Congressional reform without the ideology

Congress needs therapy. Everyone seems to think that the institution isn’t doing its job, but too often what is described as the “problem” doesn’t clearly identify what might be the actual failing of the institution. Congress is a contentious and acrimonious place for sure. But being “unpleasant” doesn’t necessarily relate to how good a job it is doing. And, to the point, what is the job that Congress is supposed to do?

The goal of this essay is to accurately identify the problem – what is Congress’s actual failing? – to consider root causes, and then, potentially, explore solutions. The stakes are great because when Congress doesn’t do its job, less accountable institutions fill the breach.

What exactly is Congress’s problem?

Arriving at a neutral assessment of what is wrong with Congress is very difficult in a political and ideologically-driven environment. Critics of Congress typically fit into three broad categories.

Some, generally on the liberal side of the spectrum, are perennially critical of Congress for not taking actions to address the nation’s ills. Sixty years ago, the standard academic criticism of Congress was that it swept society’s biggest problems – segregation, poverty, health care, education, etc. – under the rug. The argument: “Congress needs to do more – the federal government needs to do more.” This continues to be the refrain today, with that side of the spectrum focusing on racism, inequality, climate change, education (still), and physical infrastructure, among other issues.

This perspective generates a “number cruncher” approach to measuring congressional performance.  Success is measured by how many bills Congress passes and how many hearings it conducts, for example. This is usually presented as a neutral approach to assessing the institution, but of course really reflects a bias in favor of federal action.

On the right, the critique is that Congress fails in its duty to restrain the executive in the regulatory sphere and, more generally, in acting to scale back the federal role in commerce and other areas. The Congress, conservatives say, is to blame for a federal sector that has grown out of control in ways that are not in keeping with the framers’ intent, threatening the very liberties the Constitution was meant to secure. Former Republican Speaker John Boehner rejected the “number cruncher” approach precisely because he thought it was biased in favor of more programs, more federal action.

There is a third group who claim the middle ground; these “good government types” suggest that there are in fact some problems that all sides agree need to be addressed. Their argument is that if commonsense would only prevail, the two parties could come together on an infrastructure plan, perhaps a plan to force better management practices on the government, an effort to foster technological innovation, and compromise solutions on a wide range of issues, including  immigration, education, health, climate, the explosion of debt, etc.

From a disinterested standpoint, the first two approaches are easy to dispose of. Liberals think Congress should do more to legislate federal solutions to society’s problems. Short of that, it isn’t doing its job. Conservatives either see a lack of action as potentially a good thing (at least there aren’t more programs), or, alternatively, as a failure to affirmatively address the problem of a government that is too big and must be reined in to preserve citizens’ liberties.

The third group tries to bridge that gap by narrowing the scope of what Congress must do to a list of consensus items. While these objectives (just like those represented by the first and second groups) may be laudable, they, too, are value-laden. In fact this group generally represents a moderate, establishment, status quo approach. That approach may happen to fall somewhere between the other two on the question of the proper federal role (although probably closer to the view of liberals), but there certainly is a discernible policy bias.

A new baseline

Any reasonable standard for measuring Congress’s functionality obviously shouldn’t be too ambitious, given that Congress wasn’t designed for speed and efficiency. And, to keep ideology out of it, we shouldn’t focus on how much Congress should do but what it needs to do.

The way to get to a reasonable baseline of congressional productivity or functionality is to start with Congress’s fundamental responsibilities as outlined in the Constitution: to authorize the activities of the federal government, to fund the activities of the federal government, and to conduct oversight of those activities at least sufficient to inform the authorization and funding processes.

Conveniently, Congress has established its own baseline in the first two of these areas. It burdens itself with periodic (usually every 1-5 years) re-authorizations or updates of many major agencies’ programs, and, of course, annual appropriations to fund those activities. Even granting that a perfect record is unattainable, and Congress should surely be graded on a very lenient curve given its inherent challenges as a sprawling and diverse representative body with two uncoordinated chambers, in recent years Congress has earned a failing grade.

Updates of agency authorities and programs are typically quite delinquent. Elementary and Secondary Education programs are on five-year cycles; the last re-authorization was ten years late. Transportation programs that have varying cycles are rarely close to authorized on time. Farm programs lag. The all-important annual intelligence agencies re-authorization used to be done like clockwork – not anymore. Water resources programs fall behind schedule. Higher education programs miss deadlines by years. NASA reauthorizations have lagged by as many as 15 years. The list goes on.

