October 1974 | Volume 25, Issue 6
Although a hundred and eighty-five years have passed since William Maclay, the freshman senator from Pennsylvania, began to record his bitter disillusionment with the Congress of the United States (see page 48), his sense of outrage and betrayal has a contemporary ring. As recently as midwinter less than a year ago national pollsters discovered that only 22 per cent of the American public believed that Congress was doing an effective job, that in fact a vast majority saw the legislative branch as the least responsive of all federal institutions to the problems and needs of the twentieth-century world.
Perhaps the only persons surprised by this massive vote of no confidence were the members of Congress themselves, for traditionally they have embraced the view of an anonymous nineteenth-century observer that they belong to “the greatest legislative body on earth.” That oftrepeated phrase may well be true, but it is equally certain that Congress has projected a distinctly bloodless image. In contrast to the Presidency and the courts, which have risen to positions of unparalleled power and prestige over the past forty years, Congress has remained moored in the past, encumbered by discredited procedures, ancient prejudices, and outmoded ways. In our triune system of government it has been the most resistant to change; as a consequence its record is the least celebrated and its potential the least realized.
Once the master of Presidents and the focus of national political life, Congress in modern times has subordinated itself to the will of an almost all-powerful executive—one measure of which is the extraordinary complaint from the leaders of both political parties in late March, 1969, that Congress had been unable to act because President Nixon, after two months in office, had not yet sent a legislative program to Capitol Hill. Apparently unwilling to assume the initiative in the lawmaking process, acting slowly—if at all—the national legislature now appears to confront the pressing problems of contemporary America with stunning indifference and so seems a mere shadow of the legendary revolutionary assembly that presided over the nation’s birth.
Yet it is clear that the Founding Fathers, despite some reservations, intended Congress to be the most powerful and responsive of the three branches of government in the federal system. Article 1, Section 8 of the Constitution grants Congress a wide range of legislative authority, including taxation, monetary control, the regulation of interstate commerce, the admission of new states, the warmaking power, and, in conjunction with either the states or the President as Commander in Chief, control of the state militias and the military establishment of the United States. In the broadest grant of all—the so-called elastic clause—Congress is empowered to “make all Laws which shall be necessary and proper” to carry out its manifold duties, both as an independent branch and in concert with the executive and the courts.
Not all of these powers, of course, were easily conferred. A sizable minority at the Constitutional Convention feared that Congress in time might overwhelm the other two branches, arrogating to itself powers that properly belonged elsewhere or simply riding roughshod over the delicate system of checks and balances that was meant to establish a political equilibrium. Agreed only that Congress should be a bicameral legislature, the delegates to Philadelphia struggled through weeks of sometimes heated debate to define such matters as apportionment of representation, membership requirements, and allocations of power in a way that would satisfy as far as possible every faction in the convention. Drawing heavily on their knowledge of the British Parliament and the colonial assemblies, they sought to avoid the weaknesses of the Continental and Confederation congresses, each of which had lacked enough real authority for independent action, and at the same time the delegates tried to reconcile the differences between the advocates of a strong central (or national) government and the supporters of states’ rights.
In the end the solutions they offered take something of a middle ground, based, like the Constitution as a whole, on the principle of mutual restraint and on the careful balancing of interests through a kind of political horsetrading. Thus from the moment of its conception Congress was a child of compromise, and to some extent its members have traditionally adopted a cautious centrist position on most legislative matters simply because the Constitution provides no other course.
For much of our history the constitutional restraints made little difference in congressional power. Indeed, until 1933 Congress tended to dominate the other two branches—as the Founding Fathers thought it would. Except in times of national crisis, like the Civil War, the President remained a custodian of his office, content to follow the direction of the legislative branch, and the Supreme Court rarely assumed an activist role.
Beginning in the late nineteenth century, however, America was transformed into an urbanized industrial state and world power, with a new perspective on political needs. Particularly after the great depression of 1929 the nation came to demand greater involvement of the federal government in problems that earlier had been left to the states or the private sector for resolution. From 1933 onward Congress delegated greater and greater authority to the executive, primarily for reasons of efficiency and control. As the complexities of government increased, as America moved rapidly from crisis to crisis—whether at home or abroad—it seemed sensible to avoid the delays that congressional action would necessarily entail and to give the President the power to act swiftly and often alone. By the 1970’s legislative and policy initiatives were well established in his hands.
