By Kevin R. Kosar
To those who would wax eloquent about the good old days when Congress worked for us: let us not forget Bobby Baker, who died on November 12 at age 89.
John Fitzgerald Kennedy once called Baker "the 101st senator." That is how powerful he was to the chamber's operations. Baker was a Senate aide who on a salary of less than $20,000 per year became a millionaire, a wheeler-dealer who ran a brothel for legislators on Capitol Hill.
Baker declared in his tell-much, 1978 memoir, Wheeling and Dealing (W.W. Norton), of the rampant corruption on the Hill, especially amongst the then regnant Democrats. Being on the take, in short, was the norm. “As they [legislators] presumed their high stations to entitle them to accept gratuities or hospitalities from patrons who had special axes to grind, so did I. As they used their powerful positions to gain loans or credit that otherwise might not have been granted, so did I.”
Things were so bad that when Congress investigated itself it produced a white-wash; and when Baker sat for an interview with the Senate historical office the transcripts were so jaw-dropping that they were not released online. Todd Purdum got a look at them in 2013 and produced this eye-popping article on them. It paints an ugly picture; drunkenness and sexual harassment were common, and corruption was endemic. Here are two excerpts from the full 231-page transcript:
"Baker explained the method used by Walter Reuther, the longtime head of the United Autoworkers Union, to get cash to senators at a time when unions were barred from making political contributions. [Baker stated:] 'He had to be very careful with cash money that came to his union in the United States. But he had no such rule in Canada. So as a consequence, Walter Reuther, probably because of his cash contributions, had a minimum of 20 senators that would vote any way he wanted. … He bought more United States Senate seats than anybody in my life. I’m telling you, it was unreal for Senator Ted Moss [D-Utah] or Gale McGee [D- Wyo.], coming from basically Republican territory, to get elected. Because Walter Reuther gave money. But boy, when I needed to get them to help on a vote, if Walter Reuther called them, I could never change them.'"
"[Baker reports:] '“I was always very fond of Senator Tommy Kuchel [D-Calif.]. He was a fun guy. … Kuchel was having a relationship with his secretary, so he’d come over to me and ask me if I could send a page boy to buy him some rubbers—true story!”
Congressional Camelot it was not.
Bobby Baker is not, however, just a footnote in history. He and those of his ilk present an enduring challenge to congressional reform and self-governance generally.
Baker is an extreme example of the problem of the self-interested staffer---the individual who develops his own interest separate from the public interest, or even the interest of the legislators he is supposed to serve. Baker became the master of many elected officials because he worked harder, knew better how things worked, and by preying upon their weaknesses.
Thus, Baker is relevant to the problem of congressional capacity. Many of us believe the data show the legislative branch has far too few expert staff to carry out its responsibilities. "Hire more and treat them better," we say.
Which, to be clear, would be wise, but this proposition invites the question: "How will you keep them from becoming an interest unto themselves, the ultimate insiders invisible to the public and accountable only to the bosses who depend upon them?
Good question, and one that is worth thinking more deeply about. Madison wrote that a great challenge in representative government was to connect the interests of the man to the prerogatives of the position. Thus, we all ought to think more about how to ensure the interests of staff can be made to coincide with good governance.
Kevin R. Kosar edits LegBranch.com and is the vice president of policy at the R Street Institute.
By Casey Burgat
Even the most casual observer of American politics recognizes stylistic differences between members of Congress (MCs) and how they approach their jobs. Some MCs are more vocal, consistently making the rounds on cable news to explain their positions, while others are more comfortable cracking down on the details of policy and avoiding the spotlight altogether. Still others spend a greater portion of their time and resources fundraising for themselves and their co-partisans.
We know lawmakers differ in their goals, tactics and approaches to their congressional work. But, a new paper authored by political scientists William Bernhard and Tracy Sulkin, with an assist from biostatistics assistant professor Daniel Sewell, reveals that MCs cluster into legislative styles that are far more stable and predictable than many would have thought. In the words of the authors, members “engage in patterns or “packages” of activity that correspond to a particular constellation of goals. These patterns are characteristic of individual MCs, but not unique to each.”
