AMERICAN legislatures are so powerful that most Americans identify lawmaking with elected assemblies. A moment's reflection, however, reminds us that government by legislatures is an intermittent rather than an invariable phenomenon of history. The eras of rule by legislatures can be recited in short order. The small city-states of ancient Greece and Italy were often governed by assemblies, composed sometimes of hereditary officers and sometimes of all the citizens. Assemblies of an advisory kind existed within provinces of the Roman Empire, in the Catholic church councils of the Medieval Period, and in the kingdoms of western Europe from the thirteenth to the sixteenth centuries. The medieval English Parliament, a bicameral body of nobles and clergy on the one hand and of elected town and country representatives on the other hand, is perhaps the most familiar case of such an assembly, inasmuch as it carried into modern times. And, of course, toward the end of the eighteenth century, a period of revolt began that established legislatures within two generations in most countries of Europe and America.
The eighteenth century revolt had two consequences that allow us to term the nineteenth century the age of legislative supremacy: First, legislatures appeared on all sides. Second, they assumed a greater share of the lawmaking power. We may adopt therefore, as the standard of government by legislature, the condition that exists when the bulk of important laws originate in law and in fact through the operations of a selected group of officers of equal status, organized into a constitutional branch of the government.
We should emphasize -that legislatures have existed without legislative supremacy, and legislative supremacy may exist without a monopoly of power by legislatures. Some form of council almost always seems to be present, even if it is only a cabinet of ministers to an absolute monarch. The English Parliament existed for centuries before it emerged, in the Revolution of 1689, as the supreme policy-determining institution of the realm. What is true of the past is sometimes true of the present and may be true of the future: legislatures, that is, may exist without real power.
Furthermore, legislatures have rarely possessed a monopoly of power. The last chapter on law revealed several formal organs that make law besides legislatures. The amount of power these organs have taken from legislatures has sometimes been great and sometimes small. The American Congress and state legislatures have been limited by written constitutions, even when the Presidency and the governorships were weak offices. They have always faced a court system highly esteemed by an influential public. And in Europe, over most of the nineteenth century, kings reigned, and they limited the power of legislatures. One can always visualize the position of legislatures, relative to other branches and institutions of government, as having moved upwards or downwards in their average disposable power (see Figure 3, below).
The power of the legislature (particularly during the age of legislative supremacy) has been expressed in the following major functions.
1. Legislatures usually have the power to determine whether persons seeking admission to them have been duly qualified and elected.
2. Legislatures usually have something to say about the general organization of the government-they define the functions of many executive offices, establish new agencies of government, give jurisdiction to courts, and initiate amendments to constitutions.
3. Legislatures rule themselves. They set up regulations for their internal working, provide committees to investigate at length particular matters pertaining to old and proposed laws, and select their officers.
4. Legislatures appoint or approve the appointment of many key officials of the government and usually have powers to force the removal of appointed officials for grave causes (by the impeachment, trial, and conviction process). They scrutinize the operations of executive agencies.
5. Legislatures vote money. The first important power of the English House of Commons was the right to refuse and to grant funds to the king. Parliaments gained considerable respect from kings because of the wealth and the means for guarding that wealth possessed by the representatives of the lower houses, for example, the Commons. In modern times the tradition that the popular chamber should control the voting of new taxes and of new appropriations has persisted. In the American Congress and legislatures, bills for raising revenue usually must, according to the Constitution, originate in the House of Representatives and may be amended bybut not introduced in-the Senate.
6. Finally, legislatures draft, debate, and pass bills. Sometimes, as in America, the executive has to sign all public bills or veto them. But in several European countries, bills become law if they are approved by the legislature.
The prevailing structure of legislatures in recent times has been bicameral. Fifty-one nations-approximately sixty per cent of all nations-employed the bicameral system in 1950. Members of the "upper" chamber, examples of which are the many senates of the world and the British House of Lords, are selected ordinarily from narrower groups of the population than the "lower" chambers such as the American House of Representatives, the Italian Chamber of Deputies, and the British House of Commons. Only twenty-eight of the fifty-one nations having bicameral assemblies elect their upper houses in whole or in part by popular elections. Most upper houses are partially or wholly filled by indirect election through local legislatures (like the original American Senate), election by vocational bodies (the Irish Senate), election by regional councils (France), election by the lower house (Denmark), or appointment by the executive branch (England).
In effect, the nonpopular techniques of filling upper chambers meant that the more conservative, propertied elements would have greater strength in upper houses than in the lower ones. This was actually the reason for instituting bicameralism in the first place in most countries. It was contended by the more privileged and wealthier groups that a check was needed against possible hasty and demagogic laws of the lower chamber.
In judging this assertion, we must agree that the upper houses did come to represent the more solidly entrenched members of society while the lower houses more actively sought change. But we cannot assert that hastiness and demagoguery are the sole possessions of lower houses. Nor can we agree or disagree with the assertion that the upper houses possess the vice of obstinacy more than the lower houses possess the vice of rashness. Hastiness, demogoguery, and obstinacy are all terms best reserved for propaganda, not science. We cannot make any objective statements on this matter without studying the thousands of discrete enactments of the many legislatures (something no one has done).
It is obvious, however, that the major political forces of the late nineteenth and early twentieth century played on the side of lower chambers. Upper houses lost power in three ways: they were often limited further in the powers they possessed for making laws or for obstructing the acts of the lower chambers; they were sometimes subjected to the same principle of election as the lower house; they were in several cases abolished.
The limitation of the power of upper chambers has occurred in most continental countries and in England. The House of Lords in England has been losing powers for centuries and now has lost the last shred of its formal ability to retard the acts of the House of Commons. The French Council of State is a weak body, simply expressive of the ideas of French parties and of French local governments, who elect its members. Its legal and actual powers are few. The careers of other continental upper houses show a similar decline over the past two generations.