That transfer of initiative, innocently begun, was aided by the byzantine rules and the committee systems under which both houses continued to operate even as the world changed around them. Keyed to the slower pace of the nineteenth century, placing extraordinary power in the hands of committee chairmen, rewarding seniority (in some cases at the expense of expertise), the parliamentary procedures in the Senate and the House have been subjected to a half century of criticism both inside and out of Congress but thus far have escaped significant change. Virtually every major reform has been voted down, and attempts at modernization have dragged on for years. The House, for example, did not turn to electronic voting—speeding roll-call votes by as much as thirty minutes—until 1973.
Additionally, Congress lacks a clear identity. Unlike the Presidency or the Supreme Court, the national legislature is not easily reduced to a type or personality. Five hundred and thirty-five members strong, it is a complex, complicated instrument of government, comprising both hardworking, dedicated public servants and timeserving incompetents. It is by turns high-minded and serious, frivolous and profligate, protective of its constituencies and submissive to special interests. It has produced statesmen of the order of Henry Clay and John Quincy Adams and racists like Theodore Bilbo of Mississippi. It has sometimes been insensitive to the needs and aspirations of minority groups throughout our history; yet it has also enlarged the meaning of due process and democratic government by writing all twenty-seven amendments to the Constitution, beginning with the Bill of Rights.
Congress has also been too long ignored. Much of its work is dull routine, lacking the inherent glamor of Presidential decision making and generally unsuited to the short visual coverage of television news, on which more than 60 per cent of the American public now relies for its primary information about political affairs. As recently as five years ago only a half dozen journalists were assigned exclusively to Capitol Hill, and one of them was from England’s Manchester Guardian . The result has been that Congress has not had the public exposure that might force it to assume the major role the Founding Fathers intended it to play.
Herewith some highlights and details.
• Initially the Constitution called for one representative for every 30,000 persons in the nation. In practice the first House, totalling sixty-five members, averaged one representative for every 33,000 persons.
• By 1840, when House membership reached 232, there was one representative for every 71,000 persons. In 1940 the ratio was one to 303,000 and in 1960, one to 400,000.
• The current ratio is roughly one representative to each 490,000 persons, or approximately a fifteenfold increase over 1789.
• At the present time ten states account for 55 per cent of the membership in the House. California, with 43 representatives, has the largest delegation. New York is second with 39.
• Six states (Alaska, Nevada, Wyoming, Vermont, North Dakota, and Delaware) have one representative each.
• Eight states (Hawaii, Utah, Idaho, Maine, Montana, South Dakota, Rhode Island, and New Hampshire) each have two representatives.
• Beginning in 1970 overseas personnel in military and government service and their dependents were counted for reapportionment purposes. As a result Oklahoma retained one seat that otherwise might have been lost.
The determination of congressional districts has since 1789 been left to the state legislatures. In this century the shift from an agrarian to an urban society was not reflected by the states in drawing district lines, and by the end of World War n serious inequities in representation had developed. In Illinois, for example, no redistricting occurred between 1901 and 1948; as a result the Chicago area, with more than half the state’s population, sent only ten members to Congress, while the remainder of the state, accounting for about 46 per cent of the population, held fifteen seats. Various efforts by Congress to enforce federal standards for drawing district lines failed over the years. A comprehensive bill that outlawed gerrymandering and set deadlines for state action on redistricting was reported out of committee in 1971, but like its predecessors in 1964, 1965, and 1967, it died on the floor.
As a result almost all efforts to establish equitable and contiguous districts for representation have come about through court action. Beginning with the Supreme Court’s “one man, one vote” decision in 1962 and three subsequent decisions in 1964, state legislatures must draw district lines under a rule of equal representation or be liable to litigation. Despite some resistance to court orders and continuing court action in some states, the overall effect on the current Congress has been substantial. As reported by the Congressional Quarterly , in 1960 only nine election districts out of 435 deviated less than one per cent from the state “ideal population district,” while 236 deviated by ten per cent or more. In 1974 eighty-eight districts are within one per cent of the ideal, and only three districts vary from five to ten per cent from the norm.
