Making Congress Responsible

Spring 2015

American politics is a puzzling muddle, and it is hard to make sense of its various, seemingly contradictory trends. Democrats have won the past two presidential elections convincingly, and they are persuaded that inevitable demographic changes are set to power them to an unprecedented majority coalition. Republicans in response can point to numerous contrary indicators, such as consistent opposition to Obamacare and the GOP's wave of victories across the country in 2014 that, among other things, cemented Republicans' control of the House of Representatives. The country as a whole, meanwhile, says it is sick and tired of partisan gridlock but stubbornly refuses to break it, instead splitting its ticket for most of the last decade.

Despite the muddle, however, one thing is abundantly clear: Americans today downright hate Congress. To be sure, Congress has rarely been beloved over the last 50 years. During much of the Ronald Reagan, George H.W. Bush, and Bill Clinton administrations, its job approval rarely exceeded 40%, excepting the economic boom years of 1998 to 2000. The attacks of 9/11 generated a spike in congressional job approval, but since then it has more or less been steadily declining. Gallup's reading in early September 2014 found that just 14% of Americans approved of Congress's job performance.

For a republic like ours, this trend is dangerous. We may think of the presidency as the epicenter of American politics, but the founders sure did not see things that way, and their Constitution reflects it; the first, and by far most extensive, article of our government's charter sets up the legislative branch, not the executive. Congress, before any other institution, was to be the prime mover of public policy. It is also the most intimately connected to the citizenry. Widespread distrust of Congress can only mean that the country feels alienated from its own government, and for those seeking to preserve our constitutional republic and our heritage of self-government, this is certainly worrisome.

Despite the relative length of Article I, the internal structure of Congress is left mostly undefined in the Constitution. Section 5 of Article I states, "Each House may determine the Rules of its Proceedings." It is up to the members to craft the rules that regulate the chamber and ultimately to make sure that it is responsive to the public will. This is what the framers obviously hoped would happen, and they depended upon the House in particular to be the most sensitive to the national mood.

Herein lies one of Congress's biggest problems and one of the reasons its popularity is scraping historic nadirs: The rules that govern Congress today are not well-crafted. Too often they facilitate the advancement not of the public good but of what Theodore Lowi once called "interest-group liberalism" — that is, the spread of governmental largesse to the most well-connected players. The public doesn't approve of Congress because it doesn't trust Congress to act responsibly in its interest.

Consider the huge spending bill Congress passed at the end of 2014 to fund the government. Referred to as the "cromnibus" (because it was part continuing resolution and part omnibus budget), the bill was full of giveaways and benefits to narrow interests. BlueCross/BlueShield had a little provision tucked away at the end of the bill, and the financial industry also got some regulatory relief through a provision reportedly written by lobbyists for Citigroup. It is hard to see how these narrow provisions help anyone apart from the few with enough influence to bend legislation to their will, and the outcry from the right and left was almost — almost — enough to sink the bill.

The ability of Congress to act responsibly in the interest of the public as a whole does not depend so much on the personalities within it (although the individual actors certainly do have an effect) but rather on how the chambers are organized. Much depends upon the way the preferences of the members are translated into public policy — a process that happens through a vast array of rules that govern legislative behavior. While a Teddy Roosevelt or a Ronald Reagan can remake the presidency into something powerful and special, a member of Congress, amidst 534 other members, is rule-bound and relatively weak. What really matters is the schema into which every member fits.

And the current schema is failing the country. It is time Congress reconsidered some of the fundamental assumptions behind how it conducts business.

CONGRESSIONAL RESPONSIBILITY

The concept of Congressional responsibility recurs through generations of American political thought — from the framers to the progressives to the present day. Making the government responsible to the public interest, rather than private or special interests, was a key concern of both James Madison and Woodrow Wilson. Though the two disagreed sharply on how to make that happen, they both agreed that the solutions, in large measure, had to be structural. That is, the rules that govern governmental behavior were their main source of concern.

