There are three kinds of legislatures. Consultative legislature advises the ruler or rulers on matters of law and policy. Members may be elected and appointed. In a parliamentary system, the elected legislature makes laws and also, through its leadership, serves as the executive branch of government. Finally, congressional legislatures have one or more elected groups of legislators to make law and share powers with other branches of government.
Legislatures typically perform a basic set of functions:
- They make and revise laws. This usually includes the sole or primary authority to write budgets – to officially sanction the imposition and collection of taxes, and the spending of public money.
- They engage in administrative oversight. Legislatures usually are charged with ensuring that the laws are being carried out properly by the agencies of government. In a congressional system, they may also “advise and consent” with executives on appointments to government and the making of treaties with other countries. Effectively, this means that a legislature may deny a presidential appointment, or prevent the adoption of a treat.
- They represent constituents to the government. In legislatures where elections are based on geographically defined districts, individual legislators will spend some time attempting to help out their constituents address individual problems they have with government, such as public pension benefits or securing appointments to military academies.
The biggest job of legislatures is making laws. Having legislatures make laws pushes power toward the people, who, in a functioning republic, have in some fashion elected the members of the legislature. That gives voters the power to recall legislators by electing somebody else next time around. Legislators typically have defined terms of office, usually from two to six years in length. In parliamentary systems, the term of office may be only until the next election, which could be anywhere from a month to five years. Elections can come quickly in parliamentary systems. The Earl of Bath served as British prime minister for two days in February 1746; the government collapsed when no agreed to serve with him. George Canning served as prime minister for 119 days in 1827 before an election was called.
In contrast, Sir Robert Walpole served as prime minister for 20 years, from 1721 to 1742. Legislators may be elected to represent particular districts, states or provinces within a nation, or elected in proportion to the number of votes received by their party in the election. Moreover, many nations use a combination of the two methods.
A handful of nations have consultative assemblies, which lack the lawmaking power of a traditional legislature. These include several Middle Eastern states such as Saudi Arabia, the United Arab Emirates, and Kuwait. Ostensibly communist states such as China, Vietnam, Cuba, and Laos have national assemblies, which, on paper, have lawmaking power. In practice, however, as with the Chinese National People’s Congress, they meet each year briefly and have minimal ability to make law. Consultative assemblies give the appearance of giving the people a voice, but they provide no real check on the power of the government, wherever it may be found.
China’s legislature is worth a little examination, if only because it is so different than what is found in much of the rest of the world. At 2,987 members, it is the largest legislature in the world, and still means only one member of Congress for about every 400,000 people in China. In contrast, the New Hampshire state House (part of the world’s fourth-largest legislature), has 400 members representing about 3,000 people each. Members of the U.S. House of Representatives serve about 700,000 people each.
The People’s Congress meets for a couple of weeks each year, at the same time as the Chinese People’s Consultative Conference, which is supposed to represent various interest groups in the country. Its supporters say that it works to mediate disputes between different factions within China; its critics say it is still mostly a rubber stamp for the Chinese Communist Party, which still holds sufficient ruling power in the country. Technically speaking, the members of the People’s Congress are elected by assemblies below them, and those assemblies are elected by the people. In reality, the members of the People’s Congress are primarily chosen by the party. Around 70 percent are party members, and while there are eight other political parties in China, they have all been approved by the Communists.
Legislatures in Congressional Systems
Most legislature bodies do not look like that. As the American poet John Godfrey Saxe once said, “Laws, like sausages, cease to inspire respect in proportion to how they are made.” Frequently misattributed to 19th century German Chancellor Otto von Bismarck. Legislatures can be messy, cantankerous affairs, full of arguing, bargaining, and general unease.
Let us consider the U.S. Congress, which has some differences from other legislatures but is not atypical of how the legislative process works in general. In the United States, Congress is the body of government that makes laws. All federal laws start in Congress; neither the courts nor the president has the power to make law.
Congress, like most legislatures, is an arena for the articulation of conflict. That means it is a place where the people’s business can be done without real violence. Although, in the pre-Civil War 1800s, physical attacks by one member on another were not unheard of.