Despite the Founders’ intent, neither house historically has reflected the population as a whole. Women and minority groups, for example, have been consistently underrepresented, and over the last fifty years the median age of members of both houses has generally exceeded the median levels of their constituencies.
Fewer than a hundred women have been elected or appointed to Congress; moreover, not all of them have served, either because the woman herself refused the appointment for personal reasons or because Congress adjourned before she could take her seat.
• The first woman to enter the House was Jeannette Rankin of Montana in 1916. She served one term before running unsuccessfully for the Senate in 1918. Re-elected to a second House term in 1940, she earned the distinction of having cast a vote against our participation in both World War I and World War n.
• Since 1921 at least one woman has attended each session of the House. In 1947 there were ten congresswomen; in 1959, fifteen. At present there are sixteen.
• Only six women have served in the Senate. The first was eighty-seven-year-old Rebecca Felton, a Georgia widow appointed on the death of Thomas Watson in 1922. She attended one day’s session and then refused to stand for re-election. In 1954 Nebraska’s two senators were both women appointed to fill vacancies on a short-term basis.
• Margaret Chase Smith of Maine was the first woman to be elected to the Senate in her own right, serving four consecutive terms until her defeat in 1972. There are no women in the current Senate.
A total of forty-two blacks, thirty-nine in the House and three in the Senate, have served in Congress since the Civil War established their right to do so. The first to enter the House was Joseph H. Rainey of South Carolina in 1869. A year later Hiram Revels, a minister from Mississippi, entered the Senate.
• Between 1870 and 1901 twenty blacks served in the House; all of them were Republicans, and all of them were from southern states—eight from South Carolina, four from North Carolina, three from Alabama, and one each from Florida, Georgia, Louisiana, Mississippi, and Virginia.
• The first black elected to the House in this century was Oscar De Priest of Illinois, who took his seat in 1929. Since then there has been at least one black in the House in each congressional term. By 1969 there were nine. Present membership is fifteen.
• Edward Brooke of Massachusetts, first seated in 1966, is the only black senator in this century.
• There are currently two Mexican-Americans, two Chinese-Americans, and two Puerto Ricans, including the delegate from the home island, in the House. One ChineseAmerican and one Japanese-American sit in the Senate. Apparently no full-blooded American Indian has ever served in Congress.
Not unexpectedly, lawyers have dominated both chambers over the years, representing between 40 and 60 per cent of the House membership at any given time and, as in the present Congress, as high as 70 per cent of the membership in the Senate. In general, and again not unexpectedly, the level of formal education in Congress has been well above the national average. Only twenty members of the House at the present time are not college graduates, and all but three of these attended college for one or two years. Currently 50 per cent of its members hold advanced degrees in law or master’s degrees. Seven hold Ph.D.’s.
Only three senators are not college graduates: John McClellan of Arkansas, who after reading law in his father’s office was admitted to the bar at the age of seventeen by a special act of the state legislature; Barry Goldwater of Arizona, who left the University of Arizona after one year to work in his family’s department store; and Harold Hughes of Iowa, who left the University of Iowa in 1941 for military service and did not return. Seventy-eight senators hold advanced degrees; two hold Ph.D.’s.
• The current House of Representatives has 229 lawyers, 83 businessmen, 32 teachers, and 23 farmers or ranchers among its members. (Of 65 members in the first House in 1789, 24 were lawyers; of 357 members in 1895, 240 were lawyers.)
• The current House also includes three physicians (the same number as in 1789), one druggist, and one veterinarian. There are as well four professional athletes, five FBI agents, three police chiefs, one CIA operative, four union officials, four ministers, one priest, one professional magician, a meteorologist, seventeen newsmen, a TV weatherman, and one funeral director.
• The current Senate has seventy lawyers, twelve businessmen (principally in banking, real estate, and insurance), seven farmers or ranchers, seven teachers, and four newsmen.
