February 23, 2017 Meeting: What Role Should Congress Play in Regulation?

Code_of_Federal_Regulations.jpg

RSVP here.

Historically, Congress has delegated great authority to the executive branch when it came to regulatory matters. For the most part, the executive branch has had a free hand, and when regulators exceed the law, effective push-back frequently has come via the judicial branch.
 
Lately, however, Congress started asserting itself back into regulatory decision-making by using the Congressional Review Act to curb new regulations. But the executive branch struck back---President Donald J. Trump recently mandated a regulatory budget, the workings of which will be decided by his Office of Management and Budget.
 
In light of these developments, what role should Congress play in regulatory policy? Does it have the capacity to play a meaningful role? What tools does it have and need?
 
Come join us for this discussion. Lunch will be provided.
***
Speakers: 
 
Jarrett Dieterle, R Street Institute
Kevin R. Kosar, R Street Institute
Philip Wallach, Brookings Institution
 
***
 
This meeting is open to Capitol Hill staff (except interns); experts on Congress; and anyone else who cares about the well-being of America’s legislative branch. This meeting is open to media, and the group’s co-directors, Kevin R. Kosar and Lee Drutman, are available for interviews and comment. They can be reached at kkosar@rstreet.org and drutman@newamerica.org.
 
***
 
New America and the R Street Institute launched the Legislative Branch Capacity Working Group in spring 2016. The group formed in response to widespread perception that Congress is dysfunctional. The Legislative Branch Capacity Working Group aims to assess Congress’ capacity to perform its constitutional duties and to collaborate on ideas to improve the legislative branch’s performance in our separation-of-powers system.

Can the Senate GOP Approve Supreme Court Nominees Without Going Nuclear?

Yes, writes Sean Davis at The Federalist, and the Senate can do so while allowing robust debate. The path, Davis argues, is via the "two speech" rule:

"By enforcing Senate rules regarding debate — specifically Rule XIX — Senate Majority Leader Mitch McConnell can guarantee an up-or-down vote on Supreme Court nominees without resorting to the nuclear option, which would kill the filibuster and instantly eliminate all debate at the whim of a simple majority. Rule XIX of the Standing Rules of the Senate plainly states that on any given question, a senator may speak only twice on the same legislative day. This clause is known in Senate parlance as the two-speech rule. No senator may speak more than two times on the same matter on the same legislative day."

Read more at http://thefederalist.com/2017/02/07/heres-republicans-can-confirm-supreme-court-nominees-without-killing-filibuster/#.WJoG4E9KB9I.twitter

Want Your Member to Testify for Strengthening the Legislative Branch?

Then promptly let the House's Legislative Branch Subcommittee know by this Friday. Full details are below.

HOUSE APPROPRIATIONS COMMITTEE
Legislative Branch Subcommittee

INSTRUCTIONS FOR MEMBERS TESTIFYING AND
SUBMITTING TESTIMONY FOR THE RECORD

This year the Legislative Branch Subcommittee has scheduled a hearing to take Member testimony on the agencies and programs under its jurisdiction on February 15, 2017 beginning at 2:00 p.m. in room HT-2 of the Capitol. The order of appearance and additional hearing details will be provided prior to the hearing.

Staff of interested Members should contact Tim Monahan at (202) 226-7252 or tim.monahan@mail.house.gov to confirm their Member’s participation. All requests to testify must be received by close of business on February 10, 2017 as well as the Members prepared statement in a pdf file attachment. Testimony for the record should be received no later than February 24,
2017 to be included in the record. Please use the following guidelines in your statement:

 

  • Do not exceed five pages, single sided
  • Single-spaced on 8.5” x 11” (letter size) paper
  • At least 12 point font
  • One-inch margins
  • Clearly indicate the Member’s name and district at the top of the first page
  • Do not include color and detailed photos as the hearing volume will be photographically reproduced; however, use of charts and tables and the use of appropriate bold type and bullets are acceptable, as long as they are within the five page maximum length.

Thank you for your interest in the activities of the Legislative Branch Subcommittee. 

 

What Place Will the Filibuster Have In the 115th Congress?

Photo credit: McConnnell.senate.gov

Photo credit: McConnnell.senate.gov

by Rob Oldham

For the first time in six years, we have unified government. With Republicans in charge of the House and the Senate and with Donald Trump as President, the GOP is well-positioned to deliver on long-standing campaign promises such as repealing the Affordable Care Act, cutting the budget deficit, and rolling back Obama-era regulations.

However, there are a few barriers in front of the Republican government. One is internal dissent in Congress. Not many Republicans ran on the same platform as Trump, differing on key issues like entitlement reform, infrastructure spending, immigration, and foreign policy. And it is unclear whether Republicans will be cohesive enough to pass major policies and have them signed by Trump.

But even if the GOP is united, it won’t be able to move most legislation. In a recent interview with Politico, Majority Leader Mitch McConnell seemed bullish on keeping in place the filibuster—the 60-vote threshold that the Senate requires to cut off debate on legislation and Supreme Court nominees—despite having only 52 Republicans in the Senate. Both parties have used the filibuster to block legislation that does not have the support of 60 senators, making it an effective supermajoritarian vote requirement. McConnell’s insistence on keeping the filibuster has irked both House Republicans (who are used to majoritarian rules) and President Trump.

