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October 30, 2014

Posts in "Procedural Politics"

October 29, 2014

How Does Campaign Financing Affect Polarization? | Procedural Politics

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Senate leaders Mitch McConnell and Harry Reid testify during a Senate Judiciary hearing on campaign finance. (Bill Clark/CQ Roll Call File Photo)

An interesting debate is swirling around next Tuesday’s midterm elections for Congress. It involves the extent to which the sources, amounts and uses of campaign contributions will affect not only the outcomes of various hotly contested races but the makeup, policy agenda and processes of the next Congress.

The 2010 midterms returned Republicans to power in the House after four years of Democratic rule. They also brought in a wave of hardline tea party conservatives who made any kind of cooperation between the House, Senate and White House nearly impossible. The re-election of President Barack Obama in 2012 did not alter that dynamic. If anything, it made governing even more problematic as the 2013 government shutdown amply demonstrated.

Two events this month helped highlight the nexus between campaign financing and polarization in Congress. The Bipartisan Policy Center convened a roundtable Oct. 16 that brought together scholars, political practitioners, good government groups and journalists to discuss whether the current state of campaign financing is responsible for the increasing level of polarization and gridlock in Congress. 

The Lyndon B. Johnson School of Public Affairs hosted the second event Oct. 20 in Austin, “Mastering Congress: Political Reform 50 Years After the Great Society.” The program featured two former Texas congressmen who serve on the BPC Commission on Political Reform, and two political scientists who are coauthors of an award-winning book on the increasing role members of Congress play in raising money for their party campaign committees and other candidates.

Dueling duos of academic election experts kicked-off the former roundtable. Tom Mann and Anthony Corrado, governance studies fellows at the Brookings Institution, take issue with those who assert that campaign finance law restrictions have weakened the parties and strengthened outside groups that tend to support more extreme candidates. They maintain that parties are as strong as ever but that the Republican Party “has veered sharply right in recent decades” producing an “asymmetric polarization” characterized by an unwillingness to compromise and a set of “unusually confrontational tactics.”

University of Massachusetts political scientists Ray LaRaja and Brian Schaffner say their research at the state level suggests Mann and Corrado “could be wrong.” Their study indicates that, “states with party-centered campaign finance laws tend to be less polarized than states that constrain how the parties can support candidates.” This is because party organizations tend to fund more moderate, pragmatic candidates. Both sides of the debate concur that recent campaign financing developments are not the overriding cause of increased polarization but have certainly exacerbated it.

Eric Heberlig of the University of North Carolina and Bruce Larson of Gettysburg College, co-authors of “Congressional Parties, Institutional Ambition, and the Financing of Majority Control,” told the Austin conference about the explosive, coordinated growth since 1990 in campaign giving by members of Congress to their party committees and other candidates. Today, party leaders importune their members to give generously to their party campaign committees. The leadership establishes quotas for overall giving to the party depending on a member’s position in the leadership or on committees.

Consequently, members spend less time on their legislative work in Congress and more time raising campaign funds for their own re-election and their party. Former Reps. Henry Bonilla, R-Texas, and Charlie Gonzalez, D-Texas, agreed that members now spend at least one-fourth of their time attending fundraisers and dialing for dollars. Committees consequently are less involved in serious policymaking as party leaders increasingly shape the legislative agenda to satisfy party campaign contributors.  The former congressmen say this shift was especially noticeable beginning in 2006 (Bonilla) or 2010 (Gonzalez).

The increasing role of Super PACs and wealthy, independent donors in recent election cycles poses more unanswered questions about the impact of campaign giving on the agenda and processes of Congress. If there is some correlation between the growth and sources of campaign spending, on the one hand, and legislative outcomes in Congress, then record-breaking campaign spending this cycle could either make the 114th Congress even more gridlocked than its predecessor or more unified and productive around a few select issues — all depending on which party wins the Senate.

Don Wolfensberger is a resident scholar at the Bipartisan Policy Center, a senior scholar at the Woodrow Wilson Center and former staff director of the House Rules Committee.

October 14, 2014

Members’ Day Proposals Reflect Varied Concerns | Procedural Politics

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Scalise testified in favor of re-establishing regular accounts for what are now called Congressional Member Organizations like the RSC. (Bill Clark/CQ Roll Call File Photo)

My previous column left some readers in a state of suspended agitation because I praised the revival of the Members’ Day congressional reform hearing in the Rules Committee (after a 12 year hiatus), but failed to discuss any of the specific proposals recommended. Hopefully this account will douse the ire, though it doesn’t begin to cover all the proposals submitted by the 28 members who offered testimony.   Full story

October 6, 2014

Members’ Day Revives Bipartisan Reform Fest | Procedural Politics

The House Rules Committee recently resurrected a custom first established in 1996 by then-Chairman Jerry Solomon, R-N.Y., inviting members of both parties to testify toward the end of the second session on rules changes they would like to see adopted in the next Congress.  Solomon called the hearing “Members’ Day” to connote the open-ended opportunity for any member to suggest improvements in House operations. 

The hearings produced an array of proposed rules changes ranging from the ridiculous to the sublime.  It also helped affirm that some members still cared about the health and well-being of the institution — a concern that has been dwindling in recent years.  It’s much easier to bash Congress from the inside than to praise or defend it, especially given the foul mood of voters today toward government.

This year, the Rules Subcommittee on Rules and Organization of the House, chaired by Rep. Rich Nugent, R-Fla., hosted the reform fest.Nugent indicated it was the first time since 2002 the hearing had been held.  It was so long ago that ranking subcommittee Democrat Jim McGovern of Massachusetts, first elected in 1996, said he had completely forgotten it had ever happened.  

Nugent also made  clear twice during the hearing that it would not be taking place if it did not have the full blessing and clearance from the Republican leadership — a reminder that Rules is a leadership committee and makes no moves independently, especially as they relate to the operations of the House. 

