutional scheme of separated powers, the legislature — Congress — does not impact directly the removal of officials in the executive branch of the Federal Government (other than through impeachments). Adoption of a resolution expressing a lack of confidence could have symbolic effects as an expression of the sense of Congress (or of either House). A vote expressing “no confidence” of the Senate or the House in a particular official of the government, while it may certainly have political implications, would have no specific legal import.
PROPRIETY OF CONGRESSIONAL CENSURE OF PUBLIC OFFICIALS The issue of the propriety and the authority of Congress or of either House of Congress to officially express an opinion concerning an executive branch officer, such as an opinion that the President should remove an official, or that a cabinet official should resign, or to otherwise formally reprimand, “censure,” or express disapprobation or loss of confidence concerning an executive official has been debated and questioned from time to time in the House and the Senate.3 In early congressional considerations some Members of Congress, in their opposition to resolutions which declared either an opinion of praise or disapproval of the executive, cited the lack of an express constitutional grant of authority for the House or the Senate to state an opinion on the conduct or propriety of an executive officer in the form of a formal resolution of censure or disapproval.4 Others have argued, including during the more recent consideration of the impeachment of President Clinton, that impeachment was the proper, and exclusive, constitutional response for Congress to entertain when the conduct of federal civil officers is called into question, rather than a resolution of censure.5 Concerning judicial officers, precedents indicate that the House has on occasion either rejected or not dealt with attempts to consider a “censure” motion of federal judges offered by the Judiciary Committee as an alternative to articles of impeachment, and parliamentarians have noted an
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apparent disinclination of the House to consider censure as part of the impeachment procedure.6 It has, however, become accepted congressional practice to employ a simple resolution of one House of Congress, or a concurrent resolution by both Houses, for certain non-legislative matters, such as to express the opinion or the sense of the Congress or of one House of Congress on a public matter, and a resolution expressing an opinion of “no confidence” in, or other expression of censure or disapproval of an executive branch official within a concurrent or simple resolution would appear to be in the nature of such a “sense of Congress” or “sense of the Senate” (or House) resolution.7 The absence of express constitutional language that the Congress, or the House or the Senate individually, may state its opinion on matters of public import in a resolution of praise or censure is not necessarily indicative of a lack of capacity to do so, or that such practice is per se unconstitutional. It is recognized in both constitutional law and governmental theory that there are, of course, a number of functions and activities of Congress which are not expressly stated or provided in the Constitution, but which are nonetheless valid as either inherent or implied components of the legislative process or of other express provisions in the Constitution, or are considered to be within the internal authority of democratic legislative institutions and elective deliberative bodies generally.8 The practice of the House, Senate, or Congress to express facts or opinion in simple or concurrent resolutions has been recognized since its earliest days as an inherent authority of the Congress and of democratic legislative institutions generally, and the adoption of “sense of” the House or Senate resolutions on various subjects and in reference to various people, is practiced with some frequency in every Congress.9
Relation to other Forms of Congressional Action The resolutions or statements both the House and the Senate have adopted in the past concerning a Government official, other than a Member of Congress, have expressed disapproval, censure, or opinion that an officer should be removed, Such an expression of opinion, censure, disapproval or lack of confidence in or of a federal officer by the House, the Senate, or the Congress is not an “impeachment” of that civil officer under Article I, Section 2, clause 5 and Section 3, clause 6 of the Constitution;10 nor is it a “punishment” of one of the House’s or Senate’s own Members under Article I, Section 5, clause 2. Furthermore, a censure or vote of no confidence would also not, in most cases, be within those inherent or implicit authorities, in the nature of contempt, typically imputed to democratic legislative assemblies to protect the dignity and integrity of the institution, its members and proceedings.11 Finally, because there is no legal consequence to a resolution expressing an opinion of the Senate or the House, and because such expression in a simple resolution does not appear to technically be a “bill” referred to in the constitutional prohibition on “bills of attainder,” it is unlikely that such an expression would violate that constitutional restriction on Congress.12
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CHARACTERISTICS OF RESOLUTIONS PROPOSED SINCE 1973 These resolutions, expressing the disapproval of Congress (or of either house) with an official of the executive branch, have in the past sometimes been submitted, and occasionally adopted.13 For recent years, it has been possible to identify resolutions of this kind systematically through a search of the Legislative Information System of the Congress (LIS), which includes a database of introduced measures extending back to the 93rd Congress (19731974). An initial search identified simple and concurrent resolutions described with any form of the terms “confidence,” “censure,” or “condemnation.” On the basis of information independently acquired about resolutions offered in the early 1 950s against Secretary of State Dean Acheson, the search was also was extended to include simple and concurrent resolutions described with any form of the term “resignation.” From among the measures identified by these searches, those relating to federal officials other than Members of Congress were selected.14 These searches together yielded 31 resolutions submitted from the 93rd through 109th Congresses (1973-2006) and directed against federal officials. Information about the subject and form of these 31 measures is presented in Appendix 1.
Terms of Disapprobation Used It appears that such resolutions have been stated not usually in terms of no confidence, but more often in terms of censure or condemnation, or as calls for resignation. Of the 31 resolutions identified by the search, 13 expressed censure of the official, condemnation of the official or his or her actions, or both. The remaining 18 resolutions called either for the official in question to resign or for the President to request resignation, making this form of disapproval the most common among measures identified from recent times. Only one of the 31 resolutions referred explicitly to a loss of confidence, and this language was contained only in the preamble of a resolution that also called for resignation. Although the term “no confidence” was not necessarily expressly stated in nearly all of these resolutions, however, such opinion was obviously implied by the actual wording of a number of the resolutions. Previous to S.J.Res. 14, nevertheless, no resolution known in recent times has stated only a loss of confidence, unaccompanied by reference to any other form of disapprobation. The use solely of this language might suggest a lack of awareness that the reference to a loss of confidence, in the American context, lacks any distinctive or special force not shared by other terms in which resolutions with similar prospective effects have been couched. The use of “no confidence” language would not suffice actually to endow the proposal uniquely with any such distinctive or special force.
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Preambles Most of the resolutions identified that were submitted in or after 1973 have included a preamble stating the reasons for the congressional disapproval. Of the total of 31, just three lacked such a preamble. The current S .J.Res. 14, which also lacks a preamble, accordingly represents a less common variation.
Inclusion of “Sense” Language Similarly, 16 of the 31 resolutions identified by electronic search explicitly declared themselves to be statements of the sense of the Congress or of the house acting (usually in those terms, though a few refer instead to the “sentiment” or “judgment” of Congress or either house). This form of language again appears consistent with an understanding that any such measure could have symbolic, rather than determinative, effects. This language appears to have been included in measures of this kind less frequently since 1996 (105th Congress), but is adopted by S.J.Res. 14.
Form of Measure All 31 of the resolutions identified through the electronic search were either concurrent resolutions or simple resolutions of one house. No search was conducted for joint resolutions, because of the inappropriateness of this form of measure to the kind of action possible in the American system. For this reason, no conclusion can be offered about whether any earlier measures to express disapproval of a federal official have taken the form of a joint resolution. Use of simple and concurrent resolutions suggests awareness that adoption of such a measure would have no imperative force parallel to that of a vote of no confidence in a parliamentary system. By contrast, even though the language of S.J.Res. 14 explicitly disavows any mandatory intent, by stating itself as an expression of the sense of the Senate, the measure is couched as a joint resolution. Joint resolutions are normally lawmaking vehicles, and require passage by both chambers and presentation to the President. It is not clear what proponents intend by submitting the measure in this form, which would have the effect of affording the House of Representatives and the President a role in stating what the sense of the Senate is. It is conceivable that the use of this form of measure in the current case implicitly indicates an intent to achieve effects resembling those of an actual vote of no confidence.
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Legislative Action Congress did not finally adopt any of the 31 resolutions identified in the present search, and on none but two did any floor action occur at all. In 1997 (105th Congress), the House adopted H.Con.Res. 197, declaring that Sara A. Lister, Assistant Secretary of the Army for Manpower and Reserve Affairs, should resign or be removed. In 1999 (106th Congress), the Senate rejected an attempt to bring to the floor S.Res. 44, censuring President Clinton.
EXAMPLES OF EARLIER RESOLUTIONS No feasible means appeared of comprehensively identifying similar measures for the period preceding the availability of electronically searchable data. In the historical period before that covered by the LIS database, nevertheless, several instances are known in which the House or the Senate expressed a specific opinion disapproving of conduct of an executive official, or suggesting that a particular executive officer resign or be removed by the President.15 The instances discussed in this section constitute only examples of congressional actions; they are known not to compose a comprehensive list of all resolutions to censure executive (and judicial) officials that may have been adopted or considered by either House. Accordingly, available information can permit no definite assertion whether a vote of no confidence fully similar to that proposed by S.J.Res. 14 has ever previously occurred in American history. It might be considered unlikely, however, that resolutions critical of officials during earlier periods of history would have been couched solely in terms of “no confidence,” because proponents would likely have understood that these terms have a technical meaning only in a parliamentary system of government.
Censure and Condemnation The earliest attempt to censure an official found thus far concerned a series of resolutions proposing the censure and disapproval of Secretary Alexander Hamilton in 1793, the texts of which were considered by historians to have been drafted by Thomas Jefferson for introduction by Representative William Branch Giles of Virginia.16 In 1860, the House of Representatives adopted a resolution stating that the conduct of the President, and his Secretary of the Navy, was deserving of its “reproof,” in a matter concerning the alleged conduct of President Buchanan and his Secretary of the Navy in allowing political considerations and alleged campaign contribution “kickbacks” to influence the letting of Government contracts to political supporters, rather than the lowest bidder.17 After debating both the substance of the charges and the authority of the House to adopt such a resolution, characterized by one Member as “censur[ing] indiscriminately the President of the United States and the Secretary of Navy,”18 the House adopted the resolution 106-61.19 The Senate adopted a resolution in 1886 in which it expressed its “condemnation” of President Cleveland’s Attorney General A.H. Garland concerning his refusal to provide
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certain records and papers to the Senate about the removal from office of a district attorney by the President.20 In 1896, the House adopted a resolution where it found that a United States Ambassador, by his speech and conduct “has committed an offense against diplomatic propriety and an abuse of the privileges of his exalted position,” and therefore, “as the immediate representatives of the American people, and in their names, we condemn and censure the said utterances of Thomas F. Bayard.”21
Resignation and no Confidence Some congressional resolutions over the years have merely found misconduct on the part of an executive officer and urged the President to seek the officer’s resignation, without expressing a specific term of censure or condemnation, or a specific expression of loss of “confidence.” For example, after having conducted investigations into the conduct of the administration of the New York custom-house by Mr. Henry Smyth, and finding that “there is not sufficient time prior” to adjournment to finish the matter, the House expressed in a resolution “Henry A. Smyth’s unfitness to hold the office,” and recommended that he “should be removed from the office of collector.”22 Similarly, the Senate in 1924, during the Teapot Dome investigation passed a resolution indicating its sense that the President “immediately request the resignation” of the Secretary of Navy.23 In the 81st and 82nd Congresses (1949-1952), six resolutions were submitted containing demands for the resignation of Secretary of State Dean Acheson, and one seeking that of Secretary of Defense George C. Marshall. All of these resolutions, unlike many more recent measures, lacked preambles setting forth the reasons for the action. These measures provide one of the few earlier instances known that were described as proposing votes of no confidence in the respective officials. Three of the seven resolutions explicitly stated a popular loss of confidence along with (but not instead of) the calls for resignation (although one, like the 1983 instance discussed earlier, did so only in the preamble). Several of these resolutions, apparently including those whose text did not contain this explicit phrase, were also described, in public discussion, as declarations of no confidence. Finally, during the same time period, a loss of public confidence in Secretary Acheson was declared by votes of the Republican Conference in at least one chamber. These events illustrate that a resolution may be described as a “no confidence” measure without having the characteristics that would make it equivalent to an actual vote of no confidence in a parliamentary system.
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CONCLUDING OBSERVATIONS Although there has been discussion in both Houses of Congress of the appropriateness of such actions, resolutions have been introduced and considered in each House of Congress in the past, and on occasion have been adopted, wherein the House or the Senate has expressed the “sense” of the institution that an official in the executive branch has engaged in conduct worthy of censure, condemnation, or other expression of disapprobation; should resign or be removed by the President; and, in a few circumstances, expressly stating in the preamble or the operative portion of the resolution that the public or the particular House of Congress has lost “confidence” in the official. Such actions and proposals would appear to be in the nature of “sense of Congress” or “sense of the Senate” (or House) resolutions in which it has been the practice for the Senate or the House to address certain non-legislative matters, such as to express the opinion or the sense of Congress or of one House of Congress on a public matter.24 Aside from obvious symbolic, political or publicity implications, there are no specific legal consequences in the passage of such a resolution, nor is there any legal significance or consequence for the Senate or the House to choose one phrase of disapprobation or condemnation over another, or to include or not to include the concept or expression of a loss of “confidence” in an official. Several features of S.J.Res. 14 seem to make explicit its difference from an actual “vote of no confidence” such as could occur in a parliamentary system, but others suggest a failure to take account of that difference. To the extent that the resolution purports to present a proposition functionally similar to a vote of no confidence in a parliamentary system, present knowledge does not permit identifying any similar proposition as having been offered in the past. On the other hand, to the extent that the present resolution purports to present such a proposition, it cannot, under the American constitutional system, succeed in doing so. Instead, the proposition actually presented by the resolution can only be that of expressing congressional disapproval of a federal official, and in that general respect the resolution is not dissimilar from a number of others that have been offered, from time to time, throughout American history.
APPENDIX. CONGRESSIONAL RESOLUTIONS EXPRESSING DISAPPROBATION OF EXECUTIVE BRANCH OFFICIALS, 1973-2006 Congress
Measure number and date of introduction H.Con.Res. 371 10/20/1973
Official
93
H.Con.Res. 365 10/23/1973
President Richard M. Nixon
93
S.Res. 191 10/23/1973
Solicitor General (Acting Attorney General) Robert Bork
93
H.Con.Res. 376 11/7/1973
President Richard M. Nixon
93
H.Res. 684 11/6/1973
President Richard M. Nixon
93
H.Res. 734 12/4/197 3
President Richard M. Nixon
93
H.Res. 1288 8/4/1974
President Richard M. Nixon
93
Framing Loss of Confidence
President Richard M. Nixon
Provisions on Resignation
Preamble; sense of Congress Preamble; sense of Congress Preamble
Preamble; sense of Congress Preamble; Judgment of House Preamble; Judgment of House Preamble
Censure Censure
Censure, condemn
Notes and (in italics) Floor Action Each resolution also states that this action carries no prejudice to impeachment
In title: censure; in body: condemn Should resign
Should resign
Identical resolutions also ask that Nixon first nominate someone other than Gerald Ford to be Vice President
Should resign
Censure
APPENDIX. CONTINUED Congress
93
96
Measure number and date of introduction H.Con.Res. 589 8/6/1974
Framing
President Richard M. Nixon
Preamble; sense of Congress
97
H.Con.Res. 247 1/26/1982
Secretary of Energy James Schlesinger Secretary of Energy James Schlesinger Environmental Protection Agency Director Anne Gorsuch Federal Reserve Board Chairman Paul Volcker
98
H.Res. 321 9/28/1983 H.Res. 324 9/29/1983
Secretary of the Interior James Watt Secretary of the Interior James Watt
H.Con.Res. 249 2/2/1984
Secretary of Defense Caspar Weinberger
96 97
98
98
H.Con.Res. 146 6/26/1979 H.Con.Res. 161 7/12/1979 H.Con.Res. 242 12/16/1981
Official
Provisions on
Notes and (in italics) Floor Action Censure
Should resign Preamble
Should resign
Preamble; sense of Congress Preamble; sense of Congress Sense of House Preamble; sense of House Sense of Congress
Should resign
Should resign
in preamble: people lost
President should ask President should ask Should resign
Also sense of Congress that if Nixon resigns, impeachment not be pursued
103
H.Res. 545 9/23/1994
Surgeon General Jocelyn Elders
103
H.Con.Res. 297 9/26/1994
Surgeon General Jocelyn Elders
104
H.Res. 283 11/28/1995
Secretary of Energy Hazel O’Leary
104
H.Res. 308 12/15/1995
Secretary of Energy Hazel O’Leary
105
H.Con.Res. 197 11/13/1997
105
H.Res. 531
106
9/11/1998 S.Res. 44 2/12/1999
Assistant Secretary of the Army for Manpower and Reserve Affairs Sara E. Lister President William Jefferson Clinton President William Jefferson Clinton
106 108
H.Res. 416 2/7/2000 H.Res. 419 10/28/2003
U.S. District Judge Alan McDonald Deputy Undersecretary of Defense Lieutenant General William Boykin
Preamble; sense of House Preamble; sense of Congress Preamble; sense of House Preamble; sense of Congress Preamble
Preamble
President should ask President should ask President should ask
Also provisions on reimbursement
President should ask
Also provisions on investigation and reimbursement House adopted, 1 1/1 3/1997
Should resign or be removed
House calls upon to resign
Preamble
Censure; condemn conduct
Preamble
Condemn conduct President should censure
Preamble
Senate rejected attempt to bring to floor, 2/1 2/1 999
APPENDIX. CONTINUED Congress
108
108 109
109
109 109 109
Measure number and date of introduction H.Res. 420 1 0/28/2003
H.Con.Res. 323 11/7/2003 H.Con.Res. 470 9/13/2006 S.Res. 262 9/30/2005 H.Res. 636 12/18/2005 H.Res. 637 12/18/2005 S.Res. 398 3/13/2006
Official
Framing
Deputy Undersecretary of Defense Lieutenant General William Boykin Secretary of Defense Donald Rumsfeld Secretary of Defense Donald Rumsfeld
Preamble
Former Secretary of Education William J. Bennett President George W. Bush Vice President Richard B. Cheney President George W. Bush
Preamble Preamble; sense of Congress Preamble
Provisions on
Notes and (in italics) Floor Action Condemn rhetoric
President should ask effect resignation
“Replace” in title; not found by search Condemn
Preamble
statement Censure
Preamble
Censure
Preamble
Censure; condemn actions
“No Confidence” Votes and other Forms of Congressional Censure ...
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ENDNOTES 1
2
3
4
5
6
7
Although the phrase “vote of no confidence” is generally used in the United States to describe the process, in England, the completed vote on a motion introduced by the opposition is referred to as a “vote of censure.” Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, Twenty-second edition (Sir Donald Limon and W.R. McKay, editors), at pp. 280-281 (1997). See William Safire, Safire ’s Political Dictionary, at 768 (1978): “[I]f a motion of no confidence is introduced by the opposition in the House of Commons and passes, the result is called a vote of censure (although it contains the words “no confidence,” it is not referred to as a vote of no confidence, except in America); in that case, the government is ‘upset’ or ‘falls,’ and an election is called.” II Hinds’ Precedents of the House of Representatives [Hinds’ Precedents], § 1569, p. 1029 (1907): “While the House in some cases has bestowed praise or censure on the President or a member of his Cabinet, such action has at other times been held to be improper.” II Hinds’ Precedents, at § 1569, pp. 1029-1030: “It was objected that the Constitution did not include such expressions of opinion among the duties of the House ... .” (Citing debate and vote on a resolution of approval of the President’s conduct, which was laid on the table, 20 Annals of the Congress, 11th Cong., 2nd Sess., at 92 -118, 134-151, 156-161, 164-182, 187-217, 219 (1809)). Note discussion of a House resolution in 1867 expressing opinion on the unfitness for the office of Mr. Henry Smyth (II Hinds’ Precedents, at § 1581, pp. 1035-1036), and a 1924 Senate resolution indicating its sense that the President “immediately request the resignation” of the Secretary of Navy. 65 Congressional Record, 68th Cong., 1st Sess., 2223- 2245 (1924). Both of these resolutions were objected to by some Members as interfering with the President’s prerogatives in appointments and removals of executive officials, and the latter action as labeling with a “brand of shame” an individual in the Government without conducting impeachment proceedings. See discussion in Fisher, “Congress and the Removal Power,” in Congress & the Presidency, Volume 10, at 67-68 (1983). Concerning the impeachment of President Clinton, see discussions in “Censure Option Losing Support in House,” The Hill, September 16, 1998; “Senators Exploring a Form of Censure Are Bumping Into Obstacles,” Washington Post, January 2, 1999. The censure of U.S. District Court Judge Harold Louderback, recommended in a Judiciary Committee report in 1933 instead of impeachment, was objected to, for example, by Rep. Earl Michener of Michigan, who explained: “I do not believe that the constitutional power of impeachment includes censure.” The recommendation was not approved, and the House adopted as a substitute an amendment impeaching the judge. 3 Deschler’s Precedents of the U.S. House of Representatives [Deschler’s Precedents], Ch. 14, §1.3, p. 400 (1977). In other instances recommendations of censure of judges, as alternatives to impeachment, were made by the Judiciary Committee, but not acted on by the House. Id. at 400-401; III Hind’s Precedents, supra at §§ 2519, 2520. “Simple resolutions are used in dealing with nonlegislative matters such as expressing opinions or facts... . Except as specifically provided by law, they have no legal effect, and require no action by the other House. Containing no legislative provisions, they are not presented to the President of the United States for his approval, as in the case of bills and
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joint resolutions.” 7 Deschler’s Precedents, Ch. 24, § 6. “[Concurrent resolutions] are not used in the adoption of general legislation. ... [They] are used in ... expressing the sense of Congress on propositions... . A concurrent resolution does not involve an exercise of the legislative power under article I of the Constitution in which the President must participate.” Id. at § 5. Brown, House Practice, 108th Congress, 1st Sess., at 168: “Simple or concurrent resolutions are used ... to express facts or opinions, or to dispose of some other nonlegislative matter.” See also Riddick & Frumin, Riddick’s Senate Procedure, 1202 (1992). 8 The most common example of inherent or implied authority of Congress is the oversight and investigatory authority of either House, including the power to compel attendance of witnesses and production of documents. Such authority is not expressly provided in the Constitution, but the ability to collect facts and opinions, and to publish such opinions and facts, are considered inherent in the authority to legislate. McGrain v. Daugherty, 272 U.S. 135 (1927); Watkins v. United States, 354 U.S. 178, 187, 200 (1957). 9 See note 9, supra; Cushing, at 314. In the 105th Congress, for example, the House unanimously adopted a resolution to “condemn” as a “racist act” the alleged actions of three expressly named individuals in Texas who were arrested in connection with what is reported as a racially motivated homicide (H.Res. 466, 105th Cong ). 10 See 3 Deschler’s Precedents, Ch. 14, § 1. 11 As to inherent contempt authority, see Anderson v. Dunn, 19 U.S. 204 (1821). Note, generally, Cushing, Elements of the Law and Practice of Legislative Assemblies in the United States of America [Cushing], 245-255, 255-272 (1856). Since such action does not bear upon the proceedings and privileges of the House, and is not part of impeachment, such a resolution would generally not be considered to be a privileged resolution. See 3 Deschler’s Precedents, Chapter 14, § 1, p. 401. 12 Article I, Section 9, clause 3. See Nixon v. Administrator of General Services, 433 U.S. 425, 468 (1977); note definition of “bill” in 7 Deschler’s Precedents, Ch. 24, § 2. For a discussion of these legal issues, and separation of powers considerations, see CRS Report 98-843, “Censure of the President by the Congress,” by Jack Maskell. 13 For examples, see archived CRS Report 98-983 GOV, Censure of Executive and Judicial Branch Officials: Past Congressional Proceedings, by Richard S. Beth (available from the author). 14 One of the resolutions included proposes to censure a former official for acts subsequent to leaving office; it was included in the analysis on the principle that borderline cases were better taken into consideration than ignored. 15 The examples discussed in the section on “Censure and Condemnation” are drawn from CRS Report 98-983, “Censure of Executive and Judicial Branch Officials: Past Congressional Proceedings,” by Richard S. Beth (archived, available from the author). 16 Sheridan, Eugene R., “Thomas Jefferson and the Giles Resolutions,” William and Mary Quarterly, Third Series, Volume 49, Issue 4, at 589-608 (October 1992). The resolutions did not pass. 17 “Resolved, That the President and Secretary of the Navy, by receiving and considering the party relations of bidders for contracts with the United States, and the effect of awarding contracts upon pending elections, have set an example dangerous to the public safety, and deserving the reproof of this House.” Congressional Globe, 36th Congress, 1st Sess., 2951 (June 13, 1860).
“No Confidence” Votes and other Forms of Congressional Censure ... 18
297
Id. at 2951. (Mr. Clark of Missouri). Id., at 2951. 20 17 Congressional Record, 49th Cong., 1st Sess., pp. 1584-159 1, 2784-28 10 (March 26, 1886): “Resolved, That the Senate hereby expresses its condemnation of the refusal of the Attorney-General, under whatever influence, to send to the Senate copies of papers called for by its resolution of the 25th of January, and set forth in the report of the Committee on the Judiciary, is in violation of his official duty and subversive of the fundamental principles of the Government and of a good administration thereof.” 21 28 Congressional Record, 54th Cong., 1st Sess., p. 3034 (March 20, 1896). 22 Congressional Globe, 40th Cong., 1st Sess., pp. 255-256, 282-285, 394-395 (1867). 23 65 Congressional Record, 68th Cong., 1st Sess., 2223-2245 (February 11, 1924). 19
In: Congress of the U.S: Commitees, Rules and Procedures ISBN 978-1-60456-416-7 Editor: Sela G. Thomason © 2009 Nova Science Publishers, Inc.
Chapter 15
CONGRESSIONAL SALARIES AND ALLOWANCES* Ida A. Brudnick SUMMARY This chapter provides basic information on congressional salaries and allowances. First, the chapter briefly summarizes the current salary of Members of Congress, limits on their outside earned income and honoraria, and applicable health insurance and retirement benefits. Second, the chapter provides information on allowances available to Representatives and Senators to support them in their official and representational duties as Members. Their allowances include those for official office expenses, staff, mail, and other allowances and services. Third, the chapter lists the salaries of congressional officers and officials and committee staff. Sources are hearings, reports, debates, and language of regular annual and supplemental legislative branch appropriations acts; the U.S. Code and U.S. Code Annotated Supplements to Title 2; latest available Order of the Speaker of the House of Representatives, implementing a pay increase for House employees, effective January 1, 2006, issued December 18, 2005 (to be contained in 2 U.S.C. 60a-2a, and currently available at [http://uscode.house.gov]); latest publicly available Order of the President pro tempore, implementing a pay increase for Senate employees, issued January 4, 2006 (to be contained in 2 U.S.C. 60a-1,and currently available at [http://uscode.house.gov]); the Members’ Congressional Handbook (web edition), prepared by the Committee on House Administration, for Members and staff of the U.S. House of Representatives, available at [http://cha.house.gov/index.php?option =com_content& task=view&id=49&Itemid=37]; the quarterly Statement of Disbursements of the House, compiled by the House Chief Administrative Officer, April 1, 2007, to June 30, 2007 (110th Congress, 1st session, H.Doc. 110-52, part 3 of 3, pp. 342 1-3435); and the Office of Personnel Management for executive level pay rates to which some legislative employees are statutorily linked. *
This is an edited, excerpted and augmented edition of a CRS Report for Congress publication, Order Code RL30064, dated August 30, 2007.
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COMPENSATION OF MEMBERS OF CONGRESS 1 AND RELATED BENEFITS Compensation Compensation is $165,200 per annum for Representatives and Senators.
Outside Earned Income and Honoraria Limits Permissible outside earned income for Representatives and Senators is limited to 15% of their salary.2 Certain types of outside earned income however are prohibited.3 A Member may not receive compensation for affiliating with or being employed by a firm, partnership, association, corporation, or other entity providing professional services involving a fiduciary relationship; allowing his/her name to be used by such a firm, partnership, association, corporation, or other entity; practicing a profession involving a fiduciary relationship; serving as a member or officer of the board of an association, corporation, or other entity; and teaching without prior notification to and approval of the Senate Select Committee on Ethics, in the case of Senators, or the House Committee on Standards of Official Conduct, in the case of Representatives. Representatives and Senators are also prohibited from accepting honoraria. The acceptance of honoraria was prohibited by Senators effective August 14, 1991. Senators who earned honoraria prior to that date were entitled to retain their earnings.
Tax Deductions Members are allowed to deduct, for income tax purposes, living expenses up to $3,000 per annum, while away from their congressional districts or home states.4
Health and Life Insurance Provisions Health Insurance Members are eligible to participate in the Federal Employees Health Benefits Program and may select from among several health benefit plans. Participation is on a voluntary, contributory basis. Life Insurance Members are eligible to participate in the Federal Employees Group Life Insurance Program. The amount of coverage for personal insurance is determined by a formula based on the coverage elected.
Congressional Salaries and Allowances
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Retirement Provisions Various options are available to Members regarding participation in the Civil Service Retirement System and the Federal Employees Retirement System. Participation in Social Security is mandatory for Members.5
PERSONNEL, OFFICE EXPENSES, AND MAIL ALLOWANCES FOR U.S. REPRESENTATIVES House Allowance System Representatives have one allowance available to support them in their official and representational duties to the districts from which they were elected. This allowance is the Members’ representational allowance, comprising three individual allowances, each of which has a separate authorized dollar limit. The three allowances are personnel, official office expenses, and official (franked) mail. The personnel allowance component is the same for each Member. The office expenses and mail allowances components vary from Member to Member due to variations in the distance between a Member’s district and Washington, DC, for the mileage allowance, cost of office space in his or her district for the space allowance, and number of non-business addresses in his or her district for the mail allowance. In calendar year 2007, the Members’ representational allowances range from $1,262,065 to $1,600,539.6 Appropriations allocated for each allowance can be used to pay expenses from any of the three allowances. Allowances are authorized from January 3 of each year through January 2 of the following year. These allowances are authorized in statute and are regulated and adjusted by the Committee on House Administration. Funding is provided under a single appropriations heading, “Members’ Representational Allowances,” within the House account “Salaries and Expenses.” All personnel, office, and official mail expenses reimbursed to or on behalf of a Member are reported in the quarterly Statement of Disbursements of the House.
Personnel Allowance The personnel allowance is available for employment of staff in a Representative’s Washington, DC, and district offices. Each Member was entitled to an annual personnel allowance of $831,252 in 2007 for no more than 18 permanent employees.7 As many as four additional employees may be designated by the Member, but need not be counted as permanent employees, if they fall into one of the following categories: (1) part-time employees;
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Ida A. Brudnick (2) employees drawing compensation from more than one employing authority of the House; (3) interns receiving pay; (4) employees on leave without pay; and (5) temporary employees.
Pursuant to a Pay Order issued for 2006, employees’ salaries are set at annual rates of not more than $159,828.8
Official Office Expenses Allowance The official office expenses allowance is available to pay ordinary and necessary business expenses incurred in support of official and representational duties to the district from which a Member has been elected. A base allowance of $194,980 was authorized for each Member in 2007.9 There are two allowances in addition to the base allowance: (1) a sum for travel based on the following formula: 64 times the rate per mile (see table below) multiplied by the mileage between Washington, DC, and the furthest point in a Member’s district,10 plus 10%. The rate per mile used to calculate the 2007 allowance was as follows: Mileage Between Washington, DC, and the Furthest Point in a Member’s District Fewer than 500 miles 500 to 749 miles 750 to 999 miles 1,000 to 1,749 miles 1,750 to 2,249 miles 2,250 to 2,499 miles 2,500 to 2,999 miles 3,000 miles or more
Rate Per Mile $ .96 .86 .66 .60 .51 .48 .43 .36
The minimum mileage amount is $6,200 for a Member. (2) the dollar equivalent to 2,500 square feet multiplied by the applicable rental rate per square foot charged federal agencies by the administrator of the General Services Administration in a Member’s district. The official office expenses allowance may be used for travel, office equipment lease, district office rental, stationery (paper, envelopes, and other supplies), telecommunications, printing, postage, computer services, and other expenses. The representational allowance is not to be used to defray any personal, political, or campaign-related expenses. A Member also may not use campaign funds to pay for expenses related to his or her official and representational duties; may not use committee funds to pay
Congressional Salaries and Allowances
303
for official representational expenses; may not use an unofficial office account to support official and representational duties; accept from a private source any in kind assistance with a monetary value for an official activity; and may not use personal funds to pay for franked mail. A Member is responsible for personally paying for any official and representational expenses that are in excess of his or her representational allowance or that are not reimbursable under regulations of the Committee on House Administration.11
Official Mail Allowance (Franking Privilege) Representatives are authorized the privilege of sending mail as franked mail in the conduct of official business to assist them in their duties as Members of Congress. Requirements on the use of the frank and mass mailings are established in statute and the regulations and rules of the House. Use of the frank is the personal responsibility of each Representative.12 The franked mail postage allowance is based on a formula in which the rate of a single piece of first class mail is multiplied by three, and the resulting figure is multiplied by the number of non-business addresses in a Representative’s district.13 The Committee on House Administration set the 2007 official mail allowance for each Member at 45% of the calculation based on the above formula.14 The allowance may be used to pay the costs of first, third, or fourth class franked mail. It may not be used to pay for certain specified mailing costs, for example, express mail.15 Since the official mail allowance is combined with the personnel and office expenses allowances, there is no limit on the amount of money a Member can spend on franked mail from the combined allowances.
Other Allowances Government Publications Each Representative is entitled to receive certain government publications and printed products. These include, for example, copies of the daily Congressional Record, one copy of Deschler’s Precedents, various manuals and directories, and public document franked envelopes.16 Travel Allowance for Organizational Caucuses or Conferences Each Member-elect and one designated staff person who attend an organizational caucus or conference are to be paid for one round trip each between their places of residence in the district and Washington, DC, for the purpose of attending such caucus or conference. Each incumbent Member reelected to the ensuing Congress and one designated staff person who attend an organizational caucus or conference also receive this allowance. Each Member-elect (other than an incumbent Member reelected to the ensuing Congress) who attends such a caucus or conference is also authorized to be reimbursed on a per diem or other basis for expenses incurred in connection with attendance.
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PERSONNEL, OFFICE EXPENSES, AND MAIL ALLOWANCES FOR U.S. SENATORS Senate Allowance System Senators have three official allowances available to them for personnel and official office expenses. They are the administrative and clerical assistance allowance, the legislative assistance allowance, and the official office expense allowance. The administrative and clerical assistance allowance and the office expense allowance are governed by state population, distance from Washington, DC, to home states, and committee authorized limits. The administrative and clerical allowance varies for each Senator since it is based on state population. The office expense allowance also varies for each Senator due to the travel allowance component, which is based on the distance between Washington, DC, and their home state, and the mail allowance component, which is based on the number of addresses in their states. The legislative assistance allowance is a set amount for all Senators. The total amount available to a Senator is the sum of the two personnel allowances (administrative and clerical assistance and legislative assistance) and the office expense allowance. In FY2006, the total of the three allowances available for Senators ranged from $2,528,193 to $4,111,381 depending on the factors discussed above.17 All funds made available to each Senator for the three allowances can be interchanged by the Senator. For example, funds available for office expenses can be used to pay office personnel salaries, and visa versa. Interchanges are limited by official mail regulations that are issued by the Senate Committee on Rules and Administration.18 The three allowances are funded together in a single appropriation subaccount “Senators’ Official Personnel and Office Expense Account,” within the appropriation account “Contingent Expenses of the Senate.” Appropriations are available to support only the official duties of Senators, and appropriations are not to be used to defray any personal, political, or campaign- related expenses. Senators are responsible for payment of any expenses incurred in support of official duties that exceed the set allowances of the individual accounts. All personnel, office, and official mail expenses reimbursed to or on behalf of a Senator are required to be published in the semiannual Report of the Secretary of the Senate.
Personnel Allowances: Administrative and Clerical Assistance and Legislative Assistance Two personnel allowances are available for each Senator to use for staff employment in his or her Washington congressional office and home state office(s). Under the 2006 Order of the President pro Tempore, each Senator was authorized to set the rates of compensation for staff in his or her personal offices at a figure not to exceed $160,659 per person.19
Administrative and Clerical Assistance Allowance The administrative and clerical assistance allowance is allocated according to the population of a Senator’s state. In FY2006, the allowance varied from $1,926,936 for a
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Senator representing a state with a population under 5,000,000 to $3,170,602 for a Senator representing a state with a population of 28,000,000 or more.20
Legislative Assistance Allowance In FY2006, each Senator was authorized $472,677 to appoint up to three legislative assistants, to be paid a maximum of $157,559 each per annum.21
Official Office Expense Allowance Senators are authorized the use of an official office expense allowance for official Senate business. Each Senator’s account varies depending upon factors used in setting the individual allowance amounts. These factors are primarily the distance between Washington, DC, and the home state, the population of the state, and the official mail allocation. In FY2006, allowances ranged from $128,580 to $468,102.22 The office expense account is to be used only for official office expenses by a Senator and his or her employees.
Official Mail Allowance Senators are authorized the privilege of sending mail as franked mail in the conduct of official business to assist them in their duties as Members of Congress. Requirements on the use of the frank and mass mailings are established in statute, regulations and rules of the Senate, and interpretative rulings of the Senate Ethics Committee. Each Senator is authorized a specific dollar allocation for franked mail, largely based on the number of addresses in his or her state.
Other Allowances Senate Interns Senators may employ interns during the academic year and during the summer. Senators determine their own financial arrangements for interns. Office Space in States Each Senator is authorized to secure, in an amount determined by law, suitable office space in federal building(s) in the state he or she represents. In the event suitable office space is not available in a federal building, a Senator is authorized to lease privately owned office space. The cost of private space is not to exceed the highest rate per square foot charged by the General Services Administration (GSA). The aggregate square footage of office space that can be secured for a Senator ranges from 5,000 square feet, if the population of the state is less than 3,000,000, to 8,200 square feet, if the state’s population is 17,000,000 or more.23 There is no restriction on the number of offices.
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Mobile Office Space for Senators Each Senator is entitled to lease one mobile office for use only in the state he or she represents. Senators are authorized to be reimbursed for rent and nonpersonnel costs of operating the office. There are limitations on the terms of the lease, the maximum annual rental payment, and reimbursable operating costs. No reimbursement is to be made for expenses incurred during the 60 days preceding a contested election.24 Furniture and Furnishings in Washington, DC. Each Senator is authorized furniture and furnishings from an approved list. Furniture and furnishings are supplied and maintained by the Architect of the Capitol (for spaces in Senate office buildings) and the Senate Sergeant at Arms (for offices in the Capitol). Additional furnishings can be purchased through the Senate stationery store. Furniture and Furnishings in State Offices Each Senator is authorized $40,000 for state office furniture and furnishings for one or more offices, if the aggregate square footage of office space does not exceed 5,000 square feet. The base authorization is increased by $1,000 for each authorized additional incremental increase in office space of 200 square feet.25 Under the FY2000 Legislative Branch Appropriations Act, this allowance is to be automatically increased at the beginning of each Congress to reflect inflation.26 The aggregate dollar amount is the maximum value of furniture and furnishings to be provided by GSA for state office use at any one time. Furniture and furnishings remain GSA property. Office Equipment in Washington, DC, and State Offices Each Senator may use certain basic office equipment allocated in accordance with the population of the state he or she represents and other factors that have been stipulated by the Senate Committee on Rules and Administration. Government Publications Each Senator is entitled to receive certain government publications and printed products. These include, for example, copies of the daily Congressional Record, one copy of Deschler’s Precedents, various manuals and directories, and public document franked envelopes.27
COMPENSATION OF OTHER CONGRESSIONAL OFFICERS AND OFFICIALS House of Representatives28 Majority and Minority Leaders Chief Administrative Officer Clerk of the House Sergeant at Arms Legislative Counsel
$183,500 per annum $163,700 per annum $163,700 per annum $163,700 per annum $163,700 per annum
Congressional Salaries and Allowances Law Revision Counsel Parliamentarian Inspector General Director, Interparliamentary Affairs Director, Emergency Planning,, Preparedness, and Operations General Counsel to House Chaplain
307
$163,700 per annum $163,700 per annum $163,700 per annum $163,700 per annum $163,700 per annum $163,700 per annum $163,700 per annum
Senate29 President pro tempore ($215,700 per annum if the position of Vice President is vacant) Majority and Minority Leaders Secretary of the Senate Sergeant at Arms and Doorkeeper Legislative Counsel Senate Legal Counsel Parliamentarian Chaplain
$183,500 per annum30 $183,500 per annum $163,700 per annum $163,700 per annum $163,700 per annum $163,700 per annum $162,515 per annum $145,400 per annum31
COMPENSATION OF STANDING COMMITTEE EMPLOYEES HOUSE OF REPRESENTATIVES House of Representatives The maximum salaries for employees of committees, as established in the 2006 pay order, are $163,700 per annum for up to three staff members (two majority and one minority); $161,997 per annum for up to nine staff members (six majority and three minority);32 and a maximum of $159,828 for other staff.33
Senate The maximum salary for employees of standing committees, as established in the 2006 pay order, is $162,515 per annum.34
ENDNOTES 1
2
This chapter was originally written by Paul E. Dwyer, formerly a Specialist in American National Government at CRS, who has since retired. Outside earned income generally includes monetary wages, salaries, fees, and any other sums received as payment for personal services rendered.
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Members may not receive compensation for affiliating with a firm, partnership, association, corporation, or other entity providing professional services involving a fiduciary relationship; allowing his/her name to be used by a firm, partnership, association, corporation, or other entity; practicing a profession involving fiduciary relationships; serving as a member or officer of the board of an association, corporation, or other entity; and teaching without prior notification and approval of the Senate Select Committee on Ethics, in the case of Senators, or the House Committee on Standards of Official Conduct, in the case of Representatives. 4 See CRS Chapter RL30868, Tax Rules and Rulings Specifically Applicable to Members Of Congress, by John R. Luckey. 5 See CRS Chapter RL3063 1, Retirement Benefits for Members of Congress, by Patrick Purcell. 6 U.S. Congress, House, Statement of Disbursements of the House, as compiled by the Chief Administrative Officer, from April 1, 2007, to June 30, 2007, part 3 of 3, H.Doc. 110-52, 1 10th Cong., 1st sess. (Washington: GPO, 2007), pp. 3421-3435. 7 Ibid., p. 3421. 8 U.S. Congress, House, Order of the Speaker of the House of Representatives, implementing a pay increase for House employees, effective January 1, 2006, issued December 18, 2005 (to be contained in 2 U.S.C. 60a-2a and available at [http://uscode.house.gov]. 9 U.S. Congress, House, Statement of Disbursements of the House, as compiled by the Chief Administrative Officer, from April 1, 2007, to June 30, 2007, part 3 of 3, H.Doc. 110-52, 110th Cong., 1st sess. (Washington: GPO, 2007), p. 3421. 10 Distance is based on the Rand McNally Standard Highway Mileage Guide. 11 For more details, see U.S. Congress, House Committee on House Administration, Members’ Congressional Handbook (regulations governing Members’ representational allowances). The web edition is available at [http://cha.house.gov/index.php?option =com_content&task=view&id=49&Itemid=37]. 12 See [http://cha.house.gov/services/memberhandbook.htm#1 10]. 13 The number of addresses is determined by the postmaster general. The number is not to include business delivery stops. 14 U.S. Congress, House, Statement of Disbursements of the House, as compiled by the Chief Administrative Officer, from April 1, 2007, to June 30, 2007, part 3 of 3, H.Doc. 110- 52, 110th Cong., 1st sess. (Washington: GPO, 2007), p. 3421. 15 Regulations on the proper use of the frank are set by the House Commission on Congressional Mailing Standards. 16 For additional information, see “Information Services for Members of Congress,” GPO Publication 250.4, January 2007, pp. 2-3, available at [http://www.gpo.gov/ congressional/ pdfs/InformationService.pdf], last accessed August 13, 2007. 17 U.S. Congress, Senate Committee on Appropriations, Legislative Branch Appropriations, 2006, chapter to accompany H.R. 2985, 109th Cong., 1st sess., S.Rept. 109-89, June 24, 2005 (Washington: GPO, 2005), pp. 20-21. More recent figures will be provided as they are made available. 18 Ibid., p. 19 19 Source is Order of the President pro tempore, implementing a pay increase for Senate employees, issued January 4, 2006, (to be contained in 2 U.S.C. 60a-1 and currently available at [http://uscode.house.gov]).
Congressional Salaries and Allowances 20
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U.S. Congress, Senate Committee on Appropriations, Legislative Branch Appropriations, 2006, chapter to accompany H.R. 2985, 109th Cong., 1st sess., S.Rept. 109-89, June 24, 2005 (Washington: GPO, 2005), pp. 20-21. 21 Ibid., pp. 20-21. 22 Ibid. 23 2 U.S.C. 59(b). 24 2 U.S.C. 59(f). 25 2 U.S.C. 59(c)(2). 26 P.L. 106 — 57, 113 Stat. 412, September 29, 1999. 27 For additional information, see “Information Services for Members of Congress,” GPO Publication 250.4, January 2007, pp. 2-3, available at [http://www.gpo.gov/ congressional/ pdfs/InformationService.pdf], last accessed August 30, 2007. 28 In 2006, the majority and minority leaders were paid at the same rate of pay as federal officials in Level I of the Executive Schedule [2 U.S.C. 31 and 2 U.S.C. 362; P.L. 101194, 103 Stat. 1766, November 30, 1989, Title VII, sec. 701(i)]. Executive Schedule Level I positions include cabinet-level officials. The Revised Continuing Appropriations Resolution, 2007, [P.L. 110-5, 121 Stat. 8, February 15, 2007] denied an annual adjustment in pay for Members of Congress, including the majority and minority leaders. For additional information on the pay relationship between these positions, see CRS Chapter RS20388, Salary Linkage: Members of Congress and Certain Federal Executive and Judicial Officials, by Barbara L. Schwemle. Source for other positions is U.S. Congress, House, Order of the Speaker of the House of Representatives, implementing a pay increase for House employees, effective January 1, 2006, issued December 18, 2005 (to be contained in 2 U.S.C. 60a-2a, and currently available at [http://uscode.house.gov]). Estimates may also be obtained by examining the quarterly Statement of Disbursements of the House. 29 In 2006, the majority and minority leaders were paid at the same rate of pay as federal officials in Level I of the Executive Schedule [2 U.S.C. 31 and 2 U.S.C. 362; P.L. 101194, 103 Stat. 1766, November 30, 1989, Title VII, sec. 701(i)]. Executive Schedule Level I positions include cabinet-level officials. The Revised Continuing Appropriations Resolution, 2007, [P.L. 110-5, 121 Stat. 8, February 15, 2007] denied an annual adjustment in pay for Members of Congress, including the majority and minority leaders. For additional information on the pay relationship between these positions, see CRS Chapter RS20388, Salary Linkage: Members of Congress and Certain Federal Executive and Judicial Officials, by Barbara L. Schwemle. The source for salaries of officers and officials of the Senate in 2006, excluding the Chaplain, is the Order of the President pro tempore, implementing a pay increase for Senate employees, issued January 4, 2006, (to be contained in 2 U.S.C. 60a-1 and currently available at [http://uscode.house.gov]). Estimates may also be obtained by examining the semi-annual Chapter of the Secretary of the Senate. 30 The President pro tempore is paid $215,700 (2007 rate) if there is a vacancy in the position of Vice President. The U.S. Constitution provides that the Vice President shall serve as President of the Senate, and that when the Vice President is absent from the Senate, the President pro tempore presides in his place. During a vacancy in the position of the Vice President, the President pro tempore is considered the temporary, full-time President of the Senate and receives the increased salary rate (2 U.S.C. 32).
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The Chaplain is paid the same as federal officials in Level IV of the Executive Schedule. The chairman of the House Committee on Appropriations may establish the salaries for 24 staff, seven of which are to be designed by the ranking minority party member. 33 Source is Order of the Speaker of the House of Representatives, implementing a pay increase for House employees, effective January 1, 2006, issued December 18, 2005 (to be contained in 2 U.S.C. 60a-2a, and currently available at [http://uscode.house.gov]). 34 The source for salaries of officers and officials of the Senate in 2006 is the Order of the President pro tempore, implementing a pay increase for Senate employees, issued January 4, 2006, (to be contained in 2 U.S.C. 60a-1 and currently available at [http://uscode.house.gov]). 32
In: Congress of the U.S: Commitees, Rules and Procedures ISBN 978-1-60456-416-7 Editor: Sela G. Thomason © 2009 Nova Science Publishers, Inc.
Chapter 16
PRESCRIPTION DRUG SALES OVER THE INTERNET* Christopher J. Sroka ABSTRACT This chapter provides an overview of prescription drug sales over the Internet and related legislative activities. The chapter discusses how online pharmacies operate and some of the concerns raised by the sale of drug products in electronic commerce. The chapter also describes some recent government and private sector actions taken to address these concerns.
SUMMARY The sale of prescription drugs is highly regulated in the United States. In recent years, the growth of the Internet and electronic commerce has made it possible for consumers to purchase prescription drugs online. The sale of prescription products over the relatively unregulated Internet has raised several issues and concerns for policymakers, regulators, and medical practitioners. One concern is that some online pharmacies engage in the practice of prescribing and dispensing prescription drugs without a medical examination of the patient by a licensed physician. Another concern is the use of the Internet to obtain prescription drugs from foreign-based online pharmacies. Such purchases may involve drugs that are counterfeit or are not approved by the Food and Drug Administration (FDA) for use in the U.S., or drugs that were manufactured and stored under poor conditions. There are also concerns associated with the practices of what many view as legitimate and ethical online pharmacies. One such concern is that online pharmacies do not provide the same level of care as traditional pharmacies because the consumer does not have face-to-face contact with a pharmacist. Some observers have suggested that information about a patient is
*
This is an edited, excerpted and augmented edition of a CRS Report for Congress publication, Order Code RL30456, dated March 10, 2000.
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not secure when it is transmitted over the Internet, under any circumstances, and that confidentiality cannot be guaranteed once the information is received by the online pharmacy. Despite the concerns raised by the sale of prescription drugs via the Internet, there is the view held by many that online pharmacies offer significant advantages to consumers. Online pharmacy purchases can be convenient, allowing consumers to order prescriptions from their home at any time of day. Some online pharmacies arguably offer lower prices than their traditional retail counterparts. Moreover, the Internet provides a convenient and effective means for online pharmacies to provide consumers with more information on their ailments and the proper medications used to treat them, including links to online health information. Both the government and the private sector have taken actions to address some of the concerns expressed regarding online pharmacies. To date, three bills (S. 881, H.R. 2763, and H.R. 3636) have been introduced and one hearing has been held in the 106' Congress related to the online sale of prescription drugs. The Clinton Administration has developed its own proposal to facilitate enforcement activities by the FDA, including allocating additional funds specifically for investigating and prosecuting illegal online pharmacies. The FDA has introduced a website to educate consumers on purchasing drugs online and has sent letters to operators of foreign- based online pharmacies warning the operators that their practices may be illegal. Some state governments have filed lawsuits against unlicensed online pharmacies. The National Association of Boards of Pharmacy (NABP) has developed its own program, called the Verified Internet Pharmacy Practice Sites (VIPPS), to issue seals of approval to online pharmacies that meet legal and ethical requirements.
OVERVIEW AND ISSUES OF CONCERN Purchasing prescription drugs over the Internet is a relatively new phenomenon that has arisen with the explosive growth in the public use of the Internet and electronic commerce. Unlike the sale of many goods, the sale of prescription drugs through traditional retail channels is highly regulated. Prescription drugs can be obtained only with a physician's consent and only from licensed pharmacies. Both the physician and the pharmacist dispensing the medication must be licensed. Furthermore, the product sold, as well as the methods by which it was produced and marketed, must be approved by the U.S. Food and Drug Administration (FDA). Thus, the sale of prescription drugs (a regulated product in traditional settings) over the relatively unregulated Internet has become a concern for policymakers, regulators, and medical practitioners. Distinctions are often made between "legitimate" online pharmacies and those that engage in unethical or illegal dispensing practices.1 The concerns associated with online pharmacies tend to be directed more towards the practices that are unethical or illegal and less towards those of legitimate online pharmacies. Legitimate online pharmacies operate much the same way as mail-order pharmacies. However, rather than placing the order via telephone or mail, patients order their medications via the Internet. Medications purchased online are either sent directly to patients or, in some instances, picked up by them later at a local affiliated pharmacy. To verify that the prescription ordered online is accurate, patients mail or fax their new prescriptions to the online pharmacy. Alternatively, they can ask their physicians to phone the online pharmacy and provide the new prescription information directly.2 Patients can also order refills of
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prescription drugs previously dispensed by the online pharmacy and transfer existing prescriptions from other pharmacies (both online and traditional). Some online pharmacies require patients to submit a medical profile, which the online pharmacy maintains along with a record of previous prescriptions. This allows the online pharmacy to determine if there are any potential drug interactions or side effects which may have an adverse effect on the patient. Online pharmacies usually have telephone numbers or email addresses so that their customers can contact a pharmacist should they need to discuss their medications or other problems they may encounter. Although getting a prescription filled online can be done relatively easily with just a few clicks, receiving the medication may take several days. One online pharmacy, Drugstore.com [www.drugstore.com], instructs consumers to allow 3-5 days for the pharmacy to receive the prescription and another 1-2 days for the pharmacy to process the prescription. The time it takes to deliver the medication from the online pharmacy to the customer can vary depending on the preferences of the customer. Drugstore.com provides free standard delivery via the U.S Postal Service Priority mail, which requires another 2-3 days. However, customers can opt for UPS 2-Day Shipping for $5.95 or UPS Overnight Shipping for $11.95. Other online pharmacies that deliver prescriptions operate similarly. Some online pharmacies, such as [www.cvs.com], [www.riteaid.com], and [www.walgreens.com], are online extensions of traditional chain pharmacies. The online version of traditional chain pharmacies generally give customers the option of having the medication delivered or picking it up themselves from a local chain outlet. There is a spectrum of online pharmacies whose activities fall outside what many would consider ethical and legitimate pharmacy practices. One practice that tends to receive criticism is when both the prescribing and the dispensing of the drug are performed online simultaneously. Several websites allow customers to receive a prescription for medication without a physical examination by a physician. In place of a traditional face-to-face consultation, the customer fills out a medical questionnaire. Reportedly, a licensed physician at the online pharmacy evaluates the questionnaire, then, if the prescription is medically justified, authorizes the online pharmacy to send the medication to the patient. This practice tends to be limited more to "lifestyle" prescription drugs, such as those that alleviate allergies, promote hair growth, treat impotence, or control a person's weight. Nevertheless, it is feasible that controlled prescription drugs could be dispensed via the Internet without a medical examination. The American Medical Association (AMA) is critical of prescribing drugs without a physical examination. Such a practice violates AMA's ethical standards, and, in the association's opinion, raises serious quality-of-care issues.3 A second practice, and one that is illegal in many circumstances, is the sale of prescription drugs to American consumers via the Internet by foreign-based companies. With some exceptions, it is illegal to import prescription drugs that are not approved by the FDA. FDA approval involves not only assessing a drug's safety and effectiveness, but also inspecting the facility in which it is manufactured.4 Unless the importing party can prove that the drugs bought from abroad are FDA- approved, and manufactured in an FDA-approved facility, the agency treats the imported drugs as unapproved products.5 Despite this policy, there are numerous foreign-based pharmacies that sell prescription drugs to American consumers. These products may be drugs not approved for use in the U.S. by the FDA, counterfeit copies of FDA-approved drugs, or FDA-approved drugs that have not been manufactured, stored, and handled in an FDA-approved manner. Moreover, many foreign
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countries do not require patients to obtain prescriptions for some drugs while patients buying the same drugs in the U.S. may be sold only by prescription. This means that foreign-based online pharmacies may be selling prescription drugs to American customers who do not have a physician's consent to use the drug. Consequently, drugs obtained from foreign online pharmacies could pose serious health and legal problems for American consumers. Although most criticism is focused on foreign-based online pharmacies and American online pharmacies with questionable practices, so-called legitimate pharmacies are not free from controversy. Questions have been raised regarding the quality of care received by patients when they are not able to consult with pharmacists in person. In order to provide patient access to a pharmacist, some online pharmacies allow customers to submit personalized questions to pharmacists via email. Furthermore, some online pharmacies do not disclose to patients the name or credentials of the pharmacist. Thus, some have expressed concern that patients may be consulting with a pharmacist who is not licensed in the patient's state. There are other concerns associated with legitimate online pharmacies. Yet these concerns are not constrained only to the sale of prescription drugs; rather, they apply to electronic commerce transactions in general. One issue is whether using the Internet is secure enough to offer customers an appropriate degree of privacy. Some online pharmacies require customers to submit credit card, medical, and insurance information over the Internet. This practice raises concerns that such personal information could be accessed by other people as it is transmitted. In an attempt to protect the transmission of personal information, several online pharmacies use secure servers that encrypt customers' personal information so that it cannot be read as it travels over the Internet. Another issue involves the confidentiality of consumer information once it is received by the pharmacy. Some legislators are concerned because it is not certain whether online pharmacies are adequately protecting consumers' personal information.6 A spokesperson for the online pharmacy Soma (now part of [www.cvs.com]) claimed that, compared to the corner drugstore, online pharmacies offer more privacy.7 However, this is not an issue that solely affects online pharmacies. For example, the traditional retail pharmacy operations of Giant Food and CVS reportedly shared detailed information on customers with Elensys, a data management company.8 According to this report, Elensys arranged for drug manufacturers to pay the pharmacies for this information so that the manufacturers could send "educational" material to consumers. Although the practice was defended as benefitting consumers, both companies announced that it would be discontinued.9
ADVANTAGES OF ONLINE PHARMACIES Despite the concerns raised by legitimate online pharmacies and the existence of some unethical and illegal online pharmacies, purchasing prescription drugs over the Internet can provide consumers many advantages over traditional retail pharmacies. One major advantage is convenience. Online pharmacies deliver the drugs directly to the customer. While the customer may have to wait several days to receive the drugs, he or she does not have to travel to a local traditional pharmacy to order the drug and wait there for the prescription to be
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filled. Furthermore, for those with easy access to Internet connections, online pharmacies are available 24 hours a day, 7 days a week. Some online pharmacies advertise that they provide lower prices to consumers than traditional retail pharmacies. Online pharmacies tend to operate similarly to mail-order pharmacies, Because many online pharmacies do not operate retail outlets, they may have lower operating costs. Online pharmacies can also buy in larger volumes than many small, independent pharmacies (but not necessarily more cheaply than large retail chains), possibly leading to greater cost savings. These lower costs could be passed on to consumers in the form of lower prices. However, although consumers may be paying a lower base price for online prescriptions, shipping and handling charges may reduce their savings, or even result in a higher price than the consumer would pay in a retail pharmacy. This is more likely to occur when a consumer chooses overnight delivery over the free standard delivery by the U.S. Postal Service. On the other hand, for relatively high-priced prescription drugs, shipping costs are less likely to mitigate the savings. Another advantage, often advertised by many online pharmacies, is easier access to health and medical information. Many online pharmacies provide detailed drug information on their websites, such as the availability of a generic substitute, possible food and drug interactions, and other possible side effects. Some online pharmacies provide information about illnesses, allowing customers to learn more about their medical conditions. Online pharmacies also tend to list their prices for commonly prescribed drugs.10 This could assist consumers in selecting the lowest priced online pharmacy to have their prescriptions filled. While this kind of information may be available from retail pharmacies, some find that computer access provides a more convenient and accessible source of information.
RECENT GOVERNMENT ACTIONS The emergence of online pharmacies has prompted actions by Congress, the Clinton Administration, FDA, and several state governments. These actions have taken the form of proposed policy changes, heightened government oversight, and greater enforcement of existing consumer protection regulations.
Congressional Actions Three bills related to online prescription drug sales have been introduced in the 106' Congress. The Medical Information Protection Act of 1999 (S. 881) was introduced on April 27, 1999 by Senator Robert Bennett and referred to the Committee on Health, Education, Labor, and Pensions. This bill seeks to prevent the unauthorized disclosure of consumers' health information while at the same time allowing health care professionals to access patient data to improve health care and research. The bill's privacy provisions target all health care delivery, not just online pharmacies. However, online medicine is one factor that influenced the proposed legislation.11 On August 5, 1999, the Internet Pharmacy Consumer Protection Act (H.R. 2763) was introduced by Representative Ron Klink and referred to the House Committee on Commerce.
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This bill would establish a set of minimum requirements for online pharmacies. The bill would require online pharmacies to have a webpage on their sites that displays (1) the name, address of the principal place of business, and telephone number of the online seller, (2) each state in which the business is authorized to dispense prescription drugs, (3) the name of each of the online pharmacy's pharmacists and the state in which he or she is licensed to practice, and (4) when the online pharmacy provides medical consultations, the name, type of profession, and state of licensure of each individual providing consultation. Each page on the online pharmacy's site would be required to have a clearly visible link to the page providing the information described above. Furthermore, the bill would make the Secretary of Health and Human Services responsible for enforcement of these provisions. However, for states that have regulations on online pharmacies more stringent than those specified in the bill, and have the means to enforce the regulations, the measure gives them primary enforcement responsibility. A third bill related to the sale of prescription drugs over the Internet was introduced on February 10, 2000. The bill, entitled the Pharmaceutical Freedom Act of 2000 (H.R. 3636) was introduced by Representative Ron Paul and referred to the Committee on Commerce and the Committee on Ways and Means. Among other things, the bill seeks to make it easier to import prescription drugs. The bill would allow authorized importers to bring prescription drugs into the United States if the importer submits an application to the Secretary of Health and Human Services and the Secretary approves the application. H.R. 3636 also contains a section specifying how the bill is to be enforced with respect to online pharmacies. The bill states that the Secretary may not take any action against online drug sales under the Act as long as (1) the online sale was made in compliance with the Act and applicable state laws, and (2) the online pharmacy provides on its website accurate information regarding compliance with the Act and applicable state laws. On July 30, 1999, the Subcommittee on Oversight and Investigations of the House Commerce Committee held a hearing on the benefits and risks of online pharmacies. Witnesses that testified at the hearing included officials from the FDA, the U.S. Department of Justice, and the Federal Trade Commission. Other witnesses included state officials in charge of enforcing laws pertaining to the practices of online pharmacies as well as the chief executive officers (CEO) of two licensed online pharmacies. Federal enforcement officials testified that they believed no new laws were needed to deal with the practices of online pharmacies. Instead, federal officials stated that what was needed is more assistance for enforcement of existing laws. State officials, on the other hand, favored new legislation. State officials stated that, at a minimum, a law requiring online pharmacies to post information on how to contact the pharmacy operators is needed. State officials also advocated allowing state attorneys general to file suits against illegal online pharmacies in federal courts. This would allow the states to obtain injunctions against the nationwide operations of illegal online pharmacies, as opposed to obtaining injunctions only against operations being conducted within the state filing the lawsuit. The CEOs at the hearing represented the licensed online pharmacies of PlanetRx [www.planetrx.com] and Drugstore.com. These executives advocated enforcement of existing laws for online pharmacies operating illegally and industry selfregulation for those operating within the law.
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The Clinton Administration's Proposal In December 1999, the Clinton Administration introduced a proposal to address problems raised by online pharmacies. The proposal would require online pharmacies to demonstrate to the FDA that their practices comply with state and federal prescription drug laws. Sites operating without demonstrating compliance with agency rules would be subject to sanctions. The Administration proposal would create new civil monetary penalties of $500,000 per violation for the sale of prescription drugs to consumers without valid prescriptions. To facilitate FDA investigations into online pharmacy practices, the Administration's proposal would provide the agency with administrative subpoena authority when investigating potentially illegal drug sales over the Internet. Furthermore, the Administration's proposal would provide $10 million in the FDA's FY 2001 budget for the agency to develop a rapid response team and to upgrade its computer technology so that the agency can more effectively identify, investigate, and prosecute illegal prescription drug sales practices conducted over the Internet. The Administration also announced a new public education campaign, both over the Internet and through traditional media outlets, informing consumers on how to safely purchase prescription drugs online.
FDA Enforcement In December 1999, the FDA announced the launching of an Internet site aimed at helping consumers choose legitimate and safe online pharmacies. The website, [www.fda.gov/oc/buyonline], provides consumers with tips and precautions for buying prescription drugs over the Internet. The FDA website warns consumers to avoid buying from online pharmacies that do not require a prescription, do not provide access to a pharmacist, or are located in foreign countries. The website also allows consumers to report suspicious online pharmacies to the FDA. The FDA has also taken action against foreign online pharmacies selling prescription drugs to American consumers. In February 2000, the agency announced that it had sent letters via the Internet ("cyber" letters) to potentially illegal foreign- based pharmacy websites. The "cyber" letters warned the foreign operators that their businesses may be operating illegally and informed the websites of U.S. prescription drug laws and regulations. The "cyber" letters also warned the websites that future shipments of their products into the U.S. may be detained and subject to refusal of entry. Hard copies of the "cyber" letters were sent to the website operator, U.S. Customs officials, and officials in the home country of the website operator. As of February 2, 2000, one targeted website had responded to the FDA and had indicated that it will cease its illegal activities.12
Actions at the State Level Some states have taken their own action against online pharmacies. In June 1999, the State of Kansas filed lawsuits against five online pharmacies. Illinois and Missouri filed separate but similar lawsuits in October 1999. Online pharmacies must be licensed in each state to which the pharmacy sends its products. The state lawsuits are targeting online
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prescription drug sales by companies and individuals who allegedly are not licensed to practice medicine or dispense prescription drugs in the states to which drugs have been delivered. The parties charged in the lawsuits also allegedly engaged in prescribing medication over the Internet without any physical contact with customers or without verifying the validity of the medical information the customers provided.
PRIVATE SECTOR ACTIONS The private sector has also taken its own actions to address problems raised by the sale of prescription drugs over the Internet. On February 9, 1999, the National Association of Boards of Pharmacy (NABP) announced the development of an online pharmacy verification program. This program, known as the Verified Internet Pharmacy Practice Sites (VIPPS) program, developed a set of criteria that online pharmacies should meet. An online pharmacy meeting the criteria can display the VIPPS seal of approval which indicates to consumers that the online pharmacy engages in ethical and legitimate practices. NABP also provides a list of online pharmacies meeting the VIPPS criteria on its website.13 As of March 1, 2000, four online pharmacies (CVS, Drugstore.com, Merck-Medco Managed Care, and PlanetRx.com) were approved under the VIPPS program. The VIPPS criteria covern licensure by state agencies, compliance with state and federal laws, protection of patient confidentiality, communication with a pharmacist, storage and shipment of medication, and various other issue areas.14
ENDNOTES 1
See "Issue Brief: Internet Pharmaceutical Services," National Association of Chain Drug Stores, August 2, 1999. Available at [http://www.nacds.org/news/releases/ nr_080299_brief.html]. 2 This method of transmitting prescription information is also acceptable for prescriptions obtained at traditional retail establishments. 3 Melba Newsome, "Physicians Cry Foul Over Web Drug Sales,"Investor's Business Daily, March 8, 1999, p. Al. 4 For more information on FDA procedures, see CRS Report 95-422 SPR, "Food and Drug Administration: Selected Funding and Policy Issues for FY2000" by Donna U. Vogt, updated January 31, 2000. 5 See "Information on Importation of Drugs," prepared by the Division of Import Operations and Policy, U.S. Food and Drug Administration. Available at [http://www.fda.gov/ora/import/pipinfo.htm]. 6 Letter to General Accounting Office from Reps. John D. Dingell, Ron Klink, Henry A. Waxman, and Sherrod Brown requesting investigation into online pharmacies. 7 Lesly C. Hallman and Joyce Cutler, "Pharmaceutical Industry Seeks Regulations to Guide Growing Use of Internet," Daily Report for Executives, Bureau of National Affairs. March 9, 1999.
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Robert O'Harrow, Jr., "Prescription Sales, Privacy Fears; CVS, Giant Share Customer Records with Drug Marketing Firm," Washington Post, February 15, 1998. 9 Robert O'Harrow, Jr., "CVS Also Cuts Ties to Marketing Service; Like Giant, Firm Cites Privacy on Prescriptions," Washington Post, February 19, 1998. 10 These prices are for cash-paying customers. Online pharmacies usually indicate that the prices listed may vary for consumers with prescription drug insurance. 11 See Senator Bennett's website [http://www.senate.gov/—bennett/mipaspeech.html]. 12 To view copies of the "cyber" letters, see [http://www.fda.govicder/warnicyber/ cyber2000.htm], 13 To view a list of VIPPS-approved pharmacies, see [http://www.nabp.orgivipps/ consumer/listall.asp]. 14 For a complete list of the VIPPS criteria, see [http://www.nabp.orgivipps/ consumer/criteria.asp].
In: Congress of the U.S: Commitees, Rules and Procedures ISBN 978-1-60456-416-7 Editor: Sela G. Thomason © 2009 Nova Science Publishers, Inc.
Chapter 17
UNITED NATIONS COMMISSION ON HUMAN RIGHTS (UNCHR): RECENT CONGRESSIONAL ISSUES* Vita Bite SUMMARY The United States played a major role in establishin the U.N. Commission on Human Rights (UNCHR) and has been a member of that body from its first meeting in 1847. The U.S. term ends on December 31, 2001, since the United States did not secure enough votes to retain its seat in 2002. In response to this action by U.N. member countries, the House of Representatives on May 10, 2001 adopted an amendment to the Foreign relations Authorizations for FY2002-2003 (H.R. 1646) withholding the third and final arrears payment ($244 million) to the United Nations and other international organizations until the United States regains a seat on the UNCHR. This short chapter provides an overview of the UNCHR and Administration and Congressional responses to recent developments.
BACKGROUND ON THE U.N. COMMISSION ON HUMAN RIGHTS The U.N. Commission on Human Rights is the main U.N. intergovernmental policymaking body dealing with human rights issues worldwide. In its first years after its establishment in 1946, the Commission concerntrated on setting human rights standards by drafting international human rights treaties and declarations. Among its first accomplishments was overseeing the drafting of the Universal Declaration of Human Rights. The Commission has focued on investigation of alleged human rights violations, coordination of human rights activities in the U.N. system, and provision of advisory and technical services to countries requesting such help. in recent years, the Commission has given greater attention to the promotion of economic, social and cultural rights, including the right to development and to *
This is an edited, excerpted and augmented edition of a CRS Report for Congress publication, Order Code RS20825, dated June 4, 2001.
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Vita Bite
an adequate standard of living. It has also incresed attention to protection of the rights of particularly vulnerable groups in society, such as women, children, minorities and indigenous people. The Commission currently numbers 53 delegates representing member governments. The members are elected by the U.N. Economic and Social Council (ECOSOC)1 for staggered three-year terms on the basis of the following formula to ensure equitable geographical distribution: 15 from African countries; 12 from Asian countries; five from Eastern European countries; 11 from Latin American and Caribbean countries; and 10 from Western European and other countries (includes the United States). Representatives of other governments may participate as observers as may regional and international organizations, national human rights institutions, and nongovernmental organizations. In 1947 the Commission established a Sub-Commission on Prevention of Discrimination and Protection of Minorities (re-named the Sub-Commission on the Promotion and Protection of Human Rights) composed of 26 experts serving in their personal capacities. In order to examine specific human rights situations and problems the UNCHR established Working Groups and Special Rapporteurs to examine country- specific problems or to monitor major phenomena such as summary and arbitrary executions, religious intolerance, racism, sale of children, and violence against women. The Commission holds one six-week regular session in the spring of each year in Geneva, Switzerland. Since 1990 the Commission has been authorized to meet between regular sessions. The Commission has held four special sessions: in 1992 and 1993 on the former Yugoslavia, in 1994 on Rwanda, and in 1999 on East Timor.
THE 2001 SESSION OF THE UNCHR At its 57th regular session (March 19 through April 27, 2001), the Commission debated a wide range of human rights issues, adopted 82 resolutions, 16 decisions, and 4 chairman's statements. Resolutions were adopted criticizing the human rights situations in Afghanistan, Burma (Myanmar), Burundi, Cuba, Democratic Republic of the Congo, Equatorial Guinea, Iran, Iraq, Sudan, Sierra Leone, and Chechnya in the Russian Federation. The Commission expressed concern about Lebanese detainees in Israel and condemned the human rights situation in Israeli occupied territories. As in previous years, a draft resolution on the situation of human rights in China (sponsored by the United States) was defeated on a no-action motion tabled by China and passed by a vote of 23 to 17 with 12 abstentions. The Commission ended the mandate for the special representative for Rwanda, appointed a special rapporteur for indigenous peoples, and agreed to begin negotiations on a treaty to prevent "enforced disappearances." It extended the mandates ofthe special rapporteurs or special representatives for Afghanistan, Burma (Myanmar), Burundi, Democratic Republic of Congo, Equatorial Guinea, Iran, Iraq, and Sudan. Mandates were extended for special rapporteurs, special representatives, or independent experts on the following topics: mercenaries; the right to development; the right to education; the illicit transfer and dumping of toxic products and wastes; torture; freedom of religion; extrajudicial, summary, or arbitrary executions; internal displacement; and the sale of children, child prostitution, and child pornography.
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2001 ELECTIONS FOR MEMBERS OF THE UNCHR (FOR TERMS BEGINNING IN JAN. 2002) On May 3, 2001 the 54-member U.N. Economic and Social Council (ECOSOC) held elections for a number of Commissions and other bodies subject to the Council, including thel4 seats that were up for renewal on the Commission on Human Rights. Elections for the 53-member UNCHR are staggered so that a part of the Commission is elected every year for a term of three years. The 14 seats up for election were allocated in the following geographic distribution: 4 from African countries, 2 from Latin American and Caribbean countries, 3 from Asian countries, 2 from Eastern European countries, and 3 from Western European and other states (the United States is in this group), Each geographic group nominated candidates for election. The African group nominated 4 members and the Latin American and Caribbean group nominated 2. Since the number of nominees and slots were the same, a formal vote was not required and the candidates were elected by acclamation,2 In the other groups more candidates were nominated than available seats. So ECOSOC followed its procedures for secret balloting. In the Western European and other group 4 countries contested for 3 slots: Austria, France, Sweden, and the United States. The balloting produced the following result: France 52 votes, Austria 41 votes, Sweden 32 votes, and the United States 29 votes. Thus the first 3 were elected and the United States was not.
