Instructor’s Manual

to accompany

Fiorina • Peterson

The New American Democracy

Third Edition

Tom Caiazzo
Collin County Community College

New York Boston San Francisco

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Instructor’s Manual to accompany Fiorina/Peterson, The New American Democracy, Third Edition
Copyright ©2003 Pearson Education

All rights reserved. Printed in the United States of America. Instructors may reproduce portions of this book for
classroom use only. All other reproductions are strictly prohibited without prior permission of the publisher, except
in the case of brief quotations embodied in critical articles and reviews.

ISBN: 0-321-10861-2

1 2 3 4 5 6 7 8 9 10-DPC–05 04 03 02
 TABLE OF CONTENTS
CHAPTER 1 THE NEW AMERICAN DEMOCRACY 1

CHAPTER 2 ESTABLISHING A CONSTITUTIONAL

DEMOCRACY 15

CHAPTER 3 FEDERALISM: DIVISION OF POWER AMONG

NATIONAL, STATEAND LOCAL GOVERNMENT 33

CHAPTER 4 AMERICA: UNITY AMIDST DIVERSITY 47

CHAPTER 5 PUBLIC OPINION 57

CHAPTER 6 INDIVIDUAL PARTICIPATION 69

CHAPTER 7 INTEREST GROUP PARTICIPATION IN AMERICAN

DEMOCRACY 81

CHAPTER 8 POLITICAL PARTIES 95

CHAPTER 9 THE MEDIA 111

CHAPTER 10 ELECTING THE PRESIDENT 129

CHAPTER 11 CHOOSING THE CONGRESS 145

CHAPTER 12 THE CONGRESS AND ITS WORK 155

CHAPTER 13 THE PRESIDENCY: POWERS AND PRACTICE 171

CHAPTER 14 THE BUREAUCRACY 187

CHAPTER 15 THE COURTS 203

CHAPTER 16 CIVIL LIBERTIES 219

CHAPTER 17 CIVIL RIGHTS 235

CHAPTER 18 DOMESTIC POLICY 251

CHAPTER 19 ECONOMIC POLICY 267

CHAPTER 20 FOREIGN AND DEFENSE POLICY 281

CHAPTER ONE

The New American Democracy

OVERVIEW

The United States has more elections than any other government. Thus, the United States
leans more towards the popular form of representative democracy rather than the
responsible form.

With so many elections at different times, it would seem that there is a continuous
permanent campaign going on in America. The mass media and polls contribute to this
trend. Still, most Americans don't vote most of the time and even fewer contribute to
campaigns or work in party organizations.

When the majority of voters are united and determined, they can usually overcome the
advantages of the few that regularly participate in politics. Any discussion of reforming
American government should take into account that the trend toward the popular form of
representative democracy may be part of the problem instead of the solution.

LEARNING OBJECTIVES

1. Discuss how and why Bill Clinton was elected in 1992.

Also, explain why he accepted the GOP-sponsored welfare reform bill in 1996.

2. Explain why elections are the key ingredient in American politics.

3. Discuss the various types of elections in America and why turnout varies among them.

4. Explain Aristotle's classification of governments, representative democracy, and the

popular and responsible models.

5. Elaborate on the effects of primary and poll proliferation on the American political
system.

6. Explain the significance of minority and majority relationships to elections in

America.

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7. Discuss the benefits of an electoral democracy.

8. Compare and contrast voting and electoral patterns in the United States with other
democracies.

9. Review the pros and cons of constitutional reform as a democratic dilemma.

KEY TERMS

aristocracy oligarchy
constituency popular democracy
democracy permanent campaign
direct democracy popular mandate
electoral incentive primary election
general election recall election
government referendum
initiative representative democracy
local election responsible democracy
national election single-issue voter
non partisan election state election

OUTLINE

I. Elections in America

The United States has more elections that select more officials for public offices than
any other country on earth.

Elections for national officials are held every two years, with all 435 members of the
U.S. House and one-third of the U.S. Senate up for election. There are also numerous
elections for state officials and local officials (including school board members). In
fact, in 37 states, such as President George W. Bush's home state of Texas, even
judges are elected.

Since many of these half-million elected officials had to first win a party's
nomination, there are even more elections. In addition some states, like California
and Colorado, allow voters to vote on laws and amend their state constitutions.

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II. Government and Politics

In spite of all the voting opportunities Americans have, their governments frustrate
many.

Citizens believe that government costs too much, delivers too little, and wastes their
tax dollars.

Since government has so much power, it is natural and healthy for Americans to have
some suspicion of it.

Ultimately, government is neutral. It can be used for good or for evil. Often it is a
mixture of both. After all, we have a government because men often act out of selfish
motives. As James Madison put it, "If men were angels, no government would be
necessary. "Government is one solution to the inevitability of conflict among people
living in the same community.

III. Types of Government

The type of government a person lives under makes a difference in

the quality of life they experience. Aristotle classified governments
into three basic types: government by one person, government by
the few and government by the many.

A. Government by One Person

There are several names for government by one person: autocracy, monarchy, and
despotism, just to name a few.

Whether or not government by one person is viewed as good or bad depends a great
deal on the ruler’s motives. Those who rule in the interest of the citizens of the
country are viewed as good, while those who rule with merely there own interests in
mind are viewed as bad. Saudi Arabia, Qatar, and Iraq are some countries today that
have the latter form of government.

If the maxim "power corrupts and absolute power corrupts absolutely" is based on
fact, citizens would have to totally trust one person before placing all governing
power in his/her hands.

B. Government by the Few

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 This type of government is generally called aristocracy, if rulers are selected by
heredity, or oligarchy, if rulers are determined by wealth, military power, or
membership in a political party.

While aristocracies are rare today, several oligarchies exist. China is one example.
Although different groups in an oligarchy can serve as a check on each other
(unlike an aristocracy), the centralization of power in such governments still
makes them subject to the high probability of corruption.

C. Government by the Many

Government by the many is called democracy. It takes different forms. One form,
direct democracy, is government by all of the people. In another form,
representative or indirect democracy, citizens elect representatives who make
governing decisions in the name of the people in free and open elections. In the
popular model of representative democracy, the voters are aware of the issues,
vote prospectively, and thus issue mandates to those winning the elections.

In the responsible model of representative democracy, citizens play a less active

role in making governing decisions. Voters in this model need not be well
informed since they merely grant or deny consent at elections, voting
retrospectively.

Critics of the responsible model refer to it as elitist democracy.

D. Popular and Responsible Democracy in the United States

Every real world democracy has both popular and responsible elements. Yet, each
tends to resemble one model more than the other.

Britain is a good example of the responsible model. The United States resembles
a popular model, even though the framers included elements of the responsible
model in the Constitution of 1787. Because they feared majority tyranny, the
framers included checks in the Constitution to contain majorities. Furthermore,
each national office was assigned a separate constituency.

IV. The New American Democracy

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 Since the ratification of the Constitution of 1787, American politics has evolved
in the direction of greater popular participation. This trend has accelerated
dramatically in recent decades.

A. The Permanent Campaign

The new American democracy is marked by the presence of what has been called
the permanent campaign; a situation where the next election campaign begins as
soon as the last one has ended. At least five factors have contributed to the
permanent campaign: the separation of election days, the decay of party
organizations, the proliferation of primary elections, developments in mass
communications, and advances in polling techniques.

B. Separation of Elections

A century ago, most officials were elected on the same day, but the trend in the
past half century has been to separate election days. Most Americans now turn
out to vote for president at one general election, for governor at another, and for
mayor at still another.

In addition, there are primary elections and initiative and referendum elections. It
seems as if there is always an election of some kind approaching.

C. Decay of Party Organizations

By providing voters with a choice, political parties serve an important democratic

function.

Generally speaking, the Republican Party leans to the right of the ideological
spectrum (conservative) while the Democratic Party leans to the left of the
ideological spectrum (liberal).

In the past these parties were so powerful that their organizations were called
machines. Today, they can no longer deliver the vote for candidates. Campaigns
have become candidate-centered rather than party-centered.

D. Spread of Primaries
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 In most countries, and in the early history of the United States, candidates for
office were nominated by party leaders. This system was replaced with primaries,
which are elections for selecting a party's nominee for office.

After 1968 presidential primaries (for selecting delegates to the party's national
conventions) took on a new importance due to their proliferation.

Since all primaries occur before the general election, they shorten the interval
between one election and the next.

E. Mass Communications

Technological advances in communications also have helped to make campaigns

continuous.

Candidates today have numerous outlets through which to communicate with

voters (rather than relying on the party). Inexpensive long-distance telephone
rates, the proliferation of cable television channels, C-SPAN, radio talk shows,
and the Internet are all examples.

Better communications have obliterated the distance that once separated elected
officials from the voting public.

F. Profusion of Interest Groups

The social movements of the ‘60s and technological

developments have resulted in an increase in interest groups.
Instead of just a few large business, labor, and agricultural
organizations, that characterized the decades prior to the 60s,
there are now thousands of generally smaller, more narrowly
focused organizations. These groups are sometimes known as
single-issue interest groups, i.e. "Save the Dolphins," "Right to
Life," etc.

G. The Proliferation of Polls

A final explanation for the shift toward a more popular democracy is the advent of
polling. While politicians since the early years of the republic have been
concerned with public opinion, advances in polling have taken the guess-work out
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 of what the voters are thinking. The media also spend a great deal of time
discussing public opinion.

The result is the advancement of the permanent campaign by making electoral

implications visible from the beginning.

H. Money

The permanent campaign has greatly increased politicians' need

for money, making the quest for money continuous, too. In large
states, incumbent governors must raise $50,000 every week of
their term to fund their reelection efforts; for U.S. Senators, the
figure is $15,000 a week (for six years).

One consequence of this emphasis is more fund- raising scandals

and repeated calls for reforming the system.

V. Minorities and Elections

To say that American democracy is moving in a popular direction is not to say

that a majority of the people govern.

A. Voter Participation

The largest turnout is in presidential elections, yet in the 1996 presidential

election about only percent of registered voters and in the 2000 presidential
election 51 percent voted. Turnout is lower for congressional elections and much
lower for local elections.

Groups who turn-out to vote the most (such as older voters) seem to be more
successful in getting the government to adopt policies they want.

B. Primaries

Turnout for primary elections is less than turnout for general elections.

7
 Those who vote in primaries are usually more involved, more committed, and
more extreme in their issue positions than citizens who don't vote. This causes
ideological differences between presidential candidates, which are accentuated
during primaries.

C. Campaign Resources

To save on campaign expenses, candidates seek volunteers. To get volunteers,

candidates may appeal to single-issue voters. The groups and interests these
individuals represent also seem to have an advantage in politics.

D. Uninformed or Misinformed Citizens

Most people are not that interested or involved in politics,

and the multiple opportunities for bias increase the
opportunities to manipulate public opinion.

VI. Majorities and Elections

While contributors and single-issue groups may typically have more political
influence than others, when the majority is united and determined, the majority
often gets its way.

Even when not united and determined, the public still has latent power due to the
fact that politicians know that any issue could suddenly be highlighted by the
press, causing the public to respond. They also know that challengers (those who
may run against them in an upcoming election) will be informing the public of
their actions.

In short, since leaders are never sure which potential issue will explode, they tend
to be cautious in handling all of them.

VII. Reform?

In spite of the fact that many people seem to be frustrated by American

government, most proposed reforms proposed would move America closer to the
popular model of representative democracy, causing more of the same problems.

Since politicians are always cautious about what the public thinks, popular
influence on government may be part of the problem, not the solution.
8
 First and foremost, politicians want to get elected and then reelected. The
simplest way to do this would seem to be to keep constituents happy. Since
national politicians represent so many diverse constituents, the result is often what
is currently called gridlock.

Thus, reforms that shift American politics in a still more popular direction may
worsen problems rather than improve them.

Thus, a few reformers recommend moving back toward a more responsible, less
popular democracy.

VIII. The Benefits of an Electoral Democracy: A Pretty Good Government

One irony of the new American democracy is that while citizens have more
opportunities than ever before to influence their government, Americans have
been growing increasingly unhappy with it.

Even when things don't seem that bad, Americans stay frustrated. One
explanation might be found in the maxim, "the best is the enemy of the good." In
other words, the wish for perfection in government and politics often makes
people unhappy with their government and their leaders.

If American politics is so bad, why are so many other countries copying our
system, and why do we have to guard the borders to keep people out?

Tyranny still exists in the world. While Americans should not think that their
government is blameless because it is not tyrannical, they should be more careful
about the standards used in evaluating their political system.

Only when comparing the United States with other countries do we see that
American democracy, for all its faults, has extraordinary capacities as well.

Comparatively, Americans can vote more, speak out more, and encounter a
government that discriminates less and protects them better against foreign
aggression.

This does not mean that America cannot learn from other countries. But
comparative analyses suggest that not much would be gained by substituting the
institutions of any other country for the ones that the United States now has.
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IDEAS FOR LECTURES OR DISCUSSION

1. The authors refer to Aristotle without really giving his full typology of governments.
This would make an interesting chalkboard/PowerPoint presentation to discuss.

Aristotle's Typology of Government

Perverted Non-Perverted
(Rulers think only of themselves.) (Rulers make decisions based on the good of all.)

One tyranny monarchy

Few oligarchy aristocracy

Many democracy polity

Students will be surprised to see that democracy is considered to be a perverted form of

government. Of course, the word means "people rule," and in Aristotle's time, that would
have meant rule by the least educated. In addition, it would have meant unrestrained rule
by the least educated.

Viewed in this way, students perhaps will not be so shocked by Aristotle's

classification. Democracy in America, is not unrestrained majority rule. The
framers of the Constitution designed the document to, at times, thwart majority
rule. In addition, the Bill of Rights (added in 1791) is a significant check on
numerical majorities.

Furthermore, what the framers expected was more along the lines of what
Aristotle called a polity. (That word does not appear much anymore except in
some political literature.)

These points can be tied in with the discussion in this chapter over the differences
between the two types of representative democracy: popular and responsible.

10
2. The Federalist Papers could also be used in connection with this chapter.

The authors point out the differences between responsible and popular
representative democracy. The framers (as revealed in the Federalist Papers) had
definite opinions on this subject. Below are a few quotes to demonstrate their
thinking. (Refer to the full essays to complete the thinking of the framers.)

(A) "To secure the public good and private rights against the danger of such a faction,
and at the same time to preserve the spirit and the form of popular government, is then
the great object to which our inquiries are directed."

The "such a faction" reference is to "majority factions." Publius, therefore, is

saying the framers were concerned with allowing majority rule, but at the same
time designing the government so that the numerical majority did not ignore the
rights of others or the good of the community as a whole.

(B) "A republic, by which I mean a government in which the scheme of representation
takes place, opens a different prospect and promises the cure for which we are seeking."

Here we see the framer’s belief in representative government as a cure for the
problems that had beset direct democracies in the past.

One advantage of a representative democracy over a direct democracy is "to

refine and enlarge the public views by passing them through the medium of a
chosen body of citizens whose wisdom may best discern the true interests of their
country...."

Here, clearly, we see the framers coming down on the side of the responsible
model of representative democracy. The rulers are to "refine and enlarge the
public views," not give the majority exactly what it wants. As Publius states in
another essay, "...the people commonly intend [notice the emphasis] the public
good....But their good sense would despise the adulator who should pretend that
they always reason right about the means of promoting it." (Federalist 71)

(C) Publius takes a strong stand for responsible representative democracy in Federalist
10 stating, "Under [a representative democracy] it may well happen that the public voice,
pronounced by the representatives of the people, will be more consonant to the public
good than if pronounced by the people themselves convened for the purpose."

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 This is not how moderns think, but Publius clearly thinks that representatives may
be better able to make decisions for the good of all than the majority of citizens
acting on their own.

Of course in the next sentence Publius is quick to point out, "On the other hand,
the effect may be inverted." While representative democracy might provide a
cure for the problems of direct democracy, it also provides an opportunity for
rulers (and government) to ignore the public's wishes and not respect the rights of
citizens.

This was the problem faced by the framers--how to reconcile their faith in
representative democracy with their lack of faith in people holding positions of
power.

(D) "The republican principle demands that the deliberate sense of the community
should govern the conduct of those to whom they entrust the management of their affairs;
but it does not require an unqualified complaisance to every sudden breeze of passion, or
to every transient impulse which the people may receive from the arts of men, who flatter
their prejudices to betray their interests." (Federalist 71)

To Publius, there is a difference between the "sense of the community," as

measured by the strict wishes of the numerical majority, and the "deliberate sense
of the community."

These quotes would indicate that the framers came down on the side of
responsible representative democracy rather than popular representative
democracy. Thus, any discussion of reforming American government today
would, from the framers point of view, not be in favor of making the government
more popular.

Of course the framers did believe that in the end, the people should be able to
decide governing policies. They merely took steps to bias the system of
governance in favor of deliberate rule. Hence the need for things like checks in
the Constitution. But as the authors of the text state, when the American public is
united and determined, it usually prevails (as the framers would have intended).

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LISTING OF TRANSPARENCIES

Each transparency listed is followed by the Text Figure (or Table) number, followed by
the text page.

T1 Two Models of Democracy, unnumbered, 14

T2 Growth in the Number of Presidential Primaries, 1.2, 19

T3 Today's Media Love to Conduct Their Own Polls, 1.4, 22

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14
CHAPTER TWO

Establishing a Constitutional Democracy

OVERVIEW

The Constitution was written to rectify difficulties the country experienced under the
Articles of Confederation. It granted Congress greater powers, established an
independent executive, and created the Supreme Court. Incorporated into the
Constitution were ideas of Thomas Hobbes and John Locke: consent of the governed and
separation of powers. The Connecticut Compromise resolved the issue of bicameralism
in Congress.
When disputes arose over selecting the president, the delegates settled for the electoral
college.

Ratification of the Constitution was done in special state conventions. Those arguing for
ratification were called Federalists. Those opposed to ratification, Antifederalists,
demanded a Bill of Rights, which was promised after the Constitution went into effect.
Anticipating the need for changes, the framers included an amending procedure.

LEARNING OBJECTIVES

1. Explain what procedures were used to ratify the Constitution and who the Federalists
and Antifederalists were.

2. Summarize the main components of the "colonial experience with democracy."

3. Distinguish between proprietary and royal colonies.

4. Explain the nature of voting qualifications prior to the Revolutionary War.

5. Discuss how the taxation issue fomented rebellion in the colonies.

6. Review key philosophical contributions of Locke and Hobbes and how American
political thinking was reflected by the Declaration of Independence. Also, review Whig
political theories.

15
7. Delineate the key provisions of the Articles of Confederation, the key decisions and
compromises made by delegates to the Constitutional Convention of 1787, and the nature
of the ratification debate between the Federalists and Antifederalists.

8. Delineate and explain the main flaws and accomplishments found in the U.S.
Constitution.

9. Review the means by which the Constitution can be amended and be sure to explain
why so many proposed amendments are never ratified.

KEY TERMS

advice and consent Mayflower Compact

Annapolis Convention Necessary and Proper Clause
Antifederalists New Jersey Plan
Articles of Confederation Patriots
Bill of Rights patronage
Cabinet proprietary colony
checks and balances royal colony
colonial assembly Shays's Rebellion
colonial council Second Continental Congress
Connecticut Compromise separation of powers
Constitution Stamp tax
Declaration of Independence stamp Act Congress
divine right Supremacy Clause
electoral college taxation without representation
Federalist Papers Three-fifths Compromise
Federalists Tories
First Continental Congress Virginia Plan
judicial review Whigs

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OUTLINE

I. The First National Election

The framers stipulated that the Constitution would not go into effect until it was
ratified in nine states in special ratifying conventions.

Those favoring ratification, known as Federalists, included several prominent

citizens (George Washington and Ben Franklin, for example).

Those opposing ratification, known as Antifederalists, lacked strong national

leadership.

As outlined in Article VII, the Constitution was approved by the necessary nine
states in 1788. George Washington was elected president in 1789, and by 1790
all of the original 13 states had ratified the Constitution.

II. The Colonial Experience With Democracy

When the British began colonization of what is now North America, they believed
rulers had a right to rule due to God's will.

Yet the Pilgrims who sailed to a British colony aboard the Mayflower in 1620
rejected the notion of rule by divine right. Thus, before leaving their ship, they
agreed to be governed by consent (Mayflower Compact).

A. Governance of the Colonies

Colonial governments were typically ruled by an appointed governor and a

legislature composed of an assembly (elected by qualified colonists) and a council
(appointed by British officials).

Governors could veto laws passed by the legislature, but their power was
primarily due to the ability to appoint those sympathetic to them to government
positions.

Legislatures countered this influence through control of taxes and the salaries of
governors and appointees of the governor.

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 B. Voting Qualifications

Colonists did not allow women, slaves, indentured servants, or aliens to vote.
Furthermore, property restrictions for voting in some colonies disenfranchised
one-fourth to half of the male population.

In spite of these restrictions on voting, the foundations for the American

democratic experiment were established during the colonial era.

III. Spread of Democratic Ideals During Revolutionary War

A. Taxation Without Representation

This democratic spirit flourished as the colonists began to oppose British

practices. They objected to British taxes since they were not represented in
parliament. Eventually, they engaged in acts of violence.

B. The Continental Congresses

When the British took steps to punish the colonists for these acts, the colonists
responded in 1774 by calling the First Continental Congress.

Those colonists who took the lead in opposing the British, known as Patriots,
fired upon British soldiers in 1775 in what became known as the shots heard
round the world. Fighting erupted throughout the colonies.

The Second Continental Congress passed the Declaration of Independence on July

4, 1776, and the official war for independence began. After seven years of
fighting, the British recognized the independence of the colonists (now states) in
1783.

IV. Theory of Rights and Representation

A. The Declaration of Independence

The Declaration of Independence expressed a strong belief in government by

consent and the protection of God-given rights.

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 B. American Political Thinking

Three primary views epitomized the political thinking of Americans at this time:
(1) consent of the governed, (2) separated power, and (3) rights and
representation.

1. Consent of the Governed

Writing in 1651, Thomas Hobbes provided a philosophical justification for

government by consent.

2. Separated Power

Forty years later, John Locke provided a justification for separation of powers
(legislative, executive, and judicial).

a. legislative power - to make law (composed of two chambers)

b. executive power - to enforce the law

c. judicial power - to apply the law (exercised by independent judges)

3. A More Participatory Democracy

A group of British citizens who opposed British patronage and corruption were
called Whigs. One of the more prominent was James Harrington, who wrote
about the importance of representation and the rights of qualified voters.

4. Colonial Interpretation of Whig Theory

Harrington's ideas found acceptance in America and were articulated in Thomas

Paine's very popular pamphlet called Common Sense.

V. Government After Independence

After independence, states became more democratic than colonial governments.

They eased voting restrictions and gave governors short terms. One result was the
decrease in the number of wealthy serving in state legislatures.

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VI. The Articles of Confederation (1781-1789)

The Second Continental Congress proposed a national government (the Articles

of Confederation) in 1777. It went into effect in 1781 when ratified by all 13
states.

A. Provisions of the Articles

The national government created by the Articles was weak, principally because
states remained sovereign and Congress had very few significant powers,
especially those that deal with fiscal issues.

What powers it did have the states also had. The Articles created only one
national institution: a Congress in which each state had one vote.

B. Government under the Articles

Problems caused by different state currencies, state disputes over trade, incidents
of domestic unrest (like Shay’s Rebellion) and threats from foreign countries
caused men like James Madison to call for a new national constitution.

VII. The Constitutional Convention

When attendance was too poor at the Annapolis Convention for any reforms to be
proposed, the call went out for a convention in Philadelphia to meet in May of
1787. Every state but Rhode Island sent delegates to the convention.

Most of the delegates attending agreed that the national government needed to be
strengthened.

Two major factors divided the delegates: small states vs. large states and northern
states vs.southern states.

A. The Virginia Plan

The delegates chose as the basis for their initial discussions the Virginia Plan, the
constitutional proposal supported by delegates from large states.

20
 It called for a Congress composed of a House (elected by voters) and a Senate
(elected by state legislatures). Representatives in both houses would vary from
state to state based on a state's population. It also called for Congress to elect an
independent executive and the creation of an independent Supreme Court.

B. The New Jersey Plan

The smaller states countered with their own proposal: the New Jersey Plan. Like
the Virginia Plan, it called for three independent branches (Congress, President,
and Judiciary), but it would retain the single house in the Congress with each state
having one vote.

C. The Connecticut Compromise

To settle the differences between these two proposals, the delegates approved the
Connecticut Compromise. Congress would be composed of two houses. In the
House of Representatives, state representation would be based on population. In
the Senate, every state would have an equal vote.

VIII. A Government of Separated Powers

A. Congress

The delegates granted several significant powers to Congress. Voters would elect
representatives to the House for two year terms and state legislatures would elect
Senators to six year terms. They refused to place any term limits on either
Representatives or Senators.

B. The Executive

The delegates created a position for a president who must frequently act in
concert with Congress or the Senate to exercise powers.

The House can impeach the president for committing high crimes and
misdemeanors, and the Senate can acquit or convict and remove an impeached
president.

21
 C. The Electoral College

When large and small states differed over how to elect the president, the delegates
compromised and created the electoral college. The number of electoral votes a
state has is based on its total representation in Congress. Each state can decide
how electors are chosen.

D. The Judicial Compromise

The delegates created a Supreme Court, appointed by the president (with consent
of the Senate) for an unspecified term ("good behavior"). Refusing to create
lower federal courts, the delegates gave this power to Congress. Congress created
lower federal courts in 1789.

The delegates also specified that the Constitution was the supreme law of the land
which all judges (federal and state) are bound by oath to uphold.

E. Compromising on the Issue of Slavery

The delegates refused to ban slavery but did put a 20 year limit on continuing the
slave trade. A compromise was reached on the subject of how to count slaves for
purposes of representation in the House of Representatives: Each slave would
count as three-fifths of a non-slave (the three-fifth's compromise). In exchange
for this, Southern states agreed to grant Congress the authority to tax imports.
They also included the Fugutive Slave clause (Article 4) and the 1808 slave trade
clause (Article I) to appease any southern dissent.

IX. The Bill of Rights

Thinking that protection of rights would be a state responsibility, the delegates did
not include a Bill of Rights. To alleviate criticism for this, the Federalists
promised to add a Bill of Rights to the Constitution if states ratified it.

X. The Antifederalist-Federalist Debate

Antifederalists were also theoretically opposed to the Constitution. They thought

it gave too much authority to the national government, leaned toward monarchy,
and would create an aristocracy.

22
 The Federalists answered these concerns in a series of newspaper articles, now
known as the Federalist Papers.

The authors of those essays thought the threat of tyranny could come from outside
or within the country. This threat explained why the Framers instituted a set of
checks and balances, dividing power between the nations and states and a
bicameral Congress.

XI. Amendments to the Constitution

Realizing the Constitution would need to be changed, the framers provided for a
method of formal amending. Of the four different methods, the most frequently
used is for Congress to propose (two-thirds vote) and state legislatures to ratify
(three-fourths of states).

This procedure is so difficult that only 27 amendments have been ratified (with
the Bill of Rights containing 10 amendments added in 1791). The most frequent
type of amendment is those expanding the right to vote.

XII. The Constitution: An Assessment

The debate over the Constitution endured far beyond the ratification
period. Modern historians debate the framer’s intent in designing the
Constitution as they did. In his book "The Economic Interpretation of
the U.S. Constitution, Charles Beard argues that the framers were
motivated by a desire to help the powerful and wealthy. In contrast,
Bailyn and Wood see the framers as motivated by the ideals of the
Whigs. Some classroom dialgue should be exercised here.

A. A Step Backward?

Both views could probably overstate their case.

From a democratic perspective, certain parts of the 1787 Constitution

could be criticized: continuation of the slave trade (until 1808), failure to
extend the right to vote, and failure to list the rights of citizens. In defense
of the Framers, some of the failures were designed to help guarantee
ratification.

23
B. Achievements

The Framers did draft a document that contributed to the solution of two
of the immediate problems facing the United States. First, it created a
unified nation capable of defending its member states and citizens.
Second, it facilitated the country's economic development by outlawing
state currencies and eliminating state tariffs.

They also created a presidency, filled first by Washington, that provided

strength to the new national government.

C. The Constitution Today

The Constitution created a framework that facilitates a popular democratic

experiment. In doing so, different interests could compete such that
majority tyranny would be prevented (whether old interests of the Framers
or newer interests today).

1. Constitutional Ambiguity: A Virtue

By relying on ambiguous language in drafting the Constitution, the

framers were able to allow the document to adapt to modern
problems and concerns. This has prevented the need for constant
revision in the document.

2. The Stain of Slavery

The framers' refusal to ban slavery allowed that institution, and all of
its problems, to continue, but it is hard to see how they could have
prohibited slavery and also gained ratification for the document.
Please see John Hope Franklin's book: "From Slavery to Freedom"
about the impact of slavery. The discussion of Reparations for
African-Americans can also be discussed.

24
IDEAS FOR LECTURES OR DISCUSSION

1. The Declaration of Independence vs. the U.S. Constitution

Students do not always perceive the different purposes served by the Declaration
of Independence and the U.S. Constitution. They often confuse the two, thinking,
for example, that the Constitution of 1787 stated "all men are created equal” or
recognizes inalienable rights.

The two documents served different purposes, and because of this there are
striking contrasts between them.

The Declaration of Independence:

If one word had to be used to summarize the meaning of the Declaration of

Independence it would be liberty. The document was intended to justify
revolution because the colonists thought their liberties were being violated. Thus
the document stresses that there are such things as inalienable rights (such as life,
liberty, and the pursuit of happiness).

The U.S. Constitution:

The one word that summarizes the purposes of the Constitution is “stability.”
[Note: This is typically the approach taken by history texts, but there is an
alternative view. See, for example, Martin Diamond's persuasive text, “The
Founding of the Democratic Republic”] As the students learn when reading
Chapter Two of the text, the Constitution was a reaction to the failures of the
Articles of Confederation. The Convention was called because of such actions in
the states as Shay’s Rebellion. In short, citizens were concerned with stability.

Below are some additional specific contrasts between the two documents:

Equality:

The Declaration of Independence refers to the "equality of man." The

Constitution does not mention equality (until the 14th Amendment ratified in
1868).

25
Natural Rights:

The Declaration of Independence states that people have God-given inalienable

rights. The Constitution makes no reference to either God or inalienable rights.
Of course, later amendments make reference to rights (especially amendments
one through nine). But even the 14th Amendment, which makes specific
reference to states not depriving people of life, liberty, or property without due
process of law. Logic would dictate, and practice has borne out, that the state may
constitutionally deprive people of life, liberty, and property as long as due process
is followed.

Democracy:

Conventional wisdom has it that the Declaration of Independence endorses

democracy and the Constitution of 1787 is undemocratic. [This view would,
itself, make for interesting class discussion. For specifics, see Martin Diamond's
book mentioned above.] If one accepts these views (for arguments sake or
because one thinks them true), the difference between the two documents is
obvious.

The democratic aspect of the Declaration comes primarily from the reference to
legitimate government originating from the consent of the governed (and the
entire historical context, seen specifically in the long list of complaints against the
British).

The undemocratic aspects of the Constitution include filters for electing the
president (the electoral college) and the Senate (state legislatures, until ratification
of the 17th Amendment in 1913). Furthermore, all federal judges are appointed.
Also, a majority of Congress cannot propose an amendment to the Constitution.
Nor may a majority of Americans ratify an amendment.

Another undemocratic criticism of the Constitution is that It guarantees every

state, regardless of population, two Senators; which weren't even directly elected
by the people until the ratification of the 17th amendment.

Finally, the qualifications of voters is not specified in the Constitution of 1787,

allowing states to disenfranchise blacks, women, the young, and whomever else
they want to deny the vote.

26
 In fact, if the Constitution is a democratic document today, it is because
Americans have seen fit to amend it. Here is a list of amendments that have made
the Constitution, so the argument goes, more democratic:

13th (1865) - prohibition of slavery

14th (1868) - legal equality
15th (1870) - no denial of vote based on race
17th (1913) - popular election of U.S. Senators
19th (1920) - no denial of vote based on sex
23rd (1961) – citizens of Washington, D.C. are granted electoral votes
24th (1964) - poll taxes prohibited
26th (1972) – voting age lowered to 18

Revolution:

A final contrast between the two documents is the right of revolution. The
Declaration specifically recognizes the right, while the Constitution makes no
reference to it. (In Article III, the Constitution gives Congress authority to punish
those found guilty of treason.)

2. What's NOT in the Constitution (and the Importance of the Federalist Papers)

Most texts, including this one, inform students what is in the Constitution in the
chapter on the Constitution. For a good change of pace, this can be taught using a
unique (and hence, one hopes, more stimulating) technique. Use a class session to
discuss what is NOT in the Constitution. This is also a good time to introduce
them to some specifics in the Federalist Papers. [Note: It can also be a good time
to talk about methods of constitutional interpretation, although it would also be
appropriate to discuss that during the chapter on the judiciary.]

Constitutional Principles:

If students are asked (and it can be both fun and stimulating to ask this in class)
what are the basic ideas or principles of the U.S. Constitution, they will often
name the things they learned in secondary school: democracy, separation of
powers, checks and balances, judicial review, and federalism. None of these
things are in the U.S. Constitution (not in the document as written in 1787 nor in
any amendments).

27
 This is not to say that these ideas are not expressed in the document or permeate
the document, but it is somewhat odd that the things we think of as most
important to the Constitution are not to be explicitly found there.

And, of course, explicit is the key word here. These are ideas that can be found in
the Constitution, they just are not explicit. How do we, for sure, know they are
there. The answer for that can be found in the Federalist Papers.

Federalist 10:

Simply put and from a procedural point of view, democracy is rule by simple
majority. Although our framers are accused of creating a republic rather than a
democracy, sometimes they used the words interchangeably. Madison did this in
one section of Federalist 10.

After introducing the reader to the problem of factions, Madison states that
factions cannot be prevented but their effects can be controlled. Factions can be
either a majority faction or a minority faction. Under the Constitution, the latter
are not a problem. Why? Madison states, "If a faction consists of less than a
majority, relief is supplied by the republican principle."

Democracy or Republic?:

In other words, here republican is used as synonymous with simple majority rule.
If a sinister faction consists of a numerical minority, simple majority rule will
defeat it. The majority will prevent it from imposing its will on the rest of
society. This is democracy, as Madison saw it, and it will operate under the U.S.
Constitution in spite of the fact that the word “democracy” does not appear in that
document.

Separation of Powers:

The words "separation of powers" and "checks and balances" do not appear in the
Constitution. (Some state constitutions do have entire Articles devoted to
explicitly recognizing these concepts).

These two concepts are central to understanding the Constitution, both how it
works and what motivated the framers in designing it. Federalist Papers 47-51 are
devoted to these two concepts and an entire lecture could be spent on what is said
there about them. Here are some highlights.
28
 The classic quote in support of separation of powers appears in Federalist 47.
"The accumulation of all powers, legislative, executive, and judiciary, in the same
hands, whether of one, a few, or many, and whether hereditary, self-appointed, or
elective, may justly be pronounced the very definition of tyranny."

How does one keep the departments separate? That is a problem, because power,
in the framer’s point of view, is encroaching. The branch to be feared the most is
Congress. In describing the legislative branch in Federalist 48, Madison describes
it as "everywhere extending the sphere of its activity and drawing all power into
its impetuous vortex."

Checks and Balances:

Paradoxically, the framer’s design for keeping the departments separate was by
uniting them. Give each a bit of the powers of the other. In Madison's words,
"unless these departments be so far connected and blended as to give to each a
constitutional control over the others [what we call "checks and balances"], the
degree of separation can never in practice be duly maintained."

In Federalist Papers 49 and 50, Madison critiques two of Jefferson's ideas for
keeping the departments separate. In both cases, Madison rejects the ideas as
unworkable (relying instead on checks and balances).

Madison concludes the series in the often-quoted Federalist 51. Having rejected
Jefferson's notion of occasional or periodical conventions to correct imbalances
among the three departments, he states:

“But the great security against a gradual concentration of the several powers in
the same department consists in giving to those who administer each department
the necessary constitutional means and personal motives to resist encroachments
of the other.”

He states the calculus of establishing a good government: "In framing a

government, the great difficulty lies in this: you must first enable the government
to control the governed [this was done by giving the national government greater
powers than had existed under the Articles] and in the next place oblige it to
control itself [this was done by checks and balances].”

29
 What is the fuel that drives the system? Madison states, "Ambition must be made
to counteract ambition." Here and throughout the Federalist Papers, students can
see the concept of separation of powers and checks and balances.

Judicial Review:

The theory of judicial review is discussed in Federalist 78. [The framer’s belief in
judicial review, although not used by that name, can be seen in Madison's Notes
of the Constitutional Convention; see Farrand's edition.] In this Essay, Hamilton
asserts that the Constitution is a fundamental law.

Early on in the essay Hamilton notes that the Constitution is a limit on what the
government may do (by specifying the powers of government). It also contains
specific limits on what the government can and cannot do. For example, ex post
facto laws are prohibited.

Then Hamilton makes this statement which is clearly an endorsement of judicial

review: "Limitations of this kind can be preserved in practice no other way than
through the medium of courts of justice, whose duty it must be to declare all acts
contrary to the manifest tenor of the Constitution void."

Federalism:

The framers there were aware of only two ways of establishing the legal
relationship between the central government and the states: confederation (as in
Articles of Confederation) and national (or what today is called unitary). Yet they
rejected these two types and created a third: federalism.

In Federalist 51, Madison notes that federalism provides the citizens of the United
States with a double security. There are two levels of government (national and
states) to which to appeal, and each level is subdivided into different branches.
This fragmentation of government helps prevent tyranny. "The different
governments will control each other, at the same time that each will be controlled
by itself."

At the same time, federalism helps prevent tyranny of the majority by permitting
the creation of a large republic.

30
LIST OF TRANSPARENCIES

Each transparency listed is followed by the Text Figure (or Table) number, followed by
the text page.

T4 Key Points in the Democratization of the United States, 2.1, 40

T5 North America at the Time of the Writing of the Constitution, 2.3, 49

T6 Amending the Constitution: A Two-Stage Process, 2.4, 61

31
32
CHAPTER THREE

Federalism: Division of Power Among National, State, and Local

Governments

OVERVIEW

The framers combined elements of a confederation and national (now called unitary)
system when drafting the Constitution: It is called federalism. Questions over this dual
sovereignty have been litigated a great deal. The Supreme Court has interpreted three
clauses in particular in such a way as to expand national powers: the necessary and
proper, the commerce, and the spending clauses.

In the 1960s, a new era of federalism began: cooperative (marble-cake) federalism. One
aspect of this was the national government giving state and local governments money in
the form of categorical grants. In recent years, Republicans have advocated shifting the
emphasis of federalism to block grants. Despite the expansion of federal power, state and
local governments remain vital components of the federal system.

LEARNING OBJECTIVES

1. Explain the difference between cooperative federalism and the earlier concept of dual
sovereignty.

2. Discuss why the debate over the power relationships in a federal union have been a
pervasive and persistent issue in American politics.

3. Define and/or explain the following: necessary and proper clause, nullification,
commerce clause, spending clause, categorical and block grants, devolution, and
implementation.

4. Explain what problems exist with the implementation of grants in the political system.

5. Review and itemize the various types of local governments.

6. Discuss the political relationship between states and their local governments.

33
7. Review the nature of state and local elections as well as why turnout is lower in these
elections when compared to presidential elections.

KEY TERMS

block grant laboratories of democracy

categorical grant marble-cake federalism
commerce clause McCulloch vs. Maryland
cooperative federalism necessary and proper clause
devolution New Deal
Dillion's rule nullification
dual sovereignty spending clause
federalism supremacy clause
general revenue sharing unfunded mandates
implementation unitary government
intergovernmental grant War on Poverty
judicial review

OUTLINE

I. The Federalism Debate: It's New But It's Old

Federalism divides fundamental governmental authority between at least two

different levels.

Most countries today operate under the unitary system.

For several reasons, federalism has long been thought ideally suited to U.S.
conditions. Federalism has become more popular in countries undergoing major
political change.

34
A. The Contemporary Debate

Throughout U.S. history, and continuing today, differences of opinions have

existed over the distribution of powers between the national level of government
and the state and local levels of government.

Republicans tend to advocate more power being exercised by state and local
governments, while Democrats tend to favor the national level. In recent times,
this debate has focused on the desirability of unfunded mandates (the imposition
of federal regulations on state and local governments without appropriating
enough money to cover their cost).

It is in Congress' interest to pass unfunded mandates. When Congress does this,

they can take credit for doing something about a problem while not having to
raise taxes to pay for it.

After Republicans took control of both houses of Congress in 1995, they followed
up on their platform of devolution and passed a federal law banning any new law
that was not adequately funded (and reduced the size and scope of many federal
programs). This trend continues today.

B. Federalism and the Ratification of the Constitution

During ratification, the Federalists favored a strong national government. The

Antifederalists opposed a strong national government.

The Constitution was a compromise between these competing views. The

Federalists favored the necessary and proper clause and the supremacy clause.
The Antifederalists succeeded in a specific enumeration of Congress' powers,
some independent powers assigned to the states, guarantees on state boundaries,
and a promise of a Bill of Rights (including one amendment that recognized state
reserved powers).

II. The Evolution of Federal Theory

Because the Constitution was a compromise of opposing viewpoints, disputes

have repeatedly occurred between those favoring a strong national government
and those favoring more power to the states.

35
 The Supreme Court has played an important role in this struggle. Through the
exercise of judicial review, it can declare state or national laws unconstitutional.

Elections also impact the balance of power. Who wins control of Congress can
determine the kinds of federal laws that are passed (having an impact on
federalism).

A. Dual Sovereignty

Contrary to Thomas Hobbes’ political theory, the framers believed that creating
two sovereigns (national and state) could help prevent tyranny of the majority and
help protect individual liberty.

B. The Doctrine of Nullification

So strong was the notion of dual sovereignty in the early years of the republic,
some states believed they could nullify national laws that threatened state or
individual liberties.

The Supreme Court rejected the notion of states nullifying national laws in the
1819 case of McCulloch vs. Maryland. But the nullification issue reappeared
over tariffs in the 1830s and later over slavery. When President Lincoln opposed
the spread of slavery in the western territories, southern states asserted they had a
right to secede.

A Nullification advocate, John C. Calhoun writes in "Union and Liberty," that

"the right of interposition.. state right, veto, nullification, or by any other name, I
conceive to be the fundamental principle of our system."

Moreover, the outcome of the Civil War decided once and for all whatever
individual sovereignty meant, it did not mean that state legislatures could declare
decisions of the national government null and void.

III. Court Interpretations of the Meaning of Dual Sovereignty

The following three clauses have provided much of the basis for the expansion of
federal power.

A. Necessary and Proper Clause

36
 Chief Justice John Marshall expanded the powers of Congress by broadly
interpreting the words "necessary and proper" (hence, the clause has been called
the elastic clause).

A recent decision by the Supreme Court (New York vs. U.S., 1991) indicated that
the clause did not give Congress any power it claimed. The Court ruled that
Congress could not order states or local governments to bury its nuclear waste.

B. Commerce Clause

The meaning of the constitutional phrase giving Congress the power to regulate
commerce among the states has been hotly debated. In the latter portion of the
eighteenth century, the Supreme Court defined commerce in such a way that
Congress' powers were limited. For example, the Court exempted manufacturing
from congressional regulation. It also would not permit regulation of intrastate
commerce that affected interstate commerce.

In the 1930s, the Court reversed many of these earlier commerce decisions. The
result was that Congress' power was greatly expanded. Some thought there was
nothing Congress could not regulate in the name of regulating commerce.

A recent decision of the Supreme Court indicated there are limits to this broad
authority. As an exercise of its power to regulate commerce, Congress passed a
federal law making it a crime to possess a gun within 1,000 feet of a public
school. The Court ruled that Congress lacked the authority, in the name of
regulating commerce, to pass the law, declaring it unconstitutional.

C. Spending Clause

The spending clause grants Congress the power to collect taxes to "provide for
the...general welfare." The Supreme Court, at least since the 1930s, has also
interpreted this clause in such a way that Congress' authority is vast.

The Court has also upheld Congress attaching reasonable regulations to money it
allocates to state and local governments. It is this authority that has resulted in the
theory and practice of cooperative federalism.

IV. Cooperative Federalism

37
 The notion of cooperative federalism, also known as "marble-cake" federalism,
stands for the idea that all levels of government could and should perform all
governmental functions together (hence, the marble cake analogy). The
governments work together to provide the most efficient method. It’s a more
interactive relationship

This idea was endorsed strongly in the 1960s with the passage of numerous
intergovernmental grants, such as the LBJ led Great Society programs

A. Categorical Grants

Some politicians (particularly Democrats) view intergovernmental grants as a way

of advocating a particular political philosophy. Thus, they advocate a particular
type of grant, the categorical grant. These grants are specific about how the
money given to state and local governments can be spent. The War on Poverty
programs from the 1960s is an example.

B. Problems of Implementation

When problems developed over the War on Poverty programs, scholars

reexamined the intergovernmental grant program. Some concluded that when
implementing these grants, for various reasons, they would not be as effective as
originally thought.

C. Block Grants

Congress responded to the implementation theorists’ criticisms of

intergovernmental grants by replacing many categorical grants with block grants:
with broad objectives, a minimum of federal restrictions, and a maximum
discretion for local officials.

