- Количество слайдов: 194
AP REVIEW UNITS I - VI
UNIT 1 CONSTITUTIONAL UNDERPINNINGS 5 -15%
How is Political Power Distributed? Elite politics view: minority groups dominate policy making 1. Marxist (Marx): government is influenced by economic elites; in the U. S. capitalists dominate the economy and therefore government 2. Power Elite (C. Wright Mills): coalition of corporations, military, and government dominate (Eisenhower’s “military industrial complex”) 3. Bureaucratic (Weber): government power is in the hands of a small group of bureaucrats who translate law into policy 4. Pluralist: no single elite dominates politics; resources are too widely spread out; too many institutions – Many groups compete with each other for control over policy – Policy, then, is the outcome of political haggling, compromise, and shifting alliances among groups • Hyperpluralism: “pluralism gone sour” there are so many groups that have so much power, that government is weakened and unable to act
Articles of Confederation Government 1. “firm league of friendship” 2. Deliberately weak central government: • No power to tax • No chief executive • No national judiciary • No power to regulate interstate or foreign commerce • No national currency • Required unanimity to amend Shay’s Rebellion, 1786 – Reflected the need for a stronger national government
Areas of Agreement: • Scrap the Articles of Confederation • Establish a republican government • Devise a government with a balance of power, but a stronger central government than under the Articles • Suffrage for property owners only • Protect property rights: main purpose of government
Areas of Disagreement. Compromises Representation among the states • Large states favored representation based on population (Virginia Plan) • Small states favored equal representation (New Jersey Plan) • Connecticut (Great) Compromise: a bicameral legislature with a popularly elected House (based upon population) and a Senate (equal representation) elected by state legislatures
Checks and balances: • Each branch subject to constitutional checks by the other branches • Examples: veto, veto override, appointment and confirmation, treaty-making and ratification, defense funding and Commander-in. Chief • Political independence within each branch: no branch is dependent upon the other two for election (exception-federal judges) • Staggering of terms within each branch: majority of voters can gain control over one part of gov at one time, e. g. midterm Congressional elections can serve as a check on executive Federalism: constitutional division of power between the national government and state governments. Both get their power from, and are subordinate to, the Constitution.
Marbury vs. Madison, 1803 Point 1: Constitution is the Judicial Review supreme law of the land n 1. The power to determine Constitutionality of an act of government n n 2. 3. Point 2: all legislative acts and acts of government are inferior to the Constitution and cannot come into conflict with it Point 3: judges are sworn to enforce provisions of the Constitution Marshall claims for the Supreme Court the power to declare acts of Congress unconstitutional and thereby establishes the power of judicial review Effects: citizens can challenge constitutionality of laws in court by initiating lawsuits (Gideon v. Wainwright, 1963). Litigation has become an important way of making public policy
Federalist 51 Auxiliary precautions against tyranny-dividing government into separate branches each with the power to check the power of the other The system of federalism provides a secondary level of protection by dividing the government into 2 levels, each that can check the other In a large & diverse country like the US , the competing factions can help prevent one special interest from dominating gov and prevent tyranny of the majority (pluralism)
Constitutional Reform 5 basic ways to informally amend the Constitution: 1. Basic Legislation – Congress, through the 4. Party Practices passage of laws, has added details to the skeletal – Not mentioned in the structure of the Constitution (Necessary and Proper – Nomination of Clause) presidential – Federal courts, presidential candidates… succession… 5. Custom/Tradition 2. Executive Action: – Presidential cabinet, – Executive agreements, use of war powers… legislative veto, senatorial courtesy… 3. Court Decisions: – Marbury v. Madison, Brown v. Board, Texas v. Johnson…
Formal Amendment I. Formal Amendment Process 4 Methods (2 proposals/2 ratification) • Constitution can be Proposal: changed either formally or 1. 2/3 vote from both houses of informally Congress (all done this way). • System reflects federalism No presidential veto possible. 2. Constitutional convention called by Congress at the request of 2/3 of states – Never used: fear of “runaway” convention
Ratification ( 2 methods. Congress decides which to use) 1. ¾ of state legislatures approve – All but 1 done this way 2. Ratifying conventions in ¾ of the states ü Time limits for ratification: 7 years
Defined: Ch. 3: Federalism • Constitutional division of power between • the national and state governments, both • get their power from the Constitution and are subordinate to it. • Reasons for: • Allows unity, but not uniformity • differences among states • More suitable for geographically large nation • More suitable for heterogeneous people Allows national gov to focus on national affairs Frees states from excessive intrusion on state/local matters (exc: mandates) Encourages experimentation (legalized gambling, medical marijuana, etc. ) Keeps gov closer to people-multiple points of access
Structure of Federalism I. National Powers (3 types of delegated powers): 1. Expressed (enumerated): actually stated in the Constitution 2. Implied: not stated, but implicitly suggested – Necessary and Proper Clause (Elastic Clause) 3. Inherent: powers held by the national government by virtue of its sovereignty II. State Powers (reserved): 1. 10 th A. states that any powers not granted to the national government are reserved to the states 2. Examples: establishing voting requirements, running elections, licensing professionals, establishing public schools
III. National Supremacy A. Supremacy Clause: Set up to avoid conflicts b/w State and Federal laws n “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land. …and the Judges in every State shall be bound thereby, anything in the Constitution or Laws of any state to the Contrary notwithstanding. ” – Article VI, Section 2 IV. Obligations of state governments 1. 2. 3. Full faith and credit clause: each state must honor the public acts, records, and legal proceedings of other states (birth certificates, marriages…) Privileges and immunities clause: each state must grant to citizens of other states the same rights and privileges that they grant their own citizens Extradition: governors must return suspects to states in which they allegedly committed their crimes
Mc. Culloch v. Maryland, 1819 1. 2. 3. Need for a more flexible interpretation of the Constitution so that it would endure Bank was “necessary and proper” upheld implied powers Power to tax involved power to destroy, thus states could not tax national gov, establishing national supremacy
Sources National Strength • • • Elastic Clause War powers Commerce Clause Power to tax and spend Imposition of federal mandates (some unfunded) on states • Preemption of state laws by fed courts if laws conflict with Const or fed laws State Sovereignty • Anything that is not prohibited by the Constitution or preempted by federal policy • Police power • State Constitutions allow for greater participatory democracy: initiatives, referendums, recall
Historical Developments 1. Dual Federalism [Up to 1940 s]: – 2. State and national gov each remained supreme within their own spheres Cooperative Federalism (“marble cake” federalism) [Since 1940 s]: – Mixing of responsibilities between state and national 3. New Federalism (Nixon) – – – Shifting some authority back to states (devolution) Nixon, Reagan, Bush I, II, Republicans 1995: U. S. v. Lopez
Grant Types: A. Categorical B. Block • For specific programs (roads, airports, housing, bilingual ed, etc. ) • Fed agrees to pay a portion of the costs, states pay the rest (also called formula grants e. g. 80 -20) • States don’t have to accept, but if they do, they must comply with fed standards • Granted to support a collection of general programs (urban development, transportation, etc. ) • Allows for more state leeway in spending the money • Associated with devolution of power back to states (104 th/105 th Republican Congress)
Politics of Federal Grants Democrats favor greater funding, but with more “strings” associated with categorical grants Republicans favor less funding, and with fewer “strings” associated with block grants – Exception: NCLB 2002, Republican support with lots of strings Welfare Reform Act of 1996 • AFDC changed to TANF • No more federal guarantee of welfare checks; ended entitlement status • Welfare block grants replaced welfare categorical grants • Even as a block grant, there were federal strings: – No fed funds to recipients who have not worked within 2 years – No fed funds to recipients who have received fed money more than 5 years – States must spend at least 75% of what they had previously spent on welfare
Federal Aid & Control: Mandates: a federal order imposed upon states Purposes: to meet a goal of the federal government Most concern civil rights and environmental protection Examples: 1. Americans with Disabilities Act 2. School de-segregation 3. Various environmental acts, e. g. Clean Air Act, Clean Water Act 4. IDEA Impact upon the states: 1. Financial burden, esp with unfunded mandates – ADA imposed large costs on states to make “reasonable accommodations” for disabled 2. State complaints about fed heavyhandedness – Clean Air Act 1990: if states do not have own plan and payment fed will impose their own 3. State complaints about fed blackmail – Fed can withhold fed funds in other programs
UNIT 2 POLITICAL BELIEFS AND BEHAVIORS 10 -20%
Political Culture: The widely shared beliefs, values and norms that citizens share about government. • Characteristics 1. Liberty 2. Equality • Of opportunity more than equality of result • Political equality more than economic equality 3. Democracy 4. Civic Duty 5. Individual Responsibility
Mistrust of government • Distrust of Government has grown, esp. since the 1960 s (Vietnam, Watergate, inflation-70 s, Clinton, Bush) • Political Efficacy: the sense that one can both understand & influence public policy (Internal) or that the government will respond to the citizenry (External)
Measurements of Public Opinion 1. By ELECTIONS 2. Straw (informal) polls 3. Scientific polls – Validity of polls must consider: a) Definition of universe: population to be measured (must be representative) b) Selection of sampling • Random means-each person in universe has same chance of being selected • Representative sample - National polls typically require ~1500 -2000 respondents • Sampling error: +/- results (low margin of error) c) writing the questions to avoid bias o Uses of polls: Informs public, candidates, office-holders, and provides projections on election night via exit polls 1. Can influence how politicians vote – due to duty to constituents and goal to get re -elected 2. However, politicians want to avoid “flip-flopping, ” “pandering, ” and must consider “party position” in voting as well
Political Socialization: process by which people acquire their political beliefs. 1. Family: Strongest. 2. Schools: Impart basic values (civic duty, patriotism) 3. Religion • Protestant - more conservative, esp Evangelicals • Catholic - tend to be more liberal, more accepted into mainstream Greater degree of conservativism on social issues (abortion, gay rights) Jewish - Liberal influence, strong support of Democratic Party 4. Race/Ethnicity • Whites: more conservative, greater support for Republicans • Blacks: more liberal, strongest & most loyal supporters of Democratic Party • Hispanics • Mexican-Americans and Puerto Ricans more liberal and supportive of Democrats • Cubans more conservative and supportive of Republicans • Asians: won by Democrats in last 3 presidential elections 5. Income/Social Class: • higher income more conservative & supportive of Republicans • lower income more liberal & supportive of Democrats
6. Gender Gap 7. Geographic Region: • Women more likely than men to vote • Solid South: traditionally Democratic, but increasingly • “Year of the Woman” 1992: many more now Republican women elected to Congress • New England: traditionally • Emily’s List Republican, but increasingly • “Soccer Moms” (1992 H. Clinton) Democratic in recent years • “NASCAR Dads” (blue collar conservatives) 8. Mass media: liberal elite • “security moms” (2004) • Palin’s “Hockey Moms” (2008), “Mama Grizzlies” (2010) • 2012: Democrats charge the Republicans with a “War on Women” regarding reproductive rights/contraception
Ch. 8: Voter Turnout A. Historical Qualifications for Suffrage 1. Religion (eliminated by state legislatures) 2. Property (eliminated by state legislatures) 3. Race (eliminated by 15 th Amendment-1870) • Methods used to disenfranchise: • Literacy test, poll tax, grandfather clause, white primary 4. Sex (eliminated by 19 th Amendment-1920) 5. Income (eliminated by 24 th Amendment banning the poll tax-1964) A. Literacy (eliminated by Voting Rights Act of 1965) 1. Minimum age of 21 (eliminated by 26 th Amendment-1971) • Current Qualifications (set by states): 1. Citizenship Felons 2. Residency Registration (except ND)
