Venice Commission - Report on Bicameralism
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1.Has the country always had a bicameral parliamentary (or congressional) system? If not, from when did the country adopt a bicameral system? Is there a public debate about keeping bicameralism or moving to a unicameral system? Why? What are the terms of the debate? What is the public perception of the usefulness and acceptability (legitimacy) of the second chamber?
Under the 1777 Articles of Confederation, the Continental Congress consisted of a unicameral house. However, the founders adopted a bicameral legislature at the Constitutional Convention (1787) and that system is enshrined in Article 1, Section 1 of the U.S. Constitution. By providing a national legislature comprised of two houses, the founders sought to further reinforce a separation of powers. The Great Compromise, one of the critical decisions leading to the Convention’s successful completion, provided for a House of Representatives apportioned on population, and a Senate in which the states were equally represented. Bicameralism thus enabled a composite National and Federal Government, but it also provided for a further separation and diffusion of powers.
2.What is the population of the country? What is its size?
- U.S. Population: 334,638,807 - U.S. Size: 9.834 million km²
3.What form of state and form of government has the country? Please provide details with reference to relevant constitutional provisions. a) Unitarian or federal/regional/other form of decentralization; b) Parliamentary, presidential, semi-presidential or mixed
The U.S. has a federal form of government. The Constitution however does not specifically name or describe the federal system; instead, the system is a byproduct of the structure laid out in the Constitution and the division of power between the national/federal government and the 50 states. There are certain provisions in the Constitution that showcase the push and pull in power between the federal and state powers. For example, the 10th Amendment to the Constitution says that any powers not delegated to the federal government via the Constitution are reserved to the states. In addition, Article VI, Paragraph 2 of the Constitution (commonly referred to as the Supremacy Clause) establishes that the federal Constitution, and federal law more generally, takes precedence over state laws and state constitutions.
4.How many members are in the lower house?
The House of Representatives (i.e., the lower house) has 435 voting members.
5.How many members has the second chamber?
The House of Representatives (i.e., the lower house) has 435 voting members.
6.How are members of the second chamber selected? Please describe: a) direct/indirect/mixed suffrage (if the suffrage is indirect or mixed, who elects or appoints the second chamber? b) territorial or other criteria; i) region/provinces/municipalities/others; ii) professional categories/ethnic/age/other; c) candidates’ independence from/affiliation with political parties; d) in case of indirect election, is there an imperative mandate or a similar practice?
Each of the 50 states has 2 Senators that represent them in Congress (i.e., 100 Senators total), regardless of the state’s population or size. The 17th Amendment to the Constitution requires Senators to be elected by a direct vote of state residents. In addition, it allows the governor or executive authority of each state, if permitted by that state’s legislature, to appoint a senator if a seat becomes vacant, until a general election is held. The only “territorial” restriction for Senatorial candidates is that they must be inhabitants of the states they seek to represent at the time of their election.
7.Age. What is the age limit to elect and be elected or appointed to the second chamber? Does it coincide with the lower chamber? Are there other requirements for election than those for members of lower chambers?
The Constitution sets out three qualifications for Senators: (1) they must be at least 30 years old; (2) they must have been citizens of the U.S. for at least nine years; and (3) they must be inhabitants of the states they seek to represent at the time of their election.
8.Gender. Are there any requirements to achieve gender parity between men and women in the composition of the second chamber or is there any gender quota system? If so, is there a similar requirement or gender quota system for the lower chamber?
There are no Constitutional or other similar requirements to achieve gender parity in either the lower or second chamber.
9.Term of office or tenure. Duration? Does it coincide with lower chamber? Does the second chamber follow the continuity rule (members are not replaced all at once, new elections concern only part of the chamber at a time)? Can the second chamber be dissolved and if yes, who and how exercises its competences in the meantime? Please report any particularity.
Senators serve terms of six years each; the terms are staggered so that approximately one-third of the seats are up for election every two years. There is no constitutional limit to the number of terms a senator may serve. Representatives instead serve two-year terms and are considered for reelection every even year. Both the House and the Senate are permanent chambers, i.e., they cannot be dissolved under any circumstances.
10.Congruence. Is it common for the second chamber to have a similar party composition (majority-minority) to that of the lower chamber?
It is not uncommon for the same party to control both the Senate and House majority. Since 1857, the government has been unified 48 times, 23 under Democratic control and 25 under Republican control.[1] https://history.house.gov/Institution/Presidents-Coinciding/Party-Government/
11.Status. Are there differences between the legal status of members of the two chambers, and if so, what (e.g., immunity, conflict of interest)?
There are no such differences. Usually, discussion revolves around members of Congress (i.e., both houses) inclusively, and makes no distinction between the two chambers. For example, certain privileges and immunities in Article 1, Section 6 of the Constitution (i.e., privilege from arrest and the freedom of debate in Congress) attach to both Senators and Representatives equally.
12.Rules of procedure. How are the rules governing the second chamber established? Are they different from the lower chamber’s and what are the most relevant differences? Are the internal regulations controlled by the constitutional judge?
Under Article 1, Section 5 of the Constitution, each of the chambers sets its own rules of its proceedings. The Constitution also specifies certain other procedural rules including what constitutes a quorum for each chamber, but largely, the House and Senate rules of procedure are set independently, and by the members. Pursuant to that authority, the House of Representatives adopts its rules anew each Congress, ordinarily on the opening day of the first session. The Senate considers itself a continuing body and operates under continuous standing rules that it amends from time to time.
