Political Institutions

The omnibus is here! And some things to clear up about congressional budget politics.

By Joshua C. Huder

Originally published at the Government Affairs Institute at Georgetown University House and Senate leaders will push through an omnibus spending package this week. The bill combines 11 appropriations bills for the final months of the FY2017 calendar. Democrats walked away with some big wins in the omnibus. They struck over 100 policy riders, resisted non-defense cuts proposed by President Trump, managed to block funding for President Trump’s border wall, among other items.

However, their leverage in the budget process is being badly misunderstood. Many pundits are suggesting that fractured Republican politics are giving Democrats leverage. And while that certainly helps, it underestimates the institutional features in place that will bias budgets in favor of the minority party no matter which party is occupying it. In other words, it’s not just fractured Republican politics. It’s also existing law. So let’s look at the omnibus and how it shapes up, examine why Democrats were successful, and explain the state of play for FY2018.

The omnibus spending bill is the culmination of the 2015 Bipartisan Budget Act (BBA), negotiated by then-Speaker Boehner, Majority Leader McConnell, and then-President Barack Obama. In other words, the $1.07t funding level was negotiated more than 2 years ago. Democratic finger prints are all over this budget. To some degree the omnibus is not necessarily an example of Republican weakness. Rather, it’s an example of the fact that this deal was written 2 years ago when Democrats controlled the White House. The only reason we’re still talking about it is because after the November election, Republicans decided to put in a stopgap continuing resolution (CR) to allow President Trump to put his imprint on the budget.

That was a dramatic mistake for a couple of reasons. First, defense and nondefense numbers were already written in law by the 2015 BBA. So whatever imprint President Trump and the 115th Congress wanted to make on FY2017, they had to do it within the existing framework negotiated by the 114th Republican majorities and President Obama. If Republicans wrote a bill that broke those caps, it would trigger another round of automatic cuts. Any appropriations changes would at best play around at the margins because defense and nondefense numbers for this fiscal year are already set in law. You would need to write a new law to change them, a lift that would have required an enormous amount of political capital which simply doesn’t exist when Congress is also trying to rewrite the most substantial healthcare policy in a generation.

This limited the majority’s ability to reshape funding for new things. If they wanted to cut agencies’ funding to make room for other priorities, they’d have to do it through the 2015 BBA defense and nondefense partition. In other words, to make room for a border wall, they would have had to find it in the nondefense section of the budget. But making room for priorities even within the nondefense segment of the budget is very difficult.

This brings us the second problem Republicans faced for FY2017: all appropriations bills still go through a filibuster in the Senate. If they wanted to cut EPA, NIH, State, and other agency budgets to make room for a border wall, Republicans would certainly face a Democratic filibuster. This assumes that all Republicans would support deep cuts to other nondefense agencies, an assumption that ignores the strong bipartisan support for many agencies on the nondefense side. Simply gutting some agencies to make room for other priorities ignores the realities of appropriations politics in both parties.

All of this stems from the heart of the problem. Republicans cannot reorient government by working under old budget numbers. They need a new budget. This would normally make FY2018 a critical opportunity for Republicans to remake government in their vision. In a normal budget year, Republicans would write a new budget, boost defense spending and cut nondefense through the budget process, and then write their appropriations bills to those numbers.

The problem with this is this is not a normal budget year. The sequestration caps put in place by the 2011 Budget Control Act go back into effect next year, capping defense spending at $549b and nondefense spending at $515b. Put differently, defense and nondefense spending will get an across the board cut by $2b and $4b, respectively, if Congress doesn’t ease the BCA caps (for the third time). Republicans will have to amend sequester if they want to fundamentally restructure government spending.

The irony here is if sequester had not been allowed to take effect in 2013, Republicans would be in a very strong position to fundamentally reorder government spending. They could simply pass a new budget by majority vote and rewrite defense and nondefense budgets without Democratic input. Instead, Republicans handcuffed future Congresses by triggering sequestration. The budget process cannot amend the BCA. So Republicans will again have to change the law, which will require 60 votes in the Senate, which means Republicans will again be negotiating with Democrats in FY2018. And all of this is because they allowed sequestration to take effect in 2013.

Sequestration, a policy Democrats loathed when it went into effect, is ironically their greatest ally. It forces the new Republican majorities to rewrite the law before they can pass spending bills. That requires the support of at least eight Democrats in the Senate. Democrats’ leverage will continue to give them outsized influence in the budget and appropriations process in FY2018. As long as sequester is in place, it gives the minority party leverage in budget and appropriations.

If history is any indicator, this will push back negotiations all the way up to the October deadline where Congress will either address BCA caps and sequester head on or, more likely, negotiate another two-year deal. This week Congress will pass the easy bill. It gets much harder later this month when the FY2018 budget cycle starts.

Joshua C. Huder, Ph.D., is a senior fellow at the Government Affairs Institute.

The Fallout: Does Boehner's Absence Change Anything?

Speaker John Boehner finally succumbed to the three-year pressure campaign waged by House conservatives. As politically weak as Boehner was in his conference, he was never going to be forced out of his position. He’s powerful enough that he could leave on his own terms. On Friday, he did just that. The question now is: where does that leave a divided and unwieldy House majority? Over the next month this potentially untethers Speaker Boehner from the hard right. A short-term continuing resolution (CR) will pass next week and potentially set the stage to pass the Highway Trust Fund bill and other priorities currently stuck in limbo. In short, Boehner is free to do what he has done for the last five years: enable Republicans to get out of their own way on what should be easily passed bills. Boehner has deftly moved his conference around problems that truly threatened the Republican brand and fundraising from the Doc-Fix, the Violence Against Women Act, trade promotion authority, to the debt ceiling and his handling of the shutdown in 2013. In his last month, that will likely remain his focus. This time, however, he likely won’t feel tied to demands from the right that could endanger these deals or the party.

Once he leaves Republican politics become trickier. Conservatives waged this rebellion, finally succeeding after nearly three years. They will want a successor with proven conservatism or at least gain assurances their demands will gain more traction in the legislative process. In this scenario more distant obstacles may become even more difficult. Critical legislation such as the December continuing resolution and the debt ceiling may become the battlefield in which newly emboldened conservatives will challenge the rest of the party to follow their lead. The problem is the structural features of government that have prevented conservative wins in several showdowns remain in place. The President will still veto any legislation that defunds Planned Parenthood, undermines Obamacare, undermines non-defense programs in unacceptable ways. Senate Democrata will still filibuster spending bills. 

In other words, this potentially makes an already bad situation worse in the time remaining in the 114th Congress. It’s unclear who will succeed Boehner, how they’ll manage the factions within the conference, and if they can chart a path toward victory in 2016. However, removing Boehner won’t change the broader dynamics causing dysfunction. It arguably makes them worse.

Conservatives won the battle they’ve been fighting for years. However, it’s unclear they’ve furthered their cause in the war.

Why the House is to blame for the Senate’s polarization

In the American political lexicon, the Senate is said to possess “coolness” and “wisdom.”  Words like “decorum,” “comity,” and “respect” are frequently used to describe the institution as well.  In recent years, however, cracks have appeared in the Senate’s high-minded veneer.  For example, in July of this year, Ted Cruz was admonished by his own party for calling Majority Leader Mitch McConnell a “liar” on the Senate floor.  A number of political observers have remarked that senators seem to be behaving more like the “uncivilized masses” in the House of Representatives. Academic studies confirm that the Senate has become a more extreme place over the past two decades.  By just about any measure, the Senate has polarized ideologically at about the same rate as the House.  According to political scientist Keith Poole, both chambers are more polarized than at any period since the late 1800s.  What’s puzzling about the synchronous polarization of the House and Senate is the fact that the chambers should respond the polarizing pressures very differently.  With longer terms and more diverse constituencies, senators should move toward the extremes at a much slower rate than the representatives.

All this begs the question: Why do we see similar patterns of polarization in both chambers?

Although the House and Senate are quite different from electoral and institutional standpoints, they share one important thing in common: the same members.  In the current Senate, about half of senators first served in the House.  Examples include staunch liberals like Barbara Boxer and Dick Durbin as well as staunch conservatives like James Inhofe and David Vitter.  Notably, this seems to be a modern development.  In the 80th Congress (1947-1949), just 19 percent of senators came from the House.

Can the increase in the volume of shared members explain the Senate’s polarization?

In a forthcoming paper, I argue that it can (see here and here).  In the paper I argue that lawmakers learn extreme partisan behaviors in the House and simply continue those learned routines after winning election to the Senate.  Although this theory has intuitive appeal and fits the timing of the Senate’s polarization, it is unconventional in the congressional literature.  Indeed, virtually all studies view polarization as a function of lawmakers’ rational or goal-seeking actions (designed to secure preferable policy outcomes or win re-election).  In contrast, my work theorizes that lawmakers’ roll-call behaviors are also the product of social-psychological processes.