Voter Turnout in U. S. compared to foreign nations 1. Voter turnout=number of those who voted/number of those ageeligible to vote. 2. V. A. P. 3. V. E. P. – 4. Presidential Elections US ~50%, Midterm Congressional ~30 -40%, Lower state/local about 10% *Decline since 1960 but rose slightly in 2008 56% 5. Comparable industrialized nations in West ~90%
Reasons for low Voter Turnout A. Institutional barriers 1. Registration: National Voter Registration Act of 1993 (Motor Voter Bill) 2. “Ballot Fatigue” 3. Excessive number of elections. 4. YOUNG have lowest turnout B. Political Reasons 1. Lack of political efficacy 2. Dissatisfaction with candidates, parties, politics 3. Lack of strong 2 -party competition 4. Weakness of parties in mobilizing voters • 1890: Australian ballot-
Who participates in politics? A. Characteristics of those likely to vote: 1. Greatest predictor of voting EDUCATIONAL ACHIEVEMENT. 2. INCOME 3. AGE 4. RACE/ETHNICITY 5. SEX 6. RELIGIOUS INVOLVEMENT
Factors affecting voter behavior: A. Geography 1. Solid South: 2. Great Plains: 3. Rocky Mountain Region: 4. New England: 5. Far West: 6. Rust belt states: Ohio, Michigan, Wisconsin, Indiana – swing states (55 combined electoral votes) 7. Sun belt states: from FL to CA; demographic changes as a result of Latino voters B. Political Party ID: Strongest predictor of voting behavior 1. Straight ticket voting; decline in recent years, facilitated by party-column ballot 2. Split ticket voting; increase in recent years. Facilitated by office-bloc ballot. 3. Independents: rising number, tend to be young, college educated, above-average incomes
C. Demographic Factors 1. 2. 3. 4. Sex: Male v Female. Race/Ethnicity: White v. Nonwhite Social Class: Lower v. Upper Religion: Protestant v. Catholic v. Jewish D. Issues 1. Retrospective Voting 2. Prospective Voting: E. Candidate Appeal: coattail effect of strong presidential candidate F. Time 1. Critical (“realigning” elections): long-term change in political alignment, e. g. 1860, 1896, 1932 2. Midterm elections:
Ch. 10: Elections and Campaigns: • Majority of campaign money spent on media buys • Two phases in elections: 1. Getting nominated 2. Getting elected I. Congressional Elections: 1. Elections are regularly scheduled • House: every two years • Senate: every two years 1/3 of seats are up (continuous body) 2. Fixed terms of office, no term limits 3. Winner-take-all/single-member district system (House) (most votes wins the seat)/”at-large” (Senate)
Congressional elections Factors affecting outcomes: 2. Advantages of incumbents: 1. Incumbency: greatest influence • Franking privilege ~90% of congressmen who run are reelected; ~80% of senators • Campaign staff already in place • Gerrymandered districts (“safe seats”) • Committee service to district • Name recognition • Casework done for constituents • Pork barrel projects for district (“earmarks”) • Money (incumbents outspent challengers by 3: 1 ratio) •
Primary Elections • Part of the Progressive reform of the early 20 th century designed to weaken parties • Types: 1. Closed • • Used in most states Only registered party members can vote for partisan offices, no crossing of party lines 2. Open: • Any voter may get ballot of any party they choose 3. Blanket: • Voters can “mix and match” their votes. In CA: top two candidates proceed to the general election regardless of party affiliation (effective 2012 – Prop 14) Similar to a run-off election
III. Primary vs. General Elections A. Caucuses: Importance of IOWA B. Primaries: 1. Other states use presidential primaries as method of sending delegates to national convention. Use of primaries has increased in the last 30 years. 2. “Beauty contest primary: ” 3. Delegate selection primary: 4. Importance of NEW HAMPSHIRE: 5. Dems use “superdelegates”
C. Nominating System National Convention: 1. Selection of presidential nominee: 2. Selection of VP nominee • “balance the ticket” • Development of party platform • Reconciliation and unification of party by end of convention
D. Analysis of Nominating System: Pro: 1. Highly participatory: caucuses, primaries, conventions 2. Testing ground-weeds out the weaker candidates Con: 1. Low turnout rates 2. Too lengthy 3. Voters in primaries tend to be better educated and more affluent than those in general elections 4. Delegates at caucuses and convention tend to be unrepresentative: more ideological, more activist, more education, less moderate, much more wealthy
The Electoral College 1. Each state has as many electoral votes as it has members of Congress (minimum of 3) 2. D. C. has 3 votes (23 rd Amendment) 3. 538 electoral votes 4. CA-largest at 55 5. Each party develops a slate of electors prior to election 6. Winner-take-all: Candidate with most popular votes (only a plurality is needed) wins all of that state’s electoral votes. 7. Concentration of campaigning in large, competitive states. 8. 270 to win 9. If no candidate has majority:
Criticisms: • President can be elected with only a plurality, rather than a majority, of popular votes, esp with presence of strong 3 rd party candidates • Possibility of a minority president (due to winner-take-all-distorts margins of victory) (1824, 1876, 1888, 2000) • “faithless electors” • Small states proportionally overrepresented, esp if election goes to House • Inhibits development of third parties Alternatives: • Direct election: • District system • Proportional system • Keep electoral votes but abolish the electors themselves
Campaign Finance: FECA Federal Election Campaign Acts, 1971 -74: disclosure, subsidies, limitations 1. Established Federal Elections Commission to regulate federal elections 2. All candidates must disclose contributions and expenditures 3. Pres candidates can receive federal subsidies – matching funds 4. Contribution limitations: • Individuals: $1, 000 per candidate, per election • PACs: $5, 000 per candidate, per election, no overall cap; $15, 000 to a national political party. (Political Action Committees were created as a result of FECA’s finance reforms; PACs are committees established by corporations, unions, and interest groups to raise money for campaigns through voluntary contributions) 5. CHALLENGED in Buckley v. Valeo (1976) – effect on FECA: 1. Court upheld limits on campaign contributions 2. Court struck down limits on congressional campaign spending. 1 st Amendment protects spending as a form of expression. (limits on presidential races allowed because subsidized by fed gov)
Campaign Finance: 2002 BCRA/Mc. Cain-Feingold 1. BANS SOFT MONEY donations to national political parties. Soft money: undisclosed, unlimited donations to parties for party building activities. 2. Limits soft money donations to state political parties to $10, 000; restricts use of these donations to voter registration and get-out-the-vote drives. 3. Doubled individuals’ “hard money” donations to $2, 000, and indexes future increases to inflation (now $2, 500 for 2011 -12 election cycle). Hard money: disclosed, limited donations to candidates. 4. No change on PAC limits. 5. Unions and corporations banned from giving soft money to parties. 6. Challenged by Mc. Connell v. FEC, 2003: UPHELD BCRA 7. Challenged by Citizens United v FEC, 2010: STRUCK DOWN provisions restricting electioneering communications, independent expenditures
Analysis: 1. No subsidies for congressional campaigns, further incumbency advantage 2. No limits on spending in congressional races 3. Citizens United overturned BCRA limits on corporate, union, and individual independent expenditures: Creation of “Super PACs” 4. Growth of 527 organizations: tax exempt groups that engage in political activities can receive unlimited contributions and spend them on voter mobilization efforts and issue advocacy ads
5. Minor party pres candidates cannot receive subsidies before the election unless their party earned at least 5% of the popular vote in the previous election 6. Parties are weakened since pres election fund goes to candidates themselves: rise of candidate-centered campaigns rather than party-centered campaigns 7. Cost of campaigns has risen: more time spend fundraising
FECA vs. BCRA: What did they do? FECA, 1974 • LIMITS on political contributions • Individuals: $1, 000 • PACs: $5, 000 • NO limits on spending own money • DISCLOSURE of contributions & expenditures above certain levels ($100) • SUBSIDIES of presidential elections in the form of public matching funds • FEC created BCRA, 2002 (Mc. Cain. Feingold) • BANNED SOFT MONEY (unlimited, undisclosed contributions to national parties) • HARD MONEY increases and indexed to inflation • Individuals from $1, 000 to $2, 000 • No changes for PACs • Increases for national, state, & local party committees • RESTRICTED “ELECTIONEERING COMMUNICATIONS” • Corporations & unions could not engage in these 30 days prior to a primary and 60 days before a general
FECA vs. BCRA: Court Challenges FECA, 1974 • BUCKLEY V VALEO, 1976 • UPHELD: disclosure, limits • STRUCK DOWN: spending candidate’s own money, limits on independent expenditures, campaign spending BCRA, 2002 • MCCONNELL V FEC, 2003 • UPHELD: soft money ban, increased limits on individuals • CITIZENS UNITED V FEC, 2010 • REMOVED restrictions on corporations and unions spending on “electioneering communications”
Effects: FECA, 1974 BCRA, 2002 • Increase in PACs • Rise of 527 s • Increased the amount of money spent on elections • Rise of Super. PACs (post Citizens United) • Increase in money spent on independent expenditures from corporations, unions • Increase in soft money spending • Incumbent advantage • Advantage for wealthy • No limits on independent expenditures from individuals, PACs, 527 s, Super. PACs, parties • Increase in cost of campaigns • Incumbent advantage
Unit 3 PARTIES, INTEREST GROUPS & THE MEDIA 10 -20%
Decentralization/Weakening of Parties I. A. B. Parties are groups of people who seek to control government through winning elections and holding public office. US parties have weakened 1. 2. C. D. More independents Weaker organizations since the 1960 s Federal system decentralizes power Parties regulated by state and federal law
II. FUNCTIONS OF POLITICAL PARTIES A. Nominate candidates Previously: party caucuses, nominating conventions, Now: primary elections Expansion of primaries means this role is seriously diminished 1. 2. B. C. D. Raise and spend campaign funds (less so now) Register voters Unify diverse interests 1. F. Party leaders no longer control nominations; more candidate-centered politics than party-centered politics Means parties must take more moderate positions Provide patronage Most government jobs filled by Civil Service G. Inform public: party platforms H. Agents of political socialization I. Linkage institution between people and government
RISE OF POLITICAL PARTIES 1. Dangers of “factions” mentioned by Madison in Federalist #10 1. 1796 -1820: 1 st party system-Federalists vs. Jeffersonian Democratic. Republicans 1824 -1856: Jacksonian Democrats v. Whigs 1860 -1892: Republican dominance as the party against slavery and the party that put the Union back together 1896 -1928: 2 nd period of Republican dominance with its coalition of big business and the working classes against Democratic rural interests 1932 -1964: Democratic dominance under FDR and the New Deal. FDRs grand coalition included urban dwellers, labor unions, Catholics, Jews, the poor, Southerners, Blacks, farmers 2. 3. 4. 5.
6. 1968 -PRESENT: ERA OF DIVIDED GOVERNMENT/DEALIGNMENT a) b) c) d) Split-ticket voting (OFFICE-BLOC BALLOT) Presidents of one party (typically Republican) with Congresses of the other party (typically Democratic) Era of party dealignment, as voters are increasingly becoming independent (rejecting rather than changing party). HOWEVER, Party I. D. is still the strongest predictor of voting behavior Nixon and Reagan built a coalition of disenchanted white suburban middle class, Southern white Protestants, big business
PARTY ORGANIZATIONS: PARTIES ARE DECENTRALIZED ALONG FEDERAL LINES 1. National level National Convention. Highest Authority National Committee. When convention not in session National Chairperson Congressional Campaign Committee (for House seats) Senate Campaign Committee 2. State Committee 3. Local Committees: city, ward, precinct levels 4. Neither DNC nor RNC can “punish” state/local committees if they stray from the party line (decentralization)
V. NATIONAL CONVENTIONS 1. Sets the number of delegates for each state and rules for how those delegates shall be chosen Progressive Era Reforms : Direct primary elections Nonpartisan elections at state and local level Civil Service expansion – Pendleton Act (1883) At State level, implementation of measures to increase direct democracy: initiative, referendum, recall 17 th Amendment Hatch Act (1939): illegal for federal civil service workers to engage in political campaigns or activities
REFORMS OF THE DEMOCRATIC PARTY SINCE 1970 (MCGOVERN-FRASER COMMISSION) Prohibited unit rule at the convention (winner-take-all – Republicans still use in some states) Developed a “quota system” to ensure that the young, women, and minorities were represented in party affairs (especially the national convention) Superdelegates give the “party regulars” a chance to do what is good for the party, and not necessarily the people. 1986 Fairness Commission: lowered the threshold requirement from 20% to 15% for candidates to receive proportional delegates.
