Reform efforts

Congress: Difficult by design

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(Editor’s note: This article originally appeared in National Review on September 13, 2018.)

By Philip A. Wallach

Daniel Patrick Moynihan once remarked that “the United States is the one nation in the world with a real legislature.” The senator from New York was boasting of our system, but many would take his statement as an indictment. The independence of Congress in our separation of powers makes our elected representatives uniquely able to frustrate the plans of our executive branch and seemingly ensures a parochialism more easily contained in other systems of government. If a legislature is conceived as an organ for “efficiently solving problems,” these are firing offenses. Given how many people conceive of government in these terms today, it is not surprising that we are experiencing a boomlet in articles that urge the scrapping of Congress as we have known it. Indeed, the glaring defects of our current Congress make the case at least superficially attractive.

As with so many of America’s unusual features, however, the distinctive character of our Congress needs to be understood on its own terms. Congress is an embodiment of America’s unmatched commitment to pluralism. As such, it deserves to be mended rather than ended. Efforts to reform Congress will be fraught and messy, but in the past they have succeeded in spite of widespread skepticism.

The same cannot be said for attempts to effect wholesale constitutional change. Since the late 19th century, a parade of writers and (less frequently) politicians have insisted that only root-and-branch replacement of an obsolete governing document could equip America to handle the challenges of the modern, industrial, globalized world. Their intellectual outputs have sometimes been impressive but have almost never produced actual constitutional change. (Some reformers’ involvement in the push for the 17th Amendment is an arguable exception.) Mostly, the reformers have been driven by a horror at the inefficiency of American government, and, mostly, the cure they have sought is a parliamentary system in which the legislature and executive are fused and the governing party is assured control of the agenda.

The most famous expositor of this position was Professor Woodrow Wilson, whose Congressional Government (1885) was the culmination of years of criticism that he began publishing as a Princeton undergraduate. Wilson believed in “the principle of ministerial responsibility,” in which a fully responsible cabinet government could push forward an agenda of its choosing, subject only to the continued consent of the legislature, which would have the power to force the government’s resignation by rejecting its program at any time.

Wilson was hardly alone in his judgment. The Gilded Age Congress inspired disgust in many of his contemporaries, including some of the body’s own leading members. In 1881, responding to a widespread sense of frustration with partisan deadlock and congressional inaction, the Senate appointed a select committee to consider a bill that would have allowed the leading cabinet secretaries to hold seats in the House of Representatives and obliged those secretaries to report weekly to both houses of Congress. The eight-member committee, chaired by George H. Pendleton (D., Ohio) and divided evenly between Democrats and Republicans, unanimously recommended the bill as an appropriate first step in moving America toward the parliamentary best practices of its European peers. It went nowhere.

However tempting, it’s simply wrong to assume that our constitutional system’s critics must have been radicals at heart. In many respects, Wilson himself was a rock-ribbed conservative. Many champions of change have professed an essentially con­servative motivation. For example, William Y. Elliott, a Harvard political scientist who put forth a book-length plan for a new constitution in 1935, said that he feared “an unworkable legislative system of checks and balances will be superseded in times of crisis by executive authority more and more Caesarian in character.” In other words, a failure to remake our own system would open the door to Communism or Fascism. In 1942, a similar rationale animated no less a conservative icon than Henry Hazlitt to map out a move to a parliamentary system in a book he reissued after Watergate.

In various ways, today’s critics often lay claim to a similar conservative impulse, asserting that if the system is not reformed to allow it to better bend in the democratic wind, it will end up broken to pieces. Vox’s Matthew Yglesias channels the comparative research of Juan Linz, who studied the coup-prone presidentialism of Latin America, to say that our democracy itself is in peril if we fail to adapt. Lee Drutman of New America argues that if we fail to adopt a multiparty system, we will be doomed to see fringe elements capturing one of our two major parties again and again. In his view, figures such as Donald Trump are properly co-opted and marginalized as minor-party leaders in proportional-representation systems. At worst they can become only junior partners in a coalition government, whereas in our system they can hijack a major party with the support of only a small, angry minority.

Fear of an actual regime collapse (of the sort that ends with the generals in charge) seem rather overblown. This isn’t because America’s constitutional system is incapable of such a collapse, however, but rather because the actors operating within it are capable of incremental policy evolution instead of pure stagnation or wild lurching. If the constitutionally prescribed path of congressional legislation is blocked, the president and executive branch find ways to circumvent it — a lesson made clear by the second Obama administration. If the president goes too far or moves too fast in trying to change the direction of policy, entrenched bureaucrats, courts, the foreign-policy establishment, and Congress will box him in — a lesson that many observers of the Trump administration recognize by now.

By no means is this a triumphant portrait; Ross Douthat calls it “constitutional decadence.” This system yields only a pale shadow of the separation of powers’ intended virtues while partaking fully of its disadvantages for efficient government. But if this diagnosis is correct, the chances of mustering the confidence and unity necessary for a full-scale overhaul seem scant indeed.

That prospect of drawn-out mediocrity has led some would-be reformers to lean into presidentialism as much as possible without having to seek a complete constitutional overhaul. Two leading scholars of the presidency, William Howell and Terry Moe, neither of whom is a partisan thinker, offer a polemical argument to this effect in Relic(2016). If we follow our reason rather than a sense of nostalgia for a simpler time, they write, we should seek to continue the progressives’ project of government re­form by marginalizing Congress, which is properly regarded as a body of “extraordinarily sophisticated parochialism.” To do so would create room for more rational, coherent governance as well as enhance democratic accountability through presidential elections that are more clearly decisive. A single, short constitutional amendment could revolutionize the system by endowing the president with unlimited power to propose legislation and receive quick up-or-down votes from Congress, in the manner of the president’s Trade Promotion Authority (TPA). (Under their amendment, the president’s proposals would become law by default in the face of congressional inaction.)

They contend that a supercharged president would pursue the national interest far better than the factious Congress can. What TPA did for trade, Howell and Moe’s fast-track proposal power would do for budgets, foreign policy, energy — everything. Their expectation is that smaller deficits, wiser diplomacy, a sensible climate policy, and a happier American people would emerge.

Of course, given the strength of the recent cross-partisan push to repoliticize trade, Howell and Moe’s lionization of TPA’s ability to transcend petty politics is ironically timed. When governing elites suppress political dissent on an issue, that dissent is likely to explode back onto the scene in unpredictable ways. Multiparty proportional-representation systems or no, democratic deficits in Europe have come home to roost, and our own populist moment ought to be understood in the same light. Critics of our system rail against “Congress” as a metonym for “an unruly, disagreeable democratic electorate”; as armchair rulers, they would prefer to banish from view the problems posed by our divergent aims and values, the better to get down to the complicated work of social optimization.

In reality, however, a country of 325 million citizens is necessarily a place full of political conflicts, and we can only choose between trying to suppress them and letting them play out in plain view. For all its inability to achieve efficiency, Congress is admirably suited to the latter choice, which is clearly the more sustainable one. A friendly critic of Hazlitt’s 1942 proposal noted that the parliamentary system “demands, to a far greater degree than our Congressional system, a sacrifice of the initiative, independence and individuality of the ordinary legislative member. The M.P. must merge himself with his party; the Congressman may stand alone.” In creating that possibility, the Framers created a political role in which ambition was put in service of representing parochial concerns. This was not an oversight but a purposeful and central feature of the system.

