With congressional partisanship at record highs and congressional approval ratings at record lows, the First Branch should consider reform. Two recent white papers (one analyzing the House, the other the Senate) cast light on the nature of the problem. Together they suggest that much power has shifted to the chambers’ leaders, and the legislature has shifted from a “transformative legislature,” which generates and develops legislation, towards an “arena,” which functions to display political clashes or position-taking on externally generated legislation.
Congressional staff and policy wonks have an obvious interest in these papers, because they most immediately bear the burden of the implications.
So too do the rest of us. Once we understand how the nature of Congress has shifted, we can understand why it does what it does, and see a way forward. And, ironically, that way appears to be by going backward---moving away from a hierarchical, leadership-dominated model of operating the chambers to one which disperses more power to committees.
The American electorate agrees on very little, except its frustration with congressional dysfunction. According to an April 2016 study by the non-profit Congressional Institute, Americans approved of Congress at an appallingly low 12 percent. Voters actually have a higher disapproval than approval of their own specific representative. Voters are particularly furious, according to the study, because of lack of accountability and ineffectiveness. According to a CNN/ORC poll, 65 percent of Americans believe the most recent Congress was the worst in their lifetime.
By other metrics, Congress is similarly failing in its role. According to a Brookings Institution study, Congress has, over the past few decades, steadily passed fewer and fewer bills, a fact the media repeats frequently. Congress faces a greater partisan divide than ever, with, according to National Journal rankings, zero congressional Republicans more liberal than Democrats, and zero Democrats more conservative than Republicans. Many factors are at play, but the analytical big picture is that Congress has transition from a “transformative legislature” to an “arena.”
Arena Versus Transformative Legislature
Democratic legislative bodies, according to the late political scientist Nelson Polsby, can be divided between “arenas,” like the British Parliament, and “transformative legislatures,” like (at least for most of its history) the United States Congress. Arenas mostly are forums for debate and discussion—a means for an external government to gauge the variety of public sentiment on a bill—rather than for bill development or passing legislation. Transformative legislatures, by contrast, actually create legislation through internal processes; their actions have tangible and practical consequences on how policy is developed, rather than simply revealing public opinion. Given the prominence of Congress in the Constitution as the font of "all legislative powers," a “transformative legislature” is the proper form for it to take. Moreover, because the United States lacks a British-style government that exists external to Congress and drafts most legislation, if Congress fails to generate laws, the governance system falls out of balance---presidents and executive branch agencies will increasing legislate on their own.
A Deinstitutionalizing House
Institutionalization was defined by Polsby in 1968 by three factors: (1) increasing boundaries separating the House from the outside world, (2) greater complexity and specialization, and (3) universal, automatic rules to govern its behavior. The steady institutionalization, leading up to the 1960s and characterized by specialized, career politicians, a hierarchy of seniority and established structure, reinforced Congress’ role as a “transformative legislature.” However, according to Jeffrey A. Jenkins and Charles Stewart III in “The Deinstitutionalization (?) of the House of Representatives: Reflections on Nelson Polsby’s ‘Institutionalization of the House of Representatives’ at Fifty,” these institutionalizing trends that have made Congress a “transformative legislature” have, to a large extent, reversed themselves.
Jenkins and Stewart first analyze Polsby’s claims regarding declining House turnover, which he saw as representative of increased boundaries to entry. They show that, although Polsby was correct that House turnover declined leading up to the publishing of “Institutionalization” in the 1960’s, it plateaued in succeeding decades and has actually risen since 2010. Similarly, they demonstrate that the increase in the mean length of service, which grew rapidly in the 1940’s and 1950’s, stagnated after the 1960’s and actually fell 10 percent in the past decade. Thus, they conclude that boundaries defining the House as a distinct institution have weakened.
They go on to illustrate a commensurate deinstitutionalization with respect to the House Speakership after Polsby wrote. Jenkins and Stewart’s data demonstrate that between 1899-1971, 83 percent of House Speakers had served longer than 20 years in the House and none had served less than 15. Since 1971, however, only 33 percent have served longer than 20 years, and 22 percent served fewer than 15. Furthermore, they argue that the trend of Speakers living longer after they leave the office of Speaker of the House demonstrates that the Speakership is no longer the culmination of a long career that it was when the House was more institutionalized.
