By Philip Wallach
Congress as an institution faces a critical juncture. Continuing on its current path will make it an extraneous appendage, whose presence is tolerated only grudgingly, as a nod to a previous chapter in our nation’s history and the difficulty of resetting institutions entirely. Some commentators embrace this possibility, arguing that the country is best served by welcoming this transformation and doing what we can to clarify roles under the emerging executive-centered system.
Most people who think about Congress’s future instinctively reject such thinking, though, and instead turn to the question of what could make the institution work better. Too often, they do so without a very clear idea of what “better” really means. In my National Affairs article, “Congress Indispensable,” I try to articulate an ideal worth aspiring to. In my last LegBranch.com post, I went on to look at the many diagnoses offered for Congress’s current problems, without any claim to have discerned which were correct. In this post, I similarly lay out what I take to be the full range of reform options generally discussed without trying to evaluate them. Many of these solutions are presented as being implied by particular diagnoses, but not always. As John Kingdon’s work teaches, sometimes solutions go looking for problems rather than the other way around. Where the connections are clear to me, I try to spell them out.
1. Major Constitutional reforms
Nothing says that the United States must hold fast to our fairly peculiar form of government, and some would-be reformers are convinced that nothing short of root-and-branch change can put our country’s government on a sound basis and restore its legitimacy. So, for example, we might just move to one of several varieties of a parliamentary system. Or we could abolish the Senate, whose blatantly undemocratic privileging of less populous states offends many people’s basic sense of justice.
It is hard to imagine changes of this foundational nature being passed through the Constitution’s onerous Article V amendment process, but other Constitutional changes are at least conceivable. Congress has, at various times, come close to passing a balanced budget amendment, which would significantly change its manner of handling fiscal issues. In 1994, Republicans’ Contract with America proposed term limits for members of Congress, and the idea keeps coming back. Some people wish to repeal the 17th Amendment providing for the direct election of Senators, though it is unclear if many states would revert to having their legislatures choose U.S. Senators or simply keep direct election. Our campaign finance system might be significantly altered by amendment; one notable example is Bernie Sanders’s Saving American Democracy Amendment, which would reverse the Supreme Court’s decision in Citizens United.
2. Change the rules of political contestation
Many basic parameters of political contestation could be changed without amending the Constitution. Federal law could be changed to allow states to have multi-member U.S. House districts filled by ranked-choice voting. Primaries could be restructured, or (like California) general elections can be made “top two.” Though they might encounter constitutional difficulties, there have been many attempts to curtail partisan gerrymandering, drive money out of politics by overhauling the campaign finance system, promote higher levels of voter participation, or implement open rather than partisan primaries—sometimes all at once. Or the rules of contesting policies could be changed, for instance by attacking the revolving door or otherwise trying to diminish the role of lobbyists. These are preferred prescriptions for those who believe special interests have a stranglehold on congressional politics at present.
3. Change the role of political parties
Those who see the central cause of dysfunction in our political parties offer a variety of suggestions meant to make them more constructive players. One could rebalance power within parties from Washington to the states by loosening fundraising restrictions on state parties. Alternatively, one could seek to combat “fragmentation” within parties by making it easier to channel funds directly to the parties, relative to independent groups or members. Or perhaps we need to take steps to more fundamentally reshape the party mandate by weakening the many features of election law that support our current duopoly. Then there are those who believe that one party simply needs to “die” in order for our politics to right itself—though it’s often not exactly clear what that would mean, short of hoping that certain political views would simply disappear from American politics.
4. Make it easier to get things done
Perhaps the most common colloquial condemnation of Congress is that it just can’t get anything done anymore, and several reforms would try to solve that problem very directly. At the most basic level, people think the profusion of veto points in Congress leaves us with a “vetocracy,” in which interests are able to stop sensible action that would serve the public good. The solution is to get rid of some of those veto points. Most such discussions tend to suggest getting rid of the Senate filibuster—one of our president’s favorite reform suggestions. Or the filibuster could be retained but reformed, perhaps to require actual extended speech on the floor in order to be sustained. One could alternatively focus on Senatorial holds, or think about mechanisms by which more bills could be given automatic up-or-down votes, so that they could not be bottled up in committee or suppressed by leadership.
5. Fix the congressional budget process
Arguably a subset of making it easier for Congress to get things done, one of the most studied possibilities for congressional reform is overhauling the budget process. Right now, budgeting and appropriating take up a huge portion of legislators’ energies without actually achieving effective control over fiscal policy, which largely runs on autopilot. Meanwhile, the system as it currently exists leads to regular shutdowns and debt ceiling confrontations which potentially threaten the nation’s economic well-being. Many reformers think that without taking on this particular aspect of the contemporary Congress’s dysfunction, no reform is likely to get very far.
