Renewing Congress
A Few Ideas for Fixing the US Senate and House of Representatives
This is another commentary in Civic Way’s series on reconstructing American government. The author, Bob Melville, is the founder of Civic Way, a nonprofit dedicated to good government, and a management consultant with over 45 years of experience working with governmental agencies across the US.
Highlights
Our Congress has become a legislative graveyard, a sad place where individual idealism and the public interest are buried beneath noble speeches and reassuring soundbites
The Congress, paralyzed by partisanship and egos, has seemingly lost the ability to confront the future, let alone solve big problems in a constructive, bipartisan manner (the Senate is more the world’s greatest procrastinator than the world's “greatest deliberative body”)
By cutting its own resources and ceding too much of its constitutional role to others, Congress has found it harder to serve the public interests and remember who it is supposed to represent
We must make Congress more representative, by adding Senate and House seats, updating rules, making House districts more reflective of their communities and making House elections more competitive
We must invest more in Congress’ bipartisan staffing capacity to solve long-term problems and bolster its independence from lobbyists
We need a federal budget process with a multi-year horizon, the full integration of costs and performance metrics and the rigorous oversight of agency spending
Introduction
Last month, in a commentary entitled, “Make the Senate Great Again,” Nebraska Senator Ben Sasse sounded the alarm, the “Congress [the Founding Fathers] envisioned is all but dead.” He lambasted the body’s “polarized politics” and “broken budget process” and suggested some “reforms.” A few ideas, such as a new budget process and fund-raising limits, make sense. Others, such as curbing television coverage, instituting a single 12-year term and repealing the 17th amendment, are dubious at best.
Still, the Senator’s willingness to challenge the status quo merits praise. He articulates what most Americans believe—that Congress no longer works. We have many conscientious representatives, but the institution is paralyzed by partisan hostility, distrust and polarization. The latest—and most egregious—example of dysfunction is the Senate’s failure to pass another pandemic relief measure (five months after the House passed its stimulus bill). The Senate can move heaven and earth to fill a Supreme Court vacancy, but cannot pass a critically-needed stimulus package even as the US death toll surpasses 210,000.
A Brief History of Forming and Reforming Congress
The Constitution establishes the Congress in Article I. Congress’ two chambers, the Senate and House of Representatives, share many legislative duties (e.g., passing the same bill), but also possess some unique functions (e.g., the Senate’s power to approve judicial nominees). Section 8 sets forth Congress’ delegated powers, Section 9 its limits and the Necessary and Proper Clause authorizes Congress to enact those laws required to exercise its other constitutional powers.
The House of Representatives has 435 members, one per district. Each state is allotted districts based on population, but every state is allotted at least one (e.g., California has 54 districts, while the smallest states have one each. Since all members have two-year terms, the entire body is elected every two years. The Senate has 100 senators, elected to six-year terms (directly elected by voters since the 17th Amendment was ratified in 1913) and more insulated from public opinion, at least theoretically.
Senator Sasse’s call for reform is not new. There have been many reform efforts, some serious, some frivolous. Joint bipartisan committees produced the Legislative Reorganization Acts of 1946 and 1970, but few sweeping reforms since. In 1984, members began paying Social Security taxes. The 1995 Congressional Accountability Act required members to follow some private sector employment and workplace laws. In 2008, the House created the Office of Congressional Ethics. In 2012, Congress passed the Stop Trading on Congressional Knowledge (STOCK) Act to prohibit insider trading by members.
In early 2019, the Democrat-controlled House passed the “For the People Act” (HR 1) to address some issues (e.g., lobbying), but the bill failed to garner GOP support in the Senate. The House also made some overdue rule changes (e.g., to bar members from corporate boards) and launched a bipartisan Select Committee on the Modernization of Congress. The Committee unanimously approved 97 recommendations for House consideration. Many of these proposals merit approval, but would not address all of Congress’ problems.
Our Feckless, Indifferent Congress
By virtually all accounts, Congress is unable to confront and solve serious problems in a bipartisan fashion, especially problems with long-term implications. The chasm between well-crafted partisan soundbites and thoughtful, bipartisan action grows wider by the year. Bills are passed with backslapping acclaim in one chamber only to die in the other. When landmark legislation is enacted (e.g., 2010 Affordable Care Act), bipartisan support is rare. When Pew Charitable Trusts labels a recent Congress the least productive in modern history, the survey elicits little notice.