INTEREST GROUPS 1. 2. Defined: a group with common interest that seeks to influence government Madison (Federalist 10): dilemma of wanting liberty and order. Political factions were inevitable, but their effects must be controlled. A geographically large republic is more likely to be able to cure the “mischief of faction. ” Pluralism: growth of interest groups prevents the concentration of excessive power in the hands of few, and thus enhances democracy Weakness of political parties: when parties are unable to get things done, interest groups have filled the power vacuum
TACTICS OF INTEREST GROUPS 1. 2. media Grassroots mobilization: Building support among the public for social change or to prevent change. May be leveraged into change at the legislature, in the courts, in the economic system, or other areas of society. It is developing awareness of an issue among large numbers of people in order to support an action. 3. 4. 5. 6. 7. 8. 9. 10. Boycotting Litigation Use of amicus curiae briefs Campaign contributions Endorsement of candidates Issuing “report cards” to rate candidates/congressmen Initiative, referendum, and recall at state and local levels Lobbying
LOBBYING I. Defined: Attempting to influence government. Interest group lobbying is generally most effective on narrow, technical issues that are not well-publicized. A. Iron triangle: informal coalition of interest groups/congressional committee/federal agency that seeks to influence public policy. B. These are sometimes known as issue networks, policy networks, subgovernments
IFunctions of lobbyists: 1. 2. 3. 4. Influence government Provide information to government Testify at hearings Help write legislation Regulation of Lobbying: 1. 1946 Federal Regulation of Lobbying Act: Required registration and disclosure, but was full of loopholes 1. Lobbying Disclosure Act of 1995: Tightened up registration and disclosure requirements 1. Restrictions on gifts, meals, and expense paid travel that members of Congress may receive from lobbyists 2. Former agency employee must wait two years before lobbying that agency
THE CASE FOR LOBBYISTS: 1. 2. 3. 4. They provide useful information to the government They provide a means of representation on the basis of interest rather than geography. A “linking mechanism” between the people and government. A “third house of Congress. ” 1 st Amendment protection (assemble and petition) Madison in Federalist 10: the “remedy” of curing evils of faction by eliminating their causes is worse than the disease. Potential loss of liberty is worse than the abuses of lobbyists.
PAC STRATEGIES A. Campaign Contributions (Factors Affecting Who Gets PAC Money) 1. Incumbents 2. Those who share a similar philosophy 3. Those who are likely to grant access 4. Those in positions of special influence, e. g. party leaders, committee chairs, important committee seats 5. PAC money makes up a higher % of congressional campaign funds than presidential campaign funds. B. Independent expenditures, issue advocacy ads C. “bundling” D. 527 groups: 1. Not regulated by the FEC 2. Not subject to contribution limits as PACs; many are run by interest groups to get around limits/regulations
Who has PACs? 1. 2. 3. Corporations: ~50% of all PACs. Largest growth in these since 1970 s. Labor unions Leadership PACs: formed by congressional leaders Dangers of PACs: 1. Ethical concerns: does a contribution “buy” anything? 2. Drives up the cost of campaigning; more time spent by Congress on fundraising 3. Over-representation of those wealthy enough to have PAC representation 4. Under-representation of those who lack it 5. Further incumbency advantage
IN DEFENSE OF PACS 1. 2. 3. 4. Provide a means of participation and representation for the average person (linkage institution) 1 st Amendment right to petition the government No conclusive evidence that PACs change congressional votes. Diversify political funding. With over 4, 600 PACs, many interests are represented.
CH. 12: THE MEDIA WHO ARE THE MASS MEDIA? I. A. B. “Old” Media: newspapers and news magazines TV: Decline of 3 major networks with cable TV II. The “new media” A. Examples: Cable TV, the Internet: A. blogs, You. Tube, CNN, FNC, The O’Reilly Factor, The Daily Show, The Colbert Report, Rush Limbaugh, talk radio… B. Characteristics: More interactive More emphasis on entertainment “infotainment” Emotional Opinionated
EFFECTS OF THE MEDIA ON POLITICS I. Roles of media: A. B. C. 1. Gatekeeper: influence which subjects are of national importance, i. e. help to set national agenda Scorekeeper: Emphasis on horse race element of elections at expense of issues. Watchdog: Media are a primary linking mechanism between public and government 2. Selective attention: 3. Selective perception: 1. Past: people-parties-government 2. Now: people-media-government
White House manipulation of media (electronic throne) Photo ops 2. Sound bites 3. Spin control 4. Staged events 5. Trial balloons 6. “going public” when president takes case directly to the people Emphasis on sensationalism and scandal: “feeding frenzy” Far less coverage of SCOTUS than of Congress and president Media most influential In primary elections 1.
UNIT 4: INSTITUTIONS 35 -45% CONGRESS
Bicameralism: 2 -house legislature A. House of Reps Designed to be closer and more responsive to people Members elected directly by people Elected from smaller, singlemember districts Two-year terms Entire body elected every two-years Revenue (tax) bills must originate in the House B. Senate Designed to be more removed from the people Members originally elected by state legislatures (now by the people – 17 th Amend. ) Elected on an at-large basis Elected for six-year terms Only 1/3 Senate up for reelection every two years (continuous body); more stability and continuity
Do Members Represent Voters? A. B. C. Representational voting (acting as a delegate for constituents) Vote based on “majority” of constituency Difficult to gauge constituent opinion Most constituents are not aware of issues Diversity of interests Organizational voting Members vote to please colleagues Cues from: party, committee, ideology Members can use reciprocity (exchange of favors) and logrolling (exchange of votes) Attitudinal Voting (trustee role) A. Act according to own convictions and ideology
The Incumbency Advantage I. Scope of Advantage: 1. 2. Reelection rate in House >90% (96% in 2008) Reelection rate in Senate >80% (90% in 2008) II. Advantages: 1. 2. 3. 4. 5. 6. Franking privilege Staffers Patronage Name recognition Casework Money, esp from PACs
Special Incumbency Advantage: Reapportionment and Gerrymandering To understand gerrymandering, you must understand reapportionment: the redistribution of 435 seats in the House on the basis of population changes in states 1. Number of reps per state determined by population 2. Census Bureau conducts decennial census every 10 years 3. Census Bureau will show population changes in states, which must then be reflected in state representation in the House States that gain population, gain seats States that lose population, lose seats Size of the House fixed at 435
Gerrymandering 1. 2. • 3. • • Redistricting must be done if a state has a change in the number of seats. State legislatures re-draw congressional districts. Gerrymandering: when the district is drawn to the advantage of the party controlling state legislature Each district is supposed to have the same number of people and drawn in one contiguous piece The party in power in the State Legislature can get a majority of seats in the House in two ways: “Cracking: ” drawing the district lines in such away as to disperse the opposing party throughout the state and dilute the party’s strength “Packing: ” drawing the district in lines in such a ways as to concentrate the opposing party in a few districts, thus preserving a majority of seats for itself.
Effects of Gerrymandering Effects: 1. 2. 3. The party in power STAYS in power “safe” seats are created for incumbents “majority-minority” districts created by racial gerrymandering Supreme Court redistricting requirements: 1. 2. 3. 4. 5. Districts must be as near equal in population as possible District lines must be contiguous Racial gerrymandering is prohibited (Shaw v. Reno, 1993). Race may not be the primary factor in drawing district lines (Miller v. Johnson, 1995) Cannot dilute racial minority voting strength “communities of interest” may be kept intact
Supreme Court Rulings 1. Baker v. Carr, 1962 • The Court found that the reapportionment of federal districts was justiciable • “one man, one vote” principle applied to state legislative districts to correct overrepresentation (malapportionment) of rural areas 2. Wesberry v. Sanders, 1964 • Court held that sections of states may not be over- or under-represented saying that one person’s vote must be equal to another’s • Result of over-representation of rural districts • “one person, one vote” ruling applied for House districts
Leadership in the House: A. • • • The Speaker of the House Presides over the House Appoints select and conference committees Appoints Rules Committee members and its chairman Assigns bills to committees Influences agenda of the House media access B. Majority/Minority Leader 1. Partisan positions chosen by party members 2. Floor leaders and legislative strategists C. Majority/Minority Whip 1. Assistant floor leaders; Inform party leaders on “mood” of House 2. Keep nose count on important votes; persuade party members to vote with party 3. Liaison between party leadership and rank and file members
Leadership in the Senate: The VP is the President of the Senate 1. • • He may only vote to break a tie, and cannot speak or debate on the floor He may recognize members, and put questions to a vote The president pro tempore of the Senate serves in the absence of the VP 2. • The president pro tem is elected by the Senate and is a leading member of the majority party Majority Leader 3. • True leader in the Senate and of majority party • Recognized first for all debates • With power to filibuster, this gives Majority Leader strong influence on bills • Influences committee assignments • Influences senate agenda, along with Minority Leader • Media coverage 4. Minority Leader and Party Whips: same as House
Strength of Party Structures Party Unity 1. 2. 3. Best predictor of congressional voting: party unity scores are strong. Party polarization American voters tend to be more moderate while congressional Dems and Reps more ideological Party Caucuses 1. 2. 3. 4. Rivals to party in policy formulation Weakening of parties, decentralization of Congressrise in caucuses Particular interests meet to promote policy goals CBC, Blue Dog, Hispanic, Prayer, Pro-Choice, African Trade…
Organization of Congress: Congressional Committees A. Real work of Congress is done in committees and subcommittees, not on the floor of the House or Senate B. Before bill goes to floor, first goes through committee Unless House votes to “discharge” it onto the floor for consideration if committee refuses to “report out” (Senate committees cannot prevent bills from reaching floor). C. Functions: Analyze legislation Conduct investigations of executive branch on as-needed basis Conduct oversight of executive branch agencies on an on-going basis Selection of members: D. 1. 2. 3. A. Importance of getting on the right committee, i. e. one in which a member can best serve his/her constituents, and thus increase chances of reelection Members are assigned by either the Committee on Committees (R) OR Steering and Policy Committee (D) Whichever party has a majority in house has majority on committee Chair is of majority party, ranking member is of minority party
Selection of Committee Chair 1. Power of chairperson is substantial over: Setting agenda Hiring staff Membership on subcommittees Jurisdiction on subcommittees 2. Chairs are selected by secret ballot in party caucuses or conferences (of party leaders) at beginning of term 3. Ranking member: most senior member of minority party on committee 4. Generally seniority system is followed-person of the majority party with most seniority on that committee is chosen chair. 5. Advantages of seniority system: Experience Stability Expertise Reduces infighting among rivals for chair 1. 2. 3. 4.
Important Standing Committees: permanent committees of Congress. They have legislative, investigative, and oversight powers. Types of standing committees: A. 1. 2. 3. authorizing: allow for creation of federal programs appropriations: provide funding for federal programs revenue and budget: raise money for federal programs
House Standing Committees (21) A. 1. Rules: most powerful of all. Sets legislative calendar and establishes rules for debate and amendments. • • 2. 3. Ways and Means: deals with tax bills Appropriations: deals with spending bills Authorization bill allows for money to be spent, and appropriation bill provides the actual funding for the program “earmarks: ” special projects set aside by members to benefit home districts or states. Budget: created by Budget Impoundment & Control Act (1974) to examine President’s budget and draft a concurrent resolution to reconcile fiscal policy with the budget 4. Sets legislative calendar (“traffic cop” of House) Issues rules for debate and amendment (open rule allows former, closed rule does not)
C. Senate Standing Committees (17) 1. 2. 3. 4. 5. Finance Committee: deals with tax bills Appropriations: deals with spending bills Budget: counterpart to House Budget Committee Foreign Relations: Senate has larger role in foreign affairs than House because of treaty ratification and ambassador confirmation provisions in Constitution Judiciary: Screens judicial nominees. Careful scrutiny given because of the power of the modern judiciary and the fact that judges have life terms.