As James Burnham explained in his Congress and the American Tradition (1959), Congress is the institution onto which the Framers inscribed their basic skepticism of ultimate solutions. It ensures a diffusion of power that tracks the diffusion of the population over its vast expanse (in the House) and the authority reserved to the states (in the Senate, a feature that particularly enrages democratic purists today). Because of the Senate’s staggered elections, it ensures that transient majorities cannot simply have their way. This design is not intended to ensure that we end up with better policies. Instead, Congress is the beating heart of representative government, and Burnham says its cacophonous multiplicity is the only way “the irreducible variety of the people’s interests, activities and aspirations [can] find political expression.”

This image is an appealing one for our diversity-revering age, but its critics say that the rise of polarization has made it a mirage. Our current Congress seems to contain not multitudes but two teams aiming at each other’s throats. Roll-call votes seem to show a greater separation between the parties than ever before. What little policymaking Congress does is tightly controlled by majority-party leaders’ offices. Issues that do not fit into the majority party’s national electoral pitch are scrupulously ignored. For these reasons, highfalutin talk of “multiplicity given voice” rings hollow.

These complaints are all fair, but it is a non sequitur to leap to a call for constitutional reform. Congress has not always been this way, and plenty of its own members are fed up with it today. We should therefore embrace rule changes that reduce the leaders’ roles, give members on committees a real chance to forge coalitions of convenience, and take the lid off of intraparty fights over defining issues such as entitlement spending and immigration. We must fight constitutional decadence by finding ways to put politics where it belongs — in the first branch.

 Philip A. Wallach is a senior fellow of governance at the R Street Institute.

Eliminating the Motion to Vacate is a bad idea

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By Joshua C. Huder

One thing I really don't understand about recent reform proposals: Eliminating or significantly tailoring the motion to vacate. This very rare motion has received more attention recently due to its role in John Boehner’s ouster. The motion itself is straightforward. It’s the equivalent of voting the Speaker out of office. The motion to vacate can be offered by resolution as a privileged matter, forcing a vote on whether to declare the chair vacant, then instigating a new speaker election.

It has hung over the head of the last two Republican speakers, prompting a bipartisan group of members from the Problem Solvers Caucus to propose nixing it entirely. This is a bad idea for a lot of reasons.

First, it has a myriad of unintended consequences. For example, members would have no ability to get rid of bad speakers. There are legitimate reasons to vacate the chair. For example, had there been no privileged motion to vacate, Speaker Wright (D-TX), who ultimately resigned amid ethics violations, could have stayed against the wishes of the House. Other means of checking speakers are available, but if a stubborn speaker refuses to leave office, there’s no guarantee they could be removed from their position. The motion to vacate is a fundamental check on their authority. It’s really the only way rank-and-file members are guaranteed the right to debate the most important office in the chamber. Just out of sheer caution, the motion should be kept to check cases of particularly egregious behavior.

Second, eliminating the motion would stifle debate and majority will. The motion is simply a way to instigate debate and does not guarantee a speaker’s removal. It’s important to remember John Boehner resigned voluntarily. He faced opposition from a small minority of his party. Had the motion to vacate been put to a vote, a majority of the House would have voted to keep him in office. This process of debate and securing a majority vote is in line with every democratic principle of the Constitution and the House. Speaker Joe Cannon, the only speaker to face an actual vote to vacate, said in a speech immediately before the vote that to deny a House majority from choosing their speaker “is to make impossible the reflection of the wishes of the people,” and that, “under the Constitution, it is a question of the highest privilege for an actual majority of the House at any time to choose a new Speaker” (6 Cannon §35). Undercutting the principles of the House to protect leaders from politically damaging votes is bad process. It’s akin to elevating political interests over democratic values.

That brings us to the most glaring problem with this proposal: It will fix nothing. Members seeking new leadership is not an institutional problem that can be fixed procedurally. Right now, it is a Republican problem. The party has vast disagreements on some fundamental policy and strategic issues. Removing the motion to vacate won't solve any of those issues. Handcuffing all future majorities because a party, at a moment in history, disagreed about its leadership is incredibly shortsighted. This is not the first time a majority party has split on leadership and it will not be the last.

If reformers want to democratize the House, enable robust debate, and decentralize power, they should rethink promoting this reform that undermines debate, prevents democratic decision making, and protects speakers’ power. It cuts against the thrust of the entire reform movement.

Joshua C. Huder, Ph.D., is a senior fellow at the Government Affairs Institute at Georgetown University.

Congressional reform is way overdue

  Source:  Gallup.com

Source: Gallup.com

By Kevin R. Kosar

President Donald J. Trump’s recent Helsinki trip was an awful spectacle. In short order, he managed to antagonize the allies we need to maintain European stability and balance against Russian ambitions. Trump’s declaration that he believed Vladimir Putin -- not America’s intelligence agencies -- regarding Russian election meddling drew scathing condemnation from Democrats and Republicans alike.

The Helsinki debacle was  the latest in a series of foreign policy blunders, which began not long after Trump assumed office. The President insulted the prime minister of Australia, then the president of Mexico, before annoying Canada’s leadership by insisting that Canada had shafted America in trade deals. Trump pulled out of the Trans-Pacific Partnership and has demanded the renegotiation of the North American Free Trade Agreement.

The Senate recently voted to condemn the President’s offer to allow Russian security agents to interview former U.S. diplomats. Otherwise, Congress has done little to reign Trump in as he shreds the nation’s valuable alliances with foreign powers.

Critics often are quick to blame congressional passivity on partisanship. Many Republicans certainly are gun shy about attacking the de facto leader of their party. But congressional indulgence of the executive is not an aberration of the Trump presidency. Legislators have both grown the executive branch and permitted executives to act without authorization and with little fear of consequences for a century.

Congressional torpor is a problem for our separation of powers system, which was designed to prevent arbitrary and capricious government by having the three branches counteract one another’s power grabs.

In the past, Congress responded to executive ascendance by strengthening itself. The 1946 Legislative Reorganization Act was a soup-to-nuts reworking of the legislature, and aimed to curb the executive branch, which had grown immensely during the Great Depression and World War II. The law swept away anachronistic legislative procedures and committee jurisdictions. Congress created a new process for budgeting, and reorganized the congressional committee system to empower its oversight of the executive. Recognizing that bigger government meant more to manage, Congress hired more staff to craft policy, oversee spending, and respond to public demands.

Two decades later, Congress again found itself supine before an “imperial presidency” that was out of control and out of touch with the public. So the legislature bolstered its power by expanding congressional capacity. It added to its corps of expertise by hiring more civil servants and tightening its power over the purse. The effects were immediate and positive, with great oversight efforts like the Church Committee’s exposure of domestic spying and other misdoings by intelligence agencies.

Congress’ last serious attempt at reform occurred in the early 1990s. Intra-Democratic party politics kneecapped the effort. When the Republicans won control of Congress in 1994, they enacted reform of their own sort: they downsized congressional staff and centralized power in the speakership. The GOP also cut the budget of the Government Accountability Office and abolished the Office of Technology Assessment. With fewer civil servants to help it, our national legislature grew weaker vis-a-vis the president.

Congress was set up as the first branch of government, the institution which would be most in tune with a diverse public. Its main job is to listen to voters and reconcile their competing demands into policy carried out by the executive branch. This is the very definition of representative government.

