Is Congress Broken? Not Necessarily

By Richard M. Skinner

William F. Connelly, Jr., John J. Pitney, Jr., and Gary J. Schmitt, Is Congress Broken? The Virtues and Defects of Partisanship and Gridlock (Brookings Institution Press, 2017).

Woodrow Wilson would not like this book. Newt Gingrich would not like it either. Is Congress Broken? The Virtues and Defects of Partisanship and Gridlock contains much criticism of the model of “party government” promulgated by Wilson and implemented by Gingrich. Under this model, united parties offer contrasting agendas to the public, which then chooses one. The winning party then implements its policies, with little role for deliberation, in committees or otherwise. But as Kathryn Pearson (University of Minnesota) notes in her chapter, such parliamentary-style parties fit awkwardly with our constitutional system.

The Anti-Federalists would not like this book. Many libertarians and populists probably would not like it either. Most of the contributors to this volume defend the role of expertise and deliberation – of learning and reasoning – in the work of Congress. While many of the authors believe in limited government, none show hostility to career politicians. They also generally defend transactional politics – bargaining and compromising – as a necessary means of making government function. Brookings’ Jonathan Rauch’s “political realism” provides a dominant framework for this volume. Echoing Max Weber’s “Politics as a Vocation,” he declares that government is hard, often frustrating work. We need institutions and relationships – both formal and informal – that make politics function, even some of their workings may not look pretty in close-up. Stability is difficult, and should be prized. Transparency can undermine governance, even when well-intentioned.

James Madison would like this book. William F. Connelly, Jr. (Washington and Lee University) and John J. Pitney, Jr. (Claremont McKenna) provide another important framework in their argument for “Madisonian republicanism.“ They particularly defend the separation of powers against its critics, including those who automatically assume that gridlock is bad.  Congress is worth defending as an institution, not simply as a means of enacting partisan goals. Connelly and Pitney also agree with Madison in accepting self-interest, partisan difference, and political ambition as normal parts of government.  

This work has a rich sense of congressional history. Daniel Stid (William and Flora Hewlett Foundation) discusses the impact of the APSA Committees on Congress and on Political Parties, which both inspired activities of reformers for decades after their work was published in the wake of World War II. Donald Wolfensberger (Wilson Center) traces the evolution of House rules, from the Founding to the current era. Kathryn Pearson discusses the history of the committee-party relationship in the House of Representatives. All three chapters delight the reader, and should interest both academics and political practitioners. Stid’s work is especially fascinating, since he shows how two sets of ideas profoundly shaped the evolution of Congress and influenced the worldviews of figures holding disparate ideologies. (See below.)

Given the editors’ avowed allegiance to James Madison, it should not be surprising that multiple authors are concerned with improving deliberation in Congress. Wolfensberger and Daniel Palazzolo (University of Richmond) both show concern that “party government” can inhibit deliberation. If most decisions are made by a small group of leaders, and if restrictive rules inhibit amending activity, members have little opportunity to discuss the merits of legislation. In a chapter on the Senate in an otherwise House-centric volume, Peter C. Hanson (University of Denver) argues that reliance on omnibus legislation can sacrifice deliberation that would be stimulated by traditional appropriations bills.

The declining role played by congressional committees concerns several of the contributors to Is Congress Broken?. Committees allow members to acquire expertise and to participate in policymaking. But, beginning with the Gingrich Speakership, committees have lost much of their importance in the House of Representatives. Committee staff has shrunk, committee hearings have been less frequent, and committees are increasingly bypassed on critical legislation. Melanie Harlowe bemoans oversight hearings that have become highly partisan, contentious, and lacking in substance. Multiple authors argue that the imposition on term limits on Republican chairs and ranking minority members has reduced the incentive to acquire expertise. They argue that committees should play a more central role in legislation, and that committee-passed bills should be more often protected in the Rules Committee. Perhaps if more members had the opportunity to engage in meaningful policymaking through committee work, they might be more vested in the ultimate outcome, and be less attracted to obstructionist tactics.

The desire to revitalize committees fits with a broader concern with expertise. After growing in the 1960s and 1970s, Congress’s in-house sources of expertise have shrunk. Not only has committee staff been slashed, but the Congressional Research Service and the Government Accountability Office have also seen their resources cut back. The Office of Technology Assessment was completely abolished in 1995. Instead, members have become increasingly dependent on lobbyists for information.  A highly centralized House, where seniority no longer carries the power it once did, gives fewer members the opportunity or incentive to build expertise.

