Well, we are just getting through the FY2026 budget process, which Congress was supposed to finish nearly half a year ago. And the next budget process has begun.

During the second administration of Donald Trump, we have seen an escalation of the longstanding battle between the executive branch and the legislative branch over federal revenue-raising and federal spending. Mr. Trump famously unleashed the Department of Government Efficiency, and he has refused to spend money appropriated by Congress. In other cases, he has repurposed money appropriated for one purpose to another purpose. And this is to say nothing of some of the peculiar revenue-raising maneuvers he has made, such as seizing oil from Venezuela, selling it, and then tucking the money in an overseas bank account.

Should we be bothered by any of these doings? Should we really care whether Congress or the president exerts more or less power over the federal purse?

To discuss these questions, I have with me Shalanda Young, who has an extraordinary amount of expertise and experience in federal budgeting matters. Ms. Young presently is a Distinguished Scholar in Residence and Adjunct Professor of Law at New York University’s law school.

Previously, Ms. Young was the Director of the U.S. Office of Management and Budget from 2021 to 2025. In that position, she also led the development of all four of President Joseph Biden’s budgets and presented them before Congress each year. She was also a lead negotiator for the Fiscal Responsibility Act of 2023 that averted a first-ever debt default and lifted the Nation’s debt ceiling. Ms. Young came to the executive branch with a load of legislative branch experience. She worked for the House Appropriations Committee for nearly 15 years and served the Committee as the Staff Director.

So who better to discuss Congress’s power of the purse?

Read the full transcript here.

I can’t recall the last time I met someone who said, “Congress is doing great. The first branch of government is getting things done and playing its central role in our Constitutional system.

Nope. Almost everyone who shares their feelings about Congress with me despairs of the state of our national legislature. They think that it is playing second or third fiddle to the president and the courts.

So what’s wrong with Congress? And are things as bad on Capitol Hill as we are told?

Usually on this podcast I have a guest who answers my questions. But this time around I am going to share my own thoughts. So let me give you my top line conclusion before I share my thoughts

Yes, Congress has some real problems. But it is not a hopeless case; nor is it as bad as it seems. Moreover, legislators, Hill staff, and we the people can improve Congress and revive representative government. We really can.

Read the full transcript here.

Every two years, we have congressional elections, which feature both primary elections and general elections. For nearly everyone who listens to this podcast, this seems like an eternal feature of governance system: primary elections are used to winnow the candidate field, and then general elections give voters the choice between two or maybe three finalists.

But in truth, congressional primaries are a more recent development in our political history. They became the norm only about five or six decades ago.

And like any other system of rules—be it the laws restricting investments or the rules of baseball—primaries are imperfect and susceptible to gaming by the players. Worse, according to some critics, primaries are fueling toxic partisanship within Congress and curbing its capacity to serve the public.

Is there a primary problem? And what is this problem? To help us think through this subject I have with me Nick Troiano. He is the author of The Primary Solution: Rescuing Our Democracy from the Fringes (Simon & Schuster, 2024). Nick is the executive director of Unite America, an organization that advocates for nonpartisan election reform and alternatives to partisan primary elections.

Click here to read a full transcript of the episode.

To many Americans, the United States Congress appears to be a rather nasty place. There are lawmakers calling each other names, introducing resolutions to censure legislators and boot them off committees, and generally behaving towards one another in beastly ways. At least twice in the last few years there were moments when it appeared a couple of members of the House of Representatives might well throw punches at one another.

There is a lot of constitutional and procedural hardball being played in both the Senate and the House. Members are ignoring long-agreed-upon rules or stretching their meanings to justify partisan power plays.

All of which prompts the question, “Is Congress losing the norms that once helped facilitate collective action amongst representatives and senators?

My guest for this episode is Brian Alexander. He is an Associate Professor of Politics at Washington and Lee University. Brian is also the author of A Social Theory of Congress: Legislative Norms in the Twenty-First Century (Lexington Books, 2021), and he is the editor of a new volume titled The Folkways of Congress: Legislative Norms in an Era of Conflict (Brookings Institution Press, 2026).

Click here to read a full transcript of the episode.

The federal government experienced a shutdown in autumn 20025, which is one of many that have occurred in the past 20 years. The nation also has racked up about $38 trillion in debt, and Congress and the president have not taken real action to right America’s fiscal ship.

So should Congress pass a balanced budget amendment to the US Constitution?

My guest Kurt Couchman says ‘Yes, it should.’ Kurt is the author of the new book, Fiscal Democracy in America: How a Balanced Budget Amendment Can Restore Sound Governance (Palgrave MacMillan, 2025).

Kurt has been kicking around Capitol Hill for about 15 years. Presently he is a senior fellow at Americans for Prosperity, a group that promotes the principles and policies of economic freedom and liberty. Previously, Kurt worked for two members of Congress, and has had stints at the Cato Institute and the Committee for a Responsible Federal Budget, among other gigs. He has spent a lot of time engaged with Congress on matters relating to federal spending and the budget, so I am delighted to have him here with us to discuss the idea of a balanced budget amendment to the US Constitution.

Click here for the full transcript to the episode.

Rescissions have been in the news recently. This past July President Donald J. Trump sent the House and Senate a rescissions message. This memorandum requested that Congress rescind, or take back, spending authority it had previously granted. Congress passed the legislation, which cut $9 billion from foreign aid, the U.S. Institute for Peace, and the Corporation for Public Broadcasting. A rescission of funds has not occurred since 1999, when former President Bill Clinton, a Democrat, struck a deal with the Republican-held House and Senate.

Now the Trump administration is attempting a maneuver called a “pocket rescission.” What’s a pocket rescission? 

To answer that question I have as my guest my colleague, Dr. Philip Wallach. He is a senior fellow at the American Enterprise Institute. He is a colleague and a friend. At AEI he studies America’s separation of powers, with a focus on regulatory policy issues and the relationship between Congress and the administrative state. His latest book is Why Congress (Oxford University Press).

Click here for a full transcript of the episode.

Both the Senate and the House of Representatives have a majority leader. At the time of the recording this podcast, Republican John Thune of South Dakota is the Senate majority leader, and Republican Steve Scalise of Louisiana is the House majority leader.

Now, congressional scholars tend to argue that the majority leader emerged as a position in each chamber in 1899. Democrat Arthur B Gorman of Maryland was the first Senate majority leader, and Republican Sereno Elisha Payne of New York was the first House majority leader.

My AEI colleague Jay Cost has a different view. He thinks the first majority leader appeared on Capitol Hill far earlier, and it was Virginia’s James Madison. So, we’re going to discuss that claim, which you can find in his recent piece, "Icons of Congress: James Madison — The First Majority Leader."

So, we’re going to discuss that claim.

Dr. Jay Cost is the Gerald R. Ford nonresident senior fellow at AEI and the author of the superb book, James Madison: America’s First Politician (2021), and other fine volumes on politics and history. Regular readers of UnderstandingCongress.org no doubt have seen Jay’s various reports and essays, and if you have not seen them, do have a look.

Click here to read the full transcript.

In June of 2025, President Donald J. Trump directed US aircraft to drop 30,000 pound bombs on nuclear facilities in Iran. Some legislators in Congress and some media complained that this was a violation of the US Constitution. They note that Article I, Section 8 declares, “Congress shall have the power to declare war.” That same article of the Constitution also empowers the legislature to “provide for the common defense.”

So, was the President’s action constitutional or not? And does Congress’s power to declare war mean anything?

To help us think through these questions I have with me my AEI colleague, Gary Schmitt. He is the author of many books and articles on American government and he has written extensively on legislative and presidential war-making.

Click here to read the full transcript.

We’ve all seen it, and if you haven’t, well, you will soon enough. Social media posts by members of Congress. They are on Facebook, X.com (what used to be called Twitter), Bluesky, and the like. The average voter may be forgiven for wondering, “Why are these lawmakers hanging out online? Don’t they have anything better to do?”

To try to help us better understand what is going on here, I have Annelise Russell, Associate Professor of Public Policy at the University of Kentucky. Dr. Russell has been studying legislators’ use of social media for years and is the author of Tweeting is Leading: How Senators Communicate and Represent in the Age of Twitter (Oxford, 2021). So who better to discuss this topic with us?

Click here to read the full transcript.

The 119th Congress convened in early January. Months have gone by, and there are lots of things happening in Washington, DC.

But is it all being done by President Donald J. Trump? Is Congress itself doing anything?

Gabe Fleisher is here to help us answer that latter question. He is the creator and editor of the must-read publication, Wake Up to Politics. He started this newsletter in 2011, and you may have seen him being interviewed CNN, MSNBC, NPR, and in various other major media.

Click here to read the full transcript.

As the book’s title indicates, its coverage is capacious: the very first excerpt comes from John Adams’ diary entries on the debates in the continental Congress, which he wrote in 1774. The books’ very last entry is taken from the debates that led to the ouster of Speaker Kevin McCarthy in 2023.

Certainly, I could go on and on about all the parts of the book that fascinate me, but today we’re going to do something better than that. I am going to chat with one of the editors, Jordan Cash.

Click here to read the full transcript.

It is not easy for the average voter to imagine how a member of Congress spends each day. We see images of them standing in the ornate chamber, talking with voters, and there’s no shortage of videos of them delivering speeches or denunciations of presidents or the other party. Some polling data indicates that many voters think legislators have cushy, part-time jobs and have legion staff doting upon them.

But is life in Congress really like that?

My guest is Derek Kilmer, who has written a chapter on this subject for Casey Burgat’s new edited volume, We Hold These "Truths": How to Spot the Myths that are Holding America Back (Authors Equity, 2025).

And who better to talk about this topic than Derek Kilmer. He is a former member of Congress. He represented Washington state’s 6th district from 2013 to 2025. Mr. Kilmer served on the House of Representatives’ Appropriations Committee, which helps decide where federal spending goes. Listeners may also remember that Mr. Kilmer also co-led the House’s Modernization Committee, and he previously was on this podcast to explain the various things that were being done to make Congress work better.

Click here to read the full transcript.

Many Americans, including possibly you, dear listener, look at Congress and think, “These people stink. They spend decades in Congress and are out of touch with the American people and pay too much attention to special interests.” This widespread feeling unsurprisingly leads to nearly 90 percent of Americans telling pollsters they favor term limits for legislators.

So would term limits be a helpful reform? To help us think through this question I have with me Dr. Casey Burgat, a professor at George Washington University. He is the editor of a new volume, We Hold These Truths: How to Spot the Myths That are Holding America Back (Authors Equity, 2025). It's a fun book, and has contributions from a lot of smart people. The book also includes a chapter that Casey authored on this very topic of term limits for Congress. So who better for us to have on the program?

Click here for the full transcript of the episode.

My guest is Beau Baumann, a doctoral candidate in law at Yale University. He studies the intersection of administrative law and legislation. He has published articles in a number of law journals and previously worked as an attorney for the US Department of Justice and clerked for a federal district court. He is the author of a really interesting, new article titled, “Resurrecting the Trinity of Legislative Constitutionalism.” In it he describes some of the lost history of Congress’s offices of legislative counsel (OLC).

Click here for the full transcript of the episode.

The Senate did not have a good year in 2024. The chamber did not pass a budget resolution, nor did the Senate enact any of the dozen annual spending bills. Its year-end calendar of business listed dozens of pages of bills on matters large and small awaiting votes. Lots of floor time was spent on presidential nominations rather than on debating policy or amending legislation and voting on it.

To help us get a better sense of what’s not going well in the Senate and what might be done to improve its functioning I have with me Professor Anthony J. Madonna. Tony is a professor at the University of Georgia. He is the author of many scholarly articles on Congress, and most recently published a piece for Political Research Quarterly titled, “Interbranch Warfare: Senate Amending Process and Restrictive House Rules.”

The book was written by Associated Press reporter Michael Tackett, and its title is The Price of Power: How Mitch McConnell Mastered the Senate, Changed America, and Lost His Party. It was published by Simon & Schuster in November of 2024.

It is a fine book, and I certainly enjoyed reading it. I learned a lot about Senator McConnell. For example, who knew that he dated a lot when he was a single guy? Who knew that he had a role in transforming Kentucky from a Democrat-controlled state to one with a vibrant Republican party? And who knew that Senator McConnell recruited a Rep. Tom Cotton of Arkansas to run for the Senate?

Capacious as this book is, I could have read one twice its size. Mitch McConnell is fascinating figure, and a historic one.

So let’s get to it—the story of Mitch McConnell.

Read the full transcript here.

A group of scholars and former House members recently released Revitalizing the House (Hoover Institution/Sunwater Institute), a report calling for the House to revise its rules. You can find that report on UnderstandingCongress.org.

To discuss why the House should change its rules I have with me one of the authors, Dr. Philip Wallach. He is a senior fellow at the American Enterprise Institute. He is a colleague and a friend. At AEI he studies America’s separation of powers, with a focus on regulatory policy issues and the relationship between Congress and the administrative state. His latest book is Why Congress (Oxford University Press).

Click here for the full transcript of the episode.

The House Ways and Means Committee is the oldest committee of the United States Congress, first established in 1789 and became a standing committee in 1805. It has jurisdiction over raising revenue for the government to spend---taxes, tariffs, and the like. The term “Ways and Means” comes from English Parliamentary practice, wherein there was a committee with authority for finding the ways and means to pay for government actions and policies.

My guest is Tom Reed, a former member of the House of Representatives. He was in Congress from 2010 to 2022 and represented New York’s 29th and 23rd districts. Importantly for this podcast, Mr. Reed served on the House Ways and Means Committee and was deeply involved with its tax reform work.

Click here for the full transcript of the episode.

My guest is Rep. Stephanie Bice, a Republican who has represented Oklahoma’s fifth congressional district for the past four years. She previously served in the Oklahoma state legislature from from 2014 to 2020. Prior to that, she worked in business for her family’s technology company and her own marketing firm.

I first met Rep. Bice perhaps eight years ago. I was studying alcohol policy reform and she was deep in the process of helping rewrite some of Oklahoma’s outdated alcoholic beverage laws.

Rep. Bice, I should add, sits on the House Appropriations Committee and the House Committee on Science, Space and Technology. And most relevant for this podcast, she also is on the Committee on House Administration, which has jurisdiction over many matters including the onboarding of new members of Congress.

As listeners no doubt know, Americans are down on Congress. Public approval of Congress has averaged about 20 percent over the past 20 years, according to Gallup. Certainly, the people on Capitol Hill are partly to blame. We have legislators who behave as if they are on a reality television show and who spend a lot of time starting fights on social media. Congress also has hurt its reputation by failing to address major public policy issues, like immigration and the soaring national debt. And then there are the occasional scandals that disgust the average American.

Yet, Americans’ dour opinion of Congress also is fueled by media coverage.

To talk more about this I have with me Rob Oldham, who is a Ph.D. candidate in politics at Princeton University. This year he will be an American Political Science Association Congressional Fellow, and will be spending a lot of time on Capitol Hill. His published papers investigate the relationship between supermajority rules and bipartisan policymaking. His dissertation considers congressional policymaking in response to crises during the era of polarization.

And importantly and especially relevant for this podcast is that Rob is the coauthor (along with James M. Curry and Frances Lee) of a fascinating, recent article titled, “On the Congress Beat: How the Structure of News Shapes Coverage of Congressional Action.” This article was recently published by Political Science Quarterly.

Today, I have with me one of the authors, Michael Johnson, who, I should add, is not to be confused with current House Speaker Mike Johnson.

He has a long resume—he has spent about a half century in or around government, with stints in the White House, Congress, and private sector. Mike also coauthored a book with Mark Strand, Surviving Inside Congress (Congressional Institute, Inc., 2017), which we previously discussed on this podcast.

My guest is Jonathan Rauch, the author of the classic book, Demosclerosis: The Silent Killer of American Government (Times Books, 1994). Jonathan is a fellow at the Brookings Institution, and the author of numerous books, including The Constitution of Knowledge (Brookings Institution Press, 2021), and Kindly Inquisitors: The New Attacks on Free Thought (University of Chicago Press, 2014).

I first read Demosclerosis nearly 30 years ago, when I was a graduate school student. I was rifling offerings outside the Strand Bookstore in Manhattan, and the book’s title grabbed me. Once I cracked it, the writing got me hook, line, and sinker. Rauch had taken social scientific insights to explain the mounting federal government dysfunctionality. Whereas pundits and politicos blamed Washington’s foibles and corruptions on bad people, Rauch showed that the trouble was caused by people within the Beltway rationally pursuing their own interests.

I recently re-read this book and think it is absolutely on to something important about Congress, and I am delighted to have Jonathan here to discuss it.

Show Notes:

- Demosclerosis (National Journal, 1992)

- Mancur Olson

- Government's End: Why Washington Stopped Working (Public Affairs, 1999)

Two centuries ago, America had a contingent presidential election. No candidate got a majority of votes, and thus it fell to Congress to decide who got to be president. Might the United States have another contingent election? Certainly it is possible. Four of the past six presidential elections have been very close. In 2020, had 44,000 voters in Georgia, Arizona and Wisconsin picked Trump instead of Biden we would have had a tied election, with each candidate receiving 269 electoral votes.

So what is Congress’s role in a contingent election? How does that work? To answer these questions I have with me my colleague, Dr. John Fortier. He is a senior fellow at the American Enterprise Institute, where he studies Congress and elections, election administration, election demographics, voting, and more. John is the coauthor of the books After the People Vote: A Guide to the Electoral College (AEI Press, 2020) and Absentee and Early Voting: Trends, Promises, and Perils (AEI Press, 2006). John also hosts The Voting Booth podcast.

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it. But Congress is essential to our republic. It is a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be.

And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I am your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington DC.

John, welcome to the podcast.

John Fortier:

Thank you, Kevin. Pleasure to be here.

Kevin Kosar:

Let's start with a simple question. Why must a presidential candidate get 270 electoral votes in order to become the president?

John Fortier:

There's a short answer and a long answer. The short answer is that 270 is a majority of the electors that are possible to be cast.

The longer answer is that there was a debate in the Constitutional Convention about how to elect the president, but it came sort of late in the process. And I would say the first thing that they needed to decide is what did Congress look like? And there were all sorts of debates and back and forth before a compromise was reached where essentially the House of Representatives was one that represented the people more broadly. The states would have a number of House representatives based on their population and the Senate would be equal in the states.

Now when coming to the Electoral College—figuring out how to elect the president—there were two big principles. One, they had decided at this point that they wanted the president to be elected separately from the Congress. Not like a parliamentary system, not something coming out of the Congress. And secondly, that they were going to reflect that compromise in Congress.

And so, the real number of 270, or the larger number of electors that are available, are basically all of the states have two electors for the senators that they have. And then they have a certain number of electors in the House of Representatives based on their, their House delegation and also D.C. votes. That's what gets you the total, but it is something of a compromise coming out of a compromise, and this is a majority of the votes that you need.

Kevin Kosar:

So it's a constitutional thing, it's not a statutory thing.

Let’s imagine a scenario for the sake of illustrating the process: pretend it is mid-November of 2024, and we have Mr. Biden and Mr. Trump tied at 269 electoral votes each, or, that they each got fewer than 270 votes thanks to a third-party candidate garnering a handful of electoral votes. What happens next?

John Fortier:

You're right to point to two scenarios. One would be that there's a tie in the Electoral College, and in today's numbers that would be 269 to 269. Therefore, no one has a majority or perhaps there's a third party candidate who takes enough electors so that neither of the of the candidates gets to 270. Those are the types of situations which, down the road, are going to get you to a contingent election: one that doesn't go the regular way of counting the electors.

Now, in the meantime, there are steps. The first, of course, is the casting of candidates. The votes by the electors themselves. We the people vote in November, but we are ultimately electing these electors. They are going to their state capitals in each of the 50 states in the District of Columbia, and they are casting ballots in mid-December. Those ballots are ultimately then sent on to Congress and are then going to be counted on January 6. This is typically a very simple process where votes are counted and in almost every case other than two in our history someone has had a majority of the electoral votes. If that is the case on January 6, we have an official president-elect. That person is going to take office on January 20. We similarly do the same thing with the vice presidential votes from the electors for the vice president.

But if no one person gets 270 electoral votes, then we go into what is sometimes labeled a contingent election. And if all is clear, the House of Representatives will immediately convene to vote for a president, but they'll do so in an untraditional way. They'll essentially be voting by state delegation. Each state has one vote and then each state delegation, which could be made up of a bunch of people are somehow going to have to cast that ballot.

Another interesting thing to note—I think that's important—is you do need to get a majority of states, not just a plurality. You need 26 of the 50 state delegations in the contingent election to elect a president. And there are a number of ways in which you might not get that. One possibility is if there are three candidates, another way is that we might have some delegations that are split and that wouldn't count to the total—assuming both those people voted according to party. And you might have a case where somebody has 25 delegations, somebody has 23, and two delegations are split. That's not enough to elect the president, so there's a potential for a deadlock here, and you don't necessarily easily get to the 26.

One more thing lurking in the background, of course, is if for some reason that election is deadlocked or doesn't get to a conclusion, the vice president might be facing the same issue, where the vice president does not have a majority of the electoral votes. In that case, the Senate convenes and votes, but you need to get a majority of the senators to ultimately elect a vice president. Perhaps that might not happen either, but it is more likely that it will not divide in the same way.

You could either have a vice president who's elected, no president, and get to January 20th and have that vice president take over. It is possible that both of the contingent elections are held up, in which case we'd go all the way to January 20th, and then we'd have to go down the line of succession, meaning the Speaker of the House in today's line would become president.

So it's a complicated process, but there is a role for Congress, the House voting very differently than it typically does, and the Senate voting for the vice presidential candidate if there's no majority for either of these in the case of electing the vice president.

Kevin Kosar:

As a follow up, we have the House having to vote for the president, the Senate having to vote for the vice president. Imagine in the House, we have a state that has 10 representatives—six of them prefer Mr. Trump, four of them prefer Mr. Biden. Does their state then get counted towards the presidential total, or do they have to be unanimous? Do we know?

John Fortier:

This would be likely only the case where there are three presidential candidates who are being considered. With the 12th Amendment, the House can only consider the top three candidates. They can't consider anybody else. That was important in 1824 when there was fourth major political candidate who couldn't be considered.

So, if there were a state that had nine reps and it was four to three to two, the House is at times believed that maybe the four would prevail, but we're not absolutely sure about that. So the House might have a role. I'll leave it at that.

Kevin Kosar:

You've already indicated that we could end up in a peculiar situation where if the House can't come to agreement, the Senate could—in theory—come to an agreement about who gets to be the vice president. Would that vice president succeed? Would he become the...]]>The topic of this episode is, "what is Congress' role in a contingent presidential election?"

Two centuries ago, America had a contingent presidential election. No candidate got a majority of votes, and thus it fell to Congress to decide who got to be president. Might the United States have another contingent election? Certainly it is possible. Four of the past six presidential elections have been very close. In 2020, had 44,000 voters in Georgia, Arizona and Wisconsin picked Trump instead of Biden we would have had a tied election, with each candidate receiving 269 electoral votes.

So what is Congress’s role in a contingent election? How does that work? To answer these questions I have with me my colleague, Dr. John Fortier. He is a senior fellow at the American Enterprise Institute, where he studies Congress and elections, election administration, election demographics, voting, and more. John is the coauthor of the books After the People Vote: A Guide to the Electoral College (AEI Press, 2020) and Absentee and Early Voting: Trends, Promises, and Perils (AEI Press, 2006). John also hosts The Voting Booth podcast.

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it. But Congress is essential to our republic. It is a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be.

And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I am your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington DC.

John, welcome to the podcast.

John Fortier:

Thank you, Kevin. Pleasure to be here.

Kevin Kosar:

Let's start with a simple question. Why must a presidential candidate get 270 electoral votes in order to become the president?

John Fortier:

There's a short answer and a long answer. The short answer is that 270 is a majority of the electors that are possible to be cast.

The longer answer is that there was a debate in the Constitutional Convention about how to elect the president, but it came sort of late in the process. And I would say the first thing that they needed to decide is what did Congress look like? And there were all sorts of debates and back and forth before a compromise was reached where essentially the House of Representatives was one that represented the people more broadly. The states would have a number of House representatives based on their population and the Senate would be equal in the states.

Now when coming to the Electoral College—figuring out how to elect the president—there were two big principles. One, they had decided at this point that they wanted the president to be elected separately from the Congress. Not like a parliamentary system, not something coming out of the Congress. And secondly, that they were going to reflect that compromise in Congress.

And so, the real number of 270, or the larger number of electors that are available, are basically all of the states have two electors for the senators that they have. And then they have a certain number of electors in the House of Representatives based on their, their House delegation and also D.C. votes. That's what gets you the total, but it is something of a compromise coming out of a compromise, and this is a majority of the votes that you need.

Kevin Kosar:

So it's a constitutional thing, it's not a statutory thing.

Let’s imagine a scenario for the sake of illustrating the process: pretend it is mid-November of 2024, and we have Mr. Biden and Mr. Trump tied at 269 electoral votes each, or, that they each got fewer than 270 votes thanks to a third-party candidate garnering a handful of electoral votes. What happens next?

John Fortier:

You're right to point to two scenarios. One would be that there's a tie in the Electoral College, and in today's numbers that would be 269 to 269. Therefore, no one has a majority or perhaps there's a third party candidate who takes enough electors so that neither of the of the candidates gets to 270. Those are the types of situations which, down the road, are going to get you to a contingent election: one that doesn't go the regular way of counting the electors.

Now, in the meantime, there are steps. The first, of course, is the casting of candidates. The votes by the electors themselves. We the people vote in November, but we are ultimately electing these electors. They are going to their state capitals in each of the 50 states in the District of Columbia, and they are casting ballots in mid-December. Those ballots are ultimately then sent on to Congress and are then going to be counted on January 6. This is typically a very simple process where votes are counted and in almost every case other than two in our history someone has had a majority of the electoral votes. If that is the case on January 6, we have an official president-elect. That person is going to take office on January 20. We similarly do the same thing with the vice presidential votes from the electors for the vice president.

But if no one person gets 270 electoral votes, then we go into what is sometimes labeled a contingent election. And if all is clear, the House of Representatives will immediately convene to vote for a president, but they'll do so in an untraditional way. They'll essentially be voting by state delegation. Each state has one vote and then each state delegation, which could be made up of a bunch of people are somehow going to have to cast that ballot.

Another interesting thing to note—I think that's important—is you do need to get a majority of states, not just a plurality. You need 26 of the 50 state delegations in the contingent election to elect a president. And there are a number of ways in which you might not get that. One possibility is if there are three candidates, another way is that we might have some delegations that are split and that wouldn't count to the total—assuming both those people voted according to party. And you might have a case where somebody has 25 delegations, somebody has 23, and two delegations are split. That's not enough to elect the president, so there's a potential for a deadlock here, and you don't necessarily easily get to the 26.

One more thing lurking in the background, of course, is if for some reason that election is deadlocked or doesn't get to a conclusion, the vice president might be facing the same issue, where the vice president does not have a majority of the electoral votes. In that case, the Senate convenes and votes, but you need to get a majority of the senators to ultimately elect a vice president. Perhaps that might not happen either, but it is more likely that it will not divide in the same way.

You could either have a vice president who's elected, no president, and get to January 20th and have that vice president take over. It is possible that both of the contingent elections are held up, in which case we'd go all the way to January 20th, and then we'd have to go down the line of succession, meaning the Speaker of the House in today's line would become president.

So it's a complicated process, but there is a role for Congress, the House voting very differently than it typically does, and the Senate voting for the vice presidential candidate if there's no majority for either of these in the case of electing the vice president.

Kevin Kosar:

As a follow up, we have the House having to vote for the president, the Senate having to vote for the vice president. Imagine in the House, we have a state that has 10 representatives—six of them prefer Mr. Trump, four of them prefer Mr. Biden. Does their state then get counted towards the presidential total, or do they have to be unanimous? Do we know?

John Fortier:

This would be likely only the case where there are three presidential candidates who are being considered. With the 12th Amendment, the House can only consider the top three candidates. They can't consider anybody else. That was important in 1824 when there was fourth major political candidate who couldn't be considered.

So, if there were a state that had nine reps and it was four to three to two, the House is at times believed that maybe the four would prevail, but we're not absolutely sure about that. So the House might have a role. I'll leave it at that.

Kevin Kosar:

You've already indicated that we could end up in a peculiar situation where if the House can't come to agreement, the Senate could—in theory—come to an agreement about who gets to be the vice president. Would that vice president succeed? Would he become the president come January 20th?

John Fortier:

Yes, a couple things. First, we could go back to the 1800 election, one of two elections (1800 and 1824) where we did have this contingent election.

In 1800, the Electoral College looked a little different. We hadn't passed the 12th Amendment, and it was a bit of a quirk that it was a tie between two people of the same party—Thomas Jefferson and Aaron Burr. They were running like a ticket. The Federalists didn't do as well, but they controlled a number of congressional delegations, so this tie really could only be resolved with some of the help of the Federalists. Ultimately, especially with the urging of Alexander Hamilton (who preferred Jefferson to Burr), the Federalists voted for Jefferson. So, I think there is bargaining that's likely to happen.

If there is a deadlock, and you don't actually elect the president, most constitutional scholars believe that the president is still sitting there, kind of in waiting. The vice president is going to become the president, but ultimately if the presidential election were later decided—the House came up later in the Congress and decided the election—that president could sort of later come back into play.

Kevin Kosar:

So, when a new Congress first convenes it has no Speaker. One must be chosen before the legislators get sworn in and then move onto the business of the chamber. We had a long drawn out Speaker fight at the start of the 118th Congress in early 2023. What happens to the contingent election if the House deadlocks on choosing a Speaker?

John Fortier:

Of course, what happened in January 2023 doesn't happen very often. I think many people—while we wouldn't like to see this—could think of a way of which the House might not proceed with the Speaker. We—in a sense—had an interim Speaker, Patrick McHenry.

There are people who will argue that maybe the House might proceed without a Speaker by some agreement of the people who were elected. I don't think anybody would prefer that, but I don't think that by itself it would absolutely prevent the House from going forward.

If you mean that there's a determined majority in the House to stop the counting on January 6th and not to go to that joint session, it is in the Constitution we're going to have the joint session.

But I don't think there's anything that really stops the court or others would stop and say the house must join this joint session Similarly the Senate it's the right thing to do. It's what they're supposed to do constitutionally But if you really had a determined number of people of majority of people I think you can do a lot of things to muck up the process So I don't think that's gonna happen and I don't recommend it but you know at the end of the day Determined majorities in Congress can do a lot.

Kevin Kosar:

That's true. Determined majorities can do an awful lot, especially in the House—which is a majoritarian entity—but certainly also true in the Senate. Earlier you've referenced the line of succession. For the help of listeners who are not familiar with it, could you talk a little bit about what this is? This is a constitutional thing. Is it a statutory thing? And who's in this line?

John Fortier:

Yes, it is both a constitutional and a statutory thing. The 12th and 20th Amendments have a process by which the vice president is going to take over for the president if the president dies, resigns, gets impeached and removed, or incapacitated.

That's a little trickier, but also clarified by the 25th Amendment. There are ways in which the president might not be able to be president and the vice president steps in. That's clear. Then it says is that Congress may provide a line of statutory line of succession. It says some more specific things like which officer shall be next in line.

Over the years, we've had three big different ideas, different laws of presidential succession. The first one had just the president pro tem (in the Senate) and the Speaker. The second one, starting in the 1880s, had a Cabinet succession—just the members of the President's Cabinet, no members of Congress.

The current line of succession we've had since Harry Truman put it in place in the late 1940s is a mix. Today, the Speaker of the House and the President pro tem are the top two people, and then there are all the Cabinet members in the order that the Cabinet's departments were created.

There has been some constitutional debate over the years of whether or not it is appropriate to have members of Congress in the line of succession. That's actually something James Madison protested against—saying officer means somebody in the executive branch—even though we did that in the first law.

We at AEI—with Brookings at times—have had a Continuity of Government Commission, and part of the recommendations of that Commission has been to say there might be more sense in having members of the Cabinet be in the line of succession. There are a lot of difficulties of thinking about bringing a Speaker over and being the president either temporarily or for a long time, especially with issues of change of party and the separation of powers issues.

So our current line has the Speaker of the House as next in the statutory line of succession after the vice president. And if for some reason there was no president elected, no vice president elected, and we have to January 20th, the Speaker would be the one who would step in and become president.

Kevin Kosar:

Yes, I could see the concerns about having a legislator step into the chief executive role. You mentioned the Speaker and the Senate pro tempore, the longest serving Senator, correct?

John Fortier:

By custom. Of course, we didn't always pick it that way. It's one of the criticisms of the line that it's often a very senior elderly senator from the majority party.

One other thing that's something of a conflict of interest is the case of impeachment.

Let's say you were to try to remove the president and the vice president, or one of them weren't there. There's a bit of a self-interested matter that perhaps the party in the House that's in the majority might put its own person in place. In fact, there was some rumblings back in the days when Vice President Spiro Agnew had resigned, and some saw President Richard Nixon as on the ropes. There were some people saying, "Don't confirm Gerald Ford because now we can appoint a new vice president with the 25th Amendment." And if you didn't appoint Vice President Ford and then impeached Nixon, the president would have been Carl Albert, the Speaker of the House. And there were even some efforts with a faction of the Democratic Party getting significant memos written about what would the Carl Albert presidency look like.

Kevin Kosar:

We can never forget about incentives, can we? And we can never forget Madison's point that you can't expect people in politics to be angels.

As a closing question, since amongst your many areas of scholarship are a scholar of continuity of government, when you look at the current process for Congress having to deal with a contingent election, do you think it's a pretty strong, robust, and steady process, and that we can relax and not be anxious about it? Or is this something that maybe some sort of reforms really should be put in place to just ensure that things go smoothly?

John Fortier:

We are coming up on the 200th anniversary of the last time we've had a presidential contingent election in the house—1824 was when we had the last one. It's a good thing we haven't had a lot of them. I think with our two party system—which is pretty strong—we're less likely to have it because we're not likely to have a case of multiple candidates. It really has to be a 269-269 tie scenario.

That being said, the Electoral College itself is not popular in most public opinion polls. There are people who don't like the idea of the popular vote being able to go one way and the Electoral College vote the other way. A contingent election is a very obscure procedure, and one that suddenly transforms the House of Representatives into something like the Senate, where the House is voting by states. This is much more unequal than the Electoral College itself, where it could elect a president of the, who didn't win the popular vote. I'm not sure the American people are going to love seeing this process.

There are some little things around the edges that Congress can do to clarify the rules about how it works, but getting rid of it requires a constitutional amendment. There is an effort out there where a bunch of states band together and agree to cast their electors for the winner of the popular vote, indirectly bypassing the Electoral College. That still is hard to do. You have to get a bunch of states to do it and they're not at a majority]]>8e4a4e4a-83f7-4f6e-8076-52f639cbfa04Mon, 06 May 2024 06:00:00 -050024:05falsefull4646Special Books Edition: An Interview with Bradley Podliska, Author of Fire Alarm: The Investigation of the U.S. House Select Committee on BenghaziThis topic of this special episode of the Understanding Congress podcast is a recent book by a former Hill staffer. It is titled Fire Alarm: The Investigation of the U.S. House Select Committee on Benghazi (Lexington Books, 2023)

The author is Bradley F. Podliska is an Assistant Professor of Military and Security Studies at the U.S. Air Force Air Command and Staff College in Montgomery, Alabama.

Brad is a retired U.S. Air Force Reserve intelligence officer with the rank of lieutenant colonel. He was deployed to Iraq in 2008 and also worked as an intelligence analyst for the Department of Defense.

Dr. Podliska is a former investigator for the U.S. House of Representatives Select Committee on Benghazi. He is the author of two books, and that latter experience working on the Hill formed the basis for his book, Fire Alarm: The Investigation of the U.S. House Select Committee on Benghazi.

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it. But Congress is essential to our republic. It is a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be.

And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I am your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington DC.

Professor Podliska, welcome to the podcast.

Bradley Podliska:

Thank you, Kevin, for having me. I appreciate being here.

Kevin Kosar:

You were an investigator for the House of Representatives. I introduced you as a professor, but you had on-the-ground experience inside Congress as an investigator for the House of Representatives. For audience members who have never heard of that position, what do House investigators do? And how did you get to that position?

Bradley Podliska:

Investigators are another term for subject matter experts, usually based on their executive branch experience. The role of an investigator is to interview witnesses, request documents, analyze those documents and then provide new information back to the members for the committee so they can conduct their investigation. Now with that said, the titles when it comes to the Benghazi Committee were completely and totally arbitrary. Attorneys had “counsel” in their title and if you were a non-attorney, you either had the title of investigator, professional staff member, or advisor, but we all did the same work. So we were all analyzing documents, we were all interviewing witnesses, and then we were reporting the results to the committee members.

In my particular case, I spent 17 years in the intelligence community and the Defense Department, and I knew someone that had known the Republican staff director of the Benghazi committee for over two decades. So I submitted a resume and I was hired soon thereafter, and this is a point I actually make in my book Fire Alarm, which is that you're basically hired on perceived party loyalty. I refer to this as a non-compensatory dimension. In other words, merit is a secondary condition. You might be the best person for a job, but if you are not perceived as a partisan, you are not going to be hired in the first place. This is done is through those personal connections that I talked about. I am not aware of any staff member that was hired on the Benghazi committee that either did not have prior Capitol Hill experience or did not know somebody on the committee itself.

Kevin Kosar:

And that should—for listeners who have heard some of the other podcasts I have done on the Congressional Research Service, Congressional Budget Office, Government Accountability Office—that is a very different thing from what happens at those legislative branch support agencies. Over there, it is a nonpartisan hiring process, based on merit, and once they are hired, they are tenured for life once they get through their one-year trial period to make sure that they are a right fit for the job. It is a very sharp contrast.

This committee that employed you—we will call it the Benghazi Committee, since the title is rather long—was not the same thing as the typical standing committees, the ones that have lasted forever (e.g., the Agricultural Committee or the Armed Services Committee). Where did this thing come from? How was it created and how was it different from the usual Congressional Committee?

Bradley Podliska:

That is certainly correct. This was a Select Committee and it was established through a resolution for the purpose of investigating a particular issue. The resolution is going to detail the power and authority that a Select Committee has, and—unlike a Standing Committee—it is not limited to a particular subject area.

Now when it comes to the Benghazi attack, the government had actually conducted 11 prior investigations prior to the setup of the Benghazi Select Committee. The FBI had conducted an investigation. The State Department and County Review Board had conducted an investigation. There were five House committees and four Senate committees that had conducted investigations.

The Benghazi Select Committee in particular was forced into being by an outside group referred to as Judicial Watch. On April 29, 2014, they obtained an email from Obama advisor Ben Rhodes via a FOIA request. And in that email, Rhodes is going to tell Ambassador Susan Rice that she should emphasize that the attacks were, “rooted in an internet video and not a broader failure of policy.” This email forced then-Speaker Boehner—who at the time did not want to set up a Select Committee—to hold a vote on May 8, 2014 to establish the Select Committee on Benghazi. It's going to be given a mandate: nine investigatory tasks that it's going to look to when it comes to the 2012 Benghazi attacks, which boil down to why did the attack happen, how the Obama administration respond to the attack, and did the Obama administration stonewall Congress in its prior investigations.

Kevin Kosar:

What did this special committee look like? Was it a lot of staff working for it? Was it a sprawling operation or was this a tight-knit group of people?

Bradley Podliska:

It was a small staff—24 staff members in total: two press secretaries, two executive assistants, security manager, and the interns. Arguably, there was a 25th member, who was actually a reporter. The committee would link information to this reporter and she would publish the results of this. So, you know, de facto 25. However, of this 25, there was only 15 staff members who could be identified as actually being actively involved in the investigative work of the committee. This included the staff director, the deputy staff director, the chief counsel, and 12 investigators, counselors, and advisors.

Kevin Kosar:

I think it is easy for people—when they hear committees—to think about what they see on TV, which is a bunch of legislators sitting at a dais with maybe a staffer or two lurking in the back, and a clerk tapping out notes of what is going on. But that is not all the people power involved.

How often were legislators working with the staff, poring through documents? What percentage of that time were they there doing that hard work?

Bradley Podliska:

In general, very, very little. Now this did vary from member to member. I actually looked at this in Fire Alarm, so I can say that Representatives Jim Jordan, Lynn Westmoreland and Trey Gowdy were actively involved in investigation. They were attending those witness interviews, and getting briefed on a regular basis. But then we have Rep. Peter Roskam on the opposite side. He only attended four high profile interviews in total. I think I saw him for a total of maybe one staff meeting, so simply not involved.

The day-to-day activities of the committee are actually done by the staff. You are going to tee up that information for the committee members and it is up to them on what they are going to do with it. We can get into details on Rep. Roskam’s Clinton hearing, what it looked like in terms of not being prepared. But generally speaking, it varied greatly between the members.

Kevin Kosar:

It is a good reminder of the old quip by Woodrow Wilson, 120 some years ago, that Congress at work is...]]>This topic of this special episode of the Understanding Congress podcast is a recent book by a former Hill staffer. It is titled Fire Alarm: The Investigation of the U.S. House Select Committee on Benghazi (Lexington Books, 2023)

The author is Bradley F. Podliska is an Assistant Professor of Military and Security Studies at the U.S. Air Force Air Command and Staff College in Montgomery, Alabama.

Brad is a retired U.S. Air Force Reserve intelligence officer with the rank of lieutenant colonel. He was deployed to Iraq in 2008 and also worked as an intelligence analyst for the Department of Defense.

Dr. Podliska is a former investigator for the U.S. House of Representatives Select Committee on Benghazi. He is the author of two books, and that latter experience working on the Hill formed the basis for his book, Fire Alarm: The Investigation of the U.S. House Select Committee on Benghazi.

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it. But Congress is essential to our republic. It is a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be.

And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I am your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington DC.

Professor Podliska, welcome to the podcast.

Bradley Podliska:

Thank you, Kevin, for having me. I appreciate being here.

Kevin Kosar:

You were an investigator for the House of Representatives. I introduced you as a professor, but you had on-the-ground experience inside Congress as an investigator for the House of Representatives. For audience members who have never heard of that position, what do House investigators do? And how did you get to that position?

Bradley Podliska:

Investigators are another term for subject matter experts, usually based on their executive branch experience. The role of an investigator is to interview witnesses, request documents, analyze those documents and then provide new information back to the members for the committee so they can conduct their investigation. Now with that said, the titles when it comes to the Benghazi Committee were completely and totally arbitrary. Attorneys had “counsel” in their title and if you were a non-attorney, you either had the title of investigator, professional staff member, or advisor, but we all did the same work. So we were all analyzing documents, we were all interviewing witnesses, and then we were reporting the results to the committee members.

In my particular case, I spent 17 years in the intelligence community and the Defense Department, and I knew someone that had known the Republican staff director of the Benghazi committee for over two decades. So I submitted a resume and I was hired soon thereafter, and this is a point I actually make in my book Fire Alarm, which is that you're basically hired on perceived party loyalty. I refer to this as a non-compensatory dimension. In other words, merit is a secondary condition. You might be the best person for a job, but if you are not perceived as a partisan, you are not going to be hired in the first place. This is done is through those personal connections that I talked about. I am not aware of any staff member that was hired on the Benghazi committee that either did not have prior Capitol Hill experience or did not know somebody on the committee itself.

Kevin Kosar:

And that should—for listeners who have heard some of the other podcasts I have done on the Congressional Research Service, Congressional Budget Office, Government Accountability Office—that is a very different thing from what happens at those legislative branch support agencies. Over there, it is a nonpartisan hiring process, based on merit, and once they are hired, they are tenured for life once they get through their one-year trial period to make sure that they are a right fit for the job. It is a very sharp contrast.

This committee that employed you—we will call it the Benghazi Committee, since the title is rather long—was not the same thing as the typical standing committees, the ones that have lasted forever (e.g., the Agricultural Committee or the Armed Services Committee). Where did this thing come from? How was it created and how was it different from the usual Congressional Committee?

Bradley Podliska:

That is certainly correct. This was a Select Committee and it was established through a resolution for the purpose of investigating a particular issue. The resolution is going to detail the power and authority that a Select Committee has, and—unlike a Standing Committee—it is not limited to a particular subject area.

Now when it comes to the Benghazi attack, the government had actually conducted 11 prior investigations prior to the setup of the Benghazi Select Committee. The FBI had conducted an investigation. The State Department and County Review Board had conducted an investigation. There were five House committees and four Senate committees that had conducted investigations.

The Benghazi Select Committee in particular was forced into being by an outside group referred to as Judicial Watch. On April 29, 2014, they obtained an email from Obama advisor Ben Rhodes via a FOIA request. And in that email, Rhodes is going to tell Ambassador Susan Rice that she should emphasize that the attacks were, “rooted in an internet video and not a broader failure of policy.” This email forced then-Speaker Boehner—who at the time did not want to set up a Select Committee—to hold a vote on May 8, 2014 to establish the Select Committee on Benghazi. It's going to be given a mandate: nine investigatory tasks that it's going to look to when it comes to the 2012 Benghazi attacks, which boil down to why did the attack happen, how the Obama administration respond to the attack, and did the Obama administration stonewall Congress in its prior investigations.

Kevin Kosar:

What did this special committee look like? Was it a lot of staff working for it? Was it a sprawling operation or was this a tight-knit group of people?

Bradley Podliska:

It was a small staff—24 staff members in total: two press secretaries, two executive assistants, security manager, and the interns. Arguably, there was a 25th member, who was actually a reporter. The committee would link information to this reporter and she would publish the results of this. So, you know, de facto 25. However, of this 25, there was only 15 staff members who could be identified as actually being actively involved in the investigative work of the committee. This included the staff director, the deputy staff director, the chief counsel, and 12 investigators, counselors, and advisors.

Kevin Kosar:

I think it is easy for people—when they hear committees—to think about what they see on TV, which is a bunch of legislators sitting at a dais with maybe a staffer or two lurking in the back, and a clerk tapping out notes of what is going on. But that is not all the people power involved.

How often were legislators working with the staff, poring through documents? What percentage of that time were they there doing that hard work?

Bradley Podliska:

In general, very, very little. Now this did vary from member to member. I actually looked at this in Fire Alarm, so I can say that Representatives Jim Jordan, Lynn Westmoreland and Trey Gowdy were actively involved in investigation. They were attending those witness interviews, and getting briefed on a regular basis. But then we have Rep. Peter Roskam on the opposite side. He only attended four high profile interviews in total. I think I saw him for a total of maybe one staff meeting, so simply not involved.

The day-to-day activities of the committee are actually done by the staff. You are going to tee up that information for the committee members and it is up to them on what they are going to do with it. We can get into details on Rep. Roskam’s Clinton hearing, what it looked like in terms of not being prepared. But generally speaking, it varied greatly between the members.

Kevin Kosar:

It is a good reminder of the old quip by Woodrow Wilson, 120 some years ago, that Congress at work is Congress in committee—staff in Committee; that is Congress at work.

Early in your book, you ask—and this is a driving question for Fire Alarm—how did a committee devoted to researching a terrorist attack on a US compound in Libya turned into a conflictual partisan operation. How did that happen?

Bradley Podliska:

My central claim in Fire Alarm is that both Republicans and Democrats actually use these taxpayer-funded congressional investigations as an arena to mount political attacks for electoral advantage. This actually stems from institutional changes under Speaker Newt Gingrich in 1995. He made committee chair selection subject to a secret party vote and subjected committee chairs term limits, replacing the seniority factor that had been in prior. He set task forces that allow an alternative legislative path to committees. He cut the committee staffs by a third, effectively limiting the expertise available. He also removed the minority party from deliberations.

In terms of the Benghazi committee itself, as I said, Speaker Boehner did not want to set up the committee. His hand was forced by the conservatives, and so when the hiring process was initially completed, it was going to do a check the box investigation. That is up until March 2, 2015, when The New York Times published an article that then-Secretary of State Hillary Clinton used private email. After that, and up to her hearing on October 22, 2015, the investigation is going to kick into high gear going after Hillary Clinton to the exclusion of investigating the White House, intelligence community, or Defense Department.

One example of that is the committee issued 26 press releases about Clinton, three about the State Department, but absolutely none about the White House, Defense Department, or our intelligence community. The committee is going to direct 15 of its 27 document requests towards the State Department, including five for Clinton herself.

Here are a few other examples. The committee is going to produce 74,306 pages of documents; 72,343 of those pages came from the State Department. It interviewed 107 witnesses; only three of those were from the White House. It conducted 24 Defense Department interviews; 19 of those interviews are going to occur in the last four months of the actual investigation itself.

Kevin Kosar:

Not only was Hillary Clinton the Secretary of State, but she considered as the leading candidate for the Democratic Party’s nomination for president in 2016. And what happened in Benghazi became a vehicle of embarrassment and referendum on her confidence. Her use of private email was also remarkable and problematic because a) you are not supposed to do that and b) there are classified information policies that the executive branch and as the leader of an executive agency you are responsible for ensuring that those are obeyed.

What other background factors that should listeners know about?

Bradley Podliska:

Certainly, that is going to change completely the course of the investigation because this now becomes about Clinton's emails. Did she cause a problem and bring the attention onto herself? Arguably, yes. And, as it turned out, she had the private server set up in her basement of her house which added fuel to the fire.

With that said, the investigation goes into high gear and goes after her. Nobody is taking responsibility and now it appears that Clinton is hiding things. This is going to add, as I said, fuel to the fire.

Kevin Kosar:

You noted that, when Newt Gingrich was the Speaker in the 1990s, there were alterations made to the way the House operated. This was the first time that the Republicans had gained control of the House in four decades, and they were putting things under new management: changing how the House works and they were making it a little more parliamentary in nature. It was much more kind of becoming a team sport exercise. When you are the majority, you stick it to the minority. You vote with the team. Do not cross the aisle unless you absolutely have to. And so you describe these kind of forces that have been building up over the years.

But was it inevitable? The Benghazi hearings that were just so polarizing and got so ugly, it did not have to end up that way, did it?

Bradley Podliska:

No, absolutely not. And so, going back to my earlier claim, you are hiring party loyalists to conduct this investigation, and these are not necessarily going to be the subject matter experts. They are getting their direction from Speaker Boehner's office on how to conduct this investigation. And so, one of the points I make in Fire Alarm is it is evident to me that nobody actually read the witness interview transcripts after they were completed. They put together this report kind of anecdotally, and in doing so they missed key factors that actually were more incriminating on Clinton than they actually found.

Kevin Kosar:

So in the rush to bloody up a member of the opposite party and the person who would become the next candidate to run for the presidency, essentially the truth got lost along the way.

Bradley Podliska:

Absolutely. In my book, I talk about a key interagency meeting at 7:30 PM on the night of the attacks. Clinton—as the senior official—is going to lead this meeting, and this groupthink mentality takes place that Ambassador Stevens has been taken hostage. This is going to lead the military to making a whole bunch of other mistakes and delay in their response for Ambassador Stevens.

Instead of looking for all information that was available to her, including contradictory information, Secretary Clinton read a note at the meeting, saying Ambassador Stevens has been taken hostage. Now, we know this is completely and totally untrue. This was a very well planned, well-organized terrorist assault, which later goes on to the CIA annex. But the military is going to follow her lead and basically execute a plan for hostage rescue and assume they had more time than they did, and the CIA annex does not even come into their equation when it comes to the rescue. Also at this meeting, a narrative is going to take hold—also based on absolutely no evidence—that this attack was due to an anti-Islamic video. Jake Sullivan is going to write talking points from this meeting that are going to show up on the Sunday talk shows five days later where Susan Rice is going to make the infamous comments that this all being due to a video that had gone awry.

Kevin Kosar:

It is a popular amongst voters to imagine that there are great and complex conspiracies that are being carried out by nefarious people in high places and that they are very intricate and coordinated, and they can last for decades. That is not what happened here.

What we end up with is clusters of people playing a rough partisan game, crafting narratives on the fly to some degree to suit their priors and purposes, adjusting them along the way, sometimes just making up stuff outright. All the while, the media is running around and having some sort of interplay with it. It is a messy scene.

Bradley Podliska:

That is exactly right. You cannot have a conspiracy when incompetence is the answer. Officials are doing their best, but not entirely. Other officials such as Ben Rhodes and Jake Sullivan are getting involved and putting a partisan spin on this. And the Republican investigation is all in on Clinton but not looking at the White House, Defense Department, or intelligence community.

We just have incompetence built on top of incompetence. There is no conspiracy theory to be had here. It simply comes down to people failed and people failed to take responsibility.

Kevin Kosar:

This is why books like yours are so important, because there was so much noise being made around this whole phenomenon of what occurred in Benghazi. It was a blur of confusion to anybody trying to follow it from the outside. So much information coming out and so much stuff you did not know if it was true or not true. For somebody to go back, write a history, put everything together, and try to explain how it played out, where the facts were, and where the fantasy was is a huge service. We can all learn something instead of being caught in the myths that were spun at the time.

You ended up leaving the committee before the whole hullabaloo was done. Why? What happened?

Bradley Podliska:

This is actually quite interesting. I talked about Newt Gingrich and how he had fundamentally changed Congress in 1995. He is actually going to pass the Congressional Accountability Act. And included in that is employment law—what is referred to as USERRA—meant to protect reservists that go on military service. So right as The New York Times story is breaking, literally that day, I notified the committee I had to go on military leave on two periods, once in March and then again in May.

I came back and staff leadership is not talking to me, they were not giving me an investigative work. It turned out they were very upset that I had gone on leave and that I had not shifted to this hyper-focus on Clinton when I returned. About a month later, they called me in the office, they told me to resign or be fired. I, in turn, filed a USERRA complaint. The whole thing blew up in the media.

When it...]]>42f18831-2b7f-4531-8c80-0eefb93ad940Mon, 01 Apr 2024 06:00:00 -050023:32falsefull4545Why Can’t Congress Budget Responsibly? (with Rep. David Schweikert)The topic of this episode is “Why is Congress struggling to manage the nation’s finances?”

My guest is Representative David Schweikert of Arizona. He was first elected to Congress in 2011. Prior to that, he was a businessman, served in Arizona’s state legislature, and as Maricopa County Treasurer.

He is a Republican and holds a seat on the Ways and Means Committee, which writes tax policy. David also is the Vice Chairman of the bicameral Joint Economic Committee (JEC) and co-chairs both the Blockchain and Telehealth caucuses. He is passionate about economics and finance, which makes him an excellent person to ask, “Why is Congress struggling to manage the nation’s finances?”

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it. But Congress is essential to our republic. It's a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be.

And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I'm your host, Kevin Kosar, and I'm a resident scholar at the American Enterprise Institute, a think tank in Washington DC.

Dave, welcome to the podcast.

David Schweikert:

Kevin, thank you for having me.

Kevin Kosar:

What is the state of the federal budget? Do we even have one in 2024?

David Schweikert:

That is sort of the magic question. You have one, but it is not the one you want. In many ways, we are operating on the spending authorization from previous years, which has been renewed over and over. In other words, we are funding things that were supposed to have expired and not funding things that we are supposed to be getting ready to do.

It is the absurdity of a dysfunctional Congress. Priorities that go back to when Nancy Pelosi was speaker are still being funded today.

Kevin Kosar:

Why is that?

David Schweikert:

I actually have an overarching theory, and then we can get into the nitty-gritty of some of the chaos. There is a general lack of understanding of the level of financial stress that the US Congress and the entire country are under.

We play this bookkeeping game in the United States of, here is publicly borrowed money, and here is the money we are borrowing internally. On Friday (February 23, 2024), I believe we hit an all-time record of borrowing about $92,000 a second. Now you hit this sort of constant stress where every dime a member of Congress votes on now is on borrowed money: all defense and all non-defense discretionary.

If my math is correct, we are going to borrow almost a trillion dollars of Medicare into mandatory this year. So now, you come back and you get a member who is all excited, saying he is going to cut spending on HHS (Department of Health and Human Services), some other agency, or some part of discretionary, and he is going to save $500 million.

That is a lot of money. But when you are borrowing about $7.5 billion a day, many of the fights we are having are over a few hours’—if not just a couple days’—worth of borrowing. It is a way we can look like we are doing something because we are terrified of getting in front of a camera and telling the American public that 100% of borrowing for the next 30 years will be interest, healthcare costs, almost all Medicare, and backfilling the Social Security Trust Fund—if we decide to backfill it.

Kevin Kosar:

Those are astounding numbers. I think it was on Friday you tweeted out some numbers on the national debt, including a figure of how much we are racking up per second. If memory serves, our national debt is north of $30 trillion. Is that right?

David Schweikert:

We are currently at around $34.3 trillion right now. You are going to hear apologists go out and say, “We're only $27 trillion publicly borrowed.” The absurdity of that is you still have to pay back the several trillion dollars you have borrowed from Social Security, the Medicare trust funds, the Highway Trust Fund, railroad retirement trust, etc. And you will have to pay back with interest. And because you do not actually have enough tax receipts, you are going to borrow the money to pay back the very money you have borrowed.

Kevin Kosar:

That’s not good. I would be quite concerned if I had an uncle or somebody who was borrowing money to pay money that he had borrowed.

David Schweikert:

And I only bring it up because this is my moment to tell those out there in the intelligentsia in Washington, DC who were mocking me and my JEC economists about four or five months ago when we were saying interest will be a $1 trillion—over $1 trillion gross—in the 2024 fiscal year. Well, a couple of weeks ago, Treasury confirmed that.

That makes interest the second biggest expenditure after Social Security in your federal government—more than Medicare, more than defense.

Kevin Kosar:

I recall a book from some years ago by Eugene Steuerle, who has written on and thought about budget matters for a very long time. He spoke of the deficits and debt and the crowding effect it can have, and he called it “a loss of fiscal democracy”, because you just do not have as many choices now because you are locked in so many things.

David Schweikert:

And in a weird way, it goes back to your previous question. Why don't you have a rational budget? Why don't you have rational appropriations? Why can't you do rational policy? How do you do those things when you now have to go home and explain to your voters that waste and fraud is huge, but still small compared to what we are borrowing? All foreign aid might be five, seven days of borrowing. Or on the left, taxing rich people more.

There is a great paper out of the Manhattan Institute from about three, four months ago that talks about if you did tax maximization on everyone earning at least $400,000—maximized every tax: estate tax, income tax, etc. to the point where you got peak tax receipts before you started to lose receipts—and adjusted it for its economic effects, you might get 1.5 or 2% of the entire economy. And for many of us on the right who want to cut things, we can only come up with 1 to 2% of cuts in government GDP. That is a lot of money, but—and I am doing this math off the top of my head—I think we have borrowed about 9.6% of the entire economy so far this fiscal year, in a year when the economy is actually pretty good.

So the left's idea only gets you 1.5 to 2% of GDP, and the right’s idea gets you another 1 to 2%, but in a time of good economy, you are borrowing 9.6% of GDP. Do you see a math problem?

Kevin Kosar:

Yeah, I recall that paper you referenced by Brian Riedl at Manhattan Institute. He is a fearless truth teller, knows his stuff, and unlike you or other legislators, he does not have to face voters so he can give the unpleasant facts of the matter. 

Some time back, I spoke with a budget expert who reminded me that it was the habit of the US government since the Founding to try to have a roughly balanced budget over the long run. You hit rough times, a war, or other problems that cause you to run deficits, but then you turn around and make some adjustments and get yourself back to where you are supposed to be. That was Paul Winfree, who used to be at Heritage and now has his own organization.

That seems to have been lost. Everybody seems to want to talk about running structural deficits as a]]>The topic of this episode is “Why is Congress struggling to manage the nation’s finances?”

My guest is Representative David Schweikert of Arizona. He was first elected to Congress in 2011. Prior to that, he was a businessman, served in Arizona’s state legislature, and as Maricopa County Treasurer.

He is a Republican and holds a seat on the Ways and Means Committee, which writes tax policy. David also is the Vice Chairman of the bicameral Joint Economic Committee (JEC) and co-chairs both the Blockchain and Telehealth caucuses. He is passionate about economics and finance, which makes him an excellent person to ask, “Why is Congress struggling to manage the nation’s finances?”

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it. But Congress is essential to our republic. It's a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be.

And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I'm your host, Kevin Kosar, and I'm a resident scholar at the American Enterprise Institute, a think tank in Washington DC.

Dave, welcome to the podcast.

David Schweikert:

Kevin, thank you for having me.

Kevin Kosar:

What is the state of the federal budget? Do we even have one in 2024?

David Schweikert:

That is sort of the magic question. You have one, but it is not the one you want. In many ways, we are operating on the spending authorization from previous years, which has been renewed over and over. In other words, we are funding things that were supposed to have expired and not funding things that we are supposed to be getting ready to do.

It is the absurdity of a dysfunctional Congress. Priorities that go back to when Nancy Pelosi was speaker are still being funded today.

Kevin Kosar:

Why is that?

David Schweikert:

I actually have an overarching theory, and then we can get into the nitty-gritty of some of the chaos. There is a general lack of understanding of the level of financial stress that the US Congress and the entire country are under.

We play this bookkeeping game in the United States of, here is publicly borrowed money, and here is the money we are borrowing internally. On Friday (February 23, 2024), I believe we hit an all-time record of borrowing about $92,000 a second. Now you hit this sort of constant stress where every dime a member of Congress votes on now is on borrowed money: all defense and all non-defense discretionary.

If my math is correct, we are going to borrow almost a trillion dollars of Medicare into mandatory this year. So now, you come back and you get a member who is all excited, saying he is going to cut spending on HHS (Department of Health and Human Services), some other agency, or some part of discretionary, and he is going to save $500 million.

That is a lot of money. But when you are borrowing about $7.5 billion a day, many of the fights we are having are over a few hours’—if not just a couple days’—worth of borrowing. It is a way we can look like we are doing something because we are terrified of getting in front of a camera and telling the American public that 100% of borrowing for the next 30 years will be interest, healthcare costs, almost all Medicare, and backfilling the Social Security Trust Fund—if we decide to backfill it.

Kevin Kosar:

Those are astounding numbers. I think it was on Friday you tweeted out some numbers on the national debt, including a figure of how much we are racking up per second. If memory serves, our national debt is north of $30 trillion. Is that right?

David Schweikert:

We are currently at around $34.3 trillion right now. You are going to hear apologists go out and say, “We're only $27 trillion publicly borrowed.” The absurdity of that is you still have to pay back the several trillion dollars you have borrowed from Social Security, the Medicare trust funds, the Highway Trust Fund, railroad retirement trust, etc. And you will have to pay back with interest. And because you do not actually have enough tax receipts, you are going to borrow the money to pay back the very money you have borrowed.

Kevin Kosar:

That’s not good. I would be quite concerned if I had an uncle or somebody who was borrowing money to pay money that he had borrowed.

David Schweikert:

And I only bring it up because this is my moment to tell those out there in the intelligentsia in Washington, DC who were mocking me and my JEC economists about four or five months ago when we were saying interest will be a $1 trillion—over $1 trillion gross—in the 2024 fiscal year. Well, a couple of weeks ago, Treasury confirmed that.

That makes interest the second biggest expenditure after Social Security in your federal government—more than Medicare, more than defense.

Kevin Kosar:

I recall a book from some years ago by Eugene Steuerle, who has written on and thought about budget matters for a very long time. He spoke of the deficits and debt and the crowding effect it can have, and he called it “a loss of fiscal democracy”, because you just do not have as many choices now because you are locked in so many things.

David Schweikert:

And in a weird way, it goes back to your previous question. Why don't you have a rational budget? Why don't you have rational appropriations? Why can't you do rational policy? How do you do those things when you now have to go home and explain to your voters that waste and fraud is huge, but still small compared to what we are borrowing? All foreign aid might be five, seven days of borrowing. Or on the left, taxing rich people more.

There is a great paper out of the Manhattan Institute from about three, four months ago that talks about if you did tax maximization on everyone earning at least $400,000—maximized every tax: estate tax, income tax, etc. to the point where you got peak tax receipts before you started to lose receipts—and adjusted it for its economic effects, you might get 1.5 or 2% of the entire economy. And for many of us on the right who want to cut things, we can only come up with 1 to 2% of cuts in government GDP. That is a lot of money, but—and I am doing this math off the top of my head—I think we have borrowed about 9.6% of the entire economy so far this fiscal year, in a year when the economy is actually pretty good.

So the left's idea only gets you 1.5 to 2% of GDP, and the right’s idea gets you another 1 to 2%, but in a time of good economy, you are borrowing 9.6% of GDP. Do you see a math problem?

Kevin Kosar:

Yeah, I recall that paper you referenced by Brian Riedl at Manhattan Institute. He is a fearless truth teller, knows his stuff, and unlike you or other legislators, he does not have to face voters so he can give the unpleasant facts of the matter. 

Some time back, I spoke with a budget expert who reminded me that it was the habit of the US government since the Founding to try to have a roughly balanced budget over the long run. You hit rough times, a war, or other problems that cause you to run deficits, but then you turn around and make some adjustments and get yourself back to where you are supposed to be. That was Paul Winfree, who used to be at Heritage and now has his own organization.

That seems to have been lost. Everybody seems to want to talk about running structural deficits as a problem—unless you are a modern monetary theorist—but there does not seem to be much willingness to act.

David Schweikert:

Not to be disharmonious, but I think it has actually gotten in some ways simpler than that problem. The old history is when you need a stimulus, borrow some. When times are good, pay off your sins.

Again, 100% of the debt from today for the next 30 years is interest—another way to say it is demographics. We hate to talk about this because it gets you unelected, but it is truthful—we got old. There was an update in fertility numbers on Friday, which were terrifying. I think we were down to 1.63 in last year's fertility rates. So now we have fertility that is equal to Western Europe and lower than France and a number of other countries. My math is that in about 15 or 16 years, the United States will have more deaths than births.

We have to deal with the reality that we have a population that has earned benefits—our baby boomers have earned their Medicare and Social Security—but we do not have the population growth or the economic vitality to have the tax receipts to take care of that.

So you will have to be willing to do some things that change health care costs. Most of the political class wants to play these games of “Medicare for All” or this or that, but none of those actually reduce costs. What they do is they shift who pays—it is subsidized here and paid over here instead of adoption of technology, adoption of aggressive math.

For example, if diabetes—particularly Type II—accounts for 33% of all healthcare spending, 31% of all Medicare, wouldn’t it make more sense to have a brutally honest conversation to prevent diabetes, maybe by tackling obesity in America? And it turns out mathematically, that is one of the first things in the stack you could do that is moral. It's great for society. It's great for family formation. It's great for being able to come back into the workforce.

It's also moral. We actually have some math that shows that one of the most powerful things you could do to close income inequality for urban poor, rural poor, my tribal poor here in Arizona, would be to take on things that are preventable in health. Five percent of the population accounts for over 50% of healthcare expenditures. Help your brothers and sisters with those chronic diseases, and the most common is obesity. And it is fascinating the attacks I will now receive for what I just told you, even though every bit of that is ethically and mathematically absolutely truthful.

Kevin Kosar:

Yeah, I recall seeing some of the things you put out about Ozempic, and the idea that we could have these medications that could just do miraculous things to improve health in that area.

David Schweikert:

And I want to be careful about that. It is obviously bigger—should you actually have a brutally honest look at agriculture policy? Should you have a brutally honest conversation on what to do with nutrition support in the United States? When you look at mortality statistics and the health outcomes of the population—particularly the poor—and then you actually take a look at what causes those health outcomes, it is frustrating because the political class often wants to say, “We'll just cut spending here.” But when you lay out in front of them what your options are to cut, they like the rhetoric but they do not actually like the facts of what would have to happen.

Kevin Kosar:

And as you alluded to earlier, the magnitude of what they are pointing at is not going to make much of a difference because those are not where the real drivers of the deficit and debt are—they are in these other categories. What are we up to on the entitlements plus debt payments? Is that 65-plus percent—

David Schweikert:

Oh, no, much higher. If you are borrowing close to 30% of your government, and—it is actually probably even more this year. It should not be because you have a year where tax collections have grown four-plus percent. Yet, we actually have had months where our spending is triple that.

There are always complications. We had certain deferred healthcare treatments, we had this huge spike in Medicare, and we are trying to figure out what normalization is. But if we come in this year—when tax receipts are up fairly healthily—borrowing $2.5, maybe $3 trillion, imagine what would happen if we went into an economic slowdown. Imagine if we get into a hot war. Imagine if there is another pandemic. We have made ourselves very economically fragile from the federal borrowing debt standpoint. Congress is no longer in charge. The Administration no longer is in charge. We have made the decision to put the bond market in charge of your government.

Kevin Kosar:

It is clear that it is probably tougher than maybe ever for a legislator to tell voters the truth about how the federal finances work and the real work that goes into cutting deficits. It's not going to be pretty. It's going to be hard—

David Schweikert:

It will be hard. There is hope, but that window is closing on us very fast. We have done some experiments on things you could do in health, the adoption of AI, adoption of technology, shutting down programs that do not really do anything anymore, etc. And for them to have the real fiscal effects before you have hit such a level of borrowing that the financing cost just sort of takes over everything, you may only have four or five years to make some of these decisions. Maybe even less. On some of the health stuff, you need to do them in the next 36 months.

Kevin Kosar:

Is there anything that can be done in terms of the 1974 budget acts that would make it better, easier, or less agonizing and difficult for Congress to collectively kind of make these decisions? Or is it just we just need better people who can step up, tell the truth, and make hard votes?

David Schweikert:

I actually believe in the 1974 Budget Reconciliation Act. There are a number of tools there that could be used, but you also need a structural change in the committee structure. This one is uncomfortable to talk about, but you have a lot of committees that deal with the same policy area. For example, health is in like four committees. And that makes it very complicated and difficult to try to fix things, such as providing certain incentives in Medicare to keep people healthy, add competition, legalize the use of technology, etc. We have to redesign the areas of authority of the individual committees and do a better job of tying the policy side to the appropriation side, because we have this disconnect now where we appropriate, but it is almost impossible to move policies that are disruptive.

For example, we took great joy and pride in the price transparency bill. But our own scorers and outside academics say that it may possibly bend healthcare costs by 0.5% over a decade. Yet you have in many markets a double-digit price growth on healthcare. So we pat ourselves on the back for accomplishing these tiny rounding errors because they sound great in speeches and mail pieces. But the scale of movement against us financially is overwhelming and we are terrified to tell the truth about it. So your only choice may be to put together a debt deficit commission, give it remarkable authority, give it an up or down vote in a lame-duck session, and just accept that the people who lead it are destroying their potential political careers to save the country.

Kevin Kosar:

It sounds...]]>04378df8-e36f-4e7e-b3fc-3ab68b9c68caMon, 04 Mar 2024 06:00:00 -050032:50falsefull4444What Is Legislative Effectiveness? (with Craig Volden)The topic of this episode is, “What is legislative effectiveness?”

We voters often say that we want our senators and members of Congress to do things, and preferably, the right things. We tend to dislike it when we see people on Capitol Hill who are all talk and no action. And in theory, we should vote out of office those lawmakers who are ineffective.

Let me have a caveat here. To be sure, there are some legislators who have turned noise making into a profitable brand, and they do use it to get reelected again and again. But in my 20 years of watching Capitol Hill, it's my estimate that they comprise a small percentage of the total membership. Most people in Congress are, to varying degrees, trying to get things done. So how, then, are we voters supposed to tell which of these legislators are effective and which are not?

To help me answer that question, I have with me Craig Volden. He is a professor of Public Policy and Politics at the University of Virginia. Dr. Volden is the author of many publications. Critically for this podcast's purpose, he is the founder and co-director of the Center for Effective Lawmaking, which produces scores of legislator effectiveness that you can find at: thelawmakers.org.

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it. But Congress is essential to our republic. It's a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be.

And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I'm your host, Kevin Kosar, and I'm a resident scholar at the American Enterprise Institute, a think tank in Washington DC.

Welcome to the program.

Craig Volden:

Thanks so much for having me. It is a delight to join you, Kevin.

Kevin Kosar:

So let's cut straight to the topic of the program. What is legislative effectiveness?

Craig Volden:

This is something that I have been thinking about for a long time working with Professor Alan Wiseman at Vanderbilt University. We wrote a book on the subject about a decade ago called Legislative Effectiveness in the United States Congress: The Lawmakers.

In that book, we defined legislative effectiveness as, “the proven ability to advance a member's agenda items through the legislative process and into law.” So the key elements of “legislative effectiveness”—proven ability, the agenda items of the member, advancing into law—are in there.

Kevin Kosar:

So as the title of the book indicates, it really does focus on the lawmaking function of an elected official.

Craig Volden:

That's right.

And here, Alan and I founded the Center for Effective Lawmaking. And we like to stay in our lane—it is not the “Center for Effective Oversight” or “Center for Effective Communication with Constituents.” The Center is about lawmaking: what it takes to move those bills into law in the Congress and increasingly now in the state legislatures.

Kevin Kosar:

So you mentioned there was a book about a decade ago. In my intro of you, I mentioned the website, thelawmakers.org.

When did that launch, and what was the motivation behind putting that out there?

