The eighth meeting of the Legislative Branch Capacity Working Group is on Wednesday, April 12, 2017 at 12pm in the Capitol Visitors Center. The subject to be discussed is, "Does Congress Have the Capacity It Needs In Foreign Affairs?"
Conservative Zach Wamp (R-TN, 1995-2011) writes:
"The ugliest truth is that our 'representatives' of the people spend as much as half their time raising money. Members of Congress owe the politically-affiliated party committees (the National Republican Senatorial and Congressional Campaign Committees and their counterparts, the Democratic Senatorial and Congressional Campaign Committees) hundreds of thousands of dollars in “dues” each month, raised to protect incumbents and consolidate party power.
"Their elections each cycle often cost $1.5 million or more in the House, and $10 million in the Senate, so lawmakers are constantly fundraising. If you chair a committee or serve in leadership, you’re building an even larger war chest.
"For example, while I was writing this piece, I received a call from a sitting lawmaker, asking for a donation toward the $325,000 dollars he’s obligated to pay the NRCC every year. When I told him I was writing about that very issue and working to end the pressure to raise ridiculous sums of money — a fiscal 'arms race' — he told me he hoped I was successful because he’s tired of it. Case in point!"
Kathryn Schulz of the New Yorker writes:
"Americans vote, if we vote at all, roughly once every two years. But even in a slow season, when no one is resorting to faxes or protests or pizza-grams, we participate in the political life of our nation vastly more often by reaching out to our members of Congress. When we do so, however, we almost never get to speak to them directly. Instead, we wind up dealing with one of the thousands of people, many of them too young to rent a car, who collectively constitute the customer-service workforce of democracy.... According to Bradford Fitch, the President of the Congressional Management Foundation (C.M.F.), a nonpartisan nonprofit group that works to improve the efficacy of interactions between citizens and lawmakers, constituent communications account for twenty to thirty per cent of the budget for every congressional office on Capitol Hill...."
Professors Hong Min Park, Steven S. Smith and Ryan J. Vander Wielen recently presented a monograph, “The Changing Politics of Conciliation: How Institutional Reforms and Partisanship Have Killed the Conference Committee,” detailing the “near evaporation” of conference committees in House-Senate conciliation processes. Given the constitutional necessity of conciliation and its significant impact on policy outcomes, this paper is crucial to understanding recent congressional dysfunction.
The Constitution’s Bicameralism and Presentment Clauses require both houses of Congress to pass identical versions of legislative bills. The Constitution is silent, however, about how Congress is to go about reconciling differences that exist when the chambers pass different versions of a bill. This process, known as conciliation, can be accomplished several ways. For example, one chamber can simply approve a bill that was initially passed by the other chamber, or the chambers can continue to exchange amendments back and forth until both finally pass an identical bill (a process known as “ping-ponging”).
But traditionally—at least for more complex pieces of legislation where the potential differences between the chamber versions of a bill are numerous—Congress has used conference committees made up of delegates from each chamber to hammer out any differences. A conference report is then agreed upon and returned to the chambers to be passed on a simple up-or-down vote. This longstanding conference process, as the monograph’s authors lay out in detail, is now broken. Fewer and fewer conference committees are convened to resolve differences between the houses of Congress, and the authors set out to study why this decline has occurred, as well as its ramifications for future policymaking.
Essentially, the monograph has four components:
- A description of conciliation when conference committees predominated, prior to the 1970s;
- The waves of change since the 1970s that caused the decline in conference committees;
- Current methods of inter-chamber conciliation;
- The effects these changes have had on policy outcomes.
The traditional use of conference committees pre-1970
The practice of using conference committees traces its roots to English parliamentary practice as early as the 14th century. The use of conference committees hopped the Atlantic and found a home in numerous colonial legislatures and our country’s first congress. The practice continued well into the mid-20th century when the conciliation process was still dominated by conference committees.
As has recently been shown by Professors Jeffrey A. Jenkins and Charles Stewart III, this time period featured a decentralized system of independent and influential committees managing Congress. Conciliation was conducted by House and Senate delegations and controlled by relevant committee chairmen (chosen by seniority), who produced a “conference report” for full chamber votes, with little party influence. Starting in the 1970s, however, this state of affairs began to fall apart.
The decline of conference committees: two waves of institutional change
Changes in conciliation since the 1970s occurred amidst rapidly increasing polarization, which led to greater differences in potential policy outcomes and more intense party competition. This, in turn, rendered congressional control increasingly uncertain. As a result, party leaders became more attuned to—and involved in—the process by which legislative differences between chambers would be resolved. A series of changes that sought to de-emphasize and reduce the power of congressional committees had the effect of reducing the role of conference committees.