The authors mostly show skepticism about the impact of the “party government” that has developed over the past generation. Stid traces how Woodrow Wilson’s vision influenced the 1950 APSA Report on Political Parties, and, in turn, the Democratic Study Group of the 1950s and 1960s, the post-reform Democrats of the 1970s and 1980s, and the Gingrich-led Republicans of the 1990s. Wolfensberger discussed how the latter two groups used the Rules Committee to impose “partisan governance” on the House floor, allowing the majority party to effectively shut out the minority. The discussion of the rise of party government could have benefited from more recognition of how it served as an attractive paradigm to those frustrated by existing arrangements: post-World War II liberal Democrats dissatisfied by the ability of conservative committee chairmen to block civil rights legislation or expansions of the New Deal, Reagan-Bush-era Republicans who found that a Democratic majority increasingly shut them out of policymaking.

There are some signs that the “party government” model is breaking down, at least for Republicans. Speaker John Boehner attempted to dominate the House as his immediate predecessors did. But Tea Party dissent made centralized leadership frustrating at best, impossible at worse. Paul Ryan promised a more open legislative process and a return to “regular order.” So far, he has delivered mixed results.

Several authors offer ideas to make the legislative process both smoother and more participatory. Restoring earmarks might make it easier to build majorities, although Hanson urges that earmarks be made available on a more limited scale than they were before 2010, so as to keep appropriators from being overwhelmed. But as Mark Schmitt (New America) has noted, for earmarks to work, members must want them – some members of the House Freedom Caucus take pride in their lack of interest in traditional pork barrel. Hanson and Pearson call for less reliance on omnibus legislation and other “must-pass” legislation.

While his paradigm of “political realism” suffuses this volume, Rauch actually differs from many of his fellow contributors on some key points. If several authors feel that centralized party leadership has gone too far, Rauch wants more of it, and does not see a trade-off between party government and vibrant committees. This viewpoint fits with his concern with excessive individualism, which few other contributors see as a problem that besets the present-day Congress. He also dwells on topics such as campaign finance and primaries, which appear rarely or not at all in the other writings in this volume. On the other hand, Rauch’s warning against political amateurism and defense of traditional politics are both quite timely.

Reading Is Congress Broken? would be most appropriate for journalists, political practitioners, and others interested in learning about Congress through recent scholarship. The volume’s historical perspective could be particularly helpful to those who are familiar with Capitol Hill today, but would like to learn more about how the current system evolved. Like many edited volumes, this work also allows busy readers to get up to speed on the work done by multiple scholars, without the time commitment required by entire books. (The volume grew out of a 2015 conference held at the American Enterprise Institute, and sponsored by the Hewlett Foundation).

There is a reason why Is Congress Broken? ends in a question mark. Connelly and Pitney, in particular, appear comfortable with a legislative branch that features partisan conflict and self-interest. In fact, they see it as thoroughly compatible with Madison’s vision.  But all the authors see much that could be improved. Congress needs to become better equipped to play a co-equal role in our political system. And perhaps no change could do more than restoring Congress’s “brain” by revitalizing the committee system and modernizing its internal sources of expertise.

Dr. Richard Skinner (@richardmskinner) is the author of More Than Money: Interest Group Action in Congressional Elections (Rowman & Littlefield, 2007).  He has taught in the Washington programs of New York University and the University of Southern California, and for Johns Hopkins University, American University, and the George Washington University's Graduate School of Political Management.  

Video of Meeting On: Does Congress Have the Capacity it Needs to Conduct Oversight?

Envisioned by the founders as the "first" branch of government, Congress has the responsibility of overseeing and managing the other two arms of our constitutional system. And yet, as the executive branch has grown in power and prestige, Congress has increasingly lost its authority.

What resources does Congress currently employ when overseeing federal agencies? Which current resources are well-used; which are under-utilized? What additional tools and resources does Congress need to engage in truly effective oversight?

This video carries the presentations given at the April 23, 2017 gathering of the Legislative Branch Capacity Working Group. (The video concludes before the start of the question and answer session with attendees.) The featured speakers were Justin Rood (Project On Government Oversight), Morton Rosenberg (Constitution Project), Kevin R. Kosar (R Street Institute), and Lee Drutman (New America).

