Party Polarization and Congressional Committee Consideration of Constitutional Questions

Neal Devins - William & Mary Law School

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When enacting health care legislation in March 2010, Congress largely ignored potential legal challenges to its handiwork.  Even though the constitutionality of the law was the subject of scores of newspaper stories, opinion pieces, legal blog commentary, and much more, no congressional committee held hearings examining the constitutionality of health care legislation.  Instead, the House and Senate Judiciary Committees waited for two federal district judges to declare portions of the act unconstitutional before holding February 2011 hearings about the bill’s constitutionality.  What gives?

Congressional committees are one of the two “principal organizing structures of Congress”1 (the other being political parties).  And while the relative influence of committees and political parties has varied over time, it has always been the case that Congress does significant work in committees.2  “[T]he connections between public attention and hearings, and between hearings and statutes [enacted], strongly suggest the general sensitivity of the lawmaking process to public priorities.”3

Why then did congressional committees ignore potential legal challenges to health care legislation?  This bill was—for better or worse—the signature accomplishment of the 111th Congress.  Lawmakers should have cared deeply both about its constitutional fate and steps they could have taken to buoy its constitutional foundations.

In understanding this disjunction between Congress’s presumed interest in the constitutionality of health care legislation and committee practices, I think it sensible to look to the single most obvious and recognizable trend in Congress over the last thirty years, the growing polarization between the Democratic and Republican parties.4  This linkage between party polarization and committee practices is the subject of my Article, Party Polarization and Congressional Committee Consideration of Constitutional Questions.5  In particular, my Article explains why the majority party in a polarized Congress pays less attention to the constitutional foundations of legislation it supports and, in so doing, shuts out the minority party from calling witnesses who would cast doubt on the constitutional underpinnings of bills favored by the majority party.

By examining congressional committee practices from 1970-2010, I document dramatic changes in both the number and location of constitutional hearings in Congress.  Starting around 1990 and especially following the 1995 Republican takeover of Congress, congressional committees have paid less attention to constitutional issues than before.  During the same period, the House and Senate Judiciary Committees have become Congress’s dominant voice on constitutional questions.  In making sense of these two phenomena, I argue that party polarization has played an important role in defining the policy agendas of congressional committees, committee resources and power, congressional attitudes towards the Supreme Court, and the willingness of committee chairs to allow members of the minority party to call witnesses and otherwise air objections to committee proposals.  Each of these factors contributes both to diminishing committee interest in the Constitution and to the increasing share of constitutional hearings held by the Judiciary Committees.

At the same time, polarization is not the only variable that figures into the number and location of constitutional hearings.  Court decision-making and presidential action, for example, may prompt lawmakers (often at the urging of interest groups) to hold constitutional hearings.  Moreover, even with respect to factors that polarization contributes to, party polarization does not always depress congressional committee interest in constitutional questions.  For example, when Republicans gained control of Congress in 1995, federalism figured prominently into the party’s agenda and, as such, there was a spike in constitutional hearings in the wake of the 1994 elections.

In calling attention to factors that may influence the number and location of constitutional hearings, my Article extends the analysis of a July 2004 paper that I coauthored with Keith Whittington and Hutch Hicken.6  That paper mapped patterns of constitutional hearing activity in Congress from 1970 to 2000.  At that time, patterns of declining committee interest in the Constitution were harder to discern (as was the pivotal role that party polarization played in transforming congressional practices in this area).  By taking the 2000–2010 period into account, my Article provides a somewhat different and hopefully fuller account of congressional committee consideration of constitutional questions.  In particular, by explaining why party polarization is likely to depress committee interest in constitutional hearings, my Article explicitly links the overall decline in constitutional hearings with increasing party polarization.  At the same time, my Article also takes into account the fact that congressional practices are extremely dynamic and situational.  For example, the Gingrich Revolution of 1995 immediately transformed congressional practices and priorities; on the other hand, neither the 2006 Democratic takeover of Congress nor the 2008 election of Barack Obama transformed constitutional hearings.

My Article proceeds in three parts.  Initially, I detail data on House and Senate practices from 1970–2010, charting the frequency of constitutional hearings as well as changing practices among congressional committees.  In Section Two, I discuss the decline in constitutional hearings outside the Judiciary Committees and, in so doing, explain how party polarization contributes to Congress’s increasing focus on policy issues, not the constitutional underpinnings of those policies.  In Section Three, I explain why the Judiciary Committees nonetheless continue to regularly hold constitutional hearings, highlighting how the incentives of Judiciary Committee members and their interest group constituents are quite different from other congressional committees.

