Congress: Difficult by design

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(Editor’s note: This article originally appeared in National Review on September 13, 2018.)

By Philip A. Wallach

Daniel Patrick Moynihan once remarked that “the United States is the one nation in the world with a real legislature.” The senator from New York was boasting of our system, but many would take his statement as an indictment. The independence of Congress in our separation of powers makes our elected representatives uniquely able to frustrate the plans of our executive branch and seemingly ensures a parochialism more easily contained in other systems of government. If a legislature is conceived as an organ for “efficiently solving problems,” these are firing offenses. Given how many people conceive of government in these terms today, it is not surprising that we are experiencing a boomlet in articles that urge the scrapping of Congress as we have known it. Indeed, the glaring defects of our current Congress make the case at least superficially attractive.

As with so many of America’s unusual features, however, the distinctive character of our Congress needs to be understood on its own terms. Congress is an embodiment of America’s unmatched commitment to pluralism. As such, it deserves to be mended rather than ended. Efforts to reform Congress will be fraught and messy, but in the past they have succeeded in spite of widespread skepticism.

The same cannot be said for attempts to effect wholesale constitutional change. Since the late 19th century, a parade of writers and (less frequently) politicians have insisted that only root-and-branch replacement of an obsolete governing document could equip America to handle the challenges of the modern, industrial, globalized world. Their intellectual outputs have sometimes been impressive but have almost never produced actual constitutional change. (Some reformers’ involvement in the push for the 17th Amendment is an arguable exception.) Mostly, the reformers have been driven by a horror at the inefficiency of American government, and, mostly, the cure they have sought is a parliamentary system in which the legislature and executive are fused and the governing party is assured control of the agenda.

The most famous expositor of this position was Professor Woodrow Wilson, whose Congressional Government (1885) was the culmination of years of criticism that he began publishing as a Princeton undergraduate. Wilson believed in “the principle of ministerial responsibility,” in which a fully responsible cabinet government could push forward an agenda of its choosing, subject only to the continued consent of the legislature, which would have the power to force the government’s resignation by rejecting its program at any time.

Wilson was hardly alone in his judgment. The Gilded Age Congress inspired disgust in many of his contemporaries, including some of the body’s own leading members. In 1881, responding to a widespread sense of frustration with partisan deadlock and congressional inaction, the Senate appointed a select committee to consider a bill that would have allowed the leading cabinet secretaries to hold seats in the House of Representatives and obliged those secretaries to report weekly to both houses of Congress. The eight-member committee, chaired by George H. Pendleton (D., Ohio) and divided evenly between Democrats and Republicans, unanimously recommended the bill as an appropriate first step in moving America toward the parliamentary best practices of its European peers. It went nowhere.

However tempting, it’s simply wrong to assume that our constitutional system’s critics must have been radicals at heart. In many respects, Wilson himself was a rock-ribbed conservative. Many champions of change have professed an essentially con­servative motivation. For example, William Y. Elliott, a Harvard political scientist who put forth a book-length plan for a new constitution in 1935, said that he feared “an unworkable legislative system of checks and balances will be superseded in times of crisis by executive authority more and more Caesarian in character.” In other words, a failure to remake our own system would open the door to Communism or Fascism. In 1942, a similar rationale animated no less a conservative icon than Henry Hazlitt to map out a move to a parliamentary system in a book he reissued after Watergate.

In various ways, today’s critics often lay claim to a similar conservative impulse, asserting that if the system is not reformed to allow it to better bend in the democratic wind, it will end up broken to pieces. Vox’s Matthew Yglesias channels the comparative research of Juan Linz, who studied the coup-prone presidentialism of Latin America, to say that our democracy itself is in peril if we fail to adapt. Lee Drutman of New America argues that if we fail to adopt a multiparty system, we will be doomed to see fringe elements capturing one of our two major parties again and again. In his view, figures such as Donald Trump are properly co-opted and marginalized as minor-party leaders in proportional-representation systems. At worst they can become only junior partners in a coalition government, whereas in our system they can hijack a major party with the support of only a small, angry minority.

Fear of an actual regime collapse (of the sort that ends with the generals in charge) seem rather overblown. This isn’t because America’s constitutional system is incapable of such a collapse, however, but rather because the actors operating within it are capable of incremental policy evolution instead of pure stagnation or wild lurching. If the constitutionally prescribed path of congressional legislation is blocked, the president and executive branch find ways to circumvent it — a lesson made clear by the second Obama administration. If the president goes too far or moves too fast in trying to change the direction of policy, entrenched bureaucrats, courts, the foreign-policy establishment, and Congress will box him in — a lesson that many observers of the Trump administration recognize by now.

By no means is this a triumphant portrait; Ross Douthat calls it “constitutional decadence.” This system yields only a pale shadow of the separation of powers’ intended virtues while partaking fully of its disadvantages for efficient government. But if this diagnosis is correct, the chances of mustering the confidence and unity necessary for a full-scale overhaul seem scant indeed.

That prospect of drawn-out mediocrity has led some would-be reformers to lean into presidentialism as much as possible without having to seek a complete constitutional overhaul. Two leading scholars of the presidency, William Howell and Terry Moe, neither of whom is a partisan thinker, offer a polemical argument to this effect in Relic(2016). If we follow our reason rather than a sense of nostalgia for a simpler time, they write, we should seek to continue the progressives’ project of government re­form by marginalizing Congress, which is properly regarded as a body of “extraordinarily sophisticated parochialism.” To do so would create room for more rational, coherent governance as well as enhance democratic accountability through presidential elections that are more clearly decisive. A single, short constitutional amendment could revolutionize the system by endowing the president with unlimited power to propose legislation and receive quick up-or-down votes from Congress, in the manner of the president’s Trade Promotion Authority (TPA). (Under their amendment, the president’s proposals would become law by default in the face of congressional inaction.)

They contend that a supercharged president would pursue the national interest far better than the factious Congress can. What TPA did for trade, Howell and Moe’s fast-track proposal power would do for budgets, foreign policy, energy — everything. Their expectation is that smaller deficits, wiser diplomacy, a sensible climate policy, and a happier American people would emerge.