While Congress’ main job is making law, it must balance the needs of making policy and meeting constituent needs. This is at the heart of the internal conflict that drives Congress—how to balance the particular needs of one’s state or district against the needs of the nation as a whole. These two things may not coincide, and sometimes it appears that members of Congress tend toward considering local needs over national ones. So, many members of Congress have railed against what they saw as excessive government spending, but did not fail to direct federal funds to their home states and districts. Similarly, members of Congress may find themselves in conflict over the needs of the nation and the needs of particular constituents and interest groups. So a member of Congress likely would say that he or she is in favor of a balanced budget, but may still vote for spending that funds a local project or a defense contractor in his or her state or district.
Congress has a strong constitutional mandate: It can levy taxes, borrow money, spend money, regulate interstate commerce, establish a national currency, establish a post office, declare war, raise and support an army and navy; establish courts; and pass all laws “necessary and proper” to implement this. It can propose amendments or call a constitutional convention; it can admit new states. The House of Representatives can elect a president. The Senate advises and consents on treaties and nominations to judicial posts. The House can impeach, and the Senate may try any officer of the government. It can investigate whatever it likes, and discipline its members.
The U.S. Congress has 535 members: 100 in the Senate, two for each state; and 435 in the House of Representatives, apportioned among the states by population (about 600,000 people per district). The House was capped at 435 by an act of Congress in 1929. The House includes non-voting delegates from the District of Columbia, Puerto Rico, Guam, the Virgin Islands, and American Samoa. DC voters do not get real representation because the national capital was put outside the boundaries of any state, as the states were all still pretty jealous of each other the late 1700s. While that is no longer as true, at various times in the nation’s history, Republicans and Democrats each feared that giving congressional representation to the district would mean more seats for the other party. The most rational solution, simply letting D.C. residents vote in Maryland’s congressional elections, has not cleared that hurdle either.
Having a two-chambered legislature – the House and Senate are coequal branches of government – slows down the legislative process. For any bill to become law, it must pass both chambers in precisely the same version. This is further complicated by the nature of the Senate. As the Senate is based on states and not on population, it disproportionately tips power toward less populous states. If you added up all the smallest states to get 51 seats (and hence a Senate majority), you would have legislators representing about 17 percent of the nation. Also, being able to block something in the Senate means being able to stop nearly everything. The Senate has an endless debate, which means that even the threat of a filibuster – talking without end on the floor of the Senate—can derail any piece of legislation. It is pretty rare for any party to have 60 seats in the Senate anymore, so invoking cloture and ending debate is not a simple task.
If Senate apportionment by the state were not in the Constitution, it would not last a day in court. In decisions in the 1950s and 1960s, U.S. federal courts ruled that legislative districts need to be equal in terms of population, usually within 1 percent. Prior that, districts often had wildly uneven populations – a good thing in a smaller district, not so good in a larger one. In Arizona, for example, the state House was apportioned by population, while the state Senate was divided by county. With the vast majority of the state’s population in only two counties (centered around Phoenix and Tucson), rural interests dominated the Legislature. That is not necessarily wrong, but it was not fair to the majority of the state’s residents.
Now, following the U.S. Census, every ten years states must redistrict, both for state legislative and U.S. House districts. Some states let legislative majority parties draw new districts, which is usually bad news for whichever party is not in the majority; other states appoint technically non-partisan redistricting commissions to do the job. Even there, that often means partisan appointees will try to get an edge in redistricting for their side.
House members are elected to two-year terms; from the start, it was intended to be the chamber of the people (although state legislatures commonly had annual elections before the adoption of the Constitution). Members of the Senate are elected to six-year terms. The original design was a more deliberative body to put a check on the temporary passions of the masses. With a six-year term, members of the Senate can afford to take a slightly longer, broader view of issues without having to face re-election quite so soon. Also, for that reason, originally they were elected by State Legislatures. By the late 19th century, this system had run into problems. State legislatures frequently could not agree on whom to send, and seats sometimes went vacant. The lack of popular control on the Senate also meant that it tended to be dominated by the interest groups, such as railroads, much to the displeasure of many voters. The 17th amendment was passed in 1913 to provide for direct election of U.S. senators.