• Two hundred and eighty-five members of the current House are Protestant, and there are ninety-four Roman Catholics, twelve Jews, seven Mormons, four Unitarians, three Christian Scientists, three Greek Orthodox, and one Seventh-Day Adventist. Twenty-six members of the House list no religious affiliation.
• Sixty-nine senators at the present time are Protestant, and there are fourteen Roman Catholics, four Mormons, four Unitarians, three Jews, one Christian Scientist, and one Syrian Orthodox. Four senators list no affiliation.
• One fourth of the House membership is over the age of sixty, twenty-two are over seventy, and three are in their eighties. The median age is approximately fifty-three.
• One third of the Senate is over the age of sixty, a figure constant since 1950. Twelve senators are over seventy. The median age in the Senate is about fifty-eight.
Perhaps the most significant characteristic in the congressional membership in recent years is the average length of service, which has steadily increased since the Civil War. In 1869 the average among House members was 1.04 terms; in 1923, 2.5; in 1945, 4.5. Currently the figure is 5.5 terms.
• In 1900 nine per cent of the House (36 members out of 391) had served five or more terms. In 1957 45 per cent (196 of 435) had served that long. At present 50 per cent (218 of 435) have held office for five or more terms.
• The median length of service in the current House is nine years. Seventy-five members have served twenty or more years. Fifteen members have been in the House at least thirty years, and three for forty or more. (The record for House service is fifty years, established early in the century by Joseph Cannon of Illinois and shared since by Carl Vinson of Georgia and Emmanuel Celler of New York.)
• The median length of service in the present Senate is ten years. Forty-nine of the hundred senators have served twelve years or longer; six have held their seats for more than thirty years. George Aiken of Vermont is the current dean of the Senate, with thirty-four years’ service. The longevity record is forty-two years, held by Carl Hayden of Arizona, who retired in 1969.
The moneys are expended on congressional salaries, staff, maintenance of the House and Senate office buildings in the capital and the state and district offices of members of Congress across the nation. In addition, the moneys are used to maintain two swimming pools, two gyms, a radio- TV studio in each house, barber and beauty shops in the Capitol, ten restaurants and cafeterias, the Library of Congress, the Government Printing Office, and the dozens of ancillary agencies staffed by the thirty-three thousand employees currently on the congressional payroll.
Senators and representatives receive equal pay, since 1969 $42,500 a year. The first members of Congress were paid six dollars per diem when Congress was in session; this was raised to eight dollars a day in 1818. Beginning in 1856 members of Congress received a fixed salary, initially three thousand dollars yearly, by 1946 twelve thousand dollars. In 1964 the pay was thirty thousand dollars.
The Speaker of the House is paid $62,500. The majority and minority leaders of both houses and the president pro tempore of the Senate receive $49,500 each, plus the use of a chauffeured limousine.
The members of both houses are entitled to thirty-six round trips to their home districts at government expense during each two-year term of Congress. In addition each receives a stationery allowance of $4,250 a term, free telephone service, up to $4,000 in telegrams per term, free haircuts (for men only), and free medical care; and each enjoys the franking privilege—the right to free postage for official business—which has often been abused because the fine line between official and political mail has never been clearly drawn. Another perquisite is junketeering—government-financed trips, allegedly for official inspections and fact-finding studies but more often pleasure trips paid for by public funds. Roughly half the Congress in a given year travels abroad in this fashion. In 1971, for example, 53 senators and 221 representatives spent over a million dollars on junkets to Paris, San Juan, Hong Kong, et al.
Since 1789 some 941,000 bills have been submitted for consideration; approximately 86,000 have passed into law. Beginning with the First Congress, in which 144 measures were introduced and 118 approved, the volume of legislation has steadily increased. Numbered in the mere hundreds in each two-year term of Congress during the nineteenth century, since 1933 bills have totalled in the thousands. At the present time an average of 22,000 new bills appear in a typical term; something between 900 and 1,500 eventually become law.