Craig Volden:

Our book came out in 2014, and there was certainly some academic interest. But there was also some broader level of interest among members of Congress, in the good governance community, and some private foundations. We were blessed enough to get some grant money and to have a conversation about whether we wanted to continue our research on effective lawmaking into the future and, if so, did we want it to be a purely academic exercise or were we interested in maybe more engagement with Congress and with the good governance community? We are both at career stages after tenure where we can combine those—do research and hopefully make that research of use to others.

As part of that, we looked into what would be the best way to make that contribution, and decided that setting up the Center for Effective Lawmaking—a partnership between Vanderbilt University and the Frank Batten School of Leadership and Public Policy at the University of Virginia—made a lot of sense. We have, for example, two dozen faculty affiliates at a variety of colleges, universities, and think tanks, an annual conference, a working paper series, public release of our scores on thelawmakers.org, a small grant competition, etc.—all of the things on the research end that are really helpful to building up a community of knowledge.

On the engagement front, we—along with our good governance partner organizations—generate a new member guide and get involved in orientation materials for new members coming to Capitol Hill. We speak with a variety of organizations that are trying to get people to run for Congress who would be effective once they get there or institutional reformers who are thinking about how to how to make a better Congress.

We aim to be grounded in the research, but simultaneously be of use to the good governance community and to Congress itself.

Kevin Kosar:

Yes. A book is a static creation that cannot be updated unless you release a new edition—you cannot insert new data; you cannot put information on new members of Congress. So a website has got clear attraction to it. Everyone should know also that the website is not behind a paywall—anybody can go take a look at thelawmakers.org.

Now put in terms for non-political scientists out there, how do you measure legislative effectiveness? Do you just count the number of laws that a member's name is attached to as a sponsor or cosponsor? What is the method?

Craig Volden:

We returned to that definition—“proven ability to advance a member's agenda through the legislative process and into law”—to think clearly about how we would objectively measure that.

Prior to our work, there was just the counting up of laws. There was some subjective, “Let's do a survey and see who people think is effective.” We were more interested in a holistic measure, so we actually combine 15 metrics in a weighted average based on the number of bills that any member sponsors, how far they move through the lawmaking process, and how important they are in a substantive sense.

We track five stages of the lawmaking process. For each member of Congress, how many bills did he or she put forward as the main sponsor? But then, how many of those bills received action in committee—a hearing, a markup, a subcommittee vote? How many of them received action beyond committee on the floor of the House or the floor of the Senate—getting to a vote? How many of them passed their home chamber, and how many of them became law?

Since we know that not all of these bills are the same, we downgrade the commemorative bills (e.g., post office naming, minting of coins) and we upgrade the substantive and significant bills—those that get a lot of media attention. These five stages of the lawmaking process and three levels of bill significance combined to 15 weighted average metrics. The things that are rarer—having a law, having a substantive and significant law—then have a much greater weight on one's legislative effectiveness.

We are also recognizing that we are increasingly moving from passing stand-alone bills to conglomerations of bills and ideas into law. The omnibus budget bills or the National Defense Authorization Act (the NDAA) often has embedded within it dozens or hundreds of different pieces of legislation. We are now able to now detect that and give credit for it by using plagiarism style software to find the language that is in bills and see whether it appears in laws later on.

The data available to us is great such that on our website, we are able to give scores for every member of Congress in each Congress from the 1970s right up through the most recently completed 117th Congress and in 21 different issue areas as well. So somebody wondering, ‘Who's really getting something done on defense or in education or in health care?’ can find answers to that and a lot more on our website.

Kevin Kosar:

So I have heard your definition of legislative effectiveness, which is a very individual-centered definition. That would imply that a legislator has a certain extent of authority or power to raise their own effectiveness score. Put a different way, are the most effective legislators inevitably the individuals who lead the House of Representatives or the Senate, the power brokers, those who have been in committee chairs forever and always rack up the high score by virtue of position, or not?

Craig Volden:

We went in with the expectation that we would find that a tenth-term majority party]]>The topic of this episode is, “What is legislative effectiveness?”

We voters often say that we want our senators and members of Congress to do things, and preferably, the right things. We tend to dislike it when we see people on Capitol Hill who are all talk and no action. And in theory, we should vote out of office those lawmakers who are ineffective.

Let me have a caveat here. To be sure, there are some legislators who have turned noise making into a profitable brand, and they do use it to get reelected again and again. But in my 20 years of watching Capitol Hill, it's my estimate that they comprise a small percentage of the total membership. Most people in Congress are, to varying degrees, trying to get things done. So how, then, are we voters supposed to tell which of these legislators are effective and which are not?

To help me answer that question, I have with me Craig Volden. He is a professor of Public Policy and Politics at the University of Virginia. Dr. Volden is the author of many publications. Critically for this podcast's purpose, he is the founder and co-director of the Center for Effective Lawmaking, which produces scores of legislator effectiveness that you can find at: thelawmakers.org.

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it. But Congress is essential to our republic. It's a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be.

And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I'm your host, Kevin Kosar, and I'm a resident scholar at the American Enterprise Institute, a think tank in Washington DC.

Welcome to the program.

Craig Volden:

Thanks so much for having me. It is a delight to join you, Kevin.

Kevin Kosar:

So let's cut straight to the topic of the program. What is legislative effectiveness?

Craig Volden:

This is something that I have been thinking about for a long time working with Professor Alan Wiseman at Vanderbilt University. We wrote a book on the subject about a decade ago called Legislative Effectiveness in the United States Congress: The Lawmakers.

In that book, we defined legislative effectiveness as, “the proven ability to advance a member's agenda items through the legislative process and into law.” So the key elements of “legislative effectiveness”—proven ability, the agenda items of the member, advancing into law—are in there.

Kevin Kosar:

So as the title of the book indicates, it really does focus on the lawmaking function of an elected official.

Craig Volden:

That's right.

And here, Alan and I founded the Center for Effective Lawmaking. And we like to stay in our lane—it is not the “Center for Effective Oversight” or “Center for Effective Communication with Constituents.” The Center is about lawmaking: what it takes to move those bills into law in the Congress and increasingly now in the state legislatures.

Kevin Kosar:

So you mentioned there was a book about a decade ago. In my intro of you, I mentioned the website, thelawmakers.org.

When did that launch, and what was the motivation behind putting that out there?

Craig Volden:

Our book came out in 2014, and there was certainly some academic interest. But there was also some broader level of interest among members of Congress, in the good governance community, and some private foundations. We were blessed enough to get some grant money and to have a conversation about whether we wanted to continue our research on effective lawmaking into the future and, if so, did we want it to be a purely academic exercise or were we interested in maybe more engagement with Congress and with the good governance community? We are both at career stages after tenure where we can combine those—do research and hopefully make that research of use to others.

As part of that, we looked into what would be the best way to make that contribution, and decided that setting up the Center for Effective Lawmaking—a partnership between Vanderbilt University and the Frank Batten School of Leadership and Public Policy at the University of Virginia—made a lot of sense. We have, for example, two dozen faculty affiliates at a variety of colleges, universities, and think tanks, an annual conference, a working paper series, public release of our scores on thelawmakers.org, a small grant competition, etc.—all of the things on the research end that are really helpful to building up a community of knowledge.

On the engagement front, we—along with our good governance partner organizations—generate a new member guide and get involved in orientation materials for new members coming to Capitol Hill. We speak with a variety of organizations that are trying to get people to run for Congress who would be effective once they get there or institutional reformers who are thinking about how to how to make a better Congress.

We aim to be grounded in the research, but simultaneously be of use to the good governance community and to Congress itself.

Kevin Kosar:

Yes. A book is a static creation that cannot be updated unless you release a new edition—you cannot insert new data; you cannot put information on new members of Congress. So a website has got clear attraction to it. Everyone should know also that the website is not behind a paywall—anybody can go take a look at thelawmakers.org.

Now put in terms for non-political scientists out there, how do you measure legislative effectiveness? Do you just count the number of laws that a member's name is attached to as a sponsor or cosponsor? What is the method?

Craig Volden:

We returned to that definition—“proven ability to advance a member's agenda through the legislative process and into law”—to think clearly about how we would objectively measure that.

Prior to our work, there was just the counting up of laws. There was some subjective, “Let's do a survey and see who people think is effective.” We were more interested in a holistic measure, so we actually combine 15 metrics in a weighted average based on the number of bills that any member sponsors, how far they move through the lawmaking process, and how important they are in a substantive sense.

We track five stages of the lawmaking process. For each member of Congress, how many bills did he or she put forward as the main sponsor? But then, how many of those bills received action in committee—a hearing, a markup, a subcommittee vote? How many of them received action beyond committee on the floor of the House or the floor of the Senate—getting to a vote? How many of them passed their home chamber, and how many of them became law?

Since we know that not all of these bills are the same, we downgrade the commemorative bills (e.g., post office naming, minting of coins) and we upgrade the substantive and significant bills—those that get a lot of media attention. These five stages of the lawmaking process and three levels of bill significance combined to 15 weighted average metrics. The things that are rarer—having a law, having a substantive and significant law—then have a much greater weight on one's legislative effectiveness.

We are also recognizing that we are increasingly moving from passing stand-alone bills to conglomerations of bills and ideas into law. The omnibus budget bills or the National Defense Authorization Act (the NDAA) often has embedded within it dozens or hundreds of different pieces of legislation. We are now able to now detect that and give credit for it by using plagiarism style software to find the language that is in bills and see whether it appears in laws later on.

The data available to us is great such that on our website, we are able to give scores for every member of Congress in each Congress from the 1970s right up through the most recently completed 117th Congress and in 21 different issue areas as well. So somebody wondering, ‘Who's really getting something done on defense or in education or in health care?’ can find answers to that and a lot more on our website.

Kevin Kosar:

So I have heard your definition of legislative effectiveness, which is a very individual-centered definition. That would imply that a legislator has a certain extent of authority or power to raise their own effectiveness score. Put a different way, are the most effective legislators inevitably the individuals who lead the House of Representatives or the Senate, the power brokers, those who have been in committee chairs forever and always rack up the high score by virtue of position, or not?

Craig Volden:

We went in with the expectation that we would find that a tenth-term majority party committee chair would outscore a first term minority party member. And certainly, we find that. But what is more fascinating to us is what members do individually—what legislators can do from Day One to become more effective. We have dedicated a lot of our research around that.

Let me give a few examples. We have looked at freshman members of Congress and the congressional staff that they hire—how many years of experience on Capitol Hill did those staff members have? About a quarter of all new members of Congress hire legislative staff who have zero years of Capitol Hill experience. Others hire a very experienced staff, and those who hire an experienced staff tend to be much more effective, as you could imagine.

I mentioned that we scored people on 21 different issue areas. We also looked at the legislative portfolios that members are putting forward. Some members of Congress are generalists—they sponsor bills in 21 different issue areas. Some are much more specialists. They become the go-to person on an issue such as health or education. The most active members find that sweet spot, where they dedicate more than half of their agenda to something where they have expertise. It might be something from their background career, they have a committee assignment in that area, or their constituents care about it. They are not pulled between making electoral and lawmaking considerations, so they're really specialists in those key areas.

The third thing I would point to as an example is we find that the most effective members of Congress are pretty bipartisan. They attract to their bills members of the other party. That is certainly helpful if you are in the minority party, but what we found is that majority party members that build that broad bipartisan coalition are more effective as members of Congress, and that effectiveness has been consistent even in recent years when we know Congress has been quite polarized.

Kevin Kosar:

Yes, the bipartisan angle is important not least because the margins in the two chambers tend to be very narrow. It is not easy to get your party to be unanimous in support of something, and it is always nice if you can get support from across the aisle.

But it is inevitably a question that gets asked on Capitol Hill: when staff are shopping around a boss's bill, one of the responses they get from other offices is, “Is somebody in the other party cosponsoring or supporting this?” People want to know whether this is going to be a tough effort or an impossible one.

How often are you surprised by the results? Do you often get scores where you think, ‘I've never heard of this person, and yet this person is scoring high,’ or, ‘This person always gets media attention as a serious policymaker, but the numbers don't bear it up.’

Craig Volden:

There is some up and down by the nature of what actually became law in a given session of Congress, but we were partly surprised by the remarkable consistency of who is at the top of our lists from one Congress to the next. But we are more interested in discerning the broader patterns than the individual blips up and down, and the surprises often come to us in those patterns.

Let me give you an example of something that we have found recently and are talking about quite a bit. Over the past 50 years, when Democrats have been in the majority party, it is the liberal wing of the Democratic Party that has its most effective members. But when Republicans have been the majority party, the conservative wing of the Republican Party is actually the least effective.

What's going on there? Why are conservative Republicans having a tough time? It is linked to a variety of those things that we have been talking about already. The conservative turn in the Republican Party has been fairly recent across our 50 year scale. The most conservative members of the Republican Party are not particularly senior. They are not likely to hold committee chairs. As such, because we know those are key factors in moving legislation forward, the institutions are not set up to move in those new directions as strongly. Moreover, a lot of those conservative members of Congress are not doing the work of building coalitions across party lines, so that lack of bipartisanship is harming them as well.

What's going on there? Why are conservative Republicans having a tough time? It is linked to a variety of those things that we have been talking about already. The conservative turn in the Republican Party has been fairly recent across our 50 year scale. The most conservative members of the Republican Party are not particularly senior. They are not likely to hold committee chairs. As such, because we know those are key factors in moving legislation forward, the institutions are not set up to move in those new directions as strongly. Moreover, a lot of those conservative members of Congress are not doing the work of building coalitions across party lines, so that lack of bipartisanship is harming them as well.

The idea that conservative Republicans are not finding Congress very receptive to the bills they are putting forward—even when they are in the majority—helps us explain and understand why that set of individuals has been asking for more power, looking for reforms, and questioning whether the speaker is on their side. Do they have a strong case that their ideas are not moving forward through Congress? In fact, yes, they do.

Kevin Kosar:

Since we're talking about the elected officials, have any of them taken notice of these scores? What about media and voters? Are they picking up on these legislative effectiveness scores?

Craig Volden:

We release the scores at the end of each Congress—Congresses end in January, and we try to get the scores out there in February. When we do, we get a lot of press coverage. Those who are on our top 10 lists tweet about it, write that up, or promote it. And that finds its way in many cases into campaigns. High performers tend to use those scores to promote their case. I think back to the Iowa caucuses 4 years ago when Amy Klobuchar—as she was running for the Democratic nomination—had a series of t-shirts that she was handing out there saying she was the most effective Democrat in the Senate. On the other end, competitors against those who had low legislative effectiveness scores tend to use those in campaigns as well. The other way that that members and media take notice is through some of those activities and programming that we tend to do on Capitol Hill in line with our mission and with our partners. Our new member guide is there on the orientation activities that we do for newly elected members of Congress. It is not so much how can I manipulate the system to get a higher score, but how can I actually be a more effective member of Congress.

And so that advice about setting up and tailoring one's agenda and building out coalitions and all of the rest is, I think, good advice. It is now advice well-grounded in research and something that many members of Congress are paying attention to.

Kevin Kosar:

That is great: academic research that is affecting reality in a positive fashion.

There are many ways to measure our national legislature. Why is legislative effectiveness such an important concept and metric? Why is it something that you have been willing to spend so much of your time on and develop?

Craig Volden:

At the Center for Effective Lawmaking, we have a vision statement as some organizations do. We envision a Congress comprised of effective lawmakers, strong institutional capacity, and the incentive structure needed to address America's greatest public policy challenges.

I am sure your listeners would agree that we are not there yet—maybe nowhere near there yet—but our focus on legislative effectiveness and the work of our two dozen faculty affiliates seems to be offering a path forward. One of our major research endeavors is what we call our Building a Better Congress project. The Building a Better Congress project has three main buckets.

The first, what we call identification: what are the traits of people who—if they were to choose to run for Congress—would likely be effective when they're there? Our research, for example, finds that—all else equal—women are more effective than men, which could be used to help organizations that are trying to get more women to run for Congress. Our research suggests that there are certain state legislatures that are working really well as training grounds where members of Congress who come from those legislatures seem to hit the ground running. That tells us something about how our system of federalism works and could be promoted.

The first, what we call identification: what are the traits of people who—if they were to choose to run for Congress—would likely be effective when they're there? Our research, for example, finds that—all else equal—women are more effective than men,...]]>104e139d-c49b-4d02-bb2d-27b99042c322Mon, 05 Feb 2024 06:00:00 -050024:38falsefull4343What Is the State of the Union Address, and Why Does Congress Host It? (with Matt Glassman)The topic of this episode is, What is the State of the Union Address, and Why Does Congress Host It?

Once per year, the President of the United States comes to the U.S. Capitol to deliver a speech known as the State of the Union Address. Usually this happens in late January or early February, but it has occurred as late as March 1.

Both members of the House of Representatives and Senators assemble for this speech, along with nearly all members of the president’s cabinet. Justices of the Supreme Court also are there, as are some other individuals. In modern times it has become quite a spectacle—with television cameras beaming the event to millions of homes.

To discuss this grand affair, I have with me Matt Glassman. He is a senior fellow at the Government Affairs Institute, where he studies Congress. Prior to joining the Institute, Matt worked with me at the Congressional  Research Service for ten years. There he wrote about congressional operations, separation of powers, appropriations, judicial administration, agency design, and congressional history.

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be, and that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington D.C.

Matt, welcome to the podcast.

Matt Glassman:

Thanks for having me.

Kevin Kosar:

Let’s start with the why. Why does Congress host a state of the union address? Does the U.S. Constitution require it?

Matt Glassman:

The Constitution doesn't require, per se, the State of the Union Address as we know it now, but Article 2, Section 3 does sort of contemplate the idea of a State of the Union message. It says the president “shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient.”

So this idea of the president reporting back to Congress on what's going on in the administration and what he would like to see happen in the legislature is contemplated in the Constitution. So, yes, it is there. It's not required to happen every year; it says from time to time. That's been interpreted as annually, but we don't have a State of the Union message every year.

Sometimes presidents don't do it in their last year in office. Sometimes presidents don't do it right after they're inaugurated—they just deliver a different message to Congress. But the idea is rooted in the Constitution and in Anglo-American tradition. It was very traditional for the monarchy to go speak to Parliament as it opened in English history as well.

Kevin Kosar:

So it's discretionary, which means Congress could—if it chooses—refuse to hold a State of the Union address. One could imagine— in these high partisanship times—a House with a Democratic majority that might have refused to allow President Trump to appear or a Republican majority of the House could refuse President Biden's wish to come and speak.

And for president to actually show up for a State of the Union, there's got to be an actual resolution passed, right?

Matt Glassman:

Yes, in theory. Certainly, for the president to come stand on the House floor and talk, he is going to need either the rules of the House and Senate or a specific resolution from the House and Senate to approve that. The President of the United States does not have any right to be in the House of Representatives or in the Senate giving a speech under the House rules. In the Senate rules, the president currently has floor privileges to the chamber, but it is a function of the rules. There is nothing in the Constitution that would allow the president to come give this message in person.

So first, they work out behind the scenes when the president has a date available that works for everybody. Then the Speaker of the House formally sends a letter to the president inviting him to come over. Then a concurrent resolution is passed by the two chambers setting up the joint session where they'll hear the president's address.

It's absolutely correct that, that you could imagine animosity between Congress and the president getting so high that there wasn't a State of the Union as we know it. The president could still send over a letter—that was traditionally how it was done for 19th century. During the Trump administration, people saw the possibility of Nancy Pelosi saying, “You're not coming over. Send a letter and tell us what you think, but we're not giving you a stage in our chamber to do it.”

Now, of course that didn't happen and there's lots of reasons both politically and normatively that you don't want that sort of partisan animosity to upend the State of the Union, but it's totally plausible and you could imagine a situation where it happened.

Kevin Kosar:

And I guess with the chambers being presently divided—Democratic control in the Senate, Republican control in the House—if both chambers don't agree, then it doesn't happen. The president doesn't get to come over, right?

Matt Glassman:

Doesn't get to come over to speak at a joint session that the current resolutions and practice contemplate. But imagine—for instance—that the House Republicans decided for whatever reason that they didn't want Biden to come over for a State of the Union message this year. I think it's totally plausible that Biden might come over to the Senate and deliver his State of the Union address there. Again, that could be filibustered too, in theory—you can imagine situations. But just because you can't get a joint session going in Congress doesn't mean the president can't come over and give an address in one of the chambers. All sorts of combinations are possible.

And this is a level of partisan animosity that even Trump versus the House Democrats didn't create, so it would have to be something sort of even more extraordinary than anything we've seen over the last decade in order to break this tradition.

Now, could you imagine a president of the United States deciding he was done with these in person things, and just sending a letter instead and having someone in his party read it on the floor the way they did in the 19th century? That's also plausible. That would require less partisan animosity. It would just require a president who saw things differently.

I don't think that's likely either. I think most of the time the president believes the state of the Union address is a politically advantageous moment for him and the administration if they do it in person. The letter would sort of downplay it a lot, so I don't see that happening either anytime soon.

Kevin Kosar:

I suppose one could imagine this trend line where thanks to technological advancements over the last 120 years, it's been easier and easier for a president to “go public.” You could have a president who just decides to sit in the White House, do a speech to the nation that way, and basically call up the State of the Union and send over a piece of paper and be like, “Okay, I'm just not putting up with you people.”

Matt Glassman:

Yeah, I think that’s totally plausible. I think the trappings of the State of the Union address give it a little more sort of public influence—a little more. Sometimes in Washington, you get a sense that everybody is watching something like this when in reality, very few people are watching—the Monday Night Football game will vastly outdo the Union address in ratings. But I do think the State of the Union address will get a higher audience than a typical presidential address from the Oval Office or from wherever, so the president see that as somewhat advantageous to getting their message out.

But you can imagine lots of different ways to deal with the State of the Union address, where the climate in the country around a particular issue makes a president decide to completely upend what we expect from a State of the Union Address and just give an address on one topic. We've seen that on occasion in presidential addresses during moments of crisis. Buchanan's address in December of 1860 at the opening of Congress was almost entirely about the slave crisis. Lincoln's First Inaugural was almost entirely about secession. If the moment was more of a crisis situation, you can imagine presidents giving a very different type of address.

Kevin...]]>The topic of this episode is, What is the State of the Union Address, and Why Does Congress Host It?

Once per year, the President of the United States comes to the U.S. Capitol to deliver a speech known as the State of the Union Address. Usually this happens in late January or early February, but it has occurred as late as March 1.

Both members of the House of Representatives and Senators assemble for this speech, along with nearly all members of the president’s cabinet. Justices of the Supreme Court also are there, as are some other individuals. In modern times it has become quite a spectacle—with television cameras beaming the event to millions of homes.

To discuss this grand affair, I have with me Matt Glassman. He is a senior fellow at the Government Affairs Institute, where he studies Congress. Prior to joining the Institute, Matt worked with me at the Congressional  Research Service for ten years. There he wrote about congressional operations, separation of powers, appropriations, judicial administration, agency design, and congressional history.

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be, and that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington D.C.

Matt, welcome to the podcast.

Matt Glassman:

Thanks for having me.

Kevin Kosar:

Let’s start with the why. Why does Congress host a state of the union address? Does the U.S. Constitution require it?

Matt Glassman:

The Constitution doesn't require, per se, the State of the Union Address as we know it now, but Article 2, Section 3 does sort of contemplate the idea of a State of the Union message. It says the president “shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient.”

So this idea of the president reporting back to Congress on what's going on in the administration and what he would like to see happen in the legislature is contemplated in the Constitution. So, yes, it is there. It's not required to happen every year; it says from time to time. That's been interpreted as annually, but we don't have a State of the Union message every year.

Sometimes presidents don't do it in their last year in office. Sometimes presidents don't do it right after they're inaugurated—they just deliver a different message to Congress. But the idea is rooted in the Constitution and in Anglo-American tradition. It was very traditional for the monarchy to go speak to Parliament as it opened in English history as well.

Kevin Kosar:

So it's discretionary, which means Congress could—if it chooses—refuse to hold a State of the Union address. One could imagine— in these high partisanship times—a House with a Democratic majority that might have refused to allow President Trump to appear or a Republican majority of the House could refuse President Biden's wish to come and speak.

And for president to actually show up for a State of the Union, there's got to be an actual resolution passed, right?

Matt Glassman:

Yes, in theory. Certainly, for the president to come stand on the House floor and talk, he is going to need either the rules of the House and Senate or a specific resolution from the House and Senate to approve that. The President of the United States does not have any right to be in the House of Representatives or in the Senate giving a speech under the House rules. In the Senate rules, the president currently has floor privileges to the chamber, but it is a function of the rules. There is nothing in the Constitution that would allow the president to come give this message in person.

So first, they work out behind the scenes when the president has a date available that works for everybody. Then the Speaker of the House formally sends a letter to the president inviting him to come over. Then a concurrent resolution is passed by the two chambers setting up the joint session where they'll hear the president's address.

It's absolutely correct that, that you could imagine animosity between Congress and the president getting so high that there wasn't a State of the Union as we know it. The president could still send over a letter—that was traditionally how it was done for 19th century. During the Trump administration, people saw the possibility of Nancy Pelosi saying, “You're not coming over. Send a letter and tell us what you think, but we're not giving you a stage in our chamber to do it.”

Now, of course that didn't happen and there's lots of reasons both politically and normatively that you don't want that sort of partisan animosity to upend the State of the Union, but it's totally plausible and you could imagine a situation where it happened.

Kevin Kosar:

And I guess with the chambers being presently divided—Democratic control in the Senate, Republican control in the House—if both chambers don't agree, then it doesn't happen. The president doesn't get to come over, right?

Matt Glassman:

Doesn't get to come over to speak at a joint session that the current resolutions and practice contemplate. But imagine—for instance—that the House Republicans decided for whatever reason that they didn't want Biden to come over for a State of the Union message this year. I think it's totally plausible that Biden might come over to the Senate and deliver his State of the Union address there. Again, that could be filibustered too, in theory—you can imagine situations. But just because you can't get a joint session going in Congress doesn't mean the president can't come over and give an address in one of the chambers. All sorts of combinations are possible.

And this is a level of partisan animosity that even Trump versus the House Democrats didn't create, so it would have to be something sort of even more extraordinary than anything we've seen over the last decade in order to break this tradition.

Now, could you imagine a president of the United States deciding he was done with these in person things, and just sending a letter instead and having someone in his party read it on the floor the way they did in the 19th century? That's also plausible. That would require less partisan animosity. It would just require a president who saw things differently.

I don't think that's likely either. I think most of the time the president believes the state of the Union address is a politically advantageous moment for him and the administration if they do it in person. The letter would sort of downplay it a lot, so I don't see that happening either anytime soon.

Kevin Kosar:

I suppose one could imagine this trend line where thanks to technological advancements over the last 120 years, it's been easier and easier for a president to “go public.” You could have a president who just decides to sit in the White House, do a speech to the nation that way, and basically call up the State of the Union and send over a piece of paper and be like, “Okay, I'm just not putting up with you people.”

Matt Glassman:

Yeah, I think that’s totally plausible. I think the trappings of the State of the Union address give it a little more sort of public influence—a little more. Sometimes in Washington, you get a sense that everybody is watching something like this when in reality, very few people are watching—the Monday Night Football game will vastly outdo the Union address in ratings. But I do think the State of the Union address will get a higher audience than a typical presidential address from the Oval Office or from wherever, so the president see that as somewhat advantageous to getting their message out.

But you can imagine lots of different ways to deal with the State of the Union address, where the climate in the country around a particular issue makes a president decide to completely upend what we expect from a State of the Union Address and just give an address on one topic. We've seen that on occasion in presidential addresses during moments of crisis. Buchanan's address in December of 1860 at the opening of Congress was almost entirely about the slave crisis. Lincoln's First Inaugural was almost entirely about secession. If the moment was more of a crisis situation, you can imagine presidents giving a very different type of address.

Kevin Kosar:

Yeah. So per the Constitution, requiring the executive to report to Congress had two overt purposes. First, getting information from him since the president oversees agencies and has access to their data. It could be useful if he could share this information with the legislature because there is a principal-agent relationship between the legislature and the president. But it's also an opportunity for him to suggest policies for Congress to consider.

What about today? Does the speech have purposes beyond that today?

Matt Glassman:

One thing to know is that those two original purposes reflect the old congressional calendar. One thing to keep in mind was that a typical annual address of the president—which is what they called the State of the Union before it got its modern nomenclature—typically happened in December right after Congress met.

Under the old calendar, Congress had often been out of session since the previous March—or if it was the second session, they had been out of session typically since around June. So there really was a lot for the president to say. The administration had been the government in total for a period of six or even nine months, in some cases, when these annual addresses happened.

So there was literally a lot to catch people up on. There was sort of news you could break about what was going on. I think that is a lot less true now with Congress in session year-round and oversight being an ongoing process. I do not think there's a whole lot of surprises in the president's annual address about the actual state of the union.

In the same way, I think communicating policies for Congress to consider also has a little less oomph than it did in the mid-19th century, simply because—again—Congress is around full time and the president and his administration are proposing policies all the time. So those two sort of natural purposes that the Constitution contemplates probably have shrunk a little bit in their value.

But of course there are other things that the State of the Union address provides. One is an opportunity for the president to do a lot of interest and agency group politicking: to come up with a distributive list of goodies that he can mention to promote or give returns back to different groups in his coalition—be it his partisan political coalition or his administrative coalition of different agencies that he needs to keep happy.

I think this leads to the most important thing about the State of the Union address is that it is what political scientists might call a “focusing event.” The administration has a deadline by which they have got to decide what they believe about certain issues. That is a good thing for the administration. A lot of times in the executive branch, you can sit around debating stuff with no end, but a focusing event forces the agencies to come up with their policies. It forces the White House to choose what their policies are—not only as a priority matter of what their agenda is, but actually what the policies are.

If President Biden comes up to Congress for a State of the Union address in two months and talks about his border policy, he is going to have to have a border policy. That is a good thing—it forces the administration to figure out what its policy is. To that point, it is actually an important deadline on the congressional-executive calendar. Note that it nowadays happens, roughly right before sort of the opening of a budget season. The president's budget usually comes out shortly after the State of the Union, so you can see the address as tied to the administration’s priorities and what it wants to put in its budget.

Kevin Kosar:

And these days—as the head of whichever party he is within—the president is setting the course for the party and reframing the brand in the public's eye to some degree, perhaps in anticipation of the next election. So there is a bit of that PR exercise going on as well.

As I mentioned in my introduction, it is a remarkable event to have members of all three branches of government piling into the same building. There is a whole bunch of other folks too, like members of the diplomatic corps. That prompts a gruesome thing to contemplate—but we got to because terrorism is a fact of modern life. Isn't it a big risk to the continuity of government to have president, vice president, the whole Supreme Court, and so much of the legislative branch all together in this one place? And have they done any thinking about how to mitigate this risk, so we don't end up with a country that has no functioning government?

Matt Glassman:

I think that is obviously a concern. It is quite famous that there is sort of the designated survivor—someone in the President’s Cabinet who doesn't go to the State of the Union address, who stays away from the Capitol and indeed stays away from Washington during the Address.

That was put in place in a Cold War sense where all of a sudden there were ballistic missiles that could blow up the entire city at once to which we had no defense. In some ways, it is more symbolic than useful. It is not clear to me that like the Secretary of Labor would have a whole lot of political authority in the wake of that sort of awful tragedy.

But I do think it is something worth contemplating. I do not think the answer is sort of distribute the people and have the state of the State of the Union address remotely for various people. I think it is important the government comes together, but it does highlight sort of the security concerns. The legislature is a decentralized system to begin with, which is why we do not see a lot of assassinations of legislators—it does not solve you a lot politically. So the time that members of Congress and Congress itself is in danger is when they are all together.

That is why the security on the floor of the House and Senate is what it is. It is why the security following Congress around when it sort of travels in mass. But obviously bringing the administration into sort of ups the ante to it. There is probably not a regularly scheduled event in the United States that has a higher security level than the State of the Union address. If you are ever in downtown Washington on the night of State of the Union, you cannot get within a block of the Capitol—the perimeter really is the biggest perimeter you can imagine.

That does not mitigate all threats, but I do think that there's enough value in the State of the Union Address—and enough value in bringing the whole government together at least once a year—that whatever risks there are that can't be mitigated by the security measures in place just have to be accepted because I think to not allow the government to come together in a whole would probably lose some of the symbolic value of the State of the Union Address.

Kevin Kosar:

Alright, that elides nicely into criticisms of the modern State of the Union Address. I, for one, have groused that it confuses the American public into thinking that the president has way more power than he actually has, and it contributes to this sort of misunderstanding of our system—that the president could just get up there and wave magic wands and make policy happen as opposed to it having to be worked through the legislature in most instances.

Some years ago you wrote a blog post about the State of the Union and here's one thing you wrote in it:

“As many very smart people will undoubtedly tell you today, the State of the Union address doesn’t really matter much. Brendan Nyhan reminded us last year that the instant polling is worthless, that the President doesn’t actually often get an approval bounce, and that unlike a debate there’s no chance of an unscripted moment. John Sides reminded us that any policy or agenda effects from the speech are small at best. And Ezra Klein notes today that the one dimension on which the address may have a strong impact—laying out the President’s policy agenda—is basically a non-issue in an election year with a divided Congress.”

Criticisms—you note them, and I have made mine. Yet you still think it is important. Why is the State of the Union address—in his current modern format—important and worth doing?

Matt Glassman:

I think it is important...]]>8b4c7654-6bf3-4062-8e05-2d1bc748f6bfMon, 08 Jan 2024 06:00:00 -050021:36falsefull4242What Is Congressional Capacity, and Why Does It Matter? (with Kevin Kosar)The topic of this episode is, “What is congressional capacity, and why does it matter?”

As regular listeners know, almost inevitably I have a guest on my show. But this episode, you get just me. The reason is simple: I have been working on congressional capacity for years, and I would like to share my thoughts and hear your feedback.

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be, and that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington D.C.

It is probably not news to you that the American public is not pleased with Congress. According to Gallup, fewer than 8 in 10 Americans approve of the job Congress is doing.

For sure, part of the dourness is not really about Congress. People are annoyed because what media they see on Congress focuses heavily on conflict and crazy behavior by legislators. The news rarely covers instances of Congress doing good things.

That said, it is still fair to say that Congress is not doing well. Most obviously, it has failed to tackle some of the biggest problems facing the nation, like immigration, and often sits back and lets the executive branch and courts wade into these issues. Which is not how our system is supposed to work.

So what is wrong with Congress?

Many scholars, media, and members of the public diagnose the ills of Congress think in terms of the Three P’s: People, parties, and polarization.

It’s Kevin McCarthy’s fault; it’s Chuck Schumer’s fault. If we had better people, we would have a better Congress.

Others point to the parties. The Democrats are out-of-touch liberals. The Republicans are proto-authoritarians. The Democrats and Republicans have sorted into ideologically conformist enterprises. Gone are the days when we had liberal Republicans and conservative Democrats.

Still others emphasize polarization as the cause for Congress’ failures. We are a nation of red and blue voters and states, so Congress itself is polarized. Gridlock and fighting is the result of Americans being grossly in disagreement with one another.

There is some truth to all these contentions. But these explanations have their own shortcomings.

Critically, the Three P’s ignore an important unit of analysis: the institution itself.

The U.S. Congress is an organization—a firm. Like any firm—a business firm, a school, or a music band, Congress’ performance is greatly affected by its capacity. It can only do as much as it is capable of doing.

In the congressional context, capacity can be defined as “the human and physical infrastructure Congress needs to resolve public problems through legislating, budgeting, holding hearings, and conducting oversight.”  Some specific aspects of congressional capacity are its funding, its processes for executing tasks (e.g., how bills go to the floor), its technology for completing its work, how it internally organizes itself, its leadership structure, and its people.

So that is the framework I and my coeditors and coauthors adopted. And this lens for looking at Congress has proven illuminating. What you see is an institution that has experienced escalating demands upon it over the past 50 years yet has done little to empower itself to meet the escalating demands.

Escalating demands

Over the past 50 years, the day-to-day demands on Congress have skyrocketed.

By law, Congress must fund and oversee 180 federal agencies and 4 million civilian and military employees that administer thousands upon thousands of policies and programs affecting the public. Annual spending is about $6.5 trillion, which is seven times higher than it was in 1980 and a dozen times larger than the outlays by the world’s largest corporation, Walmart.

The Senate is obligated to review and vote upon 300 executive branch nominees and thousands of nominees to independent agencies, the military, and the service academies (e.g., the US Naval Academy).

The immensity of federal activity also leads to more demands from the public. In the average year, Americans—whose numbers have swelled 45 percent since 1980—write, email, or otherwise contact Congress between 25 million and 30 million times per year, which amounts to more than 46,000 communications per legislator. That is to say nothing of the escalating demands from interest groups and lobbyists to meet with legislators.

And let me say one more thing about voters: the average member of the House of Representatives has 760,000 constituents. Yet he serves them with a staff of fewer than 20. And the situation in the Senate is even more challenging since there are only 100 senators (many quite aged) who have to collectively serve 330 million Americans.

Yet, very little congressional reform to bolster capacity.

The last major reforms of the institution took place in the early 1970s. And crazily enough, about 30 years ago the people on Capitol Hill thought the public would be pleased if they downsized the workforce of the legislative branch.

Today, legislators have fewer staff (10,000) than they did in 1980 (11,000).

Speaking of staff, the average staffer is 25-29 years old, and most of them will quit their jobs on the Hill before they hit 7 years of experience. They can find more pleasant and more lucrative jobs in the executive branch or the private sector.

Congressional committees, which are supposed to be the engines for policymaking and oversight, also have fewer staff (3,100 in 1980 and 2,300 today).

Congress also has fewer nonpartisan experts working at the Congressional Research Service and other legislative-branch support agencies that help legislators make policy and conduct oversight (from 11,400 in 1980, this figure is down to 7,000 today).

But the troubles do not end there. Consider the committee system, the division of labor with the organization. Which committees work on what legislation—that has little changed in the past 50 years. The House, remarkably, select the chairpersons who lead each committee based heavily upon whether they are good fundraisers and dependable partisans. Knowing something about the subject matter and being good at bargaining with members of the opposite party, sadly, are not the sole criteria for selection to these important positions. The way committees hold hearings looks much as they did 75 years ago. Legislators sit on the dais with one party on one side and the other party on the other side. And they give each witness 5 minutes to deliver a speech and then lob questions at them.

Then there is the legislative process. How about that budget process? We almost had another shutdown on Saturday. We still might in six weeks. The budget process is 50 years old and has very weak incentives for legislators to complete it in an orderly and timely manner. So they do not.

And I would be remiss if I did not talk to you about technology. Newly arrived legislators are often shocked at the sorry state of the technology they have. They are shocked that legislation does not come with “track changes” nor does it typically make clear how it is changing current laws or reference existing programs that serve the same purpose.

Take another example. A few years ago, I was talking to the legislator and he said he was astonished that when he showed up to Congress to work in the House of Representatives, he was handed a pager. He was told that this is members of Congress are notified through when it was time for them to vote. His response was something along the lines of, “why isn't there an app for that?”, but he did not get a good answer. On technology, work processes, internal division of labor, etc., congressional capacity is not where it needs to be.

Conclusion

To be sure, there is some good...]]>The topic of this episode is, “What is congressional capacity, and why does it matter?”

As regular listeners know, almost inevitably I have a guest on my show. But this episode, you get just me. The reason is simple: I have been working on congressional capacity for years, and I would like to share my thoughts and hear your feedback.

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be, and that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington D.C.

It is probably not news to you that the American public is not pleased with Congress. According to Gallup, fewer than 8 in 10 Americans approve of the job Congress is doing.

For sure, part of the dourness is not really about Congress. People are annoyed because what media they see on Congress focuses heavily on conflict and crazy behavior by legislators. The news rarely covers instances of Congress doing good things.

That said, it is still fair to say that Congress is not doing well. Most obviously, it has failed to tackle some of the biggest problems facing the nation, like immigration, and often sits back and lets the executive branch and courts wade into these issues. Which is not how our system is supposed to work.

So what is wrong with Congress?

Many scholars, media, and members of the public diagnose the ills of Congress think in terms of the Three P’s: People, parties, and polarization.

It’s Kevin McCarthy’s fault; it’s Chuck Schumer’s fault. If we had better people, we would have a better Congress.

Others point to the parties. The Democrats are out-of-touch liberals. The Republicans are proto-authoritarians. The Democrats and Republicans have sorted into ideologically conformist enterprises. Gone are the days when we had liberal Republicans and conservative Democrats.

Still others emphasize polarization as the cause for Congress’ failures. We are a nation of red and blue voters and states, so Congress itself is polarized. Gridlock and fighting is the result of Americans being grossly in disagreement with one another.

There is some truth to all these contentions. But these explanations have their own shortcomings.

Critically, the Three P’s ignore an important unit of analysis: the institution itself.

The U.S. Congress is an organization—a firm. Like any firm—a business firm, a school, or a music band, Congress’ performance is greatly affected by its capacity. It can only do as much as it is capable of doing.

In the congressional context, capacity can be defined as “the human and physical infrastructure Congress needs to resolve public problems through legislating, budgeting, holding hearings, and conducting oversight.”  Some specific aspects of congressional capacity are its funding, its processes for executing tasks (e.g., how bills go to the floor), its technology for completing its work, how it internally organizes itself, its leadership structure, and its people.

So that is the framework I and my coeditors and coauthors adopted. And this lens for looking at Congress has proven illuminating. What you see is an institution that has experienced escalating demands upon it over the past 50 years yet has done little to empower itself to meet the escalating demands.

Escalating demands

Over the past 50 years, the day-to-day demands on Congress have skyrocketed.

By law, Congress must fund and oversee 180 federal agencies and 4 million civilian and military employees that administer thousands upon thousands of policies and programs affecting the public. Annual spending is about $6.5 trillion, which is seven times higher than it was in 1980 and a dozen times larger than the outlays by the world’s largest corporation, Walmart.

The Senate is obligated to review and vote upon 300 executive branch nominees and thousands of nominees to independent agencies, the military, and the service academies (e.g., the US Naval Academy).

The immensity of federal activity also leads to more demands from the public. In the average year, Americans—whose numbers have swelled 45 percent since 1980—write, email, or otherwise contact Congress between 25 million and 30 million times per year, which amounts to more than 46,000 communications per legislator. That is to say nothing of the escalating demands from interest groups and lobbyists to meet with legislators.

And let me say one more thing about voters: the average member of the House of Representatives has 760,000 constituents. Yet he serves them with a staff of fewer than 20. And the situation in the Senate is even more challenging since there are only 100 senators (many quite aged) who have to collectively serve 330 million Americans.

Yet, very little congressional reform to bolster capacity.

The last major reforms of the institution took place in the early 1970s. And crazily enough, about 30 years ago the people on Capitol Hill thought the public would be pleased if they downsized the workforce of the legislative branch.

Today, legislators have fewer staff (10,000) than they did in 1980 (11,000).

Speaking of staff, the average staffer is 25-29 years old, and most of them will quit their jobs on the Hill before they hit 7 years of experience. They can find more pleasant and more lucrative jobs in the executive branch or the private sector.

Congressional committees, which are supposed to be the engines for policymaking and oversight, also have fewer staff (3,100 in 1980 and 2,300 today).

Congress also has fewer nonpartisan experts working at the Congressional Research Service and other legislative-branch support agencies that help legislators make policy and conduct oversight (from 11,400 in 1980, this figure is down to 7,000 today).

But the troubles do not end there. Consider the committee system, the division of labor with the organization. Which committees work on what legislation—that has little changed in the past 50 years. The House, remarkably, select the chairpersons who lead each committee based heavily upon whether they are good fundraisers and dependable partisans. Knowing something about the subject matter and being good at bargaining with members of the opposite party, sadly, are not the sole criteria for selection to these important positions. The way committees hold hearings looks much as they did 75 years ago. Legislators sit on the dais with one party on one side and the other party on the other side. And they give each witness 5 minutes to deliver a speech and then lob questions at them.

Then there is the legislative process. How about that budget process? We almost had another shutdown on Saturday. We still might in six weeks. The budget process is 50 years old and has very weak incentives for legislators to complete it in an orderly and timely manner. So they do not.

And I would be remiss if I did not talk to you about technology. Newly arrived legislators are often shocked at the sorry state of the technology they have. They are shocked that legislation does not come with “track changes” nor does it typically make clear how it is changing current laws or reference existing programs that serve the same purpose.

Take another example. A few years ago, I was talking to the legislator and he said he was astonished that when he showed up to Congress to work in the House of Representatives, he was handed a pager. He was told that this is members of Congress are notified through when it was time for them to vote. His response was something along the lines of, “why isn't there an app for that?”, but he did not get a good answer. On technology, work processes, internal division of labor, etc., congressional capacity is not where it needs to be.

Conclusion

To be sure, there is some good news.

The House of Representatives created a Select Committee on the Modernization of Congress—which was a bipartisan effort to work on these reforms. That temporary committee worked for a few years and now is a subcommittee in the House that continues to budge reforms forward.

Perhaps of equal importance, I believe that our efforts have begun to help legislators, their staff, the media, and even some voters to recall an important truth: that Congress is the First Branch of our constitutional republic. It is the place where we engage in self-governance and work across and through our differences. And remembering that truth should give us the incentive to upgrade Congress’ capacity so that we can continue to have a representative democracy.

Thank you, and have a great day.

Thank you for listening to Understanding Congress, a podcast of the American Enterprise Institute. This program was produced by Jaehun Lee and hosted by Kevin Kosar. You can subscribe to Understanding Congress via Stitcher, iTunes, Google Podcasts, and TuneIn. We hope you’ll share this podcast with others and tell us what you think about it by posting your thoughts and questions on Twitter and tagging at @AEI. Once again, thank you for listening and have a great day.

My guest is Elliot Mamet. He is a Postdoctoral Research Associate and Lecturer at the Princeton School of Public and International Affairs. Previously, he served as an American Political Science Association Congressional Fellow. Elliot holds a Ph.D. in Political Science from Duke University.

Also important to note is that Dr. Mamet spent time working in the office of Washington, D.C. delegate, Eleanor Holmes Norton. All of which makes him a great person to ask the question, "Delegates to the House of Representatives: who are they and what do they do?"

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be, and that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington D.C.

Welcome to the podcast.

Elliot Mamet:

Thank you, Kevin. It's great to be here.

Kevin Kosar:

Let's start with a really simple question. Listeners are all too familiar with the fact that the House typically has 435 members. But they also have delegates. How many delegates are there to the House of Representatives?

Elliot Mamet:

Currently, there are five delegates to the House of Representatives. They serve from Washington, D.C., Guam, American Samoa, the U.S. Virgin Islands, and the Northern Mariana Islands. There's also a Resident Commissioner—a non-voting member—from Puerto Rico. So there're six total non-voting members in the House.

Kevin Kosar:

Representatives in the House come from districts these days. Where and who do these delegates and non-voting members represent? And is represent even the correct term for what their role is?

Elliot Mamet:

The non-voting members of Congress represent Americans who live outside the several states. Throughout their entire history, they've represented people who don't live in states—whether that's in the federal enclave of the District of Columbia or in territories either on the path to statehood or not on the path to statehood. Today, they represent 4 million Americans. Of that group, 3.5 million live in the United States territories—those people are 98% racial and ethnic minorities—and the remainder are the residents of the District of Columbia who are majority black or Hispanic. So the delegates represent overwhelmingly non-white constituents, and they represent a group of Americans who lack the same citizen rights and lack political equality to those people living in the several states.

Kevin Kosar:

Now, on this program, there's been a number of episodes where I and a guest have talked about earlier Congresses—the Congresses at the founding, early 20th century, etc.—and non-voting representatives just didn't come up in the conversation. Are they a recent development, or have they always been with us?

Elliot Mamet:

Great question. The non-voting representative has been a feature since the earliest Congresses. The institution dates back at least to 1784 when a committee chaired by Thomas Jefferson suggested that territories prior to becoming a state would be able to send a delegate to Congress with the right of debating but not of voting.

That proposal was codified by the Northwest Ordinance, and the first delegate sent to Congress was James White of the territory South of the River Ohio, who was admitted to be a delegate to Congress in 1794. And since that time—with a single exception—non-voting members have sat in the United States Congress.

For much of American history, those delegates represented territories on the road to statehood. That changed in two different periods. First was in 1898 with the Spanish-American War, where the U.S. acquired so-called “unincorporated territories,” which were not destined for statehood, including Puerto Rico and the Philippines. Those territories were given resident commissioners, non-voting members of Congress. And second, in the 1970s, Washington, D.C., Guam, the U.S. Virgin Islands, and American Samoa were given non-voting seats. Even though those places didn't seem like they were on the road to statehood, Congress thought it was a way to incorporate the voices of citizens living outside the states in the federal government. The most recent delegate added was the delegate from the Northern Mariana Islands. And last year, the House Rules Committee held a hearing on admitting a delegate from the Cherokee Nation, which has a right to a delegate to Congress under an 1835 treaty, so that issue is pending before the Congress—the Congress has not acted on that yet. But that just goes to show that delegates have been a feature of Congress since its earliest days and I think have played an important role in representing people living outside the states in our national legislature.

Kevin Kosar:

First I want to offer a comment, and then a follow up question. The first comment is for listeners: I want to underscore that we are talking about the House of Representatives. We're not talking about the Senate. We've not had these in the Senate.

But you mentioned earlier that delegates and non-voting members in theHouse were coming typically as a product of a territory being on the path to statehood. The 70s sounds like it was a qualitatively different situation or motivation and part of it sounds like an idea that if you are going to be Americans, then you have to have some sort of representation within the People's House in the name of fairness. Were there other motives in the mix there? Was it, “If we have them, perhaps this will boost the effort to move down the road to statehood,” or some other sort of factors that came to play?

Elliot Mamet:

Great question. So I have a project with Austin Bussing of Trinity University on the expansion of the delegate position in the 1970s. And what we find is that the overwhelming driver of that position was racial preferences. In other words, the delegate position was championed by civil rights organizers here on the mainland and advocates in the territories themselves as a way to give voice to Americans living outside the states. It was also blocked on racial grounds from conservative Southern chairmen in the House, for instance. The D.C. delegate position was also deeply tied to racial politics. D.C. home rule is often thought of as a product of the civil rights movement, and the D.C. delegate was a way to give this then-majority black city some sort of representation in Congress. So we argue that racial preferences were central to understanding why the four delegate seats were added in the 1970s.

I'll also say to answer your question, Kevin, politics mattered—political entrepreneurship mattered. One example of that was Philip Burton, the famous liberal leader in the Democratic Caucus. He advocated expanded seats for the delegates, both because he thought it was the right thing to do—it comported with ideas of political equality and civil rights—and also because it gave him increased power in the Democratic Caucus. He famously lost his leadership election to Jim Wright by one vote in 1976, and if it wasn't for the delegates, he would have lost it by more. His biographer said if Burton couldn't rule the Congress, at least he could rule the territories. And so he was very focused on territorial seats, both because he thought it was the right thing to do and as a way to gain power within the House.

Kevin Kosar:

Interesting. They're called delegates and non-voting members. They're...]]>The topic of this episode is, “Delegates to the House of Representatives: who are they and what do they do?”

My guest is Elliot Mamet. He is a Postdoctoral Research Associate and Lecturer at the Princeton School of Public and International Affairs. Previously, he served as an American Political Science Association Congressional Fellow. Elliot holds a Ph.D. in Political Science from Duke University.

Also important to note is that Dr. Mamet spent time working in the office of Washington, D.C. delegate, Eleanor Holmes Norton. All of which makes him a great person to ask the question, "Delegates to the House of Representatives: who are they and what do they do?"

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be, and that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington D.C.

Welcome to the podcast.

Elliot Mamet:

Thank you, Kevin. It's great to be here.

Kevin Kosar:

Let's start with a really simple question. Listeners are all too familiar with the fact that the House typically has 435 members. But they also have delegates. How many delegates are there to the House of Representatives?

Elliot Mamet:

Currently, there are five delegates to the House of Representatives. They serve from Washington, D.C., Guam, American Samoa, the U.S. Virgin Islands, and the Northern Mariana Islands. There's also a Resident Commissioner—a non-voting member—from Puerto Rico. So there're six total non-voting members in the House.

Kevin Kosar:

Representatives in the House come from districts these days. Where and who do these delegates and non-voting members represent? And is represent even the correct term for what their role is?

Elliot Mamet:

The non-voting members of Congress represent Americans who live outside the several states. Throughout their entire history, they've represented people who don't live in states—whether that's in the federal enclave of the District of Columbia or in territories either on the path to statehood or not on the path to statehood. Today, they represent 4 million Americans. Of that group, 3.5 million live in the United States territories—those people are 98% racial and ethnic minorities—and the remainder are the residents of the District of Columbia who are majority black or Hispanic. So the delegates represent overwhelmingly non-white constituents, and they represent a group of Americans who lack the same citizen rights and lack political equality to those people living in the several states.

Kevin Kosar:

Now, on this program, there's been a number of episodes where I and a guest have talked about earlier Congresses—the Congresses at the founding, early 20th century, etc.—and non-voting representatives just didn't come up in the conversation. Are they a recent development, or have they always been with us?

Elliot Mamet:

Great question. The non-voting representative has been a feature since the earliest Congresses. The institution dates back at least to 1784 when a committee chaired by Thomas Jefferson suggested that territories prior to becoming a state would be able to send a delegate to Congress with the right of debating but not of voting.

That proposal was codified by the Northwest Ordinance, and the first delegate sent to Congress was James White of the territory South of the River Ohio, who was admitted to be a delegate to Congress in 1794. And since that time—with a single exception—non-voting members have sat in the United States Congress.

For much of American history, those delegates represented territories on the road to statehood. That changed in two different periods. First was in 1898 with the Spanish-American War, where the U.S. acquired so-called “unincorporated territories,” which were not destined for statehood, including Puerto Rico and the Philippines. Those territories were given resident commissioners, non-voting members of Congress. And second, in the 1970s, Washington, D.C., Guam, the U.S. Virgin Islands, and American Samoa were given non-voting seats. Even though those places didn't seem like they were on the road to statehood, Congress thought it was a way to incorporate the voices of citizens living outside the states in the federal government. The most recent delegate added was the delegate from the Northern Mariana Islands. And last year, the House Rules Committee held a hearing on admitting a delegate from the Cherokee Nation, which has a right to a delegate to Congress under an 1835 treaty, so that issue is pending before the Congress—the Congress has not acted on that yet. But that just goes to show that delegates have been a feature of Congress since its earliest days and I think have played an important role in representing people living outside the states in our national legislature.

Kevin Kosar:

First I want to offer a comment, and then a follow up question. The first comment is for listeners: I want to underscore that we are talking about the House of Representatives. We're not talking about the Senate. We've not had these in the Senate.

But you mentioned earlier that delegates and non-voting members in theHouse were coming typically as a product of a territory being on the path to statehood. The 70s sounds like it was a qualitatively different situation or motivation and part of it sounds like an idea that if you are going to be Americans, then you have to have some sort of representation within the People's House in the name of fairness. Were there other motives in the mix there? Was it, “If we have them, perhaps this will boost the effort to move down the road to statehood,” or some other sort of factors that came to play?

Elliot Mamet:

Great question. So I have a project with Austin Bussing of Trinity University on the expansion of the delegate position in the 1970s. And what we find is that the overwhelming driver of that position was racial preferences. In other words, the delegate position was championed by civil rights organizers here on the mainland and advocates in the territories themselves as a way to give voice to Americans living outside the states. It was also blocked on racial grounds from conservative Southern chairmen in the House, for instance. The D.C. delegate position was also deeply tied to racial politics. D.C. home rule is often thought of as a product of the civil rights movement, and the D.C. delegate was a way to give this then-majority black city some sort of representation in Congress. So we argue that racial preferences were central to understanding why the four delegate seats were added in the 1970s.

I'll also say to answer your question, Kevin, politics mattered—political entrepreneurship mattered. One example of that was Philip Burton, the famous liberal leader in the Democratic Caucus. He advocated expanded seats for the delegates, both because he thought it was the right thing to do—it comported with ideas of political equality and civil rights—and also because it gave him increased power in the Democratic Caucus. He famously lost his leadership election to Jim Wright by one vote in 1976, and if it wasn't for the delegates, he would have lost it by more. His biographer said if Burton couldn't rule the Congress, at least he could rule the territories. And so he was very focused on territorial seats, both because he thought it was the right thing to do and as a way to gain power within the House.

Kevin Kosar:

Interesting. They're called delegates and non-voting members. They're not called representatives or just members. That implies that they are sort of the same but also different in terms of their powers within the chambers. Walk us through some of the similarities and the differences between them and a typical House member.

Elliot Mamet:

Before I get into that, when you meet a delegate on the street, it's polite to call them congressman or congresswoman. I don't think they like to be called delegate themselves.

But it's a great question. On the surface, these non-voting members of Congress seem very similar to their 435 voting peers. They have a congressional office, a website, they field staff, they earn the same salary as others. Importantly, they can sponsor and co-sponsor legislation—a delegate to Congress, Eleanor Holmes Norton from D.C., has co-sponsored more legislation than any other member of the House or Senate in history. They can make many parliamentary motions. They can serve on and vote in committees. They can even accrue seniority to become chair or ranking member of committees or subcommittees. They can move an impeachment and serve as impeachment manager, as Delegate Stacey Plaskett of the Virgin Islands did during the Trump impeachment. They can preside in the Committee of the Whole and—during certain congresses—they can vote in the Committee of the Whole if their vote is not decisive.

So those are some similarities. Let me get to the differences.

Non-voting members, when they vote in Committee of the Whole, their vote doesn't count if the vote is decisive. Five times in congressional history, the Congress has immediately risen from Committee of the Whole to vote in the full House on an amendment because the votes of the non-voting members were decisive. This most recently happened on July 13th. There was a vote on an amendment to the NDAA proposed by Mr. Ogles that would ban DEI in the military, and the vote—including the non-voting members—was 216 to 216, so their vote was decisive. The House had to immediately rise and vote without them. The vote was 214 to 213, so the amendment—which would have failed—was agreed to. So that's one of the differences.

There are important other differences too. The non-voting members cannot vote on final passage of legislation, which means that on an array of federal laws which affect people living in Washington, D.C. and the territories, the representative does not have a vote on the enactment of that law. Under the Constitution, they cannot vote for Speaker of the House. Because they can't vote on final passage, they can't make a motion to reconsider. They cannot preside in the House. Lastly, they cannot sign discharge petitions. And I'll just say that members who die in office or resign, their signature still counts on a discharge petition. But the duly elected delegates from D.C. and the several territories cannot sign a discharge petition, so a deceased member of Congress has more procedural power in this way than an elected delegate representing American citizens in D.C. or the territory. So those are some of the important differences between non-voting members and their voting peers.

Kevin Kosar:

Got it. If I just pause for a second—and let me know if this question, it pulls you afield—listeners might be thinking, ‘the House goes into Committee of the Whole? What does that mean?’ If you could just briefly illuminate on that for listeners.

Elliot Mamet:

Committee of the Whole is a procedural device by which the House considers amendments to pending legislation. The House generally goes into Committee of the Whole when there's two or more amendments offered. In certain Congresses since 1993, the delegates have been able to vote on those amendments as long as their votes are not decisive.

Kevin Kosar:

Perfect. So earlier you mentioned Representative Phil Burton's quest to become the top dog, and he was defeated by Jim Wright, and you mentioned that these delegates, non-voting members had a role. What role do they play in the selection of the speakers? They can't vote on the floor, but they can do what?

Elliot Mamet:

So the non-voting members of Congress can vote to elect party leaders within the Republican Conference or Democratic Caucus. They get a vote internally. And even recently, we saw that Mr. Scalise picked up the votes of the two Republican delegates and one Republican resident commissioner in the internal Republican leadership election. But when it comes to the floor, the delegates and resident commissioner may not vote. Their name is not called because they're not elected members of the House representing the several states, so they're disenfranchised in terms of picking who the Speaker of the House may be.

Kevin Kosar:

But within the conference, they get to vote. And in a close race—which it seems like those are getting more and more common, at least for the GOP these days—that could be a big deal. Could their votes be decisive there?

Elliot Mamet:

Certainly, they were just about decisive in 1976. And as someone who's trying to become party leader, every vote matters, so appealing to these territorial delegates or the delegate from the District of Columbia can be important to solidifying support within the party. One way to accommodate them is to make changes in the House rules that would win their support. It was speculated this year—we have no way of knowing, though—that Speaker McCarthy decided to give the delegates a vote in Committee of the Whole to win their support in the conference. The 118th Congress is the first Republican-controlled House that has given the delegates the right to vote in Committee of the Whole, and it may have been a way for McCarthy to at least get those three individuals to support him within the Republican Conference.

Kevin Kosar:

Really interesting. If I may, I'd like to double back to something you mentioned earlier, which was that possible delegate from Cherokee Nation. What's the process by which that could happen?

Elliot Mamet:

Great. So just to give listeners a sense of this issue, there is an 1835 treaty called the Treaty of New Echota, which guaranteed the Cherokee Nation a delegate in the United States Congress. That treaty right has never been vindicated. Congress has never sat a delegate from the Cherokee Nation.

In December 2022, the Rules Committee held a hearing on seating the delegate and heard from experts at the Congressional Research Service and others on this topic. So there's many issues with ceding a Cherokee delegate that we don't know the answer to. One of the issues is how that would proceed; different scholars and advocates have different points of view. One point of view is that the House rules alone could be enough to seat a Cherokee delegate since this delegate would only be a member of the House. Another point of view is that Congress would need to pass a law actualizing this treaty right. Every other delegate to Congress has been authorized by statute.

But on the other hand, every other delegate to Congress has always represented a geographical area, whether that's Washington, D.C. or one of the territories. This individual would represent not a geographical area, but the Cherokee Nation writ large who are spread across multiple areas, so it's an open question before the Congress how—if they chose to seat the delegate—they would go about doing so.

Kevin Kosar:

Wow, that is really interesting. Are there any other possible delegates who might come up? Are there other American Indian tribes or others who have not been able to get into the game as they should?

Elliot Mamet:

The 1835 Treaty of New Echota is the treaty considered to have the clearest language providing a right to a delegate. But one question is which group is entitled to send a delegate. There's three different native tribes that all claim that treaty right. Two of them have designated a delegate. So that's an issue for Congress.

Indian tribes assert, provide a treaty delegate. And some of those issues were before the Rules Committee’s hearing last year.

The other thing I would say to your listeners, Kevin, is there are a variety of informal representatives from sub-state entities who come to Congress but are not formally admitted. For those living in the District of Columbia, you'll know that we elect two shadow senators, and those individuals are unpaid D.C. officials sent to represent D.C. in the US Senate and lobby for statehood. They're not admitted as Senators, they have no official capacity, and if they want to watch a Senate proceeding, they have to go to the public gallery. So there are other appointed officials representing sub-state entities who...]]>7b1bb2ad-369b-41cf-bd64-ac4fe966f243Mon, 06 Nov 2023 06:00:00 -050021:23falsefull4040How Is Congress Involved in Foreign Policy? (With Jordan Tama)The topic of this episode is, “How is Congress involved in foreign policy?”

My guest is Jordan Tama, a Provost Associate Professor at American University’s School of International Service. He is the author or editor of five books on foreign policy. They are:

· Polarization and US Foreign Policy: When Politics Crosses the Water’s Edge, co-edited with Gordon M. Friedrichs (Palgrave Macmillan, Forthcoming)

· Bipartisanship and US Foreign Policy: Cooperation in a Polarized Age (Oxford University Press, 2024);

· Rivals for Power: Presidential-Congressional Relations, sixth edition, co-edited with James A. Thurber (Rowman and Littlefield, 2018);

· Terrorism and National Security Reform: How Commissions Can Drive Change During Crises (Cambridge University Press, 2011); and

· A Creative Tension: The Foreign Policy Roles of the President and Congress, co-authored with Lee H. Hamilton (Woodrow Wilson Center Press, 2002).

Jordan also has written many papers on foreign policy, so it seems to me he is a great person to have on the podcast to help us understand how Congress is involved in foreign policy.

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be, and that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington DC.

Welcome to the podcast.

Jordan Tama:

Thanks so much for having me on, Kevin.

Kevin Kosar:

Some months ago, our listeners heard me chat with Alissa Ardito about the formal powers of Congress in foreign affairs. We talked about things like how the Senate has the authority to approve treaties and to consider nominees to fill high positions in the State Department, the military, and other agencies that are involved in foreign affairs. We also talked about the fact that Congress has the power to declare war and the discretion to fund and create agencies that deal with matters overseas, like the United States Agency for International Development. And we also pondered in a philosophical manner about how we're supposed to have a representative democracy influencing foreign affairs.

But I wanted to bring you in because you're so well prepared, well-studied, and scholarly on the matter of where the rubber hits the road and how the wheels actually turn. So let me start by asking, where should the bewildered citizen first look when trying to understand how Congress is involved in foreign policy?

Jordan Tama:

Congress is involved in foreign policy in a lot of ways, more than most Americans realize. This includes both Congress exercising its formal powers and Congress exercising influence in more informal ways. I'll say a quick word about both of those areas, the formal and informal powers.

Certainly, the formal powers are important, and the most important of these tends to be the power of the purse. When it comes to spending on diplomacy, defense—and defense is half of the discretionary federal budget, so that's huge—and foreign aid, the president simply can't act without Congress appropriating the funds. This gives Congress a power that it exercises every single year, and in recent years, Congress has sometimes challenged the president assertively on foreign policy spending. One example of that was when Donald Trump was president. He wanted to cut the budget of the State Department and the US Agency for International Development (USAID) by a third, and Congress said no and instead maintained the budget at roughly constant levels, which was important in allowing the U.S. to continue playing an active role in the world and providing foreign assistance to other countries.

Congress also routinely influences foreign policy by passing legislation that authorizes or mandates foreign policy stances or actions. For instance, Congress has mandated sanctions in recent years on many countries, including Russia, China, Iran, and North Korea. This is an area where Congress tends to be quite active legislatively.

But Congress also influences foreign policy through its informal powers, which can include public statements by members of Congress—particularly the more prominent members of Congress like the chairs or ranking members of the key foreign policy committees, or the House or Senate leaders. It also can include trips to foreign countries by members of Congress. It could include private meetings between members of Congress and senior executive branch officials. I'll just say a quick word about a couple of these informal tools.

Public statements by members of Congress on high profile foreign policy issues can sometimes be pretty important because they can generate a lot of media attention, and that can shape public attitudes. So one recent example of this is “Make America Great Again” (MAGA) Republicans in Congress along with Donald Trump and some of the MAGA Republicans running for president have been making public statements in opposition to US aid to Ukraine. And this seems to be moving Republican public opinion away from supporting US aid to Ukraine, even though legislatively the MAGA Republicans don't yet have the majority on that issue in Congress. Foreign trips can be important. A lot of members of Congress have gone to Taiwan in recent years, and this can send a strong signal to Taiwan, can infuriate China, and complicate things the Biden Administration is trying to do with regard to China. And then there're private conversations going on all the time between members of Congress and executive branch officials. Sometimes these can be important, but they're not going to be reported in the media. But that sort of thing is happening all the time.

Kevin Kosar:

One of the things you mentioned is that both individual members of Congress and the committees who have formal jurisdiction have a role to play. And that's interesting because that means you have a president and his foreign policy apparatus, but you also have 535 other people who can be getting involved in these things in one way or another, which—like you said—doesn't create a necessarily clear message all the time for foreign nations to pick up on. They instead may be getting a bit of a cacophony, right?

Jordan Tama:

That's absolutely right, and on a lot of foreign policy issues, there is no consensus position coming out of Congress—there're just a lot of different positions. When that's the case, Congress is often not going to be able to pass legislation on the issue, so all you get from Congress is a lot of different messages. But those messages can sometimes still be quite important, and there are issues where there is a prevailing position in Congress. So I'll again go back to something during the Trump Administration. Trump was very critical of NATO and he privately talked about the idea of withdrawing from NATO. Members of Congress who supported NATO heard that and they passed a resolution reiterating US support for NATO—even though there are some members of Congress who are on Trump's wavelength on NATO, the majority was not.]]>The topic of this episode is, “How is Congress involved in foreign policy?”

My guest is Jordan Tama, a Provost Associate Professor at American University’s School of International Service. He is the author or editor of five books on foreign policy. They are:

· Polarization and US Foreign Policy: When Politics Crosses the Water’s Edge, co-edited with Gordon M. Friedrichs (Palgrave Macmillan, Forthcoming)

· Bipartisanship and US Foreign Policy: Cooperation in a Polarized Age (Oxford University Press, 2024);

· Rivals for Power: Presidential-Congressional Relations, sixth edition, co-edited with James A. Thurber (Rowman and Littlefield, 2018);

· Terrorism and National Security Reform: How Commissions Can Drive Change During Crises (Cambridge University Press, 2011); and

· A Creative Tension: The Foreign Policy Roles of the President and Congress, co-authored with Lee H. Hamilton (Woodrow Wilson Center Press, 2002).

Jordan also has written many papers on foreign policy, so it seems to me he is a great person to have on the podcast to help us understand how Congress is involved in foreign policy.

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be, and that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington DC.

Welcome to the podcast.

Jordan Tama:

Thanks so much for having me on, Kevin.

Kevin Kosar:

Some months ago, our listeners heard me chat with Alissa Ardito about the formal powers of Congress in foreign affairs. We talked about things like how the Senate has the authority to approve treaties and to consider nominees to fill high positions in the State Department, the military, and other agencies that are involved in foreign affairs. We also talked about the fact that Congress has the power to declare war and the discretion to fund and create agencies that deal with matters overseas, like the United States Agency for International Development. And we also pondered in a philosophical manner about how we're supposed to have a representative democracy influencing foreign affairs.

But I wanted to bring you in because you're so well prepared, well-studied, and scholarly on the matter of where the rubber hits the road and how the wheels actually turn. So let me start by asking, where should the bewildered citizen first look when trying to understand how Congress is involved in foreign policy?

Jordan Tama:

Congress is involved in foreign policy in a lot of ways, more than most Americans realize. This includes both Congress exercising its formal powers and Congress exercising influence in more informal ways. I'll say a quick word about both of those areas, the formal and informal powers.

Certainly, the formal powers are important, and the most important of these tends to be the power of the purse. When it comes to spending on diplomacy, defense—and defense is half of the discretionary federal budget, so that's huge—and foreign aid, the president simply can't act without Congress appropriating the funds. This gives Congress a power that it exercises every single year, and in recent years, Congress has sometimes challenged the president assertively on foreign policy spending. One example of that was when Donald Trump was president. He wanted to cut the budget of the State Department and the US Agency for International Development (USAID) by a third, and Congress said no and instead maintained the budget at roughly constant levels, which was important in allowing the U.S. to continue playing an active role in the world and providing foreign assistance to other countries.

Congress also routinely influences foreign policy by passing legislation that authorizes or mandates foreign policy stances or actions. For instance, Congress has mandated sanctions in recent years on many countries, including Russia, China, Iran, and North Korea. This is an area where Congress tends to be quite active legislatively.

But Congress also influences foreign policy through its informal powers, which can include public statements by members of Congress—particularly the more prominent members of Congress like the chairs or ranking members of the key foreign policy committees, or the House or Senate leaders. It also can include trips to foreign countries by members of Congress. It could include private meetings between members of Congress and senior executive branch officials. I'll just say a quick word about a couple of these informal tools.

Public statements by members of Congress on high profile foreign policy issues can sometimes be pretty important because they can generate a lot of media attention, and that can shape public attitudes. So one recent example of this is “Make America Great Again” (MAGA) Republicans in Congress along with Donald Trump and some of the MAGA Republicans running for president have been making public statements in opposition to US aid to Ukraine. And this seems to be moving Republican public opinion away from supporting US aid to Ukraine, even though legislatively the MAGA Republicans don't yet have the majority on that issue in Congress. Foreign trips can be important. A lot of members of Congress have gone to Taiwan in recent years, and this can send a strong signal to Taiwan, can infuriate China, and complicate things the Biden Administration is trying to do with regard to China. And then there're private conversations going on all the time between members of Congress and executive branch officials. Sometimes these can be important, but they're not going to be reported in the media. But that sort of thing is happening all the time.

Kevin Kosar:

One of the things you mentioned is that both individual members of Congress and the committees who have formal jurisdiction have a role to play. And that's interesting because that means you have a president and his foreign policy apparatus, but you also have 535 other people who can be getting involved in these things in one way or another, which—like you said—doesn't create a necessarily clear message all the time for foreign nations to pick up on. They instead may be getting a bit of a cacophony, right?

Jordan Tama:

That's absolutely right, and on a lot of foreign policy issues, there is no consensus position coming out of Congress—there're just a lot of different positions. When that's the case, Congress is often not going to be able to pass legislation on the issue, so all you get from Congress is a lot of different messages. But those messages can sometimes still be quite important, and there are issues where there is a prevailing position in Congress. So I'll again go back to something during the Trump Administration. Trump was very critical of NATO and he privately talked about the idea of withdrawing from NATO. Members of Congress who supported NATO heard that and they passed a resolution reiterating US support for NATO—even though there are some members of Congress who are on Trump's wavelength on NATO, the majority was not. So, it's a mix. There are some issues where it's a complete cacophony and Congress is not going to be able to act legislatively at all, and there are others where it's still possible to muster a majority.