As the authors note, the conciliation process was fundamentally altered by two waves of institutional change. The first, initiated by Democrats in the 1970s, came about as a result of the effort to “bring committees and conferences in line with the preferences of most majority party Democrats by expanding conference delegations.” Specifically, because of longstanding seniority rules, conservative Southern Democrats at the time disproportionately dominated committee chairmanships, allowing them to water down or stymie the civil rights agenda of the more activist wing of the Democratic Party. Seeking to reduce this power, the Democrat-controlled legislature at the time passed a series of measures that eliminated the seniority monopoly on chairmanships, asserted greater party control over committees and conferences, and gave rank-and-file members increased oversight over conference committee reports.
The second wave, “initiated by House Republicans after the 1994 elections, was about partisan efficiency and control.” This wave centralized power in party leadership rather than committees, cut member and committee staff (while increasing leadership staff), and increased the Senate majority leader’s power over the amendment process. Among other effects, these changes increased party leadership’s influence and control over the conciliation and conference process since conferees were increasingly expected to “toe the party line”. This more rigidly hierarchal structure eventually decreased the use of conference committees altogether in favor of other methods of conciliation.
Current preferred methods of conciliation
The result of the aforementioned institutional changes in committee power had direct ramifications for the conciliation process. Rather than delegating conciliation to conference committees, which risks surrendering party objectives, party leadership has wrested control over the conciliation process from conference committees. Instead of conference committees, party leadership often chooses to engage in high-level, closed-door negotiations to resolve in inter-chamber differences. This ad hoc, secretive process has only gained in popularity in recent years.
Because of their obvious partisan implications, fiscal issues were the first to be consumed by party leadership, but in more recent times party leadership takes the lead in conciliations involving even supposedly nonpartisan issues like defense authorization and farm bills. As the authors point out, the apotheosis of this trend away from conference committees to more ad hoc methods for resolving differences between House and Senate versions of bills was seen in the initial passage of the Affordable Care Act. In order to both avoid a Republican filibuster and to reconcile the differences between the House and Senate versions of the bill, Democratic leadership used a series of complex legislative maneuvers to gain passage.
Perhaps unsurprisingly, the move toward greater party control of conciliation has been bipartisan: “[B]y the time the Republicans had assumed majorities in both chambers following the 2014 elections, the parties had taken over post-passage action from committees on most major legislation,” according to the authors.
How changes in conciliation have affected policy outcomes
These changes to conciliation procedure have affected policy outcomes in numerous, important ways. First, because conference committees have at least some minority input, they typically result in outcomes that are closer to the median congressman than the more overtly partisan outcomes of leadership negotiation. Thus, the move toward leadership-dominated conciliation has in turn led to more sharply partisan legislation.
Second, these changes shifted “primary responsibility [for conciliation] from legislators with policy expertise to legislators with political expertise,” which can work to reduce general policy expertise among members of Congress. By and large, party leadership is predominately focused on electoral outcomes rather than on the minutiae of particular policy issues. This can eventually create perverse incentives for rank-and-file legislators, as over time “the focus on party-based policy making and a lack of reliance on committees to write legislation may reduce the incentive for legislators to develop genuine policy expertise.”
Finally, these trends have implications for legislative transparency, as well. In contrast to the traditional conference committee process—which was public and included joint explanatory statements detailing the key results of the conference negotiations—party leadership now mostly relies on ad hoc closed-door bargaining sessions to reconcile differences in legislation. This reduces transparency and provides the public with less insight and guidance regarding agreed-upon compromises.
In their extensive monograph, professors Park, Smith, and Vander Wielen provide important context and history concerning the evolution (and decline) of conference committees. Their analysis is a welcome addition in the effort to understand current congressional dysfunction and its potential impact on policymaking.
Adam Chan is a former Institute of Politics summer research assistant at the R Street Institute. C. Jarrett Dieterle is a governance fellow at the R Street Institute.
Phillip Lohaus, Daniel Schuman and Mandy Smithberger report:
Today [March 8, 2017] the Committee on House Administration took a small but important step to restore the House of Representatives as an effective legislative and oversight body. It voted unanimously to increase funding for each permanent committee — with four committees receiving a double-digit percentage increase.
The legislative branch is appropriated 1% of the federal budget to oversee the entire federal government, with much of that going towards non-legislative functions like security and facilities. Congress is woefully underfunded to perform its legislative, oversight, and representational duties, and that has undermined its ability to serve as a check on the executive branch.
On the R Street Institute Blog, Kevin Boyd writes:
“We’re not considering any boots-on-the-ground approach,” then-President Barack Obama said during an Aug. 30, 2013 news conference about the situation in Syria. The former president would repeat his promise not to deploy “boots on the ground” over the next few years. But by 2016, U.S. ground forces were operating in Syria as part of the war against Islamic State.
"President Donald Trump now plans to expand the war against ISIS. U.S. Marines have deployed alongside Syrian rebels as they plan an assault on the ISIS capital of Raqqa and expect to provide artillery support for the upcoming offensive. Before U.S. Marines engage in ground combat against the enemy, it’s time for a debate about the mission against ISIS. When Obama first ordered U.S. military action against ISIS in the summer of 2014, he did so without congressional approval.