I propose that there are two main ways this “partisan learning” happens.  First, political parties use their organizational powers to intentionally socialize junior members.  What junior members learn in this context is the utility of party loyalty and a norm valuing teamsmanship.  While uncommon in the contemporary congressional literature, research by Sinclair, Loomis, and Dodd make similar arguments.  Second, lawmakers learn partisan behaviors as a by-product of the House’s hyper-partisan environment.  Political scientists Arthur Lupia and Matt McCubbins summed it up best: “Legislators, like most people, learn by watching what others do and listening to what they say”.

I test the theory of partisan learning in a series of statistical models.  In simple terms, the models tell us why some senators are so extreme in their voting behavior and others are relatively moderate.  A key aspect of these models is that they account for the “usual” explanations of polarization (things like party identification and state characteristics).  More importantly, however, they account for possible selection effects caused by electoral dynamics (maybe extremists are more likely to run for the Senate?) as well as a senator’s ideological extremism before they won election to the House.

Ultimately, the results validate the theory that senators adopt partisan behaviors in the House and continue those behavioral patterns after winning election to the Senate.  Among results, I find that senators who came from the House display greater ideological extremism if they (a) served in the House within an extreme partisan cohort and (b) won election to the Senate after representing a partisan district.  In other words, ideological extremism is fostered when lawmakers are surrounded by extreme co-partisans as well as when they represent extreme constituents.

Figure 1 shows just how substantively important the two factors are for Democrats and Republicans.  In the figure, the causes of ideological extremism are broken down by era according to whether a senator served before Newt Gingrich was elected in 1978, during Gingrich’s time in the House, and after Gingrich resigned in 1999.  The blue “base” causes of a senator’s ideological extremism represent the “usual”.  Needless to say, factors like party identification and state characteristics have the biggest overall effects in both parties and in every time period.  At the same time, however, we can see that the effect of a senator’s House cohort (red bar) is quite large as well.  This effect is most visible on the Republican side in the post-Gingrich era, where the cohort effect accounts for roughly 35 percent of a senator’s ideological extremism.

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It is important to note that my paper is not the only one that documents these patterns.  Sean Theriault and David Rohde were the first to report that the replacement of moderate senators by extremists from the House has been a major cause of the Senate’s polarization.  And Theriault followed up on that article with an excellent book on the same topic.  But like most landmark studies, their work raised additional questions.  Namely, neither project was able to isolate what--exactly--happens in the House that causes ideological extremism in the Senate.  In a review of Theriault’s book, political scientist Gerald C. Wright noted the following:

“More could be done to address the question of why these senators are so different. Theriault deals with the question indirectly in some rough quantitative controls for state characteristics, but he does not confront the question head on.”

In both projects, Theriault and Rohde refer to the House’s effect on Senate polarization as a consequence of a peculiar cohort of lawmakers they call the “Gingrich Senators”.  In simple terms, their work identifies Republican senators who came from the House after Gingrich’s election (from 1978-2010) as key to explaining the Senate’s polarization.  My results, by comparison, show that the underlying causes of this effect are not isolated to Newt Gingrich or the Republican Party but are, instead, part of a more broadly generalizable behavioral process.  In fact, some of the most partisan senators in the past decade (Jim DeMint, Pat Toomey, and David Vitter) entered in the House after Gingrich had resigned.

In the end, I prefer the term the “Housification” of the Senate.  It may seem like academic quibbling over vocabulary, but the distinction has important implications for conveying why the Senate has polarized as well as our theoretical understanding of legislative behavior.  In my view, one of the biggest takeaways from both projects is that legislative behavior is not just the product of rational, goal-seeking motivations.  Congressional behaviors--like ideological extremism--can be learned as well.

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Note: Another version of this post was published on the London School of Economics and Political Science's blog.

Left or Right? Who's further from the middle?

Polarization is commonplace in American politicsBoth parties are moving away from the middle. The debate often boils down to who is polarizing the most/fastest. New York Times opinion writer Peter Wehner sparked an interesting debate when he claimed, “in the last two decades the Democratic Party has moved substantially further to the left than the Republican Party has shifted to the right.” Jamelle Bouie’s excellent response at slate essentially illustrates that a lot of political science does not support that claim.

Both make good points about polarization in American politics. However, in many respects they are talking past one another. Wehner’s piece highlights the issues Democrats adopted in recent years.  And as he points out Democrats are undoubtedly more liberal on gay rights, drug legalization, and climate change, among other issues. Bouie, on the other hand, bases his argument on measures found congressional research. He highlights that recorded votes illustrate a much different picture than the one Wehner paints. Despite some excellent points there is an important dynamic between the issues parties champion and votes on the House and Senate floor that neither author addresses.

The argument for asymmetric polarization originated from recorded votes taken in Congress. Among the first to point this out were Thomas Mann and Norm Ornstein, who argued asymmetric polarization is obvious and primarily occurs on the right. Over the past four decades the average Republican’s vote score has unquestionably moved farther right than Democrats have pulled left.

polar_house_means_2014

But this isn’t the whole story. To grasp asymmetric polarization you have to understand how roll call votes occur. And in this context we see a much muddier picture.

Roll call votes are both a very good measure of polarization and a clearly biased sample. They’re biased toward the decision-making of the representatives or senators that control the floor agenda. If a bill can reach the chamber floor, it can receive a recorded vote. If it can’t, then it doesn’t. And to over-simplify legislative process into a single sentence: party leaders dictate the agenda. Polarization found in roll call scores is in large part a function of party leaders’ policy priorities, political necessities, or electoral incentives. They can prioritize or deemphasize divisions between the parties depending on the interests and incentives they choose to pursue. As several scholars point out, today party leaders are far more interested in dividing the parties than they have been since the early 20th century (see Frances Lee’s Beyond Ideology for a great description of this).

The issues majority party leaders bring to a vote affects polarization and how far left or how far right they diverge. So the question we should be asking is: what issues are party leaders deciding to vote upon?

Laurel Harbridge recently tackled this question in her book, Is Bipartisanship Dead? She finds that since the mid-1970s party leaders having schedule more partisan votes. Despite the fact that bipartisan legislation is still introduced with impressive frequency, those bills receive roll call votes far less frequently. A statistic that really sticks out in her research, in 1974 over 70 percent of all roll call votes were on bills cosponsored with a significant amount of members from both parties. By 1995, just 27 percent of roll call votes had significant bipartisan support. Congressional leaders increasingly bypassed bills with bipartisan support, often for partisan alternatives on the same issue.

If you take this agenda effect with other studies emphasizing how procedural control and votes influence polarization (research done by Smith, Carson, Crespin, Madonna, Roberts, Theriault, and others), there is a body of evidence suggesting that the issues and bills party leaders prioritize are a significant culprit in congressional polarization. And further, Republicans are prioritizing partisan bills and votes with greater frequency than Democrats.

This isn’t wholly surprising or even illogical. Republican congressional leaders have much greater incentives to pursue partisan policies. The Republican base - with hugely safe, homogenous districts coupled with the money, organization, and impressive influence of right-wing Super PACs and groups with the power and willingness to primary moderates – is simply not mirrored to the same extent on the left.[1]

So while the 111th Congress passed a huge swath of Democratic priorities, on the whole Republicans have more incentives to vote and pass partisan bills. And as a result, vote scores illustrate Republicans have been more prone to move away from the middle than Democrats over the last few decades.

There are a lot of reasons both parties are moving away from the center. But despite the fact Democrats take more liberal stances than they have in the past, those stances receive less attention on the chamber floors relative to the more conservative positions in the Republican Party.

[1] In this vein an interesting test for Republicans will come in 2016. Speaker Boehner and Majority Leader McConnell have prioritized several significant bipartisan bills in recent months. This tactic has illustrated a willingness to govern but runs counter to the tactics employed the last four years that brought Republicans electoral success.

Political parties are often too convenient an explanation

Teagan Goddard asked the question, can politics be "unbundled" from political parties? In other words, if there is a market where we can unbundle phone and internet service, why isn’t there a market to unbundle politics from parties? Hans Noel wrote an excellent piece describing how the electoral and governing process inherently bundles politics for us. It is a process that simplifies our system but also, in Noel’s piece, ties politics to the parties. Both pieces are excellent reads with some great points. But at what point do we risk overstating parties’ influence on politics? A common, underlying thread to both these pieces assumes that “unbundled politics” – politics that is distinguishable, or not driven by, party politics – do not or cannot exist in American politics.

This strand of thought often glosses over how unbundled American politics actually is. Politics is about coalitions, but it’s not always about party coalitions. They are, without question, the dominant political coalitions and polarization is the defining narrative of our time. However, we often use these reasons as intellectual crutches and in the process we unfortunately obscure an important and nuanced understanding of representation, particularly in Congress.

