1. Legislative Politics
POLS 4211 Chap. 12, 13, 14

2. Congress and the Courts (12)

3. Constitution Article III
• Section. 1.
• The judicial Power of the United States shall
be vested in one supreme Court, and in such
inferior Courts as the Congress may from time
to time ordain and establish. The Judges, both
of the supreme and inferior Courts, shall hold
their Offices during good Behaviour, and shall,
at stated Times, receive for their Services a
Compensation, which shall not be diminished
during their Continuance in Office.

4. Article III, Section 2
• The judicial Power shall extend to all Cases, in Law
and Equity, arising under this Constitution, the Laws
of the United States, and Treaties made, or which shall
be made, under their Authority;--to all Cases affecting
Ambassadors, other public Ministers and Consuls;--to
all Cases of admiralty and maritime Jurisdiction;--to
Controversies to which the United States shall be a
Party;--to Controversies between two or more
States;-- between a State and Citizens of another
State,--between Citizens of different States,--between
Citizens of the same State claiming Lands under
Grants of different States, and between a State, or the
Citizens thereof, and foreign States, Citizens or
Subjects.
• Continued next slide

5. Article III, Section 2, cont.
• In all Cases affecting Ambassadors, other
public Ministers and Consuls, and those in
which a State shall be Party, the supreme Court
shall have original Jurisdiction. In all the other
Cases before mentioned, the supreme Court
shall have appellate Jurisdiction, both as to
Law and Fact, with such Exceptions, and under
such Regulations as the Congress shall make.
• Continued next slide

6. Article III, Section 2, cont.
• The Trial of all Crimes, except in Cases of
Impeachment, shall be by Jury; and such Trial
shall be held in the State where the said Crimes
shall have been committed; but when not
committed within any State, the Trial shall be
at such Place or Places as the Congress may by
Law have directed.
• Section 3 next slide

7. Article III, Section 3
• Treason against the United States, shall consist only in
levying War against them, or in adhering to their
Enemies, giving them Aid and Comfort. No Person
shall be convicted of Treason unless on the Testimony
of two Witnesses to the same overt Act, or on
Confession in open Court.
• The Congress shall have Power to declare the
Punishment of Treason, but no Attainder of Treason
shall work Corruption of Blood, or Forfeiture except
during the Life of the Person attainted.

8. The Legal System
• Courts decide cases by hearing the facts on
both sides of a dispute and applying the
relevant law or principle to the facts.
• Courts have authority over the citizens and
the government.

9. The Legal System
• Courts are obliged to maintain neutrality
and impartiality in deciding disputes.
• The essence of the “rule of law” is that
government officials are judged by the same
laws as the citizenry.

10. The Supreme Court
• This is America’s highest court. Article III
vests the “judicial power of the United
States” in the Supreme Court.
• The Court is made up of a chief justice
(Supreme Court justice who presides over
the Court’s public session) and eight
associate justices.

11. The Supreme Court
• Congress has the authority to change the
size of the Supreme Court.
• The Supreme Court is the only federal court
established by the Constitution.
• The lower federal courts are created by
statute and can be restructured or,
presumably, even abolished by the
Congress.

12. How Judges Are Appointed
• Federal judges are appointed by the president and
confirmed by the Senate.
• Nominees are generally selected from among the
more politically active members of the legal
profession.
• Often, before the president makes a formal
nomination, senatorial courtesy (the practice
whereby the president, before formally nominating
a person for a federal judgeship, seeks an
indication that senators from the candidate’s own
state support the nomination) is observed.

13. How Judges Are Appointed
• There are no formal qualifications for
service as a federal judge.
• In general, presidents appoint judges with
legal experience and good character, who
have ideological and partisan views similar
to the president’s.

14. How Judges Are Appointed
• Once the president formally nominates
individuals, the nominee must be considered by
the Senate Judiciary Committee and confirmed by
a majority vote in the full Senate.
• In recent years, Supreme Court nominations have
involved intense partisan struggles.
• Typically, after the presidential nomination,
interest groups opposing the nomination mobilize
the media, public, and Senate against it.