"The U.S. Constitution gives Congress alone the power to declare war, although the reality has always been more complicated than that...."
At the Library of Law & Liberty, Kevin R. Kosar writes:
"Indubitably, our nation’s finances are a mess. America has run deficits 36 of the past 40 years. The national debt is $18 trillion, and it has tripled as a percentage of GDP since 1974.
"Each February, the President rolls out his budget—a collection of tomes loaded with tables and text attempting to explain the government’s $3.7 trillion in spending. And where does this money go? Mostly to fund long-existing federal agencies and programs.
"The public, already horrified by the rising waters of red ink, are further enraged by Congress’ ineptitude. Both chambers have adopted a budget resolution on time only six times since 1977. Congress blows its own April 15 deadline by an average of nearly 40 days. Congress virtually never passes the 12 appropriations bills before the end of the fiscal year (September 30), and often fails to votes on a single one. Instead, the leaders avert a government shutdown at the last minute by rushing through omnibus spending bills and continuing resolutions whose contents are unknown to most legislators.
"In December, I saw up close just how estranged Congress has become from the power of the purse. I was one of four witnesses before a subcommittee of the Oversight and Government Reform Committee of the House of Representatives. The hearing’s topic was the money collected by executive agencies in the form of fees, fines, and settlements. It is a whopping sum: $516 billion per year, an amount equal to about one-seventh of the federal budget.
"One representative asked us: How much of this money are executive agencies spending without congressional direction? I did not know, despite having spent almost 15 years on Capitol Hill. Nor did the expert from the watchdog Government Accountability Office. Another colleague on our panel ventured that the spending data likely could be found in an office within the U.S. Treasury. Congress could request it, but it was otherwise unavailable.
"The subcommittee members present (the modest number who had shown up at the hearing) were gobsmacked by this response. Congress is supposed to have power of the purse! As Article I of the Constitution says, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.”
"Clearly that’s not how it works. How did we get here?"
by Rob Oldham
Don’t sound the alarm just yet, but it looks like the Republican Party’s policy agenda might be in trouble. Without a 60-member Senate majority to beat a filibuster, Republicans are limited in what policy areas they can address without bipartisan support. As I explained in this article, Republicans should be able to tackle tax reform and a “repeal and replace” of the Affordable Care Act through a process known as budget reconciliation, which Democrats would not be able to filibuster. However, if all 52 Senate Republicans cannot stick together, the upper chamber disagrees with the House, or President Trump rejects conservative orthodoxy in favor of a more populist approach, then the GOP could see its first chance at unified government in a decade squandered.
Again, the GOP should not panic yet. The Trump administration is less than two months old. It appears that Senate Majority Leader Mitch McConnell largely held his party’s rank and file together on some of the more controversial cabinet nominees, such as Secretary of Education Betsy DeVos, OMB Director Mick Mulvaney, and EPA Administrator Scott Pruitt. But in the aftermath of House Speaker Paul Ryan’s Valentine’s Day meeting with Senate Republicans, it became apparent that there is not a party consensus on tax reform or an overhaul of the Affordable Care Act.
On tax reform, Ryan has tried to put forward a border adjustment plan that tries to enact both an import tariff (to appease President Trump and the #MAGA crowd) and bring in enough revenue to pay for cuts to corporate and personal income taxes (to appease the limited government conservatives). Sen. Tom Cotton (R-AR) quickly denounced the Ryan plan, as did Finance Committee Chairman Orin Hatch (R-UT) and Senate Republican Conference Vice Chairman Roy Blunt (R-MO). (I will leave it to people much smarter than me to explain the particulars of the plan.)
Ryan’s attempt to address healthcare reform was equally disastrous, with Sen. Rand Paul (R-KY) leaving in a fume before the meeting with his colleagues and the House speaker was even over. Paul has aligned himself with the House Freedom Caucus, which is lining up to oppose any repeal-and-replace plan that does not cut back on Medicaid expansion. Twenty Republican senators come from states that chose to expand Medicaid, and there are many influential voices in the party—including five Republican governors—urging caution when it comes to messing with peoples’ healthcare coverage. Trump has sent mixed signals thus far on how the repeal-and-replace process should be handled, although he might be able to put things together now that Tom Price has been confirmed as Health and Human Service Secretary.
If Republicans continue to have trouble reaching consensus, expect their party base to become a little angry. After all, the GOP has campaigned on ACA repeal and tax reform for the past eight years. What’s more, the party portrayed President Obama and the Democratic administration as the final obstacle to enacting these policies. That was certainly the message the GOP intended to convey when it sent an ACA repeal bill to Obama’s desk in 2015. During the 2016 presidential election, Ryan said he was tired of divided government; the basis of his support for Donald Trump was that he wanted someone in the Oval Office who would sign Republican legislation into law.