Both point to the Democrats’ rollback of the filibuster when they were in the majority and suggest that Republicans do the same. In 2013, the Harry Reid-led Senate Democrats changed the Senate rules so that a simple majority of senators could vote to cut off debate (also known as “invoking cloture”) on executive branch nominees and lower-level federal judges. Reid did this by reinterpreting Senate Rule XXII, which outlines procedures for invoking cloture and provides for the 60-vote threshold. Without getting too far into the weeds, the Senate had failed to invoke cloture on the nomination of a federal judge and, after the members agreed to reconsider the cloture vote, Reid made a point of order that all nominations that were below the Supreme Court should be decided by majority vote. The presiding officer of the Senate ruled against Reid’s point of order. Reid appealed the ruling and the Senate voted to reverse the presiding officer’s decision, effectively creating a new standard for invoking cloture on most nominations.

Republicans will have their first chance to use the new cloture rule for Republican nominees as Trump’s executive branch picks come through. Rex Tillerson and Betsy DeVos, Trump’s controversial selections for Secretary of State and Secretary of Education, respectively, might have had trouble getting 60 votes in the past, but were confirmed under the new rule. Once Senate Republicans have seen how simple it is to advance their priorities without the filibuster, they may feel pressure to use Reid-like parliamentary procedures to lower the threshold for cloture on legislation and the Supreme Court.

***

If McConnell sticks to his guns though and refuses to abolish the filibuster, Republicans still have another way they can push legislation through with their slim Senate majority. In the past, a process known as budget reconciliation has been used by the Senate to bypass the 60-vote cloture requirement and pass legislation with a majority vote. Reconciliation was used to pass massive cuts to domestic programs in 1981, the so-called Bush tax cuts in 2001 and 2003, and the Affordable Care Act in 2010.

Budget reconciliation starts when Congress passes a blueprint for the annual budget known as a “concurrent resolution on the budget.” The budget resolution is not an overly detailed document as it merely sets general numbers for discretionary spending, revenues, the deficit, and the public debt. It does not carry legal effect and is not submitted to the president for his approval or veto. The resolution is also not subject to the cloture rule in the Senate and can pass with a simple majority vote. Most importantly though, the resolution may contain instructions for certain congressional committees to report legislation that will “reconcile” federal law with the spending levels set by the budget resolution.

This is where things get interesting. The 2009-2010 legislative battle over the Affordable Care Act serves as a useful example. In April 2009, the House and Senate Democrats passed a budget resolution that included reconciliation instructions for healthcare reform. The resolution contained a section that called on certain standing committees to propose changes in healthcare law that would reduce the federal deficit. The 1974 Congressional Budget Act requires that reconciliation legislation affect the federal government’s bottom line of spending and revenues, so the proposed changes would have to have a budgetary impact. The resolution said the proposed changes had to be reported to the House Budget Committee by a certain date.

Including reconciliation instructions in the budget resolution did not turn too many heads though as the Senate Democrats had 60 members (enough to invoke cloture if they stuck together) and were part of a unified Democratic government. The House passed its version of the Affordable Care Act (a liberal bill that included a public option for purchasing health insurance) in November 2009 and the Senate passed its version (a more conservative bill as it had to win the votes of conservative Democrats Ben Nelson of Nebraska, Mary Landrieu of Louisiana, and Blanche Lincoln of Arkansas) in December. But before the two chambers could sort out their differences in conference committee, Republican Scott Brown won the seat of the late Ted Kennedy in a special election. Brown’s victory brought the Democrats down to 59 votes and would prevent them from invoking cloture on any compromise bill.

After a brief period of panic following the loss of the Kennedy seat, President Obama, House Speaker Nancy Pelosi, and Reid decided to resolve the differences between the House and Senate healthcare bills through budget reconciliation. Reconciliation legislation is privileged under the Congressional Budget Act and cannot be filibustered in the Senate, allowing the Senate Democrats to pass a reconciliation bill with just 50 votes. The House agreed to pass the Senate’s more conservative bill first (this bill would not have to face a filibuster again) and then both chambers were to pass the reconciliation bill that contained the compromises that Obama, Pelosi, and Reid negotiated. Together, the Senate bill and the reconciliation bill would form the Affordable Care Act.

The reconciliation process started in the House, where the standing committees reported legislation to the House Budget Committee. This reported healthcare legislation was supposed to reduce the federal deficit per the instructions in the budget resolution. The Budget Committee approved the reconciliation bill in March 2010 and sent the reconciliation bill to the House Rules Committee, where the compromises negotiated by Obama, Pelosi, and Reid were put in place. The reconciliation bill passed the full House in late March and was sent to the Senate. Even though it could not be filibustered in the Senate, the reconciliation bill faced an additional procedural hurdle: the Byrd rule.

Informally adopted in 1985 and codified in 1990, the Byrd rule (named after former Majority Leader Robert Byrd) requires reconciliation legislation to be consistent with the reconciliation instructions included in the budget resolution, which almost always means that the legislation must decrease federal spending or increase revenues. If a senator thinks that part of the reconciliation bill is extraneous (there are six definitions for “extraneous”), he or she may make a point of order against that part of the bill. The Byrd rule can be waived and the ruling of the Senate’s presiding officer sustaining a Byrd rule objection can be overturned. However, each requires 60 votes, which defeats the point of the using the budget reconciliation process to bypass the filibuster.

In the case of the Affordable Care Act, most of the important non-budgetary provisions (such as mandates on insurance companies, businesses, and individuals) were in the original Senate bill, which had already been signed by President Obama. These would not have been allowed in a reconciliation bill. There were a few successful Byrd rule points of order against the reconciliation legislation, but nothing that significantly impacted the final product. The reconciliation bill was slightly changed by the Byrd rule though, so after it passed the Senate with 56 votes, it was sent back to the House, which agreed to the amendments and sent it to President Obama’s desk.