Section One details congressional practices over the past forty years (based on a search of congressional hearings).  It documents the total number of constitutional hearings in the House and Senate, the percentage of constitutional hearings in the House and Senate, the number of constitutional hearings in the Judiciary Committees as compared to other congressional committees, the percentage of constitutional hearings held by the Judiciary Committees, and party polarization in Congress (the political distance between the parties as measured by roll call votes in Congress).  From this data, Section One makes clear that (1) as party polarization increases, the number of constitutional hearings decreases; (2) as party polarization increases, there is a sharp decline in hearings outside the Judiciary Committees; (3) as party polarization increases, the Judiciary Committees have become Congress’s dominant voice on constitutional questions.  During the 1970s (relatively low polarization), the Judiciary Committees held 46 percent of all constitutional hearings; during the 1980–94 period (rising polarization), that number had risen to 56 percent; from 1995–2010 (high polarization), the Judiciary Committees heard 72 percent of constitutional hearings.

Section One, while highlighting these general patterns, also documents that the number and location of constitutional hearings varies from year to year.  In 1995, for example, the Republican takeover of Congress precipitated a huge spike in constitutional hearings because much of the Republican agenda was moored to constitutional issues (term limits, item veto, unfunded mandates, and other federalism initiatives).  Because vagaries in hearing patterns might be tied to whether Republicans or Democrats control Congress, changes in party control, and shifts from unified to divided government (or vice versa), I examined whether any of these “partisan” explanations contributed to the general patterns I documented.7  For the most part, partisan factors played no role in affecting the number of constitutional hearings—Democrats and Republicans held roughly the same number of constitutional hearings, the number of hearings did not meaningfully vary between periods of unified and divided government, changes in party leadership sometimes impacted the number of constitutional hearings (e.g., 1995) and sometimes had no impact (e.g., Democratic takeover in 2007).

Unlike partisan explanations, party polarization seems very much linked to the decline in overall constitutional hearings and the growing dominance of the Judiciary Committees in holding constitutional hearings.  Sections Two and Three of the Article address each of these phenomena.  Section Two examines the ways party polarization transformed Congress.  Among other things, I highlight party line voting, the rise of “message politics” (party efforts to use the legislative process to make a symbolic statement to voters and other constituents), the rise in leadership powers, the decline in committee authority (including reductions in committee staff size), and a drop in legislative productivity.  Following this overview, Section Two details how these factors have contributed to the decline in constitutional hearings.  In particular, the decline in constitutional hearings is largely explained by the interface of these factors with lawmaker incentives to discount constitutional interpretation in favor of other pursuits—reelection, constituent service, and the advancement of favored policies.

To make these points more concrete, consider the relationship between the majority and minority party in defining the content of congressional hearings.  In a polarized Congress, Democrats and Republicans vote along party lines, pursue different “messages,” and seek both to advance their message and undermine the message of the opposing party.  For this very reason, the majority party is increasingly unwilling to allow opposition lawmakers to challenge the constitutionality of legislative proposals.  While it has always been the case that legislative majorities have controlled the policy and hearing agendas of committee hearings, party polarization has nevertheless resulted in further limits on minority access to hearings.  In part, the majority party’s increasing homogeneity has resulted in an absence of competing views that has made hearings more one-sided.  Committee chairs can count on party loyalists to stick together, and, consequently, there is less reason to reach out to majority or minority party members that do not necessarily agree with the chair’s agenda.  When Republicans controlled Congress from 1995 until 2006, for example, Democratic lawmakers held so-called “shadow” or “mock” hearings to protest their inability to call witnesses or otherwise define the hearing agenda.  Furthermore, with party leaders exercising greater control over the agenda and membership of committees, committee chairs have less interest in and less freedom to pursue issues that do not jibe with the interest of party leaders.  Against this backdrop, policy and constitutional objections to committee initiatives will likely only come from the minority party; likewise, the majority party will not allow committee hearings to serve as a vehicle for the airing of such minority party objections.  For this very reason, it is not surprising that Democratic committee chairs blocked Republican efforts to derail health care legislation in the 111th Congress by, among other things, calling witnesses who would question the act’s constitutionality.

