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Legislative Politics Chapters 12 - 14


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Legislative Politics Chapters 12 - 14

  1. 1. Legislative PoliticsPOLS 4211 Chap. 12, 13, 14
  2. 2. Congress and the Courts (12)
  3. 3. Constitution Article III• Section. 1.• 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.
  4. 4. Article III, Section 2• 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.• Continued next slide
  5. 5. Article III, Section 2, cont.• In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.• Continued next slide
  6. 6. Article III, Section 2, cont.• The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.• Section 3 next slide
  7. 7. Article III, Section 3• Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.• The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
  8. 8. The Legal System• Courts decide cases by hearing the facts on both sides of a dispute and applying the relevant law or principle to the facts.• Courts have authority over the citizens and the government.
  9. 9. The Legal System• Courts are obliged to maintain neutrality and impartiality in deciding disputes.• The essence of the “rule of law” is that government officials are judged by the same laws as the citizenry.
  10. 10. The Supreme Court• This is America’s highest court. Article III vests the “judicial power of the United States” in the Supreme Court.• The Court is made up of a chief justice (Supreme Court justice who presides over the Court’s public session) and eight associate justices.
  11. 11. The Supreme Court• Congress has the authority to change the size of the Supreme Court.• The Supreme Court is the only federal court established by the Constitution.• The lower federal courts are created by statute and can be restructured or, presumably, even abolished by the Congress.
  12. 12. How Judges Are Appointed• Federal judges are appointed by the president and confirmed by the Senate.• Nominees are generally selected from among the more politically active members of the legal profession.• Often, before the president makes a formal nomination, senatorial courtesy (the practice whereby the president, before formally nominating a person for a federal judgeship, seeks an indication that senators from the candidate’s own state support the nomination) is observed.
  13. 13. How Judges Are Appointed• There are no formal qualifications for service as a federal judge.• In general, presidents appoint judges with legal experience and good character, who have ideological and partisan views similar to the president’s.
  14. 14. How Judges Are Appointed• Once the president formally nominates individuals, the nominee must be considered by the Senate Judiciary Committee and confirmed by a majority vote in the full Senate.• In recent years, Supreme Court nominations have involved intense partisan struggles.• Typically, after the presidential nomination, interest groups opposing the nomination mobilize the media, public, and Senate against it.
  15. 15. The Power of the Supreme Court: Judicial Review• One of the most important powers of the Supreme Court is judicial review (the power of the court to examine and, if necessary, invalidate or declare unconstitutional actions undertaken by the legislative and executive branches).
  16. 16. The Power of the Supreme Court: Judicial Review• The phrase is also used to describe the scrutiny that appellate courts give to the actions of trial courts, an inaccurate use.• Appropriately, a higher court’s examination of a lower court’s decision might be called “appellate review,” but it is not judicial review.
  17. 17. Judicial Review of Acts of Congress• The Constitution does not give the Supreme Court power of judicial review.• The Supreme Court asserted this power under Chief Justice John Marshall in Marbury v. Madison.• The Court has struck down only 160 congressional acts. Judicial power has come to be accepted as natural, if not intended.
  18. 18. Judicial Review of State Actions• The Constitution does not explicitly grant the Court this power.• However, the logic of the supremacy clause (part of Article VI of the Constitution, which states that laws passed by the national government and all treaties are the supreme law of the land and superior to all laws adopted by any state or any subdivision) is very strong.
  19. 19. Judicial Review of State Actions• Also, the Judiciary Act of 1789 conferred upon the Supreme Court the power to reverse state laws and constitutions whenever they conflict with the U.S. Constitution.
  20. 20. Judicial Review of Federal Agency Actions• Congress has delegated to the executive branch regulatory power to enable it to administer congressional legislation.• Delegation of power has led to court decisions about the scope of delegation and consistency with congressional intentions.
  21. 21. Judicial Review of Federal Agency Actions• Recently, the Court has found that so long as federal agencies develop rules based on “reasonable interpretation” of congressional statutes, the judiciary would accept executive decisions.