At the heart of the legislative process is the committee system, which was reformed and strengthened in 1912 after a two-year struggle during which a number of insurgents led by George Norris of Nebraska sought to curb the power of the Speaker of the House. Largely through the efforts of two men the Speaker had become, next to the President, the most powerful man in government. “Czar” Thomas B. Reed of Maine in the 1890’s and “Uncle Joe” Cannon of Illinois from 1903 to 1911 had ruled the House with an iron hand and almost alone dictated what bills would reach the floor for debate and vote. Like other Speakers before them, they appointed all standing committees and their chairmen, served as leader of the Rules Committee—the clearing-house for all bills—and directed the floor action on all legislation. But they had also cut new parliamentary ground and, often ignoring well-established precedents, used their power—as the official House history puts it—in an “arbitrary and autocratic manner.”
The result of this one-man rule was the “Revolt of 1910.” The Speaker was supplanted by the committee chairmen, and currently they wield the great powers he once possessed. The Rules Committee is now the most powerful organization in the House. It assigns all bills for action by other committees and reviews all bills before debate. It may call for revision of committee proposals, further hearings on any measure, or amendments. Regardless of the recommendation any committee may make, if the Rules Committee chooses not to act on a bill (certain finance bills excepted), the bill is in effect killed without a floor vote.
For much of this century the committee has been controlled by southern conservatives consistently opposed to far-reaching social legislation and congressional reform. But in 1961, after an epic struggle between Speaker Sam Rayburn and Rules Chairman Howard Smith of Virginia, the committee’s membership was increased by three, giving liberal Democrats control. It remains very powerful, however, and the object of continuing reform efforts.
If the Rules Committee governs all legislation coming before the House, the chairmen of the standing committees similarly direct the course of all bills coming before them. They have the power to schedule hearings, set agenda, pigeonhole measures they personally find unacceptable, and report legislation out of committee for debate. Although there are parliamentary means for circumventing their power, the chairmen if they choose may be as dictatorial as the House Speaker of old.
At the present time there are twenty-one standing’committees in the House, down from forty-eight in 1946, when the Legislative Reorganization Act—the last major reform effort—was passed to increase congressional efficiency. In addition there are 122 subcommittees and some fifteen select, or short-term, committees to which legislation is referred for study. Each member of the House is assigned by a committee on committees or his party leadership to at least two standing committees and as many as five subcommittees.
Both committee chairmanships and committee placement are subject to the seniority system, which, despite criticism, persists. The effect, both in the House and in the Senate, is to give members steadily returned from rural districts a disproportionate influence on legislation and to place the committee chairmanships in the hands of elderly —and sometimes ineffective—men. In the current House, for example, ten standing-committee chairmen (out of twenty-one) are from southern states, four of them from Texas. Of the seven key committees five (Agriculture, Armed Services, Appropriations, Banking, and Ways and Means) are controlled by Southerners from rural districts, four of whom are seventy-three or older. The chairman of the powerful Rules Committee is eighty-two. Of the seventeen standing committees in the Senate (compared to thirty-five in 1946) nine are chaired by rural Southerners, five of whom are over seventy.
Investigations are directed to more generalized problems like Watergate and the conduct of the President. The first investigation, in 1792, for example, centered on the reasons for the defeat of General St. Clair’s expedition against the Indian tribes in the Northwest Territory. Thinking at first that Washington as Commander in Chief ought to be directed to investigate the matter, Congress later decided that to order him to do so would constitute an invasion of executive power. Since public moneys had financed the military venture, the representatives decided instead to have a select committee of the House conduct the inquiry, in which St. Clair was found blameless and responsibility laid to logistic and supply failures in the War Department and the Treasury.
Over the next twenty years the House conducted twenty-six investigations and the Senate three, almost all of which concerned the enforcement of existing statutes and the conduct of public officials. For the remainder of the century the power was used sparingly, and by 1925 only 285 investigations had been pursued, an average of about two or three for each two-year term of Congress. The most famous perhaps were a series of continuing inquiries into Lincoln’s handling of the Civil War, by a joint committee established in 1861, and the Crédit Mobilier investigation during the Grant era. Some fifty investigations were made of Wilson’s conduct of World War i, and another forty or so inquired into the Harding scandals in 1923-24.
