On August 2, Brookings brought together a panel of experts to discuss procedural politics in the early days of the 115th Congress. Focusing specifically on two of the GOP's signature platform promises-health care overhaul and tax reform-the experts examined how effectively the Republican majority is using the tools at its disposal.
James Wallner writes at the Federalist:
[S]enators have proposed various reforms over the years to clamp down on the minority’s ability to delay the legislative process. Most recently, Sen. James Lankford, R-Okla., called for changing the Senate’s rules to make it easier to start debate on the floor. He would do so by making the motion to proceed to legislation non-debatable (i.e., not subject to a filibuster).
But Lankford’s proposal is unnecessary. The Senate’s current rules already give majorities the power to end needless delays. And using those rules to clamp down on minority obstruction will be of greater benefit to Republicans than eliminating the filibuster, which would have long-term repercussions for the institution more generally....
By C. Jarrett Dieterle and Megha Bhattacharya
Earlier this month, Presidential Donald J. Trump signed into law the Countering America’s Adversaries Through Sanctions Act, which strengthened sanctions against Russia, North Korea, and Iran. While some observers speculated that Trump might veto the bill, he was faced with veto-proof majorities in both houses of Congress, which likely forced his hand. But even though he ultimately signed the bill, Trump issued a signing statement—the second of his presidency—claiming that several portions of the law were unconstitutional infringements on his presidential power to conduct foreign affairs.
Presidents have issued signing statements for many reasons throughout history. They can be used to criticize discrete provisions in a law, clarify how the law’s text should be interpreted, or even declare a portion of the law unconstitutional. Starting with President Ronald Reagan, signing statements enjoyed an uptick in popularity among modern presidents, but by the end of the George W. Bush presidency their usage had started to decline again. A new paper by Joel Sievert and Ian Ostrander examines this drop and attempts to uncover its cause.
As Sievert and Ostrander recount, presidents have traditionally used signing statements as mechanisms to assert presidential prerogatives, including assertions that a particular piece of legislation may raise constitutional concerns. While James Monroe was the first president to issue a signing statement, the practice became more consistent during the 20th century. Their use picked up substantially during the 1980s and continued through the 2000s, culminating in a series of mini-showdowns during the Bush administration.
After Bush issued a signing statement for the Department of Defense Appropriations Act for FY 2006—objecting to provisions Sen. John McCain, R-AZ, had inserted into the bill that restricted the use of certain interrogation techniques on enemy combatants—Congress began to more formally criticize and fight back against the use of presidential signing statements. Specifically, Congress started to convene oversight hearings regarding the practice of signing statements and even introduced legislation to regulate the president’s ability to issue such statements.
Sievert and Ostrander note that it was around this time that the Bush administration began to curtail its use of signing statements. During the first 6 years of his presidency, Bush issued 149 signing statements, compared to just 16 over his last two years, a trend which (for the most part) continued into the Obama administration. The authors argue that this decline can be attributed to a simple cost-benefit framework: as Congress began to push back against presidents using signing statements, the costs of issuing the statements increased significantly. As a result, presidents began to decrease their reliance on signing statements and switch to other less controversial tools for advancing presidential prerogatives.
The authors point out that presidential tools are incredibly malleable and can evolve or die out over time, and scholars have suggested that presidents have increasingly relied on Statements of Administration Policy (SAPs)—which are issued while a bill is moving through Congress, rather than once it reaches the president’s desk—to take the place of signing statements.
Given the malleability of presidential tools, it raises the question of whether the debate over formal signing statements is a distraction from larger issues. As noted, presidents issue signing statements for many reasons, such as to influence how a law’s text is interpreted, or to impact how an agency implements a portion of a law. But presidents can advance these goals through other means, suggesting that presidential actions rather than signing statements are where the real focus should be. For example, presidents can use surrogates or speeches to air any objections to a particular law, and they can use tools like SAPs or even internal communications to agencies to influence how a law’s text is interpreted and implemented.
