Sources of Constitutional Authority and Proposed House Rule VII, Clause 7(c)

Kenneth R. Thomas
Legislative Attorney

Todd B. Tatelman
Legislative Attorney

A proposed amendment to House Rule VII adds a requirement to all measures introduced in the House of Representatives that are intended to become law. Specifically, proposed Rule VII, clause 7(c) requires that, to be accepted for introduction by the House Clerk, all bills (H.R.) and joint resolutions (H.J.Res.) must provide a document stating “as specifically as practicable the power or powers granted to Congress in the Constitution to enact the bill or joint resolution.” The requirement is mandatory, and the House Clerk appears to have the authority to reject introduction of any bill and/or joint resolution that is not accompanied by such a statement. It should be noted, however, that the rule does not appear to vest the House Clerk with the responsibility or authority to evaluate the substantiality of the required statement. Further, based on the plain language of the proposed rule, such a statement is not required for House Resolutions (H.Res.), proposed amendments to already introduced bills, or other types of measures that may be considered by the House.

The proposed rule appears to adopt a subjective standard for determining what specific constitutional authority exists to enact an introduced bill. In other words, the proposed rule appears to leave each individual Member free to ascertain, by whatever means the Member deems appropriate, his/her own basis for constitutional authority. Should a Member choose to consider the Constitution as interpreted by the Supreme Court through its majority opinions, that appears to be permissible under the rule. Equally permissible sources for Members to rely on could include: their own personal interpretation of the text of the Constitution; documents produced at the Constitutional Convention; sources published contemporaneously with the consideration and ratification of the Constitution by the states; commentaries on the Constitution, academic journal articles, constitutional law treatises, and other publications; the advice of congressional support agencies; the advice of outside groups or think tanks; and any other source that the Member believes to be relevant and authoritative.

The language of the rule requires an articulation of the specific textual constitutional basis for a piece of legislation to be made “as specifically as practicable.” In some cases, however, it may be difficult to fully articulate textual constitutional authorities which can serve as the basis for a proposed bill in a summary form. For instance, as the powers of the federal government often overlap with each other, several constitutional authorities may individually suffice to authorize Congress’s authority over a particular subject matter. Further, case law may have either expanded or limited the apparent reach of these authorizations in ways not apparent from constitutional text. In addition, the “Necessary and Proper Clause” and other implied powers may also support the expansion of congressional authority beyond these explicit authorities in ways not easily discernable from the text.

This report will discuss the constitutional authority for four selected categories of legislation: authorization legislation; appropriations legislation; legislation that places conditions on the availability of federal funds; and, finally, legislation that repeals existing laws and/or programs. The report will then set out a list of general types of legislation in alphabetical order, which will be followed by constitutional provisions that might arguably provide the power to legislate on some aspects of this issue. Please refer to the Table of Contents for a convenient list of the types of legislation so addressed.


Date of Report: December 29, 2010
Number of Pages: 24
Order Number: R41548
Price: $29.95

Follow us on TWITTER at http://www.twitter.com/alertsPHP or #CRSreports

Document available via e-mail as a pdf file or in paper form.
To order, e-mail Penny Hill Press  or call us at 301-253-0881. Provide a Visa, MasterCard, American Express, or Discover card number, expiration date, and name on the card. Indicate whether you want e-mail or postal delivery. Phone orders are preferred and receive priority processing.

A Brief Overview of Rulemaking and Judicial Review

Vanessa K. Burrows
Legislative Attorney

Todd Garvey
Legislative Attorney

The Administrative Procedure Act (APA), which applies to all agencies, provides the general procedures for various types of rulemaking. The APA details the rarely used procedures for formal rules as well as the requirements for informal rulemaking, under which the vast majority of agency rules are issued. This report provides a brief legal overview of the various methods by which agencies may promulgate rules, which include formal rulemaking, informal (notice-andcomment or § 553) rulemaking, hybrid rulemaking, direct final rulemaking, and negotiated rulemaking.