Trump’s behavior, however, is exacerbating the long-term trend wherein Congress grows weaker and the executive branch grows stronger. The cumulative effect over time is a government less connected to a diverse public, and more divisive rule by presidents playing to their electoral bases. Governance has become less stable as executive orders are used to make new policy and abolish policies created by former presidents.

This trend has not gone unnoticed by voters. Indeed, our government risks a legitimacy crisis because the people have been quite unhappy with Congress for quite some time. For a decade, fewer than one in five Americans have approved of Congress’ performance.

It has been more than four decades since Congress reorganized itself and bolstered its resources to meet the evolving demands of the day. The 21st century is here, and our national legislature is lagging far behind. Congressional reform is desperately overdue.

The Constitution grants Congress immense authority to structure and fund itself as it deems best. Small efforts to “make Congress great again” are happening in the Capitol, such as the bipartisan efforts at budget reform and congressional reorganization.

However, they will not achieve much unless more of we the people contact our senators and representatives to tell them to reform and strengthen Congress now.


Kevin R. Kosar is vice president of policy at the R Street Institute and co-directs the nonpartisan Legislative Branch Capacity Working Group.

Building Article I Conservatism

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By Philip Wallach

The Federalist Society has been famously influential in shaping conservatives’ constitutional vision since its founding in 1982. Its promotion of original-meaning originalism and the concept of the unitary executive have been especially important. There has been no correspondingly distinctive conservative position on the proper institutional role for Congress, however, and so the Federalist Society is now in the midst of an Article I Initiative, in which it seeks to articulate some unifying vision of what our legislature’s institutional and constitutional role should be. As part of that effort, this past Thursday it convened a day-long “Restoring Article I Conference” at the U.S. Capitol Visitor Center.

What most people probably expect from such an event is a barrage of attacks on the unaccountable administrative state and a wish that the powers of each branch revert to their 1920s levels, such that Congress would take upon itself the responsibility of making all policy decisions of any consequence. Some such arguments were made: Representative Barry Loudermilk (R-GA), for example, came over to the event after casting his vote on the omnibus bill and delivered some broadsides against the gross imbalance that has prevailed ever since World War II. Loudermilk, who has introduced a bill to eliminate the Environmental Protection Agency, said of his thinking: “I’m one of those guys who would love to wave a magic wand and get everything back to what our founders intended.” Sen. Mike Lee (R-UT), in his keynote address, was especially concerned about Congress’s having given its power over trade policy to the president, who can too easily manipulate trade policy for his own political purposes.  He had little sympathy for members looking to avoid hard votes, declaring, “If you don’t want to make tough decisions on legislative policy, don’t become a politician.”

Most speakers expressed their support for the Regulations from the Executive in Need of Scrutiny (REINS) Act, which they thought would at least force the legislature to be accountable for the most significant regulations. (Notably, Professor David Schoenbrod, one of the nation’s most prominent critics of delegation to the executive, expressed misgivings about the current House-passed version of REINS, which he thought was biased in an anti-regulatory direction rather than simply standing for congressional accountability).

Strikingly, though, delegation was far from a dominant theme throughout the proceedings. Instead, discussions revolved around how to get the institution working—legislating, overseeing, actually getting into the nitty-gritty of governing—better than it does today. For all the deep love of Publius’ Federalist unsurprisingly present in the room, there was a great deal of worry that the “ambition counteracting ambition” was a theory not being realized in practice because of legislators’ complacency. Instead of ambition in the service of the public good, many speakers worried that most members have settled for the thin gruel of self-preservation in an institution that has contributed to its own marginalization.

Theories about the main causes of Congress’s current maladies were decidedly mixed. Not surprisingly, former Senate Majority Leader Harry Reid (D-NV) was a figure that loomed large in pointing to what had gone wrong. Former Rep. Tom Davis (R-VA) lamented the many ways in which the 21st century Congress has tried to transform itself into a quasi-parliamentary system, complete with the party that does not control the White House conceptualizing itself as an opposition party (beginning, he thought, with Reid during the Bush 43 administration). He did wonder to what extent parties were, in seeing themselves that way, essentially giving increasingly polarized voters what they wanted. He and former Rep. David McIntosh (R-IN, and a co-founder of the Federalist Society) had a lively colloquy about whether Republicans had facilitated the rise of this style of politics by eliminating earmarks, with Davis saying that the congressional power of targeting spending had given back-benchers “skin in the game” that they conspicuously lack today, and McIntosh saying that rampant abuse had more than justified their elimination. Davis said that at the end of the day, deciding who should have the power to designate the recipients of local project spending is a matter of who we ought to trust, and he preferred to trust elected legislators (though, he didn’t clearly say how to overcome a situation in which most Americans don’t trust Congress).

The current broken relationship between the budget, authorizing, and appropriations processes came in for criticism from a number of angles. Senator James Lankford (R-OK) recalled that Ronald Reagan had once held up a giant omnibus spending bill and promised “never again” before begrudgingly signing it, only for Congress to make giant omnibuses (like the one just signed into law) the normal way of appropriating, to the point where “regular order” sounds almost fantastic to most members today. He was not shy in declaring that the 1974 Congressional Budget Act was overdue to be replaced by something new that could have a chance of working for a couple of decades. The way things are done now, he said, there is effectively no balancing of priorities across different jurisdictions; the President’s budget, he thought, was just so much wasted effort and perhaps better dispensed with entirely. He and Davis both highlighted the ongoing costs imposed by our current reliance on continuing resolutions, especially because so many contracts cannot be altered or updated as needed during CRs.  Former Senator John Kyl (R-AZ) pointed out that the framers seem to have underestimated the president’s ability to undermine Congress’s power of the purse through the veto’s leverage. David Hoppe, a former high-level staffer in both chambers of Congress, vehemently urged the 115th Congress to take the (now apparently radical) step of going straight into FY2019 appropriations bills; he worried that most members had never really had the experience of undertaking committee work that they knew would be meaningfully reflected in finalized appropriations bills, and thought that simply making the attempt would be a valuable experience for Congress in trying to reassert the power of the purse.

The theme that emerged most clearly, and which seemed closest to unanimous support, was the need to restore the talking filibuster. While one or two speakers sounded sympathetic to scrapping the filibuster, in general the room seemed solidly against that idea, instead arguing that some institutionalized respect for minority factions (and their intense preferences) was entirely consistent with democracy and in fact indispensable to a system meant to promote compromises. On the other hand, no speaker had a kind word for the current practice of simply taking cloture votes with a 60-vote threshold and then moving on if 41 Senators object. That relieves senators from actually having to hold the floor and present arguments for their positions, making automatic obstructionism all too easy and sucking the substance out of important debates. Senator Kyl pointed out that the presiding officer could require some actual speaker to maintain an objection on the floor under the current rules.

On a related note, we heard a great deal of frustration about the Senate’s current practice of allotting 30 hours of debate on each confirmation vote, regardless of whether anyone has anything approaching that amount to say on the nominee’s suitability. Democrats have used that practice to clog up the Senate’s calendar—but the onus is on the majority party to reform the confirmation process to make it more sensible, now that it has devolved. Mike Lee, once again, thought that actually making people talk for the full 30 hours, including weekends, would quickly change things.