First, during the Nixon administration, Congress passed general revenue sharing
(not replacing, but supplementing categorical grants).

Under the Reagan administration, several categorical grant programs were

converted to block grants, and general revenue sharing was eliminated.

In 1996, Congress transformed the large categorical grant program known as

AFDC (Aid to Families with Dependent Children) into a block grant.

38
 One criticism of these grant programs is that wealthier states get as much aid as
poorer states.

One argument in favor of federal grants is that they are necessary to maintain
properly funded social programs.

V. Local Government

Local governments maintain roads, take care of the parks, provide police, fire, and
sanitation services, run the schools, and do many other things. The recent
devolution of responsibilities to state and local governments means that they play
an even more important role.

A. The Number and Types of Local Governments

There are nearly 70,000 units of local government. In most states, the basic unit
of local government is the county. The number of municipal governments has
also increased in recent years. Finally, there are nearly 30,000 special districts.

B. Local Elections

Most local governments are run by elected officials, though special-district heads
are often appointed. Turnout in local elections is low, partially due to the fact that
local politics is generally less contentious (except in big cities).

C. Popularity of Local Government

Americans have more trust in their local governments than in the federal
government.

One explanation is that voters can move to a better local if they are displeased.
Local governments also serve as laboratories of democracy, and their wide variety
gives people a choice.

D. Limits on Local Government

Local governments face several dilemmas. If a local government tries to provide

substantial services to the needy, it runs the risk of attracting more poor people to
its community and driving away the better off.

39
 Local governments also find themselves competing with one another to attract
businesses.

VI. State Governments

The basic design of most state governments bears a strong similarity to that of the
national government.

All states have a multi-tiered court system, a bicameral legislature (except

Nebraska), and an independently elected governor.

State governments have become increasingly professionalized in recent decades.

There was, in the 1990s, a reaction in some states against this professionalization.

A. State Elections

Most state officers are held by Republicans or Democrats. The traditional pattern
of Democrats being strong in the South and Republicans being strong in the
North has broken down in recent years. The most recent pattern is for Democrats
to dominate the state legislature and Republicans to control the governor's office.

B. Variation in State Government Responsibilities

The size and range of state responsibilities have grown dramatically in recent
decades.

The amount that states and their local governments spend on government services
varies considerably. The differences depend on the wealth of a state as well as
elections. Wealthier states spend more on public services. States having more
Democrats in their legislature spend more on social services.

C. Recent Developments at the State Level

In recent years, state political institutions have become more

modern, the role of governors has grown, and states have begun
to develop their own economic policies.

1. Reapportionment and Professionalization

40
 Once the U.S. Supreme Court in the 1960s ordered states to
reapportion, turnover rose significantly, and every 10 years,
reapportionment becomes a major battle in the states.

State legislatures have become more professional. California's

legislature is one of the best examples of this; Wyoming one of
the worst. In some states, citizens reacted to the increasing
professionalism by enacting term limits, cutting salaries, and
reducing staffs and budgets.

2. The Resurgent Governors

Being governor of a medium-to-large sized state has often been

the springboard to running for the presidency. Since 1950,
many states have strengthened the office of governor by
lengthening terms, reducing term limitations, and enhancing
the governor's veto power.

3. State Economic Action

In the 1980s and 1990s, many states resumed the active roles
they had played in the nineteenth century in economic
development. Thus, states passed tax incentives for businesses
and pursued international avenues of trade.

IDEAS FOR LECTURES OR DISCUSSION

1. The word federalism does not appear in the Constitution. How is it manifest in that
document? It was this question that James Madison (writing as Publius) addressed in
Federalist 39.

To understand Madison's answers, one has to become familiar with the language
he used. He, along with the other framers, were aware of two methods of
arranging the two levels of government (nation-state). First was confederation,
which they also called confederal or just federal. This was the form presently in
operation (Articles of Confederation) when the framers were drafting the
Constitution. The other form was called national or consolidation. It was the
equivalent to what is called today a unitary system.

41
 Madison looked to five components of the Constitution to answer the question,
"Did the framers create a federal (confederation) system or a national (unitary)
system?"

A. Ratification

Since the Constitution was ratified by states rather than adding up votes for and
against the Constitution nationwide, it exemplified a federal system.

B. Sources of power of national officers

Here Madison examines the House of Representatives, the Senate, and the
presidency.

(a) The number of Representatives a state had was determined by its population.
This made a Representative a national officer.

(b) Each state has an equal number of Senators. People aren't being represented in
the Senate, states are. This made the Senate characteristic of a federation.

(c) The source of the president's power was the electoral college. Since it was based
on a state's representation in Congress (House and Senate), it had characteristics of
both a federal and a national system.

C. Operation of Government

In a confederation scheme of government, the central government cannot act

directly on the citizens of the subgovernments states). In a national scheme, the
central government may act directly on the citizens of the states. Since Congress,
under the Constitution, will be able to act directly on the citizens (such as taxing
them), the government characterizes a national system.

42
D. Extent of Powers

In a confederation, powers of the central government are specifically listed and

others are retained by the subgovernments (states). In a national system the
powers of the central government are indefinite. Since the powers of Congress
are enumerated (Article I, Section 8), the system characterizes a federal system.

E. Amending

Article V of the Constitution describes two ways of proposing amendments to the

Constitution and two ways of ratifying the Constitution. Ratification of
amendments is done by states, and in that sense, the system is federal. But the
method of proposal that has always been used to amend the Constitution is by
Congress. Since, as mentioned above, the House is national and the Senate
federal, proposal of amendments has traits of both national and federal.

Madison ends his essay with the following conclusion "The

proposed Constitution...is...neither a national nor a federal
Constitution, but a combination of both." Notice, Madison does
not have a name for the system the framers created. It later
came to be called federalism.

2. The text makes reference to some Supreme Court cases impacting federalism. Below
is a brief synopsis of major Supreme Court decisions affecting federalism including
several that do not appear in the text.

Martin vs. Hunter's Lessee (1816): The Marshall Court ruled that state court
decisions in civil cases could be appealed to the federal courts.

McCulloch vs. Maryland (1819): The Marshall Court ruled that the necessary and
proper clause meant Congress had implied powers that were appropriate to
exercising the enumerated powers (rather than Jefferson's more strict notion of
indispensable to exercising enumerated powers).

Cohens vs. Virginia (1821): The Marshall Court ruled that decisions of state
courts in criminal cases could be appealed to the federal courts.

Gibbons v. Ogden (1824): The Marshall Court ruled that Congress' power to
regulate commerce among the states was broad enough to include all aspects of
economic activity.
43
Dred Scott vs. Sandford (1857): The Taney Court ruled that States had reserved
powers that kept Congress from interfering with the states authority to recognize
slavery (an early statement for dual federalism).

Hammer v. Dagenhart (1918): The Court ruled that Congress could not indirectly
regulate child labor by prohibiting items manufactured by children from interstate
commerce (following the doctrine of dual federalism).

National Labor Relations Board vs. Jones & Laughlin Steel Corporation (1937):
This is the "switch in time that saved nine" case in which the Court reversed itself
and rejected its earlier dual federalism position and began recognizing that
Congress could regulate intrastate commercial activities if they affected interstate
commerce.

Wickard vs. Filburn (1942): The Court upheld the New Deal legislation known as
the Agriculture Adjustment Act. Even miniscule economic activity (planting of
11 acres of wheat) could be regulated by Congress because of the cumulative
affects on interstate commerce.

Heart of Atlanta Motel vs. United States (1964): The Court upheld the 1964 Civil
Rights Act that prohibited certain public accommodations (public hotels, motels,
and restaurants) from refusing to serve people on the basis of race. The Congress
based its authority to pass this portion of the law on its power to regulate
commerce among the states. Evidence was presented to Congress that showed
that blacks would not travel (across state lines) as much if they could be denied
service in public accommodations.

Garcia vs. San Antonio Metropolitan Transit Authority (1985): The Court
overruled its Usery decision from just nine years earlier. Both cases dealt with
intergovernmental immunity. In Garcia, the city of San Antonio unsuccessfully
argued that it was immune from the federal Fair Labor Standards Act since mass
transit was a traditional state function (which, based on Usery would have made it
exempt). The Court threw out its traditional-nontraditional standard, stating that
in future cases it would leave such decisions to the political process (since the
framers had designed federalism into the political process).

44
 New York vs. U.S. (1992): The Court ruled that while Congress can issue
conditions or regulations that States must follow in order to get federal grants,
Congress cannot merely issue an order to states. In this case Congress had
ordered states, in some cases, to dispose of nuclear waste.

U.S. vs. Lopez (1995): The Court ruled that Congress could not prohibit guns
within a 1,000 foot radius of public schools on the grounds that it was regulating
interstate commerce.

Jones vs. United States (2000) A homeowner cannot rely on a federal law, which
makes it a federal crime to "maliciously damage or destroy by means of fire or an
explosive, any building...used in interstate or foreign commerce or in any
activity affecting interstate or foreign commerce, if the residence is not a
commercial enterprise [even if the home is insured by a company that operates
nationally or natural gas from other states]."

LIST OF TRANSPARENCIES

Each transparency listed is followed by the Text Figure (or Table) number, followed by
the text page.

T7 Major Events Shaping American Federalism, 3.1, 75

45
46
CHAPTER FOUR

America: Unity Amidst Diversity

OVERVIEW

Although America has historically been ethnically, racially, and religiously diverse, it has
also shown surprising consensus on core political beliefs. The political beliefs originate
from an acceptance of classical liberalism that emphasizes the rights and liberties of
individuals (individualism). Americans tend to believe in individual responsibility and
hard work; hence their dislike for welfare. In spite of the waves of immigrants over the
years, the core beliefs of Americans have not changed much. In fact, recent scholarship
suggests that immigrants strengthen rather than weaken the spirit of individualism in
America.

KEY TERMS

citizenship equality of opportunity

civic republicanism fascism
clericalism liberalism
communism political culture
diversity political socialization
equality of condition socialism

OUTLINE

I. Americans: A Contradictory People?

Americans are, and always have been, more ethnically and religiously diverse
than the citizens of other democracies.

Yet American political views are very homogeneous. That is, Americans tend to
agree on fundamentals and share basic assumptions about how a good society
should be organized.

47
II. Social Diversity

North America was settled by a diverse people. British, Dutch, Swedes, French,
and the Spanish all settled here. Different Christian churches from Northern
Europe, these groups often fought bitterly.

In contemporary controversies about multiculturalism, both sides exaggerate the

homogeneity of the American past, although for different reasons.

A. A Nation of Immigrants Then

After ratification of the Constitution, the United States maintained the states'
existing policy of free immigration. The more rapidly the territory could be
populated, the more rapidly economic development would follow.

By the mid-1800s, Irish immigration became a major political issue, primarily

because they were mostly Catholic and poor.

Immigration increased considerably in the 1860s and continued at a high rate until
World War I. In the Midwestern battleground states and much of the East, the
Republicans had their base in the native stock, Protestant communities, while the
Democrats had their deepest roots in the immigrant Catholic communities.

Ratification of the 14th Amendment gave citizenship to 4.6 million African-

American men and women (constituting about the same proportion of the
population as they do today).

Another non-European group to assume a place in the United States was the
Chinese. At first they were viewed positively, but then a virulent backlash set in.

Beginning in the 1880s, the character of European immigration changed, as

hundreds of thousands of people from southern and eastern Europe came to
America. Many Americans found them threatening also. Another reason for the
anti-immigrant feeling was the threat American workers saw from cheap labor.

A national literacy test was adopted in 1917 as a way of disenfranchising the

immigrants viewed as most threatening.

48
 In the 1920s, laws were passed decreasing the number of immigrants and
restricting them to mostly northern and western Europe. By 1930, the era of the
open door had effectively ended. By this time more than 35 million people had
left their homes to come to America.

B. A Nation of Immigrants Now

In 1965, Congress abandoned the national quotas system

favoring northern Europeans, which resulted in a rapid increase
in immigration from Latin America and the West Indies. In
addition, there was a significant influx of Asians. In the 1980s,
the absolute number of immigrants (about 9 million) was higher
than in any previous decade.

C. Immigration as a Contemporary Issue

Immigration again became an issue in the early 1990s. In 1994, California passed
an initiative denying state services to illegal immigrants and their children. There
are several economic reasons for why many Americans are concerned about
immigration today.

Unlike times past, immigrants today are not entering a rapidly expanding
economy. This makes American workers more nervous.

States and cities vary as to how much of the burdens or benefits accompanying
immigration they experience. The same can be said for the different levels of
government.

Due to the restrictions of the 1965 law, a higher proportion of immigrants today
are older. Thus, a higher proportion are not working (or paying taxes) but still in
need of government services.

In addition to these economic reasons, Americans also see immigration today as a

threat to the American political culture.

49
III. Philosophical Unity

The fundamental beliefs and values of Americans are usually dubbed

individualist, and the political culture is referred to as liberal. The word "liberal"
as used here signifies, contrary to current usages of the word, skepticism of
government (or what is called classical liberalism).

Classical liberalism, with its starting point the individual (instead of the state),
emphasized basic human rights, equality under the law, and limited government.
It provided the philosophical foundation for the American constitutional order.
(In contrast, some historians think the influence of civic republicanism on
America's founding deserves more attention.)

A. American Individualism

One strong belief shared by many Americans is that individuals are responsible
for their own welfare.

This belief is buttressed by two other beliefs: One, Americans are suspicious of
government power and dubious about government competence; two, Americans
believe that hard work and perseverance pay off. Even the poor tend to support
these beliefs.

B. The Tension Between Individualism and Equality

Most Americans do not regard economic and social inequality as justification for
government action.

The explanation of this seeming inconsistency is that American political culture

supports particular kinds of equality: equality before the law (including political
equality).

Americans do not insist on equality of condition, emphasizing instead equality of

opportunity. In essence, this means they believe in equal opportunities to become
unequal.

50
IV. Religion and American Individualism: Contradiction or Complement?

Americans are more religious than people in other developed democracies.

Although the institutions of church and state are constitutionally separated in the
United States, there is not now and never has been a political wall between
religion and politics.

What explains the strength and persistence of religion in America? Several

explanations have been advanced. First, there is the historical fact of the religious
roots of the original settlers. Second, there is a great diversity of religion in
America. Third, due to the lack of establishment, clergy must compete for
members and that means greater attention is paid to the needs of members.
Finally, could the liberal tradition, with its emphasis on the individual, actually
breed a desire for things religious?

V. Why a Liberal Political Culture?

Why hasn't the ethnic, racial, and religious diversity in American eradicated the
core beliefs and values of its political culture?

A. Traditional Explanations of American Individualism

It has been argued by some that individualism in America took root and survived
because of the lack of a feudal tradition in America. In addition, there was plenty
of land-making it easy for people to exercise their individualism. Others question
this explanation given the fact that the frontier was closed by 1890 and given the
great influx of immigrants (who lacked the core value of individualism).

The explanation may be political socialization. Newcomers and people born in

America are taught the core beliefs (consciously or unconsciously).

B. Newer Explanations

A recent explanation for the basic belief in individualism is that the governing
institutions in America (separation of powers and checks and balances for
example) often result in gridlock. This has been true since the founding, so
Americans have learned that you must rely on yourself rather than government to
get things done.

51
 Another explanation is that the kind of people (only about 1percent) who made
the decision to immigrate to America were predisposed to believe in
individualism. In other words, they did not become individualistic by living in
America, they came to America because they were individualistic.

IDEAS FOR LECTURES OR DISCUSSION

The following questions are taken from the Immigration and Naturalization
Service's examination which immigrants must pass before being nationalized U.S.
citizens. The test is a pool of 100 questions, with I.N.S. district offices given
discretion as to how many applicants must answer. The entire 100 questions were
published in the November 17, 1997, issue of The Washington Post (p. C3). The
answers appear on p. C4.

It might be a good idea to ask these questions during the first or second class
session and then tabulate the answers for discussion of this chapter. One subject
that could be debated is the appropriateness of the questions. In fact, according to
the Post article, I.N.S. officials know the test could be improved and invite
suggestions. Students could be asked what questions should appear on the test.

Here are one-third of the questions (along with answers) from the test. An
attempt has been made to include not just what might be considered the best
questions, but also some that represent what some might call trivial. Again, you
and your students can be the judge. [Question 21 is covered in the chapter
(students might have a different opinion). Also of special interest is the answer to
question 31.]

1. What color are the stars of our flag?

white

2. What do the stripes on the flag mean?

They represent the original 13 states.

3. What country did we fight during the Revolutionary War?

England

52
4. Who elects the president of the United States?

the electoral college

5. What do we call a change to the Constitution?

amendment

6. How many changes or amendments are there to the Constitution?

27

7. What is the legislative branch of our government?

Congress

8. What are the duties of Congress?

to make laws

9. How many representatives are there in Congress?

435

10. What is the executive branch of our government?

president, vice-president, Cabinet, and departments under the Cabinet members

11. What are the duties of the Supreme Court?

to interpret laws

12. What is the supreme law of the United States?

the Constitution

[Note: The Constitution (Article VI) states that the Constitution, laws passed by Congress
in pursuance thereof, and treaties are the supreme law of the land - the supremacy clause]

53
13. What is the Bill of Rights?

the first 10 amendments to the Constitution

14. Who becomes president of the United States if the president and the vice president
should die?

Speaker of the House of Representatives

15. Who said, "Give me liberty or give me death"?

Patrick Henry

16. What is the 49th state of the Union (United States)?

Alaska

17. How many terms can a president serve?

Two, per the 22nd amendment

18. According to the Constitution, a person must meet certain requirements in order to be
eligible to become president. Name one of these requirements.

S/hemust be a natural born citizen of the United States.; must be at least 35 years
old by the time he or she will serve and; must have lived in the United States for
at least 14 years.

The Supreme Court also ruled for the 2000 election that one doesn't even have to
be a registered voter to run for office.

19. Who selects the Supreme Court justices?

They are ominated by the president and confirmed by the Senate

20. Who was the main writer of the Declaration of Independence?

Thomas Jefferson

54
21. What is the basic belief of the Declaration of Independence?

that all men are created equal

22. Where does freedom of speech come from?

the Bill of Rights; the first amendment

23. What did the Emancipation Proclamation do?

freed many slaves

24. What were the 13 original states of the United States called?

colonies

25. Who has the power to declare war?

Congress

26. In what year was the Constitution written?

1787

27. Where does Congress meet?

in the capitol, in Washington, D.C, per the 20th amendment

28. Whose rights are guaranteed by the Constitution and the Bill of Rights?

everyone (citizens and noncitizens living in the United States).

29. What is the introduction to the Constitution called?

the Preamble

30. What is the name of the president's official home?

the White House

55
31. In what month is the new president inaugurated?

January, per the 20th amendment

32. How many times may a congressman be reelected?

At present, there is no limit at the federal level.

LIST OF TRANSPARENCIES

Each transparency listed is followed by the Text Figure (or Table) number, followed by
the text page.

T8 The Population of the United States Is Becoming Less European in Its Origins, 4.1,
110

56
CHAPTER FIVE

Public Opinion

OVERVIEW

Public opinion is a basic element of democracy. Citizens acquire their opinions from a
variety of sources. Accurately measuring public opinion can be very difficult. Many
measurement problems stem from how questions in polls are worded or framed. Another
problem is that many Americans are informed, or misinformed, or hold inconsistent
opinions on issues. Politicians who try to be guided by public opinion will find it is
difficult to do so. In spite of this, public policy often does follow public opinion.

LEARNING OBJECTIVES

1. Explain how public opinion can change fairly quickly, using examples such as former
President George Bush’s popularity after the Gulf War and his subsequent drop in the
polls that led to his reelection defeat in 1992.

2. Delineate and describe the sources of public opinion.

3. Explain the characteristics of public opinion and why public opinion is often
uninformed, unconnected, and inconsistent.

4. Discuss the relationship between public policy and public opinion, as illustrated by the
case studies dealing with health care and abortion. Be sure to explain why public opinion
can change and why it is so difficult to know the true nature of public opinion.

5. Speculate as to the relative importance of public opinion in the American political

system.

6. Explain how and why public policy follows public opinion.

57
KEY TERMS

closed-ended question mass public

exit poll open-ended question
focus group political elite
framing public opinion
ideology sampling error
information cost socialization
issue public survey research

OUTLINE

I. What is Public Opinion?

Public opinion is an important element in all kinds of democracy. It influences

politicians either actively (as in popular democracies) or passively (as in
responsible democracies).

II. Sources of Public Opinion

A. Socialization

Socialization is the ways in which people learn beliefs and values. Sometimes the
learning takes place as a result of explicit teaching, and sometimes it results from
the less conscious observation or imitation of others.

B. Interests

Some of the opinions people hold are based on their personal interests or the
interests of others like them.

Different life experiences give rise to different views on issues that become
matters of public-policy debate.

C. Education

One aspect of education, higher education, results in a somewhat more tolerant

outlook.

58
 D. The Media

Sometimes the media shape’s public opinion and sometimes they do not. One
study found that television and newspaper exposure during a presidential
campaign had only marginal effects on preexisting views.

III. Measuring Public Opinion

With the advent of modern survey research in the 1930s, public

opinion became a much more powerful political force.

A. Survey Research

The Gallup Organization is one of the recognized polling firms.

Survey research is the technical term for the scientific design
and administration of public opinion polls. If selected
randomly, a poll of 1,500 people can give accurate results (even
of the entire nation). A sample of this size would produce
results within plus or minus 3 percentage points 95 percent of
the time. But the key is that there be no selection bias in the
selection of the sample.

B. Alternatives to Survey Research

Increasingly, politicians are relying on focus groups to

determine how the public will respond to ideas and proposals.
Other methods of gauging public opinion are mail surveys, call-
in surveys, and Internet polls. All of these are less reliable than
scientific polls.

IV. Mismeasuring Public Opinion

A unique problem with measuring public opinion is that

opinions are subjective beliefs and individuals may not
have given much consideration to their beliefs prior to
expressing them to a pollster.

59
 A. The Holocaust Poll Fiasco

An example of how wording the questions of a poll can affect

poll results is the poll conducted on what Americans think about
the Holocaust.

B. The Importance of Wording

The lesson of the Holocaust poll is that while sample size may
be large enough and there may be no selection bias, a poll may
still produce faulty results due to other factors (like the wording
of questions).

V. Characteristics of Public Opinion

Public opinion is not an objective quantity like body weight or temperature that
can be measured with a simple physical instrument.

A. Public Opinion Often Is Uninformed

On many issues, people have little or no information. Most people most of the
time pay little attention to politics. Far more Americans watch sitcoms like
“Seinfeld” than watch Ted Koppel's “Nightline.”

Most people have little time for politics. The effort required to stay informed
competes with family life, work, recreation and relaxation. Those who do
criticize citizens for the lack of attention they pay to politics are those that have
the luxury to stay informed with minimal effort.

Gathering, processing, and storing information is costly. For most Americans,

bearing such information costs will bring them little in the way of corresponding
benefits. Those with a better education or certain types of occupations find the
costs are not as great and hence are more informed than others.

The same with benefits. When it benefits a person to be informed about a

particular issue, the level of information is greater.

Some people, however, are informed not because of any benefit but just because
they either think it is part of being a good citizen to be informed or find politics or
political issues interesting.

60
B. Public Opinion Is Not Ideological

Even when people have reasonably firm views on issues, those views often are
surprisingly unconnected to each other. This is another way of saying that the
American people are not very ideological.

Political elites, on the other hand, tend to have well-structured ideologies.

In a study done in the 1950s, only 3 to 16 percent of average Americans could be

accurately labeled as thinking ideologically. There was some increase in
ideological thinking in the 1960s, but it is still much below the level of elites.
Still, Americans should not be criticized for their non-ideological thinking. After
all, the issues making up liberal or conservative thinking in America are often not
logically connected. Furthermore, the meaning of the words liberal and
conservative change over time.

Perhaps the non-ideological views of most Americans should be taken as

evidence for pragmatic, commonsensical thinking, while the ideological views of
elites should be viewed as evidence of rigid, emotional commitment.

Regardless of one's views on the desirability of ideological thinking, one fact

stands out: The non-ideological nature of public opinion means that elites often
read more into opinion polls of average voters.

C. Public Opinion Often Is Inconsistent

It is not uncommon for poll data to reveal An inconsistency in the public's

thinking. For example, the 1994 polls showed Americans wanted to balance the
budget but not cut government programs.

In recent decades, the American people have never delivered a clear mandate
either for the Republicans to cut and retrench or for the Democrats to tax and
expand.

One result has been divided government (one party controlling

the presidency, the other Congress) with its result of gridlock.
Both seem to reflect the inconsistency in public thinking.

61
 Several reasons explain why Americans hold such inconsistent opinions. Often,
such thinking would appear to be due to lack of information or misinformation.

Another explanation would be that Americans think pragmatically. They value

free speech, but when faced with particular examples, they see a need for
restricting it.

VI. Governing by Public Opinion

The uncertainty surrounding the true state of public opinion makes government by
public opinion poll immensely difficult, even if that were what everyone wanted.

A. Public Policy and Public Opinion: The 1994 Health Care Debacle

In 1992, it seemed that national health insurance was an idea whose time had
come.

By 1994, Republicans had won control of Congress for the first time in 40 years
and national health insurance was dead. What happened?

Public opinion had not really changed; rather, many people in and out of politics
misinterpreted what the public wanted or what it would accept.

B. Public Policy and Public Opinion: Abortion

Unlike their views on national health care, Americans have stable views about
abortion. Large majorities support abortion (1) to save the life of the mother, (2)
when pregnancy results from rape and (3) when there is a strong chance of a
serious defect in the baby.

As is often the case, the apparent inconsistency in the public's attitude toward
abortion could be attributed to different wording of the questions used to measure
it. Often, poll results are a matter of how a question is framed.

Unlike the view of elites on both sides of the abortion issue, average Americans
reject taking an extreme position on abortion.

62
C. Following Public Opinion

Given the problems of measuring public opinion and the low levels of
information, or even misinformation, the average American has about many
issues, public officials who try to follow public opinion may find it difficult.

VII. How Important Should Public Opinion Be?

Given all the problems with measuring public opinion and the low levels of
information (or high levels of misinformation) that Americans have about many
issues, this should not lead one to conclude that public opinion shouldn't matter.
The public can, and does, make informed judgments. Researchers have shown
that viewed collectively, the public is reasonably rational.

Also, American public policy follows public opinion. For those advocating a
responsible democracy (as designed by the Framers), this is not comforting.

IDEAS FOR LECTURES OR DISCUSSION

1. Polling and Margin of Error

Although the authors of the text mention sampling error, there is not much
discussion about it. Since students will constantly be exposed to polls, a good
topic to flesh out in this chapter is margin of error.

Margin of error is a statistical device that provides a numerical calculations for

how close the results of a poll are to the truth. One hears a lot about scientific
sampling. A margin of error should never be applied to any poll except a
scientific one.

63
A. Scientific Polling:

What makes a poll scientific? Almost every aspect of taking a poll involves
matters that can be done scientifically or not. For example, this chapter highlights
the science (or, actually, the lack of) of writing good questions so that the truth is
revealed. A more fundamental aspect of polling in terms of whether or not it is
scientific is how a sample is selected.

From this point of view, a poll is scientific if every person in the population is
given an equal chance of being selected in the sample. By population, pollsters
do not mean all people in a country, state, etc., but that group of people about
whom the pollster is trying to get information. Thus, a population could be the
student body at a university.

B. Sample Size and Margin of Error:

Social scientists, relying on statistical models, have developed a model for

determining when the results of a poll is believable (true). The model states that
if the results from a poll would be the same in 95 cases out of 100 then the results
should be considered "true." Most pollsters, relying in this standard, use sample
sizes of about 1,200 people. This means that their margin of error is about plus or
minus three percentage points.

So, when newspapers report that 55% of Americans approve of how Clinton is
handling his job as president, and the poll has a margin of error of plus or minus
three, this means that most Americans approve of the Clinton presidency. One
could be confident that Clinton's approval rating falls between a high of 58% and
a low of 52%. Either way, however, most Americans approve of the president.

C. Non-scientific Polling and Bias:

A classic case of a poll lacking a scientific sample was the Literary Digest poll
conducted during the 1936 presidential election. The Digest was a magazine that
polled over 2 million people (compared to Gallup's typical 1,200) and proceeded
to predict that Alf Landon, the Republican nominee for President, would defeat
Franklin Roosevelt, the Democratic nominee. Roosevelt defeated Landon in a
landslide. Although the Digest's sample size was one of the largest ever, it had
erred in the selection of the sample. Because it polled from lists of people who
had automobiles and phones, it got a biased sample of mostly well-to-do
Republicans.

64
 Several caveats need to be added. First, in five cases out of 100, the results could
be incorrect. That is unlikely, but possible. Next, the results only apply to when
the poll was taken. Public opinion is not always stable. On some issues (like
presidential approval), it changes frequently and in dramatic fashion.

Polling has come a long way since the Literary Digest debacle. Not only have
polling organizations fine tuned the methods of polling, more information is given
to voters about how polls were conducted. Twenty-five years ago if poll results
were given on television or in a newspaper, there would have been no mention of
the poll's margin of error. Now, such reporting is routine. Still, there is one
aspect of polling that gets ignored.

D. Sub-groups and Polling:

Often poll data includes not just the overall results of the poll (the number
approving or disapproving of the president) but will break the data into
subgroups. For example, it is common, since the Reagan presidency, to report on
the gender gap: how men and women differ in their presidential approval ratings.

This is when interpreting a poll gets tricky. Suppose NBC reports the following
poll results (of the typical sample size of 1,200 with a plus or minus 3percent
margin of error).

65
RATING PRESIDENT CLINTON

Men Women

Favorable 48 52

Unfavorable 52 48

Is it proper for NBC to report that there is a genuine gender gap?

No.

At first glance, of course it looks like men and women do differ. But, one has to
apply the margin of error to see if the findings are within the rage of being
"probably" correct. The tendency is to assume since NBC reported that the
margin of error for the poll was 3 percentage points, then the data reported here is
within that. But, this is data about two sub-groups, hence the margin of error is
different.

If we assume that there were approximately 600 men and 600 women, (caution:
we don't know for sure unless NBC tells us) in the sample, then the margin of
error for a group of 600 is 4 percentage points. Applying that margin of error to
the data reported on gender differences, it is too close to call to make any
observations about gender differences and presidential approval ratings of
Clinton!

Notice, the margin of error only increased 1 percent for the subgroup in this
example. Had the example been differences reported by race, some of the racial
groups would be so small, that the margin of error would be extremely high.
Unfortunately, this problem is seldom highlighted when poll results are reported.

2. Family and Political Socialization

This chapter did not discuss to a great extent the important role of family in
political socialization. A good exercise would be to ask students to conduct a poll
on this subject.

66
 At each step along the way in this project, you can supply the students with
material, or have them (perhaps in groups) develop their own materials (which
could be submitted for a grade).

QUESTIONNAIRE:

First, you need a questionnaire. You will want questions like the following:

"Generally speaking, do you think of yourself as a Democrat, Republican, Independent,

or what?"

"Generally speaking, does your father think of himself as a Democrat, Republican,

Independent, or what?"

"Generally speaking, does your mother think of herself as a Democrat, Republican,

Independent or what?"

You may, in addition, want the students to add questions or note other things when
conducting the poll. Gender would be a natural one since you may hypothesize that
females, will associate more with their mothers and males with their fathers.

SAMPLE:

Next, you will need to select a sample. This can be the most involved portion of the
project. If you don't want to emphasize how a sample should be selected, you may just
tell each student to interview, any way they can, their share of students. (If you have a
class of 40, then each student could interview 30 students to get a total of 1,200.) If you
want to emphasize sample selection, you could ask students to devise a means of random
selection of 1,200 students (from the campus directory or registrar's enrollment lists).

INTERVIEWS:

Personal interviewing is (when done properly) the most accurate way to get polling data.
Most pollsters today use telephone interviews. You decide.

67
COMPILING THE DATA:

Some students (perhaps those who did not want to do the interviewing) should be
assigned the task (assuming you don't want to do it yourself) of compiling the data. This
usually takes close supervision as any misstep can result in erroneous reporting. The idea
is to get the information in Tables so that the class (again, as a whole or in groups) can
analyze it.

RESULTS:

Family is the most important institution of political socialization. Children learn a

particular political view from their parents. More particularly, they typically acquire their
party affiliation from their parents. This is important because when individuals do not
know how to interpret a political event (or, even, for whom to vote), they get their cues
from their party.

Studies by Jennings and Niemi indicate that 59 percent of young people identified with
the same party as their parents.

LIST OF TRANSPARENCIES:

Each transparency listed is followed by the Text Figure (or Table) number, followed by
the text page.

T9 Americans Are Not Very Knowledgeable About the Specifics of American

Government, 5.5, 144

68
CHAPTER SIX
Individual Participation

OVERVIEW

In spite of the importance of political participation in a democracy, most American

women and men don't bother to vote (with turnout being less than most other
democracies). Although the difference with other countries is somewhat easy to explain,
the decline in the United States in recent years is more difficult to interpret. Although
those who tend to vote are better educated and wealthier than those not voting, it is not
clear that American politics would look much different if more people voted.

LEARNING OBJECTIVES

1. State what typical turnout is for presidential, congressional, state and local elections in
America. Also, explain why turnout is lower in America when compared to other
democracies.

2. Review those historical factors that have accounted for variation in American voter
turnout in both the nineteenth and twentieth centuries.

3. Summarize those key pieces of legislation and constitutional amendments that have
expanded suffrage throughout American history.

4. Specify those factors that initiated a decline in turnout from 1960 to 1992.

5. Explain in detail how individual motivations and outside mobilization affect voting
turnout.

6. Summarize and explain the roles of personal benefits, declining mobilization, and
declining social connectedness in determining voter turnout.

7. Identify the personal characteristics, attitudes, and background of the voter and
nonvoter.

8. Summarize and critically evaluate the three arguments that assert low turnout is a
problem and the three arguments that assert low turnout is not a problem.

69
KEY TERMS

compositional effect psychic benefits of voting

eligible voting-age population registered voters
franchise social connectedness
individual motivations for voting social issues
mobilization suffrage
voting-age population official turnout

OUTLINE

I. A Brief History of the Franchise in the United States

In 1824, six of the 24 states had not provided for popular election of presidential
electors. Having lost the presidency in 1824, Andrew Jackson took his election to
the people. The result was that by the 1828 presidential election only two states
still did not elect presidential electors and three times as many men voted for
electors as had voted in 1824.

Just prior to the Civil War, voting was restricted in most states to white males
who owned property. By 1860, all adult white male citizens had the franchise.
The 15th Amendment (1870) extended the franchise to black males. The 19th
(1920) gave women the right to vote in all states.

Another extension of voting came with ratification of the 23rd Amendment in

1961. It gave those residing in Washington, D.C. a vote for president and vice
president. The 26th Amendment (1971) then lowered the voting age to 18.

The evolution of voting rights in America reflects the decision made at the
Constitutional Convention to not specify voting requirements, but to leave them
for each state to establish.

Today, every law-abiding, mentally competent citizen over the age of 18 has the
right to vote in the United States.

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II. Why People Participate: Costs and Benefits

Numerous factors influence whether a citizen votes.

One broad factor has been called individual motivations. This means that people
weigh the costs (economic, psychological, etc.) and benefits (mostly
psychological today) of voting.

If you vote, you bear the costs of voting no matter what the outcome, but the odds
of your vote making the difference in national elections is quite slim. Thus,
unless a voter has a strong sense of duty, or takes considerable satisfaction in
expressing a preference, the personal benefits of voting generally do not exceed
the costs.

Another factor explaining voting is mobilization. People are encouraged or

mobilized by others who have personal incentives to turnout the vote.

III. International Comparisons of Voter Turnout

What explains why Americans vote less than citizens in other democracies?

One explanation is based on how turnout is calculated. Official turnout in the

United States is calculated by dividing the number of people in the United States
of voting age into the number of people voting for president. Other democracies
are more exact in the calculating of turnout. This difference in calculation makes
about a 5 percentage point difference.

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 A. Personal Costs and Benefits: Registration

More than 30 percent of the American voting-age population is unregistered.

In most of the world, registration is automatic. In the United States it is entirely

the responsibility of the individual. The "motor-voter" law (1993) was passed in
an attempt to increase voter registration (and hence, voting). Statistics suggest
that if every state used the most liberal registration procedures, national turnout
would be about 9 percent higher.

B. Personal Costs and Benefits: Compulsion

Voting is "compulsory" in many countries. Americans consider voting a right

they are free to exercise or not.

C. Other Personal Costs and Benefits

Unlike other countries, elections in America are usually on a workday (Tuesday).

In addition, Americans are asked to vote much more frequently. Even the risk of
being called for jury duty (using voter registration lists) is enough to keep some
people from registering to vote.

D. Mobilization and Turnout

American voters also have less help (than citizens in other democracies) in
overcoming the costs of voting. Political parties have declined as mobilizing
agents. Organizations are plentiful in the United States but they are not as deeply
rooted here as in other countries.

E. Other Forms of Participation

Although Americans vote at lower levels than citizens in other democracies, they
are more likely to work in campaigns, contribute money, and attend political meetings.

IV. Why Has American Turnout Declined?

Turnout is not only lower when compared with other democracies, it has fallen in
the United States during the past generation.

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 Research has shown that the decline was not due to falling trust in government.
More puzzling is that while turnout has declined; several factors associated with
increasing turnout have gone up. Legal reforms making it easier to vote and
socioeconomic changes.

A. Lower Personal Benefits

Part of the explanation is the fact that Americans don't believe that government is
as responsive as in times past. Thus, voters do not see as much riding on their
decisions as they once did.

Another explanation is that elections have become less competitive. When

elections aren't close, voters do not see as much importance in voting.

B. Declining Mobilization

The change in style from labor-intensive to media-concentrated campaigning may

have indirectly contributed to declining turnout.

C. Declining Social Connectedness

Turnout may be lower because of what social scientists call a compositional

effect. Turnout rates of younger Americans were low when they became voters
and remain low still.

Finally, another researcher has suggested that turnout is lower because of a

lowering in social connectedness. Interestingly, although turnout is not related to
trust in government, it is significantly related to trust in people. This explanation
treats voting not as a political act but as a social act.

V. Who Votes and Who Doesn't

Turnout rates differ considerably across social and economic groups.

Highly educated people vote more than those with little formal education. The
wealthy are far more likely to vote than the poor. The older a person gets, the
greater the tendency to vote (till very old age).

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VI. Is Low Turnout a Problem?

A. Three Arguments for Why Low Turnout Is Not a Problem

1. Low turnout indicates contentment, not estrangement. Therefore, it indicates a

healthy polity and contributes to political stability.

2. If turnout were encouraged, those less informed, about less interested in, and
less concerned about politics would be voting.

3. Voting is a sham; encouraging more citizens to vote is asking more to

participate in the sham.

B. Three Arguments for Why Low Turnout Is a Problem

1. Low turnout produces election results that are unrepresentative (voters are more
Republican and more conservative) of the entire electorate, resulting, ultimately, in
biased public policy.

Research suggests that this argument is overstated. Typically, the preferences of

nonvoters vary little with those of voters.

2. Low turnout reflects a "phony" politics.

Nonvoters don't vote because mainstream politicians (backed by the two major
parties) do not address the real issues that concern nonvoters (like jobs, health care,
housing, the income distribution, and education).

3. Low turnout discourages individual development.

Only by participating in politics can a person develop fully as a citizen and

human.

VI. Does Turnout Matter?

Good-intentioned and well-informed people disagree and offer persuasive

arguments for both sides of the issue. There is some validity in each argument.
The only argument that is false is that elections don't matter.

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IDEAS FOR LECTURES OR DISCUSSION

1. Here are data released by the Federal Election Commission on the 1996 presidential
election. This could be used as a handout for class discussion. There are several things
to look for here. One would be how the actual data fits with the discussion about turnout
in the chapter. How many assertions made in the chapter are confirmed by the actual
data? How many assertions are not confirmed by the data? Also, what seems to be the
relationship between the number of people registered in a state and turnout (something
discussed a great deal in the chapter)?

[Note: The Web site for this data is www.fec.gov].

% VAP % VAP
State Registered TURNOUT
================== ========== =======
Alabama 76.7 47.6
Alaska 97.6 56.8
Arizona 71.3 44.6
Arkansas 73.1 47.2
California 68.6 43.9
Colorado 81.9 52.7
Connecticut 75.8 56.1
Delaware 76.9 49.4
District of Columbia 85.6 44.0
Florida 73.1 48.0
Georgia 70.3 42.4
Hawaii 61.2 40.4
Idaho 81.6 57.0
Illinois 76.1 49.2
Indiana 79.7 48.8
Iowa 83.0 57.7
Kansas 75.7 56.0
Kentucky 81.8 47.4
Louisiana 81.7 56.9
Maine 05.9 71.9
Maryland 67.7 46.6

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 % VAP % VAP
State Registered TURNOUT
================== ========== =======
Massachusetts 74.4 54.9
Michigan 94.4 54.4
Minnesota 89.6 64.0
Mississippi 87.2 45.4
Missouri 83.6 54.0
Montana 90.0 62.0
Nebraska 83.8 55.9
Nevada 64.2 38.3
New Hampshire 86.6 57.3
New Jersey 71.6 50.9
New Mexico 69.5 45.4
New York 74.9 47.4
North Carolina 78.2 45.5
North Dakota N/A 55.9
Ohio 82.4 54.3
Oklahoma 81.5 49.7
Oregon 81.3 57.1
Pennsylvania 74.0 49.0
Rhode Island 80.2 51.9
South Carolina 65.4 41.5
South Dakota 85.9 60.5
Tennessee 70.6 46.9
Texas 77.5 41.2
Utah 78.8 49.9
Vermont 86.5 58.0
Virginia 65.3 47.5
Washington 74.8 54.7
West Virginia 68.5 44.9
Wisconsin N/A 57.4
Wyoming 67.6 59.4
UNITED STATES 74.4 49.0
=================== ========== =======
1996 VAP refers to the total Voting Age Population of the state as reported by the Bureau
of Census. Please note that the VAP includes all persons over the age of 18, including a
significant number of people not able to vote in U.S. elections.

76
N/A means Not Applicable. North Dakota has no voter registration and Wisconsin has
election-day registration at the polls.

2. Here is a list of significant events in voting in U.S. history:

1787 - Under the Constitution, the only national officials elected by the voters
were members of the House of Representatives. The Constitution did not specify
qualifications for voting, leaving each state to set them. The one stipulation was
"...the Electors [voters] in each State shall have the Qualifications requisite for
Electors of the most numerous Branch of the State Legislature," (Article I,
Section 2).

1789 - In the first presidential election, five state legislatures selected the electors
and four states allowed the people to elect the electors. (Massachusetts used
popular election and appointment by the governor; New York voted too late for
its vote to count; and two states--North Carolina and Rhode Island--had not
ratified the Constitution yet.)

1800 – The House of Representatives elected Thomas Jefferson president when

he and Aaron Burr tied in electoral votes.

1804 - The 12th Amendment was ratified. It was prompted by the tie between
presidential candidates Jefferson and Burr in 1800. Among other things, the
Amendment stipulate that electors must specify when casting their two votes
which one is for president and which is for vice president.

1824 – The House of Representatives elected John Q. Adams president when no

candidate received the necessary majority. (Andrew Jackson received a plurality
of the electoral and popular votes.)

1860 – This was the last year a state (of the original 13) allowed the state
legislature to elect presidential electors.

1867 - Congress created a special commission (Hayes-Tilden Commission) to

decide how several disputed electoral votes should be cast. The commission
(composed of eight Republicans and seven Democrats) granted all the disputed
electoral votes to Hayes, making him president.

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 1870 – The 15th Amendment was ratified extending the right to vote to blacks.

1876 – This was the last year any state allowed the state legislature to elect
presidential electors.

1888 - For the only time in American history, due solely to the mechanics of the
electoral college, the presidential candidate receiving the most popular votes
nationwide (Grover Cleveland - D) lost to the electoral vote winner (Benjamin
Harrison - R).

3. Prospective vs. Retrospective Voting

This chapter points out the lack of political information the typical voter
possesses. It then spends a great deal of time going over whether or not
increasing turnout would be a good thing or not.

What it does not discuss is the difference between prospective and retrospective
voting. The difference in these could add an additional perspective to the turnout
issue.

Prospective Voting:

Prospective voting used to be called the rational voter model of voting. It

assumes that the typical voter is interested in and knowledgeable about politics.
Here is how the decision for whom to vote is supposed to work in a presidential
election.

Elections- During the campaign, voters become informed about the different
candidates. They would do this because of their interest in the outcome of the
election. To become informed, voters read newspapers, magazines, watch
television programs covering the campaigns, and talk to family, friends and
coworkers about the candidates and the issues dominating the campaign.

At some point, each voter determines which candidate's discussion of what they
will do when elected is most agreeable to the voter's own wishes. Then the voter
knows for whom to vote.

Once elected, if the president does not do what was promised during the
campaign, the voter looks for an alternative candidate to support in the next
election.

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If campaigns worked this way, the exercise of voting would be quite rational. But
elections for president in the United States do not work this way.