The fact that (outside the Judiciary Committees) congressional committees increasingly emphasize policy questions does not mean that congressional committees never consider second order constitutional issues.  Instead, notwithstanding the general decline in constitutional hearings, the number of constitutional hearings ebbs and flows.  In explaining often-dramatic year-to-year differences in constitutional hearings, Section Two suggests that two things are at play.  First, outside of the Judiciary Committees, there is no constituency in Congress that pushes for the holding of constitutional hearings.  Congress and its constituents are interested in policy goals and, as such, view the Constitution in purely instrumental terms.  Congressional committees, in other words, will not interpret the Constitution as a matter of course—their interest in the Constitution is contingent on the specific policy goals they seek to achieve in a given year.  Second, the exogenous factors that trigger constitutional hearings vary from year to year.  These factors include Supreme Court decisions, presidential actions, changes in party leadership, and the national policy agenda.

In Section Three, I shift focus to the Judiciary Committees.  Initially, I explain that party polarization significantly impacts the types of hearings the Judiciary Committees hold as well as the willingness of the majority party to allow the minority party to call witnesses.  In making this point, I call attention to the fact that the Judiciary Committees tend to attract especially ideological lawmakers (interested more in legal policy issues than in, say, providing financial benefits to constituents).  Correspondingly, interest groups that have strong ties to the Judiciary Committees are often identified with the far left or far right.  Accordingly, these interest group constituents want the committee to hold hearings on legal policy issues that matter to them and they want the committee to run hearings in ways that back up their policy preferences.

Somewhat related to the first point, I also explain in Section Three why these policy-oriented lawyers and their interest group constituents are personally interested in constitutional issues in ways that separate them from the members and constituents of other congressional committees.  The Judiciary Committees have jurisdiction over civil liberties, constitutional amendments, and federal courts (not to mention the Senate’s power to confirm federal judges and Justice Department officials).  This confluence of jurisdiction, member preferences, and interest group pressures has resulted in the Judiciary Committees’ holding more than 70% of all constitutional hearings since 1995 (as compared to the less polarized 1970s—when the Judiciary Committees held less than 50% of constitutional hearings).

Let me close by making brief mention of two questions raised but not answered in my paper:  First, I do not attempt to answer whether congressional consideration of constitutional questions is a public good that we should value and develop ways to incentivize.  Second, my Article is not intended to encourage courts to be opportunistic in advancing their preferred vision of law or policy.  While it may be that there is little risk of legislative backlash (so long as there is declining lawmaker interest in constitutional questions and, with it, the belief that courts need not defer to congressional judgments), Congress remains “our most democratic branch” and it may be that judicial deference should be moored to that anchor, rather than institutional engagement or competence.8  When enacting health care legislation, for example, Democratic leadership was unwilling to undermine the fragile coalition that supported the bill by allowing the minority party to call witnesses that would question the bill’s constitutional foundations.  For this very reason, I hope that my Article is not seen as a condemnation of Congress.  My aim has been to note congressional practices over time and to identify the various factors that determine the number and location of constitutional hearings.


Neal Devins is the Goodrich Professor of Law, Professor of Government, Director of the Institute of Bill of Rights Law and Director of the Election Law Program at William & Mary Law School.

Copyright © 2011 Northwestern University School of Law.

This Legal Workshop Piece is based on the following:  Neal Devins, Party Polarization and Congressional Committee Consideration of Constitutional Questions, 105 NW. U. L. REV. __ (forthcoming 2011).

  1. John H. Aldrich & David W. Rohde, Congressional Committees in a Continuing Partisan Era, in CONGRESS RECONSIDERED 217, 217 (Lawrence C. Dodd & Bruce I. Oppenheimer eds., 9th ed. 2009).
  2. Keith E. Whittington, Hearing About the Constitution in Congressional Committees, in CONGRESS AND THE CONSTITUTION 87, 87 (Neal Devins & Keith E. Whittington eds., 2005).
  5. 105 NW. U. L. REV. (forthcoming 2011).
  6. Keith Whittington et al, The Constitution and Congressional Committees: 1971-2000, in THE LEAST EXAMINED BRANCH: THE ROLE OF LEGISLATURES IN THE CONSTITUTIONAL STATE 396 (Richard W. Bauman & Tsvi Kahana eds., 2006).
  7. This analysis tracks the work of Keith Whittington both in Whittington et al., supra note 6 and Whittington, supra note 2.
  8. Barbara Sinclair, Question: What’s Wrong with Congress?  Answer: It’s a Democratic Legislature, 89 B.U. L. REV. 387, 397 (2009).

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