But when there's a cacophony, it does weaken the US’s position in the world because it makes it harder for the US to speak with one voice. It makes it harder for other countries to trust US commitments because when they hear a lot of different things coming out of Congress. The president may be saying to them, “We're ready to negotiate some long-term partnership with you,” or, “We're ready to offer you a long-term aid package.” But if foreign governments hear members of Congress criticizing that idea or saying something entirely different, they're going to question whether they should enter into this partnership with the US or whether they can trust the US, because who knows who's going to be president in a few years or what Congress is going to be doing in a few years. So that is a real problem for the credibility, reliability, and reputation of the US.

Kevin Kosar:

Certainly it complicates things, and since the United States is not a parliamentary system—but a separation of power system—it's probably even more difficult for foreign audiences to understand what's going on. When is a legislator popping off not something to be paid much attention to versus what he’s saying is relevant because this guy chairs the Foreign Affairs Committee or he has some influence? Now, is it possible—as a generalization—to characterize Congress as leading on foreign policy issues or following and reacting to the president, or is it just issue by issue?

Jordan Tama:

Certainly, the standard view of Congress is that it follows the president on foreign policy. I think the reality is more nuanced than that. Congress does often follow the president, but there are many cases where it's leading on foreign policy. The cases where it's leading, though, tend to be issues that are a little less salient.

But certainly, the president leads overall on foreign policy. The president is usually the first mover on foreign policy, thanks to certain institutional advantages. Compared to Congress, the president has access to more extensive and up-to-date information about what's going on around the world. The president is getting regular reports from the intelligence community and US diplomats, who are more up-to-date than information that's coming into Congress on a day-to-day basis. And the president can usually act more quickly than Congress. Even when some members of Congress want to do something, they may not be able to persuade their colleagues to go along, may not be able to get legislation approved.

Certainly, when it comes to the use of military force, the president is usually in the driver's seat. Typically, when use of the military is on the table, the president is the initiator, and then Congress is left to endorse the use of military force, criticize it, or simply do nothing. And often Congress is unable to reach consensus and so just doesn't take any kind of action as a unified body. As a result, even though the Constitution gives power to declare war to Congress, there've been lots of military deployments in recent decades by presidents that were not authorized by Congress, and Congress has more or less sat on the sidelines regarding that decision.

But there are plenty of other issues where Congress does lead on foreign policy. This is often in the form of members of Congress pressing for the US to pay more attention to a certain foreign policy issue—a “do more” on a foreign policy issue that some members of Congress feel is being neglected. I'll give an example from my own experience on this.

A decade ago, I served as a fellow on the Tom Lantos Human Rights Commission in the House—this is the body with the charge of elevating attention to human rights in Congress—and in that role, I was supporting the work of Congressman Jim McGovern, who is the Democratic co-chairman of that Commission. And I assisted him as he and some like-minded members of Congress spearheaded the enactment of a law called the Magnitsky Act, which placed sanctions on Russian government officials who had committed major violations of human rights. This legislation was entirely an initiative of members of Congress. It was resisted by the Obama Administration because the Administration thought it would antagonize Russia and hurt U.S. relations with Russia. But Congressman McGovern and his allies on the Hill pushed it through and Obama signed it reluctantly because it had so much support in Congress. This type of thing happens regularly—there is congressional entrepreneurship on foreign policy on certain issues that are priorities for particular members of Congress. There are members of Congress who really care about certain issues and they push for more attention on those issues.

Kevin Kosar:

Your example is a good one and actually spurred me to remember that, in more recent years, we've seen Congress lean in on the issue of the cruelties towards the Uyghurs in China, for example, and on a whole variety of trade-related issues. And as you referenced, the idea of sanctions being a frequent tool that Congress leans in on felt to me that they were way ahead of where the president was.

Jordan Tama:

I think that's exactly right. The Uyghurs is an excellent example of that. Congress passed legislation imposing sanctions on China for human rights abuses against the Uyghurs. This was not something President Trump would have wanted to do, and Congress has passed similar bills targeting Chinese human rights abuses in Hong Kong.

Even though our recent US presidents have had tough stances toward China, these are bills that presidents have not been enthusiastic about because they want more flexibility. They don't want Congress to mandate these laws that bind their hands because then the president doesn't have the flexibility of being able to negotiate and wield the levers of carrots and sticks with regard to a foreign government. Congress in these cases is often restricting the president's flexibility, and that's a common source of tension between Congress and the president.

Kevin Kosar:

Absolutely, and it gets at that difficult matter of democratic accountability. It's understandable a president would want to have an absolute free hand to be able to cut a deal. Negotiations are messy—the president’s going to be negotiating with a country on multiple topics where issues are linked and decoupled, so they might well bristle at anything that comes in and curbs that authority. At the same time, foreign policy is ultimately American policy, and there's got to be some sort of democratic accountability, and that's what the legislature is for.

Jordan Tama:

That's absolutely right, and this is a question I ask my students often, “Are we better off with a more active Congress or with a dominant president?” And I think this is the tradeoff: a more active Congress makes foreign policy more accountable to the American people, more representative of the wide range of views of the American people. On the other hand, the president is often more attuned to the overall national interest. Sometimes there’s tension between what might be in the overall best interest of the United States and what might best represent the views, perspectives, and interests of particular parts of the American population that are represented most effectively in Congress. So this is a real tension and trade-off.

I don't think one answer is more right or better or more important than the other, but I think tension is at the heart of our system and it really comes through in foreign policy in particular.

Kevin Kosar:

Certainly that trade-off between what's good for the nation as a whole versus localities. We saw that issue relitigated or debated again when we had this effort to renegotiate NAFTA. The argument was, “Whatever great things it did for the nation as a whole in the aggregate, the costs on particular populations (e.g., textile workers, etc.) were too high, so we need go back and change the agreement to get the trade off to work a little bit better.”

Jordan Tama:

Right. Yeah, that’s right.

Kevin Kosar:

So as a kid I remember hearing the phrase, “politics stops at the water's edge,” and I don't remember if the context was in discussing the United States at war or if it was just a more general phrase that was used to justify the president having a freehand in foreign policy. You use those words in the title of one of your books, as listeners heard. Do legislators tend to curb their divisions to present a united front to the world, or is this more an ought statement—an executive wish that politics would stop at the water's edge, but they just don't?

Jordan Tama:

It's more the latter. It's an ought statement. The notion that politics stops at the water's edge has been expressed often in discussions of foreign policy since the early Cold War days. It was really in the early Cold War when that phrase became commonly used. It was in the context of proponents of policies of containment toward the...]]>e079cb8a-7609-41bd-9a5d-21d90cc8a94fMon, 02 Oct 2023 06:00:00 -050026:40falsefull3939Can Congress Access Classified Information? (with Daniel Schuman)The topic of this episode is, “Can Congress access classified information?”

My guest is Daniel Schuman. He is the Policy Director at Demand Progress, a grassroots, nonpartisan organization that has worked to improve the legislative branch and to make government more transparent to the public. Daniel also is the editor of the First Branch Forecast, an extraordinarily informative newsletter that you can read and subscribe to at no cost at https://firstbranchforecast.com/.

We last spoke with Daniel on episode 8 of this podcast, where he enlightened us on the process by which Congress funds itself. This time around, we will dig into the subject of Congress and classified information.

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be, and that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington DC.

Daniel, welcome to the podcast.

Daniel Schuman:

Thanks so much for having me.

Kevin Kosar:

I suppose we should start by defining our subject matter: classified information. Pardon the vanity here, but I'm going to refer to a report I wrote some years ago for the Congressional Research Service, where I defined classified information as "information or material designated and clearly marked or clearly represented, pursuant to the provisions of a statute or Executive order (or a regulation or order issued pursuant to a statute or Executive order), as requiring a specific degree of protection against unauthorized disclosure for reasons of national security (50 U.S.C. 426(1))." How's that for clarity?

Now, let's make this a little more clear. Classified information, put really simply, is government information that only certain people in the executive branch can see. Is that roughly correct?

Daniel Schuman:

Yeah, it's roughly right. There are folks inside the legislative and judicial branches who have a right to have access as well. And as your excellent report actually indicated, there're two major ways in which you get classification. One is by statutory authority, which is what we did largely for atomic information. Then there's everything else, which was just sort of made up by the President through executive order. But as a general rule, 99.9%—or something pretty close to that—people with access to classified information are people inside the executive branch.

Kevin Kosar:

Okay, so a listener might be hearing this and saying, “Wait a minute, isn’t this inherently problematic for representative government? We, the people, elect the people who are supposed to make the laws and the people who make the laws are supposed to oversee the executive branch, which executes the laws. But if stuff's classified and the public can't see it and people in Congress generally can't see it, do we lose accountability? What do you think?

Daniel Schuman:

We absolutely do. There're two concepts worth separating. One is whether you have the technical right to see certain information, and the other is whether you actually have the means to see it.

Members of Congress and federal judges do not need to obtain a clearance. Nor does the President for that matter, which sometimes works out to our advantage and sometimes does not. In theory, members of Congress and the Judicial Branch, the executive orders don't apply to them and they should be able to see any information that they need to be able to see. And by extension—at least in theory—so should their staff. In Congress, that would the personal staff, the committee staff, and the support offices and agencies.

But beyond this mechanical problem of do you have or need a clearance, there’s also the issue of, “do you have this need to know?” Members of Congress don't need a clearance because they are constitutional officers, but that is a different question from, “should they be able to see this information?” Sometimes the answer is yes, sometimes the answer is no, but the people who should decide that are the members of Congress themselves. It's the legislative body. They have a fundamental right to oversee the executive branch. The House of Representatives used to be known as the Inquest of the Nation. They do have a right to get answers to all the questions, including things that the executive branch says is classified.

But the executive branch plays games here a little bit. The executive branch is very large; Congressional staff are very small. So they will not necessarily provide them the information. There is a long-standing fight where the executive branch doesn't want to hand over information, so Congress has created special committees that are focused on these matters. But then they play a game with those committees as well—“Well, we'll give it the Intelligence Committee but we won't give it to Armed Services,” or, “We're going to classify it at a different level so your staff can't see it.”

One final point is that while congressional staff—at least as a matter of theory—don't need to have a clearance, as a practical matter, they do. And the people who conduct the clearance reviews are the executive branch, which is not the greatest thing in the world to have happen. Some of these clearances can happen quickly, some can happen slowly.

There's a story that in the 1970s, the executive branch went to Congress and said, “We're going to reduce the number of people in the executive branch with clearances, and you should also have fewer people in Congress.” So the head of the CIA [Stansfield Turner] made a deal with Tip O'Neill and Senate leaders at the time to reduce the number of people with clearances. But they didn't get rid of the number of clearances for people in leadership, of course. They got rid of it for the rank and file. Long story short, the number of clearances in the executive branch went up astronomically, but Congress never changed the way things work for them, so they have great trouble overseeing matters that are happening inside the executive branch.

Kevin Kosar:

From the perspective of representative government, it is a little jarring that Congress has delegated so much control over classified information, controlled information, and all the other different types of information. They've delegated so much of that to the executive branch. We’ve alluded to this, but presidents file these executive orders, which set the rules on how much information gets classified, how long it gets classified for, etc.

Now, who in Congress gets to see classified information on a regular basis? Is it particular committees? Is it any individual who's been elected? Who is it?

Daniel Schuman:

That's a good question.

Again, we have theory and practice. In theory, every member of Congress has a right to see classified matters. But the House and Senate have each adopted rules that compartmentalize this information. So things that relate to the Armed Services Committee, members of the Armed Services Committee—in theory—can see. The committee will also have cleared staff, but now you start getting into principal-agent problems. Committee staff work for the committee chair and not the members of the committee. On the Senate side—in the Senate Intelligence Committee—you have staff designees, so each member of that committee has their own staffer who is hired and fired by them, so they can actually support the members. On the House side, that's not true at all. On the House Intelligence Committee, every member who is on the committee does not have a staffer who works for them, so they’re reliant on committee staff.

There is one exception, which is that the Speaker of the House and the Minority Leader get staff designees because they are ex officio members of the committee. So you have large information asymmetries inside the chamber and then as it relates to outside. Classified information is not just shared inside the United States. We share it with our allies, sometimes we inadvertently share it with our adversaries, but there are many people who are allowed to be in access to classified information.

But Congress is where there's a real rub. Lots of people who should be able to see it, can't see it. They haven't kept up with the way that clearances have changed. A lot of information that used to be classified as secret way back in the day is now classified to being top secret, and we'll have compartmentalization on top of that.

So while interns in the executive branch can often be in access to information that is highly classified, members of Congress and their staff have real difficulty accessing this. And even when they're voting on matters that are highly classified, it's often very difficult for them to get access to that information. And the way access is...]]>The topic of this episode is, “Can Congress access classified information?”

My guest is Daniel Schuman. He is the Policy Director at Demand Progress, a grassroots, nonpartisan organization that has worked to improve the legislative branch and to make government more transparent to the public. Daniel also is the editor of the First Branch Forecast, an extraordinarily informative newsletter that you can read and subscribe to at no cost at https://firstbranchforecast.com/.

We last spoke with Daniel on episode 8 of this podcast, where he enlightened us on the process by which Congress funds itself. This time around, we will dig into the subject of Congress and classified information.

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be, and that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington DC.

Daniel, welcome to the podcast.

Daniel Schuman:

Thanks so much for having me.

Kevin Kosar:

I suppose we should start by defining our subject matter: classified information. Pardon the vanity here, but I'm going to refer to a report I wrote some years ago for the Congressional Research Service, where I defined classified information as "information or material designated and clearly marked or clearly represented, pursuant to the provisions of a statute or Executive order (or a regulation or order issued pursuant to a statute or Executive order), as requiring a specific degree of protection against unauthorized disclosure for reasons of national security (50 U.S.C. 426(1))." How's that for clarity?

Now, let's make this a little more clear. Classified information, put really simply, is government information that only certain people in the executive branch can see. Is that roughly correct?

Daniel Schuman:

Yeah, it's roughly right. There are folks inside the legislative and judicial branches who have a right to have access as well. And as your excellent report actually indicated, there're two major ways in which you get classification. One is by statutory authority, which is what we did largely for atomic information. Then there's everything else, which was just sort of made up by the President through executive order. But as a general rule, 99.9%—or something pretty close to that—people with access to classified information are people inside the executive branch.

Kevin Kosar:

Okay, so a listener might be hearing this and saying, “Wait a minute, isn’t this inherently problematic for representative government? We, the people, elect the people who are supposed to make the laws and the people who make the laws are supposed to oversee the executive branch, which executes the laws. But if stuff's classified and the public can't see it and people in Congress generally can't see it, do we lose accountability? What do you think?

Daniel Schuman:

We absolutely do. There're two concepts worth separating. One is whether you have the technical right to see certain information, and the other is whether you actually have the means to see it.

Members of Congress and federal judges do not need to obtain a clearance. Nor does the President for that matter, which sometimes works out to our advantage and sometimes does not. In theory, members of Congress and the Judicial Branch, the executive orders don't apply to them and they should be able to see any information that they need to be able to see. And by extension—at least in theory—so should their staff. In Congress, that would the personal staff, the committee staff, and the support offices and agencies.

But beyond this mechanical problem of do you have or need a clearance, there’s also the issue of, “do you have this need to know?” Members of Congress don't need a clearance because they are constitutional officers, but that is a different question from, “should they be able to see this information?” Sometimes the answer is yes, sometimes the answer is no, but the people who should decide that are the members of Congress themselves. It's the legislative body. They have a fundamental right to oversee the executive branch. The House of Representatives used to be known as the Inquest of the Nation. They do have a right to get answers to all the questions, including things that the executive branch says is classified.

But the executive branch plays games here a little bit. The executive branch is very large; Congressional staff are very small. So they will not necessarily provide them the information. There is a long-standing fight where the executive branch doesn't want to hand over information, so Congress has created special committees that are focused on these matters. But then they play a game with those committees as well—“Well, we'll give it the Intelligence Committee but we won't give it to Armed Services,” or, “We're going to classify it at a different level so your staff can't see it.”

One final point is that while congressional staff—at least as a matter of theory—don't need to have a clearance, as a practical matter, they do. And the people who conduct the clearance reviews are the executive branch, which is not the greatest thing in the world to have happen. Some of these clearances can happen quickly, some can happen slowly.

There's a story that in the 1970s, the executive branch went to Congress and said, “We're going to reduce the number of people in the executive branch with clearances, and you should also have fewer people in Congress.” So the head of the CIA [Stansfield Turner] made a deal with Tip O'Neill and Senate leaders at the time to reduce the number of people with clearances. But they didn't get rid of the number of clearances for people in leadership, of course. They got rid of it for the rank and file. Long story short, the number of clearances in the executive branch went up astronomically, but Congress never changed the way things work for them, so they have great trouble overseeing matters that are happening inside the executive branch.

Kevin Kosar:

From the perspective of representative government, it is a little jarring that Congress has delegated so much control over classified information, controlled information, and all the other different types of information. They've delegated so much of that to the executive branch. We’ve alluded to this, but presidents file these executive orders, which set the rules on how much information gets classified, how long it gets classified for, etc.

Now, who in Congress gets to see classified information on a regular basis? Is it particular committees? Is it any individual who's been elected? Who is it?

Daniel Schuman:

That's a good question.

Again, we have theory and practice. In theory, every member of Congress has a right to see classified matters. But the House and Senate have each adopted rules that compartmentalize this information. So things that relate to the Armed Services Committee, members of the Armed Services Committee—in theory—can see. The committee will also have cleared staff, but now you start getting into principal-agent problems. Committee staff work for the committee chair and not the members of the committee. On the Senate side—in the Senate Intelligence Committee—you have staff designees, so each member of that committee has their own staffer who is hired and fired by them, so they can actually support the members. On the House side, that's not true at all. On the House Intelligence Committee, every member who is on the committee does not have a staffer who works for them, so they’re reliant on committee staff.

There is one exception, which is that the Speaker of the House and the Minority Leader get staff designees because they are ex officio members of the committee. So you have large information asymmetries inside the chamber and then as it relates to outside. Classified information is not just shared inside the United States. We share it with our allies, sometimes we inadvertently share it with our adversaries, but there are many people who are allowed to be in access to classified information.

But Congress is where there's a real rub. Lots of people who should be able to see it, can't see it. They haven't kept up with the way that clearances have changed. A lot of information that used to be classified as secret way back in the day is now classified to being top secret, and we'll have compartmentalization on top of that.

So while interns in the executive branch can often be in access to information that is highly classified, members of Congress and their staff have real difficulty accessing this. And even when they're voting on matters that are highly classified, it's often very difficult for them to get access to that information. And the way access is provisioned, they often don't have staff support to help them understand what it is that they're looking at, which is fundamentally problematic.

Kevin Kosar:

The matter of access—actually being able to see it—brings up a basic question of where do members of Congress get to see it. And I'd be remiss if I didn't mention an infamous moment that occurred during the second Bush presidency where some folks in Congress wanted to get some information on things that were happening in the Middle East post-9/11. And when they spoke to the executive branch and the president's people and said that they wanted to learn about this topic and see the classified information, they were informed that if they wanted to see the information, they had to meet over in an executive branch building. And by the way, you would not be able to bring in a notepad, a pencil, or anything else. The fact that the executive branch is actually physically and digitally where this material rests for the most part means that the people in the executive branch have control—it's in their hands.

So when Congress does get to see this stuff, how do they see it? Are they always stuck going over to the executive branch? Or can they see it somehow in the Capitol or their offices or something else?

Daniel Schuman:

That’s a really good question. It depends on the level of classification and other sort of other things as well.

Materials that are at a low level of classification, you're actually allowed to send it by US Mail. Things that are at low levels of classification, a member can obtain it and they can keep it in a safe—there's a special GSA approved safe where they can keep those matters—then you sign it in and sign it out. That's also how it works in the executive branch, which kind of explains some of the leaks that you see. At higher levels, there are these special rooms called the SCIF, which are basically Faraday cages—they're designed to be impervious to surveillance. There’re armed guards and you go into these rooms and you can look at the documents. Sometimes the person from the executive branch might bring it over and have it chained to them. There’re also a number of classified email systems (e.g., SIPRnet), where—in theory—you can email people, ask questions, and get a response. But while the executive branch's network is widely available throughout the executive branch, in Congress, they limit how many people you can email. So there're all sorts of weird limitations in terms of your ability to reach out and ask people questions. Congress largely gets the short end of the stick.

Your example is a good one, but my favorite example is when [former Senator] Jay Rockefeller was briefed in the early 2000s on the unlawful domestic surveillance program that the Bush administration had stood up, they told him that he couldn't tell anybody else, that he couldn't have staff advise him. So the only memorialization of this is a note that he wrote to himself in pencil along with the file that was kept in wherever they did the briefing that basically says, “I think this is unconstitutional, but I'm not allowed to talk to anyone else, so I'm putting my objection here.” And that was it.

This, of course, leads to another problem, which is, “Okay, the president has told you of this thing. Who else can you tell? Can you tell your fellow members of Congress? Can you release this information to the public? Now that you've got it, what can you do with it?” Members are often not willing to do anything because they're following the advice of the Office of Legal Counsel at the Department of Justice, which reflects the perspectives of the executive branch and not what the law actually is.

So you go through great lengths to get access. You don't always have the context for what you're looking at. You're often told that you can't have staff support or the staff that are supporting you are not your people. Then there're restrictions in terms of what you can do with the information that you've received, which doesn't work well at all in a representative democracy, but that's the system that we have.

Kevin Kosar:

Yeah, the Rockefeller example is a juicy one because if he's hearing something and thinking to himself, this is unconstitutional, as a guy who took an oath upon taking office, part of which is, “I shall uphold the Constitution,” you would seem to have an imperative to speak up.

But setting that aside, there certainly have been incidents where members of Congress have proudly released classified information, not just leaking it on the down-low to media and giving it a little spin to create the narrative they want, but just letting it fly. The example that comes to mind for me was when Alaska's Mike Gravel basically went on the floor of chamber and just put it in the public record. Do you remember that incident?

Daniel Schuman:

I thought it was in his subcommittee. Like, there's video of this, right, where he's like crying as he's reading parts of the Pentagon Papers, I think they were, into the record. Because he thought that that was going to be the end of his career.

Kevin Kosar:

And of course it wasn't. He was not locked up in a cage by the executive branch for releasing this information. Yet so many members do think that the sky will fall upon them if they do this sort of thing in the open.

Daniel Schuman:

It's funny because he found an interesting way to do this. As you know, there's Speech or Debate Clause protection. So if you do things as part of your official duties, you can't be prosecuted elsewhere for it. If you read it into the record, that's fine. In the text of the bill—I'd love to see someone leak classified information in a bill or a resolution, but that has never happened. But in theory, that could be considered an official duty. But if you put in a press release, you're fair game. There is a mechanism for the release of information the executive branch has deemed classified, which is that the House Intelligence Committee or the Senate Intelligence Committee can put forward a resolution that ultimately is passed by the chamber through a very long convoluted process to release information to the public. That's only happened, to my knowledge, only once and it happened in the House. That doesn't declassify the information, so you're still not allowed to look at it if you hold the clearance, but it actually did release the information to the public.

And it's problematic because only the Intel committee can do it. You have to play “Mother, may I?” with the executive branch. You pass a resolution that goes to the White House and they say, “We'd like to release this.” And the White House is like, “You can't release this.” It's like the Passover story, just being denied again and again. So then they pass the resolution, it goes to the chamber, and the White House gets an opportunity to weigh in again. Then they can have a secret debate, in which they can decide whether to release this information.

Just one more point that I find interesting. In the 19th century, the Senate largely operate in closed session for treaties and executive nominations because of the idea that this information should be confidential and so on and so forth. And what happened is that the press would get their hands on draft treaties and draft legislation all the time. Today, Congress largely does not operate in secret on the floor; it will do things in the committees. Many parts of the executive branch operate largely in secret, and we see information released all the time; sometimes officially because the White House views it as useful to them, and sometimes unofficially because you have leakers in the press motivated by good reasons or bad, or because the information is stolen, lost, or has other problems. It's interesting how much of our understanding of the world is shaped by information that the executive branch did not want released, but ultimately was beneficial to our democracy to know what was going on.

Tom Blanton over at the National Security Archives says that there shouldn't be that much information that's classified and what's classified should be highly protected. We live in the opposite situation where there's a lot of information that's classified and the protections for it aren't great. I would just add that our best accountability mechanism, which is the legislative branch, is the one that is more thwarted than anybody else in terms of getting access to this information that they need to do their jobs.

Kevin Kosar:

Yeah, having mentioned, what happens when classified information gets—not formally declassified, but—just released in some way, shape, or form, I feel obligated to mention this little story on the weird situation it creates for the...]]>f830dea3-3434-41a7-a9a8-9d8824c96c6bTue, 05 Sep 2023 06:00:00 -050028:32falsefull3838What Does the U.S. Government Accountability Office Do? (with Gene Dodaro)The topic of this episode is, “What does the U.S. Government Accountability Office do?”

To answer that question we have Gene Dodaro. He is the eighth Comptroller General of the United States—that means he is the head of the U.S. Government Accountability Office (GAO). He has held that position since December 2010. Prior to becoming the top dog at this government watchdog agency, Gene held other executive positions at GAO, including Chief Operating Officer. Remarkably, Gene has spent a half of a century at the agency. So, with all that experience I can think of nobody better to ask the question, “What does the Government Accountability Office do?”

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our republic. It's a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be, and that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I'm your host, Kevin Kosar, and I'm a resident scholar at the American Enterprise Institute, a think tank in Washington DC.

Gene, welcome to the program.

Gene Dodaro:

It's a pleasure to be with you, Kevin.

Kevin Kosar:

Let's start at the very beginning. GAO was created a century ago. Why

Gene Dodaro:

GAO was created in 1921—right after World War I. The government had created a large debt during that time in order to promulgate the war, and there was concern about having a better, more disciplined way to handle the federal government's budget process. In the same legislation in which we were created, the Bureau of the Budget—which is now known as the Office of Management Budget (OMB) in the executive office of the President—was also created, and the very first requirement was put in place for the President to submit a budget annually to the Congress. Then GAO was placed in the legislative branch in order to provide a check and balance on the receipts and expenditures of federal funds and the proper application of those funds to meet the intent of the appropriation legislation for the Congress. So it was an arrangement put in place to provide more fiscal discipline to the federal government's budget process and execution.

Kevin Kosar:

At that time, GAO had a different name, which to some degree reflected its more limited mission at the time. What was it called back then?

Gene Dodaro:

It was the General Accounting Office. That's what it was when I first joined GAO in 1973. But at that time even, we were doing more than accounting, but that was our original name—the General Accounting Office.

Kevin Kosar:

It seems that fundamentally GAO was initially established to deal with a basic kind of principle-agent problem that Congress faces, which is: Congress as the principle passes a law puts money towards achieving the objectives in the law, but then the job of actually spending the money and doing the execution is over in the executive branch.

In terms of visibility and understanding, “Is this money going where it should go? Is it being used improperly?”, how is Congress to figure that out other than by hauling executives over and asking them, in which case you're relying upon information they provide. So GAO has the ability to get into the books of agencies, and to follow the money.

Gene Dodaro:

Absolutely, Kevin. One of the roles of GAO is to make sure that the appropriation laws enacted by the Congress are properly implemented. We audit the federal government's consolidated financial statements every year, and we’ve worked to create an arrangement where the Inspectors General of each major department and agency audit or arrange for independent audits of the books of the financial operations of each federal agency across the federal government. And then we review that work. It's done of course with our methodology, and then we audit some agencies individually, like the IRS for example. We audit all the receipts that they collect for the federal government. We audit the Bureau of Public Debt, we audit the Federal Deposit Insurance Corporation, and then we review all these other audits across government and then issue our report on the government's consolidated financial statements. We also issue legal decisions that anyone has a question in Congress about the proper application of the funds and whether it was done in accordance with appropriation law.

So we're very much in the business of oversight. Congress is very resourced by the executive branch, and that's why they need a strong GAO in order to provide that oversight over them, so the system of checks and balances in our government work properly and that the executive branch properly executes the laws that are put in place for Congress. And we've grown over the years to not just on fiscal issues, but also looking at whether or not government programs and activities and everything the federal government does is accordance with the authorizing legislation of the federal government's activities.

Actually, only about 10% of what we do now is in the original role that we had back in 1921 in the financial management area. The vast majority is looking to see whether programs, policies, regulations, and other activities put in place by Congress are operating as intended, and to make sure the government is operating as efficiently and effectively in accordance with congressional direction as possible, or whether there's need to make refinements and regulations and to help Congress with their fundamental oversight functions as well as their appropriation and responsibilities.

Kevin Kosar:

So the listener who surfs over to gao.gov and starts scanning all the great stuff you have there, might see the term "bid protest" and say, "Huh, what is that about?" What is bid protest and what's GAO's role there?

Gene Dodaro:

We've had that role for decades through the Competition in Contracting Act (1984). Every year, the federal government spends $500 billion or more to procure certain services items, etc. If you're a contractor that bids on a government contract and you don't win and you're concerned that the federal agency or department didn't follow the laws or things weren't properly clear in their procurement process or you think you weren't treated fairly, you can come to GAO and file a bid protest and say you don't think this was followed for the following reasons. GAO will issue an opinion within 100 days as to whether or not we sustain the protest or deny the protest.

Sometimes the agencies—once the protest is made and understanding the concerns that are being had—will take immediate action to rectify the situation. And so we have a team of highly skilled procurement experts in law here at GAO in our Office of General Counsel. They'll hold hearings, they'll take documents from the protestors and agencies, and then eventually they'll render a decision. We probably get about well over 2,000 of these bid protests every year. Competition for federal contracts is key. And in some areas there's been consolidation in the industries, which makes the competition a little bit more intense.

Kevin Kosar:

So I want to talk a little more about something you alluded to already, which is that GAO had this more limited mission 100 years ago, and it's subsequently been expanded. And if memory serves, one of the first expansions occurred around 1974. This was a period when Congress as a whole had just decided to bulk up its power. It was tired of being pushed around by the executive, whether it was President Nixon or President Johnson, and it just started investing in itself. It created a Congressional Budget Office, it created a new The topic of this episode is, “What does the U.S. Government Accountability Office do?”

To answer that question we have Gene Dodaro. He is the eighth Comptroller General of the United States—that means he is the head of the U.S. Government Accountability Office (GAO). He has held that position since December 2010. Prior to becoming the top dog at this government watchdog agency, Gene held other executive positions at GAO, including Chief Operating Officer. Remarkably, Gene has spent a half of a century at the agency. So, with all that experience I can think of nobody better to ask the question, “What does the Government Accountability Office do?”

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our republic. It's a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be, and that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I'm your host, Kevin Kosar, and I'm a resident scholar at the American Enterprise Institute, a think tank in Washington DC.

Gene, welcome to the program.

Gene Dodaro:

It's a pleasure to be with you, Kevin.

Kevin Kosar:

Let's start at the very beginning. GAO was created a century ago. Why

Gene Dodaro:

GAO was created in 1921—right after World War I. The government had created a large debt during that time in order to promulgate the war, and there was concern about having a better, more disciplined way to handle the federal government's budget process. In the same legislation in which we were created, the Bureau of the Budget—which is now known as the Office of Management Budget (OMB) in the executive office of the President—was also created, and the very first requirement was put in place for the President to submit a budget annually to the Congress. Then GAO was placed in the legislative branch in order to provide a check and balance on the receipts and expenditures of federal funds and the proper application of those funds to meet the intent of the appropriation legislation for the Congress. So it was an arrangement put in place to provide more fiscal discipline to the federal government's budget process and execution.

Kevin Kosar:

At that time, GAO had a different name, which to some degree reflected its more limited mission at the time. What was it called back then?

Gene Dodaro:

It was the General Accounting Office. That's what it was when I first joined GAO in 1973. But at that time even, we were doing more than accounting, but that was our original name—the General Accounting Office.

Kevin Kosar:

It seems that fundamentally GAO was initially established to deal with a basic kind of principle-agent problem that Congress faces, which is: Congress as the principle passes a law puts money towards achieving the objectives in the law, but then the job of actually spending the money and doing the execution is over in the executive branch.

In terms of visibility and understanding, “Is this money going where it should go? Is it being used improperly?”, how is Congress to figure that out other than by hauling executives over and asking them, in which case you're relying upon information they provide. So GAO has the ability to get into the books of agencies, and to follow the money.

Gene Dodaro:

Absolutely, Kevin. One of the roles of GAO is to make sure that the appropriation laws enacted by the Congress are properly implemented. We audit the federal government's consolidated financial statements every year, and we’ve worked to create an arrangement where the Inspectors General of each major department and agency audit or arrange for independent audits of the books of the financial operations of each federal agency across the federal government. And then we review that work. It's done of course with our methodology, and then we audit some agencies individually, like the IRS for example. We audit all the receipts that they collect for the federal government. We audit the Bureau of Public Debt, we audit the Federal Deposit Insurance Corporation, and then we review all these other audits across government and then issue our report on the government's consolidated financial statements. We also issue legal decisions that anyone has a question in Congress about the proper application of the funds and whether it was done in accordance with appropriation law.

So we're very much in the business of oversight. Congress is very resourced by the executive branch, and that's why they need a strong GAO in order to provide that oversight over them, so the system of checks and balances in our government work properly and that the executive branch properly executes the laws that are put in place for Congress. And we've grown over the years to not just on fiscal issues, but also looking at whether or not government programs and activities and everything the federal government does is accordance with the authorizing legislation of the federal government's activities.

Actually, only about 10% of what we do now is in the original role that we had back in 1921 in the financial management area. The vast majority is looking to see whether programs, policies, regulations, and other activities put in place by Congress are operating as intended, and to make sure the government is operating as efficiently and effectively in accordance with congressional direction as possible, or whether there's need to make refinements and regulations and to help Congress with their fundamental oversight functions as well as their appropriation and responsibilities.

Kevin Kosar:

So the listener who surfs over to gao.gov and starts scanning all the great stuff you have there, might see the term "bid protest" and say, "Huh, what is that about?" What is bid protest and what's GAO's role there?

Gene Dodaro:

We've had that role for decades through the Competition in Contracting Act (1984). Every year, the federal government spends $500 billion or more to procure certain services items, etc. If you're a contractor that bids on a government contract and you don't win and you're concerned that the federal agency or department didn't follow the laws or things weren't properly clear in their procurement process or you think you weren't treated fairly, you can come to GAO and file a bid protest and say you don't think this was followed for the following reasons. GAO will issue an opinion within 100 days as to whether or not we sustain the protest or deny the protest.

Sometimes the agencies—once the protest is made and understanding the concerns that are being had—will take immediate action to rectify the situation. And so we have a team of highly skilled procurement experts in law here at GAO in our Office of General Counsel. They'll hold hearings, they'll take documents from the protestors and agencies, and then eventually they'll render a decision. We probably get about well over 2,000 of these bid protests every year. Competition for federal contracts is key. And in some areas there's been consolidation in the industries, which makes the competition a little bit more intense.

Kevin Kosar:

So I want to talk a little more about something you alluded to already, which is that GAO had this more limited mission 100 years ago, and it's subsequently been expanded. And if memory serves, one of the first expansions occurred around 1974. This was a period when Congress as a whole had just decided to bulk up its power. It was tired of being pushed around by the executive, whether it was President Nixon or President Johnson, and it just started investing in itself. It created a Congressional Budget Office, it created a new Budgeting Act, it expanded the Legislative Reference Service into the Congressional Research Service, invested in more staff, and it gave GAO more to do.

What was that first expansion in the early '70s?

Gene Dodaro:

The first one came in 1970 when our role was expanded to include program evaluation plus all the financial stuff that we have. We rarely had anything taken away, it has been added to our responsibilities. So that was first, and you're exactly right. In 1974, there was legislation passed in the Budget Control and Impoundment Act, and previously certain presidents had tried to not spend money that Congress had appropriated and withhold the funds. There was a lot of concern and debate about whether that was constitutional or not, so there was eventually a law—an agreement—worked out, where presidents could submit what are called rescissions that where they would not spend the money that Congress has appropriated, but Congress would have to be notified. They would be given 45 days and they had to approve that rescission in order for it to take place. If not, then the executive branch was to then spend the money in accordance with congressional direction. There was also a different type of proposal called a deferral, which the President would defer the money, and unless Congress acted against that within certain timeframes, then that could be deferred. But most of its focus is on the rescission part. 

Once there's a special message from the President to the Congress in order to rescind, make a proposal for rescission, and occurs in these special messages, GAO has 10 days to inform the Congress of what the impact of that rescission would be on the particular programs or activities entail. And then Congress then acts within 45 days. Now, if Congress doesn't act affirmatively, the money is to be released. So our job is to make sure indeed the money is released and we're authorized to go to court in order to enforce the release of the money if the executive agencies did not do that on their own accord. The only one time have we had to do that was right after the law was passed in the '70s and it was involved in Housing and Urban Development Department. We actually notified Congress we were going to take this action, but before it got to court, HUD released the money, so it didn't really get that far. Since then we haven't really had any issues.

Now we also have responsibility where if we notice and through our work or it comes to our attention through other parties, and this will happen, federal decisions made by Congress and the corporation laws are virtually all public except for certain highly classified areas. So people know that they're to expect some money or the agency's supposed to spend it in various areas. So if it comes to our attention—somebody says, "Hey, this program was supposed to do X and it's not doing X,"—we'll go in and investigate on our own, and then we will issue a special message to the Congress if we think there was an impoundment made that wasn't reported to the Congress.

That's basically our role under that legislation and there'll be periods where there are no special messages to the Congress, there'll be other times that there are messages over time, and there'll be some where we've identified things that should have been reported to the Congress that weren't. We also have responsibility from our earlier role to make sure the agencies don't spend more than they're supposed to by the Congress, and that's called an anti-deficiency violation. And Congress asked us in recent times to keep a section on our website of all antideficiency violations, which we do do.

Kevin Kosar:

That's terrific.

GAO's duties continue to expand. I recall in the mid- to late-1990s, when Congress passed the Congressional Review Act, which is a vehicle by which Congress can strike down regulations, GAO was given additional reporting requirements related to regulations. But then 2004, GAO got its then new name, no longer was it the General Accounting Office, and it became the Government Accountability Office. With that, what other duties were added on?

Gene Dodaro:

Actually the name change, Kevin, was done to catch up with the past. As you've mentioned, a lot happened between 1921 and 2004. Our expansion into program evaluation, our expansion into the Budget Control and Impoundment Act, the Competition In Contracting Act and the bid protest area. And so the General Accounting Office didn't fit us anymore, and it was impediment to recruiting the multidisciplinary task force that we need to do. People would say, "Well why do I want to go work there? I'm not an accountant. I don't want to work for the General Accounting Office." In fact, all but maybe 10% of our people are not accountants right now. And so we changed the name in order to help us with recruiting and also to better explain to new members of Congress and staff that our role was well beyond the accounting functions that were our origins 100 years ago and that we've evolved over time to a very multidisciplinary agency that does work across the federal government on anything the federal government's doing or thinking about doing.

So we have a very wide portfolio. We provide support to over 90% of the standing committees of the Congress, and we have subject area experts in every part of the federal government now, whether it's defense, healthcare, environment, etc. We have then technical specialists, actuary scientists, information technology, cybersecurity specialists, etc. And so we have a very wide range of disciplines. And all our work now mostly is putting together interdisciplinary teams in order to carry out the audits and functions that we do across the government and issue the hundreds of reports that we issue every year and provide expert witnesses to the Congress for committees or whatever. So the name change, and it's really worked. It's really worked. It's made it easier to recruit. We have no problems recruiting high talented people. Most of our people have advanced degrees. We just have a terrific, terrific workforce. In fact, in the last three years in a row now, we've been ranked the top place to work in the federal government for midsized agencies. And that further helps in recruiting.

Kevin Kosar:

Well perhaps reflecting the old dictum, “no good deeded goes unpunished,” in 2018, Congress gave you yet another task to do. It asked you to pick up responsibilities that were similar to those that were once handled by the Office of Technology Assessment, an agency in the legislative branch that was abolished back in 1995. What's this new line of work like?

Gene Dodaro:

Excellent question, Kevin. That was sort of evolving over time.

In the early 2000's, we were asked to do a pilot to see if we could do technology assessments similar to what the Office of Technology Assessment had done. And then I started hiring additional people. In fact, I hired our first chief scientist back in 2008. So we were sort of growing that function for a while because we needed it to carry out our normal responsibilities as well as do these special projects that Congress had asked us to pilot. But as technology has evolved faster than any time in humankind, Congress was really asked to make a decision whether do we recreate the Office of Technology assessment, or do we bolster the capabilities that GAO has been growing over this period of time? And they went with that option.

And so in 2018, it created a special team for Science Technology Assessments and Analytics, we were able to populate that team with many people in GAO were already working on some of these things, but from 2019 to up to 2023, most recently, we've tripled the size of that team in GAO and recruiting a lot more people,...]]>3f16a579-2192-43eb-b3f0-35d9e9da294dMon, 07 Aug 2023 06:00:00 -050032:21falsefull3737What Is the Congressional Research Service, and What Does It Do? (with Kevin Kosar)The topic of this episode is, “What is the Congressional Research Service, and what does it do?”

The guest of this show is me, Kevin Kosar.  I spent a little over a decade at the Congressional Research Service (CRS) working as a non-partisan analyst and as an acting section research manager. Subsequent to my time at the agency, I was one of the individuals who advocated that Congress make CRS reports available to the public and not just legislators. I’ve also written about CRS and the other legislative branch support agencies, like CBO and GAO.

But it would be weird for me to ask myself questions and then answer them, so I asked my AEI colleague, Jaehun Lee, to serve as my interlocutor.

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our Republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation.

I’m your host Kevin Kosar and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington, DC.

All right, Jaehun, take it away.

Jaehun Lee:

Let's start simple. What is the Congressional Research Service?

Kevin Kosar:

The Congressional Research Service is the rare government agency where its name actually accurately describes what it does. It is a research and reference service for Congress. Congress is its lone client. CRS is an agency in inside the Library of Congress. So it is a federal government agency—not some sort of private sector research outfit—and its job is to support Congress and to do so by providing nonpartisan research, analysis, legal opinions, and just about anything else that Congress may require.

You think about Congress, it's comprised of regular Americans—anybody can run for Congress and anybody can become a congressional staffer. And when those people come to Washington DC, they're suddenly saddled with this immense responsibility of governing: they have to make laws, they have to oversee executive agencies, and they have to respond to lots of constituents. They have to receive interest groups who come through their doors, making demands of them related to policy and spending.

Nobody who enters that position is fully equipped to handle it. We're all amateurs when it comes to governing, and CRS plays a critical role in helping those folks govern. So if you're a brand new legislator and you're trying to figure out, “How do I introduce my first bill? Where do I even get this thing drafted?” You can call up CRS and they'll say, “Okay, here are the steps. Here's how you should reach out to legislative counsel within the chamber who can actually put your ideas into a template and grind it through.” They can help you on these sort of things. They can teach you the basics of legislative procedure: what's a filibuster? How does a congressional budget process work?

They also are a giant resource for facts and nonpartisan—and this is key, nonpartisan—analysis. Everybody in DC in the private sector to one degree or another has an angle, a perspective. Often, especially when you're talking about interest groups or lobbyists, they have specific policy goals and they are going to make arguments to persuade you to pick their policies or to support them. CRS doesn't do that. It doesn't tell Congress, “Here's the policy you should pick.” Instead, it says, “There are your options. All of them have benefits and costs. Here are the benefits. Here are the costs. Now you Congress decide.” That makes them a special resource, and that's why they are so trusted on Capitol Hill because they don't have a skin in the game. They're not pushing an agenda.

What do they do? They run training classes to teach you how to be a legislator or staffer. They'll look up facts and figures for you. They write short reports and primers that explain the history of various policies and programs so you as a legislator can understand why these programs and policies exist and how they have evolved over time. They do so much for Congress.

Jaehun Lee:

How many people work at CRS, and how are they different from staff working in the House and Senate?

Kevin Kosar:

Presently, a little over 600 people work at CRS, so that makes it a sizable think tank and reference service within the library. But I should put that number within context. About 40 years ago—during the 1980s—CRS had over 900 employees. It had a lot more people power than it does today.

How are they different from staff working in the House and the Senate? CRS staff are civil servants, meaning they are hired on nonpartisan objective criteria—the so-called KSAOs: knowledge, skills, abilities and other characteristics. It's a rigorous process with lots of stages where—if you want to get a job at CRS—you have to show you got the education credentials, the research chops, and the various skills that you need to do the job. One of the things that helped get me a job at CRS was the fact that I had spent four or five years reading congressional documents in the course of producing my dissertation, so I was very familiar with the committee processes for doing oversight and policymaking and the larger legislative arena and how it operates.

That's different from Capitol Hill. If you want to work for a member of the House, member of the Senate, one of the committees, you're going to be picked with some consideration of your partisanship. That doesn't happen at CRS. Not at all. Not ever. People who work on Capitol Hill, their jobs are very diverse in nature. You have some people who are just devoted to constituent service, whose job is not really to think about policy. You have people who are devoted to working on press and public communications. You have folks who do a whole lot of different things. CRS is a lot more narrow-banded; you primarily have people with academic expertise-type training and experience. And of course, you have the critical core of the reference librarians, knowledge services folks. That's what comprises the agency.

Jaehun Lee:

Why did Congress create CRS?

Kevin Kosar:

The story starts at least a hundred years ago—around 1914. To a degree, what we had going on was this recognition of an aspiration of the Enlightenment, which had happened centuries before, which is that reason, facts, analyses should come to bear on governance. Now, we all know Congress is comprised of individuals representing diverse districts and states, and they are very much influenced by parochial interests—people back home—and they're influenced and informed very much by interest groups.

CRS was created at a time when there was a broader effort to bring facts, analysis and reason into the legislative process. This got its start in Wisconsin and New York, where the legislatures there got the idea, 'Maybe we should have some experts we can rely upon who can give us the information we need to give us the ability to make smarter decisions and make policy that works better.' To a degree, that—making good policy that works and pleases voters—can help with the eternal goal of a politician getting re-elected. So that's why CRS was created in 1914. It was created as the Legislative Reference Service.

To a degree, it built off infrastructure that had been created back in 1800. I mean, why did we have a Library of Congress? Answer: there was this idea amongst the Founders that it would be good if we looked at some books, studied some facts and figures before we legislate, and so that's why the Library of Congress was created initially. But 1914 was a moment where they said, "We should have people in there who are devoted to producing materials that are useful to legislators—such as compilations of statutes about particular topic (e.g., maybe tariffs or something related to agriculture) and having them on hand—and these people should be available at the beckon call of the legislature as needed. That was the original Legislative Reference Service.

Fast forward to 1946, Congress was in the process of clawing back power. The executive branch had grown massively during the Great Depression, New Deal, and World War II. Congress in the mid-40s said, "We have to reassert ourselves as the First Branch." And they did a whole lot of things, but one of which was they beefed up the Legislative Reference Service and started requiring it to have real policy nerds on staff in particular issue areas. During the early 70s, the ballooning of the executive branch prompted Congress to reassert itself and it took the LRS, The topic of this episode is, “What is the Congressional Research Service, and what does it do?”

The guest of this show is me, Kevin Kosar.  I spent a little over a decade at the Congressional Research Service (CRS) working as a non-partisan analyst and as an acting section research manager. Subsequent to my time at the agency, I was one of the individuals who advocated that Congress make CRS reports available to the public and not just legislators. I’ve also written about CRS and the other legislative branch support agencies, like CBO and GAO.

But it would be weird for me to ask myself questions and then answer them, so I asked my AEI colleague, Jaehun Lee, to serve as my interlocutor.

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our Republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation.

I’m your host Kevin Kosar and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington, DC.

All right, Jaehun, take it away.

Jaehun Lee:

Let's start simple. What is the Congressional Research Service?

Kevin Kosar:

The Congressional Research Service is the rare government agency where its name actually accurately describes what it does. It is a research and reference service for Congress. Congress is its lone client. CRS is an agency in inside the Library of Congress. So it is a federal government agency—not some sort of private sector research outfit—and its job is to support Congress and to do so by providing nonpartisan research, analysis, legal opinions, and just about anything else that Congress may require.

You think about Congress, it's comprised of regular Americans—anybody can run for Congress and anybody can become a congressional staffer. And when those people come to Washington DC, they're suddenly saddled with this immense responsibility of governing: they have to make laws, they have to oversee executive agencies, and they have to respond to lots of constituents. They have to receive interest groups who come through their doors, making demands of them related to policy and spending.

Nobody who enters that position is fully equipped to handle it. We're all amateurs when it comes to governing, and CRS plays a critical role in helping those folks govern. So if you're a brand new legislator and you're trying to figure out, “How do I introduce my first bill? Where do I even get this thing drafted?” You can call up CRS and they'll say, “Okay, here are the steps. Here's how you should reach out to legislative counsel within the chamber who can actually put your ideas into a template and grind it through.” They can help you on these sort of things. They can teach you the basics of legislative procedure: what's a filibuster? How does a congressional budget process work?

They also are a giant resource for facts and nonpartisan—and this is key, nonpartisan—analysis. Everybody in DC in the private sector to one degree or another has an angle, a perspective. Often, especially when you're talking about interest groups or lobbyists, they have specific policy goals and they are going to make arguments to persuade you to pick their policies or to support them. CRS doesn't do that. It doesn't tell Congress, “Here's the policy you should pick.” Instead, it says, “There are your options. All of them have benefits and costs. Here are the benefits. Here are the costs. Now you Congress decide.” That makes them a special resource, and that's why they are so trusted on Capitol Hill because they don't have a skin in the game. They're not pushing an agenda.

What do they do? They run training classes to teach you how to be a legislator or staffer. They'll look up facts and figures for you. They write short reports and primers that explain the history of various policies and programs so you as a legislator can understand why these programs and policies exist and how they have evolved over time. They do so much for Congress.

Jaehun Lee:

How many people work at CRS, and how are they different from staff working in the House and Senate?

Kevin Kosar:

Presently, a little over 600 people work at CRS, so that makes it a sizable think tank and reference service within the library. But I should put that number within context. About 40 years ago—during the 1980s—CRS had over 900 employees. It had a lot more people power than it does today.

How are they different from staff working in the House and the Senate? CRS staff are civil servants, meaning they are hired on nonpartisan objective criteria—the so-called KSAOs: knowledge, skills, abilities and other characteristics. It's a rigorous process with lots of stages where—if you want to get a job at CRS—you have to show you got the education credentials, the research chops, and the various skills that you need to do the job. One of the things that helped get me a job at CRS was the fact that I had spent four or five years reading congressional documents in the course of producing my dissertation, so I was very familiar with the committee processes for doing oversight and policymaking and the larger legislative arena and how it operates.

That's different from Capitol Hill. If you want to work for a member of the House, member of the Senate, one of the committees, you're going to be picked with some consideration of your partisanship. That doesn't happen at CRS. Not at all. Not ever. People who work on Capitol Hill, their jobs are very diverse in nature. You have some people who are just devoted to constituent service, whose job is not really to think about policy. You have people who are devoted to working on press and public communications. You have folks who do a whole lot of different things. CRS is a lot more narrow-banded; you primarily have people with academic expertise-type training and experience. And of course, you have the critical core of the reference librarians, knowledge services folks. That's what comprises the agency.

Jaehun Lee:

Why did Congress create CRS?

Kevin Kosar:

The story starts at least a hundred years ago—around 1914. To a degree, what we had going on was this recognition of an aspiration of the Enlightenment, which had happened centuries before, which is that reason, facts, analyses should come to bear on governance. Now, we all know Congress is comprised of individuals representing diverse districts and states, and they are very much influenced by parochial interests—people back home—and they're influenced and informed very much by interest groups.

CRS was created at a time when there was a broader effort to bring facts, analysis and reason into the legislative process. This got its start in Wisconsin and New York, where the legislatures there got the idea, 'Maybe we should have some experts we can rely upon who can give us the information we need to give us the ability to make smarter decisions and make policy that works better.' To a degree, that—making good policy that works and pleases voters—can help with the eternal goal of a politician getting re-elected. So that's why CRS was created in 1914. It was created as the Legislative Reference Service.

To a degree, it built off infrastructure that had been created back in 1800. I mean, why did we have a Library of Congress? Answer: there was this idea amongst the Founders that it would be good if we looked at some books, studied some facts and figures before we legislate, and so that's why the Library of Congress was created initially. But 1914 was a moment where they said, "We should have people in there who are devoted to producing materials that are useful to legislators—such as compilations of statutes about particular topic (e.g., maybe tariffs or something related to agriculture) and having them on hand—and these people should be available at the beckon call of the legislature as needed. That was the original Legislative Reference Service.

Fast forward to 1946, Congress was in the process of clawing back power. The executive branch had grown massively during the Great Depression, New Deal, and World War II. Congress in the mid-40s said, "We have to reassert ourselves as the First Branch." And they did a whole lot of things, but one of which was they beefed up the Legislative Reference Service and started requiring it to have real policy nerds on staff in particular issue areas. During the early 70s, the ballooning of the executive branch prompted Congress to reassert itself and it took the LRS, turned it into the CRS, and did a whole bunch of other things to reassert itself.

So the CRS we have today was very much created at a time when Congress felt like the executive branch had a whole lot of expertise to draw upon—all the people who work in the many agencies over there—and Congress didn't. Knowledge is power, and—if you're the legislative branch—you don't want to have to rely on the executive branch for all the information. That puts you in a weak position. So Congress invested in itself by bulking up the CRS and flooding its ranks with experts.

Jaehun Lee:

You mentioned during the introduction that there are other legislative branch support agencies. How is CRS like or different from the GAO and the CBO?

Kevin Kosar:

They are alike insofar as they are agencies created to serve Congress. They are staffed with nonpartisan people, who have expertise of one sort or another that is considered of use in the legislative process. GAO was created a century ago and began as an agency that basically followed the money. They were the auditors who were supposed to tabulate where all the dollars being sent out the door by the executive branch went. Later, their mission was expanded to do other stuff. They had to do legal opinions related to the spending of money. They hear bid protests, where if you are a contractor bidding on some government project and think that you got unfairly treated in the course of it, you can file a bid protest and GAO has to look at that. GAO also got involved in doing program evaluation, looking at whether various policies worked, and they have investigative authority, which means they can go into agencies and get their hands on data and other materials.

CBO was created in the early 70s, at that same time when Congress was reasserting itself, pushing back against a president who had thrown so much weight around in terms of budgeting and spending. CBO has a statutory mission to support Congress in various ways. They have to produce various estimates and reports related to federal spending and the economy and the revenues coming in. They also score bills reported from committee—giving them a price tag on the estimated costs and estimated revenues that might be coming in.

CRS meanwhile is a bit different. They do a lot of stuff as I mentioned earlier: running the classes teaching legislators, acting as a daily reference desk, etc. If you have a question about, for example, spending on a particular defense program, you—a congressional staffer or a legislator—are not going to call CBO or the GAO to ask because those agencies are really not designed to take lots of requests from individual legislators and staff. Instead, you call up CRS, because CRS is your help desk.

GAO does it sometimes, but CRS often will let its people work with a committee or member of Congress for an extended period of time. In the old days, they used to physically detail people over to committees. But these days, it's more along the lines of if a committee is really looking into something—like how to help the ailing US Postal Service—that committee can keep asking you questions and asking you to come over and help them, gobble up your bandwidth, and you—the analyst—will just do that. That's neat because it allows Congress when it has various needs to just call upon CRS to flow in.

Jaehun Lee:

What are the challenges facing CRS today?

Kevin Kosar:

One of the challenges CRS faces is an eternal one: the Hill is a very political place and CRS is a very factual, analytical place. And we know in politics facts and analysis can often offend people because it challenges their rhetoric, or a policy or position they have staked out. I've found quotes going back into the 50s, where members of Congress were lamenting the fact that the agency—then the Legislative Reference Service—was hesitant to speak clearly about the facts because they didn't want to face blowback. Mind you, the agency is wholly funded by Congress, so obviously you don't want them to cut your budget. So there's this eternal hesitancy to speak too clearly for fear of getting political blowback.

Another big-picture challenge for the agency is that the 70s—when CRS was relaunched—was a time of very strong congressional committees. Committees dominated the policymaking and oversight process, and CRS was set up initially to primarily serve committees. In the 70s, there used to exist this exercise where—as a new Congress was coming in—CRS was expected to put before Congress a list of the most important policy priorities that Congress should attend to. That just doesn't happen today. So we've evolved to an institution—a Senate, a House, and a Congress collectively that's much less committee driven and much more top-down led by the Speaker and majority leader and their minority counterparts.

And it's a much more partisan, polarized environment. It's a lot more transparent environment. It's a lot more contentious environment.

And so CRS can sometimes end up as collateral damage when party conflict gets intense. They need to find their way between wanting to do the important stuff of serving the committees, but realizing that in many cases committees are not leaning heavily upon them and going to other sources of information. As a result, so much CRS workflow today is driven by individual legislators. That's just a different model than what's conceived in the early 70s. So that's tricky.

I think the digital revolution threw the agency a real curve ball. When I started there in 2003, the internet was still pretty young. Cell phones were still pretty primitive, and the agency at the time couldn't see around the corner—let’s be honest, a lot of people couldn't see around the corner. And they were very anchored on the old way of, “Let's stick with doing white papers and Congress can physically come over and get copies of our white papers, or we can send them there to Congress through interoffice mail.” Then, the digital revolution happens and everything changes. A 30-page white paper doesn't look good on a Blackberry or on a brand new spanking iPhone. So it’s a lot figuring out how to be that nonpartisan reference and research service in the 21st century, adapting to the changing technologies and the expectation of a faster news cycle, faster responsiveness, trying to get by with fewer employees but escalating demands from Congress. It's a lot for the agency to tackle.

Jaehun Lee:

What does the future look like for CRS?

Kevin Kosar:

Certainly, to a degree, it looks like the past. CRS serves a really unique niche. Again, they are the help desk, the trainers, the nonpartisan folks that any congressional staffer can call up and get help from. I can't tell you how many times I've been out on the street or at a party or some parent gathering, and I mentioned that I used to work at CRS and a former staffer who I'm talking to is like, "Oh my God, you did? CRS saved me so many times." What did they mean by that? What they meant was that their boss dropped a policy question or a political question in their lap that they had no clue what the answer was, and they went to CRS and found an expert who was able to bone them up on the basics very quickly so that they could do their job and not get in trouble with their boss.

I don't think that's going to change. Our legislature is always going to be an amateur legislature. There's always going to be questions, and they're always going to need experts that they can trust, people who they know don't have a skin in the game and who are not trying to manipulate them. So that'll stay the same.

What's going to change? Certainly the ongoing internet revolution. Certainly the structure of Congress, whether it continues to be heavily a leadership driven enterprise, whether it continues to be intensely polarized—CRS has to be responsive to that environment. It has to deal with that operating context. What's going to happen with greater technological developments like AI? We're early on in AI and already seeing signs that AI can produce primer type materials, and that prompts the question of, “Is that going to be taken away from CRS analysts?” You might just have AI machines writing short primer reports. Is that the future? Does that mean CRS's mission will shift? I don't know.

I'd also say that as one last factor—that's kind of an unknown—is, “How is the agency going to compete for legislators’ attention and staff attention in the 21st century?” Again, CRS has the great...]]>d07debe5-d4bb-4a47-9676-f8b88ecd9901Mon, 03 Jul 2023 06:00:00 -050024:09falsefull3636Does the Senate Still Work? (with Marty Gold)The topic of this episode is, “Does the Senate still work?”

To answer that question, we have Martin Gold, a partner with Capital Council, LLC, a government relations firm in Washington, DC. Marty spent many years in the US Senate working for individual senators, committees, and a majority leader. He also is the author of the book, Senate Procedure and Practice (Rowman and Littlefield, 2018), which explains how the Chamber operates.

So, Marty has both an inside view of the Senate and he has a long view of it, which is why I wanted to have him on the program to answer the question, “Does the Senate still work?”

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our Republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation.

I'm your host Kevin Kosar and I'm a resident scholar at the American Enterprise Institute, a think tank in Washington, DC.

Welcome to the program.

Martin Gold:

Thank you for having me, Kevin.

Kevin Kosar:

The subject of this episode is, “Does the Senate still work?” So it occurs to me that—to answer that question—it might be helpful if I first asked you, “What does a working Senate look like?”

Martin Gold:

A working Senate is a Senate that is mindful of its constitutional responsibilities, which it has many. Some powers are expressly stated in the Constitution and are unicameral powers, like the power over nominations, the power over treaties, or the power to run impeachment trials. And then a number of other powers that are obviously exercised on a bicameral basis.

But I think if you go beyond the text of the Constitution itself and consider the constitutional purpose of the Senate, its purpose is to slow things down and be a more deliberate body. James Madison talked about, in the Federalist Papers, the Senate being a necessary fence against the passions of the House of Representatives. The rules and the precedents of the House and the mechanisms of the House allow it to move very quickly when the majority party wants to move quickly and the minority has very little, if anything, to say about it and it can push things through on a fairly instantaneous basis. It's a legislative juggernaut.

The purpose of the Senate is to be the necessary fence against that, to slow things down, and to create a more deliberative process. And when you get beyond the stated powers of the Senate and the Constitution and look also to the purpose of why we have a bicameral legislature, I think the Senate, in fact, does serve that function quite well. It doesn’t serve it in exactly the same way as it may have served it years ago. Senates do change, not only on the basis of the people who are serving in the body but also on the national mood of the country. When people talk about polarization in the Senate. It has to be remembered that the Senate is a political institution and that the polarization in the Senate reflects the polarization of the American people. If the Senate were really out of step with the American people, query how many of those senators would remain senators as the public thought that somehow or other they really weren’t being appropriately represented in the place. So how the Senate goes about serving the constitutional functions—both formal and informal—is different perhaps than it may have been in the past. Nevertheless, I still think it is the necessary fence in the great constitutional structure we have.

Kevin Kosar:

I want to quote something from the start of your book where you write, “If one were to encapsulate the difference between House and Senate procedure in nine words, they would be ‘Dominance of the offense versus dominance of the defense.’” I think it’s useful for our listeners to get a sense of how is the Senate different from the House. Okay, they play more defense over there. They are the fence you were talking about. Why does it work that way?

Martin Gold:

I should begin by explaining what that terminology means because I’ve used it for years and years and it remains true. If they got rid of the filibuster in the Senate it might not be so true, but it’s true now anyhow. The House is an institution, particularly as that has evolved over American history, where the rules and the precedents of the institution and the mechanisms of the institution—such as the House Rules Committee—all served to enhance majority party power. Meaning, in effect, that a majority that can hang together, particularly on procedural questions, can not only set up the terms for debate and consideration in the House but can really push things through on a very rapid basis without, again, much accord being given to minority perspectives or viewpoints. That’s dominance of the offense.

The Senate is exactly the opposite. The rules of the Senate and the precedents of the Senate and the absence of mechanisms such as a rules committee all serve to enhance the power of minority parties, minority coalitions, and individual senators. So it is a place where the defense really can dominate the institution. It isn't to say that the defense can just stop anything it wants to. It is to say that things take longer to get through. Sometimes they can be stopped and sometimes the defense can use its power to modify the procedures by which things will be considered. But the bottom line of it is: not only is the Senate different from the House in obvious ways such as the sense of the length of terms of the members and the way we have two per state equality of membership (as opposed to proportionality) or the just general size of the body, it is also different in terms of how it exercises its power under the Constitution.

It's one of the things in the Constitution that people tend to overlook. The framers of the Constitution did not write the rules of the Senate, nor did they write the rules of the House of Representatives. They wrote no rules at all. They, however, gave both senators and representatives the power to govern themselves however they saw fit. And so it can be argued that the rules that have developed in the House over the course of time serve the constitutional purposes that the House is supposed to serve and that the rules of the Senate—as they have evolved over time—serve the constitutional purposes of the Senate. Again, the framers did not arrange for those things. Senators could have structured rules however they wanted to structure them, same with representatives. But the evolution over time, I think does, in fact, serve the broad constitutional purposes that you have in a bicameral legislature. Otherwise, you could just have a unicameral legislature.

Kevin Kosar:

Since you mentioned rules, I figured I want to just drill down a little bit more on this. Every two years we have elections and we get a new Congress. As part of that, the House of Representatives will review its rules and they’ll vote to alter them. And this is typically a partisan exercise where whichever party has the most people gets to rewrite the rules. Senate doesn’t work that way, does it?

Martin Gold:

The Senate does not because 100% of the House of Representatives is freshly elected every two years. Therefore, the rules of one Congress do not carry over to the next Congress. There is, I should say, substantial similarity between the rules of one Congress and the rules of the next. The rules of the Pelosi Congress and the rules of the present Congress are substantially similar—although not identical because the Republicans, when they came in and had that highly-publicized rules controversy wrapped around the election of Kevin McCarthy as Speaker, did make some changes to the last set of rules that Pelosi had had as Pelosi and the Democrats made changes to the Ryan rules that preceded them. So while there is vast similarity, there are also important differences. The Senate, however, is a continuing body. Two-thirds of the senators continue over from one election to the next. It is supposed to be that way.

You could have otherwise had the framers elect the entire Senate all at once. But the framers divided the Senate into three classes, making sure there was always a quorum of the Senate present so that if you replaced every single senator who was up for election in a particular election cycle, you would still have stability in the chamber. And because of that, the rules of the Senate do carry over from one Congress to the next. They are sometimes changed, but when Mitch McConnell was the majority leader, for example, there was not a single time in his tenure as leader where he proposed a rules change. And Chuck Schumer has been the leader now going on three years, he hasn't made changes either. The last time they formally amended...]]>The topic of this episode is, “Does the Senate still work?”

To answer that question, we have Martin Gold, a partner with Capital Council, LLC, a government relations firm in Washington, DC. Marty spent many years in the US Senate working for individual senators, committees, and a majority leader. He also is the author of the book, Senate Procedure and Practice (Rowman and Littlefield, 2018), which explains how the Chamber operates.

So, Marty has both an inside view of the Senate and he has a long view of it, which is why I wanted to have him on the program to answer the question, “Does the Senate still work?”

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our Republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation.

I'm your host Kevin Kosar and I'm a resident scholar at the American Enterprise Institute, a think tank in Washington, DC.

Welcome to the program.

Martin Gold:

Thank you for having me, Kevin.

Kevin Kosar:

The subject of this episode is, “Does the Senate still work?” So it occurs to me that—to answer that question—it might be helpful if I first asked you, “What does a working Senate look like?”

Martin Gold:

A working Senate is a Senate that is mindful of its constitutional responsibilities, which it has many. Some powers are expressly stated in the Constitution and are unicameral powers, like the power over nominations, the power over treaties, or the power to run impeachment trials. And then a number of other powers that are obviously exercised on a bicameral basis.

But I think if you go beyond the text of the Constitution itself and consider the constitutional purpose of the Senate, its purpose is to slow things down and be a more deliberate body. James Madison talked about, in the Federalist Papers, the Senate being a necessary fence against the passions of the House of Representatives. The rules and the precedents of the House and the mechanisms of the House allow it to move very quickly when the majority party wants to move quickly and the minority has very little, if anything, to say about it and it can push things through on a fairly instantaneous basis. It's a legislative juggernaut.

The purpose of the Senate is to be the necessary fence against that, to slow things down, and to create a more deliberative process. And when you get beyond the stated powers of the Senate and the Constitution and look also to the purpose of why we have a bicameral legislature, I think the Senate, in fact, does serve that function quite well. It doesn’t serve it in exactly the same way as it may have served it years ago. Senates do change, not only on the basis of the people who are serving in the body but also on the national mood of the country. When people talk about polarization in the Senate. It has to be remembered that the Senate is a political institution and that the polarization in the Senate reflects the polarization of the American people. If the Senate were really out of step with the American people, query how many of those senators would remain senators as the public thought that somehow or other they really weren’t being appropriately represented in the place. So how the Senate goes about serving the constitutional functions—both formal and informal—is different perhaps than it may have been in the past. Nevertheless, I still think it is the necessary fence in the great constitutional structure we have.

Kevin Kosar:

I want to quote something from the start of your book where you write, “If one were to encapsulate the difference between House and Senate procedure in nine words, they would be ‘Dominance of the offense versus dominance of the defense.’” I think it’s useful for our listeners to get a sense of how is the Senate different from the House. Okay, they play more defense over there. They are the fence you were talking about. Why does it work that way?

Martin Gold:

I should begin by explaining what that terminology means because I’ve used it for years and years and it remains true. If they got rid of the filibuster in the Senate it might not be so true, but it’s true now anyhow. The House is an institution, particularly as that has evolved over American history, where the rules and the precedents of the institution and the mechanisms of the institution—such as the House Rules Committee—all served to enhance majority party power. Meaning, in effect, that a majority that can hang together, particularly on procedural questions, can not only set up the terms for debate and consideration in the House but can really push things through on a very rapid basis without, again, much accord being given to minority perspectives or viewpoints. That’s dominance of the offense.

The Senate is exactly the opposite. The rules of the Senate and the precedents of the Senate and the absence of mechanisms such as a rules committee all serve to enhance the power of minority parties, minority coalitions, and individual senators. So it is a place where the defense really can dominate the institution. It isn't to say that the defense can just stop anything it wants to. It is to say that things take longer to get through. Sometimes they can be stopped and sometimes the defense can use its power to modify the procedures by which things will be considered. But the bottom line of it is: not only is the Senate different from the House in obvious ways such as the sense of the length of terms of the members and the way we have two per state equality of membership (as opposed to proportionality) or the just general size of the body, it is also different in terms of how it exercises its power under the Constitution.

It's one of the things in the Constitution that people tend to overlook. The framers of the Constitution did not write the rules of the Senate, nor did they write the rules of the House of Representatives. They wrote no rules at all. They, however, gave both senators and representatives the power to govern themselves however they saw fit. And so it can be argued that the rules that have developed in the House over the course of time serve the constitutional purposes that the House is supposed to serve and that the rules of the Senate—as they have evolved over time—serve the constitutional purposes of the Senate. Again, the framers did not arrange for those things. Senators could have structured rules however they wanted to structure them, same with representatives. But the evolution over time, I think does, in fact, serve the broad constitutional purposes that you have in a bicameral legislature. Otherwise, you could just have a unicameral legislature.

Kevin Kosar:

Since you mentioned rules, I figured I want to just drill down a little bit more on this. Every two years we have elections and we get a new Congress. As part of that, the House of Representatives will review its rules and they’ll vote to alter them. And this is typically a partisan exercise where whichever party has the most people gets to rewrite the rules. Senate doesn’t work that way, does it?

Martin Gold:

The Senate does not because 100% of the House of Representatives is freshly elected every two years. Therefore, the rules of one Congress do not carry over to the next Congress. There is, I should say, substantial similarity between the rules of one Congress and the rules of the next. The rules of the Pelosi Congress and the rules of the present Congress are substantially similar—although not identical because the Republicans, when they came in and had that highly-publicized rules controversy wrapped around the election of Kevin McCarthy as Speaker, did make some changes to the last set of rules that Pelosi had had as Pelosi and the Democrats made changes to the Ryan rules that preceded them. So while there is vast similarity, there are also important differences. The Senate, however, is a continuing body. Two-thirds of the senators continue over from one election to the next. It is supposed to be that way.

You could have otherwise had the framers elect the entire Senate all at once. But the framers divided the Senate into three classes, making sure there was always a quorum of the Senate present so that if you replaced every single senator who was up for election in a particular election cycle, you would still have stability in the chamber. And because of that, the rules of the Senate do carry over from one Congress to the next. They are sometimes changed, but when Mitch McConnell was the majority leader, for example, there was not a single time in his tenure as leader where he proposed a rules change. And Chuck Schumer has been the leader now going on three years, he hasn't made changes either. The last time they formally amended the Senate rules was in 2013.

Here's another thing to note—and you alluded to this—in the House what the minority thinks about the rules change is irrelevant because the majority will just pass the change it wants to pass. In the Senate, it only takes a majority of senators voting to change the rules. However, there is a special requirement to end debate on the rules change. We're talking about formal amendments to the rules. There's a special requirement that says you've got to have a two-thirds vote to invoke cloture and end debate on the rules change. So what does it mean? It means that if you're going to get an amendment to the rules of the Senate, the majority cannot steamroll the minority. They're going to have consensus with the minority. The last time we had a rules change in the Senate, I think the vote was something like 86 to nine for the rules change.

So what does it mean? What’s it show? It shows that when Senator Reid was then the majority leader sought the change, he had to negotiate the change with the minority and gain consensus from the minority leadership. If they did not have consensus from the minority leadership, the vote wouldn’t have been 86 to nine. There would have been a substantial amount of dissent, so much so that I doubt seriously they could have ended debate on the change. So not only do the rules continue over in the Senate, but because of minority rights that exist in the Senate in ways that do not exist in the House, the minority has something to say about the content of the rules change.

Kevin Kosar:

Just to go a little bit further for our listeners on this issue of rules and how a chamber operates, if the Senate doesn’t frequently change its rules, does it change other things about how it operates? You have a switch in party control of the Senate, going from McConnell to Schumer. Do they have written agreements between the parties about how committee resources will be divvied up, for how other things will be done? How do they coordinate?