The reason campaigns don't work this way is that most Americans are not that
interested in politics. Since they aren’t interested, logically they don't take the
time to study candidates during the campaigns- as portrayed in the prospective (or
rational voter) model. So, not being interested, they lack the knowledge to vote
prospectively. Does this mean American voters are irrational? In contrast, what
is better: an uneducated vote or no vote at all?

Retrospective Voting:

While Americans don't vote prospectively, there is some rationality to their

voting. The way they vote is somewhat rational, but it is at the same time
compatible with the level of political interest and knowledge of the average voter.

As alluded to in this chapter, one thing Americans can rely on for voting (because
it does not take much effort to do so) is how they feel about the past president (or
past four year term).

In 1980, when Ronald Reagan, at the end of his presidential debate with President
Jimmy Carter, asked, "Are you better off than four years ago," he was appealing
to the voter's ability and tendency to engage in retrospective voting.

Evidence indicates that this is exactly what voters did in 1980. In spite of the fact
that the election was often referred to as the Reagan Revolution, voters were not
endorsing Reagan's "vision" of the future. For every voter that voted for Reagan
because they believed in his conservative philosophy, three voters voted for him
because they wanted a change (i.e., voters no longer wanted Carter as president).
This is a perfect example of retrospective voting.

Voters are capable of reflecting on the past four years and deciding (rationally) if
they did or didn't like them (which they didn't when Carter ran for reelection in
1980). If they didn’t like the past four years, they vote for the other major
candidate (Reagan in 1980). If they liked the past four years, they reelect the
president (as they did in 1984).

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LIST OF TRANSPARENCIES

Each transparency listed is followed by the Text Figure (or Table) number, followed by
the text page.

T10 The Right to Vote in the United States Has Been Steadily Expanded, 6.1, 173

T11 Turnout in America Has Declined Since 1960, 6.4, 186

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CHAPTER SEVEN
Interest Group Participation in American Democracy

OVERVIEW

Most Americans participate indirectly in politics by joining groups that attempt to

influence government. Successful groups have found ways to overcome the free-rider
problem--the tendency of people to enjoy a group's benefits without contributing in any
way to the group.

Group characteristics and their situations lead them to adopt a variety of political
strategies: lobbying (traditional and grassroots), electioneering, political protests, and
influencing the courts.

It is difficult to say how effective interest groups are. For every success story, there is a
story of group ineffectiveness. Some are concerned about the effectiveness of groups:
they do not represent all interests, the common good gets little attention, and they help
create a politics of extremes.

LEARNING OBJECTIVES

1. Explain how the Home School Legal Defense Association forced Congress to
eliminate the Miller Amendment, which would have required teacher certification in
specific subject areas.

2. Review the historical evolution of interest groups in America, noting which social,
economic, and political forces were prominent in group formation and proliferation.

3. Delineate the nature and variety of interest groups.

4. Explain how interest groups are both formed and maintained. Be sure to include the
types of incentives that people have as motives for joining an interest group.

5. Discuss the implications of the free-rider problem for interest groups and the methods
by which groups try to overcome this problem.

6. Explain and define lobbying, grassroots lobbying, political action committees (PACs)
direct mail, direct action, amicus curiae, subgovernments, and issue networks.
81
7. Review how interest groups are evaluated. Be sure to explain pluralism and why it is
out of fashion today.

KEY TERMS

amicus curiae lobbyist

corporatist pluralism
direct action political action committee
direct mail (PAC)
fiduciary political entrepreneur
free rider problem private goods
grassroots lobbying public goods
interest group selective benefits
issue network social movement
lobbying subgovernment

OUTLINE

I. Interest Groups in the United States

Large majorities of Americans participate indirectly in politics by joining or

supporting interest groups. More than 75 percent belong to at least on group. On
average, each belongs to two groups.

A. Growth and Development of Groups

Americans have a long-standing reputation for forming groups. Perhaps James

Madison was correct when he wrote in Federalist 10 that the causes of factions
(groups of individuals with their own interests) were "sown in the nature of man."

Group formation has occurred in waves. Before the Civil War, there were few
national organizations. The first two decades following the Civil War saw the
birth of national agricultural associations and trade unions.

Another wave of group organization occurred during the Progressive Era (c. 1890
to 1917). Most, but not all, of the groups in this wave had an economic basis.

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 The 1960-1980 wave of group formation is the largest and most heterogeneous.
Thousands of economic groups formed. Numerous nonprofit groups formed as
well.

Innumerable shared interest groups have formed in recent

decades. These include liberal, conservative, citizens,
environmental, consumer and watchdog groups.

B. The Nature and Variety of Interest Groups

One researcher has shown that groups vary a great deal as to level of formal
organization.

Also, some are membership groups composed of numerous private individuals

who make voluntary contributions. Others are associations consisting of
corporate or institutional representatives who pay regular dues.

One researcher estimates that almost 80 percent of interest groups represent

professional or occupational constituencies (about half representing profit-sector
and half nonprofit). The other 20 percent of American interest groups reflect the
activities of citizens with particular interests, including those spawned by what are
called social movements.

II. Forming and Maintaining Interest Groups

In spite of the fact that the United States is a nation of joiners, millions of people
do not join or support associations whose interests they share. Who are the
joiners?

Professor James Q. Wilson has identified three incentives: (1) solidarity, (2)
material, and (3) purposive. People join groups when there are incentives to do
so. Some people join for social reasons. Some join because membership confers
tangible benefits. Some join to advance a group's social and political goals.

A. The Free-Rider Problem

Groups relying on purposive and material incentives face the free-rider problem:
Many people who share a group’s goals do not join or contribute but share in the
benefits of the group's efforts.

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 The logic of the free rider is that his or her contribution (money or time) will not
have much (if any) affect on the group's success and other group members will
press on without one's contribution anyway. Thus, why contribute?

The free-rider problem is most prominent in large groups and those groups that
have goals are somewhat remote from the members' everyday lives (the difference
between what has been called public goods and private goods).

Only groups whose membership is based on social incentives escape the free rider
problem. The implication for democracy is that small groups organized for
narrow purposes have an organizational advantage. Such groups are called special
interest groups as contrasted with public interest groups.

B. Overcoming the Free-Rider Problem

1. Coercion

One way to overcome the free-rider problem is to make those who benefit from a
group's efforts to contribute to the group. Thus, labor unions rely on closed shops.

A milder form of coercion is to get government recognition for your group and its
members (such as government certification of certain occupations).

Coercion appears to be a declining means of overcoming the free rider problem.

2. Social Movements

Another way in which the free-rider problem is overcome is through a social

movement. These have occurred throughout U.S. history. When they occur,
people are less likely to think solely of themselves and think more of what is good
for the society. When this happens, free-riding thinking breaks down.

It is difficult, however, to sustain social movements for a long period of time

(unless the movement finds a way to institutionalize itself).

3. Selective Benefits

Some groups discourage free riders by providing active group members with
tangible benefits.

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 4. Patrons and Political Entrepreneurs

A political entrepreneur is an individual or a small number of individuals who

takes the lead in setting up and operating the group. The reason for this is the
economic interests of the individual (or the small group of individuals). Others
are driven by a cause. Even government has contributed to the formation of
groups (through regulations and the need to implement them).

II. How Interest Groups Influence Government

A. Lobbying

Lobbying is the attempt of group representatives to personally influence the

decisions of public officials. People who engage in lobbying are called lobbyists.

The term lobbyist has negative connotations. Actually, most lobbyists operate
within the law. The primary task performed by lobbyists is to provide
governmental decision-makers with accurate information.

B. Grassroots Lobbying

Unlike lobbying, which takes a direct approach, grassroots lobbying seeks to

influence the governmental decision-maker indirectly. Thus, the attempt might be
to influence voters who would then seek to influence their government officials.

Grassroots lobbying is more prevalent today than in the past. The reasons are (1)
the decentralization of Congress, (2) the openness of government is today, and (3)
technological advances.

C. Electioneering and PACs

Another way to influence government is by working in campaigns to get

particular people elected to office. Electioneering is probably the fastest growing
group tactic, and a principal vehicle of this tactic is the political action committee
(PAC).

PACs are specialized organizations that raise and spend campaign funds. The
have enjoyed explosive growth in the past few decades. Far more of them
represent business and commercial interests than represent labor or citizen
interests.

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 There is widespread public dissatisfaction with the role of PACs in campaign
finance. While the media often portrays them as corrupt, most PAC contributions
are small and most research indicates there is no significant relationship between
PAC contributions by politician’s votes.

D. Persuading the Public

Some groups seek to influence the public even when no specific legislation or
regulation is at issue. Their goal is to build general support for the group and its
interests so that it will be more successful in the long run.

One communications technique that is a product of modern electronic

communications is direct mail.

E. Direct Action

American history is full of examples. Of direct action taken by groups, one of the
earliest being the Revolution. Forms of direct action are often used by social
movements. The media (particularly TV) pay a lot of attention to such acts.

F. Litigation

Some groups seek to influence policy by selecting cases to litigate. They also
stage demonstrations in front of courthouses, generate letters and telegrams to
judges, and file amicus curiae briefs.

G. Why Groups Use Particular Tactics

1. Group Characteristics

Size composition, wealth, organizational structure, and other factors affect the
activities in which groups engage; each group allocates its resources in the way
that it considers most efficient.

2. Situational Characteristics

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 Various situational characteristics--party control of Congress and the presidency,
the economic situation, the mood of the country, what your group seeks to
achieve--interact with characteristics of interest groups to determine what mix of
strategies is adopted.

III. How Influential Are Interest Groups?

The answers to this question are varied. Some believe interest groups dominate
American politics. Scholars usually disagree noting that one group can cancel out
the affects of another group. Also, subgovernments do not seem as powerful
today.

A. Subgovernments

Scholars coined the word subgovernment for the interaction between three
groups: a congressional committee, an executive agency, and an interest group.
One of these actors offers something the other two desire. The strength of their
relationship is summed up in the descriptive phrase "iron triangle."

Subgovernments are not as important today. Congressional committees are not as

strong. There are many more groups to counteract each other. Finally, the media
are more interested in investigating stories concerning such relationships.

B. Issue Networks

Many scholars argue that subgovernments have been replaced by networks:

bigger, broader, and much looser connections of interest groups, politicians,
bureaucrats, and policy experts. They are much more open than subgovernments
and much less stable in their composition.

But the importance of interest groups remains as divided as ever.

IV. Interest Groups and Democratic Politics

Political scientists generally have not held interest groups in as low regard as
ordinary citizens. Some used the word pluralism in a positive way to describe the
role, interaction and importance of group activity in American government.
Under pluralism, change is incremental and moderate, the result of competing
groups that are representative of Americans.

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 Pluralism is out of fashion today. For one thing, critics point out that not all
interests are equally represented by groups. For another, it is argued that the
interests of the nation are not the sum of the interests of its parts. For another,
group processes reinforce extremism and undercut moderation. (Leaders of
interest groups, acting as fiduciaries, tend to take extreme positions.)

Although James Madison is often viewed as an early supporter of pluralism

(Federalist 10), for several reasons he would probably have second thoughts
today.

IDEAS FOR LECTURES OR DISCUSSION

1. What makes an interest group successful?

There is no one thing that makes one political interest group more successful than
another. Here is a list of factors, each of which, all things being equal, make a
group more successful than others. If a group has several success traits, the
probability that it will be more successful (again, all other things being equal)
goes up.

A. Access - This refers basically to "who do you know?" If the goal of an interest
group is to affect policy-making, then access to the policymaker is critical. Hence,
those groups with access tend to be more successful.

B. Information - As stated in this chapter, the number- one commodity that interest
groups can have is reliable information. In fact, groups that have demonstrated they
have such data can more easily gain access.

C. Leadership Skills and/or Prestige - Some groups (the American Medical

Association, for example) have greater prestige than others. Physicians are among the
most respected professionals in America. Likewise, some groups have charismatic
leaders (Martin Luther King, Jr., for example). These traits tend to make a group more
successful.

D. Numerical Strength - Generally, it is accurate to say there is power in numbers.

Policymakers would be more inclined to listen to groups with large memberships.
There is, however, a law of diminishing returns at work here. If a group is very large,
it most likely will be sacrificing another important trait for success: unity.

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 E. Group Unity - Without unity of purpose groups expend a great deal of energy on
internal disputes (with little left over for external use). Groups with fewer people tend
to have greater unity.

F. Money - While money is important and those groups with it tend to be more
successful, it is not as important as the media would lead people to believe.

G. Narrow Goals – Groups that focus on narrow goals can focus their resources in a
more efficient manner. The text calls them special interest groups. Groups (like
Common Cause) that tackle numerous goals of a broad nature (from campaign finance
to reforming Congress) often find they are not as efficient.

H. Defensive - Groups that seek to sustain the status quo tend to be more successful
than groups seeking change or reform. Part of the explanation is the bias built into
American political institutions, such as Congress, that make it easier to block the
passage of a law than to pass a law.

I. Nature of the Issue - Groups are interested in different issues. Some issues are
general, while others are technical in nature. When issues are technical, voters are less
inclined to notice or care. Hence, groups dealing with highly technical issues tend to
be more successful.

2. It might make for interesting (and thoughtful) discussion to analyze some of the
assertions made by the authors at the end of the chapter. At the very end of the chapter,
the authors write:

One of the first pluralists, James Madison, thought factions could be constrained
by creating the extended republic, as he explained in The Federalist, no. 10. He
seems either not to have foreseen or to have underestimated several modern
developments.

First is the tremendous expansion of society that contributed to the explosion of

groups. Second is the prevalence of logrolling. Logrolling among interests is
facilitated by a third development, the rise of professional politicians who, in
seeking reelection, broker the group deals in return for the electoral support that
interest groups provide.

To analyze this, we first must understand exactly what Madison was arguing in
Federalist 10.

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Factions:

Madison begins this essay stating, "Among the numerous advantages promised by
a well-constructed Union, none deserves to be more accurately developed than its
tendency to break and control the violence of faction."

In the first portion of the essay, Madison discusses the desirability and possibility
of removing the causes of faction. He rejects that possibility, stating that factions
are sown in the nature of man.

Madison concludes, "The inference to which we are brought is that the causes of
faction cannot be removed and that relief is only to be sought in the means of
controlling its effects."

Controlling Factions:

How, then, does a government control the effects of faction? If a faction is

composed of a numerical minority, then in a democracy (Madison uses the word
“republic”) it is controlled since it will be outvoted by the majority. The real
problem is majority faction.

Part of the cure comes in Madison's second usage of the word republic. Earlier in
the essay Madison used the word "republic" as synonymous with "majority rule."
Now, he defines it as a representative democracy. It helps cure the mischiefs of
faction because it allows for a large republic.

Advantages of a Republic:

A republic provides two advantages over a pure (direct) democracy. First, the
people themselves do not make decisions. Instead they decide who will make the
decisions in elections. Second, a republic can cover a larger area. One effect of
this difference is to "refine and enlarge" the public's views by "passing them
through a chosen body of citizens whose wisdom by best discern" the true
interests of the citizens.

Here Madison is first concerned with a problem experienced with pure

democracies: folly. By folly he means that democracies (strict majority rule)
often make bad decisions. As stated in another Federalist, citizens may intend
good, but they don't always make decisions in their best interests.

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3. A second major argument made in Federalist 10 is that a large republic is better than a
small republic. Here is the argument from Publius' perspective. It is probably the most
important component of the framers' design behind the Constitution. Some would say it
is Madison's major contribution to American political thought, calling it pluralism.

The Large Republic Argument:

Having argued that a republic is better than a pure (direct) democracy, Madison
now argues that a large republic is better than a small republic. It is at this point
in his argument that Madison is credited with endorsing pluralism.

Why is a large republic better than a small republic? Madison asserts that no
matter how large or how many people there are in a country, the number in the
legislature is not going to vary that much. This is important because it means that
in a large republic you are not going to have that many more legislators than if
you had a small republic.

The importance of this point is that in a large republic there will be a much greater
number of people (and, hence, a large geographical area usually) represented by a
legislator. This will result in a higher caliber of individual getting elected to the
legislature.

Remember, Madison had already argued that a republic is better than a pure
democracy because in a republic the legislator will be wiser and thus can refine
the public's wishes. So, in a republic anything (that is, in agreement with the
spirit of democracy) that increases the chances of a wiser person being elected is a
positive factor. The large republic will do this. How?

In a large republic, the areas electing legislators will be more populous and
probably geographically larger. Hence, to get elected, politicians will have to be
familiar to the voters. This familiarity, in Madison's time, would come from
having achieved something. Madison asserts that politicians will not be able to
get elected to the national legislature merely by knowing more people. There will
be too many people to have to know. Instead, they will only be successful at
being elected if they are known for their accomplishments.

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Prevalence of Logrolling:

The authors, quoting the research of others, write, "Rather than check and balance
each other, interest groups often cooperate..." The first thing to note about this
quote is that it refers to checks and balances in a manner than is inaccurate. When
the framers discussed this concept they did so by referring to what would go on in
the three branches of the national government. They did not see how that could
keep interest groups (on the outside of government) from forming alliances.

If, however, the point is that the deals made by interest groups are then carried out
in the government, what would Madison say about that? He would say, “well
done!” Making deals is exactly what he had in mind in designing the large
republic. If the voters don't like the deals they can elect new officials. Of course,
the voters can also hope the president will veto bad deals, or the Supreme Court
may be able to find them unconstitutional. In the end, since it is a democracy
(albeit a representative democracy), the voters have the final say.

Rise of Professional Politicians:

This point ties in with the debate in recent years over term limits. The authors, in
quoting the study, argue that politicians are controlled by interest groups, which
then ensure that they will get elected.

The problem with this argument is the one mentioned above. Voters can always
refuse to reelect politicians that seem to be more concerned with brokering the
interests of major groups instead of making decisions that are good for the most
constituents. Of course, there is no proof that brokering interests is always bad.
Again, that is what Madison wanted the Congress to do: broker the multiplicity of
interests in the large republic.

What Was Madison's Failure?:

Did Madison, as the authors put it, not foresee modern developments, or did he
underestimate several modern developments?

Madison did not foresee (how could he?) the technological advancements that
would change entirely how campaigns for national office were conducted. He did
not foresee that mass media (particularly television) would reduce the large
republic to a technologically small republic. Politicians, with the aid of
television, could enter into the public's living rooms. There the politician would

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 introduce himself (with the assistance of consultants that would tell him
everything from what to say to how to dress and comb his/her hair), his family,
and perhaps even his dog.

Having overcome one of the large republic arguments, with the assistance of
television, the burden became greater on the voter. This is because voters do not
get to know the politician on a personal basis, but rather for something they had
achieved. Voters, then, might start judging candidates for office by how they look
or what their family looks.

Madison didn't foresee this.

Alexis de Tocqueville

And then there is Alexis de Tocqueville. The young French aristocrat visited the
United States in the 1830s to study its prison system. Upon returning to France,
his book "Democracy in America," explained the workings of democracy in detail
to an inquisitive Europe. He discussed the workings of democracy in America
and its potential in a world undergoing radical change. He, unlike Madison,
praised democracy for raising the level of the average person but noted that it
emphasized equality more than liberty present a potential for danger. He
marveled the mere fact that people were coming together and associating, which
reflected a strong democratic culture.

LIST OF TRANSPARENCIES

Each transparency listed is followed by the Text Figure (or Table) number, followed by
the text page.

T12 PACs Formed Rapidly After the 1974 Federal Election Campaign Act (FECA)
Reforms, 7.2, 217

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94
CHAPTER EIGHT
Political Parties

OVERVIEW

Although not mentioned in the Constitution, political parties developed early in the
history of the republic. Alignments with parties are fairly consistent, changing when a
critical election or era occurs.

Parties serve a variety of important functions, yet Americans tend to view them
negatively. This is partially due to the fact that parties are mired in a constant struggle to
win elections. The United States has mostly had a two-party system due to election rules.
The parties have been weakened by eforms intended to give voters a greater say in their
affairs. The Democrats and Republicans continue to dominate the election landscape.

LEARNING OBJECTIVES

1. Itemize the various roles and functions of American political parties.

2. Explain how political parties contribute to democratic politics in America and how
they may also detract from democratic values.

3. Review and explain the six party-systems in American history, noting why and how
each system came into being.

4. Explain why the United States has a two-party system and why most of the other
democracies in the world have a multiparty system. Be sure to define "single-member,
simple plurality" and "proportional representation" systems.

5. Evaluate the current state of America's political parties, including the reasons behind
the decline of party organizations.

6. Summarize those trends that raise the question as to whether party organizations can
be revived.

7. Examine the argument as to whether the power of interest groups correlates negatively
with the power of parties.

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KEY TERMS

coalition government political party

critical election
direct primary
divided government
electoral system
machine
multiparty system
national convention
party alignment
two-thirds rule
progressives
proportional representation
realigning election
realignment
single-member, simple
plurality (SMSP)
ticket splitting
two-party system

OUTLINE

I. What Parties Do

To most political commentators in other advanced democracies, political parties

play an important and vital role. In contrast, many Americans (professors being
one exception) think that things would be better if there were no parties.

A. How Parties Contribute to Democratic Politics

1. Organizing and Operating the Government

There are different levels of government in the United States (local, state, and
national), and there are several branches at each level (legislative, executive, and
judicial). Parties are a means for all of these to coordinate their efforts.

2. Focusing Responsibility for Government Action

Parties are a way of holding politicians accountable collectively for government

policies.

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 3. Developing Issues and Educating the Public

Parties identify problems, publicize them, and advance possible solutions. Parties
do this while struggling against each other in elections and one result is the
education of the voter.

4. Synthesizing Interests

Because parties compete nationwide, they have incentives to provide platforms

that offer a mix of benefits and burdens to all in the hope that a larger good will
be the result. When they don't, they suffer electorally.

5. Recruiting and Developing Governmental Talent

Parties want to win, and so they are always on the lookout for promising
candidates. Like predators in the natural environment, parties help to maintain the
quality of public officials by weeding out the weak.

6. Simplifying the Electoral System

Without parties to narrow down the choice of candidates, voters might be faced
with a great number of candidates to pick from (without party labels!). Voters
would have to spend a great deal of energy becoming informed about each
candidate.

B. How Parties Detract from Democratic Politics

There are two reasons why Americans have, since the end of the nineteenth
century, held parties in relatively low esteem.

First, that parties can perform valuable functions is no guarantee that they will
perform valuable functions. People organize and perpetuate parties primarily for
their own selfish interests.

Second, parties can abuse their powers. The stronger parties have more potential
for extreme abuse. American history provides lots of examples.

1. Capturing Governments and Dictating What They Do

Progressives accused the party machines of acting like an elected dictatorship.

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 2. Confusing Responsibility

Parties will blame their opponents for things over which their opponents are not
responsible, and parties will take credit even though they were not responsible.
They may even try to turn a policy into a failure to make the opposition party look
bad (particularly when the government is divided between Democrats and
Republicans).

3. Suppressing the Issues

For various reasons, parties may choose not to develop new issues. (One result
can be the eruption of third parties.)

4. Dividing Society

Rather than synthesize disparate interests into some larger whole, parties may do
just the opposite.

5. Recruiting Hacks and Celebrities

Parties sometimes recruit unqualified politicians. The emphasis on media in

campaigns has resulted in the parties also recruiting celebrities, who may or may
not be qualified.

6. Oversimplifying the Electoral System

By presenting voters with only two choices, Democrat or Republican, parties

leave some voters disenchanted.

C. The Balance Sheet

Scholars generally approve of political parties (since they see the alternative--no
parties--as even worse), while reformers view parties from the ideal and, hence,
conclude they fail.

II. Political Parties in American History

Parties in America stopped representing merely elites during the Jacksonian Era.
They became mass parties. American parties now are weaker and less active than
most of their European counterparts.

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III. The Party Systems Interpretation of American History

The rarest of American elections is the "critical" or "realigning" election: when

party alignments change. During realigning era third parties appear and turnout
rises.

A. The First Party System (Jeffersonian)

The first party system was basically between the Federalists (mostly those located
in New England) who supported commercial interests and favored an expansive
national government and the Democratic-Republicans (mostly located in the
South and West) who advocated agricultural interests.

B. The Second Party System (Jacksonian Democracy)

After losing the presidency in 1824, Andrew Jackson put an emphasis on

grassroots support. The result was a tremendous increase in voting in 1828.
Also, Jackson was the first major candidate to be nominated by delegates at a
convention rather than by caucus. Thus, he is credited with creation of the first
mass party.

Jackson supporters were called Democrats. The dominant issues were economic
and territorial (the tariff, national bank, slavery, and expansion of the Union).

By the early 1850s, sectionalism and slavery resulted in the rise of third parties
and a new party: Republicans.

C. The Third Party System (Civil War and Reconstruction)

This was the most competitive electoral era in American history. Democrats were
strong in the House of Representatives, republicans controlled the Senate, and at
the presidential level, the election results gave rise to the phrase "the period of no
decision."

Initially, reconstruction was the dominant issue. It was later replaced by

economic issues. Party organization reached its high point (often called
"machines").

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 Agricultural protest, common in this era, gave rise to a Populist party that
ultimately fused with the Democrats to nominate William Jennings Bryan in
1896. His loss showed that voters viewed the Populist vision of a worker-farmer
alliance as less compelling than the Republican vision of a modern industrial
state.

D. The Fourth Party System (Industrial Republican)

The critical election of 1896 inaugurated a period of Republican dominance.

Democrats were reduced to their base in the South, while Republicans dominated
the North and West.

Democrats nominated the first Catholic to the presidency (Al Smith). Only one
Democrat was elected president during this era. In 1912, Woodrow Wilson won
the three way race among himself, William Taft (the Republican), and Teddy
Roosevelt (the Progressive) and was reelected in 1916.

The era was noted for its reforms (advocated primarily by Progressives): direct
primary, secret ballot, the civil service, initiative, referendum, and recall.

E. The Fifth Party System (New Deal)

The critical elections of 1932 and 1936 established the fifth party system. It was a
class-based party alignment with Roosevelt (Democrats) the party of the common
people (farmers, blue-collar workers, housewives, and minorities) while
Republicans became, more than ever, the party of business and the affluent.

Democrats dominated the era. Only one Republican was elected president.
Eisenhower won in 1952, and was reelected in 1956. Only once (1952) did
Republicans control Congress and the presidency.

Major issues arose during this era: the Great Depression, World War II, and the
"cold war." Democrats found it increasingly difficult to deal with the racial
issue.

F. The Sixth Party System (Divided Government)

What characterizes this system is the high rate of ticket-splitting, with voters
supporting the presidential and congressional candidates of different parties in the
same election.

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 Beginning in 1964, Republicans made deep inroads in the Democrats' southern
base. The racial issue resulted in many blue-collar and urban whites joining
southerners in abandoning Democratic presidential candidates.

The Vietnam War and social issues also divided Democrats. Most commentators
believe the New Deal party system is gone, but they do not agree on what, if
anything, has replaced it.

IV. Two-Party and Multi Party Systems

For two centuries of the country's history, two major parties have dominated
elections for national office. Most democracies have multiparty systems. What
factors explain this?

Most scholars believe that an important factor in determining whether a polity has
two parties or more is its electoral system. At the national and state levels the
United States relies almost exclusively on the single-member, simple plurality
system. This system tends to manufacture majorities or at least to exaggerate
their size. Voters are not inclined to support third-party candidates since that is
viewed as "wasting your vote."

In most of the world's democracies, however, the electoral system is some version
of proportional representation. Under this system, governing majorities exist only
where voting majorities exist.

V. How Strong Are American Parties Today?

In recent decades, scholars and journalists have disagreed over the health of
political parties in America. Why?

Partially, because of the confusion as to what a party is. Parties are multifaceted.
They are composed of the organization, public officials, and voters. Those
describing the decline of parties focus on the weakening of party organizations at
the state and local levels, and the decline in party cohesion in Congress. Also,
fewer Democrats and Republicans and more Independents. However, in recent
years, the first two trends have reversed.

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 A. The Decline of Party Organizations

The decline of American party organizations was in considerable part a

consequence of deliberate public policies: civil service reform and direct primary.

There are other factors as well. The communications revolution lessened the need
for traditional parties. The post-World War II increase in mobility--social,
economic, and residual--undercut parties. The Supreme Court's reapportionment
decisions (one-man-one-vote) also had an impact.

B. The Revival of Party Organizations?

Unlike the past, national party committees today are active and well-financed.
They were rejuvenated by the parties increasingly relying on full-time political
operatives and experts on polling, fund-raising, campaigning, and the media.
They have, in turn, helped rejuvenate party organization at lower levels.

Some view this resurgence differently, describing parties as not stronger but just
busier.

VI. Parties vs. Interest Groups

Some political theorists believe that the power of interest groups correlates
negatively with the power parties. Assuming a two-party system, the argument
makes sense.

If the argument is valid, the real alternative to party domination of the electoral
process is not popular influence, but interest group influence.

IDEAS FOR LECTURES OR DISCUSSION

1. Why a Two-Party System?

The authors end the chapter with an explanation for why a two-party system has
dominated American politics whereas most modern democracies have a multi
party system. They describe in some detail the difference between proportional
representation and single-member, simple plurality voting.

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 There are other reasons that could be discussed for why the United States, unlike
most other democracies, has developed and retained a two-party system.

A. Historical Factors

American history has basically been one of duality. Two groups, for whatever
reasons, have dominated most of U.S. history.

Early on in the history of the republic, a major division was whether or not to
declare independence (Whigs and Tories). The next significant issue was the
writing of the Constitution. Here, two groups developed at the Constitutional
Convention: confederationists (states rightists) and nationalists (as discussed in
Chapter 3). Once the Constitution was written, the nation divided over
ratification: Federalists (for ratification) and Antifederalists (against ratification).
When the first parties developed it was into two: Democratic-Republicans vs.
Federalists.

Probably the most significant issue dividing the nation was slavery: North vs.
South. After the Civil War, as noted in this chapter, the division was primarily
between farm (rural) interests and industrial (urban) interests. Finally, in recent
decades a major division written about a great deal is that between the Frostbelt
(industrial Midwest and Northeast) and Sunbelt (South and West).

Thus, most of the great issues to divide the United States have resulted in two
groups.

B. Consensus

A marked difference between the United States and most other democracies to
which it is compared, is the strong agreement as to what "issues" are debatable
and which are considered settled.

For example, no serious candidate for national office in the U.S. seeks to debate
the need to write a new Constitution. The same could basically be said for the
place of public education, separation of church and state, and capitalism. These
issues are considered "settled." Although some people, and even candidates, may
raise questions over such issues, they are generally not taken seriously.

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 Such is not the case in many other democracies around the world. In many of
these democracies, there is serious discussion over whether or not a new
constitution is needed or just what type of economic system is desired. Some have
Christian parties and blend religion with politics. These issues are alive and being
seriously discussed in some countries.

One result of this difference is that parties in America are not "cross-cut" with a
variety of significant issues. The parties agree about many significant issues.
Their differences are more about the means category rather than the ends as well
themselves. Whereas in other democracies, there exists not only differences over
means but the ends themselves. Thus, there are significantly more issues "cross-
cutting" each significant issue, with the resulting proliferation of groups and
parties.

C. The Media

Some see a bias in the U.S. media towards the major parties. Democratic and
Republican presidential candidates, for example, are covered routinely by the
evening news. Third-party and Independent candidates are given little, if any,
coverage. Only a billionaire, so the criticism goes, like Ross Perot can make any
headway into challenging the major party candidates because he is capable of
purchasing expensive media (primarily television) time.

In their defense, the media argue that it does not cover third parties because they
are not serious challengers and thus, not newsworthy.

Third-party candidates claim that this places them in a Catch-22. They don't get
covered by the media because they are not newsworthy, but they are not
newsworthy because they are not covered by the media.

In any event, it is a fact that most of the news coverage goes to the Democratic
and Republican candidates.

D. Rules of the Game

As mentioned earlier, the authors highlight the bias for the two-party system in
the single-member, simple plurality rule. There are others.

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In every state, the Democratic or Republican nominee for office automatically
gets printed on the ballot. Third-party and independent candidates must earn a
place on the ballot. This usually means collecting thousands of signatures
(sometimes with strict standards as to how and where they are collected).

Each state can also develop other rules that discourage third parties. They might,
for example, stipulate that for a vote for a third-party candidate for the presidency
to count, the voter must list the name of the candidate's electors on the ballot. In
1968, George Wallace ran for president as an American Independent Party
candidate. He claimed he spent more money on lawyer's fees challenging state
laws to get on the ballot, than he did campaigning. The same holds true for John
Anderson in 1980. Though he was more successful than Wallace at overturning
state ballot access laws, the time he spent in the courthouse severely impeded him
from his grassroots effort.

In contrast, the Ross Perot effort on 1992 overcame the various state ballot access
requirements. As the most successful third-party/independent presidential
candidate since Teddy Roosevelt's unsuccessful Bull Moose pursuit, Perot
possessed the resources to establish state directors and volunteers to garner the
needed signatures to get on the ballot.

Election rules are written mostly by state legislatures (with some federal laws).
State legislatures and Congress are dominated by Democrats and Republicans. It
is not surprising that the rules they (Democrats and Republicans) write into law
tend to discourage third-party and independent candidates.

A good example of this at the national level is the 1974 Campaign Finance
Reform Act. This law was the first to provide public financing for presidential
candidates. It allowed for each presidential candidate to get 10 million dollars
(increased every four years to take inflation into account) in tax money in the
prenomination phase of the campaign. Once a candidate was nominated, it
provided for 20 million dollars (again, subject to inflation increase) to be given to
a nominee. In both instances, however, the law stipulated the money for major
parties only (Democrat and Republican). Third parties and independents could
get public money under the law but only after the election, and only if they got at
least 5 percent of the popular vote (after which their funds would be prorated
based on the major party vote).

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E. Inertia

A body in motion tends to stay in motion - so states the law of inertia. The same
could be said of a two-party system. Once in place, it tends to stay in place.
Why? For all of the reason listed above, and one more.

In Chapter 5, the authors discussed political socialization. The fact is that parents
that are Democrats tend to raise children that identify with the Democratic Party;
likewise for Republicans. Since those two parties have dominated most of
American history since the Civil War, they tend to perpetuate themselves.

2. Are the Two Major Parties Different?

The answer is yes and no. Frank Sorauf (“Party Politics in America”) divided the
two major national parties into three groups: party in electorate, party in
organization, and party in government.

The party in electorate for the two major parties does not differ that much. The
party in organization and party in government for each major party do differ.
This can be clearly seen from studies of the views of delegates attending the
national conventions (party in organization) and the views of those holding public
office (party in government).

Perhaps the most recognized document that distinguishes the parties from each
other is the party platform, drafted every four years.

Here are some issue differences from the 1996 Democratic and Republican
platforms:

State of the Economy:

Democrats: "Today, America is moving forward. The economy is stronger, the

deficit is lower and the government is smaller."

Republicans: "We cannot go on like this. For millions of families, the American
dream is fading."

Further, it should be explicitly noted that both political parties endorse and
support capitalism rather than socialism and/or communism. Thus, logically and
theoretically, the political parties are playing the same tune economically.

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Taxes:

Democrats: "America cannot afford to return to the era of something-for-nothing

tax cuts."

Republicans: Support a 15 percent reduction in tax rates, a $500-per-child tax

credit, a 50 percent cut in the capital gains rate, expansion of I.R.A.'s and lower
taxes on Social Security benefits.

Abortion:

Democrats: Support a woman's right to choose to have an abortion in all

circumstances currently legal. "Respect the individual conscience of each
American on this difficult issue."

Republicans: Support a Constitutional amendment that would outlaw abortion in

all circumstances.

Affirmative Action:

Democrats: "We should mend it, not end it."

Republicans: "We will attain our nation's goal of equal rights without quotas or
other forms of preferential treatment."

Homosexual Rights:

Democrats: Seek to "end discrimination against gay men and lesbians and further
their full inclusion in the life of the nation.

Republicans: "Reject the distortion" of equal protection laws that would "cover
sexual preference."

Arts and Broadcasting:

Democrats: Support government assistance to the Corporation for Public

Broadcasting.

Republicans: Seek an end to funding for the Corporation for Public Broadcasting.

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Finally, for those who believe that party platforms were made to be broken,
Gerald Pomper's study of platforms showed that what a party says it believes in
matters. He examined the major party platforms from 1944 to 1976 and
concluded that about two-thirds of platform pledges are carried out (Gerald M.
Pomper with Susan S. Lederman, Elections in America, 2nd ed., 1980, pp. 128-
178).

3. Why Don't the Parties Appear to Differ?

Why is it that the average American is unable, with any specificity, to distinguish
differences between the two major parties? A partial answer to this question can
be seen by examining three elections: 1964, 1972, and 1976.

1964 Presidential Election:

In spite of the fact that he represented a minority of views within the minority
party (less identifiers than Democrats), in 1964, Goldwater was able to convince
the Republicans to nominate him for president. He did this by convincing them
that, even though he was an outspoken candidate who sometimes, contrary to
conventional wisdom, took specific issue positions, he could win. His position
was that as such an outspoken candidate, he would ignite voters. Thus, more
people than usual would vote, and they would vote for him. His campaign slogan
became, "A choice, not a echo." He would not merely mimic the Democratic
candidate; rather, he would provide the voters with a "real" choice.

Goldwater was defeated in a landslide.

1972 Presidential Election:

In 1972 the Democrats nominated a rather liberal Democrat, George McGovern.

How did he get the nomination? Part of the explanation was that McGovern had
co-chaired a commission that developed new rules for the election of delegates to
the national convention. Not surprisingly, the rules favored a more liberal
candidate like McGovern.

Although he was able to get the nomination, McGovern lost every state (including
his home state) but one (Massachusetts). Nixon won in a landslide.

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1976 Presidential Election:

In 1976, the two major parties seemed to have learned that when candidates take
specific issue positions or are viewed as extreme, they lose.

That year the Democrats nominated Jimmy Carter, and the Republicans
nominated Gerald Ford. It was very difficult to pinpoint what each candidate
stood for. Carter ran on the phrase "I will never lie to you," and Ford was the
incumbent who wanted to move America forward.

The result was one of the closest elections this century. Had 10,000 (out of about
80 million) voted differently (in selected areas of the nation), Ford would have
won. The lesson for the two parties would seem to be if your nominee
distinguishes himself too much from the opponent, you risk losing. A better
strategy is to try to stake out positions that distinguish yourself from your
opponent, but not too much. If voters can't tell the difference between the two
major candidates for president, this may be due to the strategy of the two
campaigns.

Third Parties:

Though many political scientists claim they are needed to serve as a check and
balance on the two-party system, there have been many reasons for their failure at
the ballot box. Besides the historical dualism and political culture, which
advances the two-party system, institutional barriers play a significant role in
hindering the success of these political vehicles at the local, state, and federal
levels.

They are as follows (here is a good opportunity to discuss Perot's 1992 and 1996
campaign, as well as Ralph Nader's 2000 Green Party presidential pursuit):

a) ballot access requirements

b) federal financing of campaigns
c) single-member, winner-take-all electoral districts
d) bias media coverage
e) issue cooptation
f) the electoral college

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 Maybe George Wallace was right when he called the Republican and Democratic
parties "Tweedledee and Tweedledum." Regardless, third parties raise issues and
offer voters an additional selection at the ballot box - if they are fortunate enough
to get on the ballot!!

LIST OF TRANSPARENCIES

Each transparency listed is followed by the Text Figure (or Table) number, followed by
the text page.

T13 Party-Systems Interpretation of American Electoral History, Table 8.1, 240

T14 Party Organizational Chart, 8.2, 255

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CHAPTER NINE

The Media

OVERVIEW

Newspapers were superseded by television and now recent technological developments

have produced new media that are changing the shape of that medium.

The effects the mass media have on voters are contingent: they depend on the audience
and the information being conveyed. Media can determine what is being discussed,
prime people to evaluate politicians in a particular way, frame issues, and ultimately
persuade people to think a particular way.

There are several forms of media bias, but there is little to show any significant liberal
bias. The biases that do occur are (1) defining what is news, (2) emphasizing conflict, (3)
emphasizing on the negative, (4) emphasizing on scandals, and (5) and emphasizing on
personalities.

Voters do become more informed watching campaign ads. The emphasis on media in
campaigns has led to the development of the media consultant (replacing party leaders).

LEARNING OBJECTIVES

1. Explain how the media influenced or did not influence public opinion after the Tet
Offensive and the 1968 Democratic National Convention in Chicago.

2. Discuss the historical evolution of newspapers, from being expensive and partisan-
controlled to becoming truly affordable, independent and professional publications.

3. Discuss the roles of television, radio, and the new media in terms of providing
information to the American people.

4. Explain how government regulates the electronic media.

5. Identify the main sources of media information for the American people.

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6. Itemize and discuss the importance of media effects agenda-setting, priming, framing,
and persuasion- and evaluate how strong these effects are and why these effects relate to
the situation and characteristics of the information being considered.

7. Review the general categories of media biases--ideological, selection, and

professional--and the prospects for changing these biases.

8. Discuss the strengths and weaknesses of media coverage in relation to campaigns, the
national nominating conventions, and the presidential debates.

9. Pinpoint the key elements of media coverage of the government--emphasis on the

president (and other personalities), the stress on conflict, the emphasis on scandals or
gaffes, the accentuation of the negative, and the exaggerated concern with the press.

KEY TERMS

agenda-setting mass media

CNN effect minimal effects thesis
equal-time rule new media
fairness doctrine priming
framing selection principle
spin

OUTLINE

I. Development of the Mass Media

The term “mass media” refers to means of communication that are

technologically capable of reaching most people and are economically affordable
by most.

A. Newspapers and Magazines

The first daily newspaper in America was published in 1783. Prior to this, mostly
weeklies were published. Some were affiliated with a political party.

The rise of the penny (newspapers selling for a penny) in 1883 marks the birth of
the media in America.

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 As readership expanded, newspapers changed. They emphasized local news,
focused on sensationalism, and began including the human-interest story. They
were still intensely partisan.

After the Civil War, the press became more independent of political parties. The
emphasis in the late 1800s was sensationalism (sometimes called "yellow
journalism"). The great chains--Hearst, Scripps, and others--were being formed
around the turn of the century. Partisanship of newspapers declined; journalists
became more professional.

Inexpensive magazines that were aimed at the new educated middle-class also
made their appearance.

Today, about 11,000 newspapers and 12,000 periodicals are published. Many
newspapers and newsweeklies maintain their own Washington bureaus and send
reporters all over the world. Smaller cities rely on news services like the
Associated Press.

The most important modern trends in the newspaper industry are the declines in
the number and independence of papers. Most cities are now served by one or
two newspapers, and chains gobble up independent newspapers. Gannett owns
more than 90 papers.

Some worry that the print media in particular and the mass media in general are
becoming increasingly homogeneous.

B. Radio

Radio began making inroads into the print media monopoly in the 1930s.
President Roosevelt, with his made effective use of the radio with his fireside
chats.

Today there are more than 11,000 stations that reach 80 percent of the population.
The average household has five radios.

Probably the most important recent political development in radio

communications is the rapid increase in talk shows. One of the most widespread
is conservative commentator Rush Limbaugh's show.

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 The talk-show format is now the sixth most popular radio format, just ahead of
rock.

C. Television

Today, the term “mass media” is used almost synonymously to mean television.
There are more than 1,500 television stations in the United States and about 99
percent of all households have at least one television set (with an average of four).
The industry was organized under three large networks: NBC, CBS, and ABC.

The Dwight Eisenhower campaign was the first to take advantage of television,
producing simple commercials. President John F. Kennedy elevated television
above the print medium.

Cable television began to expand in the 1970s. Today, 65 percent of households

get cable. Prime time network programming has lost more than a quarter of its
audience to cable stations, leading some scholars to suggest that the United States
is in transition from an era of broadcasting to an era of narrowcasting.

Still, network television continues to be the largest single source of information

available to Americans.

D. New Media

Cable television is probably the best-known example of what is generally

described as the new media. Other facets included in the phrase would be VCRs,
fax machine cellular phones, satellite dishes, CDs, modems, answering machines,
and e-mail.

Of these, only cable television is used by enough people to be considered mass

media.

While network TV makes "general" appeals to its audience, the newer media
allow politicians to communicate very specific information to specialized
audiences. It gives politicians a greater capacity to communicate to voters
without having their messages constrained and edited by the traditional mass
media.

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 E. Government Regulation of the Electronic Media

One difference, historically, between print media and electronic media is the
amount of government regulation (with much more regulation allowed of the
latter).

The Federal Communications Commission regulates the electronic media.

Regulations concerning what could be broadcast was upheld by the Supreme
Court. The reason was that unlike print media, electronic media was constrained
by technology (just so many stations could be located on the radio band). Since
not everyone had an equal chance to get their views out on radio, government
could regulate it.

The FCC issued the equal time rule. It required stations that sold time (or made
time available) to one candidate to sell equal amounts of time to other candidates.
It also issued the fairness doctrine, which basically forced stations to provide
balanced political viewpoints to be expressed, but the rule was repealed in 1987.

Congress passed the major Telecommunications Act in 1996 that, by further

deregulating the telecommunications industry, should produce far-reaching
changes in mass media.

II. What Information Sources Do Americans Use?

Television is the dominant provider of information in American society, and its

dominance is increasing as the electronic media progress and expand.

As one moves from national to state to local politics, however, television

prominence declines (with newspapers being the major source of information in
local elections).

III. Media Effects

Early studies done on the effects of mass media on people's opinions tended to
show that Americans were remarkably resistant to attempts to change their views.
The primary reason was selective perception. People were receptive to what they
already believed and screened out what they didn't.