Of course, given the strength of the recent cross-partisan push to repoliticize trade, Howell and Moe’s lionization of TPA’s ability to transcend petty politics is ironically timed. When governing elites suppress political dissent on an issue, that dissent is likely to explode back onto the scene in unpredictable ways. Multiparty proportional-representation systems or no, democratic deficits in Europe have come home to roost, and our own populist moment ought to be understood in the same light. Critics of our system rail against “Congress” as a metonym for “an unruly, disagreeable democratic electorate”; as armchair rulers, they would prefer to banish from view the problems posed by our divergent aims and values, the better to get down to the complicated work of social optimization.

In reality, however, a country of 325 million citizens is necessarily a place full of political conflicts, and we can only choose between trying to suppress them and letting them play out in plain view. For all its inability to achieve efficiency, Congress is admirably suited to the latter choice, which is clearly the more sustainable one. A friendly critic of Hazlitt’s 1942 proposal noted that the parliamentary system “demands, to a far greater degree than our Congressional system, a sacrifice of the initiative, independence and individuality of the ordinary legislative member. The M.P. must merge himself with his party; the Congressman may stand alone.” In creating that possibility, the Framers created a political role in which ambition was put in service of representing parochial concerns. This was not an oversight but a purposeful and central feature of the system.

As James Burnham explained in his Congress and the American Tradition (1959), Congress is the institution onto which the Framers inscribed their basic skepticism of ultimate solutions. It ensures a diffusion of power that tracks the diffusion of the population over its vast expanse (in the House) and the authority reserved to the states (in the Senate, a feature that particularly enrages democratic purists today). Because of the Senate’s staggered elections, it ensures that transient majorities cannot simply have their way. This design is not intended to ensure that we end up with better policies. Instead, Congress is the beating heart of representative government, and Burnham says its cacophonous multiplicity is the only way “the irreducible variety of the people’s interests, activities and aspirations [can] find political expression.”

This image is an appealing one for our diversity-revering age, but its critics say that the rise of polarization has made it a mirage. Our current Congress seems to contain not multitudes but two teams aiming at each other’s throats. Roll-call votes seem to show a greater separation between the parties than ever before. What little policymaking Congress does is tightly controlled by majority-party leaders’ offices. Issues that do not fit into the majority party’s national electoral pitch are scrupulously ignored. For these reasons, highfalutin talk of “multiplicity given voice” rings hollow.

These complaints are all fair, but it is a non sequitur to leap to a call for constitutional reform. Congress has not always been this way, and plenty of its own members are fed up with it today. We should therefore embrace rule changes that reduce the leaders’ roles, give members on committees a real chance to forge coalitions of convenience, and take the lid off of intraparty fights over defining issues such as entitlement spending and immigration. We must fight constitutional decadence by finding ways to put politics where it belongs — in the first branch.

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

Upcoming Event: Can the House Strengthen Civil Enforcement of Subpoenas to the Executive Branch through Rules Changes?

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Please join Good Government Now and the Legislative Branch Capacity Working Group for a panel discussion and lunch with:

Michael L. Stern

Stanley M. Brand

Michael D. Bopp

Event details:

Friday, September 21, 2018                                                                                                              12 noon – 1:30pm                                                                                                                            2226 Rayburn House Office Building                                                                                        Please RSVP here

Event Description:

The executive branch has obstructed legislative information gathering with increasing frequency and effectiveness for the better part of the last two decades.  Executive agencies have become ever more adept at undermining congressional inquiry by asserting a panoply of non-constitutional privileges, meritless objections, and questionable policy, legal, and procedural delaying tactics.  Members of Congress and congressional committee staff have become increasingly frustrated by their inability to enforce their constitutionally legitimate information demands and are searching for solutions to restore the efficacy of congressional investigation.  

Good Government Now Senior Policy Fellow Michael Stern has proposed a partial solution to the crisis in declining congressional oversight authority in the form of an amendment to the rules of the U.S. House of Representatives to improve compliance with information requests and enforcement of subpoenas to the executive branch.  Stern proposes creating an option for committees to tighten current processes for administration of written requests and subpoenas by requiring all executive branch objections and assertions of privilege in writing with detailed privilege logs by strict response deadlines.  The rule would establish an escalating, multi-phase adjudication process beginning with negotiation and accommodation and proceeding through subpoena, committee ruling, and sanctions phases.  Executive branch non-compliance would result in prompt escalation to the next adjudicative phase on a congressionally-mandated timetable. 

The rule invokes multi-track enforcement for unresolved disputes including civil enforcement in federal court, points of order against appropriations for salaries of recalcitrant executive branch officials, and initiation of preliminary impeachment inquiries if the conduct of obstructive officials so warrants.   It differentiates disputes involving claims of executive privilege from those that do not and channels only the latter, which are best-suited for court decisions favorable to Congress, toward civil enforcement.

A distinguished panel of congressional oversight experts will evaluate the merits of Stern’s proposed “Rule on Information Requests and Subpoenas” in this luncheon discussion.

Hope to see you there!

 

ICYMI: Top reads on Congress

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By Marian Currinder

Lee Drutman and Kevin Kosar, “The Other Biggest Problem in Washington,” New York Times:

“A supine Congress unable to hold a president accountable. Members who find the job miserable (except for the status). A persistent problem of understaffing and lack of policy expertise. For decades, Congress has faced these growing problems and others. The Trump era has thrown them into overdrive.”

Jeffrey Rosen, “America is Living James Madison’s Nightmare,” The Atlantic:

“What would Madison make of American democracy today, an era in which Jacksonian populism looks restrained by comparison? Madison’s worst fears of mob rule have been realized—and the cooling mechanisms he designed to slow down the formation of impetuous majorities have broken.”

Jack Crowe, “Ruth Bader Ginsburg Calls Kavanaugh Hearings a ‘Highly Partisan Show,’” National Review:

“Contrasting Kavanaugh’s hearings last week with her own, which occurred in 1993, Ginsburg called the partisan grandstanding of Democrats “wrong” and expressed a desire to return a spirit of collegiality to the process.”