The most interesting discussion of the day was about whether members really want change. Christopher DeMuth, now at the Hudson Institute and formerly the long-time President of the American Enterprise Institute, argued that mostly they do not—they like having an institution structured to minimize hard votes. DeMuth argued that this situation is not the result of legislators’ defective moral character, but the inevitable and rational adaptation to a modern society in which demands for government intervention have multiplied well beyond a legislature’s ability to handle them responsibly. Members come to orient their legislative careers around a few key issues and the building of their personal brand, the better to participate in the celebrity-influence culture that is still capable of shaping public policy debates as they play out (as the legislature itself is not). From DeMuth’s perspective, would-be reformers do well to keep good ideas for change alive but shouldn’t expect big breakthroughs until some major crisis comes in and unsettles things.

DeMuth’s co-panelists Matt Glassman, of the Government Affairs Institute at Georgetown, and James Wallner, of the R Street Institute, pushed a more optimistic view about our legislature’s internal capacity for change—especially if it focuses on those virtues most distinctive to its constitutional position as a legislature. Glassman described a culture in which backbenchers have become convinced that they must do leaders’ bidding; Wallner explained how leaders have cultivated a sense of fear in order to sustain this dynamic, telling members that chaos will ensue if members don’t fall into line. Both urged members in the Senate—the chamber in which individual members possess considerable power because of the reliance on suspending the rules through unanimous consent—to realize their power to change things. If the Majority Leader wants to stifle real open-ended debate by filling the amendment tree, members just need to stop him from doing it by getting a ruling from the parliamentarian. As Hoppe later put it, “The Senate system works if the members are allowed to work the process.” If they are shut out from doing so, their justifiable sense of pride in their office ought to push them to do so. At least in the Senate, members can become agents of change just by saying, “No.” As Wallner has recently argued, Republicans could similarly address the confirmation delay problem by simply refusing to waive the rules.

Plenty of other issues received bits of attention. Building greater congressional capacity, including through increasing staff and member pay? The speakers who weighed in were supportive. Term limits for members? Against. Term limits for committee chairmen? Against, though Hoppe argued it was important that committee members be able to vote out chairmen who they feel are operating ineffectively.

Does this all add up to a coherent, overarching, distinctively conservative vision? Not self-evidently, anyway. And, in fact, while partisans naturally have their focuses determined to some extent by their side’s political needs of the moment, it was striking how non-ideological and ultimately non-partisan these reform discussions were. Perhaps the most important divide now seems to be between leadership and rank and file members—especially on the Republican side. The Federalist Society’s speakers on this day mostly seemed to sympathize with the members. Whether that augurs well for a bottom-up restructuring of our legislative branch remains to be seen.

Philip Wallach is a senior fellow in governance at the R Street Institute.

New resource on Joint Select Committee on Budget and Appropriations Reform

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The Joint Select Committee on Budget and Appropriations Reform was established by the Bipartisan Budget Act of 2018 (P.L. 115-123) to make recommendations and develop legislative language that will “significantly reform the budget and appropriations process.” The committee is made up 16 members (eight Senators and eight House members) chosen by the four Senate and House party leaders.

The law directs the committee to issue a final report no later than November 30, 2018; the committee will hold its first (closed) hearing on March 8, 2018. The committee is required to hold no fewer than “five public meetings or public hearings” and a minimum of “three public hearings, which may include field hearings.”

At this early stage in the game, it’s unclear what the committee plans to discuss or if they’ll be able to formulate recommendations that will attract bipartisan support in both chambers. As the committee’s hearing schedule and agenda begin to take shape, LegBranch’s team of congressional experts and blog contributors will provide ongoing coverage and analysis. Check out our Select Budget Committee Resource Page frequently, as it will be updated regularly with information, analysis, and reports on the committee’s activities.

Rep. Darin LaHood on congressional dysfunction and the prospects for reform

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By Marian Currinder

Efforts to reform congressional dysfunction typically come from senior members who are tired of not getting anything done, former members who can speak openly (and critically) about what’s wrong with the institution, and various organizations dedicated to improving Congress’s capacity and performance. Not so with H. Con. Res. 28, which would establish a joint committee on the organization of Congress to study and make recommendations to improve the organization, operations, and functions of Congress. The resolution is sponsored by Rep. Darin LaHood (R-18th/IL), elected to Congress less than three years ago. Rep. Dan Lipinski (D-3rd/IL) is the resolution’s primary co-sponsor.

It’s been just over one year since LaHood introduced H. Con. Res. 28. We sat down with him to talk about the resolution, dysfunction in Congress, and the prospects for reform in the 115th.

Despite his relatively short stint in Congress, LaHood is well versed in the politics of dysfunction. Prior to winning a seat in the House, he focused on ethics and transparency issues as an Illinois state senator, and as a state and federal prosecutor. He worked as a Hill staffer in the 1990s, and his father, former Rep. Ray LaHood, represented Illinois’s 18th district from 1995-2009. He came to Washington with the perspective that government is supposed to be effective.

So far, H. Con. Res. 28 has 64 co-sponsors from both sides of the aisle, many of whom are freshmen. There are no leaders signed on to the bill and according to LaHood, this is by design. For now, he and Lipinski want the effort to be more organic and “grassroots driven.” Once they have at least 100 co-sponsors, they’ll determine a strategy for taking their resolution to leadership.

Asked if there was any one event or issue that served as the impetus for H. Con. Res. 28, LaHood said that for him, it was the “constant blowing of timelines and deadlines.” Whether it’s passing CR’s, doing things by omnibus, dealing with fiscal cliffs or the debt ceiling, Congress isn’t doing what it’s supposed to do. LaHood said that dysfunction is the common denominator that needs to be addressed.

LaHood and many of his freshmen co-sponsors immediately recognized institutional dysfunction. New members are instantly aware of Congress’s low approval ratings and lack of productivity.  There’s a strong desire, he said, to see a return to regular order and to establish a regular process so that members can serve more effectively. This doesn’t happen anymore – everyone knows it, yet dysfunction continues to persist. LaHood says his colleagues have a lot to say about what's wrong with Congress and a lot of good ideas.

The idea for a joint committee on the organization of Congress was born out of a desire to provide members from both sides of the aisle with a platform or mechanism for bringing ideas to the table. That doesn’t exist now, according to LaHood. “Members are here for 72 hours, running around like crazy, and there are no opportunities to sit down and discuss these issues in a cerebral way.”

He and Lipinski made a conscious choice to propose a forum for ideas rather than prescribe their own solutions to the problems. The committee would provide a much-needed setting for the exchange of ideas. Discussions would be bipartisan and bicameral, and take place at both the staff and member level. One goal is for members to build relationships across the aisle and across chambers—something that he says members have little time to do, but would go a long way in terms of improving dysfunction.  

As for whether the current dysfunction can be blamed on the members themselves, LaHood says there’s plenty of blame to go around. There are members who resist change because the system as it currently works serves them well. And there are members who are ideologically extreme and don’t have much interest in working across the aisle. That said, he believes all members need to be accountable to their constituents and should embrace a transparent process that actually works.

In the absence of a dedicated congressional reform effort, LaHood isn’t very optimistic about Congress resolving its current dysfunction. Some members, according to LaHood, are looking hopefully at the recently established Joint Select Committee on Budget and Appropriations Process Reform. If that committee actually “works,” then there’s hope for a joint committee on congressional organization, operations, and functions. But institutional reform isn’t going to happen on its own -- there are simply too many things that need to change.