Other Committees A. Conference Committees 1. 2. Temporary committees comprised of members from both Houses Develop compromise language on a bill when House and Senate versions differ (about 10% of the time) B. Other types: 1. 2. Select: appointed by a house for a limited, temporary purpose, e. g. to study an issue or to conduct an investigation Joint: composed of members from both houses for similar temporary purposes
How a Bill Becomes a Law A. Bill Introduction 1. Less than 10% actually pass n 2. Ideas for most bills originate in the executive branch n 3. Bills can be introduced in either house, except for revenue (tax) bills (House only) 4. Passage of a bill requires only a simple majority. – Measures that apply to the nation as a whole Private bills: – Measures that apply to certain people or places n Joint resolutions: – Deal with unusual or temporary matters; similar to bills and have the force of law – Used to propose amendments to the Constitution and to annex land intent of the Founders: to create a cautious and deliberate process. 5. Public bills: n Concurrent resolutions: – Matters in which both houses must act together, but do not need presidential signature
Committee and Subcommittee Action 1. After the 1 st reading, a bill is referred to the “correct” committee 2. Committee Actions: Pass. A bill is “reported out” to full house for consideration Kill. Amend (“mark-up” session). Earmarks are placed at committee level by individual members Pigeonhole: postponed indefinitely; most frequent fate of a bill. 3. Discharge petition can be used when a bill is bottled up in committee 4. Importance of Rules Committee (House only) • “traffic cop” function: sets legislative calendar • Issues open rule that allows amendments to a bill or closed rule that prohibits such amendments (especially on tax bills) • Establishes rules on floor debate 1. Committee of the Whole used by House to act more informally, more quickly, and with smaller quorum (only 100).
Floor Action 1. Senate only allows filibusters. 2. Filibusters and cloture (3/5) votes becoming more common: Even threat of filibuster is effective. Can be curtailed by “double-tracking” 3. Senate only allows nongermane amendments (“riders”). “Christmas tree” bills can result. 4. Senate allows any member to place a hold on a bill or presidential nomination.
F. Presidential Action 1. Sign the bill in full 2. Veto the bill in full. Can be overridden by a 2/3 vote in both houses Ignore the bill: After 10 days, the bill automatically becomes law If within that 10 day period, Congress adjourns (not recess), the bill is pocketvetoed Congress gave the president a line item veto in the mid-90 s, but struck down in Clinton v. NY, 1998 as violation of separation of powers. Would have enabled the president to legislate. Most governors have power of line item veto. 3. 4.
The Structure and Powers of Congress I. A. Delegated Powers to the National Government (Expressed, Implied, Inherent) Expressed/enumerated: actually stated in the Constitution (Article I, Section 8) 1. 2. 3. 4. 5. 6. 7. 8. Levy taxes (revenue bills must originate in the House) Coin money, Borrow money, Spend money for common defense and public welfare Regulate foreign, interstate, and Indian commerce. This clause has been tested frequently in the Courts due to its broad interpretation by Congress. Establish naturalization, standards for weights and measures, bankruptcy laws, post offices Grant copyrights and patents Create inferior federal courts Define and punish piracy, counterfeiters Declare war; raise and support an army/navy
Powers of Congress B. Implied: 1. 2. 3. 4. Suggested, but not actually stated in the Constitution Basis: Necessary and Proper (Elastic) Clause Strict vs. Liberal Constructionist approaches Examples: national bank (Mc. Culloch v. MD), CIA, air force… C. Inherent: 1. 2. Powers the national government has because it is a sovereign government Examples: regulating immigration, acquiring territory, granting diplomatic recognition
Powers of Congress D. Institutional Powers Those that relate to system of checks and balances 1. Senate ratifies treaties with 2/3 vote 2. Senate approves presidential appointments with majority vote 3. House votes for impeachment (majority vote); Senate tries impeachment (2/3 vote to convict). 4. House elects President if not electoral majority; Senate elects VP 5. Proposal of constitutional amendments with 2/3 vote of both Houses 6. Each can seat, unseat, and punish (censure) its own members E. Powers Denied to Congress: 1. Passing ex post facto laws: 2. Passing bills of attainder 3. Suspending habeas corpus
UNIT 4: INSTITUTIONS THE EXECUTIVE: PRESIDENT & THE BUREAUCRACY
Constitutional Roles-Chief Executive: Powers: 1. 2. • • “take care” clause of Article II requires that the president enforces laws, treaties, and court decisions. This clause has also been used to justify: Issues executive orders to carry out laws-do not need Congressional approval Checks: Congress passes the laws and has the “power of the purse” Senate can reject appointments and treaties Impeachment (House) and removal (Senate) Supreme Court can strike down executive orders CHIEF JURIST: Powers: 1. Appoints federal judges 2. Issues pardons and amnesty Checks: • Senate can reject judicial appointments • Senators can place “holds” on appointments • Senators can filibuster nominations
Commander-in-Chief Diplomat Power: 1. head of the armed forces Checks: • Congress appropriates funds for the military • Congress declares war • War Powers Act of 1973 1. Sets overall foreign policy 2. Appoints and receives ambassadors 3. Negotiates both treaties and executive agreements 4. Gives diplomatic recognition to foreign governments Powers: Checks: • Congress appropriates funds foreign affairs • Senate can reject ambassadors and treaties
Non-constitutional Roles: A. Head of Political Party 1. 2. Selects the party’s chairman of the national committee and VP nominee Political patronage B. Chief Economist 1. Proposes the federal budget (though Congress can alter it)
Growth of Presidential Power 1. Originally Congress, not President, was to be dominant 2. Non-constitutional sources of presidential power Unity of office (1 person as opposed to 535 member Congress) Growing complexity of society: with a highly industrial and technological society, people have demanded that the federal government play a larger role in areas of public concern, e. g. pollution, labor issues, air travel safety. The executive branch has thus grown to meet those public demands. Congressional delegation of authority to the executive branch: • Congress writes broadly-worded legislation and lets executive agencies “fill in the holes” (discretionary authority) • Congress often bows to presidential demands in time of economic or foreign crisis a) b) c) d) Development of mass media and the president’s “electronic throne” e) Emergence of U. S. as the great superpower after WWII. Development of the Cold War placed the U. S. into a virtual non-stop crisis situation after 1945 – assumption of great powers by the president to deal with various foreign crises.
IV: Overview and Powers of the Presidency A. Qualifications: B. Terms of Office: 1. 2. Four years Maximum of two elected terms. Passage of 22 nd A. due to Republican Congress’ concern over future FDRs. C. Succession 1. If office of presidency is vacant due to death, resignation, or impeachment and removal, the VP becomes President. If VP dies before his inauguration as President, the line of succession is as follows: Speaker, Pres Pro Tem, Sec of State, Treasury, Defense, and then the other Cabinet sec in order of creation of offices. (Presidential Succession Act of 1947). 2. If the President is disabled, the 25 th Amendment applies: President informs Congress of disability and the VP becomes Acting President. If the President is unable to inform Congress, the VP and a majority of Cabinet secretaries can go to Congress and receive approval for the VP to become Acting President
3. Appointments to the White House Office (e. g. Chief of Staff) do not require Senate consent. Officials are less subject to testifying before Congress since they have a greater degree of executive privilege protection. Presidents typically seek people who will be loyal-fewer divided loyalties as compared to Cabinet positions B. The Executive Office of the President Appointments to the EOP require Senate consent. 1. OMB: prepares the annual budget and reviews federal programs. 2. NSC: 3. CEA: 3. OPM:
The Cabinet A. definition: the head of the Cabinet departments and 5 others who hold “Cabinet rank” (OMB Director, CIA Director, WH Counsel, UN Ambassador, US Trade Rep, head of SBA) B. Each of these is appointed by the President with Senate consent Cabinet officials are constitutionally banned from also being members of Congress. The Cabinet meets irregularly. Only at the call of the President. Cabinet officials are more interested in defending/enlarging their own departments than they are in meeting together to create public policy. Arguments against enlarging Cabinet: 1) 2) 3) Divided loyalties of Cabinet officials: are the Secretaries most loyal to President? To the Congress (which funds departments)? To client groups (which depend on departments)? To employees of departments (Secretaries deal with daily)? President’s goals often conflict with Cabinet department’s goals
The Office of the President A. 1. 2. White House Office/White House Staff (no Senate consent) Immediate staff of President: office space in West Wing = proximity to President. Rule of propinquity: power is wielded by people who are in the room where decisions are made. Organization: a) Circular method allows for greater access and more information, but at the expense of efficiency. b) Pyramid method allows for greater efficiency, but at the expense of access and information.
The Power to Persuade Checks that weaken the President: A. B. Constitutional checks: • Congress and courts Informal checks: Congressional leaders, Cabinet, bureaucrats, political parties, interest groups, media, Senate’s use of holds and filibusters on nominations, divided government, multilateral world
Congress vs. the President Sources of Conflict: A. Separation of powers and checks and balances – there is supposed to be conflict. B. Each represents different constituencies Congress: state/local interests (“all politics is local”) President: national interests C. Different times of election: difficult for either to gain excessive power for any great length of time. D. Partisanship E. Unity of office (President) vs. diffusion of power (Congress) F. “two presidencies” thesis: congress more cooperative on foreign policy and national security issues, but less so in domestic and economic issues
Sources of influence on Congress: A. B. C. D. E. F. G. Use of media. Media focuses more on a single person than on 535 people. President can easily go directly to the people with his case. “Mandate from the people” after winning election by a large margin. Patronage Chief of party role: convincing members of Congress to act in interests of “party unity. ” Personal lobbying of members of Congress. Veto, or its threat. Presence of a national emergency.
Roles of the President Constitutional Roles: A. Chief legislator. Powers: Proposes legislation Signs laws. Sometimes uses “signing statements” Vetoes legislation (no line item veto as ruled by SCOTUS [Clinton v. NY, 1998] – separation of powers) Makes a State of the Union Address to Congress Checks: Congress need not pass suggested legislation Congress can override veto with 2/3 majority in both houses
The Power to Say No: The Imperial Presidency A. B. C. • D. • • CAUSES: economic growth necessitated a strong executive branch. Congress itself delegated strong powers to the executive branch, especially in the area of foreign policy Areas of abuse cited by Schlesinger: Constitutional conflict of Congress’ power to declare war vs. President’s power as Commander-in-Chief Use of executive agreements rather than treaties. The former does not require Senate ratification as does the latter. Executive privilege. Def: the right of President to not divulge conversations between himself and his advisers. In U. S. v. Nixon (1974), the Supreme Court stated that Presidents are in fact entitled to executive privilege most of the time, but not in criminal cases.
E. Impoundment. Def: the refusal of the president to spend money that has been appropriated by Congress 2. Without a line item veto, Presidents must either sign an entire bill or veto it. As a result, Presidents may be unhappy with funding amounts for certain parts of a bill, and want to withhold such funding. 3. Passage of Budget and Impoundment Control Act of 1974: 4. If President impounds funds temporarily (deferral), either house can override. 5. If president impounds funds permanently (rescission), the act is automatically voided unless both house of Congress approve within 45 days. 6. Establishment of CBO as a check on OMB. 7. Congress given three additional months to consider the President’s proposed budget. 8. Establishment of Budget Committees in each house. 1.