Waxing Leadership and Waning Committees
Committee growth in the early and middle of the 20th century was one primary facet of the institutionalization of the House. By the time Polsby wrote, committees had gained power, independent sovereignty and technical, specialized rules. However, under recent policies, especially those championed by Newt Gingrich in the 1990’s, committees have seen their independent power erode.
Committee chairmanships during mid-century were almost exclusively determined by seniority, demonstrating the rule-based workings of an institutionalized chamber. The number of committee chairmanships that did not go to the most senior member of a committee declined, reaching 3.2 percent in the 1950’s and 1.1 percent in the 1960’s. Since then, however, this number has rapidly increased. In the 1970’s, partially due to Democrats’ replacement of conservative southern committee chairs, committee chairmanships not awarded by seniority jumped to above 15 percent. They proceeded to reach 32.4 percent in the 2000’s decade and an astonishing 63.3 percent in the current decade.
Figure 1. Violations of Committee Chair Seniority, 1861-2013
Seniority rule in committees, which suggested institutionalization, was especially undermined during the Gingrich-era consolidation of power in political parties. As Gingrich strengthened political parties within the House, committees lost their independence and reliance on rules. Party discretion increasingly dominated who became committee chairmen, thus shifting loyalty away from one’s committee towards one’s party leader.
Even as committees declined in prestige, the number of party committees and whips rapidly increased. Although overall House expenditures and staff began stagnating in the 1980’s and then declining since the 1990s, party leadership has been largely spared these cuts, while committees have born the brunt of them. Since 1993, House personal staff declined 0.9 percent, and committee staff declined 38.7 percent, but party leadership staff increased 53.0 percent, demonstrating a shift in the House centers of power to external political parties and away from House institutions.
Figure 2. House Personnel Employed, 1946-2010
How has this change altered the functioning of the House? The former power of committees created incentives to concentrate on one’s committee work and hope for advancement to senior committee roles through established, institutional roles. With seniority merely one of many qualifications, and chairmanship left to party leadership’s discretion, Representatives must remain loyal to party leadership if they are to advance or accomplish their goals. Thus, parties, and their inherent focus on politics, have replaced the former House focus on policymaking.
Majority Leader Rules: The Senate and Amendments
Like House leadership, Senate leadership has recently gained increasing power, as detailed in another new paper by James Wallner, “Unprecedented: Informal Rules and Leader Power in the United States Senate.” The Senate majority leader has used Senate precedent regarding amendments to dominate the deliberation process. Although these precedential rules arose largely to increase deliberation and orderly functioning of the Senate, Senate leadership currently uses them to prevent amendments that they oppose from being brought to the floor.
Precedent, rather than constitutional mandate or self-imposed rules, governs much of Senate procedure. Like judicial decisions, precedents fill gaps in official Senate rules and can be used to unofficially alter rules when circumstances reveal flaws or defects. Created by the Chair’s rulings on points of order, a full-Senate vote to appeal points of order or “responses by the Presiding Officer to Parliamentary inquiries,” precedents, according to Wallner, have established such features of Senate deliberation as the majority leader’s “right of first recognition,” which gives him or her the first opportunity to propose amendments.
Rooted in House of Commons tradition, the Senate’s first standing rules, according to Wallner’s analysis, rarely sacrificed the benefits of greater deliberation to those of order. The Senate’s rule, which prohibited 3rd degree amendments (amendments to amendments to an amendment) and the precedent that established that only two amendments could be pending at once, were exceptions. These rules created what became known as an “amendment filing tree,” a term that describes the diagram of possible amendments, insertions, deletions, substitutions, amendments to amendments, etc.
At crucial points, primarily driven by changing precedent, the “amendment filing tree,” representing the degree and complexity of possible amendments, has expanded. The amendment tree’s expansion over the years is visually demonstrated by a comparison of Wallner’s following two diagrams. Each new addition to the amendment tree arose from a desire to give rank-and-file senators a greater opportunity to amend proposed legislation.
Figure 3. Early Senate Amendment Tree vs. More Recent Senate Amendment Tree
Curiously, despite this expansion in potential for amendments, the amendment process has constricted. The number of amendments offered as a percentage of amendments actually filed for deliberation and vote has dramatically declined since 1993 from around 70 percent to around 20 percent.