Madison's take remains essential for understanding the American system. In his conception, human nature is fractious and factional, and thus a permanent danger to good republican government. As Madison famously wrote in Federalist No. 10:

As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves. The diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests....The latent causes of faction are thus sown in the nature of man.

People can be expected to pursue their own interests, Madison says, even when their interests are not shared by a majority of the whole country. Yet at the same time, republican government ultimately requires the consent of these factionalized people through some form of elections. Therein lies the challenge at the heart of every republican experiment — its foundational principle, rule by the people, is also the greatest threat to its existence.

The solution to this problem at a national level is our current system of checks and balances prescribed in the Constitution. The House and Senate face different pressures due to their different term lengths; the House is expected to pursue most vigorously the will of the people while the Senate is expected to temper the excesses of the House. The president can veto legislation, while Congress can impeach the president, and the Supreme Court can strike down acts by either Congress or the president that are illegal or unconstitutional. The system is designed to be slow and force any legislation to clear multiple hurdles before becoming law. This arrangement is meant to force the different parties to find a compromise that does not favor any one group and that, as a result, benefits the country as a whole.

But the Constitution is notably vague on the specifics of how this is to be done. In the case of the Congress, it gives both chambers exclusive rights to organize as they see fit:

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment....The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided. The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the office of President of the United States.

Beyond that, institutional design is up to the members of each chamber. Though the Constitution provides for the dangers of faction through its brilliant arrangement of the three branches of government, faction can work its mischief within the branches, too. A Congress inattentive to the dangers posed by faction can lapse into an internal organization that empowers factional interests rather than steers members into the service of the public good.

CHANGES IN STRUCTURE

The explanations for congressional irresponsibility are many and varied, but ultimately trace back to a collective-action dilemma inherent to electoral politics: A winning campaign requires the effort of many, but only one person gets to occupy the office. Given everyone's self-interest, logic says that it is "irrational" for any person except the candidate to participate at all. In reality this does not happen, in part because, as political scientists have long noted, participation in politics is a kind of civic religion for many in America. We vote, knock on doors, and donate money. Still, all that effort does not cover the cost of campaigns — and it never really has. Civic duty mitigates some of the challenges posed by the dilemma, but not all of them. How, then, can people be motivated to be involved in campaigns that elect other people to power?

The first major American solution to this practical problem was the spoils system. Prevalent from roughly 1830 until 1880, the idea was that the most active and energetic supporters received government jobs (and were required to kick a portion of their government salary back to the party that arranged their employment). It served its purpose well, providing an individual incentive for people to participate in the collective effort. The spoils system existed far beyond the halls of Congress, too. Combined with the Tenure of Office Act, it perverted the relationship between the executive and legislative branches, as President Ulysses Grant allowed senators like Roscoe Conkling of New York and Simon Cameron of Pennsylvania to build vast political machines funded by federal patronage.

But the assassination of President James Garfield by a disgruntled spoilsman in 1881 sparked public outrage and eventually led to a far-reaching ban on federal patronage. The Civil Service Act of 1883 required that government employees be hired on the basis of merit, not their connection to the officials in power.

What emerged in its place was a tight relationship between business interests and politicians: The former would fund campaigns, while the latter would ensure their funders' interests were served in government. In fairness, this deal is as old as time, and it had been prevalent in American politics for generations. Henry Clay and Daniel Webster had financial ties to Nicholas Biddle, president of the Second Bank of the United States. Even President James Monroe tweaked federal rules regarding the fur trade for John Jacob Astor, who had lent the future president a few thousand dollars during a financial dry spell a few years earlier. Still, the collapse of the patronage regime meant that politicians needed another source of revenue, and these once personal and informal relations became professionalized and well regimented.

The first politician of national prominence to turn it into a formal political methodology was James Blaine, who was active from the 1860s through the 1880s. Blaine was a political titan — speaker of the House, secretary of state, Republican nominee for president in 1884, and one of the great orators of the period. He eschewed the machine-style politics that Grant had fostered and instead curried favor with business interests: first the railroad tycoons and then industrial magnates like Andrew Carnegie. Later politicians, especially in the Republican Party, would follow his lead as the cash available from patronage dried up.

