CHECKS AND BALANCES AND PARTISAN

POLITICS
When the “framers” of the constitution were considering how they were going to organize the
government, one of their primary concerns was over how power was to be distributed. After
experiencing the injustices of an overwhelmingly powerful monarchy, they knew that there was
a need for a system of checks and balances, so they settled on dividing power between three
branches of government: Executive, Legislative, and Judiciary. It was hoped that by dividing and
sharing power between these three branches no one branch would be too powerful or
dominating over the others.

Over the past two hundred plus years the system of “checks and balances” has survived the test
of time and continues to play a vital role in the distribution of the powers in government.
Interestingly, the role and relevance of political parties have dramatically impacted the
effectiveness of today’s system of checks and balances. While the typical textbook discussion
rarely mentions this relevance, the next section will focus on how the allocation of Republicans
and Democrats within the three branches can have a profound influence on the system of checks
and balances.

HOW A BILL BECOMES A LAW

Most students, even if they haven’t studied government, are likely familiar with the generic
version of “how a bill becomes a law,” by watching Saturday morning cartoons: “I’m just a Bill on
Capitol Hill…” (You know the rest!) To refresh your memory, a law must be introduced in
Congress in the form of a “Bill.” Once it is reviewed (perhaps amended) by the relevant
committees in both houses; it is again reviewed (perhaps further amended) and voted on by the
entire bodies of both houses. If the bill receives a majority vote in both houses (218 in the H/R
and 51 in the Senate) it then goes to the President for his signature or veto. If the President
signs the bill it will become a law. However, if the President does not want the proposed
legislation to become law he may elect to veto it! Students are also reminded that Congress can
check the power of the President by not passing legislation that he supports and / or by
overriding his veto with a 2/3 vote in both Houses. If this rare vote is successful, the bill will
become a law despite the veto. While over 2,551 bills have been vetoed only 4.16% have been
overridden by Congress! Obviously, the fact that the President has the power to sign or veto a
bill serves as an important check on the powers of Congress. In this regard, the President is more
powerful than roughly 66.67% of Congress. In other words, if 289 of the 435 House of
Representatives along with 66 out of the 100 U.S. Senators want a bill to become law, it will not
matter unless the President agrees!
Equally important, but seldom discussed, is the President’s power of “threatening a veto.” As
students may know, the President is actively monitoring the legislation being considered in
Congress. If he does not like what they are proposing, he may let them know in advance that he
will not sign the bill hoping that they will change or reconsider it. Sometimes the veto threat can
be used to gain concessions or changes.
This important power practically amounts to the power of legislating although he does not have
this power directly. If there is a “veto threat,” Congress must determine whether they believe
they have enough votes to override his veto or if they are interested in sending an important
political message by forcing him to explain his veto to the American public.
Finally, unlike many governors, including the governor of California, the President does not have
“line-item veto” power. This would permit the president to “strike” or veto a particular line in
the budget while signing the remaining portion. Without this power the President is confronted
with an “all or nothing” veto choice leaving him with a tough choice if he favors a portion of the
bill, however, not supporting other components.
List of Presidential vetoes
(Pocket Vetoes will be reviewed later in the semester)

PARTY ALLOCATION IN THE EXECUTIVE AND CONGRESS (PARTISAN

POLITICS)
While the aforementioned is the typical discussion on the nature of checks and balances as it
relates to passing the budget and creating laws, there is much more to it! So much of what
transpires is dependent upon whether Congress and the President are from the same party
and/or the specific number of Republicans and Democrats in both Houses. For example, if
Congress and the President are from the same party there is likely less checks on the powers of
each.

For example, bills and the budget will be easier to pass if the two branches are from the same
party. However, if either or both of the houses are from different parties, there is more
disagreement and therefore more checks on each. As you can imagine, this also applies to
vetoes. It is more likely to see vetoes from a President who is from a different party than
congress and very unlikely to see a veto when they are from the same party. As mentioned, very
few vetoes have been overridden by Congress primarily because of the requirement that
Congress needs a 2/3 vote in both Houses. However, more relevant to this discussion in
contemporary politics is the fact that while a party may have control of both houses this control
is usually slightly over a simple majority and far from a 2/3 majority. If a party other than that of
the President had a 2/3 majority, this would effectively eliminate the President’s veto power in
that they would have a “built in” veto override vote. It would make them “veto proof” so to
speak! Without 2/3 control in both Houses it would require members of the majority party to
convince members of the minority party to join them in “Back Stabbing” a president from the
minority party. Needless to say, most members of the same party will remain loyal to their
President and not crossover on this vote. Crossover votes, not surprisingly, may take place
usually if it means not supporting an unpopular president and if it may assist the member of
congress in winning an upcoming reelection bid. In sum, partisan difference may cause gridlock
and conflict, but it also may force parties to compromise and a move to a more acceptable
middle ground. As we have witnessed recently, moments of national tragedy or turmoil may also
move members of Congress away from partisan politics and more towards compromise.
Unfortunately, their real colors will show-up again and again and getting re-elected will drive
them more than working toward compromises.