15. The Power of the Supreme Court:
Judicial Review
• One of the most important powers of the
Supreme Court is judicial review (the power
of the court to examine and, if necessary,
invalidate or declare unconstitutional
actions undertaken by the legislative and
executive branches).

16. The Power of the Supreme Court:
Judicial Review
• The phrase is also used to describe the
scrutiny that appellate courts give to the
actions of trial courts, an inaccurate use.
• Appropriately, a higher court’s examination
of a lower court’s decision might be called
“appellate review,” but it is not judicial
review.

17. Judicial Review of Acts of
Congress
• The Constitution does not give the Supreme
Court power of judicial review.
• The Supreme Court asserted this power
under Chief Justice John Marshall in
Marbury v. Madison.
• The Court has struck down only 160
congressional acts. Judicial power has come
to be accepted as natural, if not intended.

18. Judicial Review of State Actions
• The Constitution does not explicitly grant the
Court this power.
• However, the logic of the supremacy clause (part
of Article VI of the Constitution, which states that
laws passed by the national government and all
treaties are the supreme law of the land and
superior to all laws adopted by any state or any
subdivision) is very strong.

19. Judicial Review of State Actions
• Also, the Judiciary Act of 1789 conferred
upon the Supreme Court the power to
reverse state laws and constitutions
whenever they conflict with the U.S.
Constitution.

20. Judicial Review of Federal
Agency Actions
• Congress has delegated to the executive
branch regulatory power to enable it to
administer congressional legislation.
• Delegation of power has led to court
decisions about the scope of delegation and
consistency with congressional intentions.

21. Judicial Review of Federal
Agency Actions
• Recently, the Court has found that so long
as federal agencies develop rules based on
“reasonable interpretation” of congressional
statutes, the judiciary would accept
executive decisions.

22. Judicial Review and Presidential
Power
• The Court also reviews presidential actions when
these are challenged by individuals, groups, or
members of Congress.
• The federal bench has, more often than not, upheld
assertions of presidential power in foreign policy,
war, and emergency power, as well as
administrative authority.
• Recent cases related to the war on terror, however,
have placed some limits on presidential authority.

23. Judicial Review and Lawmaking
• Much court work involves statute application.
However, over time, judges have developed a
body of principles called “common law.”
• The written opinion of an appellate court is
halfway between common law and statutory law.
• It is made by a judge and draws heavily on the
precedents of previous cases.

24. Judicial Review and Lawmaking
• Much civil law has been constructed by
judicial messages to other judges, which
may eventually be codified into legislative
enactments.
• The courts cannot directly change the
behavior of citizens or the government.
• However, they can make it easier for
mistreated persons to gain redress.

25. Judicial Review and Lawmaking
• They enforce writs of habeas corpus (a
court order demanding that an individual in
custody be brought into court and shown
the cause of detention—meaning one
cannot be deprived of liberty without a
trial).
• Habeas corpus is guaranteed by the
Constitution and can be suspended only in
cases of rebellion or invasion.

26. Judicial Review and Lawmaking
• In redressing wrong, the federal courts can also
call for a radical change in legal principle.
• For example, one can see changes in laws about
race relations in Brown v. Board of Education,
ending school segregation, or the doctrine of the
separation of church and state in Engel v. Vitale,
which ended school prayer.

27. Judicial Review and Lawmaking
• Also, in criminal cases the Supreme Court
revolutionized the legal system, developing the
Miranda rule: the requirement that a person under
arrest must be informed prior to police
interrogation of their right to remain silent, the
right to be informed of their accusation, and the
right to have counsel present during questioning.
• These rights were established by the Supreme
Court in Miranda v. Arizona.