THE UNITED STATES AND THE UNCHR The United States played a key role in establishing the Commission and provided its first chairperson, Eleanor Roosevelt. From its first meeting in 1947 until its term ends in December 31, 2001, the United States has always been represented on the UNCHR. The United States has been an active participant and has been supportive of Commission activities. U.S. efforts since 1990 to have the Commission adopt a resolution on China's human rights practices, however, have not succeeded. The 2001 election which denied the United States a seat on the body for the first time since its establishment produced an especially angry response in the United States. The Bush Administration expressed disappointment and even outrage at the results of the election, especially since some countries which were elected such as Sudan, Uganda, and Pakistan, have serious human rights problems. At the same time, however, the Administration opposed linking U.S. financial obligations to international organizations to the outcome of the vote for Commission membership.3 Congress has generally supported active U.S. participation on the Commission.4 However, Congress has also been critical of the actions of some Commission Rapporteurs investigating U.S. human rights practices, as well as Commission inaction in condemning human rights violations in certain countries, most notably China.
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Vita Bite Members of the U.N. Commission on Human Rights (Terms end on December 31 of the year in parentheses) Columns 1-3 Show Members in 2001 Columns 2-4 Show Members in 2002
Colombia (2001) France (2001) Rep. Of Korea (2001) Latvia (2001) Liberia(2001) Madagascar (2001) Mauritius (2001) Mexico (2001) Niger (2001) Norway (2001) Pakistan (2001) Qatar (2001) Romania (2001) USA (2001)
Argentina (2002) Brazil (2002) Burundi (2002) China (2002) Czech Rep. (2002) Ecuador (2002) Germany (2002) Indonesia (2002) Italy (2002) Japan (2002) Nigeria (2002) Portugal (2002) Spain (2002) Swaziland (2002) Zambia (2002)
Algeria (2003) Belgium (2003) Cameroon (2003) Canada (2003) Dem. Rep. of Congo (2003) Costa Rica (2003) Cuba (2003) Guatemala (2003) India (2003) Kenya (2003) Libya ((2003) Malaysia (2003) Peru (2003) Poland (2003) Russia (2003) Saudi Arabia (2003) Senegal (2003) South Africa (2003) Syria (2003) Thailand (2003) United Kingdom (2003) Uruguay (2003) Venezuela (2003) Vietnam (2003)
Armenia (2004) Austria (2004) Bahrain (2004) Chile (2004) Croatia (2004) France (2004) Rep. of Korea (2004) Mexico (2004) Pakistan (2004) Sierra Leone (2004) Sudan (2004) Sweden (2004) Togo (2004) Uganda (2004)
Denial of a seat for the United States on the Commission produced a strong reaction in Congress, The House of Representatives, on May 10, 2001 while considering foreign relations authorizations legislation (H.R. 1646) on May 10, 2001 agreed (252 to 165) to an amendment offered by Representatives Henry Hyde and Tom Lantos which requires that the third and final tranche of U.S. arrears payments ($244 million) to the United Nations and other international organizations be contingent on a certification by the Secretary of State that the United States has regained a seat on the U.N. Commission on Human Rights. Speaking in support of his amendment, Representative Hyde decried the Commission election vote as "a deliberate attempt to punish the United States for its insistence that we tell the truth about human rights abuses, wherever they occur; including in those countries represented on the Commission such as China and Cuba... . it is appropriate that the U.S. send its own message to U.N. member states, and particularly the members of the western European group. If allowed to stand, this decision threatens to turn the Human Rights
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Commission into just one more irrelevant international organization".5 Representative Lantos expressed regret at having to offer the amendment and acknowledged the United Nations as indispensable. Nevertheless, he stated "I, along with the bulk of the American people, am outraged by the vote last week that put Sudan on the U.N. Human Rights Commission and took the United States off.”6 Representatives Cynthia McKinney and Carolyn Maloney opposed the amendment arguing that it was inappropriate to link U.S. arrears payment to membership on the Commission. Representative Maloney argued that the "United Nations did not remove the United States from the Human Rights Commission. That action was by the 54 member states of the U.N. Economic and Social Council. To penalize the U.N. for the actions of individual member states violates every sense of fair play."7
ENDNOTES 1
The Economic and Social Council was established by the U.N. Charter as the principal organ, under the authority of the U.N. General Assembly to promote international economic, social, cultural, educational, health, and related matters including universal respect for, and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language or religion. Article 68 ofthe Charter mandated that EC 0 SOC establish commissions in economic and social fields and for the promotion of human rights. 2 Rule 68 of ECOS OC procedures relating to elections states: "All elections shall be held by secret ballot, unless, in the absence of any objection, the Council decides to proceed without taking a ballot on an agreed candidate or slate." Rules of Procedure of the Economic and Social Council, U.N. document E/57115/Rev.2. 3 President George W. Bush during a press conference on May 11, 2001 responding to a question on whether the U.S. arrears payments should be withheld because of the vote on the Commission seat, said: " I think we have made an agreement with the United Nations, an agreement that had been negotiated in good faith, and I think we ought to pay our dues. Having said that, the decision was an outrageous decision. To me, it undermines the whole credibility of this commission — to kick the United States off, one of the great bastions of human rights, and allow Sudan to be on." 4 The Senate adopted S. Res. 22 on March 20, 2001 urging the U.S. representative to the UNCHR to introduce a resolution calling on China to end its human rights violations in China and Tibet; and the House passed (406-6) H. Res. 56 on April 3, 2001 calling for the same U.S. actions on China. The House also on April 3, 2001 by vote of 347 to 44 agreed to a H. Res. 91 urging the President to make all necessary effort to obtain passage during the 2001 meeting of the UNCHR of a resolution condemning the Cuban government for its human rights abuses, and secure the appointment of a Special Rapporteur for Cuba. 5 Congressional Record„ May 10,2001, p. H2125 6 1bid., p. H2092. 7
Congressional Record, May 10, 2001, p. 2127.
In: Congress of the U.S: Commitees, Rules and Procedures ISBN 978-1-60456-416-7 Editor: Sela G. Thomason © 2009 Nova Science Publishers, Inc.
Chapter 18
SALARIES OF MEMBERS OF CONGRESS: A LIST OF PAYABLE RATES AND EFFECTIVE DATES, 1789-2007* Ida A. Brudnick SUMMARY Congress is required by Article I, Section 6, of the Constitution to determine its own pay. Prior to 1969, Congress did so by enacting stand-alone legislation. From 1789 through 1968, Congress raised its pay 22 times using this procedure. Congressional salaries initially were $1,500. By 1968, they had risen to $30,000. Stand-alone legislation may still be used to raise Member pay, as it was most recently in 1982, 1983, 1989, and 1991, but two other methods — including an automatic annual adjustment procedure and a commission process — are now also available. Under the annual adjustment procedure, Members are scheduled to receive a 2.7% increase in January 2008, unless modified by Congress, or limited by the rate of increase in the base pay of General Schedule(GS) federal employees. Congress voted to deny the scheduled January 2007 adjustment. Members last received a pay increase (1.9%) in January 2006, increasing their salary to the current rate of $165,200.
BACKGROUND There are three basic ways to adjust Member pay.1 Stand-alone legislation has frequently and primarily been used to raise Member pay throughout most of U.S. history, 1789 to the present. However, two other methods are also available. The second method by which Member pay can be increased is pursuant to recommendations from the President, based on those made by a quadrennial salary commission. In 1967, Congress established the Commission on Executive, Legislative, and *
This is an edited, excerpted and augmented edition of a CRS Report for Congress publication, Order Code 971011 GOV, dated September 21, 2007.
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Judicial Salaries to recommend salary increases for top-level federal officials (P.L. 90-206). Three times (in 1969, 1977, and 1987) Congress received pay increases made under this procedure; on three occasions it did not. Effective with passage of the Ethics Reform Act of 1989 (P.L. 10 1-194), the commission ceased to exist. Its authority was assumed by the Citizens’ Commission on Public Service and Compensation. Although the first commission under the 1989 Act was to have convened in 1993, it did not meet. The third method by which the salary of Members can be changed is by annual adjustments. Prior to 1990, the pay of Members, and other top-level federal officials, was tied to the annual comparability increases provided to General Schedule (GS) federal employees. This procedure was established in 1975 (P.L. 94-82). Such increases were recommended by the President, subject to congressional acceptance, disapproval, or modification. Congress accepted five such increases for itself — in 1975, 1979 (partial), 1984, 1985, and 1987 — and declined 10 since this method was authorized (1976, 1977, 1978, 1980, 1981, 1982, 1983, 1986, 1988, and 1989). The Ethics Reform Act of 1989 changed the method by which the annual adjustment is determined for Members and other senior officials, based on a formula using changes in private sector wages and salaries as measured by the Employment Cost Index. Under this revised method, annual adjustments were accepted 11 times (those scheduled for January 1991, 1992, 1993, 1998, 2000, 2001, 2002, 2003, 2004, 2005, and 2006) and denied six times (those scheduled for January 1994, 1995, 1996, 1997, 1999, and 2007).2 The annual adjustment automatically goes into effect unless: 1. Congress statutorily prohibits the adjustment; 2. Congress statutorily revises the adjustment; or 3. the annual base pay3 adjustment of GS employees is established at a rate less than the scheduled increase for Members, in which case Members would be paid the lower rate.4
PENDING JANUARY 2008 MEMBER PAY INCREASE OF 2.7% Under the annual pay adjustment procedure, Members are scheduled to receive a 2.7% increase in January 2008, based upon the formula set forth in the Ethics Reform Act of 1989.5 The scheduled Member increase may be affected by factors related to the pending increase in the base pay of General Schedule (GS) employees. By law, Members may not receive an increase greater than the increase in the base pay of GS employees. The Member pay increase may be lower than 2.7% since the scheduled January 2008 across-the-board increase in the base pay of GS employees under the adjustment formula is 2.5%.6 A scheduled GS annual pay increase may be altered only if the President issues an alternative plan or if Congress legislates a different increase. If the scheduled 2.5% GS base pay adjustment becomes effective, Members will be limited to a 2.5% increase, in lieu of the scheduled 2.7% increase. This limitation means that actions of both the President and Congress may affect Member pay. The President indicated his preference for a 3.0% average increase in the pay of GS employees, in the FY2008 U.S. Budget.7 This recommendation contains both base and
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locality pay increases. Under the Federal Employees Pay Comparability Act (FEPCA) of 1990,8 the President has until September 1 of each year to issue an alternative proposal for GS pay that uses a different percentage increase from the one based on changes in the Employment Cost Index. The President did not issue an alternative plan for the January 2008 annual pay adjustment. Member pay may be affected if Congress alters the scheduled GS annual pay increase. The Financial Services and General Government Appropriations Act for FY2008 (H.R. 2829), as passed by the House of Representatives on June 28, 2007, and as reported to the Senate by the Committee on Appropriations on July 13, 2007, provides a 3.5% average pay adjustment for federal civilian employees. If Congress retains this provision and it is enacted into law, Member pay may be affected by the President’s decision regarding the allocation of this increase between annual and locality pay. As stated above, if the annual base pay adjustment for GS employees is less than the scheduled Member increase, Members would be paid the lower rate. If 1.0% of this increase is allocated for locality pay adjustments, for example, the Member pay increase would then be limited to 2.5%. The President will issue an executive order authorizing the percentage increases in annual and locality pay later in 2007. Table 1 provides a history of the salaries of Members of Congress from 1789 through 2007 in current dollars. For each salary rate, both the effective date and the statutory authority are provided. The salaries shown are the payable salaries, indicating the rate actually paid to Members of Congress. From 1976 to 1983, the salary actually paid to Members was less than the salary to which Members were entitled. The difference arose because Members were entitled to salaries authorized pursuant to the annual pay comparability procedure (P.L. 9482). However, on several occasions Congress did not appropriate funds to pay any or a portion of the new salary increases authorized by P.L. 94-82. Table 1. Salaries of Members of Congress, 1789-2007 Payable Salary (Current Dollars)a $6 per diemb $6 per diem (Representatives) $7 per diem (Senators)b $6 per diem (Representatives and Senators)b $1,500 $6 per diem (Representatives) $7 per diem (Senators)b $6 per diem (Representatives and Senators)b
Effective Date
Statutory Authority
March 4, 1789
1 Stat. 70-71 (September 22, 1789) 1 Stat. 70-71 (September 22, 1789)
March 4, 1795
March 3, 1796
1 Stat. 448 (March 10, 1796)
December 4, 1815 March 3, 1817
3 Stat. 257 (March 19, 1816) 3 Stat. 345 (February 6, 1817)
March 3, 1817
3 Stat. 404 (January 22, 1818)
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Ida A. Brudnick Table 1. Continued
Payable Salary (Current Dollars)a $3,000 $3,000c $5,000 $7,500 $5,000 $7,500 $10,000 $9,000 $8,500 $9,000d $9,500 $10,000 $12,500 $22,500 $30,000 $42,500 $44,600 $57,500 $60,662.50 $69,800
$72,600 $75,100 $77,400 $89,500 $96,600e (Representatives) $98,400e (Senators)
Effective Date
Statutory Authority
December 3, 1855 December 23, 1857 December 4, 1865 March 4, 1871 January 20, 1874 March 4, 1907 March 4, 1925 July 1, 1932 April 1, 1933 February 1, 1934 July 1, 1934 April 4, 1935 January 3, 1947 March 1, 1955 January 3, 1965 March 1, 1969 October 1, 1975 March 1, 1977 October 1, 1979 December 18, 1982 (Representatives) July 1, 1983 (Senators) January 1, 1984 January 1, 1985 January 1, 1987 February 4, 1987 February 1, 1990
11 Stat. 48 (August 16, 1856) 11 Stat. 367 (December 23, 1857) 14 Stat. 323 (July 28, 1866) 17 Stat. 486 (March 3, 1873) 18 Stat. 4 (January 20, 1874) 34 Stat. 993 (February 26, 1907) 43 Stat. 1301 (March 4, 1925) 47 Stat. 401 (June 30, 1932) 48 Stat. 14 (March 20, 1933) 48 Stat. 521 (March 28, 1934) 48 Stat. 521 (March 28, 1934) 49 Stat. 24 (February 13, 1935) 60 Stat. 850 (August 2, 1946) 69 Stat. 11 (March 2, 1955) 78 Stat. 415 (August 14, 1964) 81 Stat. 642 (December 16, 1967) 89 Stat. 421 (August 9, 1975) 81 Stat. 642 (December 16, 1967) 89 Stat. 421 (August 9, 1975) 96 Stat. 1914 (December 21, 1982) 97 Stat. 338 (July 30, 1983) 89 Stat. 421 (August 9, 1975) 89 Stat. 421 (August 9, 1975) 89 Stat. 421 (August 9, 1975) 81 Stat. 642 (December 16, 1967) 103 Stat. 1767-1768 (November 30, 1989) 103 Stat. 1767-1768 (November 30, 1989) 103 Stat. 1768-1769 (November 30, 1989) 103 Stat. 1769 (November 30, 1989) 105 Stat. 450 (August 14, 1991) 103 Stat.1769 (November 30, 1989)
February 1, 1990
$125,100 (Representatives) $101,900 (Senators)
January 1, 1991
$125,100 (Senators) $129,500 (Reps. and Sens.) $133,600 (Reps. and Sens.) $136,700 (Reps. and Sens.) $141,300 (Reps. and Sens.)
August 14, 1991 January 1, 1992
January 1, 1991
January 1, 1993 January 1, 1998 January 1, 2000
103 Stat. 1769 (November 30, 1989) 103 Stat. 1769 (November 30, 1989) 103 Stat. 1769 (November 30, 1989)
Salaries of Members of Congress $145,100 (Reps. and Sens.) $150,000 (Reps. and Sens.) $154,700 (Reps. and Sens.) $158,100 (Reps. and Sens.) $162,100 (Reps. and Sens.) $165,200 (Reps. and Sens.)
January 1, 2001 January 1, 2002 January 1, 2003 January 1, 2004 January 1, 2005 January 1, 2006
331
103 Stat. 1769 (November 30, 1989) 103 Stat. 1769 (November 30, 1989) 103 Stat. 1769 (November 30, 1989) 103 Stat. 1769 (November 30, 1989) 103 Stat. 1769 (November 30, 1989) 103 Stat. 1769 (November 30, 1989)
Notes: a From 1976 to 1983, the salary actually paid to Members was less than the salary to which Members were entitled. The difference arose because Members were entitled to salaries authorized pursuant to the annual pay comparability procedure (P.L. 94-82). However, on several occasions Congress did not appropriate funds to pay any or part of the new salary increases authorized by P.L. 94-82. Accordingly, the salaries shown in this table are the payable rates, indicating the salaries actually paid to Members of Congress. b From 1789 to 1856, Senators and Representatives received a per diem pay rate for their attendance while Congress was in session, except for the period December 1815 — March 1817, when they received $1,500 a year. First established at $6 a day in 1789 for Senators and Representatives, the per diem for Senators was increased to $7 beginning March 4, 1795, pursuant to language in the 1789 act. A March 10, 1796, act returned the per diem for Senators to $6 for each day of attendance while the Senate was in session. Although a law providing for annual salaries was enacted during the 14th Congress, it was repealed on February 6, 1817, and pay reverted to a per diem basis. The per diem rate was raised to $8 in 1818 (retroactive to March 3, 1817) and remained there until 1856, when Members of Congress began to receive annual salaries. A list of all sessions dates and lengths is available at [http://clerk.house.gov/art_history/house_history/ Session_Dates/sessionsAll.html]. c In 1857, Congress provided for pay at the rate of $250 per month while in session, or a maximum of $3,000 per annum. d The act authorized the restoration of pay as of February 1, 1934, and the restoration of pay as of July 1, 1934. e The Ethics Reform Act of 1989 (103 Stat. 1767-1768) increased pay for Representatives and Senators at different rates. The pay of Representatives was increased to reflect the previously denied 1989 and 1990 pay adjustments (4.1% and 3.6%), compounded at 7.9%, effective February 1, 1990. The act further provided for a 25% increase in Representatives’ pay, effective January 1, 1991. As a result, the pay of Representatives increased from $89,500 to $96,600 on February 1, 1990, and increased to $125,100 on January 1, 1991. The pay of Senators was increased to reflect the previously denied 1988, 1989, and 1990 comparability pay adjustments (2%, 4.1%, and 3.6%), compounded at 9.9%, effective February 1, 1990. As a result, the pay of Senators increased from $89,500 to $98,400 on February 1, 1990. The Ethics Act did not provide for any other pay increase for Senators, as it did in providing a 25% increase for Representatives. The reason is that Senators elected to deny themselves the 25% increase while retaining the ability to receive honoraria. Subsequently, the Senate voted to increase its pay rate to that of Representatives and to prohibit receipt of honoraria by Senators, effective August 14, 1991. As a result, Senate pay increased from $101,900 to $125,100 per annum.
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ENDNOTES 1
This chapter was originally written by Paul E. Dwyer, formerly a Specialist in American National Government at CRS, who has since retired. 2 For additional information on these adjustments, see CRS Report 97-6 15, Salaries of Members of Congress: Congressional Votes, 1990-2007, by Ida A. Brudnick. 3 Base pay is the pay rate before locality pay is added. 4 P.L. 103-356, 108 Stat. 3410-33411, October 13, 1994. 5 The annual Member pay adjustment was determined by a formula using the Employment Cost Index (private industry wages and salaries, not seasonally adjusted), based on the percentage change reflected in the quarter ending December 31 for the two preceding years, minus 0.5%. The 2.7% adjustment was determined by taking the percentage increase in the Index between the quarters ending December 2005 and December 2006, which was 3.2%, and subtracting 0.5%. 6 The annual GS pay adjustment was determined by a formula using the Employment Cost Index (private industry wages and salaries, not seasonally adjusted), based on the percentage change reflected in the quarter ending September 30 for the two preceding years, minus 0.5%. The 2.5% adjustment was determined by taking the percentage increase in the Index between the quarters ending September 2005 and September 2006, which was 3.0%, and subtracting 0.5%. For additional information, see CRS Report RL3 3732, Federal White-Collar Pay: FY2008 Salary Adjustments, by Barbara Schwemle. 7 U.S. Executive Office of the President, Office of Management and Budget, Budget of the United States Government Fiscal Year 2008; Analytical Perspectives (Washington: GPO, 2006), p. 168. 8 P.L. 101-509, Nov. 5, 1990, 104 Stat. 1427.
In: Congress of the U.S: Commitees, Rules and Procedures ISBN 978-1-60456-416-7 Editor: Sela G. Thomason © 2009 Nova Science Publishers, Inc.
Chapter 19
CONGRESSIONAL BUDGET ACTIONS IN 2005* Bill Heniff Jr. SUMMARY During the first session of the 109th Congress, the House and Senate considered many different budgetary measures. Most of them pertained to fiscal year (FY) 2006 and beyond, but some made adjustments to the budget for FY2005. This chapter describes House and Senate actions on major budgetary legislation within the framework of the congressional budget process and other procedural requirements. Congress typically begins its annual budget process once the President submits his budget for the upcoming fiscal year. President George W. Bush submitted his FY2006 budget to Congress on February 7, 2005. The congressional budget process provides for an annual concurrent resolution on the budget to serve as a framework for the consideration of budgetary legislation. The budget resolution sets forth aggregate spending and revenue levels, and spending levels by major functional area, for at least five fiscal years. Budget resolution policies are implemented through the enactment of reconciliation bills, revenue and debt-limit legislation, and appropriations and other spending measures. They are enforced by points of order that may be raised when legislation is pending on the House and Senate floor. The House considered its version of the FY2006 budget resolution (H.Con.Res. 95) over a period of two days, March 16 and 17. After considering and rejecting four amendments the House agreed to H.Con.Res. 95 by a vote of 218-214 on March 17. The Senate considered its version (S.Con.Res. 18) over a period of four days, March 14-17. After considering several amendments, adopting most and rejecting others, the Senate agreed to S.Con.Res. 18, as amended, by a vote of 51-49 on March 17. The House and Senate, subsequently, agreed to the conference report to the FY2006 budget resolution (H.Rept. 109-62) by votes of 214-211 and 52-47, respectively, on April 28.
*
This is an edited, excerpted and augmented edition of a CRS Report for Congress publication, Order Code RL32791, dated January 20, 2006.
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The FY2006 budget resolution provided for three reconciliation measures: (1) to cut direct (or mandatory) spending by about $35 billion; (2) to cut taxes by $70 billion; and (3) to increase the statutory debt limit by $781 billion. When the Congress adjourned sine die on December 22, 2005, the House and Senate had passed but had not completed action on spending (S. 1932/H.R. 4241) and tax (H.R. 4297/S. 2020) reconciliation measures. No action was taken on a debt-limit reconciliation measure. When FY2006 began on October 1, the House had passed 11, and the Senate had passed eight, of the regular appropriations acts for FY2006. Only two of these had been signed into law. Congress completed action on the regular appropriations acts for FY2006 when the Senate, on December 21, agreed to the conference reports to the Defense Appropriations Act (H.R. 2863, H.Rept. 109-359) and the Labor, Health and Human Services, and Education Appropriations Act (H.R. 3010, H.Rept. 109-337).
CONCLUDING ACTIONS The Congress adjourned sine die on December 22, 2005. Prior to adjourning, the Congress completed action on the regular appropriations acts for FY2006 when the Senate, on December 21, agreed to the conference reports to the Defense Appropriations Act (H.R. 2863, H.Rept. 109-359) and the Labor, Health and Human Services, and Education Appropriations Act (H.R. 3010, H.Rept. 109-337). On December 30, President Bush signed H.R. 2863 and H.R. 3010 into law (P.L. 109148 and P.L. 109-149, respectively), thereby bringing action on the FY2006 regular appropriations acts to a close. The Congress, however, did not complete action on the three reconciliation measures provided for in the FY2006 budget resolution. On December 19, 2005, the House agreed to the conference report on the spending reconciliation measure (S. 1932, the Deficit Reduction Act of 2005). In the Senate, however, the conference report failed when a point of order under the Byrd rule (Section 313 of the Budget Act) against three provisions in the conference report was sustained. Subsequently, the Senate on December 21 agreed to a motion to concur in the House amendment to S. 1932 with a further amendment containing the text of the conference report with the violating provisions stricken. The House did not act on the further amendment to S. 1932 before adjourning sine die. The House is expected to consider the further amendment some time after it returns for the second session of the 109th Congress the week of January 31, 2006. The Senate passed the revenue reconciliation measure (S. 2020, the Tax Relief Act of 2005) in the early morning of November 18. The House passed its revenue reconciliation measure (H.R. 4297, the Tax Relief Extension Reconciliation Act of 2005) on December 8. Before adjourning sine die, the Senate and the House did not take any further action on these revenue reconciliation measures. Neither the House or the Senate took action on a reconciliation measure changing the statutory limit on the public debt.
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INTRODUCTION During the first session of the 109th Congress, the House and Senate considered many different budgetary measures. Most of them pertained to FY2006 (referred to as the "budget year") and beyond. In addition, some made adjustments to the budget for FY2005 (referred to as the "current year"). This chapter describes House and Senate action on major budgetary legislation within the framework of the congressional budget process and other procedural requirements.1 Within this procedural framework, Congress considered various budget-related legislation in the context of what was arguably an unfavorable budget outlook. According to the Office of Management and Budget (OMB) and the Congressional Budget Office (CBO), current budget projections under existing law, without any legislative changes, showed annual deficits in the unified budget (i.e., including federal funds and trust funds) in each of the next several fiscal years. For example, at the beginning of the year, OMB projected that the FY2005 unified budget deficit would be $390 billion ($427 billion if the supplemental request is included), with deficits continuing but declining through FY2010. Similarly, CBO projected that the FY2005 unified budget deficit would be $368 billion, with a surplus not returning until FY2012.2
OVERVIEW OF THE CONGRESSIONAL BUDGET PROCESS The congressional budget process consists of the consideration and adoption of spending, revenue, and debt-limit legislation within the framework of an annual concurrent resolution on the budget.
The President's Budget Congress begins its budget process once the President submits his budget. The President is required by law to submit a comprehensive federal budget no later than the first Monday in February (31 U.S.C. 1105). The President's budget includes estimates of direct spending and revenues under existing laws (with certain adjustments), as well as estimates of any proposed legislative changes affecting direct spending and revenues. In addition, the President's budget contains requests, in specific dollar amounts, for discretionary spending (i.e., funds controlled through the appropriations process) for the upcoming fiscal year. Although Congress is not bound by the President's budget, congressional action on spending and revenue legislation often is influenced by his recommendations, as well as subsequent budgetary activities by the President during the year. OMB assists the President in formulating and coordinating his budget policies and activities. On February 7, 2005, President Bush submitted his FY2006 budget to Congress. As is the usual practice, the President's budget was submitted as a multi-volume set consisting of a main document that includes the President's budget message and information on his 2006 proposals (Budget) and supplementary documents that provide special budgetary analyses (Analytical Perspectives), historical budget information (Historical Tables), and detailed
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account and program level information (Appendix), among other things.3 In addition, on February 11, OMB made available a supplementary document, Major Savings and Reforms in the President's 2006 Budget, outlining program terminations and reductions proposed in the President's FY2006 budget. The President may revise his budget request any time during the year. Revisions requested before Congress has acted on the initial request are submitted as budget amendments. In addition, the President also may request supplemental appropriations for the current fiscal year for unanticipated needs. During 2005, President Bush submitted five budget amendments, five requests for supplemental appropriations for FY2005, one request for supplemental appropriations for FY2006, one request reallocating supplemental appropriations, and one request for a package of rescissions (see section "Discretionary Spending," below).4 By July 15 of each year, the President is required to submit an update of his budget, commonly referred to as the mid-session review.5 On July 13, 2005, President Bush submitted his Mid-Session Review of the budget to Congress. The report contains revised estimates of the budget deficit/surplus, receipts, outlays, and budget authority for FY2005 through FY2010, reflecting changed economic conditions and assumptions and congressional actions. Table 1. The Congressional Budget Process Timetable Date First Monday in February February 15 Six weeks after President submits budget April 1 April 15 May 15 June 10 June 15 June 30 July 15 October 1
Action President submits budget to Congress. Congressional Budget Office submits economic and budget outlook report to Budget Committees. Committees submit views and estimates to Budget Committees. Senate Budget Committee reports budget resolution. Congress completes action on budget resolution. Annual appropriations bills may be considered in the House, even if action on budget resolution has not been completed. House Appropriations Committee reports last annual appropriations bill. House completes action on reconciliation legislation (if required by budget resolution). House completes action on annual appropriations bills. President submits mid-session review of his budget to Congress. Fiscal year begins.
Source: Section 300 of the Congressional Budget Act of 1974, as amended (P.L. 93-344, 2 U.S.C. 631).
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The Budget Resolution: Implementation and Enforcement The Congressional Budget Act of 1974 (Titles I-IX of P.L. 93-344, 88 Stat. 297-332) established the congressional budget process, including a timetable for congressional action on budgetary legislation (see Table 1). The congressional budget process provides for an annual concurrent resolution on the budget to serve as a framework for the consideration of budgetary legislation. The budget resolution sets forth aggregate spending and revenue levels, and spending levels by major functional area, for at least five fiscal years. As a concurrent resolution, the budget resolution is not presented to the President for his signature, and thus does not become law. Instead, it is an agreement between the House and Senate on a congressional budget plan, providing a framework for subsequent legislative action on the budget during each congressional session. Budget resolution policies are implemented through the enactment of revenue and debtlimit legislation, appropriations and other spending measures, and, if required by the budget resolution, one or more reconciliation bills (see Table 2). Congress enforces budget resolution policies through points of order on the floor of each chamber and the reconciliation process. For example, any legislation that would cause the aggregate levels to be violated is prohibited from being considered. Further, the total budget authority and outlays set forth in the budget resolution are allocated among the House and Senate committees having jurisdiction over specific spending legislation. Any legislation, or amendment, that would cause these committee allocations to be exceeded is prohibited. Finally, the House and Senate Appropriations Committees subdivide their allocations among their respective subcommittees. A point of order may be raised against any appropriations act, or amendment, that would cause one of these subdivisions to be exceeded.6 The budget resolution also contains spending levels by functional categories (e.g., national defense), but these are not enforceable. Congress also may use reconciliation legislation (discussed further below) to enforce the direct spending, revenue, and debt-limit provisions of a budget resolution. In addition, the Senate is constrained by limits on discretionary spending and a "pay-asyou-go" (PAYGO) requirement for direct spending and revenue legislation, which are enforced through points of order while legislation is being considered on the Senate floor (both explained further below). The House does not provide for similar points of order.
Expired Budget Enforcement Procedures For FY1991 through FY2002, Congress and the President also were constrained by statutory limits on discretionary spending and a statutory PAYGO requirement for direct spending and revenue legislation.7 Unlike the enforcement procedures associated with the budget resolution, which are employed while legislation is considered on the floor of each chamber, the discretionary spending limits and PAYGO requirement were enforced by a sequestration process, generally after legislative action for a session of Congress ended. If either of these budget constraints were violated, then the President was required to order a sequestration, which involved largely across-the-board spending cuts in non-exempt programs, by the amount of any violation. These budget enforcement mechanisms, however, expired at the end of FY2002 (i.e., September 30, 2002).
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President Bush, among others, has proposed setting new discretionary spending limits and restoring a modified version of the PAYGO requirement, in addition to several other budget process reforms.8
BUDGET RESOLUTION The Congressional Budget Act, as amended, establishes the concurrent resolution on the budget as the centerpiece of the congressional budget process.9 The budget resolution sets forth aggregate spending and revenue levels, and spending levels by major functional area, for at least five fiscal years. Once adopted, it provides the framework for subsequent action on budget-related legislation. Following the submission of the President's budget early in the year, Congress begins formulating the budget resolution. The House and Senate Budget Committees are responsible for developing and reporting the budget resolution. In formulating it, the Budget Committees hold hearings and receive testimony from Members of Congress and representatives of federal departments and agencies, the general public, and national organizations. Two regular hearings include separate testimony from the CBO director and the OMB director. On February 1, 2005, CBO Director Douglas Holtz-Eakin presented CBO's baseline budget projections for FY2006- FY2015 during testimony to the Senate Budget Committee.10 On February 8 and 9, OMB Director Joshua B. Bolten provided an overview of President Bush's budget request before the House and Senate Budget Committees, respectively.11 The congressional budget resolution, like the President's budget, is based on budget baselines (see Table 3).12 The budget baseline is a projection of federal revenue, spending, and deficit or surplus levels based upon current policies, assuming certain economic conditions. Baseline projections provide a benchmark for measuring the budgetary effects of proposed policy changes. The President's budget baseline, referred to as current services estimates, is included in the budget documents submitted to Congress.13 The President's baseline usually differs from CBO's baseline, referred to as baseline budget projections, because of different economic and technical assumptions. In preparation for action on the FY2006 budget resolution, on January 25, 2005, CBO released its annual report on budget baseline projections, The Budget and Economic Outlook: Fiscal Years 2006-2015.14 Subsequently, on March 8, CBO released its revised budget baseline projections in its report An Analysis of the President's Budgetary Proposals for Fiscal Year 2006. The report also contains estimates of the President's proposals using CBO' s economic and technical assumptions, and provides an analysis of the potential macroeconomic effects of the President's budgetary proposals. Also in preparation for upcoming congressional budget actions, CBO released its periodic report on the budgetary implications of policy choices, Budget Options, on February 15. The report provides background information and the estimated 10- year budgetary effects of 185 spending options and 53 revenue options.
Table 2. Mapping Spending and Revenue Legislation through the Congressional Budget Process
The annual budget resolution functions as the centerpiece of the congressional budget process by setting forth aggregate spending and revenue levels for at least five fiscal years. Budget resolution policies are implemented through the enactment of appropriations and other spending measures, revenue legislation, and, if required by the budget resolution, one or more reconciliation bills. Each of these types of measures follows a separate process but must comply with the budget policies set forth in the budget resolution.
Discretionary spending policies in the budget resolution are implemented through the appropriations process. Annual Appropriations Process: Congress considers and adopts each year regular appropriations acts providing budgetary authority for the upcoming fiscal year. Each of the appropriations subcommittees holds hearings and drafts a r e g u l a r appropriations act.
Full Appropriations Committee subdivides its spending allocation [302(a) allocation] among its s ubcommitte e s [302(b) allocations].
Full c ha mb e r c onsiders and adopts each appropriations act.
Full Appropriations Committee reports each appropriations act, which must not exceed the respective 302(b) allocation.
House and Senate resolve differences in c o nfe r e nc e committees.
House and Senate separately agree to conference report to each appropriations act. From time to time, Congress merges two or more regular appropriations acts into an omnibus appropriations act.
President signs each appropriations act, or an omnibus appropriations act, into law.
Mandatory spending, revenue, and debt-limit policies in the budget resolution are implemented through the regular legislative process or the reconciliation process. Regular legislative process: Congress may consider and adopt individual mandatory spending, revenue, or debt-limit legislation. Each legislative committee may hold hearings and c o ns id e r l e g i s l a t i o n referred to it or draft original legislation.
Each committee may report to its parent chamber mandatory spending or revenue legislation, which must not (1) cause direct spending under the committee’s jurisdiction to exceed its spending ceiling [302(a) allocation]; (2) cause revenues to fall below the revenue floor set forth in the budget resolution; or (3) violate the Senate’s PAYGO requirement.
Full chamber considers ind ivid ua l ma nd atory spending or revenue legislation.
House and Senate resolve differences in conference committees.
House and Senate separately agree to conference reports to individ ua l ma ndatory s p e n d ing o r r e v e n u e legislation.
President signs individual mandatory spending or revenue legislation into law.
Reconciliation Process: Congress may include in the budget resolution reconciliation instructions directing one or more committees to recommend legislative changes to existing law in order to bring mandatory spending, revenues, the debt-limit, or a combination of these, into compliance with the budget resolution policies. Each legislative committee directed to do so recommends legislative changes to existing law to achieve the mandatory spending or revenue levels set forth in the budget resolution and submits these reconciliation recommendations to the Budget Committee by a date certain.
Budget Committee packages the committees’ legislative recommendations into one or more omnibus reconciliation measures, “without any substantive revision.”
Full chamber considers a n y o m n i b u s reconciliation measure under special procedures that limit the measure’s contents and floor debate.
House and Senate resolve differences in conference committee.
House and Senate separately agree to conference report to omnibus reconciliation legislation.
President signs o m n i b u s reconciliation legislation into law.
Table 3. Budget Baselines, FY2005-FY2010 (in billions of dollars)
FY2005
FY2006
FY2007
FY2008
FY2009
FY2010
Office of Management and Budget — July 2005 [revised current services estimates] Outlays 2,471 2,571 2,666 2,767 2,884 3,031 Revenues Surplus/Deficit (-) 2,140 2,273 2,429 2,598 2,744 2,914 -331 -299 -237 -169 -140 -117 On-budget -507 -497 -445 -398 -385 -382 Off-budgeta 176 198 208 229 246 265 Congressional Budget Office — August 2005 [revised budget baseline projections] Outlays Revenues Surplus/Deficit (-) On-budget Off-budgeta
2,473 2,142 -331 -507 176
2,595 2,280 -314 -503 189
2,721 2,396 -324 -528 203
2,860 2,526 -335 -554 219
2,997 2,675 -321 -556 234
3,134 2,817 -317 -564 248
Total FY2006-FY2010
13,919 12,958 -962 -2,107 1,146 14,306 12,695 -1,612 -2,706 1,094
Sources: Office of Management and Budget, Mid-Session Review, Budget of the United States Government, Fiscal Year 2006 (Washington: GPO, 2005), p. 42; Congressional Budget Office, The Budget and Economic Outlook: An Update, Aug. 2005, p. 4. Note: Details may not add to totals due to rounding. a Off-budget surpluses comprise surpluses in the Social Security trust funds as well as the net cash flow of the Postal Service.
Table 4. Comparison of Selected Components of the House, Senate, and Conference Versions of the FY2006 Budget Resolution (amounts in millions of dollars for FY2006, except where noted)
Total revenues Total spending Budget authority (discretionary) Outlays (discretionary) Deficit (on-budget) Debt subject to limit Reconciliation directives: deadline; number of committees involved; total amount of changes
Reserve or contingency funds (#) Declaratory provisions (#)
House version (H.Con.Res. 95) 1,589,905 2,135,290 (843,020) 2,154,404 (917,053) -564,499 8,635,0008 Two reconciliation measures: Submissions to slow the growth in mandatory spending and to achieve deficit reduction (1) September 16, 2005; (2) nine House committees; -(3) 7,847 (FY2006); -68,557 (FY2006-FY2010) Submission providing for changes in revenue (1) June 24, 2005; (2) one House committee; (3) -16,623 (FY2006); -45,000 (FY2006-FY2010)
1 1
Senate version (S.Con.Res. 18) 1,588,646 2,141,801 (848,063) 2,145,684 (916,405) -557,038 8,637,186 Three reconciliation measures: Spending reconciliation instructions (1) June 6, 2005; (2) six Senate committees; (3) -2,460 (FY2006); -17,006 (FY2006-FY2010) Revenue reconciliation instructions (1) September 7, 2005; (2) one Senate committee; (3) -19,016 (FY2006); -128,580 (FY2006-FY2010) Increase in statutory debt limit (1) September 16, 2005; (2) one Senate committee; +446,464 16 28
Conference version (H.Con.Res. 95) 1,589,892 2,144,384 (843,020) 2,161,420 (916,836) -571,528 8,645,000 Three reconciliation measures: Spending reconciliation instructions (1)September 16, 2005; (2)eight House and eight Senate committees; (3)-1,519 (FY2006); -34,658 (FY2005-FY2010) Revenue reconciliation instructions (1)September 23, 2005; (2)one House and one Senate committee; (3)-11,000 (FY2006); -70,000 (FY2006-FY2010) Increase in statutory debt limit (1)September 30, 2005; (2)one House and one Senate committee; (3)+781,000 10 7
Notes: Amounts are for FY2006, except where noted. The total budget amounts in the budget resolution do not include the off-budget financial transactions of the Social Security Trust Funds and the U.S. Postal Service.
Table 5. Reconciliation Directives to House and Senate Committees Contained in the FY2006 Budget Resolution House Committee
Amount of Spending, Revenue, or Deficit Increase (+) or Decrease (-)a (in millions of dollars) Spending reconciliation instructions (originally due by September 16)b
Senate Committee
Amount of Spending, Revenue, or Deficit Increase (+) or Decrease (-)a (in millions of dollars)
Agriculture
Agriculture, Nutrition, and Forestry Banking, Housing, and Urban Affairs Commerce, Science, and Transportation Energy and Natural Resources
FY2006: -173 (0) FY2006-2010: -3,000 (0) FY2006: -30 (0) FY2006-2010: -470 (0)
Financial Services
FY2006: -173 (0) FY2006-2010: -3,000 (0) FY2005-2006: -992 (0) FY2005-2010: -12,651 (0) FY2006: -2 (0) FY2006-2010: -14,734 (0) FY2006: -30 (0) FY2006-2010: -470 (0)
Judiciary
FY2006: -60 (0) FY2006-2010: -300 (0)
Environment and Public Works
FY2006: -4 (0) FY2006-2010: -27 (0)
Resources
FY2006-2010: -2,400 (0)
Finance
FY2006-2010: -10,000 (0)
Transportation and Infrastructure Ways and Means
FY2006: -12 (0) FY2006-2010: -103 (0)
Health, Education, Labor, and Pensions Judiciary
FY2005-2006: -1,242 (0) FY2005-2010: -13,651 (0) FY2006: -60 (0) FY2006-2010: -300 (0)
Education and the Workforce Energy and Commerce
FY2006: -250 (D) FY2006-2010: -1,000 (D) Revenue reconciliation instructions (originally due by September 23)b Ways and Means
FY2006: -10 (0) FY2006-2010: -4,810 (0) FY2006-2010: -2,400 (0)
FY2006: -11,000 (R) FY2006-2010: Finance 70,000 (R) Statutory debt limit reconciliation instructions (originally due by September 30)b
FY2006: -11,000 (R) FY2006-2010: -70,000 (R)
Ways and Means
Increase statutory limit on the public debt by 781,000.
Increase statutory limit on the public debt by 781,000.
Finance
Source: U.S. Congress, Committee on Conference, Concurrent Resolution on the Budget for Fiscal Year 2006, conference report to accompany H.Con.Res. 95, 109' Cong., 1s` sess., H.Rept. 109-62 (Washington: GPO, 2005) pp. 11-14. a The budgetary components are represented in this column by the following initials: 0=outlays; R=revenues; and D=deficit. The spending directives call for changes in laws providing direct spending. Also, as noted, the reconciliation directives instruct the House Ways and Means Committee and the Senate Finance Committee to report legislation to change the statutory limit on the public debt. b During the week of September 12, 2005, the chairmen of the Senate and House Budget Committees announced a delay in the reconciliation process so that authorizing committees could devote their attention to Hurricane Katrina-related legislation. See text of report for further information on the timing of the reconciliation measures.
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Another source of input comes from the "views and estimates" of congressional committees with jurisdiction over spending and revenues. Within six weeks after the President's budget submission, each House and Senate committee is required to submit views and estimates of budget matters under its jurisdiction to its respective Budget Committee. These views and estimates, frequently submitted in the form of a letter to the chair and ranking minority Member of the Budget Committee, typically include comments on the President's budget proposals and estimates of the budgetary impact of any legislation likely to be considered during the current session of Congress. The Budget Committees are not bound by these recommendations. The views and estimates often are printed in the committee report accompanying the budget resolution in the Senate and compiled as a separate committee print in the House. The budget resolution was designed to provide a framework for making budget decisions, leaving specific program determinations to House and Senate Appropriations Committees and other committees with spending and revenue jurisdiction. In many instances, however, particular program changes are considered when the budget resolution is formulated. Program assumptions sometimes are referred to in the reports of the House and Senate Budget Committees and usually are discussed during floor action. Although these program changes are not binding, committees may be strongly influenced by the recommendations when formulating appropriations bills, reconciliation measures, or other budgetary legislation. On March 9, 2005, the House Budget Committee marked up and voted to report the House version of the FY2006 budget resolution (H.Con.Res. 95, H.Rept. 109-17) by a vote of 22-15. During markup, the committee considered 25 amendments to the chairman's mark: one amendment was adopted; 20 amendments were rejected; and four amendments were withdrawn.15 On March 10, the Senate Budget Committee marked up and voted to report the Senate version of the FY2006 budget resolution (S.Con.Res. 18, S.Prt. 109-18) by a vote of 12-10. During markup, the committee considered 26 amendments to the chairman's mark: seven amendments were adopted; 16 amendments were rejected; and three amendments were withdrawn.16 The congressional budget process timetable sets April 15 as a target date for final adoption of the budget resolution.17 The Budget Act prohibits the consideration of spending, revenue, or debt-limit legislation for the upcoming year until the budget resolution has been adopted, unless the rule is waived or set aside. The House and Senate consider the budget resolution under procedures generally intended to expedite final action. In the House, the budget resolution usually is considered under a special rule, limiting the time of debate and allowing only a few amendments, as substitutes to the entire resolution. On March 16 and 17, the House considered H.Con.Res. 95 under a structured rule (H.Res. 154, H.Rept. 109-19) reported by the House Rules Committee. The special rule provided for the consideration of H.Con.Res. 95 and made in order only the four amendments, three of which were amendments in the nature of a substitute, printed in the House Rules Committee report. The House agreed to H.Res. 154 by a vote of 228-196 after agreeing to order the previous question by a vote of 230-202. During consideration of the FY2006 budget resolution, the House rejected the four amendments made in order by the special rule. The House subsequently agreed to H.Con.Res. 95 by a vote of 218-214.18 The Senate considers the budget resolution under the procedures set forth in the Budget Act, sometimes as modified by a unanimous consent agreement. Debate on the initial consideration of the budget resolution, and all amendments, debatable motions, and appeals,
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is limited to 50 hours. Amendments, motions, and appeals may be considered beyond this time limit, but without debate. (Consideration of the conference report is limited to 10 hours.) On March 10, before the Senate began consideration of the FY2006 budget resolution, it agreed by unanimous consent to limit the debate to 45 hours.19 The Senate considered its version of the FY2006 budget resolution on March 14, 15, 16, and 17. During consideration of S.Con.Res. 18, the Senate considered 73 amendments: 48 amendments were adopted; 24 amendments were rejected; and one amendment was withdrawn. On March 17, the Senate agreed to S.Con.Res. 18, as amended, by a 51-49 vote.20 After resolving the differences between their respective versions, the House and Senate agreed to the conference report to accompany the FY2006 budget resolution (H.Con.Res. 95, H.Rept. 109-62) by votes of 214-211 and 52-47, respectively, on April 28.21 Table 4 provides a comparison of several components contained in the House, Senate, and conference versions of the FY2006 budget resolution.
RECONCILIATION LEGISLATION Congress may implement changes to existing law related to direct spending, revenues, or the debt limit through the reconciliation process, under Section 310 of the Budget Act.22 The reconciliation process has two stages. First, Congress includes reconciliation directives in a budget resolution directing one or more committees in each chamber to recommend changes in statute to achieve the levels of direct spending, revenues, debt limit, or a combination thereof, agreed to in the budget resolution. Second, each instructed committee develops legislative recommendations to meet its reconciliation directives and reports its legislative recommendations to its respective chamber directly or transmits such recommendations to its respective budget committee. Section 310(b) of the Congressional Budget Act of 1974 (Titles I-IX of P.L. 93-344, 88 Stat. 297332) specifies two options for the submission of legislative recommendations to comply with reconciliation directives: (1) if one committee is instructed, the committee reports its legislative recommendations to its parent chamber directly; or (2) if two or more committees are instructed, the committees submit their legislative recommendations to their respective Budget Committee. In the latter case, the legislative language recommended by committees is packaged "without any substantive revision" into one or more budget reconciliation bills, as set forth in the budget resolution, by the House and Senate Budget Committees. As indicated in Table 4, the conference report to the FY2006 budget resolution (H.Con.Res. 95, H.Rept. 109-62) provides for three reconciliation measures: (1) to cut direct (or mandatory) spending by about $35 billion; (2) to cut taxes by $70 billion; and (3) to increase the statutory debt limit by $781 billion. Table 5 provides further information on the reconciliation directives to the House and Senate committees. (For an extensive discussion of reconciliation legislation in 2005, see CRS Report RL33132, Budget Reconciliation Legislation in 2005, by Robert Keith.) During the week of September 12, 2005, the chairmen of the Senate and House Budget Committees announced a delay in the reconciliation process so that authorizing committees could devote their attention to Hurricane Katrina-related legislation.23 Senator Judd Gregg, Chairman of the Senate Budget Committee (SBC), announced that the SBC would report the
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omnibus spending reconciliation measure on October 26. Similarly, Representative Jim Nussle, Chairman of the House Budget Committee (HBC), informed authorizing committees that the HBC intended to report the omnibus spending reconciliation measure the week of October 24, which was later extended to the week of October 31. Once the reconciliation legislation is reported in the House or Senate, consideration is governed by special procedures. These procedures serve to limit what may be included in reconciliation legislation, prohibit certain amendments, and encourage its completion in a timely fashion. In the House, as with the budget resolution, reconciliation legislation usually is considered under a special rule, establishing the time allotted for debate and what amendments will be in order. In the Senate, debate on a budget reconciliation bill, and on all amendments, debatable motions, and appeals, is limited to not more than 20 hours. After the 20 hours of debate has been reached, consideration of amendments, motions, and appeals may continue, but without debate. In both chambers, the Budget Act requires that amendments to reconciliation legislation be germane and not increase the deficit. Also, the Budget Act prohibits the consideration of reconciliation legislation, or any amendment to a reconciliation bill, recommending changes to the Social Security program. Finally, in the Senate, Section 313 of the Budget Act, commonly referred to as the Byrd rule, prohibits extraneous matter in a reconciliation bill.24
Spending Reconciliation Legislation Instructed Senate committees marked up and voted to submit their legislative recommendations pursuant to the reconciliation directives in the FY2006 budget resolution to the Senate Budget Committee between October 18 and 25.25 The Senate Budget Committee, on October 26, voted to report an original Senate bill, S. 1932, the Deficit Reduction Omnibus Reconciliation Act of 2005, incorporating the committee recommendations, without any substantive revision, by a vote of 12-10 (S.Prt. 109-37). The Senate considered S. 1932 for four days from October 31 to November 3. During consideration of the spending reconciliation measure, the Senate considered 42 amendments: 20 amendments were adopted; nine amendments were rejected; nine amendments fell on points of order; and four amendments were withdrawn. On November 3, the Senate passed S. 1932, as amended, by a 52-47 vote.26 As passed by the Senate, according to CBO, the spending reconciliation measure was projected to reduce direct spending by $34.6 billion over the five-year period of FY2006- 2010.27 In the House, instructed committees marked up and voted to submit their legislative recommendations pursuant to reconciliation directives in the FY2006 budget resolution to the House Budget Committee between September 29 and October 28.28 The House Budget Committee, on November 3, voted to report an original House bill, H.R. 4241, the Deficit Reduction Act of 2005, incorporating the committee recommendations, without any substantive revision, by a vote of 21-17 (H.Rept. 109-276). On November 17, the House considered H.R. 4241 under a closed rule (H.Res. 560, H.Rept. 109-303) reported by the House Rules Committee. The House agreed to H.Res. 560 by voice vote, after agreeing to an amendment to the resolution by Representative Adam Putnam by voice vote.29 The special rule provided for the consideration of H.R. 4241 and that an amendment printed in the report of the House Rules Committee, as modified by a
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provision in the special rule, be considered as adopted. Later that day, the House passed the spending reconciliation measure, as amended, by a vote of 217-215. Subsequently, to facilitate conference action, the House agreed by unanimous consent to pass S. 1932, the Senate's spending reconciliation bill, as amended by the text of H.R. 4241, as passed by the House.30 According to CBO, the House-passed spending reconciliation measure was projected to reduce direct spending by $49.9 billion over the five-year period of FY20062010.31 The Senate and House agreed to resolve the legislative differences in the two versions of the spending reconciliation measure (S. 1932) in a conference committee, appointing conferees on December 15 and 16, respectively. A conference report (H.Rept. 109-362) on S. 1932, renamed the Deficit Reduction Act of 2005, was filed on December 19 (legislative day, December 18). The House agreed to the conference report on December 19 (legislative day, December 18) by a vote of 212-206.32 During the consideration of the conference report in the Senate, however, a point of order under the Byrd rule (Section 313 of the Budget Act) was raised against four provisions in the conference report. A motion to waive the point of order was rejected by a 52-48 vote, and the point of order subsequently was sustained against three of the four provisions in the conference report. As prescribed by the Budget Act, upon the ruling of the presiding officer sustaining the point of order under the Byrd rule, the Senate proceeded to consider a motion to concur in the House amendment to S. 1932 with a further amendment containing the text of the conference report with the violating provisions stricken. The Senate agreed to the motion by a 51-50 vote (with Vice President Richard B. Cheney voting in the affirmative to break the tie) on December 21, 2005.33 Before adjourning sine die, the House did not act on the further amendment to S. 1932. The House is expected to consider the further amendment some time after it returns for the second session of the 109th Congress the week of January 31, 2006.
Revenue Reconciliation Legislation After completing initial action on its version of the spending reconciliation measure, both chambers turned to legislation implementing the revenue component of the reconciliation directives in the FY2006 budget resolution. On November 15, 2005, the Senate Finance Committee marked up and voted to report an original Senate bill, S. 2020, the Tax Relief Act of 2005, by a vote of 146 (without written report). The Senate considered S. 2020 on November 16, 17, and 18, passing the measure in the early morning of November 18 by a 64-33 vote. During consideration of the revenue reconciliation measure, the Senate considered 30 amendments: seven amendments were adopted; four amendments were rejected; 18 amendments fell on points of order; and one amendment was withdrawn.34 As passed by the Senate, according to the Joint Committee on Taxation (JCT), S. 2020 is projected to reduce revenues by $57.8 billion over the five-year period of FY20062010.35 In the House, on November 15, the Ways and Means Committee marked up and voted to report H.R. 4297, the Tax Relief Extension Reconciliation Act of 2005, with an amendment in the nature of a substitute, by a vote of 24-15 (H.Rept. 109-304). On December 8, the House considered H.R. 4297 under a structured rule (H.Res. 588, H.Rept. 109-330) reported by the House Rules Committee.36 The special rule provided for the
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consideration of H.R. 4297, provided that the amendment in the nature of a substitute recommended by the Ways and Means Committee be considered as adopted, and made in order an amendment in the nature of a substitute offered by Representative Charles Rangel. During the consideration of H.R. 4297, the House rejected the amendment offered by Representative Rangel by a 192-239 vote and a motion to recommit with instructions also offered by Representative Rangel by a 193-235 vote. Subsequently, the House passed the revenue reconciliation measure, as amended, by a vote of 234-197.37 As passed by the House, according to the JCT, H.R. 4297 is projected to reduce revenues by $56.1 billion over the five-year period of FY2006-2010.38
Statutory Debt Limit Reconciliation Legislation During the first session of the 109th Congress, neither the House or the Senate took action on a reconciliation measure changing the statutory limit on the public debt.
Individual income taxes ($809.0 billion)
43%
Corporate income taxes ($189.4 billion) Excise taxes ($69.9 billion)
10% Miscellaneous ($32. 6 billion) 2%
4% 1%
1%
39%
Customs dut ies ($21.1 billion) Estate and gift taxes ($24.8 billion) Social insurance taxes ($733.4 billion)
Figure 1. Actual FY2004 Revenues by Source.
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REVENUE AND DEBT-LIMIT LEGISLATION Congress may adopt individual revenue and debt-limit measures without employing the optional reconciliation process as well.
Revenue Legislation Revenue and debt-limit legislation is under the jurisdiction of the House Ways and Means Committee and the Senate Finance Committee. Article I, Section 7, of the U.S. Constitution requires that revenue legislation originate in the House of Representatives, but the Senate has considerable latitude to amend a revenue bill received from the House. Most of the laws establishing the federal government's revenue sources are permanent and continue year after year without any additional legislative action (see Figure 1).39 Congress, however, typically enacts revenue legislation, changing some portion of the existing tax system or renewing expiring provisions, every year. Revenue legislation may include changes to individual and corporate income taxes, social insurance taxes, excise taxes, or tariffs and duties. Revenue legislation is not considered automatically in the congressional budget process on an annual basis. Frequently, however, the President proposes and Congress considers changes in revenue laws to effect adjustments in the rates of taxation or the distribution of the tax burden, or for other purposes. An initial step in the congressional budget process is the publication of revenue estimates of the President's budget by CBO. These revenue estimates usually differ from the President's, since they are based on different economic and technical assumptions (e.g., growth of the economy and change in the inflation rate). Cost estimates of any congressional revenue proposals are prepared by CBO, based on revenue estimates made by the Joint Committee on Taxation (JCT). They are published in committee reports or in the Congressional Record and are available on JCT' s website.' The budget resolution recommends yearly revenue levels, based on baseline estimates of federal government revenues based on the continuation of existing laws and any proposed policy changes to them. Revenue levels in the budget resolution provide the framework for any action on revenue measures during the session. A point of order may be raised against consideration of legislation that causes revenues to fall below the agreed upon levels for the first fiscal year or the total for all fiscal years in the budget resolution. This point of order may be set aside by unanimous consent, or waived by a special rule in the House or by a three-fifths vote in the Senate (i.e., 60 Senators if there are no vacancies). The conference report to the FY2006 budget resolution (H.Con.Res. 95, H.Rept. 109-62), agreed to by the House and Senate on April 28, allows for revenue reductions of about $106 billion, of which $70 billion is included in reconciliation directives, as mentioned above, for the period FY2005-FY2010, below the budget baseline projected levels.' A Senate "pay-as-you-go" (PAYGO) point of order, under Section 505 of the FY2004 budget resolution (H.Con.Res. 95, 108th Congress), also may be raised against any revenue legislation not assumed in the most recently adopted budget resolution that would increase or cause an on-budget deficit for the first fiscal year, the period of the first five fiscal years, or
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the following five fiscal years, covered by the most recently adopted budget resolution.' A motion to waive the point of order requires a three-fifths vote. During 2005, the Congress acted on several measures affecting revenues. The revenue reconciliation measures considered by the House and Senate had the largest projected impact on revenues, reducing revenues by $56.1 billion and $57.8 billion, respectively, over the fiveyear period of FY2006-2010. (For information on the consideration of these measures, see section "Revenue Reconciliation Legislation," above.) In addition, the House and Senate considered several other measures affecting revenues, such as those relating to transportation (H.R. 3), energy (H.R. 6), pensions (H.R. 2830 and S. 1783), individual alternative minimum tax (AMT) relief (H.R. 4096), and hurricane relief (H.R. 3768, H.R. 4440, and S. 1969). Of these measures, the Congress completed action on those related to transportation (P.L. 109-59, August 10, 2005), energy (P.L. 109-58, August 8, 2005), and hurricane relief (P.L. 109-73, September 23, 2005, and P.L. 109-135, December 22, 2005). (The transportation and energy bills also affected mandatory spending. For further procedural information related to these bills, see section "Mandatory Spending," below.)
Debt-Limit Legislation The amount of money the federal government is allowed to borrow generally is subject to a statutory limit (31 U.S.C. 3101). From time to time, Congress considers and adopts legislation to change this limit.43 Federal debt consists of debt held by the public plus debt held by government accounts. The debt held by the public represents the total net amount borrowed from the public to cover all or most of the federal government's budget deficits. By contrast, the debt held by government accounts represents the total net amount of federal debt issued to specialized federal accounts, primarily trust funds (e.g., Social Security). Trust fund surpluses by law must be invested in special (non-negotiable) federal government securities, and thus are held in the form of federal debt. The combination of both types of debt is subject to the statutory public debt limit Therefore, budget deficits or trust fund surpluses may contribute to the federal government reaching the existing debt limit The annual congressional budget resolution specifies the appropriate level of the public debt for each fiscal year covered by the resolution. Although the budget resolution does not become law itself, the specified debt limits serve as a guide for any necessary debt-limit legislation. Congress may develop debt-limit legislation in any of three ways: (1) under regular legislative procedures; (2) under House Rule XXVII; or (3) as part of reconciliation legislation (as described above). Regardless of the process by which debt-limit legislation is developed, the House Ways and Means Committee and the Senate Finance Committee maintain exclusive jurisdiction over debt-limit legislation. Under House Rule XXVII (commonly referred to as the Gephardt rule after its author, former Representative Richard Gephardt), a joint resolution specifying the amount of the debt limit contained in the budget resolution automatically is engrossed and deemed to have passed the House by the same vote as the conference report on the budget resolution, thereby avoiding a separate vote on the debt-limit legislation.44 The Senate has no comparable
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automatic engrossment procedure; if it chooses to consider a House-passed joint resolution, it does so under the regular legislative process. The most recent increase in the public-debt limit was enacted as an independent measure (P.L. 108-415, 118 Stat. 2337) in November 2004. The debt-limit measure increased the statutory limit by $800 billion, from $7.384 trillion to $8.184 trillion. President Bush's FY2006 budget projects that the debt subject to the statutory limit will increase to $8.673 trillion, almost $500 billion over the current limit, by the end of FY2006.45 Therefore, Congress and the President will likely need to increase the statutory limit in late 2005 or early 2006.46 Pursuant to House Rule XXVII, upon the adoption of the FY2006 budget resolution by Congress, the House Clerk engrossed and transmitted to the Senate a joint resolution (H.J.Res. 47) increasing the public debt limit by $781 billion, to $8.965 trillion. H.J.Res. 47 was deemed to have been adopted by the House on April 28 by a vote of 214-211 (i.e., the vote upon which the House agreed to the conference report to the FY2006 budget resolution). The conference report to the FY2006 budget resolution (H.Con.Res. 95, H.Rept. 109-62) also contains a reconciliation directive to the House Ways and Means Committee and the Senate Finance Committee to report, by September 30, legislation increasing the statutory debt limit by $781 billion. As noted above, however, neither the House or the Senate took action on a reconciliation measure changing the statutory limit on the public debt in 2005.
Defense discretionary ($454.1 billion)
Non-defense discretionary ($440.9 billion) 19%
Social Security ($491.5 billion)
18%
21% 7% Net interest ($160. 2 billion) 7%
8% 2%
5%
Income Security ($190.7 billion)
12% Medicaid ($176.2 billion)
Other Retirement and Disability ($129 billion) Other mandatory programs ($54.8 billion) Medicare ($297.4 billion)
Figure 2. Actual FY2004 Outlays by Major Spending Category.
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APPROPRIATIONS AND OTHER SPENDING LEGISLATION Federal spending is categorized into two different types: discretionary or mandatory spending. Discretionary spending is controlled through the annual appropriations acts, while mandatory or direct spending (which consists mostly of entitlement programs) is determined by existing substantive law. Actual FY2004 federal outlays totaled $2,292 billion (see Figure 2).47 Of this total amount, $895 billion, or 39%, was discretionary spending (exploded slices in Figure 2), while $1,397 billion, or 61%, was mandatory spending. As noted above, the total budget authority and outlays set forth in the budget resolution are allocated among the House and Senate committees with jurisdiction over specific spending legislation. These allocations, commonly referred to as 302(a) allocations after the applicable section of the Congressional Budget Act, are specified in the joint explanatory statement accompanying the conference report to the budget resolution.48 A point of order may be raised against any legislation that would cause a committee's spending allocation to be exceeded. Like most points of order under the Congressional Budget Act, this point of order may be set aside by unanimous consent, or waived by a special rule in the House or by a three-fifths vote in the Senate (i.e., 60 Senators if there are no vacancies). The budget resolution typically provides for periodic revisions of these allocations if certain conditions, specified in reserve fund provisions, for instance, are met.
Discretionary Spending Discretionary spending is under the jurisdiction of the House and Senate Appropriations Committees. Soon after the budget resolution is adopted by Congress, the House and Senate Appropriations Committees subdivide their spending allocations among their subcommittees and formally report these suballocations to their respective chambers. These suballocations, referred to as 302(b) allocations after the applicable section of the Congressional Budget Act, effectively represent the spending ceilings on the individual regular appropriations acts. A point of order may be raised against the consideration of an appropriations measure, or any amendment, if it would cause the applicable appropriations subcommittee 302(b) allocations to be exceeded. This point of order, like others under the Congressional Budget Act, may be set aside by unanimous consent, or waived by a special rule in the House or by a three-fifths vote in the Senate (i.e., 60 Senators if there are no vacancies). During the appropriations process, these suballocations usually are revised several times. Congress passes three main types of appropriations measures. Regular appropriations acts provide budget authority for the next fiscal year, beginning on October 149 (From time to time, Congress merges two or more of these regular appropriations acts into an omnibus appropriations act at the end of the year.) Supplemental appropriations acts provide additional funding for unexpected needs while the fiscal year is in progress. Continuing appropriations acts, commonly referred to as continuing resolutions, provide stop-gap funding for agencies that have not received regular appropriations by the start of the fiscal year.
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The President's budget includes recommendations for the agencies, programs, and activities funded in the annual appropriations measures; account and program level detail about these recommendations is included in the Appendix volume of the President's budget documents. In addition, agencies submit justification materials to the House and Senate Appropriations Committees. The budget justifications provide more detailed information about an agency's program activities than is contained in the President's budget documents and are used in support of agency testimony during appropriations subcommittee hearings on the President's budget request. The House and Senate appropriations subcommittees begin holding extensive hearings on appropriations requests shortly after the President's budget is submitted. By custom, appropriations measures originate in the House. In recent years, the Senate Appropriations Committee has adopted and reported original Senate appropriations measures, allowing the Senate to consider appropriations measures without having to wait for the House to adopt its version. Under this practice, the Senate version is considered and amended on the floor, and then inserted into the House-adopted version, when available, as a substitute amendment, thereby retaining the House-numbered bill for final action. Congress also often adopts one or more continuing resolutions each year because of recurring delays in the appropriations process. For example, Congress passed three continuing resolutions before completing action on the FY2005 regular appropriations acts.50
Appropriations for FY2006 The conference report to the FY2006 budget resolution (H.Con.Res. 95, H.Rept. 109-62) provided for about $843 billion in discretionary spending. Accordingly, the House Appropriations Committee received a spending allocation [its so-called 302(a) allocation] of $843,020 million in budget authority and $916,836 million in outlays, and the Senate Appropriations Committee received a spending allocation [its so-called 302(a) allocation] of $842,265 million in budget authority and $916,081 million in outlays, for the FY2006 regular appropriations measures.51 Subsequently, these spending allocations were adjusted to levels effectively consistent to those allocated to the House Appropriations Committee.52 The allocations to the House and Senate Appropriations Committees were consistent with the total FY2006 discretionary spending amount supported by the Administration.53 On May 12, 2005, the House Appropriations Committee reported its initial subcommittee spending allocations (H.Rept. 109-78) and revised these subdivisions three times (H.Rept. 109-85, H.Rept. 109-145, and H.Rept. 109-264). On June 9, the Senate Appropriations Committee reported its initial subcommittee spending allocations (S.Rept. 109-77) and revised these subdivisions five times (S.Rept. 10995, S.Rept. 109-115, S.Rept. 109-176, S.Rept. 109-184, and S.Rept. 109-207). As mentioned above, these subdivisions [or so-called 302(b) allocations] serve as spending ceilings for the individual regular appropriations measures and are enforced by points of order on the floor of each chamber. The conference report to the FY2006 budget resolution also contains discretionary spending limits for each fiscal year covering FY2006 through FY2008 (Section 404 of H.Con.Res. 95), which may be enforced in the Senate by a point of order.54 A motion to waive the point of order requires a three-fifths vote (i.e., 60 Senators if there are no vacancies). The House and Senate began consideration of the regular appropriations bills for FY2006 during the weeks of May 16 and June 20, respectively.55 When FY2006 began on October 1,
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the House had passed 11, and the Senate had passed eight, of the regular appropriations acts for FY2006. Only two of these had been signed into law. Consequently, Congress passed and President Bush signed into law a continuing resolution (H.J.Res. 68, P.L. 109-77) to provide temporary appropriations through November 18, 2005, for agencies and programs funded in the remaining regular appropriations acts not yet enacted. Subsequently, Congress and President Bush extended the temporary funding through December 17 (H.J.Res. 72, P.L. 109-105) and through December 31 (H.J.Res. 75, P.L. 109-128). The Congress completed action on the regular appropriations acts for FY2006 when the Senate, on December 21, agreed to the conference reports to the Defense Appropriations Act (H.R. 2863, H.Rept. 109-359) and the Labor, Health and Human Services, and Education Appropriations Act (H.R. 3010, H.Rept. 109-337).56 On December 30, President Bush signed H.R. 2863 and H.R. 3010 into law (P.L. 109148 and P.L. 109-149, respectively), thereby bringing action on the FY2006 regular appropriations acts to a close. Although Congress did not complete action on most of the regular appropriations acts prior to the start of the fiscal year, it did pass the regular appropriations acts as freestanding measures instead of incorporating two or more of them into an omnibus measure as it did in the past three years.57 In addition, as in the past three years, Congress included an across-the-board spending cut to adhere to the discretionary spending levels assumed in the FY2006 budget resolution and to offset emergency spending related to previously-enacted hurricane assistance. Section 3801 of the Defense Appropriations Act, 2006, provides for a 1% spending cut that applies to all programs, projects, and activities contained in the regular appropriations acts for FY2006 (except FY2006 discretionary appropriations designated as an emergency requirement or made available to the Department of Veterans Affairs).58 According to the House Appropriations Committee, the 1% across-the-board spending cut will result in savings of $8.5 billion.59
Supplemental Appropriations In addition to the regular appropriations acts, Congress typically acts on at least one supplemental appropriations measure during a session. On February 14, President Bush submitted a request for FY2005 supplemental appropriations for ongoing activities in Iraq and Afghanistan as well as for Indian Ocean tsunami relief and recovery efforts, among other things60 In response to the President's request, the House Appropriations Committee reported H.R. 1268, Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005 (H.Rept. 109-16) on March 11. The House considered H.R. 1268 on March 15 and 16, and adopted the measure by a vote of 388-43. The Senate Appropriations Committee, subsequently, ordered reported H.R. 1268 with an amendment in the nature of a substitute (S.Rept. 109-52) on April 6. The Senate considered the FY2005 supplemental appropriations act on nine days between April 11 and April 21, adopting the measure, as amended, on April 21 by a 99-0 vote. On May 3, a conference report to accompany H.R. 1268 was filed. According to the Appropriations Committees, H.R. 1268 would provide about $82 billion in new budget authority for FY2005. The House agreed to the conference report on May 5 by a 368-58 vote. The Senate agreed to the conference report on May 10 by a 100-0 vote. President Bush signed the measure into law (P.L. 109-13) on May 11.
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The supplemental appropriations were designated as emergency requirements, pursuant to Section 402 of S.Con.Res. 95 (108th Congress), the FY2005 budget resolution, as made applicable to the House by H.Res. 5 (109th Congress) and to the Senate by Section 14007 of P.L. 108-287, and thereby exempt from the spending constraints mentioned above. In addition, President Bush submitted two additional requests for supplemental appropriations for hurricane-related disaster assistance.61 First, on September 2, 2005, the House and Senate passed H.R. 3645, Emergency Supplemental Appropriations Act to Meet Immediate Needs Arising From the Consequences of Hurricane Katrina, 2005, by voice vote and unanimous consent, respectively, and President Bush signed it into law (P.L. 109-61). P.L. 109-61 provides $10.5 billion in supplemental appropriations. Second, on September 8, the House and Senate passed H.R. 3673, Second Emergency Supplemental Appropriations Act to Meet Immediate Needs Arising From the Consequences of Hurricane Katrina, 2005, by votes of 410-11 and 97-0, respectively, and President Bush signed it into law (P.L. 10962). P.L. 109-62 provides $51.8 billion in supplemental appropriations. Like the supplemental appropriations enacted earlier in the year, the supplemental appropriations were designated as emergency requirements pursuant to section 402 of H.Con.Res. 95, the FY2006 budget resolution, thereby exempting the appropriations from the spending constraints associated with the budget resolution, as mentioned above. On October 28, 2005, President Bush submitted to Congress a request to reallocate $17.1 billion of the $51.8 billion in supplemental appropriations provided in P.L. 109-62.62 In response to this request, the Congress included a reallocation of hurricane-related funds in the Defense Appropriations Act, 2006 (H.R. 2863, P.L. 109-359). Division B (the Emergency Supplemental Appropriations Act to Address Hurricanes in the Gulf of Mexico and Pandemic Influenza, 2006) of H.R. 2863, however, reallocated $23.4 billion of the previously-enacted supplemental appropriations instead of the $17.1 billion requested by the President.
Rescission Request In addition to the request to reallocate previously- enacted supplemental appropriations, on October 28, President Bush also submitted to Congress a request to rescind $2.3 billion in previously-enacted appropriations to help defray the costs associated with disaster relief efforts. Like the reallocation of funds, the Congress included several rescissions in the Defense Appropriations Act, 2006 (H.R. 2863, P.L. 109-359). Division B (the Emergency Supplemental Appropriations Act to Address Hurricanes in the Gulf of Mexico and Pandemic Influenza, 2006) of H.R. 2863, however, rescinded only $1 billion of previously- enacted appropriations instead of the $2.3 billion requested by the President. (As noted above, however, the 1% across-the-board spending cut included in H.R. 2863 is projected to result in savings of $8.5 billion.)
Mandatory Spending Mandatory spending is under the jurisdiction of the various legislative committees of the House and Senate. Some entitlement programs, such as Medicaid and certain veterans' programs, are funded in annual appropriations acts, but such spending is not considered discretionary and is not controlled through the annual appropriations process.