***

Returning to the present, McConnell has said the Senate will use the budget reconciliation process to repeal the Affordable Care Act. The budget resolution that has already passed the House and the Senate contains instructions that allow for reconciliation legislation to repeal the healthcare law.  Senate Republicans successfully tested this tactic in 2015 when it sent a repeal through reconciliation to the White House where President Obama vetoed it. McConnell has also said reconciliation will be used to pursue tax reform. If Republicans stick together, there is little that Democrats can do to oppose them.

Still, the Affordable Care Act example shows that budget reconciliation is a limited process and requires considerable forward planning when passing the budget resolution. Moreover, thanks to the 60-vote requirement to overturn the Byrd rule, it cannot be used to pass laws that have no budgetary impact or defy the original budget resolution. Republicans will still need 60 votes to pursue most of their social policy goals.

The pressure will certainly be strong for McConnell to do away with the filibuster as Reid did in 2013. If he resists, expect to see more from President Trump in the way of executive orders, campaigning against Senate Democrats (ten 2018 races feature incumbent Democrats from states Trump won), and possibly bringing back his attacks on establishment Republicans who defy him. Opinions are split on whether American political institutions will withstand Trump and his anti-Washington political movement. Supermajoritarian rules in the Senate will likely be among the first that are put to the test.

Will the Senate further curtail the filibuster? It is hard to say. McConnell has proven to be an institutionalist thus far, but pressure from the Republican base and the administration may lead him to roll back the filibuster. Reforming the rules as Reid did would still require a majority of senators though, so McConnell would have to convince at least 49 of his colleagues to join him. Republicans Susan Collins, Lindsey Graham, and Susan Collins have fought to preserve the filibuster before and McConnell might also face resistance from Trump foes Jeff Flake and Ben Sasse. All of which means 2017 will prove to be a very interesting year. 

Were the Staffers Who Worked on the Trump EO in the Wrong?

Or Is the Problem the House's Guidance on Transition Work?

By Michael L. Stern

Last Monday, Politico reported that senior Republican staffers on the House Judiciary Committee had been involved in helping to craft President Donald J. Trump’s controversial executive order restricting travel to the U.S. from seven Muslim countries. Although the committee chairman apparently gave permission for them to assist the Trump transition, neither he nor House leadership were informed of the draft executive order or the committee staff’s work on it. This may have been because the staffers signed nondisclosure agreements with the transition team, agreements which presumably purported to bar them from discussing transition work with outsiders, including the members of Congress for whom they worked.

The next day, a group called the “Campaign for Accountability” filed a complaint with the Office of Congressional Ethics, alleging that the staffers may have violated House rules and/or federal law by using congressional resources for matters other than the transaction of House business. It also suggested they could have violated House rules by undertaking outside employment without the permission of their employing office, and that they may have breached professional duties of loyalty owed as lawyers to their congressional client. The complaint, however, fails to cite guidance from the House Ethics Committee that addresses the circumstances in which it is permissible for House staff to assist in the presidential transition. (See Honorable Charles W. Dent & the Honorable Linda T. Sanchez re “Guidance on House Staff Assisting in the Presidential Transition”  Memorandum of Dec. 5, 2016 , herein the “Ethics Transition Memo.”).

Depending on the facts that emerge, it is possible that these staffers violated the Ethics Committee’s guidelines for transition-related work. If they signed nondisclosure agreements without checking with the Judiciary Committee chairman or the Ethics Committee, this was certainly ill-advised. But in my judgment the “scandal” related aspects of this affair are less significant than the institutional problem it reveals. To understand why, let’s take a closer look at four key questions about this story.

Were the Staffers Working For the Transition or On Transition Matters?

The Ethics Transition Memo begins by laying out “three alternatives under which House employees may assist the transition of the new Administration.” The first alternative discussed by the memo is to “assist the transition as part of congressional duties.” Here the Ethics Committee notes that “Members could reasonably determine that having staff assist the incoming Administration would inure to the long-term benefit of their committee, their constituents, or their leadership office, and such assistance could therefore appropriately be deemed to pertain to official congressional business.”

If the Ethics Committee is merely describing a process analogous to the normal interchange between congressional staff and government agencies, its advice seems unexceptionable. Congressional staffers have frequent and ongoing discussions with government agencies for a variety of purposes. They routinely gather information, provide advice, and attempt to influence an agency’s policy in a manner consistent with the viewpoint of their employing Member or office. But it would be somewhat odd to describe this relationship as “assisting” the agencies; in fact, it is often more adversarial than cooperative.

The Ethics Transition Memo explains that under this alternative “House employees would remain responsible to and under the direction of their employing Members,” and “[t]hey would not become employees of the President-elect, the transition, or any person working for the transition.” (emphasis in original). But this guidance may be muddled by the repeated references to “assisting” the transition. If the House Judiciary staff was operating under this alternative, its sole focus should have been on assisting the committee in advancing its policy objectives. If these objectives coincide with those of the transition, that’s wonderful. But it is not the committee staff’s job to assist the transition per se.

One gets the sense that the Ethics Committee may be assuming that members will in essence lend their staff experts to the transition team for substantial periods of time in order to (a) influence the transition’s thinking on key issues and/or (b) generate goodwill for the future. That may be fine, but the guidance should be clear that the staff’s sole duty of loyalty is to their employing members/offices and the House.