28. Explaining Supreme Court
Decisions
• The Supreme Court explains its decisions in
terms of law and precedent. Court justices
may make a decision based on judicial
philosophies including:

29. Explaining Supreme Court
Decisions
• Judicial Restraint
– Adherents of this judicial philosophy refuse to
go beyond the clear words of the Constitution
in interpreting its meaning.

30. Explaining Supreme Court
Decisions
• Judicial Activism
– Adherents of this judicial philosophy claim the
court should go beyond the words of the
Constitution or a statute to consider the broader
societal implications of its decisions.

31. Explaining Supreme Court
Decisions
• Political Ideology
– The second component of judicial philosophy is
political ideology.
– The liberal or conservative attitudes of the
justices play an important role in their
decisions.

32. Explaining Supreme Court
Decisions
• Judicial Power and Politics
– The federal courts’ power and roles have been
transformed in the late twentieth century.
– Understanding how this transformation came
about is key to understanding the contemporary
role of courts in America.

33. Traditional Limitations on the
Federal Courts
• For much of American history, the power of
the federal courts was subject to a number
of limitations.

34. Traditional Limitations on the
Federal Courts
• To begin with, courts cannot exercise power
on their own initiative.
• Judges must wait until a case is brought to
them.
• Courts were constrained by judicial rules of
standing that limited access to the bench.
• Claimants who simply disagreed with the
government did not have access.

35. Traditional Limitations on the
Federal Courts
• Access was limited to individuals who
could show that they were particularly
affected by the government’s behavior in
some area.

36. Traditional Limitations on the
Federal Courts
• Courts were limited in the character of
relief they provided.
• Traditionally, courts offered assistance only
to individuals, rather than classes of
individuals.

37. Traditional Limitations on the
Federal Courts
• Courts lacked enforcement powers.
• If the executive was unwilling to assist,
judicial acts would be unheeded.

38. Traditional Limitations on the
Federal Courts
• Federal judges are appointed by the
president with the consent of the Senate.
• As a result, the president and Congress have
power to shape the judiciary and its
decisions.
• Congress has the power to change the
Court’s size and jurisdiction.

39. Two Judicial Revolutions
• Since WWII, the role of the federal
judiciary has been strengthened and
expanded.
• The Supreme Court has headed a series of
changes in the role of American
government and society.

40. Two Judicial Revolutions
• They also brought about a second
revolution, establishing a series of judicial
procedures that expanded the power of the
courts in America and countered some of
its traditional limitations.
– They made it easier for groups to bring
action in the courts against adverse
governmental action.

41. Two Judicial Revolutions
– They also allowed themselves to act on behalf
of classes of persons in “class action suits”
(legal actions by which a group or class of
individuals with a common interest can file a
suit on behalf of everyone who shares that
interest).

42. Two Judicial Revolutions
– The Court employed so-called structural
remedies, in effect retaining jurisdiction of
cases until the court’s order has been
implemented to its satisfaction.

43. Thinking Critically about the Judiciary,
Liberty, and Democracy
• In the original conception of the framers, the
judiciary was to be the institution that would
protect individual liberty from the government.
• Today, Americans of all political persuasions
seem to view the courts as useful instruments
through which to pursue their goals, rather than
simply protectors of individual rights.

44. Thinking Critically about the Judiciary,
Liberty, and Democracy
• Courts are used as instruments of social
policy.
• If courts are treated as simply one more set
of policy-making institutions, then who is
left to protect the liberty of individuals?

45. Terms
• Original Jurisdiction
– The authority to initially consider a case. Distinguished from appellate
jurisdiction, which is the authority to hear appeals from a lower court’s decision.
• Judicial review
– The power of the courts to review and, if necessary, declare actions of the
legislative and executive branches invalid or unconstitutional.
• Judicial restraint
– Judicial philosophy whose adherents refuse to go beyond the clear words of the
Constitution in interpreting its meaning.
• Judicial activism
– Judicial philosophy that posits that the Court should go beyond the words of the
Constitution or a statute to consider the broader societal implications of its
decisions.
• Senatorial courtesy
– The practice whereby the president, before formally nominating a person for a
federal judgeship, seeks the indication that senators from the candidaate’s own
state support the nomination.