There is a good reason political parties are the focus of most observers’ explanations. Falling back on parties as the “bundles” of politics works most of the time. To borrow an example from Hans Noel’s post, the Affordable Care Act (ACA) is either something you like or something you don’t. Today, those that dislike the ACA are nonetheless forced to live with it. And often one’s partisan preference determines their opinion about the ACA, or vice versa. On the big votes, like those to enact the bill into law, political parties perfectly explain the divide on expanded healthcare coverage.

But this black and white choice also oversimplifies the problem. What’s most troubling is it glosses over the geographic, demographic, and ideological differences that render a more rich and complex picture.

For example, millions of people dislike the ACA but also overwhelmingly support many of its provisions. On the other hand, several provisions are also unpopular on a bipartisan basis. Eighty-one Democrats, a full 42% of the House caucus, voted to block the individual mandate in 2011. A repeal of the medical device tax received 37 Democratic votes in the 113th Congress. Unsurprisingly, most members who voted against the ACA’s provisions represented more moderate districts.

Factors other than partisanship have divided and continue to divide members in Congress. The presence of two parties in Congress does not inevitably lead to partisan problems or issue breakdowns. Democrats frequently get the credit for civil rights legislation because they were in power when it passed. But Republicans supported civil rights legislation in the House and Senate in higher percentages than Democrats throughout the 1950s and 1960s. In fact, an entire generation of Congress was defined by a majority party divided on major issues like civil rights, education policy, and energy regulation, just to name a few.

Today, despite better sorted partisan and ideological coalitions, we still observe these patterns. The majority party is divided on foreign trade, government spending policy, the deficit, government surveillance and privacy, the Export-Import Bank, immigration, prison reform, and the list goes on.

We may only have one president, one Congress, and two parties but that Congress and those parties are remarkably complex. The original FARRM bill vote in 2013 illustrated rural Democrats with farm heavy constituencies were willing to stomach more than $30 billion in cuts to SNAP, a major party priority. Congress is currently debating trade promotion authority (TPA) that, if enacted, would divide moderates in both parties from their less moderate co-partisans.

Votes that highlight demographic and ideological divisions within the parties are less common but nevertheless present. Today, it’s just harder for the ideological, geographic, and demographic outliers in each party to differentiate themselves. Leaders press for unity, not discord. As a result, outliers have a difficult time getting their time in the legislative sun. For example, it’s much harder for members like Rep. Justin Amash (R-MI) to receive the green light on his amendment that almost perfectly divided both parties. It happens. It is just much less frequent.

In other words, there is ample evidence that politics is already unbundled. Senators Harry Reid, Joe Donnelly, Jon Tester, and Joe Manchin are all Democrats with high ratings from the NRA. Representatives Rodney P. Frelinghuysen (NJ), Robert Dold (IL), Greg Walden (OR), Richard L. Hanna (NY) are all Republicans who have taken pro-choice positions. On issues like banking regulation or energy policy, the list of elected officials breaking from their parties multiplies by at least three. They break from their parties for good reason. If they didn’t, they probably would not be in Congress.

America’s governing and electoral institutions have created strong incentives to toe the party line. The idea that “unbundled politics” do not or cannot exist glosses over the most interesting political and representational issues of our time. Today political parties explain a lot in the American political system. But at times its ubiquity is overstated. And unfortunately, this intellectual shortcut can undermine important examples that illustrate exactly how geographically, demographically, or ideologically diverse representation in Congress can be.

What does DHS/immigration tell us about the power of Congress and the President?

Institutional power is more of an academic topic. Nonetheless, it has enormous ramifications. The current immigration debate is a great example of that. Despite the rhetoric around the DHS debate, America has never had a dictator president - the current president included. However, the fight for power in the separation of powers (i.e. How big should the presidency be?) is real. The DHS/immigration debate is an interesting look into that struggle.

Much of the modern presidency’s power stems from the type of actions we are observing in the immigration debate. Reinterpreting existing law, exercising discretion on the many responsibilities under the purview of the executive branch, or writing orders and directives, presidents have ample opportunity and authority to reshape national policy unilaterally. These actions pale in comparison to actually creating law, as Congress does, but they are important nonetheless. And while Obama’s immigration action falls within precedents set by former presidents, Congress is well within its constitutional rights to correct presidential overreach.

However, Congress rarely curtails presidential unilateral actions. There have been several attempts but few are successful. The best attempt was the 1974 Budget Control and Impoundment Act, establishing the modern budget process. After Nixon impounded congressionally appropriated funds, Congress established processes and deadlines to take back budgetary control. It also established a reconciliation process that could circumvent filibusters to restore budget harmony. That process could be used to respond to executive actions if those actions fail to follow congressional intent.

As we see today even Congress's most powerful tool cannot address executive action. It would take some creative legislative drafting in order to use reconciliation to reverse Obama’s immigration action, which prohibits provisions that have no budgetary effect. Which means today’s congressional stalemate boils down to one of two possibilities. Either it can’t be done or Republicans plan on using reconciliation -which only allows a limited amount of bills per year - for another purpose.

This is the problem Republicans currently face. They cannot circumvent the supermajority requirements of the process. Even if they could, there is no guarantee Republicans could find a Senate majority once the symbolic nature of the cloture vote was removed from the scenario. Should three moderate or border Republicans join Senator Dean Heller in blocking the bill, Congress’s response would still be deadlocked.

Historically Congress’s power has been hampered by its own processes and the political realities of forging majority coalitions. It’s often very difficult pass bills through both chambers. It’s particularly challenging to find majorities to challenge unilateral executive actions that fall within the previously accepted scope of executive authority. It’s nearly impossible to find a supermajority to do that. Without a Watergate-like scandal, where illegal actions clearly occurred, Congress rarely has the ability to tame America’s 80-year tradition of expansive executives.

The ambiguity of Article II means that presidential power open to interpretation, which is another way of saying that presidents' unilateral power is mostly anything that Congress has not expressly prohibited. Given the inherent difficulties of lawmaking and the supermajority processes that have always existed in Congress, historically those prohibitions have been scarce.

As Jon Bernstein points out, every modern president overreaches at some point. With a hamstrung legislative branch, that’s likely to continue.

The Senate’s Return to Regular Order?

For the past week, Majority Leader McConnell experimented with an open amendment process in the Senate. Members offered amendments on everything from climate change, to federally protected land, to limiting the President’s ability to initiate and sign bilateral agreements with foreign countries. The broader question is can McConnell take a positive step toward a functioning Senate?

There are some positives to take away from the past week. Debate has gone smoothly for the most part. Senators have worked together on several fronts. Murkowski and Cantwell, the Chair and Ranking Member on Energy and Natural Resources Committee, have worked behind the scenes to find amendments both sides are willing to tackle. As a result the Senate has debated subjects such as climate change, potential limitations on informal and formal executive treaties, taxation of tar-sands oil, and topics such as private property versus eminent domain. Willingness to work through regular(ish) order has reinvigorated debate and deliberation over the last week. As a result the Senate has voted on more amendments in the last week than all of 2014.

However, it is not all good news. Yesterday some filibusters began to emerge. Several amendments were held to a 60-vote threshold, meaning that not all Senators would allow those votes unless there was an implicit understanding that they wouldn’t pass. As the afternoon turned into the evening, those the seemingly sparse filibusters turned into outright stalemate. The process came to a halt. In what appeared to be frustration or impatience, McConnell killed the pending amendments and filed cloture. This essentially guarantees the bill will move toward passage next week with few if any additional amendment votes. To an extent, the Senate we’ve come to know over the past few years reemerged.

Obviously the Keystone debate has been a more robust one than those in the 113th Congress. But last night highlights just how fragile the process really is. The majority opened up the process to allow the minority to participate. And as has been common among recent congressional minorities, they have wanted more time, more debate, and more amendments. In the eyes of the majority, they want to abuse their privileges. As a result the majority shuts down the process. Steven Smith, the Kate A. Gregg Distinguished Professor of Social Science at Washington University in St. Louis, refers to this erosion of cooperation as the Senate Syndrome, and it appears to have struck again in the third week of session. A week-long debate over amendments to an important bill is a positive step. But it is clear the process is fragile and trust between the parties is not high.

Lastly, Keystone is a unique case. High public visibility and bipartisan support grease the wheels of cooperation. In other words, it’s the type of bill where this kind of bipartisan process can flourish. However, not all issues enjoy broad support. And at some point, likely soon, stronger opposition will reemerge. At that point we’ll see if McConnell’s experiment with regular order is sustainable or if the Senate Syndrome will erode the good will that was built this past week.

Update: Great video of McConnell shutting down the process Thursday night.[embed]https://www.youtube.com/watch?v=yl4neFHnk84#t=147[/embed]

Can Republicans roll back Obama’s executive order? It's hard but not impossible.