The theory behind Ryan’s claim that unified government would help Republican policies become law has been supported by scholars since the beginning of the 20th Century. This includes Woodrow Wilson, who said that “you cannot compound a successful government out of antagonisms.” Wilson was one of the first presidents to view himself as the leader of his party, similar to a prime minister in a parliamentary system, and he used his influence to push his New Freedom domestic agenda through a Democratic Congress. Some scholars have agreed that Wilson’s emphasis on party government is what brings about important policy change, particularly because unified government centralizes the American constitutional system, one of the few in the world that allows the legislature and the executive to be controlled by opposing parties. In theory, unified government should allow for presidential leadership to corral partisans behind a cohesive ideological agenda that can be enacted over the objections of the minority.
However, this paradigm was challenged in the early 1990s with the publication of David Mayhew’s Divided We Govern. Mayhew analyzed major legislation enacted between 1946 and 1990, and found that there wasn’t much of a difference between periods of unified government and periods of divided government. He found the public mood and the timing of the legislation—most importantly if the legislation was proposed during the first two years of a presidential term—more accurate than the presence of unified government in predicting whether Congress was passing major bills.
Mayhew’s findings were surprising. Several explanations were put forward, including one that stated major policies were pursued during eras of divided government because it would lead to both parties being accountable for the effects. (This was particularly important if the policy was unpopular, such as raising taxes.) Another explanation was that divided government fostered the deliberation and compromise necessary for major policy reforms. One could see both explanations being instructive in the Trump era, particularly if conservative Republicans try to rush toward enacting proposals like an ACA repeal that more cautious or centrist Republicans think might be harmful down the road.
Later scholars gathered evidence to support Mayhew’s conclusions, including Keith Krehbiel, who thought that the ideologically ideal points of pivotal legislators, particularly the senator who could cast the 60th vote to defeat a filibuster, would be the most important factor in determining the success or failure of major policy proposals. Because the ideology of the pivotal legislator might diverge from the members of the majority party, Krehbiel thought that only radical shifts in public mood would lead to the supermajoritarian support necessary for policy change, regardless of whether government was unified or divided.
But while the arguments from Mayhew and Krehbiel are persuasive, there are still plenty of scholars who favor the Wilsonian view of unified partisan governments being the most effective vessel for policy change. For example, Sean Kelly took issue with how Mayhew defined “major legislation.” Kelly found that government policies which were salient at the time they were passed and had a substantive policy impact for years afterwards were more likely to have been passed by unified governments. His idea was that unified governments passed stronger and more ideologically cohesive bills than divided governments, suggesting that Mayhew did not properly account for the quality of a major piece of legislation. The timeframe of when Mayhew examined legislation can also be questioned, as the two major parties are now more polarized and ideologically cohesive than they were throughout most of the 20th century. With the loss of conservative Southern Democrats, it is less likely that bipartisan coalitions will form during divided government, leaving most of the work to unified governments.
There will be plenty of time to examine the unified Republican government during the Trump years and see if it improves upon the scant policy accomplishments of Congress during the six years of divided government under Obama. This will be especially interesting if the Senate Republicans do away with the filibuster for legislation and can pass bills with 50 votes (not including Vice President Pence as the 51st). It is likely that because of the ideological fractures between the Trump administration and congressional Republicans, as well as the divisions among congressional Republicans, policy-making will be just as difficult as it was under Obama. Right now, though, Congress is doing as well under Trump as it has done with any new president since Jimmy Carter in terms of early legislative productivity: all of three bills, that is. So perhaps we should not be too quick to judge.
It is a well-known tenet of democracy that citizens must have access to information about the government’s activities, as well as the means by which to interact with the government to spur policy changes. Unfortunately, the increasing size and complexity of modern government has made it ever-more difficult for the public to be aware of—and engage with—policymaking that emanates from the federal government.
As part of a recent series of papers compiled by the Congressional Research Service, Clinton T. Brass and Wendy Ginsburg focus on how Congress has evolved over time to promote the principles of transparency and “stakeholder engagement” via legislative reforms.
In particular, they discuss how Congress has passed numerous laws over the years that “embed values of transparency, participation, and representation into agency activities.” These laws help ensure that the public is aware of important laws and regulations, and give non-government stakeholders the ability to participate in the policymaking process.
The authors start by discussing the Budget and Accounting Act (1921) and the Federal Register Act (1935), two early efforts to increase government transparency. The budget act created a more formal budget process, mandated executive branch reporting requirements, and established the watchdog General Accounting Office, which eventually became the Government Accountability Office.
The Federal Register Act paved the way for Code of Federal Regulations, the government periodical in which government rules are memorialized and recorded. The Code’s genesis is especially interesting as it arose in response to an embarrassing Supreme Court incident during the New Deal era in which the government had to admit to the Court that it was seeking to enforce a law that didn’t exist (since an improper version of the regulation had been submitted to the printer).