Patricia Murphy, “Congress Handled 9/11 and Anthrax. Now It Brings Catastrophe on Itself,” Roll Call:

“We’re now on the doorstep of a constitutional crisis because Democrats and Republicans spend more time attacking each other as enemies, instead of being allies in the fight against the enemies we know this country is facing.”

James M. Banner, Jr., “House Hostility, Senate Smackdowns,” Weekly Standard:

“What’s more, it brings to the fore a subject—verbal abuse and physical violence, rooted in politics, on the floor of the United States Congress—that has never received the attention that Joanne Freeman brings to it. A superb, serious, authoritative, lively, occasionally amusing work of scholarly bravura, her book is also timely—although today’s circumstances, not the author, make that so.”

Lindsey McPherson, “Good Government Groups Urge ‘Systematic Reform’ of House Rules,” Roll Call:

“Twenty outside groups that seek to promote good government sent a letter to House lawmakers Wednesday morning, urging them to take back their individual power and overhaul the chamber’s rules.”

Lindsey McPherson, “Too Soon for Rules Talk, Uneasy House Members Say,” Roll Call:

“Revisiting the House rules is a normal task lawmakers undertake every other fall, but this year, several members are uneasy about beginning that process ahead of a midterm cycle in which the chamber majority could change hands.”

Lindsey McPherson, “15 Members Pledge to Withhold Speaker Vote Without Rule Changes,” Roll Call:

“At least 15 members of the bipartisan Problems Solvers Caucus have pledged to withhold their vote for speaker if the candidate that emerges as the majority party’s nominee does not back the caucus’s proposed rule changes.”

Casey Burgat, “Proposed GOP Rule Change Is a No Good, Very Bad Idea,” Real Clear Policy:

“The most obvious implication of this proposal is that it would remove any pretense of individual representation on the part of the members. Instead, if adopted, allegiance to party — and particularly party leaders — would come before district.”

Jonathan Bernstein, “Republicans Want to Change the Rules. They Know It’s a Bad Idea,” Bloomberg:

“Good catch by Casey Burgat, who flags a House Republican proposal to shift more influence within the chamber from individual members to the party leadership by means of a rule change that would threaten committee assignments and chairmanships of those Republicans who vote against their party or sign on to discharge petitions.”

Kris Kolesnik, “GOP destroyed oversight — Dems obligated to clean up mess if elected,” The Hill:

“Oversight by Congress is a lost art. What Republicans have wrought is downright destruction. If Democrats re-take either chamber of Congress in November, they are obligated to resuscitate that function Republicans have allowed to atrophy in service to their president.”

Greg Sargent, “If Democrats win, they’ll have a big mess to clean up,” Washington Post:

“In short: If Democrats do take back some or all of Congress, they’re going to have a lot of cleaning up to do. And while it’s tempting to think that all this means is exercising the oversight on President Trump that Republicans have not, it’s not that simple.”

Sarah Ferris, “House, Senate leaders strike spending deal, tie Trump's hands on shutdown,” Politico:

“House and Senate spending leaders said Thursday they have struck a deal on a massive package that would fund two-thirds of government, including some of the largest federal agencies — and the bill would also box in President Donald Trump.”

Katherine Tully-McManus, “What Congress Wants to Study and ‘Explore’ About Itself,” Roll Call:

“What to do with some basement ambience, Horse-mounted police and Dunkin’ Donuts are but a few questions appropriators want answered as they look to fund Congress and its agencies to the tune of $4.8 billion.”

Jennifer Shutt, “Potential Fiscal Year Move Sows Discord on Select Budget Panel,” Roll Call:

“The federal government may soon operate on a fiscal year that begins on Jan. 1, if the Republican co-chair of a special committee charged with overhauling the budget and appropriations process has his way. But Democrats on the panel are not sold, throwing into doubt tentative plans to release a full slate of recommendations this month.”

Kate Ackley, “Democrats Weighing Earmark Revival if They Take Back House,” Roll Call:

“Numerous congressional insiders — including lawmakers, staff and lobbyists — say that the GOP ban on earmarks has led to increased legislative gridlock on Capitol Hill because it took away pivotal incentives for vote wrangling.”

G. William Hoagland, “What Would Pete Domenici Think?” Roll Call:

“His biggest concern today would be the country’s fiscal outlook. He would be upset that the Republican Party has lost its moorings and thrown away its claims to fiscal responsibility. When he supported the 2001 Bush tax cuts, it was within the framework of reducing a projected surplus, not to expand a deficit.”

Michael Burke, “Pelosi: I’m here as long as Trump is here,” The Hill:

“House Democratic Leader Nancy Pelosi (Calif.) told CNN in an interview set to air Monday that she plans to remain in her role as long as President Trump is on office.”

Rachel Bade, “Power struggle looms for House Republicans,” Politico:

“But behind the scenes, the rivalry between the two men is as intense as ever, as the moment of reckoning to determine who will replace Paul Ryan draws closer — and the prospect of losing the House in the midterms grows.”

Katherine Tully-McManus, “Steny Hoyer Touts Oversight and Ethics Standards as Key to Trust in Government,” Roll Call:

“Efforts to boost transparency, ethics and oversight are among House Minority Whip Steny H. Hoyer’s strategies for restoring Americans’ trust in government if Democrats win the House majority for the next congress.”

Ella Nilsen, “House Democrats’ top priority if they win in November is a sweeping anti-corruption bill,” Vox:

“The agenda — recently formalized by a House resolution — is designed to rein in the influence of money and lobbying in Washington, expand voting rights in the United States, and increase public financing of campaigns. Democrats are prepping a final version of a bill to be ready to go if they are in charge by January 2019.”

Katherine Tully-McManus, “Accountability Groups Back Boards Ban for Lawmakers,” Roll Call:

“Government accountability groups are backing a resolution, to prohibit members of Congress from serving on the boards of publicly held companies.”