Marian Currinder is senior fellow in governance at R Street Institute and edits the LegBranch.com blog.

 

 

 

Could advisory committees help repair a broken Congress?

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By Stuart Kasdin

Congress and the media have recently celebrated Congress’ success in funding the government, after only a short shutdown. With this Congress, even producing continuing resolutions in a timely fashion is recognized as an achievement. To pass almost any other significant legislation, starting with the Bush tax cuts, Congress has relied on budget reconciliation because it enables simple majority votes in the Senate obviating the need for bipartisan negotiation and compromise.

Over the years, many non-governmental organizations have offered a variety of reform proposals to address congressional dysfunction. Many of these proposed reforms focus on changing the rules of floor debate, filibusters, the amendment process, the congressional schedule, and the budgeting process.

There are two problems with these reforms. First, there is an endogeneity problem: those responsible for the gridlock and dysfunction are also responsible for deciding on reforms to alter it. When reforms that would reduce gridlock and enhance Congress’ effectiveness do not get adopted, it is generally because most members don’t want the change.

Second, while the proposed reforms are typically worthwhile, for the most part they do not address the root of the problem—a failure to deliberate. Congress is failing from a lack of communication, comity, and willingness to compromise.

In our paper, “Creating Comity Amidst Gridlock: A Corporatist Repair for a Broken Congress," we examine a solution involving an expanded role for public participation based on deliberative democracy. Deliberative democracy holds that for a democratic decision to be legitimate, it must be preceded by authentic deliberation; that is, voting alone is not sufficient to establish legitimacy and public buy-in.

We examine different institutions of deliberative democracy that might be applied to the Congress. Federal advisory committees are one set of such institutions that are used to inform, counsel, and guide government agencies in the implementation of federal programs. These committees, with members taken from the relevant public stakeholder groups, enable adversarial interests to build relationships over an extended period as they negotiate program goals.

The international equivalent of the advisory committee design is found in democratic neo-corporatism, in which certain community or interest groups are privileged participants in the national policy formulation and implementation. In democratic neo-corporatism, national governments foster negotiations on economic policy and other issues via committees composed of business, labor, and state interest groups.

We apply these approaches to Congress, assessing the potential feasibility for a form of democratic neo-corporatism in Congress, where advisory committees made up of representatives of different stakeholder and interest groups are attached to each congressional authorizing committee. We analyze how such a congressional advisory system should be designed, such as how to achieve representative membership, as well as to select members who might effectively work together. We also ask whether there is a realistic chance such an institutional innovation, aimed at encouraging public deliberation, could ever develop, and thereby enhance communication and compromise in Congress.     

So, is there a realistic chance of Congress adopting such an innovation? One would be foolish to bet against congressional inertia, but such reforms are possible. One reason is that variations of the system could be tested on an experimental basis, with individual committees opting to form advisory committees on specific policy issues. Committees could weigh on an individual basis whether a particular issue and the political environment lend themselves to advisory committee input. Unlike other institutional reforms, Congress could test (and refine) advisory committees, opting to use them when it makes most sense for a committee. 

But until a majority of members accept that congressional dysfunctional is intolerable and commit to finding innovative solutions, changes in Congress will only come via elections. That would seem like a strong incentive to reform, but change is never easy.

Stuart Kasdin was a professor of public management at George Washington University, worked at OMB for over 11 years, and currently serves on the Goleta City Council in California.

What would heal Congress?

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:

Conclusion

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.

Ten ways to unsuck Congress

 Image Source:  The Atlantic

Image Source: The Atlantic

By Casey Burgat, Marian Currinder, Kevin Kosar, Philip Wallach, and James Wallner

“This place sucks.” Sen. Joe Manchin’s candid commentary came during discussions with Democratic leadership about whether the West Virginia senator would run for reelection.

Manchin’s remarks were less a revelation than a rare, public expression of a feeling common on the Hill. Life in Congress is a drag—the public loathes the institution, the parties relentlessly trash each other, and few members feel they have power to do anything. The federal budget is a mess, the executive branch runs rampant, and oversight has devolved into just another part of the permanent campaign.

But it does not have to be this way. Congress is free to structure its operations, set its own rules, and fund itself however it pleases. To help our friends on the Hill get their groove back (and improve their public image), the R Street Institute’s Governance Project Team offers these 10 ideas for improving life in Congress:

  1. Don’t wait for permission to do your job. Senators complain about how the Senate works. But they can force votes on amendments and legislation even when the majority leader says no. By exerting their procedural prerogatives more forcefully on the Senate floor, senators can re-establish an equilibrium between the two parties, thereby creating the conditions for compromise.
  2. Reinstitute Calendar Wednesday in the House. Given the consent of the chair, committees could bypass leaders and call measures for consideration on the House floor on one legislative day a week. This practice would incentivize members and committees to make policy. Would it be messy? Probably, but that’s okay. Democratic governance is supposed to be a messy, bottom-up process.
  3. Enforce existing rules to overcome excessive obstruction. Doing so would offer Senate Republicans a way to increase the Senate’s productivity without undermining the ability of all senators to participate in the process on behalf of their constituents.
  4. Get rid of the 6-year term limit on House committee chairmen. Republicans adopted this rule in 1995 and it discourages chairs from developing policy expertise and conducting good oversight. Moving from chairman back to rank-and-file status is unappealing and leads to diminished effectiveness in the chamber. Nine of 21 House committee chairs have already announced their retirements at the end of this session.
  5. Pay congressional staff more. Seriously. Twenty-somethings are great, and they’ll work hard for cheap, but Congress badly needs to attract and retain more experienced hands. The cost of living in the D.C. area has skyrocketed and talented staff can make a lot more off the Hill.
  6. Staff up the legislative branch support agencies. These agencies—CRS, GAO, and CBO—provide nonpartisan, objective analysis to Congress, and their staffs have dwindled as government has grown larger and more complex. This is a recipe for ill-informed governance.
  7. Trust support agency experts to be experts. Today, many of these experts feel stifled and are forbidden to reach conclusions despite clear evidence on an issue. As one former support agency analyst put it, “We need to return to valuing authoritativeness over objectivity.” Not all sides of an argument are equal, and Congress would be wise to allow the experts at their disposal to speak clearly and authoritatively.
  8. Get Congress back into regulatory policymaking in a serious way. Creating a dedicated Congressional Regulation Office that would help legislators deal intelligently with the complex technical issues involved would help.
  9. Take ethics seriously. Let the Office of Congressional Ethics (OCE) do its job. Instead of restricting the OCE’s authority and jurisdiction, the House should adhere to the principles of transparency and public accountability. Congressional workplace cases should be handled through the OCE’s independent and transparent process.
  10. Provide institutional resources for congressional member organizations (CMOs). Most CMOs provide bipartisan forums for the exchange of policy information. Since 1995, House rules have prohibited members from providing CMOs with congressional office space, use of the frank, and funds from their office allowances. CMOs also cannot accepts gifts, funds, or services from private organizations. Member organizations that promote regular, bipartisan dialogue and policy solutions should be encouraged, not thwarted.

There are many other things Congress can do to make itself stronger, more competent, and a happier place to work. But these reforms would be a good start.

Casey Burgat, Marian Currinder, Kevin Kosar, Philip Wallach, and James Wallner staff the R Street Institute’s Governance Project, which aims to “Make Congress Great Again.”

