Senate/Reps Controversy: Between the Upper and the Lower House

 

SOME YEARS AGO, an ARGUMENT raged BETWEEN THE SENATE AND HOUSE OF REPRESENTATIVES over which of them was superior to, or supreme over, the other. The Senate believed it had historical and philosophical standing to ‘superiority’ or ‘supremacy,’ as the Upper House, over the House of Representatives, the deemed Lower House. But the House of Representatives felt and believed otherwise.

Since 1999, the Senate and the House of Representatives of the National Assembly have been sparring on the superiority or supremacy tussle. At the National Assembly’s enactment of the Niger Delta Development Commission (NDDC) Act, the House of Representatives contested but lost to the Senate the exclusive confirmation power of chairman and members of the governing board of the Commission. The Senate reasoned that the Constitution of Nigeria, since 1979, if not earlier, in the Parliamentary realm, of 1960 to early 1966, granted it the power of confirmation, exclusive of the House of Representatives, of Ministers and other confirmable national officers for the Government of the Federation. The Senate argued that this grant of power ought to be extended to similar officers of agencies of the Government, as ordained and created by the two Houses of the National Assembly. The Senate still does so believe.

The Senate’s claim for exclusive power of confirmation of NDDC’s officers and many others, is unfounded, as it has neither federal constitutional origin nor is it within the threshold of federalist praxis. The NDDC is not, per se, a national agency, composed of national officers. It is a special remedial, ad hoc agency intended to assuage longstanding crude oil-related environmental, economic and other hazards and deprivations, in nine, out of the 36 states of the federation. The duties of officers of the NDDC are not national, but municipal, for the federal government, and their duties are limited within the nine-state jurisdiction of the NDDC, and not representative of the federation.

Officers of the NDDC are mere legislative officers of the federal government, not of the federation. The NDDC officers represent the federation’s power, vested in the President of Nigeria and it can be divested of the President and vested anywhere else, by an act of the legislature; or taken by the legislature and vested in itself. The National Assembly can also shut down the commission, anytime, as it deems necessary and proper, as the commission is a creation of the legislature.

The constitutional vesting in the Senate of confirmation power, for appointment by the President of a national officer, is founded on longstanding federalist presumption of maturity, wisdom and resilience of the Senate as federal legislature’s purported Upper House.  First of all, this Upper House, Lower House chasm of federal bicameral legislature, is a puerile ‘constitutional’ controversy I must dismiss here and now. The source of history and usage of this Upper House, Lower House chasm, has no philosophical, theoretical or constitutional origin; it is not supported by praxis of presidential-bicameral federalism. But then, Nigeria has a surplus of ‘constitutional lawyers,’ and ‘constitutional commentators’, among them are jobbers who goad the protagonists chambers onto such fight. And the National Assembly, as a national institution, is starved of necessary and proper offices, of ‘federal constitutional historian,’ ‘federal constitutional philosopher,’ or the like, among its catacomb of committees, offices, etc. If the legislature had such offices, experts of the offices would professionally guide the bicameral powers on the history, philosophy and theory of the subject.

The controversy of Upper House, Lower House, of the coequal federal legislature, the Senate and the House of Representatives, is not, by nature, a construction of constitutional superiority of one over the other. Associated history of the notion is traceable to the purported “Great Compromise” between small and large federating states in respect of state representation to the new federal government of the United States, as envisaged by the 1787 Constitutional Convention delegates. The touted “Great Compromise” or “Connecticut Compromise,” in honor of its architects, Connecticut delegates Roger Sherman and Oliver Ellsworth, was of the effect that the newly proposed United States Government would be composed of dual congressional representation, of a Senate and House of Representatives. All the states of the United States were to, and still do, have equal representation in the Senate, but proportional representation, by population, in the House of Representatives. After extensive debate, the 1787 framers of the United States Constitution settled on two senators representing each state. But the longstanding appellation, Upper House, Lower House, of the Congress of the United States, arose under exigent circumstances of chamber allocation of Federal Hall, City of New York. The City of New York  had served, in 1789, at the inaugural of the new federal government, as temporary federal capital of the United States, with the City’s Federal Hall as the Seat of the new federal government, before it moved to Philadelphia, in 1790 and, finally, to Washington, D.C., in November 1800. Perhaps, brief account on how the Upper House, Lower House peroration came to be would here do.