There is substantial case law regarding APA procedures and agency rulemakings. This report concisely mentions the standards that reviewing courts will use to discern whether agency rules have been validly promulgated. Additionally, inquiries regarding the APA often concern agency actions that involve exceptions to APA requirements or additional steps that agencies voluntarily have taken or imposed upon themselves that are not required by the APA. For example, adversely affected parties may contest agency uses of the “good cause” exceptions to the APA procedural requirements to promulgate an interim final rule. Another frequent topic of inquiry is whether an agency guidance document should have been issued as a legislative rule under APA notice-andcomment procedures.

This report does not address the requirements of presidential review of agency rulemaking under Executive Order 12866 or other statutes that may impact particular agency rulemakings, such as the Regulatory Flexibility Act, the National Environmental Policy Act, the Congressional Review Act, or the Unfunded Mandates Reform Act. Additionally, issues of standing, ripeness, finality of agency action, or exhaustion of administrative remedies may arise. As this brief report does not address these potentially applicable statutes or legal issues in depth, the authors may assist with legal questions regarding such requirements or agency-specific rules.


Date of Report: December 22, 2010
Number of Pages: 14
Order Number: R41546
Price: $29.95

Follow us on TWITTER at http://www.twitter.com/alertsPHP or #CRSreports

Document available via e-mail as a pdf file or in paper form.
To order, e-mail Penny Hill Press  or call us at 301-253-0881. Provide a Visa, MasterCard, American Express, or Discover card number, expiration date, and name on the card. Indicate whether you want e-mail or postal delivery. Phone orders are preferred and receive priority processing.

Congressional Careers: Service Tenure and Patterns of Member Service, 1789-2010

Matthew Eric Glassman
Analyst on the Congress

Erin Hemlin
Research Associate

Amber Hope Wilhelm
Graphics Specialist

The average service tenure of members of the Senate and House of Representatives has varied substantially since 1789. This report presents data on member tenure and a historical analysis of tenure trends.

During the 19th century, the average service of Representatives and Senators remained roughly constant, with little or no change over time; average years of service was slightly higher for the first half of the century than during the second. During the late 19th and through the 20th century, the average years of service for Senators steadily increased, from an average of just under five years in the early 1880s to an average of just over 13 years in recent Congresses. Similarly, the average years of service of Representatives increased from just over four years in the first two Congresses of the 20th century to an average of approximately 10 years in the three most recent Congresses.

The average years of service for members of the 111th Congress, as of January 3, 2009, when the Congress convened, was 10.3 years for the House and 13.4 years for the Senate.

Two underlying factors appear to influence variation over time in the average years of service for members of Congresses: the decision of sitting members whether or not to seek election to the next Congress, and the success rate of members who seek election to the next Congress. In addition, short-term variation in average service is affected by the individual service tenures of members who do not return for the following Congress.

Observed increases in the proportion of members seeking re-election and decreases in the proportion of members defeated for re-election conform with previous scholarly assessments of congressional history, which largely conclude that during the early history of Congress, turnover in membership was frequent and resignations were commonplace, and that during the 20th century, congressional careers lengthened as turnover decreased and Congress became more professionalized.

The report also examines two further issues related to member tenure. First, the distribution of member service that underlies the aggregate chamber averages is examined. Although the average service tenure of members has increased, more than half of Representatives and nearly half of Senators in recent Congresses have served eight years or less. Second, the report analyzes historical trends in the percentage of members who have served in both chambers. While only a small and declining proportion of Representatives have historically had previous Senate experience, throughout history a sizeable percentage of Senators have previously served in the House.

For information on the number of freshmen elected to Congress, refer to CRS Report R41283, First-Term Members of the House of Representatives and Senate, 64th – 111th Congresses, by Jennifer E. Manning and R. Eric Petersen.