Of course, the most intense debates surrounding signing statements arise when presidents use them to lodge constitutional objections to portions of a law that they don’t otherwise want to veto in totality, and it remains a controversial question whether presidents can merely decline to enforce parts or all of a law they view as unconstitutional. But even in these cases signing statements themselves take a back seat to the president’s actual on-the-ground actions.
As the Congressional Research Service’s Matt Garvey has noted: “If an action taken by a President in fact contravenes legal or constitutional provisions, that illegality is not augmented or assuaged merely by the issuance of a signing statement.” In other words, signing statements themselves matter less than whether a president takes tangible steps to not enforce parts of a law he or she finds unconstitutional or undesirable. This was seen most recently in the Obama administration’s decision not to enforce certain parts of the Affordable Care Act during its implementation stage—an action taken without any signing statement indicating that the president would do so. Garvey continues:
"It can be argued that the appropriate focus of congressional concern should center not on the issuance of signing statements themselves, but on the broad assertions of presidential authority forwarded by Presidents and the substantive actions taken to establish that authority. Accordingly, a robust oversight regime focusing on substantive executive action, as opposed to the vague and generalized assertions of authority typical of signing statements, might allow Congress in turn to more effectively assert its constitutional prerogatives and ensure compliance with its enactments."
Although Congress might be best served focusing its ire on presidential actions rather than statements, it is noteworthy to see Congress standing up against the Executive Branch in any realm. Sievert and Ostrander suggest that signing statements are “one of the most recent fronts” in the power balance between the legislative and executive branch, and their decline shows Congress can act effectively to curb the executive branch. As Sievert and Ostrander put it, the decline in signing statements in the wake of greater congressional push back and oversight “demonstrates that executive power does not increase monotonically or proceed inevitably toward aggrandizement.”
Whether such aggrandizement continues apace will depend on Congress’ willingness to push back against other instances of executive overreach as vigorously as it has against signing statements.
"[T]he Wilsonian model of congressional reform is a dream scenario for the modern presidency. In brief, Woodrow Wilson was the first of many to articulate a parliamentary-style fix for separation of powers system: strong disciplined congressional parties that treated Congress like an “arena” legislature, merely a location of lawmaking, rather than a transformative institution that developed, negotiated, and compromised legislation. Under this view, parties and executive branch leaders would take over those policy functions, while chamber rules would be streamlined and congressional leaders strengthened so that the existing veto points (committees, filibuster, etc.) would melt away and allow for party government. Versions of this argument have circulated in the U.S. consistently since Wilson’s time, and can even be heard today: the path forward from gridlock is to kill the filibuster and strengthen the congressional leaders so they can ram through party policies, ending the gridlock.
"Whatever the substantive merits, this would be a disaster for Congress the institution. Maybe in the days of strong party leaders and a weak presidency, this might have worked. But under the trappings of the modern presidency, there is simply no chance anyone but POTUS would be the party leader in charge of such a majority, and the necessary hollowing out and streamlining of Congress required to grease the skids for party government would simultaneously all but end executive branch oversight. The scary thing for Congress is that the Wilsonian model is not just popular among many observers and practitioners when their party has unified control—that’s understandable situational institutionalism—but also has proven generally popular, especially under divided government. Take Gingrich in 1995. There’s just an incredible lure to centralizing congressional power. Certainly it has some internal positives in being able to move policy and get a party to look discipline and effective as passing legislation. But in order to achieve it, the hallmarks of congressional capacity must be abolished. And thus the Gingrich attacks to weaken the committee chairs, set aside CBO, damage the seniority system, and gut committee staff.
"There’s undoubtedly an allure here. After all, if you could centralize Congress to an absurd degree, you could bring the President to his knees. Centralization could create a more powerful Congress. Imagine a Congress with literally all power centralized in the Speaker. Everyone in both chambers will vote for whatever the Speaker wants. That would effectively abolish the veto, giving the President no leverage in domestic legislation. The Speaker could redesign the bureaucracy at will, adjust all funding levels by fiat, and even remove the president at any time. But it’s a pipe dream: centralization can never practically achieve that, and on it’s way to trying, it ends up killing congressional capacity"....