Not only does this insidious kind of insider dealing continue to this day, it has actually worsened in the last 100 years. Liberals blame Super PACs in the wake of Citizens United for spreading corruption, but these groups operate largely outside the main corridors of power, instead working directly with voters. The real action today involves campaign contributions from special interests — businesses, labor unions, professional associations — in the form of PAC money to politicians. While statutorily limited to $5,000 per election, PAC contributions are still the foundation of a vast architecture of influence-peddling within Congress. Interest groups provide politicians with (selective) policy information, political advice, staffing, opportunities for employment after office, and more. And that initial donation of $5,000 is the money that undergirds the entire relationship.

Up until the 1970s, all of this was illegal, at least technically. In 1907 the Tillman Act outlawed contributions from businesses to politicians. The Smith-Connolly Act of 1943 temporarily extended this limitation to labor, and the Taft-Hartley Act of 1947 made that extension permanent. The Congress of Industrial Organizations designed a clever new trick to get around the limitation, however: a political action committee. Instead of donating directly to politicians, labor-union members and management would donate to the CIO PAC, which would then distribute money to politicians. This scheme worked until the late 1960s when the federal courts were poised to strike it down. Labor prevailed upon its friends in Congress to legalize PACs, which it did in the Federal Election Campaign Act of 1971. That law gave the "all clear" sign to business and professional groups, which have since swamped the field.

When compared to the total budgets of campaigns, which often run into the millions of dollars, PAC donations are relatively small. But PACs often operate in packs. For instance, if you were a Democratic politician in the 1990s who was friendly to Fannie Mae, the government-sponsored housing finance giant, you would get a contribution not only from them, but from the homebuilders, mortgage brokers, banks, and so on. You would also receive individual contributions from employees affiliated with each group. Moreover, the PAC money is really just a sign of good faith for these continuing transactional relationships, which ultimately include job opportunities after you leave office (for you, your kin, or former staffers), provision of information, and even nominally non-political donations (Fannie Mae in particular was a master of this kind of dealing). In return for these considerations, politicians do what they can for interest groups. This usually does not mean that lawmakers are voting against their constituents on salient issues, but rather involves their nudging the policy needle when possible, especially in keeping harmful policies from ever being considered.

Even beyond questions of funding and influence, the trajectory of congressional reform over the last 100 years has been more than disappointing. In 1910, progressive Republicans and Democrats in the House launched a "coup" against the heavy-handed speaker, Joe Cannon, the result of which was to spread power far and wide across the committee systems. Sixty years later, liberal Democrats had grown tired of the outsized influence of their conservative, tenured colleagues who dominated the key committees, and they began to centralize power once again. In 1994, the House Republican "Contract with America" gave pride of place to legislative reforms, including an end to proxy voting and a reduction in Congressional staff sizes.

Most of these changes have had much more to do with intra- or inter-party struggles than with ensuring Congressional responsibility for the public good. The liberals of the 1970s who reshaped the House, for instance, might have thought they were making Congress more responsive to the public will, but in reality their effort was more a transfer of power from Southern Democrats to their Northern, liberal rivals. Twenty years later, the Contract with America dealt in a few ways with responsibility, like imposing term limits on committee chairmanships, but in other respects it dealt with more superficial issues of Democratic excess, like banning proxy voting. Also, by reducing staff and budgets, the Contract only helped facilitate interest-group power.

In fact, the last two major assaults on congressional irresponsibility are now over 100 years old. The 17th Amendment, passed in 1913, struck at the heart of the Gilded Age machines by mandating the direct election of senators, a move that prevented individuals from buying their way into the Senate so easily. Before that, one has to go back to the Civil Service Act of 1883, which marked the end of the old patronage era.

