Video: Congressional Budget Process Discussion with Maya MacGuineas and Philip Joyce

This Legislative Branch Capacity Working Group meeting took stock of the broken congressional budget process and likelihood of its reform with our budget expert guests, Maya MacGuineas and Philip Joyce. Discussion topics ranged from the latest shutdown threats and spending deals to perennial reform proposals such as biennial budgeting. 

As part of our ongoing focus on budget and appropriations reform efforts, we created a new resource page on The Joint Select Committee on Budget and Appropriations Reform. Check the page frequently, as we will update it on an ongoing basis.

Which House offices had the highest staff turnover in 2017?

Casey chart 1, version 2.jpg

By Casey Burgat

Which House members churned through employees in 2017 and which retained staff at a higher rate than their colleagues?

Relying on disbursement data from the House of Representatives, cleaned and verified by LegiStorm, a new LegBranch analysis reveals which Representatives led offices with the highest and lowest staff turnover rates in 2017. This snapshot analysis is part of a larger (forthcoming) project on Hill staff turnover that includes over 15 years worth of data. 2017 turnover rates for every House member will be released next week.

Why does staff turnover matter?

Though Hill staff often remain anonymous to even the most watchful congressional observers, members of Congress rely heavily on them to execute the policy and representational work for which their offices are responsible. Staff in district and Hill offices are largely responsible for the day-to-day work of handling constituent requests, researching, drafting, and advancing policy, and running effective communications operations on behalf of their bosses.

Put simply, staff matter. The level of staff turnover in a member’s office can have serious consequences on a lawmaker’s ability to fulfill his or her representational and policy duties. High levels of staff turnover can decrease the efficiency and effectiveness of the entire office. Replacing staff requires that office attention be spent interviewing, hiring, and training new staff rather than on constituency service or policy. As private sector studies have regularly found, high employee turnover disrupts office divisions of labor, depresses morale, and undermines continuity of operations.

What’s more, Hill staff often develop and  maintain expertise in a given role or on specific policy matters; when the office loses that expertise, the whole enterprise suffers from the departure of institutional memory.

What do the data show?

Turnover rates used in this analysis were constructed by dividing the number of staff that left a particular office (either voluntarily or involuntarily) by the total number of staff the office employed during the year. The median level of staff turnover for 2017 was 17.46 percent. Representatives who left Congress during 2017, and thus experienced 100 percent staff turnover, were not included in the analysis.

The chart above, and corresponding tables below, show the House members with the lowest and highest levels of staff turnover in 2017. Rep. Joseph Crowley (D-NY) led the most stable House office with only a single aide (0.035 percent turnover) departing during 2017. Rep. David Young’s (R-IA) office experienced the highest level of staff turnover with 50 percent of his aides departing in a single year. Forty-four Representatives had turnover rates above 30 percent in 2017, a pace that would result in the entire office turning over in just a three year span.

Variations in the data by party and member gender

Nine of the 10 most stable House offices are held by Democrats. On the other end of the turnover spectrum, nine of the 10 offices with the highest staff turnover are Republican.

Of the 44 lawmakers with 30 percent or higher turnover, 34 (or 77 percent) are Republican. Some of this turnover can likely be attributed to the Trump administration hiring veteran Republican staff off the Hill to help fill White House and federal agency positions. But, as revolving door research suggests, higher turnover in Republican offices could also be due to majority-party staff cashing in on their connections and moving to positions with businesses and other special interest organizations.

Women lawmakers lead more stable offices. Female members represent 19.3 percent of House lawmakers, yet lead 35.7 percent of the 14 offices with the lowest rates of staff turnover. Conversely, female members represent only two of the 14 (14.3 percent) offices with the highest turnover rates.

Tables 1 and 2 depict the Representatives with the highest and lowest staff turnover rates, respectively. Included in the tables are the number of staff employed and the number of departing aides.

Additionally, the tables show the number and percentages of staff that departed a lawmaker’s office, but remained working in Congress (i.e., left one member and joined another member’s office or a congressional committee). This measure allows a deeper look at intra-office environments in that it highlights the lawmakers whose departing staff decided to continue working in Congress versus those who decided to leave the institution altogether.

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casey post table 2, version 2.jpg

Of course, not all turnover is bad. Offices should look to replace poorly performing staff and the addition of new people can bring fresh perspectives and more efficient operations.

But given the degree to which members of Congress heavily rely on their staff, and the growing concern among some congressional observers that Congress is increasingly run by young (and often inexperienced) staff, data on turnover rates are particularly relevant. Offices that experience higher rates of turnover, especially in higher level positions, will generally be less effective in providing constituent service and affecting public policy. Offices with more turnover are also more likely to turn to lobbyists and special interests to fill the information void left by departing staff.

High levels of turnover can raise many concerns and almost none of them are good. Working in Congress can be unrewarding. Hill jobs have limited opportunities for advancement, yet typically require staff to work long hours in a high pressure atmosphere characterized by ongoing political brinkmanship. Financial compensation for staff is low compared to many private sector jobs. Additionally, civic-minded staff are growing more and more frustrated by their inability to help develop and advance policy, as an increasing amount of policy-making is being done by party leaders with little input from the rank-and-file and their staffs. The environment is one where staff are sometimes treated horribly, as the growing number of cases of sexual harassment by members reveals.

We should want our best and brightest serving in the offices of our elected officials. Congress, lawmakers, and constituents are better served by Hill staff who find their work fulfilling and choose to stay beyond just a few years.

Casey Burgat is a Governance Project fellow with the R Street Institute.

ICYMI: Top reads on Congress

 Image source  here

Image source here

By Marian Currinder

Congressional dysfunction

Burgess Everett and Elana Schor, “Congress driven to distraction,” Politico:

“Even in peak form, Congress struggles to focus on any one issue for more than a few days. But its short attention span has taken on new meaning in the era of Donald Trump. “We kind of have attention deficit disorder,” as Sen. John Kennedy (R-La.) put it.”

Tom Ridge and Tom Daschle, “America has a broken political system our leaders need to fix,” The Hill:

“We elect leaders to place country above party, address the most critical issues plaguing the nation and prevent future crisis from taking root. But Washington needs to face the facts: The political system itself is broken, wearing down too many leaders with endless fundraising demands and turning the job of elected representative into a never-ending campaign whose purpose is to vilify the other party.”