46. Congress and Interest Groups (13)
• Previously individuals joined voluntary
organizations to achieve goals of value to their
members and to influence the direction of
society and government.
• More recently, organization and money are
crucial predictors of how successfully an
interest group will influence policy.
– Questions? (next slide)

47. Questions for consideration
• Will digital fund-raising, organizing, and communicating
strengthen the clout and efficacy of interest groups?
• Will expanding Web-based activism change the face of who
participates in interest groups?
• Will digital group activism have unintended negative
consequences?
• How can Congress create an more level playing field for
individuals to get their message to the government?

48. Right to petition the Government
• 1st Amendment:
• Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof, or abridging the
freedom of speech, or of the press, or the right of the people
peaceably to assemble, and to petition the Government for a
redress of grievances.

49. Interest Group Methods
• Direct Lobbying
• Social Lobbying
• Coalition Lobbying
• Grassroots Lobbying
• Electronic Lobbying

50. I.G. Methods
• Direct lobbying
– Success is based on trust. Is the lobbyist credible and knowledgeable?
• www.opensecrets.org (tracks $ and lobbyist)
– Member to member lobbying
• “Each member is part of a network of reciprocity.”
• Lifetime membership
• Revolving door
– Officials who move from government employment to private sector lobbying
– Now limited to after two years
• Social lobbying
– The interacting among lobbyist and congress members in a casual setting.
– Committee on Standards of Official Conduct
• Travel with registered lobbyists is banned
• No paying for meals
– Reception exception or toothpick rule
• Campaign events are unrestricted
• Speaking fees (honoraria) may be given to specific charity or non-profit.

51. Terms
• Lobbyist
– Individual who communicates directly with policy makers on an interest
group’s behalf.
• Interest Group
– Organizations hat seek to achieve some of their goals by influencing
government decision making.
• Elite theory
– A theory that holds that a group of wealthy, educated individuals wields
more political power.
• Pluralist theory
– A theory that holds that policy making is a competition among diverse
interest groups that ensure the representation of individual interests.
• Free Rider
– The phenomenon of someone deriving benefit from others’ actions.

52. Terms
• Electioneering
– Working to influence the election of candidates who support the
organization’s issues.
• Umbrella organizations
– Interest groups that represent collective groups of industries or
corporations.
• Climate control
– The practice of using public outreach to build favorable public opinion for
an organization.
• Political Action Committee (PAC)
– A group that raises and spends money to influence the outcome of an
election.
• Social capital
– The ways in which our lives are improved in many ways by social
connections.

53. Terms
• Astroturf
– Slang for an outpouring of “grassroots” sentiment that an interest group
manufactures.
• Grasstops
– An interest group tactic of enlisting the support of people with strong
local influence or a personal connection to lawmakers.
• Air war
– An interest group effort to sway public opinion through broadcast
advertisements.
• Section 527 Group
– A group that runs issue advocacy ads and voter mobilization efforts, often
as a way to get around federal campaign finance restrictions.
• Foundation
– A nonprofit organization whose primary goal is to seek benefits for the
broader public, not just its own members.

54. Congress, Budgets, and Domestic Policymaking (14)
• Public Policy – a law, rule, statute, or edict that
expresses the government’s goals and provides
for rewards and punishments to promote their
attainment

55. David Easton…
• Defined a political system as “the authoritative
allocation of values for society as a whole.”
(www.faculty.uci.edu)
• So…public policy is the authoritative
allocation of something of value for the people
as a whole.