Republicans have rallied behind the idea of defunding Obama’s executive order on immigration either through the omnibus or a rescission – a bill passed after an appropriations bill. However, this plan ran into some speed bumps. As Jennifer Hing, House Appropriations Committee spokesperson, points out, Citizen and Immigration Services (CIS), the agency that processes immigration petitions and deportations, is funded through application fees. That means its funding is not subject to annual appropriations bills. And as a result, there is nothing Congress can do to defund the executive order. However, this talking point misleads many into thinking that Congress is helpless, which is categorically wrong. Republicans could pursue several different avenues. They could attach legislative language onto an omnibus or other appropriations bill. This is a routine process that occurs basically every time an appropriations bill is passed (see here under “Legislating on Appropriations”). Even though Congress has a rule prohibiting legislative language in appropriations bills, they nonetheless ignore it all the time.

There are other ways to respond as well. The Budget Committee could grease the wheels and push the bill through the reconciliation process. Legislatively, some piece of this bill would have to do with revenue (fees), though not all necessary provisions would likely be able to pass under reconciliation. Finally, the most obvious solution is to pass a bill. Congress could simply prevent CIS from executing the order.

There is a catch, however. Any process the House could use would be subject to a 60-vote threshold in the Senate. Either the Senate would have to agree to waive the rule against legislating on appropriations, waive the Senate Byrd rule, or overcome a filibuster. That is a difficult but not impossible task. Republicans are hesitant to take this path because in order to get 60 votes they would have to pull back on reversing the executive order.

There is a deeper, underlying point that uncovers Republicans’ strategic motivations. This is not a case of inability. This is a case of inaction. There is nothing procedurally hindering Republicans from pursuing a response to Obama’s executive order. They are not held back by process. They are held back by strategy.

The real reason most Republicans do not like these options is there is no guarantee the bill they want to offer the President could get to his desk. There would be no grand showdown forcing Obama into the awkward situation of choosing between his executive order or funding the government.

In other words, without non-filibusterable, must-pass legislation, Republicans cannot force the president into accepting their terms by presenting him with a catastrophic consequences if he doesn’t. And as a result, we see a lot of hyperbolic rhetoric without much motivation to back it up with legislative effort.

Could Boehner be the first Speaker to Win Seats and Lose Job?

The Fix recently wrote about how “A 2015 rebellion against John Boehner would be unprecedented.” In the piece Philip Bump argues that “no speaker has overseen a pick-up of House seats and subsequently lost his job.”

Setting aside problems in closely connecting congressional elections and the speakership election across this period,* this statement really hangs on the definition of “losing the job” in this context. Bump is essentially arguing that aside from losing their majority, Gingrich is the only sitting Speaker to be pushed out of office. That is not entirely true. In fact, most retiring speakers face revolts of varying degrees and momentum at the time of their retirement. No sitting speaker was literally forced out through a vote. But as I argued before, most retire before a revolt comes to fruition.

For example, Speaker Reed stepped down in 1899 amid multiple rumors that many in his caucus were plotting against him. Henderson faced overthrow rumors throughout his tumultuous four year term. McCormack faced serious challenges to his speakership from young liberal Democrats. He and O’Neill actually faced challengers for the top spot in their final term. Though they won those battles it hastened McCormack’s retirement the following year and likely reaffirmed O’Neill’s decision, since he already announced he would retire in 1984 after one final two-year term. And to a lesser extent, many Democrats were frustrated with Albert’s anachronistic post-war (as in WWII) leadership style, though he did not endure overthrow rumors to the same degree.

What set Gingrich apart from his predecessors was timing. He faced the same overthrow rumors leading up to the 1998 Election. The difference between Gingrich and the rest is he chose to wait until after the election to announce his retirement. In sum, “losing the job” through early retirement is hardly unprecedented. In fact, it is more the rule than the exception.

The second part of Bump’s argument states Boehner would be the only speaker to lose his job after his party picked up seats. This isn’t entirely accurate either. The chart below lists House Speakers since 1900 who did not die in office, did not seek higher office, did not lose their majority, and did not resign due to scandal. This narrows the field to only those speakers who had the option to stay and run for speaker again. In the 20th century, this reduces the list to five speakers.

Speakers who did not die in office, seek higher office, or resign due to scandal
Announced Retirement House Seat Change in final Election
Henderson September 1902 +7
McCormack June 1970 +13
Albert June 1976 +0
O’Neill Oct/Nov 1984 – Retired 1987 +4
Gingrich November 1998 -3

Since 1900, three out of the five speakers who had the option to run for another term gained seats in the election following their retirement. In Albert’s last term as Speaker, the parties drew a dead heat. Again, Gingrich is the exception. His party lost three seats and he waited to retire until after the election. For the rest of the Speakers, their party either drew even or won seats. However, their electoral fortunes did not stop them from preemptively stymieing revolts.

In short, both the nature in which Boehner may lose his job and his party’s electoral fortunes before his retirement have plenty of historical precedence. That said if Boehner wants to make his mark on history (some sarcasm), he could wait until after the election to retire. Given the possible change in power in the Senate, it is more likely than not that he waits until after the Election to decide whether to run for another term in the top spot. Regardless of his decision, this is not uncharted territory.

*There are several issues not addressed in this hypothetical: since 1900 speakership elections were internal battles with little national electoral consequence. For most of the 20th century congressional elections were local, not national, affairs. For most of the 20th century individual candidates were more important than national party platforms in congressional elections. The power of the speaker to dictate policy fluctuated enormously in the last 114 years. Therefore, speakers’ ability to pass policies – or take/avoid blame for failed platforms – has also fluctuated. Parties’ internal makeup/coalitions have changed dramatically. In short, congressional elections are just one factor among several that affect choosing a House leader. That said, the increasing national character of congressional elections is more prevalent today than in previous decades.

Assessing Congressional Productivity: Getting it Right

The Washington Post’s Wonkblog had a write up on congressional productivity not long ago. Its central thesis is Congress is more productive in election years than in non-election years. This is a good counter-intuitive point. Many pundits discuss congressional productivity only in terms of major bills passed. However, Congress often passes laws that fly under the radar.

There are a lot of reasons why Congress is more productive in election years than in off-years.  Each new Congress must start over from scratch. Therefore, bills that failed in the previous Congress must be re-introduced, committees must re-hold hearings, and the process of reconciling differences between the two chambers must also begin anew. Basically, the first year of a Congress is filled with preliminary steps in the legislative process. In the second year of a Congress, many bills require fewer steps to become law. Also in election years, many bills are passed for campaign fodder. The Senate’s attempts at equal-wage and minimum wage legislation the past few weeks are perfect examples of this strategy.

However, while Wonkblog’s central argument – that the House and Senate pass more bills in election years – is correct, there are a bevy of problems with the article.

First, it uses the wrong metrics. It employs the number of public and private bills “enacted into law” for each chamber. This is a pretty big problem since a single chamber cannot pass a law. So what does this line in the Resume of Congressional Activity actually measure? This line reports the number of laws that originate in the House (bills beginning with H.R.) or Senate (S.) that eventually became law. So really this piece is not capturing productivity in either chamber. Instead, it is measuring how many bills originally introduced in each chamber actually became law. The measure used doesn’t capture productivity–it captures bill origination.

This is hugely problematic for a few reasons. Bills that originate in one chamber are many times merely vehicles for the other chamber’s bill. For example, according to the House’s reading of the constitution, all revenueand spending bills must originate in the lower chamber. However, there are several revenue and spending measures the Senate would like to consider and pass. So rather than wait for the House to initiate the spending bill the Senate would like to pass, it will substitute its text on an old House bill and claim that the constitutional requirement has been met. The same is true vice-versa. A situation like this happened this past February when a Senate bill originally naming a Nashua, NH air traffic control tower after Patricia Clark turned into a bill raising the United States debt ceiling. The House changed the title of the bill to reflect the change.

Chamber productivity should be analyzed by the number of bills passed in the chamber per session of Congress. Or, it should capture the total number of laws. (See below)

bills and laws

As these numbers show, the trend described in the piece holds but not to the same degree. Bills passed in each chamber increases during election years, but only modestly. The number of laws passed, however, is nearly double in election years rather than in non-election years, suggesting that one chamber is likely finishing the work of the other in the second year of the Congress. Regardless, stating that “the volume of bills passed during election years nearly doubles, in both House and Senate” falls well short of reality.

These numbers also fail to distinguish between significant and non-significant bills, which is a big distinction. When discussing congressional productivity abstractly most people are not referring to inconsequential bills such as renaming Post Offices. Yet, to a large extent these numbers capture exactly that. In any given year, most bills are passed with little to no fanfare. The overwhelming majority of bills (over 88% from 1891 to 1994 according to Clinton and Lapinski (2008)) do not even receive a roll call vote in either chamber. In any given Congress the overwhelming majority of bills are passed under super-majority procedures such as unanimous consent or suspension of the rules (which requires 2/3rds majority to pass the House). Just because there are more bills “passed” does not mean Congress has been productive on any substantial front. In this Congress, the notion that Congress will get nothing done of much substance in this election year holds true.