Date of Report: December 21, 2010
Number of Pages: 16
Order Number: R41545
Price: $29.95

Follow us on TWITTER at http://www.twitter.com/alertsPHP or #CRSreports

Document available via e-mail as a pdf file or in paper form.
To order, e-mail Penny Hill Press  or call us at 301-253-0881. Provide a Visa, MasterCard, American Express, or Discover card number, expiration date, and name on the card. Indicate whether you want e-mail or postal delivery. Phone orders are preferred and receive priority processing.

The State of Campaign Finance Policy: Recent Developments and Issues for Congress

R. Sam Garrett
Analyst in American National Government

Campaign finance policy is arguably at a crossroads. For decades, Congress, regulatory agencies, and courts have emphasized the need to reduce potential corruption by providing public disclosure of information about campaign contributions and expenditures. Preventing corruption and enhancing transparency remain prominent themes in campaign finance policy, but what those goals mean and how they should be accomplished appears to be in flux.

Both minor and major changes have occurred in campaign finance policy since 2002, when Congress last substantially amended campaign finance law via the Bipartisan Campaign Reform Act (BCRA). More recently, the Supreme Court’s 2010 ruling in Citizens United v. Federal Election Commission and a related lower-court decision, SpeechNow.org v. Federal Election Commission, arguably represent the most fundamental changes to campaign finance law in decades. During the 111th Congress, the House responded by enacting the DISCLOSE Act (H.R. 5175; S. 3295; S. 3628). The Senate has, thus far, declined to do so.

Fundraising and spending in the 2010 election cycle suggest that previously prohibited sources and amounts of funds will continue to be a factor in federal elections. Activities by independentexpenditure- only political action committees (commonly called super PACs) and tax-exempt organizations that are typically not political committees (e.g., many Internal Revenue Code 501(c) and 527 organizations) may be particularly prominent.

Despite these recent developments, some traditional aspects of campaign finance policy, such as disclosure requirements and most contribution limits, remain unchanged. Issues such as the presidential public financing program and the Federal Election Commission may require congressional attention regardless of more recent developments. In addition, the Supreme Court will continue examining campaign finance issues during the 112th Congress. Arizona Free Enterprise, et al. v. Bennett and McComish v. Bennett appear to be most relevant for state-level policy, but might also affect federal campaign finance law or legislation in Congress.

As Congress decides how or whether to revisit law surrounding political campaigns, it may be appropriate to take stock of the current landscape and to examine what has changed, what has not, and what policy options might be relevant. This report provides a starting point for doing so. It includes an overview of selected historical and recent developments. It also provides comments on how those events might affect future policy considerations.


Date of Report: December 21, 2010
Number of Pages: 25
Order Number: R41542
Price: $29.95

Follow us on TWITTER at http://www.twitter.com/alertsPHP or #CRSreports

Document available via e-mail as a pdf file or in paper form.
To order, e-mail Penny Hill Press  or call us at 301-253-0881. Provide a Visa, MasterCard, American Express, or Discover card number, expiration date, and name on the card. Indicate whether you want e-mail or postal delivery. Phone orders are preferred and receive priority processing.

Statement of Curtis W. Copeland, Specialist in American National Government Congressional Research Service

Curtis W. Copeland
Specialist in American National Government

Mr. Chairman and Members of the Subcommittee: I am pleased to be here today to discuss the recently re-established Administrative Conference of the United States (ACUS). As you requested, my testimony will focus on what issues ACUS might address in the coming months and years. As you know, however, CRS takes no position on any legislative or other policy option.


Date of Report: May 20, 2010
Number of Pages: 12
Order Number: T-052010
Price: $29.95

Follow us on TWITTER at http://www.twitter.com/alertsPHP or #CRSreports

Document available via e-mail as a pdf file or in paper form.
To order, e-mail Penny Hill Press  or call us at 301-253-0881. Provide a Visa, MasterCard, American Express, or Discover card number, expiration date, and name on the card. Indicate whether you want e-mail or postal delivery. Phone orders are preferred and receive priority processing.