Within their August 2017 Legislative Studies Quarterly article, “A Clustering Approach to Legislative Styles”, the authors show that patterns of member decisions, behaviors, and activities ultimately produce five distinct legislative styles of lawmakers: district advocates, party builders, ambitious entrepreneurs, party soldiers, and policy specialists.
To construct these five typologies, the authors identify 16 “everyday behaviors available to all members” that measure variance in MC activity across a host of behavioral domains. Such lawmaker activities include the number of district offices maintained for each MC, the number of bills and amendments introduced, and the amount of money raised and transferred to their colleagues. These lawmaker inputs are then standardized (which allows comparisons across variables of different scales) and put into indices.
The above table presents the variables used to create the eight indices of legislative behaviors. For example, lawmakers that score high on the “showboat” index are those that give more 1-minute speeches within the chamber and publish more op-eds (bylines). Alternatively, “bipartisan” MCs are those that cosponsor a higher percentage of bills introduced by the opposition party.
After standardizing the indices, the authors then use clustering analysis to identify “groups of observations that are similar to one another and distinct from those in other groups.” This creates distinct clusters of relationships between the indices used and produces the five discrete legislative styles.
The authors’ heat map (below) enables readers to visualize the relationship between each index and legislative style cluster. The lighter the shade, the stronger the connection. For example, lawmakers with a policy specialist legislative style score higher than their counterparts on the policy focus index. Party builders are those that give more in campaign contributions to their party, both to their colleagues and respective party committees.
So then, what is the breakdown in legislative styles? The figure below presents the distribution of legislative styles for lawmakers who served within the 101st to 110th Congresses (1989-2008). The three most common legislative styles---district advocates, party soldiers, and policy specialists---characterize between 26% and 32% of MCs. Party builders represent about 12% of the lawmakers studied, while ambitious entrepreneurs, those MCs that scored high on the fundraising and showboater indices, make up the smallest cluster at 3.7% of members.
Within the paper the authors point out several additional interesting and important features of MC legislative styles. First, once adopted by lawmakers, legislative styles are relatively stable---77% of members retain their legislative styles from one Congress to the next.
Second, nearly 60% of members begin their congressional careers as party soldiers, meaning they vote regularly with their party and are active in fundraising and lawmaking as freshman. As MCs gain seniority, though, the percentage of lawmakers who fall into the party soldier cluster drops, with just 17% of MCs fitting this description by their fourth term. As MCs serve longer, they are likely to transition from party soldiers to policy specialists or party builders. (This finding may have implications for those who advocate for term limits.)
Third, the authors find that the legislative styles of freshman MCs are dependent on a variety of political and demographic factors. For example, freshman MCs with previous state legislative experience are more likely to start their congressional careers as policy specialists, and freshman that represent diverse districts are more likely to take on a district advocate legislative style when compared to MCs elected within homogenous districts.
This research aides our understanding of how and why lawmakers vary in their approaches in executing their responsibilities as members of Congress. While we have always known that their individual goals and institutional factors and constraints help shape their legislative styles, Bernhard, Sulkin, and Sewell’s paper highlights that despite the many differences in member personalities and district attributes, MCs largely operate within the same political context. As a result, legislative behaviors do cluster into distinct and consistent legislative styles.
Casey Burgat is a governance fellow at the R Street Institute.
Daniel Stid, "The Hidden powers of the people’s branch: Passing legislation isn’t the only way Congress can check an unruly president," Washington Monthly
"An additional soft power that Congress must exercise to restore its institutional heft is to fully fund the staff capacity and expertise it needs, in member offices, committees, and nonpartisan legislative support organizations like the Government Accountability Office and the Congressional Research Service. Chafetz notes that legislative reorganization acts passed by Congress in 1946 and 1970 bulked up this capacity, in part to provide for more systematic oversight and investigations of the executive branch. But when the GOP gained its dual congressional majorities in the mid-1990s, they shrank House committee staffs by one-third, disbanded the Office of Technology Assessment, and cut the budgets of the GAO and CRS. In effect, they lobotomized the institution they had fought so long to win control of at the very moment they should have been optimizing its capacity. Congress’s budgets and staff horsepower have never recovered. Until Congress allows itself—and pays for—the quantity and quality of staff and expertise it needs, its members cannot begin to oversee the executive branch adequately and will continue their overreliance on lobbyists for policy advice."
