Agencies' responsibilities to inform Congress: Clashing views

Source: The Hill.

Source: The Hill.

By Kevin R. Kosar

"Notice and Comment," the heady Yale Journal on Regulation blog, posted this short piece by Brian D. Feinstein, a University of Chicago law professor, months ago. But if you missed it, set aside 10 to 15 minutes to read it.

It uses the summer oversight spat between Sen. Charles Grassley and the Department of Justice's Office of Legal Counsel to explore contrasting positions on the extent of Congress' authority to extract information from executive agencies. The debate illustrates the "OLC’s legal compulsion-based view" and the congressional "norms-based view" regarding information requests from the legislature. 

Under the former perspective:

"agencies must comply with requests from these specific actors because they – and only they – possess legal tools to compel compliance. Only information requests from these “authorized” agents “are enforceable by the issuance of a subpoena and the potential for contempt-of-Congress proceedings.” If a legislator can compel an agency to provide the requested information, the agency should comply with that legislator’s request. Requests from other legislators are deemed “non-oversight” inquiries to which the agency may respond at its discretion, generally providing only information that is already publicly available or attainable via FOIA."

The "norms-based" approach, as expressed in Grassley's June 7, 2017 letter, meanwhile:

"begins with the premise, affirmed in several major Supreme Court opinions, that “the power of congressional inquiry is inherent in [Congress’s] vested legislative powers.” Paraphrasing McGrain v. Daugherty, Grassley explains that “without access to information held by the Executive Branch, Congress cannot legislate effectively.” Because all members of Congress hold the authority and obligation to represent their constituents in the lawmaking process, all members are entitled to information from the executive branch."

These contrasting perspectives carry all the more import in an era of vacillating unified government under polarized parties, wherein congressional minorities (be they Democratic now or Republican during 2005-2007) feel executive oversight is being neglected. "Unfortunately for Grassley," feinstein writes, "no legal authority adopts this position." Nonetheless, the executive branch backed down in this particular instance.

To avoid these collisions in the future, Feinstein suggests Congress enact a statute:

"could introduce legislation compelling agencies within his committee’s jurisdiction to disclose information requested by a minority of committee members. Cf. 5 U.S.C. § 2954 ('An Executive agency, on request of the [45-member] Committee on Government Operations of the House of Representatives, or of any seven members thereof, or on request of the [15-member] Committee on Governmental Affairs of the Senate, or any five members thereof, shall submit any information requested of it relating to any matter within the jurisdiction of the committee.')"

For a deeper dive, see Feinstein's longer paper on Congress' oversight power at Social Science Research Network, which will soon be published in the Washington University Law Review.

Kevin R. Kosar is the vice president of policy at the R Street Institute and co-directs the nonpartisan Legislative Branch Capacity Working Group.

What ails Congress? Six explanations

Source: Bloomberg

Source: Bloomberg

By Philip Wallach

Summary

Everyone has an opinion on what is wrong with Congress. This post covers the field, laying out six different types of explanations as to why America’s legislature is struggling, ranging from factors well beyond legislators’ control to institutional choices clearly susceptible to reform.

Introduction

In my new National Affairs article, “Congress Indispensable,” I lay out an ideal of what our legislature ought to be and describe how our current Congress falls short of that ideal. I quite intentionally eschew diagnosis and prescription, because too often discussions about congressional dysfunction proceed as if the institution’s failings are self-explanatory and that it is obvious what a healthy legislature would look like. Our abundance of clichés for discussing a “broken” Congress notwithstanding, the truth is that people have varying or even conflicting senses of what the institution should do and how it is failing. I argue that our aspirations for Congress need to be informed by the particular strengths of representative government, rather than the values of efficiency or social welfare that so often dominate our public discourse.

But the appetite for diagnosis and prescription is bottomless! Early reactions to the article indicate that people are downright miffed not to find any acknowledgment of their favored explanation of what has gone wrong or what would fix things. So in this post, I do my best to simply catalog prescriptions, and in a sequel I will do the same for diagnoses.

I aim to be comprehensive (in ideas, if not citations); if I’ve missed anything, I hope readers will let me know. I also aim to suppress my own opinions (of which I have many) about the relative merits of these judgments, leaving those arguments for another day. I proceed through several different levels of explanations.

1.     The modern world is no place for legislatures

Perhaps the demands of modernity are fundamentally incompatible with generalist legislatures that are too formalist, slow, and myopic to keep up. The work of government has become so complex and intricate that legislators seem unable to effectively guide policy development, while centralized and hierarchical executives are able to build the administrative structures needed to do so.[1] At the same time, modern communications technologies enhance the possibilities for direct contact between government and citizens, including extensive reliance on referenda. And so, across the western world, legislatures are in decline.[2] As I explain in “Congress Indispensable,” this perspective can be thought of as the central feature of the tradition of skepticism about Congress dating back to Woodrow Wilson’s Congressional Government.[3]

A distinct, but related, path to legislature-skepticism is to suggest that the problems representative legislatures historically emerged to solve have been eclipsed by others, so that representative assemblies are no longer well-suited to serve society’s needs. F.R. Ankersmit suggests that representative institutions were well suited to “the kind of problem that we inherited from our aristocratic past (i.e., conflicts arising from social inequality),” but are not very capable of handling the “conflict within the mind of the individual citizen” between competing values, which he believes are now the more important type of problem.[4] Meanwhile, where original parliaments were very concretely rooted in the consent of feudal lords, the sort of consent modern legislatures are able to offer is highly abstract, and not actually of much concern to most citizens. More flexible purpose-specific networks, which make no pretension to universal consent but offer some features of openness, are on the rise.[5] Some argue that Congress’s bicameral structure makes its predicament even more severe than other legislatures, with its two chambers’ differing distributions of preferences rendering decision-making especially difficult.[6]

2.     21st-century citizens don’t want representative government

Less grandly, perhaps it is not modern life that representative legislatures are incompatible with, but rather modern citizens. Apparently, citizens throughout the developed world are souring on democracy itself, with young people in particular showing an increasing appetite for strong leadership rather than deliberative process.[7]

Legislators in particular strike contemporary observers as feckless and corrupted. A 1995 study found that U.S. citizens professed a strong commitment to democracy, but in fact reviled most of the observable features of our democracy; members of Congress seemed to embody the hated “out of touch Washington system” more than any other actors, and thus came in for special contempt.[8] Congress is supposed to somehow be able to balance expanded expectations for government performance, respect for (multiplying) identity groups, and its core function of representativeness, but it has no means of doing so.[9]

Some argue that decades of reforms promoting transparency have made Congress’s image problem considerably worse. In short, citizens now have an easier time seeing how the sausage is made, and (unsurprisingly) they don’t like it. Their distaste for many of the most transactional features of lawmaking, such as earmarks, has led to their elimination in the name of “good government” principles, but in fact the overall effect has been that Congress has deprived itself of tools it needed to perform governing functions smoothly.[10] In short, Congress is squeezed between citizens’ insatiable desire to know and their distaste for what they see; trust is difficult for Congress to regain, once lost, since neither openness nor “secrecy” sit well with the public.

3.     21st-century America is too polarized to have a working Congress

The single most-discussed feature of the modern Congress is its polarization. In the mid-20th century, there was considerable overlap between Democrats and Republicans’ voting behavior in both the House and Senate. Both parties contained liberal and conservative elements (in large part because of the long shadow of the Civil War) and there were several distinct issues cleaving legislators into variable coalitions. Today, all that has changed: Democrats are “liberal” and Republicans are “conservative” (with both of those words bearing highly stylized, historically contingent meanings), and they line up against each other in well-ordered battle lines to a remarkable degree. Nearly every live issue sorts liberals against conservatives, and the numbers of genuine moderates has fallen precipitously over the last decade.[11]

There is some controversy about whether congressional polarization is attributable to a deeper polarization of American citizens; some scholars have argued that a relatively moderate public is increasingly poorly represented by two parties so uniformly and sharply opposed to each other, and the proportion of American voters registered as independent is at an all-time high.[12] But there is considerable evidence that Americans themselves are becoming sorted into two distinct camps, such that elite polarization ought to be regarded as a fairly faithful representation of Americans’ views. Especially important in this regard is what Alan Abramowitz and Steven Webster have dubbed negative partisanship: a firm allegiance to one party motivated primarily by antipathy to the other.[13]

Rather than simple polarization causing congressional dysfunction, the real problem may be the specific configuration of modern polarization, which features two nearly balanced sides locked into a confrontation without a clear favorite. Frances Lee argues that it is the extended period of competitive balance between Democrats and Republicans that began in the 1980s, and is now easily the longest such period in American history since the Civil War, which pushes our politics toward mutual destruction and futility.[14] Severe polarization has occurred before, but with a clear majority party being held accountable by a responsible opposition rather than with two roughly equal combatants. The dynamics of such a system are quite different from what we see today.

