LITMIR.BIZ

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serious party issues the House of Representatives is nearly as much a party body as the House of Commons. A member voting against his party on such an issue is more certain to forfeit his party reputation and his seat than is an English member. But for the purpose of ordinary questions, of issues not involving party fortunes, a representative is less bound by party ties than an English member, because he has neither leaders to guide him by their speeches nor whips by their private instructions.²³ The apparent gain is that a wider field is left for independent judgment on nonpartisan questions. The real loss is that legislation becomes weak and inconsistent. This conclusion is not encouraging to those who expect us to get rid of party in our legislatures. A deliberative assembly is, after all, only a crowd of men; and the more intelligent a crowd is, so much the more numerous are its volitions; so much greater the difficulty of agreement. Like other crowds, a legislature must be led and ruled. Its merit lies not in the independence of its members, but in the reflex action of its opinion upon the leaders, in its willingness to defer to them in minor matters, reserving disobedience for the issues in which some great principle overrides both the obligation of deference to established authority and the respect due to special knowledge.

      The above remarks answer the second question also. The spirit of party may seem to be weaker in Congress than in the people at large. But this is only because the questions which the people decide at the polls are always questions of choice between candidates for office. These are definite questions, questions eminently of a party character, because candidates represent in the America of today not principles but parties. When a vote upon persons occurs in Congress, Congress gives a strict party vote. Were the people to vote at the polls on matters not explicitly comprised within a party platform (as they do now in states which have adopted the initiative and referendum), there would be much greater uncertainty than Congress displays. The habit of joint action which makes the life of a party is equally intense in every part of the American system. But in England the existence of a ministry and opposition in Parliament sweeps within the circle of party action many topics which in America are left outside, and therefore Congress seems, but is not, less permeated than Parliament by party spirit.

CHAPTER 20

       The Relations of Congress to the President ¹

      So far as they are legislative bodies, the House and the Senate have similar powers and stand in the same relation to the executive.² We may therefore discuss them together, or rather the reader may assume that whatever is said of the House as a legislature is also true of the Senate.³

      Although the Constitution forbids any federal official to be chosen a member of either the House or the Senate, there is nothing in it to prevent officials from speaking there; as indeed there is nothing to prevent either house from assigning places and the right to speak to anyone whom it chooses. In the early days Washington came down and delivered his opening speech. Occasionally he remained in the Senate during a debate, and even expressed his opinion there. When Hamilton, the first secretary of the treasury, prepared his famous report on the national finances, he asked the House whether they would hear him speak it, or would receive it in writing. They chose the latter course, and the precedent then set has been followed by subsequent ministers,⁴ while that set in 1801 by President Jefferson when he transmitted his message in writing instead of delivering a speech, has been similarly respected by all his successors. Thus neither house now hears a member of the executive; and when a minister appears before a committee, he appears primarily as a witness to answer questions, rather than to state and argue his own case. There is therefore little direct intercourse between Congress and the administration, and no sense of interdependence and community of action such as exists in other parliamentary countries.⁵ Be it remembered also that a minister may never have sat in Congress, and may therefore be ignorant of its temper and habits. Six members of Mr. Cleveland’s cabinet, in 1888, and seven of Mr. Taft’s in 1909, had never had a seat in either house. The president himself, although he has been voted into office by his party, is not necessarily its leader, nor even one among its most prominent leaders. Hence he does not sway the councils and guide the policy of those members of Congress who belong to his own side. No duty lies on Congress to take up a subject to which he has called attention as needing legislation; and, in fact, the suggestions which he makes, year after year, are usually neglected, even when his party has a majority in both houses, or when the subject lies outside party lines. Members have sometimes complained of his submitting draft bills, although there are plenty of precedents for his doing so.

      The president and his cabinet have no recognized spokesman in either house. A particular senator or representative may be in confidential communication with them, and be the instrument through whom they seek to act; but he would probably disavow rather than claim the position of an exponent of ministerial wishes. The president can of course influence members of Congress through patronage. He may give places to them or their friends; he may approve or veto bills in which they are interested; his ministers may allot lucrative contracts to their nominees. This power is considerable, but covert, for the knowledge that it was being used might damage the member in public estimation and expose the executive to imputations. The consequence of cutting off open relations has been to encourage secret influence, which may of course be used for legitimate purposes, but which, being exerted in darkness, is seldom above suspicion. When the president or a minister is attacked in Congress, it is not the duty of anyone there to justify his conduct. The accused official may send a written defence or may induce a member to state his case; but this method lacks the advantages of the European parliamentary system, under which the person assailed repels in debate the various charges, showing himself not afraid to answer fresh questions and grapple with new points. Thus by its exclusion from Congress the executive is deprived of the power of leading and guiding the legislature and of justifying in debate its administrative acts.

      Next as to the power of Congress over the executive. Either house of Congress, or both houses jointly, can pass resolutions calling on the president or his ministers to take certain steps, or censuring steps they have already taken. The president need not obey such resolutions, need not even notice them. They do not shorten his term or limit his discretion.⁶ If the resolution be one censuring the act of a minister, the president does not escape responsibility by throwing over the minister, because the law makes him, and not his servant or adviser, responsible.

      Either house of Congress can direct a committee to summon and examine a minister, who, though he may legally refuse to attend, very rarely refuses. The committee, when it has got him, can do nothing more than question him. He may evade their questions, may put them off the scent by dexterous concealments. He may with impunity tell them that he means to take his own course. To his own master, the president, he standeth or falleth.

      Congress may refuse to the president the legislation he requests, and thus, by mortifying and embarrassing him, may seek to compel his compliance with its wishes. It is only a timid president, or a president greatly bent on accomplishing some end for which legislation is needed, who will be moved by such tactics.

      Congress can pass bills requiring the president or any minister to do or abstain from doing certain acts of a kind hitherto left to his free will and judgment, may, in fact, endeavour to tie down the officials by prescribing certain conduct for them in great detail. The president will presumably veto such bills, as contrary to sound administrative policy. If, however, he signs them, or if Congress passes them over his veto, the further question may arise whether they are within the constitutional powers of Congress, or are invalid as unduly trenching on the discretion which the Constitution leaves to the executive chief magistrate. If he (or a minister), alleging them to be unconstitutional, disobeys them, the only means of deciding whether he is right is by getting the point before the Supreme Court as an issue of law in some legal proceeding. This cannot always be done. If it is done, and the court decide against the president, then if he still refuses to obey, nothing remains but to impeach him.

      Impeachment, of which an account has already been given, is the heaviest piece of artillery in the congressional arsenal, but because it is so heavy it is unfit for ordinary use. It is like a hundred-ton gun which needs complex machinery to bring it into

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