Lee H. Hamilton, "Congress Tanks - But Does It Care?" IU Center on Representative Government:

"Americans have a right to be disappointed in the performance of the legislative branch. But they also have an obligation to speak up about it and demand action not just on a favored bill, but on improving the effectiveness of the Congress itself."

Rep. Bradley Byrne, “Making Congress work again,” Alabama Today:

“I am tired of just talking about how the process is broken. We need less talk and more solutions, so I introduced the Protecting Our Children’s Future Act. I chose this title because getting our budgeting and spending right really is all about the future of our country.”

Kate Ackley, “House Committee Leadership is Becoming a Game of Musical Chairs,” Roll Call:

“At least eight of the chamber’s sitting committee chairmen are quitting Congress — and two additional chiefs have already given up their gavels. These exits come at a cost to the institution, as House Republicans will lose policy expertise, political savvy and procedural prowess.”

Rachel Bade and John Bresnahan, “The place bills go to die,” Politico:

“Goodlatte has long posed an imposing hurdle even for House Republican leaders who should, in theory, be able to pull rank on him. They’ve spent more than five years trying to cajole the 65-year-old Virginia Republican to take up consequential legislation. Instead, Goodlatte has moved slowly or not at all, his GOP colleagues say, often stalling until lawmakers move on.”

Budget and appropriations

Stuart M. Butler and Timothy Higashi, "Three reasons to be optimistic about budget process reform," Brookings:

"It’s been more than 40 years since there was a comprehensive overhaul of the budget process. Every few years Congress attempts a reform, but those efforts are usually modest, or ineffective, or the effort fizzles out. In the most recent budget deal, Congress did lay the groundwork for another attempt by creating a bipartisan and bicameral Joint Select Committee  tasked with coming up with a package of reforms for Congress to consider."

Yuval Rosenberg, "Experts Tell Congress CBO Isn't the Problem," Fiscal Times:

"Here are some highlights from the prepared testimony of outside experts, all of whom defended CBO at today’s hearing."

Susan Ferrechio, “Must-pass spending bill held up by congressional wish lists,” Washington Examiner:

“Disagreements over guns, abortion, sanctuary cities, and other issues are preventing Congress from agreeing to a must-pass spending bill that they hoped to approve by this week, and must pass by March 23.”

Tara Golshan, “Congress has until March 23 to fund the government,” Vox:

“Without an appetite to actually legislate in the midterm election year, Congress still has a job to do: keep the government open. Lawmakers have to pass a spending bill by midnight March 23 or the government will run out of money and shut down — again.”

Jordain Carney and Niv Elis, “Spending talks face new pressure,” The Hill:

“Congress is scrambling to avoid its third government shutdown of the year as lawmakers slog through negotiations ahead of next week’s deadline.”

John Bresnahan and Sarah Ferris, “Congress pushes up against March 23 funding deadline,” Politico:

“Congress is pushing up against a March 23 deadline to fund the federal government, as the House is unlikely to take up a massive spending bill until next week. Multiple House lawmakers and aides say a $1 trillion-plus omnibus funding bill that was supposed to be on the House floor by Friday won't be voted on until next week. GOP sources don't expect the spending package to even be unveiled until the weekend or early next week.”

CFRB, "Appropriations Watch: FY 2018," CFRB Blog:

"Congress is expected to act on further appropriations legislation, including a possible omnibus, the week of March 19. Omnibus legislation would fund the government for the remainder of the fiscal year, through September 30. A budget deal enacted in February that increased spending caps paved the way for an omnibus for the remaining 11 appropriations bills; a Defense spending bill was included in last month's legislation. An additional continuing resolution is also possible if lawmakers cannot work out an agreement on remaining issues before the end of the week. "

Congressional staff

Simone Pathe, “Plenty of Pitfalls for Hill Staffers Doing Campaign Work,” Roll Call:

“Everyone knows there’s supposed to be a separation between official and campaign work. That’s Ethics 101 in Washington. But even the most black-and-white lines are still crossed. And in reality, some lines — like what constitutes government time — are murky, especially when enforcement is lacking.” 

Heather Caygle and Elana Schor, “Congress nears deal to crack down on sexual harassment,” Politico:

“House and Senate negotiators are nearing a deal to significantly rewrite Capitol Hill’s workplace discrimination rules in the hopes of attaching it to a must-pass funding bill in the next two weeks.”

Griffin Connolly, “For Harassment Cases, House Staffers Have Key Legal Resources Others Don’t,” Roll Call:

“Thanks to new internal House policies, staffers in the chamber now have access to a 24/7 hotline for legal advice on employment complaints. They can even retain a free lawyer for the entire in-house counseling and mediation process when they think they’ve been harassed, discriminated against or otherwise aggrieved. But if you’re a U.S. Capitol Police officer, a janitor at the Capitol, an intern on the Senate side or a gardener at the Library of Congress — well, you’re on your own.”

Paul Bedard, “Alumni mobilize effort to restore House Page Program,” Washington Examiner:

“Armed with a new documentary and support from alumni including lawmakers and even former page and Microsoft co-founder Bill Gates, former House pages are launching a bid to restore the program killed in 2011 after a nearly 200-year run.”

Congress miscellaneous

Niels Lesniewski, “Tillerson Termination Adds New Priorities to Senate Calendar,” Roll Call:

“The Senate is scheduled to be in recess the last week of March and the first week of April for Passover and Easter. The next break would be the first week in May. Trump’s personnel moves mean that two of the six session weeks over the next two months could easily be consumed with the senior national security nominations.”

Lindsey McPherson, “House Democrats Punt on Leadership Question After Anti-Pelosi Candidate Wins,” Roll Call:

“House Democrats had plenty to say about the Pennsylvania results, but few wanted to talk about him running as a Pelosi opponent and whether Democrats should consider campaigning for new leadership as a broader election strategy.”

Kevin King, “Twelve States Have No Women in Congress,” Quorum:

“While women make up 20 percent of Congress, only 22 states have 20 percent or more of their state delegation represented by women. The remaining 28 states sit well below that mark—including 12 states with zero female representation.”

Andrew Gelman, “3 cool tricks about constituency service,”

“I’m not saying that that constituency service is a perfect signal; of course it’s just one piece of information. My point is that constituency service conveys more information than I’d realized: it’s not just about the legislator or someone in his office being energetic or a nice guy; it also tells us something about his priorities.”