56. Policymaking Stages
1. Agenda Setting
2. Formulating Policy or Incubation
3. Adopting Policy
4. Implementation
5. Feedback or Feedforward

57. Agenda Setting
• Best selling book:
– John W. Kingdon, Agendas, Alternatives, and
Public Policies
• Agenda (national) “the list of subjects to which
government officials and those around them are paying
serious attention.”
– From where do problems come?
• Next slide

58. Agenda Setting - 2
• Policy may come from?
– Crisis
– Gradual accumulation of knowledge about a
problem such as Global Warming
– Accumulation of past problems such as crumbling
infrastructure or oil dependence
• Creeping Crisis or “Slow Leak”
– Difficult to handle since legislative process tends to be Reactive
instead of Proactive

59. Formulating Policy
• Incubation:
– Keeping a proposal alive while it picks up support,
or waits for a better climate or while a consensus
begins to form that the problem to which it is
addressed exists.
– The difficulty, according to Thomas s. Foley D-
Wash. (Speaker, 1989-1995) issues have become
far more perplexing since he came to Congress in
1965.

60. Adopting Policy
• John W. Kingdon’s “policy window”
– An opportunity presented by circumstances and
attitudes to enact a policy into law
• Legitimation is the process through which policies come
to be viewed by the public as right or proper.
– Review text material in light of the Health Care Reform
– “…the policies themselves must appear to have been properly
considered and enacted. A nation whose policies lack legitimacy
is in deep trouble.” (p. 420)
• Symbolic Policy
– No specific implementation such as the beginning of GA’s seat
belt law
• Hortatory Policy

61. Implementation
• Chief Executive function
• Legislation is vague
– Left up to bureaucrats to interpret
– Correct mis-interpretation via the Oversight
process

62. Feedback
• Feed-forward
– How are we doing?
– The process may be considered circular

63. Domestic Policy Typology
1. Distributive
2. Redistributive
3. Regulatory
• T. Lowi is often quoted from his study of the
types of policies of national government.
– He did not include Foreign Policy or Self-
Regulatory Policy.
– Heuristic method of trying to understand how
policy develops.

64. Distributive Policy
• Distributive: broad allocation of
benefits/services to population segments. They
are synonymous with govt subsidies or
patronage, land & resource policies; river &
harbor projects & “Pork Barrel” projects:
– e.g. TVA, Highway System, Savannah River
• Lowi: they “are virtually not policies at all but
are highly individualized decisions that only by
accumulation can be called a policy.” (over
time, in aggregate, these rules indicate a general
policy direction)

65. Distributive Policy - 2
• May be called
– Pork
– Member Projects
– Congressional Initiatives
– Congressional Directed Spending
– Earmarks
• Defined as a specific project placed as a rider to a Bill that
will benefit a specific legislator’s district
• Most recent example was the “Bridge To Nowhere”

66. Distributive Policy - 3
• Earmarks
– They increased dramatically over the last 20 years
– Recent criticism led to an overhaul of the earmarking
process
• More transparent and accountable
– Congressmember(s) name requesting Earmark must be disclosed
– Must disclose name and location of intended recipient
– Must disclose purpose of earmark
– Certify that Congressmember nor spouse has financial interesting
in earmark.

67. Redistributive
• Reallocation of resources from one population
segment to another.
– Graduated Income Tax
– Medicare/Medicaid
– Equality of Results/condition
– Lottery

68. Regulatory
• Restrictions on private action/business. Specific
& individual in their impact though not quite to
the extent as Distributive policies.
– Zero-Sum Game
– George Stigler’s Economic regulation: is sought by
the affected industry and operated for its benefit.
(1971). Maybe more similar to “self-regulatory”

69. Budgeting
“The budget is the life blood of the government….If we
substitute
the words ‘what the government ought to do’ for the words
‘ought to be in the budget,’ the centrality of the budget to
governance itself becomes clearer.”
-Aaron Wildavsky

70. Budgeting
• Budgeting is the process of creating a plan for
expending funds.
– In any enterprise or government, one must anticipate
revenues.
– Budgets are working documents in that they are not
absolute and may be changed to more properly
reflect actual expenditures.
– Some governments require periodic budget
adjustments and independent audits