Martin Gold:

They have organizing resolutions at the beginning of the Congress. How many members are going to serve on what committees? What’s the ratio of minority to majority membership on the committee? What about the resources of the committee? We just had a situation in the last Congress that was quite uncommon with the 50-50 Senate where committee resources were divided absolutely evenly. It’s normally a two-thirds versus one-third division on staff that can be, for example, determined to be partisan staff as opposed to a purely administrative staff, things of that sort. So they have a negotiation that gives you an agreement on organizing resolutions and when those ratios are agreed to and then the members are assigned, that’s all part of a big negotiation. So that is a normal thing. It happens every two years.

But I thought, Kevin, that you might be going someplace else with that question. So if you’ll permit me to answer the question you didn’t ask, we’ve talked here about formal amendments to the standing rules, yet procedures do change and they’re not always changing by formal amendments to the standing rules. So if you think about it this way, the Constitution gives the Senate, like the House, the power of self-governance. How do you manifest that power? Well, the rules of the chamber are one manifestation of that power. You set up rules to govern yourself. Unanimous consent agreements, which they enter into all the time in the Senate, are another manifestation of that rulemaking power. Expedited procedure laws like the Congressional Budget Act provide a process for considering budget resolutions and budget reconciliation bills. Those expedited procedure laws are another example of the rulemaking power. And a fourth example, and quite important, is precedent, the precedents of the chamber.

Now, precedents most often interpret language in the rules—they give texture to that language. However, precedents will sometimes outright contradict the rules. And some will say, "Well, how can a precedent contradict a rule?" Because the precedent, like the rule, is an exercise of the rule-making power. Those exercises stand on equal footing. The latest exercise in time is the one that prevails. For example, Senate Rule 22 says that to end debate to a normal cloture motion, not on a rules change, but a normal cloture motion on a nomination takes 60 votes. But because of precedents that were set for every nominee except for the Supreme Court in 2013 and in 2017 on the Supreme Court, it only takes a majority of senators voting not 60. The rule still says 60; the precedent contradicts the rule. The rule was never amended formally, but the precedent is what governs because the precedent of 2013 or 2017 is later in time than the rule of 1975.

So when we talk about how the Senate governs itself, the examples of those precedents were not an example like the one I gave of bicameral negotiation and agreement. They were examples of the majority party at that moment pressing down—or maybe you could say, oppressing—the minority of the moment. So in the first case in 2013, it was done by the Democratic majority, and in 2017 it was done by the Republican majority. So you’re in this kind of rough position. You have a set of rules that people can and should be expected to live by, but it is also correct that there is not a rule that you can write that will withstand the will of a willful majority to write a precedent that could contradict that rule.

Therefore, we come to the great unwritten rule, which is the rule of self-restraint. Any majority has the power to contradict anything, past rules, precedents, anything. But whether they can do it and whether they should do it are two separate questions, and the great question for Senate governance now and I think going forward is the degree to which self-restraint will triumph over the temptation to rearrange the rules to serve your immediate political purposes.

Kevin Kosar:

That very nicely sets up my next question, which really speaks to the issue of the episode in a straightforward way, which is, the Senate has various constitutional responsibilities such as considering treaties and nominations and a whole lot more. How well is the Senate performing these responsibilities today? Is it doing better or worse than it did when you first worked in the Senate?

Martin Gold:

When I first worked in the Senate—now, we’re going back over 50 years because I started working there in 1972 for a five-term senator from Oregon, Mark Hatfield—the Senate of those days was a four-party Senate, even though you only had two parties. But it was a four-party Senate with—if I can use the terminology of those days—liberal Republicans, conservative Republicans, liberal Democrats, and conservative Democrats. There were many fewer examples of party-line voting. Instead, you had cross-party coalitions that often formed and were sometimes moved around and so forth. As people executed their constitutional responsibilities, you didn’t have the polarization. You had, I think, because of the absence of that polarization, a greater degree of self-restraint. You didn’t have the tribal atmosphere driving people to creative procedural solutions that would serve political ends. That was the Senate that I knew when I first started.

This Senate is very much a two-party Senate, not a four-party Senate. You do have people on, let's say the left end of the Republican caucus and you have people on the right end of the Democratic, but nevertheless, there is a fundamental homogeneity in both caucuses. So the Senate, obviously, is not going function exactly as it did. You're going to have more party line voting than you had. You're going to have a greater degree of aggressiveness both in the exercise of minority rights and also in majority rights. Just to give you an example, cloture motions used to be very uncommon. Maybe they’d be a dozen in a year, something like that. Now there are 20 times that in a Congress. You now have hundreds of cloture votes in a Congress.

If you don’t have unanimous consent to move something, which is almost inevitable, it’s going to require cloture, 60 votes in order to move something. So you not only see the 60-vote threshold imposed on cloture votes, you see it imposed on unanimous consent agreements, for example, that say, “Well, we won’t make you run through the cloture process, but we will make you adhere to the cloture threshold. If that amendment is going to pass, it’s going to need 60 votes. If that bill is going to pass, it’s going to need 60 votes.”

Cooperation in the modern Senate often takes that form. “We’ll let you avoid the cumbersome cloture process”—and it is a cumbersome process—“We’ll avoid the cumbersome cloture process and allow you to move things more rapidly, but...]]>45174447-522d-4187-bf3c-7acc23fcee84Mon, 05 Jun 2023 06:00:00 -050029:26falsefull3535Why Is Congressional Oversight Important, and How Can It Be Done Well? (with Elise Bean)The topic of this episode is, “Why is congressional oversight important, and how can it be done well?”

To help us tackle this subject we have Elise Bean. She is the Director of the Washington Office of Wayne State University’s Levin Center. Elise spent 30 years in Congress working as an investigator for Sen. Carl Levin (D-MI) and for the Senate Permanent Subcommittee on Investigations. Elise handled investigations, hearings, and legislation on matters involving money laundering, offshore tax abuse, corruption, shell companies, and corporate misconduct. She is also the author of the book, Financial Exposure: Carl Levin's Senate Investigations into Finance and Tax Abuse (Palgrave Macmillan, 2018). So who better to have on the show to discuss the topic, “Why is congressional oversight important, and how can it be done well?” 

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be, and that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington, D.C.

Welcome to the program.

Elise Bean:

Thank you for inviting me, Kevin.

Kevin Kosar:

All right, let's begin with something very fundamental. What is Congressional oversight, and who in Congress can do it?

Elise Bean:

Well, Congressional oversight is when members of Congress, on a committee or individually, ask questions and try to find out: What are the facts? Is a program working? Is there really an abuse? If you want good government, you need good oversight because things change over time and what worked at one time doesn't work at another. That's what Congressional oversight is.

Kevin Kosar:

Yeah, we should dig into that a little bit. I think often Americans don't like to see politicians fighting amongst themselves, yet the legislative branch, last time I checked the Constitution, says that Congress makes the laws, Congress decides where the money is to be spent, but they're not the ones who actually do the execution of the law. They're not the ones actually spending the money. So does that seem to imply some sort of constitutional obligation to engage in oversight?

Elise Bean:

So the Supreme Court has said that that's exactly true, that if Congress can't do what it's supposed to do under the Constitution, unless it has some facts… I mean, wouldn't it make sense—if you're going to change your program or decide where money's going—that you have informed decision-making based on the facts? In fact, there's a 1946 law that requires all Congressional committees to do oversight within their areas of jurisdiction, and that's because they want you to find out what the facts are before you start to pass laws, give out money, and approve nominations.

Kevin Kosar:

Right. And as you hinted at earlier, when Congress says, "Hey, here's a new program we authorized and here's some new money for it, go out and do well, executive branch," sometimes the executive branch doesn't follow Congressional intent. Sometimes a program may not work as it was hoped. So Congressional oversight, we shouldn't just view it as kind of a response to some bad thing reported in the newspaper where Congress has to react, right? Rather, it sounds like it's something that they should be kind of engaged in as a matter of course.

Elise Bean:

Well, there are two kinds of oversight. One is what you were just talking about, routine oversight, where you look at the laws within your jurisdiction, see how they're working—and God knows a lot of times they don't work well—and what can you do to improve them. Other times there's a scandal, there's an earthquake, there's a hurricane, and Congress reacts to that scandal or to that event, tries to find out what's happening, and—maybe—how Congress can help.

Kevin Kosar:

Yeah, I mean, it seems inherent to the concept of representative and responsible government that you've got to have that oversight component there. Otherwise, you get money spent on things that don’t work, and the tap will never be turned off and taxpayers will be aggravated, to say nothing of scandals not being addressed and bad behavior being punished—or at least curbed so it doesn't repeat.

Now, some listeners of this podcast, when they hear the words Congressional oversight, they might flinch, in part because there's a tendency amongst the media to show oversight happening in the form of a hearing with a member of the dais whose face is getting red and they're getting all worked up—it's a political conflict, often a left and right conflict. That stuff happens, but that is certainly not the whole of Congressional oversight. There's bad oversight. There's good oversight. What does good oversight site look like?

Elise Bean:

Well, to me it's when there's a good-faith effort from both parties to try to find the facts. It's a complicated world out there and getting consensus on the facts is sometimes really hard. But when you do it, it creates a foundation for change. And when you think about it, Congressional oversight is all about affecting change. We want to improve laws. We want to address abuses. It's about fixing problems. But Congress isn't the executive branch. They can't prosecute anyone. They can't throw them in jail or fine them. It's all about policy changes. And we're talking about policy changes, good oversight—to me—involves people who have really fundamentally different worldviews. That way, they challenge each other. They look at the facts differently. They look at more facts, and the end result is something that is more thoughtful, more thorough, and certainly more credible if you have both parties involved.

Kevin Kosar:

Yeah, and that brings up the question of oversight and what it looks like. Again, it's forgivable that folks might think, oh, oversight, it's hearings. It's the guys on the dais asking the questions, the witnesses at the table, and that's oversight. But that's just part of a much bigger process. What does that overall process look like? What are the steps of that process?

Elise Bean:

You're absolutely right, Kevin. The hearing is sort of at the end of the process. When you start it, it's first fact-finding. What happened? Get documents, do interviews, maybe go visit some sites, visit victims, and find out what happened to them. That's the fact-finding phase. The second phase is you write it up because if you don't write it up, nobody knows what you ever found out. So that's often a report or a memo or a letter writing up what you found. Then you have the hearing. If it's important enough, you have a public hearing. But then there's a fourth stage which is as important or more important than the rest, which is doing something about the problems that you uncovered. So it's a very long process, four stages. That can take a year. It can even take two years.

Kevin Kosar:

Yeah. Going back to the beginning of the oversight process, how do you pick what to oversee? When I think of Congressional committees and the sheer breadth of their jurisdiction, they often have multiple agencies, and every agency has tons of programs and et cetera, et cetera. Where to begin? How do you choose amongst all these competing priorities for oversight? How do committees do that?

Elise Bean:

Well, that's the most important issue of all because you can't do a lot in a year. I mean, the most you could do is maybe once a month, and then you don't have any time to really investigate. The really best investigations, you usually do two or three a year. And to pick those, what usually happens is the staff makes some suggestions to the chairman of the committee or to the ranking member of the committee, and they decide out of that selection what they're going to do. So you think about, what promises has that member of Congress made to their constituents? What are some of the biggest problems in the subject area they have? Has there been a scandal or has there been some event that really needs to be addressed? And you have to just make some pretty hard choices about what your priorities are.

Kevin Kosar:

I can see that. It would have to be a negotiation amongst a number of competing goods with different criteria thrown into the mix. You mentioned the first stage of once you pick something, getting the facts. And you can do that through interviews and requests for documents. How easy is that, whether it's reaching out to the executive branch or the private sector? In your experience, how responsive do they tend to be when you say, "We want these documents from this file or this person, or we're insisting these guys come over and talk to us, not in a hearing, but just talk to us as staff." How tough is that?

Elise Bean:

It's not easy. I'll just tell you that. It's a very difficult process because you're...]]>The topic of this episode is, “Why is congressional oversight important, and how can it be done well?”

To help us tackle this subject we have Elise Bean. She is the Director of the Washington Office of Wayne State University’s Levin Center. Elise spent 30 years in Congress working as an investigator for Sen. Carl Levin (D-MI) and for the Senate Permanent Subcommittee on Investigations. Elise handled investigations, hearings, and legislation on matters involving money laundering, offshore tax abuse, corruption, shell companies, and corporate misconduct. She is also the author of the book, Financial Exposure: Carl Levin's Senate Investigations into Finance and Tax Abuse (Palgrave Macmillan, 2018). So who better to have on the show to discuss the topic, “Why is congressional oversight important, and how can it be done well?” 

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be, and that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington, D.C.

Welcome to the program.

Elise Bean:

Thank you for inviting me, Kevin.

Kevin Kosar:

All right, let's begin with something very fundamental. What is Congressional oversight, and who in Congress can do it?

Elise Bean:

Well, Congressional oversight is when members of Congress, on a committee or individually, ask questions and try to find out: What are the facts? Is a program working? Is there really an abuse? If you want good government, you need good oversight because things change over time and what worked at one time doesn't work at another. That's what Congressional oversight is.

Kevin Kosar:

Yeah, we should dig into that a little bit. I think often Americans don't like to see politicians fighting amongst themselves, yet the legislative branch, last time I checked the Constitution, says that Congress makes the laws, Congress decides where the money is to be spent, but they're not the ones who actually do the execution of the law. They're not the ones actually spending the money. So does that seem to imply some sort of constitutional obligation to engage in oversight?

Elise Bean:

So the Supreme Court has said that that's exactly true, that if Congress can't do what it's supposed to do under the Constitution, unless it has some facts… I mean, wouldn't it make sense—if you're going to change your program or decide where money's going—that you have informed decision-making based on the facts? In fact, there's a 1946 law that requires all Congressional committees to do oversight within their areas of jurisdiction, and that's because they want you to find out what the facts are before you start to pass laws, give out money, and approve nominations.

Kevin Kosar:

Right. And as you hinted at earlier, when Congress says, "Hey, here's a new program we authorized and here's some new money for it, go out and do well, executive branch," sometimes the executive branch doesn't follow Congressional intent. Sometimes a program may not work as it was hoped. So Congressional oversight, we shouldn't just view it as kind of a response to some bad thing reported in the newspaper where Congress has to react, right? Rather, it sounds like it's something that they should be kind of engaged in as a matter of course.

Elise Bean:

Well, there are two kinds of oversight. One is what you were just talking about, routine oversight, where you look at the laws within your jurisdiction, see how they're working—and God knows a lot of times they don't work well—and what can you do to improve them. Other times there's a scandal, there's an earthquake, there's a hurricane, and Congress reacts to that scandal or to that event, tries to find out what's happening, and—maybe—how Congress can help.

Kevin Kosar:

Yeah, I mean, it seems inherent to the concept of representative and responsible government that you've got to have that oversight component there. Otherwise, you get money spent on things that don’t work, and the tap will never be turned off and taxpayers will be aggravated, to say nothing of scandals not being addressed and bad behavior being punished—or at least curbed so it doesn't repeat.

Now, some listeners of this podcast, when they hear the words Congressional oversight, they might flinch, in part because there's a tendency amongst the media to show oversight happening in the form of a hearing with a member of the dais whose face is getting red and they're getting all worked up—it's a political conflict, often a left and right conflict. That stuff happens, but that is certainly not the whole of Congressional oversight. There's bad oversight. There's good oversight. What does good oversight site look like?

Elise Bean:

Well, to me it's when there's a good-faith effort from both parties to try to find the facts. It's a complicated world out there and getting consensus on the facts is sometimes really hard. But when you do it, it creates a foundation for change. And when you think about it, Congressional oversight is all about affecting change. We want to improve laws. We want to address abuses. It's about fixing problems. But Congress isn't the executive branch. They can't prosecute anyone. They can't throw them in jail or fine them. It's all about policy changes. And we're talking about policy changes, good oversight—to me—involves people who have really fundamentally different worldviews. That way, they challenge each other. They look at the facts differently. They look at more facts, and the end result is something that is more thoughtful, more thorough, and certainly more credible if you have both parties involved.

Kevin Kosar:

Yeah, and that brings up the question of oversight and what it looks like. Again, it's forgivable that folks might think, oh, oversight, it's hearings. It's the guys on the dais asking the questions, the witnesses at the table, and that's oversight. But that's just part of a much bigger process. What does that overall process look like? What are the steps of that process?

Elise Bean:

You're absolutely right, Kevin. The hearing is sort of at the end of the process. When you start it, it's first fact-finding. What happened? Get documents, do interviews, maybe go visit some sites, visit victims, and find out what happened to them. That's the fact-finding phase. The second phase is you write it up because if you don't write it up, nobody knows what you ever found out. So that's often a report or a memo or a letter writing up what you found. Then you have the hearing. If it's important enough, you have a public hearing. But then there's a fourth stage which is as important or more important than the rest, which is doing something about the problems that you uncovered. So it's a very long process, four stages. That can take a year. It can even take two years.

Kevin Kosar:

Yeah. Going back to the beginning of the oversight process, how do you pick what to oversee? When I think of Congressional committees and the sheer breadth of their jurisdiction, they often have multiple agencies, and every agency has tons of programs and et cetera, et cetera. Where to begin? How do you choose amongst all these competing priorities for oversight? How do committees do that?

Elise Bean:

Well, that's the most important issue of all because you can't do a lot in a year. I mean, the most you could do is maybe once a month, and then you don't have any time to really investigate. The really best investigations, you usually do two or three a year. And to pick those, what usually happens is the staff makes some suggestions to the chairman of the committee or to the ranking member of the committee, and they decide out of that selection what they're going to do. So you think about, what promises has that member of Congress made to their constituents? What are some of the biggest problems in the subject area they have? Has there been a scandal or has there been some event that really needs to be addressed? And you have to just make some pretty hard choices about what your priorities are.

Kevin Kosar:

I can see that. It would have to be a negotiation amongst a number of competing goods with different criteria thrown into the mix. You mentioned the first stage of once you pick something, getting the facts. And you can do that through interviews and requests for documents. How easy is that, whether it's reaching out to the executive branch or the private sector? In your experience, how responsive do they tend to be when you say, "We want these documents from this file or this person, or we're insisting these guys come over and talk to us, not in a hearing, but just talk to us as staff." How tough is that?

Elise Bean:

It's not easy. I'll just tell you that. It's a very difficult process because you're investigating people quite often that don't want to disclose what they've been up to, and you have to try to approach it from a lot of different ways. You might talk to the victims, you might talk to their competitors, you might talk to law enforcement. Maybe somebody litigated against them, and you can find some files that way. A lot of people resist, and we just have to look at President Trump as probably an extreme example of saying, "I'm going to fight every subpoena. I'm not going to respond to any request for information." Most people don't go that far. Most people do cooperate with Congress because they understand they have an obligation to do so by law and that it's good for all of us for government to work better. But getting documents, getting interviews, it's a tough process.

Kevin Kosar:

I have to ask, I mean, especially with some of the big investigations you were involved in, the ones that were very long, very thorough, how do you manage all this information coming in? And that duty, I presume, falls almost entirely—if not entirely—upon the Congressional committee's staff. The paper, the recordings, the interviews you do—all this is data. How do you manage all that stuff?

Elise Bean:

Well, one thing you do is you get computers. I remember we had one bank that we were investigating. This was Goldman Sachs during the financial crisis. They actually gave us tens of millions of documents, and we actually had to get hard drives and set up an entire computer system just to take in all those documents. We called it “the ocean.” And every day for the next three months, we went swimming in “the ocean.” We had search terms, we had various people we wanted to look at, and we just went through those documents nonstop for three months. After that, we then did three months of interviews because once you identify the documents you want, you think you know what happened, but you don't know what happened. And you have to talk to people who are directly involved, and you just have to take it step by step. To be honest, it isn't rocket science. It's more persistence and just doing the job that needs to be done.

Kevin Kosar:

Yes, I have heard that there is a tactic by those who are being investigated, which is kind of the opposite of stonewalling. Instead, they'll just—

Elise Bean:

Right. Flood the zone.

Kevin Kosar:

Flood the zone with documents and materials. And when I think about the size of some Congressional offices, if they're sending them over in paper format, I could imagine that could be a real challenge.

Elise Bean:

Nobody sends in paper anymore. We used to have paper. I remember when we were investigating Enron, we had 800 boxes of documents, and we had to find rooms just to store them. And then our staff would get out with little dollies, put the box on the dolly, take it back to the office, and go through it. But these days it's almost all online, electronic documents.

Kevin Kosar:

All digital, that no doubt creates its own challenge.

You referenced the term “subpoena,” which I'm sure many if not all of the program's listeners have heard before, and maybe they even know that it's Latin for “under penalty.” Is the subpoena the real big tool for ultimately forcing compliance, whether it's agencies or private sector firms, to Congressional committees' inquiries, or is it just one amongst many tools?

Elise Bean:

It's a very important tool. That's because a lot of times in investigations you want to follow the money. That's the key. To follow the money you need to get bank documents. To get bank documents, they won't give them to you unless you give them a subpoena. But if you give them a subpoena, they'll turn over all of those documents you need to follow the money. To get an interview, you can try to do subpoenas. Sometimes people give you a hard time, you have to go to court. Then it all slows down. So subpoenas are important, but they're far from the only tool.

Kevin Kosar:

What other tools are there? I mean, I would imagine that if somebody was in trouble that maybe they would think, "Huh, I don't really want to talk about this, but maybe the guy who was really doing bad stuff, I can put him under the bus. So that gives me incentive to go in there and talk and have my say, and maybe they'll show me some mercy." But you tell me. What other tools have you got to get what you need?

Elise Bean:

Well, a lot of regulated entities like banks, securities firms, and financial firms, don't want to be seen as resisting Congress. They want to be seen as cooperative. And I think there is almost no case where a financial firm actually took Congress to court and tried to get out of a subpoena. It happens very, very, very rarely. So we had one case where an accounting firm, KPMG was really not turning over any documents, and somebody told the press. It was not us. We think it was somebody within KPMG. We didn't want people to know when they were cooperating or not cooperating. That's not a good message to give out. But somebody went to the press and disclosed that they had not been cooperating with Congress. There were a bunch of articles written about it. And then we heard from people inside KPMG, they had a big meeting with all the managing partners and all the people who were partners in the accounting firm. They got together and said, "We do not like this look. It's not a good look for us." And the very next day they started turning over documents to us.

Kevin Kosar:

Going public and damage to reputation and embarrassment and besmirchment of the name. Interesting, interesting. That makes perfect sense, especially for a private sector firm and one where it might be privately held.

Elise Bean:

And that have regulators. Their regulators don't want to hear that they're not cooperating either.

Kevin Kosar:

Ah, the regulators. Yep. Is there a possibility of bringing pressure to bear through appropriators? Do people who are investigating also happen to have seats on the Appropriations Committee and might be able to use the power of the purse?

Elise Bean:

That's true for federal agencies. They do have appropriations, and that is another tool that you can use. But the appropriations process is very strung out. It's very controversial. We never used that tool. We found it was just too difficult to try to go after somebody on an appropriations basis. And a lot of times because an agency isn't doing well or has problems, if you cut off their money, they just do worse. So that's a theoretical way that you can go about it, but it's not actually used very much, in my experience. But they might want something else. They might want cooperation on a program or something else they need, and you can certainly help them with it or hurt them getting whatever it is they want. So that's another tool.

Kevin Kosar:

We've talked a lot about how and why oversight should happen and what good oversight looks like. So I wonder if—for my closing question—you'd be game for drawing upon one oversight effort you were involved in during your lengthy career that really kind of illustrates how you do it, from snout to tail. How do you do good oversight?

Elise Bean:

Well, we did a lot of really fun things. But let me just choose one that had to do with offshore bank accounts. And this one started because we had two informants. They didn't know each other. But they came into the office about four months apart and told us about banks that had been opening up offshore bank accounts for US clients and hiding the money from the IRS. We ended up having a hearing about both banks. We got names from them of Americans. We looked into what the Americans were doing. We got documents and we had a hearing. At the hearing, one of the banks was UBS. They sent somebody from Switzerland, and he began his testimony by saying, "We want to apologize for our past acts, and we're never going to do it again." We had no idea they were going to say that. We were quite surprised. I think it wasn't really because of our investigation, but because they were also being investigated by the Department of Justice. Soon after the hearing, they had a deferred prosecution agreement. But regardless, they announced the fact, they admitted all of their wrongdoing at our hearing.

Had a very big impact on the offshore world because this was a very big, powerful Swiss bank, and it was sort of a big crack in Swiss secrecy. As a result of that, the House passed some legislation that applied to non-US banks, and essentially it said, non-US bank, if you open up an account for US person and you don't tell us, we're going to impose an excise tax on your earnings in the United States. And since most foreign financial institutions had either treasuries or bonds or stocks here in the US, it was a very credible threat. Somebody...]]>b4577393-66d1-4d6c-ad22-672d13594e42Mon, 01 May 2023 06:00:00 -050022:02falsefull3434What Are the Job Descriptions of Representatives and Senators? (with Casey Burgat)The topic of this episode is: “What are the job descriptions of representatives and Senators?”

To answer that question, we have Dr. Casey Burgat. He's the director of the Legislative Affairs program at the Graduate School of Political Management at George Washington University. Dr. Burgat also has had stints at the Congressional Research Service, and he worked with me back when I was at the R Street Institute. Recently, he and Professor Charlie Hunt authored the book, Congress Explained: Representation and Lawmaking in the First Branch. Casey has been studying Congress and how it operates for years, which makes him a great person to ask the question, what are the job descriptions of representatives and Senators?

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be, and that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington, DC.

Dr. Casey Burgat, welcome to the program.

Casey Burgat:

Thanks for having me.

Kevin Kosar:

It's not unusual for Americans to grumble about Congress and to complain that these elected officials are not doing their jobs. But last I checked, there're no official job descriptions for the positions of representative and Senator. So in thinking about what these guys are supposed to be doing, I think we should probably start with the US Constitution. It certainly has some clues.

Casey Burgat:

Yes. Always, always start with the Constitution. It takes us back to the Founding. It sets the framework for how we're supposed to think about a lot of these institutional questions. This is one of them.

The Constitution does provide at least some clues, but definitely not as many as we assume are in there—especially in regards to the actual duties of Senators and representatives. It does give eligibility requirements of who can serve: you have to be 25 years old to be in the House, 30 in the Senate, seven years a citizen, etc. But after that, it gets surprisingly and oftentimes frustratingly sparse in terms of what individuals are supposed to do once they're elected. We have to look more broadly and deduce our expectations of job descriptions.

We can take some hints about what the individual members are supposed to do based on what the Constitution says that Congress as an institution—and the individual chambers—are tasked with. So Congress-wide, all legislative powers are granted to Congress. It's right there at the top—Article I, Section 1—no debate about it: Congress is the legislative branch. Then, they itemized what other powers Congress is supposed to have: to declare war, coin money, and—Kevin, I know this is for you—establish post offices, etc. We know that they're supposed to do that. Then each of the chambers has its separate roles: the House deals with revenue legislation, impeachment, etc. The Senate has advice and consent on treaties and nominations, and exclusively conducts the impeachment trials that the House sends them. Because Congress and the individual chambers are constitutionally tasked with these types of duties, if they don't do them, no one else will—at least in theory; in practice, we know it's not always that simple.

So given that the Constitution gives them these duties—both as an institution and as individual chambers—we can at least somewhat deduce that they are part of their constitutional job descriptions. But that's about where the Constitution runs out of the details on exactly what these 535 powerful members are supposed to do every single day. In fact, the vagueness of the Constitution is intentional. The Framers explicitly punt on a lot of these specifics that we often assume they've detailed for the individual members and Congress as an institution.

For example, the Constitution says things like “each House may determine the rules of its proceedings,” so it's left up to the members to decide how to operate and organize. This means they have to decide things like what—if any—committees to have, how to elect leaders (if they will have leaders), and how to process its business through procedures, especially in regards to legislation. Despite us thinking that it's an unbending, unmovable, and slow-operating institution, Congress has changed these things over time to suit the wants and needs of its membership.

But getting back to your original question about the frustration, this ambiguity and letting Congress figure out the details of the job on its own and changing things as they see fit has absolutely contributed to the public’s frustration with Congress. It's not like throwing a job posting up on Indeed of “Senator” and “representative.” It's up to all of us to decide exactly what these powerful people should be doing with their powers and their hours. And when we don't agree, we inevitably get frustration because you can't be everything to everyone at the same time. This is nothing new and has been a constant challenge for members since the beginning.

Kevin Kosar:

Americans also tend to have conflicting feelings about representatives and Senators. On the one hand, they'll say, "You guys just need to get things done." On the other hand they'll say, "Why aren't you deliberating more? Why aren't you bargaining?" And then on another hand, they'll say, "You need to stick to your principles and quit doing all that compromising and horse-trading." The very nature of the body of Congress itself—that it pulls these people from all over the place with different interests, and throws them into a big soup bowl together—seems to create its own theoretical problems with the expectations we should have for members.

Casey Burgat:

Absolutely. We are full of contradictions and it really helps to admit it. Then we can get past the lazy answer of what they're supposed to do—the bumper sticker version of all this stuff—and have conversations about what Congress is supposed to do and what's possible given all those contradictions baked right into the system.

Every few months we'll see a survey of Americans saying the vast majority of us—90% of us—say we want Congress to get something done, find common ground, compromise on things, etc. That's the lazy version. When we get down to the individual incentives of who these people represent, the thing you might want to compromise on is the thing that I deem as a principle that is uncompromisable. And in fact, the minute that my representative compromises on an issue like that, I'm looking for someone else to take the job.

We see this baked into campaign platforms where candidates will say this explicitly. "Send me there to stop them. Send me there to stop President Trump or President Biden.” Then this message is spun as standing up for principles. This just gets to the conflict that we've had since the beginning. We take all of these constituencies—all of these collective action problems—elect some people to be our voice, and say “Good luck.” Then we blame them when we don't feel represented on the one thing that really matters to us. It is just an incredibly hard job that leads to unrealistic expectations, which—in turn—lead to frustration that is easy to capitalize on. It's an impossible job, and I'm sympathetic to the members who have to navigate this every single day.

Kevin Kosar:

You just mentioned something that's important, which is that we have Senators whose job it is to represent whole states, whereas you have representatives who are supposed to represent districts. At the same time, they both come to Washington, DC and they're supposed to address matters of national concern—not merely local or parochial—which is another tension within there.

Let's set that aside and go to another thing that pulls at us when we think about the role of representative and Senator. Your book mentions these classic terms from political science—viewing the job of the legislator as being a The topic of this episode is: “What are the job descriptions of representatives and Senators?”

To answer that question, we have Dr. Casey Burgat. He's the director of the Legislative Affairs program at the Graduate School of Political Management at George Washington University. Dr. Burgat also has had stints at the Congressional Research Service, and he worked with me back when I was at the R Street Institute. Recently, he and Professor Charlie Hunt authored the book, Congress Explained: Representation and Lawmaking in the First Branch. Casey has been studying Congress and how it operates for years, which makes him a great person to ask the question, what are the job descriptions of representatives and Senators?

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be, and that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington, DC.

Dr. Casey Burgat, welcome to the program.

Casey Burgat:

Thanks for having me.

Kevin Kosar:

It's not unusual for Americans to grumble about Congress and to complain that these elected officials are not doing their jobs. But last I checked, there're no official job descriptions for the positions of representative and Senator. So in thinking about what these guys are supposed to be doing, I think we should probably start with the US Constitution. It certainly has some clues.

Casey Burgat:

Yes. Always, always start with the Constitution. It takes us back to the Founding. It sets the framework for how we're supposed to think about a lot of these institutional questions. This is one of them.

The Constitution does provide at least some clues, but definitely not as many as we assume are in there—especially in regards to the actual duties of Senators and representatives. It does give eligibility requirements of who can serve: you have to be 25 years old to be in the House, 30 in the Senate, seven years a citizen, etc. But after that, it gets surprisingly and oftentimes frustratingly sparse in terms of what individuals are supposed to do once they're elected. We have to look more broadly and deduce our expectations of job descriptions.

We can take some hints about what the individual members are supposed to do based on what the Constitution says that Congress as an institution—and the individual chambers—are tasked with. So Congress-wide, all legislative powers are granted to Congress. It's right there at the top—Article I, Section 1—no debate about it: Congress is the legislative branch. Then, they itemized what other powers Congress is supposed to have: to declare war, coin money, and—Kevin, I know this is for you—establish post offices, etc. We know that they're supposed to do that. Then each of the chambers has its separate roles: the House deals with revenue legislation, impeachment, etc. The Senate has advice and consent on treaties and nominations, and exclusively conducts the impeachment trials that the House sends them. Because Congress and the individual chambers are constitutionally tasked with these types of duties, if they don't do them, no one else will—at least in theory; in practice, we know it's not always that simple.

So given that the Constitution gives them these duties—both as an institution and as individual chambers—we can at least somewhat deduce that they are part of their constitutional job descriptions. But that's about where the Constitution runs out of the details on exactly what these 535 powerful members are supposed to do every single day. In fact, the vagueness of the Constitution is intentional. The Framers explicitly punt on a lot of these specifics that we often assume they've detailed for the individual members and Congress as an institution.

For example, the Constitution says things like “each House may determine the rules of its proceedings,” so it's left up to the members to decide how to operate and organize. This means they have to decide things like what—if any—committees to have, how to elect leaders (if they will have leaders), and how to process its business through procedures, especially in regards to legislation. Despite us thinking that it's an unbending, unmovable, and slow-operating institution, Congress has changed these things over time to suit the wants and needs of its membership.

But getting back to your original question about the frustration, this ambiguity and letting Congress figure out the details of the job on its own and changing things as they see fit has absolutely contributed to the public’s frustration with Congress. It's not like throwing a job posting up on Indeed of “Senator” and “representative.” It's up to all of us to decide exactly what these powerful people should be doing with their powers and their hours. And when we don't agree, we inevitably get frustration because you can't be everything to everyone at the same time. This is nothing new and has been a constant challenge for members since the beginning.

Kevin Kosar:

Americans also tend to have conflicting feelings about representatives and Senators. On the one hand, they'll say, "You guys just need to get things done." On the other hand they'll say, "Why aren't you deliberating more? Why aren't you bargaining?" And then on another hand, they'll say, "You need to stick to your principles and quit doing all that compromising and horse-trading." The very nature of the body of Congress itself—that it pulls these people from all over the place with different interests, and throws them into a big soup bowl together—seems to create its own theoretical problems with the expectations we should have for members.

Casey Burgat:

Absolutely. We are full of contradictions and it really helps to admit it. Then we can get past the lazy answer of what they're supposed to do—the bumper sticker version of all this stuff—and have conversations about what Congress is supposed to do and what's possible given all those contradictions baked right into the system.

Every few months we'll see a survey of Americans saying the vast majority of us—90% of us—say we want Congress to get something done, find common ground, compromise on things, etc. That's the lazy version. When we get down to the individual incentives of who these people represent, the thing you might want to compromise on is the thing that I deem as a principle that is uncompromisable. And in fact, the minute that my representative compromises on an issue like that, I'm looking for someone else to take the job.

We see this baked into campaign platforms where candidates will say this explicitly. "Send me there to stop them. Send me there to stop President Trump or President Biden.” Then this message is spun as standing up for principles. This just gets to the conflict that we've had since the beginning. We take all of these constituencies—all of these collective action problems—elect some people to be our voice, and say “Good luck.” Then we blame them when we don't feel represented on the one thing that really matters to us. It is just an incredibly hard job that leads to unrealistic expectations, which—in turn—lead to frustration that is easy to capitalize on. It's an impossible job, and I'm sympathetic to the members who have to navigate this every single day.

Kevin Kosar:

You just mentioned something that's important, which is that we have Senators whose job it is to represent whole states, whereas you have representatives who are supposed to represent districts. At the same time, they both come to Washington, DC and they're supposed to address matters of national concern—not merely local or parochial—which is another tension within there.

Let's set that aside and go to another thing that pulls at us when we think about the role of representative and Senator. Your book mentions these classic terms from political science—viewing the job of the legislator as being a delegate versus a trustee. What do you mean by these?

Casey Burgat:

Political scientists have helped us try to create a framework where we can quickly see the frustration with members of Congress as they attempt to impossibly satisfy everyone with every single issue at every single moment. The framing creates two classifications of members. 

The first is a delegate model, where members of Congress should do exactly what their constituents want them to do with no variation. As the representatives of the people, the individuals we gave our vote to should represent the will of their constituents. They're effectively given instructions on how to vote on issues, what to care about, what not to care about, and it's their job as the person in power to go do exactly those things. Then there's this other idea—the trustee model—where members are the professionals who see these issues every single day. They talk about them, they live them, and they have access to much more information. For a ton of issues, there's no possible way that we the people can have an informed viewpoint because we're out there living our lives. We have kids, mortgages, jobs—we don't want to pay attention to politics to this degree, so we elect trustees. We want them to act as our trusted representative and we trust that they will use their best judgment to make decisions on our behalf.

These both sound good, but they are not the same things. One is practical and one is theoretical. There're lots of things that—if we are being honest—we don't know enough about or even care enough about that lawmakers have to vote on. There’s no way that we can give them instructions on all of these issues in a way that is filterable and aggregated up. Even the smallest districts in the country are hundreds of thousands of people. There's not going to be unanimity in what they agree on, let alone unanimity on intensity of how much to care about this. It's the representative's job to represent the will of the people on all things, and try to make these impossible calculations of what to care about, by how much, and then consider the trade-offs that are inherently built into the policymaking process. Again, this leads to frustration with our members, where people think, ‘They're not representing us on this issue at this time in the best way, they're not fighting hard enough, they're compromising too much or not enough.’ It’s impossible to satisfy everyone all the time.

Kevin Kosar:

It occurs to me that one thing that was on display not terribly long ago—when the House was attempting to choose a new Speaker—was the issue of partisanship as implicitly being part of the job, according to some Americans. Namely, you heard people saying like, "The GOP is embarrassing itself. They all should vote unanimously in favor of Kevin McCarthy for Speaker. The fact that they are showing open dissent is a sign of dysfunction. They should do their jobs, pick McCarthy, and move on." Yet at the same time, we often hear the refrain of, "It's always Democrats versus Republicans, and they're always playing politics. Why can't they just focus on the issues instead of partisan identification?" This seems to be another contradiction in our ideas about what these guys are supposed to be doing.

Casey Burgat:

Understanding voter sentiment and what motivates voters to pay attention is a very hard thing to do. It’s hard to get voters to care enough to pay attention healthily and contribute to the conversation, rather than just add volume to it. It’s hard get them to show up to vote—to say nothing of volunteering for a campaign or showing up to local political efforts. It's really hard to get people to pay attention past the sexy cable news topics that're generated for you to pay attention and keep your eyeballs on certain content. Based on what we know about voters, the best way to get most people to pay attention is to appeal to their ideological interests—whether they have them or not—and to lean into their in-group versus out-group tendencies. And this is where it quickly gets very sociological—an “us versus them” mentality.

We send our members to be a part of “us.” If they're representing “the other” too much, then—all of a sudden—we need to look for someone more like “us.” That cycle warps these incentive structures when you think about what the institution is supposed to be and the type of products that it can reasonably produce. So there's definitely a partisan expectation for a lot of voters for their representatives to get to DC and represent those interests. Candidates are part of the problem, too, because they lean into this. They say, "I’m going there to represent your interests. I am explicitly not going to be a compromiser or give up on my principles." That has downstream effects on what's possible in an institution and what the institution decides to focus on. Instead of legislating when you can't reasonably get compromise—because that will cost you your job—you do what else you can do. You provide oversight, investigate, use your resources to paint the other side as corrupt or unpatriotic or incompetent as a means to get more of your leaning in-partisans effectuated and more of your partisans elected to office. There're these contributing factors that just create a doom loop of partisanship because we expect our members to be partisan. They told us they would be.

Kevin Kosar:

You used the word “sociological,” which brings up one more thing: voters frequently judge their representatives and Senators based upon these kind of group identifications. You will have a Senator who will style himself as the person who is speaking for the forgotten blue collar American. You will have legislators who come to Congress and say, "I was sent here by African Americans and I am a member of that community, so my job is to look after their interests first." It seems there's this whole pluralistic aspect that gets poured into this job description. 

Casey Burgat:

A hundred percent. Let’s limit the universe to three issues for the sake of this example. We have issue representation where we say, "Okay, there're these three issues. I need a lawmaker to represent what I believe on these three issues." That's one version of representation. There's also demographic representation, where it matters that the people elected to the halls of Congress look and talk like us, come from where we come from, experience our same experiences, etc. There's something to be gained by having demographic representation—independent of issue representation—whether it's gender or religion or race or ethnicity. It's really hard to have full faith in an institution that only looks like one segment of the population.

All of this stuff matters to create an institution that we can look at, see ourselves in, and know that if we're not paying attention on each and every issue, we at least know that the people who are can relate to us. So when you only have rich white dudes in there debating topics and issue areas that rich white dudes fundamentally can't know, it contributes to our frustration. Think of abortion rights or single-mom issues, public education, healthcare, daycare, etc.—it really matters independently of how you come down on these issues. You can be represented perfectly on all the issues, but if they don't look like you, think like you, act like you, talk like you, come from where you come from, you’ll still have questions about their effectiveness as a representative body.

Kevin Kosar:

And you mentioned that there's kind of issue representation versus group or identity representation, and those often overlap. We often see members of Congress who will be accused of not being truly Black, or, being told "You're a woman. The right to an abortion is a woman's healthcare right—a human right. But you as a woman are against it, so you are basically acting like an old white dude and you are not representative of we women." The issue content gets poured into the identity content too.

Casey Burgat:

It’s another sign that you can never be enough of whatever it is you're trying to be to satisfy everyone, which may be—depending on where they stand—too much for other people. For instance, you care too much about women's issues, or you care too much about the wealthy. For most people, this will break down pretty cleanly on ideological grounds. Even then, it gets complicated by these identity factors where, for some people, you're not enough, and for the other side of the aisle, you're too much. So there's no great line to be, and you're automatically screwed from the get-go.

Kevin Kosar:

And looping back to the matters of districts and states and the sort of interests...]]>9fd3ac1f-e7fe-4bb1-96c3-ba1da59b8a22Mon, 03 Apr 2023 06:00:00 -050029:02falsefull3333What Is the Congressional Debt Limit? (with Phil Wallach)The topic of this episode is: "What is the congressional debt limit?"

To answer that question we are once again speaking with Philip Wallach. He was the very first guest on this podcast, where we pondered why we need a Congress. Phil is a senior fellow at the American Enterprise Institute, and the author of the book, Why Congress, which was published by Oxford University Press in 2023. Phil also has written previously about the debt limit, which makes him the right person to ask: What is the congressional debt limit?

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it, but Congress is essential to our republic. It's a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be, and that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I'm your host, Kevin Kosar, and I'm a resident scholar at the American Enterprise Institute, a think tank in Washington, DC.

Phil, welcome back to the program.

Phil Wallach:

Thanks for having me back.

Kevin Kosar:

Let's start by getting clear on what we're talking about. There are deficits and there is debt. How do these two things differ?

Phil Wallach:

It's a stocks versus flow kind of thing. Each year, we have spending and revenue—in almost all years in recent memory, we have more spending than revenue. That creates a deficit. So the accumulation of all of the past deficits is the debt. So the debt is our total of all the spending we've done minus the revenue we've taken in, and it is now officially north of $30 trillion.

Kevin Kosar:

So when the Treasury needs to issue more debt, it's got to sell bonds—basically, these IOUs that say, "Please give us money that we can spend now, and we'll pay you back later." Is that essentially what's happening when we're taking on more debt?

Phil Wallach:

Yeah. A bond is a legally obligating instrument, and debt put out by the United States government is considered the lowest-risk kind of debt instrument in the world. So the government is not just saying, "If we feel in a good mood, we'll pay you back,” but, “we are legally obligated to pay you back with interest." That's very valuable to investors. And of course, United States bonds form the gold standard of collateral used not only in this country but around the world in the global financial system.

Kevin Kosar:

So this leads us to an important point, which is that an executive agency called the US Treasury that is issuing debt, but it doesn't do it simply at the behest of the President. The President can't say, "Well, let's just issue as much debt as we want on this day of the week or during this year." We have a law that limits the amount of debt; that is, our legislature has a role here.

We keep finding ourselves—with some frequency—in a situation where Congress will run these yearly deficits where they're spending more than the revenue coming in, and the debt grows and grows. Then, when we hit this legally mandated limit, Congress has to vote to pass a new law so that the limit is set higher so that more debt can be issued.

So let's just turn back the clock. This practice of setting a debt limit by law: why do we have it, and when did Congress first start doing it?

Phil Wallach:

Okay, so go back to the Constitution. Article I, Section 8 lists Congress's powers and pretty clearly gives the power of the purse to Congress. So Congress is responsible for making decisions about spending and taxation, and it's also, therefore, responsible for making decisions about financing deficits.  

Through the 19th and early 20th centuries, whenever the Treasury wanted to sell debt, Congress would specifically vote to approve every single bond issue. Now, it didn't really think very hard about the way it did that; the Treasury Secretary pretty much came over and said, "This is what we'd like," and Congress generally said, "Okay, that sounds all right with us." But it was approving every single bond issue. 

Now we come to World War I, and the federal government was spending money like never before, and Congress started to feel like this was too much of a burden for it to have to approve every single bond issue. So instead, in 1917, it put in place a ceiling, a limit. So up to this amount, Treasury can issue bonds as it sees necessary, and then once it hits that amount, it's going to have to come back to Congress. Congress will have to raise the ceiling, and the process involves the legislature again. But they put in place a dollar limit, and periodically raised that.

Somewhere around World War II, it took a modern statutory form. And ever since then, Congress has been raising the debt limit periodically, because we keep accumulating more debt such that if we didn't raise the limit, the Treasury would find itself unable to service the debt (i.e., unable to meet all of the obligations that Congress has incurred).

Kevin Kosar:

Is the United States unusual in having this debt ceiling policy where the legislature has to enact an increase to the debt periodically?

Phil Wallach:

Yes. It's not a normal thing for countries to have. In most countries, debt issuance seems to be thought of as a ministerial function of the Treasury Department, and not something that the legislature involves itself in so much. This is another aspect of America having an unusually powerful legislature that gets involved in more activities than legislatures in most countries do. But it is fairly clearly rooted in the Constitution that the US Congress has to be involved.

Now, it could just raise the limit really high. It could put in some sort of default rule that as long as we've passed spending laws, we're automatically authorizing the Treasury to sell enough debt such that we can spend all that money that we have voted in approval of. But we've never done that yet, so the debt limit has been the way we've coped with this congressional involvement for the last century.

Kevin Kosar:

It's worth pausing here to point out that the function of spending seems to have three big legislative steps. Congress passes a law to authorize spending on a program, an agency, etc. Then, Congress passes another law to appropriate the actual dollars that the executive agency can spend. But if the aggregate amount of those dollars exceeds the amount of revenues, you're going to have to take the next step to borrow. And in the olden days, as you referenced—a hundred years ago and earlier—Congress would just regularly pass these things ad hoc.  

But that became such a frequent thing, it probably made very little sense to spend that much time on the floor of both chambers pushing those bills through. So they just set a higher number and put it there. That still is a third step. So instead of doing this third step every few weeks or every few months, every year or so we have to go through this debt limit situation.

Phil Wallach:

And it's not always so newsworthy, because sometimes neither party is all that interested in fighting over it—Congress puts through a raise of the limit in a bipartisan manner, and life goes on as before. So it doesn't have to be a moment of drama.  

But ever since the standoff in 2011 especially, there's been a lot of attention to the debt limit, and a lot of sense that this is just a fight waiting to happen every time we come up against it.

Kevin Kosar:

We often hear the demand by some elected officials—presidents, members of Congress, etc.—that they want to "clean debt limit increase". What do they mean? And are these "clean increases" the norm?  

Phil Wallach:

So a clean increase would be if legislators introduced a bill that was very short and very simple, and all it did was raise the amount of money that the debt limit is set at. Or something they've resorted to in recent years is: instead of choosing an amount, a dollar amount, they suspend the limit until a certain date. And that's a different way of getting at the same thing of saying, “We're going to be able to issue the debt we need through this time period instead of up to this amount.” And so Congress has sometimes passed bills that are more or less “clean increases.” 

I wouldn't say that's the norm, though. Most of the time, whoever is not in the White House uses debt limit raises as a chance to hold the White House's feet to the fire a little bit on spending that they don't like, or on debt accumulation generically. If you go back to 2006, for example, the Democrats gave the George W. Bush administration a bit of a hard time on raising the debt limit then. It wasn't a big fight, in the end; the Republicans and Democrats got together and passed it in the end. But for example, Senators Joe Biden and Barack Obama, both voted against that increase as a]]>The topic of this episode is: "What is the congressional debt limit?"

To answer that question we are once again speaking with Philip Wallach. He was the very first guest on this podcast, where we pondered why we need a Congress. Phil is a senior fellow at the American Enterprise Institute, and the author of the book, Why Congress, which was published by Oxford University Press in 2023. Phil also has written previously about the debt limit, which makes him the right person to ask: What is the congressional debt limit?

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it, but Congress is essential to our republic. It's a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be, and that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I'm your host, Kevin Kosar, and I'm a resident scholar at the American Enterprise Institute, a think tank in Washington, DC.

Phil, welcome back to the program.

Phil Wallach:

Thanks for having me back.

Kevin Kosar:

Let's start by getting clear on what we're talking about. There are deficits and there is debt. How do these two things differ?

Phil Wallach:

It's a stocks versus flow kind of thing. Each year, we have spending and revenue—in almost all years in recent memory, we have more spending than revenue. That creates a deficit. So the accumulation of all of the past deficits is the debt. So the debt is our total of all the spending we've done minus the revenue we've taken in, and it is now officially north of $30 trillion.

Kevin Kosar:

So when the Treasury needs to issue more debt, it's got to sell bonds—basically, these IOUs that say, "Please give us money that we can spend now, and we'll pay you back later." Is that essentially what's happening when we're taking on more debt?

Phil Wallach:

Yeah. A bond is a legally obligating instrument, and debt put out by the United States government is considered the lowest-risk kind of debt instrument in the world. So the government is not just saying, "If we feel in a good mood, we'll pay you back,” but, “we are legally obligated to pay you back with interest." That's very valuable to investors. And of course, United States bonds form the gold standard of collateral used not only in this country but around the world in the global financial system.

Kevin Kosar:

So this leads us to an important point, which is that an executive agency called the US Treasury that is issuing debt, but it doesn't do it simply at the behest of the President. The President can't say, "Well, let's just issue as much debt as we want on this day of the week or during this year." We have a law that limits the amount of debt; that is, our legislature has a role here.

We keep finding ourselves—with some frequency—in a situation where Congress will run these yearly deficits where they're spending more than the revenue coming in, and the debt grows and grows. Then, when we hit this legally mandated limit, Congress has to vote to pass a new law so that the limit is set higher so that more debt can be issued.

So let's just turn back the clock. This practice of setting a debt limit by law: why do we have it, and when did Congress first start doing it?

Phil Wallach:

Okay, so go back to the Constitution. Article I, Section 8 lists Congress's powers and pretty clearly gives the power of the purse to Congress. So Congress is responsible for making decisions about spending and taxation, and it's also, therefore, responsible for making decisions about financing deficits.  

Through the 19th and early 20th centuries, whenever the Treasury wanted to sell debt, Congress would specifically vote to approve every single bond issue. Now, it didn't really think very hard about the way it did that; the Treasury Secretary pretty much came over and said, "This is what we'd like," and Congress generally said, "Okay, that sounds all right with us." But it was approving every single bond issue. 

Now we come to World War I, and the federal government was spending money like never before, and Congress started to feel like this was too much of a burden for it to have to approve every single bond issue. So instead, in 1917, it put in place a ceiling, a limit. So up to this amount, Treasury can issue bonds as it sees necessary, and then once it hits that amount, it's going to have to come back to Congress. Congress will have to raise the ceiling, and the process involves the legislature again. But they put in place a dollar limit, and periodically raised that.

Somewhere around World War II, it took a modern statutory form. And ever since then, Congress has been raising the debt limit periodically, because we keep accumulating more debt such that if we didn't raise the limit, the Treasury would find itself unable to service the debt (i.e., unable to meet all of the obligations that Congress has incurred).

Kevin Kosar:

Is the United States unusual in having this debt ceiling policy where the legislature has to enact an increase to the debt periodically?

Phil Wallach:

Yes. It's not a normal thing for countries to have. In most countries, debt issuance seems to be thought of as a ministerial function of the Treasury Department, and not something that the legislature involves itself in so much. This is another aspect of America having an unusually powerful legislature that gets involved in more activities than legislatures in most countries do. But it is fairly clearly rooted in the Constitution that the US Congress has to be involved.

Now, it could just raise the limit really high. It could put in some sort of default rule that as long as we've passed spending laws, we're automatically authorizing the Treasury to sell enough debt such that we can spend all that money that we have voted in approval of. But we've never done that yet, so the debt limit has been the way we've coped with this congressional involvement for the last century.

Kevin Kosar:

It's worth pausing here to point out that the function of spending seems to have three big legislative steps. Congress passes a law to authorize spending on a program, an agency, etc. Then, Congress passes another law to appropriate the actual dollars that the executive agency can spend. But if the aggregate amount of those dollars exceeds the amount of revenues, you're going to have to take the next step to borrow. And in the olden days, as you referenced—a hundred years ago and earlier—Congress would just regularly pass these things ad hoc.  

But that became such a frequent thing, it probably made very little sense to spend that much time on the floor of both chambers pushing those bills through. So they just set a higher number and put it there. That still is a third step. So instead of doing this third step every few weeks or every few months, every year or so we have to go through this debt limit situation.

Phil Wallach:

And it's not always so newsworthy, because sometimes neither party is all that interested in fighting over it—Congress puts through a raise of the limit in a bipartisan manner, and life goes on as before. So it doesn't have to be a moment of drama.  

But ever since the standoff in 2011 especially, there's been a lot of attention to the debt limit, and a lot of sense that this is just a fight waiting to happen every time we come up against it.

Kevin Kosar:

We often hear the demand by some elected officials—presidents, members of Congress, etc.—that they want to "clean debt limit increase". What do they mean? And are these "clean increases" the norm?  

Phil Wallach:

So a clean increase would be if legislators introduced a bill that was very short and very simple, and all it did was raise the amount of money that the debt limit is set at. Or something they've resorted to in recent years is: instead of choosing an amount, a dollar amount, they suspend the limit until a certain date. And that's a different way of getting at the same thing of saying, “We're going to be able to issue the debt we need through this time period instead of up to this amount.” And so Congress has sometimes passed bills that are more or less “clean increases.” 

I wouldn't say that's the norm, though. Most of the time, whoever is not in the White House uses debt limit raises as a chance to hold the White House's feet to the fire a little bit on spending that they don't like, or on debt accumulation generically. If you go back to 2006, for example, the Democrats gave the George W. Bush administration a bit of a hard time on raising the debt limit then. It wasn't a big fight, in the end; the Republicans and Democrats got together and passed it in the end. But for example, Senators Joe Biden and Barack Obama, both voted against that increase as a way of showing that they were unhappy about some of the spending that the Bush administration had put through.  

So historically, going back many decades, the party out of the White House has used it as a way of raising some protests. Some perennial fiscal hawks have used it as a chance to raise alarms about the growing debt in America, so usually, there's some kind of provision that needs to be attached to show, ‘we're concerned about the debt’ along with raising the debt limit. That's the norm, I'd say.

Kevin Kosar:

I think it's worth pulling back here for a sec and noting to listeners that when a bill is brought up for a vote in Congress, that bill is frequently comprised of multiple pieces of legislation that have been bargained out. They're put together as a package deal to build a majority. And other instances, a bill may be brought to the floor, but there's a shared understanding that other bills are also going to come hot on its heels, and they're going to pass. So they're not formally packaged together, but they're understood to be put together. And that's how you build the majority. So you can have a clean debt increase in theory, but you could also have another bill that's going to be coming in right behind it that is a product of bargaining with whoever is demanding a side deal of some sort.

Having said that, are these debt increase standoffs a bad thing? Is it bad for the legislators to bargain over this topic, seeing as debt and fiscal responsibility are important issues?

Phil Wallach:

It is a really strange way of trying to get control over our fiscal trajectory. It seems like the spending and revenue decisions that we make are the things that actually set the course of the debt. And then coming on the back end and arguing over whether we should raise the debt limit is kind of a strange way to say "that's how we should change the trajectory" because, in some sense, we all know that we have to raise the limit. We're not going to let the country default on its debt. And so it's a strange bargaining game where everyone knows that the outcome is preordained, at least in that aspect of it.

So the counterpoint, the reason why I would say a lot of fiscal conservatives say "We need to fight over the debt limit today and in the future" is that it's pretty much the only gut check we have in the system right now. We have the annual appropriations process, but that only gets at about a third of federal spending. A lot of federal spending is on autopilot at this point. Our budget process, which is supposed to force us to take stock of where we're going on an annual basis is—pretty much by all accounts—broken. It does not serve that sort of big-picture function, whatever else it may do. And so the moments when we bump up against the debt limit and we all know we have to raise it, they create the time when we could all get together and think about what's happening with the United States’ accumulation of debt, and what we need to do to change the path we're on.

Certainly, a lot of Republican legislators are very distressed about the fiscal path that we're on and want to do something about it. But again, it's a strange negotiation to have where, at the end of the day, everyone knows we have to raise the limit.

Kevin Kosar:

That's clear. Our current spending and revenue-raising practices are what are creating the deficits, and the compilation of deficits is what creates debt and brings up the debt limit as an issue. And so it seems sensible that we should just deal with that other problem.

But of course, the issue is we have this 50-plus-year-old Congressional Budget Act, about which everybody agrees that Congress is just not following the act. Reality and what the provisions of the laws say are just far apart. The incentive structure is all screwed up, so nobody's following it.  

But to replace it is a huge lift. You have to get a law through both chambers. It means a lot of people's oxes are going to be gored. You've got appropriators, they don't want to give up their power. You've got Congressional Budget Committees. There are just a lot of players that you'd have to get. So the debt limit, to some degree, is like a proxy for that. And it's easy because it's a straight vote. It’s a single piece of legislation and you can take a symbolic stand on either side of it that might align with party branding or something like that. Is this dynamic, in some way, similar to the whole periodic fights we have over shutting the government down?

Phil Wallach:

Well, I think you hit on it when you said this is an opportunity to make a symbolic statement. I think that's, in a sense, the problem with the way that we do things now, which is that we have these fights around this largely symbolic matter and we don't actually force ourselves to get to the substance in any searching way. I think it's so much easier to let things go on the way they are going than to figure out a way to reduce deficits and debt. It's just so much less resistance.

And we don't have an imminent fiscal crisis in the sense that we're not drowning in our interest payments right now. I think the inflation of recent years actually makes the problem a little less acute, but we don't have any incentive to buckle down and fix things. And these problems get worse year by year when we think about where we'll be in about a decade when we've run into some very big problems with funding Social Security and Medicare under the current arrangements. And we're going to have a whole lot more debt by then because—these days—we run these roughly trillion-dollar deficits every year. It's an ugly picture, and we need to find some way of getting at the substance of it. 

And the folks who are enthusiastic about debt ceiling fights think that the debt ceiling is the tool that we can use to get at that substance. I'm just a bit skeptical. I think the track record over the past few decades when people have zealously pursued some of these debt ceiling fights is not good. We haven't stopped accumulating debt. We haven't gotten to the substance in any really meaningful way. That's what worries me.

Kevin Kosar:

Should we just give up on these big battles around the debt limit and just either repeal the need to have one, or just set it at a gazillion dollars? Or is there something else we should do?

Phil Wallach:

Gazillion is not a real number, Kevin, and so that might be legally problematic.

I'm inclined to think that we should work hard to take the debt limit off the table, but—in the process of doing so—put in some other mechanism that really forces us to reckon with the debt and to debate the debt in a meaningful way on an annual basis. But it's not entirely clear what that mechanism would be, and revamping the whole budget process, as you alluded to earlier, is a really big lift.

But I think we need to squarely confront the fact that the current system is broken. The current system includes this debt ceiling element that really doesn't fix everything, causes real distractions, and of course causes this risk that maybe we might default on our debt, which would be really perverse. So to my mind, we need to push for some better way of handling our fiscal processes. We do need to recognize that things are broken now and that we're on a bad trajectory. Just having more debt ceiling fights doesn't really seem like a way of getting to a better place.

Kevin Kosar:

Philip Wallach—author of the book, Why Congress—thank you for explaining to us the Congressional debt limit.

Jeff Pickering:

Hello, this is Jeff Pickering, Director of Academic Programs here at AEI, and host of the Campus Exchange podcast. I want to take a moment to tell you about AEI's 2023 Summer Honors Program. This annual program is a unique, all-expenses-paid experience for undergraduates to study the pressing issues of our day with AEI scholars and other policy experts. This program will bring a couple hundred undergraduates from campuses across the nation and the world for weeklong seminars taught throughout the month of June.

Some of the courses we're offering this June will cover “The Changing Nature of Warfare,” taught by AEI's Kori Schake; “Polarization and Pluralism” with David French of The New York Times; and “The Foundations of Democratic Capitalism” with AEI's Michael Strain. In addition to time in the seminars, students will also have opportunities to connect and network with other students, young professionals, and other experts across the political and policy spectrum.

If you are a current college student or someone who may be interested, head on over to aei.org or Google "AEI Summer Honors" to learn more and apply. Applications are due March 15.

Kevin Kosar:

Thank you for listening to Understanding Congress, a podcast of the American Enterprise Institute. This program was produced by Jaehun Lee and hosted by Kevin Kosar. You can subscribe to Understanding Congress via Stitcher, iTunes, Google Podcast, and TuneIn. We hope you'll share this podcast with others and tell us what you think about it by posting your thoughts and questions on Twitter and tagging @AEI. Once again, thank you for listening, and have a great day.

My guest is Dr. Maya Kornberg. She is a political scientist in the Elections and Government Program at the Brennan Center. Dr. Kornberg leads the center’s work related to information and disinformation in politics, Congress, and money in politics. Maya also is the author of Inside Congressional Committees: Function and Dysfunction in the Legislative Process (Columbia University Press, 2023.) All of that makes her the perfect person to answer the question, “What do congressional committees do?”

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be, and that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington, D.C.

Dr. Kornberg, welcome to the podcast.

Maya Kornberg:

Thank you so much for having me. I’m excited to be here.

Kevin Kosar:

Since its earliest days—more than two centuries ago—each chamber of Congress has had committees and used them for lawmaking, oversight, etc. Why committees?

Maya Kornberg:

As you noted, committees have been essential institutions in Congress since its inception. One of the reasons for this is that Congress is a big organization with an enormous number of issues to handle. So committees act as sub-organizations that can help Congress perform specific duties. Congress delegates work through its committees, so they also serve as indicators of how Congress is apportioning responsibility and resources. And in terms of power within the chambers, committees help to decentralize power, and encourage and give space to more legislators from both parties to be active participants in the policymaking process.

Kevin Kosar:

You note in the book that committees have four core functions: deliberation, education, theater, and personal connection. What do you mean by these terms?

Maya Kornberg:

These are the core functions that legislative scholars have identified as key roles of committees in legislatures, generally.

First and foremost, scholars identify committees as a deliberative forum within Congress. Woodrow Wilson once wrote that “The House both deliberates and legislates in small sections. It delegates its legislative and deliberative functions to stand in committees.” And what does deliberation mean? As you and your co-authors touch on in Congress Overwhelmed, deliberation is really about weighing the different aspects of a question and reasoning through the different causes and consequences. This is a crucial part of any policy formulation, and something that committees handle in Congress.

Traditionally, committees are where research is brought in and technical learning takes place, and that’s what I mean by education. Congress is a body in which many lawmakers have to legislate on specialized topics that they don’t have any training in. Committees give them the space to learn—they are a place where lawmakers gather information and educate themselves about specific policy areas.  

Committees are also one of the major bipartisan institutions in an increasingly partisan Congress, so they form a space for members of Congress to cultivate personal relationships with each other and with the witnesses. Members from both parties come together on a regular basis in committees for hearings and other regular work. And this forms a space then for potential personal connection between members.  

In my book, I tell the story of a particularly notable friendship that came from a committee, and that is the friendship between longtime senator, Dick Lugar, whom I interviewed before he passed away in 2019, and then-senator, Barack Obama. Republican Senator Lugar told me that Barack Obama was frequently one of the only members left in the committee when Senator Lugar was chairing, and would sit there and ask questions and be engaged. Also as a result of their joint membership in the committee, they went on several trips together—what’s known as CODELs, or congressional delegations—and were really able to maintain a friendship and fruitful working relationship across party lines for many years after, that originated in their joint membership in the Senate Foreign Relations Committee. So that’s what I mean by personal connection.

Finally, committees can act as what Woodrow Wilson terms “the theater of debate upon legislation.” One of the staffers that I interviewed in the book explains that sometimes the purpose of a hearing is to give a public forum to discussions that largely happen behind closed doors. This public function of committees allows members to publicize issues. It’s really a public-facing function and it can help them to mobilize support for different policy issues that they might be working on.

So these four functions—deliberation, education, personal connection, and theater—are core universal functions of committees. And my book then explores under what conditions each of these functions might be most likely in Congress today.  

Kevin Kosar:

Since you’ve teed up the question nicely, are the committees of today still doing all four of these things: deliberating, education, theater, personal connection? Does it vary? Does the mix—the kind of cocktail of these four functions—change from committee to committee?

Maya Kornberg:

As I note in the book, there’re certain parameters that lead a hearing or a committee to be more likely to fulfill different functions. Today, after a series of developments over the past several decades, committees are—by and large—less autonomous, less specialized, and less deliberative than they once were as a result of decades of having staff cut and having their power taken away and usurped by party leadership.

Still, committees can serve these functions. I note in the book that, in particular, the educational platform of committees can be most likely—and this might seem counterintuitive—the further away you are from a vote or from talking about a specific piece of legislation. I spoke to members who explained that the closer you are to a vote, the more likely you are to descend into partisan tribal warfare.

But in terms of what I call agenda-setting and general education about topics—this is really important because these members of Congress still need to be legislating about all of these very specialized topics—committees can still serve this general education function. I tell the story in the book, for example, of the genetic engineering hearing in 2015, which was at the very beginning of genetic engineering science and development of that science in the United States. Members talked about this hearing as one in which—at the very beginning—this policy issue becoming something that they would need to regulate, fund, and legislate about. They were able to learn about this because it had not yet been colored by partisanship in the way that many issues are. 

I also note in the book that personal connection can still occur, but under specific circumstances. As we know, Congress is becoming increasingly partisan. Frequently, the only time that members have to connect with each other is within the rancorous halls of Congress because many of them don’t live in Washington; whereas before the mid-90s, they did and they had plenty of opportunities to form personal connections. One of the things I talk about in the book are opportunities like field hearings, like congressional delegation trips that committees facilitate that allow members to socialize with each other and form personal connections outside of Congress.

So again, these kinds of hearings and committee work might allow for more personal connection than we see in traditional scripted and partisan hearings within the halls of Congress. Similarly, the committee hearings that we see in Congress with all the cameras all teed up might actually be the place for more theater. But when they’re out on the road—with for example, the Agriculture Committee’s Farm Bill Listening Tour, listening to farmers—there might be more space for actual interaction and less theater.

So, again, in the book, I explore when each of these is most likely, arguing that they all take place in Congress, but we can learn from when they take place in order to think through what reforms can help facilitate more of these different functions in Congress...]]>The topic of this episode is, “What do congressional committees do?”

My guest is Dr. Maya Kornberg. She is a political scientist in the Elections and Government Program at the Brennan Center. Dr. Kornberg leads the center’s work related to information and disinformation in politics, Congress, and money in politics. Maya also is the author of Inside Congressional Committees: Function and Dysfunction in the Legislative Process (Columbia University Press, 2023.) All of that makes her the perfect person to answer the question, “What do congressional committees do?”

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be, and that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington, D.C.

Dr. Kornberg, welcome to the podcast.

Maya Kornberg:

Thank you so much for having me. I’m excited to be here.

Kevin Kosar:

Since its earliest days—more than two centuries ago—each chamber of Congress has had committees and used them for lawmaking, oversight, etc. Why committees?

Maya Kornberg:

As you noted, committees have been essential institutions in Congress since its inception. One of the reasons for this is that Congress is a big organization with an enormous number of issues to handle. So committees act as sub-organizations that can help Congress perform specific duties. Congress delegates work through its committees, so they also serve as indicators of how Congress is apportioning responsibility and resources. And in terms of power within the chambers, committees help to decentralize power, and encourage and give space to more legislators from both parties to be active participants in the policymaking process.

Kevin Kosar:

You note in the book that committees have four core functions: deliberation, education, theater, and personal connection. What do you mean by these terms?

Maya Kornberg:

These are the core functions that legislative scholars have identified as key roles of committees in legislatures, generally.

First and foremost, scholars identify committees as a deliberative forum within Congress. Woodrow Wilson once wrote that “The House both deliberates and legislates in small sections. It delegates its legislative and deliberative functions to stand in committees.” And what does deliberation mean? As you and your co-authors touch on in Congress Overwhelmed, deliberation is really about weighing the different aspects of a question and reasoning through the different causes and consequences. This is a crucial part of any policy formulation, and something that committees handle in Congress.

Traditionally, committees are where research is brought in and technical learning takes place, and that’s what I mean by education. Congress is a body in which many lawmakers have to legislate on specialized topics that they don’t have any training in. Committees give them the space to learn—they are a place where lawmakers gather information and educate themselves about specific policy areas.  

Committees are also one of the major bipartisan institutions in an increasingly partisan Congress, so they form a space for members of Congress to cultivate personal relationships with each other and with the witnesses. Members from both parties come together on a regular basis in committees for hearings and other regular work. And this forms a space then for potential personal connection between members.  

In my book, I tell the story of a particularly notable friendship that came from a committee, and that is the friendship between longtime senator, Dick Lugar, whom I interviewed before he passed away in 2019, and then-senator, Barack Obama. Republican Senator Lugar told me that Barack Obama was frequently one of the only members left in the committee when Senator Lugar was chairing, and would sit there and ask questions and be engaged. Also as a result of their joint membership in the committee, they went on several trips together—what’s known as CODELs, or congressional delegations—and were really able to maintain a friendship and fruitful working relationship across party lines for many years after, that originated in their joint membership in the Senate Foreign Relations Committee. So that’s what I mean by personal connection.

Finally, committees can act as what Woodrow Wilson terms “the theater of debate upon legislation.” One of the staffers that I interviewed in the book explains that sometimes the purpose of a hearing is to give a public forum to discussions that largely happen behind closed doors. This public function of committees allows members to publicize issues. It’s really a public-facing function and it can help them to mobilize support for different policy issues that they might be working on.

So these four functions—deliberation, education, personal connection, and theater—are core universal functions of committees. And my book then explores under what conditions each of these functions might be most likely in Congress today.  

Kevin Kosar:

Since you’ve teed up the question nicely, are the committees of today still doing all four of these things: deliberating, education, theater, personal connection? Does it vary? Does the mix—the kind of cocktail of these four functions—change from committee to committee?

Maya Kornberg:

As I note in the book, there’re certain parameters that lead a hearing or a committee to be more likely to fulfill different functions. Today, after a series of developments over the past several decades, committees are—by and large—less autonomous, less specialized, and less deliberative than they once were as a result of decades of having staff cut and having their power taken away and usurped by party leadership.

Still, committees can serve these functions. I note in the book that, in particular, the educational platform of committees can be most likely—and this might seem counterintuitive—the further away you are from a vote or from talking about a specific piece of legislation. I spoke to members who explained that the closer you are to a vote, the more likely you are to descend into partisan tribal warfare.

But in terms of what I call agenda-setting and general education about topics—this is really important because these members of Congress still need to be legislating about all of these very specialized topics—committees can still serve this general education function. I tell the story in the book, for example, of the genetic engineering hearing in 2015, which was at the very beginning of genetic engineering science and development of that science in the United States. Members talked about this hearing as one in which—at the very beginning—this policy issue becoming something that they would need to regulate, fund, and legislate about. They were able to learn about this because it had not yet been colored by partisanship in the way that many issues are. 

I also note in the book that personal connection can still occur, but under specific circumstances. As we know, Congress is becoming increasingly partisan. Frequently, the only time that members have to connect with each other is within the rancorous halls of Congress because many of them don’t live in Washington; whereas before the mid-90s, they did and they had plenty of opportunities to form personal connections. One of the things I talk about in the book are opportunities like field hearings, like congressional delegation trips that committees facilitate that allow members to socialize with each other and form personal connections outside of Congress.

So again, these kinds of hearings and committee work might allow for more personal connection than we see in traditional scripted and partisan hearings within the halls of Congress. Similarly, the committee hearings that we see in Congress with all the cameras all teed up might actually be the place for more theater. But when they’re out on the road—with for example, the Agriculture Committee’s Farm Bill Listening Tour, listening to farmers—there might be more space for actual interaction and less theater.