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In addition to the committee spending allocations, under the Section 302 process mentioned above, mandatory spending legislation is limited by the Senate's PAYGO requirement. As with revenue legislation mentioned above, a point of order, under Section 505 of the FY2004 budget resolution (H.Con.Res. 95, 108th Congress), may be raised against any mandatory spending legislation not assumed in the most recently adopted budget resolution that would increase or cause an on-budget deficit for the first fiscal year, the period of the first five fiscal years, or the following five fiscal years, covered by the most recently adopted budget resolution.63 A motion to waive the point of order requires a three-fifths vote (i.e., 60 Senators if there are no vacancies). On several occasions in the past, Congress has included reserve funds in the budget resolution to accommodate specific mandatory spending legislation, often requiring that the legislation be deficit neutral. Under the provisions of a reserve fund, the chairmen of the House and Senate Budget Committees may revise the committee spending allocations and other budget resolution levels if certain legislation is reported by the appropriate committee. Without such an adjustment, mandatory spending legislation might be subject to points of order if it were not assumed in the budget resolution spending amounts. The Senate-passed version of the FY2006 budget resolution (S.Con.Res. 18) contains 16 reserve funds (Sections 301-316) for such purposes as health information technology and payfor-performance legislation and extension of treatment of combat pay for earned income and child tax credits legislation. The House-passed version (H.Con.Res. 95) contains one reserve fund, or "contingency procedure" (Section 301), for surface transportation legislation. As indicated in Table 4, the conference report to the FY2006 budget resolution (H.Con.Res. 95, H.Rept. 109-62) contains 10 reserve funds (Sections 301-310) for such purposes of surface transportation legislation and the restoration of unexpended funds under the State Children's Health Insurance Program. Four of these reserve funds apply to both the House and Senate; one applies to the House only; and five apply to the Senate only. During 2005, in addition to the spending reconciliation measure (see section "Spending Reconciliation Legislation," above), Congress acted on two major measures affecting mandatory spending relating to transportation (H.R. 3)64 and energy (H.R. 6)65 policy. In both cases, the Senate waived points of order under the Budget Act during their consideration. First, on March 10, the House passed its version of the highway and transit program reauthorization legislation (H.R. 3). In the Senate, during consideration of the legislation, the Senate agreed to waive a point of order (under Section 302(f) of the Budget Act) against Senator James Inhofe' s amendment in the nature of a substitute (S.Amdt. 605) by a vote of 76-22; the point of order was raised because the amendment, if adopted, would have caused the legislation to exceed the spending amounts for transportation programs provided in the FY2006 budget resolution (H.Con.Res. 95).66 The Senate, subsequently, agreed to the amendment and passed the bill, as amended, on May 17. After resolving the legislative differences between the two versions in a conference committee, the House and Senate agreed to the conference report to H.R. 3 on July 29. President Bush signed the legislation into law (P.L. 109-59) on August 10.67 Second, on April 21, the House passed its version of the energy legislation (H.R. 6). In the Senate, during consideration of the legislation, the Senate agreed to waive a point of order (under Section 302(f) of the Budget Act) against Senator Pete Domenic? s amendment to modify the section relating to the coastal impact assistance program (S.Amdt. 891) by a vote of 69-26; the point of order was raised because the amendment, if adopted, would have
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caused the legislation to exceed the spending amounts under the jurisdiction of the Senate Energy and Natural Resources Committee provided in the FY2006 budget resolution (H.Con.Res. 95).68 The Senate, subsequently, agreed to the amendment on June 23 and passed the bill, as amended, on June 28. After resolving the legislative differences between the two versions in a conference committee, the House and Senate agreed to the conference report to H.R. 6 on July 28 and 29, respectively. In the Senate, during the consideration of the conference report, the Senate agreed to waive a point of order (under Section 302(f) of the Budget Act) against the conference report by a vote of 71-29.69 President Bush, subsequently, signed the legislation into law (P.L. 109-58) on August 8.70
CHRONOLOGY December 21, 2005
The Senate agreed by a 51-50 vote (with Vice President Cheney voting in the affirmative to break the tie) to a motion to concur in the House amendment to S. 1932 with a further amendment containing the text of the conference report with certain provisions stricken, sending the measure back to the House for further action.
December 19 (legislative day, December 18), 2005
The House agreed to the conference report to the spending reconciliation measure (S. 1932, H.Rept. 109- 362) by a 212-206 vote.
December 8, 2005
The House passed its revenue reconciliation measure (H.R. 4297) by a 217-215 vote.
November 18 (legislative day, November 17), 2005 November 17, 2005
The Senate passed its revenue reconciliation measure (S. 2020) by a 52-47 vote.
November 3, 2005
The Senate passed its spending reconciliation measure (S. 1932) by a 52-47 vote.
April 28, 2005
The House and Senate agreed to the conference report to the FY2006 budget resolution (H.Con.Res. 95, H.Rept. 109-62) by votes of 214-211 and 52-47, respectively.
March 17, 2005
The House agreed to its version of the FY2006 budget resolution (H.Con.Res. 95) by a vote of 218-214; the Senate agreed to its version (S.Con.Res. 18) by a vote of 51-49.
The House passed its version of the spending reconciliation measure (H.R. 4241) by a vote of 217-215.
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February 7, 2005
President Bush submitted his FY2006 budget to Congress.
January 25, 2005
CBO released its annual report on budget baseline projections, The Budget and Economic Outlook: Fiscal Years 2006-2015.
FOR ADDITIONAL READING Congressional Hearings, Reports, and Documents Congressional Budget Office. An Analysis of the President's Budgetary Proposals for Fiscal Year 2006. Washington: CBO, March 2005. Congressional Budget Office. The Budget and Economic Outlook: Fiscal Years 2006-2015. Washington: CBO, January 2005. Congressional Budget Office. Budget Options. Washington: CBO, February 2005. U.S. Congress. House Committee on the Budget. Concurrent Resolution on the Budget Fiscal Year 2006. Report to Accompany H.Con.Res. 95. 109th Congress, 1st session. H.Rept. 109-17. Washington: GPO, 2005. U.S. Congress. House Committee on the Budget. Deficit Reduction Act of 2005. Report to Accompany H.R. 4241. 109th Congress, 1st session. H.Rept. 109-276. Washington: GPO, 2005. U.S. Congress. Senate Committee on the Budget. Concurrent Resolution on the Budget FY2006. Committee Print to Accompany S.Con.Res. 18. 109th Congress, 1st session. S.Prt. 109-18. Washington: GPO, 2005. U.S. Congress. Senate Committee on the Budget. Deficit Reduction Omnibus Reconciliation Act of 2005. Committee Recommendations as Submitted to the Committee on the Budget Pursuant to H.Con.Res. 95. 109th Congress, 1st session. S.Prt. 109-37. Washington: GPO, 2005. U.S. Congress. Committee on Conference. Concurrent Resolution on the Budget for Fiscal Year 2006. Conference Report to Accompany H.Con.Res. 95. 109th Congress, 1st session. H.Rept. 109-62. Washington: GPO, 2005. U.S. Congress. Committee on Conference. Deficit Reduction Act of 2005. Conference Report to Accompany H.Con.Res. 95. 109th Congress, 1st session. H.Rept. 109-362. Washington: GPO, 2005.
CRS Products CRS Report RL32246. Congressional Budget Actions in 2004, by Bill Heniff Jr. CRS Report RL30297. Congressional Budget Resolutions: Selected Statistics and Information Guide, by Bill Heniff Jr. CRS Report RL33132. Budget Reconciliation Legislation in 2005, by Robert Keith. CRS Report RL33127. Speaker Hastert's Plan to Offset Spending: A Procedural Perspective, by Robert Keith.
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CRS Report RL33122. Congressional Budget Resolutions: Revisions and Adjustments, by Robert Keith. CRS Report RL33030. The Budget Reconciliation Process: House and Senate Procedures, by Robert Keith and Bill Heniff Jr. CRS Report 98-721. Introduction to the Federal Budget Process, by Robert Keith and Allen Schick. CRS Report 97-684. The Congressional Appropriations Process: An Introduction, by Sandy Streeter. CRS Report RL30343. Continuing Appropriations Acts: Brief Overview of Recent Practices, by Sandy Streeter. CRS Report RL32264. The Budget for Fiscal Year 2005, by Philip D. Winters. CRS Report RL32812. The Budget for Fiscal Year 2006, by Philip D. Winters.
ENDNOTES 1
For information on budget actions during the second session of the 108th Congress, see CRS Report RL32246, Congressional Budget Actions in 2004, by Bill Heniff Jr. 2 For further information on the current budget deficit projections, see (1) Office of Management and Budget, Budget of the U.S. Government, Fiscal Year 2006 (Washington: GPO, 2005), Table S-1, pp. 343, 363; (2) Congressional Budget Office, The Budget and Economic Outlook: Fiscal Years 2006-2015 (Washington: CBO, 2005), Summary Table 1, p. xiv; and (3) CRS Report RL32812, The Budget for Fiscal Year 2006, by Philip D. Winters. 3 All of the President's FY2006 budget documents are available at [http://www. gpoaccess.goviusbudgetify06/browse.html]. 4 These requests are available at [http://www.gpoaccess.goviusbudgetify06/amndsup.html]. 5 For background information on the mid-session review, see CRS Report RL32509, The Mid-Session Review of the President's Budget: Timing Issues, by Robert Keith. 6 For more detailed information on these points of order and their application, see CRS Report 97-865, Points of Order in the Congressional Budget Process, by James V. Saturno. 7 These constraints were first established by the Budget Enforcement Act of 1990 (Title XIII of P.L. 101-508, Omnibus Budget Reconciliation Act of 1990, 104 Stat. 1388-573-1388630), which amended the Balanced Budget and Emergency Deficit Control Act of 1985 (Title II of P.L. 99-177, 99 Stat. 1038-1101). 8 In his FY2006 budget, President Bush proposed to set discretionary spending limits for FY2006 through FY2010 and to restore the PAYGO requirement for direct spending legislation only, among other budget reform initiatives. See Office of Management and Budget, Analytical Perspectives, Budget of the U.S. Government, Fiscal Year 2006, pp. 235242. For a contextual discussion of budget process reform, see CRS Report RS21752, Federal Budget Process Reform: A Brief Overview, by Bill Heniff Jr. and Robert Keith. 9 For historical information on budget resolutions, see CRS Report RL30297, Congressional Budget Resolutions: Selected Statistics and Information Guide, by Bill Heniff Jr. 10 Mr. Holtz-Eakin' s written testimony to the Senate Budget Committee is available at [http://www.cbo.gov/ftpdocs/60xx/doc6065/Outlook2006-2015Testimony.pdf] .
Congressional Budget Actions in 2005 11
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Mr. Bolton' s written testimony to the House Budget Committee is available on its website, at [http://www.house.gov/budget/heatings/boltenstmnt020805.pdf]; his written testimony to the Senate Budget Committee is available on its website, at [http://www.senate.gov/ — budget/republican/heatingarchive/testimonies/2005/20050209-0MB .pdf]. 12 For further information on the current budget baseline projections, see CRS Report RL32812, The Budget for Fiscal Year 2006, by Philip D. Winters. 13 See the summary table S-11 in the main Budget volume, p. 363, and chapter 25 of the Analytical Perspectives volume, pp.389-404, for the current services estimates. Office of Management and Budget, Budget of the U.S. Government, Fiscal Year 2006. 14 CBO documents are available at [http://www.cbo.gov/]. 15 For a description of the amendments and the roll call votes, see U.S. Congress, House Committee on the Budget, Concurrent Resolution on the Budget— Fiscal Year 2006, report to accompany H.Con.Res. 95, 109' Cong., sess., H.Rept. 109-17, Mar. 11, 2005 (Washington: GPO, 2005), pp. 91-111. 16 For a description of the amendments and the roll call votes, see U.S. Congress, Senate Committee on the Budget, Concurrent Resolution on the Budget FY2006, committee print to accompany S.Con.Res. 18, 109th Cong., sess., S.Prt. 109-18, Mar. 2005 (Washington: GPO, 2005), pp. 52-60. 17 In years when Congress is late in adopting, or does not adopt, a budget resolution, the House and Senate independently may adopt "deeming resolution" provisions for the purpose of enforcing certain budget levels. Deeming resolution provisions, typically included in a simple resolution, specify certain budget levels normally contained in the budget resolution, including aggregate spending and revenue levels, spending allocations to House and Senate committees, spending allocations to the Appropriations Committees only, or a combination of these. In some cases, an entire budget resolution, earlier adopted by one chamber, may be deemed to have been passed. Under a deeming resolution, the enforcement procedures related to the Congressional Budget Act, discussed later in this chapter, have the same force and effect as if Congress had adopted a budget resolution. For further information on "deeming resolutions," see CRS Report RL31443, The "Deeming Resolution": A Budget Enforcement Tool, by Robert Keith. In 2004, for example, Congress did not complete action on a FY2005 budget resolution; while the House agreed to the conference report to the FY2005 budget resolution (S.Con.Res. 95, H.Rept. 108-498), the Senate never considered it. In the absence of an agreement, the House and Senate separately adopted "deeming resolution" provisions for budget enforcement purposes. The House included a provision in the special rule (Section 2 of H.Res. 649) governing the consideration of the conference report to the FY2005 budget resolution "deeming" the conference report to have been agreed to by Congress. The Senate, in contrast, included provisions in the Defense Appropriations Act, 2005 (H.R. 4613, P.L. 108-287) setting forth the FY2005 spending allocations for the Senate Appropriations Committee. Senate committees other than the Appropriations Committee, however, continued to be limited by the spending allocations [302(a)s] associated with the FY2004 budget resolution (H.Con.Res. 95, H.Rept. 10871). At the beginning of the 109th Congress, the House agreed to deem the FY2005 budget resolution (S.Con.Res. 95, H.Rept. 108-498) adopted by the House during the 108th Congress to have been adopted by the 109th Congress.
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For the consideration and adoption of H.Res. 154 and H.Con.Res. 95, see Congressional Record, daily edition, vol. 151 (Mar. 16 and 17, 2005), pp. H1536-H1545, H1547H1598, H1627-H1674. 19 Of the 45 hours, 22 hours was to be controlled by the majority and 23 hours was to be controlled by the minority. See Congressional Record, daily edition, vol. 151 (Mar. 10, 2005), p. S2499. On Mar. 11, the Minority Leader, Senator Harry Reid, explained that the 19 Senate "in effect, agreed to use five hours of the time on the budget" on the Friday before the Senate began consideration of S.Con.Res. 18 on Monday, Mar. 14. See Congressional Record, daily edition, vol. 151 (Mar. 11, 2005), p. 52505. 20 For the consideration and adoption of the Senate version of the FY2006 budget resolution, see Congressional Record, daily edition, vol. 151 (Mar. 14-17, 2005), pp. S2587-S2641, S2661-S2728, S2759-S2841, S2875-S2897, S2899-S2926, S2929-S2967. 21 The House considered the conference report under a special rule (H.Res. 248), which it agreed to by voice vote, after agreeing to order the previous question by a 228-196 vote. For the House consideration of H.Res. 248 and the conference report to H.Con.Res. 95, see Congressional Record, daily edition, vol. 151 (Apr. 28, 2005), pp. H2693-H2716. For the Senate consideration of the conference report to H.Con.Res. 95, see Congressional Record, daily edition, vol. 151 (Apr. 28, 2005), pp. S4481-S4527. 22 For a full discussion of the reconciliation process, see CRS Report RL33030, The Budget Reconciliation Process: House and Senate Procedures, by Robert Keith and Bill Heniff Jr. 23 See (1) Steven T. Dennis, "Recalibrating Reconciliation," CQ Weekly (Sept. 19, 2005), p. 2503; and (2) Steven T. Dennis, "House Delays Reconciliation Deadlines a Second Time," CQ Today (Oct. 11, 2005). 24 For detailed information on the Byrd rule, see CRS Report RL30862, The Budget Reconciliation Process: The Senate's "Byrd Rule," by Robert Keith. 25 For background on and actions by each Senate committee related to the reconciliation submissions, see U.S. Congress, Senate Committee on the Budget, Deficit Reduction Omnibus Reconciliation Act of 2005, committee print, 109th Cong., 1" sess., S.Prt. 10937, Oct. 2005 (Washington: GPO, 2005). 26 the consideration and adoption of S. 1932, see Congressional Record, daily edition, vol. 151 (Oct. 31-Nov. 3, 2005), pp. S12065-S12073, S12079-S12122, S12149-S12219, S 12291-S 12345. 27 [http://www .cbo.goviftpdocs/68xx/doc6886/SenatePassedRecon.pdf]. 28 For background on and actions by each House committee related to the reconciliation submissions, see U.S. Congress, House Committee on the Budget, Deficit Reduction Act of 2005, committee report to accompany H.R. 4241, 109th Cong., Pt sess., H.Rept. 109276, Nov. 7, 2005 (Washington: GPO, 2005). 29 Prior to the consideration of H.Res. 560, Representative Jim McDermott raised a point of order against the consideration of the special rule under Section 426 of the Budget Act (which relates to the waiving of a point of order under the Unfunded Mandates Reform Act). Pursuant to the provisions of this section of the Budget Act, the House agreed to consider H.Res. 560 by a vote of 224-198. See Congressional Record, daily edition, vol. 151 (Nov. 17, 2005), pp. H10531-H10534.
Congressional Budget Actions in 2005 30
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For the consideration and adoption of H.Res. 560, H.R. 4241, and S. 1932, see Congressional Record, daily edition, vol. 151 (Nov. 17, 2005), pp. H10531-H10534, H10537-H10749. 31 [http://www.cbo.goviftpdocs/68xx/doc6885/HousePassedRecon.pdf]. 32 The House considered the conference report under a special rule (H.Res. 640, H.Rept. 109636), which it agreed to by voice vote. The special rule waived all points of order against the conference report and its consideration. For the House consideration of H.Res. 640 and the conference report to S. 1932, see Congressional Record, daily edition, vol. 151 (Dec. 18, 2005), pp. H12233-H12241, H12269-H12277. 33 The Senate considered the conference report to S. 1932 on December 19-21, 2005. See Congressional Record, daily edition, vol. 151 (Dec. 19-21, 2005), pp. S14015-S14024, S 14068-514069, S 14073-514164, S 14202-514221. 34 For the consideration and adoption of S. 2020, see Congressional Record, daily edition, vol. 151 (Nov. 16-17, 2005), pp. S12923-S12940, S13072-S13145. 35 [http://www.house.govijct/x-82-05r.pdf]. 36 The House agreed to H.Res. 588 by voice vote. 37 For the consideration and adoption of H.Res. 588 and H.R. 4297, see Congressional Record, daily edition, vol. 151 (Dec. 8, 2005), pp. H11227-H11264. 38 [http://www.house.govijct/x-81-05.pdf]. 39 Chart created by CRS based on data from Congressional Budget Office, The Budget and Economic Outlook: Fiscal Years 2006-2015 (Washington: CBO, 2005), p. 136. 40 [http://www.house.gov/jct/]. 41 Total level of revenue reductions is based on Section 101(1)(B) of H.Con.Res. 95 (H.Rept. 109-62). 42 chair of the Senate Budget Committee maintains a scorecard of the existing balance of the deficit increase resulting from direct spending or revenue policy assumptions included in the most recently adopted budget resolution. The joint explanatory statement of the committee of conference on the FY2006 budget resolution indicates that the budget resolution assumed deficit increases of $436 million for FY2005, $16.849 billion for FY2006, $75.580 billion for the five-year period FY2006-FY2010, and $274.999 billion for the next five-year period FY2011-FY2015. See U.S. Congress, Committee on Conference, Concurrent Resolution on the Budget for Fiscal Year 2006, conference report to accompany H.Con.Res. 95, 109th Cong., 1St sess., H.Rept. 109-62 (Washington: GPO, 2005), pp. 89-90. 43 For further information on debt-limit legislation, see CRS Report RS21519, Legislative Procedures for Adjusting the Public Debt Limit: A Brief Overview, by Robert Keith and Bill Heniff Jr.; and CRS Report RL31967, The Debt Limit: The Ongoing Need for Increases, by Philip D. Winters. 44 For further information, see CRS Report RL31913, Developing Debt-Limit Legislation: The House's "Gephardt Rule," by Bill Heniff Jr. 45 OMB, Analytical Perspectives, Budget of the U.S. Government, Fiscal Year 2006, p. 247. 46 The Department of the Treasury, at the end of 2005, indicated that it would not be able to finance government operations beyond mid-March 2006 without an increase in the statutory limit on the public debt. See, for example, Jonathan Nicholson, "Snow Seeks Boost in Debt Limit In Advance of Mid-February Deadline," BNA's Daily Report for Executives (Jan. 3, 2006), p. A-17.
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Chart created by CRS based on data from CBO, The Budget and Economic Outlook: Fiscal Years 2006-2015 (Washington: CBO, 2005), pp. 138, 140, and 142. The chart excludes offsetting receipts, which are treated as negative spending (i.e., they are deducted from spending in the budget totals); offsetting receipts totaled $108.7 billion in FY2004. Percentages do not add to 100% due to rounding. 48 See U.S. Congress, Committee on Conference, Concurrent Resolution on the Budget for Fiscal Year 2006, conference report to accompany H.Con.Res. 95, 109' Cong., 1" sess., H.Rept. 109-62 (Washington: GPO, 2005), pp. 85-89. 49 Each subcommittee of the House and Senate Appropriations Committees typically is responsible for one of the regular appropriations acts. On Feb. 15, the House Appropriations Committee voted to reduce the number of its subcommittees from 13 to 10 and adjust their jurisdiction. Each subcommittee continues to be responsible for one regular appropriations act, and the full Committee is responsible for the accounts and programs of the Legislative Branch. On Mar. 2, Senator Thad Cochran, chairman of the Senate Appropriations Committee, announced a new subcommittee organization, including the elimination of one subcommittee, leaving 12 subcommittees. For additional information on changes to the appropriations subcommittee structure, see CRS Report RL31572, Appropriations Subcommittee Structure: History of Changes from 1920-2005, by James V. S aturno. 50 Initially, Congress passed, and President Bush signed into law, a continuing resolution (H.J.Res. 107, P.L. 108-309) to provide temporary appropriations through November 20, 2004, for agencies and programs funded in the regular appropriations acts not enacted by the start of the fiscal year. Subsequently, Congress and President Bush extended the temporary funding through Dec. 3 (H.J.Res. 114, P.L. 108-416) and Dec. 8 (H.J.Res. 115, P.L. 108-434). 51 Section 404(b) provides for the upward adjustment of the Senate Appropriations Committee's allocations by $755 million (in budget authority and outlays) for FY2006 if it reports appropriations bills that meet certain criteria involving continuing disability reviews, Internal Revenue Service tax enforcement, health care fraud and abuse control program, and unemployment insurance improper payments. This $755 million accounts for the difference between the appropriations committees allocations. 52 The initial spending allocations to the Senate Appropriations Committee were revised to $843,020 million in budget authority and $916,836 million in outlays on July 28, 2005, by Senate Budget Committee Chairman Judd Gregg, under the authority of Section 404(b) of H.Con.Res. 95. See Congressional Record, daily edition, vol. 151 (July 28, 2005), pp. S9274-S9275. 53 See, for example, the Statements of Administration Policy for any of the FY2006 regular appropriations acts, available at [http://www.whitehouse.goviombilegislativeisap/109-1/ index-apps.html]. 54 Section 404 of H.Con.Res. 95 also provides for the adjustment of the FY2006 discretionary spending limits to accommodate spending for continuing disability reviews, Internal Revenue Service tax enforcement, health care fraud and abuse control program, and unemployment insurance improper payments. Like the spending allocations to the Senate Appropriations Committee, these discretionary spending limits for FY2006 were adjusted on July 28, 2005. See Congressional Record, daily edition, vol. 151 (July 28, 2005), pp. S9274-S9275.
Congressional Budget Actions in 2005 55
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For the up-to-date status of and further information on the FY2006 appropriations bills, see [http://www.crs.gov/products/approptiationsiapppage.shtml], the CRS Appropriations web site . 56 On December 21, the Senate rejected a motion to invoke cloture on the conference report to the Defense Appropriations Act (H.R. 2863) by a 56-44 vote. Subsequently but prior to agreeing to the conference report to H.R. 2863, the Senate agreed to a concurrent resolution (S.Con.Res. 74) correcting the enrollment of H.R. 2863. S.Con.Res. 74 directed the Clerk of the House to strike Division C (relating to the Arctic National Wildlife Refuge (ANWR)) and Division D (relating to the distribution of ANWR proceeds and disaster assistance) in the enrollment of H.R. 2863. The Senate then agreed to the conference report to H.R. 2863 by a 93-0 vote. The Senate also agreed by unanimous consent that if the House did not agree to S.Con.Res. 74, the passage by the Senate of the Defense Appropriations Act be vitiated. See Congressional Record, daily edition, vol. 151 (Dec. 21, 2005), pp. S14233- S14254. The House, subsequently, adopted S.Con.Res. 74 by unanimous consent on December 22. See Congressional Record, daily edition, vol. 151 (Dec. 22, 2005), pp. H13181-H13183. 57 For further information on this practice, see CRS Report RL32473, Omnibus Appropriations Acts: Overview of Recent Practices, by Robert Keith. 58 For further information on this practice, see CRS Report RL32153, Across-the-Board Spending Cuts in Omnibus Appropriations Acts, by Robert Keith. 59 [http://appropriations .house. goy/index .cfm?FuseAction.Pres sReleases .Detdil&PressR elease_id=532]. 60 For further information on the supplemental appropriations request, see CRS Report RL32783, FY2005 Supplemental Appropriations for Iraq and Afghanistan, Tsunami Relief, and Other Activities, by Amy Belasco and Larry Nowels. On Mar. 2, President Bush transmitted additional supplemental proposals for FY2005 requested by the legislative and judicial branches. Such requests of the other branches typically are transmitted to Congress by the President, without modification, "as a matter of comity." For the President's supplemental requests, see [http://www.whitehouse. goviombibudget/amendments.htm]. 61 For further information, see CRS Report RS22239, Emergency Supplemental Appropriations for Hurricane Katrina Relief, by Jennifer E. Lake and Ralph M. Chite. 62 request and the subsequent legislation rescinded the previously-enacted $17.1 billion to the Federal Emergency Management Agency and appropriated $17.1 billion to various agencies for purposes of disaster relief, effectively reallocating the funds. 63 The chair of the Senate Budget Committee maintains a scorecard of the existing balance of the deficit increase resulting from direct spending or revenue policy assumptions included in the most recently adopted budget resolution. The joint explanatory statement of the committee of conference on the FY2006 budget resolution indicates that the budget resolution assumed deficit increases of $436 million for FY2005, $16.849 billion for FY2006, $75.580 billion for the five-year period FY2006-FY2010, and $274.999 billion for the next five-year period FY2011-FY2015. See U.S. Congress, Committee on Conference, Concurrent Resolution on the Budget for Fiscal Year 2006, conference report to accompany H.Con.Res. 95, 109th Cong., 1" sess., H.Rept. 109-62 (Washington: GPO, 2005), pp. 89-90.
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For further information on the legislation, see CRS Report RL33119, Safe, Accountable, Flexible, Efficient Transportation Equity Act — A Legacy for Users (SAFETEA-LU or SAFETEA): Selected Major Provisions, by John W. Fischer. 65 For further information on the legislation, see CRS Report 11310143, Energy Policy: Comprehensive Energy Legislation (H.R. 6) in the 109th Congress, by Robert L. Bamberger and Carl E. Behrens. 66 The contract authority provided in the legislation for transportation programs is treated as mandatory spending, while the resulting outlays are treated as discretionary spending. Therefore, the contract authority amounts are subject to the 302(a) spending limits allocated to the committees of jurisdiction by the FY2006 budget resolution. For the discussion on the Senate floor related to the point of order and the motion to waive it, see Congressional Record, daily edition, vol. 151 (May 11, 2005), pp. S4896-S4903. 67 For a cost estimate, see [http://www.cbo.goviftpdocs/66xx/doc6654/1r3paygo.pdf]. 68 According to Senator Gregg, who raised the point of order, the amendment would have converted a discretionary program into an entitlement (i.e., mandatory spending) program, resulting in an increase in mandatory spending. For the discussion on the Senate floor related to the point of order and the motion to waive it, see Congressional Record, daily edition, vol. 151 (June 23, 2005), pp. S7210-S7233. 69 According to Senator Russ Feingold, who raised the point of order, the conference report exceeded the amount allocated by the FY2006 budget resolution (H.Con.Res. 95). For the discussion on the Senate floor related to the point of order and the motion to waive it, see Congressional Record, daily edition, vol. 151 (July 29, 2005), p. S9374. 70 For a cost estimate, see [http://www.cbo.goviftpdocs/65xx/doc6581/hr6prelim pdf].
In: Congress of the U.S: Commitees, Rules and Procedures ISBN 978-1-60456-416-7 Editor: Sela G. Thomason © 2009 Nova Science Publishers, Inc.
Chapter 20
PARTY LEADERS IN THE UNITED STATES CONGRESS, 1789-2007* Valerie Heitshusen SUMMARY This chapter briefly describes current responsibilities and selection mechanisms for 15 House and Senate party leadership posts and provides tables with historical data, including service dates, party affiliation, and other information for each. Tables have been updated as of the chapter’s issuance date to reflect leadership changes. Although party divisions appeared almost from the First Congress, the formally structured party leadership organizations now taken for granted are a relatively modern development. Constitutionally-specified leaders, namely the Speaker of the House and the President pro tempore of the Senate, can be identified since the first Congress. Other leadership posts, however, were not formally recognized until about the middle of the 19th century, and some are 20th century creations. In the earliest Congresses, those House Members who took some role in leading their party were often designated by the President as his spokesperson in the chamber. By the early 1 800s, an informal system developed when the Speaker began naming his lieutenant to chair one of the most influential House committees. Eventually, other members wielded significant influence via other committee posts (e.g., the post-1880 Committee on Rules). By the end of the 19th century, the formal position of floor leaders had been established in the House. The Senate was slower than the House to develop formal party leadership positions, and there are similar problems in identifying individual early leaders. For instance, records of party conferences in the 19th century Senate are not available. Memoirs and other secondary sources reveal the identities of party conference or caucus chairs for some, but not all, Congresses after about 1850, but these posts carried very little authority. It was not uncommon for Senators to publicly declare that within the Senate parties, there was no single *
This is an edited, excerpted and augmented edition of a CRS Report for Congress publication, Order Code RL30567, dated February 27, 2007.
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leader. Rather, through the turn of the 20th century, individuals who led the Senate achieved their position through recognized personal attributes, including persuasion and oratorical skills, rather than election or appointment to formal leadership posts. The formal positions for Senate party floor leaders eventually arose from the position of conference chair. Owing to the aforementioned problems in identifying informal party leaders in earlier Congresses, the tables in this chapter identify each leadership position beginning with the year in which each is generally regarded to have been formally established. The chapter excludes some leadership posts in order to render the amount of data manageable. An appendix explains the abbreviations used to denote political parties, and a bibliography cites useful references, especially in regard to sources for historical data.
INTRODUCTION AND METHODOLOGICAL NOTES Although party divisions sprang up almost from the First Congress, the formally structured party leadership organizations now taken for granted are a relatively modern development. Constitutionally-specified leaders, namely the Speaker of the House and the President pro tempore of the Senate, can be identified since the first Congress. Other leadership posts, however, were not officially recognized until about the middle of the 19th century, and some are 20th century creations. The following tables identify 15 different party leadership posts beginning with the year when each is generally regarded to have been formally established. The tables herein present data on service dates, party affiliation, and other information for the following House and Senate party leadership posts: House Positions 1. Speakers of the House of Representatives, 1789-2007 2. House Republican Floor Leaders, 1899-2007 3. House Democratic Floor Leaders, 1899-2007 4. House Democratic Whips, 190 1-2007 5. House Republican Whips, 1897-2007 6. House Republican Conference Chairs, 1863-2007 7. House Democratic Caucus Chairs, 1849-2007 Senate Positions 8. Presidents Pro Tempore of the Senate, 1789-2007 9. Deputy Presidents Pro Tempore of the Senate, 1977-2007 10. Permanent Acting President Pro Tempore of the Senate, 1964-2007 11. Senate Republican Floor Leaders, 19 19-2007 12. Senate Democratic Floor Leaders and Conference Chairs, 1893-2007 13. Senate Republican Conference Chairs, 1893-2007 14. Senate Democratic Whips, 1913-2007 15. Senate Republican Whips, 1915-2007
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This information is current through the leadership elections and appointments made for the first session of the 110th Congress.1 Included for each post are leaders’ names, party and state affiliations, and dates and Congresses of service. For most Congresses, the chapter indicates years of service only, except in the tables for the House Speaker and the Senate President pro tempore, both of which include specific dates of service. When a Member died while holding a leadership office, however, the date of death is included as the end-ofservice date (except in Table 13). In cases where a leadership change occurs during the course of a Congress, exact dates of service are indicated where possible. With respect to length of service, the chapter includes all instances in which a Member held a particular leadership post, regardless of whether the Member held the post for the entire Congress or only a portion of it. Official congressional documents (House Journal and Senate Journal, Congressional Record, and predecessor publications) can be used to document the tenure of the constitutionally-specified leaders (i.e., Speaker and President pro tempore). The actions of the party organizations in choosing other leaders, such as floor leaders or caucus or conference chairs, frequently went unacknowledged in these sources, however. In the frequent absence of party caucus records in the latter half of the 19th century, scholars have had to rely on secondary sources, such as memoirs and correspondence, for evidence of party leadership position-holding. The concluding portion of this chapter, “Source Notes and Bibliography,” provides more information about sources and the reliability of leadership lists.
IDENTIFYING HOUSE LEADERS The changing nature of congressional leadership provides additional challenges to identifying leaders not constitutionally specified (e.g., floor leader).2 Even for party elected posts, determining who held other positions can be problematic in earlier Congresses. For example, identifying each party’s conference (or caucus) chair often requires reliance on incomplete historical records of conference meetings or inferences made from informal practices (e.g., noting which Member nominated his party’s candidate for Speaker, a motion that often fell to the conference chair). In the House, for example, it was the common practice of President Thomas Jefferson and his immediate successors to designate a Member as their principal legislative spokesman. Often these spokesmen held no other formal leadership position in the House, and Presidents frequently designated new spokesmen, or even specialized spokesmen for individual measures, as their terms progressed. As these and other “leaders” were not chosen by a congressional party group or by a party leader such as the Speaker, these presidential designees have not been included here as “party leaders.” Most historians who study the 1 9th century House acknowledge that an informal “positional leadership” system emerged possibly as early as the “War Hawk” Congress (1811-1813) under Speaker Henry Clay. Under this system, the Speaker — who at the time designated the chairmen of the standing committees — would name his principal lieutenant to be chairman of the Ways and Means Committee. After the Appropriations Committee was split from the Ways and Means Committee in 1865, the Speaker’s principal floor lieutenant
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received either of these chairs. Sometimes, the Speaker chose a rival for the speakership to chair one of these committees in an effort to resolve intra-party disputes. It is somewhat inaccurate, however, to consider these early leaders to be majority leaders in the modern sense, and they have not been included here. The position of chair of the Appropriations or Ways and Means Committee inevitably made the incumbent a powerful congressional figure because of the important legislation reported from these committees. These chairs were not, however, chosen in a vote by the full party organization, as the majority or minority House leaders are now. Furthermore, other leading congressional figures, such as the Republican leader Thomas Brackett Reed, achieved their positions of influence within the House by service on other committees, such as — in Reed’s case — the post-1880 Rules Committee.
Identifying Senate Leaders The Senate developed an identifiable party leadership later than the House. The few existing records of party conferences in the 19th century Senate are held in private collections. Memoirs and other secondary sources reveal the identities of party conference or caucus chairs for some, but not all, Congresses after about 1850; these posts, however, carried very little authority. It was not uncommon for Senators to declare publicly that within the Senate parties there was no single leader.3 Instead, through the turn of the 20th century, individuals who led the Senate achieved their position through recognized personal attributes, including persuasion and oratory skills, rather than the current practice of election to most official leadership posts. The development of Senate party floor leaders was one of slow evolution, like the House, but they arose for the most part from the post of conference chair. Not until 1945 did Senate Republicans specify that the conference chair and floor leader posts must be held by separate Senators. Among Senate Democrats, the floor leader is also chair of the conference. In many secondary sources, Senators are identified as “floor leaders” before existing party conference records so identify them. In this chapter, footnotes to the tables attempt to clarify when a leader was identified through official sources such as caucus minutes or through secondary sources.
Party Affiliation Designations Another problem in identifying party leaders in early Congresses is the matter of party affiliation. Secondary sources reporting on party leaders often relied upon the information compiled in early editions of the Biographical Directory of the United States Congress. As the editors of the 1989 edition of the Biographical Directory noted: The most serious source of error and confusion in previous editions [of the Biographical Directory] [was] the designations of party affiliation. Many of the party labels added to the editions of 1913 and 1928 were anachronistic, claiming for the two modern parties Senators and Representatives elected to Congress before the [modern] Democratic or Republican parties existed. Other entries ignored the frequent shifts in party affiliation during the
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nineteenth century or omitted reference to short-lived and regional political parties and thus failed to reflect the vigor and diversity of nineteenth-century politics.4
The 1989 and 1997 editions of the Biographical Directory resolved these differences, and their designations of party affiliations are principal sources for this chapter. The 1997 edition of the Biographical Directory, in particular, included more complete notations where Members changed their party affiliations while serving in Congress.5 The main source for early party affiliations of Senator leaders, principally Presidents pro tempore, is volume four of Senator Robert C. Byrd’s The Senate, 1789-1989. (Historical Statistics, 1789-1992).6 An appendix explains the abbreviations used to denote party affiliations in this chapter.
Leadership Posts Excluded The tables in this chapter exclude some leadership posts in order to render manageable the amount of data provided. Specifically, the Senate and House party conference secretaries, and the chairs of party committees (e.g., steering committees, policy committees, committees on committees, and campaign committees) are not presented here. Junior party whips are also not identified. At least since the 1930s in the House, both parties have selected (or allowed the principal whip to designate) subordinate whips. The lack of adequate records makes it almost impossible to identify all deputy whips, regional whips, and zone whips who have been appointed in the last 70 years.
HOUSE POSITIONS: DESCRIPTIONS AND HISTORICAL TABLES Speaker of the House of Representatives The position of Speaker is constitutionally specified in Article 1, Section 2. The Speaker is the only party leader who is chosen by a roll-call vote of the full House of Representatives, which occurs after each party has nominated a candidate for the position when a new Congress convenes. House rules give the Speaker various formal duties. These include, for example, administering the oath of office to new Members, signing House-passed bills and resolutions, presiding over the House (and making rulings on the presence of a quorum, points of order, etc.), referring measures to committees, and naming the party’s slate of members for certain committee positions. Each party conference cedes additional powers and responsibilities to a Speaker from its own party, including influence over the makeup of certain standing committees. For more information, consult CRS Report 97-780, The Speaker of the House: House Officer, Party Leader, and Representative, by James V. Saturno, and CRS Report RL30857, Speakers of the House: Elections, 1913-2005, by Richard S. Beth and James V. Saturno.
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Valerie Heitshusen Table 1. Speakers of the House of Representatives, 1789-2007
Speaker Frederick A.C. Muhlenberg
Party N/A
State PA
Congress 1st
Jonathan Trumbull
N/A
CT
2nd
Frederick A.C. Muhlenberg
N/A
PA
3rd
Jonathan Dayton
N/A
NJ
4th-5th
Theodore Sedgwick
N/A
MA
6th
Nathaniel Macon
N/A
NC
7th-9th
Joseph B. Varnum
N/A
MA
10th-11th
Henry Clay
R(DR)a
KY
12th-13th
Langdon Cheeves
R(DR)a
SC
13th
Henry Clay
R(DR)a
KY
14th-16th
John W. Taylor
R(DR)a
NY
16th
Philip Barbour
R(DR)a
VA
17th
Henry Clay
R(DR)a
KY
18th
John W. Taylor
R(DR)a
NY
19th
Andrew Stevenson
N/A
VA
20th
Andrew Stevenson
J
VA
21st-23rd
John Bell
N/A
TN
23rd
James K. Polk
J
TN
24th-25th
Robert M.T. Hunter
W
WA
26th
John White
W
KY
27th
John W. Jones
D
VA
28th
Dates Apr. 1, 1789- Mar. 3, 1791 Oct. 24, 1791Mar. 3, 1793 Dec. 2, 1793Mar. 3, 1795 Dec. 7, 1795Mar. 3, 1799 Dec. 2, 1799Mar. 3, 1801 Dec. 7, 1801Mar. 3, 1807 Oct. 26, 1807Mar. 3, 1811 Nov. 4, 1811Jan. 19, 1814b Jan. 19, 1814Mar. 3, 1815 Dec. 4, 18 15Oct. 28, 1820c Nov. 15, 1820Mar. 3, 1821 Dec. 4, 1821Mar. 3, 1823 Dec. 3, 1823Mar. 6, 1825d Dec. 5, 1825Mar. 3, 1827 Dec. 3, 1827Mar. 3, 1829 Dec. 7, 1829June 2, 1834e June 2, 1834Mar. 3, 1835 Dec. 7, 1835Mar. 3, 1839 Dec. 16, 1839Mar. 3, 1841 May 31, 1841Mar. 3, 1843 Dec. 4, 1843Mar. 3, 1845
Party Leaders in the United States Congress, 1789-2007 John W. Davis
D
IN
29th
Robert C. Winthrop
W
MA
30th
Howell Cobb
D
GA
31st
Linn Boyd
D
KY
32nd-33rd
Nathaniel P. Banks
Amf
MA
34th
James L. Orr
D
SC
35th
William Pennington
R
NJ
36th
Galusha A. Grow
R
PA
37th
Schuyler Colfax
R
IN
38th-40th
Theodore Pomeroy James G. Blaine
R R
NY ME
40th 41st-43rd
Michael C. Kerr
D
IN
44th
Samuel J. Randall
D
PA
44th-46th
J. Warren Keifer
R
OH
47th
John G. Carlisle
D
KY
48th-50th
Thomas B. Reed
R
ME
51st
Charles F. Crisp
D
GA
52nd-53rd
Thomas B. Reed
R
ME
54th-55th
David B. Henderson
R
IA
56th-57th
Joseph G. Cannon
R
IL
58th-61st
James B. (Champ) Clark
D
MO
62nd-65th
Frederick H. Gillett
R
MA
66th-68th
Nicholas Longworth
R
OH
69th-71st
371
Dec. 1, 1845Mar. 3, 1847 Dec. 6, 1847Mar. 3, 1849 Dec. 22, 1849Mar. 3, 1851 Dec. 1, 1851Mar. 3, 1855 Feb. 2, 1856Mar. 3, 1857 Dec. 7, 1857Mar. 3, 1859 Feb. 1, 1860Mar. 3, 1861 July 4, 186 1Mar. 3, 1863 Dec. 7, 1863Mar. 3, 1869g Mar. 3, 1869h Mar. 4, 1869Mar. 3, 1875 Dec. 6, 1875Aug. 19, 1876i Dec. 4, 1876Mar. 3, 1881 Dec. 5, 188 1Mar. 3, 1883 Dec. 3, 1883Mar. 3, 1889 Dec. 2, 1889- Mar. 3, 1891 Dec. 7, 1891Mar. 3, 1895 Dec. 2, 1895Mar. 3, 1899 Dec. 4, 1899Mar. 3, 1903 Nov. 9, 1903Mar. 3, 1911 April 4, 1911Mar. 3, 1919 May 19, 1919Mar. 3, 1925 Dec. 7, 1925Mar. 3, 1931
372
Valerie Heitshusen Table 1. Continued
Speaker John N. Garner
Party D
State TX
Congress 72nd
Henry T. Rainey
D
IL
73rd
Joseph W. Byrns
D
TN
74th
William B. Bankhead
D
AL
74th-76th
Sam T. Rayburn
D
TX
76th-79th
Joseph W. Martin, Jr.
R
MA
80th
Sam T. Rayburn
D
TX
81st-82nd
Joseph W. Martin, Jr.
R
MA
83rd
Sam T. Rayburn
D
TX
84th-87th
John W. McCormack
D
MA
87th-91st
Carl Albert
D
OK
92nd-94th
Thomas P. O’Neill, Jr.
D
MA
95th-99th
James C. Wright, Jr.
D
TX
100th-101st
Thomas S. Foley
D
WA
101st-103rd
Newt Gingrich
R
GA
104th-105th
J. Dennis Hastert
R
IL
106th-109th
Nancy Pelosi
D
CA
1 10th -
Dates Dec. 7, 193 1Mar. 3, 1933 Mar. 9, 1933Aug. 19, 1934j Jan. 3, 1935June 4, 1936k June 4, 1936Sept. 15, 1940l Sept. 16, 1940Jan. 3, 1947 Jan. 3, 1947Jan. 3, 1949 Jan. 3, 1949Jan. 3, 1953 Jan. 3, 1953Jan. 3, 1955 Jan. 5, 1955Nov. 16, 1961m Jan. 10, 1962Jan. 3, 1971 Jan. 21, 1971Jan. 3, 1977 Jan. 4, 1977Jan. 3, 1987 Jan. 6, 1987June 6, 1989n June 6, 1989Jan. 3, 1995 Jan. 4, 1995Jan. 3, 1999 Jan. 6, 1999Jan. 3, 2007 Jan. 4, 2007-
Sources: See the “Source Notes and Bibliography” section at the end of this chapter for a description and full citation of all sources. Note: A key to all party abbreviations can be found in the Appendix of this chapter. a Although the Biographical Directory of the American Congress, 1 774-1996 identifies these Speakers as Republicans, the party designation “Democratic Republicans” is more widely used and familiar to readers. This designation, R(DR), should not be taken to refer to the contemporary Republican Party, which did not emerge until the 1 850s. b Resigned from the House of Representatives, January 19, 1814. c Resigned the Speakership on October 28, 1820. d Resigned from the House, March 6, 1825. e Resigned from the House, June 2, 1834.
Party Leaders in the United States Congress, 1789-2007 f
g h i j k l m n
373
Speaker Nathaniel P. Banks served in the House three separate times under three different party designations. In the 34th Congress, he served as an American Party Member. Resigned from the House, March 3, 1869. Elected Speaker, March 3, 1869, and served one day. Died in office, August 19, 1876. Died in office, August 19, 1934. Died in office, June 4, 1936. Died in office, September 15, 1940. Died in office, November 16, 1961. Resigned the Speakership, June 6, 1989; resigned from the House, June 30, 1989.
Table 2. House Republican Floor Leaders, 1899-2007 Floor Leader Sereno E. Payne James R. Mann Franklin W. Mondell Nicholas Longworth John Q. Tilson Bertrand H. Snell Joseph W. Martin, Jr. Charles Halleck Joseph W. Martin, Jr. Charles Halleck Joseph W. Martin, Jr. Charles Halleck Gerald R. Ford John J. Rhodes Robert H. Michel Richard K. Armey Tom DeLay Roy Blunt John Boehner
State NY IL WY OH CT NY MA IN MA IN MA IN MI AZ IL TX TX MO OH
Congress 56th-61st 62nd-65th 66th-67th 68th 69th-71st 72nd-75th 76th-79th 80th 81st-82nd 83rd 84th - 85th 86th-88th 89th-93rd 93rd-96th 97th-103rd 104th-107th 108th-109th 109th 109th, 1 10th -
Dates 1899-1911 1911-1919 1919-1923 1923-1925 1925-1931 1931-1939 1939-1947 1947-1949 1949-1953 1953-1955 1955-1959 1959-1965 1965-Dec. 6, 1973a Dec. 7, 1973-1981 1981-1995 1995-2003 2003-Sept. 28, 2005b Sept. 28, 2005-Feb. 2, 2006c Feb. 2, 2006-
Sources: See the “Source Notes and Bibliography” section at the end of this chapter for a description and full citation of all sources. Note: Bolded entries indicate Congresses in which the floor leader was also majority leader. a Resigned from the House on December 6, 1973, after having been confirmed by the Senate to become Vice President to fill the post vacated by the resignation of Spiro T. Agnew. b Resigned from leader position on September 28, 2005. c Appointed acting Republican floor leader on September 28, 2005, to replace Tom DeLay temporarily until the conference could hold new elections on February 2, 2006. He continued serving as Republican Whip during this period.
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Valerie Heitshusen
Party Floor Leader At an organizational meeting prior to the beginning of a new Congress, each party conference (or caucus) in the House selects its floor leader (also called majority leader or minority leader, as appropriate) in a secret-ballot vote. The majority party floor leader works closely with the Speaker and is largely responsible for the party’s daily legislative operations, in consultation with other party leaders. Similarly, the minority party floor leader directs the party’s ongoing legislative strategies and operations and typically serves as the spokesperson for the party in the House. Each party assigns additional responsibilities to its respective floor leader. For more information on the majority party floor leader position, see CRS Report RL30665, The Role of the House Majority Leader: An Overview, by Walter J. Oleszek. Table 3. House Democratic Floor Leaders, 1899-2007 Floor Leader James D. Richardson John Sharp Williams James B. (Champ) Clark Oscar W. Underwood Claude Kitchin James B. (Champ) Clark Claude Kitchin Finis J. Garrett John N. Garner Henry T. Rainey Joseph W. Byrns William B. Bankhead Sam T. Rayburn John W. McCormack Sam T. Rayburn John W. McCormack Sam T. Rayburn John W. McCormack Carl Albert Thomas Hale Boggs Thomas P. O’Neill, Jr. James Wright Thomas S. Foley Richard A. Gephardt
State TN MS MO AL NC MO NC IN TX IL TN AL TX MA TX MA TX MA OK LA MA TX WA MO
Nancy Pelosi Steny H. Hoyer
CA MD
Congress 56th-57th 58th-60th 60th-61st 62nd-63rd 64th-65th 66th 67th 68th-70th 71st 72nd 73rd 74th 75th-76th 76th-79th 80th 81st-82nd 83rd 84th-87th 87th-91st 92nd 93rd-94th 95th-99th 100th-101st 101st-103rd 104th-107th 108th-109th 110th-
Dates 1899-1903 1903-1908 1908-1911 1911-1915 1915-1919 1919-1921 1921-1923 1923-1929 1929-193 1 1931-1933 1933-1935 1935-June 4, 1936a 1937-Sept. 16, 1940b Sept. 16, 1940-1947c 1947-1949 1949-1953 1953-1955 1955-Jan. 10, 1962d Jan. 10, 1962-1971e 1971-1973f 1973-1977 1977-1987 1987-June 6, 1989g June 14, 1989h-2003 2003-2007 2007-
Sources: See the “Source Notes and Bibliography” section at the end of this chapter for a description and full citation of all sources. Note: Bolded entries indicate Congresses in which the floor leader was also majority leader.
Party Leaders in the United States Congress, 1789-2007 a
b c
d e
f
g
h
375
Elected Speaker, filling the vacancy caused by the death of Speaker Joseph W. Byrns. Records indicate that Representative John J. O’Connor of New York, chair of the House Rules Committee, served as acting majority leader during the 14 remaining days of the 74th Congress. O’Connor does not, however, appear to have been formally elected majority leader at that time and therefore is not included in this list. Elected Speaker following the death of Speaker William B. Bankhead. Elected majority leader on September 16, 1940, to fill post made vacant by the election of Sam Rayburn as Speaker. Elected Speaker at the start of the 87th Congress, 2nd session, following the death of Sam Rayburn. Elected majority leader at commencement of the 87th Congress, 2nd session, when Majority Leader John McCormack was elected Speaker to succeed Speaker Rayburn. Disappeared on a flight from Anchorage to Juneau, Alaska, October 16, 1972. Presumed dead pursuant to House Resolution 1, 93rd Congress. Elected Speaker on June 6, 1989, following Speaker James C. Wright’s resignation from that post on the same date. Elected majority leader on June 14, 1989, to fill the post made vacant by the election of Thomas S. Foley to be Speaker on June 6, 1989.
Party Whip Each House party caucus currently elects its own party whip at organizational meetings as a new Congress begins. House Republicans (or a representative group of their conference) have always elected their party whips; Democrats in the House appointed a chief whip until 1986. Chief deputy whips are currently appointed by the party’s chief whip; additional members to serve in the whip team are either similarly appointed or, instead, elected by subsets of the caucus. The whip organization is responsible for assessing the passage prospects for upcoming measures, mobilizing member support for leadership priorities, informing the party rank-and-file regarding legislative scheduling and initiatives, and informing the top party leadership regarding the sentiment of the rank-and-file. For more information, see CRS Report RS20499, House Leadership: Whip Organization, by Judy Schneider. Table 4. House Democratic Whips, 1901-2007 Whip Oscar W. Underwooda James T. Lloyd N/Ac Thomas M. Bell N/Ac William A. Oldfield John McDuffie
State AL MO
Arthur Greenwood Patrick J. Boland
IN PA
GA AR AL
Congress 56th 57th-60th 61st-62nd 63rd 64th-65th, 66th 67th-70th 70th-71st 72nd 73rd 74th-77th
Dates 1901 1901-1908b 1909-1913 1913-1915 1915-1921 1921-Nov. 19, 1928d 1928-1933 1933-1935 1935-May 18, 1942e
376
Valerie Heitshusen Table 4. Continued
Whip Robert Ramspeck John J. Sparkman John W. McCormacka J. Percy Priest John W. McCormacka Carl Alberta Thomas Hale Boggsa Thomas P. O’Neill, Jr.a John J. McFall John W. Brademas Thomas S. Foleya Tony Coelhog William H. Gray, III David E. Bonior
State GA AL MA TN MA OK LA MA CA IN WA CA PA MI
Nancy Pelosia Steny H. Hoyera James E. Clyburn
CA MD SC
Congress 77th-79th 79th 80th 81st-82nd 83rd 84th-87th 87th-91st 92nd 93rd-94th 95th-96th 97th-99th 100th-101st 101st-102nd 102nd-103rd 104th107th 107th-108th 108th -109th 110th-
Dates 1942-Dec. 31, 1945f 1946-1947 1947-1949 1949-1953 1953-1955 1955-1962 1962-1971 197 1-1973 1973-1977 1977-198 1 1981-1987 1987-June 14, 1989 June 14, 1989-Sept. 11, 1991h Sept. 11, 1991-Jan. 15, 2002i Jan. 15, 2002-2003j 2003-2007 2007-
Sources: See the “Source Notes and Bibliography” section at the end of this chapter for a description and full citation of all sources. Note: Bolded entries indicate Congresses in which the Democratic whip was the majority whip. a Ascended (or re-ascended) to party floor leader. b Resigned from position as Democratic whip in 1908 at the conclusion of the 60th Congress. c For these periods, there is no official record — in the minutes of the Democratic Caucus or elsewhere — of the name of the Democratic whip. Some scholars believe that Representative Thomas Bell may have been the whip from 1909 to 1919; others believe the whip for that period may have been Representative John Nance Garner. See Randall B. Ripley, “The Party Whip Organizations in the United States House of Representatives,” American Political Science Review, vol. 58, Sept., 1964, p. 504. d Died in office, November 19, 1928. e Died in office, May 18, 1942. f Resigned from the House of Representatives, December 31, 1945. g Representative Tony Coelho was the first elected Democratic whip. h Resigned from the House of Representatives, September 11, 1991. i Elected July 11, 1991, but did not assume the House Democratic whip post until his predecessor in the position, William H. Gray, III, resigned from Congress on September 11, 1991. j Elected on October 10, 2001, but did not assume the position of House Democratic whip until January 15, 2002, the date on which Bonior’s resignation as whip became effective.
Party Leaders in the United States Congress, 1789-2007
377
Table 5. House Republican Whips, 1897-2007 Whip James A. Tawney James E. Watson John W. Dwight
State MN IN NY
Charles H. Burke Charles M. Hamilton Harold Knutson Albert H. Vestal Carl G. Bachmann Harry L. Englebright Leslie C. Arends
SD WY MN IN WV CA IL
Robert H. Michelb Trent Lott Dick Cheney Newt Gingrich Tom DeLayb Roy D. Bluntb
IL MS WY GA TX MO
Congress 55th-58th 59th-60th 61st 62nd 63rd 64th-65th 66th-67th 68th-71st 72nd 73rd-78th 78th-79th 80th 81st-82nd 83rd 84th-93rd 94th-96th 97th-100th 101st 101st-103rd 104th-107th 108th-109th 110th-
Dates 1897-1905 1905-1909 1909-1913 1913-1915 1915-1919 1919-1923 1923-193 1 1931-1933 1933-May 13, 1943a 1943-1975
1975-1981 1981-1989 1989-Mar. 17, 1989c Mar. 22, 1989-1995c 1995-2003 2003d-
Sources: See the “Source Notes and Bibliography” section at the end of this chapter for a description and full citation of all sources. Note: Bolded entries indicate Congresses in which the Republican whip was the majority whip. a Died in office, May 13, 1943. b Ascended to party floor leader. c Elected House Republican whip on March 22, 1989, following Representative Dick Cheney’s resignation from the House on March 17, 1989, to become Secretary of Defense. d Served concurrently as whip and acting Republican floor leader from September 28, 2005, to February 2, 2006.
Conference or Caucus Chair The Republican Conference and the Democratic Caucus are the organizations of the members of the respective parties in the House. Each conference has an elected chair, who presides over its meetings. Decisions made by the conference (and often publicly promulgated by the chair) are generally regarded as the collective sentiment of the respective House party contingent.
378
Valerie Heitshusen Table 6. House Republican Conference Chairs, 1863-2007
Chair Justin S. Morrilla N/Ab Robert C. Schenckc Nathaniel P. Banksc Austin Blair Horace Maynard George W. McCrary Eugene Hale William P. Frye G.M. Robeson Joseph G. Cannon T.J. Henderson
State VT OH MA MI TN IA ME ME NJ IL IL
Charles H. Grosvenor Joseph G. Cannon William P. Hepburn F.D. Currier
OH IL IA NH
William S. Greene Horace M. Towner Sydney Anderson Willis C. Hawley
MA IA MN OR
Robert Luce Frederick R. Lehlbach Roy Woodruff
MA NJ MI
Clifford Hope
KS
Charles Hoeven Gerald R. Ford Melvin Laird John B. Anderson Samuel L. Devine Jack Kemp Dick Cheney Jerry Lewis Richard K. Armey John A. Boehner J.C. Watts
IA MI WI IL OH NY WY CA TX OH OK
Congress 38th-39th 40th 41st
Dates 1863-1867 1867-1869 1869-1871
42nd 43rd 44th 45th 46th 47th 48th-50th 51st 52nd-53rd 54th-55th 56th-57th 58th-60th 61st 62nd 63rd-65th 66th-67th 68th 69th-71st 72nd 73rd 74th 75th-79th 80th 81st 82nd 83rd 84th 85th-87th 88th 89th-90th 91st-95th 96th 97th-99th 100th 101st-102nd 103rd 104th-105th 106th-107th
187 1-1873 1873-1875 1875-1877 1877-1879 1879-1881 1881-1883 1883-1889 1889-1895 1895-1899 1899-1903 1903-1909 1909-1913 1913-1919 1919-1923 1923-1925 1925-1933 1933-1935 1935-1937 1937-1951
1951-1957
1957-1963 1963-1965 1965-1969 1969-1979 1979-198 1 1981-June 4, 1987d June 4, 1987-1989d 1989-1993 1993-1995 1995-1999 1999-2003
Party Leaders in the United States Congress, 1789-2007 Deborah Pryce Adam Putnam
OH FL
108th-109th 1 10th -
379
2003-2007 2007-
Sources: See the “Source Notes and Bibliography” section at the end of this chapter for a description and full citation of all sources. Note: Bolded entries indicate Congresses in which the Republican Party was in the majority. a Representative Justin S. Morrill is the first officially designated Republican caucus chair. There exists no clear evidence of formal chairs of Republican organizations in earlier Congresses. b Caucus minutes show three Members (Representatives Nathaniel Banks, Luke Poland, and Samuel Hooper) chairing three separate meetings. c Caucus minutes show Representative Robert C. Schenck elected chair, but Representative Nathaniel P. Banks chairing two early meetings, possibly in Schenck’s absence. d On June 4, 1987, Representative Dick Cheney was elected conference chair to succeed Representative Jack Kemp, who resigned from the post.
Table 7. House Democratic Caucus Chairs, 1849-2007 Chair James Thompson N/Aa Edson B. Olds George W. Jones N/Ab George S. Houston N/Ac William E. Niblackd Samuel J. Randalld N/Ae William E. Niblack Lucius Q.C. Lamar Hiester Clymer John F. House N/Af George W. Geddes J. Randolph Tucker Samuel S. Cox William S. Holman David B. Culberson James D. Richardson James Hay Robert L. Henry Henry D. Clayton Albert S. Burleson
State PA OH TN AL IN PA
IN MS PA TN OH VA NY IN TX TN VA TX AL TX
Congress 31st 32nd 33rd 34th 35th 36th 37th-40th 41st
Dates 1849-1851 1851-1853 1853-1855 1855-1857 1857-1859 1859-1861 1861-1869 1869-1871
42nd 43rd 44th 45th 46th 47th 48th 49th 50th 51st 52nd-53rd 54th 55th 56th-58th 59th 60th-61st 62nd
1871-1873 1873-1875 1875-1877 1877-1879 1879-188 1 1881-1883 1883-1885 1885-1887 1887-1889g 1889-1895 1895-1897 1897-1899 1899-1905 1905-1907 1907-1911h 1911-1913h
380
Valerie Heitshusen Table 7. Continued
Chair A. Mitchell Palmer E.W. Saunders Arthur G. Dewalt Sam T. Rayburn Henry T. Rainey Charles D. Carter Arthur Greenwood David Kincheloe William W. Arnold Clarence F. Lea Edward T. Taylor Robert L. Doughton John W. McCormack Richard M. Duncan Harry Sheppard Jere Cooper Aime Forand Francis E. Walter Jere Cooper Wilbur Mills John J. Rooney Melvin Price Francis E. Walter Albert Thomas Eugene Keogh Dan Rostenkowski Olin Teague Philip Burton Thomas S. Foley Gillis W. Long Richard Gephardt William H. Gray, III Steny H. Hoyer Vic Fazio Martin Frost Robert Menendez James E. Clyburn Rahm Emanuel
State PA VA PA TX IL OK IN KY IL CA CO NC MA MO CA TN RI PA TN AR NY IL PA TX NY IL TX CA WA LA MO PA MD CA TX NJ SC IL
Congress 63rd 64th-65th 66th 67th 68th 69th 70th 71st 72nd 73rd 74th 75th 76th 77th 78th 79th 80th 81st 82nd 83rd 84th 85th-86th 87th-88th 88th 89th 90th-91st 92nd-93rd 94th 95th-96th 97th-98th 99th-100th 101st 101st-103rd 104th-105th 106th-107th 108th-109th 109th 1 10th -
Dates 1913-1915 1915-1919 1919-1921 1921-1923 1923-1925 1925-1927 1927-1929 1929-1 930i 1931-1933 1933-1935 1935-1937 1937-1939 1939-Sept. 16, 1940j 1941-1943 1943-1945 1945-1947 1947-1949 1949-1951 1951-1953 1953-1955 1955-1957 1957-1961 1961-May 31, 1963k 1964-1965 1965-1967 1967-1971 1971-1975 1975-1977 1977-1981 198 1-1985 1985-1989 Jan. 4-June 14, 1989l June 21, 1989-1995m 1995-1999 1999-2003 2003-Dec. 16, 2005n Dec. 16, 2005n-2007 2007-
Sources: See the “Source Notes and Bibliography” section at the end of this chapter for a description and full citation of all sources. Note: Bolded entries indicate Congresses in which the Democratic Party was in the majority.
Party Leaders in the United States Congress, 1789-2007 a
b c
d
e
f
g
h
i
j
k l
m
n
381
No clear records remain for this Congress. In early practice, the caucus chair often offered the various organizational resolutions at the beginning of a Congress (e.g., the nomination of his party’s candidate for Speaker, or the motion to elect the Speaker); examination of these motions can often help in a determination of who was caucus chair. However, several different Democratic Members offered the organizing resolutions for the 3 1st Congress. No clear data for this period exist. No clear data for this period exist. Representative John Hickman nominated Representative F.P. Blair as Speaker in 1861, but no records show whether Hickman was caucus chair. Representative Samuel J. Randall nominated the party’s candidate for Speaker. Caucus records, however, show both Representatives William B. Niblack and Randall as having served as chair during the Congress. The caucus records specify no dates of service. Representative Fernando Wood nominated the Democratic leadership slate in the House, but there is no other evidence to show he was elected caucus chair. Available data show that Representative John F. House offered the Democrats’ nomination for Speaker in the 47th Congress. However, later data show Representative W.S. Rosecrans issuing the next call for a Democratic Caucus meeting; there is no evidence to suggest that Rosecrans was actually elected caucus chair. Former Parliamentarian Clarence Cannon’s notes state that “[Representative Samuel J.] Cox died during this Congress and [Representative James B.] McCreary evidently succeeded or acted for him.” Representative Cox died on September 10, 1889, six months after the sine die adjournment of the 50th Congress and the convening of the 51st Congress. Caucus records are contradictory for this period. They show the election of Representative James Hay as chair on January 19, 1911, but do not mention a resignation by incumbent chair Henry P. Clayton, nor do they specify that Hay was elected chair for the new Congress. Later, they show the election of Representative Albert S. Burleson on April 11, 1911. Resigned from the House, October 5, 1930; there is no record of an election to fill the vacancy as caucus chair. Resigned following election as majority floor leader, September 16, 1940; records do not indicate that a successor was chosen during the remainder of the Congress. Died in office, May 31, 1963. Caucus chair post vacant until January 21, 1964. Representative William H. Gray, III, vacated the caucus chair post when he was elected Democratic whip on June 14, 1989. Representative Steny H. Hoyer was elected caucus chair on June 21, 1989, following the June 14, 1989 election of Representative William H. Gray as Democratic whip. Representative Robert Menendez resigned from the House on January 16, 2006, after being apppointed to the Senate seat for New Jersey vacated by Jon Corzine when he was elected governor. Representative Menendez had previously resigned from the caucus chair position, to which Representative James E. Clyburn was elected on December 16, 2005.
SENATE POSITIONS: DESCRIPTIONS AND HISTORICAL TABLES President Pro Tempore of the Senate Pursuant to Article 1, Section 3, of the U.S. Constitution, the President pro tempore of the Senate is the chamber’s presiding officer in the absence of the President of the Senate (the Vice President of the United States). The President pro tempore is elected by the full Senate as the formal institutional leader, and in current practice, is the longest serving member of the
382
Valerie Heitshusen
majority party.7 Until 1890, the Senate elected a President pro tempore whenever the Vice President was not in attendance, whether for a day, or permanently, as in the case of the Vice President’s death or resignation. When the Vice President returned, the President pro tempore lost his place. When the Vice President was again absent, the Senate again elected a President pro tempore — in many cases the same Senator who had been chosen before. By the standing order agreed to on March 12, 1890, the Senate declared that the President pro tempore shall hold the office during “the pleasure of the Senate and until another is elected, and shall execute the duties thereof during all future absences of the Vice President until the Senate does otherwise order.”8 The Senate’s President pro tempore is, pursuant to statute, currently third in the line of presidential succession (behind the Vice President and the Speaker of the House). In the Succession Act of 1792, the position was initially designated to serve in line after the Vice President.9 An 1886 act altered the succession line by replacing congressional leaders with cabinet secretaries, but the President pro tempore post was reinstated in the line (in the current position) in 1947.10 As presiding officer, the President pro tempore has the power to decide points of order and enforce decorum on the floor. The President pro tempore has other formal powers (e.g., appointing conferees; appointing certain Senate officers; and serving on, or appointing others to, working groups, commissions and advisory boards); however, because the direction of Senate business has fallen in modern times to the majority leader, almost all of these powers are actually exercised by the majority leader in practice. As explained in the notes to Table 9 and Table 10 below, the Senate has also had past occasion to select a Deputy President pro tempore and a Permanent Acting President pro tempore. For more information on the President pro tempore (and the deputy and acting posts), consult CRS Report RL30960, The President Pro Tempore of the Senate: History and Authority of the Office, by Christopher M. Davis. Table 8. Presidents Pro Tempore of the Senate, 1789-2007 Name John Langdon Richard Henry Lee John Langdon
Party Pro-Admin Anti-Admin Pro-Admin
State NH VA NH
Congress 1st 2nd 2nd
Ralph Izard Henry Tazewell
Pro-Admin Anti-Admin R(DR)a F F F F F F F F
SC VA
3rd 3rd 4th 4th 4th 5th 5th 5th 5th 5th 6th
Samuel Livermore William Bingham William Bradford Jacob Read Theodore Sedgwick John Laurance James Ross Samuel Livermore
NH PA RI SC MA NY PA NH
Date Elected Apr. 6, 1789 Apr. 18, 1792 Nov. 5, 1792 Mar. 1, 1793 May 31, 1794 Feb. 20, 1795 Dec. 7, 1795 May 6, 1796 Feb. 16, 1797 July 6, 1797 Nov. 22, 1797 June 27, 1798 Dec. 6, 1798 Mar. 1, 1799 Dec. 22, 1799
Party Leaders in the United States Congress, 1789-2007 Uriah Tracy John E. Howard James Hillhouse Abraham Baldwin Stephen R. Bradley
F F F R R(DR)a
CT MD CT GA VT
6th 6th 6th 7th 7th
John Brown
Anti-Admin
KY
8th
Jesse Franklin Joseph Anderson
R(DR)a R(DR)a
NC TN
8th 8th
Samuel Smith
R(DR)a
MD
Stephen R. Bradley John Milledge Andrew Gregg John Gaillard
R(DR)a R(DR)a R(DR)a R(DR)a
VT GA PA SC
9th 10th 10th 10th 1 1th 11th
John Pope William H. Crawford Joseph B. Varnum John Gaillard
R(DR)a R(DR)a R(DR)a R(DR)a
KY GA MA SC
James Barbour
R(DR)a
VA
John Gaillard
R(DR)a CRR J
SC
Nathaniel Macon
J
NC
Samuel Smith
J
MD
Littleton Tazewell Hugh L. White
J J
VA TN
George Poindexter John Tyler
AJ AJ
MS VA
11th 12th 13th 13th 14th 15th 15th 16th 16th 17th 18th 19th 19th
20th 21st 22nd 22nd 23rd 23rd 23rd
383
May 14, 1800 Nov. 21, 1800 Feb. 28, 1801 Dec. 7, 1801 Dec. 14, 1802 Feb. 25, 1803 Mar. 2, 1803 Oct. 17, 1803 Jan. 23, 1804 Mar. 10, 1804 Jan. 15, 1805 Feb. 28, 1805 Mar. 2, 1805 Dec. 2, 1805 Mar. 18, 1806 Mar. 2, 1807 Apr. 16, 1808 Dec. 28, 1808 Jan. 30, 1809 June 26, 1809 Feb. 28, 1810 Apr. 17, 1810 Feb. 23, 1811 Mar. 24, 1812 Dec. 6, 1813 Apr. 18, 1814 Nov. 25, 1814b [no election] Mar. 6, 1817 Mar. 31, 1918 Feb. 15, 1819 [no election] Jan. 25, 1820 Feb. 1, 1822 Feb. 19, 1823 May 21, 1824 Mar. 9, 1825 May 20, 1826 Jan. 2, 1827 Mar. 2, 1827 May 15, 1828 Mar. 13, 1829 May 29, 1830 Mar. 1, 1831 July 9, 1832 Dec. 3, 1832 [no election] June 28, 1834 Mar. 3, 1835
384
Valerie Heitshusen Table 8. Continued
Name William R. King
Party J D
State AL
Congress 24th 25th 26th 27th
Samuel Southard Willie P. Mangum
W W
NJ NC
Ambrose H. Sevier David R. Atchison
D D
AR MO
27th 27th 28th 29th 29th 30th 31st
William R. King
D
AL
31st 32nd
David R. Atchison
D
MO
Lewis Cass Jesse D. Bright
D D
MI IN
Charles E. Stuart James M. Mason
D D
MI VA
Thomas J. Rusk Benjamin Fitzpatrick
D D
TX AL
32nd 33rd 33rd 33rd 34th 34th 34th 35th 35th 35th 36th
Jesse D. Bright Benjamin Fitzpatrick Solomon Foot
D D R
IN AL VT
36th 36th 36th 37th 38th
Daniel Clark
R
NH
38th
Lafayette S. Foster
R
CT
39th
Date Elected July 1, 1836 Jan. 28, 1837 Mar. 7, 1837 Oct. 13, 1837 July 2, 1838 Feb. 25, 1839 July 3, 1840 Mar. 3, 1841 Mar. 4, 1841 Mar. 11, 1841 May 31, 1842 [no election] Dec. 27, 1845c Aug. 8, 1846 Jan. 11, 1847 Mar. 3, 1847 Feb. 2, 1848 June 1, 1848 June 26, 1848 July 29, 1848 Dec. 26, 1848 Mar. 2, 1849 Mar. 5, 1849 Mar. 16, 1849 May 6, 1850 July 11, 1850 [no election] Dec. 20, 1852 Mar. 4, 1853 Dec. 4, 1854 Dec. 5, 1854 June 11, 1856 June 9, 1856 Jan. 6, 1857 Mar. 4, 1857 Mar. 14, 1857 Dec. 7, 1857 Mar. 29, 1858 June 14, 1858 Jan. 25, 1858 Mar. 9, 1859 Dec. 19, 1859 Feb. 20, 1860 June 12, 1860 June 26, 1860 Feb. 16, 1861 Mar. 23, 1861 July 18, 1861 Jan. 15, 1862 Mar. 31, 1862 June 19, 1862 Feb. 18, 1863 Mar. 4, 1863 Dec. 18, 1863 Feb. 23, 1864 Apr. 11, 1864 Apr. 26, 1864 Feb. 9, 1865 Mar. 7, 1865
Party Leaders in the United States Congress, 1789-2007 39th 40th 41st 42nd
Benjamin F. Wade
R
OH
Henry B. Anthony
R
RI
Matthew H. Carpenter
R
WI
43rd
Henry B. Anthony
R
RI
43rd
Thomas W. Ferry
R
MI
44th 45th
Allen G. Thurman
D
OH
46th
Thomas F. Bayard, Sr. David Davis George F. Edmonds
D I R
DE IL VT
John Sherman John J. Ingalls
R R
OH KS
Charles F. Manderson Isham G. Harris Matt W. Ransom Isham G. Harris William P. Frye
R D D D R
NE TN NC TN ME
Charles Curtis Augustus O. Bacon Jacob H. Gallinger Henry Cabot Lodge, Sr. Frank B. Brandegee James P. Clarke
R D R R R D
KS GA NH MA CT AR
47th 47th 47th 48th 49th 49th 50th 51st 51st-53rd 53rd 53rd 53rd 54th-56th 57th-59th 60th-62nd 62nd 62nd 62nd 62nd 62nd 63rd 64th
385
Mar. 2, 1867 [no election] Mar. 23, 1869 Apr. 9, 1869 May 28, 1870 July 1, 1870 July 14, 1870 Mar. 10, 1871 Apr. 17, 1871 May 23, 1871 Dec. 21, 1871 Feb. 23, 1872 June 8, 1872 Dec. 4, 1872 Dec. 13, 1872 Dec. 20, 1872 Jan. 24, 1873 Mar. 12, 1873 Mar. 26, 1873 Dec. 11, 1873 Dec. 23, 1874 Jan. 25, 1875 Feb. 15, 1875 Mar. 9, 1875 Mar. 19, 1875 Dec. 20, 1875 Mar. 5, 1877 Feb. 26, 1878 Apr. 17, 1878 Mar. 3, 1879 Apr. 15, 1879 Apr. 7, 1880 May 6, 1880 Oct. 10, 1881 Oct. 13, 1881 Mar. 3, 1883 Jan. 14, 1884 Dec. 7, 1885 Feb. 25, 1887 [no election] Mar. 7, 1889 Apr. 2, 1889 Feb. 28, 1890 Apr. 3, 1890d Mar. 2, 1891 Mar. 22, 1893 Jan. 7, 1895 Jan. 10, 1895 Feb. 7, 1896 Mar. 7, 1901 Dec. 5, 1907 Dec. 4, 1911 Jan. 15, 1912 Feb. 12, 1912 Mar. 25, 1912 May 25, 1912 Mar. 13, 1913 Dec. 6, 1915
386
Valerie Heitshusen Table 8. Continued
Name Willard Saulsbury, Jr. Albert B. Cummins
Party D R
State DE IA
George H. Moses
R
NH
Key Pittman
D
NV
William H. King Pat Harrison Carter Glass
D D D
UT MS VA
Kenneth D. McKellar Arthur Vandenberg Kenneth D. McKellar Styles Bridges Walter F. George Carl T. Hayden Richard B. Russell, Jr. Allen J. Ellender James O. Eastland Warren G. Magnuson Milton R. Young Strom Thurmond John C. Stennis Robert C. Byrd Strom Thurmond Robert C. Byrd Strom Thurmond Robert C. Byrdf Ted Stevens
D R D R D D D D D D R R D D R D R D R
TN MI TN NH GA AZ GA LA MS WA ND SC MS WV SC WV SC WV AK
Robert C. Byrd
D
WV
Congress 64th-65th 66th 67th-69th 69th 70th-72nd 73rd 74th-76th 76th 77th 77th 78th 79th 80th 81st-82nd 83rd 84th 85th-90th 91st-92nd 92nd 92nd-95th 96th 96th 97th-99th 100th 101st-103rd 104th-106th 107th 107th 107th 108th 109th 1 10th
Date Elected Dec. 14, 1916 May 19, 1919 Mar. 7, 1921 Mar. 6, 1925 Dec. 15, 1927 Mar. 9, 1933 Jan. 7, 1935 Nov. 19, 1940 Jan. 6, 1941 July 10, 1941 Jan. 5, 1943 Jan. 6, 1945 Jan. 4, 1947 Jan. 3, 1949 Jan. 3, 1953 Jan. 5, 1955 Jan. 3, 1957 Jan. 3, 1969 Jan. 22, 1971 July 28, 1972 Jan. 15, 1979 Dec. 4, 1980 Jan. 5, 1981 Jan. 6, 1987 Jan. 3, 1989 Jan. 4, 1995 Jan. 3, 2001e Jan. 3, 2001e June 6, 2001 Jan. 7, 2003 Jan. 4, 2005 Jan. 4, 2007
Sources: The principal source for this table is Byrd’s Historical Statistics, pp. 647-653. See the “Source Notes and Bibliography” section at the end of this chapter for a description and full citation of all sources. Notes: A key to party abbreviations can be found in the Appendix of this chapter. Note that several Senators holding the President pro tempore position were members of (or identified with) different political parties during their congressional careers. This table lists the party with which each individual was affiliated at the time of his service as President pro tempore. In cases in which the historical sources indicate a party “switch” in the midst of a calendar year (without a specific date), it is presumed that the party switch coincided with the beginning of a new Congress. a Although the Biographical Directory of the American Congress, 1 774-1996 identifies these Presidents pro tempore as Republicans, the party designation “Democratic Republicans” is more
Party Leaders in the United States Congress, 1789-2007
b
c
d
e
f
387
widely used and familiar to readers. This designation, R(DR), should not be taken to refer to the contemporary Republican Party, which did not emerge until the 1 850s. Senator John Gaillard was elected after the death of Vice President Elbridge Gerry on November 23, 1814, and continued to serve throughout the 14th Congress, as there was no Vice President. There was no actual election. Senator Ambrose H. Sevier was “permitted to occupy the chair for the day.” In their table of Presidents pro tempore, Gerald Gamm and Steven S. Smith do not include Sevier’ s service. See Gerald Gamm and Steven S. Smith, “Last Among Equals,” “Table 1: Presidents Pro Tempore of the Senate,” p.13. As noted above, in March 1890, the Senate adopted a resolution stating that Presidents pro tempore would hold office continuously until the election of another President pro tempore, rather than being elected only for the period in which the Vice President was absent. That system has continued to the present. When the 107th Congress convened on January 3, 2001, Republican George W. Bush had been elected President. Richard B. Cheney, Vice President-elect, would not be sworn in until January 20, 2001. As a consequence, the Senate was evenly divided, 50 Democrats and 50 Republicans. When Congress convened on January 3, 2001, Vice President Al Gore, a Democrat, remained as President of the Senate, providing Senate Democrats with an effective majority of one. On January 3, 2001, the Senate adopted S. Res. 3, which provided for the election of Senator Robert C. Byrd, Democrat of West Virginia, to serve as President pro tempore from January 3 until the inauguration of President Bush and Vice President Cheney at noon on January 20, at which time Senator Strom Thurmond, Republican of South Carolina, would assume the office of President pro tempore. See “Election of the Honorable Robert C. Byrd as President Pro Tempore and Election of the Honorable Strom Thurmond as President Pro Tempore,” Congressional Record, vol. 147, January 3, 2001, p. 7. Party control in the Senate shifted with the decision in May, 2001, of Senator Jim Jeffords to leave the Republican party and to become an Independent, caucusing with Senate Democrats. On June 6, the Senate agreed to S. Res. 100 electing Senator Byrd President pro tempore once again.