13.Powers/competences: Are the powers and competences the same in the two chambers (symmetrical bicameralism)? If the bicameralism is asymmetrical, what are the powers of the second chamber? Please describe: i) financial; ii) legislative; iii) oversight/control; iv) other specific powers, in particular as regards constitutional reforms, confidence motions, international treaties, etc; v) interim powers (e. g. in case of dissolution of the first chamber).
a) Distinguish issues which are not submitted at all to the second chamber/where the final decision is taken by the first chamber/where the second chamber has a limited veto right etc. Please address these questions the other way round if the second chamber has more powers than the first one; b) Are there specific appointments that must be done solely by the second chamber? If so, the appointment must be done by supermajority/qualified majority/simple majority/absolute majority? c) What kind of parliamentary initiative can the first and second chamber exercise? d) What happens in case of disagreement (in case of asymmetrical as well as of symmetrical bicameralism); how many readings before the final decision? Does a mixed commission meet? e) To which chamber are draft laws and other drafts to be examined by Parliament or the legislature submitted first? f) Is the government responsible to the second chamber (when it is before the first one)? g) Are decisions taken by a joint meeting of both chambers and, in the affirmative, which ones? h) Does the second chamber have a specific role in emergency situations?
The U.S. has an asymmetrical bicameral system – the respective powers of the two chambers vary
14.Is there a form of intergovernmental conference of regions in your country (conference of ministers or presidents of regions, Landers, states members of the federations)? Does it interact with the second chamber? How often does it meet? What is its specific relevance?
There is not any form of intergovernmental conference of regions in your country (conference of ministers or presidents of regions, Landers, states members of the federations.
United States of America
There is currently no public debate on moving to a unicameral system - at least not one that’s dominant and that pertains to the federal government. However, there may be a debate on the matter happening at the state level for certain state legislatures.
There is a lot of debate on and discontent with some of the ancillary features of bicameralism (e.g., that it makes federal-level legislation more difficult to pass) but not with bicameralism as such.
The federal government in turn is a tripartite system made up of the legislative, executive, and judicial branches. The qualifications, powers and duties for each branch are laid out in Articles I, II and III of the U.S. Constitution, respectively.
The Senate (i.e., the second chamber) has 100 voting members.
The Constitution also sets out additional criteria for Senatorial candidates: (1) they must be at least 30 years old and (2) they must have been citizens of the U.S. for at least nine years.
While most U.S. Senators are affiliated with one of the major political parties, it is not a requirement to run for Senator.
The qualification requirements for Senators are more stringent than those for House Representatives. Representatives must 1) be at least 25 years old; (2) have been a citizen of the U.S. for at least seven years; and (3) they must be inhabitants of the states they seek to represent at the time of their election.
The main difference between the House and Senate rules arises as a function of the number of members comprising each chamber. In the House, a structured legislative process and strict adherence to the body’s rules and precedents have resulted from the need to manage how 435 Representatives make decisions. By contrast, the Senate’s smaller membership has brought about a less formal policymaking process and a more flexible approach to the chamber’s standing rules.
If the bicameralism is asymmetrical, what are the powers of the second chamber? Please describe:
i) financial
• All bills that raise money must originate in the House, with Senate review and approval.
ii) legislative
• The Senate has the power to try impeachment cases.
• The Senate has the power to approve, via a simple majority, bills that become laws (after they have already been approved by the House).
iii) oversight/control
iv) other specific powers, in particular as regards constitutional reforms, confidence
motions, international treaties, etc.
• Senate has the sole power to approve, by a two-thirds vote, treaties negotiated by the executive branch.
• In order to amend the Constitution, an amendment may be proposed by a two-thirds vote of both chambers, but there are subsequent ratification requirements that don’t have to do with Congress.
a) The House has several powers assigned exclusively to it, including the power to initiate revenue bills, impeach federal officials, and elect the President in the case of an electoral college tie.
b) Article 2, Section 2 of the Constitution provides that the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for." As such, the Senate has the unique power to confirm certain federal appointments, via a simple majority vote, including all federal judges in the judicial branch and specified officers in cabinet-level departments, independent agencies, the military services, the Foreign Service, and uniformed civilian services, as well as U.S. attorneys and U.S. marshals.
c) What kind of parliamentary initiative can the first and second chamber exercise?
These have all been covered by the previous sections.
d) In order to pass legislation and send it to the President for his or her signature, both the House and the Senate must pass the same bill by majority vote. If the President vetoes a bill, Congress may override the veto by passing the bill again in each chamber with at least two-thirds of each body voting in favor.
e) There is no order in which bills (i.e., draft laws) must be examined, between the two chambers, with the exception of revenue-raising bills that must originate in the House. By tradition, the House also originates appropriation (i.e., spending) bills. However, in general either a Senator or a Representative can sponsor a draft law, which must then go through a review and approval process, and be approved by both chambers (plus the President) in order to become a law.
f) The “government,” which in the U.S. political system would typically be referred to as the “administration,” is not responsible to either chamber in a strict sense – that is, neither chamber can provide for a dissolution or vote of no-confidence, etc. regarding the administration. However, the administration is “responsible” to both chambers insofar as either one can, and often does, hold legislative hearings investigating and examining the policies and actions of the administration.
g) There are joint meetings of both chambers, but these are largely ceremonial. For example, the House and the Senate sometimes meet together to hear an address by a visiting dignitary, such as a foreign leader.
There are also joint resolutions of both chambers, but there is no real difference between a joint resolution and a bill (i.e., it still requires the approval of both chambers in identical form and the president's signature to become law). A joint resolution is generally used for continuing or emergency appropriations.
h) The second chamber has no specific role in emergency situations.