Congress under the articles of confederation was a unicameral body representing thirteen states. But delegates to the constitutional convention, influenced by the example of the British Parliament and almost all of the states, agreed rather early to the principle of a two-house legislature. Members of the house of representatives were to be popularly elected, with each state's members proportionate to population. But membership in the senate and selection of senators caused intense controversy.
The large states wanted the Senate also to represent population, but the smaller states were adamantly opposed. They forced a compromise under which every state would have two senators, elected by the state legislatures for six-year terms. This solution gave effect to the federal principle, the Senate representing the states and the House providing popular representation. However, legislative election of senators ultimately proved unacceptable. During the nineteenth century the elections were often marked by scandals and deadlocks, and a rising progressive temper in the country led to adoption of the seventeenth amendment in 1913 providing for direct popular election of senators.
The size of the House was initially set by Article I at sixty-five, to be revised thereafter on the basis of decennial censuses. As the population grew and more states were admitted to the Union, Congress increased the number of seats until it reached 435 after the 1910 census. Congress then concluded that further enlargement would make the House unwieldy, and by statute in 1929 fixed 435 as the permanent size of the House.
After each census the 435 House seats are apportioned among the states according to a statutory formula. It is then the responsibility of each state legislature to draw the lines for congressional districts. There was initially no legal obligation to assure equality of population among districts. Particularly in the early twentieth century rural-dominated state legislatures refused to revise district lines to provide equitable representation for growing urban areas. Judicial relief failed when the Supreme Court in colegrove v. green (1946) ruled that drawing the boundary lines of congressional districts was a political question for decision by the state legislatures and Congress, not the courts. This holding was implicitly overruled by the Court in baker v. carr (1962), and in wesberry v. sanders (1964) the Court made equality of population in congressional districts a constitutional requirement.
The drawing of congressional district lines typically generates bitter legislative controversy as the majority party endeavors to protect its dominance by gerrymandering and incumbents of both parties seek to safeguard their own districts. In numerous states since 1964 legislative deadlocks have required the courts to intervene and draw the district lines.
Members of the House have two-year terms. Proposals for extending the term to four years have been made because of the increased costs of campaigning, longer sessions of Congress, and more complex legislative problems. In the Senate, the fact that only one-third of the seats fall vacant every two years gives it the status of a "continuing body," in contrast to the House which must reconstitute itself and elect its officers every two years.
The presiding officer of the House is its Speaker, chosen by the majority party from among its members. The Speaker has a vote and may on rare occasions participate in debate. The Senate's presiding officer is the vice-president; when serving in this capacity his title is President of the Senate. He has no vote except in case of a tie. The Constitution authorizes the Senate to choose a president pro tempore to preside in the absence of the vice-president. The president pro tempore is typically the senior member of the majority party.
Article I requires that a senator be thirty years of age, nine years a citizen of the United States, and an inhabitant of the state from which elected. A representative need be only twenty-five years of age and a citizen for seven years. By custom a representative should reside in the district from which elected. Members of Congress are disqualified for appointment to executive office, a provision that prevents the development of anything approaching a parliamentary system. To accept an executive post, a member of Congress must resign.
Each house is authorized to "be the judge of the elections, returns and qualifications of its own members" (Article I, section 5). The "qualifications," it has been established by powell v. mccormack (1969), are only the age, residence, and citizenship requirements stated in the Constitution. However, on several occasions both houses have in effect enforced additional qualifications by refusing to seat duly elected members who met the constitutional qualifications. In 1900 the House refused to seat a Utah polygamist; similar action was taken in 1919 against a Wisconsin socialist who had been convicted under the espionage act for opposing American participation in world war i. The most prominent black member of Congress, Adam Clayton Powell, was denied his seat in 1967. There was a judgment of criminal contempt outstanding against him, and his conduct as a committee chairman had been irregular. The Supreme Court ruled, however, that he possessed the constitutional qualifications and so could not be denied his seat. Members of Congress cannot be impeached, but they are subject to vote of censure by their chamber, and to expulsion by two-thirds vote. The Court indicated that the House might have expelled Powell for his alleged conduct. Vacancies in the Senate can be filled by the state governor, but in the House only by special election.
Members of Congress have immunity from arrest during legislative sessions except for cases of " felony, and breach of the peace" (Article I, section 6). They are guaranteed freedom of speech by the provision that "for any speech or debate in either house, they shall not be questioned in any other place." (See speech or debate clause.) The purpose is to prevent intimidation of legislators by the executive or threat of prosecution for libel or slander. They can be held accountable for statements or actions in their legislative capacity only by their own colleagues. This immunity covers not only speeches in Congress but also written reports, resolutions offered, the act of voting, and all other things generally done in a legislative session. However, immunity does not extend to press releases, newsletters, or telephone calls to executive agencies, the Supreme Court held in hutchinson v. proxmire (1979). Also, taking a bribe to influence legislation is not a "legislative act," according to brewster v. united states (1972).
C. Herman Pritchett
Davidson, Roger H. and Oleszek, Walter J. 1985 Congress and Its Members, 2nd ed. Washington, D.C.: Congressional Quarterly.