Despite some cosmetic changes, then, the central organizing premises of the legislature are now at least as old as the Model T. In the case of campaign finance, things are actually worse than they have been in a long time, as far-reaching reforms have actually been undone. The Tillman Act of 1907 and the Taft-Hartley Act of 1947 were serious attempts to get special-interest money away from members of Congress, but the former was never well enforced. Worse, their premises were totally upended by the Federal Elections Campaign Act of 1971, and this law in turn was reinforced by the McCain-Feingold Act of 2002.

This complacency is troubling. To the casual reader, the Constitution may give the impression that it settles the ancient questions of how government should operate, but a true republic is not so much the embodiment of an original blueprint as it is a constant struggle. There are always forces looking to tilt public policy toward their own, selfish ends, and reformers must be ever-vigilant. In particular, they must understand that, sooner or later, special interests adapt to old reforms, even perverting them entirely to their own interests. That is why it is such a problem that Congress has gone basically unreformed for so long, and in the case of campaign finances especially, things have gotten much worse. Cleaning up the institution should now be a top priority.

MADISONIAN REFORM

None of this should come as a huge surprise to astute observers of the political scene, and it certainly would not have shocked James Madison. The nature of factional perfidy may have been different in his day, but he was appalled by the mismanagement of the public good by state governments in the 1780s.

His solution, which more or less became the foundation for our system of government, was not the promotion of public ethics or the narrowing of the sphere of government to provide for a uniform polity, but well-designed structures to "break and control the violence of faction," as he called it in Federalist No. 10. Madison not only assumed that people would work for their own interests above the public interest — he depended upon it. His system invited all factions to join the fray and then checked them against one other, allowing the public interest to be furthered.

As noted above, Madison and the framers left the internal details of congressional organization to each chamber. Indeed, the Constitution does not even require the Speaker of the House to be a member of Congress at all. Still, that is not to say that Madison did not lay down some basic principles that can guide us today. A Madisonian reform agenda for Congress would not blithely wish away the problem of special-interest politics, bar factions from participating, or assume that the only malady is an insufficient number of similarly minded partisans. Instead, it would work to reshape the rules governing factions so that Congress is not unduly influenced by them.

Unfortunately, there is not a lot of good conceptual or practical work being done on congressional reform. Much of the literature on this subject comes from centrist groups that want to end congressional gridlock. But gridlock is not the problem. From a Madisonian perspective, an active legislature is not necessarily a well-behaved legislature: If the Congress is producing lots of legislation, with each law loaded with payoffs to interest groups, it is not likely to be advancing the national agenda. If anything, it only undermines efforts at reform in the long run, as it facilitates the perpetuation of the status quo of interest-group liberalism.

Instead, reformers should seek to break apart the support structures that undergird insider dealing and cronyism. That project is obviously easier said than done, as some key current practices have been in place for over 100 years and will not be easily destroyed. The largely failed attempts of the reformist 104th Congress, when the GOP controlled the House for the first time in decades, are illustrative. Conservatives trumpeted a balanced-budget amendment, term limits, and a line-item veto — all three big, bold ideas that would have made the legislature more responsible — and all three ideas were eventually defeated. It is easy to think of big, broad changes that would sweep out the old regime, just as Gingrich and his congressional majority did. But history teaches us that such grand designs are almost always fanciful. What we need are smaller and more incremental reforms that have a real chance at enactment and can lead to further practical reforms. As the old saying goes: How do you eat an elephant? One bite at a time.

From that perspective, the place to start is a "transaction-cost approach" to reforming Congress. Specifically, it is too much to hope that we might do away with all the perfidious relations between politicians and self-interested factions, but perhaps we can make them more inconvenient. Points of contact between members of Congress and interest groups involve too little friction today. They should be made harder for both to maintain. There are three broad ways this can be done.

First, Congress should deal with conflicts of interest among its members, starting with the committee system. A judge who actively invests in a company that appears before his court must recuse himself, divest from that company, or put his assets into a blind trust, as he cannot be trusted to pursue justice if his own interests are on the line. A similar rule does not hold in Congress. In fact, the opposite is treated as standard; members of Congress routinely take money from political action committees whose donors have a direct stake in the outcome of legislation.