The election of upper houses on the same principles as the lower houses is common in America. Whereas, in the early years of the Union, the national and state senates were elected by restricted electorates-indirectly or by men of propertytoday there exist no differences between the qualifications for voting for senators and representatives. The same electors, practically all of the adult citizens, elect the members of both houses.
Upper houses have been abolished in the course of several revolutions. Under peaceful conditions, enough respect for special traditional interests is present and enough power is possessed by them to prevent a total exclusion of their influence. Thus the English Commonwealth Parliament abolished the House of Lords temporarily. The French revolutionaries abolished the Estates General, only to make way soon for bicameralism under the Directorate Constitution. The Russian Bolshevists established unicameralism on the ruins of Czarist and republican bicameralism, but later restored bicameralism.
Putting aside questions concerning the differential powers of the two chambers and the differential electorates for them, several other differences remain and produce behavioral consequences. These are differences in 1) the special qualifications a candidate to the two houses must possess; 2) the size of the chambers; 3) pay of members; 4) the tenure and turnover of membership; and 5) differences in geographical apportionment, especially in America.
The age of qualification for membership in upper houses averages several years more than for membership in the popular chamber. Traditionally this greater age has been held to account for the greater conservatism in upper houses. Such a conclusion is hard to demonstrate. What seems to be due to an age difference may be in fact the result of other factors. Thus, older men in a society of high mobility may be expected to have more possessions and to be somewhat more influenced by considerations of stability and fiscal conservatism than younger men. But there is always an adequate supply of old radicals for any system. British Labour Party politicians have been older on the average than British Conservative leaders, because it has taken longer to organize political power among the masses than to buy or inherit power. This fact would seem to indicate that age is a negligible cause of conservatism among political leaders.
In addition to age, the most common special qualifications demanded for membership in the various upper chambers of the world are the possession of property above a certain amount, membership in a learned profession, a title of nobility, and the prior achievement of official position or civic honors. Experience confirms the expectation that property and status requirements, if greater in the upper than in the lower house, will produce more resistance to change in the upper house than in the lower. The more property and status a man has, the greater is his investment in the status quo, and the greater is the likelihood that he will defend that status.
The influence of numbers upon the behavior of legislative assemblies is difficult to determine. The most widely accepted judgment is that the greater the number of legislators, the more prone is the body as a whole to be subjected to an oligarchy of leaders. The individual American Senator, it is pointed out, has more freedom in debate, more influence in committees, and more respect among the public than the individual Representative, because he is one out of 100 rather than one out of 437.
The American practice of making senates smaller than lower houses is the usual practice elsewhere as well. The tendency seems to be to enlarge the upper house beyond the number of the lower house only when its functions become purely ceremonial. The size of the lower houses varies greatly. The English House of Commons contains over 600 members, the American House of Representatives 437, and the American state houses from 35 in the case of Delaware to 399 in the case of New Hampshire. The largest legislature is the Supreme Soviet of the U.S.S.R., with more than 1300 delegates, divided almost equally between its two chambers. The number of delegates does not, however, rise proportionately with the population of the country. Smaller countries have smaller ratios of representatives to constituency populations than do more populous countries.
In some countries, the number of which is diminishing, members of the upper houses are paid a token sum of money. Other upper houses do not compensate their members at all, while working upper houses that possess real power, like the American senates, have the same general salary levels as the lower houses. The salaries of popular representatives have generally been considered low, especially in view of the high expense that political activity involves.
The miserly character of most legislative emoluments has prompted a general belief that higher pay would produce "better" legislators and reduce corruption of politicians. More men would enter legislative election contests. Many petty temptations would disappear. And, no doubt, legislators would be happier human beings, a status they should not be denied more than any other groups of the population. But it is difficult to argue these points one way or the other. Men who earn so much that they regard legislative salaries as too small usually earn enough money to serve in legislatures at a loss, if they feel political activity is worthwhile. It is doubtful that the average annual income of state legislators from all sources is inferior to the general average of the population. Again, if one ranged the American states from 1 to 50 on the amount of salary they pay their legislators, and then ranged them according .to the number of scandals in which their legislatures were involved, it is almost certain that no relationship would be observed to exist. However, even granting that the top salary is too small to reveal the difference between low and high paid men, one may still doubt that a crowd of able and honest men will join the rugged game of politics even if annual salaries were to be doubled. In any event, the character of democratic politics makes the granting of high pay unlikely.
The tenure of office in upper houses is generally longer than in lower houses. It ranges from three years to life; the average tenure is six years. Two years, three years, four years, and five years are the favored tenures for popular chambers, with the usual term four years. The American House of Representatives is elected each two years-a common term among the state legislatures, which, however, are elected annually in some cases. Short tenure of office, formerly so strongly demanded by radical democrats, proved to have technical consequences working against its widespread adoption. Hardly did men achieve office and organize a session of the assembly when they had to begin campaigning for the next election. Only those politicians coming from safe constituencies, where their majorities were regularly assured, could begin to know governmental affairs well. Consequently, the principle of short terms deduced from a theory of democracy, has given way to practical need. The tendency has been to lengthen terms.
A number of upper houses are renewed only partially in each general election while, as a rule, the lower houses turn over completely. For example, one-third of the American Senate is subject to election each two years, and one-eighth of the Swedish upper house is elected annually. Partial renewals, in contrast with wholesale renewals, have two consequences of importance. The partially renewed house is permanently organized and always has available many members who are skilled in conducting parliamentary business. Also, the partially renewed house reflects less of the transformation of opinion that may occur from one election to the next. Thus the American Senate settles down easily after each biennial election while the House has initially a period of confusion. At a single election, the Senate cannot swing from one party to another by huge majorities, as can the House, because its membership cannot be altered by more than one-third in each biennial national election.