The majority leader now uses these precedents, contrary to their original purpose, as a means of efficiently gauging Senate opinion. The majority leader can “fill up the amendment tree” by simply adding meaningless, “blocker” amendments that prevent further amendments to the bill. According to Wallner’s data, in the three Congresses, from 1989 to 1995, the majority leader only used this tactic 3 times. However, in the last three Congresses, the majority leader used it 74 times. By filling up the amendment tree, the majority leader has prevented unwanted amendments from being voted on and exerted greater control on overall deliberation.
The majority leader can also threaten to fill up the amendment tree, precluding a vote on the amendment, unless senators accept a 60-vote threshold for their amendment’s passage---which ensures it will fail in a divided Senate. As the below chart from Wallner’s paper demonstrates, the majority leader has utilized this threat much more frequently during recent Congresses. Why? According to a study by Anthony J. Madonna and Kevin R. Kosar, the majority leader restricts show-boating and divisive amendments to get bills passed.
Figure 4. The Use of Unanimous Consent Agreements to Set 60-Vote Thresholds for Amendments, 2005-2015
According to Wallner, senators could, by routinely offering 3rd degree amendments, as Ted Cruz did in July 2015, and appealing to the Chair, generate a change in Senate precedent. Rank-and-file senators could, thus, permanently alter the balance of power between majority and minority and between rank-and-file senators and leadership. But they do not do this. Amendment-wielding Senators tolerate the higher threshold because losing the vote still is a win. By taking a position, they improve (or so they believe) their re-election odds. When senators do this, they also tend to bemoan congressional politics for thwarting their proposals---which further depresses public opinion.
The Shift to an Arena, Congressional Ineffectiveness, and Public Discontent
Congress as a whole is morphing from a “transformative legislature” into an “arena.” As these white papers indicate, the House is deinstitutionalizing, and the Senate is thwarting more amendments.
These findings fit with the picture of a Congress that operates more chaotically (the House) and devotes more of its precious time to symbolic actions designed to garner media and public attention (both chambers). The atomization of legislators has elicited an effort to impose control form the top-down. Thus, agenda-setting and policy-making power has flowed upward. As a consequence, rank-and-file congressmen and minority congressmen increasingly feel and behave as dispose outsiders who want to fight the power. Which makes getting things done even more challenging.
Rising voter discontent is fueled by Congress’ shift towards an “arena.” Voters overwhelmingly believe that congressional ineffectiveness is due to Congressmen’s inability to work together, rather than national ideological differences.
The public also laments the lack of congressional accountability for its failure to get things done, and is frustrated by its inscrutability. The arcane rules by which the Senate majority manipulates the amendment process are the norm for the legislative process, not the exception.
Furthermore, American voters are neither used to, nor desirous of, an arena-type legislature in the model of the United Kingdom. Voters wish to see their representatives actually work to develop, debate and pass legislation, rather than merely display their thoughts on legislation developed by outside interest groups.
A Path Forward: Committee Governance
How can Congress revert itself to a transformative legislature? The answer is to reinvigorate committees and subcommittees as power centers. There are various ways to do this. Here are three reforms that could advance this objective.
First, committee chairmen should be picked through seniority, instead of on the basis of their fund-raising prowess or loyalty to party leadership. A mandated seniority rule for committee chairmanships would enable chairmen to serve longer terms and encourage them to take greater responsibility for developing working relationships with their fellow committee members and the policy they produce.
Second, the number of committees and subcommittees should be increased, which would create more policy-influential positions for individual legislators. Giving more legislators more policy sway would reduce their alienation and give them a skin in the game of legislating. Their individual success as a legislator would be tied to their policy-making efforts.
Third, bills reported by committees should be called up for a vote as a matter of course. This would put an end to the habit of committees producing messaging bills, which aim to grab media attention but are never believed to be enacted into law. It also would reduce the resentment among committee members, who do not like seeing their hard-bargained compromises not voted upon.
In sum, a Congress of 535 individual operators clearly does not work well. Nor does a legislature that is directed by a few top leaders. The incentives of individual legislatures can be channeled to the collective good of the First Branch through the medium of committees and their subcommittees. As Woodrow Wilson long ago observed, “it is not far from the truth to say that Congress in session is Congress on public exhibition, whilst Congress in its committee rooms is Congress at work.”