So, again, in the book, I explore when each of these is most likely, arguing that they all take place in Congress, but we can learn from when they take place in order to think through what reforms can help facilitate more of these different functions in Congress today.

Kevin Kosar:

Yes, and a point you make very clearly in the book is that hearings have different purposes. Sometimes, it is just exploring an issue that they’re digging in and the hearing is probably going to be rather drab. So that’s lots of experts coming in and presenting data on this, that, and the other. In other instances, the point is to call attention to something—to get the media’s attention, to say, “Hey, here’s a thing that everybody should be asking questions about,” and perhaps wagging fingers and shame. So what you get is going to depend on what the ultimate outcomes are.

Now, you mentioned personal connection, and this was a really fascinating part of the book. With personal connection comes trust. And ultimately, for legislature to work—to be able to build a majority, to be able to create a piece of legislation—there’s got to be some trust between individuals so that they can collaborate, create a shared work project, move it through the chamber, and deal with the resistance that’s inevitably going to come—whether it’s media criticism or criticism with their own party or the other party. You talked firsthand with people who work on committees. It seems to me that the personal connections are like the secret sauce for making it work. Did I get that right?

Maya Kornberg:

Yeah. I talk a lot in the book about the crucial importance of the relationship, specifically between committee leadership and between their respective staffs—the minority and the majority staff—in crafting hearings. In my interviews with staff and with members, it became very clear to me that there are the formal rules, but there’re also the informal norms that—in many cases—trump formal rules because of the importance of personal relationships. So when the minority and the majority staff have a good relationship—and when the topic of the hearing is perhaps more bipartisan—then there is space to even create joint witness lists and to think together about creating a witness panel that exposes the different aspects of an issue and the different voices that there are to hear from on an issue. On the other hand, in the absence of good personal relationships, the minority gets the minimal notice that the hearing is happening and their one witness—which the minority is always entitled to.

And I also show, by looking at what I call “balance scores,” that hearings in which the ranking member and the chair are closer to each other ideologically—I use DW-NOMINATE scores to look at that—might yield more balanced hearings. And I create this methodology for creating balanced scores in the book, which are a way of measuring how balanced a witness panel is (how many witnesses are speaking for or against a certain topic). So really, the chair and the ranking member—both their ideological positioning but also their relationship and the relationship between their staffs—can be critical in either creating a space where there will be a balanced witness panel with many different perspectives, or a witness panel in which there is really just one minority witness there to promote the messaging of the minority party, and the rest of the witness panel is there in order to promote the messaging of the majority party.

These are the hearings that we frequently think about when we think about Congress because that’s what we see on television, but that’s not all hearings. There are many hearings in which there are joint lists, there is a real space for deliberation, and reasoning through the many aspects of the issue, but that is more likely when there is a joint approach, a joint list. And relationships are really critical in order to be having those discussions and coming together as a committee to create a hearing, to create a witness panel, and to set up the building blocks for a real deliberative conversation that can happen in committees. That is more likely when the committee comes together in that way.

Another thing that I found really interesting was one of the committees that I spoke to—in which the minority and the majority had a good relationship—would approach the Congressional Research Service with a joint question before each hearing and ask for a joint report from the CRS that they could send to all the members and the staff to prime them with the same neutral information before the hearing. Things like that really set the tone for the hearing to come and create the space for real reasoning through the different aspects and real openness to alternatives.

Kevin Kosar:

Over the past century, the power of committees has risen and it’s fallen. Today, committees are not quite the powerhouses they were 50 years ago. In simplest terms, how is it that committees’ power can grow or shrink?  

Maya Kornberg:

That’s a really interesting question and I think that a number of factors shape the relative power of committees.

In legislatures, in general, parties and committees tend to act as competing organizing structures. Historically, as well as internationally, we see that the power of the two is inversely correlated. Committees tend to be weaker during periods where power is concentrated in parties and party leadership, and vice versa. And this is really the story that we’ve seen unfold over the last several decades in Congress. Party leaders and parties have usurped control and committees have lost power.

I’d highlight a few key events in that. And I think the story begins in the 1970s. It begins, of course, earlier on, but in terms of the loss of committee power the 1970s saw some key events. There was the Legislative Reorganization Act in 1970 that reduced the power of chairs, it increased the power of leadership in assigning chairs, and slashing committee staff. And these all hurt committee autonomy and committee power, and gave more power to the Speaker.  

Another key moment was in 1995. Newt Gingrich comes to power as Speaker and he doubles the number of votes of the party Speaker on the steering committee, increases the hold of party leadership on committee chairs, and he further cuts staff. So we’ve really seen a huge decline in the number of staff that Congress relies on. They have several thousand fewer staff than they did a few decades ago. And this loss of staff—who are really key to helping committees specialize—along with the increasing grip of the Speaker on chair selection are really emblematic of this trend. So you have a stronger Speaker in the House right now and you have weaker, less autonomous, less specialized committees.

We also see a similar trend in the Senate. The Senate in the first half of the 20th century was known as a decentralized chamber in which parties struggled to maintain control. But deliberation declined in the second half of the 20th century because senators were struggling with a lot of committee assignments and with a rising workload. And similar to the House, committees also lost staff relative to parties. So though the overall level of Senate staff has remained relatively similar, the number of staff working under the party, and I find this statistic really crucial in understanding the story, the number of staff working under party leadership increased by 263% between 1977 and 2016. So again, we see the power flowing from committees to party leadership.  

I think it’s interesting to end by noting that we are discussing this at a very interesting time in terms of this push and pull between party and party leadership and committees. We’re at a very unique moment with Speaker Kevin McCarthy coming to power. He’s a Speaker who faces the threat of the motion to vacate, and he leads—as we’ve all seen in the strife leading up to the Speaker vote—a divided party. Looking at this as a scholar of committees, I do wonder if this opens up some space for committees and committee leadership to reclaim some power because we see a weakening party leader and Speaker. And this might leave some space for another golden era for committees, but I guess we will see how that unfolds.

Kevin Kosar:

Before I close this off, I just wanted to get two quick things in. First, you may be surprised to hear that there are fewer committee staff in the House of Representatives today than there were 40 years ago. This is not a great formula, considering that government has got much more and larger responsibilities.

Second point is that we’ve seen a breakdown—particularly in the House of Representatives—of regular order. This is the sort of “Schoolhouse Rock” way of getting work done where a bill gets introduced and then it gets referred to committee, and then the committee decides what to do with it. And ultimately, it may amend it and rework it, but it gets reported out with some assumption that it has a decent chance at getting a vote. Nowadays, that’s not the way things frequently work. Instead, you have policy being made elsewhere: frequently amongst leadership, frequently with the House Rules Committee weighing in, drafts of bills being swapped in at the last moment that look different from the work product that may have come in—all of which can lead to a diminishment of committee strength.

All right, we have reached our time. Dr. Maya Kornberg, thank you for helping us better understand congressional committees and what they do in Congress.

Maya Kornberg:

Thank you so much for having me.

Kevin Kosar:

Thank you for listening...]]>4496c787-b384-48f9-b39a-0925e50ce789Mon, 06 Feb 2023 06:00:00 -050022:20falsefull3131Partisan Polarization: Is It Crippling Congress? (with Frances E. Lee)The topic of this episode is: “Partisan polarization: Is it crippling Congress?”

My guest is Frances Lee. She is a professor of politics and public affairs at Princeton University and a top scholar on Congress. She is the author and co-author of many articles and books on Congress, and has written for popular publications including the Atlantic magazine and the New York Times. Most recently she and James Curry published, The Limits of Party: Congress and Lawmaking in a Polarized Era (Chicago 2020), which analyzes and addresses the subject of this episode—polarization in our national legislature.

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our republic. It's a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be, and that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I'm your host, Kevin Kosar, and I'm a resident scholar at the American Enterprise Institute, a think tank in Washington, D.C.

Professor Lee, welcome to the podcast.

Frances E. Lee:

Thank you, Kevin. It's great to be here.

Kevin Kosar:

Let's start by ensuring that we all are on the same page: you, I, and listeners alike. When we speak of Congress, what do we mean by the term partisan polarization?

Frances E. Lee:

Partisan polarization has multiple meanings and I think that's probably why you began with this question.

A layman's or a dictionary definition of polarization means division into two sharply contrasting groups. Congress is clearly polarized in this sense. Congress sees much more partisan conflict. Conflict in Congress breaks down more reliably on partisan lines than it did throughout most of the 20th century. We routinely see votes that pit 90% or more Democrats against 90% or more Republicans, a partisan divide that's more deep and predictable than we used to see.

However, by partisan polarization, political scientists often mean something more technical. In its most rigorous form, the concept of polarization is grounded in spatial theory. It rests on a theorized choice space in which policy preferences are ranged on an underlying continuum from left to right. In this sense, parties become more polarized as the preferences of members become more distinctly bimodal, and as the two parties’ modes move farther apart from one another.

It's far from clear that parties are polarized in this second sense. The problem is that the issues at stake in congressional politics are diverse. On some issues, the congressional parties have moved closer together and on some issues, they've moved farther apart. There's little doubt that the post-Trump parties in Congress are farther apart on immigration than they were. There's a growing partisan divide opening up on transgender issues. Clearly, the parties are farther apart today on issues relating to the COVID pandemic than they were in March 2020.

But on other issues, the parties have moved closer together. Republicans and Democrats differ less on trade policy today than they did in the past, with the Republican Party having moved more toward a more protectionist stance under Trump. The budget deficit and government spending became less partisan during the Trump years as both parties came together around an unprecedented response to the COVID pandemic. Trump presided over a significant reform of criminal justice policy. It was bipartisan. Republicans and Democrats in Congress have worked together on foreign policy a lot over the past decade from sanctions on Russia to the huge Ukraine aid package under Biden. There's reporting in the lead-up to the congressional elections of 2022 that the Republican Party has given up on the issue of Obamacare repeal.

So have the parties moved farther apart or are they closer together? I have no idea how to characterize the parties in an absolute sense. It depends on what issue you're talking about. I'm not sure how you go about averaging across all the diverse issues on the congressional agenda to say that the parties are farther apart ideologically than they used to be. I think it's clear that Republicans and Democrats are more partisan in their voting behavior, but what that means in terms of ideology is contested.

Kevin Kosar:

It sounds like one temptation we have is to associate stark differences in voting behavior with the legislators themselves believing very different things rather than the possibility that some are simply voting strategically, voting with their crowd, or for other reasons—perhaps getting through the primaries or something. Is that right?

Frances E. Lee:

That's right, absolutely. Of course, nothing produces more reliable partisan voting than questions of procedure—who's going to control the floor agenda? The majority party supports its leadership in controlling the floor and the minority party contests it, and that continually produces party line voting. But what does that mean in terms of the party's larger ideological agendas? It's not clear. It's this contest for power over the agenda.

There’s also positioning related to elections. Elections are zero-sum, so you can cast votes with an eye toward the stance that you want to portray your party as having on an issue, rather than expecting those votes to have any effect on public policy.

Kevin Kosar:

Right. We shouldn't confuse symbolic action in some cases with the essence of the matter and assume that people have lost negotiating space that may actually exist.

I feel like those of us who pay attention to Congress have read so many articles—of one sort or another—which say we are a way more polarized Congress or a way more polarized nation than ever before, or at least in...]]>The topic of this episode is: “Partisan polarization: Is it crippling Congress?”

My guest is Frances Lee. She is a professor of politics and public affairs at Princeton University and a top scholar on Congress. She is the author and co-author of many articles and books on Congress, and has written for popular publications including the Atlantic magazine and the New York Times. Most recently she and James Curry published, The Limits of Party: Congress and Lawmaking in a Polarized Era (Chicago 2020), which analyzes and addresses the subject of this episode—polarization in our national legislature.

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our republic. It's a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be, and that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I'm your host, Kevin Kosar, and I'm a resident scholar at the American Enterprise Institute, a think tank in Washington, D.C.

Professor Lee, welcome to the podcast.

Frances E. Lee:

Thank you, Kevin. It's great to be here.

Kevin Kosar:

Let's start by ensuring that we all are on the same page: you, I, and listeners alike. When we speak of Congress, what do we mean by the term partisan polarization?

Frances E. Lee:

Partisan polarization has multiple meanings and I think that's probably why you began with this question.

A layman's or a dictionary definition of polarization means division into two sharply contrasting groups. Congress is clearly polarized in this sense. Congress sees much more partisan conflict. Conflict in Congress breaks down more reliably on partisan lines than it did throughout most of the 20th century. We routinely see votes that pit 90% or more Democrats against 90% or more Republicans, a partisan divide that's more deep and predictable than we used to see.

However, by partisan polarization, political scientists often mean something more technical. In its most rigorous form, the concept of polarization is grounded in spatial theory. It rests on a theorized choice space in which policy preferences are ranged on an underlying continuum from left to right. In this sense, parties become more polarized as the preferences of members become more distinctly bimodal, and as the two parties’ modes move farther apart from one another.

It's far from clear that parties are polarized in this second sense. The problem is that the issues at stake in congressional politics are diverse. On some issues, the congressional parties have moved closer together and on some issues, they've moved farther apart. There's little doubt that the post-Trump parties in Congress are farther apart on immigration than they were. There's a growing partisan divide opening up on transgender issues. Clearly, the parties are farther apart today on issues relating to the COVID pandemic than they were in March 2020.

But on other issues, the parties have moved closer together. Republicans and Democrats differ less on trade policy today than they did in the past, with the Republican Party having moved more toward a more protectionist stance under Trump. The budget deficit and government spending became less partisan during the Trump years as both parties came together around an unprecedented response to the COVID pandemic. Trump presided over a significant reform of criminal justice policy. It was bipartisan. Republicans and Democrats in Congress have worked together on foreign policy a lot over the past decade from sanctions on Russia to the huge Ukraine aid package under Biden. There's reporting in the lead-up to the congressional elections of 2022 that the Republican Party has given up on the issue of Obamacare repeal.

So have the parties moved farther apart or are they closer together? I have no idea how to characterize the parties in an absolute sense. It depends on what issue you're talking about. I'm not sure how you go about averaging across all the diverse issues on the congressional agenda to say that the parties are farther apart ideologically than they used to be. I think it's clear that Republicans and Democrats are more partisan in their voting behavior, but what that means in terms of ideology is contested.

Kevin Kosar:

It sounds like one temptation we have is to associate stark differences in voting behavior with the legislators themselves believing very different things rather than the possibility that some are simply voting strategically, voting with their crowd, or for other reasons—perhaps getting through the primaries or something. Is that right?

Frances E. Lee:

That's right, absolutely. Of course, nothing produces more reliable partisan voting than questions of procedure—who's going to control the floor agenda? The majority party supports its leadership in controlling the floor and the minority party contests it, and that continually produces party line voting. But what does that mean in terms of the party's larger ideological agendas? It's not clear. It's this contest for power over the agenda.

There’s also positioning related to elections. Elections are zero-sum, so you can cast votes with an eye toward the stance that you want to portray your party as having on an issue, rather than expecting those votes to have any effect on public policy.

Kevin Kosar:

Right. We shouldn't confuse symbolic action in some cases with the essence of the matter and assume that people have lost negotiating space that may actually exist.

I feel like those of us who pay attention to Congress have read so many articles—of one sort or another—which say we are a way more polarized Congress or a way more polarized nation than ever before, or at least in recent memory. Based on what you’re telling me, that seems to be a bit of an overstatement.

Frances E. Lee:

Intense partisan conflict is not new to US politics. I think it's probably the normal state of affairs.

The decades after the Great Depression in which an internally divided Democratic Party enjoyed nearly continuous majority status for decades was a period that was lower in partisan conflict than is typical for the whole sweep of US history. It's probably an exceptional period rather than the norm, but it tends to be the period against which people tend to benchmark the present and they say, “Well, it's more partisan than it was in the '50s or the '70s or the '80s.” So those decades then become the comparison point.

My qualitative work looking at partisanship in Congress over time suggests that members of Congress virtually always say and probably feel and believe that things are worse now than they ever have been before. They've been saying that as long as far back as I can find. They said it during the Reagan era. They said it under Clinton. They said it under George W. Bush. They of course said it under Obama and under Trump. I even found members in the 1970s telling reporters that Congress had never been as partisan as it was then. Of course, the early '70s are the nadir of partisan conflict as far as roll call voting goes, but it didn't feel that way to embers of Congress at the time.

So I tend to take all these claims that things are worse now than they have ever been before with a grain of salt. Conflict is just endemic to Congress. I'm a political scientist, not a historian, but I haven't found a period in congressional history where there wasn't intense conflict on at least some dimensions in Congress.

Kevin Kosar:

Absolutely. During the New Deal era, many Republicans were accusing the President and Democrats of destroying the constitutional order, taking over the economy, being a dictator, and possibly ushering in a new kind of American version of socialism or fascism or some sort of strongmanism backed by a potent party. That language was out there, but I think we forget it as we think back to the greatest generation in all those glorious years.

Frances E. Lee:

I think we forget it as the issues that sparked such intense conflict fade. And so the current issues loom so much larger, and we say that it's so much worse now than it was then. But I think to a great extent, it's an illusion.

Kevin Kosar:

So we say we don't want to wave away polarization and just say doesn't exist. And it sounds like you say that it certainly does exist, but it is issue-specific as opposed to a general ideological parting of ways between the parties. Is that fair to stay?

Frances E. Lee:

Well, I'm just agnostic on that question because I really don't know how one goes about characterizing all the issues before Congress in a single abstract space. We see the parties move closer together on some issues and farther apart on others. We also know that they behave in more reliably partisan ways than in the past. So that's an objective fact about life in Congress today. But how we interpret it, and what it means for the policy stakes, I think we need to view that issue by issue.

Kevin Kosar:

Right, and I suppose the only thing that we can clearly point to and say, "Hey, this looks a little different than say 50 years ago," is the voting behavior. The days when conservative Democrats would work with Republicans and push some fiscal responsibility legislation or military buildup legislation seem to have disappeared for us, but maybe not.

Frances E. Lee:

Well, what we don't see today is a party able to pick off a handful of members of the opposing party to put together a small bipartisan coalition. But most everything that becomes law today has big bipartisan support. What you see today is that policy that becomes law is negotiated between both parties—the leadership of both parties. And so when something passes, it tends to command majorities of both parties, not a majority of one party and some moderate members or a handful of the other party. But on legislating, we see big bipartisanship today. That really hasn't changed.

Kevin Kosar:

And this gets to the crux of the issue. There's so much anxiety that Congress is broken, that it just can't get things done, and therefore all power is flowing to the executive branch and the judiciary and Congress is just this awful cacophony that's not making policy. Based on your research, this caricature sounds like it’s not even remotely true. In fact, Congress is working in a bipartisan fashion and on landmark and significant pieces of legislation too.

Frances E. Lee:

That's right. I think the congressional gridlock narrative has taken on a bit of a zombie status, and it persists in the face of a lot of evidence to the contrary.

Recent congressional productivity has been quite remarkable. The COVID response in 2020 was historically vast—by far the largest crisis intervention in US history, larger in inflation-adjusted terms than the 2009 stimulus and the whole New Deal combined. You really can only compare levels of spending in 2020 with levels during war production in 1943. And this was passed in an entirely bipartisan manner.

And the 2020 Congress—so this is the Congress in the last presidential election year—did a whole lot more than COVID. It also passed an important energy environment package as part of the “Coronabus” at the end of the year, which was the most significant environmental legislation Congress had passed up until that point. It passed a large parks and conservation package, a new free trade agreement with Mexico and Canada, and interestingly, a North American free trade agreement that had the support of labor. A paid parental leave package for federal civilian workers. That was 2020.

This Congress has continued with a frenzied lawmaking pace. It was kicked off with the American Rescue Plan—a huge package only exceeded by the CARES Act that had passed in 2020—a major infrastructure authorization, a huge science and technology competitiveness law—the CHIPS Act—a huge Ukraine aid package, a modest gun safety law, and then it managed to pass another big reconciliation bill—the multi-billion-dollar Inflation Reduction Act. So I ask: where is the gridlock here?

I think that commentators tend to mistake the difficulties that parties have with passing their programmatic agendas with gridlock. When they're frustrated that their party isn't able to deliver on its platform, they say Congress is gridlocked and Congress does have a really hard time passing partisan programs.

But that's often because majority parties cannot agree internally, not because of gridlock (the ability of a minority party to block). Obamacare repeal and replace failed because Republicans couldn't get their whole party on board. The same was true of Biden's Build Back Better package that failed. They salvaged a small piece of it with the Inflation Reduction Act because not all Democrats agreed.

Even if Congress isn't passing a partisan program, it can be accomplishing a lot legislatively, which is what we have been seeing. But these achievements tend to get quickly passed over by a news media that focuses primarily on conflict and...]]>a3366abc-1aa5-4c66-8c1a-5516d812636dTue, 03 Jan 2023 06:00:00 -050024:49falsefull3030What Are the Duties of the Speaker of the House of Representatives? (with Paul Ryan)The topic of this episode is, “What are the Duties of the Speaker of the House of Representatives?”

My guest is Paul Ryan. Paul Ryan was the 54th Speaker of the U.S. House of Representatives. In office from October 2015 to January 2019, he was the youngest Speaker in nearly 150 years.

Prior to becoming Speaker of the House, Paul served as the Chairman of the House Ways and Means Committee. He also served as Chairman of the House Budget Committee from 2011-2015. In 2012, he was selected to serve as Governor Mitt Romney’s Vice-Presidential nominee. Paul was first elected to Congress at age 28 and represented Wisconsin’s First District for two decades.

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our republic. It's a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be, and that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I'm your host, Kevin Kosar, and I'm a resident scholar at the American Enterprise Institute, a think-tank in Washington DC.

Speaker Ryan, welcome to the podcast.

Paul Ryan:

Kevin, good to be with you. Thanks for having me.

Kevin Kosar:

Article 1 of the US Constitution states, "The House of Representatives shall choose their Speaker and other officers." How does the House pick a Speaker these days?

Paul Ryan:

The way it works is the majority party in their conference—we call the Republican body the Conference, the Democrats call theirs the Caucus—will have a vote as to whom they nominate for Speaker. That's a plurality vote—the person who gets the most votes wins. Kevin McCarthy won that, which means he is to be presented to the full House on January 3rd when a new session is sworn in and he has to get—or she, in Nancy [Pelosi]'s case—has to get 218 votes. The Democratic Caucus will also vote on who they nominate to be the Speaker. If [Pelosi] stays, they'll probably nominate her. If not, I don't know, Hakeem Jeffries or somebody like that.

A candidate must win a majority vote—218 votes—on the House floor when the new session is sworn in. Then that person is sworn in by the Dean of the House—the longest serving member—and that Speaker becomes the newly-installed Speaker for that new session of Congress. Then that person swears in all of Congress. That's how it gets started.

Kevin Kosar:

The Constitution says the House shall have a Speaker, but it doesn’t provide a full job description. In the earliest days of the Republic, the Speaker’s duty was to preside over the chamber—to be the guy who runs the meeting. Times sure have changed. What are the duties and responsibilities of the Speaker today?

Paul Ryan:

Yeah, they're endless and infinite in some ways. It is not like it was in the old days. It's a bigger Congress—there are more states than they envisioned and the government does so many more things than it used to do in the first Congresses.

You're basically the chief executive officer of the legislative branch. You oversee the entire legislative branch, so technically you have something like 12,500 employees. In a way, you’re like the mayor of the legislative branch, overseeing the legislative council, the law enforcement agency, the power plant, the janitors, etc. And you have deputies that run all of that—whom you appoint—such as the Architect of the Capital, the Sergeant of Arms. So, there's an administrative side of being Speaker of the House that most people aren't familiar with. 

But you're also the head of the legislative branch. As far as the work of legislating in the House itself, you basically control the flow of legislation. You oversee your party's selection of memberships of committees and chairmanships of committees, and through your leadership team, you determine who does where, when, and how, more or less. That is, you determine what bills get scheduled to the floor. You work with the committee chairmen to make sure that they get their bills to the floor. You set the floor schedule and through the rules committee—which is controlled by the Speaker—you determine the way in which debate occurs: Are there amendments to be made, and in what order? What kind of a rule? Is it an open rule, where any amendment can be made in order, or is it a structured rule, where only certain kinds of amendments can be made in order? And by controlling the debate, you can control the outcome of that debate by virtue of the changes you allow or do not allow to happen to the legislation.

It's basically like an air traffic controller where you're doing the ground control, which is the committees—what are they doing and when are they doing that. And you're also doing air traffic control—what bills go to the floor, what bills get passed, etc.

You also have to negotiate with the Senate when they have legislation. In that case, you appoint the negotiators in conference committees to negotiate the reconciliation of legislation with the Senate, but sometimes that bubbles up to you and you become the primary negotiator with the Senate. Then you work on getting the White House lined up to pass something. So you operate negotiations—House to Senate, Congress to the presidency—and how the House curates and builds its legislation. That's the legislative side of it.

In the modern era, you’re a political person as well, because you're the head of your party for your body—for the House Republicans in my case or House Democrats in Pelosi's case—and you're probably also the top fundraiser for the party. So when you're not in the Capital legislating and managing the legislative process or the legislative branch, you're out fundraising for your party to make sure that members have the resources that run their campaigns. So it's three things: a political job, a managerial ministerial job, and then it's a legislative job.  

Kevin Kosar:

And I guess implicit in what you are describing is that, presumably as a Speaker, you have to spend a lot of your time bargaining amongst the factions within the party because there's always intra-party disagreement.

Paul Ryan:

Every day. I like to have a known schedule. I like to have a method for my week, so we would start the beginning of the week with a conference with all of our members.

Every morning would include a meeting with my leadership team to see what the day's going to look like, what the week looks like, and what the long term looks like. On Wednesdays, I would have lunch with the various heads of the various factions in the House Republican conference. So I stayed very close with the leaders of all the various factions—the Tuesday Group, the Study Committee, the Freedom Caucus, and people in between. And I'd rotate various people in so that I had constant lines of communication with the various factions in our conference and in between those as well because there's a big diaspora of different types of views and temperaments within just the House Republican Conference. So the key for me was constant communication.

Early on, we would craft a jointly assembled agenda where we all collaborated and worked on creating an agenda that we believed in, which we usually assembled in our retreats or different processes. Then we would go effectuate and execute our agenda, and while we were effectuating our agenda, maintained constant communication to make sure everyone was playing the role and getting constant feedback and input from people. And it's a consensus-driven process that you had to dry. It is not a dictatorial role. People think the Speaker just dictates. Not at all. You have to forge and bring consensus to get people to unify on a common cause so that you can pass legislation because not everything's going to be bipartisan. Some of it's going to be partisan—e.g., tax reform. So that's the day-to-day thing you do, and you have to manage all of these coalitions.

Kevin Kosar:

Before television became common in the United States, Speakers of the House were relatively unknown to 99% of America. That too has changed. Is communicating with the public, to be the voice of the majority of the House, also consume a lot of time?

Paul Ryan:

Yeah. You do two press conferences each week as Speaker of the House, one at the beginning and end of the week. So it's just open for the press to shoot at you and ask you questions. But then you have a lot of strategic communication in between, which is pretty much TV, radio, and print—but mostly a lot of TV—interviews. I think that’s part of the reason I got the job of Speaker—I actually didn't look for the job, it found me.

I don't know if you know the story well, but John Boehner left because the Freedom Caucus was going to invoke this motion to vacate, and he left to spare the members of that vote. The next guy in line—who is now the next guy in line, Kevin McCarthy—at that time didn't have the votes to get it. So the consensus came to me to do it. I was the chairman of the Ways and Means Committee at the time.

I think one of the reasons I became the consensus candidate that all the factions in Congress agreed to me was partly because I was a policy guy and a policy maker, and they agreed with the policies that I had been pushing through the budget and ways means...]]>The topic of this episode is, “What are the Duties of the Speaker of the House of Representatives?”

My guest is Paul Ryan. Paul Ryan was the 54th Speaker of the U.S. House of Representatives. In office from October 2015 to January 2019, he was the youngest Speaker in nearly 150 years.

Prior to becoming Speaker of the House, Paul served as the Chairman of the House Ways and Means Committee. He also served as Chairman of the House Budget Committee from 2011-2015. In 2012, he was selected to serve as Governor Mitt Romney’s Vice-Presidential nominee. Paul was first elected to Congress at age 28 and represented Wisconsin’s First District for two decades.

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our republic. It's a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be, and that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I'm your host, Kevin Kosar, and I'm a resident scholar at the American Enterprise Institute, a think-tank in Washington DC.

Speaker Ryan, welcome to the podcast.

Paul Ryan:

Kevin, good to be with you. Thanks for having me.

Kevin Kosar:

Article 1 of the US Constitution states, "The House of Representatives shall choose their Speaker and other officers." How does the House pick a Speaker these days?

Paul Ryan:

The way it works is the majority party in their conference—we call the Republican body the Conference, the Democrats call theirs the Caucus—will have a vote as to whom they nominate for Speaker. That's a plurality vote—the person who gets the most votes wins. Kevin McCarthy won that, which means he is to be presented to the full House on January 3rd when a new session is sworn in and he has to get—or she, in Nancy [Pelosi]'s case—has to get 218 votes. The Democratic Caucus will also vote on who they nominate to be the Speaker. If [Pelosi] stays, they'll probably nominate her. If not, I don't know, Hakeem Jeffries or somebody like that.

A candidate must win a majority vote—218 votes—on the House floor when the new session is sworn in. Then that person is sworn in by the Dean of the House—the longest serving member—and that Speaker becomes the newly-installed Speaker for that new session of Congress. Then that person swears in all of Congress. That's how it gets started.

Kevin Kosar:

The Constitution says the House shall have a Speaker, but it doesn’t provide a full job description. In the earliest days of the Republic, the Speaker’s duty was to preside over the chamber—to be the guy who runs the meeting. Times sure have changed. What are the duties and responsibilities of the Speaker today?

Paul Ryan:

Yeah, they're endless and infinite in some ways. It is not like it was in the old days. It's a bigger Congress—there are more states than they envisioned and the government does so many more things than it used to do in the first Congresses.

You're basically the chief executive officer of the legislative branch. You oversee the entire legislative branch, so technically you have something like 12,500 employees. In a way, you’re like the mayor of the legislative branch, overseeing the legislative council, the law enforcement agency, the power plant, the janitors, etc. And you have deputies that run all of that—whom you appoint—such as the Architect of the Capital, the Sergeant of Arms. So, there's an administrative side of being Speaker of the House that most people aren't familiar with. 

But you're also the head of the legislative branch. As far as the work of legislating in the House itself, you basically control the flow of legislation. You oversee your party's selection of memberships of committees and chairmanships of committees, and through your leadership team, you determine who does where, when, and how, more or less. That is, you determine what bills get scheduled to the floor. You work with the committee chairmen to make sure that they get their bills to the floor. You set the floor schedule and through the rules committee—which is controlled by the Speaker—you determine the way in which debate occurs: Are there amendments to be made, and in what order? What kind of a rule? Is it an open rule, where any amendment can be made in order, or is it a structured rule, where only certain kinds of amendments can be made in order? And by controlling the debate, you can control the outcome of that debate by virtue of the changes you allow or do not allow to happen to the legislation.

It's basically like an air traffic controller where you're doing the ground control, which is the committees—what are they doing and when are they doing that. And you're also doing air traffic control—what bills go to the floor, what bills get passed, etc.

You also have to negotiate with the Senate when they have legislation. In that case, you appoint the negotiators in conference committees to negotiate the reconciliation of legislation with the Senate, but sometimes that bubbles up to you and you become the primary negotiator with the Senate. Then you work on getting the White House lined up to pass something. So you operate negotiations—House to Senate, Congress to the presidency—and how the House curates and builds its legislation. That's the legislative side of it.

In the modern era, you’re a political person as well, because you're the head of your party for your body—for the House Republicans in my case or House Democrats in Pelosi's case—and you're probably also the top fundraiser for the party. So when you're not in the Capital legislating and managing the legislative process or the legislative branch, you're out fundraising for your party to make sure that members have the resources that run their campaigns. So it's three things: a political job, a managerial ministerial job, and then it's a legislative job.  

Kevin Kosar:

And I guess implicit in what you are describing is that, presumably as a Speaker, you have to spend a lot of your time bargaining amongst the factions within the party because there's always intra-party disagreement.

Paul Ryan:

Every day. I like to have a known schedule. I like to have a method for my week, so we would start the beginning of the week with a conference with all of our members.

Every morning would include a meeting with my leadership team to see what the day's going to look like, what the week looks like, and what the long term looks like. On Wednesdays, I would have lunch with the various heads of the various factions in the House Republican conference. So I stayed very close with the leaders of all the various factions—the Tuesday Group, the Study Committee, the Freedom Caucus, and people in between. And I'd rotate various people in so that I had constant lines of communication with the various factions in our conference and in between those as well because there's a big diaspora of different types of views and temperaments within just the House Republican Conference. So the key for me was constant communication.

Early on, we would craft a jointly assembled agenda where we all collaborated and worked on creating an agenda that we believed in, which we usually assembled in our retreats or different processes. Then we would go effectuate and execute our agenda, and while we were effectuating our agenda, maintained constant communication to make sure everyone was playing the role and getting constant feedback and input from people. And it's a consensus-driven process that you had to dry. It is not a dictatorial role. People think the Speaker just dictates. Not at all. You have to forge and bring consensus to get people to unify on a common cause so that you can pass legislation because not everything's going to be bipartisan. Some of it's going to be partisan—e.g., tax reform. So that's the day-to-day thing you do, and you have to manage all of these coalitions.

Kevin Kosar:

Before television became common in the United States, Speakers of the House were relatively unknown to 99% of America. That too has changed. Is communicating with the public, to be the voice of the majority of the House, also consume a lot of time?

Paul Ryan:

Yeah. You do two press conferences each week as Speaker of the House, one at the beginning and end of the week. So it's just open for the press to shoot at you and ask you questions. But then you have a lot of strategic communication in between, which is pretty much TV, radio, and print—but mostly a lot of TV—interviews. I think that’s part of the reason I got the job of Speaker—I actually didn't look for the job, it found me.

I don't know if you know the story well, but John Boehner left because the Freedom Caucus was going to invoke this motion to vacate, and he left to spare the members of that vote. The next guy in line—who is now the next guy in line, Kevin McCarthy—at that time didn't have the votes to get it. So the consensus came to me to do it. I was the chairman of the Ways and Means Committee at the time.

I think one of the reasons I became the consensus candidate that all the factions in Congress agreed to me was partly because I was a policy guy and a policy maker, and they agreed with the policies that I had been pushing through the budget and ways means committees. But also because I had already had a stint at the national political level running for vice president with Mitt Romney, I'd already gone through the gauntlet. I already got shot at a thousand times by the national media. I already knew how to handle national media and had the thick skin for national media exposure.

That was considered a key part of the job and is today a key part of the job. You've got to be able to handle national media exposure and operate in that environment. That was not the old days. That is definitely how you do it today, though. I don't think Tip O'Neill was necessarily the most charismatic TV guy. So speakers like that—and that was fairly recent history—didn't do communications. Today, the Speaker is also very much of a communications job.

Kevin Kosar:

That's an awful lot of responsibilities, which amounts to an extremely heavy load. Who helps the Speaker get all those things done?

Paul Ryan:

Yeah, your staff—and you have a pretty sizable staff. My life has always been planned in 15-minute increments. As Speaker, you basically try to balance your time, and your chief of staff helps you design your schedule. And then you have a whole bunch of people on your staff who help you organize your times—make sure that the meetings you have are very productive and try and curate resolutions to whatever problem you're trying to solve before the meeting happens. So when you get a meeting, you can more or less finish the job of solving a problem, getting to a decision, executing something, some sort of a mission, or something like that. So you have to have a lot of staff.

But different Speakers have different leadership styles. For instance, [Pelosi] really liked consolidating power in the Speaker's office. I actually recoiled against that. Frankly, the modern Speaker has too much power. My goal was to try to decentralize power as best and as much as I could. I felt that way because I was a committee chairman who believed that I and my fellow committee members should be writing the policy on the issues in our jurisdiction. After all, we were spending all of our time in that policy area, not somebody who maybe thinks a half hour a week on this issue up in leadership. My goal was always to push power, responsibility, and communications out to the committees where the specialists actually did the job.

That's the opposite of the way the Pelosi Congress runs, and I have every belief that Kevin McCarthy will decentralize power and re-empower the committees. But having said that, all of that as Speaker—because you command so much attention—you have to also communicate what those committees are producing. You have to communicate your party's vision and views on where they're going and the various policy nuances that are in between.

But the key to me in governing the place successfully—and as the Founders intended—is to decentralize power and equip the committees with the power and agency to formulate the policy in their areas of jurisdiction, because they're the experts. They're the ones who spend day in and day out combing through CRS (Congressional Research Service) reports, GAO (Government Accountability Office) reports, IG (Inspector General) audits, and all of the rest. They're the ones that really should be setting the policy, and that to me is the way Congress ought to be run.

Kevin Kosar: 

Yes, the process over the last 50 years where so much power has been traded up to the Speaker, arguably it's reached its apex, and it has some benefits. They craft bills behind closed doors and put them in front of folks and they vote it up or down. But at the same time, everybody seems to be miserable because they realize that as a legislator, they've traded away the essence of their job.

Paul Ryan:

Yeah, some people don't want to take responsibility for the choices you've made. But in a lot of it, I think it's just the consolidation of power that has accrued to the Speakership. I don't like that frankly. I didn't like it then. I don't like it now. I think a lot of it comes from the way the budget process has been basically broken. In order to address this, one of the things I got an agreement on within one of our omnibus appropriation bills was a bicameral committee on budget process reform. I put Steve Womack in charge of it for the House. So we had bipartisan members of the House and Senate to get us to a new budget process where we would decentralize power and have the budget committee and the appropriation committees actually write their bills, negotiate their bills, and pass separate bills.

Now, that Womack committee produced a great report on annual budgeting and different way of doing the budget only to be basically killed by the Democrats. I think [Schumer] and [Pelosi]—no offense to them, but they—like consolidating power. They like four corners deals. Four corner deals are where the Speaker and the Minority Leader of the House, and the Majority Leader and the Minority Leaders of the Senate—the four of them and their staff basically write a bill. I don't even think I have room on this screen to show the size of the bill—three feet thick—that funds all of the discretionary spending, well over a trillion dollars annually. And that is put together more or less by the Appropriations Committee, but molded and negotiated by those four people and their staffs. It is not how government should work. It gives far too much power to the Speakership.

I made lots of decisions. Frankly, I think I'm a smart guy. I've been around and I try to use good ethics and principles, but I made so many decisions—that I frankly shouldn't have been making—in the design of these bills and in negotiating these things. The committees with jurisdiction should be having the responsibility to make those decisions. So that's one of the unfinished businesses that I left—I tried to get it done with this bicameral committee, but it's going to have to be bipartisan.

Unfortunately, I think Democrats—whether it's because they're collectivists by nature or because they like consolidating power—don't want to participate in opening up Congress, decentralizing its power, and empowering rank-and-file members in the committee process to do its job. I think if you do, you're going to get a better product—it's going to be a more clear, accountable, and transparent government. But that is not what we have today, and it clearly takes both parties in both houses to agree on the solution on how to fix that.

Kevin Kosar:

You spent time as a representative, you spent time chairing a committee. You then spent time as Speaker, and now you've had some time away from the chamber. Drawing on that experience, drawing on your wisdom, if you had one piece of advice for an incoming Speaker, what would it be?  

Paul Ryan:

Decentralize the power. Open the place up. You won’t control or predict every outcome, but that's okay. That's the sloppiness of a republic and the way it should be. So just decentralize the power and restore the institution. The institution has been attrited away to the executive branch. Part of that's the Progressive agenda. Part of that's just power consolidation. But rebuild the institution of the legislative branch, and the best way to do that is to empower the members and decentralize its power within the institution. Get the power of the legislative branch back.

Kevin Kosar:

All right. Speaker Paul Ryan, thank you for helping us better understand the responsibilities of the Speaker of the House of Representatives.

Paul Ryan:

Good to be with you, Kevin. Thanks for having me.

Kevin Kosar:

Thank you for listening to Understanding Congress, a podcast of the American Enterprise Institute. This program was produced by Jaehun Lee and hosted by Kevin Kosar. You can subscribe to Understanding Congress via Stitcher, iTunes, Google Podcasts, and TuneIn. We hope you’ll share this podcast with others, and tell us what you think about it by posting your thoughts and questions on Twitter and tagging @AEI. Once again, thank you for listening, and have a great day.

Polarization in Congress is a well-documented fact of life. This is particularly true on high salience issues, such as immigration and abortion. Yet the tendency of legislators to reflexively oppose policy ideas offered by the other party has bled into other, more prosaic issues. For example, in late 2021 an infrastructure bill became a bone of political contention. Republicans who voted for it were denounced by their colleagues. Nevermind the fact that the legislation might actually do good for these legislators’ constituents.

Why are there so many hard left and hard right members of our national legislature? To help us think through this issue, my guest is Andrew B. Hall, a political scientist at Stanford University. Dr. Hall has published many articles on elections and representation and is the author of Who Wants to Run?: How the Devaluing of Political Office Drives Polarization (Chicago, 2019).

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our Republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation.

I'm your host, Kevin Kosar, and I'm a resident scholar at the American Enterprise Institute, a think tank in Washington DC.

Andy, welcome to the podcast.

Andrew Hall:

Excited to be here. Thank you.

Kevin Kosar:

If I had a dollar given to me every time somebody said, “Congress is polarized because Americans are polarized,” I'd have enough bucks to take a really good vacation. The idea that America has become the land of red states and blue states, with right wing rural folks and left wing city folks, has become pretty popular. You see references to it in the press all the time. So that prompts the question—we have a polarized Congress: are voters the reason we have a polarized Congress?

Andrew Hall:

It's a very reasonable question. I don't think it has nothing to do with it. I do think it's true that some Americans have become quite polarized. Obviously, we see it play out with things like the rural-urban divide that you're talking about. But I think that there's a really important fallacy that a lot of people don't always think through when they think about Congress polarizing, which is that there's absolutely no guarantee that any change or non-change in people's opinions, will map into what congressional candidates or members of Congress say or do, because there's this intermediate step which is really important—who actually decides to stand up and run for Congress? If the people who decide to run are just systematically different from what the voters at large want, then unfortunately, what people want or what they think or how they think or how polarized they are may not have any reflection in what options they're actually presented to vote on.

So—to get back to your question itself—I think it's of course true that people are polarizing to some degree. I think it's vastly overstated. And when you look into evidence on most salient policy issues, it turns out that there's a large chunk of Americans caught in the middle, who find both parties unpopular, and who don't like the positions being espoused by lots of salient political officials on either side. But the people who actually run for Congress are polarizing super dramatically, so the voters are not being given a lot of opportunities to vote for the types of people they would prefer, who might actually be more moderate.

Kevin Kosar:

Well, if this is not a bottom up phenomenon, if it's not the case that the average American has a really intense view one way or another on all sorts of issues, like updating the Electoral Count Act of 1887—on which we had a party-line vote in the House the other week. If that's not the issue, a polarized public driving everything, then is this about the political parties? Are the political parties simply recruiting candidates who are on the extreme left or extreme right?

Andrew Hall:

I don't think that aren't part of the story. I think parties are driven by the kinds of people who are willing to spend a lot of time on party-related activities. And those people are not going to be very representative of the public at large. They're going to be particularly passionate people, who might have more extreme views, and so they may want to go out and recruit candidates who fit their viewpoints. That certainly could be part of it. The thing I always like to emphasize though is that the word “party” carries a lot of connotations that don't make sense in the US system. The parties in the US are extremely weak. They don't really have a lot of carrots or sticks to offer people who are running or who have decided to run. For example, one of the most important things—that not everyone knows—is that anyone can run for office and say they're a Republican or a Democrat. The parties are feckless to define what it even means to be a member of the party because of this completely open system that we have.

If you look to parliamentary systems in Europe, the party can actually define who's on the ballot and even—in some places—order them or kick someone off if they're not reflective of what the party wants. That's just not how our system works. So when we think about the parties running candidates in the US, they just don't have that much to offer. They can beg people to run for them and they can certainly link them up with resources that help them run—such as campaign finance or other types of advising—and that definitely makes a difference, so I don't want to say they do nothing. But at the end of the day, they both struggle to convince people to run, because it's not a very appealing job.

They're also powerless to prevent people from running, which is—of course—most famously what we saw with Donald Trump, who was in no way a Republican, and who the Republican Party at large did not want to run in 2016. And yet look what happened. But more generally, they're not that powerful at determining who runs. So, if we want to explain the set of people who do run, especially for Congress—which is a lower salient office compared to president—we need to look to other explanations besides just party recruitment.

Kevin Kosar:

If the parties are not these powerful entities that can screen out people, at least not in the US context, what about the primaries: this process by which you have a low turnout election, often in the summertime, where if you're a Democratic voter you get a ballot and it lists only Democrats. And if you're a Republican voter, you get a ballot that lists only Republicans. And if you're an Independent or something else, you either can't vote or you have to declare yourself for one party or another, which is frequently the case. Is this creating a self-selection process? Are primaries driving extremism in Congress and, therefore, polarization?

Andrew Hall:

I definitely think primaries are part of the story, and the reason I think they're part of the story is that I think there's a general phenomenon in American politics across a wide range of contexts where more extreme people care more and are more willing to show up, do stuff, and speak loudly. If we look across the entire system—whether it's showing up at local city council meetings, tweeting relentlessly about your political views, or voting in a primary—we've created a system where, at almost every phase of every important part of the process, these small groups of people with extreme views are massively empowered relative to the rest of us, which I think is hugely problematic. I think primaries are a good example of this, where the set of people who turn out is a very, very small slice of the electorate. The turnout rates are remarkably small and it seems like they do have very different views, on average, from the rest of us. That can create and complicate incentives. One thing it does—which is related to what I think is going on—is it might give a more moderate candidate pause in thinking whether to run for office or not because they might not look forward to having to survive a bruising primary against someone who might be more naturally popular with this small primary electorate.

On the other hand, if I had to rank order the different parts of the system that are giving advantages to more extreme people, I wouldn't rank primaries as high as conventional wisdom might suggest. That's because primaries are really complicated, and there's a lot going on in primaries that's not ideological. If we look across the country, we can find lots of cases where, in fact, the more extreme person—the more culture wars-type person, whether on the left or the right—isn't actually the one who succeeds in the]]>The subject of this episode is, “Are elections fueling polarization in the House of Representatives?”

Polarization in Congress is a well-documented fact of life. This is particularly true on high salience issues, such as immigration and abortion. Yet the tendency of legislators to reflexively oppose policy ideas offered by the other party has bled into other, more prosaic issues. For example, in late 2021 an infrastructure bill became a bone of political contention. Republicans who voted for it were denounced by their colleagues. Nevermind the fact that the legislation might actually do good for these legislators’ constituents.

Why are there so many hard left and hard right members of our national legislature? To help us think through this issue, my guest is Andrew B. Hall, a political scientist at Stanford University. Dr. Hall has published many articles on elections and representation and is the author of Who Wants to Run?: How the Devaluing of Political Office Drives Polarization (Chicago, 2019).

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our Republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation.

I'm your host, Kevin Kosar, and I'm a resident scholar at the American Enterprise Institute, a think tank in Washington DC.

Andy, welcome to the podcast.

Andrew Hall:

Excited to be here. Thank you.

Kevin Kosar:

If I had a dollar given to me every time somebody said, “Congress is polarized because Americans are polarized,” I'd have enough bucks to take a really good vacation. The idea that America has become the land of red states and blue states, with right wing rural folks and left wing city folks, has become pretty popular. You see references to it in the press all the time. So that prompts the question—we have a polarized Congress: are voters the reason we have a polarized Congress?

Andrew Hall:

It's a very reasonable question. I don't think it has nothing to do with it. I do think it's true that some Americans have become quite polarized. Obviously, we see it play out with things like the rural-urban divide that you're talking about. But I think that there's a really important fallacy that a lot of people don't always think through when they think about Congress polarizing, which is that there's absolutely no guarantee that any change or non-change in people's opinions, will map into what congressional candidates or members of Congress say or do, because there's this intermediate step which is really important—who actually decides to stand up and run for Congress? If the people who decide to run are just systematically different from what the voters at large want, then unfortunately, what people want or what they think or how they think or how polarized they are may not have any reflection in what options they're actually presented to vote on.

So—to get back to your question itself—I think it's of course true that people are polarizing to some degree. I think it's vastly overstated. And when you look into evidence on most salient policy issues, it turns out that there's a large chunk of Americans caught in the middle, who find both parties unpopular, and who don't like the positions being espoused by lots of salient political officials on either side. But the people who actually run for Congress are polarizing super dramatically, so the voters are not being given a lot of opportunities to vote for the types of people they would prefer, who might actually be more moderate.

Kevin Kosar:

Well, if this is not a bottom up phenomenon, if it's not the case that the average American has a really intense view one way or another on all sorts of issues, like updating the Electoral Count Act of 1887—on which we had a party-line vote in the House the other week. If that's not the issue, a polarized public driving everything, then is this about the political parties? Are the political parties simply recruiting candidates who are on the extreme left or extreme right?

Andrew Hall:

I don't think that aren't part of the story. I think parties are driven by the kinds of people who are willing to spend a lot of time on party-related activities. And those people are not going to be very representative of the public at large. They're going to be particularly passionate people, who might have more extreme views, and so they may want to go out and recruit candidates who fit their viewpoints. That certainly could be part of it. The thing I always like to emphasize though is that the word “party” carries a lot of connotations that don't make sense in the US system. The parties in the US are extremely weak. They don't really have a lot of carrots or sticks to offer people who are running or who have decided to run. For example, one of the most important things—that not everyone knows—is that anyone can run for office and say they're a Republican or a Democrat. The parties are feckless to define what it even means to be a member of the party because of this completely open system that we have.

If you look to parliamentary systems in Europe, the party can actually define who's on the ballot and even—in some places—order them or kick someone off if they're not reflective of what the party wants. That's just not how our system works. So when we think about the parties running candidates in the US, they just don't have that much to offer. They can beg people to run for them and they can certainly link them up with resources that help them run—such as campaign finance or other types of advising—and that definitely makes a difference, so I don't want to say they do nothing. But at the end of the day, they both struggle to convince people to run, because it's not a very appealing job.

They're also powerless to prevent people from running, which is—of course—most famously what we saw with Donald Trump, who was in no way a Republican, and who the Republican Party at large did not want to run in 2016. And yet look what happened. But more generally, they're not that powerful at determining who runs. So, if we want to explain the set of people who do run, especially for Congress—which is a lower salient office compared to president—we need to look to other explanations besides just party recruitment.

Kevin Kosar:

If the parties are not these powerful entities that can screen out people, at least not in the US context, what about the primaries: this process by which you have a low turnout election, often in the summertime, where if you're a Democratic voter you get a ballot and it lists only Democrats. And if you're a Republican voter, you get a ballot that lists only Republicans. And if you're an Independent or something else, you either can't vote or you have to declare yourself for one party or another, which is frequently the case. Is this creating a self-selection process? Are primaries driving extremism in Congress and, therefore, polarization?

Andrew Hall:

I definitely think primaries are part of the story, and the reason I think they're part of the story is that I think there's a general phenomenon in American politics across a wide range of contexts where more extreme people care more and are more willing to show up, do stuff, and speak loudly. If we look across the entire system—whether it's showing up at local city council meetings, tweeting relentlessly about your political views, or voting in a primary—we've created a system where, at almost every phase of every important part of the process, these small groups of people with extreme views are massively empowered relative to the rest of us, which I think is hugely problematic. I think primaries are a good example of this, where the set of people who turn out is a very, very small slice of the electorate. The turnout rates are remarkably small and it seems like they do have very different views, on average, from the rest of us. That can create and complicate incentives. One thing it does—which is related to what I think is going on—is it might give a more moderate candidate pause in thinking whether to run for office or not because they might not look forward to having to survive a bruising primary against someone who might be more naturally popular with this small primary electorate.

On the other hand, if I had to rank order the different parts of the system that are giving advantages to more extreme people, I wouldn't rank primaries as high as conventional wisdom might suggest. That's because primaries are really complicated, and there's a lot going on in primaries that's not ideological. If we look across the country, we can find lots of cases where, in fact, the more extreme person—the more culture wars-type person, whether on the left or the right—isn't actually the one who succeeds in the primary. These advantages are not deterministic. I think a really good example—whenever you see one of these exaggerated newspaper articles about how primaries are fueling polarization—is trying to explain how Brad Raffensperger won his primary in Georgia, because I think that would've been just a textbook case for why supposedly the primary voters should have voted him out—because Trump didn't like him. Yet, that's not what happened, so I think the story's more complicated.

The thing I always like to remind people is that there's hundreds and hundreds of primaries each cycle, and most people are not paying attention to House primaries. The news only seizes on a few really wild and salient ones, but there're lots of other ones where who wins and who loses is complicated and doesn't really fit with a nice, clean ideological story.

Kevin Kosar:

Yes, when I talk about primaries with folks who are not political scientists or politics geeks, I like to remind them that in Ohio, my home state—a bellwether state—only 25% of voters are registered with either party. But Ohio has a system where if you're an Independent, you can vote in the primary. Nonetheless, last time around in the Senate primary, only about one in five voters bothered to show up because it's in the middle of the summertime and that's just not where your brain is at in the summer—to go out to the voting booth to go vote in a primary.

Andrew Hall:

This is why I'm pretty pessimistic on all of these reforms to primaries themselves. One of the things people have talked about is opening up primaries versus having them closed, which means, do you require party registration to vote in the primary or not? In theory, opening it up should allow a broader set of people to vote and nominate maybe a more moderate candidate. In practice, whenever we've looked at that empirically, nothing happens because you just don't move on the margin. You don't get any more people to turn out when you set the rules up one way or another because—in either case—there's a small set of people who care a lot and will show up no matter what, and a broader set of people who don't care enough or are not willing to pay the cost of figuring out how to vote in this primary. So it’s much harder than we think to break some of these links between being a more extreme, passionate person about politics and being the ones who are willing to do all the extra work that makes politics move.

Kevin Kosar:

And on your point about it being more complicated when thinking about primaries and why the results are as they are, we can't forget about the factor of money: the extent to which primaries have become places where dark money and various PACs—from out-of-state frequently, out-of-district—are just pouring resources in to stoke the image of one candidate and to trash the image of the other candidate. That's just advertising, that doesn't have anything to do with where people are at emotionally and how it aligns with ideology can be pretty messy. For example, there are some hard right dollars flowing into campaigns that are supporting folks who aren't necessarily hard right—they just happen to be the favorite of that interest group.

Andrew Hall:

Yeah. Actually, it's really interesting you brought that up, because we're pretty close to finishing—I think in the next month or two—a study of this issue of out-of-state money, so just to give you a few thoughts on what we've found. First of all, I think everyone who monitors this knows it's been going up and up over time, but one thing that I don't think has been fully appreciated is how much the pandemic seems to have shifted it even further. There's a massive acceleration in 2020, in the amount of money that's coming from out-of-state. This is not even dark money by the way. This is just standard FEC donations to candidates. Part of the reason we think that—we're finding in our study at least, of why—it's going up so much, is that changes to the media environment and especially the internet and online fundraising have made it much easier to raise money from out-of-state.

If you think about how that's changing elections, obviously the preferences of those out-of-state donors might be quite different. In addition, the way I'm always thinking about these things is in terms of who is then willing to run. If you know that these campaigns are going to be driven by the types of people who can get onto cable news or run online ads that get them out-of-state money, then you might think it's going to affect who's willing to run in the first place. Maybe—as a centrist person—I know in advance that I’m not the type of person who's easily going to be able to raise that out-of-state money because I don't excite the out-of-state donors as much. I don't have a national leading profile. That could be an important part of this phenomenon.

Kevin Kosar:

Excellent, I look forward to seeing that research.

So it's time for the big reveal. Partisan polarization in Congress. If the public is not the overwhelming cause, if the parties and their selection of candidates are not the main cause, and if primaries are not the big factor, then what does your research indicate?

Andrew Hall:

My research is about how the whole package that we've built—in terms of how Congress works and how our elections work—is not set up to make the job of being in Congress appealing to the vast majority of people, including most centrist, more pragmatic types of people.

There's a lot of reasons for this, but some of the main factors I would point to are on the congressional side: the fact that Congress has been systematically shifting over the last few decades in a way that gives more and more energy and the power to drive legislation forward to a pretty small set of party leader actors and taking that away from members of Congress at large. You see this also in the declining resources given to the committee system in Congress, for example. These are all things that make it less appealing to be an average member of Congress if you're a centrist who cares about getting things done, because your individual impact on the legislative process is significantly less than it used to be. That's one factor, looking ahead to what your job's going to be like in Congress and sensing you don't have the same opportunities to drive forward policy that you used to. You might solve some, but not as many.

The second, which is related, is that there's this sense that it's not a job that is held in as high esteem as it used to, for a variety of reasons. Interestingly—a lot of people don't believe me when I tell them this, but—it's not a job that pays as well as it used to either. That's in large part because Congress is responsible for setting its own salary, and it's incredibly unpopular for members of Congress to vote to raise their salaries, so it doesn't keep up with inflation. In real terms, members of Congress’ salaries have declined quite a lot since the 1960s.

I am not saying that I think current members of Congress should get paid more, but I am saying that a system where they have fewer opportunities to impact the policy process, their job is held in lower esteem, and they're not paid as well as they used to, is a system that's not going to attract a lot of very practical, pragmatic centrist people who might have other job opportunities where they feel like they can have a bigger impact. At the same time that those shifts have occurred, we've also made running for Congress harder than it used to be. In terms of the relentless expectations, particularly of calling people up and asking them for money—which is not a job most people like—as well as some of the kind of more tabloid media coverage, which is risen as a phenomenon in the last 30 or 40 years.

When you put this all together, my argument is that it's not a job very many people want. Indeed, when you ask most people if they want to be in Congress, they say no. So, when you've built this system where it's very, very hard and unpleasant to run for office, and what you can do when you're in office has attenuated a lot, then you have to ask yourself, "Well, who's going to want to run?", when that's the deal that we're presenting people. It turns out—and we have lots of data to support this—that the people who stand up and say they want to run, are quite ideologically extreme and are quite unrepresentative of society at large. So, I think if you want to understand why Congress is polarizing so much over time, the fact that the people running are just a lot more extreme than they used to be and they're quite unrepresentative of voters is a critical element you have to look at.

Kevin Kosar:

Well, that sounds plausible, and that might explain the fact that it seems that there are so many show horses as opposed to work horses in Congress today—the number of members who show up on Capitol Hill and decide that they want to spend a significant amount of their time on social media, doing podcasts, doing video conversations on various niche internet channels, etc. when you would think that they might be busy studying public policy, engaging in oversight activities, etc. I could see a connection there. That's not really what they're signing up to do, which is to govern. They're signing up to preach ideology. So what do we do about it? As a closing question for the listeners, is there any...]]>a32c8f51-0b83-4171-b6d0-12a04da782dfMon, 07 Nov 2022 06:00:00 -050026:16falsefull2828Are Members of the House of Representatives Legislating in the Dark? (with James M. Curry)The topic of this episode is, “Are members of the House of Representatives legislating in the dark?”

My guest is James Curry. He's an Associate Professor and the Director of Graduate Studies in the Department of Political Science at the University of Utah. Professor Curry studies how contemporary legislative processes and institutions affect legislative politics, with a particular focus on the role of parties and leaders in the US Congress. Importantly for this episode, Jim is the author of the book Legislating in the Dark: Information and Power in the House of Representatives (Chicago University Press, 2015). So who better to help us understand the relationship between information and power in Congress?

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our Republic. It's a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation.

I'm your host, Kevin Kosar. And I'm a resident scholar at the American Enterprise Institute, a think tank in Washington, DC.

Welcome to the podcast.

James Curry:

Thanks for having me.

Kevin Kosar:

Power in the House of Representatives: it flows from various factors. For example, being in a power position like the Speakership, or take another example, being a great fundraiser. These things can bring power, but these aren't the only factors. Possessing information also conveys power. How so?

James Curry:

So what I've found in my research is that knowledge or the possession of useful information empowers members of Congress for at least two reasons.

First, Congress needs to be able to write laws that achieve the ends that they want to achieve. Congress obviously has staff to help with this process, but it also helps members of Congress to know the ins and outs of policy and the political dynamics at play. It helps the members to know these things themselves. And if, as a member of Congress, you have this kind of knowledge, you're more likely to be looped into the process of developing a bill. If you're recognized as an expert in a policy space, you're also more likely to end up with a seat on a relevant committee that oversees these policies. So altogether, knowledge, expertise, and information can get you—as a member of a Congress—a seat at the table shaping policies early in the process.

Second, Congress also needs to be able to build coalitions to pass the things that it has written. Again, knowledge and expertise are going to be necessary and are going to empower those who have it. Most members of Congress don't have the time to become deeply informed and knowledgeable about more than a couple of policy areas. In other words, lawmakers tend to specialize—following certain policies really closely, working in those policy areas over and over again, but remaining relatively uninformed about most everything else. However, they still need to vote on everything else, which means they need to learn enough about what's happening on these other bills in these other policy areas so that they can vote the way that they think they should vote. So, what most members do is they turn to their colleagues who are seen as knowledgeable, who have information, who are seen as experts, and follow their lead on what they should do on these bills.

So combined, this means that lawmakers who have knowledge, information, and expertise about a policy are going to—first—be more involved in developing relevant legislation and are—second—going to be able to sway the votes of their colleagues to support that legislation. On a grand scale, this means that lawmakers with more knowledge and information are going to have more power. And, as it turns out, these are often the same people who hold other institutional power positions like party leaders and committee chairs. These folks are typically not only well versed in a subset of policy issues, but they also have large staffs at their disposals to provide them with additional expertise. This enables their involvement in policy-making at high levels and gives them greater sway over their colleagues’ votes in trying to get them to support or oppose whatever is being considered on the floor that day.

Kevin Kosar:

That makes perfect sense, and it comports with something I was looking at not too long ago—House rules—and it was impressive to me just how complex the rules of the chamber are. And upon seeing them, it brought to mind the old quip from John Dingell, who was in Congress for a very long time—a powerful member from Michigan—who said that "If you write the bill, but let me write the rules, I'll screw you every time." By virtue of knowledge of procedure, he could get things done and get them done to his liking that other people could not.

Now, 50 years ago, Congress beefed up its core of legislative branch support agencies. This was a direct response to the “imperial presidency,” where presidents had tons of agencies to draw upon, tons of experts to draw upon, and the presidency was being viewed by Congress as having gotten too big for its britches—it was pushing the First Branch around. So Congress did a whole lot of stuff 50 years ago, including creating the Congressional Budget Office (CBO) and turning the Legislative Reference Service into the Congressional Research Service (CRS)—a full-blown think tank—amongst other actions. Yet here we are 50 years later and—by your assessment—these entities have not been enough. Why is that?

James Curry:

I guess the important questions are for whom are they not enough and for what are they not enough, because these are really important entities for Congress. They provide the institution as a whole with a ton of expertise, with a lot of resources at its disposal that it can and does use to learn about policies, dig into details, develop ideas, and figure out where they're going to go in the long term. I think they also helped Congress push back against an executive branch that is just rife with knowledge, expertise, and resources.

However, what CRS and the CBO cannot do is help lawmakers in the moment when they have to decide on whether or not to support a bill. CRS and the CBO are not built to provide each member with rapid responses to specific questions about a bill that's on the floor in that moment. Often, CRS cannot finish studying a proposal and its implications before it passes. Ideally, CBO provides a fiscal score to a bill before it's considered, but that doesn't always happen either, depending on the speed at which the lawmaking process is going. So, these resources are important, but they can't help bridge the gap between what the rank and file know about what's going on and what party leaders know about what's going on. It doesn't change that gap that exists between the lawmakers who are in the know, who have plenty of resources and expertise at their disposal—including CBO and CRS when it's developing legislation—and what the rest of the membership knows when it's now asked to decide whether or not to support or oppose this thing.

Kevin Kosar:

It sounds like part of what's happened is that there has been a loss of what we call regular order by which a bill gets introduced and goes to committee and maybe subcommittee, then follows a deliberate process, and then eventually gets put on the calendar. Frequently what we see today is something that looks a lot different—what Barbara Sinclair called Unorthodox Lawmaking. And one feature that you flag in your book is the omnibus bill as contributing to this information and power asymmetry situation.

James Curry:

Yeah, we’ve recently seen more and more laws being passed in these large, thousands of pages-long omnibus bills that start out as something that's focused on maybe one specific major policy debate, but get expanded to include—and have attached to it—all sorts of other things that Congress has been working on. The challenge for a typical member of Congress is getting this massive bill—usually not long before it's going to be voted on in its final form—and having to figure out what to do. Beyond this, these omnibus bills are more often getting negotiated behind the scenes—negotiations among top party leaders and maybe some top committee chairs who are brought into the fold—in which they figure out what can and can't be done, what is going to be included, and what's going to be excluded from this bill so that leaders on both sides of the aisle can agree to pass this thing.

But then it's brought back to the rank and file and presented to them by leaders who were the only people in the rooms where the negotiations were happening. They're the only people who can say with any credibility, “Oh, well, this is the only deal we could get, this is the best deal we...]]>The topic of this episode is, “Are members of the House of Representatives legislating in the dark?”

My guest is James Curry. He's an Associate Professor and the Director of Graduate Studies in the Department of Political Science at the University of Utah. Professor Curry studies how contemporary legislative processes and institutions affect legislative politics, with a particular focus on the role of parties and leaders in the US Congress. Importantly for this episode, Jim is the author of the book Legislating in the Dark: Information and Power in the House of Representatives (Chicago University Press, 2015). So who better to help us understand the relationship between information and power in Congress?

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our Republic. It's a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation.

I'm your host, Kevin Kosar. And I'm a resident scholar at the American Enterprise Institute, a think tank in Washington, DC.

Welcome to the podcast.

James Curry:

Thanks for having me.

Kevin Kosar:

Power in the House of Representatives: it flows from various factors. For example, being in a power position like the Speakership, or take another example, being a great fundraiser. These things can bring power, but these aren't the only factors. Possessing information also conveys power. How so?

James Curry:

So what I've found in my research is that knowledge or the possession of useful information empowers members of Congress for at least two reasons.

First, Congress needs to be able to write laws that achieve the ends that they want to achieve. Congress obviously has staff to help with this process, but it also helps members of Congress to know the ins and outs of policy and the political dynamics at play. It helps the members to know these things themselves. And if, as a member of Congress, you have this kind of knowledge, you're more likely to be looped into the process of developing a bill. If you're recognized as an expert in a policy space, you're also more likely to end up with a seat on a relevant committee that oversees these policies. So altogether, knowledge, expertise, and information can get you—as a member of a Congress—a seat at the table shaping policies early in the process.

Second, Congress also needs to be able to build coalitions to pass the things that it has written. Again, knowledge and expertise are going to be necessary and are going to empower those who have it. Most members of Congress don't have the time to become deeply informed and knowledgeable about more than a couple of policy areas. In other words, lawmakers tend to specialize—following certain policies really closely, working in those policy areas over and over again, but remaining relatively uninformed about most everything else. However, they still need to vote on everything else, which means they need to learn enough about what's happening on these other bills in these other policy areas so that they can vote the way that they think they should vote. So, what most members do is they turn to their colleagues who are seen as knowledgeable, who have information, who are seen as experts, and follow their lead on what they should do on these bills.

So combined, this means that lawmakers who have knowledge, information, and expertise about a policy are going to—first—be more involved in developing relevant legislation and are—second—going to be able to sway the votes of their colleagues to support that legislation. On a grand scale, this means that lawmakers with more knowledge and information are going to have more power. And, as it turns out, these are often the same people who hold other institutional power positions like party leaders and committee chairs. These folks are typically not only well versed in a subset of policy issues, but they also have large staffs at their disposals to provide them with additional expertise. This enables their involvement in policy-making at high levels and gives them greater sway over their colleagues’ votes in trying to get them to support or oppose whatever is being considered on the floor that day.

Kevin Kosar:

That makes perfect sense, and it comports with something I was looking at not too long ago—House rules—and it was impressive to me just how complex the rules of the chamber are. And upon seeing them, it brought to mind the old quip from John Dingell, who was in Congress for a very long time—a powerful member from Michigan—who said that "If you write the bill, but let me write the rules, I'll screw you every time." By virtue of knowledge of procedure, he could get things done and get them done to his liking that other people could not.

Now, 50 years ago, Congress beefed up its core of legislative branch support agencies. This was a direct response to the “imperial presidency,” where presidents had tons of agencies to draw upon, tons of experts to draw upon, and the presidency was being viewed by Congress as having gotten too big for its britches—it was pushing the First Branch around. So Congress did a whole lot of stuff 50 years ago, including creating the Congressional Budget Office (CBO) and turning the Legislative Reference Service into the Congressional Research Service (CRS)—a full-blown think tank—amongst other actions. Yet here we are 50 years later and—by your assessment—these entities have not been enough. Why is that?

James Curry:

I guess the important questions are for whom are they not enough and for what are they not enough, because these are really important entities for Congress. They provide the institution as a whole with a ton of expertise, with a lot of resources at its disposal that it can and does use to learn about policies, dig into details, develop ideas, and figure out where they're going to go in the long term. I think they also helped Congress push back against an executive branch that is just rife with knowledge, expertise, and resources.

However, what CRS and the CBO cannot do is help lawmakers in the moment when they have to decide on whether or not to support a bill. CRS and the CBO are not built to provide each member with rapid responses to specific questions about a bill that's on the floor in that moment. Often, CRS cannot finish studying a proposal and its implications before it passes. Ideally, CBO provides a fiscal score to a bill before it's considered, but that doesn't always happen either, depending on the speed at which the lawmaking process is going. So, these resources are important, but they can't help bridge the gap between what the rank and file know about what's going on and what party leaders know about what's going on. It doesn't change that gap that exists between the lawmakers who are in the know, who have plenty of resources and expertise at their disposal—including CBO and CRS when it's developing legislation—and what the rest of the membership knows when it's now asked to decide whether or not to support or oppose this thing.

Kevin Kosar:

It sounds like part of what's happened is that there has been a loss of what we call regular order by which a bill gets introduced and goes to committee and maybe subcommittee, then follows a deliberate process, and then eventually gets put on the calendar. Frequently what we see today is something that looks a lot different—what Barbara Sinclair called Unorthodox Lawmaking. And one feature that you flag in your book is the omnibus bill as contributing to this information and power asymmetry situation.

James Curry:

Yeah, we’ve recently seen more and more laws being passed in these large, thousands of pages-long omnibus bills that start out as something that's focused on maybe one specific major policy debate, but get expanded to include—and have attached to it—all sorts of other things that Congress has been working on. The challenge for a typical member of Congress is getting this massive bill—usually not long before it's going to be voted on in its final form—and having to figure out what to do. Beyond this, these omnibus bills are more often getting negotiated behind the scenes—negotiations among top party leaders and maybe some top committee chairs who are brought into the fold—in which they figure out what can and can't be done, what is going to be included, and what's going to be excluded from this bill so that leaders on both sides of the aisle can agree to pass this thing.

But then it's brought back to the rank and file and presented to them by leaders who were the only people in the rooms where the negotiations were happening. They're the only people who can say with any credibility, “Oh, well, this is the only deal we could get, this is the best deal we could get for our side of the aisle. This is what was on the table and what wasn't,” and so on, and then present it to them in the short term as a take it or leave it proposition. This all makes it really hard if you're a typical member of Congress who wasn't involved in the negotiations and didn't get to see the final package until the last minute to make an independent decision about whether or not you think this is a good idea for your district or your state. It means you're more likely than not to support it because it probably has some stuff in there that they can sell you on, even if you didn't really get to dig into every aspect of it.

Kevin Kosar:

And, if it's an appropriations omnibus and there's the possibility of a government shutdown if you don't vote for it, you face all the more pressure.

James Curry:

That's right, and this is typically where a lot of these omnibus bills originate. They usually originate with the effort that Congress goes through in the fall and winter to keep the government open—pass these 12 appropriations bills as one large package, or they're connected to other things like the Annual Defense Reauthorization, which has to happen. Or, if you go back to the winter of 2020, a lot of this stuff was connected with much-needed COVID relief that was being negotiated over in late December of 2020. So you're opposing something that everybody wants—at your peril—but attached to it are all sorts of things that you probably didn't have a lot of time to think through in a lot of detail.

Kevin Kosar:

Well, earlier you noted that frequently, the people who are in the power positions in Congress are also the people who are particularly expert or have information that your average member does not have. That could be just a coincidence, but it's more than that because chamber leaders—we have evidence—actively withhold and try to control information, which sounds a little nefarious. Why do they do that?

James Curry:

They do it in large part because it helps them get something done. Congress today is operating in an incredibly difficult political environment. We have a really intense two-party conflict, a lot of really strong feelings on both sides of the aisle. We have a constant desire to have a public presence and public position-taking on issues, which members of Congress do to an unprecedented degree on social media and other places of taking really strong stances.