4.     Our congressional elections produce the wrong incentives for legislators

Rather than seeing polarization of the citizenry as the problem, we might instead focus on other aspects of our contemporary election process that give members of Congress the “wrong” incentives. As leading culprits, observers often point to:

  • Partisan gerrymanders and extremist primary electorates. The argument is that strategic partisan redistricting has created more safe seats, which in turn empowers the quite unrepresentative voters who turn out to vote in the primary elections that are in essence the “real” elections for control of the congressional seat.[15]
  • Special interests who are perceived to have captured our political process, corrupting it to do their bidding, often in the form of protecting an unjustifiable status quo. Their influence comes through the careful distribution of monetary donations, which have flooded the system and forced legislators facing well-financed opponents to devote their own energies disproportionately to fundraising. Even if naked quid pro quo bribery is a small part of national politics, much more access to the system is available to those who pay, and the interests of large corporations end up crowding out others.[16]
  • A changed media environment, which pushes office-seekers to frame things in increasingly national and hyper-partisan terms. In Tip O’Neill’s day, “all politics is local” may have been high wisdom, but it seems quite dated in an environment that channels dollars and media attention to those who adopt the most confrontational postures. The demise of local journalism, the rise of social media, and the fragmentation of media into warring political camps all contribute.[17] This might also be connected to longstanding complaints about the demise of comity and civility in our political culture. When the “loudest” voices in our political discourse have concerns that systematically diverge from the electorate as a whole, or from a refined elite that previously saw itself as the keeper of a certain kind of decorum and values, the result is a coarsened politics that fails to appeal to the better angels of our nature.

5.     Modern political parties are subverting the institution

America’s two leading political parties have always been about winning elections, but they have nevertheless transformed in ways that many people believe have caused them to degrade contemporary politics.

  • The parties sought and achieved a degree of ideological consistency unknown to mid-20th century American politics, which featured two “big tent” parties whose strange concatenations of client groups could only be explained historically. By succeeding so spectacularly in making Democrats the “liberal” party and Republicans the “conservative” one—and by solidifying the meanings of those ideologies in ways that put them squarely at odds with each other—the parties essentially hollowed out the vital center of American politics and made it impossible for legislators to work across the aisle.[18]
  • An alternative perspective emphasizes not ideological consistency, but the remarkable extent to which parties have succeeded in making politics into almost exclusively a team sport, with absolutely everything being given a partisan valence and framed in terms of zero-sum partisan conflict. In other words, the parties have managed to polarize our political arena and thus our whole society, rather than causation running in the other direction.
  • Alternatively, one can argue that the focus needs to be primarily on the modern Republican Party, which has fashioned itself as an “insurgent outlier” rather than as an organization capable of contributing to governance. Most prominently championed by Tom Mann and Norm Ornstein, this view explains contemporary dysfunction as a consequence of the rise of Newt Gingrich and his cohort of Republicans who took control of the House of Representatives in the 1994 elections. Under the leadership of Gingrich, and through the speakerships of Dennis Hastert, John Boehner, and now Paul Ryan (and frequently paralleled in the Senate), Republicans structured Congress to promote conflict and embarrass their partisan opponents.[19] This shift could be attributed to fundamentally corrupt motives on the part of Republican leaders (who were scandalously solicitous of corporate interests), or to a fundamental asymmetry in the composition of the two parties’ electorates, with Republican voters preferring an ideological, bomb-throwing style of representation and Democratic voters more interested in transactionally pursuing various policy objectives.[20]
  • Although their position has never been spelled out as definitively, a diametrically opposed set of observers identify such Democrats as Jim Wright, the Clintons, Rahm Emanuel, Nancy Pelosi, and Harry Reid as prime movers in turning Congress into a more combative arena.[21]
  • Surprisingly, there are also those who would blame the weakness of parties as a major cause of current legislative dysfunction. Ray La Raja and Jonathan Rauch argue that the diminished role of state parties vis-a-vis activist donors and national parties has been a major factor in promoting highly ideological politics.[22]

6.     Congress is crippling itself

Finally, a number of theories assert that Congress’s contemporary failures result from self-inflicted wounds.

  • Leadership, overbearing or impotent? Some observers see Congress as having become leadership-heavy in ways that push against real deliberation. Retiring Representative Reid Ribble (R-WI) lamented that “The leadership has 100% say on everything and they drive and direct every decision.”[23] Others, however, actually lament the ways that campaign finance laws have diminished the power of leaders to push through compromises.[24]
  • Anti-majoritarian rules, especially the filibuster. For those who envision the legislature’s proper role as being a simple conduit for majority opinion, any choices that entrench supermajority requirements are clearly to be regarded as perniciously “antidemocratic.” Others oppose the filibuster and the proliferation of “veto points” within the legislative process on the less-populist grounds that they imperil the ability of our legislature to act and thus promote its marginalization.[25]
  • Confused and weakened committees. Congress is destined to remain a body of generalists, and yet the division of labor embedded in its committee structure is crucial to allowing it to specialize enough to legislate effectively. Today, a tangled web of overlapping committee jurisdictions weakens Congress’s ability to hold the executive branch accountable.[26] Meanwhile, committee assignments are apparently made on the basis of fundraising prowess rather than policy interest or acumen.[27]
  • Congress has piled up self-imposed rules, especially in the realm of budgeting, that impose a series of mini-crises that must be handled in order to stave off serious negative consequences. Such artificial crises (“cliffs”) have crowded out everything else from the legislative agenda, as well as poisoning relations between members.
  • Congress has allowed its own functional capacity to erode (or in some cases actively disabled itself). This unilateral disarmament in the conflict between branches (frequently discussed here at LegBranch.com) can be seen either as a manifestation of a dysfunctional Congress or as an independent cause of institutional dysfunction.[28]

Conclusion

Not all of these explanations can be correct—some are diametrically opposed to each other. Still, there is probably truth in many of them. My own belief is that there is less at stake in getting the right answer than most people seem to think. The “we” of the reform community will never be of one mind, nor should it be. People are energized to search for ways to strengthen Congress for a variety of reasons, and their passions are unlikely to be transferred from one strategy to another as a result of any social scientific detective work. Reform is more often in the realm of rhetoric than of careful logic, and there is little to be gained by pretending otherwise. It would be a shame if people of good faith hoping to help Congress right itself ended up expending their energy competing with each other rather than collectively working to promote an atmosphere of congressional self-reflection and renewal. There are plenty of problems to go around.

And solutions, too—which I will catalog in my next post.

Philip Wallach is a senior fellow in governance at the R Street Institute.

Notes

[1] On the advantages executives possess (and have accumulated), see Andrew Rudalevige, “Constitutional Structure, Political History, and the Invisible Congress,” in The Imperial Presidency and the Constitution, edited by Gary J. Schmitt, Joseph M. Bessette, and Andrew E. Busch (Rowman & Littlefield, 2017).

[2] See, e.g., Valentine Herman and Juliet Lodge, “The European parliament and the “decline of legislatures” thesis,” Politics 13 (1978): 10-25; John G. Matsusaka, “The eclipse of legislatures: Direct democracy in the 21st century,” Public Choice 124 (July 2005): 157-177.

[3] Woodrow Wilson, Congressional Government (Transaction Publishers, 2002 (1885)).

[4] F.R. Ankersmit, Political Representation (Stanford University Press, 2002), p. 106.

[5] Ankersmit discusses the work of Jean-Marie Guéhenno in this vein; 182-185. Cf., Edward L. Rubin, Beyond Camelot: Rethinking Politics and Law for the Modern State (Princeton University Press, 2005). For an empirical look at the rise of policymaking bodies outside the control of not only the legislature but of the state itself, see Catherine E. Rudder, A. Lee Fritschler, and Yon Jung Choi, Public Policymaking by Private Organizations (Brookings Institution Press, 2016).

[6] Sarah A. Binder, Stalemate: Causes and Consequences of Legislative Gridlock (Brookings Institution Press, 2003), 83.

[7] See Roberto Stefan Foa and Yascha Mounk, “The Signs of Deconsolidation,” Journal of Democracy, January 2017, pp. 5-15. http://www.journalofdemocracy.org/sites/default/files/02_28.1_Foa%20%26%20Mounk%20pp%205-15.pdf

[8] Hibbing and Theiss-Morse, Congress as Public Enemy, pp. 88-98.

[9] Joseph Cooper, “Performance and Expectations in American Politics: The Problem of Distrust in Congress,” in Congress and the Decline of Public Trust, edited by Joseph Cooper (Boulder, CO: Westview Press, 1999); Russell J. Dalton, Democratic Challenges Democratic Choices: The Erosion of Political Support in Advanced Industrial Democracies (Oxford University Press, 2004).

[10] Jonathan Rauch, “Political realism: How hacks, machines, big money, and back-room deals can strengthen American democracy,” Brookings Institution, May 2015. https://www.brookings.edu/wp-content/uploads/2016/08/political-realism-rauch2.pdf; Daniel Stid, “Two Pathways for Congressional Reform,” in Is Congress Broken: The Virtues and Defects of Partisanship and Gridlock. Eds. William F. Connelly Jr., John J. Pitney Jr., and Gary J. Schmitt (Brookings Institution Press, 2017), pp. 11-36.

[11] Nolan McCarty, Keith T. Poole, and Howard Rosenthal, Polarized America: The Dance of Ideology and Unequal Riches, 2nd Edition (MIT Press, 2016).