Filibuster in the U.S. Senate

Another important tool used in manipulating the system of checks and balances is the “F” word
or the “Filibuster!” Unlike the House of Representatives in which each member is limited as to
how much time they may speak, the U.S. Senate had no such limit. Without any procedural time,
limit to end discussion, members of the Senate would try to prevent or delay a vote by
continuing to talk…and talk… and talk…and talk!! (Get my point?) This is called a filibuster! This
tactic is usually used by the minority party which lacks enough votes to defeat the proposal or
cannot count on a Presidential veto to kill the measure. Occasionally a filibuster is used as
leverage to change the bill or for special considerations or other issues. The only way to stop a
filibuster is through a “Cloture” vote, which requires 60 members of the Senate. So long as 41
members of the Senate want to continue the filibuster and prevent or delay a vote, the other 59
members have no way to force them to vote on the legislation. As one can see, even if the
President and a majority of both houses are from the same party, so long as the minority party
has at least 41willing members in the Senate, they can check the power of the majority party.
Some members of the minority party may be reluctant to use the filibuster if they believe it may
hurt their image as a party or if they may be perceived as an obstructionist. In cases of
Presidential appointments, minority parties usually want to use the filibuster if they believe that
the President’s appointment is too extreme in his or her political beliefs. Some have argued that
all Presidential appointments deserve an “up or down” vote and that a minority should not
control a majority. In 2013, the Democrat controlled Senate was so frustrated by Republican
filibusters they finally decided to limit them only to Supreme Court Appointments and legislation.
No longer can the filibuster be used to stop other appointments made by the president because
only 51 votes are required for confirmation.
More on Filibusters and Cloture Votes
 In early 2013 the United States Senate passed significant changes to the filibuster process. In an
effort to limit its use, the minority part is allowed two amendments on bills and also would limit
the time spent debating some bills and nominations, allowing some to be completed in hours
that could otherwise take a day or more. Only time will tell if this will significantly change how
the filibuster is used.

The political profile of 115th Congress

House
MEMBERSHIP
 435 Members
 5 Delegates
 1 Resident
Commissioner
PARTY DIVISIONS
 236 Republicans
 193 Democrats
 0 Independents
 6 Vacancies
Senate
MEMBERSHIP
 100 Senators
(Vice President votes in case of a tie)
PARTY DIVISIONS
 47 Democrats
 51 Republicans
 2 Independent

PARTIES
While the democrats and the republicans have controlled power for many years and will likely
continue to do so, the electorate is moving away from the two parties and sooner or later the
parties will have to adapt to the will of the people and not allow partisanship to continue to be
the norm.
For a History of party division in Congress
For a History of Party division in Senate
History and description of Republican Party and Democratic party

IMPEACHMENT PROCESS:
HOUSE OF REPRESENTATIVES: Article, 1 Sec. 2
House Judiciary Committee or other committee draws up articles of impeachment listing
offenses. (Must be for “treason, bribery, or other high crimes and misdemeanors”) The
House then needs a simple majority vote for an impeachment. The impeachment is sent to the
Senate for trial.

SENATE
Article, 1 Sec. 3
The Senate, after reviewing arguments made by select members of the House, will vote on
whether to convict. A conviction requires a 2/3 vote. As America has recently witnessed, the
impeachment process is a highly politicized process that is also very dependent upon the
allocation of party members in Congress and the Executive. President Clinton was impeached by
a Republican controlled House of Representatives; however, he was not convicted in the
Republican controlled Senate because they only had a simple majority and not the required 2/3
majority. With Clinton being a Democrat, do you think that if the Democrats had control of the
House they would have voted for impeachment? Do you think if the Republicans had a 2/3
majority in the Senate, this may have had an impact on the results?