What ails Congress? Six explanations

 Source:  Bloomberg

Source: Bloomberg

By Philip Wallach

Summary

Everyone has an opinion on what is wrong with Congress. This post covers the field, laying out six different types of explanations as to why America’s legislature is struggling, ranging from factors well beyond legislators’ control to institutional choices clearly susceptible to reform.

Introduction

In my new National Affairs article, “Congress Indispensable,” I lay out an ideal of what our legislature ought to be and describe how our current Congress falls short of that ideal. I quite intentionally eschew diagnosis and prescription, because too often discussions about congressional dysfunction proceed as if the institution’s failings are self-explanatory and that it is obvious what a healthy legislature would look like. Our abundance of clichés for discussing a “broken” Congress notwithstanding, the truth is that people have varying or even conflicting senses of what the institution should do and how it is failing. I argue that our aspirations for Congress need to be informed by the particular strengths of representative government, rather than the values of efficiency or social welfare that so often dominate our public discourse.

But the appetite for diagnosis and prescription is bottomless! Early reactions to the article indicate that people are downright miffed not to find any acknowledgment of their favored explanation of what has gone wrong or what would fix things. So in this post, I do my best to simply catalog prescriptions, and in a sequel I will do the same for diagnoses.

I aim to be comprehensive (in ideas, if not citations); if I’ve missed anything, I hope readers will let me know. I also aim to suppress my own opinions (of which I have many) about the relative merits of these judgments, leaving those arguments for another day. I proceed through several different levels of explanations.

1.     The modern world is no place for legislatures

Perhaps the demands of modernity are fundamentally incompatible with generalist legislatures that are too formalist, slow, and myopic to keep up. The work of government has become so complex and intricate that legislators seem unable to effectively guide policy development, while centralized and hierarchical executives are able to build the administrative structures needed to do so.[1] At the same time, modern communications technologies enhance the possibilities for direct contact between government and citizens, including extensive reliance on referenda. And so, across the western world, legislatures are in decline.[2] As I explain in “Congress Indispensable,” this perspective can be thought of as the central feature of the tradition of skepticism about Congress dating back to Woodrow Wilson’s Congressional Government.[3]

A distinct, but related, path to legislature-skepticism is to suggest that the problems representative legislatures historically emerged to solve have been eclipsed by others, so that representative assemblies are no longer well-suited to serve society’s needs. F.R. Ankersmit suggests that representative institutions were well suited to “the kind of problem that we inherited from our aristocratic past (i.e., conflicts arising from social inequality),” but are not very capable of handling the “conflict within the mind of the individual citizen” between competing values, which he believes are now the more important type of problem.[4] Meanwhile, where original parliaments were very concretely rooted in the consent of feudal lords, the sort of consent modern legislatures are able to offer is highly abstract, and not actually of much concern to most citizens. More flexible purpose-specific networks, which make no pretension to universal consent but offer some features of openness, are on the rise.[5] Some argue that Congress’s bicameral structure makes its predicament even more severe than other legislatures, with its two chambers’ differing distributions of preferences rendering decision-making especially difficult.[6]

2.     21st-century citizens don’t want representative government

Less grandly, perhaps it is not modern life that representative legislatures are incompatible with, but rather modern citizens. Apparently, citizens throughout the developed world are souring on democracy itself, with young people in particular showing an increasing appetite for strong leadership rather than deliberative process.[7]

Legislators in particular strike contemporary observers as feckless and corrupted. A 1995 study found that U.S. citizens professed a strong commitment to democracy, but in fact reviled most of the observable features of our democracy; members of Congress seemed to embody the hated “out of touch Washington system” more than any other actors, and thus came in for special contempt.[8] Congress is supposed to somehow be able to balance expanded expectations for government performance, respect for (multiplying) identity groups, and its core function of representativeness, but it has no means of doing so.[9]

Some argue that decades of reforms promoting transparency have made Congress’s image problem considerably worse. In short, citizens now have an easier time seeing how the sausage is made, and (unsurprisingly) they don’t like it. Their distaste for many of the most transactional features of lawmaking, such as earmarks, has led to their elimination in the name of “good government” principles, but in fact the overall effect has been that Congress has deprived itself of tools it needed to perform governing functions smoothly.[10] In short, Congress is squeezed between citizens’ insatiable desire to know and their distaste for what they see; trust is difficult for Congress to regain, once lost, since neither openness nor “secrecy” sit well with the public.

3.     21st-century America is too polarized to have a working Congress

The single most-discussed feature of the modern Congress is its polarization. In the mid-20th century, there was considerable overlap between Democrats and Republicans’ voting behavior in both the House and Senate. Both parties contained liberal and conservative elements (in large part because of the long shadow of the Civil War) and there were several distinct issues cleaving legislators into variable coalitions. Today, all that has changed: Democrats are “liberal” and Republicans are “conservative” (with both of those words bearing highly stylized, historically contingent meanings), and they line up against each other in well-ordered battle lines to a remarkable degree. Nearly every live issue sorts liberals against conservatives, and the numbers of genuine moderates has fallen precipitously over the last decade.[11]

There is some controversy about whether congressional polarization is attributable to a deeper polarization of American citizens; some scholars have argued that a relatively moderate public is increasingly poorly represented by two parties so uniformly and sharply opposed to each other, and the proportion of American voters registered as independent is at an all-time high.[12] But there is considerable evidence that Americans themselves are becoming sorted into two distinct camps, such that elite polarization ought to be regarded as a fairly faithful representation of Americans’ views. Especially important in this regard is what Alan Abramowitz and Steven Webster have dubbed negative partisanship: a firm allegiance to one party motivated primarily by antipathy to the other.[13]

Rather than simple polarization causing congressional dysfunction, the real problem may be the specific configuration of modern polarization, which features two nearly balanced sides locked into a confrontation without a clear favorite. Frances Lee argues that it is the extended period of competitive balance between Democrats and Republicans that began in the 1980s, and is now easily the longest such period in American history since the Civil War, which pushes our politics toward mutual destruction and futility.[14] Severe polarization has occurred before, but with a clear majority party being held accountable by a responsible opposition rather than with two roughly equal combatants. The dynamics of such a system are quite different from what we see today.

4.     Our congressional elections produce the wrong incentives for legislators

Rather than seeing polarization of the citizenry as the problem, we might instead focus on other aspects of our contemporary election process that give members of Congress the “wrong” incentives. As leading culprits, observers often point to:

  • Partisan gerrymanders and extremist primary electorates. The argument is that strategic partisan redistricting has created more safe seats, which in turn empowers the quite unrepresentative voters who turn out to vote in the primary elections that are in essence the “real” elections for control of the congressional seat.[15]
  • Special interests who are perceived to have captured our political process, corrupting it to do their bidding, often in the form of protecting an unjustifiable status quo. Their influence comes through the careful distribution of monetary donations, which have flooded the system and forced legislators facing well-financed opponents to devote their own energies disproportionately to fundraising. Even if naked quid pro quo bribery is a small part of national politics, much more access to the system is available to those who pay, and the interests of large corporations end up crowding out others.[16]
  • A changed media environment, which pushes office-seekers to frame things in increasingly national and hyper-partisan terms. In Tip O’Neill’s day, “all politics is local” may have been high wisdom, but it seems quite dated in an environment that channels dollars and media attention to those who adopt the most confrontational postures. The demise of local journalism, the rise of social media, and the fragmentation of media into warring political camps all contribute.[17] This might also be connected to longstanding complaints about the demise of comity and civility in our political culture. When the “loudest” voices in our political discourse have concerns that systematically diverge from the electorate as a whole, or from a refined elite that previously saw itself as the keeper of a certain kind of decorum and values, the result is a coarsened politics that fails to appeal to the better angels of our nature.

