The Freedom of the Legislature from External Control - Term Paper Example

?SELF-POLICING CONGRESS This paper investigated Article I, Section 5 of the Constitution or more popularly known as the self-policing provision for the United States legislature. The section is composed of four clauses but the first two primarily provided the arguments for the congressional self-policing function: the power to judge the election and qualification of its members; and, the power to create regulations that govern the legislative proceedings and the conduct of its members. These clauses underscore the freedom of the legislature from external control. The importance accorded to the provision is underscored by the fact that it has never been subject to any amendment since its ratification in 1788. The Provision Section 5, also known as the provision that outlines the procedure by which Congress conducts its affairs, forms part of the Article 1 of the United States Constitution, otherwise known as the “Vesting Clause” which creates the legislative branch of the American federal government. This, in effect, makes Section 5 part of the original Constitution drafted by the delegates to the Philadelphia Convention in 1787 and ratified in 1788. Since its ratification, it has never been amended The full text of the provision follows: Section 5. Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide. Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member. Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal. Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting. (Pennsylvania Packet 1787) The wordings of Section 5, is easily seen as procedural. More importantly, however, is that these procedures that talk about how Congress should conduct its affairs had came to be identified with the power of the legislative branch to police its own ranks. What this means is that only the Congress has the power to check, investigate, and discipline its members. The four clauses are quite explicit in its mandate for the legislative department. The first clause is consisted of two parts. The first is that one that gives the House of Representatives and the Senate the power to decide and determine the qualifications of their own members. In applying this to a case, assume that there is a disputed Senate seat wherein two candidates are staking their claim. It will be the Senate which has the ultimate, say, as to who or which candidate deserves the seat. Meanwhile, the second clause details how a majority for either chambers of the legislature is needed in order to constitute a quorum. Alexander Hamilton (1787), writing about the power of the Congress to regulate the election of members stressed that it is crucial. His reasoning formed part of his wider discourse on how every government ought to contain in itself the means of its own preservation. In Federalist paper No. 59, he stated: Every just reasoner will, at first sight, approve an adherence to this rule, in the work of the convention; and will disapprove every deviation from it which may not appear to have been dictated by the necessity of incorporating into the work some particular ingredient, with which a rigid conformity to the rule was incompatible. Even in this case, though he may acquiesce in the necessity, yet he will not cease to regard and to regret a departure from so fundamental a principle, as a portion of imperfection in the system which may prove the seed of future weakness, and perhaps anarchy. (Hamilton 1788) Hamilton took pains in explaining why the federal legislature should be given this regulation of the congressional membership. The gist of his points was that entrusting the power to regulate congressional membership to the legislative department is crucial because the unity of the federal union depended on it. He opined: “And as it is more consonant to the rules of a just theory, to trust the Union with the care of its own existence, than to transfer that care to any other hands, if abuses of power are to be hazarded on the one side or on the other, it is more rational to hazard them where the power would naturally be placed, than where it would unnaturally be placed.” (Hamilton) The second clause is the most important of the provision in the context of what is being discussed by this paper - the self-policing power vested on the legislative department. It provides both the chambers of the legislature to set their own rules of parliamentary procedure, including those that outline the guidelines in investigating complaints against members, meting out punishment or the expulsion of members, among other related rules. Throughout the almost two-century existence of the American government, the House of Representatives and the Senate have created, established and promulgated a complex set of rules that are being followed to this day. Clauses 3 and 4 established further procedures. The former mandates both of the chambers to keep and publish a journal of all of their proceedings while the latter provided the rules by which the House or the Senate could adjourn, setting conditions according to several specific circumstances. The fourth clause was supposedly included in order to prevent each of the chambers from interfering and obstructing the work of the other as neither house can adjourn for more than three years in the absence of a