Professional Documents
Culture Documents
Chapter 3: Federalism
Devolution – the effort to devolve onto the states the national government’s functions in
areas such as welfare, health care, and job training. Between 1994-1996, Republican
majorities in the House and Senate made proposals to accelerate the devolution of national
power. There are three main factors driving devolution: the beliefs of devolution’s
proponents, the realities of deficit politics, and the views of most citizens. By 1994 many
governors of both parties were convinced that the time had come to let state capitals take
the lead in figuring out how best to address social problems and administer public health
and welfare programs. Congressional Republicans sought not only to fund entitlement
programs with block grants instead of categorical grants but also to make major cuts in
entitlement spending.
Block grants – money from the national government for programs in certain general areas
that the states can use at their discretion within broad guidelines set by Congress
Federalism – a political system in which there are local units of government, as well as a
national government, that can make final decisions with respect to at least some
governmental activities and whose existence is specially protected. Local units exist
independently of the preferences of national government and can make decisions on a least
some matters without regard to those preferences. Political power is locally acquired by
people whose careers depend for the most part on satisfying local interests. As a result,
though the national government may have vast powers, it exercises many of these powers
through state governments. Federalism has many effects, but its most obvious effect has
been to facilitate the mobilization of political activity. A federal system, by virtue of the
decentralization of authority, lowers the cost of organized political activity. Federalism was
one device whereby personal liberty was to be protected.
Sovereignty – supreme or ultimate political authority. A sovereign government is one that
is legally and politically independent of any other government
Unitary system – one in which sovereignty is wholly in the hands of the national
government, so that the states and localities are dependent on its will
Confederation – a system in which the states are sovereign and the national government is
allowed to do only that which the states permit
Federal regime – one in which local units of government have a specially protected
existence and can make some final decisions over some governmental activities
Hamilton’s view of federalism – since the people had created the national government,
since the law and treaties made pursuant to the Constitution were the “supreme law of the
land,” and since the most pressing needs were the development of a national economy and
the conduct of foreign affairs, the national government was the superior and leading force in
political affairs and its powers ought to be broadly defined and liberally constructed.
Jefferson’s view of federalism – the federal government was the product of an
agreement among the states; and though the “the people” were the ultimate sovereigns,
the principal threat to their liberties was likely to come from the national government. Thus
the powers of the national government should be narrowly constructed and strictly limited.
McCulloch v. Maryland – James McCulloch, the cashier of the Baltimore branch of the Bank
of the US, which had been created by Congress, refused to pay a tax levied on that bank by
the state of Maryland. He was convicted for failing to pay the tax. The Court decided that,
although the federal government possessed only those powers enumerated in the
Constitution, the “extent” of those powers required interpretation. To carry out these powers
Congress may reasonably decide that chartering a national bank is “necessary and
proper” to fulfilling its power to manage money. Chief Justice John Marshall decided that the
government of the US was not established by the states, but by the people, and thus the
federal government was supreme in the exercise of those powers conferred upon it. having
already concluded that chartering a bank was within the powers of Congress, Marshall then
argued that the only way for such powers to be supreme was for their use to be immune
from state challenge and for the products of their use to be protected against state
destruction. The states may not tax any federal instrument.
Nullification – the right of the states to nullify a federal law that, in the states’ opinion,
violated the Constitution
Special-act charter – applies to a certain city and lists what that city can and cannot do
General-act charter – applies to a number of cities that fall within a certain classification,
usually based on population
Dillon’s rule – authorizes a municipality to exercise only those powers expressly given,
implied by, or essential to the accomplishment of its enumerated powers
Home-rule charter - reverses Dillon’s rule and allows a city government to do anything
that is not prohibited by the charter or state law. City laws cannot be in conflict with state
laws, and the states can pass laws that preempt or interfere with what home-rule cities want
to do
Dual federalism – holds that that though the national government is supreme in its sphere,
the states are equally supreme in theirs, and these two spheres of action should be
separate. Applied to commerce, this implies that there are such things as interstate
commerce, which Congress can regulate, and intrastate commerce, which only the states
can regulate, and the Court can tell which is which.