Another problem is that the article includes the passage of private laws. Private laws are fundamentally different from public laws (note: the above chart graphs measured passed in each chamber minus private laws). Public laws apply to all citizens, states, etc. Private laws are bills that directly affect one or a few private citizens. These bills often deal with immigration cases or claims against government. In the more distant past private bills were the means used to dole out government benefits (Jenson 2003). Private laws frequently bestowed disability benefits to wounded veterans and their widows as far back as the Revolutionary War.

private laws

Over the past several decades the practice of passing private bills has declined dramatically. Some of the functions private bills served have been automated through programmatic legislation. Other research suggests new avenues of constituent service emerged, making private bills an antiquated means for representatives to address constituents’ problems. Regardless, conflating public and private bills can overestimate the “productivity” in many of the mid-20th century Congresses.  However, the general trend that Congress is passing fewer laws still holds.

The article was an interesting and counterintuitive look into congressional productivity. However, this is one instance in which the thesis was not resting on the right evidence.

Piece was re-posted from reviseandextend.com.

A Caveat on Congressional Productivity

On Thursday, Chris Cillizza examined an Obama statement in Texas: “This has become the least productive Congress in modern history, recent memory. And that’s by objective measures, just basic activity.” Cillizza agrees and extrapolates this a little too far, saying this Congress is the least productive in history. By the numbers many would argue this isn’t exactly accurate, but I’d argue he’s ultimately right.

First, if we take Obama’s statement at face value, he is right. This Congress is on pace to be the least productive in modern history (modern, in this instance, referring to the post-WWII period). However, it is decidedly not the least productive in history. The current Congress has thus far passed 98 laws. This is awful but it is not the fewest in American history. The 113th Congress, though it still has a couple months to legislate, is already more productive than several congresses prior to the Civil War. So strictly speaking this Congress will not be the least productive in history.

If you think that is a low-bar to evaluate policy productivity, you’re right. To fully examine policy productivity, we need to account for the need for policy. In short, what should Congress be doing. Reauthorizing existing policies and programs, addressing pressing social problems, or fixing broken policies are at the core of congressional responsibility. Sarah Binder examined policy demand in Stalemate to examine gridlock since 1947. She found that even when controlling for policy demand gridlock has still increased over the post-war period. This reaffirms what we already knew but doesn’t evaluate policy demand in the antebellum period (mostly due to data constraints), the last time we saw productivity levels this low.

We already know there were several antebellum congresses that passed fewer laws, so the 113this not the least productive in history. However, when put in the context of policy demand, it very well may be. The Federal Government today has more responsibilities than it did 150 years ago. The Industrial Revolution, and the economic and social problems that accompanied it brought enormous challenges to society and Congress, spurring a slew of labor legislation, economic regulations, and other policies addressing those problems. Modern shipping practices have facilitated interstate commerce. This has boosted economic potential but also made monitoring corporate financial and economic activity and controlling things like food borne diseases more difficult. Technological advances have brought the privacy versus security debate to the forefront of government functions as monitoring private conversations and access to private financial information has become easier.

Social and technological advances have created new problems for governments to address. As a result Congress has more to do. One could argue the best government governs the least, but in many ways that shirks social responsibilities already under the federal government’s purview. Legislators should oversee and direct existing programs toward the proper ends. Unfortunately, unproductive congresses often fail in this capacity. This Congress’s basic budget and spending squabbles have overshadowed this fact. According to CQ, almost a third of discretionary government spending in 2014 funded programs that have not been reauthorized by Congress. Government programs are potentially wasting money on outdated projects because Congress has failed to perform its legislative function.

Pending lawmakers do not want to return to a period where employees were required to work 60 and 80 hour weeks for extremely low pay, food quality standards were lax, basic infrastructure needs were not met, or wiretapping and information hacking goes unchecked, these problems demand attention. However, given the current policy environment these vital functions are largely ignored.

In short, the 113th Congress is not the least productive in history. But relative to policy demand it very well may be.

Rules Changes through Precedent: History and Consequences

Don Wolfensberger wrote a nice piece on the parallels between Majority Leader Reid’s nuclear option  and Speaker Reed’s ruling in 1890 that eliminated dilatory motions in the House. Both are good examples of rules changes through precedent. The two were so similar it was the first example that came to mind as Majority Leader Reid went nuclear and changed the Senate. I mentioned it on twitter but I don’t believe I blogged it. So in addition to Wolfensberger’s post there are some important, though wonky, differences between the two tactics. Unfortunately, the trajectory we’re on has consequences for our system of government. Speaker Reed and 1890

In the 51st Congress the House was in a similar situation as today’s 60-vote Senate. Republicans held a slim majority in the House. The history books will show that Republicans held 179 to Democrats 152. However, at the beginning of every Congress it was not unusual for contested elections cases to continue well past the first day of Congress. That meant that several members who sat in the 51st Congress did not join the House until well after Congress’s March opening date.

Compounding those absent members were the troubles of 19th Century travel and medicine. Many members were absent due to illness, a sick spouse or child, and difficulty traveling to the nation's Capitol. In 1889 the travel experience from California to Washington D.C. was neither particularly fast nor carefree.

For House Republicans in the 51st Congress these difficulties contributed to a voting majority much narrower than their official seat advantage. At the very outset of the Congress, the Republicans voting majority was actually just short of the chamber majority required in the Constitution. While they had more seats than Democrats, they often had less than a majority of the House. That meant if Republicans wanted a constitutional majority required to legislate, they had to rely on Democrats to vote. They didn’t need Democratic votes to win the votes. But they did need them to vote “nay,” so that their vote would count toward a chamber majority necessary to pass bills.

As you can imagine, House minorities were not all that keen to let majorities legislate. When a request for the yeas and nays was ordered and the clerks called the roll, minority members would sit silent in the chamber. By not responding, they were considered absent. When the final tally was counted, the House lacked a quorum and could not pass bills. This was how the disappearing quorum - which was also called a filibuster in its day - worked.

In years when the majority had a narrow seat advantage this became the norm. Reed, as the incoming Speaker of the House, knew this was something Democrats planned to use in the 51st Congress. He also knew Republicans would barely, if ever, be able to marshal a chamber majority.

So prior to convening the Congress Reed and his lieutenants devised a plan. First, Republicans did not adopt any rules for the 51st House. This is normally the first order of business in the House. However, adopting new rules reported from the Rules Committee would require a majority vote that Republicans did not have. So instead, they decided to operate under general parliamentary law. Put differently, they operated under Jefferson’s Manual and House precedents. This gave Reed the ability to rule the House based on whatever he assumes to be parliamentary, so long as a majority of voting members sustained his ruling.

This set the stage for Reed to dismantle the disappearing quorum. In January of 1890 Reed called up an elections case from West Virginia. After the vote, Minority Leader, and former Speaker, Crisp (D-GA) made a point of no quorum. Reed then ordered the clerks to count the members that are present but not voting and to add them to the roll call.

Unfortunately for us, the fireworks of the Reid’s nuclear option paled in comparison to the violent response from the Democratic minority in 1890. According to Speaker Reed’s parliamentarian, “pandemonium reigned in the House for several hours.” Members charged the front of the chamber crying foul. Speaker Reed, however, remained cool. At one point, a member charged the Speaker yelling, “I deny you the right to count me as present!” Reed, known for his cool wit, responded, “The Chair is making a statement of fact that the member from Kentucky is here. Does he deny it?” (Alexander 1916, 168).

Later that Congress, Republicans adopted new rules, by majority vote, that included quorum counting among other changes that pinched down on minority rights in the House. From that day forward the House was a different institution.

Differences and Implications

Given this context, there are a couple differences between Speaker Reed’s quorum counting and Majority Leader Reid’s nuclear option. First, the House intentionally refused to adopt rules in order to change precedent. The Senate does not have this luxury. It is a continuing body. Meaning, it does not adopt new rules at the beginning of a new Congress. A new Senate is bound by the rules of the previous Senate. Because there is never a lapse in rules, Reid had to interpret the rules through precedent. This is the inverse of Speaker Reed’s tactic of establishing a precedent and then using that precedent to enact new rules of the House. It also creates a more precarious tension between chamber rules and chamber precedents.

Second, there is a significant trigger point that I imagine will come into play as the Senate continues to debate the filibuster. Senate rules require a two-thirds majority to change chamber rules. At what point will the Senate invoke that clause on future interpretations of the filibuster, for say legislative filibusters? Since interpretations are done through appeals of the chair, which are sustained or overturned by a majority, the voting requirements for a rules change and precedent change do not match. Here is the million dollar question: which is more constitutional? Today's partisans are obviously willing to reinterpret inconvenient rules. The next question becomes, which take prominence? Do the rules of the chamber or the adoption of a new precedent dictate Senate process?