Since 1946, when the Legislative Reorganization Act extended the power of investigation to standing committees as a matter of course (previously special authorization by the full House or Senate was required), congressional investigations have increased in number, range, and cost. In recent years the average has been more than a hundred per term, about equally divided between each house.
Not surprisingly, the increase has led to criticism that many of the investigations are unnecessary, that they proceed from partisan motives (particularly when the inquiry is directed at the executive branch by the opposition party), and that few substantial pieces of legislation have ever resulted from the sometimes long and costly work. There is no denying the criticism that the publicity generated by major investigations has more often been used to enhance the public image of a particular member of Congress than to aid the legislative process. Certainly Harry S. Truman owed his nomination as Vice President, and thus his Presidency, to his evenhanded investigation of industrial mobilization during World War it. Similarly, Richard Nixon rose to prominence in the Alger Hiss inquiry in the early 1950’s, and Estes Kefauver became a serious Presidential contender as a result of his investigation into organized crime in the same period.
The most serious charge—that investigators have often violated the rights of witnesses and abused the great power they wield—was given new meaning through the activities of Joseph McCarthy during the early years of the Korean War. As a result the House in 1955 and later some, but not all, Senate committees established special rules to control investigative procedures, especially the submission of evidence, and to safeguard the rights of all persons called to testify.
Both houses, for example, have the authority to refuse the admission of members deemed unsuitable on moral or legal grounds, but it has rarely been exercised. To date six representatives have been denied their seats in the House. Two cases involved representatives from the border state of Kentucky in 1867 who were found guilty of traitorous conduct; southern representatives, by contrast, had been admitted after submitting to a test oath.
A third congressman was excluded in 1870 because he had sought re-election and won after earlier resigning his seat to escape censure because he allegedly sold appointments to West Point. A fourth—a Mormon—was found unsuitable for seating in 1890 because he had been found guilty of practicing polygamy.
In this century only two men have been denied admission to the House. Victor Berger, a Socialist, was twice excluded before being admitted in 1923, after the Supreme Court reversed his conviction under the World War I Sedition Act. The Court intervened again in 1969 to secure the seat of Adam Clayton Powell, Jr., who had been excluded in 1967 after a series of sensational hearings into alleged instances of tax evasion, libel, and misuse of committee funds. The Senate has excluded only one individual, Pinckney B. S. Pinchback, a black from Louisiana who claimed victory in a disputed legislative election in 1873. After three years of delay and debate the Senate refused to accept his credentials. [See “The Carpetbagger,” A MERICAN H ERITAGE , December, 1973.]
To date the House has censured seventeen members and one delegate, the bulk of them in the nineteenth century, with twelve of the cases arising between 1864 and 1875. The censures have centered principally on the use of unparliamentary or treasonous language in debate, on bribery, and on the sale of appointments. The only case in this century resulted from the insertion of an allegedly obscene letter in the Congressional Record in 1921.
Seven senators have been censured since 1789: two for a breach of security, two for fighting on the chamber floor, and one for unethical acts. In the two most recent cases Joseph McCarthy was censured for “the abuse of members” in 1954 and Thomas Dodd in 1967 for the misuse of campaign funds.
All cases of expulsion from the House occurred during the Civil War, when three members’ seats were vacated on the grounds of treason. The Senate, by contrast, has considered a total of thirty-two cases leading to expulsion, all but four of them in the nineteenth century. William Blount, a senator from Tennessee, was expelled in 1797 for treason, the same charge applied to twenty-one Southerners and one border-state senator during the Civil War. In nine non-Civil War cases five senators charged with bribery at various times resigned before a vote could be taken, and the four others were cleared of charges either by select investigating committees or by the entire Senate.
On the whole, none of these actions has proved effective in establishing confidence in the integrity of either house. There is—and has been historically—widespread suspicion that only the most obvious cases of self-discipline have been brought to public view. Both houses, in fact, have conspicuously ignored persisting demands that Congress produce a strict code of ethics covering such matters as the disclosure of finances, conflicts of interest, and incompetence. Particularly in the aftermath of Watergate, when Congress has the opportunity to reassert its prerogatives and to reassume initiatives long since relinquished, some concrete demonstration of its own integrity might go a long way in re-establishing confidence in our system of government.