During the two-hour session on Sept. 17, the subcommittee heard from 15 witnesses (eight Republicans and seven Democrats), who found themselves agreeing more with each other and their Rules Committee interrogators, than disagreeing. Eleven other members submitted statements for the record. 

The hearing was different from the highly charged partisan exchanges that usually take place in the committee’s small hearing room on the third floor of the Capitol.  McGovern didn’t grasp that at first and read a prepared opening statement blasting Republicans for their procedural unfairness and record-breaking number of closed (no-amendment) rules.  When it became apparent this would not be the usual bare-knuckled committee brawl, he spent the rest of the hearing praising the chairman and witnesses from both parties on their thoughtful contributions.

Following the session, first-term Rules Committee Chairman Pete Sessions, R-Texas, issued a statement saying the purpose of the hearing was to provide a forum for members of both parties to offer ideas on “how we can build on the positive reforms we have put in place over the last several years.”  Sessions said his goal as chairman “is for members to play an active role in shaping the rules package for the next Congress,” and that the hearing “was an important first step in that process.” 

If it were any other committee, such kudos and commitments might be taken as perfunctory nice-speak, signifying little.  Hearings are, after all, one way chairmen give their colleagues something to take credit for without having to give away the legislative store.  But the Rules Committee is a horse of a different color, not prone to making symbolic gestures, let alone to dispensing party favors across-the-aisle. 

Having worked closely with the committee over nearly three decades, including serving as Solomon’s chief-of-staff when the members’ day custom began, I sensed this was a genuine first step being taken by Boehner, through Sessions, after a 12-year hiatus, to signal a more inclusive and collegial tone and direction for the next Congress.  I could be wrong. It wouldn’t the first time my optimism has outraced reality.  But I also sense that House members, reflecting public demands to end gridlock, are ready for change and that this may be the real deal.

Don Wolfensberger is a resident scholar at the Bipartisan Policy Center, a senior scholar at the Woodrow Wilson Center and former staff director of the House Rules Committee.

September 29, 2014

Ding-Dong Bell, Let’s Go Poison the Well | Procedural Politics

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Republicans and Democrats called on Gingrich to move one-minute speeches in 1996 amid increasing partisan acrimony. (Bill Clark/CQ Roll Call File Photo)

Every year I take a group of Wilson Center fellows to Capitol Hill where we observe an hour of House proceedings from the gallery.  Some of the fellows, especially those from other countries, are both fascinated and perplexed by the opening ceremonies — the prayer, the pledge, the welcoming of a guest chaplain, followed by a series of one-minute speeches by members on anything they want to talk about.  

I tell the fellows this opening round of mini-speeches has been dubbed by someone, “the one-minute happy hour” because it is such an eclectic slice of Americana, from praising the hometown football team on winning the state championship, to commending a 100-year-old couple from the district on their 80th wedding anniversary, to blasting the opposition party. 

In the latter case, I inform the group that priority seating in the front row of the chamber goes to two groups of ringers on either side of the aisle dividing the parties. They lead off with their scripted, political messages, with recognition alternating between the parties. The Republicans call their speakers “The Theme Team,” and Democrats call theirs “The Message Group.”  The remarks are usually a mix of the positive and negative, from touting the party’s programs and accomplishments to criticizing the opposition party’s irresponsible policies.

To a visitor in the gallery it might appear that the bells convening the day’s session have triggered a partisan Pavlovian response.  In 1996, one-minutes got so nasty that a bipartisan group of 50 members wrote to then-Speaker Newt Gingrich, urging him to move one-minutes to the end of the day because the partisan punch lines were poisoning the well of the House before the day’s legislative business even began.  It reminded me of the nursery rhyme, “Pussy’s in the Well,” but with a twist: “Ding-dong bell, let’s go poison the well.” Full story

September 15, 2014

War Powers Resolution Nags a Reluctant Congress | Procedural Politics

In his Sept. 10 address to the nation, President Barack Obama asserted he already had authority to go after the Islamic State of Iraq and the Levant but would welcome congressional action to underscore the U.S. commitment. Leaders of both parties in Congress, while supportive of the president’s aims, visibly balked at holding a direct vote to authorize military action, at least before the midterm elections. It was a rare profile in bipartisanship if not courage.

To date, the president has been pursuing a limited mission to protect American personnel and threatened religious minorities in Iraq. Obtaining a full-fledged congressional debate and vote for wider military action would both educate the public and fulfill Congress’ responsibilities under the war powers resolution. Failure to pass such a measure, however, would throw the administration’s foreign policy credibility into further disarray.

A year to the day before his Sept. 10 address to the nation, the president asked Congress for authority to enforce his “red line” against Syria for using chemical weapons on its own people. Congress made clear then it didn’t want such a vote and that, if taken, it would fail. Before the matter came to a head the confrontation was preempted by a Russian-brokered deal with the Assad regime.

By contrast, in 2011, the president avoided seeking such a vote from Congress for the NATO air strikes against Libya’s Gadhafi regime to head-off an anticipated massacre of civilians. The president leaned instead on support from the Arab League and United Nations.

The War Powers Resolution was enacted by Congress in 1973 over President Richard Nixon’s veto. Nixon and all his successors called the act an unconstitutional intrusion on their authority as commander-in-chief to protect the nation. Especially objectionable was the requirement that, absent congressional approval, troops must be automatically withdrawn from hostilities after 60 days, or 90 days if the president certifies additional time is necessary to ensure their safe withdrawal.

The act was plagued from the start by ambiguities because a House-Senate conference committee did not fully resolve differences between the bodies. One section specifies “only” three situations in which the president can commit troops to hostilities: A declaration of war, specific statutory authorization, or to repel a direct attack on the U.S., its territories or armed forces.