6. Change Congress’s internal organization
We now turn to a set of prescriptions that would be likely to fly somewhat under the radar of most Americans. Choices about the operating procedures of the House and the Senate strike many people as arcane and ultimately trivial, but they have historically been important in allowing Congress to reorient itself to new governing conditions. Some of these ideas are obviously at cross-purposes.
- Strengthen congressional committees, perhaps through a renewed commitment to observe regular order, reorganization of often overlapping jurisdictions, lifting of term limits for chairs, or some novelty such as random assignment;
- Strengthen individual members, perhaps through the increased use of open rules, in order to counteract a leadership-centric Congress that deprives rank-and-file members of a meaningful role in crafting legislation;
- Strengthen leaders, perhaps through bringing back earmarks (an idea back in the news of late), in order to address a “crisis of followership”;
- Self-police more aggressively. Although this might seem like mere “housekeeping,” Josh Chafetz argues in his excellent new book, Congress’s Constitution, that legislators can set up internal standards so as “to foster public trust and thereby enhance its own power.” This might include taking measures to root out corruption by members, such as by empowering ethics committees, or by using internal rules to combat the power of money in politics.
Notably, Representatives Dan Lipinski (D-IL) and Darin LaHood (R-IL) have introduced a resolution to create a Joint Committee on the Organization of Congress, which now boasts a total of 64 cosponsors drawn from the ranks of both parties. Similar committees played vital roles in the congressional reforms of the 1940s and 1970s, providing an important forum for institutional thinking and a return to Congress’s ideals.
7. Build legislative branch capacity
Most diagnoses of legislative dysfunction focus on the factors that leave Congress collectively unwilling to shoulder its rightful constitutional role, but there are many reasons to also worry about its ability to do so even when members are willing. Reforms to strengthen its institutional capacity thus provide a complement to many others. Of course, LegBranch.com being the website of the Legislative Branch Capacity Working Group, we see such reforms as especially important—even if the idea of investing taxpayer funds in Congress itself tends to poll badly. There are a great many ways we could do this.
- Expand congressional staff (especially for committees, or dedicated to oversight) or pay them better so as to better attract and retain experienced staff; one intriguing way to bring in talented young lawyers would be to create a congressional clerkship program;
- Similarly, one could increase members’ allowances and give them more flexibility in how they can spend them, allowing them to experiment with less traditional forms of support staff (or just pay more for a traditional staff);
- Improve working conditions for staff by strengthening institutional protections for them;
- Provide institutional resources (funds, office space, staff) for policy-centered bipartisan caucuses;
- Strengthen congressional support agencies, or perhaps introduce a new one such as a Congressional Regulation Office or bring back an old one, the Office of Technology Assessment;
- Congress could improve its own technological capabilities, potentially enabling it to use its human resources more efficiently to master public policy issues.
8. Make it harder to circumvent Congress
For those who diagnose legislative marginalization (sometimes self-imposed) as a major cause of congressional dysfunction, reforms must bring power and responsibility back to the first branch. Often this means clawing back duties that have migrated (or been delegated) to the executive branch. In recent years, the political energy behind such reforms has mostly come from conservatives who chafed at what they saw as Obama administration overreach. For obvious reasons, though, the current political moment might create an opportunity for a more politically diverse coalition focused on cabining executive power. Some reforms currently receiving attention:
- The Regulations from the Executive in Need of Scrutiny (REINS) Act, which passed the House, and would force all major regulatory decisions to receive up-or-down votes in Congress, and has been a topic of much discussion throughout the 2010s;
- The Separation of Powers Restoration Act of 2017, which would effectively end the Chevron deference courts give to executive branch agencies and thereby try to make Congress’s own statutory drafting choices more consequential;
- Representative Warren Davidson’s (R-OH) Article I Restoration Resolution, which would require congressional committees to scrutinize all of the laws under their jurisdiction in pursuit of excessive executive branch discretion;
- And Cathy McMorris Rodgers’s (R-WA) Unauthorized Spending Accountability Act of 2017, which would put programs operating without up-to-date congressional authorizations on a default path of sharp budget cuts.
- Reforming various budgetary practices that have eroded Congress’s power of the purse, including the predominance of automatic spending.
When taken all together, there is clearly a vast arsenal of reforms that might be used to cure Congress. Some might be worse than the disease, and no doubt most would have unintended consequences; one can argue that many of today’s dysfunctions are the direct results of yesterday’s remedies. But if Congress is content to travel a gentle downward glide path to oblivion, it certainly won’t be for lack of available ideas to chart a different course.
Philip Wallach is a senior fellow in governance at the R Street Institute.