On March 4, 1789, eight United States Senators overcame late winter travel conditions from their respective states to reach the United States temporary capital, the City of New York. Eleven states had by then ratified the Federal Constitution. Out of the twenty-two eligible senators (two per state), the Senate needed twelve present to achieve a quorum, to conduct legislative business. They could not do so, until April 12, 1789, when quorum of twelve Senators was achieved. But at the appointed hour for the government to begin, eight Senators-elect climbed the stairs of City of New York’s old City Hall. In the hope of convincing the Congress to make the City of New York the nation’s permanent capital, its leaders had before the appointed date of March 4 named that building Federal Hall and tripled its original size. When the eight Senators reached their elegant chambers on 2d floor of the building, the Senate literally became the Upper House. In the Federal Hall, the House of Representatives was located on the lower floor, which had more space, because they were far more in number. From there, a tradition was born.

The Continental Congress, under whose legal instrument the Constitutional Convention came to be, and the Convention, itself, operated in secrecy. They created the Senate, which operated in secrecy for some years, before opening its gallery to the public, in 1795. The Senate opened its doors, not for its ‘love’ for the public. After all, the Convention that in its image created the Senate, to actually represent the states, as each senator was in the beginning of the federal journey chosen by the legislature of his state, not necessarily to represent the people of the state, but the state, felt that occasional publication of an official journal, with information on how Senators voted on legislation and other matters, would be sufficient to keep the public informed. And defenders, among senators, of deliberative secrecy, looked with disdain on the House of Representatives, where they believed members were tempted to play to a gallery of hissing and cheering onlookers. Swanstrom, Roy, The United States Senate, 1787-1801; A Dissertation on the First Fourteen Years of the Upper Legislative Body; Senate Document 100-31, 100^th Congress, 1^st Session, 1988.

The people of each state began to complain, loudly, that they could not effectively assess their Senators’ behavior from outside a closed door. Individual Senators, who looked forward to reelection, began to recognize that their legislative positions could more easily win popular support at home if publicly aired. Equally, the public was beginning to refer to the House of Representatives as both ‘the House’ and ‘Congress. Yet, only the rather innocuous location arrangement in the City of New York, of two constitutionally equal Houses of the Congress of the United States that brought about the historically resilient appellation, Upper House, Lower House.

In deference to settled rite of scholarship, inclusive of general commentary, this paper extends credit to Billy Onoja, of the Department of Political Science, University of Jos. On political idea of the Senate, in history, Onoja said in his letter to Nigeria’s SUNDAY INDEPENDENT, April 9, 2007, “‘Senate’ is a derivative of the Latin word “Senex”, meaning ‘Old Man’, which, when conjugated, becomes ‘Senatorum’…. It was from this Latin word that the Roman government and law created their legislative institution, called SENATE, which was a place meant for the Old Statesmen of the Roman Empire, to apply their wisdom in tempering and cooling the hot laws of the Emperor and other legal authorities, for the common good. That is why names like Cicero and Mark Anthony, who were orators in the Roman Senate, still remain fresh in the minds of present generation of scholars and politicians. The Nigerian Senate will be ridiculing that institution if they continue their bread and butter politics that led to the late [Chuba] Okadigbo calling some of his former Senate colleagues ‘five-five kobo Senators.’” Perhaps, the structural foundation of the Roman Empire, which reflected institutional resilience of its Senate, could have insulated its Cicero’s and Mark Anthony’s from the comparative five-five kobo deprecation, ground underlying removal of Caesar; the removal not for pecuniary interest of movers of his removal, but of and for Rome!

The framers of the Constitution of the United States, the first recorded undertaking of federalism, ordained the Senate to protect rights of individual states of the federation and safeguard minority opinion in a system of government designed to give greater power to untested national government, of legislative, executive and judicial powers. The United States Senate was conceptualized and modeled on governors’ councils of their colonial era and state senate that had evolved on their Independence. Studious circumspection on individual profile and pedigree of notable proponents of the Convention treatises on the Senate reveals that the class distinction attached to the United States Senate, even as of that Age, if not today, is, indeed, resplendent of whiffs of aristocracy of the English House of Lords. Courts of Nobles, of supposed ‘old wise men,’ of European kingdoms and empires of the American colonial Age, extended whiffs of their aristocracy to American Constitutional Convention notions of the Senate, as continuing Body of Nobles of the State. All this aristocratic hubris, ostensibly dichotomous of the projected egalitarian reflexes of the Convention, got codified in the original Constitution’s Article 1, Sec 3, toward protection of rights of the states, and to secure their ratification of the emerging constitution. This materialized in granting state legislatures the right of election of Senators for the United States. But the original provision is altered by the 17^th Amendment, for their direct election, since 1913, by the people of the respective states. Crook,  Sara Brandes and Hibbing, John R., “The 17^th Amendment and Congressional Change,” American Political Science Review 91 (Dec 1997).