Another section requires the president to report on situations in which U.S. forces “are introduced into hostilities or situations where imminent involvement in hostilities is clearly indicated by the circumstances,” or “into the territory, airspace or waters of a foreign nation while equipped for combat” — all without specific reference to any attack on the U.S., its territories or armed forces.

Not surprisingly, a group of 15 House members initially voted against the legislation for fear future presidents would consider it a three-month free pass to wage war anywhere for any reason without congressional acquiescence. That concern has proved especially prescient.

Presidents have generally honored the law’s reporting requirements when committing U.S. forces to hostilities or imminent hostilities. In the meantime, unless specifically asked for authority by the president, Congress prefers to avoid a vote on extending troop commitments beyond the deadline and does not insist on their automatic withdrawal thereafter. The unauthorized bombing war over Libya, for example, went on for seven months as the mission morphed from humanitarian to regime change.

Obama’s claim that he has authority for the latest military campaign under the 2001 Authorization for the Use of Military Force ignores Congress’ specific rejection in that instance of broader language requested by the Bush administration. In addition to requesting authority to “use of all necessary force” against those responsible for planning, authorizing, committing, aiding or harboring those who committed the 9/11 attacks, the administration wanted blanket authority to “to deter and preempt any future acts of terrorism or aggression against the United States.” Congressional negotiators said “no.”

The Constitution is clear that the power to declare war resides in Congress. History shows, however, that the residents aren’t always home or answering the door when a president or circumstances come knocking.

Don Wolfensberger is a resident scholar at the Bipartisan Policy Center, a senior scholar at the Woodrow Wilson Center and former staff director of the House Rules Committee.

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September 9, 2014

Kevin McCarthy Pledges Return to Regular Order | Procedural Politics

Newly minted House Majority Leader Kevin McCarthy, R-Calif., began his first day on the job promising committee process, regular order and civility — a good start and tall order.

In his Aug. 1 Washington Post op-ed, the California Republican observed that committees “act as idea factories for policies from both sides, and as majority leader I will commit to the committee process and regular order.” Moreover, he recognized that building relationships is essential “to help restore civility,” and said that while “friendships alone won’t break Washington’s logjam, … a sense of mutual respect is necessary for constructive dialogue.”

In those simple phrases, McCarthy summed-up what many both inside and outside Congress, including the past four speakers, have been saying for years is wrong with Washington and what should be done to fix it. One of the most recent outside critiques to that effect comes from the Bipartisan Policy Center’s Commission on Political Reform, co-chaired by former Senate majority leaders Trent Lott and Tom Daschle, former Sens. Olympia Snowe and Dirk Kempthorne, and former Agriculture Secretary Dan Glickman.

The 29-member bipartisan commission, with which I had the pleasure to work, issued its final report on June 24, “Governing in a Polarized America: A Bipartisan Blueprint to Strengthen Our Democracy.” The three-part analysis covers problems with elections, Congress and citizen engagement. In the Congress piece, the commission identifies “the re-election imperative” as driving the modern culture of Congress, with power now concentrated in party leaders at the expense congressional committees and “a culture of positive legislating.”

The commission does not recommend a comprehensive set of formal rules changes for what it sees as a dysfunctional Congress but instead proposes a series of common sense building blocks to engender trust among members, across parties and branches, and through a fully-functioning committee system.

Five-day workweeks, with three-weeks in Washington synchronized between the bodies, followed by one-week district and state work periods, are urged to enable Congress to properly perform its legislative responsibilities. A two-year budget and appropriations process is put forward both to ensure greater fiscal regularity and give authorizing committees time to carry-out their policymaking and oversight roles.

Periodic bipartisan caucus gatherings, both to explore areas for joint action and to build closer relationships among members across party lines are proposed, as are more frequent bipartisan leadership meetings with the president. Majority and minority party members alike should be afforded greater opportunities to participate in committee, floor and conference deliberations to foster consensus building around legislative products that can garner public acceptance.

How is it that that so many leaders of both parties have periodically called for restoring the regular order but have failed to make good on their promises? It’s not a matter of hypocrisy, a lust for personal power or opposition party resistance. It is due more to a culture of convenience that has grown up around non-deliberative legislative shortcuts that free-up members to spend much of their time in Washington raising campaign funds for themselves and parties, followed by four-day weekends in their home states mending political fences (and raising more campaign cash).

The re-election imperative and culture of convenience are powerful counterforces against restoring a culture of legislating. To make that transition will not require a major overhaul of House and Senate rules but simply a strong commitment by leaders and followers alike to reactivate a legislative process already in place and bind it with the types of relationships the new majority leader says are essential to a civil, functioning body.

Cultural change is an arduous challenge but most members realize our system cannot go on as it has –hyper-polarized and gridlocked — and survive. Members must work at reestablishing the respect and confidence of the American people and that means working once again as a full-time, fully representative legislative body. Happy Constitution Day next week!

Don Wolfensberger is a resident scholar at the Bipartisan Policy Center, a senior scholar at the Woodrow Wilson Center and former staff director of the House Rules Committee.

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August 11, 2014

Number of Laws Congress Enacts Isn’t the Whole Picture | Procedural Politics

The 113th Congress may well become the least productive Congress in modern history based on the number of bills signed into law. That is the measure many observers use to assess the institution’s productivity. But it does not provide the most complete or accurate picture.

As of Aug. 1, only 142 bills have been enacted into law, of which 118 or 83 percent have been non-controversial and bipartisan in nature. For that latter category, I look at public laws that initially pass the House under the suspension of the rules process that allows only 40 minutes of debate, no amendments and requires a two-thirds vote for passage. The most notorious suspension bills, accounting for 14 percent of all suspension laws in this Congress, are those naming (or renaming) post offices, federal buildings, court houses and veterans’ facilities after notable constituents.