[12] Morris P. Fiorina, Disconnect: The Breakdown of Representation in American Politics (Norman, OK: University of Oklahoma Press, 2009). More recent data is available in Samantha Smith, “5 facts about America’s political independents,” Pew Research Center Fact Tank, July 5, 2016. http://www.pewresearch.org/fact-tank/2016/07/05/5-facts-about-americas-political-independents/.

[13] Matthew Levendusky, The Partisan Sort: How Liberals Became Democrats and Conservatives Became Republicans (Chicago, IL: University of Chicago Press, 2009); Alan Abramowitz, The Disappearing Center: Engaged Citizens, Polarization, and American Democracy (Yale University Press, 2010); Joseph Bafumi and Michael C. Herron, “Leapfrog Representation and Extremism: A Study of American Voters and Their Members in Congress,” American Political Science Review 104, August 2010, pp. 519-542; Alan Abramowitz and Steven Webster, “The rise of negative partisanship and the nationalization of U.S. elections in the 21st century,” Election Studies 41 (March 2016), pp. 12-22.

[14] Frances Lee, Insecure Majorities: Congress and the Perpetual Campaign (University of Chicago Press, 2016).

[15] Jamie L. Carson et al., “Redistricting and Party Polarization in the U.S. House of Representatives.” American Politics Research 35, November 2007, pp. 878-904; David W., Hahrie Han, and Jeremy C. Pope. “Primary Elections and Candidate Ideology: Out of Step with the Primary Electorate?” Legislative Studies Quarterly 32 (Feb. 2007), pp. 79-105; Elaine C. Kamarck, “Increasing Turnout in Congressional Primaries,” Brookings Institution, July 2014. https://www.brookings.edu/wp-content/uploads/2016/06/KamarckIncreasing-Turnout-in-Congressional-Primaries72614.pdf and citations therein.  Many political scientists dismiss gerrymandering’s importance; for one such argument, see Charles Hunt, “No, gerrymandering is not THE cause for non-competitive elections and legislative polarization,” LegBranch.com, January 5, 2018. http://www.legbranch.com/theblog/2018/1/5/no-gerrymandering-is-not-the-cause-for-non-competitive-congressional-elections-and-legislative-polarization

[16] For empirical evidence on the importance of money to gaining access, see Lee Drutman, The Business of America is Lobbying: How Corporations Became Politicized and Politics Became More Corporate (Oxford University Press, 2015); Joshua L. Kalla and David E. Broockman, “Campaign Contributions Facilitate Access to Congressional Officials: A Randomized Field Experiment.” American Journal of Political Science 60, July 2016, pp. 545-558. For pushback against claims of money’s power, see Jeffrey Milyo, “Politics ain’t broke, so reforms won’t fix it,” Washington Examiner, July 6, 2015. http://www.washingtonexaminer.com/politics-aint-broke-so-reforms-wont-fix-it/article/2567569

[17] Darrell M. West, The Rise and Fall of the Media Establishment (Palgrave Macmillan, 2001); Markus Prior, “Media and Political Polarization,” Annual Review of Political Science 16,  May 2013, pp. 101-127.

[18] For one new historical account, see Sam Rosenfeld, The Polarizers: Postwar Architects of our Partisan Era (University of Chicago Press, 2017).

[19] Thomas E. Mann and Norman J. Ornstein, The Broken Branch: How Congress if Failing and How to Get It Back on Track (Oxford University Press, 2006); It’s Even Worse than It Looks: How the American Constitutional System Collided with the New Politics of Extremism 2nd Ed. (Basic Books, 2016).

[20] Matt Grossman and David A. Hopkins, “Ideological Republicans and Group Interest Democrats: The Asymmetry of American Party Politics,” Perspectives on Politics 13,  March 2015, pp. 119-139.

[21] John M. Barry, “The House of Jim Wright: How a short-lived speakership made congressional gamesmanship the new normal,” Politico Magazine, May 7, 2015. https://www.politico.com/magazine/story/2015/05/the-house-of-jim-wright-117718

[22] Raymond J. La Raja and Jonathan Rauch, “The state of state parties—and how strengthening them can improve our politics,” Brookings Center for Effective Public Management, March 2016. https://www.brookings.edu/wp-content/uploads/2016/07/states.pdf

[23] Craig Gilbert, “Leaving Congress, Ribble warns GOP against overreach,” Milwaukee Journal-Sentinel, December 13, 2016. http://www.jsonline.com/story/news/blogs/wisconsin-voter/2016/12/08/leaving-congress-ribble-warns-gop-against-overreach/95145602/

[24] Jonathan Rauch, “How American Politics Went Insane,” The Atlantic (July/August 2016) (https://www.theatlantic.com/magazine/archive/2016/07/how-american-politics-went-insane/485570/).

[25] For examples, see Hendrik Hertzberg, “Oh, Shut Up,” New Yorker, January 10, 2011. http://www.newyorker.com/magazine/2011/01/10/oh-shut-up; Garret Epps, “How the Senate Filibuster Went Out-of-Control—and Who Can Rein It In,” The Atlantic, December 27, 2012. https://www.theatlantic.com/national/archive/2012/12/how-the-senate-filibuster-went-out-of-control-and-who-can-rein-it-in/266645/. For a similar charge informed by first-hand experience, see Olympia J. Snowe, “Why I’m leaving the Senate,” Washington Post, March 1, 2012. https://www.washingtonpost.com/opinions/olympia-snowe-why-im-leaving-the-senate/2012/03/01/gIQApGYZlR_story.html?utm_term=.1ff6db1bf0b9

[26] Joshua D. Clinton, David E. Lewis, and Jennifer L. Selin, “Influencing the Bureaucracy: The Irony of Congressional Oversight,” American Journal of Political Science 58, April 2014, pp. 387-401 (ungated draft: https://my.vanderbilt.edu/joshclinton/files/2013/06/Influencing-Bureaucracy-AJPS-Manucript-FINAL.pdf).

[27] “The Price of Power,” Issue One (2017). https://www.issueone.org/wp-content/uploads/2017/05/price-of-power-final.pdf

[28] For extended discussion, see Paul Glastris and Haley Sweetland Edwards, “The Big Lobotomy,” Washington Monthly, summer 2014. http://washingtonmonthly.com/magazine/junejulyaug-2014/the-big-lobotomy/; Lee Drutman and Steven Teles, “A New Agenda for Political Reform,” Washington Monthly, spring 2015. http://washingtonmonthly.com/magazine/maraprmay-2015/a-new-agenda-for-political-reform/

The art of the very difficult “budget” deal

Source: PBS

Source: PBS

By Joshua C. Huder

Three months into the 2018 fiscal year, Congress and the President have yet to finalize a budget deal. Delayed funding of government is not new to this Congress or its predecessors. Similar debates about how much to raise the Budget Control Act (BCA) caps (commonly referred to as sequester) occurred in 2013 and 2015, and Republican and Democratic leaders were able to hash out deals and move on. But this time, things are different. A combination of unified Republican control of government and a pattern of irresponsible non-legislating makes this a much different budget debate.

The part of the 2018 budget negotiation that actually deals with substantial money is basically over. Leaders appear to agree on the funding level boost for executive agencies, which since early December has remained relatively stable at around $54 billion for defense and nondefense discretionary spending. This gives the President the defense increase he requested, while Democrats get parity with nondefense spending.

Ironically, these numbers are basically the same as the FY2018 House Democratic Budget blueprint. They also represent a big increase over previous budget deals.  The 2013 and 2015 agreements increased the caps by roughly $30 billion. This new emerging deal appears likely to break the caps by an additional $20+ billion. In other words, a Republican Congress will ultimately fund government at much higher levels than the divided governments did in 2013 and 2015.

Part of the reason for the massive spending increase under Republican control is structural. The BCA completely reorients budget negotiations, basically turning winners into losers. The BCA can only be amended with a supermajority in the Senate, essentially turning the budget process – a majoritarian process in Congress – into a bipartisan process requiring 60-votes. This gives enormous leverage to the minority party. Ironically, winning the majority is one of the worst things that can happen to a party’s budget.

The other part is political. House Republicans’ refusal to vote for any bill appearing to increase spending undermines their leverage. Republican leaders are, and have been, forced to rely on Democrats to pass budget deals even in the House. Republicans’ inability to move spending bills out of either chamber means they shoulder all the blame for a shutdown. So not only are Democrats dramatically increasing spending as the political minority in Congress, they also are to drag other issues into the budget debate.

The irony is this budget deal isn’t really about the budget. The deal is about immigration and health care. Congressional Republicans spent most of 2017 pushing two major bills: ACA repeal and tax reform. The collateral damage of that focus was losing effective stewardship over existing programs. Extensions for the Children’s Health Insurance Program (CHIP) and the Deferred Action for Childhood Arrivals (DACA) were put on hold.  And now that must-pass legislation has arrived in the form of governing funding, lawmakers attach programs requiring attention to the moving legislative vehicle. In short, Republicans’ failure to address existing programs has come back to haunt them. These riders have complicated negotiations even more than usual.