As we mentioned earlier, upper chambers are often elected by constituencies different from those of the popular chambers. Examples would be senates selected by vocational bodies, appointed by executives, or elected by state legislatures. But even where both chambers are elected by the same people, say by universal suffrage, differences in the geographical apportionment of members may be present. In the American national Senate each state has two popularly elected senators regardless of population. Also, in a number of American states, representation in the senate is apportioned by local jurisdictions such as counties, giving a certain minimum representation to each local area, while representation in the house is apportioned according to districts of roughly equal population. The main result is the emphatic presence of rural voices even though the county or state is heavily urban. This amplifying effect, together with the refusal of many ruraldominated legislatures to increase the representation of rapidly growing urban districts, helps to give American legislatures their strong rural outlook and to explain the cramped incompetence of American city governments in attending to some of their most pressing problems.
Legislatures differ from most other human organizations that are required to do work in that they are compelled by their own "theory" to be composed of opposing forces. While most other organizations have internal factions, such divisions are visualized as non-essential. For example, an administrative agency or a large corporation is not supposed to have internal factions. On the other hand, legislative divisions, at least since the eighteenth century, are regarded as the appropriate symbol of effective organization, paradoxical as this may seem. This division within legislatures has been re-enforced by the more recent advent of strong political parties that lay claim to unanimity among their members on certain matters - such as support of their programs.
"Divided unity" causes some grief .to legislators and public alike. Unanimity in a legislature is suspect. Yet divisiveness in a legislature is looked upon sometimes as unpatriotic. Legislators must tread carefully the line between collusion and hopeless factionalism. Over a long period of time, a way of accomplishing this has been worked out (mostly unconsciously) and is revealed in a number of ways. A notable and clear method of coping with the paradox is to give all power to the majority of members in deciding a matter introduced as a bill but, at the same time, to give the opposition the status of a regular and respected part of government. This is the case in the House of Commons, where the Opposition is regarded, not as something to be ignored and discriminated against in every way possible, but as the possessor of an established position, with specified privileges in seating, debates, and committee memberships. American legislatures do not go so far as the English in institutionalizing the opposition, but only rarely do they attempt completely to exclude the minority membership from participation at any stage of the legislative process. Almost every legislative committee has several minority members. Formal leadership is consigned to the majority party through the Speaker of the House, the chairmen of the committees, and majorities in all committees. The minority party is deprived of equality with the majority party. That is a far cry from carrying out strictly an extreme view of the majority principle, requiring that the majority has absolute sway.
This relationship between opposing elements of the legislature is so rooted in a long historical development that its critical, delicate, and incongruous nature is not often enough realized. New legislatures often encounter difficulty in overcoming this essential paradox of legislatures. The degeneration of the short-lived democratic parliaments of east Europe after World War II reveals that, when suddenly and consciously advanced, the compromising demands of the legislative way of life are hard to grasp and to put into practice. The first thought of the new victorious parties of such legislatures is to rid themselves of all conceivable threat from opposing party members who remain in the assembly.
The legal concessions to the minority that characterize long-lived legislatures are accompanied by an informal organization of the legislature that scarcely is evident to outsiders. We refer here to what may be called the esprit de corps of legislatures. Like quarrelsome families, legislatures are torn by internal dissension but are held together by scarcely mentioned bonds. This may seem extraordinary to those who believe that "anything goes" in politics. But one may, after close scrutiny, prepare a rather lengthy list of things one legislator will not do to an opposing legislator. Some are prohibited by rule, others by unstated convention. Even violators of conventions are dealt with by informal means-ostracism, deprivation of expected perquisites like consultation in making appointmentsrather than by formal action. Rarely will a legislature formally discipline an ill-behaved member. Apparently, legislators would rather undergo a lowering o public esteem for the whole body than institute a new principle for the punishment of offenders.
Pertinent to this kind of behavior is Garland Routt's observation that "in general, the esprit de corps displayed by legislative bodies, especially the smaller ones, is probably not rivaled by any other formally organized, self-governing body." Dr. Routt discovered that among Illinois legislators there was in some cases as much social communication among members of opposing political parties as among the members of the same party. Two other observers have made similar comments. Karl Abshegan said .that the House of Commons resembled an exclusive and influential club while James Bryce wrote of the collective self-esteem of the American Senate. T. V. Smith noted that "the cloak rooms of Congress, and legislatures, are more important than committee rooms."
The necessary internal contradiction between unity and dissent that affects legislative institutions is supplemented by another contradiction just as important. The legislature is formed on the assumption that each member equals every other member. Theoretically, each member derives an equal amount of power from his constituency. On this basis each member has only one vote on all matters put before the whole assembly. But this egalitarianism, that finds force in the minds of most electors and receives deference in the formal rules of procedure, is opposed by the tendency in acting organizations towards leadership by a few men. Because legislatures are founded on the principle of the equal power of their members, they must avoid any appearance of hierarchy and oligarchy. No one challenges an executive officer because he gives orders to his subordinates, but a legislative officer is exceedingly vulnerable to such challenges.
On the other hand, the pressure of work is as great in the legislative branch of the government as in the executive branch. Bills must be processed, legislative time must be budgeted, many decisions must be made. All of this must be accomplished while satisfying internal and external critics that the equality of members is being preserved.
The foremost consequence of this contradiction is the discrepancy between the formal legislative procedure and the informal legislative process. Let us picture first the formal legislative procedure in a bicameral assembly of the American type (where the executive is separate) and then the informal legislative process. The formal legislative procedure is diagrammed in Figure 1.