Other suspension bills strike gold coins, designate memorials, monuments or historic sites, convey federal lands or buildings to localities, or deal with national parks, wilderness areas or Indian tribes. A few suspensions reauthorize expiring agencies and programs, usually without major changes. I once presented a paper on the increasing use of suspension bills, “Suspended Partisanship in the House: How Most Laws Are Really Made,” which a noted political scientist later cited as evidence Congress is not totally partisan.

A three-dimensional look at the changing numbers, size and content of laws over the last three decades (1983-2012) reveals the following: the number of public laws has dropped 62 percent, the number of pages per statute has increased by 52 percent and minor laws (suspensions) have jumped from 35 percent to 79 percent of all laws. Put another way, Congress is shying away from more substantive, controversial legislation today in favor of passing home crowd pleasers.

Divided party government and the fierce competition for control of both chambers every two years are largely responsible for the discrepancy between legislative input and final output as both parties use legislation more for campaign messaging than actual policymaking. This is evident in the number of measures passed versus those enacted as of Aug. 1. The House passed 509 bills, including 39 measures from the Senate, while the Senate passed 224 bills, including 116 from the House.

When one subtracts the 106 House originated bills and 36 Senate bills that have become law, there remain 354 House passed bills still pending in the Senate and 72 Senate passed bills pending in the House (including comprehensive immigration reform).

The disequilibrium is further illustrated by the Senate’s failure to pass any of the 12 regular appropriations bills, even though the House has passed and sent over seven of the measures and the Senate appropriations committee has reported eight.

It was once a joke among House members that the Senate is the place where good House bills go to die. That observation no longer evokes even a chuckle from the lower body. Senators of both parties have also expressed frustration about the paltry number of bills considered and amendments they have been allowed to offer over the last several months. The exceptions are the scores of amendments the majority leader has offered to “fill the tree” and block others’ amendments.

The majority blames the inaction on minority obstruction in the form of threatened filibusters and politically toxic amendments while the minority blames majority trepidation about taking any action that might have political consequences. The problem is, Congress is supposed to be the place where politically consequential actions are taken, not a safe house for the politically faint of heart. Past Congresses cast tough votes and let the electoral chips fall where they may. Today, members are apparently counting on voters not calling in their chips for lack of sufficient active players.

Don Wolfensberger is a resident scholar at the Bipartisan Policy Center, a senior scholar at the Woodrow Wilson Center and former staff director of the House Rules Committee.

July 28, 2014

Speaker’s Lawsuit Against Obama Is a Longshot | Procedural Politics

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(Tom Williams/CQ Roll Call)

Speaker John A. Boehner’s plan to sue the president for overstepping constitutional boundaries has produced a cascade of volume and verbiage in media echo chambers. In a memo to his colleagues, Boehner explained, “President Barack Obama has declined to faithfully execute the laws of our country — ignoring some statutes completely, selectively enforcing others, and at times, creating laws of his own.” The president in return has called the suit a “stunt” and waste of taxpayer dollars.

I give the speaker two cheers for standing up for the institution of Congress in the face of what he perceives as questionable unilateral actions by the president to get what he wants. The president did give Congress fair warning of his intentions last January when he said, “We’re not just going to be waiting for legislation in order to make sure we’re providing Americans the kind of help they need.” He added, “I’ve got a pen and I’ve got a phone…and I can use that pen to sign executive orders and take executive actions….”

The speaker’s initiative is designed in part to divert and relieve pressures from some in his party who want to impeach the president — something that would be politically suicidal and downright stupid. However, I have withheld the third cheer for the speaker’s stand because I think the judicial route is a long shot and the wrong shot.

It is a long shot because the odds are heavily against Congress being granted standing as an injured party in the president’s delay of the health care act’s employer mandate which is the target of Boehner’s suit. Even if Congress clears that hurdle, the courts would likely dismiss the suit as a “political question” between the branches — something in which courts have traditionally been reluctant to intervene.

It is the wrong shot because Congress should not be entrusting its fate to the third branch of government. If Congress clears the first two hurdles, the Supreme Court could well rule against it: hard cases make bad law and mad lawmakers. Even if not, such a precedent can only enhance the powers of the courts if either of the first two branches can go running to them any time it has a dispute with the other branch and expect intervention.

I am reminded of hearings before the Joint Committee on Congressional Operations in February 1974 on “Congress and Mass Communications.” The hearings were prompted by a persistent 20th century concern that the legislative branch was losing public confidence, power and stature vis-a-vis the executive, in part because the president dominates the airwaves (though President Richard Nixon’s press at the time wasn’t all that great in the wake of Watergate scandal revelations).

My boss then, GOP Congressman John B. Anderson of Illinois, cautioned the committee against falling into the “media mandate trap” of tailoring legislative behavior and actions to maximize media coverage. He quoted Yale law professor Alexander Bickel’s testimony earlier in the decade on war powers: “The way for Congress to resume control over the foreign and war policy of the United States is to resume. The way to redress the balance is to redress it — by action.” Paraphrasing Bickel’s sentiments, Anderson said: “The way for Congress to make the news is to make news. The way to redress the balance is to redress it — by action.”

House Republicans are understandably angry over the president’s repeated assertions they have not taken action to help the middle class when in fact they have enacted several jobs-related bills and passed dozens of others that have gone nowhere in the Senate. Meantime, the president is doing what his predecessors have done by acting unilaterally to implement his agenda.

Whether Obama is pushing the constitutional envelope or shredding it is a matter of interpretation. Regardless, the two branches can better address their differences by reengaging each other in the national interest than by waging perpetual spitting matches in the national media.

Don Wolfensberger is a resident scholar at the Bipartisan Policy Center, a senior scholar at the Woodrow Wilson Center and former staff director of the House Rules Committee.