If the Staffers Were Working for the Transition, Did They Comply with House Rules for Doing So?

Assuming the House Judiciary staffers were not simply performing their normal congressional duties, this leaves the two other alternatives described in the Ethics Transition Memo for working on transition matters. First, they could have been formally detailed from the House to the transition pursuant to the Presidential Transition Act of 1963 (3 USC 102 note). House detailees retain their House salary and benefits, but by law the Office of the President-elect must reimburse the House for such costs during the detail period. Moreover, the House detailees “become responsible to the President- or Vice President-elect for that period, rather than to their employing Member.” It seems unlikely, however, in the circumstances described that the House Judiciary staff had been formally detailed to the transition.

This leaves the final alternative described in the Ethics Transition Memo. The memo notes that “[a]s long as employees do not engage in activities inconsistent with House rules and congressional duties, they are free to spend non-working hours doing whatever they choose, subject to the approval of their employing Members.” Thus, House staffers may volunteer to assist the transition (with their employer’s approval) on their own time. The memo specifically notes that “House employees may use vacation time accrued pursuant to established office policy or take Leave Without Pay (LWOP) to assist the transition.”

If the House Judiciary staffers were acting as volunteers for the transition, certain limitations would apply. As the Campaign for Accountability complaint notes, such volunteer work should not be performed during congressional working hours or using congressional resources. In addition, there are limits on the ability of House staff to receive compensation for their services to the transition. These limits would likely prevent any but the most junior House staffers from accepting any compensation from the transition.

The Campaign for Accountability also suggests that if the committee staffers were lawyers (which seems likely), they may have had additional duties that restricted their ability to work on transition matters. It is true that House rules would prohibit lawyers from receiving any compensation for legal services from the transition, although as already noted they would likely be barred from receiving compensation in any event. It is also possible that conflict of interest concerns would be heightened for lawyers, but generally I think that any staffers who volunteer to work on the transition, whether or not they are attorneys, have an obligation to avoid a conflict with their congressional duties. This obligation deserves greater emphasis in the Ethics Transition Memo.

Are There Circumstances Under Which it Would be Appropriate to Execute a Nondisclosure Agreement with the Transition?

If the House Judiciary committee staff were “assisting” the transition as part of their congressional duties (i.e., the first alternative set forth in the Ethics Transition Memo), it seems clear that they should not have signed any nondisclosure agreement with the transition. As the memo explains, in this situation the staffers “remain responsible to and under the direction of their employing Members.” It would be inconsistent with this direction, and with the staff’s basic duty of loyalty to the committee and the House, to agree to withhold information from their congressional superiors.

In fairness, the staffers may have viewed these forms as boilerplate, and they may not have considered whether the agreements restricted their ability to communicate within the committee or the House. In hindsight, however, it was clearly a mistake to sign nondisclosure agreements with the transition, particularly without seeking guidance from the House Judiciary committee chairman and the Ethics Committee.

 This conclusion is somewhat less obvious, but still holds true, if the staffers were acting as volunteers for the transition. Even though they then would be responsible to the transition, rather than to their employing Member, for the work performed, they cannot undertake any work for the transition that conflicts with their congressional duties. (As mentioned already, this point should be underscored in the Ethics Transition Memo). If congressional staff are to be permitted to volunteer on the transition, the incoming administration must understand that they are still congressional employees and remain fully subject to congressional rules and discipline. If the staff volunteers learn of information which needs to be shared with their congressional superiors, they must be free to do so. The incoming administration can decide for itself whether it wants to accept congressional volunteers on that basis.

It is only if the staffers are formally detailed to the transition that there might be a case for signing a nondisclosure agreement. (I am assuming here that the transition otherwise has the authority to require and enforce such agreements for its employees, which may or may not be the case). Even then, House detailees would be well-advised to get guidance from the Ethics Committee before signing such agreements.

Does the House’s Guidance on Transition Matters Encourage Divided Loyalties among Congressional Staff? 

At the end of the day, I think this story is less about arguable rules violations or poor judgment on the part of the House Judiciary staffers in question, and more about the House’s willingness to tolerate staff with divided loyalties. The reality is that the House understands that staff working on transition matters are often auditioning for a job in the new administration. But if the House’s own experts are encouraged to “assist” the transition without strict rules ensuring that they will continue to serve Congress first and foremost, the legislative branch is put at a substantial disadvantage.

Congress is thinly staffed as it is. It must be able to count on its own employees to keep it informed of key developments such as the Trump executive order on travel. To be clear, we don’t know at this point how much the Judiciary Committee staffers actually knew about the order, or whether they intentionally withheld information from the chairman or others because of the nondisclosure agreements (or for any other reason). However, this situation clearly illustrates the harm that could occur if congressional staff has one foot in the legislative branch and one foot in the executive.

Unfortunately, this problem is not limited to presidential transitions. As I have noted with regard to congressional lawyers specifically, there is always a possibility that the prospect of future executive branch employment undercuts the willingness of congressional staff to vigorously defend Congress’s interests against executive encroachment: “Any congressional lawyer who has accepted, is seeking, or has a near-term interest in employment with the executive branch faces a potentially serious conflict of interest that could compromise his loyalty to his congressional employer.” (See Michael L. Stern, The Ethical Obligations of Congressional Lawyers, 63 N.Y.L.Rev. 191, 213 (2007))

There is no easy solution to this problem. However, the House could make a start by tightening up its guidance on staff work on presidential transitions. It should make it clear that working on transition matters as part of congressional duties is for the benefit of Congress, not for the benefit of the incoming administration. It should also consider eliminating altogether the alternative of working on a transition as a volunteer. If this step is considered too drastic, it should at least make clear that any work on the transition must in no way compromise the staffer’s congressional duties.