Each of these early laws served a dual purpose: they gave citizens and stakeholders the ability to track the activities of federal agencies, while also giving Congress an enhanced ability to oversee agency activities and hold agencies accountable. In other words, they equipped those who were outside federal agencies with greater information about executive branch activity.
Perhaps the most significant effort Congress made to standardize and democratize the rulemaking process of agencies was the Administrative Procedure Act, passed in 1946. As the authors recap, the point of the APA was to: (1) require agencies to keep the public informed and up-to-date on agency activities; (2) provide for public participation in the rulemaking process; (3) prescribe uniform standards for rulemaking and adjudicatory proceedings; and (4) restate the standards for judicially reviewing agency actions.
The APA gave outside stakeholders the tools they needed to inform themselves about government policies and allowed them to communicate directly with the government about those policies. Promoting this type of “stakeholder engagement” was also the rationale behind other congressional legislation which sought to increase transparency and public participation in agency activities, including laws like the Freedom of Information Act, the Federal Advisory Committee Act, and the Government in the Sunshine Act.
In more modern times, Congress has taken advantage of new technologies like the Internet to promote these goals. For example, the Government Performance and Results Act of 1993 required agencies to articulate mission statements and create multiyear strategic plans and retrospective annual reports. The GPRA Modernization Act of 2010, which updated the 1993 Act, required OMB to create a public website that contains metrics and information on agency performance.
Although these legislative reforms were well-intended and broadly effective, the authors also note increased transparency and stakeholder engagement come with costs. The advent of new technologies for disseminating information, coupled with increased opportunities for public involvement in rulemaking, has left Congress swamped with information and stakeholder demands. This overload is particularly concerning given Congress’ recent habit of cutting legislative branch staff and resources. The authors also point out that diverting resources within an agency toward promoting greater transparency can undermine other important agency priorities.
In a similar vein, increased transparency and stakeholder engagement could alter how information is used and controlled. The authors use the Obama administration’s Open Government Directive, which required federal agencies to release certain datasets to the public, as an example. While the release of datasets can improve data quality through tools like “crowdsourcing,” it can lead to outside groups (intentionally or unintentionally) manipulating datasets and/or presenting skewed interpretations of data. It can also once again add to information overload that actually makes it more difficult for the public and Congress to get a clear picture of agency policymaking.
As the authors put it, Congress has made much progress over time in enhancing transparency and stakeholder engagement “in a way that increases the intensity with which agencies interact with non-Federal stakeholders.” This trend has been accelerated by changes in technology and has helped address the information asymmetries between federal agencies and outsiders.
But Congress also needs to look long and hard at itself, and consider ways to adapt to this new context where the executive branch is immense, information is plentiful, and pluralist demands are intense.
Jarrett Dieterle is a governance fellow at the R Street Institute.
Jarrett Dieterle (R Street Institute), Philip Wallach (Brookings Institution) and Kevin Kosar (R Street Institute) ponder and debate the role of Congress in regulation.
This video carries the presentations given at the February 23, 2017 gathering of the Legislative Branch Capacity Working Group. (The video concludes before the start of the question and answer session with attendees.)
Article relevant to the discussion include:
Jarrett Dieterle, "Republicans could have a regulatory ‘game changer’ on their hands," Weekly Standard.
Philip Wallach and Kevin R. Kosar, "The Case for a Congressional Regulation Office," National Affairs.
Kevin Kosar, "Reasserting Congress in Regulatory Policy," in Policy Reforms for an Accountable Administrative State.
From the Library of Law & Liberty:
Each February, the President rolls out his budget—a collection of tomes loaded with tables and text attempting to explain the government’s $3.7 trillion in spending. And where does this money go? Mostly to fund long-existing federal agencies and programs.
The public, already horrified by the rising waters of red ink, are further enraged by Congress’ ineptitude. Both chambers have adopted a budget resolution on time only six times since 1977. Congress blows its own April 15 deadline by an average of nearly 40 days. Congress virtually never passes the 12 appropriations bills before the end of the fiscal year (September 30), and often fails to vote on a single one. Instead, the leaders avert a government shutdown at the last minute by rushing through omnibus spending bills and continuing resolutions whose contents are unknown to most legislators.
In December, I saw up close just how estranged Congress has become from the power of the purse. I was one of four witnesses before a subcommittee of the Oversight and Government Reform Committee of the House of Representatives. The hearing’s topic was the money collected by executive agencies in the form of fees, fines, and settlements. It is a whopping sum: $516 billion per year, an amount equal to about one-seventh of the federal budget.
One representative asked us: How much of this money are executive agencies spending without congressional direction? I did not know, despite having spent almost 15 years on Capitol Hill. Nor did the expert from the watchdog Government Accountability Office. Another colleague on our panel ventured that the spending data likely could be found in an office within the U.S. Treasury. Congress could request it, but it was otherwise unavailable.
The subcommittee members present (the modest number who had shown up at the hearing) were gobsmacked by this response. Congress is supposed to have power of the purse! As Article I of the Constitution says, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.”