  22. 22. Judicial Review and Presidential Power• The Court also reviews presidential actions when these are challenged by individuals, groups, or members of Congress.• The federal bench has, more often than not, upheld assertions of presidential power in foreign policy, war, and emergency power, as well as administrative authority.• Recent cases related to the war on terror, however, have placed some limits on presidential authority.
  23. 23. Judicial Review and Lawmaking• Much court work involves statute application. However, over time, judges have developed a body of principles called “common law.”• The written opinion of an appellate court is halfway between common law and statutory law.• It is made by a judge and draws heavily on the precedents of previous cases.
  24. 24. Judicial Review and Lawmaking• Much civil law has been constructed by judicial messages to other judges, which may eventually be codified into legislative enactments.• The courts cannot directly change the behavior of citizens or the government.• However, they can make it easier for mistreated persons to gain redress.
  25. 25. Judicial Review and Lawmaking• They enforce writs of habeas corpus (a court order demanding that an individual in custody be brought into court and shown the cause of detention—meaning one cannot be deprived of liberty without a trial).• Habeas corpus is guaranteed by the Constitution and can be suspended only in cases of rebellion or invasion.
  26. 26. Judicial Review and Lawmaking• In redressing wrong, the federal courts can also call for a radical change in legal principle.• For example, one can see changes in laws about race relations in Brown v. Board of Education, ending school segregation, or the doctrine of the separation of church and state in Engel v. Vitale, which ended school prayer.
  27. 27. Judicial Review and Lawmaking• Also, in criminal cases the Supreme Court revolutionized the legal system, developing the Miranda rule: the requirement that a person under arrest must be informed prior to police interrogation of their right to remain silent, the right to be informed of their accusation, and the right to have counsel present during questioning.• These rights were established by the Supreme Court in Miranda v. Arizona.
  28. 28. Explaining Supreme Court Decisions• The Supreme Court explains its decisions in terms of law and precedent. Court justices may make a decision based on judicial philosophies including:
  29. 29. Explaining Supreme Court Decisions• Judicial Restraint – Adherents of this judicial philosophy refuse to go beyond the clear words of the Constitution in interpreting its meaning.
  30. 30. Explaining Supreme Court Decisions• Judicial Activism – Adherents of this judicial philosophy claim the court should go beyond the words of the Constitution or a statute to consider the broader societal implications of its decisions.
  31. 31. Explaining Supreme Court Decisions• Political Ideology – The second component of judicial philosophy is political ideology. – The liberal or conservative attitudes of the justices play an important role in their decisions.
  32. 32. Explaining Supreme Court Decisions• Judicial Power and Politics – The federal courts’ power and roles have been transformed in the late twentieth century. – Understanding how this transformation came about is key to understanding the contemporary role of courts in America.
  33. 33. Traditional Limitations on the Federal Courts• For much of American history, the power of the federal courts was subject to a number of limitations.
  34. 34. Traditional Limitations on the Federal Courts• To begin with, courts cannot exercise power on their own initiative.• Judges must wait until a case is brought to them.• Courts were constrained by judicial rules of standing that limited access to the bench.• Claimants who simply disagreed with the government did not have access.
  35. 35. Traditional Limitations on the Federal Courts• Access was limited to individuals who could show that they were particularly affected by the government’s behavior in some area.
  36. 36. Traditional Limitations on the Federal Courts• Courts were limited in the character of relief they provided.• Traditionally, courts offered assistance only to individuals, rather than classes of individuals.
  37. 37. Traditional Limitations on the Federal Courts• Courts lacked enforcement powers.• If the executive was unwilling to assist, judicial acts would be unheeded.
  38. 38. Traditional Limitations on the Federal Courts• Federal judges are appointed by the president with the consent of the Senate.• As a result, the president and Congress have power to shape the judiciary and its decisions.• Congress has the power to change the Court’s size and jurisdiction.
  39. 39. Two Judicial Revolutions• Since WWII, the role of the federal judiciary has been strengthened and expanded.• The Supreme Court has headed a series of changes in the role of American government and society.
  40. 40. Two Judicial Revolutions• They also brought about a second revolution, establishing a series of judicial procedures that expanded the power of the courts in America and countered some of its traditional limitations. – They made it easier for groups to bring action in the courts against adverse governmental action.