Would a more competitive congressional budgeting environment improve program performance?

By Stuart Kasdin

Many observers have suggested that the key to making government efficient and effective, operating more like a business, is competition. In our paper, “The Relative Influence of Appropriation Subcommittees: Institutional Structure and Program Performance,” we ask whether this assumption  might also apply  to congressional operations -- what are the consequences of a more competitive congressional budgeting environment?  

The House and Senate appropriations committees each have 12 subcommittees that are responsible for setting the budgets for specific agencies and programs. The appropriations committee chairs divide the overall annual funding level (known as the 302a allocation) into 12 parts (known as the 302b allocations); these allocations set the annual budget totals for each subcommittee to use in funding the different agencies and programs under their jurisdiction. In a sense, appropriations subcommittee members operate much like a consumer in a market, choosing among different agencies, each of which is seeking resources for their programs.

A more competitive subcommittee environment might directly encourage better program quality by weeding out bad programs. Subcommittees can maintain or even increase spending on effective programs, while reducing spending for or eliminating ineffective programs. A competitive subcommittee environment could also indirectly affect program quality: Because agency program managers anticipate that the appropriations subcommittees care about program performance, they are motivated to deliver effective and efficient programs.

Our analysis focuses on the appropriations subcommittees during a period in the George W. Bush administration, when Congress and the White House were both under Republican control. We use scores from the Program Assessment Rating Tool (PART), a metric designed by the Bush administration to formally evaluate the effectiveness of federal programs, to determine whether some appropriations subcommittees are better able to generate improved performance from the agencies under their jurisdiction. 

We consider two characteristics of the subcommittees as influential in affecting program efficiency and effectiveness: The subcommittees’ competitive market environment and their members’ workload.

 Our first hypothesis is that when subcommittee financial resources - the 302b allocations - are lower, the competition for resources is increased and through direct and indirect means, program performance is enhanced. 

Our second hypothesis is that member workloads matter. A lower workload allows subcommittee members to provide more oversight and develop greater expertise over the programs in their subcommittees’ jurisdiction.

We first evaluate our hypotheses in case study form, comparing two sets of program areas identified by OMB and GAO as having similar goals and potentially common performance measures. Because these programs are also spread across different appropriations subcommittees, we can measure the influence of the appropriations subcommittees on program performance.

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The first group of programs, focused on low-income housing assistance, mostly fall within the jurisdiction of the Agriculture, VA-HUD, and Interior appropriations subcommittees. The Agriculture subcommittee had a relatively low workload and low funding levels, and the programs’ performance, as measured by PART, were mostly estimated as ‘moderately effective.’ In contrast, the VA-HUD subcommittee had both high workload and high funding levels; the PART evaluations for programs in this subcommittee were lower, with one program assessed as moderately effective, while four programs were assessed as ‘not performing.’ (Two programs were assessed as having ‘results not demonstrated’ and two were measured as ‘ineffective.’)

Another set of programs identified by OMB as having common goals are the rural water infrastructure programs, which help rural communities locate and improve their water availability. In general, programs in subcommittees with lower workloads and smaller budgets are associated with higher PART scores, while those in subcommittees with higher workloads and higher funding tended to receive lower PART scores.

Our regression analysis confirmed the case study results which showed that subcommittees with smaller budgets and fewer programs to oversee get better program performance results. For the first hypothesis, we found that greater resource availability in a subcommittee was negatively correlated with program effectiveness and efficiency as measured by the PART. However, greater program concentration -  the equivalent of a market environment dominated by fewer firms - is not tied to lower program performance. There is no evidence that the distribution of larger programs within a subcommittee affects how appropriators treat the programs under their purview.

We examine the second hypothesis focused on member workload, both in terms of the range of issues in a subcommittee’s jurisdiction, and in the number of programs subcommittee members are responsible for funding. These variables reflect the subcommittee’s information needs and influence the potential for appropriations subcommittee members to control agencies by monitoring and metering program performance. We find that subcommittees with fewer budgetary decisions to make and fewer programs for which subcommittee members are responsible demonstrated greater performance for the programs under its jurisdiction. Lower subcommittee workload is correlated with better performance by the government agencies the subcommittees oversee.

To improve program performance, Congress could break up the largest appropriations subcommittees. For example, the Education-Labor subcommittee, which includes discretionary spending for the Departments of Education, Labor, and most of the Health and Human Services, as well as some smaller independent agencies, has a mean PART score of 33, the lowest of any subcommittee. It also has the most programs (114), is among the subcommittees with the highest budget functions (8), and has a logged value of spending at 18.76, smaller only than that of the Defense subcommittee. Adding a new appropriations subcommittee (or subcommittees) should increase the capacity for oversight and understanding program operations, leading to more effective agency program design and delivery, as well as the potential for more timely appropriations.

Stuart Kasdin was a professor of public management at George Washington University, served at OMB for over 11 years, and currently serves on the Goleta City Council in California.

Nothing is inevitable in politics, even in the Senate

 Image source:  CNN

Image source: CNN

By James Wallner

The future is not inevitable. And it cannot be predicted with certainty. There is no iron law of history according to which events unfold inexorably.

This is especially true in Congress where, according to Stanford University political scientist, Keith Krehbiel, members with incomplete information make policy decisions on a daily basis under conditions of uncertainty.

Yet despite this, a number of senators appear confident that they can predict with certainty what will happen in the future. In my previous post, I pointed to recent comments by Ted Cruz (R-Texas) regarding the filibuster. He confidently asserts that its days are numbered. “I think if the Democrats ever regain the majority, they’ll end legislative filibuster…That’s where their conference is.”

Cruz’s comments reflect the broader sentiment among Senate Republicans. That is, they are certain that their Democratic colleagues will eliminate the filibuster in the future when they retake the majority. The irony is that Republicans’ confidence about the fate of the filibuster has driven them to push for abolishing it first.

Political theorists call this dynamic the Oedipus effect, a term coined by Karl Popper. The Oxford English Dictionary defines the Oedipus effect as “the influence of a prediction on the predicted event.” Today, we commonly describe it as a self-fulfilling prophecy.