Michael L. Stern served as Senior Counsel in the Office of General Counsel, U.S. House of Representatives, from 1996 to 2004. From 2004 to 2005, he served as Deputy Staff Director for Investigations for the Senate Committee on Homeland Security and Governmental Affairs. In 2006, he was Special Counsel to the House Permanent Select Committee on Intelligence. Mr. Stern blogs about congressional legal issues at http://www.pointoforder.com.

Video of Meeting: "Does Congress Have the Technology It Needs to Govern?"

The Legislative Branch Capacity Working Group met in the U.S. Capitol on January 17, 2017 to discuss Congress and technology. The speakers were: 

For questions regarding the Legislative Branch Capacity Working Group, contact kkosar[at]rstreet.org or ldrutman[at]newamerica.org.

Half of House Members and Senators Have Served 8 Years Or Less

The Congressional Research Service released a report chock full of data on terms in office. Contrary to some popular caricatures, the average member of Congress is not an establishment figure who has been in Washington, DC for decades gorging himself at the public trough. As the figure above shows, half of House legislators have served 8 years or less.

That said, the average tenure for both chambers has increased over the past two centuries.

"During the 19th century, the average service of Representatives and Senators remained roughly constant, with little or no change over time; the average years of service was slightly higher for the first half of the century than during the second. During the late 19th and through the 20th century, the average years of service for Senators steadily increased, from an average of just under 5 years in the early 1880s to an average of just over 13 years in recent Congresses. Similarly, the average years of service of Representatives increased from just over 4 years in the first two Congresses of the 20th century to an average of approximately 10 years in the three most recent Congresses."

"Congressional Careers: Service Tenure and Patterns of Member Service, 1789-2017," (CRS R41545) can be downloaded at https://www.everycrsreport.com/files/20170103_R41545_46ced9f7a8ec97adf2ec7b2f7663795d015cc514.pdf

Can Our Political Institutions Handle Our Political Divisions?

New America's Lee Drutman has a new white paper out. He writes:

The United States is a politically divided nation. These divisions have only grown deeper in the past decade. They are increasingly paralyzing our democratic institutions, which rely on cooperation and compromise to function. They are threatening to tear our country apart.
Divided societies have survived as democracies. But to do so, divided societies require careful attention to the design of their political institutions.
For too long, political reformers have attended to the downstream consequences of division, trying to bridge ever-widening political divides by getting political elites to build relationships and work together across party lines. This paper argues that these efforts may be futile. Instead, we need to attend to the institutional choices that are exacerbating these divides. We may not heal the divisions overnight. But to the extent they exist, we can manage them.
Scholarship on managing divided societies through democratic structures leads to three basic institutional recommendations: a weak executive, a strong legislature elected through proportional representation, and a high degree of federalism. Unfortunately, the U.S. only has one of these features: federalism....
The [paper's] recommendation is straightforward. We need to shift the institutional balance of power — away from the executive, and towards the legislature and state and local government, to the greatest extent possible. Fortunately, our existing Constitution allows us to make the necessary changes. It is more a matter of political understanding and political will.

Read more at https://na-production.s3.amazonaws.com/documents/Institutions-Divided-Politics.pdf

Does Congress Need a Congressional Oversight Office?

By Adam Chan

Elaine Kamarck’s recent study, “A Congressional Oversight Office: A proposed early warning system for the United States Congress,” describes

1. Congress’ current abdication of its role as overseer of the Executive branch,

2. the structural changes that have produced this abdication and

3. a solution to reverse these damaging trends.

Kamarck usefully distinguishes between two types of oversight: “fire-alarm” oversight (whereby Congress reacts to surprise scandals in a federal agency) and “police-patrol” oversight (whereby Congress engages in anticipatory monitoring). Although Congress continues to engage in “fire-alarm” type oversight, she notes Congress’ declining willingness to engage in “police-patrol” oversight. In particular, she cites a rapid decrease in oversight hearings and redirection of congressional oversight toward partisan objectives. Kamarck summarizes:

“In the modern Congress oversight is one more political tool – used to discredit the current President during eras of divided government or to discredit the previous president. Missing from this is any semblance of ‘police-patrol’ oversight.”

Even though “police-patrol” oversight may present few political rewards, Kamarck contends that it is essential for good governance. She offers a compelling argument that failure to engage in such oversight can only result in greater waste, fraud, abuse and dysfunction, as federal agencies will lack incentives for efficiency and effectiveness.

Even as the Executive branch has grown massively by all metrics (revenue and expenditure, total employees, complexity of function, etc.), Kamarck laments that “Congress has in the name of budget cutting taken steps that have had the effect of ‘dumbing itself down.”’ She shows that Congress’ steady cannibalism of its own resources, driven by pushes to reduce the size of government, has only served to reduce its capacity for oversight.

Summarizing the well-documented deterioration in congressional resources, she describes declining congressional staff (especially committee staff), a shift of staff to district offices and public relations rather than policymaking in DC, increasingly dismal staff pay (which has the effect of deterring experienced professionals from taking staff jobs), and a reduction in the power of committees (which have historically been vital to the oversight process). Kamarck illustrates the decline, both relative and absolute, in Congressional Research Service manpower and financial resources, Congress’ disregarding of the Government Accountability Office’s “high-risk list” of failing federal agencies, and the ineffectiveness of agencies’ inspectors general.