July 15, 2014

Budget Act Anniversary Prompts Introspection | Procedural Politics

Any anniversary divisible by ten, whether of a country, institution or historic event prompts a spate of news articles, speeches and special commemorations that inevitably pose the question: What does it mean today?

The Congressional Budget and Impoundment Control Act, signed into law by President Richard M. Nixon on July 12, 1974, is no exception. The Bipartisan Policy Center (where I am a resident scholar) marked the anniversary this week with a symposium, “The Congressional Budget Act at 40: Midlife Crisis?” I half-seriously suggested amending the title by adding, “or Terminal Illness?” Judging from comments made at a recent congressional hearing on budget reform, the current process is badly broken and in need of either substantial renovation or immediate demolition.

Any reassessment of the Budget Act requires understanding what Congress originally had in mind when it superimposed two new committees, a joint office, and an entirely new process on top of existing authorizing and appropriations processes. We can then determine how well the Act has met those expectations, as well as subsequent demands placed on it, over the last four decades.

As a staffer for a prominent member of the House Rules Committee where the final budget act language was hammered out in 1973-74, I observed two distinct expectations for the process emerging from liberal and conservative ranks. That produced a curious convergence of overwhelming bipartisan support for the Act though both camps would later see their hopes dashed.
Liberals saw the new process as a way to break the stranglehold conservative appropriators had on spending levels so that Democratic majorities in Congress could set their own priorities, independent of the president’s budget. Conservatives, including President Nixon, saw the process as a device for asserting control over the entire budget, making it easier to reduce spending and deficits.

Allen Schick, who helped shape the Budget Act a Congressional Research Service staffer at the time, later came down squarely in the middle of the two camps in his definitive work on congressional budgeting, “Congress and Money” (1980). He correctly points out that the budget law as drafted was fiscally neutral. It had no bias for or against more spending or lower deficits. The process was whatever Congress decided to do with it each year.

But that neutral statutory scheme did not last long as deficits continued to mount through the 1980s and the public became more concerned about where it all was taking the nation. The 1985 Gramm-Rudman-Hollings Balanced Budget and Emergency Deficit Control Act put a definite anti-deficit spin on the Act by establishing a downward glide-path in deficits culminating in a balanced budget. When that didn’t work, the Act was further amended in 1990 by the Budget Enforcement Act to establish discretionary spending ceilings plus a pay-as-you go requirement to offset entitlement benefit increases and tax cuts so they would be deficit neutral.

The brief period of budget surpluses at the turn of the century diverted attention from the necessity of such mechanisms and Congress hasn’t had the will or inclination since to confront the real source of reemerging deficits — the explosive growth in entitlement programs like Medicare, Medicaid and Social Security which comprise 65 percent of the budget. Instead, the two parties argue over appropriate levels of defense versus domestic discretionary spending which account for just 29 percent of the budget. Those are the fights, along with politically charged policy riders, that have so paralyzed Congress that it can’t adopt a final budget resolution or separately enact any of the 12 regular appropriations bills.

One thing the two sides can agree on is that the process must be broken because it is not advancing either party’s causes, outcomes or public reputation. The budget process has always been a convenient whipping boy at such junctures, especially since those wielding the whips are not about to turn them collectively on the real perpetrators of dysfunction.

Don Wolfensberger is a resident scholar the Bipartisan Policy Center, a senior scholar at the Woodrow Wilson Center and former staff director of the House Rules Committee.

July 1, 2014

Defense Signing Statement Reveals President’s Prescience | Procedural Politics

One of my first columns for Roll Call was about the furor over President George W. Bush’s use of signing statements (“The Problem Isn’t Signing Statements; It’s Enforcing the Laws,” Aug. 14, 2006). I was reacting to an American Bar Association task force report that concluded that such statements, issued when a president signs a bill into law, are “contrary to the rule of law and our constitutional system of separation of powers.”

The report went on to recommend that the president veto any law he considers unconstitutional and that Congress enact legislation requiring the president to provide Congress with copies of all signing statements along with the reasons and legal basis for any provisions of law he claims authority to disregard, ignore or refuses to enforce. Moreover, Congress was urged to give itself standing in the courts to obtain a declaratory judgment on the legality of signing statements. The ABA’s House of Delegates subsequently endorsed the report.

Full story

June 13, 2014

First, Chill All the Lawyers in Congress | Procedural Politics

To put a gentler twist on Shakespeare’s more drastic remedy: The first thing we do, let’s chill all the lawyers in Congress. That way they may become cool and practical legislators.

I say that as one who has great respect for lawyers. My father wanted me to be one (I am not); I am married to one; and half my wonderful bosses on the Hill were lawyers before they became lawmakers. Having served with lawyer members and staff alike, I know they bring a critically trained eye to policy problems and legislative draftsmanship. There is something about an appreciation for the law that makes you more cautious about drafting new ones.

Having paid that well-deserved tribute to the lawyer class in Congress, I still have a brief grief with a small coterie of legal beavers who gnaw so much on their trees of legalese they lose sight of the legislative forest.

I hadn’t really thought of it until someone told me of meeting with a group of members to discuss some of the major policy issues confronting the nation and what they were doing about them. Instead of demonstrating any considered appreciation for the causes and consequences of the problems and their solutions, the members wandered off onto esoteric legal side streets and cul-de-sacs, all the while ignoring “the meat of the coconut” (as one of my non-lawyer bosses used to call it). This may be a useful tack at an ABA seminar on an obscure section of federal contract law, but it does not resonate with John Q. Citizen who is more concerned about jobs and the economy.

So why do some members get so sidetracked? I don’t think it is to impress anyone with their legal acumen; they know that only turns most people off. Nor do I think it is necessarily an intentional device to avoid talking about the real nature of the problem at hand. But that is getting closer. Usually it bespeaks members’ limited familiarity with the details of the multiplicity of things they are expected to grapple with in each Congress.