With regard to the filibuster, the fear that it will not exist in the future is leading many Republicans to call for its elimination today. And in doing so, they partially confirm their earlier predictions. Their only mistake being that Republicans, not Democrats, would be responsible for eliminating the filibuster.

The good news for those concerned about the filibuster’s fate is that its elimination is not inevitable. In my previous post, I listed a number of reasons why Republicans cannot assert with certainty what Democrats will do based solely on the fact that they nuked the filibuster in 2013.

Simply acknowledging Republicans’ inability to predict the future does little to reduce the anxiety they feel as a result of its uncertainty. In a sense, they should be heartened by that uncertainty. The fact that the future is not predetermined makes it possible for senators to influence what will happen in it.

The ability to obstruct, at least as we commonly think about it today, is rooted in the Standing Rules of the Senate. Specifically, the ability to filibuster is granted by Rule XXII. Rule XXII requires the support of two-thirds of all senators present and voting to end debate on a proposal to change the Standing Rules. This effectively precludes the majority party from altering the text of those rules over the objections of the minority party.

Yet notwithstanding these super-majoritarian hurdles, Senate majorities have always had the ability to determine the institution’s rules. They may overcome the super-majoritarian barriers erected by Rule XXII by establishing a new precedent by simple-majority vote. While minorities may filibuster such efforts, their appeals can be tabled without debate, also by a simple-majority vote. As a consequence, the majority has the technical means to overcome minority obstruction so long as it is willing to do so.

But Republicans may also deter a future Democratic majority from using its power to eliminate the filibuster. Specifically, they can make credible threats to retaliate should Democrats threaten the nuclear option. This links the Democratic majority’s efforts to go nuclear with sub-optimal outcomes for individual Democrats should they do so. The expectation of increased costs should deter a sufficient number of Democrats from supporting the nuclear option to the extent that the Republicans’ retaliatory threats persuade them that it would be more difficult to achieve their individual goals in a post-nuclear Senate.

Previous work in this area has focused almost exclusively on Rule XXII and the cloture process when explaining how Senate minorities may use parliamentary procedure to constrain the majority. Yet a limitation of such approaches is that they do not demonstrate precisely how those procedures ultimately circumscribe the ability of Senate majorities to change the institution’s rules in the first place. It is true that provisions of Rule XXII requiring a three-fifths super-majority to end debate on nominations and legislation and a two-thirds super-majority to end debate on proposals to change the Standing Rules empower the minority and constrain the majority. Yet Rule XXII itself is subject to alteration by a simple-majority. Thus, the super-majoritarian provisions of Rule XXII are themselves insufficient to prevent the utilization of the nuclear option. In short, Rule XXII itself cannot constrain a determined majority to the extent that it may be changed or circumvented by the nuclear option.

The Constitution, along with the relative importance of the majority’s agenda in a particular Congress, gives Senate minorities the necessary leverage with which to protect the procedural prerogatives granted to them by the institution’s rules and practices. Specifically, these are the provisions in Article I, section 3, clause 4 designating the Vice President as the Presiding Officer of the Senate and Article I, section 5, clause 3 stipulating that any member may call for a recorded vote with a sufficient second.

To the extent that these constitutional provisions make certain retaliatory tactics resistant to restriction via the nuclear option, and to the extent those tactics impose costs on members of the majority party, then the threat to use them makes it possible for Republicans to prevent an otherwise willing Democratic majority from eliminating the filibuster in the future.

Specifically, Republicans can increase the costs of processing nominations and considering routine legislation for Democrats- even in a post-nuclear majoritarian Senate- by requiring a recorded vote for confirmation and passage, respectively. Doing so would increase the physical costs for senators and negatively impact other priorities on the Democrat’s legislative agenda due to the time required to conduct recorded votes.

Similarly, Republicans can increase the political costs of passing that agenda for individual Democrats by forcing votes in relation to politically difficult amendments. They can do so by offering a so-called third-degree amendment despite the majority leader filling the amendment tree and then appeal the subsequent ruling of the Chair that the amendment is not in order. Doing so forces a recorded vote in relation to the amendment and/or the majority to filibuster the appeal.

Both tactics are resistant to restriction via the nuclear option. The only real way to prevent individual senators from offering prohibited amendments and then appealing the ruling of the Chair to force a recorded vote is to have the Presiding Officer not call on senators seeking recognition. Setting aside the impracticality of barring some members, or all members, of the minority party from speaking on the Senate floor in perpetuity, the institution’s constitutional structure effectively precludes chamber majorities from delegating such authority to the Presiding Officer.

Article I, section 3, clause 4 of the Constitution stipulates: “The Vice President of the United States shall be President of the Senate.” The Constitution only allows the Senate to select its Presiding Officer in the absence of the Vice President. Yet any power senators delegate to the President pro tempore will also be available for the Vice President to use whenever he assumes his role as the Presiding Officer of the Senate. As the constitutionally designated Presiding Officer, the Vice President is thus charged with administering the Senate’s rules and ensuring order. Yet because the Vice President is not directly accountable to the Senate, its members have historically been unwilling to delegate significant authority to the President pro tempore, who the Senate may select, because they cannot prevent the Vice President from assuming the Chair and exercising that authority in such a way that would be harmful to their interests.

While obstruction and the value of the Senate’s time have both increased significantly in recent years, it is unlikely that senators would reevaluate delegating significant authority to the Presiding Officer in the face of minority retaliation for going nuclear. Imagine a Democratic majority allowing Vice President Mike Pence, or a Republican majority allowing Vice President Elizabeth Warren, a significant voice in how the Senate sets its agenda and conducts its business! In the absence of a strong Presiding Officer, the tactic of appealing the ruling of the Chair cannot be restricted because members will always have recourse to the floor. The Chair may rule such appeals dilatory, and thus out of order. But those ruling may be appealed.

By threatening these tactics, Republicans can reduce the likelihood that Democrats will eliminate the filibuster over their objections in the future. They offer Republicans the procedural means to persuade rank-and-file Democrats that it is not in their interest to nuke the filibuster. But their effectiveness depends on the extent to which Republican senators are willing to defend the filibuster in the face of additional nuclear efforts to restrict their rights. The current push to further gut the filibuster suggests that both parties would like to see it limited, if not eliminated entirely, in the future.

James Wallner is a senior fellow at R Street Institute.

