Is congress "the broken branch"? is congress "the broken branch"?

Boston University Law Review

Volumn 89, Issue 2, 2009, Pages 357-369

  Mayhew, David R ^a  

^a YALE UNIVERSITY   (United States)

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EID: 67649586062     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (94)

1. 1 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 200 (J. P. Mayer ed., George Lawrence trans., Anchor Books 1969) (1835).
2. 2 MARK TWAIN, FOLLOWING THE EQUATOR: A JOURNEY AROUND THE WORLD 99 (1897).
3. 3 2 ALBERT BIGELOW PAINE, MARK TWAIN: ABIOGRAPHY 724 (1912).
4. 4 See MR. SMITH GOES TO WASHINGTON (Columbia Pictures Corp. 1939).
5. 5 The fictional and braggadocious southerner, Senator Claghorn, was a popular radio persona in the 1940s, and was the model for the Warner Brothers cartoon character, Foghorn Leghorn. See JOHN DUNNING, ON THE AIR: THE ENCYCLOPEDIA OF OLD-TIME RADIO 268 (1998).
6. 6 As an example of its growth, Congress passed appropriations bills including more than $16.5 billion for earmarks in fiscal year 2008. Office of Management and Budget, Earmarks in 2008 Appropriations Bills, http://earmarks.omb.gov/2008-appropriations-home.html (last visited Feb. 7, 2009).
7. 7 See, e.g., A Harvest of Disgrace; The Farm Bill, ECONOMIST, May 24, 2008, at 46, 46; David E. Sanger, BUSH SIGNS FARM BILL OVER SOME REPUBLICAN PROTESTS, CHI. TRIB., May 14, 2002, at 10.
8. 8 See, e.g., Charles Babington and Mike Allen, Congress Passes Schiavo Measure; Bush Signs Bill Giving U. S. Courts Jurisdiction in Case of Fla. Woman, WASH. POST, Mar. 21, 2005, at Al (reporting the rushed passage of a bill giving federal courts the ability to overturn a Florida court decision allowing the removal of the brain-damaged Schiavo's feeding tube).
9. 9 See Richard Morin and Dan Balz, Confidence in GOP Is at New Low in Poll, WASH. POST, May 17, 2006, at Al.
10. 10 Lydia Saad, Congressional Approval Hits Record-Low 14%, GALLUP, July 16, 2008, http://www.gallup. com/poll/108856/ Congressional-Approval-Hits-RecordLow-14.aspx (stating that the current low is the lowest congressional approval rating in the thirty-fouryear Gallup Poll history of asking the question).
11. 11 See, e.g., Jay Fitzgerald, Bailout Showdown; Porked-Up Bill Faces New House Vote, BOSTON HERALD, Oct. 3, 2008, at 20.
12. 12 MATTHEW SOBERG SHUGART and JOHN M. CAREY, PRESIDENTS AND ASSEMBLIES: CONSTITUTIONAL DESIGN AND ELECTORAL DYNAMICS 131-66 (1992).
13. 13 Cf. id. at 156 fig.8.1 (displaying how U. S. Presidents have weak legislative powers compared to presidents in other democratic regimes).
14. 14 Id. at 165.
15. 15 Id.
16. 16 See, e.g., Gwen Ifill, Clinton Recruits 3 Presidents to Promote Trade Pact, N. Y. TIMES, Sept. 15, 1993, at B12 (describing the support of two Republican and two Democratic presidents for the North America Free Trade Agreement).
17. 17 Cf. Cato Center for Trade Policy Studies, Free Trade, Free Markets: Rating Congress, http://www.freetrade.org/congress (last visited Feb. 9, 2009) (tracking voting records on trade issues for the 105th through 110th Congresses).
18. 18 See James Bennet, Warm Globe, Hot Politics, N. Y. TIMES, Dec. 11, 1997, at Al.
19. 19 See Joby Warrick, Administration Signs Global Warming Pact, WASH. POST, Nov. 13, 1998, at A26.
20. 20 Daniel Shaviro, The Minimum Wage, the Earned Income Tax Credit, and Optimal Subsidy Policy, 64 U. CHI. L. REV. 405, 406-07 (1997).
21. 21 DAVID R. MAYHEW, AMERICA'S CONGRESS: ACTIONS IN THE PUBLIC SPHERE, JAMES MADISON THROUGH NEWT GINGRICH 228 (2000).
22. 22 See id. at 228-30.
23. 23 See supra notes 2-3 and accompanying text.