Well, say you're now a congressional leader, and you have to try to strike bipartisan deals to get things done since most things still have to build bipartisan support to actually get done. A good way to do that is to try to take control of the process and try to withhold information about the details of what's being negotiated until the last minute because any leaks about “This was being considered,” or, “This was taken off the table,” could cause hardcore partisans on each side to just explode in fury, oppose the whole thing, and bring the whole thing down.

This is why leaders often move all this decision-making behind the scenes, why they shut down what used to be really open amending or free-wheeling debate and amendment in committees and on the floor. From the perspective of party leaders, these processes—good as they were for enabling deliberation in Congress in a different era—have just become tools for opponents to embarrass the majority, gum up the works, and try to tear legislation down instead of building it up. Whether or not that's 100% accurate, that's the thought process of leaders. They do this so they can try to get things done, but it has the consequence of moving a lot of the deliberations that actually happen in Congress behind the scenes and really centralizing the core of those deliberations in a small number of key lawmakers.

Kevin Kosar:

So how do leaders withhold that information? Is it just by virtue of the fact that they got the bill and they've got the final draft until the last second—“Here it is. Take it or leave it.” The person obviously is not going to have an opportunity to read the bill as we expect all legislators to do. Is that basically their main move for withholding information or are there other ways that they engage in that?

James Curry:

It's the main move, but they can also do things like changing the legislation at the last minute.

You'll see this a lot in the Senate these days where—procedurally—it can take so long to move something through the Senate floor that Chuck Schumer or whoever the majority leader is at the time will put the legislation on the floor and start the debate while he's still negotiating the final details of it behind the scenes with key senators who are withholding their votes. These days, that's primarily Joe Manchin and Kyrsten Sinema. Then, after several days of debate, he announces that there's a substitute amendment that they'll be bringing up and voting on really quickly, very shortly after which they'll be voting on final passage as well. So for the rest of the senators who weren't involved in these core negotiations between perhaps Schumer, Manchin, Sinema, and maybe one or two other lawmakers, they're sort of left without a whole lot of time to really process the changes that were made.

From a procedural standpoint, offering a substitute amendment to a bill doesn't necessarily make it super easy to track what changed and what didn't, because they don't have the changes lined out and replaced (e.g., we cut this paragraph and replaced it with this paragraph). It's just, “Here was an old 2000-page bill and now here's a new 2000-page bill, and we'll tell you what changed and why you should support it.”

Kevin Kosar:

Yeah. That is a common gripe amongst newer legislators, particularly in the House, “Why can't we see tracked changes? Because it makes it really hard for us to do our job.” And the answer is, well it's perhaps not in the interest of those in charge that you can track changes.

James Curry:

Perhaps by design.

Kevin Kosar:

Yes. To build on your point, one thing I've also noticed is that you were speaking about the Senate. But in the House, the Rules Committee will often write a rule that might encompass more than one piece of legislation and deem that if you vote for the rule, both these pieces of legislation or considered enacted by the House.

James Curry:

Yes.

Kevin Kosar:

And you as a legislator are looking at a very short rule that is just making reference to some larger piece of legislation and they're bundling things together. So that also adds to the take it or leave it because you can't just pick what you don't like and vote against it.

James Curry:

That's right. These self-executing rules change the underlying legislation upon adoption of the rule or deem other things passed or other things amended, and it can be hard to follow if you're just in a typical member's office because there's a lot going on. These rules keep getting longer and longer if you read them and then they'll reference a very long Rules Committee report that includes more information. It's not just a simple one-paragraph special rule that you might have seen a couple of decades ago. It's a lot to follow, especially if you're a new member of Congress and you have new staff who haven't been doing this for years. It's easy to get caught off guard and not be able to easily follow everything that's going on, which puts the people running the show in the driver's seat.

Kevin Kosar:

It sounds as if two cherished values that we have for Congress, number one, is that it gets stuff done—call it partisan efficiency if you like. You're the majority, pass the bills. Another value they should be deliberating seems like intention. And question one might ask is, well, what's the downside of having legislators in the dark if they're moving the bills along? At least Congress is getting stuff done, right?

James Curry:

Yeah, there is that upside. This does help Congress get things done in an era where it's really hard—for the two sides to come to agreements. But I think the downside is clear—you have a large number of members who have a harder time having their voices heard in the deliberative process. This is bad if you want representative deliberations on everything that passes. You may hold the ideal, “This is supposed to be a Congress with one representative from every corner of the country and two senators from every state who can weigh in, and make sure that if something passes, it has broad consent from across the country.” If not everyone has an equal opportunity to weigh in, then by definition, you're not building that broad-based, representative support that the Founders wanted out of this system.

And it's not that it's impossible for junior or rank and file members to get their voices heard or to insert themselves in the process. It's just really hard compared to the old days and under regular order for a junior member of Congress to offer an amendment in committee or offer an amendment on the floor, or at least voice what they would like to see change or at least voice their concerns.

These days, if you want to get something changed in a bill, you have to find a way to get the attention of your leaders who are involved in these behind-the-scenes negotiations and build a coalition of like-minded legislators—all of whom are willing to withhold their votes on the final package in the...]]>8aec7db0-b1f2-442d-bc08-a6581f752737Mon, 03 Oct 2022 06:00:00 -050021:14falsefull2727Who Was the Meanest Man in Congress? (with Timothy J. McNulty)The topic of this episode is, “Who was the meanest man in Congress?”

My guest is Timothy J. McNulty, who taught journalism at Northwestern University and spent more than thirty years at the Chicago Tribune. During his years as a journalist, Tim was a national and foreign correspondent, and also an editor. He logged untold hours paying attention to Congress and its many characters. And importantly for the purposes of this episode of the podcast, he is the coauthor of a terrific book, The Meanest Man in Congress: Jack Brooks and the Making of an American Century (NewSouth Books, 2019).

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation.

I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington, DC.

Welcome to the podcast.

Timothy McNulty:

Thanks very much for having me.

Kevin Kosar:

Thank you for being here.

Jack Brooks served in Congress from 1952 to 1994. He was called a number of names: the snake killer, the executioner, and the meanest man in Congress. Why?

Timothy McNulty:

Well, each one had a very set reason in Congress. “The snake killer” was him using an old Texas term when he went after President Ford's early budget. He said to reporters then, “Well, the best time to kill a snake is when it's young.” So that's what Ford did. “The executioner” is what Nixon told some of his aides, because Brooks had been really a driving force in the Judiciary Committee. Peter Rodino was the head of it, but he was taking it very slow, and Brooks wanted to speed things up. So that's what bothered Nixon. And then “the meanest man” was something that Brooks had a great deal of pride in, because his questioning on the Government Affairs Subcommittee struck fear into a lot of bureaucrats and corporate leaders who were called to testify, because he didn't blanch at any kind of power or anything else, whether it was Marine Corps generals or heads of General Motors or government department heads. He just went after them. So he got that “meanest man” title and wore it proudly.

Kevin Kosar:

Yes, yes. Brooks himself, as you detail in your book, was a Marine, and he was in World War II. He saw many intense things and he endured a lot, both in his upbringing and before he got to Congress. But the listener might be wondering: if Brooks was so mean, how come voters reelected him every two years for four decades?

Timothy McNulty:

Well, of course, he looked after his district. No matter what other public pronouncements or other publicity he got, he was never that interested in being anything other than a congressman. And people recognized that. He of course brought home a lot of government money, especially for infrastructure down in Southeast Texas. But he also had his staff be very aware of constituent concerns, whether it was someone who's a mother who wanted her son to be able to come home because of an operation that she was having— He took care of things and made sure that his staff answered every letter, every message. And that's why I think— He also was a populist. This is in a very different era that you alluded to: a populist, a Democrat, in Texas! That was something that was seen as a great achievement: to be that strong and to have both conservative ideas and also very advanced or progressive ideas. He also was able to kind of meld his constituency. It was business leaders, but it was also union leaders. That was important in Southeast Texas, there on the border with Louisiana. So [he had a] fairly unique ability to get together members of the community, no matter what their title or station.

Kevin Kosar:

Yes. You mentioned his knowledge of his district. One of the particularly interesting aspects of his district is that it was in Texas, but it had a significant number of Black citizens in it.

Timothy McNulty:

Yeah.

Kevin Kosar:

And Brooks, unlike so many other Southern representatives, was progressive on racial issues and had a big role in pushing forward civil rights acts. Is that right?

Timothy McNulty:

That's the Civil Rights Act of 1964 and others. He was very definite about that. He made sure that the Black citizens in his district were equally represented, and he refused to sign on to any pronouncements from other Southern Democrats who were for segregation. He was one of the few that refused to sign those kind of pronouncements. His district was one that encompassed everything from a town where Blacks were not welcome after dark to union leaders in Louisiana and in Southeast Texas and Beaumont, where they were in charge of a lot of the companies and the unions. So he was able to kind of meld all these different groups together by their self-interest.

Kevin Kosar:

Yes, yes. It's a remarkable thing, considering how intense the backlash towards desegregation was, to be able to keep that balance and fend off any primary challengers who might go after him. That was quite something.

Timothy McNulty:

He learned a lot in the Marines. He learned a lot in his first decade as a congressman. He was also in the Texas state legislature. Sam Rayburn was a mentor, and Rayburn talked about [how] the first ten years in Congress, you're kind of learning how things work. Then after that you become effective. And Brooks paid attention to his mentor. He also was a friend on the Senate side of Lyndon Johnson, and Johnson also as president. They were very close. So he kind of put together things from his life, both in the Marines and the state legislature, and then in his early days in Congress, to become very effective. And it was also, by the way, across the aisle. It wasn't as if they were saying, “I'm only going to work on Democratic issues.” He had strong friends on both sides. For instance, Bob Dole one time was meeting with the Democratic leaders in the Senate and the House. And they made an agreement—which is the art of compromise that Congress is lacking now—but they made an agreement, and Dole had told the Democratic leaders that he wanted it in writing. And they asked, “Well, you want a letter from Brooks?” And Dole said, “No, I don't need it from Brooks. His word is good.” So that's the way he was considered on the Hill.

Kevin Kosar:

Yeah. That gets to an interesting insight that your book offers on how to be an effective politician. One thing, certainly, that Brooks had was doggedness. The book relates the story of how he wanted, back when he was a state legislator, a community college to become a full-blown university. He had to fight and fight and bargain, and the bill died at least one time, if not more. And he kept at it until he got it done.

Another thing that he seemed to really get was that, yes, politics is about principles, but it is about people, trust, and wants. In his career in the military, you describe how Brooks positioned himself as a guy who was able to procure things that were wanted—like boots or whiskey or socks—and was able to build support amongst those he served with. Is that right?

Timothy McNulty:

Absolutely. He learned that you appeal to people on what they need. So whether it was—as you said, one time, he traded things that another unit might have needed for fifty pairs of boots that his company needed. Or, a shipment of whiskey came in on a ship, not identified as whiskey, but he was able to figure out how to get that on land and on the islands in the South Pacific, and made good use of it. And it wasn't for himself. He was doing it and learning how to manage things for people's own self-interests. Part of his appeal was that it wasn’t like he was eager to make money or to get higher office. He was able to just say, “Here's what we need,” and figure out how to negotiate it. And the idea of compromise, he recognized—I think what Sam Rayburn and Lyndon Johnson also realized—that in order to be effective, you have to be willing to compromise.

Kevin Kosar:

That's right. Speaking of Rayburn, who was speaker of the House for a very long time, and Lyndon Johnson, who became majority leader in the Senate before vice president and president: Brooks spent time with them, which had the advantage of not only conferring some of their power upon him—the fact that these two fellow Texans would listen to Brooks about certain things—but also he learned process. That's another key aspect of being an effective legislator: figuring out how the wheels turn on Capitol Hill. Is that right?

Timothy McNulty:

Absolutely. He realized that when he was— For instance, there was a sign, as simple a thing as a sign on a reservoir in Texas, and he wanted it named after Rayburn with Rayburn's full name. And]]>The topic of this episode is, “Who was the meanest man in Congress?”

My guest is Timothy J. McNulty, who taught journalism at Northwestern University and spent more than thirty years at the Chicago Tribune. During his years as a journalist, Tim was a national and foreign correspondent, and also an editor. He logged untold hours paying attention to Congress and its many characters. And importantly for the purposes of this episode of the podcast, he is the coauthor of a terrific book, The Meanest Man in Congress: Jack Brooks and the Making of an American Century (NewSouth Books, 2019).

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation.

I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington, DC.

Welcome to the podcast.

Timothy McNulty:

Thanks very much for having me.

Kevin Kosar:

Thank you for being here.

Jack Brooks served in Congress from 1952 to 1994. He was called a number of names: the snake killer, the executioner, and the meanest man in Congress. Why?

Timothy McNulty:

Well, each one had a very set reason in Congress. “The snake killer” was him using an old Texas term when he went after President Ford's early budget. He said to reporters then, “Well, the best time to kill a snake is when it's young.” So that's what Ford did. “The executioner” is what Nixon told some of his aides, because Brooks had been really a driving force in the Judiciary Committee. Peter Rodino was the head of it, but he was taking it very slow, and Brooks wanted to speed things up. So that's what bothered Nixon. And then “the meanest man” was something that Brooks had a great deal of pride in, because his questioning on the Government Affairs Subcommittee struck fear into a lot of bureaucrats and corporate leaders who were called to testify, because he didn't blanch at any kind of power or anything else, whether it was Marine Corps generals or heads of General Motors or government department heads. He just went after them. So he got that “meanest man” title and wore it proudly.

Kevin Kosar:

Yes, yes. Brooks himself, as you detail in your book, was a Marine, and he was in World War II. He saw many intense things and he endured a lot, both in his upbringing and before he got to Congress. But the listener might be wondering: if Brooks was so mean, how come voters reelected him every two years for four decades?

Timothy McNulty:

Well, of course, he looked after his district. No matter what other public pronouncements or other publicity he got, he was never that interested in being anything other than a congressman. And people recognized that. He of course brought home a lot of government money, especially for infrastructure down in Southeast Texas. But he also had his staff be very aware of constituent concerns, whether it was someone who's a mother who wanted her son to be able to come home because of an operation that she was having— He took care of things and made sure that his staff answered every letter, every message. And that's why I think— He also was a populist. This is in a very different era that you alluded to: a populist, a Democrat, in Texas! That was something that was seen as a great achievement: to be that strong and to have both conservative ideas and also very advanced or progressive ideas. He also was able to kind of meld his constituency. It was business leaders, but it was also union leaders. That was important in Southeast Texas, there on the border with Louisiana. So [he had a] fairly unique ability to get together members of the community, no matter what their title or station.

Kevin Kosar:

Yes. You mentioned his knowledge of his district. One of the particularly interesting aspects of his district is that it was in Texas, but it had a significant number of Black citizens in it.

Timothy McNulty:

Yeah.

Kevin Kosar:

And Brooks, unlike so many other Southern representatives, was progressive on racial issues and had a big role in pushing forward civil rights acts. Is that right?

Timothy McNulty:

That's the Civil Rights Act of 1964 and others. He was very definite about that. He made sure that the Black citizens in his district were equally represented, and he refused to sign on to any pronouncements from other Southern Democrats who were for segregation. He was one of the few that refused to sign those kind of pronouncements. His district was one that encompassed everything from a town where Blacks were not welcome after dark to union leaders in Louisiana and in Southeast Texas and Beaumont, where they were in charge of a lot of the companies and the unions. So he was able to kind of meld all these different groups together by their self-interest.

Kevin Kosar:

Yes, yes. It's a remarkable thing, considering how intense the backlash towards desegregation was, to be able to keep that balance and fend off any primary challengers who might go after him. That was quite something.

Timothy McNulty:

He learned a lot in the Marines. He learned a lot in his first decade as a congressman. He was also in the Texas state legislature. Sam Rayburn was a mentor, and Rayburn talked about [how] the first ten years in Congress, you're kind of learning how things work. Then after that you become effective. And Brooks paid attention to his mentor. He also was a friend on the Senate side of Lyndon Johnson, and Johnson also as president. They were very close. So he kind of put together things from his life, both in the Marines and the state legislature, and then in his early days in Congress, to become very effective. And it was also, by the way, across the aisle. It wasn't as if they were saying, “I'm only going to work on Democratic issues.” He had strong friends on both sides. For instance, Bob Dole one time was meeting with the Democratic leaders in the Senate and the House. And they made an agreement—which is the art of compromise that Congress is lacking now—but they made an agreement, and Dole had told the Democratic leaders that he wanted it in writing. And they asked, “Well, you want a letter from Brooks?” And Dole said, “No, I don't need it from Brooks. His word is good.” So that's the way he was considered on the Hill.

Kevin Kosar:

Yeah. That gets to an interesting insight that your book offers on how to be an effective politician. One thing, certainly, that Brooks had was doggedness. The book relates the story of how he wanted, back when he was a state legislator, a community college to become a full-blown university. He had to fight and fight and bargain, and the bill died at least one time, if not more. And he kept at it until he got it done.

Another thing that he seemed to really get was that, yes, politics is about principles, but it is about people, trust, and wants. In his career in the military, you describe how Brooks positioned himself as a guy who was able to procure things that were wanted—like boots or whiskey or socks—and was able to build support amongst those he served with. Is that right?

Timothy McNulty:

Absolutely. He learned that you appeal to people on what they need. So whether it was—as you said, one time, he traded things that another unit might have needed for fifty pairs of boots that his company needed. Or, a shipment of whiskey came in on a ship, not identified as whiskey, but he was able to figure out how to get that on land and on the islands in the South Pacific, and made good use of it. And it wasn't for himself. He was doing it and learning how to manage things for people's own self-interests. Part of his appeal was that it wasn’t like he was eager to make money or to get higher office. He was able to just say, “Here's what we need,” and figure out how to negotiate it. And the idea of compromise, he recognized—I think what Sam Rayburn and Lyndon Johnson also realized—that in order to be effective, you have to be willing to compromise.

Kevin Kosar:

That's right. Speaking of Rayburn, who was speaker of the House for a very long time, and Lyndon Johnson, who became majority leader in the Senate before vice president and president: Brooks spent time with them, which had the advantage of not only conferring some of their power upon him—the fact that these two fellow Texans would listen to Brooks about certain things—but also he learned process. That's another key aspect of being an effective legislator: figuring out how the wheels turn on Capitol Hill. Is that right?

Timothy McNulty:

Absolutely. He realized that when he was— For instance, there was a sign, as simple a thing as a sign on a reservoir in Texas, and he wanted it named after Rayburn with Rayburn's full name. And they just said, “No, we can't do that. It's different than the rest of them.” And Brooks was able to say, “Here's what I'm going to do.” He detailed who he was going to talk to, what was going to happen, when they were going to send that bill to President Kennedy, when Kennedy was going to sign it and come back to Brooks. So he recognized that, and so did a lot of the other people who were bureaucrats or others that wanted to do things only one way. He recognized that the more you understood how Congress worked, the more effective you would be.

Some of his accomplishments were not flashy. They weren't Newt Gingrich trying to get up and get a name for himself, speaking to an empty House of Representatives just so that he could have some TV time. But Brooks was able to look at things and say, “What do people need?” So he went after things as mundane as lightbulbs. Lightbulbs are something that's so commonplace. Yet he realized at some point that the way they were made was to absolutely burn out quickly. So he went to the GE and said, “Here's what you could do. The technology is available.” He also did other infrastructure products like IBM and said, “Why are we leasing computers at this enormous cost? Why don't we buy them?” And so he did. The same thing with Westinghouse or with the Boeing and the FAA. Those kind of changes—whether it was airline safety or other products—he said, “Why don't we do it? It makes more sense for the government to be paying.”

That's why he was also feared: when people went up to his committee, then he would ask very blunt questions. One of the— Afterwards he told some of his staff, because they heard these heads of businesses saying, “Brooks, that S.O.B.,” and Brooks to his staff just smiled and he says, “Well, what they mean is Sweet Old Brooks.”

Kevin Kosar:

Yes, yes. The lightbulb incident was a good one. I'll give listeners a preview. Essentially, you had three or four firms that were making lightbulbs in the country at that time, and they created a planned obsolescence. Bulbs would only burn for 750 hours and then would go kaput. There was no reason that it had to be that way; it just encouraged more people to spend more money on lightbulbs. Brooks called them out on it, and they didn't have a defensible answer. By training that attention upon them—it was an element of just shaming them into improving their behavior.

My next question: Brooks had a long career, and he did an enormous amount during that time on Capitol Hill. In your estimate, what were his greatest legislative achievements, if you could just pick a couple?

Timothy McNulty:

Well, I think his involvement with the Civil Rights Act, as I mentioned before, that certainly was something that he would be very proud of. Not signing the Southern Manifesto that would encourage segregation—that took courage, and he had that. Like I said, [he was involved with] large-scale infrastructure projects in Beaumont and elsewhere in Southeastern Texas. He also was the one vote that allowed the International Space Station to continue. It came down to one single vote, and Brooks casted to continue the space station.

He also had some controversy when he was on the Judiciary Committee and ultimately became chairman of it. During the Nixon hearings, he told his fellow legislators that the only decision that they really had to make with Nixon was whether to shoot him or hang him. There was another time when he was talking to people in his district. In the Marine Corps, his last station was in China, because they were going to invade Japan, and they knew there were going to be enormous casualties. So he was very much for the dropping of the atomic bombs on Hiroshima and Nagasaki. During this one press conference, he said, “Truman should have dropped three bombs.” It was controversial. There was a TV crew, but they had just turned off the camera, to his aides' great relief. But he was insistent: he said it saved tens of thousands of American lives and he was for it.

So he didn't shy from controversy. When Oliver North testified— Now, Oliver North had become symbolic of rectitude, and he was being questioned and all that by other members of the committee. Then, when it came time for Brooks's question, he laid into him. He also had been a Marine colonel, and he wasn't going to take any guff or false modesty. So he laid into North. It was not until then that it turned—that a lot of the other members of Congress began to question whether North was actually as patriotic as he wanted to paint himself.

Kevin Kosar:

Yes. Brooks was remarkable in so many ways. As we noted earlier, he was a guy who very much believed in delivering tangible benefits to his voters and to the American public generally. But that doesn't mean he was a big-spending liberal. In fact, much of his career he spent acting as a watchdog over government spending. That is unusual today. We too often hear conversations where a member is described as a liberal, and they just don't care about waste, fraud, and abuse, or they're a tightwad legislator who doesn’t want to spend anything on the war or anything. Brooks showed that you could do both, and you could do them well.

I want to circle back for my last question on the issue of Brooks’s meanness within Congress. Clearly, he was well liked, both by voters and many other members. He was also feared, particularly by people in the executive branch who ended up in his crosshairs. Was his meanness different from the type of meanness that we see in Congress today?

Timothy McNulty:

Yeah. When we were trying to decide on the title and subtitle of the book, it was a question that we had to address. When we think of meanness today, it's very personal—again, Newt Gingrich kind of attacks on people. Another word that we questioned whether we should use: the toughest man in Congress, because that was really his reputation. Even though they called him the meanest man, the intention was to say, he is not going to take guff from anybody, and he will question people. He will make sure that other legislators are held to account. So it’s a different kind of context that people use the word now.

Kevin Kosar:

Yes, his meanness seemed to be closely related to the issue of government accountability, not as a gratuitous vehicle for raising one's own brand. Interestingly enough, and I shall close with this, as a legislator, he frequently did not try to draw media attention. Rather, he kept stuff that he was working on low-salience until he felt that he needed some outside attention that would perhaps help him get something over the line.

Timothy McNulty:

Yep. You're absolutely right. That's exactly a good way of describing it.

Kevin Kosar:

Timothy J. McNulty, thank you for telling us about the meanest man in Congress, who is also one of the most consequential legislators in our republic's history.

Timothy McNulty:

Thank you very much.

Kevin Kosar:

Thank you for listening to Understanding Congress, a podcast of the American Enterprise Institute. This program was produced by Mikael Good and hosted by Kevin Kosar. You can subscribe to Understanding Congress via Stitcher, iTunes, Google Podcasts, and TuneIn. We hope you will share this podcast with others, and tell us what you think about it by posting your thoughts and questions on Twitter and tagging @AEI. We hope you have a great day.

My guest is Alissa Ardito, the author of the book Machiavelli and the Modern State: The Prince, the Discourses on Livy, and the Extended Territorial Republic (Cambridge University Press, 2015). She has had a rich and varied career in governance, and she has thought deeply about legislatures and policymaking. Dr. Ardito has served as a general counsel at the Congressional Budget Office, and as an attorney advisor with the Administrative Conference of the United States. She received a Ph.D. in political science from Yale University, a J.D. from the University of Virginia School of Law, and a B.A. from the University of Virginia—all of which makes her wise in the ways of statecraft.

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington, DC.

Welcome to the podcast.

Alissa Ardito:

Thank you, Kevin. It's great to be here.

Kevin Kosar:

Let's start our inquiry with the Constitution, the foundation for our system of national self-governance. What constitutional powers does Congress have over foreign affairs?

Alissa Ardito:

Well, actually, if you look at the text of the Constitution, Congress has quite a lot of power over foreign affairs. The issue is that they are littered in various different parts of Section 8 and Section 10 of Article 1. I'll just mention a few. Actually, the first is Clause 1 of Section [8], tax and spend—the “Power To lay and collect Taxes…pay the Debts, and provide for the common Defence.” Congress also has the power to regulate commerce with foreign nations; establish uniform rule of naturalization; define and punish piracies on the high seas; the great war power of Section 8, Clause 11, “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” And then it even moves in, arguably, to everything about raise and support armies, provide and maintain a navy, regulate and call forth the militia.

And then you get into—I think [it’s] fascinating—I would argue that Section 9, Clause 7, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law,” also constitutes a foreign affairs power. Then you get into all the limitations in Section 10 on states. The real concern was at the time of the Framing that they were exercising foreign relations independently. And then you can even move into Article 2 and the powers in the Senate, the treaty power and advise and consent on nominations as well. So, taken together, that's actually a pretty robust set of powers.

Kevin Kosar:

Yes, and these powers were, as you alluded to, scraped away from executive authority and scraped away from state authority and centered in the first branch: Congress. Now, Congress's authorities, we should probably also mention, go beyond those explicitly enumerated in the Constitution. Obviously there are a whole number of statutes that assign powers to Congress over foreign affairs, such as the War Powers Resolution, but additional legislative powers exist beyond that. For example, senators and members of the House can use their positions to raise the salience of issues, such as when Congress allows leaders of foreign nations to address it, or when legislators engage in legislative diplomacy and make trips abroad to meet with heads of state. There seems to be so much that Congress can do in foreign affairs. Is that right?

Alissa Ardito:

Yes, there actually is a lot that Congress can do. Even the statutes that allocate powers to Congress—they're implementing those broader textual powers in very specific ways to effectuate them. Even the War Powers Resolution, depending on one's views—one could argue it's unconstitutional, but I think the consensus is that they are. But, moving along, Congress has informal powers it can use. Again, it can pass resolutions—Senator Graham did one about the sale of certain jets to Ukraine. It can use ceremonial functions such as hosting dignitaries. Also, holding hearings are specific ways in which, through exercising oversight, Congress can be influential and can raise the salience of certain issues.

And I think, not to take too much of a contemporary example, but the various funding bills Congress has passed on a bipartisan basis on aid to Ukraine are examples of—I mean, it's a formal power in that it's grounded in the Constitution and the Appropriations Clause, but it also acts in a way to give Congress more influence as well as authority than you might otherwise think. It's not following in the wake of the president. It's actually taking the lead in many ways more recently, which is unusual.

Kevin Kosar:

Yes. I think there's often a habit to try to allow the executive to be the sole voice of policy in international affairs, but there is absolutely nothing to stop any single member of Congress or an entire political party to simply assert themselves on an issue. If you're a foreign head of state and you realize the president's saying one thing and members of Congress are saying another, that has impact. That has effect.

Now, let me move on to the next question. I want to go back to the Constitution. When the Founders bargained it out, they took away many traditional executive authorities over foreign policy from our executive and assigned it to Congress. Examples include the ability to independently raise funds, as you mentioned, and to make treaties. Why did they do this? This was in such distinction to the old practices of Europe, for example.

Alissa Ardito:

That's such a great question. They did this for a couple reasons. One way to think about it is, it looks as though they're pulling powers away from an executive. But you actually had examples of monarchs who, by accident of history, exercised what we think of as executive authority, but there's a historical background and then there's a functional reason. Many powers kings exercised based on prerogative were sometimes also legislative in nature. So, it gets really confusing because we're layering old ideas about mixed government, which go back to Polybius and ancient Rome, which divides the institutions of government based on class—are they representing the few, the many, [or] the one? Then around the time of the English Civil War, you get this functional separation—that it's not, “Who in society's being represented in this body?,” it's, “What's that institution doing?”

The fulcrum of this really is the framing of the Constitution, because they're heirs of both these ways of thinking. But back to initial ideas—they found that they had the benefit of, as Jack Rakove often points out, 10 years or more dealing with state constitutions. And the state constitutions really exemplified pulling away any authority from the executive. They were really focused on legislative government and disempowering the executive. They found that these constitutions didn't work. So they realized, no, we've got to reallocate things yet again and move back to giving our executives some power, but not too much. They decide to split it, which is the great innovation. It's starting from almost a tabula rasa and saying, “How can we allocate this power more effectively?”

What I find fascinating is, throughout the long summer, the Senate really was going to be the preserve of a lot of the foreign affairs powers, and was actually going to have the authority to negotiate treaties, as well as have a say in ratifying them. It was only towards the very end that they pulled some of that out and gave it to the executive, and then kept some in the Senate. Because we're so inured to thinking of—by nature and by, as Harvey Mansfield has said, the informal powers the president gets for a variety of reasons—we always think of it as pulling away. But in some ways, in the Framing, we got a pulling away of powers from the legislature in Congress over to the president, as a reaction against what they thought was some short-term thinking in the state constitutions.

More to what you were speaking to, some of the key—not just powers bestowed on Congress as well as the power to declare war and the Senate treaties—but also fundamental in the British experience were the Mutiny Acts that evolved after the Bill of Rights and the Acts of Settlement. But this was before the Act of Settlement. This was [1689], where Parliament every year starts to vote on the military and supplies to the military to prevent the king from supporting and maintaining a standing army during peacetime. So, the idea that the legislature—the will of the people—have a say in how much an army or military is funded, as well as other aspects of military governance—you can't have martial law during peace time, for example. These are bits and pieces of the British experience that are very influential when it comes to shaping these broad contours of powers between two institutions that they're thinking of.

Kevin Kosar:

Yeah. You mentioned the British experience. I'm reminded of the fact that in the Declaration of Independence, we have lines that reference bad American colonist experiences involving military imposed against them. They were supposed to be part of the empire, yet the executive is using military force against them. So, there's complaints about, the...]]>The topic of this episode is, “What role should Congress have in foreign affairs?”

My guest is Alissa Ardito, the author of the book Machiavelli and the Modern State: The Prince, the Discourses on Livy, and the Extended Territorial Republic (Cambridge University Press, 2015). She has had a rich and varied career in governance, and she has thought deeply about legislatures and policymaking. Dr. Ardito has served as a general counsel at the Congressional Budget Office, and as an attorney advisor with the Administrative Conference of the United States. She received a Ph.D. in political science from Yale University, a J.D. from the University of Virginia School of Law, and a B.A. from the University of Virginia—all of which makes her wise in the ways of statecraft.

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington, DC.

Welcome to the podcast.

Alissa Ardito:

Thank you, Kevin. It's great to be here.

Kevin Kosar:

Let's start our inquiry with the Constitution, the foundation for our system of national self-governance. What constitutional powers does Congress have over foreign affairs?

Alissa Ardito:

Well, actually, if you look at the text of the Constitution, Congress has quite a lot of power over foreign affairs. The issue is that they are littered in various different parts of Section 8 and Section 10 of Article 1. I'll just mention a few. Actually, the first is Clause 1 of Section [8], tax and spend—the “Power To lay and collect Taxes…pay the Debts, and provide for the common Defence.” Congress also has the power to regulate commerce with foreign nations; establish uniform rule of naturalization; define and punish piracies on the high seas; the great war power of Section 8, Clause 11, “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” And then it even moves in, arguably, to everything about raise and support armies, provide and maintain a navy, regulate and call forth the militia.

And then you get into—I think [it’s] fascinating—I would argue that Section 9, Clause 7, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law,” also constitutes a foreign affairs power. Then you get into all the limitations in Section 10 on states. The real concern was at the time of the Framing that they were exercising foreign relations independently. And then you can even move into Article 2 and the powers in the Senate, the treaty power and advise and consent on nominations as well. So, taken together, that's actually a pretty robust set of powers.

Kevin Kosar:

Yes, and these powers were, as you alluded to, scraped away from executive authority and scraped away from state authority and centered in the first branch: Congress. Now, Congress's authorities, we should probably also mention, go beyond those explicitly enumerated in the Constitution. Obviously there are a whole number of statutes that assign powers to Congress over foreign affairs, such as the War Powers Resolution, but additional legislative powers exist beyond that. For example, senators and members of the House can use their positions to raise the salience of issues, such as when Congress allows leaders of foreign nations to address it, or when legislators engage in legislative diplomacy and make trips abroad to meet with heads of state. There seems to be so much that Congress can do in foreign affairs. Is that right?

Alissa Ardito:

Yes, there actually is a lot that Congress can do. Even the statutes that allocate powers to Congress—they're implementing those broader textual powers in very specific ways to effectuate them. Even the War Powers Resolution, depending on one's views—one could argue it's unconstitutional, but I think the consensus is that they are. But, moving along, Congress has informal powers it can use. Again, it can pass resolutions—Senator Graham did one about the sale of certain jets to Ukraine. It can use ceremonial functions such as hosting dignitaries. Also, holding hearings are specific ways in which, through exercising oversight, Congress can be influential and can raise the salience of certain issues.

And I think, not to take too much of a contemporary example, but the various funding bills Congress has passed on a bipartisan basis on aid to Ukraine are examples of—I mean, it's a formal power in that it's grounded in the Constitution and the Appropriations Clause, but it also acts in a way to give Congress more influence as well as authority than you might otherwise think. It's not following in the wake of the president. It's actually taking the lead in many ways more recently, which is unusual.

Kevin Kosar:

Yes. I think there's often a habit to try to allow the executive to be the sole voice of policy in international affairs, but there is absolutely nothing to stop any single member of Congress or an entire political party to simply assert themselves on an issue. If you're a foreign head of state and you realize the president's saying one thing and members of Congress are saying another, that has impact. That has effect.

Now, let me move on to the next question. I want to go back to the Constitution. When the Founders bargained it out, they took away many traditional executive authorities over foreign policy from our executive and assigned it to Congress. Examples include the ability to independently raise funds, as you mentioned, and to make treaties. Why did they do this? This was in such distinction to the old practices of Europe, for example.

Alissa Ardito:

That's such a great question. They did this for a couple reasons. One way to think about it is, it looks as though they're pulling powers away from an executive. But you actually had examples of monarchs who, by accident of history, exercised what we think of as executive authority, but there's a historical background and then there's a functional reason. Many powers kings exercised based on prerogative were sometimes also legislative in nature. So, it gets really confusing because we're layering old ideas about mixed government, which go back to Polybius and ancient Rome, which divides the institutions of government based on class—are they representing the few, the many, [or] the one? Then around the time of the English Civil War, you get this functional separation—that it's not, “Who in society's being represented in this body?,” it's, “What's that institution doing?”

The fulcrum of this really is the framing of the Constitution, because they're heirs of both these ways of thinking. But back to initial ideas—they found that they had the benefit of, as Jack Rakove often points out, 10 years or more dealing with state constitutions. And the state constitutions really exemplified pulling away any authority from the executive. They were really focused on legislative government and disempowering the executive. They found that these constitutions didn't work. So they realized, no, we've got to reallocate things yet again and move back to giving our executives some power, but not too much. They decide to split it, which is the great innovation. It's starting from almost a tabula rasa and saying, “How can we allocate this power more effectively?”

What I find fascinating is, throughout the long summer, the Senate really was going to be the preserve of a lot of the foreign affairs powers, and was actually going to have the authority to negotiate treaties, as well as have a say in ratifying them. It was only towards the very end that they pulled some of that out and gave it to the executive, and then kept some in the Senate. Because we're so inured to thinking of—by nature and by, as Harvey Mansfield has said, the informal powers the president gets for a variety of reasons—we always think of it as pulling away. But in some ways, in the Framing, we got a pulling away of powers from the legislature in Congress over to the president, as a reaction against what they thought was some short-term thinking in the state constitutions.

More to what you were speaking to, some of the key—not just powers bestowed on Congress as well as the power to declare war and the Senate treaties—but also fundamental in the British experience were the Mutiny Acts that evolved after the Bill of Rights and the Acts of Settlement. But this was before the Act of Settlement. This was [1689], where Parliament every year starts to vote on the military and supplies to the military to prevent the king from supporting and maintaining a standing army during peacetime. So, the idea that the legislature—the will of the people—have a say in how much an army or military is funded, as well as other aspects of military governance—you can't have martial law during peace time, for example. These are bits and pieces of the British experience that are very influential when it comes to shaping these broad contours of powers between two institutions that they're thinking of.

Kevin Kosar:

Yeah. You mentioned the British experience. I'm reminded of the fact that in the Declaration of Independence, we have lines that reference bad American colonist experiences involving military imposed against them. They were supposed to be part of the empire, yet the executive is using military force against them. So, there's complaints about, the "King has affected to render the military independent of and superior to the civil power... the quartering of large bodies of armed troops among us... the cutting off of our trade with all parts of the world," et cetera. And you look at our Constitution, and you could see those specific gripes actually responded to and corrected in the text of the Constitution, because they didn't want to see a repeat of that movie.

Alissa Ardito:

Exactly. What's also interesting is that the British monarch's powers to wage war, to conduct war, conclude peace, as well as negotiate treaties, were all considered prerogative powers. Some people loosely use prerogative today with respect to the president. That's not necessarily historically accurate, because the prerogative, as Maitland or Dicey said, was an accumulation of powers, of accessory powers that adhered to the very person of the British monarchy. It was very feudal. And Wilson and Madison, when they start to think about, “Well, what really are we talking about when we're discussing the treaty power?” “It's a prerogative power.” “How does that help us?” they say, “Well, you know what, it's actually legislative,”—which is the influence of eighteenth-century Vattel, and the idea of international law. Well, that's a legislative power.

So that's why they then thought about putting this in the Senate, and the Senate still has its two thirds ratification power. So it's again this wonderful labyrinthine process, by the way, in which some of these powers slither about and move in and out of conversation and are transmitted across time. And then they end up specifically where they are in our Constitution, which I think of as almost like a memory palace, as the classical rhetoricians would say, with houses of lots of rooms and lots of memories in them as well.

Kevin Kosar:

Absolutely. Well, the debate over what authority a legislature or popular assemblies should have over foreign affairs goes way back past the American founding, doesn't it?

Alissa Ardito:

Yes, it does. We're most familiar with the great debates around the time of and after the English Civil War, those fundamental debates that become part of the British Constitution. But it goes back even earlier than that. You find it even in Thucydides, for instance, about the Sicilian expedition. So, this idea has moved back, about where does foreign policy fall. By tradition we think it's always been the preserve of monarchies, but that's not actually the case. We've had city-states and republican—again, small ‘r,’ meaning popular—forms of government for a long period of time.

One of the places in which this was debated perhaps most prominently before you get to the aftermath of the English Civil War was in the Renaissance and the early modern period. Specifically, Machiavelli is someone who thought about this quite a great deal, as the Florentines did in that era. The problem was that foreign affairs were conducted by rotating groups of executives; it was all by committee structure. People were involved because there was no sense of, well, the mayor of the city, or [in] principalities it was different—but there was no sense that one person needed to conduct foreign policy. The problem was, they started to find out—and the system worked, it worked well. Venice endured until 1807, so there's no reason to believe this can't work. But the problem these city-states found was that they were really slow and they couldn't come to decisions quickly enough. That had not been a problem in the fourteenth century or in the fifteenth, even. In the sixteenth, it starts to become a huge problem. They're not able to act effectively and expeditiously, and if they don't learn how to do so, they're going to be conquered. Now, the conventional wisdom is, and even was at that time, “Well, it's the era of monarchies. Our era is over.” But then there were thinkers, Machiavelli among them, who look back to the Roman Senate—because Rome was a great example of a decisive, expansionist republic—to try to figure out, should people be involved? How much popular ratification and popular debate should we have? And this goes back and forth, because you see it from de Tocqueville, who writes and says, “Foreign policy is one of the areas where people are least able to offer advice and public wisdom, should least enter because it's least valuable,” to Morgenthau saying, “All the attributes of a successful foreign policy are precisely those”—I'm really paraphrasing generously, expansively on his wonderful words—“that do not [inaudible] by public input, because you have to have a course that will endure over years instead of [the] strategy [of] appealing to the fickle nature of the popular will—it's just not going to work.” That's so often used as a reason to cut people out entirely. So, to come up with ways and devices, because popular will does ensure a certain amount of accountability, is one of the great challenges of institutional design.

Kevin Kosar:

Yeah. You hit on something that feels to me like a fundamental conundrum about self-government and foreign policy. On the one hand, foreign policy is exceedingly complex, and it inevitably involves negotiations among nations that require all sorts of interpersonal manipulation and gamesmanship. I mean, you read Kissinger's memoirs and things like that. The amount of stroking and fooling and blustering that goes on—it's an extremely complicated game played by a small number of representatives of each nation. So, the nature of the exercise to some degree lends itself to, "Just let the executive do it." On the other hand, if we're going to be a representative democracy, then how is it that we could have representative self-government if we simply take an entire realm of policy off the table and say, “The legislature has no business talking about this because they don't know foreign affairs”? That seems really problematic, not least because defining the boundaries of foreign affairs—Does it include trade? Does it include this? Does it include that?—gets extraordinarily messy. Executives, I should also mention, sometimes make mistakes in diplomacy and in decisions of war and power. What do you think?

Alissa Ardito:

I think that's true. Actually, Machiavelli would echo this in one of the chapters of the Discourses, which is his great book on republics and the institutional design of republics. He says, “Yeah, people make huge mistakes, especially in foreign policy. They love to go to war. They love military adventurism. They can't really be trusted.” But then he modifies what he's saying. He goes, “But princes can't be trusted either. They're prone to the same mistakes, and there's no remedy for that other than steel.” When it comes to the populace or the common man—what we would call now the median voter—you could talk to them. People after a while aren't fooled in things, and they go back and they change their minds, or reason appeals to the majority.

So, that's a reason to keep some public accountability mechanism afterwards, which is like a checking function. But maybe people should be involved in some way, or their representatives, in formulation of policy. That's where Machiavelli has his own solution, with the Senate and popular assemblies ratifying especially a declaration of war. And I think the United States developed a nice method of managing this through the Senate and the Committee on Foreign Relations. That was one of the original standing committees in 1816. That's how you get constitutionally grounded—not the committee structure, I mean, but advise and consent—role for, if not a broad public plebiscite on certain foreign policy questions, but you have the popular branch, you have a level of expertise, which I know is a tricky word to say, but familiarity with the issues, with the formulation of policy that develops over time. And the Senate allows that through the six year terms. It's hard to think of representatives who have the stature of—let's look at a Cabot Lodge, however you felt about the Treaty of Versailles. Or a Lugar, or a Vandenberg, or a Vannette, or a Walter George, or a Fulbright. You have senators who achieve a certain preeminence and a knowledge of foreign policy.

And the Senate was known as a graveyard of treaties unless the president took the time to consult with members of that committee. The argument goes, Wilson might not have had some of the challenges he had with the Treaty of Versailles, and the League of Nations, had he involved the committee earlier. I don't mean that always works. I think there are broader issues with executive agreements rather than treaties, and it could be the heyday of certain committees have ended. But I think it's fascinating to observe the way in which that committee evolved to implement some of the Constitution's allocations of power in a way that was successful in certain periods. Perhaps if you're looking back at NATO expansion, even in the ’90s, you could say the committee has been successful in performing its function.

Kevin Kosar:

I should underscore something you pointed out, which is that while it's easy to think of a president as longer in the seat and better equipped with all the advisors around him or her than somebody who's been elected—a former used car salesman or small town lawyer—history has shown that we have senators, we have members of the House, who get on foreign affairs committees and they stay there for a very long time—decades—far longer than any president may serve. And as such, they have a depth of knowledge and a cred in overseas nations that means something. It adds a steadiness to foreign policy.

I'll also just add that it seems to me that foreign policy by its very nature has to have popular consent, because inevitably it's going to involve the wellbeing and lives of the public—whether it's trade, which can affect...]]>cd6a5d1d-b442-4341-81ae-69d45618a49aMon, 01 Aug 2022 06:00:00 -050026:36falsefull2525What Are the Goals of Congressional Budgeting? (with Paul Winfree)The subject of this episode is, “What are the goals of congressional budgeting?”

My guest is Paul Winfree. He is a distinguished fellow in economic policy and public leadership at the Heritage Foundation. Importantly for today’s discussion, Paul has a great deal of knowledge about congressional budgeting. He has had stints both in the White House and in the Senate, where he worked on budgeting firsthand. Paul also is the author of the book The History (and Future) of the Budget Process in the United States: Budget by Fire (Palgrave Macmillan, 2019). So I’m very excited to be here with Paul Winfree.

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation.

I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington, DC.

Paul, welcome to the podcast.

Paul Winfree:

Thanks so much, Kevin. Really happy to be speaking with you today.

Kevin Kosar:

My sense is that if we asked Americans, “What are the goals of budget policy?” they likely would say something along the lines of, “It involves the government figuring out what to spend money on—like defense, for example—and how to pay for this spending. Budget balance is the goal of budgeting.” While that's true, what your fine book shows is that our government has had a variety of goals for budgeting over the past two centuries, correct?

Paul Winfree:

That's exactly right. One of the reasons why I wrote this book in the first place was that there's this narrative amongst budget experts in Washington, DC, these days that the budget process is broken. What I wanted to do is start to unwind that and ask both, "Well, why is the budget process broken?” but also, “How did we get to where we are today?" It might be my own bias on how I approach problems, but one of the things that helps me understand current mechanisms is also understanding how we got to those current mechanisms, rather than approaching the current problem sets as if they happened exogenously and were not predetermined by other things that have happened throughout our history.

So, what I do in this book is go back all the way to the very beginning and start with colonial America, and then walk us up to today. What you find throughout our history, in looking at both budget policy but also the formation of economic policy more broadly, is that there were lots of different goals, from debt eradication, to sending signals to European debt markets that we were a viable nation that they should take seriously, to macroeconomic management. The goals today are in some ways different than the goals 250 years ago, but in other ways similar. I think we'll probably talk about that a little bit in the next half hour.

Kevin Kosar:

All right. Well, let's start at the very beginning, which, as a wise person once sang, is a very good place to start. When the founders bargained out the U.S. Constitution, they had objectives for budgeting, didn't they?

Paul Winfree:

That's right. The founding generation was very practical in a sense, and they had to be. They were involved at the beginning of a new country, and like many founders of companies today, they didn't have a lot of time to prove to the world that their model was viable. Therefore, they tried some things such as the Articles of Confederation, which permitted the federal government to borrow money. But since the Articles didn't provide Congress with the power to raise revenue, they would apportion the cost of loans to the states based on their property values. This implicitly gave the states a veto over the terms of the loan agreements. Therefore, as a practical matter, you had officers of the federal government who had very limited power in negotiating the terms of these loans in Europe on behalf of the states, during a period when it took a typical mail ship one month to cross the Atlantic. Often, the state legislatures would have actually adjourned for the season by the time that the details of these agreements came back home for ratification. It's no wonder that James Madison wrote his friend Edmund Randolph saying that this created a bit of a struggle.

These first trials, though, were a reaction to the world that they had been attached to. This is partially a level of the perceived tyranny of the British crown. The press at the time had done a really good job fostering such sentiment. It was also partially a derivative of colonial governing bodies, cultures, and practical issues like physical distance and poor internal infrastructure that had fostered this decentralized mindset. But they had a serious problem, ultimately, with securing credit and managing debt payments. And to get other nations to take the newly created United States seriously, which was a prerequisite to life, liberty, the pursuit of happiness, and all of that, they needed to get their finances in order. So they changed things up rather quickly. As Alexander Hamilton famously wrote, "Debt…was the price of liberty,” and more important than any natural resource in maintaining the nation's security. Interestingly, and contrary to what you may hear from many protectionists today, Hamilton, the practical treasury secretary, preferred relatively modest and flat tariffs so as not to spook international markets and get into trading wars for this very reason.

But there was another goal that I talk about less in my book that I've become very persuaded by, primarily by the work of a guy at the University of Maryland named John Wallis, among others: that the avoidance of public corruption was also important for the founding, and also subsequent generations. This is because new Americans had witnessed instances where Parliament had provided special benefits to their political coalition, such as limiting market access through protected economic status in exchange for political support. This systemic corruption was in a sense intolerable, and would ultimately influence many of the budgeting reforms over our history. I think that this is something that may not make Americans different, but it is a characteristic of Americans. That is, for the entire existence of our country, there has generally been this populist intolerance to public corruption in a way that you don't see in other places such as China or Russia today. Public corruption seems to challenge the cultural notions of fairness and threaten virtues that are important to Americans, like liberty and freedom. This is also something that they would have learned from Adam Smith, who wrote about this very issue in particular in The Wealth of Nations, first published in 1776, that we know influenced the founding generation.

Kevin Kosar:

When I think about our Constitution, you won't find a section that says, "Here is the budget process and here are the objectives." Yet built into there, it seems to me, there's at least one objective, which is that the executive should not have independent authority to raise revenue, because the bad old kings of Europe did that and often started wars. I guess a second thing that's in there is the idea of revenue-raising—it should be done by the people in the government closest to the people. Therefore, revenue bills are supposed to start in the House, right?

Paul Winfree:

That's right. That was something that was learned and ultimately borrowed from the way that Parliament is structured in the British government. One of the issues that came about during the English Civil War was the king, King Charles at the time, was unilaterally executing his power as the monarch to raise taxes based on this threat of war. Ultimately, that upset people, led in part to the English Civil War. So when they went to go about putting things back together again during the Glorious Revolution, they made sure that essentially two things happened. The first thing that happened is that the Parliament had unilateral control over raising and lowering revenues—controlling revenues. The second thing is that they put that power with the House of Commons. That was adopted by the British colonists when they came to America, and ultimately was probably considered a truth when they went to go put together the Constitution. Of course this is the way we go about doing things.

Kevin, I'm no expert in British history, and especially British parliamentary history. But one of the other interesting things that seems to be an American institution is this one of advice and consent, which actually also has to do with budgeting powers. One of the things that you saw within the colonial governments was this issue where oftentimes the governor, who was a royal appointee, would want to do something. And the local legislatures, made up of...]]>The subject of this episode is, “What are the goals of congressional budgeting?”

My guest is Paul Winfree. He is a distinguished fellow in economic policy and public leadership at the Heritage Foundation. Importantly for today’s discussion, Paul has a great deal of knowledge about congressional budgeting. He has had stints both in the White House and in the Senate, where he worked on budgeting firsthand. Paul also is the author of the book The History (and Future) of the Budget Process in the United States: Budget by Fire (Palgrave Macmillan, 2019). So I’m very excited to be here with Paul Winfree.

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation.

I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington, DC.

Paul, welcome to the podcast.

Paul Winfree:

Thanks so much, Kevin. Really happy to be speaking with you today.

Kevin Kosar:

My sense is that if we asked Americans, “What are the goals of budget policy?” they likely would say something along the lines of, “It involves the government figuring out what to spend money on—like defense, for example—and how to pay for this spending. Budget balance is the goal of budgeting.” While that's true, what your fine book shows is that our government has had a variety of goals for budgeting over the past two centuries, correct?

Paul Winfree:

That's exactly right. One of the reasons why I wrote this book in the first place was that there's this narrative amongst budget experts in Washington, DC, these days that the budget process is broken. What I wanted to do is start to unwind that and ask both, "Well, why is the budget process broken?” but also, “How did we get to where we are today?" It might be my own bias on how I approach problems, but one of the things that helps me understand current mechanisms is also understanding how we got to those current mechanisms, rather than approaching the current problem sets as if they happened exogenously and were not predetermined by other things that have happened throughout our history.

So, what I do in this book is go back all the way to the very beginning and start with colonial America, and then walk us up to today. What you find throughout our history, in looking at both budget policy but also the formation of economic policy more broadly, is that there were lots of different goals, from debt eradication, to sending signals to European debt markets that we were a viable nation that they should take seriously, to macroeconomic management. The goals today are in some ways different than the goals 250 years ago, but in other ways similar. I think we'll probably talk about that a little bit in the next half hour.

Kevin Kosar:

All right. Well, let's start at the very beginning, which, as a wise person once sang, is a very good place to start. When the founders bargained out the U.S. Constitution, they had objectives for budgeting, didn't they?

Paul Winfree:

That's right. The founding generation was very practical in a sense, and they had to be. They were involved at the beginning of a new country, and like many founders of companies today, they didn't have a lot of time to prove to the world that their model was viable. Therefore, they tried some things such as the Articles of Confederation, which permitted the federal government to borrow money. But since the Articles didn't provide Congress with the power to raise revenue, they would apportion the cost of loans to the states based on their property values. This implicitly gave the states a veto over the terms of the loan agreements. Therefore, as a practical matter, you had officers of the federal government who had very limited power in negotiating the terms of these loans in Europe on behalf of the states, during a period when it took a typical mail ship one month to cross the Atlantic. Often, the state legislatures would have actually adjourned for the season by the time that the details of these agreements came back home for ratification. It's no wonder that James Madison wrote his friend Edmund Randolph saying that this created a bit of a struggle.

These first trials, though, were a reaction to the world that they had been attached to. This is partially a level of the perceived tyranny of the British crown. The press at the time had done a really good job fostering such sentiment. It was also partially a derivative of colonial governing bodies, cultures, and practical issues like physical distance and poor internal infrastructure that had fostered this decentralized mindset. But they had a serious problem, ultimately, with securing credit and managing debt payments. And to get other nations to take the newly created United States seriously, which was a prerequisite to life, liberty, the pursuit of happiness, and all of that, they needed to get their finances in order. So they changed things up rather quickly. As Alexander Hamilton famously wrote, "Debt…was the price of liberty,” and more important than any natural resource in maintaining the nation's security. Interestingly, and contrary to what you may hear from many protectionists today, Hamilton, the practical treasury secretary, preferred relatively modest and flat tariffs so as not to spook international markets and get into trading wars for this very reason.

But there was another goal that I talk about less in my book that I've become very persuaded by, primarily by the work of a guy at the University of Maryland named John Wallis, among others: that the avoidance of public corruption was also important for the founding, and also subsequent generations. This is because new Americans had witnessed instances where Parliament had provided special benefits to their political coalition, such as limiting market access through protected economic status in exchange for political support. This systemic corruption was in a sense intolerable, and would ultimately influence many of the budgeting reforms over our history. I think that this is something that may not make Americans different, but it is a characteristic of Americans. That is, for the entire existence of our country, there has generally been this populist intolerance to public corruption in a way that you don't see in other places such as China or Russia today. Public corruption seems to challenge the cultural notions of fairness and threaten virtues that are important to Americans, like liberty and freedom. This is also something that they would have learned from Adam Smith, who wrote about this very issue in particular in The Wealth of Nations, first published in 1776, that we know influenced the founding generation.

Kevin Kosar:

When I think about our Constitution, you won't find a section that says, "Here is the budget process and here are the objectives." Yet built into there, it seems to me, there's at least one objective, which is that the executive should not have independent authority to raise revenue, because the bad old kings of Europe did that and often started wars. I guess a second thing that's in there is the idea of revenue-raising—it should be done by the people in the government closest to the people. Therefore, revenue bills are supposed to start in the House, right?

Paul Winfree:

That's right. That was something that was learned and ultimately borrowed from the way that Parliament is structured in the British government. One of the issues that came about during the English Civil War was the king, King Charles at the time, was unilaterally executing his power as the monarch to raise taxes based on this threat of war. Ultimately, that upset people, led in part to the English Civil War. So when they went to go about putting things back together again during the Glorious Revolution, they made sure that essentially two things happened. The first thing that happened is that the Parliament had unilateral control over raising and lowering revenues—controlling revenues. The second thing is that they put that power with the House of Commons. That was adopted by the British colonists when they came to America, and ultimately was probably considered a truth when they went to go put together the Constitution. Of course this is the way we go about doing things.

Kevin, I'm no expert in British history, and especially British parliamentary history. But one of the other interesting things that seems to be an American institution is this one of advice and consent, which actually also has to do with budgeting powers. One of the things that you saw within the colonial governments was this issue where oftentimes the governor, who was a royal appointee, would want to do something. And the local legislatures, made up of British, directly elected representatives within the British colonies, would say, "Okay, we will support you in going about and doing something. We will raise revenue to go do that thing. But at the end of the day, we want to make sure that we have some say in who's ultimately going to be appointed to do whatever it is that you want to do." Hence, advice and consent. So again, they had this long, long history of this dynamic, that ultimately when they went to go put things together in the Constitution were probably just things that they took for granted. Well, of course this is the way that we go about doing things.

Kevin Kosar:

There was an element of a principal agent-relationship with the Congress, the elected officials being the principal, and the executive being the agent who is to carry out what the principals wanted. I should also mention before I move on to my next question that when it comes to raising revenue, Congress has to do it every year. You can't just say, "We're going to raise this revenue, and it's going to be spent this particular way in appropriations bills for the next hundred years." So they have go back and do this democratic exercise each year.

As America grew across the North American continent over the nineteenth century and had to contend with the Civil War and all sorts of other stuff, just for the sake of helping viewers get a sense of the breadth, how did the nation's budget objectives change?

Paul Winfree:

Well, now we're going to begin talking about one of my favorite periods in history, so you may have to bear with me here for a moment. During and immediately after the war, this objective transitions from becoming a viable nation to staying viable. And this wasn't so easy. The country's finances during the Civil War were often overlooked, which is understandable, as you mentioned, given the turbulence that was going on during the period. But the country didn't have sound financial footing heading into the war. In 1857, the federal government had reduced tariff rates at the same time that the country had to contend with this recession. What Congress did to deal with this is that they authorized a series of loans, but the government had a difficult time securing them because President Buchanan’s secretary of the treasury, a guy named Howell Cobb, was viewed as a Southern sympathizer. So in essence here, banks thought that if they gave him the money, then Cobb would run off with it. And they weren't exactly wrong; Cobb was an advocate for secession. He would go on to become the president of the Confederate Provisional Congress.

So Congress dealt with the budget deficit by increasing tariffs, which ended up being prohibitively high and reduced tariff revenue—because this is where they were on the Laffer curve, so to speak—by about 40 percent. One of the things that you begin to see during this period is that protectionism and trade policy begins to increase the volatility in government revenues, which causes policymakers to start to look for other ways to get cash. And when the war begins in April of 1861, the federal government had already been using loans to pay for about three-quarters of its spending. But within days of Confederate artillery firing on Fort Sumter on April 12th, they would exhaust all of the revenue that they would've pulled over the course of the year, and they turned entirely to borrowing.

On July 4th, 1861, Congress meets in this special session to provide for Lincoln's request for 400,000 troops and $400 million, which is about $12 billion in today's money. This begins a series of financial innovations from greenbacks to the federal income tax that are used to fund the war effort. At the time, all of these things were considered temporary, but we think of these things today as essentially standard tools in public finance. During the decade of the 1850s, customs duties accounted for about nine of every ten cents that the government collected. But after the conclusion of the war in 1865, customs duties would never account for more than 60 percent of total revenue again. So you really start to see a shift in reliance away from tariffs. We can also look to the war effort for this creation of institutions that, again, we think of today as part of the normal process. This includes things like the IRS and also the committees on appropriations.

Two of the biggest financial heroes of the Civil War that I write about it little bit in the book were Lincoln's secretary of the treasury, Chase, and Thaddeus Stevens, who was the chairman of the Ways and Means Committee. Like so many of the war's heroes, like Grant and even Lincoln himself, this wasn't exactly predictable. One of Chase's friends would later write, and I'm just going to read this quote because it's so good: "Had Mr. Lincoln known of the war that would follow his inauguration, it is not likely that he would have selected a man so ignorant of finance." So this is who Lincoln is picking as his treasury secretary. In fact, Lincoln himself didn't like dealing with the financial aspects of the government. When visitors would come to the White House and ask him about these matters, he would say, "Go see Secretary Chase, for he is managing my finances."

But ultimately Chase and Stevens were successful. This is I think in part because they were friends before the war. It was their close relationship that helped them get done what needed to get done. (Chase, as you likely know as a native from Ohio, was also from Ohio.) I also think that their relative inexperience with the way the government finances were supposed to work allowed them to have an open mind about what needed to be done in order to essentially make the government's ends meet. It's not like they didn't use experts; that's not what I'm saying at all here. As a matter of fact, Chase had a friend, who I talk a little bit about in the book, who had been a banker before the war, who he employed at the Treasury Department literally to advise him on how finance worked. But what was required during the war was an innovative approach to a really, really difficult problem, and generally a time period. And that's what transpired, I think in part because innovation had been a normal part of the budget process all the way from the beginning.

Kevin Kosar:

In your book, you note that “between 1789 and 1932, the annual budget of the U.S. had been balanced 66 percent of the time, or 80 percent of the time when excluding periods of major wars and economic recessions." That is an impressive achievement. And again, it's not something that's stipulated in the Constitution. How did the country do that? How did the legislative branch and the executive get together and make that happen so consistently?

Paul Winfree:

It's a difficult question. I think that it had something to do with persistence, necessity, and luck. In 1883, William Holman, who was a progressive economist, wrote that “in the early years of our history there were high motives for frugal government…to present a contrast between a free people administering their own affairs and the impoverished governments of Europe." That was also the case with President Jackson, who had balanced the budget and paid off the national debt during his tenure—as a signal more than anything else.

Debt retirement was also generally seen as a core component of public finance. This wasn't a new thing. This was, again, something that was inherited going all the way back to David Hume, who saw debt as a form of regressive redistribution. The cycle went something like this: war necessitated government debt, which was purchased by the wealthy, and then taxes were raised on the most productive members of society to finance that debt. Hume called this “the great encouragement of a useless and inactive life."

This rationale was not all that different than the populist resentment towards war profiteering during the Civil War and World War I. In fact, socialists early in the twentieth century were against government debt for the very same reasons that were articulated by Hume. Debt was also seen as a form of corruption. It was empowering of the powerful and the well-connected. Finally, and this is a critical bit here, it's important to remember that the U.S. didn't become the world's producer of safe assets until after World War I, and whoever is the world's producer of safe assets ultimately benefits from having low debt costs. So before World War I, it was the UK; since World War I, it's been the U.S. But if the U.S. loses this status, I think the fiscal situation could get worse very quickly.

So it goes back to some of the old questions about politics, really. Conservatives generally have a good appreciation for how culture affects politics. And in the case of debt, culturally, philosophically, and practically, debt retirement was just something that you did. So all of those channels drove the politics of debt retirement....]]>03778d7d-f9fa-473b-8846-e8176dd65205Tue, 05 Jul 2022 06:00:00 -050027:08falsefull2424What Is a Conference Committee and Why Are They So Rare Today? (with Josh Ryan)The subject of this episode is, “What is a conference committee and why are they so rare today?”

My guest is Josh Ryan. He is an associate professor of political science at Utah State University. Josh studies Congress, the president, state legislatures and executives, as well as electoral institutions. Importantly for the purpose of this episode of Understanding Congress, Josh is the author of the book The Congressional Endgame: Interchamber Bargaining and Compromise (University of Chicago Press, 2018). This book examines conference committees and the other ways the two chambers of Congress come to an agreement—or not—on legislation.

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation.

I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington, DC.

Josh, welcome to the podcast.

Josh Ryan:

Thanks so much for having me.

Kevin Kosar:

Let's start very simply, Schoolhouse Rock! style. What is a conference committee?

Josh Ryan:

We think of Congress as one branch of government, and Congress is actually two different institutions. The House and the Senate are separated from each other. They have almost no control over what the other chamber does. They have their own legislators, obviously. They have their own procedures, their own norms, their own committees, their own ways of doing things. And when they write a bill, even if the House and the Senate generally agree on the parameters of the bill and what's going to be in the bill, because of all these differences, they usually write two different versions of a bill. So we can think of the House as developing some version of a bill to address some policy problem. Typically the Senate takes up legislation after the House, but not always. Senators are their own people and they like to do their own thing, and they typically change the House bill in some way. So even though the House and the Senate are supposed to kind of be working together, if the bill is anything more interesting or substantive than some trivial piece of legislation, we're going to end up with two different versions of the bill.

The Constitution requires that Congress can only send one version of the bill to the president, so the House and the Senate have to have some way of resolving their differences, of agreeing on the exact same language for a given bill. Historically, one of the main ways that they've come to an agreement is by using a conference committee. This is a temporary committee, so it's different than the standing committees in Congress, like the Agriculture Committee or the Armed Services Committee, which exist and are more or less permanent. The conference committee is ad hoc. It's created just to address the differences between the House and the Senate on a particular bill.

The House and the Senate will each designate conferees. These are individuals usually who serve on the standing committees which dealt with the bill. And those people will go to a conference where they sit down and they try to hash out the differences between the House and the Senate version. Once they've done that, the conference committee sends the bill back to both chambers, and both the House and the Senate then have to vote on the bill again. But importantly, they can't make changes to the bill at that point, and the House and the Senate have the exact same version of the bill, exactly the same words, etc. At that point, if they both approve the bill, the bill goes to the president.

Kevin Kosar:

Now, if I could just ask as a brief follow-up: one of the things you note in your book is that if you look to the Constitution to see what a conference committee is, how it's defined, and who's to be on it, you're not going to find it there. There's an element whenever it comes to a conference committee of kind of an adhocracy, where they are reinventing the wheel each time they put one of these together. Is that right?

Josh Ryan:

That's exactly right. And this is a little bit unusual. Many states use joint committees, that is, committees that are shared between the two chambers, but Congress doesn't work that way, and it really hasn't historically. The House and the Senate have found conference committees to be pretty effective, though. Almost all bills that end up in conference are eventually approved by the chambers and sent to the president. Something like 95 percent of bills that make it to conference end up going to the president's desk. So despite the fact that, as you said, it's ad hoc—every time they do it, it feels like they're reinventing the wheel—it actually works pretty well. And I think the House and the Senate believe it to be an efficient and good way of resolving their differences.

Kevin Kosar:

Perhaps the lack of constitutional prescription detail just creates the flexibility that you really need, ultimately, to get the right people in the room together and to have the flexibility to work things out.

So, conference committee, that's one way to deal with the issue of the House and the Senate both trying to legislate on the same subject, but ending up with two bills that are not identical. What are the other ways for the president to receive one piece of legislation rather than two pieces of paper?

Josh Ryan:

The most common alternative to conferencing, which the chambers are using more and more frequently nowadays, is what we refer to as amendment trading. Some people call it ping-ponging. You can think of the analogy of a ball bouncing back and forth across the table. The idea here is, rather than creating a committee, when they use amendment trading or ping-ponging, the House and the Senate simply amend the bill in some way and send it back to the other chamber. They amend the bill, hopefully moving it closer to the other chamber's version. The bill gets sent back to the other chamber again. They may amend the bill, moving it again closer to the other chamber's version. And they can do this a number of times, typically no more than three (though there are some exceptions to that). The idea is that they sequentially amend the bill to get it to a place where they can both approve it without changing it. So that's the main alternative to conferencing.

One of the things that people forget is [that] there is an alternative to avoid this entire process, which is, simply agree to accept the other chamber's bill without changing it. We actually see this, and I argue in my book that it's becoming more frequent because it offers a way out. If the Senate knows it's going to have difficulty getting to conference or getting agreement in conference or navigating the amendment trading process, they may just take the bill as is from the House. And the same is true with the House. This has happened a couple of times in the last few years, and it's a way of short-circuiting the process. The chamber that does this may not get everything they want, but it's probably going to be easier when they choose to do this. It's going to be easier for them than having to negotiate the bill again after going through the difficulty of passing it the first time.

Kevin Kosar:

I'm glad you mentioned that, because recently there was an interesting example of that, where the two chambers were grappling with the debt limit and the fact that the country was about to cross it. And if I recall, the way that played out was that the Senate ultimately passed a bill, and then the House voted upon a rule. That rule had a number of provisions, one of which said that the Senate bill on raising the debt limit shall be deemed as approved. The House just basically recognized that they didn't want to have to put their members out there voting on this, but they also didn't want to play amendment ping-pong, apparently. That's the way they got it done, and that's how the bill went to Biden's desk.

Josh Ryan:

Yeah, that's a really good example of how this works. Usually, in this whole process, it's the Senate that's the problem, at least recently. The Senate has a harder time doing all of these things. The leadership doesn't have as much control over procedures, as much control over the membership. We've had more narrow majorities, arguably, in the Senate than in the House. So typically, when it comes to post-passage bargaining, resolution conferencing, amendment trading, it's the Senate that's the fly in the ointment. Often, just as you said, the House has been put in the position of, we have to take the Senate bill or we're not going to get anything, because it can't go back to that chamber. We'll never get agreement.

Kevin Kosar:

Right. And just for listeners’ purposes, why is it that the Senate tends to be the fly in the ointment?

Josh Ryan:

Well, in the Senate it's just harder to get things done. The majority party doesn't have the same power that they do in the House. We're seeing a really good example of this today, which is, in the House today, even with the very narrow majority the Democrats have, they've mostly been able to do what they want. Not entirely, but they've been pretty effective. It hasn't been a situation in which the party is...]]>The subject of this episode is, “What is a conference committee and why are they so rare today?”

My guest is Josh Ryan. He is an associate professor of political science at Utah State University. Josh studies Congress, the president, state legislatures and executives, as well as electoral institutions. Importantly for the purpose of this episode of Understanding Congress, Josh is the author of the book The Congressional Endgame: Interchamber Bargaining and Compromise (University of Chicago Press, 2018). This book examines conference committees and the other ways the two chambers of Congress come to an agreement—or not—on legislation.

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation.

I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington, DC.

Josh, welcome to the podcast.

Josh Ryan:

Thanks so much for having me.

Kevin Kosar:

Let's start very simply, Schoolhouse Rock! style. What is a conference committee?

Josh Ryan:

We think of Congress as one branch of government, and Congress is actually two different institutions. The House and the Senate are separated from each other. They have almost no control over what the other chamber does. They have their own legislators, obviously. They have their own procedures, their own norms, their own committees, their own ways of doing things. And when they write a bill, even if the House and the Senate generally agree on the parameters of the bill and what's going to be in the bill, because of all these differences, they usually write two different versions of a bill. So we can think of the House as developing some version of a bill to address some policy problem. Typically the Senate takes up legislation after the House, but not always. Senators are their own people and they like to do their own thing, and they typically change the House bill in some way. So even though the House and the Senate are supposed to kind of be working together, if the bill is anything more interesting or substantive than some trivial piece of legislation, we're going to end up with two different versions of the bill.

The Constitution requires that Congress can only send one version of the bill to the president, so the House and the Senate have to have some way of resolving their differences, of agreeing on the exact same language for a given bill. Historically, one of the main ways that they've come to an agreement is by using a conference committee. This is a temporary committee, so it's different than the standing committees in Congress, like the Agriculture Committee or the Armed Services Committee, which exist and are more or less permanent. The conference committee is ad hoc. It's created just to address the differences between the House and the Senate on a particular bill.

The House and the Senate will each designate conferees. These are individuals usually who serve on the standing committees which dealt with the bill. And those people will go to a conference where they sit down and they try to hash out the differences between the House and the Senate version. Once they've done that, the conference committee sends the bill back to both chambers, and both the House and the Senate then have to vote on the bill again. But importantly, they can't make changes to the bill at that point, and the House and the Senate have the exact same version of the bill, exactly the same words, etc. At that point, if they both approve the bill, the bill goes to the president.

Kevin Kosar:

Now, if I could just ask as a brief follow-up: one of the things you note in your book is that if you look to the Constitution to see what a conference committee is, how it's defined, and who's to be on it, you're not going to find it there. There's an element whenever it comes to a conference committee of kind of an adhocracy, where they are reinventing the wheel each time they put one of these together. Is that right?

Josh Ryan:

That's exactly right. And this is a little bit unusual. Many states use joint committees, that is, committees that are shared between the two chambers, but Congress doesn't work that way, and it really hasn't historically. The House and the Senate have found conference committees to be pretty effective, though. Almost all bills that end up in conference are eventually approved by the chambers and sent to the president. Something like 95 percent of bills that make it to conference end up going to the president's desk. So despite the fact that, as you said, it's ad hoc—every time they do it, it feels like they're reinventing the wheel—it actually works pretty well. And I think the House and the Senate believe it to be an efficient and good way of resolving their differences.

Kevin Kosar:

Perhaps the lack of constitutional prescription detail just creates the flexibility that you really need, ultimately, to get the right people in the room together and to have the flexibility to work things out.

So, conference committee, that's one way to deal with the issue of the House and the Senate both trying to legislate on the same subject, but ending up with two bills that are not identical. What are the other ways for the president to receive one piece of legislation rather than two pieces of paper?