I don't believe it will come to this in the near future. There are enough procedure stalwarts in the chamber to ward off this kind of tactic in the short-term. However, partisan guerrilla warfare has been boiling over in the Senate in the last decade. So much so that members of Congress have filed several lawsuits in court to adjudicate their own processes. I would not be surprised if a future majority reinterprets the filibuster entirely. And if that is the case, it may be the first time in congressional history that a court will have to decide which rules and precedents will govern Senate process.

This is a somewhat dangerous trajectory. If this were to happen Congress would not just be losing power to the presidency but also to the courts. Partisan procedural tactics threaten to slide America’s First Branch into third. At that point, the branches furthest from the people will also wield the most power. Anyone who can count and has looked at the articles of the Constitution should be concerned.

Our Very Unproductive Congress: Why Today's Gridlock is Different and more Devastating

One of President Truman's most repeated lines, the “Do Nothing Congress,” is increasingly being used less as a metaphor and more as a statement of fact. The 112th Congress was the least productive since the Civil War (figure by Political Scientist Tobin Grant). So far, the 113th is on pace to do even worse. LawsbyCongressWhy has gridlock been so bad recently? Many blame polarization. Certainly polarization has an effect. Bipartisan agreements have become less common as ideological moderates have disappeared from the chambers. That, coupled with a Senate increasingly requiring 60-votes to pass legislation, is a big reason why stalemate has become more common in recent decades.

Polarization is important but I would argue that it should take a back seat to another explanation: inter-chamber disagreement. Research has shown that House and Senate ideological differences are probably the most important indicators of gridlock. Even in instances of unified congressional control policy differences between the chambers can significant increase gridlock. In Binder’s book, Stalemate, she illustrates that bipartisan context is the largest substantive indicator of gridlock and productivity – outperforming both polarization and traditional divided government. The further the chambers are from one another, the more difficult it is for Congress to pass bills.

This means polarization’s effect on productivity is likely to be particularly violent effect when Congress is divided. This is not the same as divided government – when one party controls the White House and the other controls Congress. Divided control of Congress is the condition we find ourselves in today: one party controls the House and the other controls the Senate.

Since 1947, there have been six Congresses with divided party control. From 1981 to 1987 (the 104th to 106th Congresses), Republicans controlled the Senate and Democrats controlled the House of Representatives. The 107th Senate was mostly controlled by Democrats* while Republicans controlled the House. And finally, the 112th and 113th Congresses are divided in the same way. Historically speaking it is rare. The five divided congresses prior to the 113th passed, on average, 27% fewer laws than congresses with unified control regardless of who controlled the White House. Furthermore, as polarization has increased, divided congresses have become less productive.

This is the big reason the last two Congresses appear historically inept. Hyper-polarized parties each control one chamber of Congress. As we have routinely seen in the 113th, laws passed by one chamber are dead-on-arrival in the other. There is virtually no agreement between the chamber on basic policy details. Gridlock is more common today than it was 20 years ago. But even by today's standards the current levels are dismal.

Polarization matters, but it matters more in context. With split control of Congress the difference between the chambers has become immense. This, more than anything else, has made Truman’s words ring truer today than perhaps ever in our history.

(* With the exception of roughly 4 months)

Obligatory Electoral College Maps Are Obligatory

If the antiquated Electoral College is good for one thing, it's making fun maps.  Here are some Electoral College results you might see tomorrow morning (or late tonight if you're a political junkie).  You can make your own map at Real Clear Politics. The first map is my personal prediction.  I used sites like FiveThirtyEightPollster and Real Clear Politics for these predictions.

The above map is favorable to the President, obviously, giving him a fairly decisive victory. So what would a map favorable to Mitt Romney look like?  I think the most likely path to victory for Governor Romney would be the following:

Though there are other routes to 270 for Mitt Romney, the most likely in  my view is that he wins Ohio.  Despite claims from his campaign to the contrary, I just don't see him winning Pennsylvania, Nevada, or Wisconsin.  Unfortunately for him, people like Nate Silver and others estimate that Obama has over a 90% chance of winning the Buckeye State.

Finally, here's what I call the "doomsday map."

Recall from your college or high school American government classes that in the event of an Electoral College tie, the Constitution gives the House of Representatives the power to select the president.  Because Republicans are a lock to maintain control of the House, that means a Romney presidency and, sadly I think, partisan warfare eclipsing the 2000 election.  Side note, I endorse Jonathan Bernstein's thoughts on this event (namely, this is what the Constitution established as the mechanism for electing a president, so we should accept this outcome as legitimate).  Interestingly, in this scenario the Senate would be responsible for selecting the vice president.  Because Democrats are a lock to maintain control of the Senate, the White House would be occupied by a Romney/Biden ticket.

The Polarization Culprits

Jennifer Victor and Seth Masket recently posted a couple very good posts over at the  Mischeifs of Faction on polarization in Congress. If you aren't already reading their blog, you should. Both approach the problem from an electoral perspective. There are a few of the regular polarization culprits. For example, districts and states have become more ideologically similar across time. Redistricting has played a role in this as well as migration patterns helped transition the once solid Democratic South into a real two party competition. However, one of their contentions caught my eye: the rules nominating candidates. They argue, in different ways, that state and local party machines gave way to national party organizations in the past 30 years. As a result, political parties have since recruited, nominated, and elected more extreme candidates from both sides of the aisle. This, in turn, led to more polarization in Congress (i.e. high party cohesion and voting records). There is absolutely no question this has happened. Candidates positions, campaign tactics, and even members’ styles all support this contention. Members vote more with their party. Caustic comments and attacks are far more frequent now than prior to the 1980s. No question that today’s candidate is more ideologically extreme than in decades past. There is a lot of research that supports this. However, polarization is not solely an electoral phenomenon. Evidence of this is in the polarization data itself. As the figure below illustrates there have been two polarized eras in congressional history, the present and the first party era (1880-1910). What makes this interesting is that the two polarized eras span two very different practices in recruiting and nominating candidates. As Masket and Victor point out, the early period was dominated by party bosses and more locally oriented organizations. Candidates were tied closely to their party through patronage at the boss’s disposal. The present period is dominated by national party organizations. In this arrangement, members are more independent (no substantial quid pro quocorruption, though candidates are more likely to ideologically align with their party). In other words, polarization was rampant whether members were independent or not. So there has to be another explanation.

So I’d like to add another culprit in the mix: legislative process. The legislative rules in each chamber are different. So the way that voting polarization is affected by those rules varies. However, there are some regular contributors. In the House, the Rules Committee is the worst instigator of roll call polarization. It has the ability to draft rules that limit minority debate, amendments, and overall influence. It can tailor rules that virtually guarantee major bills will pass, which is really why the House is so much more efficient. Historically speaking, leverage over this committee has had a huge influence on polarization. The below figure illustrates this difference. The shaded areas represent historical moments when party leaders could either directly or indirectly leverage the members on the Rules Committee. There are several ways to influence the committee, but really it boils down to who had committee assignment power. When party leaders controlled it, polarization is much higher. When they don’t, it is much lower.

The Senate is much trickier. Committees were elected by the whole chamber beginning in the early 1900s, there is no Senate counterpart to the House Rules Committee, so structuring debate is mostly done by unanimous consent agreements negotiated by party leaders, etc. However, they can still use these tools to structure debate in the Senate, just not to the extent that it occurs in the House. Similarly, many of the House trends are often carried over into the Senate. Several studies are now showing that polarization and norms in the House are carried over into the Senate. Our own Jordan Ragusa has a very interesting project examining this effect across time and its role in polarization.

There are a couple implications of this. First, the internal-procedural dynamics in Congress play a large role in polarization (as measured by roll-call votes). According to Sean Theriault work, the rules are responsible for nearly 70% of polarization in the House and 60% in the Senate. No matter how independent or partisan a newly elected representative or senator may be, once they enter Congress are forces within the institution, (procedural and financial alike) to wrangle their loyalty. The way that the rules in each chamber influence behavior pushes the parties apart. And second, members aren’t as polarized as we often believe on substantive policy issues. But this point is really splitting hairs. It’s obvious the two parties are far apart. So while there isn’t as big of a gap on final substantive votes normally illustrated by roll-call measures, the gap is still big. It’s like looking at half the Grand Canyon. Smaller than the whole canyon, but still enormous.

This doesn’t suggest that election rules or party organization are somehow irrelevant. I would actually argue they are more responsible for the “real” polarization we see on substantive final votes. But legislative procedures play an important role in the kinds of behavioral norms and voting patterns that emerge particularly those between the parties.