Later studies on television showed various effects.

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 A. Agenda-Setting

One researcher concluded that while media may not tell people what to think, that
could tell people what to think about. This has been dubbed the CNN effect.

B. Priming

Media may also be responsible for directing the public to think along certain lines
(such as evaluating a president based on a particular issue). This is called
priming, and is similar to the idea of framing discussed in Chapter 5.

C. Persuasion

If the media persuades people to think about a particular issue or think differently,
it is generally the end result of a chain of subtle influences rather than the direct
product of media attempts to convert people to an alternative point of view.

D. How Strong Are Media Effects?

The strength of the effects of media depends on the characteristics of the audience
and the characteristics of the information.

Uninterested and uninformed people are most susceptible to agenda-setting

effects. Partisans are more easily primed.

When the problem or event is far away--well beyond personal experience--and the
mass media provide the only information people have, their influence will be
greater than when information is closer to home and people have some personal
basis for arriving at opinions.

IV. Media Biases

A. Ideological Bias

Is there a liberal media bias? Liberal viewpoints are over-represented among

practicing journalists, but do these journalists let their views bias their reporting?
It is a fact that the endorsements of the newspapers are disproportionately
Republican.

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 There is not much evidence of a significant liberal bias in media coverage of
politics.

Some studies have concluded that the media are harder on Republicans, but other
studies have shown just the opposite.

One researcher concluded that the media are harder on incumbents than
challengers.

The fact that the media are business enterprises pulls them in a conservative
direction.

B. Selective Biases

Far more pervasive than ideological bias is a bias toward the negative in the
media. One political scientist argues that the negative tone of the media has
become much more prominent in recent decades. Others observe that this has
contributed to increasing voter cynicism.

Another selection bias is what constitutes news. Events and crises, heroes and
villains, dramatic events, colorful personalities, and sound bites all make better
news than their counterpoints.

C. Professional Biases

Some journalists work a particular beat, but most are generalists who lack specific
substantive expertise. Then, too, there is the pressure of ratings (in television
news).

The lack of internal expertise and the competitive pressure for ratings contribute
to what is called pack journalism, wherein reporters unanimously decide
something is the big story and attack it like wolves tearing apart its prey.

D. Prospects for Change

As the network system declines, more independent stations begin operation, and
the new media continue to advance, we may see the development of numerous
specialized informational channels that reflect values different from the
entertainment values that increasingly shape the modern mass media.

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 Selection biases might gradually become undermined by technological change.

V. The Media and Electoral Politics

A. Campaign Coverage

Critics charge the media with providing far too much coverage of candidate
personalities and not enough of the issues. In recent years, the media has
increasingly treated elections as horse races, with an emphasis on who's winning
and who's losing.

B. The Conventions

Since the primary process for nominating candidates was instituted in 1972, the
conventions are not nearly as important as in earlier eras, and media coverage has
dropped accordingly.

Consequently, the parties now treat the conventions as huge infomercials, with the
networks providing less coverage. In 2000, MTV provided more coverage than
the three networks combined.

C. The Presidential Debates

The Commission on Presidential Debates was established in 1987 to ensure that

debates, as a permanent part of every general election, provide the best possible
information to viewers and listeners. Its primary purpose is to sponsor and
produce debates for the United States’ leading presidential and vice-presidential
candidates and to undertake research and educational activities relating to the
debates. The organization, which is a nonprofit, nonpartisan corporation,
sponsored all the general election debates in 1988, 1992, 1996, and 2000.

The debates also don't hold good news for independent and third party
presidential aspirants. The nonpartisan commission established a rule and
reiterated that rule in January of 2000 – which hurt Ralph Nader of the Green
Party. The rule explicitly states that presidential candidates must have an average
of at least 15 percent support in five national polls in order to take part in the fall
debates.

Moreover, there are indications that performance in the debates can sway the
undecided voter.

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 As in campaign coverage generally, the first question the media raise about
debates is "who won?" If a candidate has misspoken, that often becomes the
subject of a feeding frenzy.

VI. Media Coverage of Government

The media views much of what government does as dull, and, as a result, it goes
looking for what is less dull.

A. Emphasis on the President (and Other Personalities)

The media pays more attention to the president than to Congress. He is one
person and has personality and character. (One exception of recent years was
early coverage of Speaker Newt Gingrich, an outspoken and colorful individual.)

By focusing on personalities, the media encourages individualism and discourages

teamwork.

B. Emphasis on Conflict

The media emphasizes conflict, name-calling, and the like over thoughtful,
intelligent discussion.

C. Emphasis on Scandals and Gaffes

For every three-issue stories about Congress today, there is a media story about a
congressional scandal. From 1972 to the mid-1980s, for every scandal story,
there were 13 issues stories.

D. Emphasis on the Negative

From the media's standpoint, what government does well is less newsworthy than
what government does badly.

E. Exaggerated Concern with the Press

Government officials have become more concerned with the press than the voters.

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IDEAS FOR LECTURE OR DISCUSSION

1. Here are some ideas that relate to points made in the chapter, but go into more depth.

What is the "law of minimal effects?":

It describes how effective political ads on television are in changing voters’

minds. When a person buys television time for a political ad, one assumes they
are trying to convince those who are going to vote for someone else, or who are
undecided, to change (or make up) their minds and vote for them.

The law of minimal effects posits that the chance of this happening is slim. If this
law is true, than it would appear that when candidates spend large sums of money
on television ads, they are not getting their money's worth. Is it true?

First, why would television have a minimal effect on changing people's minds? It
has to do with the political interest and knowledge of the average voter. As
pointed out repeatedly in the text, most people are politically ignorant and
apathetic. In the 1950s and a great deal of the 1960s when candidates wanted to
advertise on television they would buy large chunks of time (often 30 minutes) to
explain their views to the voters. Yet, most voters did not want to listen to a
candidate talk about issues for 30 minutes, so they would switch channels.

Only two types of people watched these political ads: those who really liked a
candidate and those who really disliked a candidate. The candidate running the
ads obviously did not want to change the mind of the former, and it would be
nearly impossible to change the mind of the latter.

The people whose minds were most susceptible to change were the people that
would not watch the ads. These would be the moderates, fence-straddlers, or
undecideds. Thus, the law of minimal effects- if, by effect, one means changing
the viewers mind.

Changing Political Ads:

Eventually, when this law became known, politicians, acting on the advice of
those who had studied marketing and advertising, changed the way political ads
were presented on television.

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Rather than buy large segments of time to explain the issues, candidates began
hiring marketing experts and running one-minute commercials. The more
sensational or eye-catching these commercials were, the better. The reason was
that if they were sensational or eye-catching then the politically apathetic might
still pay attention to them. The fact that they were brief (three minutes at the
most) helped because the people you needed to reach were not that interested in
politics.

Daisy Girl Commercial:

Perhaps the best example of this approach is the classic political ad referred to as
the Daisy Girl Commercial. It was an ad for the Democratic presidential nominee
Lyndon Johnson. It created such a furor; it ran on television only one time.

In the opening scenes of the commercial, a very young girl is strolling through a
field and picks a daisy. The girl begins to pluck the pedals from a daisy, and each
time she does a voice counts down another number from 10. When the girl plucks
the last pedal the voice reaches zero and a mushroom cloud goes off behind the
girl with the screen going all white (simulating an atomic-bomb explosion). At
this point, a voice comes on and says, “Vote Democratic in November.”

A few years later, Joe McGuiness came out with his book, “The Selling of the
Presidency.” On the book's jacket was a picture of a package of cigarettes with
Nixon's picture on the package. The message, simply put, was that television was
now being used to sell candidates the same way cigarettes and detergent were
marketed.

This was the beginning of the modern age of political advertising on television.
All of this was basically a result of the acceptance of the principle behind the law
of minimal effects.

So Television Has No Effect?

It would be incorrect to believe this. While television is weak, in the sense of

getting viewers to change their opinions, it still plays an important role as a
reinforcer. As mentioned above, people who like candidates often watch the ads.
These people are important to the candidate, who needs their votes. Television
can serve the important function of reminding them that the candidate is in a
battle and needs them to try to persuade others, and certainly to get out and vote.
In close elections, it could make the difference.

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2. Historic Presidential Debate Moments

Are they really debates? Most commentators think presidential debates aren't
really debates at all. They are more like simultaneous press conferences.

Why do so many people watch them? They don't seem to be paying much
attention. Hardly anyone who has ever watched a presidential debate could
remember a substantive point made by one of the candidates.

As a professor, you may have the answer by asking a similar question about
students. Ever wonder why some students come to class and sleep, or talk to their
neighbor, or work on a crossword puzzle, or work on homework in other courses?
Why do they bother to come if they are not going to pay attention? Perhaps
citizens watch presidential debates for the same reason some students come to
class: in the event something memorable happens.

Those viewing the debates are not really engaged in the debate, they are waiting
for something to happen- the kind of thing that will be talked about at work the
next day-and they want to be able to say "I was watching that!" Likewise, some
students are not really engaging themselves in a lecture or discussion. They are
merely waiting for the professor to make a particular announcement such as “The
exam has been postponed," or “This will definitely be on the exam."

It's just a theory. That being said, here are some memorable moments from some
presidential debates (the kind that make people glad they watched).

Ford vs. Carter:

1976 - One of the reporters on the panel of questioners asked President Ford about
something relating to the Soviet domination of Eastern Europe. In Ford's
response there he explained that under his administration was no Soviet
domination of Eastern Europe. Since this was clearly incorrect, the reporter
repeated the question only to get the same response from Ford.

The press hounded Ford about this for about two weeks after the debate. He
finally admitted it was basically a mistake.

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The Ghost of the 1960s Debate:

As noted in this chapter, those listening to the 1960 presidential debates on the
radio thought Nixon won. He had won debating awards in college. Those
viewing it on television thought Kennedy won. In subsequent debates with most
people watching them on television, the lesson was clear: It doesn't matter what
you say, it is how you look (or project).

Thus, when Ford made this mistake during the debate, he probably thought (no
one knows for sure) it would be easier to "explain away" his answer than to admit
to an audience of millions that he had made a fundamental mistake.

Carter vs. Ford

1976 - In the debates with Ford, Carter also committed a gaffe. At one point, he
explained that he had talked with his daughter Amy (then just a young girl) about
nuclear disarmament. While Carter may have been trying to appear to be a family
man or sympathetic to young kid's fears, it did not come across that way to many
viewers. He was ridiculed about it in the press.

Carter vs. Reagan

1980 - Perhaps the most memorable moment in President Carter's debate with
Ronald Reagan was Reagan's line during his summation "Are you better off now
than four years ago?" This was a brilliant strategy since he knew the answer for
most of those viewing would be "no," and he was appealing to the tendency of
most voters to engage in retrospective voting. (See the Lecture Suggestion for
Chapter Six).

Reagan vs. Mondale

1984 - Rumor has it that Reagan's staff did not want him to debate Walter
Mondale in 1984. First, Mondale was an experienced politician, and Reagan was
getting along in years. Also, there was no rule you had to debate. While it is true
there is no rule requiring debating, it has practically become institutionalized now.
Furthermore, Reagan had been dubbed the "great communicator," and apparently
he believed he was. He decided he would debate Mondale. There was one
condition: Mondale had to refer to him during the debate as "President Reagan."

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Why "President" Reagan?

As discussed Chapter Six about public opinion, how questions are worded makes
a difference. The same could be said with titles in a debate. Usually when a
challenger (in this case Mondale) debates an incumbent, you do not want to
remind the viewers that the person you are debating is president. To keep
reminding the viewers of that would probably not help you win the debate as
some people respect the presidency regardless of who is president, and you would
be reminding people of this. (Reagan did not refer to Carter as "President Carter"
in his debate.)

So again, the ghost of 1960: It is an image thing, or in this case, how you are, in
this case, projecting yourself compared to the person with whom you are sharing
the stage.

What Happened?

During the debate, Reagan stammered a great deal. At one point, it went on for
several seconds (seemingly an eternity) and was quite noticeable. The result was
a great deal of press and attention the days following the debate on Reagan's age.
Perhaps he was too old to be president and, incapable of making important snap
decisions. (Reagan consultants must have been thinking, we told you so.) Nancy
explained that in preparing for the debate, Reagan's handlers had treated Reagan
as if he were preparing for a final exam--cramming all kinds of facts in his head.
According to her, what his consultants should do is "let Reagan be Reagan."

What Happened Next?

In the next debate with Mondale, everyone was wondering how Reagan would
appear. Would his behavior raise the age issue again? Early on in the debate,
Reagan won over the viewers by bringing up the age issue himself. In a self-
depreciating and humorous way he stated that he knew the age issue had been
raised and he wasn't going to get into it because he didn't want to mention the
youthful inexperience of his opponent (Mondale). Even Mondale laughed.
Reagan was Reagan again.

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Bush v. Dukakis

1988 - Prior to this debate, Dukakis had been described as a technocrat. At the
Republican national convention, Bush said that while Dukakis might be able to
make the trains run on time, Dukakis' problem was that he didn't know where the
trains were going.

That has to be understood to get the importance of what happened in Dukakis'

debate with Bush. Early on in the debate, Bernard Shaw, a reporter with CNN,
put a rather surprising question to Dukakis. Dukakis had taken a stand against the
death penalty, and Shaw asked him if his wife were to be raped and murdered,
would he want the person who did it to be put to death.

Now, to most people this would be seen as an inappropriate way to ask about the
death penalty (by having millions of viewers imagine your wife being brutally
raped and murdered). This was Dukakis' chance to show some sprit and that he
was not just a walking encyclopedia. Yet, Dukakis' response was quite reserved,
and he merely reiterated his anti-death-penalty position. The Bush contingent
must have been thinking, we told you he was a technocrat. After this, Dukakis
never seemed to be able to warm-up to the voters.

Vice Presidents Debate Too - Quayle vs. Bentson:

1988 - There was a memorable moment in the vice presidential debate in 1988
between Dukakis' running-mate (Benston) and Bush's (Quayle).

Usually there is one debate between the vice-presidential candidates. (Dole

debated Mondale in 1976 and came across with a very negative image, which he
had to overcome when he was a presidential debater in 1996.)

Quayle had come under intense scrutiny after being named as Bush's running-
mate. Many wondered why Bush selected him. Probably, for a variety of
reasons. He was young, attractive, and a staunch conservative, and he had been in
the U.S. Senate. The "young and attractive," along with his stint in the Senate
made him, in some people's eyes, comparable to John Kennedy.

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 During the debate, Quayle made a passing reference to John Kennedy, as if, some
would argue, to remind viewers of his similarities with Kennedy. At that point,
Benston (who, some say, had prepared for any such comparison Quayle might
make) said to Quayle, "Senator, I knew John Kennedy. John Kennedy was a
friend of mine. You're no John Kennedy."

So devastating was the line that many people were said to grumble that they
wished Bentson was the Democrats' presidential candidate and Dukakis his
running-mate.

Bush vs. Clinton vs. Perot:

1992 - The first thing to note about the presidential debates this year was the
presence of three candidates. It is said that the Clinton contingent welcomed
Perot in the debates because they felt that most of those that might switch their
allegiance during the debate would switch from Bush to Perot (making it easier
for Clinton to win).

In any case, Clinton was able during the negotiations over the format of the
debates to get a town meeting type of debate. Clinton was in his element in this
type of setting, and it showed.

What is usually remembered about this debate is how stiff Bush appeared. At one
memorable point viewers saw him glance at his watch as if to say to himself,
"When is this thing going to be over!"

3. Bias in the Media

Students often arrive in class thoroughly convinced that the media is biased. A
good assignment that could last a week or two or could be continued throughout
the term would be the following:

Divide the class up into those that will look for bias on the evening news, a major
newspaper, and local newspapers. (You could, if you have enough students, add a
cable news program and a newsweekly like Time or Newsweek.)

Students are to watch or read for bias and whenever they spot it, bring it to class.
A period of class time (depending on how much time you want to devote to this)
could be set aside (say, during the last class period of each week) to present these
biases to the class.

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 The first thing to establish is "Is it an example of bias." Be careful that students
bringing the material don't feel threatened by raising this question. This can be
done by pointing out how difficult it is to establish bias. Of course, it would be an
excellent opportunity to demonstrate the different types of bias.

Your students will probably be surprised at the difficulty in establishing bias and
the fact that ideological bias is not as prevalent as they thought.

LIST OF TRANSPARENCIES

Each transparency listed is followed by the Text Figure (or Table) number, followed by
the text page.

T15 Primary Sources of News, 9.1a, 276

T16 Most Credible News Source, 9.1b, 277

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128
CHAPTER TEN

Electing the President

OVERVIEW

Since the 1970s, presidential primaries have taken on added significance. The primary
phase of the campaign is long. Party activists and the media are advantaged by it.
Change is unlikely. General election campaigns are misunderstood. Election outcomes
are largely determined by prior events. Prior to the campaign, most voters have made up
their minds (based on party identification and government performance). This explains
Clinton's victories in 1992 and 1996.

LEARNING OBJECTIVES

1. Explain why GOP opposition to Clinton was so vigorous and how that opposition,
along with Democratic divisions, frustrated many of his important policies, such as
national health care.

2. Summarize the growth of the primary process as well as the respective strengths and
weaknesses of that process (both procedural and political concerns).

3. Explain the roles of party activists and the media in the primary process, noting both
the negative and positive implications that flow from those roles.

4. Explain the importance of balancing the ticket regarding the selection of the vice-
presidential nominee.

5. Discuss the operation of and controversy surrounding the Electoral College.

6. Itemize those factors affecting voting behavior in presidential elections, including

party identification, issues, candidates, government performance, the media, and the "deal
of the cards" (social and economic realities that impact every campaign).

7. Analyze why the issue of candidate personality is often an overrated principle in a

presidential campaign.

8. Explain how the "deal of the cards" strongly influences the outcome of a presidential
campaign. Cite some historical examples.

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9. Summarize the issues that hurt the Democrats during the 1980s and explain how
Clinton was able to defuse some of these issues in 1992 and 1996.

KEY TERMS

caucus party image

closed primaries political activist
electoral vote popular vote
honeymoon primary election
matching funds prospective voting
open primaries retrospective voting
party identification semi-closed primaries
winner-take-all voting

OUTLINE

I. The Nomination Process

Unlike the case in many other democracies, party meetings (caucuses) and party
elections for nominees (primaries) in the United States are open to every citizen.
The process for selecting delegates to the national convention is, too.

A. Caucuses

In caucus states, the nomination process begins in precinct meetings. Here,

delegates are chosen for the next level and then the next, until a state's final
delegation of delegates is chosen to attend the national convention.

Turnout for precinct meetings is, typically, in single digits.

B. Primaries

Primaries differ from state to state (closed, semi-closed, open, and blanket).

The type can matter, as was the case in 2000. John McCain's early strength in the
primaries was partially due to his appeal to independents. Thus, he fared better in
semi-closed primary states.

C. Evolution of the Nomination Process

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 The direct primary became popular during the Progressive Era. Still, primaries
did not become popular in presidential elections until after Hubert Humphrey won
the Democratic nomination in 1968 having never entered a primary.

In 2000, all of the Republican delegates and about 80 percent of the Democratic
delegates were selected in presidential primaries. The twenty in the Democratic
Party are awarded to super-delegates.

D. Financing Nomination Campaigns

Most presidential candidates (if eligible) accept federal matching funds during the
primary phase of the campaign; however, Steve Forbes and George W. Bush
(both Republicans) refused these in 2000.

E. Strengths and Weaknesses of the Nomination Process

1. Procedural Concerns

One complaint about the process is that it starts too early and lasts too long.
Some candidates declare and drop out of the race without being noticed by very
many voters. Because of the length of the process, every wart of each candidate
has been highlighted to the point of disillusioning the voters.

Those supporting the system reply that the early beginning gives established
outsiders a chance to gain recognition. Also, a long campaign gives voters a
clearer look at the character of the candidates. The argument goes back and forth,
some emphasizing the good of the process and others the bad.

2. Political Concerns

Another set of criticisms of the process has to do with those who gained power
when primaries became important.

3. Political Activists

These are people who are more interested in and committed to political issues
than are ordinary citizens. Primaries increased their importance because political
activists are more inclined than the average voter to participate. Also, they work
in campaigns and donate money to candidates.

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 Critics charge that these activists are not representative of the public in their issue
positions. Thus, candidates seeking the nomination take more extreme positions
than if all voters were participating.

Research shows that this criticism is an exaggeration.

Another result of activists’ involvement in the primary process is that the issues
that get debated are not always the same ones on the mind of the average voter.

4. The Media

The media are advantaged by the primary process and they are criticized for
focusing on trivial matters (such as who's winning, scandals, gaffes, and
campaign feuds) instead of what the election outcome will mean for the country.

In response, it could be said that if this is how the media behave it is because this
is what the voters want to read or hear.

A second criticism of the media is that it makes news by exaggerating campaign

events (like the New Hampshire Primary).

A third criticism is that the media have become players in the election instead of
mere observers. Rather than tell Americans what the political participants think,
the media now tell Americans what the media think.

In defense of the media, it could be said that they merely give a different
perspective to interpreting events from what each candidate's organization gives.

C. Who Nominates the Vice President?

Before the reliance on the primary process, vice-presidential candidates were

selected by convention delegates. Now, the selection is entirely in the hands of
the presidential nominee. They usually try to select someone that will help the
ticket get elected.

II. The General Election

The campaign for the presidency is officially under way on Labor Day. The
election is held the first Tuesday following the first Monday in November.

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 A. Financing the General-Election Campaign

Under the 1974 federal law, presidential candidates (those receiving a major party
nomination) could accept public financing to pay for their campaigns. Since that
law could first go into effect (1976), every major candidate has opted for this tax
money. In the 1990s, soft money also became important.

B. Spending in the General-Election Campaign

Campaign consultants oversee the expenditure of campaign funds. The most

important category of spending is for the media. An increasing trend in recent
years is reliance on negative advertising.

C. Designing General-Election Campaign Strategy: The Electoral College

Electors are who really elect the president and Vice president. To win a candidate
must get a majority of the electors. Presently, 270 is a majority of the 535
electors. There have been instances in which a candidate winning more nation-
wide popular votes did not end up president (for a variety of reasons).

Since all but two states give all their electoral votes to the winner of the popular
vote in the state, there is a large-state bias in how the Electoral College works.

In the past few decades, it appeared as if the Republicans had a lock on a good
number of states (shaped like an "L") guaranteeing it a large share of electoral
votes.

III. Voting Behavior in Presidential Elections

Voters do not often switch how they vote. This electoral inertia is why the media
have such a limited effect on the general election. Here are the factors that affect
when and how Americans make up their minds for whom to vote.

A. When Americans Decide

About one-third of voters have decided for whom to vote before the primaries.
By the end of the convention about one-half to two-thirds have made up their
minds.

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B. How Americans Decide

1. Party Loyalties

About two-thirds of Americans identify with the Democratic or Republican

parties.

African Americans, Jews, union members, urban residents, Southerners, and

Catholics tend to identify with the Democratic Party.

Businesspersons, small-town residents, Midwesterners, and Evangelical

Protestants tend to identify with the Republican Party.

2. Public Policies

Policy concerns are not a dominant factor in most elections. Most people just do
not know enough about policies or don't know where the candidates stand on
issues. One exception would be social issues that help form a party's image (such
as abortion, prayer in school, and gun control). Certain issues also can become
important during a campaign.

3. Government Performance

Voters are capable of basing a vote on how well they think the government is
performing. Performance voting demands less of voters than policy voting.

Voting by looking backwards at performance (retrospective voting) may be more

common than basing a vote on what is desired in the future (prospective voting).

4. The Qualities of the Candidates

An individual candidate’s personality can be a reason why voters might change

their vote from election to election. The traits that particularly concern voters are
intelligence, integrity, decisiveness, experience, and character.

There is, however, a tendency to overestimate the independent effect of the

candidates.

C. Limited Media Influence on Presidential Elections

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 The media have less effect on the general election than on primaries. This is due
to the fact that party identification and government performance are not at work
during the primary phase. In this situation voters are more inclined to turn to the
media to get their cues.

The media, political consultants, and the candidates themselves help perpetuate
the myth that the media play a major role in determining the general election.

Campaigns play the most significant role when elections are close from the
beginning.

IV. The Contemporary Presidential Election Scene

Since the New Deal Split in the 1960s, the Democrats were not able to win the
presidency twice in a row until the 1990s.

A. The 1970s and 1980s: Republican Lock

The so-called Republican lock on the presidency reflected developments that gave
Republicans a clear advantage on two of the four major factors determining how
Americans vote: performance and issues.

During the 1980s, Republican performance on policies beat Democrats on each of

these major fronts:

1. The Economy

By the late 1970s, Americans were in a strong anti-tax mood. Democrats stood
for the party favoring spending.

2. National Defense and International Relations

Vietnam reinforced the view in many voters' minds that Republicans were better
at handling foreign affairs.

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 3. Race

Lyndon Johnson’s (and the Democrats') support for the 1964 Civil Rights Act
hurt Democratic candidates. There is disagreement as to why.

4. Social Issues

In the 1960s, liberalism became associated with busing, welfare, and affirmative
action; later, it was also associated with sexual permissiveness and gay rights. A
majority of Americans took conservative stances on such issues.

V. The 1990s: Democratic Resurgence

Turnarounds in each of the four areas just discussed contributed to Clinton’s

victories in 1992 and 1996.

A. The Economy

The economy grew steadily during Clinton's first term and most Americans were
optimistic concerning the economy. Inflation and unemployment were very low
and the stock market was at an all-time high.

B. The Republican Congress

The Republican Congress was viewed as anti-environment (important to

independents), lacking in compassion (important to women), and made a serious
mistake in shutting down the government in 1995-1996.

C. The Gender Gap

If only men had voted in 1996, Dole would have won.

The gender gap is widely misunderstood. It is not a result of men and women
taking different positions on women's issue, rather, they differ over violence,
military force, and helping the disadvantaged.

The actions of the Republican Congress helped widen the gender gap.

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 D. The Issues That Weren't

Noticeable in the 1990s were issues that weren't important in the campaigns:
crime, welfare, immigration, race, and affirmative action.

Some say Clinton neutralized these issues through his strategy of triangulation.

E. Money

Campaign finance also influenced recent elections.

VI. The Y2K Election

The presidential election of 2000 highlighted the importance of the Electoral

College.

It also underscored the different roles played by the primary and general elections.

One question: Why didn't Gore--the expected winner--win? One theory is that
Gore was not able to take credit for the good of the Clinton years. Another is that
Gore suffered from the scandals that plagued Clinton. Finally, some think Gore
lost because of Gore.

VII. Beyond 2000

The results of recent presidential elections would indicate that we are now in a
seventh party phase, similar to the so-called era of no decision that prevailed from
the 1870s to the 1890s.

This can be a great place to open discussion on the 2000 presidential election.
CNN has an excellent video examining the entire scenario from start to finish:
"CNN- Election 2000." It would behoove any instructor to get this video. The
visual images and clips will reinforce the lecture material and offer the students a
final opportunity to ask questions.

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IDEAS FOR LECTURES OR DISCUSSION

1. Federalist 68

In this essay, Hamilton, writing as Publius, provides the theoretical justification

for the delegate’s design for electing the president and vice president: the
Electoral College. Below is a brief outline of the essay with significant or
provocative quotes that could be used to spark class discussion.

Also, the framers did not designate in the Constitution how electors would be
selected, but at least five times in this essay Hamilton expresses the view that
electors ought to be selected by the voters.

I. The method of selecting the president has not been criticized much by the Anti-
federalists. This is because it is such a well-crafted system.

"I venture somewhat further; and hesitate not to affirm, that if the manner of it be
not perfect, it is at least excellent."

II. In designing the system, the delegates were guided by the desire that the people
have a say in deciding who would hold this important office. This was accomplished
by giving the choice to some men chosen by the people for this special purpose (not
to a pre-established body of men, like Congress).

III. The framers also wanted to insure that that those making the decision would be
best capable of analyzing the qualities needed in a president.

"A small number of persons, selected by their fellow citizens from the general
mass, will be most likely to possess the information and discernment requisite to
so complicated an investigation."

IV. The system, as designed by the framers, also provides an efficient check on mob
violence and disorders. This was facilitated by requiring that the electors meet in
their respective state capitals.

V. It was highly desirable that every obstacle should guard against cabal, intrigue,
and corruption.

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 These problems were most likely to come from foreign nations seeking to
influence the election outcome. To prevent this, the framers kept the decision
from any pre-established body (which foreign agents could seek to influence. By
constitutionally excluding office-holders from serving as electors and by the never
having electors meet all in one place.

"Thus, without corrupting the body of the people, the immediate agents in the
election will at least enter upon the task, free from any sinister bias."

VI. Another desire was that the president be independent of all but the people. Had
the Congress elected the president, he would hardly have been independent of the
legislative branch.

VII. Each state has a number of electors equal to its representation in Congress
(House and Senate). To win the presidency, a person has to receive a simple majority
of all the electors. If no person does receive a simple majority, the House of
Representatives will select from the top five [changed to the top three with the 12th
Amendment] electoral vote-getters (with each state casting one vote).

VIII. This process will result in the office seldom going to an incompetent. It meets
the true test of a good government: the tendency to produce a good administration.

"It will not be too strong to say, that there will be a constant probability of seeing
the station filled by characters pre-eminent for ability and virtue."

IX. The vice president is to be selected in the same manner (the person who comes in
second in the presidential election is elected vice president). (This was changed with
the 12th Amendment).

X. The vice president is not superfluous.

Someone was needed to break tie votes in the Senate, and the vice president can
do this. Also, by being elected in the same manner as the president, he makes a
good successor to the presidency.

2. Electoral College Myths or Half-Truths

The Electoral College is misunderstood by many people, including political

scientists (see Danny M. Adkison and Christopher Elliot, "The Electoral College:

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 A Misunderstood Institution," PS March 1997.) Here are some myths concerning
it.

A. The Electoral College was designed late in the Constitutional Convention when the
delegates could not agree on other methods for electing the president.

Actually, within the first two weeks of the Convention, James Wilson of
Pennsylvania proposed electing the president by special electors.

B. The Electoral College system prohibits the election of a president and a vice
president from the same state.

This falsity comes from the language of the Constitution, which prohibits an
elector from casting both of his votes for individuals from the same state. It does
not, however, prevent the election of a president and a vice president from the
same state.

C. Three times the Electoral College has elected a president that got fewer popular
votes.

Not exactly. This has happened only once (1888, when Cleveland got more
popular votes but lost to Benjamin Harrison due solely to the electoral college).
The other two times that are usually lumped in with the 1888 election are the
1824 and 1876 elections.

In 1824 Andrew Jackson got more popular votes than J.Q. Adams, but it was the
House of Representatives that elected Adams (not the electoral college outright).

In 1876 the Democrat Samuel Tilden got more popular votes than Hayes, but it
was a special commission that allocated disputed electoral votes to Hayes, giving
him the victory (again, not the electoral college outright).

D. The Electoral College system stipulates that the plurality winner of a state's
popular votes gets all of the state's electoral votes.

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 The framers did not stipulate how electors would be chosen. The method of
selection was left to states. All but two states use the general ticket system (the
plurality winner of a state's popular votes gets all of the state's electoral votes).
This helps produce the risk that the person winning the national popular vote loses
the election, but it is not required by the Constitution. Two states, in fact, don't
use it (relying on the District Plan instead).

E. The framers designed the Electoral College because they didn't think the public was
intelligent enough to elect a good president.

There was some sentiment similar to this expressed at the convention. But
probably the primary concern with popular election of the president was the
significant population differences among the states. In other words, it was a
political decision. To rely solely on population would have guaranteed that the
president (at least, early on) would have been selected by the three or four most
populous states. Under this arrangement, it would have been difficult to get nine
states to ratify the Constitution.

F. Electors can vote any way they want.

Technically, they probably can. But of the thousands of electors who have cast a
vote for president and vice president, very few (about .04 percent have "defected."
This is due to the fact that the parties usually select people to be electors due to
their faithfulness to the party. Furthermore, the Supreme Court has ruled (Ray vs.
Blair, 1952) that states may restrict the discretion of electors).

3. The American Commonwealth

In the latter part of the nineteenth century, Lord Bryce published “The American
Commonwealth,” and he devoted one chapter to why great men are not elected
president of the United States. Your library probably has the book, and you could
take several portions of the chapter and use it for a stimulating discussion. M.
Krasner returned to Bryce's theme in an article published in Volume 9, No. 4 of
“Presidential Studies Quarterly.” Here are a few points made by Bryce and
Krasner.

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A. Many are Eligible but Few Great Men are Chosen

Since the heroes of the Revolution (Jefferson, Adams, Madison, etc.), no person
except General U.S. Grant has reached the presidency whose name would have
been remembered had he not been president.

B. First-Rate Ability Not Attracted to Politics

Bryce asserts that, unlike most European countries, the number of people with
first-rate ability are not attracted to politics. Several factors explain this.

1. Non-Ideological Politics

The United States does not have the burning questions in politics to attract those
with a passion for politics.

2. Bureaucracy

The United States does not have the best organized bureaucracy for drawing
people into government or for grooming those already there.

3. Other Pursuits

People of talent are more inclined to go into business than politics.

4. Congress vs. Parliament

The things a person needs to be good at to get ahead or be successful in Congress

(make deals, writing bills, etc.) are not conducive to running for president. The
way parliaments operate (with more of an emphasis on speaking and
administration) are conducive to entering the executive branch.

5. Eminence

Eminent men make more enemies and therefore make less desirable candidates in
America. In other words, when the party's choice lies between a brilliant person
and a safe person, the safe person is preferred. Parties are more interested in a
good candidate rather than a potentially good president.

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 6. Originality and Profundity

More so than European voters, American voters prefer the magnetic candidate but
see no need for originality or profundity.

7. Election Rules

Finally, election rules and other informal rules limit the pool of eligibles.
Technically, anyone who is 35, a natural born citizen, and has resided in the
United States for 14 years is eligible to be president.

Parties, however, look for candidates from large states or from regions where their
popularity would guarantee a large electoral vote. There is increasing emphasis
on looking presidential. (Note the story related in this chapter about Dukakis in
the tank; the authors fail to mention that voters scoffed at the ad also because
Dukakis looked ridiculous.)
Finally, how many people, want to undergo (along with their families) the intense
media scrutiny in order to possibly be elected president?

LIST OF TRANSPARENCIES

Each transparency listed is followed by the Text Figure (or Table) number, followed by
the text page.

T17 States in Proportion to Electoral Votes, 10.2a, 312

T18 Bill Clinton Won an Overwhelming Electoral College Majority in 1996, 10.3, 316

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144
CHAPTER ELEVEN
Choosing the Congress

OVERVIEW

Members of the House of Representatives are typically reelected at a rate of 90 percent or

higher. Citizens reelect the incumbent because they are so responsive to their
constituents demands. The rate of reelection for Senators is somewhat lower due to the
more diverse constituency they represent, their greater media aoverage, and their stronger
competition.

Why do Americans keep reelecting Congressman if they are so critical of Congress? The
answer has to do with the different standards by which Americans judge Congress and its
members.

The single-member district simple plurality electoral system dilutes the impact of
minorities in House elections. Attempts to draw district lines so as to correct for this has
been struck down by the Supreme Court.

LEARNING OBJECTIVES

1. Explain why Representative Margolies-Mezvinsky's vote in 1993 on Clinton's deficit

reduction plan was a supreme act of political courage and why that vote resulted in the
loss of her house seat.

2. Explain why, despite the framers' original intentions, Congress was not electronically
sensitive during most of the nineteenth century. Be sure to account for the rapid
turnover of congressional personnel.
.
3. Discuss the impact of reapportionment and redistricting upon congressional elections.

4. Analyze why party and incumbency are the two most influential factors affecting
House elections and why challengers have such difficulty in winning office.

5. Define and explain such key concepts as constituency service, the frank, ombudsman,
rotation services, and soft-money.

6. Demonstrate why Senate elections are more perilous that House elections.

145
7. Explain what national forces were at work in the 1994 midterm elections.

8. Evaluate whether the membership of Congress should or should not mirror the great
ethnic and gender diversity of the American population.

9. Review the dilemmas posed by majority-minority districting after the 1996 elections.

10. What were the significance for term limits in the cases of U.S. Term Limits, Inc. vs.
Thornton and Bates vs. Jones?

KEY TERMS

affirmative-action incumbency advantage

redistricting majority-minority
bloc voting districts
coattails national forces
constituent service ombudsman
constituent assistance professional legislature
district service reapportionment
filing deadline redistricting
frank rotation
gerrymandering

OUTLINE

I. The Electoral Evolution of the Congress

As outlined in Article I of the U.S. Constitution, voters elected Representatives

and state legislators elected Senators. The 17th Amendment allowed the voters to
directly elect Senators. Clearly, Representatives were to be more responsive to
the voters.

Turnover levels were as high as 50 percent in the Houseuntil the Civil War. This
was due to factors other than defeat in an election: the office, and location, were
not attractive and some states used rotation.

Today, members of Congress serve for so many terms that Congress is described
as a professional legislature.
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 In fact, this trend explains why some people advocate term limits, but it is because
members of Congress are so sensitive to voters that they serve numerous terms.

II. Reapportionment and Redistricting

The Constitution mandates a census every 10 years after which seats in the House
are apportioned and states, if necessary, redistrict (redraw district lines). Lines
may be drawn to favor a candidate or party (gerrymandering). Racial
gerrymandering has been ruled unconstitutional by the courts.

The Supreme Court has also ruled that districts must be equal in population (as
close as possible). Recent population shifts have favored Republicans in the
House.

III. The Congressional Nomination Process

Most candidates for Congress are nominated by the primary system. The hardest-
fought primaries occur in open seats. Few incumbents lose primaries.

IV. Contemporary House Elections

Party affiliation is the most important factor in getting elected to the House of
Representatives. Iincumbency is second. In House elections, 70 percent or more
of all voters who identify with a party typically support the House candidate of
that party.

A. Party Decline

Incumbency has increased in importance in recent decades primarily because of

the weakening of parties at the national levels.

B. Changing Representational Behavior

Members of Congress perform several functions other than make laws: district
service and constituent assistance. These constituent services, by benefiting lots
of people (regardless of party) and being more prevalent today, help incumbents
get reelected.

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 C. Expanding Member Resources

The growth in size of congressional staffs, increasing perks (including the

franking priviledge), and technological advancements have also helped
incumbent reelection rates.

D. Campaign Funds

The role money plays in the election of incumbents is complicated. Part of the
reason is the law of diminishing returns: Money matters, but at some point, it
stops making much of a difference.

There is a hidden impact of campaign money: Since it takes so much to run for
office, many don't try. In other words, money doesn't buy an election, it keeps
competition away. It also hinders voter turnout.

The public is clearly upset with campaign financing. The most talked about
reform is public financing of congressional elections. One point often missed is
that the current system does allow challengers to offset the current financial
advantage held by incumbents – who are writing the campaign finance laws.

E. More Responsive Incumbents

One reason members of Congress are reelected today is because of the emphasis
they place on pleasing constituents (more than ever before).

Technological advancements have made it much easier for members to stay close
to their constituents. The fact that members votes are watched more closely is
another factor. Finally, with parties weak, members are freed up to vote as they
want, making them more responsive to constituents' wishes.

IV. Contemporary Senate Elections

There are several ways in which the Senate differs from the House of
Representatives, and they explain why reelection rates are lower for Senators.

A. Party Competition

Because Senators represent entire states, their constituency is usually more

diverse and that makes for stronger party competition.
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 B. Uncontrolled Information

Senators receive far more media coverage than Representatives. Because of this,
Senators ard more vulnerable to attack.

C. Better Challengers

The Senate is seen as a more attractive office and thus it attracts better
challengers. Also, there are only 33 seats up for election every two years (unlike
435 in the House), meaning fewer credible challengers are needed for competitive
challenges.

D. High Ambitions

Senators (and President) lay the groundwork for this, they must get involved in
more controversial issues, making them vulnerable to attack.

V. National Forces in Congressional Elections

Forces means many members of Congress have concerns that are parochial and no
longer tied to national trends.

A. National Forces in the 1990s: A New Era?

The 1994 congressional elections (in which 57 Democrats lost) were somewhat of
a throwback to earlier times (when incumbents were not as insulated), but not as
much as one would think. Ninety percent of incumbents won! Republicans in
Congress are now performing as Democrats had to win reelection.

B. The 2000 Congressional Elections

Republicans retained control of the House and Senate (but just barely--and only
by the vice president’s vote in the Senate). Exit polls showed that voters may
have been influenced by national trends.

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 C. Why Do National Forces Appear to Be Growing Stronger?

Two reasons may explain why congressional elections are becoming more
nationalized. One is more unified political parties. Another is soft money and
independent expenditures (used to promote national issues).

VI. Do Congressional Elections Produce a Representative Body?

The Congress is overwhelmingly composed of white male

professionals. For some, this failure to be descriptively representative of the
population is unacceptable. Others argue that you don't have to be a woman (to
use one example of a group underrepresented) to represent women's interests.

A. Women

Societal prejudice against women serving in public office is diminishing. The

most common base for congressional candidates is the state legislature, and
women are making rapid progress in this arena.

B. Minorities

The prospects for further lessening of minority underrepresentation in Congress

are less favorable than for women, especially the prospects for African-
Americans. African-Americans have the most success when a district is mostly
made up of African-Americans.

Federal law sought to speed up the representation of minorities by mandating the

creation of majority-minority districts (sometimes called affirmative-action
redistricting). The Supreme Court has declared some such efforts
unconstitutional racial gerrymanders.

Democrats are ambivalent about such districts since they are philosophically in
favor of them, but it also costs them seats won by Republicans.

Some question the desirability of such districts because it locks in the number of
minorities that can win (by block voting), and it places them in a kind of political
ghetto.

C. Elections, Parties, and Group Representation

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 One reason minorities go underrepresented in Congress is due to the single-
member district, simple plurality rule.

In addition, the weakened party structure today creates an environment in which

candidates fend for themselves without any regard for how race might further the
party's interests.

IDEAS FOR LECTURE AND DISCUSSION

1. The notion of term limits, mentioned in this chapter, has been very popular in recent
years. Although the Supreme Court ruled that States could not set term limits on their
members of Congress (U.S. Term Limits, Inc. v. Thornton, 1995), the push for such
limits continues at the national level.

Below are five reasons Publius (Federalist 72) gave for why the delegates to the
Convention decided against term limits on the president. The 22nd Amendment
(ratified in 1951) did put a limit on the number of times a person could be elected
president. The arguments Publius gave would make for good class discussion.
Do the argument Publius made concerning term limits on the presidency apply to
Congress, too?

A. "One ill effect of the exclusion would be a diminution of the inducements of

good behavior."

Publius argues that a person takes more interest in their work if they know that by
doing a good job they will be rewarded. If they know that no matter how they
perform, they must leave office at a designated point, they will not take their job
as seriously. Publius concludes, "The most to be expected from the generality of
men, in such a situation, is the negative merit of not doing harm, instead of the
positive merit of doing good."

B. "A second ill effect of the exclusion would be the temptation to sordid views,
to peculation, and in some instances, to usurpation."

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Publius argues that term limits tempt politicians to engage in corrupt practices.
Realizing that they will soon be stripped of the position, they will be more
inclined to, as one delegate at the Constitution Convention put it, "make hay while
the sun shines." If a man has a lust for power or money, he might hold these in
check if by doing so he could get reelected. Take the temptation of reelection
away (which is what term limits do) and the temptations of ambition and avarice
can be overpowering.

Describing how it would be with term limits Publius explains, "But with the
prospect before him of approaching and inevitable annihilation, his avarice would
be likely to get the victory over his caution this vanity, or his ambition."

C. "A third ill effect of the exclusion would be thedepriving the community of the
advantage of the experience gained by the Chief Magistrate in the exercise of his
office."

Publius continues, "Experience is the parent of wisdom." "Can it be wise to put

this desirable and essential quality under the ban of the Constitution, and to
declare that the moment it is acquired, its possessor shall be compelled to abandon
the station in which it was acquired, and to which it was adapted?"

D. "A fourth ill effect of the exclusion would be the banishing men from stations
in which, in certain emergencies of the State, their presence might be of the
greatest moment to the public interest or safety."

A good example of what Publius is referring to is the election of Franklin

Roosevelt in 1940. Just as the war in Europe was really heating up, would it have
been wise to have a prohibition that made Roosevelt ineligible to continue as
president? Clearly the public wanted him to remain president (being the only
president elected more than twice to that office). In fact, one such emergency
mentioned by Publius is war: "...it is evident that a change of the Chief
Magistrate, at the breaking out of war, or any similar crisis, for another, even of
equal merit, would at times be detrimental to the community, inasmuch as it
would substitute inexperience to experience, and would tend to unhinge and set
afloat the already settled train of the administration."

E. "A fifth ill effect of the exclusion would be that it would operate as a
constitutional interdiction of stability in the administration. By necessitating a
change of men, in the first office of the nation, it would necessitate a mutability of
measures."
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 The reason why a change of men would cause a change of policy is because
Publius is recognizing that when new people come into office they are going to
think differently, and even if they don’t they still want to leave their unique
imprint behind.

Publius concludes, "And we need not be apprehensive there will be too much
stability, while there is even the option of changing; nor need we desire to
prohibit it from continuing their confidence where they think it may be safely
placed, and where, by constancy on their part, they may obviate the fatal
inconveniences of fluctuating councils and a variable policy."