The vice president serves as President of the Senate, and can vote to break a tie. The Speaker of the House leads the House, and the Senate Majority Leader is the boss of the Senate. The majority party typically elects both positions.
The majority party also controls the committee system, which is where the work in Congress is done. Often as not, by the time something gets to the floor, the issue is decided. This should be called McCrone’s rule, after the eminent political scientist Don McCrone, who said that nothing comes to a vote that has not already been decided. Typically, if you know you do not have the votes to get something passed, you do not bring it to the floor, unless you want to make a statement. Statements are fine, but they do not get bills passed.
The speaker has some ability to control floor debate, make committee assignments, and assign bills to committee. This can be effective in finding out whether a bill has a future. Committee chairman has similar power about their committees.
Congress convenes in early January and, with occasional recesses, will meet until anywhere from August to October. Most of the work is done in committees.
The Committee System
There are 21 standing committees in the House and 17 in the Senate, though the numbers change from year to year. They cover everything from the budget and taxes to agriculture to science. Members of Congress vie for choice committee assignments. If you are from a farm area, you do not need a guidebook to know you should be on the agriculture committee. If you have got military bases in your district, then the armed services committee would be a prudent choice. A successful member of Congress will find a specialization and become an expert. This gives the representative or senator some power, something to trade with other members, and something to hang her or his hat on when she or he goes home to the district.
Committees divide labor and allow specialization. It would be difficult for any member of Congress to be an expert on everything; committee specialization allows members of Congress to be good at something, and, hopefully, share that expertise with others.
Committees are further broken down into subcommittees. Subcommittees typically are where the nuts and bolts work of legislating is done. For a bill to become law, some member of Congress must sponsor it. Most bills can start in the House or the Senate, where they will be assigned to at least one committee, and maybe more if there is revenue or spending impact. The bill may get scheduled for a hearing, and maybe even a vote in the subcommittee. If it survives that, it must be voted out by the committee, and then on to the House or Senate floor. If it survives all that, it goes to the other chamber, where it must go through the same process all over again. For the bill to become law, it must pass both chambers in precisely the same version. If House or Senate amendments change one version, the two sides may call a conference committee featuring members of both parties, who may be able to hammer out a compromise. Moreover, then it must be signed by the president.
One of Congress’ most important jobs is among the least glamorous: administrative oversight. Congressional committees spend much time talking and listening with members of the executive branch to try to figure out if everything is working the way the law said it was supposed to. However, there are few immediate rewards for the essential but unexciting task of oversight. An incumbent seeking re-election cannot go home and get much mileage out of “Vote for me; I oversaw the routine handling of road repair and bridge building.” Moreover, yet that is a more critical task than some high-profile issues.
Among the most important committees is the House Rules Committee. This is typically is chaired by the speaker or by someone they trust, and it sets the terms and conditions of debate, and the path through which legislation must travel. Contrast that with the Senate and its endless debate, and where the threat of a filibuster can hold up even innocuous legislation if somebody has his knickers in a twist over something. A single senator can hold up a judicial or other federal appointments for any reason as well. One school of thought suggests that the Senate needs some reform, but its ability to stop the train may look better or worse depending on your point of view. If you are a conservative and the Senate is blocking a liberal agenda, this might look OK, and vice versa. Absent a constitutional amendment, the Senate writes its own rules, so it would take something dramatic to force a change.
The Senate “advises and consents” on presidential appointments, including high administrative officials and federal judges, and treaties with foreign nations. That means the Senate conducts hearings on appointments and treaties, and either approves or denies them. McCrone’s Rule comes into play once again, as the Senate will signal to the president that a nominee or a treaty is not up to standard long before it comes to a vote. Moreover, unlike congressional parties, presidents are much less interested in making a statement; if the Senate says no, the president looks terrible.