Wendy Ginsberg, The Federal Vacancies Act: FAQs, Partnership for Public Service
Wendy Ginsberg, The Forward-Looking Inspector General, Partnership for Public Service
Kathy Goldschmidt and Lorelei Kelly, "Congress just doesn’t know enough to do its job well. Here’s why," Washington Post
Kristin Nicholson and Travis Moore, "Capitol Hill has a sexual harassment problem," Washington Post
Quorum, "Amidst tax reform debate, House also passes 13 Bills," Quorum.us
James Wallner, "The GOP is in a civil war, and Mitch McConnell is making it worse," Washington Examiner
James Wallner, "Putting individual mandate repeal in the tax reform bill only complicates the GOP's efforts," Washington Examiner
By Tony McCann
Congress is increasingly caught between two powerful desires. First, there is the historic role of discretionary annual appropriations to fund agencies and exercise the “power of the purse” in our checks and balances system. Second, there is the wish to avoid annual appropriations via mandatory funding to lock-in predictable financial support of their priorities.
The result has been the proliferation of forms of appropriations as one side or the other prevails, or compromise is reached, in individual congressional actions.This conflict was exacerbated by the advent of appropriations caps in the 1990’s that strengthened the resolve of interest groups to circumvent the budget process and weakened the Appropriations Committee’s ability to resist the end runs.
The 21st Century Cures Act (Public Law 114-255, 130 Stat. 1033 (2016)), the most recent example of this phenomenon, created yet another hybrid form of appropriation.
The Cures Act authorizes a series of “Innovation Accounts” for the National Institutes of Health (NIH), and the Food and Drug Administration (FDA). For the NIH, the law creates accounts for the Beau Biden Cancer Moonshot and NIH Innovation Projects. For the FDA, the statute authorizes accounts for innovative projects under the agency’s existing authorities. The legislation also establishes an “Account for the State Response to the Opioid Abuse Crisis.”
In total, the act “transfers” (appropriates) $6.3 billion from the general fund to these “Innovation Accounts,” and provides specific amounts for each account for each fiscal year 2017-2026. The Act then provides a series of budget offsets, totaling $6.3 billion, through reductions in Medicare, Medicaid, and other programmatic and managerial accounts.
Funds, however, are not available until appropriated in annual appropriations acts. Thus, the Act transfers (appropriates) $6.3 billion into the various accounts, provides $6.3 billion in offsets and contemplates $6.3 billion in annual appropriations to fund the authorized activities. To assure full funding, the legislation forbids the Congressional Budget Office from scoring appropriations from the funds against the Appropriations Committee’s budget cap.
This complex formulation is the result of the interplay of competing forces inside and outside Congress. According to Kaiser Health News, “The 21st Century Cures Act… is one of the most-lobbied health care bills in recent history, with nearly three lobbyists working for its passage or defeat for every member on Capitol Hill.”
As originally introduced by Congressman Fred Upton, R-MI, the Cures Act (H.R. 6) both authorized and appropriated funds to the Innovation Accounts (i.e. they were mandatory) and this approach was strongly supported by the various advocacy groups. The Senate, however, was concerned by the overall level of mandatory funding and, along with conservative Republicans in the House, wanted the funding made subject to annual appropriations.
In a classic congressional compromise, the advocates got their funding reasonably assured since the appropriation does not count against an appropriations committee’s budgetary caps. The budget and appropriations committees got at least the fig leaf of having the final funding available only after enactment in an annual appropriations act.
S. Anthony (Tony) McCann serves on the faculty of the University of Maryland teaching courses in Public Policy and Budgeting. In addition to his extensive executive branch experience, Tony has congressional experience as the clerk and staff Director of the subcommittee of the House appropriations committee that funds most of the federal government’s discretionary programs in health, education and labor.