This is not to say that the Congress is lazy. Far from it. Its members can move quickly, say when a Supreme Court vacancy arises or a looming reelection campaign needs cash. It just can’t seem to tackle big, long-term threats. For instance, the Congressional Budget Office (CBO), in its recent 30-year budget outlook, projects a doubling of public debt, to 195 percent of our gross domestic product (GDP) by 2050. Despite warnings that massive revenue increases and spending cuts will be needed, Congress finds comfort in the knowledge that tomorrow is another day.
Congressional gridlock is caused by many factors. Congress is not very representative. Today, each House district has at least 20 times more voters than in 1792. Since the 1929 Reapportionment Act, the House has had only 435 seats even as the nation’s population has tripled. The US House also is smaller than the comparable bodies of other democratic nations (e.g., France, Germany, Great Britain and Japan). The Senate represents small rural states at the expense of large urban states. To illustrate, California (39.5 million citizens) and Wyoming (572,400 citizens) each has two senators. And some areas, like DC, Puerto Rico and our island territories, lack Senate representation altogether.
Money is probably an even more influential factor. Per the Center for Responsive Politics, the average cost of winning a Senate race rose from $3.9 million in 1990 to $15.8 million in 2018. In 2018, federal campaigns received $2.8 billion in business donations, up from only $129 million less than 20 years ago. Thanks to recent judicial decisions, more donations are anonymous. Our elected representatives spend more time on fund-raising. And, when it comes to chasing money, divisiveness sells. Worse, when winning elections becomes more important than governing, the people invariably lose.
Ironically, congressional elections have become more costly even as they have become less competitive. This may be partly due to a deep-rooted two-party system that punishes independents, but it is probably better explained by gerrymandering, party primaries and plurality voting. In any event, our legislators have created cartel or legacy districts that help them keep their jobs. Using one reputable competitiveness metric— the Cook Political Report’s Partisan Voting Index—safe districts (i.e., five points more partisan than average) increased from 45 percent in 1997 to 85 percent in 2017. Even in recent so-called “wave elections” (like 2018), less than ten percent of incumbents were defeated.
So, even as lawmakers devise schemes to retain power, Congress’ credibility sinks. Recent Gallup
polls, for instance, show Congress’ approval ratings dropping well below 20 percent. And based on many other polling sources—George W. Bush Institute, Fox News, NBC News, Wall Street Journal and Washington Post—most voters blame moneyed interests for congressional dysfunction. Regardless, the real victim of congressional inertia is our Constitution’s balance of powers, the inexorable ceding of legislative power to the executive branch. And, when the executive branch is led by a divisive, reckless and dishonest narcissist, such legislative impotence puts us all at risk.
The Congressional Addiction to Lobbyists
Lost in the swirling debate about congressional dysfunction is the glaring imbalance between congressional and lobbying resources. The conventional wisdom is that Congress spends too much on itself (its annual budget is about $3.8 billion). The reality is that we spend less on Congress today than 40 years ago. The more salient point is that we spend more on lobbying than on the entire legislative branch which, in turn, increases Congress’ reliance on private interests.
Historically, Congress relied heavily on its staff to analyze policy issues and craft legislation. In 1991, Congress had 27,469 staff, including 17,851 partisan staff (about 65 percent of total staff) and 9,618 bipartisan staff (35 percent). Partisan staff include House and Senate personal and committee staff. Bipartisan staff include the Congressional Research Service (CRS), Congressional Budget Office (CBO), Government Accounting Office (GAO), Capitol Architect and Capitol Police.
By 2015, total congressional staff levels fell by nearly 30 percent to 19,625. All staffing categories experienced declines, but the GAO suffered the most severe cuts. Congress’ technology support also suffered. Interestingly, from 1991 to 2015, the ratio of partisan staff to total staff rose from 65 percent to nearly 70 percent. The partisan staff are primarily distributed among member offices (an average of 14 staff for the House and 34 staff for the Senate), committees (ranging from 20 to 120 for each) and House and Senate leadership offices.