And no one argues that programs in these areas are wisely left alone. Circumstances change, experimental efforts fail, but existing programs continue without reexamination or sufficient oversight, at considerable expense and societal cost. It is particularly interesting to note that the Department of Homeland Security, an agency that is regarded as dysfunctional and lacking a coherent mission, has never had its authorities, programs, and existence comprehensively reexamined in its whole 15 year history.

It wasn’t always this way. While Congress sometimes missed the mark on re-authorizations in the latter decades of the 20^th century, it wasn’t by nearly as much as today. And the spade work needed to look deeply into program activities as a prelude to legislation was done more rigorously and regularly.

The record on funding is even worse. The standard Congress sets for itself is to look at each agency’s budget every year and complete legislation that provides that budget by the beginning of the fiscal year. Congress does this via 12 appropriations bills that divide up the whole federal establishment into relatively digestible portions.

While in the past – say 20-plus years ago – some of the bills would often fail to pass by the October 1 fiscal year deadline, by and large they were completed several days or a month or so into the new fiscal year. For 20 years now, Congress has mostly not even come close. Digestible individual bills are rolled into massive omnibus vehicles that few members have a say in and that receive far less scrutiny than in the past. And these massive omnibus packages almost never pass on time. Today it is the norm for the government to be run on auto-pilot, via the so-called “continuing resolution,” for many months or even a full year. This means agency program implementation goes through fits and starts every year leading to ineffectiveness and waste. Agencies are hamstrung, unable to innovate or even plug the most basic holes.

The bottom line? The baseline for measuring congressional functionality should be the one Congress sets for itself: re-authorize on schedule and appropriate on schedule – or at least make some progress in that direction.

Root causes of congressional dysfunction

The root causes of congressional dysfunction boil down to two factors. One is the increasing pressures on the representative role members serve, and the second is greater partisanship in our politics.

First, the burden of the representative side of members’ duties has grown significantly, crowding out focus and resources from legislative duties. Technological advances have increased the amount of interactions with constituents, and changed their tone. With the advent of email in the 1990s, and eventually its ubiquity in the new century, and the metastasizing social media platforms, members are inundated with constituent demands that they ignore at their peril. Staff resources have not kept pace; rather, members have, for political reasons, chosen to reduce staff as the demands on them have grown.

In addition to that, the fundraising pressures members face are greater than ever. The cost of running for reelection is much higher in real terms today than it was even ten years ago, and the parties have at the same time forced members to pony up more funds for the greater good. Failure to do so limits one’s growth opportunities in Congress – plum committee placements, committee and subcommittee leadership slots, not to mention rising in the ranks of party leadership.

Partisanship is, as is generally agreed, a really big deal. This is not to say U.S. politics haven’t always had intense policy battles, even in the decades after WWII when partisanship receded. The battles over the expansion of the federal role, Vietnam, and civil rights, just to name a few controversies, were every bit as bitterly fought as the battles we have today on health, taxes, the environment, etc. If anything, the controversies of the 1950s and 1960s were more intense.

But, and this is key, the party system wasn’t organized along the same ideological lines as the major policy debates. A greater percentage of Republicans in Congress voted for the 1964 Civil Rights Act than Democrats. The fight over Medicare the following year didn’t break down neatly along party lines, and both parties had hawks and doves when it came to the U.S. role in the Vietnam War.

But the parties, like the times, were a-changin’. This was a gradual process, though. During the 1980s, National Journal vote tallies still showed overlap in Congress on the major issue dimensions to the point where the majority of members in both chambers fell between the most conservative Democrat and the most liberal Republican on the left-right spectrum. A tipping point was reached after the 1994 Republican Revolution where in recent years there is often no overlap between the parties in the Senate and at most only a handful of House members fall between the most conservative Democrat and most liberal Republican.

Concomitant with the alignment of the parties along liberal-conservative lines – “ideological sorting” is the commonly used term – was an assertion of authority in Congress by the party leaders. While the process arguably traced back to the speakership of Jim Wright in the late-1980s, leadership control over the congressional agenda took off with the Newt Gingrich speakership in 1995, never to turn back. Even in the staid Senate, leaders like Trent Lott and Tom Daschle in the early 21^st Century started asserting leadership prerogatives on the amendment process and the substance of legislation in ways not seen in anyone’s lifetime. Committee prerogatives were overrun in both chambers.

Rank and file members were complicit in these changes. After all, they elect their leaders, so, in effect, they acquiesced to tighter control of the agenda at the expense of their own ability to influence the details of legislation. This was rationalized as a necessity to keep party control of the agenda and to enhance the potential of re-taking a chamber. The need for message coherence and timely action were paramount.

Why do leaders of both parties and both chambers see it as essential to keep a tight grip on the legislative agenda? Why not use the power to work across the aisle to get legislation passed on major issues of the day, or even, say, the 12 appropriations bills?