5.     Modern political parties are subverting the institution

America’s two leading political parties have always been about winning elections, but they have nevertheless transformed in ways that many people believe have caused them to degrade contemporary politics.

  • The parties sought and achieved a degree of ideological consistency unknown to mid-20th century American politics, which featured two “big tent” parties whose strange concatenations of client groups could only be explained historically. By succeeding so spectacularly in making Democrats the “liberal” party and Republicans the “conservative” one—and by solidifying the meanings of those ideologies in ways that put them squarely at odds with each other—the parties essentially hollowed out the vital center of American politics and made it impossible for legislators to work across the aisle.[18]
  • An alternative perspective emphasizes not ideological consistency, but the remarkable extent to which parties have succeeded in making politics into almost exclusively a team sport, with absolutely everything being given a partisan valence and framed in terms of zero-sum partisan conflict. In other words, the parties have managed to polarize our political arena and thus our whole society, rather than causation running in the other direction.
  • Alternatively, one can argue that the focus needs to be primarily on the modern Republican Party, which has fashioned itself as an “insurgent outlier” rather than as an organization capable of contributing to governance. Most prominently championed by Tom Mann and Norm Ornstein, this view explains contemporary dysfunction as a consequence of the rise of Newt Gingrich and his cohort of Republicans who took control of the House of Representatives in the 1994 elections. Under the leadership of Gingrich, and through the speakerships of Dennis Hastert, John Boehner, and now Paul Ryan (and frequently paralleled in the Senate), Republicans structured Congress to promote conflict and embarrass their partisan opponents.[19] This shift could be attributed to fundamentally corrupt motives on the part of Republican leaders (who were scandalously solicitous of corporate interests), or to a fundamental asymmetry in the composition of the two parties’ electorates, with Republican voters preferring an ideological, bomb-throwing style of representation and Democratic voters more interested in transactionally pursuing various policy objectives.[20]
  • Although their position has never been spelled out as definitively, a diametrically opposed set of observers identify such Democrats as Jim Wright, the Clintons, Rahm Emanuel, Nancy Pelosi, and Harry Reid as prime movers in turning Congress into a more combative arena.[21]
  • Surprisingly, there are also those who would blame the weakness of parties as a major cause of current legislative dysfunction. Ray La Raja and Jonathan Rauch argue that the diminished role of state parties vis-a-vis activist donors and national parties has been a major factor in promoting highly ideological politics.[22]

6.     Congress is crippling itself

Finally, a number of theories assert that Congress’s contemporary failures result from self-inflicted wounds.

  • Leadership, overbearing or impotent? Some observers see Congress as having become leadership-heavy in ways that push against real deliberation. Retiring Representative Reid Ribble (R-WI) lamented that “The leadership has 100% say on everything and they drive and direct every decision.”[23] Others, however, actually lament the ways that campaign finance laws have diminished the power of leaders to push through compromises.[24]
  • Anti-majoritarian rules, especially the filibuster. For those who envision the legislature’s proper role as being a simple conduit for majority opinion, any choices that entrench supermajority requirements are clearly to be regarded as perniciously “antidemocratic.” Others oppose the filibuster and the proliferation of “veto points” within the legislative process on the less-populist grounds that they imperil the ability of our legislature to act and thus promote its marginalization.[25]
  • Confused and weakened committees. Congress is destined to remain a body of generalists, and yet the division of labor embedded in its committee structure is crucial to allowing it to specialize enough to legislate effectively. Today, a tangled web of overlapping committee jurisdictions weakens Congress’s ability to hold the executive branch accountable.[26] Meanwhile, committee assignments are apparently made on the basis of fundraising prowess rather than policy interest or acumen.[27]
  • Congress has piled up self-imposed rules, especially in the realm of budgeting, that impose a series of mini-crises that must be handled in order to stave off serious negative consequences. Such artificial crises (“cliffs”) have crowded out everything else from the legislative agenda, as well as poisoning relations between members.
  • Congress has allowed its own functional capacity to erode (or in some cases actively disabled itself). This unilateral disarmament in the conflict between branches (frequently discussed here at LegBranch.com) can be seen either as a manifestation of a dysfunctional Congress or as an independent cause of institutional dysfunction.[28]

Conclusion

Not all of these explanations can be correct—some are diametrically opposed to each other. Still, there is probably truth in many of them. My own belief is that there is less at stake in getting the right answer than most people seem to think. The “we” of the reform community will never be of one mind, nor should it be. People are energized to search for ways to strengthen Congress for a variety of reasons, and their passions are unlikely to be transferred from one strategy to another as a result of any social scientific detective work. Reform is more often in the realm of rhetoric than of careful logic, and there is little to be gained by pretending otherwise. It would be a shame if people of good faith hoping to help Congress right itself ended up expending their energy competing with each other rather than collectively working to promote an atmosphere of congressional self-reflection and renewal. There are plenty of problems to go around.

And solutions, too—which I will catalog in my next post.

Philip Wallach is a senior fellow in governance at the R Street Institute.

Notes

[1] On the advantages executives possess (and have accumulated), see Andrew Rudalevige, “Constitutional Structure, Political History, and the Invisible Congress,” in The Imperial Presidency and the Constitution, edited by Gary J. Schmitt, Joseph M. Bessette, and Andrew E. Busch (Rowman & Littlefield, 2017).

[2] See, e.g., Valentine Herman and Juliet Lodge, “The European parliament and the “decline of legislatures” thesis,” Politics 13 (1978): 10-25; John G. Matsusaka, “The eclipse of legislatures: Direct democracy in the 21st century,” Public Choice 124 (July 2005): 157-177.

[3] Woodrow Wilson, Congressional Government (Transaction Publishers, 2002 (1885)).

[4] F.R. Ankersmit, Political Representation (Stanford University Press, 2002), p. 106.

[5] Ankersmit discusses the work of Jean-Marie Guéhenno in this vein; 182-185. Cf., Edward L. Rubin, Beyond Camelot: Rethinking Politics and Law for the Modern State (Princeton University Press, 2005). For an empirical look at the rise of policymaking bodies outside the control of not only the legislature but of the state itself, see Catherine E. Rudder, A. Lee Fritschler, and Yon Jung Choi, Public Policymaking by Private Organizations (Brookings Institution Press, 2016).

[6] Sarah A. Binder, Stalemate: Causes and Consequences of Legislative Gridlock (Brookings Institution Press, 2003), 83.

[7] See Roberto Stefan Foa and Yascha Mounk, “The Signs of Deconsolidation,” Journal of Democracy, January 2017, pp. 5-15. http://www.journalofdemocracy.org/sites/default/files/02_28.1_Foa%20%26%20Mounk%20pp%205-15.pdf

[8] Hibbing and Theiss-Morse, Congress as Public Enemy, pp. 88-98.

[9] Joseph Cooper, “Performance and Expectations in American Politics: The Problem of Distrust in Congress,” in Congress and the Decline of Public Trust, edited by Joseph Cooper (Boulder, CO: Westview Press, 1999); Russell J. Dalton, Democratic Challenges Democratic Choices: The Erosion of Political Support in Advanced Industrial Democracies (Oxford University Press, 2004).