2. In 1994, Republicans took control of the House of Representatives for the first time
since 1953. Yet, as reported in this chapter, 90 percent of the incumbents running were
reelected. How is this possible?

A. First, not all incumbents seeking reelection made it to the general election.
Some were defeated in the primaries. Thus, if they were included, the percent
would be lower.

B. There were a good number of incumbents that decided not to run for reelection.
Congress has a good retirement package. Of course, one does not know if those
members retiring did so because they felt they might not get nominated or
reelected. Obviously, there were probably some that thought this. Were they to
be included in the calculation, this would lower the percent of incumbents getting
reelected.

C. It is impossible to predict how many open seats there will be every two years
(when Representatives are up for reelection). In an open seat, there is no
incumbent running for reelection. Hence, there is no incumbency factor to help
explain who wins. The factor replacing incumbency in determining who wins is
money. Money plays a significant role in who wins in open seats. Which party
typically has more money to spend in campaigns? Republicans. Thus, it should
come as no surprise that Republicans won most of the large size of open seats
(52).

D. Finally, 34 incumbents who made it to the general election did lose. They
were all Democrats.

153
LIST OF TRANSPARENCIES

Each transparency listed is followed by the Text Figure (or Table) number, followed by
the text page.

T19 The Advantage of Incumbency Surged in the Mid-1960s, 11.2, 348

T20 The North Carolina Redistricting Plan, unnumbered, 371

154
CHAPTER TWELVE

The Congress and Its Work

OVERVIEW

Americans tend to give Congress low ratings, yet they overwhelmingly reelect
incumbents. The reason is Americans hold Congress and Congressmen to two different
standards. They want Congress to solve the nation’s major problems, and they want
Congressmen to solve individual constituent problems. Congressmen are good at the
latter (since it helps guarantee their reelection), but that leaves little time for the former.

The structure of Congress reflects this tension. It is a compromise between what is

needed to get the job done and what is needed to get reelected. In the early and mid-
1990s, voters have demonstrated their dislike of Congress by calling for term limits.

LEARNING OBJECTIVES

1. Explain why Congress failed to pass a bill authorizing enterprise zones in the aftermath
of the Rodney King incident.

2. Explain why Americans do not have a high opinion of Congress as an institution but
do have a positive view of their own members of Congress.

3. Summarize the organizational structure of Congress including the relationship

between the two houses.

4. Delineate and explain the function of congressional staffers and congressional support
agencies.

5. Analyze the interaction among geography, professionalism, and electoral

independence, explaining how collectively they create the incentive and the opportunity
to serve specific constituencies.

6. Explain how congressional parties and the committee system contribute to the
operation, organization, and legislative flow in Congress.

155
7. Review the various stages in how a bill becomes a l aw noting where a bill can die and
why.

8. Summarize the respective criticisms of Congress, noting what Americans do and don't
like about the institution and/or its members.

9. Understand the respective arguments that comprise the controversial issue of term
limits.

KEY TERMS

appropriations process markup

authorization process minority leader
bicameral multiple referral
caucus president pro-tempore
cloture rule
conference select committee
conference committee seniority
delegate Speaker
discharge petition sponsor
distributive tendency standing committee
distributive theory suspension of the rules
filibuster trustee
informational theory unanimous consent
log-rolling agreement
majority leader whip

OUTLINE

I. Congress--The First Branch

Surveys consistently report that only a minority of Americans trust the Congress
to do what is right or have confidence in Congress, and they view members (other
than their own party) as having ethical standards only a bit higher than car
salespersons.

This view is puzzling given the fact that members of Congress work hard, don't
get as much pay as those in the private sector, and are very powerful, and
Americans view their own party members positively.

156
II. The Organization of Congress: Parties and Committees

Congress is composed of a House and Senate. The two chambers have developed
a division of labor and a party leadership structure.

III. Congress--The Context

A. Geography and Constituencies

Because members of Congress represent distinct geographical areas, policy

decisions reflect this.

B. Professionalism and Constituencies

Members of Congress are professionals. They care deeply about reelection, and
they are attentive to the needs, interests, and values of their districts. Thus,
constituency interests trump other forces - party, ideology, or national interest.

C. Electoral Independence and Constituencies

Members of Congress today do not rely heavily on the party for their continuance
in Congress. For that, they rely on themselves by serving their constituents in
such a way that they stay popular and receive sufficient campaign contributions.

IV. Inside Congress

There are two major organizational features of the Congress, the party structure
and the committee structure. Not mentioned in the Constitution, these structures
have been developed by elected officials to meet their needs. Both are more
important in the House than the Senate (which operates more informally).

A. The Congressional Parties

Parties are a principal organizing force in the Congress.

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1. Speaker of the House

The Constitution stipulates that the House shall elect a Speaker. In practice, the
Speaker is always the leader of the majority party in the House. The Speaker
ordinarily does not vote.

From the end of Reconstruction to the turn of the century, the Speaker often
rivaled the president as the most powerful public officialin the United States.
Their powers in the House were such that it could accurately be said that Speakers
ruled.

A revolt began in 1910, stripping the Speaker of several significant powers. The
office of Speaker never regained the powers removed at this time.

2. Party Leadership: House

The office of majority leader was created in 1899. The majority leader votes, and
is responsible for the day-to-day leadership of the party.

The minority leader (created in 1883) performs the functions of the majority
leader but for the minority party.

The majority and minority leaders are assisted by whips; whose job it is to link
the leadership to the party rank and file.

Some members serve on party committees that discuss issues, develop the party
program, and sometimes endorse legislation. These committees are the
Democratic Steering and Policy Committee, the Republican Policy Committee
and the Republican Steering Committee.

Members in both parties participate in their respective party caucus (Republicans

call theirs the Conference). These elect the party leadership and approve the
slates of committees nominated by the Steering Committees.

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3. Party Leadership: Senate

Constitutionally, the vice president is the presiding officer of the Senate. He can
only vote to break a tie. The Constitution also provides for a president pro-
tempore, who presides in the absence of the vice president. Senate leaders are not
as powerful as their House counterparts. Since one member using a filibuster
(which takes 60 members to stop) can delay action, party leaders work to hammer
out unanimous consent agreements.

4. Ups and Downs of Congressional Parties

While the congressional party leadership today is not as strong as it was in the
period before the revolt against Cannon, it is stronger than it was for a half
century after the revolt.

Several reforms initiated in the mid-1970s strengthened the Speakership in

particular and the party leadership in general. For example, who chaired a
committee was no longer determined solely by seniority. When Republicans won
the Congress in 1994, the Republicans united behind Speaker Gingrich in a strong
show of party support.

What explains these shifts? Careerism (beginning around the turn of the century)
made members more independent of the leadership. Another reason put forth by
one researcher is that the more homogeneous the parties are, the stronger the
leadership.

A strong party in Congress, in spite of the electoral independence of members,

helps members in two ways: (1) coattails and (2) the low information of voters
means they often rely on party performance for their voting cues. Some members
also see the party apparatus as a way to getting things accomplished about which
they feel strongly.

B. The Committee System

Congress does its business through committees. Only about ten to fifteen percent
of the bills introduced in Congress pass because most never make it out of
committee (even though there is a procedure, the discharge petition, for removing
them from committee). In the 106th Congress there were 19 standing committees
in the House and 17 in the Senate.

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1. House Committees

Probably the three most important House committees are the Rules, Ways and
Means, and Appropriations. Ordinarily, a member serving on one of these
committees is not allowed to serve on other committees (an exception being the
Budget Committee).

Major policy committees deal with important policy areas--agriculture, armed

services, energy, and so forth. Usually, a member serves on only one, along with
a less important committee. (Democrats call them semi- exclusive; Republicans
call them blue).

Less important committees include housekeeping committees like Government

Reform and Oversight and committees with narrow policy jurisdictions like
Veterans' Affairs. Members may serve on two such committees. (Democrats call
them nonexclusive; Republicans call them white).

2. Senate Committees

Appropriations, Finance, Budget, and Foreign Affairs are major Senate

committees. Rules is a minor committee.

Each Senator may serve on two major and one minor committee, and every
senator gets to serve on one of the four major committees. Since Senators serve
on more committees than House members, they generally cannot be as specialized
as House members.

3. How Committees Are Formed

Each committee has a majority-minority ratio at least as favorable to the majority

as the overall division of the chamber. More important committees are stacked in
the majority party's favor.

Committee chairs go almost always to the most senior members of the majority
party. They exercise considerable independence.

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4. Committee Reforms

After committee chairs became very powerful in the 1950s, reforms were initiated
in the 1970s that spread power among committees and subcommittees more
evenly. While the effects are debatable, committees appear to be more responsive
to party influence.

5. Theories of the Committee System

Why has Congress delegated so much power to committees? There are two
prevailing theories.

The distributive theory has it that members give committees power so that they
can better serve their constituents.

The informational theory explains the transfer of power as necessary for reliance
on experts in policy areas.

The two theories are not incompatible.

V. How a Bill Becomes a Law

First, a bill must be introduced by a congressional sponsor. It will be referred to a

committee (or committees) and then to a subcommittee.

The subcommittee may hold hearings on the bill. After this the subcommittee
begins markup of the bill. The committee may repeat the hearing and markup
process. If a majority of the committee votes for the bill, it is ready to be
scheduled for floor debate.

In the House, some measures will be brought to the floor under suspension of the
rules. For most important bills, scheduling of a floor debate is done by the
powerful Rules Committee, which issues a rule specifying the terms and
conditions of debate (closed rule, open rule, or restrictive rule).

In the Senate, there is a greater reliance on scheduling by using unanimous

consent. For more important bills, intense negotiation is required among the
committee and party leaders.

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 Once passed by both chambers, the bill will be sent to a conference committee
(made up of House and Senate members) to iron out any differences in the House
and Senate versions of the bill. If ironed out, the bill is sent back to both houses
for approval.

The bill can now be sent to the president. But if this bill was for authorization of
a program, another bill will have to go through the same process appropriating
money for the program.

Of the approximately 12,000 bills introduced in Congress in recent years, only

about 600 became law around 5%.

VI. Evaluating Congress

A. Criticisms of Congress

The congressional process is lengthy and inefficient. Congress often produces a

compromise that leaves no one satisfied.

The congressional process works to the advantage of policy minorities, especially

those content with the status quo.

Members of Congress are constantly tempted to use their positions to extract

constituency benefits, even when important national legislation is at stake.

The congressional process is such that sometimes the very process of passing
legislation ensures that it will not work. Why? Political scientists call it the
distributive tendency. This means that every member of Congress wants a "fair
share" of the federal pie for his or her district. The result is that tax money goes
to areas that don't really need it. Federal programs often fail because they are not
focused on where they will do the most good, and resources are not sufficiently
concentrated to have a major impact.

B. Why Americans Like Their Members of Congress So Much More Than

Congress Itself

Americans don't like Congress because they don't think Congress solves the major
problems facing the nation. They also don't like the way Congress operates.

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 Yet, Americans overwhelmingly reelect members of Congress. The reason is that
they hold individual members responsible for things other than solving the nations
major problems. For members to be liked they must respond to specific demands
of their constituents. Ironically, in meeting this responsibility, members are not
able to address the nation's major problems.

C. Reforming Congress: Limit Their Terms?

In the early 1990s, term limits became very popular with the public. Several
states placed them on members of the state legislatures. When states also placed
them on their members of Congress, the Supreme Court declared them
unconstitutional.

Proponents of term limits argue that incumbents are unbeatable and their electoral
success is illegitimate. Actually, incumbents win because they are so responsible
to their constituents.

The irony is that legislatures perform badly often because legislators perform so
well. This irony is explained by the different standards used to gauge legislatures
and legislators.

The argument for term limits is unpersuasive. They do not address the real
problem with Congress: professional politicians chosen in single-member districts
by simple pluralities motivated by a desire to please the special interests of their
districts.

IDEAS FOR LECTURE AND DISCUSSION

1. This chapter does not mention the qualifications of members of Congress. Here are
some interesting point that could be made on this topic. These can also be tied in with (as
will be shown below) the concluding topic of the chapter: term limits.

Constitutional Qualifications

A. The Constitution lists the qualifications of the members of the Congress.

House "No person shall be a Representative who shall not have attained to the
age of twenty-five Years, and been seven Years a Citizen of the United States,
and who shall not, when elected, be an inhabitant of that State in which he shall
be chosen" (Article I, Section 2, clause 2).

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Senate -"No person shall be a Senator who shall not have attained to the Age of
thirty Years, and been nine years a Citizen of the United States, and who shall not,
when elected, be an Inhabitant of that State for which he shall be chosen (Article
I, Section 3, clause 3).

Thus, there three requirements for being a member of the House or Senate: age,
citizenship, and residency.

Judging Qualifications

B. Article I, Section 5 states, "Each House shall be the Judge of the Elections,
Returns, and Qualifications of its own Members."

What does this phrase mean? Does it mean that each house of Congress can
decide who is worthy of being a member of Congress. If this is so, then each
House would be able to add to the qualifications listed above.

This was the interpretation given to this clause for a good number of years. In the
early 1860s, Congress required duly elected members to take an oath that they had
not participated in rebellion against the United States. In 1900, the House refused
to seat a polygamist from Utah. In 1919, the House refused to seat a duly elected
Socialist.

In 1920, there was a man elected to Congress who was raised believing he was
Jesus Christ. His parents named him Immanual. While still a teenager, he tried to
rob a train, but was disarmed by the conductor. When he first arrived in
Washington the described the women living there as "so ugly, it makes a fellow
think he had died and woke up in Hades." Although the House did not try to deny
him his seat, the election of Immanual Herrick makes one wonder if the House
should not, if they thought they had the power, have done so (This fascinating
story is told in the book The Okie Jesus Congressman by Gene Aldrich).

Did this clause confer on each house of Congress the power to judge duly elected
members on qualifications other than those explicitly listed in the Constitution?

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In 1967, when the House voted to exclude incumbent Adam Clayton Powell from
taking a seat in the House, Powell sued. The House was upset, among other
things, with what was viewed by many as Powell's poor performance of his
congressional duties. Ultimately, the case reached the U.S. Supreme Court which
ruled in Powell's favor. The Court ruled that Article I, Section 5's grant to each
house to judge electionreturns was limited solely to the three specified in the
Constitution: age, citizenship, and residency.

It was this reasoning that was used to strike down states placing term limits on
their members of Congress (U.S. Term Limits v. Thornton, 1995).

Exclusion vs. Expulsion

C. In Powell v. McCulloch (1969), the Court did note that while the House could
not exclude a duly elected member, it could expel any member. Article I, Section
5 states, "Each house may...punish its Members...and, with the Concurrence of
two thirds, expel a Member."

Due to the norms of Congress, expulsion is rare. Members are not inclined to
expel a member that has been duly elected. The feeling is that if the voters want
to elect someone, they should not be denied their intent. Expulsion, to some
extent, makes the Congress look bad, and there is always the possibility that if
members are easily expelled, one might end up on the receiving end.

Framers Intent and Length of Terms

D. House members have two-year terms and Senators six. Here are the reasons
why.

House: Some delegates desired a one-year term for members of the House. There
was an adage well known to many at this time: Where annual elections end,
tyranny begins. Madison favored a three-year term. He thought this would give
stability to the House. Fewer elections would mean fewer chances of new
members elected.

Also, members would need time to learn on the job about national issues and
three years would allow members to educate themselves in this regard.

The delegates approved two-year terms as a simple compromise between these

two proposals.

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 Senate: The same arguments used by Madison and others for a three-year term for
members of the House were used for arguing for a longer term for members of
the Senate. It was argued that what was needed was stability (fewer elections
would mean fewer new members) and more time for acquiring knowledge.

The argument was more persuasive here than with the House for several reasons.
First, the Senate was designed to provide for a check on the House. As such it
was to operate with more deliberation. On June 7, Madison stated, "The use of
the Senate is to consist in its proceeding with more coolness, withmore system,
and with more wisdom, than the popular branch."

Second, to provide for stability and continuity in the Senate, it was decided that
only one-third of the members would be up for election at a time. Thus, the
length of term needed to be divisible by three. A three year term was clearly too
short, while a nine year term was viewed as too long; hence, a six-year term.
[Note: In the first Senate, lots were drawn to determine which Senators would
have a two, four, or six year term to provide for an initial staggering of elections.]

2. There were three decisions made at the Constitutional Convention of 1787 that
demonstrate the nationalist position of most of the delegates and relate to Congress.

Pay: Confederationists (states rightists) at the Convention wanted members of

Congress to be paid by each state. This was clearly an attempt to keep
congressmen tied to the states rather than thinking "nationally."

Nationalists, on the other hand, wanted the pay of congressmen to come from the
national treasury. They understood that if states paid congressional salaries, this
could be used as leverage to get congressmen to think in terms of states' interests
rather than the interests of the nation. Hamilton argued at the Convention, "Those
who pay are the master of those paid." In the end, the nationalists won the debate.

Per Capita Voting: How would votes be counted in the Senate? It it taken for
granted now that each senator would have a vote (per capita voting). But, this
was not an assumption at the Convention. After all, under the Articles of
Confederation, states had different size delegations, but each state's delegation
cast a single vote.

Confederationists at the Convention wanted the two Senators to cast a single vote
for the state. Nationalists wanted per capita voting to enable measures with a
nationalistic support to more easily pass. The nationalists won the debate.

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 Recall: The framers were not unfamiliar with the recall. It is a device used to end
a politicians term before it has expired. Although the recall was in the original
Virginia Plan, it was stricken from that proposal on June 12 with no one
objecting. The issue never surfaced again during the remainder of the
Convention.

Had the recall been approved, this would have provided states with tremendous
leverage in keeping congressmen tied closely to the state's interests.

Although uncommon, when very upset with a member of Congress, states have
incorrectly called for his or her recall. The most recent example of this was in
Wisconsin. Antiabortion forces were circulating petitions in that state to recall
Wisconsin's two Democratic U.S. Senators. See "Wisconsin GOP Congressman
Backs Drive to Recall Senators,” Washington Post, Tuesday, April 22, 1997, p.
A4).

3. A good exercise at the beginning of the topic on Congress is to draw a vertical line on
the chalkboard and ask the class to give differences between the House and Senate. Not
only can this be used to branch off onto other topics in more depth, but it can be a good
gauge of how knowledgeable the students already are. Here is a list of differences
between the House and Senate.

Size: House - 435 (passed into federal law in 1929)

Senate – 100

Term:
House – two years (all up for election every two years)
Senate - six years (with one-third up for election every two years)

Exclusive Powers:
House - impeaches; originates tax bills
Senate - tries impeachments; provides advice and consent for
some presidential appointments and all treaties

Leadership:
House - elects Speaker
Senate - vice president

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Prestige:
Senate is considered by most to have more
Prestige. It is not uncommon for a member of the
House to resign and run for the Senate; presidential candidates often come from
Senate.

Flexibility of Rules:
The House is less flexible than the Senate; there is no filibuster
in the House; the size of the House makes adherence to rules a
must.

Constituency:
Except for the few states with one Representative,
Representatives' constituencies are smaller than Senators' (who
are elected "at large") and thus more homogeneous.

Power:
Less evenly distributed in the House than in the Senate. There being fewer
members in the Senate, there is a greater possibility of getting a position of power
on a committee, subcommittee, or as part of party leadership).

Media:
There is greater media coverage of the Senate than the House (C-SPAN I & C-
SPAN II).

Staff:
Generally speaking, there is a greater reliance on staff in the Senate than the
House (due to differences in specialization).

Policy:
House members tend to be policy specialists while Senators tend to be policy
generalists.

Ideology:
The framers designed the Congress thinking the House would be more liberal and
the Senate more conservative; most scholars today think that all things being
equal, the Senate is more liberal than the House.

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LIST OF TRANSPARENCIES

Each transparency listed is followed by the Text Figure (or Table) number, followed by
the text page.

T21 The Public Rates the Honesty and Ethics of Members of Congress Lower Than That
of Other Occupations, 12.1b, 380

T22 Americans Rate Their Representative Much More Positively Than the Congress,
12.2, 381

T23 The Legislative Branch, Table 12.1, 382

T24 How a Bill Becomes a Law, 12.4, 401

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170
CHAPTER THIRTEEN

The Presidency: Powers and Practice

OVERVIEW

Presidents have to balance the difficult task of pleasing the activists in their party and the
general public. Presidents have a few constitutional powers (such as the veto and
appointment), but they have also been successful in claiming to have inherent powers.
Congress has the power to check several of these powers and has the ultimate check of
impeachment. Presidents are often left with the power to persuade important political
actors, a power that depends as much on the dignity of the office as specific powers.
They tend to propose major initiatives at the beginning of their terms when their
popularity is highest.

LEARNING OBJECTIVES

1. Explain why President Bill Clinton's stand on gays in the military resulted in a torrent
of opposition from the public, Congress, and military leaders.

2. Understand the significance of the national constituency, the party constituency, and
the pattern of partisan support in Congress to the overall political effectiveness of the
president.

3. Define and explain the power to inform and persuade, the veto power, and the
appointment power. Cite real-life political examples of each power.

4. Understand how the Chief of State role augments presidential prestige while
enhancing the level of public respect for the office.

5. Explain how presidential reputation and presidential popularity are related and note
what developments, domestically and internationally, can impact the reputation-
population linkage.

6. Analyze why some men are great presidents while others are only mediocre or even
fail.

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7. Define and elaborate upon the presidential personality and leadership characteristics
inherent in James Barber's active-positive conceptualization.

KEY TERMS

administration honeymoon
beltway insider impeachment
bully-pulpit independent counsel
cabinet inherent executive power
chief of staff line item veto
commander-in-chief override
dignified aspect pocket veto
divided government presidential popularity
efficient aspect secretary
Executive Office of State of the Union address
the President transition
executive order veto power
executive privilege First Lady
White House Office

OUTLINE

I. Presidential Constituencies

A. National Constituency

In theory, the president is the only person elected by all the people, and thus, only
the president can persuasively claim to be speaking for the country as a whole and
use this national constituency to powerful effect.

This also means, however, that presidents often get blamed for things over which
they have no control.

B. Partisan Constituencies

Presidents must also be attentive to the active members and leaders of their party,
who are normally more extreme in their issue positions.

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 C. Partisan Support in Congress

Members of Congress of the president's party vote with the president about 80 to
90 percent. Opposition party members vote with the president about 40 to 50
percent.

Political scientists debate the desirability of divided government: one party

controlling the presidency and another party controlling the Congress.

II. Separate Institutions Sharing Power

Over 80 percent of the time, presidents either fail to secure passage of their major
legislative agendas or must make important compromises to win congressional
approval.

Presidents can only govern with the help of Congress. The result is, as Richard
Neustadt explains, a "government of separated institutions which share power."

A. The Power to Inform and Persuade

One way in which presidents seek to persuade Congress is by the annual State of
the Union address.

1. Early Use of Persuasion Power

The power to persuade is used much more publicly today than it was in the early
years of the republic

2. Modern Persuasion Power

Teddy Roosevelt brought new meaning to the acceptable president rhetoric (bully-
pulpit).

Other modern presidents who were powerful rhetoricians include Franklin

Roosevelt (fireside chats), John Kennedy, and Ronald Reagan.

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B. The Veto Power

Prior to the Civil War, each president's average use of the veto was four.
Presidents exercise the veto much more frequently today, and since the Kennedy
administration, only about 10 percent are overridden by Congress.

If the president does not sign a bill and 10 days later (not counting Sundays)
Congress has adjourned, the bill is pocket-vetoed – also called pigeon-holed.

After making a promise in the 1994 landmark decree “Contract With America,”
Congress gave the president the line-item veto in January of 1996. In 1998, the
U.S. Supreme Court declared the law unconstitutional.

C. The Appointment Power

Presidents can appoint several thousand individuals to their administration.

1. The Cabinet

Most of the cabinet consists of the heads of the executive departments. Today
there are 15 departments making it hard for the cabinet to provide confidential
advice to presidents.

2. The White House Staff

The growth of the modern presidency can be traced to the Brownlow Report
which concluded "the president needs help." Congress enlarged the presidents
staff; today, over 400 aides (mainly close friends and/or campaign donors) assist
the president.

The White House Office is just one section of the large Executive Office of the
President (EOP).

Presidents name one person, the Chief of Staff, to head the White House staff.
The most effective are those who are usually Washington insiders (such as
Howard Baker, Reagan's Chief of Staff).

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 3. Scandals in the White House Office

A loyal staff can sometimes isolate the president from criticism. Sometimes a
staff can engage in illegal activities.

The intensity and significance of White House scandals have escalated in recent
decades. Examples include Watergate, Iran-Contra, and Whitewater.

D. The Power to Recommend

The power to recommend gives the president the power of initiation, the power to
set the political agenda. Of course, Congress can ignore presidential
recommendations or propose their own.

1. Early Use of Power to Recommend

Prior to the Civil War, the power to recommend was exercised with great
restraint.

2. Modern Use of Power to Recommend

The power to recommend expanded rapidly after the Civil War. Strong presidents
like Teddy Roosevelt, Franklin Roosevelt, and Ronald Reagan used the power to
set the national agenda.

3. Timing Presidential Initiatives

Presidents have the best chance of initiating policy in the first months after their
election (called the honeymoon), since their popularity is at its peak. This also
makes transitions (the first 75 days before inauguration) important.

E. The President as Chief of State

In many countries the roles of political leader and head of state are separated, but
not in the United States.

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 These two roles have been described by Walter Bagehot as the efficient aspect
and the dignified aspect of government. The latter has always stood in tension
with the egalitarian ideals of American democracy. Over the years, presidents
have become more and more involved in the efficiency aspect of governing, often
making it harder to maintain their dignity.

1. The First Lady

Historically, the role of the First Lady was to reinforce the dignified aspect of the
presidency. Some, like Eleanor Roosevelt and especially Hillary Clinton,
involved themselves in political and policy processes.

2. The Vice President

Traditionally, the vice presidency was viewed as a do nothing office. Their only
ongoing constitutional duty was to preside over the Senate (a vote in the case of a
tie).

Presidents have not been inclined to delegate power to them since they are
guaranteed a four-year term and can't be fired.

The process for selecting vice presidents (balancing the ticket) has resulted in
presidents and vice presidents not being very close.

Still, vice presidents are only a heartbeat away from the presidency, and in
modern times have become the heir apparent to the office of the presidency.

Recently, the office has grown both in terms of the dignified aspect and efficiency
aspect. Richard Cheney, George W. Bush's vice president, was selected for his
familiarity with national-security issues.

F. Inherent Executive Power

Some presidents have claimed that the executive power clause of Article II is a
recognition of inherent presidential powers.

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 1. Executive Order

One example of inherent executive powers is the power to issue directives that
have the force of law (called executive orders). The Supreme Court has
recognized the constitutionality of these orders.

2. Executive Privilege

Another example of inherent "executive powers" is the power of the president to

deny information to Congress (called executive privilege). The Supreme Court
has recognized a limited executive privilege as constitutional.

3. The Impeachment Power

The House can impeach and the Senate can convict the president for committing
impeachable offenses. Andrew Johnson and Bill Clinton were both impeached,
and Nixon resigned in the face of certain impeachment. Neither Johnson nor
Clinton were removed from office.

4. Independent Counsel

The establishment of the office of independent counsel (formerly called special

prosecutor) in 1978 has enhanced the impeachment power of Congress. Twenty
independent-counsel investigations took place between 1978 and 1999. Kenneth
Starr became a rather famous one when he was appointed by a three-judge panel
in 1994.

III. Presidential Expectations and Presidential Performance

The public expects the president to solve problems, but given the limits on
presidential powers, this is unlikely. Thus, presidents are faced with the dilemma
of playing politics to get results or appearing helpless.

A. Presidential Reputations

Presidents take steps to remain influential with beltway insiders. Two things
important in this regard are the kind of people working for them and their ability
to be on the winning side of issues.

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 B. Presidential Popularity

Presidents are also concerned with their popularity with the general public. Their
popularity, as gauged by frequent opinion polls, fluctuates greatly.

Typically, their popularity falls about eight points during their first year in office
and fifteen points by the middle of their third year. During their fourth year, their
popularity recovers somewhat.

C. Great Presidents

Why do some presidents fail and other succeed?

James David Barber argues it is due primarily to presidential character (how they
like their job and how active they are).

Presidential success may depend less on personality than on the circumstances

under which the newly elected come into office.

IDEAS FOR LECTURES AND DISCUSSION

1. Who are the "great" presidents? There have been three Schlesinger polls in which
historians and political scientists rate presidents. This could make for a lively discussion
concerning how one judges a president. Here are the results of the three Schlesinger
polls. The third one appeared in The New York Times Magazine, December 15, 1996.

SCHLESINGER POLLS

1948 1962 1996

Great Lincoln Lincoln Lincoln

Washington Washington F. Roosevelt
F. Roosevelt F. Roosevelt Washington
Wilson Wilson
Jefferson Jefferson
Jackson

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Near Great T. Roosevelt Jackson Jefferson
Cleveland T. Roosevelt Jackson
J. Adams Polk Wilson
Polk Truman T. Roosevelt
J. Adams Truman
Cleveland Polk

Average J.Q. Adams Madison Eisenhower

Monroe J.Q. Adams L. Johnson
Hayes Hayes Kennedy
Madison McKinley J. Adams
Van Buren Taft Cleveland
Taft Van Buren McKinley
Arthur Monroe Madison
McKinley Hoover Monroe
A. Johnson Harrison Reagan
Hoover Arthur J.Q. Adams
Harrison Eisenhower Carter
A. Johnson Clinton
Van Buren
Bush
Taft
Hayes
Arthur
B. Harrison
Ford

Below Average Tyler Taylor Coolidge

Coolidge Tyler Tyler
Fillmore Fillmore Taylor
Taylor Coolidge Filmore
Buchanan Pierce
Pierce Buchanan

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Failure Grant Grant Hoover
Harding Harding Nixon
Pierce
A. Johnson
Grant
Buchanan
Harding

[Note: In the 1996 poll, 32 jurors cast votes. The rankings listed here were determined by
calculating the total score for each president using the following: Great=4; Near Great=3;
Average=2; Below Average=1, and Failure=0.]

2. The authors offer some quotes on the vice presidency. Here are some others, along
with some concluding thoughts on the office.

Vice-Presidential Quotes

J. Adams (Washington's Vice President)

"My country has in its wisdom contrived for me the most insignificant office
that ever the invention of man contrived or his imagination conceived."

"I am nothing, but I may be everything."

Garner (FDR's Vice President)

"The vice presidency isn't worth a pitcher of warm spit."

Marshall (Wilson's Vice President)

"Like a man in a cataleptic state, the Vice-President cannot speak; he cannot
move; he suffers no pain; and yet he is perfectly conscious of everything that is
going on about him."

"Once there were two brothers. One ran away to sea; the other was elected Vice
President, and nothing was ever heard of either of them again."

Agnew (Nixon's Vice-President)

"Now I know what a turkey feels like beforeThanksgiving."

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 Truman (FDR's Vice President)
"I bet I can go down the street and stop the first 10 men I see and they can't tell
me the names of two of the last 10 vice presidents."

"Look at all the Vice-Presidents in history. Where are they? They were about as
useful as a cow's fifth teat."

Statements About the Vice Presidency

In the mid-1800s, Daniel Webster refused the vice-presidential nomination saying

he did not propose to be buried until he was already dead.

Ben Franklin said that the vice presidency should always be addressed as "Your
Superfluous Excellency."

When Marshall (Wilson's Vice President) was asked why so many vice presidents
came from Indiana, he replied, "Because Indiana produced so many first-rate,
second-rate men."

Vice-Presidential Myths?

A. The vice presidency is a good training ground for the presidency.

It is difficult to accept this as true. First, until very recent presidential terms, vice
presidents did not even have an office in the White House. Second, until after
World War II, vice presidents typically did not even attend cabinet meetings.

One study found that those presidents that had previously served as vice president
got poorer ratings as president than those coming from other positions. [See, Danny
M. Adkison, "The Vice Presidency as Apprenticeship," Presidential Studies
Quarterly (Spring 1983.]

B. People vote for a presidential candidate based on the vice-presidential

candidate.

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 One study found that most people vote against a ticket because of the vice-
presidential candidate rather than for the ticket because of the vice presidential
candidate. Richard Nixon, once commenting on his selection process for a vice
presidential candidate, stated that his selection could not help him. So Nixon
looked for the running mate that would hurt him the least (Agnew).[See Danny M.
Adkison, "The Electoral Significance of the Vice Presidency," Presidential Studies
Quarterly (Summer 1982.]

C. The uppermost concern on a presidential candidate’s mind when selecting a vice

presidential running mate is whether or not the person would make a good successor to
the presidency.

Actually, as one congressman once put it, rather than picking someone to succeed
them, presidents are picking someone they think will help them succeed (i.e. get
elected).

There are numerous examples of presidents selecting vice-presidential running

mates in an attempt to pick up votes (balance the ticket).

Kennedy (Easterner) - L.B.J. (Southerner) Carter (So. moderate)- Mondale (No.

liberal) Reagan (Western conservative) - Bush (Eastern moderate) Bush
(Eastern moderate) - Quayle (Midwestern conservative)

D. The United States needs a vice president.

First, there is evidence that the framers did not create the vice presidency to
provide a successor to the presidency. The delegates at the Convention had
already designated someone to be a successor when the idea for a vice president
emerged. The idea came about when discussing the method for electing the
president. Once the discussion shifted to electors casting two votes each, it was
thought there needed to be a second office. Once that idea caught on and the vice
presidency was created, then the delegates went looking for what the person could
do.

Second, the national government does need someone that can succeed to the
presidency in the event of a vacancy (or disability). That would not have to be a
vice president. It could easily be someone of, typically, greater stature. For
example, the Secretary of State is usually someone of stature and this person
could be the successor. (It might be interesting to see how many of these your
students can name compared to vice-presidents).
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 Third, Arthur Schlesinger Jr. describes the vice presidency as a maiming
experience. He thinks that any person that would serve in such an office for four
or possibly eight years is going to have problems later as president.

If there is any truth to this, the problem is exacerbated by the fact that in recent
years whoever serves as vice president (or, on the losing ticket ran as vice
president) is immediately accepted as the front-runner for the presidency four
years later.

3. Although touched on briefly, a great deal more could be said about the phrase
"executive power" in the first sentence of Article I. Below are some ideas:

The Meaning of Executive Power: There are two schools of thought concerning
what the framers meant when they used the phrase "executive power."

A. Some scholars think that the phrase "executive power" was intended to summarize
the powers that are enumerated in Article II. According to this point of view, all
presidential power is listed in Article II and the executive power clause does not add
any power to the list. It is merely descriptive.

Presidents taking this view are said to be exercising the role of literalist. Some also
refer to it as the Whig role. Examples would be William Howard Taft and Dwight
Eisenhower.

B. Some scholars think the phrase "executive power" confers power. That is, it is not
descriptive of other powers but is, itself, a grant of additional power. What power?
Executive power. Viewed in this way the clause became a kind of necessary and
proper clause for the executive. This is the interpretation that has come to accurately
describe the modern presidency. There is no mention in the Constitution of the
president's power of removal. There is no mention of executive privilege, or executive
agreements, or executive orders. Yet presidents exercise all of these, and with the
blessing of the U.S. Supreme Court.

Presidents taking this view are said to be exercising the stewardship role. Examples
would be Abraham Lincoln and Franklin Roosevelt.

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The Tension of the Presidency

C. Years ago, Barbara Hinckley (Outline of American Government) argued for a kind
of synthesis of these two views. In her opinion, the framers constructed a duality when
designing the presidency. On the one hand, they desired an energetic (strong)
executive (as outlined by Hamilton in the Federalist Papers). They listed very few
specific powers in Article II. Rather, they purposely left presidential powers
ambivalent or undefined. This was so that the executive could exercise needed powers
when certain occasions presented themselves.

On the other hand, the framers worried that the president could be too strong. Thus
they provided numerous checks on the president. The Senate must approve certain
appointments and all treaties. The president did not have an absolute veto it could be
overridden. Only Congress could declare war or appropriate funds.

Seen in this light, the presidency, by design, is both strong and weak. By setting up
such broad parameters, the framers allowed some presidents to be strong (Lincoln)
and others to be weak (Carter). Of course, the personality of the president matters
here, but the tension in the office is there purposely.

Justice Jackson's Three Groups

D. Finally, in Youngstown Sheet & Tube Company v. Sawyer (1952) Justice Jackson
discussed presidential power in relationship to Congress. He provided three different
groups or categories under which presidents can act, with different amounts of power
for each.

This case dealt with the question of whether or not the president (Truman) had the
constitutional authority to seize private steel mills in order to prevent a nationwide
steel strike. In taking this action, President Truman did not follow the Taft- Hartley
Act, which provided for the seeking of an injunction to halt a strike.

Jackson's description of power under the Constitution sounds very much like Barbara
Hinckley's. For example, he states, "While the Constitution diffuses power the better
to secure liberty, it also contemplates that practice will integrate the dispersed powers
into a workable government." He continues, "Presidential powers are not fixed but
fluctuate, depending upon their disjunction or conjunction with those of Congress."
Here are the three groups as he described them.

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 1. When the president acts pursuant to an expressed or implied authorization of
Congress, his authority is at its maximum, for it includes all that he possesses in his
own right plus all that Congress can delegate. In these circumstances, and in these
only, may he be said (for what it may be worth) to personify the federal sovereignty.
If his act is held unconstitutional under these circumstances, it usually means that
the federal government as an undivided whole lacks power. A seizure executed by
the president pursuant to an Act of Congress would be supported by the strongest of
presumptions and the widest latitude of judicial interpretation, and the burden of
persuasion would rest heavily upon any who might attack it.

2. When the president acts in absence of either a congressional grant or denial of

authority, he can only rely upon his own independent powers, but there is a zone of
twilight in which he and Congress may have concurrent authority, or in which its
distribution is uncertain. Therefore, congressional inertia, indifference or
quiescence may sometimes, at least as a practical matter, enable, if not invite,
measures on independent presidential responsibility. In this area, any actual test of
power is likely to depend on the imperatives of events and contemporary
imponderables rather than on abstract theories of law.

3. When the president takes measures incompatible with the expressed or implied
will of Congress, his power is at its lowest ebb, for then he can rely only upon his
own constitutional powers minus any constitutional powers of Congress over the
matter. Courts can sustain exclusive presidential control in such a case only by
disabling the Congress from acting upon the subject. Presidential claim to a power
at once so conclusive and preclusive must be scrutinized with caution, for what is at
stake is the equilibrium established by our constitutional system.

LIST OF TRANSPARENCIES

Each transparency listed is followed by the Text Figure (or Table) number, followed by
the text page.

T25 Partisan Support for the President in Congress, 13.1, 420

T26 Growth in Presidential Use of the Veto Power, 13.3, 426

T27 Size of the White House Office, 13.4, 428

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Chapter Fourteen

THE BUREAUCRACY

Overview

Federal bureaucracies are beset with several problems

that have created an image of inefficiency. This image
began in the early years of the republic with the development
of the spoils system. Beginning in 1883, the merit system
(Civil Service) began to replace this system. There are
still about 3,000 top executive positions that are appointed.

Although bureaucrats work in the executive branch,

Congress has several means of controlling them. Recognizing
this, they often form alliances with congressional committees
and interest groups (iron triangles). Elections also
influence the bureaucracy. On the plus side, they keep
agencies from becoming too secretive and coercive. On the
negative side, they make them too cautious or force them to
operate under laws that undermine their effectiveness. Most
agencies seek to survive by merely muddling through.

Learning Objectives

1. Explain why the Clinton Administration was unable to

switch Drug Enforcement Agency (DEA) and Alcohol,
Tobacco, and Firearms (ATF) from the Treasury Department
to the FBI's jurisdiction.

2. Delineate the nature of the bureaucracy problem, noting

that bureaucracies face impossible tasks, their
performance is difficult to measure, and they are
slow and often mired in red tape.

3. Review the distinctive form and manner of American

bureaucracies, noting why they are "particularly
political."
205
4. Define patronage or spoils system, civil service system,
Hatch act, and inners and outers.

5. Summarize the nature of the congressional relationships

with the bureaucracy, noting the roles of senate
confirmations, congressional turf, budgetary controls,
legislative oversight, iron triangles, and issue
networks.

6. Explain the inner and outer cabinet, the roles of the

independent regulatory agencies, the purpose of Office of
Management and Budget (OMB0, and the importance of the
Congressional Budget Office (CBO).

7. Discuss the various bureaucratic reforms, which are

intended to improve bureaucratic efficiency,
effectiveness, and accountability.

Key Terms

administrative discretion inners and outers

agency iron triangle
bureaucracy issue network
civil service mugwumps
Congressional Budget patronage
Office Pendleton Act
Department Office of Management and
earmark Budget
end run recess appointment
government corporation senatorial courtesy
Hatch Act spoils system
independent regulatory sunshine law
agencies inner cabinet

Outline

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I. The Role of the Bureaucracy

Bureaucracies, organizations designed to perform a

particular set of tasks, have administrative
discretion. The agency is the basic organizational
unit of the federal government. Some agencies stand
alone and others are grouped into departments.

II. The Bureaucracy Problem

Bureaucracies face impossible tasks, their performance

is difficult to measure, they have an urge to expand,
are slow to change, and are often mired in red tape.

A. Impossibility of Tasks

Most of the tasks taken on by government are

complex and unlimited.

B. Measuring Performance

Due to the difficulty of accurately measuring how

well bureaucracies are doing their job, when things
go wrong, the bureaucracy gets blamed.

C. Expansionary Tendencies

Government agencies almost always feel they need

more money, more personnel, and more time to
perform their tasks effectively. After all, many
bureaucrats have worked in an agency for a good
number of years, so they are advocates for the
programs they execute.

D. Slow to Change

Standard operating procedures, which are essential

to any organization, make bureaucracies slow to
change and slow to adapt to new circumstances.

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 E. Red Tape

Everyone complains about red tape, but at the same

time, many people often make demands on the
bureaucracy that causes the red tape.

III. American Bureaucracies: Particularly Political

American bureaucracies have special characteristics

rooted in their country's political history.

A. Difficult Beginning

Unlike the situation in other countries, those

working early on for the bureaucracy in America did
not come from elite groups. Even the location of
the nation's capital in Washington discouraged
people from working for the government.

B. Mountains of Patronage

An early practice followed in the federal

bureaucracy was giving jobs to individuals that had
helped get one elected. This is called patronage or the
spoils system. Andrew Jackson made a regular
practice of it.

Some scholars think the spoils system was a good

idea. It helped assimilate immigrants into
American culture, politics, and society. And
Americans boasted that they would rather have
people in office whom they could spit upon rather
than a caste of officials who spit upon them.

Eventually, the spoils system was replaced by the

civil service: government employees chosen
according to their educational qualifications,
performance on examinations, and work experience.

The image of bureaucrats as political hacks, has

208
 carried over from the era of the spoils system to
Americans' image of bureaucrats today.

C. Advantages of the Spoils System

The spoils system helped incorporate immigrants

into American urban life.

D. Disadvantages of the Spoils System

The system, by not stressing qualifications,

contributed to the negative image of bureaucrats as
incompetent.

E. Erosion of the Spoils System

In the 1880s, a group of professors, journalists,

clerics, and businessmen (called mugwumps)
advocated hiring bureaucrats on the basis of what
they knew (merit) rather than whom they knew
(political connections).

In 1883, Congress passed the Pendleton Act, which

created a Civil Service Commission to set up
qualifications, examinations, and procedures for
getting many government jobs. In 1939, Congress
passed the Hatch Act, which prohibited federal
employees from political campaigning solicitation.

F. Political Appointees Today

There are still about 3,000 top officials in the

executive that are appointed. Most are members of
the White House staff, the heads of most
departments and agencies, and the members of most
government boards and commissions. They are also friends
of the president.

There are advantages and disadvantages to these

presidential appointments. It allows new people
209
with innovative ideas to get into government. It
also helps presidents introduce their political
agendas with minimal resistance. On the other
hand, it complicates government coordination. The
average appointee leaves office after about two
years of service (resulting in what has been called
a government of "inners and outers"). This high
turnover rate in personnel leaves government
without the continuity necessary for sustained
policy focus.

Another disadvantage is that it makes these

positions less attractive as a career for
intelligent, ambitious young people.

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IV. The President and the Bureaucracy

Presidents oversee the federal bureaucracy but even

they are frustrated by the bureaucracy problem.

A. The Cabinet

The secretaries of the departments, along with a few

other top-ranking officials, constitute the cabinet.
The four original departments (State, Defense,
Treasury, and Justice) are known as the inner
cabinet because their secretaries typically have
easy access to the president. The remaining
departments are known as the outer cabinet. These
departments provide interest-group access into the
executive branch.

B. Independent Regulatory Agencies

These agencies, generally headed by several members

appointed by the president following Senate
confirmation, have quasi-judicial regulatory
responsibilities, which are to be carried out in a
manner free of presidential interference (hence the
name independent).

Most of these agencies were created by public demand

to protect workers and consumers from negligent or
abusive business practices.

Over time, some of these agencies became friendly

with the very groups they were designed to regulate
(similar to the practice found in iron triangles).

C. Office of Management and Budget

Before 1921, every federal agency sent its own

budget to Congress to be examined by an
appropriations subcommittee. No one was responsible
for adding up all these requests to see if the
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 government was taking in enough tax money to pay for
them all.