Members of Congress are not alone. Committee staff work on policy; legislative (personal) staff work on constituency concerns. Congress has over 30,000 staffers. Constituency service is an integral part of what members of Congress do—everything from meeting the home folks, both at home and in the capital, to help citizens sort out their issues with federal agencies. Members of Congress who are seen as too remote from their states or districts typically have a harder time getting re-elected. So they maintain offices back home as well as in Washington. Despite a travel allowance, serving is easier for members from East Coast states than for those from the west, who have a lot longer to travel and still maintain some residence back home. An average member works more than 60 hours a week, at a salary of $174,000 a year, plus a travel allowance and office support. The travel allowance is reasonable if you live close by, less reasonable if you do not, and the salary would be comfortable if you lived in one place instead of two.
Congress and the President
The president must sign bills into law. They can veto them. Congress can override the veto by a two-thirds vote. However, that has happened only 4 percent of the time since George Washington was president. Presidents do not use veto all that often; Richard Nixon vetoed a few dozen bills in his entire term in office, and that was regarded as a lot. The two sides must work together, and so there is much give and take, and Congress will take care in sending the president bills he is less likely to veto unless they are explicitly trying to embarrass him. Meanwhile, Congress has resources with which to challenge the president: The General Accounting Office, the Congressional Budget Office, and the Office of Technology Assessment. Information is power in government, and typically is seen as more impressive than money.
Congress tends to have more power in domestic policy than in foreign affairs. Foreign policy often requires quick and decisive action; Congress is not designed for this. Domestic policy, on the other hand, can be more careful and deliberative, and Congress excels at this.
Members of Congress frequently form caucuses of members concerned about a variety of issues, from economic interests to ethnicity. These can form blocs within Congress. In recent years, for example, moderate Republicans have forced Republican leadership to back down on sweeping changes to environmental laws.
Congress is not like the rest of the country. Congress is older, whiter, richer than the nation as a whole. In 2012, it was 8 percent African-American, 5 percent Hispanic-American and less than 2 percent Asian-American, so that is now whiter than it was 20 years ago even as the nation has become more diverse. Only 17 percent of members are women, and that is the highest ever. Nearly 16 percent of members are over 70, and only 4 percent are under 40. The average age is 58. The average House member has served for ten years, and the average Senator has served 13. Eighty-five percent of members are married, and fewer than 8 percent are not some flavor of Christianity. Nearly all have college educations, with professions most often listed as public service/politics, business, and law.
Legislatures in Other Countries
Nations in North and South America tend to have congressional-style governments, with separately elected presidents who are not entirely tied to the whim of the legislature. The alternative to a congressional-style legislature is the parliamentary style, an approach more common to Europe, Africa, and Asia.
Moreover, Canada, which is an excellent example of how parliamentary legislatures work. The Canadian Parliament is divided into two chambers, the House of Commons and the Senate. More power and authority ride in the 308-member House of Commons. The members are elected in winner-take-all elections in districts known as ridings, which may derive from an old British term, which may derive from an old Norse term. The number of seats is expected to rise for the next election, tentatively scheduled for Oct. 19, 2015. At one seat per 110,000 people, the level of representation is much higher than in the U.S. at one seat per 650,000 people. Terms are up to five years or until the next election, which is one key difference for parliamentary systems. The ruling party or coalition of parties may call for an election whenever they want, or a no-confidence vote may force an election in the Commons.
The most significant difference between parliamentary systems and congressional systems is in the structure of government. In the congressional system, power is shared and divided between the different branches of government, including the legislative, executive, and judicial. In a parliamentary system, the chief legislative body serves as both the executive and legislative branches. The head of government is the prime minister, who is chosen either by the majority party or by the coalition that builds a majority in the legislature. All of what in the United States would be cabinet secretaries appointed by the president are in Canada simply members of Parliament, appointed by the prime minister and the majority party. So instead of a secretary of defense and chairmen or women of the House and Senate defense committees, they have a defense minister who is not only in charge of the agency, he or she can vote on its budget and policies.
Canada’s government has some vestiges of its British ancestry. The governor general is the representative of the British crown in Canada. The British monarch appoints he or she on the advice of the Canadian prime minister. Although governors general take their roles seriously, they are primarily ceremonial. The 105-member Senate is appointed by the governor general, again on the recommendation of the prime minister. The Senate is somewhat like the British House of Lords. It can debate and amend pieces of legislation, but cannot introduce any measures relating to spending and taxes. Once appointed, Senators may remain in office until age 75. The Senate does, on occasion, block legislation from the House of Commons, at various times, holding up or rejecting bills relating to trade, abortion, greenhouse gases, and taxes. The House of Lords in Great Britain has no say on revenue or spending measures.