Congress not only has fewer staff, but poorly paid staff. Despite relatively high educational levels (about 85 percent of congressional staff have bachelor’s degree and 20 percent have advanced degrees), notoriously long hours and the constant lure of private lobbying firms, congressional staff pay is relatively low. It has been estimated that some staff compensation is as much as 40 percent below market. This exacerbates staff turnover which, in turn, increases the influence of lobbyists.
As internal congressional resources have declined, external resources have increased. According to the Center for Responsible Politics, lobbyist spending rose from $1.45 billion to $3.51 billion from 1998 to 2019. During the same period, the number of registered federal lobbyists who actually lobbied grew from 10,417 to 11,815. However, since the Lobbyist Disclosure Act defines lobbyist so narrowly (e.g., one must spend at least 20 percent of his or her time lobbying), many lobbyists evade the registration process (and accountability).
In addition, the number of registered lobbyists is but one indicator of external influence. Members often leave office to lobby on behalf of businesses with federal interests. Senators and Representatives are subject to brief lobbying bans (i.e., two years after leaving office for Senators and one year for House members and senior staffers). The foreign entity ban is only one year. Despite the STOCK Act, Congress’ investment culture is lax. And, in recent years, the Supreme Court has done its part to increase corporate clout by narrowing the scope of anti-corruption laws for elected representatives.
“If you’re a lobbyist who never gave us money, I didn’t talk to you. If you’re a lobbyist who gave us money, I might talk to you.”
– Mick Mulvaney, ex-Congressman (R-SC)
So why does this imbalance between internal (congressional) and external (lobbying) resources matter? Isn’t it a good thing when government costs are reduced or when public functions are outsourced? Not always. When legislators cede too much of their constitutional role to private entities, it can become much harder to distinguish private and public interests, and far too easy for members to forget who they are elected to represent. They turn to lobbyists instead of staff to draft bills or they tailor bills to the perceived priorities of the lobbyists who have their ear.
Our Failure-Engineered Congress
If one were to design the optimum model for failure, it would look something like Congress. Autocratic decision-making. Proliferating committees and caucuses. Ineffectual budgeting and oversight processes. Incessant preening and posturing. Dueling ideological silos. Vanishing bipartisan relationships.
Congressional leadership wields far more power than ever before, the result of continual efforts to weaken the once-omnipotent legislative committees. In both chambers, the leadership dictates the legislative agenda, unilaterally denying debate and burying bills. Essentially, no bill is released for a floor vote without party leader approval. And legislative leaders are selected by the controlling party no matter how slim their majority.
Congress has about 200 committees and subcommittees, and few strategies for synthesizing their work. There are three types—standing, select and joint. The Senate has 16 standing (permanent) committees and four select (special) committees. The House has 20 standing committees and five select committees (including the Select Modernization of Congress Committee). The two chambers share four joint committees (i.e., Economic, Taxation, Library and Printing). Most committees have subcommittees, usually three to five each (the House Appropriations Committee has 12 subcommittees). In addition, there are over 850 Congressional Member Organizations (caucuses), twice has many as in 2005.
Congress employs outmoded, unwieldy budgeting and oversight processes. Congress is empowered by the Constitution to approve the federal budget, but this process is antiquated, cumbersome and myopic. Too often, Congress passes annual appropriations bills after the fiscal year begins or, worse yet, allows funding lapses and government shutdowns. It focuses on short-term operating issues at the expense of long-term matters. Public expenditures are not linked in any meaningful way to outcome measures. And the budget format defies easy public access, let alone effective monitoring.
Congressional oversight systems are fragmented and feeble. The confusing alignment between legislative committees and executive agencies complicates congressional oversight. Executive agencies spend without rigorous congressional controls. And congressional investigations are often more political theater than sincere efforts to hold the executive branch accountable.
Many other congressional rules and procedures are archaic, if not inexplicable. They reinforce the quaint propriety of a stodgy business club (e.g., formal dress code and third person references), yet condemn Congress to comical futility. Perhaps the most glaring example is the Senate filibuster rule. The filibuster empowers a minority of Senators to freeze floor activity (except judicial nominees). And, once initiated, the filibuster cannot be ended without a 60 percent vote (cloture). It has become an accidental supermajority threshold for passing bills (and a cynical tool for headline-hunting Senators).
Building a Congress that Works for Us
There are many ideas for reforming Congress, some suggested by members, but real change must begin with building a more representative legislature. Until our Congress truly represents all Americans, not just those on the ideological fringes, it will not likely become the body it was intended to be.