The answer, as has been developed best by political scientist Frances Lee, is that at the same time the parties sorted ideologically (especially the mid-1990s and forward) party control of the chambers was more likely to be up for grabs each electoral cycle. While Democrats normally had large margins in the House throughout their 40 year reign (1954-1994), and often had a comfortable margin in the Senate, in subsequent years the margins have usually been much smaller. The stakes every two years are immense.

The fact is that working across the aisle boosts members of the other party – something leadership does not want to see happen, as opposing party members who are effective may be harder to beat in the next cycle, and their ability to get things done enables them to raise more money for their party. Instead, leadership exploits every opportunity to get votes on provisions that put vulnerable members of the other party in a difficult spot. Appropriations bills become the best targets, as they are relatively open to amendment.

Consequences of increased partisanship

The fact is that bipartisanship is the sine qua non of consistent legislating in the US Congress. The Senate requires 60 votes for passage of reauthorizations of agencies and appropriations bills. Getting to that magic number means getting members of the minority party on board.

But this is hard when bills are freighted with contentious policy riders that are meant to embarrass members by forcing them to vote on hot button issues – guns, immigration, transgender rights, environmental regulations.  As a consequence, the essential work of Congress – updating agency policies on a timely basis, getting budgets done on time – is next to impossible to accomplish. The political incentives militate strongly against bipartisan efforts to “get stuff done” and strongly in favor of focusing on issues that will benefit the party politically. The party leaders and the rank and file see their prospects for majority status enhanced by policy riders and undercut by cooperation to pass appropriations bills. Apparently there is always the hope, down the line, that they’ll get the majority they need (and control of the White House) to govern as they wish and show the American people that their way is the right way.

Alas, decisive majorities are ephemeral at best, and the reality of the need for bipartisanship to govern effectively given the rules and structure of Congress abides. But the balance today – and it’s been this way for more than two decades – is heavily weighted toward scoring political points. Members are simply not rewarded for producing; they’re rewarded for being team players. The rewards come not just from their party leaders in the form of better committee assignments and other perks; arguably the rewards also come from voters who punish moderates in the primaries.

Changing the calculus

Getting Congress to work again requires changing the political calculus so that the bipartisan work that is required to pass appropriations bills and agency reauthorizations are rewarded. Somehow or another the incentives have got to change.

Of course, as we have seen, this goes against the grain of the political system we have come to know, one that is intensely competitive with two ideologically distinct parties. We have to accept, then, that whatever can be accomplished will be baby steps that gradually and consistently push against the trend. As with any therapy, it’ll be a long process characterized by fits and starts – there is no magic bullet. But at least identifying the problem and the root causes can generate a few modest proposals (below), and maybe more discussion that will produce other ideas.

Based on the analysis above, here are some “small step” ideas that address the root causes of dysfunction:

1. Prohibiting limitation language: One of the problems in passing appropriations bills in a timely fashion or even at all is the prevalence of provisions, sometimes coming as amendments on the floor, that prevent the use of funds for particular policy purposes. These so-called “limitation language” amendments which prevent the use of funds to (for example) implement regulations, or to close Guantanamo, or for a range of other policy objectives, are the parliamentary method Congress uses to get around its own prohibition on authorizing language in spending bills. Prohibiting not just language affirmatively requiring action by an agency, but also language that prohibits the use of funds for particular purposes would serve to de-conflict the consideration of appropriations bills. (Today, limitation language has become arguably Congress’s best tool for combatting presidential prerogative. While limiting the president is of course a legitimate function of Congress, on matters of policy the debate should be in the authorizing context not the funding context.)
2. Earmarking: Another “de-conflicting” strategy, this time both for funding and authorizing bills, would be to again permit the earmarking of funds by Congress. Congress’s imposing the earmark ban on itself ironically served to shift authority to direct funds to the agencies that work for the president – and this was done by a Republican Congress that in effect empowered Barack Obama. Earmarking was a time-tested way to buy support for legislation (transportation bills, water bills, and appropriations bills of all kinds), enabling members of Congress to take credit for accomplishing things. This is in contrast to the current practice of members taking credit for throwing hand grenades and preventing legislation from passing. The earmark reform that made sense, and which got at the corruption that can come with the practice, was put in place by the Democrats in 2007 when they required the publication in report language of the Member who proposed the directed spending.
3. Establishing bipartisan staff practices on key committees: In the past, the members of the appropriations committees were, in effect, served by non-partisan staff – even if they were technically hired by the chair or ranking member. When the power shifted in Congress, staff stayed on, serving different masters but, really, continuing to serve all members of those committees. Only in the last 15-20 years has this practice changed, whereby today appropriations staff look like the staff of almost all the other committees – that is, partisan in not just name but in practice. Only the staffs of the House and Senate Armed Services Committees resemble the non-partisan staffs of the old appropriations committees. The Armed Services staffs often share information, work together on hearings, develop legislation together, and pass legislation. It is not a coincidence that the only bill passed year after year anywhere near on schedule (for over 50 straight years and counting) is the authorization bill for the Defense Department developed and managed by the Armed Services Committee members and staff. Is establishing professional bipartisan staff practices on more committees possible? Maybe, but certainly only if more members understood the significance of it and the contributions those practices can make in enabling Congress to meet its basic obligations.
4.  Taking the debt limit off the table: The Congress, going back about a century, has imposed a cap on borrowing – a “debt limit” – preventing the Treasury Department from, in effect, meeting obligations to creditors (as well as beneficiaries of federal programs established in law) when the limit has been reached. No other democracy does this. The debate surrounding raising the limit has become a political football in recent years, adding fuel to partisan fires. The debt limit debate has gotten wrapped up in the debate on federal funding priorities when in its essence the question is really one of meeting prior obligations. Appropriations bills in particular have been the casualty. It should be pointed out that the existence of the debt limit has done absolutely nothing to reduce or restrain the growth of the debt, which is purely a function of prior decisions on taxes and spending. The debt limit is an artificial impediment to the most basic business of Congress to keep the government running.
5. Rewarding conciliators: If the issue of a functioning Congress is a political one at its core, which it is, then how can the political incentives be directly affected such that members se benefits in working across the aisle and getting major legislation through to passage? There are a lot of PACs out there rewarding members for sticking to their ideological guns and/or toeing the party line. But there are few (if any) PACs that reward compromise and accomplishment. There are plenty of wise old men and women in the establishment who talk about the importance of working together, and even a think tank of two dedicated to these efforts. But those efforts do nothing to provide actual political incentives and cover for members who are under pressure from advocacy groups and their party leadership – both of whom have resources they need. Somehow members have to benefit from taking credit for Congress getting its work done. Maybe there is a way forward if money can be raised not just for ideological agendas but in favor of making the system work.
6. Redistricting reform: The increasing sophistication of redistricting software together with the intense interest on the part of the parties to push every advantage has left us with congressional districts that are now overwhelmingly under the control of one party or the other. 538 research by David Wasserman indicates that over the last 20 years the number of even remotely competitive congressional districts has dropped by half and now stands at fewer than 20% of all districts. The vast majority of House members are only at risk in the primary. Some improvement could be realized by taking the districting decision out of the hands of legislatures and governors and putting it into the hands of truly non-partisan panels, as is done in a few states. If this were done on a broader scale, the number of members pushed to the center by the threat of a competitive general election race would increase, which would ameliorate, at least a little, the tribal tone of the current inter-party dynamic.
7.  Non-partisan primary: California and Washington have instituted non-partisan primaries which have resulted in some districts with two same-party members qualifying for the general election. It stands to reason that when running against a member of your own party in the general election there is an incentive to move to the center to attract independents and adherents of the other party. This is a positive development as compared to the current situation where members unafraid of any competition in the general election appeal to the base while legislating – which contributes to the problem of not reviewing federal programs in the authorizing process and not funding programs in a timely way.

Final thoughts

A proper diagnosis of the ills of the institution gives us a more clear-eyed view of what can and should be accomplished through reform. Congress’s essential failing is simple: it doesn’t do the basics – the appropriations bills that keep the government up and running as efficiently as it can and the re-authorizations that serve to revise and update existing agency authorities and programs. Its failure to fulfill its most basic functions is largely attributable to a more competitive and partisan political climate that rewards obstruction and position-taking. Some steps can be taken – a few possibilities were outlined above – that would serve to adjust at least marginally the incentive structure that contributes to the current dysfunction.

At the end of the day, even when Congress doesn’t do its job, federal policy is made. The president and the executive branch agencies eagerly fill the gap by improvising policy solutions. The courts are asked to step in and adjudicate disputes involving laws that are outdated or unclear. Even the states play a role, bringing suit or improvising as they see fit.

But the fact is that Congress should be at the center of federal policymaking, given that no federal actions can be taken without authority in law and no money can be spent without congressional approval. Its role simply cannot be replaced by these other entities – after all, Congress is the one and only representative institution in our system. Congressional abdication of responsibility has tremendous repercussions.

Perhaps political incentive can be established from the fact that the other branches gain as Congress dithers. Certainly the system doesn’t work as well when the source of laws, in a land governed by the rule of law, sits on the sidelines.