Party Polarization and Congressional Committee Consideration of Constitutional Questions
Devins, Neal, Northwestern University Law Review
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 the pages that follow, I link these two phenomena to party polarization in Congress. Specifically, I argue that party polarization has played an important role in defining the policy agendas of congressional committees, committee resources and power, congressional attitudes toward 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 hearings1 held by the Judiciary Committees. Yet polarization is not the only variable that figures into the number and location of constitutional hearings. Court decisionmaking and presidential action, for example, may prompt lawmakers (often at the urging of interest groups) to hold constitutional hearings. Moreover, even though party polarization affects many of the factors lowering interest in congressional hearings, it 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 calling attention to factors that influence the number and location of constitutional hearings, this Article extends the analysis of a 2004 chapter that I coauthored with Keith Whittington and Hutch Hicken.2 That chapter 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 congressional hearing activity. 3 By analyzing the period from 2000 to 2009, this Article will provide a somewhat different and hopefully fuller account of congressional committee consideration of constitutional questions.4 In particular, by explaining why party polarization is likely to depress committee interest in constitutional hearings, this Article explicitly links the overall decline in constitutional hearings with increasing party polarization. But this Article also accounts for the fact that congressional practices are both extremely dynamic and extremely situational.5 For example, on the one hand, the Gingrich Revolution of 1995 immediately transformed congressional practices and priorities; on the other hand, neither the 2007 Democratic takeover of Congress nor the 2008 election of Barack Obama led to dramatic change in the patterns of constitutional hearings.6
This Article will proceed in three parts. In Part I, I detail the data on House and Senate practices from 1970 to 2009, charting the frequency of congressional hearings as well as changing practices among congressional committees. In Parts II and III, I attempt to make sense of the changing patterns in constitutional hearings. Part II discusses the decline in constitutional hearings outside the Judiciary Committees. Part II explains in part how party polarization contributes to Congress's increasing focus on policy issues though not to the constitutional underpinnings of those policies. Part II also explains why it is that committee interest in constitutional questions varies over time and spurs occasional spikes in committee interest in constitutional questions. In Part III, I turn my attention to the Judiciary Committees and discuss why those committees continue to regularly hold constitutional hearings.7 In the Conclusion, I summarize the Article's claims and offer a brief commentary about the future of constitutional hearings. …