The simple way to avoid the problem of having to simultaneously deal with reauthorizing programs and government spending would have been to reauthorize these programs earlier. However, the chambers have become so leader-driven that Congress cannot effectively multitask. A bipartisan fix for ACA insurance payments was crafted by Senators Alexander (R-TN) and Murray (D-WA) but has not received floor time. The FAA reauthorization has stalled in the House. DACA and CHIP remain unresolved issues, creating uncertainty for millions of beneficiaries. Instead of addressing these issues earlier, leaders packed the schedule with easily passed messaging bills, or in the case of the Senate, easily confirmable judges and executive branch nominees. Congressional capacity under Ryan and McConnell’s leadership has become so limited that Congress has ignored its basic and most critical legislative responsibilities in favor of passing big policy goals.

The huge spending numbers and the addition of tangential issues make the FY2018 budget debate a different animal than its 2013 and 2015 predecessors. This negotiation is much more complex. And it’s turned a budget deal that appears done – at least in terms of agreed upon numbers – into yet another shutdown crisis. Unfortunately, Republicans only have themselves to blame.

Joshua C. Huder, Ph.D., is a senior fellow at the Government Affairs Institute at Georgetown University. You can find him on Twitter @joshhuder.

 

 

 

 

 

House Committee on Administration releases additional data on sexual harassment claims

Source: Jim Mone, AP

Source: Jim Mone, AP

By Marian Currinder

The House Committee on Administration recently released additional statistics on harassment in the congressional workplace. Committee Chairman Gregg Harper (R-MS) described the newly compiled data as part of the committee’s ongoing and comprehensive review of “the laws, procedures, and resources concerning workplace harassment in the House.” The Office of Compliance (OOC) data covers settlements and awards paid by type of claims from cases originating in a House office from FY2003 to FY2007.

Last December, as the #MeToo movement spread from Hollywood to Capitol Hill, the committee released similar data covering FY2008 to FY2012 and FY2013 to the present. Since then, seven members accused of sexual harassment have either resigned or said they would not seek reelection. That number is likely to expand, as the Washington Post and CNN are reportedly teaming up to expose as many as 40 additional sexual harassment cases involving members of Congress.

The latest revelation involves a secret $220,000 payout made by the OOC to Winsome Packer, a woman who accused Rep. Alcee Hastings (D-FL) of sexual harassment. Hastings denied the claim and the case dragged on for four years before it was finally settled in 2014. Packer recently decided to break her confidentiality agreement in order to speak out about her experience. Meanwhile, Hastings says he has no objections to releasing the case information because he believes he has nothing to hide.

While Packer and Hastings disagree about the sexual harassment claim, they agree that the law governing how congressional harassment cases are handled must be fixed. Lawmakers are expected to soon introduce bipartisan legislation to fix the process for handling harassment claims. There is widespread agreement on Capitol Hill that the process must be made more transparent and empower congressional staff to come forward with harassment claims.

For too long, congressional staffers have chosen not to pursue harassment claims against their bosses for fear of hurting their own careers. The 1995 Congressional Accountability Act provides members with legal counsel should they face claims of harassment, discrimination or retaliation. But as Kevin Mulshine notes here, congressional staffers have no similar legal support. “Private sector and federal employees have the EEOC and agency EEO offices,” according to Mulshine. “It’s time that covered congressional staff have independent counsel to protect their interests and livelihoods from unfair and illegal employment practices, reprisal and harassment.”

For staffers who do successfully pursue harassment claims against members, a “win” isn’t always a win. Like other female staffers who have come forward, Winsome Packer faced an incredibly challenging process and severe consequences. “I lost my career,” (she) said. “I lost one-third of my pension. My security clearance. And I lost many of my friends.”

Marian Currinder is a senior fellow in governance at the R Street Institute and edits LegBranch.com.

Next meeting of the Legislative Branch Capacity Working Group: January 23, 2018

Meeting Power in the House 01-13-2018.png

Tuesday, January 23, 2018
12:00 PM  1:30 PM

RSVP: https://intrapartyorganizations.splashthat.com/

 

The fourteenth meeting of the Legislative Branch Capacity Working Group will examine the political and policy influence of intraparty organizations in the House of Representatives. Catholic University Professor of Politics, Matt Green, will discuss his work on the House Freedom Caucus and how it can help us understand the conditions under which intraparty organizations will be influential. Lunch will be served.

ICYMI: Top reads on Congress

Partisan Mindset

Partisan Mindset

By Marian Currinder

James Taranto, "Moderate voters, polarized parties," Wall Street Journal:

"Those old enough to remember the decades before the ’90s, then, may tend to see permanent majorities around the corner because they expect a return to normalcy. Mr. Fiorina, by contrast, argues that frequent shifts in political control are now the norm because of the way the parties have changed. He rejects the common view that American voters are 'polarized.' Instead, he says, the parties have become polarized, in a process he calls the 'sorting' of the electorate.... He arrives with a PowerPoint presentation that visualizes the data behind his theory. A pair of bar graphs show the ideological distribution of lawmakers in the 87th Congress (1961-63) and the 111th (2009-11). In both eras Democrats were the liberal party and Republicans the conservative one. But the pattern is markedly different: In 1961-63, both parties’ lawmakers tended to cluster in the middle. In 2009-11, there were two clusters—Democrats to the left, Republicans to the right. 'There’s no longer any overlap at all,' Mr. Fiorina says. 'The center is empty. That hasn’t happened in the electorate.'"

More on Congressional Parties

Lee Drutman, “Rage Against the Machines, Washington Monthly:

“That hyper-partisanship is wrecking American democracy is a truism of our times. But there is a lack of consensus about what to do about it. One challenge is that many pundits and would-be reformers lack historical understanding of the problem, which leads them to both over-romanticize the past and believe it can be reconstructed through sheer exhortations for more compromise. These reformers should read Sam Rosenfeld’s new book, The Polarizers, a timely and valuable guide explaining how our current political divisions came to be.”

David Weigel, “How the Clinton-Gingrich years became the ‘good old days’: Republicans revisit 1994,” Washington Post:

"Washington Post political reporter David Weigel sat down with four former GOP congressmen: Vin Weber, now a lobbyist in Washington; George R. Nethercutt Jr. (Wash.), who has his own consulting firm; Zachary Wamp (Tenn.), now part of the ReFormers Caucus, a bipartisan advocacy group of former lawmakers and Cabinet officials; and Thomas Davis (Va.), director of federal government affairs at consulting giant Deloitte. They talked about the Republican Revolution and how politics has changed since then." 

Paul Kane, “What Democrats can learn from the centrists who got Bill Clinton to the White House,” Washington Post:

"Washington Post reporter Paul Kane met with Al From, Chuck Robb, Sam Nunn and former Democratic Leadership Council staff members and strategists Elaine Kamarck, Melissa Moss, Bruce Reed and Deborah Smulyan. During the hour-long conversation, the group reminisced about the DLC’s ascent and discussed its legacy, including some of the criticism that was lobbed against it during the 2016 presidential race from both the left and the right." 

Congressional Capacity

Saahil Desai, “When Congress Paid Its Interns,” Washington Monthly:

“The same institutional penny-pinching that has devastated congressional staff has all but wiped out paid internships, with pernicious consequences for Washington and American democracy.”

Gary Andres, “Can caucuses save Congress?” The Hill:

"Will the Rugby Caucus save Congress? Probably not, but it is one of a number of so-called “Congressional Member Organizations” or CMOs (aka Caucuses) that are changing the way Congress operates in a largely unnoticed and understudied way. Moreover, some new political science research demonstrates caucuses are an antidote to today’s partisan fever. Lobbyists, legislative leaders, and rank-in-file members of the House and Senate all need to better understand the growing role these entities play and how they can both assist and frustrate the lawmaking process."

Nancy Scola, “Can Washington Be Automated?” Politico:

“This kind of data-crunching might sound hopelessly wonky, a kind of baseball-stats-geek approach to Washington. But if you’ve spent years attempting to make sense of the Washington information ecosystem—which can often feel like a swirling mass of partially baked ideas, misunderstandings and half-truths—the effect is mesmerizing. FiscalNote takes a morass of documents and history and conventional wisdom and distills it into a precise serving of understanding, the kind on which decisions are made.” 

Congressional Retirements

David Hawkings, "Inside the House Republican brain drain," Roll Call:

"Even if the GOP manages to hold on to its majority this fall, its policymaking muscle for the second half of President Donald Trump’s term will need some prolonged rehabilitation. And if the party gets swept back into the minority, its aptitude for stopping or co-opting the newly ascendant Democrats’ agenda will require some serious retraining.That’s because more than a third of the Republicans who began this Congress with standing committee gavels in their hands, eight of the 21, will not be members of the House a year from now."

James Wallner, “Orrin Hatch’s retirement may set off musical chairs in GOP Senate committee leadership,” Washington Examiner:

“Hatch's decision caps a seven-term career in the Senate and upends the power structure among Republicans heading into 2019. The contest to succeed him as the top Republican on the powerful Finance Committee will shape the GOP's position on healthcare, entitlements, and tax policy, and help determine what the party can accomplish in the time remaining in President Trump’s first term in office. Hatch's exit also kicks off a game of musical chairs that will affect a number of other panels beyond the Finance Committee.”