Ideally, this should be stopped altogether, but that is probably not practical. So instead, congressional leadership should mandate a more modest rule change: Chairing an authorizing committee or subcommittee is a public trust, and as such the chair should be barred from taking PAC money from donors whose companies have business before the committee. Would that put these members in some electoral jeopardy? Possibly — although if they have risen through the ranks enough to chair a committee or subcommittee, chances are they come from reasonably safe districts. And anyway, chairmen in danger could rely on other members, leadership PACs, and the Republican and Democratic congressional campaign committees to help them out.

Of course, when it comes to the House and Senate Appropriations, House Ways and Means, and Senate Finance Committees, this rule would effectively prohibit any contributions to the chairman, because everybody has some business before these groups. Moreover, these committees are so powerful that there should be heightened awareness for conflicts of interests even among rank-and-file members who do not have leadership positions. Thus, those committees with such wide-ranging jurisdiction should impose term limits on membership. These should be set long enough that the committees would not suffer from a dearth of experience, but not so long that members could trade on their established committee seats. While the Senate's longer terms make this kind of rule more difficult, eight to ten years would be about right for the House.

Relatedly, there is now a temporary ban on members of Congress becoming lobbyists after they leave office, and for good reason: Scholarly work has indicated that members who ultimately pursue a lobbying career are more likely to use their final year in Congress to curry favor with their future employers. This kind of corruption is understandable from a personal economic perspective, but it is contemptible when viewed in the context of the public interest. The fact that this behavior is widespread suggests that far more needs to be done.

For starters, members who go on to lobby for public-spirited interest groups — like the Heritage Foundation or Americans for Tax Justice — should have a total exemption from such a ban. For any other sort of group, however, members should be barred by a permanent, lifetime ban on lobbying. Moreover, to get around the various loopholes — whereby somebody is actually a lobbyist but not technically a lobbyist — outgoing members should be required to seek employment outside the Beltway for two or three years. It certainly would not be the worst thing in the world for members to return for a brief time to the places that elected them in the first place.

Second, Congress needs to deal realistically with the informational problems that plague its members. One advantage that lobbying shops have is resources. They have plenty of people to provide members of Congress with information on both the policy and political implications of bills. Members of Congress desperately need this information, but they face institutional constraints on acquiring information imposed by the legislative budget. They can hire only so many staffers and pay them only so much. Yet considering the vast array of policy areas on which members must make decisions, these resources are not enough. Members therefore often come to rely on interest groups to help fill the information gaps — which the interest groups are happy to do. The data they provide, of course, is partial and facilitates their own interests.

Moreover, considering the technical nature of the work that congressional staffers do, not to mention the advanced degrees often required for it, the pay is not comparable to what might be earned in the private sector, especially considering the high cost of living in the District of Columbia. Interest groups again can play a role here, as they effectively subsidize congressional staff by promising them good paying jobs, often as lobbyists, after they leave the legislature.

All told, while Congress may make symbolic hay out of a 5% cut to their staff budgets, which the House GOP imposed when it took charge in 2011, the reality is that the work that would otherwise be done is too often outsourced to or underwritten by interest groups. (Citigroup's involvement in the 2014 cromnibus is the archetypal example here.) Thus, Congress needs to do three things. First, it should hire more staffers, especially researchers who can answer the advanced, technical questions that inevitably come up in modern lawmaking. Second, it should pay its skilled staffers more, while also imposing lobbying bans on senior staffers. And third, it should equalize staffing between the majority and minority parties. The latter may be a tough pill for Republicans to swallow, as it would result in more Democratic staffers right now, but so long as job security remains questionable on Capitol Hill, staffers are going to keep their options open, which means bending their ears to interest groups.

Third, Congress should outlaw legislative "logrolls." The heart of a logroll is the basic proposition that, if the individual items in a bill were voted upon, most or all of them would lose, but with a bill that is big enough, everybody benefits just enough to make the whole bill salable. The farm bill is basically a massive logroll between advocates of the urban poor and rural farm interests, and in recent years its size and scope has expanded to ensnare more groups, many of whom have but a tenuous connection to agriculture. Moreover, the breakdown of the normal budgetary process has facilitated omnibus bills that often generate logrolls — the cromnibus of 2014 is again a perfect example. And "emergency spending" bills — for projects as varied as hurricane relief or economic stimulus — are often a place for members of Congress to tack on extraneous spending items.