President’s Program. Congress Responds to the Imperial Presidency: a reassertion of congressional authority in mid-1970 s. War Powers: passage of the War Powers Resolution of 1973. A. President can send troops overseas to an area where hostilities are imminent without a congressional war declaration only under these circumstances: 1. Must notify Congress within 48 hours. 2. Must withdraw the troops after 60 days (can be extended by 30 days if safety of troops requires it) 3. Must consult with Congress if troops are to engage in combat. 4. Congress can pass a resolution, not subject to presidential veto, to withdraw troops SENATE CONFIRMATION OF APPOINTMENTS 1. Senatorial courtesy a long-established practice: before President makes an appointment within a state, he will consult with the two senators of that state for approval 2. Much closer scrutiny given by Senate to recent appointments 3. Controversy over recess appointments 4. “rule of fitness” seems no longer sufficient, now its policy preferences 5. Long confirmation delays (holds)
Legislative Veto 1. In the past: Congress passed a law, then the relevant executive agency issued regulations to enforce the law, then Congress could analyze those regulations and veto them if it so desired. 2. A way to force the bureaucracy to conform to congressional intent 3. In INS v. Chada (1983) the Supreme Court declared the legislative veto to be an unconstitutional violation of separation of powers. 4. 1996: Congressional Review Act allows Congress to repeal regulations with approval of President. Congress can still use legislative veto if agency does not challenge its use, or can use other powers (funding) to exert influence over agencies.
Review: Structure of the American Bureaucracy Executive Branch Agencies: 1. White House Office: president’s closest assistants, can be hired and fired at will 2. Executive Office of the President: agencies that report directly to the President, top positions appointed by president and approved by Senate, can be fired at president’s discretion main agencies: OMB, DNI, CEA, OPM, US Trade Rep 3. The Cabinet: not in Constitution (authority in Article II, Section 2), heads of 15 executive departments, appointed by President and confirmed by Senate, can be fired at president’s discretion 4. Independent executive agencies: organized much like Cabinet departments, but lack Cabinet status (ex. NASA, SSA) President appoints members and confirmed by Senate, agency heads serve fixed terms and can only be removed for cause 5. Government corporations 1. Created by Congress to carry out various business operations. Directors appointed by President, confirmed by Senate, serve fixed terms. 2. Ex: USPS, FDIC, TVA
6. Independent Regulatory Commissions 1. 2. 3. 4. 5. Created by Congress to regulate important aspects of the nation’s economy. Generally, the decisions of these are beyond presidential control, though commissioners are appointed by the President with Senate consent Commissioners serve long terms (5 -14 years) Only a bare majority can belong to the same party Terms are staggered Commissioners can be fired by the President only for causes that Congress has specified. Have quasi-legislative power: rules and regulations (published in the Federal Register) have the force of law (“policy implementation”) Have quasi-judicial power: can settle disputes in their fields Some important regulatory commissions: Federal Reserve Board, FCC, FEC, NLRB, SEC, FTC
II. The Growth of the Bureaucracy A. B. Early controversies: Presidential appointments were to be confirmed by the Senate, but only removable by the president alone. Congress has the power to fund and investigate. Development of the civil service system Up to late 19 th century, spoils system used to fill federal jobs Pendleton Act (1883) created a civil service (exam-based) merit system to fill government jobs. Civil Service Commission (now OPM) administered exams. Today, over 90% of federal employees are civil service workers Under 10% of top-level federal jobs are still filled by presidential appointment (political appointees).
III. The Federal Bureaucracy Today A. 1. 2. B. 1. 2. 3. Size: There about 3 mn. Civilian federal employees Number has been fairly constant since 1950. Result of more efficiency? Or, result of more federal money being transferred to state and local governments to administer federal programs? Power of the bureaucracy: Discretionary authority: agencies have the power to choose various courses of action when Congress writes broadly-worded laws that allow for bureaucratic interpretation. Primary areas of delegation: 1) Subsidies 2) Grant-in-aid programs 3) Enforcement of regulation Other areas: helping draft legislation, advice to the WH, settling disputes Reasons for growth of power: C. 1. National growth, technology, international crises, once created-hard to kill
IV. Influences of Bureaucratic Behavior A. 1. 2. 3. B. C. D. 1. 2. 3. Recruitment and retention Most bureaucrats are appointed by civil service exam (merit-based, administered by OPM) As system decentralizes agencies hire as needed. The “excepted service” employs more than half federal workers still using OPM standards Legal exceptions: presidential appointees, Schedule C appointments, NEA jobs The buddy system: name-request jobs can circumvent process Firing a bureaucrat: most cannot be fired with the exception of the SES. Agency’s Point of View Many bureaucrats have a “loyal” or “agency” point of view System assures continuity and expertise in policies and procedures among many bureaucrats Agency managers must cultivate support of subordinates
Influences… E. Demographic Attributes 1. 2. 3. Low and mid-level bureaucrats are fairly representative of American people on basis of race, sex, religion… Upper-level bureaucrats are not: mostly middle-aged, white males with college degrees from advantaged backgrounds Surveys show bureaucrats tend to be more liberal than general public, especially those who work in “activist” agencies (EPA, FTC…) than those who work in “traditional” agencies (Justice, Defense, Treasury…) 4. Only 10% live in D. C. 5. ~30% work in a defense agency 6. Less than 15% work in a welfare agency 7. Most are white collar workers F. Constraints Legal: 1. Administrative Procedure Act (1946) 2. Freedom of Information Act (1966) 3. Hatch Act (1939) 4. National Environmental Policy Act (1969): impact reports 5. Privacy Act (1974) 6. Open Meeting Law (1976) 7. Affirmative action hiring guidelines Organizational: 1. Size of agencies make action difficult 2. Red tape 3. Lack of monetary incentives to take action
V. Controlling the Bureaucracy: Presidential Influences A. Powers 1. 2. 3. 4. 5. 6. 7. To appoint top-level bureaucrats to fire top-level bureaucrats To propose reorganization of executive branch To propose agency budgets Appointment of SES personnel “central clearance” OMB oversight B. Checks 1. 2. 3. 4. 5. Senate confirmation for toplevel appointees President cannot fire vast majority of bureaucrats Reorganization must go through Congress Agency budgets must go through Congress SES has had little impact on accountability
Congressional Influences A. Powers 1. 2. 3. 4. 5. 6. Appropriations of agency budgets Standing committee oversight, investigations, hearings GAO Reorganization Appointment confirmation Sunset laws B. Limits Congress may not want to check power of the bureaucracy: Members profit politically from the existence of federal programs within their states/districts Easier for Congress to pass broadly-worded legislation and have experts in bureaucracy fill in the holes
Other Influences A. Interest Groups 1. 2. 3. 4. Lobbying Revolving door Client groups Iron triangles/issue networks/policy networks (subgovernments): Congressional committee, relevant agency, related interest groups. (Hugh Heclo) B. Media 1. 2. 3. Scrutiny of agency behavior Use of “whistle blowers” Releasing “leaks” from government officials.
UNIT 4: INSTITUTIONS THE JUDICIARY: FEDERAL COURT SYSTEM
Evolution of the Federal Courts A. • • • Founders’ view: Federalist 78 (Hamilton) argued that the Courts were the least dangerous branch, although the federal judiciary has evolved towards judicial activism Marshall Court claimed the supremacy of the federal government and the Court’s power of judicial review Marbury vs. Madison, 1803 established the power of judicial review Mc. Culloch vs. Maryland, 1819 declared the supremacy of federal law over state law and upheld the concept of implied powers Gibbons v. Ogden, 1824 confirmed the supremacy of the federal government in its ability to regulate commerce
II. The Structure of the Federal Courts • Only the Supreme Court is created by the Constitution (Article III) A. Congress created 2 types of lower federal courts: Constitutional and Legislative 1. Constitutional courts (“regular”) • Article III creates the Supreme Court and also gives Congress the power to create “inferior” (lower) federal courts. • Judges in these courts hold life terms. • Three levels of constitutional courts: District Courts, Courts of Appeals (Circuit Courts), and the Supreme Court
1) The District Courts 1. 2. 3. 4. 5. 6. 7. Federal trial courts in which 90% of the federal cases are heard There are 94 district courts Cases are tried by a judge and a jury Use grand juries to issue indictments, but a petit jury decides outcome Jurisdiction: original May try civil, criminal, or constitutional cases Decisions may be appealed to Circuit Courts of Appeals
2) The Circuit Courts of Appeals 1. 2. 3. 4. 5. 6. Created by Congress in 1891 to relieve the Supreme Court’s docket of appeals from district courts 12 courts of appeals A Supreme Court justice assigned to each of the appellate courts Cases are usually heard by a panel of 3 judges, except when all judges of a Circuit Court hear a case “en banc” Jurisdiction: appellate Decisions may be appealed to the Supreme Court
Types of Federal Courts 2. Legislative (“special”) courts, also called Article I courts: • Created to carry out the enumerated powers of Congress • Judges in these courts hold fixed terms of office – Examples: U. S. Court of Appeals for the Armed Forces, U. S. Court of Appeals for Veterans Claims, U. S. Court of Federal Claims, U. S. Tax Court, and territorial courts
B. Selecting Judges 1. 2. 3. 4. Appointed by the president with the “advice and consent” of the Senate. Article III states they shall hold their offices “during good behavior” (for life) They can be impeached and removed by Congress (rare) Compensation: set by Congress, cannot be lowered during judges’ terms of office. C. Factors Affecting Selection of Federal Judges 1. 2. 3. Senatorial Courtesy Senate Judiciary Committee Senate: majority vote needed to confirm nominees 4. Political party 5. Diversity: gender and race 6. Age: life terms means judges will often outlast the presidents that appointed them. Presidential influence continues then, even after they leave office 7. Ideology: the “litmus test” Presidents try to appoint people of similar philosophy. 8. ABA consideration (used by Judiciary Committee) 9. Nominees “paper trail” 10. Number of judges: Congress can increase or decrease the number of courts and judges.
D. Federal Attorneys 1. – – 2. – – – 3. – – Attorney General: Appointed by president with Senate consent Head of Justice Dept. Solicitor General: Appointed by president with Senate consent Represents U. S. government in Supreme Court Decides which cases the federal government will appeal to the Supreme Court U. S. Attorneys At least one for each District Court (94) Prosecutes federal criminal cases before the District Courts and Courts of Appeals; represents US gov in civil cases Appointed by the president for 4 -year terms. Key patronage positions Senatorial courtesy applies
III. Jurisdiction of the Federal Courts • Dual system of courts: federal and state courts, reflective of federalism 1. Jurisdiction is the authority of a court to hear a case 2. Federal courts hear cases based on: • Subject matter (federal-question cases): • n Interpretation & application of Constitution, federal statute or treaty n Question of admiralty law Parties involved (diversity cases): n U. S. or its officers n Ambassadors, consuls of foreign gov n States suing another State, resident of another State, a foreign gov or its subjects n Citizen of one State suing another State’s citizen n A U. S. citizen suing a foreign gov or its subjects 3. All cases not heard by the federal courts are heard in States’ courts
Types of Jurisdiction 1. 2. 3. 4. 5. Exclusive Jurisdiction: • Case can only be heard in a federal court Concurrent Jurisdiction: • Case may be heard in either federal or State court Original Jurisdiction: • The court where the case is first heard • District courts only have original jurisdiction Appellate Jurisdiction: • A court that hears the case on appeal from a lower court • The appellate court can uphold, overrule, or modify the decision from the lower court • Courts of Appeals only have appellate jurisdiction Supreme Court can exercise both original and appellate jurisdiction
IV. Getting to Court A. Only those with standing may challenge a law or government action. (Only one who has sustained “injury” may bring a case to court) B. Types of law: 1) Statutory: deals with written statutes (laws) 2) Common: – Based on a system of unwritten law – Unwritten laws are based on precedents. – Judges rely on the principle of stare decisis 3) Criminal: violations of the criminal code 4) Civil: concerns disputes (torts) between two parties, rather than against society – Writ of mandamus, injunctions, class action lawsuits, breach of contract, slander
V. The Supreme Court 1. A. Background 8 associate justices, 1 Chief Justice – Set by Congress 2. Key powers: • Judicial review (Marbury) • Power to interpret broadly-worded laws of Congress and the Constitution • Power to overrule earlier S. C. decisions B. Jurisdiction 1. Original, in cases involving: – – States Ambassadors 2. Appellate, in cases from – – – Courts of Appeals State supreme courts Cases from appellate jurisdiction are far more numerous than from original jurisdiction
C. How Cases Reach the Supreme Court 1. 2. 3. 4. 5. SCOTUS controls its own docket Thousands of requests are made, relatively few are granted Rule of 4: In order for the Court to hear a case, 4 justices must agree to do so. Cases are appealed from the lower federal courts or highest state (supreme) court. A party files a petition for a writ of certiorari, which are screened by clerks and reviewed by justices on the rule of 4 When justices accept a case, they can ask for more information and oral arguments, or decide case based on attorneys’ briefs. Some decisions are rendered with a per curiam opinion.