Edward-Isaac Dovere and Ben Baker, “Two Dozen Members of Congress Can’t Wait to Leave D.C. Here’s Why,” Politico:

"The ferocity of the Gingrich Revolution, President Bill Clinton’s impeachment—even the Tea Party shutdown wars of 2011 and 2013 seem like the good old days to them now. Capitol Hill is an angry, scattered mess; each party is storing up grudges to get revenge for the next time it gets the chance; and the victories are always fleeting. When pressed, the departees will confess to deep concerns that flow from Trump, the reaction to Trump, and the politics that created and elected Trump."

Nate Cohn, “G.O.P. House Retirements are Surging, but the Number in Competitive Races Isn’t as Striking,” New York Times:

“The exodus of House Republicans hasn’t brightened Democrats’ prospects quite as much as the total number of retirements might suggest. A relatively high number of Republicans have retired in competitive districts — defined here as districts that lean less than 10 percentage points toward Republicans or Democrats in presidential elections — but that number is still not out of the ordinary. In fact, Democrats have almost the same number of vulnerable incumbents retiring.”

Earmarks

Jonathan Bernstein, "Congress Needs Earmarks, Even If They're Overrated," Bloomberg.com:

"I asked congressional scholars on Twitter for how much of a difference reviving earmarks would make to greasing the wheels of legislation, and for the most part their answers were similar to what I would have said: It would help, but not all that much. So on a ten point scale Molly Reynolds of Brookings and Matt Glassman of Georgetown both said it would be about a 2 or 3. Some did suggest that it would make a more substantial difference on passing spending bills."

Haley Byrd, “The Return of Earmarks?Weekly Standard:

“Republican lawmakers are gearing up to debate an uncomfortable question they won’t be able to put off much longer: Resurrect earmarks, or leave the controversial practice dead and buried?”

Sarah Ferris, “House GOP mulls lifting ban on earmarks,” Politico:

"Republicans on the House Rules Committee plan to revive a debate over earmarks in hearings launching next week, even as members of their own party blast the banned practice as a symbol of the Washington swamp."

Budget and Appropriations

Matt Glassman, “Outlook for the FY 2018 Appropriations Process,” GAI at Georgetown University:

"The most likely outcome at this point appears to be another short-term CR into February or March, followed by a sizeable increase in the BCA caps on both defense and non-defense spending—although probably something less than a parity increase between the two—and completion of an FY2018 Omnibus Appropriations Act. The wild card is immigration. The broad outlines of a possible deal are visible, in which the repealed Deferred Action for Childhood Arrivals (DACA) policy is extended or modified in exchange for increased funding for border security. Whether such an agreement can be reached by the negotiating factions, however, isn’t certain."

George Will, "America needs a balanced-budget amendment," Washington Post:

"Democracy generally, and especially legislative bargaining, is inherently additive: Majorities are assembled by attracting components with particularized benefits. Christopher DeMuth, president emeritus of the American Enterprise Institute, notes that from the Founding to the 1930s-1960s New Deal-Great Society era, this natural tendency of government to grow was inhibited by the bipartisan political ethic: Deficits were neither prudent nor seemly except when 'borrowing was limited to wars, other emergencies, and investments such as territorial expansion and transportation; and incurred debts were paid down diligently.'”

Debating Debates and the Filibuster

David Hawkings, “Topic for Debate: Time to End Congressional Debates?Roll Call:

“Here’s a modest proposal to jumpstart the new year: Do away with what passes for “debate” on the floors of the House and Senate. Doing so would mean Congress is facing up to its current rank among the world’s least deliberative bodies. It may be a place suffused with rhetoric, some of it pretty convincing at times, but next to no genuine cogitation happens in open legislative sessions and precious few ears are ever opened to opposing points of view. In today’s polarized climate, all the hours of speechmaking have essentially no persuasive power or predictive value.”

James Wallner and Molly Reynolds, “Rules Around the Senate Filibuster,” Niskanen Center’s Political Research Digest:

"New books by Molly Reynolds and James Wallner explain when Senate majority parties use procedures to get around the filibuster. Reynolds finds parties follow their electoral and policy preferences, but Wallner finds that minority party threatened retaliation can deter change. Matt Grossmann talks to both about the future prospects for the filibuster and the ways around it."

Whither the class of 2018?

By Richard M. Skinner

 

Few patterns are more reliable in American politics than the president’s party losing seats in the House of Representatives at the midterm – it’s held in 18 out of the past 20 midterm elections (1998 and 2002 – two years when the sitting presidents were exceptionally popular – are the two exceptions).   But midterm losses can vary enormously.  Democrats lost 72 seats in 1938, but Republicans lost just six in 1986.  Right now, the normal indicators forecast a substantial Democratic wave.  President Trump’s job approval rating is quite low, reminiscent of that of George W. Bush in 2006, when he at least had the Iraq War to blame.   Democrats have opened a wide lead in the “generic ballot,” a common measure of voting intention for the congressional elections.  There is also evidence that voters who disapprove of Trump feel more strongly than do those who approve of Trump, and that Democrats are more excited about voting than are Republicans.  (There are other indicators that are better for Republicans – the economy is pretty good, and the House map favors the GOP).  

Analysts of congressional elections are using these data points to forecast substantial Democratic gains perhaps comparable to the 30 seats they picked up in 2006 (they need 23 to take control of the House).  But the Democratic edge in some surveys of the generic ballot is so large that they could plausibly gain 40 or 50 seats – at the level of the Republican sweeps in 1994 and 2010, or the Democratic waves of 1958 and 1974.  

What impact would such a large class of Democrats have on the House of Representatives?  Comparisons to the “Watergate Babies” of 1974 or the “Republican Revolutionaries” of 1994 would abound.  One can easily predict that policy outcomes will shift towards the Democrats.  They would gain control of the House of Representatives, marking the end of Republican control of the legislative agenda.  Filibusters (even in a Democratic Senate) and Donald Trump’s veto pen would block most (if not all) Democratic initiatives.  But Democratic committee chairs would be able to conduct oversight hearings of the Trump Administration, while Democrats would be able to impose some demands through continuing resolutions and other “must-pass” legislation.

Previous classes of this size backed the existing agendas of their party – but also often shifted power within it.  The Democratic classes of 1958, 1964, and 1974, dominated by Northern liberals, moved the congressional party’s balance away from Southern moderates and conservatives.  In Issue Evolution, Edward Carmines and James Stimson argue the Democrats of ’58 cemented their party’s allegiance to civil rights.  The class of 1964, expanded by Lyndon Johnson’s landslide defeat of Barry Goldwater, helped provide the votes to pass the Great Society legislation.  All these classes helped provide the votes to back the agenda of the Democratic Study Group, which wanted to shift power away from committee chairmen to the party caucus.   The members of these classes shared not just liberal policy views, but an activist and publicity-seeking culture that clashed with that of the seniority-dominated mid-century Congress.   These classes had sufficient impact on Congress to generate two classics of political science: Barbara Sinclair’s The Transformation of the U.S. Senate (on the Senate class of 1958) and Burdett Loomis’s The New American Politician (on the House class of 1974).  The large Democratic classes of 2006 and 2008 provided the votes to pass the Affordable Care Act and the stimulus package before being devastated by the Republican wave of 2010.

Large classes of Republicans have provided the votes to pass legislative agendas, though those agendas have been mostly formulated by others.  The class of 1946, elected during the greatest strike year in American history, helped pass the Taft-Hartley Act, which greatly restricted the power of organized labor.  The Republicans of ’46 also were identified with strident anti-Communism, personified by the young Richard Nixon.  These agenda items were not created by them, but had long been concerns of conservatives in both parties.   The class of 1980 became known as “Reagan’s Robots” for their rock-solid support for the program of the new president.   The class of 1994, which restored Republicans to control of the House after 40 years, mostly followed the lead of Newt Gingrich.

But these large classes also remade the operations of Congress.  The classes of 1958 and 1964 produced large numbers of policy entrepreneurs who pushed for a more transparent, decentralized Congress that would give them more opportunities to shape legislation.  But they also supported efforts to shift power away from committee chairs to the Democratic caucus more broadly.  The “Watergate Babies” brought these efforts to the forefront shortly after they arrived in Washington.  They voted out three senior committee chairmen, empowered subcommittees, and gave more power to the Speakership.  The class of 1994 supported Speaker Newt Gingrich’s efforts to centralize power in the House of Representatives and to manage the body along more stringent partisan lines.  But many members of the class of 2010 often revolted against their own party leaders; the House Freedom Caucus thought the leadership’s agenda was insufficiently conservative, while other members complained that Speaker John Boehner had excessively concentrated power.

If the 2018 elections produce the Democratic wave that many analysts are currently predicting, what might the Class of 2018 look like?  More women are running for office this cycle than in the past, and a disproportionate number of them are running as Democrats. Policy concerns and a deep dislike for President Trump have mobilized these candidates and if elected, they’ll play a bigger role in setting the party’s policy agenda. As was the case in the 2006 wave election, the districts that would produce a Democratic majority are more moderate than those that elected the current Democratic minority. Democrats learned the hard way in 2010 that members elected in moderate districts can’t swing too far to the left without risking losing their seats. Party leaders would be wise to keep 2010 in mind when setting their agenda for the 116th Congress.