What the Senate’s past tells us about a future nuclear option

 Image source:  US Senate

Image source: US Senate

By James Wallner

“It is difficult to make predictions, particularly about the future.”

We would do well today to heed Mark Twain’s version of the well-known proverb regarding our inability to say with certainty what tomorrow will bring. Politics, after all, is a complex and dynamic process. Recent events alone should inject a dose of humility in our assumptions about what the future holds.

But in the Senate, members appear more certain than ever that they can see the future.

Take, recent comments by Ted Cruz (R-Texas) regarding the filibuster. He confidently asserts that its days are numbered. “I think if the Democrats ever regain the majority, they’ll end legislative filibuster.” Moreover, Cruz believes that it is inevitable based on his understanding of where Democrats are on the question today. “That’s where their conference is. And it doesn’t make any sense for it be a one-way ratchet — for us to have our hands tied and for them to be able to pass with a simple majority.”

Cruz’s comments reflect the certainty with which many of his Republican colleagues know that Democrats will eliminate the filibuster when they take over the majority at some point in the future. Such confidence is leading many of them to push for abolishing it first.

But senators cannot assert with any certainty what Democrats will do in the future based solely on the fact that they did so in the past. Nothing is inevitable.

Admittedly, the manner in which a party behaved in the past sheds some light on the way in which its members are likely to conduct themselves in the future. Yet the historical record suggests that future action is not determined solely, or even primarily, by past behavior.

Take, for example, just three instances in which the Senate explicitly violated its Standing Rules by creating a new precedent via the nuclear option. Yet rather than using the nuclear option again in the future, the Senate instead reversed the precedent established in each case. The fact that successive majorities did not go nuclear again and again to gut the Standing Rules in each case suggests that additional considerations should be taken into account before making predictions about what will happen to the filibuster whenever Democrats regain the majority in the Senate.

Rule XXII (1975)

The Senate created a new precedent in 1975 at the beginning of the 94th Congress that restricted the filibuster in violation of Rule XXII. Specifically, Senator James Pearson (R-Kansas) attempted to amend Rule XXII to reduce the threshold required to invoke cloture. Yet because the rule clearly required a two-thirds vote to end debate on such a proposal, Pearson’s effort was dependent on a ruling from the presiding officer (or a vote of the Senate) that a simple-majority could invoke cloture on a proposal to amend the Senate’s Standing Rules at the beginning of a new Congress (i.e. the nuclear option). Majority Leader Mike Mansfield (D-Montana) raised a point of order against Pearson’s motion on the grounds that it violated Rule XXII. The presiding officer declined to rule on the question and instead submitted it to the full Senate to be decided. A simple-majority of the Senate subsequently tabled the Mansfield point of order on February 20 by a vote of 51 to 42, thereby endorsing the argument that a simple-majority could end debate on a proposal to amend the Senate’s rules at the beginning of a new Congress.

However, the Senate moved to reconsider the vote by which it tabled the Mansfield point of order on March 3. And on the following day, the Senate voted to sustain Mansfield’s point of order by a vote of 53 to 43, thereby reversing the earlier precedent. This action brought Senate practice back into compliance with Rule XXII.

Rule XVI (1999)

Rule XVI of the Standing Rules prohibits legislating on an appropriations bill. But the disposition of an amendment offered by Senator Kay Bailey Hutchison (R-Texas) to the Emergency Supplemental Appropriations and Rescissions for the Department of Defense to Preserve and Enhance Military Readiness Act of 1995 (Public Law 104-6) during the 104th Congress established a precedent that superseded this prohibition. Specifically, the Hutchison amendment changed federal law regarding endangered species. Senator Harry Reid (D-Nevada) raised a point of order that the amendment violated Rule XVI, which the presiding officer subsequently sustained. Senator Hutchison then appealed this ruling to the full Senate, which overturned the ruling of the Chair by a vote of 57 to 42. The Hutchison amendment was subsequently adopted by voice vote. This action created a new precedent that permitted legislating on an appropriations bill, despite the fact that the decision of the presiding officer was correct technically and the Hutchison amendment was in direct violation of Rule XVI.

Yet as in the previous example, the Senate subsequently reversed the precedent, thereby bringing Senate practice back into compliance with Rule XVI. In the 106th Congress, Majority Leader Trent Lott (R-Mississippi) introduced a standing order as a simple resolution (S. Res. 160) that would have the effect of reversing the precedent established by the Hutchison amendment. The Senate passed S. Res. 160 on July 22, 1999 by a vote of 53 to 45.

Rule XXVIII (2000)

Rule XXVIII of the Standing Rules bars senators serving on joint House-Senate conference committees from airdropping provisions into the final version of legislation. In other words, matter not included in either the House or Senate legislation is not eligible to be included in the compromise agreement that is voted on in both chambers before being sent to the president to be signed into law.

Yet as with Rule XXII in 1975 and Rule XVI in 1999, the Senate created a new precedent (the “FedEx precedent”) that explicitly violated this provision of Rule XXVIII during the 104th Congress. During consideration of the Conference Report for the Federal Aviation Reauthorization Act of 1996 (Public Law 104-264), Majority Leader Lott raised a point of order that the Conference Committee exceeded the scope of conference by including provisions relating to Federal Express, thereby violating Rule XXVIII. The presiding officer subsequently sustained the point of order. In response, Lott appealed the ruling and the Senate overruled the presiding officer by a vote of 39 to 56. Consequently, the FedEx precedent superseded the provisions of Rule XXVIII prohibiting extraneous matter from being included in conference reports.

The Senate restored Rule XXVIII during the 106th Congress. Specifically, the Department of Commerce and Related Agencies Appropriations Act of 2001 (HR 5548) included the following provision reversing the precedent established during the 104th Congress:

Sec. 801. Beginning on the first day of the 107th Congress, the Presiding Officer of the Senate shall apply all of the precedents of the Senate under Rule XXVIII in effect at the conclusion of the 103rd Congress.

This provision was eventually included in the Conference Report to accompany the District of Columbia Appropriations Act for fiscal year 2001 (Public Law 106-553) that was signed into law on December 21, 2000. Additionally, an identical provision was included in the Consolidated Appropriations Act of 2001 (Public Law 106-554), which passed the Senate on December 15, 2000 and was also signed into law by the president on December 21. These actions brought Senate practice back into compliance with the Rule XXVIII.