Read more at http://www.mattglassman.com/?p=4147
Applications for the 2018 Congressional Innovation Fellowship are now open!
"The second cohort built on the success of the inaugural class and went on to serve in the United States Senate under Senator Brian Schatz (D-Hawaii), Ranking Member of the Communications, Technology, Innovation, and the Internet Subcommittee on the Senate Committee on Commerce, Science, & Transportation; Senator Ron Wyden (D-Oregon), Ranking Member of the Senate Committee on Finance; and Senator Ron Johnson (R-Wisc.), Chairman of the Senate Homeland Security and Governmental Affairs Committee. In these placements, the second class of Congressional Innovation Fellows were able to tackle issues from emerging technology and its impact on the United States’ economy to cybersecurity protocol in the legislative and executive branches...."
Read more at https://www.techcongress.io/apply
The revolving door between Capitol Hill and lobbying firms is no secret in Washington. In a new working paper, I place a dollar figure on the value of walking through the revolving door for Hill staff. I find that the lobbying industry financially rewards lobbyists with congressional staff experience to the tune of hundreds of thousands of additional dollars --- depending on who they know.
Readers of LegBranch.com are unlikely to need convincing of the importance of congressional staff in the day-to-day functioning of Congress. Moreover, it should be no surprise that the lobbying industry desires lobbyists with substantial Capitol Hill experience.
My research, however, suggests that certain kinds of Hill experience are more desirable in the lobbying industry, and the most valuable asset for a revolving door lobbyist is their network of personal relationships with other congressional staff.
I measure personal connections by determining all the staff with whom the lobbyist ever shared an office during their tenure as a Hill staffer. I then count how many of these staff are still working on the Hill during the lobbyist’s first year lobbying.
Taking revenue figures reported in lobbying disclosure filings (only for firm lobbyists), I then analyze how much lobbying revenue these lobbyists are predicted to earn, conditional on the number of ties they maintain to other Hill staff and other traits from their time on Capitol Hill (e.g., position title and chamber experience).
The dollar figures are substantial.
An increase in the number of staff connections from 70 to 128 (a one standard deviation increase over the mean) predicts, on average, $155,000 in additional revenue in one year. This figure increases to $360,000 in revenue for lobbyists with certain backgrounds and experience.
These findings have important implications for bolstering congressional capacity and developing expertise in congressional staff.
In a previous LegBranch.com post, Profs. Tim LaPira and Herschel Thomas document some worrying trends associated with congressional staff levels and the lobbying industry. In short, the number of congressional staff have declined over time while the work of the federal government has grown more complex. With fewer staff available to members of Congress, lobbyists are filling the void.
Elsewhere, I document an equally troubling trend: congressional staff pay (adjusted for inflation) has decreased over time.
Taking these patterns together, the implication is that fewer and fewer congressional staff are given more and more responsibilities---all while their pay decreases and cost of living in Washington, DC rises.
Any discussion on reforming congressional capacity must carefully consider the challenges faced by congressional staff. As their jobs get more stressful and they’re faced with little hope of substantial pay increases, the draw from private employers such as lobbying firms becomes difficult to ignore. And the evidence is clear: congressional staffers are financially rewarded based on their backgrounds as public employees. So, the worse the conditions get on the Hill for these staffers, the stronger the draw of the outside option becomes.
Rep. Mark Meadows recently introduced H.R. 2623, which would codify President Donald Trump’s “two-out-one-in” deregulatory executive order. That order requires agencies to eliminate two old regulations for every new one they enact and also establishes a type of regulatory budget that caps the amount of regulatory costs agencies can impose on the economy during a given year.