[10] Jonathan Rauch, “Political realism: How hacks, machines, big money, and back-room deals can strengthen American democracy,” Brookings Institution, May 2015. https://www.brookings.edu/wp-content/uploads/2016/08/political-realism-rauch2.pdf; Daniel Stid, “Two Pathways for Congressional Reform,” in Is Congress Broken: The Virtues and Defects of Partisanship and Gridlock. Eds. William F. Connelly Jr., John J. Pitney Jr., and Gary J. Schmitt (Brookings Institution Press, 2017), pp. 11-36.

[11] Nolan McCarty, Keith T. Poole, and Howard Rosenthal, Polarized America: The Dance of Ideology and Unequal Riches, 2nd Edition (MIT Press, 2016).

[12] Morris P. Fiorina, Disconnect: The Breakdown of Representation in American Politics (Norman, OK: University of Oklahoma Press, 2009). More recent data is available in Samantha Smith, “5 facts about America’s political independents,” Pew Research Center Fact Tank, July 5, 2016. http://www.pewresearch.org/fact-tank/2016/07/05/5-facts-about-americas-political-independents/.

[13] Matthew Levendusky, The Partisan Sort: How Liberals Became Democrats and Conservatives Became Republicans (Chicago, IL: University of Chicago Press, 2009); Alan Abramowitz, The Disappearing Center: Engaged Citizens, Polarization, and American Democracy (Yale University Press, 2010); Joseph Bafumi and Michael C. Herron, “Leapfrog Representation and Extremism: A Study of American Voters and Their Members in Congress,” American Political Science Review 104, August 2010, pp. 519-542; Alan Abramowitz and Steven Webster, “The rise of negative partisanship and the nationalization of U.S. elections in the 21st century,” Election Studies 41 (March 2016), pp. 12-22.

[14] Frances Lee, Insecure Majorities: Congress and the Perpetual Campaign (University of Chicago Press, 2016).

[15] Jamie L. Carson et al., “Redistricting and Party Polarization in the U.S. House of Representatives.” American Politics Research 35, November 2007, pp. 878-904; David W., Hahrie Han, and Jeremy C. Pope. “Primary Elections and Candidate Ideology: Out of Step with the Primary Electorate?” Legislative Studies Quarterly 32 (Feb. 2007), pp. 79-105; Elaine C. Kamarck, “Increasing Turnout in Congressional Primaries,” Brookings Institution, July 2014. https://www.brookings.edu/wp-content/uploads/2016/06/KamarckIncreasing-Turnout-in-Congressional-Primaries72614.pdf and citations therein.  Many political scientists dismiss gerrymandering’s importance; for one such argument, see Charles Hunt, “No, gerrymandering is not THE cause for non-competitive elections and legislative polarization,” LegBranch.com, January 5, 2018. http://www.legbranch.com/theblog/2018/1/5/no-gerrymandering-is-not-the-cause-for-non-competitive-congressional-elections-and-legislative-polarization

[16] For empirical evidence on the importance of money to gaining access, see Lee Drutman, The Business of America is Lobbying: How Corporations Became Politicized and Politics Became More Corporate (Oxford University Press, 2015); Joshua L. Kalla and David E. Broockman, “Campaign Contributions Facilitate Access to Congressional Officials: A Randomized Field Experiment.” American Journal of Political Science 60, July 2016, pp. 545-558. For pushback against claims of money’s power, see Jeffrey Milyo, “Politics ain’t broke, so reforms won’t fix it,” Washington Examiner, July 6, 2015. http://www.washingtonexaminer.com/politics-aint-broke-so-reforms-wont-fix-it/article/2567569

[17] Darrell M. West, The Rise and Fall of the Media Establishment (Palgrave Macmillan, 2001); Markus Prior, “Media and Political Polarization,” Annual Review of Political Science 16,  May 2013, pp. 101-127.

[18] For one new historical account, see Sam Rosenfeld, The Polarizers: Postwar Architects of our Partisan Era (University of Chicago Press, 2017).

[19] Thomas E. Mann and Norman J. Ornstein, The Broken Branch: How Congress if Failing and How to Get It Back on Track (Oxford University Press, 2006); It’s Even Worse than It Looks: How the American Constitutional System Collided with the New Politics of Extremism 2nd Ed. (Basic Books, 2016).

[20] Matt Grossman and David A. Hopkins, “Ideological Republicans and Group Interest Democrats: The Asymmetry of American Party Politics,” Perspectives on Politics 13,  March 2015, pp. 119-139.

[21] John M. Barry, “The House of Jim Wright: How a short-lived speakership made congressional gamesmanship the new normal,” Politico Magazine, May 7, 2015. https://www.politico.com/magazine/story/2015/05/the-house-of-jim-wright-117718

[22] Raymond J. La Raja and Jonathan Rauch, “The state of state parties—and how strengthening them can improve our politics,” Brookings Center for Effective Public Management, March 2016. https://www.brookings.edu/wp-content/uploads/2016/07/states.pdf

[23] Craig Gilbert, “Leaving Congress, Ribble warns GOP against overreach,” Milwaukee Journal-Sentinel, December 13, 2016. http://www.jsonline.com/story/news/blogs/wisconsin-voter/2016/12/08/leaving-congress-ribble-warns-gop-against-overreach/95145602/

[24] Jonathan Rauch, “How American Politics Went Insane,” The Atlantic (July/August 2016) (https://www.theatlantic.com/magazine/archive/2016/07/how-american-politics-went-insane/485570/).

[25] For examples, see Hendrik Hertzberg, “Oh, Shut Up,” New Yorker, January 10, 2011. http://www.newyorker.com/magazine/2011/01/10/oh-shut-up; Garret Epps, “How the Senate Filibuster Went Out-of-Control—and Who Can Rein It In,” The Atlantic, December 27, 2012. https://www.theatlantic.com/national/archive/2012/12/how-the-senate-filibuster-went-out-of-control-and-who-can-rein-it-in/266645/. For a similar charge informed by first-hand experience, see Olympia J. Snowe, “Why I’m leaving the Senate,” Washington Post, March 1, 2012. https://www.washingtonpost.com/opinions/olympia-snowe-why-im-leaving-the-senate/2012/03/01/gIQApGYZlR_story.html?utm_term=.1ff6db1bf0b9

[26] Joshua D. Clinton, David E. Lewis, and Jennifer L. Selin, “Influencing the Bureaucracy: The Irony of Congressional Oversight,” American Journal of Political Science 58, April 2014, pp. 387-401 (ungated draft: https://my.vanderbilt.edu/joshclinton/files/2013/06/Influencing-Bureaucracy-AJPS-Manucript-FINAL.pdf).

[27] “The Price of Power,” Issue One (2017). https://www.issueone.org/wp-content/uploads/2017/05/price-of-power-final.pdf

[28] For extended discussion, see Paul Glastris and Haley Sweetland Edwards, “The Big Lobotomy,” Washington Monthly, summer 2014. http://washingtonmonthly.com/magazine/junejulyaug-2014/the-big-lobotomy/; Lee Drutman and Steven Teles, “A New Agenda for Political Reform,” Washington Monthly, spring 2015. http://washingtonmonthly.com/magazine/maraprmay-2015/a-new-agenda-for-political-reform/