Reforming Polarization and Gridlock: Series on Congressional Reform

For someone who studies congressional development, the past couple years have been frustrating. Many people with noble intentions proposed reforms to remedy our dysfunctional Congress. However, these discussions have almost universally missed the causes of gridlock and polarization. They offer remedies rather than cures. So, in this series – that will continue until I run out of ideas – I’m going to offer reforms that, in my opinion, are more crucial and fundamental to congressional operation, polarization, and the like. But before I do that, I need to debunk the worst proposal of them all… The filibuster. If I had a dime for every time somebody proposed filibuster reform… Now, before I lament why this reform is misguided, let me be clear: the filibuster needs reform. Its practice grossly misrepresents its intent (but not the Framers’ intent) and is generally a giant obstacle to majority government. But, that being said, it is not even close to the worst procedural device within the existing legislative process. Sure, it’s an easy target. I too often hear among colleagues, reporters, and friends alike, “if we could only reform the filibuster…” But more often than it is assumed filibuster reform is the silver-bullet for gridlock. We fix that, we fix gridlock and the problems it creates (i.e. the debt ceiling debate).

It’s not and here’s why: when polarization is the main problem, reforming Congress to make it more majoritarian will only exacerbate the existing problem. It will push the parties further apart, and effectively make the problem we have now much much worse over time. The already bad gap between the parties would become a chasm. Think about looking across the Grand Canyon. Now compare that to draining the Pacific Ocean to try and see Japan. That would be the size of the problem we would face and frankly, we can’t afford to make the already bad gap worse.

Here's an interesting hypothetical. Let’s assume for a second that the filibuster, cloture, and the 60-vote Senate does not exist. Let’s assume, as Matt Glassman described so well, that we effectively have two Houses of Representatives. What happens in a situation like today, where the chambers have split control between the parties? Nothing. Absolutely nothing. But it would be worse than that: negative-nothing (is this a thing?). With the current ideological division between the parties and two majoritarian chambers, neither party has an incentive to compromise with the other because 1) party leaders control the legislative process and have even less incentive to compromise with members of the opposite party within their chambers 2) the two parties don’t agree on much to begin with, and 3) each chamber holds a veto over the other. Legislation created in each chamber would be more ideologically extreme (because each chamber is effectively controlled by each party’s leader), and there would be even less overlap on bills passed in each chamber. I’d be amazed if that hypothetical Congress is more efficient than the current one.

Adding to the difficulty is divided government. I’m not going to fully delve into divided government (president and Congress split control), but this much should be said. Pending one party had control of both chambers, presidents' legislative power would diminish when competing against a truly majoritarian Congress (not necessarily a bad thing), and he/she would be forced to resort to more frequent vetoes (because legislation is passed more rapidly and because it is more ideologically extreme) to demand compromise… which probably wouldn’t happen to any significant extent. If the U.S. didn't have an independent executive, this wouldn't be as big a problem (like many parliamentary systems). But in the American system, it has just as much potential to deadlock the system as split chamber control.

Nothing about these scenarios suggest more “effective” government save one specific circumstance: unified government. Which, it turns out, resembles majority totalitarianism more than American democracy, something the Founders specifically sought to avoid.

So it’s not that filibuster reform is itself bad. It just leads Congress down a dangerous path: more extreme polarization in a system of shared power and checks and balances. That is, creating a majoritarian Senate is not inherently good when the results exacerbate an already bad problem, threaten just as much if not more inefficiency, and introduces the potential for tyranny of the majority (I mean this in a non-dramatic sense. I'm not suggesting 1984. But I am suggesting radical changes in policy from Congress to Congress). The Constitution is not a majoritarian document. In fact, it is decidedly non-majoritarian. It’s designed to prevent action/legislation, not spur it along. In a very real way removing the filibuster would strain the U.S.'s non-majoritarian Constitution... sort of like putting a jet engine in a pinto: lots of horse-power, not much control.

There are better reforms that could temper polarization and promote compromise, but the filibuster is not the first or even most effective change to acheive these ends. So, my main objective is to identify the institutional sources of polarization. My second, and much less definitive, objective is to offer some solutions that could help.

Next up: The Rules Committee.

Things Institutionalists Know that You Should: Timing is Everything

Moving forward with the third installment of our institutionalism series, I’m going to discuss the relevance of time in new institutionalist literature. So far, Nate and Jordan have discussed how institutions and preferences affect outcomes and how those outcomes are largely stable across time. I’m here to offer another perspective about how time/timing affects outcomes. Among new institutionalism’s unique contributions is the effect of time and temporal processes on institutional behavior and interaction. This concept is applied in different ways in new institutionalism's two primary branches. I'm going to start with historical institutionalism and end with rational choice. Historical-institutionalists mostly study big picture questions. As their name suggests, they look at broad swaths of history to explain institutional and political developments. In short, historical institutionalism focuses on change in American politics. The irony, as Jordan points out, is that American politics is largely stable. Major changes are rare occurrences. Often, they occur only once in a generation. However, the fact that major developments are rare does not mean “change” is not an ongoing process. In fact, the “stable” processes and institutions that often appear very durable are marred by internal contradictions. In short, historical institutionalist illustrate that stability is not often all that stable. Beneath the surface there are several developments that slowly undermine stable foundations.

Why does change take such a long time? It's mostly because institutions are good at structuring conflict. Take Congress for example: on a daily basis, as an institution, its challenge is to organize 535 different and unique interests into a single policy agreement. In the short term it does this very well. In every Congress, though today it may not seem like it, legislation is passed. The fact that Congress continually passes legislation is important. In the short run Congress enacts the majority’s policy goals. In other words, an overarching goal is continually achieved: to legislate.

Creating legislation on a routine basis creates a sense of stability. Passing legislation gives positive feedback (Peirson 2004) to the legislative process – the procedures that structure debate and positions in Congress. Despite the difficulties associated with the process, Congress continues to do its job. So in the short term, legislating can reinforce the legislative process and make it resistant to change. In other words, if it’s not broken don’t fix it. Where this all starts to unravel are when reinforcing processes, or the inherent tensions and contradictions in the process, reach a critical mass.

Let’s take the existing legislative process as an example. Today, the party leaderships control the legislative process. This was enacted in the mid-1970s in response to the then dysfunctional committee system. Committee chairs would thwart parties’ policy goals in favor of their own parochial goals; making legislation less national, more regional and local, riddled with pork-barrel and distributive projects, and ultimately a portrait of gridlock politics in the late 1960s and early 1970s. This didn’t happen over night. It took roughly 60 years for the committee system to break down. However, at the end of the committee Congresses (or committee government), committees exerted so much influence that parties had little control over legislation. Committee chairmen abused their powers and often blocked party supported legislation. David Mayhew commented during this period: “The fact is that no theoretical treatment of the United States Congress that posits parties as analytic units will go very far” (1974). As committees continued to dominate, and party extremists became more frustrated, the natural response to reform this process was to strip committees of legislative power and give more power to the party leadership to control the process (Rohde 1991; Cox and McCubbins 1993). This would alleviate the bottle-neck created by committee chairs while also serving party goals that were emerging during this time.

That’s exactly what happened. The committee system served its purposes for a very long time but as the internal contradictions were exacerbated over time – in my very simplified example, the tension between party goals and committee chairs – major change occurred and parties were given more power to solve the critical problem in the legislative process. The fact that committee chairs had become more stubborn while party interests were also emerging at the same time is referred to as “intercurrence” (Orren and Skowronek 2004). This is the mixture of multiple underlying developments within an institution that all come to a head at the same time, ultimately driving major political developments.

Now we get to the moral of the historical institutionalist story: past decisions/institutions affect future decisions/institutions. Institutions are resistant to change but have innate contradictions sewn into them. As those inherent contradictions become so overbearing to push the institution to a critical moment, reform occurs and a new institution is created to solve the crisis. This is how past institutions affect future institutions. In the example above, the problems unique to committee government pushed Congress to a critical moment. Therefore, the reforms offered by members of Congress were (1) aimed at solving committee government’s problems and (2) developed from within the existing committee process. In brief, reformers were trying to solve the difficulties with committee government from within committee government. In many ways, it’s like trying to fix your leaky roof from within your own house. You may fix the leak but you’ll create another set of problems – like overly power political parties and extreme polarization in Congress… The point is that past institutions affect future institutions by shaping how solutions are created and the problems those solutions are aimed at.

Switching gears abruptly, rational choice institutionalists utilize time differently. While time is theoretically “flattened”- meaning less attention is paid to long-term trends – it still plays a significant role. In this case, the legislative process’s sequence of events determines who, or what committee, has the most leverage over the policy outcome. The timing and sequence of decision making in the legislative process determines which positions have the greatest influence.

In this literature, two different kinds of powers are emphasized. The first is gatekeeping. In most cases, this refers to committees’ agenda setting power in their respective jurisdictions. The abuse of their agenda power led, in part, to the transition from committee to party government I described above. Committee chairs have the option to consider legislation that is referred to them or table the bill indefinitely so that it is never considered (though bills can be extracted from committees through discharge petitions signed by a majority). Since the 1970s, however, parties have also gained agenda power. They are able to bypass committees entirely and send legislation straight to the floor. This also gives them significant weight in the current process over committees gatekeeping ability. Regardless, who controls what enters the process offers significant leverage when legislating.