Nicholas Fandos, “In an Increasingly Diverse House, Aides Remain Remarkably White,” New York Times:

“House aides write federal policy and multitrillion-dollar budgets, oversee the administration of government and shape the public’s view of Congress, but the top staff members of the House of Representatives are far less racially diverse than the country itself — or even the lawmakers who employ them.”

J.J. McCollough, “Why States Still Matter,” National Journal:

“Assuming existential debates about the Senate will increase as its partisan imbalance grows starker, those supporting the Senate status quo will only be persuasive to the extent that they can remind voters why states matter.”

Katherine Tully-McManus, “46 Republicans Call on Ryan, McCarthy to Reauthorize the Violence Against Women Act,” Roll Call:

“Nearly 50 House Republicans are calling on Speaker Paul D. Ryan, R-Wis., and Majority Leader Kevin McCarthy, R-Calif., to bring a reauthorization of the Violence Against Women Act to the floor before it expires Sept. 30.”

How filibustering and strategic parties contribute to gridlock

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By Gregory Koger

Filibustering: the Fourth Veto

The U.S. Constitution lays out a system with three veto players: the President, the House of Representatives, and the U.S. Senate, with each chamber presumably making decisions by majority vote. The Constitution, of course, says nothing about political parties, which soon formed and promoted cooperation across the three institutions. A cohesive majority party—or one able to artificially induce cohesion by pressuring members or rewarding loyalty—can reduce our legislative process to a single-veto system.

Filibustering is the strategic use of delay in a legislative chamber. My book, Filibustering, shows that over the course of Congressional history there has been organized, consequential filibustering in both chambers of Congress. In the late 19th century the House cycled from occasional filibusters to permanent obstruction to massive reforms installing simple majority rule. My book traces the Senate’s transition from occasional, public, high-effort filibusters in the 1950s to institutionalized supermajority bargaining in the present day. The driving factor in this transformation was the increasing value of time, both for senators as individuals and the Senate as a collective. As time became more valuable and scarce, the cost of a prolonged filibuster on the Senate floor increased so that senators would rather concede to the threat of a filibuster than force the threatening senator(s) to follow through on the threat.

In its current form, filibustering adds a fourth veto to our legislative process, and usually ensures that both major parties in the Senate wield a veto. Unlike the other three vetoes, however, filibustering is an informal practice subject to reform by a simple majority of chamber. This endogenous veto has been sustained through strategic restraint (choosing not to filibuster when it will provoke reform) and majority acceptance of filibustering.

There are several reasons why majority party senators might defend the right to obstruct, but a critical one is that they often recognize the downside risk of being the median voter (and thus pivotal) when their party is trying to pass controversial legislation. We observed this in 2017 when senators voted on controversial bills on health care and tax reform using the budget reconciliation process. Republican senators had to vote for bills they publicly denounced or vote against bills they had promised to support. Historically, a pivotal number of majority party senators have realized that the combination of simple majority rule and party pressure is a recipe for bad policies and misrepresentation of their constituents.

Last, Filibustering provides evidence for a more nuanced understanding of how veto players relate to gridlock. Obviously, senators sometimes filibuster to block legislation, and these efforts can succeed. And, as one might expect, senators also filibuster to force a majority to moderate its proposals. Critically, however, senators also filibuster to expand the Senate’s agenda—both to ensure open debate on legislation, and to hold majority proposals hostage until they get a chance to vote on their own priorities. For example, Senate Democrats repeatedly filibustered to bring up campaign finance reform in the late 1990s, thereby raising the profile of the issue.

Strategic Partisanship

In another major work, Matt Lebo and I explain how legislative parties can contribute to gridlock. Our model starts with the observation that winning elections is the paramount goal of Congressional parties, not changing policy. Enacting laws may contribute to this goal, but it can also detract from it. Legislative party leaders may prefer to vote on “message” legislation that reinforces party brands and provides talking points without actually solving policy problems.

We do find that parties improve their electoral prospects by winning legislative votes, but voters punish them—individually and collectively—for excessive partisanship. Both parties thus face a tradeoff between the positive benefits of winning votes and the negative costs of the party unity that helps them win. And it means that “winning” is a zero-sum game: one party’s electoral advantage through winning contested votes is the opposing party’s loss.

The result of this calculus is an arms race between the two parties, so the strength of one party is a function of both its own cohesion and the strength of the opposing party. The current House Republicans illustrate this nicely: they are internally divided on a range of major issues, but competing against a (seemingly) united Democratic party. Speaker Ryan ends up taking a central role trying to unite a fractured conference that cannot moderate its proposals or attract Democratic votes.

The practical implication is that one aspect of reducing gridlock is to increase the payoffs for enacting laws. As long as majority parties believe that legislating is more costly than posing, and minority parties pay minimal costs for blocking legislation rather than negotiating a bargain, members of Congress will find success more dangerous than failure.

Gregory Koger is a professor of political science at the University of Miami.

Additional Readings

Den Hartog, Chris, and Nathan Monroe. 2011. Agenda Setting in the U.S. Senate. Cambridge University Press.

Koger, Gregory. 2006. “Cloture Reform and Party Government in the Senate, 1918 to 1925.” Journal of Politics, August, 68(3):708-719.

Koger, Gregory. 2010. Filibustering: a Political History of Obstruction in the House and Senate. University of Chicago Press.

Koger, Gregory, and Sergio Campos. 2014. “The Conventional Option.Washington University Law Review, July, 91(4)867-909.

Krehbiel, Keith. 1998. Pivotal Politics. University of Chicago Press.

Reynolds, Molly. 2017. Exceptions to the Rule. Brookings Institution Press.

Tsebelis, George. 2002. Veto Players. Princeton University Press.

What’s in the FY2019 House Legislative Branch Appropriation?

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By Casey Burgat

On September 10th House and Senate Appropriations Committees announced details of the first of three FY2019 minibus appropriations packages after reaching a conference agreement on appropriations bills for Energy and Water Development, Military Construction and Veterans Affairs, and the Legislative Branch. The joint explanatory statement describing the rational and funding levels for the minibus can be found here.