Sometimes it reflects a legal angle from their leadership’s talking points about pending issues. Quite often those are part of the larger party message machine on how to parry criticisms from the opposition about the party’s policy positions (or lack thereof). Clever legal arguments can be effective (or at least deflective) defense mechanisms.

Think of it as dueling moot court teams exchanging what they hope are winning gotcha points. Unfortunately, that only tends to impress other lawyers and skirt the coconut altogether. Still, you go with what you know to show some understanding of the situation.

I won’t go into examples here but they become apparent once you start considering arguments being advanced using this template. They can be found in discussions of mega-problems from global warming and legal culpability for it to immigration laws and enforcement technicalities. And it can be found in congressional investigations of government scandals that often get hung-up on the legal vulnerabilities of witnesses instead of addressing the actual sources of systemic government failures and correcting them.

Many of these legal haggles are tied to the permanent campaign and individuals seeking to score legal points for partisan gain. While it is not effective with average voters, as already mentioned, it does feed a certain element of the political base of both parties that sees the tight political struggle for power as depending in part on superior legal arguments to bolster the parties’ policy positions. Some of those legal disputes end up as frivolous lawsuits filed by partisans to tie opponents down.

Former Democratic Speaker Champ Clark of Missouri (1911-1919) recounts in his memoir Supreme Court Justice David Brewer’s observation that, “America is the paradise of lawyers.” No one has ever accused Congress of inhabiting such a lofty perch.

Don Wolfensberger is a resident scholar at the Bipartisan Policy Center, a senior scholar at the Woodrow Wilson Center and former staff director of the House Rules Committee.

May 15, 2014

Ukraine Crisis Dimly Illuminates Public Ambivalence | Procedural Politics

In our democratic policy process, there is an obvious link between popular sentiment and our elected leaders. However, matters can be somewhat murky when it comes to foreign policy. That’s due in part to the deference paid by the people and Congress to the president’s role in acting and speaking for the nation, at least at the outset of international incidents. It is also due in part to the public’s low level of knowledge and interest in foreign affairs.

President John F. Kennedy perhaps best explained why foreign policy should be treated differently. In a Salt Lake City speech in September 1963, he said, “The purpose of foreign policy is not to provide an outlet for our own sentiments of hope or indignation; it is to shape real events in a real world.”

Still, Congress and public opinion do come into play whenever an international crisis erupts. The current crisis involving Russian military intervention in Ukraine helps illuminate the complex dynamic at the intersection of the presidency, Congress and the people.

President Barack Obama’s policy of not providing lethal military assistance to Ukraine while working with our allies to marshal diplomatic and economic pressures against Russia is consistent with his overall foreign policy approach. If there is an emerging Obama Doctrine it involves encouraging multilateral action when the U.S. is not directly threatened. The reluctance to reengage militarily anywhere is consonant with the wishes of Congress and the people in the weary wake of the wars in Afghanistan and Iraq.

A late April poll by NBC News and the Wall Street Journal showed 45 percent disapproval of the president’s handling of the Ukraine crisis, and only 37 percent approval — a turnaround from an early March poll by the same pollster showing a 43 percent-41 percent approval-disapproval breakdown. A larger number in the most recent poll, 53 percent, disapprove the president’s overall handling of foreign policy, with just 38 percent approving.

Foreign affairs analyst Robert Kagan surmises that this paradox of greater dissatisfaction with the president’s overall handling of foreign policy compared to his specific policies can be attributed to public unhappiness with America’s perceived retreat as leader of the free world.

That same late April NBC/WSJ poll showed 47 percent favored a less active U.S. role in world affairs, 19 percent favored a more active role, and 30 percent favored current levels of involvement. However, 55 percent agreed we need a president “who will present an image of strength that shows America’s willingness to confront our enemies and stand up for our principles.” Just 39 percent felt we need a president who shows a more open approach and willingness to negotiate with friends and foes alike.

On Ukraine, this ambivalence over foreign policy played out in Congress, with some members noisily criticizing the president for not providing more military aid to Ukraine and for not imposing tougher sanctions on the Russians, while others were quietly content to use less dramatic means to defuse the situation. Congress moved haltingly in the early days of the crisis, balking at the administration’s requested reforms in the International Monetary Fund to better deal with economic crises like Ukraine.

What started as a more ambitious 40-page bill devolved into two modest laws totaling 12 pages. One provided $1 billion in loan guarantees for Ukraine, authorized $50 million in democracy support, and imposed mandatory targeted sanctions on the Russians. The other authorized (but did not appropriate) an additional $10 million in stepped-up Radio Free Europe/Radio Liberty and Voice of America broadcasts to the region. Sen. Angus King, I-Maine, said of the broadcast booster: “As drafted, it is an unfunded mandate.”

The public was probably unaware of either enactment because the measures tiptoed through and around committees of jurisdiction without recorded votes or reports and then passed both chambers overwhelmingly without controversy, fanfare or signing ceremony. For Congress the watchwords were bipartisan, “first step” and presidential support, while it stayed far enough back should anything go wrong. It might be called, “following from behind.”

It is hard to grasp how the most transparent branch of government can sometimes stutter-step so stealthily. But, as a reactive and representative body it is simply reflecting in a mirror dimly the people’s mixed mindset.

Don Wolfensberger is a resident scholar at the Bipartisan Policy Center, a senior scholar at the Woodrow Wilson Center and former staff director of the House Rules Committee.

April 28, 2014

Does Congress Care About Public Opinion? | Procedural Politics

Do members of Congress care what the people think of them? With Congress’ job approval running at historic lows, you might conclude they don’t care because they don’t seem to be doing anything about it.