24. 24 David R. Mayhew, Actions in the Public Sphere, in THE LEGISLATIVE BRANCH 63, 93-94 (Paul J. Quirk and Sarah A. Binder eds., 2005). For a guide to the Annenberg survey, see THE LEGISLATIVE BRANCH, supra, app. at 551-53.
25. 25 Mayhew, supra note 24, at 93-94.
26. 26 Id. at 94.
27. 27 Id.
28. 28 Id.
29. 29 Id.
30. 30 See generally Bruce Ackerman, The New Separation of Powers, 113 HARV. L. REV. 633 (2000) (arguing that a model of "constrained parliamentarianism" offers a better path to constitutional development than the current American approach).
31. 31 Edmund Burke is commonly associated with an argument for obeying the ingrained traditions of a political system. See David A. Strauss, Common Law Constitutional Interpretation, 63 U. Cm. L. REV 877, 891-94 (1996).
32. 32 Popular election for senators was established in 1913 through the ratification of the Seventeenth Amendment to the Constitution. U. S. Const, amend XVII.
33. 33 For an extended argument that the case is weak, see generally DAVID R. MAYHEW, DIVIDED WE GOVERN: PARTY CONTROL, LAWMAKING, AND I NVESTIGATIONS, 1946-2002 (2d ed. 2005).
34. 34 Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, § 6, 121 Stat. 1844, 2446-56 (2007).
35. 35 Fair Minimum Wage Act of 2007, Pub. L. No. 110-28, § 3, tit. VIII, 121 Stat. 188.
36. 36 Implementing Recommendations of the 9/11 Commission Act of 2007, Pub. L. No. 110-53, 121 Stat. 266.
37. 37 Honest Leadership and Open Government Act of 2007, Pub. L. No. 110-81, 121 Stat. 735.
38. 38 College Cost Reduction and Access Act, Pub. L. No. 110-84, 121 Stat. 784 (2007).
39. 39 Water Resources Development Act of2007, Pub. L. No. 110-114, 121 Stat. 1041.
40. 40 United States-Peru Trade Promotion Agreement Implementation Act, Pub. L. No. 110-138, 121 Stat. 1455 (2007).
41. 41 Ten-in-Ten Fuel Economy Act, Pub. L. No. 110-140, tit. I, 121 Stat. 1498 (2007).
42. 42 Food and Drug Administration Amendments Act of 2007, Pub. L. No. 110-85, 121 Stat. 823.
43. 43 Economic Stimulus Act of 2008, Pub. L. No. 110-185, 122 Stat. 613.
44. 44 Food, Conservation, and Energy Act of 2008, Pub. L. No. 110-246, 122 Stat. 1651.
45. 45 Supplemental Appropriations Act, 2008, Pub. L. No. 110-252, 122 Stat. 2323.
46. 46 Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008, Pub. L. No. 110-261, 122 Stat. 2436.
47. 47 Housing and Economic Recovery Act of 2008, Pub. L. No. 110-289, 122 Stat. 2654.
48. 48 Consumer Product Safety Improvement Act of 2008, Pub. L. No. 110-314, 122 Stat. 3016.
49. 49 ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553.
50. 50 Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008, Pub. L. No. 110-343, div. C, tit. V, 122 Stat. 3881.
51. 51 Great Lakes-St, Lawrence River Basin Compact, Pub. L. No. 110-342, 122 Stat. 3739 (2008).
52. 52 Emergency Economic Stabilization Act of 2008, Pub. L. No. 110-343, div. A, 122 Stat. 3765.
53. 53 United States-India Nuclear Cooperation Approval and Nonproliferation Enhancement Act, Pub. L. No. 110-369, 122 Stat. 4028 (2008).
54. 54 See, e.g., Paul Kane, Domestic Spending Intact as House Passes War Bill, WASH. POST., June 20, 2008, at A3.
55. 55 See, e.g., Gail Russell, Congress Wrestles over Spying Bill, CHRISTIAN SCI. MONITOR, June 23, 2008, at 3.
56. 56 Susan Davis, Pelosi Brings End to "Hasten Rule, " ROLL CALL, May 29, 2007, http://www.rollcall.com/issues/52- 132/news/18700-1.html?type=printer-friendly.
57. 57 See, e.g., Lori Montgomery and Paul Kane, Bush Enacts Historic Financial Rescue; House Passes Plan by Wide Margin, but Stocks Keep Falling, WASH. POST, Oct. 4, 2008, at Al; Richard Simon, Bush Yields on Housing Bill, Which Now Goes to Senate, L. A. TIMES, July 24, 2008, at Al ("Among House Republicans, 45 voted for the bill and 149 against it. All but three Democrats voted in favor.").