For those focused on the Legislative Branch, the appropriations bill gives plenty of reasons to be happy. Here are some highlights:

  • The Legislative Branch (House and Senate) was appropriated $136 million more than for FY2018. The FY2019 total stands at $4.836 billion.

  • The House and joint operations received a bump of $129 million over FY2018 to $3.8 billion.

  • House standing committees saw their funding increase by $737,000. Not a huge increase but up is better than down. Interestingly, though, funding for the House Committee on Appropriations decreased by $113,000. Funding levels for joint committees remained flat.

  • The House Members’ Representational Allowance (MRA) increased by nearly $11 million. The Senate Official Personnel and Office Expense Account was given a $5 million increase over FY2018.

  • All House and Senate leadership offices received bumps over FY2018 levels, too: Speaker +$479k; House Majority Leader +$463k; House Minority Leader +638k; Majority Whip +$310k; and Minority Whip +$240k.

  • Plus, $8.8 million was appropriated for payment of House interns, capped at $20k per office. The Senate approved $5 million ($50,000 per office) to pay its interns.

  • The Senate was directed to conduct a study on staff pay and retention, though the conference report stripped language that called for comparisons across race, ethnicity, and gender. A small step in the right direction.

  • The Congressional Research Service (CRS) was given $21 million more for FY2019 for salaries and expenses to hire more expert staff “to be more responsive to congressional requests.”

  • CRS was also directed to conduct a “technology assessment study” to potentially restore funding to the now defunct Office of Technology Assessment (OTA) to ensure Congress is staffed with experts who provide “nonpartisan advice on issues of science and technology.” Read more about the OTA revival here.

  • The Government Accountability Office (GAO) was granted funding to hire an additional 50 full-time equivalents (FTEs) for issues relating to cybersecurity, science and technology, Department of Defense programs, and health care costs. The GAO hiring plan calls for 130 more FTEs over the FY2018 levels.

  • GAO was also encouraged to “reorganize its technology and science function” in order to revamp its expertise “in the field of emerging and current technologies.”

  • The House Office of Legislative Counsel (HOLC) received a $2 million bump “to meet its statutory responsibility and support Members and staff throughout the legislative process.”

  • Security was a huge winner in the appropriations bill with the Capitol Police increasing their funding more than $29 million over FY2018 levels. Also, $1 million was itemized for member security at off-campus events.

  • The Architect of the Capitol (AOC) received a total increase of $21,640,000 over FY2018 levels. Increases include $23.465 million for Capitol Police buildings, grounds, and security; $10.484 million for Capital construction and operations; and $7.356 million for the Capitol Power Plant.

  • $3 million was appropriated for the expansion of the Wounded Warriors congressional fellows program, which would provide an additional 25 two-year fellowships for a total of 110 fellows.

  • The House Chief Administrative Officer’s office was given a considerable increase of $15.143 million.

  • The Copyright Office received an increase of $15,143,000.

  • The Congressional Budget Office (CBO) increased its funding by $792,000. Hey, it’s something.

  • The Office of Compliance (OOC) was given an additional $1,373,670 above FY2018 levels to expand harassment and discrimination training and reporting processes.

For those who want even more of the nitty gritty details, the full breakdowns of each spending category can be found beginning here.

 Casey Burgat is a governance fellow at the R Street Institute.

Kavanaugh's inevitable confirmation

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(Editor's note: This piece was originally posted by the Government Affairs Institute on September 5, 2018.)

By Susan Sullivan Lagon

To no one’s surprise, the 176th nominee to the U.S. Supreme Court will likely soon become its 114th justice. Judge Brett Kavanaugh owes his nomination to President Donald Trump, but if confirmed, it will be thanks to former Senate Majority Leader Harry Reid (D-NV) and current Senate Majority Leader Mitch McConnell (R-KY). Lowering the cloture requirement for judicial nominations in the Senate has made confirmation a simple exercise in partisan politics. (For background, see here.)

Gone are the days when Justice Ruth Bader Ginsburg–arguably the most liberal member of the current Court–was approved 96-3 and the late Justice Antonin Scalia–the exemplar of conservative jurisprudence–was confirmed 98-0.  Even before the Senate’s rules changes, votes were getting closer. Justice Sonia Sotomayor was confirmed 68-31 and the vote for Justice Elena Kagan was 63-37. The Kavanaugh vote will probably mirror that of Trump’s first Supreme Court pick, Justice Neil Gorsuch. He was confirmed 54-45 in the first vote requiring just a simple majority, ushering in an era without any attempt at bipartisan consensus.

Political scientist Lee Epstein has observed the growing importance of party and ideology in federal judicial selection while noting that the ideological distance between Democrats and Republicans in the Senate is greater than at any time since Reconstruction. Among her findings: More than 75% of nominees shared their president’s ideology before they were appointed, 89% have come from the same party, and Senate majority parties have confirmed 83% of judicial nominees from their own party.  For those wondering how Kavanaugh might vote, Epstein’s research shows that Supreme Court justices vote with the President that nominated them an average of 65% of the time.

The composition of the federal bench is a president’s enduring legacy. Former President Barack Obama was able to install 329 federal judges during his two terms, leaving 9 of 13 U.S. (Circuit) Courts of Appeals with a majority of judges appointed by Democratic presidents. So far, Trump has nominated 99 judges to District Courts and 36 to the Circuit Courts. If Republicans retain their majority in the Senate, he is on course to replace almost a third of all active federal judges. He has already appointed more Circuit Court judges than any other recent presidents at this point in their terms.

Trump has outsourced the selection of judges to conservative groups such as the Federalist Society, even going so far as to announce a list of prospective picks during his campaign to reassure conservatives. His fellow Republicans have tolerated a growing list of constitutionally questionable actions and behavior once unthinkable for an occupant of the Oval Office.  Some feel this is in exchange for his making good on his promise to appoint judges willing to reconsider existing law on issues such as abortion, LGBT rights, affirmative action, environmental regulation, voting rights, due process for immigrants, policing practices, and a host of other issues.