The Office of Management and Budget (originally

called the Bureau of the Budget) was created to
oversee the president's budget proposal. It also
sets personnel policy and reviews every piece of
proposed legislation submitted to Congress to see if
it is consistent with the president's agenda.

Agencies are still capable of making end-runs around

OMB by appealing to their allies on Capitol Hill.

To check OMB's growing power, Congress created the

Congressional Budget Office in 1974. It evaluates
the president's budget as well as the budgetary
implications of all other legislation.

V. Congress and the Bureaucracy

Although, officially, federal bureaucrats have one boss

(the president), actually they are also bossed by many
in Congress.

A. Senate Confirmations

Congress influences the bureaucracy through the

exercise of its constitutional advice and consent
function. An informal rule that operates within
this function is senatorial courtesy.

The media have come to play an important role in

this process in recent years. Due to increasing
media coverage, Senators are more concerned today
that nominees take the correct political positions.
There have been several notable nominations that
resulted in the president's nominee not being
confirmed or the individual withdrawing his
nomination.

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 Still, Senate rejections of presidential nominees
are the exception, not the rule.

Although the Constitution gives the president the

power to make recess appointments, since Congress
has denied pay to those who are appointed in this
fashion, it is rarely used today.

B. Agency Reorganization

One reason presidents don't reorganize the

bureaucracy to make it more efficient is because
members of Congress, whose committees oversee
certain segments of the bureaucracy, resist such
changes.

C. Legislative Detail

Congress usually modifies bureaucratic proposals.

In addition, due to judicial precedent, Congress
can control bureaucracies somewhat by committee
reports accompanying legislation.

D. Budgetary Control

Congress passes the budgets for agencies. Thus,

agencies don't like to upset members of Congress.

Congress also earmarks some money, leaving agencies

no discretion on how it can be spent.

E. Legislative Oversight

Congress can hold hearings on bureaucratic

practices. Such hearings have quadrupled since the
1960s. The hearings can be used to revise existing
legislation or modify agency budgets.

F. Iron Triangles and Issue Networks

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 Iron triangle is the name for connections among
government agencies, interest groups, and
congressional committees. Each provides a benefit
to the other. The relationship is said to be iron
because the connections among the three groups
are very stable.

Some iron triangles have weakened in recent years

due to the rise of issue networks.

VI. Elections and the Bureaucracy

For more than a century, reformers have tried to

separate politics from administration. Such reforms
seem right-headed because when politics interferes with
the bureaucracy, the results are often inefficiency and
ineffectiveness. Furthermore, many of the more
effective federal bureaucracies are less politically
charged.

Still, it is not entirely possible to separate politics

from administration. Bureaucrats still report to
politicians, and, as long as they do, electoral pressures
will affect their decisions. Below are some general
rules concerning the relationship between elections
(politics) and the bureaucracy.

A. Bureaucracy Secrecy

Bureaucracies generally like to protect their

secrets, but electoral pressures have sharply
curtailed the amount of secrecy in American
government.

For example, the Freedom of Information Act (1967)

gives citizens the right to inspect unprotected
government documents. The Sunshine Law (1976)
requires federal government meetings to be held in
public (with some exceptions).

214
 Even for actions that can be legally kept a secret,
bureaucracies find that information is often leaked
to the public.

B. Bureaucratic Coercion

Bureaucratic abuses are less frequent because

agencies are held accountable to the electorate.

C. Agency Expansion

Though agencies generally try to increase their

budgets, elections break such tendencies. Hence,
Congress has in recent years cut expenditures on all
domestic programs other than Social Security and
Medicare.

D. Administrator Caution

Agencies don't get attention for success, but they

do for blunders. Thus, the mentality often
surrounding the bureaucracy is not one of managing
for success, but merely preventing blunders.

E. Compromised Capacity

For legislation to pass Congress, it is necessary to

build a broad coalition of support. To do this,
proponents must strike deals with those who are at
best lukewarm to the idea. Such compromise can
cripple a program at birth. Thus, ironically,
agency effectiveness is often undermined by the very
terms of the legislation that created it.

F. Muddling Through

Most American bureaucracies, if graded by those who

have a personal encounter with them, would earn a B
minus. Agencies have learned that if they try to be
too imaginative they become controversial and then
215
 politicians will react. So the best course is to
merely muddle through.

Ideas for Lectures or Discussion

1. In their section on the bureaucratic problem, the

authors write that part of the problem is that
bureaucracies are often mired in red tape. Below are
some points that could be elaborated upon concerning red
tape.

Why Is It Called Red Tape?

According to William Safire (Safire's Political

Dictionary), Charles Dickens supposedly first used the
phrase. "Official documents in England were tied with a
string or tape of a reddish color, and many lawyers
followed the practice in packaging their briefs."

In his Dictionary of American Politics, Eugene McCarthy

explains the pejorative connotation of the phrase this
way: "The expression arose from dissatisfaction with the
time taken to tie and untie the red tape used to bind
official documents."

Is Red Tape Bad?

Strictly by definition, one would have to say yes. The

phrase literally means excessive paperwork and the
like. Yet, as pointed out by the authors of the text,
"one person's red tape may be another's treasured
procedural safeguard." This is a 1977 quote of Herbert
Kaufman’s about the liberal think tank, the Brookings
Institution. Kaufman goes on, "We are ambivalent about
the appropriate trade-offs between discretion and
constraint, each of us demanding the former for ourselves
and the latter for our neighbors." As quoted by Safire in
his Political Dictionary.

216
Kaufman's Point

If we own a construction company that is about to get a

million dollar contract to construct a dam, when we learn
that the project has been halted due to our failure to
file an environmental impact statement, we throw up our
hands at such outrageous red tape! However, those
people whose farms (which have been in the family for
eight generations) would be submerged due to the damming
of the river and who wrote letters to their congressmen
in an effort to halt the project would applaud the
government for finally getting something right.

In other words, those who see government regulations as

getting in their way (usually meaning keeping them
from getting what they want) see those regulations in a
negative light (red tape). Those who view government
regulations as advantageous would not call them red tape.

What Is Red Tape Supposed To Do?

Few people, if any, make a case for excessive government

regulations. Forgetting for the moment the dictionary
definition of red tape and taking red tape to be all
government regulations, what is the purpose of red tape?
Ironically, the purpose of red tape is to protect
citizens and provide inefficiency in government.

How Does Red Tape Protect Citizens?

If people buy and consume in great quantities a popular

drink that contains saccharin, only to learn, 10 years
later, that they have developed a certain type of cancer,
their first reaction might be, "How did the government
let this happen?" There was a time when the prevailing
marketplace philosophy was caveat emptor. That is, let
the buyer beware since he buys without recourse (The
American College Dictionary). Today, we expect the
government to protect us from such things before it is
too late. In fact, we don't just want to be warned about
217
possible side effects of chemicals placed in food or food
products, to help us with our diets, we demand to know
things such as fat content and the amount of calories. The
government's position could be that if some manufacturer
causes us injury, our only recourse would be to use the
courts to seek restitution. But we want the government
to protect us before we are injured.

These demands mean that the government must collect data

and inspections. This means that people must be hired
and forms must be filled out concerning the production,
storage, transportation, packaging, and selling of goods.
Guess what some call this? Red tape.

Getting back to the drink with saccharin mentioned above,

the government is placed in a no-win situation. If there
are no regulations of such drinks or if the government
does not make the manufacturer issue warnings, when
people get sick they see the government as not doing
their job. Yet if the government issues regulations
in an attempt to prevent such things, it is criticized for
being mired in red tape.

What Does Red Tape Have To Do With Efficiency?

Suppose the government created a program for aid (perhaps

financial assistance) for those that were blind. This
type of program would seem to be one that a lot of people
would see as legitimate.

To make sure only those who are truly disabled with

blindness get the aid, the government might come up with
lengthy definitions as to what constitutes blindness.
Furthermore, it might require that those applying for the
aid have their blindness certified by several
specialists. Those seeking the aid would probably call
all of this paperwork red tape. Yet if the government
did not follow such procedures and it was discovered
(probably reported on "60 Minutes" or "20/20") that
people who were not truly blind were getting taxpayer
218
 money, the general public would be upset. Again, the
government is placed in a no-win situation. If they have
rules and regulations they are accused of creating red
tape, and if they don't and they are accused of inefficiency or
incompetence.

Why Is There So Much Red Tape?

Because everyone wants it. Of course, few people want

all of it. They merely want the part that protects them,
but it all adds up.

2. Bureaucracy and a Day in the Life of the Student

Ask your students to keep a log of their activities for a

couple of days with the purpose of seeing the impact of
government regulation on their lives. This could lead to a
lively class discussion. Here is an example of what
might be found. (If you include state and local
regulations, the list becomes nearly endless.)

A. Student wakes up to the radio alarm clock for an 8:00am class.

The radio stations are regulated by the Federal
Communications Commission which helps insure that the
student will get a clear signal (leaving them one
less excuse for why they were late for class).

B. Student makes bed. Tthe material used for their blanket, mattress or
both may be resistant to fire due to government regulations.

C. Student gets in car to drive to campus. Lots of regulations here (most local, but
some,
like the speed limit, may have been "urged" on to the
states). The car probably has a catalytic converter, etc.
as required by the government.

D. Student goes through McDonald's for a sausage biscuit. The

meat would have to have been inspected by the government and
meet certain specifications. Years ago the U.S. News and World
219
 Report found tens of thousands of government regulations that
covered hamburgers sold at a fast food establishment.

E. Student gets to class. Again, the suggestions for regulations are almost
endless, from EXIT signs in the classroom buildings
(Occupational Safety and Health Administration) to
affirmative action (1964 Civil Rights Act and
amendments). The professor standing before them may
have been hired due to the university's enforcement
of equal opportunity laws.

F. Student picks up mail and finds they have been sent a

book that they did not order. The government, just to mention one postal
regulation, does not require people to pay for
unsolicited merchandise (if certain procedures are
followed). There are, of course, lots of other government
regulations concerning the postal system

G. Student goes swimming in the afternoon. The government requires

public swimming pools to periodically check the water for impurities and
proper levels of chlorine.

H. Student goes to bed (after lots of studying). There is probably a tag

on the pillow, required by the government, that states, "Do not
remove under penalty of law." This is to guarantee that the
materials placed inside the pillow were sanitary when the pillow was
sewn together.

3. Some Laws Governing Organizations (Bureaucracies)?

[Note: Most of the following is taken from David Nachmias

and David Rosenbloom's Bureaucratic Government USA (NY:
St. Martins, 1980.]

A. Parkinson's Law

This "aw states that work expands to fill the time

allotted to complete it. This law can be brought
home to students by asking how many times they have
turned in a research paper early.
220
B. Peter Principle

This principle states that in any organization

people get promoted until they reach their level of
incompetence. Taken to its logical conclusion it
means that eventually, in any organization, people
will be performing tasks that they are least capable
of performing.

It works like this. A person just starting work at

an organization gets a lower level job. If the
person does a good job, he or she will get a
promotion (when there is a vacancy above them). This
situation keeps repeating itself until the person is
finally promoted into a position where they do not
perform well. Having not performed well at this
position they are passed over for future promotions.

In a more serious vein, Anthony Downs has presented

the set of propositions below about bureaucratic
behavior.

C. Law of Increasing Conservatism

"All organizations tend to become more conservative

as they become older, unless they experience periods
of very rapid growth or internal turnover."

D. Law of Increasing Conserverism

This could be called the law of inertia. "In every

bureau, there is an inherent pressure upon the vast
majority of officials to become conservers in the
long run." [Note: This is a corollary to the
previous law.]

E. Law of Imperfect Control

"No one can fully control the behavior of a large

221
 organization,” and, “The larger any organization
becomes, the weaker is the control over its actions
exercised by those at the top."

F. Law of Countercontrol

"The greater the effort made by a top-level official

or sovereign to control the behavior of subordinate
officials, the greater the efforts made by those
subordinates to evade or counteract such control."
[Note: This is a corollary to the previous law.]

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G. Law of Control Duplication

"Any attempt to control one large organization tends

to generate another organization."

[Note: This law could explain the duplication of the

bureaucracy found in the White House Office and
Congress. Even though there is a State Department
and a Defense Department, the President has a
National Security Council. Furthermore, even though
there is a Treasury Department and a Commerce
Department, Congress has a Budget Office and the
President has the Office of Management and Budget.]

List of Transparencies

Each transparency listed is followed by the Text Figure

(or Table) number, followed by the text page.

T28 Government Employment, 1946-1992, 14.1, 452

T29 Iron Triangle, 1950s-1960s, 14.8a, 470 top

T30 Issue Network, 1970s-1980s, 14.8b, 470 base

T31 Map of Key Buildings in Washington, unnumbered, 472

T32 Establishment Year of Each Cabinet Department and Group

Allies, Table 14.1, 474

T33 Independent Agencies and Their Group Allies, Table 14.2,

475

223
Chapter Fifteen

THE COURTS

Overview

Federal judges are appointed for good behavior (taken

to mean life) as a way of insulating them from politics.
While not required to do so, they tend to be guided by stare
decisis (or the precedents listed below) which helps insure
legal stability. Early on the Supreme Court asserted the
power to judge the constitutionality of laws (judicial
review).

The courts, however, are not totally insulated from

politics. Politics enters into the selection of federal
judges. Court decisions tend to reinforce prevailing public
opinion. If the decisions are considered too controversial
they may be challenged by an amendment to the Constitution
(in constitutional interpretation cases), or a revision of a
statute (in statutory interpretation cases), or politicians
may merely refuse to enforce them.

Most of the judicial work in the United States. is done

by lower federal and state judges.

Learning Objectives

1. Explain the significance of the Clarence Thomas nomination by

President Bush and the political implications that
resulted from the Anita Hill charges.

2. Explain why Supreme Court nominees today undergo greater

scrutiny by the Senate compared to previous eras
when there was a clearer separation of nominations from
political disputes.

3. Define and explain the importance of judicial review and

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 delineate how it has had some negative
consequences in American history (example: Dred Scott
case).

4. Define, compare, and contrast the three theories of

constitutional interpretation--original intent, living
constitution, and plain meaning of the text.

5. Define such important terms as precedent, opinion, legal

distinction, stare decisis, appeal, reversal, remedy,
statutory interpretation, brief, plenary, dissenting and
concurring opinions, remand, judicial activism,
restorationists, judicial restraint, writ of certiorari,
solicitor general, amicus curiae brief, and law clerk.

6. Summarize how Supreme Court decisions are made, including

the decision-making process and the various voting
factions present on the current Supreme Court.

7. Explain the organization of the federal and state court

systems.

8. Review and explain the three checks on court power--

constitutional amendment, statutory revision, and
nonimplementation.

9. Explain how litigation qualifies as a political

strategy.

Key Terms

appeal living constitution

associate justice theory
borking Marbury v. Madison
brief McCulloch V. Maryland
cert opinion
chief justice original-intent theory
circuit court of plain meaning of the
appeals text theory

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civil code plaintiff
class action suit plenary session
concurring opinion precedent
criminal code receiver
defendant remand
dissenting opinion remedy
district attorney restorationist
double jeopardy reversal
federal district courts senatorial courtesy
judicial activism solicitor general
judicial restraint stare decisis
judicial review statutory interpretation
law clerk U.S. attorney
legal distinction writ of certiorari

Outline

I. The Politics of Supreme Court Appointments

Not many years ago, presidential nominations to the

Supreme Court were approved by the Senate as a matter
of course. Earl Warren, nominated by President Dwight
Eisenhower, did not testify at his hearings.

It was William Howard Taft, the only person to serve

as both president and Chief Justice, who was
responsible for depoliticizing the nomination process.

Following the nomination of Robert Bork to be a Supreme

Court Justice, the Senate has taken a more critical
look at nominees. Borking is more likely if the
opposing party controls the Senate. To avoid this,
presidents may nominate someone whose views are unknown.
These are called "stealth" nominees.

These trends are likely to continue since the public,

having witnessed the process via modern technology,
wants them to.

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II. Judicial Review

This is the power of the courts to declare laws they

find unconstitutional to be null and void. The
Constitution does not explicitly mention this power.

A. Origins of Judicial Review

The Supreme Court asserted its power to exercise

judicial review in the 1803 case of Marbury v.
Madison. The case came about when President John
Adams nominated Mr. Marbury to a judgeship (a "midnight
appointment). The Senate voted to confirm, but
Thomas Jefferson was inaugurated before Marbury's
commission was delivered. Thomas Jefferson refused to
deliver the commission and Marbury, relying on
Section 13 of the 1789 Judiciary Act, took his
request for a writ of mandamus to the Supreme Court
on original jurisdiction.

John Marshall ruled that the Constitution, in

enumerating the Court's original jurisdiction,
implied that Congress could not add to it;
therefore, Section 13, giving Congress original
jurisdiction in cases not mentioned in Article III
was unconstitutional (null and void).

Marshall reasoned that the Constitution was

established as an act of the people, whereas laws
were acts of the people's representatives; thus,
the Constitution takes precedence over laws.

B. Three Theories of Constitutional Interpretation

One method of constitutional interpretation is

original intent. The interpreter seeks to ascertain
what those who wrote the Constitution meant when
they wrote it. This original intent is found by
studying historical documents.

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 Another method of interpreting the Constitution is
living constitution: judge the constitutionality of
laws in light of the entire history of the United States. as
a nation. The idea with this method is to keep the
Constitution current or allow it to adapt to modern
circumstances.

Another method of interpreting the Constitution is

called the plain meaning of the text: judges should
be guided by exactly what the words used in the
Constitution mean (not what someone intended nor
someone else's vague understanding of American
historical experience).

There are advantages and disadvantages to each

method of interpretation.

C. Judicial Review in Practice

Three times the Supreme Court created

constitutional crises by defying the declared will
of Congress and the president.

The first was the Dred Scott case, the 1857 declaring
the Missouri Compromise (1820) unconstitutional.
This decision convinced Northerners that slavery
would be extended throughout the Union and for
Southerners it helped justify secession.

A second case creating a constitutional crisis was

Lochner v. New York (1905). The Court refused to
allow states to regulate working conditions in
certain establishments (in this case, a bakery).
The decision was subsequently overruled.

A third instance is the case of Schechter Poultry

Corporation v. United States (1935). The Court
ruled, among other things, that Congress had
exceeded its constitutional authority to regulate
the selling of chickens since what it regulated was

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 intrastate not interstate commerce. This fine
distinction between intrastate and interstate
commerce was later overruled.

Decisions like these have resulted in some calling

for an end to judicial review. Two things explain
why judicial review survives. First, the Court
does not use it excessively. Second, when it does
declare a law unconstitutional, it is usually
because the president and the Congress no longer
support a law.

III. The Federal Court System

The Supreme Court is the linchpin of the national court

system, but the lower courts are where most of the
day-to-day work of the federal judicial branch is
carried out.

A. District Courts

Congress first created district courts in 1789.

There are 94 U.S. district courts today. Most federal
cases begin and end here.

During these trials there is a plaintiff and a

defendant, covering criminal law and civil law.

B. Appeals Courts

There are 13 U.S. Courts of Appeal: one for each of

the 11 circuits, one for Washington, D.C. and a
federal circuit hearing specialized cases over the
entire United States.

At each court three judges sit to hear a case

although in exceptional cases, all the judges
working at a circuit hear a case (called a plenary
session).

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 C. Specialized Courts

The Court of International Trade handles cases

concerning international trade and customs. The
Court of Federal Claims hears suits concerning
federal contracts, money damages against the United States,
and other issues involving the federal government.
Appeals from these cases go to the appeals court
for the federal circuit (covering the entire United States).

D. Powers of the Courts

In addition to determining the constitutionality of

law, American courts also engage in statutory
interpretation. If a court finds an injury has
occurred, it can order a remedy.

E. Selection of Judges

The Constitution states that federal judges shall

hold their offices during good behavior, which is
understood to be a life term. Presidents nominate
federal judges, the Senate gives (or withholds)
consent, and the president appoints (if Senate
consents). Senatorial courtesy applies in some
cases. Almost always, presidents nominate federal
judges who are members of the same political party
as themselves. Although uncommon, the Senate does
reject some nominees usually due to some financial
or personal problem uncovered during the Senate
confirmation process. Although judges can be
impeached, it is very rare.

F. Deciding to Prosecute

Suspected violations of federal law are usually

investigated by the Federal Bureau of Investigation
which gives the evidence to prosecutors in the office
of a federal district attorney. The district

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 attorney may ask a grand jury (16 to 23 citizens)
to issue an indictment.

District attorneys hold a particularly high

political profile. They leave the more routine
cases to state officials, focusing instead on high-
visible, attention-grabbing activities. If they
are particularly successful, they may become
candidates for higher office.

V. State Courts

Each state creates its own judicial system. Most have a

three-tiered system. If a state case raises a federal
question it can be appealed to the U.S. Supreme Court
(once it has gone as high as possible at the state
level). In 1819, the Supreme Court declared a
state law unconstitutional (McCulloch v. Maryland).

A. State Trial Courts: The Judicial Workhorse

About 99 percent of all civil and criminal cases

originate in the state trial courts. Most state
judges are subject to election, although most
judicial campaigns get very little public attention.
Most studies find few differences between the
decisions of Democratic and Republican state judges.

B. Prosecuting State Cases

Local district attorneys decide whether to present

their evidence to a grand jury in order to get an
indictment so that a person can be brought to trial.

Many local district attorneys are elected, and many

are interested in moving to a higher office.

C. Relations between State and Federal Courts

Most cases are heard in state courts, but any state

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 case can be heard in federal court if it raises a
federal question.

It is not considered double jeopardy to try a person

in both state and federal courts for committing an
act that is illegal at both levels.

IV. The Supreme Court in Action

In its 1999-2000 term, the Supreme Court issued full

opinions in only 80 cases. Still, its decisions
provide the framework for the country's entire judicial
system.

A. Stare Decisis

This means that the Court will follow precedents

(earlier decisions) when deciding similar cases.

By doing so, the Court creates stability in the

legal system. When the Court does deviate from an
earlier decision, it tries to do so by recognizing a
legal distinction between the earlier case and the
case at hand.

Parties to a case who lose can appeal their case to

a higher court. If the higher court agrees with
them, it can order a reversal: the overturning of a
lower-court decision.

B. Certs

Today nearly all cases argued before the Supreme

Court arrive upon the grant of cert (shorthand for
the Latin phrase writ of certiorari). This means
"to be informed"; if four Justices vote cert the
case will be sent up from the lower court so the
Supreme Court can be informed of it.

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 There are about 7,000 cert requests a year, but the
Court only grants a small fraction (about 80 during
the 1999-2000 term).

C. The Role of the Chief Justice

The U.S. Supreme Court consists of eight associate

justices and one chief justice. One special
privilege of the chief justice is to assign the
writing of the majority opinion (if the chief voted
with the majority). They may also use their
position to facilitate compromise and achieve
consensus.

D. The Role of the Solicitor General

The Solicitor General is the government's lawyer

before the Supreme Court. Because the Supreme
Court pays strict attention to the Solicitor
General, the officer is sometime referred to as
the Tenth Justice.

Although selected by the president, the Solicitor

General is an employee of the Justice Department.

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E. The Role of Clerks

Much of the day-to-day work of the Supreme Court is

conducted by each justice's clerks. Each has
between two to four clerks, who have usually clerked for a
lower court judge. Some claim that the real
decisions of the Supreme Court are made by the
clerks; others view clerks as better at deciding
cases than insulated justices. The truth probably
lies between these two views.

F. Supreme Court Decision Making

Supreme Court sessions begin on the first Monday in

October. Prior to deciding a case, the justices can
read the lawyers written briefs detailing their
arguments. The justices then listen to the oral
arguments of the lawyers, before a plenary session
of the Court. The justices will later discuss the
case in a private conference. It is here that the
will (if there is one) of the majority becomes
known. If the chief justice is not in the
majority, the most senior justice that is writes
the majority opinion (or assigns it to someone
else).

Whoever writes the opinion circulates drafts to all

the justices, and it is not unusual for an opinion
to go through several drafts. Some authoring
justices have, at this stage, "lost a court"; that
is, they worded the opinion in such a way that one
or more justices change their mind. Justices who
vote with the majority may write an individual
opinion explaining how their reasoning differed
with that expressed in the majority opinion (called
a concurring opinion). Justices who do not vote
with the majority may also explain their reasoning
(called a dissenting opinion).

Once a decision has been reached by the Court, it

213
 usually sends or remands the case to a lower court
for implementation.

G. Voting on the Supreme Court

The current justices on the Supreme Court

(excepting Justice John Paul Stevens) divide into three
fairly well -defined blocs. Ruth Bader Ginsburg and
Stephen Breyer constitute the liberal bloc or
judicial activists. Thomas, Scalia, and Rehnquist
constitute the conservative bloc or
restorationists. The moderates or judicial
restraintists are Souter, O'Connor, and Kennedy.

One study found that information about the

political views of a justice going through
confirmation allowed a correct prediction as to how
the justice would later decide cases over 60
percent of the time (in the area of civil
liberties).

VI. Checks on Court Power

Other branches of government can alter or circumscribe

court decisions.

A. Constitutional Amendment

A Supreme Court interpretation of the Constitution

can be overruled by amending the Constitution.
This was done with the 11th (a citizen of one state
cannot sue another state without the state's
consent) and 16th amendment (making income taxes
constitutional). Due to the difficulty in amending
the Constitution, some consider this the weakest
check on the Court.

B. Statutory Revision

A Supreme Court interpretation of a statute can be

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 modified by revising the statute.

C. Nonimplementation

Court decisions can be checked simply by being

ignored. Though unlikely today, presidents can
ignore Court decisions. Strong resistance to
lower-court decisions by state and local
governments is not unknown.

To ensure implementation of judicial orders, courts

sometimes appoint a receiver, an official who has
the authority to see that judicial orders are
carried out.

VII. Litigation as a Political Strategy

The Courts have increasingly been used by advocacy

groups to place issues on the political agenda,
particularly when elected officials have not responded
to group demands.

Advocacy groups can file class action lawsuits on

behalf of all individuals in a particular class, even
if they are not actually involved in the suit. This
keeps each and every individual similarly situated from
having to sue to receive compensation.

Ideas for Lectures and Discussion

1. Having your students brief a Supreme Court case can be

used several ways.

First, in anticipation of the chapters on civil liberties

(16) and civil rights (17), you can assign each student a
Supreme Court case to read. When you get to these
chapters and start discussing cases, you will then have
"experts" on cases to lead discussions or answer
questions dealing with details that are not covered in

215
the chapters.

You can either assign the cases or pass around a sheet

letting students sign up for cases that interest them
(with no one getting the same case).

Second, you could have students actually present their

briefs before the class in a more formal setting. This
could help students feel more comfortable with giving
speeches, and could also provide an additional grade,
which, for most students, would probably help their
scores.

Third, in addition to having students primed for class

discussion over particular cases that will come up
over civil liberties issues and civil rights, you could
use a written brief to help students whose scores are
borderline at the end of the course. Probably the best
approach here would be to make briefing a case optional.
For those who do it (and do it properly), the assignment
cannot make them borderline, but if they end up with a
borderline grade (as defined by you), they will earn the
higher grade by having opted to turn in the brief.

Below are some instructions for helping students brief a

case.

A. How do you find a Supreme Court case?

First, find a case citation in your textbook.

Second, go to the legal reference area of your

library.

The official government document containing Supreme

Court opinions is “United States Reports.” A typical
case citation, such as for Roe v. Wade, will look
like this: Roe v. Wade , 410 U.S. 113 (1973). This
means that the case of Roe v. Wade can be found in
volume 410 of the United States Reports, on page 113.

216
 The case was decided in 1973. Another citation often
used will look like this: Roe v. Wade , 93 S.Ct. 705
(1973). This means this case can be found in a
volume 93 of Supreme Court Reporter, on page 705.
This is not a government document (it is published by
West Publishing), but it contains the same text of
the opinion.

Before a student selects a case (if you don't assign

them) you should tell them to go to the library and
look up three cases that interest them. They should
be advised to examine them for content, length, etc.,
and then rank them in order of their preference.
Then they can return to class to sign up for a case
(with alternatives, if someone else has already
signed up for one they wanted).

B. What should go into their briefs?

One word of warning you should probably give students

as they begin to write their briefs is do not quote
extensively from the case. Encourage them to write
their briefs in their own words.

There are five basic parts to a brief:

1. The facts of the case. The student should give

the who, what, when, how, and why of the case.
This will probably be one of the longer sections
of their brief (but it depends on each case).

2. The law involved in the case: This is usually a

brief section. It should include references in
the case to the U.S. Constitution, federal law,
state law, executive orders, treaties, or other
legal references that enter into the decision of
the case. References should be specific. If a
reference is made to the Constitution, the
article, section, and clause of the passage
referred to should be given.

217
 3. The legal question of the case: This is usually
just one sentence, but it can be a difficult part
of the brief, because it takes some skill to
summarize an entire case (covering the
significant facts and law) in one sentence.

4. The ruling of the Court and the Court's

reasoning. This will probably constitute the
bulk of the brief. Again, encourage students not
to quote the justices but rather to use their
own words. You will also have to decide if you
want students to include concurring and
dissenting opinions as part of their brief.

5. An evaluation of the case: This should not merely be something

like, "I really enjoyed reading this case," or, "I
learned a lot from reading this case." They
should consult the text so as to be able to
provide analysis of the case. If necessary they
could consult other sources (constitutional law
texts or the New York Times, etc.) in order to
provide an informed evaluation.

2. The Senate and Advice and Consent

The role of the Senate in the exercise of its

constitutional advice and consent function (confirmation)
became a subject of debate during the Senate confirmation
hearings of Robert Bork to be an associate justice of the
U.S. Supreme Court in 1988. In fact, the treatment of
Bork resulted in an addition to the lexicon for the
confirmation process: nominees could now be "borked."

What are the different ways the Senate can exercise this
role? What role is usually used? What role would seem
to be the one intended by the framers?

Senate Approaches to Advice and Consent

218
One way the Senate could approach its role of advice
and consent is to see its job as one of uncovering any
bad behavior on the part of the nominee that might
disqualify him or her from serving on the Court. In other
words, when guided by this role, the Senate is basically
searching for any skeletons that might exist in the
nominees closet. If none are uncovered, then the
nominee should be confirmed. Perhaps the driving force
behind this approach is the assumption that the president
should be able to select whomever he or she wants as long as
the person has not smoked marijuana, abused his or her
spouse, had shock treatments, etc.

Another approach to the Senate's role of advice and

consent would include the above role, but go further in
its scope. According to this approach, certainly the
Senate might want to vote against a nominee, if serious
enough "skeletons" were uncovered, but there would be
additional reasons for rejecting a nominee as well. The
Senate should also consider what kind of justice the
nominee will be and what changes he or she might bring to
the Court. Thus, even without disqualifying "skeletons,"
the Senate might refuse to confirm if the nominee was
deemed too extreme in his or her beliefs (one of the accusations
made against Bork) or not of the proper judicial
temperament. In exercising this approach, the Senate is
not operating under the assumption that the president,
should be the sole judge of the nominees ability to
perform well as a justice. The Senate feels free to
independently examine this question.

What Approach Is Usually Used?

Until the nomination of Robert Bork, one would have to

say the first role (merely examining a nominee for
skeletons) was the predominant role. It does, of
course, depend on how you look at it, but Reagan's and
the Republican's outrage at how the Senate judiciary
committee treated Bork would indicate they did not think
it was normal. Indeed, when Reagan nominated Bork, the

219
historical record was that 80 percent of the time,
presidential nominees to the Court were confirmed. Of
course, one could focus on the 20 percent and see this as
a sign that the Senate had not, over the years, merely
played dead with Court nominees.

What Would the Framers Say?

The framers did not say. They gave literally no

guidelines as to what the Senate should do. In
Federalist 76, Publius writes that the procedure should be
used to prevent the appointment of unfit individuals.
Unfortunately, Publius does not explain what he means by
"unfit."

There is some evidence from the Constitutional Convention

that could help answer the question. The Virginia Plan
stipulated that the Congress would select the members of
the national judiciary. There were four attempts at
the Convention to place the appointment process in the
hands of the president alone. Madison, considered the
father of the Constitution, wanted the Senate to act
alone in selecting justices. The president was not added
to the process until the latter part of the Convention.
In fact, had the Convention adjourned just two weeks
early, the Senate would have exclusively appointed
justices.

Given this history of the appointment process in the

Convention, it seems unlikely that the framers would have
approved of the Senate approaching its advice and
consent function as one of basically letting the
president get whomever he or she wants as long as the nominee
has no skeletons in his/her closet.

One final note: Even Hamilton, an advocate of an

energetic executive, defended the role of the Senate in
presidential appointments as a way of preventing justices
who would be "obsequious instruments of [the president's]
pleasure."

220
3. A question that frequently comes up in class is which
cases go to federal courts and which cases go to state
courts. Below is a description of the jurisdiction of
federal courts. All other cases begin in state courts.

Original Jurisdiction

If a court has jurisdiction, it means it can hear a case.

Original jurisdiction means a court can hear a case
before any other court has heard the case.

Students will be surprised to learn that the Supreme

Court has original jurisdiction. This is specified in
Article III, Section 2, clause 2.

"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."

Congress may not add to this original jurisdiction

(Marbury v. Madison, 1803). It may, however, reassign
these cases to lower courts. Congress had done this.
Today, the only cases in which the U.S. Supreme Court has
exclusive original jurisdiction are cases in which a
state is suing another state.

On average, the Court gets about one of these a year.

When it does, it usually assigns the fact-finding of the
case to a Special Master (often a retired federal judge).
The Special Master issues a ruling to the Court that it
may follow or ignore.

Appellate Jurisdiction

Most federal cases begin and end at the federal District

Court (which has original jurisdiction). Those losing a
case in these courts can appeal them to the U.S. Courts
of Appeal.

221
 There are two categories of cases that can be brought to
federal courts: those dealing with a particular subject
and those involving particular parties.

Subject Matter

Any case involving a federal question can be brought to a

federal district court. A federal question would be one
that requires (1) an interpretation of a federal law,
(2) an interpretation of the U.S. Constitution, or (3) an
interpretation of a treaty; to cases dealing with
admiralty and maritime laws.

Particular Parties

Even if a case does not raise a federal question, it may

still be brought to federal court if particular parties
are involved in the case. If the following parties are
involved in a case, it is federal court jurisdiction:

- United States is a party to the suit

- a State is a party to the suit
- an ambassador or other foreign representatives
- a citizen of one state suing a citizen of another
state (These are called "diversity of citizenship"
cases. Federal law stipulates that such cases
must also involve damages of $50,000 or more to be
brought to federal courts.)
- citizens of the same state, if the dispute involves
land grants claimed under two or more states
- a state and a citizen of another state (as
modified by the 11th Amendment)

List of Transparencies

Each transparency listed is followed by the Text Figure

(or Table) number, followed by the text page.

222
T34 Presidential Nominees to the Supreme Court Not
Confirmed, Table 15.1, 487

T35 The Missouri Compromise, 15.1, 491

T36 Federal and State Court Systems, 15.2, 502

223
Chapter Sixteen
CIVIL LIBERTIES

Overview

Until the ratification of the 14th Amendment, civil rights

was pretty much a dead letter. In the 1920s, the Supreme
Court for the first time applied a portion of the First
Amendment to the states. In spite of James Madison's fears of
majority tyranny, the Court usually follows public opinion.
Particularly during war time, the Court had allowed
restrictions on freedom of speech and press. Following the
rejection of McCarthyism by politicians, however, the Court
began to treat free speech as a fundamental freedom.

Freedom of religion is covered in two clauses of the

First Amendment: no establishment and free exercise. The
former has resulted in a wall of separation between church
and state. The latter has been used at times to exempt
religious groups from government regulation.

In the 1960s, the Warren Court expanded the rights of the

accused. In the decades that followed, public concern
shifted to a concern for law and order. Although the Court
backtracked somewhat, it has refused to outright overrule
many of the Warren Court decisions. Although not explicitly
mentioned in the Constitution, the Supreme Court, relying on
the Ninth Amendment, has recognized the right of privacy.
Like other rights, it is not absolute.

Learning Objectives

1. Review the Jacobowitz and Jeffries cases which deal with

civil liberties on college and university campuses.

2. Discuss the historical origins of the Bill of Rights,

219
 noting its main uses before and after the Civil War.

3. Define the meaning of "selective incorporation" and

examine how this process impacted upon the relationship
of the Bill of Rights to state governments.

4. Explain why freedom of speech, press and assembly are

paramount in the Bill of Rights. Also note the
historical origins of those freedoms.

5. Define those key doctrines relating to freedom of speech:

prior restraint, clear and present danger, fighting
words, balancing, and fundamental freedom.

6. Delineate the various limitations on three types of

speech: commercial speech, libel, and obscenity.

7. Summarize the meaning of the establishment of religion

and free exercise of religion clauses as well as the
doctrine of church-state separation.

8. Specify the various rights of the accused, noting the

impact of key Supreme Court rulings upon those rights,
such as Mapp vs. Ohio and Miranda vs. Arizona.

9. Review the types of efforts taken to ensure an impartial

jury.

10. Discuss the implications of plea bargaining.

11. Summarize how the right to privacy relates to the

abortion issue and, more specifically, the continuing
controversy over the Roe vs. Wade decision.

Key Terms

balancing doctrine libel

civil liberties Mapp vs. Ohio
220
civil rights amendments Miranda vs. Arizona
clear and present danger obscenity
doctrine plea bargain
commercial speech prior restraint doctrine
double jeopardy doctrine
due process clause public defender
establishment of religion right of privacy
clause selective incorporation
fighting words doctrine separation of church and
free exercise of religion state doctrine
clause sequester
fundamental freedoms trial venue
doctrine tyranny of the
Gideon vs. Wainwright majority

Outline

I. Origins of Civil Liberties in the United States

The meaning of civil liberties in the United States has been

shaped by the Supreme Court, political debates, and
election outcomes. It reflects the basic values shared
by most citizens.

A. Origins of the Bill of Rights

In spite of the fervor over individual rights

during the American revolution, the framers of the
Constitution did not include a Bill of Rights.
During ratification, the Federalists promised to
add a Bill of Rights later.

B. Few Civil Liberties Before the Civil War

Prior to the Civil War, the rights listed in the

Bill of Rights did not play a significant role in
American politics. Except, ironically, the Fifth
Amendment due process clause was used to support
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 those owning slaves.

This was due to the wording of the First Amendment,

which specified it applied only to Congress and the
1833 case of Barron vs. Baltimore, which said all of
the rights in the Bill of Rights applied only to
Congress.

C. Applying the Bill of Rights to State Governments

The Civil War amendments extended greatly the

protection of civil rights.

The 14th Amendment has been particularly

important in that it contained a "due process"
clause that was explicitly directed at state
governments.

Relying on selective incorporation, the Supreme

Court has applied most of the provisions of the
Bill of Rights to the states through the 14th
Amendment's due process clause (one notable
exception being the second Amendment right to bear
arms).

II. Freedom of Speech, Press, and Assembly

A. Free Speech and Majoritarian Democracy

Free speech is vital to democracy because it allows

debate of issues including the official line
espoused by those in government. Even if the
official line is backed by a majority, the
minority still has the right to speak out.
Majorities can be just as dictatorial as one
despot.

Free speech was justified by John Stuart Mill on

the grounds that the truth will, in the end, always
222
 win out; furthermore, suppression of what is
patently not true merely serves to strengthen
falsehoods. In short, there is nothing, in the
end, to free from free speech.

B. Origins of Freedom of Speech

The colonists believed in the notion of no prior

restraint. Although people could be punished for
publishing material after the fact, anything could
be published once (i.e. no censorship).

The trial of Peter Zenger in the 1730s was a

victory for freedom of speech and press.

C. Clear and Present Danger Doctrine

In its first major decision affecting freedom of

speech, the Supreme Court, in Schenck vs. United
States (1919), enunciated the clear and present
danger doctrine, a principle that said people
should have complete freedom of speech unless their
language gave rise to a clear and present danger.
Justice Holmes wrote that following this principle,
no one would have the right to falsely shout
"fire!" in a crowded theater.

In this case, the Supreme Court, while stating this

principle, upheld Schenck's conviction for
violating the Espionage Act. Schenck was convicted
for mailing antidraft literature to draft-age men.

Applying the principle, which is open to various

interpretations, has not been easy. Yet, two cases
decided in 1931, Stromberg vs. California and Near
vs. Minnesota, were particularly important, because
for the first time, they gave court protection to
the opinions of an extreme group.
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D. Fighting Words Doctrine

During World War II, free speech again came under

attack. The Smith Act prohibited advocating the
overthrow of the government by force. Restrictions
were also passed prohibiting demonstrations against
the draft.

The Supreme Court upheld these restrictions on the

grounds that fighting words were not protected by
the First Amendment. It was the fighting words
doctrine that many university administrators
invoked in the early 1990s when they tried to
enforce ethnic tolerance on campus.

E. Balancing Doctrine

Civil liberties were not restored following the end

of World War II. Fear of the spread of communism
(fed by McCarthyism) resulted in Congress requiring
all employees of the federal government to take an
oath swearing loyalty to the United States.
The Supreme Court, relying now on a balancing
doctrine, upheld prosecutions under the Smith Act.
This doctrine was clearly a limit on the more
strenuous clear and present danger doctrine.

McCarthy, in the end, was challenged not by the

Court but by politicians.

F. Fundamental Freedom Doctrine

After the political demise of Senator McCarthy,

Americans were in a mood to be more protective of
civil liberties. The Supreme Court became
committed to the fundamental freedom doctrine,
which said that some constitutional provisions
(such as free speech) have a preferred position
224
 because they are basic to the functioning of a
democratic society. It became the Court's
governing doctrine during the 1960s, in the midst of
the Vietnam war.

In virtually every case that came before it, the

Court ruled against efforts to suppress free
speech. A significant case in this regard was the
Pentagon Papers case (New York Times vs. United
States, 1971). More recent examples of the Courts
commitment to free speech are the flag burning
cases (Texas vs. Johnson, 1989 and Eichman vs.
United States, 1990).

Even conservatives on the Court voted to strike

down a St. Paul ordinance forbidding the placement
of a symbol that "arouses anger, alarm or resentment
in others on the basis or race, color, creed, religion or
gender on public or private proiperty" (R.A.V. vs.
City of St. Paul, 1990).

G. Limitations on Free Speech

Although free speech is now given strong

protection, three types of speech can still be
subject to regulation.

1. Commercial Speech

The court says regulation of commercial speech

(advertising or other speech made for business
purposes) is needed so that customers are not
provided false or misleading information, or to
discourage the consumption of harmful
substances (such as cigarettes).

2. Libel

Libel, the defamation of character by print, is

225
 not protected by the First Amendment. In the
New York Times vs. Sullivan case (1963), the
Supreme Court ruled that for a public official
to win a libel suit, they must demonstrate not
only that what was printed was false but that it was
done with actual malice (they knew it was false
or they had a reckless disregard for the truth.)

3. Obscenity

Obscenity is not protected by the First

Amendment. The Court has struggled with the
definition of obscenity, but overall, it seems
to say that local communities may, if they
wish, ban hard-core pornography.

III. Freedom of Religion

The First Amendment contains two provisions relating to

religion: the no establishment clause and the free
exercise clause.

A. Establishment of Religion Clause

Religious issues often arise in conjunction with

the provision of public education, in good part
because many think schools need to teach not only
reading and arithmetic but morals and values as
well.

The Court has pretty much followed Thomas

Jefferson's separation of church and state
doctrine, which recognizes a wall separating
government from religious activity.

This has usually prevented tax money from going to

support parochial schools. It has also resulted in
prohibiting teacher-led school prayer in public
schools (along with sacred moments of silence)
226
 and legally mandated Bible readings in public
schools.

In 1990, however, a more conservative Court relaxed

the ban on prayer somewhat, saying students may allow for
Bible-reading or prayer clubs as long as other
clubs are allowed to use school property. Other
recent decisions (such as Agostini vs. Felton) have
opened up windows in the wall of separation between
church and state.

B. Free Exercise of Religion Clause

In applying this clause, the Court has prohibited a

state from closing all private religious schools,
requiring those who object on religious grounds from
saluting the American flag (having upheld the law just
three years earlier), and allowed the Amish to refuse
to follow the law requiring mandatory school attendance.

C. Establishment of Religion or Free Exercise?

The debate over school choice (using vouchers),

which surfaced during the 1996 and 2000
presidential elections, involves weighing the
establishment of the religion clause against the free
exercise clause.

The Supreme Court has yet to decide the issue of

school vouchers, but in a 1983 case (Mueller vs.
Allen) the Court ruled that tax breaks can be given
to families who send their children to religious
schools, provided the same tax breaks are available
to families sending their children to public
schools. It remains to be seen if the Court will
extend this decision to the use of vouchers. Who
is next appointed to the Supreme Court could affect
the outcome of such a decision.

227
IV. Law, Order, and the Rights of Suspects

The procedural rights that protect the accused are

often thought to come into conflict with the need for
government to maintain social order. Some believe that
carefully enforcing procedural rights will result in
the guilty going free. Others believe that unless
procedural safeguards are carefully observed, innocent
people will be unjustly convicted.

A. Election Politics and Criminal Justice

Politics affect criminal justice since law and

order is a major concern for many Americans.
Politicians feel obligated to "do something" about
crime.