Finally, after analyzing Congress’ numerous woes, Kamarck proposes a solution in the form of a Congressional Oversight Office that would be “staffed by implementation professionals who can gather the signals from all the other oversight organizations annually and in sync with the budget cycle.” Kamarck argues that such an office would be anticipatory and on constant “police-patrol,” rather than simply reacting to fire alarms. Such an office would be continuously overseeing the federal government, searching for areas of future waste, fraud or abuse, instead of simply addressing issues once they arise.

Whether it is realistic, given Congress’ current state, to hope such an agency will be created—much less granted the resources and manpower needed to be effective—is an open question, but Kamarck’s proposal should be taken seriously by anyone concerned with Congress’ abdication of its oversight role.

Why Process Matters in Congressional Appropriations

Image credit: Congressional Institute, http://conginst.org/

Image credit: Congressional Institute, http://conginst.org/

By C. Jarrett Dieterle

As past legislative sessions have come to a close amid threats of a government shutdown, we’re forced to wonder: what has gone so terribly wrong in the appropriations process? Professor Peter Hanson explores this question in his recent white paper for the Brookings Institution, “Restoring regular order in congressional appropriations.” In it, he investigates the extinction of the “regular order” method of appropriations and calls for the restoration of this time-honored process. 

For much of Congress’s history, discretionary spending was set by regular order, in which appropriations bills were debated and passed individually. This allowed the budget to be broken down into bite-sized pieces, encouraging legislators to exercise greater control over spending. Today, by contrast, Congress has taken to bundling appropriations bills into thousand-page omnibus packages that are rammed through at the end of legislative sessions—often in the face of a looming government shutdown. Lawmakers hardly have time to read these voluminous bills, let alone exercise oversight.

Unsurprisingly, an inferior process leads to inferior results. As Hanson and political scientists like Matthew Green and Daniel Burns have argued, regular order helps encourage debate among legislators and reduces the risk of “substandard legislation” being stuck into appropriations bills. Furthermore, as Yuval Levin has noted, breaking up the budget plays better to the innate strengths of Congress in that it allows individual lawmakers to exercise greater influence over discrete funding choices.

Hanson pins most of the blame for the collapse of regular order on the Senate, since its rules allow senators to engage in disruptive tactics like filibustering or attaching controversial amendments to bills to score political points. This leads Senate leadership to stifle debate by pushing “must-pass” omnibus bills under tight deadlines at the end of legislative sessions.

How can this breakdown in the process be rectified? Hanson proposes four fixes for the appropriations process: reforming the filibuster to allow a simple majority vote to end debate on spending bills; allowing bills to be considered concurrently by the House and Senate; restoring earmarks on a limited basis to help grease the skids for passing legislation; and shifting toward non-public deal-making to shield individual lawmakers from negative publicity.

While there’s room to debate the efficacy of these different proposals—such as whether restoring earmarks would really help pass more legislation—Hanson’s plea to restore congressional authority over the federal budget is timely. Given the well-documented diminution in power Congress has experienced vis-à-vis the Executive Branch in recent years, it’s time for our First Branch of government to reassert its leadership role.

Congress’s power of the purse is a good place to start—James Madison himself described it as “the most complete and effectual weapon” to be wielded by the people’s representatives. Yet even the most effectual weapon is useless when wielded incorrectly. Until Congress recognizes why process matters when it comes to appropriations, it will have trouble restoring its control over our government’s spending.

Six Ways to Curb the Executive Branch

Alexander Hamilton on the limited executive, Federalist 68. Credit: Library of Congress.

Alexander Hamilton on the limited executive, Federalist 68. Credit: Library of Congress.

By Kevin R. Kosar

The Founders intended Congress as the most powerful branch, making the laws that constrained the president, and passing laws that funded his plans—or didn’t. But over the past century, as the White House has accumulated power, Congress has been giving it away.

Today, with anxiety about Trump high among both Democrats and constitutional conservatives, there’s a fresh opportunity for Congress to resume its rightful place as the First Branch with some simple, yet powerful, actions. Here are six ways Congress can assert its authority and check President Trump from overreaching.

Read more at http://www.politico.com/agenda/story/2017/01/six-ways-congress-can-curb-a-runaway-president-000284

Open Data and Congressional Oversight

By Hudson Hollister

In January 2012, I resigned from my Capitol Hill job to start an organization that I called the Data Transparency Coalition. Now called the Data Coalition, we are the world’s only open data trade association.

We are entirely supported by contributions from our members: big, established companies like ExperianPwC, and IBM and surging startups like data.world and FiscalNote.

Our mission is both simple and ambitious: government information should be published as standardized, machine-readable data.

Our reasons? We have three. Open data delivers transparency for the public, enables better management within government, and makes compliance cheaper, through automation.

Our methods are old-school: persuade Congress to enact open data reforms and encourage agencies to embrace the transformation, usually in business wear. This is our policy agenda....