Because the Supreme Court hears only about 80 cases a term, 99% of federal cases are settled at the lower courts. Trump has been strategic, concentrating first on Circuit Court appointments in states he won where a Democratic senator is up for reelection, for example, Pennsylvania, Michigan, and Indiana. Vulnerable Democratic senators in states that Trump won may well cross the aisle to approve Kavanaugh, just as three did with Gorsuch. Minority Leader Charles Schumer (D-NY) is unlikely to force them to walk the plank in the name of party unity.

The stakes are enormous. Any justice Trump appoints will tilt the balance of the Court by replacing Justice Anthony Kennedy, the pivot point for so many closely divided decisions. Decisions that had been 5:4 could go 4:5 the other way, just as they did when Justice Samuel Alito replaced Justice Sandra Day O’Connor.

There is no question that Kavanaugh, a veteran of the D.C. Circuit like Chief Justice John Roberts and Justices Ginsburg and Clarence Thomas, is well qualified. Any Republican president might have chosen him. But is it merely coincidental that he takes a very expansive view of executive power and prerogative? He served five years as White House Counsel and Staff Secretary in George W. Bush’s White House and is on record as opposing civil suits against– and criminal investigations of –sitting presidents, although he has stopped short of declaring them unconstitutional.

The obvious question asked at Kavanaugh’s Judiciary Committee hearing is whether President Trump would have to comply with a subpoena issued by Special Counsel Robert Mueller in the ongoing Russia probe. Judicial nominees have become experts at dodging hypothetical questions during hearings. Justices, however, might be asked to decide a real one soon.

Susan Sullivan Lagon is Nonresident Senior Fellow at GAI at Georgetown University and Historian at the Jefferson Hotel in Washington, D.C.

ICYMI: Top reads on Congress

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By Marian Currinder

Sarah Binder, “Confirmation hearing fireworks are likely to be the new normal,” Brookings FixGov:

“If confirmation is likely, why so many fireworks? A pivotal vacancy, intense partisanship, and a majority inclined to bend the rules have markedly polarized advice and consent—setting a precedent for fights over future nominees.”

James Hohmann, “The Daily 202: Kavanaugh hearing offers an ‘unprecedented’ display of the Senate’s institutional decline,” Washington Post:

“No one who watched yesterday’s circus could credibly call the Senate the world’s greatest deliberative body. It certainly isn’t what James Madison had in mind when he designed the upper chamber as a cooling saucer on the passions of the people’s representatives in the House.”

James Wallner, “Neither party treats Supreme Court nominations like the Founders intended,” Washington Examiner:

“In short, no one expects Kavanaugh’s confirmation to be derailed because the confirmation hearings are not intended to reveal the kind of information that could jeopardize a nominee’s chances. This is because senators generally avoid close scrutiny of a nominees’ views on specific cases that may come before the Supreme Court in the future.”

Amber Phillips, “‘Congress has decided to self-neuter.’ One senator’s compelling theory for why the Kavanaugh hearings are so ugly,” Washington Post:

“In a word: Congress. In a few more words: Congress is ab­di­cat­ing its duty to write laws, which leaves people to place their hopes in the ju­di­cial branch to try to get their prob­lems solved.”

Jim Geraghty, “Should Public Seating at High-Profile Congressional Hearings Continue?” National Review:

“It may be time to ask whether the tradition of limited seating for the public at high-profile congressional hearings should continue.”

James C. Capretta, “Congress Must Grow to Check the Administrative State,” Real Clear Policy:

“The executive branch so dominates policymaking that Congress often stands by as major aspects of public policy get rewritten without any change to underlying law. The country’s founders wanted the people’s representatives in the House and Senate to serve as checks on an overly assertive executive branch. Congress’s persistent failure to properly fulfill this essential constitutional role in recent years is one reason the nation’s politics are out of balance.”

David Winston, “If Congress Wants More Lions, It’s Time to Change the Habitat,” Roll Call:

“If we want more lions, we need to breathe new life into a bipartisan ecosystem that respects and rewards men and women who put the country first and politics second. We can start with three steps.”

Christopher DeMuth, "The Difference Congress Makes," CRB:

"Books about Congress typically compare the existing institution to a procedural ideal. Is Congress making good use of its constitutional powers? Is it fairly representing democratic sentiments? Is it legislating through deliberation and compromise, so as to moderate the clash of factions and pursue some approximation of the national interest? Is it accountable?"

Richard Eldred, “Congressman Keating laments Washington dysfunction,” Wicked Local Chatham:

“Congress is a winner take all system,” he explained. “The party in the majority is in absolute control. Their leadership decides if a bill even comes to the floor or if there is a debate. They control the horizontal. They control the vertical.”

Nicholas Fandos, “Democrats, Eyeing a Majority, Prepare an Investigative Onslaught,” New York Times:

“House Democrats, increasingly optimistic they will win back control in November, are mining a mountain of stymied oversight requests in preparation for an onslaught of hearings, subpoenas and investigations into nearly every corner of the Trump administration.”

Melanie Zanona, “Republicans mull new punishments for dissident lawmakers,” The Hill:

“House Republicans are chewing over a proposal to hold members accountable for not voting along party lines or for  signing discharge petitions — two acts of rebellion that GOP leadership has had to grapple with this year.”

John Bresnahan and Burgess Everett, “Pelosi vs. McConnell could dominate Congress in 2019,” Politico:

“With Democrats increasingly favored to win the House in November and Republicans to keep their hold on the Senate, the Pelosi-McConnell dynamic is poised to become one of Washington’s most consequential political relationships — one fraught with tension but also holding the potential for legislative breakthroughs spurred by decades of congressional deal-making.”

Lindsey McPherson, “Blue Dogs See Single-Digit Majority as Their ‘Sweet Spot,’” Roll Call:

“The nearly moribund Blue Dogs, the coalition of moderate-to-conservative House Democrats, are looking to rebuild influence in the next Congress — and they think they’re in an especially good position to do so if the November midterms result in a single-digit House majority.”