Also important to consider is how a large freshman class might reshape Congress’s institutional structures. The trend on Capitol Hill for a long generation has been towards centralizing power in leadership.   But perhaps a big cohort of newcomers, anxious to make their mark, might demand a reversal of this shift (a la the class of ’74).  Democratic House leaders are old and an incoming class, heavy on Millennials, might join the already existent calls for a changing of the guard.  Running on pledges to curb Trump’s excesses, Democratic members of the Class of 2018 might find it attractive to bulk up legislative capacity and strengthen Congress vis-à-vis the executive.

While there’s little doubt that Democrats in 2018 would focus on curbing President Trump’s power, the question of whether they would pursue impeachment remains open. The class of 1974 arrived in Washington too late to bring down Richard Nixon.  But it was able to continue pushing the resurgence in congressional power that had begun during the Nixon Administration. Might the Class of 2018 similarly defend Congress against an overreaching executive?

Virginia’s recent elections may provide some insight.  Surprising almost all observers, Democrats picked up 15 seats previously held by Republicans in the House of Delegates.  Given that one Democrat replaced one who retired, 16 of the 49 House Democrats that will take office this month are newcomers.  The freshman Democratic class looks different from the body it is joining; it is younger, more diverse and much more female.  It includes the Virginia General Assembly’s first transgender member, its first openly gay woman, its first Latinas, and its first Asian-American women.  While only three freshman Democrats were endorsed by Our Revolution, the organization that grew out of Bernie Sanders’s presidential campaign, it is a fair bet that the new Democrats will be relatively progressive.  Some have already formed a group dedicated to opposing the influence of corporate contributions, which have traditionally flowed freely in Virginia.  This session will show us how a large influx of newcomers can reshape a legislative body in the Trump era. 

The political landscape could easily change during the next ten months, but congressional analysts and prognosticators should start thinking now about the likely impact of a large cohort of freshmen.   That is particularly true for those working on issues of legislative capacity.  Should the Class of 2018 prove to be an activist class or interested in shoring up Congress’s institutional powers, they will need to understand how to use the legislative and political tools available to accomplish their goals. They should also be open to pursuing reforms that would improve legislative capacity and efficiency, and ensure that Congress remains a co-equal branch of government.

 

Why enacting H.R. 4010, the Congressional Subpoena Compliance and Enforcement Act of 2017, is a big mistake

Source: Issa.house.gov

By Morton Rosenberg

 

Summary

The House of Representatives’ recent passage of the Congressional Subpoena Compliance and Enforcement Act of 2017 (H.R. 4010), whatever its intention, effectively signals that Congress has capitulated to the executive branch’s claim that neither the House nor the Senate can exercise its constitutionally-based prerogative of self-protection through the processes of inherent and criminal contempt. Executive-legislative disputes over privilege are not legal battles between political actors but rather political battles with legal underpinnings. By shifting resolution of inter-branch privilege disputes to the courts, the Act will further undermine Congress’ ability to maintain its place as a co-equal branch in our constitutional scheme.

 

The Compliance Act: A Response to Executive Intransigence

On October 11, 2017, Rep. Darrell Issa, R-Ca., introduced H.R. 4010, the “Congressional Subpoena Compliance and Enforcement Act of 2017” (Compliance Act), which was assigned to the House Judiciary Committee. The following day, without any public hearing or consideration, the bill was reported out of the committee by a vote of 26 to 0. On October 23, the House passed the bill by a voice vote and sent it to the Senate for consideration.[i]

The bill attempts to address, both legally and practically, current confusion that ostensibly enables executive branch officials and employees to thwart timely enforcement of legitimate subpoenas issued by congressional committees. The executive branch has triggered this state of affairs by claiming the historically- and constitutionally-recognized mechanisms of legislative institutional self-preservation – criminal and inherent contempt of Congress proceedings – are inapplicable to executive actors.

So far, no similar legislation has been introduced in the Senate.

In 1975, oversight committees, resting on  over 150 years of historical practice and judicial recognition of the legislature’s inherent constitutional authority to protect itself from non-member assaults on its prerogatives, revived the  prevailing threat that a refusal to comply with a congressional subpoena could result in a citation for criminal contempt of Congress or a trial at the bar of one of the congressional houses, either of which could result in fines or imprisonment. There is little doubt that such threats were effective, at least until 2002. In particular, between 1975 and 1998, there were 10 votes to hold cabinet-level officials in contempt. All resulted in complete or substantial compliance with the information demands in question without proceeding to trial. In fact, the threat those instances established was so credible until 2002 that even the mention of a subpoena was often sufficient to move an agency to accommodate Congress’ wishes. The last such instance was the failed presidential claim of privilege during House Oversight Committee Chairman Dan Burton’s 2001-2002 investigation of the two decades of informant corruption in the FBI’s Boston regional office. Indeed, this was a bipartisan effort wherein a contempt vote was a virtual certainty if executive branch officials had not acceded to congressional demands.[ii]

In apparent acquiescence, congressional leadership and committees have presumed their only recourse is to seek enforcement through civil litigation in federal court. Although the courts upheld the authority of the House to initiate such litigation by simple resolution in Committee on the Judiciary v. Miers,[iii] the stratagem has resulted in lengthy, debilitating delays that undermine timely committee oversight of the executive branch. 

The investigation and litigation in the Miers foray spanned more than two years, ultimately resulting in a ruling that the president’s invocation of privilege did not extend a cloak of absolute immunity to officials. The government appealed the ruling but, due to a change in administration, the case was settled in early 2009 with an inconclusive resolution that appeared unlikely to deter similar executive behavior. Later events shortly confirmed this prediction.

Another case involving executive defiance of congressional subpoenas, Committee on Oversight and Government Reform v. Sessions (the “Fast and Furious” case), has been under committee investigation and subsequent litigation for seven years. And yet again, because of an administration change, the appeal has been put on an indefinite stay.[iv]

In its initial decision on the matter, the district court judge ruled that congressional committees must recognize agency claims of deliberative process privilege.[v] That ruling contradicts the historical practice of treating such claims as founded on common law precepts, which are not binding on the legislature and are subject to acceptance at the sole discretion of a committee.[vi] Though the government abandoned its claim of presidential privilege, the court discerned a “constitutional dimension” to the presidential communications privilege and required committee consideration of the claims, thereby affording the agency the opportunity to challenge the committee’s demands.

This has had the effect of shifting the burden of proof and action from the witness in question to the requesting committee. Congressional acceptance of the executive’s stance that Congress cannot use its contempt powers has essentially mooted what were once credible threats against executive officials: a contempt-of-Congress citation and criminal proceedings. As a consequence, agencies have generally become reluctant to comply with committee information demands in a timely and complete manner. Indeed, there is little legal incentive to do so now that agencies understand refusal will require committees to seek court enforcement of their demands, which they are wont to do.[vii] And, of late, agencies have been actively encouraged to engage in such obstructive conduct.[viii]

 

Why the Compliance Act is a mistake

The proposed Compliance Act seeks to remedy the above-identified problems with subpoena enforcement by tweaking the current litigation model. It provides an express statutory basis for one house or committee of Congress to authorize civil enforcement actions, thus confirming the rulings to that effect in Miers and Fast and Furious.[ix] It adjures all courts dealing with such civil enforcement suits to expedite their consideration and allows the congressional plaintiff to request that it be heard by a three-judge court whose determination can only be reviewed by direct appeal to the Supreme Court.[x] The trial court may impose a monetary penalty on a party found in noncompliance, which cannot be paid with public funds.[xi] If a trial court finds that a subpoenaed party has failed to provide a privilege log – as required and prescribed in new Section 105 – “in a timely manner,” the court must determine that any privilege or alleged ground for noncompliance has been waived. Timeliness is to be determined by the court.[xii]

Finally, in perhaps its most significant provision, the Compliance Act appears to give a statutory imprimatur to committees’ historic practice of making the initial discretionary and binding determinations of whether to accept “non-constitutional” claims of privilege:

Section 4. Rule of Construction. Nothing in this Act shall be interpreted to diminish Congress’ inherent authority or previously established methods and practices for enforcing compliance with congressional subpoenas, nor shall anything in this Act be interpreted to establish Congress’ acceptance of any asserted privilege or other legal basis for noncompliance with a congressional subpoena.

This provision would appear to be an uncertain attempt to address, and perhaps reject, the Fast and Furious court’s detection of a constitutional aura in the common law deliberative-process privilege which, by implication, could also be found in other common law privileges by more generous courts. Clear explanatory language of congressional intent in the legislative history could have clarified the issue and thereby repaired the damage wrought by the Fast and Furious ruling. But none is to be found.[xiii] The question remains, however, whether this provision alone would warrant validation and continuation of the civil enforcement litigation model as the most effective means of preserving subpoena enforcement. Since there are non-statutory means to accomplish that goal, the answer is unequivocally “no.”