Framers of the United States Constitution intended the Senate to be independent Body of responsible citizens, who would share power with the President. James Madison, Virginia Delegate, explained in his Convention Notes that the Senate’s role was “first to protect the people from their rulers [and], secondly, to protect the people from the transient impressions into which they themselves might be led.”  He further explained that the class distinction of the Senate with minimum age of thirty and term limit of six years, as opposed to twenty-five years of age as minimum for House members with two-year terms, were based on “the nature of the senatorial trust, which requires greater extent of information and stability of character.” This would allow the Senate, he said, “to proceed with more coolness, with more system, and with more wisdom than the popular[ly elected House of Representatives].” The Federalist No. 62.

Writing to Thomas Jefferson, who had been out of the country, during the constitutional convention, James Madison, one of the Convention’s foremost federalist theoreticians, further explained that the Constitution’s framers considered the Senate to be great “anchor” of the government. And to his framer colleagues, he explained that the Senate would be the “necessary fence” against the “fickleness and passion” that tended to influence the attitudes of the general public and members of the House of Representatives.

On the payment of salaries of members of the Senate of the United States, as envisioned by the Constitution, several delegates suggested that the individual states should pay the salaries. James Madison, in his indefatigable federalist orientation, toward success of the new federal experiment, reminded his fellow delegates that assumption by states of payment of salaries of United States senators would destroy the principle that senators were to be “impartial umpires and Guardians of justice and General Good.” He opined that senators were to reflect national, as well as state, interests. Equally observed, by other Convention Delegates, of Madison’s disposition on the issue, was that party politics of state legislators might hold the Senate hostage, by withholding salaries of ‘politically recalcitrant’ senator from the state, to influence his voting record in the Senate. In the end, the Convention resolved that Senators should be paid salaries, but out of the treasury of the United States. In doing so, the framers decided that it was moral and wise to leave the details, of how and how much salary to be decided by the new incoming Congress. Kurland, Philip, B. and Lerner, Ralph, The Founders’ Constitution, University of Chicago Press, Chicago, 1987.

In pursuit of the Madisonian “General Good” cause, early debates and drafts of the Convention delegates, such as the Convention’s Committee of Detail, proffered vesting in the Senate of the United States power to make treaties, appoint Ambassadors and Judges of the Supreme Court. The debate on this issue was fierce. The proponents of a deliberative Senate, of ‘wise men,’ had no intention of residing their fate and posterity in the hands of a president, of executive powers, they considered similar to suffocating imperial tutelage of the English Crown, of their ‘indecent’ colonial past. This was, however, modified to share these powers with the President, whereby the President nominates and appoints national officers, but with the ‘advice and consent’ of the Senate. Even George Washington, the Convention president and, later, the first President of the United States, told Thomas Jefferson that the framers had created the Senate to “‘cool’ House legislation, just as a saucer was used to cool hot tea.” And, by his own foretelling, even though he could not have expected it, he suffered, more or less, the fate of having experienced the Senate, not just “cooling” the House of Representatives, but also the President.