These are the main formal steps that must be taken before a bill becomes law in the United States; the same process is followed in a number of other countries. Often the same or a similar bill is introduced in both houses by two co-operating members at the same time. Such action expedites the bill by allowing it to be simultaneously considered in both chambers.
Few bills that are introduced by isolated individuals go through the legislative process with such facility. In most cases unless a bill is known to be powerfully backed it is marked for an early demise. In legislatures like the English, a bill that is powerfully backed is almost sure to get through, once it is set in motion. In American legislatures, where party lines are not held to so tightly, a bill favored by the leaders of the legislature will often get through several of the main barriers with ease but be blocked for a time at some point that cannot be controlled, like the unfriendly committee chairman of one of the houses, or the President or governor. Nevertheless, we can present a second diagram (Figure 2), this time of the informal legislative procedure, which is as true on the average as the first diagram.
|A bill is simultaneously introduced in both houses by the leaders of the majority party.|
|The bill is sent to a friendly committee by the friendly speaker, and after establishing a case for it by controlled hearings, the committee chairman uses his influence to have it referred quickly and with approval to the floor.|
|The bill is given a favored position for debate; debate is closed whenever seemly to do so; and the leadership musters support for early passage.|
|Unforeseen amendments are handled by a conference committee, appointed as recommended by the friendly chairmen of the committees originally considering the bill.|
|The bill is quickly passed by both houses. It goes to the executive for signature.|
The first diagram portrays the legal "musts" of legislative procedure, the "right" of every member to introduce any bill and see it through into law, and the "rational" function of debate and hearings. The second diagram portrays the strong control a few old, skillful, and entrenched officers can wield over the legislature. They can coordinate both houses in a planned campaign on behalf of a favored bill and they can hamper the bill of an ordinary member by curtailing hearings and debate. Both diagrams can be true, and various combinations of both processes normally occur as the contradictory principles of egalitarianism and oligarchy interact in practice.
Extreme conflict between egalitarian and oligarchic tendencies in legislatures is most likely to occur over questions of control of the legislative business. Who decides what bills to consider and who has the power to delay or advance proposals are the crucial internal issues of legislatures. Each American chamber has from a dozen to several dozen committees. A committee is established for every important area of legislation and for considering questions of internal governance. The most important committees are those attending to the rules by which the legislature operates and to the activities on which most money is spent or the activities most important to the welfare of the community. Examples would be the committees on rules, appropriations, ways and means, foreign affairs, and atomic energy. Those congressmen who are elected to the key positions of Speaker of the House or Majority Floor Leader, or who are chairmen of the important committees, together with their close supporters, are each equipped with a legislative potential far exceeding that of the ordinary members of the House of Representatives.
The egalitarian principle prevails formally in the organization of a legislative body. The assembly elects its officers and elects its committees. The party that commands a majority determines the party affiliation of officers such as the presiding officer of the lower chamber and of the chairmen of committees. And, still speaking formally, each member of the majority party has an equal say with every other member. But important facts cannot be gainsaid. Some "equal" members are old in service, some are new; some are leaders of blocs of members, some are without followers or loyal associates; some have been holding important committee posts, others are without important appointment. Therefore, the members who remain from previous sessions, who lead blocs, and who have been in command of the legislative offices ]and committees before, direct the organization of each new session of a legislature and, beyond that, the substantive work of the legislature. The election of officers and committee chairmen is controlled by such members and the bulk of other legislators are consigned to the role of followers or critics of the dominant few.
Committee chairmen are formally elected in the American type of legislature. However, they usually are designated from among the entrenched group by the Speaker and "run" without opposition. The Speaker in turn observes the principle of seniority; that is, he favors the candidate for a committee chairmanship who has had the longest tenure in the legislature among the "acceptable" aspirants for the post. It is naive to view this procedure from the standpoint of "efficiency." The seniority principle is not pursued simply because the legislators believe "erroneously" that experience is better than intelligence or that age imparts wisdom. The seniority principle is followed mainly because the seniors are pleased with themselves and see no sufficient reason for consigning their powers to others. In other words, seniority accompanies oligarchy and the revolts against the seniority principle that occasionally occur are mainly revolts of the dispossessed egalitarians against the entrenched oligarchs.
Thus far we have spoken only of the internal conditions of legislative organization and process. We will now describe the other factors that influence the operation of the legislature: the chief executive, administrative agencies, pressure groups, and public opinion. Again, the American type of legislative organization remains our model.
Observing the American elective executive at work in his legislative capacity, we find the following: the President or Governor influences his supporters in the legislature to introduce in the legislature a bill that reflects his policies. If his party is the majority party, and if the majority party leaders on the floor agree with his bill, then the second process diagrammed above takes place. If his party is the majority party but there is a split between, let us say, the President and the congressional leadership, then the President must muster an effective alliance among some other legislative leaders and his personal followers; a combination of the first and second processes results. If the President is faced by a Congress the majority of whose members are in the opposition party, he must resort to the first process, using friendly individuals to buck the oligarchy in getting fair treatment for his bill, and employing his own personal and official powers to assist this effort.
The influence of administrative agencies can be distinguished from the influence of the executive in studying the legislative process (1) whenever the appointive bureaucracy is unintegrated and has political connections with the legislature, and (2) whenever the bureaucracy is permanent and highly respected, and is joined to a weak political executive. The first is common in the American past but is less frequent today. The second is found in weakly controlled monarchies that have legislatures (for example, eighteenth-century England; the period of Louis Philippe in France) and in turbulent republics (for example, the Third and Fourth French Republics).