United States v. Lopez – the Court held that Congress had exceeded its commerce clause
power by prohibiting guns in schools
United States v. Morrison – the Court said that attacks against women are not, and do
not substantially affect, interstate commerce, and hence Congress cannot constitutionally
pass the Violence Against Women Act
Printz v. United States – the Court invalided a federal law that required local police to
conduct background checks on all gun purchasers. The Court ruled that the law violated the
10th Amendment by commandeering state governments to carry out a federal regulatory
program.
Alden v. Maine – the Court held that state employees could not sue to force state
compliance with federal fair-labor laws
Federal Maritime Commission v. South Carolina Ports Authority – the Court
expanded states’ sovereign immunity from private lawsuits
Police power – a generally recognized state power. It refers to those laws and regulations,
not otherwise unconstitutional, that promote health, safety, and morals. Thus the states can
enact and enforce criminal codes, require children to attend school and citizens to be
vaccinated, and restrict the availability of pornographic materials.
Initiative – allows voters to place legislative measures directly on the ballot by getting
enough signatures on a petition
Referendum – enables voters to reject a measure adopted by the legislature. Sometimes
the state constitution specifies that certain kinds of legislation must be subject to a
referendum whether the legislature wishes it or not
Recall – a procedure whereby voters can remove an elected official from office. If enough
signatures are gathered on a petition, the official must go before voters, who can vote to
leave the person in office, remove the person from office, or remove the person and replace
him with someone else.
Grants-in-aid – money that Congress gives the states. The greatest growth of these
programs began in the 1960s and has continued steadily ever since. They provide state and
local governments with roughly 1/5 of their annual budgets. The system grew so rapidly
because it helped state and local officials resolve a dilemma: on one hand they wanted
access to the superior taxing power of the federal government; on the other hand, prevailing
constitutional interpretation—at least until the 1930s—held that the federal government
could not spend money for purposes not authorized by the Constitution. The solution was to
have federal money put into state hands. Until the 1960s most federal grants-in-aid were
conceived by or in cooperation with the states and were designed to serve essentially state
purposes. However, in the 1960s the federal government began devising grant programs
based less on what states were demanding and more on what federal officials perceived to
be important national needs. Federal officials were the principal proponents of grant
programs to aid the urban poor, combat crime, reduce pollution, and deal with drug abuse.
Some of these programs even attempted to bypass the states, providing money directly to
cities or even to local citizens groups.
Why federal money is so attractive to state officials – the money is already there.
During most of the 19th century, the federal government was taking in more money than it
was spending. The high-tariff policies of the Republicans produced a large budget surplus.
By the mid-20th century, the federal income tax proved to be a flexible tool of public finance,
for it automatically brought in more money as economic activity grew. Third, the federal
government, unlike the states, managed the currency and thus could print more money
whenever it needed it. Federal money to states seems like “free” money. That every state
has an incentive to ask for federal money to pay for local programs means that it is difficult
for one state to get money for a given program without every state’s getting it.
Intergovernmental lobby – made up of mayors, governors, superintendants of schools,
state directors, county highway commissioners, local police chiefs, and others who had
come to count on federal funds. The purpose of this lobby is to obtain more federal money
with fewer strings attached.
Categorical grants – a grant for a specific purpose defined by federal law. Such grants
usually require that the state or locality put up money to “match” some part of the federal
grant, though that amount can be quite small. Governors and mayors often complain about
categorical grants because their purposes are too narrow to meet local needs. One response
to this problem was to consolidate several categorical or project grant programs into a
single block grant devoted to some general purpose and with fewer restrictions on its use.
They are supervised by special committees of Congress.
Block grants – began in the mid-1960s to consolidate various categorical grant programs.
They grew more slowly than categorical grants because of the different kinds of political
coalitions supporting each; the federal government likes the control it has over categorical
grants. Also, because this program and revenue sharing cover such a broad range of
activities, no single interest group has a vital stake in pressing for their enlargement.
Revenue sharing – adopted in 1972 with the passage of the State and Local Fiscal
Assistance Act. It distributes about $6 billion/year in federal funds to states and localities,
with no requirement as to matching funds and freedom to spend the money on almost any
governmental purpose. The goal of this and the block grant program was to give the states
and cities considerable freedom in deciding how to spend money while helping to relieve
their tax burdens. However, the money available from block grants and revenue sharing did
not grow as fast as the states had hoped nor as quickly as did the money available through
categorical grants. The federal government also steadily increased the number of strings
attached to the spending of this money.