Historically speaking, logrolls have not been the primary way that members have advanced particular interests. Instead, the usual pathway has been through authorizing or appropriation committees' control over bills within their domains. Members with a "high demand" for, say, defense pork will flock to the defense authorizing committees or the appropriations subcommittee, all of which have advantages to ensure that their members' preferences hold sway. But major logrolls are one of the ways members squeeze through special-interest legislation, and in recent years some of them have gotten worse.

This kind of manipulation of the legislative process has to be brought to an end, and the House Rules Committee is the best vehicle for this change. The committee should be required to vet bills for germaneness and strike parts that are extraneous to a bill's central, stated purpose. Obviously, the whole House should have the option of overriding the Rules Committee and forcing a vote on the floor. After all, germaneness can be a judgment call at the margins, and extreme circumstances might warrant such a judgment. Even with an exception, a germaneness mandate for rules would be beneficial. At the very least, it would force members to demand a logroll through an affirmative vote, rather than having it foisted upon them by leadership as a foregone conclusion.

A CONSERVATIVE BONUS

The 2014 midterm election confirmed another fairly durable, if overlooked, trend within the muddled American political landscape: The Republican party has kept a firm hold on the House of Representatives. The GOP won more than 240 seats and has now controlled the lower chamber for 16 of the last 20 years.

Despite this recent vote of confidence, the country does not appear to think much of the Republican Party. Gallup provides some useful historical perspective on public perceptions of the GOP. In 1995 the two parties were basically tied in terms of favorability, with about 52% of the country viewing each party favorably. Both parties saw a spike in favorability after 9/11, and while the Democratic Party has more or less maintained its favorability since then, the Republican brand has suffered an incredible collapse in public esteem. In April 2014, just seven months before the midterms, the party's net favorability was negative 25 — which one suspects might have been where the Whigs found themselves in 1853. And Republicans in Congress have especially low approval ratings: Poll after poll has found congressional Republicans generating only about 25% approval, compared to nearly 70% disapproval. Congressional Democrats meanwhile consistently poll five to ten points better than congressional Republicans.

(The GOP saw its favorability rebound a bit right after the midterm election, but even then only to negative ten. The Democrats fell to negative 22, a much worse showing than they had seen in years, raising the possibility that this poll reflected more of a post-election afterglow than a shift in the trend.)

Given Congress's unpopularity, perhaps it is no coincidence that the public's impression of the Republican Party, and in particular House Republicans, has declined over the past two decades. Yes, the GOP now controls the House, but perhaps it is equally true that the House now controls the GOP, inducing it to behave in ways that run contrary to the public interest. In other words, possession of the House could help Republicans advance a public-spirited reform agenda, but it could also implicate House Republicans in the regime of interest-group liberalism, leaving them less able to advance meaningful reform. And maybe the public has started to notice, too. Even as the GOP won yet another solid victory in the lower chamber in 2014, it really seems as though we are a long way away from the heady reform days of the GOP "insurgent" class of 1994.

Of course, other factors have surely been at play in damaging the GOP brand — the Iraq War and the recession prominent among them — but it stands to reason that congressional irresponsibility helps explain the GOP's enduring problems. The parties have split control of the Senate over the last two decades, but Republican strength in the House has been durable, and it seems that Republicans will hold the House into the foreseeable future. Republicans are associated with Congress, for better or for worse.

As a result, they stand to gain the most from reforms to Congress that would make it less prone to act against the public interest. Republicans should seize that opportunity now, with strong majorities in both chambers, to institute some difficult but necessary changes. As they do so, they should keep in mind the teachings of Madison and seek to make the work of special interests — "the violence of faction" — more difficult. Doing so will certainly benefit the country as a whole, and it might even help the GOP.