Read more at https://medium.com/@hudson.hollister_93912/open-data-in-the-age-of-trump-107e3b227ea7#.nhybf2q6l

ICYMI: Reasserting Congress in Regulatory Policy

Last week, National Affairs journal released a special report: "Unleashing Opportunity: Policy Reforms for an Accountable Administrative State." It includes a chapter on "Reasserting Congress In Regulatory Policy," which assess the current imbalance between the branches and offers proposals to empower Congress. The report and its individual charters are available for free at http://www.nationalaffairs.com/publications/page/regulation-policy-book

 

 

Can the House Return to Regular Order?

In The Hill, Don Wolfensberger writes:

In following the election of House Speakers in recent years, it is hard to overlook the common thread of their acceptance speeches: All vow to return to the regular order, restore the committee system, and give members greater latitude to participate in the legislative process. Party leaders are not above acknowledging the obvious: the House in recent years has been too leadership-driven, at the expense of member and committees prerogatives. 
Despite these opening day promises to return to regular lawmaking, the fabric soon unravels and the House again becomes entangled in the chaos of authorization logjams, policy-laden appropriations bills, Senate unresponsiveness to House initiatives, and lack of conference committees to resolve differences between the two bodies. Budget deadlines are missed, money bills wither on the vine, unpicked — it all inevitably leads to a last-minute crush to cram everything into unread, omnibus legislation as the express ticket out of town, one step ahead of the law (whatever might be in it). 

Read more at http://thehill.com/blogs/pundits-blog/lawmaker-news/313793-is-there-hope-for-the-house

Does Congress Want to Govern?

Over the past year, leading members of Congress have delivered some stirring mea culpas about the demise of the First Branch of Government.

Speaker Ryan’s “A Better Way” agenda declares: “The people granted Congress the power to write laws, raise revenues, and spend and borrow money on behalf of the United States. There is no power more consequential …Yet for decades, Congress has let this power atrophy — thereby depriving the people of their voice.” Similarly, Senator Mike Lee last year launched the Article I Project on the premise that, “the federal government is broken, and congressional weakness is to blame … Congress has handed many of its constitutional responsibilities to the Executive Branch.”

Congressional Republicans who sounded these alarms about executive overreach may well have had Barack Obama or Hillary Clinton in mind. But as Donald Trump prepares to assume office, these calls for congressional re-assertion have become increasingly bipartisan.

All of which prompts the question: How much will Congress let President Trump get away with? The answer? Probably more than they should. Congress has grown weak relative to the executive branch, and Speaker Ryan is right: legislators, themselves, are largely to blame....(Read more at Real Clear Policy)

What Is the Obamacare Repeal Resolution?

Was the Patient Protection Affordable Care Act repealed this week? What is all this talk about reconciliation and vote-a-rama?

The answers to these questions and more are in Molly Reynolds' post at https://www.brookings.edu/blog/fixgov/2017/01/04/first-step-toward-aca-repeal/

Reynolds is a fellow at Brookings, and an expert on legislative process and the budget. She supervised the most recent update (released this week!) to the Vital Statistics on Congress, a volume with incredible data and information on our national legislature. 

And as one last FYI---Reynolds and fellow Brookings scholar Philip Wallach partnered to create a nifty timeline on the grueling budget battles during the Obama administration: https://www.brookings.edu/research/the-fiscal-fights-of-the-obama-administration/

Do Term Limits for Committee Chairs Weaken Committees?

Photo credit: Appropriations.house.gov

Photo credit: Appropriations.house.gov

Yes, say professors Craig Volden and Alan Wiseman. They write in the January 4, 2017 Washington Post:

Beginning in the mid-1990s, Republicans limited their chair positions to three terms (six years). For the new Congress, that means new chairs on many subcommittees, as well as new leadership in committees from Appropriations to Energy and Commerce. These term limits were intended to bring fresh new ideas to stale lawmaking institutions. But our forthcoming research shows that term limits have a different impact as well: limiting the effectiveness of committee chairs....
Committee chairs in their first three terms are about four and a half times as effective as the average lawmaker. What is striking, however, is that those in their fourth through sixth terms (before term limits) were much more effective, averaging six times the lawmaking performance of a typical lawmaker. In other words, committee chairs are being replaced just as they hit their stride. Then the new chair must start the learning curve all over again.

Read more at https://www.washingtonpost.com/news/monkey-cage/wp/2017/01/04/how-term-limits-for-committee-chairs-make-congress-less-effective/

About That Trump Term-Limit Proposal

Source: Bill Watterson

by Rob Oldham

In the waning days of his campaign for president, Donald Trump stoked the anti-Washington sentiment that had drawn in so many of his original supporters. He promised to “drain the swamp” in Washington by throwing out the establishment, which was personified by Hillary Clinton and also many members of Congress. In mid-October, Trump came out in favor of a plan that would limit members of the House to six years in office and senators to 12 years. His campaign released the following statement:

Decades of failure in Washington, and decades of special interest dealing, must come to an end. We have to break the cycle of corruption, and we have to give new voices a chance to go into government service. The time for congressional term limits has arrived.

As a reform proposal, term limits are nothing new. Term limits were included in Newt Gingrich’s Contract With America, a list of campaign promises the Republicans used to win control of the House in 1994. As Speaker of the House, Gingrich tried to push through the term limits plan as a constitutional amendment, which requires two-thirds support of both chambers of Congress, and then must be ratified by three-fourths of state legislatures. Gingrich’s term limits plan received 224 votes in the House, a majority, but well short of the votes required to change the Constitution.

Shortly after the Gingrich amendment failed, the Supreme Court took away the states’ ability to term limit members, something that 23 states had done before 1995. In Term Limits Inc. v. Thornton, the court ruled that term limits passed by individual states were unconstitutional because they violated the qualifications for office standards in Article I by subjecting different members to different requirements. This ruling meant that any future term limits proposal would have to come through a constitutional amendment that would apply to all members.