58. 58 See David Samuels and Richard Snyder, The Value of a Vote: Malapportionment in Comparative Perspective, 31 BRIT. J. POL. SCI. 651, 658 (2001).
59. 59 See U. S. CENSUS BUREAU, 2000 CENSUS OF POPULATION AND HOUSING: SUMMARY POPULATION AND HOUSING CHARACTERISTICS 2 (2002), available at http://www.census.gov/prod/cen2000/phc-l-l-ptl.pdf.
60. 60 The following calculations are from David R. Mayhew, Partisan Balance: Why Doesn't the American System Fly Apart? (2008) (unpublished manuscript, on file with author). In making these calculations, election statistics were taken from the Congressional Quarterly Weekly.
61. 61 The reason I am using the presidential vote-share statistic is because it is a plausible guide to the basic ideological texture of a constituency, even if presidential landslides like those of 1964 or 1972 do bring, in a sense, temporary party-share distortions upward or downward that extend across the whole universes of House and Senate constituencies. The statistic is widely used by political scientists as an indicator. Id. at 8.
62. 62 Id. at 21.
63. 63 Id. at 22. One can also make a calculation for the Electoral College. There, the relevant value is the presidential vote share in the median Electoral College unit, with the units weighted according to their numbers of electors. Across the fifteen elections, the average difference between the Democratic share of the national popular vote and the Democratic share of that vote in the median Electoral College unit is: zero. Id. at 18-20.
64. 64 See Charles Stewart III and Barry R. Weingast, Stacking the Senate, Changing the Nation: Republican Rotten Boroughs, Statehood Politics, and American Political Development, 6 STUD. AM. POL. DEV. 223, 226-29 (1992).
65. 65 LEWIS A. FROMAN, JR., CONGRESSMEN AND THEIR CONSTITUENCIES 69-84 (1963);
66. Sam Kernell, Is the Senate More Liberal Than the House?, 35 J. POL. 332, 333-42 (1973).
67. In the area of civil rights, of course, the relation between the two chambers was different. There, a striking gap in intensity between southerners and northerners seems to have played into the Senate's rules with the result that filibusters blocked action. See generally KEITH M. FINLEY, DELAYING THE DREAM: SOUTHERN SENATORS AND THE FIGHT AGAINST CIVIL RIGHTS, 1938-1965 (2008) (exploring the ways southern senators developed a concerted plan of action to thwart civil rights legislation). But note that the Senate cloture rule is not a constitutional matter.
68. 66 See Samuel Issacharoff and Pamela S. Karlan, Where to Draw the Line?: Judicial Review of Political Gerrymanders, 153 U. PA. L. REV. 541, 543-54 (2004) (offering a concise summary of the political entrenchment that eventually lead to the redistricting revolution).
69. 67 See, e.g., FRANCES E. LEE and BRUCE I. OPPENHEIMER, SIZING UP THE SENATE: THE UNEQUAL CONSEQUENCES OF EQUAL REPRESENTATION 158-59, 173-77 (1999);
70. Cary M. Atlas, Thomas W. Gilligan, Robert J. Hendershott and Mark A. Zupan, Slicing the Federal Government Net Spending Pie: Who Wins, Who Loses, and Why, 85 AM. ECON. REV. 624, 628 (1995) ("The implication for federal budget allocations is that, all else equal, congressional contingents from less populous states secure a significantly higher level of per capita federal net spending for their constituents.");
71. William R. Hauk, Jr. and Romain Wacziarg, Small States, Big Pork, 2 Q. J. POL. SCI. 95, 105 (2007);
72. Benjamin E. Lauderdale, Pass the Pork: Measuring Legislator Shares in Congress, 16 POL. ANALYSIS 235, 248 (2008).
73. 68 See LEE and OPPENHEIMER, supra note 67, at 175-76. These particular results steer clear of entitlements policies like Social Security and Medicare, and of defense. See id. at 171-73 (finding that the small-state advantage does not apply to redistributive policies).
74. 69 See Atlas et al, supra note 67, at 625 tbl.l. The amount in Table 1 is $-70 on a biennial basis; it has been halved to provide a yearly figure. The calculations include entitlements and defense. Id. at 627.
