Tuesday, April 5, 2016

Constitution Series Part 4: Article I, Sections 4 and 5

With the composition and election procedures of the House and the Senate established, let's get into figuring out what, exactly, these people are supposed to be spending their time doing!


Section 4
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
Originally, states had a lot more control over when they would hold elections. Basically, so long as elections were held every two years it didn't really matter when during the year those elections happened.

However, by 1792 the window for elections was narrowed down to the 34 days prior to the first Wednesday of December, which was apparently when the presidential Electors would meet. However, even that window of time was determined to be problematic, since some states would vote sooner than others, and the success of a candidate might influence the decisions of people voting later. This was more of a concern for the presidential election than congressional elections, but they happened at the same time, so one affected the other.

So, in 1845 Congress decided on a set Election Day: the first Tuesday after the first Monday in November. Agriculture was huge at the time, so the day was determined with farmers in mind: November was good, since it was post-harvest and pre-winter storms. Sunday was the Sabbath, so that was out of the question, and Wednesday was Market Day. So, they settled on a Tuesday, and it's been the case every since.

Congress indeed could not change the place in which senators were chosen (state legislatures); that required an amendment to the Constitution, which we'll maybe get to some day.
The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.
Congress still must meet once per year, but they've since moved the date to January 4, which makes a bit more sense. A January session means that new members of Congress can go right into their first session shortly after they're elected, rather than having the session just before they take office. Oddly, they changed this with an amendment to the Constitution, even though it sounds like they could have simply passed a law to change the date. Amending the Constitution is a huge hassle and seems unnecessary. The 20th Amendment has lots of other parts to it to, though, so they didn't actually go through the ratification process just to move the date of their session to a more convenient time.

Section 5
Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.
Up to now, the Constitution has seemed fairly straightforward and readable. Suddenly we get to this paragraph, which feels like it's running laps around the English language. It's jargon, but the concept is pretty straightforward.

The right to "be the Judge of the Elections, Returns, and Qualifications of its own Members" means simply that it's up to the House and Senate to regulate their elections and ensure that their members qualify for their positions. For instance, last time I noted several senators who got their positions before they technically qualified. If their ages had been brought into question, it would have been up to the Senate to discharge and penalize them had they been discovered. This also means that each House has jurisdiction over things like election fraud.

A "Quorum to do Business" simply means that it requires a simple majority vote to pass legislation. So long as a majority of members are there to pass legislation, that majority is a "Quorum," and the passed legislation is the "Business" that is done. So, if there are 100 senators and 51 are present and are all in agreement, the other 49 can feel free to take the day off. It rarely goes that way in practice, but that's the idea in theory.

Interestingly, the idea of passing laws with a simple majority was a matter of debate during the Constitutional convention. The Articles of Confederation required a two-thirds majority to pass anything, which basically meant that almost nothing was passed. Everyone at the Constitutional Convention agreed that a two-thirds majority was too high, but some even thought a simple majority was asking too much. However, requiring less than a majority to be in favor of legislation doesn't make much sense unless you're expecting most legislators to be absent most of the time. The logistics of a less-than-majority quorum kind of boggles the mind. Apparently the convention as a whole thought so too, so the simple majority concept remained.

Finally, each House can compel the attendance of absent members. This was important, since this means a minority faction can't force a vote through and prevent the passing of legislation by obstructing the presence of a majority. At least, that was the concern during the convention.
Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.
Who needs impeachment if you can just gang up on members you don't like and expel them? In fact, Congressmen aren't subject to impeachment, as this clause supersedes impeachment proceedings. I don't think the two-thirds expulsion clause has been used very often, though. Mostly it was used around the time of the Civil War, when several Congressmen were expelled for supporting the rebellion.

This whole paragraph is important, though, since it hammers home the fact that Congress was intended to be the most powerful branch of the government. Note that it's been previously established that Congress has the power to expel people from other branches of government through impeachment, and now we see that they are also the only ones with the power to expel themselves.
Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.
Nowadays we have CSPAN to keep an eye on Congress, but from the beginning the proceedings of our legislature was being recorded for posterity. In fact, it's this provision in the Constitution that allows CSPAN to operate its cameras in those rooms, and before CSPAN it allowed journalists to sit in on sessions to record the proceedings.

The actual, Constitutionally-mandated journals apparently aren't worth much, as they only record the names of bills and who voted for what. We have little official record of the debates of early sessions of Congress, nor the text of the bills being voted on or any other supporting documents. What remarks we have from that time comes from independent works.

That changed with the introduction of the Congressional Record in 1873, which records Congressional debates practically verbatim, and can include documents and remarks that were not said aloud during the session.

The only parts not recorded for public review are closed sessions, in which the doors are closed, the cameras are turned off, the public is kicked out, and everyone in the room is sworn to secrecy. There was some objection to including this clause in the Constitution, though. Patrick Henry, the founding father who once said "Give me liberty, or give me death!" argued against closed sessions, saying, "The liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them."

That said, closed sessions happen pretty rarely, and usually only during impeachment proceedings and when discussing matters of national security. All things considered, our legislature is impressively transparent, partially because most of our Congressmen are keeping an eye on each other pretty effectively. They're actually pretty good at self-regulating, in that way.
Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.
Basically, each House can take the weekend off without asking each other for permission, but generally as long as one House is in session so is the other. Neither may break for long while the other is working.

In theory, one House can force the other to continue being in session against their will. However, this has never happened, and if it did the President can actually force Congress to adjourn (as we'll see in Article II).

Congress also needs mutual agreement to meet someplace other than the Capitol. This hasn't happened much, but they did need to evacuate Washington D.C. during the War of 1812, for instance.

Continue to Part 4: Sections 6 and 7

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