If you ask members directly whether they are concerned about public opinion polls showing them mired in a swamp of low esteem, you will likely get the curt response: “I don’t need public opinion polls to tell me what my people think. I am back in my district every weekend listening to them.” Pressed further, they might tell you the people are indeed angry with Congress, but very supportive of their own member’s tough stands on the issues.

This ambivalence is reflected in those polls that differentiate between job approval of Congress and approval of the respondents’ own representatives. A March poll commissioned by the Bipartisan Policy Center in conjunction with USA Today showed Congress’ job approval rating at just 19 percent, while people gave their own representatives a 52 percent approval rating.

The gap between institutional and individual approval has remained relatively constant over time, though both ratings are down roughly 10 percent from historical averages. The disparity between Congress’ approval and that of one’s own representative even has a name, “Fenno’s Paradox,” after political scientist Richard Fenno. He identified the anomaly in a 1972 lecture titled, “If, as Ralph Nader Says, Congress Is ‘the Broken Branch,’ How Come We Love Our Congressmen So Much?”

The reasons for the difference are not difficult to discern. Voters tend to know more about their representative than about Congress itself, and their views of the former are based on what they feel their member has done for the district and individual constituents. The typical constituent’s view is, “Our member is a smart, hard-working and caring person. It’s the rest of them who are a bunch of lazy bums.” That helps explain why incumbent re-election rates continue to exceed 90 percent even when Congress is only scoring 20 percent favorability ratings.

People have a negative view of Congress because they think it accomplishes little and is intent on waging noisy, partisan battles that usually end in stalemate. Pummeling Congress has been a popular national sport since the beginning of the republic, with everyone playing offense: the media, the public and even members themselves. Those negative attacks tend to feed on each other and grow.

That is not to say criticism of Congress is not usually justified. However, even when Congress manages to accomplish some the important things, they tend to be incremental and barely noticed, leaving the institution with precious little credit, recognition or respect.

So why hasn’t Congress done more to dispel this stereotype of a do-nothing, gridlocked body? One of the reasons previously alluded is that members think they are acting and voting in accord with what their constituents want. Never mind that voters want two different things simultaneously. According to the BPC/USA Today poll cited above, 80 percent of respondents feel their representatives should vote for what the people they represent want as opposed to 17 percent who feel members should vote according to their own conscience and experience.

However, only 29 percent think members should stick to their principles and do what they and their constituents think is right, even if it means not passing legislation that addresses serious problems. Sixty-seven percent think members should work across party lines and engage in give and take to come up with solutions to the nation’s problems, even if it means giving in on some of their principles.

While those responses may seem contradictory, they actually reflect a common conviction by the people of why they send their representatives to Washington in the first place: They fully expect them to work things out among themselves through consensus building and compromise when it is in the best interest of the nation. It is all about governing.

As Rep. John D. Dingell, D-Mich., recently reminded his colleagues upon announcing his retirement, Congress means “a coming together.” The fact that members instead seem to be flailing apart bespeaks a basic misunderstanding of their constitutional role. Maybe in addition to opening each day’s session with a prayer and the pledge, members should be forced to watch that classic kids’ cartoon, “School House Rock,” on how a bill becomes a law.

This will be my last column with Roll Call due to new directions at the publication. I simply want to thank Roll Call for carrying “Procedural Politics” since 2006, and for all its editorial support along the way. I am especially grateful to the many faithful readers of the column for their encouraging comments and suggestions over the years. I expect to continue publishing elsewhere in a similar vein, at least until we get Congress right. Until next time …

Don Wolfensberger is a resident scholar at the Bipartisan Policy Center, a senior scholar at the Woodrow Wilson Center and former staff director of the House Rules Committee.

April 1, 2014

Discharge Petitions Are Useful Minority Tools | Procedural Politics

Perhaps only Congress can invent a tool that it fully expects will rarely perform its intended function. It’s called the discharge petition, a device designed to dislodge bills stuck in committee. This year, House Democrats have filed three such petitions on issues they hope will propel them back to majority status in the midterm elections — a minimum wage increase, an immigration overhaul and unemployment compensation.

The original House discharge rule was adopted in 1910 as a further blow for majority rule just three months after minority Democrats and insurgent Republicans ousted Speaker Joe Cannon as Rules Committee chairman. Under the modern version of the rule, adopted in 1931, a member can file a petition on a motion to discharge any bill that has been pending in committee at least 30 legislative days or on a special rule for consideration of such a bill if the rule has been in the Rules Committee for at least seven legislative days. The advantage of discharging a special rule is that it keeps the process alive even if the bill is reported from committee. A petition directly discharging a bill from committee is dead once the committee reports the measure.

When a petition gains 218 signatures (a full House majority), the motion to discharge is placed on the discharge calendar. After seven legislative days it can be called up on the second or fourth Monday of the month by any member who signed the petition. If the motion is adopted after 20 minutes of debate, the House proceeds immediately to consider the bill or special rule.

On Feb. 26, Democratic Rep. Timothy H. Bishop of New York filed a discharge petition on a bill introduced last year by Education and the Workforce Committee ranking Democrat George Miller of California to increase the federal minimum wage from $7.25 to $10.10 an hour. The petition, filed at the clerk’s desk at the front of the House chamber, currently has 195 of the requisite 218 signatures.

Because Bishop filed his petition directly on the Miller bill and not on a special rule, he is counting heavily on Education and the Workforce Republicans not reporting the bill to vitiate the discharge process. Should the Bishop petition succeed, the House would proceed to consider the bill in the Committee of the Whole subject to up to one hour of debate per member, followed by an open amendment process under the 5-minute rule (an unintended filibuster?)