We must first ensure that the US Senate represents all US citizens and strikes a fairer balance among regional interests. Until we come to terms with our nonsensical state boundaries, we can take a few small steps toward this goal. We should give the District of Columbia full state status with two senators. We should authorize Puerto Rico to become a state with two senators (including the US Virgin Islands). We should authorize the Pacific islands (American Samoa, Guam and North Mariana Islands) to become part of Hawaii. And we should explore opportunities for splitting some of our largest states (e.g., dividing California into two states with four Senators also could facilitate future state mergers).
We should make the US House more representative by increasing the number of districts from 435 to 577 (reducing the constituent/district ratio from about 760,900 to 572,400). We should allocate one voting member to the District of Columbia, five to the new State of Puerto Rico (six with the US Virgin Islands) and a third voting member to Hawaii (with the Pacific island territories). Other extra seats could be apportioned to states based on 2020 population estimates (until the 2020 census is completed).
Most importantly, we must do everything we can to make congressional elections more competitive. For too long, we have allowed our elected representatives to choose their voters. Instead, we must wrest control of every state’s redistricting process from politicians and replace self-serving gerrymandering with a bipartisan process that produces compact, competitive districts. We should convert traditional partisan primaries into single, inclusive primaries with ranked choice voting that produce two finalists for the general election without regard to party affiliation.
Perhaps the most frequently discussed congressional “reform” is the notion of term limits. Limiting the service time of an elected representative is not necessarily a bad idea, but it is no panacea. In fact, instituting term limits without other measures (e.g., establishing term limits for registered lobbyists and investing in professional, bipartisan staff resources) would likely increase the clout of special interests. We should take a comprehensive approach. We should consider testing reasonable ideas for limiting service duration (e.g., a mandatory retirement age or an 18-year cap for congressional service), but we should do so in a way that enhances Congress’ ability to serve the public interest.
Investing in an Independent, Productive Congress
If Congress is to be more bipartisan and independent, it must have adequate bipartisan, professional staffing. And that means investing much more in the GAO, CBO and CRS. How much more? We cannot determine the optimum staffing levels for these units without an in-depth staffing study. However, we do recommend some organizational strategies to strengthen Congress’ joint bipartisan staff units.
After years of cutting GAO staff, Congress should reverse course. It should reassess and clarify the GAO’s mission and role, strengthen GAO’s capacity to fulfill that mission and increase GAO staff as needed to carry out that role. As the federal government’s paramount audit agency (the Congressional Watchdog), the GAO must have sufficient resources to carry out fiscal audits, program evaluations and other investigations. The top priority should be to add qualified staff to conduct program evaluations and management audits of federal agencies and programs. The benefits of increasing GAO staff—like cost savings—will significantly exceed the associated costs.
Congress also should expand the mission and resources of the CBO. First, the CBO should be charged with reengineering and managing the legislative budget process for the federal government (including Congress’ internal budget). It should approve the formats of all budget documents, including the budget resolution. It should coordinate spending and encumbrance controls. It should prepare and issue the annual national fiscal report. Finally, the CBO should establish a formal futures unit to issue long-term projections and risk assessments for federal agencies.
Congress should expand the CRS’ mission and rename it accordingly (e.g., Institutional Services Office). Its mission should be expanded from that of a legislative think tank to an enterprise support unit. It should provide a full range of administrative support services to Congress, including accounting, diversity, human resources, training, procurement, technology, data security, records/document management, disaster recovery, constituent communications, asset management and policing. It should include the Capitol Architecture, Capitol Police and technology Assessment functions. It should centralize and streamline functions that could reduce costs (e.g., travel, purchasing and leasing).
Congress should protect the leaders of these units from political interference with long terms and a bipartisan selection method (e.g., the US Comptroller General model). It should increase the number of bipartisan, professional staff as indicated above and refrain from adding partisan staff positions until the joint bipartisan staff positions are filled. It should conduct annual market studies to ensure that staff compensation is competitive and upgrade its staff compensation system. It should ensure that all employee benefits, including health care, are competitive as well. Finally, it should explore feasible options for reducing other costs that exacerbate staff turnover (e.g., housing and child-care).
