HOUSE RULES

HOUSE RULES

In today’s tense budget standoff, many people on both sides of the proverbial aisle are accusing the House Republican majority of being intransigent, unreasonable, unfair, and in general abusive of their privilege of initiating spending measures. A common refrain, heard from the left primarily but also from some conservatives, is that “the voters had their say in 2012, and they didn’t throw Obama out”, so now the House should “get on with it” rather than try to stop ACA by using the budgetary standoff as an extortion/negotiation opportunity. The sense is that, if the people of this country didn’t elect a Republican Senate and did reelect President Obama, they obviously don’t think Obamacare is that bad, and it would therefore be unfair and unreasonable for one branch of Congress to hold up the government over the issue, potentially risking default of the US government and a return to recession. But these critics have overlooked the core Constitutional issue that stands behind the Republican House majority’s ability to block budget progress without a discussion of ACA changes.

We learned in high school (at least when I went, we did) that the United States Constitution clearly states that, “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills” (Article 1, §7). This has been construed over the years as applying to any bills regarding to raising revenue (which includes bills that lower taxes, which are about raising less revenue—although such bills are rarely seen); it does not, however, apply to Congress’ power to borrow money (nor does it apply to the general budget process, except new taxes are generally included in every budget resolution, which makes them revenue bills and brings them under Article 1, §7). This is an original Constitutional provision, and is binding on everyone: any bill that deals with taxes must start in the House of Representatives, period. It is also limited to bills that pertain to taxation that is intended to add to the general revenue of the government; incidental revenue raised for particular purposes as part of a specialized bill (like raising postage rates to fund the Postal Service) are not covered by the House-origination rule.

The original core reason for the requirement that revenue bills originate in the House, rather than the Senate, is that the House is the Congressional chamber most directly accountable to the people of their respective districts. If the people of most Congressional districts are outraged by, for example, Republican obstruction of the budget process, they can throw all the offending Representatives out next year (or at most, in two years). By contrast, if the Senate created a noxious revenue bill, it would take up to five years to remove all of the offending Senators, since the Senate is elected one-third at a time. And of the course, the President is only up for election once each four years, and has term limits. In today’s situation, President Obama is accountable only to his conscience and to his sense of his legacy (with the exception of “high crimes and misdemeanors”, for which he might be impeached). James Madison clearly and explicitly stated this rationale (in The Federalist, No. 59), and it has been cited numerous times by the Supreme Court since.

Secondarily, it is important to note that the Congress was designed from the beginning to provide a sort of split representation. Senators (until the 17th Amendment in 1913) were selected by state legislatures, and not by the people of the states; even now, while they are elected by the popular vote, it is the popular vote of entire states rather than smaller districts that might tend to care about specific issues. This is because the Senate, and Senators individually, are intended to represent their state; Representatives are intended to represent their districts, and therefore to stay close to their people (since they must stand for election every other year, and since there are fewer of them). This difference is more than cosmetic—it was foreseen from the Founding Era that some states would become large (especially as new states were added), and that a system of pure proportional representation would severely compromise the interest of smaller states (the Senate exists in its current form at least partly to mitigate this risk).

The pre-Civil War era clearly showed one of the risks of the Senate’s design. Southern states were able to dominate the Presidency and the key offices of the Federal government throughout the antebellum period because of their extraordinary unanimity and their numbers in the Senate. If the dominant clique of southern Senators had been able to control the budget as well, their power would be have been overwhelming; instead, because they had to negotiate with northern Representatives who represented a much faster-growing population (and thus had dominant numbers in the House), compromise was always important to get anything done. Since taxes tend to come in a proportional manner based on population, it makes sense to have the purse strings in the hands of the house that is most closely representative of the population distribution (and, as noted above, that is most closely accountable to the people). For similar reasons, most “high statecraft” roles were assigned to the longer-serving, state-selected, presumably (but not actually) less mercurial Senators—hence the Senator confirms Presidential appointments, ratifies treaties, and acts as the court for impeachments (but the populist House brings the charges).