In the nineteenth century the ordinary department beads and bureau chiefs of American administrative agencies maintained autonomous relations with legislators. Many legislators had favorite agencies, whose growth they fostered, whose appropriations they ensured, and whose personnel they helped to select. Bills considered good or bad by the agency were sponsored or opposed by its friends in the legislature. Often the President or Governor, although called the "chief executive," had little knowledge or control of the growth and change of an agency. Recently, in America, the national executive has grown stronger, and agencies that flagrantly disregard the wishes of the "chief executive" concerning proposed legislation are punished by reprimand, or in extreme cases, by dismissal of the offending officers. However, although today the executive controls the agencies in general, certain agencies still have special "friends" in Congress who will defend them and who know more about the operations of the agency than the President's office itself. In state governments, the extremely autonomous agency still predominates, with striking exceptions such as New York State.
In the American examples just given, agency influence on legislation was strong because the appointive bureaucracy was unintegrated and agencies could use their political connections in the legislature. Agencies, however, can also strongly influence legislation if the bureaucracy is permanent and highly respected. In the Republics of France and Germany and in various other places at different times, the permanent bureaucracy had a firm grasp on the key offices short of the few elective offices and a secure position in the social class system. For these reasons the agencies often were able to initiate legislation that then went smoothly through the formal legislative process prescribed by law. We shall have something to say in the next chapter about the instability in position of the chief executive that promotes this kind of agency influence in lawmaking.
The role of pressure groups in legislation, discussed elsewhere, is not as great as commonly believed. Nevertheless, where opposing pressures are weak, an integrated lobby can markedly influence particular legislation.
Legislative bloc leaders, who can control a dozen or so legislators and especially when they control the committee pertinent to the issues in question, are the favorite instruments for initiating legislation on behalf of pressure groups. Here it must be remembered that very often the vote of a legislator is cast on an issue with several motives in mind. A common motive is to help someone else on a matter of "not too great" consequence in order to get his help in turn. Even a small bloc of legislators, united in support of a particular interest group, such as the producers of dairy products or the owners of silver mines, can find occasion when their position on another issue will gain them support on their favored issue. Therefore, it is because much legislative business is settled through compromise that special interests get the opportunity to make their ideas into laws. The small bloc and the strategic committee are the favored transformers of special interests into law.
Finally, public opinion has its own peculiar way of influencing the legislative process. Ordinarily, public opinion is divided rather than unified, and mild rather than tempestuous. Bruce Barton estimated in 1939 that letters to Congress averaged over 100,000 each ordinary day. They are perhaps double that number now. The regular mail constitutes a sort of ballast to the legislative process to which a continuous but relatively minor attention is paid.
When, on extraordinary occasions, the mail sharply increases, one can see heightened adjustive activity on the part of many representatives. When Congress in 1939 was considering lifting the embargo on shipment of arms abroad, over a million and a quarter pieces of mail arrived in a short time. According to Dwight Anderson, "an aroused public sentiment evidenced by an unprecedented volume of letters, telegrams, and petitions, actually defeated" the Supreme Court and executive reorganization measures that had been proposed by Franklin D. Roosevelt, and this happened at a time when Roosevelt's party nominally controlled 335 of the 435 members in the House of Representatives.
But we must be most careful not to credit aroused public opinion with a monopoly of pressure. The Chicago City Council once imposed a tax on movie admissions in the face of an avalanche of contrary petitions, amounting almost to a full instruction by electoral majorities ;n several wards. The councilmen were, however, desperate for funds. They judged that the hostility of the public would diminish in time, and they united in their mutual crisis and passed the tax in spite of public disapproval.
We should also realize that an outburst of opinion is rare, not at all available upon demand or upon necessity, and in itself contains no inherent wisdom other than the wisdom of both sides of the particular case at point.
One cannot doubt, turning to the British type of legislature, that it has an easier way of sweeping its business under the bed. British members of Parliament are not on the average as beset by immediate trifles and trivial legislation, because their government and cabinet have more flexible constitutions. The cabinet, formed of the majority leadership in the assembly in most cases, joins with the permanent staffs of the departments and together they draft, propose, and manage the career of most of the bills. Strong party discipline restrains the legislative forays of individual members and blocs. Only a few public enactments in each session originate from private members rather than from the cabinet leaders. Prof. W. Ivor Jennings listed only eleven out of seventy parliamentary enactments in the period 1936-1937 as being introduced by individual members. Also, the committees of the House of Commons are not little principalities like the American committees, but tend rather to act as agencies of the cabinet itself.
Despite the growth of the practice of delegating the power to make very important decisions (quasi-legislation) to appointed officials in America, American legislatures and courts are far less indulgent in this respect than the British Parliament and courts. In England great powers are turned over to appointive officials with little fear of the consequences. It is, indeed, almost impossible to isolate the Commons as an operating body from the cabinet, so intimate is the connection and so remote the idea of the formal separation of powers in England.
There are, however, other countries besides the United States, in which the executive and legislature may hold separate policies, conduct separate operations, and have clashing encounters. This was true in France before the revolution of 1958. There, in great part because the National Assembly served a fixed term and was not subject to an immediate election if its majority disagreed with the incumbent ministry, the legislature moved along under its own regimen. The bills of individual members were introduced with greater frequency and success than in Britain, and individual members successfully solicited greater legislative attention to local and bloc interests. As with the American legislatures, there was little love lost between the French Parliament and ministry (executive). At times one was led to suspect that the chief occupation of many deputies was to muster a majority to vote out a ministry by refusing its request for a law. At other times, one could remark the persistent, but encumbered, efforts of ministries to carry on a government without consulting or relying upon the Parliament that elected them. The Council of the Republic, the upper chamber of the French Parliament, could suggest amendments of bills coming to it from the Assembly, but could not otherwise obstruct lower chamber proceedings.