The Senate has, on occasion, created special offices connected to the position of President pro tempore. These two positions — detailed below — were created for specific individuals under narrow circumstances and are not currently in use.
Deputy Presidents Pro Tempore Pursuant to S. Res. 17 (95th Congress), agreed to January 10, 1977, the Senate established (effective January 5, 1977) the post of Deputy President pro tempore of the Senate to be held by “any Member of the Senate who has held the Office of President of the United States or Vice President of the United States.” Senator Hubert H. Humphrey was Deputy President pro tempore until his death on January 13, 1978. In the 100th Congress, due to concerns over the health of the President pro tempore, Senate John S. Stennis, the Senate agreed on January 28, 1987, to S. Res. 90, authorizing the Senate to designate a Senator to serve as Deputy President pro tempore during that Congress, in addition to Senators who hold such office under the authority of S. Res. 17 (95th Congress). Accordingly, on the same date the Senate agreed to S. Res. 91 (100th Congress), designating Senator George H. Mitchell Deputy President pro tempore.
388
Valerie Heitshusen Table 9. Deputy Presidents Pro Tempore of the Senate, 1977-2007
Deputy President Pro Tempore Hubert H. Humphrey George J. Mitchell a
Party
State
Congress
Dates
D D
MN ME
95th 100th
Jan. 5, 1977-Jan. 13, 1978 Jan. 28, 1987-Nov. 29, 1988a
Senator Mitchell served as Deputy President pro tempore until he was elected majority leader for the 101st Congress on November 29, 1988.
Permanent Acting President Pro Tempore This post was initially established in 1963 after Senate Majority Leader Michael J. Mansfield became concerned that the stamina of then-President pro tempore, Senator Carl T. Hayden, would be overly taxed by presiding over the prolonged debate on civil rights legislation. In response, the Senate adopted S. Res. 232 and S. Res. 238 (88th Congress) making Senator Lee Metcalf Acting President pro tempore from December 9, 1963, until the meeting of the second session of the 88th Congress. Continuing concerns over the presiding officer’s responsibilities led the Senate, on February 7, 1964, to authorize Senator Metcalf “to perform the duties of the Chair as Acting President pro tempore until otherwise ordered by the Senate” via S. Res. 296 (88th Congress). Senator Metcalf held the post throughout his remaining 14 years in the Senate. Table 10. Permanent Acting President Pro Tempore of the Senate, 1964-2007 Permanent Acting President Pro Tempore
Party
State
Congress
Dates
Lee Metcalf
D
MT
88th-95th
Feb. 7, 1964-Jan. 12, 1978
Party Floor Leader Each Senate party conference selects its floor leader (also called majority leader or minority leader, as appropriate) in a secret-ballot vote at its organizational meeting prior to the beginning of a new Congress. While these positions developed later than (and arose from) the post of conference chair, they now represent the top post in each party. The majority leader is the lead spokesperson for the party in the chamber and is also responsible for scheduling the legislative activity of the Senate. By precedent established in 1937, the majority leader is afforded priority recognition on the floor. The minority leader leads and speaks for the minority party and is consulted by the majority leader in scheduling Senate floor activity; he also has preferential floor recognition, after the majority leader. The rules of each party conference assign additional responsibilities to each floor leader, as well. In current practice, the floor leader for Senate Democrats also serves as the party’s conference chair. (See next section for description of conference chair positions.)
Party Leaders in the United States Congress, 1789-2007
389
Table 11. Senate Republican Floor Leaders, 1919-2007 Floor Leader Henry Cabot Lodge, Sr.a, b, c Charles Curtisa, e James E. Watsona Charles L. McNarya Wallace H. White, Jr.
State MA KS IN OR ME
Kenneth S. Wherry Styles Bridges Robert A. Taft William F. Knowland
NE NH OH CA
Everett Dirksen Hugh Scott Howard H. Baker
IL PA TN
Robert H. Dole
KS
Trent Lott
MS
William H. Frist Mitch McConnell
TN KY
Congress 66th-68th 68th-70th 71st-72nd 73rd-78th 79th 80th 81st-82nd 82nd 83rd 83rd 84th-85th 86th-91st 91st-94th 95th-96th 97th-98th 99th 100th-103rd 104th 104th-106th 107th 108th-109th 1 10th
Dates 1919-Nov. 9, 1924d Nov. 28, 1924-1929 1929-1933 1933-Feb. 25, 1944f 1945-1949 1949-Nov. 29, 1951g 1952-1953 1953-July 31, 1953h Aug. 4, 1953-1959 1959-Sept. 7, 1969i Sept. 24, 1969-1977 1977-1985 1985-June 11, 1996j
June 12, 1996 - Dec. 20, 2002k Dec. 23, 2002l-2007 2007-
Sources: The principal source for this table is Byrd’s Historical Statistics, p. 505, with some details provided by Riddick, Majority and Minority Leaders of the Senate, pp. 1-11. See the “Source Notes and Bibliography” section at the end of this chapter for a description and full citation of all sources. Notes: Bolded entries indicate Congresses in which the floor leader was also majority leader for at least half of the Congress. For example, while the Republicans began the 107th Congress with a controlling majority, party control switched to the Democrats in June of the first session; the 107thCongress is therefore treated as being under Democratic party control in these tables, where applicable. a Indicates a leader who was also conference chair. Prior to 1945, the Republican conference chair and floor leader positions were held by the same individual. b While Byrd’s volume provisionally lists Republican Conference Chair Henry Cabot Lodge, Sr, as the first Republican floor leader in practice, some sources treat two previous conference chairs as floor leaders in practice. For example, Riddick includes (in Table III, “Seniority of Majority and Minority Leaders of the Senate,” p.1 1) conference chairs Senator Shelby M. Cullom as majority leader from 1911-1913 and Senator Jacob H. Gallinger as minority leader from 1913 until his death on August 17, 1918. c Elected conference chair in the 65th Congress on August 24, 1918, to replace Senator Gallinger. Senator Lodge was not officially a floor leader; he was simply reelected to the conference chair post in 1919, and the party had not yet employed the designation floor leader. Scholarly opinion is that his role in the 66th to 68th Congresses, for all intents and purposes, was that of the floor leader, however. Byrd’s volume provisionally lists him as the first majority leader (Table 4-6, p. 506); Riddick
390
d e
f
g h i j k
l
Valerie Heitshusen
includes him in Table III, p.11. Also see Widenor, “Henry Cabot Lodge: The Astute Parliamentarian,” for additional supporting details. Died in office, November 9, 1924. Senator Charles Curtis was elected conference chair on November 28, 1924, to replace Senator Henry Cabot Lodge, Sr., who died on November 9. On March 5, 1925, the Republican conference also designated him as floor leader, the first Senator to hold the title. Senator Charles L. McNary died on February 25, 1944. There is no reference in congressional sources to the formal selection of a new Republican floor leader during the 78th Congress. In his article summarizing “The Second Session of the Seventy-Eighth Congress (January 10- December 18, 1944),” American Political Science Review, vol. 39, April 1945, pp. 3 17-336, Floyd Riddick makes no mention of McNary’s death or the selection of a successor. Died in office, November 29, 1951. Died in office, July 31, 1953. Died in office, September 7, 1969. Resigned from Senate, June 11, 1996. Elected June 12, 1996, to replace Senator Robert H. Dole, and resigned from majority leader post, December 20, 2002. Elected December 23, 2002, to replace Senator Trent Lott.
Table 12. Senate Democratic Floor Leaders and Conference Chairs, 1893-2007 Floor Leader Arthur P. Gormana, b
State MD
N/Ac John T. Morganb James K. Jonesb Arthur P. Gormand Joseph C.S. Blackburnf Charles A. Culberson Hernando D. Money Thomas S. Martinf John Worth Kernf Thomas S. Martin Oscar W. Underwoodf Joseph T. Robinson
AL AR MD KY TX MS VA IN VA AL AR
Alben W. Barkley
KY
Scott W. Lucas Ernest W. McFarland Lyndon B. Johnson
IL AZ TX
Mike Mansfield Robert C. Byrd
MT WV
Congress 53rd 54th-55th 55th-56th 57th 57th 58th-59th 59th 60th 61st 62nd 63rd-64th 65th 66th 66th-67th 68th-75th 73rd-75th 75th-79th 80th 81st 82nd 83rd 84th-86th 87th-94th 95th-96th 97th-99th
Dates 1893-1898 1898-1901 1901-1902 1902-1903 1903-June 4, 1906e June 9, 1906-1907g 1907-1909 1909-1911 1911-1913 1913-1917 1917-Nov. 12, 1919h Apr. 27, 1920-1923i 1923-July 14, 1937j July 22, 1937-1949k 1949-195 1 195 1-1953 1953-1961 1961-1977 1977-1989
Party Leaders in the United States Congress, 1789-2007
George J. Mitchell Tom Daschlel
ME SD
Harry Reid
NV
100th 101st-103rd 104th-106th 107th 108th 109th 110th-
391
1989-1995 1995-2005 2005-
Sources: See the “Source Notes and Bibliography” section at the end of this chapter for a description and full citation of all sources. The principal source for this table is Byrd’s Historical Statistics, p. 503. Some additional details are from Riddick’ s Majority and Minority Leaders of the Senate, p. 1- 11. Initially the Senate Democratic Caucus, the name was officially changed to the Democratic Conference in 1925. Notes: Bolded entries indicate Congresses in which the floor leader was also majority leader for at least half of the Congress. For example, while the Republicans began the 107th Congress with a controlling majority, party control switched to the Democrats in June of the first session; the 107th Congress is therefore treated as being under Democratic party control in these tables, where applicable. a Byrd’s identification of the first Democratic conference chair begins with Senator Gorman in the 58th Congress. Other sources, however, rely on unofficial records to give Gorman that title in the 53rd Congress, with Senators Morgan and Jones identified as such in later Congresses (after a period in which reliable sources do not exist); see, for example, Riddick, Majority and Minority Leaders of the Senate, Table I, p. 7. b Riddick identifies Senator Gorman as the first Democratic conference chair in 1893, though Byrd does not designate him as such until the 58th Congress. This is also the case with the designations of Senators Morgan in 1901 and Jones in 1902. c No reliable records from the caucus exist for this period. d Senator Gorman’s designation as conference chair in the 58th Congress is the first that can be confirmed from official caucus minutes. e Died June 4, 1906. f Secondary sources generally identify Senator Kern as the first Democratic floor leader in the modern sense of the term. See, for example, Oleszek, “John Worth Kern,” p. 10. Others have made a case for designating Senator Blackburn as the first, since he was referred to as the Democrats’ “chosen official leader” in a congratulatory resolution. See Riddick, p. 3. Still others consider Senator Martin an early floor leader; see Oleszek, “John Worth Kern,” note 13. Senator Underwood is the first person to be officially called floor leader in minutes of the party conference, so some sources (e.g., Byrd) treat him as the first Democratic floor leader. g Elected June 9, 1906. h Died November 12, 1919. An initial caucus vote to replace Senator Martin resulted in a tie between Senator Gilbert M. Hitchcock and Senator Underwood. Hitchcock briefly was acting leader until Underwood was elected in April of 1920. See Riddick, p. 9, note 2. i Elected April 27, 1920. j Died July 14, 1937. k Elected July 22, 1937. l In the 107th Congress, Senator Daschle became majority leader on June 6, 2001, following a change in party control of the Senate from Republican to Democratic.
392
Valerie Heitshusen
Conference Chair Each party has a conference organization consisting of all the elected Senators from that party; it is the main body through which the party contingent at large decides and communicates its legislative priorities. While each party’s conference chair posts were the first formal party leadership positions in the Senate, eventually floor leader positions were established as uppermost in each party’s leadership hierarchy. Since 1945, Republicans have elected their conference chair separately from other leadership posts, but the elected Democratic floor leader also serves as chair of the Democratic Conference. (See Table 12 for the list of Democratic floor leaders / conference chairs.) Table 13. Senate Republican Conference Chairs, 1893-2007 Chair John Shermana
State OH
William B. Allison Eugene Hale Orville Platt Eugene Hale William B. Allison Eugene Hale William B. Allisond Nelson W. Aldrich Eugene Hale Shelby M. Cullom Jacob H. Gallinger Henry Cabot Lodge, Sr.e
IA ME CT ME IA ME IA RI ME IL NH MA
Charles Curtise James E. Watsone Charles L. McNarye Arthur H. Vandenberg Eugene D. Millikin
KS IN OR MI CO
Leverett Saltonstall Margaret Chase Smith Norris Cotton Carl T. Curtis Robert Packwood James A. McClure John Chafee
MA ME NH NE OR ID RI
Thad Cochran
MS
Congress 53rd 54th 55th-56th 57th 57th 58th 58th-59th 59th 59th 60th 60th-61st 61st-62nd 63rd-65th 65th 66th-68th 68th-70th 71st-72nd 73rd-78th 79th 80th-82nd 83rd 84th 85th-89th 90th-92nd 93rd 94th-95th 96th 97th-98th 99th 101st 102nd-103rd
Dates 1893-1897 1897-1901b 1901-1902 1902-1903c 1903-1904 1904-1906 1906-1907 1907-1908 1908-1909 1909-1910 1910-1913 1913-1918 1918-1924 1924-1929 1929-1932 1933-1944 1945-1946 1947-1956
1957-1966 1967-1972 1973-1974 1975-1978 1979-1980 198 1-1984 1985-1990 1991-1996
Party Leaders in the United States Congress, 1789-2007
Connie Mack Richard J. Santorum
FL PA
Jon Kyl
AZ
104th 105th-106th 107th 108th-109th 110th -
393
1997-2000 2001-2006 2007-
Sources: See the “Source Notes and Bibliography” section at the end of this chapter for a description and full citation of all sources. The principal source for this table is Byrd’s Historical Statistics, p. 502. Additional detail is from Riddick, Majority and Minority Leaders of the Senate, pp. 7-9). Records of the Republican Conference are extant only from 1911. Secondary sources (see Riddick, pp. 7-9) provide information for years prior to 1893. Rothman, in his work, claims that Senator Henry B. Anthony served as Republican caucus chair for an undetermined number of years beginning in 1869 and that Senator George Franklin Edmunds served as chair from 1885 to 1891. See David J. Rothman, Politics and Power: The United States Senate, 1869-1901, Cambridge, MA: Harvard University Press, 1966, pp. 6, 28-3 0. Notes: Bolded entries indicate Congresses in which the Republican party was in the majority for at least half of the Congress. For example, while the Republicans began the 107th Congress with a controlling majority, party control switched to the Democrats in June of the first session; the 107th Congress is therefore treated as being under Democratic party control in these tables, where applicable. Except for those individuals who also served as floor leader (as designated in next note), sources do not provide specific dates of conference chair service (e.g., when there was a death or resignation and, as a result, a mid-session election was held). Therefore, this table provides only years of service for each conference chair and gives no specific dates for transitions that occurred within a session. a Riddick indicates that secondary sources confirm Sherman as the first Republican conference chair (Table I, p.7); Byrd starts his list (Table 4-1, p.502) with Allison’s tenure in the 55th Congress, but notes Sherman’s previous tenure in a footnote. b Byrd lists Senator Allison’s tenure in the position as 1897-1901, but Riddick maintains that reliable records do not exist for 1898 to 1901. c Using unofficial sources, Riddick (Table I, p. 7) indicates that Senator George H. Hoar was briefly conference chair in 1903. Byrd does not include him. d Using unofficial sources, Riddick (Table I, p. 7) indicates Senator Allison was chair; Byrd does not include him. e Indicates individuals who were simultaneously identified as the floor leader. See Table 11 of this chapter.
Party Whip Senate Democrats first selected a party whip in 1913; Republicans followed in 1915. Some accounts of these early selections imply that the individuals were initially appointed, but other contemporary accounts refer to conference elections for the posts. (Republicans first formally codified their conference procedures in 1944, making it clear that the whip post was elected by the conference.) Today, each party conference elects a party whip, who is also known in the Senate as the assistant majority leader or assistant minority leader, depending on the party. Typically, deputy whips are also appointed to assist the whip operation. The whips communicate leadership priorities to the party rank-and-file (and vice versa), provide leaders an assessment of member support for (or opposition to) pending legislative matters, and mobilize support for leadership-supported measures under consideration. For more
394
Valerie Heitshusen
information, see CRS Report RS20887, Senate Leadership: Whip Organization, by Judy Schneider. Table 14. Senate Democratic Whips, 191 3-2007 Whip James Hamilton Lewisa Peter G. Gerry Morris Sheppard James Hamilton Lewis Sherman Minton J. Lister Hill Scott W. Lucasb Francis J. Myers Lyndon B. Johnsonb Earle C. Clement
State IL RI TX IL IN AL IL PA TX KY
Mike Mansfieldb Hubert H. Humphrey Russell B. Long Edward M. Kennedy Robert C. Byrdb Alan Cranston
MT MN LA MA WV CA
Wendell H. Ford
KY
Harry Reidb
NV
Richard Durbin
IL
Congress 63rd-65th 66th-70th 71st-72nd 73rd-75th 76th 77th-79th 80th 81st 82nd 83rd 84th 85th-86th 87th-88th 89th-90th 91st 92nd-94th 95th-96th 97th-99th 100th-101st 102nd-103rd 104th-105th 106th, 107th 108th 109th 110th-
Dates 1913-1919 1919-1929 1929-1933 1933-1939 1939-194 1 1941-1947 1947-1949 1949-1951 1951-1953 1953-1957 1957-1961 1961-1965 1965-1969 1969-197 1 1971-1977 1977-1991
1991-1999 1999-2005
2005-
Sources: See the “Source Notes and Bibliography” section at the end of this chapter for a description and full citation of all sources. The principal source for this table is Byrd’s Historical Statistics, p. 509, with additional detail drawn from Oleszek, Majority and Minority Whips of the Senate. Notes: Bolded entries indicate Congresses in which the Democratic whip was also the majority whip for at least half of the Congress. For example, while the Republicans began the 107th Congress with a controlling majority, party control switched to the Democrats in June of the first session; the 107thCongress is therefore treated as being under Democratic party control in these tables, where applicable. a Senator James Hamilton Lewis became the first Democratic Party whip in 1913. In the Congressional Record, Lewis himself referred to his “appointment,” but a press account the next year said he was elected. See Oleszek, Majority and Minority Whips of the Senate, p. 4. b Indicates individuals who later advanced to floor leader.
Party Leaders in the United States Congress, 1789-2007
395
Table 15. Senate Republican Whips, 191 5-2007 Whip James W. Wadsworth, Jr.a Charles Curtisb
State NY KS
Wesley L. Jones Simeon D. Fess Felix Hebert N/Ac Kenneth S. Wherryb
WA OH RI
Leverett Saltonstall
MA
Everett M. Dirksenb Thomas H. Kuchel Hugh D. Scottb Robert P. Griffin Ted Stevens
IL CA PA MI AK
Alan K. Simpson
WY
Trent Lottb Don Nickles
MS OK
Mitch McConnellb Trent Lott
KY MS
NE
Congress 64th 64th-65th 66th-68th 68th-70th 71st-72nd 73rd 74th-77th 78th-79th 80th 81st-82nd 83rd 84th 85th 86th-90th 91st 91st-94th 95th-96th 97th-98th 99th 100th-103rd 104th 104th-106th 107th 108th-109th 1 10th -
Dates 1915 1915-1924 1924-1929 1929-1933 1933-1935 1936-1943 1944-1949 1949-1957
1957-1959 1959-1969 1969 1969-1977 1977-1985 1985-1995 1995-June 12, 1996d June 12, 1996-2003e 2003-2007 2007-
Sources: See the “Source Notes and Bibliography” section at the end of this chapter for a description and full citation of all sources. The principal source for this table is Byrd’s Historical Statistics, p. 509, with additional details provided by Oleszek, Majority and Minority Whips of the Senate. Notes: Bolded entries indicate Congresses in which the Republican whip was also majority whip for at least half of the Congress. For example, while the Republicans began the 107th Congress with a controlling majority, party control switched to the Democrats in June of the first session; the 107thCongress is treated as being under Democratic party control in these tables, where applicable. a Wadsworth was the first Republican whip, but served only one week before Senator Curtis was named his successor. Some sources describe the selections as appointments, but clearly the party eventually elected individuals to the post. The conference rules for such selection were formally codified only in 1944, but the election practice seems to have been occurring prior to this. See Oleszek, Majority and Minority Whips of the Senate, p. 5. b Indicates individuals who later advanced to floor leader. c Between 1936 and 1943, the Republican whip post was filled by informal, irregular appointment by the Republican Leader. d Elected majority leader, June 12, 1996. e Elected to replace Senator Trent Lott as whip, June 12, 1996.
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APPENDIX: POLITICAL PARTY ABBREVIATIONS Adams Adams-Clay F Adams-Clay R AJ Am Anti-Admin C CRR D F FL FS I ID IR J JR L LR N N/A NR OP PO PR Pro-Admin R R(DR)a RA S SR U UU W
Adams Adams-Clay Federalist Adams-Clay Republican Anti-Jackson American (Know-Nothing) Anti-Administration Conservative Crawford Republican Democrat Federalist Farmer-Labor Free Soil Independent Independent Democrat Independent Republican Jacksonian Jacksonian Republican Liberty Liberal Republican Nullifier Party Unknown or No Party Affiliation National Republican Opposition Populist Progressive Pro-Administration Republican Jeffersonian, Jeffersonian Republican, or Democratic Republican Readjuster Silver Silver Republican Unionist Unconditional Unionist Whig
Source: This table is derived from Byrd, Historical Statistics, p. xvi. a
While the Biographical Directory of the American Congress, 1 774-1996 identifies the party affiliation of certain Representatives in early Congresses as Republicans, the designation “Democratic Republican” is more familiar to readers. This designation, R(DR), should not be taken to refer to the contemporary Republican Party, which did not emerge until the 1 850s.
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SOURCE NOTES AND BIBLIOGRAPHY This chapter relies heavily on primary congressional sources and authoritative documents such as the privately printed Biographical Directory of the American Congress, 1774 to 1996, and a similar online adaptation, the Biographical Directory of the United States Congress, 1774 to the Present. In addition, over the years, individual Members of Congress, legislative aides, and scholars have gained limited access to party conference journals. Reliable leadership lists have been compiled from these sources. Where these have been published, they have been used as a source in this chapter. This chapter also relies on secondary sources developed by scholars. The Congressional Research Service made no attempt to gain access to caucus or conference minutes in collecting data for this chapter. Inevitably, conflicting interpretations occur in these data, even among sources generally accepted as reliable. For example, there are disparities on the dates of elections and tenure of Senate Presidents pro tempore between Byrd’s history, the 1911 Senate document, and Gamm and Smith’s research. The chapter attempts to footnote these divergences where they occur. Unless otherwise noted, the following sources were used to compile the tables in this chapter: Berdahl, Clarence. “Some Notes on Party Membership in Congress.” American Political Science Review, vol. 43 (April 1949), pp. 309-332; (June 1949), pp. 492-508; and (August 1949), pp. 72 1-734. Biographical Directory of the American Congress, 1774-1996. Washington: CQ Staff Directories Inc., 1997. Biographical Directory of the United States Congress, 1774 to the Present. Available online at [http://bioguide.congress.gov/biosearch/biosearch.asp]. Byrd, Robert C. The Senate, 1789-1989. 4 vols., 100th Congress, 1st session. S. Doc. 100-20. Washington: GPO, 1988-1993. Cannon, Clarence. “Party History.” Remarks in the appendix, Congressional Record, vol. 89 (January 22, 1941), pp. A383-A384. Congressional Directory. Washington: GPO, various years. Congressional Globe. Washington, 1833-1873. Congressional Quarterly Weekly Report. Washington: Congressional Quarterly, Inc., various dates. Congressional Record. Washington: GPO, 1873-present. CRS Report RL30960. The President Pro Tempore of the U.S. Senate: History and Authority of the Office, by Christopher M. Davis. Deschler, Lewis. Deschler-Brown Precedents of the United States House of Representatives. 16 vols. Washington: GPO, 1977-2000. Galloway, George B. “Leadership in the House of Representatives.” The Western Political Quarterly, vol. 12, no. 2, (June 1959), pp. 417-441. Gamm, Gerald and Steven S. Smith. “Last Among Equals: The Senate’s Presiding Officer.” In Burdett A. Loomis, ed., Esteemed Colleagues: Civility and Deliberation in the U.S. Senate, pp. 105-134. Washington: Brookings Institution Press, 2000. Martis, Kenneth C. The Historical Atlas of Political Parties in the United States Congress, 1789-1989. New York: Macmillan, 1989.
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Oleszek, Walter J. Majority and Minority Whips in the Senate: History and Development of the Party Whip System in the U.S. Senate. 99th Congress, 1st session. S. Doc. 99-23. Washington: GPO, 1985. ——. “John Worth Kern: Portrait of Floor Leader.” In Richard A. Baker and Roger H. Davidson, eds., First Among Equals: Outstanding Senate Leaders of the Twentieth Century, pp. 7-37. Washington: CQ Press, 1991. Ripley, Randall B. Party Leaders in the House of Representatives. Washington: Brookings Institution Press, 1967. ——. “The Party Whip Organizations in the United States House of Representatives.” American Political Science Review, vol. 58 (September 1964), pp. 561-576. Rothman, David J. Politics and Power. Cambridge, MA: Harvard University Press, 1966. U.S. Congress. Hinds’ and Cannon’s Precedents of the House of Representatives of the United States. 11 vols. Washington: GPO, 1907-1908, 1935-1941. ——. House. Journal of the House of Representatives of the United States, 1789- present, various publishers. ——. Senate. Journal of the Senate of the United States, 1789-present, various publishers. ——. Majority and Minority Leaders of the Senate: History and Development of the Offices of the Floor Leaders. Prepared by Floyd M. Riddick. 99th Congress, 1st session. S. Doc. 99-3. Washington: GPO, 1985. ——. President of the Senate Pro Tempore. 62nd Congress, 2nd session. S.Doc. 62- 101. Washington: GPO, 1911. Senate Leaders of the Twentieth Century, pp. 38-62. Washington: CQ Press, 1991.
ENDNOTES 1
This chapter was originally written and updated by Paul S. Rundquist and Richard C. Sachs, former Specialists in American National Government at CRS, and Faye M. Bullock, former Technical Information Specialist at CRS. 2 See the “Source Notes and Bibliography” section at the end of this chapter for a description and citation of the multiple sources used in identifying leaders in the House of Representatives. 3 Woodrow Wilson, Congressional Government (Boston: Houghton-Mifflin, 1885), p. 223. 4 U.S. Congress, Senate, Biographical Directory of the United States Congress 1774-1989: the Continental Congress, September 5, 1774, to October 21, 1788, and The Congress of the United States, from the First through the One Hundredth Congresses, March 4, 1789, to January 3, 1989, inclusive, Bicentennial edition, S.Doc. 100-34, 100th Cong., 2nd sess. (Washington: GPO, 1989), p. 3. 5 Biographical Directory of the American Congress 1774-1996 (Washington: CQ Staff Directories, Inc., 1997), p. xi. This commercially published edition of the Biographical Directory is a continuation of earlier editions that were published under public auspices.. 6 Robert C. Byrd, The Senate, 1789-1 989, 4 vols., S. Doc. 100-20, 100th Cong., 1st sess. (Washington: GPO, 1988-1993), vol. 4, Historical Statistics, 1789-1992. Hereafter cited as Byrd’s Historical Statistics. See also, Gerald Gamm and Steven S. Smith, “Last
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Among Equals: The Senate’s Presiding Officer,” paper presented at the annual meeting of the American Political Science Association, Boston, MA, Sept. 3-6, 1998. 7 Electing the longest-serving majority party Senator has generally been the practice since 1890, with some exceptions. The only exception since 1945 has been the election of Senator Arthur Vandenberg in 1947. 8 U.S. Congress, Senate Journal, 50th Cong., 2nd sess., p. 165. See also “President Pro Tempore of the Senate,” Congressional Record, vol. 21 (Mar. 12, 1890), pp. 2144-2150. 9 1 Stat. 240. 10 24 Stat 1; 61 Stat. 380.
In: Congress of the U.S: Commitees, Rules and Procedures ISBN 978-1-60456-416-7 Editor: Sela G. Thomason © 2009 Nova Science Publishers, Inc.
Chapter 21
THE “DEEMING RESOLUTION”: A BUDGET ENFORCEMENT TOOL* Robert Keith SUMMARY “Deeming resolution” is a term that refers to legislation deemed to serve as an annual budget resolution for purposes of establishing enforceable budget levels for a budget cycle. A deeming resolution is used when the House and Senate are late in reaching final agreement on a budget resolution or fail to reach agreement altogether. The Congressional Budget Act of 1974 requires the annual adoption of a budget resolution establishing aggregate levels of revenues, spending, the debt limit, and the surplus or deficit, as well as allocations of spending. Enforcement of the budget resolution relies primarily upon points of order and reconciliation procedures. With regard to the enforcement of budget aggregates and committee spending allocations, the major points of order are found in Sections 311 and 302 of the act, respectively. The term “deeming resolution” is not officially defined, nor is there any specific statute or rule authorizing such legislation. Instead, the use of a deeming resolution simply represents the House and Senate employing regular legislative procedures to deal with the issue on an ad hoc basis. The form and content of a deeming resolution is not prescribed, so it may be shaped to meet the particular needs at hand. For example, the House and Senate have used simple resolutions as the legislative vehicle in the past, but a deeming resolution may be incorporated into a bill, such as an annual appropriations act, as a single provision. At a minimum, deeming resolutions provide new spending allocations to the Appropriations Committees, but they also may set new aggregate budget levels, provide revised spending allocations to other House and Senate committees, or provide for other related purposes.
*
This is an edited, excerpted and augmented edition of a CRS Report for Congress publication, Order Code RL31443, dated September 4, 2007.
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For FY1999, the first year that the two chambers failed to reach final agreement on a budget resolution, the Senate adopted two deeming resolutions (S.Res. 209 on April 2, 1998, and S.Res. 312 on October 21, 1998) and the House included deeming provisions in two resolutions dealing with other subjects as well (H.Res. 477, adopted on June 19, 1998, and H.Res. 5, adopted on January 6, 1999). In the absence of a budget resolution for FY2003, the House on May 22, 2002 adopted a deeming provision in H.Res. 428, a special rule for H.R. 4775, a supplemental appropriations act. The Senate did not adopt a deeming resolution during the session. In a related action, the Senate extended certain expiring budget enforcement provisions by adopting S.Res. 304 on October 16, 2002. For FY2005 and FY2007, the House and Senate again used deeming resolutions when they were unable to reach final agreement on the budget resolutions for those fiscal years. “Deeming resolution” is a term that refers to legislation which is deemed to serve as an annual budget resolution for purposes of establishing enforceable budget levels for a budget cycle. A deeming resolution is used when the House and Senate are late in reaching final agreement on a budget resolution or fail to reach agreement altogether. Either chamber may initiate its own budget enforcement procedures by adopting a “deeming resolution” in the form of a simple resolution. This chapter describes substantive enforcement procedures associated with the budget resolution, explains the concept of a “deeming resolution,” discusses House and Senate action on deeming resolutions, and provides information on a related topic, waiving a bar against the consideration of budgetary legislation for a fiscal year before a budget resolution for that fiscal year has been adopted.
SUBSTANTIVE ENFORCEMENT OF THE BUDGET RESOLUTION The Congressional Budget and Impoundment Control Act of 1974 (P.L. 93-344, as amended) requires the adoption by April 15th of each year of a concurrent resolution on the budget.1 The annual budget resolution sets forth aggregate levels of revenues, spending, the debt limit, and the surplus or deficit, as well as allocations of spending (both budget authority and outlays) by each of 20 major functional categories of the budget. The congressional budget process was first implemented in 1975 for FY1976, with full implementation of the process occurring the following year. Over the years, the time frame of the budget resolution has lengthened from one fiscal year to at least five fiscal years (and sometimes as many as 10 fiscal years). Enforcement of the budget resolution relies primarily upon points of order and reconciliation procedures. Point-of-order provisions contained in the 1974 Congressional Budget Act, which sometimes are supplemented by point-of-order provisions carried in annual budget resolutions, allow any Member in either chamber to prevent the consideration of legislation that would violate budget resolution policies.2 Of course, points of order are not self-enforcing and may be waived with a sufficient majority, thereby allowing legislation in violation of budget resolution policies to be considered. In the Senate, most of the points or order pertaining to budget enforcement require the affirmative vote of three-fifths of the membership (60 votes, if no seats are vacant) in order to be waived.
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With regard to the substantive enforcement of the budget resolution (i.e., enforcement of budgetary levels), the major points of order under the 1974 Congressional Budget Act are found in Sections 311 and 302, which deal with the enforcement of budget aggregates and committee spending allocations, respectively. House and Senate rules and practices differ somewhat with regard to these two points of order. Section 311(a) generally bars the consideration of any spending measure that would violate the aggregate budget authority and outlays levels for the first fiscal year covered by the budget resolution, and any revenue measure that would violate the aggregate revenue level for the first fiscal year or the sum of all fiscal years covered by the budget resolution. Section 3 02(a) generally requires that the aggregate amounts of spending recommended in the annual budget resolution be allocated by committee; the House and Senate Appropriations Committees receive an allocation for only one fiscal year, but the remaining House and Senate committees receive allocations for all of the years covered by the budget resolution.3 Section 302(b) requires the House and Senate Appropriations Committees to subdivide their allocations by subcommittee.4 Section 302(f) generally bars the consideration of any spending measure that would violate the committee spending allocations made under Section 3 02(a) or the Appropriations Committees’ suballocations of spending made under Section 302(b). In view of the different time frames for making committee spending allocations, the spending levels are enforceable for one year in the case of the Appropriations Committees but are enforceable for a multi-year period in the case of the other House and Senate committees. The purpose of the budget reconciliation process is to change substantive law so that revenue and mandatory spending levels are brought into line with budget resolution policies. Reconciliation generally has been used to reduce the deficit through spending reductions or revenue increases, or a combination of the two. In recent years, however, the reconciliation process also has encompassed revenue reduction generally and spending increases in selected program areas. Reconciliation is a two-step process.5 Under the first step, reconciliation instructions are included in the budget resolution, directing one or more committees in each House to develop legislation that changes spending or revenues (or both) by the amounts specified in the budget resolution. If more than one committee in each House is given instructions, each instructed committee submits reconciliation legislation to its respective Budget Committee, which incorporates all submissions, without any substantive revision, into a single, omnibus budget reconciliation measure. Under the second step, the omnibus budget reconciliation measure is considered in the House and Senate under expedited procedures (for example, debate time in the Senate on a reconciliation measure is limited to 20 hours and amendments must be germane). The process culminates with enactment of the measure, thus putting the policies of the budget resolution into effect.
THE “DEEMING RESOLUTION” When the House and Senate do not reach final agreement on a budget resolution in a timely manner (or fail to reach final agreement altogether) during a session, they are faced with a mixed situation regarding budget enforcement for upcoming fiscal years. The multi-
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year budget levels in the prior year’s budget resolution remain in effect and provide some basis for enforcing points of order with respect to revenue and mandatory spending legislation. However, changing economic and technical factors over the past year may have rendered the prior budget levels badly out of date, thereby undermining their value as a realistic basis for enforcement of present policies. Further, the House and Senate must adopt a new budget resolution each year in order for the enforcement of annually appropriated spending levels to be continuous. If a budget resolution is not adopted for a fiscal year, there is no allocation of spending made to the Appropriations Committees under Section 3 02(a) and no basis for them to make the required spending suballocations under Section 302(b). Consequently, when the House and Senate have been presented with such situations, they have resorted to the use of deeming resolutions to provide a basis for updated enforcement. The term “deeming resolution” is not officially defined, nor is there any specific statute or rule authorizing such legislation. Instead, the use of a deeming resolution simply represents the House and Senate employing regular legislative procedures to deal with the issue on an ad hoc basis. Inasmuch as the form and content of a deeming resolution is not prescribed, its form and content may be shaped to meet the particular needs at hand. For example, the House and Senate have used simple resolutions as the legislative vehicle in the past, but a deeming resolution may be incorporated into a bill, such as an annual appropriations act, as a single provision. At a minimum, deeming resolutions provide new spending allocations to the Appropriations Committees, but they also may set new aggregate budget levels, provide revised spending allocations to other House and Senate committees, or provide for other related purposes. A deeming resolution may even declare that a budget resolution (in its entirety), passed earlier in the session by one chamber, is deemed to have the force and effect as if adopted by both chambers.
HOUSE AND SENATE ACTION ON DEEMING RESOLUTIONS Both the House and Senate have acted on several deeming resolutions in the past. For purposes of this review, a distinction is drawn between instances in which the budget resolution was adopted in a tardy manner and instances in which no budget resolution was adopted at all.
Tardy Adoption of the Budget Resolution For 29 of the 33 fiscal years covering FY1976-FY2008, the House and Senate adopted at least one budget resolution, as shown in Table 1. The House and Senate were not able to reach agreement on budget resolutions for FY1999, FY2003, FY2005, and FY2007. In most of the 29 years for which a budget resolution was adopted, final agreement on the measure was reached in April, May, or early June, allowing the House and Senate to bring the regular appropriations bills and other budgetary legislation to the floor with little or no delay. In some instances, however, the final budget resolution was not in place until late June, or even until August or October. The general practice of the Senate in such years, particularly
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with regard to the regular appropriations bills, was to consider legislation within the framework of the Senate-passed budget resolution but not to adopt a deeming resolution. For example, spending levels provided in the appropriations bills generally were consistent with the spending allocations to the Senate Appropriations Committee and the spending suballocations thereunder that would have been made had the Senate-passed levels become the final ones. Consideration of the measures usually occurred by unanimous consent. Table 1. Dates of Adoption of Budget Resolutions: FY1 976-FY2008 Fiscal Year 1976 1977 1978 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992
Date Adopted 05-14-1975 05-13-1976 05-17-1977 05-17-1978 05-24-1979 06-12-1980 05-21-1981 06-23-1982 06-23-1983 10-01-1984 08-01-1985 06-27-1986 06-24-1987 06-06-1988 05-18-1989 10-09-1990 05-22-1991
Fiscal Year 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 —
Date Adopted 05-21-1992 04-01-1993 05-12-1994 06-29-1995 06-13-1996 06-05-1997 [none] 04-15-1999 04-13-2000 05-10-2001 [none] 04-11-2003 [none] 04-28-2005 [none] 05-17-2007 —
The tardy adoption of budget resolutions has been more of a problem for the House than the Senate, especially because the House usually begins the consideration of the regular appropriations bills at an earlier point in the session. In 1990, the House made a procedural change to allow the consideration of the regular appropriations acts to begin if the budget resolution was not finalized in a timely manner. The Budget Enforcement Act (BEA) of 1990 (Title XIII of P.L. 10 1-508, as amended) added a temporary provision to the 1974 Congressional Budget Act authorizing the chairman of the House Budget Committee to issue a provisional spending allocation to the House Appropriations Committee (consistent with the statutory limits on discretionary spending set by the BEA) if the budget resolution were not agreed to by the April 15 deadline.6 In 1997, the Budget Enforcement Act (BEA) of 1997 (Title X of P.L. 105-33) repealed Section 603 (and all of the other sections in Title VI of the 1974 Congressional Budget Act), but incorporated a modified version of the provision into Section 302 as a permanent part of procedure.7 The modification requires the allocation to the House Appropriations Committee to be consistent with the most recently agreed to budget
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resolution rather than the statutory limits on discretionary spending (the statutory limits expired at the end of FY2002). Table 2. House and Senate Action on Deeming Resolutions for Fiscal Years 1999, 2003, 2005, and 2007 Fiscal Year
Congress
House Deeming Resolution Measure Date Number Adopted
Senate Deeming Resolution Measure Date Number Adopted
Type of Measure
105th
H.Res. 477
S.Res. 209
04-021998
S.Res. 312
10-211998
House: The initial deeming resolution was Section 2 of H.Res. 477, a special rule providing for the consideration of the Military Constructions Appropriations Act for FY1999. A follow-up measure in the next session was part of the opening-day rules package (Section 2(a) of H.Res. 5). Senate: The two deeming resolutions were simple Senate resolutions directed solely to that purpose. House: The initial deeming resolution was Section 2 of H.Res. 428, a special rule providing for the consideration of a supplemental appropriations act for FY2002 (H.R. 4775). A follow-up measure in the next session was part of the opening-day rules package (Section 3(a)(4) of H.Res. 5). Senate: Actions to establish a deeming resolution were unsuccessful. House: The initial deeming resolution was Section 2 of H.Res. 649, a special rule providing for the consideration of the conference report on the FY2005 budget resolution
06-191998
1999
106th
H.Res. 5
01-061999 a
—
—
107th
H.Res. 428
05-222002
[none]
[none]
108th
H.Res. 5
01-072003 a
108th
H.Res. 649
05-192004
P.L. 108-287 (H.R. 4613)
07-222004 (08-052004)
2003
2005
The “Deeming Resolution”: A Budget Enforcement Tool
109th
H.Res. 5
01-042005 a
—
—
109th
H.Res. 818
05-182006
P.L. 109-234 (H.R. 4939)
06-152006
110th
H.Res. 6
01-052007 a
—
—
2007
407
(S.Con.Res. 95). A follow-up measure in the next session was part of the opening-day rules package (Section 3(a)(4) of H.Res. 5). Senate: The deeming resolution was Section 14007 (118 Stat. 1014) of the Defense Appropriations Act for FY2005 (H.R. 4613), which became Public Law 108-287. House: The initial deeming resolution was Section 2 of H.Res. 818, a special rule providing for the consideration of the Department of Interior Appropriations Act for FY2007(H.R. 5386)). A follow-up measure in the next session was part of the opening-day rules package (Section 511(a)(4) of H.Res. 6). Senate: The deeming resolution was Section 7035 (120 Stat. 489-490) of the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Hurricane Recovery for FY2006 (H.R. 4939), which became Public Law 109-234.
Source: Prepared by the Congressional Research Service. a Deeming resolution provisions were included in the resolution establishing the House rules at the opening of the Congress.
Notwithstanding the authority established in 1990 for making provisional spending allocations to the House Appropriations Committee based on prior budget resolutions, the House on several occasions has adopted deeming resolutions so that consideration of regular appropriations acts could proceed under more updated spending allocations. In 1990, 1995, and 1996, several special rules8 on regular appropriations bills included provisions that deemed a House-passed budget resolution to be in effect (until superseded by final HouseSenate agreement on a budget resolution), or that deemed a particular spending allocation to be in effect.9
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In 1990, when the final adoption of the budget resolution for FY1991 was delayed until October 9 (while extensive negotiations were conducted in a budget summit between the administration and Congress), the Senate adopted a deeming resolution to allow consideration of the regular appropriations acts for that year to proceed. S.Res. 308, which set forth FY1991 allocations of $680.5 12 billion in new budget authority and $690.606 billion in outlays to the Senate Appropriations Committee “for purposes of section 302(a) of the Congressional Budget Act of 1974,” was adopted by the Senate on July 12, 1990, by unanimous consent.10 Under the terms of S .Res. 308, the spending allocations were effective pending final agreement on the budget resolution or the agreement to different spending levels in the budget summit negotiations.
Failure to Adopt the Budget Resolution As stated previously, the House and Senate failed to adopt a budget resolution four times during the past 33years — in 1998 for FY1999, in 2002 for FY2003, in 2004 for FY2005, and in 2006 for FY2007. House and Senate action on deeming resolutions for these years is summarized in Table 2 and discussed in more detail below. Appendix A sets forth the text of the deeming resolutions. As Table 2 shows, the House and Senate have followed different patterns in terms of action on deeming resolutions. For each of the four fiscal years, the House used the same approach, adopting a deeming resolution in May or June, a month or two after the prescribed date for reaching final agreement with the Senate on a budget resolution. The legislative vehicle for the deeming resolution in each instance was a special rule reported by the House Rules Committee. Three of the special rules provided for the consideration of an annual appropriations act (two regular appropriations acts and one supplemental appropriations act) and the other provided for the consideration of a conference report on a budget resolution. Each of the special rules contained a separate section setting forth the deeming resolution provisions. At the beginning of the next session (which started a new Congress), additional deeming resolution provisions were adopted by the House as part of the opening-day rules package, usually numbered H.Res. 5 (in 2007, the rules package was H.Res. 6, which was approved by a separate vote on each title over the first two days). These actions were required because simple House resolutions (such as special rules reported by the House Rules Committee) do not carry over into a new Congress; thus, the initial deeming resolution had to be renewed by the adoption of a new resolution. The initial deeming resolution first used by the House, for FY1999, only provided spending allocations to the House Appropriations Committee. In the other three years, the initial deeming resolution had a broader application, putting into effect the entire budget resolution at its latest stage of action (House passage or House agreement to the conference report). In the two most recent instances, for FY2005 and FY2007, the deeming resolution blocked the automatic engrossment of a joint resolution increasing the public debt limit, as provided for under House Rule XXVII, forcing a debt-limit increase under regular legislative procedures.11
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Subsequent deeming resolution provisions, included in the opening-day rules package for the 106th Congress and the 108th-110th Congresses, continued budget resolution policies and procedures into the new Congress. The Senate has employed more varied practices than the House with respect to deeming resolutions. For FY1 999, it adopted two simple resolutions for this purpose in a single session (the first only provided spending allocations to the Senate Appropriations Committee, but the second had a much broader application). In the following instance, for FY2003, the Senate did not adopt a deeming resolution, despite several attempts to do so. In the last two instances, for FY2005 and FY2007, the Senate included deeming resolution provisions in statute, including a regular appropriations act (enacted in August) and a supplemental appropriations act (enacted in June). These latter two deeming resolutions focused principally on establishing new allocations of total discretionary spending to the Senate Appropriations Committee, and repealing or making inapplicable appropriations caps for the pertinent fiscal years, included in the prior year’s budget resolution, that were considered obsolete and too restrictive.
Actions for FY1 999 Overall budget policy for FY1999 had been outlined the previous year, in 1997, under the terms of a five-year agreement reached between Congress and President Clinton. Although each chamber passed a budget resolution in 1998, they could not reach agreement on a final version. In order to impose a binding restraint on annual appropriations acts and other budgetary legislation for that year, the House and Senate followed similar approaches. The Senate passed its version of the FY1999 budget resolution, S.Con.Res. 86, on April 2, 1998. Anticipating an impasse with the House, the Senate also that day agreed to S.Res. 209, a measure setting forth spending allocations to the Senate Appropriations Committee “until a concurrent resolution on the budget for fiscal year 1999 is agreed to by the Senate and the House of Representatives.”12 On October 21, 1998, several weeks after FY1999 had begun, the Senate agreed to S .Res. 312, informally referred to as the “deeming budget resolution.”13 The measure amended S.Res. 209 by incorporating budget aggregates for FY1999-FY2003 and authorizing the chairman of the Senate Budget Committee to file committee spending allocations consistent with them. The budget aggregates included in S.Res. 312 reflected the policies of the previous budget resolution updated for enacted legislation and revised economic and technical assumptions and provided the basis for enforcement under Section 302, Section 311, and other sections of the 1974 Congressional Budget Act. On June 19, 1998, the House adopted H.Res. 477, a special rule providing for the consideration of the Military Constructions Appropriations Act for FY199 (H.R. 4059). Section 2 of the resolution set forth spending allocations to the House Appropriations Committee for FY1 999. On January 6, 1999, at the beginning of the next session, the House adopted H.Res. 5, a measure setting forth its standing rules. Section 2(a) of the resolution directed the chairman of the House Budget Committee to publish budget aggregates and committee spending allocations for FY1999-FY2003 in the Congressional Record and stated that these levels should provide the basis for enforcement in lieu of a budget resolution.14 House Budget
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Committee Chairman John Kasich submitted the aggregates and allocations on February 25 and March 3, 1999.15
Actions for FY2003 As the prospect of a second instance without final agreement of the House and Senate on a budget resolution became more likely, both chambers turned to deeming resolutions as an enforcement alternative. Concern about budget discipline also was heightened by anticipation of the expiration toward the end of the session of statutory budget enforcement mechanisms under the Balanced Budget and Emergency Deficit Control Act of 1985 (i.e., the discretionary spending limits and pay-as-you-go requirement, which were enforced by sequestration) and the Senate’s pay-as-you-go point of order and three-fifths vote requirement in the Senate for waivers of certain points of order under the 1974 Congressional Budget Act.16 The House adopted a budget resolution for FY2003, H.Con.Res. 353, on March 20, 2002. About two months later, on May 22, and with the Senate not having considered a budget resolution on the floor, the House included a deeming provision in a special rule, H.Res. 428, on a supplemental appropriations act for FY2002 (H.R. 4775).17 Section 2 of the special rule provided that the budget resolution passed in March by the House, H.Con.Res. 353, “shall have force and effect in the House as though Congress has adopted such concurrent resolution.” Additionally, the chairman of the House Budget Committee was directed to have the committee spending allocations and other budgetary information printed in the Congressional Record. House Budget Committee Chairman Jim Nussle submitted the required information that same day.18 With regard to the extension of expiring budget enforcement mechanisms, the House Budget Committee held a hearing on the matter on April 25, 2002. Representative John Spratt, ranking minority member of the House Budget Committee, introduced H.R. 5502, the Restoring Budget Disciplines Act of 2002, on September 30, 2002. His bill would have extended the discretionary spending limits and pay-as-you-go requirement for five fiscal years, through FY2007. The House did not take any action on such legislation. In early October, Speaker Dennis Hastert indicated that the House might not act on such legislation until 2003.19 The Senate Budget Committee reported a budget resolution for FY2003, S.Con.Res. 100, on April 11, 2002, but it was not considered on the Senate floor during the session.20 During June 2002, several efforts were made in the Senate to amend legislation with provisions serving as a “deeming resolution” or otherwise extending certain budget enforcement procedures. On June 5, during consideration of an emergency supplemental appropriations act (H.R. 4775), the Senate rejected Gregg-Feingold amendment #3687, which would have extended certain budget enforcement procedures through FY2007, and Santorum amendment #3765, which would have deemed the budget resolution reported earlier by the Senate Budget Committee to be in effect.21 The Gregg-Feingold amendment fell on a point of order after a motion to waive the point of order was rejected on a 49-49 vote (rollcall vote #133). The Santorum amendment was tabled by a 96-0 vote (rollcall vote #134). The next day, on June 6, Daschle amendment #3764, an extension of certain budget enforcement procedures through FY2007, also failed.22 The amendment fell on a point of order that it was nongermane after cloture had been invoked. On June 20, during consideration of the National Defense Authorization Act (S. 2514), the Senate rejected Feingold amendment #3915, as perfected by the modified Reid-Conrad
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amendment #39 16.23 The Feingold amendment, as perfected, would have extended the discretionary spending limits through FY2004 and certain other budget enforcement procedures through FY2007. It fell on a point of order when a motion to waive the point of order was rejected on a 59-40 vote, one short of the required 60 affirmative votes (rollcall vote #159). On September 18, 2002, Senators Kent Conrad and Pete Domenici, the chairman and ranking minority member, respectively, of the Senate Budget Committee, sent a letter to Majority Leader Daschle urging action on a resolution extending the Senate’s pay-as-you-go point of order and the three-fifths vote requirement for certain waivers of the 1974 Congressional Budget Act.24 Majority Leader Daschle confirmed that the Senate would consider such legislation before adjournment.25 On October 16, the Senate considered S.Res. 304, a measure introduced earlier in the session encouraging the Senate Appropriations Committee to report the regular appropriations bills for FY2003 by July 31, 2002. The Senate agreed to the resolution by unanimous consent, after adopting by unanimous consent Conrad amendment #48 86, a substitute amendment extending the Senate’s pay-as-you-go point of order and the three-fifths vote requirement for certain waivers of the 1974 Congressional Budget Act through April 15, 2003.26 The resolution did not address extension of the discretionary spending limits and pay-as-you-go requirement in statute. The following year, in 2003, the House and Senate took additional actions pertaining to budget enforcement for FY2003. On the opening day of the 108th Congress, January 7, 2003, the House adopted H.Res. 5, a measure setting forth its standing rules. Separate orders pertaining to the budget process and other matters were set forth in Section 3 of the resolution.27 Section 3(a)(4) made the provisions of the FY2003 budget resolution adopted in 2002 (H.Con.Res. 353) effective for purposes of budget enforcement in 2003, pending adoption of a FY2003 budget resolution. In addition, Section 3(a)(4) of H.Res. 5 directed the chairman of the House Budget Committee, when elected, to have the committee spending allocations and other budgetary information printed in the Congressional Record. On the next day, January 8, the House adopted H.Res. 14. Section 2 of that resolution authorized Representative Jim Nussle of Iowa, the prospective chairman of the House Budget Committee, to submit the spending allocations and other information required by H.Res. 5, which he did later that day.28 On April 11, 2003, the House and Senate reached final agreement on a budget resolution for FY2004 (H.Con.Res. 95).29 In addition to setting forth the appropriate budgetary levels for FY2004-FY2013, the budget resolution also established budgetary levels for FY2003. The FY2004 budget resolution also included certain procedural requirements applicable to FY2003. In particular, Section 421 directed the chairmen of the House and Senate Budget Committees to make appropriate revisions in spending allocations to accommodate any supplemental appropriations for FY2003 enacted into law before May 1, 2003.30 As of the end of the 109th Congress, the House and Senate did not renew the discretionary spending limits and PAYGO requirement in statute that expired at the end of 2002. Actions for FY2005 The Senate Budget Committee initiated action on the budget resolution for FY2005 by reporting S.Con.Res. 95 on March 5, 2004 (in lieu of a written report to accompany the measure, a committee print was issued, S.Prt. 108-365, March 2004). Two weeks later, the House Budget Committee reported its version of the FY2005 budget resolution, H.Con.Res.
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393 (H.Rept. 108-441, March 19, 2004). The Senate passed S.Con.Res. 95 on March 12, and the House passed H.Con.Res. 393 on March 25. At the end of March, both chambers agreed to go to conference on S.Con.Res. 95. A conference report on the measure was filed in the House on May 19 (H.Rept. 108-498). The House agreed to the conference report on May 19, but the Senate did not consider it. The House considered the conference report on the FY2005 budget resolution under the terms of a special rule, H.Res. 649 (H.Rept. 108-500, May 19, 2004); the special rule was adopted on May 19 by a vote of 220-204. In anticipation of the possibility that final Senate approval of the budget resolution might be delayed, or might not occur at all, a “deeming resolution” provision was included in Section 2 of H.Res. 649. By adopting H.Res. 649, the House put into effect the budget policies embodied in the conference report on S.Con.Res. 95 as adopted by the House, as well as the procedures under Title III of the 1974 Congressional Budget Act used to enforce them. Accordingly, in the House regular appropriations acts for FY2005 and other budgetary measures are subject to aggregate spending ceilings and revenue floors, as well as allocations of spending to committees. Section 2(b) of H.Res. 649 barred the automatic engrossment of a measure raising the debt limit by the amount recommended in the budget resolution, an action otherwise required under House Rule XXVII whenever a budget resolution is finally agreed to by the House and Senate. Consequently, the automatic engrossment of such a measure could have occurred in 2004 only if the Senate adopted the conference report on S.Con.Res. 95. Congress and the President enacted legislation raising the debt limit (P.L. 108-4 15; November 19, 2004) under regular legislative procedures. (In most instances, the House and Senate use other means to enact debt- limit legislation.31) For the two months following House action on the deeming resolution provision, the Senate did not consider the conference report on the FY2005 budget resolution nor act on a deeming resolution. During this period, however, Senate action on the regular appropriations acts for FY2005 was subject to a ceiling of $814 billion on total appropriations for that year included in the prior year’s budget resolution, which remained in effect. The $814 billion ceiling for FY2005 presented the Senate with two problems. First, the conference agreement on the FY2005 budget resolution revised the recommended level of appropriations for that fiscal year upward by $7 billion to a new total of $821 billion. In order for the Senate to consider regular appropriations acts for FY2005 at a level comparable to House action, the $7 billion difference would have to be accommodated through a procedure such as designating an equivalent amount of appropriations to be emergency spending, a course of action that was considered less desirable. Second, the $814 billion ceiling applied to total appropriations only; it did not provide a basis for the enforcement of spending levels during the consideration of individual acts (unless all 13 of the individual acts were packaged together into a single, omnibus act). On July 22, 2004, the Senate resolved these problems by adopting the conference report on H.R. 4613, the Defense Appropriations Act for FY2005. President Bush signed the measure into law on August 5, 2004, as P.L. 108-287. Section 14007 (118 Stat. 1014) of the act, which took effect upon enactment, established the revised level of $821 billion as the allocation of new budget authority to the Senate Appropriations Committee for purposes of Section 302(a) of the 1974 act (and repealed the outdated limit of $814 billion in the prior year’s budget resolution).
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In 2005, the House took additional actions pertaining to budget enforcement for FY2005. On the opening day of the 109th Congress (January 4, 2005), the House adopted H.Res. 5, a measure setting forth its standing rules. Separate orders pertaining to the budget process and other matters were set forth in Section 3 of the resolution.32 Section 3(a)(4) made the conference report on the FY2005 budget resolution (S.Con.Res. 95), adopted by the House on May 19, 2004, but not considered by the Senate, effective for purposes of budget enforcement in 2005, pending adoption of a FY2005 budget resolution. The House’s deeming resolution also provided for the continuation into the new Congress of the Section 302(a) allocations for FY2005, as made and adjusted in the prior session.
Actions for FY2007 House and Senate actions on deeming resolutions for FY2007 were similar to the pattern that occurred two years earlier. The Senate Budget Committee initiated action on the budget resolution for FY2007 by reporting S.Con.Res. 83 on March 10, 2006 (in lieu of a written report to accompany the measure, a committee print was issued, S.Prt. 109-057, March 2006). Three weeks later, the House Budget Committee reported its version of the FY2007 budget resolution, H.Con.Res. 376 (H.Rept. 109-402, March 31, 2006). The Senate passed S.Con.Res. 83 on March 16, and the House passed H.Con.Res. 376 on May 18. Unlike the case for FY2005, however, the House and Senate did not take any conference action on the FY2007 budget resolution. Once again, the House included deeming resolution provisions in a special rule on an annual appropriations act. On May 18, 2006, the House agreed to H.Res. 818 (H.Rept. 109469, May 17, 2006), a special rule providing for the consideration of H.R. 5386, the Interior Appropriations Act for FY2007; the House agreed to the measure by a vote of 2 18-192. Section 2 of H.Res. 818 put into effect the budget policies embodied in the FY2007 budget resolution, H.Con.Res. 376, as adopted by the House, as well as the procedures under Title III of the 1974 Congressional Budget Act used to enforce them. In addition, Section 2 barred the automatic engrossment of a measure raising the debt limit by the amount recommended in the budget resolution, an action otherwise required under House Rule XXVII whenever a budget resolution is finally agreed to by the House and Senate. Congress and the President increased the debt limit in 2006 under regular legislative procedures (P.L. 109-182, March 20, 2006). Several weeks following House action on the deeming resolution provision, the Senate addressed the matter as well. As had been the case two years earlier, Senate action on the regular appropriations acts for FY2007 was subject to a cap established in the budget resolution for the prior year that was judged to be too tight. The FY2007 budget resolution passed by the Senate, as well as by the House, reflected a cap on appropriations for the fiscal year of $873 billion, but the cap for that fiscal year established in the FY2006 budget resolution was $7 billion lower, at $866 billion. This situation raised the same problems that the Senate faced in 2004. On June 15, 2006, the Senate resolved the matter by adopting the conference report on H.R. 4939, the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Hurricane Recovery for FY2006. President Bush signed the measure into law the same day, as P.L. 109-234. Section 7035 (120 Stat. 489-490) of the act, which took effect upon enactment, established the revised level of $873 billion as the allocation of new budget authority to the Senate Appropriations Committee for purposes of Section 302(a) of the 1974 act (and made the outdated limit of $866 billion in the prior year’s budget resolution
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inapplicable). Further, the $873 billion cap was made subject to provisions in the Senatepassed budget resolution pertaining to limitations and adjustments applicable to emergency spending. The following year, in 2007, the House took additional actions pertaining to budget enforcement for FY2007. During the first two days of the 1 10th Congress, January 4 and 5, the House adopted H.Res. 6, a measure setting forth its standing rules. Separate votes were taken on each title of the measure (rather than a single vote on adoption of the measure in its entirety); the first two titles were agreed to on January 4 and the remaining three titles were agreed to on January 5. Title V, which dealt with various special orders and miscellaneous matters, was agreed to by a vote of 23 2-200. Special orders pertaining to the budget process and other matters were set forth in Section 511 of the resolution. Section 511 (a)(4)(A) made the provisions of the FY2007 budget resolution adopted in the preceding year (H.Con.Res. 376) effective for purposes of budget enforcement in 2007, pending adoption of a FY2008 budget resolution. In addition, Section 511 (a)(4)(B) of H.Res. 6 directed the chairman of the House Budget Committee, when elected, to have the committee spending allocations and other budgetary information printed in the Congressional Record. On February 6, 2007, Representative John Spratt, the chairman of the House Budget Committee, submitted the information required by H.Res. 6.33 The House and Senate reached final agreement on the FY2008 budget resolution (S.Con.Res. 21) on May 17, 2007.34 In addition to recommending spending levels for FY2008-FY2012, the measure revised the spending levels for FY2007. In the House, the revised spending levels for FY2007 effectively superseded the levels established in the deeming resolution automatically (because the deeming resolution was in effect only until the FY2008 budget resolution was adopted). In the Senate, however, affirmative action had to be taken to terminate the deeming resolution, thereby avoiding any conflict with the newly revised spending levels. Accordingly, Section 208 of the FY2008 budget resolution stated that “Section 7035 of Public law 109-234 shall no longer apply in the Senate.”
WAIVERS OF SECTION 303 OF THE 1974 CONGRESSIONAL BUDGET ACT The tardy adoption of a budget resolution, or the failure to adopt it at all, leads to another enforcement problem, but one that involves timing issues rather than substantive enforcement. Under Section 303(a) of the 1974 Congressional Budget Act, the House and Senate generally may not consider spending or revenue legislation for a fiscal year until the budget resolution for that fiscal year has been adopted. The section poses less of a problem for the House than it does for the Senate. First, Section 303(b) provides an exception in the House for general appropriations bills considered after May 15, but this exception does not apply in the Senate. Second, the House may include waivers of the Section 303(a) point of order in special rules governing the consideration of individual measures. Section 303(c) also bars the consideration of appropriations measures in the Senate until the spending allocation to the Senate Appropriations Committee required by Section 302(a)
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has been made. Unlike many other points of order under the 1974 act, waivers of Section 3 03(a) only require a simple majority vote in the Senate. Over the years, the Senate has waived Section 303(a) dozens of times for various types of budgetary legislation. In many years, however, the Senate has chosen not to waive Section 303(a) with respect to the consideration of regular appropriations bills. Instead, the Senate Appropriations Committee in these instances generally delayed action on its bills until after the budget resolution had been adopted. Data collected from the 94th-100th Congresses show that, with respect to regular appropriations bills, Section 303(a) waivers were granted in only 13 cases,35 as follows: • • •
FY1984, for three bills considered in June 1983 (the FY1984 budget resolution was adopted on June 23); FY1985, for eight bills considered June-September 1984 (the FY1985 budget resolution was adopted on October 1); and FY1986, for two bills considered in July-August 1985 (the FY1986 budget resolution was adopted on August 1).
In most of these 13 cases, the waiver was obtained under a successful motion directed specifically to waiving Section 303(a). In several other instances, the waiver was obtained under a unanimous consent request. The use of the waiver motions or unanimous consent requests in these cases attested to the consensus regarding the need to consider the regular appropriations bills. After all, such motions are subject to extended debate, and any Senator can raise an objection to a unanimous consent request. An extended debate on a motion, and an objection to a unanimous consent request, occurred only once (both occurred in August 1984 in connection with the Agriculture appropriations bill for FY1985). The extended debate on the waiver motion began on August 1 and was brought to a close on August 8, when the Senate voted 68-34 to invoke cloture. The subsequent vote to approve the waiver motion (6334) was the only rollcall vote taken on such motions; the others were approved by voice vote. In more recent years, the budget resolution has been adopted in a fairly timely manner. During the period covering the 102nd Congress through the first session of the 1 10th Congress, of the 13 budget resolutions that were adopted, 10 were adopted in April or May; the remaining three were adopted in June. Accordingly, in these 13 years the Senate Appropriations Committee was able to avoid the need for waivers of Section 303(a). During the four years in which the House and Senate failed to agree on a budget resolution, regular appropriations bills generally were taken up by unanimous consent, without any effort to raise points of order under Section 303(a).
APPENDIX A. TEXT OF DEEMING RESOLUTIONS FY1999 H.Res. 477, Section 2 (105th Congress) Sec. 2. Pending the adoption by the Congress of a concurrent resolution on the budget for fiscal year 1999, the following allocations contemplated by section 3 02(a) of the
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Congressional Budget Act of 1974 shall be considered as made to the Committee on Appropriations: (1) (2) (3) (4)
New discretionary budget authority: $531,961,000,000. Discretionary outlays: $562,277,000,000. New mandatory budget authority: $298,105,000,000. Mandatory outlays: $290,858,000,000.
H.Res. 5, Section 2(a)(1) (106th Congress) Sec. 2. Separate Orders. (a) Budget Enforcement — (1) Pending the adoption by the Congress of a concurrent resolution on the budget for fiscal year 1999 — (A) the chairman of the Committee on the Budget, when elected, shall publish in the Congressional Record budget totals contemplated by section 301 of the Congressional Budget Act of 1974 and allocations contemplated by section 302(a) of that Act for each of the fiscal years 1999 through 2003; (B) those totals and levels shall be effective in the House as though established under a concurrent resolution on the budget and sections 301 and 302 of that Act; and (C) the publication of those totals and levels shall be considered as the completion of Congressional action on a concurrent resolution on the budget for fiscal year 1999. S.Res. 209 (105th Congress) Resolved, That for the purposes of section 302(a) of the Congressional Budget Act of 1974, the estimated allocation of the appropriate levels of budget totals for the Senate Committee on Appropriations shall be — For non-defense — (1) $289,547,000,000 in total budget outlays, and (2) $255,450,000,000 in total new budget authority; for defense — (1) $266,635,000,000 in total budget outlays, and (2) $271,570,000,000 in total new budget authority; for violent crime reduction — (1) $4,953,000,000 in total budget outlays, and (2) $5,800,000,000 in total new budget authority; for mandatory — (1) $291,731,000,000 in total budget outlays, and (2) $299,159,000,000 in total new budget authority; until a concurrent resolution on the budget for fiscal year 1999 is agreed to by the Senate and the House of Representatives pursuant to section 301 of the Congressional Budget Act of 1974.
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P S.Res. 313 (105th Congress) Resolved, That Senate Resolution 209, agreed to April 2, 1999 (105th Congress), is amended by striking all after the resolving clause and inserting the following: Section 1. Senate Budget Levels. (a) In General. — For the purpose of enforcing the Congressional Budget Act of 1974 and section 202 of House Concurrent Resolution 67 (104th Congress), the following levels, amounts, and allocations shall apply in the Senate in the same manner as a concurrent resolution on the budget for fiscal year 1999 and including the appropriate budgetary levels for fiscal years 2000, 2001, 2002, and 2003: (1) Federal Revenues. — The recommended levels of Federal revenues are as follows: Fiscal year 1999: $1,358,919,000,000. Fiscal year 2000: $1,388,039,000,000. Fiscal year 2001: $1,424,774,000,000. Fiscal year 2002: $1,480,891,000,000. Fiscal year 2003: $1,534,362,000,000. (2) New Budget Authority. — The appropriate levels of new budget authority are as follows: Fiscal year 1999: $1,417,136,000,000. Fiscal year 2000: $1,453,654,000,000. Fiscal year 2001: $1,489,637,000,000. Fiscal year 2002: $1,517,259,000,000. Fiscal year 2003: $1,577,949,000,000. (3) Budget Outlays. — The appropriate levels of total budget outlays are as follows: Fiscal year 1999: $1,402,185,000,000. Fiscal year 2000: $1,438,029,000,000. Fiscal year 2001: $1,473,660,000,000. Fiscal year 2002: $1,484,272,000,000. Fiscal year 2003: $1,548,914,000,000. (4) Social Security Revenues. — The amounts of revenues of the Federal Old-Age and Survivors Insurance Trust Fund and the Federal Disability Insurance Trust Fund are as follows: Fiscal year 1999: $441,749,000,000. Fiscal year 2000: $460,115,000,000. Fiscal year 2001: $477,722,000,000. Fiscal year 2002: $497,290,000,000. Fiscal year 2003: $518,752,000,000. (5) Social Security Outlays. — The amounts of outlays of the Federal Old-Age and Survivors Insurance Trust Fund and the Federal Disability Insurance Trust Fund are as follows: Fiscal year 1999: $321,261,000,000. Fiscal year 2000: $330,916,000,000. Fiscal year 2001: $344,041,000,000. Fiscal year 2002: $355,614,000,000. Fiscal year 2003: $368,890,000,000. (b) Revisions. —
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Sec. 2. Committee Allocations. Upon the adoption of this resolution, the Chairman of the Committee on the Budget shall file allocations consistent with this resolution pursuant to section 302(a) of the Congressional Budget Act of 1974.