notification communicated to the other chamber. Historians also identified the Founding Fathers’ criticism of King George III penchant for calling the legislature into session at untimely intervals and locations as a reason for the inclusion of this clause. (Vile 2010, p. 33) Vile (2010) called Section 5 of the Article I as “housekeeping provisions” because it addresses routine housekeeping functions of the Congress. There was the coverage on issues of membership, disputes within, procedures, and other related concerns. The inclusion of this section is considered to be a logical and only natural since the internal structure of the Congress under the type of government outlined by the constitution made it imperative to establish the way the legislature was to be separated from the other branches of the government. While the clauses in the provision was silent about several details that constitute the complex rules and procedures found in Congressional work, it has appropriately provided the environment, mechanisms and structure in order for modern rules and routines to be established. According to Vile, the framers wisely predicted that Congress – through the years – could resolve changes, problems and other related routine matters through experience and when left alone. (p. 33) Indeed, the Congress today has established the roles of congressional committees, the seniority system, the Senate filibuster, cloture, the elaborate role of political parties, the job description of the Speaker of the House or the president pro tempore of the Senate and other functionaries, even without the explicit mandate in Section 5. Limitation Section 5 of Article I is not absolute nor that self-policing is an unrestrained power. There are several instances wherein this fact has been established. For example, the US Supreme Court once ruled that the constitution does not give the Congress unlimited power in deciding whether a person is fit or unfit to assume a House or Senate seat. In 1969, the court rejected the disqualification decision of Representative Adam Clayton Powell, Jr. Invoking Article I, Section 5, the Congress barred Powell from assuming his congressional seat on the grounds that he refused to pay a civil judgment as punishment meted out by a New York court. In Powell v. McCormack, the Supreme Court held that “authority under Article I, Section 5, was limited to deciding whether Powell met the requirements set forth in the Constitution concerning age, residency, and citizenship” and that the House of Representative has abused its authority by adding more to these requirements. (Dewhirst and Rausch 2007, p. 459) The case of Powell was invoked by a more recent dispute created when President-elect Barack Obama left his Senate seat back in 2009 and Roland Burris faced disqualification because he was appointed by a scandal-beleaguered Illinois governor. The argument was that it is not within the congressional mandate to disqualify Burris on the grounds of his appointment or the scandal that it entailed. Burris was eventually sworn to office and the Senate Ethics Committee decided to drop ethics charges several months later. Pros and Cons As previously mentioned, the Founding Fathers were wise to recognize that the Congress, given the amount of power found in Section 5 – could very well cover and address all problems and issues concerning its internal structure. As a result, the vibrant and effective legislative procedures today are well established. It is even safe to say that the years of experience will enable Congress to perpetuate itself and the United States as a country through its own system of development. Its independence is crucial to its mandate of legislating laws. Speaking before a committee hearing, an impassioned Congressman Collins of Maine declared: And so much of law – we legislate the law – as someone taught me years ago, is the way we express our values, the way we express our aspirations for ourselves as a society, the rights and wrongs, what we hope we will be, is apparent in the system by which we legislate ourselves… But the reality is that the best system for doing that is our own ethical norms, which most of us, of course, have: that ultimately, we have self-police ourselves by not trifling with and demeaning the extraordinary opportunity to serve that our constitution have given us. (US Congress 2010, p. 435) There are sectors who argue that Congressional self-policing has its own drawbacks. For instance, Sarah Dufendach (2007), in her testimony before the House Judicial Committee, identified two problems that are claimed to be inherent with the system. To quote: 1. Judging colleagues’ ethical conduct is always difficult, but even more so in legislative bodies where members depend on good will from other members to get things done… Members depend on one another to do their job. The obligations, loyalties and civilities that are necessary, even admirable, in a legislature, make it difficult to judge colleagues objectively or to act on the judgments even when objectively made. 2. The dual pressures of working with one another and avoiding partisan mutually assured destruction leads Congress either to agree to ethics “truces” when no Member files complaints against any other Member, or to wage an “ethics war” where both parties file charges indiscriminately to gain