6. Types of Opinions: n Unanimous n Majority opinion is the Court’s decision n Creates a precedent for future cases (stare decisis) n Dissenting opinion n May be used in the future to create new precedent n Concurring opinions are those that agree with the majority, but add points to it
VI. The Power of the Federal Courts • A. The Power to Make Policy: 1. By interpretation 2. By extending the reach of existing law 3. By designing remedies Measures of power: 1. Judicial review 2. not following stare decisis (precedent) 3. Determining political questions (Baker v Carr, 1962) 4. Kinds of remedies imposed
• A. 1. 2. Only in the US do judges play such a large role in policy-making through the power of judicial review: the right to determine the constitutionality of acts of government Two views of interpreting the Constitution: Judicial activism: liberal constructionist philosophy that the courts should look at underlying principles of the Constitution and should take an active role in solving society’s problems. Judicial restraint: strict constructionist philosophy that the courts should follow the original intent of the Founders – should only judge and apply those rules that are stated or clearly implied by the wording of the Constitution. Philosophy that the courts should allow the states and the other two branches of the federal government to solve social, economic, and political problems. – – – • Federal courts should act only in those situations where there are clear constitutional questions. They should otherwise defer to elected lawmakers. Courts should merely interpret the law rather than make law. Suggests that courts should follow original intent of Founders: decide cases on basis of what the Founders wanted. (Originalism) Does NOT mean political liberals are liberal constructionists and political conservatives are strict constructionists.
Historical Developments 1. 2. 3. – – 4. 5. – – – 6. 20 th Century (before 1937): liberals complained about the conservative Court being too activist when it struck down reform-minded laws (minimum wage, banning child labor…) FDR’s “court packing” attempt (1937) forced the Court to accept New Deal legislation Now, conservatives complained about the liberal Court being too activist, especially the Warren Court (1954 -69). Rights of the accused (Miranda v AZ, 1966) Civil Rights (Brown v Board, 1954) Civil Liberties (Engel v. Vitale, 1962) Political Issues (Baker v. Carr, 1962) The Burger Court (1969 -86) was less activist than the Warren Court, but still upset conservatives with decisions like Roe v. Wade, 1973 and UC Regents v. Bakke, 1978 Full circle: Rehnquist Court (1986 -2005) was accused by liberals of being too activist when it overturned liberal precedents: US v. Lopez, 1995 Bush v. Gore, 2000 U. S. v. Oakland Cannabis Buyers Cooperative, 2001 Similar views about Roberts Court (2005 -present): DC v. Heller, 2008
1. 2. 3. 4. 5. 6. 7. • • • Checks on Judicial Power Courts can make decisions, but cannot enforce them. State and local governments may not carry it out. Presidential appointment of judges Stare decisis Existing laws The Constitution Public opinion Congress: Senate confirmation of judges Impeachment and removal Increasing the number of judges and courts Passing Constitutional amendments-Court cannot strike down something as unconstitutional if it’s in the Constitution. Legislation Determining jurisdiction of the courts
UNIT 5: PUBLIC POLICY 10 -20%
Policy-Making Process A. B. C. D. E. F. Setting the agenda Identifying policy problems: Publicized demands for government action Formulating policy proposals: through political channels by policyplanning organizations, interest groups, government bureaucracies, state legislatures, and the president and Congress. Legitimizing public policy: actions of government officials, both elected and appointed in all branches and at all levels. This includes executive orders, budgets, laws and appropriations, rules and regulations, and decisions and interpretations that have the effect of setting policy directions. Implementing public policy: through the activities of public bureaucracies Evaluating public policy: by government agencies, by outside consultants, by interest groups, by the mass media, and by the public.
Economic Policy 1. 2. 3. 4. Deficit Spending: spending more money than gov collects Gov must borrow to cover the deficit by selling Treasury bonds or other forms of gov debt to Americans and foreigners National debt: combined amount of all deficits Interest on the national debt: 3 rd highest item in the national budget
Economic Theories: A. Monetarism (Milton Friedman) 1. The money supply (monetary policy) is the most important for determining the health of the nation 2. The Fed can tighten up money supply (through adjusting interest rates) to reduce inflation, or it can loosen money supply to stimulate the economy B. Keynesianism (John Maynard Keynes) 1. 2. • • New Deal influenced by Keynes Government could manipulate the economic health of the economy through its level of spending: When demand is too low, gov spends When demand is too high, gov should increase taxes C. Planning (John Kenneth Galbraith) 1. The free market is too unpredictable to ensure economic efficiency; thus the gov should control it 2. Wage and price controls
D. Supply-side economics (Arthur Laffer) E. Reaganomics 1. Less government interference 1. Combination of monetarism, supply-side tax and lower taxes cuts, and domestic budget cutting 2. cuts in taxes will produce 2. Increased military strength and spending business investment that will compensate for the loss of tax Four major policy objectives: (1) reduce the growth of government spending, revenue (2) reduce the marginal tax rates on income from • Tax rates will be lower, but both labor and capital, business will boom, (3) reduce regulation, unemployment will decline, (4) reduce inflation by controlling the growth of incomes will go up, and more the money supply. money will go to the Treasury • These major policy changes were expected to increase saving and investment, increase • Most associated with Reagan economic growth, balance the budget, restore healthy financial markets, and reduce inflation and interest rates.
Economic Policy Making Fragmented-not under President’s full control: A. CEA (Alan Krueger) ▫ Part of EOP ▫ Responsible forecasting economic trends ▫ Prepares annual economic report for the president; gives him objective economic advice B. OMB (Director Sylvia Mathews Burwell) ▫ Largest component of EOP ▫ Assists the president in the preparation of the federal budget ▫ Implements and enforces president’s policies across the Executive Branch C. Secretary of the Treasury (Jack Lew) ▫ ▫ ▫ Part of the president’s cabinet Promoting economic prosperity and financial security, recommends tax changes Advises president on economic and financial issues
D. ▫ ▫ ▫ E. ▫ ▫ The Fed (Federal Reserve Board) (Bank for banks) Board of Governors (7) appointed by President, confirmed by Senate, 14 year terms, cannot be reappointed, may not be removed for policy decisions Fed Reserve Chair (Bernanke) appointed by President, confirmed by Senate, 4 year terms, can be reappointed (reconfirmed 2010) Sets monetary policy (regulation of the money supply by the Federal Reserve Board) by controlling the amount of money and bank deposits and sets interest rates Supervises and regulates banks and financial institutions Independent regulatory commission Congress sets nation’s fiscal policy: Taxing and spending; budget matters Fiscal policy is conducted by Congress and the President
The Budget A. The Executive Branch 1. 2. 3. Agencies prepare their estimates of budget needs and present them to the OMB. Amount requested is typically based on the amount granted the previous year OMB reviews requests and makes recommendations to the President reviews OMB recommendations and submits budget to Congress (February) B. Congress 1. 2. 3. 4. 5. CBO provides an independent analysis of the President’s budget (a check on OMB) Budget committees in House and Senate study proposal and submits a budget resolution to its house, Appropriations committees in both House and Senate set spending ceilings, House Ways and Means considers budget’s tax proposals, Senate Finance studies fiscal impact of budget Input and lobbying from agencies Majority vote in both houses Gov Accountability Office (GAO), watchdog agency that ensures money is spent as prescribed by law
C. Political Influences D. Presidential Action 1. 2. 3. 4. 1. President signs or vetoes entire spending and taxing bills (no line item veto) 2. Congress can override a veto with 2/3 vote in both houses. Political party differences Interest group/PAC influence Iron triangles Public opinion
Sources of Federal Revenue Historically: tariffs and excise taxes • passage of 16 th Amendment in 1913 created income tax Presently: individual income taxes (progressive structure) make up 45% of all federal revenue • Social insurance (FICA payroll taxesregressive structure): 36% • Corporate taxes: 12% • Excise taxes: 3% • Other: 4% Federal Spending 1. 2. 3. 4. 5. Federal spending is over $3 tn Transfer payments (direct benefit payments to individuals, Social Security, Medicare, Medicaid…): 54% (nondiscretionary/mandatory) National defense: 26% (discretionary) Net interest: 9% (nondiscretionary/mandatory) Nondefense discretionary: 11%
Types of Taxes (Bases and Structures) There are 3 types of taxes in the US 1. Proportional Tax: (flat tax) the same % of tax on everyone, regardless of income 2. Progressive Tax: (income tax) a higher % is paid by those that make higher incomes 3. Regressive Tax: (sales tax) % of income paid in taxes decreases as income increases
2 -Types of federal spending: 1. ▫ ▫ ▫ 2. ▫ ▫ ▫ Mandatory Spending: 2/3 of federal budget Spending authorized by law without annual Congressional approval, some have built in COLA Social Security, Medicare, Medicaid, food stamps, retirement benefits for federal workers & veterans, unemployment insurance Entitlement Programs (“uncontrollables”): Federal money that is ▫ 1) provided to those that meet established eligibility requirements, and ▫ 2) is automatically spent each year without congressional review Discretionary Spending 1/3 of budget Spending must receive annual Congressional authorization National Defense, education, the environment, public parks, scientific research, housing, transportation, disaster relief, student loans, law enforcement, etc.
Reducing Spending 1. 1985 Gramm-Rudman-Hollings Act (1985) ▫ 2. 3. 4. Established maximum deficit amounts, if statutory limits went above, the President was required to issue a sequester order to reduce all non-exempt spending to a uniform percentage 1990: BEA replaced Gramm. Congress and Bush 41 agreed on 1) caps on discretionary spending, and 2) a pay-as-you-go (paygo) proposal that would allow Congress to increase spending only if that increase was offset by higher taxes and/or cuts. Failure of Congress to pass Balanced Budget Amendment Reduction of deficits under Clinton and development of surpluses led to political disputes over what to do with them. Republicans favored tax cuts, Democrats wanted to apply them to Social Security.