Additional Considerations

As these cases suggest, additional considerations must be taken into account when speculating on the likely parliamentary behavior of future Senate majorities.

First, Senate majorities are fluid. That is, they change over time. Intra-party dynamics may shift with the election of new members whose views on the filibuster differ from their more senior colleagues. And neither is the position of incumbent members on institutional questions like the filibuster static. It too may change with time in response to experiences like serving in the minority.

Second, the broader political environment will inevitably shape the views of the individual senators who will compose future Senate majorities. Claims that Democrats will inevitably move to eliminate the filibuster in the future must take into account additional considerations such as the geographic distribution of majority-held Senate seats (e.g. red-state Democrats vs. blue-state Democrats), presidential approval and behavior, public opinion on the filibuster, and overall congressional productivity.

For example, Democratic senators representing red states may be less likely to support the nuclear option in the future to empower a progressive president of their own party if doing so makes it more likely that policies opposed by their constituents will become law. Presidential popularity may also impact the ability of party leaders to corral the votes needed to go nuclear.

In addition, public opinion on the filibuster and an imperial presidency may deter individual senators from supporting the nuclear option if doing so is cast in terms of enacting the president’s agenda over all objections.

Finally, more general levels of congressional productivity may undermine arguments that obstruction is excessive or that presidents have no choice but to implement their agenda via unilateral executive action in the absence of efforts to eliminate the filibuster.

To be fair, acknowledging the limits of our ability to accurately predict the future does little to assuage Republicans’ frustration with their inability to legislate in the present. However, the only alternative to eliminating the filibuster is not acquiescing in the status quo.

The Senate’s rules and practices already give the majority a way to stop endless delays of the legislative process. And using those rules will be of greater benefit to Republicans, as well as the institution more broadly, than changing them via the destructive nuclear option. This is because enforcing the Senate’s current rules and practices makes obstruction costlier for members trying to slow down or stop the majority’s agenda.

By increasing the price members pay to obstruct successfully the Senate’s business, those members will be likely to be more selective

James Wallner is a senior fellow at R Street Institute.

ICYMI: Top reads on Congress

 Image source  here

Image source here

By Marian Currinder

Budget and Appropriations

Jennifer Shutt, “With Expectations Low, Select Budget Committee Prepares to Meet,” Roll Call:

“The select committee tasked with overhauling the budget and appropriations process is mandated by law to meet for the first time this week. But what they plan to talk about remains a mystery.”

G. William Hoagland, “Opinion: Pick Up Your Forks. It’s Time for Another Dinner Table Bargain,” Roll Call:

“The table is set. The invitations have been sent. The 16 Senate and House members of the Joint Select Committee on Budget and Appropriations Process Reform have accepted. Now it is time for these 16 diners to sit down and choose from a long menu of options for reforming the broken budget and appropriation procedure that the budget process chefs have prepared over the years.”

Peter Kaspereowicz, “David Perdue: Time to punish lawmakers if they can’t do their jobs,” Washington Examiner:

“Sen. David Perdue says it's time to impose real penalties against lawmakers when they fail to pass budgets and spending bills on time, and thinks the new Joint Select Committee on Budget and Appropriations Process Reform might be the way to deliver those penalties.”

Neil Bradley and Emily Holubowich, "The budget is broken. But not beyond repair," Roll Call:

“We’re encouraged that the recent budget agreement created a bipartisan congressional committee tasked with studying the budget process and offering recommendations to fix it. We urge them to consider our consensus recommendations as a starting place. Each of us involved in developing these recommendations stands ready to work with Congress to help fix this broken process.”

Joe Williams, “Shelby Expected to Assume Appropriations Panel at Prime Time,” Roll Call:

“This year’s legislative landscape appears barren, and expectations are low that the chamber will accomplish much in the run-up to the midterm elections. The appropriations bills offer an alternative for leadership to fill floor time with something other than nominations.”

Jason Grumet, “Opinion: Want to Fix the Debt? Bring Back Earmarks,” Roll Call:

“Many people have ideas about how to help Congress take votes that are essential to the national interest even if they anger constituents. Some believe the answer lies in federal redistricting requirements or campaign finance reform. Others argue for a balanced budget amendment to the Constitution. A far more realistic and effective approach would be to bring back earmarks — those often-lampooned funds for projects in a lawmaker’s district. Critics accuse earmarks of increasing the deficit. I believe the exact opposite.”

Ryan McCrimmon, “10 Policy Issues to Watch in Omnibus Spending Bill,” Roll Call:

“A swath of sticky policy debates could entangle an upcoming final spending package for fiscal 2018, as lawmakers aim to attach their pet policy “riders” to the must-pass bill.”

Ryan Bourne, “Why We Need a Smart Balanced Budget Rule,” Real Clear Policy:

“No sooner had Republicans passed much needed tax reform than they agreed to an awful budget deal that will undermine it. Government spending is the true long-term tax burden of government activity. So, to sustain a new, more competitive tax code, which cuts rates, Republicans should have made spending cuts. This was the perfect opportunity to balance the budget and lock in reform. Instead, Republicans did the opposite: trading their favored huge defense spending increases for Democrats’ desired hikes in other areas. As a result, a deficit already forecast to widen substantially will blow up much sooner, putting the gains from tax reform in jeopardy.”

Joel Gehrke, "David Perdue: Congress may never pass a budget again," Washington Examiner:

“Congress might be done passing budgets, Sen. David Perdue suggested to reporters Wednesday. “I'm not real sure you'll ever see another budget done again,” the Georgia Republican said during a briefing in his office.”

Quin Hillyer, “How to end government shutdowns (or at least make them much less likely),” Washington Examiner:

“To avoid the regular recurrence of those ills, and to make fiscal profligacy at least somewhat easier to ward off, Reps. Bradley Byrne, R-Ala., and Paul Mitchell, R-Mich., on Thursday will introduce a bill to reform Congress’ budget process. The bill makes good sense.”

Congressional Dysfunction/Capacity Issues

Matthew Continetti, “The Missing Republican Agenda,” National Review:

“The lack of a 2018 agenda has had several consequences. It’s meant that Republicans are gambling their majority on the tax cut, which will be close to a year old when polls open in November. Republican leaders return to the tax cut whenever they are asked what their message will be this fall. It’s their safe space. Now, it’s true that support for the tax cut is increasing as the economy reaches full employment. But just as attitudes toward the plan changed once, they may change again. And surely it would help Republican candidates if they had more than one accomplishment.”