FY2003 H.Res. 428, Section 2 (107th Congress) Sec. 2. (a) Pending the adoption of a concurrent resolution on the budget for fiscal year 2003, the provisions of House Concurrent Resolution 353, as adopted by the House, shall have force and effect in the House as though Congress has adopted such concurrent resolution. (b) The chairman of the Committee on the Budget shall submit for printing in the Congressional Record — (1) the allocations contemplated by section 302(a) of the Congressional Budget Act of 1974, which shall be considered to be such allocations under a concurrent resolution on the budget; (2) ‘Accounts Identified for Advance Appropriations,’ which shall be considered to be the programs, projects, activities, or accounts referred to section 30 1(b) of House Concurrent Resolution 353; and (3) an estimated unified surplus, which shall be considered to be the estimated unified surplus set forth in the report of the Committee on the Budget accompanying House Concurrent Resolution 353 referred to in section 211 of such concurrent resolution. (c) The allocation referred to in section 231(d) of House Concurrent Resolution 353 shall be considered to be the corresponding allocation among those submitted by the chairman of the Committee on the Budget under subsection (b)(1).
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H.Res. 5, Section 3(a)(4) (108th Congress) Sec. 3. Separate Orders. (a) Budget Matters. — ... (4)(A) During the One Hundred Eighth Congress, pending the adoption of a concurrent resolution on the budget for fiscal year 2003, the provisions of House Concurrent Resolution 353 of the One Hundred Seventh Congress, as adopted by the House, shall have force and effect in the House as though the One Hundred Eighth Congress has adopted such a concurrent resolution. (B) The chairman of the Committee on the Budget (when elected) shall submit for printing in the Congressional Record — (i) the allocations contemplated by section 302(a) of the Congressional Budget Act of 1974 to accompany the concurrent resolution described in subparagraph (A), which shall be considered to be such allocations under a concurrent resolution on the budget; (ii) “Accounts Identified for Advance Appropriations”, which shall be considered to be the programs, projects, activities, or accounts referred to section 30 1(b) of House Concurrent Resolution 353 of the One Hundred Seventh Congress, as adopted by the House; and (iii) an estimated unified surplus, which shall be considered to be the estimated unified surplus set forth in the report of the Committee on the Budget accompanying House Concurrent Resolution 353 of the One Hundred Seventh Congress referred to in section 211 of such concurrent resolution. (C) The allocation referred to in section 231(d) of House Concurrent Resolution 353 of the One Hundred Seventh Congress, as adopted by the House, shall be considered to be the corresponding allocation among those submitted by the chairman of the Committee on the Budget under subparagraph (B)(I).
FY2005 H.Res. 649, Section 2 (108th Congress) Sec. 2. (a) Upon adoption in the House of the conference report to accompany Senate Concurrent Resolution 95, and until a concurrent resolution on the budget for fiscal year 2005 has been adopted by the Congress — (1) the provisions of the conference report and its joint explanatory statement shall have force and effect in the House; and (2) for purposes of title III of the Congressional Budget Act of 1974, the conference report shall be considered adopted by the Congress. (b) Nothing in this section may be construed to engage rule XXVII. H.Res. 5, Section 3(a)(4) (109th Congress) Sec. 3. Separate Orders. (a) Budget Matters. —
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(4)(A) During the One Hundred Ninth Congress, until a concurrent resolution on the budget for fiscal year 2005 is adopted by the Congress, the provisions of the conference report to accompany Senate Concurrent Resolution 95 of the One Hundred Eighth Congress shall have force and effect in the House as though the One Hundred Ninth Congress has adopted such conference report. (B) The allocations of spending authority included in the conference report, as adjusted during the 108th Congress, shall be considered the allocations contemplated by section 302(a) of the Congressional Budget Act of 1974.
P.L. 108-287, Section 14007 (118 Stat. 1014) Sec. 14007. 2005 Discretionary Limits. (a) In General. — For the purposes of section 302(a) of the Congressional Budget Act of 1974, the allocation of the appropriate levels of budget totals for the Senate Committee on Appropriations for fiscal year 2005 shall be — (1) for total discretionary spending — (A) $821,419,000,000 in total new budget authority; and (B) $905,328,000,000 in total budget outlays; and (2) for mandatory — (A) $460,008,000,000 in total new budget authority; and (B) $445,525,000,000 in total budget outlays; until a concurrent resolution on the budget for fiscal year 2005 is agreed to by the Senate and the House of Representatives pursuant to section 301 of the Congressional Budget Act of 1974. (b) Adjustments and Limits. — The following limits and adjustments provided in S .Con.Res. 95 (108th Congress) shall apply to subsection (a): (1) Sections 311 and 403 for fiscal year 2005. (2) Sections 312 and 402 which shall apply to both fiscal years 2004 and 2005. (c) Definition. — In this section, the term `total discretionary spending’ includes the discretionary category, the mass transit category, and the highway category. (d) Repeal. — Section 504 of H.Con.Res. 95 (108th Congress) is repealed. (e) Effective Date. — This section shall take effect on the date of enactment of this Act.
FY2007 H.Res. 818, Section 2 (109th Congress) Sec. 2. (a) Upon adoption of House Concurrent Resolution 376, and until a concurrent resolution on the budget for fiscal year 2007 has been adopted by the Congress, the provisions of House Concurrent Resolution 376 and its accompanying report shall have force and effect in the House for all purposes of the Congressional Budget Act of 1974 as though adopted by the Congress. (b) Nothing in this section may be construed to engage rule XXVII.
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H.Res. 6, Section 511(a) (4) (110th Congress) Sec. 511. Separate Orders. (a) Budget Matters. — ... (4)(A) During the One Hundred Tenth Congress, pending the adoption of a concurrent resolution on the budget for fiscal year 2008, the provisions of House Concurrent Resolution 376 of the One Hundred Ninth Congress shall have force and effect in the House as though the One Hundred Tenth Congress has adopted such a concurrent resolution. (B) The chairman of the Committee on the Budget (when elected) shall submit for printing in the Congressional Record — (I) the allocations contemplated by section 302(a) of the Congressional Budget Act of 1974 to accompany the concurrent resolution described in subparagraph (A), which shall be considered to be such allocations under a concurrent resolution on the budget; and (ii) “Accounts Identified for Advance Appropriations”, which shall be considered to be the program, projects, activities, or accounts referred to in section 401(b) of House Concurrent Resolution 376 of the One Hundred Ninth Congress, as adopted by the House.
P.L. 109-234, Section 7035 (120 Stat. 489-490) Sec. 7035. 2007 Discretionary Limits. (a) In General. — For the purposes of section 302(a) of the Congressional Budget Act of 1974, the allocations of the appropriate levels of budget totals for the Committee on Appropriations of the Senate for fiscal year 2007 shall be — (1) $872,778,000,000 in total new budget authority for general purposes discretionary; and (2) $577,241,000,000 in total new budget authority for mandatory; until a concurrent resolution on the budget for fiscal year 2007 is agreed to by the Senate and the House of Representatives pursuant to section 301 of the Congressional Budget Act of 1974. (b) Adjustments and Limits. — The limits and adjustments provided in section 402 of S.Con.Res. 83 (109th Congress), as passed the Senate, for fiscal year 2007 shall apply to subsection (a). (c) Application. — The section 302(a) allocations in subsection (a) shall be deemed to be allocations set forth in the joint explanatory statement of managers accompanying the concurrent resolution on the budget for fiscal year 2007, as though adopted by Congress, for all purposes under titles III and IV of the Congressional Budget Act of 1974. Section 302(a)(4) of the Congressional Budget Act of 1974 shall not apply to this section. (d) Exceptions. — The following provisions of H.Con.Res. 95 (109th Congress) shall not apply in the Senate — Section 404; and until January 3, 2007, section 403(b)(2). (e) Effective Date. — This section shall take effect on the date of enactment of this Act.
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ENDNOTES 1
In its original form, the 1974 Congressional Budget Act required the annual adoption of two budget resolutions — one in the spring and one in the fall. The two required budget resolutions were adopted each year for the first seven years of the congressional budget process (FY1976-FY1982). Beginning with FY1983, however, the House and Senate adopted the practice of acting on only one budget resolution a year. For more information, see CRS Report RL30297, Congressional Budget Resolutions: Selected Statistics and Information Guide, by Bill Heniff Jr. 2 For a listing of the points of order, see CRS Report 97-865, Points of Order in the Congressional Budget Process, by James V. Saturno. 3 If the budget aggregates for the fiscal year in progress (the “current year”) are revised in the budget resolution, then the current-year spending allocations to committees are revised as well. 4 The spending allocations to committees usually are included in the joint explanatory statement on the budget resolution; the spending suballocations made by the Appropriations Committees are set forth in House or Senate reports, as appropriate. 5 Reconciliation procedures are discussed in detail in CRS Report RL33030, The Budget Reconciliation Process: House and Senate Procedures, by Robert Keith and Bill Heniff Jr. 6 See the new Section 603 of the 1974 Congressional Budget Act as added by Section 13111 of the BEA of 1990 (104 Stat. 1388-605). 7 See Section 302(a)(5) of the 1974 Congressional Budget Act as added by Section 10106 of the BEA of 1997 (111 Stat. 680-681). 8 A special rule is a simple House resolution (i.e., numbered “H.Res.”) reported by the House Rules Committee that sets the parliamentary terms for the consideration of one or more specified measures. 9 See H.Res. 413 (Section 3), adopted on June 19, 1990; H.Res. 167 (Section 2), adopted on June 16, 1995; and H.Res. 451 (Section 2) and 453, adopted on June 11 and 13, 1996, respectively. 10 See the remarks of Senator Robert C. Byrd in the Congressional Record of July 12, 1990, at pp. S9642-9643, in which explains the purpose of S.Res. 308 and the status of congressional action on the regular appropriations acts for FY1 991. 11 See CRS Report RS21519, Legislative Procedures for Adjusting the Public Debt Limit, by Bill Heniff Jr. 12 The text of S.Res. 209 is set forth on page S3 160 of the Congressional Record of April 2, 1998. 13 The text of S.Res. 312, and the debate thereon, may be found in the Congressional Record of October 21, 1998, on pages S12915 and S12916. 14 The text of Section 2(a) of H.Res. 5 is printed in the Congressional Record of January 6, 1999, on page H34. 15 See the remarks of Rep. Kasich in the Congressional Record of February 25 and March 3, 1999, on pages H809-H8 10 and H949-H95 1, respectively. 16 For more information on these enforcement procedures, see (1) CRS Report RL3 1137, Sequestration Procedures Under the 1985 Balanced Budget Act, by Robert Keith; Report
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RS2 1378, Termination of the “Pay-As-You-Go” (PAYGO) Requirement for FY2003 and Later Years, by Robert Keith; (3), CRS Report RL32835, PAYGO Rules for Budget Enforcement in the House and Senate, by Robert Keith and Bill Heniff Jr.; and (4) CRS Report RS2 1316, Budget Enforcement Procedures: Senate Pay-As-You-Go (PAYGO) Rule, by Bill Heniff Jr. 17 See the consideration of H.Res. 428 in the Congressional Record of May 22, 2002, at pages H289 1-H2902. 18 See the remarks of Rep. Jim Nussle in the Congressional Record of May 22, 2002, at pages H2929-H2930. 19 See “Hastert Supports Renewal of Pay-Go But Expects No Action Until 2003,” by Bud Newman in BNA’s Daily Report for Executives, October 4, 2002. 20 See S.Rept. 107-14 1; Committee reported S.Con.Res. 100 favorably by a vote of 12-10. 21 For the text and discussion of the Gregg-Feingold amendment, see pages S5005-50 15 in the Congressional Record of June 5, 2002; for the text and discussion of the Santorum amendment, see pages S5018-S5021. 22 For the text and discussion of the Daschle amendment, see pages S5015-S5022 and S5 1 14-S5 120 in the Congressional Record of June 5 and 6, 2002, respectively. 23 For the text of the Feingold amendment, as perfected by the modified Reid-Conrad amendment, and its discussion, see pages S5808-S582 1 in the Congressional Record of June 20, 2002. 24 The letter, as well as the text of the resolution, is available online at [http://www.senate. gov/~budget/democratic/budgetresFY03/resletter09 1902.pdf ] 25 See “Daschle Promises Senate Will Debate Resolution Extending Budget Disciplines,” by Bud Newman in BNA’s Daily Report for Executives, October 2, 2002. 26 See the consideration of S.Res. 304 in the Congressional Record of October 16, 2002, at pages S10527-S10531 and page S10553. Also, see “In Late Deal, Senate Approves by Voice Vote Renewing Expiring Budget Enforcement Rules,” by Bud Newman in BNA’s Daily Report for Executives, October 17, 2002. 27 For more information on this topic, see CRS Report RL3 1728, House Rules Changes Affecting the Congressional Budget Process in the 108th Congress (H.Res. 5), by Bill Heniff Jr. 28 See the remarks of Rep. Jim Nussle in the Congressional Record of January 8, 2003, at pages H74-H75. Rep. Nussle was elected chairman of the House Budget Committee on January 8 by virtue of the House’s adoption of H.Res. 24. 29 See the conference report on H.Con.Res. 95, H.Rept. 108-7 1 (April 10, 2003). 30 P.L. 108-11, the Emergency Wartime Supplemental Appropriations Act, 2003, was enacted into law on April 16, 2003. 31 See CRS Report RS21519, Legislative Procedures for Adjusting the Public Debt Limit: A Brief Overview, by Robert Keith and Bill Heniff Jr. 32 For more information on this topic, see CRS Report RS22021, House Rules Changes Affecting the Congressional Budget Process in the 109th Congress (H.Res. 5), by Bill Heniff Jr. 33 See the remarks of Rep. John Spratt in the Congressional Record of February 6, 2007, at p. H1234. 34 See Concurrent Resolution on the Budget for Fiscal Year 2008, conference report to accompany S.Con.Res. 21, H.Rept. 110-153 (May 16, 2007).
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See the following archived reports, which are available from the author: (1) CRS Report 89-37, Senate Consideration of Regular Appropriations Bills Under Waivers of Section 303(a) of the 1974 Budget Act, by Robert Keith; and (2) CRS Report 89-76, Waivers of the 1974 Budget Act Considered in the Senate During the 100th Congress, by Robert Keith.
In: Congress of the U.S: Commitees, Rules and Procedures ISBN 978-1-60456-416-7 Editor: Sela G. Thomason © 2009 Nova Science Publishers, Inc.
Chapter 22
LAME DUCK SESSIONS OF CONGRESS, 1935-2004 (74TH-108TH CONGRESSES)* Richard S. Beth SUMMARY A “lame duck” session of Congress occurs whenever one Congress meets after its successor is elected, but before the successor’s term begins. The expression is now used not only for a special session called after a sine die adjournment, but also for any portion of a regular session that falls after an election. In current practice, any meeting of Congress after election day, but before the following January 3, is a lame duck session. Prior to 1933, when the 20th Amendment changed the dates of the congressional term, the last regular session of Congress was always a lame duck session. A lame duck session can occur in several ways. (1) In practice, Congress has usually provided for its existing session to resume after a recess spanning the election. (In 1954, only the Senate returned in this way, while the House adjourned sine die.) (2) In 1940, 1942, and 2002, Congress continued meeting, sometimes in pro forma sessions every third day, until well after the election. (3) Congress can reconvene after an election pursuant to contingent authority granted to the leadership in a recess or adjournment resolution (in 1998, the House alone followed this course). Two other possibilities have not been realized: (4) Congress could set a statutory date for a new session to convene after the election, then adjourn its existing session sine die. (5) While Congress is in recess or sine die adjournment, the President could call it into extraordinary session at a date after the election. Congress held a total of 15 lame duck sessions from 1940 through 2004. Recesses preceding lame duck sessions have usually begun by mid-October, and typically lasted between one and two months. Congress typically reconvened in mid- November and adjourned before Christmas, so that the lame duck session lasted about a month. Some recesses, however, have begun as early as August 7 or as late as November 3, and ended as *
This is an edited, excerpted and augmented edition of a CRS Report for Congress publication, Order Code RL33677, dated October 2, 2006.
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early as November 8 or as late as December 31. Lame duck sessions have ended as early as November 22 and as late as January 3, and have extended over as few as one, and as many as 145, calendar days. Some lame duck sessions have been held largely for pro forma reasons (e.g., 1948), on a standby basis (e.g., 1940, 1942), or to deal with a single specific matter (e.g., 1954, 1998, 1994). Some sessions, as well, have deferred major matters to the succeeding Congress (e.g., 1944, 1982, 2004), especially when a stronger majority for the same party was in prospect. Most, however, could be regarded as at least moderately productive. When the President has presented an extensive agenda to a lame duck session controlled by his own party, it has often approved many of his recommendations (e.g., 1950, 2002, 2004), but when he has done so under conditions of divided government, he has had less success, and has often vetoed measures (e.g., 1970, 1974, 1982). Additionally, a major task of most lame duck sessions in recent years has been to complete action on appropriations and the budget. In 1974, 1980, 1982, 2000, and 2004, this effort was at least somewhat successful, but in 1970 and 2002 a final resolution was largely left to the following Congress.
WHAT MAKES A LAME DUCK SESSION A “lame duck” session of Congress is one that takes place after the election for the next Congress has been held, but before the current Congress has reached the end of its constitutional term. Under contemporary conditions, any meeting of Congress that occurs between a congressional election in November and the following January 3 is a lame duck session. The significant characteristic of a lame duck session is that its participants are the sitting Members of the existing Congress, not those who will be entitled to sit in the new Congress.1
Meaning of “Lame Duck” The expression “lame duck” was originally applied in 18th century Britain to bankrupt businessmen, who were considered as “lame” in the sense that the impairment of their powers rendered them vulnerable, like a game bird injured by shot. By the 1830s, the usage had been extended to officeholders whose service already had a known termination date. In current American usage, for instance, a President is considered a “lame duck” not only if he has been defeated for re-election, or after his successor has been elected, but also whenever he cannot be, or is known not to be, a candidate for reelection. Members of Congress in similar circumstances are also considered “lame ducks.” The expression may accordingly be applied to Members who are known not to be seeking reelection as well as to those who have been defeated. In particular, however, after an election of Congress, all the Members who did not gain reelection can be described as lame ducks until the term of the new Congress starts. When the previously sitting Congress, which includes these Members, meets in a post-election session, this session is called a lame duck session as well.2
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Lame Duck Sessions in the Modern Congress The possibility of a lame duck session of Congress in the modern sense began in 1935, when the 20th Amendment to the Constitution took effect. Under this amendment, ratified in 1933, Congress meets in a regular session on January 3 of each year, unless in the previous session it passes a law changing the date. Also, the terms of Members begin and end on January 3 of odd-numbered years. Under these arrangements, any meeting of Congress after election day (in November of even- numbered years), but before the following January 3, is a lame duck session. From 1935 through 2004, there were 15 lame duck sessions. The most recent one occurred at the end of the 108th Congress in 2004. This chapter examines only the specific lame duck sessions that have occurred since 1935, not those that occurred routinely before this date, as explained in the following section.
Lame Duck Sessions before the 20th Amendment The Constitution originally provided that the regular sessions of Congress begin annually on the first Monday in December. In the process of initiating the government under the Constitution, it was established that the term of Congress would begin and end of March 4 of odd-numbered years.3 As today, however, congressional elections were generally held in November of even-numbered years. The result was that after being elected in (an even-numbered) November, a new Congress did not begin its term until the following (odd-numbered) March, and was not required to convene until the following December, 13 months after it was first elected.4 This first December session of Congress typically continued until sometime in the summer of the following (even-numbered) year. The Congress would then adjourn until the time for the next regular session prescribed by the Constitution, the following (even-numbered) December. When Congress reconvened at that time, however, the next Congress would already have been elected, in the intervening (even-numbered) November. The term of that newly elected Congress, on the other hand, would not begin until the following March. The Congress that convened in an even-numbered December, accordingly, could not be the newly elected one, but could only be the one already sitting. Under these arrangements, as a result, the last session of every Congress was always a lame duck session.5 One purpose of the 20th Amendment was to change these arrangements that routinely required every Congress to hold its last session as a lame duck session.6
HOW LAME DUCK SESSIONS MAY OCCUR Under the 20th Amendment, lame duck sessions can still occur, but only as a result of specific actions undertaken either by the Congress already sitting or by the President. The specific actions through which a sitting Congress might reconvene after an election, but during the last portion of its own term of office, are of several kinds. The following sections describe these possible means of reconvening. Although some have been used rarely and
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others not at all, each method helps to illuminate the constitutional arrangements that make lame duck sessions possible and the conditions in which they may operate. The courses of action through which Congress might reconvene for a lame duck session include doing so: (1) pursuant to a previously enacted law prescribing an additional session of Congress; (2) following a recess within a session, but spanning the election; (3) under authority granted to the leadership at the time of a contingent adjournment or recess of the session; (4) by continuing to meet, perhaps in pro forma sessions, throughout the period spanning the election; and (5) in response to a presidential proclamation calling an extraordinary session.
Sine Die Adjournment and its Effects Although the “lame duck sessions” that have occurred before and after 1935 are both “lame duck” in the same sense, they are not “sessions” in the same sense. Formally, a session of Congress ends when Congress adjourns sine die.7 The Latin phrase, literally translated as “without day,” is used to mean that Congress has adjourned without setting a day for its next meeting. An adjournment sine die, therefore, means that Congress is not scheduled to meet again until the day set by the Constitution (or by law) for its next session to convene. When Congress adjourns sine die in an election year, it is not scheduled to meet again until after the term of the new Congress begins. That meeting will therefore begin the first session of the new Before 1935, Congress would normally adjourn its previous session sine die before the November elections. When it returned for its prescribed meeting in December, accordingly, a new session began. Under these conditions, the “lame duck session” of each Congress was actually a session in its own right, numerically distinct from the previous session (or sessions) of the same Congress. Accordingly, each of the lame duck sessions that occurred routinely before 1935 was convened as a separate session of the Congress already sitting. Congress today could achieve an equivalent result by adjourning its session sine die before an election, after first providing by law for an additional session of the old Congress to convene on a date after the election. This additional, post-election session (probably the third session of the old Congress) would be a lame duck session in same sense as those that occurred routinely before 1935. It would be a new, separately numbered session of the old Congress. Subsequent to the implementation of the 20th Amendment in 1935, however, Congress has never made use of this first means of bringing about a lame duck session.
Recess of the Session Instead, when a Congress has decided to continue meeting after an election, its usual practice has been not to adjourn sine die, but simply to recess its existing session for a period spanning the election, and then to reconvene at a date still within the constitutional term of the sitting Congress. Since 1935, this second means of bringing about a lame duck session has been used on 11 occasions, as detailed in Table 1 and the section on “Means of Calling Sessions.” Congress authorizes a session recess in the same way it authorizes a sine die adjournment, by adopting a concurrent resolution. This form of authorization is necessary
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because the Constitution provides that “Neither House, during the Session of Congress shall, without the Consent of the other, adjourn for more than three days... .”8 A concurrent resolution requires adoption by both houses, and accordingly can be used for each house to consent to the adjournment of the other. This constitutional requirement applies both to sine die adjournments and to session recesses, which are technically adjournments within a session. Unlike a sine die adjournment, however, a recess does not terminate an existing session of Congress. When Congress reconvenes at the conclusion of a recess, accordingly, no new session begins, but the previously existing session resumes. Under these conditions, the post-election meeting of Congress is not a separate, new session of the old Congress, but a continuation of its existing session (probably its second session). Nevertheless, the phrase “lame duck session” has persisted as a way of referring to any post-election meeting of the old Congress, even though it now normally does not designate a separate session of Congress, but rather refers simply to the post-election portion of an ongoing existing session.
Contingent Authority to Reconvene The two sequences of events just discussed (a recess of an existing session and adjourning sine die after providing for a new session) are not the only ones that can lead to a lame duck session. A third such course of events becomes possible if, when Congress recesses before an election, it grants contingent authority to its leadership to reconvene it, or either house, “if the public interest shall require.” In the period since ratification of the 20th Amendment, the practice has grown up that Congress often includes this contingent authority, in some form, in concurrent resolutions providing for a session recess or a sine die adjournment. If Congress included this contingent authority in a resolution providing for a recess spanning an election, the leadership might use the authority to reconvene Congress before the scheduled expiration of the recess. It might do so either before or after the election itself, but in either case, any portion of the reconvened session occurring after the election would be considered a lame duck session. During the time since the 20th Amendment took effect, however, this course of action has not been taken. If Congress adjourns sine die with contingent reconvening authority, on the other hand, the sine die character of the adjournment becomes final only if the leadership does not exercise this authority by the time the next session of Congress is slated to convene, pursuant to either the Constitution or law. If the authority is exercised, the existing session of the old Congress resumes, and the previous adjournment turns out not to have been sine die. Any post-election portion of this continuation of the previous session of Congress would be considered a lame duck session. The Speaker of the House used authority of this kind in 1998 to reconvene the chamber in a post-election continuation of a session that had previously been terminated by a conditional sine die adjournment.9
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Intermittent and Pro Forma Sessions A fourth way in which a lame duck session can occur arises if Congress chooses not to authorize a recess spanning an election. In this case, the lame duck session occurs if Congress simply continues to meet throughout the pre-election period and afterwards. Any portion of the continuing session of Congress that takes place after the election would be considered a lame duck session. As Table 1 and the accompanying discussion shows, Congress has taken this course of action on three occasions since 1935. On some occasions, under these conditions, each house has chosen to meet only on every third day during the period spanning the election (and sometimes throughout the post-election period as well, until sine die adjournment). In addition, it is not necessary that either house transact any business during these intermittent meetings. If, during a given day’s session, no business is transacted, it becomes a pro forma session, meaning one held only “for the sake of formality.” In this case, the formality being satisfied is the constitutional requirement that neither house recess for more than three days if the other has not consented to a recess.10
Sessions Called by the President A final means by which a lame duck session could occur arises from the constitutional authorization for the President to convene Congress, “on extraordinary occasions,” by calling a special session.11 If Congress convenes, pursuant to this call, after a sine die adjournment and before the next session is scheduled to begin, a new session of the existing Congress begins. This course of events has not occurred since 1935.12 On the other hand, if the President calls Congress back during a recess of an existing session, the existing session resumes. This course of events occurred in 1948, when President Harry Truman called Congress back for an extraordinary session in the middle of a recess for the national political conventions. The extraordinary session called by President Truman did not constitute a lame duck session, because it both convened and recessed before the election. By the same means, however, a President might call an extraordinary session to convene at a date after the election and before the term of the sitting Congress ends. He could do so whether Congress had only recessed its previous session or had adjourned it sine die. In either case, the postelection meeting of Congress would be considered a lame duck session.13 No lame duck session since 1935 has occurred through this means.
CHARACTERISTICS OF LAME DUCK SESSIONS SINCE 1935 Since the 20th Amendment became effective in 1935, there have been 15 lame duck sessions. For each of them, Table 1 provides information on • •
when the pre-election portion of the session ended; whether Congress stayed in session, recessed to a specified date, or adjourned sine die;
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when the post-election, or “lame duck,” portion of the session began; and when Congress adjourned the post-election session sine die. Table 1. Lame Duck Sessions of Congress, 1935-2004 (74th-108th Congresses)
Year of Congressa Election 1940
76th
Pre-Election Session Ended Date Form No recess
Post-Election Session Adjourned Sine Die House: Jan. 2, 1941 Senate: Jan. 3, 1941 Dec. 16 Nov. 14 Dec. 19 Dec. 31 Dec. 31 Nov. 27 Jan. 2, 1951 Senate: Nov. 8 Senate: Dec. 2
1942 1944 1948 1950 1954
77th 78th 80th 81st 83rd
No recess Sept. 21 Aug. 7 Sept. 23 Aug. 20
1970 1974 1980
91st 93rd 96th
1982
97th
Oct. 14 Oct. 17 House: Oct. 2 Senate: Oct. 1 Oct. 1
1994
103rd
Oct. 8
1998 2000
105th 106th
House: Dec. 17 b House: Nov. 13 Senate: Nov. 14
2002
107th
Oct. 21 Adjourned House: Nov. 3 Recessed Senate: Nov. 2 No recess
2004
108th
House: Oct. 8 Recessed Senate: Oct. 11
Nov. 13
Began
Recessed Recessed Recessed House: Adjourned Senate: Recessed Recessed Nov. 16 Recessed Nov. 18 Recessed Nov. 12 Recessed
Nov. 29
Recessed
Nov. 28
Jan. 2, 1971 Dec. 20 Dec. 16 House: Dec. 21 Senate: Dec. 23 House: Nov. 29 Senate: Nov. 30 House: Dec. 19 Dec. 15 House: Nov. 22 Senate: Nov. 20 House: Dec. 7 Senate: Dec. 8
Sources: Congressional Record, Daily Digest, and Journals of the House and Senate. a Second session, except 3rd session of the 76th Congress. b Reconvened pursuant to contingent authority granted to leadership in the adjournment resolution.
In instances when the two houses took differing actions, or took the same action on different dates, the table provides separate data for each house. These data permit some generalizations about the occurrence, form, timing, and length of the 15 lame duck sessions that have occurred since 1935.
Occurrence of Sessions Lame duck sessions were frequent in the years surrounding World War II, occurring in six of eight Congresses (76th through 83rd) between 1940 and 1954. None occurred from 1956 through and 1968. There were two in each of the next three decades. Another gap occurred
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from 1984 through 1992. Since then, lame duck sessions have occurred in five of the six Congresses (103rd through 108th), including the last four Congresses in a row. On one occasion, in 1954, only the Senate returned, and only to consider the censure of Senator Joseph McCarthy; and once, in 1998, only the House returned, principally to consider the impeachment of President William J. Clinton.
Means of Calling Sessions Twelve lame duck sessions have been preceded by a recess spanning the election. The remaining three Congresses continued to meet intermittently, often in pro forma session, during the election period. The latter schedule was used for the first two lame duck sessions after adoption of the 20th Amendment, which occurred shortly before or during World War II, in 1940 and 1942. It was again used only in 2002. Congress suspended its session during the election period preceding 12 lame duck sessions since 1935. On seven of these 12 occasions (1944, 1948, 1974, 1994, 1998, 2000, and 2004), the resolution providing for the break afforded contingent authority to the leadership to call Congress back before the scheduled resumption of the session. For the remaining five lame duck sessions (1950, 1954, 1970, 1980, and 1982), Congress did not afford the leadership this authority. Ten of these 12 election breaks represented recesses of the ongoing session of Congress. The remaining two cases were those, mentioned above, in which only one house returned after the election. In 1954, the House adjourned sine die and the Senate recessed (with no contingent reconvening authority), permitting the Senate to deal with the censure of Senator McCarthy in a lame duck session. In 1998, both houses adjourned sine die with contingent reconvening authority. The House leadership then used the reconvening authority to call the chamber back to address the question of impeachment. This last instance is the only occasion on which a lame duck session has convened pursuant to contingent authority of the leadership.
Timing of Sessions Since 1970, when Congress has recessed before a lame duck session, the beginning of the recess has most often occurred in early to mid-October. The latest that Congress has ever continued to meet before recessing for an election was in 2000 (106th Congress), when the Senate left on November 2 and the House on November 3. Prior to 1970, by contrast, each of the four election recesses preceding a lame duck session began in September or August. The earliest start of an election recess was August 7, 1948 (80th Congress). In this case, Congress had recessed its regular session on June 20, scheduling itself to reconvene on December 31, but President Truman had called Congress back into extraordinary session on July 26. Most commonly, lame duck sessions have convened in the latter half of November. The latest date of reconvening after an election was that of the 80th Congress on December 31, 1948. Except for years when Congress took no election recess, the earliest reconvening of both houses occurred in 1980, when the 97th Congress returned on November 12, but in 1954 (83rd Congress), the Senate alone returned on November 8. Congress also reconvened on
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relatively early dates in 2000 (106th Congress), when the House returned on November 13 and the Senate on November 14, and in 1944 (78th Congress), when both houses returned on November 14. Lame duck sessions have most often adjourned sine die in about mid-December, or at least before Christmas. The 76th Congress, however, did not close until January 3, 1941, when the 77th Congress was to convene. This termination represents the latest sine die adjournment among the 15 lame duck sessions. Other late terminations occurred in the 81st and 91st Congresses, both of which adjourned sine die on January 2 (1951 and 1971, respectively). The earliest end of a lame duck session occurred in 2002 (107th Congress), when the House adjourned sine die on November 22, the Senate having done so two days earlier.
Length of Sessions Lame duck sessions since 1935 have typically lasted about a month. The average (that is, mean) length from commencement to closing has been 28 calendar days; the median, 33 (that is, half the lame duck sessions were longer than 33 days and half shorter). Eight of the 15 lame duck sessions have lasted between 25 and 37 calendar days; only three have exceeded this range. The longest was the first (76th Congress), which lasted 58 days, meeting (usually every third day) between November 7, 1940 (the day after election day), and January 3, 1941. The 77th Congress (1942) followed a similar pattern, but adjourned sine die after 48 calendar days. The lame duck session of the 91st Congress reached 45 calendar days by remaining in session until January 2, 1971. The shortest lame duck session occurred in the 80th Congress, when both houses returned solely to close the session on December 31, 1948. Other unusually short the lame duck sessions included those of 1994 (103rd Congress) and 1998 (105th Congress, House only), each of which lasted only three calendar days. The length of the recess preceding a lame duck session has also varied. On the 12 occasions since 1935 when Congress recessed for the election, the recess typically lasted between one month and two. Nine of the 12 election recesses fell between 30 and 64 days in length; the mean length of all 12 has been 54 days and the median 51. The only election recess shorter than 30 days occurred in 2000, when the 106th Congress recessed for only nine days around the election. The longest election recess occurred in 1948 (80th Congress), when 145 days elapsed between the end of the special session called by President Truman and the largely pro forma reconvening and adjournment on December 31. The only other election recess longer than 64 days occurred in 1954 (83rd Congress), and lasted 79 days.
LAME DUCK SESSIONS SINCE 1935 Following are summaries of the 15 lame duck sessions held since 1935. Primary sources, including the Congressional Record and Congressional Directory, and secondary sources, including the Congressional Quarterly Weekly Report, CQ Almanac, and, for the earlier years, The New York Times, constituted the basis for these descriptions. Internet-based sources were also utilized.
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76th Congress, 3rd Session (1940-1941) After the first session of the 76th Congress adjourned in August 1939, President Franklin D. Roosevelt called Congress into extraordinary session in September to deal with the threat of war in Europe, and this session lasted into November. Thus, the annual session that began on January 3, 1940, was the third session of the 76th Congress. It, too, was dominated by the international situation. The President requested the largest peacetime defense program to that point in American history, and, by the end of the summer, Congress had enacted $13 billion in defense authorizations and appropriations, a military draft, income tax revisions, an excess profits tax, and related measures. In June, July, and again in September 1940, the President offered the view that Congress need not remain in session any longer. Some congressional leaders, however, held that Congress should “stand by” in session, in case of emergency. Congress met regularly through mid-October, then limited itself to two or three meetings per week until January 3, 1941; there was no extended recess for the November 1940 elections. The session thus became the longest in history to that point. During the lame duck period following the election, little was undertaken; the Congressional Record from November 4, 1940 through January 3, 1941 covers fewer than 500 pages, and quorums were often hard to raise. The administration declined to send major new proposals (such as a defense production board, aid to Britain, new taxes, and an increase in the debt limit) to Capitol Hill until the 77th Congress would convene in January. Work also was impeded because both the House and Senate had to meet in substitute quarters while their chambers in the Capitol underwent repairs. Among the more notable actions of this lame duck period were the decision to sustain the veto of a measure to limit regulatory agency powers, and the publication of a committee report on sabotage of the defense effort.
77th Congress, 2nd Session (1942) In the wartime year of 1942, Congress again remained in session continuously through the election, adjourning sine die on December 16. Congress generally followed a regular schedule of daily meetings throughout the period, except near the election, when it met every third day. Activities in the lame duck portion of the 77th Congress were affected by the knowledge that the 78th Congress, to begin in January, would contain a much narrowed Democratic majority. Congress declined to take final action to approve the Third War Powers Bill14 or a bill to expand the Reconstruction Finance Corporation, including an agricultural parity rider attached to the latter. Other questions left to the next Congress included comprehensive national service legislation, placing a ceiling on net personal income through the tax code, curbing the powers of regulatory agencies, and planning for censorship of communications with U.S. territories. A bill to abolish poll taxes passed the House, but fell to a filibuster in the Senate. Congress did pass legislation to adjust overtime pay for government workers, and to provide for the military draft of 18- and 19-year-old men (although Congress deferred deciding whether to require a full year’s training before sending them into combat).
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By mid-December, quorums became difficult to obtain and leaders of both parties agreed that nothing further could be brought up before the start of the 78th Congress in January 1943.
78th Congress, 2nd Session (1944) Two years later, with World War II still in progress, Congress recessed for the national party conventions and recessed again for the elections. The latter recess began on September 21, 1944. Congress returned on November 14 and remained in session until December 19. Accordingly, 1944 marks the first instance after ratification of the 20th Amendment of a separate and distinct meeting of Congress during its lame duck period. Among the issues facing the post-election session were questions of peacetime universal military training; extension of the War Powers Act15 and the reciprocal trade system; a scheduled increase in Social Security taxes; and a rivers and harbors appropriations bill. Congress also debated congressional reform issues, including restructuring the committee system and increasing congressional pay. Postwar reconstruction and a renewal of domestic programs were also mentioned as possible subjects for action. Ultimately, Congress deferred several issues until the start of the 79th Congress, including universal military training, the Bretton Woods monetary agreements, the Reciprocal Trade Act, and changes to the Social Security system. Several other measures could not be completed, including a rivers and harbors bill, a Senate-passed bill making major changes in congressional procedures; and a pay increase for postal workers. A bill delaying the Social Security tax increase was enacted, however, as were a renewal of the War Powers Act and a bill increasing the congressional clerk- hire allowance. In addition, the Senate confirmed the nomination of Edward R. Stettinius as Secretary of State.
80th Congress, 2nd Session (1948) Congress recessed in August 1948, before the national party conventions, with the intention of returning only on December 31 to bring the 80th Congress to a formal conclusion, unless earlier called back by congressional leaders. During the convention recess, however, President Harry S Truman called Congress back in extraordinary session to deal with a series of legislative priorities he considered urgent. This occurrence represents the only time since the adoption of the 20th Amendment that the President has convened Congress in an extraordinary session. Congress met pursuant to this call from July 27 to August 7, but then recessed again under the same terms as before. The leadership did not exercise its option to reconvene Congress during this new recess, and Congress met again only on December 31. This session, the shortest lame duck session under the 20th Amendment, met for just under an hour and a half, then adjourned sine die. During the brief session, both chambers approved a measure extending for 60 days the life of the Commission on Organization of the Executive Branch of Government (Hoover Commission). The Senate also extended for 30 days the life of the Special Small Business Committee, and both houses swore in new Members elected or appointed to full unexpired terms.
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81st Congress, 2nd Session (1950-1951) With the Korean War at a critical juncture in the fall of 1950, congressional leaders announced in late September that after the election Congress would reconvene in late November. Until November, Congress would be available to meet should the President call an emergency session. Congress recessed on September 23 and convened for the lame duck session on November 27. As the lame duck session met, Chinese troops crossed into Korea, and General Douglas A. MacArthur warned Congress that the United Nations faced “an entirely new” war in the region. The Korean War and the possible use of atomic weapons dominated congressional attention through the session. Nevertheless, President Truman presented congressional leaders with a list of 13 proposals, including five he described as of “greatest urgency.” The five included several measures favored by congressional leaders: aid to Yugoslavia and supplemental appropriations for defense and atomic energy. The President also asked Congress to act on an excess profits tax, an extension of federal rent controls, and statehood for Hawaii and Alaska. Congress stayed in session through the New Year. It approved the rent control extension and a $38 million famine relief bill for Yugoslavia. In the week before the Christmas holidays, it completed work on an $18 billion defense supplemental appropriations bill, the excess profits tax, and a civil defense program. Efforts to obtain a vote on statehood for Alaska were abandoned after a week of intermittent Senate debate on a motion to take up the measure. The 81st Congress adjourned sine die on January 2, 1951, and the 82nd Congress convened the next day.
83rd Congress, 2nd Session (1954) Prior to the 1954 congressional election, the House adjourned sine die on August 20, but the Senate recessed on that date and then reconvened on November 8. The Senate met for the sole purpose of considering the recommendation of a select committee to censure Senator Joseph R. McCarthy for improprieties committed in the course of his investigations into allegations of communist influence in the federal government. Made over a period of more than five years, Senator McCarthy’ s allegations had eventually led to investigations of McCarthy himself, and the Senate had assigned the issue to a select committee chaired by Senator Arthur V. Watkins (R-UT). This lame duck session was the first time since passage of the 20th Amendment that only one chamber returned to session after an election. The Senate select committee submitted its censure resolution on November 9, 1954. The first count of the two-count resolution was approved on December 1, and final action was completed the following day. Press reports speculated that the Senate might consider matters other than the McCarthy censure resolution, including a number of pending treaties and nominations, but the Senate took action only on the McCarthy censure resolution and adjourned finally on December 2.
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91st Congress, 2nd Session (1970-1971) Congressional leaders called a post-election session in 1970 for the first time in almost 20 years to complete action on a list of pending legislation, including electoral reform, the Family Assistance Plan (the Nixon Administration’s principal welfare reform proposal), occupational safety and health, equal rights for women, manpower training, and funds for the supersonic transport plane (SST). Seven regular appropriations bills also remained to be enacted. Congress convened the lame duck session on November 16, 1970. Congress stayed in session until January 2, 1971, less than 24 hours before the constitutional deadline of noon on January 3, when the 92nd Congress convened. It kept largely to the agenda the congressional leadership had set before the recess in October, but failed to approve many administration proposals, including the Family Assistance Plan. That bill, with other controversial measures, had been attached to a Social Security bill in the Senate. The SST received only interim funding. President Richard M. Nixon strongly criticized what he termed “major failures” of the lame duck session. Congress did complete work on two of the seven regular appropriations bills and a measure dealing with foreign aid and foreign military sales. It also passed the Clean Air Act Amendments of 1970, which established deadlines for the reduction of certain pollutants from new automobiles, and a major housing bill, which included a new program of federal crime insurance and created the Community Development Corporation. President Nixon vetoed four measures during the lame duck session, including a $9.5 billion federal manpower training and public service employment bill. Congress did not override any of these vetoes.
93rd Congress, 2nd Session (1974) Delayed in the consideration of major legislation by the extraordinary events of 1973 and 1974 — the Watergate investigations, the resignation of Vice President Spiro T. Agnew, the nomination and confirmation of Gerald R. Ford to be Vice President, and the resignation of President Nixon and succession of President Ford — Congress reconvened on November 18, 1974, in an effort to clear a long list of important items. Although congressional leaders had indicated that only the most critical bills would be considered, including approval of the nomination of Nelson A. Rockefeller to be Vice President, President Ford greeted the returning Congress with a 10-page list of legislation he wanted passed before the session expired. In the end, Congress did consider a wide range of issues before it adjourned on December 20, 1974, but its actions were not always to President Ford’s liking. The Rockefeller nomination was approved by mid-December, but Congress overrode presidential vetoes of both a vocational rehabilitation bill and a measure amending the Freedom of Information Act. Congress also approved, and the President signed, a bill that nullified a prior agreement giving former President Nixon control over the tapes and papers of his administration. In other actions, Congress
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• •
approved a long-delayed trade reform bill giving the President broad authority to negotiate trade agreements, act on trade barriers, and provide import relief to workers, industries, and communities; established a federal policy for research on development of nonnuclear sources of energy; and cleared legislation making continuing appropriations for federal agencies whose regular appropriations had not been enacted.
96th Congress, 2nd Session (1980) In 1980, some observers contended that postponing final congressional action on a lengthy agenda of major issues until a post-election session would accomplish two goals: first, it would delay potentially difficult pre-election votes on budget matters, and second, it would allow incumbents extra time to campaign. The large Republican gains on election day were thought to complicate the prospects for a productive lame duck program, however, especially with such important issues as budget reconciliation, several major appropriations bills, and landmark environmental legislation still left for consideration. In fact, during the lame duck session, from November 12 to December 16, 1980, Congress completed action on many of the issues that had been left unfinished in the regular session, including the following: • •
• • • •
a budget resolution and a budget reconciliation measure; five regular appropriations bills, although one was subsequently vetoed; a second continuing resolution was approved to continue funding for other parts of the government; an Alaska lands bill and a “superfund” bill to help clean up chemical contamination; a measure extending general revenue sharing for three years; a measure that made disposal of low-level nuclear waste a state responsibility; and changes to military pay and benefits, and authority for the President to call 100,000 military reservists to active duty without declaring a national emergency.
97th Congress, 2nd Session (1982) In 1982, with urging from President Ronald W. Reagan, congressional leaders called for the second session of the 97th Congress to reconvene after the congressional election. The Senate met from November 30 to December 23, 1982, and the House from November 30 to December 21. Congress recessed for the election on October 1. In calling for Congress to return, President Reagan expressed concern that only three of 13 appropriations bills had been cleared for his signature at the time Congress recessed. Dominated by economic concerns — particularly those related to budget and deficit issues — the second session of the 97th Congress was notable for the political tension between the Republican President and Senate, on the one hand, and the Democratic House, on the other.
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Congressional leaders indicated they would finish nine of 10 outstanding money bills. But by the end of December, Congress had completed only four, and needed to enact a large continuing resolution to fund remaining government operations for FY1983. Concerned about recession and rising unemployment, House Democrats added a $5.4 billion jobs program to the continuing resolution, but agreed to remove it when the President threatened a veto. The lame duck session was acrimonious in both chambers, but especially in the Senate, where frequent filibusters caused some all night sessions. The Senate voted on eight cloture motions in December. The most contentious filibuster came late in the month over a measure to increase the gasoline tax. The measure was approved just two days before Christmas. In addition to completing work on some appropriations bills and the continuing resolution, the House approved a controversial 15% pay raise for itself. An immigration reform bill, favored by the White House and the congressional leadership, stalled when opponents filed hundreds of amendments designed to slow chamber action. The leadership was eventually forced to pull the bill from the floor. In other decisions, Congress refused to fund production and procurement of the first five MX intercontinental missiles, the first time in recent history that either house of Congress had denied a President’s request to fund production of a strategic weapon. Congress also passed a long-sought nuclear waste disposal bill.
103rd Congress, 2nd Session (1994) In 1994, Congress recessed on October 8 and then reconvened on November 28 for the sole purpose of passing a bill implementing a new General Agreement on Tariffs and Trade (GATT). Although the bill received strong support in both chambers during the regular session, opponents in the Senate had kept the measure from reaching a vote on the floor. In the short lame duck session, the House passed the bill on November 29 and the Senate on December 1. Both chambers then adjourned sine die.
105th Congress, 2nd Session (1998) In 1998, both the House and Senate adjourned sine die on October 21, 1998. The adjournment resolution gave contingent authority not only to the bicameral leadership to reconvene Congress, but also to the Speaker to reconvene the House. This last authority was granted in anticipation of action to impeach President William J. Clinton. The House convened on December 17, 1998, to consider a resolution of impeachment (H.Res. 611). On December 19, the House adopted Articles I and III of the resolution by votes of 228-206 and 221-212. It then, by a vote of 228-190, adopted a resolution appointing and authorizing House managers for the Senate impeachment trial. The House then adjourned sine die. On December 17, 1998, the House agreed, as well, to a resolution expressing support for the men and women engaged in a military action in the Persian Gulf.
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106th Congress, 2nd Session (2000) Because final action on several appropriations bills had not been completed, Congress remained in session into the first days of November, the closest to an election that it had worked since 1942. On November 3, Congress adopted S .Con.Res. 160, authorizing recesses of the House until November 13 and the Senate until November 14. When the two houses returned, with the presidential election undecided, they approved a short-term continuing resolution and the District of Columbia Appropriations Act, and then agreed to a further recess until December 5. After reconvening on December 5, Congress agreed to a series of five short-term continuing resolutions while final decisions on the remaining appropriations were being negotiated. During this sequence of events, the Senate recessed on December 11 after providing, by unanimous consent, that when the fourth in this series of continuing resolutions was received from the House, it would automatically be deemed passed in the Senate. Finally, on December 15, both chambers completed action on FY2001 appropriations measures by agreeing to the conference report on the omnibus appropriations bill. Congress then adjourned sine die pursuant to H.Con.Res. 446. During the lame duck session, Congress also cleared the Presidential Threat Protection Act, the Striped Bass Conservation Act, and the Intelligence Authorization Act. It also sent President Clinton a bankruptcy reform measure, which the President subsequently pocket vetoed.
107th Congress, 2nd Session (2002) Congress met in intermittent or pro forma sessions during the pre-election period in 2002, but returned to a full schedule of business on November 12 with two priorities: finish work on 11 appropriations bills and consider creation of a Department of Homeland Security (DHS), a measure at the top of President George W. Bush’s legislative agenda. A bill to create the DHS had passed the House in late July, 2002, but the Senate did not act until after the election. The Senate passed a similar version of the measure on November 19, and the House agreed to the Senate amendment on November 22. President Bush signed the bill into law on November 25. Congress, however, was unable to resolve its appropriations differences. The House passed the fifth in a series of continuing resolutions on November 13, and the Senate agreed to the measure on November 19. This measure funded the government at FY2002 levels through January 11, 2003. The Defense Appropriations bill and Military Construction Appropriations bill were the only appropriations measures completed by Congress in 2002. In addition to the DHS, Congress completed action on, and the President signed into law, several other significant measures, including the Defense Authorization Act, the Intelligence Authorization Act, and measures regulating terrorism insurance and seaport security. The Senate adjourned sine die on November 20 and the House on November 22, 2002.
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108th Congress, 2nd Session (2004) A lame duck session was considered necessary in 2004 because many appropriation bills had not yet even received Senate action and Congress had not cleared an increase in the debt limit. Conferees also had reached no agreement over legislation to consolidate intelligence activities under a new national director, as recommended by the September 11 commission. The post-election environment was viewed as favorable to action on an omnibus appropriations measure, by facilitating adherence to caps on domestic discretionary spending, on which the administration insisted, as well as the elimination of many authorizing provisions. Congress initially cleared the measure on November 20, but, because it subsequently had to direct corrections in the enrollment of the bill, President Bush was able to sign it only on December 8, the day of the sine die adjournment. Similarly, although Congress could reach no final agreement on a congressional budget resolution, which would have advanced action to increase the debt limit, post-election conditions enabled the increase to be enacted as a freestanding measure. During the lame duck period, the administration intensified efforts to persuade House conferees on the intelligence bill to accept modifications in provisions to maintain military control over its own intelligence, keep intelligence funding confidential, and control immigration. The conference report cleared Congress on December 8 and was signed into law on December 17. Post-election conditions also permitted the resolution of conference deadlocks over several other reauthorizations, including the Individuals with Disabilities Education Act, a moratorium on internet taxation, and authority for satellite television systems to carry network programming. The last of these was enacted as one of the few legislative riders to be included in the omnibus appropriation bill. Failure to resolve policy disagreements, however, doomed several other reauthorizations, including the 1996 welfare reform and a highway bill, although the latter had also been delayed by demands in the Senate for assurances about the role to be played by minority conferees. Finally, a ban on assault weapons expired when the House declined to act on a measure renewing it.
ENDNOTES 1
Earlier versions of this chapter were prepared by the present author in collaboration with Richard C. Sachs, formerly Specialist in American National Government in CRS. In particular, Mr. Sachs was responsible for much of the text describing individual lame duck sessions. 2 See Raymond W. Smock, “Lame Duck Session,” in Donald C. Bacon, Roger H. Davidson, and Morton Keller, eds., The Encyclopedia of the United States Congress (New York: Simon & Schuster, (c) 1995), vol. 3, pp. 1244-1245. 3 See Johnny H. Killian, George A. Costello, and Kenneth R. Thomas, eds., The Constitution of the United States of America: Analysis and Interpretation, prepared by the Congressional Research Service, Library of Congress (Washington: GPO, 2004), p. 2089 [commentary on the 20th Amendment].
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In practice, a new Congress was sometimes first convened in an extra session that began closer to the start of its constitutional term. As described in following sections, this extra session could occur pursuant to either a presidential call or a law passed by the previous Congress. 5 This session, beginning in the even-numbered December, could last only last until the term of the sitting Congress expired early in the following March, when the new Congress came into office. For this reason, it was colloquially known as the “short session.” 6 See P. Orman Ray, “Lame-Duck Amendment,” in Stanley I. Kutler, ed., Dictionary of American History, 3d ed. (New York: Scribner, 2003), vol. 5, p. 24. For more information on the adoption of the 20th Amendment, see Alan P. Grimes, Democracy and the Amendments to the Constitution (Lexington, Mass.: Lexington Books, D.C. Heath, (c) 1978), pp. 104-108. 7 In congressional usage, the phrase is generally pronounced “sign a dye.” 8 Constitution, Article I, sec. 5. 9 “Notification of Reassembling of Congress,” proceedings in the House, Congressional Record, vol. 144, Dec. 17, 1998, p. 27770. See H.Con.Res. 353, 105th Cong., 112 Stat. 3699 at 3700. 10 See Walter Kravitz, Congressional Quarterly’s American Congressional Dictionary, 3rd ed. (Washington: CQ Press, 2001), p. 192. 11 Constitution, Article II, sec. 3. 12 In 1937 and 1939, however, President Franklin D. Roosevelt called Congress into special second sessions after sine die adjournment of the first session. U. S. Congress, House, Deschler’s Precedents of the United States House of Representatives, H. Doc. 94-66 1, 94th Cong., 2nd sess., vol. 1, by Lewis Deschler, Parliamentarian of the House 1928-1974 (Washington: GPO, 1977), chapter 1, secs. 2 and 3. 13 Ibid., chapter 1, Sec. 2.1. 14 This legislation related to the conduct of World War II, and has no connection with the War Powers Resolution (P.L. 93-148, 87 Stat. 555, 50 U.S.C. 154 1-1548) enacted in 1973 to regulate commitments of U.S. armed forces abroad. 15 Like the measure referred to in the previous note, this legislation related to the conduct of World War II, and has no connection with the contemporary War Powers Resolution.
In: Congress of the U.S: Commitees, Rules and Procedures ISBN 978-1-60456-416-7 Editor: Sela G. Thomason © 2009 Nova Science Publishers, Inc.
Chapter 23
RECESS APPOINTMENTS: A LEGAL OVERVIEW * T. J. Halstead SUMMARY Article II of the Constitution provides that the President "shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and counsels, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for and which shall be established by law." As a supplement to this authority, the Constitution further provides that "[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session." The Recess Appointments Clause was designed to enable the President to ensure the unfettered operation of the government during periods when the Senate was not in session and therefore unable to perform its advice and consent function. In addition to fostering administrative continuity, Presidents have exercised authority under the Recess Appointments Clause for political purposes, appointing officials who might have difficulty securing Senate confirmation. Coupled with the ambiguities inherent in interpreting the Clause, the President's use of the recess appointment power in such a fashion has given rise to significant political and legal controversy since the beginning of the Republic. This chapter provides an overview of the Clause, with a focus on its historical application and interpretation. This chapter is a companion piece to CRS Report RL32971, Judicial Recess Appointments: A Legal Overview, by T.J. Halstead, which focuses specifically on the application and interpretation of the Clause in the judicial context.
*
This is an edited, excerpted and augmented edition of a CRS Report for Congress publication, Order Code Code RL33009, dated July 11, 2007.
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INTRODUCTION The Constitution establishes that the President "shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and counsels, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for and which shall be established by law."1 As a corollary to this general maxim, the Constitution provides further that "[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."2 The Recess Appointments Clause was adopted by the Constitutional Convention without dissent and without debate regarding the intent and scope of its terms.3 In Federalist No. 67, Alexander Hamilton refers to the recess appointment power as "nothing more than a supplement...for the purpose of establishing an auxiliary method of appointment, in cases to which the general method was inadequate."4 During the ratification debates in Pennsylvania, Thomas McKean noted with approval the sharing of the appointive power with the Senate and stated that the Senate need not "be under any necessity of sitting constantly, as has been alleged, for there is an express provision made to enable the President to fill up all vacancies that may happen during their recess; the commissions, to expire at the end of the next session."5 Likewise, during the ratification debates in North Carolina, Archibald Maclaine stated: It has been objected...that the power of appointing officers was something like a monarchical power. Congress are not to be sitting at all times; they will only sit from time to time, as the public business may render it necessary. Therefore the executive ought to make temporary appointments...This power can be vested nowhere but in the executive, because he is perpetually acting for the public; for, though the Senate is to advise him in the appointment of officers, &c., yet, during the recess, the President must do this business, or else it will be neglected; and such neglect may occasion public inconveniences.6
In light of its express provisions and these pronouncements, it is generally accepted that the Clause was designed to enable the President to ensure the unfettered operation of the government during periods when the Senate was not in session and therefore unable to perform its advice and consent function.7 This conception of the recess appointment power as a practical accommodation is supported by the fact that until the Civil War, Congress consistently met for relatively short sessions followed by long recesses of six to nine months.8 This pattern largely adhered during and after the Civil War, with Congress scheduling an intrasession recess of approximately two weeks from the end of December until the beginning of January.9 The recess practices of Congress changed in the mid-twentieth century, and are now characterized by more frequent recesses of relatively short duration within sessions of a Congress. Adjournments between sessions are also shorter.10 However, in addition to fostering administrative continuity, Presidents have exercised authority under the Recess Appointments Clause for political purposes throughout the history of the republic, giving rise to significant political and legal controversy. For instance, President Madison's recess appointments of Albert Gallatin, John Quincy Adams and James A. Bayard as envoys to negotiate a peace treaty with Great Britain in 1813 prompted heated debate in the Senate.11 Presidents Jackson, Taylor, and Lincoln made hundreds of recess appointments during their terms.12 Additionally, recess appointments to the judiciary were
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common during the early years of the Republic, with the first five Presidents making 31 such appointments, including five to the Supreme Court.13 Among these, President Washington's recess appointment of John Rutledge as Chief Justice generated significant controversy, ultimately factoring in his rejection by the Senate.14 It is interesting to note, however, that "no recorded challenge was made to the constitutionality of his recess appointment."15 In total, twelve Justices have been appointed to the Supreme Court during Senate recesses, and many of these Justices participated in Court business prior to Senate action on their nominations.16 The mid-nineteenth century phenomena of long congressional adjournments, frequent resort to recess appointments, and the rise of the spoils system in the federal government spurred Congress to impose statutory restrictions on the President's appointment and removal power, including restrictions on paying certain classes of recess appointees.17 Additionally, the Tenure of Office Act of 1867, that figured prominently in the impeachment effort against President Johnson, included several provisions purporting to limit the recess appointment power of the President.18 As noted above, modern congressional recess practices differ significantly from the initial dynamic; sessions of Congress are now characterized by more frequent recesses of relatively short duration and adjournments between sessions have likewise become shorter.19 Accordingly, controversy over recess appointments may also now adhere to additional factors, such as the length of a recess, and the application of statutory restrictions to recess appointees.
TEXTUAL ISSUES AND HISTORICAL INTERPRETATION As noted above, practices with respect to recess appointments developed early and debates between Presidents and the Congress over the propriety of particular recess appointments occurred in the formative years of the Republic.20 Formal consideration of the issue has occurred primarily in the context of Attorney General opinions, with periodic attention from the courts and Congress. Aspects of the recess appointment power were considered as early as 1792, and there were at least nineteen formal Attorneys General opinions in the nineteenth century on recess appointments, the earliest being in 1823. The most recent major exposition by an Attorney General on the recess appointment power was in 1992 and while many of the interpretational questions surrounding the Clause are now deemed, at least by the Executive Branch, to be settled, the course of arriving at these interpretations was not unbroken by contrary opinions and expressions of doubt.
"Vacancies that May Happen" An initial question that arose was what constitutes a vacancy "that may happen during the Recess of the Senate." If the term "happen" is interpreted as referring only to vacancies that occur during a recess, it necessarily follows that the President would lack authority to make a recess appointment to a vacancy that existed prior to the recess. Conversely, if "happen" is construed more broadly to encompass vacancies that exist during a recess, the President would be empowered to make a recess appointment to any vacant position, irrespective of
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whether the position became vacant prior to or during "the Recess of the Senate." In 1792, the first Attorney General, Edmund Randolph, responded to an inquiry from Thomas Jefferson, then serving as Secretary of Foreign Affairs, as to whether a recess appointment could be made to the position of Chief Coiner of the Mint, a newly created position for which no nomination had been made before the Senate recessed.21 Positing whether the unfilled office was a vacancy "which has happened during the recess of the Senate," Randolph concluded that the vacancy occurred on the day the office had been created, and thus could not be filled with a recess appointment.22 Randolph based his opinion on the text of the Clause and on the "spirit of the Constitution," declaring that the Recess Appointments Clause must be "interpreted strictly" because it serves as "an exception to the general participation of the Senate."23 In 1799, Alexander Hamilton, then serving as Major General of the Army, responded to a similar inquiry from the Secretary of War, stating lilt is clear, that independent of the authority of a special law, the President cannot fill a vacancy which happens during a session of the Senate."24 In 1823, Attorney General William Wirt, without mentioning the Randolph interpretation, concluded that the phrase encompassed all vacancies that happen to exist during "the Recess."25 While Attorney General Wirt acknowledged that the "opposite construction is, perhaps, more strictly consonant with the mere letter" of the Clause (namely, the construction limiting the President to filling vacancies that originate during a recess), he opted for, in his view, "the only construction of the Constitution which is compatible with its spirit, reason, and purpose."26 Wirt stated further: The substantial purpose of the constitution was to keep these offices filled; and powers adequate to this purpose were intended to be conveyed. But if the President shall not have the power to fill a vacancy thus circumstanced, the powers are inadequate to the purpose, and the substance of the Constitution will be sacrificed to a dubious construction of its letter.27
Early controversies between the Senate and the President revolved around the meaning of this phrase and opposition to the interpretation offered by Attorney General Wirt had been expressed in the Senate.28 Story, in his Commentaries on the Constitution, also seems to adopt a construction different from Wirt's at least with respect to newly-created offices to which nominations had not been named (akin to the Randolph position).29 Subsequent opinions of the Attorney General in 1832 and 1841 endorsed Wirt's interpretation, although both involved second recess appointments after initial recess commissions had expired, and both opinions noted that, under such circumstances, the vacancy could be said to occur after adjournment of the Senate when the first recess commission ended.30 Furthermore, Attorney General Taney, in the 1832 opinion stated that the Constitution "was formed for practical purposes, and a construction that defeats the very object of the grant of power cannot be the true one. It was the intention of the constitution that the offices created by law, and necessary to carry on the operations of the government, should always be full, or at all events, that the vacancy should not be a protracted one."31 Attorney General Taney went on to stress, however, that "vacancies are not designedly to be kept open by the President until the recess, for the purpose of avoiding the control of the Senate."32 In a brief opinion in 1845, Attorney General Mason concluded that "[i]f vacancies are known to exist during the session of the Senate, and nominations are not then made, they cannot be filled by executive appointments in the recess of the Senate."33 The Attorney
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General did not mention his predecessor's opinions to the contrary, although in a subsequent opinion he did note the prior opinions and stated that "[f]rom the commencement of the government, it is believed that a power has been exercised which would appear to be inconsistent with a construction of the section of the constitution which would confine the meaning of the word 'happen' to the time at which the office is in fact vacated."34 Attorney General Evarts discussed this later opinion of Mason's in an opinion issued in 1868, stating that it "expresses his general concurrence in the construction of the constitutional provision under consideration adopted by his predecessors."35 Beginning in 1855, formal Attorneys General opinions returned to the Wirt interpretation, even with respect to newly created offices that had never been filled.36 Attorney General Bates, in an 1862 opinion, stated that the question "is settled...as far, at least, as a constitutional question can be settled, by the continued practice of your predecessors, and the reiterated opinions of mine, and sanctioned, as far as I know or believe, by the unbroken acquiescence of the Senate."37 Attorney General Stanberry justified his interpretation by noting that the term vacancy "implies duration, a condition or state of things which may exist for a period of time. Can it be said that the word happen, when applied to such a subject, is only properly applicable to its beginning?"38 Stanberry further stated that executive power must always have capacity for action and that to adopt a narrow construction of the Recess Appointments Clause would interfere with that ability.39 Attorney General Evarts, in an 1868 opinion, declared the matter so settled that it is "hardly useful to express an opinion as upon an original question."40 Evarts nonetheless "attempted to weigh anew the opposing interpretation of this clause of the Constitution" in light of the "renewed interest in the whole subject of executive authority in appointments to office, excited by recent legislation of Congress," ultimately concluding that "I...cannot but give my concurrence to the views of my learned predecessors."41 Subsequent Attorneys General opinions have consistently interpreted "happen" to mean "happen to exist" and have condoned recess appointments to offices that became vacant while the Senate was in session.42 This interpretation was first adopted by a federal court in the 1880 decision In re Farrow.43 In Farrow, Circuit Justice Woods adopted the reasoning of the aforementioned Attorneys General opinions, stating that "[t]hese opinions exhaust all that can be said on the subject."44 In reaching his conclusion, Circuit Justice Woods rejected the contrary opinion of a district court, stating that its holding "ought not to be held to outweigh the authority of the great number which are cited in support of the opposite view, and of the practice of the executive department for nearly 60 years, the acquiescence of the senate therein, and the recognition of the power claimed by both houses of congress."45 The holding in Farrow was also followed by Circuit Justice Woods in In re Yancey.46 This interpretation has adhered in judicial opinions considering the issue in the modern era. In United States v. Allocco, for instance, the Court of Appeals for the Second Circuit stated that a contrary interpretation "would create executive paralysis and do violence to the orderly functioning of our complex government.''47 Likewise, in United States v. Woodley, the Court of Appeals for the Ninth Circuit stated that a contrary interpretation would "lead to the absurd result that all offices vacant on the day the Senate recesses would have to remain vacant at least until the Senate reconvenes."48 Most recently, in Evans v. Stephens, the Court of Appeals for the Eleventh Circuit stated that "interpreting the phrase to prohibit the President from filling a vacancy that comes into being on the last day of a Session but to empower the President to fill a vacancy that arises immediately thereafter (on the first day of a recess) contradicts what we understand
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to be the purpose of the Recess Appointments Clause: to keep important offices filled and the government functioning."49 The decisions in Allocco, Woodley, and Evans v. Stephens are additionally significant, in that all three held that the President's power under the Recess Appointments Clause extends to filling judicial vacancies on Article III courts.50 Thus, Attorneys General and courts have rejected a narrow interpretation of the provision and have adopted a construction seen as necessary for continuous and efficient operation of the government. It can also be argued that the Congress has acquiesced in this interpretation, primarily through the passage of statutes, discussed below, that recognize the possibility of such appointments.51 Furthermore, while congressional statements disputing the prevailing interpretation have been made during periods of controversy surrounding recess appointments, such statements have been made by "individual members of the senate...but not the senate itself."52
"The Recess of the Senate" Another question that emerged later was the meaning of the phrase "the Recess of the Senate" in the Clause. The first formal opinion on the subject was issued by Attorney General Knox in 1901, and concluded that the phrase applied only to adjournments between sessions of Congress (commonly referred to as "intersession" recesses).53 In reaching this determination, Knox placed significant weight on the use of the definite article "the" in the Recess Appointments Clause, emphasizing that “[i]t will be observed that the phrase is 'the recess?54 The opinion further concluded that if recess appointments were allowed during periods other than an intersession recess, nothing would prevent an appointment from being made "during any adjournment, as from Thursday or Friday until the following Monday?"55 The opinion specifically rejected a Court of Claims decision that upheld paying the salary of an Army paymaster appointed during a temporary recess in 1867 (the recess extended from July 20 to November 21, 1867).56 This position was abandoned in 1921 in an opinion issued by Attorney General Daugherty that declared that an appointment made during a 29 day intrasession recess was constitutional. The Daugherty opinion focused on the practical aspects of the recess appointment dynamic, stating that "[i]f the President's power of appointment is to be defeated because the Senate takes an adjournment to a specified date, the painful and inevitable result will be measurably to prevent the exercise of governmental functions."57 In support of this interpretation, the Attorney General cited the Court of Claims decision repudiated in the Knox opinion, as well as a 1905 report of the Senate Judiciary Committee that had been asked to examine the meaning of the term "recess." The report had concluded: It was evidently intended by the framers of the Constitution that it [Article II, sec. 2] should mean something real, not something imaginary; something actual, not something fictitious. They used the word as the mass of mankind then understood it and now understand it. It means, in our judgment, in this connection the period of time when the Senate is not sitting in regular or extraordinary session as a branch of the Congress or in extraordinary session for the discharge of executive functions; when its members owe no duty of attendance; when its chamber is empty; when, because of its absence, it can not receive communications from the President or participate as a body in making appointments... . This is essentially a proviso to
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the provision relative to appointments by and with the advice and consent of the Senate. It was carefully devised so as to accomplish the purpose in view, without in the slightest degree changing the policy of the Constitution, that such appointments are only to be made with the participation of the Senate. Its sole purpose was to render it certain that at all times there should be, whether the Senate was in session or not, an officer for every office, entitled to discharge the duties thereof.58
Further emphasizing this functional approach, the Daugherty opinion rejected the notion that this broader interpretation would authorize intrasession appointments during brief adjournments, declaring that "an adjournment for 5 or even 10 days [cannot] be said to constitute the recess intended by the Constitution."59 The opinion concluded by emphasizing that while "[e]very presumption is to be indulged in favor of the validity of whatever action [the President] may take..., there is a point, necessarily hard of definition, where palpable abuse of discretion might subject his appointment to review."60 Subsequent Attorney General and Department of Justice Office of Legal Counsel opinions have continued to support the constitutionality of intrasession recess appointments, with more recent pronouncements on the issue asserting that the Clause encompasses all recesses in excess of three days.61 It would appear that the pocket veto case, Kennedy v. Samspon, has influenced, at least to a minor degree, the view of the propriety of recess appointments during short recesses of the Senate.62 In Kennedy, the court struck down the exercise of the President's pocket veto power during a six-day intrasession recess of the Congress. The Constitution provides that a bill becomes law if not returned by the President after presentment within ten days, "unless the Congress by their adjournment prevent its return, in which case it shall not be a law."63 The case cast doubt on the validity of all intrasession pocket vetoes, not only those of short duration, and Presidents have since limited their pocket vetoes to periods between sessions or after a Congress has finally adjourned.64 The Department of Justice, while asserting the validity of a recess appointment during a 33 day intrasession recess, nevertheless advised President Carter that "in view of the functional affinity between the pocket veto and recess appointment powers, Presidents during recent years have been hesitant to make recess appointments during intrasession recesses of the Senate."65 While the decision in Kennedy appears to have moderated the use of the recess appointment power in some instances, recent Presidents have nonetheless made numerous appointments during short intrasession recesses. President Reagan, for instance, made a number of intrasession recess appointments, one during an 18 day recess ending September 8, 1982, nine during a 23 day recess ending on July 23, 1984, and two during the 13 day recess ending on January 21, 1985. President George H.W. Bush made eight intrasession recess appointments, the shortest occurring during a 17 day recess. President Clinton made numerous intrasession appointments, including five during an 11 day recess ending on January 22, 1996, five during a 16 day recess ending on April 15, 1996, one during a nine day recess ending on June 3, 1996, and one during an 11 day recess ending on January 20, 2001. President George W. Bush has continued the recent practice of making appointments during brief intrasession recesses, including six such appointments during a recess ending on April 28, 2003, four during a 10 day recess ending on April 19, 2004, and, perhaps most controversially, the appointment of William H. Pryor to the Court of Appeals for the Eleventh Circuit on February 20, 2004, on the seventh day of a ten day recess ending on February 23, 2004.66 The Court of Appeals for the Eleventh Circuit upheld Pryor' s appointment, stating:
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T. J. Halstead The Constitution, on its face, does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President's appointment power under the Recess Appointments Clause. And we do not set that limit today. Although a President has not before appointed a judge to an Article III court during an intrasession recess as short as the one in this case, appointments to other offices — offices ordinarily requiring Senate confirmation — have been made during intrasession recess of about this length or shorter. Furthermore, several times in the past, fairly short intrasession recesses have given rise to presidential appointments of judges to Article III courts.67
While it did not specifically address "intrasession" recess appointments, the 1905 Senate Judiciary Committee Report, mentioned above and relied on by Attorney General Daugherty in his 1921 opinion, was prompted by what undoubtedly was the briefest recess ever relied on by a President in order to make recess appointments. At the moment the 58th Congress, 1st session ended at noon, December 7, 1903 and the 2' session immediately began, President Theodore Roosevelt announced the recess appointment of over 160, mostly military, officers. Two of these appointees had previously held recess appointments and were controversial officeholders. Taking action in accordance with the aforementioned position of Attorney General Knox rejecting the validity of intrasession recess appointments, Roosevelt construed the period between these sessions as a constructive recess.68 The 1905 Senate Judiciary Committee Report was issued fourteen months after this action and, as is indicated by the quotation included above, emphatically rejected Roosevelt's action. It is important to note, however, that the Report, while expressing disapprobation of the President's exercise of the recess appointment power in such a manner, could be interpreted as validating the execution of intrasession recess appointments generally. Furthermore, Roosevelt's actions could be viewed as a practical manifestation of the potential infirmities of the Knox interpretation: that is to say, if a formalistic interpretation of the Clause rests upon a concern that allowing intrasession appointments will foster systematic avoidance of the Senate's advice and consent function, the fact that a President is able to make such appointments during an instantaneous "constructive recess" of the Senate would appear to belie such a distinction.69 Alternatively, it could be argued that this historically anomalous event is simply that, and lends no weight to the overall consideration of the matter. The question of what constituted a recess for purposes of the appointment power arose substantially later than the vacancy issue due to the fact that Congress took few intrasession recesses, other than brief holiday recesses, until the advent of the modern era.70 Further, as is evident from the aforementioned precedents, the question of what constitutes a "recess" has become more critical as the opportunity for the execution of such appointments has increased. Indeed, as illustrated above, there has been a steady and significant increase in intrasession recess appointments attendant to this shift in the recess practices of the Congress.