De Gaulle's revolutionary government of 1958, however, stabilized the legislative process at the expense of the powers of the legislature. Limits were placed upon the National Assembly's powers to deny government legislation and to force it from office. Today, for the Assembly to reject important government legislation it must be willing and able to vote a motion of censure. But a simple majority can no longer vote out a cabinet. A motion of censure now requires the signature of one-tenth of the Assembly's membership, a waiting period of forty-eight hours, and a final vote of an absolute majority of all deputies. In addition, the Assembly can be dissolved by the President any time after the first year, which strongly inhibits the tendencies of the Parliament to harrass the cabinet by provoking their defeat or preventing executive action. Gone are the days when the bills of individual members took precedence. As in Britain, the government's bill now has priority over all others. Even the subjects for parliamentary legislative enactment are constitutionally circumscribed, leaving to executive rule-making all matters not specifically reserved for Parliament. Thus France, too, has turned to strong executive leadership as a means of bringing order to legislative chaos.
The Supreme Soviet and the other legislatures of the Soviet Union are, in theory, supposed to be more powerful than any other existing legislatures, but, in actuality, have less collective power than any of their western European parallels. The legislature of the Soviet Union is called the Supreme Soviet of the U.S.S.R. (see Figure 10, Volume 1). It is bicameral, with one chamber elected by districts of equal population and the other by the soviet republics and regions that form the federal union. Each house has between 600 and 700 members and meets twice annually for about a week on the average.
The work between sessions is done by a Presidium of 32 members. A third organ is termed the Council of Ministers. Legally the Supreme Soviet elects the Council of Ministers. But this election, like practically all matters on which the Supreme Soviet votes, is settled in advance. No opposition of a fundamental nature arises.
According to the Soviet Constitution of 1936, "The legislative power of the U.S.S.R. is exercised exclusively by the Supreme Soviet of the U.S.S.R." The Constitution explicitly limits legislation to the Supreme Soviet. Other organs such as the Presidium of the Supreme Soviet and the Council of Ministers are confined to issuing decrees, decisions and orders. Thus the Supreme Soviet legally has extremely broad areas within which it may legislate.
Formal legislative procedure follows a common pattern of other parliamentary governments. The Council of Ministers originates bills; commissions or committees consider them, and suggest revisions to them; the Supreme Soviet debates them and passes them into law. Although legally it alone may legislate, the Supreme Soviet in actuality is the source only of a small proportion of the laws. The Presidium of the Supreme Soviet issues decrees that are really laws. The Council of Ministers promulgates decisions and ordinances that cannot be separated in their legal effect from laws passed by the Supreme Soviet. As Julian Towster says, "whatever the present theoretical distinctions between law passed by the Supreme Soviet, decrees issued by the Presidium of the Supreme Soviet, and the `decisions and ordinances' of the Council of Ministers, the scope and volume of its enactments make it abundantly clear that the Council of Ministers is the greatest producer of obligatory, state-enforced, activity-guiding norms in the Soviet system." Thus the Supreme Soviet, composed of deputies who must agree enthusiastically to the principles of the Party leadership, is convened only to voice approval of the government's and the Party's actions, and to affirm faith in them.
The duties of a deputy are to participate in the meetings of the Supreme Soviet and to work in its commissions, to maintain contact with the electors of his district through correspondence and visits, to receive petitioners, and to initiate action in local or central institutions for the solution of problems brought to his attention. He may address inquiries to the government or to a particular minister that must be answered within three days, and he is immune from arrest and prosecution and from legal responsibility without consent of the Supreme Soviet. Also, he receives free transportation by rail and water, and in addition to a daily allowance during sessions he receives a monthly sum for reimbursement of expenses in connection with his duties. That the life of a deputy is difficult may be surmised from Towster's description: "First, there was the difficulty of finding time to receive callers and answer correspondence while holding down a regular job in industry, agriculture, etc. Second, since most of the requests and petitions dealt with complaints against some official action or lack of such, there was the delicate job of prodding the relevant governmental agencies along without appearing to be stepping into their shoes. Finally, since the nature of the problems that a citizen could take up with his deputy was not clearly defined, many deputies found themselves overloaded with petitions of a purely personal nature, requests for jobs, etc." These facts incline one to believe that perhaps the Soviet slogan of mass participation in government is not the only explanation for the rapid turnover of personnel in the position of deputy to the Soviet.
Whatever the variations in power of the legislatures of various countries may be, it does seem that the age when legislatures were supreme, short as it was, is past. The seemingly impregnable power position that legislatures achieved a generation ago has been subjected to successful assault by new social forces. It is in order now to state what have been and continue to be the main sources of parliamentary strength and, then, what are the forces working to weaken legislatures.
The principal features of legislative supremacy have been the power to determine the most important policies of a nation, the power to supervise and control the executive branch of the government, and the power to express local interests. The first and third of these powers have often worked at cross purposes. A wholehearted attachment to the demands of one's small constituency may impede the development of a policy that appeals to the nation. For the reflection of those interests that cling to geographic or occupational constituencies, the individual legislators are often well-fitted. And many people would admit that some attention ought always to be given to small parts of the society in order that the interests of a greater part of the society may not be ruthless and overbearing.
Yet the same conditions that guarantee such fidelity to local demands, that is, elections by district or occupation, cannot be expected to provide-save in a most homogeneous community -personnel who will seek always for a solution desired by, or directed at, the good of the largest number. Nor, furthermore, can such elections, with or without a party system, be expected to furnish representatives who can consistently ignore the interests of the constituency when they conflict with those of the greater community. Even Edmund Burke, for all his faithful past service and elegant statement of the case for independent judgment by representatives, was defeated by Bristol electors who sought more obedience and less reasoned conduct.
Scarcely a public law is passed by American legislatures without contest or amendment by strategically placed legislators on behalf of their single constituencies. The same is true in all countries where legislatures have not lost their essential power to make the law. However, it is not so true in England because the party system there is so strong as to defeat or seriously hamper candidates devoted eagerly to local interests and because the Cabinet is the initiator and manager of practically all important legislation.