To this end, it is noted that when President Washington visited the Senate, in August 1789, to consult with it on a recently negotiated American Indian treaty, he expected an immediate response, under the Constitution’s ‘Advice and Consent’ of the Senate in treaty making. To his great frustration, the Senate decided to refer the issue for further but deliberative study, than just nodding to and rubber stamping the President’s wish. After the President received Senate approval of that treaty, he vowed never to again seek, in his person, the chamber’s advice, as his request would be “cooled.” But the President’s expectation of expeditious Senate ‘Consent’ to the treaty was borne of his conviction that it was proper thing to do. After all, his Vice President, John Adams, was also President of the Senate, as provided by the Constitution; a point the President felt the Senate ought to or should have considered in giving expeditious approval of the treaty, particularly of those early days of the Government. But the Senate did not oblige to such ‘smooth talk’ of a “very big man” of the Government, of his expectation of ‘expeditious approval.’ The Senate, however, did, with its expeditious Confirmation of the President’s 1^st cabinet nomination, on September 11, 1789, barely a month following the “cooling,” of Alexander Hamilton, as Secretary of the Treasury. It was incredible that Hamilton’s confirmation was so quick the President’s messenger to the Senate with the nomination’s instruments was on his way back to the Executive Office of the President when the Senate announced the confirmation. What could not, however, be gleaned, as the confirmation record did not show, was whether the dispatch given to the confirmation was in deference to the President, who had had highly privileged pedigree in the War of Independence, as leader of the Constitutional Convention, and as inaugural President of the United States. Or that the deference was to Alexander Hamilton, the nominee with confounding intellectual power, as he demonstrated at the Convention and, as later confirmed by econometrics scholars, the numerically greatest of authors of the 83 federalist treatises, known as the Federalist Papers.

The American Constitutional Convention debates show that many of the notable delegates to the Convention, such as Alexander Hamilton, James Madison, Benjamin Franklin and others, shared aristocratic mien, in their individual ideas of the Senate. Madison began his Senate suggestion with a nine-year term, reasoning that longer senate terms would provide stability, that “if it not be a firm body,” he concluded, “the other [House of Representatives] branch, being more numerous, and coming immediately from the people (our emphasis), will overwhelm it.” Virginia’s Edmund Randolph wanted a seven-year term and believed the primary object of the Senate, the purported Upper House, was to control the more numerous and so called Lower House. New York’s Alexander Hamilton wanted lifetime tenure for the Senate, in same fashion of England’s House of Lords’ lifelong terms, in order to check the “amazing violence and turbulence of the democratic spirit” of the House of Representatives. Benjamin Franklin believed the Senate should represent the nation’s wealthy classes. This was to be to the effect that if no salary were provided, only wealthy persons ought to serve in the Senate. He even warned that if the Convention authorized salaries, the public might suspect it of having “carved out places” for the younger delegates who would be ‘natural’ senators. It was remarkable that when the salary issue was put to vote, Franklin’s salary proposal, for the Senate to be peopled by men of wealth, barely lost. There were five states in favor of his proposal, against six, reflecting the Era’s European aristocratic spirit of the constitutional convention.

To put teeth to their resolve to design the Senate as mainstay and bulwark of the constitutional federal government, under their construction, the Convention delegates, in giving Senators six-year term, caused them to be divided into three, almost equal, groups. Article 1, Section 3, Clause 2. To put this into effect, the United States Senate, on May 15, 1789, divided its members into three groups, for purpose of elections. Under this arrangement, one-third of the senators, as every member of the House of Representatives, stand for election or reelection, every two years, even in a year of presidential election. This design insulates two-thirds of senators from the risk of defeat at reelection, as could happen to the House of Representatives, and the President. By this arrangement, in accordance with the underlying philosophy establishing the later day purported Upper House, preserving its two-thirds at any election year that involves the House of Representatives, and the President, the government of the federation would not be decapitated of wisdom and experience in federal governance, if all were defeated. The depth of statesmanship displayed, not only in the Convention’s articulation, but its inaugural execution, with posterity in mind, in operation of this constitutional engineering, is what is so striking and communicative of altruism and honest service to the new nation state.

Apart from a six-year term, the inaugural Senate divided its members into three parts, for election in two-year cycles, with the effect that the first one-third group of senators submitted to reelection in 1790, the 2^nd  Congressional election year, after inauguration of the new federal government, in 1789 (the inaugural senators were chosen or elected in late 1788, after ratification of the Constitution). Thus, when the next two-year Congressional election cycle arrived in 1790, the Senators seeking reelection to a full six-year term were just two years into their original six-year term. It did not matter to members of  that 2^nd group of senators that they, too, were sacrificing four of their original six-year term of office, as some were defeated in the reelection attempt, or left the senate, outright. The same situation applied to 3rd group of Senators, two years later, in 1792 who conceded two years out of their respective six-year term. By this constitutional arrangement, no one of the inaugural senators of the United States completed his first six-year term of office.