Josh Ryan:

The most common alternative to conferencing, which the chambers are using more and more frequently nowadays, is what we refer to as amendment trading. Some people call it ping-ponging. You can think of the analogy of a ball bouncing back and forth across the table. The idea here is, rather than creating a committee, when they use amendment trading or ping-ponging, the House and the Senate simply amend the bill in some way and send it back to the other chamber. They amend the bill, hopefully moving it closer to the other chamber's version. The bill gets sent back to the other chamber again. They may amend the bill, moving it again closer to the other chamber's version. And they can do this a number of times, typically no more than three (though there are some exceptions to that). The idea is that they sequentially amend the bill to get it to a place where they can both approve it without changing it. So that's the main alternative to conferencing.

One of the things that people forget is [that] there is an alternative to avoid this entire process, which is, simply agree to accept the other chamber's bill without changing it. We actually see this, and I argue in my book that it's becoming more frequent because it offers a way out. If the Senate knows it's going to have difficulty getting to conference or getting agreement in conference or navigating the amendment trading process, they may just take the bill as is from the House. And the same is true with the House. This has happened a couple of times in the last few years, and it's a way of short-circuiting the process. The chamber that does this may not get everything they want, but it's probably going to be easier when they choose to do this. It's going to be easier for them than having to negotiate the bill again after going through the difficulty of passing it the first time.

Kevin Kosar:

I'm glad you mentioned that, because recently there was an interesting example of that, where the two chambers were grappling with the debt limit and the fact that the country was about to cross it. And if I recall, the way that played out was that the Senate ultimately passed a bill, and then the House voted upon a rule. That rule had a number of provisions, one of which said that the Senate bill on raising the debt limit shall be deemed as approved. The House just basically recognized that they didn't want to have to put their members out there voting on this, but they also didn't want to play amendment ping-pong, apparently. That's the way they got it done, and that's how the bill went to Biden's desk.

Josh Ryan:

Yeah, that's a really good example of how this works. Usually, in this whole process, it's the Senate that's the problem, at least recently. The Senate has a harder time doing all of these things. The leadership doesn't have as much control over procedures, as much control over the membership. We've had more narrow majorities, arguably, in the Senate than in the House. So typically, when it comes to post-passage bargaining, resolution conferencing, amendment trading, it's the Senate that's the fly in the ointment. Often, just as you said, the House has been put in the position of, we have to take the Senate bill or we're not going to get anything, because it can't go back to that chamber. We'll never get agreement.

Kevin Kosar:

Right. And just for listeners’ purposes, why is it that the Senate tends to be the fly in the ointment?

Josh Ryan:

Well, in the Senate it's just harder to get things done. The majority party doesn't have the same power that they do in the House. We're seeing a really good example of this today, which is, in the House today, even with the very narrow majority the Democrats have, they've mostly been able to do what they want. Not entirely, but they've been pretty effective. It hasn't been a situation in which the party is constantly losing floor votes or they're being split. The leadership in the House has a lot of tools to keep members in line. There tends to be less ideological disagreement within members in the House than there is in the Senate. In the Senate, everything's harder. And I haven't even mentioned the biggest difficulty the Senate has in getting things done, which is the filibuster and the necessity of invoking cloture on a lot of things. That just makes it hard to get things done in the Senate.

One of the things I could have mentioned about conferencing is [that] going to conference, setting that process up, that is a debatable motion in the Senate. That can be subject to a filibuster, which means you have to invoke cloture on that motion.

Kevin Kosar:

Yeah. One thing that really caught my eye in your book, which is quite excellent (and I encourage listeners to get a copy), is up until roughly 2013, the Senate had to engage in something like three separate steps, all of which were debatable, all of which would require getting 60 senators to say “yea,” just to do the conference process. That's to say nothing of actually completing the process and being happy with it. But just to get there! Incredible, absolutely incredible.

Josh Ryan:

Yeah, that's exactly right. And in fact, as you mentioned, in 2013, the Democrats, as part of their limited overhaul of the filibuster, actually collapsed those three motions into one motion with the idea that instead of having to invoke cloture three times, you could just do it once. Whether that's actually increased the likelihood of going to conference, I'm not sure. That's kind of an open area of research. It hasn't been that long since this reduction in debatable motions has been in place in the Senate. But I think that's a really interesting question that hopefully we can look into in the next couple of years and determine whether that's helped.

Kevin Kosar:

Yeah. The question of whether you take a bunch of smaller decisions and ball them together—does that create one high-stakes decision, or does that affect people's calculus when they're thinking about whether they're going to say “yea” or “nay”? That's very interesting. I'd love to see what the research shows on that.

I want to double back to amendment ping-pong. It's such a great image of little white balls flying between the two chambers, each with text inside of them. Who gets to play in this game? Do all members, all senators, all representatives, get to take a whack at a ping-pong ball, or does it not work like that?

Josh Ryan:

In theory, when the chambers use this ping-ponging process, we're basically just engaged in amending the bill on the floor. So in theory, it should look like any other amending process, more or less.

One of the arguments about why this process has been used more frequently is that it empowers the leadership. It makes the leadership stronger in the House and Senate, gives them more control over the process. And I think there's something to that. You can think about a conference committee, this committee that's set up to resolve differences on a bill. A conference committee is made up of members, usually from the standing committees who dealt with the bill, so committees of jurisdiction on a particular bill. Leadership doesn't have a big say in that, because you've just mostly got the committee chairs empowered, members of the standing committees empowered on a conference committee to rewrite the legislation in a way they see fit.

When we have amendment trading, because it's done on the floor, basically it's just a typical amending process in the House and the Senate. Who runs the show on the floor? Well, the party leadership and its deputies. So the idea is, the leadership has more control over the eventual outcome. They can direct members how to vote. They can direct members in terms of what the amendment should look like.

I think there's something to that, as I said. I'm not entirely sure it's all about the leadership, though. One thing we can think about is [that] the minority party, especially in the Senate, has been probably the cause of some of the reduction in conferencing because they've sought to block conference committees as a way of stalling the bill. But if you're a member of the minority party, why block legislation that's going to go to conference if it's going to go to the amendment trading process, which gives the party leadership more control over it? You might end up with more partisan legislation that way.

So I'm not entirely sure the story is all about the leadership, but I think they certainly have a role to play in that amendment trading or ping-ponging process.

Kevin Kosar:

Interesting. I was curious—is there an informal version of amendment ping-pong that goes on, where instead of having the House have to get together and vote on a new version of the bill with new amendments and send it over and hope it's okay and then have it come back, etc., they're just getting together and perhaps putting together drafts, things that are not legislation proper, but something that can be whacked in as a substitute if they get the sense that the other chamber is kosher with that?

Josh Ryan:

I think there's absolutely some of that going on. I think for both parties, and especially when you have unified control of the chambers—so right now you've got Democrats in both chambers trying to work together to resolve their differences. They don't want to have these fights on the floor. It's very inefficient. It takes a long time, it takes a lot of energy. They want to get the bill in a state that is as close to final as possible before they send it out in the world and take their chances with the amending process.

There is a big debate in the political science literature now more broadly about how much control the party leadership has relative to the standing committees. What we're seeing is [that] bills are increasingly being written in the leadership's office, not in the committee rooms. So the argument is, anything the leadership can do to exert more power over this process, exert more power over how the House and the Senate resolve their differences, is an indication of polarization and delegation by members to the party leadership.

On the other hand, even when they're writing bills within the speaker's office, who's doing the actual writing? It's probably members of the standing committee. They're in there meeting with the speaker, certainly, but the speaker or her deputies or the Senate majority leader don't have the knowledge or wherewithal on these specialized issues to actually write the bill themselves. They're still leaning quite heavily on committees.

So, Kevin, getting back to your question, a lot of this is about a tradeoff between who has the power to get these bills over the finish line. Is it the leadership or is it the committees—the committee chairs and the committee members?

Kevin Kosar:

In your book, you note that one of the longstanding conversations in political science and more generally on the issue of two chambers resolving their differences is the question, who wins? The listener of this podcast might be thinking to themselves, well, if the Senate is the place that it's really tougher to get agreement on, maybe that gives the Senate an advantage. The Senate is going to be the winner, because good luck getting up to sixty and all that sort of stuff.

You've crunched the numbers. You've done an immense amount of research on this. Who wins?

Josh Ryan:

Well, nowadays I think it probably mostly is the Senate. When I was writing the book and going through the literature and stuff, a lot of this “who wins” idea comes out of Congress in the 1960s and 1970s. At that point, there's quite a bit of literature that actually says that the House was more constrained. It was harder to get things through the House than the Senate. The House was the more moderate one; the Democratic Party, which controlled the House in that period of time, was split between conservative Democrats and more liberal Democrats, conservative Southern Democrats. So the House was the stumbling block. Now we think of the Senate as the stumbling block, given the sixty-vote threshold and the distribution of ideology within the Senate, and how difficult it is to get anything through the Senate. The Senate tends to be more moderate than the House, that is, the average bill outcome in the Senate moves closer to the center of the policy space than in the House, because of party control.

So there's nothing inherent, necessarily, about the Senate that makes it more difficult. It's just the circumstances today, in which we've got polarized chambers, we've got a very moderate Senate and a relatively more ideologically extreme House. So your logic, I think, was absolutely correct. It tends to be the chamber that is more constrained. It tends to be the chamber that's going to have a harder time. The Senate today can credibly look at the House and go, well, we're doing what we want because if we do what you want, it's going to lose. So you either get what we want or you get nothing. I think that's the way it works quite a bit today, but that wasn't always true, and it may not be true in the future either.

Kevin Kosar:

Before I get to my last question, let me just do one more...]]>2539f5d6-1f5a-4e59-92bd-bd3b88ff3d79Mon, 06 Jun 2022 06:00:00 -050024:56falsefull2323What Is the Relationship between Lobbyists and Congress? (with Timothy LaPira)The topic of this episode is, “What is the relationship between lobbyists and Congress?”

My guest is Timothy LaPira. He is a professor of political science at James Madison University and a faculty affiliate at the Center for Effective Lawmaking at the University of Virginia. Tim, I should add, is the lead editor of our volume Congress Overwhelmed: The Decline of Congressional Capacity and Prospects for Reform (University of Chicago Press, 2020). But even more relevant to the subject of this podcast episode is that Professor LaPira coauthored the book Revolving Door Lobbying: Public Service, Private Influence, and the Unequal Representation of Interests. This makes him an especially apt person to answer the question for us, “What is the relationship between lobbyists and Congress?”

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation.

I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington, DC.

Tim, welcome to the podcast.

Timothy LaPira:

Thank you for having me. Glad to be here.

Kevin Kosar:

Let's start very simply, with the definition of a lobbyist. Now, under the First Amendment, anyone can petition the government for a redress of grievances, as the Constitution says. So plenty of people do talk to Congress, and the executive branch and judiciary, for that matter. In fact, in my job at a think tank, I am often asked to comment on bills or testify before Congress by congressional staff or even legislators who approach me. But I'm not a lobbyist. So what makes a lobbyist a lobbyist?

Timothy LaPira:

This is a great question. It's one that's often misunderstood. There's many definitions of what a lobbyist is, but I tend to think of—there's two ways to think about this. First, the more comprehensive, academic version of thinking about a lobbyist. It could go by the name of policy advocate, government relations professional, policy strategist, or something along those lines. These are people who make money to represent other people's interests. Those interests are typically going to be collected in organizations, but it's not just representing those interests in speaking. It's representing those interests in the policymaking process. There has to be a connection between the private sector and the government. So that's a very broad definition.

There is, further, a statutory definition, primarily through the Lobbying Disclosure Act of 1995, which has been updated a number of times. In that law, there's a three-test definition of what a lobbyist is. First, they have to earn money. There's a minimum amount of money that's frankly not all that much given the size of the lobbying industry. It's about $5,000 a month. Second, they have to contact more than one government official. The purpose of this in the law, of course, is not to simply capture everyone, as you suggested. They might want to call up their member of Congress and say, "Vote for the bill,” or “Vote against a nominee," or what have you. The third point of the definition is most critical and frankly controversial: the lobbyist must spend more than 20 percent of her time on lobbying services in a given three-month reporting period. Now, Senator Levin, when he originally wrote this law—the intent here was that he was hearing from a lot of CEOs from major corporations who said [that] frequently CEOs are picking up the phone and calling senators. It's a necessary part of their job, but they don't consider themselves lobbyists. And they're not, in many respects. So the idea was to try to capture, who are the day-to-day, routine, professional lobbyists? And this 20 percent definition was sort of picked out of thin air. If we think about it, one full day in a five-day week is 20 percent of your time. This was intended to not capture everybody in a given organization. The problem with that, as we'll see, is that a lobbyist could define the fact that they're spending 19 percent of their time on lobbying services and therefore not be a lobbyist, which is, frankly, pretty disingenuous.

Kevin Kosar:

Well, we have this category called lobbyists, but why do we have lobbyists? And are they helpful to Congress in any way, or are they just the bane of the legislative process?

Timothy LaPira:

That's a good question. I often pose this to my students to think about it this way. Are lobbyists good or bad for democracy? The answer is yes. It partly depends on what your perspective is. I don't like lobbyists who are taking on positions that I disagree with or oppose. I do like advocates who are speaking on my behalf and representing my own interests.

But the real answer to your question here is that every person has a set of political interests by nature. We all have jobs, pay taxes, use roads, are protected with the common defense, and whatnot. We all have an idiosyncratic set of interests. And what lobbyists are doing—I would say we all have interests that deserve a voice. That's the First Amendment part. And what lobbyists are doing is acting on our behalf to be our voice because we're busy with our day jobs, and we're busy raising kids and doing the shopping. We don't have time every day to walk up to Capitol Hill and communicate what our interests are.

So lobbyists act as our agents and as our representatives, much like a lawyer might act on our behalf in court. Lobbyists have highly specialized expertise as well. These are typically not just random people off the street who people would be willing to pay to represent their interests. They have technical policy knowledge. They have experience in and around decision-making venues like Congress or the White House. And they also have really dense professional networks, typically in and around the government, where they can pick up the phone and call somebody, and they'll call them back, or they know who to call with a particular question or who to communicate an interest to. So, in that sense, they're serving citizens as our representatives and our voice, and they're able to speak much better than we are, even on behalf of our own interests, because they know the backgrounds and they know who to talk to.

On Congress's side, or more generally in the government, including the executive, they're also useful because of their expertise. Members of Congress, in particular—the universe of problems that Congress could be asked to resolve is everything. Meaning that any given member of Congress can't possibly highly specialize the way that a lobbyist might. That means members of Congress are human, and they have some blind spots. They have some spaces where they don't know the ins and outs of a given problem or a solution or a proposed law. So it's useful to rely on experts, and those experts are often lobbyists—as well as think tank scholars and other folks in industry or in a social organization, what have you. So they are providing a good service to government.

Now, that's not to say that they're providing that service for free or without any prejudice. They are representing a particular perspective and a highly specialized interest in a fight that might be—All policy conflicts are, after all, conflicts. They are disagreements among several people or groups of people who see differently. So they're going to represent their own perspective. What that means is oftentimes there are some perspectives that are better represented than others. So when it comes to “Are lobbyists good or bad for democracy?” they're good because they do provide that service, but they're not always good because they're not always representing interests equally.

Kevin Kosar:

That's excellent, excellent. Thank you.

Now, let's talk about money. That word came up a short time ago. One of the common claims about lobbyists is that they buy legislators' votes. They say, "Hey, take this position, and we'll give a whole bunch of money to your campaign." Do legislators get bought? Is that a typical thing that happens in Washington, DC, or are lobbyists mostly giving money to legislators who already have positions that coincide or are the same as what the lobbyists want?

Timothy LaPira:

Yeah, this is a great question. It's also I think largely [mis]understood, in particular how we discuss the role of lobbyists and organized interests in the media, and frankly, the very politicians we're talking about as well. Lobbyists don't walk around the Capitol with bags of cash to hand out. That's not how it works, both literally or figuratively. Lobbyists are often going to be making campaign donations themselves and working with campaign strategists. They'll be offering advice to their clients and those who they represent about who might be best to give money to. The number one category of legislator or politician, by far, and it's not even close, it is to give money to...]]>The topic of this episode is, “What is the relationship between lobbyists and Congress?”

My guest is Timothy LaPira. He is a professor of political science at James Madison University and a faculty affiliate at the Center for Effective Lawmaking at the University of Virginia. Tim, I should add, is the lead editor of our volume Congress Overwhelmed: The Decline of Congressional Capacity and Prospects for Reform (University of Chicago Press, 2020). But even more relevant to the subject of this podcast episode is that Professor LaPira coauthored the book Revolving Door Lobbying: Public Service, Private Influence, and the Unequal Representation of Interests. This makes him an especially apt person to answer the question for us, “What is the relationship between lobbyists and Congress?”

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation.

I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington, DC.

Tim, welcome to the podcast.

Timothy LaPira:

Thank you for having me. Glad to be here.

Kevin Kosar:

Let's start very simply, with the definition of a lobbyist. Now, under the First Amendment, anyone can petition the government for a redress of grievances, as the Constitution says. So plenty of people do talk to Congress, and the executive branch and judiciary, for that matter. In fact, in my job at a think tank, I am often asked to comment on bills or testify before Congress by congressional staff or even legislators who approach me. But I'm not a lobbyist. So what makes a lobbyist a lobbyist?

Timothy LaPira:

This is a great question. It's one that's often misunderstood. There's many definitions of what a lobbyist is, but I tend to think of—there's two ways to think about this. First, the more comprehensive, academic version of thinking about a lobbyist. It could go by the name of policy advocate, government relations professional, policy strategist, or something along those lines. These are people who make money to represent other people's interests. Those interests are typically going to be collected in organizations, but it's not just representing those interests in speaking. It's representing those interests in the policymaking process. There has to be a connection between the private sector and the government. So that's a very broad definition.

There is, further, a statutory definition, primarily through the Lobbying Disclosure Act of 1995, which has been updated a number of times. In that law, there's a three-test definition of what a lobbyist is. First, they have to earn money. There's a minimum amount of money that's frankly not all that much given the size of the lobbying industry. It's about $5,000 a month. Second, they have to contact more than one government official. The purpose of this in the law, of course, is not to simply capture everyone, as you suggested. They might want to call up their member of Congress and say, "Vote for the bill,” or “Vote against a nominee," or what have you. The third point of the definition is most critical and frankly controversial: the lobbyist must spend more than 20 percent of her time on lobbying services in a given three-month reporting period. Now, Senator Levin, when he originally wrote this law—the intent here was that he was hearing from a lot of CEOs from major corporations who said [that] frequently CEOs are picking up the phone and calling senators. It's a necessary part of their job, but they don't consider themselves lobbyists. And they're not, in many respects. So the idea was to try to capture, who are the day-to-day, routine, professional lobbyists? And this 20 percent definition was sort of picked out of thin air. If we think about it, one full day in a five-day week is 20 percent of your time. This was intended to not capture everybody in a given organization. The problem with that, as we'll see, is that a lobbyist could define the fact that they're spending 19 percent of their time on lobbying services and therefore not be a lobbyist, which is, frankly, pretty disingenuous.

Kevin Kosar:

Well, we have this category called lobbyists, but why do we have lobbyists? And are they helpful to Congress in any way, or are they just the bane of the legislative process?

Timothy LaPira:

That's a good question. I often pose this to my students to think about it this way. Are lobbyists good or bad for democracy? The answer is yes. It partly depends on what your perspective is. I don't like lobbyists who are taking on positions that I disagree with or oppose. I do like advocates who are speaking on my behalf and representing my own interests.

But the real answer to your question here is that every person has a set of political interests by nature. We all have jobs, pay taxes, use roads, are protected with the common defense, and whatnot. We all have an idiosyncratic set of interests. And what lobbyists are doing—I would say we all have interests that deserve a voice. That's the First Amendment part. And what lobbyists are doing is acting on our behalf to be our voice because we're busy with our day jobs, and we're busy raising kids and doing the shopping. We don't have time every day to walk up to Capitol Hill and communicate what our interests are.

So lobbyists act as our agents and as our representatives, much like a lawyer might act on our behalf in court. Lobbyists have highly specialized expertise as well. These are typically not just random people off the street who people would be willing to pay to represent their interests. They have technical policy knowledge. They have experience in and around decision-making venues like Congress or the White House. And they also have really dense professional networks, typically in and around the government, where they can pick up the phone and call somebody, and they'll call them back, or they know who to call with a particular question or who to communicate an interest to. So, in that sense, they're serving citizens as our representatives and our voice, and they're able to speak much better than we are, even on behalf of our own interests, because they know the backgrounds and they know who to talk to.

On Congress's side, or more generally in the government, including the executive, they're also useful because of their expertise. Members of Congress, in particular—the universe of problems that Congress could be asked to resolve is everything. Meaning that any given member of Congress can't possibly highly specialize the way that a lobbyist might. That means members of Congress are human, and they have some blind spots. They have some spaces where they don't know the ins and outs of a given problem or a solution or a proposed law. So it's useful to rely on experts, and those experts are often lobbyists—as well as think tank scholars and other folks in industry or in a social organization, what have you. So they are providing a good service to government.

Now, that's not to say that they're providing that service for free or without any prejudice. They are representing a particular perspective and a highly specialized interest in a fight that might be—All policy conflicts are, after all, conflicts. They are disagreements among several people or groups of people who see differently. So they're going to represent their own perspective. What that means is oftentimes there are some perspectives that are better represented than others. So when it comes to “Are lobbyists good or bad for democracy?” they're good because they do provide that service, but they're not always good because they're not always representing interests equally.

Kevin Kosar:

That's excellent, excellent. Thank you.

Now, let's talk about money. That word came up a short time ago. One of the common claims about lobbyists is that they buy legislators' votes. They say, "Hey, take this position, and we'll give a whole bunch of money to your campaign." Do legislators get bought? Is that a typical thing that happens in Washington, DC, or are lobbyists mostly giving money to legislators who already have positions that coincide or are the same as what the lobbyists want?

Timothy LaPira:

Yeah, this is a great question. It's also I think largely [mis]understood, in particular how we discuss the role of lobbyists and organized interests in the media, and frankly, the very politicians we're talking about as well. Lobbyists don't walk around the Capitol with bags of cash to hand out. That's not how it works, both literally or figuratively. Lobbyists are often going to be making campaign donations themselves and working with campaign strategists. They'll be offering advice to their clients and those who they represent about who might be best to give money to. The number one category of legislator or politician, by far, and it's not even close, it is to give money to people you already agree with. Senators, on average, are raising tens of millions of dollars for reelection. They're not going to remember one five thousand dollar check. Five thousand dollars might be a lot of money to you and me, but in the collective, it's going to get drowned out. If you think about how to give money strategically, you're going to give it to those who you agree with and who are most likely to get reelected, and on top of that, who are most likely to be sitting on the committees in Congress that are going to be most closely regulating your interests. The idea is if you have your friends there, that's a better starting position in a policy conflict than to try to play catch-up and try to explain your way out of a paper bag in order to get members of Congress to ostensibly change their mind on issues—which is exceedingly rare and difficult to do.

That's not to say that members of Congress and senators never changed their mind after meeting with a lobbyist. As I said before, lawmakers don't know everything. They can't be expected to know everything. And they're often going to be seeking out good expert and highly-specialized information from lobbyists, among others. Sometimes what they hear they're going to agree with, and they'll change their mind. It's going to be rare, I would say, when members of Congress are in those positions, to consider what the donors want first. When I've worked for members of Congress in the past, and we've had to respond to thorny or potentially risky policy questions, we go through a whole list of potential stakeholders or people who might have an interest in this policy we're making—starting with constituents and voters, and potential voters, as well as fellow partisans, party leaders, and major employers in my state or my district. If thinking through a problem while thinking through those stakeholders doesn't lead to a good answer, then I might be open to persuasion from a lobbyist. And not just a lobbyist, a lobbyist who has given me money. So, it's not that it never happens, but it's typically something that's relatively lower on the totem pole. Lobbyists and special interests on the outside are not typically giving money in order to anticipate changing somebody's mind in the future. It's much better to bet on somebody you already agree with, to make sure that they're in the right position to make decisions that are more likely than not going to satisfy you and your interests.

Kevin Kosar:

That brings to mind something that appears in your book on revolving door lobbying: this idea of lobbying being not just an offensive maneuver that an organized interest might pursue, but rather a defensive one, a form of insurance to prevent things from happening that you don't want to happen. Something that might be damaging to the industry or interest that you represent. In fact, I've read stories of lobbying firms getting involved in the primary process where candidates are trying to vie for the chance just to run for office. The lobbyist will get involved and try to back the person that they think has the attitudes and the views that best suit their clients. Right?

Timothy LaPira:

Absolutely. Right. In our book on revolving door lobbying, we try to imagine or rethink exactly what is this financial motivation to hire certain kinds of lobbyists. A typical story that has been dominant in the scholarly discussions in the past thirty or forty years is that organizations, particularly corporations that have plenty of cash to go around, will be hiring lobbyists as an investment. They're looking to invest in the policy process with the hopes that that investment will return something in the process. That could be a tax break; it could be reducing cost of regulation; it could be a grant, or even a program in which the federal government is a customer of this corporation. So there's any number of ways that private organizations are going to be extracting largesse out of government.

But the problem with that is that when we observe these things happening, tax breaks for a corporation or new trade rules for a certain product, we only look at the wins. We're not looking at the losses. More often than not, it is going to take ten, twenty years for a given law to become an idea before it becomes a law—if it ever does. What didn't make sense to us is why nowadays it's upwards of four billion dollars a year being spent on the lobbying industry. (Frankly, it's probably twice or three times that amount, but that's another conversation.) But why invest all this money in this process that's turning up not much of anything?

The analogy that we use in our book is that lobbyists themselves are almost like political insurance. I purchase every month a homeowner's insurance in case a tornado comes and hits my house. We've lived in this house for twelve years. We've never seen a tornado. It was still money well spent, because what if the earthquake happened, or what if the flood happened? So, we tried to think about this as, what is the motivation of hiring these expensive lobbyists whose track record is not necessarily great? Because, after all, you're going to have a conflict, you're going to have lobbyists on one side and lobbyists on the other. Even if somebody wins, the other half loses. If we think about lobbying instead as political insurance, then we're able to think about, what exactly are these risks that are being covered when you buy this insurance?

Two main ones that we came up with: one is political uncertainty. After the past few years in American politics, we can certainly see why political uncertainty is something very important. And especially coming from an organizational or corporate perspective where you have to draft a budget, come up with a plan, and hire employees, what CEOs and association leaders want most is some certainty, some way of being able to see into the future—particularly when it comes to, what is the policy landscape going to be for my industry or my interest? They want to have some sense of what's going on. Lobbyists who've worked inside the government are going to be able to offer better insight into what's going on, even if they're not in the room where the decision is being made. Why? Because they used to be in that room. They understand what the cost and benefit analyses are that party leaders and members of Congress and presidents are juggling with all these policy issues and policy conflicts that they come up with. So that's the first thing that they're buying: some insight into what might we be able to expect to happen. I'd rather get hit by a bad policy and know about it ahead of time. If I can't stop it, I'd at least like to know about it ahead of time, so I can plan.

The second major risk is, I don't know if you know this, Kevin, but policy is confusing. If you've ever tried to read a statute or read a law—you need expertise. There are a lot of landmines and unintended consequences and things that can't be anticipated, even when you're pushing for a policy that you want. So the second risk here is policy ambiguity. What it takes is some technical know-how, being able to speak the language of a particular policy domain—now-President Biden once suggested that he never “spoke healthcare.” Policy can be technical, so you might be hiring to cover that real risk of being caught blindsided in the minutia, jargon, and language of the policy process. All organizations have different risks they're going to be trying to cover, and whatever they come up with, the roster of lobbyists they come up with, we might think of as a tailored insurance plan for what it is that they are hoping to accomplish.

Kevin Kosar:

I mentioned your book with Herschel Thomas, which focuses on revolving door lobbying, and which I highly recommend to listeners of this podcast. Revolving door lobbying, which I didn't explain previously, at least not clearly, involves individuals working in Congress as staffers, and then becoming lobbyists, and then sometimes going back to working for Congress. This is the revolving door. Now, how widespread is that phenomenon? And if I may roll in an additional question with that, why do so many legislators and former Hill staffers become lobbyists?

Timothy LaPira:

Easy—money. It pays better. Not just better marginally. A typical staffer on the Hill might be able to expect an earning between three and six times what they earn on the Hill. Members of Congress—last week, we saw former Representative Filemon Vela getting a job at a major law firm, lobbying firm in Washington. Now that he's a partner at this major firm, he's going from earning a healthy sum compared to the most people—a member of Congress is going to earn about $175,000 a year—but that's going to be a drop in the bucket of what he's going to be able to earn as a partner at this major law firm.

So part of it is this motivation of earning more money, but that's not everything. What motivates people to go into Congress,...]]>a22ebcb0-a724-43b4-8adc-6f100a324729Mon, 02 May 2022 06:00:00 -050029:18falsefull2222What does the Congressional Budget Office do? (with Philip Joyce)The topic of this episode is, “What does the Congressional Budget Office do?”

My guest is Professor Philip Joyce. He is the senior associate dean at the University of Maryland School of Public Policy, where he also is a professor of public policy. There, Philip Joyce teaches and researches public budgeting, performance measurement, and intergovernmental relations. He's the author of many publications — far too many to recite, but I will mention one that is germane to today's podcast. Phil is the author of the book The Congressional Budget Office: Honest Numbers, Power, and Policymaking (2011), which makes him an ideal guest to answer the question, “What does the Congressional Budget Office do?”

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation.

I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington, DC.

Professor Joyce, welcome to the podcast.

Philip Joyce:

It's great to be with you.

Kevin Kosar:

Let's start simply. The Congressional Budget Office, AKA, “CBO.” When did Congress create it and why?

Philip Joyce:

CBO was created in 1974. You have to sort of go back in time if you can. Well, probably a lot of people can't go back that far in time that are listening to this podcast, but I can. As you recall, in 1974, at least early 1974, Richard Nixon was president. There was something that became referred to as the imperial presidency, and it essentially involved President Nixon being viewed at least by many people in the Congress as overstepping his bounds, doing things like withholding funds that the Congress had appropriated. So the Congress was trying to reassert its role in the budget process. And it did this by passing something called the Congressional Budget and Empowerment Control Act of 1974, which did basically three things. It created the budget committees; it created the budget resolution, which is the blueprint that the Congress establishes for the budget; and it created CBO.

Why did it create CBO? It created CBO in particular to provide the Congress with its own source of information on the budget and the economy. And why did it need to do that? Because the alternative was to rely on the Office of Management and Budget, which was attached to the president — and not just any president, but Richard Nixon. So the idea that the Congress was going to reassert its role in budgeting, but have to rely on Richard Nixon's OMB for information, just didn't make a lot of sense to a lot of people in the Congress.

The other thing I think it's important to note up front is that according to the law, this was all to be done on a nonpartisan basis, which means that CBO doesn't work for the party in control of the Congress. It works for the Congress as a whole, and tries very hard to make sure that it is responsive to both political parties.

Kevin Kosar:

Yes, I should elaborate a touch further for listeners who are not familiar with this period of time, the early ’70s. After being pushed around and eclipsed by a burgeoning executive branch, one that often didn't play straight and sometimes transcended the law in its activities, Congress decided to reassert itself. It took the Legislative Reference Service and beefed it up into the Congressional Research Service. They created the Office of Technology Assessment. It wrote a new law on budgeting, and of course it created Congressional Budget Office, all as part of a means for it to reassert itself as the first branch.

Now, you started to mention the nature of the agency as nonpartisan, which leads to the next question: The people who work at CBO, are they civil servants or political appointees, or do you have some of both?

Philip Joyce:

Well, this is really an interesting question, because they are not technically civil servants. In fact, this makes them different from many of the employees of the Government Accountability Office, who are actually federal civil servants. The way I describe CBO staff is that CBO staff are to the CBO director as congressional staff are to a member of Congress or a congressional committee. That is, the director of CBO is actually appointed by the Congress. The director of CBO has the power to hire and fire all CBO staff. So, theoretically, a new director of CBO could come in and wipe out the whole place and start over. Now, nobody has ever done that, because it's not in their interest to do that, because you'd be losing a lot of institutional knowledge. But the fact is, they are not technically civil servants. They have their own personnel system. But they very much behave as nonpartisan civil servants would behave. So I would say in that sense, you can think of them as being the equivalent of civil servants, but they're not technically civil servants.

Now, in terms of where they come from, it depends on where you look in CBO. I think there is an impression that CBO must be chock-full of economists, and that there's nobody else but economists in CBO. But that's not really true. It depends on where you look in CBO. The directors of CBO — there have been 10 of them — have almost exclusively been economists. Many of the people in CBO's policy divisions — these are divisions that are organized around long-term economic and budget issues — are PhD economists. But on the other hand, the Budget Analysis Division (and we'll talk more I think in a little while about what they do), which is the largest in CBO and the main division supporting the annual budget process — that's mostly made up of staff who have master's degrees in fields like public policy or public administration, or sometimes are people that have significant experience in the executive branch and then move to CBO.

Kevin Kosar:

Just to paint a contrast for our listeners, when you think about the individuals who staff, say, an individual member of the House of Representatives' personal office, those are folks who frequently get their jobs because they are members of the political party, and they are individuals who've worked on that member's campaign or perhaps worked in other congressional offices — frequently for a member of the same party. So their skillsets are much more in the political realm. CBO, that's not the basis for hiring people there, whether you are good at politics, right?

Philip Joyce:

Yeah, that's right. Well, not only that, it's probably a detriment if you're really good at politics. Or, I would say, to put it differently, if you have a sort of strong political bent — CBO is not the place to go if you're a policy advocate, because you're not really there to advocate policy. You're really there to think objectively about what the effects of policy are.

As you know, I wrote a book on CBO, and one of the interesting things that I found was that early on, when Alice Rivlin, who was the first director, who is a giant of public service, was setting the place up — and I think the way the place behaves today is very much still in her image — they had to make a decision early on: Were they going to accept references from members of Congress for CBO staff? Were they going to accept members of Congress basically saying, There's this great guy in my district or this great woman in my district, I think you should hire them? They decided that they were not going to refuse to accept those, but they also were not going to be driven by them. They wanted to communicate very clearly to the Congress that they got to decide who worked at CBO based on merit and qualifications, not based on whether they happen to be attached to some important member of Congress or not.

Kevin Kosar:

Yeah. I think that was a really prescient, smart insight by Alice Rivlin, because ultimately CBO is funded by Congress. And if the impression spreads in Congress that it's basically a tool of the majority, well, that pretty much throws into doubt anything that CBO publishes, and invites retribution. And I should add as little footnote, in the early 1990s, there was an accusation leveled at the Government Accountability Office, the General Accounting Office, that it was too close to the majority. The majority had long been Democrats. And when Republicans took the majority in 1994, GAO suffered a 25% budget cut. So, again, that was a very smart, foresighted move by Alice Rivlin.

Now, let’s get down to the nitty gritty. How does CBO interface with Congress and the budget process? What is its role or roles?

Philip Joyce:

Well, there are three main things I would point to. The first is that twice a year, CBO does a baseline economic and budget forecast. And what is that? It's a projection of what would...]]>The topic of this episode is, “What does the Congressional Budget Office do?”

My guest is Professor Philip Joyce. He is the senior associate dean at the University of Maryland School of Public Policy, where he also is a professor of public policy. There, Philip Joyce teaches and researches public budgeting, performance measurement, and intergovernmental relations. He's the author of many publications — far too many to recite, but I will mention one that is germane to today's podcast. Phil is the author of the book The Congressional Budget Office: Honest Numbers, Power, and Policymaking (2011), which makes him an ideal guest to answer the question, “What does the Congressional Budget Office do?”

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation.

I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington, DC.

Professor Joyce, welcome to the podcast.

Philip Joyce:

It's great to be with you.

Kevin Kosar:

Let's start simply. The Congressional Budget Office, AKA, “CBO.” When did Congress create it and why?

Philip Joyce:

CBO was created in 1974. You have to sort of go back in time if you can. Well, probably a lot of people can't go back that far in time that are listening to this podcast, but I can. As you recall, in 1974, at least early 1974, Richard Nixon was president. There was something that became referred to as the imperial presidency, and it essentially involved President Nixon being viewed at least by many people in the Congress as overstepping his bounds, doing things like withholding funds that the Congress had appropriated. So the Congress was trying to reassert its role in the budget process. And it did this by passing something called the Congressional Budget and Empowerment Control Act of 1974, which did basically three things. It created the budget committees; it created the budget resolution, which is the blueprint that the Congress establishes for the budget; and it created CBO.

Why did it create CBO? It created CBO in particular to provide the Congress with its own source of information on the budget and the economy. And why did it need to do that? Because the alternative was to rely on the Office of Management and Budget, which was attached to the president — and not just any president, but Richard Nixon. So the idea that the Congress was going to reassert its role in budgeting, but have to rely on Richard Nixon's OMB for information, just didn't make a lot of sense to a lot of people in the Congress.

The other thing I think it's important to note up front is that according to the law, this was all to be done on a nonpartisan basis, which means that CBO doesn't work for the party in control of the Congress. It works for the Congress as a whole, and tries very hard to make sure that it is responsive to both political parties.

Kevin Kosar:

Yes, I should elaborate a touch further for listeners who are not familiar with this period of time, the early ’70s. After being pushed around and eclipsed by a burgeoning executive branch, one that often didn't play straight and sometimes transcended the law in its activities, Congress decided to reassert itself. It took the Legislative Reference Service and beefed it up into the Congressional Research Service. They created the Office of Technology Assessment. It wrote a new law on budgeting, and of course it created Congressional Budget Office, all as part of a means for it to reassert itself as the first branch.

Now, you started to mention the nature of the agency as nonpartisan, which leads to the next question: The people who work at CBO, are they civil servants or political appointees, or do you have some of both?

Philip Joyce:

Well, this is really an interesting question, because they are not technically civil servants. In fact, this makes them different from many of the employees of the Government Accountability Office, who are actually federal civil servants. The way I describe CBO staff is that CBO staff are to the CBO director as congressional staff are to a member of Congress or a congressional committee. That is, the director of CBO is actually appointed by the Congress. The director of CBO has the power to hire and fire all CBO staff. So, theoretically, a new director of CBO could come in and wipe out the whole place and start over. Now, nobody has ever done that, because it's not in their interest to do that, because you'd be losing a lot of institutional knowledge. But the fact is, they are not technically civil servants. They have their own personnel system. But they very much behave as nonpartisan civil servants would behave. So I would say in that sense, you can think of them as being the equivalent of civil servants, but they're not technically civil servants.

Now, in terms of where they come from, it depends on where you look in CBO. I think there is an impression that CBO must be chock-full of economists, and that there's nobody else but economists in CBO. But that's not really true. It depends on where you look in CBO. The directors of CBO — there have been 10 of them — have almost exclusively been economists. Many of the people in CBO's policy divisions — these are divisions that are organized around long-term economic and budget issues — are PhD economists. But on the other hand, the Budget Analysis Division (and we'll talk more I think in a little while about what they do), which is the largest in CBO and the main division supporting the annual budget process — that's mostly made up of staff who have master's degrees in fields like public policy or public administration, or sometimes are people that have significant experience in the executive branch and then move to CBO.

Kevin Kosar:

Just to paint a contrast for our listeners, when you think about the individuals who staff, say, an individual member of the House of Representatives' personal office, those are folks who frequently get their jobs because they are members of the political party, and they are individuals who've worked on that member's campaign or perhaps worked in other congressional offices — frequently for a member of the same party. So their skillsets are much more in the political realm. CBO, that's not the basis for hiring people there, whether you are good at politics, right?

Philip Joyce:

Yeah, that's right. Well, not only that, it's probably a detriment if you're really good at politics. Or, I would say, to put it differently, if you have a sort of strong political bent — CBO is not the place to go if you're a policy advocate, because you're not really there to advocate policy. You're really there to think objectively about what the effects of policy are.

As you know, I wrote a book on CBO, and one of the interesting things that I found was that early on, when Alice Rivlin, who was the first director, who is a giant of public service, was setting the place up — and I think the way the place behaves today is very much still in her image — they had to make a decision early on: Were they going to accept references from members of Congress for CBO staff? Were they going to accept members of Congress basically saying, There's this great guy in my district or this great woman in my district, I think you should hire them? They decided that they were not going to refuse to accept those, but they also were not going to be driven by them. They wanted to communicate very clearly to the Congress that they got to decide who worked at CBO based on merit and qualifications, not based on whether they happen to be attached to some important member of Congress or not.

Kevin Kosar:

Yeah. I think that was a really prescient, smart insight by Alice Rivlin, because ultimately CBO is funded by Congress. And if the impression spreads in Congress that it's basically a tool of the majority, well, that pretty much throws into doubt anything that CBO publishes, and invites retribution. And I should add as little footnote, in the early 1990s, there was an accusation leveled at the Government Accountability Office, the General Accounting Office, that it was too close to the majority. The majority had long been Democrats. And when Republicans took the majority in 1994, GAO suffered a 25% budget cut. So, again, that was a very smart, foresighted move by Alice Rivlin.

Now, let’s get down to the nitty gritty. How does CBO interface with Congress and the budget process? What is its role or roles?

Philip Joyce:

Well, there are three main things I would point to. The first is that twice a year, CBO does a baseline economic and budget forecast. And what is that? It's a projection of what would happen if you let current laws continue. It's basically trying to give the Congress an idea of where they are starting from. Before they begin to make policy in a given Congress, what would happen if you did nothing, or what would happen if you just let current laws continue? That usually goes out 10 years, and it's based on an independent economic forecast that is done by CBO.

So, again, CBO is not going to just rely on the economic forecast that's coming out of a given administration, because that administration often has an incentive to say that whatever policies they're going to pursue are going to make the economy much better. And that's not really CBO's job. CBO's job is to basically say — What they tend to do is gravitate toward the average of what private sector economists would say is going to happen, without regard to saying that the president's policies are going to make things much better. And then once a year, actually, as a part of that general role, they do a long term, and when I say long term, I mean 30 to 40 year budget projection. That's important given the continued imbalance of revenues and spending, and given the fact that over time, that's likely to get worse. For example, the latest one of these showed the deficit growing to more than 200% of GDP by 2040. Now, that is not a prediction that that is going to happen. That is simply a projection that if you didn't do anything, then this is what we see as the future. And then it is up to the Congress to decide, do they want to do anything or not? For better or worse, the answer is often no, but what they are doing is they're taking that CBO analysis as a starting point.

The second big thing that CBO does is policy analyses of particular policies that are of long run interest to the Congress. So you can imagine, for example, something like, what would happen if we went to a single payer health system, or what is the future trajectory of the defense budget in terms of military preparedness? And they're answering questions like, what is the effect of those things on the budget and the economy? Another good example is climate change. You take climate change and you say, okay, based on what people say is going to happen or is likely to happen in climate change, what does that mean in terms of the future for the budget and the economy?

Then finally, and I'm leaving this for last, but I think it's probably the most important one, and it's the one that gets the most attention, is that CBO is required by law to do cost estimates of every bill that is reported out of a congressional committee. It does not do cost estimates of every bill that is introduced, because that is way too much work. And as you know, most of those bills don't go anywhere. But once a bill actually has enough traction that it has actually come out of a committee, the idea is that before the House or the Senate would vote on such a bill on the floor of House or the Senate, they ought to know how much someone thinks it's going to cost. And that someone is CBO.

Before CBO, it's not that there weren't any cost estimates, it's that there weren't any objective cost estimates. A committee that reported a bill out that thought that bill was the greatest thing since sliced bread would have every incentive to downplay the cost of that bill. And if you looked at the cost estimates coming out of the administration, lo and behold, if the administration liked an idea, it said the cost was low, and if it didn't like an idea, it said the cost was high. So the idea of having CBO do this is to have somebody that has no real dog in that fight giving some kind of an objective estimate of what the bill would cost.

Kevin Kosar:

Speaking of CBO's scoring of bills, it's sometimes controversial. For example, there's a bill that was scored recently, a purportedly postal reform bill to help the Postal Service’s finances. And there are folks carping at the calculations there of what the score is.

Why is it that CBO scores are sometimes controversial? And as a follow-up, has the method, whatever that is, for scoring — has it evolved over time, or is that just written down in formulaic or set in stone somewhere?

Philip Joyce:

Well, it's not that hard to understand why CBO’s cost estimates are controversial. People have strong views on these bills, and a CBO cost estimate can actually make it harder or easier to pass a bill. People complain about the CBO cost estimates — I equate it to a batter who strikes out who decides to blame the umpire. I mean, the umpire might be wrong, but also, you might have actually taken strike three. So, I think that you have to take with a grain of salt and you have to ask yourself the question, What's the motivation of the people who are criticizing CBO over a particular bill? Now, if they start to get into the specific methodology — there are certainly times when people have a point when they say, Look, CBO made the following assumptions and we think these assumptions are wrong, and we have data that backs up why we think that they're wrong. That to me is more credible than just effectively saying, They said this costs money and I don't think it does. Well, okay. But if you don't have any evidence, then basically you're just saying you didn't like the answer.

CBO cost assessments can be quite influential. When CBO said, for example, back in 1993, that the Clinton health plan would add to the deficit, when the Clinton administration said that it would cut the deficit — that was viewed as one of the main reasons that the Clinton health plan ended up not going anywhere. Now the truth is, given the magnitude of something like a healthcare reform, the difference between those two estimates was not actually that great. But it was very important politically that the administration had said, This is going to cut the deficit, and then CBO said, No, it's going to add to the deficit.

Now, on your question on the methodology, I think the methodology has changed over time in ways that make it more sophisticated. There are many more and many better models for projecting spending on things like Social Security, Medicare, farm programs, and the like, and CBO is always looking at how it can refine its estimating strategies. One specific thing that happened is that since 1995, CBO has actually provided estimates of the cost of legislation on state, local, and tribal governments under the Unfunded Mandates Reform Act.

The final thing I'll mention in terms of CBO’s methodology — and I don't think this is well understood — is that it is as important to CBO to be consistent as it is to be right, in the sense that they don't want to use different assumptions for scoring bills that basically try to do the same thing that are introduced by different people. They want to make it clear what their assumptions are, and then they want to make sure that when they are scoring bills, all bills that would affect healthcare, for example, that they're using a common set of assumptions so that they're not disadvantaging one bill versus another simply because they're using different assumptions.

Kevin Kosar:

Right. I've also heard from congressional staff that I've worked with that CBO scores can be doubted just because they can be difficult to understand. A score on a particular bill may only be two pages, and it has a whole bunch of numbers, but where those numbers came from is not immediately clear. But the other reason is that if it's a piece of legislation dealing with mandatory spending, it can have consequences for the probability of whether the legislation can make it through the House and the Senate. It's not just, oh, there's a bit of red ink attached to this proposal. It actually triggers parliamentary hurdles of sorts. Is that correct?

Philip Joyce:

Yes, it is correct. One of the things that CBO cost estimates do is that they can trigger, for example, in certain cases, and it's probably too arcane to go into all the specifics, but I think it's important to note that there are points of order that can be raised in both the House and the Senate that are triggered by the fact that a CBO cost estimate might cause a provision, for example, of the budget resolution to be exceeded. So it really is true that the Congress in many cases, for either political or procedural reasons, is trying to hit a particular target. And if it misses that target, even by a little bit, according to the CBO cost estimate, that can cause the bill to have to at a minimum go back and be redone.

Kevin Kosar:

That of course, unfortunately, would pull this third-party umpire-type figure, the CBO, into controversies, because it's viewed because of these parliamentary procedures that it's the CBO’s fault that the bill is going to face a higher climb through the legislature.

All right, one last question. CBO has been around for about 50 years. Does it need any alterations or updates?

Philip Joyce:

Well, it’s kind of useful to talk about a couple of things that CBO has been criticized for. First, there are some people, and I think this is sort of implied by the end of your last question, who think that CBO is not very transparent about how it does its estimates. Now, I think CBO is probably more transparent than a lot of people think that it is, but CBO has actually spent a lot more time and effort over I would say the last 10 years trying to be more transparent about its cost estimates, the methodology that goes into its cost estimates, and publishing separate reports that say, this is how we go about doing estimates for, for example, healthcare programs. So I think that's a place where CBO is continuing to work.

The second criticism is that CBO pays too much attention to costs and not enough to benefits. That...]]>dd962101-955f-467d-84ad-da553e2f2028Mon, 04 Apr 2022 06:00:00 -050023:30falsefull2121Should we expand the membership of the House of Representatives? (with Yuval Levin)The topic of this episode is, “Should we expand the membership of the House of Representatives?”

My guest is Yuval Levin, who is the director of Social, Cultural, and Constitutional Studies at the American Enterprise Institute. Dr. Levin is the founder and editor of the journal National Affairs, a senior editor at The New Atlantis, a contributing editor at National Review, and a contributing opinion writer at the New York Times. And, particularly germane to the subject of today's discussion, Yuval recently coauthored a report on the topic of expanding the membership of the House of Representatives. You'll find a link to that report in the program notes.

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation.

I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington, DC.

Yuval, welcome to the podcast.

Yuval Levin:

Thank you very much for having me.

Kevin Kosar:

The founders set the number of senators at two per state, but they did not set a constitutional cap on the number of legislators in the House. Why is that?

Yuval Levin:

Well, the nature of the Congress came out of a very complicated set of compromises at the Constitutional Convention. If you look at James Madison's notes on the convention, well over half of the debate was actually about this question of how representation should work. And ultimately, in some obvious ways, the large states wanted to be represented by population, the small states wanted each state to have equal membership, and the decision was made, “Let's do both.” So the two houses do have intentionally very, very different forms of representation: for the states and for the people. The House of Representatives is meant to represent the public. And so each member represents roughly the same number of people. State delegations are based on the size of their populations. The difference between the two houses in that sense is very intentional, and intended to create these kind of overlapping majorities that include both forms of representation.

Kevin Kosar:

All right, so the Senate is supposed to represent the states; the House, the people. Now, we have 435 members in the House, and we've had 435 for a long time. When was that number set?

Yuval Levin:

The House of Representatives at first grew after every census. From the very beginning, from the 1790 census all the way through the 19th century, with a single exception after 1840 for complicated reasons, the House grew as the population grew. That continued to happen until after the 1910 census, at which point there was the beginning of a normal debate in the House about how much should we grow and in what way this time. That debate fell apart, and the House ultimately at that point simply didn't act. And the size of the House remained as it was after 1910. Then afterward, after the 1920 census, the House actually actively decided to no longer grow after every census and passed a law that set a cap at 435, which was the size it had reached.

For most of the 19th century, the House of Representatives grew by a formula that allowed states to avoid losing seats. So as the population grew, new seats were distributed in such a way that states with larger populations could grow, but no state would lose seats. That formula worked for political reasons, it made mathematical sense, and that's how things were growing until 1910. And we've been stuck at a 1910 level. So that has meant that as the country has grown—the population of the United States is almost three times what it was in 1910—the House of Representatives has not grown. Each member is now left representing about three times as many people as members did a century ago.

Kevin Kosar:

Yes, in the report that you helped coauthor, I recall seeing that in 1910 the average representative had 210,583 constituents. Today, seeing as there's 330 million plus Americans, there's about 761,000 constituents for each member of the House, which is a colossal number. Which leads to the next question: What would be the benefits of expanding the House?

Yuval Levin:

That question points to exactly where you just pointed to first and foremost, which is, we've reached a place where each member of the House now represents a massive number of people, about three quarters of a million people. At the beginning of our constitutional system, each member of the House represented just about a little over 30,000 people. That number went to 60,000 pretty quickly and gradually grew over time. But the idea originally—James Madison originally proposed a constitutional amendment that would cap that number at 60,000, so that the House would grow so that no member represented more than 60,000 people. We actually reached that number by 1830, and had that amendment been in place, we would now have several thousand members of the U.S. House, which I have to say, I'm glad we don't. But there's a balance to be struck. At this point, members represent such a vast population that it's very hard for them to be representative in something like the same way that members of the House were intended to be.

So that's one very important first reason why an expansion might make sense: It would allow for members to represent a smaller number of people and therefore hopefully to represent them better. At the same time, there are also reasons to think that expanding the House could address some of the challenges that we face now when it comes to the way the House is run and to some of the problems that we find in our political culture. The proposal that we make in the report you mentioned would expand the House all at once by 150 members (which is roughly where we would be now if we had continued following that formula from the 19th century every 10 years since 1910) and then grow the House after that by that formula after every census. That kind of sudden increase by 150 members could provide for a moment of reform in the House, a moment where it seems like things could change and where members might be inclined to think about what other rules should change. How should the budget process change? How should the committee system change? There are a lot of reasons now to try to rethink some of these things. And there are a lot of members who want to, but there's a kind of standing inertia that holds them back from believing that changes like that are even within their power. A shot in the arm that they would get by having 150 new members could provide for a moment of reform, both within the House and in the states, for reforms of how members are elected, for experimenting with things like ranked-choice voting or other things. All of those could be advanced by a reform that gives that kind of shot in the arm.

And you know, the reform itself I think of as just constitutional maintenance. It's work that should have been done this whole time that we haven't done and that we should be doing now. And then it could have these other secondary benefits, by encouraging reform-mindedness in general when it comes to how we think about the problems of the House.

Kevin Kosar:

I should mention to listeners that one of the complaints one hears from representatives in the House is that they feel grossly overscheduled—that they'll be in one committee meeting, but then they have to get up and leave and move to another committee gathering or a subcommittee gathering, or some such like that. Having to wear so many hats at once leads to them being in a position where they're doing everything, but not doing anything particularly well. Having more representatives, arguably, could mean having more committees and perhaps more eyes engaged in oversight.

That noted, are there downsides to expanding the House's membership? I imagine a speaker of the House would have some apprehension at this prospect.

Yuval Levin:

First of all, as a conservative, I have to say, I think there are downsides to any change we make, and we should also expect that there will be downsides that we do not anticipate. That's certainly true when it comes to political reform. When you change the rules, things don't always happen the way you expect. It's hard to know exactly what the results would be, and we should always be aware of that when proposing reforms.

There are also some downsides that are pretty predictable. A larger House could be more unwieldy—if you think part of the problem with the House is that it is unwieldy, which, as you say, the speaker of the House at any given time surely thinks. But anyone watching the House have trouble passing a budget or find itself breaking down might think, well, the answer to this can't be just more of]]>The topic of this episode is, “Should we expand the membership of the House of Representatives?”

My guest is Yuval Levin, who is the director of Social, Cultural, and Constitutional Studies at the American Enterprise Institute. Dr. Levin is the founder and editor of the journal National Affairs, a senior editor at The New Atlantis, a contributing editor at National Review, and a contributing opinion writer at the New York Times. And, particularly germane to the subject of today's discussion, Yuval recently coauthored a report on the topic of expanding the membership of the House of Representatives. You'll find a link to that report in the program notes.

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation.

I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington, DC.

Yuval, welcome to the podcast.

Yuval Levin:

Thank you very much for having me.

Kevin Kosar:

The founders set the number of senators at two per state, but they did not set a constitutional cap on the number of legislators in the House. Why is that?

Yuval Levin:

Well, the nature of the Congress came out of a very complicated set of compromises at the Constitutional Convention. If you look at James Madison's notes on the convention, well over half of the debate was actually about this question of how representation should work. And ultimately, in some obvious ways, the large states wanted to be represented by population, the small states wanted each state to have equal membership, and the decision was made, “Let's do both.” So the two houses do have intentionally very, very different forms of representation: for the states and for the people. The House of Representatives is meant to represent the public. And so each member represents roughly the same number of people. State delegations are based on the size of their populations. The difference between the two houses in that sense is very intentional, and intended to create these kind of overlapping majorities that include both forms of representation.

Kevin Kosar:

All right, so the Senate is supposed to represent the states; the House, the people. Now, we have 435 members in the House, and we've had 435 for a long time. When was that number set?

Yuval Levin:

The House of Representatives at first grew after every census. From the very beginning, from the 1790 census all the way through the 19th century, with a single exception after 1840 for complicated reasons, the House grew as the population grew. That continued to happen until after the 1910 census, at which point there was the beginning of a normal debate in the House about how much should we grow and in what way this time. That debate fell apart, and the House ultimately at that point simply didn't act. And the size of the House remained as it was after 1910. Then afterward, after the 1920 census, the House actually actively decided to no longer grow after every census and passed a law that set a cap at 435, which was the size it had reached.

For most of the 19th century, the House of Representatives grew by a formula that allowed states to avoid losing seats. So as the population grew, new seats were distributed in such a way that states with larger populations could grow, but no state would lose seats. That formula worked for political reasons, it made mathematical sense, and that's how things were growing until 1910. And we've been stuck at a 1910 level. So that has meant that as the country has grown—the population of the United States is almost three times what it was in 1910—the House of Representatives has not grown. Each member is now left representing about three times as many people as members did a century ago.

Kevin Kosar:

Yes, in the report that you helped coauthor, I recall seeing that in 1910 the average representative had 210,583 constituents. Today, seeing as there's 330 million plus Americans, there's about 761,000 constituents for each member of the House, which is a colossal number. Which leads to the next question: What would be the benefits of expanding the House?

Yuval Levin:

That question points to exactly where you just pointed to first and foremost, which is, we've reached a place where each member of the House now represents a massive number of people, about three quarters of a million people. At the beginning of our constitutional system, each member of the House represented just about a little over 30,000 people. That number went to 60,000 pretty quickly and gradually grew over time. But the idea originally—James Madison originally proposed a constitutional amendment that would cap that number at 60,000, so that the House would grow so that no member represented more than 60,000 people. We actually reached that number by 1830, and had that amendment been in place, we would now have several thousand members of the U.S. House, which I have to say, I'm glad we don't. But there's a balance to be struck. At this point, members represent such a vast population that it's very hard for them to be representative in something like the same way that members of the House were intended to be.

So that's one very important first reason why an expansion might make sense: It would allow for members to represent a smaller number of people and therefore hopefully to represent them better. At the same time, there are also reasons to think that expanding the House could address some of the challenges that we face now when it comes to the way the House is run and to some of the problems that we find in our political culture. The proposal that we make in the report you mentioned would expand the House all at once by 150 members (which is roughly where we would be now if we had continued following that formula from the 19th century every 10 years since 1910) and then grow the House after that by that formula after every census. That kind of sudden increase by 150 members could provide for a moment of reform in the House, a moment where it seems like things could change and where members might be inclined to think about what other rules should change. How should the budget process change? How should the committee system change? There are a lot of reasons now to try to rethink some of these things. And there are a lot of members who want to, but there's a kind of standing inertia that holds them back from believing that changes like that are even within their power. A shot in the arm that they would get by having 150 new members could provide for a moment of reform, both within the House and in the states, for reforms of how members are elected, for experimenting with things like ranked-choice voting or other things. All of those could be advanced by a reform that gives that kind of shot in the arm.

And you know, the reform itself I think of as just constitutional maintenance. It's work that should have been done this whole time that we haven't done and that we should be doing now. And then it could have these other secondary benefits, by encouraging reform-mindedness in general when it comes to how we think about the problems of the House.

Kevin Kosar:

I should mention to listeners that one of the complaints one hears from representatives in the House is that they feel grossly overscheduled—that they'll be in one committee meeting, but then they have to get up and leave and move to another committee gathering or a subcommittee gathering, or some such like that. Having to wear so many hats at once leads to them being in a position where they're doing everything, but not doing anything particularly well. Having more representatives, arguably, could mean having more committees and perhaps more eyes engaged in oversight.

That noted, are there downsides to expanding the House's membership? I imagine a speaker of the House would have some apprehension at this prospect.

Yuval Levin:

First of all, as a conservative, I have to say, I think there are downsides to any change we make, and we should also expect that there will be downsides that we do not anticipate. That's certainly true when it comes to political reform. When you change the rules, things don't always happen the way you expect. It's hard to know exactly what the results would be, and we should always be aware of that when proposing reforms.

There are also some downsides that are pretty predictable. A larger House could be more unwieldy—if you think part of the problem with the House is that it is unwieldy, which, as you say, the speaker of the House at any given time surely thinks. But anyone watching the House have trouble passing a budget or find itself breaking down might think, well, the answer to this can't be just more of these people. There surely are ways that the House would become harder to manage and to govern if it was larger.

There are also people who argue that the House would actually become more partisan if there were more members. In fact, there's a kind of argument along these lines from James Madison himself, in writing in the Federalist about the size of the House. Madison does think that the House shouldn't be so small that each member represents a massive number of people. But he also worries about the House getting too big. His worry on that front is that if it's so big that no individual member can really exercise much influence, then it would just be run by its leaders. At that point, the House becomes a force for aristocracy. Then the leaders become so powerful that they just manage these party coalitions, and no single member really makes a difference. That's certainly a concern you hear on this front.

I think the way to think about these problems is to think about scale. There's expanding the House, and there's expanding the House. If we took the House to 2,000 members, I think it would certainly be very hard to run. And it's probably true that you would just find it divided along party lines in very crude ways. On the other hand, you can think about parliaments and congresses and state legislatures that are larger than the House of Representatives, but function pretty well. If we're talking about adding 150 members to the House, that would take us to 585 members. That's still smaller than the House of Commons in the United Kingdom, which functions pretty well as a representative parliament. You can certainly still imagine that kind of House working more or less in the way it does now, while addressing some of the challenges it faces. So I think what this calls for is thinking about scale. The House has to be a face-to-face venue for bargaining. It has to be a place where members actually engage with each other, and not just a venue for mob action. But at the same time, the House is probably too small to be meaningfully representative. So we have to find a better balance.

Kevin Kosar:

When you look at the House today, one thing you’ll most certainly see is that there are any number of members who don't seem particularly interested in governing. As you've pointed out, they seem more interested in engaging in performative politics. One might object that expanding the House of Representatives is going to just lead to another 75 Democrats, another 75 Republicans who want to engage in performative politics, who will make the place worse. What do you say, or your coauthors say, to that objection?

Yuval Levin:

Certainly I think we should not imagine that this reform—or any reform—would be a silver bullet that would solve all of the House's problems all at once. And I certainly agree that it's not in itself a solution to that problem, which is a challenge that confronts the House because of the kinds of incentives that its members face and because of the way that its work is structured. At this point, the way to be prominent really isn't to devote yourself to committee work and become an expert in some important area of policy and rise through the ranks, but rather is to be a cable news personality, or a social media personality, and get known that way, and use the House as a platform for building your own brand.

I think that to address that would require some of the other reforms that I mentioned at the outset, that I hope might become a little bit more thinkable if the House grows. Ways of changing the work of the committees so that they might be more relevant—for example, giving committees a little bit of floor time, so that committee work actually mattered and members didn't have the sense that, well, whatever we do here is just going to get undone by the speaker when it's time to actually fire with real bullets. Changes to the schedule that allow members to spend more time together in Washington working on legislation. Some reforms of the ways in which the leadership is structured and how it interacts with members.

There are a lot of ideas out there. What we're lacking in a lot of these fronts is the will to do it, or the sense that it could be done. And I think expanding the House, as I said, could help that. But certainly by itself, I don't think that it necessarily addresses the problem of the performative member. I don't think that it aggravates that problem. I don't think it makes it worse. I don't think that it's the fact that the House is large that creates that problem. It exists in some ways in a bigger way in the Senate, where precisely because members have a bigger platform, because there are fewer of them, they're more inclined to think of themselves as working on a platform and building a following.

But I think you have to see these things as all connected. In a sense, the question of reforms of our system has to be addressed to the nature of the problems that system faces, and this challenge of how members spend their time is one of them, but by no means the only one.

Kevin Kosar:

Yes. Well, you hinted at this a bit earlier: the politics surrounding expansion of the House membership. The report notes this was a normal thing that Congress did for a very long time, and then a little over a century ago, it just stopped expanding the House. One thing that readers of the report might find interesting is that when you look at the numbers, it seemed expanding the House of Representatives is not going to advantage one party or the other, and is not going to affect who ends up as president. With those two things set aside, what then is stopping people from taking this seriously on Capitol Hill? Or is it the case that they are so caught up in worrying about the political calculations that they just don't believe it and just won't act?

Yuval Levin:

It's worth saying a word about that first point, the partisan valence point. You can imagine ways that a larger house might, as you say, affect not only the partisan control of Congress, but also the presidency, because each state's electoral votes are determined by the size of its congressional delegation. So if states have more seats in the House, they're also more weighty in the Electoral College. And increasing the size of the House—you can imagine ways that it could also empower one party or the other, give it a better shot at controlling Congress.

We ran a lot of models in the course of producing this report, and the outcome of those, which is also supported by now quite a lot of preexisting political science, is that there's not a particular partisan valence to this reform. It doesn't make it more likely that one party or the other would end up in control of the House. And it also doesn't make it more likely that one party or the other would be more likely to win presidential elections. If this change had been made before prior presidential elections, if the House were 150 seats larger in any presidential election year since 1972, which is the range of years that we ran the model through, the outcomes of all of those presidential elections would've been the same as they were with a bigger House. We did find that in 2000 there would've been a tie, and it would've been thrown to the House, but the House would've chosen George W. Bush, because that's the way the state delegations worked at that time. So, we would've ended up with the same presidents we have. And control of Congress would not swing in one direction or another by a statistically meaningful degree. So that's not the issue here.

So, as you say, why are members reticent? I think there are a couple of reasons. One is a general sense that just having more members in a sense devalues the currency of each member, that you become less important in the larger House as a single member of the House. I think that there's also a sense that a change like this is unpredictable. By definition, members of the House at the moment are people who benefit from the existing system. They've succeeded under these rules, and you're asking them to change the rules. So it takes some persuasion to get them to a place where they think that they wouldn't be disserved by those new rules.

One way that we've tried to address that problem is by thinking about the incentives they face. And this is not exactly our idea, this is the formula that was used to expand the House throughout the 19th century, very largely for this reason. The formula says that no state loses seats in the House after the census, that states can only gain or remain where they are. That's enormously appealing to existing members, because members always confront the possibility that their state would lose some seats, there would be redistricting, maybe their party doesn't control the state legislature, and they get redistricted out of their existing seat. This kind of reform offers them the promise of avoiding that risk so that at least there would still be the same number of members from their state. And by continuing to expand, you offer a kind of opportunity for creating more political offices for people to reach for, rather than fewer.

Nonetheless, I would say this is an idea that takes some persuading. The notion that the House should grow, that the House should change in some dramatic way, has to combat the existing standing inertia that members face. They worry about it, they think, "Hmm, I'm doing okay now. I don't know how I'd be doing under that system, so I'm not so sure." We're certainly starting, if not from scratch, then almost from scratch in talking to members about this idea. We've done since the report came out a fair amount of talking to members about it. There's some openness to it among members who are inclined to think about congressional reform, but I think a lot of members have never considered it. And when they first hear...]]>9efd42e4-35db-4313-8e03-de989eb7811dMon, 07 Mar 2022 06:00:00 -050022:42falsefull2020What is wrong and right with the House of Representatives? (with Dan Lipinski)The topic of this episode is, “What is wrong and right with the House of Representatives?”

My guest is Dan Lipinski, who is uniquely positioned to answer this question. He was a member of Congress, and represented Illinois’ third district from 2005 to 2021. He also is a political scientist — he got his doctorate from Duke University in 1998. And if that is not enough, Dan is a former congressional staffer and a socially conservative Democrat. You don’t find many of those anymore. You can see Dan’s recent writings on his website, DanLipinski.com, which includes an essay for The Atlantic titled “The House of Representatives is failing American democracy.”

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation.

I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington, DC.

Sir, welcome to the program.

Dan Lipinski:

It's good to be with you, Kevin.

Kevin Kosar:

Let's start this conversation on a positive note. You served in the House of Representatives for 16 years. What accomplishments are you most proud of?

Dan Lipinski:

Well, if I had to pick out one bill most proud of — I actually was able to pass about 17 bills in my 16 years in Congress — but the one that I spent the most time on, maybe the longest lasting impact, is the American Manufacturing Competitiveness Act. The requirement of that bill is every four years, the administration needs to create a strategy to promote American manufacturing. We could do a whole podcast on just what it took through five years to get this bill passed. We finally changed it to go to a different committee. In the end, after we spent five years working very hard, first it got attached to one bill, which we strategized to do, and then that bill unexpectedly got attached to an omnibus bill at the end of the year. After five long years of working on it, I was actually shocked when I saw it show up in an omnibus bill. Like I said, we could do a whole podcast on that and the strategy, and all the pitfalls, and what it took to get it through the House and finally get it through the Senate, get the president on board. It took a long time. But the first one was done in the second year of President Trump, and the second one now needs to be done early next year by the Biden Administration. So it's a plan to promote American manufacturing, kind of like the Quadrennial Defense Review, which the Department of Defense every four years needs to look at the defense department and put out a plan for the next four years.

Kevin Kosar:

So, you're a legislator who got things done. But as you just mentioned, it sure wasn't easy, and it sure didn't follow the script that many of us learned in Schoolhouse Rock all those years ago about how a bill becomes a law. This gets us to my next question. Let's talk about what's wrong with the House of Representatives — why it's so hard to get things done. In an article for The Atlantic, you state that the House, whether controlled by Democrats or Republicans, now acts as if it were a unicameral legislature in a parliamentary system, rather than acknowledging that it is only one of two legislative chambers in a presidential system. Wow. Say more about that. Why is this happening?

Dan Lipinski:

Well, first of all, it's a shame the listeners can't see video, because I just held up my little Bendable Bill figure, who I did bring to the House floor a few times. The speech that I gave, my wrap-up speech at the end of my time in Congress, I brought Bill out there and I talked about this. The problem that we have right now — you know, Schoolhouse Rock, “I'm Just a Bill,” everyone should see that. It does the basics of how a bill becomes a law. It goes through committee in one chamber, the committee goes to the House floor or the Senate floor, and it has to go over to the other chamber, it passes, and then if it passes that second chamber, it has to go to the president for a signature. Well, it doesn't work quite as smoothly as it shows up in that video now. And it's a shame, because it is supposed to work the way that that video shows. The video shows a legislator having constituents come to him with an idea. And they say, There are ought to be a law. And he says, You're right, there ought to be a law. And he writes up a piece of legislation, and then it goes through the process. And the committee is supposed to — there’s Democrats and Republicans on every committee — they're supposed to debate it, amend it, decide if they want to pass it. Same thing happens on the floor. And it's all portrayed in this video as Democrats and Republicans, both parties, are working on perfecting legislation, deciding if they want to pass it.

Well, unfortunately, right now in the House it is so much controlled by the speaker. Everything — I shouldn't say everything. Every major piece of legislation is controlled out of the speaker's office. And so when I say that the House works like a unicameral parliament, if we had a unicameral parliament, first of all, if we had a parliamentary system, we'd have a prime minister who'd be the executive who was chosen by the members of Parliament. We don't have that. Our country was founded specifically not to be that way. We have a presidential system. The president is chosen separately from the House or the Senate. They do not choose him. We oftentimes have divided government. Divided government is when one party does not control everything. If it’s a unified government, one party controls the House, the Senate, and the presidency. Otherwise, it's a divided government. Over the last 41 years, we have had divided government more than 30 years.

And the Senate filibuster makes it even more difficult. You need 60 votes in the Senate. There's been one year in the past 41 where one party had the majority in the House, had 60 votes in the Senate, and had the presidency. Unfortunately, what the House does, instead of looking at it and saying, Well, in order to get anything done, we need to get the other party on board, at least some members of the other party on board and supportive — instead, what the House does is basically passes legislation only with the votes of members of the majority party. The minority party is completely left out. Now, if a couple members of the minority party want to vote for the legislation when it gets to the House floor, the majority party's happy. But they don't want to rely on — the speaker does not want to rely on votes from the minority party.

So the House passes bills that are crafted by members of its own party, and that usually almost always makes them more extreme than what is mainstream in the country. Maybe it's the middle of that party ideologically, which is either, if the Democrats have the majority, too far to the left, if Republicans have the majority, too far to the right of what mainstream America will support. But the House does this because the speaker’s focused on the next election more than anything else. And trying to pass things out of the House is sort of an ideal for the party. So the House passes these bills and they go to the Senate, and the Senate says, We can't pass that, we cannot get the 60 votes to overcome a filibuster. Even right now with the reconciliation bill, the House passed the bill, the Build Back Better, Biden's agenda. The House passed the bill that, even under reconciliation, where you only need 50 votes in the Senate — and there are 50 Democrats in the Senate — that bill that the House passed cannot pass the Senate. So what usually happens — we'll see what happens with reconciliation. This is what happened with the infrastructure bill. The House passed an infrastructure bill earlier this year. The Senate basically threw that bill in the trash and a bipartisan group of senators got together and said, We have our own infrastructure bill. That's nice you passed yours, but if anything's going to become law, it's going to be ours. This bipartisan group of senators passed the bill in the Senate. It took a few months, the House Democrats finally decided, Okay, we'll swallow that bill because President Biden wants to get this done. And they passed the Senate bill. The House had no input whatsoever in that infrastructure bill.