Coincidentally, the first discharge petition to succeed in the enactment of a law occurred on the very first federal minimum wage law, the Fair Labor Standards Act of 1938. It was an unusual situation because the Democratic majority was twice forced to dislodge a special rule from the Rules Committee for consideration of the Senate-passed 40-cents an hour minimum wage bill reported by the House Labor Committee. In 1937, the Rules Committee was under the control of a conservative coalition of Democrats and Republicans reflecting in part a backlash in Congress against President Franklin D. Roosevelt’s attempted packing of the Supreme Court.

Because the minimum wage bill was recommitted to the Labor Committee after the first discharge success, a second petition was filed in the next session on a new special rule for the same bill after the Labor Committee again reported it. Both discharge moves were led by Labor Committee Chairman Mary T. Norton, a fiery liberal Democrat from New Jersey. The bill’s second iteration scaled-back the earlier 40-cents an hour minimum wage to 20 cents. It overwhelmingly passed the House and became law after a conference with the Senate.

Miller and Sen. Tom Harkin of Iowa, both retiring “Watergate Babies” (class of 1974), succeeded in bringing President Barack Obama around this year to their $10.10 minimum wage bills from the $9 hourly wage the president advocated just a year ago. Miller, former chairman of the House Education and Labor Committee, is rounding-out the circle begun by his 1930s counterpart, Chairman Norton.

Historically, discharge petitions are exercises in futility given majority party opposition. Since 1931, 637 discharge petitions have been filed, including nine in this Congress. Only 47 have reached the discharge calendar — none in the past decade. Only three discharged bills have become law although other targeted discharge measures have been enacted using alternative procedures. Nonetheless, the device remains a useful tool in rallying House minority party members, pressuring vulnerable majority party members, mobilizing grass-roots supporters, raising campaign funds from allied interest groups and educating voters on major issues dividing the parties.

Don Wolfensberger is a resident scholar at the Bipartisan Policy Center, a senior scholar at the Woodrow Wilson Center and former staff director of the House Rules Committee.

March 11, 2014

Is Negotiating Political Agreement a Lost Art? | Procedural Politics

Voters often complain that members of Congress “can’t seem to agree on anything.” You know people are on to something when their own representatives in Washington echo the same complaint — one of the few bipartisan sounds emanating from the capital, if not in perfect harmony.

Political scientists are now weighing in on the same topic though they don’t all agree on the causes and effects of contemporary political gridlock, let alone the cures. Princeton’s Michael Barber and Nolan McCarty recently analyzed some of the popular explanations and remedies in a paper on the “Causes and Consequences of Polarization,” published as part of an American Political Science Association task report on “Negotiating Agreement in Politics.”

The authors concede that “social science research has only recently begun to help shape … discussions on the causes of polarization,” though the reform-minded are already looking for “panaceas” to mitigate its effects. Perhaps ironically, the reforms most backed by the public and press for reducing polarization — neutral redistricting, open primaries and campaign financing changes — have already been found wanting in various studies.

According to the authors, “The evidence in support of gerrymandering as a cause of polarization is not strong,” and “it is implausible that partisan primaries are a major cause of polarization.” Likewise, “there is a weak connection between campaign spending and election outcomes.”

Other reformers look to internal procedural changes in Congress as a way to reduce partisanship and gridlock. They point to the large increase in party-line votes on amendments in the House since recorded votes were first permitted in the committee of the whole in the 1970s. But this does not explain the parallel growth in polarization in the Senate.

Another explanation is the growing powers of party leaders who can exert pressures on members to vote the party line. “Unfortunately,” the authors write, “the effects of party can be recovered only under strong assumptions,” and an alternative methodology actually shows “declining party pressures in the contemporary Congress.”

Rather than look for electoral or discrete procedural fixes to reduce polarization and gridlock, the APSA task force has recommended that Congress relearn the art of deliberative decision-making. That entails using an “integrative negotiation” process in which participants discover or create joint gains beyond what was originally considered the bounds of possible agreement — what they call pie-expanding versus a fixed-pie bias.

The task force members concede “it would be naïve to think that all conflicts can be negotiated,” especially in today’s Congress. Sometimes parties and their allied interest groups prefer electoral gains over substantive solutions. In such cases, they write, “political struggle rather than negotiation may well be the better recourse for altering the status quo.”

But other issues do lend themselves to negotiation and can succeed if “the rules of collective political engagement” are followed. Those rules include a formal role for nonpartisan, technical expertise in advance of specific legislative proposals; repeated interactions among participants to nurture trustworthy behavior; penalty defaults (action-forcing deadlines); and negotiations in private settings that avoid posturing in favor of pondering.

Deliberative negotiation has occurred since the beginning of the republic, the report observes. It is now a matter of convincing Congress to “return to the basics.” The difficulty in implementing such an approach today is that Congress is time-limited while deliberation is a timeless value. Each Congress is under a two-year gun, each committee has only a few hours each week to process numerous pieces of legislation, and each member is buffeted between committees, office appointments, floor votes and fundraisers, all in truncated, three-day workweeks.

Second, it is true that more can be accomplished in candid, private discussions. Sun exposure can be malignant to good-faith bargaining. However, House and Senate rules prohibit closed committee sessions except for sensitive national security matters. Rolling back Congress’ sunshine rules is a non-starter.

Third, it is doubtful that many of today’s re-election-fixated members are willing to master the art of deliberative negotiation, let alone sit through more balanced, thorough and prolonged committee hearings and meetings. Dialing for campaign dollars takes priority.

The main obstacles to results-driven deliberation are a paucity of informed argumentation and an excess of dramacracy — acting out rather than acting on problems. Still, efforts can and should be made to restore some semblance of rational discourse in committees that empowers members of both parties to contribute and benefit. The APSA is to be commended on initiating this back-to-basics conversation.

Don Wolfensberger is a resident scholar at the Bipartisan Policy Center, a senior scholar at the Woodrow Wilson Center and former staff director of the House Rules Committee.

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