75. 70 DANIEL LAZARE, THE FROZEN REPUBLIC: HOW THE CONSTITUTION IS PARALYZING DEMOCRACY 298 (1996).
76. 71 Cf. Susan Page, 5 Reasons the GOP Faces an Uphill Climb in '08, USA TODAY, May 3, 2007, at 1A (discussing the back and forth in presidential elections since World War II).
77. 72 David M. Drucker, Democratic Dominance Could Be Short-Lived, ROLL CALL, NOV. 4, 2008, http://www.rollcall.com/ issues/54-53/politics/29730-l.html?type=printer-friendly (discussing past Democratic dominance of the House and other periods of long-lasting political party control).
78. 73 See Stephen Ansolabehere, David Brady and Morris Fiorina, The Vanishing Marginals and Electoral Responsiveness, 22 BRIT. J. POL. SCI. 21, 33-34 (1992).
79. 74 See Carl Hulse and David M. Herszenhorn, Democrats See Risk and Reward if Party Sweeps, N. Y. TIMES, Oct. 26, 2008, at Al (comparing the potential 2008 Democratic sweep with the past events of the Democrats losing control of the House in 1994 and the Republicans losing control of the House in 2006).
80. 75 Of these thirteen seats wrested from Republicans in the 1958 election, one was a West Virginia seat that had been held briefly by a Republican appointee.
81. See U. S. Senate, Appointed Senators, http://www.senate.gov/ artandhistory/history/common/briefing/senators-appointed.htm (last visited Feb. 16, 2009).
82. Also in this time vicinity, the Democrats gained a Republican seat in a special 1957 election in Wisconsin. Mark Shields, Wisconsin's Maverick Liberal, CNN. COM, Dec. 19, 2005, http://www.cnn. com/2005/POLITICS/12/19/proxmire.shields/index.html.
83. They gained two fresh Alaska seats in the election of November 1958 as Alaska entered statehood. CLAUS-M NASKE and HERMAN E. SLOTNICK, ALASKA: A HISTORY OF THE 49TH STATE 161 (1994).
84. Each party gained a Senate seat when Hawaii later entered statehood in 1959. U. S. Senate, State Information, Hawaii, http://www.senate.gov/pagelayout/ senators/one-item-and-teasers/hawaii.htm (last visited Feb. 14, 2009).
85. 76 See U. S. Senate, Party Division in the Senate, 1789-Present, http://www.senate.gov/pagelayout/history/one-item-and-teasers/partydiv.htm (last visited Feb. 11, 2009) [hereinafter U. S. Senate] (listing Senate party divisions immediately following the election).
86. 77 Compare id. (listing Senate party divisions following elections), with Office of the Clerk, House of Representatives, House History, http://clerk.house.gov/art-history/house-history/partyDiv.html (last visited Feb. 11, 2009) [hereinafter Office of the Clerk] (listing House party divisions following elections).
87. This switching calculation counts both chambers as staying Republican as a consequence of the 1930 midterm election, when the immediate post-election result on the Senate side was forty-eight Republicans, forty-seven Democrats, and one Farmer-Laborite from Minnesota, and on the House side was 218 Republicans, 216 Democrats, and one Farmer-Laborite from Minnesota.
88. Id; U. S. Senate, supra note 76.
89. Once the new House met for the first time in December 1933, special elections ensuing from member deaths had tipped the majority to the Democrats. Office of the Clerk, supra, at n. 1. Going by November election results alone, both chambers switched to Democratic in 1932.
90. Id; U. S. Senate, supra note 76;.
91. 78 Compare U. S. Senate, supra note 76 (listing the Senate party divisions), with Office of the Clerk, supra note 77 (listing the House party divisions).
92. 79 By members of the opposite party I mean, strictly speaking, members who had been elected in their immediately preceding elections as members of the opposite party. Thus Senator James Jeffords of Vermont counts as a Republican electee in 2000.
93. See U. S. Senate, Senators Who Changed Parties During Senate Service (Since 1890), http://wvvw.senate.gov/artandhistory/history/cornmon/ briefing/senators-changed-parties.ht m#16 (last visited Feb. 15, 2009).
94. Senators Joseph Lieberman of Connecticut and Bernard Sanders of Vermont are counted as Democrats in 2008 because they were caucusing with that party in the Senate albeit technically as independents. Republican Richard Shelby of Alabama, an odd case, is counted as an instance of party change. His immediate predecessor was elected to the Senate as a Democrat, and so was Shelby, initially, but he later converted to the Republican side and has since won election as a Republican. Id.