Conditions of aid – when the federal government tells the state government what it must
do if it wants some grant money. Some conditions are specific to particular programs, but
most are not.
Mandates –when the federal government tells the states what they must do. Sometimes
the mandates must be observed only if the states take federal grants, but sometimes they
have nothing to do with federal aid. Most mandates concern civil rights and environmental
protection. Some mandates create administrative and financial problems, especially when
they are written in vague language. Some mandates take the form of regulatory statutes
and amendments that expand on previous legislation. Others represent new areas of federal
involvement. The federal courts have helped fuel the growth of mandates based on their
current interpretation of the 10th Amendment.
Operational grants – for purposes such as running state child-care programs
Capital grants – for building local wastewater treatment plants
Entitlement grants – for transferring income to families and individuals. Includes AFDC
and Medicaid.
Second-order devolution – a flow of power and responsibility from the states to local
governments
Third-order devolution – the increased role of nonprofit organizations and private groups
in policy implementation
Welfare surpluses – the billions of dollars in unspent welfare funds that the states
amassed in the late 1990s after cutting welfare programs, permitting states to increase their
spending.
Senate
-committee meetings to be public unless members vote to close them
-committee chairmen to be selected by secret ballot
-no senator to chair more than one committee
-six-year term limit on all committee chairmen
These rules give greater power to individual members and lessen the power of party leaders
and committee chairmen. The decentralization of the House means that is much harder for
chairmen to block legislation they do not like or discourage junior members from playing a
large role.
Staff responsibilities – to help constituents solve problems. About 1/3 work in the local
office of the member of Congress. As the workload of Congress has increased, the role of
staff members in devising proposals, negotiating agreements, organizing hearings, writing
questions, drafting reports, and meeting with lobbyists and administrators has grown. The
advocacy role of staff members has led them to find and promote legislation for which a
congressman can take credit. Members of Congress are becoming increasingly reliant on
staff members to deal with one another, causing Congress to become less collegial, more
individualistic, and less of a deliberative body.
Congressional Research Service – responds to government requests for information. It
does not recommend policy, but will look up facts and indicate the arguments for and
against a proposed policy. It also keeps track of every major bill before Congress and
produces a summary of each bill introduced.
General Accounting Office – investigates agencies and policies and makes
recommendations on almost every aspect of government. The head of the GAO—the
comptroller general—is appointed by the president (with the consent of the Senate), but
works more for Congress than the president.
Congressional Budget Office – advises Congress on the likely economic effects of
different spending programs and provides information on the costs of proposed policies. It
prepares analyses of the president’s budget and economic projections
How a bill becomes a law – there is ordinarily an advantage to the opposition of a bill
because there are many point at which action can be blocked. This means that to get
something done, a member of Congress must either assemble a majority coalition or take
advantage of temporary enthusiasm for some new cause. Any member of Congress may
introduce a bill. If a bill is not passed by both houses and signed by the president within the
life of one Congress, it is dead and must be reintroduced during the next Congress.
Congress usually initiates legislation, as opposed to the executive branch. Even when the
president is the principal author of a bill, he usually submits it only after careful consultation
with key congressional leaders. The president himself cannot introduce legislation. A bill is
referred to a committee for consideration by either the Speaker of the House or the
presiding officer of the Senate. All bills for raising revenues originate in the House.
Most bills die in committee. Bills of general interest—many of which are drafted in the
executive branch but introduced by a member of Congress—are assigned to a subcommittee
for a hearing, where witnesses appear, evidence is taken, and questions are asked. These
hearings are used to inform members of Congress, to permit interest groups to speak out,
and to build public support for a measure favored by the majority of the committee. Though
committee hearings are necessary and valuable, they also fragment the process of
considering bills dealing with complex matters.
After the hearings the committee or subcommittee will “mark up” the bill. These changes do
not become part of the bill unless they are approved by the house of which the committee is
a part. If a majority of the committee votes to report a bill out to the House or Senate, it
goes forward. For a bill to come before either house, it must be first be placed on a calendar.