AUTHORITY AND TENURE OF RECESS APPOINTEES As a fundamental matter, it is important to note that a confirmed appointee and a recess appointee possess the same legal authority.71 The commission of a recess appointee expires "at the end of [the Senate's] next session," whereas the service of a confirmed appointee continues until the end of the term or at the pleasure of the President, subject to the
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requirements laid out by Congress in creating the position.72 The reconvening of the Senate during the same session after a recess is deemed a continuation of the session and is not regarded as the "next session" within the meaning of the constitutional provision.73 Thus, for example, an individual who receives an intrasession recess appointment during the traditional August recess of a 1st session of a Congress could serve until the end of the second session, which would likely be late in the following year.74 The President may remove a recess appointee before expiration of his term, either by outright removal (assuming he otherwise has discretionary removal authority with respect to the office) or by having another nominee confirmed by the Senate.75 If the nomination of the person appointed during the recess is confirmed upon the reconvening of the Senate, it has been held that the new commission for the full statutory term commences from the date of the recess appointment. In other words, the full statutory term relates back to the date on which the person first assumed office by means of the recess appointment. The determination of this question may also depend on the particular statutory provision regarding terms of office and filling of vacancies.76 It is important to note that Senate rejection of the nomination of a recess appointee does not constitute a removal, and that the rejected nominee may still hold office under the Constitution until the termination of the session.77 Furthermore, upon the expiration of the constitutional term of a recess appointee, a new recess appointment, either of the same, or another person, may be made.78 Successive recess appointments of the same individual, however, may implicate the pay restriction delineated in 5 U.S.C. §5503(a)(2), as is discussed in further detail below. Also, while not addressing the issue directly, the court in Staebler v. Carter noted that a President "could probably not consistently with the principle of checks and balances grant a recess appointment to one rejected for the particular position by a vote of the Senate."79 Additionally, it should be noted that a vacancy must exist before the President can exercise his recess appointment authority.80 While this observation may seem self evident, the issue may be complicated by the presence of "holdover" provisions that regularly accompany fixed term positions. As an example of such a provision, a member of the Federal Election Commission "may serve on the Commission after the expiration of his or her term until his or her successor has taken office as a member of the Commission."81 Considering this provision in Staebler, the court upheld a recess appointment to a position that was still occupied by a holdover Federal Election Commissioner, based on a determination that the expiration of the holdover commissioner's formal term created an immediate and ongoing vacancy.82 Conversely, in Mackie v. Clinton, the district court held that the holdover provision for a member of the Board of Governors of the United States Postal Service did not constitute a vacancy sufficient to allow the appointment of a new member pursuant to the Recess Appointments Clause.83 The relevant statutory provision provides that "[t]he terms of the 9 Governors shall be nine years... [a] Governor may continue to serve after the expiration of his term until his successor has qualified, but not to exceed one year."84 Relying on this language, the court invalidated a recess appointment to the Board, based on its determination that the language of the holdover provision established that a holdover Governor was to hold the office after the expiration of his term, for a period not to exceed one year, "unless he dies, resigns, is lawfully removed or 'some successor has qualified,' i.e. has been nominated by the President and confirmed by the Senate."85 From these decisions, it seems apparent that the issue of whether a holdover provision constitutes a vacancy for recess appointment purposes will hinge on the specific language contained therein.86
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CONGRESSIONAL ACTION Since the early history of the Republic, Congress has established a statutory framework designed to protect the Senate's constitutional role in the confirmation process. For instance, the Federal Vacancies Reform Act of 1998 (which governs the filling of vacancies falling outside the scope of the Recess Appointments Clause) establishes which individuals may be designated by the President to temporarily perform the duties and functions of vacant office and the length of time a designee may serve.87 The original version of the Vacancies Act was enacted in 1868,88 and the legislative roots of such provisions can be traced back to a 1795 enactment limiting the time a temporary assignee could hold office to six months.89 In 1863, Congress attached a rider to the FY1864 Army Appropriations Act that was the forerunner of current statutory provisions. It prohibited the payment of money from the Treasury "to any person acting or assuming to act as an officer, civil, military, or naval, as salary in any office, which is not authorized by some previously existing law, unless where such office shall be subsequently sanctioned by law," and provided further that "nor shall any money be paid out of the Treasury, as a salary, to any person appointed during the recess of the Senate, to fill a vacancy in any existing office, which vacancy existed while the Senate was in session and is by law required to be filled by and with the advice and consent of the Senate, until such appointee shall have been confirmed by the Senate."90 Under this language, an officer might have to serve without pay (relying on savings or loans), until such time as the Senate consented to the nomination.91 These provisions were enacted in response to President Lincoln's recess appointment of hundreds of military officers in violation of statutory authorization.92 The question of the proper interpretation of the word "happen" in the Recess Appointments Clause was raised with several Senators echoing the position of a contemporaneously issued Senate Judiciary Committee Report stating that vacancies that arose while the Senate was in session could not be filled by recess appointment.93 Other members noted that contrary opinions existed on the subject. Elaborating on the intent of the provision, Senator Fessenden stated: lilt may not be in our power to prevent the appointment, but it is in our power to prevent the payment; and when payment is prevented, I think that will probably put an end to the habit of making such appointments."94 These provisions were followed by the passage of the Tenure of Office Act in 1867, which contained a number of restrictions on the President's appointment and removal powers.95 Section 2 of the act purported to limit the President's power to suspend officers during a recess to instances where it was determined to the satisfaction of the President that an officer was guilty of misconduct in office, crime, or was incapable or legally disqualified to hold office. Such removals were to be reported to the Senate after it reconvened and, in the event that the Senate did not concur with the suspension, "such officer so suspended" was to "resume the functions of his office."96 Section 3 of the act purported to limit the President's authority to make recess appointments, providing that such an appointment could be made only if the vacancy occurred by death or resignation. If a recess appointee's nomination was not thereafter confirmed in the next session of the Senate, the office was to "remain in abeyance."97 The act also delineated criminal penalties and cut-off of salary for violations of its provisions. President Andrew Johnson ignored the provisions of the act in removing Secretary of War Edwin Stanton from office, precipitating his impeachment.98 Congress amended the act in 1869,99 and ultimately repealed the provisions entirely in 1887.100 Similar
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limits on the President's removal power were struck down as unconstitutional in the 1926 decision of Myers v. United States, with the Court stating: "we have no hesitation in holding that... the Tenure of Office Act of 1867, in so far as it attempted to prevent the President from removing executive officers who had been appointed by him by and with the advice and consent of the Senate, was invalid, and that subsequent legislation of the same effect was equally so."101 The salary bar for recess appointees that was originally enacted in 1863 remained intact until it was amended in 1940 to provide exceptions to the flat prohibition, making it less burdensome on officeholders.102 Codified at 5 U.S.C. § 5503, it currently establishes that if a vacancy existed while the Senate was in session a person subsequently appointed to that position during a recess may not receive his salary until he is confirmed by the Senate. Exceptions to this payment prohibition are provided (1) for appointees to vacancies that arise within 30 days of the recess; (2) for appointees to an office for which a nomination was pending at the time of the recess, so long as the nomination is not of an individual appointed during the preceding recess of the Senate; and (3) for appointees selected to an office where a nomination had been made but rejected by the Senate within 30 days of the recess, and the appointee was not the individual so rejected.103 Section 5503(b) provides that a nomination to fill a vacancy falling within any of the aforementioned exceptions must be submitted to the Senate not later than 40 days after the beginning of the next session of the Senate. Put more succinctly, a recess appointee to a vacancy existing while the Senate was in session can receive salary pending Senate confirmation of his nomination if (1) the vacancy arose within 30 days before the end of the session, (2) a nomination for the office (other than the nomination of a person appointed during the preceding recess) was pending at the end of the session, or (3) if a nomination for the office was rejected within 30 days of the end of the session and a person other than the rejected nominee receives the recess appointment. These exceptions were designed, as stated in a House Report accompanying the act, "to render the existing prohibition on the payment of salaries more flexible."104 The report further explained that "[f]rom a practical standpoint it frequently creates difficulties especially in those cases in which a vacancy arose shortly before the close of a congressional session, leaving insufficient time to fill the vacancy by nomination and confirmation. Difficulties also arise in cases in which a session terminates before the Senate acts on pending nominations, as has at times happened."105 It is interesting to note that the term "session" as used in § 5503 refers to any time the Senate convenes, and, as such, does not have the same meaning as employed in the Recess Appointment Clause. The version of this law preceding § 5503 used the phrase "termination of the session" as opposed to the phrase "end of the session," which now appears in § 5503(a)(1). This revision was not intended as a substantive change, however.106 The "termination" phrase was interpreted by the Comptroller General to encompass "any adjournment, whether final or not, in contemplation of a recess covering a substantial period of time."107 In addition to the restrictions laid out in § 5503, an annual funding limitation has been included in all Treasury and General Governmental Appropriations Acts for over 60 years that prohibits the payment of any recess appointee whose nomination has been voted down by the Senate.108 The argument is sometimes forwarded that the service of a recess appointee who falls under one of the aforementioned pay restrictions is barred by 31 U.S.C. § 1342.109 That
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provision states that "an officer or employee of the United States government or of the District of Columbia government may not accept voluntary services for either government or employ personal services exceeding that authorized by law except for emergencies involving the safety of human life or the protection of property." The prohibition codified at § 1342 was enacted in response to a practice common late in the Nineteenth Century under which lower grade government employees were asked to "volunteer" their services for overtime work and agencies subsequently requested additional appropriations from Congress to pay them.110 Because the voluntary services prohibition is designed to prevent federal agencies from seeking additional appropriations, interpretations of § 1342 have concluded that although the section prohibits federal entities from accepting voluntary services, it does not prohibit acceptance of gratuitous services for which no future claim for compensation will be made.111 Pursuant to this distinction, the Government Accountability Office (GAO) has ruled that compensation that is not fixed by statute may be waived, so long as the waiver renders any service gratuitous. Conversely, GAO has ruled that compensation that is fixed by statute may not be waived and deemed gratuitous without specific statutory authority.112 While § 1342 may be controlling with regard to the general service of officers and employees of the United States, there does not appear to be any basis for its application to recess appointees who are statutorily barred from receiving pay, irrespective of whether the position at issue carries a discretionary or fixed rate of pay. As a fundamental matter, the President's recess appointment power, including the power to make recess appointments, arises from the text of the Constitution. Accordingly, it is difficult to formulate a rationale that would support the conclusion that a congressional enactment may prevent the service of a recess appointee who falls within one of the aforementioned prohibitions on payment. Additionally, it should be noted that the aforementioned pay proscriptions themselves clearly contemplate that recess appointees falling within their purview will continue to serve, further obviating the application of § 1342.113 The provisions governing recess appointments are designed to protect the Senate's advice and consent function by confining the recess appointment power of the President. By targeting the compensation of appointees as opposed to the President's recess appointment power itself, these limitations act as indirect controls on recess appointments, and their constitutionality has not been adjudicated. The court in Staebler v. Carter noted in dicta that "if any and all restrictions on the President's recess appointment power, however limited, are prohibited by the Constitution, 5 U.S.C. § 5503...might also be invalid."114 Additional constitutional concerns might arise from the application of these provisions to judicial recess appointees."115 Attorneys General have consistently advised Presidents of the applicability of the pay restriction statutes without raising constitutional concerns.116 The scope of the decision in Evans could be seen as lending credence to the concerns raised in Staebler. As touched upon above, the Eleventh Circuit in Evans upheld the intrasession recess appointment of William H. Pryor to that court, based upon a broad interpretation of the President's authority under the Clause."117 The court's decision was accompanied by a dissent from Judge Barkett arguing that a literal and restrictive interpretation of the Clause was necessitated by the "real, concrete concern that the understanding of the recess appointment power embraced by the majority will allow the President to repeatedly bypass the role the Framers intended the Senate to play in reviewing presidential nominees."118 Accordingly, the majority's acceptance of brief intrasession recess appointments, coupled with the potential constitutional invalidity of the statutory restrictions
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noted above, could give rise to a dynamic whereby the President would have a legal and constitutional basis upon which to completely bypass the Senate confirmation process, in that the President would be empowered to make successive recess appointments during short recesses with the practical effect of enabling an appointee to serve throughout the course of an Administration without submitting to the Senate confirmation process.119 The development of such a dynamic is plausible in light of the decisions in Staebler and Evans, and could arguably transform the Recess Appointments Clause from the supplementary and auxiliary mechanism discussed by Hamilton into a more significant grant of presidential power. In addition to the aforementioned statutory provisions, Congress has also attempted to influence presidential action in the recess appointment context through resolutions. Resolutions objecting to Madison's appointments of envoys to Great Britain were debated in 1814, but not brought to a vote.120 It is arguable that a sense of the Senate resolution enacted in 1960 expressing reservation over recess appointments to the Supreme Court has influenced presidential exercise of the recess appointment power in the judicial context.121 Prompted by President Eisenhower's recess appointments of Earl Warren, William J. Brennan, Jr., and Potter Stewart to the Supreme Court in 1953, 1956, and 1958, respectively, Senator Hart introduced S.Res. 334 to discourage such appointments. The resolution provided that it was the sense of the Senate that this type of recess appointment "is not wholly consistent with the best interests of the Supreme Court, the nominee who may be involved, the litigants before the Court, nor indeed the people of the United States." The resolution further announced the position that such appointments should be avoided "except under unusual and urgent circumstances."122 No recess appointments to the Supreme Court have been made since the enactment of this resolution, and there has been an attendant decrease in the number of judicial recess appointments generally, with only four such appointments occurring since 1960. However, as is indicated by the decision in Evans, the use of the recess appointment power in the judicial context remains a contentious issue.
CONCLUSION While generally perceived as a straightforward, pragmatic provision designed to foster administrative continuity, the history of the Recess Appointments Clause shows that it has also been employed by Presidents for political purposes throughout the history of the Republic. As such, the Clause has been the source of recurrent controversy, beginning with the Administration of George Washington, and continuing to the current Administration of George W. Bush. Historical interpretation and judicial treatment of the Clause have fleshed out many of its inherent ambiguities, to the extent that there is now precedent supporting the propriety of such appointments irrespective of when the vacancy at issue arose. Likewise, precedent has been established to support recess appointments during both intersession and brief intrasession recesses. However, many tensions remain regarding the proper scope and application of the Clause. These tensions, coupled with the lack of any definitive consideration by the Supreme Court, would thus seem to ensure that the Clause will continue to be the source of political and legal controversy.
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ENDNOTES 1
U.S. Const., Art. II, § 2, cl. 2. The appointment of other, so-called "inferior officers," may be vested by Congress in the President alone, courts, or department heads. Id. 2 U.S. Const., Art. II, § 2, cl. 3. 3 CRS Report RL31112, Recess Appointments of Federal Judges, by Louis Fisher (out-ofprint; available from the author). 4 The Federalist, No. 67, at 409-10 (Alexander Hamilton) (Clinton Rossiter ed. 1961). 5 2 The Documentary History of the Ratification of the Constitution 537 (Merrill Jensen, ed. 1976). 6 Edward A. Hartnett, Recess Appointments of Article III Judges: Three Constitutional Questions, 26 Cardozo L. Rev. 377, 380-81 (2005) (quoting 4 The Founders' Constitution 37, 102-03 (P. Kurland ed., 1787)). 7 CRS Report RS21308, Recess Appointments: Frequently Asked Questions, by Henry B. Hogue. 8 Id. See also Michael A. Carrier, When is the Senate in Recess for Purposes of the Recess Appointments Clause? 92 Mich. L. Rev. 2204, 2212 (1994). 9 Id. at 2212. 10 See Michael B. Rappaport, The Original Meaning of the Recess Appointments Clause, 52 UCLA L. Rev. 1487, 1500-01 (2005). 11 See, 20 Op. A.G. 284 (1996). 12 See, Fish, Carl R. "Removal of Officials by the Presidents of the United States." Annual Report of the American Historical Association for the Year 1899. Vol. 1. Washington, D.C., Government Printing Office (1900). 13 Thomas A Curtis, Recess Appointments to Article III Courts: The Use of Historical Practice in Constitutional Interpretation, 84 Colum. L. Rev. 1758, 1755 (1984). 14 Id. at 1775-76. 15 Id. at 1776. 16 Henry B. Hogue, The Law: Recess Appointments to Article III Courts, Presidential Studies Quarterly 34, No. 3 at 661 (2004). 17 See n.90 and accompanying text, infra. 18 See n.95 and accompanying text, infra. 19 Rappaport, n.10, supra. 20 See Curtis, n.13, supra, at 1758. 21 Edmund Randolph, Opinion on Recess Appointments (July 7, 1792), in 24 The Papers of Thomas Jefferson, at 165-67 (John Catanzariti et al. ed., 1990). See also, Hartnett, n.6, supra, at 384-86; Rappaport, n.10, supra, at 1518-19. 22 n.21, supra, at 166; Rappaport, n.10, supra, at 1519. 23 Randolph, n.21, supra, at 166; Rappaport, n.10, supra, at 1519. 24 n.10, supra, at 1519. 25 1 Op. A.G. 631, 633-34 (1823). 26 1d. 27 Id. at 632. 28 See George H. Haynes, The Senate of the United States, Vol. 2 at 772-73 (Russell and Russell ed., 1960).
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3 Story, Commentaries on the Constitution of the United States 411 (Da Capo ed., 1970). 2 Op. A.G. 525 (1832); 3 Op. A.G. 673 (1841). 31 2 Op. A.G. at 526-27. 32 2 Op. A.G. at 528 (emphasis in original). 33 4 Op. A.G. 361, 363 (1845). 34 4 Op. A.G. 523, 525 (1846). 35 12 Op. A.G. 455 (1868). 36 7 Op. A.G. 186 (1855); 18 Op. A.G. 28 (1884); 19 Op. A.G. 261 (1889). 37 10 Op. A.G. 356 (1862) 38 12 op. A.G. 32, 34 (1866) (emphasis in original). 39 Id. at 38. 40 12 Op. A.G. 449, 452 (1868). 41 Id. 42 See 14 Op. A.G. 562 (1875); 15 Op. A.G. 207 (1877); 16 Op. A.G. 522 (1880); 16 Op. A.G. 538 (1880); 17 Op. A.G. 521 (1883); 18 Op. A.G. 29 (1884); 19 Op. A.G. 261 (1889); 26 Op. A.G. 234 (1907); 30 Op. A.G. 314 (1914); 33 Op. A.G. 20 (1921); 41 Op. A.G. 463 (1960); 6 U.S. Op. Off. Legal Counsel 585 (1982). 43 3 Fed. 112, 116 (C.C.N.D. Ga. 1880) (stating that the President has the power to make appointments "notwithstanding the fact that the vacancy filled by his appointment first happened when the senate was in session."). 44 Id. at 115. 45 Id. at 115 (rejecting the holding in Case of District Attorney of United States, 7 Fed. Cas. 731 (No. 3924, E.D. Pa. 1868)); see also, contrary opinion in Schenck v. Peay, 21 Fed. Cas. 672 (No. 12451 E.D. Ark. 1869). 46 28 Fed. 445, 450 (C.C.W.D. Tenn. 1886). 47 305 F.3d 704, 712 (2d Cir. 1962), cert. denied, 371 U.S. 964 (1963). 48 751 F.2d 1008, 1012 (9th Cir. 1985), cert. denied, 475 U.S. 1048 (1986). 49 387 F.3d 1220, 1226-27 (11th Cir. 2004), cert. denied, 125 S.Ct. 1640 (2005). 50 For an analysis of the interplay of the Recess Appointments Clause and Article DI of the Constitution, see CRS Report RL32971, Judicial Recess Appointments: A Legal Overview, by T.J. Halstead. 51 See n.90 and accompanying text, infra.. 52 Farrow, 3 Fed. at 115. 53 23 Op. A.G. 599 (1901). 54 23 Op. A.G. at 600 (emphasis in original). 55 Id. at 603. 56 See Gould v. United States, 19 Ct. Cl. 593 (1884). 57 33 Op. A.G. 20, 23 (1921). 58 S.Rept. No. 4389, 58th Cong., 3d Sess. 2 (1905); 39 Cong. Rec. 3823-24 (1905). 59 Id. at 25. 60 Id. at 25. 61 See Evans v. Stephens, No. 04-828, Brief for the United States in Opposition to Petition for a Writ of Certiorari, at 11 (U.S. 2005); Mackie v. Clinton, Memorandum of Points and Authorities in support of Defendants' Opposition to Plaintiffs' Motion for Partial Summary Judgment, at 24-26, Civ. Action No. 93-0032-LFO (D.D.C. 1993). 62 511 F.2d 430 (D.C. Cir. 1974). 30
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U.S. Const., Art. I, § 7, cl. 2. See Barnes v. Kline, 759 F.2d 21 (D.C. Cir. 1985) (invalidating intersession pocket veto), vacated as moot sub nom., Burke v. Barnes, 479 U.S. 361 (1987). 65 3 U.S. Op. Off. Legal Counsel 314, 316 (1979). 66 Information on recess appointments may be obtained in the Weekly Compilation of Presidential Documents. 67 Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004), cert. denied, 125 S.Ct. 16401 (2005). 68 See Hogue, n.16, supra, at 671. 69 See Hartnett, n.6, supra, at 416. 70 See Carrier, n.8, supra, at 2212-13. 71 See Hogue, n.7, supra, at 3. 72 Id. at 3. 73 41 Op. A.G. 463, 470-71 (1960); 28 Comp. Gen. 121 (1948). 74 For an exchange on the issue of whether the Senate could alter its recess practices to bring about earlier termination of recess appointments, see Seth Barrett Tillman, Senate Termination of Presidential Recess Appointments, 101 Nw. U. L. Rev. Colloquy 82 (2007); Brian C. Kalt, Keeping Recess Appointments in Their Place, 101 Nw. U. L. Rev. Colloquy 88 (2007); Seth Barrett Tillman, Terminating Presidential Recess Appointments: A Reply to Professor Brian C. Kalt, 101 Nw. U. L. Rev. Colloquy 94 (2007); Brian C. Kalt, Keeping Tillman Adjournments in their Place: A Rejoinder to Seth Barrett Tillman, 101 Nw. U. L. Rev. Colloquy 108 (2007). 75 41 Op. A.G. at 471. 76 37 Op. A.G. 282 (1933); 9 Comp. Gen. 190 (1929). 77 See, In re Marshalship, 20 Fed. 379 (D. Ala. 1884); 2 Op. A.G. 336 (1830); 21 Comp. Dec. 789 (1915) (Comptroller of the Currency). 78 2 Op. A.G. 525 (1832); 3 Op. A.G. 673 (1841); 4 Op. A.G. 523 (1846); 11 Op. A.G. 179 (1865); 28 Comp. Gen. 30, 38 (1948); 28 Comp. Gen. 121, 129 (1948). 79 464 F.Supp. at 601, n.41. 80 See 3 U.S. Op. Off. Legal Counsel 314, 317 (1979) ("A recess appointment presupposes the existence of a vacancy. If there is an incumbent in the office the recess appointment in itself does not effect a removal of the incumbent so as to create a vacancy. Before the President can exercise his recess appointment power in such a case he must exercise his constitutional removal power to the extent it is available, or, if not available, the incumbent must resign" (citations omitted)). 81 2 U.S.C. §437c(a)(2)(B). 82 464 F.Supp. at 589. 83 827 F.Supp. 56 (1993), vacated as moot, 1994 WL 163761 (D.C. Cir. 1994). 84 39 U.S.C. §202(b). 85 Mackie, 827 F.Supp. at 58. See also, Swan v. Clinton, 100 F.3d 973 (D.C. Cir. 1996); Wilkinson v. Legal Services Corp., 80 F.Supp. 891 (D.D.C. 1994), reversed on other grounds, Wilkinson v. Legal Services Corp., 80 F.3d 535 (D.C. Cir. 1996); McCalpin v. Dana, No. 85-542 (D.D.C. 1982), vacated as moot sub nom., McCalpin v. Durant, 766 F.2d 535 (D.C. Cir. 1985). 86 See Hogue, n.7, supra, at 3; Fisher, n.3, supra, at 8. 87 5 U.S.C. §§ 3345-3349d. The Vacancies Act provides the exclusive means for authorizing the temporary filling of advice and consent positions unless otherwise expressly provided 64
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in law, or unless the President exercises his authority under the Recess Appointments Clause. 88 15 Stat. 168 (1868). 89 1 Stat. 415 (1795). 90 12 Stat. 642, 646 (1863). 91 See Fisher, n.3, supra. at 5. 92 See 33 Cong. Globe 564-65 (1863). 93 S. Rep. No. 80, 37th Cong., 3d Sess. (1863). 94 33 Cong. Globe 565 (1863). 95 14 Stat. 430 (1867). 96 Id. 97 Id. at 431. 98 See Jonathan Turley, Senate Trials and Factional Disputes: Impeachment as a Madisonian Device, 40 Duke L.J. 1, 87-88 (1999). 99 16 Stat. 6 (1869). 100 24 Stat. 500 (1887). 101 272 U.S. 52, 176 (1926). 102 See Fisher, n.3, supra, at 6. 103 5 U.S.C. § 5503(a)(1)-(3). 104 H. Rep. No. 2646, 76th Cong., 3d Sess. 1 (1940). 105 Id. See also, 28 Comp. Gen. 30 (1948) 106 See S. Rep. No. 1380, 89th Cong., 2d Sess. 20, 105 (1966). 107 28 Comp. Gen. 30, 37 (1948); see also 41 Op. A.G.463, 473-75 (1960). 108 See, e.g., P.L. 108-447, Div. H, Sec. 609; 118 Stat. 3274. 109 Trish Turner, "Democrats Fight Sam Fox Nomination, Charge He Cannot Serve Without Pay," Fox News Corp., April 5, 2007, available at [http://www.foxnews.comistory/ 0,2933,264420,00.html]. 110 Government Accountability Office, Office of the General Counsel, II Principles of Federal Appropriations Law, 6-95, 3d Ed. (February 2006). 111 Id. at 95-96. 112 Id. at 102. 113 The GAO has relied upon this dynamic in determining that the voluntary services prohibition does not preclude the service of a recess appointee falling within the pay proscriptions codified at § 5503, even in instances where the compensation of the position in question is fixed by statute. Addressing the recess appointment of Sam Fox to serve as Ambassador to Belgium under circumstances triggering a § 5503 payment prohibition, the GAO noted that while the rate of compensation for such a position is set by statute, "[t]he Department of State may allow him to serve without compensation, despite the voluntary services prohibition of the Antideficiency Act, because Mr. Fox's service would not result in a coercive deficiency or a subsequent claim against the Government, which was the original justification behind the prohibition. Mr. Fox could not make such a claim because of the statutory bar of section 5503." Government Accountability Office, Recess Appointment of Sam Fox, B-309301 at 7-8 (June 8, 2007). The GAO further stated that "an alternative interpretation that would directly curtail the President's power to make a recess appointment to Mr. Fox would raise serious constitutional concerns." Id. at 8.
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464 F.Supp. 585, 596 (D.D.C. 1979). See Halstead, n.50, supra, at 11. 116 See, e.g., 15 U.S. Op. Off. Legal Counsel 91 (1991); 41 Op. A.G. 463, 472-80 (1960). 117 See Halstead, n.50, supra, at 8-11. 118 Evans, 387 F.3d at 1235. 119 See Halstead, n.50, supra, at 11 for additional consideration of this issue in the Article III context. 120 See Haynes, n.28, supra, at 772-73. 121 106 Cong. Rec. 18145 (1960). 122 106 Cong. Rec. 12761 (1960). 115
In: Congress of the U.S: Commitees, Rules and Procedures ISBN 978-1-60456-416-7 Editor: Sela G. Thomason © 2009 Nova Science Publishers, Inc.
Chapter 24
TERRITORIAL DELEGATES TO THE U.S. CONGRESS: CURRENT ISSUES AND HISTORICAL BACKGROUND* Betsy Palmer SUMMARY Territorial Delegates have served in the House since the late 1700s, representing territories that had not yet achieved statehood. In the 20th Century, the concept of Delegate grew to include representation of territories where the United States exercises some degree of control but which were not expected to become states. Currently, the U.S. insular areas of American Samoa, Guam, the Virgin Islands, and the federal municipality of the District of Columbia are each represented in Congress by a Delegate to the House of Representatives. The individual elected to represent Puerto Rico is called the Resident Commissioner instead of delegate. The Delegates and Resident Commissioner are the successors of Delegates from statehood-bound territories, who first took seats in the House in the late 1700s. Proposals offered in recent Congresses have sought to grant the Delegate from the District of Columbia voting rights on the floor of the House. Another proposal would expand territorial representation to include the Commonwealth of the Northern Mariana Islands. Floor action in the House and Senate on these bills could occur before the end of the 109th Congress. Early laws providing for territorial Delegates to Congress did not specify the duties, privileges, and obligations of these representatives. It was left to the House and the Delegates themselves to define their role. On January 13, 1795, the House took an important step toward establishing the functions of Delegates when it appointed James White, the first territorial representative, to membership on a select committee. In subsequent years, Delegates * This is an edited, excerpted and augmented edition of a CRS Report for Congress publication, Order Code RL32340, dated July 6, 2006.
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continued to serve on select committees as well as on conference committees. The first fixed assignment of a Delegate to standing committee occurred under a House rule of 1871, which gave Delegates places as additional members on two standing committees. In these committees, the Delegates exercised the same powers and privileges as in the House; that is, they could debate but not vote. In the 1970s, Delegates gained the right to be elected to standing committees and to exercise in those committees the same powers and privileges as Members of the House, including the right to vote. Today, Delegates enjoy powers, rights, and responsibilities identical, in most respects, to those of House Members from the states. Like these Members, Delegates can speak and introduce bills and resolutions on the House floor; and they can speak and vote in House committees. Delegates are not, however, full-fledged Members of Congress. Most significantly, they cannot vote on the House floor. This chapter builds on earlier reports on territorial delegates prepared by former colleagues, Andorra Bruno and the late William H. Tansill, and also benefitted from the production assistance of Daphne Bigger. Paul Rundquist was a major contributor to this chapter. The office of territorial delegate was created by the Continental Congress through the Northwest Ordinance of 1787. The statutory authority was extended under the Constitution and territorial Delegates have been a regular part of congressional operations since. Through most of the 19th century, territorial Delegates represented areas that were on the way to ultimate statehood. With U.S. acquisition of overseas territories beginning with the Spanish-American War, however, Congress created the post of Resident Commissioner to represent those areas which had, by treaty or law, a different relationship to the federal government. The office of Resident Commissioner was, however, used by the Congress to permit representation in the House in only two instances. The Philippine Islands, intended for ultimate independence, were represented by two Resident Commissioners until independence was declared in 1946. Puerto Rico, with commonwealth status and a treaty guaranteeing popular self determination, has been represented by a single Resident Commissioner since 1902. Beginning in the 1970s, Congress returned to the concept of Delegate to provide representation to territories and the District of Columbia. Currently, the U.S. insular areas of American Samoa, Guam, Puerto Rico, the Virgin Islands, and the federal municipality of the District of Columbia are each represented in Congress by a Delegate to the House of Representatives.1 The Delegates enjoy many, but not all, of the powers and privileges of House Members from the states. In the 109th Congress, several proposals are under consideration that would change the number of territorial Delegates in Congress and alter the legal authorities under which the post of territorial Delegate and that of Resident Commissioner serve.
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109TH CONGRESS LEGISLATIVE ISSUES Northern Mariana Islands Delegate During World War II, the United States took control of the Northern Mariana Islands from the Japanese. Following the war, the United Nations made the islands a trusteeship of the United States. In 1975, the United States and representatives of the islands reached an agreement, known as the "Covenant to Establish A Commonwealth of the Northern Mariana Islands in Political Union with the United States of America," and in 1986 residents of the Northern Mariana Islands were granted U.S. citizenship. Under terms of the covenant, the Commonwealth makes its own laws. The Commonwealth of the Northern Mariana Islands (CNMI), pursuant to the covenant agreement with the United States incorporated into P.L. 94-241(48 U.S.C. 1801), currently elects a Resident Representative, which is different from the position of Resident Commissioner from Puerto Rico. The Resident Representative formally presents his credentials to the Department of State and is the representative of the CMNI government to the various governmental departments in Washington concerned with Northern Mariana Islands issues, primarily the Department of the Interior. Currently, the Resident Representative has no official status in Congress, although he has frequently testified before congressional committees. Representation for CMNI in Congress was not discussed in the Covenant between the United States and the commonwealth in 1975. In 1986, a report to the Reagan Administration from a group known as The Commission on Federal Laws, called for granting the Northern Mariana Islands non-voting representation in the House, though no action was taken on this recommendation at that time.2
Delegate Proposals in Previous Congresses When the United States and the Mariana Islands agreed to the covenant of association, it was thought that the Mariana Islands lacked sufficient population to warrant a congressional Delegate. Since then, as the population has grown, Members of the House have debated whether to create a new position of non-voting delegate for the Commonwealth of the Northern Mariana Islands. Bills to authorize the creation of such a post have been introduced regularly in the House since 1994, but such measures usually have not been acted upon. Prior to the 108th Congress, the most recent committee action occurred in 1996, when the House Resources Committee reported H.R. 4067 (104th Congress, second session). Introduced by Representative Elton Gallegly, the bill provided for the election of a Delegate from the Northern Mariana Islands for the congressional term beginning in 1999 (106th Congress). The committee approved H.R. 4067 by voice vote on September 18, 1996. Four Members (Representatives Wes Cooley, Helen Chenoweth, Jack Metcalf, and Joel Hefley), however, later asked that the committee's report reflect their opposition. A fifth committee member, Representative George Miller, filed a formal written dissent. The measure was reported to the House on September 27, 1996. No further action occurred. The Resources Committee report noted that "NMI is the last and only U.S. territory with a permanent population that has no voice [in Congress]." The report continued:
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Betsy Palmer The small population of NMI was cited by the Marianas Political Status Commission, which negotiated the Covenant for the islands, as the reason NMI was unable to obtain a nonvoting delegate in the Covenant despite the backing of the executive branch of the Federal Government. NMI population of 15,000 (1970 Census) was considerably less at that time than the populations of Guam (86,926) and the Virgin Islands (63,200) had been when those territories were granted nonvoting delegates in 1972. Two years after approving the Covenant without a provision for an NMI delegate, however, Congress granted a delegate to American Samoa with a resident population of 27,000, most of whom were not U.S. citizens. Today, with a U.S. citizen population of 27,512 and a total population of 59,913, NMI is clearly within the threshold of population established by precedents both historical and contemporary.3
In opposing the committee's recommendation, Representative Miller argued that the Resources Committee had given little formal consideration to the proposal, not even holding a hearing or Member briefing on H.R. 4067 before the markup. Representative Miller further charged that there were long-standing labor law abuses in CNMI, particularly with regard to working conditions that were unsafe or abusive and wage rates substantially below those found among the States of the United States or in neighboring Guam. Representative Miller urged that reform of labor conditions be a pre-condition for authorizing a Delegate for CNMI. This nation has a long history of requiring those who wish representation to change behavior such as polygamy or slavery, behaviors which are contrary to the beliefs and ethics of this nation as a whole. I recognize that some assert that we will have a better opportunity to pressure CNMI into accepting the legal changes we seek if it is represented in the Congress... . Rather, I believe that only by sending a clear message of disapproval, by denying membership in the House of Representatives until sustained and substantive reforms are implemented, will this House demonstrate that change within the CNMI is required to meet the standard for equal participation in the Congress commensurate with that of other delegates.4
Delegate Proposals in the 108th Congress On September 29, 2004, the House Resources Committee reported by voice vote H.R. 5135, which was introduced by Representative Richard Pombo. The bill saw no further action in the 108th Congress. The bill would have established the position of non-voting Delegate from the Commonwealth of the Northern Mariana Islands, and it would have provided for the election of the first such Delegate in the 2006 election cycle. The bill required, in a manner that parallels the requirements for service as a Member of the House, that the Delegate from the Northern Marianas be at least 25 years old, a citizen of the United States for seven years, and a resident of the territory. Additional eligibility requirements stipulated that the delegate also be a "domicilary" of the Commonwealth, a qualified voter in the Northern Marianas, and, at the time of his or her election, not be a candidate for any other elected office. The bill saw no further action in the 108th Congress. The committee report specifically addressed concerns about labor abuses which caused Member opposition in past Congresses. The report said: Congressional influence, Administrative actions and local changes have resulted in reduced allegations of worker exploitation and human rights violations. The Committee supports the actions taken by Governor Juan Babauta, including labor law enforcement and improved coordination with the federal agencies that oversee the local immigration and labor practices.
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H.R. 5135 will provide for a better means for the CNMI to keep Congress abreast of its progress and request further assistance in areas of need to address their unique economic base.5
The markup was preceded by a February 25, 2004 hearing by the House Resources Committee entitled: "Examination of the Potential for a Delegate from the Commonwealth of the Northern Mariana Islands." Testifying before the committee were the Governor of CMNI, Juan N. Babauta; Pedro A. Tenorio, the elected Resident Representative of the CMNI to the United States; Joaquin G. Adriano, President of the Senate of CMNI; David B. Cohen, Deputy Assistant Secretary of the Interior for Insular Affairs; and Mrs. Ruth G. Van Cleve, former Director of the Office of Territories at the Interior Department. Mr. Cohen was accompanied by James J. Benedetto, Federal Ombudsman, Office of the Ombudsman of the Interior Department, who answered questions from Members. While making it clear that the Administration recognizes that it is the House's prerogative to decide its membership, Cohen said that "the Administration continues to support the general concept that the CNMI should be represented by a non-voting delegate to the U.S. House of Representatives."6 All three elected officials from the CNMI testified in support of the proposal. "The people of the Northern Marianas do have a fundamental right to have a voice in their own government," said Governor Babauta. "I urge you to introduce Delegate legislation and see it successfully through the legislative process."7 "The purpose of my testimony today is to respectfully request that Congress authorize a nonvoting Delegate position in Congress for the CNMI," said Tenorio. "Such legislation would extend democratic representation to American citizens in the commonwealth and affirm Congress' commitment to the democratic principles of our Republic."8 Cohen told the committee he believed the cost of an additional Delegate from CNMI would be about $1 1 million each year or the same as the costs for the Delegate from Guam. Those funds would come from the legislative branch appropriation. Representative George Miller discussed the concerns he had in 1996 and then said that he believed from the testimony delivered at the hearing that a "majority of these changes have been made." Miller said he continues "to have serious concerns" about the proposal to grant CNMI a Delegate, but felt it is "worth continuing the discussion." Legislatively, House measures proposing to establish the office of territorial Delegate are referred to the Committee on Resources, the successor to the earlier Committee on Territories and Committee on Insular Affairs that considered bills concerning delegates in the 19th and early part of the 20t centuries. (The only modern exception to this referral practice was the bill to establish the office of Delegate from the District of Columbia. This measure was reported from the former Committee on the District of Columbia, the duties of which are now performed by the Government Reform Committee).
Delegate Proposals in the 109th Congress On February 17, 2005, Representative Pombo again introduced legislation to provide a non-voting delegate for the Northern Mariana Islands (H.R. 873). The bill was ordered reported by the House Resources Committee on May 18, 2005, by unanimous consent. On June 8, 2005, the committee filed a written report on the bill (H.Rept. 109-110), addressing one concern that the population of the island was not sufficient to merit a non-voting delegate
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to the House. That report found that with a U.S. citizen population of "35,000 and a total population of 69,221, according to the 2000 Census, the CNMI is clearly within the threshold of population established by precedents both historic and contemporary."9 Further action in the House could take place later during the 109th Congress. Action by the Senate would be required for the bill to become law and for the Northern Marianas islands to receive a nonvoting delegate.
DC Delegate Rights and Additional House Seat Another issue under discussion in the 109th Congress is whether to grant the Delegate from the District of Columbia voting rights on the floor of the House and, if so, how it should be done. House Government Reform Chair Tom Davis introduced legislation (H.R. 5388)10 that would grant DC a full-fledged Member of the House of Representatives, one who would be able to vote on the House floor. The bill also would create a new House seat for another state, most likely Utah, which narrowly missed gaining such a position following the 2000 Census. Davis introduced similar legislation in the 108th Congress.11 Under Davis's plan, the District of Columbia would be considered a congressional district for the purpose of electing a Member to the House. That Member would have the same rights as other Members, including the right to vote on the House floor. Regardless of the population of the District, it would be limited to one representative in the House. The bill would not provide for representation for the District in the Senate. Also, an additional House Member would be added to the state delegation most qualified by population for an additional representative. That additional representative would be elected by a statewide ballot until the next reapportionment. The bill calls for the number of Members in the House to increase permanently to 437 Members. The House Committee on Government Reform approved the bill by a vote of 29-4 on May 18, 2006. The bill was also referred to the House Judiciary Committee. Press reports indicate that the chair of that committee has promised Davis that the Judiciary Committee will consider the bill. Some Members during the markup questioned whether the bill would violate the constitution because it would give voting rights to an individual who did not represent a state.12 The House, the Constitution says in Article 1, section 2, "shall be composed of Members chosen every second Year by the People of the several States." Other Members have proposed granting voting rights to DC residents in other ways. DC Delegate Eleanor Holmes Norton has also introduced legislation (H.R. 398) that would provide full voting representation to the citizens of the District by treating DC as a state, with a House Member and two Senators representing it in Congress. This bill was referred to the Judiciary Committee. Representatives Dana Rohrabacher has introduced legislation (H.R. 190) that would permit a House Member to represent the District of Columbia in exchange for a new Member from the state next in line for an additional Member, most likely Utah. The bill would explicitly direct that District of Columbia residents be counted as residents of the state of Maryland for purposes of federal elections. District residents would be eligible to vote for a Representative in Congress (the bill prohibits the division of the District of Columbia into separate Maryland congressional districts), the two Senators from the State of Maryland, and for President. Separate electoral votes for the District of Columbia would be ended, and the
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post of District of Columbia Delegate would be abolished. Representative Rohrabacher had introduced similar legislation in the 108th Congress.
Action in the 108th Congress On June 23, 2004, the Government Reform and Oversight Committee held a hearing on Chairman Davis' proposal. The committee heard testimony from Representatives Dana Rohrabacher and Ralph Regula, who also had introduced legislation to provide some form of voting representation to residents of the District of Columbia. DC Mayor Anthony Williams and several others also testified. Also in the 108th Congress, Representative Regula introduced legislation (H.R. 381) that would have returned most of the territory now associated with the current District of Columbia to Maryland13 and transformed the DC Delegate into a House Member from Maryland, but his bill would not have authorized another seat for Utah. The bill would have carved out a section of the District, called the National Capital Service Area, over which Congress would have retained legislative control. The Davis, Rohrabacher, and Regula bills were all referred to the House Judiciary Committee and the House Government Reform Committee. Under House Rule X, the Government Reform Committee has jurisdiction over issues relating to the District of Columbia, while the Judiciary Committee has jurisdiction over measures relating to the elections of Members to the House of Representatives and to the apportionment process. None of the measures saw action in the 108th Congress. Replacement of Delegates and the Resident Commissioner On March 3, 2005, the House passed H.R. 841, a measure sponsored by Representative F. James Sensenbrenner requiring states to hold expedited special elections to fill vacancies in the House of Representatives in the wake of a catastrophic event. The bill sets deadlines for primaries and special elections and would apply these provisions to territories with delegates or resident commissioners: the District of Columbia, the Commonwealth of Puerto Rico, American Samoa, Guam and the U.S. Virgin Islands. A similar bill passed the House in 2004, but that version did not include the territories in its language. The Senate took no action on that bill.
EVOLUTION OF TERRITORIAL DELEGATES Northwest Ordinance The office of Delegate — sometimes called "nonvoting Delegate" — dates to the late 1700s, when territories bound for statehood were granted congressional representation. The Northwest Ordinance of 1787, which was enacted under the Articles of Confederation in order to establish a government for the territory northwest of the Ohio River, provided for a territorial Delegate.14 Earlier, the Ordinance of 1784 had made provision for territorial representation in Congress, but it had never been put into effect.15 Following ratification of the U.S. Constitution, the first Congress reenacted the Northwest Ordinance.16 The ordinance specified that the government of the Northwest
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Territory would initially consist of a governor and other officials appointed by Congress. According to Section 9, once the free adult male population in the district17 reached 5,000, qualified voters would be able to elect representatives from their counties or townships to a house of representatives.18 This elected house together with an appointed legislative council would elect a Delegate to Congress, as stated in Section 12 of the Northwest Ordinance: As soon as a legislature shall be formed in the district, the Council and house assembled in one room, shall have authority by joint ballot to elect a Delegate to Congress, who shall have a seat in Congress, with a right of debating, but not of voting, during this temporary Government.19
The Delegate's duties, privileges, and obligations, were otherwise left unspecified.
First Delegate In 1790, Congress extended all the privileges authorized in the Northwest Ordinance to the inhabitants of the territory south of the Ohio River and provided that "the government of the said territory south of the Ohio, shall be similar to that which is now exercised in the territory northwest of the Ohio."20 Four years later, the territory south of the river Ohio sent the first territorial Delegate to Congress. On November 11, 1794, James White presented his application to the House of Representatives for seating in the Third Congress.21 A House committee reported Mr. White's application favorably and submitted a resolution to admit him, touching off a wide-ranging discussion about the Delegate's proper role.22 An immediate question arose: Should the Delegate serve in the House or in the Senate? The Northwest Ordinance, which had been enacted by the unicameral Congress under the Articles of Confederation, had only specified a "seat in Congress." Some Members of Congress argued that the proper place for Delegate White was the Senate since his method of election, by the territorial legislature, was similar to that of Senators. Others suggested that perhaps Mr. White should sit in both chambers. Proposals for seeking Senate concurrence in the matter of admitting Delegate White and for confining his right of debate to territorial matters were dismissed. On November 18, 1794, the House approved the resolution to admit Delegate White to a nonvoting seat in that body.23 At least one Delegate has served in every Congress since, with the single exception of the Fifth Congress (1797-1799). Debate surrounding Delegate White's taking the oath further revealed House Members' various perceptions of his status. Some Members believed that Mr. White should be required to take the oath. Representative James Madison disagreed. He argued: The proper definition of Mr. White is to be found in the Laws and Rules of the Constitution. He is not a member of Congress, therefore, and so cannot be directed to take an oath, unless he chooses to do it voluntarily.24
Describing Delegate White as "no more than an Envoy to Congress," Representative William Smith maintained that it would be "very improper to call on this gentlemen to take such an oath." He characterized Mr. White as "not a Representative from, but an Officer
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deputed by the people of the Western Territory." In making the case that it "would be wrong to accept his oath," Representative Jonathan Dayton emphasized Mr. White's lack of voting power: "He is not a member. He cannot vote, which is the essential part." Representative Dayton compared Delegate White's influence in the House to that of a printer who "may be said to argue and influence, when he comes to this House, takes notes, and prints them in the newspapers."25 Ultimately, the House decided that since Mr. White was not a Member, he was not required to take the oath.26 At the same time, Congress, by law, granted Mr. White the same franking privileges and compensation as Members of the House.27 The White case established several precedents for the treatment of future Delegates. In 1802, Congress passed legislation that extended the franking privilege to, and provided for the compensation of, "any person admitted, or who may hereafter be admitted to take a seat in Congress, as a delegate."28 Like Mr. White, all future Delegates would sit in the House. This practice was written into law in 1817. The law stated, in part: ... such delegate shall be elected every second year, for the same term of two years for which members of the house of representatives of the United States are elected; and in that house each of the said delegates shall have a seat with a right of debating, but not of voting.29
Subsequent statutes authorizing Delegates specified service in the House. The decision not to administer the oath to Delegate White, however, did not become precedential. All future Delegates, beginning with the second, would take the oath.
Unincorporated Territories After the U.S. acquisition of overseas territories following the Spanish- American War, the Supreme Court put forth a new concept of territorial status. In a series of cases known as the Insular Cases (1901-1922), the Court distinguished between "incorporated" and "unincorporated" territories. Incorporated territories were considered integral parts of the United States, to which all relevant provisions of the U.S. Constitution applied. They were understood to be bound for eventual statehood. The newly acquired territories were considered unincorporated, however, and, as such, only the "fundamental" parts of the Constitution applied of their own force. The political status of unincorporated territories, the Court said, was a matter for Congress to determine by legislation.30 Congress did grant representation to two of the territories acquired from Spain — Puerto Rico and the Philippines. It did so, however, in a way that distinguished their situation from that of statehood-bound territories. Rather than authorizing Delegates, Congress provided for Resident Commissioners to the United States from Puerto Rico31 and the Philippines,32 who were to be entitled to "official recognition as such by all departments." According to Abraham Holtzman: [N]o reference to Congress or the House of Representatives was made in the authorizing statutes. Apparently, it was Congress's intent that the mandate of these representatives be broader than service in the U.S. legislature... . This suggests a role for resident commissioners
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The Resident Commissioners from Puerto Rico and the Philippines did not enjoy the same privileges as the nonvoting Delegates; initially, they were not even allowed on the House floor. In 1902 and 1908, respectively, the House of Representatives granted them the right to the floor.34 In 1904, the Puerto Rican Resident Commissioner was given the "same powers and privileges as to committee service and in the House as are possessed by Delegates" and was deemed "competent to serve on the Committee on Insular Affairs as an additional member."35 The Resident Commissioners from the Philippines, however, were never permitted to serve on standing committees. The posts of resident commissioners differed from those of delegates in other significant ways. Initially, the Philippines, owing to its substantially larger population and dispersed land mass, was authorized two Resident Commissioners who served for three-year terms. It was not until the Tydings-McDuffie Act of 1934, setting a timetable leading to the ultimate independence of the Philippines, that the second Resident Commissioner position was abolished. The Resident Commissioner from Puerto Rico was initially chosen for a two-year term, but Congress, at the initiative of the Puerto Rican government, later extended it to four years.36 The Delegates' ranks continued to grow with the authorization of congressional representation for the territories of Guam and the Virgin Islands in 1972.37 And through further amendment of House rule XII, "each Delegate to the House" was given the same committee assignment rights and committee powers and privileges as Members of the House.38 In 1978, the territory of American Samoa likewise gained the right to send a Delegate to the House. According to the authorizing statute: Until the Rules of the House of Representatives are amended to provide otherwise, the Delegate from American Samoa ... shall be entitled to whatever privileges and immunities that are, or hereinafter may be, granted to the nonvoting Delegate from the Territory of Guam.39
Delegates Rights and Responsibilities Since the first Delegate was sent to Congress, the House has struggled with the role Delegates should play in the House. Some Members, noting that the Constitution, in Article I, Section 2, requires that the House be made up of people "chosen every second year by the People of the several states," have expressed concerns that allowing Delegates to have the same rights and responsibilities as Members would be unconstitutional. Because Delegates, by definition, do not represent states, Members have on several occasions debated what rights they should exercise in the House. Evidence of this debate is the variation in the role Delegates have played in committees. For significant periods, Delegates were not appointed to standing committees, and could not vote during committee consideration of measures or matters even on committees where they were permitted to serve. Which committees Delegates could serve on and their rights on those committee became themes in Congress over the last 200 years.
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Currently, Delegates enjoy powers, rights, and responsibilities identical, in most respects, to those of House Members from the states. Delegates can speak and introduce bills and resolutions on the floor of the House and can speak and vote in House committees. Delegates are not, however, full-fledged Members of the House. They cannot vote on the House floor, whether the House is operating as the House, or as the Committee of the Whole House on the State of the Union, a parliamentary device used by the House to expedite the consideration of legislation. In addition, Delegates cannot offer a motion to reconsider a vote and are not counted for quorum purposes.
Committee Assignments and Voting The House began to define the functions of Delegates when, on January 13, 1795, it appointed Mr. White a member of a select committee to investigate better means of promulgating the laws of the United States.40 During several subsequent Congresses, the House continued the practice of allowing Delegates to serve on select committees. William Henry Harrison, the Second Delegate of the Northwest Territory, served on a number of select committees, some of which he had moved to create, that addressed issues such as public land laws and the judiciary in the territories.41 According to historians, in December 1799, Mr. Harrison became the first Delegate to chair a select committee.42 An active participant in House debates, Delegate Harrison likewise served as a House conferee in disputes with the Senate.43 The first regular assignment of Delegates to standing committee duty occurred under a House rule adopted in December 1871. The rule directed the Speaker of the House to appoint a Delegate as an additional member of the Committee on the Territories and to appoint the DC Delegate as an additional member of the Committee for the District of Columbia.44 Additional committee assignments were authorized in 1876, 1880, and 1887.45 Describing the concurrent development of the Delegates' non-legislative role, Earl Pomeroy wrote: The territorial delegate increased in stature appreciably between 1861 and 1890. Without the formal powers of a congressman, he acquired more of a congressman's influence and general functions. He was disseminator of information, lobbyist, agent of territorial officers, of the territorial legislature, and of his constituency, self-constituted dispenser of patronage. He interceded at times in almost every process of control over the territories, and generally no one challenged his right to intercede.46
Along with the right to belong to a standing committee, the House also debated what rights Delegates once on the committees could exercise. Historians differ on whether delegates were allowed to vote in committees prior to the early 1970s. One account states that as "additional members" of standing committees from 1871 through 1971, Delegates did not have the right to vote in committee.47 Some evidence suggests that Delegates were allowed to vote in committee in and around 1841. According to a September 3, 1841, report of the Committee of Elections: With the single exception of voting, the Delegate enjoys every other privilege and exercises every other right of a Representative. He can act as a member of a standing or special committee and vote on the business before said committees, and he may thus exercise an important influence on those initiatory proceedings by which business is prepared for the
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Even if the Delegates at one point had that right, they had lost it by the late 1880s. On February 23, 1884, a proposition was made in the House that Delegates be allowed to vote in committee. The proposition was referred to the Committee on Rules, but no action was taken.49 The right of Delegates to vote in committee resurfaced as an issue in the 1930s. After a lengthy investigation, a House committee reported that neither the Constitution nor any statutes supported such a committee vote. Although a House rule provided for the appointment of territorial Delegates as additional members on certain committees, the report noted, "the House could not elect to one of its standing committees a person not a Member of the House." According to the report: The designation "additional member" applied to a Delegate clearly indicates the character of the assignment. Expressly the Delegate shall exercise in the committee ... the same powers and privileges as in the House, to wit, the "right of debating, but not the right of voting."50
In the 1970s, the system of territorial representation in Congress underwent significant change as more territories were granted Delegates and as Delegates were given increased powers.51 For 11 years following the admission of Hawaii to the Union in 1959, the Resident Commissioner from Puerto Rico had been the only territorial representative in Congress. Then, in 1970, the District of Columbia was authorized to elect a Delegate.52 That same year, Congress enacted the Legislative Reorganization Act, which contained a provision to amend the House rule on Delegates (rule X11) to read: The Resident Commissioner to the United States from Puerto Rico shall be elected to serve on standing committees in the same manner as Members of the House and shall possess in such committees the same powers and privileges as the other Members.53
The provision was contained in a floor amendment offered by Puerto Rico's Resident Commissioner Jorge Cordova. My amendment would abolish this privilege [service on a committee as an "additional member"]. It would provide for the election of the Resident Commissioner to standing committees in the same manner as Members of the House are elected. This would mean, in effect, that the Resident Commissioner may be fortunate to secure election to one of the three committees on which he now serves. But my amendment would also provide that the Resident Commissioner have the same rights in committee as other members, which means, of course, that he would have the right to vote within the committee.
Representative Thomas S. Foley supported the amendment claiming that the grant of voting rights in committee to delegates was within the power of the House. The committees of the House of Representatives are creatures of the House of Representatives. They can be extinguished at will and created at will. It does not even require concurrence of the other body when we take such an action. Depriving members of the right
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to vote in a committee is fully within the power of the House, by abolishing the committee. Giving them additional rights to vote is within the power of the House by creating a new committee... . Nothing that the Resident Commissioner could do in a committee vote could become a final decision unless a majority of the elected Members of Congress supported his position. However, in the standing committee itself I think that the Member from Puerto Rico should have a vote. I think the House has the constitutional authority to give him a vote in that limited area.
The amendment was opposed by Representative B.F. Sisk, the floor manager of the bill and a senior member of the House Rules Committee. Sisk asked rhetorically whether the Cordova amendment "would be interpreted so that he would be entitled to vote in the Committee of the Whole House on the State of the Union." In response, sometime later, Cordova observed that "The amendment which I have offered refers expressly to the standing committees. I believe the Committee of the Whole House is not a standing committee." The Cordova amendment was agreed to by voice vote.54 In 1971, the House rewrote rule XII, according the rights in committee set forth in the Legislative Reorganization Act to the Resident Commissioner from Puerto Rico as well as to the newly authorized DC Delegate.55
Committee of the Whole Voting Rights During the 103rd Congress, Delegates were allowed to vote in the Committee of the Whole, a development that became the focus of intense partisan controversy. In January 1993, the Democratic majority proposed to amend House Rule XII to permit such Delegate voting. In the event that a matter before the Committee of the Whole was decided by the margin of the Delegates' votes, however, another amendment (to House Rule XXBI) provided for an automatic re-vote in the full House, where Delegates could not participate.56 Supporters of the rule XII change portrayed it as a logical extension of the Delegates' right to vote in committee. A group of Republican House Members filed a lawsuit challenging the amendment to rule XII. They argued that the rule change violated Article I of the Constitution by granting legislative power to Delegates who were not "Members [of the House of Representatives] chosen every second Year by the People of the several States."57 They took issue with the characterization of the Committee of the Whole as a committee and maintained, instead, that it was tantamount to the full House. In their complaint, the plaintiffs stated: [N]on-member voting in the Committee of the Whole impairs and dilutes the constitutional rights of the plaintiff-Representatives, both as Members of the House and as voters who enjoy the right to full, fair and proportionate representation in the House of Representatives.58
They further alleged that the House did not have the authority to unilaterally expand the powers of the Delegates. The House defendants59 countered that the House of Representatives was constitutionally empowered to "determine the Rules of its Proceedings."60 They argued that the Committee of the Whole, like other congressional committees, was an advisory body and was not subject to Article I requirements. They rejected the plaintiffs' contention that the Committee of the Whole effectively controlled action in the House, citing both the preliminary nature of its
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proceedings and the provision for an automatic re-vote in cases in which Delegate votes were decisive.61 In March 1993, Judge Harold H. Greene of the U.S. District Court for the District of Columbia upheld the changes to the House rules. As his opinion made clear, however, he did so only because of the automatic re-vote provision. "If the only action of the House of Representatives had been to grant to the Delegates from the District of Columbia, Guam, Virgin Islands, and American Samoa, and the Resident Commissioner from Puerto Rico the authority to vote in the Committee of the Whole," he wrote, "its action would have been plainly unconstitutional."62 His opinion further stated: [W]hile the action the House took on January 5, 1993 undoubtedly gave the Delegates greater stature and prestige both in Congress and in their home districts, it did not enhance their right to vote on legislation... . [B]y virtue of Rule XXBI they [the votes of the Delegates] are meaningless. It follows that the House action had no effect on legislative power, and that it did not violate Article I or any other provision of the Constitution.63
In January 1994, the U.S. Court of Appeals for the District of Columbia Circuit upheld the constitutionality of the House rule changes.64 In January 1995, at the start of the 104th Congress, the House of Representatives, under a Republican majority, amended Rule XII to prohibit Delegate voting in the Committee of the Whole.65 Table 1. Territories Represented in Congress Territory Northwest of the river Ohio South of the river Ohio Mississippi Indiana Orleans Michigan Illinois Missouri Alabama Arkansas Florida Wisconsin Iowa Oregon Minnesota New Mexico Utah Washington Nebraska Kansas
Statute 1 Stat. 50 1 Stat. 123 1 Stat. 549 2 Stat. 58 2 Stat. 322 2 Stat. 309 2 Stat. 514 2 Stat. 743 3 Stat. 371 3 Stat. 493 3 Stat. 654 5 Stat. 10 5 Stat. 10 9 Stat. 323 9 Stat. 403 9 Stat. 446 9 Stat. 453 10 Stat. 172 10 Stat. 277 10 Stat. 283
Year 1789' 1790 1798 1800 1805 1805 1809 1812 1817 1819 1822 1838 1838 1848 1849 1850 1850 1853 1854 1854
Territorial Delegates to the U.S. Congress Colorado Nevada Dakota Arizona Idaho Montana Wyoming District of Columbia Oklahoma Puerto Rico Hawaii Philippine Islands Alaska District of Columbia Virgin Islands Guam American Samoa
12 Stat. 172 12 Stat. 209 12 Stat. 239 12 Stat. 664 12 Stat. 808 13 Stat. 853 15 Stat. 178 16 Stat. 426 26 Stat. 81 31 Stat. 86 31 Stat. 141 32 Stat. 694 34 Stat. 169 84 Stat. 848 86 Stat. 118 86 Stat. 118 92 Stat. 2078
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1861 1861 1861 1863 1863 1864 1868 1871 1890 1900 1900 1902 1906 1970 1972 1972 1978
Source: "Nonvoting Samoan Delegate to House," Congressional Record, vol. 124 (Oct. 3, 1978), p. 33287. a The measure of the First Congress re-enacted with changes necessitated through the ratification of the Constitution the provisions of the Northwest Ordinance of 1787, enacted by the Articles of Confederation Congress.
ENDNOTES 1
In the case of Puerto Rico, the congressional representative is called a Resident Commissioner. Today, the offices of Resident Commissioner and Delegate are essentially the same, though the Resident Commissioner is elected to a four-year term, and Delegates are elected to two-year terms. The term "Delegates," as used in this report, includes the Puerto Rican Resident Commissioner, unless otherwise indicated. 2 U.S. Congress, House Committee on Resources, Northern Mariana Islands Delegate Act, report to accompany H.R. 4067, 104th Cong., 2nd sess., H.Rept. 104-856 (Washington: GPO, 1996), p. 4. 3 H.Rept. 104-856, pp. 2-4. 4 H.Rept. 104-856, pp. 10-11. 5 U.S. Congress, House Committee on Resources, Northern Mariana Islands Delegate Act, report to accompany H.R. 5135, 108th Cong., 2nd sess., H.Rept. 108-761 (Washington: GPO, 2004), p. 2. 6 Testimony of David Cohen, in U.S. Congress, House Resources Committee, An Examination of the Potential for a Delegate from the Commonwealth of the Northern Mariana Islands, hearings, 108th Cong., 2nd sess., Feb. 25, 2004. The testimony is available online from the committee website at [http://resourcescommittee.house.gov/ archives/108 iful1/02_25_04.htm], visited June 13, 2005.
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Testimony of Juan Babauta, in U.S. Congress, House Resources Committee, An Examination of the Potential for a Delegate... . The testimony is available online from the committee website, [http://resourcescommittee.house.goviarchives/108/ful1/ 02_25_04.htm], visited June 13, 2005. 8 Testimony of Pedro A. Tenorio in U.S. Congress, House Resources Committee, An Examination of the Potential for a Delegate... . The testimony is available online from the committee website, [http://resourcescommittee.house.goviarchives/108/ful1/02_25_04. htm], visited June 13, 2005. 9 U.S. Congress, House Committee on Resources, Northern Mariana Islands Delegate Act, report to accompany H.R. 873, 109th Cong., Pt sess., H.Rept. 109-110 (Washington: GPO, 2005), p. 3. 10 Davis also introduced a similar bill earlier in the 109th Congress, H.R. 2043. That bill had the same intent as H.R. 5388, though its provisions are slightly different. The biggest differences is that H.R. 5388 calls for a permanent increase in the size of the House to 437 from 435, the earlier bill, H.R. 2043, would have allowed the size of the House to increase by two Members only until the next census, after which the size of the House would revert to 435 voting Members. 11 Jennifer Yachnin, "House Trio to Offer D.C. Voting Rights Bills in 2004," Roll Call, Jan. 20, 2004, p. 3. For a discussion of the census enumeration issues affecting North Carolina and Utah, see CRS Report RS21638, House Apportionment: Could Census Corrections Shift a House Seat?, by David Huckabee. 12 Mary Beth Sheridan, "House Panel Endorses D.C. Vote; Bill Needs Approval from Judiciary Committee," Washington Post, May 19, 2006, B 1; Isaiah J. Poole, "House Plan to Give the District a Vote Clears Hurdle," CQ Weekly, May 22, 2006, p. 1418. 13 In the 1830s, a portion of the District of Columbia, formerly part of Virginia, was retroceded to it. 14 "The Northwest Ordinance: An Annotated Text," in Robert M. Taylor, Jr., ed., The Northwest Ordinance, 1787 (Indianapolis: Indiana Historical Society, 1987), pp. 51-53. 15 Julian P. Boyd, ed. and others, The Papers of Thomas Jefferson, 30 vols. (Princeton: Princeton University Press, 1950-2000), vol. 6, p. 615. Still earlier references to territorial representation in Congress can be found in a 1776 letter from Silas Deane to the Select Committee of Congress and in Thomas Paine' s Public Good (1780). See Hulbert, Archer Butler, ed., Ohio in the Time of the Confederation (Marietta, Ohio: Marietta Historical Commission, 1918), pp. 1, 3, 6, 12. 16 Act of Aug. 7, 1789, ch. 8, 1 Stat. 50-53. The act made some modifications to the original ordinance in order to adapt it to the Constitution. 17 The ordinance established the territory as one district but allowed for subdivision in the future, as expedient. "The Northwest Ordinance: An Annotated Text," p. 31. 18 "The Northwest Ordinance: An Annotated Text", pp. 36-51. 19 Ibid., p. 51. 20 Act of May 26, 1790, ch. 14, 1 Stat. 123. 21 Annals of Congress, vol. 4, 3rd Cong., 2nd sess., Nov. 11, 1794, p. 873. 22 S. Brown, "The Territorial Delegate to Congress," in The Territorial Delegate to Congress and Other Essays (Ann Arbor, Mich.: George Wahr Publishing Company, 1950), pp. 4-5. 23 Annals of Congress, vol. 4, 3rd Cong., 2nd sess., Nov. 18, 1794, pp. 884-889. 24 Ibid., p. 889.
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Ibid., pp. 889-890. Ibid., pp. 890. 27 Act of Dec. 3, 1794, ch. 2, 1 Stat. 403-404. 28 Act of Feb. 18, 1802, ch. 5, 2 Stat. 130-131. 29 Act of Mar. 3, 1817, ch. 42, 3 Stat. 363. 30 Frederick R. Coudert, "The Evolution of the Doctrine of Territorial Incorporation." Columbia Law Review, vol. 26 (Nov. 1926), pp. 823-850. 31 Act of Apr. 12, 1900, ch. 191, 31 Stat. 77, 86. 32 Act of July 1, 1902, ch. 1369, 32 Stat. 691, 694. 33 Abraham Holtzman, "Empire and Representation: The U.S. Congress," Legislative Studies Quarterly, vol. 11 (May 1986), p. 253. 34 Congressional Record, vol. 35 (June 28, 1902), p. 7608; Congressional Record, vol. 42 (Feb. 4, 1908), p. 1540. 35 Congressional Record, vol. 38 (Feb. 2, 1904), pp. 1523, 1529. Until 1921, the Puerto Rican Resident Commissioner, like the other Delegates, served a two-year term. Effective that year, however, the Resident Commissioner's term was extended to four years. Act of Mar. 2, 1917, ch. 145, 39 Stat. 951, 963. 36 CRS Report RL31856, Resident Commissioner from Puerto Rico, by Paul S. Rundquist. The report also briefly discusses the Philippine resident commissioners. 37 P.L. 92-271, Apr. 10, 1972, 86 Stat. 118. 38 Congressional Record, vol. 119 (Jan. 3, 1973), pp. 17, 27. 39 P.L. 95-556, Oct. 31, 1978, 92 Stat. 2078-2079. 40 Annals of Congress, vol. 4, 3rd Cong., 2nd sess., Jan. 13, 1795, p. 1082. 41 See, for example, Annals of Congress, vol. 10, 6th Cong., 1st sess., Dec. 1799-Apr. 1800, pp. 193, 197-198, 209-210, 477, 510, 513, 660. 42 There is disagreement, however, over which select committee Delegate Harrison was first appointed to chair. See Dorothy Burne Goebel, William Henry Harrison (Philadelphia: Porcupine Press, 1974) (Reprint of the 1926 edition), pp. 44, 49; and Jo Tice Bloom. "Early Delegates in the House of Representatives," in The American Territorial System (Athens, Ohio: Ohio University Press, 1973), p. 67. 43 U.S. Congress, House, The Journal of the House of Representatives, vol. 4, 6th Cong., St sess. (Wilmington, Del.: Michael Glazier, Inc., 1977), pp. 187, 372. 44 Globe, vol. 102, 42nd Cong., 2nd sess., Dec. 13, 1871, pp. 117-118. 45 Hinds' Precedents, vol. 2, Sec. 1297, p. 864. In committee, the Delegates had the same powers and privileges as on the floor of the House (and thus, could not vote), and could make any motion except to reconsider (which presumes that the mover had previously voted). 46 Earl S. Pomeroy, The Territories and the United States, 1861-1890 (Philadelphia: University of Pennsylvania Press, 1947), p. 80. 47 Holtzman, "Empire and Representation: The U.S. Congress," p. 261. 48 U.S. Congress, House Committee on Elections, David Levy, 27th Cong., 1st sess., H.Rept. 10 (Sept 3, 1841), p. 5. Quoted in Asher C. Hinds, Hinds' Precedents of the House of Representatives of the United States, 5 vols (Washington: GPO, 1907), vol. 2, p. 865, (Hereafter cited as Hinds' Precedents). This report excerpt raises the question of whether Delegates served on standing committees around, or prior to, 1841. According to Abraham Holtzman, they did not: "As standing committees began to emerge in the late 26
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eighteenth and early nineteenth centuries, however, the House adopted a practice of excluding territorial representatives from these important centers of decision making " Holtzman, "Empire and Representation: The U.S. Congress," p. 257. Similarly, Jo Tice Bloom writes: "During the early period [1794-1820], delegates were never barred from serving on standing committees by any action of the House. They probably did not serve on these committees for the simple reason that a delegate was never appointed and, therefore, the tradition never began." Bloom, "Early Delegates in the House of Representatives," p. 67. Nevertheless, the Court in Michel v Anderson (817 F.Supp. 123, note 22) was persuaded that delegates had voted in committee during the early 19th Century, and only agreed to relinquish that right in return for guaranteed seats on committees dealing with territorial affairs. 49 Precedents, vol. 2, Sec. 1300, p. 865. 50 Congressional Record, vol. 75 (Jan. 18, 1932), pp. 2163-2164. 51 See Table 1. 52 P.L. 91-405, Sept. 22, 1970, 84 Stat. 845, 848. Congress had previously authorized a DC Delegate (Act of Feb. 21, 1871, ch. 62, 16 Stat. 419, 426), but soon afterward revoked that provision (Act of June 20, 1874, ch. 337, 18 Stat. 116). 53 P.L. 91-510, Oct. 26, 1970, 84 Stat. 1140, 1161. 54 The full debate on the Cordova amendment can be found in Congressional Record, vol. 116 (Sept. 15, 1970), pp. 31848-31852. 55 Congressional Record, vol. 117 (Jan. 21-22, 1971), pp. 14, 143-144. Rule XII, as amended, also stipulated that the DC Delegate serve on the Committee on the District of Columbia. 56 Congressional Record, vol. 139 (Jan. 5, 1993), pp. 50-99. ' U.S. Constitution. Art. I, Sec. 2. 58 Michel v. Anderson, No. 93-0039 (HHG), Complaint for Declaratory and Injunctive Relief, at 4 (D.D.C. Jan. 7, 1993). 59 The House defendants were the Clerk of the House and the five Delegates. U.S. Constitution. Art. I, Sec. 5. 61 Michel v. Anderson, No. 93-0039 (HHG), House Defendants' Memorandum in Support of Motion to Dismiss and in Opposition to Preliminary Injunction (D.D.C. Feb. 2, 1993). 62 . Anderson, 817 F.Supp. 126, 147 (D.D.C. 1993). 63 Michel, 817 F.Supp. at 147-148. 64 Michel v. Anderson, 14 F.3d 623 (D.C.Cir. 1994). 65 Congressional Record, vol. 141 (Jan. 4, 1995), pp. 447-530.
In: Congress of the U.S: Commitees, Rules and Procedures ISBN 978-1-60456-416-7 Editor: Sela G. Thomason © 2009 Nova Science Publishers, Inc.
Chapter 25
SUBSTANTIALITY OF AN AGENCY'S LEGAL AND POLICY OBJECTIONS IN REFUSING TO COMPLY WITH SUBPOENAS FOR DOCUMENTS AND * THE TESTIMONY OF AGENCY PERSONNEL Morton Rosenberg MEMORANDUM TO: FROM: SUBJECT:
Honorable Charles Grassley, Chairman, Senate Committee on Finance Morton Rosenberg Specialist in American Public Law American Law Division Substantiality of An Agency's Legal and Policy Objections In Refusing to Comply with Subpoenas for Documents and the Testimony of Agency Personnel
Pursuant to your Committee's authority under the Standing Rules of the Senate, Rule XXV, 1.(i), and its rules of procedure, 151 Cong. Rec. S425 (daily ed. Jan. 25, 2005), you initiated an investigation of the Food and Drug Administration's (FDA) approval and postmarket surveillance of Ketek, an antibiotic manufactured by Aventis Pharmaceuticals (Aventis) for the treatment of community-acquired pneumonia, sinusitis, and acute exacerbation of chronic bronchitis. Your inquiry was spurred by substantial allegations that the FDA approved Ketek despite problems about the drug's safety and efficacy, and, the allegations continue, with full knowledge that some of the clinical data contained in a safety study conducted by Aventis (Study 3014) supporting its approval, was fraudulent, in whole or part, and that this information was withheld at the direction of FDA officials from an FDA advisory committee tasked with recommending the drug's approval or disapproval. Since *
This is an edited, excerpted and augmented edition of a CRS Memorandum publication, dated June 13, 2006.