Matt Fuller, “House Republicans Weigh a Do-Nothing Agenda for 2018,” Huffington Post:

“Some Republican lawmakers are beginning to ask whether their leaders plan to be ambitious enough with what could be the final months of united GOP control of the government. House Majority Leader Kevin McCarthy (R-Calif.) presented a slide at a GOP conference meeting Tuesday that showed an admittedly incomplete but still rather sparse agenda for the coming months, according to members at the gathering.”

Josh Huder, “Congress in 2018: What’s Left,” GAI at Georgetown:

“With mid-term elections looming, there is neither catalyst nor appetite for big-ticket bipartisan deals. Primaries are already underway, and with each passing week, the eyes of incumbents and their leadership will begin to focus on November of 2018 to the exclusion of much else. In other words, the remainder of the 2018 legislative calendar will be driven by campaign and messaging concerns. Governing will take a back seat to retaining (or reclaiming) the majority.”

Jonathan Bernstein, “Why Republicans Don’t Care About Fixing Washington,” Bloomberg:

“Political polarization has been tearing apart Washington for years, but Republicans have found a way to make it even worse. Unlike just a few years ago, Congress now suffers all of the costs of partisan polarization without many of the very real benefits.”

No Labels, “The Reason Congress Can’t Get Stuff Done,” Real Clear Policy:

“While abiding by the Hastert Rule has become the norm, there are a few dozen examples of its being ignored over the years. Here are five facts you need to know about the Hastert Rule.”


David Hawkings, “How Vulnerable Senate Democrats Have Pushed to the Center,” Roll Call:

“These days, when tribal partisan loyalty defines life for the vast majority in Congress, a lawmaker whose voting record stands out for going against the grain is almost always a lawmaker staring political death in the face. But for a senator from one party in a state where the other party is dominant, the simplest way to survive is to come off as politically independent.”

Sean Sullivan and Paul Kane, “Mississippi’s Thad Cochran to resign from Senate after four-decade congressional career,” Washington Post:

“Sen. Thad Cochran (R-Miss.) will resign from the Senate on April 1, he announced Monday, ending a four-decade congressional career and triggering a fall election that could carve new divisions in the Republican Party and put the GOP Senate majority at greater risk. Cochran, 80, has been suffering from health problems in recent months.” 

Andrew Glass, “Senate witnesses its first filibuster, March 5, 1841,” Roll Call:

“On this day in 1841, and continuing until March 11, the Senate witnessed its first filibuster. Several members, willing to talk at length, objected to the hiring of Senate printers. They took advantage of a Senate rule allowing them to refuse to yield the floor, thereby blocking pending legislation.”

Matthew Continetti, “Senators And Their Pages,” Claremont Review of Books:

“Jeff Flake, Ben Sasse, Mike Lee, Al Franken, and Elizabeth Warren do have something to say, however, and the uneven quality of their prose suggests that, in some cases, they eschewed ghostwriters to say it themselves. Their books want to be taken seriously—even, if you can believe it, ex-Senator Franken’s.”

Congress, Miscellaneous

Jeffrey Lazarus and Amy Steigerwalt, “Why you should vote for a woman in 2018,” The Conversation:

“We argue in our book that all these forces result in female politicians believing that they must spend more time guarding against opposition from constituents, potential challengers and even other politicians. As a result, we demonstrate that female officeholders adopt a distinctly different approach to legislating than men – an approach that results in women providing better representation for their constituents.”

Danny Hayes, “Do women in Congress work harder than their male colleagues?” Washington Post:

“Political scientists Jeffrey Lazarus and Amy Steigerwalt of Georgia State University have just published a book, Gendered Vulnerability: How Women Work Harder to Stay in Office. To mark International Women’s Day, March 8, I talked with them over email about their research. Below is an edited transcript of our conversation.”

Rachel Wolfe, “Exclusive: Congress requires many unpaid interns to sign nondisclosure agreements,” Vox:

“For unpaid interns on Capitol Hill, secrecy is so much a part of the job that on their first day, many are required to sign sweeping nondisclosure agreements. Employment lawyers reviewed two Hill NDAs obtained by Vox and said they are written in a way that could discourage interns from speaking up about anything, potentially protecting members of Congress and their staff even in cases of harassment or abuse.”

Justin Talbot-Zorn, “How to Reverse the Trump-Era Brain Drain,” The American Prospect:

“The need for Congressional staff capacity didn’t start with the Trump Era. As Lee Drutman, Steven Teles, and other political scientists have shown, declines in general staff funding since Newt Gingrich’s speakership have had devastating impacts on Congress’s ability to withstand lobbying pressure, and ultimately on Congress’s ability to ‘think for itself.’”

Derek B. Johnson, "What does the House retirement wave mean for tech?" FCW:

"A wave of House retirements is thinning the tech and cybersecurity policy leadership ranks of powerful committee chairman in Congress. Thus far, nearly 40 House Republicans have either stepped down this session or announced they will not seek reelection in 2018." 

Jay Cost, “Congress Handed to the President the Power to Level Tariffs,” National Review:

“That is, Congress, not the president, was vested with the power to levy tariffs. At the time of ratification, everybody expected that the first taxes from Congress would be “imposts” — tariffs on imported goods. That is exactly what happened, with the Tariff of 1789. Yet the power to levy imposts has been inevitably wrapped up with matters of foreign policy, and foreign policy falls more clearly within the presidential domain.”

Katherine Tully-Mcanus, “New Training Available for Hill Staffers Who Witness Sexual Harassment,” Roll Call:

“New training is now available for staffers on Capitol Hill on what to do as a bystander or witness to sexual harassment as offices move to comply with the new anti-harassment training requirements implemented by the House and Senate late last year.”





Leadership super PACs and the further centralization of power

 Image source:  PBS

Image source: PBS

By Marian Currinder

The direct primary was one of the Progressive Era’s most consequential reforms. Diminishing the role of parties in the nominating process meant that campaigns became more candidate centered and presumably more interesting to voters. By increasing popular participation in electoral politics, reformers hoped that government would become more representational, and that candidates would serve the interests of their constituents, not their parties.