Whether crime rates are actually rising is not so

easy to determine because many crime statistics
are notoriously unreliable. Most victims of
homicides are black and male. For older men, the
murder rate has decreased since the 1980s, but it
rose sharply for young, particularly black, males
in the early 1990s.

B. Search and Seizure

The Fourth Amendment requires the police to get a

warrant before they search a private dwelling. To
obtain the warrant, the police must demonstrate that
there is probable cause that a crime has been
committed. Improperly obtained evidence cannot be
used in court (Mapp vs. Ohio, 1961).

In early 2000, a unanimous Supreme Court ruled that

police may sometimes stop and search people because
they turn and run when they see the police
approaching (running--the Court reasoned--is
cause for reasonable suspicion).
228
D. Immunity Against Self-Incrimination

The Fifth Amendment prevents the government from

coercing an individual in a criminal case to
testify against themselves. The Warren Court in
the Miranda case ruled that police must inform
those being arrested of this right before
questioning them. If they do not, the testimony
cannot be used in court (except to impeach the
veracity of the suspect were he/she to take the
stand).

In 2000, the Supreme Court revisited the Miranda

decision (judging a provision in a 1968 law that
some thought overruled Miranda); the Court upheld
that decision partially on the grounds that warning
people of their right to remain silent had become
part of our culture.

E. Impartial Jury

Following the Sheppard vs. Maxwell (1966) case,

the Supreme Court established several criteria
to help guarantee an impartial jury trial:

a. Trials should be postponed until public

attention has subsided.

b. Jurors should be screened to exclude those

with extensive knowledge of a case or a
biased opinion.

c. Judges should instruct jurors to base their

decisions solely on the evidence presented
in the trial.

d. Jurors may be sequestered during a trial.

229
 e. Courts should consider changing a trial
venue in order to keep jurors from being
exposed to pretrial publicity.

F. Legal Counsel

The Warren Court ruled that the Sixth Amendment

guarantees everyone accused of a crime the right to
legal counsel even if they can't afford an
attorney.

Since not many lawyers wanted to volunteer their

services to the poor, many states created the
office of public defender to represent indigent
criminal suspects.

Public defenders are often not respected by police

and even their own clients (who view them as
crummy lawyers).

G. Double Jeopardy

The Supreme Court has ruled that a person may be

tried in federal and state courts for the same
offense and this does not constitute double
jeopardy.

H. Rights in Practice: The Plea Bargain

In most cases, the criminally accused is not tried

by a jury. Trial court judges depend on the
willingness of prosecutors and defenders to settle
cases before going to trial. Defenders and
prosecutors are usually expected to try to arrange
a plea bargain.

The extensive use of the plea bargain has resulted

in some politicians calling for a "three strikes
and you're out" policy. After conviction of three
230
 felonies, a person would receive life imprisonment,
whether or not a plea bargain is struck.

The United States now seems to have the largest

incarceration rate in the world. Does this reduce
crime? The evidence is inconclusive.

V. The Right of Privacy

Although not explicitly mentioned in the Constitution,

the Supreme Court, relying on the Ninth Amendment, has
recognized the right of privacy.

A. Regulation of Sexual Behavior

The Court declared a Connecticut law prohibiting
the use of contraceptives between consenting
married couples unconstitutional in 1965.

In 1986, however, it upheld a Georgia law outlawing

sodomy (in this case between two males).

In both cases, the court majority decided in a

manner consistent with the views of a majority of
voters.

B. Abortion: Right to Life or Right to Choose?

In Roe vs. Wade (1973), the Court declared that the

right of privacy was broad enough to include at
least a partial right of abortion. In response,
the right to life movement became engaged in state
and national politics. In response, Congress
enacted legislation in 1976 that prevents coverage of
abortion costs under government health insurance
programs, such as Medicaid. The Supreme Court
began to declare constitutional certain
restrictions on abortion. When given the chance to
overrule its Roe decision in the 1992 case of
Planned Parenthood vs. Casey, the Court refused to
231
 do so. It has, in close conformity to public
opinion, upheld laws requiring teenagers to inform
their parents before getting an abortion but
struck down laws requiring women to get their
husbands’ consent before getting an abortion.

Ideas for Lectures and Discussion

1. The Court's interpretation and application of the Fourth

Amendment's search and seizure clause is very complex.
One exception to the search warrant requirement touched
upon in the text was the automobile exception. Below are
some others.

A. Consent Search

If police ask a person for permission to search, say,

an apartment, and if a person gives it, then the
police do not need a warrant. Any incriminating
evidence the search turns up could be used in court
(not subject to the exclusionary rule).

B. Search Incidental to a Valid Arrest

Police may, when serving an arrest warrant, search

the person being arrested. If they find
incriminating evidence, they may seize it and use it
in court (not subject to the exclusionary rule).

C. Plain View Exception

Police may, when serving an arrest warrant, seize

evidence in the immediate vicinity of the person
being arrested and that is in plain view. They may
do this without a warrant, and the evidence may be
used in court (not subject to the exclusionary
rule). They may not go ransacking through the house
or apartment without a warrant. The rationale for
232
 this exception, in addition to preserving easily
destroyed evidence, is the protection of police
officers.

D. Stop and Frisk

Police may, if they have a high suspicion that a

crime has taken place or is about to take place, stop
individuals and pat down their outer garments. If
they clearly detect incriminating evidence, they may
seize it without a warrant and this will not be
subject to the exclusionary rule. This is the only
exception that does not require "probable cause."
Police may not, however, as part of this search,
reach inside pockets, etc.

2. The Ninth Amendment

In discussing the right to privacy, the text mentions the

Ninth Amendment. This amendment has an interesting
history that speaks to what the framers thought of
individual rights. Here briefly are the facts
surrounding the origin of the Ninth Amendment.

Federalist 84:
In this essay, Hamilton explains why the framers did not
include a Bill of Rights in the Constitution. Hamilton
gives two broad reasons for why the framers did not
include a Bill of Rights.

Unnecessary

First, Hamilton states that a Bill of Rights was

unnecessary. This is true for two reasons:

A. Rights are already included in the Constitution as

written in 1787.

233
 Art. I, Sec. 9, cl. 2 - privilege of habeas corpus
Art. I, Sec. 9, cl. 3 - no Bill of Attainder
Art. I, Sec. 9, cl. 3 - no ex post facto law
Art. I, Sec. 9, cl. 7 - no title of nobility
Art. III, Sec. 2, cl. 3 - trial by jury in all crimes
Art. III, Sec. 3, cl. 3 - definition, proof, and
punishment for treason

B. Another reason a Bill of Rights is unnecessary is

due to the democratic nature of the U.S. Constitution.
Here is how Hamilton puts it: "It is evident,
therefore, that, according to their [Bills of Rights]
primitive signification, they have no application to
constitutions, professedly founded upon the power of
the people and executed by their immediate
representatives and servants. Here, in strictness,
the people surrender nothing; and as they retain
everything they have no need of particular
reservations."

Dangerous
Surprisingly, Hamilton also argues that a Bill of Rights
would be dangerous. Why? Hamilton knows that not all
rights can be listed in the Constitution. Even if one were
to try to list all rights, it is likely that some would
inadvertently be omitted. This would be dangerous. The
reason is because those in government could infringe on rights
not listed in the Constitution, claiming that if the
people wanted them protected they would have listed them.

In other words, the government would use the absence of

rights listed in the Constitution as a pretext for
ignoring the protection of those rights.

Enter the Ninth Amendment:

Madison, the Father of the Bill of Rights, also believed

that a Bill of Rights was unnecessary. He was, however,
eventually persuaded by Jefferson that a Bill of Rights
234
 would not hurt. Except he also thought Hamilton's
argument about the danger of a Bill of Rights was a good
one. Thus he proposed what became the Ninth Amendment,
or what has been called the forgotten amendment. This
is the only sentence in the Constitution that tells the
reader how to interpret the Constitution. It basically
states that the reader should not take the listing of
rights in the first eight amendments to imply that these
are the only rights that the government must respect.

The Irony of Bork's Approach:

This is why some found it ironic that Robert Bork, an
advocate of original intent, told the Senate Judiciary
Committee, during his confirmation hearings that if
confirmed as a Supreme Court justice, he would not
respect the right to privacy. His reason was that the
right was not explicitly mentioned in the Constitution.

Yet it was to prevent this kind of reasoning that the

father of the Constitution and father of the Bill of
Rights wrote, and the Congress included, the Ninth
Amendment in the Bill of Rights.

3. The text briefly discusses some no establishment cases.

Below is a more in-depth discussion of several of these
cases.

A. Engel vs. Vitale, 370 U.S. 421 (1962)

This case dealt with the neutral prayer mandated in

public schools. New York authorities thought
they had written a prayer that would offend no one
and thus would not violate the no establishment
clause.

The authorities had misjudged the meaning of the

no establishment clause which the Court had
interpreted in an earlier case to prohibit not merely
government favoritism towards a particular religion
235
 but favoritism towards religion over non-religion.
Both violate the no establishment clause.

B. Abington School District vs. Schempp, 374 U.S. 203

(1963)

After the Engle decision, the authorities in

Pennsylvania thought the problem was that the
government wrote the prayer. So they mandated a
prayer (the Lord's Prayer) and a Bible reading at the
beginning of the school day.

The Supreme Court, noting that this was favoring

religion over non-religion declared it
unconstitutional.

C. Epperson vs. Arkansas, 393 U.S. 97 (1968)

The Court ruled that Arkansas could not prohibit the

teaching of human biological evolution because it
conflicted with the biblical account of creation.

D. Lemon vs. Kurtzman, 403 U.S. 602 (1971)

In this celebrated case, the Court articulated the

test it used in no establishment cases. It had
been following most of this test prior to this case,
but it had never articulated it as the test for such
cases. Below are the components of the three-part
test. A law must pass every component or it is
unconstitutional.

1. The law must have a secular purpose.

2. The law's effect must be to neither advance nor
inhibit religion
3. The law must not create an excessive entanglement
between church and state.

E. Stone vs. Graham, 449 U.S. 39 (1980)

236
 The Court struck down, as violative of the no
establishment clause, the posting of the Ten
Commandments in public school classrooms. The Court
was not persuaded by the fact that the posters were
not read to the students, were paid for by private
donations (not taxpayer money), and had a disclaimer
at the bottom noting that it was an historical
(rather than religious) document.

F. Wallace vs. Jaffree, 472 U.S. 38 (1985)

The Court struck down Alabama's moment of silence

law primarily due to the historical record that
clearly demonstrated that the moment (which
mentioned prayer) was a way of getting prayer back
into the public schools.

G. Edwards vs. Aguillard, 482 U.S. 578 (1987)

The Court struck down a Louisiana law that mandated

the teaching of creation science in public
schools if human biological evolution was taught.

H. Lee vs. Weisman, 112 S. Ct. 2649 (1992)

The Court struck down a public school’s wish to invite

a Rabbi to lead a prayer at an eighth-grade graduation
ceremony.

List of Transparencies

Each transparency listed is followed by the Text Figure

(or Table) number, followed by the text page.

T37 Key Changes in the Rights of the Accused, 16.1, 536

237
CHAPTER SEVENTEEN

Civil Rights

OVERVIEW

Civil rights groups have often been successful by persuading a majority of voters that
they deserve equal treatment. Usually, the Supreme Court has followed the mood of the
country in such matters. The Court ruled against the Civil Rights bill that followed the
Civil War and established the doctrine of "separate but equal" in the latter part of the
nineteenth century. Minorities achieved a big victory with passage of the 1964 and 1965
civil rights legislation. When Northerners became upset with racial demands, the Court
struck down de jour discrimination but upheld de facto discrimination.

The modern women's rights movement grew out of the civil rights movement. Although
the Equal Rights Amendment was not ratified, the Supreme Court has struck down many
instances of gender discrimination. The civil rights movement also spawned new
attention to the rights of the disabled. Once again, the most important steps were taken
by Congress, not by the courts.

LEARNING OBJECTIVES

1. Explain and summarize the historical origins of Civil Rights in the nation.

2. Review the role of the National Association for the Advancement of Colored People
(NAACP) in the courtroom and how it efforts eventually led to segregation being
declared unconstitutional in the 1954 case of Brown vs. Board of Education.

3. Summarize those key political, economic, and social changes that transformed the
civil rights movement in the post-Brown era, including the use of civil disobedience, the
Civil Rights Act of 1964, the Voting Rights Act of 1965, a changing Supreme Court, the
controversy over affirmative action, and the persistent problem of black unemployment
and poverty.

4. Explain the civil rights needs of other minorities in America--Latinos, Asian-

Americans, and Native Americans--as well as trace the progress (or lack of progress)
associated with meeting those needs.

235
5. Trace the history of women's rights in America and include such specific issues as the
ERA, sexual discrimination and harassment in the workplace, and single-sex education.

6. Review the civil rights needs of the disabled and summarize the type of progress the
disabled have made in recent years.

KEY TERMS

affirmative action National Association for the

black codes Advancement of Colored
Brown vs. Bd. of People (NAACP)
Education Plessy vs. Ferguson
civil disobedience poll tax
civil rights quota
de facto segragation Reconstruction
de jure segregation restrictive housing
equal protection clause convenant
Equal Rights Amendment eparate but equal
glass ceiling doctrine
grandfather clause state action doctrine
Jim Crow laws suspect classification
white primary

OUTLINE

I. Origins of Civil Rights

The term civil rights refers to the right to equal treatment under the law. The
pertinent passage of the Constitution is the equal protection clause of the 14th
Amendment. Although minorities rely on this clause, politicians listen to what
majorities say the clause means since voters elect them. Minorities often react by
turning to the courts. Yet, like politicians, judges are sensitive to majorities, too.

236
A. Conflict Over Civil Rights After the Civil War

At the end of the Civil War, some southern states passed black codes, laws that
applied to newly freed slaves but not to whites. During Reconstruction, Congress
passed the Civil Rights Act of 1866 to guarantee every citizen (regardless of race
or color) the same right to the full and equal benefit of all laws. In addition,
Congress established a Freedman's Bureau, which provided blacks with education
and other benefits.

As the years passed, there were charges of fraud, corruption, and mismanagement
leveled against both black elected officials and carpetbaggers. The Republicans
won the presidency in 1876, but only after promising Democrats they would
remove the Union army from the South. This brought the end to Reconstruction,
and the whites reinstituted many of the old racial patterns.

The Ku Klux Klan used intimidation to keep blacks from voting. In addition,
laws were passed making it difficult for blacks to vote: poll taxes, grandfather
clauses, and the white primary. African-Americans were also subject to Jim Crow
laws, state laws that segregated the races from each other.

B. Early Court Interpretations of Civil Rights

With little public support for civil rights, the Supreme Court of the day took a
very restrictive view of the equal protection clause. Relying on the state action
doctrine, the Court declared the Civil Rights Act of 1876 unconstitutional. In the
landmark case of Plessy vs. Ferguson (1896) it developed the separate but equal
doctrine.

C. Blacks Get Electoral Power

Progress in the dismantling of segregation took place when blacks left the South
for the North where they could vote. Northern political machine politicians were
willing to allow blacks to vote. By the 1930s, African-Americans used their votes
to win a small place in the politics of a few big cities. The biggest breakthrough
came when many gave them credit for casting the decisive votes electing Harry
Truman as president.

237
 D. Awakening the Supreme Court to Civil Rights

The NAACP relied on the courts to achieve racial equality. After initial failures,
the NAACP won cases declaring the white primary unconstitutional and getting
restrictive housing covenants declared unenforceable.

II. Redefining the Equal Protection Clause

Civil rights groups tried for years to get the Plessy decision overruled. Early
successes came in the area of higher education. Finally, the landmark Brown
decision was handed down in 1954, overturning Plessy.

The Court reasoned that racially segregated public schools were inherently
unequal (by creating an inferiority complex in the minds of students) and thus in
violation of the 14th Amendment's equal protection clause.

The Court ordered schools to desegregate "with all deliberate speed," which
southern school boards used to resist the decision.

Later, the Court declared race was a suspect classification that would be closely
scrutinized by the courts to make sure it did not violate equal rights.

A. Civil Rights After Brown

Three civil rights organizations came into being immediately after Brown: the
Congress of Racial Equality (CORE), the Student Nonviolent Coordinating
Committee (SNCC), and the Southern Christian Leadership Conference (SCLC).

One year after Brown, a more militant phase of the civil rights movement erupted,
involving acts of civil disobedience. Using boycotts, protests, and acts of civil
disobedience, the southern civil rights movement gained strength by winning
sympathetic coverage in the northern press.

Southern government officials opposed the civil rights movement. Most southern
members of Congress signed the Southern Manifesto. When school began in the
fall of 1964, 10 years after Brown, only 2.3 percent of black students in the states
of the Old Confederacy attended integrated schools.

238
 Through the vote, progress was gradually made. Presidential candidates,
including John Kennedy, paid more attention to civil rights issues. Then in 1963,
Martin Luther King gave his "I have a Dream" speech to 100,000 black and white
demonstrators on the Washington, D.C. mall. Kennedy's assassination just a few
months later generated an outpouring of moral commitment to racial justice
unseen since the closing years of the Civil War.

In response, Congress passed the 1964 Civil Rights Act, prohibiting racial
discrimination in all places of public accommodations. The percentage of black
students in southern schools that included whites increased dramatically from 2.3
percent in 1964 to 91.3 percent in 1972. In 1967, Congress passed a Voting
Rights Act.

B. Decline in Strength of Civil Rights Movement

When Martin Luther King, Jr. began attacking racial discrimination in the North,
support for civil rights protests among many northern whites dwindled. Civil
violence began to break out in black neighborhoods, beginning in Los Angeles in
1964 and spreading to other cities over the next three years. King's assassination
in 1968 resulted in more violent racial disturbances.

Whites had second thoughts about the movement after this and began opposing
such things as busing, affirmative action, and other programs of racial integration.
Blacks began identifying more with the Democratic Party, and the backlash from
whites helped the Republican Party win five of the eight presidential elections
following the 1964 Civil Rights Act.

C. Supreme Court No Longer Forges Ahead

When some turned to the Supreme Court to further the cause of racial integration,
they were disappointed. Instead, the Court ruled that the Constitution forbade de
jour segregation (segregation imposed by law) but not de facto segregation
(Milliken vs. Bradley, 1974).

Following this decision, very little additional school desegregation took place in
either the North or South.

239
 D. Affirmative Action

Some civil rights groups asked the government and private institutions to develop
affirmative action plans. These range from helping minorities learn about job
opportunities to quotas.

In a 1978 case a white male challenged the affirmative action program at

University of California at Davis. He alleged reverse discrimination. The
Supreme Court struck down the University's quotas but did say that race couldn’t
be used as one of many factors when admitting people.

During the 1990s, all forms of affirmative action came under increasing criticism.
California passed an initiative banning affirmative action (as did Washington) and
a federal court ordered Texas to eliminate race-based preferences from its state
university admissions system. The growing ambivalence toward affirmative
action could be seen in the positions taken by George W. Bush and Al Gore.
Bush opposed it and Gore, though supporting it, opposed the use of quotas.

E. Elections, Courts, and Civil Rights: An Appraisal

In spite of the electoral and educational gains of blacks in recent decades, the
process of racial change has slowed in recent years. Poverty among blacks has hardly
changed since 1970. Some say this is due to continuing racism. Others insist that
welfare has given people an incentive not to work.

III. Civil Rights of Other Minorities

The civil rights of groups other than African-Americans become legally and
politically distinctive under two circumstances: (1) when groups eligible for
affirmative action need to be defined, and (2) when language or other issues arise.

A. Latinos

Currently, Latinos constitute 9 percent of the population of the United States only
three percentage points behind African Americans. Yet they have not been as
politically effective. Many more of them lack citizenship, and fewer of them
vote. Also, they come from different countries, preventing them for being united
with a common background.

240
 Various groups represent Latinos. One group, the Mexican American Legal
Defense and Education Fund (MALDEF), focuses on voting, education, and
immigration issues. Partly due to this group's efforts, schools must provide
special educational programs for those not proficient in English, and ballots, in
some instances, must be printed in languages other than English.

An example of Latinos influencing politics was the victories of several Democrats

following Republican support and the passage of Proposition 187 in California in
1994.

The case of Elian Gonzalez revealed the extent to which an ethnic group can
mobilize itself for political action and the clear limits to what such a group can
achieve once a majority of Americans take another point of view.

B. Asian-Americans

Asian-Americans constitute about 2 percent of the population. They have not

emphasized a political agenda. They are internally divided among many different
nationalities. Unlike other ethnic minorities, they are not supportive of
affirmative action and they tend to vote Republican.

C. Gays and Lesbians

Some of the most contentious political debates in the late 1990s concerned the
rights of gays and lesbians; not accidentially, this was a time when homosexuals
were more engaged in electoral politics than ever before.

In the last decade, the American public grew to believe that equal job
opportunities ought to be accorded gays. (Other gay issues--gay marriages--have
not fared so well with the public.)

D. Native Americans

At the time of the writing of the Constitution, Native Americans were considered
to be members of a foreign nation. The Supreme Court still considers the treaties
Native Americans entered into with the American government binding. As such,
they have certain rights and privileges not available to other groups.

241
 Recently, the Court has ruled that they have a right to provide commercial
gambling on tribal property, even when it is otherwise forbidden by state law.

In 1978, Congress passed the American Indian Religious Freedom Resolution,

which has been interpreted to mean Native Americans have religious freedoms
comparable to other citizens.

IV. Women's Rights

The equal protection clause of the 14th Amendment has been interpreted as
pertaining to the legal treatment between men and women.

The first struggle for women's rights focused on the right to vote. Since the
1960s, women's groups have achieved four civil rights objectives. The
accomplishment of each (discussed below) required both electoral involvement
and courtroom presentations..

A. The Right to Equality Before the Law

Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of
sex (as well as race, religion, or national origin).

In 1972, Congress proposed the Equal Rights Amendment. The Amendment was
ratified by 35 states, but this was three short of the number needed to become a
part of the Constitution.

In the 25 years after the ERA campaign began in earnest, women's place in
politics changed more dramatically than in any previous quarter century.

B. Initial Court Response to Women's Rights

For the first time the Supreme Court struck down a law treating men and women
differently in 1971. It has subsequently declared many other such laws
unconstitutional; yet, it has not treated sex as a suspect classification. It has
upheld gender distinctions within the military.

In order for a law treating men and women differently to be upheld, the Court
must be convinced the law furthers important governmental objectives.

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C. Discrimination in the Workplace

The Supreme Court has ruled that business

necessity may permit an employer to hire a person
of particular gender. It also ruled (Wards Cove vs.
Antonio, 1989) that federal law required those
bringing discrimination suits to bear the burden of
proof; Congress overruled this interpretation of
Title VII of the 1964 Civil Rights Act.

D. Sexual Harassment

The Supreme Court first ruled on the meaning of

sexual harassment in the workplace in 1986 (Meritor
Saving Bank vs. Vinson). The Court ruled that
sexual harassment had to be experienced as
personally devastating before it constituted a
violation of the Smith Amendment.

Following the Clarence Thomas appointment and

significant political gains in 1992, the Court
expanded the meaning of sexual harassment.

E. Single-Sex Schools and Colleges

Single-sex education has long been a significant

part of American education. Although many former
single-sex universities now admit equal numbers of
males and females, single-sex education survives at
many private women's colleges.

Despite the claims of some that single-sex

educational institutions can be beneficial, many
feel that education that is separated by gender
cannot be equal.

In 1996, the Supreme Court ruled that women must be

admitted to the Virginia Military Institute.

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 F. The Future of Women's Rights

Despite many gains, women have yet to break through

what is known as the glass ceiling, the invisible
barrier that has limited their opportunities for
advancement to the highest ranks of politics,
business, and the professions.

V. Americans with Disabilities

Disabled people are about 9 percent of the working-age

population. They have one political advantage that
both women and minorities lack: Every person runs the
risk of someday becoming disabled. The rights of
disabled people thus have broad appeal yet this
advantage is offset by a number of political
limitations.

At the prodding of E.L. Bartless, Congress enacted in

1968 a law requiring that all future public buildings
built with federal monies provide access for the
disabled. Subsequently, the courts became more
sensitive to the concerns of the disabled. In 1976,
Congress passed a law guaranteeing all handicapped
children the right to an appropriate education.

Then the 1991 Americans with Disabilities Act made it

illegal to deny employment to individuals on the
grounds that they are handicapped.

The courts have shown considerable reluctance to

interpret the rights of the disabled in sweeping terms.

There has also been somewhat of a backlash toward laws

designed to assist the disabled. It remains to be seen
if such complaints will result in a weakening of the
protection of the rights of the disabled.

Ideas for Lectures or Discussion

244
1. This chapter makes reference to some higher education
cases that preceded the Brown decision. Here are the
facts of two cases that are not mentioned in the text
but that demonstrate how the Court was beginning to
emphasize the "equal" portion of the separate but equal
doctrine.

Miss Louise Sipuel:

In 1946, Miss Louise Sipuel, a black woman who had
graduated with a bachelor's degree from the all-black
Langston University, applied for admission to the
University of Oklahoma Law School. The president of the
university refused to admit her. She asked the
university officials if it was due to her academic
credentials or her race.

The university informed her that she was academically

qualified, but it was illegal to admit a black into an
all-white university. The university president could be
fined, professors teaching classes with mixed races could
be fined, and students could be fined for attending class
with students of a different race.

Thus, the university could not admit her if it wanted to

since this would be against state law.

A Test Case:
The NAACP heard about Miss Sipuel's situation and offered
to provide her with counsel to test the law in
question. She agreed, and the NAACP assigned her a
lawyer: Thurgood Marshall.

Eventually the case came before the U.S. Supreme Court.

The court ruled that the separate but equal doctrine
meant Oklahoma had to provide her with a law education as
soon as it would provide a legal education for any other
racial group or else close the University of Oklahoma
School of Law. Tthere was no law school for blacks. This
was not a rejection of the Plessy decision; rather, it

245
was enforcing Plessy. The Court was not demanding racial
integration for law schools. In enforcing separate but equal
it was merely pointing out the obvious: There was no
separate law school for Miss Sipuel.

The Supreme Court handed down this decision about two

weeks before the new term was to begin in January. It
would appear that the regents, not wanting to close the
law school, would have to admit Miss Sipuel. Yet the
regents hit upon another solution. During the time
between the decision and the beginning of the term, the
regents established the Langston School of Law. They
used a room at the state Capitol building as the entire
law school. There was one dean and two professors
assigned to the school. Miss Sipuel was told she could
use the county law library for her research.

Was this facility and the law education it could provide

equal to the one the white students at the University
of Oklahoma were receiving? The NAACP didn't think so.
It was back in court claiming that this was in violation
of the "equal" component of the separate but equal
doctrine.

Meanwhile, six other black students who were also

graduating from Langston saw the game being played by the
university and decided to play along. On the last day
of enrollment, they applied for admission to the
University of Oklahoma in six different graduate
programs. It was too late for the university to follow
the strategy they had used in Sipuel's case and create
six new black graduate schools. Not only that, but it
would be extremely costly. The university responded by
refusing admission to all six students.

The student body was upset about the university's refusal

to admit Miss Sipuel. A large group met on the campus
and burned a copy of the 14th Amendment (which
contains the equal protection clause), collected the
ashes, and sent them to President Truman to protest the

246
University's actions.

George McLaurin:
One of the six students, George McLaurin sued the
university charging it with violating the equal
protection clause of the 14th Amendment. The case began
in federal District Court, which ruled that McLaurin must
be admitted as soon as a white would be admitted or
discontinue classes for white students. This was the
same directive the Supreme Court had issued in the Sipuel
case. The University complied, sort of. They placed Mr.
McLaurin's chair in a broom closet (the university called
it an alcove) at the back of the room so that he could
peer out and see the instructor and blackboard but be
hidden from view from the rest of the students. His
lawyer was back in court suing claiming that this was
separate but not equal. Notice the challenge, here
is not directly to the Plessy decision. Both Sipuel and
McLaurin are merely asking, in the strict sense, for
Plessy to be enforced.

The Outcome:
Eventually Miss Sipuel and Mr. McLaurin won. Oklahoma
passed a law allowing blacks to enroll in graduate
programs. Miss Sipuel was admitted to the OU Law School.
The university did, however, build a kind of fence in the
classroom, seating whites on one side and blacks on the
other.

Within a few years, the Court ruled that it was impossible

to segregate students on the basis of race in public
schools. Even if the buildings, student body, and
teachers were equal, the segregation created an
inferiority complex in the minds of some of the students.
In short, racially segregated public schools were
inherently unequal.

Postscript: Miss Sipuel went on to get her law degree

from the University of Oklahoma and years later was
appointed to the Board of Regents for the University.

247
 2. A case referred to in the text Craig v. Boren (1976)
originated in Oklahoma and deals with sex discrimination:

Below are the facts of the case along with additional

details that come from the people that were involved in
the case.

Facts of the Case:

In the early 1970s, Oklahoma had a law for the age at
which one could buy 3.2 beer. The law set the age at 18
for females, but males had to be 21.

One night a male student at a party was told to go buy

more beer. When he got to the Honk N Holler he was not
allowed to buy the beer since he wasn't 21. At the time,
the student was enrolled in an introductory American
government class. He went to his professor's office and
expressed his displeasure with the different ages for
males and females to buy beer. The professor didn't
tell him to get a lawyer, but told him if he was that
upset about it, he might want to consult with one.

The student did just that. The professor, having gone on

to another university on the West-coast was surprised one
day in the library to pick up a journal and discover that
the student had, in fact, sued, and the U.S. Supreme
Court was deciding the case.

Earlier Precedent:
The Court had only decided a few sex discrimination cases
prior to this case. In 1971 the Court, for the first
time struck down a law discriminating on the basis of
sex. The case was Reed vs. Reed. Idaho had a law that
said if parents of a deceased sibling were equally fit to
control an estate, the preference should go to the
father. The reason Idaho gave for the laws was
administrative convenience. In other words, it would
be inconvenient for the courts to have to spend time
trying to figure out which parent was more fit to

248
administer the estate. It would be easier to just assign
the estate to one person in this case, state law dictated
the father, rather than expend the energy to try to
discover who was actually more qualified.

The Supreme Court struck the law down.

A New Test:
Some, such as Ruth Bader Ginsburg, wanted the Court to
strike it down using the same test the Court was then
using (and continues to use) in race discrimination
cases: strict judicial scrutiny test. Under this test,
the Court strikes down a law discriminating on the basis
of race (or violating a constitutional right) unless the
government can demonstrate a compelling need for the law.
Although a majority of the Court voted to strike the law,
a majority did not agree to use the strict judicial
scrutiny test.

In Craig vs. Boren the state of Oklahoma justified the

different ages for buying beer with Driving Under the
Influence (DUI) statistics. The state argued that when
going out on dates it was males that usually drove.
Therefore, they wanted the males to be more mature
when purchasing beer. The statistics seemed to
demonstrate that this was true.

The Court, however, was not convinced. Although the

statistics were in the state's favor, the Court noted
that the difference between DUI arrests for males and
females was slight. It did not take much convincing for
the Court to realize that the law's intent could easily
be undermined by the females going into the establishment
to buy the beer for males.

It was in this case that a majority of the Court

specifically recognized a middle test that would be
used in sex discrimination cases. Sometimes the test is
referred to as the heightened scrutiny test. The Court
will only uphold a law treating men and women differently

249
 if it furthers important governmental objectives.

Rational Basis Test:

No longer would sex discrimination come under the only
remaining test used in equal protection cases: the
rational basis test. All the government need do in cases
arising under this test was demonstrate a rational
basis for the different treatment under the law.

Strict Scrutiny Test:

Now there are three tests for equal protection cases.
One, is the strict judicial scrutiny test. This is the
most difficult test to pass. The burden of proof is on
the government to demonstrate to the court that the
government was compelled to treat people differently.
This test is applied to cases dealing with an inherently
suspect classification (race) and ones in which the law
treats people differently and in the process deprives
them of fully exercising a constitutional right.

The test used in a gender discrimination case (as discussed

in the Craig case) is the second test. As with strict
scrutiny, the burden of proof rests with the government
to justify why the law treats people differently. To win,
government must demonstrate the discrimination
furthers an important governmental interest.

The rational basis test is used in all other cases. Here

the burden of proof is with the person being treated
differently. All the government need do, to have the law
upheld is convince the court that there is a rational
basis for the law. This is the easiest test to pass.
Clearly, the court in these cases is deferring to the
law-making body.

3. In the Declaration of Independence, Jefferson wrote that

all men are created equal. Given the fact that Jefferson
owned slaves, what might he have meant by this
statement?

250
 A. Jefferson might have penned this phrase to express
the idea that no person has a God-given right to rule
over another. Most recognize that Jefferson was
relying on the writings of Locke when he wrote the
Declaration of Independence. In his Two Treatises on
Government, Locke had provided an extensive argument
against the Divine Right of Kings. Thus, Jefferson
might have been trying to summarize this argument in
this brief statement. Of course, the argument,
broadly taken, could also be used to attack the
institution of slavery.

B. Jefferson might have meant that all are equal before

the law. Under this interpretation, there would not
have to be an inconsistency between equality and
slavery. At a time when most slaves would have been
illiterate, it would have made sense to treat them
differently. The same could be said for any group
(women and children) that could, for different
reasons, be considered disqualified from certain
benefits. In short, the phrase might mean that
equals be treated equally and unequals be treated
unequally.

C. Jefferson might have been stating that all people are

equal in that all humans have a sense of right and
wrong. Jefferson did want to include in the
Declaration of Independence a statement criticizing
the Crown for the slave trade, but Southerners
insisted on taking it out.

List of Transparencies

There are no transparencies for Chapter 17.

251
Chapter Eighteen
DOMESTIC POLICY

Overview

Domestic policy consists of all government programs and

regulations that directly affect those living within a
country. Social policy consists of programs designed to help
those thought to be in need of government assistance. In the
United States a major concern is seeking to balance the needs
of the young and the elderly. Programs for the elderly are
financed lavishly; those for children are not.

Democrats tend to want to spend more on social and

education policy and they usually favor more regulation.
Republicans typically think government spends and regulates
too much. Both, however, tend to agree when it is clear what
the public desires (and for which it is willing to vote).

Learning Objectives

1. Understand and delineate the key stages in the policy

making round.

2. Review the origins and policy landmarks in the

development of social insurance programs.

3. Explain why the social security fund may be approaching

financial disaster unless essential adjustments are made
in the near future.

4. Itemize the risks of change to social security and

summarize the key issues in the politics of Medicare.

5. Explain the role of the American Association of Retired

Persons (AARP) and why senior citizens are so influential
In the political process.

251
6. Review the origins and development of public assistance
programs while discussing such key programs as Aid for
Families with Dependent Children (AFDC), Earned Income Tax
Credit (EATC), Supplemental Social Insurance (SSI), rent subsidies,
and, Medicaid.

7. Summarize the drawbacks of public assistance programs.

8. Review the politics of public assistance.

9. Explain the historical evolution of educational policy as

well as the current politics of education.

10. Discuss the factors that led to the rise of federal

regulation in America.

11. Explain the justifications for regulation, including

natural monopoly, externalities, and protecting the
uninformed.

12. Explain how regulations are shaped by election pressures

on Congress, government agencies, and the courts.

13. Summarize the reasons why Congress has approved

deregulation of some industries.

Key Terms

Aid to Families with policy deliberation

Dependent Children policy implementation
agenda setting policy outcome
blame avoidance policy output
deregulation public assistance
domestic policy regulation

252
Earned Income Tax Credit rent subsidy
Environmental Protection social insurance
Agency social policy
externalities social security
food stamps Supplemental Security
hammer Income
Medicaid Temporary Assistance for
Medicare Needy Families
natural monopoly zone of acceptance

253
Outline

I. Types of Public Policy

Domestic policy consists of all government programs and

regulations that directly affect those living within a
country. These policies come about as the result of a
complex process known as the policy-making round. It
consists of several stages.

The first stage is agenda setting, making an issue

visible enough that important political leaders take it
seriously. The second stage is policy deliberation,
the debate and discussion over issues placed on the
policy agenda. The third is policy enactment, the passage
of a law by public officials. The fourth is policy
implementation, the translation of the law into an
actual set of government programs or regulations. The
final stage occurs when businesses and individuals feel
the effects of the policy.

II. Social Policy

Social policy consists of programs designed to help

those thought to be in need of government assistance.

People may be thought to be in need of help because

they are old, infirm, young, disabled, unemployed, or
poor, or some combination of these. In the United States
a major concern is seeking to balance the needs of the
young and the elderly.

A. Social Insurance for Senior Citizens

As the population has aged, government has expanded

programs to meet the retirement income and medical
needs of the elderly.

B. Origins and Development of Social Insurance

Programs

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During the Great Depression when poverty among the
elderly was particularly acute, President Franklin
Roosevelt appointed an advisory committee to
consider the problem. The committee recommended a
program of social insurance. Under the program,
people would make contributions to a fund during
the years they were employed and receive monetary
benefits when they retired. Congress enacted the
program in 1935 (the Social Security Act) which
created a broad range of social programs.

Initially, the social security program costs the

government very little. Gradually, the program
expanded in the number of people covered along with
the length of their retirement. In 1965, Congress
enacted Medicare, which provided social security
recipients a broad range of medical benefits. In
1972, Congress gave senior citizens a large increase
in their monthly social security check and indexed
this amount to the cost of living.

Because these programs are based on the insurance

principle (people pay into the program and expect
benefits later), a retiree does not have to be
needy to receive benefits.

But social security differs from a true insurance

program in one major respect: It operates at a
loss. From the beginning, social security has
given most people more in benefits than they
contributed in their social security tax.

This is possible due to three factors.

First, the number of workers, and hence the

monetary contributions into the system, has grown.

Second, workers today produce more and earn more

than their predecessors (meaning more money is

255
 available).

Third, workers today pay a higher percentage of

their earnings in social security taxes than their
predecessors did.

Unfortunately, all three of these factors are

disappearing, so unless something is changed, the
social security fund is expected to be running a
deficit by the time today's college sophomores are
50 years of age.

C. Politics of Social Insurance

Social security is a sacred cow. Politicians don't

dare tamper with it.

1. The Risks of Change to Social Security

In 1981, President Reagan suggested placing

limits on the growth of social security. Some
claim that Republican loss of the Senate two
years later was due to this suggestion.

Only once, in 1983, did Congress make

significant cuts in social security benefits.
Since then, no major cuts have been suggested
by leaders of Congress or presidential
candidates of the major parties.

2. Complexities of Medicare

The costs of Medicare have increased rapidly

since 1970. Although Congress has tried to
take steps to prevent increases in these costs,
increases continue. The kind of steps needed
to really lower costs would be politically
unwise for politicians.

3. The Influence of Senior Citizens

256
 Senior citizens have clout due to their
tendency to vote more than the average voter.
They also are more politically active and join
organizations that lobby for their interests.
The American Association for Retired Persons is
the largest interest group in the United States.

4. Broad Support

Young people are supportive of social security,

too. The broad support for social security is
because (1) most people hope to benefit from it
someday, (2) it relieves young people of some
of the burden of caring for their parents, and
(3) it is viewed as deserving (the insurance
factor).

III. Public Assistance to Poor Families

Neither political party is strongly committed to

expanding programs for poor families, and no
association comparable to the AARP defends the
interests of poor families with children.

A. Origins and Development of Public Assistance

Programs

Public assistance consists of programs that provide

low-income households with limited income and
access to essential goods and services. These
safety net programs include the following.

1. Temporary Assistance for Needy Families (TANF)

Congress passed this program in 1996, giving

the responsibility to the states (with some
guidelines states must follow). It replaced
the (AFDC) program created in 1935.

257
 Known as "the welfare program," it was
politically unpopular.

2. Food Stamps

Congress created this program in the 1970s. It

gives people who qualify "stamps" that can be
used to purchase food.

3. Earned Income Tax Credit (EITC)

This program returns the taxes paid to those

who have little income as a way of helping the
working poor. One who fills out a tax return
can receive an EITC reimbursement even if no
taxes have been paid.

4. Supplemental Social Insurance (SSI)

This program provides disabled people of low

income with income assistance.

5. Rent Subsidies

This policy helps low-income families pay their

rent, provided they select designated housing.

6. Medicaid

Established in 1965, this program pays for

medical services for the poor. Today, over
one-fourth of all Medicaid costs cover the
medical expenditures of low-income senior
citizens.

7. Limitations of Public Assistance Programs

The actual government expenditures for programs

to help poor families are only one-tenth as
much as what is spent on the elderly.

258
 Furthermore, programs for poor families are
more restrictive than programs for senior
citizens. Six factors explain this.

a. Fewer Cash Benefits - The elderly get much

more of their aid in cash, which most people
prefer.

b. Less Indexation - Less of the aid to poor

families is indexed to adjust with
inflation.

c. Assistance, Not Insurance - Unlike social

security, programs for families with
children are not paid out of an insurance
fund.

d. State, Not National, Programs - For all the

major programs for poor families (except
EITC), eligibility rules and benefit levels
vary from state to state. Social security,
however, is a national program.

e. Benefits Cannot Supplement Income -

Programs for poor families with children
substitute for other income; they do not
supplement it. Yet for senior citizens,
benefits supplement the recipient's own
resources.

B. Politics of Public Assistance

Programs for poor families with children are poorly

funded and restrictively designed because, unlike
the elderly, children do not exercise direct
political power.
1. Policy Debate

Policy experts disagree as to the cause of the

increasing poverty rate.

259
Liberals say the cause is the government
not providing enough assistance for the poor.

Conservatives say the cause is cultural,

specifically a mentality encouraged by
welfare, in which young people are encouraged
to place short-term pleasures ahead of long-
term goals.

260
 Finally, sociologist William J. Wilson
attributes increasing poverty to the decline of
unskilled jobs.

2. Group Organization

Unlike the elderly, children have no large

group to speak on their behalf. Rather, many
small competing groups take stances as varied
as the alternative explanations for rising
poverty rates.

On the liberal side is the Children's Defense

Fund. On the conservative side is the Family
Research Council.

3. Public Opinion

The general public wavers between liberal and

conservative explanations for rising poverty
rates.

4. Political Parties

Parties, like the public, waver on the issue.

Democrats tend to take a liberal position and
Republicans a conservative position, but
leaders in both parties often search for the
middle ground.

IV. Education Policy

Historically, Americans have supported a large,

well-financed educational system. Though still strong,
the commitment has waned somewhat in recent years.

A. Local Control

Responsibility for education is divided among local

school boards, state departments of education, and

261
 the federal Department of Education, but the bulk
of control over education policy remains at the
state and local levels. Today, 95 percent of the
cost of public education is paid for out of state
and local budgets (each contributing about half).

B. Development of Public Education

The public's commitment to its schools is deeply

rooted. The Confederation Congress was setting
aside land for schools as early as 1785. The flood

of immigrants in the 1800s brought a demand (which

was met) for more schools (one exception being
schools for African-Americans).

Public schools did much to build American

democracy. They helped create a common language.
With their appearance and promise of equal
opportunity, schools reinforced the concepts of
liberty and equality.

Today, 95 percent of public education is paid for

out of state and local budgets.

C. Development of Public Education

As early as 1785, Congress (under the

Confederation) set aside the revenue from the sale
of one-sixteenth of the land west of the Appalachian
Mountains to help pay for the maintenance of public
schools.

Public schools helped build democracy, helped foster

a common language, reinforced a distinctive
American identity built around the concepts of
liberty and equality, and educated the workforce
that operated the new machines that arose from the
industrial age.

262
 D. Contemporary Issues in Education Policy

The traditional commitment to public schools is

slipping. Financial support has increased only
slightly over the past 25 years.

In addition, students aren't learning as much.

Liberals and conservatives disagree as to why.

Liberals say is it a matter of too few resources.
Conservatives say the problem is in how the schools
are run. Critics offer two contrasting solutions.
Some, like President Clinton, advocate national
standards. Others think the solution is in
allowing parents their choice of which schools their
children will attend (the voucher system). It remains
to be seen if the Supreme Court will declare them
unconstitutional.

E. Politics of Education

In recent years, the two major parties have begun to

disagree over several educational issues.
Republicans tend to favor revamping the entire
school system. Democrats, who have been supported
by the National Education Association and the
American Teachers Federation, reject this notion.

For all the current discontent, Americans still

think schools are crucial for achieving the
American dream. Hence, bipartisan support should
continue.

V. Regulation

A. The Rise of Federal Regulation

Government regulation consists of rules and

standards that control economic, social, and

263
 political activities.

In the United States the basis for regulation are found in

portions of the Constitution such as the commerce
clause. The first national independent agency
created to regulate an industry was the Interstate
Commerce Commission (1887). Since then, Congress
has basically gone on, since the New Deal with the
Supreme Court's blessing, to regulate numerous
activities.

Several major regulatory laws were passed during the

Progressive Era. Many more were created during the
New Deal. The third wave of regulatory innovation
took place during the 1960s and 1970s as part of the
Great Society. The most important of the new
agencies formed was the Environmental Protection
Agency (EPA).

B. Justifications for Regulation

Scholars have identified three broad types of

circumstances in which they find government
regulation most easily justified.

1. Natural Monopoly

In a situation known as a natural monopoly a

public service is best provided by a single
company. Regulation of such a company is a must
to prevent unnecessarily high prices.