That is what has happened so often over the last 10 years. Major legislation that becomes law has almost always come out of the Senate, and usually the House has no input whatsoever. So basically, the Senate has become the only house of Congress when it comes to passing major legislation, making laws on major...]]>The topic of this episode is, “What is wrong and right with the House of Representatives?”

My guest is Dan Lipinski, who is uniquely positioned to answer this question. He was a member of Congress, and represented Illinois’ third district from 2005 to 2021. He also is a political scientist — he got his doctorate from Duke University in 1998. And if that is not enough, Dan is a former congressional staffer and a socially conservative Democrat. You don’t find many of those anymore. You can see Dan’s recent writings on his website, DanLipinski.com, which includes an essay for The Atlantic titled “The House of Representatives is failing American democracy.”

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation.

I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington, DC.

Sir, welcome to the program.

Dan Lipinski:

It's good to be with you, Kevin.

Kevin Kosar:

Let's start this conversation on a positive note. You served in the House of Representatives for 16 years. What accomplishments are you most proud of?

Dan Lipinski:

Well, if I had to pick out one bill most proud of — I actually was able to pass about 17 bills in my 16 years in Congress — but the one that I spent the most time on, maybe the longest lasting impact, is the American Manufacturing Competitiveness Act. The requirement of that bill is every four years, the administration needs to create a strategy to promote American manufacturing. We could do a whole podcast on just what it took through five years to get this bill passed. We finally changed it to go to a different committee. In the end, after we spent five years working very hard, first it got attached to one bill, which we strategized to do, and then that bill unexpectedly got attached to an omnibus bill at the end of the year. After five long years of working on it, I was actually shocked when I saw it show up in an omnibus bill. Like I said, we could do a whole podcast on that and the strategy, and all the pitfalls, and what it took to get it through the House and finally get it through the Senate, get the president on board. It took a long time. But the first one was done in the second year of President Trump, and the second one now needs to be done early next year by the Biden Administration. So it's a plan to promote American manufacturing, kind of like the Quadrennial Defense Review, which the Department of Defense every four years needs to look at the defense department and put out a plan for the next four years.

Kevin Kosar:

So, you're a legislator who got things done. But as you just mentioned, it sure wasn't easy, and it sure didn't follow the script that many of us learned in Schoolhouse Rock all those years ago about how a bill becomes a law. This gets us to my next question. Let's talk about what's wrong with the House of Representatives — why it's so hard to get things done. In an article for The Atlantic, you state that the House, whether controlled by Democrats or Republicans, now acts as if it were a unicameral legislature in a parliamentary system, rather than acknowledging that it is only one of two legislative chambers in a presidential system. Wow. Say more about that. Why is this happening?

Dan Lipinski:

Well, first of all, it's a shame the listeners can't see video, because I just held up my little Bendable Bill figure, who I did bring to the House floor a few times. The speech that I gave, my wrap-up speech at the end of my time in Congress, I brought Bill out there and I talked about this. The problem that we have right now — you know, Schoolhouse Rock, “I'm Just a Bill,” everyone should see that. It does the basics of how a bill becomes a law. It goes through committee in one chamber, the committee goes to the House floor or the Senate floor, and it has to go over to the other chamber, it passes, and then if it passes that second chamber, it has to go to the president for a signature. Well, it doesn't work quite as smoothly as it shows up in that video now. And it's a shame, because it is supposed to work the way that that video shows. The video shows a legislator having constituents come to him with an idea. And they say, There are ought to be a law. And he says, You're right, there ought to be a law. And he writes up a piece of legislation, and then it goes through the process. And the committee is supposed to — there’s Democrats and Republicans on every committee — they're supposed to debate it, amend it, decide if they want to pass it. Same thing happens on the floor. And it's all portrayed in this video as Democrats and Republicans, both parties, are working on perfecting legislation, deciding if they want to pass it.

Well, unfortunately, right now in the House it is so much controlled by the speaker. Everything — I shouldn't say everything. Every major piece of legislation is controlled out of the speaker's office. And so when I say that the House works like a unicameral parliament, if we had a unicameral parliament, first of all, if we had a parliamentary system, we'd have a prime minister who'd be the executive who was chosen by the members of Parliament. We don't have that. Our country was founded specifically not to be that way. We have a presidential system. The president is chosen separately from the House or the Senate. They do not choose him. We oftentimes have divided government. Divided government is when one party does not control everything. If it’s a unified government, one party controls the House, the Senate, and the presidency. Otherwise, it's a divided government. Over the last 41 years, we have had divided government more than 30 years.

And the Senate filibuster makes it even more difficult. You need 60 votes in the Senate. There's been one year in the past 41 where one party had the majority in the House, had 60 votes in the Senate, and had the presidency. Unfortunately, what the House does, instead of looking at it and saying, Well, in order to get anything done, we need to get the other party on board, at least some members of the other party on board and supportive — instead, what the House does is basically passes legislation only with the votes of members of the majority party. The minority party is completely left out. Now, if a couple members of the minority party want to vote for the legislation when it gets to the House floor, the majority party's happy. But they don't want to rely on — the speaker does not want to rely on votes from the minority party.

So the House passes bills that are crafted by members of its own party, and that usually almost always makes them more extreme than what is mainstream in the country. Maybe it's the middle of that party ideologically, which is either, if the Democrats have the majority, too far to the left, if Republicans have the majority, too far to the right of what mainstream America will support. But the House does this because the speaker’s focused on the next election more than anything else. And trying to pass things out of the House is sort of an ideal for the party. So the House passes these bills and they go to the Senate, and the Senate says, We can't pass that, we cannot get the 60 votes to overcome a filibuster. Even right now with the reconciliation bill, the House passed the bill, the Build Back Better, Biden's agenda. The House passed the bill that, even under reconciliation, where you only need 50 votes in the Senate — and there are 50 Democrats in the Senate — that bill that the House passed cannot pass the Senate. So what usually happens — we'll see what happens with reconciliation. This is what happened with the infrastructure bill. The House passed an infrastructure bill earlier this year. The Senate basically threw that bill in the trash and a bipartisan group of senators got together and said, We have our own infrastructure bill. That's nice you passed yours, but if anything's going to become law, it's going to be ours. This bipartisan group of senators passed the bill in the Senate. It took a few months, the House Democrats finally decided, Okay, we'll swallow that bill because President Biden wants to get this done. And they passed the Senate bill. The House had no input whatsoever in that infrastructure bill.

That is what has happened so often over the last 10 years. Major legislation that becomes law has almost always come out of the Senate, and usually the House has no input whatsoever. So basically, the Senate has become the only house of Congress when it comes to passing major legislation, making laws on major issues. Otherwise, what happens more often is just gridlock. The House and Senate, even when controlled by same party, can't agree. There's a lot of issues that are left to side, immigration being one of the most obvious ones. That's not even being talked about right now, when we have Democrats controlling the House very narrowly, controlling the Senate, and have the White House.

Kevin Kosar:

It's a very peculiar thing that leadership in the House operates under this premise that if they just pass things on party line votes, that somehow this will work out well for them in the next election. I would think that for the most part, what we've seen over the past 30 years is that this is not going to create a lasting majority, because partisan control of the House has pinballed back and forth at a rate that's just unprecedented, since at least the late 19th century. There's not much stability. Voters are not rewarding majorities in the House for this behavior. So this is not working. This doesn't make a whole lot of sense. It prompts the question, all right, what can members of the House do to fix the chamber?

Dan Lipinski:

Well, first of all, it seems that what the strategy has become for both parties is, all right, when we don't have the control of both houses of Congress and the White House, we're just going to work to try to get control of all three branches, both houses, and then get exactly what we want done, get that done. The rest of the time we're going to play defense. And there has been talk this year amongst Democrats that, well, this is our opportunity. We're probably going to lose the House anyway, so let's pass everything we can and try to get as much as we possibly can into law right now, before we lose the majority in the House and then we as Democrats can't get anything done. I think there are some members of Congress, many members of Congress, who feel that way.

There is almost a sense that when there's divided government, nothing gets done and nothing's going to get done, which is really foreign to the way that I always thought about it. I always thought after the election — Every two years there's a federal election and you get all 435 House seats, you get a third of the Senate, every four years it's the presidential election. And people would come to DC after the election and say, Okay, who has majority in the House? Who has the majority in the Senate? Who's the president? What party? And they'd say, Okay, what can we work on over the next year and a half? What can we work on together to try to make things better in this country? And then we'll spend six months campaigning and try to do the best we can for our party in the next election.

Now, every two years after the federal election, everyone comes to DC, takes a look around, sees who has the majority where, who has the White House, and each side says, Well, what can we do in the next election? What can we do in the next two years to get control of everything, or maybe more control of everything? Maybe you have unitary government and say, Well, how can we get even more members, so we don't have to deal with — How do we overcome the filibuster? How do we get enough senators to overcome the filibuster? It's all about the next election, so we can do as a party what we want to do. What we need is members of Congress who come in and say, We are there to get things done. Members of Congress who will do what I said used to be the way things work: Accept this is where we are right now. This is who's in the House, who's in the Senate, who has the control, who's in the White House. And what can we work on together? There has to be an attitude change, that everything is not partisan. Right now everything — more and more I saw over my 16 years in Congress, more issues became partisan that had never been considered partisan before. So we need that.

And in the House, you need to change the rules. Members have given up, a lot of the House has given up a lot of their power to their party leaders, mostly for the speaker. The speaker has some majority rules in the House. That means a speaker controls the legislation to a large extent that gets to the House floor. But even the minority party has given up power to their party leader who says, Okay, you need to let me make the decision so that we can win the next election and get into the majority. And the only way we can do this is working together, and the only way we can work together is if you give me the power.

Kevin Kosar:

I think there are a lot of us who feel that the reforms of the early seventies, which evolved even further over the eighties and nineties, that took away power from committee chairs and slid more of it to the speaker's office — while they were understandable at their time, the long term effect has been to create a lot of negative incentives, as you know all too well. Doing honest oversight, crafting bipartisan legislation within committee, is a lot of work. And the question is, why bother doing all that work if it's not going to go anywhere? If you can’t actually change the law to make programs work better, or make a new law to tackle new problems, it kind of undercuts those incentives.

Now, I want to follow up. You mentioned the importance of changing the rules. Listeners may recall that every two years, the House of Representatives is kind of reborn. And when it's reborn, it has to readopt rules. And that, as you and others have shown, is an opportunity. I wonder if you could just educate readers a little bit about that?

Dan Lipinski:

Well, the first day that the House is in session every two years after the election, the new Congress comes in and has to adopt rules for how the body's going to operate. Each party caucus also — Democrats call it a caucus in the House, Republicans call it a conference — each party also adopts rules for how their party is going to operate. Now, back in 2018, I was a member of the House Problem Solvers Caucus, which is a bipartisan group of members evenly divided between Republicans and Democrats in the House. In the summer of 2018, we said, There's going to be a new speaker coming in, no matter what. Republicans were in the majority, Paul Ryan was the House speaker, he said he was stepping down. So we knew there was going to be a new speaker, and we thought, this is an opportunity to say, Here, these are rules changes that we want to open up the process, to give committees more power, to give individual members more power to legislate. And so the election comes, Democrats took the majority in the House. So a new speaker has to be elected as they do every two years, but this is someone coming in that wasn't speaker in the last Congress. So Nancy Pelosi's the Democratic nominee. And there was a group of us, eight or nine of us, who said, Okay, we're not going to vote for Nancy Pelosi for speaker unless she agrees to change some of the rules and give more power to the committees and individual members. The problem is, when you have someone who's already a leader (Nancy Pelosi had been speaker; after Democrats lost the majority, she remained as minority leader), there was a real — It's difficult to take power away from a leader, because you fear reprisal. I'll be honest, there was a fear that if anyone went to Nancy Pelosi and said, I'm not going to vote for you unless you change the rules and give up some of your power, that that's going to be held against them. And so we wound up getting a few small rule changes that were made. Nothing near what we had been asking for, nothing near what I had wanted. But we were able to get a few rules changes.

But that's what's going to have to happen. You go back in history, the revolt against Speaker Cannon, and we're talking about a century ago — Members are going to have to say, Well, wait a minute. We want to have more power. We don't want the speaker controlling everything. Unfortunately, there are fewer and fewer members of the House, at least, who know, who remember, who have been there when they actually legislated. There are a lot of people who run for Congress now who have no interest in being a legislator. You see everything that's going on. What gets all the attention? The tweets get a whole lot more attention [than] anything that gets passed. So we need to have legislators, and members who want to be legislators, and members who say, Hey, I'm here to represent my constituents before I represent my party. It's not all about the party. I'm a loyal party member, but my constituents elected me and I'm here to represent them. And that's what Madison, when the Constitution was written — that was the intention. He believed, the framers of the Constitution believed, that was what was necessary to have a good government and a government that people accepted as legitimate. They saw that they had representatives who were actually voicing their constituents’ opinions, not just the party agenda. I think we need to figure out how we're going to get back to that.

Kevin Kosar:

Absolutely, absolutely. Changing the rules of the House is not easy. It takes individual courage, the ability to, as you say, overcome the fear of reprisal. It's an exercise in overcoming a collective action problem. And it also requires legislators who are sufficiently in the know, who can see a possibility beyond the sort of bleak partisan landscape that presently exists.

Dan Lipinski, former legislator and a scholar of Congress. Thank you so much for sharing your wisdom and insights.

Dan Lipinski:

It's good to be with you, Kevin.

Kevin Kosar:

Thank you for listening to Understanding Congress, a podcast of the American Enterprise Institute. This program was produced by Elayne Allen and hosted by Kevin Kosar. You can subscribe to Understanding Congress via Stitcher, iTunes, Google Podcasts, and TuneIn. We hope you will share this...]]>94148e79-f142-4503-9119-c68f3e32d4b7Mon, 07 Feb 2022 06:00:00 -050021:54falsefull1919What differences do women make in Congress? (with Michele Swers)The topic of this episode is, “What differences do women make in Congress?”

My guest is Michele Swers, professor of American government at Georgetown University. She studies Congress, congressional elections, and women in politics. She has written a lot of research articles and book chapters, and also is the author of two books on women in Congress. The first one is titled The Difference Women Make: The Policy Impact of Women in Congress. The second book is titled Women in the Club: Gender and Policy Making in the Senate. And, I would be remiss if I did not mention, she is the coauthor of Women and Politics: Paths to Power and Political Influence.

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation.

I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington, DC.

It is to Professor Swers we now turn to learn about women in Congress. Professor Swers, welcome to the program.

Michele Swers:

Thank you, Kevin. Thanks so much for having me. I'm a big fan of your podcast.

Kevin Kosar:

Oh, thanks for saying. Let's start with a really simple question. How many women are in Congress today?

Michele Swers:

So, right now you have 120 women in the House. Eighty-nine are Democrats, 31 are Republicans. And in the Senate, you have 24 women, 16 Democrats, 8 Republicans. From those numbers, you can tell that there are more women who are Democrat than Republicans. And that's because the number of women really started to increase in 1992, and people called that the Year of the Woman, but it was really the Year of the Democratic Women. It was Democrats who elected more women at that time. They had a pretty good year that year. Even in years where Republicans had good years, like 1994, they elected more women, but not a lot more women.

In 2018, Democrats elected another Year of the Woman, but they elected more women of color. So there was a lot of attention to that. And that's when I'm sure your listeners know that Alexandria Ocasio-Cortez comes into the picture and Ayanna Pressley and some others. And then in 2020, Republicans did have a very good year. They went from 13 women to 31 in the House of Representatives, and they elected a greater mix of women and minorities. It was a good year from their perspective.

But you can tell though that by these numbers, when Democrats are in charge, women have more access to the majority and seats of power. So women are about 40 percent of the Democratic caucus in the House, and that means they have some seniority level. In the House, on the Democratic side, anyway, committee assignments work based on seniority, so you have more women who have access to be chairs. So Rosa DeLauro, head of Appropriations, or Carolyn Maloney as the Oversight chair, Maxine Waters at Financial Services — important committees.

On the other hand, for Republicans, women are only about 15 percent of their caucus. They've had a woman in the conference chair position for a very long time — obviously turnover with different women. Most recently, Liz Cheney was pushed out, and Elise Stefanik is now the conference chair. But they don't have as many women with seniority. There are not as many women who will reach those committee chairmanships when Republicans are in charge.

Right now you do have Kay Granger at Appropriations. She's the ranking member, so maybe she'll become the chair if Republicans take over in 2022. And Virginia Foxx at Education and Labor, she would need a waiver, so she would like a waiver. And if she doesn't get it, I think Elise Stefanik wants the position. But you don't have that many Republican women with seniority. There's also Cathy McMorris Rodgers, and she could end up becoming chair of Energy and Commerce if things go in the majority.

A lot of the women that came in were elected in 2020, and so they're not very senior. It'll be a few years before they could develop into those leadership positions if they stay in Congress.

Kevin Kosar:

If I can just do a quick follow up on this question — you were highlighting some partisan differences. One thing I observed after the last election was, you had Kevin McCarthy, the head of the House Republicans, on Twitter, bragging about how the GOP had brought women into the party. You’ve studied this stuff for so long. Is this new, the GOP and the House bragging about getting more women, Republican women, into the chamber?

Michele Swers:

Yes and no. Republicans don't like to play what they call identity politics. They don't want to have policy that is necessarily focused on particular groups. But they do value having diversity in the ranks, because they know that Democrats particularly are going to hit them on this. Democrats have been talking about Republicans as being engaged in a war on women for many years, and it's much easier to push back on that if you have more diverse faces in your caucus. Republicans also recognize that the country is changing, and you have more minorities in the population — more Latinos, particularly, they want to reach out to. And so they do want to elect a more diverse set of members of Congress. And when they do, they are very likely to push them to the front.

Where they differ from Democrats, though, is diversity is not as big of a value within the party for elections. On the Democratic side, for a long time, you have an infrastructure of groups like EMILY's List and training organizations which are designed to reach out to women to try to recruit them to run for office and fund them. Republicans don't have that deep bench because it's not something that their donors tend to respond to. So the organizations they have, something called VIEW PAC, Winning For Women. Elise Stefanik really pushed this through her E-PAC, which is her leadership PAC. Those are relatively new, and they don't raise the sums of money that you see being raised by EMILY's List, because their donor base is just not as responsive to those kind of calls.

Kevin Kosar:

Excellent. Thank you for that. One thing I've come across in the political science literature is that a number of scholars argue, quite persuasively from what I have seen, that women are more effective in Congress. Now, measuring legislative effectiveness is a vexing, complicated thing — we'll put that out there. But, what's your take on the topic?

Michele Swers:

I'm in agreement with you that it depends on how you're measuring effectiveness and what you mean by effectiveness. I think you can certainly say that there's evidence that women are more active, perhaps more productive. So you have people that look at things like bringing home money to the district and projects to the district. Lazarus and Steigerwalt, in their book Gendered Vulnerability, and Anzia and Berry in their article, they both find that women are more likely to get federal dollars for projects back at home. So if you consider that to be effectiveness, then they're more effective in that way.

People who look at bill sponsorship and co-sponsorship, like Craig Volden, Alan Wiseman, Dana Wittmer, and others, do find that women sponsor more bills, they co-sponsor more bills. So they're more active in that way. But there's mixed evidence about how far those bills get. Some of that depends on what are the bills about. So if the bills are about issues like healthcare, those are pretty contentious issues that have a hard time advancing in Congress generally. They find that women, when they're in the minority party, maybe because there's more of a history of consensus building when you're in the minority, that women are passing more of their bills as minority party members. But they don't pass more of their bills as majority party members. This difference gets more stark as we have more polarization in Congress and that consensus-oriented leadership style is less valued.

Kevin Kosar:

Now, legislative effectiveness is an important topic. But that's not the only thing that matters when we think about legislators in Congress or women in Congress. Your first book, The Difference Women Make, analyzed the House of Representatives. What did you find?

Michele Swers:

I wrote that book right after — the focus of it was right after that first Year of the Woman, the 1992 elections, when you could have more of an analysis that was more systematic rather than anecdotal interviews. And what I was trying to determine is, there's an assumption in political science that members of Congress, their number one concern is to get reelected. We know that from David Mayhew's The topic of this episode is, “What differences do women make in Congress?”

My guest is Michele Swers, professor of American government at Georgetown University. She studies Congress, congressional elections, and women in politics. She has written a lot of research articles and book chapters, and also is the author of two books on women in Congress. The first one is titled The Difference Women Make: The Policy Impact of Women in Congress. The second book is titled Women in the Club: Gender and Policy Making in the Senate. And, I would be remiss if I did not mention, she is the coauthor of Women and Politics: Paths to Power and Political Influence.

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation.

I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington, DC.

It is to Professor Swers we now turn to learn about women in Congress. Professor Swers, welcome to the program.

Michele Swers:

Thank you, Kevin. Thanks so much for having me. I'm a big fan of your podcast.

Kevin Kosar:

Oh, thanks for saying. Let's start with a really simple question. How many women are in Congress today?

Michele Swers:

So, right now you have 120 women in the House. Eighty-nine are Democrats, 31 are Republicans. And in the Senate, you have 24 women, 16 Democrats, 8 Republicans. From those numbers, you can tell that there are more women who are Democrat than Republicans. And that's because the number of women really started to increase in 1992, and people called that the Year of the Woman, but it was really the Year of the Democratic Women. It was Democrats who elected more women at that time. They had a pretty good year that year. Even in years where Republicans had good years, like 1994, they elected more women, but not a lot more women.

In 2018, Democrats elected another Year of the Woman, but they elected more women of color. So there was a lot of attention to that. And that's when I'm sure your listeners know that Alexandria Ocasio-Cortez comes into the picture and Ayanna Pressley and some others. And then in 2020, Republicans did have a very good year. They went from 13 women to 31 in the House of Representatives, and they elected a greater mix of women and minorities. It was a good year from their perspective.

But you can tell though that by these numbers, when Democrats are in charge, women have more access to the majority and seats of power. So women are about 40 percent of the Democratic caucus in the House, and that means they have some seniority level. In the House, on the Democratic side, anyway, committee assignments work based on seniority, so you have more women who have access to be chairs. So Rosa DeLauro, head of Appropriations, or Carolyn Maloney as the Oversight chair, Maxine Waters at Financial Services — important committees.

On the other hand, for Republicans, women are only about 15 percent of their caucus. They've had a woman in the conference chair position for a very long time — obviously turnover with different women. Most recently, Liz Cheney was pushed out, and Elise Stefanik is now the conference chair. But they don't have as many women with seniority. There are not as many women who will reach those committee chairmanships when Republicans are in charge.

Right now you do have Kay Granger at Appropriations. She's the ranking member, so maybe she'll become the chair if Republicans take over in 2022. And Virginia Foxx at Education and Labor, she would need a waiver, so she would like a waiver. And if she doesn't get it, I think Elise Stefanik wants the position. But you don't have that many Republican women with seniority. There's also Cathy McMorris Rodgers, and she could end up becoming chair of Energy and Commerce if things go in the majority.

A lot of the women that came in were elected in 2020, and so they're not very senior. It'll be a few years before they could develop into those leadership positions if they stay in Congress.

Kevin Kosar:

If I can just do a quick follow up on this question — you were highlighting some partisan differences. One thing I observed after the last election was, you had Kevin McCarthy, the head of the House Republicans, on Twitter, bragging about how the GOP had brought women into the party. You’ve studied this stuff for so long. Is this new, the GOP and the House bragging about getting more women, Republican women, into the chamber?

Michele Swers:

Yes and no. Republicans don't like to play what they call identity politics. They don't want to have policy that is necessarily focused on particular groups. But they do value having diversity in the ranks, because they know that Democrats particularly are going to hit them on this. Democrats have been talking about Republicans as being engaged in a war on women for many years, and it's much easier to push back on that if you have more diverse faces in your caucus. Republicans also recognize that the country is changing, and you have more minorities in the population — more Latinos, particularly, they want to reach out to. And so they do want to elect a more diverse set of members of Congress. And when they do, they are very likely to push them to the front.

Where they differ from Democrats, though, is diversity is not as big of a value within the party for elections. On the Democratic side, for a long time, you have an infrastructure of groups like EMILY's List and training organizations which are designed to reach out to women to try to recruit them to run for office and fund them. Republicans don't have that deep bench because it's not something that their donors tend to respond to. So the organizations they have, something called VIEW PAC, Winning For Women. Elise Stefanik really pushed this through her E-PAC, which is her leadership PAC. Those are relatively new, and they don't raise the sums of money that you see being raised by EMILY's List, because their donor base is just not as responsive to those kind of calls.

Kevin Kosar:

Excellent. Thank you for that. One thing I've come across in the political science literature is that a number of scholars argue, quite persuasively from what I have seen, that women are more effective in Congress. Now, measuring legislative effectiveness is a vexing, complicated thing — we'll put that out there. But, what's your take on the topic?

Michele Swers:

I'm in agreement with you that it depends on how you're measuring effectiveness and what you mean by effectiveness. I think you can certainly say that there's evidence that women are more active, perhaps more productive. So you have people that look at things like bringing home money to the district and projects to the district. Lazarus and Steigerwalt, in their book Gendered Vulnerability, and Anzia and Berry in their article, they both find that women are more likely to get federal dollars for projects back at home. So if you consider that to be effectiveness, then they're more effective in that way.

People who look at bill sponsorship and co-sponsorship, like Craig Volden, Alan Wiseman, Dana Wittmer, and others, do find that women sponsor more bills, they co-sponsor more bills. So they're more active in that way. But there's mixed evidence about how far those bills get. Some of that depends on what are the bills about. So if the bills are about issues like healthcare, those are pretty contentious issues that have a hard time advancing in Congress generally. They find that women, when they're in the minority party, maybe because there's more of a history of consensus building when you're in the minority, that women are passing more of their bills as minority party members. But they don't pass more of their bills as majority party members. This difference gets more stark as we have more polarization in Congress and that consensus-oriented leadership style is less valued.

Kevin Kosar:

Now, legislative effectiveness is an important topic. But that's not the only thing that matters when we think about legislators in Congress or women in Congress. Your first book, The Difference Women Make, analyzed the House of Representatives. What did you find?

Michele Swers:

I wrote that book right after — the focus of it was right after that first Year of the Woman, the 1992 elections, when you could have more of an analysis that was more systematic rather than anecdotal interviews. And what I was trying to determine is, there's an assumption in political science that members of Congress, their number one concern is to get reelected. We know that from David Mayhew's Electoral Connection. So if that's the case, they just need to be responsive to the district. Otherwise, they get voted out. So it should not matter if I elect a man or a woman, a Latino, an African-American, it doesn't matter, right? It's just what does the district want, and they have to be responsive to that. So my question was, if I elect women, do I get any different policy priorities? Do they focus on different policies? Because any district can really accept any number of policies, but you just have to take positions and votes within a certain space.

So that's what the book was really focused on. I looked at basically gender differences in legislative activities: sponsorship, co-sponsorship, what were you doing in committee, what did you push for on the floor, those kinds of things. And I found that generally, the more something is directly connected to policy consequences for women, so when we think of things like women's rights issues, that the women in Congress were more engaged, they were more involved. They were more likely to push things like paid family leave. And we see that now, the paid family leave in Biden’s legislation. Kirsten Gillibrand had this Family Act that's partially based on Rosa DeLauro in House, Patty Murray in the Senate. So women were more likely to do something like a paid family leave. A Violence Against Women Act was very much also pushed by a lot of the women in Congress, issues related to pay equity, the Lilly Ledbetter Fair Pay Act, things like that later on. So you saw the most difference on issues that you could connect to consequences for women directly.

On issues that we kind of associate with women, more social welfare type policies, education, general healthcare, there's not really that much difference between men and women in their level of activism. When you did see difference, it was when women were in the majority party, because then they have access to the agenda and your bills could move somewhere. So you saw some more difference when women were in the majority.

Kevin Kosar:

Alright. We just heard a bit about the House. Let's talk about the Senate. Conveniently, your book Women in the Club focuses on the higher chamber. What did you find there?

Michele Swers:

When I was doing my work on the Senate, I wanted to focus on those differences related to the women's rights issues that we expect, but I also wanted to branch out and see if women brought a different perspective based on their experiences, their life experiences as women, to other areas. And so I wanted to also look at defense policy, which is an area where people think that maybe women are less qualified. And I wanted to look at judicial nominations.

In the Senate, members can do more. In the House, you're really constrained by your committee position. But in the Senate, they get multiple committee positions and they can really do what they want on the floor. So it gave more leeway to be able to see, so where would they focus their attention and what kind of perspective would they bring?

In the area of judicial nominations, what I found was, this is an area that's really constrained by party politics. An individual senator is expected to support the nominees of their president if they're of the president's party. At the time that I'm looking, the nominations are George W. Bush's nominations to replace Sandra Day O'Connor, the first woman who was ever on the Supreme Court. You would expect here that gender would be a primary focus, so maybe some of the Republican women would be reluctant to support somebody who doesn't support women's rights in the way that Sandra Day O'Connor did, or something like that. Or they would be pushing for a female nominee. And they did push a little bit for a female nominee, but that, of course, is George W. Bush's decision as president.

What I saw was that the Democratic women, when they speak on the floor about what's the reasons that I'm supporting, whether it was John Roberts or Samuel Alito at the time, the Democratic women compared to the Democratic men were more likely to focus on Alito or Roberts' positions on women's rights — and on women’s rights beyond abortion politics, so things like pay equity. But on the Republican side, the Republican women down the line were fully supportive of Roberts' and Alito's nominations, and were not going to differ, even though they were getting a lot of pressure, particularly the moderate women like Susan Collins and Olympia Snowe, to vote against Roberts and Alito because of their presumed positions on Roe v. Wade (which of course is now before the court).

What was interesting about it was, it also goes to current times when people were pressuring Susan Collins to vote against Kavanaugh. She did a very similar thing. Generally what she would do is, as a Republican, you are expected to support your president's nominee, and you really don't get thanked by the other side if you don't support your president's nominee, but you most certainly get punished by your side if you don't support your president's nominee. So she will go and talk to the nominee, get reassurance that they support stare decisis, and then take that to mean that they would not overturn Roe v. Wade. She'll announce that she gets this assurance. And then she goes ahead and supports the nominee. Even at the same time, during the same time period, she was voting against the Partial-Birth Abortion Ban, which was going through Congress, which then Roberts and Alito will later uphold. So it's separate. Legislation is separate from nominations, even in a really gendered context like that.

When I was looking at defense policy, here I was interested in, people assume women are more pacifist than men. So I looked at things like how were they voting and speaking about the Iraq War. And they were not more pacifist, they were just the same. What matters is ideology. So the more liberal you were, the more likely you were to be opposed to the Iraq War, and that was true for men and for women.

When it came to the type of policies you were supporting, a lot of what happens in Congress and in the Senate is not so much the higher level thinking about strategic planning as it is protecting the defense priorities in my state. So if you're from Virginia, you really like aircraft carriers and those kind of military ships and things, and you're going to protect that, and you're going to protect those bases. So a lot of what the members do is really focused on that. In Maine, they also have military ships there and building of military ships, so they're interested in protecting that. But where there was gender difference is, the women were more interested in promoting benefits for the military. So what you think of as social welfare issues — health benefits, education benefits, benefits for veterans. The women were more likely to sponsor and co-sponsor in that area, social welfare benefits for the military.

And then the third area I looked at was women's rights policies. Very similar to the House, I did find that the women in the Senate were more likely to be active on and promote issues related to women's rights. The Lilly Ledbetter Fair Pay Act was something that was going through at that time, and the reauthorization of the Violence Against Women Act. And the women, both the Democrats and the Republicans, were more active.

On the Republican side — for Democrats it’s easier because their political base really supports these things. So this is something they're personally interested in, and it pays political dividends with their base. For Republicans, it's a little bit trickier. For them, if they're more moderate, it's something maybe the base doesn't support. So they have to decide, how much do I want to get involved in this kind of thing?

For conservatives, these kinds of issues are not really central to Republican Party politics. So if I'm spending a lot of time and energy and political capital on something like Violence Against Women, I'm having to not spend time on other things that may be more personal priorities to me or might get me more sway within the Republican caucus. So they have to be careful about what they want to do.

And there's a lot of attention to Republican female senators. So if I'm going to go and vote against, let's say, the Violence Against Women Act, I'm going to get a lot more attention than a Republican man is going to get. And I don't really enjoy being portrayed as a woman who's not supporting women. So that was a conflict that these Republican women have to deal with. And you still see it today.

So right now there's not a lot of action on the Violence Against Women Act because there's other things going on, but they are in a reauthorization period. And it's Joni Ernst that Republicans have taxed with trying to reauthorize this. That process is at a standstill, but Ernst is cooperating with Gillibrand to try to push more legislation to how the military deals with sexual assault and sexual harassment. That's part of the Defense Authorization bill that is theoretically being debated in the Senate right now, although a little bit stalled as they try to come to agreement over amendments.

Kevin Kosar:

Follow up question on women in the Senate. The Senate for much of its history was a boys' club, an old boys' club. Presently, women are clearly still a distinct minority in the Senate. Yet, by my light, it feels as if women's power has peaked. Not that it won't go higher and higher — I assume that it will — but women have been hugely influential. Names come to mind like Sinema, Murkowski, Collins, Snowe. It seems like so much media coverage about what's going to happen on...]]>bf8a2a5d-417d-48ae-8874-3443d7fcdb50Mon, 03 Jan 2022 06:00:00 -050026:02falsefull1818What is the role of the Senate’s majority leader? (with James Wallner)The topic of this episode is, "What is the role of the Senate’s majority leader?"

My guest is Dr. James Wallner. He is a senior fellow at the R Street Institute and a lecturer at Clemson University. He is the author of three books on the Senate, including one titled On Parliamentary War: Partisan Conflict and Procedural Change in the U.S. Senate (2017). James has worked in the Senate, and also is a cohost of the Politics in Question podcast. 

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation.

I'm your host, Kevin Kosar, and I'm a resident scholar at the American Enterprise Institute, a think tank in Washington, DC.

It is to James Wallner that we turn to learn about the role of the majority leader. James, welcome to the program.

James Wallner:

Thanks for having me.

Kevin Kosar:

First question. Chuck Schumer is the current majority leader in the Senate. How did he get that job? What's the process? Did all the senators get together and vote for him or some other candidate?

James Wallner:

Well, that's how it works in the House, where you nominate candidates to be the speaker of the House. Nancy Pelosi is our current speaker. Democrats and Republicans on the floor of the House all cast a vote for the speaker, and the nominee with the most votes becomes the speaker. And so the majority party, in effect, selects the speaker. In the Senate, it's a similar process, but slightly different, because they're not electing a speaker, they're not electing a presiding officer. The majority leader, Chuck Schumer, is merely the floor leader of the party with the most votes — so in this case, the Democrats. And it’s 50–50 right now, split evenly between Democrats and Republicans. The vice president is a Democrat, so assuming that the vice president would cast her vote with the Democrats on a tie vote — under the Constitution, she gets to do that — that means that Chuck Schumer has more votes behind him than the leader of the Republican Party, Mitch McConnell, has behind him. So he is the majority leader, McConnell is the minority leader. The way they're chosen is simply by their party colleagues in secret ballot, in a meeting that usually happens right after the election, typically in December following an election before the new Congress meets.

Kevin Kosar:

You underlined a point there about the difference between leadership in the House and leadership in the Senate. It sounds, at least ostensibly, that a speaker may make a claim to be the head of the whole of the House, whereas in the Senate, it sounds like the majority leader is just the partisan leader.

James Wallner:

Absolutely. Look, party leaders in the Senate have institutional tasks, too. They help to schedule legislation. They do a bunch of different things that institutional leaders in the House, like the speaker, also do. And the speaker is also a partisan leader, in the fact that she is selected by her majority party caucus and really works to advance the agenda of the majority party. So they go hand in hand. But there is no Senate leader. I'm reminding myself of Woodrow Wilson, where he says, "There's no leader in the Senate," and that's something that's really frustrating him. And this is what makes the Senate great. Because there's no one that presides over the Senate, who wields lots of power, whom all senators vote for, the institution has a very decentralized set of procedures. The way it makes decisions is very decentralized. And the majority leaders (that weren't in existence prior to the beginning of the 20th century) and the minority leaders, their job, while they do it differently over time, is really then to facilitate the participation of members in the process and also to help to enact their agendas. So there's an institutional component to it, and there's a partisan component to it.

Kevin Kosar:

Is there anywhere listeners can turn to see a job description for the majority leader?

James Wallner:

You could just Google it, I'm sure, and you’d get lots of interesting stuff. You'd probably look up something on Senate.gov. You can look at different biographies of different majority leaders in the past. Robert Caro's The Master of the Senate, a book about Lyndon Johnson, is a great example. But I want to underscore something. There is no one way to lead the Senate. That changes, and it changes over time in response to the environment in which the Senate operates, the problems and challenges that the senators have, and the goals that they want to achieve. And so the leadership position is going to look different at different points in time. There is no one way to lead the Senate.

Kevin Kosar:

And how does one lead the Senate? The first place a person's mind might turn to are powers. We should talk about powers. When you think of leaders, usually leaders have some sort of powers they can use to get other people to obey them. Does a majority leader in the Senate have any powers that are granted to them by the Constitution or Senate rules or something else? The power to give out resources, the power to assign people to committees, power to do whatever it might be? What powers does the Senate majority leader have?

James Wallner:

Well, the short answer is none. If you think about it, that seems a little strange, because if you open up the newspaper and spend five minutes reading about the Senate, you're going to hear a lot about Mitch McConnell, you're going to hear a lot about Chuck Schumer. You'll hear about some other members as well, but we hear about the leaders. The leaders don't have any powers, certainly when compared to the House. They're not mentioned in the Constitution, like the speaker of the House is. The Senate rules themselves, they mention the majority and minority leaders on several occasions, but not in any real, significant way. And they don't really bestow on the two leaders any significant powers. The reason why they're powerful is because the rank and file members, the lawmakers themselves, defer to the leaders to do a whole host of different types of activities to make the legislative process more orderly. This first starts in the late 1940s, early 1950s, and it gains steam over time.

There's something else I really want to underscore though — that the leader has what we call priority of recognition. So everybody's favorite vice president, John Nance Garner, “Cactus Jack,” in 1937 created a precedent. A precedent is simply just what the Senate did in the past. And it looks to its past behavior on occasion to decide how it wants to operate in the present. And so there's a precedent out there where Cactus Jack is sitting there presiding over the Senate, and he just says one day, “Alben Barkley,” (ironically, a leader from Kentucky; we’ve got a current minority leader from Kentucky in Mitch McConnell), but Alben Barkley, he's about to speak, and Cactus Jack says, "You know what, I'm going to recognize the majority leader first, and then the minority leader after him, if more than two senators are seeking recognition at one time." So that's priority of recognition. It's a favor. It's a favor that the chair, the presiding officer, and in this case, the vice president, gives to whomever the floor leader is, whomever the majority leader is. And it's something that the Senate can't force the chair to do.

Now, what does the majority leader do with priority of recognition? It doesn't really matter much at the time, but today it's almost everything. Because priority of recognition, coupled with senators’ deference to their leaders to order the chamber for them and order their deliberations and make it more efficient and predictable — and to be quite honest, easy and less hard — the majority leader will use priority of recognition to set the schedule by making motions to proceed to bills. And then, and most importantly, they will use priority of recognition to fill the amendment tree, which is just a fancy way of saying, they will offer a bunch of amendments, one after another, so that no other senators can offer amendments. And this, in effect, shuts the floor down, shuts down a bill, and denies senators the opportunity to amend it. The Rules Committee in the House will do that as a written rule. And you can very clearly see where the power comes from, and you can see when they vote against your amendments why you can't get your amendments. But in the Senate, the leader approximates that by this priority of recognition, in using it to basically do things that other senators cannot do.

Kevin Kosar:

Earlier, you mentioned that one thing a majority leader does is do stuff that other senators don't necessarily want to do. And one of those things I would think would be the seeking of unanimous consent. What is unanimous consent, and what's the leader's role in getting it?

James...]]>The topic of this episode is, "What is the role of the Senate’s majority leader?"

My guest is Dr. James Wallner. He is a senior fellow at the R Street Institute and a lecturer at Clemson University. He is the author of three books on the Senate, including one titled On Parliamentary War: Partisan Conflict and Procedural Change in the U.S. Senate (2017). James has worked in the Senate, and also is a cohost of the Politics in Question podcast. 

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation.

I'm your host, Kevin Kosar, and I'm a resident scholar at the American Enterprise Institute, a think tank in Washington, DC.

It is to James Wallner that we turn to learn about the role of the majority leader. James, welcome to the program.

James Wallner:

Thanks for having me.

Kevin Kosar:

First question. Chuck Schumer is the current majority leader in the Senate. How did he get that job? What's the process? Did all the senators get together and vote for him or some other candidate?

James Wallner:

Well, that's how it works in the House, where you nominate candidates to be the speaker of the House. Nancy Pelosi is our current speaker. Democrats and Republicans on the floor of the House all cast a vote for the speaker, and the nominee with the most votes becomes the speaker. And so the majority party, in effect, selects the speaker. In the Senate, it's a similar process, but slightly different, because they're not electing a speaker, they're not electing a presiding officer. The majority leader, Chuck Schumer, is merely the floor leader of the party with the most votes — so in this case, the Democrats. And it’s 50–50 right now, split evenly between Democrats and Republicans. The vice president is a Democrat, so assuming that the vice president would cast her vote with the Democrats on a tie vote — under the Constitution, she gets to do that — that means that Chuck Schumer has more votes behind him than the leader of the Republican Party, Mitch McConnell, has behind him. So he is the majority leader, McConnell is the minority leader. The way they're chosen is simply by their party colleagues in secret ballot, in a meeting that usually happens right after the election, typically in December following an election before the new Congress meets.

Kevin Kosar:

You underlined a point there about the difference between leadership in the House and leadership in the Senate. It sounds, at least ostensibly, that a speaker may make a claim to be the head of the whole of the House, whereas in the Senate, it sounds like the majority leader is just the partisan leader.

James Wallner:

Absolutely. Look, party leaders in the Senate have institutional tasks, too. They help to schedule legislation. They do a bunch of different things that institutional leaders in the House, like the speaker, also do. And the speaker is also a partisan leader, in the fact that she is selected by her majority party caucus and really works to advance the agenda of the majority party. So they go hand in hand. But there is no Senate leader. I'm reminding myself of Woodrow Wilson, where he says, "There's no leader in the Senate," and that's something that's really frustrating him. And this is what makes the Senate great. Because there's no one that presides over the Senate, who wields lots of power, whom all senators vote for, the institution has a very decentralized set of procedures. The way it makes decisions is very decentralized. And the majority leaders (that weren't in existence prior to the beginning of the 20th century) and the minority leaders, their job, while they do it differently over time, is really then to facilitate the participation of members in the process and also to help to enact their agendas. So there's an institutional component to it, and there's a partisan component to it.

Kevin Kosar:

Is there anywhere listeners can turn to see a job description for the majority leader?

James Wallner:

You could just Google it, I'm sure, and you’d get lots of interesting stuff. You'd probably look up something on Senate.gov. You can look at different biographies of different majority leaders in the past. Robert Caro's The Master of the Senate, a book about Lyndon Johnson, is a great example. But I want to underscore something. There is no one way to lead the Senate. That changes, and it changes over time in response to the environment in which the Senate operates, the problems and challenges that the senators have, and the goals that they want to achieve. And so the leadership position is going to look different at different points in time. There is no one way to lead the Senate.

Kevin Kosar:

And how does one lead the Senate? The first place a person's mind might turn to are powers. We should talk about powers. When you think of leaders, usually leaders have some sort of powers they can use to get other people to obey them. Does a majority leader in the Senate have any powers that are granted to them by the Constitution or Senate rules or something else? The power to give out resources, the power to assign people to committees, power to do whatever it might be? What powers does the Senate majority leader have?

James Wallner:

Well, the short answer is none. If you think about it, that seems a little strange, because if you open up the newspaper and spend five minutes reading about the Senate, you're going to hear a lot about Mitch McConnell, you're going to hear a lot about Chuck Schumer. You'll hear about some other members as well, but we hear about the leaders. The leaders don't have any powers, certainly when compared to the House. They're not mentioned in the Constitution, like the speaker of the House is. The Senate rules themselves, they mention the majority and minority leaders on several occasions, but not in any real, significant way. And they don't really bestow on the two leaders any significant powers. The reason why they're powerful is because the rank and file members, the lawmakers themselves, defer to the leaders to do a whole host of different types of activities to make the legislative process more orderly. This first starts in the late 1940s, early 1950s, and it gains steam over time.

There's something else I really want to underscore though — that the leader has what we call priority of recognition. So everybody's favorite vice president, John Nance Garner, “Cactus Jack,” in 1937 created a precedent. A precedent is simply just what the Senate did in the past. And it looks to its past behavior on occasion to decide how it wants to operate in the present. And so there's a precedent out there where Cactus Jack is sitting there presiding over the Senate, and he just says one day, “Alben Barkley,” (ironically, a leader from Kentucky; we’ve got a current minority leader from Kentucky in Mitch McConnell), but Alben Barkley, he's about to speak, and Cactus Jack says, "You know what, I'm going to recognize the majority leader first, and then the minority leader after him, if more than two senators are seeking recognition at one time." So that's priority of recognition. It's a favor. It's a favor that the chair, the presiding officer, and in this case, the vice president, gives to whomever the floor leader is, whomever the majority leader is. And it's something that the Senate can't force the chair to do.

Now, what does the majority leader do with priority of recognition? It doesn't really matter much at the time, but today it's almost everything. Because priority of recognition, coupled with senators’ deference to their leaders to order the chamber for them and order their deliberations and make it more efficient and predictable — and to be quite honest, easy and less hard — the majority leader will use priority of recognition to set the schedule by making motions to proceed to bills. And then, and most importantly, they will use priority of recognition to fill the amendment tree, which is just a fancy way of saying, they will offer a bunch of amendments, one after another, so that no other senators can offer amendments. And this, in effect, shuts the floor down, shuts down a bill, and denies senators the opportunity to amend it. The Rules Committee in the House will do that as a written rule. And you can very clearly see where the power comes from, and you can see when they vote against your amendments why you can't get your amendments. But in the Senate, the leader approximates that by this priority of recognition, in using it to basically do things that other senators cannot do.

Kevin Kosar:

Earlier, you mentioned that one thing a majority leader does is do stuff that other senators don't necessarily want to do. And one of those things I would think would be the seeking of unanimous consent. What is unanimous consent, and what's the leader's role in getting it?

James Wallner:

So typically when I talk about the Senate, I start off by saying the rules don't matter. Then later on, I say maybe one or two rules matter. And then at the end, I'm like, they all matter, all the rules matter. Well, in the “the rules don't matter” stage, they don't matter because of unanimous consent. The Senate has rules, it has procedures to follow, it has things that it does to make compromise. It's worked that way for hundreds of years, for a very long time. But they never follow those rules. Why? Because they're convoluted. They're hard. They require a lot of effort. The former Senate parliamentarian Alan Freeman used to tell me, there's a certain logic to the rules, but it's contradictory. On one hand, it drives senators towards compromise, towards agreement. The process makes things possible. But at the same time, it also empowers individuals to participate in that process, even individuals who disagree and want to stop things that the other senators may want to pass. But those two things taken together ultimately lead to outcomes.

Now the Senate doesn't follow its rules for lots of different reasons, but let's just go with the fact that it makes it easier to legislate. Well, what do they do? They cut to the end. They know they can game it out and they can say, "Well, if we do this, then you're going to do this and then I'm going to do this, and it's going to unfold like that.” This is how Mike Mansfield and Senator Richard Russell, when they had this meeting in his office prior to the debate of the Civil Rights Act of 1964, they told each other what they were going to do, how they were going to try to win that debate. So I imagine this playing out in senators’ heads. I don't think it does in that same way, but they just cut to the chase. And so they see where things are going to go and they say, "Okay, well let's just not go through all the effort to get there. Why don't we just agree by unanimous consent to waive all our rules and just set a 60-vote threshold, for instance, to pass something” — instead of first having to invoke cloture, which under the Senate rules requires typically 60 votes, and then going through a post-cloture period, and then finally having a simple majority vote on it. Let's just cut to the chase — unanimous consent. And so unanimous consent is a way that the Senate waives its rules and creates a new set of procedures, sometimes very intricate, sometimes not, for a specific bill or a specific debate, or even just for a specific slice in time, so that it can avoid the Senate doing something else under those rules.

Kevin Kosar:

I've heard it said that the majority leader doesn't decide what gets voted on in the Senate, but rather coordinates what gets voted on in the Senate, and will do that through this process of seeking all senators to agree to unanimous consent — so that when he shows up on the floor one morning to do something he doesn't get surprised. Because apparently one senator can gum up the works. Is that right?

James Wallner:

It's right only insofar as that senator's on the floor at the moment unanimous consent is propounded and requested of other senators. And oftentimes, and this has happened during my career in the Senate, the leaders will, when they want to, they will conveniently overlook the fact that someone may have concerns. And in the past, going back to the ’80s, you had Senators Baker and then Dole on the Republican side who were very explicit in reiterating to their colleagues that unanimous consent, or the cloakroom and the hold process and the ways in which the leaders won't ask consent if rank and file have a potential objection — all of those things are favors or services that the leaders are giving or doing to provide for their rank and file. They don't have to do them. And so if you're not there, you can't object. You can't say no. And if you are there, there's certainly things that leaders can do to make it very hard for you to object. They can wait until the last minute, and they can put some provision that you don't like into a big government funding bill or a debt limit bill or something else. And then they can say that if this doesn't pass, this other thing that you're not objecting to, it will be Armageddon. The republic will fall into the ocean, the seas will boil, and it will be just the worst thing in the world. And then you can imagine how difficult it is to stand up and say, "I object,” and then you sit down.

But again, unanimous consent is just a request. It's a vote where everybody has to vote yes. The second you can sit down, the Senate has lots of other procedures they can follow to pass things. There's no veto in the Senate. And the only thing that exists like a veto is when you ask for someone's permission to do something, to waive the rules and pass a piece of legislation, for instance.

Kevin Kosar:

You referenced something called a hold. Listeners may have encountered that phrase before when hearing about the Senate being unable to take up something, whether it's a nominee or a piece of legislation — that a senator put a hold on it. We don't know who it was, but a senator did that. First, what's a hold? And when it comes to holds, if somebody does a hold, is it the majority leader's job to go deal with that person, to see if they can bargain with them?

James Wallner:

The hold process is possibly the least understood aspect of Senate procedure in decision making next to I think the filibuster, or maybe the votes on motions to recommit and cloture. But we'll set all that aside for now. The hold process, what is it? It's simply a senator who expresses an intent to object, who communicates to his or her party leaders that they will object to something. You typically do it in a letter. You say, "I'm just notifying you. Hey, heads up Chuck, if you bring this to the floor, I, Elizabeth Warren, am going to object to its consideration." Or, it could be phrased as, "I would like you to consult with me prior to bringing it up." But again, the leaders can ignore that.

And as far as what the hold process does, it's really an opportunity to negotiate. There are no secret holds. I worked in the Senate for a very long time. If you want to know who's holding your bill, you just call down to the cloakroom — that's the party staff on either side of the Senate, where they sit, and basically all the senators from that party congregate in the back of the chamber — you call them and say, "Hey, who's holding this bill?" And they'll tell you, typically. And if they don't, and if you've asked people not to say, then if the leaders want to pass something that you're holding, they will tell people to bring heat on you, to make it difficult for you to hold it. There are no hard and fast rules in the Senate. But what the hold process does is that you hotline something. All the phones ring. I guess when I was there, the phones would ring. Prior to me, they had a little squawk box that would go off sometimes. And then you would have an email and it says, "We're going to ask unanimous consent for this bill." And then you would pick up the phone and you would call, or you would write a letter, a senator would sign it. It would say, "Hey, we're going to object if you do that." And then they wouldn't go forward with that plan, that day. In the meantime, the people who object would be contacted by the people or the committee who wanted to pass that bill, and they would work out their differences. And that's the way the whole process works, it’s an opportunity to negotiate. It's not about killing things in the dead of night. And if it is, I certainly was unable to do it, because we held a lot of stuff when I worked in the Senate, and I was never able to defeat things without anybody knowing it in the dead of night, without expending any little bit of effort.

Kevin Kosar:

So, you've said in many of your publications that we should not fall into a habit of thinking of the Senate as a factory, some sort of hierarchical organization with a neat separation of duties amongst its members and a leader at the top, and its success measured based upon its outputs. Obviously, how the Senate runs is going to be affected by who the majority leader is. How are the majority leaders of recent years, in the way that they run the Senate, the same or different from majority leaders like Mike Mansfield or Lyndon Johnson or those from 50, 60, 80 years ago?

James Wallner:

Well, I'm so glad you referenced Mike Mansfield, and Lyndon Johnson for that matter, because Mike Mansfield really speaks to this factory analogy very well. In a speech that he was intending to give in 1963, he was going to deliver it, but it was right around the time that President Kennedy was assassinated, it was a speech called “The Senate and Its Leadership.” And he ended up submitting it for the record in 1963, on November 27th, for the congressional record — you could look it up there. He also delivered it himself in person in the old Senate chamber as part of a leadership speaker series that you can find on the Senate.gov website. It's really a fabulous address, and it really speaks to how he understood the Senate, and it speaks to how a leader can be effective in a particular environment, doing things that we may not think could be effective today.

But in this speech, he says that the Senate isn't a factory. He says, there's no timecard, senators aren't clocking in and then assuming their position on the factory floor. They are there to participate in an activity as equals. It's the process, it's the...]]>e12898bc-c54a-4af2-831a-37254e54edf2Mon, 06 Dec 2021 06:00:00 -050023:58falsefull1717What is the Congressional Review Act? (with Bridget Dooling)The topic of this episode is, "What is the Congressional Review Act?"

My guest is Professor Bridget C. E. Dooling of George Washington University’s Regulatory Studies Center. She has a deep background in regulation. Previously, Bridget worked for the Office of Information and Regulatory Affairs in the Office of Management and Budget. She also has clerked for an administrative law judge and worked in the U.S. Department of Justice.

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it, but Congress is essential to our republic. It's a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation.

I'm your host, Kevin Kosar, and I'm a resident scholar at the American Enterprise Institute, a think tank in Washington, DC.

It is to Professor Dooling we turn to learn about the Congressional Review Act, a tool for Congress to abolish regulations. Welcome to the show.

Bridget Dooling:

Thank you so much. I'm glad to be here.

Kevin Kosar:

Before we get into the Congressional Review Act, or CRA, let's start with something basic. What are regulations, and why do they matter?

Bridget Dooling:

Regs are great, and studying them is even better. Regulations are everywhere. They shape our world, but not necessarily in obvious ways. Knowing about regulations is like having a decoder ring for why certain things are the way they are. Like, why do you need prescriptions for some things, but you can help yourself to whatever supplements like vitamins that you want? It's because there's a regulatory line there. You can't see it when you're in the drugstore, but it absolutely affects the way you live.

Kevin Kosar:

Yeah. Regulations really, to a degree, I guess they're specifications of laws, particular applications. Is that a fair characterization?

Bridget Dooling:

Yep.

Kevin Kosar:

Now, if listeners want to see these things, these regulations, where should they go? Where can they find a list or collection of regulations?

Bridget Dooling:

Yeah, there's a few ways. One is that you can look at legislation, because that's where Congress tells the agencies what they're allowed or required to do. And then you can also look at what the agencies themselves produce. So for rules that are in the process of being made, there's a website called regulations.gov. That's a great place to start, so if you hear that a rulemaking is coming down the pike, that's a great place to go check its status and see if it's open for public comment, for example. So that's regulations.gov. And for rules that are already on the books, you'd want to look at something called the Code of Federal Regulations, which pulls all that regulatory text into one place so you can read it all in one spot.

Kevin Kosar:

Excellent. Now our listeners know. So let's turn to the Congressional Review Act. Congress enacted it in 1996. Democrats and Republicans alike voted for it. President Bill Clinton signed it into law. In most basic terms, what is the CRA?

Bridget Dooling:

The Congressional Review Act allows Congress to disapprove federal agency rules using fast track procedures, during a special window of time following the rule's issuance. And perhaps the most important of these special fast-track procedures is that resolutions of disapproval can't be filibustered. And if it's enacted, this disapproval resolution effectively wipes the relevant rule from the books and the regulations revert back to whatever existed previously. Now, if an agency was to set about going back and undoing its own rule, that could take years. Congress can move much faster than a regulatory agency can by using the CRA to basically short circuit that rule.

To be enacted, however, both chambers of Congress must pass the resolution and the president needs to sign it. And because a president's unlikely, very unlikely to sign a resolution disapproving a rule that was issued during his or her own administration, or that of a president from the same party, the Congressional Review Act is especially salient following a presidential election in which the incumbent or same party nominee loses. If that happens, and if both chambers in Congress are aligned with the incoming president, the potential for enacted resolutions of disapproval increases dramatically.

Kevin Kosar:

So let's pause for a moment. What we're talking about is a legislature passing a law to wipe out a regulation. The listener might say, Okay, well, why do we need the Congressional Review Act to do that? Couldn't have Congress just done this without creating an act to create an act?

Bridget Dooling:

Yeah, you're exactly right. Congress could always pass regular legislation to overturn an agency's rule, or another way they could handle it is by placing riders on an agency's appropriation in a way that could prohibit an agency from working on a particular rule. In either case though, that would require a filibuster-proof margin. And that's why the CRA offers an enticing procedural option for lawmakers interested in undoing an agency's rule.

And you mentioned earlier that the CRA was enacted in 1996. I really think it's helpful to think about when the CRA was enacted to understand its context, which was part of the Contract with America Act. Around that time, legislators were looking to reclaim some power from the executive branch, and the CRA was just one of the ways that it did so. This was also in the aftermath of INS v. Chadha, which was the decision that struck down the use of legislative vetoes on logic that this violated presidential presentment requirements. So in the CRA you see Congress coming up with a method that allows them to check the executive branch, but only if the president agrees or if they have the votes to overcome a veto.

Kevin Kosar:

Yes, yes, that's right. In your initial answer, you mentioned that fast track provision, and that's so key. Especially to anybody who's watching Congress in recent years, the struggles to get legislation enacted, the threats of filibusters and holds and other such things — the CRA, therefore, is a quicker way to get done what otherwise might be done through a standard statute. Now I want to drill down for a sec. You referenced an interesting dynamic about when the CRA tends to get used. If you have a new president coming in from a different party, and perhaps if Congress is also different, is that the sort of time when we see the CRA get used?

Bridget Dooling:

Yeah. So I mentioned before that the CRA is most salient following a presidential election in which the incumbent or same party nominee loses, and when the new president is in alignment with both chambers of Congress. This has happened a few times since the CRA was enacted. One of the times was at the start of the George W. Bush Administration. And at that time, Congress used the Congressional Review Act to disapprove a workplace safety role on ergonomics that had been issued late in the Clinton Administration.

The next real opportunity to disapprove regs with the stars aligning in the way we described was at the start of the Obama Administration. The Congress didn't turn to the CRA then. This helped create some speculation that the CRA was a tool that Democrats just weren't interested in using — perhaps because once a rule is disapproved an agency can't go back and do it again until Congress lets them. In the Trump Administration, Congress really leaned into the CRA. They disapproved 16 rules, which was a historic number given the way that the CRA had been used in the past. And then at the start of the Biden Administration, the stars were aligned to use the CRA, but the question was, would Democrats use it? And ultimately they did. They disapproved three rules under the Congressional Review Act, somewhat complicating the earlier narrative that the CRA just wasn't a tool that Democrats like to take advantage of.

Kevin Kosar:

The CRA was little used for so many years. And then some of us told Congress some years back, “Psst, hey, the Congressional Review Act exists, you should use it.” You've got a long scope look at the history of this act. On the whole, does it strike you as particularly effective?

Bridget Dooling:

So that's probably going to depend on who you ask, right? Because it depends on what you're trying to achieve with something like the Congressional Review Act. To the extent that its goals were to pull some authority back to Congress, to oversee the executive in a more assertive way, the CRA clearly has allowed legislators to do that. And they have taken advantage of those tools now in three administrations to disapprove rules. I think we've tended to only think about the CRA — to the...]]>The topic of this episode is, "What is the Congressional Review Act?"

My guest is Professor Bridget C. E. Dooling of George Washington University’s Regulatory Studies Center. She has a deep background in regulation. Previously, Bridget worked for the Office of Information and Regulatory Affairs in the Office of Management and Budget. She also has clerked for an administrative law judge and worked in the U.S. Department of Justice.

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it, but Congress is essential to our republic. It's a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation.

I'm your host, Kevin Kosar, and I'm a resident scholar at the American Enterprise Institute, a think tank in Washington, DC.

It is to Professor Dooling we turn to learn about the Congressional Review Act, a tool for Congress to abolish regulations. Welcome to the show.

Bridget Dooling:

Thank you so much. I'm glad to be here.

Kevin Kosar:

Before we get into the Congressional Review Act, or CRA, let's start with something basic. What are regulations, and why do they matter?

Bridget Dooling:

Regs are great, and studying them is even better. Regulations are everywhere. They shape our world, but not necessarily in obvious ways. Knowing about regulations is like having a decoder ring for why certain things are the way they are. Like, why do you need prescriptions for some things, but you can help yourself to whatever supplements like vitamins that you want? It's because there's a regulatory line there. You can't see it when you're in the drugstore, but it absolutely affects the way you live.

Kevin Kosar:

Yeah. Regulations really, to a degree, I guess they're specifications of laws, particular applications. Is that a fair characterization?

Bridget Dooling:

Yep.

Kevin Kosar:

Now, if listeners want to see these things, these regulations, where should they go? Where can they find a list or collection of regulations?

Bridget Dooling:

Yeah, there's a few ways. One is that you can look at legislation, because that's where Congress tells the agencies what they're allowed or required to do. And then you can also look at what the agencies themselves produce. So for rules that are in the process of being made, there's a website called regulations.gov. That's a great place to start, so if you hear that a rulemaking is coming down the pike, that's a great place to go check its status and see if it's open for public comment, for example. So that's regulations.gov. And for rules that are already on the books, you'd want to look at something called the Code of Federal Regulations, which pulls all that regulatory text into one place so you can read it all in one spot.

Kevin Kosar:

Excellent. Now our listeners know. So let's turn to the Congressional Review Act. Congress enacted it in 1996. Democrats and Republicans alike voted for it. President Bill Clinton signed it into law. In most basic terms, what is the CRA?

Bridget Dooling:

The Congressional Review Act allows Congress to disapprove federal agency rules using fast track procedures, during a special window of time following the rule's issuance. And perhaps the most important of these special fast-track procedures is that resolutions of disapproval can't be filibustered. And if it's enacted, this disapproval resolution effectively wipes the relevant rule from the books and the regulations revert back to whatever existed previously. Now, if an agency was to set about going back and undoing its own rule, that could take years. Congress can move much faster than a regulatory agency can by using the CRA to basically short circuit that rule.

To be enacted, however, both chambers of Congress must pass the resolution and the president needs to sign it. And because a president's unlikely, very unlikely to sign a resolution disapproving a rule that was issued during his or her own administration, or that of a president from the same party, the Congressional Review Act is especially salient following a presidential election in which the incumbent or same party nominee loses. If that happens, and if both chambers in Congress are aligned with the incoming president, the potential for enacted resolutions of disapproval increases dramatically.

Kevin Kosar:

So let's pause for a moment. What we're talking about is a legislature passing a law to wipe out a regulation. The listener might say, Okay, well, why do we need the Congressional Review Act to do that? Couldn't have Congress just done this without creating an act to create an act?

Bridget Dooling:

Yeah, you're exactly right. Congress could always pass regular legislation to overturn an agency's rule, or another way they could handle it is by placing riders on an agency's appropriation in a way that could prohibit an agency from working on a particular rule. In either case though, that would require a filibuster-proof margin. And that's why the CRA offers an enticing procedural option for lawmakers interested in undoing an agency's rule.

And you mentioned earlier that the CRA was enacted in 1996. I really think it's helpful to think about when the CRA was enacted to understand its context, which was part of the Contract with America Act. Around that time, legislators were looking to reclaim some power from the executive branch, and the CRA was just one of the ways that it did so. This was also in the aftermath of INS v. Chadha, which was the decision that struck down the use of legislative vetoes on logic that this violated presidential presentment requirements. So in the CRA you see Congress coming up with a method that allows them to check the executive branch, but only if the president agrees or if they have the votes to overcome a veto.

Kevin Kosar:

Yes, yes, that's right. In your initial answer, you mentioned that fast track provision, and that's so key. Especially to anybody who's watching Congress in recent years, the struggles to get legislation enacted, the threats of filibusters and holds and other such things — the CRA, therefore, is a quicker way to get done what otherwise might be done through a standard statute. Now I want to drill down for a sec. You referenced an interesting dynamic about when the CRA tends to get used. If you have a new president coming in from a different party, and perhaps if Congress is also different, is that the sort of time when we see the CRA get used?

Bridget Dooling:

Yeah. So I mentioned before that the CRA is most salient following a presidential election in which the incumbent or same party nominee loses, and when the new president is in alignment with both chambers of Congress. This has happened a few times since the CRA was enacted. One of the times was at the start of the George W. Bush Administration. And at that time, Congress used the Congressional Review Act to disapprove a workplace safety role on ergonomics that had been issued late in the Clinton Administration.

The next real opportunity to disapprove regs with the stars aligning in the way we described was at the start of the Obama Administration. The Congress didn't turn to the CRA then. This helped create some speculation that the CRA was a tool that Democrats just weren't interested in using — perhaps because once a rule is disapproved an agency can't go back and do it again until Congress lets them. In the Trump Administration, Congress really leaned into the CRA. They disapproved 16 rules, which was a historic number given the way that the CRA had been used in the past. And then at the start of the Biden Administration, the stars were aligned to use the CRA, but the question was, would Democrats use it? And ultimately they did. They disapproved three rules under the Congressional Review Act, somewhat complicating the earlier narrative that the CRA just wasn't a tool that Democrats like to take advantage of.

Kevin Kosar:

The CRA was little used for so many years. And then some of us told Congress some years back, “Psst, hey, the Congressional Review Act exists, you should use it.” You've got a long scope look at the history of this act. On the whole, does it strike you as particularly effective?

Bridget Dooling:

So that's probably going to depend on who you ask, right? Because it depends on what you're trying to achieve with something like the Congressional Review Act. To the extent that its goals were to pull some authority back to Congress, to oversee the executive in a more assertive way, the CRA clearly has allowed legislators to do that. And they have taken advantage of those tools now in three administrations to disapprove rules. I think we've tended to only think about the CRA — to the extent that anybody does, but if you're listening to this podcast, you might actually be a person who thinks about the CRA — you've tended to think about the CRA as being used only when it leads to the disapproval of a rule.

Now I'm working on some research with a couple of colleagues at GW, Steve Balla and Daniel Perez, that looks much more closely at the introduction of resolutions of disapproval, which is in the hundreds of instances, not in the low double digits, which is what you've got when you sum up the total number of disapproval resolutions that have been enacted. So if you look at the full range of times when legislators introduce these resolutions and then how those resolutions fare in the legislative process, it's another way to understand how legislators use the CRA even when a resolution really doesn't have a chance of being enacted. So there's lots to learn about the way that legislators do use the Congressional Review Act, even when those resolutions don't actually result in disapproval of a rule. And that's part of what our new research is looking at.

Kevin Kosar:

That's fascinating. If I could ask and if it doesn't get too presumptuous before you’ve got all the results in, are legislators able to sway agencies to perhaps rethink a rule by introducing these disapproval resolutions? Is it kind of a dialogic sort of thing, or is it more of legislators just taking a position to please an interest group or folks back home and introducing these? Is there utility there?

Bridget Dooling:

Yeah, I think these are two of the hypotheses that we're interested in looking at, because you're right — the introduction of a resolution is a way to signal both to an agency as well as to other legislators, or to key constituencies, that the legislator’s aware of the rule, that they want to take action to address the rule. And so those are, the two ideas that you lay out there are two that we're looking at in terms of understanding why legislators might reach for the CRA, even when they know that the stars aren't aligned for the resolution to be enacted. I think also in the bigger picture, given all of the attention on other procedural issues in Congress — close to mind is the filibuster of course — the time just feels right to me to look at how legislators use shortcuts when they have access to them and what that ends up looking like as that plays out. With the CRA you have an interesting example of a situation where legislators are somewhat more free to pursue the resolutions that they want to pursue.

Kevin Kosar:

Great. If I could back up for a sec, just to ask about an important but complicated point that may have slipped right by our listeners’ ears: When it comes to regulations that can be struck down through the Congressional Review Act process, can it be just any regulation, any issue area? And can it be regulations of any possible age? You know, something that was done in the 1970s — can that be struck down through the Congressional Review Act?

Bridget Dooling:

Right. So as a general matter, no, there is a time limit on when Congress can use this tool, but the CRA does apply generally to rules. So there's no subject matter limitations or anything like that, but there is a timing limitation. Congress needs to, if it's going to use the CRA to revoke a rule, it needs to do it within a certain time period after that rule has been issued. Now there's been some shenanigans with that, looking at when the clock actually starts for certain documents where it's a little tricky to figure out when that time period starts running for Congress. But as a general matter, you can think of the CRA as a tool that's available to Congress only for a period of months following when a rule is issued by an agency. So as a general matter, they can't reach back decades to use the CRA to undo something that has been settled law for an extended period of time.

Kevin Kosar:

Got it. All right. Well, continuing with this theme about the CRA as a tool, last time I counted, there were something like 180 executive agencies, nearly all of which can produce regulations. And I think the last time I looked at the code of federal regulations, there was something like 180,000 pages of regulations. When thinking about the number of CRAs that have been passed through Congress and signed to a president, it seems quite minuscule compared to that great corpus. Are there other tools or policies that might help Congress, the first branch of government, better oversee regulation? Because as you mentioned at the very start of this podcast, regulations are important. They are specific applications of the law.

Bridget Dooling:

Yeah, you're right. You know, if you were thinking about measuring the effectiveness of the CRA as compared to the number of rules that come out and saying, we're in the double digits on disapproval resolutions that have been enacted, but we've got thousands and thousands of rules on the books — I suppose you could say that the CRA hasn't been effective. However, there's a possibility that its existence serves a tempering function. The agencies know that it's there, and so it's plausible that when they craft their regulations, they're doing it with an eye towards the fact that Congress could come back and revoke them using the CRA or other procedures. So in that sense, the existence of the oversight pathway could be triggering some responses at the agency level even if you don't see that in the form of disapproval resolutions being enacted. Basically if it's doing a good job of keeping the agencies in line, then you hope it wouldn't get to a disapproval resolution that after all is quite wasteful. I mean, the agencies might have gone through many years of policy development and public engagement, setting expectations for what they're planning to do. To have Congress come back at the end and upend that with a resolution of disapproval is really a shame in my mind. I mean I hope that there would be ways to work out the policy disagreements, such that it doesn't often come to that. But in general, and let me just digress a little bit to say that if this is something that interests you and your listeners in terms of potential reforms, the Administrative Conference of the United States has a new project on the Congressional Review Act. Jesse Cross is the consultant and his draft report is available ACUS.gov. So if you're interested in following what ACUS might ultimately recommend in terms of ways to change the Congressional Review Act, I recommend keeping an eye on that project, not least because Professor Cross has put together a wonderful draft report that goes through all kinds of the exact parliamentary procedure that I wouldn't be able to get into with you today. I mean, he's just really done a remarkable job of mapping out how the CRA works in practice.

So that's a great report, but to your point, Kevin, I mean rulemaking is law intensive and super technical. And the policy areas that agencies take on via rulemaking also are intensive and technical. So it's really important that members and committees have professional staff that can monitor what the agencies are up to on regulation, or at least have the toolkit to track down issues when constituents bring them to their attention. So one way to stay on top of what's new in regulation is to sign up for our weekly digest, which gives you a snapshot of the week's most important regulations and analyses about those regulations. And you can find that free digest if you search Regulatory Studies at George Washington University.

Kevin Kosar:

Excellent, excellent. To help Congress's capacity, in addition to them being able to draw upon your newsletter, it sounded like you intimated that having dedicated staff either at the personal office or committee office to be able to keep an eye on regulations would be valuable?

Bridget Dooling:

Yeah, I definitely think that's key. Not least because when constituents come in with concerns, it's better I think if the staff have a framework to think about those concerns and that they know where to look up regulations, they know how to check in on their status, they know which agency is responsible for which regulations, and maybe even have relationships back with those regulators so that they can get answers to the questions that are coming in.

Kevin Kosar:

Well, Professor Dooling, thank you for enlightening us about the Congressional Review Act today.

Bridget Dooling:

Thank you so much for having me. It's been very good fun, and I appreciate the chance.

Kevin Kosar:

Thank you for listening to Understanding Congress, a podcast of the American Enterprise Institute. This program was produced by Elayne Allen and hosted by Kevin Kosar. You can subscribe to Understanding Congress via Stitcher, iTunes, Google Podcasts, and TuneIn. We hope you will share this podcast with others and tell us what you think about it by posting your thoughts and questions on Twitter and tagging @AEI. We hope you have a great day.

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