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Looking Forward to DC Gridlock

Washington, D.C. Southwest-Southeast Freeway

I am looking forward to gridlock in Washington like we have not witnessed for twelve years. It would even be better if we had won a majority in the US Senate as well. Then it would be more comparable to the US Congress from January 3, 1995 to January 3, 2001. It is during this period of time in US History when the US Federal government had a budget surplus. It is the US Congress that controls the budget.

Since people have such a short memory span to remember things that have not been employed much for twelve years, I searched the internet for information about the veto and the amendment processes.

When a bill is passed by both the House and Senate, it is sent to the president for his signature. All bills and joint resolutions, except those proposing amendments to the Constitution, must be signed by the president before they become law. Amendments to the Constitution, which require a two-thirds vote of approval in each chamber, are sent directly to the states for ratification. However an amendment is proposed, it does not become part of the Constitution unless it is ratified by three-quarters of the states. When presented with legislation passed by both houses of Congress, the president is constitutionally required to act on it in one of four ways: sign it into law within the 10-day period prescribed in the Constitution, issue a regular veto, let the bill become law without his signature or issue a “pocket” veto.

Regular veto
When Congress is in session, the president may, within the 10-day period, exercise a regular veto by sending the unsigned bill back to the chamber of Congress from which it originated along with a veto message stating his reasons for rejecting it. Currently, the president must veto the bill in its entirety. He may not veto individual provisions of the bill while approving others.

Bill becomes law without president’s signature
When Congress is not adjourned, and the president fails to either sign or veto a bill sent to him by the end of the 10-day period, it becomes law without his signature.

The pocket veto
When Congress is adjourned, the president can reject a bill by simply refusing to sign it. This action is known as a “pocket veto,” coming from the analogy of the president simply putting the bill in his pocket and forgetting about it. Unlike a regular veto, Congress has neither the opportunity or constitutional authority to override a pocket veto.

When the President returns a bill to the chamber of Congress from which it came, along with his objections in the form of a veto message, that chamber is constitutionally required to “reconsider” the bill. The Constitution is silent, however, on the meaning of “reconsideration.” According to the Congressional Research Service, procedure and tradition govern the treatment of vetoed bills. “On receipt of the vetoed bill, the President’s veto message is read into the journal of the receiving house. After entering the message into the journal, the House of Representatives or the Senate complies with the constitutional requirement to ‘reconsider’ by laying the measure on the table (essentially stopping further action on it), referring the bill to committee, postponing consideration to a certain day, or immediately voting on reconsideration (vote on override).”

Overriding a veto
Action by both the House and the Senate is required to override a presidential veto. A two-thirds majority vote of the Members present is required to override a presidential veto. If one house fails to override a veto, the other house does not attempt to override, even if the votes are present to succeed. The House and Senate may attempt to override a veto anytime during the Congress in which the veto is issued. Should both houses of Congress successfully vote to override a presidential veto, the bill becomes law. According the the Congressional Research service, from 1789 through 2004, only 106 of 1,484 regular presidential vetoes were overridden by Congress.

There have been actions taken ever since the foundation of this nation to try and improve efficiency and eliminate the gridlock in our Federal Government, and unfortunately they have occasionally succeeded in recent history. They try to use earmarks to logroll bills thru the US Congress. They create automatic formulas to avoid votes on congrssional pay hikes, tax hikes, and social security and medicare payments. I recently had a conversation with a certain regular RedState rooster about how I dislike the automatic triggeer language added to bills like what they did in 2001 with the tax cut bill. His reply

Nothing in the Constitution stops any Congress from doing anything to change current laws at any time, nor does it compel them to act or not act in any way. Experience has taught conservatives that we get better results when we sunset spending bills as that would not allow a future Congress to continue bad spending unless they act. In other words, they remove the luxury from a future congress to allow bad spending thru inaction.

The logic is impeccable, and I can’t disagree. The major problem is that the left will never agree in Congress to only putting an expiration date on a spending bill. They will insist on an expiration date on any bill allowing citizens to keep more of their own money. This is why I prefer a bill is written strictly on its merits with no added language at all.

Another major change from how the Founders intended the architecture of the US Government is the 17th amendment. There is a blogger, David Gans, who opines how tea partiers who favor repealing the 17th are just ignorant of the history. Todd Zywicki does an excellent job of destroying Gans here. Gans says the election of US Senators by state legislatures was a complete disaster of fomenting corruption and adding gridlock to the state legislatures. The actual history reports a different account. There were allegations of corruption in less than one-half of one percent of Senate elections even during the period where corruption was thought to be most widespread. Historian C.H. Hoebeke found 382 electoral challenges in the House from 1789-1907 and during that same period there were 15 in the Senate.

Moreover, the case for believing that direct election would eliminate corruption is quite dubious. First, considering that Congressmen from time to time end up with stacks of hundred dollar bills in their office refrigerators I doubt that most people would agree with the proposition that democratic elections inoculate politics from bribery and corruption. Historians have observed that the great political winners (and major supporters) from the enactment of the Seventeenth Amendment were corrupt urban machines, which could bribe, intimidate, and deliver large numbers of voters to the polls to do their bidding.

Election of senators by state legislatures was a cornerstone of two of the most important “auxiliary precautions”: federalism and the separation of powers. Absent some direct grant of federal influence to state governments, the latter would be in peril of being “swallowed up,” to use George Mason’s phrase. Even arch-centralizer Hamilton recognized that this institutional protection was necessary to safeguard state autonomy. In addition, the Senate was seen as a means of linking the state governments together with the federal one. Senators’ constituents would be state legislators rather than the people, and through their senators the states could influence federal legislation or even propose constitutional amendments under Article V of the Constitution.

Under the original arrangement, senators had strong incentives to protect federalism. They recognized that their reelection depended on pleasing state legislators who preferred that power be kept close to home. Whereas House members were considered representatives of the people, senators were considered ambassadors of their state governments to the federal government and, like national ambassadors to foreign countries, were subject to instruction by the parties they represented (although not to recall if they refused to follow instructions). And they tended to act accordingly, ceding to the national government only the power necessary to perform its enumerated functions, such as fighting wars and building interstate infrastructure. Moreover, when the federal government expanded to address a crisis (such as war), it quickly retreated to its intended modest level after the crisis had passed.

Repealing the Seventeenth Amendment would not be a panacea for what ails the American political and constitutional system. As during the era before the Seventeenth Amendment, many states would probably adopt either de facto direct election of senators, in which legislatures essentially agree to ratify the popular vote, or attenuated forms of it, such as primaries or conventions to select party nominees from whom the legislatures choose. And much work would remain to be done to restore the public’s understanding of the difference between a direct democracy and a democratic constitutional republic. But repeal would be a step in the direction of restraining an imperialistic central government and frustrating special-interest influence. Whether or not it is good politics, it remains sound constitutional design. And it would help promote the gridlock that I look forward to.

Cross-posted at The Minority Report

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