This system has worked for well over two hundred years (assuming forcing the need for compromise is a good thing, which is something I take for granted), and it was set up by design to disperse power broadly, to introduce checks and balances, to thwart any one branch’s (or house’s) attempt to seize power, and to allocate responsibilities in a way that suited the unique character of each branch or house. Given that, it is unreasonable to state (simply because we may not like the particular policy they are promoting) that the House should “just get on with it” and to yield to the fact that the Senate and the President are from the other party. It is in fact the House’s Constitutional responsibility and duty to vote their conscience and use the rules of their house to see that the government purse is used responsibly at all times, regardless of how difficult that path might be. For them to do anything else would be to pander and to abandon their Constitutional role. In fact, it is undoubtedly the most important role of the House of Representatives, and each Representative, regardless of party, should do his or her utmost to protect the fiscal prerogative of the House. If the people don’t like the results, every one of the Representatives can compute exactly how much longer he or she will remain in office—and it’s not a very long time. So the House is by design the most democratic element of the Federal government.

With that said, one might ask why we should bother maintaining a Senate at all. Many seem to think we live in a pure democracy (we don’t) or even a somewhat pure representative democracy (we also don’t). But in fact we live in a federal republic with a strong tradition of separation of powers; our governmental structure is set up not only to prevent rule by oligarchs but also to prevent rule by the mob (or even by populists). Letting the House run the country would be no less helpful than letting the Senate and the President do so; with the structure we adopted in 1787 it is rare to have all three aligned politically (and usually disastrous when it does happen, witness 2009-2010). Senators are able, and duty-bound, to take a longer view of things, and it is to be hoped that they are better able to focus on complex issues of statecraft when not thinking about elections constantly. Of course nothing is perfect and they do think about elections, but at least for the first four years they can think about other people’s elections, which is still better than having to campaign constantly.

Interestingly, while in our first 80 years it was a sectional divide that clearly marked the relative strengths and weaknesses of the Senate and the House, today we see something quite different. A casual look at the American electoral map will show strongly Democratic areas around every major city on a coast (or on the Great Lakes), and the rest of the country tends to be fairly conservative. This shouldn’t be surprising, as the urban areas tend to be the recipient of most of the largesse of the Federal government, and it is also these areas that draw a predominant proportion of educated professional who have attended our (generally liberal) universities. Thus there is a natural common interest in promoting ideas that are generally considered Democratic. The rest of the country generally (a) is self-selected (they chose not to be urban folk), and often this is because liberty and lack of government intrusion are more important than, say, unions or gun control. Without commenting on any of the issues themselves, it shouldn’t be surprising that we are seeing an emerging split into two sections, in many ways analogous to those of the antebellum days. One is geographically large, but has diffuse political power (it is shown in red on political maps these days, which is ironic). The other is geographically diffused, an archipelagic arrangement of urban outposts that are shown in blue; within each blue island political power tends to be quite concentrated. It shouldn’t be surprising that we see phenomena like today’s split Congress; I expect this will be the norm for some time.

Given our history, and our ongoing evolution, both political and demographic, it is advisable for each of us to remember why we have such a unique structure of government, and to insist on its maintenance and on the strict adherence by all branches to the Constitution. We should keep in mind the precautionary principle as well, because while one day we may enjoy a set of elected officials to our liking at all levels and in all branches, and be tempted therefore to relax our insistence on such maintenance and adherence, the results of such indolence would be either tyranny or the inevitable “shoe on the other foot” later, with consequences that would be much less savory. The precautionary principle is most simply stated as: “Be careful what you wish for!”.

The Constitution remains a great landmark in responsible government, and we should keep it as our compass always. Even when the government is shut down and we aren’t getting whatever largess we have become accustomed to—especially then.

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