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April, 2006 you have been seeking pertinent documents and interviews with agency personnel with direct knowledge of who knew what and when. You advise that your staff s efforts to obtain documents critical to the inquiry have been stymied and that line employees they sought for interviews have been directed not to speak to anyone on the Committee. On May 19, 2006, the Committee issued two subpoenas, one to Health and Human Services (HHS) Department Secretary Michael 0. Leavitt for documents related to Ketek; and a second to compel the personal appearance of Special Agent Robert West, one of the employees prevented from being interviewed by Committee staff. The document subpoena was specifically directed at relevant Ketek materials in FDA's office of Criminal Investigation, the Division of Scientific Investigations, the Office of the Commissioner of FDA, and the Office of Regulatory Affairs. On May 30, 2006, the HHS Assistant Secretary for Legislation informed you that the Secretary would not comply with two broad categories of materials covered by the document subpoena, and would not allow Special Agent West to testify. More particularly, the Assistant Secretary stated that all documents "that reflect the Agency's ongoing deliberations about pending matters," would be withheld because "the Department has a confidentiality interest in materials that reflect its ongoing deliberative process," citing a Department of Justice Office of Legal Counsel (OLC) opinion, which, in turn cites other OLC opinions but no pertinent judicial rulings. The HHS letter and the OLC opinions rest on the notion that revelations of such internal deliberations would have a "chilling effect" on employees and their "free and candid flow of ideas and recommendations would be jeopardized." Also to be withheld are documents from components of the FDA responsible for conducting investigations regarding compliance with FDA statutes and regulations, including the Office of Criminal Investigation (OCI), the Division of Scientific Investigations (DSI) and the Office of Regulatory Affairs (ORA). Here it is claimed that any disclosure of information in open, ongoing investigations (as opposed to a closed matters, which may be disclosed) "poses an inherent threat to the Executive Branch's enforcement and litigation functions," relying again on OLC opinions that assert that such disclosures to Congress would be perceived by the public and the courts as an exercise of "undue political and congressional influence over enforcement decisions" as well providing a "road map" of ongoing work that could undermine and prejudice such investigations. The OLC opinions cite other OLC and Attorney General opinions and their "consistent" assertion of this position as authority. Finally, the agency's direction to the Special Agent not to comply with the testimonial subpoena is supported on the ground that it would undermine its ability "to ensure that its agents can exercise the independent judgment essential to the integrity of law enforcement and prosecution functions and to public confidence in their decisions." Rather, it is suggested that it is more appropriate that the Committee question supervisors selected by the agency which will satisfy the Committee's oversight responsibilities "without undermining the independence of line agents, without raising the appearance of political interference in investigational and prosecutorial decisions, and without compromising potentially successful prosecutions." The HITS letter concludes with statement that it has "consulted with the Department of Justice and understands this statement to be consistent with longstanding Executive Branch assertions of interest." Conducted at your request, our review of the historical experience and legal rulings pertinent to access to information regarding the law enforcement activities of executive agencies indicates that claims exactly like those asserted here—prosecutorial deliberative
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process, confidential communications, and an agency's prerogative to determine who will be interviewed or testify before a jurisdictional committee, have been consistently rejected and compliance has been forthcoming. Such assertions have predominately emanated from the Department of Justice, the principal executive law enforcement agency, but have been raised by other departments and agencies in the past, including HITS. In the last 80 years Congress has consistently sought and obtained deliberative prosecutorial memoranda, and the testimony of line attorneys, FBI field agents and other subordinate agency employees regarding the conduct of open and closed cases in the course of innumerable investigations of Department of Justice (DOJ) activities. It appears that the fact that an agency, such as the Justice Department or any other agency exercising law enforcement authority, has determined for its own internal purposes that a particular item should not be disclosed, or that the information sought should come from one agency source rather than another, does not prevent either House of Congress, or its committees or subcommittees, from obtaining and publishing information it considers essential for the proper performance of its constitutional functions. We are aware of no court precedent that imposes a threshold burden on committees to demonstrate, for example, a "substantial reason to believe wrongdoing occurred" before they may seek disclosure with respect to the conduct of specific open and closed criminal and civil cases. Indeed, the case law is quite to the contrary. An inquiring committee need only show that the information sought is within the broad subject matter of its authorized jurisdiction, is in aid of a legitimate legislative function, and is pertinent to the area of concern. There has been no claim by HHS of a lack of jurisdiction of your committee, or that your inquiry is for an improper legislative purpose, or that testimony of the subpoenaed agent is not pertinent to the investigation. Our discussion will proceed as follows. We will briefly review the legal basis for investigative oversight and then describe several prominent illustrative instances of congressional oversight, principally using examples involving DOJ, that reflect the milestones in the establishment of oversight prerogatives vis- a- vis all executive departments and agencies. In light of this history, and the case law developed in conjunction with these proceedings, we assess the efficacy of the HHS claims.
The Legal Basis for Congressional Oversight Numerous Supreme Court precedents establish and support a broad and encompassing power in the Congress to engage in oversight and investigation that reaches all sources of information that enable it to carry out its legislative function. In the absence of a countervailing constitutional privilege or a self-imposed statutory restriction upon their authority, Congress and its committees have virtually plenary power to compel information needed to discharge their legislative function from executive agencies, private persons and organizations, and within certain constraints, the information so obtained may be made public. Although there is no express provision of the Constitution that specifically authorizes Congress to conduct investigations and take testimony for the purposes of performing its legitimate function, numerous decisions of the Supreme Court have firmly established that the investigatory power of Congress is so essential to the legislative function as to be implicit in the general vesting of legislative power in Congress.1 Thus, in Eastland v. United States
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Servicemen's Fund, the Court explained that "[t]he scope of its power of inquiry ... is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution."2 In Watkins v. United States, the Court further described the breadth of the power of inquiry: "The power of the Congress to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statues."3 The Court did not limit the power of congressional inquiry to cases of "wrongdoing." It emphasized, however, that Congress' investigative power is at its peak when the subject is alleged waste, fraud, abuse, or maladministration within a government department. The investigative power, it stated, "comprehends probes into departments ofthe Federal Government to expose corruption, inefficiency, or waste."4 "[T]he first Congresses," it continued, held "inquiries dealing with suspected corruption or mismanagement of government officials5 and subsequently, in a series of decisions, "[t]he Court recognized the danger to effective and honest conduct of the Government if the legislative power to probe corruption in the Executive Branch were unduly hampered.6 Accordingly, the Court stated, it recognizes "the power of the Congress to inquire into and publicize corruption, maladministration, or inefficiencies in the agencies of Government.7 The breadth of a jurisdictional committee's investigative authority may be seen in the two seminal Supreme Court decisions emanating from the Teapot Dome inquiries of the mid1920's. As part of its investigation, the Senate select committee issued a subpoena for the testimony of Mally S. Daugherty, the brother of the Attorney General. After Daugherty failed to respond to the subpoena, the Senate sent its Deputy Sergeant at Arms to take him into custody and bring him before the Senate. Daugherty petitioned in federal court for a writ of habeas corpus arguing that the Senate in its investigation had exceeded its constitutional powers. The case ultimately reached the Supreme Court, where, in a landmark decision, McGrain v. Daugherty,8 the Court upheld the Senate's authority to investigate these charges concerning the Department: [T]he subject to be investigated was the administration of the Department of Justice - whether its functions were being properly discharged or were being neglected or misdirected, and particularly whether the Attorney General and his assistants were performing or neglecting their duties in respect of the institution and prosecution of proceedings to punish crimes and enforce appropriate remedies against the wrongdoers - specific instances of alleged neglect being recited. Plainly the subject was one on which legislation could be had and would be materially aided by the information which the investigation was calculated to elicit. This becomes manifest when it is reflected that the functions of the Department of Justice, the powers and duties of the Attorney General and the duties of his assistants, are all subject to congressional legislation, and that the department is maintained and its activities are carried on under such appropriations as in the judgment of Congress are needed from year to year.9
The Court thus underlined that the Department of Justice, like all other executive departments and agencies, is a creature of the Congress and subject to its plenary legislative and oversight authority. In another Teapot Dome case that reached the Supreme Court, Sinclair v. United States,10 a different witness at the congressional hearings refused to provide answers, and was prosecuted for contempt of Congress. The witness had noted that a lawsuit had been commenced between the government and the Mammoth Oil Company, and declared, "I shall
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reserve any evidence I may be able to give for those courts... and shall respectfully decline to answer any questions propounded by your committee.11 The Supreme Court upheld the witness' conviction for contempt of Congress. The Court considered and rejected in unequivocal terms the witness' contention that the pendency of lawsuits provided an excuse for withholding information. Neither the laws directing that such lawsuits be instituted, nor the lawsuits themselves, "operated to divest the Senate, or the committee, of power further to investigate the actual administration of the land laws."12 The Court further explained: "It may be conceded that Congress is without authority to compel disclosure for the purpose of aiding the prosecution of pending suits; but the authority of that body, directly or through its committees to require pertinent disclosures in aid of its own constitutional power is not abridged because the information sought to be elicited may also be of use in such suits."13
Illustrative Instances of Congressional Committees Obtaining Prosecutorial Deliberative Materials and the Testimony of Line Personnel The Teapot Dome scandal in the mid-1920's provided not only the model and indisputable authority for wideranging congressional inquiries. While the Senate Committee on Public Lands and Surveys focused on the actions of the Department of the Interior in leasing naval oil reserves, a Senate select committee was constituted to investigate "charges of misfeasance and nonfeasance in the Department of Justice"14 in failing to prosecute the malefactors in the Department of the Interior, as well as other cases.15 The select committee heard from scores of present and former attorneys and agents of the Department and its Bureau of Investigation, who offered detailed testimony about specific instances of the Department's failure to prosecute alleged meritorious cases. Not all of the cases upon which testimony was offered were closed, as one of the committee's goals in its questioning was to identify cases in which the statute of limitations had not run out and prosecution was still possible.16 The committee also obtained access to Department documentation, including prosecutorial memoranda on a wide range of matters. However, given the charges of widespread corruption in the Department and the imminent resignation of Attorney General Daugherty, it would appear that some of the documents furnished the committee early in the hearings may have been volunteered by the witnesses and not officially provided by the Department. Although Attorney General Daugherty had promised cooperation with the committee, and had agreed to provide access to at least the files of closed cases,17 such cooperation apparently had not been forthcoming.18 In two instances immediately following Daugherty's resignation, the committee was refused access to confidential Bureau of Investigation investigative reports pending the appointment of a new Attorney General who could advise the President about such production,19 though witnesses from the Department were permitted to testify about the investigations that were the subject of the investigative reports and even to read at the hearings from the investigative reports. With the appointment of the new Attorney General, Harlan F. Stone, the committee was granted broad access to Department files. Committee Chairman Smith Brookhard remarked that "[ Stone] is furnishing us with all the files we want, whereas the former Attorney General, Mr. Daugherty, refused nearly all that we asked.”20 For example, with the authorization of the new Attorney General, an accountant
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with the Department who had led an investigation of fraudulent sales of property by the Alien Property Custodian's office appeared and produced his confidential reports to the Bureau of Investigation. The reports described the factual findings from his investigation and his recommendations for further action, and included the names of companies and individuals suspected of making false claims. The Department had not acted on those recommendations, though the cases had not been closed.21 A similar investigative report, concerning an inquiry into the disappearance of large quantities of liquor under the control of the Department during the prior administration of President Harding, was also produced.22 As part of its investigation, the select committee issued a subpoena for the testimony of Mally S. Daugherty, the brother of the Attorney General. After Mally Daugherty failed to respond to the subpoena, the Senate sent its Deputy Sergeant at Arms to take him into custody and bring him before the Senate. Daugherty petitioned in federal court for a writ of habeas corpus arguing that the Senate in its investigation had exceeded its constitutional powers. The case ultimately reached the Supreme Court, where, as noted above, in a landmark decision, McGrain v. Daugherty,23 the Court upheld the Senate's authority to investigate these charges concerning the Department. One of the most prominent congressional investigations of the Department of Justice grew out of the highly charged confrontation at the end of the 97th Congress concerning the refusal of Environmental Protection Agency Administrator Ann Gorsuch Burford, under orders from the President, to comply with a House subcommittee subpoena requiring the production of documentation about EPA's enforcement of the hazardous waste cleanup legislation. This dispute culminated in the House of Representative's citation of Burford for contempt of Congress, the first head of an Executive Branch agency ever to have been so cited by a House of Congress. It also resulted in the filing of an unprecedented legal action by the Department, in the name of the United States, against the House of Representatives and a number of its officials to obtain a judicial declaration that Burford had acted lawfully in refusing to comply with the subpoena. Ultimately, the lawsuit was dismissed,24 the documents were provided to Congress, and the contempt citation was dropped. However, a number of questions about the role of the Department during the controversy remained: whether the Department, not EPA, had made the decision to persuade the President to assert executive privilege; whether the Department had directed the United States Attorney for the District of Columbia not to present the contempt certification of Burford to the grand jury for prosecution and had made the decision to sue the House; and, generally, whether there was a conflict of interest in the Department's simultaneously advising the President, representing Burford, investigating alleged Executive branch wrongdoing, and enforcing the congressional criminal contempt statute. These and related questions raised by the Department's actions were the subject of an investigation by the House Judiciary Committee beginning in early 1983. The committee issued a final report on its investigation in December 1985.25 Although the Judiciary Committee ultimately was able to obtain access to virtually all of the documentation and other information it sought from the Department, in many respects this investigation proved as contentious as the earlier EPA controversy from which it arose. In its final report, the committee concluded that: [T]he Department of Justice, through many of the same senior officials who were most involved in the EPA controversy, consciously prevented the Judiciary Committee from
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obtaining information in the Department's possession that was essential to the Committee's inquiry into the Department's role in that controversy. Most notably, the Department deliberately, and without advising the Committee, withheld a massive volume of vital handwritten notes and chronologies for over one year. These materials, which the Department knew came within the Committee's February 1983 document request, contained the bulk of the relevant documentary information about the Department's activities outlined in this report and provided a basis for many of the Committee's findings.26
Among the other abuses cited by the committee were the withholding of a number of other relevant documents until the committee had independently learned of their existence,27 as well as materially "false and misleading" testimony before the committee by the head of the Department's Office of Legal Counsel.28 The committee's initial request for documentation was contained in a February 1983 letter from its chairman, Peter Rodino, to Attorney General William French Smith. The committee requested the Department to "supply all documents prepared by or in the possession of the Department in any way relating to the withholding of documents that Congressional committees have subpoenaed from the EPA."29 The letter also specifically requested, among other things, a narrative description of the activities of each division or other unit of the Department relating to the withholding of the EPA materials, information about the Department's apparent conflict of interest in simultaneously advising the Executive Branch while being responsible for prosecuting the Burford contempt citation, and any instructions given by the Department to the United States Attorney for the District of Columbia not to present the Burford contempt to the grand jury. At first the Department provided only publicly available documents in response to this and other document requests of the committee.30 However, after a series of meetings between committee staff and senior Department officials, an agreement was reached whereby committee staff were permitted to review the materials responsive to these requests at the Department to determine which documents the committee would need for its inquiry.31 Committee staff reviewed thousands of documents from the Land and Natural Resources Division, the Civil Division, the Office of Legal Counsel, the Office of Legislative Affairs, the Office of Public Affairs, and the offices of the Attorney General, the Deputy Attorney General, and the Solicitor Genera1.32 In July 1983, the committee chairman wrote to the Attorney General requesting copies of 105 documents that committee staff had identified in its review as particularly important to the committee's inquiry.33 By May 1984, only a few of those documents had been provided to the committee, and the chairman again wrote to the Attorney General requesting the Department's cooperation in the investigation. In that letter, the chairman advised the Attorney General that the committee's preliminary investigation had raised serious questions of misconduct, including potential criminal misconduct, in the actions of the Department in the withholding of the EPA documents?34 The committee fmally received all of the 105 documents in July 1984, a full year after it had initially requested access. The committee at that time also obtained the written notes and a number of other documents that had been earlier withheld.35 There was also disagreement about the access that would be provided to Department employees for interviews with committee staff. The Department demanded that it be permitted to have one or more Department attorneys present at each interview. The committee
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feared that the presence of Department representatives might intimidate the Department employees in their interviews and stated that it was willing to permit a Department representative to be present only if the representative was "walled-off from Department officials involved with the controversy, if the substance of interviews was not revealed to subsequent interviewees, and if employees could be interviewed without a Department representative present if so requested. The Department ultimately agreed to permit the interviews to go forward without its attorneys present. If a Department employee requested representation, the Department employed private counsel for that purpose. In all, committee staff interviewed twenty-six current and former Department employees, including four Assistant Attorney Generals, under this agreement.36 Partly as a result of these interviews, as well as from information in the handwritten notes that had been initially withheld, the committee concluded that it also required access to Criminal Division documents concerning the origins of the criminal investigation of former EPA Assistant Administrator Rita Lavelle in order to determine if the Department had considered instituting the investigation to obstruct the committee's inquiry. The committee also requested information about the Department's earlier withholding of the handwritten notes and other documents to determine whether Department officials had deliberately withheld the documents in an attempt to obstruct the committee's Investigation.37 The Department at first refused to provide the committee with documents relating to its Lavelle investigation "[c]onsistent with the longstanding practice of the Department not to provide access to active criminal files."38 The Department also refused to provide the committee with access to documentation related to the Department's handling of the committee's inquiry, objecting to the committee's "ever- broadening scope of ...inquiry."39 The committee chairman wrote the Attorney General and objected that the Department was denying the committee access even though no claim of executive privilege had been asserted.40 The chairman also maintained that "Mil this case, of course, no claim of executive privilege could lie because of the interest of the committee in determining whether the documents contain evidence of misconduct by executive branch officials."41 With respect to the documents relating to the Department's handling of the committee inquiry, the chairman demanded that the Department prepare a detailed index of the withheld documents, including the title, date, and length of each document, its author and all who had seen it, a summary of its contents, an explanation of why it was being withheld, and a certification that the Department intended to recommend to the President the assertion of executive privilege as to each withheld document and that each document contained no evidence of misconduct.42 With respect to the Lavelle documents, the chairman narrowed the committee's request to "predicate" documents relating to the opening of the investigation and prosecution of Lavelle, as opposed to FBI and other investigative reports reflecting actual investigative work conducted after the opening of the investigation.43 In response, after a period of more than three months from the committee's initial request, the Department produced those two categories of materials.44 But this was not the last chapter of this affair. As has been the case in the present inquiry, in the past the Department has frequently made the broad claim that prosecution is an inherently executive function and that congressional access to information related to the exercise of that function is thereby limited. Prosecutorial discretion is said to be off limits to congressional inquiry and access demands are viewed as interfering with the discretion traditionally enjoyed by the prosecutor with respect to pursuing criminal cases. That argument
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was raised to a constitutional level in litigation that ensued after the Judiciary Committee filed its report and asked the Attorney General to appoint an independent counsel to pursue a criminal investigation of Department officials based on the Committee's findings. The appointment was made and during the course of the investigation one of the subjects, Theodore Olson, who at the time of the Burford affair was the Assistant Attorney General for the Office of Legal Counsel, was served with a subpoena and refused to comply, claiming that the independent counsel statute was unconstitutional on a variety of constitutional grounds. When the case reached the Supreme Court it rejected the notion that prosecutorial discretion in criminal matters is an inherent or core executive function. Rather, the Court noted in Morrison v. Olson, 45 sustaining the validity of the appointment and removal conditions for independent counsels under the Ethics in Government Act, that the independent counsel's prosecutorial powers are executive in that they have "typically" been performed by Executive Branch officials, but held that the exercise of prosecutorial discretion is in no way "central" to the functioning of the Executive Branch.46 The Court therefore rejected a claim that insulating the independent counsel from at-will presidential removal interfered with the President's duty to "take care" that the laws be faithfully executed. Interestingly, the Morrison Court took the occasion to reiterate the fundamental nature of Congress' oversight function (" ... receiving reports or other information and oversight of the independent counsel's activities ... [are] functions that we have recognized as generally incidental to the legislative function of Congress," citing McGrain v. Daugherty.)47 A subsequent relevant case study involved a 1992 inquiry of the Subcommittee on Investigations and Oversight of the House Committee on Science, Space, and Technology commenced a review of the plea bargain settlement by the Department of Justice of the government's investigation and prosecution of environmental crimes committed by Rockwell International Corporation in its capacity as manager and operating contractor at the Department of Energy's (DOE) Rocky Flats nuclear weapons facility.48 The settlement was a culmination of a five-year investigation of environmental crimes at the facility, conducted by a joint government task force involving the FBI, the Department of Justice, the Environmental Protection Agency (EPA), EPA's National Enforcement Investigation Centers, and the DOE Inspector General. The subcommittee was concerned with the size of the fine agreed to relative to the profits made by the contractor and the damage caused by inappropriate activities; the lack of personal indictments of either Rockwell or DOE personnel despite a DOJ finding that the crimes were "institutional crimes" that "were the result of a culture, substantially encouraged and nurtured by DOE, where environmental compliance was a much lower priority than the production and recovery of plutonium and the manufacture of nuclear "triggers"; and that reimbursements provided by the government to Rockwell for expenses in the cases and the contractual arrangements between Rockwell and DOE may have created disincentives for environmental compliance and aggressive prosecution of the case. The subcommittee held ten days of hearings, seven in executive session, in which it took testimony from the United States Attorney for the District of Colorado; an assistant U.S. Attorney for the District of Colorado; a DOJ line attorney from Main Justice; and an FBI field agent; and received voluminous FBI field investigative reports and interview summaries, and documents submitted to the grand jury not subject to Rule 6(e).49
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At one point in the proceedings all the witnesses who were under subpoena, upon written instructions from the Acting Assistant Attorney General, Criminal Division, refused to answer questions concerning internal deliberations in which decisions were made about the investigation and prosecution of Rockwell, the DOE and their employees. Two of the witnesses advised that they had information and, but for the DOJ directive, would have answered the subcommittee's inquiries. The subcommittee members unanimously authorized the chairman to send a letter to President Bush requesting that he either personally assert executive privilege as the basis for directing the witnesses to withhold the information or direct DOJ to retract its instructions to the witnesses. The President took neither course and the DOJ subsequently reiterated its position that the matter sought would chill Department personnel. The subcommittee then moved to hold the U.S. Attorney in contempt of Congress. A last minute agreement forestalled the contempt citation. Under the agreement (1) DOJ issued a new instruction to all personnel under subpoena to answer all questions put to them by the subcommittee, including those which related to internal deliberations with respect to the plea bargain. Those instructions were to apply as well to all Department witnesses, including FBI personnel, who might be called in the future. Those witnesses were to be advised to answer all questions fully and truthfully and specifically instructed that they were allowed to disclose internal advice, opinions, or recommendations connected to the matter. (2) Transcripts were to be made of all interviews and provided to the witnesses. They were not to be made public except to the extent they needed to be used to refresh the recollection or impeach the testimony of other witnesses called before the subcommittee in a public hearing. (3) Witnesses were to be interviewed by staff under oath. (4) The subcommittee reserved the right to hold further hearings in the future at which time it could call other Department witnesses who would be instructed by the Department not to invoke the deliberative process privilege as a reason for not answering subcommittee questions.50 The most recent and definitive exploration and resolution of the question of the nature and breadth of Congress' oversight prerogative with respect to DOJ operations occurred as a consequence of the President's December 2001 claim of executive privilege in response to a subpoena by the House Government Reform Committee. That subpoena sought, among other material, Justice Department documents relating to alleged law enforcement corruption in the Federal Bureau of Investigation's Boston office that occurred over a period of almost 30 years. During that time, FBI officials allegedly knowingly allowed innocent persons to be convicted of murder on the false testimony of two informants in order to protect the undercover activities of those informants, then knowingly permitted the two informants to commit some 21 additional murders during the period they acted as informants, and, fmally, gave the informants warning of an impending grand jury indictment and allowed them to flee. The President directed the Attorney General not to release the documents because disclosure "would inhibit the candor necessary to the effectiveness of the deliberative processes by which the Department makes prosecutorial decisions," and that committee access to the documents "threatens to politicize the criminal justice process" and to undermine the fundamental purpose of the separation of power doctrine, "which was to protect individual liberty." In defending the assertion of the privilege the Justice Department claimed a historical policy of withholding deliberative prosecutorial documents from Congress in both open and closed civil and criminal cases.51 Initial congressional hearings after the claim was made demonstrated the rigidity of the Department's position. The Department later agreed there might be some area for
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compromise, and on January 10, 2002, White House Counsel Gonzales wrote to Chairman Burton conceding that it was a "misimpression" that congressional committees could never have access to deliberative documents from a criminal investigation or prosecution. "There is no such bright-line policy, nor did we intend to articulate any such policy." But, he continued, since the documents "sought a very narrow and particularly sensitive category of deliberative matters" and "absent unusual circumstances, the Executive Branch has traditionally protected these highly sensitive deliberatiive documents against public or congressional disclosure" unless a committee showed a "compelling or specific need" for the documents.52 The documents continued to be withheld until a further hearing, held on February 6, 2002, when the committee heard expert testimony describing over 30 specific instances since 1920 of the Department of Justice giving access to prosecutorial memoranda for both open and closed cases and providing testimony of subordinate Department employees, such as line attorneys, FBI field agents and U.S. attorneys, and included detailed testimony about specific instances of DOJ' s failure to prosecute meritorious cases. In all instances, investigating committees were provided with documents respecting open and closed cases that often included prosecutorial memoranda, FBI investigative reports, summaries of FBI interviews, memoranda and correspondence prepared during undercover operations, and documents presented to grand juries not protected by Rule 6(e), among other similar "sensitive materials." Six days after the hearing the Committee was given access to the disputed documents.53 The instances of successful committee access to DOJ documents and witnesses cataloged in the above referenced hearing encompassed a wide number ofdivisions, bureaus, and offices at Main Justice and U.S. Attorneys offices in the field, and involved the Department's "sensitive" Public Integrity Section,54 and provide a substantial basis for arguing that no element of the DOJ is exempt from oversight by a jurisdictional committee of the Congress. Indeed, other congressional investigations not cataloged have reached still other DOJ elements, including the DOJ Office of Professional Responsibility. That occurred during the 1995 investigation by the Senate Judiciary Committee's Subcommittee on Terrorism, Technology and Government Information of allegations that several branches of the Department of Justice and the Department of the Treasury had engaged in serious criminal and professional misconduct in the investigation, apprehension and prosecution of Randall Weaver and Kevin Harris at Ruby Ridge, Idaho. The Subcommittee held 14 days of hearings in which it heard testimony from 62 witnesses, including Justice, Federal Bureau of Investigation, and Treasury officials, line attorneys and agents, and obtained various Justice, FBI and Treasury internal reports,55 and issued a final report.56 The Subcommittee's hearings revealed that the involved federal agencies conducted at least eight internal investigations into charges of misconduct at Ruby Ridge, none of which has ever been publically released.57 DOJ expressed reluctance to allow the Subcommittee to see the documents out of a concern they would interfere with the ongoing investigation but ultimately provided some of them under conditions with respect to their public release. The most important of those documents was the Report of the Ruby Ridge Task Force.58 The Task Force was established by the DOJ after the acquittals of Randy Weaver and Kevin Harris of all charges in the killing of a Deputy United States Marshal59 to investigate charges that federal law enforcement agents and federal prosecutors involved in the investigation, apprehension and prosecution of Weaver and Harris may have engaged in professional misconduct and criminal wrongdoing. The allegations were referred to DOJ's Office of
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Professional Responsibility (OPR). The Task Force was headed by an Assistant Counsel from OPR and consisted of four career attorneys from DOJ's Criminal Division and a number of FBI inspectors and investigative agents. The Task Force submitted a 542 page report to OPR on June 10, 1994, which found numerous problems with the conduct of the FBI, the U.S. Marshals Service, and the U.S. Attorneys office in Idaho, and made recommendations for institutional changes to address the problems it found. It also concluded that portions of the rules of engagement issued by the FBI during the incident were unconstitutional under the circumstances, and that the second of two shots taken by a member of the FBI's Hostage Rescue Team (HRT), which resulted in the death of Vicki Weaver, was not reasonable. The Task Force recommended that the matter of the shooting be referred to a prosecutorial component of the Department for a determination as to whether a criminal investigation was appropriate. OPR reviewed the Task Force Report and transmitted the Report to the Deputy Attorney General with a memorandum that dissented from the recommendation that the shooting of Vicki Weaver by the HRT member be reviewed for prosecutorial merit based on the view that given the totality of circumstances, the agent's actions were not unreasonable. The Deputy Attorney referred the Task Force recommendation for prosecutorial review to the Criminal Section of the Civil Rights Division which concluded that there was no basis for criminal prosecution. The Task Force Report was the critical basis for the Subcommittee's inquiries during the hearings and its discussion and conclusions in its final report.60
Claims of Deliberative Process Privilege Assertions of deliberative process privilege by agencies have not been uncommon in the past. In essence it is argued that congressional demands for information as to what occurred during the policy development process of an agency would unduly interfere, and perhaps "chill," the frank and open internal communications necessary to the quality and integrity of the decisional process. It may also be grounded on the contentions that it protects against premature disclosure of proposed policies before they are fully considered or actually adopted by the agency, and to prevent the public from confusing matters merely considered or discussed during the deliberative process with those on which the decision was based. However, as with claims of attorney-client privilege and work product immunity, congressional practice has been to treat their acceptance as discretionary with the committee. Moreover, a 1997 appellate court decision underlines the understanding that the deliberative process privilege is a common law privilege of agencies that is easily overcome by a showing of need by an investigatory body, and other court rulings and congressional practice have recognized the overriding necessity of an effective legislative oversight process. The appeals court ruling in In re sealed Case (Espy)61 is of special note. The case involved, inter alia, White House claims of executive and deliberate process privileges for documents subpoenaed by an independent counsel. At the outset of the appeals court's unanimous ruling it carefully distinguished between the "presidential communications privilege" and the "deliberative process privilege." Both, the court observed, are executive privileges designed to protect the confidentiality of executive branch decisionmaking. But the deliberative process privilege applies to executive branch officials generally, is a common law privilege which requires a lower threshold of need to be overcome, and "disappears altogether when there is any reason to believe government misconduct has occurred.62 The
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court's recognition of the deliberative process privilege as a common law privilege which, when claimed by executive department and agency officials, is easily overcome, and which "disappears" upon the reasonable belief by an investigating body that government misconduct has occurred, may severely limit the common law claims of agencies against congressional investigative demands. A demonstration of need of a jurisdictional committee would appear to be sufficient, and a plausible showing of fraud waste, abuse or maladministration would be conclusive. Even before Espy, courts and committees have consistently countered such claims of agencies as attempts to establish a species of agency privilege designed to thwart congressional oversight efforts. Thus it has been pointed out that the claim that such internal communications need to be "frank" and "open" does not lend it any special support and that coupling that characterization with the notion that those communications were part of a "deliberative process" will not add any weight to the argument. In effect, such arguments have been seen as attempting to justify a withholding from Congress on the same grounds that an agency would use to withhold such documents from a citizen requester under Exemption 5 of the Freedom of Information Act (FOIA).63 Such a line of argument is likely to be found to be without substantial basis. As has been indicated above, Congress has vastly greater powers of investigation than that of citizen FOIA requesters. Moreover, in the FOIA itself, Congress carefully provided that the exemption section "is not authority to withhold information from Congress."64 The D.C. Circuit in Murphy v. Department of the Army,65 explained that FOIA exemptions were no basis for withholding from Congress because of the obvious purpose of the Congress to carve out for itself a special right of access to privileged information not shared by others ... . Congress, whether as a body, through committees, or otherwise, must have the widest possible access to executive branch information if it is to perform its manifold responsibilities effectively. If one consequence of the facilitation of such access is that some information will be disclosed to congressional authorities but not to private persons, that is but an incidental consequence of the need for informed and effective lawmakers.66
Further, it may be contended that the ability of an agency to assert the need for candor to ensure the efficacy of internal deliberations as a means of avoiding information demands would severely undermine the oversight process. If that were sufficient, an agency would be encouraged to disclose only that which supports its positions, and withhold those with flaws, limitations, unwanted implications, or other embarrassments. Oversight would cease to become an investigative exercise of gathering the whole evidence, and become little more than a set-piece of entertainment in which an agency decides what to present in a controlled "show and tell" performance Moreover, every federal official, including attorneys, could assert the imperative of timidity--that congressional oversight, by holding up to scrutiny the advice he gives, will frighten him away from giving frank opinions, or discourage others from asking him for them. This argument, not surprisingly, has failed over the years to persuade legislative bodies to cease oversight. Indeed, when the Supreme Court discussed the "secret law" doctrine in NLRB v. Sears, Roebuck & Co.67 it addressed why federal officials--including those giving legal opinions--need not hide behind such fears:
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The probability that an agency employee will be inhibited from freely advising a decisionmaker for fear that his advice, if adopted, will become public is slight. First, when adopted, the reasoning becomes that of agency and becomes its responsibility to defend. Second, agency employees will generally be encouraged rather than discouraged by public knowledge that their policy suggestions have been adopted by the agency. Moreover, the public interest in knowing the reasons for a policy actually adopted by an agency supports ... [disclosure].68
The deliberative process objection is often raised by an agency to forestall congressional inquiries while it is engaged in the process of promulgating substantive rules. But it is difficult to persuasively contend that disclosure to Congress will do injury to the quality and integrity of the ongoing rulemaking proceeding. Rather, a rulemaking exercise would appear to be a quintessential object of legislative scrutiny. An agency may engage in substantive rulemaking only with an express grant of legislative authority. Often such delegations vest broad discretionary power in an agency. Congress has made agency lawmaking subject to the procedural requirements of the Administrative Procedure Act,69 which has fostered widespread public participation in the process, and which the courts have attempted to ensure is meaningful. It has not, however, abdicated control over this vital function. Thus Congress may intervene in an agency rulemaking proceeding at any point. It is not limited simply to withdrawing an agency's authority or to negating a particular rule by law after the fact. The courts have recognized that where the nature of a rulemaking is general policymaking it is akin to the legislative process70 and that "[u]nder our system of government the very legitimacy of general policymaking performed by unelected administrators depends in no small part upon the openness, accessibility, and amenability of these officials to the needs and ideas of the public from whom their ultimate authority derives and upon whom their commands must fall."71 It is therefore "entirely proper for Congressional representatives vigorously to represent the interests of their constituents before administrative agencies engaged in informal, general policymaking... . Administrative agencies are expected to balance congressional pressure with the pressures emanating from all other sources."72 Arguably, then, the integrity, even the legitimacy, of an agency rulemaking is more damaged by the attempted avoidance of oversight inquiries directed at the basis for proposed agency policy actions of general concerns than it would be by the temporary distress of officials and employees over revelation of positions taken during the policy development process. A commentator has succinctly made this point: The legitimacy and acceptability of the administrative process depends on the perception of the public that the legislature has some sort of ultimate control over the agencies. It is through the Congress that the administrative system is accountable to the public. If members of Congress "be corrupt, others may be chosen." The public may not, however, directly remove agency officials. The public looks to its power to elect representatives as its input into the administrative process. The public will perceive restrictions on reducing the accountability of agency officials. This will negatively affect the legitimacy of agency actions, as well as seriously erode notions of popular sovereignty. Even administrators, who may not perceive legislative intrusions into the administrative process as being particularly desirable, recognize congressional supervision as a necessary function in a democratic society. The nature of the government requires that the legislature maintain a careful supervision over agency action.73
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Some heed also may be paid to the salutary admonition of the Third Circuit Court of Appeals for a court to be "sensitive to the legislative importance of Congressional committees of oversight and investigation and recognize their interest in the objective and efficient operation of regulatory agencies serves a legitimate and wholesome functions with which we should not interfere."74
CONCLUSION Past congressional history and practice, as well as pertinent judicial precedent, appear to support the Committee's demands for the documents and testimony called for in its subpoenas. That history also contains instances demonstrating a sensitivity to the law enforcement concerns and duties of the Justice Department and other departments and agencies with law enforcement functions where there has been an absence of a reasonable belief of a jurisdictional committee that government misconduct has occurred. But where such a reasonable belief of maladministration, malfeasance or fraud exists, the observation by Iran-Contra Independent Counsel Lawrence E. Walsh is pertinent: "The legislative branch has the power to decide whether it is more important perhaps to even to destroy a prosecution that to hold back testimony they need. They make that decision. It is not a judicial decision or a legal decision but a political decision of the highest importance.75
ENDNOTES 1
E.g., McGrain v. Daugherty, 273 U.S. 135 (1927); Watkins v. United States, 354 U.S. 178 (1957); Barenblatt v. United States, 360 U.S. 109 (1950); Eastland v. United States Servicemen's Fund, 421 U.S. 491 (1975); Nixon v. Administrator of General Services, 433 U.S. 425 (1977); see also, United States v. A.T. T., 551 F.2d 384 (D.C. Cir. 1976) and 567 F.2d 1212 (D.C. Cir. 1977). 2 421 U.S. at 504, n. 15 (quoting Barenblatt, supra, 360 U.S. at 111). 3 354 U.S. at 187. 4 Id. 5 Id. at 182. 6 Id. at 194-95 7 Id. at 200 n. 33. 8 273 U.S. 135 (1927). 9 273 U.S. at 177-78. 10 279 U.S. 263 (1929). 11 Id. at 290. 12 Id. at 295. 13 Id.. 14 McGrain v. Daugherty, 273 U.S. 135, 151 (1927).
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Investigation of Hon. Harry M. Daugherty, Formerly Attorney General of the United States: Hearings Before the Senate Select Committee on Investigation of the Attorney General, vols. 1-3, 68th Congress, 1st Session (1924). 16 See, e.g., id. at 1495-1503, 1529-30,2295-96. 17 Id. at 1120. 18 Id. at 1078- 79. 19 Id. at 1015-16 and 1159-60. 20 Id. at 2389. 21 Id. at 1495-1547. 22 Id. at 1790. 23 273 U.S. 135 (1927). 24 U.S. v. House of Representatives, 557 F. Supp. 150 (D.D.C. 1983). 25 See, Report of the House Comm. on the Judiciary on Investigation of the Role of the Department of Justice in the Withholding of Environmental Protection Agency Documents from Congress in 1982-1983, H.R. Rep. No.99-435, 99th Cong., 1st Sess (1985) ("EPA Withholding Report"). 26 EPA Withholding Report at 1163; see also 1234-38. 27 Id. at 1164. 28 Id. at 1164- 65 & 1191-1231. 29 Id. at 1167 & 1182-83. 30 Id. at 1184. 31 Id. at 1168 & 1233. 32 Id. at 1168. 33 Id. at 1169. 34 Id. at 1172. 35 Id. at 1173. 36 Id. at 1174-76. 37 Id. at 1176- 77 & 1263-64. 38 Id. at 1265. 39 Id. at 1265. 40 Id. at 1266. 41 Id. 42 Id. at 1268-69. 43 Id. at 1269-70. 44 Id. at 1270. 45 487 U.S. 654 (1988). 46 Id. at 691-92. 47 Id. at 694. 48 See Environmental Crimes at the Rocky Flats Nuclear Weapons Facility: Hearings Before the Subcomm on Investigations and Oversight of the House Committee on Science, Space and Technology, 102d Cong., 2d Sess., Vols. I and II (1992) ("Rocky Flats Hearings"); Meetings: To Subpoena Appearance by Employees of the Department of Justice and the FBI and To Subpoena Production of Documents From Rockwell International Corporation, Before the Subcomm on Investigations and Oversight of the House Comm. on Science, Space, and Technology, 102d Congress, 2d Sess., (1992)("Subpoena Meetings").
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Rocky Flats Hearing, Vol. I, at 389-1009, 1111-1251; Vol. II. Flats Hearings, Vol. I at 9-10,25-31,1673-1737; Subpoena Hearings, at 1-3,82-86, 143-51. 51 Louis Fisher, "The Politics ofExecutive Privilege," Carolina Academic Press, 108 (2004)(Fisher). 52 Fisher, Id. 53 "Everything Secret Degenerates: The FBI's Use of Murderers As Informants," House Report No. 108-414, 108th Cong., 2d Sess. 121-134 (2004); Hearings, " Investigation Into Allegations of Justice Department Misconduct In New England-Volume I", House Comm. on Government Reform, 107' Cong., 1" and 2d Sess's. 520-556, 562-604 (May 3, December 13, 2001; February 6, 2002) (Hearings); McIntyre v. United States, 367 F.3d 38, 42-51 (1" Cir. 2004)(recounting background of FBI corrupt activities); United States v. Salemme, 91 Fed. Supp. 2d 141, 148-63, 208-15, 322 (D.Mass. 1993) (same); United States v. Flemmi, 195 F. Supp 243, 249-50 (D. Mass. 200); (same) Charles Trefer, "President Bush's First Executive Privilege Claim: The FBI/Boston Investigation", 33 Pres. Stud. Q. 201(2003). 54 See Hearings, supra, at 549-50, 555. 55 Hearings, "The Federal Raid on Ruby Ridge, Idaho," before the Senate Subcomm On Terrorism, Technology, Government Information, Comm. on the Judiciary, 104th Cong., Pt Sess. (1995) (Ruby Ridge Hearings). 56 Ruby Ridge: Report of the Subcommittee on Terrorism, Technology and Government Information of the Senate Committee on the Judiciary (Ruby Ridge Report). The 154page document appears not to have been officially reported by the full Committee. A bound copy may be found in the United States Senate Library, catalogue number HV 8141.U56 1995. 57 Ruby Ridge Report at 1; Ruby Ridge Hearings at 722, 954, 961. 58 The Task Force Report was never publically released or printed in the Subcommittee's hearing record. A bound copy of the Report provided the Subcommittee may be found in the United States Senate Library, catalogue number HV814.U55 1995. 59 Weaver was convicted for failure to appear for a trial and for commission of an offense while on release. 60 See, e.g., Ruby Ridge Hearings at 719-737, 941-985; Ruby Ridge Report at 10-11 ("With the exceptions of the [Ruby Ridge] Task Force Report, which was partially disavowed by the Department, and the April 5, 1995 memorandum of Deputy Attorney General Jamie Gorelick, it appeared to the Subcommittee that the authors of every report we read were looking more to justify agency conduct than to follow the facts wherever they lead."), 6169, 115, 122-23, 134-35, 139, 145- 49. 61 121 F. 3d 729 (D.C. Cir. 1997). 62 121 F. 3d at 745, 746; see also id. at 737-738("[W]here there is reason to believe the documents sought may shed light on government misconduct, the [deliberative process] privilege is routinely denied on the grounds that shielding internal government deliberations in this context does not serve `the public interest in honest, effective government"). 63 5 U.S.C. 553 (b)(5)(1994). 64 5 U.S. C. 552 (d). 65 613 F. 2d 1151 (D.C. Cir. 1979). 66 Id at 1155-56, 1158. 50
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Morton Rosenberg
421 U.S. 132 (1975). Id. at 161 (emphasis in original). 69 See 5 U.S.C. 553 (1994). 70 Assoc. Of National Advertisers, Inc., v. FTC, 627 F. 2d 1151(D.C. Cir. 1979), cert. denied. 447 U.S. 921 (1980). 71 Sierra Club v. Costle, 657 F. 2d 298, 400-401 (D.C. Cir. 1981). 72 Id. at 409-410. 73 Comment, Judicial Limitation of Congressional Influence on Administrative Agencies, 73 Northwestern L. Rev. 931, 941 (1971) (footnotes omitted). 74 Gulf Oil Corp. v. FPC, 563 F. 2d 588, 611 (3d Cir. 1977). 75 Lawrence E. Walsh, " The Independent Counsel and the Separation of Powers," 25 Hous. L. Rev. 1, 9 (1988). 68
In: Congress of the U.S: Commitees, Rules and Procedures ISBN 978-1-60456-416-7 Editor: Sela G. Thomason © 2009 Nova Science Publishers, Inc.
Chapter 26
ASIAN PACIFIC AMERICANS * IN THE UNITED STATES CONGRESS Lorraine H. Tong SUMMARY Nine Asian Pacific Americans serve in the 110th Congress; two Senators, six Representatives, and one Delegate. Of the 36 Asian Pacific Americans who have served in the United States Congress from 1903 to the present.1 Their ancestry has included Chinese, Chamorro, Filipino, Asian Indian, Japanese, Korean, Native Hawaiian, and Samoan.2 There have been five Senators (three have also served in the House), 15 Representatives, six territorial Delegates, and 13 Resident Commissioners from the Philippine Islands. Resident Commissioners served from 1907-1946 while the Philippines was a U.S. territory and commonwealth (all were Philippine born). The ancestry of these Asian Pacific Americans has included Chinese, Chamorro, Filipino, Asian Indian, Japanese, Korean, Native Hawaiian, and Samoan. Of the 23 Asian Pacific Americans, 16 were Democrats and 7 were Republicans. Asian Pacific Americans have served in both houses of Congress representing California, Hawaii, Louisiana, Oregon, Virginia, American Samoa, and Guam. They have served in leadership positions, including committee and subcommittee chairmanships. This chapter presents information on Senators, Representatives, and Delegates, including party affiliations, length and dates of service, and committee assignments.
INTRODUCTION Nine Asian Pacific Americans serve in the 110th Congress: two Senators, six Representatives, and one Delegate. Standard sources identify a total of 36 Asian Pacific Americans elected to Congress from 1903 to the present.' Their ancestry has included *
This is an edited, excerpted and augmented edition of a CRS Report for Congress publication, Order Code -97-398 GOV, dated April 30, 2007.
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Chinese, Chamorro, Filipino, Asian Indian, Japanese, Korean, Native Hawaiian, and Samoan? There have been five Senators (three who also served in the House), 15 Representatives, and six Delegates. Eighteen Asian Pacific Americans have served only in the House, and two have served only in the Senate. Three have served in both houses: Daniel Ken Inouye (D-HI), Spark Masayuki Matsunaga (D- HI), and Daniel Kahikina Akaka (D-H1). Sixteen Asian Pacific Americans have been Democrats, and seven have been Republicans. Nine is the highest number of Asian Pacific Americans who have served at any one time. These Asian Pacific Americans have represented California, Hawaii, Louisiana, Oregon, Virginia, American Samoa, and Guam. Eight Asian Pacific Americans have represented Hawaii, and seven have represented California. There were also 13 Resident Commissioners from the Philippine Islands elected to the United States Congress from 1907 to 1946 (all were born in the Philippines).3 The first Asian Pacific American Member of Congress was Representative Dalip Singh Saund (D-CA), an immigrant from India who served in the House from 1957 to 1963. The first Asian Pacific American Senator elected to Congress was Hiram Leong Fong (R-HI), who was seated on August 24, 1959, as one of Hawaii's first two Senators after it was admitted to the Union. Senator Fong also was the first American of Chinese ancestry elected to Congress. Early in the 20th century, Jonah Kuhio Kalanianaole represented the territory of Hawaii from 1903 to 1922 as a nonvoting Delegate to the House. He was related to the Hawaiian royal family, and also held the title of prince. Senator Inouye, a Member of the 110th Congress, is the Asian Pacific American with the longest congressional service. He was the first American of Japanese ancestry to be elected to Congress, and he was Hawaii's first Member of the House after it was admitted to the Union. He began his service on August 24, 1959, and was subsequently elected in 1962 to the Senate where he has served since January 3, 1963. There have been only four Asian Pacific American women who have served in Congress. Representative Mazie K. Hirono (D-H1), a freshman Member, joins Representative Doris 0. Matsui4 (D-CA) in the 110th Congress. The other two were Representative Patsy T Mink (DHI), the first Asian Pacific American woman to be elected to Congress, and Representative Patricia Fukuda Saiki (R-HI).
BACKGROUND AND PREVIOUS OCCUPATIONS Many of the Asian Pacific Americans have had similar educational and professional backgrounds. Eight have been educators, including two high school principals, two college professors, and two presidents of a state college and a university system. Nine have held law degrees or practiced law; two have also been judges. Many have held elected state or local offices before seeking a congressional seat: nine have served in state legislatures, two were lieutenant governors, and two have been mayors. Ten Asian Pacific Americans have military experience, including two who served in other than the U.S. armed forces. One was a brigadier general. Some were decorated war veterans, including one Medal of Honor recipient.
Asian Pacific Americans in the United States Congress
499
LEADERSHIP IN COMMITTEES AND SUBCOMMITTEES Three Asian Pacific Americans have chaired committees — Senators Inouye5 and Akaka6 and Representative Norman Y. Mineta.7 Eight Asian Pacific Americans have chaired subcommittees — Senators Inouye, Akaka, and Matsunaga;8 Representatives Jay C. Kim,9 Norman Y. Mineta, Robert C. Scott, David Wu; and Delegate Eni F H. Faleomavaega. In addition, Representative Robert T. Matsui served as acting chair of a subcommittee. In the 110th Congress, several Asian Pacific Americans chair committees and subcommittees. In the Senate, Senator Inouye is chair of the Commerce, Science, and Transportation Committee and the chair of the Senate Appropriations Subcommittee on Defense. Senator Akaka chairs the Veterans' Affairs Committee and also chairs three subcommittees: the Armed Services Subcommittee on Readiness and Management Support; the Homeland Security and Governmental Affairs Subcommittee on Oversight of Government Management, the Federal Workforce, and the District of Columbia; and the Energy and Natural Resources Subcommittee on National Parks. In the House, Representative Scott is chair of the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security. Representative Wu10 is chair of the House Science and Technology Subcommittee on Technology and Innovation, and Delegate Faleomavaega is chair of the House Foreign Affairs Subcommittee on Asia, the Pacific, and the Global Environment.
CONGRESSIONAL ASIAN PACIFIC AMERICAN CAUCUS The bicameral and bipartisan Congressional Asian Pacific American Caucus (CAPAC) was established on May 16, 1994. The goals of the caucus are to work on policies and legislation of concern to the Asian Pacific American community; to educate other Members about the history, contributions, and concerns of Asian Pacific Americans; and to protect and advance the civil and constitutional rights of all Americans. Representative Mineta, one of the founders of the caucus, served as the first chair. Upon Representative Mineta' s resignation from the House, Representative Mink became chair of the caucus and served in that position through the 105th Congress. In both the 104th and 105th Congresses, Delegate Robert Underwood was vice chair of the caucus, and Senator Akaka served as secretary of the caucus. In the 106th Congress, Delegate Underwood chaired the caucus, Representative Wu served as vice chair, and Senator Inouye served as secretary. In the 107th Congress, Representative Wu served as caucus chair, Representative Michael M. Honda served as vice chair, and Senator Inouye continued as secretary. In the first session of the 108th Congress, Representatives Wu and Honda continued as chair and vice chair, respectively. In the second session, Representative Honda became chair, Delegate Faleomavaega became vice chair, Delegate Madeleine Bordallo became secretary, and Representative Ed Case became whip. In the 109th Congress, Representatives Honda and Case and Delegates Faleomavaega and Bordallo were all re-elected to the same positions. In the 110th Congress, Representative Honda and Delegates Faleomavaega and Bordallo continue in their 109th Congress positions. The CAPAC Executive Board members are: Senators Akaka and Inouye, and Representatives Neil Abercrombie, Xavier Becerra, Doris
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Matsui, Mazie Hirono, Al Green, Robert Scott, and David Wu. CAPAC formed seven task forces: Civil Rights, Education, Health, Housing and Economic Development Priorities, Hurricane Katrina and Rita: Disaster Preparedness and Relief, Immigration, and Women's Issues. Membership to the caucus is not restricted to those of Asian Pacific heritage; the caucus is open to all Members of Congress.11
TABLES AND DATA This chapter also provides a list of selected biographical information about 23 Asian Pacific American Members and Delegates, and their committee assignments during their tenure. Four tables summarize information about the 36 Asian Pacific Americans who have served in Congress. Table 1 shows the Congress, the dates, and the name of the Members and Delegates who served in the House and Senate. Table 2 shows the state or territory, the number of Members and Delegates elected from the state or territory, and their names Table 3 reflects the Congress, years, total number of Members and Delegates, and the number of Members and Delegates in the House and Senate. Finally, Table 4 lists Resident Commissioners from the Philippine Islands, the Congresses in which they served, and the dates of their service. Sources for the information on Asian Pacific Americans presented in this chapter included the Biographical Directory of the United States Congress, 1774-present available at [http://bioguide.congress.gov/biosearch/biosearch.asp]; The Almanac of American Politics 2000; Politics in America 2000; and various editions of the Congressional Directory. Information on heritage and ancestry was provided to these source books by the Members. Information on committee assignments and leadership positions was obtained from various editions of the Congressional Directory, various editions of the Official Alphabetical List of the House of Representatives of the United States, various editions of the Congressional Yellow Book (a publication of Leadership Directories, Inc.), information on Member websites, and telephone calls to Member offices. For an overview of Asian Pacific American political participation in the United States, see CRS Report RS20206, Asian Pacific American Political Participation and Representation in Elective Office, by Kevin Coleman.
ALPHABETICAL LISTING OF ASIAN PACIFIC AMERICAN MEMBERS AND DELEGATES, SELECTED BIOGRAPHICAL INFORMATION, AND COMMITTEE ASSIGNMENTS DURING THEIR TENURE IN OFFICE12 AKAKA, DANIEL KAHIKINA. Democrat; a Representative and Senator from Hawaii. Born on September 11, 1924. Elected to the House of Representatives for the 95th -101' Congresses; served from January 3, 1977, to May 15, 1990. Appointed to the Senate in 1990 to fill the vacancy caused by the death of Senator Spark Matsunaga and subsequently elected by special election to the Senate in November 1990. Re-elected in 1994, 2000, and 2006; has served in the Senate since May 16, 1990.
Asian Pacific Americans in the United States Congress
501
Committee Assignments H. Agriculture H. Appropriations H. Merchant Marine and Fisheries * S. Armed Services * S. Banking, Housing, and Urban Affairs * S. Energy and Natural Resources * S. Homeland Security and Governmental Affairs * S. Indian Affairs * S. Veterans' Affairs, Chair * S. Select Committee on Ethics BLAZ, BEN GARRIDO. Republican; a Delegate from Guam. Born on February 14, 1928. Elected to the 99th-102nd Congresses; served from January 3, 1985, to January 3, 1993. Committee Assignments H. Armed Services H. Interior and Insular Affairs FALEOMAVAEGA, ENI F. H. Democrat; a Delegate from American Samoa. Born August 15, 1943. Elected to the 100th-110th Congresses; has served since January 3, 1989. Committee Assignments H. Interior and Insular Affairs H. Education and Labor * H. Foreign Affairs * H. Natural Resources * H. Small Business FONG, HIRAM LEONG. Republican; a Senator from Hawaii. Born on October 15, 1906; died on August 18, 2004. First Asian Pacific American elected to the Senate and first American of Chinese ancestry elected to Congress. Elected to the Senate in 1959 upon the admission of Hawaii to the Union, reelected in 1964 and 1970; served from August 21, 1959, to January 3, 1977. Committee Assignments S. Appropriations S. Interior and Insular Affairs S. Judiciary S. Post Office and Civil Service S. Public Works HAYAKAWA, SAMUEL ICHIYE. Republican; a Senator from California. Born on July 18, 1906; died on February 26, 1992. Elected to the Senate in 1976; served from January 3, 1977, to January 3, 1983. Committee Assignments S. Agriculture, Nutrition, and Forestry S. Budget S. Labor and Human Resources
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Lorraine H. Tong S. Interior and Insular Affairs S. Foreign Relations
HIRONO, MAZIE KEIKO. Democrat; a Representative from Hawaii. Born on November 3, 1947. Elected to the 110th Congress; has served since January 3, 2007. Committee Assignments * H. Education and Labor * H. Transportation and Infrastructure HONDA, MICHAEL M. Democrat; a Representative from California. Born on June 27, 1941. Elected to the 107th - 110th Congresses; has served since January 3, 2001. He served as regional whip for the 107th and 108th Congresses. In the 110th Congress, he was named Democratic senior whip. Committee Assignments * H. Appropriations H. Budget * H. Science and Technology H. Transportation and Infrastructure INOUYE, DANIEL KEN Democrat; a Representative and Senator from Hawaii. Born on September 7, 1924. First American of Japanese ancestry elected to Congress. Elected to the House for the 86th and 87th Congresses; served from August 21, 1959, to January 3, 1963. Elected to the Senate in 1962, reelected in 1968, 1974, 1980, 1986, 1992, 1998, and 2004; has served in the Senate since January 3, 1963. He served as assistant majority whip from 1975 to 1976 and deputy Democratic whip from 1981 to 1986. From 1977 to 1988, he was secretary of the Senate Democratic Conference. From 1989 to 1994, he chaired the Democratic Steering Committee. Committee Assignments H. Agriculture H. Banking and Currency S. Armed Services S. District of Columbia S. Public Works Joint Committee on the Library * Joint Committee on Printing * S. Appropriations * S. Commerce, Science, and Transportation, chair * S. Indian Affairs, chair in previous Congresses * S. Rules and Administration S. Select Committee on Intelligence, chair Select Committee on Secret Military Assistance to Iran and Nicaragua Opposition (Iran-Contra Committee), Senate chair JINDAL, Bobby. Republican; a Representative from Louisiana. Born on June 10, 1971. Elected to the 109th and 110th Congresses; has served since January 3, 2005. In the 109th
Asian Pacific Americans in the United States Congress
503
Congress, he was elected Republican freshman class president. He served as assistant majority whip in the 109th Congress, and is an assistant minority whip in the 110th Congress. Committee Assignments H. Education and the Workforce * H. Homeland Security * H. Natural Resources KALANIANAOLE, JONAH KUHIO. Republican; a Delegate from the Territory of Hawaii. Born on March 26, 1871; died on January 7, 1922. Elected to the 58th- 67th Congresses; served from March 4, 1903, to January 7, 1922. Committee Assignments H. Agriculture H. Coinage, Weights and Measures H. Post Office and Post-Roads H. Private Land Claims H. Territories KIM, JAY C. Republican; a Representative from California. Born on March 27, 1939. First American of Korean ancestry elected to Congress. Elected to the 103rd- 105th Congresses; served from January 3, 1993, to January 3, 1999. He was Republican sophomore class whip in the 104th Congress. Committee Assignments H. Small Business H. International Relations H. Transportation and Infrastructure MATSUI, Doris Okada. Democrat; a Representative from California. Born on September 25, 1944. Elected to the 109th Congress in a special election on March 8, 2005, to fill the vacancy caused by the death of her husband, Representative Robert T. Matsui; reelected to the 110th Congress; has served since March 8, 2005. Committee Assignments * H. Rules H. Science and Technology * H. Transportation and Infrastructure MATSUI, ROBERT TAKEO. Democrat; a Representative from California. Born on September 17, 1941; died on January 1, 2005. Elected to the 96th-109th Congresses; served from January 3, 1979, to January 1, 2005. He served and was majority whip at large from 1987 to 1994 and served as minority whip at large from 1995 to 2003, and as minority whip at large in the 108th Congress. Committee Assignments H. Budget H. Government Operations H. Interstate and Foreign Commerce H. Judiciary H. Ways and Means
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Lorraine H. Tong
MATSUNAGA, SPARK MASAYUKI. Democrat; Representative and Senator from Hawaii. Born October 8, 1916; died on April 15, 1990. Elected to the House of Representatives for the 88th-94th Congresses; served from January 3, 1963, to January 3, 1977. Elected to the Senate in 1976, reelected in 1982 and 1988; served from January 3, 1977, to April 15, 1990. He served as chief deputy majority whip from 1979 to 1980 and chief deputy minority whip from 1981 to 1986, and from 1987 to 1988 he was chief deputy majority whip. Committee Assignments H. Agriculture H. Post Office and Civil Service H. Rules S. Commerce S. Energy S Finance S. Foreign Relations S. Labor and Human Resources S. Veterans' Affairs MINETA, NORMAN YOSHIO. Democrat; a Representative from California. Born November 12, 1931. Elected to the House for the 94th-104th Congresses. Served from January 3, 1975, until his resignation on October 10, 1995. Confirmed by the Senate on July 20, 2000, and sworn in as U.S. Secretary of Commerce on July 21, 2000. Confirmed by the Senate on January 24, 2001, sworn in as U.S. Secretary of Transportation on January 25, 2001, served until July 7, 2006. He was a majority whip at large from 1977 to 1981, deputy majority whip from 1982 to 1994, and deputy minority whip in 1995. He became the first Asian Pacific American to serve in a Cabinet position when he was sworn in as U.S. Secretary of Commerce on July 21, 2000. He was nominated to a second Cabinet post and was sworn in as U.S. Secretary of Transportation on January 25, 2001, and continued in that post in the second term until July 7, 2006. He has the distinction of being the longest serving secretary in the history of the Department of Transportation. Committee Assignments H. Budget H. Permanent Select Committee on Intelligence H. Post Office and Civil Service H. Public Works and Transportation, chair H. Science and Technology MINK, PATSY TAKEMOTO. Democrat; a Representative from Hawaii. Born December 6, 1927; died on September 28, 2002. First Asian Pacific American woman to be elected to Congress. Elected to the 89th-94th Congresses; served from January 3, 1965, to January 3, 1977. Appointed Assistant Secretary for the Office of Oceans and International Environmental and Scientific Affairs, Department of State. Elected again in 1990 in a special election to the 101st Congress to fill the vacancy caused by the appointment of Daniel Akaka to the Senate. Re-elected to 102nd-107th Congresses; served until her death on September 28, 2002; posthumously elected to the 108th Congress on November 5, 2002. She served as secretary of the Democratic Caucus from 1975 to 1977, minority regional whip from 1997 to1998, and served as minority whip at large from 2001 until her death in September 2002. Committee Assignments H. Budget H. Interior and Insular Affairs H. Natural Resources
Asian Pacific Americans in the United States Congress
505
H. Education and the Workforce H. Government Reform SAIKI, PATRICIA FUKUDA. Republican; a Representative from Hawaii. Born on May 28, 1930. Elected to the 100th-101st Congresses; served from January 3, 1987, to January 3, 1991. Appointed, and confirmed by the Senate on March 21, 1991, to be administrator of the Small Business Administration after leaving Congress. Committee Assignments H. Banking, Finance and Urban Affairs H. Merchant Marines and Fisheries SAUND, DALIP SINGH. Democrat; a Representative from California. Born on September 20, 1899; died August 22, 1973. First American of Indian ancestry to be elected to Congress. Elected to the 85th-87th Congresses; served from January 3, 1957, to January 3, 1963. Committee Assignments H. Interior and Insular Affairs H. Foreign Affairs SCOTT, ROBERT Cortez. Democrat; a Representative from Virginia. Born on April 30, 1947. An African American with Filipino heritage. Elected to the 103rd - 110th Congresses; has served since January 3, 1993. Committee Assignments H. Budget * H. Education and the Workforce H. Judiciary * H. Science, Space, and Technology H. U.S. National Security and Military Commercial Concerns with the People's Republic of China SUNIA, FOFO IOSEFA FITI. Democrat; elected as first Delegate from American Samoa. Born on March 13, 1937. Elected to the 97th -100th Congresses; served from January 3, 1981, until his resignation on September 6, 1988. Committee Assignments H. Interior and Insular Affairs H. Merchant Marines and Fisheries H. Public Works and Transportation UNDERWOOD, ROBERT ANACLETUS. Democrat; a Delegate from Guam. Born July 13, 1948. Elected to the 103rd-107th Congresses; was not a candidate for the 108th Congress; served from January 3, 1993, to January 3, 1993; unsuccessful candidate for governor of Guam. In the 105th Congress, he served as a deputy whip for the Democratic Study Group of the House Democratic Caucus, and also served as Democratic Caucus whip at large for the 105th and 106th Congresses. Committee Assignments H. Education and Labor H. Armed Services H. Resources
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WON PAT, ANTONIO BORJA. Democrat; the first Delegate from Guam. Born on December 10, 1908; died on May 1, 1987. Elected to the 93rd-98th Congresses; served from January 3, 1973, to January 3, 1985. Committee Assignments H. Armed Services H. Interior and Insular Affairs WU, DAVID. Democrat; Representative from Oregon.13 Born on April 8, 1955. Elected to the 106th -110th Congresses; has served since January 3, 1999. In t he 106th Congress, he served as Democratic freshman class president for the period July- December 2000. Committee Assignments * H. Education and the Workforce * H. Science and Technology * H. Foreign Affairs Table 1. Asian Pacific American Members and Delegates in the 58th-110th Congresses (1903-2009) Congress 58th-67th 68th-84th 85th 86th 87th 88th 89th 90th 915t 92nd 93rd
94th
Dates 19031923 19231957 19571959 19591961 19611963 19631965 19651967 19671969 19691971 19711973 19731975 19751977
House Jonah Kuhio Kalanianaolea
Senate —
—
—
Dalip Singh Saund
—
Daniel Ken Inouye Dalip Singh Saund Daniel Ken Inouye Dalip Singh Saund Spark Masayuki Matsunaga
Hiram Leong Fong
Spark Masayuki Matsunaga Patsy Takemoto Mink Spark Masayuki Matsunaga Patsy Takemoto Mink Spark Masayuki Matsunaga Patsy Takemoto Mink Spark Masayuki Matsunaga Patsy Takemoto Mink Spark Masayuki Matsunaga Patsy Takemoto Mink Antonio Borja Won Pat Spark Masayuki Matsunaga Norman Yoshio Mineta Patsy Takemoto Mink Antonio Borja Won Pat
Hiram Leong Fong Hiram Leong Fong Daniel Ken Inouye Hiram Leong Fong Daniel Ken Inouye Hiram Leong Fong Daniel Ken Inouye Hiram Leong Fong Daniel Ken Inouye Hiram Leong Fong Daniel Ken Inouye Hiram Leong Fong Daniel Ken Inouye Hiram Leong Fong Daniel Ken Inouye
Asian Pacific Americans in the United States Congress 95th
19771979
96th
19791981
97th
19811983
98th
19831985
99th
19851987
100th
19871989
101'
19891991
102nd
19911993
103rd
19931995
Daniel Kahikina Akaka Norman Yoshio Mineta Antonio Borja Won Pat Daniel Kahikina Akaka Robert Takeo Matsui Norman Yoshio Mineta Antonio Borja Won Pat Daniel Kahikina Akaka Robert Takeo Matsui Norman Yoshio Mineta FoR5 Iosefa Fiti Sunia Antonio Borja Won Pat Daniel Kahikina Akaka Robert Takeo Matsui Norman Yoshio Mineta Fofi5 Iosefa Fiti Sunia Antonio Borja Won Pat Daniel Kahikina Akaka Ben Garrido Blaz Robert Takeo Matsui Norman Yoshio Mineta Fofi5 Iosefa Fiti Sunia Daniel Kahikina Akaka Ben Garrido Blaz Robert Takeo Matsui Norman Yoshio Mineta Patricia Fukuda Saiki Fofi5 Iosefa Fiti Suniab Ben Garrido Blaz Eni F H Faleomavaega Robert Takeo Matsui Norman Yoshio Mineta Patsy Takemoto Mink Patricia Fukuda Saiki Ben Garrido Blaz Eni F H Faleomavaega Robert Takeo Matsui Norman Yoshio Mineta Patsy Takemoto Mink Eni F H Faleomavaega Jay C. Kim Robert Takeo Matsui Norman Yoshio Mineta Patsy Takemoto Mink Robert Cortez Scott" Robert Anacletus Underwood
Samuel Ichiye Hayakawa Daniel Ken Inouye Spark Masayuki Matsunaga Samuel Ichiye Hayakawa Daniel Ken Inouye Spark Masayuki Matsunaga Samuel Ichiye Hayakawa Daniel Ken Inouye Spark Masayuki Matsunaga Daniel Ken Inouye Spark Masayuki Matsunaga
Daniel Ken Inouye Spark Masayuki Matsunaga
Daniel Ken Inouye Spark Masayuki Matsunaga
Daniel Kahikina Akakac Daniel Ken Inouye Spark Masayuki Matsunaga
Daniel Kahikina Akaka Daniel Ken Inouye
Daniel Kahikina Akaka Daniel Ken Inouye
507
508
Lorraine H. Tong Table 1. Continued
Congress 104th
Dates 19951997
105th
19971999
106th
19992001
107th
20012003
108th
20032005
109th
20052007
110th
20072009
House Eni F H Faleomavaega Jay C. Kim Robert Takeo Matsui Norman Yoshio Minetae Patsy Takemoto Mink Robert Cortez Scott Robert Anacletus Underwood Eni F.H. Faleomavaega Jay C. Kim Robert Takeo Matsui Patsy Takemoto Mink Robert Cortez Scott Robert Anacletus Underwood Eni F.H. Faleomavaega Robert Takeo Matsui Patsy Takemoto Mink Robert Cortez Scott Robert Anacletus Underwood David Wu Eni F.H. Faleomavaega Michael M. Honda Robert Takeo Matsui Patsy Takemoto Mink' Robert Cortez Scott Robert Anacletus Underwood David Wu Eni F.H. Faleomavaega Michael M. Honda Robert Takeo Matsuig Robert Cortez Scott David Wu Eni F.H. Faleomavaega Michael M. Honda Bobby Jindal Doris Okada Matsuih Robert Cortez Scott David Wu Eni F.H. Faleomavaega Mazie Keiko Hirono Michael M. Honda Bobby Jindal Doris Okada Matsuih Robert Cortez Scott David Wu
Senate Daniel Kahikina Akaka Daniel Ken Inouye
Daniel Kahikina Akaka Daniel Ken Inouye
Daniel Kahikina Akaka Daniel Ken Inouye
Daniel Kahikina Akaka Daniel Ken Inouye
Daniel Kahikina Akaka Daniel Ken Inouye
Daniel Kahikina Akaka Daniel Ken Inouye
Daniel Kahikina Akaka Daniel Ken Inouye
Asian Pacific Americans in the United States Congress a b c
d e f g h
509
Del. Jonah Kuhio Kalanianaole died on Jan. 7, 1922. Del. Fofi5 Iosefa Fiti Sunia resigned on Sept. 6, 1988. Sen. Daniel Kahikina Akaka also served in the House in the 101' Congress until May 15, 1990. However, he was appointed to the Senate and was sworn in on May 16, 1990, to fill the vacancy caused by the death of Sen. Spark Masayuki Matsunaga on Apr. 15, 1990. Subsequently, he was elected to the Senate in Nov. 1990. Rep. Robert C. Scott is African American with Filipino heritage. Rep. Norman Yoshio Mineta resigned on Oct. 10, 1995. Rep. Patsy Takemoto Mink died on Sept. 28, 2002. Rep. Robert Takeo Matsui died on January 1, 2005. Rep. Doris Okada Matsui won a special election on March 8, 2005, to fill the vacancy caused by the death of her husband, Rep. Robert Matsui, and was sworn in on March 10, 2005. Although Rep. Robert Matsui was elected to the 109th Congress, he died on Jan.1, 2005.
Table 2. Number of Asian Pacific American Members and Delegates by State and Territory, 58th-110th Congresses (1903-2009) State or Territory California
Number Elected 7
Hawaii
8
Louisiana Oregon Virginia American Samoa Guam
1 1 1 2 3
Name Samuel Ichiye Hayakawa Michael M. Honda Jay C. Kim Robert Takeo Matsui Doris Okada Matsui Norman Yoshio Mineta Dalip Singh Saund Daniel Kahikina Akaka Mazie Keiko Hirono Daniel Ken Inouye Hiram Leong Fong Jonah Kuhio Kalanianaole Spark Masayuki Matsunaga Patsy Takemoto Mink Patricia Fukuda Saiki Bobby Jindal David Wu Robert Cortez Scotta Eni F.H. Faleomavaega Fof6 Iosefa Fifi Sunia Ben Garrido Blaz Robert Anacletus Underwood Antonio Borja Won Pat
a. Rep. Robert C. Scott is African American with Filipino heritage.
Table 3. Number of Asian Pacific American Members and Delegates in the U.S. Congress, 58th-110th Congresses (1903-2009) Congress 58th 59th 60th 61st 62nd 63rd 64th 65th
Years 1903-1905 1905-1907 1907-1909 1909-1911 1911-1913 1913-1915 1915-1917 1917-1919
Total in Congress 1 1 1 1 1 1 1 1
House 1 1 1 1 1 1 1 1
Senate -
510
Lorraine H. Tong Table 3. (Continued)
Congress 66th 67th 68th-84th 85th 86th 87th 88th 89th 90th 91st 92nd 93rd 94th 95th 96th 97th 98th 99th 100th 101st 102nd 103rd 104th 105th 106th 107th 108th 109th 110th a b
c d e
f
Years 1919-1921 1921-1923 1923-1957 1957-1961 1959-1961 1961-1963 1963-1965 1965-1967 1967-1969 1969-1971 1971-1973 1973-1975 1975-1977 1977-1979 1979-1981 1981-1983 1983-1985 1985-1987 1987-1989 1989-1991 1991-1993 1993-1995 1995-1997 1997-1999 1999-2001 2001-2003 2003-2005 2005-2007 2007-2009
Total in Congress 1 1 1 3 3 3 4 4 4 4 5 6 6 7 8 7 7 8 9 7 9 9 8 8 9 7 8 9
House 1 1 1 2 2 1 2 2 2 2 3 4 3 4 5 5 5 6' 6" 5 7C 7d 6 6 7e 5 6f 7
Senate 1 1 2 2 2 2 2 2 2 3 3 3 2 2 2 3 2 2 2 2 2 2 2
Del. Fof6 Iosefa Fiti Sunia resigned on Sept. 6, 1988. Although six Asian Pacific Americans were elected to the House in the 101' Congress, only five served at any one time Representative Patsy Mink (who had previously served in the 89th-94th Congresses) did not become a member of the House again until Sept. 1990, when she was elected to fill the vacancy caused by the resignation of Daniel K. Akaka. Senator Akaka had been appointed to the Senate to fill the vacancy caused by the death of Spark Matsunaga. Rep. Robert C. Scott is African American with Filipino heritage. Rep. Norman Yoshio Mineta resigned on Oct. 10, 1995. Rep. Patsy Takemoto Mink died on Sept. 28, 2002. She was posthumously elected to the 108' Congress on Nov. 5, 2002. Rep. Doris Okada Matsui won a special election on March 8, 2005, to fill the vacancy caused by the death of her husband, Rep. Robert Matsui, and was sworn in on March 10, 2005. Although Rep. Robert Matsui was elected to the 109th Congress, he died on Jan.1, 2005.