OPEN Government Data Act Moves to Senate Floor After Markup

Legislation requiring federal agencies to publish their data online in a searchable, nonproprietary, machine-readable format has been cleared for the Senate following a May 17 markup by the Senate Homeland Security and Governmental Affairs Committee.

Sponsored by Sen. Brian Schatz, D-Hawaii, S. 760, the Open Public Electronic and Necessary Government Data Act is identical to an earlier Schatz bill that passed the Senate unanimously last year after analysis by the Congressional Budget Office determined it wouldn’t cost taxpayers any money.

What it would do is modernize government agencies and increase their effectiveness, while also allowing taxpayers to see how their money is spent. For these reasons, R Street joined more than 80 organizations—including trade groups, businesses and other civil-society organizations—in urging the Senate committee to pass these badly needed reforms.... Read more at http://www.rstreet.org/2017/05/18/open-government-data-act-moves-to-senate-floor-after-markup/

Article I Restoration Resolution Introduced

Rep. Warren Davidson, R-OH, introduced the Article One Restoration Resolution on May 17. The legislation, he stated in a "Dear colleague" letter, 

"would require each relevant authorizing committee to review statutes within its jurisdiction and propose changes that limit excessive executive discretion. The committees would then submit these suggestions to the Oversight and Government Reform Committee, which would package them up and report them to the whole House for consideration. AORR envisions a committee-led process. There are no strict targets or sanctions for committees. There is also no expedited or TPA-like process for floor consideration. The AORR simply lays out a process, and an opportunity, for the House to consider legislation retaking legislative prerogatives in one, unified package."

A draft copy of the legislation is here, and the official version of the bill soon will appear on Congress.gov.

Is the Senate’s Russia Investigation Moving Too Fast?

The Washington Post's Paul Kane writes:

"Sens. Richard Burr (R-N.C.) and Mark R. Warner (D-Va.), the chairman and ranking minority party member of the Senate Intelligence Committee, are the latest to stand in the long shadows of the Watergate committee. They regularly face questions about why they aren’t moving faster to investigate Russian meddling in the 2016 presidential campaign. In fact, they’re moving more quickly than Ervin and Baker did 44 years ago. If it doesn’t seem that way, that’s got more to do with the insatiable appetites of social media and cable news than with reality...."

Read more at https://www.washingtonpost.com/powerpost/believe-it-or-not-senates-russia-investigation-is-moving-faster-than-its-watergate-counterpart-44-years-ago/2017/05/13/8e3f8bcc-3746-11e7-b4ee-434b6d506b37_story.html

For more information on the Senate Select Committee on Intelligence, see https://www.intelligence.senate.gov/. On oversight of intelligence agencies see University of Georgia Prof. Loch K. Johnson's webpage.

Three Years In, What Does the DATA Act Tell Us About Agency Spending?

Trying to figure out exactly how much money the federal government spends long has been an exercise in futility for those few brave souls who endeavor to try it. Though the U.S. Treasury has published financial data since the beginning of the republic, the government has an uneven history, to say the least, when it comes to reporting agency expenditures.

Agencies traditionally have employed a hodgepodge of data and spending models that fail to adhere to a common metric. This makes it difficult for lawmakers and policy experts to wrap their arms fully around federal agency spending. Since at least the 1970s, efforts have been afoot to standardize government data, culminating in 2014’s Digital Accountability and Transparency Act, also known as the DATA Act.

The bill’s purpose was to make expenditures both more transparent and more accessible. It requires Treasury to establish common reporting standards across all federal agencies, with the data posted online in a publicly accessible format....

Read more at http://www.rstreet.org/2017/05/08/three-years-in-what-does-the-data-act-tell-us-about-agency-spending/

Come to the May, 23 Meeting of the Legislative Branch Capacity Working Group

Does Congress Have the Capacity it Needs to Conduct Oversight?

RSVP

Envisioned by the founders as the "first" branch of government, Congress has the responsibility of overseeing and managing the other two arms of our constitutional system. And yet, as the executive branch has grown in power and prestige, Congress has increasingly lost its authority.
What resources does Congress currently employ when overseeing federal agencies? Which current resources are well-used; which are under-utilized? What additional tools and resources does Congress need to engage in truly effective oversight?
Come join us as we discuss these questions. Lunch will be provided.