Clearly that’s not how it works. How did we get here?
At Vox, Lee Drutman writes:
"Over the past day or so, House Democrats, journalists, and a handful of very conservative Republicans been fulminating over the secretive ways House Republican leaders have been drafting their Obamacare repeal bill: behind closed doors, where nobody can see it, with plans to rush it quickly to a floor vote that will put pressure on Republicans to vote for a bill that will be aggressively marketed as “repeal.”
"While the optics might look bad — especially since just a few days earlier, House Speaker Paul Ryan explicitly said on NBC’s Today show that “we’re not hatching some bill in a backroom and plopping it on the American people’s front door” — this is actually nothing particularly new or shocking. It’s more or less how House leaders have been doing business for years. And they’ve been doing it for a reason: It’s by far the most effective way to get a bill passed.
"And it’s really Ryan’s only option. The longer he waits, the more likely it is that fellow Republicans get cold feet on a repeal, as they hear from more and more constituents and various interests that didn’t get the influence they wanted in the early drafting stages. And the more likely somebody in the Trump administration might actually come up with their own plan, ceding agenda control away from Ryan.
"But Ryan might not just be on borrowed time in trying to get his repeal through. He might be on borrowed time in being able to exert centralized, top-down leadership at all...."
"With the election sweep, there’s plenty of talk among Republicans about now being able to get things done. But there is also rising concern among observers of Congress that lawmakers are interacting less and less across the aisle. That has been a growing problem for many years, with members literally not knowing each other and distrust becoming deeper. In most aspects of public life, a basic failure to communicate invariably leads to bad outcomes and is corrosive to a functioning democracy.
"Even the currently ascendant Republicans have cause for concern about the erosion of contact and trust. First, getting much of their agenda through the Senate will require 60 votes, which will be difficult to do if there’s essentially a border wall between the two parties (not to mention only 52 Republicans in the Senate). Even legislative successes can be subject to continuous obstruction and repeal efforts in sensitive areas, such as health care, if the majority party fails to attract a reasonable number of minority votes. President Obama learned this lesson with the passage of the Affordable Care Act (or Obamacare), which triggered implacable opposition from Republicans. That experience should be a lesson now, causing Republicans to hesitate in seeking to ram through “repeal and replace” solely with their own votes.
"Of course, it would be naïve to expect Republican and Democratic leaders to embrace before TV cameras anytime soon. On the other hand, political scientist Frances Lee observes there is actually more bipartisanship in Congress than most people realize (measured by minority support for bills that become law), particularly when party leaders take a lead. Corresponding research from political scientists Craig Volden and Alan Wiseman recently found that members of Congress (even those with strong ideological leanings) who pursue bipartisan strategies are more effective legislators than those who have a more partisan voting record. Past scholarship has found that establishing reputation for such effectiveness increases the probability of reelection for incumbents.
"But how is it possible to achieve such bipartisan successes when Congress is so ideologically partisan? The more traditional view of deal making...."
Tevi Troy wrote in National Affairs:
"In May 2007, when I was nominated by President George W. Bush to serve as deputy secretary of Health and Human Services, a White House colleague came into my office with sobering counsel. On average, he said, it takes almost nine months for a nominee to an executive-branch position to get a vote in the Senate. Just when — and whether — the nominee gets that vote depends a great deal on the Senate's vacation schedule. The likelihood of confirmation, he explained, increases markedly just before one of the various congressional recesses (such as those for Memorial Day and Independence Day, or the August break). At any other time, a nominee's chances of being confirmed for any non-secretarial post are essentially nil.
"In the end, I was lucky: I was confirmed right before the 2007 August recess. Some of my colleagues, however, did not make it in at that point; they were never confirmed. Nor were they ever formally rejected, for that matter. As President Bush's second term wound down, the Democratic Senate began running out the clock on pending nominees and slowed the process even more than usual.
"This pattern was hardly unique to the Bush administration. Rather, it has been the normal course of the confirmation process for decades. It would be one thing if this dynamic applied only to judicial confirmations, and especially to those to the Supreme Court: After all, presidents should expect less deference from Congress when the two elected branches jointly fill the ranks of the third co-equal branch of government, granting lifetime appointments to judges. But when staffing an administration — making hiring decisions to fill departments and agencies very clearly under the authority of the executive — the president should have a right to expect significant deference, and, at the very least, swift up-or-down decisions on his nominees.
"Thus the sorry state of the process of confirming executive-branch nominees cries out for reform. Today, the way in which the highest levels of our government are staffed is a story of deferral and delay, of key posts left empty for years, and of an assault on both presidential effectiveness and orderly government. Consider that, as of the end of 2010 — nearly two years after President Obama's inauguration — 22% of the more than 500 Senate-confirmed positions in his administration were either vacant or temporarily filled by acting officials, according to the Washington Post...."