 Kevin R. Kosar, “How many types of appropriations are there?” LegBranch.com, March 29, 2017, http://www.legbranch.com/theblog/2017/3/29/how-many-types-of-appropriations-arethere
 S. Anthony McCann, “Forms of Appropriations, A Typology,” Public Budgeting & Finance, Vol. 36, #2 (Summer 2015) p. 125.
 21st Century Cures Act, P.L. 114-255, 130 Stat. 1033, 1039 (Title I).
 Kaiser Health News, “‘Cures’ Act in Congress Heavily Influenced by Lobbyists,” https://www.nbcnews.com/health/health-news/cures-act-congressheavily-influenced-lobbyists-n689531
By James Wallner
Senate Rule XXII requires an affirmative vote of “three-fifths of the senators duly chosen and sworn” to invoke cloture, or end debate, on any “measure, motion, or other matter pending before the Senate…except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the senators present and voting.”
Consequently, cloture is typically understood today as making minority obstruction possible. A three-fifths vote is effectively required to schedule an up-or-down vote on most questions absent the unanimous agreement of all 100 senators. However, ending debate on presidential nominations only requires a simple-majority vote. (Democrats used the nuclear option to reduce the threshold to invoke cloture on most nominees in 2013 and Republican did the same for Supreme Court nominees earlier this year.)
Notwithstanding the recent use of the nuclear option, cloture remains a time-consuming process when the Senate is considering nominations and legislation. For most debatable measures, the entire process requires four calendar days to complete. This gives individual senators the ability to singlehandedly delay the consideration of the majority’s agenda on the Senate floor simply by withholding their consent to expedite the decision-making process. Given this, the number of cloture votes is frequently cited as evidence of minority obstruction.
But there is more to cloture than minority obstruction.
It is certainly not incorrect to view cloture motions and minority obstruction as related. However, such a narrow focus overlooks the many advantages that the cloture rule offers Senate majorities. In July 2012, then-Majority Leader Harry Reid, D-Nev., acknowledged these benefits in an exchange with then-Minority Leader Mitch McConnell, R-Ky. on the Senate floor in July 2012. “The filibuster was originally…to help legislation get passed. That is the reason they changed the rules here to do that.”
The majority, acting through its leadership, can use cloture to structure the legislative process to its advantage. When viewed from this perspective, the incidence of cloture votes also reflects an increase in the influence of the majority leader and, by extension, the majority party, in the Senate’s deliberations.
The evolution in the use of cloture during the second half of the twentieth century increased the influence of the majority leader. Cloture is now utilized preemptively on a routine basis to speed consideration of legislation regardless of time spent on the floor. In this process, the majority limits the minority’s ability to freely debate measures and offer amendments pursuant to the Senate rules. Such behavior may simply result from the anticipation of expected obstruction by the minority party. It could also represent a genuine effort to push the majority’s agenda through the Senate unchanged in a timely manner. The restrictive process could also be utilized to defend carefully negotiated legislation from killer amendments or to protect majority party members from having to take tough votes.
The majority leader frequently uses cloture as a scheduling tool when the Senate considers major legislation. While filing cloture is a time-intensive process, it provides the only clearly established procedure for the resolution of debatable questions in the Senate. Thus, the cloture rule provides a small degree of certainty in an otherwise uncertain environment. The majority leader can use such certainty to his advantage by scheduling votes at the end of the week and immediately prior to a long recess to force an issue. Obstructing senators are less likely to risk the ire of their colleagues by forcing a rare weekend session.
The cloture rule also gives the majority leader the ability to impose a germaneness requirement on amendments to legislation post-cloture. Such a requirement may spare majority party members from having to take tough votes on non-germane amendments. It also protects carefully crafted legislation from poison-pill amendments unrelated to the underlying issue.