Historically speaking, the expressions of local interest afforded by legislatures of times past were not received with great hostility because the objects of legislation were fewer and different. From the eighteenth to the early twentieth centuries governments were not so active as they are today. There was more local self-government and the national government concentrated often only on taxation and foreign affairs. The burdens of taxation often rested equally on the constituencies of all members, and what was desirable .to one member was often equally desirable to many other members. Foreign affairs also offered the possibility for greater agreement among territorial constituencies than do internal affairs. It was when the states took up the extensive ordering of internal interests by means of legislatures that local interests were called into play more frequently and violently.
Today, individual legislators fight desperately in national legislatures to obtain local concessions on matters that once never came within the province of national legislatures. For example, the early American states conducted many more programs of internal public works than did the national government. Today that situation is reversed, and every congressman is jealous at the thought that other congressmen may be getting more money, appointments, and contracts for their districts than he for his. This attitude overflows (by the "bloc" and "bargaining" methods discussed earlier) into legislation on completely extraneous matters. A vote for a United Nations bill may depend on whether or not the friends or foes of the bill had supported an individual congressman on some matter affecting his personal and local political interests.
This issue of the conflict between local and national (or greater) interest is complicated by a grave problem that political science and philosophy have not solved: whether such a thing as knowledge of the national interest exists in such form as to enable us to discriminate between local and national interest. In extreme cases, we can make such a distinction: we can easily see that a legislator who will trade his every vote for some concession advantageous to part or all of his constituents has no conception of a national interest. But many of the most important situations perplex even the most conscientious scientist. For example, is a vote against universal military training in the national interest or in the local interest? The issue itself tells us nothing. A legislator may want UMT because the army will establish encampments on the poor land of his district or because he believes everyone should be prepared to defend his country. Contrariwise, a member may vote against UNIT because he fears the vote of mothers in his district or because he believes UNIT will defer the technical training of youth and provide no real military skills for war.
If the issues themselves are very bad indicators of their general or local nature, what remains? Two positions: (1) one may set up his own standards of general and local interests and apply it to the actions of legislators, or i(2) one may set no standard save the one stated in the last paragraph. A legislator who by all signs consistently approves or disapproves all policies because of their effect on his constituency is defined as a local interest representative and is to be sharply distinguished from one who asks himself always "Is this good for the country?"
The second distinction, though crude, is clear enough to be useful in appraising legislators. (We cannot, of course, say that such men are wise legislators; wisdom is then to be judged by additional standards, once we have determined whether a legislator is "local" or "national.") If we apply this distinction to the legislative process in countries where other factors like parties or dictators do not blur the picture, we must conclude that legislatures are essentially particularistic bodies, only moderately interested in a national interest.
This tendency of legislatures, noted especially by adverse critics of the late nineteenth and the twentieth centuries, was an open invitation to the executive to return to power, this time as presidents and dictators rather than as kings. However, legislatures had acquired powers that were exceedingly difficult to excise, and they continue to wield them with gusto.
Legislatures of the American and French type continue, through statutes, to set up, modify, and destroy various bureaus and offices. Also, through their committees and in debate, legislatures continue to investigate administrative operations and to question their propriety. By hearings, to which witnesses, no matter how reluctant, may be compelled to come, legislatures can acquire information on proposed laws and on current laws. And, finally, there remains that venerable first and very important prerogative of assemblies, the voting of funds for the conduct of the administration and courts.
A legislature that loses the power to tax and spend is no longer an important branch of government. In American legislatures, this power has been monopolized by the legislatures and jealously guarded. In fact, so intent on keeping this power have been the legislatures that the principle of equality of members was almost carried out in matters of money. That is, the amendments .to American money bills embodied the local interests of so many legislators that there was a constant scandal over the ineptitude and inefficiency of legislative budgeting, taxing, and spending.
To counter this fiscal "anarchy" American governments, including the national government, began to reduce and exclude the number of occasions on which individual members of the legislature might express their local interests. At present, the executive in many American jurisdictions, like the executive abroad, has considerable power to plan taxes and expenditures and to spend money. But the legislatures still can impede seriously the whole administration simply by refusing to vote funds or taxes. In such cases, the executive is temporarily or permanently powerless. Nothing can function until the legislature changes its position, the executive gives in, a new election is held, or a revolution erupts.
The powers of legislation, supervision, investigation, taxation, and spending have not preserved the position of legislatures. A number of social changes produced a different attitude towards legislatures. The extension of suffrage to nearly every adult broke up the class solidarity of the earlier legislatures. Once the same group that ran society also ran the government. Now the politician is primarily dependent on friendships and on a massive constituency of unknown voters. Whether parliamentary government in the name of a restricted group in society is the only kind that can work is a matter for future political scientists to decide. We only can say that universal suffrage seems to have produced a situation in which the constituents approve the actions of their legislators but do not respect them.
The middle class group of free farmers and merchants who elected the first powerful legislatures are now joined by servants, clerks, and workers. The merchants moved out of active politics, once they satisfied their demands for freedom of economic enterprise, and are presently in no mood to re-enter politics in competition with the professional lawyer and labor politician. We might note, for example, that, whereas American, French, or English merchants of the late eighteenth century would have leaped at the opportunity to force economy measures on a debt-ridden government, the private citizens' committee to support the economy proposals of the Hoover Commission in 1949 met a wall of indifference. The modern businessman tends to operate politically in the executive establishment, in an increasing number of cases.