For candidates, taking control over their campaigns meant having to raise money and hire staff. Candidate “branding” became important as the parties relinquished control over congressional elections and media began to play an increasingly influential role in politics. Today, candidates preside over sprawling and complex campaign operations. The average cost of winning a House seat is almost $1.5 million, while a Senate seat runs just over $12 million. The ability and willingness to raise enormous amounts of money is practically a prerequisite for serving in Congress today.

As the role of parties in elections shifted over the course of the 20th century, party committees became service-oriented organizations; rather than handpick candidates and direct their campaigns, they worked to elect the candidates chosen by voters. National party organizations still play an important role in congressional elections, but most of their financial and on-the-ground support is reserved for competitive general election races (though they occasionally do insert themselves into primary races). Fundraising is their chief enterprise.

The alliance between party committees and candidates isn’t always comfortable (Roy Moore’s candidacy for the Senate caused major rifts in the Republican party, for example), but for the most part, committees work to get as many of their members elected as possible. Maintaining or gaining majority control of the chamber is the overriding goal.

Candidates take their seats in Congress not “owing” the party anything because by getting elected, they helped the party achieve its team-oriented goal. There’s no personal attachment or bond formed between candidate and party organization; both play their parts in the election, then move on.

But what if it were party leaders – rather than party organizations – footing the bill for candidate campaigns? Would this dynamic personalize the donor/benefactor relationship in ways that might extend beyond the campaign? The oversized role that congressional leadership super PACs are currently playing in congressional elections may provide us with an opportunity to find out.

The Supreme Court’s Citizens United decision in 2010 opened the campaign finance floodgates to super PACs, committees that can raise unlimited amounts of money and make unlimited independent expenditures in elections. The decision led many to predict the (further) demise of parties which are held to stricter fundraising standards. In short, why would big donors give limited amounts to party organizations when they could give unlimited amounts to super PACs?

Indeed, spending by congressional party organization committees increased only modestly between 2012 and 2016, particularly on the Republican side. The NRCC, for example, raised $162.8 million in 2012 and $170.6 million in 2016 – an increase of less than $8 million over four years. At the same time, spending by congressional leadership super PACs skyrocketed. In 2014, the four super PACs affiliated with the Democratic and Republican leaders of the House and Senate spent a combined total of $114 million; in 2016, these four PACs spent $232 million. Party committees, together with congressional leadership super PACs, outspent all non-party spenders combined by $29 million in 2014 and $132 million in 2016.

So much for the demise of the parties?

Spending by non-party super PACs in House races declined from 2014 to 2016. However, the opposite is true of the two super PACs affiliated with House leadership. Party spending, combined with spending by super PACs run by Paul Ryan and Nancy Pelosi, represented 88-percent of the independent spending in the 34 most competitive House races in 2016. Independent spending in these races exceeded candidate spending by a ratio of 1.31 to 1.  Pelosi’s super PAC spent approximately $44 million on these races and Ryan’s super PAC spent approximately $40 million. In 2014, these super PACs spent $25 million and $10 million, respectively.

It’s worth noting that prior to 2004, candidate spending was never surpassed by outside spending. In 2008, five races broke that norm and in 2012, outside spending topped candidate spending in 10 races. In 2016, candidates in 27 races were outspent by outside groups. Most of this spending can be attributed to parties and leaders.

Given this trajectory, what can we expect from leadership super PACs in 2018? Paul Ryan’s Congressional Leadership Fund (CLF) provides us with one example.

Heading into the 2018 midterm election, the CLF launched a highly sophisticated operation, opening field offices in 27 competitive districts. Corry Bliss, CLF’s executive director, said that the committee has “rejected the traditional model of super PACs” and is “doing things differently by operating a national, data-driven field program.” The committee has already raised almost $37 million and spent over $11 million in three special election races. Eight more field offices are scheduled to open this year as part of the committee’s “$100 million campaign.”

Decisions about investing in these races will be made with an eye toward candidate loyalty. “When we allocate resources this year, heavy preference will go toward those who supported the speaker and president’s legislative agenda,” according to Corry Bliss. That message was made clear last year when the CLF pulled its support for Rep. David Young (R-IA) after he opposed his party’s healthcare bill. The committee closed its field office in Young’s district and transferred staff elsewhere. Bliss said the CLF would not support a candidate who cannot support the president and House leadership.

For the parties, elections are a numbers game; win majority control and move on to the next election. But for party leaders, elections are about building a loyal base as much as they’re about winning. Having served as Speaker since 2015, Paul Ryan certainly understands the challenges of managing divisions within his party. By choosing to throw his significant financial and operational support behind candidates who will toe the leadership line, he sends a clear signal to vulnerable incumbents and first-time candidates alike: Support me and I’ll support you.

There is absolutely nothing surprising about this dynamic. Party leaders have long used their candidate campaign and leadership PAC committees to build support networks in the chamber. Leadership super PACs, however, represent a significant new development in the role that party leaders play in elections. Leaders can give candidates $2,700 from their campaign committees and $5,000 from their leadership PACs, per election. But they can spend unlimited amounts on candidate campaigns, via their super PACs. The $6.2 million Ryan’s super PAC spent getting Karen Handel (R-GA) elected last year, and the $3 million the committee has already spent trying to get Rick Saccone elected in Pennsylvania’s 18th district, is a lot more than the $5,000 his leadership PAC can spend on each candidate’s behalf.

By adding super PACs to their arsenals, party leaders are inserting themselves into candidate campaigns in ways that likely matter well beyond the campaign. Much has been written about the centralization of power in the House, mostly focusing on how leadership increasingly determines policy content and tightly controls floor debate and votes. In this environment, there are fewer entrepreneurial opportunities for rank-and-file members and that suits party leaders just fine. Better to elect and preside over a party of foot soldiers than renegades.

In the absence of legal intervention, unlimited independent spending will continue to dominate the campaign finance landscape. With majority control of both chambers at stake, the 2018 midterms are already shaping up to set new outside spending records, with parties and their leaders taking the lead. Given this dynamic, we should expect to see the ranks of party loyalists continue to swell as more experienced and independent minded members head for the doors.

Marian Currinder is senior fellow in governance at R Street Institute and edits the blog.