As with the congressional system, parliamentary systems divide work by committees. Unlike congressional systems, a change in government via election can mean rapid change in governmental policies. With most of the power vested in one chamber, the only serious check on the power of the majority is through elections, although court systems provide some check on power in some parliamentary states. However, typically, in Canada, a victory by the Conservatives or the Liberals will mean a definite turn toward that party’s priorities. Contrast that with the United States, where a new congressional majority may face presidential vetoes, or where Republican control of one chamber and Democrat control of another may provoke disagreement and stalemate. In the British House of Commons, a debate is severely limited, so that unlike in the U.S. Congress, for example, the minority party is less able to hold up legislation it does not like. So things may happen more quickly in a parliamentary system.
The parliamentary form of government is the most widely used form of government in the world. Because there are so many variations on parliamentary government, the following essay will outline some of the essential elements that most of these governments have in common.
The use of the term “parliament” first occurred in 1236 in England; previously, this group of the king’s closest advisors had been called the “council.” After agreeing to the principle of “common consent” in the Magna Carta, King John had to increase the size of this group of advisors and include more commoners. He then had to submit his requests for increased taxation to this newly expanded group. Two distinct groups emerged among the commoners: the landed gentry, and the wealthy merchants and lawyers.
The word “parliament” comes from the French “parler,” which means “to talk” or “to discuss.” English parliamentary procedure, such as Jefferson’s Manual of Parliamentary Procedure, developed not to facilitate talks, but to facilitate decision-making. Although the British model of parliament, known as the Westminster Model, is held up as the “Mother of all Parliaments,” it is unique in that it developed over time from tradition, as opposed to being democratically enacted by way of a constitution.
Parliament was initially conceived as the superior court, and could address any grievance. The “lords” were where the main business of Parliament took place: this body was made up of dukes, earls, barons, bishops, and abbots, as well as key officers of the state, including the chancellor of the exchequer, the treasurer, the senior royal judges and key members of the household,. The “commons” were made up of petitioners and suitors. By the early 14th Century, “common” petitions began to represent the entire population and were used to resolve grievances in exchange for tax increases.
Parliamentary government is known for its unity of governmental power; however, this is different from the unitary government. Parliamentary governments exist in unitary systems, like France, as well as in federal systems, like India. Unity of power in parliamentary systems refers to both the electoral system as well as how government ultimately functions.
In most parliamentary systems, electors typically vote for representation in the lower house, and those elections are typically multi-party and focus more on the party than the specific candidate. Then a majority coalition in parliament selects the prime minister from amongst themselves (which now includes the upper house), and then the prime minister selects the cabinet from among the remaining members of parliament. The “Government” now consists of a majority party coalition in the lower chamber, with a prime minister chosen from among them to lead their agenda to the passage, and a supportive cabinet ready to implement it: unity! (Remember: the upper house is typically a weak one with little power.)
Parliamentary government is also known for the supremacy of parliament, as opposed to a system with checks-and-balances that might severely restrict each branch of the government. It is typically tri-cameral, with a lower house (i.e., House of Commons, National Assembly, House of the People, House of Representatives), an upper house (i.e., House of Lords, Senate, Council of Elders, Council of States, National Council of Provinces), and the Monarch or President (usually an honorary figurehead). Parliament is charged with a variety of functions, including enacting laws and treaties (legislative), holding government accountable for administrative functions (executive), taxing, and addressing or inquiring into essential policy matters. This last function is sometimes seen as the role of the “loyal opposition,” members of parliament not in the ruling majority coalition. Moreover, finally, the upper house has historically held the powers of the judicial branch. The result is all three powers, legislative, executive, and judicial, are all found within parliament, making it all-powerful, or supreme!