2. Negative Externalities

The government may also regulate to prevent or

adjust for externalities, consequences of
activities that do not directly affect those
engaged in them (such as air pollution).

3. Protecting the Uninformed

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 Regulations are used to protect those who cannot
be expected to be well-informed, most notably
consumers. Consumers, for example, cannot know
all about pharmaceutical products. Hence the
need for an agency like the Food and Drug
Administration (FDA).

C. Politics of Regulation

When and how regulation takes place is a political

decision.

1. Congress

Sometimes regulations are created as a reaction

to a well-publicized incident or disaster.
Congress passes such regulations as a way of
telling the public it is doing something about
the incident. Of course, some people, no matter
how obvious the need for regulation, will
object.

To deflect such criticism, Congress assigns the

making of the regulations to someone in the
executive branch, engaging in what is known as
blame avoidance.

The language of the law assigning the regulatory

power to an agency may be vague due to the need
for flexibility, but also so that Congress can
seek to please everyone. In rare cases, Congress
will include a hammer--a harsh penalty--if
legislative goals are not met.

2. Agency Discretion

Although agencies often have discretion in

deciding how to execute their mandates, there
exists a zone of acceptance, a range within

265
 which Congress will accept that whatever an
angency decides is the correct interpretation of
the statutes.

3. Courts

The courts are often called upon to interpret

statutes, which, if the laws are vague, give
them wide discretion as to the statutes meaning.

D. Deregulation

Because regulations may suppress goods consumers

want and because regulating can be expensive,
Congress has introduced in many areas policies of
deregulation (the removal of government rules that
once governed an industry).

Perhaps the most celebrated deregulation occurred

within the airline industry. While this was viewed
primarily as a success, some regulations of airlines
will continue because the public will always expect
government to act in response to crises and
disasters.

Ideas for Lectures and Discussion

1. A Case of "Enough!"

In the section of this chapter devoted to regulation

the authors write that Congress has relied on the
commerce clause to justify its authority to pass
regulations. Sometimes regulations are created as a
reaction to a well-publicized incident or disaster.
Such was the situation after several incidents of gunman
firing on innocent children at school and kids caught
with guns at school.

The Lopez Case:

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 In 1990, Congress passed the Gun-Free School Zones Act.
This law made it illegal for any individual to possess a
firearm within 1,000 feet of a school. Clearly Congress
was reacting to incidents of guns at school and incidents
of violence in which adults fired on kids at school.

When a senior at a San Antonio, Texas-school was caught

with a gun in school, the authorities prosecuted, and he
was convicted of violating this law. On appeal, his
lawyers argued that Congress did not have the
constitutional authority to pass the law.

Constitutional Justification:
Where did Congress get the constitutional authority to
pass this law? Congress claimed that Article I, Section
8, clause 3 gave them the authority. The portion of that
clause pertinent to the case states Congress shall have
the power "to regulate commerce...among the several
states...."

Is It Commerce:
Does this appear to be a regulation of commerce among the
states? Obviously Congress thought so. The lawyers for
the government argued before the Supreme Court that it
was. They provided several arguments to defend their
position.

First, the government argued that "possession of a

firearm in a school zone may result in violent crime and
that violent crime can be expected to affect the
functioning of the national economy...."

This affect can occur in two ways. One, the costs of

crime are significant, and through the mechanism of
insurance, these costs are spread throughout the nation
(and, hence, among the states). Two, violent crime
reduces the willingness of individuals to engage in
interstate travel.

Second, the government argued that the "presence of guns

267
in schools poses a substantial threat to the educational
process by threatening the learning environment." This,
in turn, has an impact on the nation's economy since a
weakened education system will result in less productive
workers. A less productive worker results in a less
productive economy, and hence the nation as a whole
suffers. Congress, it was argued, has the authority to
try to prevent this.

Historical Precedents:
If these arguments seem like a stretch, they are
the kind of arguments that Congress had been offering
for decades to justify its authority to regulate. In the
1940s, Congress used this type of reasoning to justify
telling a farmer he could not plant about 10 acres of
wheat. It was also this reasoning that was used in
support of the 1964 Civil Rights Act prohibiting public
accommodations from discriminating on the basis of race.
Thus, it would only seem natural that Congress would have
the authority to step in and try to do something about
the growing problem of violence in public schools.

The Court Says, “Enough!”:

The Supreme Court struck down the law. In the opinion,
written by Justice Rehnquist, the Court surveyed the many
cases in which the Court had, since 1937, allowed
Congress to regulate just about everything in the name of
regulating commerce among the states. But the Court was
now saying it was time to apply the brakes.

Examining the provisions of the law and the facts of the

case, the Court stated that the law "has nothing to do
with 'commerce'." Concerning the arguments provided by
the government, the Court replied, "Under the theories
that the Government presents in support of [the law], it
is difficult to perceive any limitation on federal
power...."

What about all the earlier cases? The Court stated, "The
broad language in these opinions has suggested the

268
 possibility of additional expansion, but we decline here
to proceed any further."

2. Students often have preconceived ideas concerning

welfare. It is worth taking the time to emphasize that
the word "welfare" is loaded with preconceived notions.
In fact, for many students, welfare may mean any
government program giving money to individuals that they
don't think are deserving. For example, would students
classify student loans as welfare?

Welfare is the government giving money to poor people.

Welfare is not that easy to define. If welfare is any

government money going to individuals to assist their
welfare, then it is not just for poor people. Social
security is welfare. And, as pointed out in this
chapter, a person does not have to be poor to receive
social security. Likewise, people can be well-off and
receive unemployment compensation. Medicare is another
example of welfare that does not just go to the poor.
Welfare programs that are intended solely for the poor
are called means-tested programs. Medicaid and food
stamps would be examples of such programs.

Draw a vertical line in the center of the chalkboard.

Write "means-tested" on one side of the line. Ask
students to identify government programs mentioned in
this chapter. Ask them to identify those that are
"means-tested" and those that are not. Write these on
the chalkboard.

3. As this text goes to print, the verdict is still out on

the impact of the new welfare law. After signing it,
Clinton vowed to ask Congress to change it to soften the
impact on poor children.

Here is a portion of a recent newspaper article showing

how one state is reacting to the change. Read this to
the class (or duplicate it as a handout) and then use it

269
and the questions that follow for class discussion.

One State's Reaction to the New Welfare Law:

"Welfare recipients will see their monthly checks
decrease by 5 percent after the...[State] Commission
voted for cuts. The vote will affect those receiving
Temporary Assistance for Needy Families payments."

One commissioner voting for the cut explained, "For

50 years, we've thrown money at this problem and
accomplished very little."

One state representative pointed out that it was

significant that the commission was cutting benefits that
mostly go to children, while at the time it was
raising benefits for the elderly.

Another representative who had been in the grocery

business explained that he knew what a $10 or $15 cut
could mean to children needing basic necessities of life.

In this state a mother with two children was getting

$324 a month in 1993; this cut (following an earlier one
in 1994) will lower it to $292 a month.

Questions for Discussion:

A. Why do you think this state commission decided to cut

the welfare payment?
Obviously one reason stated by a commissioner was
that he was philosophically opposed to welfare.
Also he stated, he thought history had shown that
"throwing money" at the problem did not work.

Although not reprinted above, the article stated that

the commission's chairman thought the cut was
designed to force people off the welfare rolls. He
was quoted as saying, "I cannot in my heart find room
to starve them into submission."

270
 B. Why did the one representative think it was
significant that the commission was ordering the
cuts?

The representative compared the cut for children to

the continued funding of welfare for the elderly.
This was a major theme of this chapter, so it will be
interesting to see if your students pick up on this
and then if they can devise on their own a
political answer.

The answer was hinted at in the article, but was on

purpose replaced by ellipses (see the paragraph above
containing the significant comment) so that students
would have the opportunity to think on their own.

One theme of this text is how politicians (and the

courts) respond to public opinion and those who are
politically active. With that in mind, here is how
the article actually went:

One state representative pointed out that it was

significant that the commission was cutting
benefits that mostly go to children, who cannot
vote while at the time it was raising benefits
for the elderly, who can vote.

C. What was the state (or region of the United States)?

The state doing this was Oklahoma, a conservative

state.

List of Transparencies

Each transparency listed is followed by the Text Figure

(or Table) number, followed by the text page.

T38 Policy-Making Stages, 18.1, 581

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T39 U.S. Poverty Rates for Senior Citizens and Children,
1970-1994, 18.2, 582
T40 Project Cost of Social Insurance for Senior Citizens,
18.3, 586

T41 Federal Entitlement Expenditures by Beneficiary Age

Group, Per Capita, 1960-1995, 18.5, 591

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Chapter Nineteen
ECONOMIC POLICY

Overview

Presidential popularity is significantly influenced by

national economic conditions. The result is that presidents
give economic issues top priority. One independent agency
that assists in this regard is the Federal Reserve. Relying
on fiscal policy has declined.

Growth of the public debt has been accelerated by the

indexation of taxes and benefits. The end of indexation
marked a new era of Congress having to take blame for
economic problems. One result was increasing attention to
ways of reforming the tax system. The debate is often over
the progressivity of taxes and their visibility.

In spite of American's dislike for the tax system and

economic problems, when compared with Western European
countries, it does not appear that bad.

Learning Objectives

1. Explain how and why the American national economy was the
major reason for the defeat of President George Bush in
the 1992 presidential election.

2. Discuss the relationship between economic prosperity and

the political fortunes of presidents and their parties.

3. Differentiate between fiscal and monetary policy and

define such key terms as deficit, surplus,
Keynesianism, the CEA, monetarism, debt, and supply-side
economics.

4. Explain the organization and operation of the Federal

267
 Reserve system, how the FED can affect the national
economy through its various operations, and who, if
anyone, tightly controls FED operations.

5. Summarize the various approaches in dealing with the

deficit and define the following important related
terms - real income, bracket creep, and indexing.

6. Review the essential facts about the tax burden,

preferences, base, and progressivity.

7. Review the various types of suggested tax reforms, such

as the flat tax and consumption tax (VAT--valued added
tax).

8. Summarize how the U.S. economy rates in comparison with

other nations on such indices as job creation, general
prosperity, level of debt, deficits, tax burdens, and
income inequality.

Key Terms

budget monetarism
business cycle monetary policy
Council of Economic Keynesianism
Advisors (CEA) partisan interpretation
debt progressive tax
deficit recession
election-cycle regressive tax
interpretation sin tax
Federal Reserve System supply-side economics
fiscal policy surplus
flat tax tax base
gross domestic product tax preferences
inflation unemployment

Outline

268
 I. Economic Growth and the Business Cycle

Economies grow as a result of technological

innovations, investments in physical capital, and
investments in human capital.

Short-term fluctuations in the economy--recessions and

recovery--are referred to as the business cycle.

Governments try to offset the problems associated with

the business cycle: inflation and unemployment.

II. Economic Conditions and Political Fortunes

When economic times are hard, people tend to blame

those in charge; the popularity of the president drops
during recessions. Terrible economic times in American
history are associated with massive election losses for
the party of the president. Prosperity, however,
strengthens a president's position for reelection.

Carter found himself in the worst position when running

for reelection: Unemployment and inflation were both
simultaneously high (stagflation).

While it doesn't guarantee popularity, prosperity

generally strengthens a president's position.

Economic conditions can affect congressional elections,

too.

III. Fiscal Policy

Fiscal policy consists of government spending and

taxing decisions. If government expenditures exceed
revenues, government runs a deficit. If government
revenues exceed expenditures, government enjoys a
surplus.

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A. Use of the Budget Deficit

One important economist in the 1920s, John Maynard

Keynes (his economic philosophy is called
Keynesianism), argued that not all deficit spending was
bad. President Franklin Roosevelt was influenced by
Keynes' philosophy.

In 1946, Congress created the Council of Economic

Advisers (CEA) to advise the president.

B. Decline of Fiscal Policy

1. Divided Government

In order for fiscal policy to work as a

solution to economic problems, it must be
enacted rather quickly. The American system of
government was designed such that hasty action
is difficult. Add to this the frequent
situation in recent decades of divided
government, and quick action becomes more
difficult.

2. Monetarism

A school of economic thinking known as

monetarism undercut the Keynesian theoretical
claim that fiscal policy could fine-tune the
economy. The reasoning: if a government
borrows money, it soaks up some of the
country's savings and has less savings to
finance investment, economic growth slows.

3. Growing Budget Deficits

Fiscal policy might have been effective in the

1960s, but that was because the deficit was not
that large. The federal debt skyrocketed in
the 1980s, partially due to supply-side

270
 economics ("Reaganomics"). So much so that
aggressive fiscal policies have become
politically infeasible.

D. Internationalization

A school of economic thinking called rational

expectations developed in the 1970s that, when
successful, counteracted any effect the government
planned through fiscal policy.

Also, as economic activity became increasingly

international, the reactions of economic actors to
government policies were no longer limited to
reactions in their own countries. In other words,
investors can vote with their money, thus
imposing economic costs on the government that
adopts unfavorable policies.

IV. Monetary Policy: The Federal Reserve System

Today, monetary policy is the government's most

important tool for managing the economy. Basically,
monetary policy relies on raising or lowering interest
rates, which governments do by subtracting or adding
money to the economy. More money means lower interest
rates; less money means higher interest rates.

An advantage monetary policy has over fiscal policy is

that it can be altered quickly in response to changing
economic conditions.

Created in 1913, the FED is responsible for managing

the government's monetary policy. It acts on the
economy through the operations of its 12 regional
banks, each of which oversees member banks in its part
of the country.

The most important decisions affecting the economy on a

daily basis are made by the Fed's Open Market Committee

271
(consisting of the seven governors and 12 regional
bank presidents--only five of whom have a vote).

A. The Fed Chair

The person chairing the Fed is very powerful due to

the close ties to the president, direct access to
up-to-date economic information, and the power to
approve the appointment of the 12 presidents of
the Federal Reserve Banks.

B. Who Controls the Fed?

The Fed is relatively insulated from electoral

politics.

1. Congressional Influence

Congress created the Fed; all nominees must be

approved by the Senate, and the Fed must make
quarterly reports to the banking committees of
the House and the Senate.

Still, the Fed is insulated from congressional

control due to its ability to literally
create its own budget. It is also relatively
free of congressionally determined salary
schedules and personnel controls.
The control Congress does exercise over the Fed
is indirect: jawboning and public hearings.

If Congress does not exercise significant

control over the Fed, who does? There are
three distinct answers.

2. Banker Dominance

One answer is that banks control the Fed.

This answer relies on evidence that indicates

272
 the Fed is mainly concerned with low inflation
and preventing recession (the same concerns of
banks). The Fed tries to defend itself against
such claims by arguing it must take actions
that may appear to favor banks or else the
economy could be severely damaged.

3. Presidential Dominance

While the president clearly can influence the

Fed (he appoints its members and chairs), the
question is: how much influence does he have?

Two versions of presidential control

interpretation--the partisan and the election
cycle--have been proposed.

The partisan control explanation goes like

this. Republicans tend to favor tight monetary
policy, while Democrats tend to favor loose
monetary policy. The Fed strives to follow the
bias of whoever is in power. But, this
influence is too weak and indirect to call it
presidential control.

The election cycle interpretation goes like

this: Presidents deliberately manipulate the
economy. They tolerate slow growth early in
their terms and then rev up the economy as
the election approaches (so as to help
guarantee their reelection). The problem with
this interpretation is that the pattern it
relies on is only slightly confirmed by
historical fact.

4. An Independent Fed

Fed supporters say several factors guarantee

the independence of the Fed: 14-year terms for
board members; removal only by impeachment; a

273
 strong, independent staff, a chair that is
usually more knowledgeable about economic
policy than any presidential appointee, and
an independent Fed that is viewed by many as
a good thing.

V. Deficits and Surpluses

Since the early 1980s, the deficit has been a major

issue in American politics. Eliminating it requires
that taxes be raised or spending be reduced. Either
choice is unpopular. Americans want lower taxes, but
they don't want services cut. This inconsistency has
lead elected officials to search for blame-avoidance
techniques--strategies that deal with deficits while
avoiding any blame for the consequences.

VI. The "T" Word: Taxes

Taxes are a hot political issue since most Americans

think taxes are too high and the government spends the
money on frivolous programs.

A. The Tax Burden

Taxes (as a percentage of the Gross National

Product - GNP) scarcely increased between 1970
and 1990. While some people think Americans
are getting stingy with paying taxes that could
go to good causes, others think taxes are just too
high (especially with wages not increasing much).

In part because of the size of the budget surplus

(following economic growth in the 1990s), each
presidential candidate in the 2000 campaign
advocated some tax cuts.

B. The Tax Base

Economists argue that taxes are less intrusive if

274
 they tax all economic activity at the same rate.
If everything is taxed alike, then tax policy will
not distort the economy. But this is easier said
than done since good reasons can often be given for
not taxing some activities and groups pressure
Congress not to tax their favorite activities.
Lawmakers have responded with thousands of tax
preferences.

The government also sometimes imposes sin taxes,

taxes intended to discourage unwanted behavior.
Examples would be taxes on cigarettes and alcoholic
beverages.

C. Tax Progressivity

Taxes are said to be progressive if people with

higher income pay a higher tax rate (such as with
the income tax).

Taxes that require low-income people to pay a

higher rate are called regressive (such as the
payroll or social security tax).

Conservatives generally dislike progressive taxes.

Taxes vary so much in the United States that it is
difficult to characterize the tax structure as progressive
or regressive.

D. Tax Reform

One reform mentioned in recent years is the flat

tax. It would tax all income groups above a
certain minimum at the same rate (eliminating the
progressivity of the income tax). It is touted as
fairer and less complex.

A more radical proposal for tax reform is to change

the basis of taxation - say, a value-added tax (a
consumption tax). Liberals oppose the idea

275
 because it is not progressive; conservatives oppose
it because it is too easily hidden.

The debate over tax reform is fractious because

people want to use the tax system to achieve
different goals--goals that often conflict. One
thing seems certain--Americans don't like the
current tax system.

VII. The U.S. Economy in Comparative Perspective

In today's worldwide economy, the U.S. economy is

often subject to forces beyond the control of America's
politicians. Relative to other advanced democracies,
the United States is dealing reasonably well with its
economic challenges and difficulties.

A. Taxes

As of 1998, the tax burden in the United States was

among the lowest of 13 major industrialized
countries: about 34 percent of the GDP. (Although
other countries provide more services in exchange
for the money extract in taxes--like health care).

Why, then, are Americans so unhappy with their

taxes, and why did the presidential candidates in
2000 promise to cut them?

Part of the answer may be due to the fact that so

much of the tax money raised in the U.S. comes from
payroll taxes (nearly two-thirds of the tax money is
raised this way). In addition, Americans are
economic individualists who wish to keep the role
of government limited.

B. National Debt

Relative to the size of the economy, the public

276
 debt in the United States is moderate.
Italy's is twice as large as that of the United States.

C. Employment Opportunities

The United States has done a better job than most countries
of incorporating new workers into the economy. The
United States did a better job of absorbing the baby-boomers
into the economy in the 1980s than Western Europe.

While some say the jobs created in the United States were
low-skill, low paying McJobs, the evidence
suggests otherwise.

Compared to most other countries, the American

economy is less restricted by government policies
and regulations.

D. Inequality

Compared to other advanced democracies, income

inequality in the United States is higher. While some
criticize this situation there seems to be no
popular demand for government to do anything about
it, and candidates advocating such a governmental
role usually lose.

Ideas for Lectures and Discussion

1. One thing not given any attention in this chapter is the

role the courts play in the American economic system.
The historical rise and fall of the doctrine of
substantive due process can be an interesting way of
conveying this to the students. Some U.S. Supreme Court
justices believed that the framers meant for the
Constitution to endorse laissez faire economics. Others

277
disagreed. Below is part of the story.

Substantive Due Process:

The case that stands at the apex of the Court's use of
this concept is Lochner v. New York. First, what is
substantive due process? Due process is a vague
clause that simply put means fairness or justice.
The clause appears twice in the Constitution: the Fifth
and 14th Amendments. Taken literally, the clause
would mean that the procedures used by the government for
passing laws or deciding court cases (at both state and
federal levels) must be fair, or put another way, not
arbitrary. This is what a person is due.

Legislative Deference:
For a law to be upheld, the courts would want to know if
the proper procedures established for passing laws were
used. Likewise, for a person to be fairly tried for
breaking a law, established procedures must be followed.
If they were, any challenge to the law (or court
procedure) will be denied. In other words, the courts
would defer to the wisdom of the legislature rather than
questioning the wisdom of the law (what is called

judicial self-restraint). This was the interpretation

adopted by the Supreme Court in the Slaughter-House Cases
(1873).

While most would agree with this way of interpreting the

due process clause (procedural due process), it is also
possible to argue that there is another form of due
process protected by the Constitution: substantive due
process. Under this legal concept, a person has rights
that the government cannot infringe upon even if proper
procedures are followed.

A New Standard:
In an 1877 case (Munn v. Illinois), the Supreme Court
hinted that it might strike down certain kinds of state
laws, even if the Constitution did not explicitly forbid

278
what the laws were regulating. Prior to this reasoning
the courts had been quite differential to laws. All that
mattered to the court was whether or not the law was
passed following the procedures required by the state
constitution (or the U.S. Constitution in the case of
laws passed by Congress). The Court seemed to be saying
that there are some things that state legislatures (or
Congress) can't forbid in laws even if set procedures for
passing laws are followed. The courts, in other words,
would not hesitate in certain instances to question the
wisdom of the legislators in passing a law (what is
called judicial activism).

Rise of Substantive Due Process:

After some early hints that it would rely on
substantive due process, the Supreme Court finally
adopted it as a formal doctrine by 1900. The Court's
rule was that it would not hesitate to declare a law
unconstitutional if it did not bear a reasonable relation
to a legitimate end. The key here is legitimate end.
This was for the Court to decide, not state legislatures
(or Congress). So even if a law was passed following
all the proper procedures, it could still be
unconstitutional if the Court deemed its effect was
illegitimate.

Relying on this new rule, the U.S. Supreme Court

proceeded to strike down various state laws regulating
business or economic matters. The apex of this approach
was the Court's decision in Lochner v. New York (1905).

Lochner v. New York (1905):

New York passed a law limiting the number of hours
employers could make employees work in bakeries. No
employer could make a person work more than 10 hours a
day or 60 hours a week. Why did New York pass such a
law? Ostensibly, the reason was to protect the health of
employees. While work in a bakery may not appear to be
all that dangerous, there are real risks to breathing

279
confectionery sugar for long hours. The danger of white
lung was real. Also, it would be very possible for an
employer to refuse to hire anyone not willing to work long
hours (in a way forcing a person to work long hours or
not get the job).

The operator of a New York bakery, Joseph Lochner, was

found to be in violation of the law, and after being
fined he went to court. After losing on appeal, he
appealed his case to the U.S. Supreme Court.

The Supreme Court struck down the New York law. Below is
a quote from the case which clearly demonstrates its
reliance on substantive due process:

In every case that comes before this court,

therefore, where legislation of this character is
concerned and where the protection of the Federal
Constitution is sought, the question necessarily
arises: Is this a fair, reasonable and appropriate
exercise of the police power of the State, or is it
an unreasonable, unnecessary and arbitrary
interference with the right of the individual to his
personal liberty or to enter into those contracts in
relation to labor which may seem to him appropriate
or necessary for the support of himself and his
family?

In another portion of their decision, the Court stated,

"We do not believe in the soundness of the views which
uphold this law.

Conservatives as Judicial Activists:

The ramifications of this (and the earlier cases in which
the Court had started ruling in this fashion) were
tremendous. It meant that in many instances business
interests could not be regulated by the government.
Thus, conservative interests were enamored with this
approach. Putting this kind of language in the context
of today makes for some interesting contrasts. Today,

280
for example, when judges strike down a law for violating
a right, conservatives often complain that judges are
merely relying on their personal opinions to strike
down a law passed by the people's representatives. In
the early portion of the century, however, it was the
conservatives that were applauding the court's reliance
on judicial activism.

Some of the justices in this case did have a problem with

this decision. Justices Harlan, in his dissent, stated:

"...the rule is universal that a legislative

enactment...is never to be disregarded or held
invalid unless it be, beyond question, plainly and
palpably in excess of legislative power....If there
be doubt as to the validity of the statute, that
doubt must therefore be resolved in favor of its
validity, and the courts must keep their hands off,
leaving the legislature to meet the responsibility
for unwise legislation. If the end which the
legislature seeks to accomplish be one to which its
power extends, and if the means employed to that end,
although not the wisest or best, are yet not plainly
and palpably unauthorized by law, then the court
cannot interfere. In other words, when the validity
of a statute is questioned, the burden of proof...is
upon those who assert it to be unconstitutional...."

This is a clear statement of the notion of judicial

self-restraint. All that concerned Justice Harlan (and
the two other Justices that joined in his dissent) was if
the legislature had a reasonable justification for
passing the law. He thought they did: protection of the
health of those working in bakeries.

Holmes' Dissent:
The most eloquent statement in the case came in Justice
Oliver Holmes' dissent. Holmes objected to the Court reading
its own economic version of what constituted valid

281
regulations into the Constitution rather than, like
Harlan, merely relying on the wisdom of the legislature.
In what has become a frequently quoted dissent, Holmes
wrote:

The Fourteenth Amendment [due process clause] does

not enact Mr. Herbert Spencer's Social Statics....A
constitution is not intended to embody a particular
economic theory, whether of paternalism and the
organic relation of the citizen to the State or of
laissez-faire. It is made for people of
fundamentally differing views, and the accident of
our finding certain opinions natural and familiar or
novel and even shocking ought not to conclude our
judgment upon the question whether statutes embodying
them conflict with the Constitution of the United
States.

[Spencer was an Englishman who was a philosopher,

sociologist, and biologist. His book, Social Statics,
sold 400,000 copies from 1864-1903. It was Spencer who
coined the phrase "survival of the fittest." He applied
evolutionary theory to social development. He believed
that nature winnowed out the weak and shiftless, which
was a positive thing in that this strengthened the human
species. Thus, laws (such as this one in New York) that
tried to protect the weak were perpetuating the existence
of an inferior stock. This notion came to be called
Social Darwanism.]

Liberty of Contract:
Was there any legitimate argument for the Court ruling as
it did in Lochner, or were the justices merely letting
their conservative leanings get the better of them? The
argument could go like this: I have a "right to
contract."

This right may not be specifically mentioned in the

Constitution, but nevertheless it is a right that each
individual has.It is a natural right. If I want to

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take a job that requires me to work more than 10 hours a
day or 60 hours a week, that is my business. It is my
right to accept or reject such a job. The government has
no right to tell me I can't form a contract with an
employer to work in excess of these hours.

Of course, another way of looking at this situation

would be that it allowed employers (business interests)
to exploit workers: Work this amount of time, under
these conditions or you are fired. As long as economic
conditions, were such that there were people that were
desperate for work, the employer held the upper hand.

The Fall of Substantive Due Process:

Eventually, the Supreme Court repudiated substantive due
process. The case was West Coast Hotel v. Parrish
(1937).

In sustaining a minimum wage law for women, the Court was

refusing to question the wisdom of the law and deferring
to the legislature. The statement that is usually
referred to as the approach the Court would now take
appeared in U.S. v. Carolene Products Co. (1938):
"Regulatory legislation affecting ordinary commercial
transactions is not to be pronounced unconstitutional
unless in the light of the facts made known or generally
assumed it is of such a character as to preclude the
assumption that it rests upon some rational basis within
the knowledge and experience of the legislators."

Procedural Due Process:

Thus, the Court was returning to the approach that had
guided it throughout most of the nineteenth century:
procedural due process (and judicial self-restraint).
However, in a footnote to the case, the Court left the
door open to substantive due process in certain areas:
"There may be narrower scope for operation of the
presumption of constitutionality when legislation appears
on its face to be within a specific prohibition of the

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 Constitution, such as those of the first ten amendments,
which are deemed equally specific when held to be
embraced within the Fourteenth."

So adamant is the Court now in refusing to engage in

substantive due process (at least in the area of economic
regulations) that when the state legislature does not
give a reason for a regulation, the Court will think of
one for the legislature (see Williamson vs. Lee Optical
CO., 1955).

List of Transparencies

Each transparency listed is followed by the Text Figure

(or Table) number, followed by the text page.

T42 How Americans Feel About the Economy Is a Good Predictor

of What They Think About the President, 19.1, 616

T43 The Federal Deficit in Modern Times, 19.2, 622

T44 The Structure of the Federal Reserve System, 19.3, 624

T45 Debt as a Percentage of GDP, unnumbered, 639

T46 Tax Burden in Democracies, 19.6, 640

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Chapter Twenty

FOREIGN AND DEFENSE POLICY

Overview

Voters have come to focus on the president to make and

conduct foreign policy. In nearly every case, when
presidents introduce troops abroad, their popularity goes up.
In 1973, Congress sought to reassert its role in the use of
American troops by passing the War Powers Resolution.

The three agencies shaping U.S. foreign policy, the

Department of State, Department of Defense, and the Central
Intelligence Agency, together with the head of the Joint
Chiefs of Staff, all sit on the National Security Council,
which is managed by a National Security Adviser responsible
to the president for overall foreign policy coordination.

Idealists tend to advocate policies that would help

spread democracy around the globe. Realists tend to place
the interests of the United States. first.

Learning Objectives

1. Discuss how voters, interest groups, and Congress can all

hold presidents accountable regarding their foreign
policy decisions.

2. Delineate the respective constitutional powers accorded

to both the president and Congress vis-a-vis the broad
issue of war powers.

3. Describe the respective roles and duties of key foreign

policy institutions, including the Department of Defense
and State, the CIA, and the National Security Council.

4. Explain the key components of the American foreign policy

tradition, including the impact of democratization and
isolationism.

5. Define and explain the implications of idealism and

realism in contemporary American Foreign Policy.

6. Distinguish between unilateralism and multilateralism.

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7. Review both the content and impact of current American
defense and foreign policies toward the regions of
Eastern Europe and the former Soviet Union.

8. Explain how and why foreign-policy issues can sometimes

affect election results in the United States.

Key Terms

ambassador National Security

Bay of Pigs Council (NSC)
Central Intelligence "rally 'round the flag"
Agency (CIA) effect
Cold War realists
containment secretary of defense
Department of Defense secretary of state
embassy Tonkin Gulf Resolution
executive agreement treaties
foreign policy two-residency theory
foreign service United Nations (U.N.)
idealist U.S. v. Curtiss-Wright
Iran-Contra scandal War Powers Resolution
iron curtain Youngstown Sheet and Tube
isolationism Co. v. Sawyer
Joint Chiefs of Staff Monroe Doctrine
League of Nations

Outline

I. Elections, Presidents, and Foreign Policy

Foreign policy is the conduct of relations among nation

states. This involves issues of war, peace, and economics
as well as more mundane matters. Political scientist Aaron
Wildavsky developed the two-presidency theory which
states that presidents have more power in managing
foreign affairs than they do domestic affairs.

A. Need for Fast Action

Foreign-policy questions often require fast action.

B. Voters' Focus on Presidents

The public looks to the president in foreign

affairs and tends to rally around him when he acts.

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 Protracted military excursions, however, can result
in public disapproval.

In recent years, the public is less inclined to

"rally 'round the president," and expect results
within a year.

As presidents have come to be exposed to increasing

media coverage, the number of crises have increased
and grace periods have shortened. Voters are less
reluctant to "rally 'round the flag."

C. Limited Role of Interest Groups

With a few exceptions (which prove the rule), most

nationality groups are not large enough or
concentrated enough or sufficiently attentive to
events overseas to have a decisive effect on U.S.
foreign policy.

D. Congressional Role

Between World War II and the end of the Vietnam

War, Congress basically deferred to the president
in the making of foreign policy. Congress, then,
reasserted itself in this area. The victory in the
Persian Gulf has helped boost the executive branch.

II. Foreign Policy Responsibilities of President and

Congress

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A. War Power

Under the Constitution, only Congress can declare

war, but the president is the commander in chief.

Prior to the Civil War, presidents seldom acted on

their own on military matters. President Lincoln
was the first to give an extended interpretation of
the role of commander in chief. Since the early
years of the twentieth century, presidents have felt
free to initiate military action even in the
absence of congressional approval.

The Supreme Court has expressed an expansive view

of presidential power in foreign policy (the
Curtiss-Wright case) but did place limits on
presidents in the Youngstown case.

B. War Powers Resolution

In a response to the Vietnam War, Congress passed

the War Powers Resolution in 1973 to provide for
the collective action in the introduction of
American troops into hostilities in other countries
(or where hostilities were eminent).

If a president introduces troops into hostilities

(or where hostilities are eminent) in another
country and Congress does nothing, the troops must
return in 60 days (with a possible 30- day
extension).

Congress has never been willing to challenge

presidential refusal to invoke the War Powers
Resolution. This is especially true during the post-9/11
tragedy. Under the congressionally passed U.S. Patriot Act,
the president’s foreign- policy power has been increased,
thus diluting the War Powers Resolution

C. Treaty Power

A president can negotiate a treaty but before he

can ratify it, the Senate must gives its consent (a
tw-thirds vote). The ability of a small number of
Senators to block consent has induced presidents to
negotiate executive agreements, legal contracts
with foreign countries that require only a
presidential signature.

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 Presidents relied on executive agreements, which
are not mentioned in the Constitution, more
after the Supreme Court upheld them in 1937.

III. Institutions Responsible for Foreign Policy

The country's greatest foreign-policy challenge came

with the beginning of the Cold War, a 43-year
period (1946-1989) during which the United States and
the Soviet Union threatened one another with mutual
destruction by nuclear warfare.

A. The Cold War

The Cold War followed the formal end of WWII and

was exemplified by such things as the "iron
curtain." It began at a time when the prestige of
the executive branch was high. The United States
decided on a policy of containment.

A. State Department

The Secretary of State, who heads the State

Department, is officially the president's chief
foreign-policy adviser.

Ambassadors, who report to the Secretary, are

responsible for the management of major U.S.
embassies aboard, which house diplomatic
delegations in the capital cities of foreign
countries. Since the 1920s, these foreign officers
have been organized into a foreign service.

B. Defense Department

The 1947 National Security Act combined the

departments of Army and Navy into a single
Department of Defense (along with the Air Force).
All of these are headed by a secretary and each
reports to the Secretary of Defense, the
president's chief civilian adviser on defense
matters.

To achieve better coordination of the various

military branches, Congress created a Joint Chiefs
of Staff in 1947.

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 It took decades, but eventually a unified command
structure was created in each of the major
operating theaters of the world (as witnessed in
the success of the Persian Gulf War).

Some today question the military's reaction to

changing times. The problem is furthered by the
fact that the overall military budget declined
significantly in the 1990s.

C. Central Intelligence Agency

Created in 1947, the CIA has the primary

responsibility for gathering and analyzing
information about the political and military
activities of other nations.

It has the authority to conduct clandestine

operations (such as the Bay of Pigs), which has
been the subject of much controversy. It has
become one of the pillars of the foreign policy
establishment. Its main responsibility today is to
identify and squelch potential terrorist
operations.

D. National Security Council

Created in 1947, the National Security Council is

responsible for the coordination of U.S. foreign
policy. It is headed by the National Security
Adviser who, because he has more access to the
president than any member of the foreign-policy
team, can wield great influence.

The office of the NSA became controversial during

the Iran-Contra scandal.

IV. Ideals and Interests in American Foreign Policy

In making foreign policy the United States must juggle ideals

and practical interests.

A. The Democratic Ideal

The United States, more than most nations, has

expressed its national interest in a language that
identifies its cause with that of people throughout

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 the world.

Its idealism is rooted in its revolutionary,

anticolonial heritage. The Monroe Doctrine is an
early example of U.S. identification of its self-
interests with worldwide aspirations. The doctrine
of manifest destiny, Woodrow Wilson's
characterization of World War I, and Franklin
Roosevelt's characterization of World War II are
other examples.

B. National Interests

One of America's oldest foreign-policy positions,

isolationism, is grounded in self-interest. George
Washington urged a kind of isolationism in his
farewell address, President Wilson initially
advocated it prior to World War I, and FDR did the
same prior to World War II.

C. Latin America

America's foreign policy towards Latin American has

been influenced more by the practical interests
than by ideals. This can be seen in the Mexican War
and the Spanish American War. The United States
has also repeatedly used military force to impose its
will on weaker countries in the Caribbean and Latin America.

V. Contemporary Foreign Policy Issues

Idealists say that U.S. foreign policy should be guided

primarily by democratic principles. Realists say that
U.S. foreign policy best protects democracy when it
guards it own economic and military strengths.

Idealists are more likely to associate themselves with

the Democratic Party; Republicans tend to be realists.
Idealists are likely to be found in the State
Department; realists are more likely to be found in the
Defense Department.

A. Role of International Organizations

The United Nations was created at the end of World

War II to promote world peace and foster economic
and social development. Idealists think the United

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 States should work within the UN when conducting its
foreign policy. Realists don't.

B. Regional Conflicts

Idealists think the United States should intervene in

countries like Bosnia to preserve the peace.

Realists think the United States should only intervene

unless its interests are directly at stake.

C. Russia, China, and Human Rights

Idealists say that the United States must use its economic
and military muscle to promote human rights
throughout the world. Realists recommend that the
United States exercise caution before supplementing
diplomatic efforts to promote human rights with
economic or military pressure.

VI. The Politics of World Trade: New Alliances?

When the Cold War began, U.S. foreign-policy makers

were concerned with economic as well as political and
military questions. But in the 1990s when the Cold
War had come to an end, trade became a much more
publicized and contentious issue (beginning with the
battle over NAFTA – North American Free Trade
Agreement). The debate over world trade shows
signs of creating new political coalitions and of
involving more interest groups and members of the
public than a typical foreign policy issue would.

Ideas for Lectures and Discussion

1. Problems with the War Powers Resolution

The War Powers Resolution was passed over Nixon's veto in

1973. Its purpose, as stated in the law, was to provide
for the collective judgment (between the Congress and
the president) in the introduction of U.S. troops into
hostilities in another part of the world (or where
hostilities were imminent). As the authors point out,
they see the law as ineffective. Below are some of the
"problems" with the law.

A. Consultation

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 (1) What is consultation? The law does not define
it. The evening before American troops invaded
Grenada in 1983, President Reagan told some
members of Congress about the planned invasion.
This amounted to an announcement rather than
consultation.

During the hearings, authors of the law

explicitly stated that consultation should not be
considered merely an announcement. Yet without
so stipulating in the law, presidents have been
able to announce instead of actively pursuing a
genuine give and take.

(2) The law stipulates that whenever possible the

president is to consult with Congress. This, of
course, gives presidents an excuse for not
consulting with Congress; they can always claim
it was not possible.

(3) Consult Whom?

The law stipulates that the president is to

consult with Congress, but it does not seem
practical to assume that he must consult with all
535 members of Congress. This problem has
basically been worked out in practice; the
president typically consults (when he deems it
possible to do so) with the Speaker of the
House, the House majority and minority leaders,
and the majority and minority leaders in the
Senate. Sometimes the chairs of pertinent
committees are included.

B. Report

If the president, after consulting with Congress,

introduces the troops into hostilities (or where
hostilities are imminent), he must within 48 hours
give Congress a written report.

Most presidents, when they have followed the law and

issued a report, have used language that basically
tells Congress that they were not legally bound to give
the report, but were doing so out of goodwill.

President Ford sent a letter to Congress explaining

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 his actions in the rescue of the Mayaguez. The
letter arrived after the rescue. He explained that
he was sending the letter in good faith, which was
his way of saying he did not feel legally bound to do
so.

When Carter ordered the secret mission to obtain the

release of the embassy hostages being held by
Iranians in 1980, he sent his report out of courtesy
to Congress.

Reagan's euphemistically referred to the report

requirement when explaining his actions in Grenada
and Lebanon as consistent with the WPR.

C. The 60-Day Clock

Perhaps nothing is more controversial about the WPR

than the 60-day limit (with a possible 30-day
extension) for the troops to remain without
Congressional approval.

In passing this part of the law, Congress acted

rather cleverly. Knowing it would be hard to go
against a president that had ordered American troops
into harms way (see the discussion in the Chapter
about rallying around the flag), Congress wrote the
law so that by doing nothing, they would be doing
something.

If Congress does nothing (which is likely under the

circumstances, if Congress disagrees with the
president), then the troops must be returned to the
U.S. within 60 days (with a possible 30-day extension
if deemed necessary by the president for the safe
removal of the troops). The problem is that this
provision is covered in a portion of the law that
discussed three types of troop introduction, with the
clock (60-day limit) applying to only one of those
instances. Yet presidents are not required by the
law to stipulate in their report to Congress which of
the three types they are using.

Thus, Reagan introduced troops in Lebanon in 1982

where they remained for over a year without any
approval by Congress. This is because Reagan refused
to specify which portion of the law he was relying on
when introducing them. When Congress complained

290
 about the "clock" running out, Reagan would reply
that if Congress thought he had introduced the troops
under the provision requiring a 60-day limit they
should so vote. Of course, this is exactly what
Congress can't bring themselves to do (and why they
initially wrote the limit to apply by merely doing
nothing).

This is a major problem with the law for those

seeking to prevent the president from skirting this portion of
the law. It could be remedied by amending the law to
require a president to stipulate which type of
introduction he or she intends or by applying the 60-day
limit to all types of introductions.

2. On the chalkboard, print “Congress,” “President,” and “Courts”

for three column headings and use class discussion to
list the foreign policy powers of each. (The numbers
before each reference stands for Article, Section, and
clause of the Constitution.)

Congress: I, 8, 1 - provide for the common defense

I, 8, 3 - regulate commerce with foreign
nations
I, 8, 10 - punish offenses against the law of
nations
I, 8, 12 – provide appropriate funds for raising and
supporting the army
I, 8, 13 - to provide and maintain a navy
I, 8, 14 - regulate land and naval forces
I, 8, 15 - call forth the militia to repel
invasions
Congress: I, 8, 16 - organize and arm militia
I, 8, 17 - provide for forts, magazines,
arsenals, and dock-yards
I, 9, 2 - suspend habeas corpus
I, 10, 3 - give states permission to enter into a
compact with another nation and
keep ships of war
II, 2, 2 - Senate consent needed for treaties
and appointment of ambassadors and
consuls

President: II, 2, 1 – President is commander-in-chief

II, 2, 2 - make treaties and appoint
ambassadors and consuls
II, 3 - receive ambassadors and other

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 public ministers

Courts: III, 2, 1 - decide cases involving ambassadors,

other public ministers, and consuls
III, 2, 2 - Supreme Court has original
jurisdiction for parties mentioned
in III, 2, 1

3. It is a fact that since World War II, the president has

been the primary actor in the exercise of war powers.
Was this what the framers intended, and what explains
this trend?

The Framers and War Powers:

Throughout the summer of 1787 the delegates included
wording in the Constitution to the effect that Congress
would have the power to make war. Then on August 17,
when that phrase came before the delegates again, Madison
and Gerry moved to insert declare, striking out “make”
war. They did this so the president would have the
power to repel sudden attacks.

The framers thought Congress would be the primary agent

in war powers. The president would only be able to act
if Congress committed the nation to war, the one
exception being if the country were under surprise attack
(in which case the president could make war).

If this is the case, what explains the dominant role

played by presidents in war powers today?

Factors Explaining Presidential Dominance:

Information
First, there is the matter of information. Information
is power and during much of American history,
particularly the twentieth century, presidents have had more
information than Congress. Since FDR and the invention
of the modern presidency, presidents have the State
Department, Defense Department, National Security
Council, and the Central Intelligence Agency to provide
them with information.

The result has been that when presidents describe what is

going on in the world, Congress typically has little
information to challenge their assertions. It was two
years after Lyndon Johnson said the North Vietnamese had
fired a torpedo on the U.S.S. Maddox that Congress
learned an overeager sonar man and freak weather effects

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probably were mistaken for a torpedo. Of course,
Congress had already given Johnson a blank check to act
in the area in the form of the Gulf of Tonkin Resolution.

Interest Groups
There are not nearly as many interest groups in the area
of foreign policy as there are domestic policy. This
gives presidents more room to maneuver. At the same time,
it gives Congress less reason to oppose the president.

Low Public Awareness

Americans are typically uniformed about political issues.
This is especially true about foreign policy issues.
Most Americans would not know where Yemen is, let alone
what the U.S. policy is toward the country. This also
gives presidents room to maneuver. Likewise, members of
Congress can exercise the role of trustee on these
issues since the public is not that concerned. Knowing
this, presidents can place a lot of pressure on Congress
to vote the way the administration wants. The truth of
this is borne out in the success rate of presidential
foreign-policy initiatives, which is about double that of
domestic-policy initiatives.

Rally 'round the Flag

Finally, presidents benefit from the "rally 'round the
flag" syndrome. When presidents take action
internationally, they are acting for the nation. The
public typically responds by supporting the president.
Although the support can waver, presidents know that the
initial reaction will be public support. This, of
course, gives them an edge with Congress.

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List of Transparencies

Each transparency listed is followed by the Text Figure

(or Table) number, followed by the text page.

T47 "Rally 'Round the Flag" Effects, 20.2, 651

T48 Spread of Communism After World War II, 20.6, 658

T49 The Foreign Policy Institutions, 20.7, 659

T50 Defense Expenditures as a Percentage of GDP, 1945-1996,

20.8, 663

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