Social Welfare Policy Social Security (1935) 1. 2. 3. • • • Financed by FICA payroll tax 6. 2% of first $113, 500 of earnings; not means tested Demographic changes: in 1935 there were 16 people working for every recipient; today there are just 3, by 2020 only 2. PLUS, increasing life expectancy rates. Proposed changes: Increasing age from 65 -67, then 70 Adopting means testing Increase wage cap (from $113, 500  to $150, 000) Reduce benefits Privatize part of SS Raise payroll taxes (from 6. 2% to 6. 7%)
Healthcare 1. 2. • • • 3. Most people have private health care paid for by insurance Problems: Rising costs Uninsured (working poor and unemployed cannot afford) Lack of flexibility and choice with HMOs Fed gov passed Medicare (age criteria) (elderly and disabled) and Medicaid (means tested) (poor) in 1965 • Medicare financed by payroll tax of 1. 45%(not capped), not means tested provisions: A) hospital insurance, B) medical insurance, D) prescription-drug coverage (passed during W’s 1 st term) Ruled by SCOTUS as Constitutional in 2012 based on Congress’ power to tax. Affordable Care Act, 2010 Some provisions: • Health insurance exchange operated by states • Tax credits for middle & low income families to subsidize costs • Expansion of Medicaid through states • Extends coverage for youth – up to 26 stay on parent’s plans
Welfare (AFDC to TANF) • Means tested program • Transfer program • AFDC abolished in 1996 and replaced with TANF: 1. Funded by federal block grants and matching state funds (federalism) 2. Limited payments to no more than 5 years 3. Recipients must work within 2 years of applying 4. Required food stamp recipients to work 5. Welfare rolls declined by 60% between 1996 -2004
Education Policy 1. 2. • • • ▫ ▫ federalism: largely run by state and local gov (10 th Amendment) but fed gov provides funds through categorical grants (with strings) to states Important legislation: Head Start: 1964, for disadvantaged preschool-aged children ESEA, 1965: funding for disadvantaged children Title IX, 1972: banned sex discrimination in federally funded education programs IDEA, 1975: makes funds available to states that adopt the minimum policies regarding special education NCLB, 2001: tied federal funds to criteria Adopt subject matter standards and test all students (grade 3 -8) Identify low-performing schools based on those tests and require improvement plans Allow parents is such schools that do not improve to transfer ALL students must be proficient in state standards by 2014
Social Welfare Subsidies: Not means tested: Social Security, Medicare, Unemployment Insurance Means tested: TANF, Medicaid, Food Stamps, Supplemental Security Income
Foreign Policy A. B. Foreign policy powers are shared by the President and Congress. President, though, is primarily responsible foreign policy and has extensive support in the executive branch: • Secretary of State: Cabinet official responsible foreign policy • Other cabinet officials: since foreign policy affects domestic policy, Commerce, Treasury, Defense, Agriculture also have a role • NSC: coordinates executive agencies that affect national security ▫ Members: President, VP, DNI, Sec State, Sec Def, CIA head, NSA, Chair Joint Chiefs, AG ▫ NSA has emerged as key player, who sometimes has more influence than Sec State • Homeland Security: coordinates anti-terrorism efforts • State Dept. and Foreign Service: day-to-day management of foreign policy • NSA: cryptology and surveillance organization • CIA
Constitutional (Formal) Powers A. President 1. commander-in-chief of armed forces 2. Appoints ambassadors 3. Makes treaties How can the President assert authority? INFORMAL powers 1. Can send troops abroad without congressional declaration of war 2. Use of executive agreements 3. Recess appointments B. Congress 1. Must authorize and appropriate funds forces 2. Appointments confirmed by Senate (simple majority) 3. Must ratify treaties by 2/3 supermajority of Senate 4. Sole power to regulate commerce 5. Sole power to declare war Generally, Congress defers to the president on foreign policy, while Congress holds more power to check the president’s domestic policy agenda
Environmental Policy Environmental policy is affected by federalism: centralization/decentralization tension b/w national and state gov. (Latter have incentive to reduce regulations for fear that businesses will relocate to other states, while former may want a uniform policy). • Key issue: to what extent and cost should the environment be protected. • Competing interests: ▫ Public wants a clean environment ▫ Business is concerned about cost and extent of regulation ▫ Workers are concerned that excessive regulation may lead to job losses •
Key Environmental Legislation 1. 2. 3. 4. 5. 6. 7. NEPA (National Environmental Policy Act) of 1969: required EIRs before major construction projects began. Air Quality Act of 1967; Clean Air Acts (from 1960 s-90 s): established emissions standards for cars and factories. Clean Water Acts (1970 s-80 s) EPA, 1970 Endangered Species Act, 1973 CAFÉ standards established in 1975: set standards for average m. p. g. of manufacturer’s cars Superfund, 1980: clean up toxic waste dumps
UNIT 6 CIVIL RIGHTS AND CIVIL LIBERTIES 5 -15%
Civil Liberties and Civil Rights Sources of Protection 1. The Constitution • No ex post facto laws or bills of attainder, habeas corpus 2. Bill of Rights, and subsequent amendments – Guarantee of rights and liberties 3. Legislation – Civil Rights Acts of 1964 and 1968, Voting Rights Act of 1965 4. Court decisions – Brown v. Board, Roe v. Wade 5. State constitutions
Limits of Government Nature of Civil Liberties: 1. Not absolute: they may be exercised so long as they do not infringe on the rights of others 2. Balancing test: courts balance individual rights and liberties with society’s need for order and stability To whom are they guaranteed? 1. Most rights and liberties are granted to all in the U. S. regardless of citizenship 2. Exceptions: noncitizens may not vote, serve on juries, stay in the U. S. unconditionally, or hold public office or certain jobs
Federalism 1) Bill of Rights were intended as restrictions on the national government, not the States (Barron v. Baltimore, 1833) 2) 14 th Amendment modified the Constitution • Due Process Clause means that no State can deny to any person basic rights and liberties. This clause bans states from denying life, liberty, or property without due process of law. Freedom of speech, for example, is a “liberty, ” therefore states cannot deny freedom of speech without due process of law. • Protections set out in the Bill of Rights are also covered by the 14 th Amendment and so apply against States (“process of incorporation”) • The “selective incorporation” view would apply only some of these provisions, and would do so on a gradual, case-by-case basis over time. • Gitlow v. NY, 1922
3) Selective Incorporation Subsequent cases nationalized the following parts of the BOR on a selective incorporation basis: Assembly (1 st) Petition (1 st) Religion (1 st) Right to bear arms (2 nd) (Mc. Donald v. Chicago, 2010) Search and seizure protections (4 th) Self-incrimination (5 th) Double jeopardy (5 th) Right to counsel (implied by 5 th – Miranda; stated in 6 th) Right to bring witnesses (6 th) Right to confront witnesses (6 th) Protection against cruel and unusual punishment (8 th) Which rights must states uphold? The Palko test (Palko v. CT, 1937) tells us that any right that is so important that liberty would not exist without it must be upheld by states. All provisions of the BOR except Amendments 3, 7, and 10 as well as the grand jury requirement of the 5 th have been nationalized
4) 9 th Amendment • • • Declares there are rights beyond those expressed in the Constitution (the “enumerated” rights) Examples of “other” rights protected by the 9 th Amendment: Privacy (Griswold v CT, 1965) Travel Freedom of Association-Boy Scouts of America v. Dale, 2000 Homosexual conduct (Lawrence v. TX, 2003: using the right of privacy, this decision struck down a TX law that banned sodomy.
The 1 st Amendment: Free Expression Guaranteed by the 1 st and 14 th Amendments for spoken, written, and other forms of communication to ensure open public debate of ideas, especially unpopular views
The 1 st Amendment: Free Expression Guaranteed by the 1 st and 14 th Amendments for spoken, written, and other forms of communication to ensure open public debate of ideas, especially unpopular views 1. Bad tendency doctrine ◦ State legislatures, not the courts, should generally determine when speech should be limited 2. Clear and present danger doctrine. ◦ Schenck v. U. S. , 1919. Case involved a man who was urging others to avoid the draft during WWI. Upheld, however: Speech can be suppressed only if there is an imminent threat to society (fire in a crowded theater). 3. Preferred position doctrine. ◦ Free speech is of utmost importance and should thus occupy a “preferred position” above other values; gov should virtually never restrict it.
Non-protected speech Libel and slander (NY Times v. Sullivan, 1968) Obscenity (Miller v. CA, 1973) “fighting words: ” speech that leads to violence can be restricted. 4. Commercial speech is subjected to more regulation than political speech 5. Sedition: 1. 2. 3. ◦ Smith Act, 1940: banned advocacy of overthrowing the government (upheld: Dennis v. U. S. , 1951) SCOTUS narrowed the definition even further when it stated that sedition was prohibited only when: ◦ There is imminent danger of an overthrow, and People are actually urged to do something rather than merely believe something (Yates v. U. S. , 1957)
Protected Speech Prior Restraint: Blocking speech before it is given (or published) 1. ◦ ◦ Presumed by courts to be unconstitutional In the Pentagon Papers case, the court refused to impose prior restraint: 2. Clarity: Speech restrictions cannot be written in too vague a manner, they must be clear to the average person 3. Least-restrictive means: Laws cannot restrict speech if there are other means to handle the problem. 4. Centrality of political speech: given special protection because of its importance in a democracy ◦ Mc. Cain-Feingold 2002 (BCRA) placed restrictions on electioneering communications ◦ Essentially overturned by Citizens United v. FEC, 2010, which removed restrictions on corporations and unions to give money to campaigns, “political expression” protected by 1 st and 14 th A. Symbolic speech • ◦ 1. 2. Between speech and action. Generally protected. U. S. v. O’Brien, 1968: Texas v. Johnson, 1989 Snyder v. Phelps, 2010 Tinker v. Des Moines, 1969: U. S. v. Eichman, 1990
Freedom of the Press 1. Right of access: Generally granted to the press 2. “sunshine laws” require agencies to open their meetings to the public and press 3. Freedom of Information Act (1966) allows public access to government files. 4. Electronic FOIA (1996) requires agencies to put files online. 5. Executive privilege ◦ U. S. v. Nixon, 1974: 6. Shield laws: 7. Defamation: NY Times v. Sullivan 8. 9. Obscenity: Miller set 3 -part test: 1) Community standards must be violated 2) State obscenity laws must be violated 3) Material must lack serious literary, artistic, or political value. Student press: Hazelwood v. Kuhlmeier, 1988
Freedom of Assembly and Petition Freedom of Petition 1. Right to petition the gov for redress of grievances 2. Constitutional justification for lobbying 3. Also provides constitutional basis for freedom of association (2 types): Political association (parties, interest groups, and PACs) Personal association (private clubs) Boy Scouts v. Dale, 2000 1. Limited by the Hatch Act for federal employees 2. Limited by restrictions on campaign contributions, but Court struck down limits on spending in Buckley v. Valeo and on contributions in Citizens United v. FEC Freedom of Assembly Government may regulate the time, place, and manner of assemblies Rules must be specific, neutral, and equitably enforced Applies to public, not private, places
Freedom of Religion Protected by the 1 st and 14 th Amendments: 1. Prohibits an establishment of religion (Establishment Clause) 2. Any arbitrary interference by the government in the “free exercise of religion” (Free Exercise Clause)
The Establishment Clause. Basic meaning: Government may not establish an official religion. Separation of church & state. Equal Access Act of 1984 Release Time – Any public school that receives federal funds must allow student 1. Zorach v. Clauson, 1952 religious groups to meet in school Prayers and the Bible as other clubs • Engel v. Vitale, 1962 – Westside Community Schools v. • Abbington v. Schempp, 1963 Mergens, 1990 Aid to Parochial Schools • Epperson v. Arkansas, 1968 – States give aid to private schools for • Stone v. Graham, 1980 secular purposes • Wallace v. Jaffree, 1985 – Reasoning: • Lee v. Weisman, 1992 1. Schools enroll large numbers of students • Santa Fe School District v. Doe, 2000 2. Double burden of parents financially 3. Schools devote time to secular subjects (Zelman v. Simmons-Harris, 2002)
The Lemon Test 1. Court uses to determine the legitimacy of aid (Lemon v. Kurtzman, 1971) 1. Purpose must be secular 2. It may neither advance nor inhibit religion 3. It must avoid “excessive entanglement of government and religion” G. Other Establishment Clause Cases: 1. Seasonal displays cannot endorse Christian doctrine, but can include religious objects if non-religious objects are featured 2. Prayer in Congress (Marsh v. Chambers)
Free Exercise Clause 1. 2. 3. Guarantees each person the right to believe whatever they choose in matters of religion Does not give the right to violate laws, offend public morals, or threaten the health, safety, or welfare of the community Distinction between belief and action Religious Practices that have been restricted: 1. Reynolds v. U. S. , 1879 2. Jacobson v. Massachusetts, 1905 (vaccination laws) 3. Welsh v. U. S. , 1970 (draft) 4. U. S. v. Lee, 1982 5. Oregon v. Smith, 1990 Religious practices that have been permitted: 1. West VA Board of Ed v. Barnette, 1943 2. Wisconsin v. Yoder, 1972 3. Church of Lukumi Babalu Aye v. Hialeah, 1993
Due Process of Law I. Meaning of Due Process Substantive vs. Procedural Due Process 1. 2 Clauses: 1. Substantive DP: the substance and content of the laws themselves must be fair (the “what”) 2. Procedural DP: the procedures followed in upholding the laws must be fairly and consistently carried out (the “how”) 3. Rochin v. CA, 1952 4. Pierce v. Society of Sisters, 1925 – – 5 th protects against violations from the Federal Government cannot deprive any person of “life, liberty, or property, without due process of law. ” 14 th protects against violations from the States and their local governments 2. The government must act fairly and in accordance with established rules.