political advantage. Neither approach creates accountability or gains the public’s trust. (p. 5) James Hill (1982) also pointed the fact that the constitutional protection and independence of the Congress often get abused. “With congressionally enacted laws as guidelines,” Hill wrote, “there is a strong temptation by Congress to hide behind the speech or debate clause or the separation of powers doctrine in order to avoid outside intervention in congressional affairs.” (p. 951) An excellent example of this argument is when both of the legislative chambers ignore laws or interpret them differently in order to suit their needs. For example, “Congress has rarely utilized the provisions of 2 U.S.C. § 39 relating to deductions of pay for absences from Congress caused by circumstances other than illness, despite considerable congressional absenteeism.” (Hill, p. 951) The above challenges are just some of those outlined by critics who, for their part, advance other systems and mechanisms to resolve issues that concern the members of the legislative department. For instance, there are those who believe that the establishment of independent committees to investigate and judge complaints such as those ethical in nature and make recommendations is the better alternative. An excellent example is the Legislative Ethics Commission in the state Kentucky, composed of non-members of the state legislature. The state legislators themselves were reported to favor this mechanism, pointing to the fact that an independent ethics commission does a better job overseeing compliance with state ethics rules than committees consisted by their members such as the House or Senate Ethics Committee. (Dufendach, p. 6) Summary Article I, Section 5, has been called by people with different names – self-policing power provision, vesting clause, and housekeeping provisions. These names, however, all point to the power of the US Congress to judge the election of its members, and establish rules and procedures that would govern the legislative proceedings and behavior of the politicians within its structure. The section appears to be simple, declaratory and straightforward. This, however, downplays the underlying force entailed in each of the four clauses. Section 5, collectively, form part of the constitutional guarantee for the separation of powers of the three branches of the American government. By judging the election of its members and self-policing, the Congress is assured of its independence. The success of this system is evident in the way the legislative procedures and environment became more sophisticated and are functioning more effectively than ever. Of course, the system is not perfect. This paper has outlined several criticisms raised and that the most important of this pertains to the abuse of this self-policing power – that members of the Congress use their self-policing privilege to escape justice. All in all, regardless of the drawbacks raised by critics, Section 5 of the Article I of the US constitution will definitely dominate the manner in which Congressional affairs are conducted. For two centuries, it has survived intact, without any amendment or modification. This, in itself, should provide the future of the provision or the way it would be interpreted and implemented by the government. Executive Summary The purpose of this paper is to explain the self-policing power constitutionally granted to the American legislature. The four clauses that constitute the provision, collectively, demonstrate this: the first clause provides the mandate by which both of the legislative chambers could judge the qualifications and suitability of its members; the second clause provides the regulations by which Congress should run its affairs and police its ranks; the third is concerned with the keeping of records of all legislative proceedings; while the fourth set the terms for adjournment. The first two are the most important factors why Section 5 is equated with the congressional self-policing. The principle at work is effective although it has its share of critics. More importantly, it forms part of the wider principle that dominates the American republican government, which is the separation of powers among the three branches of the government. References Dewhirst, R. and Rausch, J. (2007). Encyclopedia of the United States Congress. New York: Infobase Publishing. Dufendach, S. (2007). "Common Cause". Subcommittee on the Constitution, Civil Rights and Civil Liberties - US Congress. Retrieved 16 May 2011, from http://www.commoncause.org/atf/cf/%7BFB3C17E2-CDD1-4DF6-92BE-BD4429893665%7D/ETHICS%20ENFORCEMENT%20TESTIMONY.PDF Hamilton, A. (1788). FEDERALIST No. 59: Concerning the Power of Congress to Regulate the Election of Members. FoundingFathers.info. Retrieved 16 May 2011, from: http://www.foundingfathers.info/federalistpapers/fed59.htm. Hill, J. (1982). "Ethics for the Unelected." ABA Journal, vol. 68: pp. 950-954. The Pennsylvania Packet. (1787). The Constitution for the United States. EarlyAmerica.com. Retrieved 15 May 2011, from . US Congress. (2010). Congressional Record, V. 153, Pt. 1, January 4, 2007 to January 17, 2007. Washington, D.C.: Government Printing Office. Vile, J. (2010). A companion to the United States Constitution and its amendments. Westport, CT: Greenwood Publishing Group. Read More