Rachel Bade and John Bresnahan, “GOP leaders scramble to avoid pre-Election Day shutdown,” Politico:

“Congressional Republicans return to Washington on Tuesday with a singular goal for September: avoid a government shutdown. But with President Donald Trump in the Oval Office, that’s easier said than done.”

Patricia Murphy, “Just When You Least Expect It — A Congress That (Sort of) Works,” Roll Call:

“And yet, while the country’s focus has been trained on Paul Manafort’s corruption trial or Omarosa’s secret White House tapes or what the president thinks about all of it, lawmakers have been making slow and steady progress toward their most basic, but often most difficult, job every year — funding the United States government.”

Melanie Zanona, “Renewed talk of reviving earmarks down the road,” The Hill:

“Some congressional Democrats are starting to push for consideration of reviving the practice of directing federal spending to pet projects if they are in power next year. Doing so could help them pass an infrastructure package and other major spending bills on the Democratic agenda.”

Mark Strand, “How to reinstate earmarks responsibly without political considerations,” The Hill:

“By not directing federal funds to their districts, members of Congress are shirking one of the primary responsibilities given to them by the Constitution – the power of the purse. Congress is a legislative body. It is also the branch of government closest to the people and therefore should be the most familiar with funding needs.”

Lindsey McPherson, “Why Republican Candidates Aren’t Getting Asked Who They’d Back for Speaker,” Roll Call:

“Of the many explanations for why Democrats are leaving the race to replace Ryan out of campaigns, name recognition seems to be the most common.”

Philip A. Wallach and James Wallner,"Richard Russell and the Importance of Remembering the Past," Law and Liberty:

"The Senate’s oldest office building was not named after the patrician senator from Georgia because of his position on civil rights. Rather, Russell’s colleagues believed unanimously that they should honor him because he honored the Senate. That is, he valued the institution’s stature and integrity higher than his party and the presidency for more than three decades."

Barbara A. Trish, “Congress isn’t paying its interns enough,” Washington Post:

“But this one is easy: Let’s put an end to unpaid Capitol Hill and political campaign positions, the entry-level jobs so perversely enticing to college graduates focused on public service. Congress will soon have an opportunity to make needed headway on this front.”

Katherine Tully-McManus, “House and Senate Interns Set to Receive Pay in Legislative Branch Spending Package,” Roll Call:

“The final version includes $8.8 million to pay interns in the House and $5 million for intern pay in the Senate. The Senate funding is included in the accounts that lawmakers use to pay staff salaries, official travel and office expenses. In the House the funds will exist in a newly created account for each member office, according to House Appropriations Committee staff.”

 

Unring the bell

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(Editor's note: This post is a follow up to yesterday's post and originally appeared in Legislative Procedure on September 5, 2018.)

By James Wallner

Yesterday’s post detailing how senators can bring back the judicial filibuster prompted a lot of responses. The most prominent critique was that the nuclear option cannot be reversed. In short, a bell once rung cannot be un-rung. But the Senate’s past practice illustrates clearly that the nuclear option can be reversed and that the filibuster can be preserved anew for a significant period of time.

Senate reversed the nuclear option in 1975

For example, a bipartisan coalition of senators led by Walter Mondale, D-Minn., and James B. Pearson, R-Kan., introduced a resolution (S. Res. 4) in 1975 that would have reduced the threshold to invoke cloture from two-thirds of the entire Senate to three-fifths of those senators present and voting. Reformers were optimistic that they could finally establish a precedent that a Senate majority change the institution’s Standing Rules in a manner that violated those rules. This is because a large number of pro-reform Democrats prevailed in the 1974 mid-term elections due to the Watergate crisis and the subsequent resignation of President Nixon. In addition, the Senate’s new Presiding Officer, Vice President Nelson Rockefeller, was a strong supporter of efforts to reform the filibuster.

On February 19, Senator Pearson made what was essentially a non-debatable motion to proceed to the consideration of S. Res. 4 in violation of the Senate’s rules. Pearson’s motion consisted of three separate parts. 

  1. It specified that the Senate begin consideration of the resolution. 
  2. It stipulated that the Senate vote immediately on the motion to proceed and that cloture be invoked if supported by a simple-majority.
  3. It required that the Senate vote on whether or not to proceed to S. Res. 4 immediately after cloture was invoked. 

Majority Leader Mike Mansfield, D-Mont., then raised a point of order that Pearson’s motion was out of order. After some debate, the Senate successfully voted on February 20 to table the Mansfield point of order fifty-one to forty-two, even though it was consistent with the Standing Rules. By voting to table the Mansfield point of order, members established a precedent that a Senate majority could change the rules at the beginning of a new Congress. In short, senators went nuclear.

James Allen, D-Ala., immediately retaliated by calling for a division of the three separate parts of Pearson’s motion. Allen then began a filibuster of the first question- that the Senate begin consideration of S. Res. 4. Because this part of the motion did not contain a constitutional question, Allen argued that the precedent just established did not apply. Using Pearson’s own logic against him, Allen asserted that forcing a vote on the first part of the motion did not touch on a constitutional question and instead would violate the Senate’s Standing Rules. While a majority had just supported efforts to establish majority cloture on constitutional questions on the first day of a new Congress, some of those members were unwilling to go even further and establish majority cloture for questions that did not raise constitutional issues. Allen’s maneuver illustrates the ability of members to define the question pending before the Senate in such a way as to make it more difficult for reformers to maintain a majority in support of their efforts. As a consequence, Allen’s maneuver prevented reformers from winning the day. The Senate eventually adjourned and the motion to proceed to S. Res. 4 was defeated.

Senators continued their efforts over the following weeks to force the Senate to begin consideration of the Mondale-Pearson resolution. The Senate considered a similar three-part motion to proceed made by Mondale on February 24. During the subsequent parliamentary maneuvering that ensued, senators grew increasingly frustrated with how Vice President Rockefeller was managing the floor. Harry Byrd Jr., I-Va., stated, “I want to protest the rapidity with which the chair is putting these questions and refusing to recognize some of us who have been seeking recognition.” 