In the carefully and methodically crafted group division of United States Senators, for election, then and now, no two senators from any state of the Union fall into same group. This arrangement enables a state to retain, for seniority, one of its two senators, in the event the other did not return.

Can Nigeria Constitution framers and practitioners of government imbibe the exemplary conduct of theAmerican Constitutional Convention delegates and the inaugural senators? In the present case of ‘review’ or ‘amendment’ of the Constitution of Nigeria, with the entire fracas attending it, it would be expected that the reviewers or amenders would eschew transient, temporal and ephemeral interests, conscientiously look, deep, at the Constitution and undertake to correct some of its fundamental defects that derogate from good governance.

A fundamental defect that derogates from good governance of the Nigerian Federation and of the several states is the Constitution’s provision for total dissolution of all legislative and executive branches, in the federation, every four years. It is sophomoric, if not Neanderthal, to mandate the President, all governors of the several states, all members of both the Senate and the House of Representatives of the federal legislature, all members of the unicameral state legislatures; all to stand for reelection, at same time. What if all were defeated at reelection, as nearly occurred in the Nigerian general elections of 2003! Although the courts and electoral tribunals have stepped in, to desegregate the stupefying election crowding, starting with some of the governors of the several states.  

For the federal legislature, a constitutional amendment was required that would put into effect one-third, or so, of members of the Senate to stand for election or reelection, in two-year cycle. This would leave the other two-thirds, or as the case may be, of the Senate, to remain and maintain institutional resilience, as is also done by Federal State of Brazil. No three of the senators of each of the several states shall stand for election or reelection at same time.

The same should also apply to members of the House of Assembly of a state; a half of its members may, at two-year interval of the constitutional four-year term of office, be insulated from vagaries of election or reelection turbulence, in order to secure some level of institutional integrity and continuity, with seniority of some of its members, to guide the new arriving Young Turks, as resulting from election turbulence, arising from Alexander Hamilton’s feared amazing violence and turbulence of the democratic spirit of the people.

Another needed change; Stanley Macebuh had opined, several times, in his undoubtedly philosophic ruminations on affairs of the Nigerian State, the present ‘constitutional’ absence of bicameral legislature, for each of the several states of the Nigerian federation, is a huge constitutional blunder.

Our foregoing review of the founding and republican intent and purposes of the Senate, as envisaged of design of the United States Constitution, origin of presidential-bicameral constitutional federalism, gives support to dispositive preeminence of the Senate, in protecting national security and state-federal harmony that is implicit in senate confirmation and appointment of a national officer. As the Constitution’s framers demonstrated, in apprehensions against stampede of sweet-talk federalists, among them, into constituting any semblance of imperial presidency, on the heels of their barely decade-old revolutionary disposal  of their colonial yoke, a federal senate is designed to be dedicatedly watchful over unbridled exercise of presidential power. Many of the delegates to the America’s Confederate Constitutional Convention, who designed the Senate as material component of federal governance, even wanted to make the Senate as much as powerful as the President, if not more powerful. This is particularly evidenced in the senate determination, in exercise of its confirmation power, vested exclusively in it, of the suitability of presidential appointment of a ‘national officer.’

As far as the Convention Delegates were concerned, presidential appointment of a national officer of the United States must pass through needle-eye scrutiny of the Senate. The teleological introspection that informs constitutional vesting in the Senate of confirmation power, for appointment by the President of a national officer, is founded on longstanding federalist presumption of maturity, wisdom and resilience of the Senate as federal legislature’s purported Upper House.  First of all, on this matter of Upper House, Lower House chasm of federal bicameral legislature, it is dispositive a puerile ‘constitutional’ controversy I must set forth and dismiss at dawn of this writing. On the matter, it might not be of common knowledge to all concerned that the source of history and usage of this Upper House, Lower House chasm, engendered by hubris and caprice of power, has no philosophical, theoretical or constitutional origin; nor is it supported by praxis of presidential-bicameral federalism. But then, Nigeria is a grand polity of surpluses of ‘constitutional lawyers,’ and ‘constitutional commentators.’ Among them are jobbers who goad the protagonists of the hubristic actors of the two federal legislative aisles onto such fight. And the National Assembly, as a national institution, is starved of necessary and proper offices, of ‘federal constitutional historian,’ ‘federal constitutional philosopher,’ or the like, among its catacomb of committees, offices, etc.