From Law & Liberty:
Christopher DeMuth had an interesting take on the election and its impact on our national institutions. In an essay for the Wall Street Journal, he wrote of the present inability of the political branches of government to function in a manner compatible with a national public good. Analyzing that failure, he pointed to what he believes is “a central purpose of the American scheme of checks and balances,” namely:
to draw out the distinctive strengths of the two political branches, executive and the legislature, while containing their distinctive weaknesses. The scheme has not been working well of late. The consequences are unbridled executive growth into every cranny of commerce and society, and a bystander Congress. We have lapsed into autopilot government, rife with corruption and seemingly immune to incremental electoral correction.
These pathologies were “a significant cause of the Trumpian political earthquake.” Nonetheless, DeMuth insists that Trump’s victory and the Republicans’ sweep in November “set the stage for a constitutional revival.” Unlike many observers, he is optimistic about the possibility that this election can reanimate the proper working of the separation of powers.
DeMuth pins his hopes on Congress as the branch of government that is likely to reestablish its institutional and constitutional purpose. Its current political malady is that its members have more and more
acted out of loyalty to party rather than to Congress as an independent constitutional branch. They support or obstruct administration initiatives along partisan lines, and when in support they receive fundraising and bureaucratic favors from the president in return.
Thus has “our scheme of separated powers” been “supplanted by party solidarity between presidents and their congressional co-partisans.”
In other words, the institutions are held hostage by a partisanship that has undermined the separation of powers. DeMuth argues that now, however, we may see a revival of the original understanding of the separation of powers. Congress “is bound to recover and assert many of its long-neglected legislative prerogatives.”
The new President and Congress are “poised to revive constitutional practices in their own branches,” one of them being “results-oriented policy making—so-called transactional politics—an approximation of what the Founders meant by ‘deliberation.’” Another, checks and balances, is “vigorous policy competition between the executive branch and Congress.” Both have “fallen into disuse in what had seemed, until now, to be a continuing downward spiral of dysfunctional government.”
I hope DeMuth is right, and the separation of powers can once again become the primary defender of constitutional government. But, it will not be easy to accomplish.
No doubt Democrats and Republicans alike will defend the partisan interests of their offices as they have come to be understood and incorporated into the Washington establishment. But, the question remains, what establishes the ground of partisanship in Washington? Are those political offices still understood in terms of their institutional purpose? Does the Constitution impose any limits on the powers of either Congress or the presidency, or is partisanship in Washington now understood on a ground established by the modern administrative state?
By Kevin R. Kosar
"Seeking to avoid a full House vote on the so-called “resolution of inquiry” — a roll call that would be particularly embarrassing and divisive for the right — Republicans will send proposal by Rep. Jerry Nadler (D-N.Y.) to the House Judiciary Committee for a panel vote on Tuesday, two Democratic sources said. The GOP-controlled committee is expected to kill the resolution. Without committee action, obscure parliamentary procedures would allow Democrats to call the resolution to the floor for a vote by the full House. But rejection by the Judiciary panel all but assures the measure will never see a floor vote."
As the Congressional Research Service explains in a primer on the subject:
"The resolution of inquiry is a simple House resolution that seeks factual information from the executive branch. Such resolutions are given privileged status under House rules and may be considered at any time after being properly reported or discharged from committee. Such resolutions apply only to requests for facts—not opinions—within an Administration’s control."
The resolution of inquiry is a powerful tool, but one whose use waxes and wanes. In a separate report, CRS notes:
"Between 1947 and 2011, 290 resolutions of inquiry were introduced in the House of Representatives. Two periods in particular, 1971-1975 and 2003-2006, saw the highest levels of activity on resolutions of inquiry during [1947-2011]. Although nearly every standing House committee has been referred at least one resolution of inquiry during the post-World War II period, the Committees on Armed Services, Foreign Affairs, and the Judiciary have received the largest share of references because the most commonly sought information has related to defense, foreign relations, and intelligence. Most resolutions of inquiry are directed to the President himself, but other executive branch officials have been the subject of such information requests as well."
Lee Drutman writes:
"[O]ver the years, and particularly over the past few decades, Congress has ceded more and power to the executive. Admittedly, it has done some of this willingly. After all, better to delegate away hard decisions to the bureaucracy, which you can always then blame if something goes wrong, But willingly or unwillingly, the effect is the same. More and more policy has been made in the executive branch. And more and more power (especially in national security) has gone unchallenged.
"At the most basic level, it’s a numbers game. The executive branch has tens of thousands of people making policy, across multiple agencies. Congress has fewer and fewer. Below, take a look at staffing levels of members’ offices in Washington. Over the past several decades, members of Congress have employed fewer and fewer people in Washington, where policy is made. Some of this decline is a result of shifting staff to district offices; some of it is a result of flat or declining budgets. But the result is the same. Members have fewer policy staff to help them."
Political scientists Alexander Bolton and Sharece Thrower offer an interesting, if not surprising, take on the use of executive orders by presidents since 1905. In short, congressional capacity affects presidential action.