4 th Amendment: Searches and Seizures A. Police have no right to search for or seize evidence or people unless they have a proper warrant obtained with probable cause B. Arrests (“seizures”) Police can arrest a person in a public place without a warrant with probable cause to believe the person has or is about to commit a crime Illinois v. Wardlow, 2000 C. Searches : 1. Automobile Exception Michigan v. Sitz, 1990 ◦ DUI checkpoints California v. Acevedo, 1991 Wyoming v. Houghton, 1999 Wiretapping: only legal if a warrant has been issued ◦ FISA Court ◦ Patriot Act 2002 SEARCH CASES: Florida v. J. L. , 2000 ◦ Anonymous tip Minnesota v. Carter, 1999 ◦ Evidence in plain view California v. Greenwood, 1988 ◦ No reasonable expectation of privacy Michigan v. Tyler, 1978 ◦ Emergency situation
D. Exclusionary Rule Evidence gained illegally cannot be used against a person in court CASES: Weeks v. U. S. , 1914 (Federal Gov. ) Mapp v. Ohio, 1961 (State Gov. ) Exceptions: “Inevitable discovery” (Nix v. Williams, 1984 “good faith rule” (U. S. v. Leon, 1984 and Arizona v. Evans, 1995) “honest mistakes” (Maryland v. Garrison, 1987) 1. 2. Critics claim that it lets criminals “off the hook” on technicalities. They ask why society should pay for the misconduct of a few police officers. Supporters claim that it discourages police misconduct
F. 5 th Amendment I. Grand Jury 2. Double Jeopardy • In federal cases, the Constitution provides for a grand jury: in order to charge a person with a serious federal crime, the federal prosecutor must obtain an indictment (not required by states – not incorporated) • The 5 th Amendment guarantees against being charged twice for the same crime • If both a State and a federal crime are committed simultaneously, one may be tried in both State and federal courts • In the case of a mistrial or an appeal, there may be another trial
3. Self-Incrimination • The 5 th also guarantees against self-incrimination • A person may not be forced to testify against themselves or their spouse • The Miranda Rule states that police must inform a person of their rights before being questioned (Miranda v. Arizona, 1966) • The burden of proof is always on the prosecution 4. Witnesses: right to bring witnesses on your own behalf, and confront witnesses
5. 5 th Amendment: Eminent Domain Property rights vs. public welfare States MAY impose limits on property rights: ◦ States may exercise police powers to protect public health, safety, welfare, and morals ◦ States may exercise right of eminent domain: Kelo v. City of New London, 2005
G. The 6 th Amendment 1. Speedy and Public Trial 2. Trial by Jury • In most cases, trials must be within 100 days of arrest • Right of a public trial belongs to the defendant, not the media, and coverage of the trial must not infringe on the defendant’s rights • TV cameras are thus banned from all federal courts • Guaranteed in criminal cases (though most cases are disposed of by plea bargaining) • Guaranteed in civil cases worth more than $20 (7 th Amendment)
3. Right to Counsel • Right to be told the charges, to confront witnesses against them, to compel witnesses to testify, and to have assistance of counsel • CASES: • Gideon v. Wainwright, 1963 • Escobedo v. Illinois, 1964
H. The 8 th Amendment I. Bail and Preventative Detention • Bail or fine must be reasonable in relation to the seriousness of the crime • Justification for bail: • A person should not be jailed until guilt is established • A defendant can better prepare for their trial outside of jail • 1984 Preventative Detention Congressional Law: – States a person can be held without bail if the Court believes the person will not appear or if there is reason to believe s/he will commit another serious crime 2. Cruel and Unusual Punishment: Capital Punishment • Is Constitutional, but certain methods are banned • Ewing v. CA, 2003: 3 -strikes law (CA Prop 184 1994) • CA Prop 36 (2012) modified 3 strikes law (felony conviction must be for “serious or violent” crimes
Death Penalty Cases: • • • Furman v. Georgia, 1972 (struck down D. P. laws) Gregg v. Georgia, 1976 (created a 2 step process: a separate trial to determine guilt or innocence; a second hearing to determine punishment) Coker v. Georgia, 1977 (crimes involving death of victim) Roberts v. Louisiana, 1977 (juries must consider mitigating circumstances) Atkins v. Virginia, 2002 (Is the execution of mentally retarded persons prohibited by the 8 th Amendment? ) Ring v. Arizona, 2002 (only decided by jury, not by judge) • • Roper v. Simmons, 2005 (Does the execution of minors violate the prohibition of "cruel and unusual punishment" found in the 8 th & 14 th Amendment? ) Miller v. Alabama, 2011 & Jackson v. Hobbs, 2011 (are mandatory lifewithout-parole sentences for all children 17 or younger convicted of homicide unconstitutional? )
A. B. C. D. E. F. • I. Struggle for Equal Rights: Blacks Dred Scott decision, 1857, denied the right of Scott to sue-slaves were not citizens. Civil War Amendments: 13, 14, 15 -to protect blacks against state governments ◦ 5 th & 14 th prohibit government from discriminating, but what about protection from private acts? ◦ 13 th has been broadly interpreted to prohibit the “badges” of slavery, Commerce Clause, power to tax and spend Jim Crow laws; Plessy v. Ferguson, 1896 “separate but equal” Barriers to de jure segregation: use of the courts-Brown v. Board, 1954 Civil disobedience in 1950 s-60 s, violent demonstrations 1960 s Civil Rights Act of 1964: A. Title II bans discrimination in places of public accommodation on the basis of race, color, national origin, or religion. Based upon Congress’ power to regulate interstate commerce. B. Title VII: prohibits employment discrimination (sex & race), required federal contractors to adopt affirmative action, enforced by EEOC Civil Rights Act of 1968 (Fair Housing Act)
H. Voting Rights Act of 1965 15 th A. banned voting discrimination, but states found ways: white primary, poll tax, literacy tests, grandfather clause. Remedies: 1. Banned literacy tests 2. Allowed federal officials to register voters and ensure they could vote, to count ballots 3. Amendments require states to include ballots in other languages 4. States with a history of voting discrimination must clear w/ Justice any changes in voting practices (“preclearance”) 5. Resulted in huge increases in black turnout, black elected officials, and voter power SCOTUS hears Section 5 (preclearance) challenge: Shelby County v. Holder, 2012
II. Struggle for Equal Rights: Women A. B. A. First Wave: Seneca Falls (1848), 19 th Amendment (1920) 2 nd Wave: 1960 -present The Feminine Mystique, Betty Friedan (1963) NOW, Emily’s List and other women’s groups Legislation: ◦ Equal Pay Act of 1963, Lilly Ledbetter Fair Pay Act of 2009 ◦ Civil Rights Act of 1964, Title VII ◦ ERA’s failure ◦ Title IX of Education Act of 1972 Cases: (“Reasonableness” [heightened scrutiny]Test) ◦ Reed v. Reed, 1971 ◦ Roe v. Wade, 1973 Electoral Success: 1992 -Year of the Woman: many women elected to Congress A. Rise of women representatives in Congress, on Court, as constituent voting bloc
III. Equal Protection Under the Law Discrimination ◦ Classification/treating groups differently usually on ethnic or racial lines ◦ Some is inevitable (age requirements, income tax) ◦ Issue: are such differences “reasonable” ◦ 14 th Amendment (1868) Equal Protection Clause bans the states from unreasonable discrimination B. Court tests: 1. Rational basis test: discrimination is constitutional if it has a reasonable relationship to a broader purpose of gov Cannot be used if a case involves a suspect class, an almostsuspect class, or a fundamental right 2. strict scrutiny: Suspect classifications test Suspect class: a class that has historically suffered unequal treatment on the basis of race or national origin Discrimination is subject to strict scrutiny: there must be a compelling purpose for the discrimination to be constitutional A.
Affirmative Action ◦ ◦ 3. ◦ ◦ ◦ Strict Scrutiny cases: UC Regents v. Bakke, 1978, Gratz v. Bollinger, 2003, Grutter v. Bollinger, 2003; CA Prop 209 Fisher v. University of Texas, 2012 Racial gerrymandering banned: Shaw v. Reno; Miller v. Johnson Reasonableness Test (“heightened scrutiny”): For quasi-suspect class: sex Not quite as high as for race Discriminatory laws must be reasonable, not arbitrary, and bear some relation to gov. objective
3. Fundamental Rights Test Those which are explicitly stated in the Constitution, and implied, such as: travel, political association, privacy Abortion cases: ◦ Roe v. Wade, 1973: based on right to privacy implied in the Bill of Rights (Griswold v. CT, 1965) ◦ Webster v. Reproductive Health Services, 1989 ◦ Planned Parenthood v. Casey, 1992 ◦ Gonzales v. Carhart, 2007 Voting: ◦ Bush v. Gore, 2000 Same-sex marriage: ◦ Nine states allow it (MA, CT, IA, VT, NH, ME, MD, NY, WA), and D. C. ◦ DOMA (1996); Obama (2011) DOJ will no longer defend (14 th) ◦ Hollingsworth v. Perry, 2012 Gay rights: ◦ Lawrence v. TX, 2003 ◦ Repeal of Don’t Ask, Don’t Tell
IV: Struggle for Equal Rights-Other Groups A. For Hispanics: Key issues: Bilingualism (Lau v. Nichols, 1974: schools must take active steps to help non. English speaking students) States must now provide bilingual ballots for areas with a high concentration of non. English speakers Immigration Obama EO “Dream Act” Electoral politics: shift in voting to Democrats from 2008 and 2012 (71%) B. For Asians: Key Issues: Immigration restriction in the past Internment, Korematsu v. U. S. 1944; reparations “reverse discrimination” in college admissions “model minority” C. Age/Disability: Age Discrimination in Employment Act, 1967: bans age discrimination for jobs unless related to performance ADA, 1990: bans job and access to facilities discrimination if “reasonable accommodation” can be made
V. Citizenship A. Methods of Acquisition: 1. Birth Jus soli ◦ All born in the U. S. , regardless of parentage, are citizens as per 14 th A. Jus sanguinis ◦ Anyone born to U. S. citizens living overseas is a citizen ◦ Possibility of dual citizenship 2. Naturalization: individual or collective B. Methods of losing: 1. Expatriation 2. Denaturalization
C. Aliens 1. 2. Types: Resident Nonresident Illegal Enemy Refugee Rights: mostly the same as citizens with some exceptions: Suffrage Serving on juries Holding certain jobs (teachers, police officers) Unconditionally staying in U. S. D. Entry into U. S. Current law allows ~700, 000 to be legally admitted each year Based on preference system: ◦ Relatives in U. S. ◦ Needed job skills ◦ “diversity exceptions” for Europeans Political refugees (~100, 000) allowed above 700, 000
E. Simpson-Mazzoli Bill of 1986: F. Sources of Immigration: Provisions for illegal aliens: Amnesty for those here before 1982 Fines for employers who knowingly hire illegal workers Certain number of aliens allowed to enter each year as temporary farm workers Pre-1880: primarily Northern and Western Europe 1880 -1920: primarily from Southern and Eastern Europe 1924: National Origins Act-set a nation-by-nation quota system that gave large quotas to N. and W. European nations, but smaller ones to S. and E. Europe and Asia 1965: National Origins Act repealed; replaced with preference system ◦ Most immigrants now from Latin America and Asia