Parliamentary government is characterized as having a “divided executive”: there is the president or monarch, who is the honorific head of state (although they can be given greater powers), and the prime minister (also called premier or chancellor), who is the head of the “government”, which includes their cabinet of ministers and parliament. The prime minister is the “first among equals” because he/she was elected to be a member of parliament; they have the power to appoint/dismiss cabinet members, control the agenda, and to undertake major diplomatic/military ventures.
Many parliamentary governments function without a president or monarch, leaving the prime minister with all leadership responsibilities: others retain monarchs from the past or create the position of president to fill the ceremonial role of head of state and relieve the prime minister to focus on being the head of the government. Typically the powers of the president in a parliamentary system are limited to the formalities of dissolving parliament and signing bills into law.
The president is dependent on whatever body elected them: parliament, the voters, an electoral college, or the subunits of the country (i.e., states). The prime minister is dependent on parliament: they can be removed by a vote of censure or by parliament’s refusal to pass meaningful legislation desired by the government. If there is a vote of “no confidence,” the prime minister, the cabinet, or any individual minister is obligated to resign; Germany developed the “constructive vote of no confidence” which requires a vote of “no confidence” be accompanied by the election of a replacement.
The lower house is typically elected through universal suffrage, usually for a maximum number of years (4-5), although the lower house can be dissolved early if the ruling government faces a vote of “no confidence.” The lower house selects the prime minister from among its members, which is why he/she is referred to as the “first among equals.” The prime minister then selects their cabinet from among the remaining members of parliament, including the upper house members; these cabinet members then become the administrators of the programs that parliament passes. The lower house is the most powerful house, and because it best represents the people, most countries require “money bills” to originate in this house.
Membership in the upper house can be hereditary, appointed, or elected, sometimes by the subunits of government (i.e., states). There can be financial requirements, maximum age limits, and sometimes it is used as a political reward. It is the weaker of the two houses, but their council was intended to remove decision making from economic considerations to a more thoughtful level, so their participation can be useful and valued.
Historically, parliamentary elections and governments are organized by their multi-party systems. Candidates for parliament typically campaign as a representative for the party, so it is the party candidate that is elected; in some countries, it is the actual party that is elected, and then the party appoints representatives that become members of parliament. In other countries, it is a combination of the two. Party leaders speak for their members, and when there are two major parties, such as in England, the minority party is referred to as “the loyal opposition.”
Each house typically has a “speaker” whose job it is to preside over the debate, punish noncompliant members, and may or may not be able to vote; sometimes the prime minister fills the role of “speaker.” Other participants in parliament include “whips,” who also discipline non-compliant party members and make sure members show up for votes, “clerks,” who are procedural experts (law clerks are typically available for consultation by members of parliament), “sergeant-at-arms,” who secure the physical building, and “librarians”, who maintain a record of ALL references to parliament (that jurisdiction may include the entire country).
Members of parliament have two functions: the public function (interacting with people directly) is what gets them re-elected, and the parliamentary function of legislating. There can be 40+ members of parliament who serve in the cabinet, and another 30+ minister who head departments without cabinet-level rank. These departments are staffed with civil service recruits who are selected through open competitive exams and are promoted strictly on merit, so while ministers come and go, civil servants provide continuity and professionalism. In addition to controlling government administration, government bills that relate to a minister’s department are controlled by that minister. Typical departments include defense, state, treasury, commerce, education, health, and welfare.
How does a bill become law in a parliamentary system? The lower house and the upper house have similar procedures. However, the upper house is much less formal. First, a bill is deposed: it is a “public bill” if it deals with the community as a whole, a “private bill” if it deals with a subgroup within the community, or it could be a hybrid. Next is the “first reading,” which is a formality to put the bill on the public record. During the “second reading,” the general principles are debated, which is followed by the “committee stage” where a specialized committee examines the bill clause-by-clause. At the “report stage,” the bill goes to the floor and is debated, including consideration of amendments. Finally, the “third reading” is a vote on the bill as amended by the other house, however, because the upper house is weak in most parliamentary governments, constitutions may stipulate that money bills cannot be amended or delayed, or even that bills may be presented for signing after two consecutive sessions, regardless of the disapproval of the upper house. The final stage is signing, typically by the monarch or president.