In short, the Compliance Act is based on a faulty premise and will further undermine Congress’ ability to maintain its place as a co-equal branch in our constitutional scheme. By shifting resolution of inter-branch privilege disputes to the courts, the Act gives the judicial branch a role it has consistently eschewed, and for good reason: The courts have understood that executive-legislative disputes over privilege are not legal battles between political actors but rather political battles with legal underpinnings. These battles are to be fought and resolved internally by the political actors without resort to the courts except in rare and exceptional situations, and even then with great caution.

The proposed legislation reflects the view that Congress is no longer capable of engaging in effective oversight of the executive. This perception comes from, among other things, the dismissal of “precedents” of successful committee inquiries and a failure to understand that those successes were based on the Supreme Court’s consistent recognition that, in order to perform its fundamental constitutional responsibilities, Congress can and must be able to acquire information from the president and agencies of the executive branch. The structure of checks and balances rests on the principle that Congress has the right to know everything the executive is doing, including its policy choices and their outcomes. Rulings of the High Court and lower federal courts have rested their approvals of congressional actions establishing criminal and inherent contempt processes, as well as denials of witness’ rights during congressional hearings, the assumption of the right of each house to initially determine when and how it will respond to executive subpoenas and search warrants, and to determine when the Senate is in recess for appointment purposes, on the exercise of its constitutionally-recognized internal rulemaking authority. The seemingly casual congressional acceptance that the old model of inquiry is now outmoded or will not work in the face of a recalcitrant, determined chief executive is unwarranted and self-defeating.

The model of successful oversight that prevailed from the mid-1970’s until 2002 is not outdated. That model was characterized by an institutional awareness of the need to maintain the integrity of congressional prerogatives by aggressive and continuous oversight of the executive, to foster a sense of institution, and to sustain institutional memory through lengthy tenures of chairs and key staff. It was buttressed by the credible threat of meaningful consequences for any executive refusal to provide necessary information in a timely manner.

The eminent congressional scholar, Professor Josh Chafetz, has concisely encapsulated the damage Congress brought upon itself by its resorting to the courts to sustain its legislative prerogatives:

In short, once Congress has turned to the courts to enforce its contempt  finding, the Administration can likely keep the congressional house tied up in  litigation until that Administration is out of office, regardless of how early in  the Administration’s tenure the issue arises. And if the Administration is lucky,  intervening congressional elections will usher in legislators more inclined to  simply let the matter drop. To put it succinctly, Congress cannot win in court—  even if the courts ultimately side with it over the executive branch, the  Administration can ensure that that those final rulings come far too late to  allow Congress effectively to oversee executive branch operations …. But  Congress’s self-inflicted wound may well go deeper. In seeking the aid of the  judiciary, the House was announcing to the world its belief in its own    impotence. The House had already declared that Miers and Bolten were in  contempt; it then asked a district court judge to issue a declaratory judgment  that Miers and Bolten were in contempt—in essence, suggesting that, while  the executive may not listen to a house of Congress, of course it would listen to  a district court judge …. [T]he House, in choosing to invoke the court’s authority  rather than its own, has played right into this perception. It has reinforced the  idea that the judiciary is the domain of reasoned, principled judgments that  must be respected, while congressional action in defense of its powers is “unseemly.”[xiv]

More recently, Sen. Charles Grassley, R-Iowa, expressed similar distress in testimony before the House Committee on Oversight and Government Reform. His testimony concerned the failed investigative oversight process respecting the Justice Department’s cover-up of the Drug Enforcement Agency’s Fast and Furious gun-running operation that had already consumed six-and-a-half years of inquiry and litigation.[xv] Grassley, whose letter of inquiry in 2011 triggered the House Committee’s investigation, outlined the Justice Department’s unprecedented obstruction of legitimate congressional oversight and criticized the flawed reasoning behind the court ruling which, though it gave Congress access to long-withheld relevant documents, provided a misguided legal shield for agencies in future investigations:

Now, despite the court’s order to the Department to produce documents that were admittedly not privileged, the Judge’s opinion as a whole is problematic …. The judge erroneously concluded that certain of the Department’s underlying privilege claims – although waived – were valid. The judge gave the House a victory in practice, but gave the Department a victory on the principle.

Grassley called for a bipartisan effort “to modernize the rules of engagement in congressional oversight,” including “a package of rules and legislative changes so that responders to congressional inquiries cannot rely on phony privilege claims and delay tactics.” Grassley’s reference to greater reliance on internal institutional rulemaking powers, and a greater distancing from uncertain judicial support, adds to the concern about value and efficacy of the proposed Compliance Act. Several options are readily available to achieve the goals reflected in the Compliance Act without full reliance on court enforcement.

For example, the executive’s thus far successful blockage of criminal contempt citations can be blunted if Congress created a mechanism based on the model of the now-expired Independent Counsel Act. This would allow the appointment of a special advocate by a judge or panel of a court to prosecute contempts of Congress by executive branch officials should the executive prohibit a U.S. attorney from presenting a citation to a grand jury. It may be noted that during the Teapot Dome investigations, the appointed independent counsels successfully brought several such contempt citations on behalf of the Senate. During the 111th Congress, Rep. Brad Miller, D-N.C., introduced the “Special Criminal Contempt of Congress Procedures Act of 2009,”[xvi] which may serve as a model for such legislation. That bill contains limitations on the length, cost and scope of the appointment that arguably allay the concerns raised against the now-expired version. It is, however, highly unlikely any president would sign such legislation. Independent counsels, and now special counsels, are presidential anathemas. It is also questionable whether the president would sign the Compliance Act in its present form.

Another alternative is to make inherent contempt more politically palatable, less “unseemly,” and more expeditious. This could be accomplished without the passage of legislation by each house exercising its rulemaking powers. Such rules could authorize a special committee to review the contempt vote, to subpoena the contemnor and call other witnesses if necessary, and to report to the floor its findings and recommendations. The trial on the floor would allow the contemnor the necessary due process rights before the chamber proceeds to a vote on whether to convict. Upon conviction only fines, not incarceration, could be imposed. Since there would be no arrest, detention or incarceration, no habeus corpus proceeding would be available. The monetary penalty imposed, which might be graduated over the time it takes the contemnor to comply, would automatically be taken from the contemnor’s pay. Thus all actions would be in-house. Supreme Court case law supports the constitutionality of such an inherent contempt scheme.[xvii] The executive would of course challenge its constitutionality, but once approved, the rule would be a powerful tool of leverage in inter-branch information disputes.

Finally, it is critical that Congress challenge the Justice Department’s faulty constitutional and historical bases for denying the authority of either house to protect its institutional integrity through its inherent and criminal contempt processes. The Supreme Court in 1821 recognized the necessity of each house having the power to punish individuals for contempt because the failure to do so would “expose[] [Congress] to every indignity and interruption, that rudeness, caprice, or even conspiracy, may mediate against it.”[xviii] In the spirit of that same self-protective authority, Congress in 1857 enacted a criminal contempt process to ensure that egregious acts of obstruction could be punished beyond the time allowed for inherent contempt.[xix] The legislative history of the 1857 Act made it clear the criminal process was to be complementary to the inherent contempt power and that both powers were intended to apply to executive branch officials.[xx] That legislative history also made it certain that all common law privileges were applicable only at the sole discretion of committees. The Supreme Court has held that the inherent and criminal proceedings may be both used against a contemnor simultaneously or sequentially.[xxi]

Both options must be available to investigating committees. In the past, the credible threat that either or both might be used provided sufficient, but not overbearing, leverage to convince the executive to come to the negotiating table. This occurred, most often, well before a vote of contempt by a full chamber. If such practice were properly used today, it stands to reason that, once again, agency heads would rarely agree to endure the potential risk and personal cost of a public trial that could end in a hefty fine, possible imprisonment and/or fine, merely for the sake of protecting presidential secrecy. Any revelations made as a result would not cripple or endanger the presidency any more now than they have in the past.[xxii]

 

Conclusion

The proposed Compliance Act is counterproductive to any serious effort to retrieve Congress’ oversight prerogatives. In fact, Congress does not need to pass a law empowering committees to reject claims of common law privileges, to require privilege logs to support privilege claims, or to impose fines for contemptuous conduct. If historical practice and judicial recognition are insufficient to grant committees this authority, the legislature has the internal rulemaking authority to enact such rules.

Past statutes that have directed “expedited” attention to particular classes of cases have proven ineffective in accelerating resolutions and have often been repealed.[xxiii] Some cases are simply not amenable to expedition. This would likely be true for complex committee demands for records for which a variety of claims of privilege – constitutional, non-constitutional, statutory and otherwise – are made. During the Fast and Furious litigation, for instance, the Justice Department finally disgorged more than 10,000 documents originally withheld, totaling more than 64,000 pages, which took a special master over a year to pore through and address. As indicated, the problem with the Compliance Act is not whether its fixes to the subpoena civil enforcement process are adequate; the problem is the very existence of a civil enforcement process itself.