The authors lay out their case in a July 2016 American Journal of Political Science article, “Legislative Capacity and Executive Unilateralism.” Given the head-spinning pace of executive actions issued in the first two weeks of the Trump administration, this historical look at presidential action is particularly topical. Their findings should buck up those who fear that the modern presidency is too big to check.
The authors begin by pointing out the normative concern and media narrative that recent presidents have resorted to unilateral actions – that is, executive orders – to bypass Congress, particularly under divided government, isn’t supported by the numbers. In fact, scholars have consistently churned out findings that modern presidents issue fewer executive orders in times of divided government. This might feel a bit counterintuitive given that we expect a president to take advantage of his unilateral action powers exactly when he doesn’t trust a Congress to pass the policies he desires.
To square the circle, it’s important to outline the incentives a president faces when deciding whether or not to act unilaterally. In times of unified government, the president is given greater discretion to issue executive orders simply because he has a Congress that is likely to agree with him. Put simply, he is not likely to face congressional challenges to his orders because of policy agreement between the two branches. Conversely, when a president faces a Congress controlled by the opposite party, he is less likely to receive consent from Congress due to the majority of legislators opposing the policy direction outlined in the executive directives. Thus, in order to avoid a potentially costly and public battle, the president will refrain from issuing executive orders to which a hostile Congress is surely going to loudly object.
Bolton and Thrower don’t argue this established logic, but posit the theory offers an incomplete look at the contexts that foster executive action. Specifically, they argue that an overlooked factor in presidential discretion is the capacity of Congress to limit the actions taken by the executive. Congressional capacity refers to the resources available to Congress to execute its functions, namely the number of staff and independent information sources members can use to assist to author legislation, conduct investigations and oversight, and compile information crucial to countering presidential proposals.
The levels of congressional capacity have not been constant throughout history. In the first half of the 1900s, Congress became frustrated with their lack of independent policy information relative to the president and began to take action. In 1946, Congress passed the Legislative Reorganization Act which aided in staffing committees with policy experts of their own. Also during this period, Congress created the Congress-specific information centers such as the Government Accountability Office and the Legislative Reference Service (now the Congressional Research Service), as well as passed legislation that required the formal notice and publication of executive actions and rules. Prior to these acts, Congress was not privy to the actions of the president until after they had taken place, ultimately thwarting their ability to oversee and constrain the executive due to a significant lack of information. As a result of these efforts, Congress transformed from a low capacity institution to a high capacity institution in the mid-1940s.
This variation in capacity leads the authors convincingly contend that prior to Congress increasing their own capacity, the president was far more likely to issue executive orders under conditions of divided government than modern day executives. During the period of low congressional capacity from 1905-1944 presidents attempted to accomplish their legislative aims via executive actions because they knew Congress faced “high costs to writing statutes that limit the executive.” Identifying the lack of resources available to Congress, the president took advantage of his unilateral powers during periods of divided government to take advantage of a Congress limited in its ability to contest the actions. Once congressional capacity was amplified, the president recognized that under divided government his discretion was checked due to the ability of Congress to use its increased resources to constrain him. The authors explain during the period of high congressional capacity “it is less costly for Congress to write constraining legislation” because of their increased available resources.
The numbers back up the theory. In the period of low congressional capacity (1905-1944) their analysis finds “that divided government significantly increases executive orders. More specifically a shift from unified to divided government...is associated with a 55% increase in the number of executive orders issued in a given year.” This finding gives strong support to their theory that the president purposefully bypassed a hostile Congress by issuing executive orders during the period where Congress had limited resources to check the actions of the executive. Once Congress strengthened its ability to combat the executive by increasing its own capacity, the use of executive orders under divided government sharply decreased. Instead of the 55% increase found in the early 1900s, “between 1945 and 2013, a shift from unified to divided government is associated with a 10% decrease in the number of executive orders” issued.
This study and its findings are important for at least a few reasons. First, the piece reveals that “policy making is not solely dependent on the ideological relationships and conflicts between political actors. Instead, this relationship is conditional on the capacity of these actors to check one another.” In other words, if one actor doesn’t have the ability or resources to limit another policy actor, it doesn’t matter how wide the ideological gap may be; the stronger party will win out.
Second, the article speaks to a concern that we live in an era where presidents can and do legislate through executive action rather than working with Congress, particularly during times of divided government. By showing that levels of congressional capacity has a direct influence on when and how presidents make use of their unilateral powers, the authors demonstrate that increasing these levels can alter the incentives of a president to the point of curbing his use of them. In other words, if you are disturbed with the ability of a president to legislative via executive orders, perhaps more attention needs to be paid to increasing the transparency of how executive orders are crafted or published; or by increasing the stagnant levels of congressional staffing and addressing their high levels of turnover. It’s not enough to elect members of Congress that promise to be a check on an over-reaching executive. As put by Bolton and Thrower, “executive power can be constrained; however, it requires a legislature with not only the will but also the ability to do so.”