Our system of government is designed to make sure it is difficult to get things done in Washington. That is what we created at the founding of our country. That is what we got. We need to understand it. Ignorance of this is not useful. Anger about may make us feel good but doesn’t change the facts.
If we want a particular party to be able to control what goes on, a majority is needed in the House, 60 out of 100 Senators need to be of the same party and a President of the same party all have to be elected.
In 1787, fifty-five delegates met at a Constitutional convention in Philadelphia and generated ideas of a bicameral legislature (United States Congress), balanced representation of small and large states (Great Compromise), and checks and balances. James Madison stated in a long pre-convention memorandum to delegates that because “one could hardly expect the state legislatures to take enlightened views on national affairs”, stronger central government was necessary. This convention almost immediately dropped its original mandate and instead set about constructing a new Constitution of the United States. Once the convention concluded and released the Constitution for public consumption, the Federalist movement became focused on getting the Constitution ratified.
We have 3 branches of government. They are all elected separately, with the exception of the Supreme Court, which is appointed. This is different than many counties that have a parliamentary style of government. In that style, a party wins and then has control of the legislature and Prime Minister.
Here are some ideas to remember.
- Congress is made up of the House of Representatives and the Senate. Representatives and Senators are elected separately. Different parties can control either or both.
- Each state has a proportional number of Representatives based on their populations. The House essentially works on a “majority rule” way of doing business. If a party controls the House, theoretically they can always outvote the other party.
- Each state has 2 Senators so it is a level playing field. Unfortunately, in my opinion, the Senate does work on a majority rules basis. They have Senate rule 22 which requires 60 votes to get a vote on a bill.
- The President is elected independently from the House and Senate. The President can be from the same or different party’s from the House and Senate. The President can veto any bill they don’t like. It takes a two-thirds vote of both the House and Senate to over ride the veto.
- The Supreme Court is appointed, by the President, with the concurrence of the Senate for life time appointments. They are there to “theoretically” interpret laws as constitutional or not. There opinions can only be over ruled by clearer laws or changes to the constitution itself.
This gets complicated but it needs to be understood. If a party on controls the House, the Senate and the President can block legislation passed by the House very easily. If a party controls the House and the Senate, but doesn’t have 60 members in the Senate, the same happens. If a party controls the House, has 60 out of 100 members in the Senate, and the President is of the same party, much can happen. This is the system of government our founding fathers put in place for a very good reason.
As a perfect example of how complicated it can get, take cloture in the Senate. It intentionally complicates getting a bill passed in the Senate. It is known as Senate Rule 22. It is not found in the Constitution. It can be changed by the Senate. Cloture was invoked for the first time on November 15, 1919, during the 66th Congress, to end a filibuster on the Treaty of Versailles.
The cloture rule originally required a super majority of two-thirds of all senators “present and voting” to be considered filibuster-proof. For example, if all 100 Senators voted on a cloture motion, 67 of those votes would have to be for cloture for it to pass; however if some Senators were absent and only 80 Senators voted on a cloture motion, only 54 would have to vote in favor. However, it proved very difficult to achieve this; the Senate tried eleven times between 1927 and 1962 to invoke cloture but failed each time. Filibuster was particularly heavily used by Democratic Senators from Southern states to block civil rights legislation.
In 1975, the Democratic Senate majority, having achieved a net gain of four seats in the 1974 Senate elections to a strength of 61 (with an additional Independent caucusing with them for a total of 62), reduced the necessary supermajority to three-fifths (60 out of 100). However, as a compromise to those who were against the revision, the new rule also changed the requirement for determining the number of votes needed for a cloture motion’s passage from those Senators “present and voting” to those Senators “duly chosen and sworn”. Thus, 60 votes for cloture would be necessary regardless of whether every Senator voted. The only time a lesser number would become acceptable is when a Senate seat is vacant. For example, if there were two vacancies in the Senate, thereby making 98 Senators “duly chosen and sworn”, it would only take 59 votes for a cloture motion to pass.
The new version of the cloture rule, which has remained in place since 1975, makes it considerably easier for the Senate majority to invoke cloture. The three-fifths version of the cloture rule does not apply to motions to end filibusters relating to Senate Rule changes. To invoke cloture to end debate over changing the Senate Rules, the original version of the rule (two-thirds of those Senators “present and voting”) still applies.
Regarding the Supreme Court, Article III of the constitution states that:
“The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office. “
“The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;–to all cases affecting ambassadors, other public ministers and consuls;–to all cases of admiralty and maritime jurisdiction;–to controversies to which the United States shall be a party;–to controversies between two or more states;–between a state and citizens of another state;–between citizens of different states;–between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.”
Article Two of the United States Constitution places the power of appointing Justices with the President of the United States, stating:
- he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … 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..
A simple majority vote is required to confirm or to reject a nominee. Once the Committee reports out the nomination, the whole Senate considers it. Rejections are relatively uncommon; the Senate has explicitly rejected twelve Supreme Court nominees in its history. The most recent rejection of a nominee by vote of the full Senate came in 1987, when the Senate refused to confirm Robert Bork.
Article III of the United States Constitution leaves it to Congress to fix the number of justices. The Judiciary Act of 1789 called for the appointment of six justices, and as the nation’s boundaries grew, Congress added justices to correspond with the growing number of judicial circuits: seven in 1807, nine in 1837, and ten in 1863.
In 1866, at the behest of Chief Justice Chase, Congress passed an act providing that the next three justices to retire would not be replaced, which would thin the bench to seven justices by attrition. Consequently, one seat was removed in 1866 and a second in 1867. In 1869, however, the Circuit Judges Act returned the number of justices to nine, where it has since remained.
President Franklin D. Roosevelt attempted to expand the Court in 1937. His proposal envisioned appointment of one additional justice for each incumbent justice who reached the age of 70 years 6 months and refused retirement, up to a maximum bench of 15 justices. The proposal was ostensibly to ease the burden of the docket on elderly judges, but the actual purpose was widely understood as an effort to pack the Court with justices who would support Roosevelt’s New Deal. The plan, usually called the “Court-packing Plan”, failed in Congress. Nevertheless, the Court’s balance began to shift within months when Justice van Devanter retired and was replaced by Senator Hugo Black. By the end of 1941, Roosevelt had appointed seven justices and elevated Harlan Fiske Stone to Chief Justice