As R Street has previously argued, codifying executive branch actions is particularly important when it comes to deregulation. Codification ensures that deregulatory efforts are locked in and not subject to reversal by a future president.
Meadows’s bill would ensure statutory lock-in, but unlike past regulatory budget legislation, it stops short of tasking Congress with setting the regulatory budget, instead granting that responsibility to the Office of Management and Budget within the executive branch.
While such a structure may be the best short-term option for codifying a regulatory budget, ideally Congress would be the branch responsible for setting the amount of regulatory costs agencies can impose each year. A further concern could be ensuring that OMB has the resources and manpower necessary to institute the regulatory budget.
Regardless, Meadows bill represents a step toward a more sustainable deregulatory effort.
C. Jarrett Dieterle is governance project fellow with the R Street Institute. His research focuses on strengthening Congress and restoring its role as the First Branch in the U.S. system of separated powers. He also conducts research on regulatory reform, alcohol policy and commercial freedom issues.
James Wallner writes at the Library of Law and Liberty:
"Look behind every major legislative success the U.S. Senate has had in recent years and you will find a small group of senators who negotiated quietly in private. Working under the supervision of party leaders, these groups are tasked by the collective, explicitly or implicitly, with resolving difficult issues, writing legislation, and helping to structure the process by which the Senate considers important bills.
"They resemble scrums in rugby. They are highly competitive, also decisive (eventually), and also opaque to anyone outside of them—which happens to be most everybody.
"The Oxford English Dictionary defines a rugby scrum as a formation used to restart play. Once one has taken shape, a ball is tossed into the middle. The other players on the field watching their teammates struggle over it have no direct knowledge of what is happening inside the scrum. Eventually, the ball emerges, at which point it is picked up by a player who charges down the field toward the other team’s goal line.
"Instead of competing over a ball, the members of a senatorial scrum are crafting legislative proposals that can make it through the chamber largely unchanged. And just like the non-participating rugby players who hang back from the action, waiting for the ball to come out, the other senators try to discern what is happening from the outside, waiting for an agreement to emerge so that they can cast their votes.
"Senatorial scrums are useful in dealing with controversial issues in the context of must-pass legislation. But this has distracted from the fact that their regular use undermines the Senate’s deliberative function. Making decisions in this way inevitably limits the policy ideas given serious consideration to those supported by the scrum’s members. Importantly, it entails a floor process (by which the full Senate considers compromise agreements) that is structured so as to obstruct other members from amending the bill. Restricting the policies considered in this way makes it more likely that the bill will not be fully vetted before it is signed into law."
"The Bipartisan Policy Center’s Healthy Congress Index provides Americans with crucial metrics for evaluating Congress’s ability to effectively legislate and govern. It compares results against past Congresses and will be updated on a quarterly basis. The index represents a new, long-term effort to bring accountability to Congress and answer the question: how is Congress governing?
"The period covered by this installment is January 2017 through June 2017 and the numbers presented here are cumulative.
"New in 2017, two additional elements of the index will further examine how well the current Congress is functioning relative to those in the past. We will track 1) programs receiving appropriations after authorizations have expired and 2) progress on the budget and appropriations processes...."
Read more at https://bipartisanpolicy.org/congress/#working-days
David Frulla writes in The Hill:
"Congress' power and authority to oversee the executive branch's execution of laws date back to 1792 when then-Rep. James Madison led the first congressional oversight investigation. And the legislative oversight's historical antecedents stretch back even further, beyond the Enlightenment in the late 1600's through the early 1800's.
In fact, the Enlightenment idea of the consent of the governed animated in large part both the Constitution and Declaration of Independence. It was James Madison in Federalist No. 39 who fortified the notion this new government would not only be 'of the people' and 'for the people' but answerable to the people in varying, strategically differing ways. He thus explained the 'House of Representatives [would] derive its powers from the people,…the Senate, its powers from the States,…and the executive power [would] be derived from a very compound source....'”