71. Budgeting - 2
• Budgets are only as complex as:
– Amount of funds expended
– # of individuals involved
• # of different levels of administration or hierarchical
development
– Development of formal rules
• Legislative accountability and transparency = delays
• GAGSA (Yellow book), FASB, GAAP
– CGAP, Comptroller, CPA

72. Backdoor Spending Techniques
• A sidestep of the two-step authorization-
appropriation process. It Mandates/Directs
1. Contract authority
• Permits agencies to enter into contracts which binds govt
to pay for the services.
1. Borrowing authority
• Allows agencies to spend money they borrowed.
1. Entitlements
• Fastest growing! Grants benefits to specific categories.

73. Entitlements Challenge
• Social Security
– Trust fund surpluses are expected to drop sharply
in 2009 and be nearly flat in 2010
– Program will pay out more in benefits than it
receives in revenues by 2016 (year earlier than
estimated last year)
– Program will be insolvent by 2037 Enrollees
would receive about three-fourths of their promised
benefits through 2083

74. National Budget Outline
• Fiscal Year: Oct. 1 – Sept. 30
• Spring Review: Agency submits request to
OMB (March = heads up)
• Fall Review: OMB submits budget to President
(numerous agency meetings (CEA, Treasury,
individual agencies)
• DEADLINE: “Economic Report of the
President” due to printer in January
– next page
74

75. National Budget Outline, cont.
• First Budget Resolution: Generally May;
Congressional proposal (CBO advises)
• Second Budget Resolution: Sept. deadline
• Continuing Resolution: temporary
appropriations bill
• GAO fiscal year audit
75

76. Fighting Budget Deficits
• Rising expenditures for entitlement programs, nat’l defense, and
declining revenues is contributory to the rapidly increased nat’l debt
between the late 70s & 80s.
• The GRH Act of 1985’s sequestration process did not work, Bush’s
“no new taxes” was not adhered to, and Clinton could not reduce the
deficit by one-half like he promised. However, some of the Clinton
years saw budget surpluses due to the luck of a strong economy.
• Economic recession and international conflict are indicative of
diminishing surpluses and red-lining.
76

77. Biennial Budgeting
• “Biennial budgeting could also improve the
efficiency of agencies where preparing detailed
budget documents has become a year-round
process,” Isenberg adds. “If less time were
spent preparing budgets, more resources could
be shifted to long-term management and
oversight.”
– See Concord Coalition link here:
• http://www.concordcoalition.org/publications/budget-
reports/updates/2010/1019/two-year-budget-cycle-could-
save-time-improve-efficien

78. See Concord PPT’sA
http://www.concordcoalition.org/files/uploaded_for_no
des/WebSiteTalk092010.pdf
Short and Long Term Budget Trends

79. Terms (Also review Box 14-2)
• Public Good
– A good or service that is provided by the government because it either is
not supplied by the market or is not supplied in sufficient quantities.
• Phonemarking
– Informal Congressional practice of telephoning executive branch officials
urging them to continue funding old earmarked projects.
• Unfunded Mandate
– National regulation requiring lower level govts to provide a service for
which they are not reimbursed.
• Entitlement Program
– A legal obligation of the federal govt to provide payments to individuals,
or groups f individuals, according to eligibility criteria or benefit rules.
• Medicare
– A form of national health insurance for the elderly and the desabled.

80. Terms
• Medicaid
– A federally and state financed, state-operated program providing medical
services to low-income people.
• PAYGO
– This rule required that all tax cuts, new entitlement programs, and
expansions of existing entitlement programs be budget-neutral-offset by
additional taxes or by cuts in existing entitlement programs.
• Tax
– Any compulsory payment to government without an expectation of
personal benefit.
• Sequestration
– The automatic, across-the-board spending cuts if Congress fails to reach
deficit reduction targets.
• Fiscal Year
– Governments budget year of which the national government fiscal year is
from October 1 through September 30.

81. Terms
• Birth Dearth
– When fewer workers are paying to support more and more
retiree benefits.