The second is ex post power to adjust legislation at the end of the process. Here, scholars are often referring to conference committees (Shepsle and Weingast 1987). These committees are rarely given their due by the media. They tend to pay attention to party leaders and standing committees and their chairs. However, conference committees are the final step in a very long process making them crucial to the final shape of a bill. Arlen Spector once said, “Everything else which is done is really of much less significance than the conferences, where the final touches are put on legislation which constitutes the laws of the country.” Of course, each step in the legislative process is important in shaping a bill. But the negotiations that put that determine final language of the bill is arguably the most important step in the long process of bill making.

In sum, timing is crucial to creating legislation and the developments that produce major policy or institutional changes. In both branches of new institutionalism it’s used as a theoretical component in and of itself. How developments or legislation play out across time is crucial to understand its politics and its outcome.

Note: There are several references relevant to this post. If you are interested in them, feel free to email for a more comprehensive list.

Things Institutionalists Know that You Should: Why So Much Stability?

Regular readers of the blog will recall that we are drafting a semi-regular series that codifies some of the foundational tenets of new institutionalism.  This is our contribution to a similar effort that focuses on the cores lessons from the world of political behavior.  Though the list we plan to compile will be far from exhaustive, we hope to focus on some of the fundamental aspects of neo-institutionalism as well as highlight a few of our favorite studies.  This is our blog’s niche, after all Why So Much Stability?

Nate’s previous post does a nice job laying out the core concepts institutionalists theorize about (institutions, preferences and outcomes).  This is in contrast to what political scientists often label behavioralism, where the analytical focus is on two of these concepts: preferences and outcomes.  One of the more obvious limitations of behaviorism—my contribution to our blog’s “what we institutionalists know” series— is the fact that political outcomes exhibit remarkable stability over time.   This stability is apparent when we look at the macro level—the institutions themselves—as well as the micro level—things such as such as public policies.

In the study of the U.S. Congress, for example, if we were to consider only the preferences of the 535 elected lawmakers we would conclude that existing public policies are under constant threat of alteration or repeal.  That is, if every congressman voted in accordance with her exact preference, and Congressional outcomes were simply the aggregation of these preferences, the result would be constant “cycling” (where a bill preferred and passed by an initial majority is quickly repealed and replaced by a bill preferred by a subsequent majority).  Some have called this naive view of politics the “black box” approach (where changes in inputs—preferences and exogenous pressures—produce a 1:1 change in political outputs).  However, even casual political observers know that it takes quite a bit of effort to undo previous legislative agreements.  Gordon Tullock asked a seemingly simple question in an frequently cited essay: Why so much stability?  Tullock framed his question this way:  “If we look at the real world…we observe not only is there no endless cycling, but acts are passed with reasonable dispatch and then remain unchanged for very long periods of time. Thus, theory and reality seem to be not only out of contact, but actually in sharp conflict.”

Kenneth Shepsle provided the most influential answer to Tullock’s simple question.  Structure, by which Shepsle means political institutions, is what produces outcomes in equilibrium.  This, of course, is his well-known “structure-induced equilibrium” thesis.  Structure can assume a variety of forms.  In the U.S. Congress, for example, structure is created by the political parties, committees, the rules and procedures, bicameralism, separation of powers, etc.  These structures provide a complex web of constraints on the preference maximizing behavior of each individual lawmaker, thereby limiting the effects of momentary changes in preferences and thus creating what is often labeled "status quo bias."  Robert Dahl aptly summed it up this way: “individual preferences cannot fully explain collective decisions, for in addition we need to understand the mechanisms by which individual decisions are aggregated and combined into collective decisions.”

Institutional scholars know these things based on published research.  Casual political observers, by comparison, know these things implicitly (even though they may not use the same nomenclature as academic political scientists).  Consider a recent example: the efforts to “repeal” the recently enacted health care package.  As I noted in a previous post, politicians frequently run on “repealing” legislative agreements enacted by a previous majority.  The crude logic these individuals peddle is reminiscent of the behavioral “black box” approach: “if you return me and my party to power, as the new majority we will repeal the previous majority’s policies.”  If only it were that simple.  Rarely are repeal efforts successful because of the—wait for it—institutional constraints in which these politicians operate.  Institutions distribute power among governmental actors and fundamentally shape the decision-making processes; changing the preferences of governmental actors is necessary but not sufficient to produce policy change.

Things Institutionalists Know that You Should: Plott's Equation

Inspired by Hans Noel's "10 Things Political Scientists Know that You Don't," Josh, Jordan, Will and I are rolling out a semi-regular series that borrows the idea  and applies lessons from the new institutionalism to politics.  While Noel's piece generally focuses on lessons from the world of political behavior (that is, lessons primarily gleaned from public opinion research), we are offering the neo-institutional accompaniment (which we see as our blog's niche, after all).  Our focus in this series is on three things: preferences, institutions, and outcomes.  Though the list we plan to compile will be far from exhaustive, we hope to focus on some of the fundamental aspects of neo-institutionalism as well as highlight a few of our favorite studies. Fundamentals & Plott's Equation

This post is pretty simple, but we'll turn it up to 11 over time.  Because institutional theory can be a little complex, it helps to begin with some nomenclature.

Outcomes are pretty easy: they are the result of any decision making process.  Whether it is which restaurant to go to, or whether or not to invade a country, determining outcomes is what politics is all about.

Preferences are rather straightforward as well: they are what each person wants out of a given set of choices.  People will vary in their intensity of preference (ranging from general indifference to overwhelming desire), in their direction of preference (some would rather have geoduck clams, others prefer buffalo wings), and these preferences may change over time.

Institutions are a trickier concept.  While in common parlance the word "institution" often refers to a formal organization such as a university, business or government, institutionalists use a different definition. To Douglass North (1990), the granddaddy of the new institutionalism , institutions are "the constraints that humans devise to shape human interaction."  So, Congress itself is an organization.  The procedural regulations that govern Congressional behavior are institutions.  Put more simply: institutions are the rules of the game.  These rules of the game don't just come out of the ether: they are inherited by actors, or else developed by actors when the need arises.  Institutions can be incredibly simple, such as a carload of people determining which restaurant to go to by simple majority vote; or incredibly complex, such as bargaining in the US Senate.

From the institutionalist perspective, these are the building blocks for understanding politics.  In order to understand political outcomes, you have to know both the preferences of the players, as well as the institutional structure.  Plott (1991) [here, gated] wrote,

Preferences x Institutions => Outcomes

Hinich and Munger (1997) [book here] went on to call this "Fundamental Equation of Politics."  As they point out, this equation means that if preferences change, sometimes outcomes change even if the institutions don't.  Similarly, if institutions change while preferences remain the same, the outcome may also change.   Consider a simple example:

First, the preferences: five friends are riding in the car trying to decide where to eat.  Two want seafood, one wants ribs, one wants Tex-Mex and one (the driver) is vegan.

Now, the institutions: the outcome can be determined by plurality - meaning that the most votes carries the day; the outcome can be determined by majority - meaning that at least 50% of the votes must be lodged for a particular destination; or the outcome could be determined by simple dictatorship.

Now, the outcomes:

  • Scenario One: The destination is decided by  plurality.  The two votes for seafood outnumber the other votes for ribs, Tex-Mex and vegan restaurants respectively; and everyone gets seafood.
  • Scenario Two: The destination is decided by majority.  The two votes for seafood aren't enough to carry the day, and the outcome will be unclear until someone caves and votes with the seafood fans; until the anti-seafood crowd rallies behind a common banner; or the car runs out of gas at a Golden Corral.
  • Scenario Three: The destination is decided by dictatorship, the driver gets to choose a vegan establishment, irrespective of the rest of the car's preferences.

One can easily see that if the preferences changed, though the three institutional arrangements did not, the outcomes would also vary.  Increasing the number of seafood fans doesn't change the outcome in Scenario One or Scenario Three, but it does in Scenario Two.

Although this is an exceedingly simple example, the implications are profound. Take the U.S. Senate as an example. Given the composition of 53 Democrats and 47 Republicans, if outcomes were determined by simple majority vote, Senate output would be far more favorable to the rank-and-file Democratic member.  Of course, our namesake Rule XXII applies, which for all practical purposes raises the threshold for an outcome from a simple majority to a three-fifths vote.  By raising the minimum threshold needed to pass legislation on the floor, the institutional arrangement has had the effect of moving outcomes away from the Democratic party and toward the Republicans.

Another example that often comes up in class when I present this notion to my students is the Electoral College.  To be sure, even if the American electorate's preferences were unchanged in the 2000 election, the outcome would have been different if the rules for presidential selection specified popular vote, rather than aggregating votes by state.

This has been a rather simple exercise, but in the coming weeks, we'll consider more advanced lessons from institutionalism.  In the next post, Jordan will consider how institutions have a status quo bias, and how constant changes in governmental preferences do not lead to rapid policy change (i.e. "cycling").