Investments such as those outlined above are essential to bolster Congress’ independence, but so are tighter controls over lobbyists. First, Congress should toughen relevant laws (e.g., curb lobbyist fund-raising, limit corporate donations, ban member lobbying and stock ownership and facilitate corruption prosecutions). Second, it should broaden the definition of lobbying, require registration for all lobbyists and implement a new lobbyist registration and tracking system. Third, it should establish term limits for registered lobbyists. Finally, it should mandate the full public disclosure of all lobbying activities, including contributions and bill drafting.
Revamping Congress’ Budget, Oversight and Legislative Processes
Congress needs a better committee structure for doing legislative work. To that end, it should consolidate the committees around broad policy imperatives (e.g., global affairs, security, economy, education, community, health, environment, infrastructure and governance) and reorganize subcommittees around programs. It should clarify the alignment of committees, subcommittees, caucuses and executive agencies. It should empower each committee to approve budgets and budget amendments, conduct oversight and present legislation for its respective policy portfolio. It should establish a Joint Future Committee to study trends, assess risks, present long-term forecasts and issue formal advisory opinions on proposed laws with multi-year impacts.
Congress must involve all elected representatives with the people’s work. It should distribute power from legislative leadership to committees. It should empower committee chairs to reorganize subcommittees and offer legislation and amendments for floor votes. It should adopt cumulative voting for selecting leadership and committee chairs. It should use its bipartisan resources to help committee/subcommittee members share specialized expertise with other members. It should conduct regular bipartisan policy deliberations, legislation development sessions and pre-vote negotiations.
The budget, appropriation and authorization process should be redesigned. The new budget process should have a rolling six-year horizon, coupled with an annual review process. This would enable Congress to review and modify the budget for the next budget year. Should Congress fail to act, the budget for the next fiscal year would be automatically approved. The new budget process should fully integrate operating and capital budgets, bind expenditures to performance measures and incorporate formats that facilitate easy budget monitoring by CBO staff as well as the public. Congress, acting through the CBO, should drive the budget process.
Congress must bolster its oversight of the Executive Branch. The CBO should design a more robust oversight program. Congress should clarify the reporting relationships between committees and the federal agencies they monitor. It should establish a mechanism by which committees can recommend the nullification of illegal executive orders and policies. It should design and implement an efficient sunset mechanism for terminating wasteful programs (i.e., tag existing programs for potential sunset, assigns the sunset review to a suitable committee and track sunset status on a public website).
Congress should modify its operating rules and procedures to encourage pragmatic, bipartisan action. For example, it should design and adopt a standardized bipartisan bill drafting model (e.g., bipartisan policy retreats, structured feasibility testing and preliminary voting). It should conduct more committee-based delegations to solicit policy input (e.g., at suitable venues in other member districts). It should explore other venues to forge bipartisan relationships (e.g., annual member-family retreats and staff briefing and debate sessions).
Finally, Congress should streamline other operating rules and floor procedures, including bill-writing and amendment processes. It should modernize scheduling procedures to minimize conflicts, reduce travel time and maximize legislative productivity (e.g., regular committee meetings and a digital committee calendar). It should launch a system to enable citizens to track proposed bills, amendments, fiscal impacts and member votes. Most importantly, it should terminate or modify archaic rules that impair its effectiveness. For instance, it should eliminate or refine the filibuster (e.g., reduce the 60 percent cloture threshold to 55 percent or change the formula from senators to constituents).
Restoring Congress’ Constitutional Purpose
“If Congress can get its act together, it can roll over the president…It can do anything.”
- Supreme Court Justice Antonin Scalia
If Congress can “get its act together” and serve the public interest above all others, the benefits will be generational. A return to bipartisan civility, collaboration and compromise. The capacity, independence and clout to confront big issues. Far-sighted policies and legislation. Stronger executive accountability. More efficient government. Restored public trust.
Congress will not reform itself. But, if voters demand that their elected leaders work together to solve problems—if they reject those who don’t—reform will be possible. The House Select Committee on Modernization, which operated in a bipartisan fashion (with an equal number of Democrats and Republicans), is cause for optimism.
If House and Senate leaders come together to charter a bipartisan joint committee on congressional reform, and grant that group sufficient authority to develop a meaningful package of reforms, Congress could reclaim its vital constitutional role—and regain the respect of the American people.