The president has no formal role in the constitutional amending process aside from drumming up public support (which may not be difficult as 75 percent of Americans favor term limits). To institute his plan, Trump would need to rely on the support of congressional leaders willing to expend a large amount of political capital to push through term limits. (Florida Republican Ron DeSantis has an interesting idea on how to make term limits politically feasible.). Some high-profile leaders like Speaker Paul Ryan have voiced their support for a term limits amendment. Ryan said, “I've always believed that this should be something that you serve temporary, not for an entire lifetime.” Others, including Senate Majority Leader Mitch McConnell, have been less enthusiastic.

But before debating whether the Trump plan is possible, it is worth asking whether it is sound public policy. The general wisdom (captured by Speaker Ryan’s statement) is that of course term limits would be a good thing. Turnover in government hedges against legislative corruption and fulfills the nostalgic vision of “citizen legislators” that act in the best interest of their constituents and country rather than their own electoral ambition. Before Thornton, 15 states adopted congressional term limits in public referenda. These referenda typically garnered around 66 percent support from voters. There is already a two-term limit for the president via the Twenty-Second Amendment. This was instituted after Franklin D. Roosevelt was elected to the presidency in four straight elections. Is it not just as important to prevent a concentration of power in the legislative branch?

In a 1994 article, Dan Greenberg of the Heritage Foundation, a conservative think-tank, laid out the case for term limits. He argued that term limits would solve the problem of incumbency advantage, the systemic electoral advantages held by legislators running for reelection. These advantages might explain the dissonance between Congress’s high disapproval ratings and 90 percent reelection rates for incumbents. He also argued that it would increase the independence of members of Congress (special interest groups invest large sums of money in certain influential members) and put an end to congressional careerism, the phenomenon where members spend their entire lives in the D.C. bubble and lose touch with what life is like for the average American.

Greenberg also rebutted several common arguments made against term limits. One is that term limits would deprive Congress of some of its most experienced and effective members. Greenberg said that this fear is overstated as many incoming members would have already served in staff positions, and, moreover, the introduction of large numbers of less-experienced members could create an impetus to simplify the legislative process from its current form—another reform he views as necessary. Another is that less experienced members will cede more and more power to career bureaucrats in the administration and congressional staffers, a trend that is already underway without term limits. Greenberg said that this complaint misunderstands the relationships between Congress and staff (which is usually hierarchical and temporary) and Congress and the bureaucracy (which is based on a reward/punishment incentive structure). He sums up his views here:

Ultimately, critics who suggest that new Members will fall under the thrall of unelected Beltway insiders miss the point: term limits would create major changes in the way Congress works. Under term limits, Congress would attract talented candidates with demonstrated expertise and diverse life experience. Such candidates have little reason to seek election to Congress today, when it takes decades of incumbency to reach a position of legislative influence. Under term limits, citizen-legislators could exercise real policy influence for a few years and then return to private life.

The best place to look for evidence as to whether or not term limits have worked in practice is the 15 states that have implemented them (the Thornburg decision did not impact term limits for state legislators). Echoing some of the fears about unelected power that Greenberg addressed, Norm Ornstein of the American Enterprise Institute says that "[the] experience in states, including California, has been negative: assembly members look to run for the state senate or Congress, Senators look for congressional seats, or lawmakers look out for cushy jobs in the private sector afterward, thus giving more power to the permanent staff.”

Empirical research of states with term limits has found some surprising results. States with strict term limits tend to increase government spending. They also see decreases in the number of bipartisan sponsored bills, and a concentration in power in the upper chambers of the legislatures as members lengthen their careers by moving into higher office. Another study showed that the increased turnover from term limits did not lead to an increase in the number of female legislators being elected relative to the U.S. House and states without term limits.

A comprehensive look at the rise of term limited legislators in the early- to mid-1990s found that term limits did not influence the demographic or professional composition of the legislatures (undercutting the citizen legislator argument). They also failed to have an ideological effect, although it is unclear as to whether greater levels of compromise and bipartisanship were goals of term limit proponents. The study did find that term-limited members were more likely to put state needs ahead of district needs and devote attention to issues of conscience rather than securing state projects for constituents. Although elite supporters of term limits would expect term limited legislators to behave this way (and likely laud them for doing so), voters would probably be unhappy to see their elected representatives act against their interests.

Overall, it seems that term limits might bring some modest change to Congress, even if that comes by a further weakening of elected officials and empowerment of unelected civil servants. Voters might want to think very hard before deciding if these are the types of changes they want though. Most voters already their think highly of their member of Congress (although that number is sliding) and term limits do not give members an incentive to better represent or serve constituents.

Much of the disconnection between Americans’ desire for term limits and our likely distaste for what term limits would bring is rooted in Trump’s exaggeration of Washington corruption. He greatly overstates the extent to which lobbyists and special interests play a decisive factor in how members behave. More often than not, legislators vote how the majority of their constituents want them to, not how wealthy donors steer them. Now there is room for debate whether factors such as redistricting, partisan primaries, disenfranchisement, and voter apathy have distorted the cues members of Congress should be receiving from the electorate. But with the system we have, members are rewarding those who show up at the polls, a result in line with what one would expect from democracy. If what we care about is voters being represented, then Sen. McConnell said it best: “We already have term limits. They are called elections.”