There are 5 calendars in the House and 2 in the Senate. Though a bill goes on a calendar, it
is not necessarily considered in chronological order or considered at all. In the Senate, bills
may be considered in any order at any time whenever a majority of the Senate chooses. The
majority leader, in consultation with the minority leader, schedules bills for consideration.
The House usually plows through its legislative schedule, ignoring individual members’
complaints in favor of getting its work done. In contrast, the Senate majority leader must
accommodate the interests of individual senators before proceeding with the Senate’s
business.
Once on the floor, the bills are debated. In the House all revenue and most other bills are
discussed by the entire floor present at the time. The Committee of the Whole discusses and
amends the bill, but technically cannot pass it. to do that the Committee of the Whole
reports it back to the House, which takes final action. During the debate in the Committee of
the Whole, the committee sponsoring the bill guides the discussion, divides the time equally
between proponents and opponents, and decides how long each member will be permitted
to speak. If amendments are allowed under the rule, they must be germane to the purpose
of the bill—riders are not allowed—and no one may speak for more than 5 minutes on an
amendment. The sponsoring committee almost always wins; its bill, as amended by it,
usually is the version that the House passes.
In the Senate, there are no rules limiting debate, and members may speak for as long as
they can stay on their feet. Amendments need not be germane to the purpose of the bill,
and thus the Senate often attaches riders to its bills. The opportunity to offer nongermane
amendments gives a senator a chance to get a bill onto the floor without regard to the
calendar or the schedule of the majority leader. A senator can get a House-passed bill put
directly onto the Senate calendar without committee action. Filibusters are becoming
increasingly common, meaning that a party cannot control the Senate unless it has 60
members.
If a bill passes the House and Senate in different forms, the differences must be reconciled if
the bill is to become law. If they are minor, the last house to act may refer the bill back to
the other house, which then accepts the alterations. If the differences are major, it is often
necessary to appoint a conference committee to iron them out. Only a minority of bills
require a conference. Each house must vote to form such a committee. The members are
picked by the chairmen of the House and Senate standing committees that have been
handling the legislation, with representation given to the minority and majority party. In
most cases the conference reports tend to favor, slightly, the Senate version of the bill.
The bill, now in final form, goes to the president. If a veto is cast, the bill returns to the
house of origin. There an effort can be made to override the veto. This requires that 2/3 of
those present must vote to override.
Public bill – pertains to general public affairs
Private bill – pertaining to a private individual, such as a person pressing a financial claim
against the government or seeking special permission to become a naturalized citizen.
Today many of the matters addressed by private bills have been delegated to administrative
agencies or the courts.
Simple resolution – passed by either the House or Senate, used for matters such as
establishing the rules under which each body will operate
Concurrent resolution – settles housekeeping and procedural matters that affect both
houses. Simple and concurrent resolutions do not need presidential approval and do not
have the force of law
Joint resolution – requires the approval of both houses and the signature of the president;
it is essentially the same as a law. It can be used to propose a constitutional amendment; in
this case it must be approved by a 2/3 vote in both houses, but it does not require the
signature of the president
Ways and Means Committee – committee in the House that handles revenue legislation
Multiple referral – a process whereby a bill may be referred to several committees that
simultaneously consider it. the advantages of this process is that all views have a chance to
be heard; the disadvantage is that it takes a lot of time and gives opponents a greater
chance to kill or modify the bill. And if the different committees disagree about the bill, their
members have to come together in a joint meeting. In these cases the advantages of the
committee system are often lost.
Sequential referral – when the Speaker sends a bill to a second committee after the first is
finished acting.
Discharge position – a procedure whereby the House or Senate can get a bill that is
stalled in committee out and onto the floor. In the House it must be signed by 218 people; if
the petition is approved it comes before the House directly. In the Senate a member can
move to discharge a committee of any bill, and if the motion passes, the bill comes before
the Senate. Discharge is rarely tried in the Senate, in part because Senate rules permit
almost any proposal to get to the floor as an amendment to another bill.
Closed rule – sets a strict time limit on debate and forbids the introduction of any
amendments except those offered by sponsoring committees.