Senators frustration with the Vice President reached a boiling point two days later when Vice President Rockefeller refused on several occasions to recognize Allen. Russell Long, D-La., rebuked the Vice President in response. “The Presiding Officer presides over the Senate…He does not own this body. I have never in my life seen it happen in the Senate that a man can be standing trying to seek recognition and not be recognized by the chair.” Long warned his colleagues, “You have one man cloture right now.” Other senators came to the floor to criticize the Vice President throughout the day. This eventually prompted Rockefeller to apologize to Allen for not recognizing him.

For seven weeks, opponents filibustered efforts to pass majority cloture. Their opposition also delayed consideration of other business. Minority Whip Robert Byrd, D-WV., expressed concern about the impact of these dilatory tactics on the majority’s ability to process other important legislative priorities. From January to mid-March, Byrd wanted to proceed with “other responsibilities, one of which is to get urgent legislation disposed of.” Yet he acknowledged that the Senate’s leadership was worried that members would exercise their ability to obstruct the majority’s agenda. “The leadership does not want this thing to develop in an all-out struggle as to who knows most about the rules and who can utilize the rules to the fullest extent. We can all play that game, and I hope we will not get into that business.”

Mounting frustration with the rules debate and the desire of senators to turn their focus to other legislative business precipitated negotiations between members on both sides of the conflict. A bipartisan compromise agreement was introduced on February 28 by Majority Leader Mansfield, Majority Whip Byrd, Minority Leader Hugh Scott, R-Pa., and Minority Whip Robert Griffin, R-Mich. Among its provisions, the agreement reduced the votes needed to invoke cloture to three-fifths of the entire Senate, instead of the three-fifths of those members actually present and voting as sought by the reformers. In another significant concession to Allen and his allies, the compromise also maintained the higher threshold of two-thirds of those senators present and voting to end debate on measures to change the Standing Rules. Finally, the agreement formally reversed the precedent established by the nuclear option just eight days earlier.

After fifty days of continuous debate on the issue, the Senate voted on March 7 to invoke cloture on the compromise agreement. Reflecting on the historic struggle, Allen emphasized the importance of minority retaliation in preventing a pro-reform majority from ultimately prevailing in the conflict. He observed, “If the idea is prevalent that members of the Senate will lie down, roll over and play dead to this type of action- unauthorized and not countenanced by the rules- then you can certainly look for that effort to be made.”

Senators are not victims of the past

Implicit in the argument that the nuclear option cannot be reversed is the assumption that the Senate’s rules were irrevocably changed in 2013 and 2017. The implication is that senators who do not like the status quo are innocent victims and should be excused for simply adhering to a practice established by a previous majority.

But senators aren’t victims. This is because the nuclear option established a precedent that is in explicit violation of the Senate’s Standing Rules (i.e. Rule XXII). This is problematic for members who profess to wanting to follow the Senate’s rules and claim that they do not support breaking those rules by creating new precedents that violate them (i.e. the nuclear option). It is also problematic for senators who oppose the outcomes made possible by the nuclear option- members like Amy Klobuchar, D-Minn.

The successful utilization of the nuclear option created a new precedent that is inconsistent with the Senate’s Standing Rules. The rules were not amended. Rather, they were simply ignored. The precedent established by the nuclear option in 2013 did not address a parliamentary situation in which the rules were silent. Instead, it specifically circumvented those rules. This point has significant implications. Rather than acquiescing to a new rules regime, the senators break the rules every time they support following the nuclear option precedents instead of the existing process required by Rule XXII for invoking cloture. Specifically, whenever the Presiding Officer determines that cloture was invoked by a simple-majority, the Senate essentially decides whether or not it would like to ignore the Standing Rules based on the preference of a simple-majority. 

In short, there is no one first act of breaking the rules that legitimizes all subsequent departures from the status quo ante. Rather, an explicit violation of the Senate’s Standing Rules occurs every time senators choose to adhere to the precedent established by the nuclear option instead of its Standing Rules.

That majorities go nuclear more frequently today than in the past, and that minorities do not challenge them in doing so, suggests that senators do not believe that the rules should be maintained in their present form.

James Wallner is a senior fellow of the R Street Institute and member of R Street’s Governance Project and Legislative Branch Capacity Working Group teams. 

How to make the Senate a nuclear-free zone

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(Editor's note: This post originally appeared in Legislative Procedure on September 4, 2018.)

By James Wallner

Amy Klobuchar, D-Minn., regrets going nuclear. Democrats used the controversial maneuver in 2013 to lower unilaterally the threshold for invoking cloture on most nominations from three-fifths of senators to a “majority-vote.” While the Democrats’ maneuver exempted Supreme Court nominees, their gambit made it easier for Republicans to justify going nuclear themselves in 2017 to eliminate the minority’s ability to filibuster SCOTUS nominations as well. Hence Klobuchar’s regret. The Senate Judiciary Committee, on which Klobuchar sits, begins its confirmation hearings for Brett Kavanaugh today. And Democrats have little ability to block his eventual confirmation thanks, in part, to Klobuchar’s decision to go nuclear five years ago.

Klobuchar also said that she would support reinstating the judicial filibuster next year if Democrats are in the majority after November’s elections.

Senators have four ways to bring back the judicial filibuster.

  1. Reverse the ruling of the Chair on an appeal that cloture can be invoked on a nomination by a simple-majority
  2. Sustain the ruling of the Chair that Rule XXII stipulates that cloture can only be invoked on a nomination by a three-fifths vote
  3. Pass a simple resolution as a standalone measure that reverses the precedents established by the nuclear option and restores Rule XXII
  4. Pass a simple resolution as a provision in a larger measure that reverses the precedents established by the nuclear option and restores Rule XXII

If structured correctly, each of the options above would have the effect of reversing the precedents established by the nuclear option in 2013 and 2017. Consequently, they would all bring Senate practice back into compliance with the institution’s Standing Rules.

James Wallner is a senior fellow of the R Street Institute and member of R Street’s Governance Project and Legislative Branch Capacity Working Group teams.