The Miers and Fast and Furious litigations have plainly demonstrated that the Justice Department’s strategy of forcing subpoena enforcement into the courts is crippling Congress’ essential information-gathering authority. This obstructs the branch’s core legislative functions. The uncertainty over whether committees can impose meaningful consequences for deliberate delays, or outright refusals to comply, has already fostered an environment of agency slow-walking and assertions of non-constitutional privilege claims. Timely oversight in such circumstances is inevitably stymied, and the long-term costs to the integrity of our constitutional institutions are incalculable. A continued posture of acquiescence will do no more than encourage further executive usurpations. The failure to mount an immediate constitutional challenge represents an abdication of Congress’ vested responsibilities.

Morton Rosenberg was a specialist in American public law with the American Law Division of the Congressional Research Service (CRS) for more than 35 years. Among his areas of expertise at CRS were the problems raised by the interface of Congress and the executive, particularly with respect to congressional oversight of the executive branch. Mort was called on by committees to advise and assist on a number of significant inquiries, including Watergate, Iran-Contra, Rocky Flats, the organizational breakdown of the Justice Department’s Environmental Crimes Program, Whitewater, Travelgate, Filegate, campaign fundraising during the 1996 election, the Clinton impeachment proceeding in the House, corruption in the FBI’s Boston Regional Office and the removal and replacement of nine U.S. attorneys in 2006.

 

Notes

[i] The floor discussion was perfunctory. See 163 Cong. Rec. H8059–61 (Oct. 23, 2017). The accompanying committee report, issued that same day, is neither more enlightening nor persuasive respecting its goals or efficacy, as discussed below. See H. Rep. No. 115-360 115th Cong., 1st Sess. (Oct. 23, 2017).

[ii] See Alissa M. Dolan, The House Committee on Government Reform Investigation of the FBI’s Use of Confidential Informants, The Constitution Project, pp. 265–73. https://constitutionproject.org/wp-content/uploads/2017/05/FBIinformants.pdf/.

[iii] See United States District Court for the District of Columbia, Committee on the Judiciary, United States House of Representatives v. Miers, 31 July 2008, Findlaw. http://caselaw.findlaw.com/us-dc-circuit/1066623.html.

[iv] Docket No. 16-5708, D.C. Circuit. The docket summary reflects that on August 18, 2017 the court granted a joint motion by the contending parties to hold the case in indefinite abeyance to allow for settlement negotiations and ordered the parties to provide the court monthly reports on the status of those negotiations, the last of which, announcing no progress, was filed on December 20, 2017.

[v] United States District Court for the District of Columbia. Committee on Oversight and Government Reform v. Lynch, 19 Jan. 2016, Justia. https://law.justia.com/cases/federal/district-courts/district-of-columbia/dcdce/1:2012cv01332/155625/117/.

[vi] This latter understanding is also reflected in extant case law.

[vii] The background, causes and effects of the Miers and Fast and Furious investigations and litigations are detailed in Morton Rosenberg, When Congress Comes Calling: A Study on the Principles, Practices, and Pragmatics of Legislative Inquiry, The Constitution Project, pp. 3–4, 23–30, 44–45, 70–73, July 2017, https://constitutionproject.org/wp-content/uploads/2017/05/WhenCongressComesCalling.pdf/; and Morton Rosenberg, Reasserting Congress’ Investigative Authority, Policy Study No. 103, R Street Institute, 20 July 2017. http://www.rstreet.org/policy-study/reasserting-congress-investigative-authority/.    

[viii] See, for instance, Majority Staff, Joint Congressional Investigative Report into the Source of Funding for the ACA’s Cost Sharing Reduction Program, House Committee on Energy and Commerce and House Committee on Ways and Means, July 2016, https://waysandmeans.house.gov/wp-content/uploads/2016/07/20160707Joint_Congressional_Investigative_Report-2.pdf; and the December 2016 Addendum, detailing the concerted obstructive tactics utilized by the Treasury Department, the Internal Revenue Service, the Health and Human Services Department and the Office of Management and Budget over a two-year investigation to withhold documents and limit testimony of agency witnesses regarding the knowledge that there was no lawful funding authority for the Affordable Care Act’s cost sharing program. See also a letter from Acting Assistant Attorney General Curtis E. Gannon, Authority of Individual Members of Congress to Conduct Oversight of the Executive Branch, Office of Legal Counsel, May 1 2017, https://www.justice.gov/olc/file/966326/download/, advising that members of Congress – including ranking minority members of committees – who request information from the executive branch “do not trigger any obligation to accommodate congressional needs and are not legally enforceable through a subpoena or contempt proceedings.” Finally, see Danielle Ivory and Robert Faturechi, “Secrecy and Suspicion Surround Trump’s  Deregulation Teams,” New York Times, Aug. 7, 2017, https://www.nytimes.com/2017/08/07/business/trump-deregulation-teams-transportation-department.html/, and Coral Davenport and Eric Lipton, “Scott Pruitt is Carrying Out His E.P.A. Agenda in Secret, Critics Say,” New York Times, Aug. 11, 2017, https://www.nytimes.com/2017/08/11/us/politics/scott-pruitt-epa.html/.   

[ix] H.R. 4010, Congressional Subpoena Compliance and Enforcement Act of 2017, 115th Cong., Sec. 1365a(a)(1).

[x] Ibid. Sec. 1365a(a)(2)–(3).

[xi] Ibid. Sec. 1365a(b)(1).

[xii] Ibid. Sec. 1365a(c).

[xiii] Neither the House floor debate nor the accompanying committee report addresses that issue. Far stronger language in the original draft of the bill was dropped: “(4) Non-constitutional Privileges.—The court shall not give effect to any assertion of non-constitutional legal basis for withholding documents or other materials of any kind, for refusing to answer any deposition or interrogatory, or for refusing to provide testimony, unless and only to the extent that the congressional committee or subcommittee has determined, in its sole discretion, to recognize the assertion as valid.”

[xiv] Josh Chafetz, “Congress’s Constitution,” Pennsylvania Law Review 160 (2012), pp. 715, 740–41. See also Josh Chafetz, Congress’s Constitution: Legislative Authority and the Separation of Powers, (Yale University Press, 2017), pp. 152–95, detailing the history of congressional use of its inherent and criminal contempt powers against non-members and concluding that, “In going to courts as supplicants in contempt cases, the houses of Congress thus simultaneously diminish their own standing in the public sphere and enhance the courts’ standing.” 

[xv] House Committee on Oversight and Government Reform, Fast and Furious, Six Years Later, U.S. House of Representatives, June 7, 2017. https://oversight.house.gov/hearing/fast-furious-six-years-later/.

[xvi] H.R. 277, Special Criminal Contempt of Congress Procedures Act of 2009, 111th Congress.

[xvii] For discussions of the legal and constitutional basis for such a revised inherent contempt proceeding, see Morton Rosenberg, When Congress Comes Calling: A Study on the Principles, Practices, and Pragmatics of Legislative Inquiry, The Constitution Project, pp. 23–25, 214, July 2017, https://constitutionproject.org/wp-content/uploads/2017/05/WhenCongressComesCalling.pdf/; and Morton Rosenberg, Reasserting Congress’ Investigative Authority, Policy Study No. 103, R Street Institute, 20 July 2017, http://www.rstreet.org/policy-study/reasserting-congress-investigative-authority/. H. Rep. No. 114-848 (Dec. 7, 2016) makes similar recommendations for shoring up and making “seemly” the inherent contempt process.

[xviii] United States Supreme Court, Anderson v. Dunn, 1821, Justia. https://supreme.justia.com/cases/federal/us/19/204/case.html/. This ruling was reiterated three more times by the Court.

[xix] 2 U.S.C. §§ 192, 194.

[xx] See Todd Garvey, The Webster and Ingersoll Investigations, The Constitution Project, pp. 287–92, May 2017. https://constitutionproject.org/wp-content/uploads/2017/05/WebsterIngersoll.pdf/.

[xxi] United States Supreme Court, In re Chapman, April 19, 1897, Justia, https://supreme.justia.com/cases/federal/us/166/661/case.html/.

[xxii] Full details of the constitutional, legal and historical bases of the inherent and criminal contempt processes may be found in Morton Rosenberg, When Congress Comes Calling: A Study on the Principles, Practices, and Pragmatics of Legislative Inquiry, The Constitution Project, 23–30, 65–73, 213–15, 287–92, July 2017, https://constitutionproject.org/wp-content/uploads/2017/05/WhenCongressComesCalling.pdf/; and Morton Rosenberg, Reasserting Congress’ Investigative Authority, Policy Study No. 103, R Street Institute, 20 July 2017, http://www.rstreet.org/policy-study/reasserting-congress-investigative-authority/.

[xxiii] See Michael E. Solimine, “The Fall and Rise of Specialized Federal Constitutional Courts,” Journal of Constitutional Law 17 (2014), pp. 126–27, 158–60, detailing the history of three-judge courts, including those repealed in 1976 and 1988, and concluding that such courts are not sound additions to the institutional structure of federal courts. Such courts “are on balance unnecessary and in some ways may be harmful to the consideration of these important constitutional issues, by, among other things, potentially depriving the Supreme Court of the percolation of views by more than one lower federal court. The best path, then, would be for Congress not to further enact these provisions.”