  41. 41. Two Judicial Revolutions– They also allowed themselves to act on behalf of classes of persons in “class action suits” (legal actions by which a group or class of individuals with a common interest can file a suit on behalf of everyone who shares that interest).
  42. 42. Two Judicial Revolutions– The Court employed so-called structural remedies, in effect retaining jurisdiction of cases until the court’s order has been implemented to its satisfaction.
  43. 43. Thinking Critically about the Judiciary, Liberty, and Democracy• In the original conception of the framers, the judiciary was to be the institution that would protect individual liberty from the government.• Today, Americans of all political persuasions seem to view the courts as useful instruments through which to pursue their goals, rather than simply protectors of individual rights.
  44. 44. Thinking Critically about the Judiciary, Liberty, and Democracy• Courts are used as instruments of social policy.• If courts are treated as simply one more set of policy-making institutions, then who is left to protect the liberty of individuals?
  45. 45. Terms• Original Jurisdiction – The authority to initially consider a case. Distinguished from appellate jurisdiction, which is the authority to hear appeals from a lower court’s decision.• Judicial review – The power of the courts to review and, if necessary, declare actions of the legislative and executive branches invalid or unconstitutional.• Judicial restraint – Judicial philosophy whose adherents refuse to go beyond the clear words of the Constitution in interpreting its meaning.• Judicial activism – Judicial philosophy that posits that the Court should go beyond the words of the Constitution or a statute to consider the broader societal implications of its decisions.• Senatorial courtesy – The practice whereby the president, before formally nominating a person for a federal judgeship, seeks the indication that senators from the candidaate’s own state support the nomination.
  46. 46. Congress and Interest Groups (13)• Previously individuals joined voluntary organizations to achieve goals of value to their members and to influence the direction of society and government.• More recently, organization and money are crucial predictors of how successfully an interest group will influence policy. – Questions? (next slide)
  47. 47. Questions for consideration• Will digital fund-raising, organizing, and communicating strengthen the clout and efficacy of interest groups?• Will expanding Web-based activism change the face of who participates in interest groups?• Will digital group activism have unintended negative consequences?• How can Congress create an more level playing field for individuals to get their message to the government?
  48. 48. Right to petition the Government• 1st Amendment:• Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
  49. 49. Interest Group Methods• Direct Lobbying• Social Lobbying• Coalition Lobbying• Grassroots Lobbying• Electronic Lobbying
  50. 50. I.G. Methods• Direct lobbying – Success is based on trust. Is the lobbyist credible and knowledgeable? • (tracks $ and lobbyist) – Member to member lobbying • “Each member is part of a network of reciprocity.” • Lifetime membership • Revolving door – Officials who move from government employment to private sector lobbying – Now limited to after two years• Social lobbying – The interacting among lobbyist and congress members in a casual setting. – Committee on Standards of Official Conduct • Travel with registered lobbyists is banned • No paying for meals – Reception exception or toothpick rule • Campaign events are unrestricted • Speaking fees (honoraria) may be given to specific charity or non-profit.
  51. 51. Terms• Lobbyist – Individual who communicates directly with policy makers on an interest group’s behalf.• Interest Group – Organizations hat seek to achieve some of their goals by influencing government decision making.• Elite theory – A theory that holds that a group of wealthy, educated individuals wields more political power.• Pluralist theory – A theory that holds that policy making is a competition among diverse interest groups that ensure the representation of individual interests.• Free Rider – The phenomenon of someone deriving benefit from others’ actions.
  52. 52. Terms• Electioneering – Working to influence the election of candidates who support the organization’s issues.• Umbrella organizations – Interest groups that represent collective groups of industries or corporations.• Climate control – The practice of using public outreach to build favorable public opinion for an organization.• Political Action Committee (PAC) – A group that raises and spends money to influence the outcome of an election.• Social capital – The ways in which our lives are improved in many ways by social connections.
  53. 53. Terms• Astroturf – Slang for an outpouring of “grassroots” sentiment that an interest group manufactures.• Grasstops – An interest group tactic of enlisting the support of people with strong local influence or a personal connection to lawmakers.• Air war – An interest group effort to sway public opinion through broadcast advertisements.• Section 527 Group – A group that runs issue advocacy ads and voter mobilization efforts, often as a way to get around federal campaign finance restrictions.• Foundation – A nonprofit organization whose primary goal is to seek benefits for the broader public, not just its own members.