The organization of social classes in Europe and England through labor and socialist parties cannot be considered as strengthening parliamentary government. To the contrary, executives were strengthened .and parliaments weakened. The class parties themselves obviously aimed at a strong executive (if only they were supplying it) because their radical programs required a vigorous administration if they were to succeed. Their programs were also long-range ones that could not be reviewed in toto at each sitting of the legislature. Legislatures might therefore meet to consider only less important questions. On the other hand, when in parliament as minorities, many class parties were determined to hold their own lines tight, to resist "partial" solutions, and to impede the efforts of the legislature to run the government on a day-to-day basis.
The growth of nationalism and its various consequences joined with the developing idea of a rational national interest to generate enthusiasm for conformity, for integration, and for a powerful executive to represent the nation. In times of war, the executive of every democracy has been strengthened, as much by the psychological "herding together" that occurs in crisis as by the clear efficiency of the executive for conducting war. In peacetime, in every democracy of this century, the national community has grown in people's affections to the detriment of the local community. In so far as local interests have set the tone of legislatures, the legislature has lost an important number of supporters among the politists.
Thus, today, legislatures face a moral crisis more than they do a technical crisis. There is a wide clamor for national unity and efficiency in every country; local interests, it is believed, may well be sacrificed to national interests. There is an extensive faith in planning and efficiency in government, matters usually accorded to the executive for action.
The threat to legislatures from the executive occurs in such various forms as the increasing power of the independent elected executive of the American type; the strengthening of the English cabinet executive; the growth of a permanent bureaucracy entrusted with many powers; the consignment of more prestige and power to military leaders; the growing influence of party leaders over individual legislators as in England and Russia; and the appearance of the revolutionary executive, the charismatic, popular dictator who cannot tolerate the "ineffectuality," "selfish localisms," and eternal discussions of representative assemblies.
Several lines have been pursued in defense of legislatures, but so far none of them has been sufficient to guarantee the continued ascendancy of parliaments. One theory, already described, argues that often no national interest is to be found and that the legislature, representing local interests, is the best guarantee that contentment will prevail throughout the land. This conservative argument, which could be accepted at one time when government was not active and was giving more than it was taking away, suffers now under all the hardships of an age geared to national crisis and to the demand for sacrificing individual interest to the whole. It does no good to claim that the executive decisions are no more national than the actions of legislatures; the executive branch of the government is so organized as to give an astonishing impression of unity and direction. It is enough that the executive claims not to be divided in affiliations and to be wholly dedicated to a national viewpoint. Few legislators can claim that and survive.
An alliance with powerful special interests is another line of defense against invasion of legislative power by the executive. By taking, with all their defects, the support of corporate and propertied interests, legislators individually and as groups can maintain strong positions. But such support is rarely inspiring. It is given in order to prevent national legislation that would regulate and burden business interests. It is not given in the name of abstract symbols and slogans that can win mass support.
Control of the executive or part of the executive is still another line of defense for legislative leaders. But the British House of Commons has lost most of its controls over the Prime Minister; the American governors are freeing themselves from state legislatures; and the little administrative domains that individual legislators used to carve out amongst executive agencies are being appropriated by the executive in the name of efficiency. "Ultimate" controls like impeachment, withholding of funds, and wholesale elimination of governmental functions do exist. However, legislators rarely attempt to use these controls until it is too late for them to succeed.
Another defensive technique is for legislatures to abandon all claims to legislative supremacy, and to move back to a second line of defense-investigation and criticism. It was John Stuart Mill who, in the age of legislative supremacy, first launched an influential attack on the "overworking" of the legislative principle. Let there be a strong and permanent executive, he wrote, and confine the legislature to supervision, general (vague) policies, and criticism. And, in America, many writers have agreed substantially with Mill, notable among them Charles E. Merriam, who would consign large powers of planning, policy-making, and policy execution to the elected executive and his bureaucracy, leaving advice and exposure of malfunctioning to the legislature.
A final approach to the difficulties of modern legislatures is well summarized in the study by the Council of State Governments, an organization supported by the State Governments, entitled Our State Legislatures. The study makes a number of recommendations that, if extensively adopted, would strengthen legislative bodies. Longer sessions and terms are suggested for state legislatures to allow men time to learn their jobs and time to act without fear of imminent election campaigns. Better statute-drafting is recommended, and more staff assistance for legislative committees and individual legislators is urged. Other suggestions are to reduce the number of committees; to regularize and publicize hearings; to limit the number of bills that may be introduced after the session is begun; and to restrict the numerous time-consuming private bills granting individuals pensions, damages, and other assistance.
The two major ideas here are to clear the legislative desks of trivia and confusion, and to sharpen the legislative "thinking" procedures. The legislature has a magnificent fact-finding apparatus in the hearing and committee processes. They provide opportunities for research into human behavior that are unsurpassed by the facilities of outside scientists and governmental executives. First, policy and science are joined closely together so that what is found out can be most relevant and most practical. Second, the legislature's powers are sufficient to command ordinarily inaccessible sources of information. Third, the viewpoints of a legislative committee are sufficiently diverse to prevent only one viewpoint from being investigated.
To tap these hitherto unused resources, legislators must educate themselves concerning the differences between social policy and social science in order to reassure themselves that science can study values and facts without commanding policy. Once this attitude is achieved, we might expect investment in legislative research to expand into many millions of dollars and hundreds of staff members. If we reflect that a professor who is surveying a complex social problem requires a staff of scientific assistants, it seems rather absurd that a legislator, whose needs are more crucial in the same kind of analysis and who requires dozens of analyses, should refuse to allow himself the continued services of a single social scientist. Various reforms could, conceivably, raise the prestige and power of legislatures. However, we do not know whether these or any other improvements could so streamline and change legislatures as to cause them effectively to resist the admittedly powerful influences already enumerated as weakening the position of modern legislatures. In the next chapter, in our discussion of the executive branch we will pursue farther the answer to this great question about the future of legislatures.