***PLEASE NOTE THAT THIS MEETING WILL BEGIN AT 12:30PM---30 MINUTE LATER THAN THE STANDARD LEG BRANCH MEETING START TIME.***

***
SPEAKERS
Morton Rosenberg, The Constitution Project
Justin Rood, Project On Government Oversight

Why Do We Need Legislative Process?

Source: J. Ottmann Lith. Co. after Charles J. Taylor, 1894. Source: U.S. Senate.

Source: J. Ottmann Lith. Co. after Charles J. Taylor, 1894. Source: U.S. Senate.

Listen to the University of Georgia's Prof. Anthony J. Madonna and George Washington University's Prof. Sarah Binder as they explain some of the upper chamber's arcane machinations, and why institutions need rules.

The podcast is at https://gimletmedia.com/episode/the-senate-whisperer/

For Lasting Regulatory Reform, Congress Must Act

by C. Jarrett Dieterle

The Wall Street Journal’s lead editorial from April 18, “Trump’s Deregulation Project,” applauded President Donald Trump’s early deregulatory moves, such as issuing Executive Order 13771 and whacking Obama-era rules via the Congressional Review Act. While these moves are a step in the right direction, true deregulatory change will require more than executive orders and ad hoc targeting of individual rules through the CRA. To put our country on a sustainable path toward deregulation, the processes by which agencies enact regulations must be reformed.

This ultimately requires congressional involvement, in the form of comprehensive regulatory-reform legislation. Unlike executive orders, which may simply be reversed by the next president, statutory changes lock in the benefits of reform for the long haul. Congress already has a menu of options, including bills like the REINS Act, which would require express congressional approval of agencies’ costliest rules. The Regulatory Accountability Act is another alternative that would codify portions of previous executive orders on agency rulemaking, among other changes.

Congress is the first branch of government and the one primarily tasked with oversight of the executive branch. It needs to reassert itself if we are to turn this deregulatory moment into a deregulatory trend.

(On Congress and recent regulatory reform legislation, see http://www.rstreet.org/wp-content/uploads/2017/04/91.pdf)

House Legislative Branch Appropriations Open Hearing, May 3, 2017

By Kevin R. Kosar

To its great credit, the House's legislative branch appropriations subcommittee held an open hearing where anyone with an interest in legislative branch spending could have their say. This is the first time this has occurred since 2011, and hopefully Chairman Kevin Yoder, R-Ca, and Ranking Member Tim Ryan, D-Oh, will continue the practice.

And get this---the live streamed it and the video of the hearing was immediately posted on YouTube.

Topics discussed included funding for the House's Tom Lantos Human Rights Commission, upgrading the House of Representatives' data platform, more equitable public access to Congressional Research Service reports, and possible reforms to the Copyright Office.

The witnesses and their written statements are below, and Kevin Kosar's oral testimony is here.

The Honorable Randy Hultgren (not present to testify)
Member of Congress, Washington D.C.
Testimony

The Honorable James P. McGovern
Member of Congress, Washington D.C.
Testimony

Kevin Kosar
Vice President of Policy, R Street Institute
Testimony, Biography and Witness Disclosure

Keith Kupferschmid
Chief Executive Officer, Copywright Alliance
Testimony, Biography and Witness Disclosure

Daniel Schuman
Policy Director, Demand Progress
Testimony, Biography and Witness Disclosure

Dr. Joshua Tauberer
President, Civic Impulse, LLC
Testimony, Biography and Witness Disclosure

Rep. Ken Buck on the Federal Budget Accountability Act

By Kevin R. Kosar

Rep. Ken Buck, R-Co, introduced H.R. 1999, the Federal Budget Accountability Act in April. It is a short bill --- barely two pages --- but it aims to help Congress answer a basic oversight question: how much revenues does the federal government actually receive each year from offsets?

As part of the congressional budget process, Congress gathers estimates of revenues to be received by the federal government. These revenues can be used to “offset” authorizations for spending. So, as a Buck press release points out, Congress authorizes the Strategic Petroleum Reserve to sell oil. “However, the price of crude oil continuously fluctuates…. [which] creates uncertainty regarding the accuracy of Congressional Budget Office projections versus actual revenue received through offsets.”

I had the chance to peak with Rep. Buck about the bill. He arrived in the House in January 2015, and soon thereafter came upon this issue. "There was not a moment when a lightbulb went off. It was a series of statements about how new spending was ‘paid for.’”