Open rule – permits amendments from the floor
Restrictive rule – permits some amendments but not others
Ways the House has of bypassing the Rules Committee – a member can move that
the rules be suspended, which requires a 2/3 vote; a discharge petition can be filed; the
House can use the “Calendar Wednesday” procedure. In theory few such barriers to floor
consideration exist in the Senate.
Rider – a provision added to a piece of legislation that is not germane to the bill’s purpose.
The goal is usually to achieve one of two outcomes: either to get the president to sign an
otherwise objectionable bill by attaching it, as an amendment, to a provision that he wants
to see enacted, or to get the president to veto a bill that he would otherwise sign by
attaching to it a provision that he does not like.
Quorum – the minimum number of members who must be present for business to be
conducted. Only 100 members for the Committee of the Whole.
Quorum call – occurs when someone wishes to delay action on a House bill. It is a calling of
the roll to find out whether the necessary minimum number of members are present. If a
quorum is not present, the House must either adjourn or dispatch the sergeant at arms to
round up the missing members.
Cloture rule – requires that 16 senators sign a petition to move cloture. The motion is
voted on two days after the petition is introduced; to pass, 3/5 of the entire Senate
membership must vote for it. If it each passes, each senator is thereafter limited to one hour
of debate on the bill under consideration. The total debate cannot exceed 100 hours.
Double-tracking – an attempt to keep the Senate going during a filibuster. Other business
can go on while the stalled bill is temporarily set aside. As a result, the number of filibusters
has skyrocketed.
Voice vote – consists of House members shouting “yea” or “nay”
Division vote – involves House members standing and being counted
Teller vote – the members pass between two tellers. This type of vote is recorded. Teller
votes but not roll call votes can be used in the Committee of the Whole
Roll-call vote – consists of people answering “yea” or “nay” to their names. It can be done
at the request on 1/5 of the representatives present in the House.
House-Senate Differences: A Summary
HOUSE
-435 members serve 2-year terms
-House members have only one major committee assignment, thus tend to be policy
specialists
-Speaker’s referral of bills to committee is hard to challenge
-Committees almost always consider legislation first
-Scheduling and rules are controlled by the majority party
-Rules Committee is powerful; controls time of debate, admissibility of amendment
-debate is usually limited to one hour
-nongermane amendments may not be introduced from the floor
SENATE
-100 members serve rotating 6-year terms
-senators have two or more major committee assignments, thus tend to be policy
generalists
-referral decisions are easy to challenge
-committee consideration is easy bypassed
-scheduling and rules are generally agreed to by majority and minority leaders
-Rules Committee is weak; few limits on debate or amendments
-debate is unlimited unless shortened by unanimous consent or by invoking cloture
-nongermane amendments may be introduced
Pork-barrel legislation – bills that give tangible benefits to constituents in the hope of
winning their votes in return. A result of the federalist system
Franking privilege – the ability of members of Congress to send material through the mail
free to keep their constituents informed about the government. Most use it for campaign
literature, thereby helping incumbents
Congressional Accountability Act of 1995 – created the independent Office of
Compliance and an employee grievance procedure to deal with implementation. Mandates
that Congress members too must obey laws such as the Civil Rights Act, the Equal Pay Act,
the Age Discrimination Act, and the Family and Medical Leave Act
Rules on Congressional Ethics
SENATE
-no gifts totaling $100 or more from anyone except a spouse or personal friend
-lobbyists may not pay for gifts, official travel, legal defense funds, or charitable
contributions to groups controlled by senators
-no fees for lectures or writing except that fees of up to $2000 may go to a senator-
designated charity
-outside earned income may not exceed 15% of a senator’s salary
-ex-senators may not try to influence members of Congress for one year after leaving the
Senate
-no senator may receive more than $50000 from the Senate to send out a mailing to
constituents
HOUSE
-no gifts totaling $100 or more from anyone except a spouse or personal friend
-lobbyists may not offer gifts or pay for travel, even if lobbyist is a spouse or personal friend
-house members may travel at the expense of others if travel is for officially connected
meetings
-no honoraria for House members
-ex-House members may not lobby Congress for one year after leaving office
How Congress Raises its Pay
-voting for a tax deduction for expenses incurred as a result of living in Washington
-creating a citizens commission that could recommend pay increase that would take effect
automatically provided Congress did not vote against it
-linking increases in pay to decreases in honoraria