  54. 54. Congress, Budgets, and Domestic Policymaking (14)• Public Policy – a law, rule, statute, or edict that expresses the government’s goals and provides for rewards and punishments to promote their attainment
  55. 55. David Easton…• Defined a political system as “the authoritative allocation of values for society as a whole.” (• So…public policy is the authoritative allocation of something of value for the people as a whole.
  56. 56. Policymaking Stages1. Agenda Setting2. Formulating Policy or Incubation3. Adopting Policy4. Implementation5. Feedback or Feedforward
  57. 57. Agenda Setting• Best selling book: – John W. Kingdon, Agendas, Alternatives, and Public Policies • Agenda (national) “the list of subjects to which government officials and those around them are paying serious attention.” – From where do problems come? • Next slide
  58. 58. Agenda Setting - 2• Policy may come from? – Crisis – Gradual accumulation of knowledge about a problem such as Global Warming – Accumulation of past problems such as crumbling infrastructure or oil dependence • Creeping Crisis or “Slow Leak” – Difficult to handle since legislative process tends to be Reactive instead of Proactive
  59. 59. Formulating Policy• Incubation: – Keeping a proposal alive while it picks up support, or waits for a better climate or while a consensus begins to form that the problem to which it is addressed exists. – The difficulty, according to Thomas s. Foley D- Wash. (Speaker, 1989-1995) issues have become far more perplexing since he came to Congress in 1965.
  60. 60. Adopting Policy• John W. Kingdon’s “policy window” – An opportunity presented by circumstances and attitudes to enact a policy into law • Legitimation is the process through which policies come to be viewed by the public as right or proper. – Review text material in light of the Health Care Reform – “…the policies themselves must appear to have been properly considered and enacted. A nation whose policies lack legitimacy is in deep trouble.” (p. 420) • Symbolic Policy – No specific implementation such as the beginning of GA’s seat belt law • Hortatory Policy
  61. 61. Implementation• Chief Executive function• Legislation is vague – Left up to bureaucrats to interpret – Correct mis-interpretation via the Oversight process
  62. 62. Feedback• Feed-forward – How are we doing? – The process may be considered circular
  63. 63. Domestic Policy Typology1. Distributive2. Redistributive3. Regulatory• T. Lowi is often quoted from his study of the types of policies of national government. – He did not include Foreign Policy or Self- Regulatory Policy. – Heuristic method of trying to understand how policy develops.
  64. 64. Distributive Policy• Distributive: broad allocation of benefits/services to population segments. They are synonymous with govt subsidies or patronage, land & resource policies; river & harbor projects & “Pork Barrel” projects: – e.g. TVA, Highway System, Savannah River• Lowi: they “are virtually not policies at all but are highly individualized decisions that only by accumulation can be called a policy.” (over time, in aggregate, these rules indicate a general policy direction)
  65. 65. Distributive Policy - 2• May be called – Pork – Member Projects – Congressional Initiatives – Congressional Directed Spending – Earmarks • Defined as a specific project placed as a rider to a Bill that will benefit a specific legislator’s district • Most recent example was the “Bridge To Nowhere”
  66. 66. Distributive Policy - 3• Earmarks – They increased dramatically over the last 20 years – Recent criticism led to an overhaul of the earmarking process • More transparent and accountable – Congressmember(s) name requesting Earmark must be disclosed – Must disclose name and location of intended recipient – Must disclose purpose of earmark – Certify that Congressmember nor spouse has financial interesting in earmark.