Prima facie, Buck’s bill may seem utterly unobjectionable. It requires nothing more than the Office of Management and Budget to annually report to Congress on the actual revenues received from offsets. Obviously, it is a basic fiduciary duty to discern whether the revenues received actually cover the costs as intended. A few members of the House budget committee cosponsored the legislation.

But will H.R. 1999 advance? It is not clear. Rep. Buck suspects that additional spending is being passed off as budget neutral by the misuse of overly optimistic offsets. (On offsets and spending amendments in the House, see this CRS report.) “If they pass the bill, the misrepresentations will be known.” Enacting the legislation could collectively call out Congress and make the already tough debates over mandatory spending more difficult. “Nobody wants to know what the answer is,” Buck reports, “but we all know.... We just don’t know how bad it is.”

GovTrack's Written Testimony to the House of Representatives on Public Access to Legislative Information

This week, the House's Committee on Appropriations Subcommittee will hold a hearing. In anticipation, Joshua Tauberer has published online the testimony he submitted.

Tauberer, who founded GovTrack.US and developed EveryCRSReport.com, recommends Congress:

  • Create a public advisory committee on legislative transparency for stakeholders to engage systematically on this issue, including but not limited to access to data.
  • Make the Bulk Data Taskforce permanent and fund the participation of the offices and agencies that are members of the taskforce.
  • Support congressional publication of other important information in a structured data format, including amendments, House committee votes, the Biographical Directory (Bioguide), and committee witness documents.
  • Continue to support efforts to modernize the House’s technology systems especially with respect to the work of committees and efforts to connect constituents to their representatives. Cultivate the legislative branch’s in-house technology talent as other parts of the government are doing.
  • Increase House staff levels above their current historic lows so the House has sufficient capacity for policy analysis and oversight and direct the Congressional Research Service to report on on how staffing levels impact the House’s capacity to function, and make that report public.
  • Systematically release the non-confidential Congressional Research Service reports to the general public. Years of experience has demonstrated that public access to these reports enhances the public debate without creating a commensurate burden.

Read more at https://medium.com/@govtrack/our-testimony-to-the-house-of-representatives-on-public-access-to-legislative-information-2fe0c8402f29

An Uncomfortable Reality… Congress Needs More Staff

At the Ripon Society Forum, Kevin R. Kosar writes:

Mark Twain famously remarked, “Suppose you were an idiot, and suppose you were a member of Congress; but I repeat myself.”

Although famously crotchety, he did touch upon a basic truth: our elected officials are amateurs. They arrive in Washington, DC with only an inkling of how government works. How could it be otherwise?

Few legislators have any previous federal policy experience. Many have made their careers in business or law. Others worked as doctors, teachers, farmers, law-enforcement officers, and ministers. Members of Congress are we the people, not an aristocratic caste of policy elites trained since birth to govern.

And there is the flip side of the coin: our federal government is immense.... Read more at http://www.riponsociety.org/article/an-uncomfortable-reality-congress-needs-more-staff/

In Praise of Standardized Data for Congressional Oversight

Alex Pollock, distinguished senior fellow at the R Street Institute, spoke of the value of standardized financial data on federal government activities. He observed to attendees of the Financial Data Summit, that reports are useful certainly, but...

"[W]hy not have multiple interpretative perspectives on the same data, instead of only one?  This is a fine example of the difference between one perspective—GAAP—and other possibly insightful perspectives on the same financial object.  Why not have as many perspectives readily available as prove to be useful?

"We are meeting today in Washington, DC, a city full of equestrian statues of winning Civil War generals.  (The losing side is naturally not represented.)  Think, for example, of the statues of General Grant or Sheridan or Sherman or Logan—all astride their steeds.  Perhaps you can picture these heroic statues in imagination.

"I like to ask people to consider this question:  What is the true view of a statue?  Is it the one from the front, the top, the side (which side?), or what?  Every view is a true view, but each is partial.  Even the view of such an equestrian statue directly from behind—featuring the horse’s derriere—is one true view among others.  It is not the most attractive one, perhaps, but it may make you think of some people you know.

"Likewise, what is the true view of a company, a bank, a government agency, a regulated activity, or a customer relationship?  Every document is one view."

Read more at https://www.datacoalition.org/alex-pollock-data-transparency-and-multiple-perspectives/