Oct 13

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Constitution Check: Can congressional elections be suspended?



Posted 2 years, 6 months ago.

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In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about the meaning of the Constitution and what duties it imposes or rights it protects.  Today’s topic: the constitutional duty to hold elections to the U.S. House of Representatives every two years.

The statement at issue:

“You have to have more ability from Congress, I think, to work together and to get over the partisan bickering and focus on fixing things.  I think we ought to suspend, perhaps, elections for Congress for two years and just tell them we won’t hold it against them, whatever decisions they make, to just let them help this country recover.  I really hope that someone can agree with me on that.”

- Remark made by North Carolina Governor Bev Perdue to the Rotary Club of Cary, N.C., on September 27 (quoted in the Raleigh News and Observer that day).  Her spokeswoman later said that the governor was “using hyperbole” to make a point about politicians who focus only on their next election.

We checked the Constitution, and…

Wikimedia Commons Flickr photo by Tom Arthur

Gov. Perdue may have a political point, but it would take an amendment to the Constitution to bring about any interruption — long or short — in the federal election cycle.  The Founding Fathers were quite familiar with the record of some English kings — like Charles I in 1625 — of simply sending Parliament home, if the lawmakers were not following the monarch’s wishes.

In Philadelphia, the U.S. Constitution’s draftsmen decided to write it into the basic document that “the House of Representatives shall be composed of members chosen every second year by the people of the several states.”

James Madison, the Constitution’s principal author, defended that mandate in No. 52 of the Federalist Papers, published in the New York Packet on February 8, 1788, during the ratification process.  It was “essential to liberty,” Madison wrote, that the new House of Representatives “should have an immediate dependence on, and an intimate sympathy with, the people.  Frequent elections are unquestionably the only policy by which this dependence and sympathy can be effectually secured.”

He did concede, though, that the number of years between elections “does not appear to be susceptible of any precise calculation.”  Reviewing the experience of the colonies, Madison noted that they chose their legislatures at intervals of one to seven years.  His home, Virginia, used a seven-year cycle, Madison said, but he added that a period of that length was “inadmissible…when compared with a greater frequency.”  The “liberties of the people,” he summed up, would be “in no danger from biennial elections.”

The Supreme Court has never had occasion to consider whether a two-year election is too long or too short to make the system work as Madison envisioned it.  Since the provision in Article I about the two-year cycle is so explicit, there is no room to question it — and, as a matter of legal procedure, it is highliy doubtful that anyone would have a right to come to court to complain of a perceived imperfection in the system.   It is clear, as a legal matter, though, that the election for Congress must be held on the same day all across the nation.  A single day — the second Tuesday in November — has been the required day since 1845.

As Gov. Perdue observed, perhaps aptly, members of the House in the modern era do tend to have a rather strong interest in their next election cycle, and, indeed, the frequency with which members return to their districts to renew their “dependence and sympathy” on and with their constituencies certainly shows that they have ample opportunities to stay in touch.  In most congressional offices, too, there is a staff that does nothing but answer the constituents’ mail and that seeks to satisfy a large share of their demands.

While campaign finance reformers insist that members of Congress would pay more attention to more people in their districts if they were not so dependent upon large donors of campaign cash, that is not a requirement that the current Congress is likely to impose upon itself, and it is not something that the Constitution would compel.  The current Supreme Court majority, in fact, is less and less interested in strong federal legislation to restrict the dependency upon money.   It is very likely, though, that the two-year election cycle does intensify the pressure to raise money.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy.  He has reported on the Supreme Court for 53 years, currently covering it for SCOTUSblog, an online clearing house of information about the Supreme Court’s work.



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