  67. 67. Redistributive• Reallocation of resources from one population segment to another. – Graduated Income Tax – Medicare/Medicaid – Equality of Results/condition – Lottery
  68. 68. Regulatory• Restrictions on private action/business. Specific & individual in their impact though not quite to the extent as Distributive policies. – Zero-Sum Game – George Stigler’s Economic regulation: is sought by the affected industry and operated for its benefit. (1971). Maybe more similar to “self-regulatory”
  69. 69. Budgeting“The budget is the life blood of the government….If we substitutethe words ‘what the government ought to do’ for the words ‘ought to be in the budget,’ the centrality of the budget togovernance itself becomes clearer.” -Aaron Wildavsky
  70. 70. Budgeting• Budgeting is the process of creating a plan for expending funds. – In any enterprise or government, one must anticipate revenues. – Budgets are working documents in that they are not absolute and may be changed to more properly reflect actual expenditures. – Some governments require periodic budget adjustments and independent audits
  71. 71. Budgeting - 2• Budgets are only as complex as: – Amount of funds expended – # of individuals involved • # of different levels of administration or hierarchical development – Development of formal rules • Legislative accountability and transparency = delays • GAGSA (Yellow book), FASB, GAAP – CGAP, Comptroller, CPA
  72. 72. Backdoor Spending Techniques• A sidestep of the two-step authorization- appropriation process. It Mandates/Directs 1. Contract authority • Permits agencies to enter into contracts which binds govt to pay for the services. 1. Borrowing authority • Allows agencies to spend money they borrowed. 1. Entitlements • Fastest growing! Grants benefits to specific categories.
  73. 73. Entitlements Challenge• Social Security – Trust fund surpluses are expected to drop sharply in 2009 and be nearly flat in 2010 – Program will pay out more in benefits than it receives in revenues by 2016 (year earlier than estimated last year) – Program will be insolvent by 2037 Enrollees would receive about three-fourths of their promised benefits through 2083
  74. 74. National Budget Outline• Fiscal Year: Oct. 1 – Sept. 30• Spring Review: Agency submits request to OMB (March = heads up)• Fall Review: OMB submits budget to President (numerous agency meetings (CEA, Treasury, individual agencies)• DEADLINE: “Economic Report of the President” due to printer in January – next page 74
  75. 75. National Budget Outline, cont.• First Budget Resolution: Generally May; Congressional proposal (CBO advises)• Second Budget Resolution: Sept. deadline• Continuing Resolution: temporary appropriations bill• GAO fiscal year audit 75
  76. 76. Fighting Budget Deficits• Rising expenditures for entitlement programs, nat’l defense, and declining revenues is contributory to the rapidly increased nat’l debt between the late 70s & 80s.• The GRH Act of 1985’s sequestration process did not work, Bush’s “no new taxes” was not adhered to, and Clinton could not reduce the deficit by one-half like he promised. However, some of the Clinton years saw budget surpluses due to the luck of a strong economy.• Economic recession and international conflict are indicative of diminishing surpluses and red-lining. 76
  77. 77. Biennial Budgeting• “Biennial budgeting could also improve the efficiency of agencies where preparing detailed budget documents has become a year-round process,” Isenberg adds. “If less time were spent preparing budgets, more resources could be shifted to long-term management and oversight.” – See Concord Coalition link here: • reports/updates/2010/1019/two-year-budget-cycle-could- save-time-improve-efficien
  78. 78. See Concord PPT’sA des/WebSiteTalk092010.pdfShort and Long Term Budget Trends
  79. 79. Terms (Also review Box 14-2)• Public Good – A good or service that is provided by the government because it either is not supplied by the market or is not supplied in sufficient quantities.• Phonemarking – Informal Congressional practice of telephoning executive branch officials urging them to continue funding old earmarked projects.• Unfunded Mandate – National regulation requiring lower level govts to provide a service for which they are not reimbursed.• Entitlement Program – A legal obligation of the federal govt to provide payments to individuals, or groups f individuals, according to eligibility criteria or benefit rules.• Medicare – A form of national health insurance for the elderly and the desabled.
  80. 80. Terms• Medicaid – A federally and state financed, state-operated program providing medical services to low-income people.• PAYGO – This rule required that all tax cuts, new entitlement programs, and expansions of existing entitlement programs be budget-neutral-offset by additional taxes or by cuts in existing entitlement programs.• Tax – Any compulsory payment to government without an expectation of personal benefit.• Sequestration – The automatic, across-the-board spending cuts if Congress fails to reach deficit reduction targets.• Fiscal Year – Governments budget year of which the national government fiscal year is from October 1 through September 30.
  81. 81. Terms• Birth Dearth – When fewer workers are paying to support more and more retiree benefits.