Finally, cloture is often utilized by the majority leader for symbolic purposes. By triggering an up-or-down vote on legislation, cloture establishes a clearly defined line of demarcation between the majority and minority parties on controversial issues. Such votes can be presented as take-it-or-leave-it propositions. The proponents of such measures can often portray the senators who vote against them as not supporting the underling legislation.
Without the cloture process, the majority leader would not have these important, albeit limited, tools at his disposal, and he would thus be unable to structure the legislative process to the majority’s advantage using existing Senate rules. When combined with the practice of filling the amendment tree, the cloture process further allows the majority leader to limit the ability of individual senators to participate in the legislative process without having to change the Senate’s rules to reduce their procedural prerogatives.
The fact that the majority leader regularly files cloture early in the legislative process before any actual obstruction can be said to have occurred on a measure is illustrative of the benefits that Senate majorities derive from the cloture process. As the figure below demonstrates, the instances in which cloture has been utilized during the early stages of a measures consideration on the Senate floor have increased dramatically since 2001. This dynamic can be isolated and the majority’s preemptive use of cloture can be more readily discerned by comparing the total number of cloture motions filed in a Congress to the number filed when omitting those motions filed on the first day of a bill’s consideration or very early in the legislative process.
The takeaway from this is that the cloture process may benefit both the majority and the minority parties in the Senate today.
James Wallner is a senior fellow of the R Street Institute and member of R Street’s Governance Project and Legislative Branch Capacity Working Group teams.
House Majority Leader Kevin McCarthy and House Democratic Whip Steny Hoyer invite you to a hack-a-thon!
The event will bring together a bipartisan group of Members of Congress, Congressional staff, Legislative Branch agency staff, open government and transparency advocates, civic hackers, and developers from digital companies to explore the role of digital platforms in the legislative process. Discussions will range from data transparency, constituent services, public correspondence, social media, committee hearings and the broader legislative process...."
Read more or register at https://www.eventbrite.com/e/congressional-hackathon-registration-39626155899
New: Michael Pertschuk's When the Senate Worked for Us (Vanderbilt University Press, 2017).
Excerpt from Lee Drutman's review of the book, "Congress wasn't always this awful," Washington Monthly:
"Congress just has fewer staff positions than it used to. In 1975, Pertschuk’s Commerce Committee had 112 staffers, which increased to 162 by 1985. By 2015, staffing on the committee had fallen to eighty-three. In the Senate, staffing levels stagnated in the 1980s and have declined slowly since. House staffing levels underwent an even sharper decline after Newt Gingrich became speaker in the 1990s and slashed committee budgets. Neither chamber has recovered. Nonpartisan sources of expertise in Congress have also declined. The Government Accountability Office and the Congressional Research Service, which provide nonpartisan policy and program analysis to lawmakers, now employ 20 percent fewer staffers than they did in 1979.
"Some of this is the consequence of party leaders centralizing resources in order to ensure that they control the process. Some is a consequence of conservative small-government dogma and an unwillingness of members of Congress to defend their own institution. The upshot is that more and more policymaking is outsourced to the phalanxes of lobbyists who surround Capitol Hill, since they’re now the ones with the expertise, resources, and time to develop and build support for policies.
"When the Senate Worked for Us is a helpful reminder that Congress didn’t always look the way it does now. A remarkable number of bright and talented young people still want to work in Congress, and do—it’s not that nobody wants the job. But few people stick around like Pertschuk and his Bumblebees did. In part they leave because the pay has gotten worse, and in part because there are simply fewer and fewer opportunities to do much of significance. A gridlocked Congress is a frustrating place to work, as is one in which party leaders dominate policymaking. Change that, and perhaps a new generation of Bumblebees will fly again."
Other good reads include:
Stuart Butler, "Republicans will need to work with Democrats to pass tax reform," Brookings
James Hohmann, "The Daily 202: Republican committee chairmen are retiring in droves, despite unified control of Congress," Washington Post's The Daily 202
James Wallner, "Jeff Flake’s indictment of American politics," Library of Law & Liberty
James Wallner, "Will the reconciliation route work?" Library of Law & Liberty
Donald Wolfensberger, "The dysfunctional Senate," The Hill.