Asian Pacific Americans in the United States Congress
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Table 4. Resident Commissioners from the Philippine Islands, 60111-79th Congresses (1907-1946) Congress 60th 615t
Dates 1907-1909 1909-1911
62' 63rd 64th 65th 66th
1911-1913 1913-1915 1915-1917 1917-1919 1919-1921
67th 68th 69th 70th 715t 72" 73rd 74th
1921-1923 1923-1925 1925-1927 1927-1929 1929-1931 1931-1933 1933-1935 1935-1937
75th
1937-1939
76th 77th 78th 79th
1939-1941 1941-1943 1943-1945 1945-1947
Resident Commissioners Benito Y Tuason Legardaa Pablo Ocampoa Benito Y Tuason Legarda Pablo Ocampob Manuel Luis Quezon' Benito Y Tuason Legarda Manuel Luis Quezon Manuel Luis Quezon Manuel Earnshaw Manuel Luis Quezond Manuel Earnshaw Jaime Carlos de Veyra Teodoro Rafael Yangco Jaime Carlos de Veyra Teodoro Rafael Yangcoe Isauro Gabaldod Jaime Carlos de Veyra Isauro Gabaldon Isauro Gabaldon Pedro Guevara Isauro Gabaldon Pedro Guevara Isauro Gabaldong Pedro Guevara Pedro Guevara Camilo Osias Pedro Guevara Camilo Osias Pedro Guevara Camilo Osias Pedro Guevara? Francisco Aan Delgadoh Quintin Parades' Quintin Parades' Joaquin Miguel Elizalde Joaquin Miguel Elizalde Joaquin Miguel Elizalde Joaquin Miguel Elizalde' Carlos Pena Romulom Carlos Pena Romulon
Note: The Philippine Islands were part of territory ceded to the United States by Spain under the Treaty of Paris of December 10, 1898. The Act of July 1902 granted the Philippine Islands the right to elect two Resident Commissioners to the United States. In 1935, the Philippine Islands became the Commonwealth of the Philippines and the number of Resident Commissioners was reduced from two to one. In 1946, the Philippines became fully independent, and the office of the Resident Commissioner was terminated. a Elected Nov. 22, 1907, for a term of two years; granted the privileges of the floor of the House of Representatives, with the right of debate, Feb. 4, 1908. b Term expired Nov. 22, 1909. c Elected for a term of two years beginning Nov. 23, 1909. d Resigned Oct. 15, 1916; vacancy throughout the remainder of 64th Congress. e Term expired Mar. 3, 1920. f Elected for a term of three years beginning Mar. 4, 1920. g Resigned July 16, 1928, having been nominated for election to the Philippine House of Representatives; vacancy throughout the remainder of the 70th Congress. h When the new government of the Commonwealth of the Philippine Islands was inaugurated, the terms of office of the Resident Commissioners of the Philippine Islands expired. Both Resident Commissioners served until Feb. 14, 1936, when a selected successor qualified (48 Stat. 456). Under this law, the number of Resident Commissioners was reduced from two to one.
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j k
l m
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Lorraine H. Tong
Appointed Dec. 21, 1935, to fill vacancy caused by the expiration of the terms of Pedro Guevara and Francisco A. Delgado, due to the new form of government, and took his seat on Feb. 14, 1936. Resigned Sept. 29, 1938. Appointed Sept. 29, 1938, to fill vacancy caused by resignation of Quintin Paredes; service began on Jan. 3, 1939, upon convening of 76th Congress. Resigned Aug. 9, 1944. Appointed to fill vacancy caused by the resignation of Joaquin M. Elizalde, and succeeded him on Aug. 21, 1944. Office of Resident Commissioner terminated on July 4, 1946.
ENDNOTES 1
The designation "Asian Pacific American" is commonly used to identify a person having origins in East Asia, Southeast Asia, or the Indian subcontinent including, for example, Cambodia, China, India, Japan, Korea, Malaysia, Pakistan, the Philippine Islands, Thailand, Vietnam, and the original peoples of Hawaii, Guam, Samoa, or other Pacific Islands. It is also the term used for the Congressional Asian Pacific American Caucus, founded in May 1994, and refers to those who have self-identified themselves as such. In this chapter, the "Asian Pacific American" designation encompasses a wide range of ethnic and national identities, rather than a purely geographic designation. Thus, it does not include those of Australian or New Zealand ancestry, for example. Included in this total number is one Member who is African American with Filipino heritage. As promulgated by the U.S. Office of Management and Budget, the official terms to be used in designating these Americans for federal reporting purposes are "Asians" and "Native Hawaiians and other Pacific Islanders." U.S. Office of Management and Budget, "Revisions to the Standards for the Classification of Federal Data on Race and Ethnicity," Federal Register, vol. 62, no. 210, October 30, 1997, pp. 58782-58790. 2 Sen. Daniel K. Akaka is Native Hawaiian and also Chinese American; Representative Robert Scott (D-VA) is African American with Filipino heritage; Delegate Robert Underwood (D-Guam) is Chamorro and also Hispanic. 3 The Philippine Islands were part of territory ceded to the United States by Spain under the Treaty of Paris of December 10, 1898. The Act of July 1902 granted the Philippine Islands the right to elect two Resident Commissioners to the United States Congress. Historically, U.S. territories were granted nonvoting Delegates to the Congress prior to statehood. Congress distinguished between the territories acquired after the SpanishAmerican War and those bound for statehood. Thus, Congress provided for "resident commissioners" to the United States from Puerto Rico and the Philippines. Resident Commissioners were not accorded the same status as nonvoting Delegates, although, it should be noted, the rights of Delegates have changed over time. Resident Commissioners from the Philippines were granted floor privileges in the House with the right of debate on February 4, 1908. However, they did not have the right to vote or to serve on standing committees. When the Philippine Islands became a self-governing commonwealth, in transition to full sovereignty in 1935, the number of Resident Commissioners was reduced from two to one. On July 14, 1946, the Philippines became fully independent and the office of Resident Commissioner was terminated (P.L. 73-127).
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For the purposes of this study, a separate table listing Resident Commissioners from the Philippines is included at the end of the chapter. 4 Rep. Doris Matsui won a special election on March 8, 2005, to fill the vacancy caused by the death of her husband Rep. Robert T. Matsui (D-CA), who had been elected to the 109th Congress, on January 1, 2005. 5 In the 10781 Congress, when the Democrats gained the majority in the Senate in June 2001, Senator Inouye became chair of the Committee on Indian Affairs. He also assumed the chair of the Committee on Appropriations Subcommittee on Defense, and the chair of the Committee on Commerce, Science, and Transportation Subcommittee on Communications. Senator Inouye was the first chair of the Senate Select Committee on Intelligence from 1976 to 1977, and was the Senate chair of the Secret Military Assistance to Iran and Nicaragua Opposition Select Committee (Iran-Contra Committee) from 1987 to 1988. From 1987 to 1994, he was chairman of the Select Committee on Indian Affairs. Senator Inouye has also chaired the following Senate subcommittees: the Senate Appropriations Subcommittees on the District of Columbia (1971-1972), Foreign Operations (1973-1980, 1987-1988), and Defense (1989-1994); the Senate Commerce Subcommittees on Foreign Commerce and Tourism (1971-1976), Merchant Marine and Tourism (1977-1980), and Communications (1987-1994); and the Intelligence Subcommittee on Budget Authorization (1979-1980). 6 Also in June of 2001, Sen. Akaka became chairman of three subcommittees: the Senate Armed Services Subcommittee on Readiness and Management Support, the Energy and Natural Resources Subcommittee on National Parks, Historic Preservation and Recreation, and the Governmental Affairs Subcommittee on International Security, Proliferation, and Federal Services. 7 Rep. Mineta was chair of the House Public Works and Transportation Committee (19931994). Prior to chairing the full committee, he chaired the Subcommittees on Public Buildings and Grounds (1977-1978), Oversight and Review (1979-1980), Aviation (19801989), and Surface Transportation (1990-1992). 8 Sen. Matsunaga was chair of the Senate Finance Subcommittee on Tourism and Sugar (1977-1980). 9 In the 105th Congress, Representative Jay C. Kim (R-CA), the first Korean American to be elected to Congress, chaired the House Transportation and Infrastructure Subcommittee on Public Buildings and Economic Development. 10 Rep. Wu is the first Chinese American to represent a district on the U.S. mainland. 11 For more information on CAPAC, see [http://www.honda.house.govicapac]. 12 Asterisks indicate current committee assignments. 13 Rep. Wu is the first Chinese American to represent a district on the U.S. mainland.
In: Congress of the U.S: Commitees, Rules and Procedures ISBN 978-1-60456-416-7 Editor: Sela G. Thomason © 2009 Nova Science Publishers, Inc.
Chapter 27
CONGRESSIONAL NOMINATIONS TO U.S. SERVICE ACADEMIES: AN OVERVIEW AND RESOURCES FOR OUTREACH AND MANAGEMENT* R. Eric Petersen SUMMARY Members of Congress are authorized by law to nominate candidates for appointment to four U.S. service academies. These schools are the U.S. Military Academy, the U.S. Naval Academy, the U.S. Air Force Academy, and the U.S. Merchant Marine Academy. The fifth service academy, the U.S. Coast Guard Academy, does not require a congressional nomination for appointment. These institutions prepare college-age Americans to be officers of the United States uniformed services. Upon graduation, service academy graduates are commissioned as officers in the active or reserve components of the military, the merchant marine, or the U.S. Coast Guard for a minimum of five years. The nomination of constituents to one of the service academies can provide Members of Congress with the opportunity to perform community outreach and other representational duties. In some states and congressional districts, nominations are highly competitive. Others are less competitive, and some offices do not receive expressions of interest from enough applicants to fill the number of nominations allocated. Consequently, some congressional offices might need to dedicate considerable staff resources to the selection process to identify qualified candidates, whereas others can incorporate service academy nominations alongside other constituent service work such as casework. The nomination authorities, number of appointments, and criteria establishing the qualifications of potential service academy appointees are set by statute and policies established by each academy. No laws or regulations govern congressional nomination processes, as long as nominations are submitted by deadlines established by the academies *
This is an edited, excerpted and augmented edition of a CRS Report for Congress publication, Order Code RL33213, dated May 18, 2007.
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and comply with chamber ethics rules. Each congressional office with nominating authority has may develop its own process for managing its service academy nominations. Each office has the discretion to determine how to administer the decision-making process. Some offices handle nominations internally, assigning the task of managing applicant files and developing nominations recommendations to a staff member. Other offices assign staff to oversee nominations-related activities but delegate the screening and development of nomination recommendations to a volunteer panel, which could be charged with screening or interviewing applicants. This chapter describes statutory requirements for allocating congressional nominations to service academies. It also identifies the qualifications that must be met by potential nominees, as established by statute and each academy. Finally, sample documents that could be used by congressional offices at various stages of the nomination selection process are included. These documents provide basic information and can be customized to fit the specific needs of individual office policies. Members of Congress are authorized by law to nominate candidates for appointment to four U.S. service academies. These schools are the U.S. Military Academy (USMA), West Point, NY; the U.S. Naval Academy (USNA), Annapolis, MD; the U.S. Air Force Academy (USAFA), Colorado Springs, CO; and the U.S. Merchant Marine Academy (USMMA), Kings Point, NY. The fifth service academy, the U.S. Coast Guard Academy (USCGA), New London, CT, does not require a congressional nomination for appointment. These institutions provide college-age Americans with a tuition-free, four year undergraduate education and prepare them to be officers of the U.S. uniformed services. Upon graduation, service academy graduates are commissioned as officers in the active or reserve components of the military, the merchant marine, or the U.S. Coast Guard for a minimum of five years. The nomination of constituents to one of the service academies can provide Members of Congress with the opportunity to perform community outreach and other representational activities. In some states and congressional districts, nominations are highly competitive. Others are less competitive, and some offices do not receive expressions of interest from enough applicants to fill the number of nominations allocated. Consequently, some congressional offices may need to dedicate considerable staff resources to the selection process to identify qualified candidates, whereas others can incorporate service academy nominations alongside other constituent service activities such as casework.1
CONGRESSIONAL APPROACHES The nomination authorities, number of appointments, and criteria establishing the qualifications of potential service academy appointees are set in statute and policies established by each academy. No laws or regulations govern congressional nomination processes, as long as nominations are submitted by deadlines established by the academies and comply with chamber ethics rules. Each congressional office with nominating authority has the opportunity to develop its own process for managing its service academy nominations. Some congressional offices have adapted and modified a "whole person" approach similar to that used by USMA, USNA, and USAFA to develop their nomination decisions. This approach evaluates several broad components of a potential nominee's qualifications for
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appointment, including character, scholarship, leadership, physical aptitude, medical fitness, and motivation. Other congressional offices reach decisions through the consideration of a candidate's academic preparation, extracurricular participation, community service, and the recommendations of those familiar with their activities in those areas. In addition to establishing criteria for nomination decisions, each congressional Member office may determine how to administer the decision-making process. Some offices handle nominations internally, assigning the task of managing applicant files and developing nomination recommendations to a staff member. Other offices assign staff to oversee nomination-related activities but delegate the screening and development of nomination recommendations to a volunteer panel, which could be charged with screening or interviewing applicants. A nominations review panel could include educators, service academy alumni, representatives of veterans' groups, and other community leaders from a Member's state or district. The decision to employ one approach or another could be based on the number of nomination applications received, the volume of other activity in a congressional office, the availability of qualified volunteers to sit on a nominations board, and other unique considerations related to individual states and congressional districts. The use of volunteers in congressional offices is governed by regulations issued by the Select Committee on Ethics in the Senate2 and by the Committees on House Administration and Standards of Official Conduct in the House.3 Statutory requirements regarding allocations of congressional nominations to service academies are described in the next section. A subsequent section describes qualifications of potential nominees to service academies established by statute and each academy. Finally, this chapter includes sample documents that may be used by congressional offices at various stages of the nomination selection process. These documents, which are based on information and examples found on service academy and congressional websites, provide basic information and can be customized to fit the specific needs of individual office policies. The documents include • •
• •
an initial contact letter that a congressional office could send to high schools in its state or district, an information sheet and application that could be sent to those potential applicants who respond to the contact letter or contact a congressional office on their own initiative, an instruction sheet for preparing an application for congressional nomination, and an application for congressional nomination.
APPOINTMENT CRITERIA Appointment and nomination criteria are established by statute and regulations issued by each academy. Three service academies, USMA, USNA, and USAFA, are housed in the military branches of the Department of Defense (DOD). USMMA is governed by regulations issued by the Department of Transportation. USCGA, which does not require a congressional nomination for admission, is an organizational unit of the Department of Homeland Security.
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Department of Defense Academies Three service academies, USMA, USNA, and USAFA, are overseen by the three military branches of the DOD. Allocations for nomination by Members of Congress of prospective appointees to these academies are established by statute and are substantially similar for each academy.4 The number of positions subject to congressional nomination includes • • • • • • •
10 from each state, 5 of whom are nominated by each Senator from that state; 5 from each congressional district, nominated by the Representative from the district; 5 from the District of Columbia, nominated by the Delegate from the District of Columbia; 2 from the U.S. Virgin Islands, nominated by the Delegate from the U.S. Virgin Islands; 5 from Puerto Rico, nominated by the Resident Commissioner from Puerto Rico;5 2 from Guam, nominated by the Delegate from Guam; and 1 from American Samoa, nominated by the Delegate from American Samoa.
When a congressionally nominated academy position is vacant, a Member of Congress is entitled to nominate 10 persons for possible appointment. As DOD service academy cadets who received a congressional nomination graduate, or as their appointments are otherwise terminated, the nominating Member office can make new nominations. Typically, one appointment per DOD academy per Senator and Representative is available annually. In some years, however, a congressional office that is allocated five positions in each academy will have the opportunity to make nominations that could lead to two appointments to an academy. Appointments made by a predecessor are considered part of the quota of a newly elected Member. Appointments made for candidates whose Representative changes as a result of legislative redistricting are considered as part of the new Member's allocation.6 Nominees may be submitted in three categories: without ranking, with a principal candidate and nine ranked alternates, or with a principal candidate and nine unranked alternates.7 When the Member specifies a principal candidate, that individual will be appointed to a DOD academy as long as he or she meets all other admission criteria. If the principal candidate is disqualified, the service academies will appoint the first fully qualified, ranked alternate, if specified by the Member. In circumstances where Members do not specify a principal candidate or ranked alternates, one individual from among the Member's nominees who is found to be fully qualified will be appointed by the academies to serve as cadets.
Noncongressional DOD Service Academy Appointment Authorities All qualified nominees not selected for appointment through the congressional nomination process are considered qualified alternates for the purposes of selection by other noncongressional nominating or appointing authorities. In his capacity as commander in chief of the military, the President is the appointing authority for all service academy admissions. The President makes direct appointments in several military-affiliated categories, including children of career military personnel, deceased or disabled veterans, military or civilian
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personnel in missing status, and Medal of Honor recipients. Other nominating authorities include the Vice President;8 the Secretaries of the Army, Navy, and Air Force to their respective academies; the superintendents of each academy to their respective academies; the Governor of Puerto Rico; and the resident representative of the Northern Mariana Islands. Table 1. Distribution of Non-Congressional Nominations to Department of Defense Service Academies, by Authority Nominating Authority Presidenta
Number and Type One hundred children of members of the armed forces who have eight years of continuous active service or are credited with eight years of reserve duty service, retirement status, or who are deceased with one of those statuses. The President is also authorized to appoint an unlimited number of children whose parents have been awarded the Medal of Honor. Vice President' Five, at large. Service Secretary' Eighty-five enlisted members of the regular service of the branch led by the Secretary. Eighty-five enlisted members of the reserve components of the branch led by the Secretary. Twenty honor graduates of schools designated as honor schools by any military branch, and from members of the Secretary's service Reserve Officer Training Corps (ROTC). One hundred-fifty qualified alternates who received ranked congressional nominations but were not appointed. Service academy superintendent Fifty, at large. Governor, Puerto Rico One, who must be a native of Puerto Rico. Resident representative, Commonwealth One, who must be from the Commonwealth. of the Northern Mariana Islands Notes: These nomination authorities apply to nominations for appointment to USMA, USNA, and USAFA. They do not apply to nominations for appointment to USMMA, which has no noncongressional nominations, or the USCGA, which requires does not require nominations. a In his capacity as commander in chief of the military, the President is the appointing authority for all service academy admissions. b If there is no Vice President, then the President Pro Tempore of the Senate makes those nominations. c The service secretary for USMA is the Secretary of the Army; USNA, Secretary of the Navy; and USAFA, Secretary of the Air Force. In addition to their numerical categorical nominating authority, military branch secretaries are also authorized, when the annual quota of cadets is not met, to appoint any qualified applicant who did not receive a nomination from any other nominating authority.
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Table 2. Distribution of Seats Available for Congressional Nomination to the United States Merchant Marine Academy, by State State Alabama Alaska American Samoa Arizona Arkansas California Colorado Connecticut Delaware District of Columbia Florida Georgia Guam Hawaii Idaho Illinois Indiana Iowa Kansas
Seats 4 1 1 3 2 19 4 4 1 4 10 5 1 2 2 9 3 4 3
State Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New Mexico New Jersey New York New Hampshire North Carolina North Dakota
Seats 2 4 2 5 5 7 3 3 3 2 2 2 2 6 15 2 6 1
State Ohio Oklahoma Oregon Pennsylvania Puerto Rico Rhode Island South Carolina South Dakota Tennessee Texas Utah Vermont U.S. Virgin Islands Virginia Washington West Virginia Wisconsin Wyoming
Seats 8 2 3 10 1 2 4 1 4 13 2 1 1 5 5 2 4 1
Source: 46 CFR 310.53.
Vice presidential nominations are made at large, and applicants may apply for those through each DOD service academy. The service secretaries nominate individuals who serve as enlisted members of the regular and reserve components of their respective military branches, as well as participants in the reserve officer training corps of the service they oversee. The superintendents of each academy nominate candidates from the country at large. The governor of Puerto Rico and the representative of the Commonwealth of the Northern Mariana Islands make nominations from among applicants in their respective jurisdictions. The distribution of nominations by noncongressional authorities is listed in Table 1. In addition to appointments made through nomination authorities, 65 cadets per academy are appointed in order of merit established by examination from among the children of armed forces personnel who were killed in action, who are missing in action, and who had or have a 100% service-connected disability contracted in active service.
United States Merchant Marine Academy Members of Congress nominate individuals for appointment to USMMA.9 The number of positions in an entering class at this service academy are allocated by regulation issued by the Secretary of Transportation. Under the regulation, each Senator, Representative, Delegate, and the Resident Commissioner from Puerto Rico may nominate 10 candidates to compete for admission to the academy. Individual applicants from states are appointed to the academy in
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proportion to the state's representation in Congress. The regulation allocates four vacancies to nominees from the District of Columbia and one vacancy each to nominees from Puerto Rico, Guam, Virgin Islands, and America Samoa. The allocation of positions by state and territory is listed in Table 2. The regulation states that nominating officials may select individuals for nomination by any method they wish, including a screening examination.10
United States Coast Guard Academy Procedures for appointments to USCGA are established by regulations issued by the Secretary of Homeland Security.11 No congressional nomination is required for admission to this service academy.
APPLICANT QUALIFICATIONS To qualify for an appointment to any service academy, an applicant must meet the following statutory criteria: • • • •
American citizenship; at least 17 years of age and not yet 23 years old on July 1 of the year the applicant would enter an academy (25 years old for USMMA); unmarried; and not pregnant, and without legal obligation to support children or other dependents.
In addition to statutory requirements, each academy has established academic, physical, and leadership requirements for admission. Candidates for appointment to each academy must • • • • • •
demonstrate comprehensive academic preparation;12 demonstrate leadership in athletics and other extracurricular activities; take the SAT-I, or the ACT Assessment (ACT); be in good physical and mental health; pass a comprehensive medical examination; and pass a physical aptitude examination.
Specific requirements in each of the academic, physical, and leadership categories vary by academy and are revised regularly. In preparation for making appointments, a congressional office might review each academy's most recent class profile for specific information on scores and class rankings and activities of recently admitted students. Some of this information is available on the academies' websites.13 In addition to requesting a nomination from a Member of Congress or another nominating official, an individual seeking appointment to a service academy must separately apply to the service academies to which he or she seeks to be appointed. Each academy requires the submission of a preliminary application to initiate the process. Preliminary application materials are available from the academies' websites listed in Table 3. Acceptance
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of a service academy appointment requires at least a nine-year service obligation, including four years at an academy and five years of active duty service. Table 3. Websites for Preliminary Application to United States Service Academies Academy U.S. Military Academy U.S. Naval Academy U.S. Air Force Academy U.S. Merchant Marine Academy U.S. Coast Guard Academy14
Admissions Website [http://admissions.usma.edu] [http://www.usna.edu/admissions] [http:/academyadmissions.com] [http://www.usmma.edu/admissionsidefault.htm] [http://admissions.uscga.edu/i2e/admissions]
APPENDIX 1. SAMPLE INITIAL CONTACT LETTER15 Dear High School Senior: One of my favorite duties as a Member of Congress is nominating [state's/town's/district's] best and brightest young men and women to our nation's service academies. If you are a highly motivated, well-rounded, successful student, I invite you to consider the unique opportunity to develop physically, ethically, and intellectually while building a foundation for an exciting, challenging, and rewarding career as a military officer in the service of our nation. [State/Town/District]-area students traditionally are very successful at the academies, and I'm pleased to do my part to ensure that the community continues to provide some of the next generation's outstanding military leaders. A congressional nomination is required for students wishing to enter the U.S. Military Academy, West Point, NY; the U.S. Naval Academy, Annapolis, MD; the U.S. Air Force Academy, Colorado Springs, CO; and the U.S. Merchant Marine Academy, Kings Point, NY. Successful applicants will have a broad academic background, the ability to pass a physical aptitude test, and strong leadership potential. An applicant must also be a U.S. citizen, a high school graduate between the ages of 17 and 23, unmarried, have no dependents, and be of high moral character. Acceptance of a service academy appointment requires at least a nineyear service obligation, including four years at an academy and five years of active duty service. If you are interested in being considered for a service academy nomination, you must apply to me at my office by [date] to be considered for the class entering the service academies in July, [year]. Please contact my [Washington/district/state] office, at [phone/email/address], for further information and to request a nomination application. Thank you for your interest in the service academies. Sincerely, [Member] United States [Representative/Senator]
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APPENDIX 2. SAMPLE INFORMATION SHEET16 [Representative/Senator] Service Academy Nomination Procedure and Basic Fact Sheet for [year] Admission An appointment to the U.S. Military Academy, U.S. Naval Academy, U.S. Air Force Academy, or U.S. Merchant Marine Academy is a distinct and rare honor. Acceptance of an academy appointment requires at least a nine-year service obligation, including four years at an academy and five years of active duty service. Eligibility. To be eligible for appointment, you must be an American citizen, at least 17 years old and not yet 23 years old on July 1 of the year you enter an academy (25 years old for United States Merchant Marine Academy). Further, you must not be married or pregnant, and you must not have any legal obligation to support children or other dependents. To apply for a nomination through my office, you must also be a legal resident of [state/district]. If you are not certain that your legal domicile is in the [state/district], call my office and request an address verification. Nomination. The nomination process is very competitive. I urge you to apply for a nomination from me as well as [Representative and Senator/Senators] from our state who can nominate qualified applicants to the four service academies. If you are interested in attending the U.S. Military Academy, U.S. Naval Academy, and U.S. Air Force Academy, you may also qualify for nomination through other sources, including •
• •
President George W. Bush, who nominates children of career military personnel, deceased or disabled veterans, military or civilian personnel in missing status, and Medal of Honor recipients; Vice President Richard B. Cheney, who nominates five individuals from across the United Sates per year; and The Secretary of each military department, Army, Navy and Air Force, who nominates members of regular military, reserve components, and participants in the ROTC.
Further information regarding application procedures for these nominations is available through each academy's website, listed below. Applying for more than one nomination increases your chances of securing a nomination. More than one nomination, however, is neither required nor of assistance in gaining an appointment. If another authority nominates you, please notify me so that I may allow other candidates the opportunity for nomination. Evaluation Criteria. The academies consider evidence of character, scholarship, leadership, physical aptitude, medical fitness, personal goals, and motivation in performing each nominee's "whole-person" evaluation. These are also the criteria I use to determine nominations. Specific criteria in the "whole person" evaluation include character, scholarship, leadership, physical aptitude, medical fitness, and motivation.
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Character. Absolutely critical in the course of evaluating a candidate is a positive determination of the candidate's character. Absence of good moral character is cause for disqualification. Candidates are considered to have good moral character unless evidence exists to suggest otherwise. Scholarship. Each element of a candidate's academic record is carefully evaluated by a service academy's admissions board. The elements evaluated include a complete high school record (and college record, when applicable), class standing, and either the SAT-1 or ACT scores. All strengths and weaknesses in a candidate's academic background are taken into account. Leadership. Participation and achievement in organized athletics, student body and class government, clubs and class extracurricular activities, scouting, boys or girls state, and church or other community-related activities demonstrate evidence of leadership potential. Candidates who have found it necessary to work to provide family support are considered to have demonstrated desirable leadership potential. Physical Aptitude. Measuring strength, endurance, agility, and coordination, the academies' fitness tests are designed to determine each candidate's readiness to undertake the rigorous athletic and physical education program at one of the academies. Each academy has its own test requirements. Results of the examination are evaluated, assigned a numerical score, and included in the whole-person evaluation by West Point. The Air Force, Naval, and Merchant Marine academies evaluate the results on a pass-or-fail basis. Medical Fitness. A candidate who meets minimum scholastic standards will be scheduled to take a service academy qualifying medical examination at a military or civilian contract facility near the candidate's home. Although medical qualification standards vary among the academies, only one exam is required. Different tests may be necessary, however, depending upon the academy. Scheduling and evaluation of the exam are arranged by the Department of Defense Medical Examination Review Board (DODMERB). Candidates who have questions about their medical exam results should direct them to: DODMERB 8031 Edgerton Drive Suite 132 USAF Academy, Colorado 80840-2200 (719) 472-3562 Medical scheduling and evaluation are time-consuming processes, especially if consultation, re-testing, or corrective action is required. The process may take from six weeks to four months. Motivation. Motivation is an intangible quality and difficult to evaluate; however, since it is most frequently the factor that determines an appointee's success or failure at a service academy, I make every effort to gauge a candidate's motivation. An attempt to measure motivation may be made through observation of the candidate's interest level in attending an academy and serving as an officer in the armed forces. Motivation may also be measured through an evaluation of correspondence, personal contacts, and care with which application materials are prepared.
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Applicant Evaluation by Service Academies Each academy uses a questionnaire to make an initial assessment of an applicant's potential for appointment. The results of this evaluation are provided by each academy to Members of Congress to assist them in screening their applicants. Soon after the applicant returns the questionnaire, the admissions office will provide the applicant with an evaluation of the applicant's demonstrated ability to meet admissions standards. An applicant who meets the standards is declared a candidate; those who do not meet the standards at that point may later submit additional test scores or information to the academy for re-evaluation. The applicant must provide the following information: academic standardized test scores (ACT, SAT-I), rank in class and grade point average, Social Security number, and participation in high school extracurricular activities. Be sure to complete a pre-candidate questionnaire for each academy in which you are interested. Service academy websites are: Military Academy Naval Academy Air Force Academy Merchant Marine Academy [http://www.usmma.edu Address correspondence regarding your application for a nomination to [Member] [Address] [Telephone] [E-mail] Deadline [Date] is the deadline for applications.
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APPENDIX 3. SAMPLE APPLICATION INFORMATION17 Dear ––––––––: Each year, [Representative/Senator] receives many inquiries from [District/State] students who wish to attend a military service academy. One of the application requirements of all of the United States service academies (except for the United States Coast Guard Academy) is nomination by a government official. The nominating official is usually a Member of Congress. The military service academies (Army, Navy and Air Force) also accept nominations from other government officials. If you are interested in attending one of these academies, I urge you to apply for a nomination from me as well as the other nomination sources: • •
• •
[Appropriate Representative/Senator(s)]; President George W. Bush, who nominates children of career military personnel; deceased or disabled veterans; military or civilian personnel in missing status; and Medal of Honor recipients; Vice President Richard B. Cheney, who nominates five individuals from across the United Sates per year; and The Secretary of each military department, Army, Navy and Air Force, who nominates members of regular military, reserve components, and participants in the ROTC.
Information regarding application procedures for these nominations is available through each academy's website, listed below. Applying for more than one nomination increases your chances of securing a nomination. More than one nomination, however, is neither required nor of assistance in gaining an appointment. If another authority nominates you, please notify me so that I may allow other candidates the opportunity for nomination. Please note that the United States Merchant Marine Academy only accepts congressional nominations. Candidates for a service academy nomination should recognize that each academy has specific deadlines which must be met if an application is to be successful. Academy websites provide information about deadlines and other application requirements. Also please note that [Congressman/Senator] generally considers applications only from [District/State] residents and children of [District/State] residents. Here are the steps to follow in seeking a nomination from [Representative/Senator] to the service academies: Contact [Representative/Senator] in writing at [his/her] [Washington/district/state] office, expressing your interest in receiving a nomination to one or more of the academies. Your letter should include your • name; • permanent mailing address; • telephone number;
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temporary mailing address, if applicable; high school; and year of graduation
A nomination is only one of the requirements for matriculation at one of our nation's service academies. You must also apply directly to each service academy individually. At the same time you contact this office, you should also request admissions information from each academy to which you plan to apply, by writing to them at the following addresses: United States Naval Academy USNA Candidate Guidance Office Annapolis, MD 21402-5018 [http://www.usna.edu/Admissions] United States Air Force Academy Admissions Office USAF Academy, CO 80840-5025 [http://academyadmissions corn] United States Military Academy Admissions Office 600 Thayer Road West Point, NY 10996-9902 [http://admissions.usma.edu] United States Merchant Marine Academy Office of Admissions Kings Point, NY 11024-1699 [http://www.usmma.edu/admissions/default.htm] To be considered for nomination, you will need to submit the following to [Representative's/Senator's] [Washington/district/state] office in order to complete your nomination file: • • • •
a nomination application a copy of your high school transcripts, including your GPA, the size of your class, and your ranking within that class an official copy of your SAT or ACT scores 3 letters of recommendation: one from a teacher, principal, or guidance counselor; one from an employer, coach, or extracurricular faculty advisor; and from any person of your choice who is not related to you.
Please forward the requested information at your earliest convenience. We do ask that you submit information as you compile it, instead of waiting until you have everything together. The deadline for submission of all required documentation is {date}. Please contact [Member staff] in the [Washington/district/state] office at [phone/email] if you have any questions or if [he/she] can be of assistance in any way during this process. Applying for Admission to the United States Coast Guard Academy
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R. Eric Petersen
As noted above, the Coast Guard Academy (USCGA) is the only United States service academy that does not require a nomination for appointment. For information about the USCGA, you may write to: United States Coast Guard Academy Admissions Office New London, CT 06320 [http://admissions.uscga.edu/i2e/admissions] Please forward the requested information at your earliest convenience. We do ask that you submit information as you compile it, instead of waiting until you have everything
APPENDIX 4. SAMPLE NOMINATION APPLICATION18 [Representative/Senator] APPLICATION FOR NOMINATION FOR APPOINTMENT TO THE UNITED STATES SERVICE ACADEMIES Please complete and return this form. Type or print neatly. Fill out all information completely. Any missing information may adversely affect your chances for nomination. Full Name (Last, First, Middle) Date of Birth Place of Birth Permanent Mailing Address (Number, Street, City, State, and Zip)
Phone Number Temporary Address (If different from above) Social Security Number Mother's/Father's/Legal Guardian's Name (Address if different from above)
School Principal or Academic Dean Date of Graduation
Names and Addresses of all High Schools and/or Colleges Attended
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Month and year of graduation Month and year you are requesting nomination Are you a United States citizen? (Please circle) Yes No Are you a [State/District] Resident? Yes No If not, please state connection: Which of the academies are you interested in attending? Please number according to your preference. You will be considered only for those academies for which you have indicated an interest, and in the order in which you have ranked them below. AIR FORCE_____MERCHANT MARINE_____NAVAL_____MILITARY_____
Have you requested that a pre-candidate file be initiated for you at any of the academies? If so, which one(s)?
ACADEMIC HISTORY AND ACCOMPLISHMENTS Latest cumulative grade point average: _____on a scale of_____ Rank in class: _____in a class of_____ (#of students) as of_____ (date) SAT Scores Date(s) Taken Verbal Math
ACT Scores Date(s) Taken English Mathematics Reading Science Composite
You do not need to take both tests, but you must provide officials copies of either your SAT or ACT scores. If you have already taken either examination, you should contact the College Entrance Examination Board for SAT scores, or ACT for ACT scores, and request that a copy of your scores be sent directly to [congressional office code assigned by each group]. If you have not yet taken these examinations, please list [congressional office code assigned by each group] as one of the recipients of your scores at that time. Please answer all questions completely (use another sheet of paper if necessary):
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R. Eric Petersen AWARDS AND HONORS (be specific):
SCHOOL RELATED EXTRACURRICULAR ACTIVITIES (Please indicate years of participation. 1=Ninth Grade, 2=Sophomore, 3=Junior, 4=Senior):
COMMUNITY ACTIVITIES (please indicate duration and hours per week):
WORK EXPERIENCE (please indicate duration and hours per week):
MILITARY EXPERIENCE (e.g. JROTC or Civil Air Patrol):
In a one-page essay on a separate sheet, describe why you wish to attend a service academy. If you feel that there are special conditions or circumstances that we should take into consideration, please elaborate briefly (e.g. an extremely difficult course load, a traumatic event that affected your performance).
ENDNOTES 1
See CRS Report RL33209, Casework in a Congressional Office: Background, Rules, Laws, and Resources, by R. Eric Petersen. 2 U.S. Congress, Senate, Select Committee on Ethics, Senate Ethics Manual, S. Pub. 108-1, 108th Cong., Pt sess. (Washington: GPO, 2003), pp. 113-115. The document is available on the Web at [http://ethics.senate.gov/downloads/pdffiles/manual.pdf]. 3 U.S. Congress, House, Committee on House Administration, Member's Congressional Handbook, available at [http://cha.house.goviservicesimemberhandbook.htm]; U.S. Congress, House, Committee on Standards of Official Conduct, House Ethics Manual, 102nd Cong., 2nd sess. (Washington: GPO, 1992), pp. 197-199, and 209; and U.S. Congress, House, Committee on Standards of Official Conduct, Ethics Manual for Members, Officers, and Employees of the U.S. House of Representatives, available at [http://www.house.goviethicsiethicschap5.html]. 4 Appointment, number, and territorial distribution information are codified at 10 U.S.C. 9342, USAFA; 10 U.S.C. 6954, USNA; and 10 U.S.C. 4342, USMA. 5 In addition to the congressional appointees from Puerto Rico, the statutes provide for the nomination by the Governor of Puerto Rico of one individual who is a native of Puerto Rico. 6 10 U.S.C. 9347, USAFA; 10 U.S.C. 6955, USNA; and 10 U.S.C. 4347, USMA. 7 No data are publicly available regarding the number of offices that choose ranked or unranked options.
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If the vice presidency is vacant, then the President pro tempore of the Senate makes those nominations. 9 46 U.S.C. Appendix — Shipping, sec. 1295b. 10 46 CFR 310.53. There are no presidential, vice presidential, or service-connected nominations to USMMA. 11 14 U.S.C. 182. 12 The extent and nature of recommended high school preparation varies by academy. Detailed preparation and admissions information is available from each academy's website: USMA [http://admissions.usma.edu/FAQs/faqs_admission.cfm#COURSES]; USNA [http://www.usna.edu/Admissions/faq.htm#qualifications]; USAFA [http:// academyadmissions.com/admissions/preparation/index.php]; and USMMA [http://www. usmma.edu/admissionsifacts/scholasticrequirements.htm]. 13 USMA [http://admissions.usma.edu/MoreInfo/classprofile.cfm] USNA [http://www.usna. edu/Admissions/documents/PlebeClassProfileClass2010.pdf]; and USAFA [http:// academyadmissions.com/news.php#profile]. Class profile information for USMMA is not available from the schools' websites. 14 The United States Coast Guard Academy does not require congressional nominations. 15 This is a sample document and is not intended to be definitive. It is based on information and examples found on service academy and congressional websites. Any information may be deleted or modified as appropriate to individual Member office policies and procedures. 16 This is a sample document and is not intended to be definitive. It is based on information and examples found on service academy and congressional websites. Any information may be deleted or modified as appropriate to individual Member office policies and procedures. 17 This is a sample document, and is not intended to be definitive. It is based on information and examples found on service academy and congressional websites. Any information may be deleted or modified as appropriate to individual Member office policies and procedures. 18 This is a sample document, and is not intended to be definitive. It is based on information and examples found on service academy and congressional websites. Any information may be deleted or modified as appropriate to individual Member office policies and procedures.
In: Congress of the U.S: Commitees, Rules and Procedures ISBN 978-1-60456-416-7 Editor: Sela G. Thomason © 2009 Nova Science Publishers, Inc.
Chapter 28
POINTS OF ORDER IN THE CONGRESSIONAL BUDGET PROCESS* James V. Saturno SUMMARY The Congressional Budget Act of 1974 (Titles I-IX of P.L. 93-344, as amended) created a process that Congress uses each year to establish and enforce the parameters for budgetary legislation Enforcement is accomplished through the use of points of order, and through the reconciliation process. Points of order are prohibitions against certain types of legislation or congressional actions. These prohibitions are enforced when a Member raises a point of order against legislation that may violate these rules when it is considered by the House or Senate. This chapter summarizes points of order under the Congressional Budget Act of 1974, as amended, as well as related points of order established in the budget resolution adopted by Congress in 2007 (S.Con.Res. 21, 110th Congress), the Rules of the House for the 110th Congress, and the Budget Enforcement Act of 1990 (P.L. 101-508). In addition, it describes how points of order are applied and the processes used for their waiver in the House and Senate.
INTRODUCTION The Congressional Budget Act of 19741 established the basic framework that is used today for congressional consideration of budget and fiscal policy. The act provided for the adoption of a concurrent resolution on the budget (budget resolution) as a mechanism for coordinating congressional budgetary decision making This process supplements other House and Senate procedures for considering spending and revenue legislation by allowing Congress to establish and enforce parameters with which those separate pieces of budgetary legislation *
This is an edited, excerpted and augmented edition of a CRS Report for Congress publication, Order Code 97-865 GOV, dated July 2, 2007.
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James V. Saturno
must be consistent. The parameters are established each year when Congress adopts the budget resolution, setting forth overall levels for new budget authority, outlays, revenues, deficit, and debt. These overall spending levels are then allocated to the various committees in the House and Senate responsible for spending legislation. The overall levels and allocations are then enforced through the use of points of order, and through implementing legislation, such as that enacted through the reconciliation process.2 Points of order are prohibitions against certain types of legislation or congressional actions. These prohibitions are enforced when a Member raises a point or order against legislation that is alleged to violate these rules when it is considered by the House or Senate. Points of order are not self-enforcing. A point of order must be raised by a Member on the floor of the chamber before the presiding officer can rule on its application, and thus for its enforcement. Although the congressional budget process encompasses myriad procedures dealing with spending, revenue, and debt legislation, this paper focuses only on that portion of the process that stems from the Congressional Budget Act. The tables below list the points of order currently included in the Congressional Budget Act (Table 1), as well as related points of order established in other measures. These other measures include the FY2008 budget resolution (Table 2), H.Res. 6 (110th Congress), adopting the rules of the House for the 110th Congress (Table 3), and the Budget Enforcement Act of 1990 (Table 4) that pertain to the consideration, contents, or implementation of the budget resolution. Points of order are typically in the form of a provision stating that "it shall not be in order" for the House or Senate to take a specified action or consider certain legislation that is inconsistent with the requirements of the Budget Act. Other provisions of the act, formulated differently, establish various requirements or procedures, particularly concerning the contents and consideration of the budget resolution or reconciliation legislation. These provisions, however, are not typically enforced through points of order, and are not included here.3 As amended through the Balanced Budget Act of 1997, points of order in the Congressional Budget Act are permanent. None of the provisions listed in Table 1 is scheduled to expire, although several points of order have limited applicability or have been rendered moot by the expiration of limits they were intended to enforce.4 The freestanding point of order protecting the Social Security trust fund in the House established in the Budget Enforcement Act (Table 4) is also permanent. However, other points of order established under recent budget resolutions have various sunset provisions or limited application (see Table 2 for current examples).
APPLICATION OF POINTS OF ORDER Most points of order in the Budget Act apply to measures as a whole, as well as to motions, amendments, or conference reports to those measures. When a point of order is sustained against consideration of some matter, the effect is that the matter in question falls. The application of points of order in the House is clarified in Section 315 of the Budget Act. This provision states that for cases in which a reported measure is considered pursuant to a special rule, a point of order against a bill "as reported" would apply to the text made in order by the rule as original text for the purpose of amendment or to the text on which the
Points of Order in the Congressional Budget Process
535
previous question is ordered directly to passage. In this way, no point of order would be considered as applying (and no waiver would be required) if a substitute resolved the problem. In addition, The Rules of the House for the 110th Congress include a provision further specifying that for measure considered pursuant to a special rule, points of order under Title III of the Budget Act apply regardless of whether the measure considered is actually reported from committee. Under Rule XXI, clause 8, points of order apply to the form of a measure recommended by the reporting committee where the statute uses the term "as reported" (in the case of a measure that has been reported), the form of the measure made in order as an original text for the purpose of amendment, or the form of the measure on which the previous question is ordered directly to passage. The effect of a point of order in the Senate is clarified under Section 312(t) which provides that when a point of order against a measure is sustained, the measure is recommitted to the appropriate committee for any further consideration. This allows the Senate an opportunity to remedy the problem that caused the point of order. Section 312(d) is also designed to provide the Senate with the opportunity to remedy a problem that would provoke a point of order. This provision states that a point of order may not be raised against a measure, amendment, motion, or conference report while an amendment or motion that would remedy the problem is pending. Section 312(e) clarifies that any point of order that would apply in the Senate against an amendment also applies against amendments between the Houses. Further, this section also states that the effect would "be the same as if the Senate had disagreed to the amendment." This would allow the Senate to keep the underlying measure pending, and thus retain the ability to resolve their differences with the House. This provision therefore means that any resolution of the differences between the House- and Senate-passed versions of a measure, whether it is in the form of a conference report or not, must adhere to the provisions of the Budget Act. There are exceptions to the general principle of applying points of order to measures as a whole. The most salient is probably Section 313, the so-called Byrd Rule. This section applies to matter "contained in any title or provision" in a reconciliation bill or resolution (or conference report thereon), as well as any amendment or motion. If a point of order is sustained under this section, only the provision in question is stricken, or the amendment or motion falls.5 Several of the points of order in the Senate established under recent budget resolutions have been written so that they apply to individual provisions rather than the measure as a whole, in the manner provided in Section 313(e) of the Budget Act. The point of order against emergency spending designations (Section 204(a)(5) of S.Con.Res. 21 (110th Congress)) further provides that, if sustained, the effect of this point of order is that a provision making an emergency designation shall be stricken, and may not be offered as an amendment from the floor.
PROCEDURES FOR WAIVING POINTS OF ORDER The Congressional Budget Act sets forth certain procedures, under Section 904, for waiving points of order under the act. These waiver procedures apply in the Senate only. Under these procedures, a Senator may make a motion to waive the application of a point of
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order either preemptively before it can be raised, or after it is raised, but before the presiding officer rules on its merits.6 In the Senate, most points of order under the Budget Act may be waived by a vote of at least three-fifths of all Senators duly chosen and sworn (60 votes if there are no vacancies) (see Table 1). Three-fifths waiver requirement was first established for some points of order under the Balanced Budget and Emergency Deficit Control Act of 1985. Beginning with the Balanced Budget Act of 1997, this super-majority threshold was applied to several additional points of order on a temporary basis. These points of order are identified in Section 904(c)(2), and the three-fifths requirement is currently scheduled to expire September 30, 2017.7 The three-fifths threshold has also been required for the Senate to waive the application of many of the points of order established in recent budget resolutions, such as the PAYGO point of order. As with other provisions of Senate rules, Budget Act points of order also may be waived by unanimous consent. In the House, Budget Act points of order are typically waived by the adoption of special rules, although other means (such as unanimous consent or suspension of the rules) may also be used. A waiver may be used to protect a bill, specified provision(s) in a bill, or an amendment from a point of order that could be raised against it. Waivers may be granted for one or more amendments even if they are not granted for the underlying bill. The House may waive the application of one or more specific points of order, or they may include a "blanket waiver," that is, a waiver that would protect a bill, provision, or amendment from any point of order. Table 1. Points of Order Under the Congressional Budget Act of 1974 Section
Description
Application
301(g)
In the Senate, prohibits consideration of a budget resolution using more than one set of economic assumptions. In the Senate, prohibits consideration of a budget resolution that would decrease the Social Security surplus in any fiscal year covered by the resolution. Prohibits the consideration of any measure within the jurisdiction of the House or Senate Appropriations Committees that provides new budget authority for a fiscal year until the committee makes the suballocation required by Section 302(b). In the House, after action on a budget resolution is completed, prohibits consideration of legislation providing new budget authority for any fiscal year that would cause the applicable allocation of
Budget resolution, amendment, or conference report. Budget resolution, amendment, motion, or conference report. Bill, joint resolution, amendment, motion, or conference report.
301(i)
302(c)
302(f)(1)
Bill, joint resolution, amendment, or conference report.
Senate Waiver votea Simple majority
Three-fifths*
Three-fifths*
n/a
Points of Order in the Congressional Budget Process new budget authority made pursuant to Section 302(a) or (b) for the first fiscal year or for the total of all fiscal years to be exceeded.b,c 302(f)(2)(A In the Senate, after a budget ) resolution is agreed to, prohibits consideration of legislation (from any committee other than the Appropriations Committee) that would cause the applicable allocation of new budget authority or outlays made pursuant to Section 302(a) for the first fiscal year or for the total of all fiscal years to be exceeded. 302(f)(2)(B In the Senate, after a budget ) resolution has been agreed to, prohibits consideration of legislation from the Appropriations Committee that would cause the applicable suballocation of new budget authority or outlays made pursuant to Section 302(b) to be exceeded. 303(a) Prohibits consideration of legislation providing new budget authority, an increase or decrease in revenues, an increase or decrease in the public debt limit, new entitlement authority (in the Senate only), or an increase or decrease in outlays (in the Senate only) for a fiscal year until a concurrent resolution for that fiscal year has been agreed to.b.d 303(c) In the Senate, prohibits consideration of any appropriations measure until a concurrent resolution for that fiscal year has been agreed to, and an allocation has been made to the Committee on Appropriations under Section 302(a).d 305(b)(2) In the Senate, prohibits consideration of nongermane amendments. 305(c)(4) In the Senate, prohibits consideration of nongermane amendments to amendments in disagreement to a budget resolution (Section 310(e) applies this prohibition to amendments in disagreement to reconciliation legislation as well).
537
Bill, joint resolution, amendment, motion, or conference report.
Three-fifths*
Bill, joint resolution, amendment, motion, or conference report.
Three-fifths*
Bill, joint resolution, amendment, motion, or conference report.
Simple majotitye
Bill, joint resolution, amendment of conference report.
Simple majotitye
Amendment.
Three-fifths
Amendment in Three-fifths disagreement to a budget resolution (or to reconciliation legislation).
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James V. Saturno Table 1. Continued
Section
Description
Application
305(d)
In the Senate, prohibits a vote on a budget resolution unless the figures contained in the resolution are mathematically consistent. Prohibits consideration of matters within the jurisdiction of the House or Senate Budget Committee except when it is a measure reported by the committee, or the committee is discharged from further consideration of the measure, or an amendment to such a measure. In the House, prohibits consideration of an adjournment resolution for more than three calendar days during July until the House has approved all regular appropriations bills for the upcoming fiscal year. Prohibits the consideration of amendments to reconciliation legislation that would increase the deficit either by increasing outlays or reducing revenues, except that in the Senate a motion to strike a provision shall always be in order.f In the Senate, prohibits consideration of nongermane amendments to reconciliation legislation or to amendments in disagreement to reconciliation (by reference to Sections 305(b)(2) and 305(c)(4)).g In the House, prohibits consideration of an adjournment resolution of more than three calendar days during July until the House has completed action on any required reconciliation legislation. Prohibits the consideration of reconciliation legislation that contains recommendations with respect to Social Security.
Budget resolution or conference report.
306
309
310(d)
310(e)
310(f)
310(g)
311(a)(1)
Senate Waiver votea Simple majority
Bill, resolution, amendment, motion, or conference report.
Three-fifths
Resolution.
n/a
Amendment.
Three-fifths
Amendment.
Three-fifths
Resolution.
n/a
Bill, joint resolution, amendment, motion, or conference report. In the House, prohibits consideration of Bill, joint legislation that would cause new budget resolution, authority or outlays to exceed or revenues amendment, to fall below the levels set forth in the motion, or budget resolution for the first fiscal year or conference report.
Three-fifths*
n/a
Points of Order in the Congressional Budget Process
311(a)(2)
311(a)(3)
312(b)
312(c)
313
401(a)
for the total of all fiscal years for which allocations are made pursuant to Section 302 (a).b,h In the Senate, prohibits consideration of legislation that would cause new budget authority or outlays to exceed the levels set forth in the budget resolution for the first fiscal year, or revenues to fall below the levels set forth in the budget resolution for the first fiscal year or for the total of all fiscal years for which allocations are made pursuant to Section 302(a). In the Senate, prohibits consideration of legislation that would cause a decrease in Social Security surpluses or an increase in Social Security deficits relative to the level set forth in the budget resolution for the first fiscal year or for the total of all fiscal years for which allocations are made pursuant to Section 302(a). In the Senate, prohibits the consideration of legislation that would cause any of the discretionary spending limits specified in Section 251(c) of the Balanced Budget and Emergency Deficit Control Act of 1985, as amended, to be exceeded.i In the Senate, prohibits consideration of a budget resolution that provides for a deficit in excess of the maximum deficit amount specified in the Balanced Budget and Emergency Deficit Control Act of 1985, as amended, for the first fiscal year set forth in the resolution.j In the Senate prohibits consideration of extraneous provisions in reconciliation legislation.k
539
Bill, joint resolution, amendment, motion, or conference report.
Three-fifths*
Bill, joint resolution, amendment, motion, or conference report.
Three-fifths*
Bill, joint resolution, amendment, motion, or conference report.
Three-fifths*
Budget resolution, amendment, or conference report.
Three-fifths*
Reconciliation bill or resolution (any title or provision), amendment, motion, or conference report. Prohibits consideration of legislation Bill, joint providing new contract authority, resolution, borrowing authority, or credit authority not amendment, limited to amounts provided in motion, or appropriations acts.l conference report.
Three-fifths
Simple majority
540
James V. Saturno Table 1. Continued
Section
Description
Application
401(b)
Prohibits consideration of legislation providing new entitlement authority that is to become effective during the current fiscal year.j Prohibits consideration of legislation reported by a committee unless the committee has published a statement by CBO on the direct costs of federal mandates. Prohibits consideration of legislation that would increase the direct costs of federal intergovernmental mandates by an amount greater than the thresholds specified in Section 424(a). In the House, prohibits consideration of a rule or order that would waive the application of Section 425.
Bill, joint resolution, amendment, motion, or conference report.
425(a)(1)
425(a)(2)
426
a
b
c
Senate Waiver votea Simple majority
Bill or joint resolution.
Simple majoritye
Bill, joint resolution, amendment, motion, or conference report.
Simple majoritye
Resolution, rule, or order.
n/a
This column indicates the type of Senate vote (as provided under Section 904 of the Congressional Budget Act) necessary to approve a motion to waive the point of order listed. The term "simple majority" means that the provision may be waived by a majority vote of the Members voting, a quorum being present. The term "three-fifths" means that a motion to waive the provision must be approved by three-fifths of the Members "duly chosen and sworn." For those provisions, which are marked with an asterisk (*), the three-fifths requirement is scheduled to expire on September 30, 2017, (as identified under Section 904(e) and extended under S.Con.Res. 21 (110th Congress)), reverting to simple majority after that time. See footnote 7 in the text of this chapter for details on previous extensions. The same voting requirement (either simple majority or three-fifths) would also apply to a vote to appeal a ruling of the chair connected with a point of order. The term "n/a" is used for those provisions that apply in the House only. Section 302(g) of the Congressional Budget Act (known as the Pay-As-You-Go exception) provides that Sections 302(f)(1), 303(a) (after April 15), and 311(a), as it applies to revenues, shall not apply in the House to legislation (bill, joint resolution, amendment, or conference report) if for each fiscal year covered by the most recently agreed to budget resolution such legislation would not increase the deficit if added to other changes in revenues or direct spending provided in the budget resolution pursuant to pay-as-you-go procedures included under Section 301(b)(8). In the 109th Congress, the House adopted a provision in H.Res. 248 establishing that during the 109th Congress there would be a separate point of order in the Committee of the Whole against a motion to rise and report a general appropriations bill if that bill, as amended, were in a breach of the appropriate 302(b) allocation. This provision was subsequently readopted in the 110th Congress as a separate order of the House under section 511(a)(5) of H.Res. 6 (110th Congress).
Points of Order in the Congressional Budget Process d
e
f
g
h
i
j
k
l
541
Section 303(b) sets forth exceptions to the prohibitions under 303(a). In the House, the point of order does not apply to (1) advance discretionary new budget authority that first become available for the first or second fiscal year after the first fiscal year covered in a budget resolution; (2) revenue legislation that is to first become effective after the first fiscal year covered in a budget resolution; (3) general appropriations bills after May 15; or (4) any bill or joint resolution unless it is reported by a committee (see also table note b above for an additional exception to 303(a) provided under Section 302(g)). It is not clear how the provision in House Rule XXI, clause 8, that points of order under Title III of the Budget Act "shall operate without regard to whether the measure concerned has been reported from committee" would apply to this section. In the Senate, the point of order does not apply to advance appropriations for the first or second fiscal year after the first fiscal year covered in a budget resolution. The application of this point of order to appropriations bills in the Senate is provided specifically under Section 303(c), which requires an allocation be made to the Senate Appropriations Committee under Section 302(a) as well as agreement on a budget resolution. The points of order under Sections 303(a), 303(c), 425(a), and 425(b) were made subject to the three-fifths threshold under Section 403(b) of H.Con.Res. 95 (109" Congress). Section 205 of S.Con.Res. 21 (110th Congress) provides that Section 403 of H.Con.Res. 95 (109th Congress shall no longer apply in the Senate. In the House, the impact of amendments is measured in relation to the levels in the reconciliation measure. In the Senate, the impact is measured in relation to the levels provided in the reconciliation instructions which relate to the measure. Section 204(g) of H.Con.Res. 290 (106th Congress) provides that for purposes of interpreting Section 305(b)(2) of the Budget Act, an amendment is not germane if it contains predominately precatory language (e.g., Sense of the Senate provisions). Section 311(c) provides that 311(a) shall not apply in the House to legislation that would not cause a committee's spending allocation under 302(a) to be exceeded. Section 251(c) of the Balanced Budget and Emergency Deficit Control Act of 1985, as amended, expired at the end of FY2002. Currently no maximum deficit amounts are specified under the Balanced Budget and Emergency Deficit Control Act of 1985, as amended. For more information on this provision (known as the "Byrd Rule"), see CRS Report RL30862, Budget Reconciliation Procedures: The Senate's "Byrd Rule," by Robert Keith. Section 401(d) provides that Sections 401(a) and 401(b) shall not apply to new spending authority described in those sections that flow from (1) a trust fund established under the Social Security Act or any other trust fund for which 90% or more of its expenditures are supported by dedicated revenues; (2) certain wholly owned or mixed ownership government corporations; or (3) gifts or bequests made to the United States for a specific purpose.
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James V. Saturno Table 2. Points of Order Under S.Con.Res. 21 (110th Congress) (Budget Resolution for FY2008)
Section
Description
Application
201(a)
In the Senate, prohibits consideration of any direct spending or revenue legislation that would increase or cause an on-budget deficit for the period of the current fiscal year and the five ensuing fiscal years or the period of the current fiscal year and the ten ensuing fiscal years.b In the Senate, prohibits consideration of reconciliation legislation that would increase or cause a deficit (or decrease a surplus) for the period of the current fiscal year and the five ensuing fiscal years or the period of the current fiscal year and the ten ensuing fiscal years. In the Senate, prohibits the consideration of a measure that would cause a net increase in deficits in excess of $5 billion in any of the four 10-year periods beginning in 2018 through 2057.c In the Senate, prohibits consideration of provisions that include an emergency designation as allowed under Section 204(a)(2) of this budget resolution to provide for exemption in the Senate from budget enforcement mechanisms under Sections 302 and 311 of the Congressional Budget Act of 1974, Sections 201, 203, and 207 of this budget resolution.d In the Senate, prohibits the consideration of advance appropriations, except as specified in this budget resolution.e In the Senate, prohibits the consideration of a measure or provisions that would exceed any of the discretionary limits specified in
Bill, joint resolution, amendment, or conference report.
202(a)
203(b)
204(a)(5)
206(a)
207(a)
Senate Waiver Votea Three-fifths
Bill, Three-fifths resolution, amendment, amendment between the houses, or conference report.
Bill, joint resolution, amendment, motion, or conference report.
Three-fifths
Bill, resolution, amendment, or conference report.
Three-fifths
Bill, joint resolution, amendment, motion, or conference report.
Three-fifths
Bill, joint resolution, amendment, motion, or conference report.
Three-fifths
Points of Order in the Congressional Budget Process
209(a)
a
b
c
d
e
f
Section 207(b), including any adjustments made under the provisions of Section 207(c).f In the Senate, prohibits the consideration of appropriations legislation that includes a change in a mandatory program producing net costs as defined in Section 209(b).
Appropriations measure, amendment, motion, or conference report.
543
Three-fifths
This column indicates the type of Senate vote necessary to approve a motion to waive the point of order listed. The term "three-fifths" means that a motion to waive the provision must be approved by three-fifths of the Members "duly chosen and sworn." The same voting requirement would also apply to a vote to appeal a ruling of the chair connected with the point of order. This point of order supercedes earlier, similar points of order provided in H.Con.Res. 67 (104th Congress), H.Con.Res. 68 (106th Congress), and H.Con.Res. 95 (108th Congress). This section is scheduled to expire on September 30, 2017. Paragraph 5 of this section specifically excludes the budget resolution or and legislation that affects or continues the full funding of the deposit insurance guarantee commitment in effect on the date of enactment of the Budget Enforcement Act of 1990. Paragraph 6 of this section provides that the point of order would not apply in cases in which direct spending and revenue legislation when taken together with other direct spending and revenue legislation enacted since the beginning of the calendar year (and not accounted for in the baseline) result in a net decrease in the deficit (or increase in the surplus), although deficit reduction legislation enacted pursuant to reconciliation instructions may not be used in such calculations. This point of order supercedes an earlier, similar point of order provided in H.Con.Res. 95 (108th Congress). This section is scheduled to expire on September 30, 2017. This section concerns the use of emergency designations, but does not establish any point of order against the spending itself. It also requires committees reporting legislation that includes provisions designated as emergency to include in the accompanying written report a justification for the designation. Section 204(b) provides for the use of emergency designations to exempt in the House provisions so designated from budget enforcement mechanisms under Titles Ill and IV of the Congressional Budget Act. The section does not, however, establish a point of order similar to that of the Senate to enforce or limit the use of such a designation. The point of order in the Senate supercedes earlier, similar points of order provided in H.Con.Res. 68 and H.Con.Res. 290 (both 106th Congress), H.Con.Res. 95 (108th Congress), Section 14007(b)(2) of P.L. 108-287, and H.Con.Res. 95 (109th Congress). No expiration date is provided for the current point of order. This section limits the consideration in the Senate of advance appropriations, except that advance appropriations may be provided for FY2009-FY2010 for those accounts specified in the joint explanatory statement of the conference report for this budget resolution (H.Rept. 110-153) in an aggregate amount not to exceed $25.158 billion, and for the Corporation for Public Broadcasting. This point of order supercedes an earlier, similar point of order provided in H.Con.Res. 95 (109th Congress). Section 206(b) establishes a similar limit for the House, but does not explicitly establish a point of order to enforce that limit or otherwise prohibit the consideration of measures that breach it. Section 207(d) establishes similar adjustments for the House, but does not establish a point of order to enforce a discretionary spending limit.
544
James V. Saturno Table 3. Points of Order Under H.Res. 6 (110' Congress) (Rules of the House of Representatives, 110' Congress)
Rule and clause XXI, clause 7
XXI, clause 10
Description In the House, prohibits consideration of a budget resolution that includes reconciliation instructions that would provide for an increase in the deficit (or decrease in the surplus) for the period comprising the current fiscal year and the five fiscal years beginning with the fiscal year that ends in the following calendar year or the period comprising the current fiscal year and the ten fiscal years beginning with the fiscal year that ends in the following calendar year. In the House, prohibits consideration of any direct spending or revenue legislation that would have the net effect of increasing the deficit (or reducing the surplus) for the period comprising the current fiscal year and the five fiscal years beginning with the fiscal year that ends in the following calendar year or the period comprising the current fiscal year and the ten fiscal years beginning with the fiscal year that ends in the following calendar year.
Application Budget resolution, amendment, or conference report.
Bill, joint resolution, amendment, or conference report.
Table 4. Point of Order Under P.L. 101-508 (Budget Enforcement Act of 1990) Section 13302(a)
Description In the House, prohibits consideration of legislation that would provide for a net increase in Social Security benefits or decrease in Social Security taxes in excess of 0.02% of the present value of future taxable payroll for a 75-year period, or in excess of $250,000,000 for the first five- year period after it becomes effective.a
Application Bill, joint resolution, amendment, or conference report.
Notes: This point of order provision is a freestanding provision of subtitle C of the Budget Enforcement Act of 1990 (Title XIII of the Omnibus Budget Reconciliation Act of 1990). a Section 13302(b) provides that the point of order would not apply to legislation that reduces Social Security taxes in excess of the threshold amounts if these reductions are offset by equivalent increases in medicare taxes.
Points of Order in the Congressional Budget Process
545
ENDNOTES 1
The Congressional Budget Act (Titles I-IX of P.L. 93-344) has been amended on a number of occasions since its enactment. The most salient of the modifications has been as a result of the Balanced Budget and Emergency Deficit Control Act of 1985 (P.L. 99-177, also known as Gramm-Rudman-Hollings or GRH); The Balanced Budget and Emergency Deficit Control Reaffirmation Act of 1987 (P.L. 100-119); The Budget Enforcement Act of 1990 (Title XIII of the Omnibus Budget Reconciliation Act of 1990, P.L. 101-508); Title XIV of the Omnibus Budget Reconciliation Act of 1993 (P.L. 103-66); and Title X of the Balanced Budget Act of 1997 (P.L. 105-33). 2 The reconciliation process is an optional procedure set forth in Section 310 of the Congressional Budget Act. First used in 1980, reconciliation is a two-step process triggered when the budget resolution includes instructions to one or more committee(s) directing them to recommend changes in revenue or spending laws necessary to achieve the overall levels agreed to. The recommendations are then considered in one or more reconciliation measures under expedited procedures. Certain features of the reconciliation process are enforced by points of order that are included in this chapter. For more on the reconciliation process generally, see CRS Report RL33030, The Budget Reconciliation Process: House and Senate Procedures, by Robert Keith and Bill Heniff Jr. 3 For example, the prohibition against motions to recommit concurrent resolutions on the budget in the House under Section 305(a)(2) of the act is typically not counted as a separate point of order. Likewise, the requirement under Section 308(a) of the act for reports on legislation to include cost estimates is not formulated as a point of order, although the House has deemed it necessary to formally waive the provision on occasion. 4 The expiration of the provisions of the Balanced Budget and Emergency Deficit Control Act at the end of FY2002 has rendered moot a number of points of order. For example, points of order provided in the Congressional Budget Act to allow the Senate to enforce discretionary spending limits (Section 312(b)) or maximum deficit amounts (Section 312(c)) have been rendered moot because no statute currently specifies such a limit or amount. 5 Section 313(d) provides a special procedure for further consideration of a measure should a point of order under this section be sustained against a provision in a conference report. 6 In the case of points of order under Section 313 of the Budget Act (and by extension, points of order under Sections 204 and 206 of S.Con.Res. 21 (110th Congress), as well as a point of order under Section 209 of S.Con.Res. 21(110' Congress)), a single point of order may be raised against several provisions. The Presiding Officer may sustain the point of order "as to some or all of the provisions," and a motion to waive the point of order may, likewise, be made concerning some or all of the provisions against which the point of order was raised. 7 As originally provided in Title X of the Balanced Budget Act of 1997, the three-fifths requirement expired on September 30, 2002. The Senate subsequently adopted S.Res. 304 on October 16, 2002, renewing the three-fifths requirement for all of the points of order identified in Section 904(c)(2) (except for Section 302(f)(2)(B)) through April 15, 2003. The three-fifths requirement (including for Section 302(f)(2)(B)) was renewed through September 30, 2008, under Section 503 of H.Con.Res. 95 (108th Congress),
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James V. Saturno extended through September 30, 2010, under Section 403 of H.Con.Res. 95 (109th Congress), and is currently extended through September 30, 2017, under Section 205 of S.Con.Res. 21(110' Congress).
In: Congress of the U.S: Commitees, Rules and Procedures ISBN 978-1-60456-416-7 Editor: Sela G. Thomason © 2009 Nova Science Publishers, Inc.
Chapter 29
APPROPRIATIONS SUBCOMMITTEE STRUCTURE: HISTORY OF CHANGES FROM 1920-2007* James V. Saturno SUMMARY This chapter details the evolution of the House and Senate Appropriations Committees' subcommittee structure from the 1920s to the present. In 1920, the House adopted a change in its rules to consolidate jurisdiction over all appropriations in the Appropriations Committee. After the enactment of the Budget and Accounting Act of 1921, the House reorganized its Appropriations Committee by establishing for the first time a set of subcommittees to consider appropriations bills based on the administrative organization of the executive branch. The Senate followed suit in 1922, and the two chambers have continued under that basic organizational approach since that time. The evolution of the modern Appropriations subcommittee structure can be divided into four eras. The first era, stretching roughly from the initial reorganization in the 1920s until the end of the Second World War, was marked by stability. Most of the changes in Appropriations structure resulted from combining bills (e.g., the Treasury Department bill with the Post Office Department bill beginning in 1924), although one new bill (and subcommittee) was created when the appropriations bill for the Department of Labor was split off from the Departments of State, Justice, Commerce, and Labor bill in 1939. The second era, from the end of the Second World War through 1970, saw multiple changes. During this period, Congress attempted to keep pace with executive branch reorganization (e.g., creation of subcommittees to consider appropriations for the new Departments of Defense in 1947 and Transportation in 1967), and changing national priorities (e.g., creation of a separate appropriations bill, and later subcommittee, for foreign operations). The third era, from 1971 through 2003, was marked by a renewed stability. Although this era saw many changes in the overall committee structures of the House and Senate, the *
This is an edited, excerpted and augmented edition of a CRS Report for Congress publication, Order Code RL31572, dated January 31, 2007.
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James V. Saturn
structure of the Appropriations subcommittees in both chambers remained mostly unchanged until 2003. Since 2003, there have been major changes in organization involving nearly every subcommittee. In 2003, both the House and Senate Appropriations Committees merged their subcommittees on Transportation and Treasury and created a new subcommittee to consider appropriations for the newly created Department of Homeland Security. In 2005, both chambers undertook major reorganizations, eliminating three subcommittees in the House and one in the Senate. This reorganization, however, left the two chambers with differing subcommittee jurisdictions, and in 2007 the two Appropriations Committees reorganized again to reestablish parallel subcommittees.
INTRODUCTION Article I, Section 9 of the U.S. Constitution provides that "No money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law." The Constitution does not, however, prescribe any specific structure or process for making appropriations. The committee structure established by Congress assigns a prominent role to the Appropriations Committees of the House and Senate for both the development of appropriations legislation and oversight over budget execution. The Appropriations Committees, in turn, have created a system of subcommittees designed to facilitate their ability to carry out these tasks. The number and jurisdictions of these subcommittees has evolved to meet changing needs and circumstances. For example, reorganization has been undertaken in order to adjust to a new executive branch department. Although reorganization of subcommittee jurisdiction in the House and Senate Appropriations Committees was not formally part of the legislation creating a new Department of Homeland Security (DHS), it was frequently discussed as a possible adjunct reform.1 Under such a proposal, the subcommittee structure of the Appropriations Committees in both the House and Senate was to be reorganized so that appropriations for the various agencies proposed to be consolidated into a new DHS could likewise be consolidated.2 After the legislation establishing the new department was signed into law, the chairman of the House Appropriations Committee announced that a new subcommittee would indeed be established in the House.3 This modification of subcommittee structure affected eight of the existing subcommittees and was one of the most extensive reorganizations of the Appropriations Committees since the 1920s. Shortly thereafter, a similar change was made in the Senate Appropriations Committee. Reorganization can also be undertaken in order to adapt to changes in congressional priorities. At the start of the 109th Congress, the House and Senate undertook a second major change in subcommittee structure. This reorganization affected 10 subcommittees in the House, eliminating three, and eight subcommittees in the Senate, eliminating one.
CONSOLIDATION AND INITIAL STABILITY, 1920-1946 By the end of the First World War the idea that the budgetary process should be more centralized gained prominence, and ultimately resulted in passage of the Budget and
Appropriations Subcommittee Structure
549
Accounting Act of 1921.4 In anticipation of the more centralized executive budget system provided under the act, the House also changed its rules to require that all appropriations be considered by the Appropriations Committee.5 During the late 19th century, congressional rules had provided that jurisdiction over certain general appropriations bills to committees other than the House and Senate Appropriations Committees.6 Notably, the appropriations bills for the District of Columbia, Indian affairs, Agriculture Department, Army, Navy, Post Office Department, and rivers and harbors (i.e., public works) were considered by the appropriate legislative committees. In addition, the Bureau of the Budget, newly established under the Budget and Accounting Act, recommended that appropriations bills be reorganized along administrative lines, with appropriations for salaries and expenses being carried in the same bill as funding for programs and activities administered by a department. This arrangement had previously existed only in the Department of Agriculture appropriations bill. The House Appropriations Committee adopted the bureau's concept and reorganized the structure of general appropriations bills and its subcommittees so extensively that only the structure of the Agriculture bill remained essentially unchanged. Prior to this reorganization, appropriations bills (and subcommittees) tended to be organized along topical lines. For example, the military activities of the War Department were considered in appropriations bills reported by the Military Affairs Committee, and the activities of the Corps of Engineers were considered in River and Harbor appropriations bills reported by the Commerce Committee. The salaries and contingent expenses for the civilian administration of the department, however, were carried in the Legislative, Executive, and Judicial bill, which was within the jurisdiction of the Appropriations Committee. A similar division existed for most departments, and was true even for agencies whose appropriations were wholly within the jurisdiction of the Appropriations Committee. Funding for the activities of agencies as disparate as the Interstate Commerce Commission, the Coast Guard, and the Bureau of Mines were carried in the Sundry Civil bill, which was frequently the largest of the general appropriations bills. Nevertheless, their salaries and expenses were generally funded in the Legislative, Executive, and Judicial bill. After its reorganization, the House Appropriations Committee comprised the following subcommittees: 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27.
Ag