In addition to checking the powers of the Executive, Congress can also check the powers of the
Judiciary through the Impeachment Process. Furthermore, Congress can also check the powers
of the other two branches by launching Congressional Hearings or asking the U.S. Attorney
General to appoint a special prosecutor. Like so many other aspects to the system of checks and
balances, these powers can also be driven by partisan motives. It is very unlikely for members of
Congress that are from the same party as the President to call for his impeachment or request
that a special prosecutor be appointed to investigate his conduct. On the other hand, if a
majority of Congress is from the opposing party, they are more likely to resort to such measures.
 APPOINTMENTS:
Under Article II, Section 2, the President has the power to make appointments subject to
confirmation by the U.S. Senate. This allows the Executive and the Senate to have some checks
on one another, and in the cases of judicial appointments, on the Courts as well. The
appointment process is also influenced by partisan politics, and perhaps is the process in which
the parties become the most openly combatant with each other. However, when the President
and a majority of the U.S. Senate are from the same party, the appointment and confirmation is
typically a "slam dunk.” Under these circumstances, it can be argued that there are fewer checks
when the Senate and President are from the same party. However, when the two are from
different parties or in the case in which a particular Chairman from a Committee doesn't like the
President or his appointment, appointees have been outright rejected or prohibited to go before
a full Senate confirmation hearing.
In another extreme example of partisan politics, the Republicans refused to vote on Obama’s
2016 Supreme Court appointment replacing Justice Scalia so that the next president (their wish
came true a Republican was elected) would tilt the court to a 5-4 majority in favor of
conservatives. In April 2017, the Democrats tried to use a filibuster to stop Trump’s nomination
so the Republicans decided to change the rules by requiring a simple majority vote instead of 60,
thereby putting an end to the minority party’s ability to block nominations through the filibuster
(nuclear option).

Some believe that the minority party of a minimum of 41 senators should not have the power to
block the President and the majority party of 59 Senators. Others believe that a Supreme Court
Justice should have the support of both parties and requiring 60 votes ensures this.

Similar to the other branches, judges have also participated in this political game by delaying
their retirements in hopes that their vacancy can be filled by a President from their own party. As
students can see, all these partisan games in the appointment process are not exactly always in
the best interest of representing the people, but rather can reduce the system of checks and
balances to nothing more than petty partisan politics.

RATIFYING TREATIES:
Under Article II, Section 2, the President has the power to make Treaties with foreign
nations, subject to a 2/3 (ratification) vote in the Senate. This process provides a check on the
foreign policy powers of the Executive and the additional 2/3 requirement ensures that there is a
broad base of support in the U.S. Senate. With the 2/3 vote, this can make for interesting
bargaining by members of the minority party when the majority party does not quite have a 2/3
majority.

CHANGING THE NUMBER OF JUDGES

AND/OR DISTRICTS IN THE FEDERAL
COURTS:
The Federal Court has 94 Trial Courts, 12 (Circuit/Districts) Court of Appeals, and One Supreme
Court. The Appellate Courts are spread throughout the U.S. and have judges who were
appointed for “life” by various past Presidents. The party of the past Presidents, and the number
of judges he was able to appointment, may have an impact on how justice is administered in a
particular jurisdiction. For instance, if a particular Circuit/District has more Republican appointed
judges, it is likely that their decisions will be more conservative. However, the 9th Circuit,
California’s district, the judges are not as conservative as a majority of the Supreme Court. These
differences have resulted in many of their decisions being overturned by the Supreme Court.
Consequently, some conservative Senators have discussed the possibility of changing the district
either by moving judges in and out of the district or by increasing the number of Judges that may
serve in a District/Circuit. Obviously, the latter option would only be considered if the Senate and
President were from the same party.

About the Federal Courts

THE US SUPREME COURT CAN CHECK THE POWERS OF THE OTHER BRANCHES BY RULING ON THE
CONSTITUTIONALITY OF THEIR ACTIONS
When the President is challenged for trying to invoke a special privilege or do something that is
not within his power, the Supreme Court has the final authority in determining the
constitutionality. The Supreme Court has checked the powers of the Executive: Nixon in
Watergate; Reagan in Iran/Contra; and Clinton in Whitewater, and more recently, the Bush
administration’s in the treatment of detainees in Guantanamo, Cuba or his involvement with
domestic spying in the name of fighting the “War Against Terror.” The same authority is also
given to the Court when there is a challenge to laws passed by Congress. The U.S. Supreme
Court has the authority to overrule laws passed by Congress if found to be unconstitutional.